Meghalaya High Court
Smti Suman Deb vs State Of Meghalaya on 5 June, 2015
Bench: Uma Nath Singh, T. Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
Crl. Appeal No.5/2014
Smti. Suman Deb,
D/o (L) R. Deb,
R/o Mawbynna Lapalang, Shillong,
East Khasi Hills District, Meghalaya :::: Appellant
-Vs-
State of Meghalaya :::: Respondent
BEFORE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH For the Appellant : Mr. HR Nath, Adv For the Respondent : Mr. S Sen Gupta, Addl. PP Date of hearing : 21.05.2015 Date of Judgment & Order : 05.06.2015 JUDGMENT AND ORDER (Justice T. Nandakumar Singh) The appellant/accused Smti. Suman Deb filed the criminal appeal No.5/2014 challenging the judgment and order of the learned Special Judge (NDPS), Shillong dated 06.06.2014 passed in Crl. (NDPS) 1/2010 convicting the appellant/accused Smti. Suman Deb for the commission of the offence under Sections 22(c) and 22(a) of the NDPS Act, 1985 and the order of sentence dated 13.06.2014 sentencing her to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh under Section 22(c) of the NDPS Act and in default of payment of fine, a further term of simple imprisonment of one year and also rigorous imprisonment of 6 months under Section 22(a) of the NDPS Act, and all sentences shall run concurrently. Page 1 of 21
2. Heard Mr. HR Nath, learned counsel for the appellant/accused and Mr. S Sen Gupta, learned Addl. PP.
3. The case of the prosecution is clearly depicted in the impugned judgment and order dated 06.06.2014 passed by the learned Special Judge (NDPS), Shillong. However, for deciding the present appeal the prosecution story, in nutshell, is recapitulated.
4. S.I. Subir Sangma (PW 10) submitted a report that on 28.04.2010 at about 4:00 PM, Inspector H.S. Rana (PW 2) and staff of 67 Bn. CRPF caught red handed two persons namely, Smti. Suman Deb (appellant/accused) and Shri. Ruby Rymbai while the appellant/accused Smti. Suman Deb was trying to sell a packet of SPASMO PROXYVON containing 18 (eighteen) strips, total 144 (one hundred forty four) numbers of capsules to Ruby Rymbai. On being produced before the Police station by the Inspector H.S. Rana (PW 2), the said packet of SPASMO PROXYVON was seized at the Police station by him i.e. S.I. Subir Sangma (PW 10). S.I. Subir Sangma (PW 10) passed the information over telephone to O/C Rynjah P.S. Inspector J.S. Kharsati, who passed the said information in writing to the Deputy Superintendent of Police (Crime), Shillong Shri. Vivek Syiem (PW 7) with a request to give authorization to S.I. Subir Sangma (PW 10) to carry on search and seizure as there was high suspicion that the appellant/accused Smti. Suman Deb might have hidden Narcotic drugs in her residence. After receiving the written authorization from the Deputy Superintendent of Police (Crime), S.I. Subir Sangma (PW 10) conducted a search at the house of the appellant/accused Smti. Suman Deb at Lapalang in the presence of independent witnesses namely, Shri. Dino Mawthoh (PW 3), Shri. Donnio Kharkrang (PW 4) and Shri. Newson Richard Pyngrope (PW 8). On searching the house of the appellant/accused Smti. Suman Deb, which was Page 2 of 21 rented from the house owner Smti. Diamond Lawai, who is the wife of Shri. Newson Richard Pyngrope (PW 8) situated at the third floor of the building, two cardboard cartons, one containing packets of SPASMO PROXYVON (containing 5152 capsules) and the other containing NITROZEPAM (containing 1869 tablets) were recovered from the appellant/accused bedroom. Shri. Vivek Syiem, Deputy Superintendent of Police (Crime) i.e. (PW 7) was informed about the matter and he immediately rushed to the place of occurrence with the District Anti Narcotic Task Force personnel and those contraband items were seized at the place of occurrence in presence of the said independent witnesses and the Deputy Superintendent of Police (Crime) i.e. (PW 7).
