High Court
Case Details
Crl.A. 213/2005 BEFORE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH These appeals are directed against the Judgment and Order dated 26.08.2005 passe d by the learned Sessions Judge, Kamrup in Sessions Case No. (SPL) 91 (K)/02, co nvicting the appellants Under Section 20(b) (iii) (c)/29 of NDPS Act and sentenc ing them thereby to undergo RI for 10 (ten) years with fine of Rs. 1 lakh each a nd in default of payment of fine further RI for another 6 (six) years for their conviction Under Section 20 (b) (ii) (C) read with Section 29 of NDPS Act. 2. Heard Mr. R.D. Lal, learned counsel appearing on behalf of the appellant and Mrs. A. Begum, learned Public Prosecutor, Assam for the respondent. 3. The prosecution case, in brief, is that on 16.06.2001, at about 1:00 p.m ., Lt. Nayar of Rangia (Septi) Army camp lodged an information over phone to the Inspector of Police at Rangia, P.S. that a team of 18th Sikh Regiment has recov ered 50 kg of ganja from the house of a person situated at Kairara under the Ran gia Police Station. The information so lodged was entered in the General Diary a s Rangia Police Station GD Entry No. 578 of 16.06.2001. On receipt of the inform ation, S.I. Dharani Barman alongwith police staff went to the village Kairara. T he house of the accused Anowar Hussain was then searched and one bag containing 4 (four) packets of ganja were seized in presence of witnesses. On interrogation the accused Anowar Hussain disclosed that he alongwith other accused namely, Md . Babuluddin Ahmed and Md. Majnur Ali purchased the ganja from Rangia Railway St ation and they kept it in his house for the purpose of sale. Then the other accu sed persons were also arrested. 4. The seized ganja were weighed and sample of the ganja was drawn in prese nce of the witnesses. The samples were sent to Forensic Science Laboratory for e xamination. On receipt of report from the Forensic Science laboratory that the s ample gave positive test of cannabis, PW 4, S.I., Dharani Barman, lodged a forma l ejahar on 05.08.2001. On the basis of the ejahar, Rangia P.S. Case No. 204/01 under Section 20 (B) of the NDPS Act was registered. On completion of investigat ion, charge sheet under the aforesaid section of law was submitted against the a ccused Anowar Hussain, Md. Babuluddin Ahmed and Md. Majnur Ali. During the trial the accused persons pleaded not guilty to the charge fr 5. amed against them Under Section 20 (b) (ii) (c) read with Section 29 of the NDPS Act and claimed to be trial. 6. In order to prove the charges against the accused persons the prosecutio n examined all together 4 (four) witnesses including the informant. Thereafter, statement of accused persons under Section 313 Cr.P.C. were recorded wherein the y denied the allegations levelled against them and pleaded that they are innocen t. No defence evidence was adduced. 7. Out of 4 (four) witnesses examined by the prosecution, PW 1, Kuthuruddin Ahmed and PW 2, Topsher Ali are seizure witnesses. PW1 and PW2 have stated that their signatures were obtained by the seizure list by Military Personnel. PW1 stated that the Military Personnel obtained his signa ture by force. PW 2, stated that his signature was obtained on a blank paper and he could not say why his signature was obtained. They were not cross-examined. PW 3 a Senior Scientific Officer, working at Forensic Science Laboratory 8. , Kahilipara, examined the sample forwarded to him and gave his opinion that the sample gave positive test of Cannabis (ganja). According to him, he received th e sample on 19.06.2012 for examination. 9. PW 4, S.I., Dharani Barman, deposed that as per instruction of O.C. he a longwith his staff went to village Kairara, searched the house of the accused An owar Hussain and recovered and seized one bag containing 4 (four) packets of gan ja weighing 51 kg, in presence of witnesses. The accused Anowar Hussain disclose d that he and two other accused purchased the ganja from Rangia Railway Station and kept it in his house for sale. He implicated the accused Md. Babuluddin Ahme d and Md. Majnur Ali. One weighing apparatus was seized from Om Prakash Sarma of Rangia in presence of witnesses. PW 4, arrested the accused persons. He drew th e sample of ganja and forwarded it to Forensic Science Laboratory, for examinati on. On receipt of the report from Forensic Science Laboratory, he lodged the F.I .R. In cross examination he stated that he was verbally instructed by the Office r in Charge to visit the Place of Occurrence.
