Tamanna Khan and Chanda Khatoon vs The State of Bihar

I.A. Ansari, J.—These appeals have put to challenge the judgment dated 07.09.2007, passed, in G.O. Case No. 05 of 2005, by the learned 1st Additional Sessions Judge-cum-Special Judge, Darbhanga, whereby the accused-appellants, namely, Tamanna Khan, Chanda Khatoon and Zarina Khatoon, stand convicted under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act 1985 (in short ''NDPS Act'') and Section 47(c) of the Bihar Excise Act, 1915. In consequence of their conviction u/s 20 of the NDPS Act, the accused-appellant, namely, Zarina Khatoon, stands, under the order, dated 12.09.2007, sentenced to suffer rigorous imprisonment for a period of seven years and pay fine of Rs. 25,000/- (twenty five thousand) and, in default of payment of fine, undergo simple imprisonment for six months. For then conviction u/s 20 of the NDPS Act the two other accused-appellants, namely, Tamanna Khan and Chanda Khatoon, stand, under the order, dated 12.09.2007, aforementioned, sentenced to suffer rigorous imprisonment for a period of fifteen years and pay fine of Rs. 1,00,000/- (one lakh) each and, in default of payment of fine, undergo simple imprisonment for one year. However, no separate sentence was passed for the conviction of the three accused-appellants u/s 47(c) of the Bihar Excise Act 1915. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:

(i) On 06.06.2005, at 05:15 AM, PW3, Officer-in-Charge, Sadar Police Station, Darbhanga, received information from confidential source that accused Zarina Khatoon sells ganja (cannabis) from her house. This information was recorded in the station diary by Entry No. 112, dated 06.06.2005. Having organized a raiding party, consisting of PW4, Assistant Sub-Inspector of Police, PW5, PW6, PW7 and PW8, Home guard Constables, and PW9, Assistant Sub-Inspector of Police, PW3 went to the house of accused Zarina Khatoon and, having found ganja (cannabis), there, the same was weighed and seized, vide seizure memo (Exhibit-1), in presence of, amongst others, PW1 and PW2, namely, Jitu Kumar Paswan and Sitaram Sharma, respectively, who are not neighbours of Zarina Khatoon, but persons living in nearby area, by, the weight of ganja, so found and seized, being 11.5 kgs. On interrogation, accused Zarina Khatoon made a confessional statement (Exhibit 4) disclosing therein names of three other accused persons, namely. Tamanna Khan, Chanda Khatoon and Satto Ram, as persons involved in the purchase and sale of ganja (cannabis).

(ii) Based on the information, so derived, PW4, Assistant Sub-Inspector of Police, posted at Sadar Police Station, Darbhanga, raided, with the help of his raiding party, the house of accused Tamanna Khan and his wife, accused Chanda Khatoon, and recovered and seized, in presence of witnesses, 36 kgs. of ganja by seizure memo (Exhibit-2). Even the house of accused Satto Ram was raided and from his house, too, ganja, weighing 1 kg., was recovered and seized. The seized materials were brought, along with Zarina Khatoon and Tamanna Khan, to Sadar Police Station, Darbhanga, because accused C hand a Khatoon had fled away on witnessing the police arriving at her house and accused Satto Ram had not been found in his house.

(iii) A fardbayan, in writing, was lodged by the Officer-in-Charge, Sadar Police Station, Darbhanga and treating the said fardbayan as First Information Report, Sadar P.S. Case No. 134 of 2005, under Sections 20 and 22 of the NDPS Act read with Section 47(c) of Bihar Excise Act, 1915, was registered.

(iv) During investigation, seized ganja was sealed and two samples, drawn therefrom, were sent to Forensic Science Laboratory (in short, FSL''), which opined that the samples were of ganja (cannabis).

(v) On completion of investigation, a charge sheet was laid, under Sections 20 and 23 of the NDPS Act read with Section 47(c) of Bihar Excise Act, 1915, against accused Zarina Khatoon, Tamanna Khan, Chanda Khatoon and Satto Ram.

