Calcutta High Court (Appellete Side)
Makhan Barman vs State Of West Bengal on 18 March, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre, Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
P R E S E N T:-
The Hon'ble Mr. Justice Nishita Mhatre
The Hon'ble Mr. Justice Tapash Mookherjee
C.R.A. No. 534 of 2008
Makhan Barman
Versus
State of West Bengal
For the Appellant:- Mr. Sekhar Basu, Advocate
For the State. Mr. T.D. Nandy, Advocate
Mrs. Sujata Das, Advocate.
Heard on : 20.02.14
Delivered on:. 18.03.2014
Tapash Mookherjee, J: The present appeal is directed against the judgment and
order of conviction and sentence passed by the learned Additional Sessions Judge-
cum-Judge Special Court under Narcotic Drugs and Psychotropic Substances Act,
1985 hereinafter described for convenience as N.D.P.S. Act. finding thereby the
Appellant Makhan Barman guilty of the offence Under Section 20 (b) (ii) (C) of the
N.D.P.S. Act and sentencing the Appellant to suffer R.I. for 10 (ten) years and pay
fine of Rs. 1,00,000.00 (rupees one lakh only) I.D. to suffer R.I. for one year more, in
G.R. Case No. 274 of 2007. The judgment of conviction was passed on 19.07.2008
and the sentence was passed on 21.07.2008.
The facts behind, stated briefly, are as follows:-
On 06.06.2007 C.I.D. Inspector, Cooch Behar, Inspector P.S. Majumder
received a secret information that a huge quantity of Ganja had been stored in the
house of the Appellant at village RuerKuthi under P.S. Dinhata, Cooch Behar and
hence on the same day Inspector P.S. Majumder alongwith some other police
personnel being accompanied by 2 (two) neutral witnesses raided the house of the
Appellant after observing all the legal formalities and recovered from the house of the
Appellant Ganja in 14 (fourteen) packets kept in the plastic packets inside a room in
the house of the Appellant. The total weight of the goods was about 53 Kg and 500
Gm for which the Appellant could not offer any explanation whatsoever. All those
goods had been weighed on the spot, seized, a seizure list prepared and labels pasted
on all those seized packets. Samples had been separately preserved and after all those
acts Inspector P.S. Majumder arrested the Appellant, took him to the local Police
Station and thereafter Inspector P.S. Majumder submitted a written complaint
narrating all the aforesaid facts, on the basis of which Dinhata P.S. Case No. 242 of
2007 had been registered against the Appellant under the provisions in N.D.P.S. Act
and the case was endorsed to S.I., S. GuhoChowdhury of Dinhata P.S. for
investigation, and the Appellant had been forwarded to the Court in usual course.
After completion of investigation, charge-sheet had been submitted against the
Appellant.
Considering the materials collected during the investigation, charge Under
Section 20 (b) (c) of the N.D.P.S. Act had been framed against the Appellant and the
Appellant pleaded his innocence and claimed trial. False implication was the only
plea of the Appellant all along.
Prosecution examined 11 (eleven) witnesses, proved some documents and
produced some articles also to prove the charge brought against the Appellant. The
Appellant did not tender any evidence whatsoever, in his defence.
Considering the aforesaid evidence on record learned Trial Court found the
Appellant guilty of the offence punishable Under Section 20 (b) (ii) (c) of the
N.D.P.S. Act and sentenced the Appellant to suffer R.I. for 10 (ten) years and to fine
of Rs. 1,00,000.00 (rupees one lakh only) against the Appellant, i. d., to suffer R.I. for
1 (one) year more. Being aggrieved by such order of conviction and sentence the
Appellant filed the present appeal.
We have heard the learned Advocates on both sides at length and perused all
the materials on record.
Learned Advocate for the Appellant emphatically argued that the alleged fact
of seizure of Ganja from the house of the Appellant has not been proved at all in the
case. He further argued that the mandatory provisions of search, seizure, and follow
up actions prescribed in the N.D.P.S. Act had not been complied with in the case and
for such reasons learned Trial Court was not justified to find the Appellant guilty of
the charge framed against the Appellant.
On the other hand, learned Advocate for the State of West Bengal/Respondent
argued that the oral evidence as well as the documentary evidence adduced by the prosecution, during the trial, was sufficient to prove the guilt of the Appellant beyond all reasonable doubts and the legal formalities for the search, seizure and other actions for such a case prescribed in the law had been followed substantially as far as could be done and as such there is no illegality in the findings and decisions of the learned Trial Court.
