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2006 DIGILAW 348 (CAL)

NAVA MAZUMDAR v. STATE OF WEST BENGAL

2006-06-15

ALOK KUMAR BASU, SADHAN KUMAR GUPTA

body2006
S. K. GUPTA, J. ( 1 ) THIS appeal has been preferred against the judgment and order of conviction dated 1. 8. 2001 passed by the judge, Special Court under the NDPS Act, 6th Court, Barasat in case No. N-66 of 1997. By the said order, the learned Judge convicted both the appellants for the commission of the offence under Section 22 of the ndps Act and sentenced both of them to suffer rigorous imprisonment for 10 years each and also to pay fine of Rs. 1,00,000 (Rupees one lakh) each in default to suffer further rigorous imprisonment for six months. Being aggrieved and dissatisfied with the said order of conviction, the convicts/appellants have preferred this appeal. ( 2 ) THE case in question was started on the basis of a complaint filed under Sections 22 and 29 of the NDPS Act against the accused persons. It was stated in the said complaint that on 5. 12. 1997 at about 8 p. m. the officers of NCB, Calcutta intercepted one woman and a man at Taltala Math near lalkuthi Bus stoppage, Halisahar where they were waiting with 23 packets of medicines. Being questioned, they disclosed their identity as Sikha Biswas and Naru mazumdar and informed that those 23 packets contained medicines buprenorphine Injection -11 packets, Methergin Injection 8 packets and Syntocinon Injection-4 packets. As those injections were psychotropic substance, so as a follow up measure those were seized under proper seizure list. The voluntary statements of those two persons were recorded and it transpired from the statement of accused Sikha Biswas that one swapan Debnath was involved in the commission of the. offence. As such, notice was served upon him as per law. Said Swapan debnath appeared before the NCB Office and on 10. 12. 1997 he voluntarily stated that he invested Rs. 1,20,000 (Rupees One. Lakh twenty Thousand) for purchasing those medicines. As after investigation a case under Sections 22 and 29 of the NDPS Act was made out against the accused persons, so prosecution report was submitted against them in the Court accordingly. During trial charges under Section 22 of the N. D. P. S. Act were framed against accused Sikha Biswas and Naru Mazumdar while charge under section 29 of the N. D. P. S. Act was framed against accused Swapan Debnath. During trial charges under Section 22 of the N. D. P. S. Act were framed against accused Sikha Biswas and Naru Mazumdar while charge under section 29 of the N. D. P. S. Act was framed against accused Swapan Debnath. The charges were read over and explained to the accused persons who all pleaded not guilty and claimed to be tried. Prosecution in all has examined 8 (eight) witnesses to prove the charges against the accused persons. One D. W. has been examined on behalf of the accused Swapan Debnath, who has been acquitted, to prove the fact that while he was in custody he retracted the confession alleged to have been made by him. The other two accused persons viz. Sikha Biswas and Naru Mazumdar did not adduce any evidence in support of their contention. It appears from the trend of the cross-examination as well as from the examination of the accused persons under Section 313 cr. PC that it is the case of the defence that they were falsely implicated in connection with this case. Learned Trial Judge considered the entire materials on record and thereafter by his impugned Judgment he came to the conclusion that prosecution was in a position to prove the charges against sikha Biswas and Naru Mazumdar and as such he was pleased to pass the order of conviction against them. So far as accused swapan Debnath is concerned, the learned judge was of the opinion that there is room for doubt regarding the genuineness of the prosecution claim and as such he was pleased to acquit him. ( 3 ) THE point to be considered, so far as the present appeal is concerned, as preferred by accused Sikha and Naru, is, whether on the basis of the materials on record the learned Trial Judge was justified in passing the order of conviction against the appellants. ( 4 ) WE have already mentioned that the charge as framed against the appellants is under Section 22 of the N. D. P. S. Act. It is the case of the prosecution that in contravention of the provisions of the Act the accused persons/appellants possessed psychotropic substance and as such they were liable to be punished as per provisions of the n. D. P. S. Act. It is the of case of the prosecution that on 5. 12. It is the case of the prosecution that in contravention of the provisions of the Act the accused persons/appellants possessed psychotropic substance and as such they were liable to be punished as per provisions of the n. D. P. S. Act. It is the of case of the prosecution that on 5. 12. 1997 at about 8 p. m. 23 packets of medicines containing Buprenor- phine, Methergin, and Syntocinen injections were recovered from the possession of the accused Sikha Biswas and Naru mazumdar. If we look into the evidence as adduced by the prosecution witnesses then it will appear that there was information to the NCB officers that Sikha Biswas had in her possession those substances. In fact, the prosecution witnesses have clearly mentioned that they recovered those contraband articles from the possession of Sikha Biswas while she was standing near the Bus Stand. All the prosecution witnesses clearly deposed to that effect and this fact along with the statements made by this Sikha Biswas clearly show that in fact those articles were recovered from the possession of Sikha biswas. ( 5 ) THE learned advocate for the appellant argued that in absence of any independent witness it will not be proper to hold accused sikha Biswas guilty of the offences. In fact he submitted