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2018 DIGILAW 1727 (GAU)

Suman Das S/o Late Haradhan Das v. Union of India

2018-12-11

RUMI KUMARI PHUKAN

body2018
JUDGEMENT & ORDER : 1. Heard Mr. U.K. Barman, learned counsel for the appellant/accused. Also heard Mr. S.C. Keyal, learned Asstt. Solicitor General of India, appearing for and on behalf of the Union of India/respondent. 2. The present appeal has been preferred against the judgment and order dated 29.09.2014, passed by the learned Addl. Sessions Judge (FTC), No.3, Kamrup (M) at Guwahati in N.D.P.S. Case No.73/2013, convicting the accused/appellant Suman Das, under Section 21(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short ‘the NDPS Act’) and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default rigorous imprisonment for another two years. 3. The prosecution case in nutshell is that one Inspector of Anti Smuggling Unit of the Guwahati Custom Division, namely Rideep Hazarika received a specific information to the effect that huge quantity of phensedyl cough syrup would be transported by a 12 wheelers truck bearing Regn. No.NL- 01-K-2827 and proceed to Agartala, in early hours of 21.06.2013, the said information was reduced to writing by the said officer and immediately informed to the superior officer Mr. B.P. Jaishi, Superintendent of Customs, Guwahati Custom Division. Mr. Jaishi instructed him to form a team to proceed towards Khanapara and accordingly a team was formed comprising said Rideep Hazarika, Mr. Ratul Das, Mr. Swapan Kr. Das, Mr. Nabarun Bhattacharjee and Mr. M.I. Singh (all inspectors), which was led by the Superintendent himself and the team proceeded to the Ninth Mile area at Khanapara, Guwahati and laid naka near the CRPF camp. Then at about 5 A.M., the team of officers saw the truck bearing Regn. No.NL-01-K-2827, from Khanapara side towards Jorabat and signaled to stop the vehicle and two persons including the driver were found inside the vehicle i.e. Suman Das (Driver) and Nandalal Deb (Helper). On being intercepted, the driver of the truck informed that the vehicle was loaded with refine oil and produced certain documents in support of the said refine oil in the truck. 4. However, the team of those officers decided to check the vehicle on the basis of the said earlier information and as there was no proper place for keeping such huge amount of goods from the vehicle, the vehicle was brought to the Customs Quarter Complex located at Patthar Quarry, Narengi. 4. However, the team of those officers decided to check the vehicle on the basis of the said earlier information and as there was no proper place for keeping such huge amount of goods from the vehicle, the vehicle was brought to the Customs Quarter Complex located at Patthar Quarry, Narengi. After being checked with the help of the driver and his helper and in presence of two independent witnesses, 8400 bottles of phensedyl cough syrup kept in several cartons were recovered, kept beneath the refine oil packets. Apart from 1746 refine oil cartons, there were another 168 cartons of phensedyl cough syrup. The persons who carried those articles i.e. driver and the helper could not accounted for the same and accordingly the articles were seized and the matter was formally informed to the higher authority. Samples of the seized articles was sent to the Govt. Laboratory for chemical examination and the report gave positive test of Codeine Phosphate and accordingly offence report was filed by the Department against the driver and handyman of the said vehicle. The learned Trial Court took cognizance of the offence under Section 21(c)/29 of the NDPS Act, read with Section 8(c) of the NDPS Act and formal charge was framed under the said Sections of law, to which the accused pleaded not guilty. 5. In support of the case, the prosecution examined nine witnesses and the defence examined none. The plea of the defence is of total denial. 6. At the conclusion of the trial, the learned Trial Court held the accused Suman Das guilty under Section 21(c) of the NDPS Act and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default rigorous imprisonment for another two years. 7. Assailing the aforesaid judgment, the present appeal has been preferred. 8. The prime contention that has been raised before this Court by Mr. U.K. Barman, learned counsel for the appellant is basically of two folds i.e. non-compliance of Sections 42/50 & 52/57 of the NDPS Act and also contend that seizure is not proved beyond all reasonable doubt by the independent witnesses and also the prosecution cannot rely upon the statement of the victim that was recorded under Section 67 of the NDPS Act. So due to such infirmities, the conviction cannot sustain, it contends. 9. So due to such infirmities, the conviction cannot sustain, it contends. 9. Further it has also been submitted that as the owner of the vehicle or the person who loaded the said article was not made accused in the present case and also the fact that other accused person being similarly situated, has been acquitted by the Court, the conviction of present accused, is bad in law in as much as the petitioner has already assailed that he is not aware about the loading of such phensedyl cough syrup in his vehicle. 10. Mr. S.C. Keyal, learned Asstt. Solicitor General of India, appearing for and on behalf of the Union of India/respondent has however contended that the evidence so far adduced by the prosecution is clear and convincing so far as to recording of information under Section 42 of the NDPS Act and also the preparation of search and seizure list, which is not at all violative of Section 52 of the NDPS Act. On the next, it is also contended that as soon as the recovery of article (drugs) from the vehicle of the accused persons is made, along with other admitted articles in the said vehicle, there can’t be any denial that such article was not recovered from the conscious possession of the accused. The accused/appellant also failed to produce any rebuttal evidence to the positive evidence that have been produced by the prosecution, whereas the prosecution has been able to prove the charge beyond all reasonable doubt. 