Calcutta High Court
Tathagata Sarkar @ Bumbi And Anr. vs State Of West Bengal [Alongwith C.R.A. ... on 3 September, 2004
Equivalent citations: 2005(1)CHN72
JUDGMENT Gorachand De, J.
1. All these four appeals are directed against the judgment and order of conviction dated 5.3.2003 and order of sentence dt. 6.3.2003 passed by the learned Judge of the Special Court under NDPS Act, South 24-Parganas, Alipore in Trial No. 1(3)2002. By the said judgment, the learned Special Judge found all the six appellants guilty under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, for brevity) and sentenced each of them to suffer R.I. for three years and six months and also to pay a fine of Rs. 20,000/- each, in default, to suffer R. I. for six months more. However, there was a direction to set off the period of imprisonment undergone by the convicts in imprisonment from the substantive sentence. It was also further ordered that the seized Tata Sumo vehicle bearing No. W. B. - O2G-2088 be confiscated to the State under Section 60(3) of NDPS Act. Similarly an order was also passed for confiscation of the seized cash totalling to Rs. 14,520/-.
2. Against the said order of conviction, the convict Tathagata Sarkar @ Bumbi and Ashok Roy @ Chingri filed C. R. A. No. 124/2003, the convict Sanjib Kr. Das filed C. R. A. No. 97/2003, the convicts Sanjay Biswas and Bapi Basak filed C. R. A. 80/2003 and the convict Anil Khanra, driver of the vehicle, filed CRA No. 106/2003. On consent of both sides, all these appeals were taken up for analogous hearing and this judgment do govern the fate of all the four appeals.
3. The prosecution case in brief is that on 7.9.2001 at about 2.25 p.m. S. I. Pranab Moitra on the basis of secret information of the fact that the narcotic drugs were being transported from Calcutta towards Pailan by one deep blue coloured Tata Sumo vehicle bearing No. WB-O2G-2088, recorded the G. D. Entry at Behala P. S. and the fact was intimated to the I. C, Behala P. S. Thereafter the Inspector of Behala P. S. Sri Subhas Sen along with S. I. Somdeb Banerjee, S. I. Shri Suriya Sankar Mondal and other police force proceeded towards the corssing of Seal Thakurbari Road and James Long Sarani under Behala P. S. and two local witnesses viz. Billey Mondal and Kesto Das were collected to witness the search and seizure. Then the police force intercepted the said Tata Sumo at about 3.05 p.m. and disclosed the identity of the I. C., Behala P. S. to the occupants of the vehicle and an option was given to them to get themselves searched before a Magistrate or a Gazetted Officer before conducting their personal search. But all the occupants of the vehicle remained silent and there was a suspicion of carrying narcotic drugs.
4. S. I. Pranab Moitra contacted Shri Subhankar Chatterjee, Deputy Superintendent of Police (Town), South 24-Parganas with a request to come to the place of occurrence along with a Magistrate for conducting personal search of the occupants of the vehicle. Shri Subhankar Chatterjee could not procure attendance of any Executive Magistrate for which he personally arrived at the place of occurrence along with S. I. Shri Pranab Moitra at about 3.25 p.m. and it was disclosed to the occupants of the vehicle that Shri Subhankar Chatterjee was a Gazetted Officer. Thereafter, personal search was conducted on Tathagata Sarkar @ Bumbi in presence of the said Gazetted Officer and public witnesses by the I. C, Shri Subhas Sen. 30 paper purias containing heroin were recovered from his possession along with cash of Rs. 8,500/-. The weight of 30 paper purias was found to be 5.330 gm. In the same manner, the person of Ashok Roy @ Chingri was also searched and from him 30 paper purias containing heroin and cash of Rs. 6,020/- were recovered. Total weight of 30 purias was 5.010 gms. No other incriminating article, however, could be found from the possession on personal search of the rest of the four occupants of the vehicle. Thereafter, the vehicle was also searched and 140 paper purias of heroin weighing about 24.640 gms kept in polythene bag and concealed under coloured cloth in the middle seat of the vehicle were recovered.
