High Court
Case Details
Crl.A. 111/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT & ORDER [ o r a l ] This is an appeal against the judgment and order, dated 20-06-2012, pass ed, in Sessions (Special) Case No. 7 of 2010, by the learned Sessions Judge, Gol aghat, convicting the two accused-appellants, namely, Pijus Chakraborty and Hala luddin Talukdar, under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotrop ic Substances Act, 1985 (hereinafter referred to as the ’NDPS Act, 1985’) and se ntencing each of them to suffer rigorous imprisonment for a period of 10 (ten) y ears and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer simp le imprisonment for one year. 2. ribed as under: The prosecution’s case, as unfolded at the trial, may, in brief, be desc (i)
Legal Reasoning
On 23-07-2010, an information was received by Sri Bimal Chetri, a Sub-Inspector of Police and In-charge of Kohora Police Out Post, which falls u nder Bokakhat Police Station, that a truck was carrying ganja (cannabis) on the National Highway No. 37. Based on the information, so received, GD Entry No. 364 , dated 23-07-2010, was made by the said police officer and, acting on the said information, when the police party, led by Sri Bimal Chetri and accompanied by a n Executive Magistrate, Ajit Narayan Hazarika, was looking for the truck, in que stion, they happen to find, on 23-07-2010, at about 2.00 p.m., a Guwahati bound truck, bearing registration No. NL 05D - 7470, parked near the National Highway at Bogariguri. Inside the truck, the two accused, namely, Pijus Chakraborty and Halaluddin Talukdar, were found. While accused Pijus Chakraborty was the driver of the said truck, Halaluddin Talukdar was the handyman. When the said truck was searched, ganja (cannabis), contained in 163 numbers of packets and weighing 30 quintals 4 kgs and 220 grams, were recovered and seized, in presence of witness es, by seizure list (Ext.8). Sample was drawn from the said seized ganja (cannab is) and sent to Forensic Science Laboratory (in short, FSL), Guwahati, Assam, wh ich reported, vide its report (Ext. 3), that the sample, in question, had given positive test for ganja (cannabis). (ii) A written Ejahar (Ext.5) was accordingly lodged, on 05-09-2010, at Bokakhat Police Station, by Bimal Chetri, In-Charge, Kahara Police Out Post. Based on the said Ejahar and treating the same as First Information Report, Boka khat Police Station Case No. 140 of 2010, under Section 20 (c) of the NDPS Act, was registered against both the accused-appellants and, on completion of investi gation, a charge sheet was laid against the two accused aforementioned seeking t heir prosecution under Section 20 (c) of the NDPS Act. 3. amed against the two accused, both of them pleaded not guilty thereto. 4. In support of their case, prosecution examined 6 (six) witnesses. The tw o accused were, then, examined under Section 313 (1)(b) Cr.P.C. and, in their ex aminations aforementioned, they denied that they had committed the offence, whic h was alleged to have been committed by them, the case of the defence being that At the trial, when a charge, under Section 20(c) of the NDPS Act, was fr of denial. No evidence was adduced by the defence. 5. Having, however, come to the conclusion that the two accused stood prove d, beyond reasonable doubt, guilty of offence under Section 20(b)(ii)(c) of the NDPS Act, the learned trial Court convicted them accordingly and passed sentence s against them as mentioned above. 6. Aggrieved by their conviction and the sentences, which have been passed against them, the two accused, as convicted persons, have preferred this appeal. I have heard Mr. S Borgohain, learned counsel for the appellants, and M 7. r. BJ Dutta, learned Additional Public Prosecutor, Assam. While considering the present appeal, what attracts the eyes, most promi 8. nently, is that the prosecution has not examined, at the trial, Sub-Inspector, B imal Chetri, who was not only the informant, but also the police officer, who ha d allegedly seized the truck, in question, with the ganja (cannabis). This apart , it is, with the help of the seizure list (Ext.8), that the ganja (cannabis), i n question, contained in 164 packets, was allegedly seized in present of three w itnesses, whose names are claimed to be Kartik Bora, Bhaben Hazarika and Mohen S aikia. None of these persons, whose names appeared as witnesses in the