Calcutta High Court (Appellete Side)
Kamal Barman vs The State Of West Bengal on 25 April, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
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 239 of 2010
Kamal Barman
Vs.
The State of West Bengal
For the appellant :Mr. P.S. Bhattacharya, Ld. Advocate
For the State :Mr. Saswata Gopal Mukherjee, Ld. Advocate
Mr. Arnab Chatterjee, Ld. Advocate
Heard on : 4.2.2016, 11.02.2016, 18.02.2016, 22.02.2016 & 24.02.2016
Judgment on: 25.04.2016
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgement, order of conviction and sentence dated January 28, 2008 and January 29, 2008 respectively passed by the learned Additional Sessions Judge, 2nd Court, Jalpaiguri in N.D.P.S. Case No. 6 of 2006 convicting him and one Sintu Biswas for commission of the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as NDPS Act) and sentencing them to suffer rigorous imprisonment for 10 years each and also to pay a fine of rupees one lakh each in default to suffer rigorous imprisonment for two years each. The period of pre-trial detention undergone by the convicts were directed to be set off from the substantive period of sentence.
The backdrop of the case of prosecution is discussed in a nutshell hereunder:
On April 18, 2006 at 17.45 hours a source information was received at NJP Out Post that two persons hailing from Cooch Behar had boarded a Setai-Siliguri route passenger bus bearing No.WP73A/1703 ('SIMRAN') from Mathabhanga with a huge quantity of ganja concealed inside 4 sacks of green chilly. The said information was diarised vide NJP OP GDE No. 775 dated April 18, 2006 and was passed on to C.I. Sadar, Jalpaiguri (PW12). Thereafter,O.C. NJP out post, (PW8) along with A.S.I. D. Mondal (PW7), constable Dhiren Roy (PW1), constable 1226 Suk Bahadur Subba and p0lice driver Bablu Barman (PW3) left for Tinbatti More to work out the said information. On reaching Tinbatti More the said bus arrived there at 18.10 hours. On enquiry with the conductor of the said bus about two passengers who boarded at Mathabhanga with sacks of green chillies, he showed the appellant and Sintu Biswas who were inside the bus. On interrogation appellant and Sintu Biswas told them that they were going to Siliguri with 04 sacks of green chillies and denied that they were carrying any ganja concealed in those sacks of green chillies.
On being identified by the accused persons namely the appellant and Sintu Biswas those 04 sacks of green chillies kept on the roof of the bus were brought down. After observing all formalities and after taking consent of the accused persons namely the appellant and Sintu Biswas, PW8 opened those 04 jute bags containing green chillies in presence of P.W.12 and witnesses namely driver of the bus (PW9), conductor of the bus( P.W.10)and one Dulal Saha and recovered two packets of ganja weighing approximately 4 kgs each, wrapped in an old Bengali newspaper with nylon strings from one of the first sack, two packets of ganja weighing approximately 4 kgs 250 gms each, wrapped in an old English newspaper with nylon strings, from the second sack, one packet of ganja weighing approximately 4 kgs, wrapped in an old Bengali newspaper with nylon string and one packet of ganja weighing approximately 4 kgs 250 grams from the third sack and one packet of ganja weighing approximately 4 kgs 750 grms., wrapped in an old Bengali newspaper, from the 4th sack. Samples of approximately 100 grams ganja from each packet were taken and thereafter articles were seized under a proper seizure list and the signatures of the witnesses and also the accused persons were taken over the same and those were sealed and labeled. Appellant and Sintu Biswas were then arrested and produced at the Bhaktinagar P.S. and a complaint was lodged there.
On the basis of the above written complaint of P.W. 8, a Bhaktinagar P.S. Case No. 155/06 dated April 18, 2006 was started against the appellant and Sintu Biswas under Section 20(b) of the NDPS Act and the case was endorsed to PW11 for investigation who then investigate the same and on completion of investigation a charge sheet No. 166/06 dated June 30 of 2006 under Section 20(b) of the NDPS Act was submitted accordingly against the appellant and Sintu Biswas.
