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IN THE HIGH COURT OF CALCUTTA
DEBASISH KAR GUPTA, MUMTAZ KHAN, JJ.
Kalimuddin Mia - Appellant
Vs.
State of West Bengal - Respondent
CRA No. 548 of 2007
Decided on : 22.09.2015
NDPS ACT - SECTION 20(B)(II)(C) - SEARCH AND SEIZURE - PRESUMPTION OF CULPABLE MENTAL STATE - EVIDENCE ACT - SECTION 35 - BURDEN OF PROOF - SECTION 41(1) - POWER OF SEARCH, SEIZURE, AND ARREST WITHOUT WARRANT - SECTION 42(1) - DUTY TO SEND INFORMATION TO SUPERIOR OFFICERS - SECTION 42(2) - DUTY TO PREPARE INVENTORY OF SEIZED ARTICLES - SECTION 50 - RIGHT TO BE TAKEN BEFORE A GAZETTED OFFICER OR MAGISTRATE FOR SEARCH - SECTION 52A - DISPOSAL OF SEIZED NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES - CR.P.C. - SECTION 313 - STATEMENT OF ACCUSED - INTERPRETATION AND APPLICATION.
Fact of the Case:
Appellants were convicted under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possessing and transporting 95 kg of ganja. The prosecution alleged that the appellants were caught red-handed with the contraband in a rickshaw van and that they had admitted to carrying the illicit substance.
Finding of the Court:
The court held that the prosecution had successfully discharged the burden of proving the appellants' knowledge and intention to possess and transport the contraband, as per the presumption under Section 35 of the NDPS Act. The court also found that the search and seizure were conducted in accordance with the provisions of Section 41(1) of the NDPS Act, and that the appellants were not entitled to the protection of Section 50 of the Act as the search was not conducted on their person but on the rickshaw van.
Issues: 1. Whether the prosecution had proved the appellants' knowledge and intention to possess and transport the contraband. 2. Whether the search and seizure were conducted in accordance with the provisions of the NDPS Act. 3. Whether the appellants were entitled to the protection of Section 50 of the NDPS Act.
Ratio Decidendi: 1. The court relied on the presumption under Section 35 of the NDPS Act, which places the burden of proving the absence of culpable mental state on the accused. The court found that the appellants had not adduced any evidence to rebut this presumption, and that the circumstances of the case, including their admission to carrying the contraband, supported the inference of knowledge and intention. 2. The court held that the search and seizure were conducted in accordance with the provisions of Section 41(1) of the NDPS Act, which empowers certain officers to conduct searches and seizures without a warrant if they have reason to believe that an offence under the Act has been committed. The court found that the officer who conducted the search had reasonable grounds to believe that the appellants were in possession of contraband, based on the information received from a reliable source. 3. The court held that the appellants were not entitled to the protection of Section 50 of the NDPS Act, which requires an officer to inform the person to be searched of their right to be taken before a Gazetted Officer or Magistrate for the search. The court found that Section 50 applies only to searches conducted on the person of an accused, and that the search in the present case was conducted on the rickshaw van, not on the appellants themselves.
Final Decision: The appeals were dismissed, and the impugned judgment, order of conviction, and sentence were upheld.
Debasish Kar Gupta, J.
The subject-matter of challenge in these appeals is a judgment and order of conviction dated August 6, 2007 and sentence dated August 7, 2007, passed by the learned Additional Sessions Judge-cum-Judge, Special Court under Narcotic Drugs and Psychotropic Substances Act in G.R. Case No.446 of 2006. By virtue of the impugned judgment the appellants were convicted for commission of offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). By virtue of the impugned sentence Kalimuddin Mia and Mahesh Barman, appellants in CRA No.548 of 2007 and CRA No. 544 of 2007 respectively were punished to suffer rigorous imprisonment for twelve years each and to pay a fine of Rs.1 lakh each, in default, to suffer simple imprisonment for two years more. The period of detention which had been undergone during trial was directed to be set off accordingly.
2. The backdrop of these appeals is discussed below in a nutshell:
An FIR bearing No. 99/06 dated November 18, 2006 of Tufanganj Police Station, Cooch Beher, year 2006, was lodged against the appellants for committing offence punishable under the provisions of Section 20 (b)(ii)(c) of the NDPS Act.
3. According to the above FIR, one Sanjoy Dutta, Officer-in-Charge, Tufanganj Police Station, Cooch Behar (PW 1) received an information from secret source on November 18, 2006 at 17-55 hrs. that some persons had been proceeding from Balarampur and after crossing Balarampur ghat they would come to NH31 for proceeding towards Baxirhat with contraband articles 'ganja' in a rickshaw van. The PW 1 diarised the above information bearing G.D.E. No. 831 dated November 18, 2006. The PW 1 along with PW 3, PW 4, PW 8 and constable Ranjan Narginary went to National Club More situated on NH 31 for apprehending the persons concerned.
4. On or about 19.05 hrs. the above raiding team noticed that a rickshaw van was coming with some jute sticks (Pat Kathy) from Chamta More. One person was driving the rickshaw van and the other one was pushing it. On interrogation they disclosed their names, Kalimuddin Mia and Mahesh Barman (the appellants of CRA No.548 of 2007 and CRA No.544 of 2007 respectively). They initially stated that they had been carrying jute sticks in the rickshaw van for delivery of the same to their relatives. But, after further query they admitted that 'ganja' had been concealed in the above jute sticks. The PW 1 made a requisition to the Sub-Divisional Officer concerned for sending a Deputy Magistrate to the place of occurrence. He also took steps to bring a photographer at the place of occurrence to take the photographs of those articles. Sri Tapan Chattopadhyay, Circle Inspector, was informed of the above raid. After arrival of Sajal Kumar Das, working for gain in the post of Deputy Magistrate-cum-Deputy Collector office, Tufanganj at the material point of time (PW 9), Subhasis Modak the photographer (PW 12), Tapan Chattopadhyay, the Circle Inspector and two local witnesses, namely, Uttam Choudhury (PW 2) and Goutam Basak (PW 5), five packets of 'ganja' wrapped with poly pack were recovered from the aforesaid rickshaw van. Weight of the above seized contraband article was taken in a Log Wood Shop nearby. The weight of the seized contraband article was 95 kg. and 450 gms. Five sample packets of 100 gms. of contraband article 'ganja' were collected from each of the aforesaid packets. The seized ' ganja' and the packets containing samples thereof were duly sealed and labels were pasted. The packets of the above seized articles were duly signed by PW 1, PW 9 aforesaid Tapan Chattopadhyay and as also the local witnesses, i.e. PW 2 and PW 5. The appellants and the articles seized as also the samples collected from the seized articles were brought to the Tufanganj police station. The appellants were arrested. FIR No. 99/06 dated November 18, 2006 was lodged against the appellants for committi
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