Calcutta High Court (Appellete Side)
Pintu Mandal & Ors vs The State Of West Bengal on 12 December, 2018
Author: Ravi Krishan Kapur
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. NO. 54 of 2016
Pintu Mandal & Ors.
versus
The State of West Bengal
For the Appellants : Mr. Arindam Jana
Mr. Sujan Chatterjee
For the State : Mr. Arun Kumar Maity
: Mr. Sanjay Bardhan
Heard on : 15.11.2018
Judgment on : 12.12.2018
Ravi Krishan Kapur, J:
1. This appeal is directed against the judgment and order of conviction
dated 08.12.2015 passed by the Special Judge (NDPS), 1st Court,
Raiganj, Uttar Dinajpur in Special (NDPS) Case No.08/2005 convicting
the appellants under Section 20 (b) of the Narcotic Drugs and
Psychotropic Substances Act (the Act). By the impugned order the
appellants were sentenced to undergo rigorous imprisonment for 10
years each and to pay fine of Rs.1 lakh each. In default, they were
directed to suffer further rigorous imprisonment for 6 months each.
2. The facts of the case are as follows:
(a) On 19.12.2005, information was received at the Chopra Police
Station that three youths namely (i) Pintu Mondal (ii) Md. Sintu
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and (iii) Sk. Safique all of village Mahadevpur, P.S.-Pandua, Dist.-
Hooghly, West Bengal had boarded a bus of NBSTC bearing No.
WB-63/2819 from Alipurduar to Kolkata and were carrying a
huge quantity of ganja concealed in their luggage. The matter
was forthwith entered in the police station General Diary and the
information forwarded to SDPO, Islampur and CI Islampur for
action.
(b) Upon receipt of the information, the de facto complainant being a
Sub-Inspector of Chopra Police Station along with other police
officers left for Sonarpur police station to take action on the
reported information.
(c) At approximately 19:25 hours the NBSTC bus bearing No.WB-
63/2819 bound from Alipurduar to Kolkata arrived at the
Sonarpur checkpoint. Thereafter, the de facto complainant got
into the bus and could locate three youths with two suitcases
and a handbag beneath their seats.
(d) The de facto complainant enquired of the youths whether the two
suitcases and handbag belonged to them. The three individuals
admitted that the luggage was their property but they refused to
display the contents. Accordingly, the de facto complainant
brought them to the check post and informed them that he had
specific information that they were carrying ganja and he
proposed to search their luggage.
(e) Thereafter, the de facto complainant called two independent
witnesses namely (i) Dulal Das and (ii) Nikhil Das to be present
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during the search and interrogation following which the three
youths gave their respective names and addresses. Thereafter,
the de facto complainant informed them whether they would
prefer to be searched in the presence of a Magistrate or a
Gazetted Officer. In the meantime, Guruprosad Chatterjee, CI
Islampur had arrived at the bus checkpoint and the youths
agreed to be examined in front of him.
(f) The luggage of the three individuals was then searched and the
following items were recovered:
(i) From one suitcase carried by Pintu Mondal, 15 Kg 100 grams
of Ganja was found in a yellow colour polythene wrapped in
newspaper. From this ganja, two samples of 50 gram each
were taken.
(ii) From the suitcase carried by Md. Sintu, 15 Kg 100 grams of
Ganja wrapped with the newspaper was recovered of which
two samples of 50 gram each were taken.
(iii) From the handbag carried by Sk. Safique 3 packets were
found. From the first packet 3.600 Kg, from the second packet
3.350 Kg and from the third packet 1.800 Kg making a total of
8.750 Kg Ganja was recovered. From this ganja, three samples
of 50 gram each were also taken.
(g) All the Ganja, the luggage and also the bus fare tickets were
seized by the de facto complainant and the blocks of ganja
weighed. The accused persons could not produce any valid
documents explaining how they were carrying the seized items.
