Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 327 (GAU)

Santosh Kr. Pandey v. State of Assam

2015-03-18

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of conviction dated 12.05.2008 of the learned Special Judge, Sonitpur, Tezpur in Special (NDPS) Case No. 02/2005. By the said judgment, while convicting the accused/appellant along with another namely, Anil Kumar Mishra u/s. 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, he has been sentenced to undergo rigorous imprisonment for 10 (ten) years with fine of Rs. 1,00,000/- (Rupees one lakh) and in default of payment of fine, to undergo further rigorous imprisonment for 06 (six) months. On 16.01.2005, the Sub Inspector of Police, Dhekiajuli Police Station, lodged an Ejahar with the Dhekiajuli Police Station with the allegation that the Officer-in-Charge of the said Police Station came to know from reliable sources that some persons wearing Army dresses were carrying Ganja illegally in a bus bearing registration No. AS-10-4414, which was coming from Tezpur and going towards Siliguri. On being so informed, the Officer-in-Charge, Dhekiajuli Police Station furnished the information to Circle Inspector of Dhekiajuli and as per the order of the said Circle Inspector, the informant along with Sub Inspector, Nagen Bora left for conducting search on that vehicle on the 52 National Highway. On 15.01.2005 at about 4.15 p.m., the informant Nandeswar Das had given signal to stop the bus and when the bus stopped, he along with Officer-in-Charge of Dhekiajuli Police Station conducted search on the said bus and seized the following articles from the possession of the accused persons:- (i) 33.55 Kgs of ganja which was packed with a black coloured polythene kept inside a black coloured tin trunk measuring 30" x 18" x 13" in size where there was written as S.K. Pandey No. 13865788 on the trunk and polythene cover. (ii) 46.22 Kgs of ganja which was packed with a black coloured polythene kept inside a black coloured tin trunk measuring 33" x 18" x 15" in size wherein it was written A.K. Mishra No. 14473580M on the trunk and the polythene cover. (iii) 25.09 Kgs of ganja which was packed with a black coloured polythene kept inside a brief case (Samsung) measuring 24" x 18" x 7" in size along with briefcase and packing polythene. (iii) 25.09 Kgs of ganja which was packed with a black coloured polythene kept inside a brief case (Samsung) measuring 24" x 18" x 7" in size along with briefcase and packing polythene. (iv) 22.10 Kgs of ganja which was packed with a black coloured polythene kept inside a briefcase (ALFA) measuring 24" x 18" x 7" in size along with brief case and packing polythene. 2. On receipt of the FIR, Dhekiajuli P.S. Case No. 18/2005 was registered u/s. 140 IPC r/w. Section 20(b)(i) of the NDPS Act and Sri Nandeswar Das, Sub Inspector of Police was entrusted with the investigation. Dhekiajuli P.S. GD Entry No. 521 dated 15.01.2005 was made in connection with the case. The Investigating Officer seized the contraband articles in presence of witnesses and weighed the same. The Investigating Officer also took samples from the seized articles and sealed the same in presence of witnesses and sent the samples to the Director of Forensic Science Laboratory, Guwahati for examination. As the samples showed positive test for Cannabis (ganja), the Investigating Officer submitted charge sheet against the accused persons u/s. 140 IPC r/w. Section 20(b)(i) of the NDPS Act. 3. Charge having been framed against the accused persons under the said Section, the accused persons were read over and explained the same, to which, they pleaded not guilty and claimed to be tried. Thereafter, trial commenced. 4. During trial, the prosecution examined 09 (nine) witnesses. The accused persons were also examined u/s. 313 Cr.P.C. 5. When the matter was last taken up on 13.02.2015, noticing the fact that the son of the present appellant had already deposited the fine amount of Rs. 1,00,000/- (Rupees one lakh), information was sought for as to whether the accused/appellant having already completed the period of sentence was released or not. Mr. D. Das, learned Additional Public Prosecutor, Assam upon information submits that both the accused persons have been released from jail. Thus the accused/appellant has already undergone the sentence imposed on him vide the impugned judgment of conviction. 6. I have heard Mr. M.K. Das, learned Amicus Curie appearing for the accused/appellant and have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record. 7. Thus the accused/appellant has already undergone the sentence imposed on him vide the impugned judgment of conviction. 6. I have heard Mr. M.K. Das, learned Amicus Curie appearing for the accused/appellant and have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record. 