IN THE COURT OF ADDITIONAL SESSIONS JUDGE NO.1 KAMRUP (M)

Present : Shri C.Das, Addl. Sessions Judge No.1, Kamrup (M) Guwahati

JUDGMENT IN NDPS CASE NO.7/2015 u/s 21(c)/29 of NDPS Act

Union of India, represented by- Sri P. Bishwarjit Singh, Intelligence Officer, Narcotics Control Bureau,(NCB) Guwahati Zonal Unit .... Complainant

versus-

1. Chandra Pal 2. Shiv Kumar Verma .... Accused

Appearance : For the complainant : Mr. R. Baishya, Special PP, NCB For the accused : Mr. S.K. Barkakati, B. Sharma, Advocates

Date of recording evidence : 30/1/16, 29/5/16, 21/9/16, 22/12/16, 27/1/17 Date of argument : 30/10/17, 13/11/17 Date of judgment : 18/11/17

JUDGMENT

1. The case of the complainant briefly, is that the complainant is an Intelligence Officer attached to Narcotics Control Bureau, Guwahati Zonal 2

Unit, Guwahati and is filing the complaint as a public servent in discharge of his official duties and as per section 53 of ND&PS Act, 1985 (as amended), as well as as per office order dated 29/7/14 after conducting investigation of the case, the final complaint is filed. It is stated that after getting information from a reliable source on 29/7/14 at 0500 hours that two young persons will be carrying a consignment of suspected heroin kept in two baggages; will be boarding in the NE. Express train at Guwahati railway station on 29/7/14, it was reduced to writing to Sri Madho Singh, Zonal Director, NCB, Guwahati, and than, a team was constituted of Sri Sanjay Singh, IO, S.K. Singh, IO, Santu Saha, IO, P. Bishwarjit Singh, IO, Sandeep Kumar, Sepoy, Vipin Kumar, Sepoy, and in case of any recovery of contraband, Sri Suresh Kumar Singh shall be the Seizing Officer as authorised by Zonal Director, NCB, Guwahati Zonal Unit.

2. It is further stated that after getting proper movement order, the above team started from the office at 0600 hours on 29/7/14 and reached Guwahati railway station at 0645 hours. After reaching the railway station, the NCB team intimated two persons namely; Sri Ajit Das and Sri Pranjal Baruah, standing at the platform no.01 of railway station about its motive and requested them to be the independent wintesses in the process of search and seizure. Then the NCB team started to looking for the persons carrying the suspected heroin, kept in the suitcase and a trolley bag. After sometime, the team saw two persons carrying one suitcase and a trolley bag by each person, standing at the platform no.01, resembling as per the information. The NCB team went near to the suspected persons and introduced themselves by showing their ID cards and on request of the team, two persons introduced themselves as Shiv Kumar Verma and Chandra Pal, both from Bareilly district of , and that they will be going by NE Express train at 0945 hours to Anand Vihar Terminal. The NCB team searched the both suitcase and trolley bag, carried by said persons and found one packet of P1, containing brown colour powder believed to be heroin in red colour trolley bag and two packets of P2 and P3 in the suitcase made of orient, kept in the false cavity and on being asked, Shiv Kumar Verma and Chandra Pal admitted that the trolley bag belongs to Shiv Kumar Verma while the suit case belongs to Chandra Pal. Then in presence of two independent witnesses and the accused persons, the NCB team took out some quantity 3 from the three packets and after mixing them homogeneously, tested the same with the portable Narcotics Drug Detection Kit which was carried by the NCB team, and it gave positive result for the test of heroin. Then the weight of the three packets were taken by the digital weighing machine, carried by the NCB team and it was found that the weight of the packets, marked as P1 was 1.160 kgs, P2 was 1364kgs and weight of P3 was 1.016kgs., respectively. The total weight of the consignment was 3.540kgs. Then the three packets were again, kept in the respective baggages and the photographs were taken.

3. Further, it is stated that thereafter, a notice u/s 50 of NDPS Act, 1985 were served to both the accused persons and they were also, told that they have the right that search could be conducted by the complainant/ Intelligence Officer, NCB in presence of witness and if required same can be conducted before Gazetted officer or Magistrate. After their consent, the personal search of both the accused persons was conducted but no contraband was found. However, a residentail certificate, a matriculation pass certificate, a train ticket, 02 mobile phones, 02 wallets, one pass book and one airport entry pass were recovered from them. Hence on reasonabl e relief that an offence has been committed u/s 8(c) of NDPS Act, 1985 (as amended), and the entire consignment believed to be heroin and the items recovered from their personal search, were seized u/s 43 of NDPS Act, 1985 (as amended). On the spot questioning, Shiv Kumar Verma told that he was carrying the heroin for Mr. Ganpat Singh, resident of Subhash Nagar, Bareilly and he was directed by Ganpat Singh to go to Dimapur, Nagaland to bring this consignment of heroin alongwith the accused Chandra Pal. He alongwith Chaderpal left Bareilly for on 27.7.14 by bus in the evening and reached Delhi airport at around 0200am on 28.7.14. From Delhi airport, they boarded Indigo flight at 0530 hours and landed at Guwahati airport at around 0800 hours and from there, they went to one Dharmasala at Fancybazar, Guwahati. After that, they boarded BG Express train at around 1430 hours and reached Dimapur and went to stay there at Hotel Kinghfisher. One person reached their hotel room at around 2030 hours and handed over the consignment of heroin in three packets. Then the packets were safely concealed in the false cavity of the trolley bag and the suitcase by Shiv Kumar Verma and Chandra Pal. After that they reached Guwahati railway station on 29.7.14 by purchasing a sleeper class ticket bearing PNR No.6132320614, dated 29.7.14 4 in NE Express train. Further, they informed that Ganpat Singh directed them to get down at and to come to Bareilly by bus and to handover him the consignment of heroin. He also, informed that he alongwith Ganpat Singh had earlier, in the month of June,2014 i.e. on 29.6.14 came to Dimapur to collect the consignment of heroin.

