In the Court of Additional Sessions Judge No. 2, …kamrupjudiciary.gov.in/judgments...

Sessions (Spl) Case No. 184 (K)/2009

In the Court of Additional Sessions Judge No. 2, Kamrup (Metro), Guwahati.

Present:- Sri S. K. Poddar, AJS,Additional Sessions Judge No. 2

Kamrup(M), Guwahati.

Sessions (Spl) Case No. 184 (K)/2009U/S 8(C)/20(b)(ii)/29 of NDPS Act. (Arising out of DRI Case No. 01/Narc/Ganja/DRI/Gau/2009-10) UNION OF INDIAThroughIntelligence officer of DRI-vs-1. Sri Dipak Kumar Singh,S/o-Late Joginder SinghVill:- NayaganjP.S:- Desri,Dist:- Biashali (Bihar)

2. Sri Swapan Kumar Roy,S/o– Late Amulya Kumar Roy,Vill:- MurkatiP.S:- Raina,Dist:- Burdawan (WB) …. Accused persons.Advocates Appeared:-Mr. Rituraj Baishya, ...... Special P.P. for the DRI.Mr. Hemanga Kr. Sharma …………… for the defence.

Offence detected on:- 04.06.2009Complaint filed on:- 27.11.2009Evidence (before charge):- 10.12.2012, 18.02.2013, Charge framed on :- 05.03.2013Evidence (after charge):- 18.03.2013, 02.04.2013, 08.04.2013,29.04.2013, 06.06.2013Accused Examined on :- 06.02.2014Argument heard on:- 10.03.2014 Judgement delivered on :- 24.03.2014 of 21


J U D G M E N T1. Prosecution case in brief is that on the basis of specific intelligence report received on 02.06.2009 regarding carrying of about 3000 KG of Ganja by the truck bearing registration no. WB-25B-4251, a team of officers of the Directorate of Revenue Intelligence (in short DRI) spotted the said truck at Azara Guwahati, and on violation of signal to stop, the said officers chased the said truck and ultimately able to intercept the said truck on 03.06.2009 at Panbari BSF Camp area on the NH 31 in the District of Dhubri, Assam. At that time driver Sri Swapan Kr. Roy and the cleaner (Khalashi) Sri Dipak Kr. Singh were found in the said intercepted truck. On preliminary interrogation by the DRI Officers, the apprehended driver Sri Swapan Kr. Roy confessed of having load of Manipuri Ganja concealed under load of coal in his truck and that the consignment of the Ganja belonged to one Baharuddin @ Bahar. The DRI officers brought back the loaded truck to Guwahati along with the driver Sri Swapan Kr. Roy and the handyman (Khalashi) Sri Dipak Kr. Singh for thorough checking. Upon detail checking of the truck in presence of the accused persons and two independent witnesses, DRI officials recovered 211 packets of Ganja having total weight of 3549 Kg under a load of 23 MT coal. The said ganja, coal, truck and relevant papers of the truck, consignment of coal etc. were seized vide case No. 01/NARC/GANJA/ DRI/GAU/2009-10 dated 04.06.2009. Statements of accused persons were recorded. Accused Sri Swapan Kr. Roy and Sri Dipak Kr. Singh were arrested and produced before CJM Kamrup and remanded to Judicial custody. 2 Upon completion of the investigation, formal complaint u/s 36A of NDPS Act for prosecution u/s 8(C)/20(b)(ii)/29 NDPS Act was submitted against the above named 2 accused person and 3 others namely Baharuddin @ Bahar of Nagaon Assam, Mrs. Provabala and Sri Harekrishna Bala @ Moran Bala both of Purulia, west Bangle showing them as absconders.2.1 On receipt of the complaint, cognizance of offence was taken and WA were issued against absconder accused persons. Accused persons of 21


Dipak Kr. Singh, (2) Sri Swapan Kr. Roy were inside the jail custody and faced the entire trial as UTP. Subsequently, attendance of accused Sri Harekrishna Bala @ Moran Bala was procured by issuing production warrant to Special Correctional Home, Berhampur WB, where said accused was kept in custody in some other cases under NDPS Act. 2.2 Vide order dated 04.09.2012, case of accused (i) Dipak Kr. Singh, (ii) Sri Swapan Kr. Roy and (iii) Sri Harekrishna Bala @ Moran Bala was split-up from other absconder accused persons namely Baharuddin and Prova Bala. Copies of relevant papers u/s 208 Cr.P.C. were furnished and evidence before charge was recorded. Upon hearing both the sides, vide order dated 05.03.2013, the then Additional Sessions Judge (FTC) No. 3 has framed charges u/s 8(c)/20(b)(ii)/29 of NDPS Act against accused (1) Dipak Kr. Singh, (2) Sri Swapan Kr. Roy and (3) Sri Harekrishna Bala to which they pleaded not guilty to the said charge and claimed to be tried. 3. During trial prosecution has examined 6 witnesses in support of their case. It may be noted here that accused (1) Dipak Kr. Singh, (2) Sri Swapan Kr. Roy faced the trial by engaging their own advocate and during trial, accused Harekrishna Bala was represented by his engaged advocate as the said accused was under custody at Special Correctional Home, Berhampur WB. 4. Upon completion of evidence of prosecution side, on 06.06.2013 evidence for prosecution was closed and production warrant was issued to Superintendent, Special Correctional Home, Berhampur WB for production of the accused Harekrishna Bala @ Moran but inspite repeated production warrants, his attendance could not be procured. In the mean time, on 29.12.2013 the case was withdrawn from the Court of Additional Sessions Judge (FTC) No. 3, Kamrup Guwahati and transferred to this court for disposal. Even issuing fresh production warrant by this court, attendance of accused Harekrishna Bala @ Moran could not be procured and as the other two accused persons namely Dipak Kr Singh and Swapan Kumar Roy were languishing in jail for long, vide order dated 14.01.2014 case against accused Harekrishna Bala @ Moran was split up of 21


