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2019 DIGILAW 947 (CAL)

Ashit Biswas v. State of West Bengal

2019-11-26

JOYMALYA BAGCHI, MANOJIT MANDAL

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JUDGMENT : MANOJIT MANDAL, J. 1. These two criminal appeals are directed against the judgment and order of conviction and sentence dated 21.05.2012 and 22.05.2012 respectively passed by learned Judge, Special Court, N.D.P.S. Act, Nadia at Krishnagar in N.D.P.S. Case No. 24 of 2011 convicting the appellants under Section 20(b)(ii)(c)/29 of the N.D.P.S. Act and sentencing them to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 1,00,000/- (Rupees One Lakh only) in default to suffer rigorous imprisonment for 2 years. 2. On the basis of the written complaint (Ext.3) lodged by PW-1, Kanchan Roy Mukherjee, S.I. of Police, Kotwali Police Station, District-Nadia, the instant case was registered. It is alleged in the FIR that on 24.03.2011 at 17:55 hours PW-1 received secret information that clandestine and illegal business of narcotic drugs (Ganja) cannabis is taking place in Anandamayeetala area under Police Station Kotwali, Nadia. The information was diarised and Superior Officer was intimated and on receiving necessary order, S.I. of police Atanu Banerjee (PW-2), police driver Swapan Malo (PW-3), homeguard Gopal Das (PW-4) led by PW-1 proceeded to conduct a raid. On arrival at the spot at about 18:25 hours they found appellants were standing by the side of the road and gossiping in low voices. On seeing the police, appellant Samar Mondal managed to flee away but the police party apprehended appellant Ashit Biswas with something in his hand. PW-1 arrested the appellant Ashit Biswas with a polythene packet containing Ganja and on observing all formalities of search and seizure, Ganja was seized and weighed and found to be 23 kilograms. Sample was taken from the consignment, packed, sealed and labeled. On completion of all formalities of search and seizure, PW-1 filed written complaint resulting in Kotwali P.S. and Kotwali P.S. Case No. 214/2011 was started. 3. PW-7 Sri Tapan Kumar Chatterjee, being S.I. of Police, took over the case as Investigating Officer (hereinafter referred to as I.O.). The samples were sent for chemical examination and he collected the chemical examination report. In conclusion of investigation, PW-7 submitted the charge-sheet whereupon cognizance was taken. The case came on the file of the learned Trial Judge for disposal. 4. To bring home the charge, the prosecution examined 7 prosecution witnesses. PW-1, Kanchan Roy Mukherjee and PW-2, Atanu Banerjee are S.I. of Police attached to Kotwali Police Station. In conclusion of investigation, PW-7 submitted the charge-sheet whereupon cognizance was taken. The case came on the file of the learned Trial Judge for disposal. 4. To bring home the charge, the prosecution examined 7 prosecution witnesses. PW-1, Kanchan Roy Mukherjee and PW-2, Atanu Banerjee are S.I. of Police attached to Kotwali Police Station. PW-3, Swapan Malo is the police driver of Kotwali Police Station. PW-4 is a Home guard Gopal Das. PW-5 is the independent witness. PW-6 is Inspector of Police Arun Kumar Das. PW-7 is the Investigating Officer. On analyzing the evidence both oral and documentary, produced at the trial by the prosecution, the Trial Court held that the charges had been duly proved. 5. At the outset, Mr. Prabir Majumder, learned Advocate submitted that appellant Samar Mondal had died at Santipur, Nadia on 12.07.2014. Xerox copy of cremation/ burial certificate is placed on the record. Since the appellant Samar Mondal had died, appeal being CRA No. 448 of 2012 stands abated and is disposed of accordingly. 6. Mr. Majumder, learned Advocate appearing on behalf of appellant Ashit Biswas submitted that the chain of custody of narcotic drugs has been not established. He further submitted that public witness (PW-5) of the alleged search and seizure has not corroborated the prosecution case. As all the witnesses excepting PW-5 were of the same department the Court should not come to a firm conclusion on their uncorroborated version that the case has been proved. He further submitted that in the seizure list (Ext.2) P.S. Case number has been mentioned clearly improbability the prosecution case. He also submitted that there are contradictions in the evidence of the prosecution witnesses, as such their evidence cannot be accepted. He further submitted as no weighing machine was produced in Court, therefore, prosecution case should fail and appellant Ashit Biswas should be acquitted. 