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Tripura High Court · body

2014 DIGILAW 161 (TRI)

Prantosh Paul v. State of Tripura

2014-05-03

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- Heard Mr. B. Deb, learned counsel appearing for the appellants as well as Mr. A. Ghosh, learned P.P. for the State. 2. Both the appeals are tied up together as those appeals have emerged from the same judgment of conviction and order of sentence dated 14.02.2011 passed by the Special Judge, Tripura, Agartala in case No. Special 43 of 2009. The appellants have been convicted for committing the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act, in short) as 10 Kg. of cannabis (ganja) were found in their possession when they were intercepted by the officers of the Enforcement Branch. It had been alleged that on 13.08.2009 when the appellants were carrying the alleged contraband narcotic substances in a maruti car bearing registration No. TR-01-B-0267, they were intercepted at Nagerjala and the said quantity of narcotic substances were found in two plastic packets in their possession. They were arrested and the ganja as recovered from them was seized by preparing a seizure list (Exbt. 1). After the investigation was complete, the charge sheet was filed against the petitioner under Section 20(b)(ii)(B) of the NDPS Act along with the forensic report by the State Forensic Science Laboratory (the SFSL, in short) which opined that the materials those were referred for examination were ganja, having the psychotropic ingredient. The charge was framed under Section 20(b)(ii)(B) of the NDPS Act to which the appellants pleaded total innocence and had claimed to face the trial. 3. To substantiate the charge, the prosecution has examined as many as 10 witnesses and introduced 4(four) documents (Exbt. 1 to Exbt. 4) in the evidence including the seizure list and the SFSL report. The appellants had been examined under Section 313 of the Cr. P.C. where he denied all the incriminating materials as referred. Thereafter, the impugned judgment and order was passed on purported appreciation of the evidence. Hence, these appeals are filed by the appellants. 4. Mr. 1 to Exbt. 4) in the evidence including the seizure list and the SFSL report. The appellants had been examined under Section 313 of the Cr. P.C. where he denied all the incriminating materials as referred. Thereafter, the impugned judgment and order was passed on purported appreciation of the evidence. Hence, these appeals are filed by the appellants. 4. Mr. B. Deb, learned counsel appearing for the appellant at the very outset has submitted that though in the First Information Report submitted by the informant namely, Nayan Jyoti Chakma (PW-1) it has been stated that on the tip of the secret information, the said operation was conducted but the said information borne in the GD entry No. 271 dated 13.08.2009 was neither produced in the trial nor the officer, who received the information namely, Atul Debbarma, Deputy Superintendent of Police (Enforcement Branch) was examined in the trial to establish that there had reasons to believe for conducting such search and seizure for breach of Section 8(C) of the NDPS Act. Mr. Deb, learned counsel has urged this Court to appreciate how the mandatory provisions of Section 42 and Section 52A along with Sections 53, 55 & 57 of the NDPS Act have been flouted by the designated investigating officer. He has taken this Court to the oral testimony of PW-10, who investigated the case. PW-10, Sanjit Sen has stated unequivocally that: On 11.09.2009 I have produced the seized alamats before Special Court for drawing sample on the alamats for sending it to the SFSL for chemical examination. Sample was drawn in presence of the court and that was sent to SFSL. After drawing sample the alamats were kept in the custody of the Enforcement Branch as per order of the Court. In the cross-examination he has stated as under: The secret information was received by Dy. S.P. Atul Debbarma. That information was not recorded in writing. No copy of that information was sent to any superior authority. I got the seized alamats on 14.08.2009 for the first time. Complainant seized the ganja and thereafter in course of investigation I re-seized the same. The seized ganga were not packed and sealed in presence of witnesses. I re-seized the ganja in the condition I got it. I did not prepare and inventory about the seized alamats while placing the same before the Special Judge in course of drawing sample. [Emphasis added] 5. The seized ganga were not packed and sealed in presence of witnesses. I re-seized the ganja in the condition I got it. I did not prepare and inventory about the seized alamats while placing the same before the Special Judge in course of drawing sample. [Emphasis added] 5. From the other side, Mr. A. Ghosh, learned Addl. P.P. appearing for the State in his usual fairness has submitted that the mandatory provisions of Section 42 and 52A of the NDPS Act have not been observed by the Investigating Officer or the seizing officers. For purpose of reference, this Court may revisit the provision of Section 42 of the NDPS Act. Section 42 of the NDPS Act provides that if such officer, meaning the designated officers, has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun rise and sun set after recording the