Allowed

Rajiv Hussain @ Raju Hussain v. the State of Bihar

Patna HC15 Jul 2013CR. APP (DB)/767/2011

Case brief

AI extract

What is this about?

The Court acquitted the appellants after upholding their appeal, setting aside convictions for smuggling narcotic drugs. The judgment held that failure to seal seized articles, taking samples in the absence of the accused, and substantial delays in forensic analysis violated statutory requirements, entitling the accused to the benefit of doubt.

What did the court decide?

Conviction set aside; appellants granted benefit of doubt; directed to be released forthwith if not wanted in any other case.

Rajiv Hussain @ Raju Hussain Vs the State of Bihar — Narcotics (NDPS) | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.767 of 2011

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Against the Judgment of conviction and Order of sentence dated 25.05.2011, 03.06.2011 passed by the Sessions Judge-cum-Special Judge, Katihar, in Katihar Rail P.S. Case No. 18 of 2007, G.R. Case No. 25 of 2007. ===========================================================

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Rajiv Hussain @ Raju Hussain, son of Monirul Islam, resident of VillageBarabalasi, Jiranpur, Police Station-Kotwali Cooch Bihar, District-Cooch Bihar. (W.B.). .... .... Appellant. Versus The State of Bihar .... .... Respondent. with Criminal Appeal (DB) No. 788 of 2011 =========================================================== Kishori Barman, son of late Purnu Barman, resident of Jarenpur, P.S.-Kotwali (Cooch Vihar), District-Cooch (Vihar) (W.B.). .... .... Appellant. Versus The State of Bihar .... .... Respondent. with Criminal Appeal (DB) No. 789 of 2011 =========================================================== Mamta @ Mumtaz Bibi, wife of Sajan Ali, resident of Jarenpur, P.S.-Kotwali (Cooch Vihar), District-Cooch (Vihar) (W.B.). .... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 824 of 2011 =========================================================== Biplab Berman, son of Sri Biswanath Berman Resident of Village + P.O. Jinanpur, District - Cooch Bihar , West Bangal.

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.... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : (In CR. APP (DB) No. 767 of 2011)

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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For the Appellant : Mr. Md. Helal Ahmad, Adv. Mr. Anjum Akhtar, Adv. (In CR. APP (DB) No. 788 of 2011) For the Appellant : Mr. Mr. Sanjeev Kumar Singh, Adv. (In CR. APP (DB) No. 789 of 2011) For the Appellant : Mr. P.K. Jaipuriyar, Adv. Mr. Anshuman Jaipuriyar, Adv. (In CR. APP (DB) No. 824 of 2011) For the Appellant : Mr. Subodh Kumar Jha, Adv. Mr. Pranav Kumar Jha, Adv. For the State in all the Cases : Mr. Aswani Kumar Sinha, A.P.P. Ms. Shashi Bala Verma, A.P.P. Mr. Dilip Kumar Sinha, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA

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and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 15-07-2013

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The appellants in these four appeals have challenged the judgment and order dated 25.05.2011, 03.06.2011 passed by Sessions Judge-cum-Special Judge, Katihar in Katihar Rail P.S. Case No. 18 of 2007, G.R. Case No. 25 of 2007, whereunder the four appellants have been convicted for the offence under Sections 20, 22 of N.D.P.S. Act, 1985 read with Section 34 of the Penal Code. They have been sentenced to undergo R.I. for 12 years each under both the counts with further direction to pay fine of Rs. 1,00,000/- each, in default of payment of fine, appellants have been directed to further undergo R.I. for one year. The sentences have been directed to run concurrently.

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Prosecution case in brief as set out in the written report of Sri Raj Kumar, Inspector, Railway Protection Force, Post-Katihar

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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(PW-7) is that he received telephonic confidential information on 12.02.2007 at 17:45 hours that narcotic substance is being smuggled through Guahati-New Delhi, Rajdhani Express, Train No. 2423 in AS-3 tier Coach No. 15564. Having received the information, PW-7 organized a team comprising of the officers and men of R.P.F. Post, G.R.P.S. Katihar and reached platform no. 8 of Katihar Railway Station where New Delhi bound Rajdhani Express was scheduled to arrive. No sooner, New Delhi bound Rajdhani Express arrived at platform no. 8, PW-7 and his men entered aforesaid coach no. AS-3 tier and asked passenger occupying berth no. 52 to detrain with his luggage i.e. light gray color suitcase tied with Sutli and cellotape. The suitcase was opened on the platform and 12 Kg. Ganja wrapped in white polythene was recovered, which was seized by PW-7 at the platform in presence of the witnesses. The person apprehended made disclosure that his other three companions including a woman are also travelling in the same coach with number of luggage i.e. airbag, suitcase etc. on berth no. 49 and other berths. The person apprehended also disclosed the name of his other companions as Rajiv Hussain @ Raju Hussain aged about 24 years son of Monirul Islam, Kishori Barman aged about 38 years son of Purnu Barman and Mumtaj aged about 32 years wife of Sahajan, all resident of Village and P.O.

