Gauhati High Court
Crl.Rev.P./206/2023 on 7 February, 2025
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GAHC010110002023
2025:GAU-AS:1273
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
CRIMINAL (REVISION PETITION NO. 206 OF 2023
Sri Dhan Singh, Age 58 years,
Son of Late Dhupan Singh,
Permanent Resident of Village-Balihar,
Police Station - Semeri,
District- Bhojpur, Bihar - 302118.
........Petitioner (in Jail)
-Versus-
1. The State of Assam,
represented by Public Prosecutor, Assam.
2. The Superintendent of Police,
Central Bureau of Investigation,
Government of India,
Plot No. 5 - B, CGO Complex,
Lodhi Road, New Delhi - 110003.
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3. The Central Bureau of Investigation,
ACB Guwahati, NH-37,
Betkuchi, Post Office- Garchuk,
Guwahati - 781035, Assam.
.........Opposite Parties.
Advocates for the petitioner: Ms Sutapa Sanyal,
Mr A H Sarkar.
Advocate for the respondents: Mr M Haloi, Spl. PP, CBI
BEFORE
HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing : 22.11.2024
Date of Judgment : 07.02.2025
JUDGEMENT AND ORDER (CAV)
Heard learned counsel, Ms Sutapa Sanyal, for the petitioner and learned Special Public
Prosecutor, Mr M Haloi, for the CBI.
2. This application has been filed under Sections 397/401 of the Code of Criminal
Procedure, 1973 (CrPC, for short), read with Article 227 of the Constitution of India, read with
Section 482 CrPC.
2. Sri Dhan Singh will hereinafter be referred to as the applicant or the petitioner. The
petitioner has prayed for setting aside the case being CR Case No. 6/1996, in connection with
GR Case No. 413/1994, arising out of Tezpur PS Case No. 211/1994, corresponding to CBI
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Case No. RC-6/1999-SIU, XI-CBI/New Delhi dated 29.10.1999, based on Charge Sheet No.
6/2000 (21.10.2000), under Section 20(b)/25/29, read with Section 8 of the NDPS Act, 1985
pending in the Court of learned Special Judge, Sonitpur, Tezpur, and with prayer to release
the petitioner from custody. An alternate prayer was made to expedite the disposal of CR
Case No. 6/1996, arising out of GR Case No. 413/1994 or any such order or directions
3. The petitioner’s case in brief is that a secret information was received by the
investigating team that a truck bearing Registration No. UHZ-1728 was carrying contraband
and then SI D M Brahma, T Kalita, intercepted the truck at Kaliabhumura on 09.04.1994 at
about 11:00 am and brought the truck to the Police Station at 03:00 pm with the driver and
the handyman. Unfortunately, before the truck could be thoroughly checked, both the driver
and the handyman in the pretext of having tea escaped. On the basis of the information, the
truck was checked on 10.04.1994 in presence of Executive Magistrate (Sri S K Deka) and
other witnesses at 04:00 pm at Tezpur Police Station Campus. About 1 ton of coal was
unloaded and 241 packets of contraband wrapped with hyacinth cloth was found concealed
under the coal inside the truck. The truck along with its documents were seized and so were
the goods and the contraband in presence of witnesses. The truck was proceeding from
Mariani towards Uttar Pradesh and the Police registered a case being Tezpur PS Case No.
311/1994, on 10.04.1994, under Section 20 (b) of the NDPS Act, against the driver- Mohan
Singh and the owner of the truck- Ramesh Chandra Jaiswal.
4. Investigation commenced and the Police finally submitted charge sheet on 05.02.1996,
against Mohan Singh and Ramesh Chandra Jaiswal, i.e., driver and owner of the truck
5. It is pertinent to mention that the contraband weighed 2660 kgs. However, on
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30.09.1999, the learned Special Judge, after perusal of the charge sheet opined that the
investigation was perfunctory and could not bust the gang involved in the drug trafficking and
an order was passed for de novo investigation and if need arises, to be investigated by CBI.
FIR No. being RC-6/99-SIU, XI/CBI New Delhi dated 29.10.1999 was thereafter registered.
After investigation, the IO of the CBI submitted charge sheet being 6/2000 dated 21.10.2000,
under Section 20(b)/25/29, read with Section 8 of the NDPS Act, 1985, against the present
petitioner, who was arrested on 27.07.2000.
6. During trial, charges were framed under Section 20 (b)/25/29, read with Section 8 of
the NDPS Act, 1985 and the petitioner pleaded not guilty and claimed to be tried. Only two
prosecution witnesses, namely, Sri Ajit Kumar Baruah and Sri Rajib Prasad Brahma were
examined within the period spanning 09.09.2002 up to 20.01.2003.
7. Learned counsel for the petitioner Ms S Sanyal laid stress in her argument that the
procedure how the contraband was weighed is not clear. 51 witnesses are enlisted in the
charge sheet. The present petitioner is not named in the FIR. He has been falsely implicated
in the instant and the contraband was also not seized from his possession. Without any
substantial evidence, the petitioner has been incarcerated for a prolonged period only on
suspicion. He was present on each and every day, during trial and was granted bail by this
Court on 29.01.2001. There was no default on the side of the petitioner, but even then, only
two witnesses out of 51 witnesses were examined since the framing of charge on 08.07.2002,
up to 20.01.2003 on intervals of 2/3 months. By an order dated 13.03.2003, the Hon’ble
Supreme Court set aside the order of bail passed by this Court.
