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2012 DIGILAW 1095 (GAU)

Prasanta Roy v. State of Assam

2012-09-13

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. By this common judgment and order, we propose to dispose of both these appeals. These appeals are directed against the judgment and order, dated 24.05.2007, passed, in Special (N) Case No. 19/2005, by the learned Special Judge, Darrang, Mangaldoi, convicting the accused-appellants under Sections 20(b)(ii)(C) of the NDPS Act and sentencing each of them to undergo rigorous imprisonment for 20 years and pay fine of Rupees one lakh and, in default of payment of fine, suffer rigorous imprisonment for a further period of five years. Aggrieved by their conviction and the sentence passed against them, the three appellants have preferred these appeals. 2. We have heard Mr. B.M. Choudhury, learned counsel for the appellant in Criminal Appeal No. 133/2007, which has been preferred by accused-appellant, Prasanta Roy, and Mr. K. Goswami, learned Amicus Curiae, in Criminal Appeal No. 109(J)/2007, which has been preferred by accused-appellants, Lakhan Mech and Dhruba Sonar. We have also heard Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 3. The case of the prosecution, as emerged at the trial, may, in brief, be described thus: On 18.02.2005, when a meeting of the Assam Sahitya Sabha (i.e., a literary organization of Assam) was held at Sipajhar and a procession of the said Sabha was in progress, vehicles, coming toward Mangaldoi, had to be stopped on one side of the road. While the vehicles were being so stopped, one TATA Sumo vehicle, bearing Registration No. AS-30-1794, attempted to pass and overtake the said procession, which carried the monogram of POLICE. The occupants of the said vehicle were in khakis (a kind of cloth used for the purpose of making uniform of police personnel) and wearing the badges of RPF with blue beret (caps). On suspicion developing in the mind of the Superintendent of Police, Darrang, who was personally present at the said place, he asked the occupants of the said vehicle to show their identity cards. The occupants of the vehicle, then, reacted by saying as to why their identity cards were necessary and tried to drive away the vehicle. They were, then, asked by the Superintendent of Police (PW7) to disembark from the vehicle. The police personnel, accompanied by PW7, opened the door of the vehicle and tried to find out what was inside the vehicle. The police personnel included PW1 and PW2, PW1 being the PSO of PW7. They were, then, asked by the Superintendent of Police (PW7) to disembark from the vehicle. The police personnel, accompanied by PW7, opened the door of the vehicle and tried to find out what was inside the vehicle. The police personnel included PW1 and PW2, PW1 being the PSO of PW7. As soon as the door of the vehicle was opened, police personnel smelt Ganja (cannabis) and they also noticed packets lying covered by polythene inside the vehicle. On being counted, as many as 47 packets were found. The Superintendent of Police, Darrang, (PW7), then, informed the Officer-in-Charge, Sipajhar Police Station, over wireless and handed over the vehicle along with the occupants of the said vehicle, namely, Prasanta Rai, Dhruba Sonar and Lakhan Mech (i.e., the present appellants), and one Gakul Mech, who absconded during trial. The said packets were, then, seized not only in presence of the police personnel, but also some unofficial persons, such as, PW4, PW5 and PW9. A written Ejahar was, then, lodged at Sipajhar Police Station, on 22.02.2005, by PW2, who is a constable. Treating the said Ejahar as First Information Report (FIR), Sipajhar Police Station Case No. 26/2005, under Sections 170/ 171 IPC read with Section 20(b) of the NDPS Act, was registered against the said four accused persons. During the course of investigation, the seized packets were weighed and found to contain 464 KGs of suspected Ganja. A sample from the seized materials was drawn and sent to Forensic Science Laboratory, Guwahati, Assam (in short, 'the FSL'). A report, in this regard, was received from the Scientific Officer, Drugs and Narcotic Division, FSL, Assam, which shows that the sample of seized materials, sent to the FSL, had given positive test for cannabis. On completion of investigation, police laid charge-sheet against the present appellants and the absconding accused, Gakul Mech, under Sections 170/ 171 IPC read with Section 20(b)(ii)(C) of the NDPS Act. 4. During trial, when a charge, under Section 20(b)(ii)(C) of the NDPS Act, was framed against all the four accused aforementioned, they pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 10 (ten) witnesses. The accused were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, they denied to have committed the offence, which was alleged to have been committed by them, the case of defence being that of denial. 