High Court
Case Details
Crl.A. 3/2010 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH The judgment and order dated 06.11.2009 passed by the learned Sessions Judge, Si vasagar, in Special Case No. 04/2006 convicting the accused/appellants under Sec tion 22(C) of Narcotic Drugs and Psychotropic Substances (in short, NDPS Act) an d sentencing them thereby to undergo RI for 10 (ten) years and also to pay a fin e of Rs. 1,00,000/- in default further RI for another 6 (six) months has been ch allenged. 2. The prosecution case in brief is that on 06.11.2006, Sub-I nspector of Police, Sri Rup Jyoti Dutta (PW 10) received secret informat ion that contraband drugs have been carried in one green colour Indi ca car from Jhagi towards Amguri side. PW 10 reduced the information in writing in a General Diary Entry and proceeded alongwith his stuff to the National Highway No.16. He stopped the vehicle which was being driven by the accused, Sri Prasanta Bora and found that Md. Eiyazuddin Ahmed was alongwith the driver in the vehicle. The vehicle was checked and 4 (four) numbers of paper cartoons containing 27,648 (Twenty sev en thousand six hundred forty eight) of Spasmo-Proxyvon 8 C capsules were recove red from the vehicle. On the basis of the statement made by the accused persons another accuse 3. d, namely, Pankaj Malakar @ Bablu Malakar (since deceased) was intercepted, who came immediately after the apprehension in a auto rickshaw. The accused persons failed to produce any document for carrying such a huge quantity of suspected d rugs. Thereafter, the suspected drugs were seized in presence of witnesses and 3 samples package were taken out from the seized capsules. One of the samples w as sent to the Forensic Science Laboratory for chemical examination. 4. On receipt of the report from the Forensic Science Laboratory to the eff ect that the samples gave positive test for Dextropropoxyphene, Dicyclomine and Paracetamal, a former Ejahar was lodged by Rup Jyoti Dutta (PW10). On the basis of his Ejahar, Amguri P.S. Case No. 141/2006 under Section 22 (C) of NDPS Act w as registered. On completion of the investigation, police submitted a charge-sheet unde 5. r Section 22 (C) of NDPS Act against the accused appellants as well as Pankaj Ma lakar. During the trial, the accused persons pleaded not guilty to the charge f ramed against them under Section 22 (C) of NDPS Act and claimed to be tried. 6. All together 11 witnesses were examined by the prosecution in support of its case. The accused persons denied the allegations leveled against them. Ho wever, they declined to adduce defence evidence. During the trial, before any ju dgment could be passed, the accused Pankaj Malakar expired and then the case was abated against him. PW1 Dilip Bora, PW2 Debajit Chutiya and PW6 Anil Gogoi deposed that SI o 7. f Police, Rup Jyoti Dutta stopped one Indica car which was proceeding from Jhagi to Amguri, PW1 and PW7 searched the vehicle and found 4 cartoons in the vehicle containing capsules. According to PW1 Dilip Bora, SI Rupajyoti Dutta had asked them to accompany him to the place of occurrence. SI Rup Jyoti Dutta suspected the said tablets to be Narcotic drugs and therefore, he seized all the cartoons containing tablets from the possession of the accused persons. 8. PW1 further stated that both the accused told them that the aforesaid ta blets were handed over to them by one Pankaj Malakar @ Bablu for carrying the sa me to Halowating Bajar and then Pankaj Malakar was coming by an Auto-Rickshaw. After some time, Pankaj Malakar was also apprehended. 9. PW2 Debajit Chutiya, PW3 Prasanta Chutia deposed that they were called t o the police station and they saw 4 (four) cartoons containing medicine. SI Rup Jyoti Dutta seized blue colour capsules contained in the cartoons. Police told them that the capsules were Narcotic Drugs and they testified their signatures in the seizure list. They also stated that police collected 3 samples of capsul es 5 each, which were packed and sealed in their presence. 10. PW4 Prabhat Chandra Neog had a Grocery shop near Amguri Police Station. He deposed that he noticed a police man unloading 4(four) nos of cartoons from TATA Indica car. The said TATA Indica car was driven by the accused Prasanta Bora a nd another accused Eiyazuddin Ahmed was occupying the front seat of the vehicle. Police opened the cartoons in his presence and he saw many capsules there then witnessed the seizure of the contraband medicine.
