Dilip Sutradhar vs State Of Tripura

Heard Mr. P. K. Biswas, learned senior counsel assisted by Mr. D. Biswas, learned counsel appearing for the appellant and Mr. B. Choudhury, learned P.P. appearing for the state.

This is an appeal under Section 374(2) of the Cr.P.C. by the convict, hereinafter referred to as the appellant, from the judgment and order of conviction and sentence dated 25.07.2017 delivered in Special 05 (NDPS) of 2015 by the Special Judge, South Tripura, Belonia. By the said judgment, the appellant has been convicted under Sections 147 and 353 of the IPC and sentenced to pay a fine of Rs.5,000/- with default imprisonment for 6(six) months for committing the offence punishable under Section 147 of the IPC and also to suffer simple imprisonment of 1(one) year and to pay a fine of Rs.5,000/- with default imprisonment for 3(three) months for committing the offence punishable under Section 353 of the IPC.

The prosecution was launched against the appellant on the basis of an information forwarded by Addl. DM & Collector, Belonia which was initially entered into Belonia P.S. GDE No.108 dated 03.12.2013. Thereafter the said information was transmitted to P. R. Bari Police Station where that was treated as the First Information and P.R. Bari P.S. Case No.103 of 2013 was registered under Section 148/149/353/342 of the IPC read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In this regard, this court has persuaded to take note that Belonia Police Station and the P.R. Bari Police Station had registered the information in disregard to provisions of Section 153 of the Cr. P.C. inasmuch as without any forwarding note, a letter dated 03.12.2013 addressed to the Addl. District Magistrate & Collector, South Tripura, Belonia by one Dipankar Das, Sub-Inspector of Excise has been treated as the First Information Report.

Section 154 of the Cr.P.C. provides categorically that every information relating to commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

Purportedly, though the police has noted the information as received from the Addl. District Magistrate & Collector, South Tripura, Belonia, but the Addl. District Magistrate & Collector, South Tripura, Belonia did not sign the said information. This is a gross deviation and to all fairness this is not a First Information Report (FIR). The police ought to have asked for signing of the forwarding report by the Addl. District & Magistrate & Collector, South Tripura, Belonia.

Be that as it may, on the basis of that, a specific case was registered and investigation was taken up. On completion of the investigation and chargesheet was filed to the Special Judge, South Tripura, Belonia being Special 05 (NDPS) of 2015. The charge was framed under Section 148/149/353/342 of the IPC and under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) to which the accused person including the appellant pleaded not guilty and on the ground of innocence, they claimed to be tried in accordant with law.

To substantiate the charge the prosecution has adduced as many as 13(thirteen) witnesses and introduced 11 (eleven) documentary evidence including the written complaint [Exbts.8 & 2] and the seizure list [Exbts.3, 4 & 5], the report of the SFSL etc. After recording the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C. when he has stated that the so called materials incriminating him are concocted or falsified. Thus, he repeated his plea of innocence. From the defence, there was no evidence.

The crux of the said written information was that when on 02.12.2013 about 9.30 p.m. in the night, one Dipankar Das, Sub-Inspector of Excise, Belonia with some Police Officers including one Pramod Rn. Das, Assistant Sub- Inspector of Belonia Police Station on secret information raided Saha Para a violent mob attacked them and they could not contain them even after the additional attachment was drafted to enhance their enforcement. But from the place they had seized one Maruti Suzuki van bearing No.TR-01-TEC-0417 and one Yamaha motor cycle bearing No.TR-03-B-4605. They had also, according to them, seized some narcotic substance, such as, three cases of Phensedyl Cough Lintus, some raw materials, approximately 20kg sweet powder, approximately 4000 empty bottles and those were kept in the Belonia Police Station before the communication was made to the Addl. District Magistrate & Collector. They were attacked by the mob with the sharp weapons, lathis etc.

