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2021 DIGILAW 496 (GAU)

Pramod Konwar v. State of Arunachal Pradesh

2021-08-19

ROBIN PHUKAN

body2021
ORDER : 1. This petition under section 439, Cr. P.C. is preferred for releasing accused, Shri Pramod Konwar, on bail, who has been languishing in jail hazot for last 107 days, in connection with KSA/SC (NDPS) Case No. 06/2021 corresponding to Changlang P.S. Case No. 25/2021 registered under section 21(C)/29 of NDPS Act. 2. Heard Mr. N. Sharma, the learned counsel for the petitioner. Also heard Ms. T. Jini, the learned Additional Public Prosecutor for the State of Arunachal Pradesh. 3. Mr. N. Sharma, the learned counsel for the petitioner, has highlighted following points during his argument:— (i) That, accused-Pramod Konwar is arrested by Police on 2.5.2021, from his residence at Margherita and no contraband substance was recovered from his possession except three mobile phones belonging to him; (ii) That, while conducting search in the residence of the accused, the Investigating Officer has not followed the procedure prescribed in section 42 of NDPS Act and no ground of belief is recorded in the seizure list for conducting the search without authorization of search “warrant and “while conducting search the police officer has is not recorded the ground of his belief; (iii) That, the accused was arrested solely on the basis of statement of co-accused and CDR of the mobile phones seized from the possession of the accused and both are not legally admissible in evidence; (iv) That, there is no chance of conviction of the accused on the statement of co-accused and on the basis of CDR and he is behind the bar for last 107 days and his right to life and personal liberty, as enshrined in the article 21 of the Constitution of India, is put in to peril, on the basis of legally inadmissible evidence. No other materials brought or recorded to connect the accused with the offence; and (v) That, the accused is the sole bread winner of his family and he will face trial and will never indulge in hampering investigation and tampering of witnesses. 4. Mr. Sharma, the learned counsel for the petitioner, also referred following case laws in support of his submission, and contended to allow the petition. 4. Mr. Sharma, the learned counsel for the petitioner, also referred following case laws in support of his submission, and contended to allow the petition. (i) Nurezzaman Islam @ Nurajjaman v. State of Assam, Bail Application No. 1464/2019, Order dated 19.6.2019; (ii) Dalip Singh @ Langda v. The State (NCT of Delhi), Bail Application No. 1312/2018; (iii) Lawarance D'Sauza v. State of Maharashtra, 1992 Cri LJ 399; and (iv) Shravan Kumar v. State of NCT of Delhi Bail Application No. 175/2018, Order dated T2.3.201S. (v) Sundaresan @ Meganathan @ Mega v. State, 1993 Cri LJ 3342. (vi) Sarija Banu @ Janarthani @ Janani v. State through Inspector of Police, (2004) 12 SCC 266 . 5. Whereas, Ms. T. Jini, the learned Additional Public Prosecutor for the State of Arunachal Pradesh, has submitted that the Officer who conducted search and seizure in the house of the accused, Promod Konwar, is a police officer of gazetted rank as per Notification No. HMB(A)-01/2005, dated 3rd March, 2005 of Home Department, Govt, of Arunachal Pradesh and as such, section 42 of the NDPS Act is not attracted, rather section 43 of the NDPS Act is attracted and the same is duly complied with here in this case. It is further submitted that the complainant police officer has informed his higher authority, the Superintendent of Police, within 24 hours about the information he received and as such it cannot be contend that section 42 NDPS Act also not been complied with. It is further submitted that the accused-Promod Konwar was made on the basis of statement of two co-accused, namely, Tuleswar Chetia and Tachom Tangsa. Further submission of Ms. Jini is that the CDR analysis of the seized mobile phones of accused also reveals his complicity with the drug paddlers. Ms. Jini further submitted that the accused has admitted consuming drugs and also paddling the same and his statement is recorded under section 67 of the NDPS Act. Further submission of Ms. Jini is that the CDR analysis of the seized mobile phones of accused also reveals his complicity with the drug paddlers. Ms. Jini further submitted that the accused has admitted consuming drugs and also paddling the same and his statement is recorded under section 67 of the NDPS Act. The learned Additional Public Prosecutor has further submitted that the period of detention (108 day) in jail hajot would not help the accused anymore as the contraband substance recovered from the possession of co-accused is diacetylmorphine which is known a Heroin and though quantity of the contraband substance is less than commercial quantity, but above the small quantity, and because of the embargo under section 37 of the NDPS Act, the accused, against whom Charge Sheet has been submitted under section 27(A)/29 of the NDPS Act, cannot be enlarged on bail, at this stage. She has referred to following 3 case laws in support of her submissions, and contended to reject the bail petition. (i) Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar, (2001) 1 Crimes 258 (SO; (ii) State of Madhya Pradesh v. Kajad, (2001) 4 Crimes 285 (SO) and (iii) Beikhokim Alias Veikhokin Kukini v. State of Manipur, (1996) 2 Gau LJ 435. 