Calcutta High Court (Appellete Side)
Indadul Haque @ Imdadul Haque @ Intaj @ ... vs The State Of West Bengal on 8 March, 2016
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. 640 of 2011
Indadul Haque @ Imdadul Haque @ Intaj @ Inta @ Entaj @ Enta
Versus
The State of West Bengal
For the appellants : Mr. P. S. Bhattacharya
For the NCB : Mr. Somnath Banerjee
Heard on : 9/10.2015, 14/10/2015, 16/11/2015, 17/11/2015, 19/11/2015 and 30/11/2015
Judgment on: 08/03/2016
Debasish Kar Gupta , J. :
This is an appeal arising out of a judgment and order of conviction dated September 22, 2011 and sentence dated September 23, 2011, passed by the Learned Judge, Special Court under N.D.P.S. Act, Murshidabad at Berhampore by which the appellant was convicted for commission of offence punishable under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act, 1985) and sentenced him to suffer rigorous imprisonment for 12 years and to pay a fine of Rs.1,50,000/-, in default to suffer rigorous imprisonment for a further period of one year. The period of detention which had already undergone by the appellant was directed to be set off under Section 428 of Criminal Procedure Code (hereinafter referred to as Cr.P.C).
The facts of the case, in a nutshell, are as follows:-
On August 20, 2007, at about 6 p.m., Sri Ganesh Chandra Jana, Intelligence Officer Eastern Region, Narcotic Control Board, Calcutta, (PW
3), received one secret information from the Border Security Force, Rausanbagh, Murshidabad, that the appellant had been proceeding towards Bangladesh Border with huge quantity of narcotic substances (Heroin) with him. He noted down the information in writing and informed his superior officer. He was appointed as Investigating Officer in the matter by his higher authority. After obtaining permission from his superior officer, he left the office with his raiding team and reached Berhampore on August 21, 2007, at 02.00 hours. Then, they went to the Border Security Force Camp situated at Rausanbagh, District- Murshidabad. Thereafter, having short discussion with the B.S.F. Officers, they proceeded towards the Border Security Force Camp situated at Asariadah, Police Station-Lalgola, District-Murshidabad, along with the members of his raiding team as also other Border Security Force Personnel.
On January 21, 2007 at about 08.50 hours they encircled the appellant being identified by the informer at the crossing of Markati nala (a small nala) near Bangladesh Border. The appellant was carrying a bag in his hand. After disclosing the identities of the members of raiding team to the appellant, the PW 3 expressed the intention of searching his baggage. PW 3 gave option to the appellant to exercise his right to be searched in presence of a Magistrate or a gazetted officer.
According to the prosecution case, the appellant declined to exercise his aforesaid right in case of searching him. The raiding team called two persons from the onlookers as witness to the search. The appellant handed over his baggage to the PW 3 voluntarily. Three packets of brown substance were recovered from that baggage of the appellant. Samples of the same were tested. Those were found to be "heroin". The total weight of the recovered "heroin" was 1 kg.500 gms. The above packets of "heroin" were seized under label. Three packets of samples of those articles containing 5 grm. each were prepared in duplicate. Left thumb impression of the appellant was obtained on the seizure list as also on the labels of the aforesaid packets. Signatures of the above natural witnesses were also obtained on the same. Thereafter, the members of the raiding team served a notice under Section 67 of the NDPS Act, 1985, upon the appellant with a direction for his appearance in the Camp Office at Sarat Pally, Chuanpur at Berhampore. According to the prosecution, the location of the Camp Office was not known to the appellant and the raiding team took him to the above office. Further, the appellant made a voluntary statement in the above office admitting his guilt. The raiding team arrested the appellant.
On the basis of information disclosed by the appellant in his aforesaid statement, a raid had been conducted at the house of one Alam Kabir @ Alam Sk. @ Abdus Salam (hereinafter referred to as Alam Kabir) on October 26, 2007, but no contraband article was recovered from his house. Thereafter, in spite of serving repeated notices under Section 67 of the NDPS Act, 1985, the aforesaid Alam Kabir did not appear before the PW 3 at his office.
Ultimately, a complaint in final form was filed by the Narcotic Control Board in the Court of learned Judge, Special Court (NDPS Act), at Berhampore, District-Murshidabad, West Bengal, bearing NCB Crime No.10/NCB/Kol/2007, NDPS Case No.68/2007, with a prayer for issuing warrant against the co-accused, the said Alam Kabir. Subsequently, the above accused person surrendered before the Court.
