Chandan Yadav and Others vs State of West Bengal

Indrajit Chatterjee, J.—This appeal has been preferred as against the judgement and order of conviction both dated 12-03-2014 as passed by the Learned Special Judge, 4th Court, Alipore, in S.T. No. 07(6) of 2012 (S.C. No. 01(5) 2012) in which the learned Trial Court was pleased to decide that both the accused appellants had committed the offence punishable under Section 20(b)(II)(b) of the N.D.P.S. Act and both the appellants were convicted and sentenced to suffer rigorous imprisonment for four years and further directed to pay fine of Rs. 10,000/- each, in default to suffer simple imprisonment for further two months. The learned Trial Court further proceeded to say that no set off be allowed because of the bar under Section 32A of the said Act.

The case before the floor of the Trial Court which is necessary for appreciation of the appeal can be stated in brief thus: -

"That one complaint was received by the Inspector-in-Charge of South Port Police Station, Calcutta, giving rise to that P.S. Case No. 77 dated 27-02-2012 disclosing an offence under Section 20(b)(II)(b) read with Section 29 of the said Act."

The complainant was one Kalyan Chatterjee, one S.I. of M.T.S/D.D., Lalbazar. In the complaint it was disclosed that he received one source information that some ''Ganja Sellers'' would be coming from South Port Police Station area for selling ''Ganja''. He observed all formalities and took instruction from his superiors and thereafter, he went to that place, that is 9, Bhukailash Road along with the raiding team which consisted of S.I, Sujoy Dutta of M.T.S./D.D (P.W.3).

They reached the place of incident at about 2-30 p.m. with all materials of Narcotic kits and started watching at Remount Road. At about 3-15 p.m. the source pointed out that two young men were coming forward from East to West direction and they were intercepted near 9, Bhukailash Road. Many persons gathered there seeing the incident and the raiding party collected two persons out of that crowd. Those two persons saw the incident and agreed to be the prosecution witnesses. They were Jishan Ali @ Danish and Asgar Ali. Jishan Ali was examined as P.W.7. Asgar Ali, however, did not depose. The raiding party disclosed their identity. The accused-persons also disclosed their names. They were served with a written option as to their legal right to opt in whose presence they want to be searched i.e. before the learned Magistrate or a Gazetted Officer. Both the appellants/detainees opted to be searched in presence of a Gazetted Officer. The Superior Officer was informed at Lalbazar to send one Gazetted Officer at the spot to complete the search and seizure and thereafter, Sujit Pal (P.W 2), Additional Officer-in-Charge of South Port Police Station arrived at the spot at about 4-35 hours and introduced himself to be detainees as well as to the witnesses and also disclosed his identity as a Gazetted Officer. Thereafter, P.W 2 served written note to both the detainees and the detainees agreed to be searched in his presence. The search was made under the direct supervision of that Gazetted Officer. Accused, Sarwan Yadav, i.e. appellant No. 2, had one cream colour cotton shopper bag which he was holding in his right hand very tightly and on opening the said bag, a black colour polythene packet came out and from it a substance was recovered alleged to be ''Ganja'' weighting about 3 1/2 kgs. On further search Rs. 150/- came out from the right side pocket of the said appellant.

The other appellant who disclosed his name as Chandan Yadav was also searched and a similar type of bag was also found on the right hand of the said appellant containing one black colour polythene packet from which also 3 1/2 Kgs. of Ganja were found and on further search of Rs. 110/- was found in the right side pocket of the trouser of the said appellant. Samples were drawn, articles were labelled, sealed and packed. Seizure list was drawn up. Both the appellants failed to render any satisfactory explanation for possession of such Ganja and as such, the FIR was lodged.

After the registration of the case, the case was investigated by S.I, S.K. Roychowdhury of the D.D, Lalbazar (P.W.8). Samples were forwarded to the Chemical Examiners, the I.O. collected the report, examined witnesses, rough sketch map was drawn up with index and after investigation, the said I.O. submitted charge sheet against both the accused persons under Section 20(b)(II)(b) of the Act. It may be mentioned that the accused appellants are in jail custody since they were arrested.

Charge was framed against both the accused persons under Section 20(b)(II)(b) of the N.D.P.S. Act which was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The defence did not make out any positive case and pleaded usual plea of innocence. Both the accused persons were examined under Section 313 of the Cr.P.C. No D.W. was adduced.

The prosecution examined in all 8 witnesses. P.W.1 was the de facto complainant, P.W.2 was the Gazetted Officer, P.W.3 was a member of the raiding party, P.W.4 prepared the sketch map of the P.O., P.W.5 was a formal witness being the recording officer, P.W.6 was the Chemical Examiner, P.W.7 was the public witness and P.W.8 was the I.O. of this case. I have already said the result of this trial.

