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2001 DIGILAW 191 (CAL)

Kanu Chakraborty v. State of West Bengal

2001-04-03

Amit Talukdar, Malay Kumar Basu

body2001
JUDGMENT Malay Kumar Basu, J. This Criminal Appeal has been directed against the judgment and order dated 8th May, 1990 passed by Sri B. Kundu, the learned Additional Sessions Judge, Siliguri, in Session Trial No. 27 of 1987 arising out of C.R. Case No. 169 of 1986, convicting the appellant under section 46C (1) of the Bengal Excise Act and section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing the convict to rigorous imprisonment for 2 (two) years and a fine of Rs. 2000/- i.d. for further rigorous imprisonment for 6 (six) months for the first offence and rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 1 lakh i.d., to further rigorous imprisonment for 2 (two) years for the second offence. 2. The prosecution case in brief is that on June 22, 1985, Sri Swapan Aditya, Sub-Inspector of Excise Department along with Sri D.K. Biswas, Superintendent of Excise (Preventive), Jalpaiguri Division and some other constables of Excise Department raided the residence and grocery shop of the appellant, Sri Kanu Chakraborty at Pati Colony, Bagdogra at about 9-30 a.m. in the presence of two independent witnesses and recovered and seized 20 kgs. of ‘Ganja' and 1.8 kgs. of, ‘opium' and also arrested the appellant. Of the said Ganja, one kg. was recovered from the shop of the appellant and the remaining 19 kgs. were found out from below the cot of his bed room. The Officer-in-Charge, Excise Department seized the articles under a Seizure List obtaining thereon the signatures of the witnesses present there. He then took samples from each of the packets and then sealed the seized packets as well as the samples and pasted labels thereon following the rules. He also recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure and arrested the accused and took him to the Excise office alongwith seized materials and on the next day forwarded the accused to the Court. He sent the sample-packets to the Chemical Analyst for examination and report and after completion of his investigation and after obtaining report from the Chemical Examiner submitted charge-sheet against the accused before the court of Sub-Divisional Judicial Magistrate, Siliguri on 20.12.1986 under section 46A (c) (ii) of the Bengal Excise Act as well as under section 18 of the N.D.P.S. Act, 1985. 3. 3. The learned Magistrate framed charges against the accused under section 46A (c) (ii) of the Bengal Excise Act and also section 19 of the N.D.P.S. Act, when the charge was read over to him, the appellant pleaded not guilty and accordingly a date for trial was fixed .The case of the defence as disclosed from the trend of cross-examination of the witnesses was that nothing had been recovered from his possession and he had been falsely implicated after being brought from the market. 4. The ld. Trial Judge took evidence, both oral and documentary and thereafter examined the accused under section 313 of the Code of Criminal Procedure and after having heard the arguments of both sides delivered the impugned judgment. He held that the charges had been established beyond reasonable doubt and accordingly he convicted the accused and inflicted the abovementioned punishment. The ld. Judge found that there was no reason why the evidence of the witnesses should be disbelieved and that he did not find any fault with the search and seizure conducted by the Investigating Officer in this case and he did not accept the defence argument that mere absence of local inhabitants near the house of the accused during search as witnesses nullified the reliability of the evidence of the witnesses examined by the prosecution. 5. Mr. Bhattacharjee, learned Advocate for the appellant has challenged the correctness of the findings of the trial court mainly on two grounds. In the first place, according to him the prosecution case suffers from an insurmountable infirmity, inasmuch as, no public witness has come forward to support the statements of the officers of the Excise Department (PWs. 1,2 & 5) and thereby the mandatory provisions of section 100(4) of the Code of Criminal Procedure have been violated and as a result the testimonies of the official witnesses have been rendered unworthy of credit. It is found from the records that the prosecution has examined five witnesses in all. Of them the PWs. 1,2 & 5 are the employees of the Excise Department who played active role in the matter of search and seizure of the offensive articles from the possession of the appellant as alleged. The PWs. 3 & 4 are claimed to be members of the public. Of them the PWs. 1,2 & 5 are the employees of the Excise Department who played active role in the matter of search and seizure of the offensive articles from the possession of the appellant as alleged. The PWs. 3 & 4 are claimed to be members of the public. But, it appears that after the P.W. 4 Bimal Das was partly examined-in-chief-for and after he pleaded his ignorance about any raid in the house of the accused/appellant by the excise officers and also he denied the signatures appearing on the seizure list or labels affixed on the seized materials to be his, he was no more examined by the prosecution on the plea that he was not that Bimal Das who had actually witnessed the search and seizure operation and the prosecution prayed for his discharge. In view of such a prayer from the prosecution this witness (P.W.4) was discharged. But conspicuously enough, after this there has been no endeavour on the part of the prosecution to arrange for summoning the actual Bimal Das as a witness with the result that an important piece of evidence has been withheld by the prosecution without any reasonable cause being shown. 