Calcutta High Court (Appellete Side)
Loknath Sarkar & Another vs The State Of West Bengal on 20 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
416
SS/AB/PA
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 754 of 2012
LOKNATH SARKAR & ANOTHER
VS
THE STATE OF WEST BENGAL
For the Appellants : Mr. Sandipan Ganguly, Sr. Adv.
Mr. Dipanjan Dutt, Adv,
For the State : Mr. Sanjay Bardhan, Adv,
Mr. Pratick Bose, Adv,
For the NCB : Mr. Samiran Pal, Adv,
Heard on : December 20, 2017
Judgement on : December 20, 2017
Joymalya Bagchi, J. :
The appellant no.1 had been convicted for commission of offence punishable under sections 20(b)(ii)(C)/29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act) and was sentenced to suffer rigorous imprisonment for 12 years and to pay a fine of Rs.1,20,000/- (Rupees one lakh and twenty thousand) only, in default to suffer rigorous imprisonment for 2 years more while appellant no.2 was convicted for commission of the offence punishable under section 20(b)(ii)(C) of the NDPS Act and sentenced to suffer the same punishment as appellant no.1.
The prosecution case, as alleged, against the appellant and other co- accused persons is to the effect that acting on a specific intelligence, which was intimated to the superior officer, a group of officers attached to Narcotic Control Bureau, Eastern Zonal Unit, Kolkata (hereinafter referred to as "NCB") went to Birati More on Jessore Road on 11th July, 2002, around 2 p.m. to work out the said information. After some time a person came to the bus stop with cloth bundle on his right shoulder and he was intercepted. On being questioned, the person disclosed his identity as Biswanath Ghosh, appellant no.2 herein. NCB officers disclosed their identities and expressed their intention to search the cloth bundle which was carried by the suspect. The suspect further disclosed that he was carrying ganja inside the said bundle.
In presence of eyewitnesses as well as gazetted officer, the cloth bundle carried by appellant no. 2 was searched and a rectangular slab wrapped in black polythene was seized on the suspicion that the same was ganja. A portion of the slab when tested in the field test kit and it responded positive to the test of ganja. The incriminating article was weighed and was found to be 22.750 kgs. Ganja samples in duplicate in 25 gms. each were kept separately in separate envelopes with labels and sealed. Remaining portion of the article was seized under a seizure list and packed and labelled.
On interrogation appellant no.2 informed the members of the raiding party that he had collected the ganja from the residence of the appellant at 41, Khudiram Bose Sarani, Birati, Kolkata-700 051 in order to carry it to one Dulal of Shakherpara of Saoraphuli who had a readymade garments shop near Shaoraphuli railway station for a commission of Rs.300/-. As a follow up action, the NCB officers along with the appellant no. 2 proceeded to the house of the appellant and they found that the house was owned by one Chabirani Karmakar @ Chabi Karmakar. On spot enquiry, Chabi Karmakar intimated the officers that a portion of the house was rented out to the appellant and it was found to be under lock and key. The raiding party waited for about 40 minutes for the appellant to return but he did not turn up. The officers requested the landlady to open the door of the tenanted portion but she stated that she had no key. The officers thereafter broke open the lock of the door of the tenanted portion and conducted search and two gunny bags containing loose and slabs of ganja were recovered. Four other rectangle slabs of ganja were recovered from the floor of the said house. A number of documents and Indian currency of Rs.5050/- were also recovered under the mattress of the bed. Small pieces were taken from the recovered articles and those pieces tested positive to ganja. Entire consignment was weighed and was found to be around 136.1 kgs. It was seized under a seizure list. Samples of 25 grams each in duplicate were drawn and kept in separate polythene packets and sealed and labelled in presence of the gazetted officer. Copy of the seizure list was given to Chabirani Karmakar. Notice under Section 67 of the NDPS Act was issued to Chabirani Karmakar as well as to Appellant no.2 and they were directed to come to the NCB Office on 11.7.2002 at 19.00 hours. Chabirani Karmakar tendered her voluntary statement disclosing that the premises had been rented to the appellant at the monthly rental of Rs.2,600/- and she handed over the tenancy agreement to the NCB officers. Appellant no.2 also tendered voluntary statement to the officers. Pursuant to another follow up action, residential premises of co-accused Dipak Majumder @ Dulal was searched but no incriminating article could be recovered. Notice under Section 67 of the NDPS Act was served upon Dulal who denied his involvement. However, on the basis of statement of co-accused Biswanath Ghosh he was arrested in connection with the instant case. Notice was served upon the appellant no.1 but he did not turn up. Subsequently the appellant no. 1 was shown arrested as he was in detention in another narcotic case. Samples had been sent for test to the Chemical Laboratory, Customs House, Calcutta. On receipt of the chemical test report showing that the seized articles contained ganja, petition of complaint was filed against appellant no.1 under Section 20(b)(ii)(c) of the NDPS Act and appellant under Sections 20(b)(ii)(c)/29 of the NDPS Act and against Dipak @ Dulal Majumder under Section 29 read with Section 21 of the NDPS Act. Charges were framed against the appellant and co-accused persons, as aforesaid. They pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 8 witnesses and exhibited a number of documents. The defence of the appellants and the other accused person was one of innocence and false implication. It was the specific defence of the appellant no.1 that no narcotic substance was seized from the tenanted portion belonging to him at premises no.41, Sahid Khudiram Bose Road, Birati, as aforesaid.