4. Then the NCB team in presence of two independent witnesses and both the accused, drew 03 samples (one from each packet) in duplicate and marked as S1, S2 and S3 as original samples and D1, D2 and D3 as duplicate. All the samples drawn and seized consignment of heroin was sealed with NCB brass seal no.02 and properly labeled and signatures of the independent witnesses and the seizing officer was also, taken. Then the search-cum seizure list and inventory of the seized articles were prepared on the spot. The seizure process was completed at about 1200 hours on 29.7.14 without causing any injury and damage to any property and the copy of search-cum- seizure list was furnished to the accused persons. In the process, 02 mobile phones, 01 residentail certificate of Shiv Kumar Verma, 01 pass certificate of matriculation of Shiv Kumar Verma, 01 train ticket, 02 ATM cards, one pass book of PNB of Chandra Pal, 01 AEP of Chandra Pal and two wallets, containing Rs.300/- and Rs.290/- respectively, were also, seized u/s 43 of NDPS Act, 1985 in presence of witnesses. It is stated that on reasonable belief that Chandra Pal and Shiv Kumar Verma were involved in the illicit trafficking of heroin, a notice u/s 67 of NDPS Act, 1985 (as amended) was issued to the accused, directing them to be present before the seizing officer on 29.7.14 at 1230 hours at NCB office. The whole process of search-cum- seizure was completed at 1200 hours on 29.7.14. on the basis of voluntary statement u/s 67 of NDPS Act, 1985 (as amended) of the accused Chandra Pal and Shiv Kumar Verma regarding their involvement in trafficking of heroin, the accused persons were arrested u/s 43 of NDPS Act on 29.7.14 at 1630 hours for commission of offence u/s 8(c)/29 of NDPS Act and are liable to be punished u/s 21(c) of NDPS Act. All the seized goods and samples were kept in NCB godown on 29.7.14 and the godown in charge had acknowldge the same. The arrested accused were taken to MMC, Guwahati for medical check up on 30.7.14 and as per provision of law, remand petition dated 30.7.14 alongwith the accused persons, seized goods and its samples, were produced before the learned CJM, Kamrup (M) Guwahati. The sample package after 5 endorsement before learned CJM, Kamrup (M) was sent to FSL, Guwahati for chemical examination. The FSL report dated 18.11.14 shows a positive result for Morphine with percentage to be 65.2, and 69 and 75.1 respectively and the residue sample sent back by FSL after examination, was kept in NCB godown. The accused persons were sent to central jail. A letter was written to the Zonal Director, NCB. Lucknow for follow up action of the case on 29.7.14. The reply of the letter was received by this unit dated 1.8.14. Based on the follow up action conducted by the NCB,Lucknow, it came to the notice that the person namely; Ganpat Singh, used to stay on rental basis at H/No.678, Panchalpuri, in front of city railway station, Masid Gali, near office of Touqiu Raza, Dist- Bareilly. According to Smti. Manju Goswami, the owner of the house, Ganpath had left the house about two months back and currently, Ganpath is not residing at her house and she had no knowledge of whereabout of Ganpath. Compliance u/s 67 of NDPS Act, (as amended), addressed to the Zonal Director, NCB, Guwahati dated 30.7.14 is submitted and acknowldge by the Zonal Director, NCB, Guwahati Zonal unit. A letter by post has been written to the Officer-in-charge of Aliganj police station, Dist- Bareilly, intimating the arrest of the accused Chandra Pal and Shiv Kumar Verma. Letters also, wrote to the Superintendent of police, Bareilly, Uttar Pradesh for verification of the accused Chandra Pal and Shiv Kumar Verma but rely was not received. From the above facts and circumstances of the case, it can be established that the accused persons who were arrested with the consignment of morphine, have violated the provision u/s 8(c) of NDPS Act and are liable for punishment prescribed in the said Act. The seized contraband is liable for confiscation u/s 60 of NDPS Act.

5. After receipt of the complaint, a separate sessions NDPS was registered and transferred to this court for its disposal. The accused persons when produced in the court, were furnished with the relevant copies of the case. After hearing of the parties, the charge u/s 21(c)/29 of NDPS Act was framed against the accused persons. The charge so framed, was readover and explained to the accused persons who pleaded not guilty and claimed to be tried.

6. The prosecution during the trial, examined as many as, 5(five) witnesses to support its case. In the statement recorded u/s 313 CrPC.,, the 6 accused persons denied all accusation of the prosecution but declined to adduce any evidence in defence. The argument of the parties was heard at length and perused the evidence on record.

7. POINTS FOR DETERMINATION :

1] Whether on 29/7/14 at platform no.1, Guwahati railway station, the accused persons had in possession of 3.54kg of heroin, contained in three packets, in contravention of the provisions of the NDPS Act, 1985 ;

2] Whether on the same day and place, both the accused persons conspired in furtherance of their common intention to commit the above offence ;

DECISION AND REASON THEREFORE ;