8. It is further averred that the petitioner is highly aggrieved and depressed and has
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become apprehensive as charge was framed after 8 years since the inception of this case.
Thus, the petitioner took shelter in his native village at Balihat in the district of Buxar in Bihar
and embarked upon his journey on serving the Mandir at his home town as penance. On
26.09.2022, the petitioner was arrested and finally produced before the trial Court.
9. It is further contended that on 28.09.2022, the trial Court passed an order to create a
supplementary record of the case as the original case record could not be traced out on
28.09.2022, when the petitioner was produced before the Court. An order was passed to
produce the petitioner on 12.10.2022 and the Dealing Assistant was directed to trace out the
original case record of CR Case No. 6 of 1996, arising out of GR Case No. 413/1994. The
petitioner thereafter moved two applications for bail. It is further contended that the
petitioner was unaware of the instant incident as long before the date of occurrence, the
petitioner’s vehicle was sold and the petitioner had no knowledge or information about the
vehicle or in whatever manner the vehicle was being utilized.
10. It is further contended that no progress has been made in the instant case and the
petitioner’s right to speedy trial, which is an intrinsic part of Article 21 of the Constitution of
India, has been infringed and has relied on the decision of the Hon’ble Supreme Court in
Abdul Rehman Antulay v. R S Nayak, reported in AIR 1992 SC 1701.
11. The petitioner has also relied on the decision of the Hon’ble Supreme Court in
Hussainara Khatun & Others -Vs- Home Secretary, State of Bihar, Patna , reported in
AIR 1979 SC 1369, submitting that the right to speedy trial also falls under the broad
sweep of Article 21 of our Constitution.
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12. The points to ponder are that the IO has mentioned while submitting charge sheet that
it was found that – due to lack of basic knowledge of the provisions of NDPS Act, Inspector N
N Buragohain authorized SI Brahma and SI Kalita, under Section 41 (2) and Section 42 of the
NDPS Act, to intercept the Truck No. UHZ-1728, who failed to search the truck on the same
day, i.e., on 09.04.1994 and departmental action was also recommended.
13. It is contended that cases under NDPS Act is based on search and seizure and non-
compliance of such provisions has seriously prejudiced the petitioner and as the trial, which is
still at the nascent stage stands vitiated, the proceeding is liable to be set aside and quashed.
14. It is further contended that the IO has mentioned in the charge sheet that the
provisions of Section 42 (1) and Section 42(2) have not been complied with, which is fatal to
the prosecution case.
15. It would be apt to reiterate that the truck was not searched on the same date when it
was seized, i.e., on 09.04.1994, whereas, the truck was searched on 10.04.1994. The
provisions of Section 42 and Section 50 of the Act are intended to act as a safeguard against
vexatious search and unfair dealings to protect the interest of an innocent person. It is
further averred that the IO of the CBI has mentioned in the charge sheet that the original
documents collected during investigation have been stolen while the documents were being
taken from Guwahati to Delhi on 21.09.2000 and 22.09.2000 and an FIR has been lodged
against this incident, with the Police at Mugalsarai Police Station.
16. It is further alleged that after seizure of the truck on 09.04.1994 at 11:00 am, the truck
was lying for more than 24 hours at the Police Station on 10.04.2024. Meanwhile, both the
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driver and the handyman fled from the place of occurrence, whereas the truck was checked
after 24 hours as information was received relating to transportation of contraband. This is a
perilous situation and thus, this case is liable to be set aside and quashed.
17. It is further contended that without the statement of the handyman and the driver, who
escaped, the allegation that the ‘ ganja’ was loaded with the knowledge of the owner, i.e., the
petitioner is an assumption. Conscious possession cannot be established without the
knowledge of such possession and mere possession of ‘ ganja’ cannot be held to be conscious
possession, more so, when it has not been mentioned in both the charge sheets or the
supplementary charge sheet submitted by the CBI that the ‘ ganja’ was transported under the
knowledge of the petitioner. Thus, as per Section 37 of the NDPS Act, the petitioner is entitled
to bail.
18. It is further submitted that from the charge sheet itself, it is clear that the Truck No.
NLK-8535 was initially registered in the name of the petitioner in the year 1980. The truck
was sold to another person and, thereafter, it was registered in the name of the other person.
It is submitted that if there is a new registration of the vehicle and the new owner does not
take no objection from the RTO, then solely on this ground, it cannot be held that the
petitioner continues to be the owner of the said truck. On the date of the incident, the truck
was not registered in the petitioner’s name and hence, he cannot be held to be the owner of
the seized vehicle.
