Calcutta High Court (Appellete Side)
Akram Ali @ Sk. Akram Ali vs Narcotics Control Bureau And Anr on 31 July, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi & The Hon'ble Justice Ravi Krishan Kapur C.R.A. 457 of 2017 Akram Ali @ Sk. Akram Ali
-vs-
Narcotics Control Bureau and Anr.
For the Appellant : Mr. Moinak Bakshi, Adv. For the State : Mr. Rudradipto Nandy, Adv. Heard on : 31.07.2018 Judgment on : 31.07.2018 Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 29th August/31st August, 2015 passed by the learned Judge, Special Court under the NDPS Act, Purba Medinipur at Tamluk in T.R. (NDPS) No. 10/11 convicting the appellant for commission of offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentencing him to suffer imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default, to suffer further simple imprisonment for two years more.
The prosecution case as alleged against the appellant is to the effect that on 17th December, 2011 at 03:25 hrs. a source information was received at Marishda Police Station that one pickup van (Tata ACE) with 'Nafisa' and KGN inscribed on its body would be carrying a huge amount of Ganja through Digha- Mecheda State Highway for sell to someone at Digha for valuable consideration. The said information was diarised and upon the direction of Officer-in-charge, Marishda Police Station, Naba Kumar Rajwar (P.W. 1) along with others went out to work out the said information. Nishanta Mukherjee, B.D.O., Contai-III and Debasish Ray, Circle Inspector, Contai, a Gazetted Officer were intimated and were requested to assist the raiding party. P.W. 1, Naba Kumar Rajwar along with other officers left in police vehicles with necessary articles like paper, carbon paper, cloth, stamp pad, sealing wax, metal specimen, scale etc. to the spot. Circle Inspector Debasish Roy also accompanied the raiding party. P.W. 1 requisitioned one Ashok Dhara to provide weighing scale along with weights of 100 grams to 20 kg. for the purpose of weighing. At 06:25 hrs. the police party reached Digha-Mecheda State Highway near Sillibari about 50 mtrs. north of the Block Development Office and kept watch at the spot. They requested local persons namely, Ashok Pradhan, Kaushik Dwibedi and Anjan Jana to join them in the raid. They agreed to do so. At 08:30 hrs. on being identified by source they saw one pickup van was approaching from Heria side. The police party stopped the said vehicle. The driver tried to flee but was apprehended. He disclosed his identity. P.W 1 disclosed his identity and asked the suspect whether he would like to be searched in presence of Executive Magistrate or a Gazetted Officer. He issued written notice to the suspect in that regard. He expressed his desire to be searched in presence of Executive Magistrate. Accordingly, Nishanta Mukherjee, B.D.O., Contai-III was requested to come to the spot. Executive Magistrate again issued notice upon the suspect whether he was willing to be searched in his presence. He expressed his willingness to do so. Thereafter, the vehicle was searched and 15 plastic sacks were found in the vehicle covered with blue tarpaulin. On opening each sack police found Ganja inside the sack. On interrogation the suspect confessed that he was carrying Ganja. Thereafter by using weights and scale the entire consignment was weighed and it was found to be 300 kg. From the fifteen plastic sacks, samples of 100 grams were drawn from each sack. The entire consignment along with the pickup van and other articles were seized. The appellant along with the seized articles were brought to the police station and P.W. 1 lodged written complaint resulting in registration of Marishda Police Station Case No. 158 of 2011 dated 17th December, 2011 under Section 20(b)(ii)(c) of the NDPS Act. Samples were sent for chemical examination and upon receipt of chemical examiner's report, charge sheet was filed against the appellant. Charge was framed under Section 20(b)(ii)(c) of the NDPS Act. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 10 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 29th August/31st August, 2015 convicted and sentenced the appellant, as aforesaid.
Mr. Moinak Bakshi, learned advocate appearing for the appellant submitted that the seizure of narcotics from the possession of the appellant has not been proved beyond doubt. Although P.W. 1 did not find any label attached on the plastic sacks produced in Court, other witnesses noted the labels on the said sacks. He also submitted that there is dichotomy in the evidence of P.W. 1 with regard to the number of sacks which were found in the court room during trial. He also submitted that there was no compliance of the provisions of Sections 42(2) and 50 of the NDPS Act at the time of seizure in the instant case. Consignment and samples were not sealed by the Officer-in-charge of the police station and the Malkhana Register has also not been produced. Hence, the live link between the articles seized and the samples sent for chemical examination has not been established beyond doubt. Report of seizure was not made to superior. He accordingly, prayed for acquittal of the appellant.
