Tripura High Court

Sri Amar Singh vs The State Of Tripura on 16 July, 2024

Author: T. Amarnath Goud

Bench: T. Amarnath Goud

                  HIGH COURT OF TRIPURA
                        AGARTALA

                   CRL.A(J)No.19 of 2023

1. Sri Amar Singh,
   Son of Sri Sanjoy Singh,
   Resident of Haripur Colony,
   Dighat Ghat, Dhibra Par,
   Dinapur-cum-Khanga,
   Patna, Bihar-800011
2. Shri Umesh Kumar Yadav,
   Son of Chhotelal Yadav,
   Resident of 42, Patna Line, Gwala Basti,
   Bhuyadih, Jamshedpur, Agrico,
   East Singhbhum Agrico, Jharkhand,
   (Permanent) & Haripur Colony, Dighat Ghat,
   Dhibra Par, Dinapur-cum-Khanga,
   Patna, Bihar-800011
                                           ---- Appellant(s)
                           Versus
  The State of Tripura
  Represented by the Secretary,
  Department of Home,
  New Capital Complex, P.S. N.C.C.
  Agartala, West Tripura
                                         ----Respondent(s)

For Appellant(s)       :    Mr. D. Datta, Adv.

For Respondent(s)      :    Mr. Raju Datta, P.P.
Date of Hearing and
date of delivery of
Judgment and Order :        16.07.2024
Whether fit for
Reporting              :    NO


        HON'BLE MR. JUSTICE T. AMARNATH GOUD
        HON'BLE MR. JUSTICE BISWAJIT PALIT

                   Judgment & Order (Oral)


[Amarnath Goud, J]

The present appeal is directed against the judgment

and order of conviction and sentence dated 21.01.2023

passed by Learned Special Judge, Dhalai Judicial District,

Ambassa in connection with case No.Special (NDPS) 07 of

2022 whereby and whereunder the convicts have been

sentenced to suffer RI for ten years each for the commission

of offence punishable under Section 20(b)(ii)(C) of NDPS

Act, 1985 and also to pay a fine of Rs.1,00,000/- each in

default of payment of such fine with a direction to suffer

further RI for a period of one year and for the commission

of offence punishable under Section 25 of the NDPS Act the

appellants were sentenced to suffer further RI for ten years

each and to pay fine of Rs.1,00,000/- each and for default

of payment of fine to suffer further RI for a period of one

year each and furthermore the appellants were further

sentenced to suffer RI for ten years each for the commission

of offence punishable under Section 27 A of the NDPS Act

and to pay a fine of Rs.1,00,000/- each in default of

payment of fine they were sentenced to suffer further RI for

a period of one year each and also the appellant-convicts

were sentenced to suffer RI for ten years each for the

commission of offence punishable under Section 29 of NDPS

Act and to pay fine of Rs.1,00,000/- each in default of

payment of fine they were sentenced to suffer further RI for

a further period of one year each with direction that all the

sentences shall run concurrently.

02. The case in brief is that on 30.12.2021 Sub-

Inspector Bikash Debbarma of Ambassa Traffic Unit lodged

one suo-motu complaint to the Officer-in-charge of

Ambassa Police Station alleging, inter alia, that on

30.12.2021 at about 0840 hours when the complainant

along with staff of Ambassa Traffic Unit and staff of

Ambassa Police Station accompanied by 140 BN CRPF were

performing vehicle checking duty at Kathalbari area on NH-

08 vide Ambassa Traffic Unit GDE No.02. That time i.e. at

about 0905 hours they stopped one vehicle bearing

registration No.NL-01-Q-7635 and found that the movement

of driver and khalasi of the vehicle were suspicious and on

interrogation they informed that the vehicle contained some

contraband items which were kept in the hidden chamber of

the vehicle. Thereafter, the complainant informed the

matter to Superintendent of Police, Dhalai, Dy. SP, Dhalai

Traffic Unit and Officer-in-charge of Ambassa Police Station

and accordingly, Dy. SP, Dhalai Traffic Unit and Officer-in-

charge of Ambassa Police Station rushed to the spot with

investigation kit including weighing machine and drug

testing kit. The complainant also sent a message to

Superintendent of Police, Dhalai seeking permission to

conduct search in the vehicle and in the meantime some

local people residing near NH-08 of Kathalbari came to the

spot. Thereafter, the complainant and his accompanied staff

got themselves their body searched and thereby, the

complainant prepared pre-search memo in presence of

witnesses and receiving permission from Superintendent of

Police, Dhalai for conducting search in the vehicle, the

complainant conducted search in the vehicle in presence of

Dy. Sp, Dhalai Traffic Unit and independent witnesses.

