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MD. EMDADUL HOQUE & ANOTHER V/S THE STATE OF ASSAM, decided on Monday, July 10, 2017.
[ In the High Court of Gauhati, Criminal Appeal (J) No. 47 of 2012 & Criminal Appeal No. 77 of 2012. ] 10/07/2017
Judge(s) : HITESHKUMAR SARMA
Advocate(s) : K.M. Haloi, learned Legal Aid Counsel, I.A. Hazarika learned Senior Counsel, HRA Choudhury. H. Sarma, Addl. PP.
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    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 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.