H. Baruah, J.@mdashIn challenge is the judgment and order of conviction and sentence dated 13.07.2009 passed by learned Special Judge, Kokrajhar in Special Case No. 5 of 2006 whereby and whereunder appellants namely, Sri Ramesh Sahu and Sri Harjeet Singh were convicted under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and sentenced to suffer R.I for 10(ten) years and fine of Rs. 1 lakh in default to suffer R/1 for 2(two) years each. The period of detention of the appellants in custody during investigation/trial was directed to be set off from the substantive sentence of imprisonment
2. The impugned judgment and order of conviction and sentence is challenged by the appellants primarily on the following grounds:
(1) that the learned Trial Court committed grave error in law as well as on facts while convicting the appellants under Section 20(b)(ii)(C) without appreciating the evidence of record both oral and documentary in its proper perspective;
(2) that the learned Trial Court wrongly convicted the appellants holding that they were in conscious possession of the seized Ganja kept in the secret chamber of the truck. The learned Trial Court while holding as such failed to consider the status and position of the appellants and also overlooked the ownership of the vehicle in whose secret chamber the Ganja had been kept concealed. Appellants being the driver and the cleaner of the truck in the circumstances of fact of concealment of the Ganja in its secret chamber cannot lead any inference that the appellants had the conscious possession of the seized Ganja;
(3) That the provision of Section 52A(2)(a)(b) and (c) of the NDPS Act have not been followed which cast a mandate on the part of the prosecution to prepare an inventory of the articles seized from the persons concerned which has to be certified by a Magistrate and photographs taken of the seized articles in connection of the case. The samples so taken for the purpose of sending the same to the laboratory for chemical analysis were not taken before a Magistrate. Prosecution also failed to comply with the provisions of the section for not obtaining a certificate from the Magistrate in regard to the seizure of the contraband from the possession of the appellants;
(4) that the learned Trial Court also failed to take into consideration regarding noncompliance of provision of Section 42 of the NDPS Act which mandates recording the grounds for believing the possession of the psychotropic substance and also for sending information to the superior officer immediately; and
(5) That the learned Trial Court also failed to consider the factum of delay in sending the sample to the Forensic Science Laboratory (for short FSL) for analysis and report.
3. Before entering into the merit of this appeal it would be apposite for this Court to place the case of the prosecution for the purpose of appreciation of the facts and evidence on record in regard to the seizure of Ganja from the truck kept concealed in a secret chamber.
Appellant Ramesh Sahu was the driver of the truck bearing registration No. AS09A1135 while appellant Harjeet Singh was the cleaner of the said truck. On 28.3.2006 when the truck as indicated above loaded with coke entered into Assam through Srirampur Entry Gate, Inspector of Excise Sri M.M. Mushahary stopped the truck at the check gate for routine checking. While checking 52 packets of suspected Ganja weighing 527.500 kilograms were discovered in a secret chamber of the truck and seized the same along with vehicle. The driver and the cleaner of the truck named hereinbefore were also arrested by Sri M.M. Mushahary. The seized Ganja, the seized truck along with arrested appellants were produced before the Court of Special Judge, Kokrajhar, who remanded the appellants to jail custody. Samples were drawn from the seized suspected Ganja and sent the same to the chemical examiner for analysis and report. Inspector of Excise, Sri M.M. Mushahary after obtaining the necessary report from the chemical examiner submitted offence report against the appellants before the learned Special Judge, Kokrajhar. The learned Special Judge, Kokrajhar having found prima facie case against the appellants framed charge under Section 20(b) (ii) (C) to which they pleaded not guilty when read over and explained. Both the appellants claimed their trial.
4. Prosecution examined 6(six) witnesses in all. Appellants were examined under Section 313 of the Cr.P.C. The trial Court after meticulous consideration of the facts and evidence on record with oral and documentary by the impugned judgment and order convicted the appellants under the charge under Section 20(b)(ii)(C) of the NDPS Act and recorded the sentence as indicated above.
5. We have heard Mr. K. Sarma, learned counsel for the appellants as well as Mr. K. Munir, learned Addl. P.P. for the State of Assam.