from the case of other two accused persons and on 06.02.2014, accused persons namely Dipak Kr Singh and Swapan Kumar Roy were examined u/s 313 Cr.P.C.5. Defence case as revealed from the trend of cross-examination is of denial of possession of recovered Ganja. Accused Swapan Kr. Roy in his 313 Cr.P.C. has admitted that he was the driver of the truck No. WB-25B-4251 and on the relevant date, his truck was intercepted at Panbari and brought back to Guwahati. However, he denied the allegation of recovery of Ganja in his presence or his knowledge of loading of contraband Ganja in the truck driven by him. Accused Dipak Kr Singh has denied his presence in the said truck and has taken the plea that he was picked up from a ‘dhaba’ at Guwahati and was falsely implicated in this case. Upon calling them to enter into defence, both the accused persons declined to adduce any evidence on their behalf.6. I have heard oral arguments of the learned counsels of both the side and gone through the case record and evidence carefully. Learned advocate for the accused has also submitted a written argument. Points for determination are:-7. (i) Whether DRI officers have recovered 211 packets of ganja having total weight of 3549 KG from the Truck No. WB-25B-4251?(ii) Whether the accused Swapan Kumar Roy and Dipak Kumar Singh were in conscious possession of the said Ganja in the Truck No. WB-25B-4251?(iii) If so, whether they did so in furtherance of their common intention of trafficking of contraband ganja? Decision thereon and reasons for the decision:-8. In the course of argument hearing, learned advocate for the complainant by referring the oral and documentary evidence as proved during trial, has vehemently submitted that prosecution has been able to prove the case beyond doubt that 211 packets of ganja having total weight of 3549 KG was recovered from the Truck No. WB-25B-4251 which was kept concealed under the load of coal. It was also argued that from the seized documents, it revealed that on 02.06.2009, coal was

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loaded from Guwahati and on the basis of specific information recorded vide Exbt. 3, the team of officers of DRI intercepted the truck at Panbari and recovered the ganja. At the relevant time, same was driven by accused Swapan Kumar Roy and accused Dipak Kr. Singh was present in the truck as Khalashi. It is also argued that Accused Swapan Kr. Roy has admitted the fact that he was the driver of the said truck and accused Dipak Singh was the cleaner at the time of apprehension and they have failed to explain as to how the ganja was loaded in their truck. Violation of signal to stop at Azara also shows that accused persons were aware of the contents in their truck and hence tried to flee away. As such the fact of conscious possession of the accused persons is proved. 9. Learned defence counsel Mr. Hemanga Sarma in his argument mainly concentrated his submission on non compliance of various provisions of NDPS Act. He also argued to create a doubt regarding recovery of ganja from the truck due non-examination of independent witness and non production of seized articles in court. Ld Counsel has submitted that section 50 NDPS Act was not complied inspite of making body search of the accused persons after alleged recovery of Ganja from the truck, non compliance of section 52A and 60 in accordance with law. Learned advocate for the accused has also submitted that the alleged compliance u/s 42 NDPS Act as shown in the case record was after thought and Exbt. 3 as a concocted document simply because of the fact that in Annexure A to Exbt. 9 (the fact of the case produced to CJM along with the accused persons) shows that on 02.06.2009, at 4 pm search was initiated for the truck No. WB-25B-4251 at Beltola Parking area and as per Exbt. 3, the sheet by which the secret information was reduced into writing shows that same was received on 02.06.2009 at 5.20 pm. Defence also argued that no voluntary statement of the accused were recorded and the statements shown to have been recorded u/s 67 NDPS Act in interrogatory form. To substantiate his submissions, learned defence counsel has also referred the below noted reported cases. Chanu Ranjit Meitei –Vs- Union of India, [2010(3) GLT 361], Jitendra & Ors. –Vs- State of M.P. (2004) 10 SCC 562, of 21


