Calcutta High Court
Md. Azad Parvez vs Narcotic Control Bureau And State Of ... on 10 August, 2006
Equivalent citations: 2007(1)CHN101
JUDGMENT Alok Kumar Basu, J.
1. Amar Nath Rajak of Criminal Appeal No. 11 of 2003, Md. Azad Parvez of Criminal Appeal No. 321 of 2002 and Satya Pradhan, Hamid Riaz Ahmed Siddeique, Sitaram Majhi and Nooruddin Khan of Criminal Appeal No. 326 of 2002 along with Kumar Mankeswar Nath, Aslam Khan and Sambat Khan faced Sessions Trial No. 4(9) of 2000 under Section 21/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act for the sake of brevity) before the learned Judge, Special Court, Alipore.
2. Amar Nath Rajak was convicted under Section 21 of the NDPS Act while Satya Pradhan, Hamid Riaz Ahmed Siddeique, Sitaram Majhi, Nooruddin Khan and Md. Azad Parvez were convicted under Section 29 of the NDPS Act and all of them including Amar Nath Rajak were sentenced to suffer rigorous imprisonment for ten years each and to pay a fine of Rs. 1,00,000/- each, in default, to suffer simple imprisonment for one year more.
3. Accused Sambat Khan facing the trial under Section 21 of the NDPS Act and accused Aslam Khan and Kumar Mankeswar Nath facing the trial under Section 29 of the NDPS Act were, however, found not guilty and all of them were acquitted after trial.
4. The convicted persons preferred three criminal appeals separately as indicated above and as all those appeals arose out of a common judgment and order, we have taken up all the appeals together for disposal by a common judgment.
5. The prosecution case arose out of a long written complaint lodged by one Susabhan Dutta, Intelligence Officer of Narcotic Control Bureau, Calcutta. Mr. Diitta in his written complaint disclosed that on 1st February, 1999 acting on secret information a group of officers of Narcotic Control Bureau led by Mr. N.C. Patra holding rank of a Gazetted Officer intercepted one man in front of B.R. Singh Hospital gate, Sealdah at about 10.30 hours. On interrogation the said man stated his name as Amar Nath Rajak and he was informed that officers wanted to search the bag he was carrying and thereafter on search of the bag about 1 kg. of heroin was recovered. In presence of independent local witnesses and in presence of officers of the Bureau, after due compliance of all legal formalities, seizure list was prepared and sample was drawn from the seized heroin.
6. Amar Nath Rajak on interrogation disclosed that he came from Patna and he was staying at a local lodge of Howrah and his other companions were in the lodge of Howrah. Sri Rajak also disclosed that he received the heroin from one Arnbar Samaddar of Howrah. Acting on the information of Sri Rajak, Narcotic Control Bureau officers visited the lodge at Howrah and found there Aslam Khan, Kumar Mankeswar Nath, Satya Pradhan and one Panchanan Maity. Satya Pradhan, on interrogation by the Narcotic Control Bureau officers, disclosed that he was involved in sale of heroin and he further disclosed that the persons who sold heroin to him were staying at Mahamaya Lodge at Midnapore.
7. Meanwhile Narcotic Control Bureau officers tried to apprehend Ambar Samaddar and although he was actually arrested on 1st February, 1999, he subsequently managed to escape from the custody of the Narcotic Control Bureau officers.
8. Narcotic Control Bureau officers, after service of notice as required under NDPS Act, recorded statement of Satya Pradhan, Aslam Khan, Kumar Mankeswar Nath and Amar Nath Rajak.
9. On the basis of statement of Satya Pradhan, Narcotic Control Bureau officers arrested Sitaram Majhi and Hamid Riaz Ahmed Siddeique from Mahamaya Lodge, Midnapore and their statements were also recorded and following their statements, the Narcotic Control Bureau officers went to Orissa to arrest Nooruddin Khan who was engaged in dealing in Narcotic Drugs along with one Md. Azad Parvez.
10. Narcotic Control Bureau officers while raiding the house of Nooruddin Khan in Orissa could not arrest Nooruddin Khan, but, in presence of Sambat Khan, father of Nooruddin Khan, 7 kg. heroin was recovered from the house of Sambat Khan and Sambat Khan was also arrested and his statement was also recorded. From the statement of Satya Pradhan, Hamid Riaz Ahmed Siddeique and Sitaram Majhi Narcotic Control Bureau officers came to learn that Nooruddin Khan and Md. Azad Parvez, were the principal person dealing in heroin and were responsible for sale of the same into different States.
