Shri Ashok Biswas v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SUBHENDU SAMANTA CRA (SB)/5/ 2022 Shri Ashok Biswas ... Appellant

Versus

The State ... Respondent For the Appellant : Mr. D. Ilango For the Respondent : Ms. A.S. Zinu Heard on : October 16, 2023 Judgment on : October 19, 2023 Subhendu Samanta, J.

1.

The instant Criminal Appeal is directed against the judgment and sentence dated 23.09.2022 passed by the learned Additional District & Sessions Judge cum Special Judge (NDPS Act), Mayabunder, North & Middle Andaman in Sessions Case No. 03/2020 (Sessions Trial No. 02 of 2021) convicting the present appellant to undergo Rigorous Imprisonment for a period of 7 (seven) years and also pay fine of Rs. 50,000/- (Rupees fifty thousand only), in default of payment of fine to undergo Rigorous Imprisonment for six months more for the offence punishable under Section 20(b)(ii)B of NDPS Act.

2.

The brief fact of the case is that, on 25.10.2019 at about 19:20 hours at Mayabunder Jetty under Mayabunder PS the accused Ashok Biswas was apprehended with illegal possession of huge cannabis of 15.5 kg (10.2 kgs & 5.3 kgs) in two numbers which was kept in a white plastic sac with mark TOTAN and the same has been recovered and seized in presence of independent witnesses by S.I Somen Kumar Halder (PW-1) in presence of SDPO, Diglipur. Police seized the same on the basis of the secret information and the accused has been arrested and produced before the Police Station. S.I Somen Kumar Halder submitted the report before the Mayabunder Police Station and the instant case U/S 20(b)(ii)B of NDPS Act has been started against the present appellant vide FIR No. 104/19 dated 25.10.2019..

3.

After completion of investigation, police has submitted charge sheet against the present appellant U/S 20(b)(ii)B of NDPS Act.

4.

During trial, prosecution has examined nine witnesses but none was examined by the defence.

5.

After hearing the learned Advocates and after collecting the evidences and perusing the materials on record, the learned Special Judge has passed the impugned judgment and order of conviction against the present appellant.

6.

Hence, this appeal.

7.

Learned Advocate for the Appellant submits that the impugned judgment and sentence passed by the learned Special Judge is illegal in the eye of law. The learned Special Judge has misconstrued and mis-appreciated the facts and circumstances of this case and came to an erroneous finding. 8.

He argued that the provisions of law enumerated U/S 42/50 as well as U/S 57 of NDPS Act has been grossly violated by the Investigating Agency. Search and seizure as effected by the Investigating Agency is completely barred under the provisions of law.

9.

The independent witnesses never proved the seizure in this case instead of which the learned Special Judge has recorded the conviction of the present appeal. 10.

He further argued that the investigation conducted by the I.O is also perfunctory. The charge against the present appellant cannot be substantiated on such faulty investigation. Learned Special Judge has not perused the materials on record and passed the erroneous judgment.

11.

He further argued that the expert has not been examined in this case. Thus, the report of the expert has not been properly proved before the learned Special Judge. There are several discrepancies in the prosecution case. Thus, it can be safely hold that the recording of conviction and sentence upon the present appellant is meritless. He prayed for acquittal.

12.

Learned Advocate appearing on behalf of the State submits that the seizure has been affected from the possession of the present appellant that is the commercial quantity of ganja. The PW-1 as well as the independent witnesses has sufficiently deposed before the learned Special Judge that the present appellant is in possession of the illegal ganja. She submits that the provision enumerated U/S 42 of NDPS Act is not applicable in this case as the place where the seizure is affected is a public place. She further argued that as the personal search was not conducted only bag was searched, so the provision U/S 50 of NDPS Act may not be applicable in this case. She argues that section 43 of NDPS Act is applicable to conduct search and seizure in this case.

13.

The relevant witnesses of prosecution has deposed that the huge amount of ganja was seized from the possession of the present appellant which was kept in a plastic bag. Police authority had no enmity against the accused to nab him. 14.

The provision U/S 35 of NDPS Act placed burden upon the accused person to explain his possession of such illicit ganja. The Investigating Agency has sufficiently conducted the investigation and submitted charge sheet against the present appellant. The report of the expert has been marked as Exhibit

by the learned Special Judge without objection, at this juncture, the validity and the proof of expert report cannot be challenged by the appellant in the stage of appeal. She further argued that considering the entire facts and circumstances, the opinion of learned Special Judge is based on reasonable finding which cannot be set aside.

15.

Heard the learned Advocates. Perused the materials on record.

