Santu @ Sanjay Kumar vs The State of Bihar

Ashwani Kumar Singh, J.—Heard Sri Suraj Narayan Yadav, learned counsel for the appellant and Mr. S.A. Ahmad, learned APP for the State. The instant appeal arises out of the judgment dated 6.6.2011 and the order dated 9.6.2011 passed by the learned 1st Additional Sessions Judge-Cum-Special Judge (NDPS Act), Purnea in Special Case No. 16 of 2008 whereby the appellant has been convicted for the offence punishable u/s 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short "the NDPS Act") and sentenced to undergo RI for ten years and to pay a fine of Rs. 1 Lakh and in default to undergo imprisonment for a further period of six months.

The prosecution case, in brief, is that on 5.4.2008 the informant Arvind Kumar, Officer Incharge of Banmankhi Police Station received confidential information that one person is selling ganja in Rajhat near Rain Basera. He immediately informed the Sub-Divisional Police Officer, Banmankhi in this regard. The Sub-Divisional Police Officer, Banmankhi, on receipt of the information, came to the police station. Accordingly, the informant along with Sub-Divisional Police Officer, Banmankhi, Sub-Inspector of Police, R.B. Chaudhary and Constables Subh Narayan Singh, Chandra Shekhar Singh, Sanjay Kumar and Madan Kumar proceeded from the Police Station at 2.30 p.m. after recording sanha for verification and inquiry in respect of information received by him. At about 2.40 p.m., they reached at Rajhat near Rain Basera. The informant noticed that one person on seeing the police jeep started fleeing away. The constables and other members of the raiding party apprehended the said person after some chase. He was searched in presence of two independent witnesses and on search 50 packets of ganja, each containing 5 gram and weighing 250 gram in all were recovered from the two pockets of his shirt. On being asked by the informant, he disclosed his name as Mohan Sharma @ Mahangu. On being asked by the informant, he could not produce any paper or document relating to the said ganja nor could give any satisfactory reply. Accordingly, the ganja so recovered was seized and a seizure list was prepared in presence of two independent witnesses. The apprehended accused further disclosed to the informant that Sanjay Kumar @ Santu and Santosh Kumar both sons of Sri Bodh Narayan Bhagat, resident of village and P.S.-Bihariganj, District-Madhepura used to trade in ganja in huge quantity from their residence. Accordingly, the informant arrested the accused Mohan Sharma @ Mahangu and proceeded with the police towards Bihariganj for verification and inquiry regarding the information received from the arrested accused. Firstly, they reached at Bihariganj Police Station at 5.10 p.m. and informed the Officer Incharge of Bihariganj Police Station regarding the information received by them and, thereafter, they raided the house of the appellant along with the Officer Incharge of Bihariganj Police Station at 5.15 p.m. In presence of two independent witnesses, the house of the appellant was searched. The appellant was found present in his house whereas his brother, namely, Santosh Kumar, another co-accused, was found missing. In course of search, seven packets of ganja kept in red polythene packets weighing 43 kg and a balance of brass were recovered from Diwan (Palang) kept in a room of the house. The informant has also alleged that Rs. 3,075/- in cash was also recovered from possession of the appellant. On being asked by the informant, the appellant could not produce any document relating to the recovery of ganja and accordingly, the informant seized the same in accordance with law.

On the basis of the written report of the informant Arvind Kumar, the Officer Incharge of Banmankhi Police Station, Banmankhi P.S. Case No. 38 of 2008 dated 5.4.2008 was registered against the appellant, his brother Santosh Kumar and one Mohan Sharma @ Mahangu and P.W. 6 Ram Prakash Choudhary was appointed as the investigating officer of the case. On conclusion of investigation, the police submitted charge sheet against the accused persons. The learned Special Judge took cognizance of the offence and after supplying the police papers u/s 207 of the Code of Criminal Procedure framed charge u/s 20(B) of the NDPS Act against the accused persons. They pleaded not guilty to the charge and, accordingly, the trial commenced.

In order to prove the charge the prosecution has examined eleven witnesses, in all.

