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2005 DIGILAW 349 (GAU)

Satyajit Hazari v. State of Assam

2005-05-02

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Both these appeals were heard together analogously and disposed of by this common judgment. Both these appeals have arisen out of a common judgment dated 16.2.2004 passed by the learned Special Judge, Cachar in Special Case No. 5/01, wherein the learned trial Court convicted the two accused Appellants Rabindra Singha and Satyajit Hazari under Section 20(1)(C) of the NDPS Act for possession of 60 Kgs. of Ganja and sentenced each of them to undergo R.I. for 12 years and to pay a fine of Rs.1,50,000/- each, in default to further imprisonment for one year each. 2. The prosecution case, in brief, is that on 14.6.2001 while the Maruti Van, bearing registration No. MZ-01/5467 was proceeding towards Silchar from Lakhipur side with some passengers, Shri K.C. Das, an A.S.I, of Police of Rongpur Patrol Post signaled the driver of the vehicle to stop for routine check up. However, the driver of the vehicle instead of stopping reversed the vehicle and drove back the vehicle towards Lakhipur side. Shri K.C. Das conveyed this information to Sri Hiralal Dey, S.I. of Police, Udharbond P.S. who immediately took action and went in search of the said vehicle and ultimately chased the said vehicle and detained the same at Mornarbond Monipuri Basti, near the house of one Ebabi Singh. The two accused Appellant Satyajit and Rabindra were found sitting inside the said Maruti Van. Thereafter four numbers of Airbags and to numbers of suitcases were found inside the vehicles. On checking the airbags and suitcases, it was found to have contained contraband Ganja and when it was weighed, the total weight came to 60 Kgs. The said Ganja was seized and thereafter it was sent to chemical examiner, who submitted report that the sample is that of cannabis (Ganja). The accused Appellants were tried and subsequently convicted as aforesaid. Hence the present appeal. 3. During trial, the prosecution examined, as many as, seven witnesses, Rahim Uddin, P.W. 4; Kshitish Chandra Das, P.W.-6 and Hiralal Dey, P.W.-7 have all deposed about the seizure of 60 Kgs. of Ganja from the possession of the accused persons. The vehicle in which the Ganja was carried was also seized. Hence the present appeal. 3. During trial, the prosecution examined, as many as, seven witnesses, Rahim Uddin, P.W. 4; Kshitish Chandra Das, P.W.-6 and Hiralal Dey, P.W.-7 have all deposed about the seizure of 60 Kgs. of Ganja from the possession of the accused persons. The vehicle in which the Ganja was carried was also seized. Although the prosecution witnesses have been cross examined we find that there is no meaningful cross examination and the evidence has remained intact and the defence has failed to dislodge the testimony of the officials as well as independent witnesses as regards the recovery and seizure of 60 Kgs. of Ganja from the possession of the accused persons. Further, the quantity of the Ganja seized categorically rules out the possibility of planting. Moreover, in the present case there is nothing on record to show that the police officers had any animus with the accused persons; as a matter of fact, the accused persons are all strangers and their conduct in backing out and reversing the vehicle led to the suspicion of the patrol party with something amidst and the concerned Police Officer, K.C. Das acted promptly, which led to the seizure of the contraband. The trial Court has also considered the report of the F.S.L. to hold that the seized article is Ganja. 4. In the present case, the conviction of the accused Appellant has been challenged on the ground that the seizure Officer, Hiralal Dey, S.I. of Police had no authority to make the seizure and investigate the case and as such in view of the provision of Section 41 and 42 read with Section 57of the NDPS Act, the entire prosecution is liable to be quashed. 5. Learned Public Prosecutor has submitted that the Sub-Inspector of Police was duly authorized in the matter and in support of his submission he has placed before us a copy of the Govt. Notification No. EX. 145/85/290 dated 25th April, 1995. 6. In view of the above, we hold that the investigation in the present case does not suffer from any infirmity in the light of the provisions of Section 41 and 42, read with Section 15 of the NDPS Act. 7. The next submission of the learned Counsel was regarding contravention of the provisions of Sub-clause (2) of Section 42 of the Act. 7. The next submission of the learned Counsel was regarding contravention of the provisions of Sub-clause (2) of Section 42 of the Act. In view of the fact of the present case we find that in the present case the seizure was made in a routine check up and hence this is not a case covered by Section42(2) of the Act. 8. Learned Counsel for the Appellant has also submitted regarding violation of the provisions of Section 55 of the Act. In the present case, we find from the prosecution evidence on record, and more particularly from the evidence of Hiralal Dey, P.W.