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2015 DIGILAW 191 (GAU)

Anaram Nath v. State of Assam

2015-02-18

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of conviction dated 15.2.2014 of the learned Sessions Judge, Morigaon in Sessions (Spl.) Case No. 01/2013, convicting the accused appellant namely Sri Anaram Nath under Section 20(C) of the NDPS Act. Consequent upon such conviction, he has been sentenced to undergo RI for 10 years and a fine of Rs. 50,000/- and in default, to undergo RI for another 6 months. The period of detention already undergone is to be set off. Be it stated here that the accused appellant has been convicted along with another namely Sri Dilip Nath with the same sentence. SI of police Badri Prasad Baruwati of Morigaon Police Station had lodged an FIR with Morigaon Police Station on 19.5.2013 stating therein that on 18.4.2013 when routine checkup of vehicle was going on at Basnaghat Chariali two bags containing suspected Ganja of 5 KG each were recovered from the possession of two accused persons, who were traveling in the Bus bearing registration No. AS-21-C-1237. The information so received was recorded vide G.D. Entry No. 447 dated 18.4.2013. Suspected Ganjas were seized in presence of witnesses by observing all the formalities and they were sealed and packed. The accused persons were arrested and sent to custody. Sample was drawn and sent to FSL. On receipt of examination report from the Deputy Director, Drugs and Narcotics Division, FSL, it was found that positive test for cannabis (ganja) was recorded therein. 2. On receipt of the FIR, Morigaon P.S. Case No. 160/2013 under Section 20(c) NDPS Act. On completion of the investigation charge was framed against the accused persons under Section 20(b)(ii)(c) of the NDPS Act. The charge being read over to the accused persons, they pleaded not guilty and claimed to be tried and accordingly trial commenced. 3. During trial, prosecution examined 9 witnesses including the 10 and exhibited materials and documents. The statements of the accused persons were also recorded under Section 313 CrPC. The learned Trial Court appreciating the evidence on record having convicted the accused appellant along with the other co-accused Sri Dilip Nath as aforesaid, he has preferred this appeal. 4. Mr. N. Bora, learned counsel for the accused appellant referring to the evidence on record submits that there being lack of evidence, the accused appellant is entitled to acquittal. The learned Trial Court appreciating the evidence on record having convicted the accused appellant along with the other co-accused Sri Dilip Nath as aforesaid, he has preferred this appeal. 4. Mr. N. Bora, learned counsel for the accused appellant referring to the evidence on record submits that there being lack of evidence, the accused appellant is entitled to acquittal. He further submits that solely on the basis of the evidence of PW-2, PW-4 and PW-7, the conviction is not sustainable in absence of any evidence corroborating their evidences. On the other hand, Mr. D. Das, learned Addl. P.P., Assam submits that the evidence are overwhelming towards establishing the charge against the accused appellant, there is no question of reversing the said judgment. 5. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire evidence on record. 6. PW-1 is the Deputy Director, Drugs & Narcotic Division, DFS, Assam, who in his deposition stated about the particular parcel sent to him in a sealed envelope. The said envelopes marked as A, B, C and D contain 24 Gm dry plant each. On examination, he found positive tests for cannabis (Ganja). Ext-1 is his report and Ext-1 (1) is his signature. Ext-2 is the forwarding letter. 7. PW-2 is the conductor of the bus, in which, the accused persons were traveling allegedly along with two bags carrying Ganja. He in his deposition categorically stated about boarding the bus by the two accused persons along with two black colour bags. On being asked, he was replied and told by the accused persons that they had carried cloths in both the bags. Upon cross examination, he stated that since two bags carried by the accused persons were bigger in size compared to other bags of other passengers, he had asked about the contents of the same. According to this witness, when the bus was intercepted by police and checked, Ganjas were recovered from the said two bags. 8. PW-3 is a seizure witness, who in his deposition stated that he signed the seizure list. He was in his shop and saw that police had seized two packets and prepared documents. He weighed the seized Bhang by a scale as was directed by police and found each packet contained 5 Kg of Bhang. 8. PW-3 is a seizure witness, who in his deposition stated that he signed the seizure list. He was in his shop and saw that police had seized two packets and prepared documents. He weighed the seized Bhang by a scale as was directed by police and found each packet contained 5 Kg of Bhang. Ext-3 and Ext-4 are seizure lists and Ext-3 (2) and Ext-4(2) are his signature. Ext-5 is the seizure list of balance and weight along with his signature therein. In the cross examination, he stated that the accused persons were brought by police from the vehicle along with Ganja. 9. PW-4, in his deposition stated that while he posted at Morigaon Police Station and was carrying on duty of vehicle checking at Basnaghat with the help of CRPF personnel. On the date of the incident, the vehicle in question was intercepted, which was coming from Guwahati to Morigaon. According to him, one CRPF person namely Chandra Bhushan found two packets inside the vehicle and informed him. Then he came and asked for owner of that packets and both the accused persons admitted carrying of the said packets containing Ganja. He informed the O/C Morigoan PS and after taking weight, the packets found to be 5 Kg each. He opened the packets and found that they contain full of Ganja. In cross examination, he stated that he was present at the time of taking weight of the bags and seizure. 10. PW-5 stated in his deposition that on 18.4.2013 police had called him to Basnaghat along with electronic balance and directed to take weight of three parts of Ganja containing 24 gm each and accordingly he did so. The balance was seized by Ext-6. PW-6 is a seizure witness, who on his way from Morigaon to his house saw police checking at Basnaghat. He was shown two packets containing Ganja and recovered from the accused persons. He stated in his deposition that the seized Ganja was weighed by a computerized scale and found 5 Kg in each packet. 