n. d. p. s. case no. 65 of...

N. D. P. S. CASE NO. 65 OF 2013

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE (FTC) NO.

3, KAMRUP (METRO) AT GUWAHATI

Present: Utpal Prasad, AJSAddl. Sessions judge (FTC) No. 3,Kamrup (Metro) at Guwahati

N. D. P. S. CASE NO. 65 OF 2013

[u/s 21 (C) of the Narcotic Drugs and Psychotropic Substances Act]

Union of IndiaRepresented by Sri Nabarun Bhattacharya,Inspector, Anti Smuggling Unit,Guwahati Customs Division,Guwahati… … … … … … … … … … … …Complainant

-Vs-

Shri Litton DuttaAged 42 years,S/o Shri Tapan Chandra Dutta.

Temporary AddressR/o Shri DIganta DuttaItabhata Kalibari Road,Dhirenpara, Guwahati-25

Permanent AddressVillage Kallibari Road,P. O. & P. S. Hojai,District NagaonAssam… … … … … … ... ... ... ... ... ... ... ...Accused

LEARNED ADVOCATES WHO APPEARED FOR THE PARTIES

For the Complainant : Mr. Ritu Raj Baishya, learned Special Public Prosecutor.

of 27

N. D. P. S. CASE NO. 65 OF 2013

For the accused : Mr. H. K. Sharma, Advocate.

Date of submission of offence report : 21.11.2013

Dates of recording of evidence before charge :01.02.2014, 29.03.2014.

Date of framing of charge : 10.04.2014.

Dates of recording of evidence after framing of charge :30.05.2014,31.05.2014, 18.06.2014,

15.07.2014,31.07.2014, 19.08.2014.

Date of recording of statement u/s 313 of the Code of Criminal Procedure : 02.09.2014.

Date of hearing of arguments : 15.11.2014, 25.11.2014.

Date of Judgement : 12.12.2014

J U D G E M E N T

1. The accused Mr. Litton Dutta has been prosecuted in the instant case

on the allegation of illicit trafficking of a Phensedyl Cough Linctus

bottles numbering 5,500 which has Codeine content in the form of

Codeine Phosphate which is a psychotropic substance. The charge

framed against him is u/s 21(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (herein after referred to as 'the Act' for the sake

of brevity). The complainant is the Union of Indian acting through an

Inspector of the Anti Smuggling Unit, Guwahati Customs Division at

Guwahati.

of 27

N. D. P. S. CASE NO. 65 OF 2013

2. Based on a secret information that on 21.05.2013, a truck bearing

registration no. AS-25-B-1986 would be carrying huge quantity of

Phensedyl Cough Linctus Bottles along with consignment of "Ujala

Supreme Liquid Blue" of contents 30 ml. and 75 ml. used for

concealing the packages containing Phensedyl Cough Linctus Bottles,

a team of the Customs Officers constituted and led by its

Superintendent Shri B. P. Jaishi went to the Jalukbari area of Guwahati

City and on reaching Padumbari area near Jalukbari on the National

Highway no. 37, opposite North East Petrol Pump at around 4 A. M. on

21.03.2013 and spotted the truck bearing the aforesaid registration and

saw the driver of the truck, that is, the present accused sitting inside the

truck. As per the version of the complainant, two independent

witnesses were arranged and in their presence, the driver, who

identified himself as Mr. Litton Dutta, told the team of the Customs

officers that he was transporting a load of "Ujala Supreme Liquid

Blue". Finding the description of the truck and the load to be matching

with the secret information P. W. 5 Mr. Rideep Hazarika had received

and after reducing the same into writing had intimated to the aforesaid

Mr. B. P. Jaishi, the team went on to check the load of the truck and

asked the accused to remove the tarpauline which the accused heeded

to and the team, on finding packages containing Phensedyl Cough

Linctus Bottles concealed under the packages containing "Ujala Liquid

Blue" bottles, and on the accused's failure to show any licit documents

of 27

N. D. P. S. CASE NO. 65 OF 2013

justifying the aforesaid consignment, decided to bring the said truck

along with the accused and the independent witnesses to the Customs

Office as the detailed checking of the consignment was not considered

feasible at the place of interception. Accordingly, the accused, the truck

with its load and the two independent witnesses were taken to the

Customs office and on thorough checking of the truck after unloading

it, found 115 packages of which, 37 were found to contain 100 ml.

