High Court · 2012

However, having found the present appellants guilty of the offence, whic 7. h they had been charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their convict ion and the sentence passed against them, the three appellants have preferred th ese appeals.

8. While considering the present appeals, it needs to be noted that accordi ng to the evidence of PW1, who, admittedly, was functioning as PSO of the then S uperintendent of Police, Darrang, Mangaldoi, on 18.02.2005, he accompanied Super intendent of Police, Darrang, to a meeting of Assam Sahitya Sabha, because the S uperintendent of Police wanted to oversee the arrangement regarding law and orde r and, on that day, a procession was taken out by the said Sabha and while the p rocession was moving, movement of the vehicles, coming from the direction of Man galdoi, was stopped and, at that point of time, a TATA Sumo vehicle, bearing Reg istration No.AS-30-1794, tried to move ahead in defiance of the order and when t he Superintendent of Police, Darrang, (PW7), ordered the vehicle to be stopped, the occupants of the vehicle said that it was a police vehicle, whereupon Superi ntendent of Police, Darrang, (PW7), asked the identity cards of the occupants an d the occupants of the vehicle reacted by saying as to why identity cards were b eing required. Thereafter, according to the evidence of PW1, the police personne l asked the occupants to get off the vehicle, but the occupants refused and, the n, the door of the vehicle was opened in order to find out as to what was there inside the vehicle, but as soon as the door was opened, smell of Ganja came out. PW1 has asserted that he saw some packets, covered by polythene inside the vehi cle, and, eventually, 47 packets of Ganja were found inside the vehicle along wi th some articles. It is in the evidence of PW1 that Superintendent of Police, Da rrang, (PW7), then, summoned Officer-in-Charge, Sipajhar Police Station, over wi reless and handed over the accused persons to him. 9. Though PW1 was cross-examined by the defence, nothing could be elicited to show that his evidence was untrue or false. Except denying the fact that the four accused-persons were the ones, who had been apprehended from the said TATA Sumo, there was no denial of the material aspects of the evidence of PW1. Thus, the evidence of PW1 remained wholly unshaken and intact on all material aspects. 10. Close on the heels of the evidence of PW1, PW2, who is a constable, has deposed that on 18.02.2005, when he was on duty at Sipajhar Narikali Mandir, he saw a TATA Sumo, at about 11.30 am, with four occupants coming towards Mangaldoi at a high speed, the registration number of the vehicle being AS-30-1794 and th e vehicle bore the sign of Police and one of the occupants was wearing the unifo rm of DSP, one occupant was in the uniform of Havildar, while the remaining two were wearing uniforms of constables, the driver of the vehicle being claded in c onstable’s uniform. PW2 has deposed that a procession of Assam Sahitya Sabha was in progress and the police personnel were stopping the vehicles, because of the procession and though they asked the said TATA Sumo vehicle to stop, the said v ehicle did not stop and, at that time, Superintendent of Police, Darrang, (PW7), arrived there and, at first, they asked the occupants of the vehicle to get out from the vehicle and when they did not carry out the order, Superintendent of P olice, Darrang, (PW7) himself asked them to come down and when the occupants, ac cording to the evidence of PW2, did not comply with the direction given by the S uperintendent of Police, Darrang, (PW7), the police personnel forcibly opened th e door of the vehicle and smell of Ganja emanated from inside the vehicle, where upon Superintendent of Police, Darrang, (PW7) summoned the Officer-in-Charge, Si pajhar Police Station, and handed over the vehicle along with the occupants to h im. PW2 has further deposed that with regard to the said occurrence, he lodged a n Ejahar on 20.02.2002, Ext.1 being the said Ejahar. 11. Explaining the delay in lodging the Ejahar, PW2 has deposed that since h e had been busy, on duty, in connection with Assam Sahitya Sabha, he could not p romptly lodge the Ejahar. Strangely enough, the defence, while cross-examining P W2, did not dispute any part of his evidence. The evidence of PW2, thus, remaine d wholly intact and unimpeached. 12. Broadly in tune with the evidence of PW1 and PW2, PW3 has deposed that o n 18.02.2005, he was functioning as driver of Superintendent of Police, Darrang, (PW7), and he had driven Superintendent of Police, Darrang, (PW7), to the venue of Sipajhar Sahitya Sabha and when they were waiting on the road near Narikoli temple, a TATA Sumo vehicle, bearing Registration No.AS-30-1794, came from the d irection of Mangaldoi. Upon the vehicle, POLICE was written and the occupants we re in police uniform, one of the occupants having three stars on his shoulder sh owing that he was of the rank of DSP and the rest were in khakis. It is in the e vidence of PW3 that the said TATA Sumo was stopped and the occupants were asked to show their identity cards, whereupon the person, in the uniform of DSP, intro duced himself as DSP and asked as to why identity card was required. It is also in the evidence of PW3 that the Superintendent of Police, Darrang, (PW7), forcib ly opened the door of the vehicle and smell of Ganja came from inside the vehicl e. PW3 has also deposed that Superintendent of Police, Darrang, (PW7), then, cal led the Officer-in-Charge, Sipajhar Police Station, on wireless. 13. Even during cross-examination of PW3, nothing material could be elicited by the defence to show that what he had deposed was false or untrue. In fact, i n his cross-examination, PW3 has asserted that three persons, who were present i n the dock at the trial, were among the four persons present in the said vehicle on the day of the occurrence. Having, thus, not been shaken, in any manner, the evidence of PW3, the evidence of PW3 has to be treated as reliable.

