Sri Ram Sah vs State of Bihar

Honourable Mr. Justice Ashwani Kumar Singh

The present appeal is directed against the judgment and order dated 9.1.2009 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Buxar, N.D.P.S. Act in N.D.P.S. Case No. 4 of 2004 arising out of Rajpur P.S. Case No. 94 of 2004 by which the appellant has been convicted under sections 20(b)(ii)(C) of the Narcotic Drugs and psychotropic Substance Act, 1985 (hereinafter referred to as "N.D.P.S. Act") and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo two years simple imprisonment. P.W.4, Farooque Hussain Ansari, who was the officer-in-charge of Rajpur Police Station, received secret information on 30.9.2004 at 7.15 a.m. that the appellant smuggles Ganja illegally and Ganja has been kept in his house in huge quantity for the purpose of smuggling. He made entry of this information in the Station Diary and gave information to this effect by telephone to his superior officer. He contacted P.W.11, Sri Radha Mohan Ram, the Block Development Officer, Rajpur, and made a request to him in order to assist in conducting raid and search in the house of the appellant. At 7.40 a.m., the officer-in-charge of the police station proceeded for conducting raid and taking necessary action along with Block Development Officer, Rajpur, Sub Inspector of Police Rameshwar Yadav, Assistant Sub Inspector of Police Ramji Singh and armed police personnel.

At 8.10 a.m., they reached at the door of the appellant and informed him that they have received information that he is indulged in business of smuggling Ganja illegally on large scale and that he has kept Ganja in his house for its illegal sale. They told him that they wanted to search his house in presence of the Block Development Officer, Rajpur.

In the first information report, it has been stated that the officer-in-charge gave in writing to the appellant to give his consent for search of his house and on getting consent of the appellant, his house was searched in presence of the two local witnesses, namely, Harendra Kumar Singh and Baban Pandey, both residents of village- Saraon, P.S.- Rajpur, District- Buxar. In course of search three bundles of copy were found kept concealed in the husk in a mud built, tiled roof, east facing room. On opening the three bundles of copy some articles like Ganja were found packed in three separate plastic packets. It is written in the self statement of the officer-in-charge that on being questioned the appellant told that recovered articles were Ganja which he had brought from Lamlam Bazar, Imphal, Manipur on purchase from one Mani for its sale. On further enquiry, the appellant disclosed that he sales Ganja to Laxman Chaubey of village- Nonaura and Bidyarthi Sah of village-Rampur, both under Rajpur Police Station, Buxar. It has further been alleged that the appellant disclosed that two of his co-villagers, namely, Birendra Sah son of Ramji Sah and Ajay Sah son of Mahatim Sah also do smuggling of Ganja by its purchase from the aforesaid Mani of Lamlam Bazar and sales it to the aforesaid two persons of village- Nonaura and Rampur and they are his associates in the smuggling of Ganja. On weighing, each of the three packets so recovered was found of eight kilograms making the total weight of the recovered Ganja to be twenty four kilograms.

The informant alleges in his self statement that he took out 100 grams Ganja from each packet for sample, kept the same in three tin packets, sealed them with identification mark as B-1, B-2, B-3 and sealed the remaining Ganja of three packets for original exhibit with identification mark as A-1, A-2, A-3.

On the basis of the aforesaid self statement, the officer-in-charge of Rajpur Police Station drew formal first information report of Rajpur P.S. Case No. 94 of 2004 dated 30.9.2004 under sections 20(b)(ii)(C), 27A, 25 and 29 of the N.D.P.S. Act against the appellant and four others and entrusted the investigation of the case to P.W.1, Sheo Bihari Singh. The police took up the investigation and submitted charge-sheet against the appellant and two others, namely, Birendra Sah and Ajay Sah. The court below took cognizance of the offence and on supply of police papers in terms of section 207 of the Code of Criminal Procedure, charges were framed against them. The appellant and others were charged for having committed the offence punishable under sections 20(b)(ii)(C) and 27A of the N.D.P.S. Act. The appellant and others pleaded not guilty to the charges and claimed to be tried. Accordingly, the trial commenced.

