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Judgment
The captioned appeals arise out of a common judgment, hence the same have been clubbed and heard together and being disposed of with a common judgment.
Heard Mr. Nilesh Kumar, learned counsel for the appellants and Mr. Pankaj Kumar Mishra, learned A.P.P.
The present appeals are directed against the Judgment of conviction dated 04.03.2025 and order of sentence dated 05.03.2025, passed by the learned Additional Sessions Judge – I, Latehar, in NDPS Case No.06 of 2016, arising out of Herhanj P.S. Case No.09 of 2016, whereby the appellants have been convicted for the offence under Section 17(b) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and have been sentenced to undergo rigorous imprisonment for eight years with fine of Rs.50,000/- each and in default of fine, the appellants shall further undergo rigorous imprisonment for one year.
The prosecution story, in short, is that on 02.05.2016 at about 11.30 A.M., when the informant, being S.I.-cum-Officer-in-Charge of Herhanj P.S., alongwith police force were on patrolling duty. While checking the vehicles, two persons riding a motorcycle arrived there and on seeing the police party, they started fleeing away but apprehended on chase by the police party and during search 2 kgs. opium, kept in a cloth bag, was recovered from seat of motorcycle. On enquiry, the accused persons disclosed that they purchased the opium from village Kekargarh in Panki Police Station area and they were going to sell the same in Chatra. The motorcycle bearing registration No.JH-19A-6945 was also seized alongwith the opium for which neither valid paper was produced nor explained about the authority/possession of aforesaid opium. Thereafter, seizure list was prepared and present accused persons were arrested in this case.
On the basis of self statement of the informant, Herhanj P.S. Case No.09 of 2016 dated 02.05.2016, corresponding to NDPS Case No.06 of 2016 has been registered against the appellants under Sections 8/ 17(b)/ 18 of the NDPS Act and the police, after completing the investigation, has submitted the charge-sheet and the trial court has framed charge under Sections 17(b) & 18 of the NDPS Act against the present appellants on 15.12.2016. Thereafter, the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried. Accordingly, the trial has commenced.
To substantiate the charges, the prosecution has examined altogether 06 witnesses and their depositions, in short, are as follows:-
P.W.-1, Sunil Kumar Pal, is Constable and a member of the Police Team. He has supported the prosecution story and proved the seizure list (Ext.-1). He has also seized the motorcycle bearing registration number JH-19A-6945. He has deposed that during investigation, the Investigating Officer has taken his statement.
In cross examination, he has admitted that the place of occurrence is a Jungle area and nobody was available there as public witness. Further, the bag containing opium was seized from Raju Sao, who was a pillion rider in the alleged motorcycle. The contraband narcotics was seized at the place of occurrence and weighed in the Police Station. The memo of arrest was prepared in the Police Station but he has not signed on the same.
P.W.-2, Subhash Kushwaha, is Constable and also a member of the Police Party and he has also reiterated as same as P.W.-1.
In cross examination, he has admitted that the Officer in- Charge of Police Station has told him that the seized item is opium. He has also admitted that no any Magistrate was present during the seizure. The seizure list was signed by witnesses and he has also signed upon it. He has further deposed that the Investigating Officer has recorded his statement in the Police Station. Further, there was no secret information with regard to the incident and on that day Bandh was called by the Maoist Organization. The seized opium was sealed in a packet but he has not marked his signature on the same.
P.W.-3, Yogendra Paswan, is Inspector of Police and also a member of Police Party. He has deposed in his examination in chief that on the day of occurrence Bandh was called by the Maoist Organization. During patrolling, he has caught the accused riding on the motorcycle and seized the narcotics materials contained in a green coloured bag. The seizure list was prepared and marked as Ext.-2. He has further deposed that his self statement was recorded at the place of occurrence and again also at the Police Station. Thereafter, the FIR has been instituted, marked as Ext-3.
In cross examination, he has admitted that he has not informed in which circumstances Mr. Manoj Kumar Choudhary has given the Charge of Investigating Officer as he was also a member of the said raiding team. He has further deposed that he has not remember the details of the alleged motorcycle. Further, the weight of the seized narcotics materials was based only upon assumption and it was sealed in the presence of another members of police team. He has also deposed that no any senior officer has arrived in the police station after the incident.
P.W.-4, Amrendra Kumar, is Sub- inspector of Police and also a member of the police team and he has also supported the prosecution case.
