Namita Valla vs The State Of West Bengal
2022 Latest Caselaw 2976 Cal

                 IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION

Before:

The Hon'ble Justice Ananda Kumar Mukherjee


                              C.R.A. No. 697 of 2004

                              Namita Valla
                                    Vs.
                         The State of West Bengal

For the Appellant:            Md. Mokaram Hossain, Adv.
                              Mr. K.P. Mukhopadhyay, Adv.
                              Mr. Saumen Gayen, Adv.
                              Mr. Sandipan Maity, Adv.


For the State:               Mr. Binay Kumar Panda, Adv.
                             Mr. Pravash Bhattacharya, Adv.
                             Mr. Pratick Bose, Adv

Heard on :                   05.04.2022.



Judgment on:                  19.05.2022.



     Ananda Kumar Mukherjee, J. :-

1.   This appeal has been preferred by the convict appellant under section

374 (2) of the Code of Criminal Procedure, 1973, assailing judgment and order

of conviction dated 15.9.2003 and sentence dated 16.9.2003 passed by learned

Judge Special Court under NDPS Act Birbhum, Suri, in connection with C-

Case no. 10 of 1996 whereby the appellant was convicted for the offence

punishable under section 20(b) of the NDPS Act and sentenced to suffer
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rigorous imprisonment for 5 years and to pay a fine of Rs.20,000/- in default to

suffer rigorous imprisonment for six months.

2.       The impugned judgment has been assailed on the grounds that the

conviction and sentence passed against the appellants is bad in law and due to

failure on the part of the Learned Trial Court in appreciating the evidence in its

true perspective. It is case of appellant that prosecution has failed to prove the

charge against the appellant under section 20(b) of the NDPS Act beyond

reasonable doubt and that no independent witness has been examined on

behalf of the prosecution and further more prosecution has not been able to

establish that the mandatory provisions of section 50 of the NDPS was

compiled with at the time of alleged search of the female accused and seizure of

the contraband substance.

3.       Mr. Hossain, learned advocate argued on behalf of the appellant that

prosecution has miserably failed to establish the charge but learned trial judge

without considering the non-compliance of the mandatory provisions of the

NDPS Act has convicted and sentenced the appellant which, is liable to be set

aside.

4.       Learned advocate for the State/respondent submitted that admittedly the

appellant is a female accused but the contraband substance consisting of 8

Kgs. of Ganja (cannabis) was seized from her possession while she was carrying

it in a suitcase and had entered the house of co-accused Benarasi Das alias

Bona Das at Choto line para. It is argued that a Gazetted Officer was present at

the time search and seizure was carried out and the provisions under section

50(2) of the NDPS Act was complied. Learned prosecutor further argued that

the evidence adduced by the prosecution witnesses is cogent and consistent in

nature and the charge has been proved against the accused person beyond

shadow of doubt. It is urged that there is no infirmity in the impugned

judgment of conviction and sentence passed against the appellant.

5. I have considered the arguments advanced by the learned advocates for

the appellant and the respondent/ State. The fact of the case, in brief, is that

on 5.8.1996 at 3:15 P.M. police from Ahamedpur Fari, under Sainthia P.S

along with Circle Inspector and O.C Ahamedpur Fari proceeded to Choto line

para Rail quarters to work out a secret information that a woman having

Narcotic substance in her possession was proceeding to the house of accused

Benarasi Das at Choto line para. The appellant was found entering the house

of Benarasi Das with a suitcase in her hand. On interrogation she disclosed her

name as Namita Valla the police thereafter asked the appellant/accused to

open the suitcase and it was found that she was carrying 8 Kgs of Ganja

wrapped in green polythene packets inside the suitcase. The ganja was seized

and weighed in presence of witnesses and samples were collected in small

packets which was sealed and lebelled. The contraband substance appearing to

be ganja was seized under a seizure list. Both Namita Valla and Benarasi Das

were arrested and were taken to Ahamedpur police outpost (Fari) with the

seized material.

6. A.S Mondal, Sub-Inspector of police lodged a written complaint at

Ahamedpur police outpost. S.I Deb Narayan Datta (PW-8) took up investigation

as endorsed by the officer-in-charge of Sainthia Police Station. The samples

were sent for forensic examination. After completion of investigation and

collection of forensic report, charge sheet was submitted under section 20 (b)

and section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985

for unlawful possession of ganja and transporting of the same to the house of

accused Benarasi Das. Charge was framed against two accused persons under

section 20 (b) for possession of ganja without valid authority and in

contravention of NDPS Act and under section 25 of the NDPS Act against

Benarasi Das for allowing Namita Valla to bring the contraband substance to

his premises.

