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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Debasish Kar Gupta & Md. Mumtaz Khan, JJ.
Laltu Prasad – Appellant
Vs.
The State of West Bengal – Respondent
C.R.A. No. 330 of 1992
Decided On : 06-09-2016
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT - SEARCH AND SEIZURE - SECTION 42, 43, 50 - WEIGHT ANOMALY - DELAY IN SENDING FOR CHEMICAL ANALYSIS - COMPLAINANT AS INVESTIGATING OFFICER - [SUMMARY] The court set aside the conviction and sentence of the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substance Act due to non-compliance with the mandatory provisions of the Act relating to search and seizure, non-compliance of Section 50 of the Act, anomaly in the weight of the seized articles, unexplained inordinate delay in sending the contraband article for chemical examination, and the complainant himself acting as the investigating officer. The court held that the search was conducted at a public place in the presence of independent witnesses and the contraband article was recovered and seized from the possession of the accused/appellant. Hence, the provisions of Section 43 of the Act applied and not Section 42, and as such there was no requirement for the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42 of the Act. Regarding the applicability of the provisions of Section 50 of the Act, the court held that the appellant was not informed about his right to be searched before a Gazetted Officer or a Magistrate, which prejudiced him. The court also noted the anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR, and the report of the analyst, as well as the unexplained inordinate delay in sending the article for chemical examination. The court further observed that the complainant himself acting as the investigating officer violated the principles of fair and impartial investigation.
Fact of the Case:
The appellant was convicted under Section 21 of the Narcotic Drugs and Psychotropic Substance Act for possession of 3 gms of 'Heroin'. The prosecution case was that the appellant was arrested at a public place on the basis of source information, and the contraband was recovered and seized from his possession in the presence of independent witnesses.
Finding of the Court:
The court found that the mandatory provisions of the Narcotic Drugs and Psychotropic Substance Act relating to search and seizure were not complied with, and that the provisions of Section 50 of the Act were not followed. The court also noted the anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR, and the report of the analyst, as well as the unexplained inordinate delay in sending the article for chemical examination. The court further observed that the complainant himself acting as the investigating officer violated the principles of fair and impartial investigation.
Issues: 1. Whether the mandatory provisions of the Narcotic Drugs and Psychotropic Substance Act relating to search and seizure were complied with? 2. Whether the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substance Act were followed? 3. Whether there was an anomaly in the weight of the seized articles between the Malkhana register, seizure list, FIR, and the report of the analyst? 4. Whether there was an unexplained inordinate delay in sending the article for chemical examination? 5. Whether the complainant himself acting as the investigating officer violated the principles of fair and impartial investigation?
Ratio Decidendi: 1. The provisions of Section 43 of the Narcotic Drugs and Psychotropic Substance Act applied in this case, and not Section 42, since the search was conducted at a public place in the presence of independent witnesses and the contraband article was recovered and seized from the possession of the accused/appellant. 2. The appellant was not informed about his right to be searched before a Gazetted Officer or a Magistrate, which prejudiced him. 3. The anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR, and the report of the analyst, as well as the unexplained inordinate delay in sending the article for chemical examination, rendered the recovery of the illicit article suspect and vitiated the conviction and sentence. 4. The complainant himself acting as the investigating officer violated the principles of fair and impartial investigation.
Final Decision: The appeal was allowed, and the impugned judgment, order of conviction, and sentence were quashed and set aside. The appellant was directed to be set at liberty forthwith, unless wanted in connection with any other case.
Md. Mumtaz Khan, J.
1. This appeal is preferred by the appellant assailing the judgment, order of conviction and sentence dated December 17, 1991 and December 18, 1991 respectively passed by the learned judge 9th Bench, City Sessions Court, Calcutta in Sessions Trial No. 1 of September 1991 arising out of Sessions Case No. 8 of 1990. By virtue of the impugned judgment appellant was convicted for commission of the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and was sentenced to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1 lakh in default to suffer rigorous imprisonment for 3 years more and the period of detention already undergone by the appellant was directed to be set off under the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.)
2. Prosecution case, in brief, is as follows:-
On February 12, 1987 at about 11.35 hours, P.W.7 by producing the appellant at Burtolla P.S. along with 3 gms. of 'Heroin' made one G.D. Entry being No. 840 dated February 12, 1987 at the said P.S. stating that pursuant to source information he arrested appellant at about 11.25 hours from the crossing of Beadon Street and Bidhan Sarani having in possession of 3 gms. of 'Heroin' in 3 cellophane paper packets kept concealed in his shirt and accordingly he seized the same by a seizure list in presence of P.W.1 and P.W.2 for prosecuting the appellant for commission of the offence under Section 27 of the N.D.P.S. Act.
3. On the basis of the above G.D. Entry, P.W.7 himself started Burtolla P.S. Case No. 50 dated February 12, 1987 under Section 27 of the N.D.P.S. Act against the appellant and also took up investigation of this case and thereafter on completion of the investigation/ enquiry he submitted enquiry report on January 16, 1989 under Section 21 of the N.D.P.S. Act against the appellant.
4. Charge was framed on August 8, 1991 against the appellant under Section 21 of the N.D.P.S. Act and after the appellant pleaded not guilty to the charge, trial proceeded.
5. Prosecution examined 7 witnesses and also produced and proved certain articles and documents and thereafter on completion of trial and after examining the appellant under Section 313 Cr.P.C. learned Trial Court passed the impugned judgment and order.
6. It is submitted by Mr. Debabrata Roy, learned amicus curiae, that the impugned judgment, order of conviction and sentence cannot be sustained in law as the mandatory provisions relating to search and seizure of the contraband article as also provisions of Section 42 as also Section 50 of the Narcotic Drugs and Psychotropic Substance Act had not been complied with in the instant case and there was also anomaly with regard to the weight of the seized article in between the Malkhana register (Ext.5), Seizure list (Ext.6), GDE (Ext.7), FIR (Ext.8) and the evidence adduced by the prosecution. According to Mr. Roy as per the Malkhana Register, forwarding report (Ext.4) and the evidence adduced by P.W.7, 3 gms. of 'Heroin' were sent for chemical examination but in the report of the expert (Exhibit 2) the samples sent for chemical examination has been described as 1.5085 gms. and there was also unexplained delay in sending the sample for chemical analysis which raised doubt about the prosecution story. It is also submitted by Mr. Roy that complainant had also acted as I.O. in the instant case which was not permissible under the law. According to Mr. Roy, Ld. Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned judgment and order of conviction and sentence.
7. Reliance is placed by Mr. Roy on the decisions of Megha Singh Vs. State of Haryana, reported in (1996) 11 SCC 709 and State by Inspector of Police, Narcotic Intelligence Bureau, Madurai Vs. Rajangam, reported in (2010) 15 SCC 369 in support of his submission.
8. Mr. Ranabir Roy
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