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2017 DIGILAW 812 (CAL)

Khairul Basar Sk @ Basar v. State of West Bengal

2017-10-24

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 21.3.2016 passed by the learned Judge, Special Court, NDPS Act, Nadia convicting the appellant for commission of offence punishable under Sections 21 and 22 of the NDPS Act, 1985 and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of L 50,000/-, in default, to undergo rigorous imprisonment for six months more. 2. Prosecution case, as alleged, against the appellant is to the effect that on 4.12.2014 between 13.45 hours and 14.25 hours one Sankar Chatterjee, Inspector of Police, DDI Nadia, CID, West Bengal (P.W.1) along with other officers had left for Palassey to work out secret information relating to illegal transaction in heroin at Mira Bazar, Palassey. At about 13.30 hours they arrived at the said place. Upon source information the police officers intercepted a person standing in front of a SBI ATM counter with a Hero Glamour red coloured motor cycle bearing registration no. WB 52 S/0086 with a blue coloured bag in his hand. The intercepted person disclosed his identity as the appellant. He was searched in presence of local witnesses and BDO, Kaliganj Block observing all formalities. The raiding party recovered two different packets, a sealed packet of Amul Spray containing 330 gms. of contraband suspected to be heroin and another being a sealed packet of Priya Gold Masala, Haldi Powder containing 100 gms. of contraband also suspected to be heroin. Upon seizure of the said contrabands, two samples of 5 gms. each were recovered from the said packets and were sealed and labelled. Thereafter, the appellant was arrested. The raiding party took the appellant along with the seized articles to Kaligange PS wherein PW 1 lodged FIR being Kaligange PS case no. 715/14 dated 4.12.2014 under section 22 of the NDPS Act. In course of investigation the seized samples were sent for chemical examination and upon receipt of chemical examiner's report charge sheet was filed against the appellant. Charges were framed against the appellant for alleged possession of 430 gms. of heroin punishable under sections 21 and 22 of the NDPS Act. 3. In the course of trial, the prosecution examined as many as thirteen witnesses and exhibited number of documents. 4. The defence of the appellant was one of innocence and false implication. Charges were framed against the appellant for alleged possession of 430 gms. of heroin punishable under sections 21 and 22 of the NDPS Act. 3. In the course of trial, the prosecution examined as many as thirteen witnesses and exhibited number of documents. 4. The defence of the appellant was one of innocence and false implication. It was his specific defence that no narcotic substance had been effected from his possession and the independent witnesses have not supported such case of seizure. He also contended that there were wide and inexplicable discrepancies in the weight of the samples drawn from the seized contraband and the samples examined by the expert. The appellant, however, did not examine any witness of his own. 5. In conclusion of trial, the learned trial judge, by judgment and order dated March 21, 2016, convicted the appellant for commission of offence punishable under Sections 21/22 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him, as aforesaid. 6. Mr. Ayan Bhattacharjee, learned advocate appearing on behalf of the appellant argues that the evidence on record is at variance with the charge framed in the instant case. He submits that while the charge was one of illicit possession of "heroin", the chemical examination report being exhibit-8 showed that the samples examined by the expert showed that they contained `codeine' and `morphine'. No explanation was offered with regard to such variation in the nature of the manufactured drug allegedly seized from the possession of the appellant and that found in the samples examined by the expert. He further submits that the search and seizure in the instant case was not supported by the independent witnesses and that there was gross discrepancy in the weight of the samples drawn at the place of occurrence and those examined by the chemical examiner in the instant case. The aforesaid discrepancies go to the root of the prosecution case and render the prosecution case unworthy of credence. In support of his contention, Mr. Bhattacharjee relies on a decision of the Supreme Court in the case of Rajesh Jagdamba Avasthi v. State of Goa reported in (2005) 9 SCC 773 . 7. On the other hand, Mr. Saryati Dutta, learned advocate appearing on behalf of the State submits that the official witnesses clearly proved the seizure of contraband narcotic substances from the possession of the appellant. 