(1.) Criminal Appeal (DB) No.1139 of 2016 has been filed by accused no.3 Md. Khalik, Criminal Appeal (DB) No.1147 of 2016 has been filed by accused no.2 Md. Furkan whereas Criminal Appeal (DB) No.1060 of 2016 has been filed by accused no.1 Md. Jamir Alam Ali. By these appeals, they are challenging the Judgment and Order dtd. 15/9/2016 and 21/9/2016 respectively passed by the learned Additional Sessions Judge-VII, Patna, in Special Case No.15 of 2014 thereby convicting them of offences punishable under Ss. 21(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act"). On first two counts, they all are separately sentenced to suffer rigorous imprisonment for 12 years by each of them apart from payment of fine of Rs.1,00,000.00 and in default, to undergo three years of default sentence by each of them. On third count, i.e., for the offence punishable under Sec. 29 of the N.D.P.S. Act, they all are sentenced to suffer rigorous imprisonment for 5 years. Substantive sentences are directed to run concurrently by the learned trial court. As all these appeals are arising out of the same Judgment and Order, they are being decided by this common Judgment. For the sake of convenience, the appellants/ convicted accused shall be referred to in their original capacity as "an accused".
(2.) Facts leading to the prosecution of the accused persons can be summarized thus:
(a). P.W.4 Anubhav Kumar, Intelligence Officer, Directorate of Revenue Intelligence, Regional Unit, Patna (hereinafter referred to as the "D.R.I.") had filed a complaint alleging commission of offences punishable under Ss. 21(c), 27(A) and 29 of the N.D.P.S. Act, 1985 against the appellants/accused no.1, Md. Jamir, appellant/accused no.2 Md. Furkan and appellant/accused no.3 Md. Khalik. Accused no.4 Md. Kadeer, accused no.5 Haji Kayyum, accused no.6 Haji Mujib Pinda, accused no.7 Md. Siraj and accused no.8 Md. Izhar were also arraigned as absconding accused in the said complaint with an averment that these accused nos.4 to 8 were found absconding from their homes. Penal Ss. of the N.D.P.S. Act invoked against the accused persons can be seen from paragraphs-17 and 18 of the said complaint which led to the registration of Special Case No.15 of 2014 and those paragraphs reads thus:
"17. That Md. Jamir Alam Ali, Md. Furkan and Md. Khalik were caught red handed while in possession of the packets containing Heroin and have admitted their conscious individual involvement in this act of smuggling or Heroin in lure of money. All the three accused, found in possession of of the packet containing such huge quantity of Heroin, appear consciously involved in the abatement, sale/purchase, carriage/transportation and possession of Heroin, and thus are liable to punishment under sec. 21(C) and 29 of the NDPS Act 1985.
18. That Md. Kadeer, Haji Kayyum, Haji Mujib Pinda,, Md. Siraj and Md. Izhar are absconding and have avoided their appearance before the investigating officer. Though, all of them have submitted in writing that they are innocent and responsible citizens, the way they are absconding from their homes and the statement tendered by Jamir, Furkan, Khalik and his wife indicates that they are involved in this smuggling of Heroin. Khalik has stated that Kadeer, Haji Kayyum, Haji Mujib Pinda, Siraj and Izhar are equal partners and financier and used to take delivery of Heroin. This was also confirmed by Jamir and Smt Ruksar Bano, wife of Khalik in their statement. Furkan too was aware that the Heroin being carried by him was destined to Kadeer. Md. Izhar is village Head and in spite of that he was absent when the follow-up was conducted at his residence on 7/5/2014 and again on 22/7/2014. This shows that Md. Kadeer, Haji Kayyum, Haji Mujib Pinda, Md. Siraj and Md. Izhar are financiers and partners in this smuggling of Heroin and thus appears liable to punishment under sec. 27A and sec. 29 of the Act for committing offence in violation of sec. 8(C) of the said Act."
Thus, so far as the accused nos.1 to 3, who were in appearance before the learned trial court are concerned, allegations are to the effect that they were found to be in conscious possession of Heroin which is an Opium derivative, a manufactured drug and were involved in its sell, purchase, transport, import and export inter State so also in abatement to commit the offence punishable under the N.D.P.S. Act. As against the absconding accused allegations, as seen from the complaint, are to the effect that they were financers and partners in smuggling of the Heroin so also in abetting the commission of such offence of smuggling and finance.