P.W. 3 Ashish Ranjan and P.W. 4 Ram Sharan Poddar are witnesses to the seizure of ganja from possession of co-accused Mohan Sharma @ Mahangu. They have proved their respective signatures on the first seizure list which have been marked as Ext. 1/2 & 1/3 respectively. The said witnesses are not concerned with the alleged recovery from the house of the appellant. However, they have not supported the prosecution case and have been declared hostile as they stated that the police obtained their signatures on a blank sheet of paper.

P.W. 1 Doman Chaudhary and P.W. 2 Ramesh Gupta are witnesses to the seizure of ganja made from the house of the appellant. They have also proved their respective signatures on the seizure list which have been marked as Ext. 1 and Ext. 1/1 respectively. They too have not supported the prosecution case and have been declared hostile. They stated that their signatures were taken on the blank paper and they were completely unaware about any seizure of contraband ganja from the house of the appellant.

P.W. 5 Arbind Kumar is the informant of the case. At the relevant time, he was the Officer Incharge of Banmankhi Police Station. He made the search and seizure at both the places as indicated hereinabove. He recorded the confessional statement of co-accused Mohan Sharma @ Mahangu at 3.10 p.m. on 5.4.2008 at the first place of occurrence. He has proved both the seizure lists which have been marked as Ext. 3 and Ext. 3/1 respectively. He also proved the confessional statement of co-accused Mohan Sharma @ Mahangu which has been marked as Ext. 2. He further proved his self-statement and the formal FIR which have been marked as Ext 4 and Ext. 5 respectively. In his examination-in-chief itself, he has stated that he handed over investigation of the case to P.W. 6 Ram Prakash Chaudhary at the place of occurrence. In chief, he corroborated his self-statement. However, in cross-examination, he admitted that before conducting raid it was not verified as to who is the owner of the house from where the recovery of ganja was made. He also admitted that in respect of the information received regarding possession and trade of ganja, in question, nothing was taken down in writing and no such written information was ever sent to the immediate superior officer even after the search and seizure were effected. He stated that samples were drawn from all the seven packets of ganja recovered from the house of the appellant and thereafter, two samples of 250 gram each were prepared. The remaining ganja i.e., 42 kg and 500 gram in seven packets were sealed separately first, and thereafter, all the seven sealed packets were further sealed together in one packet. He admitted that nothing has been recorded in the written report or the seizure list in respect of seal put on the seized contraband ganja. According to him, the two samples of ganja of 250 gram each collected from the seven packets were marked as 1 & 2 respectively for identification. He admitted that the seized ganja was not available in the court. He further admitted that he has not stated in his written report that the same has been deposited in the Malkhana.

P.W. 6 R.P. Choudhary is the investigating officer of the case. He was all along with the informant (P.W. 5) right from proceeding for the alleged search and seizure up to institution of the FIR. He was handed over investigation of the case by P.W. 5, the Officer Incharge of Banmankhi Police Station, even before institution of the case. In his deposition, he has named the witnesses examined by him in course of investigation but, he did not name P.W. 1 Doman Choudhary and P.W. 2 Ramesh Gupta who are witnesses of seizure list i.e., Ext. 3/1. He stated in his examination-in-chief that he came at the police station with arrested accused and the seized material and the samples of the seized material were drawn at the police station. According to him, the samples were brought to the court of the Chief Judicial Magistrate, Purnea and the same were sealed in presence of the Magistrate. He further stated that both the samples drawn by him were sent to the Forensic Science Laboratory for report through Chowkidar Liladhar Paswan. He also stated that the charge sheet was submitted by him even without obtaining test report from the Forensic Science Laboratory.

