RAFIQ QURESHI vs NARCOTIC CONTROL BUREAU, EASTERN ZONAL UNIT

Amitabha Chatterjee, J

This appeal is directed against the judgment and order of conviction dated 20.09.2014 and 22.09.2014 passed by the learned Additional District and Sessions Judge, 6th Court, Barasat, North 24 Parganas in NDPS Case No. N-41/2009 convicting the appellant under Section 21(c) of the NDPS Act, 1985. By virtue of the impugned judgment, the appellant was convicted for commission of offence punishable under Section 21(c) of the NDPS Act, 1985. By virtue of the impugned judgment, the appellant Rafiq Qureshi is sentenced to suffer rigorous imprisonment for a term of 18 years and to pay fine of Rs.2,00,000/- (rupees two lacs) only, in default to pay fine, he shall suffer imprisonment for 12 months more for offence under Section 21(c) of the NDPS Act. The period 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 Subhaspally area (about 100 meters away from Bongaon rail gate no.1) and encircled him. On being asked, the person disclosed his identity as Rafiq Qureshi.

The NCB Officer disclosed their identity as officers of NCB, EZU, Kolkata and expressed their intention to search his belongings and his motorcycle. He was also informed that he had the right to be searched in presence of any Magistrate or any Gazetted Officer, but he declined to do so.

That, before starting the search, the officers called two independent witnesses from on-lookers to witness the search and seizure. In presence of the aforesaid two witnesses, the said person voluntarily handed over one multi coloured nylon bazar bag which was kept hanging from the right side handle of motor cycle and another nylon bag was also handed over to the NCB officials which was kept in the side box of the said bike. On opening the multi coloured nylon bazar bag, three transparent polythene packets containing blackish brown coloured powder substance were found and on opening the red and black coloured bazar bag, two transparent polythene packets containing blackish brown coloured substance and one packet of brown coloured powder substance were found.

A little quantity of brown coloured powder substance (1 packet) as well as blackish brown coloured powder substance (5 packet) were taken out separately from each of the packets so recovered and tested with the field test kit, which responded positive to the test of “Heroine/derivative of opium” in all the cases. Thereafter, the weighment of the said six recovered polythene packets were taken individually and were found 8.175 kgs.

(gross).

It is further revealed from the complaint the said person also voluntarily handed over one mobile phone of Sony Ericsson having service connection no.9734630635. Then on the basis of reasonable belief that the said person violated the provision of Section 8 of the NDPS Act, NCB officials took two samples of 5 gram each from his bag and the same were sealed and labeled properly and the main bulk were also sealed in the same manner and the bags were also sealed and labeled in presence of the independent witnesses. All the said items including the mobile phone and motor bike having registration no.WB-26E-4938 were seized under proper seizure list.

Further case of the prosecution is that on spot interrogation, Rafiq Qureshi, disclosed that 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 seized.

As per disclosure made by accused Rafiq Qureshi a follow up action was carried out by the NCB Officer at the temporary residential premises of Saimuddin at Palashi but Saimuddin was not found and no incriminating material was also found in the residence of Saimuddin. In spite of service of notice under Section 67 of the NDPS Act, the said person did not turn up at the NCB office.

From the petition of complaint it is further revealed that the chemical test reports were received on 17.06.2009 from the Chemical Examiner, Custom House, Kolkata wherein the chemical examiner found the presence of blackish brown coloured powder in the 6 packets and it responds positive to the tests for Heroine (Diacetyl Morphine) which are as under:

Sl. No.Details of Chemical examination% of Heroine (Diacetyl report of seized contraband Morphine)

Sample mark with S-1 Heroine contents — 6.1%

Sample mark with S-2 Heroine contents — 5.4%

Sample mark with S-3 Heroine contents — 5.8%

Sample mark with S-4 Heroine contents — 4.9%

Sample mark with S-5 Heroine contents — 10.4%

Sample mark with S-6 Heroine contents — 26.8%

On the basis of the aforesaid petition of complaint the case was initiated. On the basis of the materials on record charge under Section 21(c) of the NDPS Act was framed against the accused person on 08.09.2011 and the accused pleaded not guilty and claimed to be tried when the substance of acquisition was read over and explained to him. The learned court below passed the impugned judgment and order of conviction as also the sentence after taking into consideration the documentary and oral evidence of 11 prosecution witnesses as also the statement of the appellant recorded under Section 313 Cr.P.C. amongst others.