19. It is further submitted by the petitioner that the bail order of this Court was set aside
by the Hon’ble Supreme Court on 13.03.2003, on technical grounds. It is further contended
that the petitioner was re-arrested on 26.09.2022 and since then, he has ben languishing in
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the jail in a case, which is not likely to end in conviction, more so, when 28 years have
passed since inception and when the original case record is not traceable. The Assistants in
the office of the Court of the Sessions Judge failed to trace out the case record of CR Case
No. 6/1996. The learned Sessions Judge has observed in the order dated 03.05.2023 that a
letter was submitted on 19.01.2001 by H S Chopra, DSP, CBI SP SIU.XI New Delhi, wherein
he has stated that- the brief case containing the original documents and the statements of
the witnesses were stolen in the train, while travelling from Guwahati to New Delhi. It was
further observed by the learned Sessions Judge that-
“The fact remains that there is no original case record before this Court with
the order sheets of the then Presiding Officer/Officers with the copies of framing
charge and evidence recorded etc. Therefore, this Court is fully handicapped and not
in a position to proceed further in the case to take case to its logical end (Annexure-
10).”
20. Thus, the grievance of the petitioner narrows down to-
the allegation that the original case record could not be produced in the interest
of a fair trial,
the petitioner has been detained on unfounded assumption as the petitioner is
not the owner of the vehicle, which was sold off, and, thereafter, the vehicle is
changed and hence, there were numerous owners of the vehicle,
this case has been procrastinating since 1994 for various reasons, infringing the
constitutional rights to a speedy and a fair trial,
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the charge sheet itself reflects the non-challant manner in which the
investigation was conducted as it has been categorically mentioned in the charge sheet
that S.I.T. Kalita and Durga Mohan were negligent, and failed to ensure proper
detention of the handyman and the driver of the vehicle, carrying the contraband,
entailing the search and seizure of the vehicle not on the date when the vehicle was
intercepted, but on the following date in derogation to Section 41 (2) and 42 of the
NDPS Act,
the truck was searched and the contraband seized not at the place where it was
intercepted, i.e., PO, but in the Police Station where the truck was taken and parked
and there is not even a scintilla of evidence to prove that the contraband was loaded in
the truck with the consent of the owner, i.e., the present petitioner, who is not the
present owner, but the original owner of the aforementioned truck, which was initially
registered in the petitioner’s name as Truck No. NLK-8535 in the year 1980, but at
present, the truck number is UHZ-1728.
21. It is finally submitted that the petitioner’s right to personal liberty has been curtailed as
the petitioner has been languishing in the jail since 26.09.2022, till date. On the
aforementioned ground alone, this case is liable to be set aside and quashed.
22. The order dated 05.10.2023, impugned by the petitioner was stayed by this Court, vide
order dated 16.10.2023. The scanned copies of the Lower Court Records have been received,
but the order is not to be found in the case record nor has any copy of the order been
annexed along with the petition.
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23. Flaying the petition, the CBI has submitted a written objection, contending, inter alia,
that 2660 kgs of ‘ganja’ in 241 packets were kept concealed under the coal, transported
through the truck bearing Registration No. UHZ-1728, which clearly indicates that this is not a
case to be set aside and quashed. It is an admitted fact that some documents have been
missing, but the case record has been re-constructed and the trial will proceed in its due
course. After intercepting the vehicle and recovering the contraband, the Tezpur PS Case No.
211/1994 was registered by Inspector N N Buragohain against the driver, handyman and
owner of the truck. Final charge sheet was laid against Mohan Singh-driver and Ramesh
Chandra Jaiswal-the owner of the truck. The secret information was reduced to writing in the
General Diary at Serial No. 423 and SI DM Brahma and T Kalita were detailed to intercept the
truck on the basis of the secret information.
24. After interception of the truck at Kaliabhumura Bridge, the same was taken by the
investigating team to Tezpur Police Station as per General Diary Entry at Serial No. 151 dated
09.04.1994. The driver and the handyman, however, managed to escape in the pretext of
having tea and the investigating team failed to apprehend them. On the following day, i.e., on
10.04.1994, the truck was searched by Inspector N N Buragohain, in presence of the
Executive Magistrate, Sri S K Deka and other independent witnesses, namely, Kabir Modhi,
Radha Binod Choudhury, Md Saber Ali Sheikh and Anil Saraf, entailing recovery of 2660 kgs of
‘ganja’, kept in 241 packets concealed under the coal. These articles apart from the related
documents of the truck were seized and samples were drawn and forwarded to the Forensic
Science Laboratory (at present, DFS), for chemical examination. The sample tested positive
for ‘ganja’.
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25. During investigation, it was unearthed that the driving licence was in the name of
Mohan Singh, a resident of Cuttack, but the licence was not issued by the licencing authority
of Cuttack. Furthermore, the investigation has revealed that as per the record of RTO,
Varanasi, the Registration No. UHZ-1728, is allotted to a Moped, registered in the name of
Rajinder Prasad, Son of Radheshyam, R/o D-36, 239. August Kunda, Varanasi, with
Engine No. 11041285 and registered with the RTO, Varanasi, in 1985 and is still in the name
of Radheshyam.
26. Investigation has also disclosed that the permit recovered from the Truck No. UHZ-
1728, on 10.04.1994, was in fact, issued by RTO, Varanasi in the name of Punnithara Mathew
Pal, R/O Imarte Road, P.S.-Katra, Mirzapur, for his Truck No. AP-16U 2070, registered with
RTO, Vijaywada and NOC was issued for registration of this vehicle with DTO, Mirzapur, under
the administrative control of RTO, Varanasi, and was valid from 25.03.1992 up to 24.03.1994.