During search total 121 nos. of brown colour packets tightly

wrapped with cell tap containing ganja were recovered from

the hidden chamber of the vehicle and on weighing found

1231.370 kgs of ganja. Thereafter, the complainant seized

the recovered ganja along with vehicle bearing registration

No.NL-01Q-7635 and its documents under a proper seizure

list in presence of witnesses and thus, the complainant

arrested the accused persons. After that, complainant

removed all the seized articles and accused persons to the

Ambassa Police Station and after returning to police station

lodged a suo-motu complaint against the accused persons

namely, Amar Singh and Umesh Kumar Yadav and handed

over the seized articles to the In-charge of Ambassa Police

Station. Accordingly, as per direction of In-charge, Ambassa

PS the complainant kept the seized articles to the Malkhana

of Ambassa PS vide MR No.27, dated 30.12.2021.

03. Thereafter the case was registered and the I.O.

took up investigation of the case and during investigation

the I.O. did all the formalities as required by law and after

completion of investigation laid chargesheet against both

the appellants convicted before the Learned Trial court.

Before the trial court formal charge under Section

20(b)(ii)(C)/25/27 A/29 of NDPS Act was framed against

both the appellants and the same were explained to them to

which they pleaded not guilty and claimed to be tried.

During trial to substantiate the charge prosecution adduced

in total 10 numbers of witnesses and relied upon some

documentary evidences which were marked as exhibits in

this case and after that on hearing of arguments of both the

sides the Learned court below convicted both the appellants

for the charges framed against them.

04. In course of hearing of argument Learned

counsel for the appellant drawn the attention of this court

that the prosecution could not adduce any cogent evidence

on record to sustain the charge against the appellant.

Furthermore, the requirement of Section 41 and 42 of NDPS

Act were not complied with by the prosecution to

substantiate the charge against the appellants and more so,

the independent witnesses of the prosecution could not say

as to how the seized alamats were identified as ganja for

which the prosecution case was suffered from infirmities and

Learned counsel referring the evidence of PWs 8 and 9

drawn the attention of this court that no pre-search memo

was prepared, even the search memo was prepared later on

which creates a doubt about the prosecution story and the

alamats were not seized in presence of any gazette officer.

So in summing up Learned counsel for the appellants

submitted that since the evidence of prosecution suffers

from various infirmities and the prosecution has failed to

satisfy the requirements of law to sustain conviction against

the appellants. So Learned counsel urged for allowing this

appeal by setting aside the judgment of the learned court

below.

05. On the contrary, Learned PP representing the

prosecution submitted that in this case the prosecution has

been able to prove the charge levelled against the

appellants and referring the evidence of PWs 1, 2, 7, 8 and

9 Learned PP submitted that the evidence of those

witnesses were so trustworthy that there was no room to

disbelieve their evidence and furthermore referring the

evidence of PW-5 Laxman Reang and PW-6 Kripajoy Reang

the independent seizure list witnesses Learned PP drawn the

attention of this court that the search and seizure was made

as per law and the appellants by the trend of cross-

examination could not raise any circumstance to disbelieve

the evidence of those independent public witnesses and

other witnesses of the prosecution. Learned PP further

submitted that since during vehicle checking duty the

offending vehicle along with the appellants were detained so

there was no requirement to obtain prior permission of the

authority as required by law and finally Learned PP urged

for dismissal of the appeal and to uphold the judgment and

sentence of the Learned court below.

