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2012 DIGILAW 422 (GAU)

Abdul Salam v. State of Assam

2012-03-30

H.BARUAH

body2012
1. Heard Mr. C. Goswami, learned counsel for the appellant as well as Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam for the State respondent. 2. This appeal is preferred against the judgment and order of conviction and sentence dated 15.2.2003 passed by the learned Special (Sessions) Judge, Darrang, Mangaldai in Special (N) Case No. 18/2001, whereby and whereunder the appellant, Md. Abdul Salam has been convicted under section 20(b)(i) and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1,000 in default, to suffer R.I. for a further period of one month. 3. By this appeal, the legality and correctness of the judgment and order of conviction and sentence has been challenged. The facts involved in this case are that on 27.5.2001 the Excise Party of Mangaldai led by its Inspector, Sri Biren Kumar Deka was engaged in vehicle checking duty at Puniachok, NH-52 in the morning hours. During such check the Excise Party intercepted a passenger bus bearing registration No. AS-12A 5427 and conducted a thorough search of each passenger and their belongings. During such search about 16 kgs. of suspected. 'Ganja' was recovered from the possession of the accused/appellant, Md. Abdul Salam who was a passenger of the said bus. The Excise party took custody of the 'Ganja', arrested the accused and produced before the court for keeping him in judicial custody. The alleged seized 'Ganja' was produced before the Chief Judicial Magistrate, Darrang, Mangaldai and sample of the same was drawn and sent for Chemical Examiner, Excise, Assam for analysis and report. After analysis of the sample submitted analysis report that the sample was 'Ganja' ("Cannabis Indica") and after completion of the investigation, the Excise Inspector submitted an offence report against the accused Abdul Salam under section, 20(b)(i) NDPS Act, 1985. The offence report was submitted before the learned Special (Sessions) Judge at Darrang and after receipt thereof, the learned Special (Sessions) Judge, Darrang framed charge under section 20(b)(i) NDPS to which the appellant pleaded not guilty. Four witnesses were examined by the prosecution. The defence examined none. The defence case is one denial. The trial court taking care of the facts and evidence on record both oral and documentary recorded a finding of guilt of the appellant under section 20(b)(i) of the NDPS Act, 1985 and accordingly convicted the appellant as indicated above. 4. Mr. Four witnesses were examined by the prosecution. The defence examined none. The defence case is one denial. The trial court taking care of the facts and evidence on record both oral and documentary recorded a finding of guilt of the appellant under section 20(b)(i) of the NDPS Act, 1985 and accordingly convicted the appellant as indicated above. 4. Mr. C. Goswami, learned counsel for the appellant before entering into the merit of this appeal has submitted before the court that the learned trial court committed procedural irregularity and for that the judgment and order of conviction and sentence rendered by the trial court cannot sustain in law. In support of his contention, Mr. Goswami has referred to the provision of section 36, more particularly section 36(A)(D) and section 36(C) of the NDPS Act. Mr. Goswami, learned counsel also submitted that the offence report submitted by the Excise Inspector is a complaint within the meaning of section 2(d) of the Cr.PC 1973. Section 2(d), Cr.PC reads as follows: "(b) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." In the Explanation to the section it is indicated as under: "A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant." 5. Admittedly, the investigation was not done by Police Officer rather it was done by an excise official. A report submitted by Police Officer in respect of commission of cognizable offence would fall within the meaning of section 173 of the Cr.PC., section 2(d) of the Cr.PC prohibits to include a report submitted by a Police Officer on the basis of any investigation of an offence committed by known or unknown person. An Excise Inspector is not a Police Officer and, therefore, any report submitted by him after investigation for commission of an offence by an offender/offenders shall be deemed to be a complaint within the meaning of section 2(d) of the Code. An Excise Inspector is not a Police Officer and, therefore, any report submitted by him after investigation for commission of an offence by an offender/offenders shall be deemed to be a complaint within the meaning of section 2(d) of the Code. This aspect of the matter apparently has not traversed through the mind of the trial court and accordingly by deviating the provisions for trial of warrant cases otherwise than a police report tried the appellant and pronounced the judgment of conviction and sentence. Specific provisions are provided in the Code in Chapter XDC of the Code. Sections 244 to 250 provide the procedures of trial of the cases instituted otherwise than on police report. Report being not fall within the purview of section 173 of the Code, the learned trial court ought to have treated the report as a complaint and proceeded with the trial per provisions of Chapter XIX of the Code. Rather it proceeded with the provisions of Chapter XVIII of the Code. Conviction by adapting a wrong procedure awarded to an accused, in law, cannot sustain. The trial court apparently did not resort to the procedure contained in Chapter XIX of the Code. For the offences in NDPS Act, 1985, the Special Court can take cognizance of the offence on police report or upon complaint without commitment of the proceeding. Normally, a Sessions Judge is appointed as Special Judge by the State Government to deal with the provisions of NDPS Act. Sessions Judge cannot take cognizance of the offences under the IPC unless the case is committed. Section 36(A) speaks about the offences triable by Special Courts. Clause (d) of section 36(A) reads as under: - "A special court may, upon perusal of the police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial." 6. Therefore, by this provision a Special Court is authorized to take cognizance of an offence under a police report or on a complaint. A police report is submitted as indicated herein above under section 173 of Cr.PC, while an offence report is submitted under section 190, Cr.PC. Therefore, by this provision a Special Court is authorized to take cognizance of an offence under a police report or on a complaint. A police report is submitted as indicated herein above under section 173 of Cr.PC, while an offence report is submitted under section 190, Cr.PC. Report submitted by the Excise Inspector does not fall within the meaning of section 173 of the Cr.PC it would come under the provisions of section 2(d), Cr.PC and this being the position, in the face of the record, the Special Judge ought to have resorted to the procedure laid down in Chapter XIX treating the report submitted by the Excise Inspector as complaint. 7. Mr. C. Goswami, learned counsel for the appellant, therefore, in view of the wrong assumption of the procedure by the Special Court submits before this court that the impugned judgment and order of conviction and sentence cannot stand in the eye of law and it is liable to be set aside and quashed. 8. Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam for the State respondent, in view of the submission of the complaint by the Excise Inspector before the Special Court also acceded to the view adopted by Mr. C. Goswami, learned counsel for the appellant. Mr. Gogoi agrees that the impugned judgment and order of conviction and sentence rendered by the trial court against the appellant by adopting wrong procedure of trial cannot sustain in law. 9. I have given my anxious consideration to the submissions advanced by learned counsel for both the parties and I am of the considered view that the learned Special Court adopted a wrong procedure of trial of the offence and for that the impugned judgment and order of conviction and sentence cannot sustain. Provisions of the NDPS Act and the Cr.PC clearly indicate the procedures to be adopted when a complaint is filed. 10. For the reasons discussed above, the impugned judgment and order of conviction and sentence is set aside and quashed. The case is remanded back to the learned trial court (Special Judge, Darrang, Mangaldai) to proceed with the trial de novo in accordance with law. 11. Before parting this court likes to indicate that the trial court too wrongly framed the charge. Trial court while proceeding with the trial shall look into the matter and correctly frame it affording an opportunity to the appellant to answer. 12. 11. Before parting this court likes to indicate that the trial court too wrongly framed the charge. Trial court while proceeding with the trial shall look into the matter and correctly frame it affording an opportunity to the appellant to answer. 12. It is submitted by Mr. C. Goswami, learned counsel for the appellant that the appellant is on bail granted by the learned trial court. 13. The appellant is directed to appear before the learned trial court on 23rd April, 2010. 14. Send down the LCR forthwith. _____________