Investigation further disclosed that the truck UHZ-1728 (which was carrying 2660 kgs of
‘ganja’), was sold for an amount of Rs. 1,00,901/-, to Sri Kaushik Saikia through tender on
13.04.1999, as per order of the learned Special Judge, Tezpur, and was finally registered as
AS-12A-5430, in the name of Kaushik Saikia and later in the name of Rani Hazarika, to whom
Kaushik Saikia had sold the truck, in October, 1999. This truck bears the Chassis No.
344073086495. It has been unearthed through investigation that the aforesaid Chassis No.
bearing Engine No. 692-DO1-92296 is a Tata make model SE/42, which was manufactured by
Talco, Jamshedpur, in the year 1980. This Chassis No. was dispatched to Dimapur from
Jamshedpur, on 19.11.1980. This Chassis number was sold by M/s Surana Motors Private
Limited, Dimapur, Nagaland, on 16.12.1982, to Sri Dhan Singh, i.e., the present petitioner,
Son of Dhupan Singh, R/o Railway Gate, Dimapur, Nagaland. The said Chassis No. was under
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hire-purchase agreement with the State Bank of India, main branch, Dimapur, which has
sanctioned a loan of Rs. 1 lac, vide Loan Account No. 19/56 and which was sanctioned in
December, 1980 to Sri Dhan Singh and the same was cleared in April, 1983. The Chassis No.
was registered with RTO, Kohima, on 05.11.1981, in the name of the present petitioner and
was allotted Registration No. NLK-8535 and Road Tax was paid up to 31.03.1987.
27. Investigation has further revealed that this Chassis No. was also registered with RTO,
Wokha, in the name of Sri Dhan Singh, as Vehicle No. NLW-1875, without obtaining the NOC
from RTO, Kohima. Thereafter, this Chassis No. was again registered with RTO, Wokha, in
1991, in the name of one Anil Kumar Singh, R/o Dimapur, as Vehicle No. NLW-6315, based on
the transfer of RC Book of Truck No. UPT-4892, registered with DTO, Etah (UP). The Chassis
No. and the Engine No. of the Truck Bearing RC No. UPT-4894 is the same, which has been
registered with the RTO, Kohima, as Vehicle No. NLK-8535 and NLW-1875 and the year of
manufacture has been shown as 1985 and accordingly, in the registration particular of Truck
No. NLW-6315, the year of manufacture has been shown as 1985, whereas this Chassis was
manufactured by Talco, in 1980. The Vehicle No. NLW-6315 was transferred in the name of
Sri Mohinder Singh, Son of Late B Singh, R/o Bhagzan, District-Karbi Anglong, with a
temporary address of Merapani District, Golaghat and this vehicle was further transferred and
registered in the name of Mohinder Singh, Son of Late B Singh, with DTO at Golaghat, under
the Registration No. AS-05-1750.
28. It was unearthed during investigation that no person named Anil Kumar Singh had ever
resided at Dimapur. Similarly, it has been unearthed that no person in the name of Mohinder
Singh, Son of Late B Singh had ever resided at Baghjan or Merapani.
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29. During investigation, no evidence has been brought on record to show that Chassis No.
344073086495 was sold by Dhan Singh to Anil Kumar Singh or to Mohinder Singh, nor any
evidence has been brought on record to show that Dhan Singh has lodged any FIR about the
theft of any vehicle bearing this Chassis number. Investigation has revealed that the present
petitioner, Dhan Singh was in possession of this truck from the date he purchased the truck
till the seizure of the truck bearing Registration No. NLK-8535 and NLW-1875, which still
exists in his name as per the record of RTO, Kohima and DTO, Wokha.
30. It is alleged that Dhan Singh got his vehicle No. NLK-8535 insured with the Oriental
Insurance Company, Dimapur, for the period ending of 1988.
31. Investigation has also further revealed that Dhan Singh was apprehended along with
his father Late Dhupan Singh on 14.11.1987 by the Customs Department, for possession of 5
kgs of ‘ganja’, 1 kg. 49 grams of opium, recovered from his residence at Naoian and both
were tried by the Court of learned Special Judge, at Golaghat and were acquitted vide order
dated 30.09.1991.
32. It is further contended that investigation has further revealed that Dhupan Singh
purchased Truck No. NLK-6527, which was financed by the SBI Main Branch, Dimapur, for Rs.
45,000/-, vide Loan Account No. 20/21, sanctioned on 30.09.1981, on the guarantee of Sri
Dhan Singh. The Bank filed a recovery suit against Dhan Singh and Dhupan Singh and
obtained a decree on 30.10.1989, which could not be executed. Investigation has further
revealed that this truck was transferred and registered in the name of Gopal Singh, Son of
Dhupan Singh, in the record of RTO, Kohima, on 30.03.1987, on the basis of Sale Letter of Sri
Dhupan Singh, without clearing the bank dues and obtaining the NOC from the Bank. This
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vehicle was later on transferred and registered in the name of Gopal Singh, Son of Dhupan
Singh, with the RTO, Wokha, as Truck No. NLW-2122, without NOC from RTO, Kohima. Gopal
Singh died as a result of drowning in the year 1994, as per report lodged by Sri Dhan Singh
with the Police Station at Naojan, and thereafter, the truck of Gopal Singh was in the
possession of Dhan Singh, the present petitioner, who has also taken this vehicle on
indemnity bond of Rs. 1 lac, on 13.06.1996, submitted in the Court of the CJM, Golaghat. The
present petitioner was asked to produce this vehicle in the office of the DFO, Golaghat, as per
order of the CJM, Golaghat, vide order dated 09.09.1996. The petitioner had taken
permission from the Border Magistrate, B Sector, Dhanasiri, for lifting agricultural goods in
Vehicle No. NLW-2122, which was valid for the period from 20.09.1995 up to 31.09.1996.
