Fulchand Sheikh vs State Of West Bengal Ors.

Joymalya Bagchi, J.

The appeal is directed against the judgement and order dated 17th December, 2013 and 18th December, 2013 passed by the learned Judge, Special

Court under the NDPS Act, Nadia in NDPS Case No.24 of 2012 convicting the appellant for commission of offence punishable under Section 21(c)

of the Narcotic Drugs and Psychotropic Substances Act and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of

Rs.1,00,000/-, in default, to suffer further simple imprisonment for one year.

The prosecution case as alleged against the appellant is to the effect that on 20.08.2012 at 16.15 hrs., a secret information was received by P.W. 5-

S.I. Avijit Biswas, that a person shall be travelling on a motor cycle down N.H.34 carrying narcotic substance. The said information was diarized as

G.D. Entry No.637 dated 20.8.2012 and such information was transmitted to O.C., Kaliganj Police Station and C.I., Nakashipara. Thereafter, S.I.

Avijit Biswas left for the spot to work out the information at 16.35 hrs. The police party laid ambush at Mira Bazar R.O.P. Around 16.50 hrs, a person

was seen coming in a red Honda Shine motor cycle and after being identified by the source, P.W.5 and others surrounded the person. He disclosed his

identity as the appellant. A nylon bag was found hanging on the left side handle of the motor cycle. He admitted that there was 500 grams heroin

wrapped in the polythene inside the bag. He requested O.C., Kaliganj Police Station to arrange for Magistrate for effecting search. As it was EID

festival, Magistrate was not available. C.I, Nakashipara being a Gazetted Officer came to the spot at 17.35 hrs. for the search of the accused person.

Thereafter, the accused person was given an option to search a raiding party, which he refused. He admitted that he dealt with different narcotics and

was carrying on heroin towards Lalgola-Murshidabad. As per direction of C.I. Nakashipara, S.I., Avijit Biswas searched the Nylon bag and recovered

one plastic pouch wrapped in white paper and elastic rubber band containing blackish powder which was heroin as stated by the appellant. He also

searched the basket of the motor cycle but there was nothing in the basket of the motor cycle. Upon weighing, the plastic bag containing heroin was

found 305 grams. 10 grams of heroin was extracted from the packet and labelled as Ext.-A1. Another 10 grams was also labelled as second sample

and marked as Ext.-A2. Seizure and labelling was done in front of the local people and the police party.

Most of the public denied signing on the seizure list fearing their lives as the accused person was a known anti-social. Pursuant to search and seizure,

the seized articles along with the accused was brought to Kaliganj Police Station and the written complaint of P.W. 5, S.I. Avijit Biswas, being

Kaliganj Police Station Case No.560 dated 20.08.2012 under Section 21 of the NDPS Act was registered. Sample was sent for chemical examination

and on receipt of the chemical examiner’s report, charge sheet was filed against the appellant under Section 21(c) of the NDPS Act. Charge was

framed under the aforesaid provision of law. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined six

witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the

trial Judge by the impugned judgement and order dated 17th December, 2013 and 18th December, 2013 convicted and sentenced the appellant, as

aforesaid.

Mr. Chakraborty, learned Advocate appearing for the appellant argued that the seizure in the instant case has not been proved beyond the reasonable

doubt. Independent witness P.W. 1 has not supported the seizure. He also submitted that option under Section 50 of the NDPS Act had not been

given to the accused person. Mere presence of Gazetted Officer does not absolve the raiding party from the obligation on making an offer in terms of

the aforesaid provision of law. He also submitted that the link evidence relating to the preservation of the narcotic substance and despatch the same to

the chemical examiner for examination has also not been established. He accordingly prayed for acquittal of the appellant.

On the other hand, Mr. Sanjoy Bardhan along with Ms. Trina Mitra, learned Advocates appearing for the State argued that the seizure of the narcotic

substance was not from the person of the accused appellant. It was seized from a nylon bag which was hanging from the handle of the motor cycle.

Hence, the search was in terms of Section 43 of the NDPS Act and not under Section 50 thereof. He also submitted that the members of the raiding

party have proved the seizure of contraband from the possession of the appellant and the chemical examiner’s report shows that it contained

heroin. Hence, the appeal is liable to be dismissed.

P.W. 5, S.I. Avijit Biswas is the leader of the raiding party. He deposed that on 20.08.2012, he was posted at Mira R.O.P. as in-charge. On that day,

on receiving source information that one person was travelling on a motor bike down N.H.34 carrying narcotic substance, he diarized the information

as G.D. entry No.637 dated 20.8.2012 at 16.15 hrs. He informed C.I., Nakashipara and O.C., Kaliganj Police Station and proceeded to the spot and

laid ambush near Mira Bazar in the evening. They found one person coming in a ‘Red Honda Shine’ motor cycle. He was identified by the

source. They surrounded the said person. There was a nylon bag hanging on the handle of the motor cycle. On being asked, the person admitted that

the bag contained heroin. C.I., Nakashipara came to the spot.

As the incident occurred on the day of ‘EID’, the attendance of the Executive Magistrate during search could not be ensured. Search and

seizure was conducted in the presence of C.I., Nakashipara. The narcotic substance was weighed in a Electronic weighing machine and found to be

305 grams. Two samples of 10 grams each were taken from the seized article. They were seized under a seizure list marked Ext.-1/3. The witness

identified the bag containing the seized contraband as well as material Ext.-1. He also identified the label on the said article material Ext.-1/3. The said

seized contraband along with the accused was brought to Kaliganj Police Station. He lodged written complaint marked Ext.-3. In cross-examination,

he stated that the entire process was completed at 7.30 P.M. Thereafter, they returned to the Police Station. He had not prepared the weightment

chart. He admitted that the weight of sample was 5.5 grams in chemical examination report.

