IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM:: NAGALAND:: MIZORAM AND ARUNACHAL PRADESH) CRL.A. No.36(J)/2007

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM:: NAGALAND:: MIZORAM AND ARUNACHAL PRADESH) CRL.A. No.36(J)/2007 MEGU MANKI -Versus- APPELLANT STATE OF ASSAM RESPONDENT PRESENT HON BLE MRS. JUSTICE ANIMA HAZARIKA Advocate for the appellants : Ms. L Sharma Amicus Curiae Advocates for the respondent /opposite party : Mr. D Das Additional Public Prosecutor, Assam Date of hearing and Judgment : JUDGMENT & ORDER (ORAL) This appeal is directed against the judgment and order dated passed by the learned Special Judge, Sivasagar in Special Case No.10/2005 convicting the accused appellant under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act, for short) and sentencing him to undergo rigorous imprisonment (RI for short) for 10 years and to

2 2 pay a fine of Rs.1,00,000/- (Rupees One Lakh only) in default of payment of fine, to undergo RI for another 1(one) year. 2. I have heard Ms. L Sharma, learned Amicus Curiae appearing for the appellant. Also heard Mr. D Das, learned Additional Public Prosecutor, Assam for the State respondent. 3. The prosecution case in brief is that on at about 3 P.M., Shri Timalu Konwar, Shri Ashik Nayak and Shri Binod Gowala of Namtola had produced the accused Megu Manki along with 5 Kgs, 900 grams of ganja, contained in a plastic bag at Namtola Police check-post. Accordingly, the said ganja were seized by the Sub-Inspector of Police, in presence of witnesses and an Executive Magistrate after observing all legal formalities. The Police Officer, thereafter collected two samples of 50 grams each from the seized ganja, packed and sealed it in presence of the Executive Magistrate and sent the same to Forensic Science Laboratory (FSL, for short) for chemical examination. The accused was, thereafter, arrested under Section 42 of the NDPS Act and forwarded to the Court. On receipt of report from the FSL that the exhibit gave positive test for cannabis (ganja), the Sub-Inspector Rajib Kumar Saikia lodged an FIR before the

3 3 Officer-in-Charge of Sonari Police Station. On receipt of the said FIR, police registered a case being Sonari PS Case No.213/2005 under Section 20 of the NDPS Act. 4. After completion of the investigation, police submitted charge sheet under Section 20 of the NDPS Act against the accused appellant and sent him up to stand trial under the aforesaid section of law. 5. The learned trial court has framed charge under Section 20 of the NDPS Act. The charge so framed being read over and explained to the accused, he pleaded not guilty and claimed to be tried. 6. The prosecution examined as many as 6(six) witnesses including the Investigating Officer (IO for short) in support of their case. 7. On closure of the prosecution witnesses, statement of the accused was recorded under Section 313 Cr.P.C., wherein the accused had admitted that the witnesses have found ganja in the bag carried by him and handed him along with the ganja over to

4 4 the police at Namtola Police check-post. Police seized the said ganja from him in presence of the Magistrate and took two samples from the said ganja found from him and took his thumb impression on the sealed packet. The accused had further stated that one Pradip brought the said ganja from Nagaland and the said Pradip having seen 3(three) persons, threw the bag containing ganja and then the said three persons supposing the bag of ganja to be carried by him, had handed him over to police along with the bag of ganja. Accordingly he pleaded innocence. 8. The learned trial court on appreciation of evidence and materials available on record convicted and sentenced the accused as indicated hereinabove, hence the present appeal from jail. 9. PW-1, Shri Timalu konwar, PW-3, Shri Ashik Nayak and PW- 4, Shri Binod Gowala have consistently stated that on the day of occurrence at about 2 P.M., they found the accused near Rupsing Tilla with a bag in his hand containing ganja. Then they took the accused along with the bag of ganja to the Police Check Post where the police seized ganja from his possession. PW-3 and PW- 4 had proved the bag of Ganja in the Court, which is marked as material exhibit 1.