5. After receiving the Ejahar, Rynjah PS Case No.30(4)2010 under Section 22(b) of the NDPS Act was registered and S.I. Subir Sangma (PW 10) had taken up the investigation of the case. On completion of the investigation, charge sheet against the appellant/accused Smti. Suman Deb was submitted. Charges under Sections 22(c) and 22(a) of the NDPS Act were framed against the appellant/accused Smti. Suman Deb by the learned Special Judge (NDPS), Shillong and read over and explained to the appellant/accused Smti. Suman Deb, who pleaded not guilty and claimed to be tried. In order to prove the case of the prosecution, the prosecution has examined 10 (ten) witnesses namely, PW 1 - S.I. H.P. Lyttan, PW 2 - Inspector H.S. Rana of 67 Bn CRPF, Battalion, PW 3 - Shri. Dino Mawthoh, PW 4 - Shri. Donnio Kharkrang, PW 5 - Shri. Gajendra Nath Deka, Deputy Director, D.F.S. Guwahati, PW 6 - Inspector J.S. Kharsati, PW 7 - D.S.P., Crime, Shri. Vivek Syiem, PW 8 - Shri. Newson Richard Pyngrope, PW 9 - S.I. K. Shabong, PW 10 - S.I. Subir Sangma I/O and exhibited 8 documents i.e. Ext.1 FIR, Ext.2 Seizure List dated 28.04.2010, Ext. 3 Medical prescription for Smti. Suman Deb, appellant/accused, Page 3 of 21 Ext. 4 Medical prescription for Smti. Suman Deb, appellant/accused, Ext. 5 Search and Seizure List dated 28.04.2010, Ext. 6 Panchnama, Ext. 7 F.S.L. Report and Ext. 8 Information to Superior Officer and also exhibited 5 material exhibits i.e. Mt. Ext. 1 Master packet containing Spasmoproxyvon, Mt. Ext. 2 Master packet containing Nitrozepam, Mt. Ext. 3 Seal packet (packet of spasmoproxyvon capsules), Mt. Ext. 4 Sample packets and Mt. Ext. 5 Sample packets.
6. The golden thread which runs through the web of administration of justice and criminal case is that if two views are possible on the evidence in the case, (1) pointing to the guilt of the accused and (2) another to his innocence, the view which is favourable to the accused should be adopted. The paramount duty of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may rise from acquittal of the guilt is not less than from the conviction of the innocence. [Ref: C. Chenga Reddy v. State of A.P.: (1996) 10 SCC 193]. The Apex Court in State of U.P. v. Ashok Kumar Srivastava: AIR 1992 SC 840 held that a great care must be taken in evaluating the evidence and if the evidence relied on is reasonably capable of two influences - one in favour of the accused must be accepted.
7. In Narendra Nath Khware v. Parasnath Khware & Ors:
(2003) 5 SCC 488 held that the High Court did not consider/re-appreciate the evidence on record even if the High Court is the court of first appellate and disposed of the appeal without going into the fact and question of law involved in the case. The Apex Court had expressed its unhappiness to the manner in which the High Court dismissed the appeal. Para 9 of the SCC in Narendra Nath Khware's case (Supra) reads as follows:-Page 4 of 21
"9. We are constrained to observe a growing tendency with the High Courts in disposing of criminal appeals involving vexed questions of law and fact in cursory manner without going into the facts and the questions of law involved in the cases. May be this approach is gaining ground on account of huge pendency of cases. But such a summary disposal is no solution to the problem of arrears of cases in courts. Disposal of appeals where the High Court is the first court of appeal in such a manner results in denial of right of appeal to the parties. So long as the statue provides a right of appeal, in our view the court will be failing in its duty if the appeal is disposed of in such a casual and cavalier manner as the High Court has done in the present case."
8. The paramount duty of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may rise from acquittal of guilt is not less than for the conviction of the innocence. The Supreme Court in Zahira Habullah & Anr. V. State of Gujarat & Ors reported in (2006) 3 SCC 374 through Mr. Justice Arijit Pasayat observed that "in a criminal case fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. Interest of society is not to be treated completely with disdain and as persona non grata. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartially both to the parties and to the community it serves."
