Calcutta High Court (Appellete Side)
Haniph Seikh vs The State Of West Bengal on 26 November, 2014
Author: Samapti Chatterjee
Bench: Nishita Mhatre, Samapti Chatterjee
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Samapti Chatterjee
C.R.A 236 of 2010
Haniph Seikh.......Appellant
Versus
The State of West Bengal.....Respondent
For the Appellant : Mr. Sekhar Basu, Learned Senior Advocate
Mr. Tapan Deb Nandy
Mr. Karan Sharma
For the State : Mr. B.R. Ghoshal, Learned Senior Advocate
Mr. Sanjoy Bardhan
Heard on : 03.11.2014, 07.11.2014
Judgment on : 26TH November, 2014.
Samapti Chatterjee, J.
1. The appellant preferred the instant appeal assailing the Judgment and Order of conviction passed in Case No.N-62 of 2006 by the learned Judge, Special Court under N.D.P.S. Act, Barasat, North 24 Parganas on 10th March, 2010 convicting the appellant for the offence punishable under Section 18 (b) of the N.D.P.S. Act. He is sentenced to suffer Rigorous Imprisonment for 10 (ten) years and also to pay a fine of Rs.1,00,000/- in default to suffer Rigorous Imprisonment for 6 (six) months.
2. The case made out by the prosecution may be summed up thus.
On 29.03.2006, acting on a specific information which was duly reduced into writing and intimated to one superior officer and on getting movement order, the batch of officers and staff of N.C.B. (E.Z.U) Kolkata reached at the crossing of Awalsiddhi more (Chowmatha) on National Highway 34 at about 15.50 hours and stationed there. At about 16.00 hours being shown by the informer, the officers spotted one person standing at the crossing having a multi coloured nylon shopping bag in his right hand and the officers then encircled that person and disclosed their identity before him, while that person disclosed his name as Haniph Seikh.
Thereafter, the officers expressed their intention to search that nylon shopping bag as the officers got specific information that a good quantity of opium was kept inside that bag. Then the officers called two independent persons from the on-lookers as independent witnesses to witness the search. Then the accused voluntarily handed over that bag to N.C.B. officers and confessed that there is opium inside that bag. Before conducting search of that bag, the N.C.B. officers offered themselves to be searched by the accused, but he declined to do so.
Thereafter the said bag was searched in presence of the accused person and the independent witnesses wherefrom one polythene packet containing blackish brown coloured sticky substance believed to be opium was recovered and on spot testing with the drug detection kit which responded positive to the test of opium and on weighment of the recovered substance it was a round 3 kgs gross.
Accordingly investigation started and after completion of the investigation charge under Section 18(b) of N.D.P.S. Act has been framed against accused Haniph Seikh to which he pleaded not guilty and hence, the trial started and after completion of trial the learned Judge found the accused person guilty and convicted as aforesaid.
3. In course of trial, the prosecution examined as many as 5 (five) witnesses in all and proved several documents and material exhibits, whereas the accused has examined only one D.W. in his support.
4. P.W.1, was the Intelligence Officer of N.C.B. E.Z.U. Kolkata. He lodged the written complaint against the appellant namely Haniph Seikh under Section 21 ( c ) and 29 of the N.D.P.S. Act. But he in his evidence stated that he did not know on the basis of which document he filed the complaint against the appellant.
5. P.W.2 was also the NCB Officer who in his evidence stated that on 29th March, 2006 upon receiving some information he and Manotosh Sarkar at about 3:30 P.M. reached at Awalsiddhi More. After ambushing there for sometime accused Haniph Seikh reached there. He and Manotosh Sarkar encircled him as they had the information that Haniph Seikh had opium with him. He further stated in his evidence that he informed Haniph Seikh that they were the officers of NCB and they had the information that he was carrying opium which was kept in a bag. He also deposed that two persons were called from that place for being witness in that case. In presence of two witnesses they searched the bag and it was found brown sticky substance. They tested the said substance and it was proved to be positive. The total quantity of substance was 3 kg. Out of the said quantum 25 grams each was taken and kept into polythene packet and were sealed and labeled. He further deposed that those two sample packets were kept in an envelop and the said envelop was also sealed and labeled and signature was obtained. Thereafter 2.95 kgs substance were sealed and labeled and signatures were also obtained like the above manner. Nylon packet was kept in the envelop and sealed and labeled in similar manner. He further deposed that test kit, weighment and packets were prepared by him.
