High Court
Legal Reasoning
Out of two convicts only one is before this Court in appeal. There is no record whether the other convict Diganta Mali has preferred any appeal against the conviction and sentence. As regards the present appellant the prosecution co uld not prove by cogent and reliable evidence that he boarded the bus with the p acket containing ganja or he had conscious possession of the same inasmuch as no co-passenger of the bus was examined by the prosecution. There is no eviden ce to the effect that the packet containing the seized ganja belonged to the app ellant or it was put by him below the seat. In view of the above the appellant i s entitled to benefit of doubt. The impugned judgment so far it relates to the present appellant is concerned is quashed and set aside. 10. ged. 11. 12. The appellant is acquitted on benefit of doubt. Bail bond stands dischar Appeal stands allowed. Return the LCR.
Arguments
HON’BLE MR JUSTICE PK MUSAHARY Heard Mr.S.C.Biswas, learned counsel for the appellant. Also heard Mr.K.Munir, learned Addl.P.P., Assam, for the respondent State. By filing this appeal the appellant has challenged the judgment dated 19 2. .2.2005 rendered by the learned Special (Sessions) Judge, Darrang, Mangaldoi in Special (N) Case No. 9/2004 convicting the appellant u/s 20(b)(ii)(B) NDPS Act and sentencing him to undergo R.I. for 6 years and to pay fine of Rs.2,000/- and in default simple imprisonment for 2 months. 3. The facts, in brief, are that on 4.3.2004, the bus in which the appellan t was travelling, was intercepted by Excise staff and recovered some packets of suspected ganja wrapped in a black polythene under the sit of the passengers. Th e suspected articles were seized and the appellant alongwith a co-accused Digan ta Mali, was arrested and brought to police station . Both the accused persons were produced before the Chief Judicial Magistrate, Mangaldoi on the same day a t 8 AM (4.3.2004). The sample of the seized articles was drawn and the same was sent to FSL for chemical examination as per order of the CJM. Positive report wa s received from the FSL. On receipt of the FSL report, the charge sheet was subm itted against the accused persons named above under the aforesaid Section of law . They pleaded not guilty and demanded for trial and accordingly they faced the trial. 4. The learned trial Court, on consideration of the materials and evidence on record and upon hearing the parties passed the impugned judgment convicting a nd sentencing both the accused including the present appellant as indicated abov e. 5. I have carefully gone through the evidence on record. Four witnesses wer e examined by the prosecution. PW 1 and PW 2 are Excise staff. PW 1 is the Excis e Inspector who seized the articles. PW 2 is the Constable who was present along with PW 1 at the time of interception of the bus and seizure of the article in q uestion. Both the official witnesses stated that no Magistrate was present at th e time of making the seizure. They also stated that the accused persons were bro ught before the CJM, Mangaldoi . PW 3 and PW 4 are conductor and driver of the b us respectively. PW 3 signed as a seizure witness but he categorically stated th at the seized article was not shown to him. Similarly, PW 4, driver, also stated the same. They have no idea or knowledge as to how the bag was recovered or wha t the said bag contained. 6. No independent witness was examined by the prosecution. Admittedly not e ven any co-passenger of the bus in question was examined as witness. No official witness from FSL was also examined by the prosecution to prove its report. 7. From the impugned judgment it appears that the article was seized on 4.3 .2004 but the sample was drawn and sealed in presence of the learned CJM, Darran g on 5.3.2004 i.e. after a gap of one day. As per order of the learned Sessions Judge dated 4.3.2004 the seized ganja was directed to be kept in excise custody but the prosecution did not produce the Malkhana register or any document to pro ve the fact that in pursuance of court’s order the seized ganja was kept in exci se custody to rule out the chance of manipulation by anybody. The prosecution ha s failed to show that the seized ganja was kept in special custody of the exci se official. The record does not reveal that any excise official was specially a sked to keep the seized ganja under his care and custody . No memo is available on record about the keeping of seized ganja by an excise staff. The Court has n o basis to believe that the seized ganja was really kept in safe custody of exci se official and there was no chance of being tempered with. The same is not refl ected in the evidence of PW 1 and PW 2. 8. A detailed provision has been made under Section 55 of the NDPS Act in r egard to taking charge of articles seized and keeping them in a safe custody. Th e said Section is reproduced below for the sake of appreciation and ready refere nce: (cid:28)55. Police to take charge of articles seized and delivered-An Officer-In-Charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local ar ea of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or to take sample s of and from them and all samples so taken shall also be sealed with a seal of the Officer-In-Charge of the Police Station. (cid:29) From the above, it is quite clear that the prosecution committed irregularities in keeping the seized ganja in safe custody in violation of the provision of law . In this regard reference may be made to State of Rajasthan-Vs.- Gurmail Singh reported in (2005) 3 SCC 59. It was a case where the prosecution claimed that t he seized articles were kept in Malkhana till it was taken over but the Malkhana register was not produced in support thereof. The Apex Court regarded it as a s erious infirmity on the part of the prosecution and quashed the conviction. Furt her in Gurbax Singh-Vs-State of Haryana, AIR 2001 SC 1002, it is held that the p rovision under Section 55 is not mandatory but the I.O. cannot totally ignore th is provision and failure in compliance with the same will have a bearing on appr eciation of evidence regarding arrest of the accused and seizure of articles. 9.