Phensedyl Cough Linctus Bottles. In all 5,500 bottles of the said

Cough Linctus were found and the remaining 78 packages were found

to contain "Ujala Supreme Liquid Blue" of contents 30 ml. and 75 ml.

Having reasonable belief that transportation of such a huge quantity of

Phensedyl Cough Linctus Bottles, containing Codeine Phosphate in it,

as was evident from the labels of the bottles, was not for any

therapeutic purpose but for drug trafficking, the same were seized.

Samples were drawn from the seized Phensedyl Cough Linctus Bottles

and sent to the FSL for chemical examination which confirmed that the

bottles contained Codeine Phosphate in it, and after due investigation,

the instant complaint was filed before this court in the form of an

offence report. During the process of search and seizure, the truck, its

papers and the load were seized according to the provisions of the Act

and after notice u/s 67 of the Act, the statement of the accused was

recorded and on finding the materials suggesting the involvement of

the accused in the offence alleged, he was formally arrested and

of 27

N. D. P. S. CASE NO. 65 OF 2013

produced before the learned Chief Judicial Magistrate, Kamrup at

Guwahati and was sent to judicial custody. On the basis of the FSL

report and the quantification of the Codeine Phosphate done by it in the

seized 5,500 bottles of Phensedyl Cough Linctus Bottles, it was found

that the offence involved commercial quantity of Codeine Phosphate

and the complaint u/s 21(c) r/w ss. 22/29 of the Act was lodged.

3. After lodgement of the offence report, this court went on to record

evidence before charge and on finding sufficient materials to strongly

suspect commission of offence u/s 21(c) of the Act, framed charges

against the accused Mr. Litton Dutta under the aforesaid provisions. On

charge being read over and explained to the accused, as he pleaded not

guilty and claimed trial, his trial began. The Union of India, in proof of

its case, examined 6 witnesses of whom one is the Deputy Director,

Drugs and Narcotics Division, D. F. S., Assam and one is one of the

two independent witnesses before whom the search and seizure

procedure was completed and the samples for chemical examination

were drawn and sealed. The witnesses were cross-examined on behalf

of the accused and on completion of evidence, statement of the accused

u/s 313 of the Code of Criminal procedure, 1973 was recorded. After

the accused refused to adduce any evidence in rebuttal of the

complainant's case, arguments were heard.

4. The defence taken by the accused is of denial. The accused has taken

the stand that he was arrested from a place named Basistha Chariali

of 27

N. D. P. S. CASE NO. 65 OF 2013

and not from Jalukbari area and that his truck was in fact at the

Basistha area. He has further stated that his truck was empty and that

the Customs officials had picked him up from a Dhaba at Basistha

Chariali on the pretext of questioning him and thereafter, he was falsely

implicated by the Customs Officials. He has stated that nothing was

seized from his truck. He has further stated that his signatures were

taken on blank papers and he had neither made any statement nor had

signed any written piece of paper.

5. At the time of the argument learned counsel for the defence took the

stand of total denial and submitted that the alleged place of

recovery/interception of truck is a hypothetical place and none of the

team members of the Customs Officers had gone there. In line with the

stand taken by the accused in his statement recorded u/s 313 of the

Code of Criminal Procedure, 1973, he has argued that no recovery was

made from the accused and that even it were so, Phensedyl Cough

Linctus not being a totally banned drug, the accused cannot be held

liable under section 21 (C) of the Act. He has further highlighted that

Ext. 4, which is the purported voluntary statement of the accused

cannot be relied on and is a manufactured document inasmuch as the

same was not shown to the learned Chief Judicial Magistrate, Kamrup

at Guwahati which is evidenced from the fact that the said Ext. does

not bear the signature off the learned CJM. He has further stressed on

the point that the Seizing Officer was bound to count the bottles of

of 27

N. D. P. S. CASE NO. 65 OF 2013

Phensedyl Cough Linctus which he did not. It has further been

submitted on behalf of the accused that no formal order appointing the

witness Shri Swapan Kumar Baruah, Inspector, Customs, as a Seizing

Officer was made vitiating the search and seizure. He has placed

reliance on the judgementss of the superior courts in the cases of

Sheikh Mahboob basha Vs. State of A. P. [1998 Crl. L. J. 171 (AP)],

Babu Rao Vs. State of Karnataka [1993 Crl. L. J. 2310 (Kant)],

Balmukund Vs. State [2005 Crl. L. J. NOC 208 (MP)], Union of India

Vs. Balmukund [AIR 2009 SC Supp. 1811], Customs Vs. Yashpal

[2009 Crl. L. J. 2251 SC], Central Bureau of Narcotics Vs. Bahadur

Singh [2011(11) SCALE 195], State of Rajasthan Vs. Gurmail Singh

[2005 Crl. L. J. 1746 (SC)], Directorate of Revenue Intelligence Vs.