The learned counsel for the appellant submitted that the accused appellant has been convicted by the trial court under Section 21(c) of the NDPS Act, grossly violating the mandatory provision of sections 42/50/52A/55 and 57 of the NDPS Act and Notification No.G.S.R. 339(E) dated 10.05.2007 issued under Section 52A of the said Act. The Supreme Court of India in its number of decisions explicitly mandated the trial courts below to examine the strict compliance of the provision as the commissions of the offences under the Act are liable to harsh punishment.

The Hon’ble Supreme Court in Selvi 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 Counsel of the appellant. It is submitted by the learned Counsel for the NCB that Section 244 and 246 of the Criminal Procedure Code deals with the provisions relating to trial of warrant cases instituted otherwise than on police report by Magistrates but here in the instant case trial was conducted by a special court under the NDPS Act. In such a case the provision under Section 244 and 246 of the Criminal Procedure Code are not applicable at all rather the provision of Section 36A(1)(d) of the NDPS Act, 1985,comes into operation. On going through the aforesaid Section we find that Section 36-A(1)(d) provides that a special court may take cognizance of an offence under the Act without the accused being committed to it for trial. Regarding the power of the special court to take cognizance, it has to be noticed that a court of special judge is a court of original criminal jurisdiction. That being so, in order to make it functionally oriented some powers are conferred. Except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdictions not being hide found by the terminological status description or Magistrate or a Court of Session. It enjoys all powers which a court of original jurisdiction enjoys, save and except the ones specifically denied (1993 Criminal Law Journal, 442).

In Section 36-A(1)(d), it is specifically provided that a special court may, upon a perusal of police report of the facts constituting an offence under this act or upon a complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trail. So there cannot be any doubt that the special court is empowered to take cognizance of the offence under the Act without there being a committal proceeding. Having regard to the settled position of law we find that there is sufficient force in the contention as raised by the learned Counsel for the NCB. In fact, the trial Court did not make any irregularity in conducting the trial of the instant case.

Learned Counsel for the appellant further advanced an argument that the Hon’ble Supreme Court in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 and in the case of Kishan Chand Vs. State of Haryana reported in (2013) 2 SCC 502 observed in paragraph 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 that on 05.04.2009 at about 7:30 P.M., a batch of NCB Officers moved out from office after receiving a specific information and after duly reducing the same in writing and also after obtaining proper movement order, the team reached Chandpara at 1:00Hrs. on 06.4.2009 PW- 5, Laxmi Kanta Dutta in his examination in chief deposed to the effect that on 5th of April, 2009, acting on a specific information which was reduced by him in writing in presence of Sankar Das Sinha, I.O., NCB and Shri Tushar Kanti Das, Investigating Officer, NCB and after obtaining proper permission from competent authority on 05.04.2009 at about 19:30 hours, he along with Sankar Das Sinha I.O., Shri Tushar Kanti Biswas, Investigating Officer, Shri Debu Bandopadhayay, Investigating Officer and Asutosh Pahari, Intelligence Officer moved out from NCB, EZU; Kolkata along with others including one Lady Sepoy and reached at Chandpara at about 01:00 Hr. on 06.04.2009 and halted there. So, from the examination in chief of the aforesaid three witnesses namely PW-1, PW-2 and PW-5, it is evident that the information which was received by the NCB Officers was duly reduced in writing although there is a minor discrepancy in their version regarding the recording of the source information but the discrepancy is very minor as to the actual person who recorded the source information into writing but from the exhibit-2, it appears that the aforesaid document was produced from the office record duly certified by an officer in the rank of Zonal Director and the authenticity of the said document cannot be ignored.

