Calcutta High Court (Appellete Side)
Ashim Baidya vs The State Of West Bengal & Ors on 3 May, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Manojit Mandal
CRA 1016 of 2013
Ashim Baidya
Vs.
The State of West Bengal & Ors.
For the appellant : Mr. Arindam Sen
Mr. Sandeep Prasad Shaw,
Mr.Prokash Ch. Paul.
For the N.C.B. : Mr. Uttam Basak
Heard on : 22.04.2019
Judgment on : 03.05.2019
Manojit Mandal J.
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This appeal is directed against the judgment and order dated
29th November, 2013 and 30th November, 2013 passed by the learned
Additional District & Sessions Judge, 6th Court, Barasat, North 24-Parganas,
in Case No. N-189 of 2010 convicting the appellant for commission of offence
punishable under Section 20 (b)(ii)(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as NDPS Act) and sentencing
him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1
lakh, in default, to suffer rigorous imprisonment of 2 years.
2. On the basis of the written complaint (Exhibit 8) made by PW 3 Pranit
Sarma, Intelligence Officer, NCB, EZU, Kolkata, the case was registered. It is
alleged that Nirbhay Singh (PW 6), then posted as Superintendent, NCB,
EZU, got a secret information that appellant would come to Bongaon
Hospital area in the morning of 22.12.2010 for receiving Heroin from a
person of Nadia. The information was reduced in writing and superior officer
was intimated and on receiving necessary order, a batch of NCB Officers led
by PW 6 proceeded to a raid on 22.12.2010 at about 3:00 hours and reached
at Bongaon Hospital area at 6:00 hours and ambushed. At about 8.45
hours, the NCB Officers noticed appellant entering the Bongaon Hospital
area holding a nylon bazar bag. The appellant was intercepted in front of
parking area of Ambulance, Bongaon Hospital, District-North 24-Parganas,
and after knowing about his name and whereabouts, the officers suspecting
possession of narcotic substances, expressed their intention to search the
appellant. The appellant was acknowledged about his right to be searched in
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front of a Gazetted Officer or Magistrate in writing but the appellant denied
to be searched before any such officer. Before conducting search the NCB
officers called two onlookers as independent witnesses and then the
appellant was offered to search the NCB officers and staff before such
search, but the appellant declined. Thereafter, the appellant handed over
voluntarily nylon bazar bag and a mobile phone to the NCB officers. On
search of the said bag, a transparent polythene packet containing Ash
coloured powder substance believed to be heroin/derivatives of opium was
recovered and after testing of a small quantity by the drag detection kit, it
responded positive to the test of heroin. On weighment, the recovered heroin
came to be 1.025 kgs and on spot interrogation, the appellant disclosed that
heroin was handed over to him outside the hospital and he could not say the
name of that person but the appellant disclosed that he was engaged in
dealing with the narcotic drug business with his friend, Sudip Dhali and
Saimuddin of Palasi. The said substance and the mobile phone were seized
by the Officers. It is stated that samples being 5 grams each were drawn and
seizure memo was prepared and main bulk were separately packed, sealed
and labeled. A notice under Section 67 of the NDPS Act was served at the
spot upon the appellant to appear at the NCB Office, Kolkata on 22.12.2010
at 18.00 hours for further investigation. After completion of those formalities,
the Officers and staff conducted search operation at the residential premises
of the appellant and also the stationary shop of Sudip Dhali but no
contraband was recovered. The said Sudip Dhali was not available. In
response to the notice issued to the appellant, he tendered his voluntary
statement at the office of NCB, Kolkata, thereby admitting his guilt and on
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reasonable belief, the appellant was arrested and produced before the Court.
Subsequently, on 24.05.2010, the sample was sent for chemical examination
and the result came positive towards presence of heroin and accordingly, the
complaint was filed before the Court on 03.05.2011.
3. PW 7 Sri Debu Bandopadhyay being the Intelligence Officer at the
Office of the NCB, Kolkata took over the case as the Investigating
Officer(hereinafter referred to as I.O.) The samples sealed in packets were
presented before the Special Court for sending the same for chemical
analysis. The samples were sent to Chemical Laboratory, Customs House,
Kolkata, for chemical examination. The report (Exhibit 21) submitted by the
chemical examiner (PW 8) was produced before the Court and the report
found the sample of narcotic/contraband substance. After concluding the
investigation PW 7 submitted the charge-sheet on 03.05.2011 whereon
cognizance was taken. The case came on the file of the learned Trial Judge
for disposal.
