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2014 Supreme(Cal) 704
High Court of Judicature at Calcutta
NISHITA MHATRE & SAMAPTI CHATTERJEE, JJ.
Makhan Thakur
Versus
The State of West Bengal
C.R.A.No. 513 of 2009 (Appellate Side)
Decided on : 02-12-2014
For the Appellant:Kazi Safiullah, Madhuri Das, Advocates.
For the Respondent:B.R. Ghosal, Saswati Ghosh Singha, Himangshu Ghosh, Advocates.
The admissibility of a confessional statement recorded under Section 67 of the NDPS Act is subject to the provisions of Sections 24 and 25 of the Evidence Act, and a statement made to a Revenue Intelligence Officer designated as a police officer under Section 53 of the Act is inadmissible unless made under threat or coercion.
Headnote:
NDPS ACT - CONFESSIONAL STATEMENT - SECTION 67 - SECTION 53 - SECTION 25 OF THE EVIDENCE ACT - ADMISSIBILITY OF CONFESSION - INABILITY TO EXAMINE INDEPENDENT WITNESSES - EFFECT ON PROSECUTION CASE - QUANTIFICATION OF PUNISHMENT BASED ON THE CONTENT OF NARCOTIC SUBSTANCE - SECTION 21(C) AND 21(B) OF NDPS ACT - DISTINCTION.
Fact of the Case:
Appellant was convicted under Section 21(c) of the NDPS Act for possession of heroin. He challenged the conviction on grounds of non-compliance with Sections 42, 55, and 57 of the Act, inadmissibility of the confessional statement under Section 67, non-examination of independent witnesses, and excessive punishment.
Finding of the Court:
1. The provisions of Sections 42 and 43 of the Act were complied with as the information received by the officer was recorded in writing and communicated to his superior officer before conducting the raid. 2. The alleged breach of Sections 55 and 57 of the Act was not established as the seized substance was properly sealed, labeled, and kept in safe custody. 3. The confessional statement recorded under Section 67 of the Act was inadmissible as it was made to a Revenue Intelligence Officer designated as a police officer under Section 53 of the Act, thus violating Section 25 of the Evidence Act. 4. The failure to examine independent witnesses who were present during the seizure cast a shadow of suspicion on the prosecution case. 5. The punishment imposed under Section 21(c) of the Act was excessive as the heroin content in the seized substance was only 31% by weight, which fell under Section 21(b) of the Act.
Issues: 1. Whether the provisions of Sections 42, 55, and 57 of the NDPS Act were complied with during the search and seizure. 2. Whether the confessional statement recorded under Section 67 of the Act was admissible in light of Sections 24 and 25 of the Evidence Act. 3. Whether the failure to examine independent witnesses affected the prosecution case. 4. Whether the punishment imposed under Section 21(c) of the Act was appropriate considering the quantity and content of the seized heroin.
Ratio Decidendi: 1. Compliance with Sections 42 and 43 of the NDPS Act requires that information received about illegal possession of narcotics be recorded in writing and communicated to the superior officer before taking action. 2. A confessional statement made to a Revenue Intelligence Officer designated as a police officer under Section 53 of the Act is inadmissible under Section 25 of the Evidence Act unless made under threat or coercion. 3. The inability to examine independent witnesses present during the seizure casts doubt on the prosecution case and may lead to adverse inferences. 4. Punishment under the NDPS Act should be commensurate with the quantity and content of the seized narcotic substance, with 'small quantity' defined as 5 grams and 'commercial quantity' as 250 grams.
Final Decision: 1. The appeal was partly allowed. 2. The conviction under Section 21(c) of the NDPS Act was set aside, and the appellant was held guilty under Section 21(b) of the Act. 3. The sentence was reduced to the period of rigorous imprisonment already undergone by the appellant (eight years) and a fine of Rs. 20,000, with a default imprisonment of six months.
Nishita Mhatre, J.
1. Aggrieved by the decision dated 8th July, 2009 in Narcotic Drugs and Psychotropic Substances case No. 4 of 2006, the Special Court (E.C. Court)-cum-Additional Sessions Judge, Hooghly, convicting and sentencing him, the appellant has filed the present appeal. The appellant has been found guilty of the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’). He has been sentenced to suffer rigorous imprisonment for 10 years and directed to pay a fine of `1 lac; in default of payment of fine he is to suffer simple imprisonment for a further period of 10 months.
2. The appellant was intercepted by officers of the Narcotics Control Bureau, Eastern Zonal Unit, Kolkata (hereinafter referred to as “NCB, EZU”) at Dumurdaha Station bus stand in front of the Shani Mandir at about 3.15 p.m. on 6th September, 2006. He was holding a multi-coloured nylon bazaar bag in his right hand. The officers expressed their intention to search the bag as they had specific information that he was carrying heroin. According to the prosecution the officers informed the appellant that he had right to be searched in the presence of a Magistrate or any Gazetted Officer. However, he declined to accept that option. The officers of the Narcotics Control Bureau (hereinafter referred to as “NCB”) also offered to be searched by the appellant but he chose not do so. According to the prosecution the appellant took out a polythene packet from the bazaar bag that he was holding and voluntarily handed over the same to the officers. This polythene packet contained a brown coloured powder which the officers believed to be heroin. A small quantity of that powder was tested with the field test kit and it responded positively to the test for heroin. The packet weighed 500 grams. This entire procedure was conducted in the presence of two independent witnesses, the NCB officers and the appellant. The multi-coloured nylon bazaar bag, the packet containing 500 grams of a brown coloured substance believed to be heroin were all seized by the officers of the NCB. A sample in duplicate of 5 grams was drawn from the packet and was sealed, labelled and signed by the seizing officer and the independent witnesses. The rest of the quantity of the brown powder was sealed and also labelled. This procedure carried out for the seizure of multi-coloured nylon bazaar bag as well. According to the prosecution the appellant revealed that he had received the contraband from one Ashoke Baruri of Dumurdaha. A notice under Section 67 of the NDPS Act was served on the appellant directing him to appear before the NCB, EZU office at Kolkata on 6th September, 2006 at 8 p.m. for further interrogation and investigation. The prosecution claims that he voluntarily accompanied the NCB officers to their office and submitted his statement admitting his guilt. He was arrested under Section 43 of the NDPS Act on 6th September, 2006 at 11.30 p.m. and charged for having committed an offence punishable under Section 21(c) of that Act. Ashoke Kumar Baruri, Salim Sk. And Jiban Baruri who were named by the appellant were issued notices under Section 67 of the NDPS Act with a direction to appear before the investigating officer. However, they did not comply with the notice.
3. The complaint was filed by the intelligence officer, NCB, EZU, Kolkata on 2nd March, 2007 against the appellant as well as the aforesaid three persons. The prosecution relied on the 5 witnesses in support of its case. The appellant has been convicted and sentenced as aforesaid while the others have been acquitted.
4. PW 1 has filed the complaint in this case. He has categorically stated that except for filing the complaint as directed by his superior officers, he was not aware of the facts in the case.
5. PW 2 has stated that while posted as an intelligence officer in the NCB, EZU on 6th September, 2006, he received specific informatio
