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Gauhati High Court · body

2013 DIGILAW 391 (GAU)

Azad Ali (MD. ) v. State of Assam

2013-06-11

C.R.SARMA

body2013
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 12.09.2005, passed by the learned Sessions Judge, Kamrup, in Sessions (Spl.) Case No. 35(K)/03, whereby and whereunder, the learned Sessions Judge convicted the appellant under Section 20(b)(ii)(c) of NDPS Act and sentenced him to suffer RI for 10 (ten) years and pay fine of Rs. 1,00,000/-, in default, suffer RI for another period of 3 (three) years. Aggrieved by the said judgment and order of conviction, the appellant, who is undergoing imprisonment from the date of judgment and order, has preferred this appeal. 2. Ms, N. Thakuria, learned Counsel, appearing for the appellant, taking this Court through the evidence, on-record, as well as the impugned judgment, has submitted that the prosecution failed to adduce substantive and corroborative evidence, regarding seizure of ganja from the conscious possession of the appellant and as such, the learned trial Judge committed error by recording conviction and sentence. It is also submitted that there is no independent witness, supporting the seizure of ganja from the possession of the appellant and that, there are major contradictions in the evidence of the witnesses, examined by the prosecution, with regard to the place of recovery, seizure and time of seizure. 3. The learned Counsel, appearing for the appellant, has further submitted that in the present case, the informant, who lodged the FIR, being a Police Inspector, himself conducted the investigation also and submitted the charge-sheet and as such, the investigation being bias, the conviction, based on such investigation and evidence, collected by the said informant-cum-Investigating Officer, can not be maintained. 4. The learned Counsel, appearing for the petitioner, has also submitted that the petitioner has already completed imprisonment for about 8 (eight) years for no fault on his part and that, this is a fit case, requiring interference with the impugned conviction and sentence. 5. Mr. N.J. Dutta, learned Additional Public Prosecutor, Assam, supporting the impugned conviction and sentence, has submitted that there is sufficient evidence to show that the seized ganj a was found in the possession of the appellant and as such, the learned trial Judge committed no error by convicting and sentencing the appellant, as indicated above. 6. In order to appreciate the arguments, advanced by the learned Counsel, appearing for both the parties, I have carefully perused the evidence, on-record. The FIR was lodged by Mr. 6. In order to appreciate the arguments, advanced by the learned Counsel, appearing for both the parties, I have carefully perused the evidence, on-record. The FIR was lodged by Mr. D. Dutta (PW 7), S.I. of Police, CID. In the said FIR, which has been exhibited as Ext. No. 8, it has been mentioned that, on 03.12.2002, at about 3.15 PM, from a reliable source, the S.P., CID, Assam, Guwahati, came to know that the appellant used to deal with contraband substance i.e., ganja and accordingly, he, on being led by Mr. K. Shyam, Inspector of CID (PW-6), visited the house of the appellant. Deposing as PW 7, he stated that he found 36 Kg of ganja, kept in two gunny bags (21 kg in one bag and 15 kg in another bag) under a coconut tree in the courtyard of the appellant. As indicated in the said FIR, the seized ganja was found near a coconut tree within the compound of the appellant and the same was seized in presence of the witnesses. According to the PW-7, the search by him was supervised by PW-6. It appears that PW-2, a Constable, the PW-6 and the PW-7 went to the place of occurrence together. 7. From the said FIR (Ext. 8), it appears that seizure was made on 03.12.2002, but at the time of framing the charge, the date of occurrence was shown as 13.12.2003. Therefore, it is found that the charge was wrongly framed showing a wrong date of occurrence. Hence, the very foundation of trial itself was defective. 8. Sri Gajendra Nath Deka, Sr. Scientific Officer, Drugs and Narcotics Division, Forensic Science Laboratory, Assam, who examined the sample of the seized ganja deposed as PW-1. He stated that the sample was received by him on 05.12.2002 and he had examined the same on 12.12.2012. He further stated that the said sample, examined by him, gave positive test for cannabis (ganja). 