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2019 Supreme(Cal) 424
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
JOYMALYA BAGCHI, MANOJIT MANDAL, JJ.
Md. Sarfaraz @ Bonu and Others – Appellants
Versus
The Union of India – Respondent
C.R.A. Nos. 384, 667 of 2017
Decided On : 09-08-2019
Advocate Appeared:
Sandip Chakraborty, Diptendu Banerjee, Sinthia Bala, Meenal Sinha, Sanjoy Bardhan, Trina Mitra, Hasi Saha, Amajit De, Kaushik Dey.
The main legal point established is that the evidence of official witnesses and independent witnesses, along with voluntary statements of the accused, can be used as corroborative evidence to support the prosecution's case.
Headnote:
NDPS Act - Conviction under Sections 20(b)(ii)(c) read with section 29 of the NDPS Act - Summary of Acts and Sections: NDPS Act, Section 20(b)(ii)(c), Section 29
Fact of the Case:
The appellants were convicted for carrying narcotic drugs (Hashish) on a train. The prosecution alleged that the appellants were found with the contraband and admitted their guilt. The defense claimed innocence and false implication.
Finding of the Court:
The court found the evidence of the official witnesses and independent witnesses to be convincing, upholding the prosecution's case. The court also upheld the voluntary statements of the appellants recorded under section 67 of the NDPS Act as corroborative evidence.
Issues: The issues included the admissibility of affidavit evidence, lack of corroboration from independent witnesses, and the voluntary statements of the appellants recorded under section 67 of the NDPS Act.
Ratio Decidendi: The court held that the evidence of the official witnesses and independent witnesses, along with the voluntary statements of the appellants, supported the prosecution's case. The court also addressed the admissibility of affidavit evidence and the objections raised at the appellate stage.
Final Decision: The court dismissed the appeals, upholding the conviction and sentence of the appellants, with a set-off for the period of detention suffered during investigation, inquiry, or trial.
JUDGMENT :
JOYMALYA BAGCHI, J.
1. Appeals are directed against the judgment and order dated 30.03.2017 and 01.04.2017 passed by the learned Judge, Special Court, NDPS Act, Siliguri in C.R. (NDPS) Case No. 2 of 2012 convicting the appellants for commission of offence punishable under Sections 20(b)(ii)(c) read with section 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- in default, to suffer further rigorous imprisonment for six months each.
2. The prosecution case as alleged against the appellants is as follows:-
Pursuant to secret information received by DRI, Deputy Director DRI, Siliguri Regional Unit, that five persons will be carrying narcotic drug (Hashish) coach no. S-7, berth no. 23, 31 and 39 of Kanchankanya Express officers of DRI of Siliguri Regional Unit went to New Jalpaiguri Railway Station on 28.01.2012 around 08:00 p.m. to work out the said information. Kanchankanya Express which was scheduled to arrive at NJP station at 20:15 hours was late by half an hour on that day. At 20:50 hours the train arrived at platform no. 3 of the said railway station. Thereupon, DRI officers boarded sleeper coach no. S-7. One Md. Islam was found occupying berth no. 23 while berth no. 31 was occupied by Nasim Akhter and Amirul Rahaman and berth no. 39 was occupied by Kamaluddin and Md. Sarfaraz. They stated that they were travelling together and had boarded the train to proceed to Kolkata. They produced their e-ticket bearing PNR No. 6106317529 of 13150 Kanchankanya Express. Out of the five names printed on the ticket four names tallied with the aforesaid persons whereas the name mentioned in serial no. 4 of the ticket was Md. Nadim but actually Kamaluddin was found to be travelling in the said seat. On query the aforesaid persons clarified that the said name had been mistakenly given at the time of booking and Kamaluddin was travelling in the name of Md. Nadim. The said persons were directed to produce their luggage. Upon noticing suspicious circumstances and on preliminary checking of the luggage, the said appellants were directed to accompany the officers to the DRI office at Pradhan Nagar along with their luggage. The officers checked the luggage at the DRI office in presence of independent witnesses. From a trolly luggage bag marked Corallite, 24 packets wrapped in plastic tapes was recovered. From another luggage bag marked Cloudragon, 8 identical packets and 2 packets of cylindrical shape wrapped with adhesive tapes were recovered. On unwrapping the packets, 48 cakes of blackish material suspected to be Hashish were recovered from the trolly bag while 12 cakes of similar material suspected to be Hashish were recovered from the eight packets in other bags. 60 and 59 capsules respectively containing contraband suspected to be Hashish were recovered from the two cylindrical packets. Upon weightment, 60 cakes of black sticky material suspected to be Hashish were found to be 30.440 kgs. Weights of 60 and 59 pieces of capsules were noted as 580 gms. and 590 gms. Respectively. Contraband suspected to be Hashish was found from the 119 capsules as per the accused persons. The contraband articles were seized under a seizure list. In total 100 grams of representatives samples were drawn from the seized contrabands and sent for chemical examination. The remaining seized material were kept in an envelope in the godown of the Siliguri Customs and was subsequently disposed of under the supervision of the Magistrate under section 52A Cr.P.C. Statements of the appellants were recorded under section 67 of the NDPS Act where they admitted their guilt and claimed that they had received Hashish from Kathmandu and were taking it to Kolkata. Upon receiving of chemical examiner's report disclosing that the contraband contained Hashish, complaint was filed against the appellants.
3. In conclusion of investigation, charges were framed against the appellants under Section 20 (b)(ii)(c) re
