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2004 DIGILAW 539 (CAL)

DILIP DAS v. STATE OF WEST BENGAL

2004-08-11

AMIT TALUKDAR, P.K.DEB

body2004
AMIT TALUKDAR, J. ( 1 ) QUESTIONS that have fallen for consideration in these appeals have strictly been taken care of the statute itself. That is how those are to be disposed. ( 2 ) AT the Bar it has been submitted that as the amount of the HEROIN (Mat. Exts. I, II and III) falls within the category of small quantity the conviction recorded by the learned Trial Court in respect of the charge of section 27a of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act) was not maintainable. Further it has been canvassed that the evidence on record does not fulfill the ingredient of the charge of section 27a of the said Act as there is no material either with regard to harbouring of any offender or financing any business in respect of narcotic drugs. ( 3 ) SHRI Pradeep Kumar Roy, learned Senior Counsel appearing in support of the appellants Utpal Deb and Paritosh Debnath (for short, A1 and A2 respectively) in C. R. A. No. 424 of 2002 further submitted that the provisions of section 52a of the said Act was also not complied with as no inventory were prepared and as the provisions of section 42 sub-clause (2) of the said Act also, stood in breach as there was previous information taken down in writing by p. W. I the same was not sent to the superior officer and the articles not being produced before the Court. Section 52,sub-section (2) of the said Act was also not complied with. ( 4 ) ACCORDING to Shri Roy, learned Senior Counsel since the recovery made from Al was 1. 0746 gm. while from A2 was 0. 3731 gm.- the quantity being falling within the definition of small quantity of the said Act they were liable to get the benefit of section 21 (a) of the said Act the conviction in respect of section 27a of the said Act was liable to be set aside. ( 5 ) SHRI Arup C. Chatterjee appearing on behalf of the appellant Dilip Das (for short, A3) in C. R. A. No. 423 of 2002 adopted the submission of Shri Roy and submitted that from the possession of A3 only 0. 5636 gm. was recovered. ( 5 ) SHRI Arup C. Chatterjee appearing on behalf of the appellant Dilip Das (for short, A3) in C. R. A. No. 423 of 2002 adopted the submission of Shri Roy and submitted that from the possession of A3 only 0. 5636 gm. was recovered. ( 6 ) WE have had the very able assistance of the learned Public Prosecutor for the State (appearing with Ms. Minoti Gomes and Amojit De ). In his usual clarity learned Public Prosecutor disputed the argument advanced by Shri Roy, learned senior Counsel with regard to the question that as the amount seized falls within the category of small quantity the charge in respect of section 27a of the said Act was not maintainable. He referred to section 37 (b) of the said Act and showed that the said provision made exceptions for those guilty for offences punishable under section 19 or section 24 or section 27a of the said Act and also for offences involving commercial quantity which, according to the learned public Prosecutor by necessary implication excluded the operation of small quantity. ( 7 ) ACCORDING to the learned Public Prosecutor section 27a of the said Act has its distinct character and even if the charge of section 27a of the said Act is proved then simply the amount falling within the definition of small quantity would act as a clear impediment in reducing the magnitude of the case and converting it to section 21 (a) of the said Act. ( 8 ) LEARNED Public Prosecutor, however, submitted in his usual thoroughness that since Act 9 of 2001 amending the provisions of the said Act came into effect on and from 02. 10. 2001 and on the said date the trial and/or investigation was pending the benefit of section 41 of the Act 9 of 2001 was available to the appellants and the question of small quantity defined in the Act 9 of 2001 would be applicable. He showed the decision of Basheer vs. State of Kerala, 2004 Cr. LJ 1418, to illustrate his point. ( 9 ) AS in the prelude we have found that the statute itself is quite speaking in this fact scenario let us, advert to the same to better appreciate the submissions of Shri Pradeep Kumar Roy, learned Senior Counsel and Arup C. Chatterjee. LJ 1418, to illustrate his point. ( 9 ) AS in the prelude we have found that the statute itself is quite speaking in this fact scenario let us, advert to the same to better appreciate the submissions of Shri Pradeep Kumar Roy, learned Senior Counsel and Arup C. Chatterjee. ( 10 ) THE appellants were arrayed in N. D. P. S. Case No. 17 of 2001 before the learned Trial Court which found them guilty in respect of the charge of section 27a of the said Act and sentenced them to suffer ten (10) years rigorous imprisonment each and to pay a fine of Rs. 1 lakh and in default of payment of the same they were directed to suffer further rigorous imprisonment for another three (3) years by the impugned judgment and order dated 28. 