16.

The entire case started on 25.10.2019 when the PW-1 ie. Sub Inspector of Police, Somen Kumar Halder got a secret information that one ship namely M.V Swaraj Dweep kept at Mayabunder jetty with illicit ganja. One person named Ashok Biswas brought the same through a sack with TOTAN mark. 17.

After receiving the said information at around 12:00 Noon, he informed the matter to the senior Officer SDPO, Diglipur namely Hookum Ram and as per the direction of SDPO, he prepared a notice U/S 42 of NDPS Act. The said notice was forwarded to the SDPO, Diglipur for necessary action. 18.

Two independent witnesses (PW-1 and PW-2) were called for and PW-4, one of the staff of PS CCS, Port Blair was also called with the weighing machine.

19.

Thereafter, the entire raiding team including the SDPO scattered outside of the Mayabunder Jetty and found one person was coming to Mayabunder jetty with white colour sac in his head. Seeing the police he tried to return back and police stopped him and disclosed about the information of transmission of ganja and asked him for personal search but he denied to do so and thereafter served notice U/S 50 of NDPS Act in presence of SDPO.

20.

After search of the white sac, a fishing net (jaal) was found and in it ganja like object was recovered in two plastic carry bags. One bag with mark "Ashok AB" containing 10.2 kg illicit ganja and another white plastic carry bag with mark "Ashok" containing 5.3 kg illicit ganja. The PW-1seized the illicit ganja with the carry bags and produced the witness at the P.S. 21.

Thereafter, investigation was taken by the PW-8 who during the course of investigation, has made inventory and got a certificate from the learned Magistrate regarding the inventory on 11.11.2019, forwarded the sealed sample packet of contraband to the FSL for chemical examination, received the report from the FSL Forensic Laboratory and submitted the charge sheet against the present appellant.

22.

Let me consider whether the provision of law was duly adhere to by the Investigating Agency in conducting the investigation of this case.

23.

The Narcotic Drugs and Psychotropic Substances Act, 1985 provides strict punishment to the offender. These are grave offence against the society. Strict punishment requires the strict compliance of rules to be proved for search and seizure. The principle is laid down by the several judgments of the Hon'ble Supreme Court that to entangle any person for a grave offence, there are primary requirements of strict proof. On the basis of said principle, the provision of search and seizure under NDPS Act was made. The Hon'ble Supreme Court has several judgment contended the requirement of strict proof of those provisions.

24.

Section 42 of the NDPS Act provides the power of entry, search, seizure and arrest without warrant or authorization. 25.

Learned Advocate for the appellant submits that the strict principle of Section 42 of NDPS Act was not followed by the Investigating Agency in this case. Learned Advocate for the State submits that the raid was conducted at Mayabunder Jetty which is a public place. Thus, for the purpose of search and seizure U/S 42 of NDPS Act is not applicable.

26.

Learned Advocate for the appellant submits a Notification of Andaman & Nicobar Administration, Secretariat dated 21.03.1997 wherein the Port of Mayabunder was declared as a prohibited place under the Indian Official Secret Act, 1923. 27.

I have heard the submissions of learned Advocates. 28.

It appears to me that, the applicability of Section 42 of NDPS Act ie., power of entry, search, seizure and arrest without warrant or authorization can be made by the Investigating Agency between Sun rise and Sun set in any building conveyance or enclosed place. The place of occurrence is of Mayabunder Jetty which is a prohibited place for the public as well as it is an enclosed place. Accordingly, it is not a public place.

29.

The seizure list reflected that the seizure was affected at 19:20 hours ie. between Sun set and Sun rise. The strict proof of Section 42 of NDPS Act requires that before conducting search and seizure, Officer/ the PW-1 must have record his ground of believe that a search warrant or authorization cannot be obtained without followed particular for the concealment of evidence or facilitate for escape of offender. Such recording of believe was not made in this case. Moreover, the secret

information which was received by the PW-1 not written down in the general diary or it was not forwarded to his superior. 30.

Section 42 (2) of NDPS Act directs the Seizing Officer to forward any information by reducing it to writing to his immediate Superior Officer within 72 hours. In this case, such formalities was not complied with by the Investigating Agency. 31.

The observation of Hon'ble Supreme Court passed in State of West Bengal and Ors. Vs. Babu Chakraborty regarding the strict compliance of Section 42 of NDPS Act at the time of affecting seizure in a NDPS case is very much applicable in this case.

32.

Hon'ble Supreme Court in the case of Babu Chakraborty (Supra) has affirmed the order of High Court of acquittal for non compliance of the mandatory provisions of Section 42 of NDPS Act.