6. Thus the P.W.3 becomes the only independent public witness examined by the prosecution. Let us see the value and reliability of this witness. This P.W. 3, Sudhir Mandal, has stated in his examination-in-chief that on 22.6.86 while he was standing on 'Bagdogra More', one Excise Officer asked him to sign a paper disclosing that he would search a house and then he signed his name on a plain paper and thereafter he left the place. He has further stated that he did not accompany that Excise Officer for the purpose of holding search in any house. At this stage, the witness has been declared hostile and has been cross-examined by the prosecution. According to learned Advocate for the appellant, both the witnesses examined by the prosecution as public witnesses have failed to lend any support to the prosecution story and are of no help to the prosecution. The P.W. 4 Bimal Das was discharged on the plea that he was a wrong person being summoned as a witness and was not the man who actually witnessed the search and seizure in the name of Bimal Das. Mr. The P.W. 4 Bimal Das was discharged on the plea that he was a wrong person being summoned as a witness and was not the man who actually witnessed the search and seizure in the name of Bimal Das. Mr. Bhattacharjee's contention is that if that be so, why there has not been any attempt on the part of the prosecution to procure the attendance of the real Bimal Das, who allegedly was a witness to the search and seizure conducted by the excise officials and this failure of the prosecution gives rise to the presumption that no such public witness was in existence at all. 7. Under sub-section (4) of section 100 Cr. P.C., before conducting a search (as is contemplated under the relevant provisions of the Bengal Excise Acts) the officer making the search shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated, or of any other locality, if no such inhabitant of the said locality is available to attend and witness the search, and may issue an order in writing to them or any of them so to do. Thus it is a mandatory provision that at least two witnesses of the locality must be present during such a search. In the present case the prosecution does not come with any plea that no such witness was available; or on the other hand, the search was allegedly conducted in presence of two local witnesses and the prosecution has also summoned them and examined but it has transpired afterwards that neither of them has supported the prosecution case, as we have seen above. 8. The second glaring lacuna in the prosecution evidence is total absence of materials regarding the question of prosecution's compliance with the mandatory provisions of section 42 of the N.D.P.S. Act, 1985. Under this section an officer who is duly empowered in this behalf by an order of the Central Govt. 8. The second glaring lacuna in the prosecution evidence is total absence of materials regarding the question of prosecution's compliance with the mandatory provisions of section 42 of the N.D.P.S. Act, 1985. Under this section an officer who is duly empowered in this behalf by an order of the Central Govt. or the State Govt., as the case may be, can enter into any building or place between sunrise and sunset and make search and seizure of any offensive drug or substance and arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act, but he can do so only if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug or Psychotropic Substance in respect of which any offence as mentioned above has been committed. It is now a settled principle that those provisions contained in sections 42 to 55 of the Act have been enacted keeping in view the heavy punishment which is liable to be imposed in case a person is found guilty of any particular offence under this Act, in order to ensure fair investigation of the cases under it and to provide certain safeguards to the accuseds against their being harassed unnecessarily or against the concerned officers' having abused their powers. 9. In our instant case the officers concerned, viz., the P.Ws. 1,2 and 5 who held the raid are absolutely silent on the question as to what prompted them to search the grocery shop or residential house of the accused or what was the source of their reasonable belief or of their prior information, if any, as to the presence of the contraband articles in question there. It is also not their case that any such raid had to be held there all on a sudden and they had no time at their disposal to fulfil such requirements. Nor it is their case that the excise officers were exercising such powers on the strength of any search warrant. Here the raid was conducted at about 9 a.m., that is, between sunrise and sunset and therefore the provisions of sections 42(1) and (2) will be applicable. Sub-section (2) enjoins upon an officer's taking down information or recording the grounds of his belief, if there was any. Here the raid was conducted at about 9 a.m., that is, between sunrise and sunset and therefore the provisions of sections 42(1) and (2) will be applicable. Sub-section (2) enjoins upon an officer's taking down information or recording the grounds of his belief, if there was any. Here no such written note is forthcoming nor any evidence whatsoever in that behalf. 