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2000 DIGILAW 13 (SIK)

KALU BHUTIA v. STATE OF SIKKIM

2000-08-11

ANUP DEB, RIPUSUDAN DAYAL

body2000
DEB, J. ( 1 ) CONVICTION for commission of offence punishable under S. 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the NDPS Act) is the subject-matter of challenging in this appeal. ( 2 ) THE appellant, hereinafter referred to as the accused, faced trial for allegedly having committed offence punishable under S. 22 of the NDPS Act, was found guilty and convicted by the learned Special Jduge, NDPS Act, Sikkim in Criminal (NDPS) Case No. 7 of 1997, and was sentenced to undergo imprisonment for 10 years and to pay a fine of Rs. 1. 00 lakh and in default, to undergo further rigorous imprisonment for one year. ( 3 ) THE accusations which led to the trial of the accused are as follows :-THE Head Constable 939 R. B. Tiwari, In-charge, Rangpo Check Post lodged a complaint to the Officer-in-Charge, Rangpo Police Station on 5th July, 1997, that, on the same date at about 19. 45 hrs. the complainant while conducting check of a TATA truck, bearing No. SK-03/0466, coming from Siliguri, at Rangpo Check Post along with Constable 1581 Karma Bhutia and Constable 1754 Bhanu Pradhan found 22 bottles 100 ml. of Phensedyl and 300 Nos. Nitrazipam tablets underneath the seat just behind driver's seat. It was further stated in the complaint that one passenger who is a young boy along with his luggage was taken to the Rangpo Police Station. A formal FIR was drawn by the Officer-in-Charge of the Rangpo Police Station on 5th July, 1997 at 20. 00 hrs. In the charge-sheet it has been stated"that on 5-7-97 at 20. 00 hrs. received a written complaint from H/c 939 R. B. Tiwari of Rangpo P. S. stating that at about 19. 45 hrs. while checking an incoming truck No. SK-3/0466 at check-post, found 300 tablets Nitrazipam and 22 bottles Phensedyl kept behind the driver's seat. Only one boy was travelling in the vehicle as a passenger. "on the strength of the aforesaid complaint and formal FIR Rangpo P. S. case No. 9 (7)97 dated 5th July, 1997 was registered under S. 27 of the NDPS Act for investigation. Only one boy was travelling in the vehicle as a passenger. "on the strength of the aforesaid complaint and formal FIR Rangpo P. S. case No. 9 (7)97 dated 5th July, 1997 was registered under S. 27 of the NDPS Act for investigation. It was stated that during the course of investigation the Officer-in-Charge, Rangpo Police Station seized 300 tablets of Nitrazipam and 22 bottles of Phensedyl in presence of witnesses from the possession of accused Kalu Bhutia and Kalu Bhutia accused was arrested and forwarded to Judicial Custody. It was further stated that on 5th July, 1997 the accused was found smuggling 300 tablets of Nitrazipam and 22 bottles of Phensedyl from Siliguri to Singtam for self consumption. After investigation, charge sheet was filed under S. 27 of the NDPS Act against the accused Kalu Bhutia for trial. ( 4 ) PHENSEDYL is not a psychotropic substance within the meaning of clause (xxiii) of S. 2 of NDPS Act and the Schedule thereunder. The Special Judge, NDPS, Sikkim framed charge under S. 22 of NDPS Act against the accused stating that the accused was found in possession of 300 tablets of Nitrazipam. ( 5 ) PW Bir Bal Chettri who is the driver of the truck and one of the seizure list witnesses was examined on 21st April, 1999. PW Bhanu Pradhan, Constable who also took part in the conducting the search on 5th July, 1997 ws examined on 18th September, 1999. P. W. R. B. Tiwari, Head Constable in Rangpo Check Post who lodged the complaint before Officer-in-charge, Rangpo Police Station and Karma Bhutia, Constable who also conducted search were examined on 17th September, 1999. B. B. Subba, Investigating Officer was examined on 22nd November, 1999. ( 6 ) THE defence plea was one of denial. The accused pleaded ignorance of the incident and pleaded innocence. He stated in his statement recorded under S. 313 of the Code of Criminal Procedure, 1973 that he was not in the truck at all and police took him from the market (Bazar ). ( 7 ) ON consideration of evidence and materials on record, the Special Judge, NDPS, Sikkim accepted the prosecution case and convicted and sentenced the accused as aforesaid. ( 8 ) THE P. W. R. B. Tiwari in his examination-in-chief stated that on 5th July, 1997 at about 19. 45 hrs. ( 7 ) ON consideration of evidence and materials on record, the Special Judge, NDPS, Sikkim accepted the prosecution case and convicted and sentenced the accused as aforesaid. ( 8 ) THE P. W. R. B. Tiwari in his examination-in-chief stated that on 5th July, 1997 at about 19. 