Calcutta High Court (Appellete Side)
Hazarat Ali Molla @ Hazrat Ali ... vs The State Of West Bengal on 8 May, 2023
In The hIgh CourT AT CAlCuTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA (DB) 15 Of 2022
IA NO: C.R.A.N.1 of 2022
Hazarat Ali Molla @ Hazrat Ali Molla & Ors. .Appellant (In Jail)
Versus
The State Of West Bengal Respondent/Opposite Party
For The Appellants : Mr. Manjit Singh, Adv.
: Mr. Gaganjyot Singh, Adv.
: Mr. Biswajit Mal, Adv.
: Mr. Abhishek Bagal, Adv.
: Mr. Akbar Laskar, Adv.
For The State : Mr. Sanjoy Bardhan, Adv.
: Mr. Ranadeb Sengupta, Adv.
: Ms. Debjani Dasgupta, Adv.
Hearing Concluded On : April 04, 2023
Judgment On : May 08, 2023
1
Md. Shabbar Rashidi, J.
1. The appeal is directed against the judgment of
conviction dated December 08, 2021 and order of
sentence dated December 10, 2021, passed by learned
4th Additional Sessions Judge, Alipore, South 24
Parganas in connection with Sessions Trail No. 3(1) of
2018 arising out of Sessions Case No. 1 (9) Of 2017.
2. By the Impugned Judgement of Conviction, the
appellants were convicted for the offence punishable
under Section 20 (b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. By the impugned
order of sentence, all the three appellants were sentenced
to undergo rigorous imprisonment for 12 years and to
pay a fine of Rupees one lakh and in default of payment
of fine to undergo imprisonment for a further period of
six months.
3. On May 31, 2017, one Dababrata Sikder, sub-
inspector, ADRS, DD, lodged a written complaint with the
officer-in-charge of Taratala PS to the effect that on May
31, 2017 at about 14.30 hours, he received a credible
source information that male persons would be coming to
sell/supply charas in Taratala PS area in the afternoon.
The information was reduced into writing and forwarded
to the officer in charge ADRS, DD. Upon due permission,
a raiding team was formed at about 15. 00 hours. The de
facto complainant along with the raiding team left the
office at Lalbazar for the spot along with the raiding
team, source, weighing scale, narcotic drug testing kits,
packing materials and other accessories.
4. The raiding team reached near Hi-Tech centre, Hi-
Tech Logistics Ltd. on 1/1 Taratala Road at about 16. 30
hours. The source led the raiding team to the spot where
they started maintaining watch. At about 17. 00 hours,
the source pointed out towards male persons who were
coming along Taratala Road. The de facto complainant
detained the aforesaid three persons with the help of the
raiding team on the road in front of Hi-Tech Centre and
disclosed his identity and the purpose of their detention.
Meanwhile, a small crowd gathered. The de facto
complainant requested them to be a witness to the
search and seizure. Two persons from the crowd
volunteered to stand witness.
5. Upon interrogation, the three detained persons
disclosed their identity as the appellants. Thereafter, the
de facto complainant served written option to the
detained persons informing their legal right to be
searched in presence of a Magistrate or a Gazetted
Officer. The detained persons were also explained the
implication of the words Magistrate and Gazetted Officer.
The detained persons agreed to be searched on the spot
in presence of a Gazetted Officer and refused to go
anywhere else. A search for Gazetted Officer was made in
the locality but could not be found. The de facto
complainant informed his superior officer whereupon, at
about 19.00 hours, Inspector Tapan Kumar Mandal,
additional officer-in-charge, Taratala PS came to the spot
in uniform. He was introduced as a Gazetted Officer to
the detained persons and the witnesses.
6. The said Gazetted Officer served the second
option in writing upon the detained persons whereupon
they reiterated to be searched at the spot in presence of a
Gazetted Officer. The detained persons agreed to search
the person of the searching officer and the raiding team
and upon such search, nothing objectionable could be
found.
7. Thereafter, the de facto complainant proceeded to
search the detainees. One black coloured bulletin packet
from the right hand of the appellant Hazrat Ali Molla,
which was found to contain five pieces of solid materials
of cannabis resin commonly called charas having the
characteristic smell of charas weighing about 356 grams
and cash of Rs. 110/- from his chest pocket was
recovered. On search of the appellant, Susanta Sarkar, a
black coloured polythene packet was found in his right
hand containing nine pieces of solid materials of
cannabis resin commonly known as charas having the
characteristic smell of charas weighing about 565 gm
and cash of Rs. 120/- from his chest pocket was
recovered. Similarly, upon search of the appellant Fajar
Ali Darji, one black coloured polythene packet was found
in his right hand containing 11 pieces of solid materials
of cannabis resin commonly known as charas having
characteristic smell weighing about 351 gm and cash of
Rs. 150/- from his chest pocket was recovered.
8. The recovered articles were tested by the de facto
complainant with the help of testing kit and were found
positive for the presence of charas. The recovered articles
were then weighed with the help of weighing machine
which showed a total of 1 kg and 272 grams. The
aforesaid contraband articles along with the cash
recovered from the possession of the appellants were
seized under a seizure list prepared by the de facto
complainant on May 31 2017. The seized articles and
cash were sealed and labelled separately with distinct
markings on the spot in presence of a Gazetted Officer
and the accused persons and all of them put their
signatures/left thumb impressions on the seizure list.
9. The written complaint also disclosed that the
detained persons failed to produce any satisfactory
explanation for the possession of charas. As such, they
were arrested at the place of detention at about 22.00
hours upon due service of the memo of arrest. The de
facto complainant also examined the witnesses and the
Gazetted Officer at this spot and recorded their
statements in the streetlight. Thereafter, the detained
persons along with the seized articles were brought to
Taratala Police Station together with the other relevant
documents concerning the case and the same were
handed over to the officer in charge with a request to
prepare an inventory list under the NDPS Act.
