Crl.A. 143/2009 BEFORE THE HON’BLE MR. JUSTICE H. BARUAH J U D G M E N T AND O R D E R In challenge is the judgment and order of conviction and sentenc e dated 13-07-2009 passed by learned Special Judge, Kokrajhar in Special Case No . 5 of 2006 whereby and whereunder appellants namely, Sri Ramesh Sahu and Sri Ha rjeet Singh were convicted under Section 20(b)(ii)(C) of Narcotic Drugs and Psyc hotropic Substances Act, 1985 (for short NDPS Act) and sentenced to suffer R. I for 10(ten) years and fine of Rs. 1 Lakh in default to suffer R/I for 2(two) yea rs each. The period of detention of the appellants in custody during investigati on/trial was directed to be set off from the substantive sentence of imprisonmen t. 2. The impugned judgment and order of conviction and sentence is ch allenged by the appellants primarily on the following grounds: (1) that the learned Trial Court committed grave error in law as well as on facts while convicting the appellants under Section 20(b)(ii)(C) without appreci ating the evidence of record both oral and documentary in its proper perspectiv e; (2) that the learned Trial Court wrongly convicted the appellants holding th at they were in conscious possession of the seized Ganja kept in the secret cham ber of the truck. The learned Trial Court while holding as such failed to consid er the status and position of the appellants and also overlooked the ownership o f the vehicle in whose secret chamber the Ganja had been kept concealed. Appella nts being the driver and the cleaner of the truck in the circumstances of fact o f concealment of the Ganja in its secret chamber cannot lead any inference that the appellants had the conscious possession of the seized Ganja; (3) That the provision of Section 52A(2)(a)(b) and (c) of the NDPS Act have not been followed which cast a mandate on the part of the prosecution to prepare an inventory of the articles seized from the persons concerned which has to be certified by a Magistrate and photographs taken of the seized articles in connec tion of the case. The samples so taken for the purpose of sending the same to th e laboratory for chemical analysis were not taken before a Magistrate. Prosecuti on also failed to comply with the provisions of the section for not obtaining a certificate from the Magistrate in regard to the seizure of the contraband from the possession of the appellants; (4) that the learned Trial Court also failed to take into consideration rega rding non-compliance of provision of Section 42 of the NDPS Act which mandates r ecording the grounds for believing the possession of the psychotropic substance and also for sending information to the superior officer immediately; and (5) That the learned Trial Court also failed to consider the factum of delay in sending the sample to the Forensic Science Laboratory (for short FSL) for an alysis and report. 3. Before entering into the merit of this appeal it would be apposi te for this court to place the case of the prosecution for the purpose of apprec iation of the facts and evidence on record in regard to the seizure of Ganja fro m the truck kept concealed in a secret chamber. Appellant Ramesh Sahu was the driver of the truck bearing regist ration No. AS-09-A-1135 while appellant Harjeet Singh was the cleaner of the sai d truck. On 28-3-2006 when the truck as indicated above loaded with coke entered into Assam through Srirampur Entry Gate, Inspector of Excise Sri M.M. Mushahary stopped the truck at the check gate for routine checking. While checking 52 pac kets of suspected Ganja weighing 527.500 kilograms were discovered in a secret c hamber of the truck and seized the same along with vehicle. The driver and the c leaner of the truck named hereinbefore were also arrested by Sri M. M. Mushahar y. The seized Ganja, the seized truck along with arrested appellants were produc ed before the court of Special Judge, Kokrajhar, who remanded the appellants to jail custody. Samples were drawn from the seized suspected Ganja and sent the sa me to the chemical examiner for analysis and report. Inspector of Excise, Sri M. M. Mushahary after obtaining the necessary report from the chemical examiner su bmitted offence report against the appellants before the learned Special Judge, Kokrajhar. The learned Special Judge, Kokrajhar having found prima facie case ag ainst the appellants framed charge under section 20(b)(ii)(C) to which they plea ded not guilty when read over and explained. Both the appellants claimed their t rial. 4. Prosecution examined 6(six) witnesses in all. Appellants were ex amined under Section 313 of the Cr. P.C. The trial court after meticulous consid eration of the facts and evidence on record both oral and documentary by the imp ugned judgment and order convicted the appellants under the charge under Section 20(b)(ii)(C) of the NDPS Act and recorded the sentence as indicated above. 5. We have heard Mr. K. Sarma, learned counsel for the appellants a s well as Mr. K. Munir, learned Addl. P.P for the State of Assam. 