Timal Raut vs The State of Bihar

S.N. Jha and B.N.P. Singh, JJ.—The sole Appellant of this appeal has been convicted (sic)er Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act (sic) sentenced to rigorous imprisonment twenty years and fine of Rs. One lac.

The case of the prosecution is that 6.2.96 at 6.30 a.m. Anil Kumar of village (sic)akhap Nayatola within Bettiah Muffasil of West Champaran district saw the Appellant carrying ''Charas'' in two bags. He the help of co-villagers tried to appreciated him. The Appellant, however, fled and himself in a sugarcane field. He was by apprehended and brought to the be of Vijay Kumar. On information S.I. (sic)adeo Sah of Bettiah Muffasil P.S. came the village and recorded the statement Anil Kumar to the above effect at 10 a.m. took custody of the Appellant as well as the packets said to have been recovered from him. The pockets-five each in two bags-were opened by S.I. Mahadeo Sah in presence of the villagers. They were weighed and seizure memo was prepared. He recorded the statements of the witnesses, sent the articles to the Forensic Science Laboratory and on receipt of the report, observing other formalities, submitted chargesheet against the Appellant thus putting him on trial.

At the trial the prosecution examined five witnesses. They are P.W. 1 Prakash Kumar Verma, P.W. 2 Anil Kumar, the in formant, P.W. 3 Satish Kumar, P.W. 4 Bhola Prasad and P.W. 5 Kalimul Rahman. Out of them P.Ws. 1 to 4 were examined on the point of occurrence, while P.W. 5 was ex-amined as a formal witness to prove the seizure list. The Appellant did not examine any witness in defence. At the end of the trial the trial court convicted the Appellant and sentenced him in the manner stated at the outset.

Shri Umesh Chandra Verma, learned Counsel for the Appellant, submit-ted that the Appellant was falsely impli-cated in the case on account of land dis-pute with Anil Kumar and others. There is no conclusive evidence that the article which was allegedly seized from the Appellant was sent to the Forensic Science Labora-tory and that what was subjected to chemi-cal analysis was the article allegedly seized from the Appellant. Counsel pointed out that the Investigating Officer was now ex-amined and, therefore, it is not known as to how the article seized by the police was dealt with after seizure.

Having gone through the evidence of the witnesses we find substance in the submission of the counsel for the Appellant.

P.W. 1 in his evidence stated that he heard the shout and when reached the place he found that the Appellant was be-ing chased by the villagers. After the appel-lant was apprehended, he was subjected to search. He was carrying two plastic bags from which ''rod'' like articles were recovered which was Charas. The Charas was weighed to be 9 kgs. It is relevant to mention that this witness was not sub-jected to any cross-examination as the Appellant was not represented by any law-yer. From the ordersheet of the trial court it appears that on his request Shri Gorakh Prasad was appointed by the court to de-fend him. The witnesses examined thereaf-ter were cross-examined on behalf of the Appellant.

P.W. 2 gave a similar version about the manner in which the Appellant was apprehended from the sugar-cane field. On the point of recovery he stated that the bags carried by the Appellant contained 5 plastic packets each. The bags were not opened until arrival of the police. It smelt of Charas. After the police arrived the packets were opened by the SI who confirmed that the article was Charas. It weighed 9 kgs. In para 6 he stated that Charas was taken away by the Officer Incharge. In para 13 he clarified that Charas was taken away in bags in the same condition.

From the evidence of P.W. 3 it appears that the police party arrived at the place of occurrence after two and a half hours. Thereafter the packets were opened. They contained Charas. P.W. 4 in his evi-dence gave a somewhat similar evidence except that according to him the bags were not opened and they were handed over to the Officer Incharge. The Officer Incharge declared after looking at the bags that the article was Charas. P.W. 5, as mentioned above, was examined as a formal witness to prove the seizure list.

It may be mentioned here that the report of the Forensic Science Laboratory dated 15.10.96, which is the sheet anchor of the prosecution case, was marked Ext. (sic) without formal proof even though the Appellant objected to its submission. But (sic) do not wish to go into this aspect, for, this appeal is fit to be allowed on a short ground.

There is no evidence on record to suggest as to what happened to the article which was allegedly recovered from the Appellant and seized by the police on 6.2.96 Some article, no doubt, was sent to the Forensic Science Laboratory on or about 23.3.96 which on chemical examination was found to be Charas, but there is no evdence that the article which was found (sic) be Charas was the same as was recovered from the police on 6.2.96. None of the prosecution witnesses spoke about sealln(sic) of the bags by the police officer on 6.2.96 Their evidence rather suggests that the packets were opened, portions thereof were examined by the police officer who do clared it to be Charas. It was necessary that the police should have sealed this bags in presence of the witnesses and (sic) cannot be said with confidence that the article which was sent to the Forens(sic) Science Laboratory was the one alleged recovered from the Appellant. If the Inve(sic) tigating Officer had been examined in this case, some light would have been thro(sic) on these aspects. In the absence of his evidence we are left guessing as to how the article recovered from the police w(sic) dealt. The seizure was effected on 6.2.96 but the article was sent to the Foren(sic) Science Laboratory on or about 23.3.(sic) i.e. after six weeks. Apparently, it must have been kept in the Malkhana of (sic) police station. The possibility of the (sic) tainer being mixed up with other sim(sic) looking article/container cannot be ru(sic) out. The evidence on the point could h(sic) salvaged the prosecution case. The (sic) sence of the same would enure to (sic) (sic)antage of the Appellant.

The picture that we get from the (sic)dence on record is that the police took (sic)ay unsealed open bags of some article (sic)gedly recovered from the evidence but is no conclusive evidence that the me article was sent to the Forensic Sci(sic) Laboratory for chemical analysis. The (sic)emical analysis report (Ext. 4) therefore cannot be conclusive of the fact that it es to the same very article. Having (sic)ard to the nature of the case the Appellant cannot be convicted on the basis of evidence to the effect that some Charas looking article was recovered from his per(sic)n In the absence of reliable evidence that the article was a contraband, the condission is irresistible that the Appellant''s (sic)nviction cannot be sustained.

In the result, the appeal is al(sic)ved, the conviction and sentence awarded the Appellant are set aside and he is (sic)quitted of the charge. He is in custody. (sic) is directed to be released forthwith, if (sic) wanted in any other case.