2023 Supreme(Gau) 734

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUSMITA PHUKAN KHAUND, J.
Madhu Gupta S/o Late Amit Gupta – Appellant
Versus
The State Of Assam And Anr. – Respondents
Crl.A.84 of 2021
Decided on : 27-07-2023

This is a case of chance recovery during routine checking by the officers empowered to conduct railway checking.

Headnote:

JUDGEMENT : 1. Heard Ms. SK Nargis, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P. appearing for the State of Assam. 2. Both the appeals are directed against the judgment & order dated 23.02.2021 passed by the learned Special Judge, Kamrup (M), Guwahati in NDPS Case No. 16/2019 whereby the appellant Mrs. Madhu Gupta of Criminal Appeal No. 84/2021 and the appellant Sri Chitranjan Gupta of Criminal Appeal No. 87/2021 were convicted and sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs. 1 lakh with default stipulation u/s 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short).

Fact of the Case:

On 27.11.2018, the complainant SI Biswajit Rabha of Guwahati GRPS lodged an FIR that at about 7:30 AM ASI Shrawan Kumar Jha along with police personnel were on duty, checking Coach No. A of train No. 12423DN-Dibrugarh-NDLS Rajdhani Express stationed at Platform No. 1 of Guwahati Railway Station and recovered five (5) packets of ganja wrapped with black coloured polythene paper from the appellants seated at seat nos. 1 & 3. Two (2) packets of suspected ganja was recovered while checking the bag of Madhu Gupta which was carried in her ash coloured VIP trolley bag and this was seized from her possession. The packets weighed 20 kgs containing 10 kgs each. On checking the bags of Chitranjan Gupta, two (2) packets of suspected ganja was found inside his purple coloured VIP trolley bag and one packet inside his maroon coloured airbag weighing 30 kgs in total, containing 10 kgs in each packet. These bags were also seized from the possession of Chitranjan Gupta in presence of witnesses. Samples of the contraband was drawn and the same was forwarded for forensic examination. On being confronted, both the appellants admitted that they were carrying the suspected contraband from Dimapur for commercial purpose with a view to sell the same in New Delhi. They have also admitted that they had purchased the suspected ganja from one unknown local ‘Naga person’ @ Rs. 1500/-per kg. The search and seizure was made in presence of witnesses. Both the appellants were detained in platform No. 1 of Guwahati Railway Station. On receipt of information G.D. Entry was made and an authority letter u/s 41(2) of the NDPS Act was issued in the name of SI Biswajit Rabha for action as per NDPS Act, whereafter investigation commenced.

Finding of the Court:

The learned trial Court held that as this case is a case of chance recovery, there is no applicability of Section 42 of the NDPS Act. It was held that there is no confusion regarding the place of occurrence as the evidence of the witnesses clearly reveal that the articles were found while checking Coach No. A-5 and then as the train started departing, the appellants were brought down from the coach to platform No. 1. It was held by the learned trial Court that there is no dispute that the samples forwarded to the forensic laboratory were the samples drawn from the seized articles. The signatures of the appellants have been proved by the witnesses on the seizure list as well as on the seized articles marked as Ext.-2 and 4 and Material Ext.-V and VI. It was also held by the learned trial Court that compliance of Section 55 of the NDPS Act cannot be insisted upon and this has also been observed by the Hon’ble Supreme Court in the case of Karnail Singh v. State of Rajasthan, reported in 2000-Vol.-7 SCC 632 and in Hardip Singh’s case reported in (2008) 8 SCC 55. It was also held by the learned trial Court that trial was not vitiated although the inventory was prepared by the IO and not by the OC u/s 52 A of the Act. It was also held that there was absolute compliance of Section 57 of the Act because that the contraband was seized by the accused from the seizing officer on being authorised by the OC u/s 41(2) of the NDPS Act who was the immediate superior and also empowered officer u/s 53 of the NDPS Act. The seized articles along with the accused were produced before the Magistrate and the same was seized and the signatures of the appellants were taken on the seizure memo. The entire procedure of search, seizure, arrest and forwarding of the appellants have been done with the knowledge of the specially empowered gazetted officer, who used his power with circumspection.

Issues: Whether the trial Court has erred while convicting the appellants u/s 20(b)(ii)(C) of the Act.

Ratio Decidendi: The evidence of PWs-1, 2, 3 & 5 clearly depicts that this is a case of “chance recovery”. PWs-2, 3, 5 and 6 were on duty and on a routine check up they unearthed 50 kgs of ‘ganja’ allegedly transported from Dimapur. Thus Section 42 has no application in this case.

Final Decision: Appeals are allowed setting aside the order of conviction and sentence passed by the learned Special Judge, Kamrup (M), Guwahati in NDPS Case No. 16/2019 whereby the appellant Mrs. Madhu Gupta and Sri Chitranjan Gupta were convicted and sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs. 1 lakh with default stipulation u/s 20(b)(ii)(C) of the NDPS Act. Both the appeals being Criminal Appeal No. 84/2021 and Criminal Appeal No. 87/2021 are hereby allowed. The appellants are to be set at liberty if they are not wanted in any other case.