Aslam Khan v. State of West Bengal — 1995 DIGILAW 304 (CAL)

JUDGMENT Asish Baran Mukherjee, J.: The appellant has been convicted by the learned Special Judge, City Civil & Sessions Court, Calcutta for an offence under s. 21 of the Narcotic Drugs and Psychotropic Sustances Act of 1985 (hereinafter referred to as the NDPS Act) and sentenced to R.I. for 10 (ten) years and to pay fine of Rs. 1 Lac in default to undergo R.I. for two (2) years by a judgment and order dated 31.3.95. 2. According to the prosecution case on 2.6.90 P.W. 5 received an information from source that some person would deliver heroin near the crossing of A.J.C. Bose Road and Kidderpore Road. He recorded the information and communicated the same to his superior officer who directed him to work out the information. Accordingly, raiding party was formed headed by P.W. 5 other members being P.W. 3 and some members of the Force. At about 14:30 hours the source pointed to a person who was riding on a motor cycle being WMZ 1995. They intercepted the cyclist on the southern side of A.J.C. Bose Road near its crossing with Kidderpore Road and disclosed their intention of searching the person. They procured two public witnesses from the passers-by. The suspect namely, the motor cyclist disclosed his identity as Md. Aslam Khan. He was given the option of search being carried out in presence of Gazetted Officer or an Executive Magistrate but he declined the offer. Thereafter, they searched the person of the suspect but found nothing incriminating. Then they proposed to search the Dicky of the motorcycle which was under lock and key. The suspect made over the key to P.W. 5 and after opening the Dicky he recovered one black coloured hand bag. It was opened and found to contain a polythene packet containing brown coloured powder suspected to be Narcotic Drug. The packet with its content was weighed and found to be 20 grams. A seizure list was prepared on the spot. The seized packet was packed, sealed and labelled in presence of witnesses. The motor cycle was also seized. The accused was put under arrest and he was taken to Hastings P.S. together with the alamats were G.D., being ROO’ 166 was made. On the basis of the G.D. Entry, P.S. Case No. 184 dated 2.6.90 under s. 21 of the NDPS Act was started against the accused. The motor cycle was also seized. The accused was put under arrest and he was taken to Hastings P.S. together with the alamats were G.D., being ROO’ 166 was made. On the basis of the G.D. Entry, P.S. Case No. 184 dated 2.6.90 under s. 21 of the NDPS Act was started against the accused. The raiding party returned to Lalbazar with the alamats and submitted a special report to O.C. Narcotics. The sealed packet was kept in the Malkhana at Lalbazar after it was entered in the relevant register by O.C. Malkhana. The motor cycle was also entered in the same register and kept in the Zimma of O.C., Malkhana. 3. After obtaining necessary permission of the learned C.M.M. the sealed packet with its contents was sent to Director of Central Public Health and Drugs Laboratory at Convent Lane, Calcutta. Subsequently, report of Chemical Analysis was received and on its basis charge-sheet was submitted under s. 21 of the NDPS Act. Cognizance was taken by the learned Chief Judge, City Civil & Sessions Court on 11.6.92. During trial charge under s. 21 of NDPS Act was framed against the accused to which he pleaded not guilty. 4. During trial prosecution examined five (5) witnesses and also exhibited certain documentary as well as material exhibit. No evidence was aduced by the defence. 5. The learned Special Judge after considering the evidence record convicted the accused and also sentenced him in the manner as already stated. 6. The appellant has challenged the conviction and sentence on several grounds namely, non-compliance of s. 50 of the NDPS Act, absence of dis-interested witness, inordinate delay in sending the alleged seized articles for chemical analysis, discrepancy about the weight of seized articles, non-observance of requirements regarding examination of the accused under s. 313 Cr.P.C. etc. The learned Defence Advocate Mr. Sekhar Bose has drawn our attention, to the discrepancy between the alleged time of occurrence appearing in the charge vis-a-vis the evidence on record and also the examination of the accused under s. 313 Cr.P.C. He points out that as per the charge the incident took place in between 14: 45 to 15 : 15 hours on 2.6.90. As per evidence he points out that the incident began at 2:30 P.M. when the motor cycle was spotted and intercepted. As per evidence he points out that the incident began at 2:30 P.M. when the motor cycle was spotted and intercepted. As per the examination or the accused under s. 313 Cr.P.C. the incident took place at 3:30 P.M. The learned Advocate for the prosecution Mr. A.R. Saha is unable