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High Court Of Calcutta
SHAMSUDDIN AHMED, A. K. CHATTERJEE
T.PAUL KUKI ALIAS PABUL YOUTHHAND ALIAS T.P.KUKI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRIMINAL APPEAL 157 Of 1991
Decided On : 12/22/1992
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 21 - UNAUTHORISED POSSESSION OF HEROIN - INTERPRETATION AND APPLICATION OF SECTIONS 43, 50(1), 52(1), 55, 57, 2(XVI), 2(XI), 8, 54 - KEY LEGAL ISSUE : WHETHER THE SEARCH, SEIZURE, AND ARREST PROCEDURES FOLLOWED UNDER THE ACT WERE PROPER AND WHETHER THE APPELLANT'S POSSESSION OF HEROIN WAS UNAUTHORIZED.
Fact of the Case:
THE APPELLANT WAS INTERCEPTED BY INTELLIGENCE OFFICERS OF THE NARCOTIC CONTROL BUREAU IN CALCUTTA AND FOUND IN POSSESSION OF 100 GMS OF HEROIN. HE WAS SUBSEQUENTLY CHARGED AND CONVICTED UNDER SECTION 21 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.
Finding of the Court:
THE COURT HELD THAT THE SEARCH, SEIZURE, AND ARREST PROCEDURES WERE PROPERLY CONDUCTED IN ACCORDANCE WITH THE ACT. THE COURT ALSO HELD THAT THE APPELLANT'S POSSESSION OF HEROIN WAS UNAUTHORIZED AND THAT HE WAS GUILTY OF AN OFFENSE UNDER SECTION 21 OF THE ACT.
Issues: 1. WHETHER THE SEARCH WAS CONDUCTED BY UNAUTHORIZED OFFICIALS. 2. WHETHER THERE WAS NON-COMPLIANCE WITH THE PROVISIONS OF SECTION 50(1) OF THE ACT. 3. WHETHER THE SEIZURE LIST WAS DULY PREPARED AND SIGNED BY THE APPELLANT. 4. WHETHER THE APPELLANT'S STATEMENT UNDER SECTION 67 OF THE ACT WAS ADMISSIBLE IN EVIDENCE. 5. WHETHER THE APPELLANT WAS PICKED UP WHILE HE WAS TAKING TEA IN A HOTEL. 6. WHETHER THERE WAS NON-COMPLIANCE WITH THE PROVISIONS OF SECTION 52(1) OF THE ACT. 7. WHETHER THE NARCOTIC SUBSTANCES WERE DEPOSITED WITH THE OFFICER-IN-CHARGE OF THE POLICE STATION FOR SAFE CUSTODY. 8. WHETHER THERE WAS NON-COMPLIANCE WITH THE PROVISIONS OF SECTION 57 OF THE ACT. 9. WHETHER THE SAMPLE SENT TO AND TESTED BY THE LABORATORY WAS DRAWN FROM WHAT WAS RECOVERED FROM THE APPELLANT'S POSSESSION. 10. WHETHER THE APPELLANT WAS IN UNAUTHORIZED POSSESSION OF HEROIN.
Ratio Decidendi: 1. THE COURT HELD THAT THE INTELLIGENCE OFFICERS OF THE NARCOTIC CONTROL BUREAU WERE VESTED WITH POWERS TO DETAIN, SEARCH, SEIZE, AND ARREST UNDER THE ACT AND THAT THE SEARCH WAS THEREFORE CONDUCTED BY AUTHORIZED OFFICIALS. 2. THE COURT HELD THAT THE REQUIREMENT UNDER SECTION 50(1) OF THE ACT TO TAKE THE PERSON TO BE SEARCHED TO A GAZETTED OFFICER OR MAGISTRATE IS MANDATORY BUT THAT IN THE PRESENT CASE, THE APPELLANT WAS OFFERED THE OPPORTUNITY TO BE SEARCHED IN THE PRESENCE OF SUCH OFFICIALS AND THAT THIS OFFER WAS A PART OF THE LEGAL FORMALITY OF SEIZURE. 3. THE COURT HELD THAT THE SEIZURE LIST WAS DULY PREPARED AND SIGNED BY THE APPELLANT AND THAT THIS WAS CORROBORATED BY THE TESTIMONY OF THE INTELLIGENCE OFFICERS. 4. THE COURT HELD THAT THE APPELLANT'S STATEMENT UNDER SECTION 67 OF THE ACT WAS NOT ADMISSIBLE IN EVIDENCE BECAUSE IT WAS NOT QUESTIONED DURING HIS EXAMINATION UNDER SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE. 5. THE COURT HELD THAT THE APPELLANT'S PLEA THAT HE WAS PICKED UP WHILE HE WAS TAKING TEA IN A HOTEL WAS AN AFTERTHOUGHT AND THAT IT WAS NOT SUPPORTED BY ANY EVIDENCE. 6. THE COURT HELD THAT THE PROVISIONS OF SECTION 52(1) OF THE ACT WERE COMPLIED WITH BECAUSE THE APPELLANT WAS SERVED WITH A COPY OF THE ARREST MEMO SOON AFTER HIS ARREST. 7. THE COURT HELD THAT SECTION 55 OF THE ACT IS AN ENABLING PROVISION AND THAT IT GIVES AN OPTION TO THE OFFICER MAKING A SEIZURE TO DEPOSIT THE SEIZED ARTICLES IN THE LOCAL POLICE STATION BUT THAT IT DOES NOT CONTAIN ANY MANDATE FOR SUCH DEPOSIT. 8. THE COURT HELD THAT THE PROVISIONS OF SECTION 57 OF THE ACT WERE COMPLIED WITH BECAUSE THE INTELLIGENCE OFFICER MADE A REPORT OF THE ARREST AND SEIZURE TO HIS IMMEDIATE OFFICIAL SUPERIOR WITHIN 48 HOURS. 9. THE COURT HELD THAT THERE WAS NO MISSING LINK TO RAISE ANY DOUBT THAT THE SAMPLE SENT TO AND TESTED BY THE LABORATORY WAS NOT DRAWN FROM WHAT WAS RECOVERED FROM THE APPELLANT'S POSSESSION. 10. THE COURT HELD THAT THE APPELLANT WAS IN UNAUTHORIZED POSSESSION OF HEROIN BECAUSE HE FAILED TO ACCOUNT FOR HIS POSSESSION AND BECAUSE HE DID NOT HAVE ANY AUTHORIZATION TO POSSESS THE CONTRABAND.
