cause title ndps case no. 3/12dibrugarhjudiciary.gov.in/judgement for 2014/26.02.2014...1 cause...
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CAUSE TITLE
NDPS Case No. 3/12
Informant: SI Ranjan Doley, In-charge, Borbari Police Outpost, PS- Dibrugarh. District- Dibrugarh.
Accused: Md. Elahi Seikh, S/o- Late Kalu Seikh, R/o- Chandmarighat, PS- Dibrugarh. District- Dibrugarh.
ADVOCATES:-For the prosecution : Mr. S. Bhuyan, Public Prosecutor.
For the Defence : Sri R. Borthakur, Advocate; and Smti. Anju S. Gogoi, Advocate.
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IN THE COURT OF THE SPECIAL JUDGE AT DIBRUGARH
Present: Smti. R.K. Phukan, AJS, Special Judge, Dibrugarh.
NDPS Case No. 3/12G.R. Case No. 581/12
Mr. Elahi Seikh
-Vs-
State of Assam
Charge u/S 21(C) NDPS Act.
Date of evidence on : 03-09-12, 03-10-12, 22-11-12, 19-12-12, 24-01-13, 20-02-13, 02-05-13, 29-05-13
& 13-11-13.Date of argument : 28-01-14 & 12-02-14.Date of Judgment : 26-02-14.
JUDGMENT
(1) Prosecution case, in brief, is that on 16-03-12, SI Ranjan Doley
lodged an ejahar before the Officer-in-charge, Dibrugarh Police
Station to the effect that on that day, at 5:00 am, on the basis of secret
information received from a reliable source that few Drugs Smugglers
have reached at Chandmarighat with a large quantity of Brown Sugar
and on receipt of the said information, a plan was made by him under
the supervision of Addl. SP (HQ) Pranjit Bora, Officer-in-charge,
Dibrugarh Police Station and Inspector Hiranya Kumar Bora to catch
them. On that day, around 1:30 pm, a search and raid operation was
made along with Addl. SP (HQ), Dibrugarh, Dy. SP(P) Ponjit
Duwarah, Officer-in-charge, Dibrugarh, Inspector Hiranya Bora and
other staff in the house of one Md. Elahi Seikh of Chandmarighat
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under Dibrugarh Police Station. During the search, three persons,
namely, Md. Elahi Seikh, Md. Najir Ali and Md. Karim Ali @ Butu
of Chandmarighat have been apprehended and also seized 1 kg and
150 gms of Brown Sugar containing in 6 (six) poly packets, an
amount of Rs. 60,000/- (sixty thousand) was also seized from their
possession. The seizure was made as per provision of law and in
presence of witnesses. On receipt of the said ejahar, the
Officer-in-charge, Dibrugarh Police Station registered a case being
Dibrugarh PS Case No. 215/12 under Section 21(C) NDPS Act and
entrusted SI Bhuban Gohain to investigate the case. After completion
of the investigation, he submitted the Charge-Sheet against the
accused persons under Section 21(C) NDPS Act.
(2) The accused person was produced before this Court being the
offence triable exclusively by the Court of Special Judge.
(3) On production of the accused person before this Court and after
hearing the learned counsel for both the sides on the point of charge
and considering the record, the statement of the witnesses and the
documents referred u/S 173 Cr.PC, there being ground for
presumption that the accused has committed the offence, formal
charge u/S 21 (C) of the NDPS Act was framed and explained to the
accused Elahi Seikh to which he pleaded not guilty and claimed to be
tried. There being no materials for proceeding against other two
accused, namely, Nazir Ali and Karim Ali, they were discharged by
my predecessor, after hearing both sides.
(4) In order to bring home the charge against the accused person,
prosecution examined as many as fifteen witnesses. Defence side
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examined none. The plea of the defence is of total denial. The
accused person his statement recorded u/S 313 CrPC, denied the
allegations made against him and pleaded that he is not involved.
(5) I have heard learned counsel for both sides and gone through
the record.
POINT FOR DETERMINATION
(6) (i) Whether the accused person in contravention of the
provisions of NDPS Act and Rules made thereunder,
found in possession of 1 kg and 150 gms of brown sugar
(heroin)?
DECISION AND REASONS THEREOF
(7) PW-1/Md. Mehmud Ali has stated that about 5/6 months ago,
Ahdul Sajid informed him over phone that something had happened
at Chandmari Ghat and he went there and saw the accused sitting
there along with Addl. SP and other police personnels. He heard that
heroin had been recovered. He stated that after searching the house
of the accused, police recovered Rs. 60,000/- and seized the same in
front of him. Ext. 1 is the Seizure List wherein Ext. 1(1) is his
signature. He left the place after the seizure.
In cross-examination, he stated that he had seen the money on
the table and do not know wherefrom the money was brought out.
Police told him that the money was recovered from the accused. He
also stated that the accused and some other persons were in the room
where the table was kept.