On behalf of the defence, it was submitted by Mr. Gupta, learned Advocate appearing for the appellants, that the G.D. Entry No. 3215 dated 27.02.2012 referred to in the formal FIR was not produced before the trial court. He contended that the defence is entitled to get the benefit of such non-production of the said G.D. Entry being the earliest piece of evidence in the hand of the police. He took me to the FIR to show that in the FIR, it was written that the accused persons were coming to supply ''Ganja'' and as per the FIR, the complainant informed the A.C.D.D. (I) regarding his movement to the place of the incident. He further took me to the evidence of the P.W.2, i.e. the Gazetted Officer who witnessed the search that he failed to recollect whether he took permission of the D.C. (Port). He also attacked the fixing of the place of occurrence by the prosecution. He submitted that as per the prosecution, it was the Remount Road but as per the sketch map, it was 9, Bhukailash Road. He also attacked the evidence on record by taking me to the sketch map to show that actually 9, Bhukailash Road runs from north to south and Remount runs from east to west but both the I.Os. and P.W.1 deposed that Remount Road runs from north to south. In the instant case, the sketch map was prepared by P.W.4 and there is no iota of evidence that when this sketch map was prepared by the said witness, the informant, i.e., the de facto complainant was present to give him the suitable instruction where actually the incident took place. On scrutiny of the sketch map, it appears that the house No. 9, Bhukailash Road is just on the crossing of the Bhukailash Road and Remount Road. It is true that Remount Road runs from east to west and Bhukailash Road runs from north to south. Thus, this court is satisfied that this point cannot get any special attention of this court particularly when as per seizure list the place of occurrence has been fixed as the crossing of Bhukailash Road and Remount Road. I shall discuss the matter later on. This P.W.4 categorically deposed that he drew the sketch map as disclosed by the Officer-in-Charge, Planned Making Section. Thus, this court is not going to rely too much on the sketch map. It is the settled principle of law that a sketch map being the result of an enquiry cannot get precedent over the eyewitnesses.

Learned Advocate also attacked the FIR vis-�-vis the evidence of the P.Ws. as regards the timings of apprehension of the accused. He took me to the FIR to show that as per the FIR at 15.15 hours the source pointed out the accused persons but in the evidence of P.W.1 (page 12 of the paper book), the said witness deposed that we intercepted the accused at about 4.00 p.m. Thus, it was the version of defence that this gap of 45 minutes is fatal to the prosecution.

Learned Counsel also attacked the non-production of the two bags allegedly seized from each of the accused persons. He further argued that when the bags were not produced, then the accused persons are entitled to get the advantage of Section 50 of the NDPS Act.

Learned Counsel took me to the evidence of P.Ws. 1,2,3 and 7 as regards one contradiction regarding the gathering of crowd etc. at the place of occurrence. He submitted that P.W.1 deposed that a large crowd gathered, that P.W. 2 deposed that 2 or 3 police men gathered, that P.W.3 deposed that small crowd gathered and P.W.7 deposed that there was a gathering. I admit that it is the evidence on record but the Learned Counsel tried to make mole out of a mountain and such contradiction cannot be reaped in favour of the defence. Learned Counsel also attacked the evidence of the sole public witness, i.e., Jishan Ali as when he was examined his name was written on the deposition sheet as Ishan Ali but his father''s name as noted in the seizure list as well as in the FIR duly matched. He further submitted that another seizure list witness, Asgar Ali was not examined by the prosecution even though he signed on the seizure list in block letters. He also submitted that the writing of the name of Asgar Ali in block letters cannot be treated as his signature.

He took me to the evidence of P.W.1 to show that in the complaint, he duly mentioned that the written notice was given to the accused persons as per the provision of the NDPS Act but in his evidence, P.W.1 did not say regarding the details of such notice. The notice as contemplated by the defence was under Section 50 of the NDPS Act. I shall come to this point, regarding the application of that section, in the instant appeal later on when this court will be considering the law points.

Learned Counsel, appearing for the defence by taking me to the evidence of P.W.6 and drew my attention that this Chemical Examiner got 126 gm and 130 gm of Ganja in two packets whereas as per seizure list in two packets 100 gm each of seized articles were kept separately. Thus, he submitted that wherefrom the Chemical Examiner got such .26 gm and .30 gm of Ganja extra. He submitted that the defence is entitled to get the benefit on this score.

