N.D.P.S. Case No. 50 of 2018 Under Sections 20 (C) and 29 of the N.D.P.S

NDPS Case No. 50 of 2018

DISTRICT : KAMRUP (M), GUWAHATI

IN THE COURT OF THE SESSIONS JUDGE, KAMRUP (M) GUWAHATI

PRESENT: - Shri A. Chakravarty, M.A., LL.M., AJS

N.D.P.S. Case No. 50 of 2018 Under Sections 20 (c) and 29 of the N.D.P.S.

State of Assam .....Complainant

Versus

1. Shri Chotan Roy 2. Shri Shashi Kumar …Accused

Charge framed on : 21.06.2018

Evidence recorded on : 04.10.2018, 16.11.2018, 10.01.2019, 11.03.2019.

Statements recorded on : 18.04.2019

Arguments heard on : 30.05.2019, 28.06.2019

Judgment delivered on : 29.06.2019

Advocates who appeared in this case are:

Shri Girin Das, Addl. P.P. for the Prosecution.

Shri R. Medhi, Advocate for the accused.

J U D G E M E N T

1. In this case, the accused Chotan Roy and Shashi Kumar have been tried for commission of offences punishable under Sections 20 (C) and 29 of

NDPS Case No. 50 of 2018 the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS Act”).

2. The case of the prosecution, as stated in the First Information Report (in short “the FIR”) is that on 02.03.3018, at around 6.30 A.M., at Guwahati Railway Station, while the train checking party of the Government Railway Police Station, Guwahati (in short “Guwahati GRPS”), led by ASI Dinesh Deka, was checking the coaches of the 14019 Down Tripura Sundari Express Train standing in the Platform No.1, in Coach No. S-1 they recovered 15 packets of suspected Ganja (Cannabis), wrapped in creamy colour polythene papers inside four bags carried by two passengers namely, the accused Chotan Roy and Shashi Kumar. As by that time, the train was about to depart from the Guwahati Railway Station, the train checking party brought down the accused to the Platform No.1 and informed the Officer-in- charge of Guwahati GRPS about the matter. The Officer-in-charge of the Guwahti GRPS entered the information in the General Diary Book vide entry No. 30, dated 02.03.2018 and issued Authority Letter to the S.I. Girindra Nath Haloi to do the needful as per provisions of the NDPS Act. On the strength of the Authority Letter, S.I. Girendra Nath Haloi went to the Platform No.1 where the accused were detained by the train checking party and recorded statements of the accused persons and witnesses. He also searched the bags and body of the accused persons and recovered four packets of suspected Ganja from the airbag, named Sony, four packets of suspected Ganja from the black colored airbag written ADIDAS on the red portion, four packets of suspected Ganja from the black colored airbag written as ADIDAS on the deep cream colored portion, three packets of suspected Ganja from the black colored backpack named IDOL. When he asked the accused persons about the suspected Ganja, they disclosed that eight packets of suspected Ganja found in the two airbags belonged to the accused Chotan Roy and seven packets of suspected Ganja found in the airbag and in the back pack belonged to the accused Shashi Kumar. They also told that they had brought the Ganja from Agartala for commercial purpose for selling in their native places for profit. S.I. Girindra Nath Haloi weighed the Ganja and found that each packet contained two kilograms of Ganja, in total 30 kilograms in 15 packets and seized eight packets weighing

NDPS Case No. 50 of 2018

16 kilograms from the possession of the accused Chotan Roy and seven packets weighing fourteen kilograms from the possession of the accused Shashi Kumar. Thereafter, he collected two samples of 24 grams each from each packet, one as original and the other as duplicate, for sending to the Forensic Science Laboratory (in short “the FSL”) for examination in presence of the witnesses and the accused persons, following all the formalities as required under the NDPS Act. Thereafter, he arrested the accused persons as per the provisions of Section 43 of the NDPS Act and took them to the Guwahati GRPS and handed over them, the seized articles and the samples to the Officer-in-charge of the Guwhati GRPS. Thereafter, he lodged an F.I.R. of the incident with the Officer-in-charge of the Guwahati GRPS.

