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2014 DIGILAW 608 (GAU)

Rahim Uddin Mazurbhuyan v. State of Assam

2014-06-06

BIPLAB KUMAR SHARMA

body2014
JUDGMENT : Biplab Kumar Sharma, J. This appeal is directed against the judgment of conviction dated 31st July, 2010 of the learned Special Judge, Cachar at Silchar in NDPS Case No. 2/2006, convicting the accused/appellant under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, "NDPS Act"). Upon such conviction, he has been sentenced to undergo rigorous imprisonment for 10(ten) years and also to pay a fine of Rs. 1,00,000/- (Rupees one lakh) and in default of payment of fine, to undergo rigorous imprisonment for a further period of 1(one) year. The prosecution story in brief is that on 8th January, 2006 at about 4:00 a.m. while the informant Shri Forij Uddin, Constable No. 195 of National Highway P.P., alongwith Constable No. 584, Shri Rathindra Sinha was on patrolling duty at the Tri-Junction of the National Highway at Ashram Road, found the auto-rickshaw bearing registration No. AS-11/A-4192 coming from the side of the Sunlight Hospital. Being signaled, the auto-rickshaw stopped at the Tri-Junction and immediately thereafter, two persons from the auto-rickshaw got down and started running away. The informant and his associate raised hue and cry and some public of the said area came out and apprehended the accused/appellant, who was the driver of the auto-rickshaw. However, his associate succeeded to flee away. 2. Narrating the aforesaid incident, the informant Forij Uddin lodged an F.I.R. on the same day, i.e. 8th January, 2006. According to the F.I.R., the accused/appellant confessed that he was the driver of the auto-rickshaw and that there were three bags containing ganja weighing 71 kgs. The accused/appellant alongwith his auto-rickshaw was detained at the spot and the matter was informed to the In-charge of National Highway PR, who immediately came to the spot. The accused alongwith the auto-rickshaw with three bags containing ganja weighing 71 kgs. was handed over to the In-charge, National Highway P.P. and simultaneously the informant also lodged the F.I.R. S.I. Ranjit Kr. Dutta, the then In-charge of National Highway P.P. arrested the accused, seized the auto-rickshaw and the ganja bags recovered therefrom. He also took samples from the seized ganja and sent the same to FSL for chemical examination. The F.I.R. so received by the In-charge of National Highway P.P. was forwarded to the Officer-in-Charge of Silchar Police Station and thereafter, Silchar Police Station Case No. 41/2006 was registered under Section 20(c) of the NDPS Act. He also took samples from the seized ganja and sent the same to FSL for chemical examination. The F.I.R. so received by the In-charge of National Highway P.P. was forwarded to the Officer-in-Charge of Silchar Police Station and thereafter, Silchar Police Station Case No. 41/2006 was registered under Section 20(c) of the NDPS Act. Thereafter, investigation was carried out and on completion of the same charge-sheet was submitted against the accused/appellant under Section 20(c) of the NDPS Act. In due course, charge was framed against the accused/appellant under Section 20(b)(ii)(c) of the NDPS Act, which was read over and explained to him, to which he pleaded not guilty and claimed to be tried. 3. During trial, prosecution examined seven witnesses and also exhibited ten documents in support of its case. The accused/appellant was also examined under Section 313, Cr.P.C. In his statement, he denied his involvement in the commission of the offence and pleaded innocence. The learned trial Court, raising the following issue for determination, having answered the same vide the impugned judgment of conviction and sentence, the appellant has preferred this appeal. "Whether the accused was found in possession of ganja weighing 71 kgs. illegally in contravention of the Provision of NDPS Act?" 4. I have heard Md. Syed B. Rahman, learned counsel for the accused/appellant and have also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 5. Mr. Rahman submits that there being no clinching evidence against the accused/appellant as regards his conscious possession of the contraband articles (Cannabis), the learned trial Court committed manifest error of law in convicting him. Referring to the evidence on record, he submits that there is absolutely no evidence to show the involvement of the accused/appellant in the incident. According to him, the appellant was only driving the auto-rickshaw of which the other accused persons were the boarders, who were carrying the three bags supposedly containing ganja. He has also placed reliance on two decisions of the Apex Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in, AIR 2000 SC 821 and Avtar Singh and Ors. v. State of Punjab, reported in, (2002) 7 SCC 419 . 6. Countering the above argument, Mr. He has also placed reliance on two decisions of the Apex Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in, AIR 2000 SC 821 and Avtar Singh and Ors. v. State of Punjab, reported in, (2002) 7 SCC 419 . 6. Countering the above argument, Mr. Mazumdar, learned Additional Public Prosecutor, Assam, submits that the very fact that the accused/appellant tried to flee from the place where his auto-rickshaw was stopped would go to show that he was in conscious possession of the contraband articles and was carrying the same in his auto-rickshaw. 