Seized Item Was Declared Ganja Without Examination: Patna High Court Sets Aside NDPS Conviction In A 1998 Case
Court noted that the seized articles were not even produced before the trial court during evidence.
Justice Alok Kumar Pandey, Patna High Court
The Patna High Court has set aside the conviction of a man under the Narcotic Drugs and Psychotropic Substances Act, 1985, observing that it was “beyond imagination” how a seized substance could be treated as ganja without any chemical examination to scientifically establish its nature. The Court held that the prosecution had failed to prove the charge beyond reasonable doubt due to serious investigative lapses, unreliable evidence, and non-compliance with mandatory procedural safeguards.
The Court noted that the seizure witnesses categorically denied any recovery in their presence and stated that their signatures had been obtained on plain papers. The Investigating Officer submitted a chargesheet without FSL report and further admitted that statements of witnesses were not recorded during investigation, while even the seized articles were not produced before the trial court during evidence.
Justice Alok Kumar Pandey observed, “…it is crystal clear that seized item/Ganja was not sent for chemical examination. The question arises how the seized item was alleged to be Ganja without having any FSL report. The very pertinent question arises how the Investigating Officer submitted charge sheet under Section-20(B) of N.D.P.S. Act without having report of FSL regarding Ganja and how the case has been proceeded. It is beyond the imagination that without any examination, the recovered materials were declared to be narcotic substance and the contention of learned counsel for the appellant is quite convincing that the very basis to prove the case of NDPS is doubtful in the absence of FSL report regarding the recovered materials and the prosecution has failed to prove its case on several counts including non-compliance of mandatory provision of Section 50 of the NDPS Act under which it was statutory obligation of the searching officer to inform the accused of his right to be searched in presence of a gazetted officer or a Magistrate and in absence of compliance of said provision, the alleged search and seizure stands vitiated. In the present case, there is nothing on record which reflects that the above mandatory provision has been complied by the prosecution side”.
“A pertinent question arises that in absence of specific boundary of place of occurrence, how the place of occurrence can be established and in absence of place of occurrence, how the prosecution case can be proved. Apart from that, there are several contradictions in the statements of PW-2 and PW-4. PW-2 is the informant of the case and he has stated that besides recovery of 500 gram of ganja from one blue coloured jeans bag, there was recovery of ten plastic packets each containing approximately 2 grams of Ganja and two plastic packets each containing approximately 5 grams of Ganja along with one small weighing balance but PW4 has only stated about recovery of 500 gram of Ganja along with one weighing balance from the hut, but he is silent about the recovery of ten plastic packets each containing approximately 2 grams of Ganja and two plastic packets each containing approximately 5 grams of Ganja. Further, PW-2 and PW-4 have not pointed out specific boundary of the place of occurrence. In the light of facts and circumstances of the case, the contention of learned counsel for the appellant is quite convincing that prosecution has failed to prove its case beyond the reasonable doubt”, it further noted.
Advocate Ashok Kumar Singh appeared for the appellant and Mukeshwar Dayal, APP appeared for the respondent.
The appeal challenged a 2010 judgment of the Additional Sessions Judge, Ara, Bhojpur, by which the appellant had been convicted under Section 20(b) of the NDPS Act and sentenced to ten years’ rigorous imprisonment along with a fine of ₹20,000.
According to the prosecution, on January 20, 1998, a police team from Shahpur Police Station conducted a raid on a thatched hut near Shahpur Bazaar after receiving secret information that the accused was selling ganja. The police claimed recovery of approximately 500 grams of ganja along with small packets allegedly meant for sale and a weighing scale from the hut.
The appellant contended that the entire prosecution case rested on an allegedly defective search and seizure. It was argued that independent seizure witnesses had turned hostile and denied witnessing any recovery, while the police witnesses themselves were unable to clearly establish the location, ownership, or boundaries of the hut from where the contraband was allegedly recovered.
It was further pointed out that mandatory safeguards under the NDPS Act, including informing the accused of his right to be searched before a Gazetted Officer or Magistrate, had not been followed.
Noting that the witnesses of seizure have not supported the prosecution case, the Bench said, “…on the point of recovery of alleged contraband narcotic substance and they have taken a U-turn from the story of prosecution and stated that neither search of appellant’s hut was made in their presence nor was Ganja recovered from the hut of the appellant in their presence. In this way, the very independent witnesses, who are the witnesses of seizure list, have not supported the case of the prosecution”.
Concluding that the prosecution failed to discharge its burden of proving guilt beyond reasonable doubt, the Court extended the benefit of doubt to the appellant and allowed the appeal, setting aside both the conviction and sentence.
Cause Title: Tilakhdhari Yadav v. The State of Bihar Criminal Appeal (SJ) No.49 of 2011
Appearances:
Appellant: Ashok Kumar Singh, Anant Kumar Pandey, Advocates.
Respondent: Mukeshwar Dayal, APP.