Calcutta High Court
Prasun Chakraborty vs Narcotic Control Bureau on 1 March, 2019
Equivalent citations: AIRONLINE 2019 CAL 606
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Ravi Krishan Kapur
CRA 433 of 2012
Prasun Chakraborty
-vs-
Narcotic Control Bureau
With
CRA 178 of 2013
Gopal Roy
-vs-
State of West Bengal
For the Appellant : Mr. Kallol Mondal, Adv.
Mr. K. Roy, Adv.
........ in CRA 178/13
Mr. Arnab Chatterjee, Adv.
Ms. Aripta Saha, Adv.
....... in CRA 433/13
For the State: Mr. A.K. Maiti, A.P.P.
Ms. Pradipto Ganguly, Adv.
Mr. Sanjoy Bardhan, Adv.
For the UOI (NCB): Mr. Ranjan Roy, Sr. Adv.
Mr. Raja Roy, Adv.
Mr. D. Adhikari, Adv.
Heard on: 04.12.2018, 20.12.2018 & 16.01.2019.
Judgment on: 01.03.2019.
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 19.06.2012 and 20.06.2012 convicting the appellants for commission of offence punishable under section 20(b)(ii)(C) of the NDPS Act and sentencing them to suffer rigorous imprisonment for fifteen years and to pay a fine of Rs.1,50,000/- in default to suffer rigorous imprisonment two years more.
Prosecution case, as alleged, against the appellants is to the effect that on 26.09.2006 at 9.30 p.m. P.W.2, Hemabrata Bose, the then Intelligence Officer attached to NCB, received information that one blue coloured Mahindra Marshal jeep, Blue bearing registration no. WB-26C-3869 containing huge quantity of ganja is coming from Guwahati to Calcutta through NH34 and would reach Barasat in the early hours of 27.09.2006. He reduced the information into writing and intimated his superior officer in that regard. He obtained permission from the superior officer to conduct raid. Thereafter, P.W.2 along with other officers attached to NCB kept watch on NH34. Around 6.15 hours a blue coloured Mahindra vehicle bearing registration no.WB-26C-3869 was identified by the source and was intercepted. The NCB officers disclosed their identity and asked the driver and another person to come out of the vehicle. The officers disclosed their intention to search the said vehicle as they had information ganja was concealed inside the vehicle. The driver disclosed his identity as Gopal Roy of District Kamrup, Assam and the other person stated he was Prasun Chakraborty, s/o late Ajit Kumar Chakraborty, of 20/21 Ram Charan Seth Road, Ramrajatala, Howrah-4. They admitted that they were carrying ganja concealed inside the vehicle. Thereupon, NCB officers called two independent onlookers to witness the search. They also offered themselves to be searched by the suspects but the latter declined. Upon searching the vehicle three slabs of flowering tops of cannabis plant believed to be ganja wrapped in polythene packet and four numbers of gunny bags containing flowering tops of cannabis plant believed to be ganja along with two number plates bearing No. AS-3-1753 marked as 'Police' in Red colour and another number plate marked 'Police' in Red colour were recovered. Prasun Chakraborty voluntarily handed over Rs.3,580/- and his Nokia brand mobile handset model No. 1100 to the officers. Small portions of the seized articles were tested in the field drug detection test kit which responded positive to ganja. On weighment, the total weight of the contraband seized was found to be 191 kgs. The said contraband along with the vehicle, mobile phone, etc., were seized under a seizure list. Samples of 25 grams in duplicate were drawn at random from the seized consignments and kept in packets which were sealed, labelled and signed. The remaining bulk of seized contraband was also sealed, labelled and signed. The seized mobile handset along with Rs.3,580/- were put separately in paper envelopes and further sealed and signed. The suspects were served notice under section 67 of the NDPS Act and they accompanied the NCB officers to their office. Thereupon, the said persons made voluntary statements admitting their guilt. Pursuant to the voluntary statements made by the aforesaid persons, they were arrested in the instant case and the seized samples were sent for examination to the Chemical Laboratory, Customs House, Kolkata on 28.09.2006. Report of the Chemical Examiner received on 31.10.2006 confirmed that the seized consignments contained ganja. Accordingly, P.W.1 filed petition of complaint against the appellants resulting in the present prosecution. Charge was framed against the appellants under section 21(b)(ii)(C) of the NDPS Act. They pleaded not guilty and claimed to be tried.