14. Thus, a combined reading of the evidence of PW1, PW2 and PW3, who are al l police personnel, clearly demonstrate that on 18.02.2005, when procession of t he said Sabha was in progress near Narikoli temple, a TATA Sumo, as described ab ove, came from the direction of Mangaldoi and on the top of the said vehicle, PO LICE was written and, as all vehicles coming from the direction of Mangaldoi, we re being stopped, the said TATA Sumo was also asked by police personnel to stop. One of the occupants of the said TATA Sumo was in the uniform of DSP, one was i n the uniform of Havildar and the remaining two were in the uniforms of constabl e. On their failure to produce identity cards, when the door of the vehicle was opened, smell of Ganja emanated from inside the vehicle, which contained as many as 47 packets of Ganja covered by polythene.

15. In the light of what have been pointed out above, when the evidence of P W4, PW5 and PW9, who have been examined by the prosecution as witnesses to the a lleged seizure of the said 47 packets of Ganja, is examined, it transpires that the evidence of none of these witnesses show that seizure was made in presence o f these three witnesses. Notwithstanding, however, the fact that PW4, PW5 and PW 9, who are unofficial and independent witnesses do not corroborate the evidence of PW1, PW2 and PW3, the fact remains that the evidence of PW1, PW2 and PW3 havi ng remained, for the reasons already discussed above, unshaken, their evidence c annot be discarded or disbelieved merely because seizure was not made, according to the evidence of PW4, PW5 and PW9, in their presence.

16. The above discussion of the evidence on record brings us to the evidence of PW7, who was, at the relevant point of time, Superintendent of Police, Darra ng. His evidence is that on 18.02.2005, he, along with his staff, went to Nariko li to oversee the welcoming of the new President of Assam Sahitya Sabha and as a procession was in progress, vehicles, coming from the direction of Mangaldoi, w ere stopped and among the vehicles, which were so stopped, there was a TATA Sumo , which bore the monogram of POLICE. One of the occupants of the vehicle, accord ing to the evidence of PW7, was in DSP’s uniform, one was wearing the uniform of Havildar and the rest two occupants were in the uniform of constable. Suspectin g the real identity of the occupants, PW7 asked for their identity cards, but th e occupants of the vehicle objected by saying as to why identity cards were requ ired. It is in the evidence of PW7 that the occupants were, then, asked to disem bark from the vehicle and, eventually, 47 packets of Ganja were recovered from t he vehicle. 17. During cross-examination, PW7 has asserted that the accused tried to esc ape with the vehicle, but they could not flee away, because of the procession. T his assertion of PW7 went wholly unchallenged by the defence. Thus, the evidence of PW7 lends further credence to the evidence of PW1, PW2 and PW3.

18. When we turn to the evidence of Investigating Officer (PW10), who was, a t the relevant point of time, Officer-in-Charge, Sipajhar Police Station, we not ice that according to his evidence, on 18.02.2005, he seized one TATA Sumo vehic le, bearing Registration No.AS-30-1794, with 47 packets of Ganja wrapped by poly thene weighing about 4 quintal 45 KG, one Khaki colour jacket including badge of DSP of RPF, four numbers of Cap, four khaki colour shirts, four longpants (i.e. , trousers), one red belt, three khaki colour jersey, one attachØ, one red colou r CI sheet plate, where the word POLICE was written, along with the four accused , who were occupants of the said vehicle. 19. What is important to note, in the evidence of Investigating Officer, is that he took sample of the seized substance, which according to him (PW10), was Ganja and sent the same to FSL and a report, which is Ext.5, was received, in th is regard, from one Sri D.J. Hazarika, Scientific Officer, Narcotic Division, FS L, Assam, and, then, he filed charge-sheet against the accused.

