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2014 DIGILAW 770 (GAU)

Abdul Malik v. State of Assam

2014-08-05

C.R.SARMA

body2014
Judgment C.R. Sarma, J. 1. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. M.H. Laskar, learned counsel for the appellants. Also heard Ms. A. Begum, learned Addl. PP. This appeal is directed against the judgment and order dated 27.4.2012 passed by the learned Special Judge, Karimganj in Special (NDPS) Case No. 2/2011, whereby the learned Special Judge convicted the appellants under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced them to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 15,000/- in default, suffer simple imprisonment for another period of 6 months each. Aggrieved by the said conviction and sentence the appellants have come up with this appeal. 2. The prosecution case, in brief, is that, on 12.3.2011, at about 10 A.M. the Deputy Commandant (General) SHO BSF Field Team, Silchar, on receipt of specific information regarding transportation of ganja, conducted a joint operation with police from Karimganj police station at Chorgola area under Karimganj police station. While conducting the said operation, they found the appellants coming in an Auto Rickshaw. Accordingly the Auto Rickshaw was stopped and the appellants, who came out from the said Auto Rickshaw, were apprehended with 2(two) bags. The Auto Rickshaw, used by the said appellants, managed to escape. Opening the bags, 16 packets (8 packets in each bag) of ganja were found. According to PW-1, who was an Inspector of BSF seized the said ganja by seizure memo (Ext. 2) and handed over the accused and the seized ganja to the police of Karimganj police station, on the next day i.e. 13.3.2011. On being so handed over police took weight of the seized materials and found that each of the 16 packets contained 1 kg of suspected ganja. Accordingly police arrested the accused persons and took sample from 2(two) packets. The samples were sent to the Forensic Science Laboratory (FSL) and the report submitted by the FSL indicated that the seized items were cannabis i.e. narcotic drugs. After receipt of the FSL report, police submitted charge sheet against the appellants, under Section 20(b)(ii)(B)of the NDPS Act and forwarded the accused persons to the Court to stand trial. 3. The learned Special Judge, Karimganj framed charges under Section 20(b)(ii)(B) of the NDPS Act. After receipt of the FSL report, police submitted charge sheet against the appellants, under Section 20(b)(ii)(B)of the NDPS Act and forwarded the accused persons to the Court to stand trial. 3. The learned Special Judge, Karimganj framed charges under Section 20(b)(ii)(B) of the NDPS Act. The charge was read over and explained to the accused, who pleaded not guilty, they claimed to be tried. 4. In order to prove their case, the prosecution examined as many as 8(eight) witnesses, including the Investigating Officer and a Senior Scientific Officer from FSL. After examination of the prosecution witness, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations brought against them. Their plea was that they were falsely implicated. They declined to adduce defence evidence. 5. Considering the evidence, on record, the learned Trial Judge held the accused persons guilty of the offence under Section 20(b)(ii)(B) of the NDPS Act and accordingly recorded the conviction and sentence as indicated above. 6. Mr. H.R.A. Choudhury, learned senior counsel referring to the evidence, on record, more particularly, the evidence of PW-1 has submitted that though the seizure was made during the day time, in a market place, no attempt was made to call any independent person to stand as witness to the seizure and as such the seizure, made by the paramilitary force i.e. BSF, is not believable. 7. The learned senior counsel referring to the provision of Section 42 of NDPS Act has submitted that there is total non-compliance of the said mandatory provision and as such the impugned conviction and sentence cannot stand the scrutiny of law. 8. In support of his contention the learned senior counsel has relied on the decision held in the cases of Karnail Singh vs. State of Haryana, reported in (2009) 8 SCC 539 and Sukhdev Singh vs. State of Haryana, reported in (2013) 2 SCC 212 . The learned senior counsel has also relied on a recent judgment delivered by a learned single Judge of this Court in the case of Raju Ali vs. Union of India (Crl. A. 174/2012 disposed of on 14.3.2014). 9. Ms. A. Begum, learned Addl. The learned senior counsel has also relied on a recent judgment delivered by a learned single Judge of this Court in the case of Raju Ali vs. Union of India (Crl. A. 174/2012 disposed of on 14.3.2014). 