4. To bring home the charge the prosecution examined 8 prosecution
witnesses. PW 1 Tusher Kanti Biswas is the Intelligence Officer, NCB office,
EZU Kolkata. PW 2 Ashutosh Pahari is Intelligence Officer at the office of
NCB Kolkata. PW 3 Pranit Sarma is the Intelligence Officer at the office of
NCB, EZU, Kolkata, who lodged the written complaint (Exhibit 8). PW 4
Chanchal Sarkar is also Intelligence Officer. PW 5 is another Intelligence
Officer. Both PW 4 and PW 5 are the members of the raiding team. PW 6
Nirvoy Singh is the leader of the raiding team. PW 7 is the Investigating
Officer. PW 8 Bijendra Kumar is the chemical examiner who examined the
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sample and submitted the chemical examination report (Exhibit 21). The
Prosecution witnesses nos. 1, 2,4,5,6 and 7 have narrated as to what
happened when the appellant was first searched at Bongaon hospital. On
analyzing the evidence, both oral and documentary, produced at the trial by
the prosecution, the Trial Court held the charges duly proved.
5. Mr. Arindam Sen, learned Advocate appearing for the appellant
submitted that the seizure of narcotics from the possession of the appellant
has not been proved. He further submitted that the public witnesses of the
alleged search and seizure were not examined before the learned Court below
and, therefore, the search and seizure was not at all proved and that all the
witnesses excepting chemical examiner were of the same department and the
Court should not make a firm opinion with regard to the commission of
offence on the basis of the evidence led by them. He further submitted that
the prosecution did not examine any doctors, nurses and other staff of the
hospital though the search was allegedly done inside hospital premises. He
further submitted that the malkhana registrar has not been proved to show
safe custody of the alamats, therefore, the prosecution case should fail and
appellant should be acquitted from this case.
6. On the other hand, Uttam Basak learned Advocate appearing for the
Narcotic Control Bureau, submitted that evidence on record establishes the
fact that the heroin was seized and after samples were drawn, they were
sealed. Seizure was effected from a public place and did not attract the
provisions of Section 42 and 50 of the NDPS Act. Seizure had been effected
in the presence of Superintendent, Narcotic Control Bureau, EZU, Kolkata.
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He further submitted that the appellant failed to rebut the statutory
presumptions as to the culpable mental state and commission of the offence
and, therefore, the conviction and sentence does not call for any interference.
7. PW 3 is the informant in this case and his evidence disclosed that on
03.05.2011he submitted the complaint before the learned Court in official capacity and the complaint was typed at the NCB office Kolkata by him and it bears 5 pages and in all the pages he put his signatures with his official seal. He has proved the complaint (Exhibit 8) into evidence.
8. PW 6 is the leader of the raiding team and his evidence disclosed that on getting secret information regarding coming of the appellant near hospital at Bongaon in connection with receiving contraband article, a raiding team was constituted and they reached at Bongaon Hospital and encircled the appellant and appellant was intercepted. On interrogation the appellant disclosed possession of contraband inside his bag. The NCB officer opened the bag after voluntarily handing over the same by the appellant. The PW 7 took out a small quantity of such powder substance and tested the same through narcotic drug testing kit and the test result revealed presence of opium derivative i.e. heroin. Then the contraband was weighed at the place of occurrence by the weighing scale taken by the NCB officers and the same was found to be of 1.025 killograms. Two samples of 5 grams each were drawn as per the laid down procedure from main bulk which were packed, sealed and labeled. Copy of seizure list was handed over to the appellant. His evidence further disclosed that notice under Section 67 of the NDPS Act was served upon the appellant by PW 7. The appellant accompanied them 7 and attended their office at Kareya Road. And there appellant tendered his voluntary statement (Exhibit 12) in his presence. This witness was subjected to excessive cross-examination by the defence.
9. PW 1, Tusherkanti Biswas, is the intelligence officer of NCB, EZU, Kolkata. His evidence also supports the prosecution case regarding the formation of raid team by NCB officer including the Superintendent, NCB and they proceeded after obtaining necessary permission from competent authority and reached at Bangoan Government Hospital at about 8:45 a.m.. NCB Officers intercepted the appellant who was holding a nylon bazaar bag in his right hand. His evidence also supports the story of recovery of heroin weighing 1.025 killograms from the appellant and, thereafter, seizure list was prepared by the NCB Officer. The samples were taken in sealed envelopes and copy of seizure list was handed over to the appellant.