In his cross examination, he has admitted that the raiding team consisted other police personnel. Further, the Investigating Officer has inquired him about the occurrence. He has no information that the Officer in-charge has informed senior police officer about the incident or not. Further, no any senior officer has come to the place of occurrence. The seized article was sealed and weighed in the police station.
P.W.-5, Sanoj Kumar Choudhary, is Sub Inspector and informant of this case. He has deposed that after investigation he has lodged the FIR being Herhanj P.S. Case No. 06/2016 and recorded the seizure list and memo of arrest in the case diary. He has re-recorded the statement of the informant in the police station. He has recorded the statement of other witnesses. The memo of arrest has been prepared at the place of occurrence in which the witnesses as well as the accused have put their signatures. After seizure, the article was sent to the Forensic Science Laboratory for examination but the report has not been submitted during completion of the investigation. After completion of the investigation, he has submitted the charge sheet against two accused persons.
In cross examination, he has admitted the fact that nobody of nearby locality of the place of occurrence has turned as independent witness. The seized article was kept in the malkhana of the police station before producing in the Court. He has also admitted that no any Gazetted Officer was with the raiding team. Further, no any statement of witnesses has mentioned in the memorandum of arrest. In the clause-9 of the memo of arrest, it has been mentioned that no any article has seized from the person of the accused.
P.W.-6, Ramkhelawan Singh, is in-charge officer of Court’s Malkhana, and he has produced the material exhibit in a sealed condition before the Court having register no. 12/ 09.05.2016.
In cross examination, he has admitted that there is neither any seal nor any signature on the material exhibit. The material was in a solid condition but when it was brought before malkhana it was in semi liquid condition. The forwarding memo was numbered as 307 dated 03.05.2016 but in the malkhana register the date of deposition has been marked as 09.05.2016. There was no any endorsement of officer in the material exhibit.
P.W.-7, Umesh Prasad Mehta, is s also in-charge of Court Malkhana, and he has deposed in his chief examination that he has brought the material exhibit before the Court in a sealed condition in which NDPS 06/2016, Herhanj P.S. Case No.09/2016, Malkhana Register No.03/2016 has been mentioned. A paper seal has been pasted on the alleged packet in which signature of the then Principal District and Sessions Judge has been marked. The said packet was opened before the court in which a liquid substance was found.
In cross examination, he has admitted that he has not remember in which date the material exhibit has been brought before the malkhana. Further, there was no any signature on the same. There was also no any seal either of in-Charge of Malkhana Police Station or in-Charge of Police Station in the material exhibit. What is kept in the bag and its quantity has also not been mentioned in the said material exhibit.
The following documents have been exhibited on behalf of the prosecution, which are as under :-
Sl. Exhibit Number Description No.
1 Exhibit - 1 Signature of Sunil Kr. Pas on seizure list
2 Exhibit – 1/1 Signature of Subhash Kushwaha on seizure list
3 Exhibit - 2 Seizure list
4 Exhibit - 3 Entire F.I.R
5 Exhibit – 4 & 4/1 Memo of arrest of accused Raju Kumar Sao @ Rajauli and Nagina @ Nakul Yadav
6 Exhibit - 5 Entire F.S.L. report
Material Exhibits
1 Material Exhibit - I Entire case diary
2 Material Exhibit - II Sample of opium in plastic Dabba
3 Material Exhibit - III Sample of opium in plastic bag
On consideration of above materials on record, the trial Court has found the appellants guilty for the offence under Section 17(b) of the NDPS Act for possessing the narcotics of intermediary quantity and sentenced them, as stated above.
Being aggrieved by the aforesaid judgment of conviction, the appellants have preferred the present appeals.
Learned counsel for the appellants has assailed the judgment of conviction on the following grounds :-
all the witnesses are the police personnel although there was a village near by the place of occurrence so the independent witness could have been produced.
the seizure list has not been prepared at the place of occurrence, rather the seizure list is doubtful, as some of the witnesses have stated that the seizure list has been prepared at the place of occurrence, while others have stated that the weighing of the narcotics has been done at the police station.
so far as the manner of seizure is concerned, there is discrepancy, while some of the witnesses have stated that it was seized keeping on the motorcycle, while the appellants were not present with the motorcycle, rather they have escaped from there and after chasing, they have been apprehended around 300 meters away, while some of the witnesses have stated that the appellants have been arrested with the motorcycle. Thus, the manner of arrest and the seizure is also doubtful.
it has also been pointed out that the seized article has been sent to malkhana, where the entire register and process, as has been disclosed by the investigating officer in his examination, clearly suggests that some time line is not accounted for, which creates doubt, regarding the material seized and produced before the court.
it has also been pointed out that the ownership of the motorcycle has not been ascertained, rather no admissible evidence has been brought on record regarding the ownership of the vehicle (motorcycle).