9. Md. Ibrahim Hazarika, a Constable of Police, who accompanied the I.O. to the place of occurrence, deposed as PW-2. He stated that, on being directed by the O.C., Bijoynagar Police Station, he accompanied the CID personnel to the house of the appellant. This witness stated that, on their arrival in the place of occurrence, they found a gathering in the house of the appellant and Mr. Amir Ali (since acquitted). He stated that, on being directed by the O.C., Bijoynagar Police Station, he accompanied the CID personnel to the house of the appellant. This witness stated that, on their arrival in the place of occurrence, they found a gathering in the house of the appellant and Mr. Amir Ali (since acquitted). He further stated that two gunny bags, kept under the heap of straw of Mr. Amir Ali and Azad Ali, were found and that, both the gunny bags containing ganza were seized by the CID personnel in his presence. He signed the seizure list as seizure list witness. He exhibited the seizure list as Ext 3 and his signature as Ext 3(1). In the cross-examination, he further stated that ganja was found in the compound of the appellant. He again contradicted his said evidence by saying that he did not know from whose compound, the said two bags were recovered by the Police. Though this witness failed to prove the seizure from the conscious possession of the appellant, his evidence indicates that the seized bags, containing ganja, were found in the heap of straw. But in the FIR, i.e. the Ext. 8, the I.O., i.e. the informant (PW 7), who lodged the FIR, stated that the ganja was found under a coconut tree within the campus of Azad Ali. The FIR is silent regarding heap of straw. Therefore, there is contradiction in the evidence of PW 2 and PW 6. The PW 2's evidence belies the I.O.'s (PW 7) version that the ganja was found near the coconut tree. 10. Mr. Jon Nath, who was a owner of a Mill, deposing as PW No. 3 stated that Police had used his weigh machine for weighing the seized ganja. He did not know as to from whose residence the seized item was recovered. 11. PW-4, who was also one of seizure list witnesses, stated that the seizure was made at about 3 PM, but in the FIR, it was mentioned that information regarding possession of ganja, by the appellant, was received by the Superintendent of Police, Guwahati at about 3.15 PM. This witness also stated that both the seized bags were recovered from a heap of straw from the compound of Azad Ali. He exhibited the seizure list as Ext. 4 and his signature thereon as Ext. 4(1). This witness also stated that both the seized bags were recovered from a heap of straw from the compound of Azad Ali. He exhibited the seizure list as Ext. 4 and his signature thereon as Ext. 4(1). In his cross-examination, he stated that he did not know from where the said bags were recovered by the Police. He further stated that he put his signature on blank paper on being advised by the Police. His evidence, that the seized ganja was found in a heap of straw, belies the evidence of PW 6 that the seizure was made in the house of the appellant and also the evidence of PW-7 (I.O.) that the seized ganja was found under the coconut tree. 12. Contradicting the evidence of PWs-2, 4 & 5 and the statement, made in the FIR, regarding date of occurrence, Mr. K. Shyam, who deposed as PW-6, stated that on 09.12.2002, he was working as Inspector of Police, CID, Guwahati and on that day, receiving an information regarding illegal trafficking of ganja, he visited the place of occurrence along with S.I. Mr. D. Dutta, i.e. PW 7. He further stated that they had searched the house of Mr. Azad Ali and found two gunny bags containing ganja. In his cross-examination, he stated that the said ganja was seized at about 2.30 PM. His said statement that the seizure was made at 2.30 PM contradicts the statement, made in the FIR that the concerned information was received at 3.15 PM and that after receipt of such information, the I.O. as well as the PW-6 visited the place of occurrence. Because the Police team visited the place of occurrence after receiving the said source information. Therefore, the evidence of PW 6 raises doubt about the visit of the Police party. The said evidence, given by the PW-6, is contrary to the statement made in the FIR as well as the evidence given by the I.O. (PW 7). 13. That apart, PWs 2 and 4, who claimed to be the seizure list witnesses, stated that the ganja was found in the heap of straw. They did not say that the seized ganja was found from the house of the appellant. 14. But, PW 5, another seizure list witness stated that police had told him that the seized ganja was found in the compound of the appellant. They did not say that the seized ganja was found from the house of the appellant. 