5. The articles recovered from the personal possession of Tathagata Sarkar @ Bumbi and Ashok Roy and also from the said vehicle were separately seized on the basis of seizure list and those were packed, sealed, labelled and signed by the witnesses and the Searching Officer. Thereafter, the accused persons were arrested and were brought to the Behala P. S. along with the seized articles in Tata Sumo which was also seized.
6. Special case under Sections 21 and 29 of NDPS Act was started against all the accused persons on the basis of a written complaint of the Inspector-in-Charge, Shri Subhas Sen. The seized purias suspected to be of heroin were kept in Malkhana of Behala P. S. and seized cash was handed over to the Cash Officer of the same P. S.
7. S. I. Lakshman Chandra Saha was entrusted with the duty to investigate the case who in course of such investigation sent the seized articles for chemical examination. Subsequently, the investigation was made by S. I. Rajat Kumar Sarkar who on collecting chemical examination report and other materials submitted a charesheet against all the six accused persons under Sections 21 and 29 of the NDPS Act.
8. The learned Special Judge on the basis of the materials on record framed a charge under Section 2K(b) of the NDPS Act against the accused Tathagata Sarkar @ Bumbi and Ashok Roy @ Chingri. Separate charge under Section 29 of NDPS Act was framed against Sanjib Kr. Das, Sanjay Biswas, Bapi Basak and Anil Khanra for recovery of 30 purias each from the possession of Tathagata Sarkar @ Bumbi and Ashok Roy @ Chingri. Another charge under Section 21(b) of NDPS Act was framed against all the six accused persons in respect of 140 purias of heroin recovered from the middle seat of Tata Sumo vehicle.
9. Respective charges were read over and explained to the respective accused persons and as they pleaded not guilty to the charge levelled against each of them, the prosecution examined as many as 14 witnesses.
10. Defence, however, did not produce any witness. The defence case that can be ascertained from the trend of cross-examination as well as from the answers given in course of examination of the accused persons under Section 313 of Cr. PC is that they were not involved in the alleged offence and that they were arrested from their respective residences and their signatures were obtained on blank papers.
11. After keeping in view the evidence adduced by the prosecution and after hearing the arguments of the parties, the learned Special Judge came to a conclusion that the charge under Section 2Kb) of the NDPS Act against the accused Tathagata Sarkar @ Bumbi and Ashok Roy @ Chingri was not proved for non-compliance of the provision of Section 50 of the NDPS Act and accordingly they were not found guilty in respect of that charge and they were acquitted from that charge. No appeal was however, preferred by the State in respect of this order of acquittal.
12. The learned Special Judge also came to the conclusion that the charge under Section 29 of the NDPS Act was not proved against the remaining four accused persons viz. Sanjib Kr. Das, Sanjay Biswas, Bapi Basak and Anil Khanra and accordingly they were also found not guilty to the said charge and they were acquitted. No appeal has been preferred by the State against this order of acquittal.
13. The learned Special Judge thereafter came to the conclusion that all the six accused persons failed to justify the possession of 140 paper purias of heroin that were kept in the middle seat of the vehicle. It was also considered that all the six persons travelling by the same private vehicle were aware of carrying of the said contraband articles and that it was within their conscious possession. Accordingly, the learned Special Judge came to the conclusion that the charge under Section 21(b) of the NDPS Act was proved against all the six accused persons. Six accused persons were accordingly convicted and sentenced in the manner indicated hereinabove.
14. Seized money was confiscated and was directed to be deposited with the Legal Services Authority, 24-Parganas (South). Similarly the seized Tata Sumo vehicle was also confiscated to the State.
15. By these four appeals, the judgment and findings of the learned Special Judge have been challenged before this Court.
16. The contention of the learned Counsel for the appellants is that the charge levelled against the convict Tathagata Sarkar and Ashok under Section 21(b) of NDPS Act having not been proved, the possession of 30 purias from each of these accused is also not proved. Since, they are acquitted from the said charge, and no appeal was preferred, the order of acquittal achieved its finality.