7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties and have also very carefully gone through the evidence on record. 8. Exhibit-2 is the F.I.R., in which Forij Uddin (PW 1) stated that there were two persons inside the auto-rickshaw, who had fled away when the auto-rickshaw was stopped. According to the F.I.R., the public could apprehend one of them, who was the accused/appellant. PW 1 in his deposition made during trial stated that the villagers had apprehended the fleeing driver of the auto-rickshaw from where three bags containing ganja were recovered. During cross-examination, he stated that when the accused/appellant was caught, injuries could be noticed on his person. 9. PW 2 is Rathindra Kr. Sinha, who had accompanied the PW 1. He, in his deposition stated that the auto-rickshaw was stopped upon signaling to do so. There were two persons in the auto-rickshaw and both fled away. Although the police personnel tried to apprehend them but they failed. It was the public, who could apprehend one of the fleeing persons. He was the driver, i.e. the accused/appellant. Three bags of ganja were recovered from the auto-rickshaw. In his cross-examination, he stated that the accused/appellant had informed the police personnel that he was taken forcefully by other persons (passengers) and he was not aware as to what the bags contained. Thus, if we go by the evidence of PW 2, the accused/appellant when was caught, was in injured condition and he also informed P.Ws. 1 and 2 that he was not aware as to what was there inside the bags carried by the passengers. 10. PW 3 is the night Chowkidar of Silchar National Highway Bazar, who was present when the incident occurred. 1 and 2 that he was not aware as to what was there inside the bags carried by the passengers. 10. PW 3 is the night Chowkidar of Silchar National Highway Bazar, who was present when the incident occurred. According to him, there were three persons in the auto-rickshaw, who got down and fled away. Out of the three, one could be apprehended, which according to the prosecution, was the accused/appellant. According to this witness also, there were three bags inside the auto-rickshaw containing ganja. The In-charge of the Police Outpost weighed the same with the help of balance obtained from the nearby shop belonging to one Himangshu Das. The weight of the ganja bags was 70 kgs. He also stated that two packets for sample were taken from each bags. 11. PW 4, in his deposition, stated that he could not recollect the physical appearance of the accused. Referring to the incident, he stated that he had accompanied the police to the place of occurrence. He could see the bags containing ganja, which was weighed in his presence. About 70 kgs. of ganja was found. He also stated about the seizure of the ganja in his presence and also the balance and weights. This witness is a seizure witness. 12. PW 5 in his deposition stated that when the auto-rickshaw was stopped, two persons were seen fleeing away, one of whom could be caught, who was the auto-rickshaw driver, i.e. the accused/appellant. In his cross-examination, he denied the suggestion that the accused had informed him that he was forcefully taken by some persons (passengers) to carry the bags. 13. PW 6 is the S.I. of National Highway Patrol Post, who, in his deposition, stated about opening of the diary and launching of the investigation. He also stated that approval of the superior authority was obtained. He further stated about submission of charge-sheet against the accused/appellant under Section 20(c) of the NDPS Act. 14. PW 7 is the In-Charge of the National Highway PP. under Silchar Police Station. He, in his deposition, narrated the incident that occurred on 8th January, 2006. Information being furnished to the Officer-in-Charge of Silchar Police Station; DSP, Headquarter, Silchar and Superintendent of Police, Silchar over phone, they arrived the spot and issued him one authority letter on the spot itself for taking necessary action. Thereafter, charge and seizure was carried out and 71 kgs. Information being furnished to the Officer-in-Charge of Silchar Police Station; DSP, Headquarter, Silchar and Superintendent of Police, Silchar over phone, they arrived the spot and issued him one authority letter on the spot itself for taking necessary action. Thereafter, charge and seizure was carried out and 71 kgs. of ganja was recovered from the auto-rickshaw contained in three bags. He also denied in his cross-examination that the accused/appellant had informed him that he was not aware as to what the bags contained. 15. When the accused/appellant was examined under Section 313, Cr.P.C. so as to enable him to explain the circumstances appearing against him, he stated that two passengers forcefully occupied his auto-rickshaw and carried the bags. He also stated that the said two passengers had assaulted him. He further stated that the bags did not belong to him and belonged to the two passengers. Thus, in a nutshell, his defence is that he had never carried any bags containing ganja but the two passengers had carried the same. According to the accused, he had no knowledge that the bags being carried by the passengers had contained Cannabis (ganja). 