7. On the other hand, Mr. Saryati Dutta, learned advocate appearing on behalf of the State submits that the official witnesses clearly proved the seizure of contraband narcotic substances from the possession of the appellant. There was no challenge thrown in the course of cross examination with regard to alleged variation in the weight of the samples drawn at the spot and those examined by the chemical examiner. Such variation in weight may be possible due to faulty weighing at the place of occurrence and for other handling reasons. It is further contended that variation in the nature of the contraband drug suspected at the spot and those noted by the chemical examiner in his report (Ext-8), that is "codeine" and "morphine" does not prejudice the appellant as all such drugs fall within the genus of manufactured drug which is punishable under Section 21 of the Narcotic and Psychotropic Substances Act. He accordingly prays for dismissal of the appeal. 8. The issue which, therefore, arises for consideration in this appeal is whether the prosecution has been able to prove its case beyond reasonable doubt. 9. The prosecution witness no. 1 is the defacto complainant and the leader of the raiding party he deposed that on December 4, 2014 he was posted as Deputy Director of Investigation, Criminal Investigation Department, West Bengal at Nadia district. On that date he received source information that there would be a transportation of heroin near Mira Bazar Netaji Statue More in front of State Bank of India Automated Teller Machine Counter. Having received such information, he along with Assistant Sub Inspector Prokash Kumar Guha and Assistant Sub Inspector Jayanta Ghosh - both of Nadia District Criminal Investigation Department, West Bengal and proceeded in a government vehicle towards Mira Bazar. After reaching the said spot, he requested the Sub Divisional Officer, Nadia Sadar, to depute one Executive Magistrate to be present at the time of search and seizure. Accordingly, the Sub Divisional Officer, Nadia Sadar, informed him that Block Development Officer, Kaliganj Block, prosecution witness no. 10, would assist him in the matter. He went to Mira Rural Out Post under Kaliganj Police Station and made requisition for police assistance. He proved the carbon copy (exhibit-1) of the original requisition slip written by himself. The document was received by the Duty Officer of Mira Rural Out Post. 10, would assist him in the matter. He went to Mira Rural Out Post under Kaliganj Police Station and made requisition for police assistance. He proved the carbon copy (exhibit-1) of the original requisition slip written by himself. The document was received by the Duty Officer of Mira Rural Out Post. Thereafter they proceeded to Netaji More in front of State Bank of India Automated Teller Machine Counter of Mira Plassey near Plassey Station. After reaching there, the raiding party found a person standing in front of State Bank of India Automated Teller Machine Counter with a motor cycle and a blue colour bag in his hand. The raiding party apprehended him as per information of the source. In the meantime, Block Development Officer, Kaliganj Block, came to the place of occurrence. Two local witnesses, namely, Tanmay Chatterjee and Bapi Sk. were also present there. The raiding party interrogated the apprehended person, who disclosed his identity as the appellant. He also disclosed that the packet in his hand contained heroin. The raiding party searched the appellant and found a sealed packet of Amul Spray containing 330 grams of heroin and another sealed packet of Priya Gold Haldi containing 100 grams of heroin. The contrabands were seized under a seizure list in the presence of Block Development Officer, Kalilganj Block, and samples of five grams each in duplicate of each packet were drawn and thereafter packed, sealed and labelled. He proved the seizure list being exhibit-2. The contraband and samples were weighed by the weighing machine carried by him. 10. Thereafter the prosecution witness no. 1 brought the appellant along with seized alamats and samples to Kaliganje Police Station and lodged first information report being exhibit-3. He identified the alamats being material exhibits I and II in court. He also identified the labels on the packets of the seized contraband, which bore his hand writing and signature. The labels also bore the signature of the seizure witnesses. The sample packets containing samples were exhibited as exhibits A/1 and B/1, which were sent for chemical examination and received back. The sealed sample packets were opened in court and identified. He deposed that the labels on the sample packets were prepared by him under his hand writing and signature. The labels also bore the signatures of the seizure witnesses and the accused person. The sealed sample packets were opened in court and identified. He deposed that the labels on the sample packets were prepared by him under his hand writing and signature. The labels also bore the signatures of the seizure witnesses and the accused person. He also proved the blue colour nylon bag being material exhibit VII and other articles seized from the possession of the appellant. He proved the option notice served upon the appellant. 