Research › Search › Judgment

Meghalaya High Court · body

2022 DIGILAW 71 (MEG)

Hiralal Reang v. The Union of India

2022-03-31

H.S.THANGKHIEW, SANJIB BANERJEE

body2022
JUDGMENT 1. The appellant herein has been convicted for the commission of an offence under Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and punished under Section 21(c) thereof to suffer rigorous imprisonment for ten years with a fine of Rs. 1 lakh. The judgment of conviction was pronounced on September 5, 2019 and the sentence was also passed on the same date. 2. According to the Customs authorities, following an intelligence report that a truck apparently transporting rice from a Food Corporation of India (FCI) railway siding in Guwahati and travelling to Agartala may also be ferrying drugs, appropriate orders were issued in compliance with the relevant provisions for a search team to be put in place to intercept the vehicle. In the early hours of October 29, 2014, the relevant vehicle was intercepted some 40 km outside Shillong. The case made out by the Customs authorities was that since the vehicle had been stopped in the middle of the highway and it may have not been prudent to conduct a search at the spot, particularly considering the hour of the day, the vehicle was escorted to the Customs office in Shillong while it continued to be driven by the appellant herein. 3. From the evidence adduced before the trial court, it appears that one Andrew Swer of Laban and another Naresh Thakur of Keating Road were called as independent witnesses while the unloading and search operations were conducted and, in the presence of the two witnesses, the unloading of the truck was completed and it was discovered that instead of the full consignment complement of 310 bags of rice that was loaded in the truck at Guwahati as per the consignment note carried on the truck, only 257 bags of rice were on board the vehicle and, in addition, 81 HDPE bags of Phensedyl cough syrup were discovered. Samples were drawn in more than one lot in the presence of the witnesses, they were sealed and signatures of the witnesses obtained on the bags containing the samples. The other bags containing the contraband were also sealed and the signatures of the seizure witnesses were appended thereto. The witnesses proved their signatures in court and testified that they had been called in the early hours of October 29, 2014 and required to be present during the time that the search and seizure operations continued. 4. The other bags containing the contraband were also sealed and the signatures of the seizure witnesses were appended thereto. The witnesses proved their signatures in court and testified that they had been called in the early hours of October 29, 2014 and required to be present during the time that the search and seizure operations continued. 4. One of the seizure witnesses did indicate that the unloading operations had commenced by the time he arrived at the spot, but the other seizure witness did not refer to the unloading having commenced before his arrival. On an overall reading of the testimonies of the seizure witnesses, no anomaly is found and the suggestions to the contrary put forth on behalf of the defence were robustly repelled. There is no doubt that some of the tags bearing the signatures of the seizure witnesses were missing, but there is equally no doubt that the relevant bags said to contain the contraband were produced in court and even the bags containing the samples that had been kept in the court's custody were produced at the time of the trial. Since the seizure was of a total amount of 24,000 bottles each containing 100 ml of Phensedyl, the bags containing such goods could not be conveniently housed in any place under the court's custody and were kept deposited in the Customs warehouse or godown. The person in charge of the godown was called as a witness and examined. Such witness testified that both the 257 bags of rice and the 81 bags containing the contraband were deposited but, subsequently, the 257 bags of rice were made over to a representative of the transporter who had been authorised to receive such material. Even such representative of the transporter was examined as witness. There seems little scope for the goods to have been tampered with. 5. An FCI employee was also called as a witness so as to indicate that as per the consignment note, 310 bags of rice had been loaded in the relevant truck at the railway siding in Guwahati and they were to be delivered at an FCI facility in Agartala. 