Calcutta High Court (Appellete Side)
Gouri Das vs State Of West Bengal on 27 September, 2024
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Prasenjit Biswas
CRA (DB) 116 Of 2024
Gouri Das
Vs.
State of West Bengal
With
I.A No. CRAN 1 of 2024
With
CRA (DB) 117 of 2024
With
Joydeb Das
Vs.
State of West Bengal
For the Appellant
in both the appeals : Mr. Soubhik Mitter, Adv.
Mr. Joy Chakraborty, Adv.
Mr. Sandip Dinda, Adv.
Ms. Ipsita Ghosh, Adv.
Mr. Ranjit Malakar, Adv.
For the State
in both the appeals : Mr. Rudradipta Nandy, Ld. APP
Hearing Concluded on : 20th September, 2024
Judgment on : 27th September, 2024
Prasenjit Biswas, J.
In Re: CRAN 1 of 2024
1. The applicant/ petitioner has filed this application seeking for suspension of
sentence awarded by the learned Special Judge under NDPS Act, 4th Court, Alipore,
South 24 Parganas in Session Trial No. 8(1) 2022; NDPS Case No. 101 of 2019;
Sessions Case 10(12)2020 vide which the applicant was sentenced to undergo
Rigorous Imprisonment (RI) for 15 years and also to pay a fine of Rs. 1,50,000/- in
default further Rigorous Imprisonment (RI) for 1 year for the offence punishable under
Section 29/20(b)(II)(C) of the Narcotics Drugs and Psychotropic Substances Act.
2. It is stated by the petitioner that the husband of this petitioner namely Joydeb
Das was intercepted near New Dutta Nursery, Sealdah Court and subsequently
arrested and 01 Kg 100 gms Charas was recovered from his possession. Sample of the
seized contrabands were taken from the spot and marked and leveled as "S1" & "S2"
in the absence of the magistrate violating the provisions as enumerated in Section
52(A) of the NDPS Act. During investigation the convict Joydeb Das stated that he had
some other associates who worked for him in his alleged drug trade and stated that he
stored huge quantity of drugs in his residence at Tangra and this petitioner convict
Gouri Das worked for his drug business. Immediately after that the de-facto
complainant and other leading team members along with the Gazetted Officer went to
the house of Joydeb and after thorough search recovered two cubodial shape block of
flowering and fruiting tops of cannabis plant commonly called Ganja total weighing
about 21 Kgs 800 gms and one digital weighing machine. Sample weighing about 50
gms was taken out from the mother items in absence of Magistrate and prepared
seizure list in presence of the witnesses.
3. It is stated by the learned Counsel appearing on behalf of the petitioner that
samples of the contraband were drawn out at the place of seizure and not before the
Magistrate which is a clear violation of Section 52(A) of the NDPS Act. No compliance
of Section 52(A) of the NDPS Act was made and no representative sample was drawn
in presence of Magistrate and sent for chemical examination. It is specifically
submitted by the learned Counsel that the sample which was sent for test was not
taken in presence of Magistrate but also from the spot which is contrary to the
provision of law laid down in the NDPS Act as well as the judgment of the Hon'ble
Apex Court. It is further submitted by the learned Counsel that on 04.12.2019
samples were received at SDCRL for examination and sample of burnt contraband was
sent to FSL on 06.01.2020 where as an application under Section 52(A) of NDPS Act
was moved by the learned Advocate for the State before the Trial Court and the said
application was rejected by the learned Judge on the same date. So, it is apparent
from the dates that before allowing the application by the Court the samples which
were drawn at the spot in the absence of Magistrate were sent for chemical analysis
which is according to the learned Counsel for the petitioner is impermissible having
regard to the mandate of Section 52(A) of the NDPS Act.
4. It is further submitted by the learned Counsel for the petitioner that as the
samples were not sent for chemical analysis in terms of Section 52(A) of the NDPS Act
the materials in the form of sampling done at the spot will have to be completely
disregarded even at the stage of consideration of the bail application. Such seizure is
rendered suspicious which should enure the benefit of the applicant for enlarging him
on bail as there is a breach on mandatory compliance of Section 52(A) of the NDPS
Act. It is asserted that the applicant has a prima facie arguable case in her favour.
