Gauhati High Court
Saulat Rasool vs The State Of Assam And Anr on 19 September, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/10
GAHC010272382019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./14/2020
SAULAT RASOOL
S/O LATE AZIZUR RAHMAN,
R/O VILLAGE SARAYAPURZADA, ASISPUR,
P.S. BAZARSCHOOL, DISTRICT- AMETHI, UTTAR PRADESH.
VERSUS
THE STATE OF ASSAM AND ANR
ASSAM
2:BISWAJIT RABHA
S/O LATE RAM PRASAD RABHA
R/O PANJABARI
P.S. SATGAON
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. B K MAHAJAN
Advocate for the Respondent : PP, ASSAM
Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR JUDGMENT & ORDER Date : 19.09.2022 Heard Mr. M Biswas, learned counsel for the appellant as well as Mr. BB Gogoi, learned Addl. P.P., Assam appearing for the State respondent.
2. This appeal under Section 374 (2) of the Code of Criminal Procedure ('Cr.P.C.' for short) is preferred against the Judgment and Order, dated 31.08.2019, passed by the learned Special Judge ( NDPS Act), Kamrup (M), Guwahati in NDPS Case No. 80 of 2018 under Section 21 (c) of the NDPS Act, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs.1,00,000/- (Rupees One Lakh), in default, to suffer imprisonment for 6 (six) months under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short).
PROSECUTION STORY:
3. The prosecution story, in brief, is that on 11.06.2018, at around 7.30 am, at Guwahati Railway Station, the train checking party of the Government Railway Police Station (GRPS), Guwahati led by one ASI SK Jha, recovered four packets of suspected morphine from the possession of the accused /appellant who was travelling in the Coach No.1-A , seat No.48 of the 12423 Down Rajdhani Express Train. On enquiry, the accused /appellant disclosed that he had purchased the morphine at Dimapur Bus Stand from an unknown Naga Page No.# 3/10 person and he carried the same to Kanpur for business purpose. Later on, SI Biswajit Rabha, who was entrusted for preliminary steps, weighed the suspected morphine and found the total weight to be 900 grams.
INVESTIGATION & TRIAL:
4. On receipt of the FIR, Officer-In-Charge, Guwahati GRPS registered the case being Case No. 153/2018 under Section 20 (c) of the NDPS Act. After completion of investigation, the investigating officer laid a charge-sheet against the accused appellant under Section 21 (c) of the NDPS Act. On appearance of the accused/appellant, the learned trial court framed a charge against him under Section 21 (c) of the NDPS Act. The accused/ appellant pleaded not guilty and claimed to be tried.
5. In order to bring home the charge brought against the accused/ appellant, the prosecution examined altogether 06 (six) witnesses. After closing the evidence of the prosecution side, the statement of the accused/appellant under Section 313 Cr.P.C. was recorded. The accused/appellant pleaded innocence and claimed to be tried. After completion of trial, the learned Special Judge (NDPS Act), Kamrup (M), Guwahati convicted and sentenced the accused/appellant under Section 21 (c) of the NDPS Act as stated above.
EVIDENCE:
Now, let us look to the evidence on record in short:
6. P.W. 1, Nikunja Das, UBC, GRPS, Guwahati, in his evidence stated that on 11.06.2018, while he along with ASI SK Jha and other staff were on train checking duty at Guwahati Railway Station, at around 6.30 am in the Down Rajdhani Express, they checked Coach No.A-1, Berth No.48 and found a Page No.# 4/10 passenger with a black colour bag and four small plastic packets containing powder like substance, suspected to be morphine. Thereafter, SI Biswajit Rabha, who came to the place, weighed the packets, collected samples and prepared the seizure list Ext. 1, where Ext. 1 (1) is his signature. He recognized Material Ext. 1, the seized bag and Material Ext. 2, the sealed packet containing the packets of morphine.
7. P.W. 2, SI Biswajit Rabha, the search and seizing officer, deposed that on 11.06.2018, he was posted at the Guwahati GRPS. On that day at around 7.30 am while the train checking in-charge of the GRPS, namely ASI SK Jha was checking the coaches of the Rajdhani Express train in Coach No.A-1, Berth No.48 found four packets of suspected morphine in a black- coloured bag. The said bag belonged to the passenger Saulat Rasool (accused/appellant herein), aged about 40 years. Thereafter, he weighed the four packets of suspected morphine and found the weight of each packet to be 225 grams and seized the same in presence of witnesses. During interrogation, the accused disclosed that he was carrying the morphine for business purpose. He further recovered voter ID card, Aadhaar Card, two mobile handsets and one Railway ticket relating to his journey from Dimapur to Kanpur.
