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2014 DIGILAW 404 (GAU)

Biswanath Das & Anr. v. State of Assam

2014-04-03

INDIRA SHAH

body2014
Dr. Indira Shah, J -- This is an appeal against the judgment and order dated 03.06.2010 passed by the learned Special Judge, Kokrajhar, in Special Case No. 01/2009 convicting the appellant under Section 20(ii)(C) of NDPS Act and sentencing them thereby to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 100,000/- lakh each, in default, further rigorous imprisonment for 2 years each. 2. Heard Mr. H. Hoque, learned Amicus Curiae and Mrs. A. Begum, learned Addl. Public Prosecutor, Assam. 3. The prosecution story, in brief, is that on 01.07.2009 at about 5:00 p.m. the accused Biswanath Das and Adari Das were noticed by the people at Gossaigaon bus stand. They had three bags in their possession which were suspected to contain ganja. The head constable Shri Lakhi Kanta Boro, who was on duty at Gosaigaon bus stand was immediately informed who in turn lodged an information over telephone to Police at Gossaigaon Police Station. The information so, lodged by the head constable was entered in the general diary entry and S.I. Tapas Kr. Das was endorsed to investigate the matter. Accordingly, Tapas Kr. Das (PW-12) came to the Gossaigaon bus stand and found the accused persons along with three gunny bags which contained ganja. PW-12 immediately informed the Sub-Divisional Police Officer of Gosaigaon, who along with Officer-in-Charge of the Police Station also arrived at the place of occurrence. He (PW-12) was then authorized by the SDPO to investigate the case. The suspected contraband ganja was seized by PW-12 in presence of witnesses. It was weighted and found that three bags contained 57 k.g of contraband ganja. Samples drawn from the seized ganja were sent to forensic laboratory for examination. On receipt of report from the forensic laboratory, which shows that the samples gave positive taste of cannabis(ganja), formal FIR was lodged by PW-12 and Gossaigaon Police Station No. 194/2009 under Section 20 (b) of NDPS Act was registered. On completion of investigation charge-sheet was submitted under Section 20(b) of NDPS Act. Learned trial Court framed the charge under section 20(ii)(C) of NDPS act against both of the accused. The accused persons pleaded not guilty to the charge and claimed to be tried. 4. Altogether 12 witnesses were examined by the prosecution. On completion of investigation charge-sheet was submitted under Section 20(b) of NDPS Act. Learned trial Court framed the charge under section 20(ii)(C) of NDPS act against both of the accused. The accused persons pleaded not guilty to the charge and claimed to be tried. 4. Altogether 12 witnesses were examined by the prosecution. The accused persons in their statement recorded under Section 313 Cr.P.C. denied all the allegations levelled against them and pleaded that they were innocent. However, no defence evidence was adduced. On conclusion of trial the accused were convicted and sentenced as stated earlier. 5. It is submitted by Mr. S Hoque, learned Amicus Curiae that the prosecution failed to establish that the contraband Ganja was found in exclusive possession of the accused persons. None of the witnesses examined by the prosecution saw the accused persons holding bags which contained ganja. They were not seen carrying the bags by the witnesses. 6. Per-contra, learned Addl. Public Prosecutor supporting the judgment passed by the learned trial court submitted that the accused persons were seen along with the ganja bags and they confessed before the public that the bags belonged to them. 7. In the case of Inder Sain Vs. State of Punjab 1973 2 SCC 372 it was held that the word “possess” connotes some sort of knowledge about the thing “ possessed”. It was also held that the prosecution again proved that the accused was in control of something in which the circumstances which shows that he was accenting to being in control of it. Once it is proved by the prosecution that the accused was in physical custody of opium, it is for accused to prove statutorily that he has not committed the offence by showing that he was not knowingly in possession of opium. Thus, the burden of proving all the fact that the accused was not knowingly in possession of the contraband ganja would lie on soldiers of the accused person. 8. In the case of Nadal Vs. State of H.P 2003 7SCC 465 it was observed that once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. It was also held that section 35 of the Act gives a statutory recognition to this possession by making it statutory presumption available in law. It was also held that section 35 of the Act gives a statutory recognition to this possession by making it statutory presumption available in law. In Case of Gunwantlal Vs. State of M.P 1972 2 SCC 194 it was held that the possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given is also special to such power or control. 9. In this case PW-1 Amitab Kr. Basumatary, saw the accused persons being apprehended by the public along with three bags. PW-1 informed the hawaldar on duty who called police party from Gossaigaon police station. Three bags were opened in presence of PW-1 and other witnesses. The contraband ganja was weighted and seized in his presence. In cross-examination PW-1 stated that the accused persons confessed before him that the ganja belonged to them and they were carrying ganja from Barpeta. PW-1 was informed that the accused persons were carrying ganja in a bus. That they were thrown out by the bus conductor along with their bag and baggage for not paying bus fare and, thereafter, they were apprehended by the people. 