6. Mr. K. Sarma, learned counsel for the appellants at the very out set of his argument submitted that the impugned judgment and order of conviction and sentence cannot sustain in view of the grounds as indicated herein before amongst others. It was argued by him at the first instance that the prosecution failed to prove before the trial Court that it complied with the provisions of Section 52A(2)(a)(b) and (c). It was argued by Mr. Sarma that where any narcotic drug and psychotropic substance has been seized by the officer, the officer empowered under Section 53 of the NDPS Act is to prepare an inventory of such narcotic drug or psychotropic substance containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drug or psychotropic substance or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identify of the narcotic drug and psychotropic substance in any proceeding under this Act and shall make an application, to any Magistrate for the purpose of certifying the correctness of the inventory so prepared or taking, in the presence of such Magistrate, photographs of such drug or substance and certifying such photographs as true or allowing to draw representative samples of such drug or substance, in the presence of such Magistrate are certifying the correctness of any list of sample: so drawn. In the present case as contends by Mr. K. Sarma, no such requirements were complied with by the seizing officer, Mr. M.M. Mushahary, the Inspector of Excise. Therefore, this mandatory provision when not followed by the seizing officer, the factum of seizure of Ganja from the truck kept concealed in a secret chamber driven by the appellant Ramesh Sahu along with Harjeet Singh, the other appellant cannot be substantiated as against the appellants. It was submitted by Mr. Sarma that the seizing officer is duty bound to prepare an inventory of the drug and psychotropic substances giving all details as indicated in sub section 2 of Section 52 A of the NDPS Act. The Seizing Officer is also duty bound to make application to any Magistrate for the purpose of certifying the correctness of the inventory and drawing of representative samples in presence of such Magistrate and also photographs of the substances certifying the same to be true. All these procedures are required to be followed to substantiate that narcotic drug and psychotropic substance had been seized. The procedure being not followed, no criminal liability can be attributed against the appellants. Referring to subsection 4 of Section 52A of the Act Mr. Sarma submitted that the inventory so prepared and the photographs so taken of the narcotic drug and psychotropic substance and list of samples drawn that certified by the Magistrate can be used as primary evidence in respect of commission of such offence. It was submitted by Mr. K. Sarma that nowhere in the evidence on record compliance of the provisions of sub section 2 of Section 52A of the NDPS Act can be traced. For noncompliance of this provision the appellants facing the charge under Section 20(b)(ii)(C) cannot be booked and sentenced accordingly. It was submitted by Mr. Sarma that on this ground alone appellants are entitled to acquittal.
7. Mr. Sarma in support of the above contention placed reliance in the decision rendered in the case between Sh. Chanam Ran/it Meitei Vs. Union of India reported in 2010(3) GLT361.
8. From the scrutiny of the evidence of Mr. M.M. Mushahary it would appear to us that on 28.03.2006 at about 2 pm while he was on duty at Srirampur Excise Check Gate along with his staff and was checking the vehicles thereat they had to check the truck bearing registration No. AS09A1135 in routine manner and while checking noticed a secret chamber from the rear up to the cabin wherein they found 52 packets of suspected Ganja wrapped with polythene. The vehicle was found to be loaded with coke. The aforesaid packets while weighed the weightment turned to be about 527.500 kilograms. Vehicle was driven by appellant Ramesh Sahu who came to be accompanied with the cleaner, the appellant Harjeet Singh. Both the appellants were arrested. He also stated that samples were taken from the suspected Ganja seized for the purpose of chemical examination and report. He also stated that the documents of the vehicle, the vehicle itself and 52 packets of suspected Ganja were all seized in presence of the witnesses vide seizure memo Ext. 1. However we could not find anything therein regarding the compliance of provisions of sub section 2 of Section 52Aof the Act. Mr. K. Sarma, therefore, taking ratio laid down in the case (supra) submitted that violation of the provision would render the conviction illegal and not sustainable in law. It was submitted by him that the primary object of incorporation of sub section 2 of Section 52A is to produce primary evidence in respect of commission of the offence by the offenders. Though the truck, the seized packets containing suspected Ganja and the appellants were produced before the Special Judge, Kokrajhar, such production necessarily would not mean the compliance of the provisions of sub section 2 of Section 52A of the Act. All the formalities as contained in sub section 2 of Section 51A are required to be followed at the place where the narcotic drugs and psychotropic substances recovered. On the seizure of the narcotic drugs and psychotropic substances representative samples of the same are required to be drawn in presence of Magistrate per provisions of clause (b) of sub section 2 of Section 52A with a certificate about correctness of the same. Further photographs of such conveyance or substances are required to be taken and certified by a Magistrate. This provision being not followed by Sri M.M. Mushahary, the Inspector of Excise, the factum of seizure, preparation of inventory, taking of photographs, drawing of samples cannot be hold to have been proved by the prosecution. During course of argument Mr. Sarma also submitted that the Magistrate as indicated in sub section 2 is required to be a Judicial Magistrate. In support of his contention referred to Section 3 of the Cr.P.C. It was argued by him that the word "Magistrate" as employed in sub section 2 of Section 52 A of the NDPS Act being not qualified by any words shall be construed, out side the metropolitan area, to be a Judicial Magistrate. The Excise Inspector, the seizing officer having not followed the provision of sub section 2 of Section 52 A of the NDPS Act we do not propose to discuss in regard to "Magistrate" as employed in sub section 2 of the Section 52A of the NDPS Act. It would be a futile, exercise in view of non compliance of the provision of sub section 2 of Section 52 A of the NDPS Act.
