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@JUDGMENT-JUDGMENT
Sahidullah Munshi, J
This appeal is against the judgment and order of conviction dated 6th May, 2014 and sentence dated 13th May, 2014 passed by the learned Judge,
Special Court NDPS Act, Nadia, Krishnagar, in N.D.P.S. Case no. 17 of 2012 convicting and sentencing the appellant under Section 20(b)(ii)(b) of
the NDPS Act. By the order of sentence learned Court below has sentenced the appellant to suffer rigorous imprisonment for 10 (Ten) years and to
pay a fine of Rs.1,00,000/- (Rupees One Lakh) only, in default to suffer simple imprisonment for further one year for the offence punishable under
Section 20(b)(ii)(b) of NDPS Act.
The accused/appellant was in jail custody from 1st May, 2012 to 22nd July, 2014 and further after admission of appeal, appellant's application for
suspension of sentence being CRA 2743 of 2014 was allowed by this Court by an order dated 22nd July, 2014, as a result whereof the appellant was
released on bail pending hearing the appeal. In this case trial was started on the basis of a written complaint dated 1st May, 2012 filed by SI Partha
Pratim Roy, Officer-in-charge, Karimpur Police Station, Nadia, on the allegation that the complainant was apprehended by a raiding team led by the
complainant and the sub-inspector, Karimpur, upon conducting raid apprehended the accused and recovered 16 kgs 200 gms of ganja from his
possession which was being carried in a vehicle bearing no. WB 26 R/1103 without any valid paper to possess such narcotic substances. The said
ganja was seized as per seizure list and upon taking sample packed, sealed and levelled, the complainant filed written complaint with Karimpur Police
Station on the basis of which Karimpur PS case No. 77/2012 was started. After investigation was completed police submitted charge-sheet being no.
101/2012 against the accused persons for the offence punishable under Section 20(b)/29 of NDPS Act. Charge was framed against the accused
persons for the offence punishable under Section 20(b)(ii)(b) of NDPS Act. The accused pleaded not guilty and claimed to be tried.
Prosecution examined 10 witnesses. The present appellant was tried with few other accused persons namely, Habul Mondal and Mukul Mondal.
Habul and Mukul were found not guilty of the offences punishable under Section 20(b)(ii)(b) of NDPS Act and they were, accordingly, acquitted from
the charges framed against them. The present appellant was convicted and sentenced as mentioned hereinabove.
Mr. Mukherjee learned counsel appearing for the appellant has challenged the judgment of conviction and order of sentence on the following grounds
that (1) the trial Court passed order of conviction and sentence on a non-application of judicial mind and as a result thereof the impugned judgment and
order is liable to be set aside.
B) Evidence on record does not justify conviction of the appellant under Section 20(b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act
(NDPS Act) and the order of conviction is liable to be set aside.
C) Learned Judge, Special Court, has failed to properly appreciate the evidence on record and on a mis-appreciation thereof allowed itself to pass an
erroneous decision to convict the appellant and to sentence him. The learned Judge failed to assess that there was no independent witness to support
the prosecution case inasmuch as PW1, PW3, PW4 and PW5 turned hostile and did not support the prosecution story and that being so the learned
trial Court instead of convicting the appellant, ought to have passed an order of acquittal and to hold that the appellant was falsely implicated in the
case.
Learned Special Court failed to proceed that the circle inspector (Gazetted Officer) being PW9 could not produce any valid document to show that
ganja was seized, samples were taken, packing and seal was done on the main alamat which is enough to shake the credibility of PW2 and PW7 upon
which the impugned order of conviction has been passed. The learned Judge, Special Court has not appreciated the principles to be followed during
search and seizure in the instant case whereby there has been a miscarriage of justice which is sufficient to render the order of conviction illegal. The
learned Judge, Special Court has allowed himself to be mislead by the provisions of Section 54 of the NDPS Act in arriving at an erroneous decision
that the appellant has failed to discharge reverse burden of proof and has passed the order of conviction solely relying upon this ground. Although, the
learned Judge before passing the order of conviction ought to have, prima facie satisfied about the foundational fact which could attract the order of
conviction, the prosecution has completely failed to prove the case beyond all reasonable doubts and therefore, the order of conviction is liable to be
set aside.
