20 Jan 2121

When the offense is serious, providing stringent punishment, provision of law is required to be scrupulously followed - Gauhati High Court

Case : Thounaojam Punima Singh v. Union of India and Anr. Crl. A./66/2020

Court : Gauhati High Court

Bench : Justice Mir Alfaz Ali

Decided on : 20 Jan 2121

Relevant Statutes

Sections 17(C), 51(A), 52(A), 53, and 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Sections 100(4), 100(5), and 313 of the Code of Criminal Procedure, 1973

Brief Facts & Procedural History

1. The relevant seminal facts are that on August 2, 2016, the Customs headquarters preventive unit, narcotic cell at Gauhati, received information regarding the sale of opium near Gauhati Medical College Hospital. According to the informant, the unknown person was identified as a man from Manipur, carrying opium. Pursuant to the information, customs officials with two independent witnesses were dispatched to keep surveillance near the Gauhati Medical College Hospital. Around 2 pm, a suspicious man carrying a black bag was located near the said location, and on further investigation, six packets containing unknown substances were retrieved from the bag.

2. Subsequently, the customs officials apprehended the man and took him to the Divisional office at Christian Basti, followed by a chemical examination of the substance, which tested positive for opium. As per the Forensic Science Laboratory’s report, a report was filed, and the accused, Thounaojam Punima Singh, was presented before a special judge.

3. Upon completing the examination, the special judge found the accused guilty of possessing contraband and sentenced him to rigorous imprisonment for ten years coupled with a fine of Rs. 4 lakhs under Section 17(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

4. Consequently, the accused, Thounaojam Punima Singh, filed an appeal in the Gauhati High Court, requesting relief.

The Issues of the Case

1. Whether the customs officials followed the provisions of Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985, while apprehending the accused and drawing samples of the substance?

2. Whether there was a conflict between the standing order issued by the central government and the statutory provision governing the taking of samples?

The Observations of the Court

The Honourable Gauhati High Court observed that:

1. There were many discrepancies in the conduct of the customs officials and the recorded testimonies of the witnesses. According to PW-5 and PW-6, members of the customs officials, the search and seizure of the contraband was done in the presence of the two independent witnesses, who were present at the site from 11 AM to 2 PM. However, the cross-examination revealed that PW-1 was present at the site for only about 1 hour, contradicting the earlier claim. Moreover, the other independent witness, Anand Narzary, was never produced as a witness. The court relied on the Supreme Court’s judgment in Gangadhar @ Gangaram v. State of Madhya Pradesh, Crl.A./404/2020, and held the statements of the witnesses inadmissible.

2. Coming to the conduct of the search and seizure of the contraband, the Gauhati High Court referred to section 52(A) of the Narcotic Drugs and Psychotropic Substances Act of1985 and the Supreme Court’s judgment in Union of India v. Mohanlal, (2016) 3 SCC 379. The Gauhati High Court observed that in the present case, there was a total disregard to the provision of law and mandate of the Supreme Court in Union of India v. Mohanlal, which categorically laid down how the sample must be taken from the seized contraband. Rather than taking a sample in front of a Magistrate, S.H. Lalthawama v. State of Mizoram, 2019 (3) GLT 337, or at the spot of recovery of the contraband, the customs officials took the sample in the customs office.

3. Finally, the Gauhati High Court observed that though the presence or absence of witnesses at the time of search and seizure is not absolute for vitiating a trial, Gyan Chand and Ors. v. State of Haryana, (2013) 14 SCC 420, the main issue is whether there was an attempt by the officer conducting search and seizure to avail any witnesses for the same. In the present case, no such effort was evident from the facts.

The Decision Held by the Court

Relying on the facts and observations made, the honourable Gauhati High Court held that:

1. While determining the liability of an accused under acts such as the Narcotic Drugs and Psychotropic Substances Act, where there is the reverse burden of proof on the accused, the compliance with statutory requirements and the scrutiny will have to be proved beyond a reasonable doubt.

2. As in the present case, the same could be proved; the Gauhati High court gave the benefit of the doubt to the accused, thereby setting aside his sentence and ordering his release.

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