Gauhati High Court
Sachin Ch. Deka vs The State Of Assam on 28 June, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal (J) No. 73 of 2015
Sachin Ch. Deka.
----- Accused/Appellant
- VERSUS -
State of Assam.
----- Respondent.
BEFORE
Hon'ble Mr. Justice Hitesh Kumar Sarma
Advocate for the appellant : Ms. Purnima Baruah Bordoloi, Amicus Curiae.
Advocate for Respondent : Mr. NJ Dutta, Addl. Public Prosecutor, Assam.
Date of hearing and Judgment & Order :: 28th of June, 2017.
JUDGMENT & ORDER
(ORAL)
This is an appeal from jail, preferred by accused/appellant, Sachin Ch. Deka, who has been convicted by judgment and order, dated 27- 02-2014, passed by the learned Special Judge, Darrang, Mangaldai, in Special (N) Case No. 5/2014, under Sections 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as 'the NDPS Act'), to suffer rigorous imprisonment for 10 (ten) years and pay a fine of Rs. 1,00,000/-, in default, to suffer imprisonment for further period of six months.
2. I have heard Ms. Purnima Baruah Bordoloi, learned Amicus Curiae, appearing on behalf of accused-appellant, and Mr. NJ Dutta, learned Additional Public Prosecutor, Assam.
Crl. A. (J) No. 73 of 2015 Page 1 of 93. The prosecution case is that, the informant, Ashima Bhuyan, Inspector of Excise, Sipajhar Circle, received a telephonic message from Dumoni Chowki, under Sipajhar Police Station, on 11-12-2013, at about 11.00 p.m. She immediately attended the place of occurrence and found there an Alto Car, bearing registration No. AS-01-AK-1693. The accused- appellant was the registered owner of the said vehicle. He was apprehended with 28 kgs of Cannabis (Ganja). He was arrested for commission of offence under Section 20(b)(ii)(c) of the NDPS Act. The accused-appellant, apart from being the registered owner, was also the driver of the vehicle. The Ext. 4, FIR, was addressed to the District and Sessions Judge, Darrang, Mangaldai, by the informant. (This is as per record).
4. On appearance of the accused-appellant before the learned Special Judge (Sessions Judge), Darrang, Mangaldai, charge under Section 20(b)(ii)(c) of the NDPS Act was framed against him, to which he pleaded innocence.
5. During the course of trial, the prosecution examined as many as five witnesses and the defence examined one witness.
6. PW1, Khatibuddin Ahmed, is an Assistant Inspector of Excise. His evidence is that on 11-12-2013, on receipt of information regarding possession of contraband, they proceeded to the place called Dumni Chowki, at about 11.00 p.m. and found a Maruti Car by the side of NH52, in damaged condition, as the said car met with an accident. The accused was found sitting inside the car and in the rare seat of the car, they found a bag containing ganja like substance. Then, the Inspector of Excise, Ashima Bhuyan seized the said suspected contraband and prepared the seizure list, Ext.1, wherein he is a witness, vide his signature marked as Ext.1(1). In his cross-examination, he is found to have stated that on their arrival, they found the accused-appellant sitting in a Crl. A. (J) No. 73 of 2015 Page 2 of 9 driver's seat and that they did not see any other passenger in the car. They were told by the accused-appellant that two persons hired the car and they loaded the seized contraband. Admittedly, they did not make any effort to apprehend the said two passengers, said to have travelled in the said car.
7. The PW2, Idrish Ali, is another witness to the seizure. This witness came to the place of occurrence, after hearing a sound on the high way, and found a damaged car standing by the side of NH52, which was hit by another car and left. There, he also saw the Excise Department personnel bringing out a big polythene bag from the said vehicle and he was witness to the seizure by putting his thumb impression. He had seen ganja in the bag.
8. PW3, Khasnur Ali, is also a witness to the seizure. He is found to have deposed that, while coming home, riding a bicycle, near Khara bridge he found the Alto Car standing by the side of NH52 and some people were there from before. He stopped there. The people gathered there informed him that two passengers of the Alto Car standing by the side of the NH52 had already fled and the accused-appellant was detained by public, whom he identified in the Court. He informed police as well as Excise Department about the incident over phone. The Excise officials arrived at the place of occurrence and found some bags wrapped with clothes, which were seized in his presence. He was witness to the seizure, vide his signature, marked Ext. 1(2). In his cross- examination he said that the accused-appellant was the driver of the said car.
9. PW4, Ashima Bhuyan, Inspector of Excise, is the informant of the case. Her evidence is that, on 11-12-2013, she found the accused- appellant at a place called Saraikash, at about 9.00/10.00 p.m. and found him possessing ganja. The accused-appellant was sitting in the Crl. A. (J) No. 73 of 2015 Page 3 of 9 driver's seat. There was no other passenger in the car. She lodged the offence report against the accused-appellant, vide Ext.2. She found 28 kgs of suspected ganja in the car and seized the same, vide Ext. 1. She found 28 kgs of Bhutia ganja. She also obtained the chemical analysis report from the Forensic Science Laboratory, Kahilipara, Guwahati, in respect of the seized suspected ganja.
10. PW4, Sri Rokheswar Bora, is the chemical Analyst of the Government of Assam. He had received the sample from Inspector of Excise, Sipajhar, vide letter No. DEX(SIP)6/2013-14 dated 16-12-2013. The sample contains stalks, leaves and fruiting tops of ganja. On chemical examination, he found the same to be cannabis indica and it tested positive for rasin cannabis indica. Ext. 5 is the report of the Analyst. Ext. 5(1) is his signature. In his cross-examination, he is found to have stated that the sample was directly sent to him by the Excise Inspector.
