Calcutta High Court (Appellete Side)
Narcotic Control Bureau vs Rafiqu Ahmed Sk on 3 May, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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.130 of 2005
Narcotic Control Bureau
Versus
Rafiqu Ahmed Sk.
For the appellant : Mr. Somnath Banerjee
Amicus Curiae : Mr. Ranabir Roy Chowdhury
Heard on : 20/04/2017, 24/04/2017 & 26/04/2017
Judgment on: 03/05/2017
Debasish Kar Gupta , J. :
This appeal is directed against judgment and order of acquittal dated July 17, 2003 passed by the learned Judge Special Court under N.D.P.S. Act, South 24-Parganas, Alipore in Sessions Trial No.1 (1) 2003.
The backdrop of the case in a nutshell is as under:-
On receipt of an information from secret source a team of intelligence officers attached to the Narcotics Control Bureau (hereinafter referred to as NCB Officers), Eastern Zonal Unit, intercepted a person in front of Zoological Garden (Main Entrance), Alipore, Kolkata on March 18, 2002 at 14.30 hours. According to the prosecution case, after disclosing their identity as officers of the NCB, it was intimated to the above person that they had the information that he was carrying 'charas' with him. They further disclosed their intention to search him.
The intercepted person disclosed his identity as Rafiqu Ahmed Sk. of Chinkral Mohallah, Haba Kadal, P.O. & P.S.-Haba Kadal, Srinagar, Kashmir. After knowing the desire of the NCB Officers to search him of his person, he agreed in writing to be searched before a Gazetted Officer of NCB. One Gazatted Officer (PW 6) arrived at the spot at 15.00 hours. The above intercepted person was verbally offered to search the NCB Officers before conducting search of his person. He verbally declined to do so.
After calling two independent witnesses from the on lookers search of the intercepted person was conducted by the NCB Officers. Some solid black coloured substance kept in a bag of synthetic cloth and further wrapped with yellow coloured polythene carry bag marked "Ganga Saree Centre", which he held in his right hand was recovered. The above substance was tested with the help of Field Test Kit. The result was positive to the test of "charas". On weighment the recovered substance was found to be 1.200 kg (gross). Then sample of 25 gm in duplicate was collected from the recovered substance and kept in two separate polythene packets. The remaining quantity of 1.150 kg of the seized substance was kept in the black coloured side bag of synthetic cloth along with yellow coloured polythene carry bag. Three labels were prepared and signed by the intercepted person, Gazetted Officer (PW 6) and two independent witnesses. The labels were kept and sealed in respective envelops and yellow coloured polythene.
On further spot interrogation the aforesaid intercepted person admitted his guilt and informed the NCB Officers that he had been waiting to sell the recovered "charas" to a person called Vijay of Dharmatala area whose proper address was not known to him. A notice under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act, 1985) was served upon the aforesaid intercepted person at 18.15 hours on the same day i.e. on March 18, 2002 for further investigation.
His confessional statement was recorded by PW 4 on March 18, 2002 at 18.30 hours obtaining his left thumb impression at the bottom of the statement. He was arrested on March 18, 2002 at 23.30 hours.
PW 7 was appointed as investigating officer. He submitted charge sheet against the aforesaid accused person for commission of offence punishable under Section 20 (b) (ii) of the N.D.P.S. Act, 1985. Charge was framed against the accused person on January 6, 2003 for commission of offence punishable under Section 20 (b) (ii) of the N.D.P.S. Act, 1985.
After considering the evidence of seven prosecution witnesses, documentary evidences and the statement of the accused person recorded under Section 313 Cr.P.C. the impugned judgment and order of acquittal was passed.
It is submitted by Mr. Somnath Banerjee, learned advocate appearing on behalf of the appellant that the learned trial Court was in error in disbelieving the evidence of PW 3, PW 4, PW 6 and PW 7 on the ground that all of them belonging to the Narcotic Control Bureau, Eastern Zonal Unit. According to him, the commission of offence by the accused person was proved beyond reasonable doubt, from the test report of the article seized from him in presence of two independent witnesses as also from his confessional statement recorded after service of a notice upon him under the provisions of Section 67 of the N.D.P.S. Act, 1985.
Reliance is placed by Mr. Banerjee on the decisions of Kulwinder Singh & Anr. Vs. State of Punjab, reported in 2015 (3) AICLR (SC) 568, Brijesh Kumar Gupta vs. Narcotics Control Bureau, reported in 2014 CRI.L.J. 4203, M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence, reported in (2003) 8 SCC 449, Pon Adithan vs. Deputy Director, Narcotics Control Bureau, Madras, reported in (1999) 6 SCC 1, Hema vs. State, The Inspector of Police, Madras, reported in 2013 (1) Supreme 627, State of U.P. vs. Hari Mohan & Ors., reported in AIR 2001 SC 142, State of Punjab vs. Balbir Singh, reported in 1994 C.Cr.LR (SC) 121 and Ram Swaroop vs. State (Govt. NCT) of Delhi, reported in 2013 (4) Supreme 328 in support of his above submissions.