(8) PW-2/Md. Hussain Nawaz has stated that about 6/7 months
ago, while he was coming out from his house, one police officer took
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him to a house situated at Chandmari Ghat and there was huge
gathering, but he do not know about the owner of that house. Police
took him into the house and took his signature on some papers.
Police told him that they have recovered drugs and his signature was
taken in the Seizure Lists. Ext. vide Ext. 2 & 3. He stated that he do
not know wherefrom the seized article was found and also do not
know whether the accused person was at that place or not as there
was a large gathering.
He stated that he had left the place after putting his signature on
the said papers.
(9) PW-3/Sri Binod Raut has stated that about 8/9 month ago, from
the date of recording his evidence, at about 2:00 pm, while he was
going to bring the key of shop at Chandmarighat, he saw large
gathering there and he entered into the house. Police was sitting in the
house and he saw some brown colour powder on the table. He stated
that he did not notice whether the accused was at that place or not.
Police took his signature on a paper and he do not know wherefrom
police found the said powder and police did not tell him about the
matter.
(10) PW-4/ Sri Sudama Pandey has stated that about 7/8 months
ago, , at about 1 ½ /2 pm (from the date of recording his evidence)
while he was going to his rented house situated at Chandmari Ghat,
police was in the house of the accused and there was a large
gathering. He went there to see as to what happened and saw the
accused sitting there along with police. He saw soil like material on
paper and police took his signature on a paper. Police weighed the
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material and seized the weighing apparatus. He cannot remember
about the weight of that material. He stated that police found
Rs. 60,000/- and seized the same.
In cross-examination, he has stated that the material was soil
like substance which was on an open paper. There was a large
gathering and he do not know about the owner of that house. He only
came to know from the gathering people that the house was belonged
to the accused and he never saw the accused earlier.
(11) PW-5/Sri Suraj Dutta has stated that on 16-03-12, while he was
working as a Reporter in the news channel in the name and style
“News Live”. Police informed him that they found drugs from the
house of the accused and called him to take the video footage of the
seizure. He went to Chandmari Ghat and saw some packets of drugs
there which was being packed by police and he recorded the visual of
seizure. Police seized the CD of visual from him. He stated that he
reached at the place after the seizure made by police.
In cross-examination, he stated that they went to the place of
occurrence only to collect news as per information given by police.
He stated that accused was sitting in a room along with police
officials.
(12) PW-6/Sri Atma Yadav has stated that while he was in his
house, he heard that drugs had been recovered from the accused and
he went to seen as to what had happened, but police did not allow him
to go there. He stated that he do not have any personal knowledge
about the occurrence.
Defence declined to cross-examine this witness.
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(13) PW-7/Sri Abhisek Verma, a goldsmith has stated that about
4/5 months ago, while he was in his shop, police called him to the
police station along with his weighing apparatus and he weighed
some soil like materials which was in plastic packets. He stated that
police took his signature and address on blank paper.
In cross-examination, he stated that the weighed article which
was found to be 20/30 gms and he do not know what was in the
packet.
(14) PW-8/Sri Ratul Kalita has stated that on 16-03-12 while he was
working at Borbari Outpost, on the basis of secret information, Addl.
SP, HQ, the Officer-in-charge, Dibrugarh Police Station, went to the
house of the accused situated at Chandmarighat and conducted search
and found several packets of suspected brown sugar in an almirah
which was at the drawing room in the house of the accused. Police
seized the drugs which was found to be 1 kg. Ext. 2 is the Seizure
List wherein Ext. 2(1) is his signature. Seized articles were brought to
the police station.
In cross-examination, he stated that he has no personal
knowledge whether the house wherefrom the contraband articles were
seized, belongs to the accused or not. He stated that the accused is a
permanent resident of Kalibari. He denied the suggestion that brown
sugar was not recovered from the almirah of the house of the accused.
(15) PW-9/Smti. Rajuna Begum has stated that while police came
and inquired about the matter, she replied that she did not have any
knowledge about the occurrence.
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Prosecution declared this witness hostile as she resiled from her
earlier statement. Being cross-examined by the prosecution, she
denied the suggestion that her house is adjacent to the house of the
accused and she had given evidence before police and she was
present while police recovered the drugs from the house of the
accused and the accused was doing the drugs business which she
knew and police seized six plastic bags. She denied the suggestion
that she gave false evidence on that day in spite of knowing all the
facts of recovery of drugs from the accused.
In cross-examination by defence side, she stated that she never
saw the accused nor he resides in their locality.
(16) PW-10/Smti. Ayesa Begum has stated that has stated that she
do not know the accused and she does not have any knowledge about
the occurrence.
Prosecution declared this witness hostile as she resiled from her
earlier statement. In cross-examination made by prosecution, she
denied the suggestion that her house is adjacent to the house of the
accused and she had given evidence before police. She was present
while police recovered the drugs from the house of the accused and
the accused was doing the drugs business which she knew and police
seized six plastic bags. She denied the suggestion that she gave false
evidence on that day in spite of knowing all the facts of recovery of
drugs from the accused.