10. On the basis of such written complaint, Taratala
PS Case No. 100/2017 dated May 31, 2017 under
Section 20(b) (ii) (c)/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 was started against
the appellants. The police took up an investigation and
on completion of the investigation submitted charge
sheet. Accordingly, charges under Section 20(b)(ii)(c)/29
of the Narcotic Drugs and Psychotropic Substances Act,
1985 were framed against the appellants on January 31,
2018, to which they pleaded not guilty and claimed to be
tried.
11. In order to bring home the charges, the
prosecution examined as many as 5 witnesses. In
addition, the prosecution also relied upon certain
documentary as well as material evidences.
12. Upon conclusion of the prosecution evidence, the
appellants were examined under Section 313 of the Code
of Criminal Procedure where the appellants claimed
innocence having been falsely implicated in the case. The
appellants adduced six defense witnesses in all. They
also relied upon certain documentary evidence which
were marked as Exhibit A and Exhibit B.
13. The sub- inspector of police who conducted the
raid was examined as PW 1. He stated that on May 31,
2017, he received a source information regarding a
transaction of narcotic drugs. He informed the matter to
the officer in charge of his department in writing (Exhibit
1). After obtaining due permission from the Assistant
Commissioner, A. R. S., DD (Exhibit 2), he proceeded for
conducting raid along with a raiding team at about 15.
30 hours along with the source and being equipped with
testing kit, weighing scale, brass seal and other
necessary articles. They reached near Hi-Tech Logistic
under PS Taratala at about 16.30 hours.
14. It was further stated by PW 1 that the three
detainees agreed to be searched in presence of a Gazetted
Officer. Since PW 1 did not get a Gazetted Officer in the
locality, he informed his superior officer, the officer in
charge of ADSR, DD for arranging a Gazetted Officer.
Thereafter, the additional officer in charge came to the
place of occurrence in official robe. The entire matter was
reported to his notice and, thereafter, he sought the
second option in writing upon the appellants (Exhibit 3).
15. After observing all legal formalities, PW 1
proceeded to search the appellants and on such search,
one (from each) black coloured polythene carry bag was
recovered from the possession of the three detained
persons containing 356 grams, 565 grams and 351
grams of charas from the respective possession of the
detained persons i.e. the appellants namely Hazrat Ali
Molla, Dinesh Sarkar and Fazar Ali Dorzi. Besides, a sum
of Rs. 110, Rs. 120 and Rs. 150 respectively, were also
recovered from the possession of the appellants. PW 1
also stated that after such search, the recovered articles
were seized under a seizure list prepared on the spot in
presence of the Gazetted Officer, the witnesses and the
detained persons who signed on the seizure list. Accused
Fazar Ali Dorzy put his Left Thumb Impression on the
seizure list. PW 1 tendered the seizure list which was
marked as Exhibit 4. He has also stated that he gave the
first option to the appellants in writing and the
appellants put their signature/Left Thumb Impression on
such option which were tendered in evidence and Marked
as Exhibit 5 collectively. PW 1 also stated that he
weighed the seized contraband and tested the same with
the help of testing kits. He also packed, labelled and
sealed the recovered articles.
16. PW 1 proved his signature on the label attached
to the sealed packet of the contraband opened in court
(Mat Exhibit I, II and III respectively). He also tendered
the packets containing the seized cash (Mat Exhibit IV, V
and VI respectively). He also proved his signature on the
labels attached to such packets.
17. PW 1 also stated that upon interrogation, the
appellants failed to produce any valid document or
satisfactory answer for the possession of contraband for
which the appellants were arrested under proper arrest
memo prepared at the place of occurrence. The
appellants signed/put their Left Thumb Impression on
such memo of arrest. Upon completion of the search and
seizure, PW 1 also examined the Gazetted Officer and the
witnesses under Section 161 of the Code of Criminal
Procedure.
18. Thereafter, PW 1 came back to Taratala PS with
the appellants and the seized articles. He prepared a
written complaint by typing the same in the computer of
the PS and handed over the same to the officer in charge
of Taratala PS together with the arrested accused persons
and the seized contraband. He tendered the written
complaint which was marked as Exhibit 12. PW 1 also
stated that after submitting such written complaint, he
returned to his office at Lalbazar and prepared a report
which he submitted to his superior. Such report was
marked as Exhibit 13.
19. The officer who acted as a Gazetted Officer
deposed as PW 2. He has stated that on May 31, 2017, a
search and seizure was conducted at 1/1, Taratala Road.
Being instructed by his superior, he went to the place of
occurrence by lodging a GDE to act as a Gazetted Officer
at 19.00 hours. Going there, he was introduced by PW 12
with that three detained persons. He served the second
option upon the said persons. He also informed the
aforesaid persons if they were agreeable to be searched in
presence of a Gazetted Officer whereupon the appellants
agreed to be searched in his presence.
20. PW 2 also stated that after observing the
formalities, the detained persons were searched one by
one in his presence. Upon such search, contraband
charas and some cash money was recovered from the
respective possession of the three detained persons. The
contraband was tested with the help of testing kits which
tested positive for charas. He further stated that 356
grams of charas was recovered from Hazrat Ali Molla
whereas 565 grams of charas from Dinesh Sarkar and
351 grams of charas was recovered from the possession
of Fazar Ali Dorzi. The aforesaid articles were seized by
PW1 under a seizure list which was signed by PW2,
besides the 2 independent witnesses and the accused
persons. He also stated that accused Fazar Ali Dorzi put
his Left Thumb Impression upon the seizure list. The
seized articles were packed, sealed and labeled by PW1
with distinct markings 'A' to 'F'. The witness identified
the sealed packets and his signatures on its labels in
court. He has also stated that the appellants failed to give
any satisfactory answer for the possession of contraband
for which they were arrested. PW 2 also stated that he
was interrogated and his statement was recorded by PW
1 under Section 161 of the Code of Criminal Procedure.