10. PW 3 is another Intelligence Officer of NCB, EZU at Kolkata. He has duly corroborated the evidence of PW 6 by saying that they got secret information to the effect that appellant would arrive at Bangaon Hospital for delivery of some contraband goods. A joint team was constituted and they reached at Bangaon Hospital at about 5.30 a.m. and at about 8:00 a.m. on 22.10.2010 they noticed the appellant was entering into the hospital with a bag in his right hand. Appellant was intercepted and was searched. After search some ash coloured powder substance was found and the said substance was tested by narcotic drag detection kit and the result came positive to the test of heroin. Samples of 5 gms each were taken after taking 8 it out from the said powder substance. Seizure list was prepared and copy of the seizure list was handed over to the appellant.
11. PW 7 is the I.O. in this case and he has duly supported the prosecution case of the recovery of 1.025 killograms of heroin (diacetyl morphin) from the appellant and as well as preparation of seizure list and the samples and he has also stated about compliance of Section 50 of the NDPS Act prior to recovery of the heroin (diacetyl morphin). He has also stated about the recovery of heroin from the appellant. Evidence of this witness also disclosed that he served upon the appellant a notice under Section 67 of the NDPS Act to appear at NCB office at Kolkata with a direction to him to appear and the said notice was served upon the appellant at about 18:00 hours. Appellant accompanied them to their office and the appellant made voluntary statement before them and, accordingly, appellant disclosed certain facts which were duly recorded in writing by PW 5. On being confirmed about the commission of the offence he arrested the appellant at about 22:30 hours. Evidence of this witness also discloses that the appellant was produced before the learned Special Court along with seized articles and samples and a prayer was made for sending the sample to FSL for chemical analysis.
12. Apart from the above, all other prosecution witnesses are the intelligence officers of NCB except Bijendra Kumar (PW 8) and are members of raiding team and they have constantly supported the recovery of heroin and taking of samples from the appellant. In spite of their cross- 9 examination, there is nothing to doubt and/or discredit their evidence regarding recovery from the possession of the appellant.
13. PW 8 Bijendra Kumar, chemical examiner, has deposed that on 22/02/2011 he tested a sample allotted to him bearing Laboratory no. 2285/SZD(N)-200 dated 24.12.2010. He received the test memo along with sample. The test procedure was conducted by him and he reached to the conclusion that the sample referred to answered positive to the test of heroin (diacetyl morphin). He has proved the chemical examination report dated 22.02.2011 (Exhibit 21) into evidence.
14. From perusal of the Lower Court Record, it appears that the appellant was produced in Court on 23.12.2010 i.e. next day of seizure and recovery and on that day I.O. prayed for sending samples to FSL.
15. Discussions made above show that evidence of prosecution witnesses are consistent on the point of recovery from the appellant, preparation of seizure list and drawing of samples and sealing thereof. The testimonies of these official witnesses cannot be discarded for the reasons that they are members of the NCB ,EZU, Kolkata rather their evidence need to be subjected to strict scrutiny and as far as possible be corroborated in material particulars to rely on them. This view has been affirmed by Hon'ble Apex Court in the case of Pradip Narayan Madgaonkar vs. State of Maharashtra (1995) 4 SCC 255 and by several other decisions also.
16. It was vehemently contended by Mr. Arindam Sen, Senior Advocate appearing for the appellant, that the statement on basis whereof the 10 appellant has been found guilty is not voluntary and thus his conviction cannot be sustained. Exhibit 12 is the statement of the appellant recorded by PW 5. The said statement of the appellant has been recorded by officer of NCB, EZU, Kolkata who is not police officer at all within the meaning of Section 25 of the Evidence Act, 1872. The confessional statement recorded by such officer is admissible in evidence in the above circumstances. Learned Counsel though not questioning the admissibility of the said statement contends that the same was obtained by threat and force and is involuntary and, therefore, the conviction of the appellant cannot be sustained. On perusal of the Lower Court Records it is found that the appellant did not make any complaint before the learned Lower Court before whom he was produced complaining of any torture or harassment or threat. It is only when his statement was recorded by the learned Trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about torture was taken. I also find that besides the statement on record under section 67 of the NDPS Act, the other materials on record are sufficient to support the conviction passed by the learned trial judge. So, the submission as made by the learned Advocate appearing for the appellant cannot be sustained.
