Dismissed

Hiralal Mahto v. the Union of India

Patna HC2 Aug 2013CR. APP (SJ)/132/2012

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal filed by a driver convicted for possessing ganja. Although noting minor procedural defects like not weighing all packets independently, the Court held the accumulation of evidence, uniform recovery, and defendant's confession established guilt without causing serious prejudice.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence affirmed.

Hiralal Mahto Vs the Union of India — Narcotics (NDPS) | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.132 of 2012

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================================================= Hiralal Mahto, S/O Late Kewal Mahto, R/O Village – Babu Ka Passa, P.S.Ekma, Distt-Chapra.

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The Union of India

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The State of Bihar

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.... .... Appellant Versus .... .... Respondents

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================================================= Appearance :

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For the Appellant/s : Mr. Manish Chandra Gandhi, Advocate For the Respondent no.2: Mr. Binod Bihari Singh, A.P.P. For the Union of India : Mr. Dwivedy Surendra, Sr. Panel Counsel

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================================================= CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA C.A.V. JUDGMENT Date: 02-08-2013

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Heard learned counsel for the appellant and learned

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counsel for the respondents.

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The solitary appellant has preferred this appeal against his conviction for the offences under section 20B and (II)(C) of the Narcotic Drug and Psychotropic Substances Act (hereinafter referred to as ‘Act’) and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh, and on non payment to further undergo simple imprisonment for six months, as awarded by 7^th Additional Sessions Judge, East Champaran, Motihari on 17^th December 2011 in N.D.P.S. Case No. 78/2004/6/2011 who simultaneously acquitted the appellant from the charge under section

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23C of the Act.

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The prosecution case in short as revealed from Exhibit – 5 is that the official complaint filed through Manoj Kumar Sinha, P.W.1, on 05.10.2004 at about 01.00 hour. He got an information through his superiors about trafficking of Ganja in huge quantity through a Truck bearing Registration No. WB-19/2147 behind stone chips, immediately a raiding team was constituted comprising of the officials besides two independent persons vide exhibit – I namely Sushil Kumar Patel and Sanjay Kumar (both not examined) and proceeded towards Ramgarhwa via Raxaul Ramgarhwa road, on the highway, the team stopped the Truck which was intercepted near Raghunath village, after a substantive chase and found the informations true, prima facie after arrival some stone chips in presence of the driver and the independent witnesses, since some white colored plastic bags were found hidden under the stone chips and one of such was opened and found containing two plastic packets tied with jute twine and one such was opened and that was found to have characteristic fragment smelling of Ganja.

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The appellant, driver of the Truck, introduced himself as Heeralal Mahto and since it was still dark for safety measures. The Truck was brought to the office at Raxaul where stone chips were unloaded and altogether 42 white colored plastic bags

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were recovered containing two packets each totaling to 84 wrapped with paper and plastic tied jute twine and on opening of all, they were found containing Ganja, on weighing they were found 798 kgs. (in moist condition) and the recovered Ganja valued at Rs. 15,96,000/which was seized along with the Truck. The Panchnama (Exhibit - 1) was drawn in the office, seizure list (Ext.2) prepared, samples (around 25 grams each) Ganja were taken, three representative samples were drawn. Test report received against samples send for chemical examination confirming the same as Ganja (Cannabis). During interrogation also the appellant confessed his guilt (Exhibit 4 and 6 in pen of one Pradip Kumar (not examined) introducing Subhash Rai and Manoj Rai as his companions and to apprehend them due steps had also been taken.

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During trial prosecution produced altogether 10 witnesses besides following documents there is no documentary or oral evidence adduced in defence and the trial court after considering of the materials arrived at the conclusion mentioned above.

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During the course of argument, it is contended on behalf of the appellant that the independent witnesses have not been examined, on the ground that their detailed addresses etc. are not available and each packets were also not independently weighed or samples were not obtained from all such packets. Besides the above,

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no convincing steps were taken to apprehend other persons including owner of the Truck and investigate upon the point emerging from alleged confessional statement of the appellant regarding some other persons as a culprit.

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Learned counsel further placed reliance on two decisions of this Court report in case of Radha Devi @ Indu Devi & Anr. Vs. The State of Bihar reported in 2011 (1) PLJR 1054 and Sanjeev Barman Vs. The State of Bihar reported in 2011 (2) PLJR 921; on behalf of the respondents contention was establishing all the charges against the appellant quite convincing and no interference is required in the finding of the trial court.

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Out of ten witnesses examined on behalf of the prosecution. P.W.1 Manoj Kumar Sinha, informer of the case, posted at the relevant time at Raxaul Custom Border, stated the prosecution case proved exhibit – 1 to 5. Preparation of sample and its transmission and receipt of report etc. In cross examination (para – 9), he admits in the truck there was owner book containing name of Kedar Sao, Calcutta, but on verification of address, it was found incorrect and he could not be traced. In para – 10 he admits that only one or two packets were taken out of stone chips at the place where appellant and the vehicle could be apprehended and on finding, everything was brought to office where all legal formalities were

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completed. In para – 17, he expressed his inability to state any detail about the interrogatory statement (Ext.6) of the appellant. Since it was not done in his presence. Though, in earlier paragraph, he has said about voluntary statement (Ext.4) of the appellant in his presence.

