P.K. Musahary, J.
1. Heard Mr. A.M. Mazumdar, learned Senior counsel, assisted by Ms. M. Bona, learned Counsel for the appellants. Heard also Mr. D. Das, learned Additional Public Prosecutor, Assam.
2. This appeal is preferred against the judgment and order dated 17-10-2007 passed by learned Sessions Judge, Kamrup in Sessions (Spl), Case No. 8(K)/01 corresponding GR Case No. 3737/2000 arising out of Fatasil Ambari Police Station case No. 121/2000 under Section 20(B) of the NDPS Act sentencing the accused-appellants to undergo rigorous imprisonment for 3 (three) years with a fine of Rs. 5000/- in default of payment of fine, further rigorous imprisonment for another one year.
3. The prosecution case is that, one Shri Ghiridhar, S.I. of Police, Fatasil Ambari lodged an FIR on 12-8-2000 with the O.C. Fatasil Ambari alleging that on 14-6-2000 at about 8.30 a.m., he along with patrolling staff on duty detected 10(ten) kgs of contraband cannabis (ganja) from the possession of the accused-appellants who were carrying the same while travelling in an auto rickshaw bearing registration No. AS-01-F-4988. The aforesaid accused-appellants were the occupants. They were arrested. The said auto rickshaw driver was produced before the Police station. Samples were drawn from the said contraband cannabis (ganja) and sent for chemical analysis. The Police received report of the same, which is positive, and accordingly the aforesaid case, was registered. After completion of the investigation, the police submitted charge-sheet arid charge was framed against the accused-appellant under Section 20(b)(ii)(B) of the NDPS Act, to which they pleaded not guilty and claimed trial.
The prosecution examined in all seven witnesses including the auto rickshaw driver, a Scientific Officer and the informant police officer who claimed to have detected the case and seized the ganja. The defence adduced no witness. After completion of the trial, the learned trial Court convicted and sentenced the accused-appellant as stated earlier.
4. The important witness is P.W. 5, G. Bhuyan, S.I. of police who lodged the FIR. In his deposition, he has maintained the allegation made in the FIR against the accused-appellants. According to him, while on patrolling duty, he intercepted, the aforesaid auto rickshaw in which he found the accused-appellants as occupants and recovered the contraband ganja from the dicky of the said auto rickshaw. In cross-examination, he stated that the contraband ganja was found in one packet. The said accused-appellants were in the auto rickshaw as occupants and he denied suggestion that no packet was recovered from the said auto rickshaw. The other important witness P.W. 7, Arshad Ali, driver of the said Auto Rickshaw. In his examination-in-chief, he stated that on 14-6-2000 he was plying his auto rickshaw from Ambari to Chatribari and two boys signalled near Fatasil to stop the auto rickshaw. Accordingly he stopped his auto rickshaw and three persons boarded the Autorickshaw and told him that they would get down at Batallion. While he was reaching Darapool, his auto rickshaw was intercepted by Police and the said passengers were searched by the police. The police recovered the cannabis. He also stated that the police took him along with his auto rickshaw and aforesaid three occupants to police station where his auto rickshaw was seized along with the contraband ganja. He also stated that he put his signature on the seizure list, Exhibited 1 as a witness. His signatures is marked as Exhibit 1(4).
5. The prosecution examined the seizure witnesses namely, Deepak Biswas as P.W. 1, Ratul Chakraborty as P.W.2, Arshad Ali as P.W. 7. One Samir Das who put his signature on the seizure list as a witness was however not examined by the prosecution. From the deposition of the aforesaid seizure witnesses, PWs. 1, 2 and 7, it is found that they were playing carom board near the place of occurrence, wherefrom they were called by the police and by showing a packet, their signatures were obtained in a piece of paper. But interestingly, the defence declined to cross-examine all these witnesses.
6. After closure of the evidence of prosecution witnesses, the aforesaid accused-appellants were examined under Section 313, Cr.P.C. They have simply denied the allegations made against them.
