Calcutta High Court
Sandhya Das And Anr. vs State Of West Bengal on 27 February, 2004
Equivalent citations: 2004(2)CHN671
JUDGMENT 1. This appeal is directed against the judgment dated 23rd April, 1998 and sentence dated 24th April, 1998 passed by the learned Judge, Special Court under the N.D.P.S. Act at Howrah in N.D.P.S. Case No. T.R.-25/97 (Crime No. 11/N.C.E./Cal/97). By the said judgment both accused Smt. Sandhya Das & Smt. Dayal Dasi Das were found guilty of the offence punishable under Section 21 of the N.D.P.S. Act and convicted thereunder, and each of them was sentenced to suffer rigorous imprisonment for ten years and also to pay a fine of Rs. 1,00,000/- each, in default to suffer further imprisonment for one year each. 2. On 22nd August, 1997, a complaint was filed by one Sushil Kumar Das, Intelligence Officer, Narcotics Control Bureau, Eastern Zonal Unit, Calcutta, as a public servant alleging inter alia that acting on an information, a batch of the Narcotics Control Bureau (hereinafter referred to as NCB for brevity) intercepted two ladies i.e. Sandhya Das and Dayal Dasi Das on 26.5.97 at 10.00 hours in front of the Launch Ghat near Howrah Railway Station. The officers expressed their intention to search them personally through a lady sepoy on suspicion that they were carrying heroin secretly on their persons. Both the ladies admitted that they were carrying heroin secreted in jangias worn by them. From amongst on looking passers by two persons were requested to witness the search and seizure and as both of them agreed, the officers gave to the said two ladies written offer to opt for their personal search before a Magistrate or a Gazetted Officer elsewhere. Both the ladies expressed their unwillingness to move elsewhere and preferred to be searched personally on the spot. Accordingly, both the ladies got searched personally one after another by the participating lady sepoy in the nearest ladies lavatory with decorum and dignity in presence of the Superintendent (P) and other officers and the witnesses who were kept waiting just outside the lavatry. As a result of such search, a red jangia worn by Sandhya Das and a blue jangia worn by Dayal Dasi Das were recovered and produced before the waiting Superintendent (P) and other officers in presence, of the witnesses and on inspection before the witnesses, it was found that the jangias had special tailored cavity to secret articles in them and actually in the red jangia, two long polythene packets containing brown powder substance and in the blue jangia, one long polythene packet containing similar brown powder substance were found out. From each of three packets brown powder were tested by the officers in their drug detection kit and indicated it to be heroin. Each of three packets then was weighed and found that each of the packets was 500 gms in weight indicating that Sandhya Das was carrying one kg. brown powder and Dayal Dasi Das was carrying 500 gms. of brown powder. On reasonable belief that the said brown powder substance believed to be heroin were liable to be confiscated under Section 60 of N.D.P.S. Act, 1985. Three packets along with two jangias were seized on observance of all legal formalities under the supervision of the Superintendent (P) in presence of the accused persons and the independent witnesses and all of them put their fingers' prints and/or signatures on the prepared search list. Two samples of 5 gms. brown powder each was drawn from each of the said three packets for chemical test and the rest quantities of the brown powder and the seized jangias were sealed and labelled. Notices under Section 67 of the N.D.P.S. Act were served upon both the ladies requiring them to accompany the officers to N.C.B. Office, Calcutta, for further investigation. In the N.C.B. office, both of them tendered their written voluntary statement and admitted their guilt of carrying heroin on their persons for and on behalf of their employers in lieu of money towards carrying charges which they badly needed owing to their poverty. Accordingly, both of them were arrested and produced before the Court on 27.5.97. The samples were sent for chemical examination and on receipt of the report, it was confirmed that the seized articles was heroin. Accordingly, the complaint was filed against both of them for violation of the provisions imposed under Section 8 of the N.D.P.S. Act making them liable for punishment under Section 21 of the N.D.P.S. Act. 3. On receipt of the said complaint, the cognizance was taken under Section 21 of the N.D.P.S. Act. Separate charge was framed against both the accused persons under Section 21 of the Act on 22.12.97. Both the accused persons pleaded not guilty to the charge and accordingly seven witnesses were examined on behalf of the prosecution. No evidence was adduced on behalf of the defence. The defence case, that can be ascertained from the confession made under Section 313 of Cr. PC and suggestion given to the prosecution witnesses is that the accused persons were arrested from a different place and a false case was filed against them and nothing was recovered from them. 4. The learned Judge after hearing the learned Counsel of both sides and on perusal of the materials on record came to a finding that the prosecution was successful in proving the case against the accused persons and that the charge against both of them was proved beyond any reasonable doubt, and accordingly both the accused persons were found guilty and were convicted in the manner indicated hereinabove. 