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2014 DIGILAW 221 (TRI)

Tapan Sarkar v. State of Tripura

2014-06-12

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. Pankaj Saha, learned counsel appearing for the appellant as well as Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the state. 2. This appeal by the convict is directed against the judgment and order dated 22.01.2011 delivered in Case No. Special. 06/2010 by the Special Judge, Tripura, Agartala. By the said judgment, the appellant was convicted under Sections 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and he has been sentenced to suffer two years Rigorous Imprisonment with the fine of Rs.10,000, in default to suffer further Simple Imprisonment for three months. 3. Briefly stated, the prosecution case as revealed from the record is that one Asstt. Sub-Inspector of Police, Surjya Debbarma, Kamalasagar Out Post (PW.3) had lodged a suo motu First Information Report (FIR) with the Officer-in-Charge, Bishalgarh Police Station on 25.01.2010, disclosing that on that day when he alongwith other Police Constables from the said Out Post went out on patrol, during that time, in a place called Madhupur, he intercepted one Auto Rickshaw bearing registration No. TR-01C-2119 and seized 10 Kgs. of ganja in a gunny bag from the possession of the two persons, namely Tapan Sarkar and Litan Debnath. 4. On the basis of the said FIR, Bishalgarh P.S. Case No. 11/2010, under Sections 20(b)(ii) of the NDPS Act was registered and one Manik Debnath (PW.7) had carried out the investigation. On completion of the investigation, the chargesheet was filed against the accused persons. The charge was framed under Sections 20(b)(ii)(B) of the NDPS Act, to which the appellant pleaded total innocence and claimed to face the trial. 5. The prosecution adduced seven witnesses, seven documents and one material object to drive home the charge. On closure of the prosecution case, the appellant was examined under Section 313 of the Cr.P.C. for having response on the incriminating materials surfaced in the evidence so led by the prosecution. Thereafter, on the purported appreciation of the evidence, the petitioner was convicted and sentenced as stated. 6. This Court, while deciding the appeal, filed by the other co-accused, namely Litan Debnath, who was also similarly convicted in the same trial and by the impugned judgment, being Crl. A. No. 03/2011, has observed as under: 03. Thereafter, on the purported appreciation of the evidence, the petitioner was convicted and sentenced as stated. 6. This Court, while deciding the appeal, filed by the other co-accused, namely Litan Debnath, who was also similarly convicted in the same trial and by the impugned judgment, being Crl. A. No. 03/2011, has observed as under: 03. One Assistant Sub-Inspector of Police namely Surjya Debbarma, PW-3 on suspecting the speed of the vehicle (auto rickshaw), intercepted the same and found the appellant, who was driving the vehicle for carrying 10 kgs. of half dry ganja (cannabis) mixed with dust. PW-3 detained two persons, the appellant and another Tapan Sarkar. After interception PW-3 had seized the said Ganja, as reported to the Officer-in-Charge by his FIR dated 25.01.2010, on preparing the seizure list which seizure was witnessed by Ajit Debroy, PW-1 and one Swapan Sarkar. From Surjya Debbarma, the said cannabis was seized by the IO namely Manik Debnath, PW-7, in connection with Bishalgarh PS Case No. 11 of 2010 under Section 20(b)(ii)(B) of the NDPS Act, 1985 which was registered on the basis of the said FIR. The investigation was entrusted with the PW-7. On completion of the investigation the appellant and said Tapan Sarkar were charge-sheeted. The Special Judge framed the charge against them under Section 20(b)(ii)(B) of the NDPS Act to which they pleaded not guilty and claimed to face the trial. 04. To substantiate the charge so framed, the prosecution adduced as many as 7 witnesses out of whom PW-6 was tendered and he was not cross-examined. PW-1 is one of the constables working under PW-3. He was examined as the seizure witness. But he did not say anything about the quantity of the seized ganja nor has he stated that PW-3 had weighed that ganja before seizure. The other seizure witness, Swapan Sarkar, was not produced before the Court by the prosecution. PW-2 did not support the prosecution case. He has simply stated that his auto rickshaw was being driven by his brother Litan Debnath, the appellant herein on the relevant date and time. He was also declared hostile. PW-3 who intercepted the vehicle and seized the questioned cannabis in his examination-in-chief has replicated the statement as that what is available in the FIR but in the cross-examination he has categorically stated as under: I did not prepare any separate search list. He was also declared hostile. PW-3 who intercepted the vehicle and seized the questioned cannabis in his examination-in-chief has replicated the statement as that what is available in the FIR but in the cross-examination he has categorically stated as under: I did not prepare any separate search list. I did not weigh the seized ganja separately. I did not prepare any separate inventory. PW-4, Sr. Scientific Officer from the State Forensic Science Laboratory, Narsingarh who conducted the chemical examination has stated that the sealed transparent plastic packet containing some partially dried materials with fruiting/flowering tops and seeds (Exbt. A) was containing 30 grams of sample. On examination it was found that the psycho-ingredient present in the sample is of cannabis. PW-5, Gouranga Debnath has stated that the vehicle was seized in his presence. PW-7 namely Manik Debnath who investigated the case has narrated briefly how he conducted the