9. It is also the case of the prosecution that all the mandatory procedural requirements as provided under Section 42 of the NDPS Act, 1985 had been fully complied with by the investigating authority in the present case. It is the case of the appellant/accused Smti. Suman Deb that Page 5 of 21 the mandatory procedural requirements as provided under Section 42 of the NDPS Act, 1985 were not followed in the present case and also not proved by the prosecution that the said mandatory procedural requirements had been followed. As such, it would be more profitable to quote Section 42 of the NDPS Act, 1985. Accordingly, Section 42 of the NDPS Act, 1985 is reproduced hereunder:-
"42. Power of entry, search, seizure and arrest without warrant or authorization. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property 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 is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, -
(a) Enter into and search any such building, conveyance or place;
(b) In case of resistance, break open any door and remove any obstacle to such entry;
(c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
and Page 6 of 21
(d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]"
10. PW 2 Inspector H.S. Rana stated that on 28.04.2010, he was performing his duty of assisting the police day to day maintenance of law. In the course of his duty, when he reached Rynjah Bazar, one person informed him that there are two suspicious persons moving in the Bazar and after getting the information, he went and found the Smti. Suman Deb (appellant/accused) and one Shri. Ruby Rymbai with a strip of SPASMO PROXYVON in his hand. When he enquired Shri. Ruby Rymbai claimed that the said strip was given to him by the appellant/accused Smti. Suman Deb. He took both of them to Rynjah P.S. and produced them along with the said strip to the police personnel. He along with the police personnel and Assistant Commandant Shri. Ram Binod went to the house of the appellant/accused Smti. Suman Deb and the police conducted house search after breaking the lock of the house in presence of the independent witnesses, but he was standing outside. During search the police recovered some contraband drugs which were packed and sealed in his presence. He put his signature on the seizure list Ext. 2 and Ext. 2/2 is his signature. In his cross examination, he stated that he recovered SPASMO PROXYVON capsules Mt.Ext. 3 from the hand of Shri. Ruby Rymbai. He also stated that he had not recovered the SPASMO PROXYVON capsules from the hand of the appellant/accused Smti. Suman Deb except a prescription issued by the Page 7 of 21 Woodland Hospital. When he was question through the court as to whether the prescription issued by the Woodland Hospital reflected SPASMO PROXYVON capsules, his answer was 'No'. The PW 2 has no knowledge from which part of the room, the contraband drugs were recovered as he was standing outside. Further, he had no knowledge as to who are the occupants of the room from where the said contraband drugs were seized by the police. He also clearly stated in his statement that he had not recovered the contraband drugs i.e. SPASMO PROXYVON from the hand of the appellant/accused Smti. Suman Deb.
11. PW 3 Shri. Dino Mawthoh, said to be the independent witness in the house search of the appellant/accused Smti. Suman Deb stated that on 28.04.2010, he was present at the residence of the appellant/accused Smti. Suman Deb, as he was asked by the police. The police party in his presence broke open the lock of the room occupied by the appellant/accused Smti. Suman Deb and they entered the room for search. During search two cartons of substance which look like medicines were recovered, one from underneath the bed and another from a corner of the room. The police personnel in their presence drawn sample from the master packet and packed and sealed both the master packets and samples in their presence. Mt. Ext. 1 & 2, are the master packets recovered from the place of occurrence and Mt. Ext. 1(1) and 2(1), are his signatures. In his cross examination, he stated that the appellant/accused Smti. Suman Deb used to reside in the said house of his locality for two months prior to the incident along with other family members. There are three members in the family of the appellant/accused Smti. Suman Deb, one is a minor and two are adults. He further stated that he could not remember the names of the two other family members of the appellant/accused Smti. Suman Deb. He further stated that when he and police party reached the house of the Page 8 of 21 appellant/accused Smti. Suman Deb, he found local people and house owner of the appellant/accused Smti. Suman Deb, were present there. From the statement of the PW 3, it is clear that the house of the appellant/accused Smti. Suman Deb from where the contraband drugs were recovered was occupied by not only the appellant/accused but also other family members. From the statement of PW 3, it appears that the room of the appellant/accused Smti. Suman Deb, were jointly occupied by the appellant/accused Smti. Suman Deb, and two other adults members of the family. PW 3 did not even states in his statement that the contraband drugs were seized from the possession of the appellant/accused Smti. Suman Deb but what he stated in his statement was that the contraband drugs were seized from a room which was jointly occupied by the appellant/accused Smti. Suman Deb, and two other adults members of the family. PW 3 did not mention the names of the two other persons of the locality who were present at the time of recovery of the contraband drugs from the house of the appellant/accused Smti. Suman Deb.