Arshad Saleem Khan [2004 Crl. L. J. 4496 Kant.], Md. Ismail Vs. State

of Maharashtra [2003 Crl. L. J. 1324 (Bom.)], Md. Razzak Pathan Vs.

State [1995(1) Crimes 207 (Bom)], Mutlub Khan Vs. State [1993 Crl.

L. J. 3624 (Bom)] and grucharan Singh Vs. State [1993 Crl. L. J. 1622

(Del)]. On the other hand learned Public Prosecutor has submitted that

there was no infirmity in the search and seizure and the defence of total

denial taken stands totally shattered in view of testimony of the

independent witness.

6. From the evidence led by the complainant and the defence pleaded by

the accused, the following points emerge for determination by me:

of 27

N. D. P. S. CASE NO. 65 OF 2013

i. Whether 5,500 no. of Phensedyl Cough Linctus Bottles were seized

from the conscious possession of the accused?

ii. Whether the said Phensedyl Cough Linctus Bottles had codeine

content in the form of Codeine Phosphate and whether the total

Codeine content in the seized bottles was of commercial quantity.

so as to constitute an offence u/s 21(c) of the Act?

iii. Whether the search and seizures made in the case was in accordance

with law and has there been full compliance of the mandatory

provision of the Act and if not, whether the said violation has

resulted in vitiation of the proceeding entitling the accused to an

acquittal?

iv. Whether the Ext. 4, which is the purported voluntary confessional

statement made by the accused can be placed reliance on in the

instant case?

v. What has to be the quantum of punishment to be awarded to the

accused, if at all?

7. For the purpose of finding answers to the above mentioned points for

determination, it is necessary to sift the evidence on record which I am

going to do in the coming paragraphs.

8. Let me take up the fourth point of determination for consideration first

which relates to voluntariness and admissibility of the confessional

statement attributed to the accused.

of 27

N. D. P. S. CASE NO. 65 OF 2013

9. From a reading of section 24 of the Indian Evidence Act it is evident

that a confession made by an accused is rendered irrelevant in criminal

proceeding if the making of the confession appears to the Court to have

been caused by any inducement, threat or promise with reference to the

charge against the accused. A confession, if it is voluntary, truthful,

reliable and beyond reproach, is an efficacious piece of evidence to

establish the guilt of the accused.

10. It is to be noted that though belatedly, the accused has retracted the

alleged confessional statement attributed to him vide Ext. 4. The Ext. 1

purports to have been recorded on 21.05.2013. the record reveals that

the accused along with the inventory of the goods seized and the

samples were produced before the learned Chief Judicial Magistrate,

Kamrup at Guwahati on 22.05.2013. All the papers relating to search

and seizure also bear signature and seal of the learned Chief Judicial

Magistrate dated 22.05.2013. After the accused was produced before

the learned Chief Judicial Magistrate, the accused was remanded to

Judicial custody vide order dated 22.05.2013 passed by the said learned

Magistrate. It is seen that the Ext. 4 does not bear any seal or signature

of the learned Chief Judicial Magistrate, Kamrup at Guwahati which

lends credence to the defence plea that the same was manufactured

later. Irrespective of the ultimate truthfulness of the defence plea in this

regard, the defence has been able to create a reasonable doubt that the

purported voluntary statement was not voluntary. There is no

of 27

N. D. P. S. CASE NO. 65 OF 2013

explanation from the side of the prosecution as to why the Ext. 4 does

not carry the seal and signature of the learned Chief Judicial

Magistrate, Kamrup at Guwahati. It is a settled position of law that

when an accused is made aware of the confession made by him and he

does not make complaint within a reasonable time, same shall be a

relevant factor to adjudge as to whether the confession was voluntary

or not. Even though, a statement made u/s 67 of the Act by an accused

has been held to be admissible, it is trite that while relying on such a

statement courts have to be circumspect and should scrutinise the facts

and circumstances related thereto carefully. The plea of the accused

that he was not in the know of the said Ext. 4 and hence the delay in

retraction of the same cannot, in the circumstances of the case be

brushed aside easily. In the facts and circumstances of the case I am of

the opinion that it would not be safe to rely on the confessional

statements attributed to the accused as its genuineness could not be

proved beyond reasonable doubt by the complainant. The fourth point

of determination is answered in accordance with the above.