So far as the compliance of the provision of sending the information to the immediate official superior is concerned we find that the PW-1 in his examination in chief stated that after the said information was reduced into the writing the same was submitted to the Zonal Director, NCB, Kolkata office. From the cross-examination of the PW-2 it is transpired that he along with the PW-1 and PW-5 sent the information to their officer superior. Though the PW1 during his cross-examination deposed that immediate official superior is the superintendent and the next superior is the Zonal Director but sending the information to the Zonal director, NCB is in no way considered as an illegal one. It is to be borne in mind that the purpose of the provision of Section 42(2) of the NDPS Act is to provide due protection 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 NH34 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 conducted in public place the provision of Section 43 of the Act are applicable and not Section 42 of the Act (Hardeep Singh Vs. State of Rajasthan, 2000 CRI. L. J. 4195). It is a settled principle of law that “a joint reading of Section 42 (1) and Section 42(2) of the NDPS Act therefore makes it from clear that the requirement in 42(2) will be attracted only to a case where the information relates to the availability of Narcotic Drugs and Psychiatric Substances in a building, conveyance or enclosed place as distinct from their availability in “public place” which is covered by a separate Section, namely Section 43. In Section 43 of the NDPS Act, there is no provision similar to that in Section 42 (2) of the NDPS Act which makes it obligatory for the officer who receives information to record the information and to send it to the official superior. The aforesaid provision makes it further clear that Section 42 (2) will be attracted only instead of the information relating to the availability of the contraband in a building conveyance or enclosed place”.

Considering the facts and circumstances of the present case we are inclined to hold that the mandatory provision of Section 42(1) and 42(2) of the NDPS Act has not been violated in such case in view of the fact that the search and seizure of the appellant was conducted in a public place.

Learned Counsel for the appellant further argued that in Kishan chand Vs. State of Haryana, the Hon’ble Supreme Court declared that the compliance of Section 50 of the NDPS Act is mandatory for searching a person before a Magistrate or a Gazetted Officer. It is further submitted that in Vijay Sinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609 the Apex Court had mandated at paragraph 29 and 30 of the said judgment that the officers of the arresting party in an NDPS Act cannot shake off their responsibility by merely giving the accused the option to be searched before a Magistrate or before an independent Gazetted Officer but for the reliability and authenticity of the allegations, they are duty bound to take him to a Magistrate or before an independent Gazetted Officer for his search even if the accused does not desire to exercise such option. The mandate of the said law, laid down by the Hon’ble Supreme Court has not been followed in the instant case which makes the implication, arrest, search and conviction 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 search the motor cycle as huge quantity of Heroine were being carried by him. He was also informed in writing that if he desires he should be searched before a Magistrate or Gazetted Officer but he declined to do so. They also offered him to search the NCB Officer before taking search upon him by NCB He also declined to it. Thereafter two independent witnesses were called from the on-lookers to witnesses search. They noticed one multi coloured bazaar bag was hanging on the right handle of the said motor cycle and the accused immediately voluntarily handed over the said bag to them. On opening of the bag the NCB Officer found three polythene packets containing brown coloured powder substance were kept inside the polythene packet. Then the officer asked him to open the dicky of the motor cycle, from there one red and black coloured nylon bazaar bag was

found. On opening of the said bag it was found that another three polythene packets containing brown coloured powder substance were kept.

From the evidence of the PW-11, Debu Bandopadhyay, it appears that the accused voluntarily handed over the bags to the NCB Officer and the same was searched in presence of two independent witnesses and the said contraband was sealed and labeled on the spot in presence of the said two independent witnesses. The PW-2, Tushar Kanti Biswas and PW-5, Laxmi Kanta Dutta also corroborated the evidence of the PW-1, Sankar Das

Sinha. From the evidence of the prosecution witnesses it is found that a notice was served upon the accused and the said notice was proved in the case which is marked as exhibit 19 during the course of trial. From the aforesaid document, it appears that the accused was duly informed about his right to be searched side in present of Magistrate or Gazetted Officer. The said document also bears the signature of the accused himself and as such it is proved that he had received a copy of the same. The aforesaid notice was proved during the course of trial by the PW-11, Debu Bandopadhyay, PW-2, Tushar Kanti Biswas, PW-5, Laxmi Kanta Dutta and PW-6, Asutosh Pahari also proved the very existence of the aforesaid notice. Therefore it can be safely conclude that by issuing the aforesaid notice the NCB official had complied the solemn direction of the Hon’ble Apex Court that the right of the accused should be communicated to the accused before the search.