In cross-examination, he admitted that the material exhibits were not produced in the court. He further admitted that on 20th May, 2008, the samples were brought in court and on that day, it was ordered that Sri B.K. Mishra, Judicial Magistrate, 1st Class, would seal it. On that day, the duly appointed Judicial Magistrate was not available and so he returned to the police station. He further admitted that the samples were sealed on 2.6.2008 in the court. He also admitted that the entire contraband ganja was not brought in the court. According to him, the samples were taken from the seized material in the police station and were brought to the court for sealing. He further admitted that it was the learned Judicial Magistrate, who sealed the samples of ganja in box. He stated that he had brought two samples of ganja containing 100 gram each in court from the seized contraband after breaking the seal of the seized article. He also admitted that he came to court regularly from 25.9.2008 to 31.5.2008 but the samples were not sealed and on all the three days, he had brought the unsealed samples to court. He admitted that there is nothing written in the case diary regarding sealing of the seized material at the place of occurrence. He stated that the samples were taken out on 27.5.2008 from the seized material. He conceded in cross-examination that the Officer Incharge of Banmankhi Police Station (P.W. 5) did not inform his official superior in writing about the information received from confidential sources. He also admitted that there is no entry in the case diary regarding deposit of the seized ganja in the Malkhana. He further conceded that P.W. 5 Arbind Kumar did not disclose in his statement made u/s 161 of the Code of Criminal Procedure that he ever drew any sample from the seized material or sealed the same.

P.W. 7 Chandra Shekhar Singh, P.W. 8 Madan Kumar and P.W. 9 Surya Narayan Prasad are constables posted in Banmankhi Police Station who accompanied the raiding team. In their deposition, they have supported the seizure of contraband ganja from the two places as alleged in the FIR.

P.W. 10 Ashok Kumar is the Officer Incharge of Bihariganj Police Station, who accompanied the Officer Incharge of Banmankhi Police Station in the alleged raid carried out on the house of the appellant. He produced three packets of ganja in court, which were marked as material Ext 1. All the three packets produced by him were taken out from a plastic bag which was not sealed. He stated that the Chowkidar of Banmankhi Police Station had given him the material exhibit and told him that the rest of the packets of ganja were destroyed by rats in the Malkhana. In cross-examination, he admitted that the material exhibit produced in the court was not brought by him and he saw the same for the first time in the court.

P.W. 11, Manish Kumar, the Sub-Divisional Police Officer, Banmankhi was the leader of the raiding team. He admitted that no information was ever given to him in writing by the Officer Incharge of Banmankhi Police Station. He further admitted that Banmankhi Police Station is in Purnea district whereas Bihariganj is in Madhepura district.

It would be pertinent to note here that the test report of Forensic Science Laboratory was subsequently received in court and the same has been marked as Ext 6 u/s 294 of the Code of Criminal Procedure. The test report is dated 14th January, 2009 and the same was sent to the Judicial Magistrate-1st Class, Purnea vide letter dated 4th September, 2009 which was received in the court on 19th January, 2011. From the record, it appears that the appellant filed a petition on 3rd February, 2011 to call the expert/witness from the Forensic Science Laboratory for cross-examination as the report received in the unsealed cover was marked as exhibit and the authenticity of the same was doubtful. However, the said petition dated 3rd February, 2011, filed on behalf of the appellant was rejected by the trial court vide order dated 30th March, 2011.

In order to appreciate the test report sent under the signatures of the Technical Officer, and the Director Incharge, Forensic Science Laboratory, Government of Bihar, Patna, it would be apt to quote the same which reads as under:-

Office of The Director, Forensic Science Laboratory Bihar, Patna-800023 Report F.S.L. No....585/2008....Patna, the 14-1-2009

From, The Director, Forensic Science Laboratory, Government of Bihar, Patna.

To The Judicial Magistrate, 1st Class, Purnea.

Your memo No..........375........dated...........02/06/08........advising dispatch of.......two.......parcels per special messenger........Chowkidar 6/1 Dharam Lal Paswan........which were received in this office on...03/06/08.....in connection with....Banmankhi....P.S. Case no. 38/08...dated....05/04/08......U/S...........20(B) N.D.P.S.

Act..........................................................................................

Mode In Which Parcels Were Found to be Packed on Receipt and Description of Seal

The parcels consisted of .......two wooden boxes marked as ''A'' and ''B''...... enclosed within .........cloth...........................covers which were duly sealed with impressions of seal corresponding with the seal impression forwarded.

It contained,

The wooden box marked as ''A'' contained in tin dibba which is further marked as ''A'' said to contain sample of Ganja seized from the possession of Mohan Sharma alias Mahangu.

The wooden box marked as ''B'' contained in tin dibba which is further marked as ''B'' said to contain sample of Ganja seized from the possession of Sanjay Kumar alias Santu.

