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Gauhati High Court · body

2014 DIGILAW 314 (GAU)

Raju Ali v. Union of India

2014-03-14

B.D.AGARWAL

body2014
JUDGEMENT AND ORDER (ORAL) The appellant herein has been convicted under Section 20(b) (ii) (C) of the NDPS Act, 1985 vide judgment dated 20.6.2012 passed by the learned Addl. Sessions Judge, Kamrup in Sessions (Spl) Case No. 176(K) of 2006. After convicting the appellant for the aforesaid offence he has been sentenced to undergo Rigorous Imprisonment for 10(ten) years and also to pay fine of Rs. 1,00,000/- (Rupees one lac) only. Being aggrieved by the conviction and sentence the appellant has preferred this appeal. 2. Heard Mr. HRA Choudhury, learned Sr. counsel, assisted by Smt SK Nargis, learned counsels for the appellant and Mr. R. Dubey, learned Standing counsel for the respondent. I was also thoroughly taken to all the oral evidence of the witnesses of the prosecution and the record. I have also considered the prayer of the respondent for allowing them to adduce additional evidence and the said application has been registered as Crl. Misc. Case No. 61 of 2014. 3. The gist of the prosecution case is that on 5.1.2006 PW 1, who was the Inspector of Customs Department at Guwahati received a secret information that a truck coming from Tinsukia and going towards Bhopal would be carrying contraband drug (Ganja) 4. On the basis of the said information a team of Inspectors and constables was constituted. They also picked up two witnesses from Guwahati city and proceeded to the National Highway at a distance of 30 KM from the city. It appears from the record that the team left Guwahati city at around 10 pm and a truck bearing registration No.MP-17C 3192 was intercepted at Baihata Chariali. It was at about 4 am. After checking the goods loaded in the truck some gunny bags containing ganja were also found in the truck. Accordingly, the truck was sent to the office of the Customs department at Guwahati and contraband drug weighing 938.6 kg was seized vide exhibit-1. It was followed by recording of the statements of the driver and occupants of the truck and finally charge sheet against four persons was submitted on 3.7.2006. It may be mentioned here that the truck was carrying household goods belonging to one Lt.Col. S.Patranabis from Tinsukia to Bhopal. It was followed by recording of the statements of the driver and occupants of the truck and finally charge sheet against four persons was submitted on 3.7.2006. It may be mentioned here that the truck was carrying household goods belonging to one Lt.Col. S.Patranabis from Tinsukia to Bhopal. At the relevant time, along with the driver and the handyman one Lans-naik Taranjit Singh was also travelling in the truck on behalf of the army officer, being the representative of the household goods. One another person namely, Harish Yadav was also found travelling in the truck. All these four persons were made accused in the case. During the course of the trial the driver of the truck namely, Devender Giri and another co-accused Tarangjit Singh an army officer carrying the household goods have been acquitted. In this way only the handyman of the truck has been convicted and the appeal is confined to only one accused. It may further be mentioned here that one Surinder was the owner of the contraband, who had loaded the contraband in the truck but no serious efforts were made to arrest him. Strangely, he was also not shown as the accused in the case at all. 5. To prove the aforesaid case the prosecution examined altogether 13 witnesses. PWs-1 to 11 are the officers of the custom department and PWs-12 and 13 are the seizure witnesses. The defense case was of total denial and no evidence in defense was adduced in the trial court. 6. The conviction of the appellant has been assailed basically on the ground that the appellant had no role in loading and transporting the goods. According to the learned senior counsel for the appellant the household goods were loaded at Tinsukia and the appellant was unaware of loading of ganja on the way. On the other hand, Sri Dubey, learned counsel for the respondent submitted that ganja was loaded half-way, at a place known as Rowta, and this was within the knowledge of the appellant. This submission was made on the basis of the statements of the appellant made u/s 67 of the NDPS Act. 7. Sri Choudhury, learned senior counsel has basically challenged the impugned judgment on the ground that the search and seizure was carried out in presence of procured witnesses and not before independent and respectable persons from the locality. This submission was made on the basis of the statements of the appellant made u/s 67 of the NDPS Act. 7. Sri Choudhury, learned senior counsel has basically challenged the impugned judgment on the ground that the search and seizure was carried out in presence of procured witnesses and not before independent and respectable persons from the locality. The learned senior counsel also submitted that provisions of Section 42 (1) and (2) of the NDPS Act were not complied with. Submitting that non-compliance of the requirements of Section 42 is fatal to the prosecution and in support of his submission the learned counsel referred to the Judgments of the Supreme Court rendered in the case of Karnail Singh -vs- State of Haryana; (2009) 8 SCC 539 , Sukdev -vs- State of Haryana ; (2013) 2 SCC 212 , Kishan Chand -vs- State of Haryana : (2013) 2 SCC 502 and Directorate of Revenue -vs- Mohameddan Nisar Holia; (2008) 2 SCC 370 ,. 8. All these judgments have dealt with the consequence of non-compliance of the provisions of search and seizure and the procedure to be followed on receipt of secret information and also the steps to be taken pre and post seizure of contraband drugs. Out of the four judgments the case of Karnail Singh is the judgment of a Constitution Bench, which has been followed in other cases. 