Back
IN THE HIGH COURT OF GAUHATI
Mir Alfaz Ali, J.
Md. Sahidur Rahman - Appellants
Vs.
The State of Assam and Ors. - Respondents
Crl.A. 326 of 2015
Decided On : 11-05-2018
Narcotic Drugs and Psychotropic Substances Act, 1985 – S. 20 42 43 – Code of Criminal Procedure – S. 100 313 – Appeal Against Conviction Under NDPS Act – This appeal is directed against the judgment and order passed in Special (NDPS) Case by the Court of Special Judge – By the said judgment, the appellant was convicted u/s. 20 (b) (ii) (C) of the NDPS Act – Counsel for the accused/appellant assailed the judgment, amongst others, on the following main grounds :- (i) Non-compliance of Section 42 NDPS Act – (ii) Absence of independent witnesses at the time of search and seizure – (iii) The sample collected for chemical examination was neither representative nor in accordance with prescribed procedure – Held, Section 42 (2) NDPS requires that where an official of the department mentioned in Section 42 takes down any information in writing under sub-section (1), he shall within 72 hours send a copy thereof to his immediate official superior – In the instant case, though the PW 6 categorically stated that he recorded the secret information in the relevant register, no evidence has been adduced to prove, that copy of the secret information, which was reduced to writing, was sent to the official superior as mandated by section 42 (2) NDPS Act – From the prosecution evidence, it is therefore, crystal clear that there was total non-compliance with the provision of Section 42 (2) of the NDPS Act – What therefore crystallizes from the above evidence is that there was no independent witness to the search and seizure in the present case – The requirement of presence of independent witness in the process of search and seizure, more particularly when the offence is of serious in nature and provides for stringent punishment, is necessary to make the process of search and seizure transparent and credible – Absence of any effort of the seizing officer to conduct the search and seizure in presence of independent and respectable person and feeble attempt of the prosecution to project the stock witness as independent witness, was certainly a circumstance to cast doubt on the credibility of the entire exercise of the search and seizure in the present case, more particularly when the search and seizure was not made at the place where the vehicle was caught on the basis of secret information – That apart, failure of the prosecution to send sample from the remaining 24 bags for chemical examination appears to be a serious lapse inasmuch as, appellant could not be held liable for possessing any contraband contained in the remaining 24 bags, reason being that there could not be any presumption that the 24 bags also contained contraband ganja in absence of evidence to that effect – Non-examination of the suspected article found in the 24 bags also casts a doubt on the prosecution case as to the quantity of contraband articles found in possession of the appellant. For this lapse also, prosecution case is not above board – Non-compliance with the mandatory provision of Section 42 (2) of the NDPS Act, absence of any independent witness to search and seizure as well as failure of the seizing officer to collect sample from 24 bags out of 27 bags seized rendered the impugned judgment of conviction and sentence under Section 20(b)(ii)(C) unsustainable, inasmuch as, no one can be convicted for possessing contraband drugs and as such, the appeal filed by the accused deserves to be allowed – Accordingly, the appeal stands allowed and the conviction and sentence of the accused/appellant is set aside – The accused be released if not required in any other case – Appeal Allowed
JUDGMENT :
Mir Alfaz Ali, J.
1. This appeal is directed against the judgment and order dated 22/09/2015 passed in Special (NDPS) Case No. 3/2009 by the Court of Special Judge, Sonitput, Tezpur. By the said judgment, the appellant was convicted u/s. 20 (b) (ii) (C) of the NDPS Act and sentenced to rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- (Rupees one lakh) with default stipulation.
2. As per prosecution case, on 16/7/2009, on the basis of secret information, the officers of Customs Preventive Force, Tezpur, were waiting at Mission Chariali for a suspected auto van, which was allegedly carrying contraband articles. At about 9.30 at night, they intercepted a red colour Bazaz Autovan bearing registration No. AS-13A-4343, as mentioned in the secret information report, which was carrying some plastic and jute bags containing suspected contraband articles. The officers checked the plastic bags in presence of the witnesses and driver of the van and found some dry leaves in the bags suspected to be ganja. They immediately brought the vehicle loaded with suspected ganja to the custom office at Tezpur. On thorough checking, it was found that there were 26 numbers of plastic bags and one jute bag containing 310 kgs of suspected ganja, which were seized by the customs officers following the rules and procedures prescribed by the NDPS Act. Three samples in duplicate, each samples containing 25 gms were drawn from the seized ganja and the same were sent to Forensic Science Laboratory for chemical examination. The Customs Department also conducted search in the house of the accused/appellant but nothing could be recovered. The chemical examination report of the sample collected from the seized ganja gave positive test for cannabis. After receiving the Forensic Science Laboratory report, a complaint (offence report) was filed by Sri Ajoy Sen Deka, the Inspector of Customs Preventive Force, Tezpur, on the basis of which, learned Special Judge took cognizance and eventually the accused/appellant stood trial for offence u/s. 20 (b) (ii) (C) NDPS Act.
3. In course of trial, prosecution examined nine witnesses to establish the charge against the appellant. On completion of the prosecution evidence, the accused was examined u/s. 313 CrPC and all the incriminating evidence and materials were put to him. In his examination u/s. 313 CrPC, the accused/appellant took the plea of innocence. The appellant stated in his examination u/s. 313 CrPC, that while he was going with his auto van, one Dipu Bania (DW 1) asked him that he got a trip for carrying 'husk of black pulse". Accordingly, he along with Dipu went to the place, where 27 numbers of bags were downloaded from another tempo and loaded in his tempo. Coming to know that those bags contained ganga, he protested. However, 6/8 persons, who were present there, assaulted him and compelled him to carry the bags in his vehicle and accordingly, when he was proceeding, he was apprehended by the Customs officers near Mission Hospital in front of Kacharigaon police outpost. He also stated that he intended to take the vehicle to police outpost. However, before reaching the police outpost, the Customs Department caught his vehicle. The accused/appellant also examined one defence witnesses in support of his defence. On appreciation of evidence adduced by the prosecution as well as the defence, learned trial court having found the accused/appellant guilty of committing the offence u/s. 20 (b) (ii) (C) of the NDPS Act convicted him and awarded sentence as indicated above.
4. Aggrieved by the impugned judgment of conviction and sentence, the accused preferred the instant appeal.
5. I have heard Mr. Y.S. Mannan assisted by Advocates, S. Biswas and S. Gohain, for the accused as well as Mr. S.C. Keyal, learned Addl. Solicitor General of India for the CBI.
6. Learned counsel for the accused/appellant assailed the judgment, amongst others, on the following main grounds :-
(i) Non-compliance of Section 42 NDPS
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