11. In cross examination, the prosecution witness no. 1 stated that he did not record the source information in writing. He further stated that he prepared the labels affixed on the seized alamats and samples at the spot and subsequent thereto he never altered the said labels by making any addition or alteration thereof. 12. P.W.4, A.S.I. Prakash Kumar Guha & P.W.7, A.S.I. Jayanta Ghosh were the members of the raiding party. They have corroborated the evidence of P.W.1. 13. P.W.5, Uttam Kumar Das was the driver of the vehicle used by the members of the raiding party to go to the spot. He deposed that after one hour the officers and force returned with a person who was identified as the appellant. 14. P.W.6, A.S.I. Dharma Ghosh was also a member of the raiding party. He deposed with regard to seizure on the date at the place of occurrence. He was unable to identify the appellant. 15. P.W.8, Ajit Kumar Ghosh was the constable attached to Mira ROP on the date of occurrence. He was present at the time of seizure of the contraband article from the possessions of the appellant. He, however, failed to identify the appellant. 16. P.W.9, Himangshu Ghosh was another constable attached to Mira ROP. He was present at the time of raid and seizure. 17. Those are the members of the raiding party. 18. P.W.2, Bapi Sk & P.W.3, Tanmay Chatterjee are independent witnesses in the instant case. P.W.2 was declared hostile. He, however, deposed that the labels attached to the packet of the contraband article as well as the samples bear his signature. He was not aware why his signatures were obtained on those documents. P.W.3 has also identified his signatures on the labels of the contraband article as well as the samples. Both the witnesses, however, have not supported the factum of seizure of the contraband article from the possession of the appellant. 19. He was not aware why his signatures were obtained on those documents. P.W.3 has also identified his signatures on the labels of the contraband article as well as the samples. Both the witnesses, however, have not supported the factum of seizure of the contraband article from the possession of the appellant. 19. P.W.10, Tanushri Battobal, B.D.O. was present at the time of seizure of the contraband article form the possession of the appellant. He signed on the seizure list as well as the labels attached to the samples. He proved his signatures on the said documents thereon. 20. P.W.11, Prabin Kumar Roy is a constable attached to Mira ROP, who proved the general diary written by A.S.I. Surojit Ghosh in the instant case (Ext.6). 21. P.W.12, Debasis Ghosh A.S.I. of Kaliganj P.S. received a written complaint from P.W.1 and drew up the formal F.I.R. (Ext.7). 22. P.W.13, Sk. Jamal Hossain is the investigating officer in the instant case. He deposed that he took charge of the samples from Malkhana of Kaliganj P.S. and thereafter sent the samples to the State Drug Research Laboratory at Calcutta and collected report (Ext.8). In conclusion of investigation he submitted the charge sheet in the instant case. 23. The official witnesses particularly P.W.1, 4 and 7, who were members of the raiding party, in their depositions claimed that on the fateful day in the course of raid 430 grams of contraband suspected to be Heroin was recovered from the possession of the appellant. The aforesaid evidence on record, however, does not find support from the independent witnesses, namely, P.W.2 & P.W.3 who while admitting their signatures on the labels attached to the samples, have deposed that they had been made to sign the said documents by the police although they had not evidenced any seizure from the possession of the appellant. Moreover, some of the official witnesses namely, PW-6 and PW-8 even failed to identify the appellant during trial. It is not an axiomatic proposition of law that the version of official witnesses must always be disbelieved when they do not find support from the independent witnesses, as in the present case. Moreover, some of the official witnesses namely, PW-6 and PW-8 even failed to identify the appellant during trial. It is not an axiomatic proposition of law that the version of official witnesses must always be disbelieved when they do not find support from the independent witnesses, as in the present case. However, such lack of corroboration from independent witnesses creates a degree of suspicion with regard to the