8. PW-3 Premchand Singh, UBC, deposed that on 11.06.2018, during checking of the Rajdhani Express train with his colleagues in the compartment No. A-1, Seat No.48 found suspected morphine in a black bag carried by a passenger. The passenger was sleeping over the said bag containing suspected morphine. After some time, SI Biswajit Rabha arrived with one weighing scale and weighed the suspected morphine. SI Rabha collected eight samples from the four packets of suspected morphine and took his signature on the sample packets and seized other articles from the said person.
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9. PW-4, Gajendra Nath Deka, Joint Director, Directorate of Forensic Science Laboratory, Assam deposed that he examined the samples of suspected morphine as per the United Nations Drug Testing Manual and on examination, the sample gave positive tests for morphine and the percentage of morphine was 69.27. Ext. 4 is the report prepared by him.
10. PW-5, ASI Dinesh Deka deposed that while he was on train checking duty on 11.06.2018 along with his staff, they entered into the compartment No. A-1, Seat No.48 of Rajdhani Express and found one passenger with a backpack and inside the said bag they found powder like substance. Thereafter, they informed the officer-in-charge of the Guwahati GRPS. After some time, SI Biswajit Rabha, the search and seizing officer, arrived at the platform and weighed the suspected morphine by official weighing scale and found the weight to be 900 grams. Biswajit Rabha also recovered one Aadhaar Card, Voter ID Card, Railway ticket and two mobile handsets from the passenger and seized the same vide Ext. 1, the seizure list. Ext. 1 (4) is his signature thereon.
11. P.W. 6, SI Girindra Nath Haloi deposed that on 11.06.2018, SI Biswajit Rabha lodged an FIR with the Guwahati GRPS and the Officer-in-Charge entrusted him to investigate into the case. In course of investigation, he examined the informant and visited the place of occurrence and having found prime facie evidence arrested the accused/appellant and forwarded him to the Court. He also produced the articles seized from the possession of the accused/appellant before the Court. SI Biswajit Rabha had collected the samples of the suspected morphine and sent the samples to the FSL for examination. On examination, the sample gave positive tests for morphine.
In his cross-examination, he stated that he visited the place of occurrence, but he did not examine any independent witness nor he prepared any inventory.
Page No.# 6/10 He further stated that he did not submit the Malkhana receipt regarding deposit of the sample in the Malkhana of the GRPS, Guwahati.
ARGUMENTS:
12. Mr. M Biswas, learned counsel appearing for the appellant, submitted that the conviction of the appellant has been based on erroneous appreciation of the evidence on record and on the basis of conjectures and surmises. Mr. Biswas further submitted that the learned trial court omitted to appreciate the fact that the prosecution failed to examine the most material witnesses namely, ASI SK Jha, who led the police checking party at the relevant time and apprehended the appellant in the railway compartment and the Malkhana in-charge, where the seized contraband was claimed to be deposited after seizure. Mr. Biswas also submitted that PWs- 1 and 5 specifically mentioned that they did not call any independent witness, despite availability of such persons on the railway platform. Referring to the evidence of PW-6, the investigating officer, Mr. Biswas submitted that he neither examined any witness, nor prepared any inventory, but by PW-2, who was entrusted by the Officer-in-Charge of GRPS, to take preliminary steps, after receiving the information. Concluding the argument, Mr. Biswas, learned counsel for the appellant, submitted that there is absolutely no convincing evidence that the alleged recovery was made from the exclusive and conscious possession of the appellant, who was a passenger of the train. In support of his argument, Mr. Biswas has relied on the judgments rendered in the cases of Joginder Singh -vs- Union of India; (2018) 2 GLT 402, Gorakh Nath Prasad -vs- State of Bihar; (2018) 2 SCC 305, State of Gujarat -vs- Ismail U Haji Patel & Anr; (2003) 12 SCC 291, State of Rajasthan -vs- Tara Singh; (2011) 11 SCC 559, Noor Aga -vs- State of Punjab ;(2008) 16 SCC 417, Union of India
-vs- Mohanlal; (2016) 3 SCC 379.
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13. Per contra, Mr. BB Gogoi, learned Additional Public prosecutor for the State respondent, submitted that the evidence, oral and documentary, available on record apparently establish that the recovery and seizure of the contraband morphine was made from the exclusive and conscious possession of the appellant.
ANALYSIS OF EVIDENCE
14. I have given due consideration of the above arguments advanced by the learned counsel of both sides and perused record. Also perused the relevant citations.
