Vijoy Shaw @ Gora vs The State Of West Bengal
2023 Latest Caselaw 4315 Cal

           IN THE HIGH COURT AT CALCUTTA
                    Criminal Application
                       Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
                And
The Hon'ble Justice Md. Shabbar Rashidi
                    CRA (DB) 39 of 2022
                           With
                      CRAN 2 of 2022

                     Vijoy Shaw @ Gora

                            Versus

                The State of West Bengal


For the appellant    : Mr. Manjit Singh, Adv.
                     : Mr. Gaganjyot Singh, Adv.
                     : Mr. Biswajit Mal, Adv.
                     : Mr. Abhishek Bagal, Adv.
                     : Mr. Akbar Laskar, Adv.

For the State        : Mr. Partha Pratim Das Adv.
                     : Ms. Manasi Roy, Adv.

Heard on             : April 27, 2023

Judgement on         : July 19, 2023


                        1
 Md. Shabbar Rashidi, J.:

1.

The appeal is in assailment of the judgment of

conviction dated February 24, 2020 and order of

sentence dated February 27, 2020 passed by 12th

Additional Sessions Judge cum Special Court under

Narcotic Drugs and Psychotropic Substances Act in

connection with Sessions Trial No. 03 (08) of 2017 arising

out of Sessions Case No. 08 (05) of 2017.

2. By the impugned judgment, the appellant was

convicted for the offence punishable under Section 20 (b)

(ii) (c) of the Narcotic Drugs and Psychotropic Substances

Act. By the impugned order of sentence, the appellant

was sentenced to undergo 14 years of rigorous

imprisonment and to pay a fine of Rs. 150,000 and in

default to undergo further rigorous imprisonment for

another one year.

3. The fact that gives rise to the instant case in a

nutshell is that the de-facto complainant received a

source information on February 20, 2017 at about 14.00

hrs to the effect that one male peddler will supply/sell

charas in Watgunge police station area. The information

was reduced into writing and was forwarded to the

officer-in-charge, Narcotic Cell, D. D. Under due

permission from the Assistant Commissioner, Narcotic

Cell, D. D. a raiding team was formed and the raiding

party proceeded to the spot under Watgunge police

station area at about 15.00 hrs. for conducting raid along

with the source, testing kit, packing materials, seals et

cetra. They reached the spot i.e. D.H. Road in front of

R/S Enterprise at about 15.30 hrs being led by the

source. At about 16.00 hrs. the source pointed to a

young male person coming from D. H. Road from South

to North direction.

4. It is further case that the de-facto complainant

detained the said person at Diamond Harbor Road in

front of R.S. Enterprise, P.S. Watgunge, Kolkata 23 and

disclosed their identity. The de-facto complainant

requested from amongst the assembled crowd to be

witness to the search and seizure to which two persons

agreed. The detainee disclosed his name as the appellant.

5. The de-facto complainant informed the detainee of

his legal rights to be searched in presence of a Magistrate

or a Gazetted Officer, by serving written option to which

the detainee agreed to be searched on the spot in

presence of a Gazetted Officer and refused to go

anywhere else. The de-facto complainant searched for a

Gazetted Officer in the locality and having failed to find

one, he informed his superior. At about 17.30 hrs, PW2

came to the spot in his official vehicle and uniform who

was introduced to the detainee and the witnesses as a

Gazetted Officer. PW2 served the second option in writing

upon the detainee whereupon the detainee reiterated his

choice to be searched in presence of a Gazetted Officer on

the spot.

6. The detainee searched the person of the de-facto

complainant and other members of the raiding team but

nothing objectionable could be found. Thereafter, the de-

facto complainant conducted search on the person of the

detainee. A navy blue medium size bag was recovered

from his right hand. The said bag was found to contain

black polythene packet containing cannabis resin

commonly known as 'charas'. A cash of Rs. 30/- was also

found. The recovered contraband was tested with the

help of testing kit and has found to be positive for

'charas'. Accordingly, the narcotic contraband and the

cash was seized from the possession of the detainee

under a seizure list dated February 20, 2017. Two

samples of 50 grams each were collected from the mother

packet. The samples along with mother packet and the

polythene were packed, sealed and labeled and marked.

The Gazetted Officer, the detainee and the witnesses put

their respective signatures/left thumb impression on the

seizure list and the labels. Thereafter, the de-facto

complainant examined the witnesses and the Gazetted

Officer and recorded their statements under Section 161

of the Code of Criminal Procedure.

7. On completion of the proceedings, the de-facto

complainant lodged a written complaint with the Officer-

in-charge, Watgunge Police Station. He also handed over

the detainee and the seized articles, seizure list and

relevant documents to the Officer-in-charge, Watgunge

Police Station for preparation of inventory.