P.W. 1 Sheo Bihari Singh, while being examined in court, produced three sealed bundles. He states that he has brought the same from Thana Malkhana and the sealed bundles contain initial of the Special Judge, Buxar as well as the signature of the Police Officer and the witnesses. The material exhibits were proved by him, which were marked as Exts. I, I/1 and I/2. He states that he had recorded the statement of the witnesses in course of investigation and they all had supported the prosecution case. He states that the samples of seized Ganja were sent to the Forensic Science Laboratory pursuant to the order passed by the court. One Upendra Oraon had received the samples in the Forensic Science Laboratory and had issued receipt in that regard which has been proved by him and marked as Ext.6 in course of trial. He has also proved the confessional statement of the appellant recorded by the informant Farooque Hussain Ansari which has been proved and marked as Ext.-7. He states that he had produced the samples of Ganja marked as Exts. B-I, B-II & B-III and the remaining Ganja marked as Ext.- A-I, A-II & A-III in the court when the appellant was forwarded to court for judicial remand. However, the District Judge ordered that the seized Ganja should be kept in the Thana Malkhana and the samples should be sent to the Forensic Science Laboratory. In cross-examination he admits that the case number written over the material exhibits is in different ink. He also admits that he has not put his signature over the material exhibits. He further admits that he was not a member of the raiding team and was not present with the raiding team when the alleged search and seizure of Ganja, in question, was made. He admits that the confidential information regarding Ganja having been kept in the house of the appellant was received in the police station at 7.15 a.m. on 30.9.2004 and station diary entry in this regard was immediately made. At 7.40 a.m. the police party proceeded to the house of the appellant from the police station for conducting the search and seizure. The police party reached the house of the appellant at 9.30 a.m. However, he admits that the aforesaid station diary entry is not before him. He also admits that though the seizure list of Ganja was prepared at the place of occurrence itself but it is not mentioned so in the seizure list. He admits that though the samples of Ganja were drawn and sealed as well as the remaining Ganja were also sealed in tin boxes at the place of occurrence itself but these facts are not mentioned in the seizure list. In further cross-examination, he states that the material exhibits produced in the court have been entered into Malkhana register but the said fact has not been noted by him in the case diary. He also admits that the number given over the material exhibits in the Malkhana have been erased. In reply to the Court''s question, P.W.1, the investigation officer of the case, admits that the house from which the Ganja in question was recovered was situated on Khata No. 57, Plot no. 42, having an area of 15 decimals and the same belonged to Jeetan Sah, Bhola Sah and Ram Bilash Sah. He denies the defence suggestion that the investigation of the case was conducted in a perfunctory manner.

P.W. 2 Devendra Kumar Singh, admits his signature over the seizure list which has been marked as Ext-1. He also admits his signature over the material exhibits which have been marked as Exts. 1, 1/2 and 1/3 in course of trial. However, in examination-in-chief itself he states that Ganja, in question, was neither seized nor recovered in his presence. At this stage, he has been declared hostile by the prosecution.

P.W.3 Baban Pandey also admits his signature over the seizure list. He further admits his signature over three sealed packets which have been marked as Exts.1/4, 1/5 and 1/7 respectively. However, in examination-in-chief itself he states that neither Ganja in question was recovered nor the same was seized in his presence. At this stage, he has also been declared hostile by the prosecution.

P.W.4 Farooque Hussain Ansari, as stated above, was the officer-in-charge of Rajpur Police Station on 30.9.2004. He states that he received confidential information that the appellant deals in Ganja and in his house smuggled Ganja has been kept. He entered the said information in the station diary, transmitted the said information to his superior officers and requested the Block Development Officer, namely, Radha Mohan Ram, to assist in conducting raid in the house of the appellant. At about 7.40 a.m. on 30.9.2004, he proceeded with police party and the Block Development Officer for conducting raid in the house of the appellant. They reached his house at about 8.40 a.m. The appellant was duly informed by him in writing that the raiding team wanted to search his house. The appellant gave permission in writing for conducting search in his house. Thereafter, in presence of the two independent local witnesses, namely, Devendra Kumar Singh (P.W.2) and Baban Pandey (P.W.3), search was carried out in his house. In course of search, three bundles of copy were found kept concealed in husk in east facing room. On opening bundles of copy Ganja was found packed in three separate plastic packets. On enquiry, the appellant told that he had brought the recovered Ganja from Imphal, Manipur, and sales the same through Laxman Chaubey.