7. In order to substantiate the charge prosecution has examined eight

witnesses. S.I A.Kashem of Sainthia P.S who received the written complaint

and registered the formal FIR has been examined as PW-1. He deposed that S.I

A.S. Mondal has lodged a written compliant in this case on the basis of which

Sainthia P.S Case No. 86 of 1996 dated 5.8.1996 was started. The written

complaint has been marked as Exhibit 1 and the formal FIR has been marked

ad Exhibit 1(b). The de-facto complainant S.I Ardhendu Sekhar Mondal, has

been examined as PW-2. He has deposed that on 5.8.1996 he was attached to

Ahamedpur outpost as S.I of police. After receiving a secret information that a

female person was carrying huge quantity of ganja in her possession, he

recorded GD Entry no. 130 dated 5.8.1996. The GD has been produced as

Exhibit 2. PW-2 further deposed that he informed about the secret information

to Mr. Samiran Rai, the Circle Inspector of Bolpur over telephone. PW-8 was

accompanied by the circle inspector from the police outpost to Choto line para

along with other police personnel. Their departure was recorded in GD No. 132

dated 5.8.1996 which has been marked as Exhibit 3. It appears from the

evidence of PW-2 that on reaching Choto line para at about 3:35 P.M. They

found the appellant with one suitcase in her possession and she entered the

house as Benarasi Das. On interrogation the appellant disclosed her name as

Nomita Valla. On being ordered by police personnel the appellant opened the

suitcase and it was found to contain 8 kgs. of ganja wrapped in green colour

polythene packet. PW-2 seized samples from the packets in presence of Sheikh

Sanaullah (PW4) and Sabdul Mia (PW 3) who were present as public witnesses.

The quantity of ganja was weighed, sealed and lebelled. A seizure list was

prepared by PW-2 in presence of the witnesses which has been marked as

Exhibit 4 and the signature of the appellant has been marked as Exhibit 4(a).

Accused Benarasi Das has also put his LTI on the seizure list. In course of trial

the suitcase was produced as MAT Exhibit I. The witness deposed that at the

time of search no female was present. In cross-examination PW-2 denied that

the accused persons have been falsely implicated in this case.

8. Sabdul Mia, the seizure witnesses has been examined as PW-3. The

witness was declared hostile and he deposed that he did not accompany

Daroga Babu to the place of occurrence and that he went to Ahamedpur

outpost on that date to settle a dispute and put a signature as per direction of

police. The witness denied that any seizure of suitcase containing ganja was

made in his presence.

9. PW-4, Sheikh Sanaulla, another seizure witness who also turned hostile

to prosecution, deposed that he did not accompany police on 5.8.1996. The

witness deposed that he put his signature on some blank paper and identified

his signature as Exhibit 4.

10. PW-5 S.I, Basudeb Kundu, deposed that on 5.8.1996 he accompanied

A.N Dutta and other police personal from Ahamedpur Fari to Choto line para

for conducting raid. He also deposed that one woman, Nomita Valla was

apprehended while she entered a house with a 'attache case' containing ganja.

The witness further deposed that materials were seized from the accused

persons. They were arrested and brought to the Fari where ganja was weighed

and sample was collected, sealed and lebelled. It is evident from his deposition

that the material was brought to the police outpost at first and thereafter

weighing was done. Therefore, the description of the contraband substance

made in the seizure list was done at the police station and not at the alleged

place of occurrence.

11. PW-6 constable Md. Asad Nabi deposed that on 5.8.1996 he

accompanied the Circle Inspector of police, officer-in-charge of Ahamedpur

police outpost and others to Choto line para at about 3:15 P.M and detained a

woman in front of the house of Banarasi Das and on opening of the Brief Case

in possession of the woman 8 kgs. of ganja was recovered which was wrapped

in green colour polythene packets and tied with thread. The witness further

deposed that ganja was weighed in presence of local public and was seized and

samples collected. According to him seizure was made outside the house of

Banarasi Das.

12. PW-7 Sailen Thakur, a police constable deposed that he was posted at

Ahamedpur police outpost on 5.8.1996 and on that date he accompanied the

officer-in-charge, Chotobabu and police other constables to Choto line para for

conducting the raid. They found one women with 'attachi case' in her hand

entered into the house of Benarasi Das at Railway quarters, Ahamedpur. Police

surrounded the house and entered the house the women Nomita Valla and

Benarasi Das were arrested and one suitcase was recovered. The witness

further deposed that 8kgs. of ganja was seized from the attache under a seizure

list. In cross examination the witness deposed that no local people were with

them at the time of seizure but some persons from the railway quarters were

present. Witness further stated that seal, lebel and papers were prepared at the

police outpost. It is clear that actual seize was made at the police outpost.

13. PW- 8 S.I Deb Narayan Dutta, the Investigating Officer has deposed that

he recorded the statement of the witnesses and after investigation submitted

charge sheet. It appears from the evidence on PW-8 that PW-4 Sanaullah

stated before him that while a female accused handed over a suitcase to

Benarasi Das they caught hold of them and on search 8 kgs. of ganja was

found in the same suitcase.

14. Learned Judge, Special Court under the NDPS Act on considering the

evidence on record was pleased to acquit accused Benarasi Das but found

Namita Valla guilty of offence under section 20 (b) of NDPS Act and convicted

her under section 235(2) of Cr. P.C.

15. It has been argued on behalf of the appellant that the mandatory

provisions relating to search and seizure under the NDPS Act has not been

complied rendering the prosecution case doubtful. Having considered the

materials on record it appears to me that the alleged occurrence took place

inside house of Benarasi Das and the alleged seizure was made from the

possession of the appellant in the railway quarters of Benarasi Das at Choto

line para, Ahamedpur.

