High Court
Case Details
Crl.A. 82/2012 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY Both the appellants above named were convicted by learned Special Judge, Kamrup, Guwahati in Special Case No. 31(K)/11, for commission of offence u/s 20 (b) (ii)(C) of the NDPS Act, 1985, wherein they were sentenced to suffer RI for 10 years and also to pay a fine of Rs.1 Lakh each in default to suffer further imprisonment for 2 years. 2. ollows: The facts leading to filing of this appeal, may be stated, in brief as f
Legal Reasoning
On 28/11/11 the Dy. Supdt. of Police, (CID), Assam , Ulubari, Guwahati, received information from source about movement of Ram Lal, accused-appellant, a Ganja trafficker and a lady accompanying him. Accordingly, Sri Kutub Baishya (PW.1) Inspector of C.I.D., Assam, was authorized to take necessary action. Acc ording to the information received, both the accused-appellants above named were coming to Assam by Brahmaputra Mail from New Delhi with huge quantity of Ganja. At that time PW.1 was working as CID Inspector of Assam. Having been entruste d with the investigation of the case, PW.1 immediately moved out with a constabl e (PW.2) and rushed to the Railway Station. PW.1 also took with him a lady cons table from GRPS i.e. Rufia Begum. PW.1 together with the constables came to the New Guwahati Railway station, at about 12-00 PM and intercepted both the accuse d persons near the house of Hamed Ali, near West Cabin at around 12-30 PM in the afternoon. 3. The two accused appellants above named were found possessing with them 3 bags, in which Ganja was found rapped in black polythene. Besides, a mobile ha ndset and railway tickets were also found with them. PW.1 seized the above arti cles vide Ext.2 in presence of PW.3 , an officer accompanying him and PW.4 Raja Ali, a local meat seller, from whom one weighing balance was requisitioned, for weighing the Ganja seized vide Ext.3. One Md. Hamid (PW.5) another witness was also present at the time of making seizure of the articles seized from the posse ssion of the accused appellants. After seizure of the articles from the accused -appellants, on completing due formality PW.1 sent 3 set of samples marked as An nexure -(A)(B)(C) to the State Forensic Laboratory vide Ext.10, for chemical ana lysis of the samples. Mr. G.N. Deka, the Director of Narcotic department, vide report dated 7.10.07 confirmed that the samples tested positive for Ganja and ac cordingly, vide Ext.8 letter dated 8.12.10 informed that he may be summoned in c onnection with the case as a witness. On completion of the investigation of the case, the investigation officer submitted charge sheet against both the accused -appellants alleging commission of offence under Section 20(b)(ii)(C) read with Section 29 of the NDPS Act. 4. In view of the above, the learned Special Judge, Kamrup, as trial Court, upon hearing learned counsel for both the parties, framed formal charges agains t both the accused-appellants under Section 20(b)(ii)(C) read with Section 29 of the NDPS Act . On reading over and explaining the charges aforesaid both the a ccused-appellants pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined as many as 7 witnesses, including the I/O of the case. On conclusion of the recording of the prosecution evidenc e, the defence statements of the accused-appellants were recorded by the trial J udge in terms of provision of Section 313 CrPC. In their defence stand the acc used-appellant denied the allegation made against them by stating that they have come to Guwahati to visit their relatives and they did not carry anything excep t their own belongings. 6. tenced the accused-appellants as aforesaid giving rise to this appeal. On conclusion of the hearing, the learned trial Court convicted and sen 7. I have heard Mr. T. Bidhyut Bikas, learned counsel for the appellant and Mr. BB Gogoi, learned Addl. PP, representing the State respondents. 8. Mr. Bidhyut Bikas, learned counsel for the appellants submitted that the conviction and sentence of the appellants under the provision of NDPS Act 1985, in the instant case, is liable to be set aside and quashed, inasmuch as the sei zure list (Ext.2) in connection with the case was neither prepared in presence o f the accused persons, nor their signatures were obtained by the officer at that time. It has further been pointed out that on the other hand out of 4 independ ent witnesses only 3 were examined by the prosecution and none of them has suppo rted the prosecution case. It has been contended on behalf of the appellants th at even the woman police officer whose service was hired by the investigating ag ency has not supported the prosecution case. According to learned counsel for t he appellants, the learned trial Court below failed to take note of very importa nt issues and thus has erred in law to arrive at an incorrect finding. 