Md. Riyasuddin @ Leihao vs The State of Manipur

This appeal is directed against the judgment of conviction and order of sentence dated 6.5.2013 passed by the Special Court, ND & PS Manipur in Special Trial Case No.14 of 2003 whereby and whereunder the learned Special Judge having found the appellant guilty convicted him for the offence punishable u/s 20(b)(ii)(C) ND & PS Act 1985, and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh. In default of making payment, to undergo further 2 months rigorous imprisonment.

The case of the prosecution is that while N. Kesho Singh, the informant (PW/3), was posted as Sub Inspector of Police at Narcotic Affairs of Border (NAB) P.S., he on 5.8.2002 at about 11 AM received an information from a reliable source that the appellant, Md. Riyasuddin @ Leihao has concealed huge quantity of Ganja in a room taken on rent from the owner, Md. Tomba (not examined). On receiving the said information, the informant, PW/3, reduced it in writing (Ext.p/5) and submitted it for taking legal proceeding before the SP, NAB who issued an order of authorization (Ext.P/6) for making search. Accordingly, PW/3, rushed to the place of occurrence along with other police personnel. Upon reaching the spot, the informant did find some of the persons present over there to whom he made request to be present at the time of search. When search was made in presence of the witnesses 3 gunny bags containing Ganja were recovered from beneath the Cot of the appellant. The said bags were wrapped in a polythene. Upon taking weight 40 Kgs of Ganja was found there in each of 2 bags whereas 3rd bag was containing Ganja weighing 20 Kgs. Said Ganja was seized under Seizure Memo Ext.(P/1) in presence of the witnesses namely, Md. Tolen(PW/1), Saratchandra Singh (PW/2) and Chirom Naba (PW/4) who put their signatures over the seizure memo which has been proved as Exts.P/1(I), P/1(2), P/1(3) respectively. Thereupon the informant took out 25 gm of Ganja from each of the bags as sample and put it in a paper envelope marked as A/1, A/2, B/1, B/2, C/1, and C/2 respectively. Said packet was sealed. It is also the case that the informant arrested the appellant and then obtained his signature on the weighing chart, seizure memo and each of the sealed envelope. The appellant was brought to police station where the informant, PW/3, handed over the accused to the Officer in-Charge and also the seized articles along with the written ezahar (P/2), on the basis of which a case was registered as FIR Case No.14(8) 2002 NBA PS u/s 20(b)(ii)( C) ND & PS Act.

Upon registration of the case, it was taken up for investigation by Sub Inspector of Police, Souglienthang Vaiphei (PW/7). He then seized all those documents such as source report, authorization order, seizure memo, arrest memo, godown receipt under seizure memo Ext.P/4. Thereupon, he recorded the statement of the witnesses and then sent the samples on 18.8.2002 to FSL Pangei for its chemical examination. On 19.12.2002 they received the FSL report (Ext.P/18) whereby materials sent was found to be ganja. Accordingly, the I.O. submitted charge sheet upon which cognizance of offence was taken. When the matter was taken for trial, charge was framed to which the accused pleaded not guilty.

During trial 7 witnesses were examined. Of them, PW/1, Md. Tolen, PW/2 Moirangthem Saratchandra Singh and PW/4 Chirom Naba Singh are the witnesses to the seizure of the Ganja from the room said to have been taken on rent by the appellant. PWs-1 and 2 did not support the case of the prosecution that Ganja was seized from the room in their presence and thereby PW/1 and PW/3 were declared as hostile. However, PW/4, in his evidence, has supported the case of the prosecution by testifying that the police party, during the search recovered in his presence and others, 3 gunny bags from beneath the Cot of the accused who is said to be the occupant of the said room. Thereupon, weight of it was taken. On weighment 2 bags were found containing 40 Kgs each of Ganja whereas the 3rd bag was found containing 20 Kgs of Ganja and then 6 samples were prepared by taking 25 gm of Ganja from each of the 3 bags. He put his signature over the seizure memo as well as the envelope containing samples of Ganja. PW/5, S.Gopendro Singh and PW/6 Ruala Tangpua are the witnesses to seizure of the documents by I.O. (PW/7) such as source report, search authorization, seizure memo, arrest memo and godown receipt.