06. Now before coming to the conclusion let us

discuss about the substantial part of the evidence on record

of the prosecution. PW-1 Shri Ranjit Reang deposed that on

30.12.2021 at about 09.00 AM while some police personnel

accompanied by traffic unit of Ambassa and CRPF personnel

conducting random vehicle checking on National Highway

No.8 at Kathalbari stopped a container Truck bearing No.NL-

01-Q-7635 and while checking the documents of the vehicle

suspicion arose to the police personnel as the driver and

Khalashi were spoken to the police personnel in some

irrelevant ways. On suspicion the driver and Khalashi were

detained by police and they disclosed their identity that they

were Amar Singh and Umesh Kumar Yadav. He also stated

that he himself and others called to witness the search of

the container truck and subsequently. The police personnel

after observing all the formalities conducted search in the

container truck in our presence and our signatures were

taken. After that upon search of the container truck from a

secret cabin of the truck 121 bundles wrapped with brown

cellotape were recovered and the bundles were containing

dry ganja. He said that Police seized those dry ganja in their

presence and he identified his signature on the seizure list

marked as Exbt.P-1/1. He further stated that Police also

seized the documents of the vehicle inclusive of Aadhaar

cards of the accused persons along with their Android and

keypad mobile and marked his signature marked as Exbt.P-

2/1. He identified the accused persons in the court.

During cross-examination he stated that police

recorded his statement on the spot and also stated that the

bundles were not opened by the police on the spot. In WV

he stated that during unloading of the bundles some of

them were torned and it could be ascertained that the

bundles were containing dry ganja and smell of dry ganja

were coming out of the bundles during unloading.

07. PW-2 deposed that on 30.12.2021 at about

11.30 a container truck was detained by us at Kathalbari on

National Highway No.8 while performing regular vehicle

checking duty with Sub-Inspector Bikash Debbarma and

other police personnel. He stated that on the said date upon

search of the vehicle bearing NO.NL-01-Q-7635 his officer

recovered 121 bundles of dry ganja in presence of the

witnesses. He identified his signature on the seizure list

marked as Exbt.P-1/2. He further stated that the drivers

were Amar Singh and Umesh Kumar Yadav and they failed

to show any document with regard to the possession of the

contraband in their vehicle and accordingly they were

detained and arrested. He also stated that his officer seized

the Aadhaar Card, driving licence and other documents of

the vehicle along with one android mobile and a keypad

mobile besides the vehicle bearing No.NL-01-Q-7635 were

seized in their presence and he identified his signature on

the seizure list marked as Exbt.P-2/2. Nothing came out

relevant during the cross-examination.

08. PW-5 Shri Laxman Reang deposed that on

30.12.2021 at about 09.00 am while some Police personnel

accompanied by Traffic Unit of Ambassa and CRPF Personnel

conducting random vehicle checking on National Highway

No.8 at Kathalbari stopped a container truck bearing No.NL-

01-Q-7635 and while checking the documents of the vehicle

suspicion arose to the Police persnonnel as the driver and

khalashi were spoken to the Police personnel in some

irrelevant ways and on suspicion the driver and khalashi

were detained by Police and they disclosed their identity

that they were Shri Amar Singh and Shari Umesh Kumar

Yadav. He himself and others called to witness the search of

the container truck and before conducting search the Police

personnel get themselves searched by them in presence of

others on the spot and Police took his signatures on pre-

search memo and search memo. He identified his signature

on the pre-search memo marked as Exbt.P-3/1 and on

search memo marked as Exbt.P-4/1. He further stated that

upon search of the container truck from a secret cabin of

the truck behind the driver's cabin 121 bundles of dry ganja

wrapped with brown cellotape were recovered and those

were unloaded in their presence and as the driver and

khalashi failed to give any satisfactory explanation

recovered bundles of dry ganja were seized by Police. He

stated that Police also seized the driving licence of the

accused persons besides other documents of the vehicle

inclusive of their android mobile handsets. He identified the

accused persons in the dock. Nothing came out relevant

during the cross-examination.