At the trial, when charges, under Sections 20 and 23, of the NDPS Act read with Section 47(c) of Bihar Excise Act 1915, were framed, all the accused pleaded not guilty thereto.

In support of their case, prosecution examined altogether ten witnesses. All the accused were, then, examined u/s 313(1)(b) of the Code of Criminal Procedure and, in their examinations aforementioned, all the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial.

Having found accused Zarina Khatoon, Tamanna Khan and C hand a Khatoon guilty of offences under Sections 20 of the NDPS Act and Section 47(c) of Bihar Excise Act, 1915, all the three accused persons, namely, Zarina Khatoon, Tamanna Khan and Chanda Khatoon were convicted accordingly and sentences were passed against them as mentioned hereinbefore.

As the learned Trial Court found accused Satto Ram not guilty of the offences charged with, he was accordingly acquitted.

Aggrieved by then conviction and the sentences, which have been passed against them, all the three convicted persons have preferred appeals. While the appeal, which has been preferred by two of the convicts, namely, Tamanna Khan and Chanda Khatoon, has given rise to Criminal Appeal (DB) No. 1269 of 2007, the appeal, which has been preferred by the co-convict; namely, Zarina Khatoon, has come to be registered as Criminal Appeal (DB) No. 1337 of 2007.

We have heard Mr. Ajay Kumar Thakur, learned Counsel for the accused-appellants, and Mr. Ashwini Kumar Singh, learned Additional Public Prosecutor, for the State.

While considering the present appeals, what may be noted, at the very outset, is that the prosecution case suffers from one unavoidably noticeable feature, this noticeable feature being that PW1 and PW2, who are claimed to have been associated with the raid, which had been conducted at the house of the three appellants, and, in whose presence, ganja was allegedly recovered and seized, have turned hostile and have not supported the case of the prosecution inasmuch as their evidence is, in substance, to the effect that in their presence, neither PW3 had conducted any raid at the house of any of the accused-appellants nor was any ganja recovered and/or seized in their presence. Though, both, PW1 and PW2, had denied that any seizure list was prepared in then presence and/or signed by them, except the assertion of PW9, that PW1 and PW2 had witnessed the recovery and seizure of ganja and had signed the seizure memoranda, namely. Exhibits 1 and 2, there is really no corroborative evidence to support the evidence of PW3. Even the seizure memoranda were not sent to finger print expert to obtain opinion as to whether Exhibits 1 and 2 bore the thumb impressions of PW1 and PW2 or not; more importantly, not even an iota of material could be elicited from the cross-examination of PW1 and PW2 to show that their evidence was untrue or false. This apart; nothing could be brought out from their cross-examinations, which could support the case of the prosecution.

Though the so-called prosecution witnesses namely, PW1 and PW2, whom the prosecution sought to project as independent witnesses, who had been associated with the raid, recovery and seizure of ganja, have not supported the case of the prosecution and this is, undoubtedly, a serious infirmity in the case of the prosecution, it would not, as a corollary, mean that the case of the prosecution is false and the conviction of the accused-appellants have to be, therefore, set aside on this ground alone.

Consequently, the remaining evidence on record needs to be carefully and cautiously scrutinized in order to determine if, in the light of the fact that the so-called independent witnesses have not supported the case of the prosecution, whether the case of the prosecution could still have been held to have been proved beyond all reasonable doubt in the sense that ganja, as was alleged by PW3 and PW9, had been recovered from the conscious and exclusive possession of that accused, who has been held guilty of the offences charged with.

While considering the above aspect of the case, it is equally important to note that the two so-called independent witnesses, namely, PW1 and PW2 have also not given any evidence indicating that recovered and seized ganja was sealed in their presence. Surprisingly, however, it was not even suggested to these two independent witnesses by the prosecution that ganja, which had been allegedly seized on being recovered from the houses of the accused-appellants, were sealed at the place of seizure; whereas seized narcotic drug or psychotropic substance is required to be sealed at the earliest, preferably, at the very place, where the recovery and seizure are made.

