Judgment:
1. Sole appellant, Ashok Sah has been found guilty for an offence punishable under Sections 22 (C) of the NDPS Act vide judgment dated 30.03.2012 and sentenced to undergo RI for 10 years as well as also slapped with fine appertaining to Rs. 1 Lac in default thereof, to undergo SI for two years additionally vide order dated 31.03.2012 by the 2nd Additional Sessions Judge-cum-Special Judge, NDPS Act, West Champaran at Bettiah in Shikarpur P.S. Case No. 281/2006, G.R. No.2757/2006, Trial No. 08/2007 has challenged the same by preferring instant appeal.
2. PW-8, Satyendra Prasad Singh, Officer-in-charge of Shikarpur P.S. recorded his own fard-e-beyan on 20.06.2006 at about 3:00 p.m. at Shikarpur disclosing therein that on the same day at about 10:00 a.m., he received a confidential information with regard to transportation of Ganja over Swaraj Tractor and trailer having no registration number scribed over the Tractor or trailer towards Mathura Chowk and on account thereof, a raiding party was constituted and reached at Pirahi Road crossing Mathura chowk. At about 11:30 a.m., they arrived at Khairwa Chowk and found one tractor coming from Pirari Road having no registration number over which he signaled to stop. Seeing the police personnel, 4-5 persons who were sitting jumped and ran away. Putting the tractor and driver under custody of both the Chaukidaars, they chased but could not succeed to apprehend. Then thereafter, he took the tractor and trailer to the P.S. The Dy. S.P. was also informed and after arrival of the Dy.S.P. as well as in presence of two seizure list witnesses who along with others have assembled at the P.S. got the sheet of trailer opened whereupon so many bundles of Ganja were found. On counting, it was 57 in number. On being weighed, it happens to be 5 Quintal 10 Kilograms. The whole event was videographed. The driver was interrogated but he could not explain the same nor he had produced the relevant document concerning Ganja. The driver further disclosed that the persons who managed to escape were smugglers who were engaged in carrying the aforesaid Ganja. Seizure list was accordingly prepared.
3. After having registration of Shikarpur P.S. Case No. 281/2006 under Sections 20 and 22 of the NDPS Act, the investigation commenced and concluded by way of submission of charge-sheet against the appellant keeping the investigation pending against J.N. Prasad as well as Awadh Kishore Prasad and on account thereof, the appellant was put on trial and ultimately meeting with conviction and sentence, the subject matter of instant appeal.
4. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C is of complete denial of occurrence. In an alternative shown his status as a bona fide passenger who took lift during midst of way having no knowledge regarding presence of Ganja concealed in trailer and on account thereof, shown his ignorance.
5. During course of trial prosecution had examined nine PWs out of whom PW-1 is Sunil Kumar Mishra, PW-2 is Ishteyaq Khan, both are seizure list witnesses although, admitted their presence over seizure list but they did not support recovery and on account thereof, were declared hostile. PW-3 is, Dinesh Prasad Singh, ASI, one of the members of raiding party while PW-4 is Gopal Saran Singh part I.O., PW-5 is Dina Nath Sah, Videographer, however his evidence has got no relevance in the background of the fact that CD was not at all exhibited at his end either under category of primary evidence or secondary evidence. PW-6 is Bhuneshwar Singh, the first I.O., PW-7 is Sheonandan Ram, a Sepoy, PW-8 is, Satendra Prasad Singh, informant and PW-9 is Laxman Hajra, Home Guard Constable as well as was a member of raiding party. Also exhibited, Ext-1 series, signature of seizure list witness including that of Dy.S.P as well as informant himself, Ext-2 series, self statement of informant, PW-8 as well as his signature, Ext-3 seizure list, Ext-4, the FSL report. However, neither any DW nor any document has been exhibited on behalf of appellant.
6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of the appellant that in spite of perceiving flaw in the prosecution case by the learned trial court, the same has been overlooked on one pretext or other contrary to the mandate of law on account thereof, the finding of guilt and sentence is not at all found proper, legal as well as justifiable.
7. In order to buttress his submission, the learned counsel for the appellant submitted that there happens to be specific disclosure that though episode was videographed and for that PW-5, Dina Nath Sah was examined but surprisingly, its CD has not been exhibited so that connectivity of appellant with offence so alleged would have been exposed. Moreover, from the evidence of I.O. PW-4 as well as PW-6, it is evident that no such kind of cassette was ever in their possession. Then it has been submitted that according to self statement of informant PW-8 while chasing the persons who after jumping from trailer ran away, appellant along with tractor was kept under surveillance of two Chaukidars, however, during course of evidence, they did not support the same. Not only this, neither in the self statement, the names of those Chaukidars have been disclosed nor they were examined during course of trial so that status of appellant as a driver of the aforesaid tractor would have properly been explicated. Not only this, none of the witness had disclosed regarding possession of key as well as handing over the key, the seizure list has been prepared with regard thereto identifying the appellant to be driver of the vehicle in question.
8. Now coming to the remaining evidence, it has been submitted that PWs-5 and 6 had shown their status only to the extent of Investigating Officers. PWs-7 and 9 have narrated the prosecution case in different manner than presented by the PW-8 which got supported by PW-3 only.
9. It has also been submitted that from the record, it transpires that neither samples were prepared in accordance with law nor seizure list was, and on account thereof, the conviction and sentence recorded by the learned trial court is fit to be set aside.
10. On the other hand learned APP while refuting the submission raised on behalf of appellant has submitted that seizure of tractor and trailer is found conclusively proved. Recovery of Ganja from the secret chamber of trailer weighing 510 K.G. is found proved in likewise manner. The vehicle was being plied without having registration number by the appellant at the time of search and seizure that shows conscious possession of the appellant with regard to narcotic substance which, during course of examination by FSL (Ext-4) found to be Ganja. Therefore, the finding recorded by the learned lower court regarding guilt followed with sentence is based upon cogent as well as conclusive material having been produced by the prosecution during course of trial.
