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2013 DIGILAW 593 (GAU)

Suraj Gupta and Ors. v. State of Assam

2013-08-20

I.A.ANSARI, INDIRA SHAH

body2013
I.A. Ansari, J.- This is an appeal against the judgment and order, dated 12.08.2011, passed, in Special Case No. 6/2008, by the learned Sessions Judge, Sibsagar, convicting the three accused-appellants, under Section 20(b)(ii)(C) of the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), and sentencing each of them to suffer rigorous imprisonment for 10 years and pay fine of Rs. 1,00,0007-and, in default of payment of fine, suffer further rigorous imprisonment for one year. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: On 28.08.2008, at about 9-15 A.M., an information was received by PW5, a sub-Inspector of Police and Officer-in-Charge, Railway Police Station, at Simaluguri, from his confidential source that three persons, having ganja (cannabis) in two VIP suitcases and two airbags, had kept the same on platform No. 2 of the said railway station. The information, so received, was recorded in GD Entry No. 528, dated 28.08.2008, and, thereafter, acting upon the information, so received, PW5, accompanied by PW 1, an ASI at the said Railway Police Station, PW6 and PW7, both constables of Railway Police, and also PW8, Head constable of Railway Police, went to platform No. 2 and, upon confronting the boys (accused persons), when PW5 asked their names, the boys disclosed their names as Suraj Gupta, Mukul Saha and Ranjit Kumar Sana, who became accused in the case and, now, the appellants. On finding one VIP suitcase each with accused Suraj Gupta and Mukul Saha, and two airbags with accused Ranjit Kumar Saha, when PW5 asked them as to what the suitcase and the bags contained, the three accused replied by saying that there was ganja (cannabis) inside the said two suitcases and two airbags. On the basis of the disclosure, so made, the bags and the suitcases were opened in presence of witnesses and ganja (cannabis), wrapped in polythene bags and kept inside the suitcases and bags, were found. On weighment of the suspected ganja, accused Suraj was found to have been carrying 20 Kgs. and accused Mukul Saha was found carrying 17 Kgs. of suspected ganja. This apart, accused Ranjit Kumar Saha was found carrying 21 Kgs. of suspected ganja in one bag and 12 Kgs. of ganja in the other bag. The whole of the suspected ganja (Cannabis) was seized. and accused Mukul Saha was found carrying 17 Kgs. of suspected ganja. This apart, accused Ranjit Kumar Saha was found carrying 21 Kgs. of suspected ganja in one bag and 12 Kgs. of ganja in the other bag. The whole of the suspected ganja (Cannabis) was seized. Having made the weighment and seizure, as mentioned hereinbefore, the accused persons were taken into custody. From the seized suspected ganja, a sample of 50 grams of ganja was drawn and, having divided the sample into two parts of 25 grams each, PW5 sent one of the samples to the Forensic Science Laboratory, Assam, on 30.08.2008, for chemical analysis by a forwarding letter (Exhibit 6). (ii) On the following day, i.e., on 29.08.2008, the three accused persons were forwarded to the Magistrate. (iii) On receiving, on 23.11.2008, report of the chemical examination, which confirmed that the seized articles were ganja, an Ejahar (Exhibit-1) was formally lodged by PW1, the ASI of Railway Police, who had accompanied PW5, Officer-in-Charge, Railway Police, at Simaluguri, in locating the ganja and in the seizure thereof. Treating the said Ejahar as First Information Report, Simaluguri GRPS Case No. 12/2008, under Section 20(b) of the NDPS Act, was registered and, on completion of investigation, a charge-sheet was accordingly laid. (iv) At the trial, when charge, under Section 20(b)(ii)(C) of the NDPS Act, was framed against the three accused persons, they all pleaded not guilty thereto. (v) In support of their case, prosecution examined altogether 9 (nine) witnesses. The three accused persons were, then, examined under Section 313(b) Cr.P.C. and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. (vi) Having, however, found all the three accused guilty of the offence, which they stood charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. (vii) Aggrieved by their conviction and the sentence, which has been passed against them, all the three accused, as convicted persons, have preferred this appeal. 3. We have heard Mr. M. Biswas, learned counsel, appearing for the accused-appellants. We have also heard Mr. Z. Kamar, learned Public Prosecutor, Assam. 4. (vii) Aggrieved by their conviction and the sentence, which has been passed against them, all the three accused, as convicted persons, have preferred this appeal. 