This applicant is not a previous convict and has no criminal antecedent. It is
submitted by the learned Counsel that the learned Trial Court had failed to consider
that sample which was sent for test was not taken in presence of Magistrate but also
from the spot which is a clear violation of the law laid down in the NDPS Act as well as
judgment passed by the Hon'ble Apex Court.
5. It is prayed on behalf of the petitioner that if the execution of the judgment is
not suspended this petitioner being the mother of a two school going children would
suffer irreparable loss.
6. Learned Advocate for the State opposes the prayer for suspension of sentence.
It is submitted that the contraband articles were recovered from the house of the
appellant. Learned Advocate justified the action of the police in drawing samples at
the time of seizure. The samples were immediately sent to the State Forensic Science
Laboratory (FSL) for analysis. It is said that the decision of the Apex Court relied upon
by the learned Counsel for the applicant is not of assistance to the applicant as the
same is rendered upon appreciation of evidence adduced during the trial and not at
the stage of bail. The specific embargo is provided in Section 37 of the NDPS Act which
will have to be satisfied. There is nothing in the NDPS Act which prohibits the drawing
of samples at the time of seizure. The veracity of drawing samples post seizure on the
spot is to be tested at the stage of the trial.
7. It is further submitted by the learned Advocate for the State that chains of
custody of the samples drawn at the spot and examined by the chemical examiner
have been established. Hence the prosecution has proved its case beyond reasonable
doubt.
8. We have considered the rival submissions advanced by the parties and have
considered the evidence on record. It appears that this petitioner convict was
intercepted on 28.11.2019 pursuance to the statement made by her husband i.e.
another convict Joydeb Das. In pursuance of the statement made by the convict
Joydeb Das search was made in their house and 21 Kgs 800 gms Ganja was recovered
but no inventory was prepared and certified by the Magistrate in terms of Section
52(A)(2) of the NDPS Act. No representative samples in presence of the Magistrate were
drawn and sent for chemical examination.
9. The effect of not following the mandate of Section 52-A of the NDPS Act was
considered by the Supreme Court in the case of Yusuf Alias Asif vs. State reported in
2023 SCC OnLine SC 1328 to the following effect:-
"13. Notwithstanding the defence set up from the side of the
respondent in the instant case, no evidence has been brought on
record to the effect that the procedure prescribed under sub-
sections (2), (3) and (4) of Section 52A of the NDPS Act was followed
while making the seizure and drawing sample such as preparing
the inventory and getting it certified by the Magistrate. No evidence
has also been brought on record that the samples were drawn in
the presence of the Magistrate and the list of the samples so
drawn were certified by the Magistrate. The mere fact that the
samples were drawn in the presence of a gazetted officer is not
sufficient compliance of the mandate of sub-section (2) of Section
52A of the NDPS Act.
16. In the absence of any material on record to establish that the
samples of the seized contraband were drawn in the presence of
the Magistrate and that the inventory of the seized contraband
was duly seized contraband and the samples drawn therefrom
would not be a valid piece of primary evidence in the trial. Once
there is no primary evidence available, the trial as a whole stands
vitiated."
10. Reliance has been placed by the learned Counsel appearing for the
convict/petitioner upon the decisions rendered by the Hon'ble Apex Court in case of
Union of India Vs. Mohanlal and Anr. reported in (2016) 3 SCC 379, in case of
Simarnjit Singh Vs. State of Punjab reported in 2023 SCC OnLine SC 906 and in
case of Yousuf @ Asif Vs. State reported in 2023 SCC OnLine SC 1328
11. Under such circumstances we are of the prima facie view that there is no
compliance of Section 52(A) of the NDPS Act. The provision of the NDPS are extremely
stringent, coupled with various presumptions raised against the accused and
stringent bail condition all made in the NDPS a very stringent measure of legislation.
It contains necessary safeguards against arbitrary search, seizure and arrest or else it
would foul of the fundamental rights chapter of the constitution of India and hence
the same requires strict adherence to the law and procedure. The technicalities as
provided in the NDPS Act are only safeguard available any prosecuted under the NDPS
Act.
