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

GUWAHATI

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

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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 Uttar Pradesh, 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

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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 Delhi 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

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in NE Express train. Further, they informed that Ganpat Singh directed them

to get down at Kanpur 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

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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

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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.

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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, Assam.

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

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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

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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

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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

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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

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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

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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