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2001 DIGILAW 400 (CAL)

Sukur Ali @ Suku v. State

2001-07-06

Joytosh Banerjee, Nure Alam Chowdhury

body2001
JUDGMENT Nure Alam Chowdhury, J. This appeal on behalf of the appellant Sukur Ali @ Suku is directed against the judgment & order dated 14.4.94 passed by the ld. Special Judge, 12th Bench, City Sessions Court, Calcutta in N.D.P.S. No. 27/93 /N.D.P.S. No. 56/93 convicting the appellant under section 21 of the N.D.P.S. Act, hereinafter referred to as N.D.P.S. Act and sentencing him to suffer RI. for 10 years and to pay a fine of Rs. 1,00,000/- (one lakh) in default to suffer further S.I. for six months. 2. Prosecution case, in brief, is that on 13.2.93, Intelligence Officers of Narcotic Control Bureau, hereinafter referred to as N.C.B., Eastern Zonal Unit, Calcutta, having their office at 4/2, Kereya Road, Calcutta - 70, had been to a place, in front of Bata Shop on Jawaharlal Nehru Road to work out an information from source regarding commission of offence under N.D.P.S. Act. While maintaining watch, they arrested the appellant Sukur Ali on identification by the source and recovered from his possession two packets of brown powder suspected to be heroin, inside the ploythene carrybag held in his hand. The appellant was taken to the aforesaid office of the N.C.B., where he made a confessional statement to the Intelligence Officers. The alamat was sealed and labelled and tested chemically in the chemical laboratory of the customs house. On the basis of the statement of the appellant Sukur Ali, another accused Zainal Abedin was also arrested. On receipt of the Chemical Analyst the N.C.B. Officer, (P.W. l) lodged the complaint under sections 21 & 21/29 of the N.D.P.S. Act against both the accused. Charge was framed under section 21 of the N.D.P.S. Act against the appellant Sukur Ali and under sections 21/29 of the N.D.P.S. Act against both Sukur Ali and Zainal Abedin. Both the accused, however, pleaded "Not guilty" to the charge and denied the prosecution case of arrest and seizure in the manner as alleged on behalf of the prosecution. 3. Prosecution examined 7 P.Ws. in support of the prosecution case. P.W.I is an intelligence officer of N.C.B. of the said office. He deposed that he filed the written petition of complaint (Ext. l), on 1.12.93 and proved the petition of complaint alleging inter alia, recovery of 1620 gms. 3. Prosecution examined 7 P.Ws. in support of the prosecution case. P.W.I is an intelligence officer of N.C.B. of the said office. He deposed that he filed the written petition of complaint (Ext. l), on 1.12.93 and proved the petition of complaint alleging inter alia, recovery of 1620 gms. of brown coloured substance contained in two packets of polythene in a polythene bag in his hand suspected to be heroin on search of his person and belongings in presence of two independent public witnesses and the samples of brown coloured powder from those two packets responded positive to the test of heroin with the Field Test Kit and the report of the chemical analyst dated 26.12.93 (Ext. 3) on test of the samples of the seized brown powder confirmed the substance to have responded positive to the test of heroin. P.W.2 was the Assistant Chemical Examiner, Custom House, Calcutta. He deposed that the relevant samples were tested by him and it responded to the test of heroin. He proved his report (Ext. 3). P.W. 3 was the officer-in-charge of the god own of N.C.B. P.W.4, was an Intelligence Officer and was a member of the raiding party. He deposed that on 13.2.93 at about 2 P.M. source identified the appellant carrying a polythene carry bag in his hand in front of Bata Shop at Jawaharlal Nehru Road and the appellant was encircled and the appellant gave out his name as "Sukur Ali" and the packets in his carrybag contained heroin. He also deposed that the employees of Bata Shop were requested to be witnesses for search and seizure but they refused and accordingly two witnesses from the crowd were collected and search and seizure were conducted in presence of those two witnesses. He also deposed that the approximate value of the seized heroin would be about one crore and sixty lacs in the internal market. In cross-examination, he stated that he was empowered under sections 42 & 43 of the N.D.P.S. Act to search and seizure