Legal Reasoning
11. However, in his cross-examination, he had admitted that he did not put h is signature on the seized articles. PW5 Shankar Rajak deposed in the same mann er but he admitted in his cross-examination that he did not see who was driving the car or who boarded at the car. He admitted that his signature was also not taken on the seized cartoons containing contraband capsules. 12. PW7 Sri Akhim Kakati, PW8 Ramen Narayan Ojha arrived at the police stati on on receipt of the information on that accused Prasanta Bora is in the police station and their signatures were obtained in the seizure list by the police. P W9 Nandeswar Dutta simply submitted the charge-sheet on perusal of the case diar y. 13. PW10 Rup Jyoti Dutta, Sub-Inspector of police was present at Amguri Poli ce Station at the relevant time. According to him, he received a secret informa tion that Psychotropic drugs namely, Sapasmo, Proxyvon, 8C capsules have been ca rried in a car. He accordingly informed the Officer-in-Charge, Sri Dilip Dutta, who entered the information in General Diary being GD Entry No. 124 dated 06.11. 2006 and then he alongwith two constables went out in search of the vehicle in f ront police station. When the particular vehicle reached in front of the police station, he who stopped the said car and on search found 4(four) nos. of cartoo ns containing Psychotropic substances which were kept inside the vehicle and apa rt from driver another person was found inside the vehicle, who disclosed that S ri Pankaj Malakar of Haluwating purchased the aforesaid medicines from Jorhat an d asked them to carry it in their vehicle. The accused Prasanta Bora also produ ced the visiting card in the name of Pankaj Malakar. 14. PW10, further stated that he informed his Superior Officer about the inc ident through his mobile phone. Subsequently, the accused Pankaj Malakar was ar rested, who came there in an Auto Rickshaw. PW10 seized the capsules containing Psychotropic Substances and other documents relating to the car as well as the visiting card produced by the accused. He stated that all total 27,648 capsules were seized and from those seized capsules, 15 were taken and sealed as samples . One sample containing 5 capsules was sent to Forensic Science Laboratory alon g with sealed impression of two rupee coin. It was PW10 who himself seized the contraband sample, he prepared the sketch map and sent the sample to the Forensi c Science Laboratory. On receipt of the report from the Forensic Science Labora tory he lodged an FIR. 15. PW11 Sri Dhrubajyoti Hazarika, Senior Scientific Officer examined the sa mples and found that the samples gave positive test for Dextropropoxyphene, Dicy clomine and Paracetamal. Mr. J M Choudhury, learned counsel appearing on behalf of the appellant 16. has submitted that the provision of Section 42(2) of NDPS Act was not complied w ith in this case. PW10 who received the secret information did not reduce it in to writing and he did not forward the information to his Superior Officer. It i s submitted by the learned Additional Public Prosecutor for the state that this was compliance of provision of section 42(2) of NDPS Act. The information was re duced into writing in General Diary and it was endorsed by Officer-in-Charge who is immediate Superior of PW10 are being acquittal. In the case of SUKHDEV SINGH Vs. STATE OF HARYANA reported in (2013) 2 S 17. CC 212, it was observed as under: (cid:28)15. Section 42 can be divided into two different parts: first is the power of e ntry, search, seizure and arrest without warrant or authorization as contemplate d under sub-section (1) of the said section; second is reporting of the informat ion reduced to writing to a higher officer in consonance with sub-section (2) of that section. Sub-section (2) of Section 42 had been a matter of judicial inter pretation as well as of legislative concern in the past. Sub-section (2) was ame nded by Parliament vide Act 9 of 2001 with effect from 2-10-2001. After amendmen t of this sub-section, the word (cid:28)forthwith (cid:29) stood amended by the words (cid:28)within s eventy-two hours (cid:29). In other words, whatever ambiguity or leverage was provided f or under the unamended provision was clarified and resultantly, absolute certain ty was brought in by binding the officer concerned to send the intimation to the superior officers within seventy-two hours from the time of receipt of informat ion. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely w ithin the time contemplated under the amended sub-section (2) of Section 42. Thi s, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more me aningful. In the present case, the information was received by the empowered off icer on 4-2-1994 when the unamended provision was in force. The law as it existe d at the time of commission of the offence would be the law which will govern th e rights and obligations of the parties under the NDPS Act. 22. This question is no more res integra and stands fully answered by the Consti tution Bench judgment of this Court in Karnail Singh v. State of Haryana. The Co nstitution Bench had the occasion to consider the conflict between the two judgm ents i.e. in Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Sajan Abraham and held as under: (Karnail Singh case, SCC pp. 554-55, para 35) (cid:28)35. In conclusion, what is to be noticed is that Abdul Rashid did not require l iteral compliance with the requirements of Sections 42(1) and 42(2) nor did Saja n Abraham hold that the requirements of Sections 42(1) and 42(2) need not be ful filled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information of the nature referred to in sub-se ction (1) of Section 42 from any person had to record it in writing in the regis ter concerned and forthwith send a copy to his immediate official superior, befo re proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police s tation, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or dest royed, it would not be feasible or practical to take down in writing the informa tion given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the i nformation in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 4 2(2) in regard to writing down the information received and sending a copy there of to the superior officer, should normally precede the entry, search and seizur e by the officer. But in special circumstances involving emergent situations, th e recording of the information in writing and sending a copy thereof to the offi cial superior may get postponed by a reasonable period, that is, after the searc h, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation ab out the delay will be acceptable compliance with Section 42. To illustrate, if a ny delay may result in the accused escaping or the goods or evidence being destr oyed or removed, not recording in writing the information received, before initi ating action, or non-sending of a copy of such information to the official super ior forthwith, may not be treated as violation of Section 42. But if the informa tion was received when the police officer was in the police station with suffici ent time to take action, and if the police officer fails to record in writing th e information received, or fails to send a copy thereof, to the official superio r, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the informati on at all, and does not inform the official superior at all, then also it will b e a clear violation of Section 42 of the Act. Whether there is adequate or subst antial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. (cid:29) The same principle was reiterated in the case of KISHAN CHAD VS. STATE O F HARYANA reported in (2013) 2 SCC 502. 18. Herein, in this case, PW10 has stated that he reduced the secret informa tion received in the police station and forwarded it to his superior officer. N o documents were produced during the trial that the information was sent within 72 hours to the immediate superior officer. That apart PW10, who received the secret information, he himself investi 19. gated the case. He filed the FIR, seized the contraband samples and sent the sam ples to Forensic Science Laboratory. Only charge-sheet was submitted by PW9. I n the case of Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu Vs. Rajangam (2010) 15 SCC 369 relying on the case of Megha Sing Vs. State of Haryana (1996) 11 SCC 709, the Apex Court held as under: 9. The learned counsel appearing for the accused submitted that the controversy involved in this case is no longer res integra. In Megha Singh v. State of Harya na, this Court has taken a categorical view that the officer who arrested the ac cused should not have proceeded with the investigation of the case. The relevant paragraph reads as under: (SCC p. 711, para 4) (cid:28)4. We have also noted another disturbing feature in this case. PW 3, Siri Chand , Head Constable arrested the accused and on search being conducted by him a pis tol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He bein g complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 CrPC. Such p ractice, to say the least, should not be resorted to so that there may not be an y occasion to suspect fair and impartial investigation. (cid:29) In view of the settle law, the investigation of the case by the informan 20. t himself for the aforesaid reasons was not fair. The conviction of the accused and the sentence passed by the learned Trial Court are thus liable to be setasi de. Accordingly, the impugned conviction and sentence against the accused perso ns under Section 22 (C) of NDPS Act are setaside. The accused/appellant are acq uitted and set at liberty forthwith. 22. 23. Send down the LCR alongwith the copy of this judgment. Issue release order. JUDGE