8. To begin with the argument, at first, learned Special Public Prosecutor streneously submitted that on the basis of a specific information which was subsequently, reduced to writing by the Intelligence Officer, NCB, Guwahati to his immediate superitor Officer, and then, the team of the NCB officials went to Guwahati railway station and nabbed the accused persons, carrying the narcotics substances in their baggages, travelled from Dimapur on the way to Uttar Pradesh. He submitted that after service of the notice u/s 50 of NDPS Act, the personal search of the body of the accused persons was conducted by the seizing officer but found no any contraband articles. After search of the personal baggages of the accused persons, all together 3.54kgs of heroin/morphine was recovered which was duly seized u/s 43 of NDPS Act, in presence of independent witnesses and the accused persons after obtaining its samples. It is submitted that thereafter, the statement of the accused persons was recorded under the provisions of section 67 of NDPS Act and accordingly, the accused persons were arrested. He submitted that thus, the case of the prosecution is absolutely proved beyond all reasonable doubt and hence the accused persons are liable to be punished in the light of recovery of commerical quantity of contraband substance in contravention of law. 7

9. Per contra, learned counsel for the accused persons submitted that the prosecution alleged that 3.54kgs of heroin was recovered from the personal baggages of the accused persons but the said baggages did not belong to them since there was no personal name or mark found in the said baggages and therefore, it is not all proved the recovery of the contraband from the accused persons. He submitted that the prosecution failed to produce the seized contraband articles during the trial and thus, without producing the same, the prosecution cannot claim any recovery of contraband articles found in possession of the accused persons. He further submitted that the evidence of two independent witnesses is doubtful since they were procured and no person from railway platform like the shop- keeper, was examined and in fact, there was no reliable independent witness examined by the prosecution. Apart from the seizure of articles was not made in compliance of section 43 of NDPS Act. He pointed out the thumpt impressions in the Ext.2,3 and 4 which were not proved as per law. In addition, Ext.1 was not proved by PW2. He submitted that there is no evidence to show that after seizure of contraband articles, it was kept in official godown since no godown register was produced and proved. Hence the accused persons are entitled to get the benefit of doubt, he maintained.

10. After hearing the contentions of the parties, it is pertinent to go through the evidence on record. It is not in dispute that 3.54kgs of contraband substances like; heroin/morphine was recovered by the NCB officials as claimed by the prosecution. It is also, not denied that the accused persons were nabbed at Guwahati railway station by the NCB officials on the faetful day. The accused persons in their statement after end of the trial, took the plea of simple denial of the incriminating circumstances/evidence appeared against them.

11. The accused persons though, did not raise any controvercy regarding nature of contraband so recovered in the case, the prosecution examined PW2 Sri Gajendra Nath Deka, who is forensic expert of DFS, . So his evidence is taken into consideration before going through evidence of other witnesses of the prosecution. PW2 deposed that on 30/7/14, while he was working as Dy. Director in the drug and narcotics Division, Directorate of FSL, Assam, on that day, he received a parcel through the Director in 8 connection with NCB case no.10/NCB/GHY/2014, consisting of 3 exhibits enclosed in a sealed envelope, the facsimile of the seal was found to be 'Norcotics Control Bureau 02'. The description of articles are- three sealed envelopes marked as S1, S2 and S3 which contained a closed polythene packet, containing 5grams brown coloured powder each. The samples were again, marked by him as DN-240/2014(a) to DN-240/2014(c) respectively. The result of examination- he examined all the samples mentioned above as per the United Nations Drug Testing Laboratory Mannual and getting positive test for morphine. He accordingly, submitted the report that Ext. DN-240/2014 (a) to DN-240/2014 (c) gave positive tests for morphine and the percentage of morphine were found to be 65.2, 69.0 and 75.1 respectively. The report was forwarded to the Zonal Director, NCB, Guwahati Zonal Unit by his then Director, Mr.M.N.Bora. He proved the report vide Ext.17 with the forwarding of the same vide Ext.18.

12. In the cross-examination, PW2 stated that he examined the samples on 10/11/14 and submitted his report on the same day. He stated that his report did not contain the word 'intact' which was missing. He admitted that he did not certify that exhibits received were in good condition for the purpose of chemical examination. Since the parcel stated to be in sealed condition, there cannot be any dispute that the samples carried any defect at the time of handing over to PW2. Any defects PW2 would have noticed in the ehibits, he would have definitely mentioned it. In absence of anything contained in Ext.17, it cannot look the ehibits so received by PW2 was not in good condition. Further, he stated that morphine content in each exhibit, gave different percentage of content due to different amount of morphine in the exhibits and may be due to disproportionate mixing of the substance, while drawing the samples or may be from different sources. Such evidence of PW2 is based on hypothesis or on probability but not from any reliable or concrete source. After overall assessment of the evidence of PW2, it appears that finding of PW2 does not come for any challenge by the defence side.