6. Mr. K. Sarma, learned counsel for the appellants at the very out set of his argument submitted that the impugned judgment and order of convictio n and sentence cannot sustain in view of the grounds as indicated herein before amongst others. It was argued by him at the first instance that the prosecution failed to prove before the trial court that it complied with the provisions of S ection 52A (2) (a)(b) and (c). It was argued by Mr. Sarma that where any narcoti c drug and psychotropic substance has been seized by the officer, the officer em powered under Section 53 of the NDPS Act is to prepare an inventory of such narc otic drug or psychotropic substance containing such details relating to their de scription, quality , quantity, mode of packing, marks, numbers or such other ide ntifying particulars of the narcotic drug or psychotropic substance or the pack ing in which they are packed, country of origin and other particulars as the off icer referred to in sub-section (1) may consider relevant to the identify of th e narcotic drug and psychotropic substance in any proceeding under this Act and shall make an application, to any Magistrate for the purpose of certifying the correctness of the inventory so prepared or taking, in the presence of such Magi strate, photographs of such drug or substance and certifying such photographs as true or allowing to draw representative samples of such drug or substance, in t he presence of such Magistrate and certifying the correctness of any list of sam ples so drawn. In the present case as contended by Mr. K. Sarma, no such require ments were complied with by the seizing officer, Mr. M. M. Mushahary, the Inspec tor of Excise. Therefore, this mandatory provision when not followed by the seiz ing officer, the factum of seizure of Ganja from the truck kept concealed in a s ecret chamber driven by the appellant Ramesh Sahu along with Harjeet Singh, the other appellant cannot be substantiated as against the appellants. It was submi tted by Mr. Sarma that the seizing officer is duty bound to prepare an inventory of the drug and psychotropic substances giving all details as indicated in sub section 2 of Section 52A of the NDPS Act. The Seizing Officer is also duty bound to make application to any Magistrate for the purpose of certifying the correct ness of the inventory and drawing of representative samples in presence of such Magistrate and also photographs of the substances certifying the same to be true . All these procedures are required to be followed to substantiate that narcotic drug and psychotropic substance had been seized. The procedure being not follow ed, no criminal liability can be attributed against the appellants. Referring to sub-section 4 of Section 52A of the Act Mr. Sarma submitted that the inventory so prepared and the photographs so taken of the narcotic drug and psychotropic s ubstance and list of samples drawn that certified by the Magistrate can be used as primary evidence in respect of commission of such offence. It was submitted b y Mr. K. Sarma that nowhere in the evidence on record compliance of the provisio ns of sub section 2 of Section 52A of the NDPS Act can be traced. For non-compli ance of this provision the appellants facing the charge under Section 20(b)(ii) (C) cannot be booked and sentenced accordingly. It was submitted by Mr. Sarma th at on this ground alone appellants are entitled to acquittal. 7. Mr. Sarma in support of the above contention placed reliance in the decision rendered in the case between Sh. Chanam Ranjit Meitei Vs. Union of India; reported in 2010 (3) GLT 361. 8. From the scrutiny of the evidence of Mr. M. M. Mushahary it woul d appear to us that on 28-03-2006 at about 2 pm while he was on duty at Srirampu r Excise Check Gate along with his staff and was checking the vehicles thereat t hey had to check the truck bearing registration No. AS-09-A-1135 in routine man ner and while checking noticed a secret chamber from the rear up to the cabin wh erein they found 52 packets suspected of Ganja wrapped with polythene. The vehic le was found to be loaded with coke. The aforesaid packets while weighed the wei ghtment turned to be about 527.500 kilograms. Vehicle was driven by appellant Ra mesh Sahu who came to be accompanied with the cleaner, the appellant Harjeet Sin gh. Both the appellants were arrested. He also stated that samples were taken fr om the suspected Ganja seized for the purpose of chemical examination and report . He also stated that the documents of the vehicle, the vehicle itself and 52 pa ckets of suspected Ganja were all seized in presence of the witnesses vide seizu re memo Ext. 1. However we could not find anything therein regarding the complia nce of provisions of sub section 2 of Section 52A of the Act. Mr. K. Sarma, ther efore, taking ratio laid down in the case (supra) submitted that violation of th e provision would render the conviction illegal and not sustainable in law. It w as submitted by him that the primary object of incorporation of sub section 2 of Section 52A is to produce primary evidence in respect of commission of the offe nce by the offenders. Though the truck, the seized packets containing suspected Ganja and the appellants were produced before the Special Judge, Kokrajhar, such production necessarily would not mean the compliance of the provisions of sub s ection 2 of Section 52A of the Act. All the formalities as contained in sub sect ion 2 of Section 51A are required to be followed at the place where the narcotic drugs and psychotropic substances recovered. On the seizure of the narcotic dru gs and psychotropic substances representative samples of the same are required t o be drawn in presence of Magistrate per provisions of clause (b) of sub section 2 of Section 52A with a certificate about correctness of the same. Further phot ographs of such conveyance or substances are required to be taken and certified by a Magistrate. This provision being not followed by Sri M. M Mushahary, the In spector of Excise, the factum of seizure, preparation of inventory, taking of ph otographs, drawning of samples cannot be hold to have been proved by the prosecu tion. During course of argument Mr. Sarma also submitted that the Magistrate as indicated in sub section 2 is required to be a Judicial Magistrate. In support o f his contention referred to Section 3 of the Cr.PC. It was argued by him that t he word Magistrate as employed in sub section 2 of Section 52 A of the NDPA Ac t being not qualified by any words shall be construed, out side the metropolitan area, to be a Judicial Magistrate. The Excise Inspector, the seizing officer ha ving not followed the provision of sub section 2 of section 52A of the NDPS Act we do not propose to discuss in regard to Magistrate as employed in sub sectio n 2 of the Section 52A of the NDPS Act. It would be a futile exercise in view of non compliance of the provision of sub section 2 of Section 52A of the NDPS Act . 