11. Narcotic Control Bureau officers subsequently arrested Nooruddin Khan and Md. Azad Parvez.
12. In course of investigation, sample of heroin collected from the possession of Amar Nath Rajak was sent for chemical examination and the report of the chemical examiner confirmed the same to be that of heroin. After investigation, complaint was lodged by Mr. Dutta against Amar Nath Rajak and Sambat Khan under Section 21 of the NDPS Act and against rest of accused persons including the absconding accused Ambar Samaddar under section 29 of NDPS Act.
13. The learned Special Judge, after framing necessary charge against accused persons recorded the statement of as many as eight prosecution witnesses. Apart from oral evidence, prosecution produced several documents including different seizure lists, confessional statements of different accused persons, report of the chemical examiner and prosecution also produced the seized alamats along with samples as material exhibits.
14. The learned Special Judge, on perusal of prosecution evidence and with special reference to the seizure lists regarding recovery of 1 kg. of heroin from accused Amar Nath Rajak, and his confessional statement was of the view that prosecution successfully proved that on 1st February, 1999 accused Amar Nath Rajak was found in possession of 1 kg. of heroin without any document. The learned Judge, after considering submissions raised on behalf of the accused Amar Nath Rajak, opined in his judgment that the seizure list as regards Amar Nath Rajak was made strictly in accordance with the provisions of NDPS Act and the learned Judge found no reason to disbelieve the prosecution witnesses to hold conclusively that Amar Nath Rajak was guilty of the offence under Section 21 of the NDPS Act.
15. The learned Judge mainly relying on the confessional statements of Satya Pradhan, Sitaram Majhi, Hamid Riaz Ahmed Siddeique and accepting the evidence of the officers of the Narcotic Control Bureau who were examined as P.Ws. came to the conclusion that Satya Pradhan, Sitaram Majhi, Hamid Riaz Ahmed Siddeique, Nooruddin Khan and Md. Azad Parvez in pursuance to their agreement were party in the matter of abetment and criminal conspiracy for dealing in heroin and accordingly, the learned Special Judge found all of them guilty for the offence under Section 29 of the NDPS Act.
16. The learned Judge although accepted the prosecution case regarding recovery of 7 kg. of heroin from the house of Nooruddin Khan and Sambat Khan, however, without getting sufficient evidence acquitted Sambat Khan from the charge under Section 21 of the NDPS Act as prosecution, according to the learned Judge, could not establish beyond reasonable doubt that Sambat Khan was responsible for keeping all the heroin in the house and Sambat Khan was actual owner of the house. The learned Judge also acquitted Aslam Khan and Kumar Mankeswar Nath from the charge under Section 29 of the NDPS Act since on proper examination of their confessional statements, nothing came out to involve them behind the charge of conspiracy and abetment.
17. Ms. Alam appearing for convicted appellant Amar Nath Rajak in connection with Criminal Appeal No. 11 of 2003 submits that the conviction of the her client cannot be supported for the following reasons:
Ms. Alam contends that it has been held in plethora of decisions of the Hon'ble Supreme Court that the different provisions contained in the NDPS Act regarding the manner of holding search and regarding the manner of making search and seizure and preservation of the seized articles and also regarding the mode of sending of the sample for chemical examination being strictly mandatory in nature, prosecution while bringing a charge under Section 21 of the NDPS Act is required to prove strict compliance of those provisions both in letter and spirit and if there is a single violation, the entire trial shall vitiate and the order of conviction must be set aside.
Ms. Alam contends that there is nothing on record from the side of prosecution to show what was the source of information leading to the Narcotic Control Bureau officials to intercept Amar Nath Rajak near B.R. Singh Hospital, Sealdah and this was the first violation of the provision of the Act.
18. It is contended on behalf of Amar Nath Rajak that although according to prosecution two local witnesses were present at the time of search and seizure, no local witness was examined during trial and this will clearly establish that the Narcotic Control Bureau officers conducted the alleged search in a secret manner ignoring the mandate of the Act and hence, this secret search and seizure cannot be taken into consideration by the Court.
19. It has been contended that there is nothing on record to show how and where weighment was made regarding the recovered articles and there is no evidence to show satisfactorily that both the samples and the alamats were preserved in accordance with the provisions of the law and since no register of the malkhana was produced during trial, there are grounds to hold that strict compliance was not made while preserving and while sending the sample to the chemical examiner.
20. It has also been contended on behalf of the appellant Amar Nath Rajak that on close examination of the report of the chemical examiner and the search memo, discrepancy will be noticed regarding the quantity of sample allegedly collected by the Narcotic Control Bureau officers and that sent to the chemical examiner for report.
