Judgment:
Chandramauli Kr. Prasad, J.
1. Both the appellants, being aggrieved by the judgment dated 6th of October, 2004 passed by the 5th Additional Sessions, West Champaran, Bettiah in Trial No. 06 of 2001 holding them guilty of offence under Section 23 of the Narcotic Drugs and Psytchotropic Substances Act, 1985 and sentencing them to undergo rigorous imprisonment for twenty years each, have preferred this appeal.
2. According to the prosecution, on the basis of an Intelligence message Ambassador Car bearing registration No. U.M.Y-2527 having plate of 'Bharat Sarkar' affixed in its front portion, was intercepted by the Valmikinagar Custom Staff at Valmiki Nagar Custom Check Post on 11th January, 2001 at 6 A.M. On interception two persons, namely, Manoj Kumar Tiwari and Lala Tiwari alias Surya Prakash Tiwari, appellants herein were found travelling in the car. On inquiry Manoj Kumar Tiwari disclosed that he is the driver of the Car who had gone alongwith the other accused to drop the officials of the National Thermal Power Corporation to Kathmandu for official work after taking Bhansar (entry tax) paper and Nepali number plate. According to Manoj Kumar Tiwari his sister's marriage ceremony was scheduled to be held on 20th January, 2001 and to invite his friend who lives at Bagaha both of them had gone towards the Valmikinagar Border.
3. However on search by the Custom officials, in the three secret chambers made in the Car, Charas of Nepali origin wrapped in transparent adhesive tape were found and in presence of the two independent witnesses as also the two appellants, 110 Kilogram of Nepali Charas kept in 20 packets were seized. The Custom officials took out four samples of approximately 25-25 gram each of the contraband recovered and kept that in four different envelopes and sealed the same which contained the signatures of both the appellants, the witnesses and the Seizing Officer. Rest of the Charas, according to the prosecution was kept in two big jute bags and sealed in presence of the witnesses, the appellants and the staff of the valmikinager.
4. According to the prosecution, both the appellants in their voluntarily statement recorded on 11th of January, 2001 accepted their guilt. The Chemical Examiner, Chemical Laboratory, Custom House, Calcutta examined the sample and found the same responding to the test for reginous extract from plant Canva and accordingly opined that it is Charas/Hashish.
5. Accordingly, B.K. Srivastava, Inspector, Preventive Customs Unit, Valmikinagar (P.W.2) laid complaint and both the appellants were produced before the Court on 12th of January, 2001 and remanded to judicial custody. On the basis of the complaint cognizance was taken and ultimately appellants were put on trial.
6. Before charge, the prosecution examined five witnesses, namely, P.W.1 Bhola Nath Upadhyay, P.W.2 Basant Kumar Srivastava, P.W.3 Nirmal Kumar Upadhyay, P.W.4 Naresh Paswan and P.W.5 Ramesh Prasad. The evidence laid before the charge, in the opinion of the learned Judge, constituted offence under Section 23 of the Narcotic Drugs and Psychotropic Substances Act and accordingly, charge was framed against the appellants under the aforesaid penal provision to which they pleaded not guilty and, as such, evidence after charge followed and further two witnesses, namely, P.W.6 Harish Chandra and P.W.7 Rajvir Singh were examined.
7. In order to bring home the charge beside the complaint (Ext.1) signatures of the appellants and witness Mahesh Prasad Gupta appearing In the seizure memo and detention memo (Ext.2), Panchnama (Ext.3), memo of arrest (Ext.4 and 4/1), voluntary statements of the appellants confessing their guilt (Ext.5), test report (Ext.7) were also placed on record.
8. The defence of the appellants is denial simplicitor and from the trend of the cross examination their defence seem to be that they had quarrel with the Custom Officials and, as such, they have been falsely implicated in the case.
