Noor Islam vs State

Re : CRAN 1483 of 2019

We have heard learned Senior Counsel for the applicant in this application for suspension of sentence. We have also heard learned Additional Public Prosecutor for the State.

On 19-05-2013 at about 19-15 Hrs., it appears that the police obtained information about huge quantity of Ganja being carried on a motorcycle by two persons. The police personnel attempted to intercept the vehicle. The rider and the pillion rider escaped and were not tracked down by the police. After that incident on 19-05-2013 and a procedure of seizure, sampling etc. (which procedures are seriously challenged by the appellant), Hayder Ali was identified as one of the accused persons and final report was laid as against him on 21-12-2014 for offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985. After recording evidence of the witnesses and taking on record certain documents as also the evidence, an application was made by the prosecution invoking Section 319 Cr.P.C. on the premise that prima facie materials show that another person, Noor Islam (appellant/applicant for bail), is also involved in this case. Accordingly, the Court below again framed a charge on 01-09-2018 against the appellant, Noor Islam, under Section 20(b)(ii)(C)/29 of the NDPS Act.

The trial Court acquitted Hayder Ali and convicted Noor Islam under Section 20(b)(ii)(C)/29 of the NDPS Act. This appeal stands admitted against such order of conviction and sentence.

In support of this application for suspension of sentence, learned Senior Counsel pointed out that the provisions of Section 42 and Sections 57 and 52A of the NDPS Act have been violated in their compliance and the mandatory provisions have been breached and, therefore, due procedure of law has not been followed in the instant case. He further took us through the material evidence which would show that the Investigating Officer before the Court below as PW 11 did not produce the seized articles before the Magistrate for the purpose of inventory and certification as per the provisions of Section 52A of the NDPS Act. Reference was made to the decision of the Apex Court in Jogendra Yadav & Ors. Vs. State of Bihar & Anr., reported in (2015) 9 Supreme Court Cases 244, to state that the rigor of initiation of proceedings through Section 319 Cr.P.C. has not been adequately appreciated and followed by the Court below and this is not a case where the power under Section 319 Cr.P.C. could have been exercised.

The sum and substance of the conclusion arrived at by the Court below as against the appellant, Noor Islam, is that the registration of the motorcycle, which was found lying on the road and from which the persons who were carrying the contraband ran away, stood in the name of Noor Islam. But the other material evidence on record include certain documents which were placed on record by the prosecution disclosing an apparent version of certain persons including the father of Noor Islam showing that there was material to show that the ownership of the vehicle in question had passed hands. The question whether Noor Islam was in possession of the vehicle or whether the mere fact that the vehicle stood registered in his name or whether there was agreement of sale of the motorcycle in favour of three persons as also whether the statements given by the witnesses in that regard to the Investigating Officer were not affirmed by them while in court are materials to be examined while appreciating the evidence. Be that as it may, the registration of a vehicle in the name of a particular person under the law relating to registration of motor vehicles may prima facie give a strong presumption as to the ownership of the vehicle but when the totality of evidence on record is taken into consideration, this is a case where different aspects of the matter may arise particularly, in favour of the appellant, Noor Islam.

All this apart, we notice from the procedure adopted by the Court below that the witnesses who were examined at the trial of Hayder Ali were not recalled for the purpose provided under sub-section (4) of Section 319 Cr.P.C., which enjoins in clause (a) thereof that the proceedings in respect of a person against whom Section 319 Cr.P.C. is invoked, shall be commenced afresh and witnesses reheard. The chief examination of the witnesses recorded during the course of trial of Hayder Ali was kept intact and utilized as chief examination for the purpose of permitting Noor Islam to cross-examine the witnesses. This prima facie is a procedural irregularity which goes to the root of the matter to our satisfaction to hold that the appellant has made a strong prima facie case of possibility of success in this appeal. The appellant is, therefore, entitled to suspension of sentence.

Accordingly, the appellant shall be released on bail on furnishing a bail bond of Rs.25,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of learned Chief Judicial Magistrate, Cooch Behar, and on further condition that the appellant shall meet the Officer-in-Charge of Shitalkuchi Police Station on 16th of October, 2019 and thereafter, on the 1st and 16th day of every succeeding month and further that the appellant shall be personally present or be represented before this Court when the appeal is taken up for hearing.

The application being CRAN 1483 of 2019 is, thus, disposed of.

Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.