13. Now, coming to the evidence of other witnesses of the prosecution, it appears that PW1 Suresh Kumar Singh, Intelligence Officer, Narcotic Control Bureau (in short; NCB) Guwahati deposed that on the fateful 9 day, while he was posted in the NCB, Guwahati, his colleague (PW3) Sri P. Biswarjit Singh, Intelligence Officer, NCB, Guwahati, since deceased, received an information that two persons, namely; Shiv Kumar Verma and Chander Pal who about to board North-East Express train from Guwahati to Delhi, carrying a consignment of suspected heroin. After that, the said information was reduced to into writing by PW3 and gave it to Sri Madho Singh, Zonal Director and a team was formed. The team comprised of himself, Sri Sanjay Singh, Intelligence Officer, Sri S.K. Singh, Intelligence Officer, Sri Santu Saha, Intelligence Officer, Sri A.K. Lahon, Intelligence Officer, Sri P. Biswarjit Singh, Intelligence Officer, since deceased, Sri Sandeep kr. Singh, Sepoy, and Sri Vipin Kumar, Sepoy. After getting proper office order, reduced into writing, by the Madho Singh whereby, he was authorised as the seizing officer for any recovery of narcotics drugs and psychotropic substance. He stated that Ext.1 is the copy of the information reduced into writing dated 29//7/14 and the same was incorporated into the NCB-1. Ext.2 is the NCB-1 dated 29/7/14 and Ext.3 the office order dated 29/7/14. After that, the said team started from the NCB office, Guwahati at about 6:00 hours on 29/7/14 and reached Guwahat railway station at about 6:45 hours. After reaching the railway station, the team intimated two persons namely ; Ajit Das and Pranjal Baruah who were standing at the platform no.1 of the railway station and requested them to stand as witness to the search and seizure after revealing the information, the team received. The NCB team started looking for the persons, carrying the suspected heroin in the suitcase and trolley bag. After sometime, the team saw two persons carrying one suitcase and one trolley bag by each person, who were standing at platform no.1 of the railway station and who resembled to their descriptions as per the information. The NCB team went near to the said suspected persons and introduced themselves by them by showing their identity cards. After that two persons introduced themselves as Shiv Kumar Verma and Chander Pal of district– Bareilly, Uttar Pradesh and further revealed that they were coming to board on the North-East Express train from Guwahati to Anand Vihar Terminal. The NCB team searched both the suitcase and trolley bag, carried by them. The NCB team recovered one packet, containing brown colour powder, suspected to be heroin, in a red colour trolley bag and similar, kind of two packets in another suitcase made of orient. The packets were numbered as P-1, P-2 and P-3. All the packets 10 were sealed in false cavities of the suit case and the trolley bag. On asking the accused Shiv Kr. Verma and Chander Pal stated that the trolley bag belonged to Shiv Kr. Verma and the suitcase belonged to to Chander Pal. Then in presence of two independent witnesses and both the suspected persons, the NCB team took out some quantity from the three packets and then, mixing them homogeneously and tested the same with the portable narcotic drugs detection kit. The testing gave positive result for heroin. Thereafter two packets were weighted by the digital weighing machine, which was carried by the NCB team. The weight of the three packets marked as P- 1=1.16kg., P-2=1.364kgs., and P-3=1.016kgs. The total weight of the consignment was 3.54kgs. Then the three packets were kept in the respective bag i.e. B-1 and B-2. After that notices u/s 50 of NDPS Act were served on both the accused persons and they were also, told that their search could be conducted before a Magistrate or a Gazetted Officer. After obtaining consent, the personal search of both the accused persons were done, but no contraband was found, except one residential certificate, one matriculation pass certificate, train tickets, two mobile phones, two wallets, one pass-book and one airport entry pass. Therefore, on reasonable relief that they committed offence u/s 8(c) of NDPS Act, which is punishable u/s 21(c) of NDPS Act, the entire consignment of heroin and the items recovered from both the accused persons, were seized u/s 43 of NDPS Act in presence of the accused persons and the said two independent witnesses vide search cum seizure memo, dated 29/7/14. Ext.4 is the search-cum seizure memo, with his signatures.

14. Further PW1 stated that the copy of seizure memo was also, given to both the accused persons as per procedure. On questioning, the accused Shiv Kr. Verma told him that the said accused was carrying heroin to deliver to one Ganpat Singh, s/o Room Singh, a resident of Green Valley, Subhash Nagar, Bareilly U.P. and also, resided at rented house at Biharipur Dhal near Tokir Raja Office, opposite Bareilly city railway station and in further, revealed that they were directed Ganpat to go to Dimapur, Nagaland to fetch the consignment of heroin alongwith Chander Pal. He alongwith Chander Pal left Bareilly to Delhi, on 27/7/14 by bus, in the evening and reached Delhi airport at 2000 hours on 28/7/14. After that they boarded on eIndigo flight at 530 hours and landed at Guwahati airport at 8000 hours on 11 same day. Thereafter, they went to Dharmasala, Fancybazar, Guwahati and thereafter, they reached Guwahati railway station and then they boarded BG Express at 1430 hours, on 28/7/14 and reached Dimapur and went to stay at hotel Kinghfisher. One person reached their hotel room at around 2030 hours in the evening and handed over the consignment of heroin in three packets. Then the packets were safely concealed in the false cavities of the trolley bag and the suitcase by them. After that they reached Dimapur railway station and boarded the Rajdhani Express bound for Guwahati. After reaching Guwahati railway station on 29/7/14, they purchased sleeper class railway tickets in North-East Express for Anand Vihar. They informed that Ganpat Singh had directed them to get down at Kanpur and then to come to Bareilly by bus and to handover the consignment of heroin and also, informed that the accused accompanied Ganpat earlier in the month of June, 2014 when they visited Dimapur to collect the contraband article. After that the NCB team in presence of two independent witnesses and both the accused persons drew three packet, one from each packet in duplicate and marked as S-1, S-2 and S-3 as original and D-1, D-2 and D-3 as duplicate. All the samples drawn and seized from the consignment of heroin were sealed with NCB seal and properly labelled and signed by two independent witnesses and the seizing officer. The inventory u/s 52-A of NDPS Act and search-cum-seizure list were prepared on the spot and the copies of each were delivered to both the accused persons, obtaining proper ackowledgement receipts. The whole seizure process was completed at 1200 hours on 29/7/14. Ext.5 is the inventory with his signatures. It was prepared in presence of both the accused persons and the independent witnesses which reflected the details of the articles seized.

