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2004 DIGILAW 788 (CAL)

MD. MOINUDDIN v. STATE OF WEST BENGAL

2004-12-22

ARUN KUMAR BHATTACHARYA, BHASKAR BHATTACHARYA

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS appeal is at the instance of two convicted persons and is directed against order dated 28th August, 2001 and 29th August, 2001 passed by the learned Special Judge, 6th Bench, City sessions Court, Calcutta in N. D. P. S. Case No. 37 of 1997 thereby holding that the appellants are guilty under Section 29 read with Section 21 of the n. D. P. S. Act and consequently, imposing sentences of rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- to each of the appellants. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for one year for the offence committed under Section 21 of the n. C. P. S. Act. Both the sentences were, however, directed to run concurrently. ( 2 ) THE Prosecution case is based on a compliant lodged by the narcotics Control Bureau and the case made out in the said complaint may be summarised thus : (a) Acting on own intelligence, a group of Officers of Narcotics Control bureau (N. C. B.) led by a Gazetted Officer had been to the spot in front of Northern Side of Victoria Memorial Hall, Caluctta and as per planning, ambushed there at about 13:45 hrs. on 17th September, 1997. (b) After a few minutes, at about 14:00 hrs, a white Maruti Van bearing no. WB-02-B-1685 coming from Western side, stopped in front of victoria Memorial Hall. Immediately, the officers of N. C. B. surrounded the said Maruti Van. The appellant No. 1 namely, Md. Moinuddin, was driving the Van and the appellant No. 2 named Shri Baidhyanath ghatak @ Bapi was being seated beside him. The N. C. B. Officers disclosed their identity to them and expressed their intention to search the Maruti Van and also the persons. On being asked by the officers, the driver of the van disclosed his identity as Md. Moinuddin, and the co-passenger as Shri Baidhyanath Ghatak @ Bapi. (c) The above two persons were offered an option if they wanted to be searched personally before a Magistrate or a Gazetted Officer. They were also informed that one Gazetted Officer was accompanying the raiding party. They opted to be searched before the accompanying gazetted Officer. (d) Two persons were called upon from the onlookers to witness the search of the persons and vehicle. They were also informed that one Gazetted Officer was accompanying the raiding party. They opted to be searched before the accompanying gazetted Officer. (d) Two persons were called upon from the onlookers to witness the search of the persons and vehicle. On search in presence of two independent witnesses, nothing was found from the vehicle, but a polythene packet containing brown coloured powdered substance believed to be Heroin was recovered from Md. Moinuddin which was wrapped in his wearing lungi below the naval region. (e) An amount of Rs. 8,000/- was recovered from the right side pocket of the long trouser of Shri Baidhyanath Ghatak @ Bapi which was brought for making advance payment against the delivery of Heroin. (f) On being asked by the Officers, Md. Moinuddin admitted that he brought the Heroin for sale to Shri Baidhyanath Ghatak @ Bapi. A small quantity from the said recovered substance was tested with the field test kit and it responded positive to the test of Heroin. The said polythene packet containing the brown powder was wieghed by the Officers in their balance scale in presence of the said two accused, the two independent witnesses and the Gazetted Officer and the brown powder weighed 235 Gms. (gross) with the polythene packet. ( 3 ) ON the basis of the aforesaid complaint, charge was framed against the accused persons for committing offence punishable under Section 29 read with Section 21 of the N. D. P. S. Act. Separate charge was framed against md. Moinuddin for possessing 235 Gms of Heroin for the purpose of sale to appellant No. 2 under Section 21 of the said Act. ( 4 ) AT the time of trial, the Prosecution examined nine witnesses in support of the Prosecution case. The accused did not adduce any evidence in support of their defence. They were, however, examined under Section 313 of the Code of Criminal Procedure and ultimately, as indicated earlier, the learned Sessions Judge found the appellants guilty and accordingly, convicted and passed sentences upon them. ( 5 ) BEING dissatisfied, the appellants have come up with the present appeal. ( 6 ) MR. Roy, the learned Advocate appearing on behalf of the