said seiz ure list, was, however, examined at the trial and the person, who was examined a s a witness to the alleged seizure, was PW4, driver of the vehicle, which had ca rried the police party, including even the informant, Sub-Inspector, Bimal Chetr i, to the alleged place of seizure. This apart, PW1, PW2 and PW3 have been exami ned as witnesses to the seizure of the weighing machine, which belong to PW1, an d contended to have been used for the purpose of weighing ganja. There is, howev er, no evidence on record to show that the said weighing machine was, as a matte r of fact, used for weighing ganja inasmuch as no witness has claimed to have se en the weighment of the alleged seized ganja (cannabis). 9. So far as PW4, driver of the vehicle, is concerned, he has deposed that on 23-07-2010, he took the police party to Bogarijuri and, in his presence, poli ce seized a truck, which had been found parked in front of a line hotel and seiz ed huge amount of ganja (cannabis) contained in packets. This witness has, howev er, proved Ext. 2, which is not the seizure list in respect of the alleged seize d ganja (cannabis); rather, Ext.2 is a seizure list, whereby driving licence of accused Pijus Chakraborty, Fitness Certificate of the vehicle, in question, one National Permit, Registration Certification of the vehicle, etc, were seized. 10. What emerges from the above discussion is that the persons, who are, in the light of seizure list (Ext. 8), claimed to be the witnesses to the seizure o f ganja (cannabis), were not examined and the persons, who were examined, in thi s regard, i.e., PW4, was not a witness to the seizure of ganja (cannabis). 11. Coupled with the above, the informant, who had allegedly made the seizur e, namely, Sub-Inspector, Bimal Chetri, was not examined as a witness at the tri al. Hence, the information, which Sub-Inspector, Bimal Chetri, had allegedly rec eived as regards the fact, that a truck was carrying ganja (cannabis), has not p roved. No explanation has been offered by the prosecution for its omission to ex amine the informant nor is there any explanation discernible, in this regard, fr om the materials on record. 12. Above all, even if it is assumed that the two accused-appellants were fo und in the truck, in question, what needs to be noted is that the accused-appell ant, Pijus Chakraborty, was, admittedly, driver of the said truck and accused-ap pellant, Halaluddin Talukdar, was, according to the prosecution’s case, handyman of the said truck. In such circumstances, the two accused-appellants can, at be st, be regarded as persons in constructive custody or possession of the alleged ganja (cannabis) inasmuch as there is not even a particle of evidence on record to show that any of these two accused-appellants knew that what was being carrie d, inside the packets, in the said truck, was ganja (cannabis). 13. In the circumstances mentioned above, it was wholly unsafe and too hazar dous to conclude that the two accused-appellants were in conscious possession of the allegedly seized ganja (cannabis). One can also not ignore the fact that there was virtually no effective e 14. xamination of the two accused-appellants by the learned trial Court under Sectio n 313 (1)(b) Cr.P.C. inasmuch as all the relevant and material incriminating pie ces of evidence were not put to the accused-appellants and their responses were not obtained thereto. 15. What emerges from the above discussion is that the evidence on record di d not prove, as can be clearly seen, that the two accused-appellants were in con scious possession of ganja (cannabis), which was allegedly seized. This conclusi on is apart from the conclusion that the very seizure of the ganja (cannabis) ha s not been convincingly proved. 16. Situated thus, this Court is of the firm view that the two accused-appel lants could not have been held to have been proved to be guilty of the offence, which they have, eventually, been convicted of. 17.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellants and the sentences passed agai nst them by the judgment and order, under appeal, are hereby set aside. The two accused-appellants are held not guilty of the offence, which they stand convicte d of, and are acquitted of the same. 18. re required to be detained in connection with any other case. 19. Let the two accused-appellants be set at liberty forthwith unless they a Send back the LCR.