10. Corroborating the evidence of PW-1, PW-2 Kamal Basumatary stated that there was an altercation between the accused persons and the bus conductor. The bus conductor compelled the accused persons to get down from the bus along with their bags as the bags carried by the accused persons contained ganja like substance. PW-2 also witnessed the seizure of ganja. The ganja was weighed and the samples were drawn in his presence. In cross-examination it is stated that the male accused was unable to walk properly. Therefore, the female accused helped him to get down from the bus. It was the bus conductor who informed that the accused persons were carrying ganja in three gunny bags and then police was informed. 11. PW-3 Nabajit Basumatary saw the accused persons were gheraoed by the people and it was informed to him that they were in possession of ganja in three bags. PW-3 also stated that the accused confessed that they were carrying ganja from Barpeta. 12. PW-4 Prince Prasad is a seizure witness. PW-5 Lakhi kanta Boro was the Havildar of police, on duty at the bus stand. PW-3 also stated that the accused confessed that they were carrying ganja from Barpeta. 12. PW-4 Prince Prasad is a seizure witness. PW-5 Lakhi kanta Boro was the Havildar of police, on duty at the bus stand. The people at bus stand informed him that the accused persons were in possession of three gunny bags which contained suspicious material. On his query the accused persons told him that the gunny bags belong to them and the bags contained ganja. Immediately, PW-5 informed police at Gossaigaon Police Station over telephone. The Officer-in-Charge and other police personals came and weighted the ganja in his presence. The bags containing ganja were seized at the place of occurrence. 13. PW-6 Moizuddin S.K. is a reported witness. PW-7 Hasina Banu witness the seizure of Rs.10,000/- from the possession of female accused, Adari Das. The weighting scale and balance were taken from the shop of PW-8. PW-8 weighted the samples of ganja as per the direction of the police. PW-9 Sanjit Singh also stated that the accused persons confessed that the ganja packet belonged to them. 14. PW-10 Pradip Ch. Saha, as a photographer, he took photographs of the accused persons as per direction of the police. 15. PW-11, S.I., Munindra Kr. Das, after completion of investigation submitted the charge-sheet against the accused persons. 16. PW-12 Tapan Kr. Das had investigated the case. On being authorized by his Superior Officer i.e., SDPO, he sent the samples of ganja packet to forensic laboratory. He recorded the statement of the witnesses and stated that the accused persons were forwarded to judicial custody. He admitted in his cross-examination that the witnesses did not state before him that the accused persons had confessed before them that they were carrying ganja. 17. On perusal of the statement of witnesses recorded by the investigating officer it appears that although the accused persons did not confess that the bags they were carrying contained ganja, they had admitted that they were carrying bags and the fact remains that the bags contained contraband ganja. 18. It transpires from the evidence of PW-2 who is an employee of Gosaigaon bus association that he was present at the bus station at the time of occurrence. He witnessed the altercation between the accused persons and the bus conductor. He also saw the accused persons were asked by the conductor to get down from bus with their bags. 18. It transpires from the evidence of PW-2 who is an employee of Gosaigaon bus association that he was present at the bus station at the time of occurrence. He witnessed the altercation between the accused persons and the bus conductor. He also saw the accused persons were asked by the conductor to get down from bus with their bags. The bus conductor informed him that the bags contained ganja. PW-3 was informed by the accused persons that they were carrying the bags from Barpeta. Similarly, PW-5 stated that the accused persons admitted that they were carrying bags containing ganja. 19. The accused persons in their statement recorded under Section 313 Cr.P.C stated that they came to visit kamakhya temple from Malda. They failed to give any explanation how they were apprehended by the public at Gossaigaon bus stand. Witnesses examined by the prosecution had no enmity against the accused persons to rope them in any false case. 20. The evidence adduced by PW-2 and PW-5 clearly established that the accused persons were in conscious position of the bags containing ganja. 21. Although the bus conductor who compelled the accused persons to get down from the bus was a material witness. But non-examination of the bus conductor is not fatal for the prosecution. The Investigating Officer in his evidence has explained that the public who had apprehended the accused did not inform him number of the bus or name of the driver or handiman and therefore, it appears that the conductor of the bus could not be cited as a witness. 22. There is no denial of fact that the accused persons were compelled to get down from the bus with their bag and baggage and, thereafter, they got down. The public suspected that the bags they were carrying contained ganja and the FSL report clearly shows that the samples from seized contraband were ganja. Therefore, the learned trial court has rightly convicted the accused persons under Section 20(ii)(C) of NDPS Act. The Judgment of the learned trial court needs no inference. Accordingly, this appeal is dismissed and disposed of. 24. Return the LCR along with a copy of this judgment.