In the course of the trial prosecution examined nine witnesses and exhibited a number of documents. Summons were issued upon the independent witnesses to the search which, however, returned unserved as they were not found at the addresses disclosed in the summons. Defence of the appellants was one of innocence and false implication. It was the specific defence of Prasun Chakraborty that on intervening night of 26-27.09.2006 some officers NCB had come to his residence and wanted to forcefully entered his house. He intimated Inspector Shyamal Ghosh attached to Howrah Police Station (D.W. 3). Thereafter, Hemabrata Bose (P.W.2) and Ganesh Jana (P.W.4) entered his house and took away ornaments and money from the almirah. They also went to the house of his landlord and took him away and falsely implicated him in the present case. Gopal Roy also claimed that he was also in the house of Prasun Chakraborty on the fateful night and had been similarly taken away from and falsely implicated. In support of their defence, they examined four witnesses including Shyamal Kumar Ghosh, the then Inspector-in-Charge, Shibpur Police Station (D.W. 3) and exhibited general diary entries recorded at the local police station.
In conclusion of trial, the trial Judge by judgment and order dated 19.06.2012 and 26.12.2013 convicted and sentenced the appellants as aforesaid.
Learned Counsels appearing for the appellants argued that there is non- compliance of section 42(2) of the NDPS Act regarding recording of reasonable belief based on prior information into writing and its communication to superior officer has not been proved. Original document had not been produced in Court and superior officer had also not been examined. It is also submitted that the appellants were subjected to torture in custody and complaint in that regard was made at the earliest opportunity when the appellant were produced before the court. Hence, their statements were recorded under section 67 of the NDPS Act while they were in custody of NCB officials cannot be said to be voluntary and ought not to be relied upon.
On the other hand, defence version that the appellants had been illegally arrested from the residence of Prasun Chakraborty is corroborated by independent witnesses including local police personnel and also supported by contemporaneous entry in the general diary maintained in ordinary course of business at the local police station. Independent witnesses were not examined. Finally, it has been argued that the investigation in the instant case was conducted by the members of the raiding party. Hence, the entire proceeding is vitiated in the light of the ratio laid down by the Supreme Court in Mohan Lal Vs. State of Punjab, AIR 2018 (SC) 3853, They relied on other authorities in support of their submissions.
On the other hand, learned lawyers for NCB as well as State deposed that the official witnesses examined in the instant case fully establish the prosecution case and their version ought not to be rejected due to non-examination of independent witnesses. Efforts were made to examine the independent witnesses but as they were untraceable at their respective addresses, they could not be examined. Voluntary statements made by the appellants were not retracted during their examination under section 313 Cr.P.C. and the desperate plea raised with regard to physical assault was not established during medical examination of the appellants when they produced before the court below. Vehicle is a stolen vehicle and search was conducted while the vehicle was in transit. Hence, section 42 of the NDPS Act is not attracted and the search is guided by section 43 of the said Act. Without prejudice to the aforesaid, it was submitted that there was compliance of section 42 of the NDPS Act as would appear from the version of prosecution witnesses particularly P.W.2. Hence, there is not illegality in the search resulting in recovery of narcotics from the appellants. Defence raised by the appellants suffers from inherent contradictions as none of the witnesses spoke of presence of the Gopal Roy at the place of occurrence. General diary entry does not refer to arrest of Prasun Chakraborty from his residence as claimed. Prosecution in the instant case was instituted on the basis of complaint lodged by P.W.1 which was unconnected with the search, seizure and the investigation of the case. Hence, ratio in Mohan Lal (supra) is inapplicable in the instant case. That apart it is submitted that the aforesaid authorities have been referred to a larger bench in Mukesh Singh Vs. State (Narcotic Branch of Delhi) in Special Leave Petition (Criminal) Diary No(s). 39528/2018. Various other authorities were relied upon.
It has been further argued that the voluntary statements made by the appellants are admissible as they had not been arrested at the time when their statements were recorded.
Evidence on record on behalf of the prosecution: -
P.W.2, Hemabrata Bose, was an Intelligence Officer attached to NCB. He received information that a blue coloured vehicle bearing no.WB-26C-3869 was coming from Guwahati to Howrah through NH34 carrying huge quantity of ganja and would pass Barasat in the early hours of 27.09.2006. He informed his superior officer in writing and obtained written permission to work out the information. He formed a team and proceeded towards Barasat on 26.09.2006 at 11.00 p.m. On 27.09.2006 at Helabattala they intercepted the vehicle. They found two persons were sitting in the vehicle. One of them was the driver who disclosed his name as Gopal Roy while the other person disclosed his name as Prasun Chakraborty. Gopal claimed that Prasun was the owner of the vehicle and he was working under him. P.W.2 and others disclosed their identity and said that they had information that the vehicle was carrying huge quantity of ganja.