3. Based on the F.I.R., the Officer-in-charge of the Guwahati GRPS registered the case No. 53/2018, for commission of offences under Sections 20 (C) and 29 of the NDPS Act against the accused Chotan Roy and Shashi Kumar and entrusted Woman Sub-Inspector of Police namely, Smt. Binu Hazarika, to investigate the case. Accordingly, Woman Sub-Inspector of Police Smt. Binu Hazarika investigated the case

4. During the course of investigation, the investigating officer recorded statements of several witnesses and sent the samples of the suspected Ganja to FSL for examination. After receiving positive FSL report and finding sufficient evidentiary materials against the accused persons regarding commission of offences under Sections 20 (C) and 29 of the NDPS Act, the investigating officer submitted charge-sheet for offences under the said sections of law against accused Chotan Roy and Shashi Kumar in this court. Hence this case.

5. During trial, my learned predecessor framed charges under Sections 20 (c) and 29 of the NDPS Act against the accused Chotan Roy and Shashi Kumar. When the contents of the charges were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.

6. The prosecution, in order to prove its case, examined six witnesses. The accused did not examine any witness.

NDPS Case No. 50 of 2018

7. In their examination under section 313 Cr.P.C., the accused have denied the prosecution case and have stated that the allegations leveled against them are false and baseless.

8. The point for determination in this case is:-

Whether on 02.03.2018, at around 6.30 A.M., in the 14019 Down Tripura Sundari Express train standing in the Platform No. 1 of the Guwahati Railway Station, under a criminal conspiracy, the accused Chotan Roy and Shashi Kumar were found illegally possessing 30 kilograms of Ganja (Cannabis) in contravention of the provisions of the NDPS Act and thereby committed an offence punishable under Sections 20 (b) (ii) (C) and 29 of the said Act?

If so, what punishment do they deserve?

DECISION AND REASONS THEREOF

9. I have carefully examined the evidence on record, gone through the relevant documents on record and after hearing the arguments advanced by the learned counsel for both the sides, give my decision on the above point as follows:-

10. PW-1 Girindra Nath Haloi, the informant has deposed that on 02.03.2018, he was working as an SI of Police at the Guwahati GRPS. On that day, at around 06:30 am, the train checking GRP personnel detected two passengers with a huge quantity of Ganja in the Down Tripura Sundari Express train standing in the Platform No.1. ASI Dinesh Deka informed the Officer-in-charge of the Guwahati GRPS about the matter and the Officer-in- charge of the Guwahati GRPS entered the information in the general diary book vide entry No. 30, dated 02.03.2018. Ext. 1 is the extract copy of the said general diary entry and Ext. 1(1) is the signature of the Officer-in-charge of the Guwahati GRPS namely, Utpal Kr. Das, which he can identify. Thereafter, the Officer-in-charge of the Guwahati GRPS issued an Authority letter, authorizing him to take action as per the provisions of the NDPS Act. Ext. 2 is the said Authority letter and Ext. 2(1) is the signature of the Officer-

