Alauddin Sk. @ Helal @ Helu vs State Of West Bengal
2022 Latest Caselaw 1807 Cal

Item No. 33




                IN THE HIGH COURT AT CALCUTTA
                    Criminal Appellate Jurisdiction
                            Appellate Side

Present:
The Hon'ble Mr. Justice Joymalya Bagchi
                  And
The Hon'ble Mr. Justice Bivas Pattanayak


                            C.R.A. 502 of 2014
                        Alauddin Sk. @ Helal @ Helu
                                   Vs.
                           State of West Bengal


For the Appellant       :     Mr. Partha Sarathi Bhattacharyya, Adv.
                              Mr. Debangan Bhattacharjee, Adv.
                              Ms. Swarnali Saha, Adv.


For the State           :     Mr. Sanjoy Bardhan, Adv.

For the NCB             :     Mr. Pritam Roy, Adv.


Heard on                :     06.04.2022

Judgment on             :     06.04.2022


Joymalya Bagchi, J. :-

       Appeal is directed against judgment and order dated 25.04.2014

and 28.04.2014 passed by the learned Additional Sessions Judge and

Special Court under N.D.P.S. Act, 6th Court at Barasat, North 24-Parganas

in Case No. N-179 of 2006 convicting the appellant under Sections 18(b),

18(b) and 15(c) of the N.D.P.S. Act and sentencing him to suffer rigorous
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imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-,

in default, to suffer rigorous imprisonment for two years for the offence

punishable under Section 18(b) of the N.D.P.S. Act in respect of recovery

of 3.950 kgs. of opium at Barrackpore Railway Station Platform and to

suffer fourteen years of rigorous imprisonment and to pay a fine of Rs.

1,50,000/-, in default, to suffer rigorous imprisonment for three years for

the offence punishable under Section 18(b) of the N.D.P.S. Act with regard

to recovery of 21.500 kgs. of opium from the kitchen of the residential

house of the appellant at Kulgachi, Tehatta and to suffer rigorous

imprisonment for fourteen years and to pay a fine of Rs. 1,50,000/-, in

default, to suffer rigorous imprisonment for three years for the offence

punishable under Section 15(c) of the N.D.P.S. Act with regard to recovery

of 550 kgs. of poppy husk/straw in the granary attached to the residential

house of the appellant, as aforesaid.

      Appellant was called upon to answer the following charges:-

      "Firstly, that you on 23rd day of August, 2006 at about 15.15hours at

Barrackpore Railway Station Platform No. 1, had in your possession

3.950kgs. of Opium in a Nylon Side-bag which was hanging on your right

shoulder and on being intercepted by the NCB Officers, on demand, since

you failed to produce any valid document for possessing, keeping and

transporting the contraband interstate, you violated the provisions of Sec. 8

of the NDPS Act and thereby committed an offence punishable under Section

18(b) of the NDPS Act, and within the cognizance of this Sessions Court.
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      Secondly, that on 23rd day of August, 2006 at about 22.40 hours in

course of follow-up action on the basis of your disclosure, after the said first

recovery, a quantum of 21.500 kgs. of Opium could be further recovered

from your possession as those were kept in a plastic container at your

kitchen in your house at Kulgachi, Tehatta, Nadia, for which you also could

not produce any valid document for possessing, keeping and transporting

interstate of those quantum opium for which the same was seized by the

NCB Officers and thereby committed an offence punishable under Section

18(b) of the N.D.P.S. Act, and within the cognizance of this Sessions Court.

      Thirdly that on the aforesaid date, time and place you had in your

possession 550 kgs. of Poppy husk or Poppy Straw in your granary which

was recovered by the NCB Officers as per your indication and after recovery

on demand by the NCB Officers you failed to produce any valid document in

support of your such possession of those quantum of Poppy Husk or Poppy

Straw for which those Poppy Husk/Straw were also seized by the NCB

Officers and for that you violated the provision of Sec. 8 of the NDPS Act and

thereby committed an offence punishable under Section 15(c) of the NDPS

Act, within the cognizance of this Sessions Court."