P.W.4 further states that the appellant also made disclosure that his co-villagers, namely, Birendra Sah and Ajay Sah were also involved in smuggling Ganja. On weighing, each of the three packets so recovered was found of 8 kilograms making the total weight of recovered Ganja to be 24 kilograms. He further states in his examination-in-chief that he took out 100 grams from each packet for sample and sealed them separately in three packets with identification mark as B-1, B-2 & B-3 and sealed the remaining Ganja of three packets for original exhibits with identification mark as A-1, A-2 and A-3. He proved the material exhibits containing identification mark as A-1, A-2 and A-3 which were already marked as Exts. 1, 1/1 and 1/2 respectively. He states that in presence of the seizure list witnesses and the Magistrate (Block Development Officer) as well as the members of the raiding party he put his signature over the samples drawn and the packets of remaining Ganja. The signature of the appellant was also obtained over the samples and the packets of remaining Ganja. The seizure list was prepared over which the witnesses voluntarily put their signature and a copy of the seizure list was also handed over to the appellant on which he has made endorsement regarding recovery of three packets of Ganja from his house. He has proved the seizure list which has been marked as Ext.2. He has also proved the writing and signature of the appellant over the seizure list which has been marked as Ext.2/1.

P.W.4 further states that he apprehended the appellant and informed the senior officers by telephone in this regard. He recorded his self statement which has been proved and marked by him as Ext.3. He, thereafter, came to the police station and drew the formal first information report. The formal first information report has also been proved by him which has been marked as Ext.4. He made P.W.1 Sheo Bihari Singh, the investigating officer of the case. According to him, the seized Ganja was kept in Malkhana. In cross-examination he admits that the confidential message was received by him on telephone. After raid when he came back to the Police Station, the Chaukidar had shown him the house of the appellant. At that time, the appellant was sitting at his door. On seeing the police party, he made no effort to escape. The Block Development Officer had put his initial over the seizure list. He denies the defence suggestion that the Block Development Officer was not present when the alleged seizure was made. He also denies the defence suggestion that no seizure of Ganja was made from the house of the appellant and he had implicated him at the instance of one Suresh Sah.

P.W.5 Ramji Singh, an Assistant Sub Inspector of Police, was also a member of the raiding party. He corroborates the statement of P.W.4 Farooque Hussain Ansari. In cross-examination he has also denied the defence suggestion that no recovery was made from the house of the appellant and the appellant has falsely been implicated in the present case.

P.W.6 Ramesh Chandra Pandey, while being examined in court, states that on 30.9.2004 Ganja, in question, was not recovered from the house of the appellant. According to him, it was recovered from an open field which earlier belonged to him but subsequently by a deed of exchange the said field was transferred to one Suresh Sah. At this stage, he has been declared hostile by the prosecution.

P.W.7 Nandji Pandey flatly denies to have made any statement before the police and, as such, at the outset the prosecution declared him hostile.

P.W.8 Bhola Sah states in his examination-in-chief that the alleged Ganja in question was recovered from the field of Suresh Sah. The said field is situated west to the house of the appellant. He further states that he is not aware of the fact that Birendra Sah and Ajay Sah are engaged in illegal trade of Ganja. At this stage, the prosecution has declared him hostile.

P.W.9 Ramkant Pandey and P.W.10 Mangla Singh have also not supported the prosecution. They say that the alleged Ganja in question was recovered from an open field.