NDPS Case No. 50 of 2018 in-charge of the Guwahati GRPS namely, Utpal Kr. Das, which he can identify. Then he proceeded to the Platform No.1 with the weighing scale and other necessary articles. On going there, he found that the train checking party had detained two persons involved in the case in the Platform No.1. The said two persons are present in the dock. Along with the said two persons, there were four bags. Of the said four bags, one bag was a back pack and the other three were travel bags. In the back pack, the found three packets of Ganja and in the other three bags, he found four packets of Ganja in each bag. The Ganja was wrapped in cream-coloured polythene paper. From accused Sashi Kumar, one back pack and one travel bag were recovered. In total, 14 kilograms of Ganja was recovered from the accused Sashi Kumar. From the accused Chotan Rai, two travel bags were recovered. In total, 16 kilograms of Ganja was recovered from the accused Chotan Rai. From the accused Chotan Rai, two mobile handsets, one Voter ID card, one general ticket and cash amount of Rs.1,010/- were recovered and seized. The recovered Ganja was also seized. From the possession of the accused Sashi Kumar, 14 kilograms of Ganja, one back pack, one travel bag, one Vivo mobile handsets and one general ticket were recovered. Ext. 3 is the seizure list and Ext. 3(1) is his signature. Ext. 3(2) is the signature of the accused Chotan Rai and Ext. 3(3) is the signature of the accused Sashi Kumar. He collected 48 grams of sample from each packet and prepared 2 samples from each packet, 1 as original and 1 as duplicate. A-1 to A-15 are the original sample packets and B-1 to B-15 are the duplicate sample packets. M. Ext. 1 is the envelope containing 15 duplicate sample packets. M. Ext. 1(1) is his signature. M. Ext. 1(2) and M. Ext. 1(3) are the signatures of the accused Chotan Rai and Sashi Kumar, respectively. M.Ext. 2 is the envelope containing three mobile handsets, two journey tickets, one Voter ID Card in the name of Choton Rai and cash amount of Rs.1,010/. M.Ext. 2(1) and M.Ext. 2(2) are the signatures of the accused Choton Rai and Sashi Kumar, respectively. M. Ext. 3 is the back pack recovered from the possession of the accused Sashi Kumar. Inside the same, he found three packets of Ganja. M.Ext. 4 is the travel bag of Sashi Kumar. Inside the same, he found four packets of Ganja. M.Ext. 5 and M.Ext. 6 are the 2 travel bags recovered from the possession of the accused Choton Rai. Both the bags contained four packets of Ganja each. In the seizure list, he obtained the signatures of the witnesses. He examined the seizure

NDPS Case No. 50 of 2018 witnesses. After completion of the process, he returned to the Guwahati GRPS. He lodged a formal FIR at the Guwahati GRPS. Ext. 4 is the said FIR and Ext. 4(1) is his signature. He handed over the accused persons, seized articles and the sample packets to the Officer-in-charge of the Guwahati GRPS.

11. In the cross-examination he has stated that in the Ext.1, there is no description of any of the bags, nor is there any description about the colour of the bags. In the extract copy of the general diary entry, there is no mention that the after receiving the information, the Officer-in-charge of the Guwahati GRPS intimated the same in writing to superior officer. In the general diary book entry, the details may not be recorded. In the Ext.2 Authority letter, memo number and the time of issuance of the same are not mentioned. He has denied the suggestion that the Authority letter was manufactured subsequently. In the journey tickets, the names of the accused persons are not mentioned. The tickets also do not contain the signatures of the accused persons. He has denied the suggestion that the two accused persons did not travel on that day by the Tripura Sundari Express train. He has stated that did not prepare any separate weighment sheet. In the Platform No.1, there are many shops and establishments. In the seizure list (Ext.3), only the GRP personnel signed as seizure witnesses. He has stated that in spite of calling other persons to become the witness of the seizure, they did not agree to his request. He has denied the suggestion that as no Ganja was recovered from the possession of the accused persons on that day and that he did not call any other person to become the witness of the search and seizure. He did not prepare any separate inventory under Section 52-A of the NDPS Act. He did not mention in the FIR and in the seizure list that he carried the weighing scale and other materials, however, he has mentioned the same in the case diary. He has denied the suggestion that he did not draw sample as per the procedure laid down in the Standing Order 1/89. He did not obtain signatures of the accused persons or of the witnesses in the seized bags. He also did not sign as a witness in the seized bags. The bags are not in sealed condition. He has stated that inside the bags, the Ganja is in loose condition. The packets have been damaged by rats. He did not put any separate identification mark in the bags. The colours have been

NDPS Case No. 50 of 2018 mentioned in the seizure list. There was no other document inside the bags to prove that the bags belonged to the accused persons. The envelope containing the duplicate sample packets does not contain any identification mark, regarding which sample packet was drawn from which packet of Ganja. He has denied the suggestion that the M.Ext. 3, M.Ext. 4, M.Ext. 5 and M.Ext. 6 bags did not belong to the accused persons. He has denied the suggestion that neither the accused persons carry any Ganja, nor they travelled by the Tripura Sundari Express train. He has denied the suggestion that they have falsely implicated the accused persons in this case.