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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Jeranpur, P.S. Kotwali, District-Coochbehar, West Bengal. Having derived the aforesaid information from the person apprehended, the information extracted was also passed on to the G.R.P. escort party moving with the train and to Sri Umesh Prasad Singh, Officer-incharge, G.R.P., Barauni where the train was scheduled to stop next so that the other three accomplice of the person apprehended may be apprehended at Barauni. The person apprehended disclosed his name as Biplab Berman who was handed over to the Officer-in-charge G.R.P. with the seized articles on 13.02.2007 alongwith written report of the same which is the basis of the present case registered on the same day with direction to Sri Singheshwar Singh, A.S.I. to investigate the case.

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Delhi bound Guahati Rajdhani Express next stopped at Barauni junction where the other three appellants i.e. Rajiv Hussain @ Raju Hussain, Kishori Barman and Mamta @ Mumtaz Bibi were asked to detrain by the Officer-in-charge of G.R.P., Barauni, Umesh Prasad Singh, PW-1 alongwith their luggage which was also checked at Barauni Junction platform and Ganja was found in four airbags, one handbag, two atachi-cases, one trolley bag. Ganja found in the aforesaid luggage was however not weighed at Barauni Junction but Umesh Prasad Singh, Officer-in-charge, Barauni, G.R.P., having

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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apprehended the three appellants at Barauni Junction forwarded them to Katihar G.R.P. along with their luggage.

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Katihar G.R.P. having received Ganja seized by informant, Raj Kumar and Umesh Prasad Singh Officer-in-charge, Barauni, G.R.P. prepared third seizure list which is dated 13.02.2007 and it appears from perusal of the third seizure list that 12 K.G. of Ganja was recovered from appellant, Biplab Berman, by informant Raj Kumar on 12.02.2007 vide seizure list dated 12.02.2007 prepared by informant, Raj Kumar. Total quantity of Ganja recovered from Biplab Berman and other three appellants apprehended at Barauni Railway Station is 81 K.G. and 500 Grams. Investigating Officer, PW-6, Singheshwar Singh, having examined the members of the escort party including Officer-in-charge, Barauni G.R.P.S. Umesh Prasad Singh on telephone, submitted charge-sheet against the four appellants.

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It appears, in support of the charge during trial, prosecution examined P.W.1, Umesh Prasad Singh, Officer-in-charge of Barauni G.R.P. PW-2, Hari Kishore, Constable, R.P.F. Katihar, who was member of the raiding party which asked appellant Biplab Berman to detrain with his luggage at Katihar. PW-3, Bimal Chandra Alok is also Constable, R.P.F. and member of the raiding party. PW-2

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and 3 are the witnesses of seizure of Ganja effected by informant-Raj Kumar. PW-4, Bibhash Mandal is Constable of G.R.P., Katihar and member of the escort party which escorted New Delhi bound Rajdhani Express on 12.02.2007 after receipt of telephonic information identified three other accomplice of Biplab Berman also travelling in the same compartment but could not be identified at Katihar. PW-5, Arbind Kumar Jha, is Officer-in-charge, G.R.P.S., Katihar. PW-6, Singheshwar Singh A.S.I., G.R.P.S. Katihar is the investigating officer of the case. PW-7, Raj Kumar is Inspector, R.P.F. Post, Katihar and informant of the case. PW-8, Mahendra Mandal, Hawaldar, G.R.P.S., Katihar is also member of the escort party and seizure list witness of seizure effected at Barauni Railway Station. PW-9, Md. Javed is train ticket examiner (T.T.E.) in-charge of B-3 coach, in which the four appellants were travelling with luggage and detrained at Katihar and Barauni. PW-10, Dinesh Kumar Paswan, Head Constable of R.P.F., Katihar, who is also witness of seizure list made by PW-7, Raj Kumar at Katihar. PW-11, Bankim Rai is labourer, who put his signature on seizure list Ext.-3/1.

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Besides the aforesaid prosecution witnesses, prosecution also relied upon the following documentary evidence.

