TMI Blog2016 (11) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... rration of recovery of Charas from a bag possessed by appellant Pratibha Devi become duly afflicted. On account of non-compliance of the mandatory provisions of law, the prosecution case is found adequately dented. As a result of which, judgment of conviction and sentence dated 11.6.2014 and 16.6.2014, passed in Sonepur (Hajipur) Rail Police Station Case No. 1 of 2010/GR Case No. 11 of 2010, by Sri Brajendra Kumar Tewari, Special Judge, N.D.P.S. Act, Vaishali at Hajipur) would not survive. Appeal allowed. - Cr. Appeal (DB) Nos. 521 and 721 of 2014 - - - Dated:- 17-11-2016 - Samarendra Pratap Singh and Aditya Kumar Trivedi For the Appellant/Petitioner/Plaintiff: Yogesh Chandra Verma For the Respondents/Defendant: Abhimanyu Sharma JUDGMENT Aditya Kumar Trivedi, J. 1. Cr. Appeal (DB) No. 521 of 2014 wherein Pratibha Devi is the appellant and Cr. Appeal (DB) No. 721 of 2014 wherein Md. Anamul Haque is the appellant, commonly originate against the judgment of conviction dated 11.6.2014, whereby and whereunder both the appellants have been found guilty for an offence punishable under Sections 20(b) (c) of the N.D.P.S. Act and further appellant Md. Anamul Haque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing these two appellants guilty for the offences as indicated above, acquitted co-accused Ranjan Kumar. Hence this appeal. 3. The defence case as is evident from the mode of cross-examination as well as statement having been recorded under Section 313 of the Cr.P.C. is of complete denial as well as of false and malicious prosecution. However, neither any DW nor any kind of document has been exhibited on behalf of the accused. 4. While assailing the judgment of conviction and sentence, the learned counsel for both the appellants have conjointly submitted that the prosecution case is found full of infirmities on account thereof, the judgment impugned did not justify its prevalence. To substantiate the same, it has been submitted that perusal of the evidence of the PWs., it is apparent that mandatory provisions, so prescribed under the N.D.P.S. Act, have not been complied with and that being so, apart from having deficiency in the oral as well as documentary evidence, the judgment would not sustain. 5. Now coming to the evidence, it has been submitted that all the material, independent witnesses have not supported the case of the prosecution whereupon they were declared hosti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is concerned, it is evident that search and seizure as alleged happens to be from public place, being Platform of Hajipur Railway Station, and on account thereof, there would be application of Section 43 of the Act. In Directorate, Revenue and Another vs. Mohammad Nisar Holia, reported in (2008) 2 SCC 370, the Hon'ble Apex Court minutely distinguished, discussed and explained niceties relating to Sections 41, 42 and 43 of the N.D.P.S. Act, and held as follows:-- 14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with persons and not places. 9. Now coming to the facts of the case in consonance with the activity of the prosecution having taken up during course of investigation, it is evident that on account of arrest/seizure of narcotic substance over Platform No. 1, being identified as public place attracting Section 43 of the N.D.P.S. Act would, for a moment would render nugatory applicability of Section 42(2) of the N.D.P.S. Act but the aforesaid relaxation would not spare the prosecution to act in terms of another mandatory provision so envisaged under Section 57 of the N.D.P.S. Act whereunder the prosecution is under obligation, particularly the informant, to inform his immediate superior official with regard to arrest/seizure. From the written report, it is evident that the informant along with Inspector, RPF, Akhilesh Singh (PW-2) led the raiding team, on account thereof, an intimation with regard to apprehension of culprits along with Charas would have been given immediately to superior officer by PW-2, which provision has not been satisfied. Thus from the consistent evidence of PW-2 himself along with informant PW-3, it is evident that they utterly failed to inform superior of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged seized articles, they have had put their seal, nor PW-15, I.O., had stated with regard to his activities after production of alleged seized Charas. He happens to be so sterile towards his duty that he even failed to disclose how samples were prepared and further, whether the same was sent to FSL after obtaining permission from Special Judge. 14. Apart from this, from Exhibit-5, the FSL report, it is evident that the sample was sent through Havildar Shvji Yadav under Memo No. 542 of 2010 dated 3.2.2010 which was received in the office of the Director, FSL, Patna on 16.2.2010. None of the prosecution witness including PW-15, the I.O., though not been cross-examined at the hand of the appellants, however failed to divulge the reason behind the delay and perhaps during intermediary period, the sample was in whole possession. In the background of the aforesaid activity of the prosecution, the delay as is duly exposed is found prejudicial to the interest of the prosecution. 15. On account of lapses on the part of the prosecution due to which the whole activity of the prosecution fallen under shroud, whereupon it lost its reliability. 16. In order to substantiate its cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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