On the basis of the above complaint, charge was framed against the appellant under Section 21 (c) read with Section 29 of the NDPS Act, 1985, on November 11, 2008. Charge was also framed against the other accused Alam Kabir on January 6, 2009 for commission of offence of offence under section 29 read with Section 21 (C) of the N.D.P.S. Act, 1985. After examining 5 prosecution witnesses including the complainant-cum-seizing officer, as also after recording the statements of the appellant and the said Alam Kabir, the impugned judgment was passed.
Appearing on behalf of the appellant, it is submitted by Mr. Partha Sarathi Bhattacharya, learned Advocate, that the impugned judgment is not sustainable in law for the following reasons:-
(i) Girish Nandan Pandey, Intelligence Officer, Narcotic Control Bureau, Kolkata had no locus-standi to lodge the complaint dated January 22, 2008;
(ii) The search of the appellant was conducted in violation of the provisions of Section 50(1) of the NDPS Act, 1985;
(iii) The seizure of alleged contraband article (heroin) on January 21, 2007 at 08.50 hours was not proved beyond any reasonable doubt in accordance with law. Keeping of the seized "heroin" in custody of the investigating agency, after its seizure, was not proved beyond reasonable doubt. Production of the aforesaid seized article before the Court was also not proved beyond reasonable doubt due to the above reason;
(iv) Recording of statement of the appellant admitting his guilt was not proved beyond reasonable doubt. There were contradictions in the evidence of prosecution witnesses touching the root of the prosecution case;
(v) The service of notice under Section 67 of the NDPS Act, 1985, was not proved beyond reasonable doubt;
(vi) There were contradictions in the evidence of prosecution witnesses touching the root of the prosecution case;
Mr. Bhattacharya relied upon the decisions of Ritesh Chakravarti vs. State of M.P., reported in (2006) 12 SCC 321, Dilip & Anr. vs. State of M.P., reported in (2007) 1 SCC (Cri) 377, Union of India vs. Bal Mukund & Ors., reported in (2009) 12 SCC 161, Raju Premji vs. Customs, NER, Shillong Unit, reported in (2009) 16 SCC 496, Union of India vs. Shah Alam & Anr., reported in AIR 2010 SCC 1785, Ashok @ Dangra Jaiswal vs. State of Madhya Pradesh, reported in (2011) 5 SCC 123, State of Rajasthan vs. Parmanand & Anr., reported in 2014 (2) AICLR 151 SC, Mainul Haque & Anr. vs. The Union of India represented by Narcotics Control Bureau and The State of West Bengal, reported in (2014) 3 C Cr LR (Cal) 763, Jyengo Ghale vs. State of West Bengal, reported in (2007) (2) CLJ (Cal) 305, Obie Kwe Emeanu vs. State of Maharashtra, reported in (2003) 11 SCC 317, Shanti Lal vs. State of M.P., reported in 2008 CRI. L. J. 386, State of Delhi vs. Jitti, reported in 2008 CRI. L. J. 358, Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, reported in 2012 (4) Crimes 309 (SC) in support of his above submissions.
On the other hand, it is submitted by Mr. Somnath Banerjee, appearing on behalf of the respondents, that the PW1 was duly authorized by the competent authority to lodge the complaint.
According to him, the contraband article (heroin) was recovered from the bag which the appellant had been carrying on his right hand and the same was handed over to the PW 2, a member of the raiding team, by the appellant voluntarily after his own disclosure that the same contained "heroin". According to him, compliance of the provision of Section 50(1) of the N.D.P.S. Act, 1985, was not required as it was a case of search of a bag which was carried by the appellant.
According to Mr. Banerjee, the search and seizure of the contraband article from the appellant was proved beyond any reasonable doubt from the evidence of the prosecution.
It is further submitted by him that the Notice under reference was served in due compliance of the provision of section 67 of the N.D.P.S. Act, 1985.
It is also submitted by Mr. Banerjee that the statement of the appellant admitting the fact of carrying illicit article was recorded, read over and explained to him in accordance with law in presence of witnesses.
