Gauhati High Court
Shri Alamo Lotha vs The State Of Assam on 7 August, 2012
Author: P K Musahary
Bench: P K Musahary
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR:
TRIPURA: MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL No.150(J) of 2007 of
&
CRIMINAL APPEAL No. 151(J) of 2007
CRIMINAL APPEAL No.150(J) of 2007
Shri Alamo Lotha
Son of Late Lisampimo Lotha
Village-Singiki, P.S- Okha,
District- Okha (Nagaland)
...Appellant
-Vs-
State of Assam
...Respondent
CRIMINAL APPEAL No.151(J) of 2007 Shri Thangojamo Lotha Son of Rangsamo Lotha Village-Singiki, P.S- Okha, District- Okha (Nagaland) ...Appellant
-Vs-
State of Assam
...Respondent
BEFORE
HON'BLE MR.JUSTICE P K MUSAHARY
For the Appellant :Ms. Nandita Bharali
in Criminal Appeal No.150(J) of 2007 Amicus Curiae
For the Appellant : Ms.Pallavi Talukdar
in Criminal Appeal No.151(J) of 2007 Amicus Curiae
For the Respondent in both the : Mr. D.Das,Addl. P.P,Assam.
Criminal Appeal
Date of hearing : 24.07.2012
Date of Judgment : 07.08.2012
JUDGEMENT & ORDER(CAV)
Sentence serving convicts are in appeal from jail. They were prosecuted in Marioni GRPS Case No.11 of 2006 and were convicted under Section 22(C) of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1 lac and in default of payment of fine to undergo simple imprisonment for one year by the learned Sessions Judge Golaghat vide judgment dated 16.8.2007 rendered in Sessions (special) case No.5 of 2006. They have preferred the appeal individually against the said judgment and as such both appeals, for the sake of convenience, are heard together and being disposed of by this common judgment.
2. The prosecution case is this. One Sri Girindra Nath Haloi, Incharge of Furkating Government Railway Police Out Post, (GR OP in short), along with his staff, while checking luggages at Platform No.1 of Furkating Railway Station, found one unattended steel trunk and when he made an enquiry about it, the accused appellants came forward as owners of the said trunk. When the trunk was opened some spamo proxyvon relipan and orange coloured capsules were found. He suspected the capsules to be Narcotic drugs and on suspicion he brought the accused persons along with the trunk to Furkating GR Out Post . In the Out Post , during interrogation, both the accused persons admitted that those capsules were drugs and they brought the same for business. Thereafter, he seized the trunk along with capsules and handed over the same along with the accused persons to Marioni GR Police Station as the Furkating G.R.Out Post falls under the said Police Station. The O.C.concerned seized the trunk and capsules in presence of some witnesses and sent the sample to FSL, Guwahati for chemical test and report. The sample capsules tested positive and the accused were arrested under Section 42 of the NDPS Act. On completion of the investigation the police submitted charge-sheet against the appellant under Section 22 of the NDPS Act. On consideration of materials on record charge was framed under Section 22 of the NDPS Act. The charge being read over and explained, the accused persons pleaded not guilty and claimed to face the trial. The prosecution examined 7(seven) witnesses and the defence examined none. In their statement recorded under Section 313 Cr.P.C., both the accused persons stated that they were falsely implicated by police inasmuch as on the relevant day they were waiting in the platform for train and having tea at a tea stall in the Railway Platform. They were brought to the police station on suspicion with the trunk and forced them to say that they were the owner of the said trunk which was lying in the platform No.1 of Furkating Railway Station. The learned trial court, on consideration of materials, evidence on record and upon hearing the learned counsel for the parties convicted and sentenced the appellants as indicated above.
3. I have heard Ms. Nandita Bharali, learned counsel as Amicus Curiae in Criminal Appeal No.150(J)/07 and Ms. Pallavi Talukdar, learned counsel as Amicus Curiae in Criminal Appeal No.151(J)/07 and Mr. D.Das, learned Addl. Public Prosecutor, Assam for the State Respondent. The learned counsel appearing for the appellants as Amicus Curiae, have made common submissions which are as follows-
(i) The O.C.of the GRPS having lodged the written FIR and investigated the case in violation of the accepted principle of law that the complainant can not take into himself the task of investigation, vitiated the entire proceeding and as such the impugned conviction and sentence, for the sake of fairness and impartiality in criminal trial, is liable to be quashed and set aside.
