CRIMINAL APPEAL No.870 OF 2009 (DB) Against the judgment of conviction and order of sentence dated 14th July and 18th July, 2009 respectively passed in N.D.P.S. Case No. 41 of 2007 by Sri Chaudhary Brijendra Kumar Roy, 7th Additional Sessions Judge, Muzaffarpur. *********** AMRENDRA KUMAR SINGH SON OF SRI RAGHWENDRA NARAYAN SINGH, RESIDENT OF VILLAGE- PIRARI,P.S.- CHIRAIYA, DISTRICT- EAST CHAMPARAN ……………………………………. ……………………………………. APPELLANT Versus THE UNION OF INDIA ……………………………………………. RESPONDENT **************** For the Appellant :- Mr. Rana Pratap Singh, Sr. Advocate Mr. Rakesh Kumar, Advocate Mr. Aruni Singh, Advocate Mr. Sumant Singh, Advocate Mr. Sandeep Kumar Gautam, Advocate For the Union of India :- Mr. Gopesh Kumar, Advocate ************************* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. The sole appellant has preferred this appeal against the judgment of conviction and order of sentence dated 14.7.2009 and 18.7.2009 respectively passed in N.D.P.S. Case No. 41 of 2007 by the learned 7th Additional Sessions Judge, Muzaffarpur whereby the appellant was found guilty and convicted under Sections 20 (b) ii (c) and Section 29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for 14 years under Sections 20 (b) ii (c) of the Act and to pay a fine of Rs. 1,00,000/- and in default of payment of fine he 2 was further sentenced to undergo simple imprisonment for 2 and 1/2 years and the appellant was further sentenced to undergo rigorous imprisonment for 10 years under Section 29 of the Act and to pay a fine of Rs. 1,00,000 and in default of payment of fine he was further sentenced to undergo simple imprisonment of 2 and 1/2 years. It was ordered that both the sentences shall run concurrently. 2. Prosecution case, as alleged, a complaint petition was filed by the complainant L. D. Rajak (PW 2) alleging therein that the custom officers of Muzaffarpur on a tip off checked one truck bearing registration No. HR- 37A-4698 apprehended near Motipur and recovered 19 plastic sacks filled with Ganja loaded on the truck. The driver and the cleaner fled away after jumping down from the truck taking advantage of the darkness of night and the said truck along with Ganja was brought to the Custom Office and neither certificate of registration nor owner book could be traced out and about 4.60 quintals of Ganja was recovered from the 19 packets and on verification report of the truck procured from the District Transport Office, Motihari confirmed that the vehicle was not registered. No one appeared to claim the contraband or the truck then the seizure was done in presence of two independent witnesses and a test report received from the Government Opium and Alkaloid Works Ghazipur U.P. 3 confirms the sample of the said seized article was Ganja. However, a few photocopies of transfer of ownership related papers i.e. transfer affidavit, form no. 28, 29, 30 and insurance papers were recovered from the seized truck belong to Amrendra Kumar Singh. However, in spite of the raid conducted and summons Amrendra Kumar Singh could not be contacted. His father stated that his son Amrendra Kumar Singh has bad habits and the wife of Amrendra Kumar Singh confirmed the ownership of the seized truck in favour of her husband’s name and described about the driver of said truck as Panditjee but denied to know his name and address and on the basis of complaint the complainant and witnesses were examined and after cognizance the charges were framed. 3. However, during trial eight witnesses were examined. They are Dinesh Kumar (PW 1), Laldeo Rajak (PW 2), Shankar Mahto (PW 3), Shankar Prasad Rai (PW 4), Vinod Prasad Singh (PW 5), Sahdeo Chaudhary (PW 6), Kishore Kumar (PW 7) and Alok Ranjan (PW 8). 4. The defence has also adduced two witnesses. They are Baijnath Singh (DW 1) and Amrendra Kumar Singh (DW 2) the accused himself. 5. The documentary evidences adduced on behalf of the prosecution are the seizure list (Ext.1), signature of L.D. Rajak on the complaint petition (Ext.2), signature of PW 8 on the seizure list (Ext. 2/1), Chemical 4 Examination Report (Ext.3). 6. On consideration of oral & documentary evidence the learned trial Court convicted and sentenced the sole appellant as stated above at the outset. 7. Learned counsel for the appellant however, contended that the ownership of the truck has not been established and further the prosecution has not established that the appellant had knowledge about the contraband on the truck and there is no evidence to suggest that there was any nexus between the appellant and the person who loaded the truck or the appellant had knowledge of the contraband on the truck and further that the truck had been given on contract to one Bhuran Pandey and hence contended that even if the ownership of the truck has been established but the prosecution has not been able to established that the appellant has knowingly allowed any person to use the vehicle for illegal purposes and has relied upon decision reported in (2005) 4 Supreme Court Cases 146 (Balwinder Singh Versus Asstt. Commr. Customs and Central Excise) 8. The learned counsel for the State, however, contended that the prosecution has been able to prove that the truck was loaded with Ganja. The appellant himself has admitted the ownership and hence the appellant had knowledge about the contraband on the truck. 