Examination of the appellant under Section 313 of the Code of Criminal Procedure was not conducted in the manner ought to have been and this
irregularity render the judgment and order of conviction un-sustainable. That the quantum of sentence imposed upon the appellant is too harsh and is
disproportionate with the offence.
Of the total 10 witnesses, it appears that PW1, PW3, PW4 and PW5 are seizure witnesses. PW1 supposed to be an independent witness and has
witnessed the seizure of the narcotic substances as stated in chief ""I do not know any incident on 01.05.2012 near Karimpur P.S. where police had
apprehended one person with Ganja. This is my signature (on Se List) Ext.1 at on this legal of this sack (MAT Ext.I & I/1 respectively) on prayer of
prosecution.†After this was recorded the witnesses was declared hostile and prosecution was permitted to cross-examine this hostile witness. In
cross-examination the said witness stated ""...I signed as a seizure witness in presence of C.I. Karimpur & two persons fled away. Not a fact I am
deposing falsely..."" The witness further stated in cross-examination ""I signed on the document as police forced me to put my signature at the thana.
Therefore, evidence of this witness shows that the prosecution got the witness's signature on seizure list upon applying force. Whatever this witness
has done, he has done it under pressure.
PW3 is also an independent seizure witness and in his examination-in-chief stated ""I do not know of any incident which occurred on 1-5-2012 near
Karimpur P.S. where police had apprehended one person with ganja. This is my signature on the document (seizure list). The signature of the witness
on the seizure list is marked Exbt.1/1. This is my signature on the label of MAT Ext.I (Marked Exbt.I/2)."" After this witness was declared hostile,
prosecution was allowed to cross-examine. In cross-examination this witness stated ""Not a fact that I stated to I. O. that on 1-5-2012 I saw police
apprehended one person name Jamel Sheikh with ganja at about 9-00 P.M. and that police seized the said ganja where I signed as a seizure witness in
presence of C.I., Karimpur and two persons fled away. Not a fact that I am deposing falsely."" This witness in cross-examination by the defence
deposed ""I signed on the document as police forced me to put my signature at the thana."" This witness put his signature on the seizure but it has been
clearly stated that under pressure he had to sign on the purported seizure made by the raiding team. This witness also could not properly identify the
accused who is according to the complaint and charge-sheet 'Jewel Sheikh' but the witness said the person was 'Jamel Sheikh. This gives rise to a
suspicion whether Jamel Sheikh and Jewel Sheikh is one and the same person. Whatever might be the case this suspicion give rise to a benefit of
doubt that the accused Jewel Sheikh was not the person who was apprehended by the raiding team on 01.05.2012 headed by CI Karimpur Police
station.
PW4 is another independent witness who had allegedly weighed the seizure article on 01.05.2012 but in Court this witness deposed through his
examination-in-chief ""I am a day labourer. I did not weigh any articles for police on 1.05.12. This is my signature on this document (Notice) Ext.2 and
zimanama (Ext.3)."" After this statement was recorded the witness was declared hostile and prosecution was permitted to cross-examine the witness.
In cross-examination this witness deposed ""Not a fact that I stated to police that on 1.5.12 at 9 p.m. police called me and asked me weigh some article
& that weighed some articles at Batanpara where one person with Ganja weighing 16 kg 800 gms. was seized."" Again this witness stated in cross-
examination ""I signed on the document as police asked me to do so. I cannot say its contents."" Evidence of this witness clearly shows that he
completely denied that the seized article was weighed through him which according to the prosecution was weighed at 16 kg 800 grams. The witness
further stated that whatever he signed he signed under the pressure of the police officials and he had no knowledge about the contents whether was it
ganja or something else.
PW5 is another independent witness stated in chief ""I do not know of any incident which occurred on 1-5-2012 near Karimpur P.S. where police had
apprehended one person with ganja."" After this statement was recorded the witness was declared hostile and the prosecution was permitted to cross-
examine the witness. In cross-examination this witness could not utter the correct name of the accused. No suggestion has been given in cross-
examination by the prosecution as regards identity of the accused and whether ‘Jamel’ and ‘Jewel’ is one and same person.