PW 2 also lodged GDE after returning to Taratala PS at
about 23.10 hours. He has proved the GDEs lodged by
him which were marked Exhibit 14 & 15.
21. A police officer from Taratala PS deposed as PW
3. He stated that on May 31, 2017, he was directed by
the officer in charge to receive her written complaint
seized Alamats and the arrested accused persons. PW 3
received the aforesaid articles along with the arrested
persons and lodged a GDE in this regard which he
tendered at the trial (Exhibit 16). PW 3 also filled up the
formal First Information Report (Exhibit 17) and started
case. He deposited the seized Alamats in the PS
Malkhana. PW3 proved the relevant entries in the
Malkhana Register which was marked Exhibit 18. He
also identified the appellants in court as the persons who
were handed over to him. He has also stated that he
received a total of six packets. He proved his signatures
on such packets in court.
22. He also produced the seized Alamats appellants
in court with a prayer for police custody which was
allowed. Later on he handed over the case diary, the
accused persons on police custody to SI Kalyan Biswas of
Narcotic Cell DD Lalbazar, in terms of a direction from
DCDD, Special and lodged a GDE in this regard which he
proved at the trial (Exhibit 19).
23. One of the independent witnesses was examined
as PW 4. He has stated that on May 31, 2017 at about
5.00/5.30 p.m. he was returning from Esplanade to his
house to Taratala Road. On the way he saw a gathering
near High-Tech Logistic Centre. He further stated that
while he was standing there, one police officer came and
disclosed that the persons have been apprehended for
dealing in the narcotic drugs. The aforesaid persons were
informed of their legal right to be searched in presence of
a Magistrate or a Gazetted Officer. Sometimes letter a
police officer namely Tapan Mandal arrived there.
24. PW 4 also stated that on search of the police
personnel, nothing was recovered. Thereafter the search
was conducted upon the detained persons. On such
search, narcotic substances were recovered from the
possession of one of the accused. PW 4 identified two of
the appellants namely Hazrat Ali Molla and Fazar Ali
dorzi in court. He also identified his signatures on
Exhibits 3,4 and 5 and also on the labels attached to the
Mat Exhibits. He further stated that his statement was
recorded on the place of occurrence itself.
25. The second investigating officer was examined
as PW6. He has stated that on June 2, 2017 he was
directed by his superior to cause further investigation of
Taratala PS Case No 100/2017. Accordingly, he went to
PS, lodged a GDE and took over charge of investigation of
the said case. In course of investigation PW6 interrogated
the arrested accused persons. He also received the seized
alamats from Taratala PS Malkhana, making proper
entries in the Malkhana register. He also took over of the
custody arrested persons by making necessary entries in
the lock-up register. PW6 further stated that in course of
investigation he went to the First Information Report,
written complaint and other materials in the case diary.
He also recorded the statement of SI Goutam Roy under
section 161 of the code of criminal procedure, visited the
place of occurrence at 1/1 Taratala Road, in front of
High-Tech Centre. Thereafter, PW6 returned to Lalbazar,
deposited the seized alamats with the Malkhana of
Lalbazar. He has tendered the requisition and the good
and receipt issued by the Malkhana which were marked
as Exhibit 22 series.
26. PW5 also sent the seized alamats for chemical
examination on June 5, 2017 to State Drugs Control and
Research Laboratory (SDCR), Kolkata. On August 16,
2017, PW6 received the chemical examination report
which was tendered in evidence and was marked as
Exhibit 23. PW6 also stated that in course of his
investigation he took all the steps required under section
52 A of the Narcotic Drugs and Psychotropic Substances
act, 1985. An inventory of the seized articles was
prepared and certified by learned Judicial Magistrate,
Alipore. Such inventory was marked as Exhibit 24. The
photographs taken at the time of sampling and
certification of the seized articles were tendered in
evidence and marked as Exhibit 25 series. He also proved
his signature on the sample packets prepared in
presence of learned Judicial Magistrate.
27. After the evidence on behalf of the prosecution
was concluded, the appellants were examined under
Section 313 of the Code of Criminal Procedure. In course
of such examination, the appellants claimed to be
innocent having committed no offence at all. They also
claimed to be falsely implicated in the case. One of the
appellants, in such examination, stated that he was
picked up by Swarupnagar Police at about 5.20 am on
May 31, 2017 from his house. He claimed that the police
was looking for one Pradip. He was asked by the police to
identify the house of said Pradip. There the parents and
wife of the said appellant i.e. Dinesh Sarkar also arrived.
He was asked to call the said Pradip over phone which he
did but thereafter, the phone went switched off. After that
the said appellant was taken to Lalbazar. He was also
taken to Taratala PS at midnight 12.00. His parents and
wife visited Lalbazar Police Station at 12.00 noon. At 1.00
pm he was taken to Taratala PS where he remained
detained for another two days. Thereafter, he was
brought to Lalbazar where he was detained for 13 days.
28. The appellant, Fazar Ali Dorzi, in his
examination under section 313 of the Code of Criminal
Procedure, also came up with a similar case that he was
picked up by Swarupnagar police from his residence. The
police came to his house and enquired about certain
phone numbers. The elder brother and wife of the said
appellant went in search of the appellant Fazar Ali Dorzi
to Swarupnagar police station. Thereafter three sons of
the said appellant went to Lalbazar were their phones
were returned. His sons also met him at Lalbazar at
about 11/12 o'clock in the loan and returned back to
their houses. On the said date at about 11/12 in the
night, the said appellant was taken to a police station
and back to Lalbazar and on the following day he was
produced before the court. The police took his police
custody and he was detained in Lalbazar for 12 days.