11. PW-7 is the driver, who in his deposition stated as to how the two bags containing Ganja were recovered from the possession of the accused persons. PW-8, in his deposition stated that on 18.4.2013, he was posted at Morigaon Police Station as TSI. 11. PW-7 is the driver, who in his deposition stated as to how the two bags containing Ganja were recovered from the possession of the accused persons. PW-8, in his deposition stated that on 18.4.2013, he was posted at Morigaon Police Station as TSI. He was informed by Havildar Tankeswar Nath over telephone that suspected Ganja was recovered from the vehicle in question from two persons. The information was entered into writing vide GD Entry No. 447 dated 18.4.2013. He then proceeded to the P.O. along with two other constables and took preliminary steps. Both the accused persons were detained with Ganja. He made arrangement for weight of the Ganj a by bringing scale. Sample was taken from the packets and weight was made in an electronic scale. Thereafter the sample was sent to FSL for examination and as per the FSL report, it tested positive. He referred to Ext-9 FIR identifying his signature as Ext-9( 1). He also referred to M. Ext 1 and 2 as the seized Ganja packet. He stated in his cross examination that the FSL report is dated 16.5.2013 and the FIR was filed on 19.5.2013. 12. PW-9, in his deposition stated about receipt of the FIR and register of Morigaon P.S. Case No. 160/2013 and as to how the investigation was entrusted to the I/O. 13. On the basis of the aforesaid evidences, particularly the evidences of PW-2, PW-4 and PW-7, learned Trial Court has convicted both the accused. Although, it was argued by Mr. N. Bora, learned counsel for the accused appellant that the CRPF personnel namely Chandra Bhushan, who was instrumental in recovering the Ganja packets having not been examined, it was fatal to the case of the prosecution. However, as per the evidence of PW-4, the said Chandra Bhushan found two packets inside the vehicle and the same was informed to him. Thereafter, PW-4 came and asked for the ownership of the bag, to which, the accused persons admitted that they were the owner of the bags containing Ganja. This part of the evidence of PW-4 could not be dislodged or contradicted during cross examination. 14. Above apart, PW-2 and PW-7 categorically stated in their deposition about boarding the bus by the two accused persons with two bags. It was those bags, in which, Ganja packets were recovered. This part of the evidence of PW-4 could not be dislodged or contradicted during cross examination. 14. Above apart, PW-2 and PW-7 categorically stated in their deposition about boarding the bus by the two accused persons with two bags. It was those bags, in which, Ganja packets were recovered. Thus, there is no escape from the conclusion that the said two bags belonged to the two accused persons. 15. Above being the position, I see no reason to interfere with the findings recorded in the impugned judgment of conviction. However, it is noticed that although the charge was framed against the accused appellant and one Sri Dilip Nath under Section 20(b)(ii)(c) of the NDPS Act, but they have been convicted under Section 20(c) of the Act. Admittedly, although the bags were recovered from the possession of the accused persons containing cannabis (Ganja) 5 Kg each, as per the notification specifying small quantity and commercial quantify, 5 Kg of Ganja falls under the category of in between small quantify and commercial quantity. So far commercial quantity is concerned minimum quantity is 20 Kg. Punishment for contravention in relation to cannabis plant and cannabis provides imprisonment for a term, which shall not less than 10 years. This provision is applicable in case of commercial quantity [refer Section 20(bXii)(C)]. Admittedly, the packets recovered from the possession of the accused appellant did not contain commercial quantity. As submitted by the learned counsel representing the accused appellant, it was in between small and commercial quantity and thus the accused appellant could not have been convicted under Section 20(b)(ii)(C). The quantity recovered being relatable to in between small and commercial quantity, punishment that will attract is under Section 20(bXii)(b). As per the said provision, when the quantity is lesser than commercial quantity but greater than small quantity, punishment of RI may extend to 10 years and with fine which may extend to one lakh. 16. In view of the above, the conviction of the accused persons stand modified to that of Section 20(b)(ii)(b). The accused appellant has already undergone imprisonment pursuant to the impugned judgment of conviction. Prior to that, he was all along under custody ever since the FIR was lodged. 16. In view of the above, the conviction of the accused persons stand modified to that of Section 20(b)(ii)(b). The accused appellant has already undergone imprisonment pursuant to the impugned judgment of conviction. Prior to that, he was all along under custody ever since the FIR was lodged. Having regard to the facts and circumstances and also the quantity of Ganja that was recovered from the possession of the accused persons, upon modification of the conviction as aforesaid, the sentence is reduced to the period already undergone by the accused appellant. As regards fine of Rs. 50,000/-, the same also stands modified to Rs. 10,000/-. On being asked as to whether the other co-accused namely Sri Dilip Nam, who has also been convicted by the impugned judgment has preferred any appeal or not, learned counsel for the parties submit that they are not aware as to the same. Irrespective of the said fact, since the other co-accused i.e. the accused appellant has been convicted and sentenced as aforesaid, the said benefit shall also stand extended to him. Accordingly, both the accused persons shall be released forthwith, if not wanted in any other case, subject, however, payment of fine of Rs. 10,000/- each. 17. The appeal is allowed to the extent indicated above. Registry shall send back the LCR along with a copy of this judgment and order. Appeal Partly Allowed.