In cross-examination by defence side, she stated that she never
saw the accused nor he resides in their locality.
(17) PW-11/Sri Samsuddin Ali has stated he do not know the
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accused and the occurrence.
Prosecution declared this witness hostile as he resiled from his
earlier statement. In cross-examination made by prosecution, he
denied the suggestion that his house is adjacent to the house of the
accused and he had given evidence before police. He was present
while police recovered the drugs from the house of the accused and
the accused was doing business which he knew and police seized six
plastic bags. The value of that seized drugs was approximately
Rs. 50,00,000/-. Police also seized Rs. 60,000/- from the room
occupied by his wife, Smti. Mehrun Nessa. He also denied the
suggestion that he gave false evidence on that day in spite of knowing
all the facts of recovery of drugs from the accused.
(18) PW-12/Pratap Baruah has stated that on 18-04-12, while he
was working as Nayak in Dibrugarh Police Station, he along with
Bhuban Gohain went to News Live office situated at Khalihamari and
seized one video C/D from its Reporter, namely, Sri Suresh Dutta.
From the Reporter, he came to know that the CD was recorded during
seizure of brown sugar from the accused.
Defence declined to cross-examine this witness.
(19) PW-13/Sri Pranjit Bora has stated that on 16-03-12, while he
was at Dibrugarh as Addl. SP, HQ; the I/C of Borbari Outpost
informed him over phone that a consignment of contraband drugs has
arrived at Dibrugarh for sale to customers and dealers at Dibrugarh.
He along with other staff went to Chandmarighat to conduct raid in
the house of the accused. During their search, they found five sealed
packets, one loose packet containing suspected brown sugar and at
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that time, the accused was sitting alone on a sofa in a room of his
house. They apprehended the accused and seized the article. They
called a goldsmith and weighed the same which was found to be 1 kg
150 gms. Each sealed packets was 200 gms each and one packet
contained 150 gms. Sample was drawn from the seized articles
24 gms each which was sealed in presence of Judicial Magistrate,
1st Class, Dibrugarh. Search was made in another room of
the accused and cash amount of Rs. 60,000/- was found in an almirah
in the house of the accused and they seized the same. He again stated
that at the time of seizure, videography was done and the sample of
seized article was sent to FSL by him for necessary examination.
After examining the same, FSL sent the report to him wherein the
result of examination gave positive test for heroin”. Immediately, he
sent the report to the Officer-in-charge, Dibrugarh Police Station for
necessary action.
In cross-examination, he stated that In-charge of Borbari
identified the house of the accused. He denied the suggestion that the
house of the accused is not at Chandmari. He stated that he cannot
remember if the sample was prepared by mixing all the seized packets
or individually from the each packets. Ext. A is the Sketch Map of
the
place of occurrence prepared by SI B. Gohain where the place of
occurrence had been shown as Ashiya's room. A had been shown as
Mehrun Nisa's room and he do not know who are Ashiya and Mehrun
Nisa. Seizing officer took custody of the seized article at the place of
occurrence and he cannot say how the seized article was handled by
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the IO after seizing the article.
(20) PW-14/SI Ranjan Doley has stated that on 16-03-12, while he
was IC of Borbari Outpost under Dibrugarh Police Station, at about
5:00 am, he got a secret information that some drugs dealer gathered
in the Chandmarighat along with some suspected drugs and
immediately, he contacted the Addl. SP, HQ, Officer-in-charge,
Dibrugarh Police Station and rushed to the spot along with his staff
in civil uniform to Chandmari. On their way, they kept watch on the
house of the accused and apprehended one Karim Ali, who was going
out from the house of the accused, who is the cousin of the accused.
They took him to Borbari Outpost and interrogated him and came to
know that the accused was in that house and some drug dealer would
come for the purpose. They again went back to Chandmarighat and at
that time, Addl. SP, HQ/PW-3, DSP (P) and Officer-in-charge,
Dibrugarh Police Station arrived on the spot. They all entered into the
house of the accused and as per instruction of Addl. SP, HQ, they
searched the house and found the accused making some small
packets of suspected brown sugar in the house of Mofijul Hussain
(a neighbour). He has stated that all six suspected drugs were on the
table in front of the accused. As per instruction of Addl. SP (HQ), he
called a goldsmith and weighed the drugs which was found to be
200 gms each and one packet of 180 gms. All the drugs were in
polythene packets and he seized the same vide Ext. 2 wherein
Ext. 2(6) is his signature. He also seized the weighing scale which
was used for weighing the drugs vide Ext. 3 wherein Ext. 3(4) is his
signature. When they interrogated the accused, he confessed his guilt
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and told that value of 3 (three) packets of drug is Rs. 50, 00,000/-.