3. We have heard Mr. M. Biswas, learned counsel, appearing for the accused-appellants. We have also heard Mr. Z. Kamar, learned Public Prosecutor, Assam. 4. Considering the fact that it is the evidence of PW5, Officer-in-Charge, Simaluguri GRPS, around whose evidence revolves the entire case of the prosecution, we deem it appropriate to examine his evidence vis-a-vis examination of the other witnesses in order to determine if conviction of the accused-appellants is sustainable in law. 5. While considering the evidence of PW5, what transpires is that according to him, he had received, on 28.08.2008, at about 9.15 am, information from his confidential source, that three boys, having put ganja (i.e., Cannabis), in two VIP suitcases and two airbags, were at platform No.2 and, having made GD. Entry No.583, dated 28.08.2008, in this regard (which has been proved as Exhibit 4), he (PW5), according to what PW5 has deposed, went, accompanied by PW1, a Sub-Inspector of Police at the said Railway Station, PW6 and PW7, both of whom were constables at the said Railway Police Station, and PW8, a Head Constable, at the said Railway Police Station, to the platform No.2 and, having found the three boys, when he (PW5) asked the boys about their names, the said boys disclosed their names as Suraj Gupta, Mukul Shah and Ranjit Shah. 6. It is in the evidence of PW5 that having found one VTP suitcase with accused Suraj Gupta and accused Mukul Shah each and two airbags with accused Ranjit Shah, when he asked the three boys as to what were there inside the suitcases and the bags, the three boys replied by saying that there was ganja (Cannabis) in the said suitcases and bags and it is, thereafter, that the suitcases and the airbags were opened in presence of witnesses and, having found materials, contained inside the polythene bags, which were suspected to be ganja, he (PW5), after having weighed the suspected ganja, seized the said ganja by Seizure List, which is Ext.2. 7. 7. It is also in the evidence of PW5 that while accused Suraj Gupta was found in carrying, in his possession, 20 grams of suspected ganja, accused Mukul was found carrying 17 kgs of suspected ganja and as far as accused Ranjit was concerned, he was found carrying 21 kgs of suspected ganja in one bag and 12 kgs of suspected ganja in the other bag and that the entire ganja, as indicated hereinbefore, was seized after the same was weighed. 8. It is further in the evidence of PW5 that he drew samples from each of the seized bags, sealed the same, carried all the three accused to the Railway Police Station and forwarded them to the Court on the following day and it was on 31.08.2008 that he sent a sample to the Forensic Science Laboratory, Assam, (in short, FSL) for chemical examination. 9. PW5 has deposed that Ext.7 is the report of the FSL, which opined that the seized materials were ganja (Cannabis) and, then, PW1, who is the Assistant Sub-Inspector of Police, posted at the said Railway Station, and who had accompanied PW5, as has been described hereinbefore, lodged an Ejahar, which is Ext.1, and, treating the said Ejahar as First Information Report (FIR), a case was registered against the three accused persons. 10. If the evidence of PW5 is borne in mind, what clearly transpires is that according to him (if he (PW5) is telling the truth), he (PW5) received the information as regards the fact that three boys were carrying ganja and had kept the same at platform No.2 from his confidential source and, having made GD Entry No. No.583, dated 28.08.2008, in this regard, he, accompanied by PW1, PW6, PW7 and PW8, went to platform No.2 and, on having found the three boys, when he (PW5) asked their names, the three boys (who, later on, became accused and faced trial), introduced themselves as Suraj Gupta, Mukul Shah and Ranjit Shah. 11. It also transpires from the evidence of PW5 that out of the said two VIP suitcases, one VIP suitcase was found being carried by accused Suraj Gupta and the other suitcase was found being carried by accused Mukul Shah and so far as Ranjit Shah was concerned, he was carrying two airbags. 12. 11. It also transpires from the evidence of PW5 that out of the said two VIP suitcases, one VIP suitcase was found being carried by accused Suraj Gupta and the other suitcase was found being carried by accused Mukul Shah and so far as Ranjit Shah was concerned, he was carrying two airbags. 12. It further transpires from the evidence of PW5 that the two suitcases and the two airbags were opened and each one of the suitcases and bags was found containing suspected ganja (Cannabis), wrapped in polythene bags, the same were, then, weighed and, following the weighment, the suspected ganja was seized. 