Calcutta High Court (Appellete Side)
Netai Sen vs The State Of West Bengal on 2 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Moushumi Bhattacharya
C.R.A. No. 215 of 2011
Netai Sen
Versus
The State of West Bengal
For the appellant : Mr. Uday Sankar Chattopadhyay,
Mr. Santanu Maji,
Ms. Snigdha Saha
For the State : Mr. Saswata Gopal Mukherjee, learned P.P.,
Mr. Arun Kumar Maiti, learned Adl. P.P.,
Mr. Pradipta Ganguly
Heard on : 02.11.2017
Judgement on : 02.11.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 21.03.2011 and 22.03.2011 passed by the learned Judge, Special Court, (under N.D.P.S. Act) Burdwan-cum-Additional Sessions Judge, 3rd Court, Burdwan in Special Case No. 05 of 2009 convicting the appellant for commission of offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to suffer further rigorous imprisonment for one year more has been assailed.
The prosecution case, as alleged, against the appellant is to the effect that on 29.06.2009 Officer-in-Charge of Durgapur Excise Circle received secret information on his mobile phone that a white coloured Maruti van bearing no. WB 38E/1559 loaded with poppy straw would be going towards Panagarh side. Considering the gravity of the offence and likelihood of escape resulting from delay in obtaining a search warrant, the said officer noted down the information as grounds for reasons to believe in a general diary and proceeded to hold raid along two constable's viz. P.Ws 4 and 5 under the supervision of Deputy Excise Collector, Durgapur Range, P.W. 3 herein. While waiting at the spot at around 10.15 A.M. they saw the Maruti car was proceeding towards Panagarh. They chased the van and could intercept it at Banskopa. Apart from the appellant who was the driver of the vehicle, there was no one inside the van. The appellant admitted that he was carrying poppy straw in the van. P.W. 1 asked him as to whether he wanted to be searched in presence of a Gazette Officer or Magistrate and he agreed to be searched in presence of a Magistrate. Two persons were requested to join in the search as independent witnesses. Thereafter the accused persons along with the independent witnesses went to the Circle Office of Excise, Durgapur Range. Requisition was made before S.D.O., Durgapur for providing an Executive Magistrate for search and seizure. Thereafter Deputy Magistrate-cum- Deputy Collector arrived at the spot and in his presence body search was conducted on the driver and his driving license and registration certificate were recovered from the pocket of his shirt. Then on searching the vehicle nine bags of poppy straw were found. Officer-in-Charge of Durgapur Excise Circle, P.W. 1 herein, seized the driving license, registration certificate of the driver of the vehicle, the contraband under a proper seizure list and labeled and sealed those articles. Then the appellant himself wrote a statement and signed it admitting his guilt and thereafter he was arrested. The accused along with seized articles were produced before court and the seized article were sent for chemical examination. PW1 received chemical examination report in the course of investigation and he recorded the statement of the owner of the vehicle who stated that the he had permitted the appellant to use the vehicle on the latter's plea of taking his ailing relative for medical treatment. In conclusion of the investigation complaint was filed before the trial court and charge were framed under Section 15 of the NDPS Act. The appellant pleaded not guilty and claimed to be tried. Prosecution examined six witnesses and exhibited number of documents including chemical analyst's report being marked as Exhibit no. 4. In conclusion of trial, the defense of the appellant was one of innocence and false implication. Learned Trial Judge convicted and sentences the appellant, as aforesaid.
Learned Counsel appearing for the appellant submits that the leader of the raiding party was the investigating officer in the instant case and therefore the entire prosecution is vitiated and ought to be disbelieved. He relied on State vs. Rajangam, (2010) 15 SCC 369 in support of his contention. He further submits that the evidence of the members of the raiding party suffers from various contradictions and the owner of the vehicle had not been examined during trial. He also submits that exhibit 5 i.e. requisition made before the learned Magistrate for sending the samples for chemical examination showed that the seizure had been effected at village Birudiha and not at the place of occurrence which clearly disproves the case. He finally submits that P.W. 6 was not a man of the locality and a pocket witness of the prosecution and it is difficult to rely on his version with regard to his presence at the place of occurrence. He accordingly prays for acquittal.