investigation including carrying out the seizure from the informant (PW-3) as well as sending the sample taken out of the seized materials for chemical examination by the SFSL. He has further stated that after investigation was complete, he has satisfied from the materials so collected that the prima facie case against the appellant and another accused person had been made out of committing offence punishable under Section 20(b)(ii)(B) of the NDPS Act. 05. Mr. Bhowmik, learned senior counsel has submitted that search and seizure has been carried out in complete defiance to Section 50 of the NDPS Act, 1985. Apart that, he has submitted that at the time of seizure the quantity of the purported narcotic materials were not ascertained nor a proper inventory is made in presence of the witnesses. Mr. Bhowmik, learned senior counsel has further submitted that the first and foremost duty of the seizing officer under Section 50 of the NDPS Act is that to offer the persons suspected of carrying or involved in carrying the narcotic substances whether he would like to be searched in presence of a gazetted officer or not. His duty remains all the time to cause the appearance of the persons who was carrying or involved in carrying the narcotic substance to the search officer. His duty remains all the time to cause the appearance of the persons who was carrying or involved in carrying the narcotic substance to the search officer. If that is not possible the said officer having competence of search and seizure may search the person regarding narcotic substance following the procedure of Section 100 of the Cr.P.C., meaning thereby the search and seizure has been caused at least in presence of two independent witnesses. Mr. Bhowmik, learned senior counsel has submitted that no such attempt was ever taken. He has further submitted that from the cross-examination of PW-3 it becomes crystal clear that PW-3 did not comply the requirements of Section 50 of the NDPS Act, 1985. He has also submitted that what is required mandatorily under Section 50 of the said Act has to be strictly construed. If such requirements are not complied with, the entire seizure would be illegal. In support of his contention he has relied on a decision of the apex court in Narcotics Control Bureau vs. Sukh Dev Raj Sodhi reported in (2011) 6 SCC 392 where the apex court has held as under: 3. Now, the learned Counsel for the Appellant submits that in the instant case, from the search notice (at Annexure P-1), it will appear that the requirement of Section 50 of the NDPS Act has been complied with. From the said notice, it appears that the accused was informed that he has the option of being searched either in the presence of gazette officer or Magistrate and it appears that the accused wanted to be searched in the presence of gazette officer. The learned Counsel for the Appellant submits that by giving the option to the accused, the Appellant has complied with the requirement under Section 50 of the NDPS Act. 4. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed. 5. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed. 5. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazette officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazette officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an Endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. 6. That being the law laid down by the Constitution Bench of this Court on interpretation of Section 50 of the NDPS Act, we do not think that the obligation under Section 50 of the Act has been discharged statutorily by the Appellant in this case. We, therefore, find no reason to interfere with the finding made by the High court. The appeal is, accordingly, dismissed. 06. Mr. Debnath, learned Addl. PP has fairly submitted that it is apparent on the face of the records that the requirement of Sections 50, 52A(2) and 42 of the NDPS Act, 1985 has not been complied with by the searching and seizure officer. Above all, what has transpired from the admission made by PW-3 at the time of cross-examination is that there was no weighment at the time of seizure. As such, the quantity of the seized material becomes doubtful. 07. This Court appreciates the fairness of Mr. Debnath, learned Addl. PP. Having scrutinized the records meticulously, this Court finds sufficient force in the submission of Mr. Bhowmik, learned senior counsel that what was mandatory requirement in terms of Section 50, 52A(2) of the NDPS Act, 1985 was not complied with by PW-3. As such, the seizure cannot be sustained. When the prosecution is solely based on that seizure, the charge as well cannot be sustained. 08. In view of this, this appeal stands allowed. In consequence thereof the impugned judgment and order of conviction and sentence are set aside. As such, the seizure cannot be sustained. When the prosecution is solely based on that seizure, the charge as well cannot be sustained. 08. In view of this, this appeal stands allowed. In consequence thereof the impugned judgment and order of conviction and sentence are set aside. The appellant is acquitted from the charge on benefit of doubt. The sureties are discharged from their obligation. 7. In view of above, the appellant, being similarly circumstanced, is entitled to get the benefit of the said judgment and order dated 07.03.2014 passed by this court in Crl. A. No. 03/2011. Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the state has acceded to that proposition. 8. Accordingly, the impugned judgment and order of conviction and sentence is interfered with and set aside. The appellant is acquitted from the charge on benefit of doubt. Since the appellant is on bail, the sureties are discharged from their obligation. 9. In the result, the appeal is allowed. Send down the LCRs forthwith.