12. PW 4 Shri. Donnio Kharkrang stated that on 28.04.2010 at about 5:30 to 6:00 PM, Rangbah Dong called and asked him to be a witness of such search and recovery in his locality. Accordingly, he went to the place of occurrence where the search was to be conducted and found the police were waiting outside the room of the appellant/accused Smti. Suman Deb, as the room was under lock and key. In his presence, the appellant/accused Smti. Suman Deb informed the police that the key was with her sister, so they are waiting for her sister. When her sister did not come after a considerable time, the police in their presence broke open the lock of the room and conducted search and recovered two cartons box containing certain medicines which police identified as drugs. The police drew the samples and thereafter packed and sealed all the packets in their presence Page 9 of 21 and he also put his signature on it. He also stated that Mt. Exts. 1 & 2 are the master packets containing drugs and Mt. Exts. 1/2 and 2/2 respectively are his signatures. In his cross examination, he stated that he has no personal knowledge as to whether the room from where the contraband items were recovered was rented out to the appellant/accused Smti. Suman Deb or not, but he only came to know from the house owner that the room was rented out to the appellant/accused Smti. Suman Deb and the key of the room at that point of time was with the sister of the appellant/accused Smti. Suman Deb. From the statement of PW 4, it is clear that he has no personal knowledge as to whether the room from where the contraband items were recovered was rented out to the appellant/accused Smti. Suman Deb or not; thus, he has no knowledge as to the possession of the said contraband items by the appellant/accused Smti. Suman Deb and as such, he cannot state that the contraband items were recovered from the possession of the appellant/accused Smti. Suman Deb.
13. PW 8 Shri. Newson Richard Pyngrope stated that he is the husband of Smti. Diamond Lawai, who is the resident of Rynjah Lapalang having his own house. On 28.04.2010, he was in his house and saw police entering their compound and then he asked them the reason for coming and the police informed him that one of his tenants i.e. the appellant/accused Smti. Suman Deb was involved in selling drugs. Thereafter, the Headman, Secretary and Rangbah Dong of his locality were called to his house and they went to the rented portion of the house. On checking the house, they found a carton box in which the drugs were kept in the room of that house rented out to the appellant/accused Smti. Suman Deb. The police personnel had seized the said drugs and he signed in the seizure list i.e. Ext. 5 and Ext. 5/3 is his signature. Ext. 5 was written in their presence. Mt. Ext. 1 is the carton where he had put his signature. In his cross examination, he stated Page 10 of 21 that he never issued any rent receipt to his tenants. He also stated the appellant/accused Smti. Suman Deb, along with some people had stayed there. A portion of the house was given on rent to a lady who was staying together with the appellant/accused Smti. Suman Deb but he could not recollect the name of that person. He also stated that at the time when they went to the house of the appellant/accused Smti. Suman Deb that lady to whom he and his wife had given the house on rent was not present. So according to the statement of PW 8, he does not know the name of the lady to whom the room from where contraband items were recovered was rented out. He also clearly stated that the room was occupied by the appellant/accused Smti. Suman Deb, and two other family members. Therefore, it is clear from the statement of PW 8 that the room from where the contraband items were recovered was not in the exclusive possession of the appellant/accused Smti. Suman Deb. But according to PW 8, the room was jointly occupied by the appellant/accused Smti. Suman Deb, and some other persons. As such, according to PW 8, the contraband items were not recovered from the exclusive possession of the appellant/accused Smti. Suman Deb but were recovered from the rented house/room which was jointly occupied by the appellant/accused Smti. Suman Deb, and some other persons.
14. PW 9 Shri. K Shabong, stated that he was serving as S.I. of Police, Meghalaya and attached to Additional Deputy Superintendent of Police (Crime) Shri. Vivek Syiem (PW 7). On 28.04.2010, he accompanied the Additional Deputy Superintendent of Police (Crime) (PW 7) to Rynjah in connection with the present case. On reaching Rynjah, they went to the house of the appellant/accused Smti. Suman Deb and found the O/C of Rynjah P.S. along with his staff were outside the house of the appellant/accused Smti. Suman Deb as the house of the appellant/accused Page 11 of 21 Smti. Suman Deb was found under lock and key. The Additional Deputy Superintendent of Police (Crime) (PW 7) searched for the Headman and house owner, and they came very soon; in their presence, lock was broke open. On such search, police party found two cartons one which contains SPASMO PROXYVON capsules and other cartons contain NITROZEPAM tablets. But he stated that he was told by the Additional Superintendent of Police (Crime) (PW 7) that the said carton box was found from beneath the bed which was in that room. The house they entered was occupied by the appellant/accused Smti. Suman Deb and her sister. According, to the statement of PW 9, he had no direct knowledge from where the said carton box was found but he was only told by the Additional Superintendent of Police (Crime) (PW 7) that the said carton box was found from beneath the bed in the room jointly occupied by the appellant/accused Smti. Suman Deb and her sister. In his cross examination, he also stated that he cannot say that the said house was rented out to the sister of the appellant/accused Smti. Suman Deb and not to the appellant/accused Smti. Suman Deb.