Thereafter, they searched the house of the accused and seized an
amount of Rs. 60,000/- which was kept in an almirah. Ext. 1 is the
Seizure List wherein Ext. 1(3) is his signature. When they questioned
the accused, he stated that the house belonged to his first wife and
son, who resides there. He stated that videograph was made at the
time of seizure by calling News Live officials. In the process, they
apprehended another person, namely, Nazir Ali and took him and the
accused to the police station along with the seized article. Thereafter,
he filed a report before the Officer-in-charge, Dibrugarh Police
Station and he registered a case. Ext. 5 is the ejahar wherein Ext. 5(1)
is his signature. He handed over the accused persons along with the
drugs to the Officer-in-charge, Dibrugarh Police Station. Material
Ext. 1 is the seized notes of Rs. 60,000/-. Material Ext. 2 is the token
sample of suspected brown sugar of 24 gms.
In cross-examination, he stated that he did not submit any
written report in respect of secret information to his immediate
officer. During his search, he found three persons, namely, Illahi
Seikh, Nazir Ali and Karim Ali. He denied the suggestion that he
mentioned in his
ejahar that they kept watch the house of the accused. They
apprehended one Karim Ali, who was going out from the house of the
accused and interrogated him and brought him to the police station.
He stated that he never visited the house of the accused and on the
basis of reliable source, he came to know that the house belongs to
the accused. He made search in two houses and he did not make any
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inventory of the seized article nor produced the same before the
Magistrate. He took samples from different packets separately. He
denied the suggestion that at the place of occurrence, there is no
house belonging to the accused person. He stated that he seized the
contraband article from the house of Mofijul Hussain. He denied
the suggestion that he never called the goldsmith and weighed the
seized articles. He also denied the suggestion that the accused
admitted his guilt and the value of seized article was Rs. 50, 00,000/-.
He stated that as per his findings, the house from which he seized the
contraband article belongs to the accused, his first wife and his son.
He denied the suggestion that the accused did not disclose before him
that his first wife and son were residing in the said house. He stated
that he neither recorded the statement of the first wife and son of the
accused nor any person nearby the house of the place of occurrence.
He denied the suggestion that he did not find the accused along with
the drugs as stated by him and the house of accused is at Kalibari and
not in Chandmarighat. He also denied the suggestion that at the time
of seizure, only police personnel were present.
(21) PW-15/SI of Police, Bhuban Gohain has stated that on
16-03-12, while he was at Dibrugarh Police Station as ASI of Police,
at about 1:00 pm, the Officer-in-charge called him to Chandmari
Ghat and he rushed to the spot. There, he found Addl. SP, Pranjit
Bora, DSP (Probationer), Ponjit Duorah, IC Borbari, SI Ranjan Doley
and Inspector OC Hiranya Kumar Bora surrounding the house of the
accused. They seized 1.150 kg of brown sugar and cash amount of
Rs. 60,000/- from the accused. He again stated that they made six
packets and drawn six samples from those packets and took the
signatures of the accused and witnesses as per procedure. Thereafter,
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he took the accused along with other accused, namely, Nazir Ali and
Karim Ali. Thereafter, SI Ranjan Doley filed a report before the
Officer-in-charge which was treated as FIR and entrusted him to
investigate the case. Immediately, he rushed to the place of
occurrence and examined the complainant and available witnesses.
He examined the accused persons, arrested them and forwarded them
to custody He seized one video cassette which was recorded at the
time of seizure. Ext. 4 is the Seizure List wherein Ext. 4(3) is his
signature. He took steps to send the seized samples to FSL through
Addl. SP (HQ). Ext. 5, 6, 7 & 8 are relevant documents.
Sample was sent by Special Messenger which was received by FSL
on 19-03-12. Ext. 11 is the receipt of FSL. The FSL Report was
received through Addl. SP, HQ wherein the result of examination
mentioned as Ext. DN-69-2012(a) to DN 69/2012 gave positive test
for heroin and percentage of heroin was found to be 14.13, 15.32,
14.66, 17.19, 18.00, 16.28 respectively. Ext. 9 is the FSL report and
Ext. 10 is the forwarding letter. After going through the report and the
diary, he filed charge sheet against all the accused persons u/S 21(c)
of the NDPS Act. Ext. 12 is the Charge Sheet wherein Ext. 12(1) and
Ext. 12(2) are his signatures. Material Ext. 1 is the seized video disk.
In cross-examination, he stated that he opened the case diary on
16-03-12. The ejahar in this case was received at 04:10 pm and at
5:30 pm, he reached at the place of occurrence. On reaching the place
of occurrence, he found the following persons, namely, Samsuddin
Ali,
Md. Iesa Begum, Sri Atma Yadav and Md. Rasina Begum. He
examined the above named persons as witnesses and make them
charge sheeted witnesses in this case. He did not get the
Officer-in-charge, Dibrugarh Police Station, Addl. SP, Dibrugarh,
In-Charge of Borbari Outpost, Ranjan Doley or any other police
officer. Ranjan Doley accompanied him to the place of the occurrence
after registration of the case. At 4:30 pm, he recorded the statement of
the witnesses, Ranjan Doley, Pranjit Bora, Addl. SP, HQ, Ponjit
Duorah on 16-03-12 in Dibrugarh Police Station within about 10
minutes. He completed the case diary on 16-03-12 itself. He was the
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part and parcel at the police party who conducted the search. As
police officer, he was interested in the case right from the starting of
conducting raid. He do not know if under the provisions of NDPS
Act, no police officer who was a part of the raid, can be appointed as
investigating officer. Though he was present, he do not know the
weight of the seized alleged contraband article.