9. In the case of Karnail Singh (supra) the Hon’ble Supreme Court was considering conflicting views taken by the Apex Court in two different cases with regard to implication of non-compliance of the provisions of Section 42 and has laid down the following law : “35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” 10. For ready reference the relevant portions of Section 42 of the NDPS Act are also reproduced below : “42. Power of entry, search, seizure and arrest without warrant or authorization. (1) ***** ***** ***** Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 11. In the case at hand the evidence of the witnesses disclose that PW-1 had received secret information in the evening hours of 5.1.2006. The exact time of receiving information is not available in the record. However, from the evidence of the PW-13 it is gathered that he was contacted by a Custom officer at 7.30 pm and requested him to accompany their team to Baihata Chariali. If that be so, the Customs officer must have received the secret information much prior to that. PWs-8 and 9 have deposed that they left from city office at Guwahati between 9.30 to 10 pm. Despite getting more than three hours PW-1 neither did record the information in the register nor forwarded such report to his superior officers before proceeding to intercept the truck. 12. In the case of Karnail Singh (supra) their Lordships have emphasized that if the police officer/custom officer is in the police station or in the office the information should be taken down immediately. 12. In the case of Karnail Singh (supra) their Lordships have emphasized that if the police officer/custom officer is in the police station or in the office the information should be taken down immediately. The only exception is that if the officer receives secret information while on patrol duty or otherwise the information may be recorded in the register as soon as it is practicable and the intimation of the information should be given to the superior official forthwith. As many as 6 Inspectors/ Superintendent had given oral deposition in the trial court. Strangely, all these officers maintained a stoic silence to depose anything about the recording of the secret information in any register and communication thereof to the superior authority. The case was heard on 7.1.2014 but judgment was postponed only for obtaining second part of the judgment, whereby sentence was prescribed by the trial court, which was not filed by the appellant earlier. When the case was taken up for final disposal on 10.1.2014 Sri Dubey learned counsel for the customs department prayed for adjourning the hearing to enable him to file an application for additional evidence. Pursuant to the said adjournment the respondent has filed an application on 23.1.2014 wherein the details of recording of secret information have been placed. However, the prayer for adducing additional evidence under the provisions of Section 391 Cr.PC has been vehemently opposed by the learned counsel for the appellant. 13. Sri Choudhury, learned counsel for the appellant further submitted that prayer for adducing additional evidence cannot be acceded at this stage as it would amount to giving an opportunity to the prosecution to fill-up the lacunae. In my considered opinion also the prayer for additional evidence cannot be accepted at this belated stage. Not only it will be prejudicial to the accused but there will be every opportunity to fill-up the lacunae and improve the deficiencies in the prosecution case as well. Besides this, the appellant is in custody since last more than 5 ½ years and at this stage the case cannot be relegated back to the trial court. Hence, the prayer for adducing evidence is hereby rejected. 14. Even otherwise the documentary evidence regarding recording of information in a register does not fulfill the requirements of law. In the register no time of receipt of secret information has been noted down. Hence, the prayer for adducing evidence is hereby rejected. 14. Even otherwise the documentary evidence regarding recording of information in a register does not fulfill the requirements of law. In the register no time of receipt of secret information has been noted down. Besides this, the information was received by PW-1 Sri SS Basumatary whereas the information was recorded in the register by one H Ginjalam (PW-4). This is not in conformity with the law laid down by the Hon’ble Supreme Court in the case of Mohammand Nirsa Holia (supra). In the said case in para-19 it has been held that first information should be reduced into writing by the person who receives the information at the first instance. Hence, the entire case is vitiated for total non-compliance of the requirements of mandatory provisions of Section 42. 15. The above apart the alleged search and seizure has been allegedly proved through the evidence of PWs-12 and 13. I have already noted earlier that PWs-12 and 13 were the residents of Guwahati city and they were picked up by custom officers in advance with an alibi that independent witnesses from the locality may not co-operate with them. In my considered opinion if independent witnesses from Guwahati city were ready to co-operate the custom officials for whole night and that too without sending any information to their respective families there was no reason for the custom officers to entertained a doubt that no local person would be available to witness search and seizure. In my considered opinion since the information was received in the evening hours on 5.1.2006 and since the truck was intercepted at 4 am in the morning the custom officers had enough time to approach the nearest police station to arrange local independent witnesses or the government officers to witness the seizure. Hence, PWs 12 and 13 cannot be said to be independent and respectable inhabitants of the locality, as required u/s 100(4) of the Cr.P.C.. On this ground also the entire prosecution case is not above board. 16. For the foregoing reasons the impugned judgment is hereby set aside. The appellant is directed to be set at liberty forthwith, if not wanted in any other case.