(ii) Conscious and exclusive possession of the trunk containing the articles suspected to be contraband having not been proved by the prosecution by producing independent witness, the learned trial court illegally and erroneously convicted the accused appellants which is unsustainable in law.
(iii) The prosecution, except the seizure list witness, examined no independent witness to prove the charge of ownership of the trunk seized at the Platform of the Railway Station.
(iv)The trunk claimed to have been seized was not sealed at the platform before it was carried and handed over to the GR Police Station. The seal was not even found intact when the trunk and the sample were sent to the FSL.
(iv) The FSL report having not mentioned to the percentage of dextropropoxyhene, dycyclomine and
paracetamol, cannot be accepted as a valid document with evidentiary value.
4. Mr.D.Das, learned Addl. Public Prosecutor asserts that the materials and the evidence on record clearly established the guilt of the appellants and the learned trial court rightly awarded the conviction and sentence on them having found the charge established beyond reasonable doubt and in view of the above the appeal must be dismissed.
5. The aforesaid submissions of the learned Amicus Curiae calls for appreciation of evidence of the witnesses examined by the prosecution. P.W.1, Sri Girindra Nath Haloi, Incharge of Furkating GR Out Post, who was on duty at the Railway Station, testified the recovery of the trunk and seizure of the same along with some tablets/capsules in presence of some witnesses and handing over of the said seized articles to O/C Marioni GRP Police Station. He stated that the O/C Marioni prepared a seizure list and he signed as a witness thereon. In his cross-examination he stated that in the Ejahar the names of other staff who went with him to Railway Platform was not mentioned. Nor did he tell the I.O.the names of the staff who accompanied him to the Platform. He brought some persons from the Platform to Police Out Post. He did not seize the broken lock of the box. He even did not seal the articles after seizure. He did not make separate MR No. for the seized articles. Further he stated that while taking the box from Railway Station he did not inform the Railway Police. He was interrogated by police at Marioni Police Station. The witness to the seizure list did not come to the police station along with him.
6. Sri Ramesh Talukdar, O.C. Furkating GRP Police Station, the informant/complainant, was examined as PW-7. As per his evidence P.W.1 informed him over telephone that he had arrested two suspected men along with a trunk containing some tablets and the said P.W.1 brought them along with the seized articles to Marioni GR Police Station. He stated that P.W.1 seized the articles at Furkating Railway Station. He again seized the articles at the police station and sent the random sample for chemical examination and produced the seized articles in the court. He made a G.D.Entry, being GDE No.311 dated 13.8.2006 and arrested the accused persons and produced them before the court. He collected the FSL report and lodged an Ejahar under Section 42 read with Section 22 of the NDPS Act.
7. In cross examination he stated that he wrote the Ejahar at the instance of S.I.Haloi (P.W.1) but he has not mentioned therein that the GD Entry was made on the basis of information received over telephone from P.W.1. He himself did not go to Furkating railway station nor did he record any statement of the Platform guard and Station Master. He even did not record the statement of hawkers at the Railway Station nor did he make any investigation as to where and how both the accused persons were found at the Railway Station. He made no prayer before the Magistrate for recording confessional statement of the accused persons. Further he stated that the trunk was found open when it was brought to the police station. He sent four tablets in random as sample for chemical test by the FSL. The weight of the tablets is not mentioned in the requisition letter. There was no cover over the orange coloured capsules.
8. P.W.2, Nikhil Chakraborty and P.W.3, Sri Tutan Basak are seizure witneses. Both of them stated that police of Marioni GRPS called and told them about the recovery of trunk and tablets/capsules. They put their signatures on the seizure list as told by the police. In cross-examination they stated that they did not know how and from where the articles were seized. Another witness Sri Dipak Dey, PW.5, who is having business of catering at Furkating Railway Station, deposed that both the accused persons were taking tea in Dilip Dey's stall and they were apprehended by the police. The police , when opening the box found it empty and took the box to GRP Out Post and recovered the tablets/capsules from the box. The police seized the articles and he put his signature on it. However in cross-examination he stated that he did not know what was written on Ext.1, seizure list, prepared by the police. As against their evidence PW.4, Sri Dilip Dey, deposed that he had a tea stall at Furkating Railway Station and at about 11.30 AM, about 6/7 months ago, the accused persons had tea in his tea stall keeping the box at some distance. When the police checked the box both the accused persons claimed to be owner of the box and then the police took them away with the box. When the box was opened nothing was found in the upper part of it but when the lower part was opened some tablets were found. Police called him and seized the box with the tablets. He stated that police did not interrogate him. He also stated that he does not know what had happened in the police station after the box was taken there. However he put his signature on a piece of blank paper. He proved his signature found on Ext.1, the seizure list. He again stated that he did not tell the police that both the accused persons had kept the box at a great distance and then had tea in his tea stall.