9. In regard to conscious possession which is considered to be one of the grounds for appeal, it was argued by Mr. K. Sarma, learned counsel for the appellants that the learned trial Court wrongly applied the provision of Section 35 of the NDPS Act, the presumption of culpable mental state. In regard to the keeping and transportation of the Ganj a concealing the same in the secret chamber of the truck it was argued by Mr. Sarma that the apellants are the driver and the cleaner of the truck coke being loaded therein. Ganja had not been seized by the excise personnel under the coke but the same was discovered in a secret chamber of the truck and seized. This being the evidence on record, according to Mr. Sarma would not be justified to say that the appellants had the conscious possession of the Ganja. The excise Investigating Officer also arrayed the owner of the truck as one of the accused but for his abscondance, the case of the appellants was segregated and tried. Had the owner been tried together along with the appellants the decision of the case would have gone otherwise Mr. Sarma argued. It was further argued that to record a conviction under Section 20(b)(ii)(C) there must be conscious possession of the article(s) seized. Mere custody without awareness of the nature of such possession would not render the possessor liable. Fiftytwo packets of Ganja were evidently recovered from the secret chamber of the truck. It was concealed thereat. In the facts and circumstances of the case, the appellants being the driver and the cleaner of the truck, it was argued, might not have the conscious possession or knowledge of keeping the same in the secret chamber. The factum of recovery of the Ganja from the secret chamber of the truck driven by the appellant Ramesh Sahu along with the cleaner Harjeet Singh would not necessarily infer a presumption that they were in conscious possession of the same. For the applicability of the Section 35 of the NDPS Act, presumption is required to be proved, the culpable mental State of the accused/possessor by cogent and sufficient evidence. Mere possession without culpable mental state there can be no presumption regarding possession of the seized article. If the prosecution succeeds to prove culpable mental state of the accused, burden shifts to the accused to prove that he/she had no mental state with respect to the act charged as evidenced in the prosecution. In this case we have also come across that the offence report is also laid as against the owner of the vehicle. There is no evidence forthcoming in regard to the conscious possession of the Ganja kept concealed in the secret chamber of the truck, therefore, the finding of the learned trial Court that appellants had been conscious possession of the Ganja that kept concealed in the secret chamber would not sustain. On account of recovery of the Ganja from the truck a presumption cannot be drawn as against the appellants that they had the conscious possession of the same. Mr. K. Sarma learned counsel for the appellants in support of his contention i.e. in regard to conscious possession relied in the decisions reported in 1998(3) GLT4: Lalpvasad Karki & Ors. Vs. State of Assam and 2009 SAR (Criminal) 275: State of Punjab Vs. Hari Singh & Ors. mparagraph15 of the judgment rendered in Lalprasad Karki''s case (supra), this Court held as under:
"15. Going through the whole discussion nowhere does the learned trial Judge appears to have addressed himself to the crucial question whether the appellants were in conscious possession of the contraband articles. That is the initial burden of the prosecution. The seizure witneses P Ws. 4 and 5 who were summoned by the D.S.P. afford corroborative evidence as regards search and recovery from the jeep. According to these witnesses as well the accused appellants were standing near the vehicle at the time of recovery. What is significant to be noted that as per FSL''s report, Exts.6,7 sealed packets of ganja containing about 24 g. dried plant were received by the Laboratory. Even the Officerincharge of the PS, PW2 does not in his evidence state that while seizing the articles whether he had sealed the same on the spot or for that matter anywhere else later on. The sealing part has not been deposed to by the star witness let alone other attesting witnesses like PWs 4 and 5. In this state of evidence it is an extremely suspicious circumstances as to when how and by whom the packets were sealed. If at all these were sealed what was the seal. Impression, whether the same were sent to the laboratory, whether other was any comparison done by anyone of the seal on the packets, whether the same were found to be intact, whether the sample was prepared on the spot and sealed on the spot so as to avoid any possibility of the same being tampered with. The sealing part has not been adumbrated in the statement of any of the witnesses. All these evidence