that there were independent witnesses available on the spot at the time of alleged incident and so there could not be any reasonable explanation for the prosecution not to examine any such person. ( 6 ) WE have considered the submissions of the learned Advocate for the appellant. Undoubtedly there were some local people present when the incident of seizure took place. It is also a fact that none of those persons could be examined by the prosecution. But simply for that reason, it cannot be said that the prosecution case should be disbelieved. We find no reason whatsoever that the prosecution witnesses particularly the responsible officers of NSB to depose falsely against this lady/appellant Sikha Biswas without any reason whatsoever. The claim of the prosecution witnesses has been further strengthened by the statements made by this Sikha Biswas which has been marked Exhibit in connection with this case. If we look into the said statement then it will appear that this appellant gave a clear description about the manner in which the seizure of the contraband articles were made from her possession. If we look into the said statement then it will appear that this appellant gave a clear description about the manner in which the seizure of the contraband articles were made from her possession. She has also stated as to from where she could collect those articles. The manner in which the statement has been given clearly shows that it was voluntary in nature and in absence of any positive evidence to counter the claim of the prosecution witnesses, we find no reason to accept the contention of the appellant Sikha Biswas that the statement in question was obtained from her by way of coercion and threatening. In fact during entire trial this appellant did not think it proper to retract this confession before the court and only at the time of her examination under Section 313 of the Code of Criminal Procedure she has denied this statement. This belated denial or the retraction of the statement by this appellant does not inspire our confidence at all and we find no reason to disbelieve the statements of the prosecution witnesses that Sikha Biswas made a voluntary statement before the n. C. B officials. So from this statement, as well as from the statements of the witnesses, we are of the opinion that prosecution has been able to prove that those 23 packets containing contraband medicines were recovered from the possession of this sikha Biswas by the N. C. B officials. From the evidence of the chemical examiner; we find that those medicines were contraband in nature and in fact psychotropic substance. Under such circumstances, we are of the opinion that the learned Trial Judge was perfectly justified in holding accused sikha Biswas guilty for the offence under section 22 of the NDPS Act. ( 7 ) WE have already pointed out that along with this appellant Sikha Biswas one Naru mazumdar and Swapan Debnath also faced the trial. So far as Swapan Debnath is concerned, it appears from the impugned judgment that the learned Trial Judge was pleased to acquit him. But the learned Trial judge was pleased to convict the accused naru Mazumdar for the commission of the offence under Section 22 of the NDPS Act. Mr. Mukherjee learned advocate for the appellant Naru Mazumdar argued that in fact no charge of conspiracy was framed against this appellant Naru Mazumdar, although, nothing was seized from him directly. But the learned Trial judge was pleased to convict the accused naru Mazumdar for the commission of the offence under Section 22 of the NDPS Act. Mr. Mukherjee learned advocate for the appellant Naru Mazumdar argued that in fact no charge of conspiracy was framed against this appellant Naru Mazumdar, although, nothing was seized from him directly. In support of his contention he has drawn our attention to the statement of the accused appellant Sikha Biswas. It appears that this Sikha Biswas made two statements, one on 5. 12. 1997 and another on 7. 12. 1997. On 5. 12. 1997 Sikha Biswas did not mention anything about the involvement of this appellant Naru Mazumdar. But in her statement dated 7. 12. 1997 she stated that on 5. 12. 1997 when she was waiting with the packets of medicines at that time she came across a person named Naru mazumdar, a resident of Kanchrapara, earlier known, to her. She has further stated that both of them at that time were talking regarding business matter. Of course, this sikha Biswas has stated in her statement that she took a loan of Rs. 60,000 from this appellant Naru Mazumdar and, invested the said sum in her business. The learned advocate for the appellant argued that this statement does not necessarily mean that accused appellant Naru Mazumdar advanced Rs. 60,000 to this lady for the purpose of this illegal business. Moreover, he further argued that there is nothing on record to show that actually Rs. 60,000 was advanced by Naru Mazumdar to Sikha biswas and as such Mr. Mukherjee argued that this part of the statement of Sikha biswas cannot be said to be incriminating, so far as Naru Mazumdar is concerned, as alleged by the prosecution witnesses. We fully agree with this submission of the learned Advocate for the appellant Naru mazumdar and we are of opinion that this statement of Sikha Biswas cannot be the basis of conviction of appellant Naru mazumdar for the offence under Section 22 of the N. D. P. S Act. That apart, if we look into the evidence of the P. W. 2 Sri Rabindra nath Banerjee, who was one of the important members of the raiding party, then it will appear that he has stated in his evidence to the effect. That apart, if we look into the evidence of the P. W. 2 Sri Rabindra nath Banerjee, who was one of the important members of the raiding party, then it will appear that he has stated in his evidence to the effect. "the accused Sikha