6. Having heard the submission of learned Advocates of both sides, we have carefully gone through the cases laws and also perused the Case Record carefully. It appears that the ratio laid down in the case laws, referred by the learned counsel of both sides supported their respective submissions. But, it has to be seen how far the same are applicable to the facts and circumstances here in this case. 7. It appears that the ratio laid down in the case laws, referred by the learned counsel of both sides supported their respective submissions. But, it has to be seen how far the same are applicable to the facts and circumstances here in this case. 7. It appears that the Sessions Case No. KSA/SC (NDPS) 06/2021, corresponding to Changlang P.S. Case No. 25/2021, was registered under section 21(C)/29 of NDPS Act, on the basis of an F.I.R., lodged by Inspector C.A. Namchoom on 18.8.2020, to the effect that acting on a tip off that a consignment of contraband substance was coming from Assam side and will be exchanged near Namdang check gate of Changlang District, he, along with party and with one Executive Magistrate, proceed to the said check gate and at about 13.35 hours, found one Ma hind ra pick up vehicle bearing registration No. AS 23 CC 1566, entering into the check gate with loaded bricks and proceeded towards the designated exchange place inside the check gate, then along with other police personnel, he surround the vehicle and the people and on enquiry on the spot, they have apprehended Duyu Sunny, Sentum Poyum, Kupseng Wangrey and Tuleswar Chetia and served them Notice under section 50 of the NDPS Act and, thereafter, he conducted search in presence of Executive Magistrate. During the search, he found pink coloured contraband substance weighing 141.50 grams in two packets and cash of Rs. 20,000 from Shri Duyu Sunny; (i) Bolero pick up vehicle bearing Registration No. AS 23 CC 1566, from Tuleshwar Chetia (ii) Samsung Mobile handset with sim card bearing No. 8011557879, golden colour (iii) Glamour Motor cycle black-blue colour bearing Registration No. AS 23X-6136, with key from Shri Tuleshwar Chetia; and one Mobile Handset with sim card No. 8259078708, from Shri Santum Poyum, and he seized the same in presence of witness and Magistrate preparing seizure list. 8. Then, after investigation, the Investigation Officer laid. Charge Sheet No. 25/2020, dated 15.10.2020, against the accused-Duyu Sunny, Tuleshwar Chetia, Techom Tangha and Sentum Poyom to stand trial in the court under section 21(C)/29 of the NDPS Act. 8. Then, after investigation, the Investigation Officer laid. Charge Sheet No. 25/2020, dated 15.10.2020, against the accused-Duyu Sunny, Tuleshwar Chetia, Techom Tangha and Sentum Poyom to stand trial in the court under section 21(C)/29 of the NDPS Act. Subsequent to this and on the basis of the statement made by Tuleshwar Chetia and Techom Tangha, the Investigating Officer arrested the accused-Promod Konwar from his residence at Margherita on 2.5.2021, and seized 3 Mobile Phone from his possession and having found sufficient materials against him, the Investigating Officer laid Supplementary Charge Sheet against him on 22.5.2021 to stand trial in the court under section 27A/29 of the NDPS Act. 9. It appears that the complainant Police Officer, who conducted search and seizure is an Inspector of Police and he is Gazetted Officer in view of the Notification of the Home Department referred herein above. And, as such, there is substance in the submission of the learned Addl. P.P. that section 41 of NDPS Act is applicable here this case instead of section 42 of the said. Act, which he has duly complied with. Further, it is apparent that the complainant Police Officer has sent the information to the Superintendent of Police, Changlang through a W.T. message within 24 hours. Thus, it cannot be said that the complainant police officer has not complied with the mandatory provisions. 