On the other hand, Mr. Rudradipto Nandy, learned advocate appearing for the State submitted that the sacks bore markings which were identified by P.W. 1 in court and they had also been identified in court by all the prosecution witnesses. Evidence on record also establishes the fact that the sacks were seized and after samples were drawn they were sealed. The seal on the samples tallied with the one which was sent for chemical examination and therefore, divergence in the deposition of prosecution witnesses with regard to labels on the seized sacks produced in Court cannot militate against the truthfulness of the prosecution case. Seizure was effected from a public place and did not attract the provisions of Sections 42 and 50 of the NDPS Act. Seizure had been effected in the presence of the CI of Police and Executive Magistrate and therefore, failure to affix seal after the seized articles were brought to the police station or submission of report to superior officer in terms of Sections 55 and 57 of the NDPS Act did not prejudice the appellant. Appellant failed to rebut the statutory presumptions under Sections 35 read with 54 of the NDPS Act as to culpable mental state and commission of the offence and therefore, the conviction and sentence does not call for any interference.
P.W. 1, Naba Kumar Rajwar, S.I. of police was attached to Contai police station at the time of the incident. On 17.12.2011 at 3.25 a.m. he received intimation from the source that a pick up van carrying ganja would cross the Mecheda- Digha Highway located within the jurisdiction of Marishda Police Station at around 8.30/9 a.m. He lodged general diary and reported the matter to Officer-in-Charge, Marishda Police Station. Officer-in-Charge reported the same to his superior officer over telephone. He also contacted the Inspector, Debasish Roy, C.I. Contai and Mr. Nishant Mukherjee, BDO, Contai-III. As per instruction of Officer-in-Charge, Marishda Police Station, he requested them to remain present at the time of search and seizure, if necessary. Thereafter, along with A.S.I., Debabrata Goswami, and A.S.I., Subrata Dasgupta went to Silibari with force comprising 4 to 5 police constables. They requested three passers-by to join them for witnessing the raid. One of them was Ashok Pradhan. He could not recollect the names of the other two persons. They agreed to join them in the raid. At 8.30 a.m. the source identified the pick up van. They intercepted the vehicle. When the driver of the vehicle declined to permit them to conduct the search he served a notice upon him asking him to permit him to conduct search. The driver told him that he would permit him to conduct search in presence of a Magistrate. On interrogation the driver disclosed his identity. He contacted B.D.O. Contai-III, Mr. Nishant Mukherjee and requested him to come to the spot. Mr. Nishant Mukherjee arrived at the spot. On search 15 white polythene sacks were found from the pick-up van which were covered by a tarpaulin sheet. Sacks were opened and ganja like substance wrapped in polythene sheet and newspapers were recovered from each sack. Smell of ganja was emanating from those sacks. Weight of each polythene sack was 20 kg. Sample measuring around 100 grams were collected from each polythene sack for chemical examination. He seized the vehicle, its papers and 15 sacks containing ganja like materials under a seizure list in presence of the witnesses. C.I., Contai and B.D.O., Contai-III also signed the seizure list. Signature of the accused was also taken in the seizure list. Copy of the seizure list was also supplied to the accused. Thereafter he arrested the accused disclosing the grounds of arrest. They went back to the police station with the accused, seized polythene sacks and vehicle. He lodged F.I.R. with the Officer-in-Charge, Marishda Police Station and handed over the seized articles and the seizure list to the Officer-in-Charge, Marishda Police Station. F.I.R. was marked as Ext. 1. The seizure list bore the signature of Mr. Nishant Mukherjee and Inspector Debasish Roy. It also bore the signatures of A.S.I., Debabrata Goswami, constable Satyajit Pan marked as Exts. 2/1 and 2/9 respectively.
P.W. 2, Ashok Pradhan, P.W. 3, Anjan Jana, and P.W. 4 Kaushik Dwibedi are the independent witnesses of the search. P.W 2 deposed that police officer of Marishda Police Station had called them to witness the search. At about 11.00 a.m. a vehicle came to the spot from Digha Mecheda Highway near Contai-III Panchayat Samity Office. The police intercepted the said vehicle. The registration of the said vehicle was WB 23C/3844. The colour of the vehicle was off-white. C.I. came to the place of occurrence along with Contai-III, B.D.O., Nishant Mukherjee. The said vehicle was covered with blue coloured polythene. The cover was unfolded and 15 plastic sacks were detected inside the said vehicle. The police told them that the sacks contained ganja. Police weighted the plastic sacks with a manually operated weighing scale. 15 sacks were seized at the place of occurrence. The weight of each sack was 20 kg. Police called them at the police station and prepared the seizure list. He signed at the police station. The pick up vehicle was a commercial vehicle. He also identified the signatures on the seizure list as well as on thirteen labels. He identified the sacks in Court. P.Ws 3 and 4 have corroborated the evidence of P.W. 2 and proved their signatures on the seizure list and thirteen labels affixed to the seized sacks. They also identified the sacks containing ganja in Court.