(22) During the course of investigation, he never seized the alleged
contraband article stated to be recovered from the house of the
accused person. There is nothing in his diary to indicate as to how
and where the alleged contraband article were kept after alleged
seizure. He handed over the alleged seized article to the Addl. SP for
sending the same for FSL examination. There is no bar in sending the
sample to FSL by himself. There is no mention in the diary as to why
the alleged seized article were sent by Addl. SP to the FSL. While
asking him to go to Chandmari Ghat, the OC told him that the
cordoned house belonged to accused Illahi Seikh. He neither know
the holding number of the house nor did he conduct any investigation
regarding the ownership of the house. He did not even go the
Municipal Board to inquire about the ownership and residents of the
house. He did not examine the Ward Commissioner to ascertain the
ownership and residents of the searched house. He did not investigate
whether during the course of search of the house of the accused, any
responsible person of the locality was called by police or not. During
investigation, he did not examine any responsible person of
Chandmari locality as witness in this case. He did not collect any
documentary evidence relating to ownership and residents of the
house searched by police. He cannot say wherefrom the alleged
contraband articles were recovered by police nor he knows
wherefrom Rs. 60,000/- were taken out by police. He had been in
Dibrugarh Police Station for one and half years since before this case.
He knew Illahi Seikh from after joining Dibrugarh Police Station in
2011. He know that accused Illahi Seikh has his residential house in
Kalibari road opposite to fish market, Dibrugarh. Illahi Seikh has
sufficient number of rented quarters as well as shop houses in
Kalibari area. He cannot deny that Illahi Saikh has no house in
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Chandmari Ghat area. He also cannot deny that the rented house did
not belong to Illahi Seikh. He cannot say whether the media reporters
were called before or after the alleged search. He only came to learn
that there was a video cassette, so he seized the same. He denied the
suggestion that he do not have any authority to investigate the case.
He denied the suggestion that the investigation conducted by him is
illegal and the same is not prescribed by law. He did not carry any
packet of alleged brown sugar from the place of occurrence. He did
not ascertain as to in whose presence the alleged contraband article
and the amount of Rs. 60,000/- were seized. He did not see personally
the packaging of alleged brown sugar into six packets. He denied the
suggestion that no contraband article as alleged was seized from the
possession of accused. He denied the suggestion that the police
officers made the conspiracy to implicate the accused in a false case
and accordingly, the case was framed. He denied the suggestion that
the FSL Report is not pertaining to the alleged seized articles.
(23) The brief argument of the learned P. P. Mr. Sanjib Bhuyan is
that there is sufficient corroboration in the evidence given by the
police officers on duty which is supported by independent witnesses
and as such charge can be stated to be proved against the accused
person.
(24) On the other hand the learned defence counsel Mr. Ranjit
Borthakur vehemently argued that the prosecution has not at all been
able to prove the case as has been claimed by the learned P.P. due to
several infirmities which as follows.
(i) It has been assailed that search and seizure has not been
made in conformity of legal provision of NDPS nor as per Sec.
100 CrPC for which the whole case is vitiated. No respectable
person of the locality is examined at the time of search and
seizure though police went to place of occurrence in
pre-planned manner. No any ground is assigned as to why
they avoided to follow the same.
(ii) The prosecution measurably failed to prove ownership of
the house where the search was made. There are discrepancies
of witnesses regarding the ownership of the house of Elahi
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Seikh as to who resided in the said house. The I. O. himself
admitted that nothing was done to confirm that the house
belongs to the accused Elahi Seikh and or was his immediate
possession. It is also admitted that house of accused Elahi is at
Kalibari.
(iii) In the sketch map Ext. ‘A’ no where mentioned that the
house where from article was seized is belongs to accused Elahi
Seikh. The picture shown in the sketch map indicator ‘A’
shows the rooms of one Meherun Nisha where from cash
money was recovered and nearby houses B to F are shown as
house of Karim Ali, Kashem Ali, Shewbadan, Samsuddin,
Teribuddin Ali and the PW-13/Addl. S. P. Mr. Pranjit Bora has
stated he does not know who are those Ayesha and Meherun
Nisha, while admittedly by him the article was recovered in his
presence. Obviously two facts cannot run together regarding
recovery. Two ladies shown in the sketch map is not made
accused.
(iv) The case is bad for violation of Sec. 42(2) NDPS Act. as
the information received by the informant was not reduced to
writing while he has ample time to do so. The information was
received at the early morning and they went for raid in the mid
day. Further the case is bad for non compliance of Sec. 52 (A)
(2) NDPS Act. regarding seizure.
