Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 244 (CAL)

KARTICK SHAW v. STATE OF WEST BENGAL

2001-04-27

DEBIPRASAD SENGUPTA

body2001
D. P. SENGUPTA, J. ( 1 ) -THE present appeal has been preferred against the judgment and order of conviction and sentence dated 13. 11. 98 passed by the learned Special Judge, 6th Bench, City Sessions Court, Calcutta in N. D. P. S. Case No. 17 of 1997 thereby convicting the accused appellants under section 20 (b) (I) of the N. D. P. S. Act 1985 and sentencing them to suffer rigorous imprisonment for 4 years and to pay a fine of Rs. 20,000/- each. ( 2 ) THE prosecution case is that a team of officers of Narcotic Control Bureau intercepted one Kartick Shaw in front of Shantiniketan Hotel near Sealdah Fly over who was found to be in possession of a gunny bag. The officers disclosed their identity and on enquiry came to know that he was possessing 'ganja' in his bag. The accused person was given the offer that he might be searched in presence of a gazetted officer, who was present with the team of officers of Narcotic Control Bureau. The accused agreed to be searched in presence of such gazetted officer. Two independent witnesses were collected and on search 25 Kgs. of 'ganja' was recovered from the bag, which was seized in presence of witnesses. Samples were taken for chemical examination after observing all formalities. A notice under section 67 of the N. D. P. S. Act was served upon him and in compliance with the direction in the said notice Kartick visited the office of N. C. B. and made a voluntary statement on 29. 4. 97 admitting possession of Ganja. ( 3 ) FURTHER prosecution case is that on 29. 4. 97 at 00. 30 hours as a follow-up action, on recovery of 25 Kgs. of 'ganja' as aforesaid, a raid was conducted in the godown at Berhampore, Murshidabad. The owner of the godown Goutam Saha was found present with two other persons named Ito Singh and Yaima Singh, who are the suppliers of 'ganja'. The godown was searched in presence of independent witnesses at 7. 30 hours on 29. 4. 97 and 2002. 9 Kgs. of Ganja was recovered from the said godown, which was seized. Samples were taken for chemical examination after observing all legal formalities. Notice under section 67 was served upon all the three accused persons asking them to attend the N. C. B. Office. 30 hours on 29. 4. 97 and 2002. 9 Kgs. of Ganja was recovered from the said godown, which was seized. Samples were taken for chemical examination after observing all legal formalities. Notice under section 67 was served upon all the three accused persons asking them to attend the N. C. B. Office. In compliance with the said notice all the three accused persons attended N. C. B. office and made voluntary statements. All the accused persons were arrested on 29. 4. 97 at 22. 30 hours. The representative samples drawn from the recovered 'ganja' were sent to the Chemical Laboratory, Customs House, Calcutta for Chemical test. The chemical examiner in his report dated 27. 5. 97 certified that the samples respondent positive to the test of 'ganja'/cannabis. ( 4 ) TO bring home the charge against the accused persons, seven witnesses were examined in this case. Except P. W. 2, who is the chemical examiner, all are the officers of Narcotic Control Bureau. ( 5 ) MR. S. S. Roy, Learned Advocate appearing for the appellants submits that in the present case there is a total non compliance of section 50 of the N. D. P. S. Act. Mr. Roy draws the attention of the Court to the evidence of P. W. 3 who stated in his examination in Chief that he gave the appellant No. 1 Kartick Shaw an offer that he might be searched by a Gazetted Officer who was present with the raiding party or by any other Magistrate. In his cross-examination he stated that the name of N. C. Patra, a Gazetted Officer and a member of the raiding party, was not mentioned in the first remand petition or in the complaint filed by the N. C. B. Officer. P. W. 2 who was also a member of the raiding party has not stated anything that such offer was given to the accused Kartick before search. He further stated that no search list was prepared in this case in connection with the search of Kartick Shaw. P. W. 5 in the Gazetted Officer who was with the raiding party and he stated that he was the only Gazetted Officer present in the raiding party. He further stated that no search list was prepared in this case in connection with the search of Kartick Shaw. P. W. 5 in the Gazetted Officer who was with the raiding party and he stated that he was the only Gazetted Officer present in the raiding party. The N. C. B. Officers disclosed that there was a Gazetted Officer and the accused agreed to be searched in presence of such Gazetted Officer who was present with the raiding party. P. W. 6 and P. W. 7 both are Officers of the N. C. B and were members of the raiding party. They recorded the statements of accused Ito Singh and Yaima Singh respectively, but they did not give any caution to the accused before recording their statements. ( 6 ) MR. Roy the learned