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(h) Thereafter, the OC registered a case with Chopra P.S. and the
investigation was entrusted to the IO who sent the samples to
FSL for chemical examination. After completion of the
investigation, a charge sheet was submitted under Section 20(b)
of the NDPS Act against all the three accused. The appellants
pleaded not guilty.
3. In the course of the trial, the prosecution examined as many as eight
witnesses. The accused persons were examined under Section 313 of
the Code of Criminal Procedure but they declined to cite any witness on
their behalf and submitted that the entire evidence of the witnesses
was false. In conclusion of the trial, by a judgment and order dated
08.12.2015 the Trial Judge convicted and sentenced the appellants.
4. Hence the present appeal.
5. Learned counsel appearing for the appellants strenuously contended
that the First Information Report was registered prior to seizure and
arrest of the appellants which is not sanctioned by law. He submitted
that the seizure list appearing at page 3 goes to show that the seizure
was conducted with reference to GDE No.896/2005 dated 19.12.2005
and the time that was mentioned in the First Information Report was
19:45 hours till 21:15 hours. At page 7 of the paper book there is a
reference to Chopra P.S. Case no.186/2005 dated 19.12.2005. Thus, it
was submitted that there were inconsistencies and contradictions
which proved that the First Information Report had been registered
prior to the seizure and arrest of the appellants. It was also submitted
on behalf of the appellants that interestingly enough neither the driver
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of the bus nor the conductor was examined and no tickets were proved
in the course of the trial. This is a serious infirmity in the case of the
prosecution. He further contended that the reference to the bus
number in the First Information Report and the charges framed were at
variance. In fact, the charges framed by the Learned Court makes
reference to NBSTC Bus No.WB-23/2819 whereas the FIR refers to bus
No.WB-63/2819. He further contended that though the secret source
information was recorded in the diary as GDE No.894/2005 but
interestingly enough the said GDE was not produced before the
Learned Court. On the contrary, from the seizure list, it appeared that
there was a reference to Chopra P.S. case No.186/2005 dated
19.12.2005. He further submitted that there was no weighment done
by PW-5 which goes to the root of the case of the prosecution and
proves that the seizure was doubtful. He further submitted that no
proper identification of the appellants had taken place. Lastly, it was
contended on behalf the appellants that the depositions of a number of
the witnesses and their versions contained several contradictions and
inconsistencies. As a result, according to the appellants, the
prosecution had failed to prove its case and the impugned order was
liable to be set aside.
6. On the other hand, learned counsel appearing on behalf of the
respondent/State supported the judgment of the Trial Court and the
legality of the conviction. He argued that the search and seizure were conducted after following all the mandatory pre-conditions under the NDPS Act and there was no challenge to the same. He further 6 submitted that all the mandatory compliances under the said Act had been fully complied with and strictly adhered to in the instant case. He submitted that there was no infirmity in the case of the prosecution and there was no dispute in respect of the identification of the appellants. He further submitted that there was no falsity or infirmity in the case of the prosecution. He further submitted that the FIR number was not in the seizure list but reference had been made to the earlier GD number and there was no inconsistency in that behalf. In the facts and circumstances aforesaid, it was submitted on behalf of the State that the Trial Judge had justifiably and correctly held the appellants guilty under Section 20(b) of the NDPS Act and awarded appropriate sentences to the appellants.
7. Before addressing the rival contentions of the parties it is relevant to appreciate the evidence of the witnesses in the proceeding.