21. Ms. Alam finally submits that although in the eye of law a statement given by the accused of NDPS Act before Narcotic Control Bureau officers is admissible, but, no reliance should be placed on such statement unless it is corroborated by convincing and reliable evidence and in this case when there are enough ground to question credibility of the prosecution case as regards search and seizure and when there are grounds to hold that Narcotic Control Bureau officers did not act strictly in accordance with the mandatory provisions of the Act, the learned Judge was not justified in convicting the appellant under Section 21 of the NDPS Act.
22. Mr. Sekhar Basu has appeared for the remaining appellant of Criminal Appeal No. 321 of 2002 and Criminal Appeal No.326 of 2002 respectively. Mr. Basu contends that these appellants were convicted under section 29 of the NDPS Act for abeting Amar Nath Rajak and Sambat Khan in the matter of their illegal possession of heroin. Mr. Basu submits that with the recording of an order of acquittal as regards Sambat Khan and on the ground of not preferring any appeal by the Narcotic Control Bureau against the order of acquittal of Sambat Khan, it can be reasonably contended that the present appellants cannot be found guilty for the charge of abetment as regards alleged illegal possession of heroin by Sambat Khan.
23. Mr. Busu contends that on proper scrutiny of the statement of the material prosecution witnesses and the documents exhibited on behalf of prosecution it is very much clear that no incriminating article was found in possession of any of the appellants either at Howrah Lodge or at Mahamaya Lodge or at any other place. Mr. Basu contends that prosecution even could not examine a single independent witness to support its allegation that these appellants ever conspired with each other or they had any common agreement in dealing with heroin or other contraband articles within the prohibition of the NDPS Act.
24. Mr. Basu contends that prosecution in support of its case under Section 29 of the NDPS Act against the present appellants simply relied on the statements or Satya Pradhan, Sitarani Majhi and Hamid Riaz Ahmed Siddeique.
25. Mr. Basu contends that under the special provisions of the NDPS Act, statements made by accused persons before the designated officers under the Act are admissible in evidence, but, so far their value in the matter of supporting a conviction order, Mr. Basu has referred to decisions namely, Kashmira Singh v. State of M.P. and Bhubani Sahu v. King reported in AIR 1949 Privy Council page 257.
26. Mr. Basu submits that in this case the learned Judge relied on the statement of the accused persons not only to convict them alone, but, he also relied on such statements to hold the other persons guilty under the charge of abetment.
27. Mr. Basu contends that on proper scrutiny of the statement of Satya Pradhan, Sitaram Majhi and Hamid Riaz Ahmed Siddeique it would appear that none of them gave the statement voluntarily and, in fact, the Narcotic Control Bureau officers acting on their own imagination prepared those statements to serve their purpose of filing a false complaint against the appellants and hence, the learned Judge ignoring the basic principle of law in the matter of appreciation of confessional statement of an accused, convicted the present appellants simply on such alleged confessional statements without looking for any corroboration from the prosecution side. Mr. Basu, therefore, contends that having regard to the nature of prosecution evidence, the prosecution miserably failed to bring home the charge under Section 29 of the NDPS Act against any of the appellants and for all these reasons, the order of conviction recorded by the learned Judge against all the appellants must fail.
28. Mr. Himanshu Dey appearing for the Narcotic Control Bureau in all the three appeals submits before us that so far the appeal preferred by Amar Nath Rajak is concerned, having regard to the prosecution evidence available with the record, there is practically no scope to interfere with the order of conviction and the sentence passed against Amar Nath Rajak by the learned Trial Judge.
29. Mr. Dey contends that a team of officers of the Narcotic Control Bureau led by their Superintendent N.C. Patra who was a gazetted officer intercepted Amar Nath Rajak neting on source information near the main get of B.R. Singh Hospital at Sealdah and after complying with all legal formalities, 1 kg. of heroin was recovered from a bag carried by said Amar Nath Rajak.
30. Mr. Dey submits that since the place of seizure was on a public road and since a gazetted officer was present in the searching team, there was no requirement for the team to comply with either the provision of Section 41(2) or 42(2) of the NDPS Act.
31. Mr. Dey contends that since the heroin in question was not recovered from the person of Amar Nath Rajak, but, the same was recovered from a bag carried by Amar Nath Rajak, no question would arise regarding compliance of Section 50 of the NDPS Act.
32. Mr. Dey contends that in presence of a gazetted officer, officers of the Narcotic Control Bureau conducted the search and seizure and hence, even without presence of any independent public witness, no question can be legally raised against such search and seizure.