9. Ms. A. Begum, learned Addl. PP, supporting the impugned judgment and order, has submitted that there is sufficient evidence, on record, to show that the appellants were found in possession of Narcotic Drugs i.e. ganja and as such the learned Trial Judge committed no error by convicting and sentencing the appellants. The learned Addl. PP, referring to the evidence of PW-1 and PW-2, has submitted that PW-1, who was an Inspector of BSF, seized the said ganja, in presence of PW-2 and that there is sufficient compliance regarding the seizure. 10. Having heard the learned counsel for both the parties, I have carefully perused the materials on record. From the evidence given by PW-1 i.e. Mr. B.B. Nageswar Rao, who was an Inspector of BSF, it appears that he seized the contraband item from the appellants at the place of occurrence itself. 11. PW-1 stated that on 13.3.2011, he got information from a source that some persons were proceeding towards Karimganj with certain quantity of ganja and accordingly he, accompanied by the local police conducted an operation and found the appellants coming in an Auto Rickshaw. According to PW-1, when the Auto Rickshaw was stopped the appellants came out with 2(two) bags and after opening the bags he found 16 packets of ganja. He stated that he handed over the accused persons along with the seized ganja to the police at Karimganj police station. He has exhibited the seizure memo as Ext-2, whereby the ganja was seized by him. From the Ext-2, it appears that all the witnesses to the said seizure memo belonged to the BSF. No independent person, from the locality, was examined as witness. There is no explanation for not calling any independent person to stand as witness to the said seizure. He also exhibited the FIR as Ext. 1. In the FIR he has stated that he received information on 12th March and accordingly the operation was conducted on the said date. PW-1 is the informant. From the oral evidence, given by PW-1 and FIR i.e. Ext. 1, I find that there is contradiction regarding the date of receipt of information and conducting the operation. 1. In the FIR he has stated that he received information on 12th March and accordingly the operation was conducted on the said date. PW-1 is the informant. From the oral evidence, given by PW-1 and FIR i.e. Ext. 1, I find that there is contradiction regarding the date of receipt of information and conducting the operation. The said contradiction raises doubt about the veracity of the evidence given by the PW-1. Contradicting the evidence of PW-1 and PW-2, another Inspector of BSF, who was also present at the time of the said seizure, stated that he along with the PW-1 had apprehended the appellants on 12.3.2011. 12. PW-3, who was also an Inspector of BSF stated that he accompanied with PW-1 and PW-2, on 12th March, 2011, in conducting the said operation and that the appellants were apprehended with ganja. 13. PW-4, a police personnel from Karimganj police station, stated that on 12.3.2011, on being directed by the O.C., he joined the BSF personnel for conducting a special operation. According to this witness, the appellants were found coming in an Auto Rickshaw and that after stopping the said Auto Rickshaw, the appellants were arrested with 2(two) bags carried by them. He further stated that the bags contained ganja. 14. PW-5 was a shop keeper, whose weighing scale was taken by the police officer to weight the ganja. According to this witness, the weight of the ganja was taken on 13.3.2014 by police. 15. PW-6 was an employee of PW-5. He also sated regarding taking weight of the seized ganja in the police station. 16. PW-7, a Scientific Officer of the FSL, stated that the sample examined by him gave positive case of cannabis. 17. PW-8, a police officer of Karimganj police station stated that, on 13.3.2011, he was entrusted by the O.C. to investigate into the matter. According to this witness, he visited the place of occurrence and that, after returning to the police station with the informant i.e. PW-1 he seized the suspected ganja vide Ext-6. 18. From the above evidence it appears that the PW-1 while conducting the operation with PW-2, PW-3 and PW-4 apprehended the appellants along with the suspected ganja and seized the said item vide seizure memo i.e. Ext-2. The seizure memo was prepared in the Office of the BSF. 18. From the above evidence it appears that the PW-1 while conducting the operation with PW-2, PW-3 and PW-4 apprehended the appellants along with the suspected ganja and seized the said item vide seizure memo i.e. Ext-2. The seizure memo was prepared in the Office of the BSF. But PW-1 very clearly stated that he conducted the search operation on the basis of information received from a source. On being specifically asked, during the cross-examination, PW-1 clearly stated that he did not record the information received from the source regarding movement of the appellants with narcotic drugs. Admittedly, the seizure was made without obtaining any warrant or authorisation. He also did not inform his superior officer about such seizure. 