17. The learned Public Prosecutor, however, contended that the alleged possession of 30 purias each from the convicts Tathagata and Ashok was construed to be not proved for non-compliance of Section 50 of the NDPS Act. However, the learned Public Prosecuror was fair enough to concede that as no appeal was preferred by the State against such finding of the Trial Court, it is to be construed that charge under Section 21(b) of NDPS Act is not proved against Tathagata and Ashok. He also conceded that the charge under Section 29 of the NDPS Act against the four convicts, namely, Sanjay, Bapi, Sanjib and Anil in respect of recovery of 30 purias each from Tathagata and Ashok having not been proved, they are acquitted from the charge under Section 29 of the NDPS Act. Since no appeal is preferred, this verdict of the Trial Court achieved its finality.
18. After a careful scrutiny of the materials on record and keeping in view the fact and circumstances, we come to the conclusion that the finding of the Trial Court as regards the charge under Section 2Kb) of the Act against Tathagata and Ashok and charge under Section 29 of the Act against Sanjay, Bapi, Sanjib and Anil do not call for any interference by this Appellate Court.
19. Next comes the question as regards the recovery of 140 purias of heroin from the vehicle by which six convicted persons were proceeding towards Pailan from Calcutta. The evidence on record is sufficient to indicate that the said 140 purias were kept in the seat of the vehicle covered by a cloth. The recovery of the seized articles is also proved beyond any reasonable doubt. But the learned Counsel for the appellants contended that for the recovery of the said 140 purias from the vehicles the Trial Court framed a charge under Section 21(b) of NDPS Act without indicating in the charge as to whether those were recovered from the personal possession of any of the convicted persons or those were transported by them. It is also pointed out by scanning the charge that the main allegation against the six convicted persons is that they were occupants of the Tata Sumo vehicle from which 140 purias of heroin were recovered without any valid document. So on the basis of the charge, it is contended, that no opportunity was given to the convicted persons to ascertain as to whether the possession of the said quantity of 140 purias of heroin was ascribed to each of the convicted persons, nor it was indicated in the charge that those purias were in conscious possession of the said six convicted persons.
20. It is also contended by the ld. Counsel for the appellants that for the recovery of the said 140 purias of heroin no charge under Section 29 of the NDPS Act was framed against any of the convicted persons. On the other hand, the Trial Court disbelieved the alleged abetment/or criminal conspiracy/in respect of recovery of 30 purias each from the possession of Tathagata Sarkar and Ashok Roy. So when the Trial Court disbelieved the abetment or criminal conspiracy in respect of possession or transportation of 30 purias each by the accused Tathagata and Ashok, it can safely be concluded that the other accused persons, namely Sanjay, Bapi, Sanjib and Anil did not participate in abetment or criminal conspiracy in respect of possession or transportation of heroin by the said vehicle. So the ld. Counsel for the appellants contended that the said four convicted persons practically had no knowledge about the possession not to speak of conscious possession or transportation of 140 heroin purias by the said vehicle. It is also contended that the charge under Section 29 of the NDPS Act having not been framed against two accused persons, namely, Tathagata and Ashok they cannot be construed to have abetted or made criminal conspiracy in respect of possession or transportation of 140 purias by the said vehicle. It is contended that mere presence of the convicted persons in the vehicle cannot be construed as conscious possession within the meaning of Section 2Kb) of the Act.
21. The ld. Counsel for the appellants analysing the questions put under Section 313 Cr. PC to each of the convicted persons pointed out that no question was put to any of the six convicted persons as regards the possession of 140 purias of heroin. So placing reliance on the decision of the Apex Court in the case of Avtar Singh v. State of Punjab, reported in 2002 SCC 1769 it is contended that the accused persons was not given any opportunity to give any reply on this score. It is also contended that the possession having not been proved and no alternative charge for transporting the offensive goods having not been framed the conviction under Section 2Kb) of the NDPS Act is not justified in this case.