Legal Reasoning
In this case the ejahar lodged on 05.08.2012 cannot be treated as first 10. information since the GD Entry dated 16.06.2012 was the information first in tim e. The GD Entry 16.06.2012 says that the team of 18th Sikh Regiment recovered 50 kg of ganja from the house of a person situated at Kairara, under Rangia Police Station. The said information was given by Lt. Nayar of Rangia Army Camp. Neith er Lt. Nayar of Rangia Army Camp nor any member of the team of Sikh Regiment wer e either cited witnesses or examined as witnesses. The ejahar itself shows that PW 4 visited the place of occurrence after the recovery of contraband ganja. Non e of the seizure witnesses supported the prosecution case. 11. PW 4, who stated that sample of the ganja were drawn and it was sent to Forensic Science Laboratory failed to describe how the samples were drawn from f our packets of ganja. The samples were sent for examination to Forensic Science Laboratory on 19.06.2012. The ganja was seized on 16.06.2012. PW 4 failed to sta te where the ganja was kept from 16.06.2001 to 19.06.2001. One weighing apparatu s was seized from Om Prakash Sarma. The said Om Praksh Sarma was also not exami ned by the prosecution. PW 4 has stated that the house of the accused Anowar Hus sain was searched and 51 kg of ganja was recovered from his house. The other acc used were arrested only on the basis of inculpatory extra Judicial Confession of the accused Anowar Hussain before the Police. The house of the accused Anowar H ussain was searched at 1 a.m. i.e. after the sunset and before the sunrise. 12. Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) reads as under: (cid:28)Power of entry, search, seizure and arrest without warrant of authorization.-(1 ) Any such officer( being an officer superior in rank to a person sepoy or const able) of the departments of central excise, narcotics, customs , revenue intelli gence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special orde r by the Central Government, or any such officer ( being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, poli ce or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in wri ting that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed of s uch offence or any illegal acquired property or any document or other article wh ich may furnish evidence of holding any illegal acquired property which is liabl e for seizure of freezing of forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) Enter into and search any such building, conveyance or place; (b) ch entry; In case of resistance, break open any door and remove any obstacle to su (c) Seize such drug or substance and all materials used in the manufacture t hereof and any other article and any animal or conveyance which he had reason to believe to be liable to confiscation under this Act and any document or other a rticle which he has reason to believe may furnish evidence of holding any illega lly acquired property which is liable for seizure or freezing or forfeiture unde r Chapter VA of this Act; and (d) d reason to believe to have committed any offence punishable under this Act; Detain and search and, if he thinks proper, arrest any person whom he ha Provided that if such officer had reason to believe that a search warrant or aut horisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search s uch building, conveyance or enclosed place at any time between sunset and sunris e after recording the grounds of his belief. (2) Where an officer taken down any information in writing under sub-section (1) of records grounds for his belief under proviso thereto, he shall within se venty-two hours send a copy thereof to his immediate official superior. (cid:29) 13. In this case the house of the accused was admittedly searched after suns et and before sunrise. PW 4 failed to record any reason for entry into the house after sunrise and before sunset. There is nothing on record that he within 72 h rs sent a copy of his report regarding seizure, to his immediate superior Office r. 14. PW 4, stated that the accused Anowar Hussain confessed that he purchased the ganja from Rangia Railway Station and other two accused were also involved in commission of the crime. The confession of the accused was not reduced into w riting by PW4. There is nothing on record that the ganja was seized from the exclusive 15. possesion of Anowar Hussain, save and except, the evidence of PW 4 that the accu sed confessed before him that he alongwith other accused purchased the ganja and kept it in the house. The alleged confession was not reduced into writing by th e Police Officer. The accused was not forwarded to the Court with any prayer to record his confessional statement. The ejahar, Ext. 6 also does not corroborate the testimony of PW 4 to the effect that the accused Anowar Hussain confessed th at the house belongs to him and he kept the ganja in the house. In view of the aforesaid discussions, I find that the prosecution has fa 016. iled to prove its case against the accused appellants. Accordingly, the accused appellants are acquitted and set with liberty forthwith. The impugned judgment, convicting and sentencing the accused persons is set aside. The appeals are allo wed. Issue release order, directing the jail authority to release the accused-ap pellants if they are not wanted in any other case. 17. Return the LCR alongwith the Judgment and Order.