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2012 DIGILAW 572 (GAU)

Ganesh Chetry v. State of Assam

2012-05-08

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. This appeal is against the judgment and order dated 21.6.07 rendered by the learned Special Judge, Darrang, Mangaldoi in Special (N) Case No. 10/04 whereby the appellants were convicted under Section 20(b)(ii)(C) of the NDPS Act and sentenced to undergo R.I. for 10 years with fine of Rs. I lac (Rupees one lakh) each, in default, R.I. for 2 years each. The appellants are presently serving sentence and they have preferred this appeal from jail through jail authority. Briefly stated, the facts of the case are as follows : While S.I., B.S. Tiwari, Officer Commanding, E/96 Bn., CRPF, Camp, Harisinga under P.S. Paneri, along with staff, was patrolling and conducting special operation on 17.12.2003 at 10 P.M. at Charali near village Ghagra under Harisinga Police outpost, the convict appellants were caught red handed with about 40 kgs. of ganja. Both of them were handed over to the police along with ganja recovered from them. The said ganja was seized by police from the possession of the convict appellants, sample was drawn and sent to FSL at Kahilipara in Guwahati for examination. The sample sent tested positive and a report was received from the FSL. On receipt of the report, an FIR was lodged and a case being Paneri P.S. Case No. 122/2003 was registered which gave rise to GR Case No. 1006/03. On completion of investigation charge sheet was submitted against the accused appellants and formal charge was framed by the learned trial court against them u/s 20(b)(ii)(C) of the NDPS Act. Both the convict appellants pleaded not guilty and claimed to be tried. 4(four) witnesses including the I.O. were examined by the prosecution to prove its case against the convicts. The convicts in their statement under Section 313 CrPC denied the evidence on record but declined to adduce evidence in their defence. The learned trial court, thereafter, on consideration of evidence on record and upon hearing the learned counsel for the parties convicted and sentenced the appellants as stated earlier. 2. I have heard Ms. Aparna Ajitsaria, learned Amicus Curiae for the convict appellants and Mr. Z. Kamar, learned P.P., Assam, for the respondent State. The learned trial court, thereafter, on consideration of evidence on record and upon hearing the learned counsel for the parties convicted and sentenced the appellants as stated earlier. 2. I have heard Ms. Aparna Ajitsaria, learned Amicus Curiae for the convict appellants and Mr. Z. Kamar, learned P.P., Assam, for the respondent State. The learned Amicus Curiae, appearing for the appellants, submits that the procedures for seizure of ganja and keeping them in safe custody till production before the Magistrate, drawing of sample from the seized contraband and sending the sample to the FSL as provided under the provision of NDPS Act have not been complied with and there is complete violation of the procedures provided under Sections 53 and 55 of the NDPS Act. Noncompliance of the procedures under the NDPS Act vitiated the entire proceeding and as such the conviction and sentence as awarded by the learned trial court is unsustainable under the law. The learned Amicus Curiae, in order to substantiate her submission, largely relies on the decision of this Court rendered in Bhim Ram & Ors. Vs. State of Assam reported in 2012 (1) GLT 416. According to her, the decision in the aforesaid case squarely covers the present appellants' case and they are entitled to acquittal. Mr. Kamar, learned P.P. countered the above submission by arguing that the contraband ganja was recovered from the possession of the convicts and the said contraband ganja having been tested positive in the FSL test, the prosecution has been able to prove the charge beyond reasonable doubt and as such the challenge to the impugned conviction and sentence is unwarranted and unsustainable in law. The appeal, according to him, deserves dismissal. 3. I have given serious thought and anxious consideration on the submissions made by the learned counsel for the parties. I have scanned the records as made available at the time of hearing. I have also gone through the evidence on record for appreciation. 4. The informant is none else than the Officer Commanding of E/96 CRPF based at Harasinga in Darrang district. As per the FIR dated 18.12.2003 (Ext. 2) both the accused persons were ULFA linkmen and they were apprehended with 40 Kgs. of ganja carried in two bicycles on 17.12.03 at 22.00 hours at Charali near village Ghagra under Harasinga Police Outpost during 24-hour special operation and recovered 40 kgs. As per the FIR dated 18.12.2003 (Ext. 2) both the accused persons were ULFA linkmen and they were apprehended with 40 Kgs. of ganja carried in two bicycles on 17.12.03 at 22.00 hours at Charali near village Ghagra under Harasinga Police Outpost during 24-hour special operation and recovered 40 kgs. of ganja from them in two bicycles. The said information was received by the Officer-In charge of Paneri Police Station on 18.12.03 at 10 A.M. The accused appellants were arrested on 18.12.03 at 2 P.M. and were produced before the learned CJM, Darrang, Mangaldoi on 19.12.03 along with the seized ganja who passed an order for sending the seized ganja for FSL test. Accordingly, the sample was dispatched on 20.12.03. 