13. Belying, however, the above evidence of PW5, PW1 - who, according to PW5, had accompanied PW5, when PW5, on receiving information from his reliable source, and upon making GD Entry, proceeded towards platform No. 2 and seized the suspected ganja (Cannabis) - has deposed that on 28.08.2008, at about 9.10 am, when he (PW1) was on duty, at the said Railway Station, along with Havildar Gauri Kanta (PW8) and Constable Nagen Das (PW6), he found, at platform No.2, three boys, namely, Suraj Gupta, Mukul Shah and Ranjit Shah, carrying VIP suitcases and two airbags and that, out of suspicion, when they checked the VIP suitcases and the airbags, they found the boys carrying suspected ganja in the said suitcases and airbags. 14. With regard to the above, the clear evidence of PW1 is that they (PW1, PW6 and PW8) detained the three boys on the spot and informed their Officer-in-Charge (i.e., PW5) and it was on receiving information from PW1 - and not from any confidential source, as has been projected and/or claimed by PW5 - that the Officer-in-Charge (PW5) came to platform No.2 and seized the said suitcases and airbags containing suspected ganja (Cannabis). 15. 15. Thus, while PW5 claims that he came to platform No.2, accompanied by PW1, PW6, PW7 and PW8, on the basis of the information received from his confidential source and seized the ganja (Cannabis), as described by him, PW1 completely belies the evidence of PW5 by asserting, on the other hand, that while he (PW1), accompanied by PW6 and PW8, was on duty at platform No.2, they happened to accidentally come across the three boys and, out of suspicion, when they checked the suitcases and the airbags, which the boys had been carrying, they found what they suspected to be ganja (Cannabis) and, on having found that the said boys had been carrying suspected ganja (Cannabis), PW5 was informed and it was thereafter that PW5 came to platform No.2 and seized the suspected ganja (Cannabis) in presence of witnesses, which had already been found by PW1. 16. When examined a little more minutely the evidence of PW1 vis-a-vis the evidence of PW5, it clearly emerges that PW1, accompanied by PW6 and PW8 (according to what PW1 claims), was already at platform No.2, when he saw the three boys and when he checked their suitcases and airbags, he found suspected ganja (Cannabis) and, keeping the three accused detained, he (PW1) informed PW5 and it was then that PW5 came to platform No.2 and seized the suspected ganja (Cannabis), which had already been found by PW1 in the company of PW6 and PW8. 17. Belying, however, mutually destructive evidence of both, PW1 and PW5, PW2, who is claimed to be a witness to the seizure of the said suspected ganja (Cannabis) made by Seizure List (Ext.2), has deposed that the three boys were caught, in his presence, at platform No.1 (and not at platform No. 2), by PW5 and PW7, while carrying suspected ganja (Cannabis). Thus, PW2 does not even acknowledges the presence of PW1, PW6 and PW8 in the company of PW5 at the time of checking the said suitcases and airbags and/or at the time of making the seizure of the suspected ganja (Cannabis). It is interesting enough to note that though this witness (PW2) has denied that he is a stock witness, he, at the same time, admits that a few days before giving evidence in the present trial, he had already given evidence, at yet another trial of narcotic drugs, as regards seizure thereof. 18. It is interesting enough to note that though this witness (PW2) has denied that he is a stock witness, he, at the same time, admits that a few days before giving evidence in the present trial, he had already given evidence, at yet another trial of narcotic drugs, as regards seizure thereof. 18. So far as PW3 is concerned, he does not know from where seizure was made inasmuch as he merely weighed the seized ganja (Cannabis). 19. What is, however, imperative to note is that while PW5 and PW1 claim that seizure of the suspected ganja (Cannabis) was made at platform No.2 after the same were weighed, PW3 claims that he weighed the sealed packets of suspected ganja (Cannabis) at Simaluguri Police Station after the suspected ganja (Cannabis) had already been seized. 