Union of India-Vs- Bal Mukund & Ors. (2009) 12 SCC 161,State of Rajasthan-Vs- Gurmit Singh, (2005) 3 SCC 59,Sarat Kumar-Vs- State of MP, 2005 Crl. L.J. 2272(MP)Bohar Singh –Vs- State of Punjab, 2000(1) EFF 65(P&H),Shiv Kumar Ashok Mishra-Vs- Special Judge 1996 Crl. L.J. 1454 (Bom)Alma Singh –Vs- State of Punjab, 1996(2) HC10. I have considered the submissions of both the sides. Let me not down the salient aspect of the evidence on record first. PW1- Dr. Gajendra Nath Deka, Dy. Director, Drugs and Narcotics division at DFSL, Assam, Kahilipara in his evidence deposed that on 06.06.2009 he has received a parcel i/c with the DRI Case No. 01/NARC/Ganja/DRI/ Gau/2009-10 consisting of three exhibits in a sealed envelop marked as “A1, B1 & C1” containing 25 grams dry plant materials in each. Upon examination following United Nations Manual, those dry plants materials gave positive tests for cannabis (ganja). He proved his report Ext-1 which was forwarded by Director FSL vide Ext-2. In cross-examination the conclusion drawn by him remained unshaken. 11. PW 2, Sri Dhrubajyoti Sarma is the seizing officer of this case. In his evidence he deposed that on 02.06.2009 at about 5.10 pm Sri S.K. Mahanta, Deputy Director DRI on receipt of a specific information regarding carrying of more than 200 packets of Ganja in Truck No. WB-25 B-4251 through NH-37 proceeding towards West Bengal, same was reduced in writing vide Exbt. 3 and by forming a team, directed DRI official namely Sri Gautam Das, Sri Sujit Das, A.K. Baruah and U. Kashyap and others to apprehend the said truck. Accordingly, PW 2 along with above officers went to intercept the truck at Azara on N.H. 37 and waited there along with two local persons namely Srikanta Nath and Sri Bipul Handique by informing their intention to intercept the said truck carrying Ganja on our request said two persons agreed to witness of the fact of interception. On 03.06.2009 at about 1 AM in the mid night, they saw the said truck while coming from Jalukbari side and signalled to stop but the driver avoided their signal and flee away. Thereafter, he alongwith DRI officer namely A.K. Borah and A. Kashyap chased the said truck in their official vehicle and at about 8.00 A.M. they could be able to intercept the of 21


said truck at Panbari BSF Camp area within the District of Dhubri, Assam. On intercepting the truck they found two persons namely Sri Swapan Das as driver and Sri Dipak Singh. On spot interrogation, said 2 persons admitted that under the load of coal, they were carrying Ganja in packets. Thereafter for making thorough search, they brought back the truck No. WB-25/4251 to Patharquary area of Guwahati. In presence of accused persons, witnesses and DRI Officers, the coal was unloaded and recovered 211 packets of Ganja covered in polythene. The total weight of those packets was 3549 kg. The weight of the unloaded coal is 23 MT. On this aspect, a weighment sheet was prepared vide Ext-4. At that time, the witnesses Sri Banti Das, Bipul Handique were present and put their signatures. Thereafter, cabin of the truck was searched. Accused Swapan Roy and Dipak Kr. Singh were also personally searched in presence of Deputy Director DRI and recovered the papers related to coal. Inventory was prepared Vide Ext-5. The whole process was completed on 04.06.2009. After this, DRI Case No.1/NARC/DRI/seized 2009-2010 was registered. Statements of Swapan Kumar Roy and Dipak Kr. Singh were taken in writing in which both of them admitted the fact of carrying Ganja in the truck. Thereafter, on 04.06.2009 at about 5.p.m. said Swapan Roy and Dipak Singh were arrested and on 05.06.2009 both were produced before C.J.M. Kamrup. PW 2 also deposed that that he has drawn representative samples from the seized Ganja packets and sample were sent to forensic laboratory for chemical testing vide Ext-7 forwarding letter and test memo vide Ext-8. On 05.06.2009, he informed the matter to their higher authority vide Exbt. 9. The said Ganja alongwith the truck and its documents were seized u/s 43 of NDPS Act. PW 2 identified accused Dipak Kr. Singh and Sri Swapan Roy in Court room. PW 2 also deposed that have also prepared a Panchnama (seizure list) vide Ext-6 in presence of the independent witnesses namely Basanta Das and Bipul Handique. Intelligence officer Sri A.K. Baruah has done the further investigation. On completion of investigation, the I/O has submitted the formal complaint by Exbt. 10. He also deposed during investigation, he came to know that said Ganja belongs to Baharuddin and was to be of 21