This truck was also caught carrying 1050 kgs of ‘ ganja’ on 02.05.1997 and an FIR was
registered as Dimapur East PS Case No. 192 of 1997, against Kamal Singh, Son of Dhupan
Singh, who was driving the truck No. 2122 and charge sheet was laid by the Deputy
Commissioner (Judiciary), at Dimapur.
33. Investigation has revealed that Kamal Singh was killed in an army encounter on
17.06.1997 and FIR No. 5097 was lodged by the Army and counter FIR No. 51/1997 was
lodged by the wife of Dhan Singh against the Army Officer and the proceeding arising out of
the FIR is pending in the Court of SDJM, Sarupathar. The Truck No. NLW-2122 was ordered to
be released by the Deputy Commissioner, Dimapur, on a surety of Rs. 1 lac and this truck has
been released in favour of Gopal Singh, who died in the year 1994. It has been unearthed
that this Truck No. NLW-2122 was sold by Dhan Singh to Bhutia Kabadiwala, resident of
Bokajan, in the year 1999, after being repaired by Hira Mistri of Bokajan. Investigation has
also revealed that Kamal Singh, Gopal Singh and Dhan Singh were owners of one truck each
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and they got their trucks repaired by Mistri at Bokajan. After 1994, Dhan Singh never got his
truck repaired at Bokajan and the Truck No. NLW-2122 was repaired by Hira Mistri in the year
1999. During investigation, the identity of the driver and handyman of the Truck bearing
Registration No. UHZ-1728, intercepted on 04.09.1994, could not be established as Dhan
Singh could not give the details of the driver and the handyman of the truck.
34. It is further contended by the learned Special Public Prosecutor (Spl. P. P., for short), Mr
M Haloi that search was conducted in the residential premise of Dhan Singh at Village-
Naojan, which resulted in the recovery of R C Books of Vehicles numbered as NLW-1875 and
AS-05-1750, along with other documents. The documents were sent to GEQD, Shimla, for
expert opinion and it has been confirmed that the ‘ question writings are in the hands of Dhan
Singh’. It has also been unearthed through investigation that Sri Dhan Singh, Sri Gopal Singh
and Sri Kamal Singh used the service of one Sohak Mal, a broker from Dimapur for
registration of their vehicles with the RTO at Kohima, DTO at Wokha and DTO at Etah and
this has been confirmed by Sri P K Gupta, a broker at Dimapur. The whereabouts of Sri Sohak
Mal is not known at present.
35. It is further contended that the ‘ganja’ was time to time sold at 2 miles, Bokajan, where
Mohan Singh, cousin of Dhan Singh had constructed a kaccha house, along with a godown on
the land of Sri Satprakash Singh, resident of Bokajan, but Sri Mohan Singh has left the place
in the year 1996. It is further contended that the ganja’ was usually purchased from
unknown Nagas, who could not be properly identified. It is reiterated that the documents
recovered from the residence of Sri Dhan Singh, i.e., the present petitioner, extract of the
judgment in the Golaghat case and also bank loan papers were forwarded to GEQD, Shimla
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and it has been opined that the handwritings are of the present petitioner, Sri Dhan Singh.
36. I have considered the submissions at the Bar with circumspection.
37. It is true that the truck was intercepted on 09.04.1994, but the articles were seized on
the following day. It cannot be denied that due to the apathy of the investigating team, the
driver and the handyman of the Vehicle No. UHZ-1728, managed to escape. The investigation
led to the owner of the vehicle, Ramesh Chandra Jaiswal and the driver, Sri Mohan Singh.
Charge sheet was filed on 05.02.1996, but on 30.09.1999, the learned jurisdictional Court
observed that the investigation was not properly conducted and the CBI was brought in as
the new investigating agency and the CBI submitted charge sheet and charges were framed
on 08.07.2002, to which the petitioner pleaded not guilty and claimed to be tried.
38. Learned counsel for the petitioner has submitted that the present petitioner is the
original owner, who purchased the vehicle way back in the year 1984 from the showroom, but
the vehicle was subsequently sold. The vehicle has changed hands and at present, he is not
the owner of the vehicle any more. This is a fit case to invoke the inherent jurisdiction under
Section 482 of the CrPC as possibility of conviction appears to be remote and bleak as the
charge sheet is based on photocopies of the documents, as the original case record was lost
or stolen. All the statements under Section 161 of the CrPC are also Photostat copies. The
CBI has re-constructed the documents, which are Photostat copies. The petitioner is not an
FIR-named accused.
39. Learned counsel for the petitioner has reiterated that there is not a scintilla of evidence
that the petitioner was aware that the Truck No. UHZ-1728 was carrying 2660 kgs of ‘ ganja’
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in 241 packets. This Court has noted the fact that the vehicle was searched on the following
day, after interception of the truck on 09.04.1994. This Court has also noted the fact that only
12 out of 51 witnesses have been examined so far and two witnesses were examined in
presence of the petitioner, whereas other witnesses were examined in absence of the
petitioner, as per procedure under Section 299 of the CrPC.