The learned lawyer appearing on behalf of the State submits that no prejudice has been caused to the appellant by the investigation conducted by PW no. 1 and, as such, the prosecution case cannot be thrown out on that score alone. He further submits that the raid was conducted upon prior information which had been duly diarised and the search and seizure of the appellant was made before a Gazetted Officer as desired by him. Keeping in mind the huge quantity of poppy straw recovered from the vehicle which was being driven by the appellant, there cannot be any doubt in one's mind that he was aware of the said articles carried by him in the vehicle. He accordingly prays that the appeal be dismissed.
Prosecution witness no. 1 is the defacto complaint and the leader of the raiding party. He deposed that on June 29, 2009, he was posted as Officer in- charge of Excise, Durgapur Excise Circle. On that date, he along with Sekhar Mondal, Deputy Excise Collector, Durgapur Range and two other constables went on raid at about 9-00 a.m. At around 9-30 a.m., when they arrived at Muchipara More, Durgapur, he received a telephonic information from an informer that one white Maruti Omni Car bearing registration no. WB- 38E/1559 loaded with narcotic substances was moving towards Panagarh. He noted down the information in a white paper and after consulting with his superior, Sekhar Mondal, he proceeded to work out such information. At about 10-15 a.m. they found that the said Maruti Car was proceeding towards Panagarh. They chased the car and intercepted the vehicle at Banskopa. They noticed that a person was driving the vehicle save and except that person, the vehicle was empty. The driver identified himself as the appellant. The raiding party also noticed that yellow coloured plastic bags were stocked in the middle portion of the vehicle. On being asked the appellant disclosed that the bags contained opium poppy straw. The raiding party demanded transport pass of the articles in the vehicle, but the appellant failed to produce the same. On being asked as to whether he would be searched in the presence of a Gazetted Officer or Magistrate, the appellant expressed his willingness to be searched in the presence of a Magistrate. Pursuant to their request two local witnesses, who were present at the spot, agreed to join in the search. Thereafter they brought the Car and the appellant along with the witnesses to Durgapur office. They made requisition to Sub Divisional Officer, Durgapur and as per requisition, one Deputy Magistrate, namely, Liakat Ali came to their office. The car was opened in his presence and nine (9) loaded bags were brought out from the car. On search of the person of the appellant, a driving licence and registration certificate of the car were recovered from his shirts pocket. The bags suspected to contain poppy straw were weighed and thereafter seized under a seizure list on which the witnesses put their signatures. The seizure list being Exhibit-1 was prepared by the prosecution witness no. 1 himself. He proved the document being Exhibit-2, where he had recorded the prior information which he had received by him prior to the spot.
The prosecution witness no. 1 further deposed that he drew two samples from each bag, that is, eighteen (18) samples in all. He seized, labelled and sealed the samples in presence of the witnesses. He identified all the bags being material exhibit I to IX in court. He seized the Maruti Car along with the papers relating to the car under a seizure list. He conducted search and seizure in presence of the Magistrate. The appellant wrote a statement before the raiding party in his own hand and signed it. The statement was handed over to the prosecution witness no. 1. The statement of the appellant was exhibited as Exhibit-3. The top portion of the statement was written by the prosecution witness no. 1 being Exhibit 3/1. He identified the appellant in court. He sent the samples to Botanical Survey of India through the Deputy Excise Collector. Subsequently, the raiding party received the chemical analysis report of the samples being Exhibit-4. The seized samples were kept in malkhana in the custody of the Deputy Excise Collector, namely, Sekhar Mondal. He made a prayer to keep the seized alamats in his custody, is being Exhibit-5. The samples were sent for chemical analysis by Sekhar Mondal, the Deputy Excise Collector, Durgapur. He proved the signature of the said Collector being Exhibit-6.