He further deposed that a seizure list was prepared by M. Sarkar, Intelligence Officer and a notice under Section 67 of NDPS Act was served upon the accused (marked as Exbt-2).
P.W.2 further deposed that they asked the accused to appear in their office and the accused person on his own went to their office with them. The accused further made a voluntary statement in their office in presence of P.W.2 in his own handwriting containing three pages (marked as Exbt-3).
He further deposed that he prepared the arrest memo as per direction of M. Sarkar.
P.W.2 in his evidence also stated that he did not receive the source information personally. He further stated in his evidence that they reached the place of occurrence 10 to 15 minutes prior to 4 P.M. and there they waited for the accused persons. When the accused person came they encircled them.
He further deposed that he did not take any photograph of the scene of occurrence and the other officers also did not prepare the same. Manotosh Sarkar, Intelligence Officer was the seizing officer as well as the Investigating Officer. In his evidence P.W.2 also stated that they did not try to ascertain the address of the search and seizure witnesses as well as the genuineness of the witnesses. He did not personally search the said bag. Accused himself voluntarily handed over the bag containing contraband articles to Manotosh Sarkar. He further deposed that the said place of occurrence was not spacious and at the time of detection there was traffic congestion. There were several shops near the said place also.
He further deposed that shops were open. He also stated in his evidence that he did not go to any shop or ask any shop-keeper to be the witness during the search and seizure, nor did he take assistance from any other person except those witnesses.
P.W.2 also stated in his evidence that he collected the voluntary statement of the accused and handed over the same to Mr. M. Sarkar. P.W.2 also stated that he could not remember whether any gazetted officer was present at the time of writing of the voluntary statement by the accused
6. P.W.3 was the Intelligence Officer. In his evidence he stated that they reached at about 3:30 P.M. to the place of occurrence and they encircled the accused person and informed him that they are the NCB Officer. He also stated in his evidence that he could not remember the exact time but it was 29/30th March, 2006 when he went after testing the sample from the recovered article.
P.W.3 further deposed that he had no documentary evidence to prove that the accused went to their office on his own accord. P.W.3 further stated that he had no knowledge regarding any offer made by the accused voluntarily to record his statement. P.W.3 further deposed that at the time of first detection in this search he was present but he was not present on the subsequent searches. P.W.3 did not personally search the accused on the date. He also deposed that he did not receive the source information. He in his evidence stated that many people were there at the said scene of occurrence as the said place was a congested one. He further deposed that he found large number of shops were there near the place of occurrence.
P.W.3 did not find the accused getting down there from any bus or rickshaw etc. P.W.3 also did not make any endeavor to have any respectable person of that locality as witness. He also deposed that he did not try to find out any gazetted officer at the time of search and seizure. P.W.3 also deposed that he did not try to find out the address of the seizure list witnesses.
7. P.W.4 was also the Intelligence Officer of the NCB. In his evidence he narrated the same story as stated by the P.W.1, P.W.2 and P.W.3 in their evidence.
He in his evidence further stated that since accused Anwar Seikh was not in his house therefore his mother received the notice (Exbt-14). Since nothing was found in his house the P.W.4 prepared a nil seizure list.
In his evidence P.W.4 further stated that original Mat Exbt-I was sealed and labeled and he put his signature.
In his evidence he further stated that on the label of Mat. Exbts. I, II and III the place of seizure which was not mentioned. P.W.4 further deposed that the notice under Section 67 was served upon the accused by senior Intelligence Officer namely Arup Pal prior to preparing the seizure list.
P.W.4 in his evidence further stated that there was no signature on the go down Register to show that he deposited the alamat to the said go down.
P.W.4 further stated that in the voluntary statement of the accused it was not mentioned that when the statement was recorded and when it ended.
He further deposed that no seal impression was handed over to the go down Officer in separate sheet along with alamat. P.W.4 further deposed that he did not see the seized alamat in court. P.W.4 in his evidence further stated that they did not inform the local Police Station wherefrom the said contraband was recovered.
