Ismail Uddin vs Union Of India And Anr
2022 Latest Caselaw 4009 Gua

                                                                       Page No.# 1/8

GAHC010138252017




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

                                Case No. : Crl.A./328/2017

            ISMAIL UDDIN
            S/O LATE SIDDEK ALI, R/O JUBARAJNAGAR, P.S. DHARMANAGAR, SUB-
            DIVISION NORTH TRIPURA, PIN 799254



            VERSUS

            UNION OF INDIA and ANR


            2:R. BHATTACHARJEE

             INTELLIGENCE OFFICER
             DIRECTORATE OF REVENUE INTELIGENCE
             GUWAHATI REGIONAL UNIT
             GUWAHATI-

Advocate for the Petitioner   : Ms. SK Nargis

Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR JUDGMENT & ORDER

Date : 19.10.2022

Heard Ms. S.K. Nargis, learned counsel for the appellant as well as Mr. S.C. Keyal, learned Standing Counsel, DRI.

Page No.# 2/8

2. This appeal under Section 374 (2) of the Code of Criminal Procedure ('Cr.P.C.' for short) is preferred against the impugned Judgment and Order, dated 19.05.2017, passed by the learned Special Judge (NDPS Act)-cum- Addl. Sessions Judge, FTC No. 3, Kamrup (M) at Guwahati in NDPS Case No. 11/2015, whereby the accused 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 rigorous imprisonment for 1 (one) year under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act' for short).

3. The prosecution story, in brief, is that on 20.08.2014, acting on specific information, the officers of Directorate of Revenue Intelligence, ('D.R.I.' for short), Guwahati searched a truck bearing registration No. NL-02-K-4844 at Jalukbari area, Guwahati at about 20:00 hours which was parked on the roadside of NH-37. The DRI officials found the present accused/appellant sitting inside the truck and he introduced himself as the handyman of the aforesaid truck. On demand, the accused/appellant showed them challan of mangoes and denied of carrying any contraband. But, as the information was specific, the DRI officials brought the truck to Brahmaputra Apartment along with the accused/ appellant and after conducting search in the vehicle in presence of independent witnesses and the appellant, they recovered 30,700 pet bottles of Phensedyl Cough Linctus of 100 ml. each contained in 307 number of paper cartons along with 63 number of wooden boxes containing 20 kgs. of mangoes each. The accused/appellant could not produce any valid document in support of carrying the Phensedyl Cough Linctus valued at Rs.29,46,350/-. Accordingly, the DRI officials seized the recovered Phensedyl Cough Linctus, mangoes, the truck, documents of the vehicle and one mobile handset from the accused/ appellant.

Page No.# 3/8

During investigation, it was revealed that one Mintu Mia was the owner of the truck and one Swapan Debnath was the driver, whom the DRI officials could not apprehend although attempts were made.

4. After seizing the aforesaid contraband as per provisions of the NDPS Act, the seizing officer collected samples, prepared inventory, sent the samples of seized suspected contraband to FSL, Assam for chemical examination, arrested the accused/ appellant and produced him before the Court. As the sample gave positive test for Codeine, the investigating officer filed a formal complaint against the arrested accused/ appellant showing two other accused persons as absconders under Sections 8(c)/21/29 of the NDPS Act. Thereafter, the Court of learned Special Judge (NDPS Act), Kamrup (M), Guwahati issued Court processes against the absconding accused persons. Vide order, dated 09.06.2016, the learned Court below split up the case as the accused/appellant was in judicial custody and the case was transferred to the Court of learned Addl. Sessions Judge, FTC No. 3, Kamrup (M) at Guwahati for disposal. The charge was framed against the accused/appellant. The charge so framed was read over and explained to the accused /appellant, to which he pleaded not guilty and claimed to be tried.

5. In order to bring home the charge levelled against the accused/appellant, the prosecution examined altogether 06 (six) witnesses. 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 examined himself in defence. After completion of trial, the learned Special Judge (NDPS Act) -cum-Addl. Sessions Judge, FTC No. 3, Kamrup (M) convicted and sentenced the accused/ appellant under Section 21(c) of the NDPS Act as stated above.