5. In course of hearing of this appeal, the learned Counsel appearing on behalf of the appellants challenged the findings of the Trial Court pointing out that the prosecution did not examine any independent witness as regards search and seizure, that the search and seizure was also not conducted at the spot, that the provisions under Section 50 of the N.D.P.S. Act were not followed and that there was no mention of presence of any lady constable at the time of search and seizure in the complaint or in the list of witnesses, but the lady constable of the department was examined as PW. 7. It was also indicated that the provision under Section 42 of the Act was also not stringently followed for which the entire trial was vitiated. It is also pointed out that the Gazetted Officer who was in the raiding party should not be construed to be a Gazetted Officer within the meaning of Section 50 of the. Act inasmuch as such an Officer is interested in the conviction of the accused. It is also pointed out that the seized articles were not forwarded to the nearest police station for safe custody in terms of the provisions of Section 52A of the Act nor those were produced before the Court during the trial thereby falsifying actual search and seizure. Finally, it is also argued that though each of the six samples was treated to be of 5 gms. but from the report of the chemical examination, it is to be noted that it was 4.5 gms. indicating that there was a scope of tempering of the samples. So, after analysing the evidence of the witnesses, it is argued that the prosecution has not been able to prove the case against the accused persons for which conviction is liable to be set aside. The learned Counsel also placed reliance on several case laws in support of his contention. 6. On the other hand, the learned Counsel appearing on behalf of the respondent contended that since the search and seizure was done in a public place within the meaning of Section 43 of the Act, there was no necessity of compliance of Section 42 of the Act as regards recording of the prior information received and sending of the same to his immediate official superior. It is further contended that the provision of Section 50 of the Act is also not applicable in the present case specially when the search and seizure was done in presence of a Gazetted Officer, N.C. Patra (PW. 6). As regards non-examination of the independent witnesses it is clarified that as they were not available but their presence was proved by the other witnesses, the non-examination of these witnesses is not fatal. In this connection the learned Counsel also placed reliance of the provision of Section 35 of the Act in support of the contention that possession of narcotic drugs with both the accused persons having been proved, no evidence has been adduced on behalf of the accused persons to prove that they had no knowledge or culpable mental state with respect to the articles recovered. So it is contended that presumption of possession under Section 54 of the Act proves the charge against both the accused persons. It is also argued that deposit of the seized narcotic drugs with the Officer-in-Charge of the police station is not mandatory within the meaning of Section 52A of the Act and accordingly non-compliance of the provision of that section cannot be construed to be fatal for this case. The learned Counsel also placed reliance on several judgments in support of his contention which would be discussed in appropriate stage. 7. The prosecution examined seven witnesses for proving the charge under Section 21 of the N.D.P.S. Act and also relied on the voluntary statement of both the accused persons after serving notice under Section 67 of the Act. The Chemical Examination Report proved that the articles seized were heroine. As regards seven witnesses, the PW. 2 is Assistant Chemical Examiner. PW. 1 (complainant) was not in the raiding party and he admitted that he had no personal knowledge about the case but on perusal of the materials on record he filed the written complaint. The PW. 3 and PW. 4 were N.C.B. Officials who accompanied the Superintendent of Central Excise, Pradip Kumar Sil (PW. 5). The PW. 6 N. C. Patra is a Gazetted Officer of N.C.B and PW. 7 is a lady Sepoy of N.C.B. It is to be mentioned that the name of this lady Sepoy was not indicated in the written complaint nor she was shown as witness in the list of witnesses appended to the written complaint. The signature of this lady Sepoy is also not appearing in the seizure list. Be it mentioned here that two other independent witnesses Debasish Ghosh and Munshidhar Barik who signed the seizure list, have not been examined in this case. 8. In paragraph 2 of the written complaint it is specifically stated that a batch of N.C.B. official including a lady Sepoy led by the Superintendent (P) intercepted two ladies, namely, Sahdhya Das and Dayal Dasi Das on 26.5.97 at 10 a.m. in front of Launch Ghat near the Howrah Railway Station. It is specifically stated that there was a prior information that an offence in respect of narcotic drug or psychotropic substance has been committed. The Superintendent of Central Excise, Pradip Kumar Sil who deposed in this case as PW. 5 stated on oath that in response to prior information he was present near the Jetty adjacent to Howrah Station since before 9 a.m. of 26.5.97. He further