TaxTMI 
TaxTMI 
2016 (11) TMI 1505
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....aining to Rs. 1.5 lacs, in default thereof to undergo rigorous imprisonment for one year additionally, with a further direction to run the sentences concurrently along with setting of the period of the detention since before in terms of Section 428 of the Cr.P.C. vide order dated 16.6.2014 relating to Sonepur (Hajipur) Police Station Case No. 1 of 2010 by the Special judge, N.D.P.S. Act, Vaishali at Hajipur, on account thereof, have been heard together and are being decided by a common judgment. Ramesh Singh (PW-3), S.I. of the R.P.F., on getting confidential information with regard to transportation of narcotic drugs illegally, he along with Akhilesh Singh (PW-2), Santosh Kumar Singh (PW-7), constable Ranjit Kumar Singh (PW-8), after informing the Inspector, R.P.F., Hajipur, Akhilesh Singh (PW-2) came at Hajipur Railway Station where he met with informer who pointed out one lady and two gents who, at that very moment, were sitting at Platform No. 1 beneath a Peepal tree. Accordingly, they began to keep watch over them. As soon as the lady got up and lifted a bag along with her associates, they were apprehended and queried. During course thereof, they did not disclose correctly and....
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....s the I.O. PW-15. Furthermore, the inconsistency prevailing amongst these PWs adversely affect the reliability of remaining evidences whereupon, it could be safely drawn that the prosecution has failed to substantiate its case. That being so, the judgment of conviction and sentence, as recorded by the learned lower court, is found fit to be annulled. 6. The learned A.P.P. refuting the submissions having made on behalf of appellants has submitted that from the judgment impugned it is apparent that the learned lower court had minutely analyzed the evidence adduced on behalf of prosecution whereupon the judgment impugned need not attract any sort of interference. It has further been submitted that recovery of Charas from the possession of appellant Pratibha Devi is conclusively proved. Any kind of lapse at the end of officials on account of noncompliance of relevant provisions of Act will not vitiate the finding. Hence, the submissions having been made at the end of appellants have not been dealt at all. 7. So far trial under the N.D.P.S. Act is concerned, as stringent punishment is found thereunder coupled with presumption against the accused whereupon, consistently it has been....
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....nce. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or housekeeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated differen....
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....s well as PW-3 are silent on that very score. They have not even deposed that sampling was made by them at the spot in presence of seizure list witnesses and during said course, the signature/LTI of the respective accused were taken. For better appreciation, clause 1.5 of Standing Order No. 1 of 88 is quoted hereinbelow:-- "1.5. Place and time of drawal of sample.--Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot." 11. Thus, as stated above PW-2 as well as PW-3 failed to discharge their due duty in complying with the directions issued under Circular No. 1/88, and on account thereof, the narration of recovery of Charas from a bag possessed by appellant Pratibha Devi become duly afflicted. 12. PW 15, I.O., during course of his evidence had not spoken that as soon as the articles produced before him, sample was taken out with proper sealing. Virtually, he had not spoken a single word with regard to his activity....
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....icles he found the same to be Charas. Now coming to the remaining witnesses, it is evident that PW-1 Raj Kumar, PW-2 Akhilesh Singh, PW-3 Ramesh Singh, PW-7 Santosh Kumar Singh and PW-8 Ranjit Kumar Singh were the members of the raiding party. Having deposed that on apprehension from a bag possessed by accused Pratibha Devi, 10 packets of Charas, each weighing 500 grams totaling 5 kilograms were seized, but as stated above, they have not spoken with regard to preparation of sample at the spot with regard to compliance of mandatory provisions of law. 17. PW-16 is Narad Ram who brought the material exhibit and had deposed that as per direction he had brought up this case property from Malkhana and those articles have been made an exhibit. He has further identified the seized property to be the case property on the basis of the chit having affixed thereupon which, during the course of cross-examination at paragraph 4 has been demolished as, he has stated that the aforesaid chit was affixed in court during course of exhibit. 18. Considering the evidence in its totality in consonance with the deficiency persisting on the record, we are of the view that on account of non-compliance....