12. PW-2 Subhash Cherty has deposed that on 02.03.2018, he was doing routine train checking duty at the Guwahati Railway Station. His duty was from 6 am to 10 pm. ASI Dinesh Deka was the incharge of the train checking party. Along with constable Subhash Singh and others, he was with Dinesh Deka. At around 06:00/06:45 am, the 14019 down Tripura Sundari Express train arrived in the platform No.1. While they were checking the S-1 compartment, they found two general ticket passengers. The said two passengers are in the dock today. They were carrying four bags. On suspicion they asked the passengers to open the bags and during search, they found suspected Ganja inside the bags. There were in total 15 packets of Ganja. As the accused attempted to flee, they brought down them to the platform No.1. ASI Dinesh Deka informed the Officer-in-charge of the Guwahati GRPS about the matter and the Officer-in-charge of the Guwahati GRPS sent SI Girindra Nath Haloi to pursue the information and to do the needful. SI Girindra Nath Haloi arrived there along with the weighing scale of the Guwahati GRPS. SI Girindra Nath Haloi himself checked all the 15 packets. He weighed the packets and also collected samples for sending to the FSL. He also took the accused person in his custody and thereafter, took them to the Guwahati GRPS. In total 30 kilograms of Ganja was recovered from the possession of the accused persons. Two Sumsung mobile handsets, one Vivo mobile handset and one Voter ID cards were recovered from the possession of the accused persons and SI Girindra Nath Haloi seized the same. The mobile handsets were kept in one envelope. Two general journey tickets were also kept in the envelope. He put his signature in the sealed packets of sample. Material Ext.1 is the duplicate sample. Material Ext.1(4) is his signature. Ext.3

NDPS Case No. 50 of 2018 is the seizure list and Ext.3(4) is his signature. The seized article and the sample packets and the accused persons were taken to the GRPS by Girindra Nath Haloi. The seized packets are before the Court. The bags contained the packets wherefrom the Ganja was recovered.

13. In the cross-examination he has stated that in the seizure list, there is no signature of any independent witness. He has denied the suggestion that as they did not detect or recover any Ganja from the possession of the accused persons, no independent witness was called by them. In the seizure list, it is not mentioned that the recovered bags and the sample packets were sealed with departmental seal at the place of occurrence. He does not know whether there was mention in the seizure list about the seizure of the general tickets from the possession of the accused persons. However, the same was seized. It is true that the passenger with general ticket cannot legally travel in a reserved coach. In the same coach, there were other passengers too and they were also carrying luggages. In the seized bags, their signatures were not taken. At the time of seizure, the Ganja were in packets, but now, the same are not in the packets. He has denied the suggestion that the seized bags did not belong to the accused persons. He has denied the suggestion that the accused persons did not carry any bag or any Ganja on that day. He has denied the suggestion that no Ganja was recovered from the possession of the accused persons. He has denied the suggestion that he did not state before the Investigating Officer that the Investigating Officer has seized the bags and the Ganja from the possession of the accused persons in his presence.

14. PW-3 Subhash Singh has deposed that he knows the accused persons. On 02.03.2018, he was on train checking duty at the Guwahati Railway Station from 5 am to 10 pm. At around 6:30/6:45 am, the Down Tripura Sundari Express train arrived from Agartala in the platform No.1. ASI Dinesh Deka was the incharge of the train checking party. During checking, in coach No. S-1, they saw the two the accused persons and suspected them. During search of their bags, they detected packets of Ganja . As the train was leaving, they brought down the accused persons to the platform No.1 along with their bags. ASI Dinesh Deka informed the Officer-in-charge of the Guwahati GRPS about the matter over phone. The Officer-in-charge of the

NDPS Case No. 50 of 2018

Guwahati GRPS then sent SI Girindra Nath Haloi along with the weighing scale. During search of the bags of the accused persons, SI Girindra Nath Haloi found 8 packets of Ganja from the bags of Chotan Roy and 7 packets of Ganja from the bags of Shashi Kumar. He weighed all the packets and found the total weight to be 30 kilograms. He collected samples on the spot. SI Girindra Nath Haloi seized the Ganja along with three mobile handsets, general tickets and Voter ID cards from the possession of the accused persons and prepared seizure list. Ext.3 is the seizure list and Ext.3(5) is his signature therein. He took sample and sealed the same in their presence. Material Ext.1 is the duplicate sample packets and Material Ext.1 (5) is his signature. Material Ext.2 is the envelope containing the three mobile handsets, Voter ID cards and the railway tickets recovered and seized from the possession of the accused persons. Material Ext.2(2) is his signature. After completing the process of search and seizure, the accused person and the seized articles were taken to the Guwahati GRPS.