5. An FCI employee was also called as a witness so as to indicate that as per the consignment note, 310 bags of rice had been loaded in the relevant truck at the railway siding in Guwahati and they were to be delivered at an FCI facility in Agartala. Though the elaborate cross- examination of the FCI witness by the defence seems rather humorous, it merely shows the extent of desperation to try and discredit the case of the prosecution by seeking to even take apart such witnesses, who was merely a formal witness called only to prove the FCI documents and no more. 6. It is also not in dispute that the appellant herein rendered a statement before the investigating officer and a copy of the statement was marked as Exhibit 7 in course of the trial. One particular paragraph from such statement of the appellant stands out: On enquiry, I told the officers that I loaded the FCI Rice at Changsari and came to Boragaon, Guwahati where I contacted the owner of the said truck Shri Bittu for the expenditures to be incurred on the journey to Agartala. As directed by him, I went to Maligaon to meet the owner of the truck and after collecting some money from him I went to back to Boragaon, where I had parked the truck. But, to my surprise, the truck was not at the place where I parked. So, I contacted the said owner and he told me that the truck is lying at a little distance ahead from where I initially parked. As per his direction, I went ahead and found the truck with no one around but the key was inside the truck. I then proceeded for my onward journey to Agartala along the National Highway(NH-40). I further state that the detected/recovered Phensedyl Cough Linctus was loaded during my absence when I went to Maligaon to meet the said owner of the truck. The owner of the truck may be aware of the recovered Phensedyl. I also stated that I do not have any documents for the recovered Phensedyl. 7. I further state that the detected/recovered Phensedyl Cough Linctus was loaded during my absence when I went to Maligaon to meet the said owner of the truck. The owner of the truck may be aware of the recovered Phensedyl. I also stated that I do not have any documents for the recovered Phensedyl. 7. Upon referring to the oral evidence of all the witnesses called at the trial and the material exhibits that were produced, the trial court found that though an additional charge of conspiracy had been levelled against the appellant herein, in the absence of any other being charged, such charge of conspiracy could not be sustained. However, on the basis of evidence before the trial court, the commission of the offence under Section 8 of the Act was found to have been made out, which culminated in the sentence being awarded. 8. The appellant raises several issues. For a start, the appellant refers to Section 100 of the Code of Criminal Procedure, 1973 and says that the provisions therein, particularly in sub-sections (4), (5) and (6) were not complied with in this case. The appellant submits that the provisions of the Code, insofar as they are not inconsistent with the Act of 1985, have to be adhered to even in terms of Section 51 of the Act of 1985. The appellant refers to Section 52A of the Act of 1985 and Standing Order No. 1 of 1989 issued as to how the seized contraband has to be preserved, dealt with and disposed of. 9. According to the appellant, if the contraband is not preserved by ensuring that it is insulated against any kind of tampering or if the contraband, which is the primary evidence, is not produced in court at the trial or if the manner in dealing with the contraband is found to be at variance with the said Standing Order, the resultant procedural irregularity that would have occurred would invariably give the accused the benefit of the doubt in certain circumstances. The appellant asserts that as the driver of a truck of a contractor engaged in the transportation of FCI goods, it was his duty to merely drive the truck, upon the goods being loaded at the place of loading, to the place of discharge; and he could have not been held responsible for the contents of the vehicle. 10. The appellant asserts that as the driver of a truck of a contractor engaged in the transportation of FCI goods, it was his duty to merely drive the truck, upon the goods being loaded at the place of loading, to the place of discharge; and he could have not been held responsible for the contents of the vehicle. 10. The appellant has referred to a judgment reported at (2008) 16 SCC 417 (Noor Aga v. State of Punjab) for the principle enunciated therein that if physical evidence of the material seized is not available or the relevant material is not produced at the trial, an adverse inference would be drawn. A further judgment, reported at (2011) 5 SCC 123 (Ashok Alias Dangra Jaiswal v. State of Madhya Pradesh), has also been placed for the proposition laid down therein that when the seized goods were not produced before the court, the mere reliance on a report rendered by a forensic science laboratory would not suffice since the link between the goods seized and the report would be lost in the absence of the seized goods being produced or accounted for. 11. In the case of Noor Aga, the appellant has relied on the part of the judgment dealing with non-production of physical evidence covered by paragraphs 85 to 108 of the report. In that case, 1.4 kg of heroin was alleged to have been concealed in