Calcutta High Court (Appellete Side)
Jaynal Abedin @ Jayanal & Anr vs Narcotics Control Bureau on 8 December, 2022
Item No. 94
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Siddhartha Roy Chowdhury
C.R.A. 888 of 2013
Jaynal Abedin @ Jayanal & Anr.
-Vs-
Narcotics Control Bureau.
For the Appellant : Mr. Arnab Chatterjee, Adv.
For the NCB : Mr. Mayukh Mukherji, Adv.
Heard on : 8th December, 2022.
Judgment on : 8th December, 2022.
Joymalya Bagchi, J. :-
1.
Appeal is directed against the judgment and order dated
01.10.2012 passed by the learned Additional Sessions Judge, Special
Court under NDPS Act, 6th Court, Barasat, 24-Paraganas in Case No.81
of 2004 corresponding to NCB Crime No.17/NCB/Kol/04 convicting the
appellant No.1 for commission of offence punishable under Section
20(b)(ii)(C) of the NDPS Act and sentencing him to suffer rigorous
imprisonment for 14 years and to pay fine of Rs.1,50,000/-, in default,
to suffer rigorous imprisonment for two years more and convicting the
appellant No.2 for commission of offence punishable under Section
20(b)(ii)(C) read with Section 29 of the NDPS Act and sentencing him to
suffer rigorous imprisonment for 14 years and to pay of Rs.1,50,000/-,
in default, to suffer RI for two years more.
2. Prosecution case as alleged against the appellants is to the
effect that on receipt of specific information which was reduced into
writing and intimated to Superior Officers, a batch of NCB Officers and
staff reached at Kamarhati Municipality on B.T. Road at 4.00 AM on
05.09.2004. At 7:15 AM, G.C. Chatterjee (PW7), Superintendent of NCB,
EZU, Kolkata, joined the raiding party.
3. Source identified a white coloured gas tanker bearing
registration No.WB 39-6542 as the offending vehicle. The vehicle was
intercepted by the officers at B. T. Road while it was crossing Kamarhati
Municipality and proceeding towards Dunlop. The raiding party
informed the driver of the vehicle about their intention to search the
vehicle. Driver disclosed his identity as appellant no.1. He also admitted
he was carrying ganja. Raiding party opened the lid of the tanker and
found 221 rectangle slabs of flowering tops of cannabis plant believed to
be ganja. Each slab was wrapped in polythene sheet. The consignment
was inventorised, separately marked and weighment chart was
prepared. On weighment the total weight came out as 2783.50 kgs. Out
of the consignment 13 slabs were selected and samples in duplicate of
25 gms each were drawn from each of the slabs. Samples were
separately sealed, packed and labelled. Search-cum-seizure list was
prepared.
4. Notices under Section 67 of the NDPS Act were served upon
the first appellant. He responded to the notices and made voluntary
statements which were reduced into writing. Thereafter, appellant No.1
was arrested.
5. Upon enquiry from the registration department, registration
certificate of the seized vehicle was obtained. Ownership of the vehicle
stood in the name of appellant no.2. He was issued notice under Section
67 of NDPS Act but failed to respond. Investigation also revealed
involvement of one Munna Singh @ Pakhi Mia.
6. Complaint was filed against the appellants and Munna Singh
@ Pakhi Mia. Munna Singh @ Pakhi Mia absconded and was declared a
proclaimed offender. Charges were framed against appellant No.1 under
Section 20(b)(ii)(C) of the NDPS Act and under Sections 20(b)(ii)(C)/29 of
the NDPS Act against appellant no.2. Appellants pleaded not guilty and
claimed to be tried.
7. In the course of trial prosecution examined 7 witnesses and
exhibited a number of documents. In conclusion of trial, trial judge by
the impugned judgment and order convicted and sentenced the
appellants, as aforesaid.
8. Subsequently, Munna Singh @ Pakhi Mia was apprehended
and in a separate trial he was acquitted.
9. Mr. Arnab Chatterjee, learned Advocate for the appellants
submits prosecution did not examine the independent witnesses. Solely
relying on the version of official witnesses, conviction came to be
recorded. Samples were not drawn from all the slabs. Hence, it cannot
be said 2783.50 kgs. of ganja was recovered from the appellants. He
prayed for acquittal.
10. Mr. Mayukh Mukherjee, learned Advocate for the NCB submits
the official witnesses have proved the prosecution case beyond doubt.
Failure to examine independent witnesses do not affect the credibility of
the prosecution case. Samples were drawn from the seized consignment
and chemical examiner's report (Ext.4) showed presence of ganja in the
seized samples. Hence, prosecution case is proved beyond doubt.