9. From the evidence of P.W.2 Basant Kumar Srivastava and P.W.1 Bhola Nath Upadhyay, P.w.3 Nirmal Kumar Upadhyay, P.W.4 Naresh Paswan and P.W.5 Ramesh Prasad who happen to the officials of the Custom Department vehicle bearing registration No. U.M.Y- 2527 while coming from Nepal was intercepted at the Custom Check Post of Valmikinagar and the two appellants who were occupying the said Car were detained. According to their evidence appellant Manoj Kumar Tiwari was driving the car and after the arrival of P.W.2 Basant Kumar Srivastava and Harish Chandra P.W.6, the Inspector of Customs, search was made as they got suspicion on account of the appellants' avoiding to answer the questions. According to their evidence the Car was searched in presence of the two witnesses Mahesh Prasad Gupta and Bihari Sah (not examined) and from the three secret Chambers in the Car 220 packets of Charas weighing 110 Kgs. was recovered. It was sent for forensic examination and its report showed that it is Charas.
10. The Court below found their evidence to be trustworthy and, accordingly, convicted and sentenced the appellants as above.
11. Mr. S.N.P. Sinha, Senior Advocate, while assailing the judgment of conviction and sentence had raised several points. But as the appeal is to succeed on a very short point, I do not find it expedient either to incorporate or answer the same. Mr. Sinha, points out although there is nothing on record to show the date when the sample was taken but even it is assumed that sample was taken on 11th of January, 2001, when the contraband was seized there is inordinate delay in sending the sample for chemical examination. He draws our attention to Test memo (exhibit 7) and contends that from its perusal it is evident that the weight of the sample taken was approximately 25 grams and same was sent for Chemical examination on 2nd of February, 2001, which was received in the Chemical Laboratory, Customs House, Calcutta on 6th of February, 2001. He points out that according to the report of the Chemical Examiner the weight of the sample found in the Laboratory was 19.6 gram. He submits that there is nothing on record as to where the sample was kept from the day it was taken and the day it was sent. He further points out that although sample of 25 gram was sent for chemical examination but the sample received in the Laboratory was only 19.6.gram. These infirmities according to Mr. Sinha, clearly go to show that the prosecution has not been able to establish beyond all reasonable doubt that the sample taken from the contraband alleged to have been recovered from the possession of the appellants was tested by the Chemical examiner.
12. Mr. Sarvadeo Singh, appearing on behalf of the Union of India does not contest the aforesaid fact but submits that the confessional statements of the appellants are good enough to sustain their conviction. In support of the submission reliance has been placed on the decisions of the Supreme Court in the case of Madan Lal and Anr. v. State of U.P. : 2003CriLJ3868 and M. Prabhulal v. Assistant Director, Directorate of Revenue and Intelligence : 2003CriLJ4996 . In answer there to Mr. Sinha contends that the confessional statement cannot be made the basis of conviction as the appellants were not given any opportunity to explain the same in the examination under Section 313 of the Code of Criminal Procedure.
13. Having appreciated the rival submission, I am of the opinion that the alleged confessional statement of the appellants cannot form basis of conviction as undisputedly the appellants in their examination under Section 313 of the Code of Criminal Procedure were not asked to explain this circumstance appearing against them. It is well settled that examination of the accused under Section 313 of the Code of Criminal Procedure is not a mere formality and it imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. In my opinion as the confessional statement was not put to the appellants in their examination under Section 313 of the Code of Criminal Procedure, prosecution cannot be permitted to rely on that in order to bring home the charge.
14. Having found that the conviction of the appellant cannot be based on their confessional statement, I have to revert as to whether prosecution has brought home the charge against them beyond all reasonable doubt from the other materials adduced during the trial. The prosecution having not proved as to where the sample was kept from 11th of January, 2001 to 2nd of February, 2001 i.e. date in which it was seized and the date in which it was sent for chemical examination respectively and further being variance in the weight of the sample sent and received in the Chemical Laboratory, I am constraint to observe that the prosecution has not been able to prove its case beyond all reasonable doubt that the sample collected from the appellants is the same which was tested by the Chemical Examiner. That being the position, appellants deserve to be given the benefit of doubt and I grant that to them accordingly.
15. In the result, appeal is allowed, impugned judgment of conviction and sentence is set aside. Appellants are in jail, they be set at liberty forthwith unless required in any other case.