In conclusion of trial, the Trial Judge by the impugned judgment and order convicted and sentenced the appellants, as aforesaid. By the selfsame judgment and order, Dipak Majumder was, however, acquitted of the charge leveled against him.
Mr. Ganguly, learned senior counsel appearing with Mr. Dutt argued that mandatory requirement under Section 42(2) of the NDPS Act was not complied with in respect of the search conducted in the tenanted portion belonging to the appellant no.1. Non-compliance of such statutory requirement vitiated the seizure and reliance in that regard was placed on Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539. It was further submitted that the gazetted officer, namely, Sunil Kumar, who is said to have accompanied the raiding party, has not been examined in the instant case. It is argued that no independent witness of the seizure was examined and even the landlady, Chhabirani Karmakar has not been examined in the instant case. Hence, the alleged seizure from the premises of the appellant has not been proved beyond reasonable doubt.
On the other hand, Mr. Pal appearing for the NCB argued that compliance of Section 40(2) of the NDPS Act was not necessary as the search and seizure had been effected in a public place. It was further contended that the evidence of the official witnesses clearly proved the seizure of 136.1 kilograms of ganja from the tenanted premises of the appellant no.1 and hence, the appeal is liable to be dismissed.
Mr. Bardhan, learned lawyer appearing for the State submitted that the Gazetted Officer, namely, Sunil Kumar was a member of the raiding party and, therefore, the search and seizure was conducted in terms of Section 41(2) of the NDPS Act and, accordingly, the requirements of Section 42(2) is obviated in view of the law declared in State of Haryana v. Jarnail Singh, (2004) 5 SCC 188.
Crux of the matter which falls for decision is whether the search and alleged recoveries from the appellants were done in consonance with law or not.
P.W.3 to P.W.8 are members of the raiding party. All the witnesses have deposed in unison that a secret information was received on 11.7.2002, which was diarized and intimated to a superior officer. Pursuant to such secret information, they along with the Superintendent, Sunil Kumar proceeded to Birati bus stand and intercepted a person who disclosed his identify as appellant no. 2. Appellant no.2 was carrying a cloth bundle on his shoulder. The NCB officers searched the cloth bundle in the presence of independent witness and 20.750 kilograms of ganja wrapped in a polythene packet was recovered from the said bundle and seized under a seizure list. Appellant no. 2 disclosed that he received the ganja from the appellant no. 1 who resided at Birati. The officers along with appellant no. 2 and the independent witness proceeded to work out the information and reached premises no.41, Sahid Khudiram Bose Road, Birati. The officers disclosed their identity to the owner of the house, Chhabirani Karmakar and expressed their intention to search the premises. The premises was under
lock and key. The officers waited for some time for the appellant no. 1 to return, but the latter did not turn up. Then the officers asked the landlady to open the door but she was unable to provide the key of the said tenanted portion. Accordingly, the officers broke open the lock of the door and on entering they found huge quantity of ganja weighing about 136.1 kilograms, other documents and cash of Rs.5,050/- in the said room. The said articles were seized under a seizure list. Six samples of 25 grams each were taken from the seized consignment suspected to be ganja and kept in separate polythene packets, sealed and labeled in presence of the Gazetted Officer. Notice under Section 67 of the NDPS Act was served upon Chhabirani Karmakar as well as appellant no. 2 who were directed to appear before the NCB Officers at their office. Statement of Chhabirani Karmakar was recorded. Raid was conducted in the house of co- accused, Dulal @ Dipak Majumder but no contraband could be recovered. Notice was also issued upon Dulal who denied his involvement in the alleged incident. Witnesses have proved the seizure lists as well as the articles which were seized from the appellants in the course of the search.
