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Gauhati High Court · body

2017 DIGILAW 860 (GAU)

Md. Mofuz Ahmed v. State of Assam

2017-07-10

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : This is an appeal from jail against the judgment and order dated 29.04.2015, passed in N.D.P.S. Case No.8 of 2014 by the learned Special Judge, Cachar, Silchar, convicting the accused/appellant under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”) and sentencing him to RI for 10 (ten) years and fine of Rs.20,000/-, in default, RI for another 2(two) years. 2. The facts of the case is that on 14.5.2014, Sub-Inspector of Police-Faizur Rahman, Sonai Police Station , Cachar, Silchar, received information from reliable sources about the presence of a drug smuggler, namely – Md. Mufuz Ahmed, at Sadhin Bazar locality under Sonai Police Station and, he immediately communicated this information to the C.I.(E) Sonai. Then, on being authorized by the said C.I.(E) Sonai, he along with S.I. of Police – R.P. Rongmai, UBC Jakir Hussain Borbhuiya and one section of police battalion, rushed to the spot and conducted search on the body of the aforesaid Mufuz Ahmed. During such search, 18 nos. of small containers containing brownish white coloured powder, suspected to be heroin, were found from his possession, which was seized as per the seizure list in presence of the witnesses. Each of the seized containers contained 0.52 grams suspected to be heroin powder. Thereafter, he lodged FIR against the aforesaid Mufuz Ahmed with the Sonai Police Station, which registered a case being No.73/14 under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. During the course of investigation, sample of the seized containers were sent to examination by the Forensic Science Laboratory, as per laid down procedure and the report of forensic science examination showed positive test for heroin, the percentage of which was around 90%. 4. On completion of the investigation, after observing necessary formalities, charge against the accused was framed by the learned Special Judge, under Section 21(c) of the NDPS Act, to which the accused appellant pleaded innocence. 5. After completion of recording of evidence of 4(four) witnesses, including the forensic expert and the investigating police officer, statement of the accused appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied the accusation levelled against him. The accused appellant did not adduce any defence evidence. 6. I have heard Ms. PB Bordoloi, learned Amicus Curiae and Mr. He denied the accusation levelled against him. The accused appellant did not adduce any defence evidence. 6. I have heard Ms. PB Bordoloi, learned Amicus Curiae and Mr. NJ Dutta, learned Additional Public Prosecutor, Assam, for the respondent. 7. P.W.1, Md. Muazzan Hussain Barbhuiya, is found to have stated in his evidence that, at about 2.30 P.M., the accused was found in the Sadhin Bazar and, on suspicion, he was detained. He was searched. Before search, he was asked whether he wanted to be searched before a Magistrate, to which the accused appellant answered in the negative. Thereafter, while he was searched, 18 nos. of plastic containers, containing suspected heroin, were recovered from his left pocket. They were seized. The seizure list was prepared at the place of occurrence. Samples in 9(nine) packets from the seized suspected drugs were taken. The seized suspected drugs were weighed by weighing instruments. They were found to have contained 300 grams of suspected contraband. P.W. 1 has exhibited Ext.1, as the seizure list. He has proved the seizure list. After seizure was carried out, the accused was taken to the police station along with the seized articles. During his cross-examination, this witness is found to have denied that he did not state before the investigating officer that the seized suspected contraband were found in the left pocket of the accused appellant. 8. During the course of argument, the learned Amicus Curiae has submitted that there is violation of the provisions of the NDPS Act, regarding the search and seizure. The further argument is that the search was made on the accused appellant before arrival of the police. 9. It appears from the complaint as well as from the facts of the case that the contraband was seized in a public place i.e. Sadhin Bazar and, as such, the power of seizure and arrest, in the instant case, is governed by the provisions of Section 43 of the NDPS Act. 10. It appears from the evidence of P.W.3, Faizur Rahman, the informant, that he searched and then seized the suspected contraband from the possession of the accused appellant in presence of witnesses at, Sadhin Bazar. On the other hand, it appears from the evidence of P.W. 1, that before searching the accused appellant, he asked him, whether he wanted to be searched before a Magistrate, although the accused appellant declined. On the other hand, it appears from the evidence of P.W. 1, that before searching the accused appellant, he asked him, whether he wanted to be searched before a Magistrate, although the accused appellant declined. Similar is the evidence of P.W. 2, Md. Saikul Alom Borbhuiya, who also stated specifically in his examination-in-chief and asserted in his cross-examination that the police asked the accused appellant as to whether he wanted his body to be searched in presence of a magistrate to which he answered in the negative. P.W. 3 is the informant and he is also found to have stated that some people had already apprehended the accused appellant and, thereafter, when the accused appellant said that he would not require the presence of a Magistrate before his body is searched, this witness searched the body of the accused appellant only to find the suspected seized contraband. Ext. 1 is the seizure list. The seizure of the suspected contraband, vide Ext.1, is proved by the seizure witnesses, P.W. 1 and P.W. 2. 