14. But, PW 5, another seizure list witness stated that police had told him that the seized ganja was found in the compound of the appellant. On the other hand, PW 6 stated that they searched the house of the appellant and received the seized ganja. But, PW-7, i.e. the I.O., who lodged the FIR, stated that the ganja was recovered from under a coconut tree in the courtyard of the appellant None of the PWs-2, 4 and 6 stated that the ganja was recovered from under the coconut tree of the appellant There is no corroboration in the evidence of the PW-7 to believe that the ganja was found under the coconut tree in the courtyard of the appellant. Rather there is contradiction, regarding the place of recovery, which raises doubt about the seizure itself. That apart, PW 2 and PW 4, in their cross examination, stated that they did not know from whose boundary (i.e. compound) the ganja was found. 15. From the above discussed evidence, it appears that none of the said witnesses supported the evidence of the PW-7 and the statement, made by him in the FIR, regarding seizure of the ganja from under the coconut tree in the premises of the appellant. Therefore, I find no corroborative and substantive evidence in support of the prosecution version that the ganja was found from the possession of the appellant. 16. As discussed above, according to the PWs-2 and 4, the ganja was found in the heap of straw. But according to the PW-5, he was told by Police that the ganja was recovered from the house of the appellant. On the other hand, as stated by PW 6, ganja was found in the house of the appellant whereas, according to the I.O. (PW 7), the seized ganja was found under a coconut tree in premises of the appellant Therefore, I find contradiction on material point, i.e. regarding place of seizure and this contradiction raises serious doubt about the seizure of the ganja from the conscious possession of the appellant. Therefore, I have no hesitation in holding that the prosecution failed to establish, by adducing substantive evidence that the seized ganja was found in the conscious possession of the appellant. 17. Therefore, I have no hesitation in holding that the prosecution failed to establish, by adducing substantive evidence that the seized ganja was found in the conscious possession of the appellant. 17. There is no dispute that the Police Officer, i.e. PW-7, who lodged the FIR, as informant, himself conducted the investigation and submitted charge-sheet (Ext.-9). 18. The investigation, made by the informant himself can not be free from biasness and impartiality and as such, it is not safe to base conviction on the evidence, collected by such Investigating Officer. 19. In this regard, the learned Counsel, appearing for the appellant, has relied on the decision, held in the case of Shibjoy Reang Vs. State of Tripura, reported in 2001 (1) GLT 220: (2001) 2 GLR 111. In the said case, a learned Single Judge of this Court observed as follows:- Learned defence counsel Mr. A. Ghosh having referred a decided case in Megha Singh Vs. State of Haryana reported in (1995) Cr ILJ 3988 contends that the Hon'ble apex Court depreciated the prevailing practice of undertaking investigation by a Police officer who lodged the FIR and the learned defence counsel continued that the Police Officer Sri Debjan Chakma lodged the FIR as informant of the case and he himself took up the investigation as available from the FIR, exbt. P/3 and from the deposition of Debjan Chakma PW 9. Learned counsel for the appellant also referred a citation in the case of Xavier Vs. State of Kerala reported in 1998 Cr I.LJ. 3182 and submits that since in the present case the Police Officer who lodged the FIR setting the law in motion himself conducted the investigation and the entire trial stood vitiated. I have carefully gone through the aforesaid citation, though in the case of Xavier (supra) the Kerala High Court acquitted the appellant on that score alone, but in the case of Megha Singh (supra) though the Hon'ble Apex Court condemned the prevailing practice of undertaking/conducting investigation by the informant Police Officer, but on the ground alone, the Hon'ble Supreme Court never held that the trail would be vitiated in such case. 20. In view of the above-discussed contradictions, regarding seizure, and the evidence, collected by the informant himself, as the I.O. of the case, I don't find it safe to maintain the conviction and sentence, aforesaid. 21. 20. In view of the above-discussed contradictions, regarding seizure, and the evidence, collected by the informant himself, as the I.O. of the case, I don't find it safe to maintain the conviction and sentence, aforesaid. 21. In view of the above discussion, I have no hesitation in holding that the prosecution tailed to prove, beyond all reasonable doubt, by adducing cogent and substantive evidence that the appellant had possessed the seized ganja. Therefore, I find sufficient merit in this-appeal requiring interference with the impugned conviction and sentence. 22. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant be set at liberty forthwith, if not required in any other cases. Return the LCR. Appeal allowed.