8. On the basis of such written complaint, Watgunge

Police Station Case No. 49 of 2017 dated February 20,

2017 under Section 20(b)(ii)(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 was started against

the appellant. The police took up investigation and on

completion of investigation submitted charge sheet

against the appellant. On the basis of materials in the

case diary, charge under Section 20(b)(ii)(c) of the

Narcotic Drugs and Psychotropic Substances Act, 1985,

was framed against the appellant on August 11, 2017.

The appellant pleaded not guilty to the charge and

claimed to be tried.

9. At the trial, in order to prove the charge,

prosecution examined 7 witnesses. In addition, the

prosecution also relied upon certain documentary and

material evidences.

10. At the time of argument, learned advocate for the

appellant submitted that there was a discrepancy in the

weight of the seized contraband seized by the seizing

officer and the chemical Examiner who examined the

contraband. It was contended that PW 1 has stated in his

deposition that at the time of search and seizure, he took

two samples weighing 50 grams each, out of the mother

packet whereas the chemical Examiner found the sample

packets to contain 66 grams of contraband in the sample

packets. It was contended that in terms of the ratio laid

down in (2005) 9 SCC 773 (Rajesh jagdamba Avasthi

V. State of Goa), it was held by the Hon'ble Supreme

Court that discrepancy in the weight of the charas as

allegedly seized and as received by the chemical expert

brings into question the chain of custody and is sufficient

to warrant an acquittal in the case under the NDPS Act.

11. Learned advocate for the appellant also submitted

that the case was investigated by PW3 initially and

thereafter the investigation was transferred to PW7. The

Malkhana register of the detective Department has not

been produced during the trial which raises a significant

doubt over the chain of custody of the samples examined

by the chemical expert. It was further contended that the

person who actually carried the sample packets to the

Central forensic science laboratory has not been

identified.

12. The learned advocate for the appellant also

submitted that the most natural witnesses that is to say

the shop owners of RS Enterprise or the nearby shops

and houses have not been arrayed as a witness in this

case. This raises all reasonable doubts regarding the

veracity of the search and seizure.

13. It was also contended on behalf of the appellant

that in spite of the appellant conducting search on the

person of the raiding party, no seizure list in this regard

was prepared and proved. Moreover, the specimen brass

seal was not handed over to an independent person.

14. Learned advocate for the appellant also contended

that the prosecution did not examine the other

independent witness to the seizure list and the members

of the raiding team. The learned advocate for the

appellant relied upon (2017) 15 SCC 684 (Naresh

Kumar@ Nitu V state of Himachal Pradesh) wherein it

was held that if the prosecution seeks to initially rely on

any independent witness, the same cannot be discarded

subsequently. It was also submitted that the signatures

of the members of the raiding team were not obtained on

the seizure list and other documents nor their details

were disclosed in the written complaint raising serious

ground on the veracity of the case.

15. Learned advocate for the appellant also contended

that the appellant was found in possession of contraband

which was slightly above the commercial quantity and

the appellant was convicted for the first time in

connection with this case. The learned trial court failed to

consider such mitigating circumstances and awarded a

punishment of 14 years with a fine of ₹ 1.5 lakhs,

instead, learned trial court ought to have awarded the

minimum punishment prescribed for the office which was

10 years. In this regard, the learned advocate for the

appellant relied upon (2013) 1 SCC 570 (Shahejadkhan

Mahebubkhan Pathan Vs. State of Gujrat), (2005) 4

SCC 146 (Balwinder Singh Vs Assistant

Commissioner, Customs and Central Excise) and

(2018)13 SCC 600 (Pradeep Bachhar Vs. State of

Chhattisgarh)

16. On the other hand, it was contended on behalf of

learned advocate for the State that PW 3 was not the

investigating officer of this case at any stage. In fact, PW3

was the recording officer and received the seized alamats.

The investigation of the case was handed over to PW 7

from the very beginning. It was also submitted that the

deposition of PW7 discloses that he received the seized

articles in packed and sealed condition from the

Malkhana of the police station under proper receipts

which was duly tendered in evidence and marked as

Exhibit 12 and 12/1. Such articles were kept in the

central Malkhana, Lalbazar and the requisition

submitted by PW7 for keeping the seized articles in the

Malkhana was also tendered in evidence and marked as

Exhibit 9 collectively. The seized articles were sent

through a challan containing seal impression of DC, DD

which was also tendered in evidence and marked as

Exhibit 21. It is submitted by learned advocate for the

State that the chain of custody seized articles were duly

proved at the trial and was beyond any doubt.

17. Learned advocate for the State further submitted

that there was no discrepancy in the weight of the seized

contraband in so far as sample packets were prepared by

the seizing officer at the spot marking the packets as S1

and S2. The seized contraband was sent for chemical

examination under proper challan and was received by

chemical Examiner with intact seal. It was stated that the

sample was received by chemical Examiner in good

condition with its packing and labels; minor difference in

weight of the samples does not create any dent in the

prosecution case.