In the present case, the above aspect of the case is more significant, because of the fact that the alleged recovery of ganja had taken place not accidentally during the course of search of vehicles, but on specific information claimed to have been received at the said police station.

It was, therefore, incumbent, on the part of the Officers, who have claimed to have recovered and seized ganja, to ensure that the ganja, so recovered, were sealed at their respective places of recovery and seizure. In this regard, apart from the fact that it was not even suggested to PW1 and PW2 that the seized ganja were sealed at their respective places of recovery; rather, it is admitted evidence on record, as surfaced from the cross-examination of PW3, that seized ganja, in question, were sealed at the Office of the District Judge concerned.

Thus, the requirement of sealing the seized narcotic drug has not merely been ignored, but flouted with no explanation having been offered therefor by the prosecution nor is there any explanation discernible, in this regard, from the evidence on record.

One cannot ignore the fact that a seizure list/seizure memo is required to be signed by the person(s), who witnesses or witness, as the case may be, the seizure and since mere seizure is not adequate to fasten anyone with the knowledge of recovery, the witness produced, in this regard, must also be the witness to recovery. Logically extended, it would mean that a person, who was a witness to the recovery and seizure, has to be a person, who had witnessed the factum of sealing of seized materials. Surprisingly enough, however, in the case at hand, it is not even suggested, if we may repeat, to PW1 and PW2 by the prosecution, that seized materials were sealed in then presence.

In the light of the above discussion of the evidence on record, let us, now, come to the evidence of PW3, who was, admittedly, at the relevant point of time, the Officer-in-charge of Darbhanga Sadar Police Station. His evidence is that on 06.06.2005, at 05:15 AM, he received an information that Zarina Khatoon, a resident of Bheluchak, sells ganja and, having made Entry No. 112, dated 06.06.2005, in this regard, at the station diary, he, accompanied by PW4, Assistant Sub-Inspector of Police, Circle Guards, PW9, Sub-Inspector of Police, and Home guard Constables, went to the house of accused Zarina Khatoon and searched her house, at about 4:30 hours, in presence of two independent witnesses, namely, PW1 and PW2 (who have already become hostile and have not supported the prosecution''s case). It is the evidence of PW3 that having found ganja, kept, at the house of accused, Zarina Khatoon, inside packets of polythene, weighing about 11.5 kgs., the same was seized and a seizure memo was prepared, wherein the thumb impressions of the witnesses were allegedly taken The seizure memo has been proved as Exhibit-1.

It is also the evidence of PW3 that a confessional statement of Zarina Khatoon was recorded and, on the basis of the confession so made by Zarina Khatoon, raid was conducted at the house of accused Tamanna and accused Chanda, who are married couple, and having recovered, in the presence of independent witnesses (i.e. PW1 and PW2), 36 kgs. of ganja, the same was seized and seizure memo (Exhibit-2) was prepared and signed by witnesses and, then, based on the said confessional statement of accused Zarina Khatoon, the house of accused Satto Ram, too, was raided and having recovered 1 kg. of ganja there, a seizure memo was prepared (Exhibit-3) and, then, all documents were handed over to PW9, who was the Investigating Officer of this case.

What is extremely important to note is that PW3 has conceded, in his cross-examination, that at the house of Zarina Khatoon, he found her father and small children. Significantly enough, it is the evidence of PW3 that he did not know Zarina Khatoon from before and the people of locality had identified Zarina Khatoon, whose house is a double-storied house with two rooms at the ground floor and two rooms on the first floor and while the two rooms, on the ground floor, were completely constructed, the construction of the two rooms, at first floor, was not complete.

When the house, in question, was occupied by two adult persons, namely, accused Zarina Khatoon and her fattier, mere recovery of ganja could not have been attributed to accused Zarina Khatoon alone, and there ought to have been further evidence, direct or circumstantial, to show that it was accused Zarina Khatoon, who had been in exclusive and conscious possession of ganja, which had been allegedly seized.