Considering the materials collected during investigation, charge under Section 20(b) of the NDPS Act was framed on March 23, 2007 against the accused persons namely the appellant and Sintu Biswas and after they denied their involvement in the commission of the offence trial commenced.
Prosecution examined 12 (twelve) witnesses and also produced and proved certain documents and thereafter on completion of trial and after examining the appellant and Sintu Biswas under Section 313 Cr.P.C., learned trial Court found them guilty of the offence punishable under Section 20(b) of the NDPS Act and sentenced them to suffer rigorous imprisonment for 10 years each and to pay a fine of rupees one lakh each in default to suffer rigorous imprisonment for two years each.
Learned advocate for the appellant submitted that mandatory provisions relating to search and seizure of the contraband articles had not been complied with adhering to the provisions prescribed under the NDPS Act nor its disposal under the provisions of section 52A of the Act which casts a serious doubt about recovery of any contraband articles like ganja from the possession of the appellant. He also submitted that there was doubt about the identification of the appellant and non identification of the appellant by the driver and conductor of the bus in question casts a serious a doubt towards his involvement in the commission of the alleged offence. According to learned advocate for the appellant case was not proved against the appellant beyond all reasonable doubt. It was alternately submitted that on the facts and in the circumstances of the case, appellant had undergone almost 10 years of rigorous imprisonment and he is not in a position to pay the fine amount due to his poor condition and it was his first offence and if he is ordered to remain in jail for two more years even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent and accordingly prayed for modification of default sentence awarded by the learned trial Court.
Reliance is placed by the learned advocate for the appellant on the decisions of Ouseph v. State of Kerela reported in (2004) 10 Supreme Court Cases 647; Munna Nai V. The State reported in (1997) Cri. L. J. 4553; Noor Aga V. State of Punjab and another reported in (2008) 16 SCC 417; Makhan Barman V. State of West Bengal reported in (2014) 2 C Cr LR (Cal) 288; Shanti Lal V. State of M.P. reported in (2008) Criminal Law Journal 306 and Shahejadkhan Mahebubkhan Pathan V. State of Gujrat reported in 2012(4) Crimes 309 (SC) in support of his submissions.
On the other hand, learned Advocate for the state submitted that search, seizure and recovery of the contraband articles (ganja) from the jute bags found in possession of the appellant and Sintu Biswas was made adhering to the provisions prescribed under the NDPS Act and there was no procedural illegality or irregularity in the same. He also submitted that after recovery and seizure of the contraband articles (ganja) from the possession of the appellant and Sintu Biswas and after drawing of samples therefrom in presence of witnesses those were properly sealed and labeled and were kept in malkhana and thereafter sent to FSL for chemical analysis and report was collected which showed presence of ganja. According to learned advocate for the state, case against the appellant and Sintu Biswas was proved beyond all reasonable doubt and the learned court below was justified in convicting them and there was no illegality in the findings and decisions of the learned trial court.
Reliance is placed by the learned advocate representing the state on the decisions of Ram Swaroop V. State (Govt. NCT) of Delhi reported in AIR (2013) SC 2068, Sumit Tomar V. State of Punjab reported in (2013) 1 SCC 395, Gian Chand & Ors. V. State of Haryana reported in AIR (2013) SC 3395 in support of his above submissions.
We have given our thoughtful considerations to the submissions made by the learned Counsels appearing for the respective parties and gone through the evidence of the prosecution witnesses, the materials on record including the written complaint, formal FIR, seizure list, zimmanama, chemical analysis report, charge sheet, charge framed amongst other materials for examining the propriety of the impugned judgment, order of conviction and sentence.