The witness P.S. Majumder, Inspector of C.I.D., Cooch Behar, (P.W.- 1) was the defacto complainant and as such the principal witness for the prosecution. He is described as the leader of the alleged raiding team. He stated in his examination-in- chief that on 06.06.2007, having received a secret information to the effect that a huge quantity of Ganja had been stored in the house of the Appellant, he recorded the fact in the General Diary Book and thereafter he, alongwith S.I., N.N. Paul, A.S.I., B.N. Saha, A.S.I. S. Sarkar and others, raided the house of the Appellant and recovered 14 (fourteen) packets of Ganja from a room in the house of the Appellant. He further stated that after such recovery, the goods had been weighed and the total weight of the goods was 53 Kg and 500 Gm and that he had taken and preserved separately the sample of the goods from each packet and pasted labels and seals on those packets and a seizure list had been prepared on the spot in presence of the witnesses. He also stated that after the completion of all such acts, he had taken the Appellant and the seized goods to the Dinhata P.S. and lodged a written complaint narrating the aforesaid incidents. He proved the seizure list and the labels. He also identified the articles allegedly seized by him. He had also proved the written complaint submitted by him in the Police Station. A.S.I. Bishwanath Saha (P.W.- 2), A.S.I. Swapan Sarkar (P.W.- 4), Constable Sushil Karjee (P.W.- 5) and Constable Asit Ghosh (P.W.-9 ), during their examination-in-chief, tried to support P.W.- 1 saying that some quantity of Ganja had been recovered and seized from the house of the Appellant in their presence. Badal Chandra Das (P.W.-6) and Jogeswar Barman (P.W.-7) and Dhiren Barman (P.W.-8) had been examined by the prosecution as the neutral witnesses to the alleged search and seizure. Both of them were declared 'Hostile' by the prosecution.
Learned Advocate for the Appellant pointed out some contradictions in the statements of those witnesses which were not of much significance. But the most serious point raised by the learned Advocate for the Appellant was the statement of P.W. 11 during his examination-in-chief itself, to the effect that "B.S.F. Personnel seized the Alamat and brought the accused to the Dinhata P.S." and according to the learned Advocate for the Appellant, the statement itself is fatal for the entire prosecution case. Learned Advocate for the Respondent could not offer any explanation whatsoever in the matter. P.W.-11 is a responsible police officer in the rank of Sub-inspector and he had partly investigated the case also. It cannot be, therefore, said that he made the statement inadvertently and without knowing its consequence. It should be noted that he had not been declared 'Hostile' by the prosecution, nor the prosecution tried by re-examination or otherwise to obtain any clarification from him in the matter. So, the prosecution cannot disown such statement of P.W.- 11. The fact being so, the statement of P.W.-11 referred to above, cuts the very root of the prosecution case regarding the alleged recovery of Ganja from the possession of the Appellant.
The next contention of the learned Advocate for the Appellant was that the alleged ownership and/or possession of the house in question from where the Ganja had been seized, as alleged, has not been proved at all by the prosecution. He further submitted that some of the witnesses themselves stated that there were other members of the family present in the house in question, at the time of alleged recovery. So why the liability of possession is exclusively thrown on the shoulder of the Appellant has not been explained by the prosecution. Learned Advocate for the Appellant cited a decision reported in JT 1996 (2) S.C. 636 on the point. In reply, learned Advocate for the Respondent submitted that the Appellant was found present in the house and the contraband article had been recovered from the bed room of the Appellant. So onus lied upon the Appellant to prove that he was not the owner of the house.
P.W.-11 who had submitted the charge-sheet in his cross-examination stated clearly that he made no attempt to ascertain the ownership of the house from where the contraband article was seized. The first I.O. also admitted that he had not also tried to ascertain the ownership of the house in question. The defacto complainant, that is, P.W.-1 also admitted that he had not ascertained the ownership of the house in question or how many persons had been residing in that house. P.W.-2, during cross- examination, stated that they found 10/12 persons including some family members of the Appellant present in the house during the recovery. In such circumstances, it is not clear as to why the accused has been considered to be the exclusive owner or possessor of the house in question. This is definitely, a big hole in the prosecution case. The decision reported in JT 1996 (2) S.C. 636 cited by the learned Advocate for the Appellant is relied on the point.
It had been argued by the learned Advocate for the Appellant that the alleged seizure took place on 06.06.2007 and from the F.S.L. Report, that is, Exhibit-6, it is found that the sample of the seized article had been received by the F.S.L. on 12.06.2007. It is not proved as to whether the sample of the seized article had been kept under proper and safe custody during that period, or not. Learned Advocate for the respondent submitted on the point that the seized article and the samples thereof had been kept at Dinhata P.S., as stated by the P.W.-1. P.W.-10, who started the investigation of the case, stated that he had handedover the seized articles to Malkhana Officer of Dinhata P.S. but the Malkhana Registrar has not been produced and the Malkhana Officer has not also been examined. Moreover, P.W. -10, the first I.O. of the case during his cross-examination, admitted that the seized articles including the samples had not been kept in safe custody separately.
