Calcutta High Court
Govinda Prosad Verma vs State on 3 December, 2003
Equivalent citations: 2004(4)CHN544
JUDGMENT Amit Talukdar, J.
1. This appeal is directed against the judgment and order dated May 18, 2001 passed by Shri A.R. Shah, learned Judge, Special Court (under the N.D.P.S, Act), Alipore, 24-Parganas (South) in Sessions Trial No. 1(5)99. The learned Trial Court after having found that the charge of Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act) having been proved against the appellant for carrying 380 grams of heroin in a plastic bag, sentenced him to suffer rigorous imprisonment for ten (10) years and directed him to pay a fine of Rs. 1,00,000/- (Rs. one lakh), in default, to suffer further rigorous imprisonment for a period of one year.
2. Shri Sekhar Kumar Bose, learned Counsel appearing on behalf of the appellant duly assisted by Shri Debasish Roy and Shri Somnath Banerjee submitted that from the evidence it would appear that although there was prior information received by P.W. 1 the said information was not recorded and there was violation of Section 42 of the said Act and the Deputy Commissioner of Excise, who informed P.W. 1 about the secret information, was also not examined. He submitted that the violation of Section 42 of the said Act and the failure of the prosecution to examine the said Deputy Commissioner, who had initially received the secret information, cast a suspicion on the entire foundation of the prosecution case. Shri Bose referred to the decisions of Koluttumottil Razak v. State of Kerala, 2000 SCC (Cri) 829 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 SCC (Cri) 496 to substantiate his point that non-recording of the information received by the raiding team leads to infraction of Section 42 of the said Act.
3. He further submitted that the provisions of Section 50 of the said Act were not at all complied with. Shri Bose argued -that as the raiding team apprehended the appellant on the basis of a prior information and there was search of the appellant the provisions of Section 50 of the said Act would be applicable; but, the procedural formalities relating to the provisions of the said Act were not complied with. He submitted that the Gazetted Officer ought to have been an independent officer and not a member of the raiding team. He referred to the decision of Ahmed v. State of Gujarat, 2000 SCC (Cri) 1407 on this point.
4. He further submitted that the appellant was not informed of his right to exercise the option with regard to search by either a Gazetted Officer or a Magistrate. In this way, according to Shri Bose, the conviction of the appellant was fully untenable and he relied on the decisions of K. Mohanan v. State of Kerala, 2000 SCC (Cri) 1228 and T. Hamza v. State of Kerala, 2000 C Cr LR (SC) 44.
5. He also referred to the decision of Namdi Francis Nwazor v. Union of India and Anr., 1998 SCC (Cri) 1516 and outlined the circumstances in which a seizure were effected. Even from a hand-bag or the like and the incriminating article is found therefrom it would tentamount to search of the person and Section 50 of the said Act would be applicable.
6. Thereafter, Shri Bose submitted that the provisions of Section 52A of the said Act were also violated as the prosecution is totally silent where the sample was kept after the seizure was effected till such time it was sent to the Chemical Analyst (P. W. 5). In this context he referred to the decision of the Supreme Court in Karnail Singh v. State of Rajasthan, 2000 SCC (Cri) 1437 and submitted that non-compliance of Section 52A of the said Act resulted in serious prejudice to the appellant and more so, there was no certification of the contraband articles in the light of the position that the original seized sample amount although weighed 10 grams the Chemical Analyst (P.W. 5) shows 9.5726 grams.
7. Lastly, Shri Bose referred to the decision of Munna Nai v. State, 1997 Cr.
LJ 4553 of our Court and submitted that the entire search and seizure stood vitiated since the samples of the contraband articles were not taken out in the presence of the Magistrate and the absence of independent seizure witness vitiated the entire conviction and the result of analysis of the samples cannot be taken into account by the Court in view of the violation of Section 52A of the said Act.
8. Summing up Shri Bose submitted in view of such statutory dereliction by the prosecution the entire case was liable to be scotched and prayed for setting aside the conviction and sentence recorded by the learned Trial Court.