12. The Hon'ble Apex Court in Union of India Vs. Mohanlal and Anr. reported in
(2016) 3 SCC 379 had directed all the investigating agency to draw the representative
sample that are supposed to be sent to the Central Forensic Science Laboratory for
determination of the contraband before the Magistrate. Although the application was
made by the learned P.P before the Trial Court on 18.12.2020 but the same was
rejected by the learned Judge on the same date but the samples which were drawn in
the absence of the Magistrate from the spot were received and sent by the SDCRL and
FSL on 04.12.2019 and 06.01.2020. The Apex Court categorically stated in his
decision that the drawing of the samples at the time of seizure of the contraband in
the absence of Magistrate is impermissible and such drawing of sample is in the teeth
of Section 52 (A) of the NDPS Act.
13. A Co-ordinate Bench of this Court in similar circumstances in the case of Bijay
Sankar Jha @ Bijay Shankar Jha & Anr. in connection with CRA (DB) 12 of 2024
observed as follows:-
"3. We have considered the evidence on record. Prosecution
witnesses deposed 23kgs of Ganja was recovered from the house
of the appellant. But no inventory was prepared and certified by
the Magistrate in terms of Section 52A(2) of the NDPS Act. No
representative samples in presence of Magistrate were drawn and
sent for chemical examination.
4. In view of the law declared by the Hon'ble Apex Court in
Bothilal vs. Intelligence Officer, Narcotics Control Bureau and
Mohammad Khalid & Another vs. State of Telangana, chemical
examiner's report prepared on analysis of the samples not drawn
in presence of Magistrate in a 'waste paper'. Primary evidence that
the contraband contained Ganja is founded on the said chemical
examiner's report which is highly doubtful.
5. Under such circumstances, we are of the opinion appellant has
made out an arguable case in appeal. He has suffered
incarceration for more than half of the sentence imposed upon him.
Accordingly, we are of the opinion he has been able to rebut the
statutory restrictions under Section 37 of the NDPS Act. Hence, we
are inclined to suspend the sentence imposed upon the appellant
and enlarge him on bail."
It appears primafacily from the materials on record that no evidence has been
brought by the prosecution to the effect that the procedure as prescribed under
Section 52A(2) of the NDPS Act was followed while making seizure and drawing
samples such as preparing the inventory and getting it certified by the Magistrate. No
evidence has also been brought on record that the samples were drawn in the
presence of the Magistrate and the list of the samples so drawn were certified by the
Magistrate and it indicates that mandate of sub-section 2 of Section 52A of the NDPS
Act has not been complied with. The provision of Section 52A(2)(C) entails that the
samples drawn in the case would be representative of entire bulk and the burden lies
on the prosecution.
14. Considering the submissions advanced by the learned Counsel for the parties,
materials available on record and also considering the evidences and after complying
the principle of law as laid down by the Hon'ble Apex Court in Mohanlal (supra) and
Yusuf @ Asif (supra) we are of the considered opinion that the prosecution has prima
facie failed to establish that the mandate of Section 52A (2) of the NDPS Act has been
complied with at the time of drawing out representative samples in the presence of
Magistrate and sent for chemical examination. The present appellant convict has
made out an arguable case on merit in the appeal. Accordingly, we are of the opinion
that she has been able to rebut the statutory restriction as provided under Section 37
of the NDPS Act. Hence we are inclined to suspend the sentence imposed upon this
appellant and enlarge him on bail.
15. Accordingly, the appellant namely, Gouri Das be released on bail upon
furnishing a bond of 20,000/- (twenty thousand only) with two sureties of like amount
each one of whom must be local to the satisfaction of the learned Additional Sessions
Judge cum Special Judge under NDPS Act, 4th Court, Alipore, South 24 Parganas
subject to condition that the appellant shall appear before the said Judge once in a
month till disposal of the appeal.
16. In the event she failed to do so the learned Judge shall forthwith report such
fact and the department shall place the material before the appropriate Bench for
necessary order.
17. The Application being CRAN 1 of 2024 is disposed of.
18. Paper book be prepared within 8 weeks from the date.
19. Urgent Photostat certified copy of this order, if applied for, be given to the
parties on payment of requisite fees.
I agree
(Soumen Sen, J.) (Prasenjit Biswas, J.)
