Calcutta High Court (Appellete Side)
Pamela Goswami vs The State Of West Bengal on 16 March, 2023
Form J(1) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 3959 of 2022
Pamela Goswami
Vs.
The State of West Bengal
Mr. Milon Mukherjee
Mr. Avik Ghatak
Ms. Afreen Begum
...for the petitioner
Mr. Rudradipta Nandy, ld. APP
Mr. Ranadeb Sengupta
..for the State
Item No. 63
Heard & Judgment on: 16.03.2023
Bibek Chaudhuri, J.
An order dated 3rd June, 2021 passed by the learned 4th
Additional Sessions Judge-cum- Judge Special Court under NDPS Act,
Alipore, South 24 Parganas in NDPS Case No. 17 of 2021 is under
challenge in the instant revision.
The petitioner was travelling in a Honda BR-V car on 19 th
February, 2021 along with two other persons. The said car was
intercepted by police attached to Alipore Police Station and narcotic
substances, viz., cocaine weighing about 76 Gms was recovered from
the rear zip cover of the front seat and under driver's seat of the said
vehicle. With the recovery and seizure of narcotic substance police
registered a case under Section 21(b)/29 of the NDPS Act, 1985
against the present petitioner and two other persons. Subsequently,
investigation of the case was taken over by the detective department
constituting a Special Investigating Team (SIT). After investigation it
was found that one Rakesh Kumar Singh along with others out of
animosity against the present petitioner and other two travellers of
the said car planted narcotic substances in the said car. The
petitioner had no knowledge about such plantation of narcotic
substances and she was neither in physical or constructive possession
of the said contraband articles. On such finding the Investigating
Officer prayed for discharging the present petitioner on the ground
that no evidence could be collected against her and two others.
The final report was produced before the learned Special Judge
for acceptance. Vide order dated 3 rd June, 2021 the learned Sessions
Judge rejected the prayer of the de facto complainant mainly on the
ground that "Sections 35 and 54 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 raise presumption with regard to
culpable mental state on the part of the accused as also place burden
of proof in his behalf on the accused, but a bare perusal of the said
provision would clearly show that the presumption would operate in
the trial of the accused only in the event of circumstances contained
therein are fully satisfied. An initial burden exists upon the
prosecution and only when it stands satisfied, the legal burden would
shift..."
I have heard Mr. Mukherjee, learned senior counsel on behalf of
the petitioner as well as Mr. Nandy, learned advocate for the State.
On careful perusal of the impugned order dated 3 rd June, 2021 it
appears to this Court that the learned trial Judge formed his opinion
after going through the first two lines of paragraph 58 of Noor Aga's
case reported in (2008) 16 SCC 417. In brief Noor Aga establishes
a ratio that even if in certain special statutes the principle of reverse
burden as regards presumption of culpable mental state are codified
against the general jurisprudence of criminal administration of justice.
It is the primary duty of the prosecution to prove the foundational fact
of the prosecution case. Therefore, Section 35 starts with the words
"in any prosecution for an offence under this Act...." Similarly,
presumption under Section 54 of the NDPS Act is available only in
course of trial on the question of possession of illicit articles.
It is needless to say that prosecution starts on a police report
on submission of charge sheet. In the instant case no charge sheet
has been filed by the Investigating Officer against the present
petitioner on the ground that no evidence could be collected against
her.
I am not unmindful to note that even if a final report is filed
against the accused before accepting such final report it is necessary
for the trial Court to consider the case diary and to come to a finding
as to whether the materials contained in the case diary constitutes
offence against the accused.
I have carefully gone through the impugned order. The learned
Special Judge did not refer to any specific materials from the case
diary, which might implicate the accused. He took cognizance against
the petitioner on the basis of presumption of law under Sections 35
and 54 of the NDPS Act. Such presumption is not available at the
initial stage of taking cognizance of investigation.
In view of such circumstances, this Court is not in a position to
agree with the finding made by the learned Special Judge in the order
impugned.
Accordingly, the order dated 3rd June, 2021 is set aside.
The instant revision is, thus, allowed on contest.
(Bibek Chaudhuri, J.)