9. One Dr. Dhrubajyoti Hazarika, Scientific Officer of FSL, Assam, Kahilipara, Guwahati was examined as P.W.6. He testified the receipt of parcel sent to the Director by the prosecution for chemical test. He deposed that he received the articles in one sealed envelop having a closed polithine packet containing four orange coloured tablets in a strip marked as Ext.A. He also received one closed polithine packet containing four blue coloured capsules in a strip marked as Ext.B and one closed packet containing four orange coloured tablets marked as Ext.C. He has not stated whether the latter two closed polithine packets were sealed or not. Had they been under sealed cover/packet it would have been stated so by the witness. To a question put in cross-examination he stated- " in my report the percentage of dextropropoxyphene, dycyclomine and paracetamol are absent. I have not mentioned the description of the strips in my report. Paracetamol is a pharmaceutical preparation. It is not a fact that dextropropoxyphene, dycyclomine is not a drug."
10. I have carefully perused and examined the LCRs along with evidence on record. As regards the main submission of the appellants that the informant/complainant himself undertook the investigation and on that score the prosecution committed grave error and the conviction cannot be sustained, I have found that the S.I. Sri Ramesh Talukdar, O.C. of Marioni GRPS made a GD Entry at 3 PM vide GD Entry No.311 dated 13.8.06(Ext.5) recording that ASI G.N.Haloi I/C Furkating GR OP along with his staff, while on checking duty recovered a trunk at the Railway Platform at about 11.15 AM and the said ASI having not been able to trace out the owner, brought the trunk to the out Post. Just after few moments, the accused persons came to the out post and claimed themselves as owner of the trunk and when, on suspicion, the trunk was opened, some contraband capsules were found and the accused appellants told him that they brought the capsules for illegal business. The I/C seized the articles in presence of witnesses and brought the seized articles with the accused persons to the police station. The said GD Entry was recorded and signed by the O.C. Ramesh Talukdar (P.W.7). He forwarded the accused persons to the CJM, Golaghat on 14.8.2006 and asked for remand of the accused persons in jail hajat for a period of 14 days with effect from 14.8.06 to 27.8.06 to enable him to complete the investigation of the case. As stated earlier the O.C.Sri Ramesh Talukdar sent the seized articles to the FSL for testing and report and after collection of the report lodged the FIR on 12.10.06 which was registered as Marioini GRPS Case No.11/06 under Section 22 of the NDPS Act. He was authorized by the Deputy Superintendent of Railway Police Lumding, Nagaon, vide communication dated 13.8.06 to take necessary action under Section 42 of the NDPS Act. From the above there is no doubt that PW-7 being O.C. of the GRPS made the GD Entry, got authorization to take necessary steps from the higher authority and accordingly he took the charge of investigation of the case in himself, took all necessary steps like recording of statements of witnesses, production of accused persons before the Magistrate and collection of report from FSL. From these facts it is established that P.W.7 was the informant/complainant and he carried on with the investigation including examination of witnesses under Section 161 Cr.P.C.He even submitted the charge sheet. There is a complete bar on resorting to such practice as per the judicial pronouncement of the Apex Court in Megha Singh -vs- State of Haryana, reported in (1996) 11 SCC 709.In paragraph 4 of the said judgment it has been observed- " we have also noted another disturbing feature in this case.PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and cartridges were recovered from the accused. It was on his complaint a formal first informant report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice , to say the least, should not be resorted to so that there might not be any occasion to suspect fair and impartial investigation". In my considered view the ruling in the above cited case is applicable to the present case and it can be held that the order of conviction and sentence is vitiated due to unfair investigation against the established procedure.