Biswas stated to us that she kept those articles for giving delivery to a person. He also stated that the other accused Naru mazumdar came to the PO by chance and she was talking to the said Naru mazumdar" . This statement of the PW2 clearly demolishes the prosecution case so far as the appellant Naru Mazumdar is concerned. We fail to understand as to why in spite of such a statement of the PW2, this Naru mazumdar was held guilty for the commis- sion of the alleged offence under Section 22 of the NDPS Act. It is unfortunate that the learned Court below ignored this fact while convicting the appellant Naru Mazumdar. ( 8 ) MR. Mukherjee, learned Advocate for the appellant Naru Mazumdar further drew our attention to the provision of Section 35 of the NDPS Act which runs as follows: "35. Presumption of culpable mental state - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation - In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in or reason to believe a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability" . ( 9 ) IT appears from this section that a provision has been made of the effect that accused will be permitted to take a defence to prove the fact that he had no "culpable mental state" with respect to the commission of the offence, as alleged by the prosecution. Mr. Mukherjee in support of his contention has cited a decision reported in Abdul rashid Ibrahim Mansuri v. State of gujarat, 2000 Cr. LJ 1384. Mr. Mukherjee in support of his contention has cited a decision reported in Abdul rashid Ibrahim Mansuri v. State of gujarat, 2000 Cr. LJ 1384. , the Hon'ble Apex Court observed as follows: "the burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence where he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence" . ( 10 ) TAKING analogy from the ratio, as decided by the Hon'ble Apex Court in this respect, we are to see whether there from the materials available on record this accused appellant Naru Mazumdar has been able to discharge the onus in support of his claim of innocence. We have already pointed out that it is a case of the prosecution that the contraband articles were recovered from the possession of the accused Sikha Biswas at that time this appellant Naru Mazumdar was present. But that does not mean that simply due to his presence it may be said that this accused appellant Naru Mazumdar had the 'culpable mental state' like that of accused Sikha Biswas. On the contrary, the statement of Sikha Biswas clearly shows that at the material time Naru Mazumdar was talking with her as they had previous acquaintance. In addition to that PW2 has clearly admitted that Sikha Biswas informed the raiding party that Naru mazumdar came to the spot by chance. So it is palpably clear that this appellant Naru mazumdar has been able to discharge his onus to prove that he had no 'culpable mental state' in respect of the alleged commission of the offence, as allegedly committed by the accused Sikha Biswas. So it is palpably clear that this appellant Naru mazumdar has been able to discharge his onus to prove that he had no 'culpable mental state' in respect of the alleged commission of the offence, as allegedly committed by the accused Sikha Biswas. Moreover, we find from the record that no charge of conspiracy was framed against accused Naru mazumdar and as such in view of our discussion above, we are of opinion that the prosecution has hopelessly failed to prove the charge under Section 22 of the NDPS act so far as accused Naru Mazumdar is concerned. ( 11 ) MR. Duttagupta, learned Advocate for the State clearly conceded this position at the time of argument. ( 12 ) UNDER such circumstances, we are of opinion that the learned Trial Judge was not justified in convicting the accused appellant Naru Mazumdar for the offence under Section 22 of the NDPS Act and the said order of conviction, as passed by the learned court below is liable to be set aside. ( 13 ) THEREFORE, from our above discussion, we are of opinion that the prosecution has been able to prove the charge under Section 22 of the NDPS Act so far as accused appellant Sikha Biswas is concerned and we hold that the learned Trial Judge was perfectly justified in convicting her accordingly and we find no reason whatsoever to interfere with the said finding. But at the same time we are of opinion that the learned Trial judge was not at all justified in holding accused appellant. Naru Mazumdar guilty for the commission of offence under Section 22 of the N. D. P. S. Act and the order of conviction, so passed by the learned Trial Judge, in our considered opinion, is liable to be set aside. ( 14 ) IN result, the appeal is allowed on contest in part. The order of conviction, as passed by the learned Trial Judge in respect of accused/appellant Sikha Biswas under section 22 of the NDPS Act is affirmed. ( 15 ) THE order of conviction, as passed by the learned Trial Judge so far as accused/appellant naru Mazumdar is concerned, is set aside and the said appellant is held not guilty for the said offence and is acquitted. He is released at once, if not wanted in connection with any other case. ( 15 ) THE order of conviction, as passed by the learned Trial Judge so far as accused/appellant naru Mazumdar is concerned, is set aside and the said appellant is held not guilty for the said offence and is acquitted. He is released at once, if not wanted in connection with any other case. Send a copy of this judgment to the Correctional Home where both the appellants sikha Biswas and Naru Mazumdar are under detention for information and taking immediate action. Send also a copy of this judgment to the court below along with Lower Court records for information and taking appropriate action. Urgent Xerox certified copy of this judgment, if applied for, may be handed over to the parties. Appeal allowed in part.