8. 2002. ( 11 ) DURING the trial on the basis of the chargesheet submitted by P. W. 12 all the appellants were directed to answer the charge in respect of section 27a of the Act for having been"found financing and engaging in illicit sale of heroin, a manufactured narcotic drug and 10 purias, 6 purias and 4 purias together with a sum of rs. 85,70 and 50/- were recovered from your possession receptively for which all of your failed to produce any documents violating the provision of section 2 (viii) (a) (iii) of N. D. P. S. Act" ( 12 ) THE main evidence on behalf of the prosecution is of P. W. 1, who is a sub-Inspector of Police, who on the basis of source information which was diarised after having come to know that some people were dealing in heroin near Balak Sangha Math. He proceeded to the spot along with his force and at about 8. 00 p. m. of 09. 9. 01 found the appellants were moving suspiciously and as they tried to escape they were apprehended and were given option of being searched by a Gazetted officer or a Magistrate. But as they were willing to be searched by a departmental Officer, he sent information to P. W. 11, who was a Gazetted Officer, who arrived at the spot and search thereafter was conducted which resulted in the seizure of heroin prepared under a seizure list (Ext. 2 ). P. W. 1 lodged the written complaint (Ext. 1 ). P. Ws. 2 ). P. W. 1 lodged the written complaint (Ext. 1 ). P. Ws. 2, 3 and 4 deposed with regard to the search and seizure effected by P. W. 1 and P. W. 11. P. W. s 7, 8, 9 and 10 were tendered. ( 13 ) THE tenor of the examination of the appellants under section 313 of the code of Criminal Procedure shows:". . . . . FROM the evidence of the witness No. 1 for the prosecution it is seen that on 9. 9. 2001 at about 8 p. m. you accompanied with other accused were selling heroin. . . . . . . " ( 14 ) THE first branch of the submission of Shri Roy, learned Senior Counsel that the evidence on record does not justify the conviction in respect of section 27a of the said Act is now taken up. ( 15 ) FOR profitable discussion the provision of section 27a of the said Act is reproduced:"27a. Punishment for financing illicit traffic and harbouring offenders.-Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. " ( 16 ) FROM a plain reading of the said section it is manifested that in order to establish the charge of section 27a of the said Act which was inserted in the statute Book on and from 29. 5. 89 by Act 2 of 1989 it has to be shown that either a person indulges in financing or harbours some one who is engaged in the activities connected falling within the scope of section 2 (viiia) (i) to (v ). ( 17 ) SECTION 2 (viiia) of the said Act speaks of illicit traffic in relation to narcotic drugs and psychotropic substances meaning cultivation, engaging in the production, manufacture, possession, sale, purchase, dealing in any activities, handling as a whole etc. etc. ( 17 ) SECTION 2 (viiia) of the said Act speaks of illicit traffic in relation to narcotic drugs and psychotropic substances meaning cultivation, engaging in the production, manufacture, possession, sale, purchase, dealing in any activities, handling as a whole etc. etc. ( 18 ) THE principal evidence on record of P. W. 1 simply shows that the appellants were found in possession of the contraband articles (Mat. Exts. I, II and III); but, there was no evidence that either they were financing or harbouring any person engaged in the said trade. The supporting evidence of P. Ws. 2 to 4, who deposed with regard to mode of search and seizure effected by P. W. 1 in presence of P. W. 11 also simply speaks of apprehension of the appellants and recovery of the contraband articles. Barring that there is no other evidence in this direction. ( 19 ) A close look into the evidence on record prima facie shows that the conviction of the appellants in respect of the charge of section 27a of the said act is not at all maintainable and they are liable to be absolved from the same. ( 20 ) HOWEVER, while taking care of this situation we parried with the thought that in terms of the submission made at the Bar that the offence should be one in respect of section 21 (a) of the said Act and as it was a lesser charge to section 27a of the said Act which is a higher charge than section 21 (a) of the said Act the same can be whittled down and find the appellants guilty in respect of the said charge. ( 21 ) FROM Ext. 23 the report of the Chemical Analyst we find that the gross weight of the packets which were tested under three different headings - A, B and C reflected the total weight as follows: a = 1. 