to resolve the discrepancy and fairly concede that he is unable to make any improvement of the case. 7. The next point of attack by the defence is on the point of nonobservance of s. 50 of NDPS Act. The position of law is clear and it has been made more clear by a large number of decisions of different Courts including the Supreme Court. The admitted position is that s. 50 of the NDPS Act is to be observed in letter and spirit and in case of non-observance a conviction under the same Act cannot sustain. The defence has pointed out that as per the evidence of P.W. 2 stated to be a dis-interested witness picked up from the group of passers-by, no offer was made to the accused informing him of his right to be searched in presence of a Gazetted Officer or a Magistrate. The evidence of P.W. 2 on this score is that the accused was enquired whether he was willing to go elsewhere for search which he declined. This option is certainly not a compliance under s. 50 of the NDPS Act. It has been pointed out by the defence that P.W. 2 was examined on 20.7.94 while P.W. 3, an AST of Police and a member of the raiding party was examined on 1.9.94. He made considerable improvement, in as much as he stated that opportunity was given to the accused for being searched before a Magistrate or a Gazetted Officer. This is also the evidence given by P.W. 5 the leader of the raiding party as well as the I.O. of the case who was examined on 17.11.94. From this it has been argued by the defence that there was no sufficient compliance of s. 50 of the NDPS Act and the version given by the police witnesses should not be believed in view of absence of corroboration by P.W. 2, the only alleged dis-interested witness. The defence has also argued about the non-examination of other seizure witness stated to be a member of the passers-by. The defence has also argued about the non-examination of other seizure witness stated to be a member of the passers-by. It is also in evidence that there were many shops and also some Government quarters near the place of occurrence. The evidence says that no attempt was made by the Police Officer to get any person either from those shops or from those quarters as search witnesses. There is also no explanation for non-examination of the remaining public witness in whose presence search was said to have been conducted. On the other hand, the learned Advocate/appearing for the State submits that as the incriminating article was recovered not from the person of the accused but from the dicky of the motor cycle there is no necessity of giving any option to the accused of being searched in presence of Gazetted Officer or Magistrate as s. 50 of the NDPS Act according to him relates to search of person meaning thereby the body alone. We are not in agreement with the submission made by the learned Advocate appearing for the State. Apart from the plain meaning of the s. 50 of the NDPS Act the law on this point has been made clear by a good number of decisions like 1995 Cr.L.J. 1623, 1995 Cr.L.J. 1134 & 1995 C.Cr.LR, (SC) 1. 8. We subscribe to the view expressed by the learned Judges in the aforesaid cases. Besides the evidence of the P.W. 5 also will show• that at first the raiding party searched the person of the accused and when they did not find anything they searched the dicky of the motor cycle. Therefore, we over-rule the objection raised by the learned Advocate for the State and we come to the conclusion that in every case of search be it person or of a receptacle suspected to contain either any Narcotic Drug or any Psychotropic Substance in the possession of a person observance of procedure laid down in s. 50 of the NDPS Act is mandatory. The evidence given by the three P.W.s namely P.W. 2, P.W. 3 & P.W. 5, on this point has been discussed. The evidence given by the three P.W.s namely P.W. 2, P.W. 3 & P.W. 5, on this point has been discussed. The version given by P.W. 3 and P.W. 5 does not find support from P.W. 2, P.W. 3 went a step further from P.W. 5 in as much as according to him the Police Officers at first get themselves searched by public witnesses before conducting search of the accused. It has already been stated that the other public witness has not been examined and there is no explanation for this omission. In the circumstances, we have grave doubt as to the observance of s. 50 of the NDPS Act in this case. 9. The learned Advocate for the defence has drawn our attention to the description of incriminating article said to have been recovered so far as it is disclosed from the evidence of the P.W.s particularly the police witnesses. It has been argued that as per their evidence it was in the shape of Brown Powder contained in a Polythene Packet which was found in a sealed condition and the entire thing was kept in a black rexin bag which was lying inside the dicky of the motor