Samir Dutta and ors. Vs. State of West Bengal - Court Judgment

Excerpt:
- ashim kumar banerjee, j.1. on november 9, 2004 at about 11.00 a.m. shri parthasarathi mazumdar, a police officer attached to alipurduar p.s. received a telephonic information that four persons assembled at assam gate with canabis (ganja) in a v.i.p. suitcase and kid bag. he entered the information in the general diary and left for the place of occurrence along with shri t.k. das, sub-inspector and pasang tamang, assistant sub-inspector and other police constables. after arrival, they found that four persons were standing with v.i.p. suitcase and kit bag. on disclosure of their identity they asked the persons to opt as to whether they would offer their belongings to be searched by the police authority. the said persons demanded presence of gazetted officer and accordingly the police party requested sub-divisional magistrate, alipurduar to depute an executive magistrate for the said purpose. accordingly at about 11:50 a.m. shri kajal kumar roy, learned sub-divisional executive magistrate, alipurduar arrived at the place of occurrence and in his presence the police party searched the belongings of the persons and recovered 20 kgs of canabis from the suitcase and 10 kgs. from the kit bag. the materials were sealed and labelled in presence of the witnesses along with the suitcase and the kid bag. all the four persons were arrested and p.s. case no. 246 of 2004 was initiated as against the said accused under section 20(b) of the narcotic drugs and psychotropic substance act, 1985 (hereinafter referred to as the n.d.p.s. act). formal charge was framed under section 20 of the said act as against the accused who pleaded not guilty and claimed to be tried. a trial was held by the additional sessions judge, 2nd court, jalpaiguri as against the said four accused being the appellants above named. the learned sessions judge held them guilty of the offence and sentenced them for rigorous imprisonment for ten years along with a fine of rs. 1 lakh each and, in default, to suffer rigorous imprisonment for one year.2. being aggrieved by the judgment and order of the learned additional sessions judge dated december 14, 2005 the appellants preferred the instant appeal which was heard by us on the above mentioned date.3. mr. sukdeb chatterjee, learned counsel appearing in support of the appeal contended that there had been laches and negligence on the part of the investigating team as would be apparent from the evidence laid on behalf of the prosecution. according to mr. chatterjee such laches and/or negligence should have raised doubt in the mind of the court and the court should not have held the accused guilty of the offence in absence of appropriate evidence. mr. chatterjee further contended that the prosecution miserably failed to substantiate the charge beyond any reasonable doubt as there was gross discrepancy in the deposition of pw-1 and 4. it was also argued that the mandatory provisions of section 42(2), 55 and 57 of the said act were treated in breach. it was further argued that the recovery was made from the house of one ranjan dey and not from the possession of the accused and the accused was falsely implicated in the instant case. mr. chatterjee lastly contended that in a case of the like nature the court seldom granted bail. however, in the instant case bail was granted as the court was not, prima facie, satisfied with the prosecution case.4. in support of his contention mr. chatterjee relied on the following decisions:i) bhagwan dass etc. v. state of himachal pradesh reported in : 2003 criminal law journal page 536.ii) raja ram v. state of rajasthan reported in 2005 scc (criminal) 1050.iii) inspector of cusatoms, akhnoor j & k v. yash pal and anr. reported in 2009 ii ccrilr 253.iv) union of india v. bal kukund and ors. reported in 2009 ii ccrilr sc 237.5. opposing the appeal mr. ashok kumar mukherjee, learned counsel appearing for the prosecution contended that once the recovery was made in presence of gazetted officer as well as witnesses, the onus shifted on the accused to prove that they were innocent. no attempt was made on behalf of the accused to adduce evidence to the contrary. mr. mukherjee also contended that the alleged story of recovery of the contraband article from the house of one ranjan dey was not proved by the defence. mr. mukherjee also contended that the sample was drawn from the total recovered material which was sent for examination and the chemical analysis report supported the case of the prosecution. he prayed for dismissal of the appeal.6. we have considered the rival contentions. we have also considered the evidence on record. on perusal of the evidence we find that the mandatory provisions of the said act was duly complied. search was conducted in presence of an executive magistrate. in any event recovery was made from the suitcase and the bag and not from the person of the accused. hence, compliance of the formality under section 50 was superfluous. in this regard we may refer to the apex court decision in the case of dilip and anr. v. state of madhya pradesh reported in 2007 i scc (cri) 377. the prosecution was able to prove the recovery from the acccused. such evidence could not be shaken during cross-examination. the seized article was proved to be contraband from the report of the central drug control and research laboratory which was tendered in evidence. the