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2000 DIGILAW 229 (CAL)

Tej Bahadur Singh v. Narcotic Control Bureau

2000-05-04

Debiprasad Sengupta, Sujit Barman Roy

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JUDGMENT Debiprasad Sengupta, J.: The present appeal is against the judgment and order dated 22/23.6.98 passed by the learned Judge, 6th Bench, City Sessions Court, Calcutta & Special Judge in N.D.P.S. Case No. 31/95 convicting the appellants for committing an offence punishable under section 21 of the N.D.P.S. Act and sentencing them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh each in default of which to undergo rigorous imprisonment for a further period of 1 year. 2. The prosecution case in brief is that on 11.7.95 the officer of the Narcotic Control Bureau acting on a source information searched room No.2 of Puspa Hindu Hotel and Lodging House in presence of two independent witnesses at 22, M.G. Road, Calcutta from 10.30 a.m. to 3 p.m. The present appellants were found to be in occupation of the aforesaid room and during search 3.10 kgs. of brown coloured powder believed to be heroin was found in the bed of the appellants which was kept inside a cloth bag being wrapped in a polythene packet. Preliminary test at the spot revealed the same to be heroin. All the articles found inside the room were seized. Two sample packets of the aforesaid substance containing 3 gms. each were prepared. The appellants were served with notice under section 67 of the N.D.P.S. Act to attend the office of N.C.B. on 11.7.95. In compliance with the said notice the appellants visited the office of the N.C.B. on 11.7.95 and 12.7.95, when they admitted their guilt in writing and disclosed their identity. The appellants thereafter were arrested on 12.7.95 for committing offence under section 21/29 of the N.D.P.S. Act. It is the further case of the prosecution that the aforesaid sample was sent to the Chemical Laboratory, Customs House, 15/1, Strand Road, Calcutta -1. The result of the chemical examination was positive and conformed to the definition of heroin. On receipt of the report of Chemical Analyst the complaint was filed in court. 3. To prove its case the prosecution had examined as many as 8 witnesses. P.W.I is the Assistant Chemical Examiner attached to Chemical Laboratory, Customs House, 15/1, Strand Road, Calcutta, who had examined the samples of the seized powder substance. P.W.2 was an officer of the Narcotic Control Bureau and was a member of the raiding party. 3. To prove its case the prosecution had examined as many as 8 witnesses. P.W.I is the Assistant Chemical Examiner attached to Chemical Laboratory, Customs House, 15/1, Strand Road, Calcutta, who had examined the samples of the seized powder substance. P.W.2 was an officer of the Narcotic Control Bureau and was a member of the raiding party. P.W.3 was an intelligence officer of the N.C.B. and was a member of the raiding party. He also received the secret information on the basis of which raid was conducted. P.W.4 was an intelligence officer of the N.C.B. and was a member of the raiding team. P.W.5 was also an officer of the N.C.B. and was a member of the raiding team. P.W. 6 is also an officer of the N.C.B. and he filed the petition of complaint. P.W.7 is the owner of Puspa Hindu Hotel & Lodging House. P.W.8 was an officer of N.C.B. who acted as godown officer on 11.7.95. 4. Mr. Sekhar Bose, learned Advocate appearing for the appellants submits that the sample which was analysed by P.W.1 cannot be the representative sample of the alleged contra banned article allegedly seized from room No.2 of Puspa Hindu Hotel on 11.7.95. Mr. Bose draws our attention to the evidence of P.W.1 and submits that as per his evidence the samples of article which were analysed by P.W.1, was received by his office on 12.7.95, i.e., the day following the seizure. Mr. Bose further points out that it is the evidence of P.W.2 that the sample packets alongwith the main lot were produced before the learned Judge on 13.7.95 and the same were countersigned by the court with the seal of that court. It also appears from the order of the learned Judge, Special Court dated 13.7.95 that the entire seized articles along with samples were produced before the learned Judge, Special Court on 13.7.95 and the learned Judge by the said order permitted the N.C.B. officers to send the samples for chemical examination. 5. According to the appellant's learned Advocate if the aforesaid three circumstances are taken into consideration it can be said without any hesitation that the samples which were analysed by P.W.1, cannot be the samples which were prepared by P.W.2 at the time of seizure on 11.7.95. 5. According to the appellant's learned Advocate if the aforesaid three circumstances are taken into consideration it can be said without any hesitation that the samples which were analysed by P.W.1, cannot be the samples which were prepared by P.W.2 at the time of seizure on 11.7.95. There is no evidence on record to show that the samples which were prepared on 11.7.95 were sent to the office of P.W.1 on 12.7.95 and was again taken back from P.W.1's office on 13.7.95 and then again sent back to the office of the P.W.1 for analysis. 