From the version 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 Kanhaiya Lal Vs. State of Madhya Pradesh reported in (2000) 10 SCC 380 while dealing with the applicability of the provisions of Section 50 of the NDPS Act, the Hon’ble Apex Court held as follows:-

“The only point raised in this appeal is that the mandatory requirement of Section 50 of the Act was not complied with in this case, and, therefore, the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because one kg. of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a Narcotic Drugon Psychotropic Drug was found. In our opinion, the courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is therefore dismissed.”

In Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 it was held by the Hon’ble Apex Court of our country that Section 50 is applicable only where search of a person is involved and said Section is not applicable nor attracted where no search of a person is involved. Thus search and recovery from a bag, briefcase, container etc. does not come within the ambit of Section 50 of the

Act. On careful appreciation of the evidence on record what we find is that in the instant case the appellant voluntarily handed over the bag which was hanging from the handle of the motor bike of the accused and another bag which was recovered from the side bags of the said motor bike.

Therefore it could be safely concluded that the body of the accused person was not searched accordingly. More so the contraband article was seized from the motor-cycle of the accused person and from the seizure list it is crystal clear that the aforesaid motor-cycle was seized from the possession of the accused person and in his presence and the accused himself put his signature in the seizure list itself. Therefore, it can be safely presumed that the mandatory provision of Section 50 of the NDPS Act was not violated in any way, in the instant case.

The learned counsel for the appellant further argued that the compliance of the direction of Sections 55 and 57 of the NDPS Act are mandatory as it has been laid down in the case of Thandi Ram Vs. State of Haryana reported in (2000) 1 SCC 318 and the Hon’ble Supreme Court has been pleased to set 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 arrest or search. However, such violation by itself cannot invalidate the trial or the conviction if otherwise there is sufficient material on record”.

Now, in the instant case we find from the evidence on record that the accused Rafiq Qureshi voluntarily handed over one multi-coloured nylon bazaar bag which was kept hanging from the right handle of the motor-cycle. He also voluntarily handed over one more bazaar bag having black and red colour which was kept inside the dickey of aforesaid motor-cycle. On opening the multi-coloured bazaar bag, three numbers of polythene packets having some blackish brown coloured powder substance inside was recovered. On opening the other black and red coloured bazaar bag, another 3 numbers of polythene packets having blackish brown coloured substance in 2 packets and 1 light brown coloured powder substance in the remaining packet were recovered. Therefore, total 6 packets in number were recovered from the bags. One of those six packets was containing light brown coloured powder substance. Then in presence of the two witnesses a small portion of the powder substance from each packet were taken out separately and were tested with the field drug detection kit. The test results were positive to the presence of heroine. The two samples of 05 gms. each were taken from each packet, in total 12 numbers of samples were drawn up and samples were kept separately in a small transparent polythene packet and heat sealed. Likewise, mother quantities of 6 packets were also resealed and then the original packet as well as the 12 number of sample packets were further kept inside the clothed envelope and sealed and NCB wax sealed. Then the seizing officer, the accused person Md. Rafiq Qureshi and 2 independent witnesses put their dated signature on the face of the clothed envelope. The total weight of contraband recovered from the accused was of 8.175 kgs. After that a seizure list in this regard was prepared in presence of all the above said persons and the copy of the same was handed over to the accused after proper acknowledgement. The PW-5 Laxmi Kanta Dutta during his examination-in-chief deposed to the effect that being the incharge of the godown of the NCB he had received the seized articles in this case in properly sealed condition and the PW-5 proved the extract of the said godown registrar which is marked Exhibit-6. In the case in hand, 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 and 76 and the said principle and law has been confirmed by the another land mark judgment of the Hon’ble Supreme Court in the case of Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab reported in (2011) 12 SCC 298. As such the consideration of the aforesaid alleged statements of confession recorded by the Police Officer under Section 67 of the NDPS Act, cannot be used in this case which is prohibited under Section 25 of the Evidence Act and the same will be grossly illegal and unjust if this appellant is convicted by using the same against him as a legal evidence.