The learned court below took into consideration the evidence of prosecution witnesses PW5 to PW12 who proved the search, recovery and seizure of ganja kept concealed in 04 green chilly sacks found in the possession of two passengers of the bus in question namely the appellant and Sintu Biswas and also took into consideration the chemical analysis report (Ext.15) where the expert had opined that the sample sent for analysis contained ganja to arrive at the conclusion that the prosecution has been able to prove the charge against the appellant and Sintu Biswas beyond all reasonable doubt.
To appreciate the first limb of submission with regard to the non- compliance of the mandatory provisions of law relating to search and seizure of the contraband articles, we have carefully scrutinized the evidence brought on record and perused the judgment of the learned Trial Court. It is evident from the evidence of P.W.8, Samir Deosha, Officer-in- charge, NJP Out Post, that he has fully corroborated the F.I.R.(Ext.1) and the prosecution case. He had specifically stated that search and recovery of ganja was made in presence of P.W.12, Circle Inspector Sadar, Jalpaiguri and witnesses and accordingly those were seized, sealed and labeled and samples were taken and thereafter handed over to Malkhana officer. He proved the seizure list (Ext.3) and also identified the alamats (Mat. Exts. I to VII) and the labels [Exts. 4 (series), 5 (series), 6 (series) and 7(series)]. He was cross-examined by the defence at length but his statements-in-chief remained unshaken. During cross-examination he even affirmed his statements made in his examination-in-chief relating to the search, recovery and seizure of 'ganja' in presence of witnesses and gazetted officer from the sacks carried on the roof of the bus by the appellant and Sintu Biswas.
P.W.12, Circle Inspector Sadar, Jalpaiguri who acted as Gazetted officer and under whose supervision search and seizure was made also corroborated the above statements of P.W.8. He had specifically stated that on getting telephonic information from Officer-in-charge, NJP Out Post (P.W.8) and as per his request he went to Tinbatti More namely the place of occurrence and saw the bus in question was detained there. He further deposed that on enquiry, conductor of the said bus told them about loading of four chillies bags in that bus from Mathabhanga by two passengers of the bus. Then appellant and Sintu Biswas came out from the bus and claimed those sacks to be their own. Officer-in-charge, NJP Out Post then made search of those sacks in his presence and in presence of witnesses as also appellant and Sintu Biswas and therefrom recovered seven packets containing total quantity of 29 Kg 500 gms of 'ganja' which were seized and labeled in presence of witnesses and accused who signed thereon and he also signed on the seizure list and labels. He further deposed that from each packets 100 gms. of ganja as sample were taken and those were also sealed and labeled. He identified his signatures on the seizure list and labels and also identified the appellant and Sintu Biswas in course of recording his evidence before court. He was also cross-examined by the defence at length but his statements-in-chief remained unshaken. During cross-examination he specifically stated that he supervised about keeping of the alamats in Malkhana and verified the property register.
The above statements of P.W8 and P.W.12 relating to search and seizure of the ganja found inside four chillies sacks from two passengers of the bus in question also found corroboration from the neutral seizure witnesses P.W. 9 and P.W.10 namely the driver and conductor of the bus in question as also local witnesses P.W. 5 and P.W.6 and P.W.7,a police officer. Both the conductor and driver of the bus in question duly identified their signatures on the seizure list relating to seizure of ganja by police and the seized alamats recovered from four sacks of chillies loaded in their bus from Mathabhanga college More by the two passengers for transportation to Siliguri as also their signatures on the labels. P.W.11, the investigating officer, has stated that those alamats were kept in Malkhana and entered in property register at serial no. 59/06 dated April 18, 2006(Ext.10) and he sent those alamats to FSL for examination through court vide challan under memo no.1449/06 dated April 19,2006 (Ext.14) and thereafter collected the report (Ext.15) where the expert had opined that the samples contained Ganja. They were also cross-examined at length by the defence but that yielded no fruitful result.