15. PW 7 Shri. Vivek Syiem stated that on 28.04.2010, while he was functioning as Deputy Superintendent of Police (Crime), a written information was received from the O/c Rynjah P.S. Inspector J.S. Kharsati (PW 6) that two persons had been apprehended by the CRPF personnel while one of those two persons was selling suspected narcotic drugs. In the said report, the In-charge had also reflected that the appellant/accused Smti. Suman Deb was involved in such dealings with narcotic drugs and on the prayer of the In-charge to grant authorization for conducting a search in the house of the appellant/accused Smti. Suman Deb at Lapalang, he granted the authorization to S.I. Subir Sangma (PW 10). PW 7 in his examination-in- chief he did not mention anything about the house search of the appellant/accused Smti. Suman Deb, except the seizure memo of the Page 12 of 21 contraband items which was signed at the spot. In his cross examination, he stated that he went to the house of the appellant/accused Smti. Suman Deb only on the receipt of the information from the search party who had proceeded earlier, that on search of the house Mt. Exts. were recovered. Therefore, PW 7 was not present at the time of house search of the appellant/accused Smti. Suman Deb and he had no knowledge as to whether the contraband items were seized from the possession of the appellant/accused Smti. Suman Deb or not.
16. PW 10 Shri. Subir Sangma stated that at about 4:00 PM, Inspector H.S. Rana (PW 2) produced the appellant/accused Smti. Suman Deb and Shri. Ruby Rymbai along with a box of SPASMO PROXYVON at Rynjah P.S. At that time, the O/C had went for his lunch and he being the 2nd in-charge seized the box of SPASMO PROXYVON and informed the O/C over his mobile phone, the box was seized from Inspector H.S. Rana (PW 2), who produced the same at the P.S. In the meanwhile, the O/C instructed him over mobile phone to go and locate the house of the main suspect Smti. Suman Deb (appellant/accused) and that he will come later along with the authorization letter. Thereafter, he proceeded with one WPSI H.P. Lyttan on leading of the appellant/accused Smti. Suman Deb. On reaching the house of the appellant/accused Smti. Suman Deb, they contacted the house owner Smti. Diamond Lawai, who identified the appellant/accused Smti. Suman Deb as their tenants. He then called the Headman, Secretary of the locality namely, Shri. Dino Mawthoh (PW 3) and Donnio Kharkrang (PW 4) to be present at the place of occurrence and they immediately came. In the meanwhile, the O/C J.S. Kharsati (PW 6) reached the place of occurrence along with the authorization letter. As the house was found under lock and key, they asked the key from the appellant/accused Smti. Suman Deb, who stated that it was with her sister Sadhana Deb who was not present at that Page 13 of 21 time. So in presence of the house owner, Headman, Secretary of the locality and also the appellant/accused Smti. Suman Deb, the lock of the house was open and they asked the appellant/accused Smti. Suman Deb to show them the room, which was then searched in presence of all witnesses and from underneath the bed of the appellant/accused Smti. Suman Deb, they recovered two cartons box. On opening of the cartons box, one box containing 35 packets of SPASMO PROXYVON which contained 18 x 8 capsules in one packet and 14 strips containing 8 capsules and on counting of the drugs in the carton box, they found altogether 5152 capsules. The other carton box they found NITROZEPAM tablets totaling 1869 tablets. They informed the matter to the Deputy Superintendent of Police (Crime) (PW 7). He then seized both the cartons box and examined the witnesses. The Deputy Superintendent of Police (Crime) (PW 7) also reached the spot along with Anti Narcotic Task Force team and videographer. A Panchanama was prepared by the Deputy Superintendent of Police (Crime) (PW 7) and the packing and sealing was done in the presence of the witnesses which was videograph. Thereafter, they went back to the Rynjah P.S. along with the seized items and also with the appellant/accused Smti. Suman Deb. On reaching Rynjah P.S., he handed over the seized items to the O/C under Section 55 of the NDPS Act to his custody. PW 10 in his cross examination, he stated that the name of the sister of the appellant/accused who was residing with her (appellant/accused Smti. Suman Deb) is Sadhana Deb and the said house was rented out to Sadhana Deb sister of the appellant/accused Smti. Suman Deb. The appellant/accused Smti. Suman Deb, is staying with her sister in that house.