appellants has raised two pure questions of law. According to Mr. ( 5 ) BEING dissatisfied, the appellants have come up with the present appeal. ( 6 ) MR. Roy, the learned Advocate appearing on behalf of the appellants has raised two pure questions of law. According to Mr. Roy, in this case although it is the definite case of the Prosecution that relying upon a source information they recovered Heroin from the person of appellant No. 1 after searching both the appellants and the Maruti Van by which the accused arrived, it appears from the evidence adduced by the Prosecution that the provisions contained in Section 42 (2) and 50 of the N. D. P. S. Act have not been complied with. ( 7 ) MR. Roy contends that it does not appear from the evidence on record that prior to the alleged search of appellant No. 1 he was informed of the eight conferred upon an accused person under N. D. P. S. Act to be searched either before a Gazetted Officer or a Magistrate. ( 8 ) MR. Roy next contends that even if a Gazetted Officer accompanies the raiding party itself, in such a case, it is the duty of the Investigating agency to bring another Gazetted Officer available near by, if the accused wants to be searched in his presence. According to him, if a Gazetted Officer is a party to the raiding team, the object of Section 50 is frustrated. ( 9 ) MR. Roy further contended that in this case, no material has been produced before the Court to show that the requirement of Section 42 (2) of the N. D. P. S. Act has been complied with by communicating the source information in writing to the immediate superior officer within the time prescribed therein and for non-compliance of such provision, the conviction is liable to be set aside. ( 10 ) MR. Roy further contends that apart from the aforesaid two technical points, in this case, the actual seizure of the Heroin has not been proved by any independent witnesses. He further submits that there was no justification of even implicating appellant No. 2 who was neither found with the possession of Heroin with him nor was he involved in any way with the dealing of Heroin. He, thus, prays for setting aside the order of conviction. ( 11 ) MR. He further submits that there was no justification of even implicating appellant No. 2 who was neither found with the possession of Heroin with him nor was he involved in any way with the dealing of Heroin. He, thus, prays for setting aside the order of conviction. ( 11 ) MR. Himanshu De, the learned Senior Advocate appearing on behalf of the N. C. B, has vehemently opposed the aforesaid contentions raised by Mr. Roy. According to Mr. De, as bare reading of Section 50 of the Act will show that it applies only to the case of a search of a person and does not extend to a search of a vehicle or container or a bag or premises. He, thus, submits that for the purpose of searching the vehicle in question there was no necessity of complying with the requirements of Section 50 of the Act. In support of such contention Mr. De relies upon the following decisions : (a) Madanlal and Anr. v. State of H. P. , 2003 SCC (Cr) 1664 (b) Sfafe of Punjab v. Baldev Singh, 1999 SCC (Cr) 1080 (c) Megh Singh v. Sfafe of Punjab, 2004 SCC (Cr) 58 (d) Farid Ali v. Sfafe. 2001 C Cr LR (Cal) 418 (e) Saikou Jabbi v. Sfafe of Maharashtra, 2004 SCC (Cr) 481 ( 12 ) MR. De further contends that once possession of Heroin is established, the person, who claims that it was not a case of conscious possession, is required to establish such fact and as such, in this case, the appellants having failed to establish that possession of Heroin was not conscious, the order of conviction should be set aside. In support of such contention Mr. De relies upon the following decision of the Supreme Court. (a) Megh Singh v. Sfafe of Punjab, 2004 SCC (Cr) 58 (b) Madanlal and Anr. v. Sfafe of H. P. , 2003 SCC (Cr) 1664 ( 13 ) MR. De next contends that if an Empowered Officer or an Authorised officer under Section 41 (2) of the Act carries out a search, he would be doing so really under the provisions of Code of Criminal Procedure, namely, Sections 100 and 165 thereof and if there is no strict compliance with those provisions of Code of Criminal Procedure, such search would not be per se illegal and would not vitiated the trial. In support of such contention Mr. De relies upon the following decisions : (a) State of Punjab v. Baldev Singh, 1999 SCC (Cr) 1080 (b) Saj'an Abraham v. State of Kerala, 2001 SCC (Cr) 1217 (c) M. Prabhulal v. Assistant Director, Directorate of Revenue