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2002 DIGILAW 492 (CAL)

Nayana Barman v. N. C. B. State

2002-07-26

Nure Alam Chowdhury, S.K.Gupta

body2002
JUDGMENT : - Nure Alam Chowdhury, J.: This appeal on behalf of the appellant Smt. Nayana Barman is directed against the judgment and order of conviction and sentence dated April 27, 2000 passed by the learned Judge, Special Court under N.D.P.S Act, and Additional District & Sessions Judge North 24 Parganas at Barasat convicting the appellant under section 21 of the N.D.P.S. Act and sentencing her to undergo R.I. for 10 (ten) years and also pay fine of Rupees 1 (one) lakh in default to undergo RI. for a further period of 2 (two) years. 2. The prosecution case is that on 13.9.97 acting on an intelligence a batch of Intelligence Officers including P.Ws. 1,3 & 5 and a lady sepoy (P.W. 4) led by a Gazetted Officer (Superintendent) of Narcotics Control Bureau ( hereinafter referred to as "NCB" for short), Eastern Zonal Unit Calcutta, intercepted the appellant at the platform No.1 of Palta Railway station at about 22.00 hrs. The officers disclosed their identities and on being' asked by the officers, the appellant also disclosed her identity. The officers then called two independent witnesses at the spot and offered an option to the appellant to be searched in presence of a Magistrate or a Gazetted Officer. The appellant was also told that one Gazetted Officer was present with them and if the appellant desired she might be searched before the said Gazetted Officer. The appellant agreed for the search in presence of the said Gazetted Officer and the said 2 independent witnesses and the lady sepoy (P.W.4). Accordingly on search of the person of the appellant by that lady sepoy, a polythene packet containing brown colored powder was recovered from the inside of the appellant's wearing blouse. A little of the said brown powder was tested by the officer with their drug detection kit and the same tested positive to the test of heroin. On weighment the polythene packet containing brown powder was found to weight 50 gms. The said brown-powder was seized along with the polythene packet in presence of the appellant, the said two independent witnesses under the supervision of the said Gazetted Officer and one sample in duplicate of 5 gms. On weighment the polythene packet containing brown powder was found to weight 50 gms. The said brown-powder was seized along with the polythene packet in presence of the appellant, the said two independent witnesses under the supervision of the said Gazetted Officer and one sample in duplicate of 5 gms. each drawn from the seized polythene packet were kept in cloth envelope sealed and signed by the appellant, the independent witnesses and the seizing officer and the rest quantity were kept in a separate cloth envelope properly sealed and signed by them. 3. The appellant was served with a copy of the seizure list and a notice under section 67 of the N.D.P.S. Act asking her to attend N.C.B. Office, Calcutta for further examination. The appellant accordingly went there on 13.9.97 and made a written statement (Ext. 6) wherein she confessed her guilt of possessing the heroin for sale and thus rendered herself liable to prosecution under section 21 of the N.D.P.S. Act for contravention of the prohibition under section 8 of the said Act. She was arrested at the N.C.B. Office on the same day (13.9.97) under section 43 of the N.D.P.S. Act. The sample drawn from the recovered heroin responded positive to the test of heroin in chemical test conducted by the chemical examiner in chemical laboratory at Customs House. Accordingly, the complainant (P.W.1), who is an Intelligence Officer of N.C.B. Calcutta lodged the complaint for taking cognizance of the said offence against the appellant and for her trial in accordance with law. 4. The appellant was thereafter placed on trial on the charge punishable under section 21 of the N.D.P.S. Act to which she pleaded not guilty. 5. Prosecution examined six witnesses in support of the prosecution case. 6. Among them P.W.1 was an Intelligence Officer of the N.C.B. who lodged the petition of complaint (Ext.1) against the appellant. 7. P.W.2 was the Assistant Chemical Examiner. He deposed that he analysed the sample received in sealed packet with copy of the test Memo found to weigh 5.00 gms. at the laboratory under the supervision of the Chemical Examiner and found that the sample contained di-acylyl morphine 67.4% popularly known as heroin which is a prohibited substance under section 8 of the N.D.P.S. Act. He proved his report (Ext. 2). 8. at the laboratory under the supervision of the Chemical Examiner and found that the sample contained di-acylyl morphine 67.4% popularly known as heroin which is a prohibited substance under section 8 of the N.D.P.S. Act. He proved his report (Ext. 2). 8. P.W. 3 was Intelligence Officer of the N.C.B. and was a participant in raiding party at Palta Railway station at 11 A.M. He deposed that they detained the appellant in platform No.1 and the appellant was searched by a lady sepoi at the adjacent bathroom of the platform. He also stated that the appellant was asked whether she wanted the presence of a Gazetted Officer or Magistrate. He denied that no offer under section 50 of the N.D.P.S. Act was given to the appellant. He also stated that a polythene packet was recovered from her possession in presence of two indepepdent witnesses and tested the covered article with their test kit which responded positive to the test of heroin and thereafter sample was taken which were duly packed and sealed. He also stated that they got prior information about the alleged incident and on getting specific information they went to Polta Railway station. 9. P.W.4 is lady sepoi who accompanied the raiding party. She stated in her evidence that the officers of NCB including a Gazetted Officer intercepted the appellant and she also identified the appellant in court. She also stated that she was asked to search the person of the appellant and accordingly she took the appellant to a ladies' bathroom on the railway platform and the officers were waiting outside but the appellant became puzzled and thereafter both of them came out of the bathroom and she took the packet from the appellant and handed over the same to the officials and thereafter took the appellant to their vehicle and left the P.O. In cross-examination she stated that no independent witness was present at the time of search of the appellant. 