Smt Banu Bibi vs The State Of Assam
2022 Latest Caselaw 2563 Gua

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GAHC010115882016




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./194/2016

            SMT BANU BIBI
            W/O LATE SURMAN ALI OF MUKRAMPUR, P.S. BEDDENGA, DIST.
            MURSHIDABAD, WEST BENGAL



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY P.P. ASSAM.



Advocate for the Petitioner   : MS.P MAZUMDAR

Advocate for the Respondent :




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                        JUDGMENT

Date : 29.07.2022

Heard Mr. I.A Talukdar, learned counsel for the appellant as well as Mr. PS Lahkar, learned Addl. P.P., Assam appearing for the State respondent.

2. This appeal under Section 374 (2) of the Code of Criminal Procedure ('Cr.P.C.' for short) is preferred against the Judgment and Order, dated 15.06.2016, passed by the learned Special Judge ( NDPS Act), Jorhat in Special Page No.# 2/10

Case No. 06 of 2013 arising out of GR Case No. 2068 of 2013 (corresponding to Jorhat PS Case No.1152 of 2013 ) whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs.1,00,000/- (Rupees One Lakh), in default, to suffer imprisonment for 6 (six) months under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short).

PROSECUTION STORY:

3. The prosecution story, in brief, is that on 25.07.2013, one SI Hemen Das, the then In-charge of Bhogdoi Out Post, Jorhat received an information from one ASI Dulal Bora that while they were on patrolling duty on NH-37 and were conducting checking in vehicles, they checked one vehicle bearing registration No.AS-04 B/2306 [709 Bus] and found ten number of packets wrapped with polythene containing suspected ganja (cannabis) from a woman passenger. The suspected ganja (cannabis) was carried by the said accused woman in order to sell the same.

INVESTIGATION & TRIAL:

4. On receipt of the FIR, Officer-In-Charge, Jorhat Police Station registered the case as Jorhat P.S. Case No. 1152/2013 under Section 20 (b) of the NDPS Act. After completion of investigation, the investigating officer laid a charge- sheet against the accused appellant under Section 20 (b) of the NDPS Act. On appearance of the accused appellant, the learned court framed a charge against the accused appellant under Section 20 (b) of the NDPS Act. The accused appellant pleaded not guilty and claimed to be tried.

5. In order to bring home the charge brought against the accused appellant, the prosecution examined altogether 10 (ten) witnesses and exhibited as many Page No.# 3/10

as 18 documents. After closing the evidence of the prosecution side, the statement of the accused appellant under Section 313 Cr.P.C. was recorded. The accused appellant pleaded innocence and claimed to be tried. After completion of trial, the learned Special Judge (NDPS Act), Jorhat convicted and sentenced the accused appellant under Section 20 (b) of the NDPS Act as stated above.

EVIDENCE:

Now, let us look to the evidence on record.

6. P.W. 1, ASI Dulal Bora in his evidence stated that on 25.07.2013, while he was on duty at Bhogdoi Out Post on NH-37 along with two other police personnel for Naka checking, they stopped one 709 Bus bearing registration No. AS-04 B/2306 which was coming from Sivasagar and found three bags containing suspected ganja near the seat of the accused appellant and thereupon, he informed the In-charge, Bhogdoi Out Post, who, in turn, seized the passenger ticket, prepared ten packets of sample, each containing 50 grams from the seized ganja, R.C. Book, insurance certificate and fitness certificate of the vehicle etc.

During cross-examination, he stated that the said bus was full of passengers. He further stated that the accused appellant was occupying a seat behind the driver bearing seat No. 2 or 3.

7. P.W. 2, Gakul Saikia, a police Constable, in his evidence, stated that on 25.07.2013, when he along with ASI Dulal Bora and CRPF personnel were on duty, they stopped one 709 Bus bearing registration No. AS-04 B/2306 which was on from Sivasagar side and when they checked in the vehicle, they found three bags containing suspected ganja near the seat of the accused appellant.

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He further stated that when they asked for the owner of the bags, the accused appellant claimed to be the owner and disclosed her name as Banu Bibi.

During cross-examination, he stated that the said bags were opened by the handyman of the bus in his presence.

8. P.W. 3, Md. Nekibuddin Ahmed, who was the driver of the vehicle, in his evidence stated that on the date of incident, the accused appellant boarded the bus at Sivasagar carrying three bags in her hand. He further stated that he was present when police seized the articles.

During cross examination, he stated that when police stopped his vehicle (bus) and conducted search in the vehicle, then only he came to know that the bags belonged to the accused appellant.

