Khokan Shil vs The State of Tripura

S. Talapatra, J.—This is an appeal under Section 374(2) of the Cr.P.C. by the convict, hereafter referred to as the appellant, questioning the judgment of conviction dated 16.08.2013 delivered in case No. Special 17 of 2012 by the Special Judge, West Tripura, Agartala, No. 5. By the said judgment, the appellant has been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short the NDPS Act. As consequence of that conviction, the appellant has been sentenced to suffer rigorous imprisonment for a period of 10(ten) years for committing the offence punishable under Section 20(b)(ii)(C) of the NDPS Act along with fine of Rs. 1,00,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 2(two) years.

The genesis of the prosecution is rooted in the written ejahar filed by one Nanigopal Biswas, Deputy Superintendent of Police (Enforcement Branch) on 07.05.2012 disclosing that he had received a secret information in respect of storing warehousing of huge quantity of dry Ganja (cannabis) illegally in the house of one Khokan Shil, the appellant herein, at Rajatilla, Kamalasagar under Bishalgar police station. Accordingly, he brought the matter to the notice of Superintendent of Police (Enforcement Branch) for his appropriate order. As per the direction of the S.P., Enforcement Branch, the informant along with some officers and staffs from Enforcement Branch first reported to the Kamalasagar outpost and entered the fact in the General Diary vide KMP OP GDE No. 129 dated 07.05.2012. Thereafter, they proceeded towards Rajatilla along with one Sub-Inspector of police of that outpost namely, Jiban Sen Roy. The house of the appellant as per the said ejahar was shown by the secret source. Thereafter, they cordoned the house of the appellant and conducted search in presence of two independent witnesses. During the search, they recovered 37 Kgs. of Ganja containing in two numbers of plastic drums and two numbers of plastic bags which were concealed in the dwelling hut of the appellant. At the time of search, the appellant was found absent from his house. The search continued from 12.05 hours to 12.40 hours. It has been further alleged in the written ejahar that from the local inquiry, it was revealed that the appellant was involved in storing of dry Ganja in his dwelling house illegally and violating the provisions of Section 8 of the NDPS Act. It has been stated further that the informant seized the dry Ganja in presence of the witnesses after preparing the seizure list, sealed the same by gala (the sealing wax) at spot and took in the custody of the Enforcement Branch.

In terms of the said written ejahar, Bishalgar Police Station Case No. 80 of 2012 under Section 20(b)(ii)(C) of the NDPS Act was registered and taken up for investigation. On completion of the investigation, the police filed the final report charge-sheeting the appellant. On taking cognizance, the charge was framed against the appellant under Section 20(b)(ii)(C) of the NDPS Act by the Special Judge, West Tripura, Agartala, No. 5 but the said charge was denied by the appellant and he pleaded innocence and claimed to face the trial.

In order to substantiate the charge, the prosecution adduced as many as 7(seven) witnesses including the informant, Nani Gopal Biswas (PW-6) and Sri Sanjit Sen, the Investigating Officer (PW-7). In addition to the oral evidence, the prosecution also introduced as many as 17(five) documentary evidence (Exbts. 1 to 17) including the seizure list, GD extract and the report of the Forensic Science Laboratory. Thereafter, the appellant was examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials surfaced in the evidence. The appellant denied those materials and repeated his plea of innocence. Thereafter, by the impugned judgment, the appellant has been convicted for warehousing of dry Ganja in violation of the provisions of Section 8 of the NDPS Act which is punishable under Section 20(b)(ii)(C) of the NDPS Act.

Mr. A. Bhowmik, learned counsel appearing for the appellant has questioned the impugned judgment of conviction contending that there was serious breach in the procedure, as followed by the seizing officer and thereafter, by the investigating officer. According to Mr. Bhowmik, learned counsel for the appellant, initially there was a breach of the provisions of Section 42 of the NDPS Act as there is no record demonstrating that the so called secret information was of such nature that the officer empowered by the Central Government or the State Government had reasons to believe the veracity of that information by the secret source. He has further submitted that there is serious breach of the provisions of Section 52(3)(a) of the NDPS Act. Mr. Bhowmik, learned counsel has emphatically submitted that breach that has taken place in following the procedure as laid down in Section 52(a)(2) of the NDPS Act is of such nature that it cannot be casually brushed aside. The entire process is tainted and made open to manipulation and as such, the appellant''s right of fair investigation has been seriously jeopardized. In support of his contention, he has referred the Constitutional Bench decision of the apex court in Karnail Singh Vs. State of Haryana, , where the apex court has creased out the apparent difference between two decisions of the same court namely, Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, and Sajan Abraham Vs. State of Kerala, . In the former decision, it had been held by the apex court that compliance of Section 42 of the NDPS Act is mandatory and failure to take the information in writing and reporting it to his immediate superior officer in writing would cause prejudice to the accused whereas in the latter case, it had been held that compliance of Section 42 of the said Act was not necessarily mandatory and substantial compliance was sufficient. It has been held in Karnail Singh vs. State of Haryana that if the information is received when the police officer in the police station with sufficient time to take action and if the police officer fails to record it in writing and if after reducing it in writing fails to send a copy thereof to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly where the police officer does not record the information at all and does not inform the official superior at all, then also it will be clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question fact to be decided in each case.