15. After that the accused persons were served with notices u/s 67 of NDPS Act for recording their statements and Ext.6 and 7 are the copies of the notices serived u/s 67 of NDPS Act. After that the voluntary statement of the accused Shiv Kr. Verma was recorded on 29/7/14 wherein, he confessed his guilt and admitted that he was involved in trafficking of heroin alongwith the accused Chander Pal. Ext.8 is the statement of Shiv Kr. Verma wherein he signed as Ext.8(1),(2) and Ext.8(3) with seal. After that the voluntary statement of the accused Chander Pal was recorded by Sanjay Singh, Intelligence Officer as he could not read his language, he requested 12

Sanjay Singh, Intelligence Officer to record his statement in English and the same was readover to him wherein he also, confessed his guilt and admitted that he alongwith the accused Shiv Kr. Verma was going to Dimapur to collect the consignment. Ext.9 is the statement of accused Chander Pal with his signatures. After that both the accused were arrested at 1630 hours on 29/7/14 at platform no.1, Guwahati railway station for violation of section 8(c) of NDPS Act which is punishable u/s 21(c) of NDPS Act in connection with NCB case no.10/14. Ext.10 is the copy of arrest memo of the accused Shiv Kr. Verma with his signature and Ext.11 is the copy of the arrest memo of accused Chander Pal with his signature.

16. PW1 further stated that after that the NCB team came back to Guwahati office and deposited the seized articles alongwith the samples with the NCB godown on 29/7/14 at 1820 hours. Ext.12 is the godown receiot sezied by Madho Singh. After that, having medical chek up up of both the accused along with the seized articles were produced before the learned CJM, Kamrup (M) Guwahati, on30/7/14. After that, on 30/7/14, the original samples, drawn on 29/7/14, were sent by special massenger to the Chemical Examiner, FSL, Kahilipara, Assam for chemical examination. Ext.13 is the copy of forwarding letter. Ext.14 is the original receipt issued by the FSL< Kahilipara, Assam in connection with NCB Case No.10/14. Ext.15 is the copy of Test memo which was prepared in triplicate. Ext.16 is the compliance report u/s 57 of NDPS Act given to Zonal Director with his signature dated 30/7/14. he handed over the case to his colleague for further course of investigation. He has identified both the accused persons, present in the court.

17. In the cross-examination, PW1 stated that on 29/7/14, he was duly authorised by the Zonal Director of NCB, Guwahati to pursue the secret information. The time of issue of the authority vide Ext.3 is not mentioned therein except the date. The independent witnesses were found at railway station. There is no document to show that he approached the shop-keepers of the place of occurrence to stand as witness to search-cum-seizure, but they refused. The seized trolley bag and the suitcase did not contain any name of the person. The authority letter does not reveal the time of endorsing the authority. Ext.8 was written by the accused Shiv Kr. Verma in 13

Hindi language. He stated that it is a fact that the tnump impression given in Ext.6 and 7 is not endorsed by any person. The search-cum-seizure process started at 0820 hours and completed at around 12:00 pm.

18. PW3 Sri P. Biswarjit Singh, Intelligence Officer, Narcotic Control Bureau ( in short; the NCB) Guwahati deposed that on the fateful day, while he posted at Guwahati office, he after getting information at about 5:00 am., from reliable source that two persons namely; Shiv Kumar Verma and Chander Pal about to board the North-East Express train from Guwahati to Delhi, carrying consignment of suspected heroin, reduced it to into writing and submitted to Sri Madho Singh, Zonal Director. He stated that as per office order, from Zonal Director, dated 29/7/14, a team consisting of himself, Sri Sanjay Singh, Intelligence Officer, Sri Suresh Singh, Intelligence Officer, Sri Santu Saha, Intelligence Officer, Sri A.K. Lahon, Intelligence Officer, and two other staff, proceeded to Guwahati railway station at around 6:00 am., on same day. As per office order, he was appointed as Investigating Officer in case of any recovery of narcotics contraband. He further stated that the team including himself reached the railway station at around 6:45 am. After reaching the railway station, the team intimated two persons who were standing at the railway station at platform no.1 and requested them to stand as independent witnesses in the process of search- cum-seizure. Thereafter the team looked out for the two persons suspected to be carrying heroin in suitcase and trolley bag. After sometime, the team saw two persons, carrying one suitcase and one trolley bag, who were standing at platform no.1 of Guwahati railway station, resembling as per the information. The team with him went near to the said two persons and introduced themselves by showing the identity cards. On request, the two persons introduced themselves as Shiv Kr. Verma and Chander Pal. The accused Shiv Kr. Verma carried the red colour trolley bag and the another accused Chander Pal carried another suitcase. On opening the trolley bag, the team found one packet, containing brown colour powder suspected to be heroin and two packets, containing dark brown colour powder in another suitcase. Thereafter, in presence of two independent witnesses and both the accused, some quantity from the three packets were taken out and then mixing homogeneously, tested the same with the portable narcotics drugs detection kit and found positve test for heroin. Thereafter all the three 14 packets were weighted by the digital weighing machine, which was carried by the NCB team. The total weight of the consignment was 3.54 kg. The samples were done in duplicate in presence of the independent witnesses and both the accused persons. After that notices u/s 50 of NDPS Act were served on both the accused persons. After obtaining the consent, the personal search of both the accused persons were done, but no contraband was found, except one residentail certificate, one matriculation pass certificate, train tickets, two mobile phones, two wallets, one pass-book and one airport entry pass. Thefore, on reasonable belief that, they committed offence u/s 8(c) of NDPS Act which is punishable u/s 21(c) of NDPS Act, the entire consignment of heroin were seized u/s 43 of NDPS Act, 1985, in presence of two independent witnesses and the accused persons. The search- cum-seizure process was completed at around 12:00 noon. After that, both the accused persons were served with notices u/s 67 of NDPS Act for recording their statements and the same was recorded. On the basis of voluntary statements, both the accused were arrested at around 4:30 pm., by the seizing officer (PW1) Sri Suresh Kr. Singh. Thereafter, he alongwith the team returned back to the office alongwith the accused persons and seized materials at around 6:00 pm. After that the seized items were deposited at NCB godown.