9. P.W. 4, Jitu Das is the Handyman of the bus. His evidence is that on the relevant day, the accused appellant boarded his bus carrying two air bags and one handbag. When the bus was stopped near Bhogdoi Out Post, all the passengers came down from the bus, but the accused appellant did not come out, rather sticked to her seat.

In cross-examination, he stated that he took rupees fifty from the accused appellant and did not take extra fare from her for the bags which she carried with her. He further stated that the bags were found beneath the seat on which the accused appellant was found sitting.

10. P.W. 5, Niranjan Dutta stated in his evidence that he is the owner of a shop and on 25.07.2013, police seized one weighing scale from his shop along with one 50 gram weight.

During cross-examination, he stated that he does not know the contents of the seizure list.

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11. P.W. 6, Santanu Hazarika in his evidence stated that on 25.07.2013, one electronic scale of capacity 110 kg was seized by police and the same was returned back to him by police after weighing the seized articles.

12. P.W. 7, Gajendra Nath Deka, the Deputy Director, F.S.L., Assam in his evidence confirmed that he received a parcel from the Director of Forensic Science Laboratory ('FSL' for short), Guwahati in connection with Bhogdoi OP GD Entry No. 563, dated 25.07.2013 .

He was not cross examined by the defence.

13. P.W. 8, S.I Hemen Das is the informant of the case, who stated that on 25.07.2013, he was serving as In-charge, Bhogdoi Out Post and on that day, he received information from ASI Dulal Bora to the effect that while he was patrolling on NH 37 and ckecked in the vehicle bearing registration No.AS-04 B/2306 [709 Bus], he found one woman in possession of suspected ganja and detained her at the place of occurrence.

During cross-examination, he denied all the defence suggestions put to him together with the suggestion that the bags were not found in possession of the appellant.

14. PW-9, Santanu Kumar Dutta, the then Additional Superintendent of Police (Security ) in his evidence stated that on 25.07.2013, after getting information from the investigating Officer, S.I. Hemen Das, he issued an Authority Letter to him and thereafter, went to the place of occurrence and found one lady, who was in possession of the suspected ganja.

15. P.W 10, Pradip Kumar Bora, the then Officer-In-Charge of Jorhat Police Station, stated about the routine steps taken by said S.I. Hemen Das. He further deposed that after going through the case diary and having found that Page No.# 6/10

the investigation of the case has been completed, he submitted charge sheet against the accused appellant under Section 20 (b) of the NDPS Act.

During cross-examination, he denied that the bags containing ganja were not belonged to the accused appellant.

ARGUMENTS:

16. Mr. IA Talukdar, learned counsel appearing for the accused appellant submitted that the appellant, who is a lady, has been in judicial custody for more than 9 (nine) years, without any reliable evidence that she was carrying contraband ganja while travelling by a 709 bus from Sivasagar towards Jorhat. Mr. Talukdar further submitted that there is no evidence to show that the recovery and seizure of ganja was made from her exclusive and conscious possession as she was one of the many passengers travelling by the bus. On the other hand, Mr. Talukdar submitted, the seizing police officer did not follow the procedure mandated by the NDPS Act and as such, she is entitled to be acquitted of the charge. In support of his argument. Mr. Talukdar relied on the principles laid by this Court in the cases of 1. Wetso- U Ritse -vs- State of Nagaland reported in 2022 (2) GLT 940; 2. Gian Chand and others -vs- State of Haryana reported in (2013) 14 SCC 420, and 3. Madan Lal & Anr. -vs- State of HP reported (2003) 7 SCC 465.

17. Per Contra, Mr. PS Lahkar, learned Additional Public Prosecutor appearing for the State of Assam, submitted that besides the official witnesses, an independent witness, who was the handyman of the bus, PW-4 categorically stated in evidence that he saw the appellant carrying in hand two airbags and one handbag in her hands while travelling by his bus and on opening the said Page No.# 7/10

bags, the police found the same containing ganja. Mr. Lahkar further submitted that as stated by PW-4, she misled the police when enquired as to what those bags contained, saying that those contained cloths. Mr. Lahkar also submitted that the seizure memo shows recovery of 43 kgs of ganja, the sample of which was confirmed to be so by the Forensic Science Laboratory. Therefore, Mr. Lahkar submitted that no interference is called for in the impugned well reasoned judgment and order of the learned trial court.