Final Decision: THE COURT DISMISSED THE APPEAL AND AFFIRMED THE CONVICTION AND SENTENCE PASSED BY THE TRIAL COURT.
( 1 ) THE appellant has been convicted by a learned Judge of City Sessions Court, Calcutta under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/- in default to suffer simple imprisonment for three months for having a unauthorised possession of 100 gms of heroin in the circumstances as under.
( 2 ) PURSUANT to a certain information, a team of Intelligence Officers of the Narcotic Control Bureau, Eastern Zonal Unit (Bureau for short) led by Sri Amitava Chatterjee, P. W. 2 mounted surveillance at the crossing of Park Street and Free School Street in Calcutta on the 26th August, 1989 at about 4 p. m. About an hour thereafter, the appellant, on being pointed out by the source accompanying the team, was intercepted. He had in his hand a packet wrapped in a newspaper which on being opened at the time of preliminary search after observing legal formalities was found to contain a polythene packet having some white powder in it, believed to be heroin. As a crowd gathered after interception of the appellant, he and the witnesses were brought to the office of the Bureau with their consent where by perforating the polythene packet, a small quantity of white powder was taken out and on test it was found to be heroin. Thereafter a sample was drawn from the packet, seizure was completed and a seizure list prepared on which the witnesses and the appellant signed and a copy thereof was duly delivered to him. A certain room of Chowringhee Hotel Where the appellant was said to be a boarder was also searched and some personal effects belonging to him were seized. Sri A. Dasgupta, P. W. 4, an Intelligence Officer of the Bureau recorded a statement of the appellant under section 67 of the Act on the same date while Shyamal Dry, P. W. 5, another Intelligence Officer of the Bureau arrested him on the following date at about 8 p. m. for which an arrest memo setting forth the grounds for arrest was prepared and a copy thereof was furnished to the appellant. Sri Ashoke Mukhopadhya, P. W. 1, another Intelligence Officer filed a complaint before the Chief Metropolitan Magistrate, Calcutta and ultimately on the 18th April, 1990 the learned Magistrate in terms of Section 36a (1) (b) read with Section 36a (c) and section 36 (d) (1) of the Act forwarded the case record to the Chief Judge of the City Sessions Court, Calcutta who in turn assigned the case to the trial Judge for disposal.
( 3 ) THE appellants defence appeared to be that he was not in possession of any narcotic substance at all and that he was apprehended while he was taking tea at a nearby hotel and he had no option but to append signature on certain papers etc. , for fear of assault by the Officers.
( 4 ) THE learned Judge on consideration of the evidence adduced before him has found the appellant guilty and convicted and sentenced him as already indicated.
( 5 ) THE appellant appears to have been intercepted by a team of officers composed of Sri Amitava Chatterjee P. W. 2, Sri Chanchal Bhattacharja P. W. 3, Sri Shyamal Dey P. W. 5, Sri Sudip Kr. Datta Gupta P. W. 6 and Sri Harendra Kr. Pandey P. W. 11. It was their evidence that when the Search of the person of the appellant was commenced at the crossing of Park Street and Free School Street, a crowd gathered and so for the safety of the contraband found as well as for a peaceful search operation, the appellant and also the witnesses who were called to see the search were taken to the office of the Bureau with their consent where the search was completed and the seizure list Ext. 2 was prepared by Sri Amitava Chatterjee P. W. 2 on which the appellant and the witnesses signed. A copy of this document was delivered to the appellant who again signed on the seizure fist as a token of receipt of a copy thereof. The witnesses Ram Pal and Mati Singh were not examined on
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