Calcutta High Court
Kanhailal Chowhan vs State Of West Bengal on 5 December, 1994
Equivalent citations: 1995CRILJ3283
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. This criminal appeal is directed against the orders of conviction and sentence passed by the learned Sessions Judge, Howrah in Sessions Trial No. XXXVII(7)/91. The learned Sessions Judge by his impugned orders convicted the appellant/accused under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to rigorous imprisonment for 12 years and also to a fine of Rs. 1 lakh, in default, to R.I. for two years more. The prosecution case in short is that on receipt of secret information about clandestine deal in hereoin, a narcotic drug, a police party headed by S.I. Anup Kr. Ghosh of Narcotic Cell, C.I.D., West Bengal, Bhabani Bhawan went to the house of the appellant accused at 23, Netai Charan Dutta Lane under P.S. Howrah in the afternoon of 19th December, 1989 and there recovered and seized 20 small paper packets containing suspected heroin from a Complan couta (container) produced by the appellant himself from his room. The learned trial Judge after considering the evidence held the appellant guilty of the charge framed against him under Section 21 of the N.D.P.S. Act and convicted him accordingly and also sentenced him as mentioned above. Being aggrieved by the conviction and sentence the appellant has preferred the present appeal.
2. The prosecution case is projected in his evidence by P.W. 9 S.I. Anup Kr. Ghosh who made the search, seizure and arrest of the accused and also investigated the case. He is also the de facto complainant of the case. He says that on 19th December, 1989 he attended his office at about 11 a.m. and informed the officers and constables available in the office, about the probability of holding a raid that day. He also informed the Inspector, Sri Chandra Sekher Mukherjee, who was his superior officer about the probability of holding a raid on that date depending upon the arrival of source informer. He next says that at about 1 p.m. on that date the source informer came to him in his office and he had talks with him and thereafter on his proposal to the Inspector Chandra Sekher Mukherjee, the latter approved holding of raid on that date. It is to be stated that the Inspector Shri Chandra Sekher Mukherjee is a Gazetted Officer. According to the evidence of S.I. Sri Anup Kr. Ghosh he along with A.S.I. Binoy Ghatak (P.W. 3), A.S.I. Sankar Ganguly, Watcher Constable Debobrata Dutta (P.W. 5), Watcher Constable Ardhendu Bhatlacharya (P.W. 8) and others started from office in a police vehicle for Howrah along with the source informer and after reaching the locality the vehicle was parked and the source informer proceeded and identified the premises No. 23, Netai Charan Dutta Lane to him. It is the evidence of Shri Anup Kr. Ghosh that before leaving the office he had source information that one Kanaia of 23, Netai Charan Dutta Lane, Howrah was dealing in heroin and he would be available at the said premises in the afternoon. His further evidence is that after making placement of the police men on different points around the said premises while he was about to enter the said premises he found two persons coming out therefrom and he requested them after disclosing his identity, to witness the search which he was going to conduct there. He says that after entering the premises he shouted for Kanaia and one person with left arm bandaged came out in response to his call and he disclosed his identity and on his enquiry the said person disclosed his name as Kanaia alias Kanailal Chowhan alias Mahabir who is the accused appellant. His further evidence is that at first the accused denied having any quantity of heroin in his possession, to query, but when he disclosed to him (the accused) that in view of their information about his dealing in heroin, they would search his room in the presence of Gazetted Officer, the accused produced one Complan Couta from his room and from that Complan Couta he produced one Cellophane Paper packet containing 20 small paper packets containing suspected heroin. He further says that the accused however, despite their offer, refused to be searched in presence of any Gazetted Officer. He also says how he made the seizure and prepared sample packet and arrested the accused and produced him at the Howrah P.S. and lodged F.I.R. at the P.S. and during the investigation sent the sample packet and seized purias to the Director of drugs Laboratory. In his cross-examination he says that on 18th December, 1989 he got information that some source informer would come to him on 19th December, 1989 and would inform about availability of heroin with some person. It is suggested to him in cross-examination that he arrested the accused on the night between 18th December, 1989 and 19th December, 1989 which suggestion is however denied by him. P.W. 4 is an A.S.I. of Police who at the relevant time was attached to the Howrah P.S. and who drew up the formal F.I.R. being Ext. 7, Debobrata Dutta is the watcher constable who was present at the time of search. He also says that the accused was offered to be searched in presence of a Gazetted Officer but out of fear the accused produced the Complan Couta. P.W. 7 Chandra