He deposed that the raiding party ascertained the name of the registered owner of the offending vehicle from the Additional Regional Transport Officer. He had sent a requisition to the said officer being Exhibit-7. He proved the report of the Additional Regional Transport Officer being Exhibit-8. He summoned the registered owner of the offending vehicle. The notice of summons was exhibited as Exhibit-9. The owner of the vehicle gave a statement in his presence, which is Exhibit 10. He examined other witnesses also. In conclusion of investigation, he submitted charge sheet.
In cross examination, the prosecution witness no. 1 stated that he was a Sub Inspector and the Deputy Excise Collector was superior to him. He admitted that he was the de facto complainant in the instant case and had investigated into the offence and thereafter submitted charge sheet. He stated that Banskopa is at a distance of 10/12 kilometres from City Centre towards Kolkata and Birudiha is at a distance of 3/4 kilometres from Banskopa towards Kolkata. He further stated that the appellant was arrested at about 3- 00 p.m. on June 29, 2009 at City Centre Office. The appellant wrote his statement after 3-00 p.m. He stated that all powers of officer in-charge of a police station have been entrusted upon the members of the raiding party as per provisions of Narcotic Drugs and Psychotropic Substances Act. He stated that the addresses and fathers' names of the independent witnesses, who signed on the seizure list, have not been mentioned in the seizure list. Notices were issued on the independent witnesses, namely, Utpal and Pintu Chowdhury on July 16, 2009. The statement of Pintu Chowdhury was recorded on July 30, 2009 and that of Utpal Chowdhury was recorded on July 31, 2009. The owner of the offending vehicle was also one of the witnesses in the instant case.
Prosecution witness no. 2, namely, Liakat Ali was the Deputy Magistrate, who had been summoned by the prosecution witness no. 1 to witness the search. He deposed that on June 29, 2009 at about 1-30 p.m. as per direction of the then Sub Divisional Officer, Durgapur, he went to the Excise Officer at Durgapur and remained present at the time of search of the appellant. Upon being asked the appellant disclosed his identity and that he was driving the offending vehicle. He proved his signature on the note sheet which was prepared by him at the time of search of alamats which were found in the offending vehicle.
The prosecution witness no. 3, namely Seklhar Mondal, was the Deputy Excise Collector at that time. He deposed that he sent the samples for chemical examination. He proved the advice of sample despatched for chemical examination which was signed by him. The advice was exhibited as Exhibit- 4/1.
Prosecution witnesses no. 4 and 5 were the constables who had accompanied the prosecution's witness's no. 1 in the course of raid. They have corroborated the evidence of prosecution witness no. 1. They proved their signatures on the seizure list and on the labels of the contraband and the samples.
Prosecution witness no. 6 is the independent witness of search and seizure. He deposed that on June 29, 2009 at about 10-30 a.m. he was returning from the house of one of his relatives. He was waiting at Banskopa Bus Stop for availing a bus. At that time he noticed a Tata Sumo Car was chasing a Maruti Van. The Tata Sumo car overtook the Maruti Van and stopped it. Thereafter the person driving the Maruti Van was brought out. Out of curiosity he along with others went to the spot. In the Maruti vehicle there was none except the driver. He came to know that the Tata Sumo car belonged to the Excise Department. He noticed number of bags inside the Maruti vehicle and when the excise personnel tore open the bags, he found that the bags contained of poppy straw. The excise personnel requested the people at the gathering to witness the seizure. He along with another person agreed to witness the seizure. As per the request of the excise personnel they went to City Centre Office in the vehicle of the Excise Department along with the appellant. The excise officials weighed the seized bags at their office. The excise officials also drew samples from the seized bags and seized the alamats under a proper seizure list. On the seizure list and on the labels affixed on the seized bags he put his signature. He identified the seized bags and his signature thereon. He also proved his signature on the seizure list.
