Tripura High Court
Shri Dhan Bahadur Chetri vs The State Of Tripura on 2 March, 2021
Page 1 of 55
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) 39 OF 2018
1. Shri Dhan Bahadur Chetri
S/o Shri Harak Bahadur Chetri of
Gurkhabasti (Natun Basti), PS-New Capital Complex,
District:West Tripura.
2. Shri Sanjoy Gowala,
S/o Shri Janam Gowala of Khejhur Bagan,
PS-New Capital Complex, District-West Tripura.
----Appellants
Versus
The State of Tripura.
----Respondent.
For the appellants : Mr. S. Mahajan, Advocate
For the respondent : Mr. S. Ghosh,
Additional Public Prosecutor
Argument heard on : 03.02.2021
Judgment & Order delivered on: 02.03.2021
Whether fit for reporting: Yes
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J)
Challenge here is the judgment and order of conviction and
sentence dated 30.07.2018, passed by the learned Special Judge, West
Tripura, Agartala, Court No.2 in Case No. Special (NDPS) 24 of 2016
whereby and whereunder the appellants were convicted and sentenced to
suffer rigorous imprisonment for 10 years each and further directed to pay
a fine of Rs.1,00,000/- (Rupees one lakh) only each, with default
stipulations for the offence punishable under Section 20(b)(ii)(C) of the
Narcotic Drugs and Psychotropic Substance Act, 1985 (here-in-after to as
NDPS Act).
2. Brief facts:
On being received secret information on 07.09.2016, night at
about 00:56 hours, that one vehicle bearing registration No.NLO1-K-3095
(truck) proceeding towards Gauhati through NH-44 from Sonamura side
via Bishramganj and Bishalgarh with some dry ganja (cannabis), the OC,
Bishalgarh PS had entered the said information in G.D. Book vide G.D.
Entry No.02 dated 07.09.2016. On the basis of said information, a team of
police comprising Officer-in-Charge of Bishalgarh Police Station
accompanied by Sub-Divisional Police Officer (SDPO), Bishalgarh, Sub-
Inspector, P.K. Dey and other police staff took an ambush on „Raster-
matha‟ near railway bridge under Bishalgarh PS on NH-44 and about 02:00
hours detained the said vehicle with its driver Dhan Bahadur Chetri,
Khalasi-Sanjoy Gowala and Assistant, namely, Samuel Koloi. As it was
midnight no independent witness could be collected, the vehicle was
removed to Bishalgarh PS and kept the vehicle under a proper escort and
the Driver, Khalasi and Assistant were kept under detention in the PS. The
matter was accordingly informed to the Superintendent of Police (SP,
Sepahijala) over telephone and simultaneously made a written
communication to depute one senior officer to remain present at the time of
search of the vehicle.
2.2 SDPO, Bishalgarh was deputed to remain present at the time
of search and seizure and to that effect a G.D. Entry was made vide
Bishalgarh PS G.D.Entry No.24, dated 07.09.2016. Some independent
witnesses were arranged by the OC, Bishalgarh PS and thereafter the PS
staff along with OC conducted search over the vehicle in presence of
SDPO, Bishalgarh and independent witnesses. During search, a specially
made secret chamber on the back of the driver cabin was detected and the
same being opened, the police personnel recovered 39 nos. of big plastic
packets containing 25 grams dry ganja in each packet and 31 nos. of small
plastic packet containing 5 Kgs. dry ganja in each packet, in total there
were 1130 Kgs. of dry ganja.
2.3 Thereafter, OC, Bishalgarh PS directed SI of Police Ashutosh
Sharma to take up the investigation. Accordingly, SI, Ashutosh Sharma
took up the investigation of the case and drew samples from each packet in
presence of the witnesses and the recovered contraband goods were seized
under a proper seizure list. Besides, the contraband goods, a cash amount of
Rs.21,500/- were also recovered from the possession of the driver namely
Dhan Bahadur Chetri and the driving license of Dhan Bahadur Chetri was
also recovered from his possession. The vehicle bearing Registration No.
NL01-K-3095 was also seized with all vehicular documents and taken into
custody. Thereafter, the accused persons were arrested as they could not
attribute any satisfactory reply about the possession of dry ganja in the
vehicle. The seized contraband goods were kept in the Malkhana of the
police station.
2.4 Thereafter, OC, Bishalgarh PS, namely, Inspector,
Satyendranath Basu Roy Chowdhury lodged a suo motu complaint and
registered a specific case against the accused persons namely Dhan
Bahadur Chetri, Sanjoy Gowala and Samuel Koloi vide Bishalgarh PS Case
No.2016/BLG/101 dated 07.09.2016 under Section 20(b)(ii)(C) of the
NDPS Act, and the investigation was endorsed to SI, Ashutosh Sharma
followed by handing over of above named accused persons by the OC,
Bishalgarh PS along with the suo motu complaint, printed formal FIR and
the original seizure list.
2.5 Investigation being carried out, SI Ashutosh Sharma seized
approximate 1130 Kgs of dry ganja contained in 70 packets, all original
papers of vehicles, one driving license of driver Dhan Bahadur Chetri,
3(three) nos. of mobile phones and SIM Cards under a proper seizure list in
presence of the witnesses. He also sent the detailed report to the SP (CS),
Sepahijala regarding the arrest and seizure of dry ganja. During
investigation, he prepared inventory and drew samples from each packet in
30gm + 30gm = 60 gms. in quantity which were kept in separate yellow
colour envelope and after drawing samples sealed 140 nos. of envelopes in
presence of independent witnesses. During investigation, IO also visited the
place of occurrence, prepared hand sketch map with separate index of
„Rastar-matha‟ near railway bridge as well as Bishalgarh PS as search and
seizure were conducted in the PS complex. The accused persons were
subjected to interrogation at Bishalgarh PS and forwarded them to the
learned court of Sub-Divisional Judicial Magistrate (SDJM), Bishalgarh
with the prayer for 7 days police remand of the accused persons. During
investigation, he also examined available witnesses and recorded their
statements under Section 161 of CrPC. He submitted prayer before the
learned court below to certify the correctness of the inventory and for
drawing the representative samples. He also arranged to send the samples
drawn to Tripura State Forensic Science Laboratory (TSFSL), Narsingarh
for chemical examination and opinion and also collected the report of
SFSL. IO also seized the video CD cassette of the video footage taken at
the place of occurrence during search, seizure, weighing and drawing
sample and tagged in the case docket. He also tagged with extract copies of
relevant GD entries i.e. Bishalgarh PS GD Entry No.02, 04, 18 and 24,
dated 07.09.2016 into the case docket.
2.6 On completion of investigation as prima facie case was made
out against the accused persons, for the offence punishable under Section
20(b)(ii)(C) of the NDPS Act, 1985, filed charge sheet against the accused
persons vide Bishalgarh PS Charge sheet No.68/2016, dated 26.10.2016 to
face trial.
3. Trial was commenced on 12.05.2017 framing charge against
the accused persons on the accusation for the commission of offence
punishable under Section 20(b)(ii) of the NDPS Act,1985. The contents of
the charge was read over and explained to the accused persons in Bengali
in open court to which they pleaded not guilty and claimed to be tried.
4. In course of trial, the prosecution had examined as many as 12
witnesses and introduced 23 material documents which were marked as
exhibits on proof.
5. At the closure of recording evidence, the accused persons were
examined under Section 313 CrPC with reference to the incriminating
circumstances, elicited from the ocular evidence as well as documentary
materials on record, were read over and explained to the accused persons in
language they could understand to which they denied the evidence as
recorded against them and claimed to be innocent. However, the accused
persons were not inclined to adduce any evidence on their behalf.
6. The defence case as it appeared from the trend of cross-
examination of the prosecution witnesses and replies of the accused
persons given through their examination under Section 313 CrPC are that
of total denial and they claimed the prosecution case as false. It is further
revealed in their examination under Section 313, CrPC that they took a plea
that someone else was the driver of the vehicle and when the driver who
left the vehicle at „Rastar-matha‟ railway crossing and when at the request
of their owner of the vehicle went there to take the vehicle, they were
detained by the police and thereafter they along with the vehicle were taken
to the police station and they were kept in the lock-up.
7. The learned Special Judge while deciding the case had
formulated the following points for determination:
Whether on 09.07.2016 at about 00:56 hours police
detained the vehicle bearing No.NL01-K-3095 at railway
bridge crossing near „Rastarmatha‟ under Bishalgarh PS with
1130 Kgs. of dry ganja (cannabis) while the vehicle driven by
the accused Dhan Bahadur Chetri accompanied by other
accused as Khalasi proceeded towards Guwahati from
Sonamura via Bishramganj?
