Sri Dipak Kumar Singh vs State Of Assam

Hitesh Kr. Sarma, J

This jail appeal has been preferred by the appellants, Sri Swapan Kumar Roy and Sri Dipak Singh, challenging the judgment passed by the learned

Additional Sessions Judge No. 2, Kamrup (M), Guwahati, in Sessions (Spl) Case No. 184(K)/2009, convicting both the appellants for offence

punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as â€NDPS Actâ€) and

sentencing them to rigorous imprisonment for 12 years each and a fine of Rs. 1,00,000/- each.

The case of the prosecution may be briefly stated as follows;

Based on specific intelligence output, received on 02.06.2009, regarding a truckbearing Registration No. WB-25B-4251, carrying about 3000 kg of

Ganja, a team of officers from the Directorate of Revenue Intelligence (hereinafter DRI) intercepted the truck at Azara, Guwahati, but the truck sped

away and evaded the interception. The team of officers chased the said truck and located it near Panbari BSF Camp in the District of Dhubri,

Assam, on 03.06.2009. The driver Sri Swapan Kr. Roy and the handyman Sri Dipak Kr. Singh were found alongwith the truck. The driver Sri

Swapan Kr. Roy confessed that Manipuri Ganja has been kept concealed in the coal laden truck and that the Ganja belonged to one Baharuddin @

Bahar.Â

Thereafter, the DRI officers brought the loaded truck to Guwahati alongwith the driverSri Swapan Kr. Roy and the handyman Sri Dipak Kr.

Singh. Upon checking of the truck, in presence of the accused persons and two independent witnesses, DRI officials recovered 211 packets of

Ganja, weighing 3549 kg, under a load of 23 MT coal. Consequently, the ganja, the coal, the truck and the relevant papers of the truck, were seized,

vide Case No. 01/NARC/GANJA/DRI/GAU/2009-10, dated 04.06.2009.Â

Upon completion of the investigation, a formal complaint was lodged against theaccused-appellants, Sri Swapan Kr. Roy and Sri Dipak Kr. Singh

alongwith three other accused, namely, Baharuddin @ Bahar of Nagaon Assam, Mrs. Provabala and Sri Harekrishna Bala @ Moran Bala, for

offences under Section 8(C)/20(b)(ii)/29 of the NDPS Act. Accused Baharuddin @ Bahar of Nagaon Assam, Mrs. Provabala and Sri Harekrishna

Bala @ Moran Bala were shown as absconders.Â

On receipt of the complaint, attendance of accused Sri Harekrishna Bala @ Moran Balawas procured on the strength of production warrant to

Special Correctional Home, Berhampur, West Bengal. The presence of accused Baharuddin and Provabala could not be secured despite all

coercive processes, and hence, the case against these two accused was split up from the others.Â

Copies of relevant papers under Section 208 Cr.PC were furnished and evidence beforecharge was recorded, and thereafter, charges under

Section 8(c)/20(b)(ii)/29 of the NDPS Act were framed against accused (1) Dipak Kr. Singh, (2) Sri Swapan Kr. Roy, and (3) Sri Harekrishna Bala

to which they pleaded not guilty and claimed to be tried.Â

In the course of trial, prosecution examined 6 (six) witnesses to substantiate thecharges. It appears that trial was again split up in respect of

accused Harekrishna Bala @ Moran as his presence could not be secured despite several coercive processes. Therefore, the trial was against the

present two accused-appellants. Be that as it may, accusedappellants Sri Dipak Kr. Singh and Swapan Kr. Roy were examined under Section 313

Cr.PC. Their plea appears to be of total denial. They also declined to adduce any evidence in their evidence.

Upon hearing the respective learned counsel for both sides, the learned trial courtdelivered the impugned judgment convicting and sentencing the

accused-appellants, as aforesaid.

We have perused the records of the learned trial court including the evidence and theimpugned judgment. We have also heard Ms. R.D.

Mazumdar, learned Amicus Curiae for the accused-appellants and Mr. S.C. Keyal, learned ASGI appearing for the respondent.Â

PW1 Dr. Gajendra Nath Deka, Dy. Director, Drugs and Narcotics division at DFSL,Assam, Kahilipara, in his evidence, deposed that on

06.06.2009, he received a parcel in connection with the DRI Case No. 01/NARC/Ganja/DRI/Gau/2009-10 consisting of three exhibits in a sealed

envelope, marked as A1, B1 & C1, containing 25 grams dry plant materials each. He also deposed that on examination he found that these

materials tested positive for cannabis (ganja).Â

The questions which need to be looked into are whether there were any procedurallapses to the prejudice of accused-appellants which would

vitiate the trial, and secondly, whether the prosecution could prove possession of the contraband by the accused-appellants.

PW2, Sri Dhrubajyoti Sarma, Inspector of Customs & Central Excise, is the seizingofficer of this case. He deposed that on 02.06.2009, at about

5:10 pm, Sri S.K. Mahanta, the Deputy Director DRI, received a specific information to the effect that a truck, bearing Registration No. WB-25

B/4251, was about to carry 200 packets of ganja towards West Bengal. The information was reduced to writing. PW2 exhibited the said

information as Ext.

