Ashfaque Ahamed vs The State Of West Bengal
2021 Latest Caselaw 5547 Cal

              IN THE HIGH COURT AT CALCUTTA
           CRIMINAL MISCELLANEOUS JURISDICTION
                      APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE HARISH TANDON

THE HON'BLE JUSTICE TIRTHANKAR GHOSH


                          C.R.M. 954 of 2021


                         Ashfaque Ahamed
                                -vs.-
                      The State of West Bengal

For the Petitioner            :     Mr. Sekhar Kumar Basu, Sr. Adv.
                                    Mr. Soubhik Mitter,
                                    Mr. Sayan Mukherjee

For the State                 :     Mr. Sanjoy Bardhan,
                                    Ms. Manisha Sharma

Judgment on                   :     08.10.2021



Tirthankar Ghosh, J:-

      The present application for bail has been preferred in c onnection with

ST-2(5)19 of 2019 arising out of Anandapur Police Station Case no.

283/2017 dated 24.11.2017 under Section 21(c)/29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 presently pending before the

learned Judge, Special Court under NDPS Act and Additional Sessions

Judge, 12th Court, Alipore, 24 Parganas (South). The aforesaid case was

registered on the basis of a complaint addressed by one Ujjwal Ghosh, S.I. of
                                        2


Narcotic Cell D.D. to the Officer-in-charge of Anandapur Police Station

which is extracted below:


      "Beg to submit that today (24.11.2017) at about 6.00 hrs received

credible source information that some Heroin seller/ supplier would come to

sell/supply Heroin in the vicinity of Anandaupr PS area in the morning on

24/11/2017

. The information was reduced to writing and was forwarded to

O.C, Narcotic Cell, D.D. A raiding team (as per attached permission letter

dt.24.11.2017) was formed and took permission of AC. Narcotic Cell., DD at

about 08.10 hrs to conduct a raid. At about 08.30 hrs left office/Lalbazar for

the spot along with raiding team, source, weighing scale, narcotic drug testing

Kits, packing materials (including brass seal of DC, DD Special) and other

accessories.

At about 09.10 hrs we reached near Oasis Nature Apartment on

Chowbaga Road Anandapur P.S. area. Sources led us to the spot and

maintained watch. At about 9.40 hrs source pointed out towards three male

persons and one female who were coming along Chowbaga Road from E.M.

Byepass side. Undersigned detained them with the help of other raiding team

members including lady police on the road in front of Oasis Nature Apartment

at 266, Hossenpur, Chowbaga Road under Anandapur P.S, Kol-107 and

disclosed our identity, and purpose of detention.

Meanwhile a small crowd gathered there, the undersigned requested

every one, present there, to stand witnesses of search and seizure under

NDPS Act. Two persons came forward voluntarily to stand witnesses as per

seizure list dated 24/11/2017.

On being asked the detainees disclosed his name as 1. Ashfaque

Ahmed (27), S/O. Md Seraj Ahmed of 4/4, East Yard, CPT Qrts, Khidderpore,

P.S.- SPPS, Kol-23 2. Taherul Islam (28), S/O- Lt. Abdul Samad, Vill-Nowda,

P.O- Baharyl, P.S- Hemtabad, Dist-Uttar Dinajpur 3. Baidyanath Burman (38)

S/O- Gopal Burman of Vill- Piplan, P.O- Birgai, P.S- Raigunj, Dist- Uttar

Dinajpur. 4. Joystna Barman (45), W/O- Baidyanath Barman Vill-Piplan, P.O.-

Birgai, P.S- Raiganj, Dist-Uttar Dinajpur.

Then, the undersigned gave the written option to the detained persons

informing about their legal rights to be searched in presence of a Ld.

Magistrate or a Gazetted Officer. The undersigned explained the meaning &

terms of Gazetted officer and Magistrate to the detainee. They agreed to be

searched on the spot in presence of a Gazetted officer. They refused to go

anywhere else. I searched for a gazette officer in the locality, but failed to find

out any one.

