Ashfaque Ahamed vs State Of West Bengal

Tirthankar Ghosh, J

The present application for bail has been preferred in c onnection with ST-2(5)19 of 2019 arising out of Anandapur Police Station Case no. 283/2017 dated 24.11.2017 under Section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 presently pending before the learned Judge, Special Court under NDPS Act and Additional Sessions Judge, 12th Court, Alipore, 24 Parganas (South). The aforesaid case was registered on the basis of a complaint addressed by one Ujjwal Ghosh, S.I. of Narcotic Cell D.D. to the Officer-in-charge of Anandapur Police Station which is extracted below:

"Beg to submit that today (24.11.2017) at about 6.00 hrs received credible source information that some Heroin seller/ supplier would come to sell/supply Heroin in the vicinity of Anandaupr PS area in the morning on 24/11/2017. The information was reduced to writing and was forwarded to O.C, Narcotic Cell, D.D. A raiding team (as per attached permission letter dt.24.11.2017) was formed and took permission of AC. Narcotic Cell., DD at about 08.10 hrs to conduct a raid. At about 08.30 hrs left office/Lalbazar for the spot along with raiding team, source, weighing scale, narcotic drug testing Kits, packing materials (including brass seal of DC, DD Special) and other accessories.

At about 09.10 hrs we reached near Oasis Nature Apartment on Chowbaga Road Anandapur P.S. area. Sources led us to the spot and maintained watch. At about 9.40 hrs source pointed out towards three male persons and one female who were coming along Chowbaga Road from E.M. Byepass side. Undersigned detained them with the help of other raiding team members including lady police on the road in front of Oasis Nature Apartment at 266, Hossenpur, Chowbaga Road under Anandapur P.S, Kol-107 and disclosed our identity, and purpose of detention.

Meanwhile a small crowd gathered there, the undersigned requested every one, present there, to stand witnesses of search and seizure under NDPS Act. Two persons came forward voluntarily to stand witnesses as per seizure list dated 24/11/2017.

On being asked the detainees disclosed his name as 1. Ashfaque Ahmed (27), S/O. Md Seraj Ahmed of 4/4, East Yard, CPT Qrts, Khidderpore, P.S.- SPPS, Kol-23 2. Taherul Islam (28), S/O- Lt. Abdul Samad, Vill-Nowda, P.O- Baharyl, P.S- Hemtabad, Dist-Uttar Dinajpur 3. Baidyanath Burman (38) S/O- Gopal Burman of Vill- Piplan, P.O- Birgai, P.S- Raigunj, Dist- Uttar Dinajpur. 4. Joystna Barman (45), W/O- Baidyanath Barman Vill-Piplan, P.O.-Birgai, P.S- Raiganj, Dist-Uttar Dinajpur.

Then, the undersigned gave the written option to the detained persons informing about their legal rights to be searched in presence of a Ld. Magistrate or a Gazetted Officer. The undersigned explained the meaning & terms of Gazetted officer and Magistrate to the detainee. They agreed to be searched on the spot in presence of a Gazetted officer. They refused to go anywhere else. I searched for a gazette officer in the locality, but failed to find out any one.

I informed my superior officers regarding the whole matter. At about 12.00 hrs Inspector Mayuk Moy Roy, Addl. O/C Aandapur P.S came to spot in uniform by his official car. I introduced him as Gazetted officer to the detainees and witnesses and apprised him about the facts so far. Addl. O/C Anandapur P.S gave 2nd option, written by him to the detainees.

The detainees again re-confirmed to be searched on the spot in presence of Gazetted officer and the gazetted officer himself explained the meaning of terms of Gazetted officer and Magistrate to the detainees. The detainees also wanted to search the person of the searching officer and other raiding team member prior to their own search. Lady detainee also wanted to search the person of Lady Police Kuheli Sarkar prior to her own search. They did the same but found nothing like narcotic substance from the possession of the undersigned and other raiding team member except our personal belongings.

After that the Undersigned started to search the detainees on the spot in presence of all and found one black coloured polythene packet from the left hand side pocket of wearing trouser of accused no-1 namely Ashfaque Ahmed. Undersigned opened the same and found brown coloured powder in a heat sealed polythene packet said to be Heroin weighing about 256 grams as mentioned in seizure list dated 24/11/2017. Also found cash Rs 160/- as p.p. Then searched accused no-2 namely Taherul Islam (28) and found brown coloured powder in a heat sealed polythene packet said to be Heroin weighing about 20 grams as mentioned in seizure list dated 24/11.2017. Also found cash Rs 80/- as p.p. then searched accused no. 3 namely Baidyanath Burman and found brown coloured powder in a heat sealed polythene packet said to be Heroin weighing about 20 grams as mentioned in seizure list dated 24/11/2017. Also found cash Rs 50/- from him as p.p. Then lady police LSI Kuheli Sarkar searched female accused namely Jyostna Barman maintaining decency and decorum and found one red coloured velvet hand bag with white coloured zip from her right hand immediately handed over the same to the under signed. Under signed opened the same and found brown coloured powder in a heat sealed polythene packet said to be Heroin weighing about 20 grams as mentioned in seizure list dated 24/11/2017. Also found cash Rs 110/- from this bag as p.p.