20. The fact that Ext.5 is the report in respect of the sample drawn from th e seized material was not disputed at the trial. What was denied was that no Gan ja was recovered and seized from the possession of the accused. 21. Appearing on behalf of the appellant, Prasanta Roy, Mr. B.M. Choudhury, learned counsel, referring to the case of Heera Lal Vs. State, reported in 1994 (3) Crimes 10, has submitted that the Scientific Officer of the Drugs and Narcot ic Division, FSL, is not an authorized person in terms of Section 293 Cr.PC and, in the absence of examination of Sri D.J. Hazarika aforementioned, the correctn ess of the contents of the report could not have been said to have been legally determined. 22. There can be no dispute and, in fact, there is no dispute before us that Section 293 Cr.PC makes reports from authorized persons admissible in evidence without their examination, such persons being a Chemical Examiner or Assistant C hemical Examiner to the Government, the Chief Controller of Explosives, the Dire ctor of the Finger Print Bureau, the Director, Haffkeine Institute, Bombay and t he Director [Deputy Director or Assistant Director] of a Central Forensic Scienc e Laboratory or a State Forensic Science Laboratory, the Serologist to the Gover nment, and any other Government Scientific Expert. 23. We do not find that Scientific Officer, Drugs and Narcotic Division, FSL , is one of the persons mentioned in Section 293 Cr.PC. Though Ext.5 has been pr oved as a report from the FSL, the defence was not provided with the liberty to determine the correctness of the report, because the said D.J. Hazarika was not examined as a witness. 24. What surfaces from the above discussion is that seizure of the packets, allegedly containing Ganja, were proved as indicated above, at the trial, to hav e been found and seized from a vehicle, which had been depicted as a vehicle bel onging to the police, and the present appellants along with the accused, were oc cupants of the said vehicle projecting themselves falsely as police personnel. T he fact that the sample was drawn from such seized packets and the same were sen t to the FSL and Ext.5 is the report in respect of the said sample also stand, i n the light of what have been discussed above, proved. What has not been proved is that the seized material was or was not Ganja. For this purpose, the prosecut ion relied on Ext.5. In the absence of examination of the person, who had given the said report (Ext.5), as a witness, at the trial, it is frightfully difficult to hold and impossible to conclude that the seized article was Ganja (Cannabis) . This is a serious omission on the part of the prosecution and when the prosecu tion had failed to examine said D.J. Hazarika, the learned trial Court had ample power to summon the author of the report (Ext.5).

25. In the circumstances, as indicated above, if the report is not proved, i n accordance with law, it will, in our considered view, cause prejudice to both, prosecution as well as the defence. Examination of the said D.J. Hazarika is, t herefore, imperative. 26. We may also pause here to point out that Mr. Goswami, learned Amicus Cur iae, has referred to the case of Jitendra and another Vs. State of M.P., reporte d in (2004) 10 SCC 562, to show that the seized materials, in the present case, had not been produced in the Court and the case must fail. We find, in the pecul iar facts and circumstances of the present case, this argument not very convinci ng inasmuch as the factum of seizure of the packets has not been in dispute at t he trial. What was in dispute was whether the seized material contained Ganja or not and whether the present appellants were occupants of the vehicle aforementi oned. For the Court to arrive at a fair and just decision, it would be, in the i nterest of justice, if the conviction of the accused-appellants and the sentence passed against them are set aside and the case is remanded to the learned trial Court for summoning the said D.J. Hazarika as a court witness.

27. We may pause here to point out that it has been rightly indicated by Mr. Choudhury, learned counsel, that as far as examination of the accused-appellant s, under Section 313 Cr.PC, are concerned, the same are highly inappropriate ina smuch as the entire evidence of one witness has been assembled in one question a nd put to each of the accused-appellants. This is certainly undesirable and does not, strictly speaking, satisfy the requirement of Section 313 (1b) Cr.PC. This practice has been deprecated by this Court in the past as well. We would have c onsidered remanding the case for appropriate examination of the accused-appellan ts under Section 313 Cr.PC too; but we refrain from doing so, because of the fac t that we have carefully gone through the memorandum of appeal, which has been p referred by the appellants and we do not find that the appellants have expressed that any prejudice has been caused to them for their inappropriate examination under Section 313 Cr.PC. 28. Because of what have been discussed and pointed out above, both these ap peals partly succeed. The impugned judgment and order of conviction and sentence are hereby set aside and the case is remanded to the learned trial Court for pr ocuring the presence of said D.J. Hazarika as Court witness and examine him for the purpose of proving the contents of his report (Ext.5) with liberty given to the prosecution as well as the defence to put such question(s) to the witness as may be deemed necessary. It is further clarified that if any incriminating evid ence emerges from the examination of the witness aforementioned, the learned tri al Court would appropriately examine the accused-appellants, in this regard, und er Section 313 (1b) Cr.PC. It is, therefore, directed that the trial shall be pr oceeded expeditiously and concluded, preferably, within a period of three months from the date of receipt of the records of the case by the learned trial Court. 29. Though we have set aside the conviction and sentence of the accused-appe llants, they shall be detained in custody until the time their trial is conclude d.

30. Let the learned Amicus Curiae be paid a sum of Rs.5,000/- for his assist ance rendered to the Court. 31. osed of. 32. t. With the above observations and directions, this appeal shall stand disp Registry shall, forthwith, send back the LCR with a copy of this judgmen