On above basis, learned counsel for the appellants has assailed the judgment of conviction.
Alternatively, it has been argued by the learned counsel for the appellants that it is the first offence and the appellants are young boys and they have remained in custody for about one year and six months and there is a mitigating circumstances also, so the sentencing part may be reduced to the period already undergone by them. It has further been submitted that the case is of the year 2016 and they have suffered a lot by facing the trial and no previous conviction has been brought on record by the prosecution.
At this stage, learned counsel for the appellants has also drawn attention of this Court to Section 32-B of the NDPS Act, and has submitted that no aggravating circumstances has been brought on record and as such, awarding sentence of eight years is unwarranted.
On the other hand, learned counsel for the State has supported the judgment of conviction pointing out that :-
all the witnesses are consistent regarding the recovery of narcotics from these two appellants while they were riding motorcycle and it was contained in a jhola (bag) and they were consistent regarding the identification of jhola also.
the recovered article is narcotics and that has been proved by the F.S.L Report also. The seizure list also contains the signature of the appellants.
Since the search and seizure has been made in a routine manner while the police personnel were in patrolling duty due to the band called by the Maoist group. They were not in search of any narcotics, rather the recovery of narcotics was sudden in course of the routine check and even then, the required due process of law has been followed. Thus, the recovery of narcotics and the recovered article is narcotics, stand proved and as such, the judgment of conviction is justified. Since the recovered narcotics was around 2 kgs. which is just below the commercial quantity and as such the punishment of 8 years is proportionate to the quantity of recovered narcotics.
Having heard learned counsel for the parties and from perusal of record, this Court finds that :-
the police personnel were on routine patrolling duty to maintain the law and order, as there was a call of band by the Maoist group and in that process, they were searching the vehicles and in that course, these two appellants have been apprehended along with motorcycle and 2 kgs. of contraband materials, which has been proved as narcotics by the F.S.L.
all the witnesses are consistent that the narcotics was kept in a jhola and both these appellants were present at or around the place of occurrence and merely by saying that whether it was on motorcycle or away from the motorcycle is not a discrepancy. The discrepancy as to whether they were riding the motorcycle or they were escaping from the place of occurrence is not relevant. The relevant is that they have been apprehended from the place of occurrence with a jhola in which some material was kept, which has been proved to be narcotics by the F.S.L.
so far as the ownership of the motorcycle is concerned, the possession is not related with the ownership, it is regarding control over the premises or vehicle. The jhola and the vehicle were in control of the appellants, as per the evidence available on record, and as such, the ownership of the motorcycle is immaterial, so far as recording of the finding regarding the possession of motorcycle and narcotics are concerned.
the narcotics has not been seized from the person of the accused and as such, the requirement of presence of the Magistrate is not required and also the fact that the police personnel were not in search of narcotics, rather they were in routine checking and in that process they have recovered the narcotics and as such, the weighing machine and other things were not available with them and as such the seizure has been made and weighing has been done at the police station. The sampling has been done by the process of the court and the F.S.L Report clearly suggests that the seized article is narcotics.
Thus, in my opinion there is sufficient material and the trial court has rightly recorded the finding of conviction of the appellants under Sections 17(b) of the NDPS Act, holding that the appellants were apprehended with the narcotics of intermediary quantity.
Accordingly, this Court finds that the judgment of conviction, recorded by the trial court, is based upon the materials available on record, rather the materials available on record are sufficient to record such findings. So far as sentencing part is concerned, no aggravating circumstances has been brought on record and reference can also be made to Section 30-B of the NDPS Act.
Considering the above facts and the fact that the appellants are the young boys, the conviction of the appellants is, hereby, upheld and the sentencing part is reduced from eight years to three years and the fine amount shall remain as it is.
With above modification in the sentencing part, the present criminal appeals stand disposed of.
The appellant namely, Raj Kumar Sao @ Raj Kumar @ Rajauli @ Raju Kumar, is in custody, while the appellant namely, Nagina @ Nakul Yadav, is on bail, hence his bail bond is hereby cancelled.
The trial court is directed to take all coercive steps for apprehending the appellant namely, Nagina @ Nakul Yadav and committing him to the jail custody for serving out rest of the sentence.
Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.