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Exhibit-1 is the production-cum-seizure list in the hand

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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writing and signature of P.W.1 Umesh Prasad Singh. Exhibit-2 is the Signature of P.W.2 Hari Kishore, on the seizure list, Exhibit-5. Exhibit-2/1 is the signature of P.W.3 Bimal Chandra Alok, on seizure list, Exhibit -5. Exhibit-2/2 is the signature of P.W.10 Dinesh Kumar Paswan, on the seizure list. Exhibit-3 is the signature of P.W. 4 Bibhash Mandal, on production-cum-seizure list, Exhibit-1, prepared at Barauni Railway Station. Exhibit-3/1 is the signature of P.W. 11 Bankim Rai, on production-cum-seizure list. Exhibit-4 is the written report of informant P.W. 7 Raj Kumar. Exhibit-4/1 is the endorsement on written report. Exhibit-4/2 is the signature of PW-7, Raj Kumar on written report, Exhibit-4. Exhibit-5 is the seizure list dated 12.02.2007 made by and under the signature of informant, P.W.7 Raj Kumar, at Katihar. Exhibit-6 is the seizure list dated 13.02.2007 prepared by G.R.P., Katihar taking into account the seizure made by P.W.7 informant and P.W.1 Officer-in-charge of G.R.P.S., Barauni. Exhibit7 is the signature of Raj Kumar on the seizure list prepared by him. Exhibit-8 is the signature of Raj Kumar on document giving his personal search. Exhibit-9 is the signature of P.W.8 Mahendra Mandal, on seizure list, Exhibit-6. Exhibit-10 is the report of Forensic Science Laboratory (F.S.L.) dated 25.02.2009.

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From the ocular, documentary evidence as produced by

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prosecution to support the prosecution case, it appears that Raj Kumar, Inspector, R.P.F., Post-Katihar, PW-7, received confidential information on 12.02.2007 at 17:45 hours that Ganja is being smuggled by Delhi bound Guahati Rajdhani Express Train No. 2423 coach no. 15564 AS-3 tier. Having received confidential information, PW-7 organized raiding team and came to platform no. 8, where New Delhi bound Rajdhani Express was scheduled to arrive, after arrival of the train, the raiding party entered compartment AS-3 tier no. 15564 and apprehended Biplab Berman, who was travelling on berth no. 52 and directed him to detrain with his luggage. Luggage of Biplab Berman was checked on the platform and it was found that he had concealed 12 K.G. of Ganja, wrapped in white polythene in his suitcase. Biplab Berman also disclosed that his three companions are also travelling in the same AS-3 coach, from which he had been asked to detrain.

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Having learnt about the accomplice of Bilab Berman who could not be apprehended at Katihar, PW-7 passed on the information to officer-in-charge, G.R.P.S., Katihar P.W. 5 Arbind Kumar Jha, who alerted the members of the escort party travelling in the train as also to the Officer-in-charge, G.R.P., Barauni where the train was next scheduled to stop. Having received the information, members of

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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the escort party identified the other companions of Biplab Berman in the compartment, from which Biplab Berman was asked to detrain. No sooner, the train reached Barauni as per earlier information, PW-1, Umesh Prasad Singh, Officer-in-charge, G.R.P., Barauni with the help of members of the escort party identified and apprehended the three companions of already apprehended accused Biplab Berman and also proceeded to check and seize their luggage as per seizure list dated 12.02.2007 prepared at 9:05 P.M., Exhibit-1, and forwarded the accused apprehended and luggage seized at Barauni Junction to Katihar G.R.P. Whereafter, combined seizure list dated 13.02.2007 was prepared by Ramdev Paswan, A.S.I., G.R.P., Katihar, Exhibit-6, wherefrom it appears that Ganja seized from the four appellants weighed 81 K.G. and 500 Grams which also included the Ganja seized from the custody of appellant, Biplab Berman. On the basis of the written report, seizure lists present case was registered and the F.I.R., seizure lists forwarded to Sessions Judge-cum-Special Judge, Katihar on 13.02.2007.

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Prosecution witness, PW-1, Umesh Prasad Singh, Officer-in-charge of Barauni Rail Police Station stated in his evidence in Court that on the basis of the telephonic information received from Katihar G.R.P., he arrested two accused persons on 13.02.2007 and

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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seized their luggage. 13.02.2007, the date of arrest of two accused as mentioned in Court by PW-1 is an obvious mistake for 12.02.2007 and 3 arrestees as seizure list prepared at Barauni G.R.P. is dated 12.02.2007 and on that day three accomplice of Biplab Berman were arrested. He further stated in his evidence that accused persons apprehended at Barauni as also their luggage was sent to Katihar Rail Police Station by Amrapali Express on the same day.