11. From the records I found that the accused was forwarded /produced before the CJM, Golaghat on 14.8.06. On that day, the seized articles were not produced before the learned CJM. They were produced only on 16.8.06 and no reason has been assigned why the seized articles could not be produced along with accused persons before the CJM or Magistrate. But interestingly, it is also found that PW-7 sent 'random samples' of the seized contraband to the Director of FSL on 15.8.06. It means that samples were sent to the Director of FSL without first producing the seized contraband before the Magistrate and without any order of the Magistrate to that effect. The law requires that seized contraband articles should be produced before the Magistrate first and then, with the order of the Magistrate the same should be sent to the FSL. The law also requires that the sample should be drawn, packeted and sealed in presence of the Magistrate before sending it to FSL. It appears from record that P.W.7 vide his letter under Memo No.MXW/GRPS/D-Pt-III/06/34 dated 15.8.06 sent the sample of the seized contraband to the Director of Forensic Science Laboratory, Assam requesting him to examine and give expert opinion. The said request letter was placed / endorsed before the learned CJM, Golaghat only on 23.8.06. The learned CJM forwarded the same to the learned Sessions Judge, Golaghat who had marked 'seen' and signed on the body of the copy of the letter on 28.8.06.There is nothing on record to show that the seized contraband articles were produced before the Magistrate within a time limit, packeted and sealed in presence of the Magistrate, accused persons and witnesses. There is also nothing on record to show that the samples of the seized contraband were packeted and sealed in presence of the Magistrate, accused persons and the witnesses before sending them to Director of FSL for testing.
12. As stated earlier the seized contraband were produced before the CJM only on 16.8.06, the prosecution has to explain how it could be produced after a gap of two days. The prosecution has to explain where and how the seized contraband articles were kept after being seized on 13.8.06 at 3.30 pm till their production before CJM on 16.8.06. Where were the contraband kept on the night of 13.8.06, whole day and night of 14.8.06 till production on 16.8.06 before the Magistrate? Were they kept in the safe personal custody of O/C P.W.7 or in the Malkhana? The O.C., PW-7, who was also I.O. of the case, in his deposition made no statement as to how, where and whose custody the seized contraband were kept. He has never stated in his evidence that they were kept under his personal care and custody or in the custody of his subordinate official or he specifically authorized some official to take care and custody of the contraband nor has he stated that he kept the contraband in the Malkhana. Had the seized contraband were kept in the Malkhana it was incumbent upon the prosecution to produce the Malkhana register to show /prove that it was kept in safe custody of the police Malkhana. Keeping of the seized contraband in safe custody from the time of seizure till production before the CJM or Magistrate and drawing, packeting and sealing of sample for sending it to FSL, is a statutorily cast duty of the O.C. He can not escape from this duty and responsibility merely showing that he produced the seized contraband and sent the sample of the contraband to the FSL. The prosecution took no care to produce the Malkhana register. It is a serious irregularity on the part of the prosecution which may result in to quashment of conviction and sentence. In this regard, I am persuaded to refer to the State of Rajasthan -Vs- Gurmail Singh reported in (2005) 3 SCC 59. It was a case where the prosecution claimed that seized articles were kept in Malkhana till it was taken over but the Malkhana register was not produced in support thereof. It was in such situation, considered as a serious infirmity in the prosecution case. Section 55 of the NDPS Act is exhaustive in regard to taking charge of articles seized and keeping them in custody by police. The said Section is reproduced below for the sake of appreciation and ready reference:
"55.Police to take charge of articles seized and delivered-An Officer-In-Charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the Officer-In-Charge of the Police Station. "
13. This provision is not mandatory. It is directory in nature but the Apex Court in Gurbax Singh -Vs- State of Haryana reported in AIR 2001 SC 1002 held that the I.O. cannot totally ignore this provision and failure in compliance with the same will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of articles. In the present case it is needless to say that the O.C., who himself was the I.O. failed to discharge his statutory duties and responsibilities in the matter of keeping the seized contraband under safe custody and also in observing/following the entire process of packeting the sample and sending them for chemical examination as required under the law. It is because an offence committed under the NDPS Act is always treated as grievous and serious. In several judicial pronouncements emphasis has been given on providing procedural safeguards to the accused under the statute. It is, therefore, expected that I.O. should comply with the procedure laid down under Section 55 of the NDPS Act.