7. Mr. A.M. Mazumdar, learned Senior counsel for the appellants submits that the seizure of the contraband ganja has not been proved by any reliable evidence. According to him, the prosecution has failed to prove that the ganja recovered from the autorickshaw belonged to the accused-appellants and in that view of the matter the accused-appellants cannot be convicted under Section 20(b)(ii)(B) of the NDPS Act and they are entitled to benefit of doubt and get released on acquittal.
8. Mr. D. Das, learned Additional Public Prosecutor, Assam, on the other hand, submits that the prosecution has been able to prove the case against the accused-appellants beyond all reasonable doubts. The recovery of the packet containing 10 (ten) kgs of contraband ganja has been proved inasmuch as the same was recovered and seized from the aforesaid auto rickshaw in presence of independent witnesses of the locality, one of whom is none other than the auto rickshaw driver himself (P.W. 7). Out of four-seizure list witnesses three have deposed before the Court. They maintained that they have no knowledge of the contents of the packet but they did not deny the fact that they put their signatures on the seizure list. According to Mr. D. Das, learned Additional Public Prosecutor, Assam, it hardly matters because samples of the seizure materials from the said packet were sent to the Forensic Science Laboratory and the report was found positive.
9. I have carefully considered the materials placed before this Court along with the evidence on record. It is an indisputable fact that the packet of ganja was recovered/seized from the auto rickshaw driven by P.W.7. The packet was not carried by anyone of the three occupants while travelling in the said auto rickshaw. It was admittedly found from the dicky of the said auto rickshaw. The seizure witnesses aforesaid did not depose before the Court that the said ganja was, in fact, brought out from the dicky of the-auto rickshaw in their presence. They were simply shown the packet of the ganja and thereafter their signatures were obtained on the seizure list. The evidence is not clear whether the said packet of ganja was recovered from the possession of the accused-appellants.
10. The prosecution did not make any attempt to find out as to whether the aforesaid occupants (accused-appellant) were in conscious possession of the said ganja packet. P.W. 5, the Investigating Officer of the case, in cross-examination by the defence clearly deposed that the ganja was found in a bag kept in the dicky of the autorickshaw. It means that the ganja was not found on personal search of any of the occupants. It also means that the ganja was not recovered from the exclusive possession of any of the occupants.
11. On the Other hand, it could not be understood why the defence declined to cross-examine the aforesaid seizure list witnesses including the auto rickshaw driver to establish their case, if any, that the ganja was not carried by them or they had no conscious possession thereof or the said ganja packet actually belonged to the auto rickshaw driver. The way the defence declined to cross-examine the aforesaid seizure witnesses leaves doubt in the mind of the Court that for some obvious reasons they preferred not to cross-examine the said witnesses. In any view of the matter, the defence has failed to establish its case of innocence and as such it is difficult to interfere with the conclusion arrived at by the learned trial-Court and the conviction and sentence recorded by it. In the aforesaid facts and circumstances and the evidence oh record I dissuade myself from interfering with the impugned judgment and order dated 17-10-2007 in regard to conviction and sentence against the accused-appellants.
12. I have also found that the prosecution failed to establish the vital fact as to whom the seized packet containing the contraband ganja belonged but the conclusion has been made by the learned trial Court against the appellants solely on the basis of recovery made from the said auto rickshaw in which they were travelling. In Ritesh Chakravarty v. State of Madhya Pradesh reported in (2006) 12 SCC 321, it is held by the Apex court that in absence of stricter degree of proof and higher degree of assurance, accused appellant is entitled to benefit of doubt. It is also held that the Court should also take care of the fact that a person may not be convicted on a misguided suspicion. It is observed in the said case that while dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth.
13. In the present case, the doubt as to the ownership of the aforesaid seized contraband ganja has not been removed by adducing cogent and reliable evidence. The doubt still remains and therefore, the accused-appellants are entitled to get the benefit of doubt. As such the impugned judgment and order 17-10-2007 is liable to be set aside and accordingly, the same is set aside.
Appeal stands allowed.
14. The appellants are directed to be set at liberty forthwith, if their further detention is not required in connection with any other case.
15. Lower Court Records be returned forthwith.