45 hrs. the duty constables Karma Bhutia and Bhanu Pradhan reported to him that they found 22 bottles of Phensedyl and 300 tablets of Nitrazipam hidden underneath the seat behind the driver's seat in TATA truck No. SK-03/0466 at Rangpo Check Post. He did not state in his evidence that he also conducted the search, although he stated so in the complaint lodged by him before the Officer-in-Charge, Rangpo Police Station on the basis of which the formal FIR was lodged. In examination in-chief, this witness further stated that he and other two constables took the accused along with Phensedyl bottles and Nitrazipam tablets to the Rangpo Police Station and handed over the accused "and the recovered items to Rangpo P. S. ". In cross-examination, this PW. stated that they did not find anything from the possession of the accused Kalu Bhutia and he was taken to police station on mere suspicion. It was further stated in the cross-examination that the vehicle did not belong to the accused. This witness has not stated that he conducted search. On the other hand, he has stated that two duty constables Karma Bhutia and Bhanu Pradhan reported to him that they found 22 bottles of Phensedyl and 300 Nitrazipam tablets under the seat. The complaint lodged by this witness has also not been exihibited nor the formal FIR was exhibited. Therefore, the complaint was not proved in this case. Besides it is clear that the complaint varies in material particulars from his statements on oath. ( 9 ) THE witnesses, Karma Bhutia and Bhanu Pradhan stated that at the time of routine check accused Kalu Bhutia was found sitting in the driver's cabin, and while checking rear seat of the driver's cabin, they found 22 bottles of Phensedyl and 300 tablets of Nitrazipam hidden inside the rear seat of the driver's cabin. It was stated by them that they took the carton containing 22 bottles of Phensedyl and 300 tablets of Nitrazipam along with accused Kalu Bhutia through their in-charge Head Constable R. B. Tiwari. It was stated by them that they took the carton containing 22 bottles of Phensedyl and 300 tablets of Nitrazipam along with accused Kalu Bhutia through their in-charge Head Constable R. B. Tiwari. In cross-examination, they stated that they did neither search the accused nor did they get anything from his body and they recovered Phensedyl and Nitrazipam tablets from the seat underneath the seat in which the accused was sitting. Witness Karma Bhutia stated that the accused was taken to Rangpo Police Station on mere suspicion. Witness Bhanu Pradhan stated that except the driver and the accused there was no body else in the truck and when they found 300 tablets of Nitrazipam and 22 bottles of Phensedyl in the TATA truck, only the accused was found sitting in the vehicle and the driver of the vehicle had gone to make entry in the check post. The P. W. R. B. Tiwari and P. W. Karma Bhutia stated that the accused was taken to Rangpo Police Station on mere suspicion. Bir Bal Chettri, the driver of the truck was examined and he did not state that the contraband articles belonged to the accused. On the other hand, he stated that excepting his signature on the seizure memos Exhibits P-1 and P-2, he did not know anything about the case. In the cross-examination, this witness stated that the seizure memos (Exhibits P-1 and P-2) were blank when he signed the same. The P. W. R. B. Tiwari stated in his complaint that he also conducted the checking but he did not say so in his evidence. Therefore, the evidence of P. W. R. B. Tiwari does not inspire confidence. B. B. Subba, Investigating Officer stated that he seized the exhibits 300 tablets of Nitrazipam from the possession of the accused Kalu Bhutia under proper seizure memo exhibit P-1, but in the cross-examination he stated that the above articles were seized from his table and therefore, his statement in the examination-in-chief that he seized the exhibits Nitrazipam tablets and Phensedyl from the possession of the accused in the presence of the witnesses cannot be believed. The seizure list witness, the 'handiboy' was not produced by the prosecution to corroborate the statement of the Investigating Officer. The seizure list witness, the 'handiboy' was not produced by the prosecution to corroborate the statement of the Investigating Officer. No evidence was forthcoming to show that any of the witnesses had seen the accused to keep the carton containing 300 Nitrazipam tablets under his seat or these articles belonged to the accused or he was in possession of the articles. Thus there is no independent evidence to connect the accused with the seized articles and the evidence of the police officials is contradictory to the complaint on the basis of which formal FIR was drawn and the material evidence of the 'handiboy' who was also a seizure list witness has been withheld from the Court. Therefore, the appellant is entitled to acquittal. ( 10 ) IN the result, the appeal is allowed and, the judgment of conviction and sentence passed by the learned Sessions Judge, NDPS Act, Sikkim in Criminal NDPS Case No. 7 of 1997 is set aside. The accused be set at liberty forthwith, if not required to be in custody in connection with any other case. Appeal allowed. --- *** --- .