Tripura High Court
Sri Bablu Dhali vs The State Of Tripura on 30 March, 2022
Page 1 of 25
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.A(J). No. 17 of 2020
1. Sri Bablu Dhali, son of Sri Sushil Dhali of Arsingri Tangra Coloney,
P.S. Bangoan, District: 24 Paragana, State: West Bengal.
.....Convict-appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
Crl.A(J). No. 43 of 2020
1. Md. Sadik Ansari @ Md. Sadik, son of late Kush Mahamad,
resident of Village Kumkumpur, P.O. Kauriya, P.S. Basantpur,
District: Swan, State: Bihar.
.....Convict-appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
For Appellant(s) : Mr. S. Sarkar, Sr. Advocate.
Mr. R. Saha, Advocate.
Ms. N. Debbarma, Advocate.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 23.03.2022
Date of delivery of
judgment and order : 30.03.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. S. Sarkar, learned senior counsel assisted by Ms. N.
Debbarma, learned counsel and Mr. R. Saha, learned counsel appearing for the
appellants. Also heard Mr. S. Debnath, learned Addl. Public Prosecutor,
appearing for the respondent-State.
[2] Challenge here is the judgment and order of conviction and
sentence dated 17.02.2020, passed by the learned Special Judge,
Dharmanagar, North Tripura, in Case No. Special (NDPS) 06 of 2019
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
referred to as NDPS Act).
[3] The fact of the case, in a nutshell, is that one Assistant Sub-
Inspector of Police, Sohorab Ali Khadim of Panisagar P.S lodged a
complaint with the Officer-in-charge of Panisagar PS stating inter alia
that on 10-08-2017 afternoon Sub-Inspector, Raju Baidya of Panisagar
P.S received a telephonic information that a vehicle bearing registration
No. NL-02L-3741 was coming towards Panisagar from Agartala with
some contraband i.e. Cannabis (Ganja).
[4] Accordingly, the fact was entered in the GD book (GD Entry
No. 21 & 22), Exhibit-51 & 52 (as a whole) and as per direction of
Officer-in-charge, Panisagar, the informant, Sub-Inspector, Arindam Roy
of Panisagar PS along with staffs vide GD entry No. 23 (Exhibit53, as a
whole) left for Naka Point, in-front of Panisagar Police Station to take
necessary action and to verify the information. At about 1535 hours, they
found that the vehicle bearing registration No. NL-02L-3741 was coming
towards Panisagar from the side of Kumarghat and they stopped the
vehicle. In the mean time Rajib Sutradhar, SDPO, Panisagar also reached
to the spot and interrogated the driver of the vehicle to which he denied
to carry any contraband items. Then the driver allowed them to search the
vehicle. As per order of the SDPO, Panisagar, the other police staffs
searched the vehicle and during search a secret cabin was discovered
behind the seat of the driver and inside the cabin total 20 bundles of
suspected Ganja weighing about 311 kilograms were found wrapped in
brown colour plastic tape. Accordingly, Sub-Inspector Arindam Roy
seized the contraband with the vehicle and arrested the driver namely
Md. Sadik and the helper Bablu Dhali.
[5] After that suo moto case was registered before the Officer-
in-charge, Panisagar P.S. vide Panisagar P.S. case No.2017PNS 026
under Sections-20(b)(ii)(C) of Narcotic Drugs and Psychotropic
Substances Act, 1985 and thereafter the investigation was started. After
completion of investigation, the investigating officer submitted charge-
sheet before the learned Court against the accused person.
[6] During investigation, Sub-Inspector, Sri Arindam Roy
visited the place of occurrence, prepared hand sketch map (Exhibit-5, as
a whole) and index (Exhibit-6, as a whole) and recorded the statement of
available witnesses. He communicated the detailed report to SPCS on
11.08.2017 (Exhibit7, as a whole) and he produced all the seized
contraband and other seized materials and documents of the vehicle
before this court and thereafter as per direction of this court he drawn
sample before the Ld. Judicial Magistrate, First Class, Dharmanagar and
also prepared the inventory of the seized contraband and the procedure of
inventory was captured in photographs and sent one of the samples to the
TSFSL, Narsinghgar, Agartala, West Tripura for analysis and report and
he also made a prayer before this court for pre-trial disposal of the seized
contraband. Thereafter, on his transfer he handed over the case docket to
the Officer-in-charge, Panisagar PS on 26112017.
[7] Subsequently, Sri Bikash Das, Sub-Inspector of Police,
(PW-10) took up the investigation on 15.12.2017 and during his part of
investigation he made a prayer to District Transport Officer, Mukochung,
Nagaland to supply the information relating to the seized vehicle bearing
registration No. NL-02L-3741 and he also made a prayer to the Sr. Motor
Vehicles Inspector, Agartala for collection of information relating to the
seized vehicle and thereafter on 29.12.2017 as per order of this court the
remnants of the contraband were destroyed by Drug Disposal Committee
in his presence and on 08.01.2018 he collected screen report relating to
the seized vehicle and on 09.01.2018, he made a prayer to the Regional
Transport Authority, Mukochung, Nagaland for classification of Chassis
& Engine number of the seized vehicle and subsequently, on his transfer
he handed over the case docket to the Officer-in-charge, Panisgar PS on
17.01.2018.
