Calcutta High Court (Appellete Side)
Laltu Prasad vs The State Of West Bengal on 6 September, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 330 of 1992
Laltu Prasad
Vs.
The State of West Bengal
Amicus Curiae : Mr. Debabrata Roy
For the State : Mr. Ranabir Roychowdhury
Mr. Arindam Sen
Heard on : 29.8.2016
Judgment on : 06.09.2016
Md. Mumtaz Khan, J. :
This appeal is preferred by the appellant assailing the judgment, order of conviction and sentence dated December 17, 1991 and December 18, 1991 respectively passed by the learned judge 9th Bench, City Sessions Court, Calcutta in Sessions Trial No. 1 of September 1991 arising out of Sessions Case No. 8 of 1990. By virtue of the impugned judgment appellant was convicted for commission of the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and was sentenced to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1 lakh in default to suffer rigorous imprisonment for 3 years more and the period of detention already undergone by the appellant was directed to be set off under the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) Prosecution case, in brief, is as follows:-
On February 12, 1987 at about 11.35 hours, P.W.7 by producing the appellant at Burtolla P.S. along with 3 gms. of 'Heroin', made one G.D. Entry being No. 840 dated February 12, 1987 at the said P.S. stating that pursuant to source information he arrested appellant at about 11.25 hours from the crossing of Beadon Street and Bidhan Sarani having in possession of 3 gms. of 'Heroin' in 3 cellophane paper packets kept concealed in his shirt and accordingly he seized the same by a seizure list in presence of P.W.1 and P.W.2 for prosecuting the appellant for commission of the offence under Section 27 of the N.D.P.S. Act.
On the basis of the above G.D. Entry, P.W.7 himself started Burtolla P.S. Case No. 50 dated February 12, 1987 under Section 27 of the N.D.P.S. Act against the appellant and also took up investigation of this case and thereafter on completion of the investigation/enquiry he submitted enquiry report on January 16, 1989 under Section 21 of the N.D.P.S. Act against the appellant.
Charge was framed on August 8, 1991 against the appellant under Section 21 of the N.D.P.S. Act and after the appellant pleaded not guilty to the charge, trial proceeded.
Prosecution examined 7 witnesses and also produced and proved certain articles and documents and thereafter on completion of trial and after examining the appellant under Section 313 Cr.P.C. learned Trial Court passed the impugned judgment and order.
It is submitted by Mr. Debabrata Roy, learned amicus curiae, that the impugned judgment, order of conviction and sentence cannot be sustained in law as the mandatory provisions relating to search and seizure of the contraband article as also provisions of Section 42 as also Section 50 of the Narcotic Drugs and Psychotropic Substance Act had not been complied with in the instant case and there was also anomaly with regard to the weight of the seized article in between the Malkhana register (Ext.5), Seizure list (Ext.6), GDE (Ext.7), FIR (Ext.8) and the evidence adduced by the prosecution. According to Mr. Roy as per the Malkhana Register, forwarding report (Ext.4) and the evidence adduced by P.W.7, 3 gms. of 'Heroin' were sent for chemical examination but in the report of the expert (Exhibit 2) the samples sent for chemical examination has been described as 1.5085 gms. and there was also unexplained delay in sending the sample for chemical analysis which raised doubt about the prosecution story. It is also submitted by Mr. Roy that complainant had also acted as I.O. in the instant case which was not permissible under the law. According to Mr. Roy, Ld. Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned judgment and order of conviction and sentence.
Reliance is placed by Mr. Roy on the decisions of Megha Singh Vs. State of Haryana, reported in (1996) 11 Supreme Court Cases 709 and State by Inspector of Police, Narcotic Intelligence Bureau, Madurai Vs. Rajangam, reported in (2010) 15 Supreme Court Cases 369 in support of his submission.
Mr. Ranabir Roychowdhury, learned counsel representing the state, did not draw our attention to any evidence on record to take a different view.