15. It may pertinently be mentioned here that as held in Gorakh Nath Prasad (supra), the Hon'ble Supreme Court held that NDPS Act provides for a reverse burden of proof upon the accused, contrary to the normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. However, this rule shall not dispense with the requirement of the prosecution to having first establish a prima facie case, only whereafter the burden will shift to the accused. In the instant case, it is noticed that the alleged 900 grams of contraband morphine was seized from the possession of the accused in 4 packets of 225 gm each while carried in the Coach -A1 of 12423 DN. Rajdhani Express train at Platform No.1 of Guwahati Railway Station, by train checking party headed by ASI SK Jha, who reported the recovery to the officer-in-charge, GRPS, Guwahati, who is, of course, not examined in the case. From the evidence of PW-1, PW-2, PW-3, the constables of GRP, Guwahati and PW-5, ASI of GRP, Guwahati deposed that in course of discharging train checking duty they detected possession of the said contraband by the appellant and after such detection, ASI SK Jha informed about it to the officer-in-charge of the GRPS, Guwahati and thereupon, a GD Entry was made and accordingly, he detailed Page No.# 8/10 PW-2 SI Biswajit Rabha to take necessary action as per the procedure prescribed in the NDPS Act vide Ext. 2, the Authority Letter. The evidence of PW-2 shows that as per the aforesaid direction, he proceeded to the Platform No.1 accompanied by one Constable and one Home Guard as the accused along with the contraband containing packets had been already brought down to the said Railway Platform No.1 by the train checking party.
16. At the Platform No.1 of Guwahati Railway Station, PW-2 initiated the alleged search and seizure process and prepared the seizure list vide Ext. 1. However, it is seen from evidence that no attempt was made to procure any independent witness admittedly despite availability at the relevant time at the Platform No.1 to witness the search and seizure. This lapse certainly amounted to contravention of the requirement of Section 100 (4) of the CrPC as held by this Court in the case of Joginder Singh (supra). In such a fact situation, not joining of any independent witness in the search and seizure process of contraband despite availability at a busy public place like Guwahati Railway Station Platform creates a reasonable doubt about the veracity of the prosecution case in this regard.
17. It is further noticed that in view of non-examination of any independent passenger witness, who witnessed the accused carrying bag with him in the train and ASI SK Jha, who allegedly first detected him carrying contraband and reported the detention to the Officer-In-Charge of GRPS, Guwahati , namely Inspector Utpal Kumar Das has certainly weakened the prosecution's claim of recovery and seizure of the aforesaid contraband morphine from the exclusive and conscious possession of the accused.
18. It is also interesting to note that PW-2 deposed to have deposited the seized articles with the In-charge of the Malkhana of the GRPS, Guwahati, Page No.# 9/10 namely ASI Debendra Talukdar vide MR No.96/2018 along with the samples. But the said ASI Debendra Talukdar, the Malkhana in-charge was neither examined in the case nor any certified extract of the relevant Malkhana register entry was exhibited in the case. This lapse in the case creates a doubt on the proper compliance of Section 55 of the NDPS Act and that logically follows the presumption negativating the authenticity of the samples of the seized morphine, which PW-4, the then Joint Director of the DFSL, Assam examined and gave his chemical analysis report thereon vide Ext.4 to the effect that the seized powdery substance gave positive tests for morphine. Here, it may be mentioned that the sample containing envelope with facsimile of the seal 'GHQY GRPS' remained not exhibited in the case. This material lapse also casts a doubt on the authenticity of the sample of seized contraband which was allegedly forwarded and PW-4 examined and submitted test report thereon.
19. Turning to the evidence of PW-6, SI Girindra Nath Haloi, the investigating officer, it is found that he investigated the case, as per procedure provided in Chapter XII of CrPC and after completion of investigation submitted the charge- sheet vide Ext. 6, but in cross-examination stated that he did not prepare any inventory as per requirement of Section 52 A (2) of the NDPS Act.
20. To sum up, the prosecution case suffers from material procedural irregularities such as non-examination of the offence detecting police officer; non-examination of the Malkhana in-charge of the GRPS, Guwahati and non- exhibition of the malkhana register or extract of Malkhana register; non- preparation of any inventory; non procuring of any independent witness despite readily available at the public place of search and seizure etc and resultantly, the prosecution failed in duty to discharge its initial burden of proof of recovery and seizure of morphine from the exclusive and conscious possession of the accused Page No.# 10/10 beyond all reasonable doubt. In such a situation, no reverse burden lies on the accused/appellant to prove his innocence.
CONCLUSION:
21. Accordingly, the appeal stands allowed. The accused/appellant is acquitted of the charge by setting aside the impugned Judgment and Order.
Issue release order.
Send back the LCR.
The criminal appeal stands disposed of.
JUDGE Comparing Assistant