11. While dealing with the cases falling under NDPS Act, on account of presumption followed with burden put over accused as well as taking into account severity of the punishment, times without number, the Honble Apex Court has recorded caution that during course of investigation as well as trial, prosecution should be attentive towards compliance with mandatory provision of the law so prescribed under Chapter-V of the NDPS Act. Certain provisions are there which the prosecution is expected to follow up during course of investigation and in likewise manner also during course of trial.
12. So far fact of the present case is concerned, it is evident that in order to prove its case the prosecution had examined altogether nine PWs who during course of evidence had categorically stated regarding seizure of tractor and trailer as well as recovery of 510 KG of Ganja from the secret chamber of trailer. The aforesaid theme has to be looked into inconsonance with the nature of evidence so adduced. PW-1 Sunil Kumar Mishra and PW-2, Ishteyaq Khan whose presence being as seizure list witnesses had simply shown their presence controverting the recovery and on account thereof, both the witnesses were declared hostile.
13. PW-3, Dinesh Prasad Singh, one of the members of raiding party, had categorically stated regarding search and seizure but as is evident from para-6 of his examination-in-chief, he failed to identify the accused in the dock. Not only this, his evidence is also found relevant on another aspect while going through para-16 whereunder he had categorically stated that Ganja was kept in Maalkhana without seal. He had further stated that from two packets a little quantity of samples were taken out which was sealed but his signature was wanting.
14. PW-4 is Gopal Saran Singh who happens to be part Investigating Officer on account of taking charge of the case on 05.12.2006, that means to say, approximately, after two months and then thereafter, he had prayed for getting the samples tested by FSL. In para-7 of his cross-examination, he had admitted that Ganja was sent on 11.01.2007 while the date of occurrence happens to be that of 20.10.2006. However, there is no explanation at his end with regard to delay as well as he had not divulged the fact with regard to sealing the samples.
15. PW-5 is Dina Nath Sah, a Videographer whose evidence has got no relevancy for want of production of primary evidence relating to videography.
16. PW-6, Bhuneshwar Singh happens to be the first Investigating Officer who was entrusted with the investigation on 20.10.2006 itself. He had inspected both the place of occurrences, took statement of the witnesses, transmitted the accused to judicial custody and then, on account of transfer, he handed over charge. In para-8 of his cross-examination, he had stated that Ganja was seized. He had not sealed the Ganja. Informant had handed over Ganja in sealed condition. There was absence of signature of accused. In para-9 he had stated that he had not affixed the case number thereupon. He is unable to disclose as to who had sealed the Ganja and further by whose seal. In para-10, he had stated that he had not drawn sample.
17. PW-7 is a Sepoy who was one of the members of raiding party. During examination-in-chief he had supported the case. However, during cross-examination at para-10, he had stated that no document was prepared in his presence nor the seized Ganja was sealed in his presence.
18. PW-8 is the informant who had reiterated the self statement affirming that on the confidential information, he intercepted tractor and trailer and during course thereof, other persons managed to escape while driver was apprehended. Subsequently, from the secret chamber of trailer 510 KG of Ganja was recovered for which seizure list was prepared in presence of Dy. S.P. who was present as being informed. During cross-examination at para-21 he had admitted that he had not sealed each bundle. There were 57 bundles which were not sealed in his presence. Ganja was kept at Maalkhana. He had not put case number over Ganja. He had not taken signature of accused over all the 57 bundles of Ganja. He had not taken out samples therefrom.
19. PW-9, Laxman Hajra is other member of the raiding party being a Home Guard Constable. He had disclosed that he had not gone to conduct the raid. Accused was brought to the P.S. along with Ganja. During cross-examination, nothing substantial has been taken up.
20. After analyzing the evidence as referred above, it is evident that prosecution witnesses are not consistent over the manner of sampling. They are also not consistent whether all the 57 packets of Ganja were sealed or not. During course of trial, prosecution had not produced the material exhibit not any of the prosecution witness including PW-4 and PW-6, the Investigating Officer, that Ganja being a hazardous substance was subject to destruction in terms of Section 52(A) of the NDPS Act and during course thereof in terms of Subsection-2 of Section 52(A) of the NDPS Act sample was prepared.
21. Sampling was not made in presence of Magistrate and those samples were never brought before the trial court. Seized Ganja was also not produced. In the case of Vijay Jain v. State of Madhya Pradesh as reported in (2013) 14 SCC 527, the Honble Apex Court had occasion to see the impact of non production of material exhibit during course of trial and has dealt with in following way:- 9. Para 96 of the judgment of this Court in Noor Aga case (2008) 16 SCC 417 on which the learned counsel for the State very strongly relies is quoted hereinbelow: (SCC p. 464)
œ96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act.?
Thus in para 96 of the judgment in Noor Aga case (2008) 16 SCC 417 this Court has held that the prosecution must in any case produce the samples even where the bulk quantity is said to have been destroyed. The observations of this Court in the aforesaid paragraph of the judgment do not say anything about the consequence of non-production of the contraband goods before the court in a prosecution under the NDPS Act.
10. On the other hand, on a reading of this Courts judgment in Jitendra case (2004)10 SCC 562), we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok (2011) 5 SCC 123 this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.
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12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable.?
22. Accordingly, the judgment of conviction and sentence recorded by the learned trial court is set aside. Appeal is allowed.
23. The appellant is under custody, he is directed to be released forthwith if not wanted in any other case.