Finally, it is submitted by Mr. Banerjee that there might be minor discrepancies in the evidence of the prosecution for which the ultimate finding of the Learned Trial Judge could not be vitiated.
Reliance is paced by Mr. Banerjee upon the decisions of Kulwinder Singh & Anr. vs. State of Punjab, reported in 2015 (3) AICLR 568 (S.C.) 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, Jarnail Singh vs. State of Punjab, reported in AIR 2011 SC 964, Pon Adithan vs. Deputy Director, Narcotics Control Bureau, Madras, reported in (1999) 6 SCC 1, Hema vs. State, Thr. Inspector of Police, Madras, reported in 2013 (1) Supreme 627 SC, Megh Sigh vs. State of Punjab, reported in (2003) 8 SCC 666 in support of his above submissions.
Having heard the Learned Counsel appearing for the respective parties as also giving our anxious consideration to the facts and circumstances on the basis of the evidence of record, we have examined the decision making process of the Learned Court bellow as under :-
A. Lucus-Standi of the PW1 to lodge Complaint :
PW 1 was working for gain in the post of Intelligence Officer, Narcotics Control Bureau, (hereinafter referred to as the NCB), Eastern Zonal Unit, Kolkata. Admittedly, he filed the complaint dated January 22, 2008, before the Learned Trial Court against the two accused person including the appellant for commission of offence punishable under Section 21(c) & 29 of the N.D.P.S. Act, 1985. According to his evidence adduced in course of cross examination, C.D. Zonal Director was his higher authority and the above compliant did not bear any endorsement of the Zonal Director. Neither it was mentioned in the above complain that he had obtained permission from the competent authority nor he could remember the memo. number or the date of getting permission of that authority. He further admitted in cross examination that had no authority to file the written complaint without such permission. He was not a member of the aforesaid raiding team being led by PW 3, an Intelligence Officer at Eastern Region, NCB, Kolkata, which had been constituted obtaining necessary permission from the superior officer. He was not entrusted with the responsibility by the competent authority of the NCB to conduct investigation in the matter. Though it was admitted by him in cross examination that the same was based on documents, his complaint was not accompanied by a list of relevant documents. The Learned Trial Judge did not consider the above facts. So, his decision making process suffered from procedural impropriety for non- consideration of relevant factors to arrive at the right conclusion in this regard.
B. Violation of Section 50(1) of the N.D.P.S. Act,1985 : In order to examine the decision making process of the Learned Trial Judge, in respect of the next contention of the appellant that he was searched in violation of the provision of Section 50 (1) of the NDPS Act, 1985, we find that PW 3 was the leader of the raiding team. He made the appellant aware of his right to be searched in presence of a Magistrate or a Gazetted Officer. According to his evidence, the appellant declined to exercise his above right in case of searching him. The appellant voluntarily handed over a bag, which he had been carrying on his right hand, to the PW
3. It was opened and three packets containing illicit article were recovered from the above bag. The above evidence was corroborated by the PW 2.
According to the evidence of PW 5 also, three packets containing illicit article (heroin) were recovered from the above bag of the appellant. The above contraband article was seized by the raiding team. The basis of conviction of appellant was the aforesaid seized article.
The principle of law with regard to procedure to be followed by the raiding team for searching an accused person on an apprehension of carrying contraband article in violation of the provisions of the NDPS Act, 1985, seizure of illicit article thereof as also its effect on a subsequent trial have been settled by a Constitution Bench of the Hon'ble Apex Court in the decision of The State of Punjab -Vs.- Baldev Singh, reported in (1999) 6 SCC 172. Clauses (1),(3),(4) and (7) of paragraph 57 of the above judgement are relevant for our case and those portions are quoted bellow :-
"(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) . . . .
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the officer concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain about board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice.
That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) . . . .
(6) . . . .
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search."
(Emphasis supplied) The question of considering search of a bag, briefcase or any other article or container etc., which has been carried by an accused person, as search of an accused "person" has been answered by a judgement delivered by Bench of three Hon'ble Judges of the Apex Court in the matter of State of M.P. -Vs.- Pawan Kumar, reported in (2005) 4 SCC 350 and the relevant portion of the above judgment is quoted below:-
"11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a hold all, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
Taking into consideration the insertion of Sub-Sections (5) and (6) to Section 50 of the NDPS Act, 1985, it has further been held by a Constitution Bench of the Hon'ble Supreme Court in the matter of Karnail Singh -Vs.- State of Haryana, reported in (2009) 8 SCC 539 that through the above amendment the strict procedural requirement as mandated by Baldev Singh (supra) is avoided as relaxation and fixing the reasonable time to send the record to the superior official as well as exercise of Section 100 of the Cr.P.C. is included. The relevant portions of the above decision are quoted below:-
"30. The unamended Section 50 as existed during that period is as follows:
"50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detail the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female."