As regards the notice point as contemplated under Section 50 of the N.D.P.S. Act, it was the argument of defence counsel that the prosecution story differed in between the complaint, the evidence of P.W.1 and the evidence of P.W.2. He took me to the complaint to show that as per this complaint, the accused persons agreed to be searched by a Gazetted Officer and as per the complaint written notice was served informing their legal right to be searched by a Gazetted Officer. He also took me to the evidence of P.W.1 on this point, who deposed that notice was served on the accused as to whether they want to be searched. Regarding the evidence of P.W.2, he deposed that as per the evidence of that witness he served only two options to the detained persons and nothing more.

He further drew my attention to the fact that the two bags which were allegedly seized by the raiding party was not produced before the court and the benefit of the non-production will certainly go in favour of the defence.

Regarding the contradiction in between the evidence of P.W.1 and P.W.3, he submitted that as per the evidence of P.W.1 the source disclosed that some persons will be there to take Ganja whereas P.W.3 deposed that such persons will be there to sell Ganja. But in the complaint, it was written that the source disclosed that those persons will assemble there to supply Ganja. He also submitted by taking me to the evidence of P.W.1 to show that as per his evidence the two young persons could be found at 3-15 p.m. and they were intercepted near 9, Bhukailash Road whereas in the complaint, it was written that those persons were apprehended at 4 p.m. and P.W.3 also deposed that such persons were apprehended at 4 p.m. He submitted, taking the chance of repetition, that why P.W.2 took such a long time to come to the place of occurrence, i.e. at 16.35 hours even though South Port Police Station was not more than 500 yards from the alleged place of incident.

My attention was also drawn by the Learned Counsel regarding the defect in the framing of charge as the learned Trial Court did not mention in the body of the charge that the alleged Ganja was kept hidden in two bags even though the black coloured polythene bags were mentioned in the body of the charge. He further submitted that in place of Rs. 150/- as allegedly seized from the accused persons, Rs. 140/- was written in the body of the charge to have been seized.

Mr. Gupta attacked the evidence of P.W.2 on the ground that it was difficult to fathom as to how he could reach the place of occurrence at about 4-35 p.m. even though the incident took place at about 4-00 p.m. (about which I have already stated). He further submitted that this P.W.2 gave second notice without taking into consideration what was there in the first notice or whether the first notice was issued at all. He also submitted as to why no local people were called even though from the evidence of both P.W.1 and P.W.2 it is evident that the place was more or less densely crowded. He also attacked the evidence of P.W.2 as to why he did not diarize the matter before he departed from the police station on receipt of such information. Learned Counsel further submitted by taking me to the evidence of this witness to show that this witness did not mention as to how such alleged Ganja was weighed and what type of weighing instrument was used. It was further argued by taking me at page 17 of the paper book that this witness was sitting in the court room when P.W.1 was being examined. Regarding the claim of the accused that the accused persons also gave consent in writing that they wanted to be searched in presence of the Gazetted Officer as we get at page 18 of the paper book (internal page No. 11) it was argued by learned Defence Counsel that there is nothing on record to show that the accused persons gave such consent in writing. He further submitted that the accused persons were Hindi speaking people and the prosecution has failed to prove any written notice written in Hindi to get rid of the stipulation in Section 50 of the N.D.P.S. Act.

Regarding the evidence of P.W.3, it was submitted by the learned Counsel that this witness deposed that it was P.W.1 who gave another option to both the accused persons and the accused persons agreed to be searched in presence of the Gazetted Officer. He also submitted that if the evidence is scrutinized, the court may come to this conclusion that several eyewitnesses to the incident were not brought on record to be deposed before the trial court. He further submitted that this witness deposed that some persons will gather at the place of occurrence for the purpose of selling the narcotic drug which is at variance with the evidence of P.W.1 and the complaint marked as Exbt.9. He further submitted that even though P.W.1 sought for permission from his superior to intercept the crime but no document has been filed to prove that aspect.

As regards the evidence of P.W. 6 that is chemical examiner he submitted that in the report he did not make the ingredients of the articles which he examined to come up within the purview of ''Ganja'' as contemplated in S.O. No. 1055 E dated 19.10.2001. He took me to the evidence of P.W. 7 that is the only public witness to say that this public witness was aware that the Police officers were the men of MTS Section and that they were aware that accused persons were having contraband articles. Learned counsel further took me to the evidence of this witness to convince this Court that this witness deposed that he was not aware regarding the contents of the documents and he only signed in English on such document. Even though he was not aware, I repeat, as to the contents of the documents. Thus, he submitted that his witness was not worthy of credit and the learned Trial Court erred in believing him as a truthful witness.