They asked the said persons to alight from the vehicle so that they could search the vehicle. Prior to search they offered themselves to be searched by the aforesaid persons who, however, declined to do so and permitted them to search the vehicle. Two independent witnesses of the locality were called and the vehicle was searched. From the rear seat of the vehicle three slabs containing ganja and four gunny bags full of ganja were recovered. Some portions were taken out from the slabs as well as the gunny bags and they were tested with field test kit and responded positive to the test of ganja. During search two number plates were recovered, one plate bearing registration no.AS-30-1753 and the other plate bore the inscription 'Police' in red ink. Prasun Chakraborty handed over his mobile and money voluntarily. After weighment seized consignment was found to be 191 kgs. Out of the consignment, samples in duplicate of 25 grams each were drawn from each packet and they were sealed, labelled and signed and kept in separate packets. The packets were signed by the seizing officer as well as the aforesaid persons. Rest of the consignment was also sealed and labelled. Notices under section 67 of the NDPS Act were served upon Prasun Chakraborty and Gopal Roy. At the NCB office P.W.2 recorded the statement of Gopal Roy. He produced the photocopy of the information recorded by him. He deposed that the original information was sent to higher official and was not available to him. He proved the voluntary statement of Gopal Roy (Ext.2). Follow up action was taken at the residence of Prasun Chakraborty. Search was conducted there but nothing was found. A nil seizure list was prepared (Ext.3). He denied in cross-examination the suggestion that he along with Ganesh Jana had gone to the residence of Prasun Chakraborty in the intervening night of 26-27/09/2006 and had stolen gold ornaments and cash from his almirah and had also taken away Prasun Chakraborty from the said place. He stated that the mother tongue of Gopal Roy was Hindi but he resided in a place dominated by Bengalis in Guwahati. He did not put his signature on the first two pages of the statement of Gopal Roy.
P.W. 4, Ganesh Jana, was a member of the raiding party. He has corroborated the evidence of P.W.2. He deposed he issued two notices under section 67 of the NDPS Act to the appellants. He proved the evidence (Ext.7 and 7/1).
P.W. 5, Sankar Das Sinha, was also a member of the raiding party. He corroborated the evidence of the aforesaid witnesses. He deposed that he recorded the statement of Prasun Chakraborty (Ext.8).
P.W. 6, Monotosh Sarkar, a member of the raiding party, has corroborated the prosecution case. He deposed after the recording of the voluntary statements of Prasun Chakraborty and Gopal Roy, they were arrested. He prepared the memos of arrest (Ext.9 and 10).
P.W. 8, Arup Kumar Pal, another member of the raiding party, deposed he prepared the statement of weights of slabs and gunny bags (Ext.17/1). He also identified samples drawn from the said packets. On returning to NCB office he received the seized contraband samples from Rajiv Kumar (P.W.7) as the godown in-charge and made entries in the godown register. He proved the original godown register containing entries from 12.03.2000 to 27.08.2007. He also proved seized number plates and the labels thereon.
P.W. 7, Rajiv Kumar, deposed he was present at the time of search and seizure of contraband from the vehicle driven by Gopal Roy and Prasun Chakraborty. He deposed after seizure, samples were drawn and they were sealed, labelled and signed. Notices were issued under section 67 of the NDPS Act to Prasun Chakraborty and Gopal Roy. The suspects voluntarily accompanied the officers to the NCB office as they were unaware where the office was situated. They made voluntary statements confessing their guilt at the NCB office. The statements were reduced into writing. Subsequently, they were arrested and produced before the court. The articles as well as the godown register were produced before the court on the date of their production. Original test memo along with original samples containing 25 grams each were sent to the Chemical Laboratory, Customs House on 28.09.2006 for chemical examination. As per test report the samples tested positive to ganja. He proved the three test memos (Ext.4/2, 5/2, 6/2). Arrest memos were prepared by P.W.6 and signed by him. He conducted investigation with regard to the seized vehicle. He sent letter to Mahindra and Mahindra Company who confirmed that the vehicle was sold to Watershed Management, Dehradun. He contacted Watershed Management, Dehradun and came to learn that the vehicle had been stolen and such fact was diarized at the police station. He contacted RTO, Barasat with regard to the registration number fixed in the vehicle and the RTO informed that the said number was registered in the name of Shyam Bihari Sharma, S/o G.B. Sharma, 37/A, A.J.C. Bose Road, Kolkata- 700017. He sent letter to the Director General of Police, Ulubari, Guwahati and requested him to investigate the registration number appearing in the seized number plate, that is, AS-30-1753. He came to learn that the registration number belonged to an 'off road' vehicle of Assam police. He produced letter sent through fax to Mahindra and Mahindra Company confirming that the vehicle had been sold to Watershed Management, Dehradun (Ext.11). Pursuant to this letter he sent a letter to Watershed Management, Dehradun (Ext.12). In response thereto, Additional Director informed him in writing that the vehicle was stolen on 7.7.2004 and F.I.R was lodged (Ext.13). Subsequently, a team from Watershed Management inspected the vehicle and submitted report (Ext.14). Pursuant to letters sent to Director General of Police, Assam with regard to seized number plate bearing no.AS-30-1753, report was received stating that the aforesaid number plate was of an 'off road' Mahindra Jeep. He proved the report (Ext.15). He sent letter to RTO, Barasat for submission of report with regard to registration no. WB-26C-3869. In response to such letter, RTO Barasat intimated in writing that registration no. WB-26C-3869 was allotted to one Shyam Bihari Sharma, S/o G.B. Sharma, 37/A, A.J.C. Bose Road, Kolkata- 700017. He sent notice to Shyam Bihari Sharma through registered post but the said notice was returned to his office with the endorsement 'not known'. He identified the seized items as well as the samples in court. In cross-examination, he stated that the source information was received by Hemabrata Bose (P.W.2) and communicated to the superior officer Mr. Keishing.