15. In the cross-examination he has stated that in the seizure list, there is no signature of any independent witness. He has denied the suggestion that as they did not detect or recover any Ganja from the possession of the accused persons, no independent witness was called by them. In the seizure list, it is not mentioned that the recovered bags and the sample packets were sealed with departmental seal at place of occurrence. He does not know whether there was mention in the seizure list about the seizure of general tickets from the possession of the accused persons. However, the same were seized. It is true that the passengers with general ticket cannot legally travel in a reserved coach. In the same coach, there were other passengers too and they were also carrying luggages. In the seized bags, their signatures were not taken. At the time of seizure, the Ganja were in packets, but the same are not in the packets in the court. He has denied the suggestion that the seized bags did not belong to the accused persons. He has denied the suggestion that the accused persons did not carry any bag or any Ganja on that day. He has denied the suggestion that no Ganja was recovered from the possession of the accused persons. He has denied the suggestion that he did not state before the Investigating officer that the Investigating officer has seized the bags and the Ganja from the possession of the accused persons in

NDPS Case No. 50 of 2018 his presence. In the bags, there is neither any signature of the Magistrate, nor any signature of the Malkhana Incharge. In the duplicate sample packets, there is no signature of the Malkhana Incharge.

16. PW-4 Dinesh Deka has deposed that on 02.03.2018, he was posted at the Guwahati GRPS as an Assistant Sub Inspector. On that day, he, constable Subhash Singh, Subhash Chetry and others were doing train checking duty. While they were checking the S-1 compartment of the 14019 Down Tripura Sundari Express train, they found that the accused Chotan Roy and Shashi Kumar were travelling in the reserved compartment with general tickets. Seeing them, the accused Shashi Kumar attempted to flee away but, they apprehended him. During checking, suspected Ganja was found inside their bags. He then informed the Officer-in-charge of the Guwahati GRPS about the matter. The Officer-in-charge of the Guwahati GRPS authorized Girindra Nath Haloi to do the needful as per the provisions of the NDPS Act and sent him to the platform No.1. There were, in total, 15 packets of Ganja with the accused persons. The accused were taken down to the platform No.1 as the train was leaving. SI Girindra Nath Haloi weighed all the packets and found that there were 2 kilograms of Ganja in each packet. Thereafter, he collected samples for sending to the FSL. In total 30 packets of samples were prepared by SI Girindra Nath Haloi for sending to the FSL. The packets of sample were then put in a large envelope and sealed the envelope in their presence. Material Ext.1 is the duplicate sample. Material Ext.1 (6) is his signature. Along with the Ganja, they also recovered three mobile handsets, two railway journey tickets and two voter ID cards from the possession of the accused persons. An amount of Rs. 1,010/- was also recovered from the possession of the accused persons. Those articles were kept in another envelope marked as Material Ext.2. Material Ext.2 (3) is his signature. Ext.3 is the seizure list. Ext.3 (6) is his signature. The seized Ganja and the bags are before the Court.