9. Shri Swapan Kumar Mallick learned Advocate appearing for the State opposed the submission of Shri Bose. Shri Mallick took us to the text of the examination of the appellant under Section 313 of the Code of Criminal Procedure. He referred to question No. 3 of the said examination and submitted that the appellant could not give proper explanation about the incriminating articles having been found from his possession. He submitted that in view of Section 54 of the said Act the appellant should have rebutted the presumption with regard to the possession of the articles.
10. Shri Mallick further submitted that as there was always presumption of culpable mental state in Section 35 of the said Act and as the prosecution has been able to bring home the charge against the appellant in the absence of proper discharge of the onus the prosecution case stood proved.
11. Refuting the submission of Shri Bose that Section 50 of the said Act would have application even if the article was recovered from a bag Shri Mallick referred to the decision of a learned Single Judge of the Madras High Court in U. Kriahnan alias Kittu v. State, 2000 Cr. LJ 2887 and also referred to the Supreme Court decision in Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence, 2003 Cr. LJ 27. He also relied on the State decision in U. Krishnan alias Kittu v. State (supra) and submitted that as the search and seizure took place in a public place the provisions of Section 42 of the said Act would not be applicable.
12. He also submitted that as the prosecution has complied with all the provisions of the said Act and the raiding team pursuant to an information have yielded a seizure of contraband articles which have been found to be heroin according to the report (Ext. 8) of P.W. 5, the prosecution case has been proved and no interference is called for.
13. Having heard the submission made at the Bar and on considering the citations referred to therein in the light of the evidence and other materials on record we now seek to explore the feasibility of the argument advanced on behalf of the appellant.
14. Firstly, with regard to the argument of Shri Bose, learned Counsel appearing on behalf of the appellant about non-compliance of Section 50 of the said Act and the failure to apprise the appellant about his right to be searched in presence of a Magistrate or a Gazetted Officer, in whose presence the search was conducted was a member of the raiding team and the absence of formation of opinion of the raiding team before conducting the search are all taken up together.
15. For profitable discussion let us refer to Section 50 of the said Act which is reproduced hereinbelow :
"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 detain 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.
(5) When an officer duly authorized under Section 42 had 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".
16. In other words, unless there is search of any person the provisions of Section 50 of the said Act has no manner of application. The argument of Shri Bose touching on the question of Section 50 of the said Act and its allied infirmities falls like a house of cards in view of the galaxy of decisions of the Apex Court on this point. The Apex Court in Sarjudas and Anr. v. State of Gujarat, 1999 SCC (Cri) 1501, Kanhaiya Lal v. State of M. P., 2000 SCC (Cri) 1.494, Khet Singh v. Union of India, 2002 Supreme Appeals Reporter (Criminal) 328 SC and Birakishore Kar v. State of Orissa, amply illustrated the said question.
17. We are very much emboldened by very recent decision of the Supreme Court in Madan Lal v. State of Himachal Pradesh, 2003 AIR SCW 3969 where Their Lordships had specifically held :
"17. A bare reading of Section 50 shows that it only applies in case of personal search or a person. It does not extend to search of a vehicle or a container or a bag, or premises. [See Kalema Tumba v. State of Maharashtra and Anr., , State of Punjab v. Baldev Singh, , Gurbax Singh v. State of Haryana, 2001(3) SCC 28.] The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance".
18. Even more latter decision of the Supreme Court in Mega Singh v. State of Punjab, 2003 AIR SCW 4536 approves the said position.
19. In view of the line of decisions which we have discussed just hereinabove it would be quite clear that in the present case Section 50 of the said Act would have no manner of application as the contraband article (Mat. Ext. III) was recovered from a plastic bag carried by the appellant. P.W. 1, P.W. 2 and P.W. 3 who were the members of the raiding team univocally stated that the contraband article (Mat. Ext. III) was found from a plastic bag carried by the appellant. P. W. 4, an independent witness, who at the relevant time was plying his taxi and was taking tea in a nearby stall when the appellant was intercepted also deposed that a green coloured bag was recovered from the left hand of the appellant and after opening the bag a packet was brought out which contained heroin. He signed on the seizure list (Ext. I) in respect of the said articles.