10. Such reason to believe either from personal knowledge or from information given by any person forms the basis of the entry, search, seizure or arrest held by an empowered officer. But nowhere within the four corners of the evidence of the prosecution there is any whisper as to the existence of this important prerequisite for exercise of power by the officer under this section. Following of such a course as a measure of an in-built safeguard has been rendered imperative owing to imposition of stringent minimum punishment prescribed for an offence under the N.D.P.S. Act. The question therefore arises what would be the effect of such non-compliance of these provisions of the Act by the raiding officers. As to this question there is a division of opinion. One view is that the provisions of sections 41 to 55 of the Act are absolutely mandatory and their non-compliance would vitiate the entire proceedings, whereas the other view is that though they are mandatory to some extent, their non-compliance will not by itself vitiate the conviction of the accused, when the recovery of the narcotics from the possession of the accused is proved to be genuine and no prejudice could be said to have been caused to the accused by such infirmity. If we adopt this latter view as more reasonable and balanced then let us examine the position in the light thereof. It should be borne in mind that stringency of the minimum punishment renders it incumbent upon the prosecution that no dement of doubt creeps into the prosecution evidence. As I have shown above, the prosecution allegation of recovery of the contraband articles from the possession of the accused having not been substantiated by any independent public witness cannot be said to be proved to the entire satisfaction of the court. As I have shown above, the prosecution allegation of recovery of the contraband articles from the possession of the accused having not been substantiated by any independent public witness cannot be said to be proved to the entire satisfaction of the court. This is not due to any reason that testimony of official witnesses should be discarded merely on the ground that they happen to be official, but because suspicious circumstances are emerging due to the fact that though allegedly two independent witnesses were procured, one of them has not been brought to the dock and the other instead of corroborating the testimony of the official witnesses has given a go-by to the prosecution case. Under such circumstances the non-compliance of the mandatory provisions of section 42 by the raiding team assumes significance. Legislature has provided such safeguards for the purpose of impressing upon the necessity ofthe investigation being visibly fair and foolproof, because the minimum punishment to be awarded for the offence is heavy and it will be against the principles of justice and good conscience if there is the slightest doubt being cast as to the truthfulness of the prosecution allegations or fairness of the investigation. Getting the prosecution evidence corroborated by independent persons of the locality becomes all the more necessary in the particular context of the defence case as disclosed from the trend of the cross-examination and also the statements of the accused under section 313 Cr. P.C. that nothing was recovered from his possession and he was brought from the market and was made to sign on certain papers at the Excise Office and then sent to jail. However, consistently the three officials of the Excise Deptt. (PWs. 1,2 & 5) may have deposed in support of the prosecution charge, they are after all the members of the raiding party and from that point of view they cannot be taken as disinterested witnesses and keeping in view the attendant circumstances one cannot but require independent corroboration. 11. In this connection it is important to note that in a very recent decision of the Apex Court the compliance with the mandatory provisions of this section 42 has been held to be imperative on the part of the prosecuting agency. A Three-Judge Bench of that Court in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, reported in 2000 C. Cr. A Three-Judge Bench of that Court in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, reported in 2000 C. Cr. L.R. (SC) 239, has observed that if the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance in respect of which an offence has been committed is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior and the action of the officer who claims to have exercised it on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone, nonetheless the resultant position would be one of causing prejudice to the accused. It has been further held that non-recording of information in the case under consideration of their Lordships has in fact deprived the appellant as well as the court of the material to ascertain what was the precise information which the officer got before proceeding to stop the vehicle and the value of such an information, which was the earliest in point of time, for ascertaining the extent of the involvement of the appellant in the offence, was of a high degree and a Criminal Court cannot normally afford to be ignorant of such a valuable information and it was not enough that the concerned witness was able to recollect from memory when he was examined in Court after the lapse of a long time as to what information he got before he proceeded to the scene. 12. Their Lordships have further observed that a Constitution Bench of the Apex Court in an earlier decision in State of Punjab vs. Baldev Singh, reported in (1999) 6 SCC 172 , already considered the impact of non-compliance of section 50 of the Act and hence they do not think that a different approach is warranted regarding non-compliance of section 42 also. Their Lordships in the said case have referred to still another earlier decision of the Apex Court reported in 1994 C. Cr. L.R. (SC) 121 ( State of Punjab vs. Balbir Singh). Their Lordships in the said case have referred to still another earlier decision of the Apex Court reported in 1994 C. Cr. L.R. (SC) 121 ( State of Punjab vs. Balbir Singh). It has been held there that to avoid harms to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly and therefore those provisions make it obligatory that such of those officers mentioned therein on receiving an information should reduce the same to writing and also record reasons for their belief while carrying out arrest or search as provided under the proviso to section 42(2) and consequently the failure to comply with these requirements affects the prosecution case and therefore vitiates the trial. 