18. Learned advocate for the State has submitted that

the prosecution has been able to bring home the charges

leveled against the appellant with the help of cogent and

convincing evidence and as such, the impugned

judgment of conviction and order of sentence does not

deserve any interference.

19. The de-facto complainant deposed as PW1. He has

stated that on February 20, 2017 at 14.00 hrs, he

received a source information that one drug seller was to

come to Watgunge P.S. area in the afternoon. PW1

reduced the information into writing and informed his

immediate superior, Inspector Biswajit Banik of Noarcotic

Cell D.D and under his direction, PW1 formed a raiding

team. He also obtained permission from the Assistant

Commissioner of Narcotic Cell.

20. The source information reduced into writing was

tendered in evidence and marked as Exhibit 1 and the

permission letter was marked as Exhibit 2. He further

stated that the raiding team left Lalbazar at 15.00 hrs in

a vehicle carrying the necessary testing kit, weighing

scale, package materials, brass seal and other necessary

accessories and reached the spot. The source led the

raiding team in front of R.S. Enterprise on the Diamond

Harbour Road at about 15.30 hrs and maintained a

watch. After sometimes, the source pointed out the

person coming from the north direction having a bag in

his right hand about 14.00 hours. PW 1 intercepted him

in front of R. S. Enterprise on the road at 70/6 Diamond

Harbour Road, Calcutta 23. PW 1 disclosed his identity

and explained the purpose of his detention. In the

meantime some people started gathering there. PW 1

informed the gathering that the detained persons was

carrying narcotic and was liable to be searched. He

requested the gathering to be a witness of search and

seizure under NDPS Act. Two persons volunteered to be

witnesses.

21. PW 1 further stated that he informed the detainee

with his legal rights that he might be searched in

presence of a Gazetted Officer or a Magistrate at the spot

or if he wished he could be taken to the office of a

gazetted officer or a Magistrate. He also sought the first

option upon the detainee and explained the meaning of a

gazetted officer and a Magistrate. The detainee opted to

be searched by a gazetted officer at this spot. The

detainee was not able to write down his reply to be first

option and as per the request of the detainee, the reply

was written by PW 1 in the language of the detainee and

he put his left thumb impression on the first option. The

first option was tendered in evidence and marked as

Exhibit 3.

22. PW 1 further stated that he searched for a gazetted

officer in the locality but failed to find one. Accordingly,

he informed his superior to send a gazetted officer at the

spot. At about 17.30 hours, one inspector came to the

spot in uniform being PW 2 at the spot to supervise the

search and seizure under NDPS Act as a gazetted officer.

He was introduced by PW 1 to the detainee and the

witnesses. PW 2 informed the detainee of his right to be

searched on the spot in presence of a gazetted officer. He

also served the second option upon the detainee

whereupon; the detainee opted to be searched at the spot

in his presence. The detainee also searched the person of

the police personnel in the raiding team including that of

PW 1 but nothing could be found except the personal

belongings. The detainee was not in a position to write

down his option on the second option to and on his

request his reply was written by PW 2 to which, the

detainee put his left thumb impression. The second

option form was also tendered in evidence and was

marked as Exhibit 4.

23. Thereafter, PW 1 proceeded to search the person of

the detainee on the spot in presence of the gazetted

officer and independent witnesses. The Navy blue bag

carried by the detainee was searched and found to

contain a black polythene packet which, in turn, was

found to contain rectangular -shaped slab with Brown

coloured adhesive tape. The slab were found to contain

black coloured substance which was tested with the

testing kit and was found to be positive for charas i.e.

cannabis resin. The seized contraband, was found on

weighing to be 1 kg and one hundred grams in weight.

PW 1 extracted sample packets of 50 grams each from

the mother packet and packed, sealed and labeled the

sample packets and marked the same as S1 and S2. The

mother packet along with the polythene packet as well as

the bag was also sealed and labeled with a marking. A

cash of ₹ 30/- was also recovered from the pocket of the

detainee which were also sealed and labeled. The

recovered articles including a brass seal were seized by

PW 1 under a seizure list prepared at the spot in

presence of the gazetted officer and the witnesses which

was tendered in evidence and marked as Exhibit 5. PW 1

also stated that the detainee failed to give any

satisfactory answer for the possession of narcotic

contraband, so he was arrested at about 20.00 hours. He

proved the memo of arrest and inspection memo

prepared in the pen and signature of PW 1 were also

marked as Exhibit 6 and Exhibit 6/1. At the trial, PW 1

also identified the sample packets of the contraband and

that of the cash money produced in the court which were

marked as Mat. Exhibit I and II and the signatures on

the labels were marked as Mat. Exhibit I/I and II/I

respectively. The mother slab of contraband and

signatures on its labels were also identified by PW1 as

Mat. Exhibit III series and IV series respectively.