11. The learned counsel for the appellant as well as the learned counsel for the respondent has led this Court throughout the evidence laid before the Trial Court, in support of their respective submissions. 12. I have gone through the evidence on record accordingly. 13. So far the evidence on record is concerned, we find that except two independent witnesses and the official witness from the Forensic Science Laboratory (FSL), all other witnesses were officers of the Custom Department. 14. The Inspector of Customs Rideep Hazarika (PW.9) has stated that on 20.06.2013, at about 9:30 P.M., he received information that a huge quantity of phensedyl cough linctus will be loaded in a truck bearing Regn. No.NL-01-K-2827 and the said consignment will be concealed by loading of refine oil. Immediately he reduced the information into writing and informed the matter to the Superintendent of Customs Division, Mr. No.NL-01-K-2827 and the said consignment will be concealed by loading of refine oil. Immediately he reduced the information into writing and informed the matter to the Superintendent of Customs Division, Mr. B.P. Jaishi (PW.4), who instructed him to form a team for taking necessary action. Accordingly, the PW.9 comprises a team along with PW.1 M.I. Singh, PW.2 B. Basumatary, PW.3 N. Bhattacharjee, PW.4 B.D. Jaishi (Superintendent) and PW.6 Ratul Das gathered in their office at about 2:30 A.M. and moved for the area for interception on NH-37, near the CRPF camp. They laid a naka on the National Highway at about 3:00 A.M. and at about 5:00 A.M., they could intercept the targeted vehicle. 15. Supporting the evidence of PW.9, all above witnesses have given similar evidence (including PW.4), for the sake of gravity, their evidence is discussed together that they found one driver namely, Suman Das and one Nandalal Deb as helper inside the vehicle and after introducing themselves, they instructed the driver to stop the vehicle. Accordingly the vehicle was stopped on the National Highway and the driver reported that the truck was loaded with Gokul brand refine oil and he produced certain documents in support of the said loaded goods. But however as the goods loaded in the truck and the number of the truck matched with their information, they decided to check the truck by way of unloading the goods and it was not possible to unload such a huge quantities in truck, on the highway, they decided that the truck be taken to the Custom’s Quarter Complex, located at Patthar Quarry at Narengi. Accordingly, driver Suman Das was instructed to bring the vehicle to the said place. Thereafter at the said complex, tarpaulin of the truck was removed with the help of driver and helper and the goods were unloaded in presence of two independent witnesses (PW.7 & PW.8). After unloading the Gokul Brand refine oil, 24 packets were found loaded in front side of carriage part of the truck. On further checking of those packets, it was found that it contain 168 cartons containing 8400 bottles of phensedyl cough syrup. The driver and handyman of the truck however could not produce any document pertaining to those phensedyl cough syrup bottles. On further checking of those packets, it was found that it contain 168 cartons containing 8400 bottles of phensedyl cough syrup. The driver and handyman of the truck however could not produce any document pertaining to those phensedyl cough syrup bottles. Accordingly all the articles along with the vehicle was seized in presence of those witnesses and after taking sample in duplicate from each batch, the same was sent for chemical analysis by the Govt. Laboratory. Vide Ext.15, the Panchnama was prepared. 16. PW.4, B.P. Jaishi who is the Superintendent of Customs, had admitted about the information so received from the PW.9, which he reduced to writing vide Ext.1. He also admitted that he instructed the PW.9 to form a team for the checking. The rest part of search and seizure and recovery are similar to that of other witnesses. PW.4 being the superior officer, was also part of the said team. They have supported the evidence of each other on each material aspect. 17. After interrogating the driver and the handyman of the vehicle, the PW.4 recorded the statement of accused Suman Das, Vide Ext.9 in the questionary form and Ext.12 is the voluntary statement given by Suman Das in his own language, while the voluntary statement of helper Nandalal Deb was recorded by Rideep Hazarika (PW.9), vide Ext.14. 18. All the witnesses stated about the preparation of inventory of goods seized through Ext.2. According to them, all the process of search and seizure of the vehicle was done in presence of independent witnesses PW.7 and PW.8. On the entire facts, Ext.5 (the FIR) was filed on 21.06.2013. 19. The record reveals that no any effective cross-examination was done to the witnesses to demolish the evidence and suggestion was given that as the vehicle was under their control, they have implanted the seized articles inside the truck, which is denied. Further suggestion was given that mandatory provisions of seizure was not made in accordance with law which is also denied. 20. One of the witnesses i.e. PW.1 has however stated that the driver and handyman knew only about the soyabin oil. Except PW.1, all other witnesses have however denied the fact that the accused persons have only knowledge about the refine oil and not aware about the phensedyl cough syrup. 