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2023 DIGILAW 735 (CAL)

Mahadeb Saha v. State of West Bengal

2023-05-10

TIRTHANKAR GHOSH

body2023
JUDGMENT : TIRTHANKAR GHOSH, J. 1. CRA (SB) 6 of 2023 and CRA (SB) 8 of 2023 are disposed of by a common and single judgment as the same arise out of the same sessions trial and sessions case number. 2. The appellants preferred appeal against the judgment and order of conviction dated 22.12.2022 and 23.12.2022 passed by the learned Additional Sessions Judge, 2nd Court Bangaon, North 24 Parganas wherein the learned trial court was pleased to convict the appellants in connection with Sessions Trial No. 02(03) 2019 arising out of Sessions Case No. 204 of 2018. The learned trial court after convicting the appellants under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 was pleased to impose sentence of rigorous imprisonment for five years and to pay fine of Rs.1,00,000/-each i.d. to suffer R.I. for six months. 3. The present case was initiated on the basis of a written complaint lodged by one Ravi Ranjan, Assistant Commandant, 26 Battalion, BSF of BOP, Boyra with the Officer-in-Charge, Bagdah P.S. on 27.04.2014. The allegations were to the effect that an information was received by the BSF that a bike would enter the area of 50 mtrs ahead of MCP Point with Phensedyle and the people riding in the bike will then transport the Phensedyle on foot through the fields by passing the MCP at 19 Miles. At about 4.30 hours a bike approached the ambush area and as soon as the bike entered the motor cycle driver and pillion rider were arrested with two bags containing 200 bottles of Phensedyle. On enquiry it revealed that 200 bottles of Phensedyle were to be transported from Bagdah to Kulanandpur village and the said bottles were supplied by Ranjan Saha. The chain of events which transpired were that Ranjan Saha gave it to Upen Das and Jaidev Sadhu. Another search was carried out for tracing the accused persons involved and on identification by the accused Mahadev Saha and Krishna Paul, the accused Upen Das was arrested. The complainant requested the police authorities to register FIR and take action under proper sections of law. 4. Accordingly, Bagdah Police Station Case No. 310 of 2014 dated 27.04.2014 was registered for investigation under Sections 379/411/413/414 of the Indian Penal Code and Sections 27/27(A) of the Drugs and Cosmetics At, 1940. The complainant requested the police authorities to register FIR and take action under proper sections of law. 4. Accordingly, Bagdah Police Station Case No. 310 of 2014 dated 27.04.2014 was registered for investigation under Sections 379/411/413/414 of the Indian Penal Code and Sections 27/27(A) of the Drugs and Cosmetics At, 1940. On completion of investigation charge-sheet was submitted before the jurisdictional court and the case was thereafter placed before the learned 2nd Additional Sessions Judge, Court, Barasat, North 24 Parganas. Consequently, the learned trial court after ensuring that the copies and documents have been supplied to the accused persons framed charges under Sections 27(b)(ii) of the Drugs and Cosmetics Act, 1940. The contents of the charges were read over to the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case relied upon six witnesses and number of documents. 5. On an inspection of the records, it reflects that PW1 Ravi Ranjan was the Assistant Commandant of BSF and the complainant of the present case; PW 2 is Subhash Chandra Sharma, an Inspector of BSF who was present in the team of officers who conducted raid and intercepted the accused persons; PW 3 Sachin Chougle is the constable who was posted at Boyra BOP and was also a part of the raiding team who arrested the appellants and also recovered 200 bottles of Phensedyle; PW 4 is Mukesh Kumar Jena, he was also a member of the raiding team of BSF who arrested two accused persons and also seized 200 bottles of Phensedyle; PW 5 is Sub-Inspector of Police Pronob Kumar Dey at the relevant time was posted at Bagdah Police Station and received the written complaint from PW 1 Assistant Commandant of BSF. It was under his endorsement Bagdah Police Station Case No. 310 dated 27.04.2014 was registered for investigation under Sections 379/411/413/414 of the Indian Penal Code and Sections 27/27A of the Drugs and Cosmetics Act, 1940 the said FIR named five accused persons. PW 6 Utpal Kumar Saha is the Sub-Inspector of Police. 6. The prosecution also relied upon number of documents which included written complaint, (Exhibit P/1); Entire seizure list dated 27.04.2014 (Exhibit P/2); Formal FIR (ExhibitP/3); Rough Sketch Map with index (ExhibitP/4); Seized articles containing five pages (Exhibit P/5 Collectively); Chemical examination report containing two sheets (Exhibit/6). PW 6 Utpal Kumar Saha is the Sub-Inspector of Police. 6. The prosecution also relied upon number of documents which included written complaint, (Exhibit P/1); Entire seizure list dated 27.04.2014 (Exhibit P/2); Formal FIR (ExhibitP/3); Rough Sketch Map with index (ExhibitP/4); Seized articles containing five pages (Exhibit P/5 Collectively); Chemical examination report containing two sheets (Exhibit/6). The material object which were produced before the court was sample file of Phensedyle kept in a sealed packet (MO-I); 199 bottles of seized Phensedyle kept in a poly bag (MO-II) 7. Learned advocate appearing for the appellants prayed for acquittal on the ground that the present appellants have been falsely implicated in the instant case and there are nothing on record for implicating the present appellants, namely, Mahadeb Saha and Upen Das. Additionally, it has been submitted that the appellants have no control over the manufacture of the products and they have only been implicated in the instant case for possession which was because of persons who have been left out by the police authorities. There is nothing on record according to the appellants to implicate the present appellants. 