09. PW-6 also deposed in the same manner like PW-

10. PW-7 deposed that on 30.12.2021 he had been

reported that a container truck bearing No.NL-01-Q-7635

was detained while some Police personnel accompanied by

Traffic unit of Ambassa and CRPF personnel conducting

random vehicle checking on National Highway No.8 at

Kathalbari. He had also been informed while the Police

personnel checking the documents of the vehicle suspicion

arose to them as the driver and khalashi could disclose their

name and they were making irrelevant statement. He stated

that he had been informed by Sub-Inspector Shri Bikash

Debbarma and within fifteen minutes he reached at the

place of occurrence and Sub-Inspector Shri Bikash

Debbarma conducted search in the vehicle after observing

all the formalities and accordingly he prepared search memo

of the vehicle and the pre-search memo on the spot and his

signatures were obtained and identified his signatures as

Exbt.P-3/3 and Exbt.P-4/3. He further stated that upon

search of the container truck from a secret cabin of the

truck 121 bundles wrapped with brown cellotape were

recovered those were seized by Sub-Inspector Shri Bikash

Debbarma in his presence and he identified his signature

marked as Exbt.P-1/4. He stated that Sub-Inspector Shri

Bikash Debbarma also seized the Aadhaar Cards of the

driver and khalashi, their driving licence and other

documents of the vehicle along with one Android mobile and

a keypad mobile besides the vehicle bearing No.NL-01-Q-

7635 were seized in his presence and he identified his

signature as Exbt.P-2/4. He identified the accused persons

in the court dock. Nothing came out relevant from the

cross-examination.

11. PW-8, Bikash Debbarma deposed that on

30.12.2021 he was posted as Sub-Inspector of Police of

Ambassa Traffic Unit and on that day in the morning at

about 08:40 hours while he himself and along with his staff

of Ambassa Traffic Unit accompanied by the CRPF personnel

of 140 BN. CRPF were performing vehicle mobile checking

duty at Kathalbari on National Highway No.8 vide Ambassa

Traffic Unit GD Entry No.02 they stopped a container truck

vehicle bearing registration No. NL-01-Q-7635 and asked

the driver and his co-driver to produce the relevant

document of the vehicle they produced the document of

their vehicle but they were in hesitation. Thereafter, on

suspicion he talked with them and during enquiry the driver

and the co-driver stated to him that the vehicle contained

some illegal substances and those were concealed inside the

vehicle in a hidden chamber. He further stated that they

placed the vehicle besides the road and informed the matter

to SP, Dhalai as well as Dy. SP, Traffic Unit, Dhalai namely

Sunil Murasing and immediately Sunil Murasing rushed to

the spot and he sent a message to SP(C/S), Dhalai seeking

permission to conduct search in the vehicle. In the

meantime independent witnesses arrived on the spot and

they offered themselves to be searched by the independent

witnesses and he prepared pre-search memo on the spot in

the presence of the witnesses and he identified his signature

marked as Exbt.P-3 and ExbtP-3/4. He also conducted

search of the said vehicle and prepared search memo in

presence of Dy. SP, Traffic Unit and independent witnesses

and he identified his signature marked as Exbt.P-4 and

Exbt.P-4/4. He stated that upon search of the vehicle 121

bundles of dry ganja wrapped with brown cellotape which

were found concealed inside a chamber of the container

truck and accordingly he seized those contraband under a

proper seizure list in presence of the witnesses and he

identified his signatures on the seizure list marked as

Exbt.P/1 and Exbt.P-1/5. He also seized some documents

and identified his signatures marked as Exbt.P-2 and

Exbt.P-2/5. Further he stated that he arrested the accused

persons and thereafter he removed the accused persons

along with the seized materials and contraband to the police

station and lodged suo-motu complaint. He identified the

suo-motu complaint petition marked as Exbt.P-5 and

Exbt.P-5/1.

During the cross-examination he stated that he

did not apply any Test Kit on the spot to ascertain whether

the bundles recovered from the truck were containing any

illegal substances or not. Nothing more came out relevant

during the cross-examination.