29. Apart from the advancing arguments, it was
submitted on behalf of the appellants that the appellants
were not at all involved in connection with the case.
Nothing was recovered from their possession. It was
contended that the appellants were taken up from their
respective houses in the morning on May 31, 2017 by the
appellants personally and were taken to Lalbazar. The
prosecution stated that they were arrested from the place
of occurrence situated within Taratala P.S. in possession
of Cannabis resin is out and out false.
30. It is also contended on behalf of the appellants
that the case made out by the prosecution regarding the
raid conducted within the jurisdiction of Taratala PS and
a recovery of contraband articles from the possession of
the appellants has submitted that the police was in
search of one 'Pradip' and the appellants were arrested in
connection with the said search.
31. Learned advocate for the appellants also
challenged the credibility of the search and seizure. It
was contended that the shop owner in front of whose
shop, the search and seizure is said to have taken place
was not examined as independent witness. On the
contrary, the two independent persons who stood witness
to the search and seizure were residents of a place far
away from the place of occurrence. Moreover, they were
not named in the written complaint or the GDE lodged by
the gazette officer. It was also contended that the
individual one and the independent witnesses was
examined on behalf of the prosecution. The other
independent witness did not adduce at the trial leading
to an adverse inference against the case of the
prosecution.
32. Learned advocate for the appellant also pointed
out certain discrepancies /contradictions in the
statement of the witness examined on behalf of the
prosecution. Referring to the deposition of PW4, it has
been pointed out that the said witnesses failed to identify
one of the appellants in Court. The same description of
the identification of the particulars recovered has also
been highlighted on behalf of the appellants. It has been
submitted that the statement made on behalf of PW4
raises a genuine doubt regarding his presence at the
place of occurrence wherefrom the search and seizure
was made.
33. Learned advocate for the appellants also
submits that the raiding team consisted of at least five
police personnel and out of them only one has been
examined as prosecution witness. It is submitted that no
explanation whatsoever has been offered on behalf of the
prosecution for non-production of the other members of
the raiding team which necessarily entails an adverse
inference. Doubts have been expressed on behalf of the
appellants over the fact that the members of the raiding
team have not signed on any documents including the
seizure list. Moreover, the driver of the vehicle by which
the raiding team reached the place of occurrence was not
examined. No GDE in this regard was lodged and the
official vehicle was produced on behalf of the prosecution
to establish allocation of the vehicle for the purpose of
conducting search and seizure. Learned advocate for the
appellants also submitted the presence of the gazette
officer at the relevant times and place of occurrence has
been challenged on the ground that PW2 claimed to have
written the second option in his own hand writing but
later on it was turned out to be written by PW1 under the
dictation of PW2. In the assessment of learned advocate
for the appellants, the discrepancy was of such a
magnitude which vitiated the entire trial.
34. It was further contended on behalf of the
appellants that the polythene packets which originally
contained the seized contraband were not produced at
the trial. In support of such contention, learned advocate
for the appellant relied upon the case of Noor Aga Versus
State of Punjab and anr.) reported in (2008) 16 SCC
417. Relying upon the aforesaid decision, it was further
contended that the seized contraband articles were also
not produced at the trial for which the trial was vitiated
and the appellant should not have been convicted.
35. It was further contended that the inventory of the
seized contraband and its photographs prepared in the
presence of learned Judicial Magistrate were vague and
insufficient which could not have been treated as a
substitute of the production of the original seized
contraband. It has been contended on behalf of the
learned advocate for the appellants as the provisions
contained under Section 52 A (4) of the NDPS Act
contemplates for proof of the inventory, photographs and
the list of samples. In the instant case, however, the
prosecution has proved the photographs of the envelope
allegedly containing the samples instead of samples
itself, which according to the learned advocate for the
appellant is fatal to the case of the prosecution.
Moreover, the inventory contained no particulars of the
contents of the envelopes.
36. The appellants adduced six defense witnesses in
support of their case.
37. The wife of appellant Hazrat Ali Molla deposed as
DW 1. She stated that on May 31, 2017 at about 5:30
AM, police came to her house and took her husband. She
further stated that at first she did not open the gate as
the police asked her husband to meet the officer in
charge. Later on, if intervention of local panchayat
Prodhan, the police was able to take her husband for
interrogation. At about 1 PM on the said date, she went
to Lalbazar and had her entry through Gate No. 1 by
putting her Left Thumb Impression. Her identity was
recorded. She was accompanied by her son Hasan Molla.
She further stated that while talking to her husband she
noticed to other persons present there. She later came to
know of the said persons as Danish Sarkar and Fazar Ali
Dorzi. She has also stated in her deposition that at that
time she also noticed that parents and wife of appellant
Dinesh Sarkar and three sons of Fazar Ali Dorzi were
also present. She left Lalbazar through Gate No. 2 where
the permission slips were taken back. She has also
stated that she was informed that her husband would be
released on the following day.
38. The son of appellant Hazrat Ali Molla was examined
as DW 2. He has corroborated the statement made by her
mother DW 1. He stated that on May 31, 2017 at 5:30
AM, police persons came to his house. They called upon
his father and disclosed that they were from Lalbazar. At
first father of DW 2 did not open the gate but later on
upon intervention of the local panchayat Prodhan namely
Din Mohamed, his father agreed to cooperate. PW 2 was
asked by the police to come to Lalbazar while taking his
father. Accordingly he went to meet his father at about 1
PM with his mother. He was informed by his mother that
she had talked to his father and that he could not be
released due to paucity of time.