6. Mr. Mukherjee, learned Advocate appearing for the Narcotic Control Bureau, in reply to the aforesaid argument of Mr. Bose, submits that the goods were seized on 11.7.95 and were sent to the laboratory for chemical examination on 12.7.95, which was received by the office of the P.W.1 on the same date, i.e., on 12.7.95. According to him all these things are in evidence and in the cross-examination nothing was revealed that samples were not collected on 11.7.95 and were sent on 12.7.95 to P.W.1. Mr. Mukherjee submits that while preparing the forwarding letter P.W.2 due to mistake put the date as on 11.7.95 instead of 12.7.95 and for this reason the entire prosecution case should not be disbelieved. Mr. Mukherjee further submits that the seized sample packets were produced before the learned Judge on 13.7.95 when the learned Judge permitted the N.C.B officers to send the samples for chemical examination. According to Mr. Mukherjee the argument of the appellant's ld. Advocate that if the seized sample packets were produced before the court on 13.7.95, when permission was given to the N.C.B. officers to send the sample for chemical examination, it was not at all possible for P.W.1's office to receive the same on 12.7.95 for analysis, is not at all tenable. According to him such an argument should not be taken into consideration as it is not at all mandatory to produce the sample packets before the concerned court within 24 hours of arrest of the accused persons. The statement of the witnesses made relating to the signature and seal of the learned Judge was made in connection with the seized goods and not the sample packets. But we are ubable to accept such argument of Mr. The statement of the witnesses made relating to the signature and seal of the learned Judge was made in connection with the seized goods and not the sample packets. But we are ubable to accept such argument of Mr. Mukherjee, because the order dated 13.7.95 passed by the learned Judge, Special Court clearly indicates that two "sealed packets" were produced before the concerned court. 7. Mr. Mukherjee further submits that there is something wrong in the order of the learned Special Judge. According to Mr. Mukherjee actual sample packets were not produced before the court and only the seized goods minus actual sample packets were produced before the learned Judge. He further submits that the permission of the court for sending the samples for chemical examination is not at all necessary. It is very difficult for us to swallow such type of argument advanced by Mr. Mukherjee for the reasons which we have already discussed above. 8. Mr. Bose, learned Counsel for the appellants submits that in the charge framed against the appellants no time has been mentioned by 'the ld. Judge, for which the appellants are put in great difficulties during the trial. He draws our attention to the complaint filed by P.W.6, from which it appears that a search was conducted by the officers of the N.C.B. on 11.7.95 from 10.30 hours to 15.00 hours. P.W.2 in his evidence stated that acting on a secret information a team of the N.C.B left N.C.B office at 1.00 p.m. Again according to P.W. 7 the aforesaid raiding party had reached his hotel on 11.7.95 between 1.00 p.m. and 1.15. p.m. Mr. Bose also draws our attention to the hotel register maintained by P.W.7 (material exhibit-IX). The said document goes to show that the appellants could not have been in the said hotel on 11.7.95 at 1.00 p.m. The hotel register shows that the appellants had checked out from the said hotel at 12.30 p.m. on the said date. According to Mr. Bose in the light of the above circumstances it is evident that the prosecution has miserably failed to prove its case as regards the time of the alleged seizure and the presence of the appellants at the place of seizure. 9. In reply to the aforesaid argument of Mr. According to Mr. Bose in the light of the above circumstances it is evident that the prosecution has miserably failed to prove its case as regards the time of the alleged seizure and the presence of the appellants at the place of seizure. 9. In reply to the aforesaid argument of Mr. Bose, it is submitted by the learned Counsel of Narcotic Control Bureau that there is some mistake as regards the mentioning of the time in the petition of complaint, wherein it is stated that search and seizure took place in between 10.30 a.m. and 3 p.m. But it should be exactly in between 1.00 p.m. to 3. p.m. It is his further submission that the present appellants were present in the hotel at the time of search and seizure although their departure was recorded in the hotel register at 12.30 p.m. Mr. Mukherjee submits that sometimes it is seen that the boarders even after putting their signature and departure time in the register of the hotel, wait for car, taxi or for any other purpose. According to Mr. Mukherjee simply because the departure time of the appellants was recorded in the register as 12.30 p.m., it cannot be said that they were not present in the said hotel at the time of search and seizure. But we are unable to accept such argument of Mr. Mukherjee, because what he submitted is not based on any evidence. There is nothing in the evidence to show that the appellants even after their departure time was recorded in the register, remained in the said hotel for any other purpose. 