24. PW1 handed over the seized articles, the seizure list

and the detainee to the officer-in-charge of Watgunge

Police Station which was entered in an inventory list.

PW1 also submitted a written complaint (Exhibit-7) with

the officer-in-charge of Watgunge Police Station.

Although, PW1 was extensively cross examined on behalf

of the appellant but nothing favorable could be extracted

so far as the search, recovery and seizure of narcotic

contraband from the possession of the appellant is

concerned.

25. The police officer who acted as a Gazetted Officer

was examined as PW2. He has stated that on February

20,2017 he was directed by the Deputy Commissioner,

Port Division to go to the spot situated in front of R.S.

Enterprise on Diamond Harbour Road to act as a

Gazetted Officer where a person was detained by the

officers of Narcotic Cell on the suspicion of possessing

contraband. Accordingly, he informed the Officer-in-

charge, made a note in the GDE (Exhibit 9) and

proceeded to the spot. He reached the spot at about

17.30 hrs. Reaching there he saw one person standing in

the middle of a crowd. PW1 came to him and disclosed

his identity and introduced PW2 with the suspect, the

members of the raiding team and the independent

witnesses. He identified the appellant in court. PW2 was

further informed by PW1 that he had served first option

upon the suspect who had opted to be searched on the

spot in presence of a Gazetted Officer. PW2 served second

option upon the suspect which was tendered in evidence

and signature of PW2 thereon was marked as Exhibits.

26. PW2 has fully corroborated the statement of PW1

with regard to the manner of search and seizure of

narcotic contraband and collection of samples et cetra

form the possession of the appellant. PW2 proved his

signatures on the seizure list and the labels attached to

the seized articles.

27. The recording officer deposed as PW3. He stated

that on February 20, 2017, he was called upon by the

Officer-in-charge of Watgunge Police Station and directed

him to collect the written complaint, seizure list, seized

articles and the accused. Accordingly, PW3 lodged a GDE

(Exhibit 10) and started a specific Case. He filled up the

formal First Information Report and received four packets

of seized articles as well as the arrested accused. PW3

proved the endorsement of the Officer-in-charge on the

written complaint (Exhibit 7/1) and the formal FIR

(Exhibit 11). He also identified the packets containing the

seized articles in court. PW3 deposited the seized article

with the PS Malkhana, the relevant entry of which was

marked as (Exhibit 13). On February 22, 2017 he handed

over the case to PW7 under order of Deputy

Commissioner, Detective Department by lodging a GDE

in this regard (Exhibit 14).

28. One of the independent witnesses was examined as

PW4. He stated that on February 20, 2017, he was going

to play through the Diamond Harbour Road. He saw a

gathering in front of R.S. Enterprise. Going there he

found a person standing with a navy blue color bag. One

officer i.e. PW1 came out and told that the man was

intercepted on the suspicion of possessing Narcotic

substance and requested him to be a witness. He and

one Sk. Tarik agreed to be such witness. He identified the

appellant in court.

29. PW4 also stated that the police officer asked the

appellant whether he wanted to be searched in presence

of a Magistrate or a Gazetted Officer. The suspect was not

able to read and write for which the answer on the option

form was written by PW1 as per the version of suspect.

PW4 also signed on such paper along with the Gazetted

Officer. The suspect also put his Left Thumb Impression

on it. He has also stated that on the request of PW1, PW2

came to the spot to act as a Gazetted Officer and served

the second option upon the suspect. PW4 also stated that

after observing all formalities, the bag of the suspect was

searched by PW1 and on such search the bag was found

to contain a polythene packet containing some square

shape material wrapped with adhesive tape. The said

article weighed 1 kilogram and 100 grams. A cash of

Rs.30/- was also recovered. The said articles were seized

under a seizure list. PW4 proved his signature on the

seizure list and option forms. Samples were also collected

in two packets marked S1 and S2 and he signed on the

labels attached to such packets (Mat. Ext. III/6, IV/5 and

IV/6) respectively.

30. The chemical Examiner was examined as PW 5. He

stated that on February 23, 2017, his laboratory received

one Brown paper packet marked S1 from Watgunge

police station in connection with case number 49 dated

February 22, 2017. Upon receipt the packet was marked

with laboratory number. At the time of receiving, the seal

on the packet was found to be intact and tallied with the

specimen seal forwarded with the memo. The said packet

was found to contain 66 grams of semi-solid lumps. The

articles were tested in the laboratory by the chemist

under the supervision of PW5. Upon such testing the

article was found to be charas. PW5 accordingly,

prepared a test report which was tendered in evidence

and was marked as Exhibit 15. He also identified the

packet containing the remnants of the contraband and

an envelope in which the samples were received by his

office. PW5 also identified the Mat. Exhibit I.