In cross examination, the prosecution witness no. 6 stated that he was working in a Show Room of Sreeleathers at the relevant point of time. He further stated that he had no relative or friend at Banskopa village. Amrai village, where he resides, is towards west of Durgapur. At the relevant point of time his place of work was at Benachity Bazar, which is at a distance of five kilometre from his village and on the eastern side of his village. Banskopa is at the eastern side of Durgapur. He further deposed that he is unable to state the distance of Bandkopa village from Durgapur. He deposed that he went to the house of one of his relatives, namely, Chandan Saha, at Pangarh village on the date of occurrence. From Pangarh village he came to Banskopa bus stoppage by motor cycle of Chandan Saha, who dropped him at Banskopa bus stoppage.
From the aforesaid evidence on record it appears that on the fateful day i.e. 29th June, 2009 in the morning P.W. 1 along with his superior P.W. 3 and two constable P.Ws. 4 and 5 were on patrol duty when he received a secret information that a maruti van bearing no. WB-38E/1559 would be carrying poppy straw towards Panagarh. Such information was immediately reduced into writing (exbt. 2) by P.W. 1 and on permission of his superior P.W. 3 he proceeded to work out the information. While waiting at the spot, around 10.15 a.m. they found the vehicle was proceeding towards Panagarh. They chased the van and intercepted it. Upon interception they found that the said van contained nine plastic bags of materials suspected to be poppy straw. On interrogation the appellant admitted that he was carrying poppy. They offered him to be searched in presence of a Gazetted Officer or Magistrate. He wished to be search before a Magistrate. On their request two persons who had gathered at the spot agreed to join in the search. Thereafter, the appellant along with the contraband and the independent witnesses were taken to the Durgapur office of Excise department and on the requisite of P.W. 1, a Deputy Magistrate, Liakat Ali (PW2) was sent by the SDO to witness the search. Appellant was searched in presence of P.W. 2 and a driving licence and registration certificate was recovered from his person. No narcotic substance was recovered from the person of the appellant and, therefore, in our opinion, the question of compliance of the requirements of Section 50 of the NDPS Act does not arise in the facts of the instant case. On the other hand, in the course of search of the vehicle driven by the appellant, nine bags containing poppy straw were seized under a seizure list. The said alamats were kept at the excise office upon permission being granted by the Magistrate. The samples drawn were thereafter dispatched for chemical examination and the chemical examiner's report confirmed that the seized articles contained opium (exbt. 4). The said search and seizure had been affected between sunrise and sunset and, therefore, compliance of proviso to Section 42(2) also does not arise. P.W.1 had duly recorded the prior information giving rise to the reasonable believe to conduct the search and seizure as exhibit 2 and such document was duly shown to his superior Deputy collector (PW 3) and upon his permission P.W.1 proceeded to conduct the search. Hence, there is due compliance of sections 42(1) and (2) of the Act.
We are, therefore, of the opinion that there was due compliance of all the requirements of law in the course of search and seizure in the instant case resulting in recovery of 101 kgs. of poppy straw from the possession of the appellant who was driving the vehicle.
