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2010 DIGILAW 617 (GAU)

Onyx Maiphok v. State of Assam

2010-08-19

B.D.AGARWAL

body2010
JUDGMENT B.D. Agarwal, J. 1. All the aforesaid four appeals are arising out of the common judgment and order dated 21.11.2008 passed by the learned Sessions Judge, Goalpara in Sessions (Spl.) Case No. 03 of 2007, whereby the learned Sessions Judge has convicted six accused persons under Section 20(1)(b) of the NDPS Act, 1985. On such conviction the Appellants have been sentenced to undergo rigorous imprisonment for five years and also to pay fine of Rs. 5,000 each with default stipulation of one month simple imprisonment. Being aggrieved with the conviction, all the six convicts have preferred the aforesaid appeals. 1.1 Criminal Appeal No. 34 of 2008 has been filed by the convict Shri Onyx Maiphok; Criminal Appeal No. 46 of 2008 has been field by the convict Shri Augustine Mao and Criminal Appeal No. 47 of 2008 has been filed by the convict Shri Jyoti Prakash Ghising and Criminal Appeal No. 70 of 2009 has been filed convicts Kumar Lama @ Tamang, Kuber Chetry and Shyam Shah. In this way all the six convicts are before me. 1.2 Since the facts of all the appeals are one and same and since the impugned judgment has been challenged on identical issues, I propose to dispose of all the four appeals by this common judgment. 2. The Criminal Revision was suo motu registered vide order dated 2.7.2008, passed in Criminal Appeal No. 34 of 2008 for the purpose of conviction under appropriate provisions of law and also awarding appropriate sentence, in the event of dismissal of appeals. 3. Before examining the legality and correctness of the impugned judgment, it would be just and proper to have a glance over the facts which led to the apprehension and conviction of the Appellants. The facts are summarised below: In the night of 20.3.2007, a police patrol party noticed the Appellants, Kumar Lama, Onex Maiphok and Jyoti Prakash Ghising loitering on National Highway No. 37 near Bokakhat Market and suspecting them to be car lifters brought them to Bokakhat Police Station. During interrogation, the aforesaid Appellants disclosed that they were on way to Digboi for filling LPG cylinders in truck No. MN-01/6327. To ascertain the truth of the aforesaid fact the police officers went in search of the truck, which was found parked in front of a Hotel, named as "Pranjal Dhaba". During interrogation, the aforesaid Appellants disclosed that they were on way to Digboi for filling LPG cylinders in truck No. MN-01/6327. To ascertain the truth of the aforesaid fact the police officers went in search of the truck, which was found parked in front of a Hotel, named as "Pranjal Dhaba". The remaining two Appellants, namely, Kuber Chetry and Shyam Shah were also found standing on the road and they were also picked up. Thereafter the truck and the accused persons were brought to the police station and it was gathered that 100 polythene packets, in the shape and colour of LPG cylinders containing ganja were loaded therein. Thereafter the Ganja was weighed and it came to be 3147 kgs. and it was formally seized vide Ext. 1. Thereafter samples of the seized articles were also taken from the containers and sent for chemical examination at FSL Guwahati. Having received the positive report that the seized article was ganja, charge sheet was submitted and the Appellants were accordingly tried. 4. The defence case was of total denial and no evidence was proffered. On the other hand, altogether eight witnesses were examined by the prosecution. The witnesses included police officers, labourers, who were engaged to unload the truck, owner of weighing scale and chemical analyst. 5. The learned Counsel for the Appellants submitted that the Appellants were apprehended, challaned and finally convicted merely on suspicion, and without any legal evidence. It was contended that the prosecution miserably failed to prove that the Appellants were in conscious possession of narcotic drugs. In support of this submission, learned Counsel relied upon various judgments of the Hon'ble Supreme Court rendered in Avtar Singh v. State of Punjab (2002) 7 SCC 419 ; State of Punjab v. Balkar Singh (2004)3 SCC 582 : (2004) 5 SCC 151 and in the case of State of Punjab v. Hari Singh, 2009 AC 233 6. Learned Counsel for the Appellants also contended that, mere presence of the accused persons near the piece of recovery of the articles is not enough to involve the accused in drug trafficking. In support of this submission, learned Counsel for the Appellants relied upon another judgment from the Apex Court rendered in the case of Ismailkhan Aiyubkhan Pathan v. State of Gujarat (2000) 10 SCC 257 . 