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Judgment
All these criminal appeals having arisen out of the same judgment passed by the learned Special Judge, NDPS, Golaghat in Special NDPS Case
No. 3/2016, are taken up together for hearing and disposal by this common judgment. The appellants stood convicted by the learned Spl. Judge under
Section 20(b) (ii) (C) of the NDPS Act and sentenced to rigorous imprisonment for 10 years with fine of Rs. 10,000/- each, in default further simple
imprisonment for one year.
As per prosecution case, Sri Chiranjit Kumar Bora, In-Charge of Numaligarh Police Outpost received an information on 06-06-2016, that one Tata
Ace vehicle bearing registration No. AS- 23-BC/0957, loaded with ganja was coming from Rongbong side. He made a GD Entry on the basis of the
said information, conveyed the same to his superior officer and proceeded to the National Highway to pursue the information. On reaching the place
called Amlakhital, he noticed the vehicle as mentioned in the secret information and intercepted the vehicle along with the appellants who were
travelling in the vehicle. Upon search of the vehicle six bags containing suspected ganja were found. He interrogated the accused persons and in the
meantime, the Officer-In-Charge of Golaghat Police Station also arrived there. Sub-Inspector, Chiranjit Kumar Bora weighed the suspected ganja by
bringing a scale from the shop of Dimbeswar Bora and found that all the six bags contained 26.53 kg of ganja. He also seized the said ganja and took
six samples in triplicate, each sample containing 100 gm of suspected ganja and brought the same to Numaligarh outpost. On the next day, i.e., 07-06-
2016 he lodged a formal FIR before the O/C, Golaghat and deposited the seized ganja along with the samples. The samples were sent to forensic
laboratory by PW-4 for chemical examination and the report of the chemical examination gave positive test for ganja. Upon receipt of the FSL report,
charge-sheet was laid by the PW-4, Bijoy Kumar Dutta against the appellants, who eventually stood trial.
In course of trial, learned Spl. Judge framed charges against all the appellants u/s 20(b) (ii) (C) of the NDPS Act, to which they pleaded not guilty.
Six witnesses were examined by the prosecution in order to bring home the charges against the appellants and on appreciation of evidence, learned
Special Judge convicted the appellants u/s 20(b) (ii) (C) of the NDPS Act and awarded sentence as has been indicated above.
Aggrieved, the appellants preferred the instant appeals.
Learned Amicus Curiae, M. Dutta, Mr. A.K. Gupta and Ms. B. Sarma for the appellants as well as the learned Addl. P.P. Mr. MP Goswami were
heard.
Assailing the conviction and sentence of the appellants, learned Amicus Curiae submitted, that the entire investigation was carried out by the
informant himself which vitiated the trial. It was also submitted by the learned Amicus Curiae, that there was violation of Section 42 of the NDPS Act,
inasmuch as, secret information reduced to writing was not forwarded to the superior officer as per mandate of Sub-section (2) of Section 42 of the
NDPS Act and the conscious possession of the contraband by the appellants was not proved. Further contention of the learned Amicus Curiae was
that the search and seizure were made in a perfunctory manner and no sample was taken at the place of occurrence which created serious on the
veracity of the prosecution case.
I have considered the submissions made by the learned Amicus Curiae and also scrutinized the evidence brought on record.
The Sub-Inspector of Police Chiranjit Kumar Bora was examined as PW-5. He deposed that having received a secret information, that suspected
ganja was being carried in a vehicle, he made the GD Entry and he proceeded to the place of occurrence. He also stated to have seized the vehicle
and the contraband from the possession of the appellants. He also took samples and after completing the search and seizure lodged the FIR on the
next day, i.e. 07-06-2016.
PW-4, who was the investigating officer stated, that he only collected the FSL report and submitted the charge-sheet and all other activities
including search, seizure and taking of samples etc were done by PW-5, who lodged the FIR. Referring to the above evidence of PW-4 & PW-5.