is totally missing in the instant case." In the case (supra) this Court held that possession of the contraband article must be conscious. Mr. K. Sarma, learned counsel for the appellants also submitted strenuously that the appellant having not been questioned relating to conscious possession while examined under Section 313 of the Cr.P.C., omission to put such question vitally effects the case of the prosecution. The evidence being in nature that 52 packets of Ganja had been seized from the secret chamber kept in concealment of the truck being driven by the appellant Ramesh Sahu along with his cleaner appellant Harjeet Singh and the same having been seized and samples drawn and the samples giving positive test for cannabis, questions are required to be put to the accusedappellants in regard to such concealment, recovery, seizure, drawning of sample etc. to obtain a reply in regard to conscious possession. The appellants being not examined on this point under Section 313 Cr.P.C., claim of the prosecution that the appellant had the conscious possession of the Ganja would not come on the way of the appellants asking this forum to acquit them from the charge. Mr. Sarma taking the ratio of the Hari Singh''s case (supra) contended that it is a boundent duty to prove conscious possession, mere custody without awareness of the nature such possession would not render the accused liable to be convicted under the charge framed against them. Moreover, no question having been put in regard to conscious possession of the appellants while under examination under Section 313 Cr.P.C. the case of the prosecution is vitally affected. During course of argument it was further argued by Mr. Sarma that possibility of keeping 52 packets of Ganja in the secret chamber of the truck by its owner cannot also be ruled out. Therefore, the presumption under Section 35 of the Act cannot be drawn against the appellants.
10. Section 42 of the NDPS Act deals with the power of entry, search, seizure and arrest without warrant or authorization. While Section 43 deals with power of seizure and arrest in public place. In our present case such search and seizure was made by the Excise Inspector, Sri M.M. Mushahary being empowered under Sections 42 and 43 of the NDPS Act. It would be appropriate to say at this stage that such search and seizure was made during routine check at the Srirampur Excise Check Gate by the Inspector Sri M.M. Mushahary along with other staffs. It was submitted by Mr. K. Sarma that the factum of recovery and seizure of Ganja from the secret chamber of the truck driven by the appellant, Ramesh Sahu along with his cleaner, Harjeet Singh, the another appellant having not been intimated to his superior officers is hit by sub section 2 of Section 42 of the NDPS Act. Sub section 1 of Section 42 speaks for entry, search, seizure and arrest without a warrant or authorization. It says any officer not being an officer superior in rank to a peon or sepoy or constable of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force or any such officer of the revenue, drugs control, excise, police or any other department of the State Government empowered in that behalf by general or special order if has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug and psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset enter into and search any such building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry and seize such drug or substance and all materials used in manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the Act and any documents and other articles which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance and detain an search if he thinks proper arrest any person whom he is reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sunrise after recording the grounds of his belief.
11. Admittedly, the search and seizure was made during day time while the Inspector of Excise and staffs were in regular checking at the check gate, therefore, the requirement of personal knowledge or information given by any person did not come into play in respect of the search and seizure of the Ganja from the truck. The provision of Section 42 would also not apply in our present case. Therefore, as contended by Mr. K. Sarma there is violation of provisions of sub section 2 of Section 42 of the NDPS Act cannot be accepted. The Excise Inspector Mr. M.M. Mushahary being discharge his duty at Srirampur check gate in routine checking of the vehicles he checked the truck as indicated above, wherefrom 52 packets of Ganja had been recovered kept concealed in a secret chamber of the truck. Said M.M. Mushahary did not have any information in writing under sub section 1 of Section 42 of the Act, the argument advanced by Mr. K. Sarma, in the context of violation of sub section 2 of Section 42 of the NDPS Act canot be accepted in view of non furnishing of any information to him in writing.