Mr. P. K. Biswas, learned senior counsel has submitted that the entire operation as led by Dipankar Das, PW-1 was illegal inasmuch as for such seizure from sunset to sunrise, they required permission from the designated officer. Even on having the secret information when they launched this illegal search and seizure they did not had any permission thereof. As such, it cannot be held that they were on their duty or they were entitled to any protection under Section 353 of the IPC. Moreover, according to Mr. Biswas, learned senior counsel, Section 147 for which no separate charge was made has been invoked for convicting the appellant. Though there is no proof that the appellant was the part of the so called unlawful assembly or he had instigated or he had any overt act in rioting which forms basis of Section 147 of the IPC. Unless, any overt act is proved, the charge of rioting cannot be held to have been proved. But there is even no grain of evidence against the appellant for participation or for being a part of riot. So far the charge under Section 353 of the IPC is concerned, the appellant, as it appears from a bare reading of the evidence, did not ever assault or apply criminal force to deter public servant from discharging his duty as public servant or in consequence of anything done or attempted to be done by such person in the lawful discharge of the duty. In this regard, Mr. Biswas, learned senior counsel has submitted that when the entire operation is unlawful and there is no sanction of law. Thus, that cannot be treated as lawful discharge of his duty.

Mr. B. Choudhury, learned P.P. has with his all seriousness and persuasiveness has taken this court to the evidence of PW-1, PW-4 and PW-3 in particular.

PW-1, Dipankar Das, a Sub-Inspector of Excise has stated that having information of illegal manufacturing of different intoxicant they raided the house of Dilip Sutradhar on 02.12.2013 at about 10.30 p.m. Dilip Sutradhar according to him was found in his house and he identified himself as Dilip Sutradhar. They found some anti-socials were packaging huge quantity of phensedyle cough lintus in cartoons. When he gave the direction to ASI Promode Ranjan Das to arrest the miscreants then suddenly about 60 unknown people and miscreants gharaod them with dao, axe, stick etc. and abducted one TSR Rifleman namely, Laxman Debbarma. They shifted all the cartoons from that place but the miscreants failed to take away all entire phensedyle cartons.

PW-2, Kamal Mohan Tripura has stated that he was a part of that raid and they entered in the house premises of one 'Sutradhar' and he heard that one constable had been kidnapped and some miscreants attacked the Excise Inspector who was discharging his duties. He did not indicate any overt act of Dilip Sutradhar.

PW-3, Biprol Kanti Datta has stated that he heard from the miscreants that under the leadership of the appellant some miscreants attacked them but he did not disclose who exactly told him that.

The most important witness is Sri Pramod Ranjan Das, PW-4 and he has stated that after about 7/8 minutes Dilip Sutradhar attacked them with the help of 100/150 people with dao, lathi etc. That was the only statement available in his testimony against the appellant, but in the cross-examination he has stated that before their entering into the house of Dilip Sutradhar, he fled away from his house. But he did not explain that how thereafter, Dilip Sutradhar could attack them.

PW-5, Babul Majumder is a hearsay witness. PW-6, Shri Dilip Biswas is a formal witness of seizure. Similarly, PW- 7, Shri Tutan Barman is a formal witness of seizure. PW-8, Shri Pintu Debnath is a formal witness of seizure. They did not state anything against the appellant. PW-9, Shri Samir Saha who was present during the seizure of some papers and some materials. But he, as well, did not disclose anything incriminating against the appellant. PW-10, Smt. Bina Debbarma is the receiving officer who examined some samples forwarded in connection with that case and submitted her report on 21.06.2014. That report is of no relevance as the Special Judge has discharged the appellant from the charge under Section 21(C) of the NDPS Act, 1985.

PW-11, Sri Asish Kr. Deb is the recording officer. PW-12 is an Inspector of Police, namely Swapan Kr. Das who had investigated the case. He has given elaborate details how he has carried out the investigation and finally after having the SFSL report, he had filed the chargesheet to the special court.

PW-13, is another important witness namely Sri Laxman Debbarma who was allegedly kidnapped during the said operation. He has categorically stated in his testimony that when they raided the house of Dilip Sutradhar, and the entire house was cordoned. They heard halla [loud cries] from inside the house and Dilip fled away from the place of occurrence.

Having appreciated the evidence, this court does not have any hesitation to hold that there is no ring of truth in the evidence to convict the appellant under Sections 147 and 353 of the IPC. In the result, the impugned judgment and order are set aside the appellant is acquitted from the charge as stated, on benefit if doubt.

The appeal stands allowed.It has been stated by Mr. P. K. Biswas, learned senior counsel that the appellant is on bail and as such the sureties are discharged from their respective obligations.

Send down the LCRs forthwith.