authenticity of the version of the official witnesses and in such case the court would necessarily examine their version with greater caution and circumspection in the light of attending facts and circumstances of the case to come to an unequivocal finding of guilt against the appellant. It is in this backdrop that the difference in the weight of the samples allegedly drawn from contraband articles at the spot and those examined by the chemical examiner in the instant case gains paramount importance. P.W.1 stated that the weight of the samples drawn from the contraband articles was 05 grams each. On the other hand, the chemical examiner's report (Ext.8) portrays the weight of the samples along with polythene cover as 22 grams each (with polythene cover) and 19 grams each(estimated weight) i.e. without polythene cover. Such wide variation between the weight of the samples collected from the contraband articles at the spot and those examined by the chemical examiner is irreconcilable and has not been explained away by the persecution during trial. 24. Learned counsel for the State strenuously argues that such discrepancy may be due to faulty weighing at the spot and ought to be ignored in the light of the fact that there is nothing on record to show that there was tampering with the seals and labels on the samples in the instant case. 25. I have given my anxious consideration to the aforesaid contention raised on behalf of the State. It would have been a different situation if version of the official witnesses who had signed on the packets were supported by the independent witnesses with regard to the factum of seizure of the contraband articles from the appellants. On the other hand, the independent witnesses have not supported the seizure and drawing of samples from such seized articles in their presence. They have merely stated that they were made to sign on blank papers by the police personnel. 26. On the other hand, the independent witnesses have not supported the seizure and drawing of samples from such seized articles in their presence. They have merely stated that they were made to sign on blank papers by the police personnel. 26. In this factual backdrop, the sanctity with regard to the seizure, labeling and chain of custody of the samples is put to serious doubt and the possibility of substitution of the samples while kept at the police malkhana is rendered highly improbable in the face of the yawing variation in the weight of the samples drawn at the spot and those examined by the chemical examiner. 27. Reliance is placed on behalf of the State in the case of Dehal Singh v. State of H.P. reported in (2010) 9 SCC 85 , wherein the conviction of the accused was upheld notwithstanding the variation in the weight of the samples drawn at the spot and those examined by the chemical examiner. The said report is factually distinguishable as in the said case the weighing machine was taken from a local businessman and it was held that such scales are ordinarily imperfect. On the other hand, the weighing machine in the instant case was brought by PW-1, himself and there is nothing on record to show that it was giving imperfect reading so as to explain away the aforesaid discrepancy. 28. Finally, the manner of conducting trial by the Judge in the instant case leaves much to be desired. Charges were framed in the instant case referring to the contraband as `heroin', although the Chemical Examiner's report showed that the samples contained `codeine' and `morphine' respectively. Moreover, charge as well as conviction was alternatively recorded under Section 22 of the NDPS Act which refers to `psychotropic substance', although there is no whisper in the length and breadth of the case that the appellant was in possession of any psychotropic substance. Even the sentence imposed, that is 7 years, is below the statutorily permissible minimum limit if the prosecution case which involves possession of manufactured drugs above commercial quantity in the event the prosecution case was held to have been proved. Such errors indicate a casual approach and clear non-application of mind by the trial Judge which is deprecated. 29. In the light of the aforesaid discussion, I set aside the conviction and sentence imposed on the appellant. Such errors indicate a casual approach and clear non-application of mind by the trial Judge which is deprecated. 29. In the light of the aforesaid discussion, I set aside the conviction and sentence imposed on the appellant. The appellant is acquitted of the charges leveled against him. 30. The appellant shall be released forthwith if he was not involved in any other case. 31. Accordingly, the appeal is allowed. Copy of the judgment along with the L.C.R. be sent back to the Court below at once. Certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.