Page No.# 4/8

6. Ms. SK Nargis, learned counsel for the appellant, submitted that the learned trial court while convicting the appellant of the charge did not appreciate the evidence of the prosecution witnesses in its proper perspective inasmuch as there is no evidence to show that PW-4 sent the information to PW-1 and that he received the same and further, that he forwarded the information to any superior officer as required under Section 42 and that the mandatory provisions under Sections 52 A and 57 of the NDPS Act were completely flouted in this case. Ms. Nargis, learned counsel, further submitted that the appellant has already served out the sentence substantially for nearly 08 (eight) years and therefore, in the light of the aforesaid non-compliance of the mandatory provisions of the NDPS Act and having undergone the substantial part of the sentence of imprisonment, he is entitled to be acquitted of the charge.

7. Per contra, Mr. SC Keyal, learned Standing Counsel for DRI, submitted that in view of the consistency and unrebutted testimony of the prosecution witnesses showing strict compliance of the provisions of the NDPS Act, no interference in the impugned well reasoned judgment and order is called for.

8. I have given due consideration to the above arguments advanced by the learned counsel of both sides. Perused record inclusive the impugned judgment and order.

9. Now, let us appreciate the evidence on record.

A perusal of the evidence of PW-1, Pankaj Lal Sinha, the then Senior Intelligence Officer, DRI at Guwahati, it is revealed that he received an information to the effect that a 10 wheeler truck was transporting Phensedyl Cough Linctus bottles concealed under mangoes from Kolkata to Agartala via Page No.# 5/8

Guwahati which information he reduced into writing vide Ext.1, dated 20.08.2014 and accordingly took steps for interception of the truck for search and seizure. Thereafter, within 24 hours thereof, he reported the aforesaid information of recovery of huge quantity of the contraband Phensedyl Cough Linctus bottles in detail to the Additional Director General, DRI, Kolkata on 21.08.2014 in the form of an FIR, which had already been lodged and registered vide Ext. 2. Thereafter, as he was transferred, PW-2 Rajarshi Choudhury, Intelligence Officer, DRI, Guwahati completed the process of preliminary investigation in the matter. Therefore, the evidence of PW-1 vis-à-vis the contents of Exts. 1 and 2 show compliance of Section 42 of the NDPS Act in absence of any contradictions in material particulars in his cross-examination.

10. Further, from the evidence of PW-2 Rajarshi Choudhury, Intelligence Officer, PW-3 Anowar Hussain, an independent witness, PW-4 Arup Bhattacharji, Intelligence Officer and PW-6 Rajarshi Bhattacharji, Intelligence Officer, as a whole, it transpires that the team of DRI Officers intercepted the truck bearing registration No.02K 4844, as per information, near Jalukbari Point, Guwahati on NH-37 on 20.08.2014 at about 20.00 hrs and they, on enquiry from the appellant, who was found inside the truck informed that he was the handyman of the truck and that the truck transported only mangoes. However, as there was specific input that the aforesaid truck loaded with mangoes also carried narcotic drugs and the public place where the truck was intercepted was not conducive for conducting search during night hours, they brought the truck to the Central Excise Office, Brahmaputra Apartment at Pathar Quary, Guwahati for conducting search, along with two independent witnesses inclusive PW-3, who were found at the aforesaid public place of interception. It may be reiterated here that the place of interception near Jalukbari Point on NH 37 is a busy place Page No.# 6/8

within Guwahati city area and as such, it was considered to be not a convenient place for search in the aforesaid 10 wheeler loaded truck.