On perusal of the evidence adduced by all these independent witnesses it became very fatal for the prosecution to prove the commission of offence. It
appears that the evidences were not sufficient to prove the seizure and identification of the seized goods. It is also not ascertained as to whether the
seizure was made on 01.05.2012 at the place indicated in the written complaint and it is also not ascertained whether the accused was the person from
whom seizure was made, if at all, and what was seized from the accused, if at all, was a narcotic substance as has been allegedly claimed by the
prosecution in the complaint. It is more frustrating to note that police witness PW8 Sunil Mondal, a member of the raiding team and also a seizure
witness could not identify the accused on dock. In his examination-in-chief this witness stated ""on 1-5-2012 I was posted at Karimpur P.S. as
constable. On that day, I accompanied by S.I. P.P. Roy and force to Bathanpara at 6/6-30 P.M. on the main road and then we stopped a vehicle
being no. WB 26R/11003…. I cannot say if Jewel Sheikh was present in Court or not."" Therefore, this witness claiming to be member of the raiding
team put his signature on the seizure list marked Exbt.1/4 but could not identify the accused on dock. If this is the quality of the evidence led by the
prosecution, it might be difficult to get an order of affirmation of the impugned judgment.
Now, we shall come to the other witnesses namely, PW2, PW6, PW7, PW9, PW10 and PW11. PW2 Nirmal Kr. Sen, Sub-Inspector of Police who
accompanied the complainant Sub-Inspector Partha Pratim Roy and the force to Bathanpara on the day when the alleged seizure was made from the
accused from vehicle no. WB 26R/1103. this witness also could not identify the accused on dock. He stated ""The accused was apprehended and
arrested. His name was Jewel Sk. I cannot say he is present in Court or not.
PW9 is a driver of the CI Karimpur Police station. He took the Officer of Karimpur police station to Bathanpara at about 8.00/8.30 pm where the
Officers allegedly conducted raid. He said he did not know the nature of raid. No reliance will be placed upon this witness.
PW10 is the Investigating Officer in this case who was posted at Karimpur Police Station as Sub-inspector of police on 01.05.2012. He took up the
investigation of Karimpur PS case No. 77/2012 and drew sketch map marked Exbt.6 and examined the witnesses and recorded their statement under
Section 161 of the Code of Criminal Procedure. According to this witness he sent samples for chemical examination and received chemical
examination report (Exbt.7; arrested accused and forwarded him to Court. PW10 submitted charge-sheet bearing no. 101/2012 (Exbt8). The
Investigating Officer in Court stated that the apprehended person was 'Jamel Sheikh' which has been confirmed by PW1, PW3, PW4 and PW5. In his
statement before the Court this witness deposed that PW4 Saiful Khan stated to him that the seized article was weighed by him and the weight was
16 kg 800 grams, whereas charge was framed against the accused/appellant in respect of the seized article seized from his possession weighed 16 kg
200 grams of ganja. Although, the discrepancies is of minor nature but serious in the sense that the Court never applied its mind during trial on the
charge framed and the article actually seized as per seizure list. These discrepancies, however, were not clarified by the prosecution through the
Investigating Officer for the reasons known to it.
PW11 is supposedly the Gazatted Officer being the circle inspector, Karimpur Police Station deposed on 01.05.2012. He stated in Court that he
received a source information that ganja was being carried in a vehicle coming from Nazirpur side and was going towards Karimpur side. It is PW7
the Officer-in-charge Karimpur Police Station informed him over phone and asked him to be present during raid. He stated on oath ""...I then met with
O.C. Karimpur and one person could be apprehended in the vehicle. On completion of all formalities in presence of public witnesses, we searched the
vehicle and recovered 16.200 kgs of ganja for which he could not produce any paper."" He further stated on oath in Court ""This is the copy of the
notice issued to accused Jewel Sheikh written and signed by S.I. Nirmal Sen in my presence (Marked Ext.4)."" It can be noted that this PW2, S.I.
Nirmal. Sen could not identify the accused in Court and trial Court has relied on both the evidence of PW2 and PW11 holding that PW2 and PW11
corroborates each other. Quality of this evidence is too poor to sentence for punishment with longer term without considering for the minimum one,
does not inspire confidence of this Court.
Although the evidence of witness PW5 is not happy one and cannot be relied to pass an order of conviction and sentence, it appears that learned trial
Court relying much on the evidence of PW5 held that he corroborated the complainant case. If this be the quality of appreciation of evidence it is
doubtful whether the trial Court has passed the order of conviction on proper appreciation of evidence on record as rightly pointed out by Mr.