We have given our thoughtful consideration to the submissions made by the learned Counsels appearing for the respective parties and gone through the evidence and documents on record including the complaint/GDE, formal F.I.R., seizure list, Malkhana register, forwarding report, Analyst report, inquiry report, charge framed amongst other materials for examining propriety of the impugned judgment, order of conviction and sentence.
The learned Court below took into consideration mainly the evidences of P.W. 1, P.W.2 and P.W. 7 to prove the search, recovery and seizure of 'Heroin' from the possession of the appellant and also took into consideration the chemical analysis report where the expert had opined that the sample sent for analysis to contain 'Heroin' to arrive at the conclusion that prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt.
Regarding non-compliance of the mandatory provisions of law relating to search and seizure of the contraband articles as also the provisions of Section 42 and Section 50 of the Narcotic Drugs and Psychotropic Substance Act, we have carefully scrutinized the evidence brought on record and perused the judgment of the learned Trial Court.
It was evident from the evidence of P.W.7, Chittaranjan Mukherjee, the then S.I. of police Burtolla P.S., that he had corroborated the prosecution case. He had specifically stated that search and recovery of 'Heroin' was made in presence of P.W.1 and P.W.2. According to him on February 12, 1987 he left Burtolla P.S. at about 8.30 hours along with S.I. R.N. Thakur for round duty and in pursuance of a source information he arrested the accused/appellant at about 11.25 hours from the crossing of Bidhan Sarani and Beadon Street on the western pavement of Bidhan Sarani and on search in presence of P.W.1 and P.W.2 he recovered 3 gms of 'Heroin' drugs in 3 cellophane wrapped packets from his shirt pocket and accordingly he seized those the articles by a seizure list (Ext.6), measured it with the scale and measurement which he had with him and thereafter packed and sealed at the spot and kept the same inside a match box (Mat. Exbt. 1) and obtained the signatures of the witnesses and the accused on the seizure list and also on the paper wrapped around the packets and thereafter returned back to the P.S. and deposited the seized articles in the P.S. Malkhana and made Entry No. 1277 dated February 12, 1987 in the Malkhana register (Ext. 5). The above statements of P.W.7 relating to search and seizure of 'Heroin' from the shirt pocket of the accused/appellant found corroboration from P.W.1 and P.W.2, witnesses to the seizure of contraband articles who also identified their respective signatures (Ext.1 and 1/1) on the seizure list. However during cross-examination P.W.1 admitted that he signed on the seizure list without reading the contents of the same but did not agree to the defence suggestion that he was not present at the place of occurrence. Interestingly, no such paper wrapper by which seized contraband articles were wrapped and signatures of the witnesses were obtained, as claimed by P.W.7, was produced either before P.W.1 or P.W.2 for their identification. Even no such seized article was produced before P.W.2 for his identification. P.W.3 is the Senior Scientific Officer, Central Public Health and Drugs Laboratory (Drug Wing) under whose supervision the sample received was analysed and the report (Ext. 2) was prepared. P.W.4 is the then officer-in-charge of Burtolla P.S. who forwarded the seized articles to the Drug Control of West Bengal under his signature on April 3, 1987 (Ext. 4). P.W.5 is the Inspector of Drug, West Bengal Government who admitted that on April 4, 1987 his office received seized articles in connection with Burtolla P.S. Case No. 50 dated February 12, 1987 for analysis and report and acknowledgement of the receipt of the article was given. P.W.6 is the A.S.I. of Police of Burtolla P.S. who produced the Malkhana register to prove the Entry No. 1277 dated February 12, 1987 made therein (Ext. 5) by P.W.7.