8. P.W.5 was the Chemical Assistant, Grade-I Officer. He stated in his evidence that after testing the contraband he prepared the report marked as Exbt.13.
He further deposed on the test memo that there was no endorsement that it was received by him and it was prepared by him. It was also stated by the P.W.5 that there was no mentioning in his report on which date sample packet was opened but it was mentioned that it was opened on 20th April, 2006 and work continued till 24th April, 2006.
There was no mention in Mat. Exbt.I and Exbt.13 as to on which date the seals were given.
P.W.5 further deposed that in the report it was not mentioned that he received the contraband article on 31st March, 2006. Furthermore, he had no document to show that the sample was in safe custody from the period of 31st March, 2006 up to opening of the same packet on 20th April, 2006.
He further deposed that in the report it was not mentioned what was the other components in respect of remaining 90.5 per cent of the contraband. He also stated in his evidence that there was no note in the report that he personally examined the said sample.
9. D.W.1, Panchayat Prodhan of Mira Gram Panchayat No.1 stated in his evidence that he heard a hue and cry coming from the ground- floor, on reaching there he found that one person was arrested by NCB Officers. He asked them whether anything was recovered from him then the officer told him that nothing was required to be recovered for arresting a person.
D.W.1 further deposed that actually nothing was recovered from Haniph Seikh. D.W.1 in his evidence further stated that he did not inform the local Police regarding arrest of the person from his area. D.W.1 also deposed that he did not know the location and the photograph of the house of the accused.
10. Mr. Sekhar Basu, learned Senior Counsel appearing for the appellant submitted that all the officers of NCB like P.W.1, P.W.2, P.W.3, and P.W.4 deposed in same fashion and identical manner.
11. Mr. Basu further submitted that no independent witness was examined by the prosecution. Not only that no attempt was made to summon the independent witnesses and further seizure report was not proved by examining the seizure witnesses.
12. Mr. Basu further contended that non-examination of two independent witnesses who were present at the time of alleged interception of the accused as also during the entire search, seizure and other formalities conducted by the officer of the NCB on the spot was contrary to law. Reliance was placed on by Mr. Basu on a Supreme Court decision reported in (2014) 2 C Cr LR (Cal) 515 (Sumer Agarwal @ Bikash Vs Union of India (Paras-17, 18, 19, 21). He also relied on a decision reported in 2008 (2) CLJ (Cal) 523 (The Asst. Director of NCB Eastern Zonal Unit, Calcutta Vs. Dipak Poddar ) (Paras-19, 21) and 2000 SCC (Cri) 189 (Thandi Ram Vs State of Haryana).
13. Mr. Basu, the learned Senior Counsel further urged that provision under Section 67 of the NDPS Act was not complied with by the prosecution. It runs as under:-
"67. Power to call for information, etc.-Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act-
(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or oder made thereunder;
(b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) Examine any person acquainted with the facts and circumstances of the case".
He further contended that confessional statement was not made voluntarily. On the contrary it is evident from the statement made by the accused under Section 313 of the Cr.PC answer to question no.5 appellant stated that by force Intelligence Officer obtained his handwriting on some papers and they obtained the signature on some blank papers. Therefore, Mr. Basu contended that so called confessional statement is hit by Sections 21 and 25 of the Evidence Act, 1872. In support of his contention reliance was placed on (2010) 3 SCC (Cri) 344 (Raju Premji Vs Customs, Ner, Shillong Unit) (Paras-21, 23, 24, 25) and (2012) 1 SCC (Cri) 555 (Nirmal Singh Pehlwan @ Nimma Vs Inspector, Customs, Customs House ) (Paras-8, 15) .
14. Mr. Basu, learned Senior Counsel appearing for the appellant further urged that the prosecution has failed to comply with Section 52A which is mandatory in nature. Section 52A is extracted below:
52A: Disposal of seized narcotic drugs and psychotropic substances-
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2)Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country or origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identify of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under Sub-Section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872(1 of 1872) or the Code of Criminal Procedure, 1973, (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence".