Mukherjee in his submission. In fact, we are of the view that the evidence of PW5 is not supportive of the complaint case. While this evidence was
relied on by Mr. Mukherjee and the statement of the witness ""I cannot say if he is present in Court or not."" We verified ourselves from the record that
the accused was profound before Court on that day.
PW6 is another police witness who is Constable Bimal Mukherjee and according to prosecution he was part of the raiding team. He also could not
identify the accused in Court. He stated ""...The accused was apprehended and arrested. His name was Jewel Sheikh. I cannot say if he is present in
Court or not."" Therefore, this police witness who is part of the raiding team also failed to identify the accused on dock whether or not this accused
was present in Court on the day when this witness was examined 3rd April, 2013. We, for our own satisfaction checked the record and found that the
accused was present in Court on production, if this be the set of affairs where a police witness who accompanied the raiding team and has been
adduced to support the prosecution case, fails to identify the accused himself it is doubtful whether the prosecution has been able to prove its case
beyond any reasonable doubt. Now let us verity the evidence on complainant who is PW7 SI Partha Pratim Roy, he is seizing officer and complainant.
He stated ""I recorded the information in G.D. No. 35 at 20.35 hrs. This is the said entry & its true/certified copy of its extract (Ext.4).. Then I
informed my superior C.I. Karimpur over phone & asked him to be present during raid. I then along with force intercepted the vehicle at Bathanpara
More. Three persons managed to flee away from the vehicle. C.I. Karimpur arrived at the P.O. & one persons could be apprehended in the vehicle.
On completions of all formalities in presence public witnesses, we searched the vehicle & recovered 16.200 kg Ganja for which they could not
produce any papers. The Ganja was weighed, and seized sample taken, packed sealed and labelled as per seizure list. The seizure list was prepared
and signed by me."" The said complainant further stated ""I cannot say if the apprehended person is present in Court today or not..."" This complainant
again stated in his cross-examination ""I did not inform my superior in writing."" From the analysis of this evidence it is apparent firstly, that the
complainant did not comply with the requisites under Section 42(2) of the NDPS Act, by not informing his superior in writing has been confirmed in his
cross-examination. And admitting that he informed his superior CI Karimpur over phone who discussed this aspect regarding compliance and/or non-
compliance of the provisions of Section 42 of the NDPS Act, in accusing a person under the said Act. But what is more apparent from the evidence is
that this witness PW7, there is no doubt, that he could not identify the accused on dock. If the complainant who is a seizing officer on 01.05.2012
could not identify the accused only after a year we have to consciously think over the issue as to how far the allegation in the complaint has been
proved by the prosecution.
It has been consciously noticed by us that learned trial Court had arrived at a finding that the written complaint as also the seized Alamat has been
duly proved by PW7. According to the trial Court the witness also proved GD entry being Exbt.4 which was the recorded information about the
vehicle carrying contraband coming from Nazirpur side and was supposed to go towards Karimpur side. This part of the finding of the trial Court and
appreciation of the evidence of PW7 is also not a happy affair particularly when the trial Court passed order of conviction relying on the evidence of
this witness. It is also not a happy affair when trial Court observe that requirement under Section 42 of the NDPS Act has been duly complied with by
the concerned Officer, although, fact remains that he informed his superior over telephone and not in writing.
Mr. Agarwal learned advocate appearing for the State of West Bengal submitted that trial Court has rightly convicted the person under the provisions
of Section 20(b)(ii)(b) of the NDPS Act. He submitted that the charges against the accused/appellant is very serious and that to when he has been
caught red handed on raid in a vehicle. There was no wrong for the raiding officers to seize the contraband from him and thereafter to cause arrest of
the accused.
Learned advocate submitted that the trial Court has rightly pass the order of conviction on charges labeled against the accused which has been duly
proved and that apart, when the accused could not produce any contrary evidence to prove that he is not guilty meaning thereby when the accused
has failed to discharge the reverse burden of proof which he is to discharge under the provisions of Section 54 of the NDPS Act, the judgment and
order of conviction passed by the Special Court cannot be questioned in this Appeal. According to him there is no was merit in the appeal and the
same deserves to be dismissed.
Mr. Agarwal relied on two decisions :-
State of Haryana -Vs. - Jarnail Singh and Ors. reported in (2004)5 SCC 188 &
M Prabhulal -Vs.- Assistant Director, Directorate of Revenue Intelligence decided by the Hon'ble Supreme Court on 19.09.2003.