7. The learned trial Court raising the following point for determination having answered the same in the affirmative vide the impugned judgment of conviction and sentence, the accused/appellant has preferred this appeal:- (1) Whether on 15.01.2005 at Dhekiajuli Town, the accused persons Anil Kumar Mishra and Santosh Kumar Pandey illegally possessed commercial quantity of ganja while they were traveling in Bus bearing Registration No. AS-10-4414, as alleged? 8. A query was made vide the aforesaid order dated 13.02.2015 as to whether the other co-accused namely Anil Kumar Mishra has also preferred any appeal against the impugned judgment of conviction. As per the note furnished by the Registry, he has not preferred any appeal. As per the note dated 16.03.2015 furnished by the Registry, on verification through Filing and Computer Section, no other case has been found in respect of the impugned judgment of conviction. 9. P.W.-1 in his deposition stated that on the day of occurrence, he had to go to Tezpur to repair the bus in question. But as the repairing could not be completed, he traveled in the said bus from Tezpur to Dhekiajuli. He further deposed that the accused persons boarded the bus at Tezpur ASTC Station. The bus was stopped at Dhekiajuli Township by the police and the accused persons were caught and were also asked to bring out their articles. On their identification, their belongings were uploaded from the bus. He remembered that the articles were in two big trunks. He further deposed that the police took the accused persons along with their belongings inside the Dhekiajuli Police Station. Thereafter, police obtained his signatures on some blank papers, Ext. 1, Ext. 2 and Ext. 3. He further deposed that he did not know about the recovery of incriminating materials from the possession of the accused persons. 10. PW-2 in his deposition stated that on 15.01.2005, he was present in Dhekiajuli Police Station. On that day, when he was about to come out from the police station to have tea, he saw one bus being stopped near the Dhekiajuli Police Station. 10. PW-2 in his deposition stated that on 15.01.2005, he was present in Dhekiajuli Police Station. On that day, when he was about to come out from the police station to have tea, he saw one bus being stopped near the Dhekiajuli Police Station. He could notice the police personnel taking away two persons who were in Army dresses along with two trunks and two VIP suit cases. They were also carrying some other bundles having cloths. In the police station, the trunks were opened and several bundles of Bhang were found. Thereafter, the bundles of Bhang were weighed in a balance in his presence. The said balance was seized by police vide seizure list (Ext. 4). He signed as witness to the seizure. 11. P.W.-3 was declared hostile. 12. P.W.-4 in his deposition stated that he had a Pan Shop in front of Dhekiajuli Police Station. He stated that few months back, one day police searched some persons, getting them down from the bus by named Aush. He also deposed that the police opened the bag and showed him Bhang and put them in 03 (three) envelops after packing and also obtained his signature. He identified the accused persons as the possessor of the Bhang. 13. P.W.-5 is the Hendiman of the bus, who in his deposition stated that about a year back he was proceeding from Tezpur to Siliguri in the particular bus, which was stopped in front of Dhekiajuli Police Station. He also stated that the accused persons were amongst the passengers and they were asked by the police regarding their destination. They replied that they would go to Siliguri. On being asked about their belongings, they pointed out towards two still Army Trunks and two VIP bags. On being asked to open, they told the police that keys of the locks had been lost. Thereafter, the police broke opened the locks and found ganja inside in the trunk and the bags. Police seized the ganja and the documents of the vehicle. 14. P.W.-6 in his deposition stated about hiring his balance (weighing scale) by the police. 15. P.W.-7 is the Circle Inspector of Dhekiajuli Circle, who in his deposition stated that on 15.01.2005, when he was in the office, the Officer-in-Charge of Dhekiajuli Police Station informed him that in a Tourist Bus, two persons wearing Army dresses were bringing ganja. 14. P.W.-6 in his deposition stated about hiring his balance (weighing scale) by the police. 15. P.W.-7 is the Circle Inspector of Dhekiajuli Circle, who in his deposition stated that on 15.01.2005, when he was in the office, the Officer-in-Charge of Dhekiajuli Police Station informed him that in a Tourist Bus, two persons wearing Army dresses were bringing ganja. On receipt of the said information, he asked the Officer-in-Charge verbally to take required action in the matter. Later on, he issued the Ext. 5 authorization letter. In his cross examination, he stated that in the afternoon at about 4.55 p.m., he had gone to the police station and found the accused persons under arrest. He also found that articles were seized. 16. P.W.-8 in his deposition stated that on 15.01.2005, he was working in a Jwelery shop at Dhekiajuli and the police came and took a small weighing scale. He further stated that the scale was retained afterwards. The weighing scale and weights were seized by police vide Ext. 4. 