33. Mr. Dey contends that soon after search and seizure, Amar Nath Rajak was brought to the local office of the Narcotic Control Bureau where other formalities were complied with and the sample as well as the remaining alamats were preserved and in due course of business, sample was sent for chemical examination and on close examination of the report of the chemical examiner along with the material exhibits produced in Court during trial, it would appear that there was no discrepancy between the quantity of sample taken and that mentioned in the report of the chemical examiner.
34. Mr. Dey contends that Amar Nath Rajak also gave a statement under Section 67 of the NDPS Act and in that statement he confessed regarding his possession of the heroin in question and along with the search and seizure of the heroin in question from Amar Nath Rajak, prosecution successfully proved its case that the heroin in question was recovered from the possession of Amar Nath Rajak.
35. Mr. Dey to substantiate all the points taken by him has referred to a decision of the Hon'ble Supreme Court reported in the case of M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence reported in 2003 SCC (Cri) page 2024.
36. As regards two other appeals preferred by Md. Azad Parvez and Satya Pradhan, Hamid Riaz Ahmed Siddeique, Sitaram Majhi and Nooruddin Khan, Mr. Dey contends that all of them were charged under Section 29 of the NDPS Act for their involvement in the abetment of illegal possession of heroin by Amar Nath Rajak.
37. Mr. Dey contends that charge of abetment is required to be proved from mainly circumstantial evidence and in this particular case the statement of Satya Pradhan, Harnid Riaz Ahmed Siddeique and Sitaram Majhi were sufficient to establish circumstances against all the appellants and to show that each of them was involved in the matter of abetment of illegal possession and sale of heroin by Amar Nath Rajak.
38. Mr. Dey submits that it is true that there is no statement of Md. Azad Parvez and Nooruddin Khan, but, from the statement of Satya Pradhan, Hamid Riaz Ahmed Siddeique and Sitaram Majhi, the involvement of Azad Parvez and Nooruddin Khan was very much established.
39. Mr. Dey contends that on close examination of the statement of Satya Pradhan, Hamid Riaz Ahmed Siddeique and Sitaram Majhi it would be noticed that all of them voluntarily gave the statements to the officers of the Narcotic Control Bureau and there is nothing on record to support the case of the appellants that under duress or threat or promise they were compelled to make statements and in such a situation, the learned Judge relying on the statements of the appellants rightly convicted all the appellants under Section 29 of the NDPS Act. Mr. Dey in support of his contention has referred to the decision of the Hon'ble Supreme Court as reported in the case of A.K. Mehaboob v. Intelligence Officer, Narcotic Control Bureau reported in 2002 SCC (Cri) page 1035.
40. Mr. Dey, therefore, submits that having regard to the prosecution evidence, there appears no merit in these appeals and all the appeals must be dismissed. The learned Advocate appearing for the State adopted the argument put forward by Mr. Dey.
41. We have considered submissions of the learned Advocates of the respective parties and we have also examined the prosecution evidence on record.
42. The case of Amar Nath Rajak was that 1 kg. of heroin was recovered from his possession and apart from the seizure list and statement of the officers of the Narcotic Control Bureau, prosecution also relied on the report of the chemical examiner and also on the confessional statement of Amar Nath Rajak.
43. The learned Advocate appearing for Amar Nath Rajak mainly raised legal points challenging the order of conviction and those legal points are that no independent witness was examined at the time of alleged seizure, no document was proved to show the source of information before interception of the accused, no document was shown how the sample was sent and how the alamats were preserved and finally, no reliance can be placed on the statement of Amar Nath Rajak to substantiate the order of conviction.
44. We have gone through the ratio of decision given in the case of M. Prabhulal (supra) where virtually all the points taken by the learned Advocate for Amar Nath Rajak were discussed and decided against the appellant.
45. We find that where the place of recovery would be a public place and a gazetted officer was available during search and seizure, compliance of Sections 41(2) and 42(2) of the NDPS Act was not required.
46. From the report of the chemical examination and also from the exhibit list, we do not find anything to lend support to the contention of the appellant that there was any discrepancy between the quantity of sample and the quantity mentioned in the report of the chemical examiner and, that apart, from the material exhibit as well as from other exhibits, we are inclined to hold that after due compliance of the provisions of the Act the sample was collected and sent for chemical examination and report.
47. Amar Nath Rajak also gave a statement soon after recovery of the heroin from his possession and in that statement he in most clear and unambiguous term confessed his guilt regarding illegal possession of the heroin in question and naturally, after taking into consideration the search and seizure proved by the officers of the Narcotic Control Bureau along with the confessional statement and keeping in mind the ratio of decision of M. Prabhulal (supra), we are inclined to hold that prosecution beyond any shadow of doubt proved that 1 kg. of heroin was recovered from the possession of Amar Nath Rajak and naturally, having regard to the prosecution evidence and after considering submissions of the learned Advocate for appellant Amar Nath Rajak, we are of the view that the learned Judge rightly convicted Amar Nath Rajak under Section 21 of the NDPS Act.