20. One of the witnesses i.e. PW.1 has however stated that the driver and handyman knew only about the soyabin oil. Except PW.1, all other witnesses have however denied the fact that the accused persons have only knowledge about the refine oil and not aware about the phensedyl cough syrup. On the query made in cross-examination, it has been replied that the statement of the owner of the truck was not recorded nor they have collected any information as to who loaded the consignment at the weighbridge in the said truck. 21. The PW.4 and PW.9 who recorded the statement of the accused persons have denied the suggestion that the statement given before them is not voluntary. 22. All the witnesses, who are the officers of the Customs Department have corroborated each other about the information they have received about carrying of contraband in the vehicle driven by the accused/appellant and the search and seizure was made conjointly by all above witnesses, leaving no any scope to raise doubt about the authenticity of their evidence. On the specific tip of information, the officers gathered in their office at midnight and proceeded for naka checking on the National Highway and accordingly the targeted vehicle was intercepted, that was driven by the accused/appellant and from the vehicle, the aforesaid drugs were recovered. 23. From the trend of cross-examination, it reflects that such search and seizure of article is not at all denied by the accused/appellant. In such backdrop, there cannot be two parallel stories of the defence side that he knows about the refine oil which was carried in his vehicle but does not know about the drugs that was also found under the said cartons of refine oil. Such ignorance tried to be projected by the accused/appellant is of no avail. 24. In view of the evidence of the PW.4 that he was informed by the PW.9, about the secret information, which he reduced to writing vide Ext.1 and was also duly communicated to the Commissioner of the Customs through Ext.5, is indicative of sufficient compliance of the provision of Section 42 of the NDPS Act. Similarly, there is nothing to show about illegality in conducting the search and seizure, which may amount to violation of Section 52 of the NDPS Act. Similarly, there is nothing to show about illegality in conducting the search and seizure, which may amount to violation of Section 52 of the NDPS Act. The learned counsel for the appellant has placed reliance on the decision of the Apex Court in Kishan Chand vs. State of Haryana, reported in 2013 STPL (LE)47138 SC in support of his contention that noncompliance of mandatory provision under Section 42 of the NDPS Act is fatal to the prosecution and this provision being mandatory in nature, the prosecution case must fail where there is total noncompliance of statutory provision of Section 42 of the NDPS Act. But in the present case, having regard to the positive evidence on record as discussed above, it is not a case of non-compliance of the aforesaid provision of law but the witnesses have duly proved about the compliance of the aforesaid provision, as discussed above. So the submission on this aspect is of no substance. 25. So far as the independent witnesses examined by the prosecution, it would go to show that the PW.7 Bishnu Pandit (an Electrician, resident of Brahmaputra Apartment, Pattharquarry) and PW.8 Nripen Bania (a Plumber, resident of Brahmaputra Apartment, Pattharquarry), in their evidence have stated that on 21.06.2013, in the morning, they were called by Mr. Basumatary/PW.2 and Mr. Hazarika/PW.9 of Customs Department, to remove certain articles from a truck. They were told by the officers of the Customs Department that they have caught hold a 12 wheelers truck along with articles and they were called upon to check the goods. PW.7 and PW.8 with help of some labourers removed the tarpaulin from the truck and they saw that there was large number of cartons containing Gokul brand refine oil. After removing the refine oil, they found many white sacks in the front side of carriage part of the truck which was brought down and in the said sacks, several cartons containing phensedyl cough syrup were found. Both of them have stated that those phensedyl cough syrup bottles were taken out from the packets and samples were taken in their presence and the remaining parts were kept in packets. Both of them signed the seizure list Ext.2 and they identified the accused persons who were in the truck namely, Suman Das (driver) and Nandalal Deb (helper). 26. Both of them have stated that those phensedyl cough syrup bottles were taken out from the packets and samples were taken in their presence and the remaining parts were kept in packets. Both of them signed the seizure list Ext.2 and they identified the accused persons who were in the truck namely, Suman Das (driver) and Nandalal Deb (helper). 26. No serious cross-examination was done to those witnesses but as PW.7 stated that he cannot say if the tarpaulin was removed from the truck before reaching the Brahmaputra Apartment and the other witness (PW.8) stated that the seizure was made at 6:30 A.M. and it is highly contended that the seizure is doubtful as they failed to support the content of the seizure list. However there was no suggestion that no such article was recovered from the vehicle of the accused/appellant and their signature in the seizure list. Such a statement of seizure witnesses is not at all destructive of their evidence, while the witnesses has specifically stated about the recovery of drugs from the vehicle of the accused persons. Because of non-examination of the owner of the vehicle nor the person who loaded the article, the positive findings that has been given by those seizure witnesses cannot be discarded only because they are residents of Brahmaputra Apartment, where other witnesses have their access, having their office. 