Calcutta High Court
Sk. Mithun @ Md. Kalim, Sanjoy Khan @ ... vs State Of West Bengal on 16 February, 2006
Equivalent citations: 2006(2)CHN603
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT Alok Kumar Basu, J.
1. This appeal has been preferred by two appellants from jail challenging their conviction under Section 21 of the NDPS Act and the consequential sentence order recorded by the ld. Additional Sessions Judge, 2nd Court, Hooghly in connection with the NDPS Case No. 15 of 2003.
2. The prosecution case in brief was that acting on secret information the S. I., Tapas Singha, of Bhadreswar P. S. along with other police staff detained the appellants at the dead hour of 16th August, 2003 at a place in between Baidyabati and Bhadreswar along R.B.S. Road.
3. Since the S.I. Tapas Singha, had a reasonable suspicion that those persons might be in possession of heroin, he requisitioned the service of a Gazetted Officer and accordingly the SDO, Chandannagore, was summoned to be present on the spot. After presence of the SDO, Chandannagore, the S.I. Tapas Singha, served notice as per the provisions of Section 50 of the NDPS Act and thereafter in presence of the SDO, Chandannagore on personal search 7 gms. of heroin was recovered from both the appellants along with some amount of cash money.
4. The S.I. made weighment of the seized alamats and thereafter in presence of the SDO and one public witness the seized alamats were sealed and labelled.
5. The S.I. thereafter filed a regular complaint on the basis of which a specific case was started and the O.C. Bhadreswar P.S. took up the investigation and in course of investigation he collected chemical examiner's report regarding the seized alamats and submitted chargesheet against both the appellants under Section 21 of the NDPS Act.
6. During trial the prosecution side examined six witnesses to substantiate its charge against both the appellants and those witnesses included the S.I. Tapas Singha, who detained the appellants and who performed the connected part of seizure and labelling of the alamats and who also filed the regular complaint against the appellants, the SDO, Chandannagore, who was present as a Gazetted Officer and in whose presence search and recovery was made and one public witness who was present during the search and seizure.
7. The ld. Additional Sessions Judge mainly relying on the statement of the S.I. Tapas Singha, and the SDO, Chandannagore came to the conclusion that on 16th August, 2003 about 7 gms. of heroin was in fact recovered from possession of both the appellants and relying on the chemical examiner's report the ld. Judge held both the appellants guilty of the offence under Section 21 of the NDPS Act and both the appellants were accordingly convicted and sentenced.
8. Appearing in support of the present appellants Mr. Roy has challenged the order of conviction on different grounds.
9. Mr. Roy contends that if we examine the statement of the P.W. 1 along with the statement of the SDO, Chandannagore we will get a confused idea about the actual place of detention of the appellants and also about the search and seizure. Mr. Roy contends that the sketch map of the place of occurrence as prepared by the O.C., Bhadreswar P.S. as the I. O. makes the matter further confused.
10. Mr. Roy contends that from the examination of both the P.W. 1 and the SDO, Chandannagore, there are sufficient reasons to hold that the appellants were never detained at the place as alleged, rather having regard to the cross-examination of both the witnesses there are reasons to hold that the appellants were brought at the Bhadreswar P.S. and thereafter in presence of the SDO, Chandannagore the papers were prepared.
11. Mr. Roy contends that in this case the prosecution allegation was that 7 gms. of heroin was recovered from both the appellants but, curiously enough, there is no evidence at all to satisfy the Court that the actual weight of heroin was 7 gms. Mr. Roy submits that the prosecution did not examine any goldsmith or any local man to weigh the alamats and actually from the statement of the P.W. 1 we get that he made weighment but he has also admitted that he did not prepare any weighment chart of the heroin. The SDO, Chandannagore also did not lend any support to this part of the prosecution case. Mr. Roy contends that since under the amended provision of the NDPS Act, possession of 5 gms. or less than 5 gms. of narcotic substance cannot attract stringent provision of punishment, it was the duty of the prosecution to present tangible and convincing evidence that in fact 7 gms. of heroin was recovered from the possession of both the appellants. Mr. Roy contends that-having regard to the evidence on record it can reasonably be stated that the quantum of possession if at all recovered was not 7 gms. and hence the appellants were entitled to get an order of acquittal in this regard.
12. Mr. Roy finally contends that under the provisions of the NDPS Act the prosecution must satisfy about the preservation of the alamat under safe custody and also dispatch of the same to the chemical examiner within a shortest possible time but in this case there is no evidence practically to indicate how the alamat was preserved and how it was sent to the chemical examiner and it is also pertinent to mention in this case that the chemical examiner was not examined. Mr. Roy, therefore, contends that having regard to the evidence on record this was not a fit case where an order of conviction could have been passed.
