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2019 Supreme(Cal) 809
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
JOYMALYA BAGCHI, MANOJIT MANDAL, JJ.
Ashit Biswas and Another – Appellants
Versus
The State of West Bengal – Respondent
CRA Nos. 448, 486 of 2012
Decided On : 26-11-2019
Advocate Appeared:
For the Appellants : Prabir Majumder, Snehangsu Majumder.
For the Respondents: Sanjoy Bardhan, Saryati Dutta.
The prosecution must establish the chain of custody of seized evidence, ensure credibility of witness statements, and produce crucial evidence to prove guilt beyond reasonable doubt.
Headnote:
N.D.P.S. Act - Narcotic Drugs and Psychotropic Substances Act - Section 20(b)(ii)(c), Section 29
Fact of the Case:
The appellants were convicted under Section 20(b)(ii)(c)/29 of the N.D.P.S. Act for possession of Ganja. The prosecution's case was based on a raid conducted by the police, seizure of Ganja, and subsequent legal proceedings.
Finding of the Court:
The court found discrepancies in the evidence regarding the chain of custody of the seized Ganja, contradictions in witness statements, and failure to produce crucial evidence such as the weighing machine. The court concluded that the prosecution failed to prove the appellant's guilt beyond reasonable doubt.
Issues: Chain of custody of the seized Ganja, credibility of witness statements, non-production of crucial evidence, timing of the seizure and registration of FIR.
Ratio Decidendi: The discrepancies in the chain of custody and evidence, contradictions in witness statements, and failure to produce crucial evidence undermined the prosecution's case, leading to the acquittal of the appellant.
Final Decision: The conviction and sentence of the appellant under Section 20(b)(ii)(c) and 29 of the N.D.P.S. Act were set aside, and the appellant was acquitted of the said offence.
JUDGMENT :
MANOJIT MANDAL, J.
1. These two criminal appeals are directed against the judgment and order of conviction and sentence dated 21.05.2012 and 22.05.2012 respectively passed by learned Judge, Special Court, N.D.P.S. Act, Nadia at Krishnagar in N.D.P.S. Case No. 24 of 2011 convicting the appellants under Section 20(b)(ii)(c)/29 of the N.D.P.S. Act and sentencing them to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 1,00,000/- (Rupees One Lakh only) in default to suffer rigorous imprisonment for 2 years.
2. On the basis of the written complaint (Ext.3) lodged by PW-1, Kanchan Roy Mukherjee, S.I. of Police, Kotwali Police Station, District-Nadia, the instant case was registered.
It is alleged in the FIR that on 24.03.2011 at 17:55 hours PW-1 received secret information that clandestine and illegal business of narcotic drugs (Ganja) cannabis is taking place in Anandamayeetala area under Police Station Kotwali, Nadia. The information was diarised and Superior Officer was intimated and on receiving necessary order, S.I. of police Atanu Banerjee (PW-2), police driver Swapan Malo (PW-3), homeguard Gopal Das (PW-4) led by PW-1 proceeded to conduct a raid. On arrival at the spot at about 18:25 hours they found appellants were standing by the side of the road and gossiping in low voices. On seeing the police, appellant Samar Mondal managed to flee away but the police party apprehended appellant Ashit Biswas with something in his hand. PW-1 arrested the appellant Ashit Biswas with a polythene packet containing Ganja and on observing all formalities of search and seizure, Ganja was seized and weighed and found to be 23 kilograms. Sample was taken from the consignment, packed, sealed and labeled. On completion of all formalities of search and seizure, PW-1 filed written complaint resulting in Kotwali P.S. and Kotwali P.S. Case No. 214/2011 was started.
3. PW-7 Sri Tapan Kumar Chatterjee, being S.I. of Police, took over the case as Investigating Officer (hereinafter referred to as I.O.). The samples were sent for chemical examination and he collected the chemical examination report. In conclusion of investigation, PW-7 submitted the charge-sheet whereupon cognizance was taken. The case came on the file of the learned Trial Judge for disposal.
4. To bring home the charge, the prosecution examined 7 prosecution witnesses. PW-1, Kanchan Roy Mukherjee and PW-2, Atanu Banerjee are S.I. of Police attached to Kotwali Police Station. PW-3, Swapan Malo is the police driver of Kotwali Police Station. PW-4 is a Home guard Gopal Das. PW-5 is the independent witness. PW-6 is Inspector of Police Arun Kumar Das. PW-7 is the Investigating Officer. On analyzing the evidence both oral and documentary, produced at the trial by the prosecution, the Trial Court held that the charges had been duly proved.
5. At the outset, Mr. Prabir Majumder, learned Advocate submitted that appellant Samar Mondal had died at Santipur, Nadia on 12.07.2014. Xerox copy of cremation/ burial certificate is placed on the record. Since the appellant Samar Mondal had died, appeal being CRA No. 448 of 2012 stands abated and is disposed of accordingly.
6. Mr. Majumder, learned Advocate appearing on behalf of appellant Ashit Biswas submitted that the chain of custody of narcotic drugs has been not established. He further submitted that public witness (PW-5) of the alleged search and seizure has not corroborated the prosecution case. As all the witnesses excepting PW-5 were of the same department the Court should not come to a firm conclusion on their uncorroborated version that the case has been proved. He further submitted that in the seizure list (Ext.2) P.S. Case number has been mentioned clearly improbability the prosecution case. He also submitted that there are contradictions in the evidence of the prosecution witnesses, as such their evidence cannot be accepted. He further submitted as no weighing machine was produced in Court, therefore, prosecution case sh
