High Court
Case Details
Crl.A. 265/2006 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI This is an appeal against the judgment and order, dated 28.11.2006, pass ed, in Special Case No. 5/2005, by the learned Special Judge, Dhubri, convicting the accused-appellant, Samar Biswas, under Section 20(b)(i) of the Narcotic Dru gs and Psychotropic Substances Act, 1985 (in short, ’NDPS Act’) and sentencing h im to suffer rigorous imprisonment for a period of 4 (four) years and pay a fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 2 (two) months. 2. The case of the prosecution may, in brief, be described as under: (i) On 27.02.2005, PW4, Deputy Superintendent of Police (Headquarter), Dhubri, h aving found a person with ganja (cannabis) near Bahadurtari Kabarsthan, informed Dhubri police station, at about 9.30 PM, that at Bahadurtari Kabarsthan, one pe rson had been detained with ganja. On the basis of the instructions received by the Officer-in-Charge, Dhubri police station, PW7, who became the Investigating Officer, arrived at the place, where accused Samar Biswas was alleged to have b een found with ganja. In the presence of witnesses, the substance, surfaced to be ganja, was seized. Later on, sample from the said substance was sent to the Forensic Science Laboratory (in short, ’FSL’), Assam, Guwahati, for examination, which reported that the said se ized material was ganja. On completing, thus, the investigation of the case, a charge-sheet was laid, under Section 20(c) of the NDPS Act, against the accused. 3. At the trial, when a charge, under Section 20(b)(i) of the NDPS Act, was framed against the accused, he pleaded not guilty thereto.
Legal Reasoning
4. In support of their case, prosecution examined altogether 7 (seven) witn esses. The accused was, then, examined under Section 313(1)(b) Cr.PC and, in hi s examination aforementioned, the accused denied that he had committed the offen ce, which was alleged to have been committed by him, the case of the defence bei ng that of denial. No evidence was adduced by the defence. 5. Having, however, concluded that the accused was proved guilty of the cha rge, which had been framed against him, the learned trial Court convicted him ac cordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. I have heard Mr. R. K. Mour, learned counsel, appearing for the accused 6. -appellant. I have also heard Mr. B. J. Dutta, learned Addl. Public Prosecutor, Assam. 7. While considering the present appeal, what needs to be noted is that PWs 1, 2, 3 and 5 were, according to the prosecution’s case, witnesses to the alleg ed seizure of ganja. However, all these witnesses have deposed, in tune with ea ch other, that their signatures were obtained by the police on blank pieces of p aper. In this regard, it may be noted that PW1 has deposed that, one day, he wa s asked by the police to give thumb impression on a piece of paper, which he acc ordingly gave. PW2 has deposed that, one day, while he was returning from the p lace of his work, 3-4 police men asked him to put his signature on a piece of pa per, which he did. PW3 has deposed that, when he was returning from the place o f his work, he was asked by a police man, who was sitting in a vehicle, to give his thumb impression on a piece of paper, which he accordingly did. Supporting the evidence of PWs 1, 2 and 3, PW5, too, has deposed that while he was sleeping at his house, police came to his house, called him out and asked him to put his signature on a piece of paper, which he accordingly did. PW1, 2, 3 and 5 were cross-examined by the prosecution. Nothing could, 8. however, be elicited from their cross-examination to show that what they had dep osed was untrue or false. 9. Thus, the evidence of PWs 1, 2, 3 and 5 remained completely unshaken and their evidences clearly show that without testing PWs 1, 2, 3 and 5 as to what the state of affairs was. They had been asked to sign, on a piece of paper, by police personnel and they accordingly gave their signatures on a blank piece of paper. 10. The above discussion of the evidence on record brings me to the evidenc e of PW4, who was, at the relevant point of time, Deputy Superintendent of Polic e (Headquarter), Dhubri. This witness’s evidence is that, on 27.02.2005, while he was serving as Deputy Superintendent of Police (Headquarter), Dhubri, he rece ived an information that a person had been found with ganja near Bahadurtari Kab arsthan and he, accordingly, went to the place of occurrence with his staff and saw the accused with materials standing by the side of a pond near Kabarsthan, t he accused was, then, apprehended and the ganja was seized from his possession a nd that the accused was arrested and taken to police station. 11. A bare reading of the evidence of PW4 clearly shows that he came to the place, where the ganja was allegedly seized by the police, on information receiv ed that a person had been found with ganja, at Bahadurtari Kabarsthan. The pers on, who had, allegedly, found the accused with the ganja, was never examined and no explanation was offered by the prosecution as to why the said person was not produced at the trial and examined as a witness nor is there any explanation di scernible, in this regard, from the evidence on record. 12. Situated thus, it is clear that the evidence of PW4 does not advance the case of the prosecution. 13. Coupled with the above, the evidence of PW7 (Investigating Officer) is t hat, on 27.02.2005, at about 9.30 PM, while he was at Dhubri police station, he received telephonic information that a person had been detained with ganja, at B ahadurtari Kabarsthan, and, on being directed by the Officer-in-Charge, he went to the place, where the accused had been caught. Though PW7 claims to have seiz ed ganja in presence of witnesses, none of the witnesses has supported his testi mony. 14. More over, as has been already indicated above, it is wholly unknown as to who was the one, who had found and caught the accused with ganja, and the evi dence on record does not furnish any reliable or convincing answer to this vital question. 15. So far as the evidence of PW6, Scientific Officer, FSL, Guwahati, is con cerned, his evidence does not improve the case of the prosecution inasmuch as he has merely proved that, on examination, he had found that the sample, sent to t he FSL, gave positive test for cannabis (ganja). 16. The prime question, however, remains as to who was the person from whose possession the ganja had been seized. On this aspect of the case, prosecution has completely failed to prove that it was the accused-appellant, in whose posse ssion the ganja, in question, was found and it was, from the possession of the a ccused-appellant, that the ganja, in question, was seized. 17. tely unnoticed by the learned trial Court. What emerges from the above discussion is that the evidence on record wa 18. s grossly inadequate to hold the accused-appellant guilty of the offence, which he had been charged with. Resultantly, therefore, the accused-appellant ought to The above weakness of the prosecution’s case appears to have gone comple have been acquitted. Because of what have been discussed and pointed out above, this appeal s 19. ucceeds. The impugned conviction of the accused-appellant and the sentence, pass ed against him, by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offence, which he stands convict ed of, and he is acquitted of the same. 20. uired to be detained in connection with any other case. 21. 22. of. Send back the LCR. With the above observations and directions, this appeal stands disposed Let the accused-appellant be set at liberty, forthwith, unless he is req