TMI Blog2017 (8) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... different location in that village and is different from the one in which the search was conducted and the contraband was recovered. Thus no interference with the judgment and order of the learned Trial Court is called for. - Criminal Appeal No. 94 of 2017 - - - Dated:- 14-8-2017 - Hitesh Kumar Sarma, J. For the Appellant : Mr. AI Uddin, Ms. R Momtaz, Mr. MA Laskar, Mr. M Ali, Advocates For the Respondent : Mr. SC Keyal, Asst. Solicitor General of India JUDGMENT This appeal, under Section 374(2) of the Cr.P.C., is directed against the judgment and order, dated 24-08-2016, passed by learned Special Judge, Nagaon, in Sessions (NDPS) Case No. 59(N) of 2005, convicting the accused-appellant, under Sections 20(ii)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). to undergo rigorous imprisonment for 10 years and to pay a fine of ₹ 1,00,000/-, in default, to suffer simple imprisonment for 1 year . 2. I have heard Mr. AI Uddin, learned counsel appearing on behalf of accused-appellant and Mr. SC Keyal, learned Assistant Solicitor General of India. 3. The fact of the case is that on 04-09-2003, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court convicted the accused appellant and sentenced him as indicated above. 9. Now, this, Court is to see whether the accused appellant, Md. Abdul Kadir Majumdar was found illegal possession of 5581 kgs of Ganja on 04-09-2003 in contravention of the provision of NDPS Act, punishable under Section 20(b)(ii)(C). 10. The learned counsel for defence, during his argument before this Court, argued only one issue. This is in respect of possession of the seized Ganja by him and recovery of the same. The learned counsel for the accused appellant has strenuously argued that he was not in possession of the seized Ganja and that it was not recovered from his house, as alleged. He has also submitted that the electoral roll, bearing the name of the accused appellant, recovered from the house from where the seized Ganja was recovered, cannot be the basis for arriving at a conclusion that it was his house from where the Ganja, involved in this case, was seized. During the course of argument learned counsel for accused appellant has specifically submitted that this is the only point, which he was pressing before the Court. 11. In view of the above, this Court has decided to confine its di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lodgement of complaint against the accused appellant and others and as such his evidence could not be recorded during trial. 17. PW1, Satyendra Narayan Choudhury, a resident of Chandmari, Guwahati, deposed that about 4/5 years ago, while he was at Nagaon, some officials of Directorate of Revenue Intelligence asked him to accompany them to a nearby place. He accordingly accompanied the Officials to a village where the officials conducted a search in a house and recovered some packets containing ganja. In his cross examination he admitted that he does not know from whose house the ganja was recovered. 18. Coming to the evidence of PW2, Gautam Das, a Senior Intelligence Officer, DRI, deposed that he along with T.K. Dutta (since deceased), Mohendra Dutta, Senior Intelligence Officer, DRI, Sudhir Das, Senior Intelligence Officer, DRI, Uma Shankar Kashyap, Intelligence Officer, Arun Kumar Baruah, Intelligence Officer, along with Officers of Assam Police searched the residence of Abdul Kadir Mazumder, the accused appellant herein. At the time of search, the accused appellant was not present in his house and they learnt that the accused appellant had just left the house along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. 23. I have put emphasis on the expression has reason to believe from personal knowledge or information given by any person and taken in writing that any person as appearing in Section 41(2) of the NDPS Act. Thus, the officials mentioned in Section 41 (2) have been empowered to act even on personal information that if a person is involved in the commission of offence under the NDPS Act, the place where the contraband has been kept can be searched and the person may be arrested. It may be mentioned that Section 41(2) requires such authorisation only if the officer of gazetted rank, as specified in the sub-section, wants any other officer subordinate to him to conduct the search. If the gazetted officer himself is to conduct the search or raid it is unnecessary for him to get any other authorisation from another gazetted officer. The other important aspect of Section 41 (2) is that the record prepared by the Officer, acting under Section 41(2), on getting information regarding the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence. In the instant case, the search was conducted by DRI and not by police. But in my considered view, the position of the DRI Officials as Investigators in this case is same with that of police. 28. Under these circumstances reliance has to be placed only on the oral testimony of the prosecution witnesses. If the evidence of the prosecution witnesses suffers from fatal infirmities the accused appellant will be entitled to an acquittal. 29. It is the contention of the learned Counsel for the accused appellant that prosecution evidence has not been able to prove that the house belonged to the accused appellant and hence, the question of possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused appellant to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused appellant on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused appellant. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 34. As to what would be reasonable doubt has been laconically laid down in the case of K. Gopal Reddy v. State of A.P., reported in (1979) 1 SCC 355, wherein the Hon ble Supreme Court had held that it stems out of the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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