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2012 DIGILAW 94 (GAU)

Lokesh Malakar v. State of Assam

2012-01-24

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. Heard Mr. S.K. Ghosh, learned counsel for the appellant. Also heard Mr. Munir, learned Additional P.P., Assam, appearing for the respondent State. This appeal is directed against the judgment and order dated 14.10.2004 passed by the learned Special Judge, Kamrimganj in Special Case No. 2/2000 convicting the appellant u/s 22 of the NDPS Act and sentencing him to suffer R.I. for 10 years and a fine of Rs. 1 lac in default S.I. for two months. 2. The prosecution case, in brief, is that on 7.8.2000 at 3 P.M., on receiving a secret information, the informant, S.I. of Police accompanied by staff alongwith Deputy S.P. Headquarter and Deputy S.P. D.S.B. apprehended the accused appellant near a bus stand and, on being searched, recovered one small packet of suspected heroin from his right hand. The sample was seized, drawn, packed and sealed. The accused was arrested under Section 42 of the NDPS Act. During investigation, the accused revealed that he purchased the same from one Montaz Ali, a resident of Hailakandi district. The house-cum-shop of said Montaz Ali was raided and found therefrom three packets of suspected heroin. The said suspected heroin was kept concealed by one Monwara Begum wife of Montaz Ali. The samples of the seized material were sent for FSL test. It was tested positive as per report received from the FSL. 3. After completion of the investigation charge sheet was submitted against the accused petitioners and charge was framed against them under Section 22 of the NDPS Act. The charge being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. The prosecution examined 5 witnesses including the I/O of the case. 4. On the basis of the materials and evidence on record and the submissions of the learned counsel for the parties, the learned Special Judge convicted and sentenced the present accused appellant as stated earlier while the other two co-accused, namely, Montaz Ali and Monwara Begum were acquitted. 5. Mr. Ghosh, learned counsel submits that admittedly the police recovered/seized 1 gm 750 milligram of suspected heroin from the possession of the appellant and according to him it is a small quantity within the meaning of Section 2 (XXIII A) of the NDPS Act, 1985 and notification dated 19th October, 2001 specifying small quantity and commercial quantity. 5. Mr. Ghosh, learned counsel submits that admittedly the police recovered/seized 1 gm 750 milligram of suspected heroin from the possession of the appellant and according to him it is a small quantity within the meaning of Section 2 (XXIII A) of the NDPS Act, 1985 and notification dated 19th October, 2001 specifying small quantity and commercial quantity. Item 56 of the table appended to the said notification relates to heroin/smack in respect of which small quantity is upto 5 gms. The punishment prescribed u/s 22(a) under the NDPS Act for possession of small quantity of heroin is rigorous imprisonment for a term which may extend to 6 (six) months or with fine which may extend to Rs. 10,000/-(Rupees ten thousand) or with both. He, therefore, submits that on the admitted fact of recovery of 1 gm 750 milligram of heroin, the learned trial court cannot impose punishment of 10 years and fine of Rs. 1 lac and, as such, the same is liable to be quashed or modified. 6. With the assistance of Mr. K. Munir, learned Additional P.P. I have verified from the Seizure List, Ext. 5 that the police seized 1 gm 750 milligram of suspected heroin in presence of three witnesses. They were not examined as seizure witnesses by the prosecution to prove the fact of seizure of the alleged contraband article from the possession of the appellant. This a serious lapse on the part of the prosecution and under such circumstances the prosecution cannot claim that it has been able to prove that the contraband article was recovered from the possession of the appellant. There is no explanation whatsoever from the prosecution why it has withheld the independent seizure witnesses. On the other hand, it is found from record that two other co-accused persons were acquitted for want of evidence and also on the ground that the search was not conducted as per the procedures laid down under Section 42 and 50 of the NDPS Act. It has also been found from record that PWs 1, 2 and 3, seizure witnesses, in respect of Ext. 1 i.e. relating to alleged seizure of contraband article from the house of co-accused Shri Montaz Ali and Monwara Begum, declined to support the prosecution case and they were declared hostile. It has also been found from record that PWs 1, 2 and 3, seizure witnesses, in respect of Ext. 1 i.e. relating to alleged seizure of contraband article from the house of co-accused Shri Montaz Ali and Monwara Begum, declined to support the prosecution case and they were declared hostile. They clearly stated that they put their signatures on a piece of blank white paper and they were not aware about any seizure of alleged contraband article. If it is found so, the Court can cast serious doubt on the seizure of the alleged contraband article from the possession of the present appellant also inasmuch as, as stated earlier, the prosecution did not produce and examine the aforesaid independent witnesses, who signed the Ext. 5, Seizure List. 7. In the aforesaid facts and circumstances, even assuming that the prosecution seized the aforesaid quantity of contraband article, which has been tested positive, is accepted and found proved, there is no justification in handing down sentence of R.I. for 10 years with fine of Rs. 1 lac as has been done on the petitioner by the learned Special Judge for the small quantity of the contraband article which is only 1 gm 750 milligram, which is admittedly a small quantity within the meaning of the Circular issued by the Government under the provision of Section 52 of the NDPS Act. 8. In view of the above discussions, the conviction of the accused appellant is upheld with modification in the sentence to the effect that his conviction would be converted to the period already undergone. 9. It is stated by Mr. Ghosh, learned counsel that the appellant was behind the bar for 156 days during trial and served in jail for 67 days after conviction which comes to 223 days i.e. 7 months, 13 days. The appellant is on bail as per order dated 20.12.2004 passed by this Court in Misc. Case No. 537/2004. This appeal stands allowed with modification in the sentence as indicated above. The bail bond stands discharged. Return the LCR forthwith. Appeal allowed.