10. P.W. 5 was also a participant of the raiding party and an Intelligence Officer of the N.C.B. He deposed about the search and seizure, drawing of sample in presence of the independent witnesses and serving of notice under section 67 of the N.D.P.S. Act on the appellant. 11. P.W. 6, another Intelligence Officer of N.C.B and participant of the raiding party also corroborated the evidence of P.Ws. 11. P.W. 6, another Intelligence Officer of N.C.B and participant of the raiding party also corroborated the evidence of P.Ws. 3,4 & 5 regarding search and seizure of heroin from the appellant as also the voluntary confession of the appellant that the seized article was heroin. 12. No witness was examined on behalf of the defence but the defence case as could be gathered from the trend of cross-examination of the prosecution witness and the replies of the appellant in her examination under section 313 of the Cr. P.C. is that nothing was recovered from the appellant at Polta Railway station and the statement was taken from the appellant under coercion and no control and article was seized from her and the prosecution case is absolutely false and concocted. 13. Ld. Trial Judge, on consideration of the facts, circumstances, materials and the evidence on record, convicted and sentenced the appellant as above. 14. Assailing the impugned judgment ld. Advocate appearing on behalf of the appellant submitted that when a search is made by an empowered officer, who happens to be a Gazetted Officer, it is still obligatory for the prosecution to inform the accused of his right to be searched before another Gazetted Officer or before the nearest Magistrate in compliance with the mandatory provision of section 5 of the N.D.P.S. Act and the said provision has not been complied with in this case and as such the appellant is entitled to be acquitted and he cited the decision reported in 2000 S.C.C. (Cri.) 1407 (Ahmed vs. State of Gujarat and 2000 C.Cr. L.R. (Cal) 343 (Sukumar Mondal vs. State) in support of his submission. He further submitted that the evidence of P.W.4, the lady sepoy on close scrutiny does not inspire confidence that heroin was seized from the possession of the appellant and as such the appellant is entitled to be acquitted on that ground and cited the decision reported in 2001 (1) CHN 503 (Babu Das @ Nona vs. State of West Bengal) in support of his submission. 15. 15. He also submitted that the information pursuant to which the heroin was recovered from the appellant not being recorded in writing before search and the female officer conducting search being not searched before the seizure and no independent witness of recovery being examined and no explanation for such non-examination being given learned Trial Judge should have held that the recovery was not proved beyond doubt and he cited the decision reported in 2001 C.Cr.L.R. Cal 283 (Fatema Bibi @ Fatema-Bibi vs. State) in support of his submission. 16. It is also submitted that the appellant is entitled to be acquitted for noncompliance of the mandatory provision of sections 42 and 50 of the N.D.P.S. Act in this case and he cited the decision reported in JT 2002(4) SC 68 (Beckodan Abdul Rahiman vs. State of Kerala) in support of his submission. 17. Ld. Advocate appearing on behalf of the Narcotics Control Bureau submitted that there has been no violation of the provisions of N.D.P.S. Act regarding search or seizure in this case and the search and seizure have been made in accordance with law. He further submitted that in respect of the submission of non-compliance of section 50 of the N.D.P.S. Act, 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 be vitiated on that score alone. It is further submitted that the burden of proof on the appellant under section 35 could be discharged through different modes. One is that she could rely on the materials available in the prosecution evidence. Next is in addition to that she could elicit answers from prosecution witnesses through cross-examination to dispel any such doubt and she might also adduce other evidence when she was called upon to enter on her defence, but nothing of any such mode has been done on behalf of the appellant in this case. Decision reported in 2000 C.Cr.L.R. (SC) 239 (paras 18 & 22) has been cited in support of the said submissions. 18. Decision reported in 2000 C.Cr.L.R. (SC) 239 (paras 18 & 22) has been cited in support of the said submissions. 18. It is also submitted that although the provisions of N.D.P.S. Act should be strictly complied with but if that causes delay in trapping the accused which may bad to his escape, strict compliance need not be insisted upon and the decision reported in 2001 S.C.C. (Cri.) 1217 (Sajan Abrahan vs. State of Kerala) Head note "B" is cited in support of the said submission. 19. It is also submitted that the provisions of sections 52 and 57 of the N.D.P.S. Act which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 of the Act are by themselves not mandatory and the decision reported in 1994 (3) S.C.C.P. 322 (Para 23) (State of Punjab vs. Baldev Singh) is referred to in respect of the said submission. 20. It is further submitted under the proviso to section 42(1) of the N.D.P.S. Act the empowered officer has to carry out search between sunset and sunrise he must record the grounds of his belief and to that extent it is mandatory. Decision reported in 1999 S.C.C. (Cri.) 1080 (Para 18) (State of Punjab vs. Baldev Singh) referred to. Paragraph 57 of the said judgment is also referred to in support of his submission that the appellant has been rightly convicted and sentenced and materials on record and it is also submitted that there is no conceivable reason as to why a lady should be falsely implicated in such a case. 21. We have considered all the evidence and materials on record as well as the principles of the ratio of the decisions cited by the respective parties and we have no hesitation in holding that on the totality of the evidence on record there is no justifiable reason to interfere with the impugned judgment and order of conviction and sentence of the appellant by the ld. Special Judge. 22. The appeal therefore fails and is dismissed and the impugned judgment and order of conviction and sentence of the appellant by the learned Special Judge is confirmed. Appeal dismissed.