33.

In this case, I am of the view that Section 42 of NDPS Act was not properly complied with the Investigating Agency as well as the PW-1 at the time of seizure of the contraband article. 34.

Learned Advocate for the appellant submits that strict provision of Section 50 of NDPS Act was also not followed.

35.

Learned Advocate for the State submits that in this case the bag was only searched and no personal search was conducted. Thus, the provision of Section 50 of NDPS Act is not required. Learned Advocate for the State submitted a decision of Hon'ble Supreme Court passed in Criminal Appeal No. 2239 - 2240 of 2011 to show of the law enumerated by the Hon'ble Supreme Court with the fact that when only bags was searched notice U/S 50 of NDPS Act is not required to be served. 36.

From the materials on record it appears to me that, one notice U/S 50 of NDPS Act was served. The notice itself disclose that the Seizing Team wants to conduct the personal search of the appellant as well as the belongings. The notice was proved by the PW-1 before this Court. The notice disclosed that a Gazette Officer is also present with them and if require the search may be conducted in presence of them.

37.

Section 50 of NDPS Act imposed strict condition upon the Seizing Officer to the effect that before searching any person alleged to have been carrying contraband articles, the person may be allowed to search the raiding party in the presence of nearest Gazette Officer or nearest Magistrate. In the present case, one SDPO was said to have been present at the time of seizure.

38.

Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand & Anr. (Reported in AIR 2014) Supreme Court 1384 has specifically held that Section 50 of NDPS Act has made a strict compliance regarding the personal search. The personal search can only be done either before a Gazette Officer or a Magistrate. The third option gave to the accused person ie., a search before the Superintendent who was part of raiding party would vitiate the provision of Section 50 (1) of the NDPS Act. In this particular case, the SDPO was one of the raiding party. So, according to law laid down by the Hon'ble Supreme Court in Paramanand (Supra), the provision of Section 50 of NDPS Act has not properly complied with in this case. 39.

I have also perused the other consequences and conduct of the Investigating Agency in this case. It appears to me that the seizure was affected on 25.10.2019. On the same day the seized contraband along with seal was handed over to the I.O. The I.O thereafter, produced the contraband before the Magistrate for necessary certificate on 11.11.2019. There is nothing in the prosecution case where such huge articles of illegal ganja was kept during the period of 25.10.2019 to 11.11.2019. No malkhana register was produced in this case or I.O (PW-8) also did not disclose the fact of keeping the said

contraband article during that long 15 days. Such conduct of the prosecution raised grave doubt in the prosecution case. 40.

Furthermore, the PW-1 stated that he seized the ganja in two packets containing 10 kg and 5 kg respectively. After such seizure when he wrote the compliant to the Mayabunder P.S stated the weight of the contraband to be 10.2 kg and 5.3 kg. Again when the same article was place before the Magistrate, the weight of the contraband articles appeared to be 5.21 kg and 10.00 kg. It cannot be understandable how the weight of seized ganja were appeared differently. The prosecution has no answer to that effect.

41.

Furthermore, it appears that the accused when examined U/S 313 Cr.PC. During examination some questions were asked which was not come through the mouth of the witnesses. 42.

The independent witnesses also uttered different place of seizure and signing of seizure list. The independent witnesses (PW-2 and PW-3) has also not stated about the presence of SDPO at the P.O. There are several other discrepancies in the prosecution case. The discrepancies appear to me grave in nature and prosecution has no reasonable explanations. Thus, in my view, defective search and seizure as observed above raise a doubt in favour of the appellant.

43.

Considering the entire aspect, considering the materials on record and considering law laid down by Hon'ble Supreme Court, I am of the view and observation of the learned Special Court regarding the particular facts and circumstances of this case is not justified. The order of conviction passed by the learned Special Judge in this case is not at all confirmity with the provision of law and it is liable to the set aside. 44.

Accordingly, the Criminal Appeal being CRA (SB) 05 of 2022 is considered and allowed.

45.

The order of conviction and sentence passed by the learned Special Judge against the appellant namely Ashok Biswas in Sessions Case No. 03/2020 is hereby set aside. 46.

The Appellant Ashok Biswas is hereby acquitted from the charges levelled against him U/S 20(b)(ii)B of NDPS Act. 47.

The appellant is on bail. The appellant be set at liberty at once.

48.

Sureties standing in his favour are also released. 49.

LCR be sent down at once.

50.

CRA (SB) 05 of 2022 is disposed of.

51.

Urgent Xerox certified copy of this judgement be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

(Subhendu Samanta, J.)