Thus it is apparent from the above that search was made at a public place in presence of a gazetted officer and independent witnesses and 'ganja' was recovered and seized from the chillies sacks loaded on the vehicle. So provisions of section 43 of the Narcotic Drugs and Psychotropic Substance Act will apply and not section 42 of the said Act and as such there was no requirement of the officer conducting search to record the grounds of his belief as contemplated by the proviso to section 42. Reference may be made to the decision of State of Haryana vs. Jarnail Singh and others reported in (2004) 5 SCC 188.
The above principles of law has already been discussed by us in the matter of Biswajit Das and Anr. vs. State of West Bengal reported in (2015) 3 Cal LT 359 (HC).
Thus we find from the above that procedure relating to search, seizure, seal and label of the contraband articles had been properly complied with adhering to the provisions prescribed under the NDPS Act. It is also evident from the record that seizure of the contraband articles were made on April 18, 2006 and those were kept in Malkhana after making entry in the property register under serial no.59 dated April 18, 2006 (Ext.10) and on the very next day it was sent to the FSL through court vide challan under memo no.1449/06 dated April 19, 2006(Ext.14) and report was collected (Ext.15) where expert had opined that samples contained ganja. Therefore, our interference with the impugned judgment is not required on the above ground.
With regard to applicability of Section 52A of the NDPS Act, it is very clear from the section itself that it relates to the disposal of seized narcotic drugs and psychotropic substances. So this provision will come into play and the procedure enunciated therein will be required to be followed, if the contraband article is required to be disposed of before the conclusion of the trial. Indisputably, seized article in question had not been disposed of at the stage of investigation in the present case. Moreover, the applicability of section 52A of the NDPS Act has been elaborately discussed by us in a judgement dated September 22, 2015 delivered in the matter of Kalimuddin Mia vs. The State of West Bengal (in re: CRA 548 of 2007) with the matter of Mahesh Barman vs. The State of West Bengal (in re: CRA 544 of 2007). In the above judgment we arrived at the above conclusion taking into consideration the proposition of law settled by the Hon'ble Supreme Court in this regard in the matter of the decision of State of Punjab vs. Makhan Chand, reported in (2004) 3 SCC 453.
Therefore, we do not find any substance in the submissions made on behalf of the appellants in this regard for the purpose of interfering with the impugned judgment.
The second limb of proponent of the learned counsel for the appellant pertains to doubt about the identification of the appellant towards his involvement in the commission of the alleged offence. In this context, the learned counsel has drawn our attention towards the evidence of P.W.1, P.W.2, P.W.3, P.W.5, P.W.9 and P.W.10 and submitted that they did not identify the appellant to be the person from whose possession ganja was recovered though reportedly claimed to be present at the time of conducting raid.
It is evident from the evidence of P.W.1, P.W.2 and P.W.3, the constables and police driver, that on the relevant date they merely accompanied the defacto- complainant to the place of occurrence to work out the source information and did not participate in raid and/or in the matter of search, recovery and seizure of contraband articles. Similarly, P.W5, P.W.9 and P.W.10 though corroborated the case of the prosecution relating to search and seizure of ganja concealed in four sacks containing green chillies from two passengers of the bus in question but failed to identify the appellant. But it is apparent from the evidence of P.W.8,the defacto-complainant,P.W.12, Circle Inspector Sadar, Jalpaiguri under whose supervision search and seizure was made, P.W.7, a police officer who participated in the raid and P.W.6, a local witness having motor parts shop near the place that they have clearly identified the appellant and Sintu Biswas to be the passengers of the bus in question from whose possession seven packets of ganja concealed in four sacks containing green chillies were recovered and seized in their presence. So non-identification by P.W.1, P.W.2, P.W.3, P.W.5, P.W.9 and P.W.10 of the appellant from whose possession ganja was recovered will not be fatal for the prosecution case in view of the identification of the appellant by the defacto-complainant, Circle inspector, under whose supervision search and seizure was made,P.W.7,a police officer who participated in the raid and P.W.6, a local witness having motor parts shop near the place and also in view of the appellant's admission of putting his signatures on the seizure lists and labels, though claimed to have signed on blank papers and his bald denial during his examination under section 313 of the Code of Criminal Procedure. To add further, during his examination under section 313 of the Code of Criminal Procedure appellant at one place claimed that police arrested him from NJP Bhai Bhai Hotel but the arrest memo does not support his above claim. Moreover, in order to substantiate his above claim he also failed to produce any iota of evidence. Therefore, our interference with the impugned judgment is not required on the above ground.
