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2017 DIGILAW 863 (GAU)

BASUDEV GHOSH v. STATE OF ASSAM

2017-07-10

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : This is an appeal from jail, preferred by accused/appellant, Basudev Ghosh, who has been convicted by judgment and order dated 11.03.2016, passed by the learned Special Judge, Jorhat in Special Case No. 03/2013, arising out of GR Case No. 77/2013, under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”), to suffer Rigorous Imprisonment for 10 (ten) years, and a fine of Rs. 1,00,000/-, in default, to suffer Rigorous Imprisonment for a further period of 6 (six) months. 2. Heard Mrs. N Agarwal, learned Amicus Curiae, appearing for the accused/appellant. Also heard Mr. NK Kalita, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The accused-appellant was found by some members of the Asom Jatiyatabadi Yuba Parishad, Majuli Sub-Division committee, moving in a suspicious manner, with two bags near the ferry ghat, at Majuli. On their query as to the contents in the said two bags, the accused-appellant initially refused to allow them to see the contents of the bags. Then the PW1, the Secretary of Asom Jatiyatabadi Yuba Parishad, Majuli Sub-Division, called the SDPO, Majuli over phone, informing him that some suspected contraband had been found with the accused-appellant. The SDPO, along with the Circle Officer and the Officer-In-Charge, Garmur Police Station, arrived at the place of occurrence after such call. The informant and few others proceeded to the Police Station taking the accused-appellant in a motor cycle, and sending the bags to the Police Station in a public conveyance. The SDPO, the Circle Officer and the Officer-In-Charge of Garmur Police Station met the informant on their midway to the Police Station, and from there only they all, including the accused-appellant went to the Police Station. 4. On reaching Garmur Police Station, PW1 lodged the FIR. 5. On receipt of the F.I.R, case was registered, vide Garmur Police Station case No.16/13, under Section 20(C) of the Act, samples were collected from the suspected contraband as per procedure, report obtained from the Forensic Science Laboratory, (hereinafter referred to as “FSL”) and finally, on completion of investigation, charge-sheet submitted against the accused-appellant under Section 20 (C) of Act. 6. The trial court framed charge against the accused-appellant, under Section 20(b)(ii)(C) of the Act, 1985 to which the accused-appellant pleaded innocence. 7. 6. The trial court framed charge against the accused-appellant, under Section 20(b)(ii)(C) of the Act, 1985 to which the accused-appellant pleaded innocence. 7. In the statement recorded under Section 313 of the Cr.P.C, the accused-appellant denied seizure of the contraband from his possession and he disowned the bags containing the contraband to be his. He denied the accusations. 8. The trial court, after completion of the trial, convicted and sentenced the accused-appellant, as indicated above. During the course of trial, the prosecution examined as many as 11 (eleven) witnesses, who were subjected to cross-examination by the defense. The defense examined none. 9. I have heard the Mrs. N Agarwal, learned Amicus Curiae, appearing for the accused/appellant and Mr. NK Kalita, learned Additional Public Prosecutor, Assam. 10. The questions, before this Court are-(i) whether the suspected ganja (cannabis) seized in this case are contraband? (ii) whether the accused-appellant was found possessing two bags containing the contraband ganja (cannabis)? 11. I have meticulously scanned the evidence on record and the relevant evidence with reference to the detection and seizure of the contraband from the possession of the accused-appellant and the evidence leading to the recovery of the contraband. 12. For an answer to the first query, the evidence of PW10 is important, he being the Deputy Director of the Department of the Drugs and Narcotic Division in the FSL, Kahilipara, Guwahati. He examined the samples. In his evidence, he narrated as to how the sealed packets of the samples for examination were received by him. There is no dispute on this count. The evidence of the prosecution witnesses, PW11 and PW12, makes it crystal clear that the samples were collected as per procedure and were sent for chemical examination to the FSL. PW10 very categorically opined that the exhibits, i.e., the samples, he examined, showed positive test for ganja (cannabis). The relevant portion of his evidence vide his report, marked Ext.4 is reproduced below:- “Description of the articles 2 (sealed) envelopes marked as A1 and B1 having two closed polythene packets containing 24 grams of dry plant materials which was marked by me as DN-123/2013(a) and DN-123/2013(b). Result of examination The exhibits DN-123/2013(a) and DN-123/2013(b) gave positive test for cannabis.” Not to speak of dislodging such evidence of the PW10, even there is no attempt to dispute the findings of PW10. Result of examination The exhibits DN-123/2013(a) and DN-123/2013(b) gave positive test for cannabis.” Not to speak of dislodging such evidence of the PW10, even there is no attempt to dispute the findings of PW10. This witness was not even cross-examined in respect of the findings recorded by him in his report, marked Ext.4. Therefore, it is established that the contraband allegedly seized and sent for examination to FSL was nothing but ganja (cannabis). 