Singhasan Chowdhury vs State

R. Bhattacharyya, J.—The Appellant has been convicted of offences punishable under Sections 46A of the Bengal Excise Act and u/s 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short NDPS Act) vide judgment dated May 16, 1989 and had been sentenced to undergo 10 years Rl and to pay a fine of rupees one lakh and, in default, to undergo further Rl for a period of two years on the first count and similarly sentences have been awarded on the second count with the directions that the substantive sentences of imprisonment shall run concurrently. The Appellant has preferred this appeal challenging the order of conviction and sentence.

Facts, as have come out in the trial, in brief compass, are that on June 1, 1987 at about 7 a.m., the O.C. of E.I.B. Check Post, Bandel along with other officials intercepted the Appellant with the suit case. The Appellant, when challenged, by the prosecuting party, opened the suit case and from there a substantial quantity of Narcotics was recovered. The contraband articles were taken possession of by the prosecuting party under seizure. The sample was taken on weighment of the Ganja and the Charas recovered from the suit-case weighing about 4 Kgs. of Ganja and 6 gms. of Charas. He converted the samples as well as the remaining contraband articles into sealed parcels which in due course transmitted to the chemical examiner for his opinion and report. It is needless to say that the prosecuting party sought for the assistance of the public witnesses to attest the seizure which they refused. The accused subscribed his signature to the seizure list followed by further signature of the accused obtained on the label of the sample besides the label on the suit-case.

The railway ticket was also taken possession of by Mr. Raha from the Appellant.

The learned Additional Sessions Judge brought home the offence to the Appellant on the statements of the prosecution witnesses.

The learned Counsel for the Appellant has vehemently argued that in the present case, all the mandatory provisions, as engraved in the NDPS Act have been consciously and deliberately violated by the Investigating Officer and, thus, the Appellant deserves to be acquitted. He has studiously canvassed to support the cause of the Appellant that the officer concerned was statutorily obliged to comply with the requisite conditions of the NDPS Act and by the reason of his failure to attest the search and seizure by public witnesses, before effecting recovery, the present case is a fatal flow. There are two broad features in the case one of which has assumed considerable dimension while the other is of secondary importance.

To dislodge the order of conviction and sentence he has strongly relied on State of Punjab v. Balbir Singh. According to the learned Counsel for the Appellant that provisions of the NDPS Act have not been complied with, the result being prosecution is nonest. He has made reference to Section 50 of the NDPS Act, which requires that "if a Police Officer without any prior information, as contemplated under the provisions of the NDPS Act, makes search or arrest a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Code of Criminal Procedure and when such search is contemplated at that stage Section 50 of the NDPS Act could not be attracted and the question of compliance with the requirements there under would not arise. If during search or arrest there is a chance of recovery of any Narcotic Drug or Psychotropic Substance then the Police Officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered Officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the Act." Therefore, it becomes obligatory on the part of the officer to comply with the provisions of the NDPS Act. The compliance with the provisions of Section 50 of the said Act is a sine qua non. In the present case, the question of any choice being given to the Appellant for his being produced before any Magistrate or Gazetted Officer for taking his search did inevitably arise for the procedure prescribed by law. The question of securing the attendance of the public witness in respect of an offence alleged to have been committed is inconsequential. The legislature in its ample wisdom framed the legislation on the modalities of the international convention where adequate safeguards were provided before a person could be robbed of his liberty. Considering the gravity of the offence against the society such a rigid procedure was reckoned to in the statute by the legislature in its ample wisdom. No explanation has been furnished by the prosecution for the noncompliance with the statutory provisions of the NDPS Act. The ratio decidendi in State of Punjab v. Balbir (Supra) is a bottleneck for the prosecution where their Lordships by the celebrated judgment have decided about the fulfilment of the conditions of the NDPS Act in connection with search and seizure. It is manifest from the record that there was a suggestion by the accused that he sought for the presence of a Gazetted Officer or a Magistrate for causing search. Of course, it is a suggestion which has been denied by the prosecution but still then the prosecution cannot cross the barrier of the provisions of the NDPS Act without compliance. This is the only point which has been argued by the learned Counsel for the Appellant.

To contradict the argument, the learned Counsel for the State Mr. Ghosh has taken us through the evidence that attempt was made by the prosecuting party to secure the presence of the public witnesses in vain. Therefore, the search and seizure fixing the accused with the crime is illegal, in particular, when the articles seized were found to be contraband. However, the State may say, the law as is decided by the Supreme Court in State of Punjab Vs. Balbir Singh, (per K. Jayachandra Reddy, J.)has created an insurmountable barrier for the prosecution to cross the hurdle for non-compliance.

For the foregoing reasons we cannot help holding that the conviction of the Appellant has no legal mooring. This is the reason for which we cannot accept the Order of conviction and sentence. We, therefore, set aside the order of conviction and sentence of the Appellant and allow the appeal. The Appellant shall be set at liberty if not wanted in connection with any other case.

N.A. Chowdhury, J.: I agree.