Learned Amicus Curiae contended placing reliance on a decision of the Apex Court in Mohanlal Vs. state of Punjab, (2018) 17 SCC 627, that PW-4,
who was designated as investigating officer, only submitted charge-sheet on the basis of the investigation carried out by PW-5, the informant, who
seized the contraband, collected the samples, examined the witnesses etc., and as such, the trial was vitiated, inasmuch as, the entire investigation was
carried out by the police officer, who himself lodged the FIR. The Apex Court in Mohanlal Vs. State of Punjab (supra) observed that investigation by
the informant himself vitiates the prosecution case for infraction of constitutional guarantee of fair trial and held in para 30 as under :
“In view of the conflicting opinions expressed by different two-Judge Benches of this Court, the importance of a fair investigation from the point of
view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this
regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of
powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be
avoided. It is therefore, held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the
investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined
conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.â€
However in a subsequent decision in Crl. A. 2450-2451 of 2010, Varinder Kumar Vs. State of Himachal Pradesh, the Apex Court held that the
decision rendered in Mohanlal. Vs. State of Punjab shall not have retrospective effect and all the pending criminal prosecution and trials and appeals
prior to the law laid down by Mohanlal vs. State of Punjab (supra) shall continue to be governed by the individual facts of the case. The Apex Court in
Varinder Kumar’ s case held as under :-
“The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A
proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law
laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other
considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall
continue to be governed by the individual facts of the case.â€
What is therefore abundantly clear, that the law laid down in Mohanlal Vs. State of Punjab (supra) shall not be applicable in the proceeding which
was prior to the decision of Mohanlal Vs State of Punjab, rather those cases which are prior to Mohanlal Vs. State of Punjab shall be governed by the
individual facts of the case, meaning thereby whether a trial shall vitiate or not because of investigation having been carried out by the informant
himself shall depend upon the facts and circumstances of the individual case.
From the evidence of PW-5 as well as other prosecution witness, it is apparent that seizure of ganja in the instant case was made in a public place
during transit, and as such, the provision of Section 43 will be attracted and not Section 42 of the NDPS Act. Therefore violation of Section 42 NDPS
Act does not arise in the instant case. The Apex Court in Mohanlal- Vs. State of Rajasthan reported in (2015) 6 SCC 222 held that when search and
seizure of contraband substance is made in a public place by the officer empowered u/s 42 NDPS Act, Section 43 of the NDPS Act is attracted and
therefore, compliance of Section 42 is not required. Approving the view taken by the High Court, in that case, which are covered by Section 43,
compliance of section 42 NDPS Act is not required, the Apex Court held in para 32 of the judgment as under :
“32. In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has
further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a
distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to
comply with sub Sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of
public road accessible to public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and
Section 43 comes into play, the question of non-compliance of Section 42(2) does not arise. The aforesaid view gets support from the decisions in
Directorate of Revenue and Anr. v. Mohammed Nisar Holia[35] and State, NCT of Delhi v. Malvinder Singh[36].â€
Evidently the search and seizure in the instant case was made in a public place on the national highway while the contraband was transported, and
as such, there was no requirement of the compliance of Section 42 of the NDPS Act. Therefore, I find no force in the second submission of the
learned Amicus Curiae regarding violation of the provision of Section 42 of the NDPS Act.
Coming to the third submission of the learned Amicus Curiae as to the defect in the search and seizure, PW-5 stated that on receiving the secret
information, he proceeded to the place of occurrence and having found the vehicle as described in the secret information, conducted search and found
six bags of suspected ganja, which was seized by him vide seizure list (Ext. 2). According to him, all the three accused/appellants were travelling in
the said vehicle. He also stated, that the ganja was covered by tarpaulin and the appellant Tuton Das was driving the vehicle. He also stated that he
weighed the contraband at Amlakhital itself by a balance brought from the shop of PW-1, Dimbeswar Bora. According to him, there was 26.53 Kg. of
ganja in three bags. PW1, Dimbeswar Bora stated that at about 7.30 to 8 pm in the evening while he was in his shop at Amlakhital tiniali, PW-5, the
Inâ€"Charge of Numaligarh Police Outpost brought three persons from Rongbong side. He further stated that there was “bhang†in the vehicle
and PW-5 took his electronic scale for weighing the same. He further stated that quantity of ganja was 26.53 kg. During cross-examination, he stated
that he was not aware as to where the appellants along with the contraband ganja were brought from by the police. According to him, police weighed
the contraband substance near his shop and at that time Jogen Bora and other villagers were also present.
PW-2, Rubul Bora stated, that hearing commotion in front of his house, he came out and found a Tata Ace vehicle and there was ganja in the said
vehicle. He also stated to have seen the appellants in the police vehicle and the ganja in the Tata Ace vehicle. He stated that police brought the scale
from the shop of Dimbeswar Bora and weighed the ganja. According to him, police took his signature in Ext. 2, seizure list. During cross-examination
of PW-2, it was further confirmed that coming come out of his house, he had seen three accused persons in the police vehicle and there were four
packets of suspected ganja.