I informed my superior officers regarding the whole matter. At about

12.00 hrs Inspector Mayuk Moy Roy, Addl. O/C Aandapur P.S came to spot in

uniform by his official car. I introduced him as Gazetted officer to the

detainees and witnesses and apprised him about the facts so far. Addl. O/C

Anandapur P.S gave 2nd option, written by him to the detainees.

The detainees again re-confirmed to be searched on the spot in

presence of Gazetted officer and the gazetted officer himself explained the

meaning of terms of Gazetted officer and Magistrate to the detainees. The

detainees also wanted to search the person of the searching officer and other

raiding team member prior to their own search. Lady detainee also wanted to

search the person of Lady Police Kuheli Sarkar prior to her own search. They

did the same but found nothing like narcotic substance from the possession of

the undersigned and other raiding team member except our personal

belongings.

After that the Undersigned started to search the detainees on the spot

in presence of all and found one black coloured polythene packet from the left

hand side pocket of wearing trouser of accused no-1 namely Ashfaque

Ahmed. Undersigned opened the same and found brown coloured powder in a

heat sealed polythene packet said to be Heroin weighing about 256 grams as

mentioned in seizure list dated 24/11/2017. Also found cash Rs 160/- as

p.p. Then searched accused no-2 namely Taherul Islam (28) and found brown

coloured powder in a heat sealed polythene packet said to be Heroin weighing

about 20 grams as mentioned in seizure list dated 24/11.2017. Also found

cash Rs 80/- as p.p. then searched accused no. 3 namely Baidyanath

Burman and found brown coloured powder in a heat sealed polythene packet

said to be Heroin weighing about 20 grams as mentioned in seizure list dated

24/11/2017. Also found cash Rs 50/- from him as p.p. Then lady police LSI

Kuheli Sarkar searched female accused namely Jyostna Barman maintaining

decency and decorum and found one red coloured velvet hand bag with white

coloured zip from her right hand immediately handed over the same to the

under signed. Under signed opened the same and found brown coloured

powder in a heat sealed polythene packet said to be Heroin weighing about

20 grams as mentioned in seizure list dated 24/11/2017. Also found cash Rs

110/- from this bag as p.p.

I tested some portion of the contraband drugs/ powder from each

packet after puncturing the heat sealed transparent packet with the help of

testing kits and found all are positive for the presence of Heroin. I took weight

of the contraband drug with the help of weighing machine and found 256

grams + 20 grams+20 grams + 20 grams = 316 grams of brown coloured

powder said to be Heroin. The punctured portion was repaired. Took sample 5

grams of brown coloured powered from each mother exhibits and packed

labeled and sealed in separate envelope and marked as A1, C1, E1 & H1.

The narcotic drugs and cash were seized from the possession of the

above noted accused Persons under a proper seizure list dated 24/11/2017.

Then undersigned packed labeled and sealed the drugs & cash separately

and marked as A, B, C, D, E, F, G, H & I and on the spot in presence of the

G.O, witnesses and the accused persons. All of them have put their

signature/LTI on the seizure list and on all the labels.

The detainees could not render any satisfactory explanation for

possession of the above noted drugs. As such they were arrested at the place

of detention at about 16.30 hrs and Memo of arrest and Inspection Memo

were served.

Undersigned also examined the witnesses and the Gazetted officer at

the spot and recorded their statements.

Then undersigned have come to this police station along with the

arrested accused person, raiding team, seized items in sealed condition,

seizure list and other relevant case documents prepared by me and handed

over the same before you with a request to prepare an Inventory list U/S

NDPS Act.