19. PW3 further stated that during the investigation, the chemical examination report was requested to expedite to the FSL, Guwahati, issued by him on 17/11/14. Ext.20 is the office copy of report with his signature. As per the FSL report, dated 18/11/14, the sample gave positive result for morphine. On the basis of the FSL report, he submitted a final complaint u/s 36(A)(d) of NDPS Act, for violating the provisions u/s 8(c) of NDPS Act, punishable u/s 21(c) of NDPS Act, against the accused persons. Ext.19 is the final complaint with his signatures. Ext.2 is the NCB-1 with his signature. Ext.1 was forwarding to the Zonal Director, wherein Ext.1(1) is his signature. He recognised the accused persons in the court. Apparently, the cross- examination of PW3 was reserved but unfortunately, PW3 died in the meantime, for which he was not cross-examined.

20. The evidence of PW4 Sri Madho Singh who was then Director of NCB, Guwahati, is that on 29/7/14, he was posted as Zonal Director, NCB, 15

Guwahati Zonal unit and on that day, (PW3)Sri P.B. Singh, Intelligence Officer received an information in writing to me, stating that two persons, carrying a consignment of suspected heroin from North-East Express coming towards Delhi. After getting the same into writing, he directed the seizing officer and other staff to get investigation to be conducted and seized articles. Ext.1 is the hand written information submitted by Sri P.B. Singh, wherein he signed as Ext.1(1). Thereafter, in pursuant to the said information received by him, he issued an office order in which he directed to Sri Suresh Kr. Singh will be seizing officer and Sri P.B. Singh will be the investigating officer in case of recovery of any narcotic drugs & psychotropic substances. Ext.3 is the office order dated 29/7/14 with his signature thereon. In the cross-examination, PW4 stated that he received the information from P.B. Singh.

21. PW5 Sri Sanjay Singh is the Assistant Commissioner, BSF deposed that on 29/7/14, he was posted as Intelligence Officer, NCB, Guwahati Zonal unit and on that day, after getting information from reliable source by Sri Suresh Singh, I.O. That two persons, namely; Shiv Kr. Verma and Chander Pal about to board the North-East Express from Guwahati railway station to Delhi, carrying consignment of suspected heroin, a team of NCB officers was formed and proceeded to Guwahati railway station at around 6:00 hours and reached the said station at around 6:45 hours on 29/7/14. after reaching the Guwahati railway station, the team with him started to search two persons, carrying suspected consignment of heroin in suitcase and trolley bag. After that two persons, carrying one suitcase and one trolley bag by each person were seen who were standing at platform no.1 of Guwahati railway station, resembling to the description as per the secret information. He alongwith the team introduced themselves to them who were standing at the railway station at platform no.1 and requested them on that platform to stand as witnesses in search-cum-seizure process. After intercepting two persons, the NCB team introduced ourselves by showing identiy cards and on being asked, the two persons told their names as Shiv Kr. Verma and Chander Pal. Thereafter the team checked the suitcase and trolley bag and found that one packet, containing brown colour powder suspected to be heroin and two packets containing brown colour powder in another suitcase. Thereafter some quantity from the three packets were taken out and then, mixing homogeneously and tested the same with the portable narcotics drugs 16 detection kit and found positive test for heroin. Thereafter all the three packets were weighted by digital machine which was carried by NCB team. The total weight of the consignment was 3.54kg. The samples were taken in duplicate in presence of independent witnesses and both the accused persons. After that, notices u/s 50 of NDPS Act were served on both the accused and after obtaining their consent, the personal search of both accused were done but no contraband was found from their bodies. After that, both the accused were served with the notices u/s 67 of NDPS Act by the seizing officer Suresh Kr. Singh, I.O. for recording their statements and the same were recorded. All the formalities were completed at around 12:00 noon. After reaching the office, the statement of the accused Shiv Kr. Verma was recorded by Sri Suresh Kr. Singh and the statement of the accused Chander Pal was recorded by him in English and the same was readover to the accused. Ext.7 is the copy of notice issued to the accused Chander Pal dated 29/7/14. Ext.9 is the statement of accused Chander Pal recorded by him with his signature therein.

22. In the cross-examination, PW5 stated that at the railway station, so many shops were found open condition. Mr. Suresh Kr. Singh approached the shop-keepers to stand as witness to the search-cum-seizure, but they refused. At that time, the accused persons were present there. There is no document to show that Suresh Singh approached the shop-keepers of the place of occurrence to stand as witness to search-cum-seizure but they refused. He was present at the time taking smaples. He saw that those samples were tested with the help of naroctic drugs testing kit at the place of occurrence. The samples were kept in three polythene packets in duplicate. He did not know any prescribed manner/ procedure of tying the samples. In all the three samples, in duplicate, containing 5 grams of heroin each. He did not know the name of the godown-keeper. He stated that it is a fact that the accused Chander Pal did not know how to sign as he had no knowledge about Hindi and English, but he can speak Hindi. The thump- impression of the accused Chander Pal was taken by him. The Ext.7 bears the right thump impression of Chander Pal.

23. From the above evidence of the witnesses of the prosecution, it appears that PW3 received the secret information regarding movement of a 17 consignment of heroin by the accused persons from Dimapur by train. The said prior information is required to recorded in writing before forwarding it to his superior officer as required u/s 42 of NDPS Act. Since PW3 is already dead, and as such, the cross-examination so reserved by the defence could not be conducted. His evidence is corroborated by other witnesses of the prosecution side. Hence, his evidence is relevant in the case u/s 32 of Evidence Act since he performed his professional/official duty. PW4 supports the fact that PW3 received the information first and reduced it to writing and forwarded to him.