P.W. 2, Sisir Kumar Saha, was posted as C.I. at Nakashipara. On 20.08.2012 receiving information from P.W. 5, he went to Plassey bazar more. He

found that P.W. 5 and others had detained one person. On interrogation, he disclosed his identity. Heroin was seized under a seizure list. He signed

the seizure list Ext.-1/1. Before search he gave option to the accused to search the members of the raiding party. On weightment the heroin was

found to be 305 grams. He identified the seized ‘alamat’ material Ext.-1.

The accused along with the seized ‘alamat’ was produced in the Police Station. S.I., Avijit Biswas had lodged written complaint on the Police

Station. In cross-examination, he stated that the distance of his office from Mira R.O.P. was about 23 to 24 kilometres. He did not diarize his

movement in the General Diary. Place of Occurrence. is a thickly populated area. There are many shops and 200 to 500 people were present at that

time.

P.W. 3, Constable Binod Behari Das was posted at Mira R.O.P. On 20.8.2012 he accompanied S.I., Avijit Biswas and went to Plassey bazar more

and one person with small packet containing blackish powder was detained. C.I. Nakashipara was present at the spot. The person disclosed his

identity. The seized substance was found to be heroin and the same was seized as per seizure list. He signed on the seizure list. The weight of the

heroin was 305 grams. He identified the seized ‘alamat’ material in court Ext.-1. He identified his signature on the label of material Ext.-1/2.

S.I. Avijit Biswas lodged written complaint at the Police Station.

P.W. 4, ASI Gobinda Sundar Halder was another member of the raiding party. He had corroborated the evidence along with P.W.s 2, 3 and 5 herein.

P.W. 1, Tanmay Chatterjee, was the independent witness to the seizure. He admitted his signature on the seizure list Ext.-1. He stated that police had

asked him to sign on the document at Mira Bazar when police recovered some articles. He signed on the seizure list. He had also admitted that his

signature on the seized ‘alamat’. He was cross-examined at length with regard to his earlier statement during investigation. P.W. 6, S.I. Kousik

Kumar Show, is the Investigating Officer in the instant case. He deposed that he visited the place of occurrence and drew sketch map with Index

Ext.-4. He received seized articles and interrogated the appellant. He collected chemical report Ext.-5 and submitted charge sheet.

From the aforesaid evidence on record, particularly that of P.W.s 2, 3, 4 and 5, it is clear that on secret information received by P.W. 5 which was

diarized as G.D. Entry No.637, a raid was conducted at Mira bazar. Around 16.50 hrs, a person was seen coming on a red Honda Shine motor cycle.

He was identified by the source and the police party surrounded him. A nylon bag was found hanging on the left side handle of the motor cycle. On

interrogation, he disclosed his identity and also admitted that he was carrying heroin in the nylon bag. At this juncture, P.W. 5 requested the O.C.,

Kaliganj Police

Station to arrange for a Magistrate or a Gazetted Officer for the search. As Executive Magistrate was not available due to EID ceremony, P.W. 2

C.I., Nakashipara came to the spot as a Gazetted Officer. He gave an option to the appellant to search the members of the raiding party. Thereafter,

the nylon bag of the appellant was searched and a plastic packet was recovered containing blackish material suspected to be heroin. Upon

weightment, the weight of heroin was found to be 305 grams. Two samples were drawn from the seized articles. Articles as well as samples were

seized, sealed and labelled by P.W. 5. Thereafter the seized articles, along with the appellant were taken to the police station. Sample was sent for

chemical examination and chemical examiner’s report marked as Ext.â€"5 showed that the seized article contained heroin.

From the aforesaid facts, it appears that the seizure of the contraband was not from the ‘person’ of the appellant but from a nylon bag hanging

from the handle of his motorcycle. It is settled law that seizure from a bag hanging from the handle of a vehicle cannot be said to be so intrinsically

connected with the body of the suspect that it would attract the prerequisites envisaged under Section 50 of the NDPS Act relating to search of the

person of the suspect. The contraband in the instant case was recovered from a nylon bag which was hanging from the handle of the motor cycle in a

public place. Hence, the search in the instant case was to be conducted in terms of Section 43 of the NDPS Act and Section 50 is not attracted in the

factual matrix of the case. Coming to the issue that the independent witnesses has not supported the prosecution case, I note that the said witnesses

had, in fact, admitted he signed on the seizure list as well as on the label of the seized sample at the place of occurrence. In the First Information

Report it is alleged that the appellant was a well-known anti-social of the locality and the local witnesses were unwilling to sign the seizure list as they

were afraid of their lives.

In view of the aforesaid circumstances, I am inclined to rely on the consistent version of the official witnesses and I am of the firm belief that P.W. 1

had not deposed to the correct state of affairs relating to the seizure of the contraband from the appellant as he had been won over. However, P.W. 1

admitted his presence at the place of occurrence and his signature on contemporaneous documents i.e. seizure list and label pasted on the seized

alamat. P.W. 1 was extensively cross-examined and it is clear that he had resiled from his earlier statement during trial.

I also note that there was no cross-examination of the Investigating Office with regard to the alleged breach in the live link between the seized alamat

and the sample sent to the chemical examiner for examination. Variation in the weight of the sample as noted in the chemical examiner’s report

(Ext.-5) does not militate against the prosecution case as it is evident from the said report that the seals on the sample which was received for

examination were intact. Hence, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. Conviction and

sentence imposed upon the appellant are upheld.

Period of detention undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon

him in terms of section 428 Cr.P.C. Appeal is, accordingly, dismissed. Let a copy of this judgment along with the lower court records be sent down to

the trial court at once. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of

putting in the requisites.