Thus from the above, it was apparent that search was made at a public place in presence of independent witnesses and contraband article was recovered and seized from the possession of the accused/appellant. So the provisions of Section 43 of the Narcotic Drugs and Psychotropic Substance Act will apply and not Section 42 of the said Act and as such there was no requirement of the officer conducting search to record the grounds of his believe as contemplated by the proviso to Section 42 of the N.D.P.S. Act. Reference may be made to the decision of State of Haryana Vs. Jarnial Singh and others reported in (2004) 5 SCC
188. The above principle of law has already been discussed by us in the matter of Biswajit Das and Anr. Vs. State of West Bengal reported in (2015) 3 Cal LT 359 (HC).
Regarding applicability of the provisions of Section 50 of the NDPS Act regarding search of an accused in person in presence of a Magistrate or a gazetted officer duly authorised under the provision of sub-section (1) of Section 42 of the NDPS Act. The above provision is quoted below:-
"50. Conditions under which search of persons shall be conducted. -
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of Section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
In State of Punjab vs Baldev Singh, reported in (1999) 6 SCC 172, it has been held by a Constitution Bench of the Hon'ble Supreme Court that failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused.
A Constitution Bench of the Hon'ble Supreme Court in the matter of Vijaysinh Chendubha Jadeja vs. State of Gujarat, reported in (2011) 1 SCC 609 held, inter alia, that the provision of sub-section (1) of Section 50 of the NDPS Act, makes it imperative for the empowered officer to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate; failure to inform the suspect about the existence of his above right would cause prejudice to him. In the instant case, there was no evidence on record that appellant was at all apprised and/or given any option about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. So it can be safely held that no notice was given to the appellant/accused before search of his person nor he was searched in presence of a Gazetted Officer or a Magistrate. This clearly shows non-compliance of the provisions Section 50 of the N.D.P.S. Act. Thus we find that procedure relating to search and seizure of the contraband articles had not been properly adhered to which render the recovery of the illicit article suspect and vitiate the conviction and sentence.
The learned Court below did not take into consideration the breach of the above mandatory provision of the statute to pass the impugned judgment.
With regard to the anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR and the report of the analyst, we find that both in the FIR and the seizure list the weight of the articles seized had been given as 3 ml. gm. which according to P.W.7 was a mistake on his part as instead of 3 gm. 3 ml. gm. had been recorded in the FIR and the seizure list. From the entry made in the malkhana register (Ext. 5) it appears that the entire seized articles were sent for chemical examination but the analyst report (Ext. 2) shows weight of the articles received for examination was 1.5085 gm. Prosecution has failed to explain the above anomaly in the weight of the seized articles. Seizure of the contraband article was made on February 12, 1987 but it was sent for chemical analysis on April 3, 1987 only and this inordinate delay in sending the article for chemical examination has also not been explained by the prosecution. Furthermore, P.W.7 is the complainant as well as the investigation officer of this which is against the principle of fair and impartial investigation. Reference may be made to the decision of Megha Singh Vs. State of Haryana reported in (1996) 11 Supreme Court Cases 709 and the relevant portion of the above decision is quoted below:
"4. .................. We have also noted another disturbing feature in this case. PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
The ratio of the above case was also followed in the matter of State by Inspector of Police, Narcotic Intelligence Bureau, Madurai Vs. Rajangam, reported in (2010) 15 Supreme Court Cases 369.
The learned Court below did not take into consideration the above aspect of the matter.
Therefore, considering the entire facts and circumstances of the case in the light of the discussions and observations made herein above with regard to the non adhering to the procedure relating to search and seizure of the contraband articles, non-compliance of the provisions of Section 50 of the NDPS Act, anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR and the report of the analyst, unexplained inordinate delay in sending the contraband article for chemical examination, complainant himself acting as the investigating officer violating the principles of fair and impartial investigation, lead us to interfere with the impugned judgment. The impugned judgment, order of conviction and sentence are quashed and set aside.
This appeal is allowed. The appellant is directed to be set at liberty forthwith, unless wanted in connection with any other case.
Copy of this judgement along with the lower court records be sent down to the trial court immediately by special Messenger for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)