11. So far the search and seizure process is concerned, it is noticed from the evidence of PWs-2,3, 4 and 6 that the search was conducted on the morning of 21.08.2014, that is, on the following day of interception of the truck during night hours and in course of search, found 30,700 number of pet bottles of Phensedyl Cough Linctus (new) containing codeine Phosphate of 100 ml each packed in 93 number of gunny and PVC bags valued at Rs.29,46, 350/-. The search, of contraband, seizure and arrest of appellant were conducted in presence of independent witnesses aforementioned as required by Section 43 of the NDPS Act. Accordingly, an inventory in detail vide Ext. 4 and Panchanama Vide Ext. 5 were prepared in presence of the appellant and witnesses inclusive PW-3, an independent witness as well as the statement of the appellant was recorded by PW-2, the Intelligence Officer under Section 67 of the NDPS Act. The order, dated 22.08.2014, shows that the inventory goods and samples thereof were produced and shown to the court while the samples were returned to the investigating officer and the inventory of goods was kept with the case record. This shows the sufficient compliance of Section 52 A of the NDPS Act. It is further noticed that PW-1, Senior Intelligence officer, reported the arrest of the appellant and seizure of the contraband from his possession to the Additional Director General, DRI, Kolkata Zonal Unit, with all particulars and Deputy Director, DRI Guwahati, on 21.08.2014 itself vide Ext. 2 and Ext. 11 respectively in compliance of Section 57 of the NDPS Act. Here, it may be noted that the appellant was arrested by Ext. 7, the arrest memo, dated 21.08.2014 and reported his arrest within 24 hours to the court of learned Chief Judicial Magistrate, Kamrup at Guwahati by Ext.8, the accused forwarding report dated Page No.# 7/8

22.08.2014 and the corresponding order of the said court, dated 22.08.2014 . It is also noticed from the evidence of PW-2 that Form-F (seizure report) was prepared on 22.08.2014 and forwarded to the Senior departmental officers of the DRI vide Ext.9. It appears that PW-2 drew samples of the seized articles and produced the same before the aforesaid learned Court vide order dated 22.08.2014 and forwarded 16 samples of the aforesaid seized cough syrup bottles to the Forensic Science Laboratory, Assam ('FSL' for short) by Ext. 10 for chemical analysis.

12. Turning to the evidence of PW-5 Gajendra Nath Deka, the then Deputy Director of FSL, Assam, it appears that he examined the samples as per the United Nations Drugs Testing Laboratory Manual and found the same giving positive tests for Codeine and each sample contained 151.5 mg vide Ext.12, the report, dated 26.09.2014. The aforesaid quantity of codeine in each bottle of total seized 30,700 bottles go to show the same contained several fold more than the commercial quantity as per definition in section 2 (vii a) and as per notification under the NDPS Act.

13. It is noticed that PW-6, after completion of investigation submitted the complaint vide Ext.14 against the appellant, showing 02 (two) others as absconding.

14. Coming to the evidence of DW-1, the appellant, it appears that he pleaded innocence as he, who was the handyman of the seized truck, knew that the truck was loaded with mangoes only and by Ex.'A' petition informed the court that his signatures were taken on a number of blank papers while in the custody of the DRI and denied to have made any voluntary statement. In this regard, the corresponding order, dated 11.11.2014, passed by the learned trial court shows that after hearing the learned counsel for the appellant, the Page No.# 8/8

aforesaid petition was simply kept on record. PW-2 in his cross-examination denied that the appellant's signatures were obtained forcibly on the documents while he was under his custody. It is further noticed that even PW-3, an independent witness, testified to the appellant giving his voluntary statement vide Ext. 6. Therefore, in view of the consistent and convincing evidence of the prosecution witnesses available on record, it can legally be presumed under Section 54 of the NDPS Act that the appellant consciously possessed the aforementioned seized huge quantity of contraband, for the possession of which, he failed to account satisfactorily.

15. For the above stated reasons, the prosecution case being proved beyond all reasonable doubt, this Court is of the opinion that no interference in the impugned judgment and order is warranted.

16. Accordingly, the appeal stands dismissed.

Return the LCR.

The Appeal is disposed off accordingly.

JUDGE

Comparing Assistant