24. PW4 confirms and proved that Ext.1 which is the secret information so received by PW3, in writing, received by him from PW3 in compliance of law. The evidence of PW1 also, corroborates the above fact with due elaboration. There is no doubt on the basis of above evidence that the said prior information was reduced to writing in compliance of law by the witnesses of the prosecution. So it appears that the said information was received on 29/7/14. The contents of secret information as it traspires from Ext.1 is that two persons namely; Shiv Kr. Verma and Chander Pal were about to board the North-East Express train from Guwahati railway station towards Delhi with a consignment of heroin.

25. It appears that PW4 who was the then, Zonal Director of NCB, Guwahati unit, after received of Ext.1, issued the office order vide Ext.3 on 29/7/14. There is no dispute over issue of Ext.3 by PW4. The contents of Ext.3 discloses the names of PW1, 3 as seizing and investigating officer respectively, to go to the Guwahati railway station with a team of NCB officials to recover any contraband articles. The Ext.3 was issued during routine official process. Hence, it corroborates the fact that PW1, 3 and 5 with other officials of NCB went to the Guwahati railway station. Thus the presence of PW1, 3 and 5 at the place of occurrence affirms by Ext.3.

26. The evidence of PW1, 3 and 5 corroborates each that the members of the NCB team approached two persons present at the railway platform, requesting them to become independent witnesses in case of any recovery with search-cum-seizure of any contraband substances. The names of the said two independent witnesses, stated to be Ajit Das and Pranjal 18

Baruah who apparently, gave consent to the request of the NCB team. But the prosecution failed to examine them both during the trial of the case. Thus the prosecution banks upon entirely on the evidence of official witnesses. If it is presumed that two independent witnesses were picked up from the spot, by the NCB team for the purpose of search-cum-seizure process, now, to go to scrutinse further steps of the case.

27. Going to next steps of the case, the evidence on record shows that the team members spotted the two persons after looking for sometime, standing at the platform no.1 of Guwahati railway station, carrying a suitcase and a trolley bag, and they resembled to the description of Ext.1. Both of them were the accused persons as the evidence discloses. Hence the search- cum-seizure process started therefrom. PW1 was appointed as seizing officer of the case. Initially, the suitcase and the trolley bag of the accused persons were searched by PW1 with his team and recover one packet of brown powder and two packets of similar type of brown powder in the trolley bag. It is correct to say that the said baggage does not contain any name, marked on its body for its identity. But the evidence of PW1, 3 and 5 supports the fact that the suitcase and trolley bag was found with the accused persons. There is no evidence on record that the accused persons immediately, after their introduction to the NCB team, denied to have possessed such suitcase and the trolley bag, containing contraband substances. Hence there is no doubt that the suitcase and the trolley bag, containing contraband substances, belonged to the accused persons.

28. The method of search-cum-seizure and preservation of the samples of the contraband heroin was explained by PW1 in his evidence. It appears that before seizure of contraband, it was tested by drug detection kit and weighted by digital weighing machine so taken by the team of officials of NCB. On perusal of Ext.4- seizure list, it appears that it is proved by PW1. The seizure of contraband articles was made after obtaining the samples of it in duplicate. The samples also, packed and sealed at the spot in presence of the accused persons and two independent witnesses. In the statement of the accused persons recorded u/s 313 CrPC., they never disputed presence of two independent persons at the spot and during search- cum-seizure process. It cannot be disputed that the compliance of section 50 19 of NDPS Act is not important in the case since no contraband article was recovered from persaonal search of both accused persons. It is held in (2014) 6 SCC 664, Krishan Kumar vs. State of Haryana that search of bag carried by accused- compliance of section 50- not required- recovery of contraband from bag in possession of accused, proved by prosecution.

29. Hence, in view of above law, there is no need to comply the provisions u/s 50 of NDPS Act in this case. It is correct to say that the prosecution failed to examined two independent witnesses namely; Ajit Das and Pranjal Barauh. But that does not effect the prosecution adversely since the evidence of official witnesses corroborates and consistant with each other on the material point of the case. From the evidence of PW1, it is also, sufficient enough to show that the said contraband articles in three packets were found from the possession of both accused persons. In the above reference, it was held in (2015) 17 SCC 554, Baldev Singh vs. State of Haryana that there is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however, requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated.

30. After having followed the above law so laid down by Hon'ble Supreme Court, it is necessary to consider the evidence of PW1, 3, 4 and 5 carefully since they are official witnesses of the prosecution. But it appears that their evidence so tendered by them is consistant and agent from every point of view from the movement to search-cum-seizure process and to depost into the official godown for safe custody of the contraband so seized. Hence absence of evidence of independent witnesses does not erode the credibility of the official witnesses of the prosecution. Admittedly, the independent witnesses were not the shop-keeper or other railway official/GRP of the railway platform. But no such shop-keeper or such officials at the railway platform was examined in the case as independent witness. The independent witnesses so examined in the case, stated to be 20 found at the railway platform perhaps, for taking a journey by train. There is hard and fast rule that the shop-keeper or any such officials at railway platform should be made witness in this type of case. It is the prerogative of the prosecution to cite any person as its witness as to its requirement. Hence on such point, it cannot create any doubt over credibility of the prosecution.

31. Apart from above, it is pointed out that the prosecution failed to produce the seized contraband articles during the trial of the case in the court. From the record, it is correct to say that seized contraband are produced in the court in the course of trial. However, it appears from the record that vide order dated 1/7/17, the prosecution was directed to produce the seized materials in the court. But learned defence counsel raised objection regarding production of seized materials in the court on the ground that it was at belated stage and to fill up lacuna. Thus the seized materials were not produced as per order dated 1/7/17. The inspection of seized materials even at belated stage, cannot be termed as filling up lacuna. It is needed to know the way of observing procedure of law by the prosecution. Since the defence raised objection on the above point, as they have no interest to inspect the seized materials and hence, non-production of the seized materials would not prejudice the accused persons and it would not be a ground to discard the prosecution story. Other defects in the case are found to be minor in nature and as such, it does not effect the reliability and credibility of the prosecution case in any manner.