PW-1 (Shibnath Pal) was posted as Sub-Inspector attached to Chopra P.S. He categorically stated that on 19.12.2005 at approximately 4.30 pm he received information that three persons were carrying ganja in two suitcases and one bag and that they all had boarded the NBSTC bus from Alipurduar to Kolkata bearing no.WB-63/2819. The information was recorded in GD bearing no.894 dated 19.12.2005. He thereafter, informed the OC Chopra Police Station about the matter and also informed the CI Islampur and SDPO Islampur. Subsequently, as per the direction of the OC Chopra P.S. he along with constable Hari Prasad Upadhyaya, Kuldeep Das H.G. Sadhu Charan Das and others had gone to 7 Sonarpur bus checkpoint and at about 7.25 pm, the particular bus had come to the checkpoint. He thereafter got into the bus and on checking he found three persons sitting on seat nos.27, 28 and 29 respectively with two suitcases and one bag. On asking, them they disclosed their names being Pintu Mondal, Md Sintu and Sk Safique respectively of village Mahadevpur, P.S. Pandua, Dist-Hooghly. Upon disclosing the information received they were asked to open their suitcases and the bag but they declined to do so. Thereafter, the appellants were brought down from the bus and taken to the checkpoint. By that point of time CI Islampur, Gurupada Chatterjee had arrived at that spot. The appellants were thereafter given an option of being searched in presence of the Executive Magistrate but they agreed to be searched in the presence of the Gazetted Officer i.e. CI Islampur. Thereafter, two local persons namely Dulal Das and Nikhil Das of village Adraguri were identified and they were asked to be witnesses to the seizure. Thereafter, one green colour VIP Alfa suitcase was searched which was carried by Pintu and 15 Kgs 100 grams of ganja contained in polythene of yellow colour and wrapped with English newspaper Telegraph was recovered and two samples of 50 grams each were obtained from the goods. Subsequently, a brown colour marble suitcase carried by Md Sintu was searched and 15 Kgs 100 grams ganja wrapped with Bengali newspaper Dainik Yuba Sankhya was recovered and from that ganja two samples of 50 grams each were obtained. Thereafter, one black colour handbag bearing the mark 'Adidas' carried by Sk Safique was searched and 3 8 blocks of ganja one weighing 3 Kgs 600 grams, another weighing 3 Kgs 350 grams and third one weighing 1 Kg 800 grams wrapped with English newspaper "Telegraph" were recovered and three samples each of 50 grams was obtained from the said three blocks. The ganja was weighed with the help of the witnesses. Both the suitcases were covered. Thereafter, in the presence of the witnesses and as per the direction of the Gazetted Officer all the articles were seized and a seizure list was prepared by this witness. The witness identified the said seizure list. Thereafter, the said bus log sheet and the driving licence of the driver was also seized and a seizure list was prepared. There was a carbon copy of seizure list prepared through mechanical process which is marked Exhibit.2 which was also identified by this witness. The seized articles were then given on jimma to the driver by preparing jimmanama which was prepared through mechanical process marked as Exhibit.3. This witness stated that the accused persons could not produce any valid documents justifying of carrying of any of the seized substances. The accused persons were thereafter arrested and brought to Chopra P.S. with the seized articles. Thereafter, this witness deposed that he submitted a written complaint to OC Chopra P.S. The written complaint was signed by this witness and was marked Exhibit.4. The witness identified the two suitcases and the handbag. In cross-examination, this witness deposed that the accused persons were not previously known to him. He further stated that he sent a message to CI Islampur and SDPO Islampur for arranging the 9 presence of the Executive Magistrate if available at the spot. He further deposed that he had taken the measurement of each suitcase and put a label inside the suitcases. He had also seized the tickets of the accused persons who were travelling in the said bus, however, the said bus tickets could not be found in the Court. He stated that he could not give the exact details as to how many passengers were in the said bus besides the three passengers. He further stated that he did not obtain any signature of the co- passengers. He stated that the bus checkpoint was very near to village Adraguri. He stated that it was not a fact that no label had been prepared in respect of the seized articles. He further deposed that it was not a fact that the accused persons were not carrying any suitcases containing ganja.
