Sunil Kumar Roy vs State of West Bengal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 488

IN THE HIGH COURT AT CALCUTTA
Joymalya Bagchi, Ajay Kumar Gupta, JJ.
Sunil Kumar Roy & Anr. – Appellants
Versus
The State of West Bengal – Respondent
C.R.A. 118 of 2019 (CRAN 2 & 3 of 2021)
Decided On : 28-04-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sekhar Kumar Basu, ld. Sr. Adv., Mr. Soubhik Mitter, Adv., Ms. Rajnandini Das, Adv.
For the Respondent: Mr. Saibal Bapuli, ld. A.P.P., Mr. Bibaswan Bhattacharya, Adv.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(c), 29, 41(2), 42, (1), (2) 43 - Code of Criminal Procedure, 1973 - Section 437A - Ganja were recovered - Appeal against conviction - Appeal against judgment and order passed by learned Judge, Special Court under NDPS Act-cum-Additional Sessions Judge in Special Case convicting appellants – Held, Presence of gazetted officer in terms of section 50 of NDPS Act would not establish that search was either conducted by gazetted officer or latter had authorized empowered officer i.e. P.W. 1 under section 41(2) of NDPS Act to hold same - A gazetted officer who is present at time of search in terms of section 50 of NDPS Act is not a member of raiding party - Search cannot be said to have been conducted under his leadership or by an officer authorized by him under section 41(2) of NDPS Act - P.W. 2 from complying with mandatory requirements of section 42 of NDPS Act – Court is of opinion there is total non-compliance of section 42 of NDPS Act in matter of search and seizure of narcotics which has vitiated trial - Appellants are accordingly acquitted – Appeal allowed.

JUDGMENT :

Joymalya Bagchi, J.

1. Appeal is directed against judgment and order dated 18th December, 2018 and 19th December, 2018 passed by the learned Judge, Special Court under the NDPS Act-cum-Additional Sessions Judge, 1st Court, Bankura in Special Case No.21 of 2017 convicting the appellants for commission of offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentencing them to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-each, in default, to suffer rigorous imprisonment for one year more.

2. Prosecution case, as alleged against the appellants is to the effect that on 27th July, 2017, SI, Ashis Majumdar (PW1), Special Operation Group, CID, West Bengal received credible information that a gang of professional criminals dealing in Andhra Pradesh Malkhana made cannabis in high percentage are clandestinely operating by procuring/selling the contraband to different users for wrongful gain. Information revealed that the criminals used to carry their stock in car from Andhra Pradesh. They would transport the contraband in the night between 27.7.2017 to 28.7.2017 and reach Burdwan by 28.7.2017. The matter was informed to the superior and with his consent PW1 and his team proceeded to work out the information. Enroute PW1 contacted his source who informed the contraband would be carried in a red coloured Alto vehicle bearing registration mark JH 01 CJ 9992 and would cross Bishnupur more in the morning or early noon through NH 60. The team reached Bishnupur Police Station and diarised the information vide Bishnupur P.S. G. D. Entry No.1144 dated 28.07.2017. Thereafter, the raiding team being accompanied by police officials of Bishnupur Police Station lay ambush in front of Hindu Hotel of Bapi Mahato on NH 60. Around 11.30 hours they stopped a red Alto car bearing registration mark JH 01 CJ 9992 and intercepted the appellants. Written notice was given to the appellants offering them to be searched before a gazetted officer or Magistrate. They expressed their willingness to be searched before a gazetted officer. Inspector of DDI, Prasanta Kumar Nandi (PW9) was summoned to the spot. Upon search, two white plastic bags containing 41.155 kgs. and 41.860 kgs. each suspected to be ganja were recovered. Samples were drawn from the seized consignment. Appellants were arrested and along with the vehicle and seized contraband were brought to the police station. PW1 lodged first information report resulting in registration of Bishnupur Police Station Case No.122 dated 28.07.2017 under Sections 20(b)(ii)(c)/29 of the NDPS Act. In course of investigation, the seized contraband was produced before the Judicial Magistrate by the Investigating Officer (PW11). Inventory was made in presence of the Judicial Magistrate and certificate issued. Photographs and videography of the inventory were also done. Samples drawn from the contraband and sent for chemical examination. Report of the State Drug Control and Research Laboratory, Ext.15 was obtained. In course of investigation, complicity of one Prosenjit @ Mahabir Chowdhury transpired and charge-sheet was filed against the appellants and said Prosenjit @ Mahabir Chowdhury.

3. Charges were framed under Sections 20(b)(ii)(c)/29 of the NDPS Act against the appellant and the said Prosenjit @ Mahabir Chowdhury. They pleaded not guilty and claimed to be tried.

4. Prosecution examined 11 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication.

5. In conclusion of trial, the trial Judge by judgment and order dated 18.12.2018 and 19.12.2018 convicted and sentenced the appellants, as aforesaid. Co-accused viz., Prosenjit @ Mahabir Chowdhury was acquitted on the ground of lack of evidence.

6. Ashis Majumdar (PW1) is the leader of the raiding party. He deposed he received prior information with regard to the transportation of cannabis by a gang of persons from Andhra Pradesh to West Bengal. He informed the matt