Kalosona Garai vs State of West Bengal

Debasish Kar Gupta, J.—This appeal is preferred against the judgment and order of conviction dated May 26, 2008 and sentence dated May 29, 2008 passed by the Ld. Special Judge, N.D.P.S. Act, 1st Court, Suri, Birbhum. By virtue of the impugned judgment and order of conviction the appellant was found guilty of committing an offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The appellant was sentenced to suffer rigorous imprisonment for 15 (fifteen) years and pay a fine of Rs. 1,50,000/- and in default to suffer additional simple imprisonment for 15 (fifteen) months for the above offence. The detention of the appellant in judicial custody was directed to be set off from the period of sentence imposed against him. The case of the prosecution is discussed in a nutshell as under:--

"Sri Priyabrata Bakshi, Sub-Inspector of Police Station at P.S. Dubrajpur, District -Birbhum, at the material point of time, received an information on March 11, 2006 at about 00.50 hrs with regard to unloading of ''Ganja'' from a lorry parked at Milikpara Football Ground, Dubrajpur. He recorded the above information in G.D.E. No. 509 dated March 11, 2006. Thereafter, informing his superior officers as also sending a requisition to Sri Suman Poddar, Joint Block Development Officer, Shyampur - (i) Development Block, Howrah, he went to the place of occurrence on the basis of the above informations. He was accompanied by Ansuman Dutta, Assistant Sub-Inspector, PW 2, two constables, one person from N.V.F."

After reaching the place of occurrence at 01.25 hrs. he found in the light of the police jeep that some persons had been unloading black packets from the backside of a lorry bearing registration No. P.B.-02/H 9631. The above police party managed to detain the appellant. A notice was served upon the appellant to inform him of the intention of searching him stating reasons therefor.

After arrival of the above Gazetted Officer at the place of occurrence, the appellant and the above lorry were searched. Ten packets of "Ganja" were recovered from the appellant and eleven more packets of "Ganja" were recovered from backside of the above lorry.

After weighment of the above articles, measurement chart, seizure list and two samples of seized articles signed by witnesses were prepared. The total weight of twenty-one packets was 313.250 kg. (net). The weight of each packets was 15 kg. (approximately). Signature of the appellant was obtained on the weighment chart.

According to me evidence of PW 1, the raiding team came back to Dubrajpur, Police Station. Thereafter, PW 1 lodged the formal First Information Report (Suo Motu) to initiate Dubrajpur, P.S. Case No. 21/06 dated March 11, 2006 under Section 20(a)(ii) under NDPS Act, 1985 against the appellant recording the above fact in G.D.E. No. 534 at 14.25 hrs. on March 11, 2006.

After investigation the police submitted charge-sheet No. 38/06 dated July 8, 2006 against the appellant under Section 20(b)(ii) of the NDPS Act. After taking into consideration the documentary and oral evidences as also the statement of the appellant recorded under the provisions of Section 313 of Cr.P.C. the impugned judgment and order of conviction dated May 26, 2005 and sentence dated May 29, 2005 were passed.

It is submitted by Mr. Milon Kumar Mukherjee, Ld. Senior Advocate appearing on behalf of the appellant, that the above search and seizure were not conducted by the respondents complying with the provisions of law for the following reasons:

"(i) According to the materials on record, the raiding team headed by the PW 1, reached the place of occurrence at 01.25 hrs. According, to the arrest memorandum, the time and date of arrest of the appellant was 03.45 hrs. on March 11, 2006. But the F.I.R. was lodged at 14.25 hrs on March 11, 2006.

(ii) Exhibit No. 1/a was the G.D.E. No. 509 dated March 11, 2006 which did not contain the fact of receiving the information of unloading of ''Ganja'' at the place of occurrence.

(iii) According to seizure list the weight of each of the packets of ''Ganja'' was 15 kgs. (approximately). According to the evidence of the PW 1 ten packets of ''Ganja'', the weight of each packet being 15 kg., were recovered from the possession of the appellant and eleven packets of "Ganja" were recovered from lorry. But according to the evidence of the Gazetted Officer concerned (PW 6), no packet of "Ganja" was recovered from the non police person (appellant). That apart, a person cannot carry ten packets of 15 kg. each. In view of the above, the seizure of "Ganja" was not proved.

(iv) According to the evidence of the PW 6, he went to the place of the occurrence without informing the Block Development Officer concerned. No written information was sent to the Block Development Officer concerned after the raid. No official paper was produced by PW 6 in support of his presence at the time of the raid. The PW 6 deposed in course of cross-examination that he had not put his signature on the packets of seized ''Ganja'', or on the packets containing the sample of the same or on me seizure list as part of his official duty. He signed the seizure list without putting official seal below his signature. In view of the above, the provisions of Sections 42 and 50 of NDPS Act, 1985 were not complied with.

(v) The seized articles, as also the seizure list did not contain signature of any local and/or independent witness. Those contains signatures of PW 4 (constable No. 966 of the concerned P.S. and P.W 6, the Joint Block Development Officer concerned).

(vi) The weighment machine, which had purportedly been used for measuring the quantity of ''Ganja'' and its samples thereof, were not produced before the Court. There was discrepancy with regard to the weight of ''Ganja'' contained in the packet of sample as mentioned in the seizure list and in the report of the expert authority."

According to Mr. Mukherjee, the prosecution failed to establish the commission of offence by the appellant in accordance with the provisions of Sections 42 and 50 of the NDPS Act, 1985 read with Section 27 of the Indian Evidence Act.