11. It appears from the evidence on record that the seizure of the suspected contraband, from the possession of the accused appellant, has been proved by the P.Ws. 1 and 2. This is also a fact not disputed by defence. The only contradiction, the defence wanted to bring, during cross-examination of P.W. 1 to P.W. 3 is that, the accused appellant was never asked whether he would like to be searched in presence of a Magistrate. To substantiate such a contradiction, the learned Amicus Curiae pointed to the evidence of P.W. 2, to the effect that the accused appellant was apprehended by some persons before arrival of the police. The defence also, in the cross-examination of P.W. 2, referred to the statement, made under Section 161 Cr.P.C., by P.W. 2 that some unknown person restrained the accused appellant and found 18 nos. of containers in his possession. But, the evidence of P.W.2, in his examination-in-chief, makes it clearly appear that before searching the body of the accused appellant, he was asked by the police officer, who conducted search on him, as to whether he would require the presence of a Magistrate for searching his body. Only then, his body was searched, and 18 nos. of containers suspecting them to contain the seized contraband, was found in his possession. Only then, his body was searched, and 18 nos. of containers suspecting them to contain the seized contraband, was found in his possession. This evidence of P.W. 2, in his examination-in-chief, makes it appear that before seizure of the suspected contraband from the possession of the accused appellant, he was asked about the requirement of presence of a Magistrate. The evidence on record also makes it clear that the accused appellant was apprehended by some other persons first, and then police arrived there. So, it appears that only after arrival of the police, the appellant was asked regarding requirement of presence of a Magistrate before his body was searched, to which he answered in the negative, making it more than clear that he was not searched before arrival of the police at the place of search. Therefore, the evidence of P.W. 2, said to be contradictory by the defence, appears to have no foundation. That apart, the admission of P.W.2 that he stated before the police that they suspected an unknown person and restrained him and found 18 nos. of containers in his possession itself is not sufficient to say that the prosecution evidence on the recovery of the suspected contraband has been demolished, because, in his cross-examination, he is found to have stated that suspected contraband were seized in 18 containers by the police after search of his body. Therefore, it appears that as against evidence of P.W.2, in his examination-in-chief, his evidence as aforesaid, in the cross-examination, appears to be vague, as to whether the containers were found in the possession of the accused appellant before search or after search. So, the contradiction, on this count, as raised by the defence, fails to make the prosecution case, as regards seizure from the possession of the accused appellant, un-reliable. 12. Let us first see whether the suspected contraband seized from the possession of the accused appellant is heroin or not ? In this regard, the evidence of P.W. 4, Shri Dhrubajyoti Hazarika, who is the Deputy Director of Drugs and Narcotic Division, is important. It is found in his evidence that he received 9(nine) sealed envelopes containing the facsimile of the seal SUPDT of Police Cachar, Silchar. In this regard, the evidence of P.W. 4, Shri Dhrubajyoti Hazarika, who is the Deputy Director of Drugs and Narcotic Division, is important. It is found in his evidence that he received 9(nine) sealed envelopes containing the facsimile of the seal SUPDT of Police Cachar, Silchar. The description of the articles, as is found from his evidence, is as follows : “Description of articles : One sealed envelope marked as Ex.A having a closed polythene packet containing 9 nos. of small plastic containers with 50 milligram brown coloured powder each, which were marked by me as DN-161/2014(a) to DN-161/2014(i) respectively. On careful examination following United Nation Drug Testing Protocol, result of my examination so found as follows :” The findings, recorded by P.W.4, in respect of the sample examined by him, is quoted below : “The Ext. DN-161/2014(a) to DN-161/2014(g) gave positive test for heroin and percentage of heroin were found to be 88.28, 83.80, 83.71, 91.39, 87.15, 88.44 an 89.33 respectively. The Ext.DN-161/2014(h) and DN-161/2014(i) gave negative test for Narcotic Drugs and Psychotropic Substance.” He has exhibited his report as Ext.11. It is found that this witness was not cross-examined by the defence, and his evidence, therefore, remained intact. 13. Now the charge against the accused appellant is under Section 21(c) of the NDPS Act. To attract the provision of Section 21(c) of the NDPS Act, the contraband must involve commercial quantity. But, the quantity of the contraband seized from the possession of the accused appellant was 9.36 grams, which is less than the commercial quantity i.e. 250 grams, as per Item 56 of the table in the notification specifying quantity and commercial quantity. The contraband seized, on calculation, is found to be 9.36 grams, which is above 5 grams and, as such, lesser than the commercial quantity and greater than small quantity, and therefore, the offence in the instant case is not covered by Section 21(c) of the Act and, rather, it is covered by the provisions of Section 21(b) of the Act. The learned Trial Court rightly held the accused appellant guilty under Section 21(b) of the Act. 14. In view of the discussions, made above, there is no hesitation to hold that the contraband found in the possession of the accused appellant, and the finding of his guilt recorded by the learned Special Judge, is based on the evidence on record. The learned Trial Court rightly held the accused appellant guilty under Section 21(b) of the Act. 14. In view of the discussions, made above, there is no hesitation to hold that the contraband found in the possession of the accused appellant, and the finding of his guilt recorded by the learned Special Judge, is based on the evidence on record. Therefore, the order of conviction needs no interference. On conviction, the learned Trial Court sentenced the accused appellant to suffer rigorous imprisonment for 10(ten) years, and a fine of Rs.20,000/-, and in default, rigorous imprisonment for another 2(two) years. It appears that the substantive sentence of rigorous imprisonment for 10(ten) years is the maximum prescribed and in Section 21(b) of the Act. Considering the fact that the accused appellant is of 28 years of age having his wife and children, this Court is of the view that substantive sentence of rigorous imprisonment of 7(seven) years would be appropriate. Accordingly, the substantive sentence of rigorous imprisonment for 10(ten) years is reduced to 7(seven) years. No interference in respect of the sentence of fine with the default clause. 15. The appeal is, accordingly, partly allowed. 16. Send down the LCR with a copy of this judgment. 17. Also send a copy of the judgment to the Superintendent of Jail, Cachar, Silchar for furnishing to the accused appellant. 18. This Court records its appreciation for the assistance rendered by learned Amicus Curiae, Ms. Purnima Baruah Bordoloi. Learned Amicus Curiae be paid an amount of Rs. 7,000/-, as remuneration.