TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 1700
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....of detention undergone by the convicted was directed to be set off accordingly. Seized Narcotics, the Motor Bike Being No. WB-26-E-4938 being the conveyance used to carry the said narcotics, the seized currency of Rs. 14,850/- presumed to be the sale proceeds of illicit business of narcotics, the seized mobile phone were also directed to be confiscated to state as per the provision of the NDPS Act after the period of appeal is over. The prosecution case to put in brief is that acting on specific information which was duly reduced in writing and after obtaining proper movement order, batch of officers and staff including Lady Sepoy of NCB, EZU, Kolkata left the NCB office and proceeded to Bongaon at 19:30 hours on 05.04.2009 and reached at Chandpara at 1:00 hours on 06.04.2009 and halted there. Thereafter, from 10:00 hours on 06.04.2009, the NCB team ambushed on NH-34 near Bongaon Rail gate no.1. At about 15:00 hours on 06.04.2009, the NCB team noticed a person coming towards Bongaon from Chandpara side by riding on a Yamaha Motor Cycle. Since there was a specific information that the said person was carrying huge quantity of heroine, the person was stopped on NH-34 at Subhaspal....
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.... Saimuddin of Lalgola, Murshidabad supplied the said received Heroine/derivative of opium to him. Thereafter a notice under Section 67 of the NDPS Act was served upon the said detained person and he was asked to appear at the office of NCB, EZU, Kolkata for further investigation but the said person disclosed that the address of the office of NCB was not known to him and as per his request the NCB office accompanied him to the office of NCB There the statement of the said person under Section 67 of the NDPS Act was recorded wherein he had disclosed his guilty. Then the said person was arrested on 07.04.2009 at 11:30 p.m. From the petition of complaint it is further revealed that on 06.04.2009 at about 5:00 P.M. another team of NCB officials searched the residence of Rafiq Qureshi. The wife of Rafiq Qureshi opened the door on search no contraband were found but a sum of Rs. 14,805/- was recovered from the said house and the same was seized as the NCB officials had reason to believe that the same was sale proceed of illicit business of drugs. The wife of Rafiq Qureshi namely Rama Qureshi handed over the photocopy of her voter identity card, ration card and electric bill, which were ....
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....J. Jayalalitha and Others vs. State of Karnataka and Others reported in (2014) 2 SCC 401 in para 25, 26 and 29 observed that "when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. The other methods or mode of performance are impliedly and necessarily forbidden." That the instant case being lodged by a petition of complaint for a warrant triable offence in the court of the magistrate under Section 200 Cr. P. C. and cognizance of the offence was taken under Section 190(a) of the Criminal Procedure Code by the Court who was obliged to proceed in accordance with the provisions of mandates of Section 244 to 246 of the said Code. But the Learned Court in the instant case have grossly violated the said mandatory provisions of the code, consequently the entire trial has become void ab initio and the accused is entitled to be acquitted forthwith. Learned Counsel for the NCB vehemently raised objection against the contention made by the learned Co....
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....17 that if the information of the commission of the offence under the NDPS Act is received when the concerned officers are in their office, noting down of the same and sending a copy of it to his immediate superior is a must and its violation will entitle the accused to an acquittal from the case, In the instant case as the mandate of the Section 42(1) and 42(2)which direct the authority to do the same have not been complied with. Learned Counsel for the NCB opposed such contention raised by the learned Counsel for the appellant and submitted that the provision of Section 42(1) and 42(2) of the NDPS Act have been duly complied with. On careful appreciation of the evidence on record what we find is that the PW-1, Sankar Das Sinha, the intelligence officer of the NCB deposed that on 05.04.2009 he along with Tushar Kanti Biswas, Intelligence Officer and Laxmi Kanta Dutta, Intelligence Officer received jointly on information about the supplying of huge quantity of Heroin and the same was reduced in writing through the NCB form no. 1 and submitted to Zonal Director, NCB, Kolkata Office. He had proved the same as exhibit-2. PW-2, Tushar Kanti Biswas in his examination-in-chief stated....
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....otection against false implication and to ensure fair trial. That apart our attention was drawn by the learned Counsel for the NCB that the accused person was intercepted and searched on the NH- 34 near rail gate no. 1 on Subhaspally area, Bongaon, PW-1 in his evidence stated that they reached at Chandpara at about 01:00 Hrs. on 06.04.2009. They halted there for few hours, thereafter they reached Chandpara near Subhaspally area which is 100 meters away from Bongaon railway gate no. 1 from 10:30 hours on 06.04.2009. At about 15:00 hours they noticed a person coming from Chandpara side andgoing towards Bongaon by riding Yamaha Motor Cycle and as per information they stopped the said motor cycle rider and encircled him. The evidence of PW-1 is duly corroborated by the PW-2, Tushar Kanti Biswas and PW-5, Laxmi Kanta Dutta. Learned Counsel for the NCB submitted that as per the explanation of Section 43 of the NDPS Act, the term "public places" means the place intended to be used by or accessible to the public at large. No doubt in the instant case the alleged place of occurrence comes within the purview of the explanation of Section 43 of the NDPS Act and where search and seizure are co....
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....ction of the accused absolutely illegal in this case. Learned Counsel for the NCB raised strong objection against the submission made by the learned Counsel for the appellant and argued that the provision of Section 50 of the NDPS Act has not been violated in the instant case at all. In view of the fact that that the alleged seizure was made not from the person of the accused but from a bag which was hanging from the handle of the bike in which the convict was proceeding and another bag was found in the side box of the aforesaid motorbike. Let's now see the evidence of the prosecution witnesses on this score. The PW-1 deposed to the effect that they ambushed near Subhashpally area which is 100 meter away from Bongaon railway gate no. 1 from 10:30 hours on 06.04.2009. At about 15 hours they noticed a person coming from Chandpara side and going towards Bongaon by riding Yamaha Motor Cycle and as per information they stopped the said motor cycle rider and encircled him. On an enquiry head is closed his identity as Rafiq Qureshi of Bongaon. Then the NCB Official disclosed their identity as the officer of Narcotic Control Bureau, Kolkata and also informed him about their intention to ....