P.W. 3, Subhendu Ghosh, was attached as Chemical Assistant, Grade-I to the Chemical Laboratory, Customs House, Kolkata. On 28.09.2006 he received three samples with test memos for chemical examination. He tallied the samples with the test memos and took them to Dr. A.K. Bandyopadhyay, chemical examiner. He tested the samples and in each case the samples tested positive for ganja. He proved the reports which was signed by him and countersigned by A.K. Bandyopadhyay (Exts. 4,5 and 6). He proved the said reports in court.
P.W. 1, Girish Nandan Pandey, deposed that he was an Intelligence Officer who lodged complaint. He proved the written complaint. In cross-examination, he stated that he had no personal knowledge of the search and seizure. He lodged complaint on perusal of the documents.
Defence led the following evidence:-
D.W. 1, Aniruddha Majumder, deposed he resided at 20/21 Ram charan Seth Road, Ram Rajatala, Howrah-4. Prasun Chakraborty was a tenant in his house in the year 2006. In the last part of September, 2006, around midnight Prasun came to his residence in the first floor. He opened the door and found Prasun standing there. Immediately thereafter 2-3 persons arrived at the spot and dragged Prasun to the ground floor. He followed them to the ground floor and upon enquiry the said persons stated that they were NCB officers. These officers ransacked the rented room of Prasun. He requested the Prasun's wife to inform the incident to local police station. The officers kept Prasun and his family members under confinement and snatched away his mobile phone. They broke his almirah and took away gold ornaments. The officers did not furnish any document for their action. The officers took away Prasun along with cash and ornaments from the spot. In cross-examination, he stated he did not take any initiative to report the matter to police station. Apart from family members no outsiders was present at the time of occurrence.
D.W. 2, Chandreswar Singh, a constable attached to Chatterjee Hat I.C. under Shibpur Polce Station, produced the general diary book in court.
D.W. 3, Shyamal Kumar Ghosh, was the then Inspector in-Charge of Shibpur Police Station. He deposed that in the intervening night of 26- 27.09.2006 around 12.30/1.00 a.m. he received phone call from Prasun Chakraborty that some people claiming themselves as police personnel had encircled his house and were demanding that he opened the door. He told Prasun not to open the door and informed the officer-in-charge, Chatterjee hat Investigation Centre, namely, S.I. Ashoke Bose to pursue the matter. He also informed Additional I.C. of Shibpur Police Station, namely, Inspector Deepnarayan Bhattacharjee to look into the matter. At 2.00 a.m. he was informed that A.S.I. Hemanta proceeded to the address of Prasun Chakraborty and found one TATA SUMO vehicle and one MARUTI OMNI vehicle were standing at the entry point of the lane leading to the house of Prasun Chakraborty. Some people were inside the vehicle. One of them disclosed that they were officers to Narcotic Cell and had come to hold raid at the house of Prasun Chakraborty. He asked S.I. Ashoke Bose to diarize the incident which he did.
D.W. 4, A.S.I. Hemanta Gorai, deposed on 27.09.2006 at 1.00 a.m. he was on patrol duty. He received information with regard to a dacoity beside Bani Niketan Library on Ramcharan Sett Road, Ramrajatala. He went to the spot and found that NCB raid was going on. He made GD entry being No.1058 (Ext.A) and narrating the incident.
Recovery of Narcotic Substance:-
Prosecution has sought to rely on the evidence of P.W.s 2, 4 to 8 with regard to the recovery of 191 kgs of ganja from the rear seat of a Tata Mahindra Marshal vehicle bearing registration no.WB-26C-3869 at Helabattala, Barasat around 6.15 a.m. of 27.09.2006 which was driven and occupied by the appellants. Their evidence have been criticized by the appellants on the ground that the prior information recorded by P.W.2 had not been proved, the superior officer to whom it was claimed to be communicated was not examined and independent witnesses to the seizure have also not been examined. It is further contended that P.W. 2 and 4 had been to the residence of Prasun Chakraborty at Howrah in the intervening night of 26-27.09.2006 and had illegally arrested the appellants therefrom and falsely implicated them in this case. In reply, it has been argued that efforts were made to examine the independent witnesses and summons were sent to them but the said witnesses could not be traced at their addresses. It has also been argued that search and seizure was conducted in the instant case after following due formalities and the evidence of the defence witnesses are not worthy of credence. Search was conducted while the vehicle was in transit and hence, section 43 and 42 of NDPS Act is attracted in this case. In the alternative, it is argued there was substantial compliance of section 42(2) of the Act by production of the photocopy of the written information recorded by P.W.2 and other materials on record.