P.W.-1 stated that he had taken out and preserved 100 Gm of the seized articles as samples from each packet seized. But from the F.S.L. Report, that is, Exhibit-6, it is found that the gross weight of the samples were different varying from 34 Gm to 60 Gm.
We are in agreement with the learned Advocate for the Appellant to the point that in view of the facts stated above, it is not proved as to which samples had been sent to the F.S.L. for examination and that possibility of physical interference into the samples sent to the F.S.L. in the case, cannot be ruled out especially when the samples had not been kept in safe custody as mentioned earlier.
It was also the contentions of the learned Advocate for the Appellant that since the N.D.P.S. Act is a harsh Act prescribing heavy punishment for the offender, some procedural safeguards have also been provided for in the Act itself and such safeguards provided in Section 42 (1), Section 42 (2), Section 50 (1), 55, 57 are all mandatory provisions required to be strictly complied with in each and every case and any violation of any of these mandatory provisions does vitiate the investigation as a whole. He cited some decisions on the point reported in JT 2008 (7) S.C. 409, J.T. 1996 (2) S.C. 637, (2011) 8 SCC 130, (2001) 3 SCC 33, (2013) 2 SCC 502 & 2000 (1) CHN, in support of his contention. In reply, learned Advocate for the Respondent submitted that all the prescribed procedures in the N.D.P.S. Act had been substantially complied with as far as practicable and non-compliance of any of them, if any, should be ignored.
Section 42 (2) of the N.D.P.S. Act says "where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior". P.W.- 1, in his examination-in-chief, stated that on the basis of a secret information to the effect that huge quantity of Ganja had been stored by the Appellant in his house, he alongwith others raided and searched the house of the Appellant to recover those contraband goods and that the information had been recorded in the G.D. Book of the Police Station. But the said G.D. Book or its authenticated copy has not been produced in trial and during cross-examination P.W.- 1 admitted that he had not reported the said secret information to any of his superior. It is, therefore, clear that the provision in Section 42 (2) of the N.D.P.S. Act had been violated in the case. In the decisions reported in (2011) 8 SCC 130 (Rajender Singh Vs State of Haryana), (2013) 2 SCC 212 (Sukhdev Singh Vs. State of Haryana) and (2013) 2 SCC 502 (Kishan Chand Vs. State of Haryana), cited by the learned Advocate for the Appellant, it has been clearly laid down by the Hon'ble Apex Court that the provision in Section 42 (2) of the N.D.P.S. Act is a mandatory provision and non-compliance of it is never permissible. Similarly, Section 52 A of the N.D.P.S. Act says that whenever any contraband goods under the N.D.P.S. Act is seized, an inventory should be made as per the procedure prescribed in the said Section and a certificate issued by the Magistrate in the matter shall be a primary evidence in the case. The said provision has not also been followed in the present case.
Learned Advocate for the Appellant argued that the aforesaid primary evidence has been withheld in the case and as such the conviction is illegal. The decisions reported in JT 2008 (7) SC 409, (Noor Aga Vs State of Punjab and Anr.), 2000 (1) CHN 803 (Tej Bahadur Singh and Anr. Vs Narcotic Control Bureau and Anr.) and 1997 CRI.L.J. 4553 (Munna Nai Vs The State), cited by the learned Advocate for the Appellant, do strongly support the aforesaid contention of the learned Advocate for the Appellant.
It is not a case of search of a person and it was a case of a search of a premises. So, Section 50 (1) of the N.D.P.S. Act and the decision reported in (2001) 3 SCC 28, has no application in the present case. The prosecution has failed to prove the alleged possession of the contraband by the Appellant and as such, the presumptions stated in Section 35 and 54 of the N.D.P.S. Act has no role to play in the present case.
To sum up, the prosecution failed miserably to prove that any contraband article under N.D.P.S. Act had been recovered and seized from the house of the Appellant by a police team led by the P.W.- 1, and a fact quite contrary to it has come on record. Some mandatory provisions of N.D.P.S. Act have been totally violated in the case. Learned Trial Court was, therefore, wrong to find the accused guilty of the charge Under Section 20 (b) (ii) (c) of the N.D.P.S. Act.
Passing sentence in the case was, therefore, also wrong.
Hence the judgment of conviction and order of sentence passed in the G.R. case No 274 of 2007 by the learned Additional Sessions Judge-cum-Judge Special Court under Narcotic Drugs and Psychotropic Substances Act, Cooch Behar are hereby set aside. The Appellant is found not guilty of the charge Under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act.
The Appellant be immediately set at liberty if his detention is not required in any other case.
Seized articles be destroyed as per rules.
L. C. R. Be sent back to the Trial Court.
Urgent Xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee. J) ( Nishita Mhatre. J)