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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
Smt. Banu Bibi W/o Late Surman Ali – Petitioner
Versus
The State of Assam – Respondent
Crl. Appeal No. 194 of 2016
Decided On : 29-07-2022
Code of Criminal Procedure, 1973 - Section 374(2), 313, 54 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b) - Appeal - Search and seizure - Recovery of ganja - Prosecution story, in brief, is that, then in-charge received an information from one that while they were on patrolling duty on NH-37 and were conducting checking in vehicles, they checked one vehicle and found ten number of packets wrapped with polythene containing suspected ganja (cannabis) from a woman passenger. The suspected ganja (cannabis) was carried by the said accused woman in order to sell the same - Hon'ble Court held that once possession is established, person who claims that it was not a conscious possession has to establish it. Section 35 gives a statutory recognition of this position, because of presumption available in law.
Findings of the Court:
Appellant was occupying a seat behind driver's seat - PW-3, driver of bus corroborated their testimony with reference to exhibited documents - Likewise, PW-4, handyman of bus, also corroborated their testimony as well as his statement recorded under Section 164 Cr.P.C. - PWs. 5 and 6, who provided police with electronic weighing scales, testified to seizure lists Ext.8 and 10 as well as delivery of one seized electronic scale to PW-6 for zimma - PW-7, forensic expert, deposed that sample of seized contraband forwarded for examination, found to be cannabis (ganja) vide report - PW-8, then In-charge of police Out Post, who made GD Entry, vide Ext.6 and on being authorised by senior police official along with PWs. 1 and 2 conducted search corroborated testimony of said prosecution witnesses and testified to inter-alia documents vide seizure, whereby, articles were seized - PW-9, then Additional Superintendent of Police (Security), recognised Ext.18, Authority Letter, whereby PW-8 was authorised to seize recovered ganja observing necessary formalities and to investigate case - PW-10, Officer-In-Charge of Jorhat Police Station, who supervised search and seizure, corroborated aforesaid evidence of prosecution witnesses - Thus, there is clear evidence, in absence of any evidence contrary thereto being elicited by defence in cross-examination of PWs, that contraband ganja was recovered and seized from exclusive and conscious possession of accused appellant only beyond reasonable doubt.
Result: Appeal dismissed.
JUDGMENT :
AJIT BORTHAKUR, J.
1. Heard Mr. I.A Talukdar, learned counsel for the appellant as well as Mr. P.S. Lahkar, learned Addl. P.P. Assam appearing for the State/respondent.
2. This appeal under Section 374 (2) of the Code of Criminal Procedure (‘Cr.P.C.’ for short) is preferred against the Judgment and Order, dated 15.06.2016, passed by the learned Special Judge (NDPS Act), Jorhat in Special Case No. 06 of 2013 arising out of GR Case No. 2068 of 2013 (corresponding to Jorhat P.S. Case No. 1152 of 2013) whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 1,00,000/- (Rupees One Lakh), in default, to suffer imprisonment for 6 (six) months under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).
PROSECUTION STORY:
3. The prosecution story, in brief, is that on 25.07.2013, one SI Hemen Das, the then In-charge of Bhogdoi Out Post, Jorhat received an information from one ASI Dulal Bora that while they were on patrolling duty on NH-37 and were conducting checking in vehicles, they checked one vehicle bearing registration No. AS-04 B/2306 [709 Bus] and found ten number of packets wrapped with polythene containing suspected ganja (cannabis) from a woman passenger. The suspected ganja (cannabis) was carried by the said accused woman in order to sell the same.
INVESTIGATION AND TRIAL:
4. On receipt of the FIR, Officer-In-Charge, Jorhat Police Station registered the case as Jorhat P.S. Case No. 1152/2013 under Section 20 (b) of the NDPS Act. After completion of investigation, the investigating officer laid a charge-sheet against the accused appellant under Section 20 (b) of the NDPS Act. On appearance of the accused appellant, the learned court framed a charge against the accused appellant under Section 20 (b) of the NDPS Act. The accused appellant pleaded not guilty and claimed to be tried.
5. In order to bring home the charge brought against the accused appellant, the prosecution examined altogether 10 (ten) witnesses and exhibited as many as 18 documents. After closing the evidence of the prosecution side, the statement of the accused appellant under Section 313 Cr.P.C. was recorded. The accused appellant pleaded innocence and claimed to be tried. After completion of trial, the learned Special Judge (NDPS Act), Jorhat convicted and sentenced the accused appellant under Section 20 (b) of the NDPS Act as stated above.
EVIDENCE:
Now, let us look to the evidence on record.
6. PW-1, ASI Dulal Bora in his evidence stated that on 25.07.2013, while he was on duty at Bhogdoi Out Post on NH-37 along with two other police personnel for Naka checking, they stopped one 709 Bus bearing registration No. AS-04B/2306 which was coming from Sivasagar and found three bags containing suspected ganja near the seat of the accused appellant and thereupon, he informed the In-charge, Bhogdoi Out Post, who, in turn, seized the passenger ticket, prepared ten packets of sample, each containing 50 grams from the seized ganja, R.C. Book, insurance certificate and fitness certificate of the vehicle etc.
During cross-examination, he stated that the said bus was full of passengers. He further stated that the accused appellant was occupying a seat behind the driver bearing Seat No. 2 or 3.
7. PW-2, Gakul Saikia, a police Constable, in his evidence, stated that on 25.07.2013, when he along with ASI Dulal Bora and CRPF personnel were on duty, they stopped one 709 Bus bearing registration No. AS-04B/2306 which was on from Sivasagar side and when they checked in the vehicle, they found three bags containing suspected ganja near the seat of the accused appellant. He further stated that when they asked for the owner of the bags, the accused appellant claimed to be the owner and disclosed her name as Banu Bibi.
During cross-examination, he stated that the said bags were opened by the handyman of the bus in his presence.
8. PW-3, Md. Nekibuddin Ahmed, who was the
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