Analysis of the aforesaid evidence would show that the officers of the NCB have claimed that they had prior secret information about dealing in ganja at Birati More on Jessore Road and such information was diarized and sent to the superior officer. However, no contemporaneous document, namely, general diary to that effect has been exhibited in the instant case. It has been argued that as the seizure of ganja from appellant no.2 was in a public place, compliance of Section 42(2) of the NDPS Act is not necessary. Admittedly, search and seizure of ganja from appellant no.2 was from a public place and did not attract the provisions of section 42 of the NDPS Act. However, in view of the fact that the other consignment of ganja was seized from the tenanted premises of appellant no.1 at 41, Sahid Khudiram Bose Road, Birati, the search at the said premises required to be conducted in accordance with the procedure contemplated under section 42 of the Act.
Once the NCB officers proceeded to conduct search in the tenanted premises of the appellant no.1, Section 42 of the NDPS Act got attracted and it was the duty of the said officers to record the information giving rise to the search in writing and communicate it to their superior officer. It is true when information relating to search of a private premises is received by a raiding party in the course of patrol duty in the field, the raiding party may proceed to the spot and effect search and seizure but immediately thereafter they are required to reduce such information into writing and inform the same to their superior officer. Law in this regard has been succinctly laid down by the Constitution Bench in the case of Karnail Singh (supra). In paragraph 35 of the said report, the Constitution Bench elucidated the application of Section 42(2) of the NDPS Act, as follows:-
"(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-
section (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case.
The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
I have tested the evidence of prosecution witness in the light of the aforesaid ratio as declared by the Apex Court. I do not find any material on record to indicate that immediately after the search, the information giving rise to the search was diarized and sent to the superior officer as is laid down in Karnail Singh (supra). It is a case of the total non-compliance of Sections 42(1) and (2) which would, therefore, vitiate the search and seizure of the narcotic substance from the tenanted premises of appellant no.1.
Faced with such a situation, it has been argued that the search was effected in the presence of a gazetted officer, namely, Sunil Kumar, in terms of Section 41(2) of the NDPS Act and not under Section 42 of the NDPS Act. Reference has been made to Jarnail Singh (supra). There is no dispute that search and seizure by a gazetted officer under Section 41(2) of the NDPS Act would not attract the requirements of Sections 42(1) and (2) of the NDPS Act. However, one has to examine such plea in the light of evidence on record. Prosecution has failed to examine the gazetted officer, Sunil Kumar, who, it is claimed had conducted the search. No explanation is forthcoming as to why the said officer was not examined. In the face of non-examination of Sunil Kumar, I hold that the best evidence with regard to search conducted by him in terms of Section 41(2) of the NDPS Act is withheld and I am afraid that such lacuna in the prosecution case cannot be filled up by referring to the evidence of other witnesses. It has been argued that the signature of the gazetted officer is borne out from the seizure list and other contemporaneous documents which were prepared at the time of search and seizure. Mere signature of the said officer in the absence of his evidence as to his presence at the time of the seizure may not be sufficient to prove the fact that he was the leader of the raiding party and had in fact effected search resulting in recovery of narcotic substances.
In view of the aforesaid factual backdrop, I hold that the prosecution has failed to prove that the search at the premises of the appellant no.1 had been conducted by the gazetted officer under Section 41(2) of the NDPS Act. On the other hand, it appears that there was total non-compliance of Sections 42(1) and (2) of the NDPS Act in effecting the search and recovery from appellant no.1 and the ratio in Jarnail Singh (supra), is factually distinguishable in this case.
Moreover, the factum of seizure from the tenanted premises of the appellant no.1 is also shrouded in mystery. Apart from the evidence of the members of the raiding party, no independent witness was examined to support the recovery of ganja from his tenanted premises. This is most significant particularly when such search and seizure was effected in the absence of the said appellant. It is also important to note that the land lady of the premises has also not been examined to establish the prosecution case of search and seizure of narcotics from the said tenanted premises. For the aforesaid reasons, I am constrained to hold that the prosecution has failed to prove recovery of ganja from the possession of the appellant no.1 beyond reasonable doubt, although the prosecution case against the appellant no.2 has been duly established.
Accordingly the conviction and sentence imposed upon the appellant No.1 is set aside and that of the appellant no.2 is upheld.
Appellant no.1 shall be released from the custody forthwith upon his executing a bond to the satisfaction of the trial court for a period of six months in terms of Section 437A of the Code of Criminal Procedure.
Period of detention suffered by the appellant no.2 during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
This appeal is, accordingly, disposed of.
Copy of the judgement along with LCR, if any, be sent down to the trial court at once for necessary compliance.
Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)