8. On consideration of the arguments advanced by the learned
counsels appearing for the accused persons as well as the State and on
perusal of the evidence on record, the learned Special Judge hold the
accused persons as guilty for committing the offence and returned a finding
of conviction and sentence as aforestated.
9. Feeling aggrieved and dissatisfied with the findings of guilt as
returned by the learned Special Judge, the convicts have preferred the
instant appeal.
10. Contentions of convict-appellants:
10.1 Mr. P. Mahajan, learned counsel appearing on behalf of the
convict-appellants strenuously argued that the convicts were implicated
with the instant case on the basis of suspicion only. Learned counsel for the
appellants had led much emphasis that there was gross violation of
compliance of the provisions of Sections 41 and 42 as well as Section 52 of
the NDPS Act regarding detention, search and seizure of the vehicle as well
as the contraband articles. His pointed submission was that considering the
stringency of the provisions of the Act, procedural aspects had to be
observed in stricto sensu.
10.2 Mr. Mahajan, learned counsel argued that the presence of
SDPO at the time of search and seizure of the vehicle and the contraband
goods being the same was a part of investigation ought to have been
considered as violation of provisions of Section 42 by the learned trial
Judge for which the convict-appellants could have been discharged from
the charge levelled against them. In his attempt to demolish the prosecution
evidence, learned counsel for the appellants had drawn our attention to a
part of the cross-examination of PW-2 wherein, the said witness stated that
the search and seizure was conducted in his presence on 07.09.2016 at
about 11:00 pm whereas according to PW-5, Inspector Satyendranath Bosu
Roy Chowdhury, OC, Bishalgarh PS and PW-7, Sri Prasanta Kumar Dey,
SI of the same police station stated in their examination-in-chief that search
was conducted at about 12:27 hours. On the basis of such discrepancy
regarding the variation of the time of seizure and breaking of chamber of
driver‟s cabin of the offending vehicle, created suspicious circumstances
which were sufficient to throw out the prosecution case.
10.3 Mr. Mahajan, learned counsel further argued that the seizure
list must be supported by an independent witness, but, in the seizure list
(Exbt.10/2) there was no signature of any independent witness to
substantiate the fact that the search and seizure were taken place in
presence of any independent witness. Learned counsel for the appellants
further submitted that all the samples drawn by the investigating officer
were not produced before the learned trial Judge which was sufficient to
say that there was a serious procedural lapses to conduct search and seizure
which ought to have been considered by the learned trial Judge, but failed
to consider. His further submission is that the present case is a case of
acquittal on the ground that samples as were drawn by the investigating
officer were not produced to the Magistrate immediately after seizure.
Learned counsel for the appellants further argued that to submit the video
recording cassette, Section 65 of the Indian Evidence Act was not complied
with. As such, this video cassette should not be taken into consideration to
support the prosecution case. Learned counsel in his deliberations
submitted that the investigating officer failed to produce the GD Entry No.
under which the seized articles were kept in Malkhana and his failure to
produce the Malkhana Register and other related documents made the
prosecution story doubtful as to whether any contraband goods were at all
seized from the said vehicle. Learned counsel for the appellants found
conflicting depositions of the relevant witnesses regarding forwarding of
information to superior officer. According to him, OC, Satyendranath Bosu
Roy Chowdhury never stated in his deposition that he communicated the
detention of truck to SDPO. Mr. Mahajan, learned counsel candidly
submitted that prosecution failed to establish that the contents of the first
GD Entry No. 045 dated 07.09.2016 was never communicated to the
superior officer.
10.4 Mr. Mahajan, learned counsel strenuously contended that non-
production of samples of contraband goods in court had caused serious
prejudice to the accused persons for the reason that the representative
samples could not be identified whether those were the same contraband
goods as was allegedly seized from the said vehicle. Mr. Mahajan, learned
counsel submitted that the investigating officer had failed to say the
measurement of the chamber inside the offending vehicle in which the
contraband goods were concealed which made the prosecution story
doubtful.
10.5 Lastly, Mr. Mahajan, learned counsel strenuously tried to
persuade this court that the vehicle was not driven by Dhan Bahadur
Chetry, the appellant No.1 rather, it was driven by some other person and
thus prosecution had failed to identify the actual driver of the vehicle who
was driving the same at the time of alleged commission of offence.
According to learned counsel for the appellants, the convict-appellants only
went to the police station at the instruction of the owner of the vehicle and
at that time they were arrested.
11. Contentions of the prosecution:
11.1 Refuting the submissions of learned counsel of the appellants,
Mr. S. Ghosh, learned Additional Public Prosecutor submitted that in the
instant case all the procedures under Section 41, Section 42 and Section
52(A) of the NDPS Act were complied with. From the ocular evidence as
well as the documentary and material objects, the prosecution case is well
established. He further submitted that Dhan Bahadur Chetri was the driver
of the said vehicle and it was driven by said Dhan Bahadur Chetri himself
which was proved from the authorization letter issued by the owner of the
vehicle Bikash Chandra Bhattacharjee. Said authorization letter was seized
under a proper seizure list (Exbt.1/3) in presence of witnesses.
11.2 Drawing our attention to the deposition of PW-12, IO of the
case, learned Addl. P.P. tried to justify that the said witness categorically
stated that the information was communicated in writing to the SP which
would be evident from the deposition of PW-5. The said communication
was also brought on record and being proved, it was marked as Exbt.7, as a
whole. Learned Addl. P.P. further argued that PW-11, the Chemical
Examiner who appeared before the Court in course of trial has specifically
stated that the contraband items were chemically tested and examined by
him which confirmed that the representative samples were all dry ganja
(cannabis). Lastly, he prayed for upholding the judgment and order of
conviction and sentence as passed by the learned Special Judge.
12. In reply, Mr. Mahajan, learned counsel for the appellants quite
candidly submitted that the alleged contraband goods were never proved in
court.
13. On the basis of aforesaid rival submissions advanced by the
learned counsels for the parties, we are to proceed to decide the
sustainability of the judgment and order of conviction and sentence as
returned by the learned Special Judge. Before adverting into the merit of
the case, it would be beneficial for us to reproduce the relevant Sections
that would be the determining factors to return a finding as to whether the
procedure for search and seizure were complied with inconsonance with
the aims and objects of the NDPS Act.
Sections 41, 42, 43, 49, 50, 51 & 52(A) of the NDPS Act, may
be reproduced here-in-below, for convenience.
"41. Power to issue warrant and authorisation.-- (l) A
Metropolitan Magistrate or a Magistrate of the first class or any
Magistrate of the second class specially empowered by the State
Government in this behalf, may issue a warrant for the arrest of any
person whom he has reason to believe to have committed any offence
punishable under this Act, or for the search, whether by day or by night,
of any building, conveyance or place in which he has reason to believe
any narcotic drug or psychotropic substance or controlled substance in
respect of which an offence punishable under this Act has been
committed or any document or other article which may furnish evidence
of the commission of such offence or any illegally acquired property or
any document or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central
excise, narcotics, customs, revenue intelligence or any other department
of the Central Government including the para-military forces or the
armed forces as is empowered in this behalf by general or special order
by the Central Government, or any such officer of the revenue, drugs
control, excise, police or any other department of a State Government as
is empowered in this behalf by general or special order of the State
Government if he has reason to believe from personal knowledge or
information given by any person and taken in writing that any person has
committed an offence punishable under this Act or that any narcotic drug
or psychotropic substance or controlled substance in respect of which
any offence under this Act has been committed or any document or other
article which may furnish evidence of the commission of such offence or
any illegally acquired property or any document or other article which
may furnish evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of this Act is
kept or concealed in any building, conveyance or place, may authorise
any officer subordinate to him but superior in rank to a peon, sepoy or a
constable to arrest such a person or search a building, conveyance or
place whether by day or by night or himself arrest such a person or
search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or search or the
officer who is so authorised under sub-section (2) shall have all the
powers of an officer acting under section 42."
