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2015 DIGILAW 174 (GAU)

SWAPAN DEWANJI v. STATE OF ASSAM

2015-02-13

B.K.SHARMA

body2015
ORDER (ORAL) 1. Both the appeals are directed against the judgment of conviction dated 01.10.2013 of the learned Special Judge, Dibrugarh passed in NDPS Case No.05/2011 arising out of GR Case No. 515/2011. By the said judgment, both the accused/appellants have been convicted u/s 20(c) of the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985. Consequently, they have been sentenced to undergo rigorous imprisonment for 10(ten) years and also to pay fine of Rs.1,00,000/- (rupees one lakh) each, and in default, further rigorous imprisonment for 06(six) months. It is submitted that they are in custody since 11.03.2011 and thus, by now, they have undergone sentence for about 04(four) years. Both the appeals having arisen out of the same judgment, they have been heard analogously and are being disposed of by this common judgment. 2. While Ms. L. Sharma, learned counsel represents the appellant in Criminal Appeal (J) No.122/2013, Ms. B. Sarma, learned counsel represents the appellant in Criminal Appeal (J) No.123/2013. Both of them were appointed to assist the Court as Amicus Curie. 3. Both of them submit that because of the contradictions in the evidence of the PWs, more particularly in respect of the date of occurrence, coupled with the procedural violation in respect of the search and seizure as envisaged u/s 42, 49 and 50 of the NDPS Act, the impugned judgment of conviction is not sustainable in law. Per contra, Mr. D. Das, learned Additional Public Prosecutor, Assam, referring to the evidence on record, submits that when the fact of the matter is that Ganja packets were seized from the possession of the accused/appellants, the impugned judgment of conviction is required to be sustained. 4. On 11.03.2011, one Sri Dipjyoti Dadhara (PW-6) ASI of police, Dibrugarh police station, lodged an Ejahar with the Dibrugarh police station stating inter-alia that on 10.03.2011 at 12.30 a.m. on the basis of secret information, accused/appellants along with one Amar Sur were apprehended from a Maruti Esteem Car bearing registration No.AS-23-B-2291, which was parked at Jalukpara Road in front of Kusum Hotel and after thorough search, in presence of witnesses, he recovered suspected Ganja, which were later on weight in presence of witnesses, which were found to be 20 KGs. On the basis of the FIR lodged, Dibrugarh P.S case No.191/2011 was registered u/s 20 NDPS Act. On the basis of the FIR lodged, Dibrugarh P.S case No.191/2011 was registered u/s 20 NDPS Act. It will be pertinent to mention here that although in the impugned judgment of conviction, the prosecution case has been referred to as above, but on perusal of the FIR (Ext-4), it is found that there is no reference to the alleged incident of 10.03.2011 at 12.30 a.m.. What the FIR states is that on 11.03.2011 at night at about 12.30 a.m. on receipt of a secret information, search was made in the aforesaid Maruti Esteem Car and the accused/appellants along with one Sri Amar Sur were arrested. The FIR further states that suspicious Ganja were recovered weighing 20 Kg. In due course, investigation was carried out and completed and formal charge u/s 20(C) of the NDPS Act was framed and explained to the accused/appellants, to which they pleaded not guilty and claimed to be tried. It will be pertinent to mention here that Amar Sur, the other accused turned absconder during the trial and his case was split up and the proceeding continued against the accused/appellants. 5. During trial, the prosecution examined 08(eight) witnesses and none was examined by the defence. However, their statements were recorded u/s 313 Cr.P.C. 6. PW-1 in his deposition stated that about two years back, while he was proceeding to his house from Jalukpara road, on his way, he saw that police detained one Maruti Esteem in front of Kusum Hotel. Police recovered bhang from inside the seat by tearing the same. Police seized the vehicle along with the bhang and his signature was obtained in the seizure list (Ext.1). During cross examination, he stated that the seizure was made at about 10/10.30 p.m. and the seized articles were kept in plastic packets, but he could not specifically say whether the articles shown in the Court on the date of deposition were the same articles seized on the date of occurrence. 7. PW-2 was an employee of Kusum Hotel, who was allegedly present on 10.03.2011 when the incident occurred. He in his deposition stated that at about 11.00 p.m. of 10.03.2011, police came to their hotel and enquired about some boarders. Three persons had come to their hotel in an Esteem Car, which was parked outside. According to him, police recovered some packets from the vehicle, which belonged to the boarders. He in his deposition stated that at about 11.00 p.m. of 10.03.2011, police came to their hotel and enquired about some boarders. Three persons had come to their hotel in an Esteem Car, which was parked outside. According to him, police recovered some packets from the vehicle, which belonged to the boarders. Later on, he came to know that the recovered packets contained contraband Ganja and the police had seized those packets. All the three boarders were arrested. 9. PW-3 in his deposition stated as to how he was called to the police station with weighing apparatus. He had weighed some articles. Thereafter, police seized his weighing apparatus and gave jimma of the said apparatus to him. 10. PW-4 in his deposition stated that he was taken to the police station and his signature was obtained on a piece of paper. In cross examination, he stated that he was not aware as to why his signature was obtained. 