5. It appears from the order sheet that the sample was drawn, packeted and sealed in presence of the learned CJM. What is to be noted is that as per evidence of PW 3 the seized ganja was recovered from 4(four) gunny bags but only one sample packet was prepared/made from the seized ganja contained in 4 gunny bags. No separate packets were made from the samples drawn from the said 4(four) gunny bags containing the seized contraband ganja. There is no mention as from which gunny bag sample was drawn and why only one packet was made/prepared. Prosecution is silent as to whether at the time of drawing and packetting the sample, the accused persons were present and whether there was any independent witness. No memo was prepared by the prosecution at the time of drawing and packetting the sample. 6. What is more striking is that as per the informant CRPF Officer Commanding, although the accused persons were apprehended on 17.12.03 at 20 hours with the ganja in 4(four) gunny bags carried in two bicycles, they were produced/handed over to police only on the next day i.e. on 18.12.03 at 10 A.M. There is a gap of 12 hours from the time of apprehension of the accused persons with ganja and handing them over to the Paneri Police Station. The seized ganja was in the custody of the CRPF in the whole night of 17.12.03. Question arises whether the seized ganja was kept under a specially authorized or entrusted CRPF personnel in the night of 17.12.03 till they were handed over to police at 10 A.M. of 18.12.03. The seized ganja was in the custody of the CRPF in the whole night of 17.12.03. Question arises whether the seized ganja was kept under a specially authorized or entrusted CRPF personnel in the night of 17.12.03 till they were handed over to police at 10 A.M. of 18.12.03. There is no explanation justifying retention of the seized ganja by the CRPF for 12 hours but where is the guarantee of safe custody of the seized ganja in the custody of the CRPF till it was handed over to the police. 7. Similarly, the police also kept the seized ganja along with the accused persons till they were produced before the learned CJM on 19.12.03. There is no mention at what time on 19.12.03 the seized ganja was produced before the learned CJM. It may reasonably be presumed that it was produced at 10 A.M. of 19.12.03 in the early first half of the office hours. But what is the explanation of the police for keeping the seized ganja with them from 10 A.M. of 18.12.03 till the next morning i.e. 10 A.M. of 19.12.03 and why police failed to produce the seized ganja during office/court hours on 18.12.03 and they could produce the seized ganja before the learned CJM only on 19.12.03? There was a gap of at least 24 hours in producing the seized ganja before the learned CJM, if it is calculated from the date and time of receipt of the seized ganja from CRPF on 18.12.03 at 10 A.M. to 19.12.03 at 10 A.M. The officer-in-charge of the police station is duty bound to keep the seized contraband in the Malkhana under his safe custody. No memo is available on record about the keeping of the seized ganja under safe custody of the O.C. The prosecution did not care to produce the Malkhana Register to prove the keeping of seized ganja in the Malkhana, Where were those 4(four) gunny bags that contained seized ganja and whether it was really kept under safe custody of the O.C. of the police station concerned ? What prevented the police from producing the seized ganja at least during office hours of 18.12.03 and why the O.C. failed to produce the seized ganja during office hours on 18.12.03 ? These questions disturb the mind of the court. What prevented the police from producing the seized ganja at least during office hours of 18.12.03 and why the O.C. failed to produce the seized ganja during office hours on 18.12.03 ? These questions disturb the mind of the court. How can the O.C. satisfy the court that there was no chance of tempering with the seized ganja contained in the gunny bags during such long period under his custody ? Where is the evidence that the gunny bags containing the seized ganja were kept under his safe custody ? Even supposing that the seized ganja were kept in the police station, is it believable that the O.C. was on duty whole day and night ? Did he entrust any police official to specially look after the seized ganja in the police station ? Where is the evidence that the seized ganja was kept in the police station ? The court has no basis to believe that the seized ganja was really kept in the police station under the direct care and custody of the O.C. and there was no chance of being tempered with. 8. 4 (four) gunny bags contained the contraband ganja. As stated earlier there was only one sample packet. There is no statement or mark of identification from which gunny bag the said sole sample packet was made. The prosecution claims that the sample packet was sealed in presence of the learned CJM and sent to the FSL. But the prosecution has failed to prove that at the time of drawing, packetting and sealing the sample packets, the accused were present. No official from the FSL was examined as witness to testify as to whether the sample packet was received with seal (s) thereon intact and untempered. The procedure has been laid down in details under Section 55 of the NDPS Act. It is felt necessary and beneficial to reproduce hereunder the procedure laid down under Section 55 of the Act hereunder - 55. The procedure has been laid down in details under Section 55 of the NDPS Act. It is felt necessary and beneficial to reproduce hereunder the procedure laid down under Section 55 of the Act hereunder - 55. 