31. One of the members of the raiding team was

examined as PW 6. He stated that on February 20, 2017,

at about 3.00 p.m., he accompanied PW 1 to 70/6,

Diamond Harbour Road. After some time one person was

seen coming along Diamond Harbour Road. At the

indication of the source, the said person was

apprehended by the raiding team including PW6. PW 1

disclosed his identity before such person and informed

him that he was suspected of possessing narcotic

contraband. PW6 also stated that two independent

witnesses from amongst the gathered crowd came

forward to assist in the search. The suspect was informed

of his right if he wanted to be searched in presence of a

Magistrate or a Gazetted Officer. In this regard, PW6

signed on a document prepared by PW 1. He further

stated that at about 17.30 hours, the Gazetted Officer

came to the spot and served the option to the suspect

whether he wanted to be searched in presence of a

Magistrate or a Gazetted Officer. PW6 signed on search

option besides the witnesses and the detained person

(Exhibit 4/5).

32. PW6 further stated that the detained person

searched the police personnel but nothing objectionable

could be found. Thereafter, PW 1 conducted search on

the person of the detained person and on such search, a

cash of ₹ 30/- was recovered from his pocket. The bag

carried by the suspect was found to contain a polythene

packet containing charas which was wrapped with Brown

paper. The contraband was found to be 1 kg and 100

grams on weighing. PW 1 collected sample packets taking

50 grams each from the seized material. Thereafter, the

mother packet and the sample packets were packed,

sealed and labeled. PW 6 signed on the labels attached to

the mother packet as well as sample packets. The

packets were also signed by the independent witnesses

and the Gazetted Officer. The articles were seized under a

seizure list which was also signed by PW6 along with

others which he identified. PW6 also identified his

signature on the seizure list as well as on the labels

attached to the mother packet and the sample packets.

33. The investigating officer deposed as PW7. He stated

that on February 20, 2017, he took up investigation of

the case in terms of the order of Deputy Commissioner,

Detective Department. He tendered the order of the

Deputy Commissioner which was marked as Exhibit 16.

He further stated that, in course of investigation, he went

to Watgunge police station and took over the charge of

investigation. He took over the custody of the accused

and seized articles from the police station under a GDE

(Exhibit 17). He also received the seized articles under

sealed condition from the PS Malkhana by putting his

signature on the Malkhana register (Exhibit 12). He took

up the custody of the appellant from the lock-up. He also

proved the lock-up register (Exhibit 18). He identified the

appellant in court.

34. PW7 also stated that in course of investigation, he

kept the accused in the central lock-up and placed the

seized articles in central Malkhana, Lalbazar under a

requisition and receipt to put the alamats at the central

Malkhana (Exhibit 19 collectively). He also stated that in

course of investigation he visited the place of occurrence,

prepared sketch map (Exhibit 20). On February 23, 2017

he sent the seized articles for chemical examination

under a challan bearing the official seal and signature of

the Deputy Commissioner, Detective Department (Exhibit

21). On completion of investigation, under due

permission of his superior, PW7 submitted charge sheet

on May 27, 2017 against the appellant under section 20

(b) (ii) (c) of the Narcotic Drugs and Psychotropic

Substances Act.

35. On completion of the evidence on behalf of the

prosecution, the appellant was examined under Section

313 of the Code of Criminal Procedure. The

circumstances appearing against the appellant were

placed before him in such examination, whereupon the

appellant pleaded his innocence having no knowledge

about the incident. He further stated in his examination

under Section 313 of the Code of Criminal Procedure that

he was picked up for motor theft. Thereafter he was

handed over to Narcotic Cell and was brought to

Watgunge police station. His family had filed complaint

against the officers in the case for falsely implicating him.

He although intended to adduce defense witness but no

defense witness appears to have been examined on behalf

of the appellant at the trial.

36. The prosecution case charges the appellant with the

possession of commercial quantity of 'Charas'. He was

apprehended with one kilogram and one hundred grams

of charas in contravention of the provisions of the

Nasrcotic Drugs and Psychotropic Substances Act, 1985.

37. According to the prosecution case PW1 received a

source information that a person was going to deal in

charas in Watgunge police station are on February 20,

2017. PW1 reduced the information into writing (Exhibit

1) and under due permission from his superior (Exhibit

2) formed a raiding team to work out the information. He

moved to the reported spot at Diamond Harbour Road in

front of R. S. Enterprise, with all the necessary kit and

other accessories accompanied by the raiding team and

the source. Reaching there, PW1 intercepted the

appellant as per identification of the source.