17. P.W.-9 is the Investigating Officer, who generally stated about the investigation that was carried out. He stated that on 15.1.2005, while he was working as Sub Inspector of Dhekiajuli Police Station, on that day, Officer-in-Charge of that police station got the information about two persons coming in the bus in question carrying ganja. It was further informed that both the persons were coming in Army dresses. He further stated that on receipt of the information, the Officer-in-Charge made GD Entry No. 521 dated 15.01.2005 and taking him with him, he went out of the police station for apprehending those persons in the bus. He further narrated the incident with the statement that the bus was stopped in front of Dhekiajuli Police Station and the accused persons on being asked allegedly confessed their guilt of carrying ganja inside the two trunks and two VIP suit cases. He further deposed that the Officer-in-Charge of Dhekiajuli Police Station thereafter informed the matter to Superintendent of Police, Sonitpur; SDC Dhekiajuli and Circle Inspector, Dhekiajuli. The accused persons were apprehended with ganja. He further deposed that the Army dresses in which the accused persons have come in the bus had also been seized along with the bus tickets from the accused persons. 18. The accused persons were apprehended with ganja. He further deposed that the Army dresses in which the accused persons have come in the bus had also been seized along with the bus tickets from the accused persons. 18. From the aforesaid evidence, there is no manner of doubt that contraband ganja weighing 126 Kgs was found in possession of the accused persons and the same was carried in two trunks and two VIP suit cases. It is also in the evidence that the accused persons were in Army dresses. When the evidence of the prosecution is tested in reference to the statements of the accused persons made u/s. 313 Cr.P.C. there is no denial of the fact that ganja of commercial quantity was seized from their possession kept inside two trunks and two VIP suit cases. 19. Mr. M.K. Das, learned Amicus Curie, appearing for the accused/appellant submits in reference to three decisions of the Apex Court reported in (2009) 8 SCC 539 [Karnail Singh Vs. State of Haryana]; (2013) 2 SCC 502 [Kishan Chand Vs. State of Haryana] and (2007) 1 SCC 450 [Dilip & Anr Vs. State of M.P.] that irrespective of the testimonies of the P.Ws., when there is violation of the provisions of Section 42 and 50 of the NDPS Act, the accused/appellant is entitled to acquittal. 20. On the other hand, Mr. D. Das, learned Additional Public Prosecutor, Assam, submits that when there was substantial compliance of the procedure laid down towards search and seizure, the technical plea raised by the learned Amicus Curie is of no help to the case of the accused/appellant. He has also placed reliance on the decision of the Apex Court reported in (2010) 15 SCC 157 [State of Maharashtra Vs. Jayantilal Modi & Ors.]. 21. I have given my anxious consideration to the submissions made by the learned counsels for the parties. 22. As recorded earlier, there is no denial of the fact that contraband article i.e. Cannabis (ganja) was recovered from the possession of the accused/appellant along with another accused person, which was carried in two trunks and two VIP suit cases. It is also an admitted position that both the accused persons were traveling in the bus in Army dresses projecting themselves to be Army Personnel. It is also an admitted position that both the accused persons were traveling in the bus in Army dresses projecting themselves to be Army Personnel. When the circumstances appearing against them had been explained and they were put question u/s. 313 Cr.P.C. except stating that the allegations were false, they did not furnish any explanation as to how ganja came to their possession, which they had carried inside the two trunks and two VIP suit cases and that too posing themselves as Army Personnel. It is in such circumstances, the learned trial Court convicted the accused/appellant vide the impugned judgment of conviction. 23. According to the learned Amicus Curie, there being violation of the provisions of Sections 42 and 50 of the NDPS Act, irrespective of the aforesaid position, the accused/appellant is entitled to acquittal. It is submitted that there was no authorization for search and seizure and consequently the search made by the police inside the bus was fatal to the case of the prosecution. Referring to Section 50 of the NDPS Act, he further submits that the condition, in which search of persons is required to be conducted, was also not complied with. However, Mr. D. Das, learned Additional Public Prosecutor, referring to the evidence on record, submits that when the information was reduced into writing in the form of GD Entry and there was also authorization to conduct the search and seizure including the investigation, the accused/appellant cannot fall back on such technical pleas. 