delivered to Harekrishna Bala @ Moran and the truck belongs to Smti. Prova Bala. 11.1 During cross-examination PW 1, admitted that at the time of production of the accused person before, CJM, the slip containing information was not produced. He denied that by this they have violated the provisions of Section 42 of NDPS Act. PW 1 also admitted that while intercepting the truck at Panbari BSF Camp area, he has not called the people of that locality. At the time seizure at Pattharquary area, they have not called local people of the area to be a witness the seizure. Since 02.06.2009 till 04.06.2009, the independent witness of this case were with them. PW 1 denied that by not calling witnesses from local area they have violated Sec. 100 Cr.P.C. He admitted that Sample were drawn randomly. PW 1 denied that he has not prepared inventory as required U/S 52A of NDPS Act. He also denied that no Ganja was seized from the seized truck and accused persons has no knowledge of recovery of Ganja. He also denied that after obtaining signature/T.I. Marks on blank paper, they have prepared the seizure list etc. PW 1 admitted that from Panbari BSF Camp, they have brought the truck by another hired driver. 12. PW 3 Arun Kr. Barua and PW 5 Sri Uma Sankar Kashyap in their evidence deposed in almost similar lines with PW 2 on material points i.e. on laying naka at Azara, violation of stop signal, chasing the truck up to Panbari, intercepting the truck at Panbari, finding the accused Swapan Roy as driver and Dipak Singh as cleaner of the truck, bringing back the truck to Guwahati. PW 3 and 5 also deposed that as it was difficult to recover the goods (ganja) at N.H.Way, the said truck was brought to Guwahati along with the apprehended person in loaded condition. PW 3 and 5 further deposed that on initial questioning, driver Swapan Kr. Roy stated that the consignment of Ganja belonged to one Baharuddin @ Bahar. PW 3 and 5 also deposed that as it was dark and in absence of proper lighting. on the next day i.e. on 04.06.09 in morning hours the coal was unloaded from the intercepted truck with the help of labourers. Accused persons were present at that time. of 21


12.1 PW 3 in his evidence also deposed that from the statement of Swapan Kr. Roy, he came to know that the apprehended truck of this case, belonged as Mrs. Probha Bala of Purulia in Burdawan District of West Bengal and that Ganja was supposed to be received by Sri Harekrishna Bala @ Moran Bala of Purulia, Dist. Burdawan, West Bengal. Subsequent investigation by DRI Zonal Office, Kolkata, has confirmed the ownership of Prabha Bala for the seized truck, as per engine number and chassis. However, the number plate was different. The original registered number of said vehicle should be WB-J-6016 in place WB 25-B-4251. The DRI Kolkata office issued summons to Probha Bala & Harekrishna Bala but they did not appear before DRI HQ as directed. The Driving licence of Swapan Kr. Roy & Deepak Kr. Singh were also recovered. All the recovered goods were seized by the seizure officer Sri D.J.Sarma (PW 2). Seizure formalities were completed in the afternoon of 04.06.2009. Seizure list was prepared by D.J. Sarma. Statement of Swapan Kr. Roy & Deepak Kr. Singh were recorded. 12.2 PW 3 further deposed that he had investigated this case at letter stage. Based on the statement of Sri Swapan Kr. Roy, it is learnt that coal was loaded from Beltola on 01.06.09 in the night hours and after loading the driver proceeded to Amingaon on that night. In Amingaon, consignment of Ganja was transhipped in the intercepted truck from another truck registered with Nagaland Number. On completion of investigation he laid the complaint vide Exbt. 10 against Sri Swapan K. Roy (Driver), Sri Deepak Kr. Singh (cleaner), Baharuddin @ Bahar, Mrs. Prabha Bala & Sri Harekrishna Bala. He also identified the persons apprehended in the truck with coal ganja. 12.3 PW5 Sri Uma Sankar Kashyap in his evidence further deposed that from the said truck No. WB-25-B-4251 the total quantity was ganja was 3549 kg. The above Ganja was kept hidden under about 23 M.T. of dust & coal of Khasi Hill. Original Documents relating to vehicle or coal were recovered. Seizure under NDPS Act was made 3 number of representative sample in Duplicate i.e. 6 nos. of samples were drawn from of 21


recovered Ganja and sealed in presence of Driver/Handiman & witnesses. PW 5 deposed that he took statement of accused Swapan Kr. Roy (Driver of seized Truck) in presence of Sri G. Das (Sr. Intelligence officer ). In his statement the Driver confessed that he has been driving the truck for almost a month and half and this was the third time, he was carrying Ganja to Burdawan Dist- West Bengal. The owner of the Ganja was one Baharuddin @ Bahar & Shiv Bihari Singh. The Ganja was supposed to be handed over to Moran Bala @ Harekrishna Bala who was also the real owner of the truck. The driver stated that after loading the coal at Beltola Guwahati, he went to Amingaon where he transhipped the said Ganja from another truck bearing No. NL-01-2213 and came back to Beltola & loaded the rest of the coal. He also proved his signature on Ext-11, the statement of accused Swapan Kr. Roy. 13. In his cross-examination, PW 5 denied that they have taken the independent witness from Guwahati to Azara. Ext-11 is not a voluntary statement but is interrogatory form. It is not a fact that Ext-11 is not a confessional statement. He also denied that Ext-11 statement was prepared by them on their own and accused has not gave the answers as shown in Ext-11. Under the LTI of marks of accused in Ext-11, there is no mention that the same were taken by him. In Ext-11 there is no mention that after recording the statement the same was read out to accused by translating in Bangla language & T.I. Marks of accused was obtained. PW 5 denied the suggestion that except preparing Ext-11, he has no role in search, seizure, recovery etc. 13.1 During cross-examination said PW 3, he has admitted that in Ext-10, the complaint, he has not mentioned the name of the officer who received the specific information and details of the specific information, and the fact that the said information was penned down & communicated to Superior Officer. At the time of production of the accused person before, CJM, the slip containing information was not produced. He denied that by this they have violated the provisions of Section 42 of NDPS Act. PW 3 also admitted that while intercepting the truck at Panbari BSF Camp of 21