On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury, learned Amicus Curiae appointed by the Court that PW 3, PW 4, PW 6 and PW 7 all belonging to the Narcotic Control Bureau, Eastern Zonal Unit. Though the search and seizure was conducted in presence of two independent witnesses and their signatures were collected on the articles seized as also on the seizure list, none of them was produced before the Court as prosecution witness. According to him, the above search and seizure from the accused person was not proved. It was further submitted by him that service of notice under Section 67 of the N.D.P.S. Act, 1985 (Ext.-7) was also not proved in the trial because according to the prosecution case the accused person was illiterate. He could speak in Urdu/Kashmiri language and could somehow understand the Hindi language. The notice under Section 67 of the N.D.P.S. Act, 1985 was prepared in English. It was neither read over nor explained to him. According to him, the confessional statement of the accused person was also not proved beyond doubt due to the fact that it was prepared in Hindi by the PW 4. The left thumb impression of the accused person was obtained at the bottom of the above statement which was neither read over nor explained to him. It is also submitted by Mr. Roy Chowdhury that the fact of search and seizure of the contraband article from the accused person was not intimated to the Higher Officer of the Narcotic Control Bureau, Eastern Zonal Unit in gross violation of the mandatory provisions of sub-section (2) of Section 42 of the N.D.P.S. Act, 1985. It is submitted by him that in view of the above, there was no error or infirmity in the impugned judgment and order of acquittal.
Reliance is placed by Mr. Roy Chowdhury on the decisions of State of Himachal Pradesh vs. Pawan Kumar, reported in 2005 (4) SCC 350, Vijaysinh Chandubha Jadeja vs. State of Gujarat, reported in 2011 (1) SCC 609, State of Rajasthan vs. Jag Raj Singh @ Hansa, reported in 2016 (11) SCC 687 and State of Rajasthan vs. Parmanand & Anr., reported in 2014 (5) SCC 345 in support of his above submissions.
We have heard the learned Counsel appearing for the appellant as also the learned Amicus Curiae appointed by us.
It is not in dispute that according to the evidence of PW 3, PW 4 and PW 7 the Intelligence Officers of Narcotic Control Bureau, Eastern Zonal Unit were the members of raiding team and PW 6 was the Gazetted Officer belonging to the department concerned, who were present at the time of search and seizure of the contraband article from the possession of the accused person. According to the evidence of PW 3, two independent witnesses namely, Ramesh Halder and Sk. Firoj were present at the time of search, seizure and labeling of the seized articles. They were the witnesses of the seizure list and subscribed their signatures on the labels fixed on the packets of the seized articles and as also on the labels fixed on the packets of the sample thereof. Surprisingly none of them was produced before the Court as prosecution witness. It is evident from the statement of the accused person recorded under Section 313 Cr.P.C. that he was inside the zoo at the time of his interrogation. He denied the claim of the prosecution case of his search, seizure of the contraband article from him, or any bag in his hand, service of notice under Section 67 of the N.D.P.S. Act, 1985 on him. According to him, his left thumb impression on a blank sheet of paper was obtained by the officers of the raiding team.
The above facts and circumstances created reasonable doubt in the mind of the learned trial Judge to examine further the trustworthiness of the prosecution witnesses. Needless to point out that all the prosecution witnesses, who claimed to be witnessing the incident of interception of the accused person and search and seizure of contraband articles from him belong to the Narcotic Control Bureau, Eastern Zonal Unit.
In view of the aforesaid peculiar facts and circumstances of the case the decisions of Kulwinder Singh (supra), M. Prabhulal (supra) and Ram Swaroop (supra) do not help the appellant in any way.
It is also an admitted fact that the notice claimed to be served upon the accused person was prepared in English language and left thumb impression of the accused person was procured at the bottom of the above notice. After scrutinising the above notice from the lower Courts record, we do not find that the contents of the above notice was read over and explained to the accused person. Therefore, the finding of the learned trial Court in this regard that proper notice under Section 67 of the N.D.P.S. Act, 1985 have not been served upon the accused person, was correct.
In view of the above the decision of Brijesh Kumar Gupta (supra) has no manner of application in is appeal.
Regarding the recording of the confessional statement of the accused, we find that it was prepared by PW 4, one NCB Officer. Left thumb impression of the accused person was obtained at the bottom of that statement. After scrutinising the above confessional statement we do not find that the contents of the same was read over and explained to the accused person. Needless to point out that the accused person was acquainted with Urdu language and could only manage to understand Hindi. Therefore, the finding of the learned trial Judge in this regard does not require any interference.
Since the facts and circumstances involved in this case is distinguishable with the decision of Pon Adithan (supra). The above decision does not help the appellant in any way.
We find substance in the submission made by Mr. Roy Chowdhury with regard to non-compliance of the provisions of sub-section (2) of Section 42 of the N.D.P.S. Act, 1985. According to the above provisions where an officer takes down any information in writing under sub-section (1) of Section 42 of the N.D.P.S. Act, 1985 or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. In Balbir Singh (supra) it is observed by the Apex Court that under the provisions of sub-section (2) of Section 42 empowered officer who takes down any information or records the grounds under proviso to sub-section (1) of Section 42 of the N.D.P.S. Act, 1985 should send a copy thereof to his immediate official superior within seventy-two hours. Total non-compliance of the above provision affects the prosecution case. The relevant portion of the above decision is quoted below:-
"25. . . . . . . .
2-B. . . . . . . .
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
. . . . ."
Therefore, there was reason to believe that the mandatory provision of sub-section (2) of Section 42 of the N.D.P.S. Act, 1985 was not complied with.
In the decisions of Hema (supra) and Hari Mohan (supra) the general proposition of law with regard to the consequence of defective investigation at the instance of investigating agency has been laid down. Since it has been observed by us hereinabove that the prosecution failed to prove its case to the heal, the above decisions do not help the prosecution case in any way.
None of the issues involved in this appeal requires its examination in the light of the provisions of Section 52 o the N.D.P.S. Act, 1985. So, the decision of Balbir Singh (supra) need not be taken into consideration by us.
In the premises, we do not find any substance in this appeal and the same is dismissed.
Before parting with, we appreciate assistance rendered by Mr. Ranabir Roy Chowdhury, learned Amicus Curiae, to adjudicate the issues involved in this appeal.
Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously.
Urgent Photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)