Mr. Mukherjee learned advocate appearing for the appellant relied on the following decisions to prove that the judgment and order of conviction
passed by the trial Court cannot be sustained and his client deserves to be acquitted. The decisions cited by Mr. Mukherjee are as follows:
Directorate of Revenue and Anr. â€"Vs. â€" Mohammed Nisar Holia reported in (2008) 2 SCC 370;
State of Haryana -Vs. - Jarnail Singh and Ors. reported in (2004) 3 SCC 188;
State of Rajasthan -Vs. - Jagraj Singh alias Hansa reported in (2016) 11 SCC 687;
Gorakh Nath Prasad -Vs. - State of Bihar reported in (2018) 2 SCC 305;
State of Karnataka -Vs. Dondusa Namasa Baddi reported in (2010) 12 SCC 495 &
Kishan Chand -Vs. - State of Haryana reported in (2013) 2 SCC 502.
In Mohammed Nisar Holia (supra) interpretation of the provision of Section 42 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act) fell for consideration. The fact of that case in brief is that an information was received in the Office of Directorate of Revenue
Intelligence that one person staying in a room of a hotel was in possession of an office copy of consignment note under which contraband was being
transported from Delhi to Mumbai. The said information was passed on to PW1 who reduced the same to writing and placed it before senior
Intelligence Officer PW10. PW1 along with few other officers visited said hotel and came to know that the accused was staying in a room of the
hotel. All the employees of the hotel were asked to be witnesses. When the door of the room was knocked accused opened it. He allegedly was given
an information to get himself searched in presence of a Gazetted Officer or a Magistrate. The accused was arrested on the basis of recovery.
Statement of the accused was also recorded in terms of Section 67 of the NDPS Act.
Trial Judge relying on the provision of Section 66 and 37 of the NDPS Act held the accused guilty of the commission of offence under Section 8(c),
22, 29 of the NDPS Act. Which in appeal the High Court observed, though the information was received by the Officer of Directorate of Revenue
Intelligence, which was reduced to writing by the officer who received it but by PW1 who was later on conveyed the message by the said office.
Thus the High Court, without going into the other question, opined that as the statutory requirements of Section 42 of the NDPS Act had not been
complied with, the judgment of the trial Court could not be sustained. Against such judgment of the High Court appeal was filed before the Apex
Court which has been dismissed by the Hon'ble Supreme Court.
The Hon'ble Court held power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the
terms ""reason to believe"" have been used. Such belief may be founded upon secret information that may be orally conveyed by the informant. Section
43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the
authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a
public place.
If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with.
Paragraph 11,13 and 14 of the decision is relevant for the present purpose, those were set out below:
“11. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the terms ""reason
to believe"" have been used. Such belief may be founded upon secret information that may be orally conveyed by the informant. Draconian provision
which may lead to a harsh sentence having regard to the doctrine of 'due process' as adumbrated under Article 21 of the Constitution of India require
striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the
other.
Requirements of Section 42 was read into Section 43 of the NDPS Act. A somewhat different view, however, was taken subsequently. Decisions
were rendered opining that in conducting search and seizure in public place or a moving vehicle, provisions appended to sub-section (1) of Section 42
would not be attracted. Decisions were also rendered that in such a case even sub-section (2) of Section 42 need not be complied with.
Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part
of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is
a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a
balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect
that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as
non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the
basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per
chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would
be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place
which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior
information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and
obtain his permission as also recording the reasons therefor coupled with the fact that the place which is required to be searched is not open to public
although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is
entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in
regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated
different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place
and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a
statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra
vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the
extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in
a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not
places.â€
The Hon'ble Apex Court further held that statutory requirement under Section 42 of the NDPS Act had not been complied as the person who had
received the First Information had not reduced the same to writing. An officer who received such information was bound to reduce the same to
writing and not the person who heard there about. Therefore, the Hon'ble Apex Court held that the judgment of the High Court reversing conviction
does not suffer from any legal infirmity. While rendering decision in this case the Hon'ble Apex Court also considered a Constitution Bench decision of
the Apex Court in State of Punjab -Vs. â€" Baldev Singh reported in (1999) 6 SCC 172 and State of Haryana -Vs. - Jarnail Singh and Ors. reported in
(2004) 5 SCC 188 which has been relied by Mr. Agarwal.
