Babu Das vs State of West Bengal

Basudeva Panigrahi, J.—This appeal is directed against an order of conviction and sentence passed u/s 21 of the N.D.P.S. Act, 1985 whereby the Appellant has been asked to undergo R.I. for 10 years and to pay a penalty of Rs. 1,00,000.00, in default, to suffer R.I. for a period of one year further.

The prosecution case shortly stated in course of hearing is that on October 13, 1993 at about 1-00 p.m. Manoj Kumar Das, S.I. of Police of Entally P.S. having received a secret information that one herein pleader was likely to come in front of the main gate of Chinese Burial Ground on D.C. Dey Road, therefore, he along with Saroj Kumar Bhattacharjee, the then Officer-in-Charge of the Entally P.S. with other Constables proceeded to the main gate of Chinese Burial Ground on D.C. Dey Road. They kept close surveillance on the movement of the Appellant Babu Das @ Nona and intercepted him on suspicion at about 14-10hrs. Accordingly, the raiding party had surrounded and apprehended the Appellant for the purpose of interrogation.

In course of interrogation the Appellant disclosed his name and thereafter he was asked as to whether he would like to be searched in presence of any Gazetted Officer or Magistrate or not and he exercised option to be searched at the spot in presence of the witness. P.W. 2 Manoj Kumar Das, S.I. of Entally P.S. requested some members of the public to be witnesses to the seizure. Accordingly, P.W. 1, P.W. 3 and P.W. 4 reached at the spot and in their presence the search as well as the seizure was conducted.

P.W. 2 Monoj Kumar Das also requested the Officer-in-Charge, who was the Gazetted Officer to remain present at the time of search. P.W. 2 gave his identity and also offered his personal search to the witnesses as well as to the accused and thereafter conducted the search of the accused in presence of the witnesses and found 5 gms. of brown powder (suspected to be herein) kept inside a match-box which was wrapped by a polythene paper. The Appellant was then wearing a shirt which was also seized. The P.W. 2 then prepared the seizure list in presence of the witnesses who were present at the spot and collected their signatures on the packet seized from the person of the accused/Appellant. On the following day, namely, October 14, 1993 he forwarded the Appellant as well as filed an application before the learned Special Court for disposal of the seized articles and after colour of the investigation he placed the Chargesheet against the Appellant.

In course of trial, prosecution examined 6 witnesses out of which P.W. 1 Jaydeb Mitra, P.W. 3 Sanjoy Banerjee and P.W. 4 Dr. Binod Kumar are said to be the seizure witnesses from the public. P.W. 2 Monoj Kumar Das, S.I. of Police and P.W. 5 Saroj Kumar Bhattacharjee was the Officer-in-Charge of Entally Police Station. P.W. 6 was the Chemical Analyst. The learned Special Judge after appraisal of the evidence was, however, inclined to convict the accused and sentenced him as stated above.

Mr. Basu, learned advocate appearing for the Appellant has highlighted that in this case, apart from the evidence of P.W. 2 there has been no independent corroboration as regards the seizure of contraband articles from the possession of the Appellant. It has been submitted that P.W. 1, P.W. 3 and P.W. 4 are the seizure witnesses and their testimony does not help the prosecution to bring him the charge to the accused. While we make reappraisal of the evidence of P.W. 1, we noticed that he deposed that the police had shown him a match-box containing a small plastic packet and the said match-box had been seized from the said apprehended person. Therefore, it has not transpired that in fact he had seen the recovery from the Appellant. He even could not identify the Appellant in court.

The learned Additional Public prosecutor Mr. Moitra has invited our attention that in so far as the identity of the Appellant in Court is concerned, it might be quite possible that the witness could not have remembered after a lapse of about 5 years from the date of seizure till date of his examination in court. It is true, that it is unlikely to remember the physical feature of the person after such long lapse of time. But, while considering the intrinsic value of the evidence, we noticed that he does not support the prosecution case, inasmuch as he claimed to have signed in the Seizure List on being requested by the police. But he disowned the seizure of the alleged contraband article from the possession of the accused.

Therefore, his evidence, in fact, does not help the prosecution. P.W. 3 also in similar way has stated that on October 13, 1993 at about 2-30 P.M. he went to the Chinese Burial Ground on seeing assembly of large number of persons and at that time a police officer stated to him that he recovered brown sugar from some person but that brown sugar had not been shown to him. He also disowned to have recognised the Appellant in court. He further stated to have subscribed his signature on a blank paper at the request of the police officer.

