Haridas Gope alias Lalan vs The State of West Bengal

This appeal is directed against the judgment and order of conviction dated December, 14, 2010 and sentence dated December, 15, 2010 thereby convicting the appellant for commission of offence punishable under Section 20(c) read with Section 17 (c) of the Narcotic Drugs and psychotropic Substance Act (hereinafter referred to as NDPS Act) and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine or Rs. 1 lakh in default to suffer further rigorous imprisonment for one year. The period of detention undergone was directed to be set off under Section 428 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.).

The prosecution case, in brief, is that on March 12, 2009 at 16.05 hours one secret source information was received by P.W.7 that huge quantity of opium would be dispatched at the bus stand of Panchra More on March 13, 2009 in between 17.15 hours and 18.30 hours by the appellant. Accordingly, on March 13, 2009 at 08.00 hours P.W.7 along with force went there. At about 17.45 hours they noticed the appellant coming from the local village carrying one yellow plastic bag. On being identified by the source, they surrounded the appellant at Panchra More and two passers by namely P.W.1 and P.W.2 were called. P.W.7 then informed the appellant as to whether he intends to be searched by any Magistrate or Gazetted Officer and tried to contact local BDO or any Gazetted Officer but failed. P.W.7, then himself searched the appellant and during search he found one yellow colour nylon bag in the right hand of the appellant containing 13 kg. of opium and one mobile phone. P.W.7 then seized those articles in presence of the appellant and the witnesses, took samples of 50 gms. each in two separate envelops and thereafter packed, sealed and labeled the same in presence of witnesses and arrested the appellant and lodged the compliant. On the basis of above complaint a Khayrasole P.S. Case No. 12 of 09 dated March 13, 2009 was started against the appellant under Section 17(c)/18(b) of the NDPS Act and the case was endorsed to P.W.9 for investigation who thereafter of completion of investigation submitted charge sheet against the appellant on May 22, 2009 under Section 17(c)/18(b) of the NDPS Act.

On December 3, 2009 charge was framed under Section 22(c) read with Section 17(c) of the NDPS Act and after the appellant denied his involvement in the crime, trial commenced.

Prosecution examined 9 witnesses and also produced and proved the FIR, seizure list, rough sketch map with index, analysis report etc and thereafter on completion of trial and after examination of the appellant under Section 313 Cr.P.C. learned trial judge passed the impugned judgment.

Mr. Sekhar Basu, ld. Senior advocate appearing for the appellant submitted that the judgment, order of conviction and sentence are not sustainable in law as there was a doubt with regard to the place of occurrence and contradictions in the statements of prosecution witnesses in this regard. Search and seizure of the alleged opium from the possession of the appellant was not proved beyond doubt, not a single independent witness supported the case of the prosecution and there was a total suppression about the identity of the witnesses who were reported to be independent. Malkhana register was not produced to show that the sample kept there after seizure and before sending the same for analysis was properly in sealed condition. Doubt with regard to sending of contraband seized article for chemical examination as the letter for examination of the contraband article was issued from CID(Ext.11) whereas analyst report (Ext.12) shows the same was sent from O/C, Khayrasole P.S. through Judicial Magistrate though the order sheet shows that the Judicial Magistrate had specifically stated that he has no jurisdiction to pass any order to that effect and lastly appellant has been prejudiced as he was charged for the commission of the offence under Section 22(c) read with Section 17(c) but he was convicted for the commission of the offence under Section 20(c) read with Section 17(c) of the NDPS Act though no such charge was framed under Section 20(c) of the NDPS Act.

According Mr. Basu, ld. Court below did not take into consideration the above aspect of the matter in passing the impugned judgment, order of conviction and sentence.

Mr. Basu relied upon the decisions in the matter of State of Rajasthan Vs. Gurmail Singh reported in (2005) 3 SCC 59 and in the matter of Bishnu Sarkar Vs. The State of West Bengal reported in (2017) 1 C Cr LR (Cal) 457 in support of his submissions.

Mr. Ranabir Roy Chowdhury, ld. Advocate representing the state submitted that date, time, place of seizure and the person from whom seized was proved beyond doubt and the alleged contradictions in between Ext. 11 and Ext. 12 with regard to the sending of the sample for analysis is not sustainable as no objection was raised when the documents were exhibited. According to Mr. Roy Chowdhury, the alleged contradictions were not major in nature affecting the prosecution case.

We have considered the submissions advanced by the learned counsels appearing for the respective parties and gone through the materials on record to examine the propriety of the impugned judgment, order of conviction and sentence passed by the ld. Trial judge.

The learned Court below took into consideration the evidences of P.W.7 (complainant), P.W.4, P.W.5, P.W.6 and P.W.8, police personnel, besides the evidences of the P.W.1 and P.W.2, witnesses to the search and seizure of ''opium'' as also the chemical analysis report (Ext.12) to arrive at the conclusion that prosecution has been able to prove the charge against the appellant beyond all reasonable doubt.

