Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 382 (CAL)

Sukumar Mondal v. State

2000-08-03

NURE ALAM CHOWDHURY, PRADYOT KUMAR SEN

body2000
JUDGMENT Chowdhury, J. This appeal on behalf of the Appellant-Sukumar Mondal, a poor and illiterate boy aged about 17 years and an unlicensed hawker in train selling coffee, is directed against the judgment and order of conviction and sentence dated 31.8.91, passed by a learned Judge, 1st Special Court, Burdwan, convicting the Appellant on the charge under Section 21 of the N.D.P.S. Act for violation of the provision under Section 8 of the N.D.P.S. Act and sentencing him to undergo R.I. for ten years and to pay fine of Rs. 1,00,000/- (one lakh), i.e. to undergo R.I. for another three years. 2. Prosecution case in brief, is that the appellant was a hawker of Railway without licence. On or about the 26th day of July, 1989, corresponding to 9th Bhadra, 1396, in order to work out a secret information, Sri A.K. Bandopadhyay (P.W.4), a Sub-Inspector of Police attached to E.I.B. (Excise Intelligence Bureau) at the relevant time, Burdwan, was performing his checking duty during night with his staff at Platform Nos. 4 & 5 of Burdwan Railway Station and found the Appellant standing suspiciously near the over bridge at Platform No.4 at about 8-30 p. m. The Appellant disclosed his name as Sukumar Mondal and on search of his body one paper packet containing about 100 mg. of heroin wrapped with polythene was found at the right hand palm of the Appellant which was seized under a seizure list (Ext.-I) and the Appellant was arrested, and ultimately placed on trial and convicted and sentenced as above. 3. Prosecution examined four witnesses in support of the prosecution case. Among them P.W. I. was an A.S.I. of Excise performing duty with P.W. 4 on that day. He corroborated the prosecution case and is a witness to the seizure list, P.W. 2 a police constable performing duty with P. Ws. 1 & 4 also corroborated the prosecution case and he is also a witness to the seizure, P.W. 3 a witness to the seizure, a public and a chance witness stated in his cross-examination that he signed the seizure list in good faith under the instruction of Excise staff. P.W. 4 S. I. of Police searched the body of the Appellant and seized the heroin from the possession of the Appellant, arrested him, investigated the case and submitted charge-sheet against the Appellant. 4. P.W. 4 S. I. of Police searched the body of the Appellant and seized the heroin from the possession of the Appellant, arrested him, investigated the case and submitted charge-sheet against the Appellant. 4. The defence case, as transpires from the trend of cross-examination of the prosecution witnesses and the examination of the Appellant under Section 313 of the Code of Criminal Procedure is that he was a hawker in Railways without licence and he could not satisfy the police and nothing was seized from him and the allegation against him are totally false and concocted. 5. The Appellant was defended at the cost of the State at the trial and by order of the High Court Mr. Biplab Mitra, learned Advocate with a Junior of his choice has been appointed on behalf of the Appellant at the cost of the State. 6. Learned Counsel appearing 0n behalf of the Appellant submitted that the search and seizure is bad in law and was made in violation of the provision of Section 50(1) of the N. D. P. S. Act as the Appellant was neither asked before search as to whether he intends to be searched in presence of a Magistrate or a Gazetted Officer and was also not searched in presence of any Gazetted Officer as required under Section 50(1) of the N.D.P.S. Act and in view of the decision of the Apex Court reported in (1) 2000 C. Cr. LR 44 (SC), T. Hamza v. The State of Kerala, the appeal must succeed and the Appellant is entitled to be acquitted. It is further submitted that the charge is also bad in law and the non-mentioning of time in the charge as required under Section 212 of the Code of Criminal Procedure has also vitiated the trial. It is further submitted that the Appellant was not properly examined under Section 313 of the Code of Criminal Procedure as the question reads that "It transpired from the evidence etc." that on 26.7.89, at 8 p.m. on Platform No.4, Burdwan Railway Station 100 miligram of heroin was found with you. What have you got to say in this matter? To which no accused can effectively answer and as such the Appellant was seriously prejudiced. It is also submitted that the learned Special Judge erred in law in not considering the defence case in its proper perspective leading to failure of Justice. What have you got to say in this matter? To which no accused can effectively answer and as such the Appellant was seriously prejudiced. It is also submitted that the learned Special Judge erred in law in not considering the defence case in its proper perspective leading to failure of Justice. 7. Learned Counsel for the State failed to satisfy this Court that the search and seizure was made in accordance with the provision of Section 50(1) of the N.D.P.S. Act. Considering the respective submissions and the materials-on record this Court allows the appeal in accordance with the decision of the Apex Court reported in 2000 C. Cr. LR 44 (SC), T. Hamza v. The State of Kerala, and in (2) JT 1999 (4) SC 595, State of Punjab v. Baldev Singh, and the conviction and sentence of the Appellant are set aside. The Appellant is directed to be released from custody forthwith. Sen, J. : I agree.