Pradip Jha vs The State Of Assam And Anr
2023 Latest Caselaw 4248 Gua

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GAHC010013252021




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

                                  Case No. : Crl.A./28/2021

            PRADIP JHA
            S/O- LATE RAMJI JHA, R/O- VILL.- MAZBAT TOWN, P.S. MAZBAT, PIN-
            784507, DIST.- UDALGURI (BTAD), ASSAM AND ALTERNATE ADDRESS-
            M/S. MAA TEA GARDEN NO. 1 GAROGAON, MAZBAT, DIST.- UDALGURI,
            BTAD, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE LEARNED PUBLIC PROSECUTOR, ASSAM.

            2:MANTU KUMAR DEKA
             S/O- LATE BENUDHAR DEKA
             SUB INSPECTOR OF POLICE MAZBAT PS
             MAZBAT
             DIST.- UDALGURI (BTAD)
            ASSA

Advocate for the Petitioner   : MR. A BHATTACHARYA

Advocate for the Respondent : PP, ASSAM
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                                   BEFORE
                 HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                   HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                    ORDER

Date : 11.10.2023

(M. Zothankhuma, J)

Heard Mr. A. Bhattacharya, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State respondent.

By filing the present appeal, the appellant has put to challenge the judgment and order dated 26.11.2020, passed by the learned Special Judge, Udalguri, in Special (NDPS) Case No. 20/2015, by which the appellant has been convicted under Section 20(b)(ii)(C) of the NDPS Act, along with co-accused, namely, Rinush Basumatary. They have accordingly been sentenced to undergo Rigorous Imprisonment for a period of 15 years each with a fine of Rs. 1,00,000/- (Rupees one lakhs) only each, in default to undergo Simple Imprisonment for 6 months.

The learned Trial Court has found the appellant herein and the co- accused, Rinush Basumatary, guilty of having committed the offence under Section 20(b)(ii)(C) of the NDPS Act, 1985, in view of the fact that 660 kg of ganja had been recovered from an empty water tank, which was behind the house occupied by the co-accused. The land on which the said empty water tank was standing on was, however, in the name of another person, i.e. Samiran Basumatary, who is the father of the co-accused, Rinush Basumatary. The present appellant has been convicted on the ground that he had led the police and the NCB party to the empty water tank, from where the ganja had been recovered.

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Mr. A. Bhattacharya, learned counsel for the appellant, submits that the discovery of the drugs has not been done on the basis of any voluntary statement made by the appellant, as required under Section 27 of the Indian Evidence Act, 1872. As such, the appellant could not have been connected with the recovery and discovery of the drugs, as he had not told the police or led them to the place where the drug was allegedly hidden.

The learned counsel for the appellant further submits that the evidence of the Executing Officer, who was a constable in Mazbat Police Station, is to the effect that he had been instructed to serve summons upon Gaira Basumatary and Lila Basumatary, who are the seizure witnesses. However, the local public and the village headman told him that no persons by the above names were residing in the village, as per the address allegedly given by the said seizure witnesses. He, accordingly, submits that the above cast a doubt on the authenticity of the seizure memo, as the seizure witnesses could not be found.

The learned counsel for the appellant also submits that P.Ws.-1, 2 & 3 have been declared hostile witnesses, without following the procedure for declaring a hostile witness, as required under Section 154 of the Indian Evidence Act. He also submits that the evidence of P.W.-8, who is the Intelligence Officer, NCB, implies that the place of recovery of the drugs had been shown to the police by an informer and not by the appellant. He also submits that from the evidence of P.W.-7, who is the another seizure witness, it reveals that he does not know anything about the seizure. The learned counsel further submits that in terms of the judgment of the Hon'ble Supreme Court in the case of Rammi @ Rameshwar Vs. State of Madhya Pradesh, reported in (1999) 8 SCC 649, the Court, while testing the reliability of the offence pertaining to Section 27 of the Evidence Act, has to see whether the same was Page No.# 4/4

voluntarily stated by the accused. In the present case, the statement made by the appellant was not voluntary, as is evident from his explanation given during his examination under Section 313 Cr.P.C. As such, the learned Trial Court could not have come to a finding that the appellant had made any voluntary statement, leading to the recovery of the drugs.

Ms. S. Jahan, learned Additional Public Prosecutor, prays that the matter may be listed on 13.10.2023 to enable her to make her submission on that day.

Prayer is allowed.

List the matter on 13.10.2023.

                       JUDGE                                JUDGE



Comparing Assistant