PW-3, Jogen Bora stated that he was informed by a member of the VDP over phone that a Magic vehicle was carrying ganja from the side of
Rongbong and immediately he informed the police and as per instruction of the police, he also accompanied the police party and confronted with the
vehicle. As per description of the vehicle given in the information police stopped the vehicle at Amlakhitol and found that there were three bags
containing suspected ganja. He also stated that suspected ganja was weighed by electronic scale of Dimbeswar Bora. According to PW-3 26.53 kg
ganja was seized by police vide seizure list (Ext.2) PW-3 further stated that the ganja was covered by tarpaulin, However, during cross-examination of
this witness, it was elicited that police took samples of the seized ganja at the police station. PW-4, the Investigating officer stated that neither he
visited the place of occurrence, nor seized any contraband. He also stated that he did not examine any witness in the case. Although PW-5, the seizing
officer stated that the samples were taken at the place of occurrence, none of the witnesses stated that police took the sample at the place, where the
ganja was seized. Rather PW-3 categorically stated, that the samples were taken at the police station. From the evidence of PW-2 & PW-3, it is
apparent that the vehicle and the accused persons were caught by the police in front of the shop of PW-1, where the contraband ganja was allegedly
seized. The PW-1 & PW-2 stated that the appellants along with the vehicle were brought by police from Rongbong side. Thus, from the evidence of
PW-2 & PW-3, it is clear that although, PW- 5 along with PW-3 proceeded to locate the vehicle as per the secret information and found the vehicle
on the national highway, the search and seizure was not made at the place, where the vehicle was intercepted. Rather, according, to PW-1 & PW-2,
the accused persons along with the ganja was brought near the shop of PW-1, where the contraband article was weighed and seized. PW-2
categorically stated, that the samples were taken at the police station and not at the place of seizure.
What is therefore, abundantly clear that neither the seizure was made at the place, where the accused persons along with the vehicle was
intercepted by PW-5, nor the samples were collected at the place where seizure was made. The oral testimony of the PW-2, that when he reached
the place, where the ganja was weighed and seized, he had seen the appellants in the police vehicle and not in the vehicle, in which ganja was carried
and this evidence was further confirmed in cross-examination. Referring to the above evidence of he PW-2 and that the ganja was covered with
tarpaulin in the trailer of the vehicle, learned Amicus Curiae contended that the prosecution evidence was not conclusive and convincing to prove
beyond doubt that the ganja was seized from the exclusive possession of all the three appellants or at least it was doubtful as to from whose
possession the ganja was seized. Since the evidence of the PW-2 has not been disowned by the prosecution by declaring him hostile, submission made
by the learned counsel cannot be brushed aside. Evidently the samples were sent to forensic laboratory on 09-06-2016, inasmuch as, the PW-6, the
Scientific Officer deposed that he had received the samples for forensic examination on 09-06-2016. He also stated that the remnants of the samples
were sent back to the sending authority. Apparently six samples were taken in triplicate, each samples containing 100 gm, but neither the remnants of
the samples received back from the FSL, nor the 2nd & 3rd samples, which were not sent for forensic examination were produced before the court
for its inspection. Surprisingly, there was also no evidence on record to show that the samples were taken in presence of the accused or independent
witness. Evidently the PW-5 seized the contraband substance on 06-06-2016 and the same were sent to forensic laboratory on 09-06-2016. It was
also revealed from the testimony of PW-5, that he deposited the seized ganja at the police station on 07-07-2016, but no evidence was adduced to
show that the seized ganja was kept at the police station. Even the malkhana register was not proved. Therefore, all these evidence discussed
hereinbefore, that the PW-5, who conducted the search and seizure, did not follow the procedure for the search and seizure, which rendered the entire
exercise of search, seizure and collecting of sample doubtful.
What is evident from the oral testimony of PW-1, PW-2, PW-3, PW-4 and PW-5, is that the investigating officer has not done anything, He even
did not visit the place of occurrence, nor examined any witness and the entire search, seizure, collection of samples and examination of witness were
done by PW-5, who allegedly received the secret information. Therefore, except submitting the charge-sheet after collecting the FSL report, the PW-
4, investigating officer had not done anything and in fact, the entire investigation was carried out by the PW-5, who happens to be the informant
himself. In the facts and circumstances of the present case, as indicated above, investigation by the informant himself certainly affected the credibility
of the entire process of search, seizure, collection of samples etc and thereby violated the right of fair trial and fair investigation.
It is the settled law that in case of an offence under the NDPS Act which provides stringent punishment, the authorities are expected to follow the
statutory procedure strictly which is found to be absent in the present case. Rather the way the investigation carried out and search, seizure and
collection of samples were made by the informant himself makes the entire prosecution case suspect. In view of all these loopholes and aberrations in
conducting the search and seizure coupled with the fact that the investigation was also carried out by the informant himself vitiates the prosecution and
as such, in my considered view the conviction and sentence of the appellants on the basis of such investigation cannot be sustained or at least the
appellants would be entitled to benefit of doubt. Being of the above view, the conviction and sentence of the appellants are hereby set aside and all the
three appeals stand allowed.
The appellants be set at liberty, if nor required in any other case.
I appreciate the assistance rendered by the learned Amicus Curiae Mr. M. Dutta, Ms. B. Sarma & Mr. A. K. Gupta. They shall be entitled to
professional fees of Rs.7,500/- each to be paid by the Legal Service Authority on production of a copy of this judgment.
Send back the record.