22. Reliance was also placed in Gopal v. State of M. P., , in order to augment the argument that conscious possession is required to Be proved.
23. Referring to the latest decision of the Apex Court in the case of State of Punjab v. Balkar Singh & Ors., reported in 2004 SCC (Cri) 834, it is submitted by the learned Counsel for the appellants that the failure on the part of the accused persons to give any satisfactory explanation for being present along with the seized contraband articles cannot prove that the accused persons were in possession. Accordingly, the learned Counsel for the appellants concluded that mere recovery of 140 purias from the vehicle by which all the six accused persons were proceeding cannot be construed as conscious possession so as to bring the offence within the preview of Section 21(b) of the NDPS Act.
24. The learned P. P., however, relying on a decision in the case of Madanlal & Anr. v. State of H.P., reported in 2003 SCC (Cri) 1664, contended that once possession of the contraband article is established, the entire burden is on the accused persons to prove that it was not a conscious possession. The learned P. P., however, after analysing the evidence on record, submitted that none of the accused persons has been able to discharge the burden imposed upon them as regards the recovery of 140 purias of heroin from the vehicle by which they were proceeding. He further contended that recovery of 140 purias having been established in this case and it is also proved by the witnesses that the accused persons were in the same vehicle from where said contraband articles were recovered, it is to be construed as possession of all the accused persons and hence under the provision of Section 54 of NDPS Act, it is to be presumed that the accused persons had committed an offence within the meaning of Section 21(b) of NDPS Act. The learned P. P. however, contended that such presumption is undoubtedly rebuttable. But the accused persons though took the plea of absence in the vehicle but they did not adduce any evidence in support of such claim. The claim made by the accused persons in course of examination under Section 313 of Cr. PC is in the nature of alibi and burden of proof of this alibi was also on the accused persons. This burden having not been discharged, the presumption under Section 54 as regards commission of offence is established. Accordingly, it is concluded that the charge under Section 2Kb) of the Act has been proved against all the six accused persons and there is no reason to interfere with this finding of the Trial Court.
25. In reply, the learned Counsel for the appellants placing reliance on the same decision of the Apex Court in the case of Madanlal & Anr. (supra) pointed out that the word 'possession' means the legal right to possession. The learned Counsel for the appellants, however, pointed out that the Apex Court placing reliance on another decision in Gunwantlal v. State of M. P., , considered that possession in a given case need not be physical but can be constructive, having power and control over the article in the case in question. It is clarified that the person to whom physical possession is given holds it subject to that power or control. It is also pointed out that the word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate and intended. So, the learned Counsel for the appellants scanning the evidence of the witnesses reiterated that the possession or control over the article at the instance of any of the accused persons having not been established, it cannot be said that each of the accused persons had the legal right to possession. It is further clarified that mere travelling by the vehicle does not confer awareness on the existence of any contraband article in vehicle without any proof of such consciousness. It is clarified that such conscious possession has also not been established in this case. It is further contended that the Trial Court did not impute abatement or criminal conspiracy upon all the accused persons as regards carrying of 30 purias each of the contraband by the accused Tathagata and Ashok. So, the learned Counsel for the appellants contended that neither Section 35 nor Section 54 of the NDPS Act is applicable in this case and as such, the principle adopted in the case of Madanlal & Anr. (supra) practically indicated the want of conscious possession in respect of 140 purias found in the vehicle.
26. The learned Counsel for the appellants also placed reliance in another judgment of the Apex Court in Megh Singh v. State of Punjab, reported in 2004 SCC(Cri) 58, contending that the possession of 140 purias with the accused persons having not been established, the question of conscious possession does not arise. Reliance was also placed on another judgment of the Apex Court in Narcotic Control Bureau, Jodhpur v. Murali Dhar Sony & Ors., reported in 2004 SCC (Cri) 1561, in support of the contention that in the absence of any material showing conscious possession of the contraband, the accused persons cannot be found guilty.