20. The prosecution case is quite clear on this point that the seized article (Mat. Ext. III) was recovered from a plastic bag carried by the appellant. As such, the question of application of Section 50 of the said Act did not arise at all and the contraband articles were not seized pursuant to the search of the person of the appellant.
21. Once it is resolved that the provisions of Section 50 of the said Act will have no manner of application as the contraband articles were not recovered pursuant to the search of the person of the appellant the other ancillary points raised by Shri Bose touching on infraction of Section 50 of the said Act i.e. the question of right of the appellant to be searched by a nearest Gazetted Officer, and that P.W. 3 although a Gazetted Officer was a member of the raiding team and the appellant ought to have been taken to the nearest independent Gazetted Officer or a Magistrate pale into insignificance and require no further discussion.
22. Secondly, Shri Bose complained about non-compliance of Section 42 of the said Act by the prosecution which according to him vitiated the trial and the resultant conviction of the appellant and he referred to two decisions of the Supreme Court in Koluttumottil Razak vs. State of Kerala (supra) and Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra)-the same has to be appreciated in the fact situation of the present case.
23. We find P.W. 1 a Sub-Inspector of the Excise Department being the Officer-in-Charge of the special squad was directed by the Dy. Commissioner of the Excise on 28.7.98 at about 7.00 p.m. that the latter had received some secret information that the appellant, who had been involved in clandestine deal of heroin and asked him to make arrangements for working out on the said information. Accordingly P.W. 1 under the leadership of P.W. 2, Dy. Excise Collector of the special squad and other officers with force assembled near the Kalighat Fire Service Station and thereafter, they proceeded on foot towards Gopalnagar Crossing at about 5-10 a.m. in the morning and on being pointed out by source at about 5-30 a.m. found the appellant coming from Kalighat Bridge with a plastic bag in his hand and in the presence of P.W. 4 the appellant was accordingly detained and subsequent search and seizure followed which resulted in the recovery of the 380 grams of heroin.
24. Some basic outline of the prosecution case in this context is required to be reiterated. The recovery of the articles took place on Gopalnagar More bus-stand from a plastic bag carried by the appellant. The prosecution report (Ext. 2) filed by P.W. 1 also shows the place of occurrence was on a road which is a public place.
25. The argument of Shri Mallick for the State that as the articles were seized in a public place the provisions of Section 42 of the said Act would not be applicable and on the contrary, Section 43 would be applicable - has to be considered in the light of the submission of Shri Bose that the information received by the prosecution was not reduced into writing and no information was given to the Superior Officer in this regard.
26. To better appreciate this position let us advert to the provisions of Sections 42 and 43 of the said Act. Section 42 speaks of the power of entry, search, seizure and arrest without warrant or authorization by an officer of the Departments mentioned in the section who is duly authorised if he has reason to believe either from personal knowledge or information given by any person and taken down in writing that any narcotic drug etc. in respect of which an offence punishable under Chapter IV has been committed etc. etc. is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset enter into and search any such building, conveyance, place etc. and Sub-section (2) of Section 42 speaks that when an officer has taken down an information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.
27. While Section 43 speaks of the power of seizure and arrest in public place by any officer as specified in Section 42. In the Explanation to Section 43 'public place' includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public.
28. It is seen that the entire episode of the apprehension of the appellant and resultant recovery of the articles (Mat. Ext. III) were made by P.Ws. 1, 2 and 3 on a road-crossing near a bus-stand known as Gopalnagar More bus-stand and as the said place is very much a public place the provisions of Section 43 of the said Act has application.
29. That apart, although it is true that P.W. 1 had received direction from his Superior Officer - Dy. Commissioner of Excise that there was secret information that the appellant was involved in dealing with heroin. It is the information received by the said Dy. Commissioner and not by P.W. 1. Information which ought to have been recorded was not P.W. 1, but, by the said Dy. Commissioner (who was not examined) and was supposed to be sent to his Superior Officer.