Description of Articles Contained In Parcels

The two tin dibbas marked ''A'' and ''B'' each contained some dry-brown pressed flowering and fruiting vegetable substances.

Result of Examination

The dry-brown pressed flowering and fruiting vegetable substances contained in the two tin dibbas marked ''A'' and ''B'' described above were found to be Ganja containing Tetra Hydro Cannabinol (T.H.C.) as their chief intoxicating ingredient.

Ganja is the flowering and fruiting tops of the female plant of Cannabis-Sativa.

Counter Signed

(Suresh Paswan) Technical Officer Forensic Science Laboratory Govt. of Bihar, Patna

(Dr. Shyam Bihari Upadhyay) Director Incharge Forensic Science Laboratory Bihar, Patna

The Ganja alleged to have been recovered from the house of the appellant was the primary evidence. It was found in seven packets. If the contraband ganja seized were found in packages/containers, the same should have been serially numbered for purposes of identification. Besides the serial number, the gross and net weight of the contraband ganja should have been indicated on the packages. The samples from the substances seized ought to have been drawn on the spot of recovery in presence of search witnesses and the appellant and a mention to this effect ought to have been made in the Panchnama. The signature of witnesses and the appellant should have been taken on each sample. Admittedly, the packets were not serially numbered in the present case and the gross and net weight of ganja were not indicated on the packages. The samples were not drawn in presence of the witnesses and the appellant and their signatures were not taken over the same.

In order to instill confidence, the samples should have been sent to the Laboratory expeditiously. The Chemist/Expert who examined the same ought to have recorded its weight in the test memo. Expeditious analysis of the Narcotic Drugs and Psychotropic Substances is of essence to all the proceedings under the NDPS Act. All results both the quantitative and qualitative should have been entered in the test report. The remnants of the samples should have been returned to the office from which they were received.

In the present case, P.W. 5 Arbind Kumar, the Officer Incharge of Banmankhi Police Station, who seized the ganja and prepared the seizure list, stated that the samples were prepared and sealed by him on the spot and he had put his official seal over them but the investigating officer of the case, namely, Ram Prakash Choudhary (P.W. 6) contradicted him in material particulars. He stated that he did not receive any sample drawn and sealed by the Officer Incharge of Banmankhi Police Station in course of investigation. According to him, P.W. 5 Arvind Kumar, did not even make such statement before him in course of investigation. He stated that the samples were drawn by him in the police station after breaking open the seal of the seized article on 27th May, 2008 and for three days from 25.9.2008 to 31.5.2008, he came to the court continuously with unsealed samples. According to him, the samples were sealed by the Judicial Magistrate on 2nd June, 2008 and sent to the Forensic Science Laboratory at Patna on the same day. Admittedly, the samples were not prepared at the place of seizure in presence of the accused and witnesses of the seizure list. The test memo does not indicate the quantity of ganja received for analysis. There is nothing to show that the remnants of the samples were ever sent back and disposed of in accordance with law.

From the test memo, it would appear that a wooden box marked as ''B'' contained a dibba which was further marked as ''B'' said to contain sample of ganja seized from possession of the appellant. As noted above, the Officer Incharge of Banmankhi Police Station has stated in his deposition that he prepared two samples of ganja weighing 250 gram each when the recoveries were made from the house of the appellant.

I further find that P.W. 6, the investigating officer of the case has stated in his deposition that he prepared two samples of 100 gram each from the contraband ganja seized from the house of the appellant and got it sealed in presence of the Judicial Magistrate. It is surprising that only one sample was sent to the Forensic Science Laboratory for test. It is not known what happened to the other sample said to have been drawn by the investigating officer and sealed in presence of the Magistrate. It is also not known what happened to the two samples collected by the Officer Incharge of the police station.