11. Moving further, I am taking up the first, the second and the third point

for determination together for convenience.

12. P. W. 1, Shri Swapan Kumar Das has deposed in his evidence that on

21.05.2013 an information was received by the Inspector Rideep

Hazarika (P. W. 5) that huge number of Phensedyl Cough Linctus

Bottles would be carried unauthorisedly in a 709 truck bearing

of 27

N. D. P. S. CASE NO. 65 OF 2013

registration no. AS-25-B-1986 somewhere near Jalukbari in the

Guwahati City concealed in packages of "Ujala Supreme Liquid Blue"

and the same was reduced into writing by the said Shri Rideep

Hazarika vide Ext. 1 and was intimated to the Superintendent of

Customs, Shri B. P. Jaishi. who had then instructed this P. W. to reach

the office. It is the stand of the said P. W. that vide an endorsement on

Ext. 1 which has been exhibited as Ext. 1(1), the Superintendent Shri

B. P. Jaishi had instructed him to take necessary action for execution of

the information received by Shri Rideep Hazarika and reduced into

writing vide Ext. 1. Being thus authorised, he proceeded to the place of

occurrence along with the team of Customs Officers constituted by

Shri Jaishi and all of them were led by the said Shri Jaishi. It is the case

of this P. W. that he was authorised to be the searching and seizing

officer in the case after reaching the place of occurrence, any recovery

was made as informed. During cross-examination of the P. W. 1,

defence has been taken that Ext. 1 is not the first written record of the

secret information received but was only an intimation to the

Superintendent that such an information was received. This is in order

to stress that the mandate of reducing the information received into

writing as enjoined in section 42(1) of the Act has not been followed.

This court does not find the plea impressive inasmuch as the provisions

of section 41(1) of the Act do not prescribe any form of reducing the

secret information into writing and does not insist that the first record

of 27

N. D. P. S. CASE NO. 65 OF 2013

of such an information into writing and the intimation to the superior

officer have to be two different documents. Likewise, it also does not

insist that search authorisation by the superior officer has to be a in a

definite form and cannot be in the form of an endorsement on the

written record of the secret information. What is required is the clarity

in their content so that no doubt remains if indeed any such

authorisation was given. The accused has not questioned the legal

implication of the endorsement made and exhibited as Ext. 1(1) nor has

he questioned the genuineness of the Ext. 1. Further, the P. W. 5, who is

stated to have received the secret information, has corroborated him in

all the material particulars. He corroborates him with regards the

contents of the information received, reduction of the same into writing

and intimation of the same to the Superior Officer (P. W. 6). P. W. 6 has

also corroborated him in all the material particulars and has identified

the Ext. 1 as the document that was forwarded to him and Ext. 1(1) as

the endorsement he made to authorise the P. W. 1 to conduct the search

and seizure operation. Similar defence has been taken during his cross-

examination which, as already stated, does not carry much weight. As

such, it is held that this part of the requirement as envisaged under

sections 42(1) and 41(2) were scrupulously followed in the case.

13. Now coming on to the incident of actual search and seizure, it is to be

noted at the outset that the case of the complainant is not that the

alleged seizure of the contraband was from personal search of the

of 27

N. D. P. S. CASE NO. 65 OF 2013

accused. Rather the case is that the alleged seizure was made from the

truck in custody and control of the accused. Needless it is, therefore, to

say, that requirements of section 50 of the Act do not apply so far as the

seizure from the truck is concerned.