10. It is fact that no contraband substance was recovered from the possession of accused-Promod Konwar. Perusal of the record, of the learned court below reveals that the Investigating Officer has submitted the charge sheet against the accused primarily on the basis of following materials:— (i) Statements of co-accused, Tuleshwar Chetia and Techom Tangha; (ii) CDR analysis of the Mobile Numbers at accused-Promod Konwar with that of the other charge sheeted accused. (iii) Own statement of the accused, purportedly recorded under section 67 of the NDPS Act. 11. Now it is to be seen whether the above materials, based on which the accused, is charges sheeted under section 27.A/29 of the NDPS Act is sufficient to keep him behind the bar, curbing his right to liberty guaranteed by the article 21 of the Constitution of India. According to Mr. Sharma, the learned counsel for the accused the accused cannot be held guilty on the basis of the aforementioned, materials. Whereas, Ms. T. Jini, the learned Addl. According to Mr. Sharma, the learned counsel for the accused the accused cannot be held guilty on the basis of the aforementioned, materials. Whereas, Ms. T. Jini, the learned Addl. P.P. has submitted that it is sufficient to convict the accused. 12. In view of the rival submission, now it be seen how far the submissions are acceptable. It is to be noted here that while dealing with the statement of the co-accused, Hon'ble Supreme Court in Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, Criminal Appeal No. 949 of 2018, dated 31st July 2018, held that statement of co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and at best it can be used or utilized in order to lend assurance to the court. 13. It is apparent that in his statement before the Investigating Officer he admitted that he consumed drugs and presently is undergoing treatment and he also supplied to several person at Changlang in the past and had also admitted having supplied 141 grams of drugs through Tuleshwar Chetia to Changlang, which was meant for Techom Tangha 100 grams and Duyu Sunny 40 grams. The quantity of drugs, recovered from peddlers, is 141 grams of diacetylmorphine and it appears that the same is of intermediate quantity. 14. While dealing with statement of the accused under section 67 of the NDPS Act, Hon'ble Supreme Court, in Tofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, by majority view, held as under;— “158. We answer the reference by stating; (i) That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 15. Thus, the alleged statement, made by the accused-Promod Konwar before the complainant Police Officer, on 2.5.2021 cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 15. Thus, the alleged statement, made by the accused-Promod Konwar before the complainant Police Officer, on 2.5.2021 cannot be used as a confessional statement in the trial of an offence under the NDPS Act. But, the statement, purportedly been made under section 67 NDPS Act has not yet been retracted. The stage of retraction has not yet been arrived. So, at this stage it cannot be said that his statement under section 67 NDPS Act, cannot be looked into to see the prima facie case. 16. Now, coming to the CDR analysis of the accused-Promod Konwar with that of the other charge sheeted accused-persons, it becomes apparent that accused-Promod Konwar has contacted accused Tuleshwar Chetia 146 times from 1st June, 2020 to 18th August 2020; Techom Tangha 108 times from 1st June, 2020 to 18th August, 2020 and his wife 33 times; and Duyu Sunny 4 times. It is worth noting that the contraband substance was recovered from other charge sheeted accused-persons on 18.8.2021. Now, it is well settled that CDR are admissible as secondary evidence with the rider that it must be accompanied with a certificate under section 65B of the Evidence Act. In the instant case no such certificate is found available in the record of the court below. But, the learned Addl. P.P. has submitted that it has to be considered at a later stage only. There is substance in the said submission. The CDR analysis reveals complicity’ of accused-Promod Konwar with the other charge sheeted accused, and a conspiracy angle cannot be ruled out at this stage. 17. In the aforesaid view of the case, the twin requirements of section 37 of NDPS Act cannot be said to be fulfilled. From the materials collected by the Investigating Agency against the accused-petitioner, it cannot be said that there is no reasonable ground for believing that he is not guilty of such offence and that he is unlikely to commit any offence while on bail. At least from the data of CDR analysis it cannot be ruled out. 18. In view of the aforesaid facts and circumstances, this bail application is rejected at this stage. It appears that the ratio laid down in the cases, referred by the learned counsel for the accused, are not applicable in all force to the peculiar facts and circumstances here in this case. 19. 18. In view of the aforesaid facts and circumstances, this bail application is rejected at this stage. It appears that the ratio laid down in the cases, referred by the learned counsel for the accused, are not applicable in all force to the peculiar facts and circumstances here in this case. 19. It is clarified that the observations with regard to the case of the applicant, made in this order are strictly confined to the disposal of this bail petition. And it must not be construed, to have any reflection on the ultimate merits of his case.