Gauhati High Court
Subhash Shah vs The Union Of India on 29 April, 2016
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Crl.Appeal 22/2008
Sri Subhash Shah
son of Biswanath Shah,
R/o Sasaram Road,
P.O. & P.S. -Vikramganj,
District - Rohtas, Bihar.
... Accused/Appellant
-Versus-
The Union of India
.... Respondent
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the appellant : Mr.B.D Konwar, Advocate For the respondent : Mr. S.C. Keyal, ASGI.
Date of hearing argument : 25.04.2016
Date of Judgment : 29.04.2016
JUDGMENT & ORDER (CAV)
The appeal has been preferred under Section 374 (2) of the Cr.P.C. challenging the legality and validity of the judgment and order dated 9.5.07 passed by the learned Special Judge, Sonitpur, Tezpur in NDPS Case No. 3/05 whereby appellant has been convicted and sentenced to RI for 15 years under Section 20 (b) (ii) (C) of the Narcotic and Psychotropic Substance Act, 1985 (in short NDPS) and to pay a fine of Rs. 1 lac in default RI for another 2 years.
2. The case of the prosecution, in short, is that on receipt of a specific secret information, the officials of Customs and Preventive Force, Tezpur led by P.C. Sarma, Inspector of Customs intercepted a night-super bus bearing registration No. NL - 01-B/0611 coming from Dimapur towards Barpeta via Tezpur at about 2 23.00 hrs on 9.3.05, conducted a checking in the aforesaid bus. The officials in course of such checking, found three numbers of cartoons seemed to have contained biscuits under brand name and style "M/s Nezone Biscuit (P) Ltd. as the wrappers belonged to the said manufacturer. But due to exorbitant weight of the cartoons, raising doubt of foul play, those packets were examined. Then it was revealed that it contained contraband ganja in the shape of cake, being packed in place of real biscuits. On enquiry made by the officials, two of the passengers of the vehicle, namely, Sri Bishnu Singh and Subhash Shah claimed that the cartoons contains Nezone biscuits and aforesaid articles belonged to them. The said articles were weighed and seized which weighed about 102.300 kgs found in total number of 275 packets. The actual packets of biscuits numbering 150 were found. The sample was drawn from the seized ganja which was subsequently sent to the FSL which gave positive test of cannabis (ganja). On completion of the investigation, the charge sheet was submitted against two accused persons, namely, Sri Bishnu Singh and Subhash Shah under Section 20
(b) (i) of the NDPS Act for committing offence under Section 8 (c) of the NDPS Act.
3. Both the accused persons faced the trial and the learned Spl. Judge framed the charge under Section 20 (b) (ii) (C) of the NDPS Act and it was explained to them to which they pleaded not guilty and claimed to be tried. Prosecution examined as many 9 witnesses in support of their case and defence examined none. On the conclusion of the trial, the learned Spl. Judge by the impugned judgment and order has convicted both the accused persons as aforesaid and the present appellant Subhash Shah is one of the accused. The present appeal has been preferred by one of the accused/appellant as referred above.
4. By way of this appeal it has been contended that conviction is bad in law as the prosecution has not been able to prove that the seized articles were recovered from the conscious possession of the appellant. The violation of Section 42 (2) of the NDPS Act is another ground of challenge whereby it has been contended that the prosecution has not produced the source of information that has been received by them and which was reduced to writing nor higher authority was informed. Regarding seizure, it has been assailed that same was not prepared at the place of occurrence and no independent was examined at 3 the time of seizure. Non-production of seized contraband drugs before the court is stated to be fatal. Further it has been contended that procedure of taking sample and making sealing etc. were not prepared as per procedure. Regarding the statement of the appellant produced by the prosecution, it is alleged that it was not voluntarily, so the reliance placed by the learned court while convicting the accused is bad in law.
5. For all the grounds above, it has been prayed to set aside the impugned judgment and order.
6. I have heard the learned counsel for both the parties. The submission of the learned counsel for the appellant confined to the grounds of appeal that have been incorporated in the Appeal Memo. Alternatively, the learned counsel for the appellant has submitted to consider the long detention period undergone by the appellant. In support of the contention so raised in the appeal that the non- production of seized drugs before the court is bad in law and the fact that there is no independent witness as regards seizure except the official personnel the learned court has relied upon the decision reported (2004) 10 SCC 562 (Jitendra and Anr. Vs. State of M .P.) and 2012 7 SCC 712 (Union of India Vs. M ohanlal and Anr .).
7. On the other hand, the learned counsel for the respondent has submitted that there is no any illegality or irregularity in the impugned judgment so as to interfere with the same and in view of recovery of drugs which is about 102.300 kgs is itself detrimental to the society as a whole, the conviction and sentence rendered by learned court below is adequate and proper. The appeal is liable to be dismissed while maintaining such judgment and order.
8. I have considered the rival contention of both the parties and gone through the evidence on record.
9. On the scrutiny of evidence on record, as we found the PW 1, Sri Bhupen Barman was the conductor of the vehicle (bus) on the day of occurrence and according to him, the Customs official intercepted the bus run by them and conducted a search. He has admitted that the two passengers of the bus, namely, Bishnu Singh and Subhash Shah who travelled in the same bus, admitted that the two bags of cartoons of biscuits which the customs officials 4 wanted to check belongs to them. He has also stated that on opening the said cartoons found some packets of biscuits and other packets of ganja along with those biscuits packets concealing below the layer of biscuit packets. Those articles found in the cartoons which were seized vide Ext. 1 in their presence weighed 102.300 kg. On the admission of those two passengers named above about the ownership of such articles they were arrested by the Customs officials. He was also present when the accused Bishnu Singh and Subhash Shah gave their statement vide Exts. 5 and 6. PW 1 happens to be present at the time of taking sample of the seized articles and he signed all the relevant documents.