0746 grams, B = 0. 5636 grams and C = 0. 3731 grams. ( 22 ) THE three samples - A, B and C in the Chemical Analyst's Report (Ext. 23) confirmed that the same were heroin. ( 23 ) IF that be so, definitely the amount falls within the category of small quantity within the definition of section 2 (xxiiia) of the said Act as amended by act 9 of 2001 which reads as follows: 2. 23) confirmed that the same were heroin. ( 23 ) IF that be so, definitely the amount falls within the category of small quantity within the definition of section 2 (xxiiia) of the said Act as amended by act 9 of 2001 which reads as follows: 2. Definitions.-In this Act, unless the context otherwise requires,- (xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the central Government by notification in the Official Gazette. ' ( 24 ) THIS amendment was inserted by Act 9 of 2001 and became effective on and from 02. 10. 2001. In the table of the said notification in serial No. 56 HEROIN has been shown and small quantity in grams means 5 grams and commercial quantity in grams is 250 grams. As such, there is no doubt that the seized articles under the Seizure List (Ext. 2), although was heroin, falls within the definition of small quantity. The offence comes within the ambit of section 21 (a)of the said Act as amended by Act 9 of 2001 which reads as follows:"21. Punishment for contravention in relation to manufactured drugs and preparations.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,- (a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) ********** (c) **********" which was also amended and came into effect from 02. 10. 2001". ( 25 ) THE maximum punishment for the said offence may extend to rigorous imprisonment for a terms upto six months or with fine which may extend to Rs. 10,000/- or with both. ( 26 ) THINGS would have been much easier as earlier pointed out section 21 (a)of the said Act is a minor charge in respect of section 27a of the said Act. But, however, on a deep circumspection it can be easily seen that section 21 (a) of the said Act is not a cognate charge of section 27 A of the said Act. But, however, on a deep circumspection it can be easily seen that section 21 (a) of the said Act is not a cognate charge of section 27 A of the said Act. ( 27 ) A minor offence is an offence which is made out by some of the ingredients of a major offence. There has to be a common feature in the notice of the offence in the charge being graver to the accused of the circumstances going to constitute the other offence and then and there only it can be said that the latter charge may be called a minor offence to invoke the provision of section 222 of the Code of Criminal Procedure (for short, the said Code) and in that event only where the basic structure of the ingredients are common then only from a major charge it can be whittled down to a minor charge; otherwise not. ( 28 ) TO put it in another way - the offence which has no ingredient in common cannot be brought within the ambit of section 222 of the said Code. Different elements, different questions of fact, different ingredients of the offence debar the same to be minor to the other. In the case there cannot be a conviction for the other offence without specific charge for the same. ( 29 ) MINOR offence - the expression has not been defined in so many words and it is to be understood not in any technical sense but in the ordinary sense. Once it can be established that the minor offence denotes an offence made out of some or few of the ingredients of the major offence then safely the conviction can be altered to a lesser one. For example, section 323 of the said Code is definitely a minor offence in respect of an offence in respect of an offence of grievous hurt punishable under section 325 of the Indian Penal Code. ( 30 ) SECTION 222 of the said Code reads as follows:"222. When offence proved included in offence charged.- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. When offence proved included in offence charged.- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have been satisfied. " ( 31 ) IN the clear analogy of the aforesaid logistics it is amply clear that there is material difference between the ingredients of section 27a of the said Act and section 21 (a) of the said Act which have found place in the Statute Book in view of the Act 9 of 2001 w. e. f. 02. 10. 