Mr. Bhowmik, learned counsel has succinctly submitted that the prosecution has utterly failed to establish the seizure from the residence of the appellant as both the independent seizure witnesses and other independent witnesses, except the official witnesses did not support the prosecution case and they were declared hostile. But in the cross-examination even they did not deviate.

From the other side, Mr. R.C. Debnath, learned Addl. P.P. appearing for the State has categorically submitted that there had been substantial compliance of Section 42 of the NDPS Act. PW-6, Nani Gopal Biswas when received the information from the secret source on 07.05.2012, he informed the S.P. (Enforcement Branch) in writing (part of Exbt. 13 series) of the ''credible'' information and sought permission for immediate raid. The S.P. (Enforcement Branch) on the same date permitted PW-6 to conduct raid in the house of the appellant with the available staff of the Enforcement Branch and to take necessary action after raid observing all legal formalities. The said order dated 07.05.2012 is part of Exbt. 13 series. Thereafter, by making a GD entry, he proceeded for the raid and successfully seized the narcotic substances as stated. As such, there was no breach of Section 42 of the NDPS Act. Mr. Debnath, learned Addl. P.P. has further contended that after seizure in presence of the witnesses the seized materials were sealed and marked and those were brought first to the Bishalgarh Police Station but since there was no storing facility those were brought to the office of the Enforcement Branch. Subsequently, PW-7 re-seized those materials and thereafter, prepared the inventory on 12.05.2012 and sent the inventory with the seized materials for certification by the Sub-Divisional Judicial Magistrate, Bishalgarh. The certification by the SDJM, Bishalgarh is part of Exbt. 15 series. After the inventory was found correct, samples were drawn for sending to the State Forensic Science Laboratory. The samples were sent to the SFSL for chemical examination and indisputably the report of the SFSL has clearly shown ''positive for presence of Ganja''.

From the submissions as made by the learned counsel for the parties, it appears that the points that fall substantially for consideration are that:

(i) Whether there is substantive compliance of Section 42 , Section 52(2)(a) and Section 52(3)(a) of the NDPS Act? and

(ii) Whether there is any evidence of worth to show that the narcotic substance as seized was seized from the possession of the appellant?

Before we answer those questions, it would be appropriate to make a fresh survey of the evidence. According to the prosecution''s case, PWs-1 and 2 were the independent witnesses at the time of seizure. PW-4 was also a witness to the seizure from the residence of the appellant. All the PWs-1, 2 & 4 did not support the prosecution case. Thus, the prosecution case sought to be founded on the testimonies of PW-3, Sri Niranjan Giri, one Assistant Sub-Inspector of Police who accompanied PW-6 at time of search and seizure. He is also a seizure witness. But he did not state anything that house of the appellant was known to him before hand. On the contrary, he has admitted in the cross-examination that he did not see any document that the house belonged to the appellant. Even he has stated that the boundary of the house was not known to him. He has further stated that no signature was taken on the label on the seized alamat. He made a serious revelation in the following term:

"From there we went to the Bishalgarh PS and the DSP lodged a complaint. The seized materials were brought to the Enforcement Branch Malkhana at AD Nagar and was kept there. On 09.05.2012 at the office of the Enforcement Branch SI, Sanjit Sen re-seized the earlier seized materials in my presence and my signature was obtained in the seizure list."

Nowhere PW-3 has stated that the seizing officer PW-6 has placed seal and mark on the seized materials at the place of seizure.

PW-5, Sri Binod Debbarma was present at the time of seizure but his signature was not taken on the seizure list. He did not reveal anything of material importance except that PW-6 made a GD entry in Kamalasagar outpost. As a result, the testimony of PW-5 is of least importance.