I tested some portion of the contraband drugs/ powder from each packet after puncturing the heat sealed transparent packet with the help of testing kits and found all are positive for the presence of Heroin. I took weight of the contraband drug with the help of weighing machine and found 256 grams + 20 grams+20 grams + 20 grams = 316 grams of brown coloured powder said to be Heroin. The punctured portion was repaired. Took sample 5 grams of brown coloured powered from each mother exhibits and packed labeled and sealed in separate envelope and marked as A1, C1, E1 & H1.

The narcotic drugs and cash were seized from the possession of the above noted accused Persons under a proper seizure list dated 24/11/2017. Then undersigned packed labeled and sealed the drugs & cash separately and marked as A, B, C, D, E, F, G, H & I and on the spot in presence of the G.O, witnesses and the accused persons. All of them have put their signature/LTI on the seizure list and on all the labels.

The detainees could not render any satisfactory explanation for possession of the above noted drugs. As such they were arrested at the place of detention at about 16.30 hrs and Memo of arrest and Inspection Memo were served.

Undersigned also examined the witnesses and the Gazetted officer at the spot and recorded their statements.

Then undersigned have come to this police station along with the arrested accused person, raiding team, seized items in sealed condition, seizure list and other relevant case documents prepared by me and handed over the same before you with a request to prepare an Inventory list U/S NDPS Act.

Therefore, I request your good self to start a case U/s- 21(C)/29 NDPS Act against 1. Ashfaque Ahmed (27), S/O. Md Seraj Ahmed, 2. Taherul Islam (28), S/O- Lt. Abdul Samad, 3. Baidyanath Burman (38) S/O- Gopal Burman 4. Joystna Barman (45), S/O- Baidyanath Barman for possession and supply of Heroin and oblige."

Records reflect that on completion of investigation the Investigating Agency submitted charge-sheet and after framing of charge the evidence of one of the witness has already been completed.

Mr. Basu, learned senior Advocate appearing for the petitioner submitted that there has been gross illegality committed in the instant case inasmuch as the initial test report which was furnished by the West Bengal State Drug Control and Research Laboratory reflected that the samples which were sent by the investigating Officer did not contain 'Heroine' and as such do not come under the purview of the NDPS Act., 1985. Learned counsel submitted that surprisingly, the investigating Officer of the case preferred an application before the learned Special Court on 02.02.2018 and the learned Court by an order dated 03.02.2018 without assigning any reason was pleased to send the remnant samples for a second test as prayed for by the investigation Officer to be conducted by the Central Forensic Science Laboratory. According to the learned Advocate, although, subsequent test of the Central Forensic Science Laboratory reflected that the samples which were sent were covered under the NDPS Act, 1985 but there has been complete non-compliance of the guidelines laid down by the Hon'ble Supreme Court in the case of Thana Singh -Vs. - Central Bureau of Narcotics reported in (2013) 2 SCC 590. In support of his contention the petitioner submitted that there are no provision under the NDPS Act for re-testing and the only process through which an investigating agency is entitled to invoke such process of second testing is by adhering to paragraph 27 of the aforesaid judgment which is as follows:

"27. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act."

It has been emphasized that as the Investigating Agency has acted contrary to the manner set out in the aforesaid guidelines the second test cannot be taken into account and the petitioner as such is entitled to be released on bail.

Mr. Bardhan, learned advocate appearing for the State opposes the prayer for bail and submitted that the provision of Section 37 of the NDPS Act  are  attracted  in  the  present  case  as  the   quantum  of  seizure  of contraband (Heroine) is of commercial quantity. Learned Advocate further submitted that no question has been raised by the petitioner till date regarding the seizures which have been affected from him or his associates. It has been also brought to the notice of the Court that earlier the present petitioner's bail was rejected on 08.06.2018 in CRM No. 3491 of 2018 and the same was after the charge-sheet was filed on 19.04.2018 and cognizance was taken by the learned Special Court.

In State of Haryana -Vs. - Ranbir reported in (2006) 5 SCC 167 it has been observed:

"12. ...A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom."