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PW-2, Hari Kishore, Constable, R.P.F. Post Katihar is the member of the raiding party which apprehended Biplab Berman from 3 tier coach no. 15564 of Delhi bound Rajdhani Express on 12.02.2007 and is also a witness on the seizure list, whereunder 12 K.G. Ganja was found concealed in the atachi-case of Biplab Berman which was seized at railway platform, Katihar.

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PW-3, Bimal Chandra Alok, Constable, R.P.F. Post, Katihar is also witness of seizure list by which 12 K.G. Ganja was seized from the custody of Biplab Berman at platform no. 8 of Katihar Railway Station.

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PW-4, Bibhash Mandal, Constable, G.R.P.S., Katihar is also member of escort party which escorted Delhi bound Rajdhani Express on 12.02.2007 from Katihar to Barauni. From his evidence, it appears that he identified the other three accomplice of Biplab

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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Berman in the 3 tier coach, from which Biplab Berman was arrested and on the basis of his identification, the three accused were apprehended by PW-1, Umesh Prasad Singh no sooner, Delhi bound Rajdhani Express reached Barauni Junction. He has also stated that having received the telephonic information from Katihar G.R.P. through mobile, the witness and other members of the escort party identified the accomplice of Biplab Berman between Karhagola and Naugachia Railway Station(s).

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PW-5, Arbind Kumar Jha, Officer-in-charge of G.R.P.S., Katihar, is also the member of the raiding party, which apprehended Biplab Berman at Katihar Railway Station and asked him to detrain from Delhi bound Rajdhani Express. He has further stated that on the basis of the disclosure made by Biplab Berman, he passed on the information about the other accomplice of Biplab Berman to Barauni G.R.P. as also to the members of the escort party in the train. He has identified not only Biplab Berman who was apprehended at Katihar Railway Station but also the three other appellants, who after their apprehension at Barauni Junction were forwarded to Katihar G.R.P.S. He further stated that the Ganja seized from Biplab Berman at Katihar Railway Station, the Ganja seized from his three accomplice at Barauni Railway Station, and forwarded

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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to Katihar G.R.P.S. was kept by him in the Malkhana of Katihar G.R.P. Station P.W.5 has not stated in his evidence that sample from the seized Ganja was ever taken in presence of the four accused persons.

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P.W.6, Singheshwar Singh, A.S.I., Katihar G.R.P., is the Investigating Officer of the case. He has stated in his evidence that he examined Officer-in-charge, Barauni G.R.P. on telephone. He has also stated that he received two seizure lists prepared at Katihar and Brauni Exhibits 5 and 6. He has further stated in paragraph 8 that on 10.05.2007 he sent samples from the seized Ganja for chemical examination by Forensic Science Laboratory (F.S.L.). From evidence of P.W.6, it does not appear that he ever took sample from the seized Ganja in presence of the accused persons for being sent to Forensic Science Laboratory (F.S.L.) for its chemical examination, so as to confirm that the seized article was Ganja.

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PW-7, Raj Kumar, Inspector, R.P.F. Post, Katihar, informant of the case has reiterated the version noted by him in his written report and has further confirmed that he is the author of the written report Exhibit 4 and seizure list Exhibit 5. PW-7, Raj Kumar, has also not stated in his evidence that sample from the seized Ganja was ever taken by PW-5 Officer-in-charge, G.R.P.S. Katihar or PW-6 Investigating Officer, Singheshwar Singh, in his presence.

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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PW-8, Mahendra Mandal, Havaldar, G.R.P. Katihar, is a member of escort party which escorted Delhi bound Rajdhani Express on 12.02.2007 to Barauni and is witness of the seizure made by PW-1 at Barauni.

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PW-9, Md. Javed, Train Ticket Examiner (T.T.E.) incharge of the coach from which Biplab Berman was asked to detrain at Katihar and the other three were asked to detrain at Barauni has also not stated in his evidence that in his presence Ganja was seized from the custody of the accused persons.

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P-W-10, Dinesh Kumar Paswan, Head Constable, R.P.F. Post, Katihar is also member of the raiding party and is witness of seizure list prepared at Katihar indicating recovery of Ganja from Biplab Berman. In paragraph 11 of his evidence, PW-10 has categorically stated that no gazetted officer was available at the time of search of Biplab Berman at Katihar.

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PW- 11, Bankim Rai, is a formal witness as he has put his signature on production-cum-seizure list as Ext.3/1 but denied about the recovery made in his presence.

