Judgment:
1. Sole appellant Chandrika Kurmi has been found guilty for an offence punishable under Sections 20(c ), 22(c ) of the N.D.P.S. Act vide judgment dated 04.08.2009 and has been sentenced to undergo rigorous imprisonment for ten years as well as also fined Rs. One lac in default thereof, to undergo simple imprisonment for three years additionally, independently under both counts vide order dated 17.08.2009 by the Additional Sessions Judge-III-Cum-Special Judge, West Champaran, Bettiah in Shikarpur P. S. Case no.205 of 2002, Trial no.36 of 2002, G. R. No.2662 of 2002 has challenged the same under present appeal.
2. Manchun Prasad Singh (PW-10) filed written report disclosing therein that on 22.09.2002 at about 4.00 p.m., he received confidential information regarding assemblage of persons in the field at Sisai village for the purpose of sale-purchase of Ganja illegally, a raiding party was constituted and raid was conducted. As soon as, they had reached near school at village-Sisai, they found 10-12 persons running away towards Northern direction. They, after getting down from Jeep, began to chase and during course thereof, one person was apprehended who after throwing bag was running therefrom. On query, he disclosed his identity as Chandrika Kurmi, the appellant and further shown his ignorance with regard to identity of other co-accused. Furthermore, during search eleven (11) bags of Ganja was recovered from a Sugarcane field weighing 140 kilograms, which was seized in presence of two seizure list witnesses namely Radhe Shyam Mishra and Sunil Mishra. The apprehended accused failed to disclose his entitlement regarding possession of aforesaid Ganja.
3. On the basis thereof, after registering Shikarpur P. S. Case no.205 of 2002, investigation commenced followed with submission of charge sheet, whereupon appellant was put on trial and met with ultimate result, the subject matter of instant appeal.
4. The defence case as is evident from mode of cross-examination as well as from the statement of the appellant recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence as well as that of false implication.
5. During course of trial altogether twelve (12) PWs have been examined. Out of whom, PW-1 is Radhe Shyam Mishra, PW-2 is Rajgrih Ram, PW-3 is Vijay Kumar Pandey, PW-4 is Shiv Paswan, PW-5 is Taran Dhobi, PW-6 is Ramdevi Baitha, PW-7 is Sunil Kumar Singh, PW-8 is Tarkeshwar Nath Dubey, PW-9 is Sunil Mishra, PW-10 is Manchun Prasad Singh, PW-11 is Prakash Chaudhary and PW-12 is Shobhit Ram. Prosecution had also exhibited some documents. Exhibit-1 series signature of seizure list witness, Exhibit-2 F.S.L. Report, Exhibit-3 seizure list, Exhibit-4 written report and Exhibit-5 formal F.I.R.
6. From perusal of lower court record, it is evident that PW-1 did not support the case of the prosecution and on account thereof, was declared hostile. With regard to remaining witnesses, it is evident that appellant had halfheartedly contested the case, because of the fact that PW-2 Rajgrih Ram, PW-3 Vijay Kumar Pandey, PW-7 Sunil Kumar Singh, PW-8 Tarkeshwar Nath Dubey, PW-10 (informant) Manchun Prasad Singh have not been cross-examined and on account thereof, whatever their evidences were led during course of examination-in-chief remained untested. Only PW-4, PW-5, PW-6, PW-9, PW-11 and PW-12 faced the rigour of cross-examination.
7. On account of presence of stringent mode of sentence, times without number, it has been held by the Honble Apex Court that prosecution is required to follow up and comply the mandatory requirement of law so prescribed under Chapter-V of the N.D.P.S. Act governing right from initial stage of search, seizure and apprehension till submission of charge sheet. The first stage, so far facts of present case is concerned attracts application of Section 42 of the N.D.P.S. Act whereunder, the police official above the rank of Sepoy have been properly identified to search, make seizure and arrest the culprit having in possession of Narcotic as well as Psychotropic substance in contravention of the act without warrant. Side by side, in terms of sub-section 2 of Section 42, an obligation has been cast upon the said police official to inform within next 72 hours with regard to search, seizure and apprehension of an accused. This issue has been subject to consideration and in Karnail Singh v. State of Haryana reported in 2009 CR.L.J. 4299 the constitutional Bench of the Honble Apex Court has taken into consideration the effect on account of non-compliance of Section 42(2) of the NDPS Act and concluded in under para-17 as follows:-
œ17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.?