Firstly, let me address the issue whether the search of the vehicle in this case was governed by section 42 or 43 of the NDPS Act. Section 42 of the NDPS Act, inter alia, provides that officers of Narcotic Control Bureau (superior in rank to peon or constable) may between sunrise and sunset, enter into and search in any building, conveyance or enclosed place if he has reason to believe from personal knowledge or information received from any person which is taken down in writing that narcotic substance is kept or concealed in such building, conveyance or enclosed place. Under section 42(2) of the NDPS Act, the concerned officer is required to send a copy of the said written information to his superior. On the other hand, seizure of narcotic substance from a public place or in transit is governed by section 43 of the Act which does not require the raiding officer to record the prior information which is the foundation of his reasonable belief in writing or to send a copy thereof to his superior officer as envisaged under section 42 of the NDPS Act. It has been argued on behalf of the State as the vehicle was intercepted and searched while it was moving down a national highway, that is, NH34, section 43 of the Act would be attracted. Alternatively, it has been argued that in the light of the evidence of P.W. 2 and the photocopy of the written information being produced in court (in the absence of the original which had been forwarded to the superior officer) there is due compliance of section 42(2) of the Act. In support of such contention reliance has been placed on Jarnail Singh Vs. State of Punjab, (2004) Cri.LJ 2541 and Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539. An analysis of section 42 of NDPS Act would show that search conducted by an officer not below the rank of peon, sepoy or constable in any building, conveyance or enclosed place between sunrise and sunset must be preceded by recording of prior information received by the officer which is the foundation of his reasonable belief for such search and the said information reduced in writing must be communicated to the superior officer. The aforesaid provision was analysed by a constitution bench of the Supreme Court in Karnail Singh (supra) wherein it was held as follows: -
"35...(a) The officer on receiving the information (of the nature referred to in Sub- section (1) of section 42] from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
On the other hand, Section 43 of the Act envisages seizure of narcotic substance in a public place or in transit. The word 'public place' includes public conveyance. In State of Rajasthan Vs. Jagraj Singh, (2016) 11 SCC 687, the Supreme Court had the occasion of interpreting the word "public conveyance". It held that a vehicle which had requisite permit in accordance with the Motor Vehicles Act 1988 for transporting passengers can only be termed as public conveyance. It held as follows: -
"18. The explanation to section 43 defines the expression "public place" which includes any public conveyance. The word "public conveyance" as used in the Act has to be understood as a conveyance which can be used by the public in general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 were enacted to regulate the law relating to motor vehicles. The vehicles which can be used for public are public motor vehicles for which necessary permits have to be obtained. Without obtaining a permit in accordance with the Motor Vehicles Act, 1988, no vehicle can be used for transporting passengers."
Although the evidence has come on record that the seized vehicle is a stolen one but it is nobody's case that it was a public carrier. Hence, the search was not conducted in a public vehicle so as to attract the provisions of section 43 of the Act. However, it s argued that the vehicle was intercepted and searched on a public road "in transit". Accordingly, section 43 of the act would be attracted. Reliance is placed on State of Haryana Vs. Jarnail Singh (2004) 5 SCC 188 in that regard. I am unable to accept such contention. In Jarnail Singh (supra) there was a chance recovery of narcotic from a tanker while it was in transit on a public highway in presence of a gazetted officer namely, superintended of police.
In that backdrop, the Apex Court held that the seizure had been effected under Section 43 of the NDPS Act and not under section 42 thereof. The factual matrix of the present case, however, is quite different. A prior information had been received by P.W.2 which was reduced into writing and as per his deposition, it had been dispatched to his superior officer. Thereafter, on the instruction of his superior (not examined in court) P.W.2 along with other officers proceeded to the spot and intercepted the vehicle which was moving down a public highway and recovered the contraband. As discussed earlier no evidence is forthcoming that the seized vehicle had permit to carry passengers or goods. Hence, the vehicle in question cannot be held to be a public conveyance so as to attract the lesser rigours of section 43 instead of section 42 in the matter of search and seizure.