"42. Power of entry, search, seizure and arrest without warrant or
authorisation.-- (l) Any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the departments of central excise,
narcotics, customs, revenue intellegence or any other department of the
Central Government including para-military forces or armed forces as is
empowered in this behalf by general or special order by the Central
Government, or any such officer (being an officer superior in rank to a
peon, sepoy or constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered in this
behalf by general or special order of the State Government, if he has
reason to believe from personal knowledge or information given by any
person and taken down in writing that any narcotic drug, or psychotropic
substance, or controlled substance in respect of which an offence
punishable under this Act has been committed or any document or other
article which may furnish evidence of the commission of such offence or
any illegally acquired property or any document or other article which
may furnish evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of this Act is
kept or concealed in any building, conveyance or enclosed place, may
between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b)in case of resistance, break open any door and remove any obstacle to
such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or conveyance
which he has reason to believe to be liable to confiscation under this Act
and any document or other article which he has reason to believe may
furnish evidence of the commission of any offence punishable under this
Act or furnish evidence of holding any illegally acquired property which
is liable for seizure or freezing or forfeiture under Chapter VA of this
Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom
he has reason to believe to have committed any offence punishable under
this Act:
Provided that in respect of holder of a licence for manufacture of
manufactured drugs or psychotropic substances or controlled substances
granted under this Act or any rule or order made thereunder, such power
shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape of
an offender, he may enter and search such building, conveyance or
enclosed place at any time between sunset and sunrise after recording
the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-
section (1) or records grounds for his belief under the proviso thereto, he
shall within seventy-two hours send a copy thereof to his immediate
official superior."
"43. Power of seizure and arrest in public place. -- Any officer of any of
the departments mentioned in section 42 may--
(a) seize in any public place or in transit, any narcotic drug or
psychotropic substance or controlled substance in respect of which he
has reason to believe an offence punishable under this Act has been
committed, and, along with such drug or substance, any animal or
conveyance or article liable to confiscation under this Act, any document
or other article which he has reason to believe may furnish evidence of
the commission of an offence punishable under this Act or any document
or other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have
committed an offence punishable under this Act, and if such person has
any narcotic drug or psychotropic substance or controlled substance in
his possession and such possession appears to him to be unlawful, arrest
him and any other person in his company.
Explanation.-- For the purposes of this section, the expression "public
place" includes any public conveyance, hotel, shop, or other place
intended for use by, or accessible to, the public."
"49. Power to stop and search conveyance.-- Any officer authorised
under section 42, may, if he has reason to suspect that any animal or
conveyance is, or is about to be, used for the transport of any narcotic
drug or psychotropic substance 1[or controlled substance], in respect of
which he suspects that any provision of this Act has been, or is being, or
is about to be, contravened at any time, stop such animal or conveyance,
or, in the case of an aircraft, compel it to land and--
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the conveyance;
(c) if it becomes necessary to stop the animal or the conveyance, he may
use all lawful means for stopping it, and where such means fail, the
animal or the conveyance may be fired upon."
" 50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search
any person under the provisions of section 41, section 42 or section 43,
he shall, if such person so requires, take such person without
unnecessary delay to nearest Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he
can bring him before the Gazetted Officer or the Magistrate referred to
in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person
is brought shall, if he sees no reasonable ground for search, forthwith
discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to the
nearest Gazetted Officer or Magistrate without the possibility of the
person to be searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article or document,
he may, instead of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under section100
of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief which necessitated such search and
within seventy-two hours send a copy thereof to his immediate official
superior."
"51. Provisions of the code of Criminal Procedure, 1973 to apply to
warrants, arrests, searches and seizures.--The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are
not inconsistent with the provisions of this Act, to all warrants issued and
arrests, searches and seizures made under this Act."
"52A. Disposal of seized narcotic drugs and psychotropic substances.--
(1) The Central Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of proper storage
space or any other relevant consideration, in respect of any narcotic
drugs, psychotropic substances, controlled substances or conveyances,
by notification in the Official Gazette, specify such narcotic drugs,
psychotropic substances, controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class of controlled
substances or conveyances, which shall, as soon as may be after their
seizure, be disposed of by such officer and in such manner as that
Government may, from time to time, determine after following the
procedure hereinafter specified.
(2) Where any 3[narcotic drugs, psychotropic substances, controlled
substances or conveyances] has been seized and forwarded to the officer-
in-charge of the nearest police station or to the officer empowered under
section 53, the officer referred to in sub-section (1) shall prepare an
inventory of such 3[narcotic drugs, psychotropic substances, controlled
substances or conveyances] containing such details relating to their
description, quality, quantity, mode of packing, marks, numbers or such
other identifying particulars of the 3[narcotic drugs, psychotropic
substances, controlled substances] or conveyances or the packing in
which they are packed, country of origin and other particulars as the
officer referred to in sub-section (1) may consider relevant to the identity
of the 3[narcotic drugs, psychotropic substances, controlled substances
or conveyances] in any proceedings under this Act and make an
application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of 4[such
drugs, substances or conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of such drugs or substances,
in the presence of such magistrate and certifying the correctness of any
list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate
shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872
(1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every
court trying an offence under this Act, shall treat the innventory, the
photographs of 5[narcotic drugs, psychotropic substances, controlled
substances or conveyances] and any list of samples drawn under sub-
section (2) and certified by the Magistrate, as primary evidence in
respect of such offence."
14. On conjoint reading of the above provisions, we may hold that
the legislature in its own wisdom empowered the authorized agency of the
Central Government as well as the State Government to act upon a secret
information and to detain any conveyance to be followed by search, and, if
any contraband goods or psychotropic substances as mentioned in the Act
are found or detected then seize the same. Thereafter, the Act prescribes
different modes of search and seizure to be mandatorily observed by the
officers concerned where the Act provides sufficient power under Section
42 of the NDPS Act to make search and seizure as also to arrest an accused
is founded upon and subject to satisfaction of the officer as the term
"reason to believe" has been used. Foundation of such belief may be based
on oral information as conveyed by the source/informant. On plain reading
of Section 43 of the Act, we may hold that the legislature in its own
wisdom has given some laxity which does not extract the rigours of Section
42, meaning thereby that even subjective satisfaction on the part of the
authority, as is required under Section 42(1), need not be complied with,
only because the place whereat search is to be made is a public place. In
that way, Section 43 is to be treated as an exception to Section 42. On
careful reading of Sections 42 and 43 together, we find two different
connotations based on two different situations. Section 42 contemplates
entry into and search of any buildings, conveyance or enclosed places,
while Section 43 contemplates a seizure made in any public place or in
transit [State of Haryana V. Jarnail Singh, (2004) 5 SCC 188]. In the
instant case, on the basis of secret information a team of police officers was
constituted immediately after receipt of the information that the vehicle
bearing No.NL01-K-3095 while proceeding through Sonamura side via
Bishramganj and Sonamura road enroute to Gauhati was carrying dry ganja
prepared themselves for an ambush and being noticed, it was detained, the
place being a public place and the vehicle was on transit, we may
unhesitantly arrive at a finding that such detention would not attract the
regours of Section 42(1) of the NDPS Act qua the same would be followed
by Section 43 of the NDPS Act.
15. To resolve the contention of the appellants regarding
procedural lapses, let us first peruse the evidence of PW-5 who had
received the secret information of the offending vehicle (truck) carrying
dry ganja. PW-5 deposed that on 07.09.2016 while he was performing his
duty as OC, Bishalgarh PS, he received an intimation from an unknown
person about 00:56 hours/am that the truck bearing No.NL01-K-3095 was
proceeding towards Agartala from Sonamura to go to Bihar via
Bishramganj and Bishalgarh. He entered the said intimation in the GD
Book vide GD Entry No.02 dated 7.09.2016 at about 00:56 hours/am. The
said extract was produced before the court in course of his examination-in-
chief and was marked as Exbt.6 on being identified. He stated that they left
the PS to verify the information and had led an ambush at „Rastar-matha‟
near railway bridge and at about 02:00 am, they noticed the said truck and
detained it with its driver Dhan Bahadur Chetri, the appellant No.1 with
Khalasi namely Sanjoy Gowala and another assistant. He explained in his
examination-in-chief that it was midnight and no independent witness was
found to be available and that compelled them to remove the vehicle to
Bishalgarh PS and kept the vehicle under a proper escort and the driver,
khalasi and assistant were kept under detention in the PS. He further
deposed that a GD Entry vide Bishalgarh PS GD Entry No.04 dated
07.09.2016 at 03:37 hours was made. The GD extract was produced and
being identified it was marked as Exbt.6/1. Thereafter, he informed the
matter over telephone to SP, Sepahijala. He communicated the matter also
in writing to SP, Sepahijala. In the said communication he requested the SP
to depute one senior officer to remain present at the time of search. The
said communication was marked as Exbt.7 (as a whole) being identified.
Subsequently, he made another GD vide Bishalgarh PS GD Entry No.18
dated 07.09.2016 at about 10:52 hours to that effect which was produced
before the court and being identified said GD was marked as Exbt.6/2.
15.1 PW-5 continued to depose that SP, Sepahijala deputed SDPO,
Sri Prabir Paul and he appeared at Bishalgarh PS with his staff to conduct
search and seizure in his presence and to that effect PW-5 made a GD entry
vide Bishalgarh PS GD Entry No.24, dated 07.09.2016 which was being
identified before the court marked as Exbt.6/3.