      P.Ws. 3 to 7 are members of the raiding party. They were

intelligence officers who were attached to NCB EZU, Kolkata. On

23.08.2006

a specific information was received at 13:30 hours which was

recorded in writing and communicated to the superior officer. Upon

endorsement by the superior, movement order was issued and on the

strength of the movement order the officers left in two vehicles to the

Barrackpore Railway Station to work out the information. The team

reached the railway station at 15:15 hours. As per information, a person

was apprehended at the ticket counter adjacent to platform No. 1 of the

railway station. Officers disclosed their identity as NCB Officers. The

suspect was carrying a bag on his right shoulder. The team members

requested two of the onlookers to join the search as independent

witnesses. In front of independent witnesses the suspect was interrogated

and he disclosed his identity as appellant. He voluntarily handed over his

bag to the officers. Upon searching the bag a polythene packet containing

brown blackish sticky substance was recovered. Using the test kit it was

found that the substance contained opium. Accordingly, the offending

substance was seized and two samples drawn from the seized article were

kept in an envelope. The remainder of the seized article was kept in a

separate envelope. Weighment was taken and it was found that the article

seized is to the tune of 3.950 kgs. A seizure list was prepared and signed

by the appellant. Appellant further disclosed, in course of interrogation,

that narcotic substance was kept in his house. Accordingly, officers raided

the residence of the appellant on the same day at 22:15 hours. In course

of raid a white colour plastic container was found. On opening the

container blackish brown sticky substance was recovered. By using the

test kit it was confirmed that the substance was opium. Weighment was

made and it was found that the recovered substance suspected to be

opium weighed around 21.5 kgs. Samples were taken from the said seized

item and kept in a separate envelope. Thereafter, search was also

undertaken at the granary of the appellant and 93 gunny bags containing

poppy husk was recovered. Total weight of poppy husk recovered was 550

kgs. Samples were also taken from the seized poppy husk. Further

statements of the appellant were recorded by the intelligence officer.

Thereafter, the appellant was arrested.

P.W. 7, Monotosh Sarkar, was the leader of the raiding party. He

signed on the seizure list as the seizing officer. He proved source

information which was reduced into writing by him and was certified by

the Zonal Director, NCB marked as Exhibit-19. He also proved true copy

of the movement order which was endorsed by the Assistant Director,

NCB, stating P.W. 7, Monotosh Sarkar, intelligence officer, would lead the

team. He identified the seized packets as well as the samples produced

after chemical examination in court. He also identified the seals of NCB

and the Chemical Analyst. He stated that the samples had been sent for

chemical examination. He also stated he received the chemical

examination report.

P.W. 1, Subhendu Ghosh, is the Chemical Officer attached to

Customs House, Kolkata. He received three sample packets along with

three test memos for chemical analysis. He held chemical analysis and

prepared reports which were marked as Exhibits-1, 2 and 3 respectively.

Exhibits-1 and 2 show presence of opium in the tested samples while

Exhibit-3 records the sample comprised of poppy capsules straw

containing Morphine.

P.W. 2, Pradip Kumar Ghosh, lodged the complaint before the

Court.

Learned Counsel appearing for the appellant challenges the

conviction on the ground the independent witnesses have not been

examined. He also states there is no compliance of Section 42 of the

N.D.P.S. Act. Statements of the appellant recorded under section 67 of

the N.D.P.S. Act are inadmissible in law in view of Tofan Singh Vs. State

of Tamil Nadu1 and cannot be used against the appellant. Hence, he is

entitled to an order of acquittal.

Mr. Pritam Roy who is empanelled with Narcotic Control Bureau is

requested to appear in the matter. He argues P.W. 1 to 7 have proved the

prosecution case. Chemical examiner's report shows the recovered items

contained opium and poppy straw respectively. Hence, non-examination

of independent witnesses does not affect the credibility of the prosecution

case.

We have considered the aforesaid submission in the light of the

evidence on record.

In view of the law declared in Tofan Singh (supra), this court has

not taken into consideration the statements of the appellant recorded

(2013) 16 SCC 31

under section 67 of the N.D.P.S. Act but has examined the validity of the

conviction on the basis of other evidence on record.

P.W. 1 to 7 are members of the raiding party. They unequivocally

state on receipt of specific intelligence, the information was duly recorded

and intimated to the superior. Upon obtaining endorsement from the

zonal director, the team under the leadership of P.W. 7 proceeded to the

spot. Movement order endorsed by the assistant director and marked as

Exhibit-20 has been produced in court.

In view of the aforesaid material on record, I am of the opinion

prior information was duly recorded and communicated to the superior

officer before the raiding party left the office for search. Hence, compliance

of section 42 (2) of the N.D.P.S. Act has been duly proved. With regard to

non-examination of the independent witnesses, I note the evidence of P.W.

1 to 17 is clear, convincing and inspires confidence. Nothing was

elucidated during cross-examination which improbabilises the

prosecution case. Official witnesses are not inimical of the appellant and

no reason for false implication has been remotely suggested. When the

evidence of official witnesses are trustworthy and inspire confidence, non

examination of independent witnesses would not erode the truthfulness of

the prosecution case.

Under such circumstances, I am of the opinion, prosecution case

has been proved beyond doubt.

In the light of the aforesaid discussion, I uphold the conviction of

the appellant.

Coming to the issue of sentence, I note that the appellant had

already served out the substantive sentences imposed on him. In such

view of the matter, I modify the default sentences imposed on the

appellant and direct in the event appellant has not paid the fine, imposed

on him, in default, he shall suffer rigorous imprisonment for six months

each on each count.

With the aforesaid modification as to the sentence, appeal is

disposed of.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon him in terms of section 428 of the Code of Criminal Procedure.

Lower court records along with copies of this judgment be sent

down at once to the learned trial Court as well as the Superintendent of

Correctional Home for necessary compliance.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Bivas Pattanayak, J.)                               (Joymalya Bagchi, J.)




tkm/sdas/PA (Sohel)