20. As regards PW4, who is a Havildar, suffice it to point out that his evidence does not help much the case of the prosecution inasmuch as he has, admittedly, deposed that, he had arrived at the Railway Station on hearing hue and cry and found that three persons had already been apprehended and that PW5 told him that belongings of the said three persons needed to be searched and that, on being searched, 70 kgs of suspected ganja (Cannabis) was found in the possession of the said three persons; whereas PW5 has claimed that, on receiving information from reliable source that three boys were having ganja (Cannabis) in their possession at platform No. 2, he, accompanied by PW1, PW6, PW7 and PW8, went to platform No. 2 and detained the three boys and seized the suspected ganja (Cannabis) as already mentioned hereinabove. 21. What is of greatest significance to note, in the evidence of PW4, is that he is very assertive in his evidence that the three accused persons, who faced the trial, are not the ones, whom he had seen at the said Railway Station. Notwithstanding such assertion, the evidence of PW4 has gone unchallenged by the prosecution in the sense that PW4 was neither declared hostile nor was he (PW4) cross-examined by the prosecution. This apart, prosecution did not evert suggest to PW4 that the three accused persons, who faced trial, were the ones, whom he (PW4) had seen at the said Railway Station and from whom seizure of the suspected ganja (Cannabis) had been made. 22. This apart, prosecution did not evert suggest to PW4 that the three accused persons, who faced trial, were the ones, whom he (PW4) had seen at the said Railway Station and from whom seizure of the suspected ganja (Cannabis) had been made. 22. Coming to the evidence of PW6, we notice that he claims that PW2, PW5 and PW7 were at platform No.2, where the suitcases and the airbags were opened and the suspected ganja (Cannabis) was found and seized; whereas PW2, as already indicated above, has claimed that the accused were found and the suspected ganja (Cannabis) was seized at platform No.1. Moreover, while PW1 claims that PW6 was with him, when he was on duty at the said Railway Station and when he saw the three accused and, on finding suspected ganja (Cannabis), they informed PW5, PW5 has claimed, as already pointed out above, that he (PW5), on receiving information from confidential source, came to platform No.2 accompanied by PW1, PW6, PW7 and PWS. 23. Turning to the evidence of PW7, who is also a constable, we find that according to him, he was on duty at platform No. 1 and he went to platform No.2 along with PW1. Surprisingly enough, however, PW7 speaks that only two persons had been found at platform No.2 and suspected ganja (Cannabis) had been seized from them. This apart, belying the evidence of PWS, who, if we may reiterate, had claimed that on the basis of confidential information received, he (PWS) had gone to platform No.2, accompanied by PW1, PW6, PW7 and PWS, PW7 claims that he was with PW1, PW6 and one Gopal Talukdar, when they found the suspected ganja (Cannabis) with the three boys and informed their Officer-in-Charge (i.e., PWS). 24. Coming to the evidence of PWS, who was the Head Constable at the said Railway Station, at the relevant point of time, we notice that according to his evidence, he went to the said Railway Station to take tea and, on seeing gathering of people in front of GRPS Police Station at platform No. 1, he, out of curiosity, went near and saw that their Officer-in-Charge, i.e., PWS, and his staff had been getting two VTP suitcases and two airbags opened and examined the same. 25. 25. If the evidence of PWS is believed, then, the seizure took place at platform No. 1 and the bags were opened at platform No.1; whereas PW1, PWS and some others claim that the suitcases were opened and seizure was made at platform No.2. 26. With regard to the evidence of PW9, we may point out here that his evidence merely confirms that what was examined by him, on being sent by PWS, was found to be ganja (Cannabis). 27. A dispassionate analysis and minute scrutiny of the evidence, adduced by the prosecution, clearly shows that the prosecution miserably failed to adduce consistent and credible evidence inasmuch as the evidence, which the prosecution has adduced, is, as we have already noticed above, full of contradictions and mutually destructive. The evidence on record, given by various witnesses, is a collection of such irreconcilable pieces of evidence that no reasonable man can place reliance on such inconsistent, conflicting and mutually destructive evidence. 