In Thana Singh (supra) the Hon'ble Apex Court was considering a case where the accused was languishing in prison for more than 12 years awaiting commencement of his trial under the NDPS Act. Further the said provisions were interpreted in the background that such application for re-testing are often received by the Court at advance stage of trial and after significant lapse of time and the Court by taking resort to the provisions of Section 79 and 80 of the NDPS Act, which permit application of the Customs Act, 1962 and Drugs and Cosmetic Act, 1940 allow such retesting. The Hon'be Apex Court, thus, was of the opinion that as in respect of Section 25(4) of Drugs and Cosmetic Act, 1940 and Section 13(2) of Food Adulteration Act, 1954 and rule 56 of the Central Excise Rule, 1944 a time period of 30, 10 and 20 days respectively have been fixed for filing such application for retesting, the absence of such provisions in the NDPS Act should not enure any benefit to the Investigating Agency for retesting of the sample.

In the instant case, we find that seizure was affected on 24.11.2017 and prayer was advanced before the learned Court for sending the sample to the State Drug Control and Research Laboratory on 25.11.2017 which was allowed by the Court on the same date. The test report reflects that on 30.11.2017 from the official forwarding letter and inspector's memo, the samples were received on 30.11.2017. The test report further reflects that the period of testing by the authorities were from 03.12.2017 to 04.01.2018 and the said report was prepared on 01.02.2018. On 02.02.2018 the Investigating Officer of the case made prayer for further testing and the learned Special Court allowed such prayer on 03.02.2018. As such the time period and the schedule so mentioned in the judgment of Thana Singh (supra) has not been violated by the Investigating Agency. Moreover, the fact of the present case reflects that the said prayer for retesting was advanced at a very early stage that is in course of investigation prior to submission of charge-sheet.

It would not be out of place to state that when the application for retesting was preferred the records of the learned Special Court already contained documents including the FIR which stated that the initial testing kit in respect of the samples so seized from the petitioners and his associates responded positive to the test of 'Heroine' as such there were reasons for investigating Officer to have suspicion regarding the finding of the State Drugs and Research Laboratory which reflected results as "negative for the presence of Heroine" and "do not contained Heroine". The application made by the Investigating Officer specifically mentioned that the State Drugs and Research Laboratory did not mention the actual status of the said "contraband/drug" and thus prayed for sending the remnants in sealed condition to the Central Forensic Sciences Laboratory for further testing. The learned special Court while considering the application preferred by the Investigating Officer dated 02.02.2018 on 03.02.2018 categorically recorded "I.O. S.I. Kalyan Biswas has submitted prayer for sending the remants of the samples in sealed condition marked 'A1', 'C1', 'E1', 'H1' to Central Forensic Laboratory, 30, Gora Chand Road, Kol-14 for further test regarding presence of codeine/morphine like narcotic substances, A Xerox Copy of Letter received from Director, State Drug Control and Research Laboratory along with Xerox Copy of Report of Analysis by said Laboratory is enclosed with the application.

Heard Ld. P.P.-in-Charge.

Perused the petition and its enclosure. Considered.

Prayer for further examination of the remnants of the samples in sealed condition is allowed to be held at Central Forensic Science Laboratory as per prayer of the I.O.

I.O. is accordingly directed to take steps for sending the same to C.F.S.L., Kolkata."

The circumstances under which the Investigating Officer advanced the prayer obviously at that stage of the investigation is extremely exceptional circumstance as the report of the State Drug and Research Laboratory was contrary to the evidence so found at the spot by the test kit used by the Investigating Agency which definitely raised suspicion and called for retesting or further test.

The order passed by the learned Special Judge reflects that the learned Special Judge perused the petition along with enclosures considered the same and thereafter allowed such prayer. Perusal by the learned Special Judge will obviously mean perusal of the report of the State Drugs and Research Laboratory, the contention and reason assigned by the applicant being the Investigating Officer of the case and the First Information Report which was part and parcel of the Court record at the relevant point of time.

Further the petitioner had the liberty to canvas such point at the time of consideration of charge, having accepted the charge the petitioner cannot ventilate such grievance to be considered in a bail application when evidence is being recorded and the trial of the case is in progress.

In view of the provisions of Section 37 of the NDPS Act which calls for satisfaction of the Court for believing that the accused is not guilty of the offences, I am of the opinion that the privilege of bail cannot be extended to the petitioner, taking into consideration the materials collected by the Investigating Agency and the stage of the case until and unless the evidence of the expert is rebutted in course of the trial.

Accordingly, the bail application being CRM No. 954 of 2021 is dismissed.

However, learned Trial Court is directed to proceed with the trial by adhering to the provisions of Section 309 of the Code of Criminal Procedure.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of the requisite formalities.