Mr. Agarwal cited Jarnail Singh (supra) to argue that 'tankar' is a public vehicle and, therefore, in the instant case the vehicle from which the
contraband was seized is also a public vehicle lying on public road which is a public place and provisions of Section 43 has to be applied. He submitted
that argument advanced by Mr. Mukherjee that there has been non-compliance of Section 42, has no basis. However, incidentally it may be pointed
out that this decision in Jarnail Singh (supra) has been taken care of by the Hon'ble Apex Court in Mohammed Nisar Holia (supra), therefore, the ratio
in Mohammed Nisar Holia (supra) squarely applies in the present case. In the said decision in Mohammed Nisar Holia (supra) the Hon'ble Apex
Court has considered a passage of from Baldev Singh (supra) the passage reads as follows: ""If the officer has reason to believe from personal
knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been
committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he
shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such
unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of
causing prejudice to the accused.
In Jarnail Singh (supra) the Hon'ble Apex Court held ""Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in
Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that
an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to
have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression
“public place†includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
Since both Jarnail Singh (supra) and the Constitution Bench Decision in Baldev Singh (supra) have been considered by the Hon’ble Apex Court in
Mohammed Nisar Holia (supra) and the Hon'ble Apex Court came to a finding that scope of the two sections have been the ratio of the decision in
our view supports the appellant here. We hold that the Authority failed to comply with the provisions of Section 42 of the NDPS Act and since such a
non-compliance caused prejudice to the accused is definitely to get benefit out of it and we consider that justice will be sub-served if the accused is
punished not for the longer period which has been inflicted by the trial Court but for a lesser period. So far the decision cited by Mr. Agarwal in M
Prabhulal (supra) is concerned we deem it not appropriate to discuss thoroughly inasmuch as the said decision in M Prabhulal (supra) has already
been considered by the Hon'ble Apex court in Jarnail Singh (supra) decided on 29.04.2004. Since We have already discussed the ratio of Jarnail Singh
(supra) no elaboration of M Prabhulal (supra) is necessary in this case.
Jagraj Singh (supra) has been cited by the learned advocate for the appellant to argue in the fact and circumstances of the case whether Section 42 is
attracted or Section 43 is applicable. While relying on the ratio of this decision in Jagraj Singh (supra) the appellant also questioned two other decision
of the Hon'ble Apex Court in Karnail Singh -Vs. - State of Haryana reported in (2009) 8 SCC 53 9and Beckodan Abdul Rahiman -Vs. -State of
Kerala reported in (2002) 4 SCC 229. Beckodan Abdul Rahiman (supra) was an appeal before the Supreme Court at the instance of the convicted
person, the Supreme Court held that provision of Sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the
prosecution which render the case unsustainable. It was held that in view of the violation of the mandatory provision of the Act, the appellant was
entitled to be acquitted. According to the Hon'ble Apex Court both the trial Court and the High Court failed to consider that aspect and therefore, the
Hon'ble Apex Court allowed the appeal after setting aside interim judgment and order of conviction. However, the ratio in Beckodan Abdul Rahiman
(supra) has been considered in Jagraj Singh (supra). Learned Advocate also pointed out that a Constitution Bench judgment inK arnail Singh -Vs.
State of Haryana reported in (2009) 8 SCC 539 had also been considered by the Hon'ble Apex Court while deciding Jagraj Singh (supra) and Karnail
Singh (supra). However, the Hon'ble Apex Court held whether was there adequate or substantial compliance with Section 42 or not is a question of
fact to be decided in this case and compliance of Section 42 may not, however, vitiate the trial if it does not cause any prejudice to the accused. In the
given case in Karnail Singh (supra) the Hon'ble Apex Court remanded the matter back for a fresh decision. The ratio in Karnail Singh (supra) which
has been followed in Jagraj Singh (supra) is that ratio in Karnail Singh (supra) is to be followed. The argument advanced by Mr. Mukherjee cannot be
accepted to hold that because of non-compliance of Section 42(1) the entire proceeding stands vitiated and the accused must get an order of acquittal.