17. In the cross-examination he has stated that in the seizure list, there is no signature of any independent witness. He has denied the suggestion that as we they did not detect or recover any Ganja from the possession of the accused persons, they did not call any independent witness. In the seizure list, it is not mentioned that the recovered bags and the sample

NDPS Case No. 50 of 2018 packets were sealed with departmental seal at the place of occurrence. He does not know whether seizure of the general tickets from the possession of the accused persons is mentioned in the seizure list. He has denied the suggestion that the passenger with general ticket cannot legally travel in reserved coach. In the same coach, there were other passengers too and they were also carrying luggages. In the seized bags, their signatures were not taken. At the time of seizure, the Ganja were in packets, but now it is not in the packets. He has denied the suggestion that the bags did not belong to the accused persons. He has denied the suggestion that the accused persons did not carry any bag or Ganja on that day. He has denied the suggestion that no Ganja was recovered from the possession of the accused persons. He has denied the suggestion that he did not state before the investigating officer that he had seized the bags and Ganja from the possession of the accused persons in his presence. While informing the Officer-in-charge of the Guwahati GRPS over phone, he did not describe the colour and other details of the bags. The duty register is not submitted before the Court to prove that they were on train checking duty on that day. He has denied the suggestion that the accused persons were not travelling in that compartment on that day along with the seized bags.

18. PW-5 Dr. Dhrubajyoti Hazarika, Deputy Director, Drugs and Narcotics Division, who had examined the samples of the seized Ganja, has deposed that he had examined the samples as per the UNO’s Drug Testing Manual and the samples gave positive tests for cannabis (Ganja). Ext. 5 is the report prepared by him and Ext. 5(1) is his signature therein.

19. In the cross-examination he has stated that he has not seen the copy of the forwarding letter through which the samples were sent for examination. In his report, he has not mentioned whether the sealed envelope he had received bear the signature of the investigating officer, accused or witnesses. In his report, he has not mentioned the procedure he adopted while examining the exhibits. He has not seen the remnant of the sample which he had sent back to the forwarding authority in the court. He has submitted the report along with the remnant of the sample to the Director through the peon book of the office. The peon book is not before the court.

NDPS Case No. 50 of 2018

20. PW-6 Smt. Binu Hazarika, the investigating officer of the case has deposed that on 02.03.2018, she was posted at the GRPS Guwahati as a Woman Sub-Inspector of Police. On that day, the officer-in-charge of the Guwahati GRPS entrusted her to investigate the Guwahati GRPS Case No.53/2018, under Sections 20 (c) and 29 of the NDPS Act. Accordingly, she investigated the case. During the course of investigation, she recorded the statement of the informant and went to the place of occurrence. The place of occurrence was in the platform No.1 of the Guwahati Railway Station. She also recorded the statements of the accused persons. On 05.03.2018, she sent the samples of Ganja to the FSL for examination. She received the report of the FSL on 25.03.2018. In the report, the FSL has stated that the sample of Ganja gave positive tests for Ganja (Cannabis). Therefore, she submitted the Ext.7 charge-sheet against the accused persons. Ext. 7(1) and Ext. 7(2) are her signatures therein.

21. In the cross-examination she has stated that the informant did not mention in the FIR or in the seizure list whether he has given any number or mark in the samples. She has denied the suggestion that the sample examined by the FSL has no connection with the sample of this case. She did not see how and from whom the informant had seized the alleged Ganja of the case. She has denied the suggestion that the accused did not possess any Ganja and she has filed a false charge-sheet against them.

22. As can be seen from the discussion made above, the prosecution witnesses have proved that 30 kilograms of Ganja, which is commercial quantity, were seized from the possession of the accused Chotan Roy and Shashi Kumar. Further, as the accused persons were travelling together, they were transporting and possessing the seized Ganja under a criminal conspiracy for commercial purpose. Further, the PW-5 has proved that the suspected Ganja was actually Cannabis (Ganja).

23. Failing to check the prosecution case, the learned counsel for the accused vehemently argued that as before the alleged search and seizure of the Ganja, the provisions of Section 42 and 57 of the NDPS Act were not complied with; the prosecution case is liable to be rejected on this count alone. I do not agree with the contention of the learned counsel for the

NDPS Case No. 50 of 2018 accused as Section 42 of the NDPS Act is not applicable to the instant case and as in the instant case, the Ganja was seized in a public place. Further, in the instant case, the search and seizing officer has complied with the Section 57 of the NDPS Act as immediately after the recovery of the Ganja, the train checking party informed the Officer Incharge of the GRPS about the same and the Officer Incharge of the GRPS authorized the PW-1 to take necessary action as per the NDPS Act and accordingly, the PW-1 went to the place where the accused were detained and thereafter, he thoroughly searched and seized the Ganja of the case and thereafter, lodged the FIR of the case. Therefore, the same is sufficient compliance of the requirement of the Section 57 of the NDPS Act.