10. Mr. Bose, the learned Advocate of the appellants next submits that in the present case it appears from the evidence on record that samples were taken out and sent for chemical examination without complying with the provisions of section 52A of the N.D.P.S. Act. Mr. 10. Mr. Bose, the learned Advocate of the appellants next submits that in the present case it appears from the evidence on record that samples were taken out and sent for chemical examination without complying with the provisions of section 52A of the N.D.P.S. Act. Mr. Bose draws our attention to the provision of section 52A(2) of the Act, which runs as follows:- "Where any narcotic drug or psychotropic substance has been seized and forwarded to the Officer-in-Charge of the nearest police station or to the officer empowered under section 53 the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, number or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application to any Magistrate for the purpose of- (a) certifying the correctness of the inventory prepared; or (b) taking, in the presence of such Magistrate photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of Magistrate and certifying the correctness of a list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may allow the application." 11. Mr. Bose submits that in exercise of the powers conferred by section 52A (2) of the N.D.P.S. Act, 1985 which was incorporated in the principal Act on 29th May, 1989, the Government of India, Ministry of Finance (Department of Revenue) by standing order No. 1/89 dated 13th June, 1989 laid down elaborate guidelines for effectuation of the provisions of section 52A of the N.D.P.S. Act. Mr. Bose draws our attention to the different sections (sections I, II, III & IV) of the said standing order dated 13th June, 1989. Our attention was specially drawn to section IV of the said order and different paragraphs and statutory directions contained therein. Mr. Bose draws our attention to the different sections (sections I, II, III & IV) of the said standing order dated 13th June, 1989. Our attention was specially drawn to section IV of the said order and different paragraphs and statutory directions contained therein. We have gone through the same and we find that section IV of the said standing order is virtually a replica of the provision of section 52A(2) of the N.D.P.S. Act. Mr. Bose submits that paragraph 4.0 of section IV of the said standing order is of utmost importance with regard to preparation of inventory and making application to the Magistrate for certifying the correctness of the inventory and compliance with other procedures. We have gone through the said paragraph 4.0 of section IV of the standing order, which runs as follows: "Where any narcotic drug or psychotropic substance has been seized and forwarded to the Officer-in-Charge of the nearest police station or to the officer empowered under section 53, the officer, referred to in paragraph 3.3................ of the order shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and such other particulars as may be considered..........relevant to the identity of the aforesaid drugs in any proceedings under the Act and make an application to any Magistrate for the purpose of- a) certifying the correctness of the inventory so prepared; or b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn." According to Mr. Bose the samples were taken out and were sent for chemical analysis by the officers of the Narcotic Control Bureau in violation of the mandatory provision of section 52A of the N.D.P.S. Act. 12. Mr. Bose relies on a judgment of this court reported in 1997 Cr. L.J. 4553, wherein it was held by the Division Bench of this court that section 52A is a mandatory provision and its violation will adversely affect the prosecution case. Mr. 12. Mr. Bose relies on a judgment of this court reported in 1997 Cr. L.J. 4553, wherein it was held by the Division Bench of this court that section 52A is a mandatory provision and its violation will adversely affect the prosecution case. Mr. Bose next submits that in explaining section 52 of the N.D.P.S. Act Hon'ble Supreme Court of India in the case of State of Punjab vs. Balbir Singh (1994 Cal. Cr. L.R. 121 at page 141) pointed out "....... the officers, however, cannot totally ignore this provision and if there is no proper explanation for non-compliance or whether the officers totally ignored the provision, then that will definitely have an adverse effect in prosecution case and the courts have to appreciate the evidence and the merits of the case bearing this aspect in view. However, a mere non-compliance of failure to strictly comply by itself would not vitiate the prosecution." One is to take into account the view expressed by the Hon'ble Supreme Court that a total ignorance of the provision of section 52 of the N.D.P.S. Act, according to Their Lordships, will adversely affect the prosecution case. Mr. Bose next relies on a judgment reported in JT 1999 (3) SC 231 (Thandi Ram vs. State of U.P.), wherein it was held, referring to the case of State of Punjab vs. Balbir Singh (supra) that non-compliance of section 52 will render the conviction and sentence unsustainable in law. There Lordships also referred to a Three Judge Bench decision of the Hon'ble Supreme Court in the case of Mahinder Kumar vs. State of Panaji and Goa, reported in AIR 1995 SC 1157 . 