17. Learned lawyer Mr. Arindam Sen appearing for the appellant further urged that none of the doctors and staff or any other persons from Bongaon Hospital were made as witness in the present case and there were doctors and other official staff of the hospital but none were informed or made a part at the time search and seizure. So, the prosecution case cannot be accepted 11 as true. There is no doubt that doctors and hospital staff of Bongaon Hospital are not the witnesses in this case. But only for that reason the case of the prosecution cannot be thrown away. It would be wholly unrealistic to suggest that if the prosecution case is not supported by such independent witnesses it should not be taken to be true. In my opinion, the real question is that once witnesses examined on oath by the prosecution is believed and the evidence so adduced appears to be trustworth, the credibility of the witnesses already relied upon will not be affected for the non-examination of independent doctors, nurses and staff of the Bongaon Hospital. On reading the entire evidence of the prosecution witnesses nos. 1,3,6 and 7, it appears that their evidence could not be impeached or discredited by cross-examination or by any adverse evidence. So, there is no reason to disbelieve them. This apart, the prosecution was not legally under any obligation to examine the said doctors, nurses and staff. The prosecution has observed the formalities prescribed under law and, therefore, no weightage can be given to such submission.
18. Learned Lawyer appearing for the appellant further urged that the investigation in the instant case has been conducted in a very perfunctory manner inasmuch as the procedure as laid down under Section 50 of the NDPS Act has not been complied with. In the instant case, there is no applicability of Section 50 of the Act, since the narcotic substance was recovered from the accused kept in the bag being carried by him. Reliance in this context may be placed upon the judgment of the Hon'ble Apex Court of in the case of State of Himachal Pradesh vs. Pawan Kumar reported in 12 (2005) 2 C.Cr.LR (SC) 41 wherein the Hon'ble Court has been pleased to hold as follows:-
" A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc.. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act".
19. Very recently, the Hon'ble Apex Court in Navdeep Singh Vs. State of Haryana reported in (2003)2 C.Cr.L.R.-(SC) 286 has been pleased to hold that since the charas was recovered on search of the scooter of the accused and not from the person of the accused, therefore Section 50 of the NDPS Act would not apply in that case.
20. However, in this matter, additionally, the prosecution has proved that the accused was intimated and conveyed in writing about his right to be 13 searched before any Gazetted Officer or Magistrate (Exhibit 4) and the accused by the letter of reply agreed to be searched before the officers (Exhibit 5).
21. In the background of settled principle, if materials available in this case is concerned, it will appear that the contraband article was seized from the possession of the appellant after following the procedure prescribed under Section 50 of the NDPS Act as he has been noticed to examined by the Magistrate or Gazetted Officer and on his consent, he has been searched and recovery of contraband article was made. Further, the samples have been prepared and sealed and on that the signature of the witnesses as well as the appellant has been taken. Further, the seized article was produced before the learned Lower Court along with the appellant on the very next day and after obtaining permission of the Lower Court, the article was sent to FSL. Report of the FSL (Exhibit 21) clearly shows that article found in samples is heroin (diacetyl morphin) which is contraband under the NDPS Act. All the aforesaid facts, if taken into consideration, clearly established that seizure of heroin (diacetyl morphin) from the appellant is made following the prescribed procedure under the NDPS Act and as such, there is legal evidence of the recovery from the appellant. Hence, there shall be a presumption under Sections 35 and 54 of the NDPS Act.
22. Now the question that emerges is when there is legal evidence available on record of the recovery of contraband from the possession of the appellant which on chemical examination found to be heroin and there shall a presumption of culpable mental state of appellant and also with regard to 14 possession which has not been rebutted by the appellant by a cogent or reliable evidence except stating he has been falsely implicated in this case. Whether the conviction, based on the legal evidence of recovery and when there is presumption also, can be held to be unsustainable in law on the ground that independent witnesses have not been examined in this case.
23. In my opinion, once there is legal and reliable evidence of the recovery and the contraband article from the possession of the appellant, there shall be a presumption under Sections 35 and 45 of the NDPS Act raised against the appellant. Only on account of the fact that the independent witnesses have not been examined shall not vitiate the conviction, particularly, when the seized article was produced before the Court without loss of tome and as per the order of the Court, the same was despatched for chemical examination and on chemical analysis, the same was found heroins (narcotic).
24. Considering above, the facts of the present case I find that there is consistent legal evidence of recovery of heroin against the appellant leading to presumption against him and burden to dispel him has not been discharged.
25. In the light of the aforesaid discussion, I have no doubt in my mind that the prosecution has been able to prove its case beyond reasonable doubt.
26. In the result, the conviction and sentence imposed on the appellant are upheld.
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27. Period of detention suffered by the appellant during investigation, inquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
28. Accordingly, appeal is dismissed.
29. The Lower Court Record along with copy of this judgment be sent to the learned Trial Court below at once for information and taking necessary action.
30. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking.
I agree.
(Joymalya Bagchi, J.) (Manojit Mandal, J.)