13. The third lacuna weakening the prosecution evidence is that the prosecution has not produced a single scrap of paper to show that the grocery shop or the residential house from where they allegedly recovered the contraband articles exclusively belonged to or was in exclusive possession of the accused. Nor any neighbour of the said house has been examined to make good this deficiency in the prosecution evidence. In this connection the learned counsel for the appellant has relied upon a decision of the Apex Court in Mohd Aslam Khan vs. Narcotics Control Bureau & Anr., reported in 1996 SCC (Cri) 1062. In this case proecution allegation was that it had seized contraband drugs along with an agreement purported to be signed by the accused in favour of a promoter/ builder from a flat allegedly belonging to the accused. The accused retracted from his admission that the signature on the agreement was his. In such circumstances their Lordships held that the prosecution having failed to produce any "document from the Registrar's office or to examine any neighbour the retracted statement was not sufficient to connect the accused with the premies in question. In the present case, as we have pointed out above, neither oral nor documentary evidence is forthcoming to show that the house or shop wherefrom the articles in dispute were allegedly seized were owned or possessed by the accused exclusively. Prosecution however has produced one key (Marked Mat. Ext. IV) on the allegation that the accused gave it to the raiding officer on the latter's asking. Prosecution however has produced one key (Marked Mat. Ext. IV) on the allegation that the accused gave it to the raiding officer on the latter's asking. In the first place, the accused having totally denied such a story, prosecution's duty was to get it corroborated by some disinterested member of the public of the locality. But, as we have shown above, there has been absolutely no attempt on its part in this direction. Therefore, it has not been proved beyond doubt that this key was handed over to the P.W.5 by the accused himself. Secondly, it is in the evidence of the P.W. 5 that by the side of the room wherefrom the articles were recovered there was another room which was tenanted to another person. This shows that there were others besides the accused in the disputed house and the possibility of the articles, even if at all, being kept there by such other person cannot be ruled out altogether, specially when it is not the case of the prosecution that before they went to hold the raid there, they had any prior information or had any reason to believe that arty such offensive substances were being stored there by the accused. Thirdly, while the accused has been examined under section 313 Cr.P.C., the question regarding the? alleged taking of the key in respect of the room in question from the accused by the Excise Officer appears to have been put to him in a clumsy manner being jumbled up with four other questions simultaneously so that the answer given by the appellant appears to be in relation to the last of them. This is highly improper. Putting of five questions together is bound to create confusion and it is quite likely that the answer of the accused will be directed towards the last question, the other questions put earlier to it remaining overlooked. We discard the practice of combining so many points in one set of questions, as thereby the accused may be deprived of an opportunity of applying his mind to each question individually and specifically with the result that sometimes this may be dangerous for the defence of the accused. We discard the practice of combining so many points in one set of questions, as thereby the accused may be deprived of an opportunity of applying his mind to each question individually and specifically with the result that sometimes this may be dangerous for the defence of the accused. We are of the view that while putting questions to an accused person the Trial Judge or Magistrate should frame the question in such a fashion that it does not include or relate to more than one point. 14. Learned Trial Judge appears to have gone too far in making an evaluation of the prosecution evidence. It is in the evidence of P.W.5, the principal detecting officer and also the investigating officer of this case, that during their raid several persons of the locality assembled and out of them the P.W.5 picked up two as witnesses to the search and seizure. But, as we have discussed above, the prosecution has examined only one and left the other without assigning any reason. The one who has been examined, viz., the P.W.3., Sudhir Mandal, has not only contradicted his statement regarding search and seizure but also he has disclosed that he is not a resident of that locality and put his signature on a plain paper at Bagdogra more and not at the place of occurrence and he did not accompany any excise officer for the purpose of search. The learned Trial Judge has not found any fault in the prosecution's failure to cite or examine as witness any neighbouring house owner or resident of the locality on the reasoning that nowadays place loving people of our society are now suffering from fear-psychosis apprehending destruction and loss of lives and properties in the mighty hands of the anti-socials and that the neighbouring people being aware of the desperate nature of the accused might not dare to be witness to a search in the house of the accused whereas the P.W.3 being a resident of a different locality and being unaware