40. It is an admitted fact that the case record was stolen and now, the Court has to rely on
a reconstructed case record.
41. It is true that the seizure list was prepared after 24 hours, but are these grounds
sufficient to set aside the proceeding relating to a serious offence, wherein the petitioner is
alleged of being involved in transportation of 2660 kgs of ‘ ganja’, concealed under a truck
load of coal.
42. It is contended that the petitioner has been facing trial for a prolonged period and the
order in connection with this case was passed on 13.04.1999. The re-constructed Trial Court
Record reveals the signature of the learned trial Court up to the order dated 08.07.2002 and
thereafter, since 09.09.2002, there is no signature affixed by the trial Court, which reflects the
nature of trial against the petitioner.
43. I have scrutinized the trial Court records.
44. From the order dated 26.05.2003, it appears that the learned Special Judge has affixed
his signature. However, this is a petition under Section 482, read with Sections 397/401 of the
CrPC, read with Article 227 of the Constitution of India. This Court is not required to delve
into the entire evidence and intricacies of the trial at this stage, but to adjudge the propriety
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of the impugned order dated 02.03.2023, passed by the learned Special Judge, in CR Case
No. 6/1996, in order to set aside the proceeding, if the proceeding appears to be an abuse of
the process of the Court, as the plausibility of conviction appears to be remote and bleak or
to secure the ends of justice.
45. It is further contended that the order dated 03.05.2023, passed in CR Case No. 6/1996,
reflects that –
“………….the supplementary case record produced before this Court
also shows an original letter dated 19.01.2001, submitted by H S Chopra, Deputy
Superintendent of Police, CBI SPE SIU.XI New Delhi, wherein he has submitted before
the Court that the BRIEFCASE, containing the original documents and the statements
of the witnesses, was stolen in the train when travelling from Guwahati to New Delhi,
but he has submitted the photocopies of the documents and the examination of the
witnesses to the Court for record purpose……..”
46. The learned Special Judge directed the Dealing Assistant, including the Sheristadar and
those dealing with the case record to make every endeavour to trace out the original case
record and the IO, Sri H S Chopra was directed to submit a fresh report. The order dated
17.05.2023, passed by the learned Special Judge clearly reflects that the original case record
of CR Case No. 6 of 1996 could not be traced out, but charges were framed on the basis of
the certified copies annexed with the supplementary charge sheet submitted on 20.10.2000.
The original documents collected from this Court were stolen from the possession of DSP H S
Chopra, on 22.09.2000, while he was travelling by train from Guwahati to New Delhi. It is
arduously submitted by the learned counsel for the petitioner that there is no possibility of
Page No.# 19/27
conviction as this case is entirely based on the copies of the case record and not on the
original case record. Prior to the order dated 28.09.2022 of CR Case No. 6/1996, all the order
sheets, relevant documents in connection with this case were lost. The order sheets of the
orders dated 03.05.2023, 08.07.2002, 09.09.2023, 04.01.2023 and 03.05.2023, reveal that
the order sheets do not contain the signatures of the Presiding Officer although the order
sheets were stamped. The evidence recorded on 02.01.2003 and on subsequent dates,
including 21.06.2004, were not signed by the Presiding Officers or the Special Judges holding
office at that point of time.
47. On the contrary, the learned Spl. P.P. has raised objection stating that there are
signatures on the orders dated 08.07.2002 and as some of the evidences recorded are copies,
the Copy Assistant has stamped as signed illegible. Moreover, these intricacies cannot be
considered while dealing with a petition under Section 482, read with Section 397/401 of the
CrPC.
48. It is contended by the learned Spl. P.P., CBI, that the petitioner is a history sheeter and
he has manipulated the truck number and the chassis number for umpteenth time. It cannot
be ignored that the petitioner has earlier faced trial in connection with transportation of
“ganja”. Through this petition, the petitioner cannot pray for bail, and this case ought to
proceed till its logical end.
49. It is submitted by the learned Spl. P.P., that while filing this revision petition, the
provisions of NDPS Act have not been properly followed. The petitioner has challenged the
order dated 02.03.2023, passed by the learned Special Judge, which is an order rejecting the
bail petition and rightly so, when the petitioner disappeared on 26.04.2006. The petitioner
Page No.# 20/27
was produced before the Court on 26.09.2022, on the strength of a non-bailable warrant
issued against him on 26.05.2003 and 16.06.2003.
50. It is true that the learned Special Judge has spelt out sound reasonings while rejecting
the petition with prayer for bail.
51. It is also true that as submitted by the learned Spl. P.P., the petitioner has challenged
the propriety of this order dated 02.03.2023, rejecting the bail petition of the petitioner. While
rejecting the bail petition, the learned trial Court has observed that the petitioner has been
absconding for about 16 years since 26.04.2006, till his arrest on 28.09.2022.
52. It is further submitted by the learned Spl. P.P. Mr M Haloi that the petitioner could have
preferred a subsequent bail application instead of erroneously filing the criminal revision
petition against the impugned order dated 02.03.2023, passed in CR Case No. 6/1996.