7. On the other hand, Mr. Bardhan, learned Advocate appearing for the State of West Bengal, submitted that evidence on record establishes the fact that Ganja was seized and after samples were drawn, they were sealed, seized and labeled at the spot. Seizure was effected in a public place in the presence of PW-6, retired Inspector of Police. He further submitted that appellant Ashit Biswas failed to rebut the statutory presumptions as to the culpable mental state and, therefore, conviction and sentence does not call for any interference. 8. Seizure was effected in a public place in the presence of PW-6, retired Inspector of Police. He further submitted that appellant Ashit Biswas failed to rebut the statutory presumptions as to the culpable mental state and, therefore, conviction and sentence does not call for any interference. 8. While, PW-1 in his written complaint (Ext.3) stated that the seized labelled exhibits. A, A1, A2 i.e. three in all and original seizure list, arrest memo were produced to S.I. Paritosh Haldar, duty Officer at Kotwali P.S. PW-6 found 4 sealed blue coloured packets containing Ganja in the Court. Prosecution has failed to explain how three packets seized & labeled at the spot (as described in FIR) could alter itself into four blue coloured packets in Court as per PW-7. Moreover, PW-1 in his written complaint (Ext.3) claimed he handed over the seized articles to S.I of Police Paritosh Haldar, (not examined during trial), PW-7 deposed PW-1 handed over the articles to him. Hence, there are gross discrepancies between the description of the articles seized at the spot and those produced in Court. Even the evidence with regard to custody of seized articles is contradictory. Thus, the discrepancies in the statement of witnesses with regard to chain of custody of the seized articles clearly snap the link before the articles seized at the spot and those produced in Court during trial, rendering the prosecution case wholly unreliable. 9. Furthermore, PW-5, Robin Bishnu who was the independent witness, has not supported the prosecution in Court. He claimed that the seizure list was prepared at the police station. Therefore, it may be concluded that the alleged recovery of the contraband from the appellant Ashit Biswas has not been proved beyond all reasonable doubt by the prosecution. 10. I also find that the prosecution failed to produce the weighing machine at the time of trial though it is alleged that after weighment at the spot it was found 23 kilograms of Ganja was recovered from the possession of the appellant. No explanation for non-production of the said weighing machine is forthcoming speaks volumes against the prosecution case. 11. Written complaint (Ext.3) was admittedly registered at the Police Station on 24.03.2011 at 22:15 hours. No explanation for non-production of the said weighing machine is forthcoming speaks volumes against the prosecution case. 11. Written complaint (Ext.3) was admittedly registered at the Police Station on 24.03.2011 at 22:15 hours. The evidence of PW-1 shows that the appellant Ashit Biswas was apprehended at 18:25 hours and formalities of search and seizure of the contraband were completed at 20:15 hours and after completion of the said formalities, PW-1 took the appellant and seized articles to the police station where of the FIR was registered. Surprisingly, seizure list (Ext.2) alleged to have been prepared on the spot, bear the number of the police case registered at the police station. The number of the police case endorsed on the seizure list indicates that this document was manufactured subsequently at the police station and not at the spot. The prosecution has failed to offer any explanation how and under what circumstances the number of the FIR appeared on the aforesaid document. This circumstance gives rise two inferences - either FIR was recorded prior to the alleged recovery of contraband or seizure list was manufactured after registration of FIR. In both cases, it seriously reflects upon the veracity of the prosecution version and the benefit arising out of such are inexplicable anomaly situation must necessarily go to the appellant. The aforesaid circumstance has shaken the foundation of the prosecution case to an irreparable extent. Consequently, the appellant's conviction and sentence under Section 20(b)(ii)(c) and 29 of the N.D.P.S. Act cannot be sustained. 12. In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 20(b)(ii)(c) and 29 of the N.D.P.S. Act are set aside and the appellant Ashit Biswas is acquitted of the said offence. The appellant Ashit Biswas is in custody, he be set at liberty immediately, if not wanted in any other case. 13. Lower Court Record along with copy of the judgment be sent to the learned Trial Court below at once for information and taking necessary action. I agree – Joymalya Bagchi, J.