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High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE & RAGHUNATH RAY
Kurban Ansari
Versus
The State of West Bengal & Others
C.R.A. No.446 of 2008
Decided On : 02-09-2010
NARCOTICS - SEIZURE - WEIGHMENT - INCONSISTENCY IN EVIDENCE - EFFECT - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20(B) - ARMS ACT, 1959 - SECTION 25(1-B) - INDIAN EVIDENCE ACT, 1872 - SECTION 74, 79.
Fact of the Case:
The appellant was arrested and charged under the N.D.P.S. Act and the Arms Act for possessing 3 kgs of Ganja and an improvised double-barrel country-made pipe gun with two 303 cartridges and three extra cartridges. The prosecution relied on the testimony of the arresting officer, an Executive Magistrate, and two seizure witnesses, all of whom testified to the seizure of the contraband. The appellant denied the charges and opted to be tried.
Finding of the Court:
The court held that the seizure of the contraband goods was proved beyond doubt, but the weighment was not properly proved. The court found that the prosecution witnesses consistently stated that the weight was 3 kgs, but the weighment scale and the weighment units were not produced during the trial. The court also noted that the grocery shop owner from whom the weighing scale was borrowed was not called as a witness.
Issues: 1. Whether the prosecution was bound to disclose the source of information on which the accused was apprehended. 2. Whether a test identification parade was necessary in the facts and circumstances of the case. 3. Whether the recovery of the contraband goods was vitiated by illegality or irregularity. 4. Whether the material inconsistency in the evidence of the prosecution witnesses vitiated the trial. 5. Whether the sealing of the confiscated goods was properly done. 6. Whether the expert evidence was properly adduced. 7. Whether the weighment of the confiscated goods was properly proved.
Ratio Decidendi: 1. The prosecution is not bound to disclose the source of information on which the accused was apprehended. 2. A test identification parade is not necessary where the accused was caught red-handed by the police team in the presence of the Magistrate and the seizure witnesses. 3. The recovery of the contraband goods was not vitiated by illegality or irregularity, even though the seizure witnesses had a criminal background, as long as the seizure was proved by the evidence of the Magistrate. 4. Material inconsistency in the evidence of the prosecution witnesses with regard to requisition of service of the Magistrate or putting of the seal on the packets would not vitiate the concrete evidence consistently corroborated by each one of the eye-witnesses. 5. The sealing of the confiscated goods was not properly done, as the Magistrate did not put his seal on the packets. 6. The expert evidence was properly adduced, as the chemical analyst and the arms expert reports were received by the Investigating Officer in the usual course of business and were certified by the appropriate authority under the Government. 7. The weighment of the confiscated goods was not properly proved, as the weighment scale and the weighment units were not produced during the trial and the grocery shop owner from whom the weighing scale was borrowed was not called as a witness.
Final Decision: The appeal was dismissed. The conviction of the appellant under the Arms Act was confirmed. The conviction of the appellant under Section 20(b) of the N.D.P.S. Act, 1985 was also confirmed. The punishment given by the learned Judge under Section 25(I)(B) of the Arms Act was confirmed. The punishment given under the N.D.P.S. Act, 1985 was modified to the extent that the appellant would be sentenced under Section 20(b)(ii)B instead of 20b(ii)(C) of the said Act of 1985.
ASHIM KUMAR BANERJEE.J:
1.FACTS :-
Bikash Chandra Kundu, Officer in-charge, Raghunathpur Police Station lodged a suo moto complaint against one Kurban Ansary, aged about 26 years alleging that Kurban was carrying 3 kgs. of Ganja and one improvised double barrel country made pipe gun loaded with two numbers of 303 cartridges and three extra cartridges apart from other articles noted in the FIR. The Officer in-charge, based on a source information, arrested Kurban while he was getting down from Burdwan-Purulia Passenger at Joychandi Pahar Railway station at about 11.50 hrs. On December 22, 2006 at about 12.20 hrs. the Police Force found one person coming towards metal road through Kachha road from village side with a jute hand bag in his hand who was identified as Kurban Ansary by the source. Moment he came near the Force, he was overpowered and the Force managed to apprehend him. Initially he was detained as he opted for being searched in presence of a gazetted officer or a Magistrate. Accordingly, the Circle Inspector and the S.D.P.O. were contacted. Ultimately, PW-2, an Executive Magistrate arrived at the spot. In his presence, the contraband goods were seized. The goods were initially weighed with the help of the weighing instrument taken from a road side shop. The Ganja was in a plastic packet wrapped with newspaper. Sample of 200 grams was drawn and sent for chemical examination. The seizure was conducted in presence of Chatu Mahato and Kartik Mahato being PW-3 and 5. Ansary was charged under Section 20(b) of N.D.P.S. Act and 25 (i) (a) /27 of the Arms Act. Kurban denied the charge and opted to be tried.
2. PROSECUTION WITNESS :-
PW-1 (Bikash Chandra Kundu) :-
The witness was the then officer in-charge of Raghunathpur Police Station. He lodged the suo moto complaint. He narrated in detail the incident which was consistent with his FIR. In cross-examination he pleaded his ignorance about the political affiliation of the accused and/or the seizure witnesses. With regard to weighment, the witness deposed that scale produced at the scene of occurrence for weighing was having units of 2 kgs. to 100 grams. Weighment was done at a time. He admitted that there was no seal on the cover. He however categorically stated that the learned Magistrate was all through out present at the time of seizure. The seizure was done in his presence.
PW-2 ( Achchutananda Majumdar) :-
The witness was the Deputy Magistrate working at Raghunathpur Subdivision. On December 22, 2006 he was also through out present during search and seizure. He deposed that three packets were shown to him by the Police. He did not open the same and he was told that it contained Ganja. He put his signature on the seizure list. On being asked by the S.D.O. he went to the spot and assisted the Police Force. He visited the place of occurrence on being accompanied by the vehicle belonged to S.D.P.O.
PW-3 (Chatu Mahato) :-
This witness was a resident of Chunabhati, Adra. He was going to Raghunathpur from Adra when he found two motor bikes standing on the kachcha road by the side of village Joychandi. He also noticed five persons who, all on a sudden, tried to flee away, one of them could be apprehended. His elder brother Kartick Mahato accompanied him and told him that the person apprehended was Kurban Ansari. He identified the appellant on the dock. His brother Kartick had acquaintance with the Officer in-charge of Raghunathpur Police Station. He found a gunny bag in the hand of Kurban. Gunny bag was opened in presence of Police Personnel as well as “Magistrate Saheb”. On opening the bag Ganja was found covered with a newspaper along with one two barrel-gun loaded with ammunitions as also live cartridges. He identified the material exhibits. The Ganja was weighed as three kgs. The Police prepared the seizure list and he became a witness thereof. In cross-examination he admitted having a criminal case pending against him at Raghunathpur Court.
PW-4 (Basudev Ghosh) :
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