(b). Now, let us advert to the facts which led to filing of this complaint by P.W.4 Anubhav Kumar, the Intelligence Officer. According to the prosecution case, on 20/2/2014, P.W.5 Aditya Ranjan, the Intelligence Officer of the D.R.I. Patna, had received specific intelligence (Ext.32) from the Deputy Director, D.R.I., Lucknow, to the effect that accused no.1 Jamir and accused no.2 Furkan have brought two kilograms of Heroin from Manipur and the same will be handed over to accused no.3 Khalik on instructions of Md. Kadeer (absconding accused no.4). P.W.5 Aditya Ranjan had reduced that information in writing (Ext.32) and produced the same before his immediate Official Superior, i.e., the Deputy Director, D.R.I., Patna, who directed P.W.5 Aditya Ranjan to form a team and take action in the matter (Ext.32A). That is how, a team comprising of P.W.1 Dhirendra Kumar Singh, Intelligence Officer, P.W.2 Pradip Kumar Pandey, Intelligence Officer, and P.W.3 Yogeshwar Nath Tiwary, Intelligence Officer, as well as others came to be formed by P.W.5 Aditya Ranjan.
(c). That team of the D.R.I., Patna, then rushed to the Hotel Ashirward, Station Road, Patna, at about 17 hours (05.00 P.M.) on 20/2/2014 itself. Employees Arvind Kumar and Sudhir Kumar (not examined as witnesses) of that hotel were found present at the reception counter and they had agreed to act as Punch witnesses to the proceedings of the search and seizure. Taking them, the team of the D.R.I. went to the Room No.101 of Ashirwad Hotel, the door of which was found open. Accused no.1 Md. Jamir, accused no.2 Md. Furkan and accused no.3 Md. Khalik were found sitting on the bed of that room and each one of them was holding a brown polythene packet in their hand. P.W.5 Aditya Ranjan then, in compliance of Sec. 50 of the N.D.P.S. Act gave written options (Exts.8 to 10) to those accused persons for getting themselves searched in presence of the Gazetted Officer or the nearest Magistrate. All accused persons agreed in writing that they be searched by P.W.5 Aditya Ranjan, Intelligence Officer. Personal search of accused no.1 Md. Jamir, accused no.2 Md. Furkan and accused no.3 Md. Khalik was taken by P.W.5 Aditya Ranjan. The contents of the packets held by them (which were respectively marked as 'A', 'B' and 'C') was tested positive for Heroin. Accused were found to be possessing sundry articles such as blank cheque, Debit-card, driving licence, mobile phones etc.
(d). As accused persons had requested the Officers of the D.R.I. to take them to some safe place for further proceedings, they all along with independent witnesses were taken to the office of the D.R.I., Patna, for safety and security reasons. Weightment of packets which were marked as 'A', 'B' and 'C' respectively found in possession of accused no.1 Md. Jamir, accused no.2 Md. Furkan and accused no.3 Md. Khalik was done. Gross weight of packet 'A' was found 615 grams, that of packet 'B' was found 613 grams and that of packet 'C' was found to be 615 grams, totaling 1.843 kilograms. Two samples each weighing 5 grams were drawn from the contents of packets marked as 'A', 'B' and 'C'. Those samples were kept in polythene pouches and marked as 'A-1', 'A-2', 'B-1', 'B-2', 'C-1' and 'C-2'. The samples were sealed with plastic adhesive tapes. Those packets were then kept in three envelopes marked as 'A-1 A-2', 'B-1 B-2', 'C-1 C-2'. Those envelopes were sealed. Packets 'A', 'B' and 'C' containing residual substance came to be sealed with adhesive tapes and those packets were separately kept in three envelopes, which were marked as 'A', 'B' and 'C'. The envelopes containing the residual substance came to be sealed.