Advocate submits that from the evidence on record it does not appear that the accused was ever told by any Officer that he has got a valuable right to be searched in presence of a Magistrate or a Gazetted Officer. Apart from that there is no cogent evidence that such offer was actually given to the accused by the N. C. B. Officers. Mr. Roy relies on a judgment of the Hon'ble apex Court reported in 2000 Calcutta Criminal Law Reporter (SC) 449 (Ahmed v. State of Gujarat), wherein it was held by the Hon'ble Supreme Court as follows:-"a combined reading of the provisions of section 42 and section 50 would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a Gazetted Officer or the nearest Magistrate the same must be complied with and failure of compliance with the same would constitute an infraction of the requirements of the provision of section 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of section 50, no differentiation can be made on a plain reading of the language used in section 50, depending upon the Officer who is going to search the person concerned. For the purpose of complying with the provisions of section 50, no differentiation can be made on a plain reading of the language used in section 50, depending upon the Officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another Gazetted Officer or the Magistrate and that right cannot be taken away; merely because the Officer going to search happens to be a Gazetted Officer, who has been empowered either by the Central Government or by the State Government by a general or special order. " ( 7 ) MR. Roy next submits that taking a Gazetted Officer of the same department with the raiding party is not sufficient compliance of section 50 of the N. D. P. S. Act and search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not interested in the success of the raid. In support of his contention Mr. Roy relies on a judgment reported in 1999 (II) CHN 759 (Full Bench) (Jadunandan Roy v. The State of W. B. ). In the said judgment it was held by this Court that once on option is exercised, the accused is required to be taken to the nearest Gazetted Officer or the Magistrate, but the said provision would be made nugatory if the gazetted officer is already at the spot. The provision contemplates a decision by an independent officer and not an officer who is already a member of the raiding party and thus a biased person. It was held by, this Court that for strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid. ( 8 ) RELYING of the aforesaid two judgments Mr. Roy submits that from the evidance on record it becomes clear that there was non compliance of section 50 of the N. D. P. S. Act. ( 8 ) RELYING of the aforesaid two judgments Mr. Roy submits that from the evidance on record it becomes clear that there was non compliance of section 50 of the N. D. P. S. Act. ( 9 ) MR. Roy next argues that in the present case it appears from the evidence on record that there is a total non compliance of the mandatory provision of section 52a of the N. D. P. S. Act. Mr. Roy draws the attention of the Court 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, 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 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 so prepared; or (b)taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs 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. " ( 10 ) MR. Roy points out the evidence of P. W. 3, who stated in his cross-examination "neither the accused nor the seized articles were produced before the Magistrate. I made no inventory of the articles within the office premises. I took no certificates of the Magistrate to that effect regarding correctness of the inventory. No step was taken before the Magistrate by producing the sample or any seized article for necessary order. No certificate of correctness was taken from the Magistrate. " ( 11 ) MR. I made no inventory of the articles within the office premises. I took no certificates of the Magistrate to that effect regarding correctness of the inventory. No step was taken before the Magistrate by producing the sample or any seized article for necessary order. No certificate of correctness was taken from the Magistrate. " ( 11 ) MR. Roy relies on a Division Bench judgment of this Court reported in 2000 (1) CHN 803 (Tej Bahadur Singh and Another v. Narcotic Control Bureau and Another), wherein it was held as follows:-"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. " ( 12 ) RELYING upon the aforesaid judgment it is submitted by Mr. Roy that the provision of section 52a (2), which has been held by the Division Bench of this Court to be mandatory in nature, has not been complied with in the present case. Such non-compliance has made the entire search and seizure vitiated and the order of conviction and sentence is liable to be set aside on this score alone. ( 13 ) MR. Roy further points out that seizure was made in both the places, at Calcutta and at Berhampore, in presence of independent witnesses, but none of the four independent