Gauhati High Court
Mohammed Rafi Kn And 2 Ors vs State Of Assam And Anr on 11 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 126
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010143102018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 325/2018
1:MOHAMMED RAFI KN AND 2 ORS
S/O LATE NOOR MOHAMMED MK, R/O 4/7 SEMMALAI STREET, PS
RASIPURAM, DIST NAMAKKAL(TAMIL NADU)
2: H. FAZZALU AHMED
S/O HASSAN MUGAMMADU
R/O 6 KUMARASAMI ST
PS RASIPURAM
DIST NAMAKKAL(TAMIL NADU)
3: A.S BAKRUDDIN
S/O A SIRAJDEEN
R/O 20 SALAM MAIN ROAD
PS RASIPURAM
DIST NAMAKKAL(TAMIL NADU
VERSUS
1:STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:BINOY KALITA
S/O- LATE. GAURI KALITA
R/O- BELTOLA
P.S.- BASISTHA
DIST- KAMRUP(M)
GUWAHATI-29.
OFFICE ADDRESS- OFFICE OF THE DIRECTOR
BI(EO)
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ASSAM
Advocate for the appellants : Ms. S.K. Nargis,
Ms. N. Das and
Ms. B. Hazarika.
Advocate for the respondent: Mr. M.P. Goswami, Addl. P.P., Assam.
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing: 07.03.2019 & 26.03.2019.
Date of judgment: 11.04.2019
JUDGEMENT AND ORDER (CAV)
Heard Ms. S.K. Nargis, learned counsel appearing for and on behalf of the appellants as well as Mr. M.P. Goswami, learned Addl. P.P., Assam representing the State respondent.
2. This appeal is directed against the judgment and order dated 26.04.2018, passed by the learned Special Judge (NDPS), Kamrup (M) at Guwahati in NDPS Case No.44/2016, convicting the appellants under Section 8(c)/22(c) of the NDPS Act, sentencing the accused/appellants to undergo rigorous imprisonment for 10 (ten) years with fine of Rs.1,00,000/- (Rupees one lakh) each, in default of payment of the fine, further rigorous imprisonment for six months.
3. The case of the prosecution in brief is that, on 07.08.2016 at about 8:00 pm, a source information was received regarding illegal transportation of a consignment of Phensedyl cough syrup, by a Truck bearing Regn. No.TN-52-B/2133, from West Bengal towards Agartala via Guwahati through N.H. 31. Accordingly, on the same day at about 8:30 P.M., the informant Binay Kalita, along with a team of BI(EO) officers and staff proceeded to N.H.31. At about 11 P.M the said truck was intercepted at Betkuchi, in front of Sankar Dhaba & Restaurant. The accused persons named above were the drivers and the handyman of the said vehicle. On spot interrogation, the accused persons Page No.# 3/10 confessed that some contraband items were in the vehicle along with other articles. The vehicle was then brought to BI(EO) campus due to insufficient labour to unload the vehicle at night and loading and unloading on national highway would cause inconvenience in movement of other vehicle. On 08.08.2016, search was conducted in the said vehicle and 50 nos. of plastic bags were detected, having 3 cartoons in each bag and 100 nos. of plastic bottles in each cartoon. Each bottle contains 100 ml Phensedyl having 10 mg Codeine phosphate in each bottle. Subsequently, a total 15,000 plastic bottles of contraband Phensedyl had been seized as per seizure list from the possession of the accused persons named above along with the vehicle and other articles. Samples were duly drawn from the seized phensedyl for FSL examination and further inventory was also prepared in presence of Executive Magistrate, Kamrup (M), Guwahati.
4. On the basis of the written F.I.R (Ext.8), submitted by Inspector Binay Kalita and BI(EO) Case No.1220/16 was registered u/s. 22 (c) of the NDPS Act and investigation was taken up. The accused persons were arrested and after a brief period of police remand, they were sent to judicial custody. The collected samples were sent to the Directorate of Forensic Science, Kahilipara for chemical examination. After collecting the Forensic report, as the sample gave positive test for Codeine, the I.O. submitted charge sheet against the accused persons u/s.22(c) of the NDPS Act and was sent for the trial.
5. The accused persons were tried as Under Trial Prisoner. Copies of the relevant documents were furnished to the accused persons, in compliance to the provisions of Section 207 CrPC. After hearing both sides charge u/s 22(c) of the NDPS Act was framed against the accused persons. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be Page No.# 4/10 tried.
6. During the trial, to bring home the charge, the prosecution examined as many as 12 witnesses and also exhibited 17 documents. The defence examined no evidence on their behalf. The defence plea was of complete denial and the statement of the accused persons was recorded u/s 313 of the Cr.P.C. 7 I have heard the argument of Ms. S.K. Nargis, learned counsel for the accused/appellants as well as Mr. M.P. Goswami, the learned Addl. P.P., Assam, representing the State respondents. I have also carefully gone through the case record.