Therefore, I request your good self to start a case U/s- 21(C)/29 NDPS

Act against 1. Ashfaque Ahmed (27), S/O. Md Seraj Ahmed, 2. Taherul Islam

(28), S/O- Lt. Abdul Samad, 3. Baidyanath Burman (38) S/O- Gopal Burman

4. Joystna Barman (45), S/O- Baidyanath Barman for possession and supply

of Heroin and oblige."

Records reflect that on completion of investigation the Investigating

Agency submitted charge-sheet and after framing of charge the evidence of

one of the witness has already been completed.

Mr. Basu, learned senior Advocate appearing for the petitioner

submitted that there has been gross illegality committed in the instant case

inasmuch as the initial test report which was furnished by the West Bengal

State Drug Control and Research Laboratory reflected that the samples

which were sent by the investigating Officer did not contain 'Heroine' and as

such do not come under the purview of the NDPS Act., 1985. Learned

counsel submitted that surprisingly, the investigating Officer of the case

preferred an application before the learned Special Court on 02.02.2018 and

the learned Court by an order dated 03.02.2018 without assigning any

reason was pleased to send the remnant samples for a second test as prayed

for by the investigation Officer to be conducted by the Central Forensic

Science Laboratory. According to the learned Advocate, although,

subsequent test of the Central Forensic Science Laboratory reflected that the

samples which were sent were covered under the NDPS Act, 1985 but there

has been complete non-compliance of the guidelines laid down by the

Hon'ble Supreme Court in the case of Thana Singh -Vs. - Central Bureau

of Narcotics reported in (2013) 2 SCC 590. In support of his contention the

petitioner submitted that there are no provision under the NDPS Act for re-

testing and the only process through which an investigating agency is

entitled to invoke such process of second testing is by adhering to paragraph

27 of the aforesaid judgment which is as follows:

"27. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re- sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re- testing/re-sampling is strictly prohibited under the NDPS Act."

It has been emphasized that as the Investigating Agency has acted

contrary to the manner set out in the aforesaid guidelines the second test

cannot be taken into account and the petitioner as such is entitled to be

released on bail.

Mr. Bardhan, learned advocate appearing for the State opposes the

prayer for bail and submitted that the provision of Section 37 of the NDPS

Act are attracted in the present case as the quantum of seizure of

contraband (Heroine) is of commercial quantity. Learned Advocate further

submitted that no question has been raised by the petitioner till date

regarding the seizures which have been affected from him or his associates.

It has been also brought to the notice of the Court that earlier the present

petitioner's bail was rejected on 08.06.2018 in CRM No. 3491 of 2018 and

the same was after the charge-sheet was filed on 19.04.2018 and cognizance

was taken by the learned Special Court.

In State of Haryana -Vs. - Ranbir reported in (2006) 5 SCC 167 it

has been observed:

"12. ...A decision, it is well settled, is an authority for what it

decides and not what can logically be deduced therefrom."

In Thana Singh (supra) the Hon'ble Apex Court was considering a

case where the accused was languishing in prison for more than 12 years

awaiting commencement of his trial under the NDPS Act. Further the said

provisions were interpreted in the background that such application for re-

testing are often received by the Court at advance stage of trial and after

significant lapse of time and the Court by taking resort to the provisions of

Section 79 and 80 of the NDPS Act, which permit application of the Customs

Act, 1962 and Drugs and Cosmetic Act, 1940 allow such retesting. The

Hon'be Apex Court, thus, was of the opinion that as in respect of Section

25(4) of Drugs and Cosmetic Act, 1940 and Section 13(2) of Food

Adulteration Act, 1954 and rule 56 of the Central Excise Rule, 1944 a time

period of 30, 10 and 20 days respectively have been fixed for filing such

application for retesting, the absence of such provisions in the NDPS Act

should not enure any benefit to the Investigating Agency for retesting of the

sample.