15.2 PW-5 further deposed that they collected some independent
witnesses and conducted search in presence of the SDPO at about 12:27
hours and he himself and other PS staff conducted search of the vehicle and
during search they found a specially made secret chamber on the back of
the cabin where they detected that the said chamber was filled up with dry
ganja in 39 nos. of big plastic packets containing 25 Kgs dry ganja in each
packet and 31 nos. of small plastic packets containing in 5 Kgs dry ganja in
each packet. The total quantity was measured about 1130 Kgs of dry ganja.
Thereafter, as per his instruction, SI Ashutosh Sharma had drawn samples
in each packet in presence of witnesses and the recovered contrabands were
seized under a proper seizure list. They also recovered Rs. 21,500 from the
possession of the driver. However, those currencies could not be produced
before the court.
15.3 PW-5 further deposed that seized contrabands were kept in PS
Malkhana. Thereafter, he lodged a suo motu complaint with the printed
form being filled up. The said suo motu complaint was marked as Exbt.8
and his signature was marked as Exbt.8/1. He further deposed that he had
filled up the formal FIR in his own hand writing and he endorsed the case
to SI, Ashutosh Sharma for investigation. The formal FIR being identified
was marked as Exbt.9 and his signature thereon was marked as Exbt.9/1.
The PW-5 being the OC had handed over the accused persons to the
investigating officer along with the suo motu complaint, printed formal FIR
and the original seizure list.
15.4 In his cross-examination, PW-5 stated that he did not report
the matter immediately to the superior officer on receipt of the information.
However, PW-5 volunteered that he reported the matter immediately after
detention of the vehicle to his superior officer i.e. SP (Sepahijala) in
writing. He denied the suggestion put forth by the defence that he did not
report the matter of detention of the vehicle with the contrabands to his
superior officer. In his further cross, PW-5 stated that I.O. had recorded his
statement on the very day of the registration of the case. PW-5 specifically
stated being confronted with cross-examination that at the time of search
and seizure accused persons were present and recovery was made in
presence of the accused persons, independent witnesses and SDPO. He
stated in his cross-examination that he did not mention the presence of
accused persons at the time of search and seizure neither in his suo motu
complaint nor in his statement recorded under Section 161 CrPC. However,
the witness volunteered that the signature of the accused persons were
obtained on the seizure list as a mark of proof of their presence on the spot.
PW-5 further denied the suggestion put by the defence that they did not
detain the vehicle bearing registration No. NL01-K-3095 on the night of
07.09.2016 and that they did not arrest the accused persons.
16. Next, it would be relevant to go through the evidence of PW-
9, Sri Prabir Paul, the SDPO who remained present at the time of search
and seizure. PW-9 deposed that at the relevant time he was posted as
SDPO, Bishalgarh. On 07.09.2016, at about 01:00 hours, OC, Bishalgarh
PS, Sri Satyendranath Basu Roy Chowdhury (PW-5) intimated him over
telephone that on receipt of a secret information about the movement of the
offending truck towards Agartala from Sonamura enroute to Bihar via
Bishramganj-Bishalgarh road with some contraband items, PW-5 entered
the information in GD Book vide GD Entry No.02 dated 07.09.2016 at
about 00:56 hours (Exbt.6). Accordingly, he rushed to the PS immediately
and thereafter, in a team they left the PS to verify the information and had
led an ambush at „Rastar-matha‟, Gokulnagar near railway bridge under
Bishalgarh PS at about 02:00 hours. They detained the truck with its driver,
khalasi and assistant, the accused persons herein. Since it was a dark
midnight and having not found any independent witness, they brought the
vehicle to the Bishalgarh PS complex where it was kept under a proper
escort and the driver, khalasi and the assistant were kept under detention in
the PS to find out the genuinity of the information the PW-5 had received.
The said circumstance was entered into the GD Book vide GD Entry
No.04, dated 07.09.2016 at 03:37 hours. PW-9 identified extract of the said
GD Entry (Exbt.6/1). PW-9 further deposed that PW-5 informed the matter
over telephone to SP, Sepahijala. He also informed the matter in writing to
SP, Sepahijala. The matter was also communicated to SP, Sepahijala in
writing by OC, Bishalgarh PS (PW-5). He further deposed that he was well
acquainted with the signature of OC, Bishalgarh PS (PW-5). On
identification the letter communicated to SP vide dispatch No.20410 dated
07.09.2016 was marked as Exbt.11 (as a whole). He also identified the
information he communicated to SP to conduct search and to depute one
senior officer to remain present at the time of search was marked as Exbt.7
(as a whole). Subsequently, he further deposed that in this regard PW-5
also made a GD to that effect vide Bishalgarh PS GD Entry No.18 dated
07.09.2016 at about 10:52 hours. The said extract being identified was
marked as Exbt.6/2.
16.1 PW-9 further deposed that SP, Sepahijala made a written
communication to him wherein he was directed to supervise the search and
seizure procedure at the place where the vehicle was detained and to
supervise the drawing of samples for forensic examination. The said
written endorsement of SP being identified was marked as Exbt.12 (as a
whole). PW-9 further deposed that in that meanwhile they arranged some
independent witnesses and started the search operation at about 12:27 hours
at Bishalgarh PS complex and necessary arrangement for videography was
also made. He further deposed in his examination-in-chief that during
search some independent witnesses besides the Reporter of print media and
electronic media were also present. So far he could recollect one Subrata
Saha was present at the place of search operation as an independent witness
but he could not recollect the name of other witnesses at the stage of trial.
PW-9 deposed that search was conducted in presence of the accused
persons. He found the secret chamber and reiterated the statements
regarding the recovery of ganja and the quantity. PW-9 stated that as per
instruction of OC, Bishalgarh PS, S.I. Ashutosh Sharma had drawn samples
and representative samples of 30 grams each from every packet in presence
of the witnesses. Two nos. of samples were drawn from each packet i.e. in
total 140 nos. of samples were drawn and the samples, representative
samples and the remnants of the dry ganja were packed and sealed and
those were duly signed, countersigned by the accused persons and the
witnesses including the officers who had drawn samples. PW-9 identified
the representative samples and on the day of trial he identified 70 nos.
representative samples as produced before the court and those samples
being identified were marked as Exbt.MO-2 to Exbt. MO-71. In
continuation of his deposition, he stated that recovered contraband items
were seized by SI, Ashutosh Sharma under a proper seizure list. PW-9 also
confirmed the recovery of Rs.21,500/- from the possession of the driver
Dhan Bahadur Chetri. Confirming the deposition of PW-5, PW-9 deposed
that seized contraband goods were kept in PS Malkhana and thereafter, OC,
Bishalgarh PS lodged a suo motu complaint and handed over the complaint
along with the seizure list and the accused persons to the investigating
officer, SP, Ashutosh Sharma.
16.2 During cross-examination, no material contradiction was
elicited from the statements which he made in his examination-in-chief.
17. Next, it would be convenient to discuss the evidence of Sri
Subrata Saha who deposed as PW-6. He being a Journalist appeared at the
place of search and seizure on 07.09.2016 at about 12:12/12:15 hours for
collecting reports. He deposed that on his arrival at PS, he found that a
truck bearing No. NL01-K- 3095 was detained there and kept under the
surveillance of PS staff. The driver, khalasi and assistant were also kept
detained besides the truck. PW-6 further deposed that SDPO, Bishalgarh
and other police officers also were present along with other witnesses
including other reporters from print media and electronic media. PW-6
came to learn from SDPO, Bishalgarh that the vehicle was detained on the
basis of a secret information that the vehicle was suspected to transport
some contraband like cannabis towards Agartala. Thereafter, PW-6
deposed that search was made in the PS complex in presence of huge nos.
of police personnel, reporters of print media and electronic media and other
independent witnesses and upon search of the vehicle a secret cabin was
detected specially made behind the driver cabin which the police officers
had broken and inside that cabin they found 39 nos. of big plastic packets
and 31 nos. small plastic packest containing dry ganja and in total there
was 1130 Kgs of dry ganja in 70 nos. of plastic packets. PW-6 further
deposed that the weight of the recovered contraband items were measured
in electronic weighing machine and thereafter all the 70 packets were
opened and from each packet samples of 30 gram were taken and the
samples were packed, sealed, signed and countersigned by the witnesses
including himself and the remnants were also packed, sealed, signed and
countersigned by the seizing officer and the witnesses besides himself.
Deposing further, he stated that thereafter SI, Ashutosh Sharma prepared a
seizure list and he was asked to put his signature on the seizure list
containing two pages which being identified were marked as Exbt.10 and
Exbt.10/1.