cycle. The evidence of P.W. 3 and P.W. 5 is consistent about the quantity and the nature of the receptacle containing the incriminating article and the description of article itself. With this background our attention has been drawn to the report of the public analyst (exhibit 1.) which has been proved by the P.W. 1 the Scientific Officer attached to State Drugs Control formerly known as CPHL. A scrutiny of the report reveals that the gross weight of the sample was 17.4350 grams and the description of the article received is one Polythene Packet containing Blackish Brown Gami substances". The learned Advocate has argued that the quantity as also the nature of the container and also the nature of the substances of the alleged incriminating article all defer from the evidence given by the Police witnesses themselves. It may be pointed out that it is 20 gms. as per P. 3 & P.W. 5. The learned Advocate has argued that the quantity as also the nature of the container and also the nature of the substances of the alleged incriminating article all defer from the evidence given by the Police witnesses themselves. It may be pointed out that it is 20 gms. as per P. 3 & P.W. 5. Prosecution did not think it necessary to obtain any clarification from P.W. 1 who would have been competent to say as to whether there is any scope for loss of weight of the article due to storage as also for change of the Powder into a sticky substance. But this has not been done. From the above it has been argued before us that the article which was alleged to have been seized from the possession of the accused is not the article which was examined by the Scientific Officer. There is considerable substance behind this argument and the prosecution has no explanation for this discrepancy with regard to the volume, colour and nature of the article. It may be stated that as per P.W. 5 entire quantity of a Brown Powder in sealed Polythene Packet was labelled and sent to Public Analyst. 10. It has also been argued for the defence that the manner in which the article alleged to have been seized was treated by the prosecution from the time of alleged seizure to the date of sending the same for chemical analysis. There was every scope for manipulation. It may be recalled that the article was seized on 2.6.90. From the report of Public Analyst it appears that the said article was received by them on 4.1.91. There is absolutely no reason for keeping the article in the Malkhana as alleged for such a long period. The evidence on this point as we get from P.W. 5 is far from happy. We get from him that the seized article that is Brown Powder was not produced before the learned Magistrate. A scrutiny of s. 52A of the NDPS Act shows that it is mandatory to produce the same along with inventory of the article before the Magistrate. We get from P.W. 5 that he himself deposited that alamat in the Lalbazar Malkhana but he admits that there is no endorsement by him in the Malkhana Register to show that he actually deposited the same there. We get from P.W. 5 that he himself deposited that alamat in the Lalbazar Malkhana but he admits that there is no endorsement by him in the Malkhana Register to show that he actually deposited the same there. In course of his examination 'in chief he stated that he sent the sea led packet of Brown Sugar for Chemical Analysis to the Director, of the Laboratory but in cross-examination he stated that Inspector Shri Sunit Chowdhury who at the relevant time was O.C., Malkhana actually withdrew the alamats for sending the same to the Laboratory for Chemical Analysis. Therefore, the evidence is discrepant. This Sunit Chowdhury has not been examined and there is also no explanation for this omission. It is not disputed that in a case under NDPS Act journey of the incriminating article from the time of seizure to the Laboratory need be explained in details so as to eliminate any chance of manipulation or mistake. In the present case this procedure has not been followed. The non-observance of the procedure coupled that the discrepancy with regard to the weight, the nature of the receptacle and also the texture of the article at the time of seizure and as found by the Chemical Analyst raises considerable doubt about the genuineness of the article itself. As such there is considerable substance behind the defence argument that the article alleged to have been seized from the possession of the accused was not sent for Chemical Analysis. 11. Another peculiar feature of this case is that P.W. 5 who is stated to have received information from source which led to the recovery of the incriminating article not only headed that raiding party but also investigated the case and submitted charge-sheet. The practice of the complainant taking the role of investigator has been deprecated time and again. For obvious reason. The complainant shall naturally try to rope in suspect by means which may not be according to law. This is the reason for which this sort of infirmity is bound to reflect on the credibility of the prosecution case itself. 