30. Now, on the one hand the picture which emerges that P.W. 1 did not receive any secret information and he was simply acting under the instructions of his Superior Officer the Dy. Commissioner of the Excise Department and the information was not received by him which he ought to have reduced it into writing has to be matched in the fact situation of the present case in the light of the decisions of Koluttumottil Razak v. State of Kerala (supra) and Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra).
31. Even if for the argument's sake Section 42 of the said Act is taken into account and purported infraction thereof it would be seen that in both the decisions of Koluttumottil Razak v. State of Kerala and Abdul Rashid Ibrahim Mansuri v. State of Gujarat (suprg.) the Supreme Court laid emphasis on the fact that action taken on unrecorded information would become suspect and cannot by itself ipso facto vitiate the trial it would be a question of prejudice.
Let us see as to whether the entire perspective of the apprehension of the appellant pursuant to the secret information received by the Dy. Commissioner (not examined) and P.W. 1 being so directed on the basis of the said information received by the former and subsequent recovery of the articles is quite transparent and is acceptable.
32. P.W. 1, as we have found, on the basis of the directions passed by the Dy. Commissioner being accompanied by two of his Superior Officers - P.W. 2 and P.W. 3, who were both Dy. Collectors of the Excise Department gathered near the Kalighat Fire Station and keeping their vehicles proceeded towards Gopalnagar crossing on foot whereupon being pointed out by the source the appellant was nabbed and from the search of a plastic bag carried by him, there was recovery of the articles (Mat. Ext. III) which were found to be heroin according to the report (Ext. 8) as proved by P,W. 5.
33. The seizure list (Ext. 1) prepared by P.W. 1 showing the place of seizure as Gopalnagar More bus-stand in respect of the seized 380 grams of heroin in a plastic bag from the possession of the appellant was signed by P.W. 4- an independent witness, who went to take tea while plying his taxi. His evidence was quite consistent and he could not be discredited in his cross-examination. We have no occasion to disbelieve his evidence. The seizure list prepared on the spot bears the signatures of the appellant and P.W. 1 and P.W. 2.
34. The entire aspect of the matter is quite credible and inspires confidence in the mind of the Court.
35. After apprehension of the appellant on the spot on 29.7.98 he was produced on the very same date (29.7.98), as we find from the records of N.D.P.S. Case No. 84 of 1998 of the Court of the learned Judge, Special Court, 24-Parganas (South), Alipore.
36. A perusal of the evidence of P.Ws. 1, 2 and 3, the officers of the Excise Department, does not in any way make us feel that there is any discrepancy or any infirmity on the face of it which can given even a slightest impression in the mind of the Court that something is lacking and there is somewhere a missing link which can raise a ring of suspicion about the entire process which we do not find from the evidence and materials on record, which we have gone through with utmost circumspection. In view of the same the argument of Shri Bose with regard to Section 42 of the said Act has no appeal.
37. Thirdly, this brings us to the argument of Shri Bose on the question of Section 52A of the said Act which we are equally afraid cannot in any manner come to his rescue.
38. Without repeating the factual matrix of the entire case, we have seen that after the appellant was apprehended in the small hours of 29.7.98 the recovered articles were properly labelled and kept into an envelope and samples were taken out (Mat. Ext. II) by P.W. 1 which have been deposed to by P.W. 2 and P.W. 3 - both responsible officers of the Excise Department. From the evidence of P.W. 5 - the Senior Scientific Officer of the State Drug Control and Research Laboratory we find that the samples were received in an envelope by the laboratory on 30.7.98 i.e. on the very next day when it was seized. P.W. 5 found the seals were intact and is quite clear that the seizure of the articles was followed by forthwith despatch to the laboratory - almost contemporaneously and there was no delay at all in the entire process. The Division Bench decision of our Court in Munna Nai v. State (supra) was on the premises that Section 50 of the said Act was not complied with and the search and seizure were vitiated while taking of sample was found to be illegal and the order of acquittal was recorded. From the ratio of the said decision it cannot be said that mere infraction of Section 52A of the said Act persuaded the said Division Bench to set aside the order of conviction and the said decision, in our humble view, cannot help Shri Bose in this regard.