Question is whether because of invocation of law and part non-compliance of the provision any prejudice has been caused by the accused or not. In
the present case although, there has been some infraction apparent on the face of record but such deviation is not so fatal as to render the entire
prosecution case liable for setting aside, nor is it the case that the trial in the way it proceeded should be rendered nugatory and/or vitiated so that
order of conviction passed by the trial Court should held to be ab initio void. Therefore, this decision does not help arguing acquittal of the appellant.
The decision in Jagraj Singh (supra) has however, distinguished the application of the provision of Section 42 and 43 and their application in a given
case. Therefore, we cannot agree with the argument advanced by the learned advocate for the appellant that the entire trial stood vitiated and
consequently, the appellant deserves to be acquitted even though an order of remand is necessary after it is established that there has been non-
compliance of Section 42.
At the same time we also do not agree with the submission made by the learned advocate for the State that in the instant case not Section 42 but
Section 43 would be applicable as held by the Hon'ble Apex Court in the decision in Jagraj Singh (supra). We hold that the vehicle which was
allegedly seized by the raiding team being a privately owned vehicle provisions of Section 43 cannot be made applicable. Paragraph 21 of the decision
is relevant here and same is set out below:
“21. There is nothing to impeach the aforesaid findings. We have also perused the statement of Vira Ram in which statement he has never even
stated that “…I had given this jeep to Kartara Ram, resident of …who is my relative to run it for transporting passengers.†Admittedly the jeep
was intercepted and was seized by the police. In view of the above, the jeep cannot be said to be a public conveyance within the meaning of the
Explanation to Section 43. Hence, Section was clearly not attracted and the provisions of Section 42(1) proviso were required to be complied with and
the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction.â€
In the facts and circumstances of the present case neither the decision in Jagraj Singh (supra) nor the decision in Beckodan Abdul Rahiman (supra)
and Karnail Singh (supra) help Mr. Mukherjee to get an order of acquittal nor does it help Mr. Agarwal to argue that it is not Section 42 but Section 43
should be considered.
Gorakh Nath Prasad (supra) has been cited my Mr. Mukherjee to argue firstly, that the accused must get benefit of doubt if there appears that
independent witnesses when declared hostile only the remaining witnesses namely the police witnesses are to be relied in order to come to a
conclusion that the offence was committed by the accused persons. In the present decision the Hon'ble Apex Court discussed how far it would be
safe for acquittal or to convict an accused simply on the basis of the testimony of the police witnesses. Mr. Mukherjee, has also drawn attention of
this Court regarding the issue of reverse burden of proof taking into consideration of which the trial Court held that apart from the other parts of the
evidence since the accused could not come out clean by adducing independent witness that he is innocent in compliance with the provisions of Section
54 of the NDPS Act, the accused can be held to have committed the offence and hence, can be convicted. However, the decision is on the ratio
irrespective of compliance or non-compliance of the reverse burden of proof. The accused is entitled to get any account of benefit for the suspicious
circumstances emerging from the trial procedure and the evidence so far adduced by the prosecution.
The said two decisions in Dondusa Namasa Baddi (supra) and Kishan Chand (supra) does not help much in the present situation of the case,
therefore, we avoid further elaboration on the points urged by Mr. Mukherjee to argue that the accused persons are entitled to clean acquittal.
Looking at the overall assessment of the evidence particularly, when the witnesses failed to corroborate each other and even then the Court relying on
the evidence of such witnesses convicts a person; impose a punishment of higher degree not below 10 years, compels us to think seriously about the
degree of proof advanced by the prosecution.
In our considered view keeping aside the argument that the accused has not been able to come clean by adducing independent evidence in support of
his innocence, the accused is entitled to get benefit of doubt if there is any element in the evidence that the same is not sufficient for awarding just
punishment for the period he has been convicted, we must give some benefit to the accused.
We thus, hold that in the facts and circumstances of the case and the evidence on record it would have been just and proper to award a lesser
sentence than what has been awarded by the trial Court. The trial Court has awarded the maximum punishment of 10 (ten) years which we modify by
awarding a sentence of 7 (seven) years with a fine of Rs.50,000/- (Rupees Fifty Thousand) only, in default, to suffer rigorous imprisonment for one
year more.
The order of sentence is thus modified. Appeal stands disposed of. The correctional home concerned is directed to take steps accordingly.
All concerned are directed to act on a server copy of this judgment and order. Department is directed to communicate a copy of this order to the
concerned jail authority.
The Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned
learned trial Court.
Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.