12. It has been argued by the learned Defence Advocate that no opportunity has been given to the defence to adduce evidence. This is the reason for which this sort of infirmity is bound to reflect on the credibility of the prosecution case itself. 12. It has been argued by the learned Defence Advocate that no opportunity has been given to the defence to adduce evidence. In support of his contention he has drawn our attention to the examination of the accused under s. 313 Cr.P.C. On a scrutiny of the same it appears to us that it suffers from more than one defects. No caution appears to have been given to the accused before the starting of the examination which is mandatory. We have already shown that in question No. 1 the time of incident has been put at 3:30 P.M. which is complete deviation from the time as mentioned in the charge as also the evidence on record. The last question which has been put to the accused namely question No.7 reads thus “do you like to state anything else ?”, but no where it has been stated whether the accused intends to adduce any evidence in support of his defence. It is true that it is not obligatory to put such question in course of examination to an accused but in such case it must be clearly stated in the order-sheet that the accused was given opportunity to adduce any evidence, oral or documentary. We have carefully scrutinised the order being No. 28 dated 6.1.95 which is the relevant one. It has simply been stated "the accused is examined under s. 313 Cr.P.C. Accused declines to adduce defence witness”. Plain meaning of the same appears to be that in course of examination under s. 313 Cr.P.C. the accused was asked as to whether he would like to adduce any evidence which he declined. We have shown that no such question was put to him. The order-sheet does not reveal that either the accused himself or the learned Advocate was given the offer to adduce any evidence. The irrestible conclusion will be that the defence has not been given any scope to adduce evidence. 13. The learned Advocate for the State has argued that the defence has taken an alibi in the shape that he was hauled up from his house and not from the place as stated by the prosecution. Firstly, this is not an alibi. It is simply the defence version. 13. The learned Advocate for the State has argued that the defence has taken an alibi in the shape that he was hauled up from his house and not from the place as stated by the prosecution. Firstly, this is not an alibi. It is simply the defence version. Secondly, the defence cannot cash in from such a suggestion simply because no opportunity was given to the defence to adduce evidence in- support of this case. 14. There is another aspect in this case which was not argued by the learned Advocate for the defence. As per P.W. 2 the Police Officer chased the motorcyclist who was speeding away and in course of chase the motor cycle was intercepted. This part of evidence does not find any place in the deposition of P.W. 3 or P.W. 5 This also shows that P.W, 2 in all probability was not at the time of alleged seizure. A scrutiny of evidence given by P.W. 2 will show that he was not required to traverse the relevant crossing which is the alleged place of incident for going to his shop from his house. He says that on 2.6.90 at about 2.30 P.M, he was going from Kidderpore towards Hastings when the incident took place. He is a businessman having his shop in Kidderpore Market. There is no explanation why he was there at such time leaving his shop. Therefore, he is at least a chance witness who inspires no confidence. We have already shown that the alleged place of occurrence as per the evidence on record is busy one and there are shops in the locality and also some Government Quarters but no attempt was made to get the assistance from them who are permanent residents of the locality. Lastly the P.W. 3 in course of cross-examination categorically stated that no independent witness was requisitioned before holding search and seizure. This given support to the defence contention that the so called search witness namely P.W. 2 is at the beck and call of Police and is not an independent witness. 