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2014 Supreme(Megh) 204
MEGHALAYA HIGH COURT
T. Nandakumar Singh, Sudip Ranjan Sen, JJ.
Krishna Bahadur Thapa - Appellant
Versus
State of Meghalaya - Respondent
Crl. Appeal No. 3 of 2013
Decided On : 12-09-2014
For the Petitioner: M.F. Qureshi, Adv.
For the Respondents: K. Khan.
The burden of proof is on the prosecution to establish the case beyond doubt, and doubt must be resolved in favor of the accused.
Headnote:
CPC 1973 - NDPS Case - 22(c) NDPS Act - The court discussed the violation of Section 42 of the NDPS Act, the faulty investigation, and the lack of evidence to establish the case beyond doubt. The court highlighted the principles of law related to search and seizure and the burden of proof on the prosecution.
Fact of the Case:
The appeal was against the conviction of the accused under the NDPS Act for possession of contraband items. The defense argued that the investigation violated the provisions of Section 42 of the NDPS Act and that the accused had no knowledge of the contraband items.
Finding of the Court:
The court found that the investigation was faulty, the evidence was lacking, and there were serious doubts about the seizure and search procedures. The court emphasized the principle that doubt must be resolved in favor of the accused.
Issues: Violation of Section 42 of the NDPS Act, faulty investigation, lack of evidence, and doubt in favor of the accused.
Ratio Decidendi: The court cannot convict a person for moral satisfaction, and doubt must be resolved in favor of the accused. Violation of Section 42 of the NDPS Act and faulty investigation create serious doubts about the case.
Final Decision: The impugned Judgment & Order dated 30.04.2013 was set aside, and the convict was directed to be released from custody immediately.
Judgment
Sudip Ranjan Sen, J.1. This instant appeal U/s. 374(2) CPC 1973 is directed against the impugned Judgment & order dated 30.04.2013 passed by the learned Special Judge (NDPS), Shillong under CRL. (NDPS) Case No. 3 of 2011 U/s. 22(c) NDPS Act.
2. Memo of appeal disclosed prosecution story in brief is that, "on the 8th day of March, 2011 at around 11:30 PM, an FIR was filed by one WPSI LD Sangma of Lumdiengjri Police Station that on 8th day of March, 2011 at around 2:45 PM, Inspector I.O. Swer, in-charge of Lumdiengjri Traffic Branch produced two vehicles believed to have been stolen bearing Registration No. MZ 01 F 3632 and another No. MZ 01 F 7535, the vehicles were intercepted at Luckier Road, Shillong by Traffic staff. The occupants of the said vehicles together with the alleged stolen vehicles were taken to the Superintendent's office and the appellants/accused were produced before the Addl. SP (Crime) along with the articles recovered from the said alleged stolen vehicles. While checking the articles, a carton recovered from the vehicle bearing Registration No. MZ 01 F7535 found to have been containing contraband goods namely; Diazepam Injections of 500 in numbers and the said contraband goods were seized at the chamber of Additional Superintendent of Police by SI J.R. Sangma".
3. Mr. M.F. Qureshi, learned counsel appeared for on behalf of the accused/convict submitted that, in this instant case prosecution has examined as many as 15 (fifteen) witnesses and also exhibited 8 (eight) documents to establish the case. The learned counsel also contended that while investigating the case, the Investigating Authority has grossly violated the Provision under Section- 42 of the NDPS Act, 1985. The learned counsel further argued that, the convict Shri. Krishna Bahadur Thapa is only a driver and he had no knowledge about those contraband items and also submitted that those contraband items were purchased from one pharmacy at Guwahati and to supply the same to another pharmacy at Mizoram. Though the IO has stated that documents regarding Cash Memos etc. were seized but the same were never produced before the Court nor the owners of those pharmacies were examined by the police and further argued that, without any fault of the driver, he has been convicted for 10 (ten) years imprisonment with a fine of Rs. 1 Lakh, so the impugned order dated 30.04.2013 needs to be set aside and to set the convict free at liberty.
4. On the other hand, Mr. K. Khan, learned Addl. senior GA appeared for on behalf of the State submitted that, Section- 42 of the NDPS Act, 1985 is not attracted in this instant case as the police has apprehended 2 (two) stolen vehicles and during search, they recovered some contraband items, so there is nothing wrong with the Judgment.
5. To answer this instant appeal, lest us discuss the evidence as recorded by the learned Court below.
6. From the deposition of the PW-1, it is apparent that during the month of March 2011, she lodged an FIR (Ext-1) at around 2:45 PM before the Inspector I.O. Swer, o/c Lumdiengjri Police Station and produced Shri. Krishna Bahadur Thapa, Lalborola Varte and Ms. Lalimpiui Khiangte along with the stolen vehicles bearing Registration No. MZ 01 F 3632 and No. MZ 01 F 7535. From her evidence it appears that, thereafter, the vehicles, the accused persons as well as the goods found were taken to the Office of the Addl. Superintendent of Police (Crime), Shillong and during search, they found Diazepam injection IPSEPOSE for IM and slow IV Injection and also prepared the panchanama (Ext-2) and identified the materials exhibited as Ext-I, II & III. According to her, the contraband items were seized in presence of the accused and witness.
7. In cross-examination, it is an admitted fact that the vehicles were detained at around 2:45 PM but produced in the Office of the Addl. Superintendent of Police (Crime) at around 6:00 PM. From her evidence, it further appears that body search of the accused was also con
