Judgment · High Court · 2012

#1. The instant appeal is directed against the impugned judgment and order d ated 27.07.2005 passed by the learned Sessions Judge/Special Judge in Special Ca se No.108(K)/2000 U/S 20(B)(1) of the Narcotic and Psychotropic Substance Act, 1 985 (for short NDPS Act). 2. Being aggrieved by the said impugned judgment and order, the appellant p referred this instant appeal before this Court against the said conviction and s entence. 3. The prosecution story, in brief, is that the informant, Mr.Sobhan Ch. Ba ruah, S.I. of Noonmati Police Station lodged an FIR to the Officer-in-Charge o f Noonmati Police Station alleging, inter alia, that on 30.03.2000 at about 11 A .M., on the basis of source information Ganja was recovered from convict/appell ant, Md. Sayeb Ali, son of late Fazir Ali of Kachari Saulmari, P.S. Rangia, G.D. entry was made.

#4. On being charge sheeted, convict/appellant was tried by the Sessions Jud ge/Special Judge and found the appellant guilty of offence and convicted him U/ S 20(B)(1) of the NDPS Act. 5. From the records, it appears that during the trial, prosecution examined as many as six witnesses and also exhibited the material exhibits and certain d ocuments, which are on lower court’s records. Heard appellant’s counsel, Mr. M.H. Rajbarbhuiyan, who submits that in t 6. his instant case the evidence given by the seizure witness are contradictory as such they cannot be relied upon. Moreover, the complainant himself is the Invest igating Officer, which is against the principle of natural justice. The learned counsel also relied on the judgment of the Apex Court reported in AIR 1995 SC 2 339 in the case of Megha Singh -Vrs -State of Haryana. He further contended that prosecution has failed to establish the charge against the appellant/convict so the appeal may be allowed and conviction may be set aside. To answer the issue referred to above, let me examine the evidence on re Learned Addl. PP, Ms. A. Begum, contended that prosecution has establish 7. ed the charge against the convict/appellant by adducing the evidence so appeal m ay be dismissed. 8. After hearing the submissions forwarded by the learned counsel for the a ppellant and prosecution, I find the crux issue involved in this instant case, w hether prosecution succeeded to establish the charge against the Appellant/convi ct or not? 9. cord. On perusal of the deposition of PW1, Shri Anil Kumar Barman, the O.C., 10. Noonmani P.S., it appears that on 30.3.2000 at about 10.15 AM, he got a source i nformation that a person was loitering near Noonmati Refinary Gate for selling G anja. After receiving the information, he made G.D. entry and left along with S. I. Suban Barua and constable Kanak Deka to Noomati Refinary and found the man an d recovered 3Kgs of contravene Ganja in two packets and thereafter weighed and drawn samples and then apprehended the convict and brought him along with the se ized articles to Police Station and registered a case under NDPS Act and entrust ed the case to Suban Barua, S.I. for investigating the matter and also to prove exhibits, G.D. entry as Ext.1, seizure list as Ext.2 and weighing report as Ext. 3, and identified the accused in the dock. No serious contradiction is noti ced in the cross-examination. From the deposition of PW2, it appears that he was there along with a Po 11. lice team and the Police team recovered the Ganja and seizure list prepared as E xt.2 and put his signature there as Ext.2(2). In the cross-examination, no serio us rebuttal is noticed. From the evidence of PW.3, Ms.Azida Begum, it appears t hat on 30.3.2000 a Police team brought a person at about 11 PM to her shop and s howed her a packet stating that the packet contains bhang/ganja and obtained her signature on the top. She put her thumb impression as asked by the Police. Comb ined reading of cross-examination as well as examination in chief from PW4, it a ppears that PW4 has no first hand knowledge about the recovery as he has admitte d that Police has shown him a man and told that Ganja was found from him. If it is so, then in that case PW4, who is one of the independent witnes 12. ses, it appears that he has not seen the actual recovery so his evidence cannot be relied safely. 13. From the deposition of PW5, it appears that he is the complainant as wel l as the investigating officer and as per his deposition, it is he who has recei ved the source information; whereas PW1 in his deposition stated that he had rec eived the source information. Therefore, I find that the deposition given by PW1 and PW5 are contradictory in nature. Besides that I have noticed that he is the one who has lodged the complaint and PW1 entrusted the investigation to him, wh ich is not allowed by law. Hon’ble Apex Court in the case of Megha Singh -Vrs - State Haryana, reported in AIR 1995 SC 2339 has observed (cid:28)But it appears to us t hat he was not only the complainant in the case but he carried on with the inves tigation and Education Department examined witnesses under section 161 Cr.PC. Su ch practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. (cid:29) 14. xamined gave positive test for bhang/ganja. 15. On evaluation of the evidence in its totality, as referred above, I find that the deposition given by PW1 and PW5 are contradictory in nature. Besides t hat PW5 being a complainant also investigated the case, which is against the pri nciple of natural justice. Other independent witnesses and seizure witnesses cou ld not say specifically about the actual recovery of the contravene item involve d in the case. Therefore, it cannot be said that the evidence brought on record by the prosecution will certainly pointing finger to the convict/appellant and n one less. It is settled principle of law to a convict person under NDPS Act, posse 16. ssion must be established beyond any doubt. Possession is the sole criteria to b ring a person within the parameter of NDPS Act 1985. Presumption cannot be drawn from imagination or hypothesis. It can be drawn from proved fact and circumstan From the deposition of PW6, the FSL report, it appears that the sample e ces. 17. In this instant case, from the evidence as discussed above, I find the l ink is missing and prosecution evidence could not confidently establish the poss ession beyond any doubt. Court cannot convict a person for mere mental satisfact ion, it is the prosecution who to establish the charge beyond doubt. It is also settled principle of law if there is two interpretations gathered, one is in fav our of the prosecution and another in favour of the accused. The interpretation which is favourable to the accused/ convict should be adopted.

#18. Therefore, considering the submissions made by the learned counsel for t he appellant as well as the prosecution and after evaluation of the evidence, as discussed above, I do not find sufficient reasons to record that it is the conv ict/appellant who has committed the offence and none less. As such I am unable t o sustain the impugned judgment and order dated 27.7.2005 passed by the Special Judge in Special Case No.108(K) of 2000; accordingly the same is hereby set asid e, as well as sentence. 19. ppears that appellant is already on bail; he is to be discharged from the Bond. 20. From the submissions made by the learned counsel for the appellant, it a With this observations and direction, this instant appeal is allowed and stands disposed of.

#21. of this judgment and order. Registry is directed to send back lower court records along with a copy