On the other hand, search and seizure in the present case was conducted in a vehicle between sunset and sunrise after receipt of prior information, which gave rise to reasonable belief to undertake such search. Under such circumstances, it is imperative that such prior information be reduced into writing and communicated to superior officer as required under section 42 of the Act, irrespective of the fact that the vehicle is intercepted while it is moving on a public highway or not. The Act provides for varying degrees of procedural safeguards in the matter of search and seizure in different situations. While search and seizure in a public place including public conveyance may be effected under the less stringent provisions of the Act, a more intrusive search into private premises, conveyances or enclosed spaces between sunrise and sunset envisages a stricter procedure namely, recording of prior information into writing and communication thereof to a superior officer. A fine balance is struck between the state's public duty to investigate a crime and preservation of public order and safety in the one hand and the fundamental right of privacy of an individual on the other hand. The place, time and other circumstances attending the search and seizure are relevant factors for the legislature to prescribe differing standards of safeguards to an individual who may be exposed to search under the Act. In the facts of the present case, where search and seizure was preceded by prior information received by P.W. 2 while at the police station and not by way of a chance recovery from a vehicle in transit, I am of the opinion that the procedural safeguards under section 42 of the Act are attracted. In Karnal Singh (supra) it was held that compliance of procedural requirements under section 42 of the Act are to be decided on a case to case basis. While total non compliance of section 42 is impressible and vitiates trial, substantial compliance thereof would not affect the prosecution case. I have judged the instant case from such perspective. P.W.2 deposed that he reduced the prior information into writing and communicated it to his superior officer. His version is corroborated by P.W. 7, another member of the raiding party who stated that the prior information which had been reduced into writing was dispatched to the superior officer, Mr. Keishing. It is pertinent to note neither the original document wherein the prior information was recorded was produced in court nor Mr. Keishing was examined in the instant case. Only a photocopy of the document which remained unproved was produced in court. P.W.2 sought to fill up this lacuna in the prosecution case by stating that the original was not available in his office as the same had been dispatched to his superior. In the absence of original document wherein the prior information is alleged to have been reduced into writing by P.W.2, the contents of the said document cannot be said to have been proved by production of a photocopy thereof. No evidence has been led on behalf of the prosecution to satisfy the conditions precedent for treating the said photocopy as secondary evidence. Mere statement of P.W. 2 that the original document is not available in his office as it had been dispatched to his superior cannot satisfy the requirement of section 65(c) of the Evidence Act that the said document is lost or destroyed or any other condition envisaged in section 65 of the said Act. Unfortunately, the trial judge erred in law in looking into the contents of the photocopy of the document to come to a finding that the prior information as deposed by P.W. 2 had been reduced into writing. Furthermore, the superior officer Mr. Keishing, to whom it is claimed the original document was dispatched, was not examined. Under such circumstances, I am constrained to hold that the 'best evidence' with regard to compliance of section 42 of the NDPS Act, namely the original document and the evidence of the superior officer have been withheld in this case. It is trite law that the contents of a document can only be proved by producing the document itself, that is, primary evidence or its secondary evidence. No application was filed on behalf of the prosecution to admit the photocopy as secondary evidence. When any matter is required by law to be reduced in the form of a document, no evidence apart from the document itself or secondary evidence thereof in terms of section 65 of the Evidence Act is admissible (see section 91 of the Evidence Act). Section 42 prescribes 'prior information' to be mandatorily reduced into writing and communicated to his superior. Can compliance to such rigour of law where a matter is required to be reduced into writing by law be proved by leading oral evidence? I do not think so. If such course of action is permitted it would render the aforesaid procedural safeguard otiose and would permit the law enforcement agencies to rely on oral depositions of seizing officers with regard to its compliance without insisting on the production of the original document itself. On a similar line of reasoning the Privy Council declined to rely on the oral evidence of a Magistrate relating to a confession recorded by him under section 164 Cr.P.C. (see Nazir Ahmad vs. Emperor, AIR 1936 PC 253). It held as follows:-
"13. ...if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle. Any magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of whit he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of Section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case."
Hence, the trial judge ought not to have relied upon the oral evidence of seizing officers to satisfy himself as to compliance of section 42 of the Act. Reference to Karnail Singh (supra) by the trial judge in this regard is inapposite. Substantial compliance of section 42 of the Act as envisaged in Karnail Singh (supra) means delayed compliance of the statutory safeguards in cases of emergency. The factual matrix of the instant case does not disclose such an exigency. The ratio in the said report does not absolve the prosecution from proving compliance or substantial compliance of section 42 (as the case may be) by leading legally admissible evidence. The unproved photocopy of the document produced in court to show compliance of section 42 is not legally admissible and is of no assistance to the prosecution. As discussed earlier, requirements under section 65 of the Evidence Act have not been established, to admit it as secondary evidence. Even statutory presumption enshrined in section 66 of the NDPS Act is inapplicable in this case.
Section 66 reads as follows: -
"66. Where any document-
(i) is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or
(ii) has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government) in the course of investigation of any offence under this Act alleged to have been committed by a person, and such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the court shall--
(a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reason ably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;
(c) In a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.