-7, that the seizure was made on 14.6.2001. This is reflected from the seizure list and other documents on record. P.W.-7 has deposed that after preparation of the list of seizure etc. the seized article was kept at Malkhana of Odharband Police Station and thereafter on 16.6.2001 the seized article was handed over to the Deputy Superintendent of Police and it was kept under the custody of the Reserve Officer, Silchar. The sample of the seized article was sent to the Forensic Science Laboratory. Ext. 7 is the receipt issued by the Director of Forensic Science Laboratory that the sample sent by the Deputy Superintendent of Police (Headquarter) Cachar, Silchar on 16.6.2001 was received by them on 18.6.2001. The sample was sent through messenger and in view of the geographical location and distance involved from Silchar to Guwahati, we find that the messenger did not take any additional time in delivering the sample. The sample so handed over to him on 16.6.2001 can be delivered to Guwahati office on 18.6.2001 only. Section 55 of the Act reads as follows: Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. 9. 9. Learned Counsel for the Petitioner has placed reliance on a decision of the Apex Court in the case of Gurbax Singh v. State of Haryana (2001) 3 SCC 28 , wherein the Apex Court in the facts of the above case held that there was violation of the provision of Section 52, 55 and 57 of the NDPS Act. The Apex Court further held that violation of those provisions would not ipso facto violate the trial or conviction. However, in absence of any evidence, whether the chemical analyzer received the sample with proper intact seals, and in view of the violation of the above provisions, the Court have a doubt whether the sample was sent to the Chemical Examiner or not. In the present case we find that the oral evidence of P.W.-7 as regards the sending of the sample to the Forensic Science Laboratory was never challenged. Moreover, from the report of the Deputy Director of Forensic Science Laboratory, Ext. 5, we find that the package was received by them and it was sealed with the impression of a seal, corresponding with the seal forwarded. This Court in a case relating to the sending of the sample under the Food Adulteration Act (1993) (1) GLR 118; Ratanlal v. State of Assam held that observation of the Public Analyst that the seals of the sample were found intact, is sufficient compliance of the requirement of law. A similar view was taken by the Hon'ble Supreme Court in the case of E.N. Sukumar Nair v. Food Inspector, Mavelikara 1995 Cri.L.J. 3651 as regards the compliance of the provision of Rule 18 of the P.F. Rules. We, therefore, find no force in the submission of the Appellant and the ratio laid down in Gurbax Singh (Supra) is not applicable to the present case. 10. Learned Counsel for the Appellant has further submitted that there was undue delay in sending the sample to the Forensic Science Laboratory and, as such, the Appellants are entitled to the acquittal. Learned Counsel has placed reliance on a decision of this Court in the case of Md. Ayub v. State of Assam, 1998 (1) GLT 65, wherein considering the facts and circumstances of the case and the delay of three days in sending the sample, the Court gave benefit of doubt to the accused. Learned Counsel has placed reliance on a decision of this Court in the case of Md. Ayub v. State of Assam, 1998 (1) GLT 65, wherein considering the facts and circumstances of the case and the delay of three days in sending the sample, the Court gave benefit of doubt to the accused. In the present case, the seizure was made on 14.6.2001 and as per the oral and documentary evidence on record the sample was sealed at the place of occurrence itself and thereafter the sample was sent to the Forensic Science Laboratory on 16.6.2001, i.e. after a gap of one day. The same was kept at Odharband Police Station on the date of seizure and it was sent to the Deputy Superintendent of Police who sent the sample to the Forensic Science Laboratory through Special Messenger. Hence, in the facts and circumstances of the above case we find that there is no delay in sending the sample to the Forensic Science Laboratory. Further there is positive evidence that the seized article was seized and thereafter kept at the Malkhana of the Police Station, as required under law. 11. The next submission of the learned Counsel was in respect of violation of the provision of Section57 of the Act, and Section 57 of the Act reads as follows: Report of arrest and seizure. Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. 12. From the evidence of P.W.-7, we find that the seizure made by him was intimated to his immediate superior officer, i.e. Deputy Superintendent of Police on 16.6.2001 and even the seized article was handed over to him. The seizure was made on 14.6.2001. Thus, there is full compliance of the provision of Section 57 of the Act. 13. In view of the aforesaid we find no merit in the appeals and both the appeals stand dismissed. Appeal dismissed.