PW-2 (Sadhu Charan Das) is the Home Guard who was attached to Chopra P.S on 19.12.2005. He deposed that he was on duty on 19.12.2005 along with Sub-Inspector Shibnath Paul and three constables who had accompanied him to Sonarpur Check Post. He stated that he came across a bus bearing no.WB-63/2819. He stated that it was a State bus. He deposed that CI, Islampur came to the site and he had gone into the bus along with SI Shibnath Paul to conduct the search. He stated that during the search two suitcases and one black bag had been found in the bus. He stated that the bag and suitcases were brought down opened and there was ganja found in it. He stated that the seizure list was prepared in front of him. This witness also identified the appellants. In cross- 10 examination, this witness stated that a police jeep came to the place of occurrence for a routine check-up. He could not recollect the jeep number. He stated that approximately 30 or 35 vehicles were checked on that date. He could recollect the bus number being WB- 63/2819. He stated that it was a State Bus of red colour. He stated that the bus was intercepted at around 7/8 pm. He denied that he was not part of the raiding party. He denied that he had not seized the ganja from the accused persons.
PW-3 (Dilip Lama) was posted as a constable with Chopra PS on 19 December, 2005. He had visited the place of occurrence. He deposed that they were three constables, one home guard and one police officer. He stated that during the check he found two suitcases and one black bag with the three appellants. He stated that upon opening both the suitcases and the black bag he had noticed that there was ganja. He identified the appellants who were present in Court. In cross-examination, he stated that he had gone in a jeep to the place of occurrence. He had stated that after completion of his duty he had returned to Chopra PS. He stated that his duty at the Sonarpur Check post was from 4.30 pm to till 11 pm. He stated that he could not remember the seat numbers of the bus in which the appellants were sitting.
PW-4 (Dulal Das). He is an independent witness and was present at the place of occurrence. He is a tea stall owner within the jurisdiction of Chopra P.S. He stated that on 19.12.2005 he was at his tea stall when the incident occurred. He stated that at 7.30 pm 11 the police officers were engaged at the bus check post. He was called along with one other person Nikhil Das. He stated that other people were also present and he saw the police officer enter the bus and when they got down from the bus three suitcases were brought down along with three people. He stated that he saw the ganja inside the suitcases. He stated that weighment was done before him. He stated that he could not recollect the exact weight. He stated that the seizure list was prepared in front of him and he was asked to give his signature on the seizure list. He identified his signature which was marked Exhibitt.1/1. He stated that the accused persons were taken into the police custody. In cross-examination, he stated that it was not a fact that the appellants did not speak in front of him.
PW-5 (Nikhil Das). He is another independent witness. He had a crockery shop at Sonarpur Check Post which falls within the jurisdiction of Chopra PS. He was present at his grocery shop on 19 December, 2005. He saw the police officers were engaged around 7.30 pm at the checkpoint. He was called along with one person namely Dulal Das. He stated that he saw the police officer enter the bus and when they got down three suitcases were brought down along with three people. He identified the accused persons as Pintu, Sentu and Safiqul. He stated that weighment was done in front of him but he could not recollect the exact weight. He stated that the seizure list was prepared in front of him. He identified his signature in the seizure list marked Exhibit.1/2. He stated that the accused 12 persons thereafter were taken to the police station. In cross- examination, he stated that accused persons did not mention their names in front of him.
PW-6 (Kameswar Prasad Das). He was serving as a security guard on 19 December, 2005. He stated that at 7.30 pm he was on duty at Sonarpur Marketing check post and the police officers were engaged in bus checking. He saw the police officer seize ganja and went inside the bus and brought two suitcases. He stated that 3/4 persons were also brought down from the bus. He stated that he saw the suitcases and the persons being taken to the police station. In cross-examination, he stated that he had no document to show that he was serving as a security guard at the relevant point of time. He stated that the suitcases were not opened in front of him. He denied that the appellants were not brought down from the bus along with suitcases and one handbag.