19. Section-42 of the NDPS Act reads as follows:- "42. Admittedly, the seizure was made without obtaining any warrant or authorisation. He also did not inform his superior officer about such seizure. 19. Section-42 of the NDPS Act reads as follows:- "42. Power of entry, search, seizure and arrest without warrant or authorization - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) Enter into and search any such building, conveyance or place; (b) In case of resistance, break open any door and remove any obstacle to such entry; (c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) Detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation 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 sunset and sunrise 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." 20. Section-42 of the NDPS Act requires recording of the information received by the officer conducting the search or seizure. The said provision also requires that the information so recorded is to be sent to the superior officer without any delay. Failure to record such information is clear violation of Section 42 of the NDPS Act. The said provision also requires that the concerned officer should be empowered either by general or special order by the respective government. 21. From the evidence of PW-1, it has been clearly found that, though he had made the seizure on the basis of information received from a source, without obtaining warrant, the information so received was not recorded. Therefore, no information was also sent to his superior officer. 22. A learned single Judge of this Court in the case of Raju Ali (supra) held that no compliance of the provision prescribed by Section-42 vitiated the entire case of the prosecution and accordingly set aside the impugned conviction. In the case of Karnail Singh (supra) the Supreme Court, settling the controversy raised in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (2000) 2 SCC 513 and Sajan Abraham vs. State of Kerala (2011) 6 SCC 692 observed that total non-compliance of Sub-Section 1 and 2 of Section 42 was impermissible. The Supreme Court further observed that compliance of the provisions with satisfactory explanation about the delay would be acceptable in compliance with Section-42. 23. In the case of Sukhdev Singh (supra) the Supreme Court noticing total non-compliance of Section-42 of the NDPS Act set aside the conviction rendered by the trial Court and upheld by the High Court. The Supreme Court in the said case observed:- "24. As per the statement of PW-1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer, PW-1 had more than sufficient time at his disposal to comply with the provisions of Section 42. On the contrary, in the present case, the Investigating Officer, PW-1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 A.M., but he reached the house of the accused at 2 P.M. even when the distance was only 6 km away and he was in a jeep. There is not an iota of evidence, either in the statement of PW-1 or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section-42 of the NDPS Act. 25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which can broadly be stated are that (a) it is a mandatory provision which ought to be construed and complied with strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery (sic prior to recovery)." 24. In view of the above principle laid down by the Supreme Court there is no difficulty in understanding that the provisions prescribed by Section-42 is a mandatory one and total non-compliance of such provisions is a fatal for the prosecution case. As discussed above, PW-1 i.e. the informant, who seized the suspected ganja neither reduced the information into writing nor informed his superior officer, despite getting sufficient. The fact remains that he had seized the ganja on 12.3.2011 at 10 A.M. and handed over the accused persons and the seized ganja to police on the next date i.e. on 13.3.2011. Therefore, there was total noncompliance of the mandatory requirement, prescribed by Section-42 of the NDPS Act. In view of non-compliance of the said mandatory provision, the impugned conviction and sentence cannot be maintained. I find sufficient merit in this appeal and accordingly the appeal is allowed. The impugned conviction and sentence aforesaid are set aside. The appellants shall stand acquitted. They be set at liberty, if not required in any other case. Return the LCR.