Chotan Roy @ Chotan Ray And Anr vs State Of Assam And Anr

Heard the learned counsel Mr. M. Biswas, appearing for the appellants. Also heard, Mr. B.B. Gogoi, the learned Addl. P.P. for the State of

Assam.

Challenge in this appeal is to the judgment passed by the Sessions Judge, Kamrup (M) in NDPS Case No. 50 of 2018 holding the appellants Chotan

Roy @ Chotan Ray and Sashi Kumar guilty under Section 20(b)(ii)(C) and under Section 29 of the NDPS Act.

On 02.03.2018 at about 6:30 a.m., ASI Dinesh Deka of Government Railway Police Station, Guwahati was checking the coaches of 14019 Down

Tripura Sundari Express train, which was parked in the platform No. 1 of Guwahati Railway Station. The said police officer discovered that two

passengers, namely Chotan Roy and Sashi Kumar had in their possession 4 bags contained 15 packets of suspected ganja wrapped in polythene. Both

the aforesaid persons were brought down from the coach and the Officer In-charge of the Government Railway Police Station, Guwahati was

informed. On getting the information the Officer In-charge entered the matter in General Diary vide Entry No. 30 dated 02.03.2018. He issued a letter

of authority to Sub Inspector Girindra Nath Haloi to do the investigation. Mr. Haloi went to the Platform No. 1 and met the detained persons. Mr.

Haloi searched bags of those two persons and also searched their bodies. Chotan Roy and Sashi Kumar disclosed before Mr. Haloi that out of the 15

packets, 8 packets belonged to him and the other 7 packets belonged to Sashi Kumar. Together they disclosed that they were carrying those packets

of ganja for selling them in the market.

The packets were weighed and it was found that the packets altogether contain 30 kilograms of suspected ganja. Out of the entire quantity of

suspected ganja, 24 gram samples were drawn from each packet. The appellants were arrested and the samples were sent to FSL for examination.

The FSL reported positive for ganja and therefore the charge-sheet was filed.

On their appearance before the Trial Court, the charges under Section 20(C) and 29 of the NDPS Act were framed against the appellants.

The prosecution side examined 6 witnesses. The appellants did not adduce any evidence. On the basis of the evidence on record the Trial Court

convicted the appellants under Section 20(b) (ii) (C) and under Section 29 of the NDPS Act.

The only point for determination in this appeal is as to whether the Trial Court had correctly appreciated the evidence as well as the relevant law

and arrived at a correct finding.

S.I. Girindra Nath Haloi is the first prosecution witness. His evidence-in-chief is in support of the prosecution story. During cross-examination

Girindra Nath Haloi had stated before the defence counsel that the G.D. Entry (Ext.1) made by the Officer In-charge of the police station did not

contain any note stating that the matter has been intimated to his superior officer in writing. Mr. Haloi further disclosed before the defence counsel

that there are many shops and other establishments in the platform no. 1 but they did not agree to be witnesses to the seizure and therefore he had to

take signatures of police personnel in the seizure list. The witness admitted that he did not prepare any separate inventory which is required under

Section 52-A of the NDPS Act.

The second witness is Subhash Chetry. He is a police constable and at the time of occurrence he had met ASI Dinesh Deka. His examination-in-

chief is similar to that of Girindra Nath Haloi. He stood as a witness to the seizure of the suspected ganja. There is nothing material in the cross-

examination portion of this witness.

The third prosecution witness is Subhash Singh. His evidence is similar to that of earlier witness Subhash Chetry. He was with ASI Dinesh Deka

at the time of occurrence.

The fourth witness ASI Dinesh Deka. He has stated in his evidence that the appellants Chotan Roy and Sashi Kumar were travelling in the

reserved compartment though they had a general ticket. Dinesh Deka has stated that on seeing him Sashi Kumar tried to run away. On a search,

Dinesh Deka found that the appellants were carrying suspected ganja. Dinesh Deka has stated that he immediately informed the Officer In-charge of

the police station and S.I. Girindra Nath Haloi has arrived there.

The rest of his evidence-in-chief is similar to that of Girindra Nath Haloi. The cross-examination portion of Dinesh Deka does not have any

material question, therefore does not require any elaborate discussion.

The fifth witness Dr. Dhruba Jyoti Hazarika. He spoke in support of the FSL report.

The sixth witness is Smt. Binu Hazariak. She was working as a W.S.I. in the Government Railway Police Station on 02.03.2018. She has stated

that on that day she was directed to investigate the present case by the Officer In-charge. Thereafter she recorded the statements of the witnesses

and visited the place of occurrence. She sent the samples of the seized ganja to the FSL and thereafter she had filed the charge-sheet.

Mr. M. Biswas, the learned counsel for the appellant, has submitted that the witness Girindra Nath Haloi has admitted that the concerned G.D.