8. Now, the evidence has to be looked into to search out whether the prosecution had complied with mandatory provisions so prescribed under Section 42(2) of the N.D.P.S. Act. PW-10 is the informant. During course of his examination-in-chief, he had stated that on 22.09.2002, Dhirendra Kumar Pandey was officer-in-charge who received confidential information with regard to sell-purchase of Ganja and on account thereof, as per his direction raiding party was constituted under his leadership and accordingly, they reached at village-Sisai. As soon as, they came near school, they found 10-12 persons running there from seeing the police Jeep who were chased and out of them one was apprehended who, after throwing bag had also joined with others. On query, he disclosed his identity as Chandrika Kurmi, the appellant, however, shown ignorance with regard to other co-accused. Then thereafter, the place was searched and eleven (11) bags of Ganja were recovered for which seizure list was prepared in presence of Radhe Shyam Mishra and Sunil Mishra, who put their signatures. It has further been disclosed that during interrogation, Chandrika Kurmi had confessed his guilt and further disclosed that he happens to be actively indulged in sale-purchase of Ganja. The other material witnesses that means to say PW-2 Rajgrih Ram another A.S.I. PW-4, PW-5 and PW-6 the Chaukidars, PW-7 and PW-8 the constables kept mum on this very score during course of evidence. PW-12, the I.O., who was not at all member of the raiding party rightly shut himself on this score hence, from the evidence as discussed above, it is apparent that there happens to be violation of Section 42(2) of the N.D.P.S. Act and on account thereof, as per guideline prescribed by the Constitutional Bench (in Karnail Singhs case Supra), the prosecution case has to meet with ultimate consequence.
9. Now, coming to other aspect, again there happens to be serious lapses and the same should be gathered from the evidence of PW-10, the informant. In terms of Section 52(3) of the N.D.P.S. Act, the persons so arrested along with seized material is to be produced before the Competent Officer so notified in terms of Section 53 of the Act, which is found to be properly complied with as is evident from the facts of the case as soon after arrest of appellant Chandrika Kurmi along with eleven (11) bags of Ganja followed with preparation of seizure list as well as written report by PW-10 was produced before the Officer-in-Charge of Shikarpur P. S. However, the Officer-in-Charge, in that event was expected to discharge his functions in terms of Section 55 of the N.D.P.S. Act whereunder the seized articles were to be kept under safe custody and during said course sampling should have been made followed with affixing seal thereupon. On this score, when the evidence of PW-10 has been gone through, it is apparent that in specific term, he failed to narrate that sampling was made in his presence after production of Ganja by him before the O/c as well as seal was affixed. The aforesaid illegality is further found exposed from the evidence of PW-12 para-4 wherein, he had stated that he had not put specific mark over the bag which was seized from the possession of accused. He had further disclosed that bags were not sealed. It was kept in usual manner at Malkhana. In para-6, he had stated that sampling was not done in presence of Magistrate. On 24.10.2002, sample was sent to Forensic Examination. Having absence during course of examination-in-chief regarding mode of sampling and further failed to disclose the mode of sampling under para-6 of cross-examination did not satisfy the ingredients so prescribed under Section 55 of the N.D.P.S. Act.
10. Apart from Section 42(2) of the N.D.P.S. Act, with regard to have the prosecution properly prosecuted against the real culprit, the act found more sensitized in a manner by prescribing another kind of obligation upon the prosecution in terms of Section 57 of the N.D.P.S. Act whereunder, the officer was required to inform within next 48 hours to his superior officer regarding search, seizure as well as registration of the case. Again, as is evident from the evidence of the PWs, the aforesaid provision has not been complied with.
11. Apart from this, there happens to be FSL Report (Exhibit-2) disclosing the sample to be Ganja, but is not going to improve status of the prosecution on account of non-compliance of the mandatory provisions. Furthermore, the confession before the police happens to be inadmissible. Now, coming to the facts of the case, it is evident that appellant was not apprehended along with Ganja rather, as per own narration he was apprehended while he along with others were running away. The prosecution had tried to pinpoint him by introducing the story that he ran after throwing bag containing Ganja as stated by PW-10 informant, but is not found corroborated by the other witnesses that means to say the PW-2, PW-4, PW-5, PW-6, PW-7 and PW-8. PW-3 had gone a step forward by stating that from his physical possession Ganja was seized. If there happens to be truthfulness in his version, then in that event, again there happens to be non-compliance of Section 50 of the Act wherein, the prosecution is bound to disclose the accused that his personal search is to be carried out in presence of Gazetted Officer and in case there happens to be denial on the part of the accused then and then only, the search in absence of Gazetted Officer is to be effected.
12. In any view of the matter, on account of non-compliance of mandatory provisions of law as discussed above, the judgment impugned did not justify its sustenance, on account thereof, is set aside. The appeal is allowed. The appellant is under custody, hence is directed to be released forthwith if not wanted in any other case.