P.W. 5, constable Satyajit Pani, and P.W. 6, constable Falkumar Mondal, were posted at Marishda Police Station at that time. P.W. 9, Subrata Dasgupta, was posted at Marishda Police Station as A.S.I. of police. They were the members of the raiding party. They substantially corroborated the evidence of P.W. 1 and they also proved their signatures on the seizure list and thirteen labels on the sacks. They identified 15 polythene sacks containing ganja in Court.
P.W. 7, Nishanta Mukherjee, was posted at Contai-III as B.D.O at the material point of time. He received information from P.W. 1 Naba Kumar Rajwar over telephone that a vehicle was likely to pass Mecheda Digha Highway containing ganja and he was requested to attend the place of occurrence for the purpose of search and seizure. At around 9.30 a.m. he again received information P.W. 1 that a pick up vehicle bearing registration no. WB23C/3844 had been intercepted and a written requisition was sent to him to attend the search and seizure. He proved the requisition marked as Ext. 3/1. On the basis of the requisition he went to the place of occurrence. He found that the appellant was sitting inside the vehicle. He informed him in writing that the police officer intended to search his vehicle. Accused gave consent to the search. He proved the notice marked as Ext. 4. On the search of the vehicle 15 polythene sacks were found inside the vehicle. Those sacks were opened and dry leaves smelling of ganja were found. A local person was called to make measurement of the sacks. 100 grams of ganja were derived from each sack towards sample for chemical examination. All the 15 sacks were seized by the police officer. He signed on the seizure list as witness. The sacks were sealed and labelled. He identified 13 labels affixed to the sacks in Court. He also identified the sacks in Court.
P.W. 8, Inspector Debasis Roy, was posted at Contai to the post of C.I., Marishda Police Station. On 17.12.2011 S.I., Naba Kumar Rajwar, informed him that they had received source information that a vehicle carrying ganja was likely to ply through Digha-Mecheda Highway. He was requested to come to the place of occurrence as a Gazetted Officer. He directed S.I., Naba Kumar Rajwar, to inform B.D.O. of Contai-III to be present at the place of occurrence as Executive Magistrate. On that day at around 6.00 a.m. he reached the Police Station. He along with raiding party reached at Silibari at around 6.30 a.m. The vehicle bearing registration no. WB 23C/3844 came from Heria side and was proceeding towards Contai. They intercepted the vehicle. The driver was trying to flee away but they managed to apprehend him. He disclosed his identity. P.W. 1 issued notice to the accused expressing their desire to search him in presence of a Gazetted Officer or Executive Magistrate. The accused agreed to get himself searched in presence of Executive Magistrate. Executive Magistrate, B.D.O., Contai-III reached the place of occurrence. Thereafter in presence of the Executive Magistrate and himself the person of the accused together with the vehicle were searched by the members of the raiding party. During the course of search 15 white polythene sacks were found in the said pick up van. Each of those sacks were wrapped with a blue polythene and newspapers. Smell of ganja was coming out from those sacks. The sacks were opened and greenery leafy substances wrapped in a polythene sheet and newspapers were recovered from each sack. The weight of each of the polythene sack was 20 kg. S.I., Naba Kumar Rajwar, seized 15 sacks under proper seizure list. He also took sample measuring 100 grams each from all the 15 sacks for chemical analysis. Vehicle was also seized. He identified his signature on the seizure list as well as the lables. He identified the polythene sacks in Court.
P.W. 10, Sanjoy Sribastava, was posted at Marishda Police Station as Officer-in-Charge. He was the investigating officer in the instant case. He received written complaint from S.I. Naba Kumar Rajwa and drew up formal F.I.R. marked as Ext. 5. He took up investigation of the case and visited the place of occurrence. He drew up sketch map with index, recorded statements and interrogated the accused. He sent the samples of ganja for chemical examination before the State Drugs Control and Research Laboratory, Kolkata. He collected the report of chemical examination and after completion of investigation he submitted charge-sheet the principal accused. He proved the rough sketch map with index marked as Exts. 6 and 6/1 respectively. He also proved the chemical examination report marked as Ext. 7. He identified the appellant.
In cross-examination, he admitted that he did not seal the samples of the seized articles in terms of Section 55 of the NDPS Act. From the case diary, it does not appear that the report of the particulars of the arrest was sent by P.W. 1 to immediate superior within 48 hours as per Section 57 of the NDPS Act.