intelligence, 2003 SCC (Cr) 2024 (d) Narayanaswamy Ravishankar v. D. R. I. , 2003 Cr LJ 27 (e) Abdul Rashid Ibrahim Mansuri v. State of Gurat, 2000 SCC (Cr) 496 ( 14 ) MR. De further contends that non-examination of independent witnesses cannot vitiate the trial or conviction and even on the basis of confessional statement under Section 67, a person can be convicted. In support of such proposition, Mr. De relies upon the following decisions of the supreme Court : (a) M. Prabhulal v. D. R. I. , 2003 SCC (Cr) 2024 (b) Narayanaswamy Ravishankar v. D. R. I. , 2003 Cr LJ 27 ( 15 ) MR. De further contends that even if there is any illegality in seizure, no prejudice has been caused to the accused persons and as such, on the ground of irregularity in seizure, the order of conviction cannot be set aside. Mr. De further submits that in this case no allegation of enmity with the officers of the N. C. B. has been alleged by the accused and as such, there is no plausible reason for falsely implicating the accused. Mr. De, thus, prays for dismissal of the appeal. ( 16 ) BEFORE we proceed to consider the respective submissions advanced by the learned Counsel for the parties, we propose to discuss the evidence adduced by the Prosecution for the purpose of verifying what materials had been brought before Court in support of the Prosecution case. ( 17 ) P. W.-1 is an Intelligence Officer, N. C. B. , Eastern Zonal Unit, calcutta-17. He filed the complaint under the order of his Superior which he proved in evidence. He denied the suggestion that complaint was based on false and fabricated story. He, however, admitted that there was no recommendation of any higher authority on the petition of complaint filed in court. ( 18 ) P. W.-2 is the Assistant Chemical Examiner attached to Chemical laboratory, Customs House, Caluctta. He has proved the report of examination of materials alleged to have been recovered from the appellant No. 1. He, however, admitted that there was no recommendation of any higher authority on the petition of complaint filed in court. ( 18 ) P. W.-2 is the Assistant Chemical Examiner attached to Chemical laboratory, Customs House, Caluctta. He has proved the report of examination of materials alleged to have been recovered from the appellant No. 1. ( 19 ) P. W.-3 is also attached to N. C. B. as an Intelligence Officer. He has merely stated that on 17th September, 1997, he was a member of the raiding party near northern side of Victoria Memorial Gate. He denied the suggestion that he was not a member of a raiding party. ( 20 ) P. W.-4 is another Intelligence Officer of N. C. B. Eastern Zonal Unit. He was a Godown Officer. On the date of incident, the 17th September, 1997, according to him, after the articles were seized, those were kept in the godown and such fact was mentioned in godown register. The relevant entry in the godown register was proved by him. ( 21 ) P. W.-5 is another Intelligence Officer, attached to N. C. B. and according to him on 17th September, 1997, he along with Gazetted Officer and other Officers went to the Northern Side of Victoria Memorial Hall on the basis of intelligence and that at about 2 p. m. when one white Maruti Van came there, they stopped it and surrounded the car. According to the said officer, they disclosed their identity to the accused and expressed their purpose of surrounding the vehicle. It is further stated that the Officers disclosed to the appellants that they wanted to search the vehicle and they gave them offer if they wanted to be searched by Gazetted Officer or a Magistrate, it was further stated that in alternative they might get the vehicle searched by the gazetted Officer accompanying them and both the accused agreed to be searched in presence of Gazetted Officer namely, N. C. Patra, Superintendent. It was further stated that nothing was found in the car but an amount of 235 gms. of heroin was found from the person of appellant No. 1 while appellant no. 2 had a sum of Rs. 8,000/- in his right side pocket. It was further stated that nothing was found in the car but an amount of 235 gms. of heroin was found from the person of appellant No. 1 while appellant no. 2 had a sum of Rs. 8,000/- in his right side pocket. According to the said officer, after seizure of the articles and the vehicle, both the accused made voluntary statement in the office and after recording the statement both the accused were arrested. He denied the suggestion that the appellant No. 2 was not found sitting in the Maruti Car or that no option was given in terms of Section 50 of the N. D. P. S. Act and that no recovery of cash money or any heroin was made. ( 22 ) P. W.