7. In support of this submission, learned Counsel for the Appellants relied upon another judgment from the Apex Court rendered in the case of Ismailkhan Aiyubkhan Pathan v. State of Gujarat (2000) 10 SCC 257 . 7. Apart from challenging direct or conscious possession of the narcotic drugs by the Appellants, the learned Counsel also submitted that there was another infirmity in the conviction inasmuch as the police officer who had detected the offence and lodged the FIR himself had completed the investigation and submitted charge sheet, which is not permissible. The next point raised by the learned Counsel for the Appellants was that examination of the accused persons under Section313, Code of Criminal Procedure, was also not proper inasmuch as no specific and clear question was put to them regarding possession of ganja. 8. The question relating to procedural infirmities in the investigation and recording 313 statements do not require lengthy discussion. In the case of State of Tamil Nadu v. Jayapaul (2004) Cri. LJ 1819 and S. Jeevanantham v. State of Tamil Nadu (2004) Cri. LJ 3834, the Hon'ble Supreme Court has made it clear that it is not the universal rule that the police officer who detects the offences and lodges initial FIR cannot complete the investigation and submit the charge sheet. In this case the earlier judgment of the Hon'ble Supreme Court, rendered in the case of Megha Singh v. State of Haryana AIR 1995 SC 2339 has been explained. Hence, the plea taken by the Appellants regarding defective investigation is untenable, more so, when no plea of mala fide investigation was raised in the trial court. Besides this, the learned Counsel for the Appellants also could not satisfy as to how the Appellants were prejudiced for completing the investigation by the same police officer who had lodged the FIR. Hence, the aforesaid argument is hereby rejected. 9. With regard to the questioning of the Appellants under Section 313, Code of Criminal Procedure, I find that all the incriminating materials were put to the accused persons. Apparently, ganja was not directly recovered from the possession of the accused persons. Hence, there could not have been any question that ganja was recovered from their possession. In other words, the ganja was recovered from the truck in polythene packets and the said question was put to the accused persons. Apparently, ganja was not directly recovered from the possession of the accused persons. Hence, there could not have been any question that ganja was recovered from their possession. In other words, the ganja was recovered from the truck in polythene packets and the said question was put to the accused persons. However, since the Appellants have been convicted on the principle of conscious possession, it would have been just and proper to put a specific question to each of the accused persons that they had the knowledge that large quantity of ganja was being transported illegally in the truck in which they were travelling. Be that as it may, since the appeals are being disposed of on the question whether the accused persons were in conscious possession of ganja or not, I am not inclined either to remand the case for reexamination the accused persons under Sections 313, Code of Criminal Procedure nor am I prepared to declare the impugned judgment as unsustainable in law for not putting a specific question of conscious possession. 10. Coming to the main ground of the Appellants that despite there being no iota of evidence that either the contraband drug belonged to the Appellants or that they were in conscious possession of the same the Appellants have been convicted at random. I agree with the contentions of the learned Counsel for the Appellants. Admittedly, neither the owner of the hotel nor the owner and driver of the truck were either interrogated by the investigating officer nor cited them as witnesses in the charge sheet to make an attempt to give corroborative evidence that all the Appellants were travelling in the truck with due knowledge of transportation of ganja. At least the examination of owner and driver of the truck would have gone a long way to prove the fact that the Appellants were in any way connected with drug trafficking or were total innocent. I have already noted in this judgment that all the six Appellants were apprehended by the police from the road. Even if they would have found traveling in the truck, it would not have been sufficient for the prosecution to say that they were in conscious possession of the contraband drug. In that eventuality also the prosecution would have required to bring some additional evidence to prove their involvement in drugs trafficking. Even if they would have found traveling in the truck, it would not have been sufficient for the prosecution to say that they were in conscious possession of the contraband drug. In that eventuality also the prosecution would have required to