P. W. 1 has stated in his testimony that the team of officers comprising

him, Mr. Rieep Hazarika (P. W. 5), Mr. Bhabataran Basumatary led by

the Superintendent Shri B. P. Jaishi (P. W. 6) reached the Jalukbari area

on 21.05.2013 and kept a vigil in and around the said area and at

around 4 A. M. they saw the truck bearing registration no. AS-25-B-

1986 being parked on the National Highway no. 37 in front of a petrol

pump with the driver of the said truck sitting in the driver’s seat. On

enquiry, the driver introduced himself as Litton Dutta and said that he

was carrying a consignment of “Ujala Liquid Blue”. In presence of two

independent witnesses, the accused himself removed a portion of the

tarpaulin and the team of officers checked the contents of the some of

the packages. On checking it was found that the packets on the top

contained “Ujala Supreme Liquid Blue” and the lower packages

contained Phensedyl Cough Linctus pet bottles (plastic bottles). This

witness further states that as the accused could not produce any licit

document justifying the possession of the goods loaded in his truck

including the Phensedyl consignment, the team took possession of the

truck along with the goods loaded therein and brought the truck to the

Divisional Office situated at Nilamani Phukan Path, Christan Basti,

of 27

N. D. P. S. CASE NO. 65 OF 2013

Guwahati for a thorough examination of the goods loaded along with

the two independent witnesses. On thorough examination 115 packages

were found out of which 37 packages contained Phensedyl Cough

Linctus pet bottles and remaining 78 packages contained “Ujala

Supreme Liquid Blue”. Out of the 37 packages containing Phensedyl

Cough Linctus pet bottles, 36 packages contained three cartons of 50

bottles of 100 ml. Phensedyl each and one package contained two

cartons of 50 bottles each of 100 ml of Phensedyl and in this way 5500

bottles of 100 ml. of Phensedyl Cough Linctus were recovered in all.

This whole process of the examination was done in presence of the two

independent witnesses and the accused Shri Litton Dutta and the

recovered goods along with the documents related to the truck were

seized and Inventory (seizure list) prepared. This witness further states

that the label of the seized Phensedyl Cough Lictus bottles revealed

that it contained Codeine in the form of Codeine Phosphate. He has

identified the Inventory as Ext. 2 and Exts. 2(1), 2(2) and 2(3) as his

signatures thereon. He has further stated that samples in duplicate were

drawn from the seized quantity of Phensedyl Cough linctus bottles in

presence of the two independent witnesses and the accused for testing

in Govt. Laboratory and signatures of these three persons were taken

on the sealed packets of the samples and he also put his signatures

thereon. All the packets containing Phensedyl syrup were sealed

similarly. During cross-examination of the P. W. 1, suggestion has been

of 27

N. D. P. S. CASE NO. 65 OF 2013

given that the accused had given the documents justifying load of

packages of "Ujalaa Supreme Liquid Blue" but was deliberately

suppressed by this witness and not reflected in the Ext. 2 which has

been denied by the witness. Be that as it may, while this plea of the

defence negates his plea taken during the examination u/s 313 of the

Code of Criminal Procedure, 1908 that the truck was empty and not at

all loaded, it also does not help the accused in justifying that no

Phensedyl Cough Linctus bottle was found in his truck. The accused

has not denied that the truck was his and that he was in custody of the

truck at the relevant time. This witness is corroborated in this regard by

the independent witness Shri Kamal Dutta who deposed in this case as

P. W. 4. He has deposed that from the truck Phensedyl bottles were

recovered and he had accompanied the truck and the Customs officials

from the petrol pump at Jalukbari to the their office somewhere at

Christan Basti. He has also confirmed that the accused was also with

him. He has identified the Inventory as Ext. 2 and his signatures as

witness thereto as Exts. 2(4), 2(5) and 2(6). During cross-examination,

he has stated that he was shown the contents loaded in the truck at the

place of interception. It has been suggested on behalf of the accused

that this witness had put his signature on Ext. 2 at the place of

interception and not at the custom Office. This again negates the stand

taken by the accused that he and his truck was apprehended from some

where near a dhaba in Basistha, Guwahati. He has further stated that he

of 27

N. D. P. S. CASE NO. 65 OF 2013

was told by the custom officers that there were almost 5000 bottles of

Phensedyl found on the truck. While arguing the case for the accused,

learned defence counsel has submitted that as this witness has stated

that there were 5000 bottles of Phensedyl Cough Linctus, the case

against the accused should not be taken as that of a commercial

quantity. In the alternative, he has argued this to be a material

contradiction in the stand of the complainant and has cited it to be a

circumstance that should go against the complainant. It is trite that

examination-in-chief of a witness is mainly to test the veracity and not

his memory. It is true that a faded memory can give rise to variance in

the story told from the incident that might have actually happened

creating doubts about the correctness of the version given in court, the

same cannot be taken to be the case here as this witness is a witness of

recovery and seizure and when he has corroborated the version of story

told by the complainant and has confirmed that he was present during

the said procedure and saw that the truck contained Phensedyl Cough

Linctus bottles and has identified the accused as the same person who

was the driver of the truck from which the contraband was recovered,

the variation in the number of bottles of contraband seized in his

testimony does not at all go to help the accused. It is to be noted that

this witness has confirmed during cross-examination that he was

shown the load of the truck at the place of interception which,

according to him, was near the petrol pump at Jalukbari. During the

of 27

N. D. P. S. CASE NO. 65 OF 2013

cross-examination of this witness as well as that of the P. W. 5, it has

not been the stand of the accused that the truck was taken from a place

near some dhaba at Basistha, Guwahati and not from near the petrol

pump at Jalukbari. P. W. 6 has corroborated the P. W. 1, P. W. 4 and P.