9. In regard to conscious possession which is considered to be one of the grounds for appeal, it was argued by Mr. K. Sarma, learned counsel for th e appellants that the learned trial court wrongly applied the provision of Secti on 35 of the NDPS Act, the presumption of culpable mental state. In regard to th e keeping and transportation of the Ganja concealing the same in the secret cham ber of the truck it was argued by Mr. Sarma that the appellants are the driver a nd the cleaner of the truck coke being loaded therein. Ganja had not been seized by the excise personnel under the coke but the same was discovered in a secret chamber of the truck and seized. This being the evidence on record, according to Mr. Sarma would not be justified to say that the appellants had the conscious p ossession of the Ganja. The excise Investigating Officer also arrayed the owner of the truck as one of the accused but for his abscondance, the case of the appe llants was segregated and tried. Had the owner been tried together along with th e appellants the decision of the case would have gone otherwise Mr. Sarma argued . It was further argued that to record a conviction under Section 20(b)(ii)(C) t here must be conscious possession of the article(s) seized. Mere custody without awareness of the nature of such possession would not render the possessor liabl e. Fifty-two packets of Ganja were evidently recovered from the secret chamber o f the truck. It was concealed thereat. In the facts and circumstances of the cas e, the appellants being the driver and the cleaner of the truck, it was argued, might not have the conscious possession or knowledge of keeping the same in the secret chamber. The factum of recovery of the Ganja from the secret chamber of t he truck driven by the appellant Ramesh Sahu along with the cleaner Harjeet Sing h would not necessarily infer a presumption that they were in conscious possessi on of the same. For the applicability of the Section 35 of the NDPS Act, presump tion is required to be proved, the culpable mental State of the accused/possesso r by cogent and sufficient evidence. Mere possession without culpable mental sta te there can be no presumption regarding possession of the seized article. If th e prosecution succeeds to prove culpable mental state of the accused, burden shi fts to the accused to prove that he/she had no mental state with respect to the act charged as evidenced in the prosecution. In this case we have also come acro ss that the offence report is also laid as against the owner of the vehicle. The re is no evidence forthcoming in regard to the conscious possession of the Ganja kept concealed in the secret chamber of the truck, therefore, the finding of th e learned trial court that appellants had been conscious possession of the Ganja that kept concealed in the secret chamber would not sustain. On account of rec overy of the Ganja from the truck a presumption cannot be drawn as against the a ppellants that they had the conscious possession of the same. Mr. K. Sarma learn ed counsel for the appellants in support of his contention i.e. in regard to con scious possession relied in the decisions reported in 1998 (3) GLT 4 (Lalprasad Karki & Others Vrs. State of Assam) and 2009 SAR(Criminal) 275 ( State of Punjab Vrs. Hari Singh & Others). In paragraph-15 of the judgment rendered in Lalprasa d Karki’s case (supra), this court held as under: 15. Going through the whole discussion nowhere does the learned trial Judge a ppears to have addressed himself to the crucial question whether the appellants were in conscious possession of the contraband articles. That is the initial bur den of the prosecution. The seizure witnesses PWs. 4 and 5 who were summoned by the D.S.P afford corroborative evidence as regards search and recovery from the jeep. According to these witnesses as well the accused appellants were standing near the vehicle at the time of recovery. What is significant to be noted that a s per FSL’s report, Exts. 6, 7 sealed packets of ganja containing about 24 g. dr ied plant were received by the Laboratory. Even the Officer-in-charge of the PS, PW-2 does not in his evidence state that while seizing the articles whether he had sealed the same on the spot or for that matter anywhere else later on. The s ealing part has not been deposed to by the star witness let alone other attestin g witnesses like PWs 4 and 5. In this state of evidence it is an extremely suspi cious circumstances as to when how and by whom the packets were sealed. If at a ll these were sealed what was the seal. impression, whether the same were sent to the laboratory, whether other was any comparison done by anyone of the seal o n the packets, whether the same were found to be intact, whether the sample was prepared on the spot and sealed on the spot so as to avoid