The aforesaid provision presumes the execution and proof of a class of documents which are produced or furnished or seized from a person against whom such documents are tendered in evidence or when such document is received from any place outside India. Such interpretation draws sustenance from the ratio in Mohd. Alam Khan vs. Narcotics Control Bureau & Anr., (1996) CRI.L.J. 2001, wherein it was held that statement of accused recorded under section 67 of the NDPS Act is not a document seized from him so as to attract section 66 of the Act. It is nobody's case that the photocopy of the document wherein the prior information was reduced in writing by P.W. 2 is produced or furnished or seized from the appellants against whom it is sought to be tendered during trial. Neither has such document been received from a place outside India. Hence, the aforesaid provision cannot come to the aid of the prosecution to relieve it of the burden of proving the said document under the ordinary law of the land by producing the document itself or leading secondary evidence thereof. In the light of the aforesaid discussion, I am constrained to hold that the prosecution has failed to lead the best evidence with regard to compliance of section 42 of the NDPS Act in the matter of search and seizure of narcotic substance from the appellant. Neither the original document recording prior information has been produced nor the superior officer Mr. Keishing, was examined. No explanation is forthcoming on behalf of the prosecution in that regard. On the other hand, oral evidence of the members of the raiding party with regard to the contents of the document wherein prior information was reduced in writing which, in my considered opinion, is inadmissible was relied by trial judge. Hence, I hold that the prosecution has failed to lead reliable and legally admissible evidence to prove the compliance of the statutory safeguards under section 42 of the NDPS Act in the matter of search and seizure from the appellant rendering the prosecution case vitiated in law.
Statements of appellants recorded under section 67 of NDPS Act:-
The other species of evidence relied on by the prosecution are the purported voluntary statements of the appellants recorded by P.W. 2 and 5. Prosecution witnesses stated that after the recovery of the contraband articles from the vehicle in the control and custody of the appellants, notices under section 67 of the NDPS Act were served upon the appellants. Thereafter, their statements were recorded by P.W.2 and 5 at the NCB office. Though P.W. 7 deposed as the appellants were unaware of the NCB office, they had voluntarily accompanied the members of the raiding party to the said office, P.W. 5 candidly admitted in cross-examination the appellants were detained at the spot at Helabattala, Barasat and were in their custody when they admitted their guilt at NCB office. Thereafter, they were arrested. It is argued that the appellants had not resiled from the voluntary statements in the course of their examination under section 313 Cr.P.C. I am unable to accept such contention. I have gone through the materials on record and I find that on the first day of their production before the trial Court, that is, on 27.9.2006 the appellants had filed applications retracting their statements and had alleged that they had been physically assaulted while in the custody of NCB officials. Trial Court directed for medical examination of the appellants. Even during cross-examination of prosecution witnesses questions were put to them seeking to improbabilise the said statements. The appellants denied making such statements during their examination under section 313 Cr.P.C. Hence, from the materials on record there is no escape from the conclusion that the appellant had been detained and were in the custody of the NCB officials when their statements were recorded and that they had retracted from such statements at the earliest opportunity on being produced before the Court for the first time and had alleged that they had been assaulted while in custody. It may be true that they were formally arrested and the statements were recorded but I find it difficult to accept the proposition that they were free agents when they made statements admitting their guilt to the NCB officials in the fact of the instant case. It cannot be denied that the appellants had been detained and were in the custody of the NCB officers at the time when the statements were recorded. In Union of India Vs. Bal Mukund & Ors. (2009) 12 SCC 161, a three-Judge Bench of the Apex Court held as follows: -
"24. The situation in which such purported statements have been made cannot also be lost sight of. The purported raid was conducted early in the morning. A large number of police officers including high ranking officers were present. Search and seizure had been effected. According to the prosecution, each of the respondent Nos. 1 and 2 were found to be in possession of 10 Kg. of narcotics. No information was sought for from them. It is doubtful whether they had made such statements on the road itself. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act.
25. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.
26. ...Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.
[See also Noor Aga v. State of Punjab and another [2008 (9) SCALE 681]. The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration."
The aforesaid ratio applies with full force to the fats of the case. The said repost distinguishes Kaniahalal vs. Union of India, (2008) 4 SCC 668 (a two Judge Bench) holding that the police officer who recorded confession had not been cross-examined on such score. In the present case, both P.W.s 2 and 5 who recorded statements under section 67 of the Act were cross-examined extensively. While in Kaniahalal (supra) search and seizure of narcotic substance was conducted after due compliance of all safeguards and the factum of recovery corroborated the confession of the accused, in the present case, search and seizure is vitiated due to absence of proof of compliance of section 42 of the Act and the result thereof cannot be used as corroborative evidence. Hence, the prosecution has to fall back only on the statements of the appellants recorded under section 67 of the Act to salvage its case. Factum of recovery of narcotic substance from the appellants pursuant to an illegal search cannot be used for corroboration of the reported statements. Furthermore, the appellants were in custody of NCB officials when they made such statements within the confines of the NCB office.