39. The son of the appellant Fazar Ali Dorzi deposed as
DW 3. He stated that on made 31 2017 at about three a
in the morning, when they were taking 'seheri' with his
father and other family members police came and asked
for his father. His father was taken by the police. On
enquiry, he was informed that his father was taken to the
officer in charge for interrogation at Lalbazar. DW 3 also
stated that on the same day at about 1 PM he along with
his two brothers Bablu Dorzi and Safikur dorzi, he went
to meet his father at Lalbazar. There the noticed that the
parents and wife of the appellant Dinesh were also
present there. DW 3 also stated that he entered into
Lalbazar through Gate No.1 by putting their signature.
His photographs were also taken and when he met his
father, the appellants Dinesh Sarkar and Hazrat Ali Molla
were also present. The wife of Hazrat Ali Molla was also
present there. He was assured by the police personnel
that his father would be released on the following day. He
left Lalbazar through Gate No. 2 where the gate passes
were taken back.
40. Brother of DW 3 deposed as DW 4. He has made a
statement similar to DW 3. He stated that on May 31,
2017 at about 3 AM in the morning when his father and
other family members were observing sshery', his father
was arrested by police from Lalbazar. He also stated that
on the said date he along with his two brothers visited
Lalbazar at about 1.30/2.00 p.m. In the morning, they
visited Swarupnagar PS. He further stated that they
entered into Lalbazar through Gate No. 1 where his
signature and photographs were taken. He met his father
and noticed that appellant Dinesh and one another
person were also there. DW 4 further stated that he was
informed that the officer in charge had some talks with
his father and he will be released thereafter.
Subsequently he came to know that his father was
arrested in connection with a case of Taratala PS. He left
Lalbazar through Gate No. 2.
41. Another brother of DW3 and DW4 deposed as DW 5.
He has corroborated the statements made by DW 3 and
DW 4. He also visited Lalbazar with his brothers to meet
his father. He claimed to have entered Lalbazar through
Gate No. 1 at about 1 PM. His signature's and
photographs were taken at the time of entry. Thereafter
he met his father where the other appellant Dinesh and
his family members were also present. He has also stated
that he was assured by police that his father will be
released on the following day whereupon he along with
his brothers exited through Gate No. 2.
42. The Punchayat Prodhan, Sk. Din Mohamed was
examined as DW 6. He tendered to the documents
regarding his candidature as Prodhan and that he was
put on. In his deposition, he stated that on May 31,
2017, at about 5:30 AM in the morning he received a
phone call from the appellant Hazrat Ali Molla informing
him that police has come to his house. DW 6 rushed to
the house of the said appellant and found appellant
Hazrat Ali Molla and his wife with his sons Hasan Molla
Mukul Molla inside the house. He also noticed police
persons present there. They disclosed that they
wherefrom Lalbazar PS and wanted to take appellant
Hazrat Ali Molla to Lalbazar for some interrogation. He
also stated that he believed the statement of the police
personnel and persuaded the appellant and his family
members to cooperate whereupon the appellant Hazrat
Ali Molla agreed to accompany the police. Thereafter he
was taken by the police. DW 6 also advised the wife and
sons of the said appellant to visit Lalbazar which they
did. After returning from Lalbazar, the sons of the
appellant told him that his father acted on the assurance
of DW 6 but the police did not keep their assurance and
arrested their father in a heavy case.
43. According to the case of the prosecution, on the
basis of the source information the raiding officer
proceeded to conduct the raid at 1/1 Taratala Road in
front of Hi-tech Centre. Therefore, he nabbed the three
appellants and on search, the narcotic contrabands in
the category of charas were recovered from their
possession. The evidence of the officer conducting search
and seizure, PW1 discloses that 356 grams of charas and
a sum of Rs. 110/- was recovered from the possession of
the appellant Hazrat Ali Molla. 565 grams of charas and
a sum of Rs. 120/- from the possession of the appellant
Dinesh Sarkar and 351 grams of charas and a sum of Rs.
150/- was recovered from the possession of the accused
Fazar Ali Darji. The evidence on record also goes to show
that the appellants were first detained on the basis of the
source information. Since a personal search was
proposed, a notice under Section 50 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 being
option one was duly served upon the detained persons.
Exhibit 5 series are the option from which were served
upon the appellants. Such exhibit contains the signature
of the appellant Hazrat Ali Molla and Dinesh Sarkar and
left thumb impression of the Fazar Ali Darji. It also bears
the signature of the witnesses and also signature of at
least one of the members of the raiding team.
44. According to PW1, upon service of the notice
under Section 50 of the NDPS Act, when the appellants
opted to be searched in presence of a gazette officer, he
searched for a gazette officer in the locality and having
failed to find such officer, he informed the matter to his
superior. Accordingly, being instructed by his superior
and making relevant entries in a GDE, PW2 arrived at the
place of occurrence to act as a gazette officer being the
additional officer-in-charge of Taratala PS. Upon his
arrival at the place of occurrence, PW2 served the second
option upon the appellant which was also received and
signed by the appellant. The appellant Fazar Ali Darji put
his LTI on the second option. The second option was also
signed by the independent witnesses as well as the
members of the raiding team Exhibit 3 series is such
signature upon the form duly signed by the appellant.
Therefore, on the basis of such evidence including
Exhibit 3 series and exhibit 5 series, it is well-established
that the search and seizure was made at 1/1 Taratala
Road in front of Hi-tech Centre, Hi-tech logistic limited in
due compliance with the provisions of Section 50 of the
NDPS Act.