13. The learned Amicus Curiae, during the course of hearing, submitted the following:- (i) that, the statutory provisions, regarding search and seizure were not complied with in the instant case. (ii) that, the accused-appellant was not in possession of the seized contraband. (iii) that the two bags containing the seized contraband was taken by another person, in a public conveyance, along with other persons, and the accused-appellant was taken to the police station in a motor cycle by the informant, and therefore, it cannot be safely said that those were the bags allegedly found in the possession of the accused-appellant. (iv) that, as per the admitted evidence, the seized bags were kept inclined against a wall of a nearby shop. As such, it cannot be said to have been recovered from the possession of the accused-appellant and (v) that, the provisions of Section 50 of the Act has been violated in the instant case as the Officer-in-Charge of Garmur Police Station could not tell as to who was the In-charge of the seized contraband, while it was in the safe custody, in the malkhana of the police station. 14. The evidence of PW1, Sri Sanjib Borah, makes it clear that PW1 and three other members of the Asom Jatiyatabadi Yuba Parishad, Majuli Sub-Division committee, namely, Sri Aditya Dutta (PW5), Sri Pallab Bora (PW3) and Sri Bikash Saikia went to the place of occurrence in connection with organizing a Bihu function there. While they saw the accused-appellant in a shop, near the ferry ghat, with two bags, they suspected something foul, from the movement and the body language of the accused-appellant. They suspected that the two bags contained contraband. The accused-appellant admitted the bags to be his, and on opening of the bags, it was found that they contained ganja (cannabis). He immediately informed the SDPO, Majuli over phone. 15. They suspected that the two bags contained contraband. The accused-appellant admitted the bags to be his, and on opening of the bags, it was found that they contained ganja (cannabis). He immediately informed the SDPO, Majuli over phone. 15. Further evidence of PW 1, the informant is that the SDPO Majuli, the Circle Officer and the In-charge of Garmur Police Station arrived at the place of occurrence and apprehended the accused appellant with the two bags which contained ganja (cannabis). But, in his examination in chief, in the same breadth, this PW 1 is found to have stated that before arrival of the police they took the accused appellant with the two bags towards the Garmur Police Station and they came across the police officers midway. Thereafter, they went to the police station along with the police officials, police seized the two bags containing ganja (cannabis) in the presence of PW 1 and, as well as, in the presence of other witnesses vide Ext 1. In his cross examination, the PW 1 stated that the accused appellant was a little away from the bags and that the bags were near a shop. His further evidence in cross examination is that there were four members including PW1 at the relevant time of occurrence and that the accused appellant was taken in a motor cycle towards the police station and in midway they met the Circle Officer and the Officer-In-Charge of Garmur Police Station. The two bags were taken to the Garmur police station in a bus accompanied by Sri Aditya Dutta. They handed over the accused appellant to the police midway. PW 1 could not say as to when Sri Aditya Dutta handed over the two bags containing ganja cannabis to the police. PW 1 being the informant proved the FIR vide Ext 1. 