The instant case relates to recovery and seizure of the contraband article (Opium) from the bag found in possession of the appellant. It appears from Ext.3/4 that the seizure of the alleged contraband article (opium) was shown to have been made on March 13, 2009 in between 18.15 hours and 18.45 hours at the Panchra More under Khoyrasole in presence of witnesses Jayanto Mondal (P.W.1) and Rathin Das (P.W.2) reported to be passersby. But from the evidence of the above witnesses it was evident that they were neither passer by nor the local people rather they were men of the local P.S. working as driver and khalasi there. P.W.1 though identified his signatures on the seizure list and labels but stated that he signed on those papers at the Khirasole P.S. as per instruction of police officer. Similarly P.W.2 also stated that he put his LTIs. on some papers at the Khirasole P.S. but can''t say why his LTIs. were taken. Non of the above so called local witnesses supported the prosecution story with regard to the reported recovery of opium from the possession of the appellant. Besides the above witnesses, P.W.4, P.W.5, P.W.6 and P.W.8, also claimed that they too were members of the raiding party and witnessed the search and seizure of alleged contraband articles. They all are the police personnel attached to the CID West Bengal, Bhawani Bhawan.

It is true that there is no absolute rule that depositions of police officials cannot be relied on but at the same time it is also equally true that non examination of the independent witnesses in spite of their availability raises eye brow. From the evidence of P.W.4 as also P.W.5 it was evident that there were shops and local people assembled there. This had been clearly admitted by P.W.8. But they were not called to become witness to the alleged search and seizure nor any reason was assigned for the same. From the memo of arrest, it was evident that appellant was apprehended in presence of one Madhu Ghosh but that person was not also examined by the prosecution.

However, from the evidence of the above police witnesses, it was evident that they have given different versions with regard to the place of occurrence. According to P.W.5, there was a statue and some shops near the P.O. bus stand. P.W.8 also claimed that there were some shops near the P.O. besides railway track and Bhimgarh railway station. But P.W.9 denied the same and stated that he did not find any shop room or house near the P.O. and as such it was not shown in the sketch map. On the otherhand, P.W.6 could not recollect whether there was any shop near the P.O. According to P.W.4 they noticed the appellant near the statue of Vivekananda whereas according to P.W.8 they noticed the appellant near the statue of Netaji. On being asked by the defence, both P.W.6 and P.W.7 could not say whether P.O. was a junction or four point crossing though according to P.W.8, Panchra More is a three point crossing. All these raises doubt with regard to their presence at the time and place of alleged occurrence.

There is no denying fact that it is for the prosecution to decide whom to examine and how many witnesses they consider it proper to examine to prove their case against the accused person. But it is the duty of the court to see whether the evidence adduced by the prosecution was sufficient to warrant conviction of the appellant. In the instant case, as it appears, a shadow of doubt had been cast about the trustworthiness of the evidence of police personnel, P.W.4, P.W.5, P.W.6 and P.W.8, and their presence at the alleged place of occurrence on the relevant date and time and the reported local witnesses have not supported the prosecution case. Even P.W.7, the defacto-complainant, who apprehended the appellant and reportedly recovered opium from his possession failed to identify the appellant on dock in course of his examination before court.

The reported seizure of opium was made on March 13, 2009 and the case was endorsed to P.W.9 for investigation who reportedly sent the sample for Analysis vide challan dated March 14, 2009 (Ext.11) which was received there on March 16, 2009. Ext.11 shows that sample in question was sent to the Director, State Drug Control and Research Laboratory by P.W.9, CID officer, Narcotic Cell, for analysis. The report of the Government Analyst dated April 21, 2009 (Ext.12) shows that the same was sent by the Officerin- charge Khyrasol P.S. through Judicial Magistrate, Dubrajpur, Birbhum though the ordersheet dated March 14, 2009 shows that the learned Judicial Magistrate, Dubrajpur did not entertain the case at all on the ground of jurisdiction in the matter and directed for production of the accused before the learned Judge having jurisdiction in the matter. Though, no evidence was adduced where those seized articles were kept after seizure and before receipt of the same at the office of the Senior Scientific Officer, State Drug Control and Research Laboratory but from the chargesheet it appears that the seized alamats were kept at Khyrasole P.S. Malkhana. No Malkhana register was produced nor Malkhana-in-charge was examined to show that the alamat in question were properly sealed, packed and labelled when received in the Malkhana nor any explanation was offered to that effect.

We further find that appellant was charged for the commission of the offence under Section 22(c) read with Section 17(c) of the NDPS Act but he was convicted for the commission of the offence under Section 20(c) read with Section 17(c) of the NDPS Act though no such charge under Section 20(c) of the NDPS Act was framed against the appellant. We also find that learned Trial Judge while convicting the appellant took into consideration the report of the State Drug Control and Research Laboratory (Ext.12) where Analyst opined that the sample contained ''Heroin along with residual Opium'' but surprisingly no such question with regard to the said report was put to the appellant during his examination under Section 313 Cr.P.C. It is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution case can not be relied on for the purpose of recording the conviction of the accused. In the case at hand, thus we find that no such opportunity was given to the appellant thereby depriving him from offering any explanation to that effect.

Therefore, taking into account the entire circumstances and loopholes in the prosecution case, we are clear in our mind that the impugned judgement, order of conviction and sentence can not be sustained in law and the appeal deserves to be allowed. Accordingly, the appeal is allowed and the impugned judgement, order of conviction and sentence are quashed and set aside. The appellant is directed to be set at liberty forthwith, unless his detention is required in connection with any other case.

Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties, on priority basis, upon compliance with the necessary formalities in this regard.