Regarding the non-production of the other public witness Asgar Ali, it was the submission of the learned counsel that the defence is entitled to get the advantage of adverse presumption as contemplated in Section 114(g) of the Evidence Act. He took me to Exbts. 1 and 2 that is the written notices given to the accused persons in English whereas the accused persons were not at all aware regarding english language as they claimed in their examination under Section 313 Cr.P.C. that they do not understand English or Bengali and they only understand Hindi. Thus, it was the submission of the learned counsel that such notices issued under Section 50 of the NDPS Act has no value. He further submitted that the address of P.W. 7 Jishan Ali varied in between his address given in the head-note of the deposition sheet and the Voter Identity Card.

Learned Counsel cited the decision of the Apex Court as reported in Karnail Singh Vs. State of Haryana, , a decision on Section 42 of the NDPS Act. In that case one vehicle was chased and intercepted and the question arose whether the matter was informed to the high-ups.

Learned counsel also cited another decision of the Apex Court as reported in State of Rajasthan Vs. Parmanand and Another, , a decision on Section 50 of the NDPS Act. He also cited another decision of the Apex Court as reported in State of Delhi Vs. Ram Avtar @ Rama, , wherein it was decided in that case that the details of Section 50 of the NDPS Act are to be complied with and that Section 50 is to be substantially complied with by intimating the accused his right to be searched before a Gazetted Officer or Magistrate. It was further held by the Apex Court that recovery made in contravention of Section 50 cannot be made admissible on the basis of oral evidence. In this case there was personal search so conducted on the presence of the accused.

He also cited another decision of the Apex Court as reported in Gian Chand and Others Vs. State of Haryana, wherein the Apex Court held that incriminating material must be put to the accused to provide him an opportunity to contrary the same and further that error or omission in compliance with this provision will vitiate the trial if the accused was prejudiced. As regards the preponderance of probability the existence of culpable state of mind, the learned counsel cited a decision of the Apex Court as reported in Bhola Singh Vs. State of Punjab, wherein the Apex Court held that Section 35 pre-supposes that culpable mental state of accused has to be proved as a fact beyond reasonable doubt, existence of capable mental state of accused cannot be proved by preponderance of probability.

Regarding non-compliance of Section 42 learned counsel cited the decision of the Apex Court as reported in Rajender Singh Vs. State of Haryana, wherein the Apex Court held that non-compliance of Section 42 will make the judgment of the trial Court reversible one. Learned Advocate ended his argument by taking me to the judgment of the learned Trial Court wherein the learned Trial Court observed that evidence of P.W. 7 may be proved as P.W. 7 would identify the accused persons on dock and further held that evidence of all the witnesses were reliable. Thus, it was his submission that the accused persons may be acquitted in respect of the charge as framed against him.

On behalf of the prosecution it was argued by Mr. Sanjoy Bardhan, learned Advocate, that the defence mainly argued on six points:

"1) That there was non-compliance of Section 50 of the N.D.P.S. Act.

2) That there was non-compliance of Section 42 of the said Act.

3) That the prosecution has failed to prove that the accused persons were in conscious possession of Narcotic Substance as contemplated under Section 18 of the said Act.

4) That culpable state of mind of the accused person was not proved.

5) That P.W.7 did not make any statement regarding the detailed search and that other independent witness did not face the dock, and

6) Discrepancies were pointed out by the learned Advocate in between the evidence of prosecution witness on the point of observing legal formalities to make the witnesses unreliable."

It was submitted by Mr. Bardhan, by taking me to the evidence on record, that it was the specific case of the prosecution that 3.5 kg of Ganja were seized from each accused persons which were in two separate bigshopper bags and those bags were in the hands of the accused persons. Thus, he claimed that in such a case, there was no question of compliance of Section 50 of the said Act.

On this point he referred to the following decisions of the Apex Court - 1) Kulwinder Singh and Others Vs. State of Punjab wherein the Apex Court in clear terms held that plea of non-compliance of Section 50 of the Act of 1985 will not apply in a case where 110 bags of contraband poppy husk were seized from a truck. The apex Court further proceeded to say that Section 50 only applies in case of personal search of a person but it is not extended to a search of a vehicle or a container or a bag or premises; 2) Megh Singh Vs. State of Punjab, wherein the Apex Court held that Section 50 only applies in case of personal search of a person, but it is not extended to a search of a vehicle or a container or a bag or premises; 3) State of Himachal Pradesh Vs. Pawan Kumar, wherein also the Apex Court reiterated the same stand and held that a bag, briefcase etc. can under no circumstances be treated as body of a human-being and as such, they cannot even remotely be treated to be part of a human-being. It further proceeded to say that therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act; 4) Mohan Baitha and Others Vs. State of Bihar and Another, wherein the Apex Court reiterated the same principle; 5) Krishan Kumar Vs. State of Haryana, wherein the Apex Court held in a case where accused was carrying bag from where opium was seized that there was no application of Section 50 of the Act of 1985; and 6) Yasihey Yobin and Another Vs. The Department of Customs, Shillong, wherein the Apex Court held in paragraph 10 of that decision that in a case where inextricable connection between search of a person and bag was not established but rather it is only search of bag, the Apex Court held that Section 50 of the Act of 1985 will not apply.