53. It is submitted by the learned Spl. P.P. that the entire Case Diary was prepared by the
CBI from carbon copies of the case record, which are copies of the original case record. The
Case Diary was handed over on 30.09.1999 after direction of the learned Sessions
Judge/Special Judge to conduct a de novo trial by the CBI. On 27.07.2000, the petitioner was
arrested by the CBI and on 21.10.2000, charge sheet was submitted by the CBI, but prior to
submission of charge sheet, the documents were stolen from the briefcase and an FIR was
lodged by the CBI in connection with the incident of the stolen case record. As admitted by
the learned counsel for the petitioner, the Hon’ble Supreme Court, vide order dated
13.03.2023, in Criminal Appeal No. 381 of 2003, arising out of Special Leave Petition No.
4126/2003, has set aside the order passed by this Court, granting bail to the petitioner. So
Page No.# 21/27
stating, it is submitted by the learned Spl. P.P., that as the Hon’ble Supreme Court has
cancelled the bail, it is discernible that the order of the Hon’ble Supreme Court indicates that
at this juncture, at least, it cannot be conclusively decided that possibility of conviction
appears to be remote and bleak and further proceeding of CR Case No. 6/1996, will be an
abuse of the process of the Court.
54. The learned counsel for the petitioner has vehemently refuted that the original case
record was not available when the petitioner’s bail was cancelled by the Hon’ble Supreme
Court. At that point of time, the original record was available. It is discernible from the order
of the learned Special Judge/Sessions Judge dated 01.06.2005, that the original case record
was not missing at that point of time, to which learned Spl. P.P. has raised objection, stating
that this is not true. It is apparent from the order that after 01.06.2005, no evidence was
adduced by the CBI. Further regarding the various numbers of the truck seized in connection
with this case, the learned counsel for the petitioner has submitted that the earlier statement
of the DTO A K Baruah, PW-1, reveals that the engine number was not available, but the
casing number was found and as no engine number was found, the owner could not be
identified, as the engine number was changed and thus, it cannot be conjectured that the
numbers of the same truck have been manipulated by the petitioner.
55. On the contrary, it is submitted by the Spl. P.P., that the petitioner was sleeping over his
rights and at this juncture, i.e., after 18 years, the petitioner cannot claim that further
proceeding of CR Case No. 6/1996 will be an abuse of the process of the Court.
56. It is further submitted that the submission of the learned counsel for the petitioner,
relating to non-compliance of the requirements of Sub-Sections (1) and (2) of Section 42 of
Page No.# 22/27
the NDPS Act, is a matter of trial. The vehicle carrying the contraband reflects different
numbers and non-existent owners, namely, Anil Kumar, Mahindra Singh etc. The engine
number and chassis number could be tracked down to a moped.
57. I find force in the submission of the learned Spl. P.P..
58. Relating to re-construction of records, the learned counsel for the petitioner has drawn
the attention of this Court to the- “Handbook on Practice and Procedure and Office
Procedure, 2017, Supreme Court of India, vide Chapter XXI, Page 189, Reconstruction”, which
reads as-
“1. It shall be ensured that record of a case is not lost or misplaced or mutilated by
rodents, termites or otherwise.
2. Where a record is lost, misplaced or mutilated, either fully or partially, from the
custody of any officer or official of the Registry, the matter shall immediately be reported to the
Registrar.
3. Any delay in reporting matter to the Registrar may invite adverse inference.
4. The Registrar shall cause such report to be circulated amongst all the officers and
officials of the Judicial branches of the Registry. If such record is in the possession of any
officer or official of the Registry, he shall immediately intimate the Registrar.
5. Every possible effort shall be made to trace the record.
6. Where the record could not be traced, the Registrar shall record a finding that the
record has been lost, misplaced or mutilated, fully or partially. The matter shall then be placed
Page No.# 23/27before the Chief Justice for appropriate orders, including orders for part or full reconstruction
of such record.
7. Where reconstruction of the record relates to the Court, it shall be reconstructed
by the Registrar and where it relates to the High Court. or lower Court, it shall be
reconstructed by the Registrar of the High Court or Presiding Officer of the lower Court under
the supervision of the District Judge, as the case may be.”
59. The learned Spl. P.P. has submitted that the records were re-constructed as per proper
procedure under order and supervision of the District Judge -cum- Special Judge.
60. The learned counsel for the petitioner has also relied on the decision of the High Court
of Judicature at Allahabad, in Mauji Lal & Others -Vs- State of U.P.; reported in 2022
SCC Online All 175, wherein it has been held and observed that-
“31. Law framed by Hon’ble the Apex Court as well as the High Courts on the law
point, i.e, where Lower Court Record is not traceable; reconstruction of same is not possible
and even retrial is not possible is to the effect that in such case, the judgment of the Trial
Court shall be quashed and appellant shall be acquitted for all charges.
32. Reasons for reaching to the aforesaid conclusion is that in the absence of
original record, it is not possible to arrive at a decision that impugned judgment passed and
sentence awarded against appellant is legally justified and in conformity with law. Where the
reconstruction of record is not possible which has been lost or destroyed, it is not legally
permissible for the Appellate Court to affirm the conviction of the appellant since perusal of
the record of the case is one of the essential elements of hearing of the appeal. Further,
appellant has a right to satisfy the Appellate Court that the material or evidence available on
record did not justify his/her conviction and this right cannot be denied to the appellant.
