Back
IN THE HIGH COURT OF CALCUTTA
Nishita Mhatre and Tapash Mookherjee, JJ.
Manik Barman - Appellant
Versus
State of West Bengal - Respondent
C.R.A. No. 486 of 2008 with C.R.A. No. 447 of 2008
Decided On : 31-03-2014
For the Appellant :Mr. Kamalesh Saha, Mr. S.M. Obaidullah and Ms. A. Gour, Advocates, Mr. Dilip Kr. Chatterjee and Ms. Supriya Roy Chowdhury, Advocates
For the State :Mr. Manjit Singh, Ld. Public Prosecutor and Mr. Arnab Chatterjee, Advocate
Compliance with mandatory provisions of search and seizure under the NDPS Act, including the presence of an executive magistrate and informing the immediate superior within 72 hours, is essential for the validity of a conviction.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT - POSSESSION OF GANJA - SECTION 20(B) - SEARCH AND SEIZURE - REQUIREMENT OF EXECUTIVE MAGISTRATE - SECTION 42(2) AND SECTION 50 OF THE ACT - INTERPRETATION AND COMPLIANCE - VALIDITY OF CONVICTION AND SENTENCE - AFFIRMATION OF TRIAL COURT'S DECISION.
Fact of the Case:
Three appellants were arrested for possessing 15.280 kg of ganja. They were convicted under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) by the trial court. The appellants challenged the conviction and sentence on grounds of improper search and seizure procedures and lack of evidence.
Finding of the Court:
1. The alleged seizure of ganja from the appellants was proved by cogent evidence, including the testimony of police witnesses, seizure list, and photographs. 2. The mandatory provisions of search and seizure prescribed in the NDPS Act were complied with, as an executive magistrate was present during the search and seizure and the Circle Inspector, the immediate superior of the officer who recorded the information, was informed within 72 hours. 3. Section 50 of the NDPS Act, which requires the presence of a gazetted officer or magistrate during the search of a person, was not applicable in this case as it was a case of search of a place. 4. The statement of the investigating officer that he submitted the charge sheet without any basis was either a slip of tongue or a typographical mistake, and did not mean that the charge sheet was baseless.
Issues: 1. Whether the alleged seizure of ganja from the appellants was proved by cogent evidence. 2. Whether the mandatory provisions of search and seizure prescribed in the NDPS Act were complied with. 3. Whether Section 50 of the NDPS Act was applicable in the case. 4. Whether the statement of the investigating officer that he submitted the charge sheet without any basis rendered the charge sheet baseless.
Ratio Decidendi: 1. The evidence of police witnesses, seizure list, and photographs constituted cogent evidence to prove the seizure of ganja from the appellants. 2. The presence of an executive magistrate during the search and seizure, and the informing of the Circle Inspector, the immediate superior of the officer who recorded the information, within 72 hours, satisfied the mandatory provisions of search and seizure under the NDPS Act. 3. Section 50 of the NDPS Act, which requires the presence of a gazetted officer or magistrate during the search of a person, was not applicable in this case as it was a case of search of a place. 4. The statement of the investigating officer that he submitted the charge sheet without any basis was either a slip of tongue or a typographical mistake, and did not mean that the charge sheet was baseless.
Final Decision: The appeals were dismissed, and the judgment of conviction and order of sentence passed by the trial court were affirmed.
Tapash Mookherjee, J.
The present appeals are directed against the judgment and order of conviction and sentence dated 26.05.2008 and 27.05.2008 passed by the learned Additional Sessions Judge-cum-Judge Special Court under Narcotic Drugs and Psychotropic Substances Act, hereinafter described in short as N.D.P.S. Act. Cooch Behar in G.R. Case No. 148 of 2007, convicting thereby the Appellants under Section 20(b) of the N.D.P.S. Act.
2. The facts behind, stated briefly, are as follows:-
3. On 10.04.2007, S.I. Sanjay Dutta, Officer-in-Charge of Tufanganj P.S. District Cooch Behar received a secret information from his source that the present Appellants of Arampur under Balarampur-I under P.S. Tufanganj, Dist.- Cooch Behar, were likely to carry huge quantum of `Ganja' to the house of one Dilip Das at Sansan Road, village Kamat Fulbari (Dakshin) for the purpose of trading. S.I., Dutta immediately recorded the fact in the General Diary of the Police Station and thereafter he along with other police personnel rushed to the aforesaid place and kept the place under strict vigil and during such watch found the Appellants entering the house of one Dilip Das. S.I., Dutta, therefore, followed the Appellants and entered the house of the said Dilip Das with others accompanying him and having entered the house they noticed the Appellants packing `Ganja' in a big plastic sheet and during the raid they found the owner of the house, Dilip Das, having managed to escape from the place and on interrogation of the Appellants they came to know that the Appellants had procured the goods from Balarampur and planned to sell the goods after packaging, through Dilip Das. The Appellants failed to account for their possession of the contraband goods. S.I., Dutta sent a requisition for the presence of an Executive Magistrate for the purpose of seizure of the contraband goods. In response to such requisition the local B.D.O. reached the spot promptly. A photographer was also called for and in presence of the local B.D.O. the raiding team as well the two neutral persons of the locality, contraband goods were seized through a seizure list prepared on the spot. Sample had been separated and preserved and labels were pasted on the packets of the samples as well as the seized contraband goods. After completion of all the aforesaid acts of search and seizure S.I., Dutta returned to the Police Station with the seized contraband goods and samples etc. and the Appellants in custody, as well, and lodged a suo motu complaint against the Appellants in the Police Station, on the basis of which Tufanganj P.S. Case No. 29 of 2007, dated 10.04.2007 under provisions in N.D.P.S. Act had been started against the Appellants. Thereafter, the case was handed over to S.I., Asit Deb Singh of Tufanganj P.S. for investigation. The investigation continued and after completion of investigation charge-sheet had been submitted against the Appellants under Section 20(b) of the N.D.P.S. Act.
4. Considering the materials collected during the investigation charges under Section 20 (b) and under Section 27A. of the N.D.P.S. Act read with Section 34 of the Indian Penal Code had been framed against all the Appellants.
5. All the Appellants denied the charges and claimed trial.
6. Plea of innocence was the only defence case of the Appellants.
7. During the trial, prosecution examined as many as ten witnesses. Prosecution also proved some documents and produced and identified the seized contraband goods and some other articles also. The Appellants did not tender any evidence whatsoever, in their support.
8. Learned Advocate for the Appellants has argued that the alleged seizure of `Ganja' from the Appellants has not been proved by any cogent evidence by the prosecution and that the mandatory provisions of search and seizure prescribed in the N.D.P.S. Act has not been complied with also and hence learned Trial Court committed gross error in law by convicting the Appellants to the charge under Sec