In the instant case, we find that seizure was affected on 24.11.2017

and prayer was advanced before the learned Court for sending the sample to

the State Drug Control and Research Laboratory on 25.11.2017 which was

allowed by the Court on the same date. The test report reflects that on

30.11.2017 from the official forwarding letter and inspector's memo, the

samples were received on 30.11.2017. The test report further reflects that

the period of testing by the authorities were from 03.12.2017 to 04.01.2018

and the said report was prepared on 01.02.2018. On 02.02.2018 the

Investigating Officer of the case made prayer for further testing and the

learned Special Court allowed such prayer on 03.02.2018. As such the time

period and the schedule so mentioned in the judgment of Thana Singh

(supra) has not been violated by the Investigating Agency. Moreover, the fact

of the present case reflects that the said prayer for retesting was advanced

at a very early stage that is in course of investigation prior to submission of

charge-sheet.

It would not be out of place to state that when the application for

retesting was preferred the records of the learned Special Court already

contained documents including the FIR which stated that the initial testing

kit in respect of the samples so seized from the petitioners and his

associates responded positive to the test of 'Heroine' as such there were

reasons for investigating Officer to have suspicion regarding the finding of

the State Drugs and Research Laboratory which reflected results as

"negative for the presence of Heroine" and "do not contained Heroine". The

application made by the Investigating Officer specifically mentioned that the

State Drugs and Research Laboratory did not mention the actual status of

the said "contraband/drug" and thus prayed for sending the remnants in

sealed condition to the Central Forensic Sciences Laboratory for further

testing. The learned special Court while considering the application

preferred by the Investigating Officer dated 02.02.2018 on 03.02.2018

categorically recorded "I.O. S.I. Kalyan Biswas has submitted prayer for

sending the remants of the samples in sealed condition marked 'A1', 'C1',

'E1', 'H1' to Central Forensic Laboratory, 30, Gora Chand Road, Kol-14 for

further test regarding presence of codeine/morphine like narcotic substances,

A Xerox Copy of Letter received from Director, State Drug Control and

Research Laboratory along with Xerox Copy of Report of Analysis by said

Laboratory is enclosed with the application.

Heard Ld. P.P.-in-Charge.

Perused the petition and its enclosure. Considered.

Prayer for further examination of the remnants of the samples in sealed

condition is allowed to be held at Central Forensic Science Laboratory as per

prayer of the I.O.

I.O. is accordingly directed to take steps for sending the same to

C.F.S.L., Kolkata."

The circumstances under which the Investigating Officer advanced the

prayer obviously at that stage of the investigation is extremely exceptional

circumstance as the report of the State Drug and Research Laboratory was

contrary to the evidence so found at the spot by the test kit used by the

Investigating Agency which definitely raised suspicion and called for

retesting or further test.

The order passed by the learned Special Judge reflects that the

learned Special Judge perused the petition along with enclosures considered

the same and thereafter allowed such prayer. Perusal by the learned Special

Judge will obviously mean perusal of the report of the State Drugs and

Research Laboratory, the contention and reason assigned by the applicant

being the Investigating Officer of the case and the First Information Report

which was part and parcel of the Court record at the relevant point of time.

Further the petitioner had the liberty to canvas such point at the time

of consideration of charge, having accepted the charge the petitioner cannot

ventilate such grievance to be considered in a bail application when evidence

is being recorded and the trial of the case is in progress.

In view of the provisions of Section 37 of the NDPS Act which calls for

satisfaction of the Court for believing that the accused is not guilty of the

offences, I am of the opinion that the privilege of bail cannot be extended to

the petitioner, taking into consideration the materials collected by the

Investigating Agency and the stage of the case until and unless the evidence

of the expert is rebutted in course of the trial.

Accordingly, the bail application being CRM No. 954 of 2021 is

dismissed.

However, learned Trial Court is directed to proceed with the trial by

adhering to the provisions of Section 309 of the Code of Criminal Procedure.

All parties shall act on the server copy of this order duly downloaded

from the official website of this Court.

Urgent photostat certified copy of this order, if applied for, be given to

the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)