16. Above are the evidence on the basis of which the learned trial Court has convicted the accused/appellant and sentenced, as aforesaid. While it is true that three bags containing ganja were recovered from the auto-rickshaw and the passenger(s) had fled away, but there is absolutely no evidence that it was the accused/appellant, who was in conscious possession of those three bags. There are also some discrepancies regarding the number of the passengers. According to PW 1, there were two persons including the appellant in the auto-rickshaw. However, PW 2, who had accompanied PW 1, categorically staled in his deposition that there were three persons, who got down from the auto-rickshaw. It is also in the evidence of PW 1 that when the accused/appellant was caught, injuries were found on his body. It is in this context, Mr. Rahman, learned counsel for the accused/appellant has submitted that since the accused was assaulted by the two passengers, who forcefully occupied the auto-rickshaw for carrying the bags, the accused/appellant sustained injuries. 17. PW 3 in his deposition stated that when the accused/appellant was apprehended, he had told the police personnel that he was taken forcibly by the passengers and also that he did not know as to what was there inside the bags. 17. PW 3 in his deposition stated that when the accused/appellant was apprehended, he had told the police personnel that he was taken forcibly by the passengers and also that he did not know as to what was there inside the bags. 18. As in the instant case, in Abdul Rashid Ibrahim Mansuri (supra), narcotic drugs were recovered from the gunny bags stacked in the auto-rickshaw. However, in absence of any evidence to show that the appellant involved therein had entered into a criminal conspiracy with the other main culprits to transport the contraband, the Apex Court held that the appellant was not liable to be convicted. As in the said case, in the instant case also there is nothing even to suggest that the passenger(s) and the appellant were close to each other or even known to each other earlier. For a ready reference, the relevant portion (paragraph 23 of the judgment) is quoted below:- "23. In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW 2 recollected from memory is capable of helping the accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rickshaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellants and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other, or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them but they absconded themselves and escaped from the reach of the police." 19. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them but they absconded themselves and escaped from the reach of the police." 19. In Avtar Singh (supra), the Apex Court dealing with a case under the NDPS Act held that possession is the core ingredient to be established before the accused involved in such proceeding is subjected to punishment. This case has been referred to by the learned counsel for the appellant to argue that in absence of any evidence to show that the accused/appellant was in conscious possession of the Cannabis (ganja) inside his auto-rickshaw, it will be absolutely unsafe to convict the accused/appellant on the basis of presumption. 20. It is not a case in which the accused/appellant alone is involved. According to the prosecution evidence, referred to above, there were either two or one passenger in the auto-rickshaw. It is the definite plea of the accused/appellant that two passengers forcefully occupied his auto-rickshaw and he had no knowledge as to what the three bags being carried by them had contained. It was also his plea that in such forceful occupation of the auto-rickshaw, he was also assaulted. As per the evidence of PW 1, injuries could be noticed on the person of the accused/appellant, who was driving the auto-rickshaw. In absence of any direct nexus between recovery and conscious possession of the bags containing ganja by the accused/appellant, it will be totally unsafe to convict him drawing a presumption that since he wanted to flee when the auto-rickshaw was stopped he was instrumental in carrying contraband articles. There may be variety of reasons why the accused/appellant tried to flee, one of which is forceful occupation by the passengers even to the extent of force being applied by assaulting him. Solely on the basis of the evidence that the accused/appellant tried to flee from the auto-rickshaw without anything more to show that he was in conscious possession of the contraband articles contained in the bags, I am of the considered opinion that he is entitled to benefit of doubt. 21. For all the aforesaid reasons, this appeal is allowed by setting aside the impugned judgment of conviction dated 31st July, 2010 passed by the learned Special Judge, Cachar at Silchar in NDPS Case No. 2/2006. 21. For all the aforesaid reasons, this appeal is allowed by setting aside the impugned judgment of conviction dated 31st July, 2010 passed by the learned Special Judge, Cachar at Silchar in NDPS Case No. 2/2006. Consequently, the accused/appellant shall be set at liberty forthwith if not wanted in any other case. The Registry shall send down the LCR to the learned trial Court alongwith a copy of this judgment.