13. Mr. Biswas, appearing for the State-respondent, on the other hand, has supported both the order of conviction and sentence relying on the evidence available with the record of the ld. Trial Court. Mr. Biswas contends that entire process of detention, search and seizure was made by responsible police officers and in presence of a Gazetted Officer and naturally there should not be any slightest doubt in the mind of the Court to accept the testimony of these public officers without assigning any reason.
14. Mr. Biswas contends that from the exhibited documents along with the statement of the P.W. 1 and P.W. 5 it is amply clear that the provisions of Section 50 of the NDPS Act was duly complied with and the entire search and seizure had been made in presence of a Gazetted Officer after informing the appellants to their rights to be searched in presence of such a Gazetted Officer.
15. Mr. Biswas contends that it is available from evidence that no public made the weighment but that cannot hamper the prosecution case when the P.W. 1, who actually detected the offence and who actually took the weighment stated in support of the prosecution case.
16. Mr. Biswas, therefore, submits that so far the evidence on record is concerned, there is no scope to interfere with the order of conviction and sentence and the appeal is accordingly bound to fail.
17. We have perused the evidence on record, both oral and documentary, and we have also considered the submissions of both Mr. Roy, for the appellants, and Mr. Biswas, for the State.
18. From the FIR as well as from the statement of the P.W. 1, who lodged the FIR we find that in this particular case alleged recovery was made from the persons of both the appellants and accordingly there was requirement of due compliance of Section 50 of the NDPS Act.
19. Looking at the evidence of P.W. 1, P.W. 5 and also at the documents exhibited by the prosecution, we find that a notice was served upon both the appellants informing them of their right to be searched in presence of a Gazetted Officer and only thereafter with their consent their persons were searched in presence of a Gazetted Officer, who was the SDO, Chandannagore and thereafter the recovery was made.
20. After scanning the prosecution evidence particularly with reference to P.W.I and P.W.5 and having regard to the submissions of both Mr. Roy and Mr. Biswas, we find that in this case one of the essential ingredients was not satisfied by the prosecution and that relates to the actual weighment of the seized alamat.
21. From the statement of the P.W.I we find that he did not requisition service of any goldsmith or any other public having a weighing machine for the purpose of taking the weighment of the seized heroin on the spot so as to ascertain the exact quantity of the contraband article recovered from the appellants.
22. P.W.1 stated that he personally took the weighment of the contraband article but he has not mentioned how such weighment was made and even he did not prepare a chart so that same can be treated as a contemporaneous document in support of his contention.
23. P. W. 5 was a Gazetted Officer and in his statement, particularly in his cross-examination, he has stated that no weighment chart was prepared and he was also silent as to how the weighment was made by the P.W.1.
24. The chemical examiner in his report has indicated that the weighment of the contraband article was 7 gms. But since the chemical examiner was not examined, it was not possible to obtain from him how he found the article as 7 gms. and whether he made any independent weighment of the contraband article.
25. Thus, having regard to the evidence on record we are really in doubt whether the actual quantity of the contraband article recovered from the appellants was 14 gms. and on this point there is no satisfactory evidence at all.
26. We have also found from the evidence on record that there is nothing before the Court to show how the contraband article after recovery was preserved and in what manner that was sent to the chemical examiner's office. Prosecution was duty-bound to produce evidence in the form of malkhana register or any other document to show that the alamat was received at the local P. S. and the same was sent to the office of the chemical examiner with utmost promptitude.
27. After careful examination of the statement of the P.W. 1 and the P.W.5, we are also in doubt about the actual place of search and recovery.
28. Thus, having regard to the submissions of both Mr. Roy and Mr. Biswas and after considering the prosecution evidence as a whole, we are of the opinion that the prosecution charge against both the appellants under Section 21 of the NDPS Act was not proved beyond reasonable doubt and that being the factual position, we are of the view that there is merit in the present appeal and the same should be allowed.
29. We, therefore, allow this appeal and set aside the order of conviction and sentence. Since both the appellants are in jail, we direct the Superintendent of the Correctional Home where the appellants are detained, for their immediate release, if they are not wanted in connection with any other case.
30. Let a copy of this judgment and order be sent to the Superintendent of the Correctional Home where the appellants are detained for taking necessary action forthwith.
31. Let a copy of this judgment and order along with the L C R be sent to the ld. Court below for information and necessary action as early as possible.
32. Criminal Section is directed to furnish urgent certified copy of this order to the ld. Advocate for the appellants as early as possible.
Pranab Kumar Deb, J.
33. I agree.