From the evidence on record, it appears that on source information which was diarised and upon direction of his superior, namely, Officer-in-charge, Marishda P.S., P.W. 1 along with others proceeded to Silibari on the Digha-Mecheda Highway to apprehend a vehicle which was carrying a large quantity of ganja for sale. They arrived at the spot and requested independent witnesses to join the search and seizure. P.Ws. 2, 3 and 4 agreed to join the search. Around 8.30 P.M. a pick up vehicle bearing Registration No. WB-23C-3844 was seen coming from Heria side and on being identified by source the vehicle was intercepted. The driver was initially unwilling to permit search of his vehicle and evidence has also come on record that he tried to flee away but was apprehended. Then he disclosed his identity as the appellant. P.W. 1 issued notice upon him whether he would like to be searched in presence of a Gazetted Officer or Executive Magistrate. He chose the latter. Thereupon P.W. 7, B.D.O., Contai-III was requested to come to the spot. P.W. 7 came to the spot and again issued notice upon the appellant. The appellant agreed to be searched in his presence. Upon search of his vehicle, 15 white polythene sacks containing ganja like substances were found. The sacks were weighed and each sack was found to be 20 kg. P.W. 1 seized the said sacks and drew samples measuring around 100 grams from each sack. The sacks and samples were thereafter sealed. The entire process was done in the presence of P.W. 7, B.D.O. as well as P.W. 8, Debasish Roy, Circle Inspector of Police. Thereafter the appellant along with seized consignments was taken to the police station. P.W. 10 took up the investigation and samples were sent for chemical examination and the report of chemical examination (Ext. 7) confirmed that the seized samples contained ganja.
It has been argued that there is discrepancy as to the number of sacks produced in court as well as the presence of labels on the said sacks.
I have considered the evidence of prosecution witnesses in that regard. P.W. 1 did not find any label on the seized sacks in Court although 13 labels were noted by other prosecution witnesses. Analysis of the evidence of P.W. 1 as a whole would show that the identity of the 15 sacks produced in Court cannot be doubted as the sacks had been specifically marked 'A' to 'O' and such marks were found on the body of the sacks. That apart, there is amply evidence on record that the sacks and samples had been duly sealed at the place of occurrence and the seal on the samples corresponded to that which had been sent for chemical examination.
In view of such unimpeachable evidence on record with regard to the identity of the seized consignment which had been produced in court, minor variation with regard to the presence of labels on the sacks do not militate against the truthfulness of the prosecution case. It is also important to note that the seizure list bore the signatures not only of the members of the raiding party but also of other independent witnesses. It is nobody's case that the independent witnesses, namely, P.Ws 2 and 4 were pocket witnesses of the police or could be influenced to support the prosecution case of seizure of 300 kg. of ganja from the vehicle of the appellant. It has been strenuously argued that the weighing machine had been produced to this court. I have scanned the evidence on record and I do not find any challenge thrown to the correctness of the weighment made in the instant case. Hence, no prejudice can be said to have been caused to the appellant by the non-production of the weighing machine in Court. It is also pertinent to note that the entire consignment of ganja in 15 plastic sacks weighing 300 kg. in all were produced in Court. Had the appellant seriously doubted the weighing procedure, he could have called upon the trial Court to verify the weight of the seized alamat, which he chose not to do exposing the frivolity of such plea.
In view of the aforesaid facts, I have no doubt in my mind that the ganja weighing about 300 kg. was seized from a pick up track which was driven by the appellant down the Digha- Mecheda Highway. As the seizure had been effected from a pick up truck which was a commercial vehicle on a public highway, I am of the opinion that the appellant could not have derived advantage of any alleged infraction of Section 42 or Section 50 of NDPS Act. It is apposite to note that the seizure had been effected not only in the presence of a superior police officer, namely, C.I. of Police, P.W. 8 but also in the presence of an independent Executive Magistrate, P.W. 7. Presence of such superior public servants at the time of search, therefore, rules out any possibility of prejudice to the appellant on the plea of non-compliance of Sections 55 and 57 of the NDPS Act as argued in the present case. Finally, it has been argued that the appellant did not have conscious possession of the seized ganja. Undoubtedly the appellant was driving the vehicle from which 300 kg. of ganja in 15 plastic sacks were recovered. Such recovery has been duly proved in the instant case and it was incumbent on the appellant to rebut the statutory presumptions as to culpable mental state and commission of the offence in terms of Section 35 read with Section 54 of the NDPS Act. No effort had been made by the appellant to rebut the aforesaid statutory presumptions. On the other hand, it has come from the mouths of the prosecution witnesses that the appellant tried to flee away from the spot and was apprehended clearly exposing his culpable state of mind.
In the light of the aforesaid discussion, I have no doubt in my mind that the prosecution has been able to prove its case beyond reasonable doubt.
Conviction and sentence imposed on the appellant are upheld. 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.
Accordingly, the appeal is dismissed.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) akd/sd /rkd & PA