28. It is trite that when the penal provisions of any enactment are onerous and exposes an accused to the peril of very harsh punishments, the procedural safeguards, which the enactment provides to an accused, in such a case, must be scrupulously complied with or else, non-compliance, in such a case, would, in itself, may call for interference by the Court with the conviction of the accused. Reference may be made, in this regard, to the case of Directorate of Revenue and another vs. Mohammed Nisar Holia, reported in (2008) 2 SCC 370 , and Saruj alias Ramu vs. State of Uttar Pradesh, reported in (2009) 13 SCC 698 , wherein the Court has clearly taken the view that the provisions of the NDPS Act being harsh in nature, the procedural safeguards, contained in the enactment, must be scrupulously complied with. 29. In the case at hand, what is of utmost importance to be pointed out is that the defence, while cross-examining PW5, did not even impugn his evidence as false, unreliable or untrue. No suggestion was offered to PW5 that the evidence, which he has given, is untrue or false or incorrect. 30. 29. In the case at hand, what is of utmost importance to be pointed out is that the defence, while cross-examining PW5, did not even impugn his evidence as false, unreliable or untrue. No suggestion was offered to PW5 that the evidence, which he has given, is untrue or false or incorrect. 30. The question, therefore, which pertinently arises, in a case of present nature, is : Whether evidence, given by a witness, is required to be necessarily accepted by the Court if the veracity of the evidence, given by the witness, at the trial, is not denied or disputed expressly or by implication, as untrue or incorrect ? 31. While considering the question posed above, one cannot be oblivious of the fact that cross-examination is not the sole means of determining the veracity or reliability of the evidence given by a witness. When the evidence given by a witness is found to be belied by the evidence of other witnesses on record, the Court cannot act upon the evidence of such a witness merely on the ground that his evidence has not been disputed or denied. Such a course cannot be adopted by a Court irrespective of the fact whether the Court is trying a civil or a criminal case. 32. In a case of present nature, it is incumbent, on the part of the Court, to assign reason as to why it finds the evidence of a witness believable and reliable even if his evidence is belied by the remaining evidence on record. 33. To put it a little differently, the Court has the duty to point out as to why it has chosen to believe a witness, whose evidence is belied by other evidence on record and stand thoroughly discarded. It would be no answer for the Court to brand the evidence of a witness as reliable merely on the ground that the witness's evidence has not been disputed or denied. The evidence of every witness has to be decided for its inherent reliability and trustworthiness and not on the basis of mere cross-examination. 34. If the evidence of a witness is found to have been belied or contradicted by other evidence on record or is found to be inherently unreliable, such a witness's evidence cannot be accepted as true merely because the veracity or correctness of his evidence was not disputed or denied at the trial. 34. If the evidence of a witness is found to have been belied or contradicted by other evidence on record or is found to be inherently unreliable, such a witness's evidence cannot be accepted as true merely because the veracity or correctness of his evidence was not disputed or denied at the trial. 35. With regard to the above, a reference may be made to the case of Juwarsingh and others v. The State of Madhya Pradesh ( AIR 1981 SC 373 ), wherein the Court has pointed out that the cross-examination is not the only method of discrediting a witness and if the oral testimony of a witness is contrary to proven facts, the oral testimony of such a witness may be discarded. The Court has pointed out, in Juwarsingh (supra), that if a witness's evidence is, on the face of it, unacceptable, Courts are not bound to accept their testimony merely because there was no cross-examination. The relevant observations, appearing, in this regard, in Juwarsingh (supra), read as under: "Shri Mulla submitted that PWs. 1, 2 and 3 were not subjected to any cross-examination and therefore their evidence should be unhesitatingly accepted. We do not agree with the submission of Shri Mulla. Cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to prove facts their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable, Courts are not bound to accept their testimony merely because there was no cross-examination. " (Emphasis supplied) 36. On the above aspect of law, a reference may also be made to the case of Chaturbhuj Pande and others vs. Collector, Raigarh ( AIR 1969 SC 255 ), wherein it has been pointed out that a Court is not bound to accept the evidence of a witness, who has not been effectively cross-examined