5. In support of their case, prosecution examined altogether 10 (ten) witnesses. The accused were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, they denied to have committed the offence, which was alleged to have been committed by them, the case of defence being that of denial. No evidence was adduced by the defence. 6. However, having found the present appellants guilty of the offence, which they had been charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence passed against them, the three appellants have preferred these appeals. 7. While considering the present appeals, it needs to be noted that according to the evidence of PW1, who, admittedly, was functioning as PSO of the then Superintendent of Police, Darrang, Mangaldoi, on 18.2.2005, he accompanied Superintendent of Police, Darrang, to a meeting of Assam Sahitya Sabha, because the Superintendent of Police wanted to oversee the arrangement regarding law and order and, on that day, a procession was taken out by the said Sabha and while the procession was moving, movement of the vehicles, coming from the direction of Mangaldoi, was stopped and, at that point of time, a TATA Sumo vehicle, bearing Registration No. AS-30-1794, tried to move ahead in defiance of the order and when the Superintendent of Police, Darrang, (PW7), ordered the vehicle to be stopped, the occupants of the vehicle said that it was a police vehicle, whereupon Superintendent of Police, Darrang, (PW7), asked the identity cards of the occupants and the occupants of the vehicle reacted by saying as to why identity cards were being required. Thereafter, according to the evidence of PW1, the police personnel asked the occupants to get off the vehicle, but the occupants refused and, then, the door of the vehicle was opened in order to find out as to what was there inside the vehicle, but as soon as the door was opened, smell of Ganja came out. PW1 has asserted that he saw some packets, covered by polythene inside the vehicle, and, eventually, 47 packets of Ganja were found inside the vehicle along with some articles. It is in the evidence of PW1 that Superintendent of Police, Darrang, (PW7), then, summoned Officer-in-Charge, Sipajhar Police Station, over wireless and handed over the accused persons to him. 8. PW1 has asserted that he saw some packets, covered by polythene inside the vehicle, and, eventually, 47 packets of Ganja were found inside the vehicle along with some articles. It is in the evidence of PW1 that Superintendent of Police, Darrang, (PW7), then, summoned Officer-in-Charge, Sipajhar Police Station, over wireless and handed over the accused persons to him. 8. Though PW1 was cross-examined by the defence, nothing could be elicited to show that his evidence was untrue or false. Except denying the fact that the four accused-persons were the ones, who had been apprehended from the said TATA Sumo, there was no denial of the material aspects of the evidence of PW1. Thus, the evidence of PW1 remained wholly unshaken and intact on all material aspects. 9. Close on the heels of the evidence of PW1, PW2, who is a constable, has deposed that on 18.02.2005, when he was on duty at Sipajhar Narikali Mandir, he saw a TATA Sumo, at about 11.30 am, with four occupants coming towards Mangaldoi at a high speed, the registration number of the vehicle being AS-30-1794 and the vehicle bore the sign of Police and one of the occupants was wearing the uniform of DSP, one occupant was in the uniform of Havildar, while the remaining two were wearing uniforms of constables, the driver of the vehicle being claded in constable's uniform. PW2 has deposed that a procession of Assam Sahitya Sabha was in progress and the police personnel were stopping the vehicles, because of the procession and though they asked the said TATA Sumo vehicle to stop, the said vehicle did not stop and, at that time, Superintendent of Police, Darrang, (PW7), arrived there and, at first, they asked the occupants of the vehicle to get out from the vehicle and when they did not carry out the order, Superintendent of Police, Darrang, (PW7) himself asked them to come down and when the occupants, according to the evidence of PW2, did not comply with the direction given by the Superintendent of Police, Darrang, (PW7), the police personnel forcibly opened the door of the vehicle and smell of Ganja emanated from inside the vehicle, whereupon Superintendent of Police, Darrang, (PW7) summoned the Officer-in-Charge, Sipajhar Police Station, and handed over the vehicle along with the occupants to him. PW2 has further deposed that with regard to the said occurrence, he lodged an Ejahar on 20.02.2002, Ext. 1 being the said Ejahar. 