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1999 DIGILAW 318 (GAU)

Madhab Kalita v. State of Assam

1999-09-17

B.N.SINGH NEELAM

body1999
This criminal appeal is so preferred under section 374 (2) of the Code of Criminal Procedure, 1973 read with section 36 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 against the judgment and order dated 15.6.96 so passed by the learned Special Judge, Sonitpur, Tezpur in CR Case No.7/89 by virtue of which the learned Special Judge has convicted the sole accused-appellant Shri Madhab Kalita under section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for one year. 2. Heard Mr. JM Choudhury, the learned senior counsel for the appellant. By assailing the impugned judgment under challenge, it is pointed out that before the learned Court below there was no legal evidence so available as to convict the accused-appellant under section 17 of the Act and to sentence him thereunder on the grounds mentioned in this memo of appeal and thus the judgment of conviction and sentence so passed against the present accused-appellant is liable to be set aside. The evidence so adduced on behalf of the prosecution is unnecessarily given much weightage whereas the defence so put by the present accused-appellant being side-tracked and unnecessarily much importance is given to Ext 3, the so called declaratory statement of the present accused-appellant which was so obtained under duress as also detailed by the accused-appellant at the time of recording of his statement under section 313 Cr PC. Mr. Choudhury, the learned senior counsel for the appellant has also pointed out that there are major contradictions with regard to the seizure of the opium said to have been recovered from the plastic bag of the present accused-appellant when a trap was so arranged and such seizure is said to have been made from Room No. 107 of the Blue Star Hotel as per the detailed prosecution report. In this connection it is pointed out that the Hotel Register is not produced in course of trial. Further the Manager and the boy attending the room of the said hotel were not examined, who as per the prosecution story, happened to be the eye witnesses to the scene when such search was made. As regards the major contradictions taking place in the evidence of the PWs four in number so examined, Mr. Further the Manager and the boy attending the room of the said hotel were not examined, who as per the prosecution story, happened to be the eye witnesses to the scene when such search was made. As regards the major contradictions taking place in the evidence of the PWs four in number so examined, Mr. Choudhury has pointed out that as far as PW 4 Shri T. Ram Bora is concerned, who happened to be the Sub Inspector of Police, and according to the very prosecution report who was also one of the persons of the said raiding party, the seizure of the said plastic bag containing 700 grams of opium was so made from the almirah of Room No. 107 of the said Blue Star Hotel and not from the conscious possession of the accused-appellant. It is also submitted on behalf of the accused-appellant that the matter is not being taken in right perspective by the learned Court below being swayed over by two of the reported cases so cited on behalf of the State by the Public Prosecutor conducting the case at trial stage, i.e. 1993 Crl LJ 442 (Orissa) (Banka Das & others vs. State of Orissa) and 1995 Crl LJ 1594 (Madras) (S. Raj an vs. State Assistant Collector of Customs, Intelligence, Madurai) because there are good number of reported cases of the Supreme Court in connection with this matter and in this connection the, learned counsel for the appellant has particularly referred to those cases. Over and above the other points so taken as good grounds for setting aside the impugned judgment of conviction and sentence particularly attention is drawn to the provisions of section 50 of the Act, which is for ready reference quoted below : "50. Conditions under which search of persons shall be conducted - (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer or any of the departments mentioned in section 42 or to the nearest Magistrate". 3. 3. It is submitted that this mandatory provisions to contained in section 50 of the Act has not been complied with in this case and in connection with this attention is particularly drawn to the statement of PW 1 Sri Dwipen Bania so recorded in course of trial in which he is very specific that before making search of the bag of the accused-appellant which he was keeping in his lap, he had not acquainted the accused-appellant of this privilege which he would have sought for being produced before the nearest Gazetted Officer or the nearest Magistrate in whose presence the search could have been made. This ground with regard to the provisions of section 50 of the Act which is held to be a mandatory provisions not being complied with, itself is sufficient, as submitted by the learned counsel for the accused-appellant, as to set aside the judgment of conviction and sentence so passed against him over and above the other grounds taken. In support of his this contention that there is no compliance of the provisions of section 50 of the Act, which makes the case fit for acquittal of the accused-appellant by setting aside the judgment of conviction and sentence passed against him, the learned counsel for the appellant has referred to firstly (1996) 2 SCC 201 (Raghubir Singh vs. State of Haryana) in this connection particularly its paragraph 11 is referred. It is also pointed out that the burden was in such circumstances heavily upon PW 1 or the other officers being the member of the raiding party as to explain the provisions of section 50 of the Act to the accused, which in the instant case was also not done. The other reported case, which is relied upon on behalf of the appellant is (1997) 11 SCC 93 (Abdul Rahman vs. State of Kerala) and in this connection it is pointed out that the omission of the searching officer to inform the accused of his right to be searched in the presence of the Magistrate or a Gazetted Officer and if there was illegality in conducting the raids that makes the accused to