The High Court allowed the appeal and set aside the conviction because the prosecution failed to comply with Section 50 of the N.D.P.S. Act during personal search and did not follow mandatory reporting procedures under the Excise Act.
The impugned judgment is set aside; the appeal is allowed; the appellant is discharged from liability as he is on bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.169 of 2009
======================================================
Laxmi Thakur , son of Late Singhasan Thakur, resident of village-Chikani, Post Office-Barawa, Police Station-Harpur, District-East Champaran (Motihari).
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Raghav Prasad-Advocate For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P. ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
05-12-2018
Appellant Laxmi Thakur has been found guilty for an offence punishable under Section 20(b)(II) of the N.D.P.S. Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.25,000/- and in default thereof, to undergo S.I. for six months, additionally, by the Additional Sessions Judge, Fast Track Court-II, West Champaran at Bettiah vide judgment of conviction dated 22.11.2008 and order of sentence dated 25.11.2008, relating to Trial No.08 of 1994, arising out of Government Case No.02 of 1994.
Patna High Court CR. APP (SJ) No.169 of 2009 dt.05-12-2018 2/5
Kameshwar Prasad (PW-2), Amar Nath Mishra (not examined) and Harendra Sah (PW-3) and during course thereof, one kilogram Charas has been found from his possession. Consequent thereupon, the trial proceeded as is evident from the order sheet as a Complaint Case being governed by Excise Act and further, altogether two Pws were examined and then, on 17.04.1995, charge was framed under Section 20(b)(II) of the N.D.P.S. Act. It is evident that PW-1 and PW-2 never turned up after charge while PW-3, Harendra Sah has been examined on 13.06.2008 and after closure of the prosecution case, statement of the appellant/ accused was recorded under Section 313 of the Cr.P.C. and then, passing through Zigzag of the procedural law i.e. defence argument, the judgment impugned has been passed, subject matter of instant appeal.
Patna High Court CR. APP (SJ) No.169 of 2009 dt.05-12-2018 3/5
Excise Act. In terms of definition of intoxicated substance so prescribed under Section 2(13) of the Excise Act does contain presence of charas and that being so, is punishable under Section 47 of the Excise Act. That being so, when the initiation of proceeding has been taken up at the end of the excise official, then in that circumstance, the excise officials were quite competent to investigate the case in accordance with Section 77 of the Excise Act and in likewise manner, was empowered to exercise the power of a police official, during course thereof, as provided under Section 78 of the Act. Had there been proper exercise at the end of the excise officials in accordance with Section 77 as well as 78 of the Excise Act, the matter would have been properly investigated, which none of the PWs has spoken. Apart from this, as per Section 82 of the Excise Act, the matter was required to be reported to the superior officials, which as per evidence of PW-1 as well as PW-3 completely kept silence.
Patna High Court CR. APP (SJ) No.169 of 2009 dt.05-12-2018 4/5
to be taken up at their end.
Patna High Court CR. APP (SJ) No.169 of 2009 dt.05-12-2018 5/5
sealed after preparation of the sample, sample was sent to an expert, through the process of the Court any report was there at the end of the expert, the matter was reported to the superior officials. Though, the material exhibit has been produced in Court and is made a material Exhibit No.1, but there happens to be absence of remark at the end of the learned lower Court that it was in sealed condition bearing the case number and further, with regard to its custody during the intervening period, which has also been kept in abeyance at the end of PW-1 as well as PW-3. Not only this, neither PW-1 nor PW-3 has stated that case was investigated upon.
(Aditya Kumar Trivedi, J)
Vikash/-
| AFR/NAFR | A.F.R. |
|---|---|
| CAV DATE | N.A. |
| Uploading Date | 07.12.2018 |
| Transmission Date | 07.12.2018 |
3 issues framed by the court
Whether the provisions of Section 50 of the N.D.P.S. Act were complied with regarding personal search and presence of a Gazetted Officer.
Whether the excise officials properly exercised powers under the Excise Act to investigate and report the case.
Whether non-compliance with procedural requirements vitiates the conviction under the N.D.P.S. Act.
5 provisions across 2 enactments
Laxmi Thakur
State of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