Regarding the point of option being given to the accused, it was argued by Mr. Bardhan by taking me to the decision of the Apex Court as reported in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, wherein the Apex Court held that information regarding the legal right of the accused may not be in prescribed form and even it may not be in writing. He referred to paragraph 24 of that decision.

On this point, he also referred to another decision of the Apex Court as reported in JT 1996(1) 480 (Mohan Lal v. State of Rajasthan) wherein the Apex Court held that there is no duty on the part of the arresting officer to produce the accused to the Magistrate only as per the desire of the accused but the option is with the arresting authority either to produce him before the Magistrate or to the Gazetted Officer but the prime consideration will be who will be ''nearer'' to be produced. He also referred to the decision of the Apex Court as reported in 1996 CRI. L. J. (SC) 1694 which concurred with the decision of the Mohan Lal''s case and held that the accused had no choice in selecting as to whether he be produced before the Magistrate or before the Gazetted Officer.

Regarding Section 42 of the Act of 1985, he submitted that the fact of this case cannot take this court to consider Section 42 of the said Act of 1985 as in this case the seizure was made from a public place and as such, Section 43 of the Act will come into play. On this point, he cited a decision a decision of the Apex Court as reported in Mohan Lal Vs. State of Rajasthan wherein it was specifically held by the Apex Court that where the seizure was made from a public place, then Section 43 of the Act will apply and not Section 42(1) and 42(2) of the Act.

It was submitted by Mr. Bardhan that in that decision, Karnail Singh''s case was distinguished.

As regards the conscious possession of the accused persons as contemplated in Section 18 of the Act in question, it was argued by the learned Prosecutor that the accused persons were holding bags containing 3.5 kg of Ganja each very tightly on their hands as will appear from the evidence and that is enough to conclude that these accused persons were in conscious possession of those articles knowing those to be Ganja (contraband articles). On this point, he referred to the decision of the Apex Court as reported in Kulwinder Singh (Supra) and submitted that the fact of that case can very much match with the present case to indict the accused persons.

As regards Section 35 of the Act regarding the culpability of the offenders, it was submitted by Mr. Bardhan that when the accused persons signed on the seizure list, it can be safely said that the existence of the presumption of culpable mental state was duly proved. He reiterated that if the prosecution case is visualized, then everyone will say that the accused persons had the culpable mental state in that regard as contemplated in Section 35 of the said Act.

Regarding the evidence of Jishan Ali or Ishan Ali (P.W. 7), it was argued by Mr. Bardhan that this witness had witnessed the prosecution case in toto and as such, there is nothing to disbelieve this witness. He further supplemented his argument by saying that the said witness has duly corroborated the other witnesses.

He submitted that the other independent witnesses could not be produced by the prosecution but simply because he was not produced by the prosecution, the entire air of the prosecution cannot be taken out from its sail. He submitted that apart from that witness, the prosecution has examined two detecting officers, i.e. P.W.1 and P.W.3, one Gazetted Officer, i.e. P.W.2 and the Investigating Officer and from their evidence, it will be clear that the prosecution was able to bring home the charge against the accused persons.

Regarding the trustworthiness of the police officer, he cited a case of the Apex Court reported in State, Govt. of NCT of Delhi Vs. Sunil and Another, wherein the Apex Court held that the initial distrust on the police officer was the approach of the British era and it was continuing even after the post-independent years but the time has come now to start placing at least initial trust on the actions and documents made by the police. It was further held that the official acts of police have been regularly performed as a wise principle of presumption and recognized even by the legislature and hence when the police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to the unreliable. The Apex Court further observed that it is difficult to start with a presumption that the police officers are unreliable and their evidence are to be jettisoned on that ground. He also referred to the decision of Jarnail Singh (Supra) (paragraphs 9 and 10) to convince this court that one independent witness if found to be trustworthy is enough to secure conviction in a case. Regarding the minor discrepancies and omissions, it was submitted by Mr. Bardhan that such discrepancies and omissions will make the prosecution story very trustworthy and reliable one tutored witness will depose like a parrot.