10. On the next, the driver of the bus Sri Sanjoy Basumatary/PW 4 also gave similar statement as that of PW 2 and PW 1 as about checking of the vehicle by the Customs officials till recovery of contraband ganja in their vehicle who claimed to have carried the aforesaid cartoons in their bus. Both the PW 1 and 4 are witnesses to recovery of ganja from the conscious possession of the accused appellant as they claimed to have carried the same.
11. In his evidence Dr. Dhrubajyoti Hazarika (PW 8) has stated about the examination of the sample so sent to him in connection with this case and upon examination of the same he found the positive test of the sample for cannabis (ganja).
12. PW 9, Joydeep Acharjee is the Investigating Officer who has stated about the investigation so carried out by him and receipt of FSL report and thereafter he filed the charge sheet.
13. Further perusal of evidence on record it appears that on the fateful day, the custom officials led by PW 3 Sri Prahlad Ch. Sarma/Inspector of Customs accompanied by other officers of the Department i.e. PW 2., PW 6 and PW 7 inspected the aforesaid bus bearing No. NL-01-B/0611, on receipt of a secret information. The evidence of PW 3 that on checking the dickey of the aforesaid bus, they found three cartoons which is suspected to be contained contraband drugs. They made search for the owners of those cartoons. Then the handyman and the conductor of the bus i.e. PW 1 and 4 identified the present accused and another Bishnu Singh who have carried the same and both those persons also came forward and admitted about seizure of those cartoons that it contains biscuits from Nezone company. As has been discussed above, such recovery of 5 ganja from the aforesaid bus and from the possession of the accused is fully corroborated by the evidence of PW 1 and PW 4 (independent witnesses) and PW 2, 5, 6 and 7 are Customs officials. The evidence of PW 3 is given in more detail about recovery of ganja and seizure of the articles and about packing of sample there-from and sending of the sample for FSL examination and the receipt of report from the FSL. PW 3 also recorded the statements of the accused appellant and another, vide Ext. 5 and 6 which have been clearly supported by all the witnesses who were present at the time of occurrence. There is nothing to disprove the clear and convincing evidence on record. Each and every material evidence of PW 3 has been fully corroborated by the officials as well as independent witnesses. Defence fails to demolish the prosecution case either on the point of recovery of the contraband drugs from the conscious possession as well as seizure. In view of clear admission about the ownership of the seized articles, the plea of the accused that prosecution failed to prove the recovery of seized articles from their conscious possession is nothing but a false pretext. Similarly the plea of the appellant that the statement of the appellant vide PW 5 and 6 was recorded by PW 3 under duress and threat is not at all proved. Such an admission by the accused appellant immediately after recovery of ganja by customs officials is very much relevant and acceptable in support of the case of the prosecution, which indicates about recovery of ganja from the exclusive possession of the accused appellant.
14. As regards the submission so made by the learned counsel for the appellant about violation of Section 42 of the NDPS Act it is to be noted that the learned trial court has appreciated all such matters in its judgment. It has been clearly discussed that the search and seizure was made after sun set and before sun rise on secret information and search was made without any search warrant. The proviso attached to Section 42 of the NDPS Act provides that if the raiding party has reason to believe that search warrant for authorisation cannot be obtained without affording opportunity for the concealment of evidence or facilities for escape of the offender, he may enter and search the premises at any time between sun set and sun rise after recording his ground of his belief. The raiding party in the instant case intercepted the night-super bus which carried large number of passengers immediately on getting the information and there was no scope for them to approach any authority for obtaining any search or 6 authorisation. Sub-Section of Section 42 provides that the officer taking such action is required to submit report within 72 hours to his immediate superior and in this case the PW 3 informed the Superintendent, Customs Preventive Force through Ext. 15 on 10.3.2005 (date of occurrence is 9.3.2005) i.e. within 24 hrs. Thus it appears to have complied with the provision of Section 42 of the NDPS Act.
15. The learned trial court has appreciated each and every aspect of the case and gave elaborate discussion pertaining to all the issues so raised by the defence side and has arrived at the conclusion in right prospective of law and facts. The evidence on record has clearly established the fact that huge amount of ganja was found in the possession of the accused persons and it can be safely inferred that the same was carried for some illegal purpose and obviously, not for benefit of the people at large. Drugs abuse became a threat to the society as a whole and it poses serious menace to the younger generation who easily falls prey to such consumption of drugs resulting damage to health and property.
16. In view of all above, there appears nothing to interfere into the impugned judgment. The learned court below has awarded punishment of RI for 15 years along with statutory fine of Rs. 1 lac, in default RI for 2 years. However, considering the fact that the accused appellant remained all along behind the bar since the date of his arrest on 10.3.05, the sentence of accused/appellant is hereby reduced to the period already undergone by him and amount of sentence which was awarded in default of fine is reduced to 3 months.
17. The appeal is disposed of accordingly with modification of sentence as indicated above.
18. Return the LCR.
JUDGE arup