8. Mr. Bardhan, learned advocate appearing for the State, on the other hand, submits that the present is a case which calls for interference of this Court because purposely the provisions of NDPS Act has not been invoked. Learned advocate to that effect draws the attention of this Court to the chemical examination report which reflects that the sample contains chlorpheniramine Maleate & Codeine Phosphate which falls under the purview of NDPS Act. It has also been pointed out that in view of the recovery being from a bag and not from the person, there is no requirement of Section 50 of the NDPS, Act. It has been prayed that suitable steps be taken in these appeals so that the present appellants are also required to face the consequences of the NDPS Act as the very purpose of the NDPS Act and the Drugs and Cosmetic Act are completely different. 9. Learned advocate also relied upon the judgment of Kaushik Chatterjee vs. State of Haryana and Others, (2020) 10 SCC 92 and impressed upon this Court that lack of jurisdiction do not empower the court to try the offence complained of and do make the entire proceedings void. 9. Learned advocate also relied upon the judgment of Kaushik Chatterjee vs. State of Haryana and Others, (2020) 10 SCC 92 and impressed upon this Court that lack of jurisdiction do not empower the court to try the offence complained of and do make the entire proceedings void. Attention of this Court has been drawn to paragraphs 37 and 38.3 which are set out as follows: “37. From the above discussion, it is possible to take a view that the words “tries an offence” are more appropriate than the words “tries an offender” in Section 461(l). This is because, lack of jurisdiction to try an offence cannot be cured by Section 462 and hence Section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of Section 462, provided there is no other bar for the court to try the said offender (such as in Section 27). But Section 461(l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do. 38.3. That these questions may have to be raised before the court trying the offence and such court is bound to consider the same.” 10. I have also considered the principles set out by the Hon’ble Supreme Court in the decision of Union of India and Another vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 . Paragraphs 25, 26 and 35 of the aforesaid judgment are relevant for the purpose of present case and set out as below: “25. In other words, dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances. 26. Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances. 26. The Act does not contemplate framing of rules for prohibiting the various activities of dealing in narcotic drugs and psychotropic substances. Such prohibition is already contained in Section 8(c). It only contemplates of the framing of Rules for permitting and regulating any activity of dealing in narcotic drugs or psychotropic substances. 35. In view of our conclusion, the complete analysis of the implications of Section 80 of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs and Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase, etc. of drugs generally whereas the Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of the 1940 Act.” 11. In view of the conclusion arrived at by Honble Supreme Court that the provisions of NDPS Act is in addition to the provisions of Drugs and Cosmetic Act, 1940, I am of the opinion that the present case must be retried from the stage of consideration of charges as the facts which has surfaced prima facie make out the offence under the provisions of the NDPS Act. Learned trial court would start from the stage of framing of charges. It is clarified that both under the provisions of the NDPS Act and the Drugs and Cosmetic Act, charges should be framed in view of the observations of the Hon’ble Supreme Court. 12. In view of the provisions of NDPS Act being invoked, the trial of the case should be conducted by the learned special court-in-charge of the NDPS Act having regard to the territorial jurisdiction. 13. It has been informed that the learned Additional District and Sessions Judge, 6th Court, Barasat is in seisin of exercising the powers under the provisions of NDPS Act as Special Court. 13. It has been informed that the learned Additional District and Sessions Judge, 6th Court, Barasat is in seisin of exercising the powers under the provisions of NDPS Act as Special Court. Consequently, lower court records be sent to the learned Additional District and Sessions Judge, 6th Court, Barasatcum Special Court under the NDPS Act. 14. Both the appellants are in custody they should be produced before the learned special court on 19th May, 2023. As the date of the incident is of the year 2014 and during the stage of trial, the appellants were already on bail, the learned trial court would release the appellants on bail subject to such conditions as the learned special court deems fit and proper. 15. In view of the observations made above, the judgment and order of conviction and sentence so passed by the learned Additional Sessions Judge, 2nd Court, Barasat, North 24 Parganasd in Sessions Trial No. 02(03)/2019 having its genesis in Bagdah Police Station Case No. 310 dated 27.04.2014 is hereby set aside. As directed above, the learned trial court is directed to proceed with the trial of the case from the stage of consideration of charges. 16. Accordingly, CRA (SB) 6 of 2023 and CRA (SB) 8 of 2023 are disposed of. 17. Pending applications, if any, are consequently disposed of. 18. Department is directed to send back the lower court records immediately to the learned Additional District and Sessions Judge, 6th Court, NDPS, (Special Court in-charge under the NDPS Act) Barasat, North 24 Parganas. 19. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. 20. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.