5 9. Hence on the respective submissions of the parties the question for consideration is whether the prosecution has been able to prove the charges beyond all reasonable doubts or not. 10. The case of the prosecution as in the complaint petition that the date of occurrence is of 5.6.2007 at 10 hours, however, there is no mention that 10 hours of the day or night. However, in the body of the complaint petition there is no mention of any time though there is allegation that the complainant is a public servant and during the tip off checked one truck bearing registration no. HR 37A-4798 was apprehended near Motipur and 19 packets of Ganja was recovered from the said truck weighing 4.6 quintals and from the photo copy of the transfer of ownership related paper only found form No. 28, 29, 30 and insurance paper. However, no certificate of registration could be traced out nor the owner book. From the verification report of the DTO, Motihari it was reported that the vehicle has not been registered and further that the sample was sent to Ghazipur, U. P. and the report received shows that it was Ganja. 11. However, in the complaint petition the date and time of occurrence has been stated to be of 5.6.2007 at 10 hours, however, in the charge the time of occurrence has been mentioned to be 3.30 hours. 6 12. PW 1 in his evidence has stated that he at the time of raid was Superintendent in the office of the Custom Department, Muzaffarpur and he was amongst the raiding party which includes L. D. Rajak and others and apprehended a truck at Motipur which was coming from the side of the Motihiar then driver and khalasi fled away and from the truck 19 packets of Ganja was recovered. The truck was taken to the office where the seizure list was prepared and the sample was sent to Chemical Laboratory, Stand Road, Calcutta. The truck is stated to have been purchased from Haryana as apparent from the papers regarding the transfer of the vehicle and one Haraendra Singh of Motihari has purchased the truck. However, in cross-examination he has stated that he was informed about 12 mid night and he proceeded at 2.00 AM and the occurrence had taken place at 3.30 AM i.e. when the truck was apprehended. He has proved the signature on the interrogatories and stated that the accused during answering the questions did not confess his guilt. He has stated that he was the supervisory authority and he had not participated in the investigation. 13. PW 2 L. D. Rajak is the complainant. This witness has supported the prosecution case about the recovery and about the raid after forming a raiding party and reached at place of occurrence at 2.00 AM in the night and apprehended the truck in the night itself and 7 the driver and khalasi fled away. However, he has stated that from the seized truck some papers were found. On the basis of those papers the inquiry was made from the District Transport Authority, Motihari and since the Ganja was recovered from the truck and on this basis itself the owner of the truck was arrested. He has further stated that the said Ganja was covered with a Tripal and further in paragraph 14 of his deposition he has stated that during the investigation none of the witnesses have disclosed that the accused has loaded the Ganja in the said truck or has transported the Ganja. 14. PW 3, however, supported the prosecution case about the apprehension of truck. PW 3 was also the member of the raiding party and stated that when the truck was not stopped on signal then it was chased on which driver and khalasi after leaving the truck fled away. On search 19 packets of Ganja was recovered from the said truck. However, in paragraph 10 of his deposition he has stated that he learnt that the driver of the said truck has loaded Ganja against the will of the owner. 15. PWs 4, 5 and 5 have also supported the prosecution case about the apprehension of the truck and the truck driver and khalasi have been fled away after leaving the truck and on the said truck Ganja was recovered. 16. PW 7 has also supported the prosecution case about the apprehension of the truck and fleeing away of the driver and khalasi and recovery of 19 packets of Ganja weighing 8 about 4.6 quintals. 17. However, it has been stated that three samples of Ganja were taken containing 25 Grams in each packet and hence it is apparent that Ganja was taken from the only one packet and sent to Forensic Science Laboratory. However, PW 1 has stated that the Ganja was sent for chemical test at Chemical Laboratory, Stand Road, Calcutta whereas PW 2 has stated that the said Ganja was sent to Ghajipur, U. P. However, the report has been received from Ghajipur saying that the sample under reference is Ganja. 18. However, the time of occurrence in the complaint petition has been shown to be 10 hours though the charges have been framed for the occurrence taken at 3.30 hours and the witnesses in their depositions have given some variation. PWs 1 and 2 have stated about the time of occurrence as 3.30 hours and reached at the place of occurrence at 2.00 AM in the night but other witnesses have given some variations they stated that they reached at the place of occurrence at about 10 hours or 12.00 mid night and after 1 and 2 hours the occurrence took place. However, the seizure list has been prepared which has been marked as Ext.1 shows that the seizure list was prepared at 10 hours. However, the learned counsel for the appellant has raised the question that there is no evidence that the appellant has knowledge about the Ganja and hence was not in conscious possession. 