38. After observing all legal formalities, the appellant

was searched and narcotic contraband weighing one

kilogram and one hundred gram in the form of charas

was recovered from the possession of the appellant. The

appellant failed to produce any valid document for the

possession of contraband for which he was arrested in

accordance with law. Samples were collected from the

seized contraband in accordance with the established

rules for the purpose of chemical examination.

39. So far as recovery of the contraband from the

possession of the appellant is concerned, it is the case of

prosecution that the appellant was intercepted on the

Diamond Harbour Road in front of R. S. Enterprise being

identified by the source. He was informed that he was

being intercepted on suspicion of carrying narcotic

contraband. A search of the person and property of the

appellant was proposed to be searched. The seizing

officer informed him of his legal rights to be searched in

presence of a Magistrate or a Gazetted Officer by serving

the first Option form in writing (Exhibit 3). In the

meantime, some persons assemble at the spot and two of

the crowd volunteered to be independent witnesses to

search and seizure. The witnesses signed on Exhibit 3

whereas, the appellant put his left thumb impression.

40. The appellant opted to be searched on the spot in

presence of a Gazetted Officer whereupon, at the request

of PW1, one Gazetted Officer, PW2 arrived at the spot. He

served the second option upon the appellant (Exhibit4)

which was also signed by the witnesses. The appellant

put his left thumb impression on such writing. The

appellant also conducted search on the person of the

members of the raiding team but nothing objectionable

could be found.

41. Thereafter, a search was conducted by PW1 and

during such search one kilogram and one hundred grams

of 'Charas' besides the personal belongings was recovered

from the possession of the appellant. The appellant failed

to produce any valid document for the possession of

narcotic contraband. The aforesaid contraband along

with some cash money recovered so, from the possession

of the appellant, were seized by PW1 under a seizure list

(Exhibit 5). The seizure list contained the signature of the

independent witnesses and left thumb impression of the

appellant. The appellant was then arrested at the spot by

duly filled memo of arrest and inspection memo. The

recovery of contraband from the possession was and the

manner of such recovery was fully corroborated by the

prosecution witnesses including the independent

witness. The seized articles along with the sample

packets were produced in court and identified by the

witnesses.

42. The evidence on record goes to establish without

any iota of doubt that the appellant was found carrying

narcotic contraband at the relevant date and time and

was arrested from the spot situated on the Diamond

Harbor Road in front of the shop of R. S. Enterprise.

Although, the appellant, at the time of his examination

under Section 313 of the Code of Criminal Procedure

made out a case that he was picked up by the police in

connection with a case of motor theft and was brought

first to Lalbazar and then to the spot from where recovery

has been shown. Ultimately, he was implicated in this

case. He also stated that he had filed a complaint against

the police for false implication.

43. In answer to a question in such examination, the

appellant gave out to adduce defense witness. However,

neither any defense witness was adduced on behalf of the

appellant nor the appellant produced the complaint

lodged by him for the false implication in this case. The

details of the case regarding motor vehicle theft, in

connection of which, the appellant was first arrested, has

also not been brought on record. For such reasons, we

are of the opinion that the appellant failed to justify his

presence at the spot at the relevant date and time. He

also appears to have failed to establish that he was

falsely implicated in this case.

44. The evidence on record also shows that the seized

contraband was duly packed, sealed and labeled and was

brought to Watgunge police station where it was handed

over to PW3 who, in turn, deposited the same with the PS

Malkhana on February 20, 2007. Such deposit has been

duly proved by production of Malkhana Register (Exhibit

12). Later on, the said articles were handed over to the

investigating officer PW7 who received the same upon

due receipt endorsed on the Malkhana Register itself. He

kept the seized articles in the Central Malkhana, Lal

Bazar under proper entry in the Malkhana Register

(Exhibit 19) on February 22, 2007.

45. The seized articles were sent by PW7 for chemical

examination on February 23, 2007. The chemical

examiner, PW5, has stated that his office received the

seized article marked with S1 on February 23, 2007 in

connection with Watgunge PS Case No.49 dated February

22, 2007. He categorically stated in his deposition that

the seized articles were sent under a memo and the

condition of the seal on the packet at the time of

receiving was found to be intact and tallied with the

specimen seal forwarded with the memo. Therefore, it

transpires from the evidence on record that the

prosecution has convincingly proved the chain of custody

of the seized articles from the time it was seized till it was

received by the chemical examiner without any

reasonable fissure therein.

46. Learned advocate for the appellant has doubted the

report of the chemical examiner vis-à-vis alleged seizure

of contraband from his possession, on the ground that

there was notable difference in the weight of the sample

sent to it. According to the case of the prosecution, a

sample of 50 grams was collected at the time of seizure of

the contraband which was sent for chemical

examination. However, the gross weight and remnant

weight of the packet containing the contraband marked

with S1 was found to 66 grams and 59 grams

respectively.