45. As noted above, contraband charas were
recovered from the possession of the appellants in course
of such search which was seized by PW1 under a seizure
list prepared at the place of occurrence (Exhibit 4). The
said seizure list dated May 31, 2017 was also signed by
the appellants. The appellant Fazar Ali Darji put his left
hand impression on it. It also bore the signature of the
independent witnesses as well as the members of the
raiding team. No explanation whatsoever has been
advanced on behalf of the appellants regarding the
signature / left thumb impression on the search and
seizure list. Subsequently, the appellants were arrested,
memo of arrest Exhibit 6, Exhibit 7 and Exhibit 8 and
the inspection memos Exhibit 9, Exhibit 10 and Exhibit
11 also bear the signature/left thumb impression of the
appellants. Thereafter, the appellants were taken to
Taratala PS where written complaint was lodged by PW1
(Exhibit 12). On the basis of such written complaint,
specific case under Section 20 (b) (ii) (c) / 29 of the NDPS
Act being Taratala PS case dated May 31, 2017 was
started against the appellants (Exhibit 17).
46. According to the statement of PW1, upon search
and seizure and recovery of narcotic contrabrands from
the possession of the appellants, the seized articles were
duly sealed and labeled. The seized articles under seal
and label were handed over to the officer-in-charge,
Taratala PS. PW3 in his deposition has stated that he
filled up the formal FIR (Exhibit 17) and started the
specific case. He also received the written complaint
together with the accused persons and the seized articles
under the direction from the officer-in-charge of Taratala
PS which he committed after lodging a GDE in this
regard (Exhibit 18). He has also stated that he deposited
the seized articles in the PS Malkhana. He tendered the
relevant entries in the Malkhana register which was
marked as Exhibit 18. Exhibit 18 goes to show that these
packets containing specific markings being Exhibit A to
Exhibit F were deposited with the Malkhana register. He
also identified the appellant persons who were handed
over to him by the police officers of ADRS. On May 31,
2017, PW3 also proved the sealed packets of the seized
articles which were marked as MAT Exhibit I to MAT
Exhibit VI respectively and the signature thereon. He
further stated that under the direction from the Deputy
Commissioner, Detective Department, he handed over
the investigation of the case to PW5.
47. PW5 in his deposition acknowledged being the
second investigating officer of this case, the receipt of the
docket. He corroborated the testimony of PW3 that he
endorese with the investigation of the case as per the
direction of the Deputy Commissioner, Detective
Department Special on June 02, 2017. Being so endorsed
with the investigation, he made that the officer-in-charge
of Taratala PS and the previous investigating officer.
Thereafter, he received the case diary and the accused
persons whom he identified at the trial. He further
received the seized articles being marked with A,B,C,D,E
and F on proper receipt in the Malkhana register. The
receipt in the register was marked as Exhibit 18. Exhibit
22 series goes to show that the second Investigating
Officer deposited the seized articles with the Lalbazar
Malkhana after receiving the same from the Taratala PS.
He send those articles for chemical examination to
SDCRL, Kolkata on June 05, 2017 and received its report
on August 16, 2017(Exhibt 23). Thereafter, he submitted
the charge sheet in the case. PW5 has also stated that he
took steps for preparation of inventory and photographs
of the seized articles in terms of Section 52 of the NDPS
Act. The inventory and the photographs prepared and
taken in presence of the learned Judicial Magistrate, 7th
Court at Alipore was duly certified by the said magistrate
(Exhibit 24 and 27). PW5 has also identified the packets
containing the seized articles produced in court, which
were earlier received by him (MAT Exhibit I to MAT
Exhibit VI). Besides that, PW5 also stated that sampling
was also done and he identified the sample packet
prepared and certified by the learned magistrate (MAT
Exhibit VII, VIII and IX) together with his signatures on
such sample packets.
48. Therefore, from the evidence on record, it
transpires that the appellants were apprehended at 1/1
Taratala Road in front of Hi-tech Logistic Limited. A
search on their person was conducted after due service of
notices under Section 50 of the NDPS Act. A Gazetted
Officer, PW2 was engaged in the process of such search.
The gazette officer PW 2 also served the second option
upon the appellants. The appellants opted and agreed in
writing to be searched in presence of gazette officer. Upon
such search being conducted by PW1 in presence of PW2
and independent witnesses, contraband charas was
recovered from the possession of the appellants. The
appellants failed to give any satisfactory answer
regarding the possession of such contraband for which
they were arrested and the contrabands recovered from
their possession were seized. No plausible explanation is
forthcoming on the part of the appellants regarding their
signatures /left thumb impressions on the seizure list 4,
the option forms under section 50 of the NDPS Act being
Exhibit 3 series and Exhibit 5 series. The appellants also
proved their signatures / left thumb impressions on the
memo of arrest and the inspection memo from which
they were arrested. There is no explanation regarding
their signatures /left thumb impressions of such arrest
memo Exhibits 6,7,8,9 and 11.
49. Thereafter, PW1 brought the seized articles and
the appellants to Taratala PS where he lodged the written
complaint (Exhibit 12) on the basis of which a specific
case was started against the appellants under the
provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1985. With the help of the aforesaid
evidence, it is evident that the prosecution has been able
to prove that the appellants were found in possession of
the narcotic contraband under the category of Charas.
The seized articles were sent for chemical examination by
PW5. PW5 also received the report with regard to the
aforesaid articles from the SDCRL, Kolkata. Exhibit 23 is
the said report which proves that the articles seizesd
from the possession of the appellants were charas which
fell under the purview of the Narcotic and Psychotropic
Substances Act, 1985. It further transpires from the
evidence on record that the investigating officer applied
for the said certification of the inventory and photographs
of the seized articles which was done by learned 7th
Judicial Magistrate, Alipore being Exhibit 24. The
sampling was also made in presence of the learned
Magistrate and the sample packets were produced in
Court which were identified by the investigating officer
PW5 as Exhibit 7,8 and 9. Such evidence on behalf of the
prosecution goes to establish that the appellants were
found in illegal possession of charas.