27. The learned counsel for the appellant has also assailed that the prosecution cannot rely upon the statement recorded under Section 67 of the NDPS Act, as the same was not voluntary and the accused/appellant has denied to have made such statement on his own. Referring to the decision of Hon’ble Supreme Court in Tofan Singh vs. State of Tamilnadu, reported in 2013 (12) SCALE 552, it has been contended that by aforesaid aspect whether such statement recorded under Section 67 of the NDPS Act, can be treated as a statement under Section 161 of the CrPC of it partakes the character of statement under Section 164 of the CrPC, the matter has been referred to a larger Bench, which is not yet decided. 28. In the aforesaid decision, the issue was whether the statement recorded by the Investigating Officer under Section 67 of the NDPS Act, can be treated as confessional statement or not, even if the officer is not a Police Officer. 29. 28. In the aforesaid decision, the issue was whether the statement recorded by the Investigating Officer under Section 67 of the NDPS Act, can be treated as confessional statement or not, even if the officer is not a Police Officer. 29. Now in the instant case, the statement of the present accused/appellant and the other was recorded in presence of PW.4 and PW.9 and in fact the questionary was put by these witnesses, and the answers were written by the accused themselves. The accused has also made a declaration that they have written the same voluntarily without any threat or coercion. In the said statement they have admitted all about of carrying of such refine oil and contraband drugs in the vehicle at the instruction of the owner of the vehicle and the consignor. 30. Even if the same is not treated as confession but the same stands corroborated the version of the witnesses regarding finding of the seized articles from their vehicle. 31. Section 67(c) of the NDPS Act provides that the officer empowered during the course of inquiry can examine any person acquainted with the facts and circumstances of the fact. In the strict sense, such a statement cannot be recorded as a confession but can be considered whether it supports/corroborate the prosecution case. Obviously it will not at all be safe to rely upon the admission of the accused persons in such statement. But in the instant case, we can say that such statement has corroborated the prosecution case about carrying such contraband in the vehicle driven by the appellant. 32. Skipping apart the statement of the accused person, the prosecution has been able to prove the fact that the alleged contraband which is in commercial quantity, amounting to 8400 bottles of phensedyl cough linctus, containing 1.6 Kg Codeine Phosphate was recovered from the conscious possession of the accused/appellant Suman Das, driver of the aforesaid truck. On the other hand, the appellant failed to scatter the evidence of the prosecution side to suggest that the investigation was not impartial. The accused/appellant, being driver of vehicle, must be aware of the article he carried and non-explanation is fatal. 33. So far as the contention of the appellant regarding the violation of Section 52A of the NDPS Act, that no specific form of certificate of correctness by the Court concerned. The accused/appellant, being driver of vehicle, must be aware of the article he carried and non-explanation is fatal. 33. So far as the contention of the appellant regarding the violation of Section 52A of the NDPS Act, that no specific form of certificate of correctness by the Court concerned. It reveals from Ext.2, the inventory that the same was produced before the learned Chief Judicial Magistrate, Kamrup and the Court has signed the inventory along with the related documents. The Hon’ble Supreme Court in the case of State of Punjab vs. Makhan Chand reported in (2004) 3 SCC 453 , has observed that Section 52A deals with the disposal of the seized narcotic drugs and psychotropic substance only. It further observed that the same does not empower the Central Government to lay down the procedure for search for an accused but only deals with the disposal of the seized drugs. Accordingly it is not a case that the prosecution has failed to comply the provision of Section 52 of the NDPS Act, as has been contended. 34. The accused appellant being the driver of the said truck have full control and knowledge about the said article loaded in his truck but he suppressed about the drugs before the officers of the customs while enquired into and he has shown only the documents relating to the refine oil, loaded in the truck. 35. That apart, the grounds of appeal about violation of Sections 50 and 57 of the NDPS Act is absolutely devoid of merit and it is not a case of body search and there is nothing to show that the arrest and seizure has been made in violation with law. 36. Persuaded by the overwhelming evidence on record, it can be held that the prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt and the accused has been rightly convicted by the learned Trial Court. Accordingly, while maintaining the conviction and sentence and the fine, only one relief is provided that in default of payment of the fine, the sentence is reduced to two months instead of two years, as ordered by the Trial Court. 37. With the aforesaid minor modification in regard to the fine, the appeal stands dismissed. 38. Return back the LCR along with a copy of this judgment.