16. Sri Aditya Dutta, named by PW 1 in his evidence, is examined as PW 5 in this case. PW 5 had also stated categorically in his examination-in-chief that at the ferry ghat they saw two jute bags along with the accused appellant and the accused appellant admitted the bags to be his. They checked the bags and found there, packets containing suspected ganja cannabis. They apprehended the accused appellant and handed him over to Gormur police. PW 5 had also stated categorically in his examination-in-chief that at the ferry ghat they saw two jute bags along with the accused appellant and the accused appellant admitted the bags to be his. They checked the bags and found there, packets containing suspected ganja cannabis. They apprehended the accused appellant and handed him over to Gormur police. In his cross examination, this PW 5 stated that there were more than 30-50 people gathered at the ferry ghat and at that time, he had not seen the accused near the two jute bags. PW 5, in his cross examination, corroborates the evidence of PW 1 (informant) that he carried the two bags in a bus to Garmur police station which is about 12 kms away, that is, the ferry ghat/the place the occurrence. 17. PW 3, Pallab Bora is named by both PW 1 and PW 5 to be with them at the time of occurrence. In his evidence, PW 3 is found to have stated that at the ferry ghat, they saw two plastic bags which they suspected to have contained drugs/ganja. While they wanted to inspect the bags, the accused appellant prevented them. Then, PW 1 informed the SDPO Majuli over phone. He further deposed that the SDPO along with police from Garmur Police station came to the place of occurrence and requested them to take the accused appellant along with the bags to the police station. Further evidence of this witness is that the police seized the suspected ganja cannabis from the accused appellant in his presence vide Ext 1. In his cross examination, PW 3 is found to have stated that there were other passengers in the public transport vehicle in which the two bags were carried to the police station , expressing at the same time, his ignorance as to who loaded the said bags in the bus. According to him, there were 50-60 persons at the ferry ghat at the time of occurrence. 18. It has come out very clearly from the evidence of PW 1, PW 2 and PW 3 that the two bags allegedly containing ganja (cannabis) were not in physical possession of the accused appellant at the relevant time, rather they were near a shop, a little distance away from the accused appellant and that there were a number of people at the ferry ghat at that time. It has further come out from the evidence of PW 1 and PW 5 that the police officials did not come to the place of occurrence although PW 3 stated in his evidence that the police officials came to the place of occurrence and only on their request they took the accused appellant and the bags to the police station. Such evidence of PW 3 is totally belied by PW 1 and PW 5, as according to them, they left for the police station along with the accused appellant on a motor cycle, only to come across the police officers midway to the police station. The bags were sent separately in a bus to the police station. 19. PW 11, SDPO Majuli is found to have stated that he gave written authority, vide Ext 6 to the officer-in-charge of Garmur police station at the place of occurrence itself, for conducting the search and seizure upon the accused appellant. Before that, of course, as per his evidence, he gave authority over telephone. But PW 12, Inspector of Police who was authorised by PW 11 SDPO for the search and seizure unequivocally admitted in his evidence that on the date of occurrence they did not visit the place of occurrence. On the other hand, the evidence of PW 12, in his examination-in-chief itself is that he received the FIR at the police station, arrested the accused appellant and seized the suspected contraband at the police station from the possession of the accused appellant. Further, he is found to have stated that he informed the SDPO Majuli only after receipt of the FIR. 20. FIR was admittedly received at the police station where the informant/PW 1 was present. He took the accused appellant to the police station. Therefore, the evidence of PW 1, the SDPO to the effect that the police visited the place of occurrence and at the place of occurrence itself he had given the written authority vide Ext 6 appears to be totally incorrect. This finding of this Court receives further support from the evidence of PW12 who deposed that it was only after receipt of the FIR lodged by PW1 at the police station, that he had informed the PW11 SDPO and at that time PW1 and the accused appellant were at the police station itself. This finding of this Court receives further support from the evidence of PW12 who deposed that it was only after receipt of the FIR lodged by PW1 at the police station, that he had informed the PW11 SDPO and at that time PW1 and the accused appellant were at the police station itself. Therefore, giving authority vide Ext.6, at the place of occurrence, does not arise and is found to be incorrect. 