It was further argued by Mr. Bardhan by taking me into evidence on record that the prosecution witnesses have corroborated each other on material particulars and there is nothing on record to impeach their credibility. He submitted that the main witnesses of the prosecution are PWs 1, 3 and 7 and PWs 1 and 3 are the eye witnesses to the occurrence, PWs 1 and 3 being the officers in the raiding team and PW 7 was an independent witness to the seizure. He further submitted that PW 2 was the Gazetted Officer in whose presence the seizure was made and PW-8 is the I.O of the case and the other witnesses are formal in nature being the plan maker etc. He submitted that PW 1, 2, 3 and 7 have duly identified the accused appellants, that the seizure list has been duly proved, that the seal and level were found to be intact and identical before the examiner and regarding the search and seizure the learned prosecutor cited the decision of the Apex Court as reported in Khet Singh Vs. Union of India (UOI), wherein the Apex Court held "law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of evidence collected likely to have been tampered with or interpolated during the course of search or seizure, then, it would be said that the evidence is not liable to be admissible in evidence".

In paragraph 17 of that decision the Court was further pleased to hold "In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Custom Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly."

As regards the discrepancy in between the weight of the two envelopes which were forwarded to the expert and the two envelopes which were received from the said authority it was submitted by Mr. Bardhan that it is true that both the envelopes which were forwarded contained materials weighting 100 grms. each and when those two envelopes were returned back such envelopes contained 126 and 130 grms each in weight. He submitted that such extra weight carries no weight. He referred to a Division Bench decision of this Court (unreported CRA No. 82 of 2014 Biswajiit Das and Anr. v. State of West Bengal delivered on 25th June, 2015) wherein such defect also crept in. In that case before the Bench of Justice Debasish Kar Gupta and Justice Mumtaj Khan, the packets were forwarded to the expert packets of 100 grms each but when those were returned back it became 123 grms, 121 grms and 124 grms and it was held by the Division Bench in internal page No. 17 that such discrepancy will not affect the merit of the case.

Regarding the discrepancy as regards the words ''taking, selling and supplying as used by PW 1 and PW 3 in their evidence and PW-1 in the complaint it was submitted by Mr. Bardhan that Section 20 is enough to cover all these as taking, selling and supplying are almost the same side of coin which has been taken care of by that section of the Act of 1985.

As to why the local witnesses were not called as argued by Mr. Gupta, the learned Advocate appearing on behalf of the defence it was submitted by Mr. Bardhan that as PW-7 and one Asgar Ali (not examined) agreed to be witnesses naturally the raiding party did not think it necessary to call other witnesses. As regards the argument of Mr. Gupta that the accused persons were not conversant with Bengali language. Mr. Bardhan took me to the 313 examination sheet what accused persons to show that the accused persons categorically stated that they were conversant with Bengali language.

Regarding the other argument of the defence that as to why the first I.O. of this case was stripped off is posted and why the same was entrusted to PW-8 was one internal matter and he has no answer to this.

Regarding the S.O. No. 1055(E) dated 19th October, 2001, it was submitted by Mr. Bardhan that ''Ganja'' being a leaf is not a component and as such in the chemical report there was no question of mentioning in the report the derivatives of ''Ganja", it being not a manufactured drug.

In reply, it was submitted by Mr. Gupta, learned Advocate for the appellant by taking me to the evidence on record to show that it was a perfect case in which Section 50 of the NDPS Act will apply and he sticked to the decision of Paramananda (supra). Regarding the decision of Ram Abatar (supra) as referred to by his counterpart, Mr. Gupta submitted that the accused has every right to know his legal right and he has also right to choose whether to be searched before a Gazetted Officer or before a Magistrate but at the same time he submitted that this decision of Ramabtar relates to personal search.

As regards the application under Section 43 of the Act, it was argued by Mr. Gupta that Section 43 will not apply in the instant case even if it is read conjointly with other sections like Sections 41 and 42 of the Act. Regarding the non-production of the bags, he submitted that as the bags were not produced, prosecution cannot say that the contraband articles were not kept in the bags only. Thus, he tried to convince this court that the accused persons are entitled to get benefit of doubt in this case.

Regarding the applicability of Section 42 , I have already answered that the facts and circumstances of this case will show that Section 42 will not apply in the present case. I discard the argument of the defence that Section 43 of the Act in question cannot apply in the present case. This court is at one with Mr. Bardhan that in this case Section 43 of the said Act will apply as in this case the search was conducted in public place.