PW-7 (Kuldip Das). He was a constable at Chopra police station on 19 December, 2005. He was on duty along with SI and two other constables and was the Home Guard at Sonarpur Check Post. He deposed that the NBSTC bus bearing no.WB-63/2819 had moved approximately at 7.30 pm. He stated that he saw three persons brought down from the bus and one VIP suitcase and 2/3 bags with them. He further deposed that the accused persons identified themselves in front of him. He deposed that on being asked the accused persons had confessed that they were carrying ganja in the bags. He further deposed that arrest was made in front of him and 13 the seizure list also prepared in front of him. He could not recollect the weight at present but this witness deposed the weighment had taken place in front of him. In cross-examination, he deposed that he could not recollect the colour of the bags. He deposed that there were many shop rooms and tea stalls located at the Sonarpur check post. He deposed that he could not recollect how many witnesses were present and in whose presence the bags were seized. He deposed that the Investigating Officer had examined him. He denied that no raiding party was present on the relevant day at the Sonapur check post. He denied that no police officer entered the bus and seized the articles. He denied that the accused persons did not possess ganja at the relevant point of time.
PW-8 (Manik Ch. Mandal). He was posted as Sub-Inspector of police with the Chopra Police Station on 19 December, 2005. He received the case for investigation from the OC Chopra Police Station. He identified the formal FIR which had been filed and was marked as Exhibit 6. He deposed that SI Shibnath Pal, the de facto complainant, of this case had filed a written complaint at Chopra Police Station and on that basis the formal FIR had been drawn up. He identified the endorsement made in the FIR. He had received the seized alamat which was two suitcases and one bag full of ganja. He identified all the accused persons and deposed that they had been investigated in front of him. He prepared a statement of all three accused persons under Section 161 of the Cr.P.C. He examined all the witnesses. He prepared a rough sketch map with index of the 14 place of occurrence which is marked Exhibit 7. He examined the local witnesses and recorded their statement under Section 161 Cr.P.C. He made the arrangement for sending the sample of ganja to the FSL through the Learned ACJM, Islampur. He also collected the report from the FSL in his official capacity. He identified the FSL report which was marked Exhibit 8. He had submitted the charge sheet in the instant case. He identified all the three accused persons. He identified two suitcases and the black bag which was shown to him and marked Exhibits I & II respectively. In cross- examination, he identified the independent witnesses namely Dulal Das, Nikhil Das and Rameswar Prasad. He stated that he recorded their statements under Section 161 Cr.P.C. He deposed that the relevant check post is still existing. He identified the check post next to the place of occurrence. He further deposed that a mark of identification had been placed in the suitcases but these were not available as of now.
8. In Karanil Singh vs State of Haryana (2009) 8 SCC 539 at paragraphs 3, 4 and 6 it was held as follows:
3. The Statement of Objects and Reasons of the NDPS Act makes it clear that to make the scheme of penalties sufficiently deterrent to meet the challenge of well-organised gangs of smugglers, and to provide the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences with regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national Governments, this comprehensive law was enacted by Parliament enabling exercise of control over psychotropic substances in India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded, considering and amending the then existing laws relating to narcotic drugs, strengthening the 15 existing control over drug abuse, considerably enhancing the penalties, particularly for trafficking offences, making provisions for exercising effective control over psychotropic substances and making provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party.
4. Let us consider the scheme of the NDPS Act and its relevant provisions. The 1985 Act came into force on 14-11-
1985. Certain provisions were subsequently amended in 1989 and in 2001. Chapter IV deals with offences and penalties whereas Chapter V deals with procedure. Section 41 relates to power to issue warrant and authorisation.
6. The NDPS Act prescribes stringent punishment. Hence, a balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizens from oppression and injustice on the other. This would mean that a balance must be struck in. The provisions contained in Chapter V, intended for providing certain checks on exercise of powers of the authority concerned, are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. The statute mandates that the prosecution must prove compliance with the said provisions.