50. A case has been made out on behalf of the
appellants that having been falsely implicated in this
case. It is therefore a positive case that they were picked
up by the police from their respective residences and
were planted in the case with an allegation that they were
carrying narcotic contraband. They have claimed to have
been picked up in the early morning of May 31, 2017 and
were shown in possession of narcotic substances at
Taratala Road in the evening. In support of such case,
the appellants have adduced six defence witnesses. The
defence witnesses have stated that the appellants were
picked up by the police in the early morning. They have
also stated that the parents, wives and the children of the
appellants visited Lalbazar. They met with the appellants
in Lalbazar and assured by the police that the appellants
would be released. Almost all the witnesses on behalf of
the defence have stated that they entered into Lalbazar
through Gate No. 1. Their signatures and photography
were taken at the time of entry. After meeting the
appellants, they left Lalbzar through Gate No. 2 where
the visiting passes were surrendered by DW1 to DW5.
They were assured by the police that the appellants
would be released but later on they came to know that
the appellants were implicated in this case.
51. Besides the oral action of the defence witnesses,
nothing has been produced on behalf of the defence that
the appellants were actually in their village and
residences when they were picked up by the police.
Although they have stated that they met with the
appellants at Lalbazar on that very day i.e. on May 31,
2017 and they were issued with visiting pass for entry
into the Lalbazards premises but no evidence in this
regard has been produced on behalf of the appellants. No
steps either were taken on behalf of the appellants for the
production of the visitors' register, CCTV footage from the
register containing the entries regarding issuance of
visitors' passes to establish that the defence witnesses
actually visited Lalbazar premises on the date they
claimed to have visited. The evidence itself on behalf of
the defence has also not been able to establish that the
defence witnesses actually visited Lalbazar premises in
order to meet the appellants and that they were assured
by the police that the appellants would be released . In
view of that facts, we are of the opinion that the
appellants have not been able to establish conclusively
that they were picked up by the police from their
respective residences in the early morning of May 31,
2017.
52. One of the appellants is said to have given a call
upon the mobile of one Pradip at the request of the
police. It has been stated that after such call by the said
appellant, the said Pradip allegedly switched off his
mobile. The appellants could have taken steps to bring
the call detail reports on record in order to establish that
he actually called in the mobile of the aforesaid Pradip.
53. As noted above, the appellants have claimed to
have been planted in this case deliberately by the police.
No case of alibi has been made out on behalf of the
appellants. As such, the case of Darshan Singh versus
State of Punjab (2016) 3 SCC 37 and Vijay Pal versus
State of Haryana has no manner of application in the
facts and circumstances of the present case.
54. Learned advocate for the appellant has also taken
up a plea that the weight of the seized articles from the
possession of the appellants is not consistent with that
sent to SDCRL, Kolkata for chemical examination. In the
case of Rajesh Jagadamba Avasthi reported in (2005) 9
SCC 773, the Hon'ble Supreme Court was pleased to held
that,
"14. We do not find it possible to uphold this
finding of the High Court. The appellant was
charged of having been found in possession of
charas weighing 180.70 gm. The charas
recovered from him was packed and sealed in
two envelopes. When the said envelopes were
opened in the laboratory by the Junior Scientific
Officer, PW1, he found the quantity to be
different. While in one envelope the difference
was only minimal, in the other the difference in
weight was significant. The High Court itself
found that it could not be described as a mere
minor discrepancy. Learned counsel rightly
submitted before us that the High Court was not
justified in upholding the conviction of the
appellant on the basis of what was recovered
only from envelope A ignoring the quantity of
charas found in envelope B. This is because
there was only one search and seizure, and
whatever was recovered from the appellant was
packed in two envelopes. The credibility of the
recovery proceeding is considerably eroded if it
is found that the quantity actually found by PW1
was less than the quantity sealed and sent to
him. As he rightly emphasized, the question was
not how much was seized, but whether there was
an actual seizure, and whether what was seized
was really sent for chemical analysis to PW1.
The prosecution has not been able to explain
this discrepancy and, therefore, it renders the
case of the prosecution doubtful."
55. However, in the instant case, as it transpires
from the evidence on record that 356 grams + 565 grams
+351 grams i.e. a total of 1272 grams of charas was
seized from the possession of the three appellants.
Exhibit 24 goes to show that 1212 grams of seized
contraband was certified by the learned Magistrate. The
chemical examiner found remnant weight of 1275 grams
of the seized contraband which was received by him. The
chemical examiner received the said articles with intact
seal which tallied with its specimen. The difference in
weight of the seized contraband if any is too minimal to
tell upon the veracity of the search and seizure. On such
proposition, Learned advocate for the State has relied
upon the case of State by CBI Vs Dilbagh (2004)13 SCC
99 wherein it was laid down by the Hon'ble Court that,
"11. It was next urged that in view of the
difference in weight, this Court should give
benefit of doubt to the respondent. It was urged
that difference in weight supports the
respondent that he has been falsely implicated
in this case. In view of the evidence, including
the evidence of the independent witnesses it is
not possible to accept this submission. In our
view, the defence taken appears to be highly
improbable."
56. Learned advocate for the appellant relied upon
the case of State of Rajasthan Vs. Gurmail Singh:
(2005) 3 SCC 59. The said case, the Hon'ble Supreme
Court found the link evidence adduced on behalf of the
prosecution and found satisfactory and on the basis of
such evidence was pleased to uphold the acquittal.
However, in the present case, there is convincing
evidence that the seized articles were brought to Taltala
PS after completion of the search and seizure. It was
deposited that the Malkhana of Taratala PS under proper
entries made in the Malkhana register (Exhibit 18) on the
date of the search and seizure i.e. on May 31, 2017. The
said articles were received by PW5 on proper receipt in
the Malkhana register on June 2, 2017 and the same was
deposited with the Malkhana of Lalbazar Narcotic Cell
where from it was sent for chemical examination on June
04, 2017. There appears to be no discrepancy in the
chain of custody of the seized articles right from the time
of its seizure till it was sent for chemical examination to
State Drug Control and Research Laboratory (SDCRL),
Kolkata. The chain of custody of such article is complete
and compact. Therefore, there is nothing on record to
suggest any hole in the custody of the seized Alamats.