Sekher Mukherjee was the officer-in-charge, Narcotic Cell, C.I.D., West Bengal, Bhabani Bhawan at the relevant time. He was however not present at the time of seizure. He says that on 19th December, 1989 at 10.30 a.m. S.I. Anup Kr. Ghosh came to him and reported that he had received a source information regarding availability of heroin in Howrah town and accordingly he made a team of police party including S.I. Anup Kr. Ghosh, A.S.I. Binoy Ghatak and others and direct him to hold the raid as per source information at about 1 p.m. on that date. He further says that at about 7 p.m. he received telephonic message from Anup Kr. Ghosh to the effect that in course of raid he could apprehend one person along with some heroin and he had get a case under the Narcotic Act registered at the Howrah P.S. and also disclosed the name of the accused as Kanailal. P.W. 6 Dr. N.N. Chakroborty got the contents of the sealed packet chemically examined under his direct supervision and prepared the report of the analysis of the samples. The samples were found to contain heroin.
3. P.W. 1 Dilip Ghosh and P.W. 2 Susen Sarkar are both residents of 23, Netai Charan Dutta Lane and are seizure list witnesses but both of them were declared hostile by the prosecution. P.w. 1 Dilip Ghosh says in his evidence that one day police from Bhabani Bhawan, Alipore held a raid at premises No. 23, Netai Charan Dutta Lane and took him and one Susen Sarkar (P.W. 2) from the aforesaid premises to Howrah P.S. and after showing some powder said to be heroin obtained their signatures on some papers disclosing to them that the said powder was heroin recovered from the residence of Kanailal (accused). He further says that he did not see the accused on their arrival at Howrah P.S. on that date and that they were taken to Howrah P.S. in the afternoon but in the previous night, in course of raid the accused was arrested from premises No. 23. Netai Charan Dutta Lane and was taken to the police station by the police. He however next says that after their arrival in the afternoon on that date they saw the accused within the Howrah P.S. premises. Since the evidence of this witness did not corroborate the prosecution case in material respects he was declared hostile. His evidence, whatever may be its worth, indicates that the search or arrest of the accused did not take place in his presence and that the accused was arrested in the previous night which would be the night between 18th and 19th of December, 1989. In his cross-examination on behalf of the defence he says that he did not see when the accused was taken under arrest by the police in the night and that on the monring following the night of arrest he learnt from the wife of the accused that the accused was taken under arrest by police to the P.S. from 23, Netai Charan Dutta Lane. He also says that he put all his signatures at Howrah Police Station in the afternoon following the night of arrest of the accused. P.W. 2 Susen Sarkar as I have already stated, was also declared hostile by the prosecution. He says that on the date mentioned under his signature in the seizure list, obviously meaning 19th December, 1989 during noon time he and P.W. 1 Dilip Ghosh were taken by police of Bhabani Bhawan to Howrah P.S. and on the morning of that date, he learnt that on the previous night there was a raid by police at 23, Netai Charan Dutta Lane. His evidence also thus indicates that the appellant was taken into custody by the police in the night between the 18th and 19th December, 1989 and if that be so, the prosecution case that the accused was arrested in the afternoon of the 19th December, 1989 after search and seizure in presence of witnesses at premises No. 23, Netai Charan Dutta Lane stands demolished. However, since both the witnesses were declared hostile by the prosecution we will have to be cautious in assessing the evidentiary value of these hostile witnesses. But we find that in his cross-examination P.W. 3 A.s.I. Binoy Ghatak unequivocally lends support to the evidence of these two hostile witnesses that the accused was arrested and taken into custody in the night between 18th December, 1989 and 19th December, 1989. In his cross-examination P.W. 3 A.S.I. Binoy Ghatak who is himself a police witness clearly says that 'it is true that the accused Kanailal was arrested on the night between 18th December, 1989 and 19th December, 1989'. This police witness of the rank of an Assistant Sub-Inspector himself thus corroborates the evidence of the hostile witnesses that the accused was actually taken into custody by the police in the night between 18th December, 1989 and 19th December, 1989. If that be so, the prosecution case that the search, seizure and arrest of the accused were all made in the afternoon of the 19th December, 1989 stands demolished and the very foundation of the prosecution case suffers a big crack threby rendering it difficult to hold that the prosecution have been able to establish their case beyond reasonable doubt regarding recovery of heroin from the possession of the accused at the stated date, time and place. At any rate there arises a doubt, undoubtedly a reasonable doubt about the factual respect of the case, the benefit of which has to go in favour of the appellant accused.