33. In view of the above mentioned discussions and observations and in light of
settled proposition of law propounded by Hon’ble Supreme Court of India as well as this
Page No.# 24/27High Courts, we are left with no other option but to quash the impugned judgment passed by
Trial Court and to acquit the appellant.”
61. Reverting back to this case, it is held that the facts and circumstances of this case are
not similar to the facts and circumstances of Mauji Lal’s case (supra). The appellant Mauji
Lal preferred the appeal as he was convicted and sentenced under Sections 302/34 of the
IPC. In the instant case, such a decision cannot be preempted at the stage of trial.
62. It is true that any accused deserves to be tried justly and speedy trial is inevitable if the
petitioner is behind bars, but at the same time, a case of serious nature cannot be truncated
suddenly and quashed, on the ground that original case records have been stolen and
possibility of conviction appears to be remote.
63. I would like to gainfully refer to the decision of Hon’ble the Supreme Court in State of
Haryana and Others -Vs- Bhajan Lal and Others; reported in 1992 SCC (Supp) 1
335, wherein certain guidelines have been laid down and held as-
“8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent
powers under Section 482 of the Code of Criminal Procedure, the following categories of
cases are given by way of illustration wherein such power could be exercised either to
prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined and sufficiently channelised and
inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even
if they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by
Page No.# 25/27police officers under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or ‘complaint and the
evidence collected in support of the same do not disclose the commission of any offence and
make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge. In the instant
case, the allegations made in the complaint, do clearly constitute a cognizable offence and
this case does not call for the exercise of extraordinary or inherent powers of the High Court
to quash the F.I.R. itself. [307B] State of West Bengal v. S.N. Basak, [1963] 2 SCR 52;
distinguished.”
64. The instant case does not fall in the category of the cases defined above, despite the
fact that the original records have been stolen and this case is solely based on re-constructed
and carbon copied records. The charges against the petitioner are grave in nature. There are
instances and allegations that the registration number UHZ-1728 is allotted to a moped
registered in the name of Rajendra Prasad, a resident of Varanasi, whereas the chassis
Page No.# 26/27
number of the same truck reveals that the petitioner is the original owner of the truck, which
was manufactured by TALCO, Jamshedpur and dispatched to Dimapur, on 19.11.1980.
Investigation has revealed that the same chassis number was registered with RTO, Wokha
and the original vehicle number, which was NLK-8535, in the name of the petitioner was
thereafter, changed to NLW-1875, without obtaining NOC from the RTO, at Kohima and
thereafter, it was registered in the name of Anil Kumar Singh, as Vehicle No. NLW-6315,
based on the transfer book of Truck No. UPT-4892 and all these numbers have been acquired
from RTO, Wokha and DTO, Etah (UP), RTO, Kohima, without obtaining NOC. The Vehicle No.
NLW-6315 was transferred in the name of Mohinder Singh. The investigation further revealed
that persons namely, Anil Kumar Singh or Mohinder Singh are non-existent. The petitioner
has been acquitted by the Special Judge, Golaghat, in a case relating to transportation of
‘ganja’.
65. The learned Spl. P.P. has also submitted that the petitioner’s brother, Late Kamal Singh,
who was killed in an encounter, was also involved in transportation of drugs. The petitioner
along with his father was also involved in transportation of contraband and so on and so
forth. When the petitioner’s brother, Kamal Singh was killed in an encounter, the petitioner’s
wife lodged an FIR against the army, which was registered as FIR No. 51 of 1997. Thus, the
antecedents of the petitioner may negate malafide and false incarceration and he is not
entitled to bail, more so, when this petition is filed under Sections 397/401, read with Section
482 of the CrPC and read with Article 227 of the Constitution of India.
66. I find force in the argument of the learned Spl. P.P..
67. It is true that although this case was registered against Mohan Singh and Ramesh
Page No.# 27/27
Chandra Jaiswal, they are not the owners of the vehicle bearing Registration No. UHZ-1728,
vis-à-vis, NLK-8535 and NLW-1875 and such other registration numbers. The submission of
the learned counsel for the petitioner cannot be ignored that trial is dragging at snail’s pace
and only 12 out of 51 witnesses have been examined so far. In the wake of the foregoing
discussions, at this stage, I am reluctant to quash the proceedings. Thereby, the petition is
dismissed with a direction to the learned trial Court to expedite the trial of C R Case No.
6/1996, arising out of GR Case No. 413/1994, Tezpur PS Case No. 211/1994.
68. In terms of the above observation, this criminal revision petition stands dismissed and
the order dated 16.10.2023, whereby the impugned order dated 05.10.2023, passed by the
learned Special Judge, Sonitpur, Tezpur in CR Case No. 6/1996, arising out of GR Case No.
413/1994, Tezpur PS Case No. 211/1994, dated 10.04.1994, corresponding to CBI Case No.
RC-6/99-SIU, XI/CBI/New Delhi dated 29.10.1999, challenging in IA(Crl.) No. 1011/2023, was
suspended, stands recalled.
69. The Criminal Revision Petition stands disposed of.
JUDGE
Comparing Assistant
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