Misa Danggen, W/o. Shri Sanjay Danggen vs State Of A. P. , Represented By The Public Prosecutor

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 1011

IN THE HIGH COURT OF GAUHATI, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH), (ITANAGAR BENCH)
MALASRI NANDI, J.
Smti Misa Danggen, W/o. Shri Sanjay Danggen – Petitioner
Versus
The State Of A.P., Represented By The Public Prosecutor & Anr. – Respondents
Crl. A. No.2 Of 2019
Decided On : 08-09-2022

Advocates Appeared:
For the Petitioner: B. Tajik.

Headnote:
Constitution of India, 1949 – Article 309 – Criminal Procedure Code, 1973 – Section 313, 374, 382 – Narcotic Drugs and Psychotropic Substance Act, 1985 - Section 36B, 17, 18, 42, 50 – Recruitment and conditions of service of persons serving – Power to examine the accused – Learned counsel appellant learned Additional Public Prosecutor for State of Arunachal Pradesh –
Appeal is filed Code of Criminal Procedure, 1973 accused appellant Smti Misa Danggen challenging judgment and order – Held, Evidence coated clothes weighing found from possession of the accused/ appellant no intention to keep opium could have stored it in a simple packet for personal consumption – Appellant stated that he had no knowledge about possession of opium by his wife, but it is not possible for his wife alone to make such business in this way at police quarter – Drug menace is one of serious issues facing society young minds are becoming easy targets to peddlers and traffickers of narcotic drugs – Appeal is devoid of any merit and is dismissed accordingly.

JUDGMENT :

1. Heard Mr. N. Ratan, learned counsel for the appellant, and Mr. G. Tado, learned Additional Public Prosecutor for the State of Arunachal Pradesh.

2. This appeal is filed under Section 374 (2) read with Section 382 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) and read with Section 36B of the NDPS Act, 1985 by the accused/appellant Smti Misa Danggen challenging the judgment and order dated 07.01.2019, passed by the learned Special Judge, (NDPS)-cum-Additional Sessions Judge, Basar, Western Zone, Arunachal Pradesh in Case No. BSR/SESS-28/2016 whereby she has been convicted under Section 17(a) of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 (ten) months and to pay a fine of Rs. 5,000/- (Rupees five thousand) only and in default to further undergo rigorous imprisonment for 1 (one) month.

3. The brief facts of the case is that on 30.09.2014, a written complaint was lodged by the Officer-in-Charge of Aalo Police Station stating inter alia that on receipt of a secret information from reliable source, he had conducted an enquiry at Bn Colony at Aalo regarding selling of opium and recovered 51 numbers of opium coated cloth rolls weighing approximately 158 grams produced by Misa Danggen and accordingly the said opium were seized and accused/ appellant was brought to Aalo Police Station for further enquiry wherein she admitted that she had brought the opium for medicinal purpose from Mariyang. Accordingly, a case was registered vide Aalo P.S. Case No. 97/2014 under Section 18(A) of the NDPS Act and the matter was endorsed for investigation.

4. During investigation, the accused/ appellant was arrested and the Investigating Officer recorded the statements of the available witnesses. Meanwhile, the seized alleged opium was sent for chemical examination to Forensic Science Laboratory (FSL) at Bunderdewa. On receipt of the FSL report it reveals that the seized materials contained opium which comes under the purview of the NDPS Act. After conclusion of the investigation, the I.O. submitted charge sheet under Section 17(b) of the NDPS Act against the accused/appellant before the learned Chief Judicial Magistrate, Aalo. Subsequently, the trial of the case was commenced in the court of the learned Special Judge (NDPS)-cum- Additional Sessions Judge, Basar. The learned trial court framed charge under Section 17(b) of the NDPS Act against the accused/appellant to which she pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused/ appellant, the prosecution examined as many as 6 (six) witnesses. On the other hand the accused/ appellant examined herself as DW 1 in support of her case.

6. After completion of trial, the statement of the accused/ appellant was recorded under Section 313 Cr.P.C. wherein all the incriminating materials found in the evidence was put before her and she admitted that she was arrested and from her possession, opium was seized and she had kept the opium for medicinal purpose and not for commercial purpose.

7. It was urged by the learned counsel for the accused/ appellant Mr. N. Ratan that the case of the prosecution must fail for non-compliance of the statutory provision of Section 42 of the NDPS Act. This provision is mandatory and in the present case there is admittedly non-compliance of the said provision. Thus, the accused/ appellant is entitled for acquittal as the whole case of the prosecution is vitiated.

8. In support of his submission, learned counsel for the accused/ appellant has placed reliance on the following case laws:-

(i) (2000) 8 SCC 590 (Roy V.D. vs. State of Kerala).

(ii) (2016) 11 SCC 687 (State of Rajasthan Vs. Jagraj Singh alias Hansa).

(iii) 2016 (2) GLT 171 (Chow Chiktawa Jeinow Vs. State of Arunachal Pradesh & Ors).

9. Per contra, the learned Addl. Public Prosecutor, Mr. G. Tado has submitted that there is substantial compliance of the provision of Section 42 of the NDPS Act and therefore the concurrent judgm