a cardboard container otherwise designed for carrying grapes and such container was allegedly recovered from the appellant before the Supreme Court at Raja Sansi Airport in Amritsar. The cardboard carton from which the recovery was allegedly made was not produced in court and, it is in such context, that the Supreme Court found that the primary evidence in support of the case was missing and had not been produced and it could not be said that the case against the appellant before the Supreme Court had been affirmatively established. In the case of Ashok, three packets of heroin were seized from the pockets of the kurta that the appellant before the Supreme Court was alleged to have been wearing. In the case of Ashok, three packets of heroin were seized from the pockets of the kurta that the appellant before the Supreme Court was alleged to have been wearing. However, the seizure witnesses turned hostile as would be evident from paragraph 9 of the report and it is evident that the samples said to have been drawn remained uncared for during a period of four or five days when they were susceptible to have been tampered with. Upon noticing such facts at paragraph 10 of the report, the Supreme Court observed, at paragraph 12 thereof, that there was no evidence, connecting the forensic report with the substance that was seized from the possession of the appellant. 12. Apart from the fact that the quantities involved in the two cases were such as could have been conveniently produced in court and examined, in the present case 24,000 bottles of codeine mixture in the form of Phensedyl in 100 ml bottles were seized. It also appears that the bags containing the bottles were produced in court and the seizure witnesses testified to their signatures appearing in the tags appended to the overwhelming majority of the bags. However, the bags may have not been opened to peer into them to ascertain whether they, indeed, contained the Phensedyl bottles alleged to have been seized in this case. 13. This is not a case where the seized contraband was not produced before the court or was not available, but only that the seized contraband that was preserved in bags was not taken out of the bags and formally displayed in course of the trial and no attempt may have been made to open the bags to inspect the contents thereof. Indeed, if the appellant harboured any doubt in such regard, it was incumbent on the appellant, who was present in course of the trial, to ask for all or any of the bags to be opened and checked. Though the appellant's refrain at this stage is that it is not for the accused to do anything, but for the prosecution to prove its case beyond any reasonable doubt, the facts of the present case would not attract the principles laid down in the two reported judgments cited on behalf of the appellant. 14. Though the appellant's refrain at this stage is that it is not for the accused to do anything, but for the prosecution to prove its case beyond any reasonable doubt, the facts of the present case would not attract the principles laid down in the two reported judgments cited on behalf of the appellant. 14. According to the prosecution, it had to establish, first, that the seized contraband was seized from the possession of the accused; secondly, that the goods seized were actually contraband; and, finally, as to whether the quantum of contraband seized amounted to commercial quantity or not. It is submitted that there is no iota of doubt that the seized goods in this case were obtained from the vehicle driven by the appellant herein and there was no other person in the vehicle at the time that it was intercepted. It is the further submission of the respondent that the FSL report is quite clear and the relevant person who rendered the report was examined as PW1 and he proved his report to the effect that each 100 ml bottle of Phensedyl contained codeine up to 149.10 mg, such that the total amount of contraband seized was in excess of 3.5 kg, well above the threshold for being considered as non-commercial. 15. Some minor matters have been referred to on behalf of the appellant, including an apparent anomaly in one of the seizure witnesses referring to the unloading taking place at Keating Road and the other witness referring to such activity being at MG Road. It has been clarified on behalf of the respondent that the Customs office in Shillong abuts Keating Road on one side and MG Road on the other. In such context, the fact that one of the seizure witnesses referred to Keating Road and the other referred to MG Road would not amount to much. 16. A second point which is raised in such regard has also to do with the seizure witnesses. It is submitted on behalf of the appellant that even though the unloading and searching operations were conducted at the Customs office in Shillong, a local witness in the form of Naresh Thakur was obtained as he runs a hair dressing salon in Keating Road, but the other witness was brought from Laban