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P.W.2, Srikant Choudhary, Superintendent, Central Excise, is the person got confidential information about trafficking of Ganja and thereafter organized the raiding team, two independent witnesses with him and states the prosecution case proved interrogatory statements (Ext.6), stating the appellant facing his guilt. In para – 9 of the cross examination he states the appellant since was semi literate, anyhow he put his signature on all the pages and denied the suggestion that appellant was competent enough to right everything, but this suggestion was not accepted by the witness who further says about the scribe that he was a stranger and passerby. Since in spite of signature of the appellant appearing on the interrogatory statement (Ext-6), he appears putting his L..T.I. on the statement under section 313 of the Code of Criminal Procedure. What was the intention of the appellant behind it, it is not evident but in face of, he is not challenging the signatures on Exhibit – 6 and others, but, suggesting that he is capable to right and sign contrary to putting L.T.I. on 313 Cr.P.C. speaks a lot indicating attempt to confuse the court or mislead the entire proceeding and learned counsel for the

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appellant, in spite of trying his level best to place the materials, was not in a position to explain the circumstances under which the appellant did what is stated above.

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P.W.3, Sailendra Kumar Bajpai, an official of Custom Department, but not member of raiding party only participated in getting the articles weighing on unloading and recovery at Customs Office and there appears nothing in his cross examination inviting any discussion. P.W.4, Radhey Shyam Sharma, Inspector, Central Excise, one of the member of the raiding party stated the happenings including taking 30 grams Ganja each from three packets in cross examination admits recovery, weighing, preparation of panchnama etc. and denied the suggestion that the witnesses were paid witnesses.

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P.W.5, Sayed Mohammad Ali, another official arriving at the scene at the office after the vehicle and consignment etc. including the appellant was brought to office and recovery, weighing, seizure etc. was done in his presence. P.W.6, Hem Nath Jha, one of the member of the raiding party stated all the developments as narrated in official complaint as well by the witnesses admits seizure list Exhibit – 2 and panchnama etc. including recovery of 798 kgs. of Ganja in 84 packets kept in 42 bags (two packets each). P.W.7, Suresh Kumar Singh, another member of

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raiding party stated and supported the prosecution version during cross examination also. P.W.8, Inspector, Central Excise and Custom who was also present at the time of recovery and seizure etc.

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P.W.9, Raj Kumar Mehrotra, also stated the happenings emerging at the office in the morning after arrival of the Truck and consignment etc. stated about recovery, weighing etc. in presence of the paid witnesses, officials and appellant. P.W.10, Binod Kumar, a formal witness brought the destruction report in court and proved Exhibit – 8.

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As stated earlier, there is neither any oral nor documentary evidence in defence and from the trend of cross examination including statement of the appellant under section 313 of the Code of Criminal Procedure except denial of the allegations false implication at the cost of real culprit without furnishing any details as is evident from his voluntary and interrogation/confessional statements (Exhibit-4 & 6) is that he has tried to state developing some acquaintance with one Manoj Rai at Kolkata, at whose instance subsequently he had been driving that vehicle in the mids of journey for some time for the purpose of meeting natural call he was forced to come down and said Manoj Rai proceeded with the vehicle for a short destination and thereafter appellant joined his company and at his direction the appellant while proceeding with the petrol pump and

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said Manoj Rai (who had purchased the truck verbally from Kedar Sao) had given some assurance of immediately coming back to the petrol pump, proceeded on motorcycle, but before the appellant could arrive at the petrol pump, he was apprehended.

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It appears difficult for anyone to trace out anyone by his name and place only but appellant had not disclosed of any other detail of addresses of his companion, if at all, the appellant was innocent and everything might have been done by said Manoj Rai, who may also be a fictitious person and the prosecution has already said it could not trace out Kedar Sao whose name in the owner book was found, since name and address etc. mentioned was fake.

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The prosecution by examining the witnesses have been able to support its version regarding correct information, conduct of raid, recovery as such of Ganja in huge quantity, weighing, sampling etc.

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True it is, all the 42 bags or 84 packets have not independently been weighed which could also have been done, but having regard to the uniformity emerging from the materials available that each of 42 bags contains two packets that means in all 84 packets recovered the accumulated weight of Ganja was 7.98 quintals that means each packets, in average, was of 9.5 kgs. and samples from 3

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packets were taken of, which was tested and found Cannabis. These three packets brings the total contains 28.5 kgs. which itself comes to more than commercial quantity and there appears no apparent reason to disbelieve the prosecution trustworthy witnesses only because none of the three independent witnesses were examined and discard its case.

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In the case of 2011 (1) PLJR 1054 (Supra), the matter was quite different, none of the mandatory requirement were fulfilled nor even signature of the accused was taken on any paper allegedly prepared rather the informant himself investigated the case and seizure witnesses declared hostile but contra in this case almost all legal requirements have been fulfilled and the appellant in his undisputed statements voluntary and interrogatory also accepted his guilt which the prosecution has also substantiated.

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Likewise in another case 2011 (2) PLJR 921 (Supra) also the matter was different there, the prosecution was not able to produce material witness and other relevant aspect to substantiate the case besides weighing of all eight packets said to have been seized from the seat of train, but in the instant case, as stated every aspect appears proved and some minor deficiency cannot ruin prosecution case especially when there is nothing to show any prejudice is caused to the appellant.

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The Apex Court held in paragraph 16 in case of

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Khet Singh Vs. Union of India reported in (2002) 4 SCC 380 which reads as such:

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“16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence .”

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Having regard to the facts and circumstances as

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discussed above, there appears no merit in this appeal, consequently dismissed.

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(Akhilesh Chandra, J.)

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Rajeev/-

Hiralal Mahto v. the Union of India

Case brief

What is this about?

What did the court decide?

Hiralal Mahto v. the Union of India

Case brief

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