11. I have considered the evidence on record.
12. PW1 (Debdutta Chatterjee), PW2 (Monotosh Sarkar), PW5
(Rathin Biswas) and PW6 (Parimal Banerjee) were members of the
raiding party. They deposed on receipt of information the same was
diarised and forwarded to Superior Officer. Upon obtaining authorization
on 05.09.2004 at 4.00 AM, a batch of NCB Officers proceeded to
Kamarhati Municipality on B.T. Road. Later, Superintendent, NCB (PW7)
joined them. Upon identification by source they stopped a white
coloured gas tanker bearing registration No.WB 39-6542. Driver of the
tanker identified himself as appellant no.1. He confessed he was
carrying ganja. On opening the tanker, 221 slabs of flowering tops of
cannabis plant i.e. ganja was found. Upon testing in the field drug
detection kit, sample tested positive for ganja. The slabs were
inventorised, separately marked and weighed. Total weight was 2783.50
kgs. 13 slabs were selected. Samples in duplicate, i.e. 26 samples in all
of 25 gms each were drawn. Samples were sealed and labelled. A search-
cum-seizure memo was prepared. Appellant no.1 was given notices
under Section 67 of the NDPS Act. He made statements before NCB
Officers which were reduced into writing (Exts.2, 3, 5, 9 and 10).
Thereafter, he was arrested.
13. Enquiry was made with regard to ownership of the seized
vehicle. Certificate of registration and fitness as well as insurance
certificate were obtained (Ext.17 collectively). Ownership of the vehicle
stood in the name of appellant no.2.
14. Seized samples were sent for chemical examination. Seized
alamats were disposed of in terms of the order of the Court by Drug
Destruction Committee. Certificate of destruction under Section 52A of
the NDPS Act was produced (Ext.18).
15. PW7 ( G. C. Chatterjee) was posted as Superintendent, NCB
EZU, Kolkata at the material point of time. At 7.15 AM he joined the
raiding party. He was present at the time of recovery. He put his
signature on the seizure list and the labels fixed on the seized samples.
He issued letter to Regional Transport Officer, Durgapur City Centre for
ascertaining ownership of the seized vehicle (Ext.19). He received reply
(Ext.20).
16. PW3 (Parimal Banerjee) was posted as Chemical Assistant,
Grade-I, Chemical Laboratory at Customs House, Kolkata. He examined
the samples. He deposed each samples responded positive to cannabis
and had characteristics of ganja. He proved the reports (Ext.4
collectively).
17. PW4 (Debdutta Chatterjee) submitted written complaint.
18. Evidence of PWs.1, 2, 5 and 6 i.e. members of the raiding party
unequivocally show recovery of a large volume of ganja from a tanker
bearing registration No.WB 39/6542 which was driven by appellant
no.1. Their depositions finds support from the contemporaneous
documents prepared at the spot viz., inventory, search-cum-seizure list
etc.
19. Their ocular version is corroborated by PW7, a gazetted officer
who joined the raiding party and was present at the time of recovery.
20. In view of the consistent evidence of the official witnesses with
regard to recovery, I am of the opinion non-examination of the
independent witnesses do not affect the credibility of the prosecution
case.
21. Out of 221 slabs recovered from the vehicle which was
suspected to be ganja, 26 samples were drawn randomly from 13 slabs.
The samples were sent for chemical examination. PW3 examined the
samples. He proved the reports which show presence of ganja. Hence,
recovery of ganja from appellant no.1 is proved beyond doubt.
22. In the course of enquiry, PW7 sent requisition to the Regional
Transport Authority to ascertain the ownership of the seized vehicle. He
received reply from the said authority. Certificate of registration showed
appellant no.2 was the owner of the vehicle. In the course of trial no
credible explanation was offered by appellant no.2 with regard to use of
his vehicle for transportation of narcotics. On the other hand, he took a
bald and untruthful plea that he was not the owner of the vehicle.
23. Under such circumstances, I am of the opinion prosecution
case against appellant no.2 is also proved beyond doubt.
24. Hence, conviction of the appellants are upheld.
25. Coming to the issue of sentence, I note some irregularities in
the drawing of samples. Samples were not drawn from all the slabs. It
had been drawn from 13 slabs only. Hence, it cannot be said the
prosecution has been able to prove presence of ganja in all the slabs
weighing 2783.50 kgs. in all. As the 13 slabs from which samples were
drawn weighed more than 20 kgs., this irregularity though not affecting
the conviction would have an impact on the sentence imposed on the
appellants.
26. In the light of the aforesaid discussion, I modify the sentence
imposed on the appellants and direct that they shall suffer rigorous
imprisonment for ten years each and to pay fine of Rs. 1,00,000/- each,
in default, to suffer rigorous imprisonment for one year more.
27. With such modification as to sentence, appeal is disposed of.
28. Period of detention suffered by the appellants during
investigation, enquiry and trial shall be set off against the substantive
sentence imposed upon them in terms of Section 428 of the Code of
Criminal Procedure.
29. Bail bonds of the appellants are cancelled and they are
directed to forthwith surrender and serve out the reminder of the
sentence, failing which the trial court shall issue appropriate processes
for execution of the sentence in accordance with law.
30. Let a copy of this judgment along with the lower court records
be forthwith sent down to the trial Court at once.
31. Photostat certified copy of this judgment, if applied for, shall be
made available to the appellant upon completion of all formalities.
I agree.
(Siddhartha Roy Chowdhury J.) (Joymalya Bagchi, J.)
as/PA