15. On a careful analysis of the evidence on record we come to the conclusion that the prosecution has not been able to prove the charge against the accused appellant beyond all reasonable doubt. There is considerable doubt about the observance of procedure laid down in s. 50 of NDPS Act. 15. On a careful analysis of the evidence on record we come to the conclusion that the prosecution has not been able to prove the charge against the accused appellant beyond all reasonable doubt. There is considerable doubt about the observance of procedure laid down in s. 50 of NDPS Act. There is also grave doubt as to whether the article alleged to have been seized from the accused was actually sent for chemical analysis. On the other hand we have shown the particulars of the article received by the chemical analyst and we are of opinion that the Article seized and the article received by the chemical analyst is not identical. There is also non-observance of s. 52A of the NDPS Act. No attempt was made to take the help of independent witness. For all these reasons the appeal need be allowed and the conviction cannot sustain. 16. Before parting with the record it is necessary to express out concern about the manner in which case under the NDPS Act are being treated at the stage of investigation and also at the stage of trial. The importance of strictly administering the NDPS Act needs no emphasis. The menace of drug is global phenomenon and in the absence of the serious effect from all concerned the menace can not be stopped. The evidence under discussion really reveals the casual manner in which the case was treated by both the vestigating machinery as well as by the prosecution at the time of trial. 17. We shall be failing in our duty if we do not record our dis-approval about the manner in which the case was treated at the trial stage both by the prosecution and also by the learned Trial Judge. A scrutiny of the order-sheet reveals that prosecution was taking unnecessary time for submission of report in the final form. At one stage the learned Chief Judge, City Civil & Sessions Court, had to pass a lengthy order against the omission on the part of the I.O. to deal with the case and the Commissioner of Police, Lalbazar had to be Informed. When the conduct of the I.O. In dealing with the case so as to put Investigation on bails. At one stage the learned Chief Judge, City Civil & Sessions Court, had to pass a lengthy order against the omission on the part of the I.O. to deal with the case and the Commissioner of Police, Lalbazar had to be Informed. When the conduct of the I.O. In dealing with the case so as to put Investigation on bails. It also appears that at the trial stage the prosecution was taking time again and again and the learned Judge had given several dates for the purpose of examination of even the police witnesses. The practice place-meal examination of witness in cases like this should be avoided, as there is every scope of improvement which will be apparent from the discussion of the evidence. It also appears that the learned Judge had to draw the attention of D.C. Narcotoc Call in order to get hold of the Malkhana Register and C.D. Entry as the learned P.P. conducting the case expressed her inability to file the same even though the case was resting on the C.P. Entry itself which was treated as FIR. The same could be procured only after the learned Judge took the pain of drawing the attention of D.C. Narcotic Cell. I.O. did not think it necessary to investigate about the ownership of he seized motorcycle even though the incriminating article was alleged to have been recovered from its dicky. It is only at a late stage during trial that such investigation was caused to be made by D.C. Narcotic Cell following a direction from learned Trial Judge. Even then the said report though part of the record was not made an exhibit presumably because it would not support the prosecution case. 18. We would have been happy if the learned Special Judge could give more attention to the state of the record. The list of exhibits is incomplete. The documentary exhibit comes up to Ext 6/1, but the list ends with Ext. 2 only. We fail to understand how it could escape attention of learned Judge at the time of writing judgment, atleast. Cases of this nature can certainly claim more attention of a judge. 19. In the result the appeal stands allowed. The conviction as also the sentence passed on the accused appellant under s. 21, NDPS Act' dated 31.5.95 be set aside. We fail to understand how it could escape attention of learned Judge at the time of writing judgment, atleast. Cases of this nature can certainly claim more attention of a judge. 19. In the result the appeal stands allowed. The conviction as also the sentence passed on the accused appellant under s. 21, NDPS Act' dated 31.5.95 be set aside. The accused appellant be set at liberty forthwith if not wanted in any other case. The seized motor cycle shall go back to the registered owner of the same. Rest of the alamats be destroyed as per rules. 20. We direct that a copy of the judgment be sent by the Registry to the Deputy Commissioners (Spl. Cell) of Narcotic, D.D. Lalbazar at the earliest for information and necessary action. Sudhendu Nath Mallick, J.: I agree. Appeal allowed, conviction and sentence set aside.