High Court · 2012

2. The prosecution case, in brief is that on 24.10.2003, one Shri Bijitesh Dutta of A. Coy, 12 Grenadiers, accompanied by his sub-ordinate staffs was on du ty at Mobile Vehicle Check Post at Lalpani. At that time, he checked a passenger bus and recovered 15 Kgs of Ganza from the bus and the appellant who was allege d to be in possession of the Ganja in question at the relevant time. The appella nt was handed over to the Girighat Police Station by the Army Officer with contr abaned ganja. The suspected Ganja in question was sent for scientific analysis t o the Forensic Science Laboratory, Assam, Kahilipara. After getting the report f rom the Forensic Science Laboratory, the Investigating Officer submitted charge sheet under Section 20 (b-ii) (B) of NDPS Act, against the accused appellant. On submission of charge sheet, learned trial Court after hearing the learned couns el for the parties framed a charge against accused-appellant under the aforesaid section of law. On reading over and explaining the charge, the accused pleaded not guilty and claimed to be tried.

3. During the course of the trial, the trial Court examined as many as eigh t (8) witnesses including the I.O. and also produced documents in support of the case. All the prosecution witnesses were cross examined duly by the defence cou nsel. On completion of the recording of the prosecution evidence, the statement of the accused, was recorded in terms of the provision of Section 313 CrPC. The accused-appellant denied the charge and took the stand of total denial. On concl usion of the hearing, the learned trial Court convicted and sentenced the accuse d-appellant as indicated above which gave rise to this appeal.

4. Dr. B. Ahmed, learned counsel appearing for the appellant, vehemently su bmitted that the prosecution could not established conscious possession of the o ffending article i.e. ganja bythe accused-appellant. The Ganja in question was s eized in connection with this case by the army personal. Learned counsel by refe rring to the evidence of the witnesses pointed out that when Ganja was seized fr om inside the vehicle, the accused was admittedly standing outside the vehicle. The sole reason of suspicion was alleged running away by the accused-appellant, when the army started to check inside the vehicles.

5. In order to appreciate the arguments advanced by the learned counsel for the appellant as well as the respondent State, it would be apposite for this Co urt to scan and scrutinize the material evidence on record laid by the prosecuti on.

6. The important witness of the prosecution, PW-1, Shri Bijitesh Dutta, who is an Army Officer, deposed that he stopped a bus and asked the passenger to ge t down from the bus with their luggages. The accused-appellant also got down fro m the bus and started to run away. PW-1 and his accompanying staff chased the ac cused and caught hold of him and thereafter checked the luggages belonging to th e accused and found Ganja weighing 15 Kg. in his luggages. According to PW-1, he handed over Ganja as well as the accused to Jirighat Police Station and lodged the FIR. PW-1 fairly conceded in his cross examination that he did not mention i n his ejahar that the accused got down from the bus with a bag in his hand. PW-2 , Kamalesh Kumar stated that all passengers got down from the bus on the directi on of PW-1 and the vehicle was checked by PW-1, after the passengers got down fr om the bus. While searching inside the vehicle, an air bag was found beneath a s eat by the army personal. PW-2 also confirmed that the accused did not try to ru n away from the bus after he got down. PW-3, Sunil Kumar corroborated the testim ony of PW-2, in materials particulars. PW-3 affirmed that the bag containing Gan ja was found beneath a seat by the army personal. In his cross examination, PW-3 confirmed that he could not say with certainty, whether the bag containing Ganj a was found in possession of the accused-appellant or not. Except the above three (3) witnesses all other witnesses are formal witn 7. ess to the occurrence. From the evidence of the aforesaid three (3) witnesses, a pparently it transpires that the bag containing ganja was found by the army pers onal inside the vehicle beneath a seat, when all the passengers were outside the vehicle. The seat in which the accused-appellant was sitting while taking the j ourney and the place where the bag containing Ganja was found, was not identifie d by any of the prosecution witnesses. Neither the Conductor nor the driver or a ny other passenger was examined by the prosecution to establish that the accused -appellant was seen coming into the bus with the seized bag containing the Ganja .

8. Dr. B. Ahmed, learned counsel for the appellant relied on a decision of this Court reported in 2010 (4) GLT 565 (Onyx Maiphok and Others Vs. State of As sam and another), wherein, it was observed that the word (cid:28)conscious (cid:29) means aware ness about a particular fact and it is a state of mind which is deliberate or in tended in order to hold a person in (cid:28)conscious possession. (cid:29) It is always necessa ry to prove that the accused is not only found in physical possession of offendi ng articles but he has to prove constructive knowledge of such an article and th e power of control over it.

9. Careful perusal of the materials on record and the evidence of the witne sses, do not spell out that the accused-appellant had conscious possession of th e bag containing Ganja when the bag containing Ganja was seized by the Army Pers onnel. This being the position, this Court is of the considered view that the ap peal filed by the appellant deserves interference by this Court, since the prose cution failed to prove beyond doubt the accused guilty of possessing 15 Kgs of g anja at the time of his arrest by the army personal, while checking in the bus i n which the accused was traveling.

10. Accordingly, the appeal filed by the accused-appellant is allowed and conviction and order recorded by the learned Special Judge, Cachar, Silchar in S pecial Case No.19/2003, is hereby set aside and the accused is acquitted from th e charges under Section 20 (b-ii) (B) of the Narcotics, Drugs and Psychotropic S ubstance Act. Accused-appellant shall be set at liberty forthwith. The bail bond furnished on behalf of the accused-appellant stands discharged.

11. Send back the L.C.R.