I have taken into consideration the decisions cited by the learned Lawyers appearing on behalf of the parties and also taken into consideration the argument put forward by the learned Advocates. Regarding the argument of the defence as regards non-production of the GD entries, this Court is of the opinion that had those GD Entries been produced that could have given more flavour to the prosecution story but non-production cannot be that fatal to set aside the prosecution story.

Regarding the argument of the defence as to the place of occurrence. I am to say that his court is satisfied that the place of occurrence was the crossing of Remount Road and Bhukailash Road and it was duly fixed. PW 4 was made aware at the time of drawing of the map of the Place of Occurrence by PW 8.

Regarding the argument of the defence as to the time gap that is 4 p.m, 3.45 p.m. or 4.35 p.m. also cannot have any bearing in the present case considering the total evidence on record. Regarding the dispute as regards the name of Jishan Ali and Ishan Ali or as regards the address of that Jishan Ali vis-�-vis the V.I. Card and heading of deposition sheet I am of the opinion that all these cannot be said to be material and as such argument of the defence is not worthy of credit. As regards the non-examination of Ajgar Ali, this court is of the option that it is prerogative of the prosecution which witness is to be examined. When Asgar Ali has been examined it cannot be guesses that the signature appearing on the seizure list was not the signature of the said man.

On scrutiny of the PWs 1 and 3 that is the two vital witness as of this case as regards search, this court is of the opinion that they are truthful witnesses and duly withstood the test of cross-examination. The claim of the defence that PW 3 arrived at the place of incident either too early or to late is not convincing to this Court.

It is the positive evidence of P.W.2 that he came to the place of occurrence at 4:35 pm why should I discarded his evidence without any other positive evidence to contradict him.

Regarding the defect in framing of the charge as claimed by the defence this Court is satisfied that even though there was any defect in framing of charge, it is curable defect under Sections 215 and 464 of the Cr. P.C.

It was argued on behalf of the defence that how the article examined by the chemical examiner became 126 and 130 gms. even though when the packets were forwarded such packets contained 100 gms. On this point this Court can give protection to the prosecution in view of the judgment of the Division Bench of this Court as passed in Biswajit Das (supra).

Regarding the claim of the defence that the Bengali language was ''a Greek'' is bellied from the examination of the accused persons under Section 313 Cr.P.C. wherein they perfectly claimed that they can very well understand the Bengali language. The defence tried to impeach credibility of P.W.7 but on reading and re-reading his evidence I am satisfied that he duly proved and supported the prosecution case. The claim of the defence that he is a stock witness of police has not been established through his evidence.

Regarding the state of mind of the accused persons as contemplated under Sections 18 and 35 of the Act of 1985. This Court on the facts and circumstances of this case can safely say that the accused persons were in possession of such contravened articles knowing the nature and contents of such articles. The evidence of the P.Ws. are there to prove that when they were apprehended the accused persons were holding big shopper bags tightly on their hands. It is true that both the big shopper bags were not produced but that cannot take out the entire air from the sail of the prosecution boat. It was not difficult for a prosecuting agency like Kolkata Police to bring from market such two big shoppers bags to be marked as Material Exhibit. The contradictions which the learned trial court noted are minor contradictions and cannot reach to the root of the case.

Now the question is whether in this case the decision of the Apex Court in Paramananda (supra) will apply or not. There are other decisions of the Apex Court to the contrary like Kulwinder Singh (supra), Megh Singh (supra), and Pawan Kumar (supra) on this point Karnail Singh (supra), Jarnail Singh (supra) and Yasihey Yobin (supra) and this Court likes to walk with those decisions of the Apex Court on the same point. Thus, on the facts and circumstances of this case this Court can say that it was not a case of personal search to attract Section 50 of the Act of 1985.

As regards the application of Section 42 of the said Act this Court on reading and reading the said section is of the opinion that Section 42 was introduced by the legislature regarding the search of premises, vessels, containers etc., and not for personal search. This being the decision of the Apex Court as passed in Karnail Singh (supra) cannot be applicable in the present case.

I have gone through the examination sheet of the accused persons recorded under Section 313 Cr.P.C. The accused person duly answer the questions put by the court and this court is not alone with the defence that the accused persons were prejudiced when they were examined under Section 313 Cr.P.C. The decision of the Apex Court in Gian Chand (supra) will not apply in the present case. It is true that no local man was cited by the prosecution as a witness to the seizure but this court cannot ignore the fact that two public witnesses were cited as witnesses in the seizure list. The argument of the defence on the notice point has no bearing with this case as this case cannot be treated as personal search to attract the right of the accused to get one notice before being sentenced. ''Ganja'' being a leaf is not a competent and as such in the chemical report, the chemical examiner did not mention that derogative of ''Ganja'' and as such S.O No. 1055 (E) dated 19th October, 2001 cannot apply in the present case.