-6 is another member of raiding team. He also stated that after the arrival of Maruti Van, the raiding party had given an option to the accused whether they wanted to be searched in the presence of Gazetted officer or a Magistrate and also gave option whether they liked to be searched by the Gazetted Officer accompanying the raiding party itself as they had also a Gazetted Officer with the team. He repeated the versions of the witnesses deposed earlier. ( 23 ) P. W.-7 was the Superintendent of N. C. B. for four years and on 17th September, 1997 he attended his office. According to him, on that date "one intelligence" was recorded and the original intelligence was kept with the zonal Director, N. C. B. The gist of the intelligence was kept in the record and on the basis of the gist he was djrected by the Zonal Director to proceed for a raid. He was the leader of that raiding party. He narrated the same statement that one of the Officers present with them gave option to the accused that they would be searched if they liked in presence of a Magistrate or a Gazetted officer and they also informed them that a Gazetted Officer was present with them and that the accused might be searched in presence of the Gazetted officer with the raiding party. ( 24 ) P. W.-8 proved the alleged voluntary statement made by the appellant No. 1 which was marked as Ext. 8. ( 25 ) P. W.-9, another Officer of N. C. B. , proved the alleged voluntary statement made by the appellant No. 2. ( 24 ) P. W.-8 proved the alleged voluntary statement made by the appellant No. 1 which was marked as Ext. 8. ( 25 ) P. W.-9, another Officer of N. C. B. , proved the alleged voluntary statement made by the appellant No. 2. ( 26 ) AFTER hearing the learned Counsel for the parties and after going through the aforesaid materials on record, we are of the view that in this case provisions contained in Section 50 of the N. D. P. S. Act have not been complied with for the following reasons. ( 27 ) NO independent witness apart from the members of the raiding party has been examined in this case showing that the appellants were informed of their "right" mentioned in Section 50 of the Act to be searched in the presence of either a Magistrate or Gazetted Officer. Merely because an option was given either to be searched in the presence of a Gazetted officer or a Magistrate without disclosing the right conferred upon the accused person, in our opinion, such offer is no compliance of the said provision as pointed out by a three-Judges Bench of the Supreme Court in the case of laleswar Rajak Kalchand Dhobi v. State of Gujrat reported in (2002)7 SCC 704 . ( 28 ) MOREOVER, if the search was made on the basis of source information, it was the duty of the Investigating Agency to show that it has also complied with the requirement of Section 42 (2) of the said Act by communicating such information in writing to his immediate Superior Officer. In this case none of the Prosecution witnesses has proved such communication. Although, Mr. De, appearing on behalf of the appellants, tried to impress upon this Court by referring to the evidence given by P. W.-9 that a report was submitted to his Superior Officer, in our opinion, the sending of a report of seizure cannot be said to be a compliance of requirement of section 42 (2) of the Act. Such report was sent to the Superior Officer in terms of Section 57 of the Act. Therefore, such non-compliance itself is sufficient to set aside the conviction. Such report was sent to the Superior Officer in terms of Section 57 of the Act. Therefore, such non-compliance itself is sufficient to set aside the conviction. ( 29 ) OVER and above, in this case, it appears from the evidence adduced by the Prosecution that the moment the Maruti Van stopped in front of the victoria Memorial Hall, the raiding party surrounded it and searched the vehicle and also searched appellants in person. If such be the fact, there cannot be any case under Section 29 of N. D. P. S. Act against the appellant no. 2 who was merely found in the Maruti Van with a sum of Rs. 8. 