High Court
Case Details
Crl.A. 384/2003 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY The appellant was convicted by learned Sessions Judge, Nagaon, in Sessio ns Case No. 230/2000, for commission of offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985, (for short, ’NDPS Act’) an d sentenced to suffer rigorous imprisonment for 2 years and also to pay a fine o f Rs.5,000/-, in default, to suffer further rigorous imprisonment for 6 months. 2. llows: The facts leading to filing of this appeal may be stated, in brief as fo
Legal Reasoning
On 24/10/2000, an Army Unit carried out a search operation in search of illegal arms and ammunitions, in the house of accused-appellant Sishuram Singha. However, no arms were found in his house, but the Army recovered 345 Kg. of gan ja from the house of the appellant. The FIR was lodged on 27.11.2000 by the Sub- Inspector of Police, Hojai which triggered the investigation. During investigat ion, police seized the ganja and arrested the accused on 27.11.2000 in connectio n with this case. On completion of the investigation, police submitted charge-s heet against the accused alleging commission of offence under Section 20(b) of t he NDPS Act. 3. The learned Sessions Judge as trial Court, upon hearing learned counsel for both the parties, framed a formal charge against the accused-appellant under Section 20(b) of the NDPS Act, 1985. On reading over and explaining the charge , the accused-appellant pleaded not guilty and claimed to be tried. 4. During trial, the prosecution examined as many as 3 witnesses including the Investigating Officer of the case. On conclusion of the recording of the pr osecution evidence, the defence statement of the accused-appellant was recorded by the learned trial Judge in terms of provision of Section 313 of CrPC. The a ccused-appellant denied the allegation of seizure of 23 packets containing ganja from his residence. 5. enced the accused-appellant as aforesaid, giving rise to this appeal. On conclusion of the hearing, the learned trial Court convicted and sent
Legal Reasoning
6. and Mr. BB Gogoi, learned Addl. PP representing the State respondents. I have heard Mr. AB Chowdhury, learned senior counsel for the appellant 7. Mr. Chowdhury, learned senior counsel for the appellant has submitted th at the conviction is liable to be set aside inasmuch as the prosecution failed t o comply with the provisions of Section 42 and 50 of the NDPS Act, 1985. Referr ing to the evidence of PW.1, learned senior counsel submitted that the ganja sei zed, could not be established to have been seized from the possession of the acc used and there is no independent witness of the search and seizure made by the A rmy officer. PW.1, PW.2 and PW.3 pleaded total ignorance about the search and se izure made by the Army officer. Learned senior counsel for the appellant emphas ized on the fact that the seizure of ganja from the accused-appellant is not est ablished beyond all reasonable doubt. Referring to the evidence of prosecution w itness of PW.3 (S.I. of Police), learned senior counsel submitted that the ganja in question was allegedly seized from the possession of the accused as far ba ck as on 24.10.2000, but the FIR for the alleged commission of offence was lodge d on 27.11.2000. 8. From the evidence of prosecution witnesses, it does not transpire that t he ganja in question was seized in presence of the accused-appellant, since ther e is no signature of the accused-appellant in the seizure list prepared by the p olice. More so, not a single independent witness came forward to vouchsafe that the ganja was seized from the house of the accused appellant. There is no seizur e list prepared by the Army Officer. 9. Very surprisingly, there is no indication, whatsoever, as to how the sam ples of ganja were collected from the seized article. On the top of it, there i s no mention of the letter, by which the sample was sent to FSL, for chemical ex amination of the samples of ganja, allegedly seized from the accused. From the facts and circumstances leading to seizure of ganja, it is appa 10. rent that the police/ Investigating Officer had no knowledge about the seizure o f the contraband article. On the top of it, very unfortunately, no independent s eizure witness was examined by the prosecution in the instant case. 11. Learned senior counsel for the appellant also contended that the Army of ficer, who had arrested the accused was not an authorized officer in terms of th e provision of Section 41(2),42,43 of the NDPS Act. However, the prosecution did not come forward to answer the arguments so advanced by the appellant’s counsel . 12. In order to appreciate the arguments advanced by the learned senior coun sel for the appellants as well as the learned State counsel, I would like to dis cuss the core of the prosecution evidence. 