(e). P.W.5 Aditya Ranjan then recorded the confessional statements Exts.13, 14 and 15 of all three accused by resorting the provisions of Sec. 67 of the N.D.P.S. Act, separately. As per those confessional statements, accused no.1 Md. Jamir made a deal with absconding accused Md. Kadeer to supply 1.8 kilograms of Heroin. Accused No.1 Jamir was informed by absconding accused Kadeer that accused no.3 Khalik will come to take delivery of Heroin. Accused no.1 Jamir asked accused no.2 Furkan to bring that consignment of Heroin procured by absconding accused Kadeer to Patna. That is how, accused no.2 Furkan brought Heroin to Patna on on 20/2/2014. Absconding accused Kadeer told accused no.3 Khalik to go to Patna and meet accused no.1 Jamir. Then all three accused persons, namely, accused no.1 Jamir, accused no.2 Furkan and accused no.3 Khalik met at Patna on 20/2/2014. They then went to Railway Station at Patna, booked a ticket for accused no.3 Khalik for Sultanpur. From there, they returned to Ashirwad Hotel, Patna. When accused no.1 Jamir and accused no.2 Furkan were in the process of handing over the Heroin to accused no.3 Khalik, they were caught by the team of the D.R.I. Patna. This is what the gist of the confessional statement of the accused persons is.
(f). Thereafter, P.W.5 Aditya Ranjan had seized the contraband at about 11.15 P.M. of 20/2/2014 vide Seizure Memo (Ext.4). On 21/2/2014, he sent report (Ext. 34) under Sec. 57 of the N.D.P.S. Act of arrest and seizure to the Deputy Director, D.R.I., Patna. On 20/2/2014 vide communication at Ext.11, P.W.5 Aditya Ranjan, Intelligence Officer, sent the samples marked as 'A-1', 'B-1' and 'C-1' to the Chemical Analyzer of the Joint Director Chemical Laboratory, Kolkata, through the Special Messanger. The Chemical Analyzer vide his report (Ext.12) dtd. 8/8/2014 confirmed the fact that the three samples which were in the form of brown colour powder tested positive for presence of Heroin, Morphine, 6- Monoacetyl Morphine and Codeiane. P.W.5 Aditya Ranjan then sent a request letter (Ex.29) for certifying the inventory. Accordingly, on 26/3/2014, Sri Upendra Kumar, the learned Judicial Magistrate certified the inventory as per the provisions of Sec. 52-A of the N.D.P.S. Act by recording that packets marked as 'A', 'B' and 'C' were respectively weighing 605 grams, 603 grams and 605 grams totaling to 1.813 kilograms (gross weight). The learned Judicial Magistrate then drew two samples from each packet which were marked as 'A', 'B' and 'C'. Those two samples drawn by him were marked as 'A-3', 'A-4', 'B-3', 'B-4'and 'C-3' 'C-4'. Samples, the packets of which were marked as 'A-3', 'B-3' and 'C-3' by the learned Judicial Magistrate, First Class, were handed over by him to the Inspector of Godown, Customs, whereas the samples, which were marked as 'A-4', 'B-4' and 'C-4' from the respective packets, were kept by the learned Judicial Magistrate, First Class, for producing the same before the learned Special Court, Patna. The learned Judicial Magistrate, First Class, then issued the necessary certificate (Ext.30) certifying the inventory.
(g). It is averred in the complaint filed by P.W.5 Aditya Ranjan that steps were taken for securing the presence of accused nos.4 to 8 by issuing summons and by visiting their residence. However, none of them were found present in their residence.
(h). That is how, P.W.5 Aditya Ranjan had filed the complaint and by taking cognizance of the alleged offence, the learned trial court had framed the charge for the offences punishable under Sec. 21(c), 27A and 29 of the N.D.P.S. Act against all three accused persons, who were before it.
(i). In order to bring home the guilt to the accused, the prosecution has examined in all five witnesses. Those are: (A).P.W.1 Dhirendra Kumar Singh- Intelligence Officer and Member of the raiding party.
(B). P.W.2 Pradip Kumar Pandey- Intelligence Officer and Member of the raiding party.
(C).P.W.3 Yogeshwar Nath Tiwary-Intelligence Officer and Member of the raiding party.
(D). P.W.4 Anubhav Kumar-the Intelligence Officer, who investigated the crime subsequent to the raid.
(E).P.W.5 Aditya Ranjan-The Complainant/ Intelligence Officer and the Investigating Officer who conducted raid and effected seizure.
