Cav Judgment & Order:
1. By this common judgment and order, I propose to dispose of these two Criminal Appeals Nos. 77/2012 and Criminal Appeal (J) No. 47/2012, arising out of the Sessions Case No. 299(N)/2011, passed by the learned Special Judge, Nagaon, convicting the accused/appellants under Section 20(II)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”), to suffer Rigorous Imprisonment for 10 (ten) years and a fine of Rs. 1,00,000/-, in default to suffer Rigorous Imprisonment for a further period of 2 (two) years.
2. Heard learned Legal Aid Counsel, Mr. KM Haloi in Crl.A(J) No. 47/2012, and Mr. IA Hazarika, learned counsel appearing on behalf of Mr. HRA Choudhury, learned Senior counsel in Crl.A. No. 77/2012. Also heard learned Additional Public Prosecutor, appearing for the State of Assam, Mr. H Sarma in both the appeals.
3. The prosecution case is that, on 29.04.2011, PW1, i.e., Nur Jamal Hazarika, the Officer-In-Charge of Jakhalabandha Police Station received a telephonic message that a truck, bearing registration No. AS-02/E-5557, was carrying suspected ganja from Golaghat side. He made a GD Entry of the information after receipt of the telephonic message. Immediately he passed the information to the SDPO, Kaliabor and C.I. of Police Samaguri. The
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SDPO instructed him to check the vehicle in front of the Police Station. At about 10 am, he stopped the truck coming from Jorhat side and checked the same. On such check, he found that some bags of ganja were concealed under the bags of vegetables in the truck. He recovered 28 bags of suspected ganja in the truck and seized the same after observing necessary formalities. He found the driver and two other persons in the truck. They were taken into custody. He seized the recovered ganja from the accused/appellants after weighing the same. He sent 24 grams from each of the bags to the Forensic Science Laboratory (hereinafter referred to as the “FSL”) for chemical examination, keeping one sample in the Police Station, and the remaining bags of suspected ganja were kept in the Police Station malkhana, after producing the same before the SDJM, Kaliabor.4. On the basis of such fact, PW1 lodged the FIR, marked Ext.1. He also seized the vegetables and the truck, vide Ext.2. He registered the case himself and then entrusted the investigation of the case to the SI of Police, Jonardan Kalita, examined in this case as PW7.5. After completion of the investigation, the Police submitted charge-sheet against the three accused persons.6. The trial Court framed charge against the accused persons, namely, the present two accused/appellants of these two appeals, and one Sri Sunil Mandal, under Section 20(ii)(C) of the Act, to which the accused/appellants pleaded innocence. The prosecution examined seven witnesses in this case and the defense none.7. The evidence of PW1, Nur Jamal Hazarika is that, on receipt of the telephonic information about a truck coming with contraband ganja loaded therein, he made the GD Entry in the Jakhalabandha Police Station, informed the SDPO, Koliabor and the C.I. of Police, Samaguri, and on receipt of instructions from the SDPO, checked the aforesaid truck in front of the Police Station, on the road, and found 1260 kgs of suspected ganja in bags kept beneath the bags of vegetables carried in the truck. He himself filed the FIR and also registered the case. The seizure was made by him and the accused/appellants were also apprehended and arrested by him. Thereafter, he entrusted the investigation of the case to PW7, SI of Police. It is also his evidence that the truck was taken inside the Police Station from the place of detection and the seized suspected ganja was weighed and samples were taken there itself.8. PW7, SI of Police, Jonardan Kalita, in his evidence is found to have stated that the seizure of the truck as well as the contraband and the vegetables were made by him, vide Ext.2. But, the evidence of PW7, shows that he stopped the truck coming from Dimapur side, brought the same to the campus of the Police Station, and conducted the search in the vehicle under instructions. The suspected ganja was seized by the PW1 vide Ext.4, which was kept in Police Station malkhana, and thereafter, PW1 took samples from the bags containing the ganja.9. PW2, Sankar Upadhaya, is found to have stated in his evidence that he is has shop near the Police Station. He saw the police stopping a mini truck in front of the Police Station which carried vegetables and some bags of ganja concealed under the vegetables which were seized, in his presence, vide Ext.3. He witnessed the seizure.10. PW3, Babul Sukla Baidya, who had a grocery shop near the Jakhalabandha Police Station, deposed that one Constable of Jakhalabandha Police Station called him to the Police Station and there he saw a truck. Some vegetables and some bags containing ganja were there in the truck. He is a witness to the seizure, vide Ext.3. But in his cross-examination, he is found to have stated that he was not present at the time of detection, admitting, however, that at the time of his arrival at the Police Station, the bags containing the contraband were in the vehicle, which were kept concealed under the bags containing vegetables.11. PW4, Jamsed Ali, came to the Police Station on the day of occurrence in connection with some other works. The Police showed him the mini truck kept in the thana campus and seized the suspected ganja found in the truck, which he witnessed. This witness exhibited the seizure list, marked , Ext.4, and his signature therein.12. PW5, Saidul Islam, is found to have stated in his evidence that he was in his grocery shop on the day of occurrence. He saw that the police had stopped a vehicle and checked the same. Police called him to the police station, showed him the bags containing ganja and vegetables and unloaded those bags from the truck in his presence. He is a witness to the seizure, made vide Ext.5, and he had also put his signature there and exhibited the same. He was not aware whether the bags seized contained ganja or not. But, on perusal of Ext.5, it is found that this seizure list is not in respect of the seizure of the ganja, rather it is a seizure list in respect of the weighing balance only. Therefore, evidently he is not a witness to the seizure of the suspected ganja.13. On the basis of the above evidence on record, this Court is required to decide whether the accused/appellants possessed the seized contraband weighing 1260kgs.14. It appears from the evidence on record, to be an admitted fact, that the truck carrying the suspected ganja was stopped