ANALYSIS OF EVIDENCE:

18. A perusal of the case record reveals that pursuant to the GD Entry, vide Ext.16, dated 25.07.2013 at 9 am, made by PW 8, the investigating officer, he conducted Naka checking in front of Bhogdoi police Out post under Jorhat Police Station on the National Highway No.37 and in course of checking in a 709 bus, bearing registration No.AS 04 B 2306 found 3 (three) bags containing suspected contraband ganja, which were carried by the appellant and after seizing the same, formally lodged the FIR on 27.08.2013 with the Officer-in-charge of Jorhat PS vide Ext.17, dated 27.08.2013. PW-8, the investigating officer, it is noticed, arrested the appellant and took samples of the seized suspected ganja for onward chemical analysis in the F.S.L., Assam. Subsequently, the forensic expert PW-7 submitted the report vide Ext. 14 confirming the seized substance as cannabis (ganja). The seizure memo vide Ext.7 shows that the total weight of the seized ganja was 43.1 kg, which amounted to commercial quantity under the NDPS Act.

19. In Gian Chand (supra), the Hon'ble Supreme Court held that under Section 35 of the NDPS Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. The Hon'ble Court held that it is a settled legal proposition that once Page No.# 8/10

possession of the contraband article is established, the burden shifts on the accused to establish that he had no knowledge of the same and he has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872. Also in Madan Lal (supra), the Hon'ble Court held that once possession is established, the person who claims that it was not a conscious possession has to establish it. Section 35 gives a statutory recognition of this position, because of the presumption available in law.

20. Deriving the above principle laid by the Hon'ble Supreme Court in a catena of judgments, a Division Bench of this Court in Wetso-U Ritse (supra) observed that initially , the burden exists upon the prosecution and when it stands satisfied, the legal burden would shift and even then the standard of proof required for the accused to prove his innocence is not as high as of the prosecution inasmuch as the standard of proof required for proving the guilt of the accused on the prosecution is "beyond all reasonable doubt," but it is "preponderance of probability " on the accused.

21. On scrutiny of the evidence of PWs 1 and 2, it transpires that the recovery of contraband was made while they along with CRPF personnel conducted search in the seized 709 bus and accordingly, PW-1, who was an Assistant Sub- Inspector of Police observed the procedure of arrest of the appellant and seizure of the contraband weighing total 43 kg as well as obtaining samples thereof for forensic examination. The appellant was occupying a seat behind the driver's seat. PW-3, the driver of the bus corroborated their testimony with reference to the exhibited documents. Likewise, PW-4, the handyman of the bus, also corroborated their testimony as well as his statement recorded under Section Page No.# 9/10

164 CrPC vide Ext.13. PWs 5 and 6, who provided the police with the electronic weighing scales, testified to seizure lists Ext.8 and 10 as well as delivery of one seized electronic scale to PW-6 for zimma. PW-7, the forensic expert, deposed that the sample of seized contraband forwarded for examination, found to be cannabis (ganja) vide report Ext.14. PW-8, the then In-charge of Bhogdoi police Out Post, who made the GD Entry, vide Ext. 6 and on being authorised by the senior police official along with PWs 1 and 2 conducted the search corroborated the testimony of the said prosecution witnesses and testified to inter-alia the documents vide the seizure list Ext.2, whereby M.Ext. 1, the articles were seized vide Exts. 7, 10, 14 etc. PW-9, the then Additional Superintendent of Police (Security), recognised Ext. 18, the Authority Letter, whereby PW-8 was authorised to seize the recovered ganja observing necessary formalities and to investigate the case. PW-10, the Officer-In-Charge of Jorhat Police Station, who supervised the search and seizure, corroborated the aforesaid evidence of the prosecution witnesses. Thus, there is clear evidence, in the absence of any evidence contrary thereto being elicited by defence in the cross-examination of the PWs, that the contraband ganja was recovered and seized from the exclusive and conscious possession of the accused appellant only beyond reasonable doubt.

22. The prosecution after having proved the possession of contraband by the accused appellant, the burden shifted on her to rebut it by adducing some amount of evidence under Section 35 of the NDPS Act, but she failed to account satisfactorily by leading defence evidence for the possession of the contraband weighing 43.1 kg (net), which, in fact, amounted to commercial quantity, as required under Section 54 of the NDPS Act. Mere plea of innocence denying all the incriminating evidence in her statement under Section 313 CrPC is not Page No.# 10/10

sufficient to establish her innocence.

CONCLUSION:

23. For the above stated reasons, this Court is of the opinion that no interference is called for in the impugned well reasoned judgment and order. Accordingly, the appeal stands dismissed.

Send back the LCR.

JUDGE

Comparing Assistant