39. We failed to understand how the decision of Karnail Singh v. State of Rajasthan (supra) relied upon by Shri Bose to illustrate his point in respect of Section 52A of the said Act can be either of any help to him or be applicable whatsoever in the fact situation of the instant case. We most humbly feel that the said decision has no manner of application. Their Lordships of the Supreme Court were dealing with a case of Section 52 and the applicability of Section 55 of the said Act and held the same would have no application when the person was arrested and forwarded under Clause (b) of Sub-section (3) of Section 52 of the said Act. The said decision of Karnail Singh v. State of Rajasthan (supra), we are very much afraid, does not fit in the fact situation of the present case.
40. We have given our anxious consideration to this part of the argument of Shri Bose. As we have discussed hereinabove that immediately after the seizure of the articles the same was sent for chemical analysis to the office of P.W. 5 on the very next day of the seizure and the members of the raiding team (P.Ws. 1 and 2) and the independent witness (P.W. 4) deposed in Court that they found the Alamat in order along with the signatures. The entire process, apart from being absolutely transparent, shows that there was a seizure of the contraband articles from a plastic bag carried by the appellant, which he could not account for and the search and seizure has been quite established through the evidence of the prosecution witnesses.
41. The question of application of Section 52A of the said Act, in our respectful view, in the present case, cannot affect the merit of the prosecution case in any manner whatsoever as the prosecution has been able to bring home the charge against the appellant beyond any reasonable doubt on the basis of convincing and clear evidence which we are inclined to accept.
42. Once we have found that the conformance of Section 52A of the said Act cannot have any effect on the merit of the case, the point canvassed by Shri Bose has to be discarded.
43. After all what is the legislative impact of Section 52A of the said Act in the Statute Book? This has to be understood from the recitals in the said section which the Parliament included in the said Act w.e.f. 29.5.89. It deals with the question of disposal of seized narcotic drugs and psychotropic substances regard being had to the hazardous nature of the same and their vulnerability to theft, substitution, constraint of storage etc. It is simply accentuation of a process in an enquiry or an investigation. Breach of the same, in our view, cannot affect the credibility of the prosecution case and affect its merit once we have found that the appellant have been found in possession of contraband articles which have been tested positive as heroin and he could not account for the same and along with the fact that the procedure of the entire search and seizure being quite believable and acceptable to the Court the question .as raised by Shri Bose touching of Section 52A of the said Act loses its importance and cannot detain the Court any further. The difference in the sample seized and the amount examined by P.W. 5 was so marginal that it can have no bearing on the whole, so also is the question of non-examination of the said Deputy Commissioner which made no difference at all.
44. We have seen from the evidence that the appellant, who was found to possess the contraband articles carried by him in a plastic bag (Mat. Ext III), licit possession of which could not be accounted for, which upon examination (Ext. 8) by the office of P.W. 5 was found to be heroin which squarely fulfils the requirement of Section 21 of the said Act.
45. Moreover, as the Statute in Section 35 raises a presumption of culpable mental state and as the possession of the contraband articles could not be satisfactorily explained adverse presumption under Section 54 of the said Act can easily be raised against the appellant. Although this is a rebuttable presumption, however, from the evidence on record we find that the appellant has not been able to discharge the said onus.
46. That being the position from the overwhelming evidence (P.Ws. 1, 2, 3 and 4) who have consistently spoken about the search and seizure and recovery of the contraband articles which have been treated to be heroin by the office of P.W. 5 there is no escape from the conclusion with regard to the guilt of the appellant and we arc of the view - it can be satisfactorily concluded that the charge under Section 21 of the said Act has been fully brought home against the appellant.
47. In the light of the discussion held hereinabove the appeal stands dismissed.
Narayan Chandra Sil, J.
48. I agree.