Assam: Gauhati High Court Acquits Man Convicted in NDPS Case on Benefit of Doubt

Staff Reporter

Guwahati: The Gauhati High Court set aside an impugned judgement passed by the Special Judge, Udalguri, and acquitted the appellant on the ground of benefit of doubt. The HC said the seized contraband in a NDPS case was not produced before the trial court during trial nor exhibited as material exhibits, and no inventory was prepared by the magistrate.

Justice Malasri Nandi set aside the conviction dated July 2, 2022, passed by the Special Judge, Udalguri, in Special (NDPS) case No. 11/2021. "On a proper analysis, this court has no hesitation in holding that the impugned judgement is liable to be set aside and the appellant is to be acquitted by rendering the benefit of doubt," the order said.

In the impugned order, the accused/appellant was convicted u/s 20(b)(ii)(c) of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- in default SI for six months.

The case of the prosecution is that an FIR was lodged on March 9, 2020, alleging, inter alia, that on March 8, 2020, on receipt of specific information regarding transportation of narcotic drugs in a white Maruti car from Mazbat towards Orang, a naka checking was conducted at Mazbat new market area. Accordingly, during naka checking, one white Maruti car bearing No. ML-05D-0175 was intercepted in the Habigaon area. Thereafter, the car was thoroughly checked, and during the search, the accused appellant was found in the car along with three bags containing 22 kg of cannabis, which were seized in the presence of the witnesses. A case was registered vide Mazbat PS case No. 19/2020, and subsequently the accused/appellant was arrested.

During trial, the charge was framed under Section 20(b)(ii)(c) of the NDPS Act, to which the appellant pleaded not guilty and claimed to be tried. To prove the guilt of the accused/appellant, six witnesses were examined by the prosecution. On the other hand, the accused did not adduce any evidence. After completion of trial, the statement of the accused/appellant was recorded u/s 313 Cr.PC, wherein the incriminating material found in the evidence of the witnesses was put to the appellant, to which he denied the same. The appellant specifically stated that he has been falsely implicated in this case. After hearing the arguments advanced by the counsel for both sides, the trial court convicted the appellant as aforesaid.

Legal Aid counsel for the appellant argued before this court that though it was alleged that the contraband items were seized from the conscious possession of the accused/appellant, the seizure witnesses, i.e., PW-1, 3 and 4, did not support the prosecution case. Hence, the entire seizure is doubtful, as no independent witness was present at the time of seizure of the contraband. It is specifically stated that none of the witnesses were present at the place of seizure, i.e., Habigaon, and as such, there is a violation of sections 49 and 53 of the NDPS Act.

It was also submitted by the counsel for the appellant that source information regarding transportation of Bhang-like substances was received by PW-6, the investigating officer in the case. Accordingly, a case in Mazbat PS was recorded. However, PW-6 has admitted that he has not reported the matter to his immediate superior authority. Hence, there is a total violation of non-compliance of mandatory provisions of Section 42 of the NDPS Act. It is also clear that the place of seizure is not a public place, and as such, Section 43 is also not attracted.

Referring to the case in hand, the HC observed that there is no denial of the fact that the prosecution has not filed any such application for disposal or destruction of the allegedly seized bulk quantity of material, nor was any such order passed by the magistrate. It is pertinent to mention here that the trial court appears to have believed the prosecution story in a haste and awarded conviction to the appellant without warranting the production of a huge quantity of contraband. It is manifest from the record that the seizure witnesses have simply put their signatures at the whims of the investigating agency. All the seizure witnesses, i.e., PW-1, 3 and 4, categorically stated that the seized contrabands were not produced before them while taking their signatures on a piece of paper.

In view of the above discussion, the court was of the opinion that there is a serious doubt with respect to the seizure and acquitted the appellant. The appellant being in jail, he was ordered to be released forthwith if not wanted in any other case.

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