be entitled to be acquitted. The third reported case so cited and is relied upon is 1996 (2) GLJ 63 (Bajrangi Singh vs. State of Assam) in which, as submitted this Court has held that if the accused is not safeguard with compliance of the provisions of section 50 of the Act, such non-compliance of the mandatory provisions makes the trial vitiated and the accused is thus entitled to be acquitted. Lastly, it is submitted that when as per the very prosecution story as coming from the mouth of PW 1 the accused-appellant was caught in the said hotel, on no account it can be imagined how the learned Court below came to the conclusion that the said hotel in such circumstances cannot be taken as a place and further more when the said plastic bag as per the prosecution story was in the lap of the accused-appellant at the relevant time in Room No. 107 of the Blue Star Hotel how it can be said as held by the learned Court below that in such circumstances search of the bag kept in the lap of the person cannot be said to be the search of a person ? On these grounds and on other grounds so & mentioned in the memo of appeal hence the prayer is that the impugned judgment of conviction and sentence so passed thus required interference and it is a fit case in which the accused-appellant rather be acquitted on the sole ground that the mandatory provisions of section 50 of the Act has not been complied with. 4. Mr. TN Srinivasan, the learned Public Prosecutor, Assam is also heard. He has simply argued that the learned Court below has assigned reasons for convicting the accused-appellant and directing him to pay the fine and to undergo the substantive sentence imposed and thus the impugned judgment of conviction and sentence under challenge does not require any interference. 5. After hearing both the sides learned counsel, I have carefully gone through the lower Court records, the oral and documentary evidence thereunder with that of the provisions of section 50 of the Act and the reported cases so cited on this point. It transpires that on 4.3.89 a raid was so arranged at the instance of PW1 Dwipen Chandra Bania (Customs and Central Excise Inspector, Prevention) and at his direction two of the other officers help was so sought for, who were Mr. It transpires that on 4.3.89 a raid was so arranged at the instance of PW1 Dwipen Chandra Bania (Customs and Central Excise Inspector, Prevention) and at his direction two of the other officers help was so sought for, who were Mr. P. Sarma (PW 2) and Mr. B. Sonowal (not examined) and one Md Sale Sheikh (PW 3) who happened to be the Inspector and in disguise who stayed in the hotel in Room No. 107 as a customer when the trap was laid and the reservation of the said room was made in the name of Md Aslamuddin and at the instance of the informer, as per the prosecution case, the accused-appellant was led to the said room where, the accused-appellant had gone to dispose of 700 Grams of opium when he was arrested and search was so made. Out of the four PWs so examined, it transpires that PW 1 happened to be Shri Dwipen Ch Bania, the Customs Inspector, PW 2 is Mr. P. Sarma, Inspector of Customs, PW 3 is Md Sale Sheikh, also a Customs Inspector, who stayed in the hotel in disguise in Room No. 107 of the said hotel where the accused-appellant, as per the prosecution report, did go as to sell 700 Grams of opium when he was searched and arrested. PW 4 is the Police Officer Mr. T. Ram Bora, one of the members of the raiding party, who was produced on behalf of the prosecution, who also gave a different story with regard to the bag found in the almirah of the said room of the hotel and not being kept on the lap of the accused-appellant. It is also a fact that the Hotel Register was not produced and the Hotel Manager and the Room Attendant were not produced as witnesses though arrest and search was made in presence of the Hotel Manager and the Room Attendant. PW 4 even came forward to say that the seizure list was prepared at the police station and not in the hotel. PW 4 even came forward to say that the seizure list was prepared at the police station and not in the hotel. Leaving aside these, I find that there is much of strength in the argument of the learned counsel representing the appellant that if the mandatory provisions of section 50 of the Act is not complied with, in such circumstances on this score alone the judgment of conviction and sentence so passed convicting the accused-appellant under section 17 of the Act and awarding substantive sentence also directing to pay a fine of Rs. 1,00,000 is liable to be set aside. By going through the evidence, it is crystal clear that no opportunity as provided under section 50 of the Act was given to the accused-appellant. It is also clear that in the circumstances so put with regard to the said plastic bag being in the lap of the accused-appellant and the accused-appellant being caught in the trap laid in the hotel, it cannot be said that in such circumstances the provisions of section 50 of the Act was not applicable in the present case. The learned Court below, in my considered opinion, has thus taken an erroneous view on this point. The reported cases so cited on behalf of the accused-appellant in course of argument are sufficient as to make the points so raised clear. Taking that view, finding much of strength in the argument so advanced by the learned senior counsel Mr. JM Choudhury on behalf of the appellant, I find that the impugned judgment of conviction and sentence so passed warrant interference particularly because of non-compliance of the provisions of section 50 of the Act, 1985 and the other grounds taken. Consequently the impugned judgment of conviction and sentence so passed by the learned Special Judge in CR 7/89 stand set aside. The accused-appellant, namely Shri Madhab Kalita in connection with this matter is entitled to be acquitted, who is hereby acquitted. The accused-appellant who is behind the bars is set at liberty if not wanted in any other case. The accused-appellant is entitled to refund of the fine money, if any paid. 6. This criminal appeal is allowed and disposed of accordingly. Send down the LCRs immediately.