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2002 DIGILAW 288 (GAU)

Dikbahadur Chetri v. State of Assam

2002-06-28

AMITAVA ROY, P.G.AGARWAL

body2002
P. G. AGARWAL, J.— This criminal Appeal No. 201/2000 is directed against the judgment and order passed by the Special Judge, Sonitpuir, Tezpur in Special Case No. 10 of 1996. The two appellants before us namely, Sri Dikbahadur Chetri and Sri Krishna Lal Sanyashi, who happens to be brother-in-laws, were tried for the offence u/s. 18 of the N.D.P.S. Act for possession of opium. The prosecution allegation is that the two appellants while they were travelling in a bus bearing registration No. AS-23/5008, the vehicle was checked by the Police in a routine manner and during search, two accused persons were found to be earning waist belts and on checking, 1150 gms of opium and 400 gms opium were found in possession of the accused Sri Dikbahadur Chetri and Sri Krishna Lal Sanyashi respectively. The articles were seized and the accused persons were arrested. The seized articles were sent for Chemical analysis and the FSL report, Exts. 9 and 10 gave the finding that the sample is that of opium. 2. On conclusion of the trial, the learned Special Judge convicted the two appellants u/s. 18 of the NDPS Act and sentenced accused Dikbahadur Chetri to undergo imprisonment of 12 (twelve \) years and accused Krishna Lal to imprisonment for 10 (ten) years. Both the appellants were further directed to pay the fine of Rs. 100000/- (Rupees one lakh) each in default, to further imprisonment for one year. Hence, the present appeal. 3. In this case, the report of the Chemical Examiner that the seized article was opium is not disputed. Exts. 9 and 10 are the FSL Report. Hence the trial Court rightly held that the seized article is opium. As regards the seizure of the opium from evidence of the Police Officers, namely, PW 1 Sri Rahul Amin, PW 2 Shri Jiten Borbora and Sri Sashi Kanta Das, PW 3,it is clear that they are all Police Officers and they were present at the time of search and seizure and they have deposed about the seizure of articles vide Exts. 1 and 2. Seized articles, material Exts. 1 and 2 were produced and identified. 4. The evidence on record further discloses that this is a case of routine search of vehicle by the Police Officer during which, the contraband was suddenly found and it was seized. 1 and 2. Seized articles, material Exts. 1 and 2 were produced and identified. 4. The evidence on record further discloses that this is a case of routine search of vehicle by the Police Officer during which, the contraband was suddenly found and it was seized. Section 50 of the N.D.P.S. Act is not applicable and considering the facts and circumstances of the case, the Trial Court was of the opinion that non-examination of the independent witnesses is not fatal as evidence of the Police Officers inspired confidence and the same call be relied upon to establish the. possession of contraband in the conscious possession of the accused person. The fact that the contraband was kept in the waist belts of the accused persons clearly shows that this is a case of conscious possession. Sri Choudhury, learned Senior Advocate for the appellants has submitted that in this case, search and seizure is illegal, as it was done by a person, who is not empowered under the Act and as such, the entire prosecution is liable to be quashed on that ground. In the case of State of Punjab vs. Baldev Singh, reported in AIR 1999 SC 2378 , the Constitutional Bench held are as follows :- "That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;" Although, in the instant case Section 50 of the Act is not applicable. It is submitted that the search and seizure and subsequently, the investigation was vitiated, as it was conducted by the person, who was not authorised under the law. Admittedly, this is a case, where the provision of Section 42 of the Act are applicable. It is submitted that the search and seizure and subsequently, the investigation was vitiated, as it was conducted by the person, who was not authorised under the law. Admittedly, this is a case, where the provision of Section 42 of the Act are applicable. Section 42 of the NDPS Act reads as follows: "Power of entry, search, seizure and arrest without warrant or authorisation - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or pshycotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. 2. Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior." 5. The moot point for consideration is whether PW 1, Shri Rahul Amin, SI of Police and SI Sashi Kanta Das, PW3 are the authorised Police Officer u/s. 42 read with Section 67 of the Act or not? Both the witnesses had deposed that they are not the authorised Officer under the Act, but they were authorised by PW2. The Circle Inspector of Police who was present at the place, where the search was conducted and this plea was raised before the Trial Court and the Trial Court held that this is a case of search in public place. It is squarely covered by Section 43 of the Act and notwithstanding the statement of the two witnesses, the Trial Court based its finding on the basis of Notification No. Ex. 145/85/290 dt. 25th April, 1995 issued by the Govt of Assam, Excise Department, copy of which was produced by the Public Prosecutor and available on record and it reads as follows :- COPY GOVERNMENT OF ASSAM EXCISE DEPARTMENT:: NOTIFICATION Dated Dispur, the 25th April/95 No.EX. 145/85/290 :- In exercise of the powers conferred by sub-section (1) of Section 42 read with Section 67 of the Narcotic Drugs and Pshychotropic Substances Act, 1985 (61 of 1985), the Governor of Assam is pleased to empower all Excise Officer of and above the rank of Assistant Inspector of Excise, Police Officers of and above the rank of Sub-Inspector of Police and Drugs Control Officers of and above the rank of Inspector of Drugs to exercise the powers and perform the duties specified in Section 42 within the areas of their respective jurisdiction and also authorises the said Officers to exercise the powers conferred upon them under Section 67 of the Act with effect from the date of publication of the notification in the Official Gazette. This modified this Department notification No. Ex. 145/85/158 dt. 6.2.89. Sd/- Niranjan Ghose Secretary to the Govt. of Assam Excise Department." The learned counsel for the appellants, has however, submitted that a subsequent Notification was issued on 15th May, 1995 and the same reads as follows : COPY GOVERNMENT OF ASSAM EXCISE DEPARTMENT:: NOTIFICATION Dated Dispur, the 15th May, 1995. No.EX. 145/85/158 dt. 6.2.89. Sd/- Niranjan Ghose Secretary to the Govt. of Assam Excise Department." The learned counsel for the appellants, has however, submitted that a subsequent Notification was issued on 15th May, 1995 and the same reads as follows : COPY GOVERNMENT OF ASSAM EXCISE DEPARTMENT:: NOTIFICATION Dated Dispur, the 15th May, 1995. No.EX. 145/85/301 :- In exercise of the powers conferred by sub-section (2) of Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Governor of Assam is pleased to empower all Excise Officers of and above the rank of Inspector of Excise, Police Officers of and above the rank of Inspector of Police, Drugs Control Officer of and above the rank of Inspector of Drugs to exercise the powers specified in sub-section (2) of the said Section within the area of their respective jurisdiction with effect from the date of publication of the notification in the official Gazette. Sd/- Niranjan Ghose Secretary to the Govt. of Assam Excise Department." It is, therefore, submitted that the Sub-Inspector of Police were omitted from the subsequent notification, hence, it modified the earlier Notification and the sub-inspector of Police were not authorised u/ s. 42 read with Section 67 of the Act. From the Notification dated 25th April, 1995, as quoted above, it is seen that it is clearly stated that this modified this Department notification No. Ex. 145/85/258 dt. 6.2.89, whereas, the Notification dated 15th May, 1995, wherein there is no statement or mention that it modifies, or override or repeals the Notification dated 25th April, 1995. In absence of any such provision in a notification dated 15th May, 1995, it cannot be said that the Notification dated 25th April, 1995 stands superseded. It is, therefore, held that PW 1 and PW3 were authorised under the Act and this search and seizure and investigation does not suffer from any infirmity and illegality regarding competence of the personnel. The question of validity of the authorisation by the Inspector of Police, PW.2 need not be considered in view of the aforesaid decision. 6. The next limb of submission of the learned counsel for the appellant is that in the instant case, seized opium was not sealed as required under the law, PW 1 has stated as follows :- "The sample of seized articles were also taken at the Po. samples were sealed in my presence. 6. The next limb of submission of the learned counsel for the appellant is that in the instant case, seized opium was not sealed as required under the law, PW 1 has stated as follows :- "The sample of seized articles were also taken at the Po. samples were sealed in my presence. Seized articles were kept in police malkhana. However, the box in which seized articles were kept was not separately sealed. The drug was kept in a box in the general custody of general store room." PW3, on the other hand, has stated that the seized articles were initially deposited at Sootea Police Station and it was kept at Thana Malkhana before producing the same before the Court. The order sheet shows that the seizure list was produced before the Special Judge alongwith arrested accused persons. Moreover, Exts. 5 and 6 are the forwarding letters which shows that the samples was drawal on 3.4.96 itself and sent to the Forensic Science Laboratory through the Special Messenger and it was received by the letter dated 6.4.96 vide Exts. 7 and 8. Sri Choudhury, learned counsel has placed reliance on the decision of this Court in the case of Md. Ayub vs. State of Assam, 1998(1) GLT65, the learned Single Judge observed as follows :- "The leaned counsel appearing for the appellant has assailed the findings mainly on the grounds that there was no sealing of the Articles when it was actually seized and there is no evidence adduced by the prosecution to show that the article seized from the possession of the accused remained intact till it was produced before the Magistrate and thereafter sent to and received by the State Forensic Science Laboratory. There is not a slightest whisper in the evidence of PW 5 that the sample as received by him was intact and the seals thereon tally with any specimen seal impression separately sent to the Forensic Science Laboratory. Mere reading of the evidence of PW 6 and would go to show that they are referring to the transaction on 6.6.94 whereas the prosecution case that accused was checked on 3.6.94 around 7 A.M. at the over bridge of the railway platform and Guwahati Railway Station. It was on the 4th day when the Article was produced before the Chief Judicial Magistrate. It was on the 4th day when the Article was produced before the Chief Judicial Magistrate. There is absolutely no evidence as regards officer who retained the custody of the seized article and in what condition it was kept by him. It was for the prosecution to have proved by adducing affirmative evidence that the articles as seized on the 3rd morning remained intact and untempered till it was produced before the Magistrate on 6.6.94, but no such evidence is forthcoming. There is not a word in the evidence of the Inspector PW1 as to what prevented him from sealing the seized article immediately on its seizure. If it could not be done at the overbridge atleast it could well have been done and ought to have been done in the office of the Railway Police Station immediately after the seizure. Keeping the seized articles for 3/4 days and thereafter producing the same before the Magistrate hardly inspite any confidence." 7. In the present case, as quoted above PW1 had categorically stated that the sample was taken at the place of occurrence itself and the seized articles were kept in Police Malkhana. The forwarding report containing this facsimile of seal has been proved and exhibited, i.e. Exts. 5 and 6, which are not challenged. Further. Exts. 10 and 12 shows that the samples were received by the FSL with the seal impression intact and it talked with the impression forwarded. As regards the keeping of the seized articles in a carton in police malkhana, PW 3 has deposed that the Police malkhana, remains in the custody of the O/C and Sheristadar of the Police Station and even the Police Officers are required to obtain permission to enter malkhana. Witness has deny the prosecution suggestion regarding scope of tempering with the articles lying in the malkhana. There is a presumption under the law that an official act has been performed in the manner, it is required to be performed. In the present case, we find that the sample of contraband was drawn on 3.4.96 at the place itself and sealed. After seizing the articles on 3.4.96, the forwarding report etc. was prepared and the Messenger left the Police Station for Guwahati alongwith the sample and it was delivered at the Forensic Science Laboratory on 5.4.96. In the present case, we find that the sample of contraband was drawn on 3.4.96 at the place itself and sealed. After seizing the articles on 3.4.96, the forwarding report etc. was prepared and the Messenger left the Police Station for Guwahati alongwith the sample and it was delivered at the Forensic Science Laboratory on 5.4.96. Considering the distance from Sootea Police Station to Guwahati, it can be safely said that there was no delay. Further, it can be said that for custody of contraband in a place like Sootea Police malkhana was the proper place for keeping the contraband/sample etc. 8. A suggestion was given to PW3 that the contraband was planted subsequently. In this case, we find that the contraband was seized on routine check up and the witness had no information even about carrying contraband by the two accused appellants. The accused-appellants were not known to the Police Officers and there is no suggestion even that either PW 1 or PW 3 had any animus with the accused persons, as a matter of fact, during cross-examination, even the identity of the appellants were challenged. Considering the quantity of opium seized, which is more than 1.5 kg and the market value of the said opium will be beyond of Rs. 5 lakhs, a submitted, where is the scope for alleging planning. The two police Officers of he rank of SI of police, could have ill-afforded to spend that much of money for planting the contraband in order to file a false case against unknown persons with whom there is no animosity. 9. In view of the oral and documentary evidence on record and in view of the presumption available u/s. 54 of the Act, it is held that the two accused appellants, were in unlawful possession of contraband opium and they are guilty of offence punishable u/s. 18 of the NDPS Act. There is no merit in this appeal, and the appeal is accordingly, dismissed.