48. The stand of other appellants namely Md. Azad Azad Parvez, Satya Pradhan, Hamid Riaz Ahmed Siddeique, Sitaram Majhi and Nooruddin Khan is completely different from that of Amar Nath Rajak. It is the undisputed case that no incriminating substance was recovered from the possession of any of these appellants and even no incriminating document was also recovered from their possession by the officers of the Narcotic Control Bureau.
49. The charge against these appellants was that under section 29 and to be more specific for abetment.
50. It is very pertinent to mention that in the charge framed against these appellants it was mentioned that they abeted keeping of heroin by Amar Nath Rajak and Sambat Khan, but, during trial Sambat Khan was exonerated from the charge of Section 21 of the NDPS Act, and no appeal was preferred against that order of acquittal and naturally, the specific charge against these appellants would be for abetment of keeping of heroin by Amar Nath Rajak.
51. It is also important to mention at this juncture that along with the present appellant another three persons were arrested by the officers of the Narcotic Control Bureau and amongst them Panchanan Maity was not sent up for trial and the other two persons were acquitted by the learned Judge who also framed charge under Section 29 of the NDPS Act.
52. Now, coming to the prosecution evidence regarding the present appellants we find that only on the basis of statement of Satya Pradhan, Hamid Riaz Ahmed Siddeique and Sitaram Majhi all the five appellants were convicted under Section 29 of the NDPS Act.
53. It is true that there is statutory provision for recording of voluntary statement of a person charged with an offence under the NDPS Act and that statement is admissible in law and can be used for the purpose of conviction by a Court of Law, but, it is equally true that prudence demands that Court of law must seek corroboration regarding the contents of such statement before recording an order of conviction and this has been the uniform opinion of the Court of Law as we get from the decision of Bhubani Sahu v. King Emperor and also from the decision of Kashmira Singh v. State of M.P. .
54. From examination of the statement of Satya Pradhan, Hamid Riaz Ahmed Siddeique and Sitaram Majhi and after considering submissions of the learned Advocate of the respective parties, we are of clear opinion that those statements cannot be considered to be voluntary and in such a background, in our considered view, having regard to the ratio of decisions of Bhubani Sahu (supra) and Kashmira Singh (supra), it would be proper for any Court of Law before acting on such statement to seek a minimum corroboration regarding the material part of such statement and without such minimum corroboration, it would not be safe and legally proper to record an order of conviction on such statement alone.
55. We find that the learned Trial Judge placed his reliance on those statements and without asking for any corroboration convicted all the five appellants for the charge of abetment and in our view that was not the correct and legal proposition and hence, having regard to the prosecution evidence and after considering the submission of the learned Advocate of the respective parties, we are of the view that the conviction order against these appellants under Section 29 of the NDPS Act cannot be sustained in law.
56. In the light of our above discussion and after scanning of the prosecution evidence we are, therefore, of the view that there is no merit in the appeal preferred by Amar Nath Rajak, but, we find sufficient merit in the appeal preferred by Md. Azad Parvez, Satya Pradhan, Harnid Riaz Ahmed Siddeique, Sitaram Majhi and Nooruddin Khan.
57. We, therefore, dismiss Criminal Appeal No. 11 of 2003 preferred by Amar Nath Rajak and we allow Criminal Appeal No. 321 of 2002 preferred by Md. Azad Parvez and Criminal Appeal No.326 of 2002 preferred by Satya Pradhan, Hamid Riaz Ahmed Siddeique, Sitaram Majhi and Nooruddin Khan.
58. As we find from record that Md. Azad Parvez, Satya Pradhan, Hamid Riaz Ahmed Siddeique, Sitaram Majhi and Nooruddin Khan are in detention, we direct the Superintendent of the Correctional Home where those persons are detained for their immediate release from this case if they are not wanted in connection with any other case and the office is directed to forward a copy of this judgment and order at once to the Superintendent of the Correctional Home where the appellants are detained.
59. As we have dismissed the appeal of Amar Nath Rajak, his conviction and sentence recorded by the learned Trial Judge are hereby confirmed.
60. Send a copy of this judgment to the Superintendent of the Correctional Home where Amar Nath Rajak is detained for his information also.
61. Send the LCR along with copy of this judgment and order to the learned Trial Court for information and necessary action.
62. Xerox certified copy of this judgment and order may be supplied to the appellants on making proper application after complying with all legal formalities at the earliest.
Tapas Kumar Giri, J.
63. I agree.