21. The admitted evidence is that the suspected ganja cannabis was produced in the police station not by the accused appellant, rather by PW 5, as PW 5 had carried the same to the police station. The accused appellant was evidently at the police station at the time the FIR was lodged and the suspected contraband seized. Ext 1, the seizure list, on perusal, makes it vividly clear that the seizure was made in the compound of Garmur police station. Ext 1 further reveals that seizure of the suspected contraband was made from the possession of the accused appellant, Basudev Ghosh. But, it is an admitted position from the evidence discussed above, that the accused appellant was taken to the police station not with the bags. The bags were taken to the police station separately. Then, how PW 12 could seize the bags from the accused appellant ? It is, therefore, not based on facts. What is interesting to note is that PW 5, Aditya Dutta, who admittedly carried the bags to the police station, is also a witness to the seizure of the bags from the possession of the accused appellant vide his signature Ext 1 (3). That apart, PW 3 in his evidence stated that the two bags were plastic bags and vide Ext 1 (2), he is a witness to the said bags. But, PW 5 stated that he saw two jute bags in the possession of the accused appellant, at the time of occurrence. If it is so, PW 5 could not have been a witness to the seizure of the two plastic bags vide Ext 1. If the evidence of PW 5 is to be believed then jute bags ought to have been seized by the police vide Ext 1. If it is so, PW 5 could not have been a witness to the seizure of the two plastic bags vide Ext 1. If the evidence of PW 5 is to be believed then jute bags ought to have been seized by the police vide Ext 1. The contradictions elicited during the discussion above are so glaring inconsistencies in the evidence of the prosecution that it has made the whole story of the prosecution regarding the seizure of the two bags containing the suspected contrabands wholly unrealistic and improbable, that it is not at all worth reliance. Therefore, the submission on this count, of the Learned Amicus Curiae, is found to have force. 22. PW11, who was the SDPO of Majuli at the relevant time, stated that on receipt of the telephonic information from the PW12, he authorised him over telephone for conducting search and seizure of the contraband from the possession of the accused-appellant and to take appropriate legal action. Thereafter, he gave written order to the PW12, O/c of Garmur Police Station, to conduct search and seizure of the accused-appellant vide Ext.6. 23. Let us now look into the legality of search and seizure. The evidence of PW1/informant together with the evidence of PW3 and PW5 makes it clearly appear that the police seized the ganja (cannabis) contained in the two bags at the police station and on being produced by PW 5 .Although in the seizure list marked Ext 1, the said bags are shown to have been seized from the possession of the accused appellant. It has already come out in the forgoing discussion that the suspected contraband ganja (cannabis) was seized by PW 1, PW 3 and PW 5 and then they handed over the same to the police, at the police station, which is about 12 kms away from the police station. Police seized the same on being produced. The question is who had produced the same before the police. Admitted evidence is that PW 5 carried the same to the police station. The accused appellant was not with him or with the bags at that time. Admittedly, the accused appellant was separately taken to the police station. Police even did not come to the place of occurrence on the date of occurrence is a position admitted by PW 12, the investigating officer. Section 43 of the Act provides as follows:- “43. The accused appellant was not with him or with the bags at that time. Admittedly, the accused appellant was separately taken to the police station. Police even did not come to the place of occurrence on the date of occurrence is a position admitted by PW 12, the investigating officer. Section 43 of the Act provides as follows:- “43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in section 42 may— (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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 VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.