(iv) There is no value of the confessional statement if any made
by the accused before the police/I.O. in view of legal bar as per
Sec. 25 of evidence act.
(v) The case is bad for non examination of chemical examiner
and adverse inference can be drawn for withholding material
witness.
(vi) The prosecution failed to ensure free and fare trial as
regard the fact that where from the seize article was recovered.
The ground of arrest was not communicated to the accused
which is compulsory as per Sec. 5o CrPC.
(vii) The identity of drugs is not made out by the witnesses to
ascertain the correctness of seizure due to serious contradictory
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statement of the police officers as well as the other independent
witnesses.
(viii) The G. D. entry is not proved. To prove the authenticity
of the information except mentioning about the number of the
G. D. entry by the I.O., he did not produced the same.
(ix) The case clouded by the shadow of doubt in view of the
evidence of police officer Mr. Ranjan Doley/informant, who
claimed to have seized the article/drugs from the house of one
Mofizul Hussain, a neighbour. Then how it can be claimed by
the prosecution that the house is owned and possessed by the
accused Elahi Seikh as has been mentioned in the FIR. Thus
the informant himself has contradicted the contention of the
FIR and there is no mention of Karim Ali in course of trial
which is contrary to the FIR.
(x) The prosecution cannot establish the factum or recovery of
Drugs from the conscious possession of the accused person
Elahi Sekh. Because as per FIR drugs was recovered from the
possession of three persons including Elahi Seikh but in the
evidence nothing has been mentioned about the involvement of
the other two persons (of course they were discharged at the
time of charge, finding materials against them). Again the
sketch map so prepared by the I.O. reflects a complete different
picture as regard the ownership of the house as it shows the
place of occurrence is of one Meherun Nisha’s house.
(xi) Non of the seizure witness as well as independent witness
has supported the prosecution case to proved the recovery of
such huge quantity of drugs. So prosecution cannot claim to
succeed to establish the charge beyond all reasonable doubt.
(25) The learned defence counsel in support of his contention,
has relied upon the decision of Hon’ble Supreme Court in Noor
Aga –Vs- State of Punjab and another (2010) 96 AIC 176 SC,
wherein different provision of Section 35, 53-A, 54, 52-A and
other relevant Sections has been dealt with and has categorically
held that the procedure laid down under the Act being stringent
in nature, must be strictly complied with. The Court must
19
always remind itself that it is well settled principle of criminal
jurisprudence that more serious the offence, the stricter the
degree of proof. A higher degree of assurance thus would be
necessary to convict an accused. It is also necessary to bear in
mind that superficially a case may have an ugly look and
thereby prima facie shaking the conscience of any Court, but it
well settled that suspicion however high may be, can under no
circumstances be held to be a substitute for legal evidence.
(26) Similarly, in State of Punjab –Vs- Baldev Singh (1999) 3
SCC 977 and Ritesh Chakrawarty –Vs- State of Madhya
Pradesh (2006) (47) AIC 610, it has been held as below-
“It must be borne in mind that severe the punishment, greater
care has to be taken to see that all the safeguards provided in a
statue are scrupulously followed. Justness and fairness of a trial
is also implicit in article 21 of the Constitution. A fair trial is
again a human
right. The Courts in order to do justice between the parties, must
examine the materials brought on record in its case on its own
merit. Marshalling and appreciation of evidence must be done
strictly in accordance with well known legal principles
governing the same wherefor the provisions of the Code of
Criminal Procedure and Evidence Act must be followed.
(27) Another case relied upon by the defence side is
SH.F.VANLALRINGA-Vs- State of Mizoram (2010) (3) GLT
wherein it has been held by the Hon’ble Gauhati High Court
that where the Investigating Officer conducted search and
seizure on the basis of prior information, but same was not
reduced to writing and sent a copy to the Superior Officer and
20
due to the contradiction in the testimonies of witnesses about
identification of seized articles, the prosecution case is itself on
this point alone, cannot be legally sustainable for
non-compliance of mandatory requirement of Section 42(2) of
the Act.
(28) Another case referred by the defence side is SH Chanam
Ranjit Meitei –Vs- Union of India (2010) (3) GLT 361 wherein
it has been held that it is mandatory to follow the provision of
Section 52-A(2) NDPS Act after seizure of narcotic drugs of
psychotropic substance as has been mentioned therein and
seized articles should be kept in the custody of police
officer-in-charge and non-compliance of the same would render
the seizure doubtful. It is further discussed in the said case that-
“The manner in which the seized ganja was kept and handled
by the IO/Inspector is not free from possibility of manipulating,
even replacement while they were under his custody. Similarly,
it was the bounden duty of the prosecution to examine the
Chemical Examiner as a material witness, withholding of such
witness, caste a serious reflection and provide a chance to draw
an adverse inference against the prosecution.”