17.1 During his cross-examination, he stated that he received the
information from one Mannan Haque and thereafter he went to the PS on
the basis of his information. Being confronted, PW-6 stated that he did not
make the statement to the investigating officer that he got the information
from Mannan Haque and thereafter he went to the PS. During his cross-
examination PW-6 stated that though he could not recollect whether he
stated to IO that the secret cabin was broken with hammer and other
appliances but witness volunteered that the cabin was broken in his
presence with hammer and other appliances. He denied all other
suggestions put forth to him by the defence and no material discrepancy or
variation was elicited.
18. Next, it would be relevant to take note of the testimony of
PW-7, Prasanta Kumar Dey, who was discharging as SI of police,
Bishalgarh PS on the date of incident i.e. on 07.09.2016. PW-7 deposed
that at about 00:56 hours OC, Bishalgarh PS (PW-5) received an
information about the movement of one truck No. NL01-K-3095 which
was carrying dry ganja. On receipt of the information, the OC entered the
said intimation in GD Book vide GD Entry No.02 dated 07.09.2016 at
about 00:56 hours. His other contentions were in the tune of PW-5 and
PW-9 i.e. the OC Bishalgarh PS and the SDPO,
Bishalgarh. Importantly, PW-7 identified the representative samples which
were marked as Exbt.MO-2 to Exbt. MO-71. Further, the said witness in
his cross-examination confirmed that the signatures of the accused persons
were taken at the time of seizure on the spot. From his further cross-
examination there was no material deviation from his examination-in-chief.
19. PW-1, Abhishek Deb was posted as constable on the date of
incident. He also deposed in the same tune as those of PW-5, PW-7 and
PW-9. The defence in his cross-examination tried to establish that the said
witness had left the PS after 10 pm to which he volunteered that their
barrack was situated within the PS complex just behind the PS and though
he went to the barrack after his duty at 10 pm, they were instructed to
remain present in the barrack and not to leave the PS complex. He
confirmed his presence at the place and time of search and seizure during
his cross-examination.
20. PW-2 also corroborated the other prosecution witnesses
regarding the movement of vehicle, its detention, bringing the offending
truck to the PS followed by search, seizure and endorsement of the case to
SI Ashutosh Sharma as well as the videography in a CD cassette. He
identified the CD cassette as Exbt. MO-1.
21. The defence could not shake the fact of search and seizure in
his presence and other witnesses as deposed.
22. PW-4 is a seizure witness of the CD cassette. His signature
being identified on the said seizure list was marked as Exbt.5/1. The said
witness also identified Exbt.MO-1.
23. PW-8, Sri Prasun Biswas deposed that he was posted as
constable on the date of incident and on that day he went to the Bishalgarh
PS with a departmental video camera as per instruction of SDPO,
Bishalgarh and recorded the search operation of the vehicle bearing No.
NL01-K-3095 in their departmental video camera at PS complex,
Bishalgarh. Other parts of his evidence are corroboration of the testimony
of the other prosecution witnesses.
Nothing material contradictions were elicited by the defence in
his cross-examination. Significantly, some questions were put to him by the
defence which he replied in the line of prosecution case but the defence
tried to shake his evidence by making an effort that those statements were
found to be absent in his statement recorded under Section 161 of CrPC.
24. PW-10, Sri Bikash Chandra Bhattacharjee is one of the vital
witnesses being the owner of the truck. He deposed that on the fateful day
his vehicle bearing registration No.NL01-K-3095 (truck) was being driven
by the accused Dhan Bahadur Chetri who was his regular driver and he
appointed the Khalasi and Assistant as per the choice of Dhan Bahadur
Chetri. The said witness could not say the name of Khalasi and Assistant
appointed by the accused driver Dhan Bahadur. He further deposed that
accused Dhan Bahadur denying his instruction went towards Bishramganj
and somewhere else and on the way back to Agartala, the vehicle was
detained by police at Bishalgarh and his vehicle was taken away to the PS
complex. He identified Dhan Bahadur at the dock. PW-10 also submitted
an affidavit stating inter alia that Dhan Bahadur was authorized by him to
drive his vehicle and if he carried any goods unauthrorisedly, then, the
driver himself would be the sole responsible for it. The said affidavit being
identified as Exbt.2 and his signature on the said affidavit being identified
were marked as Exbt.2/1 series.
The testimony of PW-10 could not be shaken by the defence.
25. PW-11, Sri Suman Kumar Chakraborty is another vital
witness. He deposed that on 14.09.2016 he was posted as Deputy Director-
Cum-Assistant Chemical Examiner, Govt. of Tripura, Agartala. On that
day, Director H.K. Pratihari received 1(one) number of hard paper box,
enclosed within cover of white cloth, duly sealed with wax seals from the
SDPO (Bishalgarh) in connection with Bishalgarh PS Case
No.2016/BLG/101 under Section 20(b)(ii)(c) of NDPS Act,1985 and the
name of the drugs purporting to be contained in the sample was plant
material (cannabis). The hard paper box was subsequently marked in the
laboratory as CHEM/49/16.
25.1 PW-11 further deposed that sealed paper box containing 70
numbers of yellow coloured paper envelopes each envelope was sealed
with 2 wax seals with same impression. Each envelope affixed a piece of
white paper written case reference name and particular of possessor-(1)
Dhan Bahadur Chetri (35) with address, (2) Sanjoy Gowala (18) with
address and (3) Samuel Koloi (18) with address and also their signatures.
He also found name and particulars of witnesses (1) Subrata Saha (46) with
address, (2) Ratan Das (41) with address and their signatures inclusive of
the signature of IO. The samples were marked as packet No.1 to 26/Exhibit
„A‟ to „Z‟, packet No. 27 to 52/Exhibit „AA‟ to „AZ‟ and packet No. 53 to
70/Exhibit „AAA‟ to „AAR‟ respectively. Samples were drawn, labeled and
sealed in presence of IO and signature of Prabir Paul, SDPO, Bishalgarh
dated 07.09.2016 was taken by IO on each packet of the sample and the
sample were duly signed by the investigating officer Sri Asutosh Sharma
(SI of Police, Bishalgarh PS).
25.2 PW-11 further deposed that on that date itself, the samples
were handed over to him by his authority for analysis and report.
Accordingly the said witness verified the sample nos. „A‟ to „Z‟, „AA‟ to
„AZ‟ and „AAA‟ to „AAR‟ and those were contained greenish brown
coloured partially dried broken plant with fruiting/flowering tops, seeds etc.
and the packets of sample were weighing 30 gms each (approx).
25.3 PW-11 went on deposing that the exhibits were subsequently
marked in the laboratory as CHEM/49/16(1) to CHEM/49/16(70).
Thereafter, the said witness during his examination-in-chief had observed
thus--
"During examination, from 19.09.2016 to 22.09.2016 the exhibits
were suitably extracted and analyzed by colour test, chromatographic
method, macroscopically and microscopically.
It could be ascertained from the result of the examination that the
exhibits CHEM/49/16(1) to CHEM/49/16(70) contained ganja i.e.,
positive for the presence of cannabis.
Analysis of the sample confirms the claim of IO in respect of the
test I performed. Thereafter, I prepared the reports in my official
computer which bear my signatures.
This is the report I prepared in my Official Computer vide No.
SFSL/651/16/CHEM/49/16 dated 22.09.2016 and the report bears my
signatures. On identification, the report is marked as Exhibit 13 and the
signatures are marked as Exhibit 13/1 and 13/2 respectively.
On 22.09.2016 My Director H.K. Pratihari forwarded the report
to SDPO (Bishalgarh), Sepahijala Tripura, vide Memo No. SFSL
651/16/CHEM/49/16/7342 dated 23.09.2016 in connection with
Bishalgarh PS Case No. 2016/BLG/10 under section 20 (b)(ii)(c) of
NDPS Act, 1985 which bears his signature. I am well acquainted with the
hand writing and signature of my director Dr. H. K. Pratihari. The
forwarding of my authority filled up by me and it bears his signature. On
identification, the forwarding is marked as Exhibit 14 (as a whole).
The remnants of the samples were returned back to SDPO
(Bishalgarh), Sepahijala Tripura specially packed in the same packet
with our Official seal and my signature.