In support of his contention Mr. Basu, learned Senior Counsel relied on a Supreme Court decision reported in (2014) 2 C Cr LR (Cal) 288 (Makhan Barman Vs State of West Bengal) (Paras-18, 19), 2000 (1) CHN 803 (Tej Bahadur Singh & Anr. Vs NCB & Anr) (Paras-10, 11, 15 and 16), 1997 CRI LJ 4553 (Munna Nai, Appellant Vs. The State, Respondents) (Paras-6, 7, 8), JT 2008 (7) SC 409 (Noor Aga Vs State of Punjab & Anr) (Paras-38, 41, 42, 105, 126, 127 128), (2009) 2 C Cr LR (SC) 237 (Union of India Vs Balmukund) (Paras-25, 27, 28, 29, 34, 37, 39).
15. On the other hand Mr. Bardhan, appearing for the NCB draw our attention to the Section 114 (e) of the Evidence Act, 1872 which is as under :
"114. Court may presume existence of certain facts.-The Court may rpesume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(e) That Judicial and official acts have been regularly performed;
He further contended that several agencies have been vested with the power to record the statement of the accused but all the agencies do not enjoy equal power. He further contended that the statement recorded under Section 67 of the NDPS Act is different than the statement recorded under Section 161 and 164 of the Cr.PC. It was his contention that Court may not accept the statement recorded under Section 161 and 164 of the Cr.PC, but the statement recorded under Section 67 of the NDPS Act should be considered which is accepted by the Court. Therefore, the statement made under Section 67 of the NDPS Act cannot be treated as confessional statement.
16. Mr. Bardhan further contended that non-production of independent witnesses may not vitiate the case of the prosecution. In support of his contention Mr. Bardhan relied on Supreme Court decisions reported in 1994 C Cr LR (SC) 121 (State of Punjab vs Balbir Singh) (Paras-6,7,10,23,24, and 25), (1995) SCC-172 (State of Punjab vs Baldeb Singh) Page-9 sub -paras-6, 4A, 7 and 4), 2011 Cr LJ 257 (Subhas Chandra Jana vs Ajibar Mirdha), (2014) Cr LJ 4203 (Brijesh Kumar Gupta vs NCB) Para-13, and AIR 2001 (SWC) 1002 (Gurbax Singh vs State of Haryana) Para-9.
17. Mr Bardhan further contended that the defence party should put his case in cross-examination of the witnesses produced by the prosecution. In support of his contention Mr. Bardhan relied on the decision reported in AIR 1961 (Cal) Page 359 (Para 10 and 11) (A.E.G. Carapiet vs. A.Y. Derderian) . We however find that the decision has no manner of application in the present case in hand as presumption can be drawn in civil case but not in criminal case.
18. Mr. Bardhan, learned Advocate appearing for the NCB further submitted that voluntary statement recorded under Section 67 of the NDPS Act cannot be ignored by the Court as the same is confessional statement of the accused. In support of his contention Mr. Bardhan relied on a Supreme Court decision reported in (2008) 4 SCC Page 668 (Kanhailal Vs Union of India) and (2008) 2 SCC (Cri) 474 (Kanhaiyalal vs Union of India).
19. Mr. Bardhan further contended that for defective investigation prosecution case should not be vitiated. In support of his contention Mr. Bardhan relied on a Supreme Court decision reported in (2013) 1 SC 627 (Hema vs The Inspector of Police, Madras) Para-10 and also relied on AIR 2001 SC 142 (Para-9) (State of UP vs Hari Mohan and others) Para-9.
We find the above referred decisions have no manner of application in the present case as it was not the case of the appellant that the prosecution's case should be vitiated on the ground of defective investigation. It is the specific case of the appellant that the so called voluntary statement made under Section 67 of N.D.P.S. Act cannot/should not be treated as voluntary/confessional statement as the accused could not make such statement voluntarily or freely when he was in the custody of police.
20. Mr. Bardhan further contended that delay in sending sample for chemical examination could not be a ground to vitiate the prosecution case. In support of his contention Mr. Bardhan relied on a decision reported in (2008) 8 SCC 557 (Hardip Singh vs State of Punjab) and also relied on a decision reported in (2010) 4 SCC 402 (Para 19-21) (State of Punjab vs Lakhwinder Singh and Anr.).
21. On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find that P.W.1, P.W.2, P.W.3 and P.W.4 all the NCB Officers deposed in the same tune and identical manner.