bring some additional evidence to prove their involvement in drugs trafficking. Unfortunately, the investigation was conducted in a slip-shod manner and the accused persons were challaned without making any serious effort to apprehend the owner and driver of the truck, far less making any effort to ascertain the owner of ganja and its destination, etc. Besides this, neither the accused persons were produced before a Judicial Magistrate to record their confessional statements under Section 164, Code of Criminal Procedure nor the owner and driver of the truck were produced in the court as witnesses. Had these few steps been taken by the Investigating Officer, there would have been no difficulty for me to affirm the conviction. 11. In the case of Murlidhar Soni (supra), the son was driving a scooter and his father was a pillion rider and carrying few kgs. of ganja in a cloth bag. In this situation also the Hon'ble Supreme Court has held that the son, who was driving the scooter, cannot be said to have conscious possession of ganja and his acquittal was approved. In the case of Balkar Singh (supra), the accused persons were found sitting on a cluster or bags kept in a field, containing large quantity of poppy husks. Despite that the Apex Court has approved the acquittal of the accused persons holding that there was no investigation as to how the strangers (accused persons) had transported 100 bags of poppy husks to the place of recovery nor the prosecution adduced any evidence about their ownership. In the case of Avtar Singh (supra), the accuseds were traveling in a truck and the bag, over which they were found sitting, was containing narcotic drug and in this case also it has been held that the accused cannot be said to be in conscious possession of the narcotic drug. Their Lordships have held that possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Their Lordships have held that possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. While acquitting the accused persons, their Lordships have further observed that the persons who were merely sitting on the bags, in absence of prove and nothing more, cannot be presumed to be in possession of the goods. In the case of Hari Singh (supra), the Hon'ble Supreme Court was examining a case wherein three men and two women were found sitting on the bags, containing narcotic drugs. Their Lordships have held that the word "conscious" means awareness about a particular fact and it is a state of mind which is deliberate or intended. Their Lordships have further observed that to hold a person in "conscious possession" it is not necessary to prove that he was found in physical possession of offending articles but it has to be proved that such person had constructive knowledge of such an article and had the power and control over it. Having said so, the acquittal of the accused persons for possessing 30 kgs, of poppy husk was upheld. 12. In the case before me, the factual scenario is little better. Not a single Appellant was found sitting in the truck that was carrying ganja. In the case of State of Maharashtra v. Sukdeo AIR 1992 SC 2100 and in many other judicial pronouncements it has been held that more stringent is the provision of conviction more rigorous investigation and trial is necessary. Besides this, in the case of Ismailkhan Aiyubkhan Pathan (supra), it has been held that mere presence of a person at the place of recovery is not sine qua non of his involvement in the offence. It is also the settled law that suspicion, howsoever grave cannot take the place of proof. Even if moment of Appellants at the place of recovery in suspicious manner is considered to be an adverse circumstance that is not enough to affirm their conviction in absence of corroborative additional incriminating circumstances. 13. In view of the aforesaid legal principles laid down by the Hon'ble Supreme Court, I am constrained to hold that the evidence laid before the trial court were not enough to convict the accused persons. 13. In view of the aforesaid legal principles laid down by the Hon'ble Supreme Court, I am constrained to hold that the evidence laid before the trial court were not enough to convict the accused persons. In other words, I hold that it is a fit case wherein the extreme benefit of doubt can be given. 14. In the result, the impugned judgment is hereby set aide. The Appellants, who are languishing in jail since the date of their arrest are hereby acquitted and they shall be set at liberty forthwith, unless wanted in any other case. 15. In view of acquittal of the Appellants, the suo motu criminal revision for modification of the convection and sentence also stands disposed of. 16. The learned Sessions Judge is directed to pass necessary orders for destruction of seized narcotic drugs immediately in accordance with law.