GAUHATI HIGH COURT ISSUES ORDER FOR MONSER ALI V/S THE STATE OF ASSAM

GUWAHATI, India, July 26 -- Gauhati High Court issued the following order on June 26:

1. This appeal is preferred challenging the judgment and order dated 01.03.2023 and 02.03.2023 passed by the learned Special Judge, Goalpara in connection with Special Case No. 14/2022 arising out of Goalpara Police Station Case No. 78/2022 (GR Case No. 378/2022), convicting Manser Ali (hereinafter also referred to as the accused or the appellant) under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and, sentencing him to undergo rigorous imprisonment for 10 (Ten) years and to pay a fine of Rs.1,00,000/- (Rupees One Lac) with default stipulation.

2. The case in brief is that on 28.03.2022 at about 5.50 pm, during a naka checking at Bhalukdubi (Goalpara - Agia Road), the appellant was approaching from Goalpara towards Agia in a vehicle of Maruti 800 make, bearing registration No. AS-18D/8110. This vehicle was stopped and searched and three boxes containing 432 SPAS-TRANCAN capsules (Tramadol - a psychotropic substance) was recovered, concealed under the driver's seat. The boxes of capsules were seized and an FIR was lodged and registered as Goalpara Police Station Case No. 78/2022 under Section 22(b) of the NDPS Act.

3. Investigation commenced and on completion of investigation, charge sheet was submitted against the appellant under Section 22(b) of the NDPS Act. At the commencement of trial, a formal charge under Section 22 (c) of the NDPS Act was framed and read over and explained to the appellant,to which he pleaded not guilty and claimed to be tried.

4. The prosecution adduced the evidence of 8 (Eight) witnesses and exhibited several documents to substantiate its stance. On the incriminating circumstances arising against the appellant, several questions were asked to the appellant and his plea was of total denial.

5. Heard Mr. F. Haque, learned counsel for the appellant and Mr. K. Baishya, learned Additional Public Prosecutor, Assam.

6. Learned counsel for the appellant laid stress in his argument that the total weight of the contraband was 20.952 grams but the Trial Court has erroneously convicted the appellant under Section 22(c) of the NDPS Act. Commercial quantity of tramadol containing capsule is 250 grams whereas in this case the total weight was found to be 20.952 grams.

7. It is further submitted that Section 42 of the NDPS Act has not been complied with and the evidence has proved the non-compliance.

8. Learned counsel for the appellant further laid stress in his argument that the vehicle was halted by the Investigating Team, consisting of four persons and one police personnel is stated to have interrogated the driver of the vehicle. The owner of the vehicle has been exonerated. The vehicle was searched by a constable and as per Section 42 of the NDPS Act, a constable has no power to search a vehicle suspected to be transporting contraband.

9. The evidence of the independent witnesses Hasen Ali, PW-2 reveals that he affixed his signature at the place of occurrence, whereas, Gopi Rabha (PW-1), a constable has deposed that the seizure list was prepared at the police station. It is further argued by the learned counsel for the appellant that the evidence of Gopi Rabha, PW-1 reveals that the appellant was brought to the police station in his own vehicle whereas on the contrary, Nipumoni Choudhury, PW-6 stated that the appellant was brought to the police station in a departmental vehicle. It could not be ascertained specifically from the evidence of Nipumoni Choudhury, PW-6 if the seizure was made at the police station or at the spot.

10. Learned counsel for the appellant further emphasized through his argument that the owner of the vehicle was not even made a witness despite the fact that the vehicle which was seized in connection with this case was given in zimma to the owner of the vehicle.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=tuqye3PhFs%2BBDn75ghiOpDe57gGfJe37KBwlaH80VS0U4D9zUlUJisGGqCWmZE9x&caseno=Crl.A./130/2023&cCode=1&cino=GAHC010069062023&state_code=6&appFlag=)

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