Now, from the evidence of the PW1, Sankar Das Sinha as well as the other PWs it appears that after search and seizure, the accused was served a notice under section 67 of the NDPS Act and he had appeared at the office of NCB at Kolkata and made his voluntary statement. The said notice and the statement were proved by the PW1 Sankar Das Sinha those were marked as Exhibit-1 and 4 respectively. The PW1 deposed to the effect that the accused wrote down first and second page of the said statement and then as per his dictation the PW1 wrote down the remaining part. After the writing of the said statement was over it was read over and explained to the accused and having been satisfied the accused had signed in the said statement. The wife of the accused who happens to be the DW-1 in the instant case had identified the signatures of her husband in the Exhibit-4.

Although and during his examination under Section 313 of the Cr.P.C. the accused had admitted that he wrote few lines and then the officer of NCB wrote down and he was forced to sign but he did not mention the nature of threat given to him or in what manner pressure was brought upon him and this fact of threat was not raised by the accused when he was produced before the learned court below on 07.4.2009 or on any subsequent days during his stay in the judicial custody. Not only that but also at the time of cross-examination no question whatsoever was put to the PW1, who completed the recording of statement under Section 67 of the NDPS Act that the said statement was recorded under threat. In fact, the accused took the defense at a very later stage without taking any effort to place it at the first occasion.

It is a settled principle of law that the statement recorded under Section 67 of the NDPS Act is admissible in evidence, 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 besides other articles which were taken into possession as per the seizer list prepared in that regard. The Trial Court has discussed this matter in detail and it needs no interference.

The learned counsel for the appellant further submitted that as per the mandate of sub-Section (2) of Section 52-A of the said Act, an inventory should be prepared by the seizing officer in respect of the suspected Narcotic Drugs seized by him in presence of a Magistrate and certified by him in respect of their quality quantity and photographs etc. of the seized Articles and the samples is to be taken from the same in presence of the Magistrate certified by him and said inventory shall be the primary evidence of the case under Sub-Section (4) of 52A of the NDPS Act. In absence of such inventory certified by the Magistrate which is the primary evidence of the case, the conviction of any accused in such cases is legally barred and absolutely illegal. In support of such contention the learned counsel for the advocate referred two Division Bench judgments, one in the case of Munna Nai Vs. the State reported in 1997 CRI. L. J. 4553 and another in Makhan Barman Vs. State of West Bengal reported in (2014) 2 C Cr.L.R. (Cal) 288 as well as the judgment of the Hon’ble Supreme Court in the case of Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417. It is contended by the Learned Counsel that the compliance of the provisions of Section 52A of the NDPS Act, in Narcotic case is mandatory and it is non-compliance is illegal and the absence of which will entitle and accused to an acquittal.

Giving an anxious consideration to the argument raised by the learned counsel for the appellant we find that in the decision reported in State of Punjab

Vs. Balbir Singh reported in AIR 1994 SC 1872, the Apex Court has held that the non-compliance or failure to strictly comply the provisions of Sections 52 and 57 of the N.D.P.S. Act which deal with the steps to be taken after arrest and seizuer under the Act are not mandatory and if there is no compliance of those provisions the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. It was held by the Hon’ble Supreme Court that the provisions of Section 52 onwards of the NDPS Act which deal 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-examination of the independent witnesses in the NDPS Act makes the prosecution case unbelievable as it has been decided by the Hon’ble Supreme Court in the case of Ritesh Chakarvarti Vs. State of Madhya Pradesh reported in JT

2006 (12) SC 416.