—For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” 24. It appears from the above provision in section 43 of the Act that officers, specifically mentioned in section 42 of the Act are also the officers, who can search and seize contraband in the public place. So, it is clear from these provisions that in respect of search and seizure in a public place there cannot be any deviation in respect of the officers, who are empowered to make search and seizure under section 43 of the Act. In the instant case, the evidence of PW 1, PW 3 and PW 5 as discussed above, makes it clearly appear that they seized the suspected ganja (cannabis) at the place of occurrence and that it was not seized by the police. In the instant case, the evidence of PW 1, PW 3 and PW 5 as discussed above, makes it clearly appear that they seized the suspected ganja (cannabis) at the place of occurrence and that it was not seized by the police. As stated above, the aforesaid bags were seized in the police station only on production by PW 5. Now the question is whether PW 1, PW 3 and PW 5 are the officers mentioned in section 42 of the Act. Evidently, none of them are the officers mentioned in section 42 of the Act. They are all, members of an organisation called Asom Jatiyabadi Yuva Parishad. Therefore, the search and seizure was not made by an authorised officer as provided in section 42 of the Act. That being so, there is blatant violation of the mandatory provisions of section 43 of the Act. Hence, the entire search and seizure allegedly carried out is illegal. 25. The learned Amicus Curiae also raised the issue of violation of the provisions of section 50 of the Act. It has been submitted that the accused appellant was neither taken to the nearest Magistrate nor was he asked whether he required to be taken to the nearest Magistrate. The word ‘shall’ appearing in section 50 (1) of the Act makes it mandatory to produce the person who is to be searched before the nearest Magistrate, if he so requires. But in the instant case there is no evidence on record that the accused appellant was taken to a Magistrate or he was asked whether he was required to be taken to a Magistrate. There is even no remote whisper, in the evidence led by the prosecution, of the compliance of the provision of this section. That being so, the mandatory provisions of section 50 (1) of the Act has not been complied with in this case, thus making the follow up action in respect of search and seizure illegal. 26. The seizure list, by which the alleged contraband was seized by PW12, is marked as Ext. 1. It has also been shown in the Ext.1 that the contraband was seized from the possession of Basudev Ghosh, i.e., the accused-appellant, on being produced at the Police Station. On the other hand, the contents of the seizure list shows that the contraband was produced in the police station. 1. It has also been shown in the Ext.1 that the contraband was seized from the possession of Basudev Ghosh, i.e., the accused-appellant, on being produced at the Police Station. On the other hand, the contents of the seizure list shows that the contraband was produced in the police station. So, to the effect that the contraband was sent to the Police Station not with the accused-appellant but separately in a public conveyance belied the evidence of PW2 that he seized the contraband from the possession of the accused-appellant and, therefore, he could not have written that the seizure was made from the possession of “Basudev Ghosh” (the accused-appellant) on being produced. If it is so, the seizure was not made from the possession of the accused-appellant, and admittedly, seizure was made in the compound of the police station, whereas the place of occurrence is the ferry ghat, as stated aforesaid. On the other hand, it is an admitted fact that the contraband was carried to the police station in a public conveyance by someone and not by the accused-appellant. Therefore, it cannot be said that the seizure was made, from the possession of the accused-appellant, as provided for in Section 43 of the Act. 27. The principal issue in respect of an offence under the Act is the search and seizure of the contraband. It appears from the above discussions that on this issue, (formulated as question No. 2 before) the evidence is unreliable and as stated aforesaid, the violation of the mandatory provisions of search and seizure, prescribed in Section 43 of the Act is so manifest in the evidence, that prosecution case has no ground to stand. 28. In view of the above, the prosecution fails to prove its case. Therefore, the judgment and order dated 11.3.2016 passed by learned Special Judge, Jorhat in Special Case No.03/2013 is set aside. The accused-appellant is acquitted. 29. The appeal is allowed accordingly. 30. The accused appellant be released forthwith from jail. 31. Send down the LCR along with a copy of the judgment. 32. Also send a copy of the judgment to the Superintendent of Jorhat Jail, for furnishing a copy thereof, to the accused appellant. 33. This Court appreciates the legal assistance rendered by learned Amicus Curiae and directs payment of remuneration of Rs. 7,000/- to the learned Amicus Curiae.