24. In the case of State Of Haryana vs Jarnail Singh and others, decided on 29 April, 2004, the Hon’bleCourt observed as follows:

“We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of Police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 were not attracted.”

25. The learned counsel for the accused further argued that there is discrepancy about the weight of the sample taken. The learned counsel for the accused has argued that PW-1 has deposed that 30 Nos. of samples in duplicate weighing 48 grams from each packet of Ganja were collected. But, it is nowhere stated that the weight of the sample was 48 grams. The learned counsel has misinterpreted the testimony of PW-1. The PW-1 has deposed that he has collected 48 grams of sample from each packet and prepared two samples in duplicate, one as original and another as duplicate. That means, from 48 grams, two samples of 24 grams were prepared and as there were 15 packets of Ganja recovered from the possession of the accused persons, he prepared 30 samples which is the requirement of the law. Therefore,

NDPS Case No. 50 of 2018 though all the witnesses did not properly depose about the same, the same is a mere discrepancy and not contradiction and hence, the same has no bearing on the outcome of the case. Therefore, the contention of the learned counsel for the accused is rejected.

26. Further, PW-5 Dr. Dhurbajyoti Hazarika, who had examined the samples has deposed that he received one sealed envelope containing 15 closed polythene packets marked as A-1 to A-15 containing 24 grams dry plant materials in each packet and the samples gave positive tests for Cannabis (Ganja). Therefore, as the PW-1 has deposed that he had prepared 30 samples and 15 samples were sent to the FSL for examination and 15 samples were preserved as duplicate, the PW-5 proved that the PW-1 prepared the samples containing 24 grams in each sample. Defence did not challenge the PW-5 in the cross examination that the sample packets were not in sealed condition and each packet did not contain 24 grams of dry plant materials. The prosecution has exhibited the packets of 15 samples preserved as duplicate as Material Ext.I and the defence did not challenge the prosecution witnesses that the Material Ext.I samples were not in sealed condition or not of 24 grams weight. The defence could very well have checked the Material Ext.I to ascertain whether the sample contained 24 grams in each packet or not. Therefore, it must be held that the defence did not do so as the samples were collected and sealed as per the law and each packet of sample contained 24 grams of suspected Ganja.

27. The learned counsel for the accused further argued that for non- compliance of Section 52-A of the NDPS Act, the prosecution case is liable to be rejected. I do not agree with this contention of the learned counsel for the accused. Because, in the case in hand, during trial, the prosecution has produced the seized Ganja with the bags in the court and PW-1, PW-2, PW-3 and PW-4 have exhibited the same in the Court. Therefore, the compliance of Section 52-A is not necessary.

28. The learned counsel for the accused further argued that as the search and seizure was not made in presence of any independent witness, the prosecution case is liable to be rejected. I do not agree with this contention of the learned counsel for the accused as people do not come

NDPS Case No. 50 of 2018 forward to become witness in such cases. Therefore, the search and seizure by police officer in presence of other police personnel cannot be rejected as there is no such law to hold that the police personnel are not reliable witness. On the contrary, there is a presumption that government official perform their duties as per the law.

29. In the case of State Govt. of NCT of Delhi vs. Sunil and another, reported in (2001) Cri.L.J, 504, the Hon’ble Supreme Court observed as follows:

“It is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the Accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the Accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”

30. In the result, from the facts and circumstances of the case and above discussion, I hold that the prosecution has succeeded in bringing home the charges under Sections 20 (b) (ii) (C) and 29 of the NDPS Act against the accused Chotan Roy and Shashi Kumar that on 02.03.2018, at around 6.30 A.M., in the 14019 Down Tripura Sundari Express train standing in the Platform No. 1 of the Guwahati Railway Station, under a criminal conspiracy, the accused Chotan Roy and Shashi Kumar were found illegally possessing

