Calcutta High Court (Appellete Side)
Binoy Krishna Dey & Anr vs The State Of West Bengal on 7 February, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble JUSTICE JOYMALYA BAGCHI
And
The Hon'ble JUSTICE SUVRA GHOSH
CRA 81 of 2015
Binoy Krishna Dey & Anr.
- VERSUS -
The State of West Bengal
For the Appellants: Mr. Tarun Jyoti Tewari., Adv.,
For the Ld. Addl. Public Prosecutor: Mr. Arun Kumar Maity, Adv.
For the State: Mr. Sanjay Bardhan, Adv.,
Heard on: 14.01.2020
Date: 07.02.2020
SUVRA GHOSH, J. :-
1.The appeal is directed against judgment and order of conviction and sentence passed by the Learned Judge, Special Court, N.D.P.S Act, Nadia at Krishnanagar on 05-12-2014 whereby the learned trial Court convicted the appellants for commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (in short N.D.P.S. Act) and sentenced them to suffer rigorous imprisonment for a term of 10(ten) years and to pay fine of Rs. 1,00,000/- each, in default to suffer further rigorous imprisonment for one year.
1. On 05-06-2013 at about 22:15 hours Shyam Sundar Ghosh A.S.I of Police, Karimpur Police Station, Nadia along with Constable Jagabandhu Mondal, Home-Guard 154 Asit Ghosh and Police Driver CD/977 Manick Das left for night patrol duty vide G.D. Entry No. 208 in Government vehicle bearing no. WB-52D/9913 within the police area and in course of such duty on the State highway, saw a lorry stopping by the side of the highway about 500 meters away from Bajitpur culvert at about 00:15 hours on 06-06-2013. By the light of their vehicle, they saw two persons fleeing away towards the field into darkness and upon suspicion they approached the lorry but found no person inside the cabin or at the rear end of the lorry though the ignition key was in place. The team found six plastic bags in the rear portion of the vehicle smelling of ganja and on physical verification of one of the bags, confirmed presence of ganja therein. The persons fleeing away may have been the owner and the driver of the vehicle. The matter was reported to the Officer-in-charge, Karimpur Police Station and Circle Inspector, Karimpur and both of them reached the place of occurrence at 00:45 hours and 1:00 hours respectively. In compliance with the order of C.I. Karimpur, the complainant opened all the six bags and found ganja inside the bags. Each bag was found to weigh 24 kgs and the said articles were seized under proper seizure list. 100 grams of sample was taken from each bag and the lorry along with seized articles were taken to the Police Station where they were handed over to the Malkhana Officer. No local witness was found at such dead hour of the night.
2. Complaint was lodged before the Police Station by A.S.I Shyam Sundar Ghosh on the basis of which Karimpur P.S. Case No. 84 of 2013, dated 06- 06-2013 u/s 20(b)(C) of the N.D.P.S. Act, 1985 was registered. After conclusion of investigation, charge sheet was submitted against the appellants u/s 20(b)(C) of the N.D.P.S. Act. Charge was framed against the appellants u/s 20(c) of the N.D.P.S. Act. Substance of accusation was read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 8 witnesses in support of its case and documents and seized articles were marked as Exhibits. 1 to 9 and Material exhibits I to XII/6 respectively. The defence case, as it appears from the trend of cross examination as well as statement u/s 313 of the Cr.P.C., is a denial of the prosecution case and a plea of innocence.
3. Upon consideration of the entire evidence on record, the learned trial Court convicted the appellants for offence U/s 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (in short N.D.P.S. Act) and sentenced them as aforesaid. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellants have come up before this Court in appeal.
4. Learned advocate appearing on behalf of the appellants submitted that the prosecution case suffers from several lapses and contradictions. Though the alleged contraband was seized from a lorry standing on a National highway, no independent witness was examined or approached during search and seizure. There is serious doubt regarding the sampling and seizure of the contraband and the link between recovery of the articles and labelling and sampling of the same is missing. There is variance in the weight of samples collected from each bag at the place of occurrence and those sent for chemical examination. Though 100 gms of sample appears to have been taken from each bag, the chemical examination report states that the samples weighed 114 gms, 110 gms, 111 gms, 110 gms, 115 gms, and 116 gms respectively. The seized contraband was not properly sealed and mouth of the sacks were found open and without seal when produced in Court. The weighing machine used for weighing the contraband was also not seized.
5. It was further submitted that though the raiding team was armed, no effort was made by them to chase or intercept the two persons who fled away. Both the appellants voluntarily surrendered before the Court. Though PW- 4 S.I Kuntal Mondal reached the place of occurrence subsequently, he appears to have witnessed the entire incident including fleeing of the two persons. According to the learned advocate, the prosecution failed to bring home charge against the appellants beyond the shadow of reasonable doubt and the benefit of doubt tilts in favour of the appellants, warranting their acquittal.