P.W.11 Radha Mohan Ram is the Block Development Officer. He states that on 30.9.2004, he was posted as Block Development Officer, Rajpur. On that date at about 7.40 a.m., the informant Farooque Hussain Ansari informed him about the raid to be conducted in the house of the appellant and in the light of the said information he went together with the police party to village Saraon. A written intimation was given by the police party to the appellant for carrying out search of his house. The appellant also gave his consent in writing for search of his house and, thereafter, in presence of the witnesses, his house was searched. In course of search, three bundles of copy were found in the husk. On opening the bundles of copy, Ganja was found packed in three separate packets. He has proved his signature on the packets of Ganja which were marked as Exts. 1/8, 1/9 and 1/10 respectively. He has also proved his signature on the seizure list which has been marked as Ext. 1/11. He has also proved his signature on the sample of the seized Ganja which has been marked as Ext. 1/12. In cross-examination he admits that his statement was never recorded by the police in course of investigation. He was informed by the officer-in-charge of the police station on telephone. He had not taken any permission from any superior officer for going together with the police party to the house of the appellant. He further admits that he cannot say as to who are the other members of the family residing in the house, in which, the alleged search and seizure was made. He did not know the Khata number and plot number etc. of the house in which raid was conducted. On being questioned, he could not disclose name of the person who had brought equipments for weighing seized Ganja. He states that after the alleged search and seizure, he went together with the police party to the police station, stayed there for about 15-20 minutes and, thereafter, came back to his office. He denies the defence suggestion that the appellant was falsely implicated in this case.

It is relevant to note it here that from the office of the Director, Forensic Science Laboratory, Bihar, Patna, a report bearing F.S.L No. 690 of 2004 dated 17.7.2007 was transmitted to the District and Sessions Judge-cum-Special Judge, Buxar, by post, which was received in the court of 23.7.2007. On 1.5.2008, the Special Public Prosecutor filed a petition before the trial court praying therein to admit F.S.L. report in evidence u/s 293 of the Code of Criminal Procedure. On 1.5.2008, the trial court adjourned the case to 13.5.2008 and held that if the defence has any objection in receiving the F.S.L. report in evidence, it may file its objection. On 13.5.2008, since no objection was raised by the defence, the formal proof of the F.S.L. report was dispensed with and the same was marked as Ext.8 and evidence of the prosecution was closed on the same date.

The case was, thereafter, adjourned to 20.5.2008 for recording the statement u/s 313 of the Code of Criminal Procedure. After closure of the prosecution case, the trial court examined the appellant u/s 313 of the Code of Criminal Procedure. The appellant in his statement u/s 313 of the Code of Criminal Procedure denied the factum of seizure of Ganja in question from his house. He also denied the fact that the alleged Ganja and the samples drawn from it, were sealed in his house. He further denies the fact that he was ever told by the officer-in-charge for conducting search in his house in presence of any gazetted officer. He denies to have made any confessional statement before the police.

On the basis of the oral and documentary evidence, the trial court convicted and sentenced the appellant in the manner described hereinabove.

It is contended that only because the appellant was found present at the door of the house, it cannot be said that he was in possession of the contraband recovered from inside a room of the house.

Learned counsel appearing on behalf of the appellant submits that admittedly, as per prosecution, information regarding concealment of contraband Ganja was received by the Officer Incharge of the police station on 30.9.2004 through some confidential sources at 7.15 a.m. P.W.4 Farooque Hussain Ansari, while deposing in court, states that an entry in this regard was made in the station diary and the police party proceeded to conduct raid in the house of the appellant at 7.40 a.m. However, the station diary entry made by the officer-in-charge of the police station has not been brought on record. He further submits that the prosecution has brought on record the seizure list which has been marked as Ext.2. It contains the signature of the seizure list witnesses, namely, P.W.2 Devendra Kumar Singh and P.W.3 Baban Pandey. It also contains signature of Block Development Officer as well as signature of the appellant. The witnesses examined on behalf of the prosecution states that the seizure list was prepared on the date of occurrence itself. The self statement of the informant, which has been marked as Ext.3, is the document on the basis of which the informant himself drew the first information report. The self statement was recorded at 9.20 a.m. and the first information report was drawn on the same day at 11 a.m. Learned counsel submits that case number being Rajpur P.S. Case No. 94 of 2004 dated 30.9.2004 instituted under sections 20(b)(ii)(C), 27A and 29 of the N.D.P.S. Act finds mention at the top of the seizure list. According to him, if the seizure list was prepared at the place of occurrence itself at 8.30 a.m. the same could not have contained police case number and the offences under which the first information report was registered.