W. 5 in all material particulars and his testimony could not be

impeached by the accused in respect of any material particular.

Learned counsel for the accused has pointed out that P. W. 6 stated in

his testimony that Mr. Nabarun Bhattacharya was also in the team of

officers that intercepted the truck concerned and recovered the

contraband while Mr. Nabarun Bhattacharya, deposing as P. W. 2 has

stated that he was not a member of he said team on the day of

interception of the truck and the alleged consequent recovery of

contraband. On the basis of this contradiction, learned defence counsel

has submitted that P. W. 6 must not have been the member of the team

that had intercepted the truck. However, this does not go to the extent

of destroying the complainant's case inasmuch as presence or absence

of this witness neither adds to nor subtract from the legal sustainability

of the search and seizure procedure. It is so because the complainant's

case not being based on recovery of contraband from personal seizure,

presence of gazetted officer was not a sine qua non for its legal

validity. It has already been held that the search authorisation given to

the P. W. 1 was valid and suffered from no illegality. While cross-

examining the P. W. 6, it has been stressed on behalf of the accused that

of 27

N. D. P. S. CASE NO. 65 OF 2013

proof of compliance of section 57 of the Act was not filed in the case

inasmuch as no proof of sending of the information regarding arrest

and seizure to the superior officer has been filed. It has been suggested

that the Ext. 5 was manufactured later to complete the paper formality

as the same was actually not sent to the superior officer. In State of

Punjab v. Balbir Singh, [(1994) 3 SCC 299], the Honourable Supreme

Court held that the provisions of Sections 52 and 57 which deal with

the steps to be taken by the officers after making arrest or seizure

under Sections 41 to 44 are by themselves not mandatory.

Further, the Honourable Supreme Court, while dealing with section

52A of the Act, in the case of State of Punjab Vs. Makhan

Chand[ (2004) 3 SCC 453], stated as follows:

"Learned counsel for the respondent-accused relied on certain

standing orders and standing instructions issued by the Central

Government under Section 52-A(l) which require a particular

procedure to be followed for drawing of samples and contended that

since this procedure had not been followed, the entire trial was

vitiated.

10. This contention too has no substance for two reasons. Firstly,

Section 52-A, as the marginal note indicates, deals with "disposal of

seized narcotic drugs and psychotropic substances". Under sub-section

(1), the Central Government, by a notification in the Official Gazette,

of 27

N. D. P. S. CASE NO. 65 OF 2013

is empowered to specify certain narcotic drugs or psychotropic

substances, having regard to the hazardous nature, vulnerability to

theft, substitution, constraints of proper storage space and such other

relevant considerations, so that even if they are material objects seized

in a criminal case, they could be disposed of after following the

procedure prescribed in sub-sections (2) and (3). If the procedure

prescribed in sub-sections (2) and (3) of Section 52-A is complied with

and upon an application, the Magistrate issues the certificate

contemplated by sub-section (2), then sub-section (4) provides that,

notwithstanding anything to the contrary contained in the Indian

Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such

inventory, photographs of narcotic drugs or substances and any list of

samples drawn under sub-section (2) of Section 52-A as certified by

the Magistrate, would be treated as primary evidence in respect of the

offence. Therefore, Section 52-A(l) does not empower the Central

Government to lay down the procedure for search of an accused, but

only deals with the disposal of seized narcotic drugs and psychotropic

substances.

11. Secondly, when the very same Standing Orders came up for

consideration in Khet Singh v. Union of India this Court took the view

that they are merely intended to guide the officers to see that a fair

procedure is adopted by the officer in charge of the investigation. It

was also held that they were not inexorable rules as there could be

of 27

N. D. P. S. CASE NO. 65 OF 2013

circumstances in which it may not be possible for the seizing officer to

prepare the mahazar at the spot, if it is a chance recovery, where the

officer may not have the facility to prepare the seizure mahazar at the

spot itself. Hence, we do not find any substance in this contention."

It is clear that extraction of admission during cross-examination of P.