area, we have not called the people of that locality. At the time seizure at Pattharquary area, they have not called local people of the area to be a witness the seizure. Since 02.06.2009 till 04.06.2009, the independent witness of this case were with them. PW 3 denied that by not calling witnesses from local area they have violated Sec. 100 Cr.P.C. He admitted that Sample were drawn randomly. PW 3 admitted that in complaint he has have not mentioned the fact as to under whose custody the samples were kept on 04.06.09 & 5.6.09 before sending to FSL. He admitted that entire seized articles were not produced in the court during evidence or before CJM soon after its seizure. PW 3 denied that they have not prepared inventory as required U/S 52A of NDPS Act. He also denied that no Ganja was seized from the seized truck and accused persons has no knowledge of recovery of Ganja. He also denied that after obtaining signature/T.I. Marks on blank paper, they have prepared the statement of accused and the alleged statement of accused were not the conscious statement of accused. PW 3 admitted that though from Panbari BSF Camp, they have brought the truck by another driver, but his name not mentioned as witness in the complaint because he was a hired driver. 14. PW 4 Gautam Das and PW 6- Sri Subir Das in their examination-in-chief has supported the evidence of PW 2, 3 and 5 for going upto Azara and waiting for the truck. They also deposed that at about 7.30 p.m. they were called back to office by Dy. Director for some other work. PW 4 and 6 also deposed that on 03.06.2009 at about 12.30 in the afternoon, he was asked to be a team member of search team led by Sri Subir Das to intercept/apprehend Mr. Baharuddin from Flat No. 402, IVY Complex, Gali No. 9 behind Down Town Hospital. They searched the house but could not find trace of Baharuddin. 14.1 PW 4 also deposed that the DRI Officers team which intercepted the truck No. W.B. 25-B-4251 from 2 persons namely Deepak Kr. Singh and Swapan Kr. Roy, were interrogated in his preference and during such interrogation both of them Swapan Kr. Roy & Deepak Kr. Singh confessed their guilt. They also revealed Baharuddin's name as of 21


sender of Ganja in their truck and name one Moran Bala of Bordhowan (W.B) receives of the Ganja. PW 4 has proved the statement of accused Swapan Kr. Roy, as Ext-11 and statement of accused Deepak Kr. Singh as Ext-12.. Both the accused person gave their statement vide Ext-11 and 12 respectively in his presence. The other formalities were done by seizure officer D.J. Sharma. 14.2 In his cross-examination, PW 4 admitted that Ext-11 and 12 were recorded in interrogating form Accused persons have answered our questions. In Ext-11 and 12 through T.I. Marks of accused were present, there is no mention as to who has taken those thumb impression marks. PW 4 denied that the defence suggestion that they have prepared the Ext-11 and 12 statements by taking T.I. Marks of accused on blank papers. He also denied the fact that before going to Azara, they have not conducted any search at Beltola parking place. He was not aware about the presence of independent witnesses at Azara. 15. PW 6 in his cross-examination admitted he was not present at the time of detection, recovery & seizure of Ganja or during interrogation of accused by DRI Officers. How ever he affirmed that he has seen the inventory subsequently. He has the knowledge as to how & where from seizure was made. He also admitted that the seized articles were not produced before CJM but the samples were only produce before CJM for perusal. 16. Now let me discuss the evidence to decide as to whether the prosecution has been able to prove the ingredients of the offence of charges with.17. In respect of nature of the seized articles, the PW 1, Deputy Director, Drugs and Narcotics, DFS, Assam, Kahilipara has categorically stated that on 4.6.2009 he has received three exhibits enclosed with seal envelop cover and upon examination of the said samples marked by him as vide Exhibits DN- 260/2009(a) to DN-260/2009 (c) gave positive tests of 21