11. PW-5 in his deposition stated that about 1 ½ years back at about 10 p.m. while he was returning with his friend Sri Dibyajyoti Saikia, he could see police detaining a vehicle in front of Kusum Hotel. They went to see the incident and came to know from the police that drugs had been recovered from the vehicle. They could see plastic packets reportedly containing Ganja. Police took their signatures in the seizure list. During cross examination, he stated that police did not show them the article seized while their signatures were obtained in the seizure list. He also did not read the seizure list. 12. PW-6 is the informant, who in his deposition stated that on 10.03.2011, he was at Dibrugarh police station as Assistant Sub Inspector of Police. On that day, at about 11.30 p.m., Additional Superintendent of Police, Headquarter arrived at the police station and reported the Officer-in-Charge that he had received one secret information about coming of a Maruti Esteem Car from Dimapur carrying contraband Ganja. Officer-in-Charge, Dibrugarh Police Station recorded the information in the General Diary being GDE No.400 dated 10.03.2011. Thereafter, Additional Superintendent of Police, Headquarter directed the Officer-in-Charge to go to the spot. Accordingly he visited the place of occurrence, where they found one Maruti Esteem Car bearing the aforesaid registration number. This witness stated that three persons were sitting there. They were asked to get down from the car and search was made. Thereafter, Additional Superintendent of Police, Headquarter directed the Officer-in-Charge to go to the spot. Accordingly he visited the place of occurrence, where they found one Maruti Esteem Car bearing the aforesaid registration number. This witness stated that three persons were sitting there. They were asked to get down from the car and search was made. In the search, four numbers of packets were recovered and on opening, it was found to be contraband Ganja. On being weighed, it was found to be 20 kgs of suspected Ganja. 13. PW-7 was the Officer-in-Charge, Dibrugarh police station. He also narrated the same fact. PW-8 in his deposition stated that on 11.03.2011, he was at Dibrugarh police station working as Sub Inspector of Police. Referring to the FIR lodged by the PW-6, he in his deposition stated about registration of the same. The three accused persons were handed over to him and he thoroughly interrogated them, arrested them and forwarded to the Court with a prayer for police remand. 14. On the basis of the aforesaid evidence, the learned trial Court having convicted the accused/appellant with the aforesaid sentence, they have preferred the appeals from jail. 15. There are some inherent contradictions in the testimonies of the PWs. While the FIR refers the incident to be of 11.03.2011 at about 12.30 a.m., the evidence of PW-3 speaks that the incident occurred on 10.03.2011. This witness stated in his cross examination that he went to the police station in the morning. If that be so, the incident occurred on 09.03.2011. However, in the FIR, the incident was referred to as that of 11.03.2011 at 12.30 a.m. While the PW-2 stated that the three accused persons including the appellants were apprehended from the hotel, but it is in the evidence of PW-6 and PW-7 that they were apprehended from inside the car. As narrated above, PW-4 in his deposition stated that he was not aware as to why his signature was obtained in the seizure list. PW-5 also stated in his deposition that while obtaining his signature in the seizure list, he was not shown the articles. He also did not see the recovery of drugs from the vehicle. Pw-6 in his deposition stated that three persons were sitting inside the car. He was categorical in his statement that no authority letter was issued to him for search and seizure. He also did not see the recovery of drugs from the vehicle. Pw-6 in his deposition stated that three persons were sitting inside the car. He was categorical in his statement that no authority letter was issued to him for search and seizure. He also admitted that no initiative was undertaken for arresting or examining the registered owner of the vehicle. PW-7 also stated about apprehending the accused persons from inside the car, which is again contradictory to the evidence of PW-2, according to whom all the three accused persons were inside the hotel. 16. When the accused/appellants were examined u/s 313 Cr.P.C, they stated that although they came to Dibrugarh in the particular car, but they were not in possession of any contraband articles. They also stated that no articles were seized from them. Admittedly the vehicle belonged to Amar Sur as the driver. It is also an admitted position that during trial he absconded and that the owner of the vehicle was not even questioned. Importantly, the prosecution failed to establish that the Ganja was recovered from the conscious possession of the accused/appellants. 17. When some of the witnesses stated that the incident occurred on 10.03.2011, some other stated that the incident occurred on 11.03.2011. In the FIR also, the incident was referred to as that of 11.03.2011 at 12.30 a.m.. On the other hand, PW-3 categorically stated that he had come to the police station on 10.03.2011 morning. PW-4 and PW-5 were unaware as to why their signatures were obtained in the seizure list. 18. With the above kind of evidence, it cannot be said to be a case in which the prosecution established the offence allegedly committed by the accused/appellants beyond all reasonable doubt. 19. As has been held by the Apex Court in Ritesh Chakravarty –vs- State of Madhya Pradesh, reported in (2006) 12 SCC 321 , while dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take place of legal truth. In the case relating to the offence of like nature, stricter degree of proof and higher degree of assurance are required to be established. A person cannot be convicted on a misguided suspicion and/or mere suspicion. 20. In the case relating to the offence of like nature, stricter degree of proof and higher degree of assurance are required to be established. A person cannot be convicted on a misguided suspicion and/or mere suspicion. 20. The prosecution having failed to establish that the accused/appellants were in conscious possession of Ganja allegedly seized from the vehicle, I am of the considered opinion that they are entitled to benefit of doubt. Accordingly, the impugned judgment of conviction dated 01.10.2013 of the learned Special Judge, Dibrugarh stands set aside. 21. Both the appeals are allowed. The appellants namely, Swapan Dewanji and Yoginder Yadav shall be released forthwith, if not wanted in connection with any other case. 22. Registry shall send down the LCR along with a copy of this judgment and order. 23. While appreciating the services rendered by both Ms. L. Sharma and Ms. B. Sarma, learned Amicus Curie, appearing for the appellants, it is hereby provided that they will be entitled to hearing fee of Rs.5000/- (Rupees five thousand) each, to be paid by the appropriate authority on production of the copy of this judgment and order, which the registry shall provide to them.