32. Thus from the evidence on record, it makes clear that contraband articles were found from the possession of both the accused persons. In Baldev case (supra), it was held that once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant- accused to prove that he was not in conscious possession of the contraband.

33. The Section 35 of the NDPS Act provides that “(1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had 21 no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-- In this section 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.”

34. If the evidence of the evidence on record is carefully perused, it appears that the contraband articles were found in the bag and the suitcase, carried by both the accused persons and they were about board on a Delhi bound train before being intercepted by the witnesses of the prosecution. It shows that the contraband packets were concealed under false cavities of the bag and suitcase. The accused are not local persons as they are not familiar with the local language, neither they claimed to be temporary settlers of the State. In that case, the accused persons cannot say that they are not aware what was inside their bag and baggages. Thus it appears that the accused persons had full knowledge of contraband kept in their bag and suit case secretly. The seizure of contraband from the possession of both accused, as well as, all the procedural aspects of the case were found to be complied with as per the law and is proved by the witnesses of the prosecution. The evidence of the prosecution witnesses is found to be consistent, cogent and corroborated on each point without any demolition of their credibility. Hence it is presumed that the seized contraband was found from the conscious possession of the accused persons. Both the accused persons with their prior meeting of mind, conspired to carry the contraband articles in thier baggages from one place to another for their illegal gain. The accused persons on the otherhand, failed to discharge of the onus of proof otherwise, which is shifted to them,

35. After considering the entire evidence on record, it appears that the accused persons were found possessing with commercial quantity i.e. 3.54kg. morphine/heroin while carrying in a trolley bag and a suitcase. There is no other view plausible. Hence the prosecution has able to prove its case against the accused persons beyond any shadow of doubt. Accordingly, 22 the aacused persons are found guilty u/s 21(c)/29 of NDPS Act. The accused persons are therefore, convicted u/s 21(c)/29 of NDPS Act. The seized contraband articles shall be destroyed while the other seized articles are found to be personal belongings, shall be returned to the owners.

36. The judgment is pronounced in the open court on this 18th day of November, 2017.

Dictated and corrected by :

Shri C. Das, Addl. Sessions Judge No.1 Addl. Sessions Judge No.1 Kamrup (M) Guwahati Kamrup (M) Guwahati 23

NDPS Case No.7/15

Date 22/11/17;

This order is passed in continuance of judgment dated 18/11/17. Learned Special PP. and learned counsel for the accused persons present. The accused persons are produced from the jail. Heard the accused persons on the point of sentence and their statements are recorded separately annexed to the case record. The accused persons both stated that they have family, consisting of old and ailing parents and children to took after and prayed for leniency as far as their punishment is concerned.

Admittedly, there is no proof of previous conviction against the accused persons. This means that it is the first offence committed by the accused persons. But the offence is serious in nature when it related to commercial quantity of morphine/ heroin so recovered from the accused persons. Such offence is not only harmful to an indiviual, but also, affects the society adversely, as a whole. The recovery of commercial quantity of contraband from the accused persons indicates that they carried and possessed the same for their illegal gain which is harmful to the soceity. Hence the accused persons are liable for punishment as per law. However, the accused persons are found to be fairly young persons.

Accordingly, after considering the age, charecter and antecedent of the accused persons as well as, the nature of quantity of contraband so recovered from them, to meet the ends of justice, the accused persons both are sentenced to rigorous imprisonment for 12 years each with fine of Rs.1,00,000/- each u/s 21(c)/29 of NDPS Act in default, they are to undergo simple imprisonment for one year each.

Furnish free copy of judgment to the accused persons immediately. The seized contraband articles shall be destroyed while the other seized articles shall be returned to the owners as claimed. The period already undergone by the accused persons in jail, is set off. Furnish a copy of the judgment to the District Magistrate, Kamrup (M) Guwahati. 24 NDPS Case No.7/15

Date 22/11/17;

Given under the hand and seal of this court on this 22nd day of November, 2017.

As dictated

Shri C.Das, Addl. Sessions Judge No.1 Kamrup (M) Guwahati 25

APPENDIX :

List of prosecution witness : PW1 ... Suresh Kr. Singh ... seizing officer PW2 ... Gajendra Nath Deka ... FSL expert PW3 ... P. Bishwarjit Singh ... I/O since deceased PW4 ... Madho Singh

List of defence witness : Nil

List of exhibited documents : Ext.1 ... written information Ext.2 ... NCB-1 Ext.3 ... office order Ext.4 ... search-cum-seizure memo Ext.5 ... inventory list Ext.6 ... notice u/s 67 of NDPS Act Ext.7 ... notice u/s 67 of NDPS Act Ext.8 ... statement of accused Shiv Kr. Verma Ext.9 ... statement of accused Chander Pal Ext.10 ... arrest memo of accused Shiv Kr. Verma Ext.11 ... arrest memo of accused Chander Pal Ext.12 ... godown receipt Ext.13 ... forwarding of samples to FSL Ext.14 ... original receipt issued by FSL Ext.15 ... test memo Ext.16 ... compliance report u/s 57 of NDPS Act Ext.17 ... FSL report Ext.18 ... forwarding of Ext.17 Ext.19 ... formal complaint Ext.20 ... request letter to FSL

Addl. Sessions Judge No.1 Kamrup (M) Guwahati