12. PW-9 deposed that on 30.12.2021 he was posted

as Sub-Inspector of Police of Ambassa Police Station. He

stated that on that day Inspector Parikshit Debbarma being

the Officer-in-Charge of Ambassa Police station upon receipt

of the written ejahar of Sub-Inspector Bikash Debbarma

registered Ambassa police station Case No.2021 ABS 67

under Sections 20(b)(ii)(C)/25/29/27(a) of the NDPS Act,

1985. He identified his signature on the registration

endorsement marked as Exbt.P-5/2 and also in the printed

FIR marked as Exbt.P-6 and Exbt.P-6/1. He stated that

during investigation he visited the place of occurrence and

prepared hand sketch map and identified his signature

marked as Exbt.P-7 and Psbt.P-8. He perused the suo-motu

complaint, pre-search memo, search memo, seizure list,

seizure memo and other documents in the case docket

prepared by the complainant and thereafter he arrested the

accused persons and also interrogated them and prepared

interrogation reports. He also examined the available

witnesses under Section 161 of Cr.P.C. Thereafter an

inventory was prepared by the Dy. SP, Traffic namely Sunil

Murasing on 31.12.2021 and he produced the inventory

before the court and prayed to certify the correctness of the

inventory. He further stated that upon completion of

investigation being prima-facie satisfied he submitted

charge-sheet against the accused persons for the

commission of offences punishable under Sections

20(b)(ii)(C)/25/29/27 of the NDPS Act, 1985. He identified

the accused persons in the court dock.

During cross-examination he stated that he

made a prayer before the Ld. CJM, Dhalai Judicial District,

Ambassa for drawing sample from the seized contraband

and he did not make any prayer before the Special Court for

certification of correctness of the inventory, drawing of

samples, photography of the sampling procedure etc. He

also stated that he did not seize the Malkhana voucher and

or godown receipt relating to the interim custody of the

seized narcotic drugs and the samples during his period of

investigation. He further stated that samples were drawn by

the Dy. Sp Sunil Murasing at Khathalbari on National

Highway No.8 under Ambassa police station, Dhalai. He also

stated that being the investigating Officer he did not

prepare any list of sample before the court during sampling

and he did not prepare any check-list in the instant case

during his investigation and he did not comple Section

172(1)(1A) of Cr.P.C. relating the examination of witnesses

and recording their statements.

Heard both sides.

13. We have gone through the evidence on record.

Nor for the sake of convenience we would like to refer

herein below the relevant provisions of Section 41 and 42 of

NDPS Act which are as follows:

"41. Power to issue warrant and authorisation.--

(1)A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second-class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed.

(2)Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the paramilitary forces or the armed forces as is

empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such person or search a building, conveyance or place.

(3)The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-

section (2)shall have all the powers of an officer acting under section 42.

[42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub- inspector:

Provided further that] if such officer has reason to believe that a search warrant or authorisation 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 sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-

two hours send a copy thereof to his immediate official superior.]"

14. After going through the evidence on record and

also after perusing the aforesaid provision of law it appears

that on the alleged day in course of vehicle checking duty

the contravenes were seized from the position of the

appellants by the informant and the same was seized in

presence of the independent public witnesses and after

going through the evidence on record it appears that the

appellants by the trend of cross-examination could not raise

any doubt to disbelieve the prosecution case and

furthermore on perusal of the independent public witnesses

and the evidence of PW-10 it appears that the seized

alamats were contravened ganja and there was no room to

disbelieve the evidence of prosecution regarding

identification of the seized alamats. That apart the said

seizure of vehicle & contraband was on the road in a

running vehicle/crime vehicle. It is not a building or place or

raid. In a routine check when police officers made an alert

to stop the vehicle did not obey and thus seize & found

contraband. It is also not a personal body check. Thus it

appears that the appellants have failed to satisfy the court

by giving any cogent materials to interfere with the

judgment delivered by the learned Trial court below showing

their innocence with the alleged commission of offence.

Hence the present appeal filed by the appellants is liable to

be dismissed.

15. In the result, the appeal filed by the appellants

stands dismissed. The judgment and order of conviction and

sentence imposed by Learned Special Judge, Dhalai Judicial

District, Ambassa in connection with case No.Special (NDPS)

07 of 2022 is hereby upheld and accordingly it is affirmed.

Send down the LCRs along with a copy of this

order.

              JUDGE                                    JUDGE




MOUMITA                    Digitally signed by
                           MOUMITA DATTA

DATTA                      Date: 2024.07.23 13:24:46
                           +05'30'
Moumita