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High Court Of Calcutta
Ashim Kumar Banerjee, Raghunath Ray, JJ.
Gulnawaz Khan Alias Gulnawaz Alias Gullu
Vs.
State Of West Bengal
Appeal No : C.R.A. No. 605 of 2009
Decided on : July 09, 2010
CRIMINAL LAW - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Compliance - Search and Seizure - Procedure - Accused's Right to be Searched in Presence of Gazetted Officer or Magistrate - Interpretation - Applicability - Contraband Articles Found in Vehicle - No Recovery from Accused - Section 50 Inapplicable.
Fact of the Case:
Police officers, acting on a tip, intercepted a Tata Sumo vehicle and found two large cakes of Ganja (Cannabinoids) in a paper cartoon between the driver's seat and the adjacent seat. Ten individuals, including the driver, were present in the vehicle. The accused were given written options to be searched in the presence of a Gazetted Officer or a Magistrate, but they declined the second option. The Additional Officer-in-Charge of Maidan Police Station, a Gazetted Officer, was called to the scene and conducted the search in his presence. No objectionable items were found on the accused's persons. The seized Ganja and the vehicle were confiscated, and a sample was drawn for chemical analysis, confirming the presence of Ganja.
Finding of the Court:
The court held that the provisions of Section 50 of the NDPS Act were duly complied with in this case. The accused were informed in writing of their right to be searched in the presence of a Magistrate or a Gazetted Officer, and they exercised their option to be searched in the presence of a Gazetted Officer. The Additional Officer-in-Charge, who was called to the scene, was not a member of the raiding party, and the accused did not raise any objection to his presence. The court also found that the questions put to the accused under Section 313 of the Criminal Procedure Code, though somewhat jumbled, were understood by the accused, who answered them accordingly.
Issues: 1. Whether the provisions of Section 50 of the NDPS Act were complied with during the search and seizure? 2. Whether the questions put to the accused under Section 313 of the Criminal Procedure Code were prejudicial to their defense?
Ratio Decidendi: 1. The provisions of Section 50 of the NDPS Act require that an accused person be informed of their right to be searched in the presence of a Magistrate or a Gazetted Officer before a search is conducted. In this case, the accused were duly informed of their rights, and they exercised their option to be searched in the presence of a Gazetted Officer. The Additional Officer-in-Charge, who was called to the scene, was not a member of the raiding party, and the accused did not raise any objection to his presence. Therefore, the court held that the provisions of Section 50 were duly complied with. 2. The questions put to the accused under Section 313 of the Criminal Procedure Code were somewhat jumbled, but the accused understood the questions and answered them accordingly. None of the accused expressed their inability to answer due to difficulty in understanding the questions. Therefore, the court held that the questions were not prejudicial to the accused's defense.
Final Decision: The court dismissed the appeals filed by the accused, upholding the conviction and sentence imposed by the trial court.
Ashim Kumar Banerjee, J.
1. ON July 26, 2004 at 10.00 a.m. Sub-inspector Shri Somen Bhattacharjee of Narcotic Cell, Detective Department, Calcutta Police received a source information that a white Tata Sumo bearing registration No. GJ-9M-3244 would be crossing Red Road from South to North, transporting Ganja (Cannabinoids)). Shri Bhattacharjee immediately informed his superior and started acting on the said information. Mr. Bhattacharjee led by the Officer-in-Charge, Narcotic Cell, Detective Department named Shri Sukumar Chakrabarty along with other members of the Force and investigation kit left for the spot at 10.20 a.m. They reached Red Road at 10.35 a.m. and Force were deployed at conspicuous places. Police vehicle was placed in such a manner so that the Tata Sumo could be intercepted. They waited in front of the main gate of Mahamadan Sporting Club. At about 11.30 a.m. a white Tata Sumo bearing the registration number referred to above was seen coming from South to North. Immediately it was intercepted in front of Mahamadan Sporting Club. Ten persons including the driver were inside the vehicle. ON a search being conducted, a paper cartoon was found in between the driver's seat and the seat next to the driver containing two large cakes of Ganja, weighing 27 kilograms. The officers apprehended all ten persons. They were given written option to be searched in presence of Gazetted Officer or a Magistrate. They declined the second option. The Additional Officer in-charge, Maidan Police Station who was a Gazetted Officer was called. Accordingly, Ashok Sarkar, the Additional Officer-in-Charge, Maidan Police Station arrived at the spot. In his presence the persons were searched. However, nothing objectionable could be found in their possession. Two large cakes of Ganja found in the paper cartoon were confiscated. Sample was drawn weighing 100 grams.
2. SHRI Somen Bhattacharyya made a written complaint to the Officer-in- Charge of the Maidan Police Station appearing at pages 2-8 of the paper book, narrating in detail about confiscation of Ganja so recovered from the Tata Sumo vehicle leading to arrest of ten persons including the driver and seizure of the vehicle in question. The accused were produced before the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). The learned Judge framed the charge as against each one of them as would appear from page 10-11. Each of the accused pleaded not guilty and opted to be tried. Pw-1 (Partha Roy):- Shri Roy was a constable attached the Detective Department, Kolkata Police. He prepared rough sketch map of the place of occurrence. He identified the rough sketch map tendered in evidence. Pw-2 (Kamal Laskar):- Kamal Laskar, a constable attached to the Detective Department took the photograph of the place of occurrence. Pw-3 (Dr. Utpal Saha):- Dr. Saha was the senior scientific officer attached to the State Drug Control and Research Laboratory. He tested the sample weighing 102 grams and confirmed that the sample was found to contain Ganja (Cannabinoids). According to him, the examination was conducted chemically and not mechanically. Pw-4 (Somen Bhattacharjee) :- Shri Bhattacharjee was an officer belonging to Narcotic Cell. He received the source information referred to above and acted upon the same. He narrated in detail about the investigation leading to search and seizure referred to above. His statement was consistent with the complaint lodged with the Maidan Police Station as referred to above. He deposed that he initially wanted to take the assistance of the gardeners belonging to Mahamadan Sporting Club who refused to accede to such request. He narrated in detail how the options were even to the accused. Pw-5 (Sk. Ziaul Kader):- Shri Kader was the Sub-Inspector attached to Maidan Police Station. He registered the formal FIR lodged by Shri Somen Bhattacharyya. Pw-6 (Ashok Kumar Sarkar) :- Shri Sarkar was attach
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