16. Section 42(2) of the NDPS Act provides that where an officer takes down

any information in writing under sub section (1) or records grounds for his

belief under proviso thereto, he shall within seventy two (72) hours send a copy

thereof to his immediate superior. In the instant case PW-2 S.I A.S Mondal,

deposed that on receiving a secret information that huge quantity of ganja was

in the possession of a female accused, he recorded a G.D no.130 dated

05.08.1996. However, no such information was sent to the superior police

officer, that is by O.C of the Police Station to the Circle Inspector of Bolpur.

Therefore, it is clear that the mandatory provisions under section 42(2) have

not been complied in the instant case.

17. PW-2 and PW-7 deposed that the alleged seizure has been made from the

appellant/accused from the house of Benarasi Das which is a closed premises.

Under such circumstances Section 50(4) of NDPS Act should have been

complied. The mandatory provisions under section 50(4) of the Act lays down

that no female shall be searched by any one excepting a female. Non-

compliance of this provision is also fatal to prosecution.

18. Learned advocate for the respondent/state has argued that the search

and seizure was conducted in presence of a Gazetted Officer who is the Circle

Inspector of Bolpur. On close consideration of the evidence on record I find that

the Circle Inspector Bolpur has not been examined in this case and his

signature in the seizure list has not been proved. Section 50(2) of the NDPS Act

provides that where any officer duly authorized under Section 42 is about to

search any person under the provision of Sections 41, section 42 or section 43,

he shall, if such person so requires, take such person without unnecessary

delay to the nearest Gazetted Officer or any of the departments mentioned in

Section 42 or to the nearest Magistrate. In the instant case the evidence of the

prosecution witnesses who are all police personnel, reveal that no such clear

option was given to the appellant as to whether she wanted to be searched in

presence of a Gazetted Officer or a Magistrate. Thereby, the mandatory

provision has not been complied with.

19. I find that the safeguards which have been provided under NDPS Act

have not been followed by the Investigating Agency thereby rendering the

prosecution story doubtful.

20. Learned advocate for the appellant relying upon the decision in the case

of Beckodan Abdul Rahiman Vs. State of Kerela; (2002) 4 SCC 229 argued

that under Section 50 of the NDPS Act it is mandatory to give an option to the

accused to search him in presence of a gazetted officer or the Magistrate. If the

accused has not been apprised of his right nor any option offered to him for

search being conducted in presence of the Magistrate, then such violation

would entitle the accused to be acquitted. Reliance is also placed upon the case

of State of Punjab Vs. Baldev Singh; (1999) 6 SCC 172, where it was held, "it

is an obligation of the empowered officer and his duty before conducting the

search of the person of a suspect, on the basis of prior information, to inform

the suspect that he has the right to require his search being conducted in

presence of a Gazetted Officer or a Magistrate. The failure to so inform the

suspect of his right would render the search illegal because the suspect would

not be able to avail of the protection which is inbuilt in section 50. Similarly, if

the person concerned requires, on being so informed by the empowered officer

or otherwise, that his search be conducted in the presence of a Gazetted Officer

or a Magistrate, the empowered officer is obliged to do so and failure on his

part to do so would cause prejudice to the accused and also render the search

illegal and the conviction and sentenced of the accused based solely on

recovery made during that search bad."

21. Considering the facts and circumstances of the case and the materials on

record coupled with non-compliance of the mandatory provisions of NDPS Act

under Section 42(2) and Section 50(1) and 50(4), I find and hold that the

impugned judgment of conviction passed against the appellant suffers from

materials illegality. The alleged search and seizure of the contraband substance

from the accused person could only be relied on if the mandatory provisions of

the Act was followed in course of such procedure. In the present case no

independent witness has been cited. The alleged occurrence took place in

broad day light but there is dearth of independent evidence. Even the safe

guards provided under the Act at the time of making search and seizure have

not been taken care of by police personnel. PW-2 has deposed that the female

accused Namita Valla entered into the house of Benarasi Das where she was

interrogated and police made seizure of a suitcase from her possession. PW-2

prepared seizure list in this case. PW-5 S.I Basudev Kundu, deposed that

seizure was made inside the house and the contraband substance was

weighed, and the sample was collected and sealed and lebelled at the police

station. PW-6, Constable No.855, Md. Asad Nabi to the contrary deposed that

the lady accused was intercepted in front of the house of Benarasi Das and on

opening the attaché in her possession 8kg of ganja was recovered. Therefore,

the evidence of all three witnesses are contradictory to each other regarding

place, time and seizure.

22. From my above discussion I hold that the charge under section 20(b) of

NDPS Act could not be proved against the accused/appellant beyond

reasonable doubt. The conviction and sentence passed by learned Trial Judge

therefore cannot be sustained and the impugned judgment is set aside. The

appellant is acquitted from the charge and is discharged from her bail bond.

Appeal is accordingly allowed.

23. Let the LCR along with copy of the judgment be sent to Learned Judge,

Special Court under NDPS Act, Suri, Birbhum for information.

(Ananda Kumar Mukherjee, J.)