5 5 During cross examination, PW-1 has stated that police noted their verbal information. PWs-1, 3 and 4 had stated that they have found ganja with the accused and handed him along with the bag of ganja to the police. Therefore, there is no doubt that PWs- 1, 3 and 4 had found ganja from the possession of the accused. 10. PW-2, Shri Rajib Saikia, Sub-Inspector of Police, who has seized the ganja and was present at Namtola Police Check Post while the PWs-1, 3 and 4 handed over the accused Megu Manki before him along with the bag of ganja. On receipt of the ganja, he made GD Entry at the Police Check Post. In the meanwhile, PW- 2 had given the information to the Circle Inspector and an Executive Magistrate regarding seizure of the ganja. Accordingly, after weighing the ganja, PW-2 had seized the ganja in presence of the Executive Magistrate vide seizure list Ext.2. According to him, the quantity of ganja seized by him was found to be 5 Kgs 900 gms. The seizure list has been proved by PW-2 and marked as material exhibit 1. PW-2 also sent the ganja to the FSL for chemical examination. He also seized a pair of weighing-balance from a shopkeeper vide seizure list, Ext.3 for weighing the ganja and returned the said weighing-balance to the person concerned. Thereafter they arrested the accused and forwarded him to the

6 6 Court. On the other hand, the report of FSL, Ext.8 had proved the samples to be cannabis (Ganja). On receipt of the report from the FSL, PW-2 had lodged a formal FIR (Ext.9). 11. PW-5, Shri Raju Kumar and PW-6, Shri Birendra Debnath are not eye-witnesses. PW-5 is the owner of the weighing balance which was used by the police for weighing ganjas. PW-6 had stitched the bag of ganja and signed the seizure list. Hence the evidence of PW-5 and 6 are not relevant to decide the merit of the case. 12. From the evidence on record as discussed above, I find that the learned trial court has rightly recorded the finding in respect of guilt of the accused appellant for the charge framed against him. However, the learned trial court erred in categorizing the seized ganja as of commercial quantity and that perhaps had happened due to the reason that in Ext. 8, the result of the examination of drugs (ganja) was recorded by the Scientific Officer, Drugs and Narcotic Division, FSL, as follows: The Exhibit DN-416/2005 gave positive test for cannabis (Ganja).

7 7 13. From the findings recorded by the FSL expert, it appears that ganja has been equated with cannabis while they are easily distinguishable from each other by a bare examination of the definitions rendered under Section 2 of the NDPS Act. The respective definitions of cannabis (hemp), ganja and cannabis are quoted hereinbelow for ready reference: Section 2(iii) cannabis (hemp) means (a) charas, that is, the separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above-forms of cannabis or any drink prepared therefrom; (iv) cannabis plant means any plant of the genus cannabis. 14. On the other hand, from the table notified vide S.O.1055(E) dated under the NDPS Act, it is specified that 1kgs of cannabis and cannabis Resin, Charas, Hashish extracts and

8 8 Tinctures of cannabis is to be counted as commercial quantity while ganja weighing 20 kgs or above is specified to be commercial quantity. 15. Admittedly, the prosecution case is that 5kg 900 gms of ganja were seized from the possession of the accused appellant for which he was convicted and sentenced for the offence charged. However, the learned trial court wrongly imposed the penalty prescribed under Section 20(b)(ii)(c) instead of one under Section 20(b)(ii)(B). 16. It is stated at the Bar that the appellant is in custody since he was arrested by police i.e. on and from which shows that the appellant is in custody for 7 years 9 months whereas the appellant was sentenced to suffer 10 years imprisonment. The maximum sentence for the offence under Section 20(b)(ii)(B) is 10 years. 17. Considering the quantity of ganja recovered from the possession of the appellant, this Court is of the view that the period for which the accused is in jail will be sufficient to meet the ends of justice in the present case.

9 9 18. Accordingly, the sentence is reduced to the period already undergone by the accused appellant. He be released forthwith if not wanted in connection with any other case. 19. The appeal is partly allowed as indicated hereinabove. 20. Send down the lower court records. 21. Before parting with the case, I would like to put on record the valuable assistance rendered by Ms. L Sharma, learned Amicus Curiae in arriving at a decision as aforesaid. Accordingly, she is entitled to a professional fee which is quantified at Rs.5000/- (Rupees Five Thousand) only. Shivani JUDGE

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

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