9. Learned counsel for the appellant further pointed out that though PW.1 s eized the contraband articles and made samples weighing 25 grams and sent it for chemical examination through messenger, but the messenger did not hand over all eged samples on 29.11.10 and the samples carried weight of 24 grams according to Ext.7. Learned counsel submits that no attempt was made from the side of the p rosecution to ascertain that the samples entrusted to the FSL was the same sampl e handed over to the messenger. It is also not clear from the evidence on recor d that the messenger, in whose custody samples remained during the night before reaching FSL, was the same sample pack. Learned counsel submits that teammates of the investigation team, namely, PW.2 and 3 could not even state anything eith er about the accused or about the seized articles. 10. Learned counsel for the appellants also pointed out that according to PW .4 weighment scale and weights were seized from PW.4, but PW4 contradicted that the wieghment was made at his shop by the investigating team. If the versions o f the witnesses is believed, then the entire prosecution story fails, since PW.4 and 5 could not identify the accused appellants on the dock of the Court. 11. In support of his contention learned counsel for the appellant relied on a decision reported in (1) 2003(9) SCC 159 (Jagadish vs. Chetab Engfi), (2) 200 5(9) SCC 773 (Rajesh Jagadamba Avasti vs. State of Goa) ,(3) 2002(1) SCC 606 (Ba hadhur Singh v-s State of MP and another). 12. In order to appreciate the arguments advanced by the learned counsel for the appellants as well as the learned Addl. P.P. for the State Govt., I would l ike to discuss the core of the prosecution evidence. 13. PW.1 has deposed that he was authorized to search and arrest the accused persons vide Ext.1. Ext. 1 is the letter by which Dy. Supdt. of Police, CID, A ssam authorized PW.1 to search and arrest the accused persons. PW.1 is an inspe ctor of CID branch and as such he is competent to search and arrest the accused appellant u/s 43 of the NDPS Act. 14. PW.1 has deposed that he had gone to the railway station with one Sailen Pathak, Aswini Kalita(PW-2), Sunil Kumar all constables and called a lady const able from GRPS viz. Rufia Begum(PW-3) and all of them went to New Guwahati Railw ay Station. PW.2 categorically stated that he had accompanied PW.1. PW.1 has further stated that they intercepted the accused persons near t 15. he house of one Hameed Ali near west cabin, and on being searched, found ganja in the bags they were carrying with them, besides a mobile handset and railway tickets was found with them. PW.2 has specifically stated that both the 16. accused persons were found in possession of 24 Kg. of ’ganja’ in three bags and the same were seized by PWI. PW.4 has stated that he runs a meat shop and the west cabin of the railway station is vis ible from his shop. PW.4 saw gathering near the west cabin, where he came to kno w that ’ganja’ was recovered. PW-4 corroborated that the ganja in question was w eighed in his shop with his weighing measures. 17. PW.5 stated that he runs a pan shop near west cabin and witnessed police seizing the ’ganja’. The packets of ’ganja’ were also shown to him. Ext-2 is th e seizure list by which commercial quantity of contraband ganja was seized from the possession of both the accused in presence of the witnesses. It appears that all the witnesses of the seizure list have admitted seizure of the ganja. 18. PW.3, however, had deposed that she did not know what was seized and fro m whom. Thus PW.3 cannot be treated as a witness to the occurrence, due to failu re of her memory to remember and recognize the accused appellants, which is but a natural human behaviour. Nevertheless, from the evidence of PW-1, PW-2, PW-4 and PW-5, it is clear that ’ganja’ packets were seized at West cabin of the New Guwahati Railway Station at Chandmari, Guwahati, on 28.11.10. PW.4 and PW.5 thou gh confirmed the seizure of the contraband articles by the I/O but failed to rem ember the persons from whom seized. Some of the witnesses failing to remember th e accused person from whom the contraband articles had been seized cannot negate the prosecution case of seizure of ganja, if theses witnesses confirmed the sei zure of the articles. More so, when such seizure of contraband articles from the accused is affirmed by other responsible witnesses of the prosecution. 