for cannabis (ganja). The report duly proved was Exbt. 1 and same was forwarded by the then Director, FSL, Kahilipara, Guwahati to the prosecution vide Exbt. 2. In 313 Cr. P.C. examination accused persons simply denied their knowledge on the above report. During cross- examination, findings on the report of the said witness were not challenge except suggestion of non following UN protocol. So it can safely be held that the sample sent to the FSL were ganja/cannabis. 18. So far quantity of the recovered Ganja is concerned, from the inventory, seizure list and evidence of PW 2 to 5, it is clear that total 211 packets wrapped in polythene packets were recovered and the total weight of seized ganja was 3549 KG (3.549 MT). Except raising questions on procedural aspect and involvement of accused in possessing the above quantity of ganja, the evidence of prosecution witness is found reliable in absence of any contrary material on record. 19. Now the question is whether this huge quantity of ganja was recovered from the Truck No. WB-25B-4251. In this respect PW 2, PW 3 and PW 5 in their evidence categorically stated that acting on a specific information, the said witnesses along with other officers ( PW 4 and PW 6) laid naka checking at Ajara with two local witnesses and upon detecting the truck at midnight hours, they have chased the truck upto Panbari near the BSF camp in the District of Dhubri, Assam and after intercepting the said Truck brought the same to Guwahati and thoroughly search was conducted. The evidence of PW 2, 3 and 5 so far intercepting the truck at Panbari was also admitted by the accused Swapan Kumar Roy in his 313 Cr. P.C. This part of evidence of witnesses has remained unshaken during cross-examination. Seizure list and the inventory also show that the documents of truck, driving licence of the accused Swapan Kr Roy were seized with transit challans for 23 MT of coal load. The argument that seized articles were not produced before court cannot be ground for doubting the recovery of such huge quantity of Ganja as witnesses and relevant seized documents are found trustworthy. Hence, from the available evidence it can safely be held that 3549 KG of ganja of 21


wrapped in 211 plastic packets were recovered form the truck No. WB 25B-4251. 20. So far point (ii) i.e. conscious possession of accused persons in carrying the 3.549 MT of ganja in Truck No. WB-25B-4251, on going though the evidence of PW 2, 3 and 5 it appears that upon getting the secret information they along with other officers laid naka checking at Azara with two local witnesses and upon locating the truck, they chased the truck upto Panbari near the camp of Border Security Force (BSF) in the District of Dhubri, Assam and on intercepting the said Truck they found accused Swapan Kumar Roy as Driver and accused Dipak Kumar Singh as cleaner. The above fact of intercepting the Truck at Panbari was admitted by the accused Swapan Kumar Roy in the answer to the question No. 4 in his 313 Cr.P.C. The fact that accused Swapan Kumar Roy was the driver of the said truck and Diapk Singh was the cleaner as deposed by the PW 2, 3 and 5 was proved by the fact seizure of Driving licence of the accused Swapan Kr Roy in the said truck and also on admission of the accused Swapan Kumar Roy in court. Accused Dipak Kumar Singh though in his 313 Cr.P.C. stated that he was picked up from a Dhaba at Beltola, but co-accused in his 313 Cr.P.C examination has stated that at the time of intercepting the truck, Dipak Singh was in his truck as cleaner. Hence the evidence of PW 2 to 5 that the accused persons facing the trial are the driver and cleaner of the truck is found reliable and trustworthy. 21. Now the question is of conscious possession of the accused persons in carrying the such a huge quantity of ganja in the truck driven by the accused Swapan Kumar Roy and helped by Dipak Kumar Singh as cleaner. As discussed earlier, the prosecution witnesses in their evidence have also clearly stated that they brought the truck to Patharquerry area, Guwahati, whereas coal was unloaded in presence of the accused and the witnesses. Said fact remains unshaken during cross-examination by defence. The accused has also admitted the above fact of brining the truck at Patharquary area. The normal practice in this part of the country is that of 21


goods were loaded in trucks in presence of the driver and cleaners and as such it is highly improbable that such a huge quantity i.e. 3.549 MT of load of ganja can be loaded in a truck without knowledge of the driver and cleaner. If we look at the interrogatory statement of accused persons (Exbt. 11 and 12) as recorded u/s 67 of NDPS Act, extract of which was brought on evidence by the PWs, the fact of knowledge of both the accused persons become apparent. It is in these statement that after having some load of coal, the went to Amingaon area got the packets of Ganja loaded in the truck and come back to Beltola and loaded the rest of consignment of coal. From the evidence of PW 2, 3 and 5 it also appears that the above truck was first located at Azara and the driver has violated their signal and flee away shows the guilty mind of the accused persons. Had they been no knowledge of loading of Ganja in their truck, the driver of the truck certainly obeyed the stop signal at Azara. 21.1 Ld. Advocate of accused has vehemently submitted that Exbt. 11 and 12 cannot be treated as voluntary statement u/s 67 NDPS Act as the same was in interrogatory form. However, I am of the considered opinion that those can be treated as voluntary statement u/s 67 NDPS act and are admissible in evidence. During 313 Cr. P.C. though the accused persons have denied to make any such statement, but the evidence of PW 4 and 5 regarding making of the statement u/s 67 of NDPS Act, by the accused persons is found reliable though the same was in interrogatory form. 21.2 It may be noted herewith that while production of the accused persons Ld. CJM, Kamrup they have not retracted or complained of taking any statements of them forcibly or signatures on blank paper as suggested to witnesses during trial. Mere denial of knowledge at 313 Cr. P.C. is not sufficient which was otherwise proved that accused Swapan Kr. Roy was driver of the truck and Dipak Kr. Singh was the cleaner of the truck and at the time of interception, they were found in control of the truck wherefrom Contraband ganja was recovered. Considering all aspects, I hold that accused persons namely Dipak Kr. Singh and Swapan of 21