grounds of his belief. Section 42 provides further that the officer who is competent to cause search and seizure in terms of the 42 of the NDPS Act, if he has reason to believe for knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property, which is liable for seizure or freezing or forfeiture under Chapter VA of this Act, is kept or concealed in any building, conveyance or enclosed place, he may search and seize. If the authorization is not practicable then it has to be written as regards the information received and under Sub-Section 2 of42 of the said Act, the officer concerned, who received the information and has taken down the said information in writing has obligation to communicate the same to the superior officer within 72 hours from recording of such information, vide proviso to Section 42 of the NDPS Act. Section 52A(ii) provides that: (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. 6. Mr. Deb, learned counsel appearing for the appellants has placed reliance on a decision of the apex court in Kishan Chand vs. State of Haryana, reported in (2013) 2 SCC 502 where the apex court has considered these aspects of the matter elaborately. The apex court in Kishan Chand (supra) has observed as under: 17. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh vs. State of Harayana: (2009) 8 SCC 539 . In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat: (2000) 2 SCC 513 , a three-Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham v. State of Kerala: (2001) 6 SCC 692 again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. However, in the case of Sajan Abraham v. State of Kerala: (2001) 6 SCC 692 again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case. The Court in paragraph 35 of the judgment held as under: [Karnail Singh (supra), SCC pp. 554-55, para 35] 35. In conclusion, what is to be noticed is that Abdul Rashid (supra) did not require literal compliance with the requirements of Sections 42(1) and42(2) nor did Sajan Abraham (supra) hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in Sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of Sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42by Act 9 of 2001. [Emphasis in original] 18. Following the above judgment, a Bench of this Court in the case of Rajinder Singh vs. State of Harayana: (2011) 8 SCC 130 took the view that total non-compliance of the provisions of Sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced. 7. Following the above judgment, a Bench of this Court in the case of Rajinder Singh vs. State of Harayana: (2011) 8 SCC 130 took the view that total non-compliance of the provisions of Sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced. 7. In Kishan Chand (supra) the apex court has further observed that: The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision. Here is a case of total non-compliance of the provision of Sections 42 and 52A of the said NDPS Act. From reading of the testimony of PW-10, this Court finds that there was no compliance of provisions of under Section 42 and 52A(2) of the NDPS Act and as such, the entire seizure was illegal and hence, based thereon no conviction can be returned. For purpose of reference, this Court has also appreciated the seizure list, Exbt. 1. No description is available there whether at the time of seizure the contraband substances were sealed, packed or imprinted with identifying marks as required. On the face of the statement made by the Investigating Officer, it is apparent that he had received the seized materials in two packets. Those packets were not sealed and without any mark whatsoever. As such, the seized materials were kept open and any sort of manipulation, thus is not above suspicion. The custody as provided by the NDPS Act is different from the custody of the other statutes. Unless the seized materials are properly sealed, packed and imprinted with due identity marks, the description of nature and quantity the object of the NDPS Act can be furthered in terms of the procedure laid down therein. The custody as provided by the NDPS Act is different from the custody of the other statutes. Unless the seized materials are properly sealed, packed and imprinted with due identity marks, the description of nature and quantity the object of the NDPS Act can be furthered in terms of the procedure laid down therein. This Court recently by the judgment dated 28.04.2014 in Safique Miah and another vs. State of Tripura, in CRL. A. No. 17 of 2011 has observed similarly, based on Kuldeep Singh vs. State of Punjab, reported in 2011 CRI. L.J. 2672 and Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, reported in (2000) 2 SCC 513 . Even Avtar Singh & Ors. vs. State of Punjab, reported in (2002) 7 SCC 419 has been considered to hold that unless the absolute duty saddled by Sections 42 and 52A of the NDPS Act is absolutely discharged, the conviction on the basis of such seizure and sampling is not warranted. 8. Having held so, the impugned judgment of conviction along with the order of sentence is set aside. The appellants are acquitted from the charge on benefit of doubt. It is stated by the learned counsel for the appellants that the appellants are on bail and as such, the liability of the sureties are discharged. In the result, both the appeals are allowed and disposed of. Send down the LCRs forthwith.