The remnants of the samples returned back to SDPO
(Bishalgarh) and produced by the prosecution but on perusal of the
remnants of the samples in yellow envelope were found to have been
wrongly marked as Exhibit MO-2 to MO-71 by PW-7 as representative
samples. Whereas these are not the representative samples, these are the
remnants returned back by me under sealed cover and each and every 70
numbers of sealed yellow envelopes bears my official seal and
signatures. The representative samples may be lying with the police. The
remnants of the samples in sealed yellow envelopes with my official seal,
on identification by the witness is marked as Exhibit MO72, MO-73,
MO-74, MO-75, MO-76, MO-77, MO-78, MO-79, MO-80, MO-81, MO-
82, MO-83, MO-84, MO-85, MO-86, MO-87, MO-88, MO89, MO-90,
MO-91, MO-92, MO-93, MO-94, MO-95, MO-96, MO-97, MO-98, MO-
99, MO-100, MO-101, MO-102, MO-103, MO-104, MO105, MO-106,
MO-107, MO-108, MO-109, MO-110, MO-111, MO-112, MO-113,
MO-114, MO-115, MO-116, MO-117, MO-118, MO-119, MO120, MO-
121, MO-122, MO-123, MO-124, MO-125, MO-126, MO-127, MO-128,
MO-129, MO-130, MO-131, MO-132, MO-133, MO-134, MO135, MO-
136, MO-137, MO-138, MO-139, MO-140, MO-141."
26. PW-12, Sri Ashutosh Sharma, SI of police, the investigating
officer who was endorsed by the OC of Bishalgarh PS to investigate the
case, deposed that on 07.09.2016, he was posted as SI of Police when PW-
5 lodged a suo motu complaint and on the basis of that complaint the
related case was registered and he was instructed to take over the
investigation. He deposed that he was well acquainted with the hand
writing of PW-5 being the OC of the Bishalgarh PS. PW-12 identified the
registration for endorsement with signature of PW-5 on his suo motu
complaint and being identified the same it was marked as Exbt.8/2. PW-12
further deposed that on 07.09.2016 as per order of SP, Sepahijala vide
No.4760 dated 07.09.2016, he prepared pre-search memorandum in
connection with Bishalgarh PS GD Entry No.04 and 24 dated 07.09.2016.
Accordingly, he prepared the pre-search memorandum in presence of
SDPO. He deposed that before he started the procedure of pre-search
memorandum, he asked the accused persons that he would search their
vehicle and whether they were interested at all to make search of their
persons but the accused persons denied on it. Being identified, the pre-
search memorandum with his signature was marked as Exbt.15 and 15/1
respectively.
26.1 He further deposed that search was conducted in presence of
witnesses as well as the accused persons, apart from senior police officials.
Deposing further, he stated that during search a secret cabin was detected
behind the cabin of the driver which was broken down with hammer,
„chaini‟ and other instruments and after opening, they detected huge
quantity of ganja in 70 nos. of plastic packets wrapped with brown
sellotape containing different quantity of dry ganja. He further deposed that
each packet were marked as packet Nos. 1 to 70 and the packets serially
contained 5.36 kg, 25.96 kg, 25.90 kg, 25.84 kg, 25.95 kg, 25.76 kg, 26.02
kg, 25.90 kg, 25.70 kg, 26.22 kg, 26.20 kg, 26.22 kg, 26.10 kg, 26.22 kg,
26.22 kg, 26.16 kg, 26.00 kg, 25.90 kg, 26.12 kg, 26.22 kg, 26.20 kg, 26.00
kg, 26.22 kg, 26.22 kg, 26.20 kg, 26.10 kg, 26.22 kg, 26.00 kg, 26.10 kg,
26.22 kg, 26.20 kg, 26.22 kg, 26.16 kg, 26.22 kg, 26.10 kg, 26.00 kg, 26.22
kg, 26.16 kg, 25.96 kg, 26.20 kg, 5.40 kg, 5.56 kg, 5.62 kg, 5.46 kg, 5.60
kg, 5.80 kg, 5.76 kg, 5.82 kg, 5.90 kg, 5.62 kg, 5.76 kg, 5.96 kg, 5.84 kg,
5.74 kg, 5.96 kg, 5.92 kg, 5.78 kg, 5.98 kg, 5.90 kg, 6.02 kg, 6.12 kg, 6.00
kg, 5.96 kg, 5.86 kg, 6.02 kg, 6.10 kg, 6.05 kg, 6.22 kg, 6.00 kg and 5.96
kg respectively. He had also drawn two samples of 30 grms from each
packet and the samples drawn from each packet were marked as Exhibit A,
A1, B, B1, C, C1, D, D1, E, E1, F, F1, G, G1, H, H1, I, I1, J, J1, K, K1, L,
L1, M, M1, N, N1, O, O1, P, P1, Q, Q1, R, R1, S, S1, T, T1, U, U1, V, V1,
W, W1, X, X1, Y, Y1, Z, Z1, AA, AA1, AB, AB1, AC, AC1, AD, AD1,
AE, AE1, AF, AF1, AG, AG1, AH, AH1, AI, AI1, AJ, AJ1, AK, AK1, AL,
AL1, AM, AM1, AN, AN1, AO, AO1, AP, AP1, AQ, AQ1, AR, AR1, AS,
AS1, AT, AT1, AU, AU1, AV, AV1, AW, AW1, AX, AX1, AY, AY1,
AZ, AZ1, AAA, AAA1, AAB, AAB1, AAC, AAC1, AAD, AAD1, AAE,
AAE1, AAF, AAF1, AAG, AAG1, AAH, AAH1, AAI, AAI1, AAJ, AAJ1,
AAK, AAK1, AAL, AAL1, AAM, AAM1, AAN, AAN1, AAO, AAO1,
AAP, AAP1, AAQ, AAQ1, AAR, AAR1). In total 140 numbers of samples
were drawn, and being so marked as above he sent those samples.
26.2 PW-12 in his examination-in-chief further deposed that the
Forensic Examiner of SFSL, Tripura used 70 nos. of samples from each
series and after examination returned back the remnants of the samples
examined which were forwarded to SDPO (Bishalgarh) and he handed over
the same to him and he being the IO forwarded the remnants of the samples
(70 nos. samples), and the remnants which were returned back by the SFSL
were made available on the date of his deposition before the court. The
said witness identified the Exbt.(remnants) of the samples which were
marked as Exbt.-72 to Exbt.141 on identification by the prosecution
witness No.11. He further deposed that the representative of the samples in
70 nos. were kept in PS custody i.e. in the PS Malkhana and subsequently,
as per order of the trial court, the representative samples were destroyed by
the Drug Disposal Committee, along with total quantity of dry ganja
remained after sampling.
26.3 PW-12 further deposed that he prepared the search list
containing two pages which being identified was marked as Exbt.16 and
the signature of the witness on the search list was marked as Exbt.16/1.
Deposing further, the IO (PW-12) stated that he also seized the truck
bearing registration No.NL01-K-3095 along with its documents, Indian
currency notes of Rs.21,500/-, one driving license of the driver, three nos.
of mobile phones (Samsung) along with their SIM cards of BSNL, Airtel
and Idea. He prepared the seizure list dated 07.09.2016 in connection with
GD Entry No.04 to 24 dated 07.09.2016 which was prepared in presence of
the witnesses and the accused persons bearing their signatures. On
identification, the seizure list dated 07.09.20216 was marked as Exbt.10/2
and the signature of the witness on the seizure list was marked as
Exbt.10/3. The said witness had identified the owner of the truck Bikash
Chandra Bhattacharjee who was present before the court on that day. PW-
12 further deposed that entire procedure of search and seizure was video-
graphed and a CD was prepared which was available before the court on
that date which being identified was marked as Exbt.MO-1.
26.4 He deposed that after seizure, the contraband items were kept
in the PS Malkhana. He further deposed that during his investigation he
recorded the statements of SI Prasanta Kumar Deb, under Section 161 of
CrPC. PW-12 deposed that in that meanwhile, a specific case was
registered and he formally received the case docket from the OC,
Bishalgarh PS, started further investigation of the case and tagged the
investigation already he had done in connection with GD Entry No.4 to 24.
26.5 During his deposition, PW-12 confirmed that he sent a
detailed report to SP, Sepahijala vide dispatch No.20365 dated 07.09.2016
in connection with the present case which bore his signature, the same
being identified was marked as Exbt.17 and the signature of the witness
was marked as Exbt.17/1. He also confirmed the GD Entries which were
marked as Exbts. 6, 6/1,6/2 and 6/3. On the next date, PW-12 examined Sri
Prabir Paul, the SDPO, Bishalgarh and OC, Bishalgarh PS, Sri S. Basu Roy
Chowdhury and recorded their statements. He prepared the hand sketch
map of the place where the vehicle was detained, Exbt.18 as a whole and
the signature thereon (Exbt.18/1). He confirmed the statements of PW-5
that on being received secret information PW-5 detained the vehicle at
„Rastar-matha‟ under Bishalgarh PS and moved the offending vehicle to
the PS for safe custody in the dark midnight since there was no street light
and it was an abandoned place and that at that time, no independent witness
was available and that there was every chance of fleeing away of the
accused persons to the jungle area. He further deposed that he prepared the
hand sketch map and index of the spot of the PS where the search and
seizure were conducted in the vehicle. PW-12 identified the hand sketch
map and index. Being identified, the hand sketch map was marked as
Exbt.20 and the signature of the witness on the hand sketch map was
marked as Exbt.20/1 and index was marked as Exbt.21 and the signature on
the index of the witness was marked as Exbt. 21/1. PW-12 further deposed
that the vehicle along with the contraband items and other seized items
were forwarded to the learned court but as there was shortage of space, he
had been asked to keep the vehicle in the PS custody and accordingly, he
kept the vehicle at SP Office Complex, Sepahijala.