of the activities of the accused showed the courage to be present as a witness to the search. The question is wherefrom the Id. Judge drew such conclusions. The P.W.5 or any other P.W. has not made out any such case. The question is wherefrom the Id. Judge drew such conclusions. The P.W.5 or any other P.W. has not made out any such case. There is no whisper in their evidence that the local people who assembled were approached by them (the excise officials) for being witnesses to the search and seizure but they refused to do so. Further down in his judgment the Id. Judge observes that he noted the demeanour of the witness while he was on the dock and that all along during his examination, on the questions put to him by the Id. A.P.P. his answer was that he saw the bags and packets containing ganja and opium in the office and he signed on the seizure list and on the labels in the Excise Office and further that he appeared to be shaky and frightful during his examination which leads him to believe that he concealed the truth intentionally due to some extraneous reason. We are of opinion that simply because some suspicion was raised in the mind of the Id. Judge seeing the demeanour of this witness, it was far-fetched on his part to jump to the conclusion that the search and seizure were held in the presence of this witness when other circumstances were not supporting such a stand. Suspicion should not take the place of proof particularly when imposition of not less than ten years' imprisonment will hinge on such a finding. Another feature regarding this witness perhaps excaped notice of the Id. Trial Judge. When this witness was declared hostile and was cross-examined by the prosecution, the very first sentence of such cross-examination was a statement from him elicited by the prosecution that on many previous occasions he (this P.W.3) had to sign on plain papers being asked by police or Excise Officers, though he did not remember the dates. Thus it is the case of the prosecution that this witness is a habitual witness in such matters. This raises doubt as to the genuineness of the effort claimed by the P.W.5 in procuring independent and neutral witnesses of the locality. As already pointed out, none of the three official witnesses have ever stated that they asked anyone else ofthe persons of the locality who had assembled there, to be witness. This raises doubt as to the genuineness of the effort claimed by the P.W.5 in procuring independent and neutral witnesses of the locality. As already pointed out, none of the three official witnesses have ever stated that they asked anyone else ofthe persons of the locality who had assembled there, to be witness. Under similar circumstances, a Division Bench of Delhi High Court in Dinesh Kumar vs. State, has held that the associating an independent witness from the public and their witnessing the search is not a mere formality and suspicious circumstances start when the investigation agency ignore to procure an independent witness though he could have procured the same, but, instead, he called a person, who was known to him from before, to associate him as an independent witness and since no mention of such a fact was made in the case diary, the testimony of the police official cannot be easily relied upon. The circumstances of our instant case are almost indentical and in view of the emergence of the suspicious situation, as aforesaid, due to the failure of the investigating officer to make an honest effort to produce an independent witness, the evidence of the official witnesses is to be taken with utmost care and caution particularly when the accused admittedly was not unknown to the investigating officer. For P.W. 5 has admitted in his cross-examination that he previously arrested this accused for his possessing ganja. It may be noted that the defence is that this case has been falsely instituted by the Excise Officials due to their previous grudge. In such circumstances it becomes all the more essential that the prosecution should present a foolproof, flawless evidence to substantiate its charge. 15. Still this is not all. At every stage, under the N.D.P.S Act, legislature has put checks so that an accused cannot complain subsequently that a fair investigation has not been done in the case and one more such safeguard is provided under section 57 requiring the person holding arrest or seizure to make a full report of all the particulars of arrest and seizure and forward it to his immediate superior officer. Looking to the list of Exhibits we do not find any such report having been adduced into evidence from the side of the prosecution. This constitutes yet another shortcoming in the prosecution evidence. Looking to the list of Exhibits we do not find any such report having been adduced into evidence from the side of the prosecution. This constitutes yet another shortcoming in the prosecution evidence. In the decision reported in 1990(1) EFR 300 it has been held that all these checks in the Act have been provided because the minimum sentence for the offence to be awarded is 10 (ten) years which is a very long period plus payment of a huge minimum fine of one lakh of rupees and hence the accused has a right to claim a foolproof, honest, independent and fair investigation. 16. Having regard to the infirmities in the evidence of the prosecution discussed above, we do not consider it a fit case where it can be said that the prosecution has been able to establish its charges against the accused -appellant beyond all shadow of doubt. In our view, therefore, the order of conviction cannot be sustained in law. 17. In the result, we allow the appeal and set aside the order of conviction and sentences recorded against the appellant. The appellant be set at liberty forthwith. Amit Talukdar, J.: I agree. Appeal allowed.