Nabin Daimari and Another vs State of Assam

D. Biswas, J.—This appeal is directed against the judgment and order dated 2.11.96 passed by the learned Special Judge, Darrang in Special Case No. (N) 22/94 arising put of G.R. Case No. 29/94 u/s 20(b)(1) of the N.D.P.S. Act convicting and sentencing both the Appellants to undergo Rigorous Imprisonment for 2 years 6 months and to pay a fine of Rs. 100/- each, in default to undergo further Rigorous Imprisonment for one month each Being aggrieved thereby, the Appellants have preferred this appeal.

I have heard Mr. SC Biswas, learned Counsel for the Appellants and Mr. J Singh, learned Public Prosecutor.

During the course of argument Mr. Biswas, learned Counsel pointed out that the investigation set in motion by the police officer stood, vitiated Hot want of such powers under the NDPS Act, According to the learned Counsel, there is no independent witness in the instant case to prove the prosecution case and the learned Special Judge relied upon the solitary statement of the police officer examined as P.W.1 in rendering the verdict of guilt Besides, it has been pointed out that the mandatory provisions of Section 50 have not been complied with in the instant case. In addition non-compliance of Section 41, 42, 44, Section 52, Section 56, etc. have also been complained.

I have perused the impugned judgment. There is no doubt that the learned Special Judge had to rely upon the evidence of the solitary witness i.e. P.W,1 since P.W.2 did not make any incriminating statement against the accused Appellants .The question whether the conviction can be based on the evidence of the I/O is of significance. Ext3, the report of the Forensie Laboratory shows that the contents seized by the police were cannabis (ganja) yet the question remains whether conviction of the Appellants could be sustained in law in view of the alleged impropriety in the investigation. It is, therefore, necessary to examine the provisions of the Act and the interpretations thereof at the first instance.

In State of Punjab Vs. Baldev Singh, etc. etc., the Supreme Court held that non-compliance of the provisions of Section 50 may render the recovery of the contraband and the conviction a suspect, and sentence of an accused on such recovery will be bad and unsustainable in law. The Supreme Court further held that use of evidence collected in breach of the safeguards provided u/s 50 of the Act at the trial would render the trial unfair. In In the Matter of: Ahmed Vs. State of Gujarat, the Supreme Court made it more specific that in order to ensure fairness in the search and compliance of Section 50, no differentiation can be made whether the search is made by the empowered officer or the authorised officer working under the empowered officer.

If we go by the decisions of the Supreme Court referred to above, it would be clear that the provisions of Section 50 have to be complied with even if the search is made by the empowered officer, otherwise the articles seized will be a suspect. In the instant case, the investigation has been done by the P.W. 1 who happens to be Sub-Inspector of the State Police posted at the relevant time at Tangla Police Station. He is not an empowered officer. He is also not an authorised officer to carry out the search, seize the articles and to prosecute the offenders under the provisions of the N.D.P.S. Act. In fact, sufficient time was granted to the learned Public Prosecutor to clarify as to how the investigation initiated and completed by the Sub-Inspector of the State Police could be sustained in view of the provisions of the Act. The learned Public Prosecutor, however, could not give any satisfactory reply.

There may not be any doubt with regard to the fact that the I/O had chased and seized the Ganja thrown away by the accused-Appellants. But PW2, cited a witness to such seizure, has not deposed anything in favour of the prosecution. The case suffers from defects in two fronts, Firstly, the person who had investigated the case is neither an empowered officer nor an authorised officer having the powers to investigate and file chargesheet under the Act. That apart, there is no independent witness to support P.W. 1, the I/O in his statement that he had chased the accused Appellants and seized the Ganjas thrown away by them. Apparently, the provisions of Section 50 of the N.D.P.S. Act have not been complied with.

Under the circumstances this Court has no option but to allow the appeal and reverse the impugned judgment

In the result, the appeal is allowed and the impugned judgment of conviction and sentence dated 2.11.96 is hereby set aside. The accused Appellants are set at liberty. The seized articles are, however, confiscated to the State to be destroyed in accordance with law.