What is also extremely important to note, as has already been indicated above, is that it is the admitted evidence of PW3 that the seized materials were not sealed at the place of recovery and/or seizure; rather, the seized materials were brought to the police station; more significantly, it is the evidence of PW3 that the seized materials were sealed at the Office of the District Judge.

Thus, neither at the place of recovery nor even at the said police station, the alleged seized ganja was sealed.

When the punishment imposed on a person found guilty of an offence under the NDPS Act, is severe, every safely measure, which the NDPS Act prescribes, has to be scrupulously followed, particularly, the act of sealing of a recovered and seized material. There is absolutely no evidence to show as to how the recovered materials had been kept at the police station and there is also no evidence to show that what had been allegedly seized from the house of the three appellants were the ones, which had been sealed in the Office of the District Judge. We have also not been able to appreciate as to why the District Judge had allowed the sealing of any article, at his office, when the article had not been recovered and seized at his office. In fact; the seized material was not even produced, in the Court; at the time of evidence and has not been proved.

Clearly, therefore, the recovery and seizure, in the light of discussions made above, can be said to have been convincingly proved, more particularly, when we notice that PW3 has deposed that he does not know how he got information as regards the fact that accused Zarina had been selling ganja. No evidence has been given by PW3 to prove that the information, which he had received with regard to the fact that Zarina had been selling ganja, was reported by him to his immediate superior in terms of the provisions of Section 57 of the NDPS Act.

Though PW3 has deposed that when they reached the house of accused Tamanna, they saw his wife fleeing away, and they could not apprehend her, because there was no lady constable with them, it is noteworthy that PW3, at the same time, concedes that the police party had raided the house of Zarina Khatoon without any lady constable. If the male constable could have apprehended and arrested Zarina Khatoon, there was no reason as to why a male constable or even PW3 could not have chased, apprehended and arrested accused Chanda Khatoon.

Situated thus, it is clear that the evidence of PW3 is not at all convincingly, credible and trustworthy and, relying upon his evidence, no conclusion could have been confidently arrived at as regards the feet that ganja was seized from the conscious and exclusive possession of any of the three accused-appellants.

Coming to the evidence of PW4, who is an Assistant Sub-Inspector of Police, we notice that his evidence is that accompanied by members of the armed-forces, they had, at quarter past five in the morning, gone to the house of Zarina Khatoon and recovered 11.5 kgs. of ganja from the ground floor of her house, which was seized, Zarina''s confessional statement was recorded and, based on the said confession, the house of accused Tamanna was raided and 36 kgs. of ganja, having been found there, seized and, then, they went to the house of accused Satto Ram and recovered 1 kg. of ganja and seized the same too.

interestingly enough, PW4 does not claim about the presence of PW1 and PW2 at the time of alleged recovery and seizure of ganja from the house of any of the accused-appellants nor has he given any evidence to indicate that any seizure memo was prepared at the house of accused-appellant; Zarina, or at the house of other two accused-appellants, namely, Tamanna and Chanda.

The evidence, thus, given by PW4, goes to support the evidence of PW1 and PW2 and thereby belies the assertion, of PW3 that PW1 and PW2 were associated as independent witnesses with the recovery and seizure of ganja at the house of not only accused Zarina, but also at the house of accused Tamanna.

It is also interesting to note that while PW3 claimed that on raiding the house of accused Tamanna, he found his wife, Chanda Khatoon, fleeing away, PW4, belying the said assertion of PW3, has given evidence to the effect that when he raided the house of accused Tamanna, no member of the family was present there. Completely rendering the evidence of PW3 false and untrue, PW4 concedes, in his cross-examination, that they had conducted the raid, at the house of the accused-appellant Tamanna, in the absence of accused-appellant, Tamanna, and that the ganja recovered had not been sealed at the place of recovery.