It has further been argued that the mandatory provisions of the N.D.P.S. Act were not followed while conducting the alleged search and seizure in the house of the appellant. The prosecution has failed to bring on record anything to show that P.W.4 Farooque Hussain Ansari, after recording the information in writing under Sub Section (1) of Section 42 of the N.D.P.S. Act, transmitted the same to immediate superior officer. Learned counsel also argued that the seizure list witnesses have not supported the prosecution case. The independent witnesses in their deposition state that the recovery was made from an open field and, thereafter, they were declared hostile.

It has also been argued that the so called confessional statement of the appellant recorded by the informant, which has been brought on record by the prosecution as Ext.7, was not a voluntary statement made by the appellant to a police officer. Referring to Ext. 7, it has been argued that the same was recorded at 1 p.m. by the informant of the case on 30.9.2004 in the police station. By that time, the appellant has already been taken into custody by the police and recording of the confessional statement by the officer-in-charge of the police station against the accused person was clearly violative of Article 20(3) of the Constitution of India. It has also been argued that the prosecution clearly failed to establish the fact that the alleged Ganja was recovered from the house of the appellant. On the contrary, investigating officer admits in reply to the court''s question that the house from where the alleged Ganja was recovered belonged to Jitan Sah, Bhola Sah and Ram Bilas Sah. Lastly, it is argued that the F.S.L report, which has been brought on record by the prosecution as Ext.8, shows that three packets of Tin Dibbas were sent on 13.10.2004 through special messenger, A.S.I. Sheo Bihari Singh but the same were received in the office of the Director, Forensic Science Laboratory after five days on 18.10.2004. However, F.S.L. report is dated 5.7.2007. It is contended that the A.S.I. Sheo Bihari Singh, who had carried the sealed packets of the sample, has not been examined as a witness in this case. The special messenger, admittedly, received the packets on 13.10.2004. The township of Buxar is situated at a distance of 140 Kms. by road and 99 kms. by train from Patna. It is well connected with road and railway. It is surprising that messenger took five days in transmitting the packets to the office of the Director, Forensic Science Laboratory, Patna after receiving the same. Further, the laboratory took almost three years in getting the sample examined. Learned counsel submits that there is no explanation by the prosecution for the inordinate delay in transmitting the sample of Ganja as well as in getting the same examined in the laboratory.

On the other hand, learned counsel for the State, submits that on getting confidential information the police raided the house of the appellant, seized Ganja in question, prepared the seizure list, drew sample at the spot, transmitted the same to the Forensic Science Laboratory and proved the case by bringing reliable witnesses in court in course of trial. He submits that the confessional statement of the appellant recorded by the officer-in-charge of the police station is admissible in evidence in terms of section 67 of the N.D.P.S. Act. He further submits that the prosecution has also produced the remaining seized Ganja from the place of occurrence in court in course of trial.

After hearing the parties, now the question arises as to whether the prosecution has been able to prove its case beyond reasonable doubt. I find that the provision of section 42 of the N.D.P.S. Act provides safeguard against arbitrariness and contravention thereof may cause prejudice to the person arrested. The provision cannot be ignored completely. Where the officer takes down any information in writing under sub section (1) of section 42 of the N.D.P.S. Act, he shall within 72 hours send a copy thereof to his immediate official superior. In the present case, although the informant (P.W.4) claims that he received confidential information regarding storage of Ganja in the house of the appellant on 30.9.2004 at 7.15 a.m. and entered the said information in the station diary but neither the station diary entry has been brought on record nor any evidence has been led to show that such information was ever transmitted by P.W.4 Farooque Hussain Ansari to his immediate official superior.

I further find that both the informant (P.W.4) as well as the Block Development Officer (P.W.11) state in their deposition that before effecting search in the house of the appellant, a written information was given to him in this regard. They further state that the appellant also gave his consent in writing for search to be conducted in his house. However, neither a copy of the written information given to the appellant by the informant nor the consent letter of the appellant alleged to have been given to the informant in writing has been brought on record by the prosecution in course of trial.

