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CALCUTTA HIGH COURT
Nishita Mhatre and Samapti Chatterjee, JJ.
Haniph Seikh —Appellant
versus
State of West Bengal —Respondent
C.R.A. No.236 of 2010
Decided on 26.11.2014
For the Appellant:Mr. Sekhar Basu, Sr. Advocate, Mr. Tapan Deb Nandy and Mr. Karan Sharma, Advocates
For the Respondent/State:Mr. B.R. Ghoshal, Sr. Advocate and Mr. Sanjoy Bardhan, Advocate
IMPORTANT POINT
Confessional statement given by accused before police is inadmissible in evidence.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 18(b) , 52-A and 67—Evidence Act, 1872—Sections 25 and 26—Seizure of opium—Appeal against conviction—Confessional statement—It is specific case of appellant that so-called voluntary statement made under Section 67 of N.D.P.S. Act cannot/should not be treated as voluntary/confessional statement as accused could not make such statement voluntarily or freely when he was in custody of police—Any confessional statement given by accused before police is inadmissible—It is wholly insufficient to convict accused on the basis of such so-called confessional statement—Section 52A of NDPS Act which is a mandatory provision was not complied with by NCB Officers at the time of conducting search and seizure—Prosecution has miserably failed to prove to hilt that appellant is guilty of offence for which he is charged—Appellants acquitted. (Paras 19 to 26)
Result: Appeal allowed.
JUDGMENT
Samapti Chatterjee, J.—The appellant preferred the instant appeal assailing the Judgment and Order of conviction passed in Case No.N-62 of 2006 by the learned Judge, Special Court under N.D.P.S. Act, Barasat, North 24 Parganas on 10th March, 2010 convicting the appellant for the offence punishable under Section 18 (b) of the N.D.P.S. Act. He is sentenced to suffer Rigorous Imprisonment for 10 (ten) years and also to pay a fine of Rs.1,00,000/- in default to suffer Rigorous Imprisonment for 6 (six) months.
2. The case made out by the prosecution may be summed up thus.
On 29.03.2006, acting on a specific information which was duly reduced into writing and intimated to one superior officer and on getting movement order, the batch of officers and staff of N.C.B. (E.Z.U) Kolkata reached at the crossing of Awalsiddhi more (Chowmatha) on National Highway 34 at about 15.50 hours and stationed there. At about 16.00 hours being shown by the informer, the officers spotted one person standing at the crossing having a multi coloured nylon shopping bag in his right hand and the officers then encircled that person and disclosed their identity before him, while that person disclosed his name as Haniph Seikh.
Thereafter, the officers expressed their intention to search that nylon shopping bag as the officers got specific information that a good quantity of opium was kept inside that bag. Then the officers called two independent persons from the on-lookers as independent witnesses to witness the search. Then the accused voluntarily handed over that bag to N.C.B. officers and confessed that there is opium inside that bag. Before conducting search of that bag, the N.C.B. officers offered themselves to be searched by the accused, but he declined to do so.
Thereafter the said bag was searched in presence of the accused person and the independent witnesses wherefrom one polythene packet containing blackish brown coloured sticky substance believed to be opium was recovered and on spot testing with the drug detection kit which responded positive to the test of opium and on weighment of the recovered substance it was a round 3 kgs gross.
Accordingly investigation started and after completion of the investigation charge under Section 18(b) of N.D.P.S. Act has been framed against accused Haniph Seikh to which he pleaded not guilty and hence, the trial started and after completion of trial the learned Judge found the accused person guilty and convicted as aforesaid.
3. In course of trial, the prosecution examined as many as 5 (five) witnesses in all and proved several documents and material exhibits, whereas the accused has examined only one D.W. in his support.
4. P.W.1, was the Intelligence Officer of N.C.B. E.Z.U. Kolkata. He lodged the written complaint against the appellant namely Haniph Seikh under Section 21 ( c ) and 29 of the N.D.P.S. Act. But he in his evidence stated that he did not know on the basis of which document he filed the complaint against the appellant.
5. P.W.2 was also the NCB Officer who in his evidence stated that on 29th March, 2006 upon receiving some information he and Manotosh Sarkar at about 3:30 P.M. reached at Awalsiddhi More. After ambushing there for sometime accused Haniph Seikh reached there. He and Manotosh Sarkar encircled him as they had the information that Haniph Seikh had opium with him. He further stated in his evidence that he informed Haniph Seikh that they were the officers of NCB and they had the information that he was carrying opium which was kept in a bag. He also deposed that two persons were called from that place for being witness in that case. In presence of two witnesses they searched the bag and it was found brown sticky substance. They tested the said substance and it was proved to be positive. The total quantity of substance was 3 kg. Out of the said quantum 25 grams each was taken and kept into polythene packet and were sealed and labeled. He further deposed that those two sample packets