The prosecution failed to produce any inventory of the seized material in the court. The investigating officer of the case (P.W. 6) and the Officer Incharge of the police station (P.W. 5) stated that the seized articles were in seven packets. However, P.W. 10, Ashok Kumar, the Officer Incharge of Bihariganj Police Station produced three packets in court in an unsealed condition which were marked as material Exhibit-1. He admitted that he had no personal knowledge about the articles produced in the court. He further admitted that the articles were handed over to him by one Chowkidar of Banmankhi Police Station, namely, Liladhar Paswan, who told him that the remaining packets of ganja were destroyed by rats in the malkhana. The aforesaid Choukidar has not been examined in court. It is surprising as to why the prosecution withheld him. According to P.W. 10, the chowkidar had handed over the material exhibit to him on the day on which the same was produced in court. This means that on that day the Chowkidar Liladhar Paswan was present in the court. The prosecution has not explained any reason for his non-examination.

The Officer Incharge of Banmankhi Police Station and the Investigating Officer of the case have not stated in their deposition about deposit of the seized contraband ganja from the house of the appellant in malkhana. There is nothing on record to show that the seized ganja was deposited in malkhana. The malkhana register has not been produced in the court. The Incharge of the malkhana has also not been examined by the prosecution in course of trial.

The case of the prosecution is that the samples were sealed by a Judicial Magistrate, namely, Shri B.K. Mishra. However, the prosecution has failed to examine the learned Judicial Magistrate in course of trial.

The ganja, in question, was purportedly seized on 5th April, 2008. Admittedly, it was not produced before the Magistrate immediately. Unsealed samples were taken out from the seized material in absence of the appellant on 27th May, 2008, after breaking open seal of the seized material. The unsealed samples were purportedly sealed on 2nd June, 2008 and were sent to the Forensic Science Laboratory at Patna. There is an undue delay of 27 days in producing the sample before the Magistrate concerned and to top it all the report dated 14th January, 2009 appears to have been forwarded on 4th September, 2009 and was received in the court on 19th January, 2011. It is doubtful that the samples produced before the Magistrate for sealing and sending to the Forensic Science Laboratory were actually taken out from the seized material. It is extremely difficult for this Court to place any reliance on such a test report alleged to have been sent by the Forensic Science Laboratory which has been marked as an exhibit U/s. 294 of the Code of Criminal Procedure.

The case of the appellant would succeed on another ground too. I find from the evidence on record that the informant proceeded to the two places for carrying raid on the basis of some information received by him. He intimated the Sub-Divisional Police Officer, Banmankhi on phone regarding the information received by him pursuant to which he came to the police station. There was enough time for the informant to record the information received by him in writing and report about the same to his immediate superior officer. The Officer Incharge of Banmankhi Police Station and the Investigating Officer of the case who have been examined as P.W. 5 & 6 in course of trial have admitted in cross-examination that no information was ever reduced in writing and forwarded to the immediate superior officer. The Sub-Divisional Police Officer, who has been examined as P.W. 11, has also corroborated this fact in his evidence.

At this stage, it would be relevant to refer to Section 42 of the NDPS Act, which reads as under:-

Power to entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into an search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and if he thinks proper, arrest and person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso to his immediate official superior.

In Abdul Rashid Ibrahim Mansuri v. State of Gujarat since reported in Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, , a three Judge Bench of the Apex Court held that compliance with Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith send a report to immediate superior officer would cause prejudice to the accused. In Sajan Abraham Vs. State of Kerala, , a three Judge Bench of the Apex Court held that Section 42 was not mandatory and substantial compliance was sufficient. The conflicting opinions regarding the scope and applicability of Section 42 of the NDPS Act is no more res integra and stand answered by a Constitution Bench judgment of the Apex Court in Karnail Singh Vs. State of Haryana, . In the said judgment, the Apex Court noticed, if there is total non-compliance with requirements of sub-sections (1) and (2) of Section 42, the same would be impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The Apex Court in paragraph-35 of the judgment in Karnail Singh (supra) held as under:

In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the mover either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.

From the evidence as discussed, hereinabove, apparently, there is absolute non-compliance with the provisions of Section 42 of the NDPS Act and in view of Constitution Bench judgment of the Apex Court in case of Karnail Singh (supra), the conviction of the appellant would clearly be unsustainable on this ground alone. For the reasons stated, hereinabove, the appellant is entitled to an order of acquittal and consequently, the appeal is allowed. The judgment of conviction and order of sentence recorded against the appellant are set aside. Since the appellant is in jail, he is directed to be released forthwith, if not required in any other case.