In Noor Aga Vs. State of Punjab & Ors., (2008) 16 SCC 417, a Bench of the Apex Court held that a Customs Officer is a Police Officer in view of section 53 of the NDPS Act and statement recorded by him of a person in custody is hit by section 26 of the Evidence Act. Such view being in conflict with the ratio in Raj Kumar Karwal vs. Union of India, (1990) 2 SCC 409, wherein it was held that an officer of NCB is not a police officer, the said question has been referred to a larger Bench in Tofan Singh vs. State of Tamil Nadu, (2013) 16 SCC 31. Even if, an officer of the NCB is not held to be a police officer, it is undeniable that such an officer is a person in authority in relation to the appellants who had been detained at the spot and were in their custody at the time of making statement under section 67 of the Act.
Under such circumstances, in Francis Stanly Vs. Intelligence Officer, Narcotic Control Bureau, (2006) 13 SCC 210, the Apex Court held that such a confession must be subjected to very close scrutiny before being relied upon. It held as follows:-
"15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required."
I have examined the confession of the appellants recorded by P.W.s 2 and 5 in that perspective. Not only were the appellants in the custody of the NCB officials when they made the statements but on the first day of their production before the trial court they had retracted their statements and alleged that they had been subjected to physical assault while in custody. Under such circumstances, the court had directed medical examination of the appellants. These circumstances cast a spectre of doubt on the voluntary nature of the statements and I am hesitant to rely on such statements as the sole basis of conviction of the appellants in the factual matrix of the case.
In M. Prabhulal vs. Directorate of Revenue Intelligence, (2003) 8 SCC 449, Ram Kumar vs. Central Bureau of Narcotics, (2008) 5 SCC 385, Union of India vs. Satrohan, (2008) 8 SCC 313 and Ram Singh vs. Central Bureau of Narcotics, (2011) 11 SCC 347, reliance was placed on statement of the accused recorded under section 67 of the NDPS Act as they had not been retracted immediately. On the other hand, retraction of the statements of the appellants in the instant case has been made at the earliest opportunity and it was alleged that they had been assaulted while in custody. Under such circumstances, I am not willing to rely on the purported statements of the appellants recorded by NCB officers while they were in custody and which had been retracted by them immediately on the first day of their production before the court on the allegation that they were subjected to physical assault when they were in custody.
Defence evidence - an analysis:-
Defence evidence recorded in the instant case gives rise to a piquant state of affairs. Two of the defence witnesses, namely, D.W.s 2 and 4 are members of the law enforcement agency of the State. They have deposed against the prosecution case, thereby pitting one investigating agency against the other. The trial judge declined to accept the defence evidence on the ground neither the version of D.W.s 2 and 4 nor the general diary entry No.1038 (Exbt. A) speak of arrest of the appellants from the residence of one of the appellants, namely Prasun Chakraborty. The trial court while rejecting the defence version also commented on the absence of mention of time in the general diary entry (Exbt. A) and the haphazard manner in which the entries had been recorded in the general diary book. Although the statutory presumption under section 114 Illustration (e) of the Evidence Act presuming regularity of official acts is applicable both to the members of the State police as well as to the Central agency, namely, NCB, however, in the absence of the factum of arrest being noted in general diary entry No.1038 (Exbt. A) or in the oral evidence of D.W.3, I am inclined to accept the reasons of the trail judge in rejecting the defence evidence. However, it is trite law that prosecution must stand on his own legs and not on the weakness of the defence version. Compliance of mandatory requirements under section 42 of the NDPS Act relating to search and seizure have not been proved in the instant case. Factum of recovery from the appellants not being proved in accordance with law, it is unsafe to rely on the statements of the appellants recorded by NCB officials while they were in custody and which were retracted at the earliest opportunity alleging physical assault.
Under such circumstances, I am constrained to hold that the prosecution has not been able to prove its case beyond reasonable doubt.
As the appeal has been decided in favour of the appellants on the aforesaid issues, I choose not to express any opinion with regard to the submission of the appellants on that in view of the law declared in Mohan Lal (supra). The prosecution case stands vitiated on the premise that a member of the raiding party had investigated the crime. It is also pertinent to note that a subsequent two Judge Bench of the Supreme Court in Mukesh Singh vs. State (Narcotic Branch of Delhi), Special Leave Petition (Criminal) Diary No(s). 39528/2018, has doubted the ratio in Mohan Lal (supra) and has referred the matter for reconsideration by a larger Bench.
The appeals are accordingly allowed.
The appellants shall be released from custody at once if not needed in connection with any other case on execution of a bond to the satisfaction of the trial court which shall be enforced for six months in terms of Section 437A Criminal Procedure Code.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
I extend my appreciation for the able assistance rendered by Mr. Sanjoy Bardhan as amicus curaie in disposing of the present appeal.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.)