12. The next argument advanced by Mr. K. Sarma is in the context of sending of sample to the FSL for chemical analysis and report. It was argued by him that the prosecution tried to impress upon the Court that the sample was sent to the FSL through P W5. Evidence of PW1, M.M. Mushahary speaks of sending of the sample through P W5 but PW5 while examined on oath remained silent in regard to sending of the sample through him to the FSL for chemical analysis. In the facts and circumstances it was argued by Mr. Sarma that it is unknown to the Court where the sample was actually keep and through whom the same had been sent to FSL for chemical analysis and report. Samples were taken on 28.3.2006 and the same so sent was received by the FSL on 30.3.2006 as per evidence of PW 6. When PW 5 remained silent in respect of taking of the sample by him from P W1 and when the sample was evidently received on 30.3.2006, evidence is wanting for intervening period where it was kept. It was argued by Mr. Sarma that possibility of tempering of the sample cannot be ruled out in the face of the evidence on record. Seizure was admittedly made in Kokrajhar district and sample was taken on the same date i.e. on 28.03.2006. PW1 in his evidence stated that on the same date i.e. 28.03.2006 the sample was sent to FSL through PW5. PW 5 however, denied rather remained silent regarding taking of sample by him to FSL. PW 6 in his evidence stated that he received the sample on 30.03.2006, therefore, apparently there is a delay in receiving the sample by the FSL. Evidently sample was not taken by PW 5 himself. In view of evidence of PW 5, who stated to have not carried the sample, the sample must have been sent through some other person or kept some where else by the PW1. As contended by Mr. Sarma that there is possibility of tempering of the samples in the face of the evidence on record cannot be ruled out. Mr. Sarma argued that delay in sending the sample to the FSL for chemical analysis would effect the prosecution case at its root. Per evidence of PW1, the rest of the samples drawn were kept in Malkhana. The Malkhana registered being not proved at the trial, it was argued by Mr. Sarma that the rest of the samples had been kept in the Malkhana cannot be believed. Admittedly to substantiate the keeping of the rest of the representative samples in the Malkhana, in absence of the Malkhana register, no other evidence is put forward by the prosecution.
13. Contrary to the submissions advanced by Mr. K. Sarma, learned counsel for the appellants, Mr. K. Munir, learned Addl. P.P. representing the State of Assam submitted that the facts and circumstances appearing the face of the record raised a presumption against the appellants under Section 35 of the NDPS Act in view of recovery of 52 packets of suspected Ganja from the secret chamber of the truck. Such keeping of the Ganj a in the secret chamber gives a presumption against the appellants that they had the information and knowledge about keeping of 52 packets of Ganja in the secret chamber they being driver and cleaner of the truck when it was under their control. Mr. Munir insuport of his contention relied in the decision of the case between State of Punjab Vs. Lakhwinder Singh & Anr., reported in (2010) 4 SCC 402. In the case (supra) the respondents were found sitting on bags containing poppy husk at an early hour i.e. 8 a.m., near a religious place and on seeing police party trying to hide behind the bags. The Apex Court while deciding the case held, the aforesaid facts proved and established that the respondents were in conscious possession of the bags that apart they were unable to give satisfactory answer as to how and why they came from Haryana and found sitting on the bags of poppy husk. The facts in the case (supra) appear to be not identical to the facts'' of our instant case. Therefore, ratio laid down in the case (supra) by the Apex Court would not be applicable in our present case. The facts appearing in our present case are quite different from that of the facts of Lakhwinder Singh''s case (supra). Mr. Munir also relied the ratio laid down by the Apex Court in the case of Dalel Singh Vs. State of Haryana; reported in (2010) 1 SCC 149. hi the case (supra) search and seizure of charas was made from the appellant''s house. The house, from which the seizure of charas was made, was proved to be used by the appellant and the charas being seized on search from the house of the appellant it was held that the appellant had the conscious possession of the charas. In our instant case though the vehicle was driven by the appellant, Ramesh Sahu along with the cleaner, Harjeet Singh, the Ganja evidently seized from the secret chamber of the truck, such seizure would not render a presumption that the appellants had the conscious possession of the same and more over, the trial Court did not put any question in regard to conscious possession of the Ganjathat evidently seized from the truck bearing registration No. AS09AO1135. The ratio laid down by the Apex Court in the cases (supra) and relied on by Mr. K. Munir, learned Addl. P.P., Assam would not be applicable in my humble opinion to this case in view of the facts and circumstances of the case. The facts which find place in the case of Dalel Singh and Lakhwinder Singh (supra) are apparently not identical to the facts of our present case. This Court, therefore, respectfully refuses to rely the ratio laid down in the cases (supra) by the Apex Court.
14. In view of disregard of mandatory provision as contained in the NDPS Act while making search and seizure, this Court is of considered opinion that the conviction and sentence awarded by the Special Court would not be sustainable in law. This Court finds many loopholes in the case of the prosecution to interfere with the impugned judgment and order of conviction and sentence. The same is accordingly interfered with.
15. In the result, the impugned judgment and order of conviction and sentence stands set aside and quashed. The appellants be released forthwith, if they are not required in any other case. Transmit back the LCRs.