Considering the distinguishable facts and circumstances of the instant case, as discussed hereinabove, the decisions of Ouseph (supra), Munna Nai (supra), Makhan Barman (supra), Noor Aga (supra) are not applicable in this case. So, none of the aforesaid decisions come as an aid to support the case of the appellant.
With regard to the alternative prayer of the learned Advocate for the appellant for modification of default sentence awarded by the learned trial Court, we find from the record that though the appellant and Sintu Biswas were convicted and sentence to suffer imprisonment and also to pay the fine in default to suffer further period of imprisonment but only this appellant had preferred this appeal. It also appears from the record that they are in custody since the day of their arrest on April 18, 2006 and nothing was brought on record to show that they are the habbitual offenders and/or that it was not their first offence.
In the matter of Shanti Lal V. State of M.P. reported in (2008) Criminal Law Journal 306, it was held by the Hon'ble Supreme Court that term of imprisonment in default of payment of fine is not a sentence but it is a penalty which a person incurs on account of non-payment of fine and considering the poor condition of the accused person, and that he was merely a carrier and it was his first offence while upholding the conviction and sentence of rigorous imprisonment of 10 years and fine of repees one lakh for the offence punishable under section 18 of the NDPS Act reduced the period of sentence in default of payment of fine from three years to six months.
In the matter of Shahejadkhan Mahebubkhan Pathan V. State of Gujrat reported in 2012(4) Crimes 309 (SC) the Hon'ble Supreme Court considering the poor condition of the accused person and it was his first offence while upholding the conviction of the appellants under the NDPS Act modified the sentence from 15 years to 10 years and reduced the period of sentence from three years to six months in default of payment of fine of rupees 1.5 lakhs.
Attention of this Court has not been drawn by the learned counsel appearing for the State towards any material on record to take a different view. Therefore, considering the circumstances placed before us on behalf of the appellant that he was of young age of 23 years at the time of commission of offence and is a very poor man and it was his first offence and if he fail to pay the amount of fine imposed by the learned trial court, he has to remain in jail for a period of two years in addition to the period of substantive sentence because of his inability to pay fine, we are of the view that serious prejudice will be caused not only to him but also to his other family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for 6 (six) months instead of two years as ordered by the learned trial court.
Accordingly, for the reason stated above, this appeal is partly allowed, the conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for 10 years is confirmed. An order for payment of fine of rupees one lakh is also upheld. But an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment of two years is reduced to rigorous imprisonment for six months. To that extent, the appeal filed by the appellant is allowed.
Considering the entire facts and circumstances and to meet the ends of justice this benefit should also be extended to the other co-accused Sintu Biswas who along with the appellant was convicted and sentenced to suffer imprisonment and also to pay the fine in default to suffer period of imprisonment but could not be able to prefer any appeal.
If the appellant as also Sintu Biswas have undergone substantive sentence of imprisonment for ten years as also rigorous imprisonment of six months as modified by us in default of payment of fine, the appellant and Sintu Biswas shall be set at liberty forthwith unless they are required in any other offence. If the appellant and Sintu Biswas have not completed the said period, they will be released after the period indicated herein above is over. The period of detention of the appellant and Sintu Biswas undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428, Cr. P. C. This appeal is thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above.
Copy of this judgement along with the lower court records be sent down to the trial court forthwith by a special messenger for information and taking appropriate steps.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)