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2013 DIGILAW 454 (CAL)

Swapan Ghosh @ Babu Ghosh v. STATE OF WEST BENGAL

2013-07-16

TOUFIQUE UDDIN

body2013
Judgment :- Toufique Uddin, J. This appeal arose out of the judgment and order of conviction dated 29.11.2011, 30.11.2011 and 09.12.2011 passed by the learned Judge, Special Court under NDPS Act –Cum- ADJ, 3rd Court, Howrah in T.R. No. 11 of 2010 convicting the appellant under section 20(b)(ii) of the NDPS Act and sentencing him accordingly. In the background of this appeal, the fact in a nutshell is as follows: On 8.6.2010 at 20-50 hours, SI Tarun Kr. Paul of Domjur P.S., District- Howrah received a telephonic information from a source that one person is selling ganja at an open place at Domjur Auto stand by the side of Howrah Amta Road. The information was diarised vide Domjur P.S. GD Entry No. 574 dated 9.6.2010 and after informing I/C Domjur P.S., Sri Shekhar Roy, the police team being led by S/I Tarun Paul being accompanied by ASI Goutam Karmakar and some other police personnel proceeded towards the place of occurrence. At 20:55 hours three public witnesses viz. Gorachand Patra, Pradip Saha and Gobinda Das were asked to accompany them after briefing them the reason for doing so and they agreed. Then the police team along with the public witnesses proceeded and found 2/3 persons standing besides Howrah Amta Road just by the side of Domjur Auto Stand. As the police team chased them, two persons fled away and one person could be apprehended who had one old nylon bag in his left hand grip. The said person disclosed his name as Swapan Ghosh @ Babu Ghosh. S/I Tarun Kr. Paul immediately informed I/C Domjur P.S. Sri Shekhar Roy, who arrived at the PO at 21:05 hours. He introduced himself as a Gazetted officer to the apprehended person. W hen option was given to the accused person to be searched before a Magistrate or a Gazetted Officer, he declined to be searched in present of a Magistrate and thereafter I/C, Domjur P.S. directed S/I Tarun Kr. Paul to conduct search and on search 3 kg. ganja wrapped in a Bengali newspaper was recovered from a nylon bag and cash of Rs. 10,000/- as sale proceeds of ganja and out of that, 200 gm. of ganja was taken out as sample. Both the sample ganja and main alamat were sealed and packed at the spot after preparation of seizure list in presence of witnesses and accused and duly signed by them. 10,000/- as sale proceeds of ganja and out of that, 200 gm. of ganja was taken out as sample. Both the sample ganja and main alamat were sealed and packed at the spot after preparation of seizure list in presence of witnesses and accused and duly signed by them. One copy of seizure list was supplied to the accused person. A written complaint was lodged. After investigation, police has submitted charge-sheet against the accused person under section 20(b) of the NDPS Act. The contents of the charges were read over and explained to him when the accused person pleaded not guilty and claimed to be tried. To contest this case the prosecution examined as many as nine witnesses while none was examined on the side of the defence. However, the accused person was examined under section 313 of Cr.P.C. The defence case as it appeared from the trend of cross-examination and reply given by the accused person at the time of examination under section 313 Cr.P.C. was denial of offence with a plea of innocence. On hearing of both sides, the learned Trial Court convicted the present appellant by the impugned judgment. Now, the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not. Section 20(b) of the NDPS Act read as follows: “20. Punishment for contravention in relation to cannabis plant and cannabis. On hearing of both sides, the learned Trial Court convicted the present appellant by the impugned judgment. Now, the point for consideration is if the impugned judgment suffers from any material irregularity and calls for any interference or not. Section 20(b) of the NDPS Act read as follows: “20. Punishment for contravention in relation to cannabis plant and cannabis. – (1) W hoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder, -- (b) Produces, manufactures, possesses, sells, purchases, transports, imports interstate, exports inter-state or uses cannabis, shall be punishable— (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b), -- (A) and 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) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;” At the outset it requires to be mentioned that despite call none came to argue on behalf of the State in this case. Waiting for a considerable time, I took up the hearing on the submission made by the learned Counsel for the appellant who is waiting for a long time. Even information was sent to the learned Counsel for the State to argue, but none came. Amongst others learned Counsel for the appellant argued inter alia