4. As regards the statement of P.W. 3 that the accused was arrested in the night between 18th and 19th December, 1989 the learned trial Judge has in his judgment opined that the same is clearly a mistake, specially in view of the preponderance of evidence on record to justify holding of raid at 23, Netai Charan Dutta Lane in the afternoon of 19th December. 1989 and the arrest of the accused consequent upon such raid. On consideration of the evidence on record, I however find it difficult to dismiss the concerned statement of the P.W. 3 in corss-examination as a simple mistake. As we have seen. P.W. 3 who himself is a police witness, is not the first witness to tell that the accused was taken into custody from 23, Netai Charan Dutta Lane in the night of the 18th/19th December, 1989 so that it can be thought that taking clue from the mistaken statement of P.W. 3 the defence have built up a fishing case that the appellant accused was taken into custody in the night of the 18th/19th December, 1989. As we have seen, as a matter of fact both the hostile witnesses have stated earlier, when the police witness P.W. 3 was yet to be examined, that the appellant accused was taken into custody in the night of the 18th/19th December, 1989. We have also seen that the P.W. 3 is not a layman nor an employee of the level of constable. He is an Assistant Sub-Inspector of Police and his unequivocal statement in cross-examination is that the accused was arrested in the night "between 18th December. 1989 and 19th December. 1989". Where is the scope of mistake? Why and how could it be a mistake? We find it difficult to dismiss such a clear and plain statement as a mere mistake and rather find that it lends corroboration to the evidence of the hostile witnesses examined earlier on the particular aspect of the case. On the factual aspect the accused is therefore clearly entitled at least to benefit of doubt.
5. As regards the legal aspect of the matter the learned Advocate for the petitioner heavily relied upon the decision of the Supreme Court in State of Punjab v. Balbir Singh, . In that decision the Supreme Court had to consider the different provisions of law. such as. Sections 41, 42, 43, 50, 51, 57, etc. of the NDPS Act and the provisions of Sections 4, 100 and 165.' Cr.P.C, etc. The Supreme Court after elaborate consideration has held that the provisions of Section 50 of the NDPS Act are madatory and non-compliance of the same (in a case where it is attracted) would affect the prosecution case and vitiate the trial. Section 50 of the NDPS Act, provides inter alia that if the person to be searched by any officer duly authorised under Section 42. so requires, such person shall be taken before the nearest Gazetted Officer of any of the concerned departments mentioned in Section 42 or to the nearest Magistrate and in that case such search of the person may be made only before such Gazetted Officer or Magistrate. The Supreme Court in the said decision in State of Punjab v. Balbir Singh (supra) has interpreted Section 50 of the N.D.P.S. Act to the effect inter alia that it is obligatory on the part of the officer concerned to inform the person to be searched that if he so requires he shall be produced before a Gazetted Officer or Magistrate as provided in Section 50 and it is obligatory on the part of such Officer to so inform the person to be searched' and failure to inform the person to be searched and if such person so requires failure to take him to the Gazetted Officer or the Magistrate would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution ease and vitiate the trial. It is argued by the learned Advocate for the appellant that in this case the accused was not informed before search that if he so required he would be taken before a Gazetted Officer of concerned department or before Magistrate. This argument is however not tenable because, as we have seen from the evidence, the accused was offered to be searched in presence of Gazetted Officer but he declined to accept the offer and rather himself produced the incriminating materials from his room. Therefore, if the prosecution evidence is accepted at face value, there has been substantial compliance of the provisions of Section 50. Again it has to be noticed that the question of compliance or non-compliance of Section 50. NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of person is involved. Search of and recovery from any building, house, room, conveyance or place does not come within the ambit of Section 50, because firstly Section 50 expressly speaks of search. of person only, secondly the section speaks of taking of the person to be searched to the Gazetted Officer or Magistrate for the purpose of search and it is physically impossible to shift or carry any building, room or immovable place from its position and take it to a Gazetted Officer or Magistrate for such purpose and thirdly the Supreme Court in interpreting Section 50, NDPS Act also speaks of search of person only in paragraph 26(5) of the decision in State of Punjab v. Balbir Singh (1994 Cri LJ 3702) (SC) (supra).