27. After a careful consideration of the submissions made by the learned Counsel and the evidence on record, it is clear that 140 purias were recovered from a private vehicle which was occupied by all the six accused persons, and none of them gave any logical explanation as regards their ignorance of transportation of those purias in that vehicle. No evidence is also adduced on behalf of the accused persons as to how and why all the six persons were going by a private vehicle to the same destination. It is already discussed above that the accused persons took the plea that they were arrested from their respective residences, but it has not been established by production of any evidence. A careful scrutiny of the cited decisions goes to indicate that if contraband article is recovered from a private vehicle, all the persons travelling by the said vehicle at the same destination, without any logical explanation, are to be construed to be in conscious possession of the contraband article. The case is always distinguishable in case of such recovery from a public vehicle or a vehicle used for carrying passengers in general on hire. The fact situation of this case is sufficient to ascribe conscious possession on all the accused persons.
28. So, on the basis of the evidence on record, it can be safely concluded that 140 purias were recovered from the vehicle and it was suspected to be containing heroin. It appears that the seizing officer after seizure of 30 purias each from the personal possession of the accused Tathagata Sarkar and Ashok Roy and 140 purias from the vehicle, thought it fit to mix 60 purias recovered from the personal possession of Tathagata and Ashok and kept those in a sealed packet. Justification of this act of seizing officer has not been explained and there is sufficient indication that the seizing officer with full knowledge mixed those 60 purias which he should not have done for finding out the guilt of the two accused Tathagata and Ashok. It is also to be noted that no sample was taken from 60 purias and the entire stock of 60 purias was kept in one envelope marked 'A'.
29. It is also to be noted from the evidence on record that the seizing officer on detection of 140 purias from the vehicle kept the entire stock on one packet. It is clarified from the evidence that those 140 purias were found in five bundles. But it is not stated that in each bundle how many purias were there. The entire stock placed in the envelope was marked 'B'. But no sample was taken from the said stock of 140 purias.
30. Subsequently, both the envelope marked 'A' and marked 'B' were placed before the Trial Court. Before despatching the envelopes the signature of the Presiding Officer of that Court was taken and thereafter it was sent to the Chemical Examiner through one Head Constable Sanjit Banerjee of Behala P. S. (P. W. 12) on the basis of a command certificate (Ext. 6). The said command certificate indicates that the articles sent was received in the Chemical Examination Office on 10.9.2001. But surprisingly enough the forwarding Memo giving description of the article sent for chemical examination is not produced in course of trial. No description of the articles seized is also given in the command certificate (Ext. 6). The Chemical Examiner (P. W. 2) in his deposition claimed that he gave marking as 647(N) and 648(N) of 2001 to the two packets marked 'A' and 'B'. In his report (Ext. 5), it is indicated that two packets were containing several paper purias and the gross weight of the packet 'A' was 10.166 gms. and that of envelope 'B' was 24.6571 gms. On examination, he found that in both the samples marked 'A' and marked 'B' contained heroin and the assessed value of the contained heroin was 7.4% w/w. So, it was opined that both the samples marked 'A' and marked 'B' contained heroin.
31. P. W. 2, the said Chemical Examiner reiterated that he received one envelope from which he got two brown packets marked 'A' and marked 'B' and that he noticed several purias inside those packets. But surprisingly enough, he could not say the number of purias kept in each of the packets marked 'A' and marked 'B'. He also did not clarify as to how many purias he examined and how many he returned along with the chemical examination report. The learned Counsel for the appellants rightly pointed out that according to the seizure witnesses, 30 purias allegedly recovered from the personal possession of Tathagata Sarkar weighing 5.330 gms and 30 purias recovered from Ashok Roy was found to be 5.010 gms in weight. So, the total weight of those 60 purias was 10.340 gms. It is also indicated that according to the Chemical Examiner, the gross weight of packet 'A' was 10.1666 gms. So, the identity of the articles seized and placed for chemical examination is not established.