10. Explaining the delay in lodging the Ejahar, PW2 has deposed that since he had been busy, on duty, in connection with Assam Sahitya Sabha, he could not promptly lodge the Ejahar. Strangely enough, the defence, while cross-examining PW2, did not dispute any part of his evidence. The evidence of PW2, thus, remained wholly intact and unimpeached. 11. Broadly in tune with the evidence of PW1 and PW2, PW3 has deposed that on 18.02.2005, he was functioning as driver of Superintendent of Police, Darrang, (PW7), and he had driven Superintendent of Police, Darrang, (PW7), to the venue of Sipajhar Sahitya Sabha and when they were waiting on the road near Narikoli temple, a TATA Sumo vehicle, bearing Registration No. AS-30-1794, came from the direction of Mangaldoi. Upon the vehicle, POLICE was written and the occupants were in police uniform, one of the occupants having three stars on his shoulder showing that he was of the rank of DSP and the rest were in khakis. It is in the evidence of PW3 that the said TATA Sumo was stopped and the occupants were asked to show their identity cards, whereupon the person, in the uniform of DSP, introduced himself as DSP and asked as to why identity card was required. It is also in the evidence of PW3 that the Superintendent of Police, Darrang, (PW7), forcibly opened the door of the vehicle and smell of Ganja came from inside the vehicle. PW3 has also deposed that Superintendent of Police, Darrang, (PW7), then, called the Officer-in-Charge, Sipajhar Police Station, on wireless. 12. Even during cross-examination of PW3, nothing material could be elicited by the defence to show that what he had deposed was false or untrue. In fact, in his cross-examination, PW3 has asserted that three persons, who were present in the dock at the trial, were among the four persons present in the said vehicle on the day of the occurrence. Having, thus, not been shaken, in any manner, the evidence of PW3, the evidence of PW3 has to be treated as reliable. 13. In fact, in his cross-examination, PW3 has asserted that three persons, who were present in the dock at the trial, were among the four persons present in the said vehicle on the day of the occurrence. Having, thus, not been shaken, in any manner, the evidence of PW3, the evidence of PW3 has to be treated as reliable. 13. Thus, a combined reading of the evidence of PW1, PW2 and PW3, who are all police personnel, clearly demonstrate that on 18.02.2005, when procession of the said Sabha was in progress near Narikoli temple, a TATA Sumo, as described above, came from the direction of Mangaldoi and on the top of the said vehicle, POLICE was written and, as all vehicles coming from the direction of Mangaldoi, were being stopped, the said TATA Sumo was also asked by police personnel to stop. One of the occupants of the said TATA Sumo was in the uniform of DSP, one was in the uniform of Havildar and the remaining two were in the uniforms of constable. On their failure to produce identity cards, when the door of the vehicle was opened, smell of Ganja emanated from inside the vehicle, which contained as many as 47 packets of Ganja covered by polythene. 14. In the light of what have been pointed out above, when the evidence of PW4, PW5 and PW9, who have been examined by the prosecution as witnesses to the alleged seizure of the said 47 packets of Ganja, is examined, it transpires that the evidence of none of these witnesses show that seizure was made in presence of these three witnesses. Notwithstanding, however, the fact that PW4, PW5 and PW9, who are unofficial and independent witnesses do not corroborate the evidence of PW1, PW2 and PW3, the fact remains that the evidence of PW1, PW2 and PW3 having remained, for the reasons already discussed above, unshaken, their evidence cannot be discarded or disbelieved merely because seizure was not made, according to the evidence of PW4, PW5 and PW9, in their presence. 15. The above discussion of the evidence on record brings us to the evidence of PW7, who was, at the relevant point of time, Superintendent of Police, Darrang. 