Kr. Roy were in conscious possession of the Contraband ganja in their truck.22. Before going further, let me decided the points of law raised by learned advocate during arguments. So for non drawing of samples from all the 211 packets, it is in the evidence of PW 2 that after recovery of the ganja from 211 packets he has randomly drawn samples weighing about 25 grams each and put the same in a envelop and was sealed the same with DRI seal and sent to FSL, Kahilipara. PW 2 also deposed that upon sample packets signatures of the accused, independent witnesses and seizing officers were obtained. PW 3 to 5 has corroborated the above evidence. In his evidence PW 5 deposed that after seizure, 3 numbers of representative sample in Duplicate i.e. 6 nos. of samples were drawn from the recovered Ganja and sealed in presence of accused persons and the witnesses. Merely not taking samples form all the packets can not make the process of sample defective. When such a huge quantity of ganja was recovered, it may not be practically possible to take samples from each and every packet and in this case the witnesses deposed that samples were drawn randomly. Even after arrest of the accused persons, no request was made that the other packets do not contain ganja and re-sampling should be done. Considering all I am of the opinion that no prejudice was caused to accused on non taking sample from each and every packet recovered from the truck. 23. So far the argument of suspicious compliance on section 42 of the NDPS Act, i.e regarding reducing of the secret information written into writing vide Exbt. 3, PW2 in his evidence stated that on 02.06.2008 their Deputy Director Sri S.K. Mahanta on getting the information that the Truck No. WB-25 B/4251 was carrying 200 packets of Ganja through NH-37 proceeding towards West Bengal. He has written the said information in a paper vide Exbt-3. Signature of Sri S.K. Mahanta vide Exbt. 3 who was now posted at Mumbai. The above fact was duly supported by PW 3 to 5. Ld. Advocate for the accused has argued that the said Exbt. 3 sheet was prepared subsequently and as such admittedly same was not produced of 21


before the CJM, Kamrup at the time of production of the accused. Ld. Advocate for the prosecution has strongly objected on the argument and submitted direction of the information before the CJM is not necessary. It has been duly proved during trial which has shown u/s 42 of NDPS Act, was duly complied with. I found force on the submission of Ld. Special PP on this count. Mere non production of the information sheet before the CJM, Kamrup on the date of the production of the accused and that the same was produced in court for first time will not lead to adverse presumption against prosecution. 23.1 The other limb of argument to substantiate that Exbt. 3 was prepared subsequently, Ld. Advocate for the accused by referring Annexure A to Exbt. 9 has submitted that it in the evidence that information was received at about 5.10 pm of 2.06.2009 as written Exbt. 3 but the Annexure-A shows that upon acting on a specific intelligence DRI officers has started search on 02.06.2009 from 4:00 pm onward in the parking place at Beltola area. By emphasizing on the variation of time in two documents proved by prosecution, it was argued that information vide Exbt. 3 was an after thought document. Prosecution has argued that on getting information the officers have to act in hurry, there might be some mistake in noting the time while typing as appeared in this case, but it is clear that information was received and same was reduced on writing and thus mandate of section 42 was duly complied with. I found force on the submission of the argument of prosecution. On going through the Exbt. 3 it was mentioned that information was received at 5:10 pm, but other part of the information regarding Truck No, quantity of ganja and the nature of the load was same are similar and hence Exbt. 3 is acceptable in proof of due compliance of section 42 of NDPS Act so far reducing of the information in writing. 23.2 In this line, the further argument that non mentioning of the compliance of section 42 NDPS Act has cuased prejudice and created doubt on compliance is also not found acceptable simply because in their evidence the PW 2 to 6 has categorically deposed that they have moved of 21


towards Azara for surveillance on the truck carrying ganja on specific information. A complaint need not be an encyclopaedia of the all the facts constituting offence. 24. The further argument regarding non compliance of section 100 Cr. P.C. during search and seizure, it is in the evidence that two independent witnesses were all along present with the DRI official team. Non-producing them for evidence cannot vitiate a trial. Section 100 (5) of Cr. P.C provides that appearance of witness for evidence is not necessary to support the fact of seizure. From the facts narrated here-in-before, I found no illegality or irregularity in search and seizure of the contraband ganja from the truck at Guwahati by bringing the same from Panbari to Guwahati. The seizure list and the inventory showing recovery of coal, 211 packets of ganja and the documents relating to transportation of coal and truck were found in compliance with the provisions of NDPS Act. The accused persons has failed to show any animosity with the DRI officials in concocting a false case against them under NDPS Act that to with such a huge quantity of recovery of Ganja. 25. The other limb of argument is non production of seized goods before the CJM Court. I am not impressed by the argument that mere production of seizure list does not have any impact unless and until seized goods are not produced. In this case it must be noted that 3.5 MT of ganja and 23 MT of coal was seized and it was practically difficult to bring all the material to court for perusal for space constrain. The trend of cross-examination and 313 Cr.P.C answers shows that driving the truck with load of coal, intercepting the truck by DRI at Panbari, bring the same to Guwahati were admitted by the accused Swapan Kumar Roy and such admission was in the line of evidence lead by PW 2 to PW 5. 26. The further argument of non-examination of the messenger of sample from DRI office to FSL no way affect the credibility of the evidence of PW 1, the Dy. Director FSL who in his evidence has categorically stated that he received the samples in sealed condition. of 21