The next question which arises for consideration is as to whether the confessional statement of the appellant as contained in Ext.7 can be taken into evidence. Article 20(3) of the Constitution of India lays down that no person accused of any offence shall be compelled to be a witness against himself. Further section 25 of the Evidence Act, 1872, reads as under:-

No confession made to a police officer shall be proved as against a person accused of any offence.

Therefore, a confession made to a police officer cannot be used or tendered in evidence as against a person accused of any offence. Section 26 of the Evidence Act further provides that no confession made by any person whilst he is in custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

The restriction on admissibility of a confession of an accused person by sections 25 and 26 of the Evidence Act made to a police officer and not in the immediate presence of a Magistrate, is a matter of public policy designed to prevent practice to securing confessional statement of a person in police custody by means of threat, inducement, torture, coercion etc. The consistent view which has been taken with regard to confession made under the provisions of section 67 of the N.D.P.S. Act, has been that such statement may be treated as confession for the purpose of section 27 of the Evidence Act, but with caution that the court should satisfy itself that such statement had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.

In the present case apparently the confessional statement of the appellant was recorded by the officer-in-charge of the police station after his arrest as well as after registration of the first information report in the police station. Thus, there is no reason to doubt that when the confessional statement of the appellant was recorded, there was a formal accusation relating to commission of a cognizable offence for which he was already been taken into custody. Under such circumstance, he is certainly entitled to claim the benefit of guarantee against testimonial compulsion embodied in Article 20(3) of the Constitution of India as he could not have been compelled to be a witness against himself.

Now, coming to the evidence relating to the search and seizure of Ganja, in question, I find that the seizure list witnesses have clearly denied the factum of seizure from the house of the appellant. The other independent witnesses state that the seizure was made from an open field belonging to one Suresh Sah. However, the official witnesses have supported the factum of seizure of contraband from the house of the appellant. They claim that the seizure list of the articles seized was prepared at the place of occurrence itself. In the seizure list (Ext.2), the date and time of seizure is mentioned as 30.9.2004 at 8.30 a.m. Admittedly, the first information report was registered on 30.9.2004 at 11 a.m. in the police station. The prosecution fails to explain as to how the police station case number and the offence under which the case was registered finds mention at the top of the seizure list. This clearly casts a doubt on the oral testimony of the official witnesses who claim that the seizure list was prepared at the place of occurrence itself.

The next question to be considered is as to whether the house from which the prosecution alleges to have seized the contraband belonged to the appellant. The investigating officer in his deposition gives a death blow to the prosecution case. In reply to the court''s question, he states that the house from which the alleged Ganja was recovered belonged to Jitan Sah, Bhola Sah and Ram Bilash Sah. If the house itself did not belong to the appellant, he cannot be fastened with liability for the alleged recovery of Ganja.

Further P.W.4, the informant, states that it was the Chaukidar who told him that the house belonged to the appellant. The Chaukidar has not been examined in court. P.W.11, the B.D.O., states that he is not aware as to who are the other family members who were living in the house from which the alleged recovery of contraband was made. Thus, apparently there is no evidence either on the point of ownership or on the point of possession of the house from which recovery of the contraband is alleged to have been made.

I further find that the defence has rightly argued that there is absolutely no explanation for the undue delay in transmission of the so called sample drawn from the seized Ganja as well as in getting the same examined in the Forensic Science Laboratory. The sample, admittedly, remained for five days in possession of the messenger i.e. A.S.I., Sheo Bihari Singh. The said messenger has not been examined by the prosecution in course of trial. There is no explanation on behalf of the prosecution for his non-examination. His non-examination has certainly prejudiced the defence. Taking into consideration the evidence in totality as discussed, hereinabove, I find that the prosecution has not been able to prove its case beyond reasonable doubt. In the result, the appeal is allowed. The impugned judgment and order of the trial court are set aside. The appellant is directed to be released forthwith, if not required, in any other case.