17. From the statements of the PWs, it is clear that the room from where the Mt. Exts. were recovered was occupied by the appellant/accused Smti. Suman Deb, and other family members. None of the witnesses stated Page 14 of 21 as to how many beds were in the said room where the appellant/accused Smti. Suman Deb and others were residing. The prosecution also utterly failed to prove that the Mt. Exts. i.e. contraband items were recovered from the exclusive possession of the appellant/accused Smti. Suman Deb. The Apex Court in Avtar Singh & Ors v. State of Punjab: (2002) 7 SCC 419 held that it is not proper to raise a presumption under Section 114 of the Evidence Act nor it is safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. According to the prosecution case, the appellants and two others were travelling in a truck belonging to accused No.5. The vehicle was checked at about 1:30 AM by PW 2. The vehicle was carrying 16 bags of poppy husk. Appellant No.3 was driving the vehicle. Appellants No.1 & 2 were sitting on the bags placed in the truck. Possession is the core ingredient to be established before the accused in the case are subjected to the punishment under Section 15 of the NDPS Act. If the accused are found to be in possession of poppy husk, it is for them to account for such possession satisfactorily. The persons, who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in a possession of the goods. Para 6 of the SCC in Avtar Singh's case (Supra) read as follows:-
"6. Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking a cue from the decision of this Court in Inder Sain v. State of Punjab: (1973) 2 SCC 372: 1973 SCC (Cri) 813 arising under the Opium Act, the learned trial judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were Page 15 of 21 in possession of poppy husk. Accepting the evidence of PW 4, the Head Constable, it is seen that the appellant 3 (accused 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word "possession" no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants - one of whom was driving the vehicle and the other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from the evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. The persons who were mere sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods.
***** ***** ***** ***** In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor it is safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. ................."
18. The Apex Court in Om Prakash alias Baba v. State of Rajasthan: (2009) 10 SCC 632 held that in the absence of evidence to show that the house from where the psychotropic substance was recovered was in the exclusive possession of the accused, the psychotropic substance cannot be said to be in the exclusive possession of the accused. Hence, the appellant/accused is to be acquitted. Paras 11, 12, & 13 of the SCC in Om Prakash's case (Supra) read as follows:-
"11. A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the Page 16 of 21 place of recovery is uncertain. As a matter of fact PW 3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show that the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein.
12. Admittedly, there is no evidence as to the appellant's exclusive possession. In this situation we find that the judgment cited by the learned counsel, that is, Mohd. A. Khan case:
(1996) 9 SCC 462: 1996 SCC (Cri) 1062: AIR 1996 SC 3033 fully supports the plea on behalf of the appellant. We observe that in addition to the ocular evidence, the prosecution had also put on record a document pertaining to the ownership of the house but this Court nevertheless held as under: (Mohd. Aslam Khan case: (1996) 9 SCC 462: 1996 SCC (Cri) 1062: AIR 1996 SC 3033, SCC p.465, para 9) "9. ..... The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by producing documents from the Registrar's office concerned or by examining the neighbours. No statement has been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the panchnama. Only one of them was examined as PW 5 who did not support the prosecution version and therefore was treated as hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Single Judge extracted in the beginning and confirmed by the High Court."
To our mind, the aforequoted observations clearly support Mr. Bhati's argument. We find that there is no evidence on record to prove the appellant's ownership and possession of the premises and the contraband in question.
13. The appeal is accordingly allowed, the judgments of the courts below are set aside and the appellant acquitted. He is said to be in custody. He is directed to be released forthwith."