26.6 PW-12 further deposed that on 14.09.2016 he conducted
search of the dwelling hut of the driver Dhan Bahadur Chetri at
Gurkhabasti under NCC PS. Deposing further, he stated that sampling of
the contraband items were made in accordance with the procedure
established by law. Those contraband items were sent to the SFSL for
chemical examination through SDPO, Bishalgarh. He collected the reports.
PW-12 further deposed that he also collected the certificate from Debasish
Debbarma under Section 65(b) of the Evidence Act. The said certificate
being identified was marked as Exbt.24 (as a whole). Thereafter, on
completion of investigation he submitted charge-sheet.
26.7 PW-12 further deposed that he made a prayer for preparation
of inventory and drawing samples from seized contraband which bore his
signature and the prayers so made being identified was marked as Exbt.23
and the signature of the witness on the said prayer marked as Exbt.23/1.
PW-12 further deposed that learned Magistrate had given certificate of
correctness under Section 52(A) on 12.09.2016 whereupon the learned
Magistrate put his signature and being identified, the certificate of
correctness with the signature of learned Magistrate was marked as
Exbt.23/2 (as a whole).
26.8 Nothing material variations were elicited from the cross-
examination. However, PW-12 in his cross-examination clarified that GD
Entry No.045 dated 07.09.2016 was a mistake committed inadvertently and
it should be read as GD Entry No.04 instead of 045 though he did not make
any explanation in the CD for the mistake.
26.9 During his cross-examination, the defence tried to make out a
case that in the second page of the affidavit produced by the owner of the
vehicle (PW-10), the name of one Pintu Sarkar appeared. So, the defence
tried to make out a case that said Pintu Sarkar was the actual driver of the
vehicle but not Dhan Bahadur Chetri who was arrested on the pretext that
he was the driver of the offending vehicle.
27. Analysis on evidence and our finding:
On scrutinizing the evidence testified by the prosecution
witnesses and the relevant GD Entry No.02, dated 07.09.2016 [Exbt.6], the
extract of which was brought on record amply substantiates the fact that
PW-5, Satyendranath Basu Roy Chowdhury, the OC, Bishalgarh PS
received a secret information at about 00:56 hours/am on 07.09.2016.
Pursuant to that information an entry being made in the GD Book, he along
with PS staff had laid an ambush on „Rastar-matha‟ near railway bridge
under Bishalgarh PS on NH-44. They noticed at about 02:00 am on
07.09.2016 the vehicle bearing No NL01-K-3095 was approaching towards
Agartala. They stopped the said vehicle at the place of ambush. It is proved
that it was a dark night having no electricity at the site, no independent
witnesses were available and for the reason that no search was possible
before sunrise, and further, according to us, on reasonable apprehension
that the place was not at all safe for keeping the vehicle stranded therein till
sunrise, they brought the vehicle to the Bishalgarh PS complex and kept it
under a proper escort and surveillance. They also detained the driver,
khalasi and assistant of the vehicle and for that matter a GD Entry
[Exbt.6/1] was made vide Bishalgarh PS GD Entry No.04, dated
07.09.2016 at 00:37 hours. From the relevant records, it is revealed that
PW-5 being OC of the PS informed the matter over telephone to SP,
Bishalgarh followed by a written information [Exbt.7] to SP expressing his
desire to depute one senior officer at the spot to conduct and supervise the
search and seizure. A GD Entry was made vide GD Entry No.18, dated
07.09.2016 at about 10:52 hours to that effect [Exbt.6/2]. The testimony of
prosecution witnesses including PW-6, Sri Subrata Saha amply proves the
presence of SDPO during search which is supported by GD Entry No.24,
dated 07.09.2016 [Exbt.6/3]. As such, the oral testimony as adduced by the
prosecution witnesses regarding the presence of SDPO being the senior
official at the time of search and seizure has been substantially
corroborated by the documentary evidence. The defence has failed to shake
the evidence of prosecution witnesses that the search operation was
conducted at about 12:27 hours in presence of SDPO when they detected
one specially made secret chamber on the back of the cabin and the same
being opened by way of breaking it with hammer and other instruments,
they found 39 nos. of big plastic packets containing 25 Kgs. of dry ganja in
each packet and 31 nos. of small plastic bags containing 5 Kgs. of dry
ganja in each packet i.e. in total 1130 Kgs. of dry ganja.
28. We find no procedural lacunae in stopping the vehicle,
bringing the same to the PS complex, followed by its detention in PS
complex and searching the vehicle after sunrise. The procedures as
revealed from the testimony of the prosecution witnesses supported by
documentary evidence substantiates the compliance of Sections 42(i)(ii)
and 43 of the NDPS Act. Section 49 of the NDPS Act empowered the
authorized person to stop any vehicle if he has reason to suspect that such
conveyance is used for transportation of any narcotic drugs or psychotropic
substance or controlled substance.
29. Now, coming to the seizure part, PW-5 has deposed that as per
his instruction SI, Ashutosh Sharma drew samples from each packet.
Accordingly, samples were drawn, and the recovered contraband were
seized under a proper seizure list. PW-5 has further deposed that the seized
contraband were kept in PS Malkhana and thereafter, he lodged the suo
motu complaint, [Exbt.8] and the formal FIR [Exbt.9] was made.
Thereafter, he endorsed the case to SI Ashutosh Sharma for investigation
and handed over the copy of the complaint as well as the other related
documents.
30. Learned counsel for the appellants pointed out that before
lodging the suo motu complaint, the investigating officer had participated
in the process of investigation when he drew the samples of the alleged
contraband articles before registration of FIR and it led the investigation
unfair. True it is, fair investigation being foundation of fair trial should be
carried on complying established procedures envisaged under the NDPS
Act as well as Code of Criminal Procedure. Learned counsel for the
appellants has relied upon the decision of Mohanlal Vs. State of Punjab,
(2018) 17 SCC, 627 wherein the Supreme Court held thus: [SCC p.630,
para 30].
"30.....It is therefore held that a fair investigation, which
is but the very foundation of fair trial, necessarily postulates that the
informant and the investigator must not be the same person. Justice
must not only be done, but must appear to be done also. Any
possibility of bias or a predetermined conclusion has to be
excluded....."
31. In the case in hand, the informant is the Officer-in-Charge, Sri
Satyendranath Bosu Roy Chowdhury (PW-5) and the investigating officer
was Sri Ashutosh Sharma (PW-12). So, they were different persons and
their roles also were different. As such, according to us, there is no
question of infraction of constitutional guarantee enjoyed by a person as
envisaged under Article 21 of the Constitution. Accordingly, the above
judgment as cited by learned counsel for the appellants cannot have any
relevance to the point.
32. What is transpired that the Officer-in-Charge (PW-5) at the
time of search and recovery of the articles from the secret chamber of the
vehicle instructed SI, Ashutosh Sharma (IO) to draw samples. Question
arises whether at the time of such instruction, the OC (PW-5) started the
process of investigation? In our opinion, the answer is negative. We have
noticed that search was conducted only on the basis of a secret information
and neither the OC of the PS nor SI Ashutosh Sharma had any personal
knowledge about the genuinity of such information. Only after search they
suspected that the searched materials were in the nature of dry ganja, the
confirmation of which could not be possible unless the samples were drawn
and sent the same for forensic examination. The scheme of the NDPS Act
postulates that the samples must be drawn as soon as possible, of course, as
per procedure encapsulated in the Act. SI Ashutosh Sharma just had
followed the instruction of his superior officer i.e. OC of the PS.
Immediately thereafter, on being suspected that the contrabands were of
dry ganja, and being satisfied that a case of commission of a cognizable
offence was made out, only then, the OC of the PS Sri Satyendranath Basu
Roy Chowdhury lodged the suo motu complaint followed by registration of
FIR and endorsed the case to SI Ashutosh Sharma (PW-12) for
investigation.