19. Though learned counsel for the appellant has disputed that the witnesses could not identify the accused persons, but PW.1, who is responsible officer of the department, had no axe to grind against the accused persons. Therefore, I do not find any reason to disbelieve the testimony of PW.1 regarding seizure of ganja from the possession of the accused appellants. In his deposition, PW.1 cl early stated that after seizure of the ’ganja’ from the possession of the accuse d person, he took three samples from the seized packets and informed his superio r officer and after arresting the accused persons handed them over to the Office r-in-Charge, CID. 20. I have gone through Ext-4 and I am of the considered view that substanti al compliance of section 52 of the Act is made in the instant case. On the top of it, I find that the search and arrest of the accused persons are also in conf ormity with the provision of Section 43 of the Act. 21. The learned counsel, on behalf of the accused appellant, has submitted t hat since the persons of the accused were searched, it was mandatory to comply t he provisions of section 50 of the Act and non compliance of the same is fatal f or the prosecution. The learned counsel has referred to the decision of the Hon’ ble Kerela High Court in Joseph alias Pappachan vs. State of Kerala, reported in 2002 CRI.L. J. 3203 to substantiate his contention. However, I am unable to subscribe to this argument, since the search was made in respect of the bags carried by the accused persons and not in their persons physically. Therefore, Section 50 of the Act is not applicable in the present case. The learned Public Prosecutor has relied on a decision 22. rendered by the Hon’ble Apex court in State of Himachal Pradesh Vs Pawan Kumar reported in (2005 Cr.L.J 2208 SC). Same view was taken in K. Chitthayan Vs State of Tamil Nadu {(2008)11 SCC 363} as in the case of Pawan Kumar(supra) above. It was decided, in both the aforesaid decisions, by the Hon’ble Apex Court that- \The provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.\ In the instant case, the accused- appellants were not searched on their body and only their bags containing ’Ganja ’ were searched and seized by PW.1. Hence, Section 50 of the Act can not be sai d to be applicable. Therefore, compliance of Section 50 of the Act does not arise in th is case. Learned counsel for the appellants submitted that as per provision of Se 23. ction 42 and 43 of the Act, seizure made from the accused-appellants is illegal. In the instant case, the seizure was made in public place by an authorized off icer of the Department, as such, Section 43 and not Section 42 is applicable in the instant case. Apparently, the provisions of section 43 was complied with at the time of seizure of the contraband articles. Similar view was taken in Naraya nswamy Ravishankar Vs Assistant Director reported in (AIR 2002 SC 3658). Besides, the fact that ganja was 24. recovered from the accused persons is also quite evident from the evidence of PW.1 and PW.2. The PW.4 and PW.5 have also corroborated the seizure of ’ganja’ from the possession of the accused persons. The seized materials were ’ganja’, has been established from the evidence of PW6. PW.6, who is Director of Narcotic Departme nt has deposed that the tests of the samples showed positive results for ’Ganja’ . 25. PW.6 confirmed in his evidence that the three samples of (exhibits) were enclosed in an envelope cover, which were sealed with the impression of a seal corresponding with the seal impression forwarded. The evidence clarified that th e samples were received by the Forensic Science Laboratory, intact, without any tempering. There is no evidence on record to prima-facie suspect that the seal w as broken or tempered with. Though learned counsel for the appellants submitted that there was different of one gram in the sample of ganja sent and received fo r chemical examination by the FSL, but the difference being very insignificant a nd minimal, it would not invite any adverse fatal presumption against the prosec ution. Therefore, there is no confusion in holding that the samples of ganja wh ich were taken afrom the bags of the