13. Mr. Mukherjee, learned Advocate appearing for the respondent/N.C.B. submits that the provision of section 52 of the N.D.P.S. Act has not been held mandatory in the case of Balbir Singh (supra) and as such section 52A, which is continuation of section 52, cannot be a mandatory provision and the same must be held to be directory. 14. We have heard the submissions of Mr. Mukherjee. But we are unable to accept such argument advanced by Mr. Mukherjee. In the case of State of Punjab vs. Balbir Singh (supra) section 52A of the N.D.P.S. Act was not taken into consideration by the Hon'ble Supreme Court nor any issue was raised before the Hon'ble Supreme Court with regard to the interpretation of section 52A. Mukherjee. But we are unable to accept such argument advanced by Mr. Mukherjee. In the case of State of Punjab vs. Balbir Singh (supra) section 52A of the N.D.P.S. Act was not taken into consideration by the Hon'ble Supreme Court nor any issue was raised before the Hon'ble Supreme Court with regard to the interpretation of section 52A. Since there is no judgment on section 52A of the N.D.P.S. Act in the case of Balbir Singh (supra) the view expressed by the Hon'ble Court with regard to section 52 of the Act cannot be extended so as to include the meaning, purport and effect of section 52A of the Act. In the judgment of the Hon'ble Apex Court in the case of State of Orissa vs. Sudhansu Sekhar Misra, reported in AIR 1968 SC 647 , it was held that a decision is not an authority for the proposition that may logically follow. from it. What is of essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. This judgment of the Hon'ble Apex Court was followed by a Division Bench of our High Court in the case of Godrej Soap Ltd. vs. State, reported in 1990 Calcutta Criminal Law Reporter (Calcutta) 56. In view of the decisions referred to above we are of the view that the argument advanced by the learned Counsel of the N.C.B. that the decision of the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh should be read also as a decision of the court in respect of the nature and character of section 52A of the N.D.P.S. Act cannot be accepted by us. 15. We should keep in mind that one of the objects sought to be achieved by the Legislature for introduction of section 52A in the principal Act of 1985 is to prevent "substitution" of the article. Article after seizure can only be substituted when it is in the custody of the officer and/or department which seizes and comes into possession of the article after seizure. If these procedures are not followed, the possibility of 'substitution' of the articles cannot be ruled out. Article after seizure can only be substituted when it is in the custody of the officer and/or department which seizes and comes into possession of the article after seizure. If these procedures are not followed, the possibility of 'substitution' of the articles cannot be ruled out. In the present case in view of the facts and circumstances stated above, it can be reasonably said that the articles which were seized from the possession of the appellants, were not sent for chemical analysis by P.W.1 and were affected by substitution otherwise there could not have been so many discripancies in the prosecution evidence with regard to the identity of the articles. 16. In view of the discussions made above we are of the view that the provision of section 52A of the N.D.P.S. Act is a mandatory provision inasmuch as the said provision was inserted in the Act with a definite purpose, i.e., to prevent substitution of articles seized by the concerned officer or the department. We are also of the opinion that non-compliance of the provision of section 52A makes the entire search and seizure vitiated. The prosecution has failed to prove as to how the sample packets, which were admittedly in the custody of the N.C.B. officers till 13.7.95, when the same was produced before the court and permission was granted by the court for sending the same for chemical analysis, could be received by the office of the P.W.1 on 12.7.95. In such circumstances there is every doubt as to whether the sample prepared by P.W.2 at the time of seizure in respect of which he prepared the Test Memo was received by P.W.1. P.W.1 might have received some other packet other than the sample packet prepared by P.W.2 and P.W.1's test report/finding relates to articles which were not seized from the appellants. In our opinion such benefit of doubt must go in favour of the accused appellants. We find sufficient merit in the submissions made by Mr. Bose, learned Counsel appearing for the appellants: Accordingly the appeal is allowed. The judgment and order of conviction •and sentence passed by the learned Judge, City Sessions Court, Calcutta & Special Judge in N.D.P.S. Case No. 31/95 is hereby set aside. The appellants be set at liberty forthwith. Sujit Barman Roy, J.: I agree. Appeal allowed and conviction and sentence set aside.