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2008 DIGILAW 418 (GAU)

Baba Saikia v. State of Assam

2008-06-05

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 25.09.2007, passed, in Special Case No. (1) of 2002, by the learned Sessions Judge, North Lakhimpur, whereby the appellant stands convicted under Section 18(a) of the Narcotic Drugs and Psychotropic Substances Act 1985 (in short, 'the NDPS Act') and sentenced to suffer rigorous imprisonment for six months and pay fine of Rs. 2,000/- and, in default of payment of fine, undergo rigorous imprisonment for a further period of one month. 2. I have heard Mr. G. Uzir, learned Counsel for the appellant, and Mr. V.S. Singh, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution is, in brief, thus: On 21.06.2002, a police party, headed by Sub-Inspector, Subhan Chandra Das, In-Charge, Narayanpur Out Post, which falls under Bihpuria Police Station, searched the house of the accused-appellant and, having found 10 grams of opium, kept concealed in the house, and another 100 grams of opium, kept beneath a banana tree in his courtyard, the police officer, vide seizure list (Ext.3), seized, in the presence of witnesses, the said opium, collected sample there from and sent the sample to Forensic Science Laboratory for chemical analysis. The chemical analysis confirmed that the seized articles were opium. The police, then, on completion of investigation, submitted charge-sheet for prosecution of the accused under Section 18(a) of the NDPS Act. 4. During the trial, a charge, under Section 18(a) of the NDPS Act, was framed against the accused-appellant, but the accused-appellant pleaded not guilty thereto. In support of their case, prosecution examined as many as 11 (eleven) witnesses including the police officer, who had allegedly found opium and made the seizure. The learned trial Court, having found the accused-appellant guilty of the offence charged with, convicted him accordingly and passed the sentence against him as mentioned hereinabove. 5. At the time of hearing of the present appeal, it has been pointed out, on behalf of the accused-appellant, that the witnesses to the alleged seizure have deposed to the effect that they had not seen the places from where black colour substances, seized by the police, were found. 5. At the time of hearing of the present appeal, it has been pointed out, on behalf of the accused-appellant, that the witnesses to the alleged seizure have deposed to the effect that they had not seen the places from where black colour substances, seized by the police, were found. It is contended, on behalf of the accused-appellant, that in view of the fact that the witnesses to the alleged search and seizure have not supported the evidence given by PW9 (Sub-Inspector, Subhan Chandra Das), who claims to have searched the house of the accused-appellant and made the seizure, the learned trial Court ought not to have convicted the accused-appellant on such weak and unreliable nature of evidence on record. 6. While considering the present appeal, what needs to be pointed out is that though from the house of the accused-appellant, opium, weighing 10 grams and 180 grams, had been allegedly recovered from two different places, the learned trial Court has found/that the prosecution could prove only recovery of the 10 grams of opium from the possession of the accused-appellant and has accordingly convicted the accused-appellant. In this appeal, therefore, this Court is concerned only with the question as to whether 10 grams of opium were found in the possession of the accused-appellant. 7. While considering the above aspect of the case, what is pertinent to note is that it is the police officer (PW9), who claimed to have searched the house of the accused and having, found 10 grams of opium, kept concealed in the house of the accused-appellant, seized the same. Though it is true, as has been pointed out, on behalf of the appellant, that the evidence given by PW9 does not indicate as to where the said opium was found, the fact remains that a minute scrutiny of the cross-examination of PW9 shows that no material part of his evidence was ever disputed by the defence. There was not even a suggestion put to PW9 that the house of the accused had not been searched and/or no opium was found there from or seized from there. It was also not the case of the defence that the house, where the opium was allegedly found, had been in use and occupation of any one other than the accused-appellant and/or that the said house was not in the exclusive possession of the accused-appellant. It was also not the case of the defence that the house, where the opium was allegedly found, had been in use and occupation of any one other than the accused-appellant and/or that the said house was not in the exclusive possession of the accused-appellant. Thus, the evidence given by PW9 to the effect that he, having found opium from the house of the accused, had seized the same, remained wholly unassailed and unshaken. Viewed in this light, there can be no escape from the conclusion that the search and seizure, as deposed to by PW9, were convincingly proved. 8. It has also been pointed out, on behalf of the accused-appellant, that the manner of collection of the sample and the Public Analysis's report do not give any positive indication that it was the substance seized from the house of the accused, which was found, on chemical analysis, to be opium. Without entering into the question as to whether this contention of the appellant is correct or not, what needs to be pointed out is that the accused had not even denied, while cross-examining PW9, that the opium, as deposed to by PW9, had been seized from him. In such circumstances, the conclusion reached by the learned trial Court to the effect that the accused-appellant was found in possession of opium cannot be said to be without legal and valid ground. It is trite that even in criminal law, what is not denied must be treated to be admitted. Thus when the accused-appellant himself does not deny that he was found in possession of opium and when there is no material on record, even remotely suggesting, that what was seized might not have been opium, there could have been no escape from the conclusion that the accused-appellant had been found in possession of opium. This Court, therefore, sees no reason to interfere with the conviction of the accused-appellant. 9. Coming to the sentence, which has been passed against the accused-appellant, it is not in dispute, as submitted, on behalf of the accused-appellant, that the accused-appellant has already deposited the fine, which has been imposed by the learned trial Court. It is also not in dispute that the accused-appellant has completed all, but one day of imprisonment to which he has been sentenced. 10. It is also not in dispute that the accused-appellant has completed all, but one day of imprisonment to which he has been sentenced. 10. Considering, therefore, the matter in its entirety and in the interest of justice, while the conviction of the accused-appellant is maintained, his sentence is reduced to the period of imprisonment already undergone by him 11. Let the accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case. 12. With the above observations and directions, this appeal shall stand disposed of. 13. Send back the LCRs.