22. We also find from the evidence of P.W.1 where he stated that he did not know that on the basis of which document he filed that application. He also deposed that he could not say who were the members of the raiding party. It is also noticeable that P.W.2 in his evidence stated that they did not try to ascertain the address of the search and seizure witnesses. Therefore, it is well proved that no attempt was made to summon the independent witnesses for production before the Court. It is evident from the testimonies of P.W.1, P.W.2, P.W.3, and P.W.4 that in the place of occurrence there was traffic congestion and there were also several open shops near scene of occurrence. In spite of that NCB officers did not make any endeavor to call any shop owner as a local witness. We also cannot ignore the fact that the local police station was not informed by the NCB officers at the scene of occurrence wherefrom the said contrabands were recovered.
23. It is also evident from the testimony of P.W.5 that there was no mention in his report on which date the sample packet was opened. But it was mentioned that it was opened on 20th April and work continued till 24th April 2006. We also find from the testimonies of P.W.4 and P.W.5 that no certification was given by the NCB Officers for sending the sample for chemical examination. Contrabands were seized on 29th/30th March, 2006 but those were sent for chemical examination on 31st March, 2006 and date of conducting the test was 20.04.2006 to 24.04.2006.
24. We find that Section 52A of the NDPS Act which is a mandatory provision was not complied with by the NCB Officers at the time of conducting search and seizure.
We also cannot shut our eyes in respect of non-compliance of Section 52A of the said Act which is mandatory one. This provision was inserted in the Act by the legislature with an intention to prevent 'substitution' of articles seized by the concerned officer or the department. But we find in the present case the intention of the legislature has been violated.
25. Further it is also evident from the answer of the question no.5 conducted under Section 313 of the Cr.PC where the accused stated that by force the Intelligence Officers obtained his handwriting on some papers and they also by force obtained his signature on some blank papers. It is also evident from the testimonies of D.W.1 Panchayat Prodhan that he found one person was arrested by NCB Officers and when the D.W.1 asked the NCB whether anything was recovered from the accused then the officer told him that nothing was required to be recovered for arresting a person.
From a bare reading of the alleged voluntary/confessional statement of Haniph Seikh it cannot be accepted by a person of ordinary prudence. On the face of the so called voluntary/confessional statement of the accused it is unbelievable that an illiterate person can give this type of voluntary/confessional statement while he is in police custody. Furthermore, considering the answers given by the accused under Section 313 Cr.P.C we are of the opinion that the accused was compelled to sign over some blank paper and nothing was explained or read over to the accused by the so called translator Gopal Chandra Das, Head Clerk, Translator, District Judge, North 24-Pargnas, Barasat. We cannot also ignore that from the very beginning accused was under the police custody and he was interrogated by the police officer and he was not free to move. Therefore, any statement made by him in the police custody cannot be accepted as voluntary/confessional statement. Such statement cannot be treated as voluntary one. But only can be described as statement forcefully obtained by the police personnel from the accused under threat and coercion while he was in police custody which squarely offends Section 25 and 26 of the Indian Evidence Act, 1872. It is well settled by catena of Supreme Court decisions that any confessional statement given by the accused before police is inadmissible. Therefore, it is wholly insufficient to convict the accused on the basis of such so called confessional statement. In this context 'Section 25 and 26' of the Indian Evidence Act, 1872 are set out below:-
"Section 25-Confession to police officer not to be proved.-No confession made to a police officer, shall be proved as against a person accused of any offence."
"Section 26-Confession by accused while in custody of police not to be proved against him.-No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person".
We also should be very much cautious before considering statement of the accused as voluntary/confessional statement under Section 67 of the said Act whether it was willingly or voluntarily made by the accused, considering the law as stipulated under Section 24, 25, 26 and 27 of the Evidence Act.
26. Considering all the materials on record, in our opinion the prosecution has miserably failed to prove to the hilt that the appellant is guilty of the offence for which he is charged. The appellant is therefore, acquitted.
27. The Judgment of the Special Court is set aside.
28. Therefore, the appeal is allowed.
29. The appellant shall be set at liberty forthwith unless require for any other cases.
30. The seized alamats will not be destroyed since other accused is there.
31. Urgent certified photostat copy of the Judgment, if applied for, be supplied to the learned Advocate for the parties upon compliance of all formalities.
(Samapti Chatterjee, J) (Nishita Mhatre, J)