000/- in his pocket. ( 30 ) APART from the aforesaid facts, the case put forward by the prosecution that Appellant No. 2 was the intending purchaser and the sale was proposed at Victoria is also not tenable. If the appellant No. 2 intended to purchase the Heroin, there was no necessity of coming to the Victoria memorial Hall with money in the Van of seller itself. Moreover, in the complaint, it is stated that the appellant No. 2 brought the money for advance payment. In our view, it is equally preposterous to suggest that for the purpose of making advance payment, a purchaser is required to come to Victoria Memorial with the seller with money in the car of the seller. Therefore, the Prosecution case is an absurd one even on fact. ( 31 ) WE now propose to consider the decisions cited by Mr. De. ( 32 ) IN the case of Madanlal and Anr. v. State of H. P. (supra), it has been held by the Apex Court that once possession of Heroin is established, the person who claims that it was not a conscious possession has to establish it, because the fact how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is to be drawn from possession of illicit articles. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is to be drawn from possession of illicit articles. In the case before us, we have already pointed out that in order to come to a conclusion that the appellant No. 1 was found to be in possession of the Heroin on search consequent to a secret information received, the prosecution must establish that requirements of Section 50 have been complied with and in the absence of such compliance, we are unable to hold that the appellant No. 1 was found to be in possession of forbidden articles. The said decision, therefore, does not help the respondent in any way. ( 33 ) THE case of State of Punjab v. Baldev Singh (supra) rather goes against the Prosecution. In this case a Constitutional Bench in clear terms has stated that non-compliance of Section 50 vitiates the conviction. We fail to understand how the said decision can be of any help to the Prosecution in this case. ( 34 ) IN the case of Megh Singh v. State of Punjab (supra) all that has deen reiterated by a Division Bench of Supreme Court is that once possession is established, it is for the accused to prove that possession was not conscious. We have already pointed out that in this case, the possession of Heroin by the appellant No. 1 has not been proved in accordance with law. ( 35 ) IN the case of Farid Ali v. The State (supra) it has been held that provision contained in Section 50 applies only in the case of search of a person as distinguished from the search of any premises etc. By relying upon the said decision, Mr. De wanted to argue that in this case search was made of the vehicle and as such, Section 50 is not required to be complied with. We are not at all impressed by such submission. In the case before us, in the vehicle nothing was found. Thereafter, according to the Prosecution, the appellants were searched in person pursuant to source information and thus, in such a case, Section 50 is squarely applicable. We, thus, find that the said decision cannot have any application to the fact of the present case. In the case before us, in the vehicle nothing was found. Thereafter, according to the Prosecution, the appellants were searched in person pursuant to source information and thus, in such a case, Section 50 is squarely applicable. We, thus, find that the said decision cannot have any application to the fact of the present case. ( 36 ) THE case of Saikou Jabbi v. State of Maharashtra (supra) is another case of Supreme Court where Supreme Court has stated that Section 50 applies only in the case of search of a person and does not apply in the case of search of vehicle, container, bag or premises. It is nobody's case that in the present case any amount of Heroin was found from the vehicle; on the other hand, it is the definite case of the Prosecution that on the basis of source information they searched appellant No. 1 in person after taking him out of the car and found the Heroin in his undergarment. Such being the position, Section 50 directly applies and the aforesaid decision has no application to the fact of the present case. ( 37 ) THE case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra) is one where the Supreme Court has in clear terms stated that non-compliance of Section 42 would become suspect and one causing prejudice to the accused but would not ipso facto vitiate the trial. In the case before us, in the absence of any independent witness, coupled with the fact that neither section 50 nor Section 42 (2) has been complied with, we are of the view that it is impossible to believe the story of the Prosecution simply on the basis of the alleged voluntary statements of the accused made in the office of the n. C. B. which has been seriously