14. Regarding recovery of the trunk by the police and claim of ownership of the said trunk by the accused persons , I have noticed contradictory and inconsistent evidence of the prosecution witnesses. As per the evidence P.W.1, incharge of the GRP Out Post who led the checking, a commotion was created by the passengers in the Platform No.1 and he brought the trunk to the police station but at the same time he stated that when he was about to open the trunk at the Out Post, two Naga Youths came there claiming the trunk to be theirs. Question arises whether P.W.1 took the trunk straight way to the police station or he took it first to Furkating Out Post and then to police station. As per evidence of the P.W.4, tea stall owner, both the accused persons were taking tea in his tea stall keeping their box at some distance and when the GR Police checked the box, both the accused persons claimed the box to be theirs. There is a contradiction in the evidence of important prosecution witnesses in sofar as P.W.1 stated in his evidence that the accused persons came to the police station and claimed the ownership of the trunk while the P.W.4 who was an eye witness to act of checking of the trunk in his presence at some distance from his tea stall stated that the accused persons claimed ownership of the trunk at the time of checking at some distance from his stall located in the Railway Platform. This P.W.4 categorically stated in cross examination that the police did not interrogate him. There is another contradiction in the evidence of P.W.5 , seizure witness, inasmuch as he stated that when somebody left a box unattended at the Railway Station there was a noise and the police came and apprehended the accused persons when they were taking tea in the tea stall of P.W.4. The police got the box opened by the accused persons. They first found the box empty and then out of suspicion took the box to GRP Out post. The evidence of P.W.5 is that the box was opened by the police at the Railway Platform first and then taken to the police Out Post. As per his evidence the accused persons were arrested at the Platform itself whereas as per the evidence of PW-1 (I/C Police Out Post), the trunk/box was brought to police station and the accused persons (two Naga youths) came to the police station when the trunk was about to be opened. This contradictions cast doubt on the actual position in regard to the vital issue relating to recovery of the trunk/box, place of arrest of the accused persons and veracity in the claim of the police that the accused persons claimed ownership of the trunk /box containing contraband.
15. This court in similar case namely Ganesh Chetry and another -vs- State of Assam, reported in 2012 (3) GLT 401, on the basis of the various rulings of the Apex Court observed that the court is to take note that the NDPS Act is a special law with stringent provision for control and regulation of operation relating to narcotic drugs and psychotropic substances and illicit trafficking. The offence under the NDPS Act, therefore, is always treated with serious penal provision. Due to serious penal provision provided in the said Act, it is always emphasized that the procedural safeguards under the statute are followed strictly. The settled law is that more stringent the law, stricter compliance of procedure laid down in the law is needed.In the present case I have already discussed and pointed out the manner in which the recovery /seizure , drawal of sample, packeting and sealing of the sample and sending them to the FSL without strictly observing the procedure laid down under Section 55 of the NDPS Act.The procedure adopted by the prosecution is found to be far from satisfaction of the court. The judicial conscience does not accept the procedure adopted by the prosecution in the present case. In such situation, the court is bound to take a view that the prosecution committed serious irregularity and infirmity in the investigation of the matter. The existence of contradiction and inconsistency in the evidence of important prosecution witnesses does not inspire the confidence of the court to approve the conviction and sentence as awarded by the learned trial court. There are several missing links in the investigation of the prosecution and it has failed to convince the court that prosecution has been able to prove the charge against the appellants beyond all reasonable doubts. I am unable to persuade myself to record conviction and sentence against the appellants and I am unable to agree with the findings and conclusion of the learned trial court. I set aside and quash the impugned order of conviction and sentence. The appellants are entitled to acquittal on benefit of doubt and accordingly, they stand acquitted. The appeals stand allowed. The appellants shall be set at liberty forthwith if their further detention is not wanted in connection with any other case. The bail bonds stand discharged.
16. Before parting with the records, I record acknowledgement of the legal service and assistance rendered by both the learned counsel as Amicus Curiae and direct the Assam State Legal Services Authority to pay Rs.5000/- each to Ms. Nandia Bharali and Ms.Pallavi Talukdar as legal fee.
17. Send down the LCRs forthwith.
JUDGE Nandi