2001 and taking cue from the submission of the learned Public Prosecutor and the decision of the Supreme Court in basheer vs. State of Kerala (supra) we could have straightaway without a whimper altered the charge and found the appellants guilty in respect of a lesser offence. ( 32 ) BUT since that is not to be. What next ? ( 33 ) WE have two options opened before us. We can remit the matter before the learned Trial Court for framing a fresh charge or straightaway absolve the appellants. Which would be feasible ? section 464 of the said Code reads as follows:"464. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of Appeal, on confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, it may - (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whateven manner it thinks fit: provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the fact proved, it shall quash the conviction. " ( 34 ) SECTION 464 of the said Code shows that in the event of any omission to frame or absence of or error in a charge no finding or sentence can be deemed invalid unless it can be shown there is a failure of justice has in fact been occasioned. ( 35 ) SECTION 464 (1) of the said Code has to be understood in the light of the provision where a Court is of opinion - the facts are such no valid charge could be preferred. It can quash the conviction. ( 36 ) UNDER ordinary circumstances the matter could have sent back as felt earlier for framing a fresh charge in the light of our observations. ( 37 ) BUT, however, in view of the fact that as we have found that at best the charge in respect of section 21 (a) of the said Act can be sustained against the appellants which is punishable at its highest with rigorous imprisonment upto six (6) months and fine of Rs. 10,000/ -. The appellants, as we find, have been in custody since the date of their apprehension (09. 9. 01) and the proceedings of the learned Trial Court reveals they were all through in custody till the trial was over and after they preferred their respective appeals which were admitted by the Principal Senior Criminal Division Bench on 29. 11. 02 they have all through been in custody. They have served out much more than the maximum sentence prescribed under the statute. No useful purpose would be served by directing the learned Trial Court to undergo the said exercise. 11. 02 they have all through been in custody. They have served out much more than the maximum sentence prescribed under the statute. No useful purpose would be served by directing the learned Trial Court to undergo the said exercise. ( 38 ) EVEN if the appeals are remitted back to the Trial Court for remand on the question of framing of a fresh charge in respect of the offence of section 21 (a) of the said Act, is done by us. But, as the highest sentence, specified in the said charge, has already been spent out by the appellants we do not feel it would be of much help. ( 39 ) BEFORE we conclude it is necessary to advert to the other portion of the argument advanced by Shri Pradeep Kumar Roy, learned Senior Counsel in respect of the question that although P. W. 1 had reduced into writing the prior information but did not send the same to his superior officer. ( 40 ) FROM the evidence of P. W. 1 we find he received a source information that some people were dealing in heroin at Balak Sangha Math which he diarised and thereafter proceeded to the spot. In his cross-examination P. W. 11 the inspector of Police and the immediate superior officer of P. W. 1 admitted:-"i received GD entry reduced in writing by the then O. C. , Rishrah. (read P. W. D" ( 41 ) APART from the said evidence, which is quite contrary to the stand taken by Shri Roy, learned Senior Counsel as we find that the place of occurrence -balak Sangha Math is a public place the provisions of section 43 of the said Act will have application and section 42 of the said Act cannot be applicable in the instant case. ( 42 ) NEXT, the question with regard to section 52 of the said Act. This provision cannot be said to be mandatory in nature and even if there is non-compliance of the same strictly in accordance with law it cannot vitiate the trial when the prosecution has been able to prove its case. We also, on the other hand, however, do not feel that there is otherwise much substance in the sub-mission of Shri roy, learned Senior Counsel for A1 and A2 on this point. We also, on the other hand, however, do not feel that there is otherwise much substance in the sub-mission of Shri roy, learned Senior Counsel for A1 and A2 on this point. ( 43 ) ACCORDINGLY, we quash the conviction and sentence recorded by the learned Trial Court in terms of our above finding. ( 44 ) APPEALS are accordingly disposed of. ( 45 ) THE appellants are directed to be released forthwith. Appeals dispossed of.