BHAGWAN DASS Vs. STATE

JUDGEMENT

(1.) This appeal arises out of the Judgment and Order dated 14th Oct., 1994 passed by Shri S. K. Ray, Sessions Judge, Andaman & Nicobar Islands at Port Blair in Sessions Case No. 14 of 1993 whereby the appellant was convicted of an offence under Sec. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act and was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2000/ - in default to suffer rigorous imprisonment for two months more.

(2.) The prosecution case, in brief, is that on 10th Nov., 1992 the de facto-complaint Shoukat Hussain (PW.7), Sub-Inspector of Police posted as Station House Officer of Diglipur police station in North Andaman received an information that the appellant/accused Bhagwan Das used to sell Ganja from his own house. On receipt of this information, the defacto-complainant (PW 7) along with three police personnels, namely, N. R. Nair, Head Constable (PW. 2), Kaleshwar Ram, Police Constable (PW. 3) and Subodh Roy, Home Guard (Not examined) and also two local witnesses, namely, Shri M. Manickam (not examined) and Shri Abdul Samad (PW. 1) conducted search of the house of the appellant situated at Diglipur Bazar in presence of the appellant at about 4 PM on the aforesaid date i.e. 10-11-1992, and recovered 50 grams of Ganja in a paper packet kept under the cot of his bed-room. Out of the recovered Ganja, five grams were separated for sample of the spot and the same was packed and sealed separately and the remaining quantity of Ganja along with sample packet was taken into the custody of police as per seizure list prepared and also signed by the witnesses. The appellant was made over a copy of the seizure list in token of which he put his signature thereon. The sample, on being chemically tested, was found to be Ganja. The appellant was found in possession of the aforesaid quantity of Ganja without any permit, licence and authority in contravention of Sec. 8 of the NDPS Act and, accordingly, ne was charged of the offence under Sec. 20(b)(i) of the said Act, to which he pleaded not guilty and contended, inter alia, that he was actually taken in police custody one day earlier i.e. 9-11-1992 and was thereafter taken to the concerned police station, where he was brutally tortured so as to extract confession to which he of-course did not succumb.

(3.) The Trial Court, on appreciation of the evidence on record, accepted the prosecution story in to to and disbelieved the defence version. In the light of the evidence of the Judicial Magistrate (D.W. 2), before whom the appellant had been produced at the initial stage of the proceeding by the defacto-complainant, the Trial Court has of-course taken notice of the fact that as many as five bruises had been found on the person of the appellant by a Medical Officer (not examined), to whom the said Magistrate has entrusted the Medical examination. The complaint case, brought by the appellant against the defacto-complainant was however dismissed under Sec. 203 of the Crimial P.C. The question, which arises in this appeal, is whether the Judgment and order passed by the Trial Court could be sustained, on facts and in law, on the basis of the evidence available on record.