8. Ms. Nargis, learned counsel for the appellants assailing the legality and validity of the impugned judgment and order has contended that the case is bad for violation of various provisions of law under the NDPS Act. According to the learned counsel, while making the search and seizure, the prosecution has failed to ensure the compliance of the mandatory requirements u/s.42, 52A, 55 and 57 of the NDPS Act and seized article are not produced before the trial Court. There are material contradiction between the witnesses and the prosecution story is not supported by the independent witnesses. It is her submission that non-compliance of the mandatory provision in letter and spirit in affecting search from the appellants being a serious infirmity in the case of prosecution, the appellants conviction deserves to be set aside.
9. In support of her contention, the learned counsel for the appellants has urged before this Court that although one of the witness Prafulla Barman has stated to have received the secret information, which was reduced to writing in the form of G.D. Entry but there is nothing to show that the same information was communicated to the superior authority. Similarly the correctness of the inventory prepared u/s.52A was not certified by the Magistrate/the witnesses that were examined by the prosecution, neither the Malkhana Register was produced to show that the seized article was kept in Page No.# 5/10 safe custody as per the requirement u/s.55 of the Act nor the report of seizure was made to the higher authority in terms of Section 57 of the Act.
10. In support of her contention, the learned counsel of the appellants has relied upon the following decisions:
(1) (2003) AIR SCW 4865, Jitendra Vs. State of Madhya Pradesh (2) (2005) 3 SCC 59 State of Rajasthan Vs. Gurmail Singh (3) ((2008) 2 SCC 370 Directorate of Revenue and Anr. Vs. Mohammed Nisar Holia. (4) (2008) 5 SCC 161 E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau (5) (2009) 8 SCC 539 Karnail Singh Vs. State of Haryana (6) (2010) 4 SCC 445 Bahadur Singh Vs. State of Haryana (7) (2013) 2 SCC 212, Sukhdev Singh Vs. State of Haryana (8) (2015) 6 SCC 222 Mohan Lal Vs. State of Rajasthan. (9) (2016) 14 SCC 358 Darshan Singh Vs. State of Haryana. (10) (2017) 8 SCC 162 Hira Singh and Another Vs. Union of India and Another.
11. Per contra, the learned counsel for the State respondent supporting the impugned judgment and order, urged before the Court that no ground is made out to interfere in the impugned order. It was his submission that the learned Court has elaborately dealt with the issues under challenge both in facts and in law and has rightly convicted the accused persons which call for no interference.
12. Referring to the decision of and (2010) 4 SCC 445 Bahadur Singh Vs. State of Haryana and (2016) 13 SCC 119 Jagat Singh Vs. State of Uttrakhand, it has been submitted by Mr. Goswami, Page No.# 6/10 learned Addl. PP that as the seizure was made at the public place on source information, the instant case will fall u/s 43 of the NDPS Act which authorized, empowered person to seize any drugs at any public place. Further it is submitted that as there was substantial compliance of Sec. 42 of NDPS Act and no prejudice was shown to have been caused to the accused on account of non-production of the communication of secret information to the higher authority, the prosecution case cannot be discarded. The GDE has been duly proved in the present case regarding the secret information and same was reduced to writing and on the basis of the said information PW-12 was empowered by the S.P concerned and it is not a case of non-compliance of the provision.
12. Having heard the argument of learned counsel for both the parties, this Court has also gone through the evidence on record and the impugned judgment.
13. So far as the evidence on record regarding the compliance of Section 42 of the Act, the said information was reduced to writing in the shape of G.D. Entry vide Ext.14 with detail number of the vehicle and the basis of the aforesaid information, the authority letter was issued vide Ext.15 on the same very day by the Superintend of Police, BIEO and immediately thereafter a team of officers were formed who went in search of the vehicle which has again entered into the GD Entry vide Ext.16. This aspect has been proved by the evidence on record i.e. PW.4, PW.5, PW.8, PW.11 and PW.12. Those witnesses were the officers in the team who went in search of the vehicle, on the basis of source information. Their oral evidence coupled with the documentary evidence as indicated above have sufficiently made out that the officers proceeded on the basis of source information which was reduced to writing in the form of GD Entry. Although specific communication to the higher authority is not produced but from the issuance of the authorization letter itself reveals that he has issued such authorization letter basing on the GD Entry, (which can be stated as the source information). In such backdrop, it can be held that there is sufficient compliance of Section 42 of the Act.
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14. On the next, the aforesaid official witnesses have in elaborate manner stated about their arrival at the place of occurrence and detection of the vehicle along with the accused persons as per the source information and recorded contraband i.e. 15000 bottles of Phensedyl Cough Syrup. All the witnesses have stated about seizure of those vehicle, documents and the contraband from the possession of the accused/ appellants. The PW.12, who made the search and seizure of the vehicle has specifically stated that he seized the 12 wheeler truck through Ext.5 and the documents from the possession of the driver of the vehicle through Ext.7. He also prepared the inventory in detail describing all about the sealing of those articles, drawing of sample with seal and signature in presence of witness and the Executive Magistrate. The PW.7 who was the Circle Officer cum Executive Magistrate has testified about the preparation of inventory/Ext.4 and the seizure list vide Ext.5, in his presence. He has also stated that he put his signature in the inventory to prove the correctness of the same. Although the defence tried to impress upon the fact that as there was no separate certificate given by the officer, so such document is not proper but the oral evidence of the said witness that he certified the correctness of the said document is sufficient to prove the authenticity of those documents. On careful examination of Ext.4 and Ext.5, it reveal that the officer/PW.12, who conducted the search has narrated all details in the Ext.4, regarding the amount of seized article and the sample taken. In Ext.5 also, details of search and seizure has been recorded and it bears the signature of witnesses as well as the signatures of the accused persons.