clarified that on 25.5.97 he got the information that two ladies would come that way on the next morning with heroin in their possession. He also claimed that PW. 3, PW. 4, PW. 6 and PW. 7 were with him besides other officials of N.C.B. The PW. 3 and PW. 4 corroborated the evidence of PW. 5 as regards the receipt of the prior information regarding possession of narcotic drugs. Smt. Shila Nag Chowdhury, lady Sepoy (PW. 7) further added that the informer was also present at about 9.30 a.m. at the spot. The PW. 6 also confirmed that he along with the team went to the spot for working out a previous information, He also added that the informer was present at the spot at about 9.45 a.m. 9. So it is sufficiently clear from the evidence of the witnesses produced that there was a prior information through an informer that an offence punishable under the Act has been committed in respect of narcotic drugs. It is clarified in cross-examination of PW. 5 that the prior information on the basis of which the raid was conducted was noted down in the office record. The PW. 5 also clarified that if necessary that note could be produced before the Court. So the fact remains that the prior information was also reduced into writing, undoubtedly following the provision of Section 42 of the Act. Of course the writing was not produced before the Court though it was a vital piece of evidence. The learned Counsel of both sides argued at length on this score. The learned Counsel for the appellant contended that the compliance of Section 42 of the Act in a case of this nature is mandatory, whereas the learned Counsel appearing on behalf of the respondent made a forceful argument that if search and seizure is done in a public place even on a prior information, there was no necessity of compliance of Section 42 of the Act. 10. The learned Counsel for the respondent on this score placed reliance in a recent judgment of the Apex Court in Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence reported in 2002 SCC (Cri.) 1865. It is also contended that since the search and seizure was done in a public place, the provision of Section 42 has no manner of application in the present case. The learned Counsel for the appellant rightly distinguished the said decision by pointing out that the search and seizure in this cited case was done in the Chennai Airport without any prior information and as such, section 43 was applicable in the said case. But in the present case it is already discussed above that the officers of N.C.B. went to the spot for working out on information that was reduced into writing. So there is sufficient evidence that the provision of Section 42 was being followed before conducting the search and seizure. 11. In this connection it is to be pointed out that a Division Bench of this Court in Abdul Khhalek @ Raja v. Narcotic Control Bureau, Eastern Zonal Unit, reported in 2003(1) CHN 85, after analysing the decisions of the Apex Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, , Beckodan Abdul Rahiman v. State of Kerala, , State of Punjab v. Baldeb Singh, , Razak v. State of Kerala, 2000 SCC (Cri.) 829 and the Full Bench decision of the Bombay High Court in Jayantilal Modi v. State of Maharashtra, 2002(1) Crimes 374 took a view which is indicated in paragraph 15 reproduced below : "From the aforesaid decisions of the Apex Court as well as of the Full Bench of the Bombay High Court, it appears to us that in all these cases an attempt has been made to distinguish the law laid down by the Supreme Court in Baldev Singh's case by holding that if search/seizure etc. are made pursuant to information received it is the obligation of the raiding party to first reduce such information/intelligence into writing and to forward the same to the immediate superior officer before embarking upon such search/seizure irrespective of whether same are being made at a public place or not. Accordingly, we have no option but to follow the law as laid down in the aforesaid decision of the Apex Court and also the Bombay High Court that if search and seizure etc. are sought to be made pursuant to some information received in this regard, same shall first be reduced into writing and shall be forwarded to immediate superior officer of the department before embarking upon such search and seizure." 12. So following the same view it is held that whenever the empowered officer with prior information makes a search and seizure of contraband article under the N.D.P.S. Act even in a public place, the compliance of the provisions of Section 42 is mandatory. Accordingly, it is incumbent upon the empowered officer before proceeding to search and seizure on prior information to reduce the information into writing and to send the same to the superior officer. 13. It is equally a settled principle of law that at the time of search and seizure the provisions of Section 50 of the Act are to be complied with, and the provision is mandatory in the event of search of person on prior information. At the same time it is also settled by the Apex Court in Baldev Singh (supra) that when there was no prior information as contemplated under Section 42 if a search and seizure of contraband are conducted the requirements of Section 50 of the Act are not attracted. We deem it proper to quote from paragraphs 10, 11 and 12 of the Judgment of Baldev Singh (supra) which read as under : "10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or 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. Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of the same to his immediate official superior, Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substances in a public place where such possession appears to him to be unlawful. 11. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under Sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there was no reasonable ground for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. 12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered, the requirements of Section 50 of the Act are not attracted". 14. However, the learned Counsel appearing on behalf of the respondent placing reliance on the decision of the Apex Court in Union of India and Ors. v. Dhanwanti Devi and Ors., , tried to argue that the principle enunciated in Baldev Singh's case (supra) cannot be construed to be a binding precedent inasmuch as the ratio in that decision did not settle the law as regards the requirement of Section 43 of the Act. But after a close scrutiny of the judgment of the Constitution Bench in Baldev Singh's case (supra) we are of the view that all the sections of the N.D.P.S. Act which are generally taken into consideration during the trial of such cases, namely the Sections 41, 42, 43, 50, 51 and 52 of the N.D.P.S. Act, were taken care of for settling the law on the point and it has been specifically indicated that when there was a search and seizure on the basis of a prior information received and reduced into writing the requirement of Section 42 as well as Section 50 of the Act are to be complied with in case of search of a person notwithstanding wherefrom the person is found - either in a closed place or in a public place. So we do not think that the law on this point was not decided by the Constitution Bench. 15. After a careful scrutiny of the materials on record and the discussions hereinabove made, we come to a conclusion that the prosecution by not producing the information in writing, admittedly recorded by them, practically took upon themselves the risk of loosing the case. Side by side they also did not produce the admitted information in writing that an offer was given to the accused persons disclosing their right to be searched in presence of a Magistrate or a Gazetted Officer. Of course none of the witnesses ever claimed that there was any disclosure as regards the right of these accused persons to be searched in presence of a Magistrate or a Gazetted Officer. It is simply indicated in evidence that a written option was given to the accused persons as regards their search in presence of a Gazetted Officer or before a Magistrate. The best evidence in this regard is the written information which has not been produced in this case thereby leaving a doubt as regards the real disclosure. Moreover from the evidence on record, it is clear that none of the witnesses ever claimed that the accused persons were informed about their right to be searched in presence of a Magistrate or a Gazetted Officer. In this connection it is also interesting to note that the search and seizure which took plea in presence of PW. 7 a lady Sepoy of N.C.B never claimed that the accused persons were ever informed about their right to be searched in presence of a Magistrate or a Gazetted Officer. It is also to be noted from the seizure list that the name of lady Sepoy is not indicated nor it bears the signature of the said lady Sepoy. The PW. 7 of course tried to say that she was present at the time of search and seizure. But the reason of her not signing the seizure list having not been explained practically create a doubt in the mind of the Court as regards the read state of affairs. 16. Undoubtedly a severe punishment has been prescribed in connection with the cases under the N.D.P.S. Act. It is also a settled principle of law that severe the punishment, greater has to be care taken to see that all safeguards provided in a statute are scrupulously followed. In the present case neither the provisions of Section 42 of the Act nor the provisions of Section 50 were scrupulously followed. Even the provision of search and seizure by the named lady constable was not disclosed in the seizure list. So before taking any presumption, as regards the commission of the offence, under Section 35 of the Act it is to be stated that the prosecution has not been able to prove that all the safeguards were scrupulously followed in connection with search and seizure. Since the prosecution could not prove the case beyond any reasonable doubt, the question of shifting of the onus does not arise under Section 35. Similarly there is also no scope for taking any presumption under Section 54 of the Act. 17. So after a due consideration of the facts and circumstances of the case and the points discussed we come to a conclusion that the prosecution has not been able to prove the charge levelled against both the convicted persons. Since there was inherent illegality in the matter of search and seizure, the conviction cannot be upheld and finding in this regard is required to be set aside. 18. Accordingly, we allow this appeal and set aside the impugned judgment of conviction and sentences. Both the appellants are found not guilty to the charge and both of them are acquitted. We further direct that both the appellants namely, Smt. Sandhya Das and Smt. Dayal Dasi Das be set at liberty forthwith. Sankar Prasad Mitra, J.
19. I agree.