and checked, on the road, in front of the Police Station at about 10:00 am on 29.04.2011. Therefore, the place of detection of the truck carrying the suspected ganja is a public place undoubtedly, and thus, search and seizure has to be in accordance with the provisions of Section 43 of the Act.15. In the instant case, Section 43 of the Act, appears to have been complied with as the search and seizure was made by the officer designated under Section 42 of the NDPS Act.16. Now the question to be answered is whether the ganja seized in the instant case is a contraband or not. The answer to this query is the evidence of PW6, the Deputy Director, FSL, Guwahati.17. The FSL received a parcel sent to the Director of the FSL in connection with Jokholabandha PS Case No. 45/2011, consisting of 28 exhibits, enclosed in a sealed carton, with paper cover. The facsimile of the seal was found to be “SDPO KBR”. He described the articles as follows:-“28 sealed envelopes marked from Sl. No. 1 to Sl. No.28 having twenty eight closed polythene packets containing 24 gram dry plant materials in each. Marked here as DN-107/2011(1) to DN-107/2011(28) respectively” and the result of his examination is “The Ext.DN107/2011(1) to DN-107/2011(28) gave positive tests for cannabis (ganja)”. This witness has not been subjected to cross-examination by the defense and there is no evidence on record to discard his evidence. Therefore, this Court accepts his evidence. As the samples, examined by PW6, gave positive test for cannabis (ganja), in the absence of evidence to impeach the evidence led by the PW6, there is no doubt that the seized suspected ganja was a contraband.18. The learned Amicus curiae has raised that the mandatory provisions of 57 of the Act, in the instant case, have been blatantly violated by the prosecution.19. As regards the violation of provisions of Section 57 of the Act, it is submitted that after making of the seizure and after arresting the accused/appellants, the officer making the report of seizure, should within 48 hours next after such arrest and seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior officer. The fact that the samples were sent to the FSL by the SDPO, itself means that the SDPO being senior officer, the Investigating Police Officer of this case reported the matter, as required. Otherwise, the samples could not have been sent under his seal and signature. Therefore, there appears no violation of Section 57 of the Act. That apart, the SDPO was personally present while the accused-appellants were apprehended and contraband was seized.20. Now, let us see whether the accused/appellants were in conscious possession of the contraband. In the instant case, it appears from the materials on record that the accused/appellant Sunil Mandal, who has been acquitted of the charge by the learned Special Judge, was the person who brought the vegetables in the truck. The accused/appellant Lutfur Rahman is the driver of the truck. He also had a driving license but he did not drive the vehicle at the relevant point of time, rather, the vehicle was driven by the accused/appellant Emdadul Hoque, who did not have a driving license to drive a truck. It has also come out from the evidence on record that the vehicle, involved in the instant case, was loaded at Dimapur and the Investigating Officer did not take the pain of finding out as to who loaded the truck with vegetables and the contraband at Dimapur. But, the fact remains that the present accused/appellant were found in the vehicle as driver and handyman, respectively. It was a must for them to know as to where the truck would be unloaded or whether the vegetables would be unloaded at one place and the contraband in another, because they must have had to carry the aforesaid vegetables and the contraband to a particular destination only. So, it does not appear that the investigation was directed in correct perspective in the factual background of the case. But, the fact remains that the accused/appellants were the driver and the handyman of the truck which carried vegetables as well as the contraband. Therefore, they were in possession of the same. As stated above, the driver and the handyman were to obviously know as to where the vegetables and the contraband had to be dropped/unloaded and unless there is some instructions to drop/unload the vegetables and the contraband at some specific place, they could not have loaded and carried the vegetables and contraband in a particular direction from Dimapur, Jorhat side towards Nagaon side. Had the truck not being stopped by the Police, it would have definitely reached its destination. Therefore, it can safely be said that the accused/appellants were in conscious possession of the contraband. Therefore, the conviction of the accused/appellants recorded by the learned Special judge is based on evidence on record and needs no interference.21. The contraband seized from the possession of the accused/appellants weighed 1260 kgs., and as such, the contraband was of commercial quantity. The learned Special judge imposed the punishment of Rigorous Imprisonment for 10 (ten) years to each of the accused/appellants with a fine of Rs. 1 lakh each and, in default of payment of fine, Rigorous Imprisonment for 2 (two) years each under Section 20(ii)(C) of the Act.22. The sentence, as aforesaid, is the statutorily prescribed minimum sentence. Therefore, the sentence also does not require interference. In view of the above, the judgment and order, dated 27.02.2012, in Sessions Case No. 299(N)/2011, passed by the learned Special Judge, Nagaon is affirmed and upheld.23. In view of the above both the appeals, being Criminal Appeal No. 77/2012 preferred by the accused /appellant Lutfur Rahman and Criminal Appeal (J) No. 47/2012 preferred by Md. Emdadul Hoque are dismissed.24. The accused/appellant Lutfur Rahman, who is on bail granted by this Court, in Crl.MC No. 414/2012, on 28.08.2012, is directed to surrender before the learned Sessions Judge (Special Judge), Nagaon to serve out the sentence passed against him in Sessions Case No. 299(N)/2011. And the accused/appellant Md. Emdadul Hoque, who is on bail granted by this Court in Criminal Appeal (J) No. 47/2012, on 28.08.2012, is directed to surrender before the learned Sessions Judge (Special Judge), Nagaon to serve out the sentence passed against him in Sessions Case No. 299(N)/2011. Bail granted to them stands cancelled.25. Send back the LCR along with a copy of this judgment.26. This Court appreciates the legal assistance rendered by learned Amicus Curiae and directs payment of remuneration of Rs. 7,000/- to the learned Amicus Curiae.