disputed by the accused and the conviction of the appellant cannot be upheld on the basis of such statements alone and as such, the said decision is of no help to the Prosecution. ( 38 ) IN the case of M. Prabhulal v. Assistant Director, Directorate of revenue Intelligence (supra) the Supreme Court was dealing with a case of search, arrest and seizure of illicit articles while a Gazetted Officer was acting under Section 41 of the Act and therefore, it was held that there was no necessity of complying with Section 42 of the Act. In the case before us the definite case of the Prosecution is that it had proceeded on the basis of information and thus, Section 42 is clearly applicable and said decision cannot have any application to the fact of the present case. In the said case, the gazetted Officer himself conducted the search, arrested the accused and seized the contraband and as such, the Court held that he was acting under section 41 of the Act. In the case before us, the arrest memo namely Ext.-8 and Ext.-9 show that arrest was made not by the said Gazetted Officer but by Monotosh Sarkar, the P. W.-5. It appears from Exbt.-4, the search-cum-seizure list that it was Monotosh Sarkar, who conducted the search and seizure. Ext. 5 shows that the notice under Section 67 of the Act was issued by Monotosh Sarkar and not by the Gazetted Officer, the P. W.-7. ( 39 ) THEREFORE, in this case the Gazetted Officer was merely present with the raiding team for the purpose of complying with the provisions of section 50 of the Act whereas in the case of M. Prabhulal (supra), the gazetted Officer himself conducted search, arrested the accused and seized the illicit articles and for the above reasons, the Court held that he was acting under Section 41 of the Act and as such there was no necessity of complying with the requirement of Section 42 (2 ). We are, thus, unable to accept the contention of Mr. De that the said decision approves seizure of prohibited articles in a case governed under Section 42 even though there is no independent witness. ( 40 ) IN the case of Narayanaswamy Ravi Shankar (supra) the Supreme court was considering a case where huge amount of Heroin concealed in the bottom of a suitcase alleged to be belonging to the appellant was recovered when he was attempting to transport the same from the International Airport, chennai to Singapore. ( 40 ) IN the case of Narayanaswamy Ravi Shankar (supra) the Supreme court was considering a case where huge amount of Heroin concealed in the bottom of a suitcase alleged to be belonging to the appellant was recovered when he was attempting to transport the same from the International Airport, chennai to Singapore. In the fact of such case, the Supreme Court was of tne view that as no search or seizure was conducted on the person of the accused, provision of Section 50 was not attracted. It was further held that as the search and seizure had taken place at the Airport which is a public place, provision of Section 43 would be applicable and as such, there was no necessity of complying with the provisions contained in Section 42 (2) of the act. In the case before us, the vehicle of the appellant No. 1 and the appellants were searched in person and therefore, the said decision cannot have any application. In this case, according to the Prosecution, the Investigating Officer and his team, surrounded the Maruti Car of the appellant No. 1 and taking the appellants out of the car, searched both the appellants and the car on the basis of a previous 'intelligence'. Thus, it is a pure case of Section 42 and not section 43 merely because the car was stopped in a public place. The aforesaid decision, thus, has no application to the facts of the present case. ( 41 ) WE, thus, find that the decisions cited by Mr. De are of no avail to his clients. On consideration of what have been stated above, we are unable to uphold the convictions and sentences imposed upon the appellants and accordingly, we set aside the order of conviction and sentence on the grounds disclosed in our judgment. The learned Sessions Judge, as it appears from the order impugned, did not take into consideration ail the aforesaid aspects. ( 42 ) THE appeal is thus allowed. The appellants be released from the judicial custody forthwith, if not wanted in any other case. The sum of Rs. 8,000/- recovered from the appellant No. 2 be returned to him after expiry of the period of Limitation for preferring Special Leave application against this order. Arun Kumar Bhattacharya, J.- I agree.