13. PW.1(Subedar Amir Singh), an Army personal, who conducted the search, de posed that the Army searched the house of the accused for the purpose of recover y of arms and ammunition but instead Army found 23 packets containing ganja. Po lice were informed and the packets of ganja were handed over to the police along with the accused. Ext. 1 is the seizure list prepared in the house of the accu sed. PW.1 has staetd that the accused was found inside the house during search operation. 14. PW.2 (Mukul Saikia), the then SDPO of Hojai deposed that 23 packets cont aining ganja were seized and the total weight comes to 345 Kg. The sample was f orwarded to the FSL for chemical analysis. Ext.2 is the FSL report. PW.2 inves tigated the case and submitted charge-sheet against the accused under Section 20 (b) of NDPS Act. Ext.3 is the charge-sheet. 15. PW.3 (Kamala Kanta Deka) , S.I. of Police, who lodged the FIR vide Ext.4 deposed that on receipt of the FSL report, he handed over the case diary to the Sub-Divisional Police Officer, Hojai for investigation of the case. 16. The learned Sessions Judge summarized the discussion against the accused appellant by holding as follows: That the house of the accused was searched; The ganja was recovered from inside the house; The accused was inside the house during recovery of ganja; There is no explanation on the part of the accused for possession of gan i) ii) iii) iv) ja; v) vi) vii) ure by the Army personnel. 17. The learned Sessions Judge, however, without meeting the reasoning p roceeded to take the prosecution case as gospel truth and opined that presumptio n can be made under Section 54 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’274 94’,’1’);> of the NDPS Act and Section 42 <javascript:fnOpenGlobalPopUp(’/ba/dis p.asp’,’27486’,’1’);> thereof was not required to be complied with. Presumption under Section 54 of the NDPS Act may be made; The recovery of seizure of ganja was not challenged by the accused The accused has failed to show that he was prejudiced by search and seiz However, on careful scrutiny of the evidence of witnesses, it appears th 18. at unlike what has been observed by the learned Sessions Judge, the accused has challenged the recovery of ganja from his possession. Further, the accused in his statement under Section 313 CrPC categorically asserted that no ganja was se ized by the Army from his house. Very surprisingly, the seizure list Exht.1 reflects that the articles we 19. re seized on being produced by Subedar Amir Singh of 56 Fd. Regt.(JITRA), C/o 99 APO. There is no indication whatsoever, whether accused was produced together w ith the seized article by the Army officer before the police. There is no signat ure of the accused in the seizure list. There is not a single witness to lend cr edibility to the claim of the Army personal about the chance recovery of ganja f rom the house of the accused. Apparently, Army Officer was not an authorized of ficer in terms of the NDPS Act, 1985. More so, there is no indication as to whe n the seized articles was handed over to the local police. 20. The accused-appellant seemingly, had to be in the custody of Army from 2 4.10.200 to 27.11.2000, since police arrested the accused-appellant only on 27.1 1.2000 i.e. after 33 days of the incident. There is no mention as to where the s eized articles were kept after the seizure. 21. The prosecution has not proved that PW.1, who was a Subedar in the Army was authorized to arrest and search the accused under the NDPS Act. Apparently ,the prosecution did not come forward to prima-facie establish that search and arrest by the army was therefore, legal and valid, in the facts and circumstanc es . 22. The Investigating Police Officer had no personal knowledge of possession of ganja by the accused. More so, the Investigating Officer never bothered to go and see the place from where the ganja was recovered by the Army. However, th e production of the accused with the contraband article can be treated to be inf ormation given by any persons and on such information, the requirement of compli ance of Section 42 of the Act, become applicable, but such production of the acc used together with the contraband articles has not been proved beyond reasonable doubt. 