6. We would however look into another aspect of the matter relating to Section 42 of the N.D.P.S. Act. the said Section 42 runs thus:
Section 42. Power of entry, search, seizure an arrest without warrant or authorisation-
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the department of Central Excise, Narcoite, Revenue intelligence or any other department of the Central Government or the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a Slate Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any Narcotic Drug or Psyehotropic Substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,-
(a) enter into and search in such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe any furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he, thinks proper, arrest and person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such oficer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence for facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior."
(Emphasis supplied).
We thus find that Section 42 inter alia provides that where the concerned officer proceeds to make any search in any building, conveyance or enclosed place for any of the purposes mentioned in Section 42 on the basis of any information given by any person such officer has to take down such informtion in writing before making search. The Supreme Court in the said decision in State of Punjab v. Balbir Singh (1994 Cri LJ 3702) (supra) had to consider the effect of non-compliance of certain statutory provisions contained in the N.D.P.S. Act. In this connection the following observations of the Supreme Court made in paragraph 16 (ibid) are relevant for our present purpose :
"The very fact that Sub-section (2) of Section 42 requires that where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior, itself is a strong indication of the mandate that the officer should record his reasons for his belief as required under the proviso and also that the information received should be reduced to writing so that it can be verified whether there were sufficient reasons for belief. ***** ***** ***** ***** ***** The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions made it obligatory that such of those officers mentioned therein, on receiving an information, should reduse the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently, (he failure to comply with these requirements thus afffects the prosecution case and therefore vitiates the trial."
Again in paragraph 26(2C) of the said decision State of Punjab v. Balbir Singh (supra), the Supreme Court observed thus :
"(2C) Under Section 42(1) the empowered officer if he has a prior information given by any person, that should necessarily be taken down in writing *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** *** But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise he must record the grounds of his beliefs. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial."
(Emphasis supplied).
The prosecution case if accepted at its face value, however, does not attract the proviso to section 42(1) of the N.D.P.S. Act, as the search was allegedly made during daytime, but the substantive part of Section 42(1) is undoubtedly attracted inasmuch as the raid was made on the basis of source information as stated by the P.W. 4 S.I. Anup Kr. Ghosh who was in command of the raiding party. Since the raid for search in the concerned premises was made on the basis of source information such information was required to be taken down in writing under Section 42(1). Neither the witnesses in the case say that such information was taken down in writing nor has anything been produced by way of evidence to show that such information was in fact taken down in writing. The necessary conclusion therefore is that such information was not taken down in writing and that being so this constitutes non-compliance of a mandatory provision of Section 42(1) which according to the aforesaid Supreme court decision in State of Punjab v. Balbir Singh (1994 Cri LJ 3702), affects the prosecution case and vitiates the trial. On that ground also therefore the conviction and sentence awarded in a vitiated trial cannot be sustained. Accordingly, on point of law also the appeal has to succeed. The appeal is therefore allowed and the impugned conviction and sentence are hereby set aside and the appellant accused stand acquitted. He be released forthwith from detention unless his detention is lawfully required in connection with any other matter.
Vidyanand, J.
7. I Agree.