24. In Karnail Singh (Supra), the Apex Court dealing with the provisions of Section 42 of the NDPS Act, made a compliance of distinction of mandatory and discretionary requirement. It was also held that non compliance of the provisions by itself, may not vitiate the trial if it does not cause any prejudice to the accused. It was held that while total non compliance with requirements of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. In paragraphs 32, 33, 34 and 35, the Apex Court held thus:- "32. Under Section 42(2) as it stood prior to the amendment, such empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. In paragraphs 32, 33, 34 and 35, the Apex Court held thus:- "32. Under Section 42(2) as it stood prior to the amendment, such empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance with this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay, whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance with which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to the immediate official superior and not to any other condition of the section. 33. Abdul Rashid Ibrahim Mansuri v. State of Gujrat, (2000) 2 SCC 513 , had been decided on 1.2.2000 but thereafter Section 42 has been amended with effect from 2-10-2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused. 34. The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policymakers about it. Now for the last two decades police investigation has gone through a sea change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. Now for the last two decades police investigation has gone through a sea change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the register/records kept for those purposes in the police station or the respective offices of the authorized officials in the Act if the emergency of the situation so requires. As a result, if the statutory provision under Sections 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These, provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers. 35. In conclusion, what is to be noticed is that Abdul Rashid, did not require literal compliance with the requirements of Sections 42(1)and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:- (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 25. In Kishan Chand (Supra), the Apex Court while reiterating the aforesaid principles regarding total and definite non compliance vis-à-vis substantial compliance, observed thus:- "19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in Karnail Singh carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds. 21. When there is total and definite noncompliance with such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance." 26. In Dilip and another (Supra), the Apex Court having regard to the seizure of the contraband from the Scooter held that the provision of Section 50 of the NDPS Act was complied with. 27. However, it is the submission of Mr. M.K. Das, learned Amicus Curie that since the Army dresses and the tickers were seized from the accused/appellant, there was noncompliance of the provision of Section 50 of the NDPS Act. 28. In the instant case, we are concerned with search and seizure of contraband articles from the possession of the accused/appellant and not of the Army dresses and the tickets found in their possession. When there is no denial of the fact that the contraband article i.e. Cannabis (ganja) was found in their possession, it cannot be said to be a case of noncompliance of the provision of Section 50 of the NDPS Act. 29. In Jayantilal Modi (Supra), the Apex Court referring to the decision in Karneil Singh (Supra), held that when there was substantial compliance to the provision of Section 42 of the NDPS Act, same was enough. 29. In Jayantilal Modi (Supra), the Apex Court referring to the decision in Karneil Singh (Supra), held that when there was substantial compliance to the provision of Section 42 of the NDPS Act, same was enough. It was further held that non-compliance with the provision of Section 42 may not vitiate the trial, if no prejudice is caused. 30. As noted above, the defence never pleaded any prejudice to their defence, rather, while asked to explain the circumstances appearing against them they did not advance any explanation. 31. For all the aforesaid reasons, I am not inclined to interfere with the impugned judgment of conviction dated 12.05.2008 passed by the learned Special Judge, in Special (NDPS) Case No. 02/2005. Consequently, the appeal stands dismissed. 32. Registry shall transmit the case record to the learned Court below along with a copy of this judgment. While appreciating the assistance rendered by Mr. M.K. Das, learned Amicus Curie, it is hereby provided that he will be entitled to hearing fee of Rs. 5000/- (Rupees five thousand) on production of a copy of this judgment and order before the District Legal Services Authority. The Registry shall provide him with a copy of this judgment free of cost.