UNION OF INDIA Vs. SHANKAR DEBNATH

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order dated 3-9-2009 passed by the learned Special Judge, NDPS Act, Shillong in Crl. NDPS Case No. 2/2008 acquitting the respondent from the charge of Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substance Act, 1985 ("the Act" for short) for unauthorised transportation of 495 kilograms (a commercial quantity) of ganja in a truck.

(2.) The facts giving rise to this appeal may be noted straightaway. According to the prosecution, on 22-3-2008, a specific information received to the effect that one Tata truck LP (1612) bearing registration number WB- 03-9587 ("the truck")loaded with consignment of ganja concealed under trade goods was on its way to Kolkata via Shillong. This prompted the officials of the Custom Department to keep constant surveillance of the truck on 23-3-2008 along NH-44 and at about 16:30 hours, they intercepted the truck near Mawryngkneng, East Khasi Hills District, Meghalaya. There were three persons on board in the truck. On query, they came to learn from the driver that other persons who were on board were the owner of the truck and the helper of the truck respectively. While scrutinising the document as produced by the driver, the helper of the truck managed to escape from the site in the forested area near the highway under cover of darkness. A massive manhunt was accordingly launched in that forested area, but the helper could not be traced out. Both the truck owner along with the driver were then brought to the Customs Headquarters at Shillong under escort together with the truck and the loaded goods for detailed search, examination and for completing other formalities. On reaching the Customs Headquarters at Shillong at around 8.30 P.M., two independent witnesses were called to witness the search of the truck. The driver of the truck then, in the presence of the truck owner and the independent witnesses, identified and pointed out the exact place where the contraband packages of ganja were concealed beneath the miscellaneous trade goods (scraps). Subsequently, in the presence of the driver, owner of the vehicle and independent witnesses, the goods were unloaded from the truck wherein 13 packages of compressed ganja packed in newspapers and overwrapped by transparent polythene sheets and tied with plastic ropes and repacked in HDPE bags/gunny bags were found concealed beneath the miscellaneous goods (scraps).

(3.) The prosecution case further stated that on 24-3-2008, the officials of the Customs Department further checked the truck in the presence of the driver, owner of the truck and the two independent witnesses to ascertain whether any secret cavity or any false bottom concealment existed inside the truck, but there was none. However, some non-contraband goods were also found inside the truck. Thereafter, the Customs Officers conducted formal process of seizure and other formalities, and weighment of the recovered ganja was done by preparing a weighment sheet wherein the gross and net weight of the ganja of the bags, etc. were detailed. The seized ganja was found to weigh a total of 495 kilograms. Representative samples of the ganja were taken out from the seized 13 packages of ganja, mixed into homogeneous mixture and 4 samples packets of about 24 grams each were made from this mixture and were subsequently put in 4 different polythene pouches and heat seal. The envelopes were then pasted closed and wax-sealed with departmental seal No. "7 CCP NER Shillong" and the four sealed envelopes containing drawn samples were then marked as S-1 (Original), S-1 (Duplicate), S-2(Original) and S-2 (Duplicate), which were signed by Shri Dhruba Kapali, Shri Shankar Debnath, the Seizing Officers and two independent witnesses. The contraband items were then seized from the possession of these two officials. The statement of the respondent and co-accused were recorded under Section 67 of the Act whereafter they were arrested on 24-3-2008 for commission of the offence punishable under Section 20(b) and/or 29(1) of the Act. The sealed envelopes containing ganja samples were sent to the Director, Forensic Science Laboratory, Kahilipara, Government of Assam for testing where it was found to be positive. Ultimately, the case was forwarded to the learned Special Judge, NDPS Act, Shillong for trial. The learned Special Judge thereafter framed the charge against the co-accused under Section 20(b)(ii)(B) of the Act, to which they both pleaded not guilty and claimed to be tried. In the course of trial, as many as fourteen witnesses were examined on behalf of the prosecution while sixty-four numbers of documents, five paper marks and eighteen material exhibits were exhibited to substantiate the charges against the respondent and the co-accused. On completion of the prosecution evidence, they were examined under Section 313 CrPC. At the conclusion of the trial, the trial passed the impugned judgment acquitting the respondent and convicting the co-accused under Section 20(b) of the Act and sentencing him to undergo the imprisonment indicated earlier.