47. It is trite law that what has to be ensured is that

what has been recovered is what has to be sent for

chemical analysis. In case there is any doubt that what

was received by the Chemical Analyser is not the same,

then the benefit of that doubt could be given to the

accused. But in cases where it is proved that what was

sent to the Chemical Analyser is the same as what were

recovered, minor differences in weight would not vitiate

the trial.

48. In the instant case, as noted above, a search and

seizure was made on February 20, 2017. PW1 has

testified that the seized articles were packed, sealed and

labeled at the spot itself with collection of samples.

Exhibit 5 series is the document which establishes the

seizure of not only the mother packet and other items but

the sample packets as well. On the same day a complaint

was lodged and the seized articles were deposited with

the Malkhana of Watgunge police station by Exhibit 12

coupled with Exhibit 10. Later on, the investigation of the

case was handed over to PW7, an officer from Narcotic

Cell, Detective Department, Lal Bazar. Accordingly, PW7

received the seized articles from Watgunge PS on

February 22, 2017 vide Exhibit 14 and Exhibit 17. He

deposited the same with Central Malkhana, Lal Bazar

which is duly proved with the help of Exhibit 19. PW7

has stated that he sent the sample contraband for

chemical examination on February 23, 2017. Exhibit

15/2 goes to show that the seized alamat marked S1 was

received by the chemical examination laboratory on

February 23, 2017 and that the seal was found intact

which tallied with the specimen seal sent with the memo.

Therefore, the aforementioned evidence without any bit of

doubt establishes that the articles sent for chemical

examination, was the same what were recovered from the

appellant on February 20, 2017.

49. In the case of Rajesh jagdamba Avasthi (Supra)

the Hon;ble Supreme Court was pleased to set aside the

conviction on the ground that the difference in weight of

the contraband in one of the packets was found to be

significant while in one of the packets it was minimal. It

was also noted in the said case that

"15. This is not all. We find from the

evidence of PW 4 that he had taken the

seal from PSI Thorat and after preparing

the seizure report, panchnama, etc. he

carried both the packets to the police

station and handed over the packets as

well as the seal to Inspector Yadav.

According to him on the next day, he took

back the packets from the police station

and sent them to PW 3 Manohar Joshi,

Scientific Assistant in the Crime Branch,

who forwarded the same to PW 1 for

chemical analysis. In these circumstances,

there is justification for the argument that

since the seal as well as the packets were

in the custody of the same person, there

was every possibility of the seized

substance being tampered with, and that is

the only hypothesis on which the

discrepancy in weight can be explained.

The least that can be said in the facts of

the case is that there is serious doubt

about the truthfulness of the prosecution

case."

50. However, in the case at hand, the seizure was made

by PW1. The seized articles were handled by PW1, PW3,

PW7 and the officers of two Malkhanas at different times.

There is no case that the same person was in possession

of the samples and the seal leaving any opportunity of

meddling with the seized articles. Moreover, the difference

in weight of the contraband received by the chemical

analyzer seems to be too minimal to be 59 grams instead

of 50 grams. Such minimal difference in weight coupled

with the manner of handling the alamats leaves no space

for an inference with regard to tampering with it. The

prosecution appears to have proved the chain of custody

of the seized articles beyond any dent and it can be safely

held that the articles sent for chemical examination was

the same which was recovered from the possession of the

appellant.

51. It is further contention of the appellant that the

members of the raiding team were not examined at the

trial. One of the independent witnesses who figured in the

seizure list has also not been examined by the

prosecution. Such conduct on the part of the prosecution

amounts to withholding of vital witnesses which tells

upon the veracity of the prosecution case. In the case of

Naresh Kumar@ Nitu (Supra) it was held by the Hon'ble

Apex court that,

"In a case of sudden recovery, independent

witness may not be available. But if an

independent witness is available, and the

prosecution initially seeks to rely upon

him, it cannot suddenly discard the

witness because it finds him inconvenient,

and place reliance upon police witnesses

only...........".

52. In the instant case, however, the recovery cannot be

termed as sudden recovery. The searching party moved

on a source input received before hand. Moreover,

besides PW1, another member of the raiding team, PW6

has been examined on behalf of the prosecution, who has

fully supported the case of the prosecution. To our

opinion, it is not at all necessary that each and every

member of the raiding team must be examined and non-

examination of any of such member is fatal to the case. It

is the prerogative of the prosecution to take a call as to

what and how much of evidence it requires adducing for

proof of its case. Thereafter, it is the court to consider

whether the case is proved enough to justify a conviction

or otherwise.