and he was the seizing officer. He denied that the provisions of N.D.P.S. Act had not been complied with at the time of search and seizure. P.W.5 was another Intelligence Officer of N.C.B. He deposed that he recorded the voluntary confessional statement of the appellant in accordance with the law and proved the same (Ext. 12). He denied that the provisions of N.D.P.S. Act had not been complied with at the time of search and seizure. P.W.5 was another Intelligence Officer of N.C.B. He deposed that he recorded the voluntary confessional statement of the appellant in accordance with the law and proved the same (Ext. 12). P.W.6 another Intelligence Officer deposed -that he also recorded another voluntary statement of the appellant (Ext. 13) and he also recorded a voluntary statement of the other accused Jainal Abedin. P.W.7 is another Intelligence Officer, of N.C.B. He deposed that the appellant failed to explain the possession of the materials seized from him and that Rathin Das and Raju Prasad who were the public witnesses in the seizure list were not traceable. 4. No witness was however examined on behalf of the defence. However in answer to question No. 10 to his examination under section 313 of the Code of Criminal Procedure the appellant stated that he was arrested at night from his house at Rishra and later on this case was registered and he was innocent. 5. The Id. Special Judge, however, relied on the evidence of P.Ws. 4, 5, 6 & 7 and the forwarding report and held that the appellant was arrested on 13.2.93 in front of the Bata Shop at Jawaharlal Nehru Road and the seized material was heroin as proved from the evidence of P.W. 2 and that the confessional statement of the appellant was voluntary and there was no violation of the provision of section 50 of the N.D.P.S Act, and the Id. Judge found the appellant guilty of the charge under section 21 of the N.D.P.S. Act and convicted and sentenced him as above. Ld. Judge however acquitted the other accused Zainal Abedin of the charge under sections 29/21 of the N.D.P.S. Act as there was no evidence against him except his purported voluntary statement and the confessional statement of the co-accused, the appellant and nothing was found from his possession. The appellant was also acquitted of the charge under sections 29/21 of the N.D.P.S. Act accordingly. 6. Ld. Advocate appearing on behalf of the appellant placed the evidence and materials on record and strongly contended that the appeal must succeed for non-compliance of the provisions of section 50 of the N.D.P.S. Act in view of the decision of the Apex Court reported in (1) 1995 C. Cr. 6. Ld. Advocate appearing on behalf of the appellant placed the evidence and materials on record and strongly contended that the appeal must succeed for non-compliance of the provisions of section 50 of the N.D.P.S. Act in view of the decision of the Apex Court reported in (1) 1995 C. Cr. L.R. S.C.1., Ali Mustaffa Abdul Rahaman Moosa vs. State of Kerala, (2) 1998 S.C.C (Crl.) 1516, Namdi Francis Nuazor vs. Union of India & Anr., (3) 2000 C.Cr. L.R. (S.C.) 44, T. Hamza vs. State of Kerala, (4) 2000 C.Cr. L.R. (S.C) 74, Babu vs. State of Kerala, as also of the decision of this court reported in 2000 C.Cr.L.R. (CaD 343, Sukumar Mondal vs. State. 7. Ld. Advocate appearing on behalf of the State fairly submitted that there is no evidence or material on record in this case that the provision of section 50 of the N.D.P.S. Act has been duly complied with in this case regarding search and seizure. 8. Considering the submissions on behalf of the appellant and the State and the evidence and materials on record, we have no hesitation in holding that the appeal must succeed for non-compliance of the provision of section 50 of the N.D.P.S. Act as there is no evidence in this case that the empowered officer in this case had conveyed the information to the appellant of his right of being searched in the presence of a Magistrate or a Gazetted Officer at the time of the intended search. 9. Accordingly the appeal is allowed the impugned judgment and order of conviction and sentence passed by the ld. Special Judge against the appellant are set aside. The appellant is acquitted and he shall be released forthwith unless his detention is required in any other case. Joytosh Banerjee, J.: I agree. Appeal allowed.