W. 6 that Ext. 2 does not carry his certificate in accordance with

section 52 A of the Act does not avail to the accused.

14. P. W. 1 has further deposed that seized goods were deposited in the

Divisional go down on 22.05.2013 vide go down register no. 02/13-

14(NARC) dated 22.05.2013 against the acknowledgement by the

Inspector, Disposal unit, Guwahati Customs Division. He has identified

Ext. 3 as the go down receipt issued by the Superintendent go down,

Customs Divisional office, Guwahati and has identified Ext. 3(1) as the

signature of Dr. Satyen Roy, the Superintendent, godown, Customs

Divisional office. This part of the testimony has not been questioned in

the cross-examination. During re-examination, as allowed by this

court, P. W. 1 has stated that out of the two samples drawn from the

seized Phensedyl bottles, one was sent to the FSL for testing and

quantification of Codeine Content and after examination, the FSL gave

its report and returned the residue sample to the Customs Department.

He has exhibited the residue sample as Material Ext. 1. During cross-

examination the accused has not taken the stand that the sample packet

does not bear his signature or that of the witnesses though he has

of 27

N. D. P. S. CASE NO. 65 OF 2013

pointed out that the sample bottles do not bear his or the witnesses'

signatures. From the observation recorded during production of

Material Ext. 1 it is clear that learned counsel for the accused was

satisfied of intactness of the seal of the FSL which means that the same

was not tampered with after being received from the FSL. The P. W. 3,

who happens to be the Deputy Director, Drugs and Narcotics Division,

Directorate of Forensic Sciences, Assam and who tested the sample

sent in connection with the instant case, has deposed that he received a

parcel in connection with Customs Case no.

02/CL/NARC/AS/GAU/133-14 dated 21.05.2013 and that the same

consisted of two exhibits in sealed envelope with facsimile of tthe seal

being "A. S. UNIT, CUSTOMS DIV. GHY". He has deposed that he

was sent two bottles of liquid branded as "Phensedyl". On chemical

examination, he has stated that he found that the liquids in both the two

bottles contained Codeine in the form of Codeine Phosphate and the

Codeine Phosphate in each of the two bottles was found to be 190.96

mg. He has identified his reported submitted in the case as Ext. 10 and

Ext. 10(1) thereon as his signature. He has deposed that Ext. 10 was

forwarded to the Superintendent, Customs by the Director-in-charge

Shri M. N. Bora vide Ext. 11 with Ext. 11(1) thereon as his signature.

In cross-examination, he has denied that the content of Codeine

Phosphate varies from bottle to bottle even if manufactured by the

same manufacturer though he has admitted that the percentage content

of 27

N. D. P. S. CASE NO. 65 OF 2013

may vary in products of different manufacturers. The defence has

suggested that there was malfunction in the testing equipment which

has denied by the P. W. 3. However, in absence of any evidence from

the defence, this carries not evidential weight.

Plea taken by the defence that the no. of bottles of the said contraband

was not 5,500 has already been negated. As this has not been disputed

that all the bottles of Phensedyl Cough Syrup contained 100 ml. and it

is nobody's case that the bottles seized were of different manufacturers,

the total quantification of Codeine Phosphate is found to be 1.05

kilogram which is a commercial quantity. This has been confirmed by

the P. W. 2 who is the Investigating officer. Though during cross-

examination of P. W. 6 the defence has taken the plea that P. W. 2 was

not formally authorised to investigate into the case, while cross-

examining this witness, no such plea has been taken and his right and

authority to investigate into the case has not been challenged.

15. The circumstance as narrated above, in which the seized Phensedyl

Cough Linctus bottles were recovered, leaves no manner of doubt that

the accused was in conscious possession thereof.

The above conclusion is fortified by the presumption of culpable

mental state as laid down in section 35 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 which reads as follows:

"35. Presumption of culpable mental state:

of 27

N. D. P. S. CASE NO. 65 OF 2013

(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 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."

Further, section 54 of the Act states as follows:

"54. Presumption from possession of illicit articles:

In trials under this Act, it may be presumed, unless and until the

contrary is proved, that the accused has committed an offence under

this Act in respect of:

(a) Any narcotic drug or psychotropic substance or controlled

substance;

(b) Any opium poppy, cannabis plant or coca plant growing on any

land which he has cultivated;

of 27

N. D. P. S. CASE NO. 65 OF 2013

(c) Any apparatus specially designed or any group of utensils specially

adopted for the manufacture of any narcotic drug or psychotropic

substance or controlled substance; or

(d) Any materials which have undergone any process towards the

manufacture of a narcotic drug or psychotropic substance or

controlled substance, or any residue left of the materials from which

any narcotic drug or psychotropic substance or controlled substance

has been manufactured, for the possession of which he fails to account

satisfactorily."