(29) As the defence has challenged the possession of the
house alleged to be occupied by Elahi Seikh and has denied that
nothing was recovered from his conscious possession and on the
point, the learned defence counsel has relied upon an
observation of Hon’ble Gauhati High Court in
ONYX.MAIPHOK & others –Vs- State of Assam & another 2010
21
(4) GLT 565 wherein it has been held that mere presence of a
person at the place of recovery is not sine qua non of his
involvement in the offence. It is also the settled law that
suspicion, however grave, cannot take place of proof. Even if
the movement of appellant at the place of recovery in suspicious
manner considered to be an adverse circumstances that it is not
enough to affirm their conviction in absence of corroborative
additional incriminating circumstances.
(30) Having regard to the rival contention of both sides, let us
analyse the case in hand in proper perspective of law and facts.
In the instant case, we have three sets of evidences which
comprises as below-
(i) PW-1 to PW-6 are seizure witnesses;
(ii) PW-7 & PW-10 to PW-12 are independent witnesses;
and
(iii) PW-8 & PW-13 to PW-15 are the official witnesses.
(31) CONTENT OF FIR AND EVIDENCE LED:
As per FIR filed by PW-12/Ranjan Doley, he along with other
witnesses, i.e., PW-13 to PW-15 and PW-8 entered into the
house of the accused and found accused Elahi and two other
persons, namely, Nazir Ali and Karim Ali and recovered 1 kg
and 150 gms brown sugar and Rs. 60,000/- from their
possession and it was seized in presence of witnesses.
(32) GLARING DISCREPANCIES IN THE EVIDENCE
OF THESE POLICE OFFICERS INCLUDING THE
INFORMANT.
22
In his evidence, the informant has stated that he found
the accused Elahi while preparing puria/small packets in the
house of Mofijul Hussain, a neighbour, which is in sharp
contrast to the FIR and his evidence lost credibility on this
score alone.
Without describing about involvement of other two
accused named in the FIR, the informant has stated that they
apprehend other two persons, namely, Nazir Ali and Karim Ali,
which is a weak piece of evidence.
(33) Contradicting the evidence of the informant, other police
officials, who were also present with the informant, the PW-13
has stated about presence of accused Elahi Seikh alone, but has
not mentioned about other two persons named in the FIR. The
evidence of PW-8/ASI of Police who happens to accompany
the informant and others, is destructive of the prosecution case
while he stated that Nazir Ali and Karim Ali were not found in
the house at the time of raid. He also stated that accused Elahi
is permanent resident of Kalibari and he do not know whether
the house where the article were seized, belongs to accused or
not.
(34) The informant himself fails to assert that the house
searched was belongs to accused Elahi Seikh. Moreover, in
view of his clear cut evidence that he seized the articles from
the house of Moffijul Hussain, the authenticity of the Seizure
List vide Ext. 1 and Ext. 2, wherein it is shown that Rs.
60,000/- and 1 kg .150 gms brown sugar was recovered from
23
the possession of accused Elahi Seikh, is totally at stake and
can be discarded having no credibility.
(35) The evidence of other witnesses, PW-13 & PW-15 that
they recovered the drugs from the house of accused Elahi
Seikh, lacks authenticity being not consistent with the evidence
of the informant. They have not uttered the name of Mofijul
Hussain at all.
(36) The evidence of these police officers that they called
PW-7 to weigh the seized contraband drugs to the place of
occurrence and on being weighed by him, it was found to be 1
kg and 150 gms. But denying the same, the said PW-7 has stated
that he was called to police station one day to weigh some
article which he does not know and it was found to be 20/30
gms and police took his signature on blank paper, which again
nullify the prosecution case.
(37) VALUE OF SEIZURE WITNESSES:
All the PW-1 to PW-4 have no doubt sign the Seizure Lists
vide Ext. 1, 2 & 3. But they have specifically stated that they do
not know wherefrom the seized articles were recovered.
(38) Further, PW-2 has stated that he did not see the accused
at the time of giving signature in the Seizure List. PW-3 is
totally silent about recovery of money of Rs. 60,000/-.
(39) PW-4 is not an eye-witness to the search and seizure and
his evidence is of no consequence. Equally PW-6 heard about
the recovery of drugs and nothing more.
(40) The set of seizure witnesses implicitly proved that they
24
were not present at the time of search and seizure and police
show them some drugs and money and they simply sign the
Seizure List as directed by the police officers. Situated thus, it
can be held that the Seizure List is not proved by prosecution.
(41) EVIDENCE OF INDEPENDENT WITNESSES:
The PW-10 to PW-12 are the resident of the locality,
Chandmarighat where the articles were seized from the alleged
house of accused Elahi Seikh, has clearly stated that accused
Elahi is not a resident of their locality and they never saw him
in the area, nor they have any knowledge about the occurrence.
Though they were declared hostile by prosecution, but they
denied to have given any evidence before police about the
recovery of drugs from the house of accused.
(42) Thus, the independent witnesses have not totally
supported the prosecution case and the claim of the informant
that search and seizure was made in presence of those
witnesses, is totally uncorroborated as found above.