11. It appears from the above evidence of the witnesses that suspected ganja (cannabis), in the instant case, was seized from the Alto Car, which was owned and driven by the accused-appellant. PW4 is found to have deposed that on examination of the sample of the seized ganja, he found the same tested positive for rasin cannabis indica.
12. Now, let us see whether the said contraband was found and seized from the possession of the accused-appellant.
13. The provisions of Sections 42 and 43 of the Narcotic Drugs and Psychotropic Substance Act provide for the power of entry, search, seizure and arrest without warrant or authorization. For the sake of clarity, Sections 42 and 43 are extracted below:
"42. Power of entry, search, seizure and arrest without warrant or authorisation. Crl. A. (J) No. 73 of 2015 Page 4 of 9 (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 intellegence 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
(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 Crl. A. (J) No. 73 of 2015 Page 5 of 9 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.] Section 43 in The Narcotic Drugs and Psychotropic Substances Act, 1985
43. Power of seizure and arrest in public place.Any officer of any of the departments mentioned in section 42 may
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
14. On reading of the provisions of Section 42 of the Act, it appears that only the officers mentioned therein and empowered in that behalf, can make search, seizure and arrest, provided they have reasons to believe, from personal knowledge or information, about the commission of an offence under the Act, after reducing the information into writing. As per the provisions of Section 42, the officer of the Excise Department is competent to search and seize. Section 43 of the Act Crl. A. (J) No. 73 of 2015 Page 6 of 9 provides for seizure and arrest in public place by the officers enumerated in Section 42 of the Act.
15. The informant, in the instant case, is the Excise Inspector and is an officer enumerated in Section 42 of the Act. Therefore, she is competent to make the search and seizure.
16. In the instant case, the car from which the contraband was allegedly seized was standing by the side of the NH52. There is no dispute that National Highway is a public place. Therefore, in respect of search and seizure, in the instant case, provisions of Section 43 of the Act is applicable.
17. The Hon'ble Supreme Court in the case of Karnail Singh -vs- State of Haryana, reported in (2009) 8 SCC 539, at paragraph 26, observed as follows:
12) The material difference between the provisions of Sections 42 and 43 is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.
18. So, it appears that Section 43, does not require recording of reasons for belief and for taking down the information received in writing before conducting search and seizure.
19. However, as required by the provisions of Section 50 of the Act, the person searched has to be taken to a Gazetted Officer or a Magistrate, if such person requires, without unnecessary delay. The accused-appellant, in the instant case, searched by the informant, who is a Gazetted Officer, but the accused-appellant was not informed about Crl. A. (J) No. 73 of 2015 Page 7 of 9 his right to be searched in presence of a Magistrate, therefore, Section 50 of the NDPS Act has been violated in this case.
20. That apart, there is no instance in the evidence on records that Section 57 of the Act is complied with. After the seizure was made and the accused-appellant was arrested, arresting officer is mandatorily required to make a full report of all particulars of arrest or seizure to his immediate superior. There is even no whisper of compliance of this provision in the evidence, led by the prosecution. In the absence of any evidence, as aforesaid, Section 57 of the NDPS Act has not been complied with in this case.
21. There is also no evidence on record at all to show that the sample was collected from the suspected contraband, in presence of the accused-appellant and the witnesses, and also about the quantum of sample sent for chemical examination. There is also no evidence as to where the sample was taken. There is even no evidence led by the prosecution, particularly, the informant, Ashima Bhuya, who is also the officer making the seizure and search of the accused-appellant, to show that she had taken sample of the contraband. It is a fact that PW4 stated that he received the sample of the contraband containing stalks and leaves and fruiting tops of ganja from the informant, yet there is no evidence at all that the sample examined by him, was the sample of contraband, seized from the possession of the accused-appellant.
22. On the other hand, although the informant, in her evidence, categorically stated that 28 kgs of Bhutiya Ganja was seized, yet there is no instance on the record to show that it was weighed, and if weighed, where and in whose presence. No evidence at all was led to that effect.
23. In the absence of any evidence, on the above aspects, the fact of the search, seizure and sending of sample from the allegedly seized Crl. A. (J) No. 73 of 2015 Page 8 of 9 contraband cannot be said to have been proved, although the prosecution is statutorily bound to prove the same.
24. In view of such evidence on record, as discussed above, in the considered view of this Court, the prosecution has failed to prove the accusations levelled against the accused-appellant, and therefore, he is entitled to be acquitted.
25. In view of the above, the judgment and order, convicting and sentencing the accused-appellant, as aforesaid, is set aside. The accused- appellant is acquitted.
26. Accordingly, the appeal is allowed.
27. The accused-appellant be released forthwith.
28. Send down the LCR with a copy of the judgment.
29. Send a copy of this judgment to the Superintendent of Jail, Mangaldai, who will furnish a copy of the same to the accused- appellant.
30. This Court records its appreciation for the assistance rendered by learned Amicus Curiae, Ms. Purnima Baruah Bordoloi. Learned Amicus Curiae be paid an amount of Rs. 7,000/-, as remuneration.
JUDGE Paul Crl. A. (J) No. 73 of 2015 Page 9 of 9