So far as PW5, a Home guard personnel, is concerned, his (PW5) evidence is that he had accompanied PW3 to the house of accused Zarina Khatoon. His evidence, however, is rendered wholly without any value, when his clear evidence is that at the time of the raid, recovery and seizure from the house of accused-appellant, Zarina Khatoon, he (PW5) was present at the police station. Though this witness was declared hostile, nothing could be elicited from his cross-examination, too, to show that this witness (PW5) was present at the place of alleged recovery and seizure.

As regards the evidence of PW6, who, too, is a Home guard personnel, it is noteworthy that according to his evidence, he had not even entered into the house of accused Zarina. His evidence cannot; therefore, prove that any recovery of ganja was made at the house of the accused-appellant, Zarina. No different is the nature of evidence of PW6, who was a Circle Guard, inasmuch as he has clearly deposed that he was asked to remain inside the vehicle and it was PW3, who had entered into the house of accused-appellants along with some other constables. The evidence of PW6, too, does not, therefore, improve the case of the prosecution.

Even PW8, who is a Home guard personnel, has given evidence to the effect that he remained outside the house of accused Zarina, who was brought out from the house by the raiding party, headed by PW3, with something contained in a gunny bag; whereas the evidence of PW5 is to the effect that ganja was brought in two gallons from the house of accused Zarina.

There are, thus, inherent contradictions between the evidence of PW5 and PW8.

When we turn to the evidence of PW9, we notice that according to his evidence, he was the one, who was the Officer-in-Charge and he, along with other police personnel, went and conducted raid at the house of accused Zarina and recovered 8.5 kgs. of ganja from the house of accused Zarina; whereas PW3 claims that he was the Officer-in-Charge and he had conducted a raid at the house of accused Zarina and recovered 11.5 kgs. of ganja. Moreover, even PW9 does not claim, in his evidence, that the so-called independent witnesses, PW1 and PW2, had signed the seizure memo.

Coupled with the above, it needs to be noted, as has been correctly pointed out, on behalf of the accused-appellants, that the alleged date of recovery and seizure is 06.06.2005, and the evidence of PW3, coupled with the evidence of PW9 (Investigating Officer), shows that the ganja seized, as a whole from the three houses, namely, the houses of Zarina Khatoon, Tamanna Khan and Satto Ram, were all kept in one gunny bag and two samples were drawn from the gunny bag and, then, sent to the FSL. The report (Exhibit 8) of the FSL also shows that they had received two samples, which were found to be of ganja.

In the face of the evidence indicated above, it is impossible to hold as to which material seized was found by the FSL to be ganja.

Mr. Ajay Kumar Thakur, learned Counsel, appearing on behalf of the accused-appellants, has considerable force when he, relying upon the decision in Ouseph alias Thankachan Vs. State of Kerala , submits that when the allegedly seized ganja was not sealed at the place of recovery and seizure and there is no explanation for not sealing the alleged seized ganja at their respective places of seizure, the learned trial Court ought not to have held that the prosecution had not succeeded in proving that ganja was recovered from the possession of any of the accused-appellants. It has been pointed out; in Ouseph (supra), that the requirement of Section 55 of the NDPS Act may not be mandatory, yet the fact remains that keeping a contraband article, in unsealed condition, for a long period creates doubt and the possibility of seized material having been tempered cannot be ruled out.

What crystallizes from the above discussion is that the prosecution had failed to adduce convincing and reliable evidence on record to show that any of the three accused-appellants have been found in conscious and exclusive possession of ganja.

Situated thus, it becomes clear that in the circumstances, which, we have discussed here, the accused-appellants ought not to have been convicted.

In the result, and for the reasons discussed above, this appeal is allowed. The conviction of the accused-appellants and the sentence passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they have been convicted of, and they are acquitted of the same.

Let the accused-appellants be released from custody, forthwith, unless they are required to be detained in connection with any other case. Let the Lower Court records be sent back to the learned Court below with a copy of this judgment and order.