15. The above discussion of the evidence on record brings us to the evidence of PW7, who was, at the relevant point of time, Superintendent of Police, Darrang. His evidence is that on 18.02.2005, he, along with his staff, went to Narikoli to oversee the welcoming of the new President of Assam Sahitya Sabha and as a procession was in progress, vehicles, coming from the direction of Mangaldoi, were stopped and among the vehicles, which were so stopped, there was a TATA Sumo, which bore the monogram of POLICE. One of the occupants of the vehicle, according to the evidence of PW7, was in DSP's uniform, one was wearing the uniform of Havildar and the rest two occupants were in the uniform of constable. Suspecting the real identity of the occupants, PW7 asked for their identity cards, but the occupants of the vehicle objected by saying as to why identity cards were required. It is in the evidence of PW7 that the occupants were, then, asked to disembark from the vehicle and, eventually, 47 packets of Ganja were recovered from the vehicle. 16. During cross-examination, PW7 has asserted that the accused tried to escape with the vehicle, but they could not flee away, because of the procession. This assertion of PW7 went wholly unchallenged by the defence. Thus, the evidence of PW7 lends further credence to the evidence of PW1, PW2 and PW3. 17. When we turn to the evidence of Investigating Officer (PW10), who was, at the relevant point of time, Officer-in-Charge, Sipajhar Police Station, we notice that according to his evidence, on 18.02.2005, he seized one TATA Sumo vehicle, bearing Registration No. AS-30-1794, with 47 packets of Ganja wrapped by polythene weighing about 4 quintal 45 KG, one Khaki colour jacket including badge of DSP of RPF, four numbers of Cap, four khaki colour shirts, four long pants (i.e., trousers), one red belt, three khaki colour jersey, one attache, one red colour CI sheet plate, where the word POLICE was written, along with the four accused, who were occupants of the said vehicle. 18. What is important to note, in the evidence of Investigating Officer, is that he took sample of the seized substance, which according to him (PW10), was Ganja and sent the same to FSL and a report, which is Ext. 18. What is important to note, in the evidence of Investigating Officer, is that he took sample of the seized substance, which according to him (PW10), was Ganja and sent the same to FSL and a report, which is Ext. 5, was received, in this regard, from one Sri D.J. Hazarika, Scientific Officer, Narcotic Division, FSL, Assam, and, then, he filed charge-sheet against the accused. 19. The fact that Ext. 5 is the report in respect of the sample drawn from the seized material was not disputed at the trial. What was denied was that no Ganja was recovered and seized from the possession of the accused. 20. Appearing on behalf of the appellant, Prasanta Roy, Mr. B.M. Choudhury, learned counsel, referring to the case of Heera Lal Vs. State, reported in 1994 (3) Cri 10, has submitted that the Scientific Officer of the Drugs and Narcotic Division, FSL, is not an authorized person in terms of Section 293 Cr. PC and, in the absence of examination of Sri D.J. Hazarika aforementioned, the correctness of the contents of the report could not have been said to have been legally determined. 21. There can be no dispute and, in fact, there is no dispute before us that Section 293 Cr.P.C. makes reports from authorized persons admissible in evidence without their examination, such persons being a Chemical Examiner or Assistant Chemical Examiner to the Government, the Chief Controller of Explosives, the Director of the Finger Print Bureau, the Director, Haffkeine Institute, Bombay and the Director [Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory, the Serologist to the Government, and any other Government Scientific Expert. 22. We do not find that Scientific Officer, Drugs and Narcotic Division, FSL, is one of the persons mentioned in Section 293 Cr.P.C. Though Ext. 5 has been proved as a report from the FSL, the defence was not provided with the liberty to determine the correctness of the report, because the said D.J. Hazarika was not examined as a witness. 23. 5 has been proved as a report from the FSL, the defence was not provided with the liberty to determine the correctness of the report, because the said D.J. Hazarika was not examined as a witness. 