NDPS Case No. 50 of 2018

30 kilograms of Ganja (Cannabis), in contravention of the provisions of the NDPS Act and as 30 kilograms of Ganja (Cannabis) is more than the commercial quantity, they are guilty of committing offences punishable under Sections 20(b)(ii)(C) and Section 29 of the NDPS Act. But, as the punishment for possessing narcotic drugs and psychotropic substances under a conspiracy is punishable for the offence committed, i.e., illegally possessing and transporting 30 kilograms of Cannabis (Ganja) in contravention of the provisions of the NDPS Act, which is punishable under section 20(b)(ii)(C) of the NDPS Act, there is no necessity of punishing the accused for committing the offence Section 29 of the NDPS Act.

31. The Probation of Offenders Act is not applicable to a case under Sections 20 (b) (ii) (C) of the NDPS Act. Hence the convicts are not entitled to get the benefit of the ameliorative relief as envisaged under the said Act.

32. Heard the convicts Chotan Roy and Shashi Kumar on the question of sentence. They have pleaded leniency in awarding the punishment on the grounds that they are first offenders and are the sole bread earners of their families.

33. In the case of STATE vs. MUSHTAQ AHMAD & OTHERS, reported in (2015) 10 SCALE 419: (2016) 1 SCC 315, the Hon’ble Supreme Court has observed as follows:

“15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the Respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable Under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on

NDPS Case No. 50 of 2018 the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.

34. In the instant case, the convicts are drug traffickers and they were possessing and transporting much more than commercial quantity of Ganja under a criminal conspiracy. But, as the convicts were individually possessing less than the commercial quantity of Ganja, the ends of justice will be served if the convicts are sentenced to undergo the minimum sentence prescribed by the law. The point is decided accordingly.

O R D E R

35. Considering the entire facts and circumstances of the case, I sentence the convicts Chotan Roy and Shashi Kumar to undergo rigorous imprisonment for ten years each and to pay fine of Rs. 1,00,000/- (Rupees one lakh) only, each in default to undergo rigorous imprisonment for six months each, for committing the offence under Sections 20 (b) (ii) (C) of the NDPS Act which, in my opinion, will meet the ends of justice in this case. The period of detention already undergone by the convicts during investigation and trial shall be set-off from the sentence of imprisonment. Issue Jail warrants.

NDPS Case No. 50 of 2018

36. Furnish copy of the judgment to the convicts free of cost, immediately. 37. Return the seized mobile handsets and the voter ID card to the accused in due course of time.

38. Destroy the other seized articles in due course of time.

39. Signed, sealed and delivered in the open Court on this the 29th day of June, 2019, in Guwahati.

(Shri A.Chakravarty) Sessions Judge Kamrup (M), Guwahati Dictated by me

(Shri A. Chakravarty) Sessions Judge Kamrup (M), Guwahati

NDPS Case No. 50 of 2018

A P P E N D I X

A. Prosecution Witnesses: 1. PW-1 Girindra Nath Haloi 2. PW-2 Subhash Cherty 3. PW-3 Subhash Singh 4. PW-4 Dinesh Deka 5. PW-5 Dr. Dhrubajyoti Hazarika 6. PW-6 Smt. Binu Hazarika

B. Prosecution Exhibits: 1. Ext.1 Extract copy of the GD Entry 2. Ext.2 Authority letter 3. Ext.3 Seizure List 4. Ext.4 FIR 5. Ext.5 FSL Report 6. Ext.6 Forwarding letter 7. Ext.7 Charge-sheet

C. Material Exhibits: 1. M.Ext.1 Envelope containing 15 packets sample kept as duplicate 2. M.Ext.2 Envelope containing three mobile handsets, two journey train tickets, voter ID card of the accused Chotan Rai and cash amount of Rs. 1,010/-. 3. M.Ext.3 Back pack recovered from possession of the accused Shashi Kumar 4. M.Ext.4 Travel bag recovered from possession of the accused Shashi Kumar 5. M.Ext.5 and M.Ext.6 Two travel bags recovered from possession of the accused Chotan Rai.

(Shri A.Chakravarty) Sessions Judge Kamrup (M), Guwahati