6. Learned advocate on behalf of the State supported the impugned judgment and submitted that no explanation was offered by the appellants as to how the contraband was found in their vehicle and as such, it can be inferred that the appellants were in constructive possession of the contraband. The search and seizure were done in accordance with the procedure laid down under the Act and the chemical report confirmed that the seized articles tested positive for the presence of ganja. The particulars of the seized vehicle sent to the O.C. Karimpur Police Station by the traffic I.I.Q, West Bengal suggest that appellant Sahadev Dutta is the owner of the vehicle. The documents relating to the vehicle as well as the driving licence of appellant Binoy Krishna Dey were seized from appellant Binoy Krishna Dey and the appellant having failed to dispel the fact of such constructive possession of the contraband articles, it can be held that the prosecution has been able to substantiate the charges brought against the appellants and the conviction of the appellants need to be confirmed in dismissing the appeal.
7. In order to determine the role of the petitioners in narcotics trade and their nexus with the recovery of the narcotic substance as alleged, the evidence led by the prosecution witnesses is required to be analysed.
8. PW-1 who is the defacto complainant of the case stated that on the relevant night, i.e., 06-06-2013, six sacks containing 24 kgs of ganja each were seized from the lorry bearing no. WB 51/5803 which was haulted near Bajitpur culvert. The articles were packed, sealed and labelled and taken to the Police Station. He saw two persons fleeing away. PW-2, PW-3, PW-4, PW-5 and PW-7 who are Police personnel have corroborated the statement of PW-1. PW-8 is the Investigating Officer who arranged for chemical examination of the seized contraband and collected the particulars of the seized lorry in which the contraband was found. He conducted the investigation and submitted charge sheet against the appellants.
9. The chemical examination report of the seized contraband indicates that the samples were found to contain ganja. It was rightly pointed out by learned advocate for the appellants that though 100 gms of sample was seized from each of the sacks, the chemical examination report shows slight variance in the weight of the collected samples. In the report, the weight of the collected samples appears to be 114 gms, 110 gms, 111 gms, 110 gms, 115 gms and 116 gms respectively. The seal of the packed samples were found to be intact and identical with the specimen impression of the seal when presented for chemical examination, as per the report. Therefore such difference of weight may be attributed to various negligible factors like difference in readings of the two weighing machines, collection of moisture in the samples or the like and such variance is too negligible to be taken into account.
10. At this juncture, I am tempted to refer to the authority in State v/s. Dilbagh reported in (2004) 13 SCC 99 wherein the Hon'ble Apex Court dealt with presumption in case of variance of weight between sample recovered and sample sent for chemical analysis. The Hon'ble Apex Court observed "where it is proved that what was sent to the Chemical Analyser is the same as what was recovered, minor differences in weight would not vitiate the trial.'' It was further held that as the samples, on being sealed, were sent to the Chemical Analyser and the Chemical Analyser received the sample in sealed condition, it was established that the sample which was seized was what was sent to the Chemical Analyser. The ratio in the reported case is identical to that of the present case where the sealed and packed samples of ganja were sent to the Chemical Analyser and the seal of the samples were found to be intact and identical with the specimen impression of the seal when presented for chemical examination. Therefore, minor differences in weight of the samples shall not vitiate the trial.
11. It is a fact that no independent witness was called upon during seizure of the contraband articles. But it should be borne in mind that the seizure took place in the dead hours of the night on the highway where vehicles ply at enormous speed and one cannot expect a pedestrian to loiter around. The sketch map of the place of occurrence does not indicate any shop or residence in or around the area and shops, if any, are expected to remain shut at such wee hours of the night. The vivid picture of seizure, sampling and labelling of the seized articles were found in the evidence of record and such seizure is not subject to the slightest doubt. Mere non-seizure of the weighing machine cannot be a ground for drawing up an adverse presumption against the prosecution case.
12. Reliance is placed by the appellants on the authority in Krishan Chand v/s. State of Himachal Pradesh reported in (2018) 1 SCC 222 wherein the Hon'ble Apex Court dealt with examination of independent witnesses to corroborate the testimony of official witnesses and presence of material contradictions in the statements of such official witnesses.
13. True, evidence of official witnesses requires careful scrutiny before conviction of an accused is based on such evidence. In the present case, no independent witness was available at the place of occurrence during search and seizure and the evidence of official witnesses does not suffer from such material contradictions as would make the prosecution case so doubtful and unbelievable as to grant an order of acquittal in favour of the appellants on this count. Hence, the facts and circumstances in the present case can be distinguished from that of the reported case.
14. Reliance may be placed on the authority in Surinder Kumar v/s. State of Punjab in 2020 (1) Supreme 30 wherein the Hon'ble Supreme Court held that "the mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed." In the same vein, it was observed in the case of State Government of NCT of Delhi v/s. Sunil in (2001) 1 SCC 652 that "It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the legislature." The same principle has been enunciated in Jamail Singh v/s. State of Punjab in (2011) 3 SCC 521. Therefore, the entire prosecution case cannot be discarded merely on the ground that no independent witness was examined during search and seizure.