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 scaled with a seal of the officer-in-charge of the police station. 9. If the steps taken by the prosecution in this regard is considered in the light of the said provision of law, one can easily come to conclusion that there was no compliance of the said statutory procedure. The Apex Court in Gurbax Singh Vs. State of Haryana reported in AIR 2001 SC 1002 held that the provision under Section 55 of the Act is not mandatory but although it is directory, the I.O. cannot totally ignore the said provision and failure on his part in compliance with the same will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. 10. Ext. 4 is the communication dated 29.12.03 whereby the result of the FSL examination was sent to the CJM. In the said communication it is stated that one parcel was received in the office of the Forensic Science Laboratory, Kahilipara by the Messenger on 22.12.03, whereas as per the court record the sample was dispatched on 20.12.03. Why the sample packet dispatched on 20.12.03 per messenger reached the FSL office after two days ? No explanation has been offered by the prosecution. Such delay is undoubtedly unjustified and it casts doubt on the bona fide steps taken by the prosecution. The FSL report was proved by PW 4, S.I. of Police, who investigated the matter. It is beyond comprehension how the I.O. could prove the FSL report. Why the prosecution could not examine any official from the FSL office to prove its report. The FSL report was proved by PW 4, S.I. of Police, who investigated the matter. It is beyond comprehension how the I.O. could prove the FSL report. Why the prosecution could not examine any official from the FSL office to prove its report. It is the Director of FSL or his authorised person/officer who has to testify the genuineness of the report and prove the said report. The defence has been deprived of the statutorily provided chance of cross examining the FSL official on the report (Ext. 4). Had any official of the FSL been examined by the prosecution, the defence could have cross examined him and could get the answer whether the sample packet was received with seal(s) intact and untempered. The unexplained withholding of official witness from the FSL by the prosecution is quite unusual and it has rendered the prosecution case doubtful and unbelievable. 11. The Court is to take note that the NDPS Act is a special law with stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances and illicit trafficking therein. The offence under the NDPS Act, therefore, is always treated with serious penal provision. Due to serious penal provision provided in the said Act, it is always emphasised that the procedural safeguards under the Statute are followed strictly. The settled law is that more stringent the law, stricter compliance of procedure laid down in the law is needed. Considering the manner in which the recovery/seizure, drawal of sample, sealing of packet, sending of seized contraband ganja were made, it is quite clear that the procedures as contemplated under the Statute were never followed. The procedure adopted by the prosecution is far from satisfaction of the court. The judicial conscience does not permit the court to accept the procedure adopted by the prosecution in the present case. In such a situation, the Court is bound to take a view that the prosecution was not successful in proving the charge against the accused persons beyond all reasonable doubt. As discussed earlier, prosecution failed to satisfy the court regarding safe custody of the seized contraband ganja while the same was kept by CRPF in their camp for a night before handing over the same to police and another night in the police station till production before the learned CJM. As discussed earlier, prosecution failed to satisfy the court regarding safe custody of the seized contraband ganja while the same was kept by CRPF in their camp for a night before handing over the same to police and another night in the police station till production before the learned CJM. No Court, in absence of cogent and reliable evidence, would be convinced that the gunny bags containing the seized contraband ganja were not tempered and there was no foul play in drawing the sample. For the above reasons, the Court is bound to hold that the basic minimum procedure was not followed by the prosecution. 12. In the result, I hold that the convict appellants are entitled to acquittal on benefit of doubt. The charge having not been proved beyond reasonable doubt, the impugned judgment and order convicting and sentencing the convict appellants is hereby set aside and quashed. 13. The convict appellants are hereby acquitted on benefit of doubt. They be set at liberty forthwith if their further detention is not required in connection with any other case. 14. This Court appreciates and acknowledges the able legal assistance rendered by Ms. Aparna Ajitsaria, learned counsel, as Amicus Curiae and directs the Assam State Legal Services Authority to pay her an amount of Rs.5,000/- (Rupees five thousand) only as legal fee. The appeal stands allowed. Return the LCR. Appeal allowed.