31. The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity or evidence derived from such search. But this strict procedural requirement has been diluted by the insertion of sub-sections (5) and (6) to the section by Act 9 of 2001, by which the following sub-sections were inserted accordingly:
"50. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
Through this amendment the strict procedural requirement as mandated by Baldeb Singh case was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance with Section 50 by Baldev Singh case was that the procedural requirements which may have handicapped an emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh case is diluted.
32. Under Section 42 (2) as it stood prior to the amendment, such empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance with this provisions the same would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non- compliance with which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to the immediate official superior and not to any other condition of the section."
Regarding examination of statement of a witness, it has been observed by the Hon'ble Apex Court in the matter of Shymal Ghosh -Vs.- State of West Bengal, reported in (2012) 7 SCC 646, that the Court should examine the statement in its entirety and read the said statement along with the statement of other witness in order to arrive at a rational conclusion and the relevant portion of the above decision is quoted below: -
"48. To illustrate the irrelevancy of these so-called variations or contradictions, one can deal with the statements of PW 2. PW 4 and PW 6, PW 4 and PW 6 have stated that the deceased had constructed shops along with his brother for the purpose of letting out and it was thereupon that the accused persons started demanding a sum of Rs.40,000 from the deceased and had threatened him of dire consequences, if their demand was not satisfied. PW 2 has made a similar statement. However, he has stated that Uttam Das and the accused persons had threatened the deceased that if the said money was paid, they would not allow the deceased to enjoy and use the said shops built by him. This can hardly be stated to be a contradiction much less a material contradiction. According to the witnesses, two kinds of dire consequences were stated to follow if the demand for payment of money made by the accused was not satisfied. According to PW 4 and PW 6, they had threatened to kill the deceased while according to PW 2, the accused had threatened that they would not permit the accused to enjoy the said property. Statements of all these witnesses clearly show one motive i.e. illegal demand of money coupled with the warning of dire consequences to the deceased in case of default. In our view, this is not a contradiction but are statements made bona fide with reference to the conduct of the accused in relation to the property built by the deceased and his brother."
Taking into consideration the evidence of PW 2, PW 3 and PW 5 in its entirety, we find no infirmity in the oral notice given to the appellant by the PW 3 under Section 50 (1) of the NDPS Act, 1985, in the light of the settled proposition of law as discussed hereinabove. However, it was an idle exercise in the case in hand, on the fact-situation, to consider whether there was non-compliance with the conditions stipulated in the above section. Further, in view of the settled proposition of law as discussed hereinabove, the evidence of PW 5 with regard to the facts and circumstances involved in this appeal does not help the appellant. Therefore, the decision of the Learned Trial Court does not require our interference in this regard provided the seizure of the above contraband article and its custody in accordance with law, according to the prosecution case, is otherwise proved considering the other contents of this appeal which will be taken up at the latter part of this judgement.
In the decisions of Ritesh Chakravarti (supra), Dilip (supra), Shah Alam (supra), Parmanand and Mainul Haque (supra), the fact of search an accused person of his person was not in dispute. That apart, none of them decline to be searched of his person in presence of a Gazetted Officer or a Magistrate unlike the peculiar facts and circumstances of the case in hand. Therefore, none of the above decision could help the appellant in this regard.
C. Seizure of the contraband article (heroin) whether proved beyond any reasonable doubt:
It appears from the evidence of PW 2 that the contraband article (heroin) was contained in and seized from the bag of the appellant. In course of search conducted by the raiding team on August 21, 2007, the above bag was handed over to him by the appellant. Three packets containing contraband article were recovered from that bag. It was seized in presence of two natural witness (Samsul Haque and PW 4) of the seizure list. PW 4 was a teacher by profession as also a member of a Panchayat Samity. According to his evidence, he signed on a blank sheet of paper which was in printed pro-forma. The other natural witness Samsul Haque was the Prodhan of the Panchayat Samity. He did not adduce evidence as a prosecution witness. According to the evidence of PW 1 (the complainant), it was not known to him whether the contraband article had been kept in the custody of the prosecution agency. He could not say in which godown the contraband articles were kept. He could not say the name of the godown keeper. According to the written complaint, the sheet anchor of the prosecution case was the statement made by the appellant in the camp, i.e. in Sarat Pally, Chuanpur at Berhampore where the appellant was arrested.