PW-6, the seizing officer namely, Nani Gopal Biswas has stated that on 07.05.2012 when he was posted as the Dy. Superintendent of Police (Enforcement Branch), Agartala in the morning he received a secret information from his source that the appellant had stored huge Ganja at his house at Rajatilla under Bishalgarh Police Station. He informed the SP (Enforcement Branch) and he was directed by the SP (Enforcement Branch) to conduct the raid. Accordingly, after making a GD entry vide No. 29 on the very same day i.e. 07.05.2012 in the said police outpost he raided the house of Khoka Shil ''as was identified by the source''. According to PW-6, the room of the appellant was identified by his father. They found there huge quantity of Ganja stored in two plastic drums and two plastic bags. Those were weighed and seized on preparing the seizure list. According to him, he sealed the container and two plastic bags by sealing wax. Thereafter, he has stated as under:

"As there was no arrangement for keeping the seized materials at Bishalgarh PS I brought the same to the Malkhana of the Enforcement Branch at AD Nagar and kept the same there. These are the plastic drums and bags (already marked MO. 1 series). Signatures of the independent witnesses were taken on the seized alamat."

He has admitted in the cross-examination that he did not mention to the police officer that having identified by the father of the appellant they spotted the room of the appellant. He has also admitted in the cross-examination that he did not seize any document to the effect that the house was owned by Khokan Shil. He has also stated that the he did not mention the name of the seizure witness to the investigating officer.

PW-7, Sanjit Sen has stated that having been entrusted with the investigation on 09.05.2012 he re-seized the materials from the in-charge of Malkhana of Enforcement Branch A.D. Nagar preparing the seizure list. Thereafter he carried out the investigation and recorded the statements of Jhutan Saha and Makhan Saha. It is to be noted that Bapan Saha was not produced by the prosecution for examination in the trial. He seized the communication made by PW-6 and the SP (Enforcement Branch) dated 07.05.2012. On 12.05.2012, he prepared the inventory and the copy of that was sent to the SDJM, Bishalgarh. On 12.05.2012 in presence of the SDJM, Bishalgarh samples were drawn from the seized materials and the sample was sent to the SFSL. After having the report received from the SFSL, he submitted the charge-sheet.

In the cross-examination, he has admitted that he did not verify from the Tehsil whether the house where the raid had taken place belonged to the appellant. He has further admitted that he did not seize any document as to the ownership of that house. He has candidly admitted that he did not examine the inhabitant of the nearby houses as they were relative of the appellant.

Having scrutinized the seizure list, authored by PWs-6 & 7, this Court does not find that there is any note by the seizing officials that the seized materials were sealed by wax. In this perspective, this Court having appreciated all the evidences is of the view that since the communications between PW-6 and SP (Enforcement Branch) were not questioned at the time of their admission there was substantial compliance of Section 42 of the NDPS Act. There is no apparent violation of Section 52A(2) of the NDPS Act as the inventory was prepared by PW-7 and that inventory was sent for certification in terms of Section 52A(2)(a) of the said Act. Even the samples were drawn up in presence of the SDJM, Bishalgarh. But at the time of preparing the inventory no witness was there. Apart that, except the statement of PW-6 regarding sealing nobody has corroborated that. Rather PW-3 who is also a seizure witness has categorically stated that in his presence there was no sealing. As already indicated, both the seizure lists (Exbts. 1 & 6) do not contain any note either to the effect that the seized materials were sealed or those were found in sealed condition. As such, the integrity of the inventory process cannot be held beyond suspicion. So far the compliance of Section 52(2) read with Section 52(3) of the NDPS Act is concerned, it appears that after the seizure, the seizing officer approached the police station but the seized materials were not stored there. But those were stored in the Malkhana of Enforcement Branch. This Court tends to believe that Malkhana is under the control of the officer empowered under Section 52 of the NDPS Act. As such, there is apparent compliance of Section 52(2) of the NDPS Act. However, this Court is of the view that the seized materials ought to have been forwarded to the Magistrate without delay. Those materials were forwarded to the Magistrate on 12.05.2012 whereas the seizure had taken place on 07.05.2012.

There is no evidence at all either documentary or oral that the narcotic substances as seized were seized from the possession or from the house of the appellant. PW-6 has categorically stated that the house was identified by the source person. The independent witnesses turned against the prosecution case and as such, there is no legal material or evidence to show that the warehousing was made by the appellant. As such, in the considered view of this Court, the appellant is entitled to get benefit of this.

Having observed thus, the impugned judgment and order are interfered with and set aside. The appellant is acquitted from the charge on benefit of doubt. He shall be released forthwith, if not wanted in any other case.

In the result, the appeal stands allowed. If the seized materials are not destroyed as yet, those shall be destroyed forthwith.

Send down the LCRs.