15. So far as the contention about non-compliance of 52A of the NDPS Act at the time of seizure, it is to be noted that aforesaid provision has intended to prepare a details of the article seized prior to destruction. The provision stipulates that where any article has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered u/s 53 of the NDPS Act, then such empowered officers shall prepare an inventory containing all details relating to their description, Page No.# 8/10 quality, quantity, mode of packing, marks, numbers or other to indentify the articles and such inventory is to be certified by the Magistrate about the correctness and also allowing to draw representative samples of drugs in presence of Magistrate. The proviso (4) of the Sec. 52 of the NDPS Act provides that every Court trying an offence under this Act, shall treat the inventory so prepared as a primary evidence in respect of such offence.
16. Bare reading of the provision would reveals that it is obligatory on the part of the seizing officer to prepare such inventory in terms of the provision and accused has nothing to do with it so as to put his signature in such inventory as he is not a witness to such procedure. The Ext-4, the inventory prepared by the officer contains all necessary details as indicated in the provision so as to identify the articles and also about the collection of sample. The Executive Magistrate cum Circle Officer has testified the correctness of the same in his evidence. Similarly, seizure list/Ext-5 also contains all details of the article including total Nos. of bottle seized, batch No., date of expiry which reveals that each bottle contained 100 ml where the codeine content is 10 mg. The sufficient compliance of Sec. 52A (2) of the Act is made out.
17. Evidence of PW-12 who seized the article, reveals that he deposited the seized articles on the very day of seizure i.e on 08.08.2016 and sample packet was kept in the Malkhana in-charge of the police station and thereafter sample was sent for FSL examination. The evidence of PW-2 and PW-3 reveals that sample was sent and received on 11.08.2016. The PW-3 FSL experty in his evidence has admitted about receipt of such sample consisting of 12 exhibit in a sealed cartoon with cover and facsimile seal was found proper and there was no any tamperment in the seal. He has given the opinion that each Exhibits contained 3 sealed bottles and an amount of codeine phosphate of 185.6 mg was found in each exhibit. From the totality of the evidence no any serious infirmity is reflected even though no duplicate sample was produced before the Court.
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19. The learned trial Court on the basis of the document available in the record has discussed that in terms of the destruction order passed in the case of Union of India Vs. Mohan Lal, the seized article was destroyed with due permission of the trial Court and the certificate of destruction was furnished to the Court signed by all the members of the destruction committee. Accordingly it was held that non- production of seized article in the given background is not fatal as has been contended by the defence side. Nothing appears about the deliberate violation of the provision of Sec. 55 of NDPS Act. Similarly, record also reveals that report of arrest and seizure was duly communicated to the Court which is sufficient compliance of Sec. 57 of the NDPS Act.
20. From the totality of the evidence, the learned trial was of opinion that there is sufficient compliance of the provision of the act and minor omission in evidence here and there is not destructive of the entire prosecution case. The omission of the part of PW-11 Prafulla Barman to speak about the GD Entry will not otherwise destroy the credibility of the ample evidence on record and about the investigation that has been carried out and the recovery from the possession of the accused person. Certain documents like driving licence, RC of the vehicle etc. recovered from the possession of the accused and they were found carrying such article in a concealed manner and apart from giving certain suggestion, defence failed to shaken the evidence on record.
21. The learned court has rightly appreciated the entire matters on record in proper perspective of law and facts and it calls for no interference.
22. The learned counsel for the appellant has submitted that going by the content of the seized article as per the evidence of the expert FSL if the same is calculated, the seized article will be less than the commercial quantity. The Addl. PP has also agreed to the submission. Relying upon the decision of the E. Micheal Raj Vs. Intelligence Officer Narcotic Control Bureau (2008) 5 SCC 161 followed by Hira Page No.# 10/10 Singh and another Vs. Union of India (2017) 8 SCC 162 it has been submitted that it is only the actual content by weight of the offending drugs which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. In Hira Singh the decision of the Micheal Raj stated to be binding till final decision by the larger bench.
23. Going by the decision referred above, on a proper calculation of the content of the drugs seized in this case, same is found to be less than commercial quantity and accused is liable to be convicted u/s 22(b) of the NDPS Act. Appeal is partly allowed. Accused are convicted u/s 22(b) of NDPS Act and sentenced to RI for 5 (five) years and sentenced to pay a fine of Rs. 50,000/- each, i.d RI for 3 (three) months. Return the LCR accordingly with a copy of judgment.
JUDGE Comparing Assistant