According the evidence of PW 2, the accused person was under the custody of the investigating agency from his apprehention till production before the Court. Upon further consideration of the evidence on record, we do not find any material from which the custody of the contraband article from the time of seizure could be ascertained. Further, according to the evidence of PW 1, percentage of "heroin" in the seized article was never ascertained.
Therefore, seizure of the contraband article (heroin) in course of search of bag of the appellant on January 21, 2007 was not proved byond any reasonable doubt. We do not find any observation in the impugned judgment in respect of the above evidence. So, the impugned judgment requires our intervention in this regard.
D. Validity of recording the statement of the appellant by the investigating agency:
The above statement (Ext.-4) was recorded by the PW 2 in five pages. The appellant was an illiterate person. The LTI of the appellant was obtained in each and every page. There was an endorsement in the last page that the contents of the above statement was read over and explained to the appellant. The LTI of the appellant was not attested by PW 2 in any of the pages containing above statement.
In the matter of Radhey Shyam vs. Union of India, reported in (2012) 12 SCC 217, it was observed by the Hon'ble Supreme Court that in absence of signature of two witnesses in the statement of the accused person recorded under Section 67 of the NDPS Act, 1985, generated a doubt in the mind of the Court to the effect that the same might not be the original statement of the appellant. The relevant portion of the above decision is quoted below:-
"8. In order to verify the correctness or otherwise of the said document, we have looked into the original records. The said document does not bear the signatures of the two witnesses. This generates a doubt in the mind of this Court that the document so produced and marked in the evidence may not be the original statement of the appellant, recorded under Section 67 of the NDPS Act."
That apart, according to the deposition of the PW 2, the appellant had been in the custody of the prosecution agency from the time of his initial interception till he was produced in Court.
Therefore, the Learned Trial Judge was in error to take into consideration the statement of the appellant, which had been recorded under Section 67 of the NDPS Act, 1985, in the manner as discussed hereinabove, as a valid piece of evidence.
E. Service of notice under Section 67 of the N.D.P.S. Act, 1985:
In order to examine the correctness of service of notice upon the accused person Alam Kabir @ Alam Sk. @ Abdus Alam, we have verified the original records. It appears from the evidence adduced by PW 2 in course of cross-examination that the same did not contain the fact of recording the statement of the appellant or in other words the reason for issuing notice upon the accused person. Further, the notice did not bear signature of witnesses. The service of notice upon the above accused person was not proved beyond doubt. Therefore, the decision making process of the Learned Trial Judge requires our interference in this regard.
So, the Learned Trial Judge was in error to consider the above notice as a valid piece of evidence.
F. Effect of the contradictions in respect of the oral evidence on the impugned judgment:
The contradiction with regard to the evidence of PW 2 and PW 3 in respect of preparation of seizure list in presence of two natural witnesses was contradictory to the evidence adduced by the PW 4 as recorded hereinabove. There was doubt with regard to the recording of statement of the appellant under Section 67 of the NDPS Act, 1985. In view of the deposition of the PW 2 that the appellant had been in the custody of the prosecution agency from the time of his initial interception till he was produced in Court, failure to produce any information with regard to custody of the seized article leads to a conclusion that the contradictions in the evidences in support of the prosecution case were of material dimension touching the root of the prosecution case. Therefore, the evidence as mentioned hereinabove was not considered by the learned Judge on the basis of the settled principle of law.
The decisions of Brijesh Kumar Gupta (supra), M. Prabhulal (supra) and Hema (supra) do not help the respondents in view of the distinguishable features of this appeal as discussed hereinabove.
In view of the discussions and observations made hereinabove, the impugned judgment, order of conviction and sentence are quashed and set aside.
This appeal is, thus, allowed. The appellant is directed to be set free expeditiously unless required in any other criminal case.
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.)