(43) NON-COMPLIANCE OF LEGAL PROVISIONS
UNDER THE ACT:
The case initiated on the basis of earlier information, but
admittedly the informant did not reduce the information to
writing as per mandate of Section 42(2) NDPS Act nor he
submitted any written report to his superior authority. As has
been observed in the case law cited above, the case is not
sustainable for flouting the provisions of the Act.
(44) Evidence of the seizing officer reveals that he did not
25
produce the inventory of the drugs containing details, etc.,
identifying the article and nor produced the same before the
Magistrate for certifying the correctness of inventory as has
been mentioned in the provision of the Act and thus did not
follow the provision of Section 52-A(2) NDPS Act. In view of
the violation of provision, the seizure itself lacks legal sanctity
as has been held in the above mentioned case by the Hon’ble
High Court.
(45) CONCLUSION:
There are large numbers of discrepancies in the evidence
on record, particularly, contradictions in the statement of
official witnesses. Non-examination of Forensic Expert and
other non-application of legal procedure while at the time of
search and seizure nor as per the NDPS Act or as per the
Criminal Procedure Code, the case of the prosecution cannot be
accepted to arrive a conclusion of guilt of accused.
(46) The Hon'ble Supreme Court in State of Punjab -Vs-
Baldev Singh in Manu-SC 0981/1999, has answered certain
queries that whether the mandatory provision of NDPS Act is
required to be followed. It has been held as below-
The investigating agency must follow the procedure as
envisaged by the statute scrupulously and failure to do so, must
be viewed by the higher authorities seriously inviting action
against the concerned officials so that the laxity on the part of
the investigation, authority is curbed. In every case, the end
result is important, but the means to achieve, it must remain
above board. The remedy cannot be worse then the disease
itself. The legitimacy of judicial process may come under
cloud if the Court is seen to condone acts of lawlessness
conducted by the investigating agency during search operations
and may also undermine the respect for law and may have the
effect of unconscionably compromising the administration of
26
justice that cannot be permitted. An accused is entitled to a fair
trial. A conviction resulting from an unfair trial is contrary to
our concept of justice. The use of evidence collected in breach
of safeguards provided under the Act, would render the trial
unfair.
(47) In view of the discussions and findings above, I am
constrained to hold that prosecution has failed to proved the
charge under Section 21(C) NDPS Act beyond all reasonable
doubt and I acquit the accused person on the benefit of doubt.
Seized article be destroyed in due course of law and the seized
money of Rs. 60,000/- is confiscated to the State.
(48) Now in the case in hand, the Court is aware that present
accused person is prime accused in so many cases with the
allegation of handling of drugs which may have serious impact
in the society. But the Court itself cannot shoulder the liability
to grab such menace in the society unless the proper material
with legal evidence is placed by the investigating agency. The
offence under the NDPS Act being serious in nature, it is the
mandate of law to follow the various procedure embodied in
the Act itself. But it is a measury to note that most of the
serious cases fails for want of proper investigation. I do hereby
draw the attention of the Superintendent of Police, Dibrugarh
to look into the matter with serious concern.
(49) Send a copy of this Judgment to the Superintendent of
Police, Dibrugarh for information and necessary action.
Delivered my hand and seal of this Court on this the 26th
day of February, 2014.
Dictated and corrected by me:-
Special Judge, Dibrugarh
Special Judge, Dibrugarh
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APPENDIX
List of witnesses:
(1) P.W. 1 Md. Mehmud Ali;
(2) P.W. 2 Md. Hussain Nawaz;
(3) P.W. 3 Sri Binod Raut;
(4) P.W. 4 Sri Sudama Pandey;
(5) P.W. 5 Sri Suraj Dutta;
(6) P.W. 6 Sri Atma Yadav;
(7) P.W. 7 Sri Abhisek Verma;
(8) P.W. 8 Sri Ratul Kalita;
(9) P.W. 9 Sri Pratap Boruah;
(10) P.W. 10 Sri Samsuddin Ali;
(11) P.W. 11 Smti. Ayesa Begum;
(12) P.W. 12 Smti. Rajuna Begum;
(13) P.W. 13 Sri Pranjit Borah;
(14) P.W. 14 SI Ranjit Doley; and
(15) P.W. 15 Sri Bhuban Gohain.
List of Exhibits:
(1) Ext. 1 Seizure List;
(2) Ext. 2 Seizure List;
(3) Ext. 3 Seizure List;
(4) Ext. 4 Seizure List;
(5) Ext. 5 FIR;
(6) Ext. 6 Forwarding Note;
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(7) Ext. 7 Authority Letter;
(8) Ext. 8 Arrest Memo;
(9) Ext. 9 Report of the FSL;
(10) Ext. 10 Forwarding Letter of FSL;
(11) Ext. 11 FSL Receipt; and
(12) Ext. 12 Charge Sheet.
List of witnesses and Exhibits for defence- None
Special Judge,Dibrugarh
Typed by:-Bhaskar Jyoti Bora, Steno.