accused persons contained contraband ’ganja ’. The learned counsel for the appellants contended that the bags were foun 26. d on the floor of the railway station and not in the possession of the accused. PW.1, who is a responsible officer of the department, who performed the search a nd seizure, stated that the bags containing ’ganja’ were kept on the floor near the accused persons, and also clarified that accused persons were holding the ba gs in their front. The evidence of PW.2 made it clear that PW.1 (Sri Putul Baishya) recovered the ’ganja’ from the possession of the accused persons. Since, the evidence of PW.2 remains unassailed, it can not be disbeliev ed. The evidence of the PW.5 clarified that he is a witness to the seizure o 27. f the ’ganja’, made vide Ext.2, wherein Ext.2(4) is his signature. Admittedly, t he seized ’ganja’, was shown to him. That apart, PW.4 stated in his examination- in-chief that he is a witness to the seizure made vide Ext.2 and Ext.2(3) he put his signature. The ’Ganja’ was admittedly weighed in his shop. Although h e stated in his cross-examination that he could not say about the contents of Ext.2, yet he has admitted that police read over the contents of Ext.2 to him. So, the evidence of PW.4 clarified that he had knowledge as to what was seized vide Ext.2 and he had put his signature in the Ext.2 with knowledge. On the other hand, the ganja so-seized was weighed by the PW.1, in prese 28. nce of PW4, in his shop. Therefore, it can be held that the evidence of the PW.4 and PW.5, has corroborated the evid ence of the PW.1 and PW.2 in respect of the seizure of the ’ganja’ by PW.1. The evidence of PW.1 and PW.4 corroborated each other in respect of the fact that the weighment was carried out with the weigh and balance of the PW.4, which was not disputed by the defence. The learned counsel for the appellants has also pointed out that the com 29. plainant and investigating officer in the instant case, is one and the same, which has vitiated the investigation of the case. In the instant case, the PW.1 (Sri Putul Baishya), Inspector of CID police, is the officer, who conducted the search. PW-1 also obtained the sample , packed and sealed the same and also arrested the accused persons. But, the investigation of the case was entrusted to PW.7 (Sri Sudip Chakraborty), SI of CID police, who sent the ’ganja’ sample collected in connection with this case, for examination by the FSL, vide Ext.9. PW.7 also collected the FSL examinatio n report, recorded the statements of the accused persons, and on completion of t he investigation, submitted charge-sheet, vide Ext.1. There was no evidence on record to suggest any bias or real likelihood of bias on the part of the investigating police officer. PW.1 was, in fact, not the police officer, who investigated into the case, but he was an officer empowered under Section 43 of the Act. Therefore, the part of investigat ion carried out by PW.1 was as an Empowered Officer under Section 43 of the Act. No bias could be attributed to him. On perusal of the materials on record, no evidence to that effect has also been revealed therefrom. Therefore, apparently no defect as sought to be established could be proved in the investigation of th e case, which would have vitiated the investigation and consequent search and se izure of the contraband from the possession of the accused persons.
Decision
In view of the above discussions, and the reasons 30. recorded therein, I have come to a definite conclusion that ganja of commercial quantity was seized from both the accused persons, on 28.11.2010, near West Cabin, New Guwahati Railway Statio n, Chandmari, Guwahati which they were possessing, without any authority or lice nse, and accordingly, both the accused persons are held guilty of the offences u /s 20 (b) (ii) (C) of the NDPS Act. 31. There is no infirmity in the conviction and sentence as awarded by the lea rned trial court. The impugned judgment and order awarding conviction and senten ce against both the appellants is, thus, upheld hereby. Appeal stands dismissed. 32. The convict appellant, Smt. Sayal Devi, who is on bail, shall surrender before the learned Special Judge, Kamrup, Guwahati in Special Case No.31(K) of 2 011, for serving out the sentence and payment of fine amount forthwith, failing which the learned trial court shall take steps against them in accordance with l aw. The bail bonds furnished on behalf of the appellants stand cancelled. 33. Send back the LCRs immediately.