as follows : (i) Local witnesses turned hostile; (ii) Signature was taken on a blank paper; (iii) Material Exhibit- 1 was not visible and (iv) Last but not the least, argument of the learned Counsel for the appellant was that if the Trial Court at all holds the accused guilty in that event the period already undergone to the 3½ years out of 4 years be taken into account in this case. I have duly considered the submissions made by the learned Counsel of the appellant. To appreciate the case from a better angle, some relevant pieces of evidences are required to be noted down. I have duly considered the submissions made by the learned Counsel of the appellant. To appreciate the case from a better angle, some relevant pieces of evidences are required to be noted down. Exhibit- 2 is the FIR lodged by Tarun Kr. Paul, S/I of Police. He stated in evidence that on 8.6.2010 at 8-50 p.m. he received a source information over telephone that some persons were selling ganja at an open place at Domjur Auto stand by the side of Howrah Amta Road. When reached the place, he found 2/3 persons standing beside Howrah Amta Road just by the side of Domjur Auto Stand and they were doing something with a suspicious manner. On seeing the presence of the police personnel, 2/3 persons fled away while the present appellant was caught. After necessary formalities and giving option to him, he was searched bodily and it was found that one nylon bag loaded with ganja wrapped with an old Bengali newspaper weighing 3 kgs. including old nylon bag and cash of Rs. 10,000/-. Those were recovered and seized from the possession of the present accused/appellant. After observing necessary formalities, seizure list was prepared and a copy was served to him. The accused was given the option to be searched by the Executive Magistrate but he agreed to be searched by the Gazetted Police Officer. Of course, he refused to put so in writing. P.W.- 1 is Tarun Kr. Paul. He deposed what he stated in his complaint (exhibit- 1). In evidence it appears that I/C Sekhar Roy came to the spot. He disclosed his identity to the accused as Gazetted Officer. He also expressed to the accused that whether he was in need of any Magistrate for search and seizure but he declined. He declined to search the person of the police also. Then as per instruction of I/C, Tarul Kr. Paul conducted the search in respect of the accused and 3 kgs. of ganja was recovered from his bag and a sum of Rs. 10,000/- was also recovered. Packing and seal etc. were done according to rule. P.W.- 1 was cross-examined extensively by the accused. P.W.-2 is a maker of ready-made garments. Police asked him to sign on a paper. He signed it. The signature on the label marked Mat. 1/a/2. P.W.- 3 has a grocery shop. He also signed the seizure list. 10,000/- was also recovered. Packing and seal etc. were done according to rule. P.W.- 1 was cross-examined extensively by the accused. P.W.-2 is a maker of ready-made garments. Police asked him to sign on a paper. He signed it. The signature on the label marked Mat. 1/a/2. P.W.- 3 has a grocery shop. He also signed the seizure list. In cross-examination he has stated that he knew nothing. He signed on a blank paper. P.W.- 4 is a constable. He corroborated the evidence of P.W.- 1. P.W.- 5 is another ASI of police. He signed the seizure list. In his presence ganja was seized from the accused. P.W.- 6 is another ASI of police personnel. He started Domjur P.S. Case No. 248/10 dated 8.6.10 under section 20(b) of NDPS Act against the accused. P.W.- 7 is I/C Bidhannagar East, District- North 24-Parganas. He received through a telephonic source information. He directed S/I Tarun Kr. Paul to work out the information and proceed to the spot. He corroborated the prosecution case. He stated that he disclosed his identity as police Gazetted Officer and gave option to be searched either in his presence or before a Magistrate but the accused wanted to be searched in his presence and search was conducted by Tarun Kr. Paul, S/I. About 3 kgs. ganja and cash of Rs. 10,000/-were recovered from the possession of the accused. In cross-examination it appears he did not put any seal on the seized articles. But this is a minor discrepancy. The whole case will not go by this fact. The other witnesses have corroborated the prosecution case. The totality of the circumstances and the materials on record show that the Trial Court rightly convicted the present appellant. Next comes the question of punishment. It appears that the appellant has already served out 3½ years of sentence. The offence is not a trifle one. I find no merit to reduce the sentence. Accordingly, the criminal appeal stands dismissed. Let a copy of this judgment along with LCR be sent back to the learned Trial Court immediately. Criminal Section is directed to supply the urgent photostat certified copy of this judgment to the parties, if applied for.