which is quite some distance away. 17. It is submitted on behalf of the appellant that even though the unloading and searching operations were conducted at the Customs office in Shillong, a local witness in the form of Naresh Thakur was obtained as he runs a hair dressing salon in Keating Road, but the other witness was brought from Laban which is quite some distance away. 17. Considering the time of the day when the unloading and search operations were conducted, it may not have been unusual not to find a second witness in the locality who would be an appropriate person for the exercise. It is nobody's case that Andrew Swer has been used as a regular witness or is otherwise linked to the Customs officials or the Department in manner. Indeed, such witness' testimony comes through as normal, including the minor inconsistencies that are excusable as a result of the passage of time. 18. There is no doubt that it was established in course of the trial and on the basis of the evidence before the trial court that it was the appellant herein who was the driver of the vehicle from which a large quantity of contraband was seized. Indeed, if the consignment note of FCI indicated 310 bags of rice being loaded at the railway siding in Guwahati, an explanation was warranted from the appellant as to how 53 of 310 bags of rice went missing and 81 bags of contraband were found in their place. 19. An attempt at an explanation was made by the appellant herein as would be apparent from the statement given to the investigating officer. However, at the time of the trial, the appellant did not endeavour to call any witness or, at any rate, prove that it was possible that the contraband may have been loaded into his truck or a part of the FCI goods may have been unloaded despite his exercise of best diligence. Further, the story made out before the investigating officer does not ring true. The appellant claimed that he had visited the place of the owner of the truck to obtain money for the trip and that he had parked his truck at a particular place, but later found the truck not to be seen at such spot. That would imply that the appellant had left the truck unguarded and had taken no steps to remove the ignition key therefrom. That would imply that the appellant had left the truck unguarded and had taken no steps to remove the ignition key therefrom. In fact, the appellant asserted that when he found the truck some distance away from where he had parked it, there was no one around and the ignition key was in the place. 20. The final ground urged by the appellant is that the investigating officer was not examined in this case. This was a case which was led by Customs officials and the relevant Customs personnel, including the Superintendent tasked with the duty to intercept the truck, were examined. It is also elementary that the mere failure to call the investigating officer as a witness may not be fatal unless there was some key evidence that was required to be proved by the investigating officer but was not done. In the present case, there can be no manner of doubt that the Customs officials intercepted the truck and found the appellant to be the only person therein. Such truck was brought over from the highway to the Shillong office of the Customs authorities and the goods therein were unloaded and searched in the presence of the seizure witnesses and the huge cache of contraband discovered. The safe-keeping of the goods has been proved upon the in-charge of the deposit section of the relevant Customs warehouse being examined. In such circumstances, the investigating officer could not have added to the prosecution case or detracted therefrom in any manner for the failure to examine him being cited as a valid ground of defence by the appellant herein. 21. The trial court duly considered the evidence of all the witnesses called at the trial. The trial court referred to the material exhibits that had been produced in course of the trial and found that there was no doubt that it was the appellant who drove the vehicle containing the large quantity of contraband. The circumstances were such that it was for the appellant herein to indicate how the contraband came to be in the vehicle that he was driving. The respondent here has appropriately relied on the presumption of culpability that arises under Section 35 of the Act of 1985. 22. For the aforesaid reasons, the judgment of conviction does not call for any interference. The respondent here has appropriately relied on the presumption of culpability that arises under Section 35 of the Act of 1985. 22. For the aforesaid reasons, the judgment of conviction does not call for any interference. The punishment awarded to the appellant is in keeping with the appropriate provisions and is a necessary corollary to the judgment of conviction. 23. Crl.A. No. 24 of 2019 and Crl.M.C. No. 58 of 2019 are dismissed. 24. Let a copy of this judgment be immediately made over to the appellant free of cost.