Therefore, in this situation, the testimony of this witness does not help the prosecution nor the prosecution had declared him hostile and sought permission to cross-examine the witness. It is true, that he put his signature on the alleged seizure list while it was not filled in. P.W. 4 Dr. Binod Kumar too has not supported the prosecution story. He also stated in court during Examination-in-Chief that the police officer had shown one small packet to him containing some powder and stated that it was recovered from the possession of the person so apprehended. He was unable to identify the Appellant in court. Therefore, the recovery as claimed by the prosecution that it was made from the Appellant has not been proved through P.W. 1, P. Ws. 3 and 4.

Turning to the evidence of P.W. 2 who was the S.I. attached to Entally P.S., we find that he claimed to have gone to the Chinese Burial Ground at about 1-30 p.m. on October 13, 1993. He further stated that he apprised the Appellant if he wanted to be searched in presence of a Gazetted Officer or Magistrate, in could be done accordingly. But the Appellant declined to be searched in presence of any Gazetted Officer or the Magistrate. But, however, agreed that the search might be conducted in presence of the local witnesses.

Accordingly, search was made and in consequence whereof seizure was also made from the possession of the Appellant. But, we found from the evidence of the other prosecution witnesses to the seizure, such fact has not been proved. P.W. 5 who was the Officer-in-Charge of Entally Police Station at the relevant time has also not supported the version of P.W. 2 as to the factum of right offered to the Appellant to be searched in presence of any Gazetted officer.

Therefore, we are left only with the evidence of P.W. 2 as regards the recovery of the alleged contraband articles from the possession of the Appellant. Since none of the prosecution witnesses to the seizure has supported the case of the prosecution as to recovery, it is risky and hazardous only to rely to the evidence of P.W. 2 and on such basis convict the Appellant.

Mr. Basu, learned advocate appearing for the Appellant has relied upon a judgment in the case of Bhola Ram Kushwaha v. State of Madhya Pradesh 2000 S.C.W. 4120 wherein it has been held as follows:

Learned Counsel appearing for the Appellant submitted that as both the witnesses who were stated to be independent witnesses have turned hostile, the trial Court should have acquitted the accused. We are not impressed with such a general submission. In order to satisfy ourselves we have perused the statements of all the prosecution witnesses and ascertained as to whether their testimonies inspire confidence for not holding the Appellant guilty of the offence for which he has been convicted and sentenced;

Upon analysis of the evidence led in the case and finding glaring discrepancies in the statements of the prosecution witnesses we feel that the prosecution has failed to prove its case against the Appellant beyond all reasonable doubts. In all material particulars P.W. 4 stands contradicted by P. Ws. 1 and 2 who are admittedly the Panch witnesses. The prosecution also failed to associate three constables who accompanied S.N. Tripathi (P.W. 4) as the witnesses. The trial Court appears to have emitted to note the glaring contradictions in the testimony of prosecution witnesses. P.W. 4 in his testimony in the court submitted that:

...he received the information that accused Bholaram Kushwaha was having brown sugar in the pocket of his trouser. He recorded that information in the Sanha, That is Ex. P/13.

We found that there are glaring discrepancies in the statements of the seizure witnesses, so also the P.W. 2 who had drawn the F.I.R. against the Appellant. In view of the inconsistent and discrepant evidence between P. Ws. 1, 3 and 4 we, therefore, do not fell it safe to place reliance on the sole testimony of P.W. 2 which remain uncorroborated. It is true, that the contraband articles was sent to the State Drug Control and Research Laboratory and accordingly an opinion was sent that the packet was containing contraband articles such as herein.

But, since the factum of recovery and seizure had not been established by the prosecution that it was recovered from the Appellant and on a close reading of the judgment of learned Special Judge there has been no discussion with regard to the intrinsic value of the evidence of P. Ws. 1, 3 and 4 as we have discussed in our observation. Therefore, in the aforesaid situation we disagree with the observation of the learned Special Judge and hereby acquit the Appellant from the charges. Accordingly, the accused be set at liberty forthwith and the seized contraband articles be disposed of in accordance with law by the competent authority.

The appeal is accordingly allowed and conviction and sentence passed hereunder are hereby set aside.

Malay Kumar Basu, J.

I agree.