On closure of the prosecution case the appellant was questioned u/s 313 of the Cr. PC over the incriminating evidence/materials appearing against him to which he denied. Thereupon, the trial court placing its reliance on the testimony of PW/3 relating to seizure of the Ganja from the room said to have been taken by the appellant on rent from Md. Tomba which, on chemical examination, was found to be Ganja reflecting from the Ext. P/18, recorded the order of conviction and sentence as aforesaid. Being aggrieved with the said judgment of conviction and order of sentence, the appellant has preferred this appeal.

Md. Jalaluddin, learned counsel appearing for the appellant submits that as per the case of the prosecution, PW/3 upon getting information that the appellant has concealed huge quantity of Ganja in his rented room, laid a raid in a room said to have been occupied by the appellant and during search 100 Kg of Ganja recovered in presence of PW/1, PW/2 and PW/4 but PW/1 and PW/2 has never supported the factum of recovery of the Ganja from the room whereas PW/4, though has supported the factum of recovery, but never states that recovery was made from a room which belongs to this appellant nor does he say that search was made in presence of the appellant and that timing of such search which he has given in his evidence also does not tally with the timing of the search given by PW/3, the informant and thereby it can easily be said that the prosecution has failed utterly in proving the charge that Ganja was recovered from a room which was taken by the appellant on rent particularly when the house owner, Md. Tomba, was not examined by the prosecution. But the trial court did not appreciate this aspect of the matter in the right perspective and thereby committed wrong in recording order of conviction and order of sentence which is fit to be set aside.

As against this Mr. Athouba Khaidem, learned Addl. PP submits that PW/3, in his evidence, has testified that search was effected in presence of the witnesses and also the accused which gets proved from the fact that the search memo, Ext. P/1 bears the signature not of the witnesses but also of the accused as Ext. P/1(4) and thereby the trial court was absolutely justified in recording the order of conviction and order of sentence.

Having heard learned counsel appearing on behalf of the parties and on perusal of the record, I do find that it is the case of the prosecution that while PW/3 was posted as Sub Inspector at NAB P.S., he received source information, Ext.P/5 that the appellant has kept concealed huge quantity of Ganja in a room taken on rent from the owner, Md. Tomba (not examined). PW/3, on getting this information, reduced it in writing and then submitted before the SP, NAB who issued search authorization, Ext.P/6 upon which the PW/3 along with other police personnel came to the spot where he found certain person present to whom he asked to be present in course of the search. The search was effected in the presence of the witnesses during which 3 bags containing 100 Kgs of Ganja was recovered. Accordingly, PW/3 submitted its written ezahar Ext.P/2 wherein he has specifically stated that search was effected in presence of the witnesses. He has never recorded that search was effected even in presence of the accused. However, he has stated in his written ezahar that accused was arrested and his signature was obtained not only upon the seizure memo but also on the sealed envelope as well as on the weighing chart. But PW/3, in his evidence, has testified that when he came to the spot, the appellant was found in a rented house to whom he called and introduced himself and then search was effected in presence of him during which incriminating Ganja was recovered. Had this fact been true, PW/3 would have certainly mentioned this fact in his written ezahar but admittedly this fact is missing from the written ezahar, Ext/2. Further, the testimony of PW/3 is also to the effect that when he came to the spot, he found the accused person but this version is susceptible to doubt as he was not knowing the accused from before and in that event in absence of any material how he could identify a person as that of the appellant. Furthermore, PW/4, the only seizure witness who has supported the case of the prosecution, has never said in his evidence that search was effected in presence of the appellant and therefore it is quite doubtful as to whether the accused was present at time of search in the room. It is true that signature of the appellant is there on the search memo but in the facts and circumstances stated above one can easily say that the same may have been procured after the search and seizure was effected. Furthermore, the prosecution in absence of any evidence particularly that of the owner, Md. Tomba, has palpably failed to establish that the room from where Ganja was recovered was taken on rent by the appellant.

Under the circumstances, I do find that the prosecution has failed to establish the charge that Ganja was recovered in presence of the accused from a room which was taken by the appellant on rent from the house owner, Md. Tomba. All these aspects of the matter was never considered by the trial court in the right perspective and thereby the learned special Court committed illegality in recording the order of conviction and sentence and hence it is set aside. Consequently, appellant is acquitted of the charge and is discharged from the liability of the bail bond. Thus, this appeal stands allowed.