Entry did not mention anything pertaining to information given to a senior officer. It is submitted that in the instant case, the mandatory provision under

Section 42(2) of the NDPS Act has not been complied with.

Mr. M. Biswas has further submitted that the witness Girindra Nath Haloi has admitted in his cross-examination that he did not prepare any

separate inventory required under Section 52-A of the NDPS Act. According to the learned counsel for the appellant, this act is a violation of a

mandatory provision and therefore it casts a doubt over the veracity of the prosecution case against the appellants. The learned counsel Mr. Biswas

has submitted that the platform no. 1 of Guwahati Railway Station contains many shops. Therefore, the prosecution version that those shopkeepers did

not want to be witnesses to the seizure, is not an acceptable fact. Mr. Biswas relied upon a decision of the Supreme Court that was rendered in Noor

Aga v. State of Punjab and Another, reported in (2008) 16 SCC 417. Para 93 of the judgment reads as under:

“93. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of the Magistrate as

envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic

drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other indentifying particulars of

the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider

relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the

following purposes:

(a) Certifying correctness of the inventory so prepared; or

(b) Taking, in the presence of such Magistrate, photographs of substances and certifying such photographs as true; or

(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list

of samples so drawn.â€​

Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the

application. The reason wherefor such a provision is made would be evident from sub-section (4) of Section 52-A which reads as under:

“52-A. Disposal of seized narcotic drugs and psychotropic substances.-

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court

trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn

under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.â€​

Concededly neither was any such application filed nor was any such order passed. Even no notice has been given to the accused before such alleged

destruction.â€​

The appellant further relied upon the decision of the Supreme Court rendered in the case of Mohan Lal v. State of Punjab, reported in (2018) 17

SCC 627. Para 8 of the judgment reads as under:

“8. The view taken by the High Court that under Section 55 of the NDPS Act, that PW1 was empowered to keep the case property and sample in

his individual safe custody is completely erroneous on the face of it. The provision reads as follows:

“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.â€

(emphasis supplied)

A plain reading of the provision makes it manifest that it is the duty of the police officer to deposit the seized material in the police station malkhana.â€​

In para 30 of the judgment the Supreme Court has held as under:

“30. In view of the conflicting opinions expressed by different two-Judge Benches of this Court, the importance of a fair investigation from the

point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in

this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible

abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has

to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the

investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined

conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.â€​

The NDPS Act is a special legislation and it prescribes harsh punishments. It is a principle of criminal jurisprudence that when higher is the

punishment, then higher is the requirement of degree of proof. Here at this stage it would be fruitful to have a brief visit to Section 50 of the NDPS

Act, 1985. Section 50 reads as under:

“50. Conditions under which search of persons shall be conducted.-

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 is about to search

any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary

delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in

sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith

discharge the person by otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest

Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic

substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate,

proceed to search the person as provided under section 100 of the Code of Criminal procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within

seventy-two hours send a copy thereof to his immediate official superior.â€​

In the instant case,I find that there is absolutely no evidence to substantiate that Section 50 of the NDPS Act has been complied with when the

appellants were searched in the railway station.

Now the question arises as to whether the provision of Section 50 of the NDPS Act is mandatory or is a directory provision.

The Constitution Bench of the Supreme Court inV ijaysinh Chandubha Jadeja v. State of Gujarat, reported in (2011) 1SCC 609, has deliberated

upon the question----

Whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 casts a duty on the empowered officer to`inform' the suspect of

his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to

whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the

mandate of the said Section?

In Vijaysinh (supra) the Supreme Court has held that the requirements of Section 50 of the NDPS Act are mandatory and therefore the provisions

of Section 50 must be strictly complied with. It is further held that it is imperative on the part of the police officer to apprise the person intended to be

searched of his right under Section 50 to be searched before a Gazetted Officer or a Magistrate. In Vijaysinh (supra) the Supreme Court has held that

it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a Gazetted

Office or a Magistrate, if so required by him and this requires a strict compliance.

Hence, I could not agree with the findings of the Trial Court because the provision of section 50 of the NDPS Act was not complied with. The

appellants were not searched in presence of a Magistrate or a Gazetted Officer. In fact the provision of section 50 was not at all complied with in this

case.

In the light of the aforesaid discussion, I have no doubt that the conviction of the appellants by the Trial Court is erroneous. Therefore, the appeal

succeeds and stands allowed. The impugned judgment convicting the appellants is set aside. The conviction of the appellants is also set aside. Both the

appellants are acquitted of the charges in question. The appeal is accordingly disposed of.

The appellants are now in custody. Both the appellants shall be set at liberty forthwith. The appeal is accordingly disposed of.