(j). In addition to oral evidence of official witnesses, the prosecution has placed reliance on the documentary evidence in the form of following documents:
Sl. Exhibit(s) No. and Description
1. 3 Panchnama of events at Ashirwad Hotel and the office of the D.R.I. leading to seizure of packets containing Heroin marked as 'A' 'B' and 'C' as well as pockets of samples drawn and marked 'A-1 A-2', 'B-1 B-2' 'C-1, C-2' so also the sundry articles from the accused persons.
2. 4 Seizure Memo of three packets marked 'A' , 'B' and 'C' allegedly containing Heroin by P.W.5 Aditya Ranjan.
3. 5, 6 and 7 Arrest Memos of accused persons.
4. 8 to 10 Option given to accused persons in writing about search by the Gazetted Officer or the nearing Magistrate in pursuant to Sec. 50 of the N.D.P.S. Act.
5. 11 Requisition to the Chemical Analyzer for testing contents of samples 'A-1', 'B-1', 'C-1' for detection of Heroin.
6. 12 Report of chemical analysis of samples 'A-1', 'B-1''C-1' mentioning presence of Heroin, Morphine, 6-Monoacetyl Morphine and Codeiance.
7. 13 Statement of accused Md. Jamir under Sec. 67 of the N.D.P.S. Act.
8. 14 Statement of accused Md. Furkan under Sec. 67 of the N.D.P.S. Act.
9. 15 Statement of accused Md. Khalik under Sec. 67 of the N.D.P.S. Act.
10. 16 to 20 Sundry documents seized from accused persons such as Railway Ticket, Blank Cheques and Chits.
11. 29 Request Letter by P.W.5 Aditya Ranjan to the Sessions Court, Patna, for certifying the inventory.
12. 30 Certification of inventory by the learned Judicial Magistrate, Patna.
13. 32, 32A Forwarding of the recorded secret information regarding Heroin by P.W.5 Aditya Ranjan, the Intelligence Officer, to the Deputy Director of the D.R.I. and order of the said Superior Authority for formation of the team for raid.
14. 34 Report under Sec. 57 of the N.D.P.S. Act regarding seizure of 1.843 Kilograms of Heroin by P.W.5 Aditya Ranjan to the Deputy Director, D.R.I.
15. 33 Inventory of seized goods-Heroin.
16. 31, 31/1, Envelopes containing samples 'A-4' 'B-4' 'C-
31/2 4' of seized Heroin drawn by the learned Judicial Magistrate. (k). The defence of the accused persons was that of total denial. They contented that they are falsely implicated in the subject crime. Accused no.1 Jamir alleged that he had quarreled with the Officers of the D.R.I. and, therefore, he is falsely implicated in the subject crime.
(l). After hearing the parties, by the impugned Judgment and Order, the learned trial court was pleased to convict the accused persons and to sentence them as indicated in the opening paragraphs of this Judgment.
(3.) We heard the learned counsel appearing for the appellants at sufficient length of time. He argued that though two Panches, namely, Arvind Kumar and Sudhir Kumar had allegedly witnessed the search and seizure of Heroin, the prosecution has not examined them and the case of the prosecution is based on interested testimony of the official witnesses. It is further argued that the seized contraband was not produced in the trial court and, therefore, the case of the prosecution is rendered suspect. To buttress, this submission, reliance is placed on the Judgment dated 28th and 29/9/2017 passed in Criminal Appeal No.708 of 2010 Premsingh Hijarilal Jaiswal V/s. The State of Maharashtra by the Bombay High Court. It was further argued that even the samples drawn by the learned Judicial Magistrate were not produced in the court. The learned counsel for the appellants vehemently argued that there is total non compliance of provisions of Sec. 313 of the Code of Criminal Procedure. The questions which ought to have been put to the accused for seeking their explanation for basing the conviction on the evidence adduced by the prosecution were not put to them and thereby the entire trial is vitiated. It is submitted that as the relevant circumstances were not put to the accused persons those are required to be kept out of consideration and if it is done so, then no evidence remains against the accused persons. To buttress this submission, reliance is also placed on the Judgment of the Division Bench of this Court in the matter of Jagat Prasad Vs. The State of Bihar and Anr., reported in 2022(1) PLJR 568.;