Kailash Chowdhury vs State of Assam

D. Biswas, J.—This appeal is directed against the judgment dated 25.2.1997 passed by the Learned Special Judge, Tinsukla in N.D.P.S. Case No. 6(T) of 1994 convicting the appellant u/s 20(B)(I) of the N.D.P.S. Act, 1985 and sentencing him to undergo Regorous Imprisonment for 5 years and to pay a fine of Rs. 2,000, in default, to undergo Rigorous Imprisonment for one year.

The appellant being highly aggrieved by the aforesaid judgement of conviction and sentence has preferred this appeal controverting the legality and validity of the judgement on various grounds. Shri Sana, Learned Counsel for the appellant, during the course of argument assailed the decision on the ground that the ingredients of offence u/s 20(B)(I) of the Act are lacking in the Instant case in as much as there is no evidence to show that "Ganja" was seized from the possession of the appellant. Besides, it has been argued that the Learned Special Judge has failed to consider the evidence of the witnesses in proper perspective and also did not consider the validity of the investigation done by an officer not empowered under the Act to Investigate an offence under the N.D.P.S. Act. In addition, the Learned Counsel also raised grievance on the ground that the provisions of Section 41 of the N.D.P.S. Act have not been complied with.

A search was carried out in the residential premises of Ramayan Sahani and appellant-Kailash Chowdhury on 12.3.1994 at about 10:30 A.M. by Shri Gauri Kanta Lahkar, Sub-Inspector of Police attached with Dhalla Police Station of Tinsukia District in presence of witnesses and seized 600 gms. of Ganja and the sample thereof was sent to expert, and the expert reported positive test of cannabis (Ganja). On completion of investigation, the police submitted charge sheet against the aforesaid persons. The trial proceeded against the appellant alone as the presence of other accused Ramayan Sahani could not be procured. The appellant was indicated for an offence u/s 20 of N.D.P.S, Act to which he pleaded not quilty. Prosecution examined as many as 6 witnesses whereas the defence examined none. On conclusion of trial, the Learned Special Judge awarded the verdict of guild and imposed the sentence as stated above.

The prime question that affects the genesis of the prosecution case is whether the investigation by an officer not being an empowered officer or authorised officer u/s 41(2) of the N.O.P.S. Act is sustainable in law and the conviction recorded thereon could be upheld.

PW 6, Shri Gauri Kanta Lahkar, who had carried out the search and seizure and investigation in the instant case is a Sub-Inspector of Police attached with Dhalla Police Station. According to him, the appellant and his accomplish were apprehended by Assistant Sub-Inspector, Jatin Gogol and after interrogation of the arrested persons their houses were searched. During search they found 600 gms. of Ganja which was seized by him by seizure list Ext.-4. The witness further stated that he had arrested the accused persons and forwarded them to court and after completion of investigation charge-sheet was submitted by him. During the course of cross-examination he stated that he did not take permission of any superior officer other than the Officer-in-Charge of the Police Station to investigate the case. He further proved Ext.-5, the complaint petition addressed to the Officer-in-Charge of the Police Station lodged by him.

I have examined the record of the learned court below. There is nothing on record to show that the officer concerned has been authorised to exercise the powers under Sub-section (2) of Section 41. No notification could be produced, even at the stage of argument before this Court, by the Learned Public Prosecutor to show that the officer concerned has been empowered by the State Government to exercise the powers under the Act. It, therefore, appears that the search, seizure, arrest of the appellant and even the investigation stand vitiated for lack of sanction of law. This view is drawn on law as in Force today. The Hon''ble Supreme Court in Roy V.D., appallent v. State of Kerla respondent 2000 AIR SC 4005 held as follows :

"16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers u/s 41(1) of the N.D.P.S-. Act or make a complaint under clause (d) of Sub-section (1) of Section 36-A of the N.D.P.S. Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer u/s 41(2) of the N.D.P.S. Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the N.D.P.S. Act and use of such a material by the prosecution vitiates the trial.

To the same effect in the view expressed by the Court in State of Punjab Vs. Balbir Singh, In para 13 Jayachadra Reddy, J. speaking for the Court observed thus (para 14 of AIR):

"Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by an officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial."

It is well settled that the power u/s 482 of the CrPC has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot be but amount to abuse of the process of the Court in such a case not quashing the proceedings would perpetuate abuse of the process of the Court resulting in great hardship and injustice to the accused. In our opinion, exercise of power u/s 482 of the CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.".

The situation as aforesaid, based on the ratio available from the Judgments above, shows that the entire process from the Initial stage to the filing of charge-sheet has been in total disregard to the provisions of law. Hence, the appeal is allowed and the impugned judgement dated 25.2.1997 passed in N.D.P.S. Case No. 6(T) of 1994 is set aside. The accused appellant is hereby acquitted. However, the seized Ganja shall be destroyed by the authority concerned in the manner as may be directed by the Learned Special Judge.