In the case of Richhpal Vs. State (Delhi Administration) Reported in 1989 Criminal Law Journal (NOC) 51 while examining the various provisions of the NDPS Act, particularly Sections 41 to 55, the court after referring to various judgments of the Supreme Court has laid down that the court must consider the facts of each case in order to determine whether failure of prosecution to comply with any particular provision of the NDPS Act has the effect of creating any doubt regarding the prosecution case or not. It was held that there cannot be any mechanical application of law to the facts of the case and the statutory provisions introduced in the NDPS Act are not to be obviously ignored by the courts or by the prosecution but these provisions have to be kept in view only to see whether the prosecution case set up is truthful or not. In the case of Brijesh Kumar Gupta Vs.

Narcotics Control Bureau reported in 2014 CRI. L. J. 4203. The Delhi High Court has observed that presuming public witness was not present when the seizure was made, it would not render the seizure invalid. However, in the present case, the two independent witnesses namely Atanu Haldar and Bablu Sk. were made to sign the seizure list and the levels after the sample was drawn from the bag and sealed. However, notice was given to them but these witnesses did not appear before the court during the trial, therefore there is no miscarriage of justice. Considering the observations made by the Hon’ble Apex court of our country as well as the Delhi High Court we are of the opinion that in the instance case, the prosecution case cannot be thrown overboard on the mere fact that no public witnesses could be examined at the time of trial.

Finally it is submitted by the Learned Counsel for the petitioner that the Learned Trial Judge did not consider the mandate of the Hon’ble Supreme Court in the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5 SCC 161 the learned court below did not consider the actual quantity of heroine contained in the total seized quantity of 8.175 Kg. of Heroine alleged to have been recovered from the 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 Narcotic Drug or Psychotropic substance in that substance which must be taken into consideration for imposition of punishment. This would be relevant for determining whether the accused was in possession of contraband which was a “small quantity” or “commercial quantity” as defined under the Act. The punishment would therefore be commensurate with the quantity seized. The learned counsel for the NCB on the other hand argued that after the aforesaid decision the notification was issued by government of India stipulating that the entire weight of the material seized must be considered while ascertaining whether the contraband was more or less than the commercial quantity. However, this notification would not apply to the present case as it does not specify that it would operate retrospectively or in pending cases. Considering the rival submission of the learned counsel for both the sides, it is palpably clear that the judgment in the case of E. Micheal Raj which postulates that only the exact content with the narcotic Drug or Psychotropic substance in a seized quantity of material must be taken into account for imposing punishment. And in the instant case from the petition of complaint itself it is found that the actual quantity of heroin recovered from the accused person was 609.60 gm. which is much above the commercial quantity.

On appreciating the evidence in the present case we find that the appellant was obviously a carrier of the contraband. The small quantity which is stipulated under the Act is 5 gms. While the commercial quantity is 250 gms. The appellant was found to be in possession of 609.6 gm which is obviously more than the commercial quantity. Thus it could be safely concluded that the appellant has committed an offence which is punishable under Section 21-C of the NDPS Act. However, considering the actual amount of heroin seized from the possession of the accused which is more than the commercial quantity of 250 gms. We do hold that the proposition of law as enumerated in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau is not applicable in the facts and circumstances of the present case.

The aim and object of the 1985 Act, is to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, and to deter the illicit traffic in the said drugs and substances.

In the present case the narcotic drugs which was found in possession of the appellant as per the analysis report is 609.6 gms, is much higher than the commercial quantity. Thus we find that the ends of justice will be sub-served if we reduce the sentence of the accused appellant to 16 years rigorous imprisonment with fine of Rs.2 lakhs and in default of payment of such fine the appellant shall undergo simple imprisonment for 6 months more.

In view of the aforesaid the appeal is allowed accordingly as set out here in before.

Urgent certified copies of this judgment, if applied for, be given to the Learned Advocates for the parties upon compliance of all formalities.