9. In Noor Aga Vs. State of Punjab (2008) 16 SCC 417 it was held as follows:
"58.......An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."16
10. In Mohan Lal Vs. The State of Punjab 2018 SCC OnLine SC 974 at para 14 it was held as follows:
"14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair."
11. Following the principles stated in the three decisions, I am of the opinion that the evidence of the witnesses including the independent witnesses inspires confidence and is found to be trustworthy and reliable. The evidence of the witnesses including the independent witnesses duly corroborate each other both in respect of the matter of seizure and the procedure adopted for the seizure. Significantly, there was no challenge whatsoever either before the Trial Court or before us of the mandatory requirements of the said Act not having been complied with. There was not even a suggestion made to any of the prosecution witnesses during cross-examination. The chemical examination report also supported the case of the prosecution. Clearly, the stringent procedural safeguards under the said Act had been strictly followed and applied. The evidence of the witnesses was fully corroborated and there was no challenge either in the cross- examination or otherwise to the stringent facts and procedure that had been followed during the investigation. There is an element of truthfulness and trustworthiness in the evidence of the witnesses which has a ring of truth.
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12. An argument in desperation was made in respect of nothing more than a minor inconsistency and variance in the evidence of the witnesses in so far the colour of the handbag and the suitcases were concerned. It is trite law that minor contradictions and omissions in the evidence of the witnesses are to be ignored if there is a ring of truth in their deposition (Prabhu Dayal Vs. State of Rajasthan (2018) 8 SCC 127 at paras 18 to 21). The next contention on behalf of the appellants that the First Information Report was registered prior to seizure and arrest of the appellants is equally unfounded and fallacious. The reference to the GDE No.896 of 2005 is to the earlier General Diary which is not mandated in law and there is no substance in the submission of the appellants that the FIR was registered prior to seizure and arrest of the appellants. In any event, this issue was never raised by the defence at the time of cross-examination. The oral evidence particularly of the search and seizure at the place and time of occurrence supported by the independent evidence more particularly of PW-4 and PW-5 washes away any supposed error on the part of the Investigating Agency.
13. Similarly, there is no force in the submission that neither the driver nor the conductor had been examined nor the bus tickets were produced in the evidence. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence of the prosecution is cogent, credible and trustworthy. There is sufficient evidence duly corroborated by all the witnesses which conclusively proves that the appellants were guilty of the offence with which they 18 had been charged and the strict procedure as contemplated in the NDPS Act had been strictly adhered to in the case. The appellants have failed to demonstrate any kind of prejudice especially under the said Act which carries a reverse burden of proof. There is nothing to demonstrate that there was any element of unfairness towards the appellants in the manner in which the investigations or the trial was conducted by the prosecution. Accordingly, I find no merit in these arguments on behalf of the appellant. Merely because the driver or the conductor had not been examined nor were the tickets adduced in evidence cannot be a ground for doubting the prosecution case if the evidence relied on by the prosecution and the witnesses adduced by the prosecution are otherwise found to be credible as it is in this case.
14. The submissions in respect of there being a variance in the bus number as it appears in the charge sheet and the FIR is equally meritless and of no substance. It is evident that this is a hopeless attempt to obtain an advantage of a mere typographical error. The evidence of all the witnesses and the exhibits prove beyond reasonable doubt that there is no confusion in respect of the bus number in which the appellants were travelling.
15. In conclusion, the prosecution has succeeded in establishing their case against all the appellants beyond reasonable doubt.
16. In the above facts and circumstances and for the foregoing reasons I concur with the findings of the Trial Court and uphold the conviction 19 and sentence imposed on the appellants. Accordingly, the appeal shall stand dismissed.
17. A copy of the judgment along with the Lower Court Records be sent back to the Court below at once and a certified copy of this order, if applied for, may be given to the parties on a priority basis upon compliance with necessary formalities.
I agree.
(Joymalya Bagchi, J.) (Ravi Krishan Kapur, J.)