Dealing with the aforesaid provisions, the Honourable Supreme Court

of India, in the case of Dharampal Singh Vs. State of Punjab as

reported in (2010) 9 SCC 608, has stated as follows:

"From a plain reading of the aforesaid it is evident that it creates a

legal fiction and presumes the person in possession of illicit articles to

have committed the offence in case he fails to account for the

possession satisfactorily. Possession is a mental state and Section 35

of the Act gives statutory recognition to culpable mental state. It

includes knowledge of fact. The possession, therefore, has to be

understood in the context thereof and when tested on this anvil, we find

that the appellants have not been able to account for satisfactorily the

possession of opium.

of 27

N. D. P. S. CASE NO. 65 OF 2013

16. Once possession is established the Court can presume that the

accused had culpable mental state and have committed the offence. In

somewhat similar facts this Court had the occasion to consider this

question in the case of Madan Lal and another vs. State of H.P., 2003

(7) SCC 465, wherein it has been held as follows:

"26. Once possession is established, the person who claims that it was

not a conscious possession has to establish it, because how he came to

be in possession is within his special knowledge. Section 35 of the Act

gives a statutory recognition of this position because of the

presumption available in law. Similar is the position in terms of

Section 54 where also presumption is available to be drawn from

possession of illicit articles."

In the factual scenario of the present case, not only possession but

conscious possession has been established. It has not been shown by

the accused- appellants that the possession was not conscious in the

logical background of Sections 35 and 54 of the Act."

Under the relevant rules, a quantity of 1 kilogram or above of Codeine

is a commercial quantity. Codeine Phosphate being one of the salts of

Codeine, the same applies to it as well. Ext. 2 clearly indicates that the

no. of the seized 5,500 bottles of Phensedyl Cough Linctus bottles of

100 ml. capacity each were recovered from the accused and this means

that the total Codeine Phosphate being carried by the accused was 1.05

of 27

N. D. P. S. CASE NO. 65 OF 2013

kilogram. As has already been stated, as examination of a witness is not

a memory test and is in fact a veracity test, the statement of P. W. 4 that

no. of such bottles were around 5000 does no go help the accused. As

such, it is held that the seized quantity was a commercial quantity

bringing the offence punishable u/s 21 (c) of the Act.

16.Based on the discussions and findings as above, the first, the second

and the third points for determination are answered in the affirmative

and against the accused. Accordingly, the accused Shri Litton Dutta is

held guilty of offence u/s. 21(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 and is convicted thereunder.

As the minimum punishment provided for an offence u/s 21(c) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 is rigourous

imprisonment for a term not less than ten years and a fine of not less

than Rs. one lakh, and as I see no reason to impose a higher

punishment to the convicted accused Shri Litton Dutta, I do not

consider it necessary to give him an opportunity of being heard on

point of sentence. Accordingly, I sentence the accused Shri Litton

Dutta to undergo rigorous imprisonment for 10 (ten) years and also to

pay a fine of Rs. 1,00,000/- (Rupees One Lakh). In default of payment

of the said fine, the accused shall undergo further rigorous

imprisonment for six months.

of 27

N. D. P. S. CASE NO. 65 OF 2013

17.Seized articles, if any, be confiscated to the state and

destroyed/disposed of in due course in accordance with the provisions

of the Narcotic Drugs and Psychotropic Substances Act, 1985.

18.Let a warrant of commitment of the accused to jail for serving the

sentence imposed hereby be issued to the Superintendent, Central Jail

at Guwahati.

19.The period of detention already undergone by the accused shall be set-

off against the term of imprisonment imposed on him in accordance

with the provisions of section 428 of the Code of Criminal Procedure,

1973.

20.Let a copy of this judgement be given free of cost immediately to the

convicted accused Shri Litton Dutta. Let a copy of this judgement be

also forwarded to the learned District Magistrate, Kamrup

(Metropolitan) at Guwahati under the provisions of section 365 of the

Code of Criminal Procedure, 1973.

Given under my hand and seal of this court on this the 12th day of

December, 2014.

Addl. Sessions Judge (FTC) No. 3 Kamrup (Metro) at Guwahati

of 27

n. d. p. s. case no. 65 of...

Documents