Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 283

IN THE HIGH COURT AT CALCUTTA
DEBANGSU BASAK, MD. SHABBAR RASHIDI, JJ.
Jara Ram @ Jora Ram & Anohter - Appellant
Versus
The State of West Bengal - Respondent
CRA. Nos. 35 & 164 of 2021 with CRAN 2 of 2021
Decided On : 28-02-2023

Advocates appeared:
For the Appellants:Dipanjan Dutt, Surojit Saha, Dipanjan Chatterjee, Sonali Das, Advocates.
For the Respondent:Antarikshya Basu, Advocate.

The provisions of Section 43 of the Narcotics Drugs and Psychotropic Substances Act, 1985 apply to the search and seizure of a Public Transport Vehicle on a highway, and non-compliance of Section 42 of the Act does not vitiate the search and seizure.

Headnote:
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 15 (C)/29 - CONVICTION - APPEAL - ISSUES - (I) WHETHER THE SEARCH AND SEIZURE WAS CARRIED OUT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT? (II) WHETHER THE APPELLANTS WERE PREJUDICED BY THE NON-COMPLIANCE OF SECTION 313 OF THE CRIMINAL PROCEDURE CODE?
Fact of the Case:

The appellants were convicted under Section 15 (c)/29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 for possessing commercial quantity of narcotics. The prosecution's case was that the appellants were intercepted in a vehicle on a highway and upon search, 5 sacks containing poppy straw were recovered. The appellants denied the charges and claimed to be falsely implicated.
Finding of the Court:

The court found that the search and seizure was carried out in accordance with the provisions of the Act. The court relied on the testimonies of the prosecution witnesses, the documentary evidence, and the fact that an official of the rank of Joint Block Development Officer was present during the search and seizure process. The court also found that the appellants were not prejudiced by the non-compliance of Section 313 of the Criminal Procedure Code as all incriminating materials had been placed before them in their respective examinations.
Issues: (I) Whether the search and seizure was carried out in accordance with the provisions of the Act? (II) Whether the appellants were prejudiced by the non-compliance of Section 313 of the Criminal Procedure Code?
Ratio Decidendi: 1. The provisions of Section 43 of the Act of 1985 would apply in the facts and circumstances of the present case, where the search and seizure had been made from a Public Transport Vehicle and that the vehicle registration number of the same would establish it to be a public transport vehicle. 2. The search and seizure cannot be said to be vitiated due to non-compliance of Section 42 of the Act of 1985. 3. The accused has to point out the prejudice that was caused to him if a certain incriminating fact has not been put to him during his examination. In the present case, the appellants had been found to be in a vehicle containing the contraband material and they had not shown how the contraband material came to be found in the vehicle.
Final Decision: The appeals were dismissed and the judgment of conviction and the order of sentence were affirmed.

JUDGMENT

Debangsu Basak, J.

1. Two appeals have been heard analogously as they have emanated from the same impugned judgement of conviction dated December 14, 2020 and order of sentence dated December 15, 2020 passed by the learned 3rd Special Court at Burdwan (NDPS) in Special (NDPS) Case No. 06/2017.

2. By the impugned judgement of conviction dated December 14, 2020 the learned judge has convicted the appellants under Section 15 (c)/29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and by the impugned order of sentence dated December 15, 2020, the learned judge has imposed a sentence of rigorous imprisonment for 10 years each and to pay a fine of Rs. 1 lakh each and in default of payment of the fine, to suffer further rigorous imprisonment for 2 months against each of the appellants.

3. CRA No. 35 of 2021 has been filed by Jara Ram alias Jora Ram and for the sake of convenience, he is referred to as the first appellant. CRA No. 164 of 2021 has been filed by Ratan Rajak and for the sake of convenience he is referred to as the second appellant.

4. A First Information Report bearing No. 32/17 dated January 31, 2017 had been registered by the Kanksa Police Station under Sections 8 (c) read with Section 15 (c) of the Act of 1985 on the basis of a suo moto complaint lodged by a sub inspector of police on January 31, 2017. The police had conducted an investigation with regard to such First Information Report and submitted a charge sheet. Charges under Section 8 (c) read with Section 15 (c) of the Act of 1985 had been framed as against the appellants on October 26, 2017.

5. The appellants had pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution had examined 6 witnesses and produced various documentary and material evidences which were marked as exhibits. On the conclusion of the evidence of the prosecution, the appellants had been examined under Section 313 of the Criminal Procedure Code.

6. The prosecution at the trial had claimed that, acting on a source information, police intercepted a vehicle on January 31, 2017. On physical verification of the vehicle, the police had found the 2 appellants therein. On searching the vehicle, police had seized commercial quantity of narcotics. The search and seizure had been carried out in accordance with the provisions of the Act of 1985. A suo moto police complaint had been lodged which was registered as the First Information Report. Samples of the seized narcotics had been sent for forensic examination whereupon the test results that confirmed that the seized goods were narcotics.

7. A sub- inspector of police had deposed as PW 1. He had stated that, he was on mobile duty on January 31, 2017 with other constable forces, when, PW 6 called them to join PW 6 in working out an information received by PW 6 that a vehicle carrying poppy straw was coming to Illambazar side along with Panagarh Moregram Road. Accordingly, they had gone to the Dhobaru jungle on Panagarh Moregram Road to accompany PW 6 at 5 PM. After arrival at the place, PW 6 had disclosed to him about the information and the purpose of the interception of the vehicle. They had laid an ambush. After some time, they had found a trailer vehicle matching the information to be coming from Illambazar side. They had intercepted such vehicle and found the two appellants herein as the occupants of such vehicle. They had removed the tarpaulin on the trailer and found that the trailer was loaded with iron bar and some sacks kept concealed from which pungent smell of poppy straw was coming out. PW 6 had informed the matter to the authorities for their presence on the spot for the purpose of search and seizure. Thereafter, at about 7 PM, Circle Inspector, Kanksa and Block Development Officer, Kanksa had arrived. Circle Inspector, Kanksa had issued a notice upon the appellants for conducting manual search of the police personnel and the search of their personal property in presence of a Magistrate or a Gaze