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Learned counsel for the appellants challenged the conviction of the appellants on the ground that search and seizure made from the luggage of the appellants has been effected violating

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013

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Section 50 of the N.D.P.S. Act as according to learned counsel before effecting search and seizure made from their luggage, appellants were not informed about their right of being searched in presence of the Magistrate/Gazetted Officer. Learned counsel further submitted that search and seizure is even otherwise illegal, as sample from the seized commodity was not taken in their presence. It is further submitted that seizure having been effected on 12.02.2007, the sample was admittedly sent for examination by Forensic Science Laboratory (F.S.L.) on 10.05.2007 i.e. after inordinate delay and the delay having not been explained by the prosecution together with the fact that during the period of three months i.e. 12.02.2007–10.05.2007 the seized commodity remained in the Malkhana of G.R.P.S., Katihar without seal and sample having been taken behind the back of the appellants there is no guarantee that the commodity seized from the possession of the appellants was not exchanged with Ganja.

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In support of the aforesaid argument, learned counsel for the appellant referred not only to Section 50 but also Sections 52 to 55 of the N.D.P.S. Act. With reference to Sub-Section 3 of Section 52 of the N.D.P.S. Act, learned counsel for the appellants pointed out that after receipt of the person arrested and article seized under Sub Section 2 of Section 42, the Officer-in-charge of G.R.P., Katihar

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Patna High Court CR. APP (DB) No.767 of 2011 dt.15-07-2013 15

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should have not only forwarded the appellants to the Special Judge but should also have sealed the seized articles and after obtaining orders from the Special Judge drawn sample from the same in presence of the appellants but in the instant case, Officer-in-charge, G.R.P., Katihar P.W.5, only kept the seized articles in the Malkhana without placing seal over the same and thereby failed to take such measures as was necessary for disposal of the seized articles in accordance with law to the detriment of the appellants.

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The samples were forwarded to the Forensic Science Laboratory (F.S.L.) on 10.05.2007 behind the back of the appellants and thereby provisions of Section 55 of the N.D.P.S. Act was violated. The Forensic Science Laboratory (F.S.L.) submitted report dated 25.02.2009 which was received by Sessions/Special Judge under memo no. 474 dated 02.04.2009 i.e. after about two years which is further indicative of the fact that not only samples were belatedly sent but report from the Forensic Science Laboratory (F.S.L) was also received after two years.

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Counsel for the State without disputing the fact that seized articles were not sealed on the date of seizure i.e. 12.02.2007 or on 13.02.2007 by P.W.5 the Officer-in-charge, G.R.P., Katihar, or P.W.6 Investigating Officer and that the samples were not taken on

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10.05.2005 in presence of appellants submitted that in the instant case Section 50 of N.D.P.S. Act has no application as the case is based on seizure made from the bags of the appellants and not from their person.

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In the present case, samples from the seized article was taken in absence of the appellants. Sample from the seized article was sent to the Forensic Science Laboratory (F.S.L.) belatedly i.e. after about three months from the date of seizure 12/13.02.2007 on 10.05.2007. The report dated 25.02.2009 from the Forensic Science Laboratory (F.S.L.) was also received under memo no. 474 dated 02.04.2009 after considerable delay. In the circumstances, there has been substantial non compliance of sub sections 2, 4 of Sections 52 and 55 of the N.D.P.S. Act. In this connection, reference may also made to the judgment of this Court in the case of Shekhar Dutta Vs. State of Bihar reported in { 2013(1) B.L.J. page 343} .

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Having analyzed the prosecution evidence as also the submission made on behalf of the parties and having found that article seized from the possession of the appellants on 12/13.02.2007 as is evident from seizure list, Exhibits. 5, 1 and 6 was never kept under seal of either the officer who seized the article PW-7, PW-1 or of PW-5, Officer-in-charge, G.R.P. Katihar or under the seal of PW-6

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Investigating Officer, the sample having not been taken from the seized article in presence of the appellants, the delay of three months in sending the sample to Forensic Science Laboratory (F.S.L.) and of two years in receipt of report from Forensic Science Laboratory (F.S.L.) having not been explained by the prosecution we have no option but to grant benefit of doubt to the appellants, their conviction recorded under impugned judgment is set aside for the failure of the prosecution to prove its case beyond reasonable doubt.

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These appeals are accordingly allowed, appellants are directed to be released forthwith if not wanted in any other case.

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(V.N. Sinha, J)

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(Rajendra Kumar Mishra, J)

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Safik/Bhardwaj

Rajiv Hussain @ Raju Hussain v. the State of Bihar

Case brief

What is this about?

What did the court decide?

Rajiv Hussain @ Raju Hussain v. the State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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