57. The learned advocate for the appellant also relied
upon (2008) 16 SCC 417 Noor Aga versus State of Punjab
and Anr. on the proposition that the original polythene
packets recovered containing the contraband seized from
the possession of the appellants were not produced
before the Court. The evidence on record goes to
establish that the contrabands were seized and upon
such seizure, the contrabands were packed, sealed and
labeled by the searching officer. These were deposited
with the Malkhana of Taratala PS under the control of
the first investigating officer. Later on, the second
investigating officer received the same and applied for its
sampling inventory and photography. The same were
done in presence of learned Magistrate and thereafter the
articles were sent for chemical examination, the report of
the chemical examiner together with the sealed packets
so sent for chemical examination were proved at the trial.
Mere non-production of the polythene packets which
contained the contraband at the time of its seizure from
the possession of the appellants cannot vitiate the trial.
The appellant has not been able to prove any prejudice
cause due to non-production of the polythene packets.
58. On such proposition, the learned advocate for
the State has relied upon the decision in the case of
State of Rajasthan versus Sahi Ram (2019) 10 SCC
649 and Than Kunwar vs. State of Haryana (2020) 5
SCC 260. The Hon'ble Supreme in the case of Than
Kunwar (Supra) was pleased to hold in following terms
that's to say:
"30. The Court also went to hold in Sahi
Ram [State of Rajasthan v. Sahi Ram, (2019) 10
SCC 649 : (2020) 1 SCC (Cri) 85] that if seizure
is otherwise proved on record and it is not even
doubted or disputed, it need not be placed
before the Court. The Court further held that if
the seizure is otherwise proved what is required
to be proved is the fact that samples taken out
of a contraband are kept intact. This Court held
as follows : (SCC pp. 657-58, paras 15-16 & 18)
"15. It is true that in all the aforesaid cases
submission was advanced on behalf of the
accused that failure to produce contraband
material before the court ought to result in
acquittal of the accused. However, in none of
the aforesaid cases the said submission
singularly weighed with this Court to extend
benefit of acquittal only on that ground. As is
clear from the decision of this Court
in Jitendra [Jitendra v. State of M.P., (2004) 10
SCC 562 : 2004 SCC (Cri) 2028] , apart from the
aforesaid submission other facets of the matter
also weighed with the court which is evident
from paras 7 to 9 of the decision. Similarly
in Ashok [Ashok v. State of M.P., (2011) 5 SCC
123 : (2011) 2 SCC (Cri) 547] , the fact that there
was no explanation where the seized substance
was kept (para 11) and the further fact that
there was no evidence to connect the forensic
report with the substance that was seized (para
12) were also relied upon while extending
benefit of doubt in favour of the accused.
Similarly, in Vijay Jain [Vijay Jain v. State of
M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276]
, the fact that the evidence on record did not
establish that the material was seized from the
appellants, was one of the relevant
circumstances. In the latest decision of this
Court in Vijay Pandey [Vijay Pandey v. State of
U.P., (2019) 18 SCC 215] , again the fact that
there was no evidence to connect the forensic
report with the substance that was seized was
also relied upon to extend the benefit of
acquittal.
16. It is thus clear that in none of the
decisions of this Court, non-production of the
contraband material before the court has
singularly been found to be sufficient to grant
the benefit of acquittal.
***
18. If the seizure of the material is otherwise
proved on record and is not even doubted or
disputed, the entire contraband material need
not be placed before the court. If the seizure is
otherwise not in doubt, there is no requirement
that the entire material ought to be produced
before the court. At times the material could be
so bulky, for instance as in the present material
when those 7 bags weighed 223 kg that it may
not be possible and feasible to produce the
entire bulk before the court. If the seizure is
otherwise proved, what is required to be proved
is the fact that the samples taken from and out
of the contraband material were kept intact,
that when the samples were submitted for
forensic examination the seals were intact, that
the report of the forensic experts shows the
potency, nature and quality of the contraband
material and that based on such material, the
essential ingredients constituting an offence
are made out."
59. Therefore, as noted above, in the instant case,
since the chain of the seized articles proved convincingly
on behalf of the accused prosecution. Non-production of
the polythene packets does not vitiate the case of the
prosecution.
60. The learned advocate for the State has relied
upon the case of Surindar Kumar versus State of
Punjab (2020) 2 SCC 563. In the aforesaid decision, it
was observed by the Hon'ble Supreme Court quoting the
case of Jarlail Singh versus State of Punjab that merely
because prosecution did not examine any independent
witnesses, would not necessarily lead to conclusion that
the accused was falsely implicated. The evidence of
official witnesses cannot be distrusted and disbelieved
merely on account of their official status. In the instant
case, however, one of the witnesses to the search and
seizure has not been examined as PW4 and he has amply
corroborated the case of the prosecution. The defence
was not able to extract anything favourable to them or
stated the credibility of such witnesses upon his cross-
examination.
61. On the basis of the discussion made
hereinbefore, we are convinced that the prosecution
has been able to prove the charges leveled against the
appellants/convicts with the help of convincing evidence.
The impugned judgment of conviction dated December
08, 2021 and order of sentence dated December 10,
2021, passed by the learned 4th Additional Sessions
Judge, Alipore, South 24 Parganas in connection with
Sessions Trail No. 3(1) of 2018 appears to be well
founded on the basis of convincing evidences, sufficient
enough to base a conviction upon and does not warrant
interference in the facts and circumstances of the case.
We affirm the same.
62. Accordingly, the appeal being CRA(DB)15 of 2022
& IA NO: C.R.A.N. 1 of 2022 are hereby dismissed.
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.]