by the opponent, inasmuch as judges are not computers and, in assessing the value to be attached to oral evidence of a witness, they are bound to call into aid their experience of life. Infact, the Supreme Court has observed, in no uncertain words, in Chaturbhuj Pande (supra), that it is open even to the appellate Judges to test the evidence, placed before them, on the basis of probabilities. Infact, the Supreme Court has observed, in no uncertain words, in Chaturbhuj Pande (supra), that it is open even to the appellate Judges to test the evidence, placed before them, on the basis of probabilities. The relevant observations, made in Chaturbhuj Pande (supra), at para 6, read thus: "But that is of no assistance to the appellants. As mentioned earlier, the High Court has refused to rely on the oral testimony adduced in support of the appellants' claim as regards the value of the orchard. It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector had not adduced any evidence in rebuttal; but that dos not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities." (Emphasis supplied) 37. On the above aspect of law, we may take note of the case of P. Ram Reddy and others vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others, reported in (1995) 2 SCC 305 , wherein the Court has observed that when a witness is not subjected to effective cross-examination, or when no evidence is adduced in rebuttal, the Court is not obliged to accept the evidence of witnesses as true if they, when tested on the basis of probability, found unreliable. This position of law has been succinctly laid down, in P. Ram Reddy (supra), at para 16, in the following words, "16. Hence, we are unable to think that whenever the statements made by claimants' witnesses in courts are not got over on behalf of the Collector or the LAO by subjecting the witnesses to effective cross-examination or by not adducing evidence in rebuttal, the courts are obligated to accept such statements of witnesses as true, if tested on the basis of probabilities, become unreliable. If the courts were to accept such statements of witnesses as true merely because they are not subjected to cross-examination or effective cross-examination or because evidence in rebuttal thereof has not been adduced, it would amount to doling out public money to the claimants far in excess of their legitimate entitlement for just compensation payable for their lands. If such situation is prevented by courts dealing with claims for compensation by testing the statements of witnesses for claimants on the basis of probabilities, the courts will have performed the duty justly expected of them. Hence, no court which tests the oral evidence of the claimants on the touchstone of probabilities calling into aid, its experience of life, men and matters and find such evidence to be untrustworthy, the same cannot be found fault with." (Emphasis supplied) 38. In view of the fact that the evidence of PW5, whose evidence, we have discussed at great length, stands, instead of being supported, belied on every material aspect by the prosecution's own witnesses, the evidence of PW5 cannot be implicitly relied upon merely because the defence failed, while cross-examining PW5, to deny and dispute the correctness or veracity of his evidence. At the same time, neither the evidence of PWI nor the evidence of other seizure witnesses can be treated as reliable or trustworthy. 39. Because of what have been discussed and pointed out above, we are clearly of the view that the evidence on record is an admixture of half-truth and untruth. Consequently, on the basis of such intrinsically and inherently unreliable evidence, no conviction of the accused-appellants could have been founded and the learned trial Court ought to have accorded, at least, benefit of doubt to the accused-appellants. 40. Situated thus, we find that the conviction of the accused-appellants cannot be sustained and must be interfered with. 41. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence passed against them by the judgment and order, impugned in the present appeal, are hereby set aside, the accused-appellants are held not guilty of the offence, which they have been convicted of, and they are acquitted of the same under benefit of doubt. 42. Let the accused-appellants be set at liberty, forthwith, unless they are required to be detained in connection with any other case. 43. 42. Let the accused-appellants be set at liberty, forthwith, unless they are required to be detained in connection with any other case. 43. With the above observations and directions, this appeal shall stand disposed of. 44. Send back the LCR.