witnesses has been examined in this case and the prosecution has failed to give any explanation for non-examination of such seizure witnesses. ( 14 ) MR. Moloy Singh, learned Advocate appearing for the Narcotic Control Bureau submits that the provision of section 50 of the Act does not have any manner of application in the present case. According to him requirement of compliance of section 50 of the Act will not arise if a search is conducted by an empowered officer under section 41 (2) of the N. D. P. S. Act and such compliance is only required to be complied with only when search is conducted by an authorised Officer under section 41 (2) of the Act. Mr. Mr. Singh further submits that even assuming that such provision of section 50 is required to be complied with, the same was very much complied with in the present case, because before conducting the search offer was given as to whether the accused wanted to be searched in presence of a Gazetted Officer and it was also disclosed to the accused that one Gazetted Officer was present with the raiding party. When the accused appellant agreed to be searched in presence of the Gazetted Officer, search was conducted. But I am unable to accept such submission made by Mr. Singh, learned Advocate of the N. C. B. in view of the judgment of the Hon'ble apex Court in the case of Ahmed v. State of Gujarat (supra), wherein it was held that right to be searched before another Gazetted Officer or a Magistrate cannot be taken away merely because the Officer going to search happens to be a Gazetted Officer, who has been empowered either by the Central Government or by the State Government by a General or a Special order. Apart from this in the Full Bench decision of this Court in the case Jadunandan Roy (supra) it has been held that mere presence of a Gazetted Officer of the same department, to which the searching Officers belong, with the raiding party is not an adequate compliance of section 50 of the Act. Considering the entire evidence on record and relying upon the judgments referred to above, I am of the view that the mandatory provision of section 50 of the Act has not been complied with in the present case in sofar as appellant No. 1 is concurred. ( 15 ) BUT so far as the appellant No. 2, namely, Goutam Saha is concerned, the question of compliance with the provision of section 50 of the N. D. P. S. Act does not arise because in his case there was no personal search. Section 50 of the Act, which is mandatory in nature, deals with the personal search of the accused and not the search of a house or a godown. In the present case 2002. 9 Kgs of Ganja was recovered from the godown of the appellant No. 2 Goutam Saha at Berhampure pursuant to a follow-up action of the recovery of 25 Kgs. In the present case 2002. 9 Kgs of Ganja was recovered from the godown of the appellant No. 2 Goutam Saha at Berhampure pursuant to a follow-up action of the recovery of 25 Kgs. of Ganja from the appellant No. 1 in front of Shantinketan Hotel near Sealdah fly over at Calcutta. It is in the evidence of P. W. 5, who was a member of the raiding party, that the godown at Berhampore is a part of the residential premises of Goutam Saha. The godown was found under lock and key. Goutam Saha was called when he came out with the key of the godown. The godown was opened in presence of witnesses with the key supplied by Gautam Saha. In such circumstances the provisions of section 50 of the Act are not at all applicable in the case of Goutam Saha. ( 16 ) AS regards the provisions of section 52a of the N. D. P. S. Act I am unable to accept the contention made by the learned Advocate appearing for the appellants. In my considered view there was sufficient compliance of the said previsions of section 52a. It appears from the order dated 30. 4. 97 passed by the learned special Judge N. D. P. S. Act that six sealed packets were produced before the said Court containing a sample of seized Ganja and all the packets appeared to be in six big developes and in the front side of such envelops were written the particulars and the description of the sample with some signatures and on the reverse side there were seals on each packet with the office embossed and this was done for bringing it to the notice of the Court. It further appears from the said order that those sealed packets were produced with a godown register and also two big packets duly bound with polythene sheet and properly sealed and labelled for notice of the Court and a big gunny bag allegedly containing some seized Ganja were produced before the Court. The sealed packets were seen and signed while the register was also signed by the Court and office seals were embossed on them. The sealed packets were seen and signed while the register was also signed by the Court and office seals were embossed on them. Although there are, discrepancies in the evidence of prosecution witnesses regarding the compliance of section 52a, from the ordersheet of learned Judge, Special Court it becomes clear that the provisions of section 