23. What surfaces from the above discussion is that seizure of the packets, allegedly containing Ganja, were proved as indicated above, at the trial, to have been found and seized from a vehicle, which had been depicted as a vehicle belonging to the police, and the present appellants along with the accused, were occupants of the said vehicle projecting themselves falsely as police personnel. The fact that the sample was drawn from such seized packets and the same were sent to the FSL and Ext. 5 is the report in respect of the said sample also stand, in the light of what have been discussed above, proved. What has not been proved is that the seized material was or was not Ganja. For this purpose, the prosecution relied on Ext. 5. In the absence of examination of the person, who had given the said report (Ext. 5), as a witness, at the trial, it is frightfully difficult to hold and impossible to conclude that the seized article was Ganja (Cannabis). This is a serious omission on the part of the prosecution and when the prosecution had failed to examine said D.J. Hazarika, the learned trial Court had ample power to summon the author of the report (Ext. 5). 24. In the circumstances, as indicated above, if the report is not proved, in accordance with law, it will, in our considered view, cause prejudice to both, prosecution as well as the defence. Examination of the said D.J. Hazarika is, therefore, imperative. 25. We may also pause here to point out that Mr. Goswami, learned Amicus Curiae, has referred to the case of Jitendra & Anr. Vs. State of M.P., reported in (2004) 10 SCC 562 , to show that the seized materials, in the present case, had not been produced in the Court and the case must fail. We find, in the peculiar facts and circumstances of the present case, this argument not very convincing inasmuch as the factum of seizure of the packets has not been in dispute at the trial. We find, in the peculiar facts and circumstances of the present case, this argument not very convincing inasmuch as the factum of seizure of the packets has not been in dispute at the trial. What was in dispute was whether the seized material contained Ganja or not and whether the present appellants were occupants of the vehicle aforementioned. For the Court to arrive at a fair and just decision, it would be, in the interest of justice, if the conviction of the accused-appellants and the sentence passed against them are set aside and the case is remanded to the learned trial Court for summoning the said D.J. Hazarika as a court witness. 26. We may pause here to point out that it has been rightly indicated by Mr. Choudhury, learned counsel, that as far as examination of the accused-appellants, under Section 313 Cr.P.C., are concerned, the same are highly inappropriate inasmuch as the entire evidence of one witness has been assembled in one question and put to each of the accused-appellants. This is certainly undesirable and does not, strictly speaking, satisfy the requirement of Section 313(1b) Cr.P.C. This practice has been deprecated by this Court in the past as well. We would have considered remanding the case for appropriate examination of the accused-appellants under Section 313 Cr.P.C. too; but we refrain from doing so, because of the fact that we have carefully gone through the memorandum of appeal, which has been preferred by the appellants and we do not find that the appellants have expressed that any prejudice has been caused to them for their inappropriate examination under Section 313 Cr.P.C. 27. Because of what have been discussed and pointed out above, both these appeals partly succeed. The impugned judgment and order of conviction and sentence are hereby set aside and the case is remanded to the learned trial Court for procuring the presence of said D.J. Hazarika as Court witness and examine him for the purpose of proving the contents of his report (Ext. 5) with liberty given to the prosecution as well as the defence to put such question(s) to the witness as may be deemed necessary. 5) with liberty given to the prosecution as well as the defence to put such question(s) to the witness as may be deemed necessary. It is further clarified that if any incriminating evidence emerges from the examination of the witness aforementioned, the learned trial Court would appropriately examine the accused-appellants, in this regard, under Section 313(1b) Cr.P.C. It is, therefore, directed that the trial shall be proceeded expeditiously and concluded, preferably, within a period of three months from the date of receipt of the records of the case by the learned trial Court. 28. Though we have set aside the conviction and sentence of the accused-appellants, they shall be detained in custody until the time their trial is concluded. 29. Let the learned Amicus Curiae be paid a sum of Rs. 5,000/- for his assistance rendered to the Court. 30. With the above observations and directions, this appeal shall stand disposed of. Registry shall, forthwith, send back the LCR with a copy of this judgment.