15. With regard to conscious possession of the seized contraband by appellant Sahadev Dutta, it is the admitted position that the vehicle containing contraband was owned by Sahadev Dutta at the relevant time. The certificate of fitness, insurance certificate and goods carriage permit of the vehicle refer to Sahadev Dutta as the owner of the vehicle. Section 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 speaks about presumption of commission of offence by the accused unless the contrary is proved. To elaborate, when the prosecution proves connection, control or possession of the accused with narcotic substance, the onus shifts on the accused to account for such possession or control or substantiate that such possession was not within his knowledge. As stated in Mohan Lal v/s. State of Rajasthan in 2015 SAR (Criminal) 770, "Term "possession" could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even with exercise of dominion or control as a result of concealment- Mental intent and animus is the primary and significant element to show and establish possession- Personal knowledge as to the existence of the illegal substance at a particular location or site at a relevant time and the intention based upon knowledge- Would constitute the unique relationship and manifest possession- In such a situation presence and existence of possession could be justified, since the intention is to exercise right over the substance and to act as the owner to the exclusion of all others."
16. In the case in hand, the documents relating to the vehicle including the driving licence of the appellant Binoy Krishna Dey were seized in course of investigation wherefrom it appears that appellant Sahadev Dutta was the owner of the vehicle at the relevant time. No explanation has been offered by this appellant/owner as to under what circumstances the contraband was found in his vehicle and his vehicle was found on the highway at the material point of time. Even during his examination u/s 313 of the Cr.P.C., the owner/ appellant made no endeavour to rebut the said presumption u/s 54 of the Act of 1985 against him, nor did he offer any explanation to the circumstances which transpired against him in evidence. Such conduct of the owner leads to the inference that he was in constructive possession of the contraband despite not being found in the vehicle when the vehicle was intercepted.
17. Several authorities have been relied upon by the appellants to impress upon the Court that the owner Sahadev Dutta had no knowledge or exclusive control with regard to the seized contraband though the said articles were seized from the vehicle admittedly owned by him. In (2018) 1 SCC 202 and (2005) 4 SCC 146, the owner of the vehicle carrying the contraband had sold out the vehicle to another person but the registration of the vehicle was not changed in favour of the purchasers. In (2010) 1 C Cr LR (SC) 243 the house from which contraband substances were recovered was not exclusively owned and possessed by the accused and therefore, exclusive possession of contraband was not proved against him. In (2002) 7 SCC 419 the accused appellants were travelling in a truck from which poppy husk was recovered such persons were not the owners and were mere passengers having no knowledge about the said articles and could not be said to be in possession of the same. The ratio in the present case can be distinguished from the authorities referred to above as appellant Sahadev Dutta is admittedly the owner of the vehicle from which the contraband was seized and failed to offer any explanation to rebut the presumption u/s 54 of the Act.
18. It is pertinent to refer to Section 106 of the Evidence Act, 1872 which reads as follows:-
"Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
19. In the instant case, the prosecution having proved constructive possession of the contraband by the owner Sahadev Dutta and the fact of his vehicle containing and transporting contraband being specially within his knowledge, it was incumbent upon him to reasonably explain such circumstance. Failure to offer such explanation entails adverse presumption against the owner.
20. In the circumstances, this appellant cannot escape conviction u/s 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act.
21. The driver of the vehicle Binoy Krihsna Dey stands on a different footing. Though he produced his driving licence before the Investigating Officer, that does not by itself suggest that he was at the driving wheel on the relevant night. Recovery or possession of the contraband articles from the vehicle can under no circumstances be attributed to him, given the scanty evidence on record in this regard. One authorisation letter issued by the owner Sahadev Dutta in favour of driver Binoy Krishna Dey to drive the vehicle in question was seized from the possession of Binoy Krishna Dey during investigation. Such authorisation letter merely indicates that the said appellant was ordinarily authorised to drive the vehicle and by no stretch of imagination can it be inferred that he was in fact driving the vehicle on the relevant night. In the premise, both the appellants cannot be tied in the same string as the link between appellant Binoy Krishna Dey and seizure of the contraband articles has not been established beyond the shadow of reasonable doubt and as such, this appellant should be given the benefit of doubt and be acquitted from the charge levelled against him.
22. Upon consideration of the entire facts and circumstances of the case, material on record as well as the law on the point, I have no impediment to hold that conviction of appellant Sahadev Dutta should be affirmed and conviction of Binoy Krishna Dey is required to be set aside. Hence, portion of the impugned judgment and order convicting appellant Sahadev Dutta and sentencing him to suffer rigorous imprisonment for a term of ten years and pay fine of Rs. 1,00,000/-, in default to suffer rigorous imprisonment for one year is affirmed.
23. Period of detention undergone by the appellant during investigation, inquiry or trial be set off against the sentence of imprisonment u/s 428 of the Cr.P.C.,
24. The other portion of the judgment and order impugned convicting appellant Binoy Krishna Dey and sentencing him to suffer rigorous imprisonment for a term of ten years and to pay a fine of Rs. 1,00,000/- in default to suffer rigorous imprisonment for one year is set aside.
25. Appellant Binoy Krishna Dey shall be released forthwith from custody upon execution of bond to the satisfaction of the trial Court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure, if not wanted in any other cases.
26. The Criminal Appeal is disposed of accordingly.
27. Copy of the judgment along with L.C.R. be sent down to the trial Court at once.
28. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities. I agree.
(Joymalya Bagchi, J.) (Suvra Ghosh, J)