27. So far non compliance of section 50 NDPS Act is concerned it is in the evidence of PW 2 to 6 that seized Ganja was recovered from the truck as kept concealed under the load of coal. Evidence of PW 2 regarding body search of the accused Swapan Kr. Roy and Dipak Singh in-front of Deputy Director shows that they have recovered some documents relating to the vehicle and coal only. There is no evidence that any contraband was recovered upon body search of the accused persons. As such there is no question of compliance of the mandatory provisions of section 50 of the NDPS Act. I am of the considered opinion that as ganja was recovered form the truck, compliance of section 50 is not required. 28. The further argument of non-compliance of Section 52 A (2) is not tenable in view of the evidence that inventory was prepared vide Exbt. 5. I would like to note that while discussing the above issues relating to alleged legal lacunas, I have considered the case laws cited by learned counsel for defence and arrived at finding keeping the legal provisions in mind. The relevant ratios were discussed in detail for the sake of brevity of judgment. 29. From the above discussion, I am of the considered opinion that the legal points raised by defence has no force in view of the evidence led by prosecution towards proving the guilt of both the accused persons for consciously possessing contraband Ganja in violation of the provisions of NDPS Act. The seized quantity of 3549 KG ganja leads no scope for second thought so far the intention of the accused persons that they have possessed the same for transportation/trafficking as a part of criminal conspiracy. 30. In the result, I hold that the prosecution side has been successfully proved the ingredients of offences punishable u/s 20(b)(ii)(c) of NDPS Act, 1985 as amended up-to-date for possessing/ transporting 3549 KG of Ganja in the Truck No. WB-25B-4251 beyond all reasonable doubt. 31. Accordingly, both the accused persons namely Swapan Kumar Roy and Dipak Kumar Singh are held guilty for the offence of 21


punishable u/s 20(b)(ii)(c) of NDPS ACT and are convicted accordingly for the aforesaid offence. It may be noted here that though accused persons were also charged with section 8 (c) of NDPS Act, the said section is not a penal provision. In view of clear evidence of conscious possession of Ganja by the accused persons namely Swapan Kumar Roy and Dipak Kumar Singh, no separate conviction is required to be passed for the offence u/s 29 NDPS Act.32. In view of provisions of section 33 of NDPS Act, accused persons are not entitled for consideration of the benefits under section 3 and 4 of the Probation of the Offenders Act/360 Cr.P.C. 33. Heard the convicts Swapan Kumar Roy and Dipak Kumar Singh on the point of sentence. Their statements are recorded in separate sheets. Accused persons while pleading their innocence, simultaneously pleaded for leniency in sentence. Heard learned advocate for both the sides on sentence to be imposed on the convicts. While learned Spl. PP prayed for maximum sentence under law, learned Advocate for the accused prayed for minimum sentence. 34. I have considered the submission of both the sides. There is no record of previous conviction of the accused persons in similar crime. Considering the quantity of the seized ganja and by taking into account the family background of the accused persons, I sentence the convicts Swapan Kumar Roy and Dipak Kumar Singh to undergo R.I. for 12 (twelve) years and also to pay fine of Rs. 1,00,000/- (Rupees one lakh) each i/d to undergo further imprisonment of 2 (two) years for the offence punishable u/s 20(b)(ii)(c) of NDPS ACT. 35. Convicts Swapan Kumar Roy and Dipak Kumar Singh are entitled for the benefit u/s 428 Cr.P.C for the period already undergone. 36. Let a copy of the judgment be given to the convict immediately free of cost as per the provisions of Section 363(1) Cr.P.C. of 21


37. Convict Swapan Kumar Roy and Dipak Kumar Singh are informed about their right of appeal before Hon'ble The Gauhati High Court against the judgment and order of conviction and sentence. 38. Convict Swapan Kumar Roy and Dipak Kumar Singh are remanded to prison for serving out remaining part of sentence.39. Seized articles i.e. GANJA have already been destroyed as per order of this court.40. Prosecution shall publish notice for confiscation of the seized truck and other articles of value, if any as per the provisions of NDPS Act.. 41. Send a copy of the judgment to District Magistrate, Kamrup (Metro) as per the provisions of section 365 Cr.P.C.42. The split-up Case against Harekrishna Bala @ Moran who is in judicial custody at Berhampur Correctional Home shall proceed from the stage of 313 Cr.P.C. on his production. 43. Judgement is pronounced in open court. Case so far the above named two accused persons is concerned, disposed of on contest.Given under my hand and seal of this Court on this the 24 th day of March, 2014 at Guwahati. Additional Sessions Judge No. 2 Kamrup (M), Guwahati.

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