Regarding the outstar first I.O as claimed by the defence I am also at one with Mr. Bardhan that it was an internal matter of the police administration and court should poke its nose as regards the investigation of this case particularly at the stage of appeal. This court in view of the decision of the Apex Court in Government of NCT, Delhi v. Sunil can very much rely upon the evidence three police personnel that is the PWs 1, 2 and 3 who are the vital witnesses of this prosecution case.

This Court in view of evidence on record is satisfied that the place of occurrence is rightly described in the map. It is immaterial whether one witness deposed that Bhukailash Road runs from east to west or whether it runs from north to south. Thus, the PO has not been shifted in that instant case. Ganja being one leaf cannot have its derivatives to be mentioned in the report in the chemical examiner and as such the circular of the Government as pointed of the defence will not apply in the present case.

This court is not unmindful of the fact that the learned Trial Court to get set off new Section 32A of the NDPS Act. This matter is to be disposed by this Court in this appeal.

This court is not unmindful of the decision of the Apex Court reported in Dadu @ Tulsidas Vs. State of Maharashtra, , a three Judge Bench decision of the Apex Court (Dadu @ Talsidas v. State of Maharashtra with Jiti v. Union of India) wherein in paragraph Nos. 26 and 27 of the judgment, a portion of Section 32A was held to be unconstitutional to the extent it was affecting the functioning of criminal courts in the country but the entire section was not declared ultra vires.

In paragraph 27, the court held that everything is to be judged as per the parameter of Section 37 of the Act of 1985 and the court has every power to order set off of the substantive sentence under Section 428 of the Cr.P.C. Thus, the Act of 1985 cannot be a bar to this. I may note here that the ''Ganja'' seized from the accused persons was in total 7 Kgs and as such it was not the commercial quantity. Section 37 the said Act of 1985 cannot be a bar in view of the fact that as per Section 37(1)(B) of the said Act covers offences punishable under Sections 19 , 24 or 27A and also for offences involving commercial quantity.

Thus, in view of the discussion made above this Court is satisfied that the learned Trial Court duly convicted the accused persons in respect of the charge under Section 20(B)(II)(B) of the NDPS Act. The conviction and sentence passed by the trial court are both affirmed.

But, this court is not in agreement with the learned trial court that the accused persons were not entitled to get set off. In view of the discussion made above this court is satisfied that the accused/appellants are entitled to get set off under Section 428 of the Cr.P.C.

Both the accused-appellants were released on bail as per order of this Court on 05-09-2014 passed in CRAN No. 3343 of 2014. Both the appellants are directed to surrender before the learned Trial Court, I repeat the Special Judge, 4th Court, Alipore, within forty-five days from this date to serve out the remaining part of the substantive sentence and to pay the fine amount, if they so desire, in default, they will have to serve the further sentence as imposed by the learned Trial Court in lieu of that fine amount.

The learned Trial Court while issuing the jail warrant will write in it that the accused persons are entitled to get set off and also the fact since which date the accused persons remained in custody. As submitted by the defence the accused persons remained in custody from 28th February, 2012 and were released on bail only after 05-09-2014.

Failure to surrender within the stipulated time will entitle the learned Trial Court to issue warrant of arrest as against both the accused persons and to start proceedings against the sureties under Section 446 of the Cr.P.C. It may be noted that the liability of the sureties, who stood as the sureties for the accused persons following the order of this Court as passed in CRAN No. 3343 of 2014 will continue till forty-five days from this day and if the accused persons surrender by that time they will be discharged from the suretyship.

The trial court is directed to inform the Correctional Home Authority that the accused/appellants are entitled to get set off.

Thus, the appeal is allowed only with a partial modification as regards the set off to which the accused persons are entitled.

The seized ''Ganja'' be disposed of in presence of the Officer-in-Charge of Southport Police Station after taking due caution that such ''Ganja'' may not be recycled. The Indian Currency Notes as seized from the accused persons be confiscated to the State as the accused persons did not claim such money to be their own money.

This order regarding disposal of property will come into force only after the period of appeal is over.

The department is directed to transmit a copy of this judgment along with the lower court records to the learned trial court for necessary action on its part at an early date.

There will be no order as to costs.

Certified copy of this judgment be given to the parties as per rules.