19. However, the ownership of the truck has not been 9 established but the appellant himself has stated that he owned a truck but denied to have the knowledge of the Ganja being loaded and being carried out or transported to his knowledge. However, DW 1 in his evidence has stated that the appellant has given his truck to Bhuran Pandey @ Ramkant Pandey and Bhuran Pandey at the time of taking the truck made a contract and has proved his signature on the said paper and that paper has also been prepared in the writing of Bhuran and according to him, he is the witness of the said document and thereafter, Bhuran Pandey started the driving of the truck. 20. DW 2 also supported about the preparation of contract paper. However, in cross-examination this witness who is the appellant himself has stated that he has purchased the old truck and its entry in Motihari DTO Office was made but the ownership of the truck was not transferred in his name and has stated that he has made an agreement with Bhuran Pandey. However, from the evidence of this witness it is apparent that the appellant was the owner of the truck and 4.60 quintals of Ganja was recovered from the said truck. However, the question for consideration is that whether the appellant has got knowledge about the ganja or not. However, fact established from the evidence that the truck was apprehended and the driver and khalasi fled away from the said truck and no one was arrested on the spot and from the facts it was ascertained that the truck belongs to the appellant and the appellant himself in his evidence has accepted that the truck belongs to him. 10 21. However, question for consideration whether there is any evidence that the appellant has knowledge of the Ganja on the truck though there is presumption that since the truck belongs to the appellant and hence article seized belongs to him. However, he has given his explanation that the truck has been given to one Bhuran Pandey on contract. However, PW 1 in paragraph 10 of his evidence has stated that the appellant has not accepted his guilt. PW 2 in his evidence has stated that when the Ganja was seized the appellant was not arrested on the spot though the appellant was arrested on the basis that the truck belongs to him or that he is the owner of the truck and investigating officer in paragraph 14 of his evidence has stated that during investigation none of the witnesses disclosed that the appellant was involved in the loading or transporting and hence there is no evidence in the entire evidences of the prosecution that the appellant had got knowledge that the truck was carrying Ganja. Except the presumption that since the truck belongs to him hence the appellant was knowing about the articles being carried on it. However, the appellant has come with the defence that the truck was though belongs to him but the truck was given on contract to one Bhuran Pandey and he had no knowledge about the transportation of the contraband on the said truck and hence the possibility that the Ganja was not with the knowledge of the appellant and there is no investigation on the point when it has come that the appellant was not there at the time of seizure and the appellant has nexus and has knowledge about 11 the Ganja. 22. Learned counsel for the appellant has however, placed reliance on a decision in the case of Balwindra Singh (Supra). However, in the facts and circumstances of the said case the appellant of the said case was found guilty on the ground that he was the registered owner of the vehicle PJA 8677. The counsel for the appellant contended that he purchased the lorry in the year 1982 and in the year 1986 he transferred the vehicle to a third party and the I. O. examined in the said case deposed that during the course of investigation he came to know that though the present appellant was original owner of the vehicle, he had sold the vehicle to one Suchha Singh. However, registration was not changed in his name and the appellant was convicted solely for the reason that he was the registered owner of the vehicle and in that facts and circumstances it was found that there is no evidence to prove that he knowingly allowed any person to use the vehicle for any illegal purposes and since there is also no evidence to prove the conspiracy set up by the prosecution and hence it was held that though the article recovered form the lorry, there is no evidence to show that the appellant had any control over the vehicle nor he was in possession of the said contraband and hence the appeal was allowed and appellant was acquitted. 23. Here in the facts and circumstances of the 12 case at hand quite similar to the fact of the case of Balwindra Singh (Supra) as appellant was not arrested from the truck and the truck was given to Bhuran Pandey and there is no evidence that appellant had knowledge about the said Ganja being carried on the truck and hence taking into consideration the facts and circumstance, we are of the considered opinion that the appellant is entitled to get the benefit of doubts and entitled to be acquitted as the prosecution has not been able to prove the charges beyond all reasonable doubts against the appellant and hence in consequence the judgment and sentence passed by the learned trial court as stated at the out set is set aside and the appeal is allowed. The appellant is in custody, he is directed to be released forth with, if not wanted in any other case. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 29th April, 2010 Avin/N.A.F.R.