19. The Apex Court in State of Punjab v. Malkiat Singh: (2009) 12 SCC 303 held that the prosecution has to prove that the room from where Page 17 of 21 the contraband goods were recovered exclusively belongs to the accused. Paras 3, 4, 5, 6, 7 & 8 of the SCC in Malkiat Singh's case (Supra) read as follows:-
"3. The stand of the prosecution was that the room in question was leased out to the present respondent for the purpose of storing the contraband articles. That lease deed, if any, was not even brought on record. If the narcotics have been recovered from the room belonging to Pritam Singh he was not prosecuted. There was nothing to show that the accused was having possession over the room in question. Question in that regard was put to him. With these conclusions the High Court directed acquittal.
4. The High Court was of the view that in a case of such serious nature, the investigating agency was not very serious in conducting the investigation. It noted with concern that drug peddlers who are corroding the health of the nation are allowed to go scot-free because of the ineffective investigation and for not collecting evidence to secure their conviction.
5. Learned counsel for the appellant State submitted that the presence of the respondent near the spot of occurrence had been established and therefore it can be safely said that he was connected with the storage of the contraband articles.
6. In response, the learned counsel for the respondent submitted that even no question was put to the accused in his examination under Section 313 of the Code whether he was in possession or control of the room from where the contraband articles were recovered.
7. We find that the High Court has noted with concern the shoddy investigation which was done. There was no reason indicated as to why Pritam Singh was not examined and why during investigation copy of the lease deed, showing the room to have been leased out to the respondent-accused, was (sic not) obtained from Pritam Singh, if that was there. There is no reason as to why the same was not brought on record.
8. Additionally, no evidence was adduced to show the possession of the room by the respondent who was admittedly not the owner of the room. In addition, as is rightly contended by the learned counsel for the respondent, no question regarding the possession of the room in question was put which added to the vulnerability of the prosecution version."
20. The Apex Court in State of Punjab v. Balbir Singh: (1994) 3 SCC 299 held that it is mandatory on the part of the police officer on receiving an information, should reduce the same in writing and also record reasons for the belief while carrying out arrest or search as provided under Page 18 of 21 the proviso to Section 42(1) of the NDPS Act. To that extent they are mandatory. Consequently, the failure to comply with these requirements affects the prosecution case and therefore vitiates the trial. Para 15 of the SCC in Balbir Singh's case (Supra) read as follows:-
"15. In K.L. Subhayya v. State of Karnataka: (1979) 2 SCC 115: 1979 SCC (Cri) 367: AIR 1979 SC 711 this Court considering the scope of Section 54 in the Mysore Excise Act whereunder the officer was required to "record the grounds of his belief' and the failure to do so was held to be rendering the entire search without jurisdiction and thus vitiated the conviction. Commenting on the failure to do so, it was observed as under: (SCC p. 117, para 4) "This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment."
The very fact that sub-section (2) of Section 42 requires that where an Officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior, itself is a strong indication of the mandate that the officer should record his reasons for his belief as required under the proviso and also that the information received should be reduced to writing so that it can be verified whether there were sufficient reasons for belief. In Presidential Election 1974: (1974) 2 SCC 33: AIR 1974 SC 1682, Re, this Court observed as under: (SCC p. 49, para 13) "In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the Legislature by carefully attending the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole*." (See Brett v. Brett, (1826) 3 Addams 210, 216) In Govind Lal Chaggan Lal Patel v. Agriculture Produce Market Committee: (1975) 2 SCC 482: AIR 1976 SC 263 it was observed thus: (SCC pp. 487-488, para 13) "Thus, the governing factor is the meaning and intent of the Legislature, which should be gathered not merely Page 19 of 21 from the words used by the Legislature but from a variety of other circumstances and considerations. In other words, the use of the word 'shall' or 'may' is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the Legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature."
The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial."
In the present case, the prosecution had utterly failed to prove that the said mandatory requirement under Section 42(2) had been complied with.
21. For the foregoing discussion, we are of the considered view that the prosecution had utterly failed to prove its case. Accordingly, the judgment and order of the learned Special Judge (NDPS), Shillong dated 06.06.2014 and order of sentence dated 13.06.2014 are hereby set aside. Consequently, the appellant/accused Smti. Suman Deb is acquitted of all the charges leveled against her. She shall thus be set at liberty forthwith. Page 20 of 21
22. The Registry is directed to send a copy of this judgment and order to the learned Special Judge (NDPS), Shillong.
23. In the result, the appeal is allowed.
JUDGE CHIEF JUSTICE
Lam
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