It is submitted by Mr. Sabyasachi Banerjee, Ld. State Advocate, that presence of the appellant at the place of occurrence at the material point of time was proved not only from the evidences of the prosecution witnesses but also from the statements of appellant recorded under the provisions of Section 313 , Cr.P.C. The above fact was also corroborated by DW1. Our attention is further drawn towards the evidence adduced by PW 5 to show that he was declared hostile.

Our attentions are drawn towards the communication of PW 1 dated March 11, 2006 addressed to PW 6 to show that PW 6 was requested to be present at the place of occurrence during search and seizure. According to him, the seized articles as also the seizure list were proved in accordance with law. According to him, absence of local and/or independent witness made no difference in view of corroboration of the evidences adduced by the prosecution witnesses.

We have heard the submissions made by the learned Counsels appearing on behalf of the parties at length and we have considered the facts and circumstances of this case on the basis of the material on record for adjudication of propriety of the impugned judgment and order of conviction and sentence.

With regard to the submissions made on behalf of the appellant that considering the time of reaching of the raiding team at the place of occurrence for conducting search and seizure, preparation of seizure list and lodging of formal FIR, we find that the Learned Court below took into consideration that the time of receiving information of unloading contraband article was 00.50 hrs. on March 11, 2006; the time of diarizing that information before proceeding to the place of occurrence was 14.25 hrs. as recorded in G.D.E. No. 509 dated March 11, 2006; the period of search and preparation of seizure list was from 02.15 to 03.45 hrs. on March 11, 2006; the time of arrest of the appellant was 03.45 hrs. on March 11, 2006 and the time of lodging formal FIR was 03.45 hrs. But the Learned Court below did not take into consideration that the time of lodging the formal FIR was 14.25 hrs. on March 11, 2006 as mentioned therein. Therefore, the above decision making of the learned court below cannot be sustained in law.

After perusal of the lower Court records, we find that the G.D.E. No. 509 dated March 10, 2006 (Ext. 1) and G.D.E. No. 534 dated March 11, 2006 (Ext. 8) were returned back keeping photostat copies of the same. From the photostat copies of the above documentary evidences, it appears that G.D.E. No. 509 dated March 11, 2006 was prepared only for recording the information of returning back to the police station. The G.D.E. No. 534 dated March 11, 2006 was the formal FIR lodged at 14.25 hrs. Therefore, decision making process of the Learned Trial Court in ignoring the above discrepancy is not sustainable in law.

It is the settled principle of law that corroboration of evidence of a witness is required when the evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorized in three categories, i.e. unreliable, partly reliable and wholly reliable. In a case in which a witness is wholly reliable, no corroboration is necessary but in case of partly reliable witness, the Court should seek corroboration in material particulars from other evidence.

Reliance may be placed to the decision of C.M. Sharma Vs. State of A.P. Th. I.P., and the relevant portion of the above decision is quoted below:

"18. Further, corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorized in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary........"

According to the seizure list, twenty-one packets "Ganja" (weight of each packet being 15 kg. approximately) were seized. According to the evidence of PW 1, the leader of the raiding team, ten packets were recovered from the possession of the appellant and remaining eleven packets were recovered from the lorry out the aforesaid twenty-one packets. But according to PW 6, who was the Gazetted Officer present at the time of search and seizure in this case and arrest of the appellant, no packet containing contraband article was recovered from the possession of the appellant. According to the seizure list, the total weight of the aforesaid packets was 313.250 kgs. We find no observation with regard to either reasonability or absurdity of carrying ten packets of contraband articles by the appellant of 15 kg. weight each in the impugned judgment (the total weight was 150 kg. approximately). The deposition of PW 1, in course of his cross-examination, that ten packets of contraband articles were recovered from the possession of the appellant in view of keeping his hand on those packets lying on the ground, cannot be accepted in the eye of law. The Learned Court below did not take care of such discrepancy in the impugned judgement. We are of the opinion, it was not a minor discrepancy. The above discrepancy should not have been ignored by the Learned Court below in view of the settled proposition of law as discussed hereinabove.

We find substance in the submissions made on behalf of the appellant that the above decision making process of the learned Trial Court cannot be sustained in law due to non-consideration of the aforesaid relevant factors.

While considering the dispute raised by the appellant with regard to the presence of the Gazetted Officer (PW 6) at the place of occurrence at the material point of time, we do not find any observation made in the impugned judgment with regard to failure of PW6 to produce the written information which had been send to him by PW 1 for his presence in the place of occurrence at the material point of time or to become seizure witness without using his official seal below his signature, though it was not a part of his official duty as deposed by him in course of cross-examining him.

The question of validity of the procedure followed for packing and sealing the seized articles and preparation of seizure list in absence of local and/or independent witness as also correctness of the weight of the seized article for non-production of weighment machine before the learned Court below have become academic issues in this case in view of the observations made hereinabove in respect of other issues involved in this matter. Be that as it may, the proposition of law is this, guilt of an accused may be proved relying upon the evidences of official and/or interested witnesses, provided, there is no discrepancy of those evidences with other documentary or oral evidence.

Regarding the non-production of weighment machine on the basis of which the weight of seized "Ganja" was recorded, we are of the opinion that the production and exhibiting the same in connection with the case is required in case of contradiction of vital evidences.

In view of the above the impugned judgment, order of conviction and sentence are quashed and set aside. This appeal is allowed. The appellant is acquitted.

The appellant will be set at liberty forthwith, if he is not required to be detained in any other case.

Let the Lower Court''s records be sent back to the learned Court below forthwith. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.