32.1 In this situation, we are unable to digest the argument of
learned counsel for the appellants that by way of participating in the search
operation and drawing of samples, SI Ashutosh Sharma became bias or he
had any mala fide intention to implicate the accused persons with the
present crime and that the investigation was unfair.
33. What is more important, immediately after the registration of
the suo motu complaint lodged by the OC, PS (PW-5), he endorsed the case
to SI Ashutosh Sharma and handed over the accused persons (appellants) to
him with the suo motu complaint, printed formal FIR and the original
seizure list. Only, thereafter, SI Ashutosh Sharma (PW-12) had started the
process of investigation by way of arresting the accused persons and
recording statements of the available witnesses, forwarding the written
information to the court with relevant papers and other subsequent steps as
a matter of investigation process. That apart, in our opinion drawing of
samples by SI Ashutosh Sharma before the registration of FIR, does not
suggest to cause any prejudice to the accused persons.
34. We should not be oblivious of the fact that only after the
recovery of those packets, the OC of the PS including other staff had
reason to believe that a cognizable offence was committed necessitating the
lodging of complaint followed by registration of FIR on the basis of which
investigation was undertaken by SI Ashutosh Sharma on being endorsed
with the case.
35. In furtherance thereof, samples were drawn in presence of a
superior officer and independent witnesses. Entire recovered contraband
was accommodated in 70 nos. of plastic packets containing different
quantity of dry ganja. The investigating officer had drawn two samples
wherein 30 gms. from each packet which were marked as Exbts. A, A1, B,
B1 and so on up to AAR, AAR1. In total 140 nos. of samples were drawn
in presence of the prosecution witnesses including independent witnesses
as well as the accused persons who put their respective signatures in the
seizure list. As such, we do not find any material to cast doubt on the role
of the investigating officer, PW-12. In our considered view, the procedures
adopted in search and seizure of contraband by the police personnel was
tantamount to substantial compliance of Section 52A of the NDPS Act.
36. Next, we find that the samples thus drawn, were sent to the
SFSL, Tripura for chemical examination.The Forensic Examiner (PW-11)
used 70 nos. of samples from each series and after examination returned
back the remnants of the samples examined to the SDPO, Bishalgarh and
the IO forwarded the remnants of 70 nos. of samples to the court and the
remnants returned back by the SFSL were also made available before the
court. The IO, PW-12 identified those remnants of the samples which were
marked as Exbt.72 to Exbt.141 by the prosecution witness No.11. The
representative samples in 70 nos. were kept in PS custody in the Malkhana
and subsequently, as per order of the learned Special Judge, the
representative samples were destroyed by the Drug Disposal Committee,
along with the total quantity of dry ganja remained after sampling.
37. It is also transpired that the investigating officer made a prayer
before the learned court of Judicial Magistrate 1 st Class, Bishalgarh on
08.09.2016 [Exbt.22] for preparation of sample drawn memo, accordingly,
he prepared sample drawn memo before the learned Magistrate on
12.09.2016 wherein he put his signature [Exbt.22/1]. The Judicial
Magistrate 1st Class, Bishalgarh also put his signature therein. On
12.09.2016 itself, the investigating officer made a prayer for certification of
preparation of inventory and drawing samples from the seized 70 nos.
packets containing dry ganja as per provision of Section 52(A)(2) of the
NDPS Act,1985 which was duly allowed by the Magistrate and certifying
the correctness of the enclosed inventory and the list of samples drawn in
his presence [Exbt.23, Exbt.23/1 & Exbt.23/2]. Before the learned trial
Court it was surfaced from the examination-in-chief of PW-11, the
Chemical Examiner that the samples produced before him for identification
were not the representative samples but the remnants of the samples which
were marked as Exbt.MO-2 to Exbt.MO-71 by the PW-11 as representative
samples. However, PW-11 identified the remnants returned back to him
under sealed cover and each and every 70 Nos. of sealed yellow envelops
bearing his official seals and signatures. He clarified that the representative
samples might be lying with the police. There is no cross-examination by
the defence questioning the non-production of representative samples
before the court. The defence did not raise any doubt in regard to the
remnants of the samples in sealed yellow envelops with the official seal
and signature of PW-11 rather, they permitted to bring those materials
objects to be admitted in evidence as Exbt.MO-72 to Exbt.MO-141 without
any objection. More so, according to us, there is no difficulty for this court
to connect or co-relate the remnants of the samples being dry ganja in view
of the report of the Chemical Examiner (PW-11) and his testimony before
the court identifying those material objects. That apart, the Chemical
Examiner (PW-11) has categorically deposed that he received one hard
paper box in connection with the related case which containing 70 nos. of
yellow coloured paper envelopes and subsequently, all the 70 nos. of
yellow coloured paper envelopes marked in the laboratory as
CHEM/49/16(1) to CHEM/49/16(70) and the exhibits were suitably
extracted and analyzed by colour test, chromatographic method,
macroscopically and microscopically. The result of the examination was
that the exhibits CHEM/49/16(1) to CHEM/49/16(70) contained ganja i.e.
positive for the presence of cannabis. From the exhibited material objects,
it can clearly be garnered that PW-11 had taken certain quantity of samples
from each of the packets and after examination he had drawn representative
samples and kept the remnants of respective samples in separate packets
with specific marks for identification, which remnants belong to which
sample. As such, we do not find any difficulty to connect the exhibited
remnants of samples with the representative samples. Upon completion of
examination, he prepared report [Exbt.13] and Director, SFSL forwarded
the report to the SDPO, Bishalgarh.
Again, the representative samples along with entire seized dry
ganja were destroyed and disposed off with proper permission of the court.
38. Learned counsel for the appellants did not complain before
this court at the time of his argument suspecting the sealing and packing of
the samples so sent to the SFSL.
39. We have taken into account the submission of the learned
counsel for the appellants that the prosecution failed to produce the relevant
Register of Malkhana before the court to substantiate that the seized articles
were kept in Malkhana. In view of the clear testimony of the prosecution
witnesses to the effect that after recovery the seized articles were kept in
Malkhana, according to us, the fact that after seizure the samples were kept
in Malkhana cannot be disbelieved. In our opinion, in the facts and
circumstances of the present case, mere non-production of the register of
Malkhana would not vitiate the case of prosecution entirely because
evidence is galore that the case property was kept in Malkhana which were
destroyed and disposed off under a specific order of the court. In the case in
hand, inventory of the case property was made, which, being verified duly
certified by the Magistrate.
40. Further submission of learned counsel for the appellants that
accused Dhan Bahadur was not the actual owner of the vehicle was of no
substance for the reason that the owner of the driver himself substantiated
the prosecution case by his oral testimony as well as documentary evidence
that there was none other than Dhan Bahadur, the appellant No.1 who was
driving the relevant vehicle.
41. The next contention of learned counsel for the appellants that
the entire seized articles were not produced before the court and it makes
the prosecution case vitiated because there was sufficient space to suspect
the prosecution case as to whether those quantity of articles were at all
seized from the said vehicle. The law is well settled in this regard.
42. The Apex Court in the case of State of Rajasthan vrs. Sahi
Ram, (2019) 10 SCC 649 after taking into consideration in its earlier
decisions including its decision dated 30.07.2019 in Vijay Pandey vrs.
State of UP, (2019) 18 SCC 215 held that none of its previous decisions
postulates that non-production of the contraband material before the court
has singularly been found to be sufficient to grant the benefit of acquittal.
In Sahi Ram (supra) the Apex Court held thus: [SCC p.658, para 18]
"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."
The above view of the Apex Court further fell for
consideration by the Apex Court in Than Kunwar V. State of Haryana,
(2020) 5 SCC 260 when the view in Sahi Ram (supra) received approval.
43. Conclusion:
43.1 In the instant case, we discussed here-in-above elaborately that
on the basis of a secret information, an ambush was laid by the police
personnel; the empowered officer stopped the vehicle in compliance of
Section 49 of the NDPS Act; brought the vehicle to the PS since it was
midnight; conducted entry search and seizure in consonance with the
provision under Sections 41, 42(1) read with Section 43 of the NDPS Act.
Samples were drawn, sealed and packed appropriately; the Forensic
Examiner found the samples intact; the remnants of representative samples
were identified by him as dry ganja, the entire seized contraband including
representative samples were destroyed with the permission of the court, and
thus, according to us, there is no material before us to hold that the
investigation was not carried out fairly.
44. In the light of the above findings, we do not think that a case
has been made for overturning the verdict of guilt returned against the
appellants by the learned Special Judge, West Tripura, Agartala in case No.
Special (NDPS) 24 of 2016. Accordingly, the appeal preferred by the
appellants stands dismissed.
Send down the LCRs.
(ARINDAM LODH) J (AKIL KURESHI) CJ