53. It is the case of the prosecution that two

independent persons agreed to be witnesses to search

and seizure. The search and seizure was made in their

presence and both of them put their signatures on the

seizure list, besides others. One of such independent

person has deposed in favour of the prosecution as PW4

and supported the case of the prosecution, as made out

in the First Information Report. He has sufficiently

testified the search and seizure of narcotic contraband

from the possession of the appellant. Non-examination of

the other independent witness does, in no way, gives rise

to an implication that the other independent witness was

discarded for being hostile to the case of the prosecution.

He was simply not examined for any reason whatsoever.

The case also does not fall in the category where it can be

said that the prosecution discarded the independent

witnesses and relied solely, upon police witnesses.

Therefore, we are of the opinion that in the given facts,

ratio laid down in the case of Naresh Kumar@ Nitu

(Supra) is hardly applicable in the present case.

54. Exhibit 15 series establishes that the articles

recovered and seized from the possession of the

appellant, on chemical examination, was found to be

'Charas' with the purview of Narcotic Drugs and

Psychotropic Substances Act, 2012. The appellant having

failed to show any valid document for the possession of

narcotic contraband, was surely liable for the violation of

the provisions of the said Act of 2012. Therefore, we find

no illegality or infirmity in the findings arrived at by the

learned trial court in holding the appellant guilty of the

contravention of the provisions of the NDPS Act and

ultimately convicting the appellant for the offence

punishable under Section 20 (b) (ii) (c) of the Narcotic

Drugs and Psychotropic Substances Act, 2012.

55. It was also contended by Learned advocate for the

appellant that the appellant was found in possession of

narcotic contraband which was slightly above the

commercial quantity and he was never convicted for a

similar offence earlier. The learned trial court failed to

appreciate such mitigating circumstances and awarded a

punishment of 14 years with a fine of ₹ 1.5 lakhs,

instead, learned trial court ought to have awarded the

minimum punishment prescribed for the office which was

10 years.

56. Shahejadkhan Mahebubkhan Pathan (Supra), the

Hon'ble Supreme Court laid down that,

"9. It is projected before us that both the

appellants are first-time offenders and

there is no past antecedent about their

involvement in offence of like nature on

earlier occasions. It is further brought to

our notice, which is also not disputed by

the learned counsel for the State that as

on date, the appellants had served nearly

12 years in jail. In view of the same and in

the light of the decision of this Court, in

Balwinder Singh [(2005) 4 SCC 146 : 2005

SCC (Cri) 1092] , while confirming the

conviction, we reduce the sentence to 10

years which is the minimum prescribed

sentence under the relevant provisions of

the NDPS Act."

57. Similarly in the case of Balwinder Singh (Supra)

the conviction of the appellant therein was reduced from

14 years to 10 years by the Hon'ble Supreme Court,

considering the fact that the convict was convicted for the

first time in a case under NDPS Act.

58. In Pradeep Bachhar (Supra), the Hon'ble Supreme

Court, noting the ratio laid down in the case of

Shahejadkhan Mahebubkhan Pathan Vs. State of

Gujrat, reduced the sentence of 12 years to 10 years, in

consideration of certain mitigating circumstances lying in

favor of the appellant, including first offence under NDPS

Act by the convict.

59. In the instant case, the appellant was found in

possession of one Kilogram and one hundred grams of

charas which is slightly above the commercial quantity of

one Kilogram. No material has been brought on record to

prove that the appellant was previously involved or ever

convicted for an offence for violation of the provisions of

NDPS Act. There are no materials on record to consider

the other mitigating circumstances like economic

condition or the family composition of the convict who

would suffer for the appellant remaining in custody.

Nevertheless, one consideration, in terms of the ratio laid

down in the abovementioned case i.e. criminal

antecedent in connection with similar offence, surely lies

in favor of the appellant.

60. Therefore, in view of the ratio laid down by the

Hon;ble Supreme Court in the cases of Shahejadkhan

Mahebubkhan Pathan (Supra), Balwinder Singh

(Supra) and Pradeep Bachhar (Supra) we are of the

opinion that the sentence passed by learned trial court

be reduced to the minimum punishment prescribed for

the offence which is 10 years, instead of 14 years as

awarded by learned trial court.

61. In the light of the discussions made hereinbefore,

the impugned order of conviction dated February 24,

2020 of the appellant is hereby affirmed. The impugned

order of sentence dated February 27, 2020 is however,

modified as indicated above.

62. The instant appeal being CRA 39 (DB) of 2022 is

accordingly disposed of.

63. In view of the disposal of the appeal, no

interlocutory application survives. Consequently,

connected applications, if any, shall stand dismissed.

64. Trial Court records along with a copy of this

judgment and order be sent/transmitted, at once, to the

learned Trial Court for necessary action.

65. Period of detention already undergone by the

appellants shall be set of against the substantive

punishment in terms of the provisions contained in

Section 428 of the Code of Criminal Procedure.

66. Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties on priority basis

upon compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]

67. I agree.

[DEBANGSU BASAK, J.]