seizure witnesses also deposed at the trial to prove the seizure. once the seizure was proved and the seized article was proved to be contraband the onus shifted on the accused to prove that they were not involved in such crime. no such attempt was made on behalf of the defence to raise doubt in the mind of the court with regard to the veracity of the prosecution case.7. in the case of bhagwan das etc. v. state of himachal pradesh (supra) the court found that there was no evidence that anybody had seen the accused handling the bag. neither there was any evidence to show that they admitted the bag belonging to them. in the instant case the accused did not disown the bag before the seizure, rather they demanded search in presence of an gazetted officer as required under section 50 of the said act. hence, the decision in the case of bhagwan dass (supra) does not help the appellant in any way.8. in the case of inspector of customs, akhnoor j & k v. yash pal and anr. (supra) the materials were confiscated by the customs officials when accused were not present. they were arrested on a secret information received by the intelligence that the materials belonged to the accused. the accused were acquitted in the said case on the ground that there was no proper examination of the accused under section 313 of the code of civil procedure as the evidence relating to seized materials were not brought to their notice. in the instant case the articles were seized in the presence of the accused. hence, this case has no application.9. the apex court decision in the case of raja ram v. state of rajasthan (supra) was cited by mr. chatterjee to support his contention that since the evidence of the prosecution witness did not support the prosecution such witness should have been declared hostile and evidence of such witness could be relied upon by the defence which would bind the prosecution. we fail to understand how this decision would help the appellants in any way.10. pw-1 was the police officer who seized the material and arrested the accused. he narrated in detail how the articles were seized. while doing so, the concerned officer deposed that they incorporated the case number after asserting the same from the police station in the seizure list and the label of the sample bags for future identification before it was handed over to the malkhana officer. he also deposed that no official seal of the inspector-in-charge of the concerned police station was found on the label. pw-2 being the concerned officer-in-charge deposed that he did not subscribe any identification mark on the seized bags. the deputy magistrate being pw-3 identified the seized packet and his signature on the label affixed on it. however, in cross-examination he admitted that some labels were missing. pw-4 being another police officer deposed that none of the accused persons was found holding the bags.11. on a sum total of the said evidence we do not find any serious anomaly. we also do not find any evidence which would support the case of the defence. in fact, we are at a loss to understand what the case of the defence was apart from the alleged story of recovery from the house of ranjan dey which was not proved by the defence. it was the consistent case of the prosecution that the bags were found in possession of the accused. it matters little as to whether anyone of the accused was actually holding the bags or those were found lying on the road adjacent to the accused. the accused did not disown the said bags. they rather demanded search in presence of an independent government gazetted officer. the bags were searched in presence of the gazetted officer who deposed to the said extent. the samples were drawn and sent for chemical examination and it was proved to be contraband articles under the said act.12. we may refer to a recent decision of the apex court in the case of mohd. hussain farah v. union of india and anr. reported in 2000 volume-i supreme court cases page 329. in the said case the accused was in a hotel. from his room where he was staying, two bags containing 3.8 kg of heroine was found. it also appeared from the evidence that he was the only person staying in that room. based on such evidence the apex court upheld the conviction. in the instant case four accused were standing whereas bags were found with them. the seizure witnesses also deposed to the said extent. it also did not come out in evidence that they were other persons standing close to the said bags. hence, it is conclusively proved that the bags belonged to accused wherefrom the contraband articles were found. they did not disown the bags when they were confronted by the police officials.13. the search and seizure was made in november 2004. the trial was conducted in march 2005. by that time some of the tags and/or labels might have disappeared because of mishandling. that would, in our view, not be fatal in holding otherwise.14. the appeal fails and is, hereby, dismissed.15. let a copy of this judgment along with lower court records be sent down at once.16. the appellants are directed to surrender themselves before the trial court for sufferance of the sentence. in default, the trial court is directed to take necessary steps according to law to secure the attendance of the appellants for sufferance of the sentence.17. urgent xerox certified copy will be given to the parties, if applied for.kalidas mukherjee, j.18. i agree.