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....of PW-1 it further appears that the accused voluntarily handed over the bags to the officer of the NCB and they seized the same. Now it is a settled principle of law that "A bag, a briefcase or any such article or container can under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, tin box a thaila, a jhola, a gathri, a holdall, a cartoon etc.of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder bag or head etc. Therefore it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act. AIR 2007 S.C. 2018 at page 2019, at page 2020 In Kanhai....
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....t aside the judgment of conviction in the said case only on the ground of non-compliance of the direction of the said provisions. In the instant case the mandates of those sections of 55 and 57 of the NDPS Act have not been complied making the judgment of conviction of this case illegal. In paragraph 24 in the decision in the case of Kishan Chand vs. State of Haryana reported in (2013) 2 SCC 502 the Hon'ble Supreme Court has been pleased to observe that the failure to comply with the provision of Section 57 of the NDPS Act, would render the judgment of conviction for the offence as illegal. On the other hand, the Learned Counsel for the NCB has relied on the judgment in the case of State of Punjab vs. Balbir Singh reported in 1994 (3) SCC 299 and submitted that Sections 55 and 57 are not mandatory. The Supreme Court in its judgment has opined "that these Sections contained certain procedural instructions for strict compliance by the officers. However, if there is failure to comply with these instructions that by itself cannot render the acts done by these officers null and void. The probative value of such arrest or search could be affected and in some cases may invalidate the ar....
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....nd, this PW-5 was thoroughly cross-examined by the Learned Advocate for the accused during the course of trial but nothing was found during his cross examination which could be used against the prosecution. Thereafter, we are of the view that there is no breach of Section 55 or Section 57 of the NDPS Act. The learned Counsel for the appellant has then argued that the Trial Judge found the appellant guilty for his alleged statement of confession admitting his guilty for the commission of the offence as recorded under Section 67 of the NDPS Act, by the Intelligence Officers of the Prosecution Agency of Narcotic Control Bureau of Eastern Zone and PW11 who is the raiding and seizing officer and also the investigating officer of this case deposed that PW1, PW2, PW5, PW6, PW9 and he himself as PW11 are all vested with the power of the Officer-in-Charge of a Police Station and as such the alleged confessional statement recorded under Section 67 of the NDPS Act by PW1 is inadmissible under Section 25 of the Evidence Act as it has been decided by the Hon'ble Supreme Court in its two land mark judgment in Noor Aga Vs. State of Punjab & Anr reported in (2008) 16 SCC 417 in its paragraphs 74....
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....vidence, if it is made voluntarily and without any fear, inducement or coercion. As far as the voluntary nature of the statement made in this case is concerned, this statement was made on 06.4.2009 when he accompanied the officers to the NCB Office at 4/2 Karaya Road, Kolakata-700017 in which he admitted his guilt and also admitted that Saimuddin of Lalgolahad supplied the Heroin/derivative of opium to him on 06.4.2009 and he is also involved in this illegal trafficking of Heroin and it was retracted for the first time during his examination under Section 313 of the Cr.P.C. after the accused engaged a lawyer and got legal advice. Further the statement, which runs into a few pages the first two pages of which was recorded by the appellant himself in his own handwriting. This fact also gives credence to this statement. No suggestion was put to the PW1 that the statement was obtained by force, duress or coercion. The evidence of the prosecution witnesses coupled with the statement of the accused/appellant recorded under Section 67 of the NDPS Act makes it clear that the two bags recovered from his possession belonged to the appellant / accused from which the Heroine was recovered besi....
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....l with the steps to be taken after the seizure of the contraband article or arrest of the accused are not mandatory and non-compliance of those provisions will not ipso facto vitiate the prosecution. On appreciation of the materials available on record, we find that the accused was produced before the Learned court below on 07.4.2009 but the prayer under Section 52-A of the NDPS Act was filed on 25.7.2012 and order of disposal was passed on 30.8.2012. Therefore, it could be safely concluded that the compliance of the provisions of Section 52-A of the NDPS Act was made although there was some delay in that respect and such delay in the disposal of the contraband articles has not caused any prejudice to the accused person. The defense could not show any iota of evidence due to such delay any miscarriage of justice was done to the accused. The learned counsel for the appellant also advanced an argument that all search, seizure, taking of samples and also certifying of notice to the accused were done in present of two independent witnesses like Atanu Haldar and Bablu Sk. but the prosecution did not make any attempt whatsoever to examine them in the court as the witnesses. The non-exa....
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....possession of the applicant though the prosecution itself inconformity of the mandate of the aforesaid judgment, clearly stated the percentage of the contents of actual heroine in each six packets allegedly recovered from this appellant in paragraph 15 of the petition of the complaint. As per the seizure list and the percentage of heroine contained in the same in total was about 609.6 gm. But the learned court below without complying the law prevailing at that time considered the gross quantity of 8.175 Kg of Heroin alleged to have been recovered from the present appellant to aggravate the gravity of the offence to justify the imposition of punishment of 18 years on him that is more than the minimum sentence of 10 years imposable in this case, without assigning any reason which mandatorily required under Sub-Clause (a) to (f) of the Section 32-B of the NDPS Act which makes the judgment illegal. In the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau reported above the Supreme Court has referred to its previous judgments and has held that when a Narcotic Drug or psychotropic substance is found mixed with one or more neutral substances, it is the content of ....