23. Taking into consideration that the unauthorized arrest and production of the accused before the police amounts to an information under Section 42 of the Act, the accused without unnecessary delay ought to have been taken such person to a Gazzetted Officer or to the nearest Magistrate. The accused was therefore deprived of the benefits of Section 57 of the NDPS Act. No report as required under Section 57 of the NDPS Act was submitted in 24. the present case. Section 57 of the NDPS Act reads as follows: (cid:28)57. Report of arrest and seizure. Whenever any person makes any arrest or seizu re under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. (cid:29) Provisions contained in Section 57 <javascript:fnOpenGlobalPopUp(’/ba/disp .asp’,’27504’,’1’);> of the NDPS Act are not mandatory but there has to be su bstantial compliance of the said provision as the informant did not have any p rior information; 25. Learned senior counsel for the appellant also pointed out that the convi ction and sentence of the appellants under the provision of NDPS Act is liable t o be set aside and quashed, inasmuch as the procedures provided in the statute w ere not at all followed. Even the signature of the appellant was never obtained in the seizure list by the seizing officer. It has been contended on behalf of t he appellant that even the prosecution evidence did not support the prosecution case 26. Learned Sessions Judge was not justified in law to hold that the appella nt did not challenge the recovery and seizure from his possession, because it is the prosecution which is required to prove beyond reasonable doubt that the art icles (ganja) was recovered from the possession of the accused in accordance wit h law. None of the prosecution witnesses in their deposition before the trial C ourt stated that the alleged contraband article was seized from the possession o f the accused-appellant. Learned trial Court has miserably failed to appreciate the mandatory requirement of the provision of Section 42 and Section 55 of the NDPS Act, which laid down necessary safeguard against vexatious prosecution. 27. In the instant case the fact of seizure has not been proved by any legal evidence, even the prosecution has failed to identify the Army unit which condu cted the raid. More so, the alleged seized contraband articles were kept in the police station for 33 days without having any valid authority under the law. 28. Learned senior counsel for the appellant has submitted that the provisio n of Chapter V of the NDPS Act is mandatory insofar as it relates to search and seizure and keeping in safe custody of any such seized articles. Provisions of Chapter VII(B) of the Section Cr.P.C and Section 93,94,99,100 of Cr.P.C are appl icable to all search and seizure under the NDPS Act. The requirement of calling an independent witness to any search and seizure is a mandatory requirement, wh ich is violated in the instant case. 29. PW.1, who claimed to have arrested the accused and seized the ganja, could not clearly establish the identity of the accused in the Court, which impl ies that he may not be sure from whom the contraband was seized by the Army. As a matter of fact, undeniably Army may have carried out such search operations at many different houses in the villages . Thus, the evidence PW.1 do not at all inspire confidence. Neither there is any reliable independent witness of the s earch and seizure nor was anybody examined by the prosecution. PW.2 and PW.3 p leaded total ignorance as to from and at which place the house of the accused t he contraband article ganja was seized. The seizure of ganja from the accused-a ppellant was not established and the conviction based on such illegal seizure is not sustainable. 30. Learned Sessions Judge pressed into service the provision of sectio n 54 of NDPS Act to hold the accused appellant guilty of the charge, but in orde r to apply Section 54 the prosecution is at first required to establish beyond all reasonable doubt that the narcotic substance was found in possession of the accused, then only if the accused fails to account for satisfactorily, questio n of presumption in terms of section 54 may arise . Since the prosecution failed to establish possession of Narcotic substance by the accused-appellant, the que stion of application of section 54 of NDPS Act does not arise in the instant cas e.
Decision
In view of the above discussions, and the reasons 30. recorded therein, I have come to a definite conclusion that the prosecution miserably failed to establish that ganja of commercial quan tity was seized from the possession of the accused appellant and accordingly, the accused appellant acquitted of the of the offences u/s 20 (b) (i) of th e NDPS Act. 31. In the result and for the reasons discussed above, this appeal succeed s. The impugned judgment and order shall accordingly stand set aside. The accus ed-appellant is hereby held not guilty of the charges, framed against him, and he is hereby acquitted of the same. 32. Let the accused-appellant be set at liberty forthwith, unless h e is required to be detained in connection with any other case. 33. Send back the LCR.