52a was sufficiently complied with in the present case. ( 17 ) THE next argument advanced by the learned Advocate appearing for the appellants is that in the present case the prosecution has miserably failed to establish the ownership of the godown either by producing documents or by examining any other neighbouring witnesses. According to the learned Advocate of the appellants the prosecution should have established that the appellant is the owner and was in actual physical possession of the godown in question. The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the godown in question by producing documents or by examining any neighbouring witness. In such circumstances the recovery of alleged Ganja from the godown of the appellant No. 2 should be disbelieved. I am unable to accept such contention inasmuch as it appears from the evidence on record that the godown in question is a part of the residential house of the appellant No. 2 namely, Goutam Saha. When the raiding party appeared, Goutam Saha was called and he came out from his residence and handed over the key of the godown to the officers. With the help of the said key the godown was opened in presence of witnesses and recovery was made. In view of such evidence on record it cannot be denied that the owner of the godown was Goutam Saha and said godown was in possession of Goutam Saha. ( 18 ) FROM the discussions made above, I am of the view that in case of Kartick Shaw, from whose possession recovery of 25 Kgs. of Ganja was made, there was a total non-compliance of the provisions of section 50 of the N. D. P. S. Act. It does not appear from the evidence on record that the accused Kartick Shaw was ever told by any offer that he has got a valuable right to be searched in presence of a Magistrate or a Gazetted Officer. It does not appear from the evidence on record that the accused Kartick Shaw was ever told by any offer that he has got a valuable right to be searched in presence of a Magistrate or a Gazetted Officer. Apart from that there is no cogent evidence that such officer was actually given to the accused Kartick Shaw. The accused is to be informed that he has got a valuable right to be searched in presence of a Gazetted Officer or a Magistrate and such offer should be given to the accused as far as possible in presence of respectable persons witnessing the arrest and search. Taking a Gazetted Officer with the raiding party makes such Officer indirectly interested in the success of the raid and such an Officer can not be said to be an independent person. As it has been held by the Full Bench decision of this Court mere presence of a Gazetted Officer of the same department to which the searching Officer belongs, is not an adequate compliance of section 50 of the N. D. P. S. Act. But so far as the accused appellant No. 2, namely, Goutam Saha is concerned, the question of campaining with the provision of section 50 of the N. D. P. S Act does not arise since there was no personal search of accused Goutam Saha. ( 19 ) SO far as the provision of section 52a is concerned, I am of the view that the orders passed by the learned Special Judge, N. D. P. S. Act clearly indicates that there was sufficient complience of the said provision. ( 20 ) LASTLY it has been submitted by Mr. Roy the learned Advocate of the appellant that the confessional statement of the appellants were recorded when the appellants were the custody of the Narcotic Control Bureau and such statements were made by the appellants under compulsion and coercion. But I am unable to accept such contention. There is no doubt that the confessional statement was recorded when the appellants were in the custody of the Intelligence Officer, but that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure of compulsion. But I am unable to accept such contention. There is no doubt that the confessional statement was recorded when the appellants were in the custody of the Intelligence Officer, but that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure of compulsion. No complain was made by the appellant when he was produced before the Court on the next day nor had he made any complaint thereof when he was examined under section 313 of the Code of Criminal Procedure. If in such circumstances the trial Court holds that the confessional statement was voluntarily made and it was safe to rely upon such statement, it cannot be said that the trial Court committed any error in doing so. ( 21 ) IN view of the discussion made above I allow this appeal in part. Since there is a total non-compliance of section 50 of the N. D. P. S. Act, I set aside the order of conviction and sentence passed on accused appellant No. 1 namely, Kartick Shaw. He is accordingly acquitted of the charge and may be discharged from his bail bond. But so far as the accused appellant No. 2 Goutam Saha is concerned, I do not find any reason to interfere with the order of conviction and sentence passed by the trial Judge against him. The appeal is accordingly allowed in part. Appeal allowed in part.