3. Thereafter, a team, consisting the DRI officials, namely, Sri Gautam Das, Sri Sujit Das, Sri A.K. Baruah and Sri U. Kashyap and others, was

deputed to apprehend the said truck. Further evidence of PW2 is that the team of DRI Officials were waiting at Azara, on N.H. 37, along with two

local persons namely, Srikanta Nath and Sri Bipul Handique. On 03.06.2009, at about 1:00 am, they saw the said truck while coming from Jalukbari

side. The truck was asked to stop but it sped up instead though the team of DRI Officials intercepted the truck alongwith the accused-appellants at

Panbari, on the following day, at about 8:00 am.  As deposed to by PW2, the accused-appellant Swapan Kr. Roy confessed to have been carrying

ganja in the coal laden truck. The truck was brought to Patharquary at Guwahati. In the presence of accused persons, witnesses and DRI

Officers, the coal was unloaded where-after 211 packets of ganja covered in polythene bags were recovered from the truck. The total weight of

those packets was 3549 kg. PW2 also deposed that representative samples from the seized ganja packets were sent to Forensic Science

Laboratory for chemical examination, vide Ext.7, forwarding letter, and the test memo, vide Ext.8. On 05.06.2009, he informed the matter to his

higher authority, vide Ext.9. The said ganja along with the truck and its documents were seized under Section 43 of the NDPS Act.Â

From the cross-examination of PW2, it appears, the defence has taken a plea ofprocedural non-compliances, for instance, violation of provisions of

Section 42 of the NDPS Act, non-examination of independent witnesses at Patharquary at the time of the seizure of the contraband ganja in violation

of Section 100 Cr.PC.Â

The evidence of other witnesses are almost on similar line as that of PW2, and hence,not repeated here for the sake of brevity. The other

witnesses have deposed to about the ownership of the truck and the ultimate consignee of the ganja. These two aspects are not relevant in the

present context since the trial pertains only to the accused-appellants who are the Driver and the Handyman of the seized truck.Â

Ms. Rita Das Mazumdar, learned Amicus Curiae argued with reference to Section 52Aof NDPS Act, 1985 and relied on the following authorities;

         i. State of Rajasthan Vs Gurmail Singh, (2005) 3 SCC 59        Â

        ii. Sri Chanam Metei Vs Union of India, 2010 (3) GLT 361     Â

       iii. Union of India Vs Bal Mukund, (2009) 12 SCC 161

In Gurmail Singh (supra), the seized articles were kept in the malkhana. The malkhana register was not produced to prove that it was so kept in

the malkhana till it was taken over by PW6. This apart, no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for

the purpose of comparing with the seal appearing on the sample bottles. The Hon’ble Supreme Court found that there is no evidence to prove

satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. On

these facts the Hon’ble Supreme Court upheld the acquittal of the accused, as ordered by the High Court.Â

In Chanam Metei (supra), this Court had held that The possibilities of tampering with the evidence cannot be ruled out when the seized Ganja

including sample packets were not sealed or kept in the custody of the Officer in charge of the concerned police station and no application was made

before the Magistrate under Section 52A(2) for certifying correctness of the inventory and to allow to draw representative samples of such drugs of

the seized articles in the presence of Magistrate and certifying the correctness of the list of samples drawn.Â

In the present case, even though the sampling was done in terms of the mandate of Section 52A yet it is evident from the record that such samples

were not produced before the Magistrate in accordance with the mandate of Section 52A(2) of NDPS Act.Â

Now, in view of the law laid down in the case of Gurmail Singh (supra) and Chanam Metei (supra), the sampling done in the manner provided

under Section 52A(2) provides credibility to the fact that samples sent for forensic examination and the samples seized were the same. Since, in the

present case, procedure prescribed under Section 52A(2) has not been complied with there is no evidence to prove satisfactorily that the seals found

by the PW1 were in fact the same seals as were put on the sample packets.Â

So far as the arguments with respect to Ext.11 and Ext.12, the statements made bythe appellants are concerned, apparently these statements were

taken at Guwahati after the apprehension of the appellants. In Bal Mukund, (supra) the Hon’ble Supreme Court has held that if statement by

the accused is made while he was in custody, it cannot be said that he had made a voluntary statement which satisfies the conditions precedent laid

down under Section 67 of the Act. In view of the law laid down in Bal Mukund, (supra), the statements, vide Ext.11 and 12, have no evidentiary

value.Â

Now, admittedly, the seizure witnesses were not examined by the prosecution. So far as non-examination of independent witnesses are

concerned, the Hon’ble Supreme Court in the case of Noor Aga v. State of Punjab, (2008) 16 SCC 417 held that it is true that what matters is the

quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied

with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of

the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly

unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all

the more necessary inasmuch as there exists a large number of discrepancies in the statements of official witnesses in regard to search and seizure.Â

In the present case, apart from the irregularity in the statements made under Section67 of the NDPS Act, the sampling of the seized contraband

was also done in contravention of law. The identity of the appellants and the fact that they were in the vehicle were sought to be established only by

their own statements under Section 67 and when the statements do not inspire confidence the very fact of their conscious possession becomes

doubtful. In such a scenario the examination of independent witnesses to prove the seizure and the statements made by the appellant was

imperative. No evidence has been led by the prosecution as to the whereabouts of the independent witnesses and even the record does not reveal

that any effort was made by the prosecution to produce and examine the independent witnesses claimed to have been examined during

investigation.   Hence, under these circumstances, the non-examination of independent witnesses surely cast a doubt in the prosecution case.

In view of the discussions made above, the appellants are entitled to benefit of doubt. The impugned judgment, thus, calls for interference.Â

Appellants are, accordingly, acquitted of the charges on benefit of doubt and are set atliberty forthwith.

The appeal is accordingly allowed.

Send down the LCR along with copy of this judgment.

A copy of the judgment shall also be furnished to the Superintendent, District Jail,Kamrup, Guwahati, for furnishing a copy thereof to the

accused/appellants.Â

This court records its appreciation for the assistance rendered by learned Amicus Curiae.  The learned Amicus-curiae be paid an amount of

Rs. 7,000/- as remuneration.