32. The learned Counsel for the appellants also pointed out that total weight of 140 purias according to the seizing officer was 24.640 gms. and the Chemical Examiner got the weight of the envelope marked 'B' as 24.657 gms. So, it is rightly pointed out by the learned Counsel for the appellants that there was variation in the weight of the articles sent to the Chemical Examiner for chemical test. So, the learned Counsel for the appellants tried to say that the articles seized from the spot were not sent for chemical examination and as such the prosecution has not been able to prove that 140 purias contained heroin.
33. From the evidence of P. W. 2, it appears that he is unable to say the number of purias he received or how many of those purias he tested for finding out the contents. It is also interesting to note that many purias were produced in course of trial and few of those purias contained the signature of P. W. 2 but those purias were not marked as material exhibit in course of trial. In course of hearing of these appeals, an attempt was made to verify the actual number of purias kept in the envelope by bringing the material exhibit in this Court, but it could not be done as the police personnel, in charge of Malkhana left the police station on leave along with the key of the strong room. Thus, the alamats produced in the Court were not marked as exhibit and those are also not produced before this Court for ascertaining the real state of affairs. So, it is rightly argued that a reasonable doubt is to be expressed as regards number of purias sent for chemical examination.
34. After hearing the learned Counsel for the appellants at length, we are in agreement with the submissions of the learned Counsel for the appellants that the identity of the articles seized has not been established with the articles sent for examination by the Chemical Examiner. Accordingly, it cannot be said that the articles seized were actually sent to Chemical Examiner and that those contained heroin. So, when it is established that the article seized has not been proved to be heroin, the question of finding the six convicts guilty under Section 21(b) of the NDPS Act cannot be conceived off. It appears that the Trial Court did not consider this aspect and came to an erroneous decision as regards contents of 140 purias.
35. It is also to be mentioned that the seizure list (Exbt. 2) is completely silent as regards the place wherefrom 140 purias were received. The forwarding report of the articles seized is also not producd for reasons best known to the prosecution. The alleged search and seizure and subsequent despatch of the seized articles for chemical examination are full of confusions and hence a reasonable doubt can be expressed as regards recovery of 140 purias from the vehicle.
36. It is clear that the prosecution has failed to establish the identity of the articles seized and examined by the Chemical Examiner (P.W.2). So it is not at all possible to hold and conclude that the seized 140 purias contained heroin. Accordingly it is not possible to hold and conclude that the six accused persons committed any offence under Section 21(b) of the NDPS Act. The Trial Court did not take into consideration this aspect and came to an erroneous decision in this regard.
37. Keeping in view the materials on record and the circumstances the judgment of conviction and sentence passed by the Trial Court is liable to be set aside and all the four appeals are to be allowed.
38. In the result all the four appeals are allowed and the pending application bearing CRAN No. 822 of 2004 is disposed of. The judgment of conviction and sentence passed by the Trial Court are hereby set aside. All the six convicts/ appellants are found not guilty to the charge and they are acquitted. The convicted persons in custody be set at liberty forthwith and the other convicted persons on bail be discharged from their respective bail bonds.
39. No further order is required in respect of the confiscated cash amount of Rs. 14,520/- as the learned Counsel appearing on behalf of Tathagata Sarkar and Ashok Roy on instruction from their clients repudiated the claim.
40. The order of confiscation of the seized vehicle No. WB-O2G-2088 is hereby set aside. The vehicle be returned to its registered owner on payment of a cost of 1000 G.Ms, (one thousand gold Mohrs) within two weeks from this date to the West Bengal Legal Services Authority for non-compliance of the directions issued by the Trial Court as regards production of the vehicle in time. On payment of such cost the owner shall stand discharged from his zimbanama. Let the operative part of this judgment be given to the owner of the car for necessary compliance.
41. Let a copy of this order (operative part) be sent to the Superintendent of Alipore Central Correctional Home and another copy to the Secretary, West Bengal Legal Services Authority for information forthwith.
Sankar Prosad Mitra, J.
42. I agree.