any possibility of t he same being tampered with. The sealing part has not been adumbrated in the sta tement of any of the witnesses. All these evidence is totally missing in the ins tant case. In the case(supra) this court held that possession of the contr aband article must be conscious. Mr. K. Sarma, learned counsel for the appellant s also submitted strenuously that the appellant having not been questioned relat ing to conscious possession while examined under Section 313 of the Cr. P.C, omi ssion to put such question vitally effects the case of the prosecution. The evid ence being in nature that 52 packets of Ganja had been seized from the secret ch amber kept in concealment of the truck being driven by the appellant Ramesh Sahu along with his cleaner appellant Harjeet Singh and the same having been seized and samples drawn and the samples giving positive test for cannabis, questions a re required to be put to the accused-appellants in regard to such concealment, recovery, seizure, drawning of sample etc. to obtain a reply in regard to consci ous possession. The appellants being not examined on this point under Section 31 3 Cr. P.C, claim of the prosecution that the appellant had the conscious possess ion of the Ganja would not come on the way of the appellants asking this forum t o acquit them from the charge. Mr. Sarma taking the ratio of the Hari Singh’s ca se (supra) contended that it is a boundent duty to prove conscious possession, m ere custody without awareness of the nature of such possession would not render the accused liable to be convicted under the charge framed against them. Moreove r, no question having been put in regard to conscious possession of the appellan ts while under examination under Section 313 Cr. PC, the case of the prosecution is vitally affected. During course of argument it was further argued by Mr. Sar ma that possibility of keeping 52 packets of Ganja in the secret chamber of the truck by its owner cannot also be ruled out. Therefore, the presumption under Se ction 35 of the Act cannot be drawn against the appellants. 10. Section 42 of the NDPS Act deals with the power of entry, search , seizure and arrest without warrant or authorization. While Section 43 deals wi th power of seizure and arrest in public place. In our present case such search and seizure was made by the Excise Inspector, Sri M. M. Mushahary being empowere d under Section 42 and 43 of the NDPS Act. It would be appropriate to say at thi s stage that such search and seizure was made during routine check at the Sriram pur Excise Check Gate by the Inspector Sri M. M. Mushahary along with other staf fs. It was submitted by Mr. K. Sarma that the factum of recovery and seizure of Ganja from the secret chamber of the truck driven by the appellant, Ramesh Sahu along with his cleaner, Harjeet Singh, the another appellant having not been int imated to his superior officers is hit by sub section 2 of Section 42 of the NDP S Act. Sub section 1 of Section 42 speaks for entry, search, seizure and arrest without a warrant or authorization. It says any officer not being an officer sup erior in rank to a peon or sepoy or constable of the departments of Central Exci se, narcotics, customs, revenue intelligence or any other department of the Cent ral Government or of the Border Security Force or any such officer of the revenu e, drugs control, excise, police or any other department of the State Government empowered in that behalf by general or special order if has reason to believe f rom personal knowledge or information given by any person and taken down in wri ting that any narcotic drug and psychotropic substance in respect of which an o ffence punishable under Chapter IV has been committed or any document or other a rticle which may furnish evidence of the commission of such offence is kept or c oncealed in any building, conveyance or enclosed place, may, between sunrise and sunset enter into and search any such building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry and s eize such drug or substance and all materials used in manufacture thereof and an y other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the Act and any documents and other articles whi ch he has reason to believe may furnish evidence of the commission of any offenc e punishable under Chapter IV relating to such drug or substance and detain an s earch if he thinks proper arrest any person whom he is reason to believe to hav e committed any offence punishable under Chapter IV relating to such drug or sub stance provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the conce alment of evidence or facility for the escape of an offender, he may enter and s earch such building, conveyance or enclosed place at any time between sun set an d sunrise after recording the grounds of his belief. 11. Admittedly, the search and seizure was made during day time whil e the Inspector of Excise and staffs were in regular checking at the check gate, therefore, the requirement of personal knowledge or information given by any pe rson did not come into play in respect of the search and seizure of the Ganja fr om the truck. The provision of Section 42 would also not apply in our present ca se. Therefore, as contended by Mr. K. Sarma there is violation of provisions of sub section 2 of Section 42 of the NDPS Act cannot be accepted. The Excise Inspe ctor Mr. M. M. Mushahary being discharge his duty at Srirampur check gate in ro utine checking of the vehicles he checked the truck as indicated above, wherefro m 52 packets of Ganja had been recovered kept concealed in a secret