The fact that the appellant was driving the vehicle alone with a large consignment of 101 kgs. of poppy straw leaves no doubt in one's mind that he was in conscious possession of the narcotic substance. In the aforesaid factual backdrop onus shifts upon the appellant to rebut the statutory presumption against culpable mental state or mens rea vis-à-vis the possession of the narcotic substance. Save and except taking the plea that the seizure had not taken place at the spot or in the manner as proposed by the prosecution no cogent evidence has been led by the defense to justify licit possession of 101 kgs. of poppy straw. It has been strenuously argued that in the requisition (Ext 5) submitted by P.W. 1 before the magistrate the place of seizure had been mentioned as village- 'Birudiha' instead of 'Banskopa more'. It is also submitted that village-Birudiha is at a considerable distance from the P.O and is the place of residence of the owner of the vehicle who has not been implicated in the instant case. Hence, there is confusion as whether the narcotics were at all seized from the appellant at Banskopa more, as alleged. We are unable to accept such plea in the face of the clear and convincing evidence of the prosecution witnesses as to the interception of the vehicle driven by the appellant carrying 101 kgs. of poppy straw at Banskopa bus stand. The misquoting of the place of seizure in the aforesaid requisition appears to be a slip of the pen by P.W.1. That apart, we are of the opinion that the defence cannot take advantage of the aforesaid clerical error in the requisition slip (exbt. 5) as the witnesses, i.e. P.W.1 had not been confronted with the said document (exbt. 5) in the course of his cross-examination with regard to such error. We, however, are loath to rely upon the purported voluntary statement (exbt. 10) of the appellant in this case. Although, P.W. 1, in chief, stated that the voluntary statement was given by the appellant prior to his arrest, in cross-examination, he admitted that such statement had been obtained after effecting arrest of the appellant. Such inconsistent version of P.W. 1 as to the status of the appellant at the time of making the statement leaves doubt in our mind as to its voluntariness. However, such deficiency of the prosecution case is of little help to the appellant in the face of the consistent and cogent evidence of the official witnesses which is wholly corroborated by the independent witness P.W. 6. The evidence of the independent evidence P.W. 6 has been severely criticized by learned counsel of the appellant on the ground that he is not a resident of the locality and is a pocket witness of the raiding party. We find that the incident had taken place on a national highway and, therefore, the likelihood of people residing in and around the said highway is remote. No doubt there is evidence that there were some shops in and around the locality but in view of the fact that P.W. 6 had clearly explained the circumstances in which he happened to be present at the spot, we have no doubt in our mind that he is a truthful witness of the incident. Finally, we come to the issue as to whether the prosecution case founded not only the evidence of the official witnesses but corroborated by the independent witness P.W. 1 ought to be disbelieved on the ground that the investigation was conducted by the de facto complainant himself. Reliance has been placed in this regard on Rajangam (supra).
In the said report it appears that the evidence of the official witnesses had not been corroborated by any independent witness and in that factual backdrop the Apex Court considered it prudent to uphold the acquittal of the accused on the ground that one of the members of the raiding party was the Investigating Officer.
In the present case, the evidence of the official witnesses appears to find support from P.W.6, an independent witness. That apart, no prejudice is shown to have been caused to the appellant in the course of investigation of the case. Moreover, the most vital part of the investigation, namely, the custody of the seized alamats after seizure was with P.W.3 and the dispatch of samples for chemical examination was also done by P.W.3 and not by P.W.1. The aforesaid report is thus clearly distinguishable on facts from the present case and the same is of little assistance to the appellant. On the other hand, in S. Jeevanantham vs. State Through Inspector of Police, T.N., (2004) 5 SCC 230, the Apex Court held that in the absence of prejudice being shown by the appellant mere investigation by the police officer himself would not render the prosecution invalid. Similar view has also been expressed in Bhaskar Ramappa Madar & Ors. vs. State of Karnataka, (2009) 11 SCC 690.
Reliance has also been placed on Pradeep Narayan Madgaonkar vs. State of Maharashtra, (1995) 4 SCC 255. In the said case, the independent witnesses were not believed as one was a pocket witness and the other was a friend of the said witness. There is nothing on record to show that P.W.6 had been cited as prosecution witness by the Excise Officers in other case or that there was an affinity between him and the said officers so as to discredit their version. Hence, the aforesaid authority is also of no assistance to the appellant.
In view of the aforesaid discussion, we uphold the conviction and sentence of the appellant.
The appeal is, accordingly, dismissed.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Moushumi Bhattacharya, J.) Item no. 2 S.D/DNS/Aloke/AB & PA