[8] Thereafter, Sri Ramkrishna Das, Sub-Inspector of Police,
(PW-11) took up the investigation on 22.01.2018 and he perused the
investigation report and the screen report collected by the previous
Investigating Officer as the registration number did not tally with the
Engine and Chassis number of the vehicle, he made a prayer to the DTO,
Mukochung, Nagaland to ascertain the actual registration number of the
vehicle on the basis of the Engine and Chassis number of the seized
vehicle. He verified the Engine and Chassis number of the seized vehicle
and he also came to know that several registration number plates were
seized from the vehicle. Thereafter on his transfer he handed over the
case docket to the Officer-in-charge, Panisagar PS on 22.11.2018.
[9] Subsequently, on 15.12.2018 Sri Ranjit Debbarma, Sub-
Inspector of Police, (PW-12) took up the investigation and he perused the
investigation report and verified the same and he also re-examined the
witnesses and verified their statements. He also perused the forensic
analysis report of the seized contraband and being prima facie satisfied
he submitted charge sheet against the accused persons namely Md. Sadik
and Bablu Dhali for the commission of offences punishable under section
20(b)(ii)(C) of NDPS Act. Subsequently, upon receipt of the destruction
of remnants of the contraband, he submitted supplementary charge-sheet
on 10.07.2019 against the accused persons for the said offences.
[10] Thereafter, on receipt of the aforesaid charge-sheet and on
perusal of the same, the learned Court below took cognizance of the
offence punishable under section 20(b)(ii)(C) of the NDPS Act, 1985 and
copy of the incriminating prosecution papers was supplied to the accused
persons in compliance to the provision of section 207 of Cr.P.C.
[11] On receipt of the charge-sheet, the learned Special Judge,
North Tripura, Dharmanagar, perused the same and being satisfied took
cognizance of the offence and after completion of all legal formalities,
framed charge against the convict-appellants under Sections-20(b)(ii)(C)
of the NDPS Act to which they pleaded not guilty.
[12] Subsequently, upon hearing both sides on the point of
framing of charge being prima facie satisfied, charge under section
20(b)(ii)(C) of the NDPS Act, 1985 read with section 34 of IPC in one
head was framed against the accused persons and the contents of the
charge was read over and explained to the accused persons in Bengali to
which they pleaded not guilty and claimed to be tried.
[13] In course of trial, the prosecution had examined as many as
12 witnesses and introduced material documents which were marked as
exhibits on proof. At the closure of recording evidence, the accused
persons were examined under Section 313 Cr.P.C 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.
[14] 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 Cr.P.C are
that of total denial and they claimed the prosecution case as false. But
accused khalasi to the questions has answered which are extracted as
under and it shows that he has knowledge of the contrabands.
[15] The learned Special Judge while deciding the case had
formulated the below mentioned point for determination:
"Whether on 10.08.2017 at 1535 hours at Naka Point of Panisagar PS
both the accused persons namely Md. Sadik and Bablu Dhali in
furtherance of their common intention carried by a vehicle bearing
registration No. NL-02L-3741 (Truck) 311 kg of "dry Ganja" which is a
narcotic drug without any valid license."
[16] 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.
[17] Feeling aggrieved and dissatisfied with the findings of guilt
as returned by the learned Special Judge, the convicts have preferred the
present appeal.
[18] Mr. S. Sarkar, learned senior 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
senior counsel for the appellants had led much emphasis that there was
gross violation of compliance of the provisions 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.
[19] Mr. Sarkar, learned senior 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.
[20] 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-9 wherein, the said witness stated that the search and
seizure was conducted in his presence on 10.08.2017. Mr. Sarkar, learned
senior counsel has stated that there are material discrepancies between
the statements of the witnesses and it is a cardinal rule of criminal
Jurisprudence that burden of proof lies on the prosecution to prove its
story beyond reasonable doubt. But, in the present case, the learned trial
Court most illegally shifted the burden of proof on the defense and hence
the order of conviction and sentence is liable to be set aside/quashed.
On the basis of such discrepancy regarding the seizure and breaking of
chamber of driver's secret cabin of the offending vehicle, created
suspicious circumstances which were sufficient to throw out the
prosecution case.
[21] Mr. Sarkar, learned senior counsel further argued that the
seizure list must be supported by an independent witness, but, in the
seizure list (Exbt.2 to 4/2) 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 found
conflicting depositions of the relevant witnesses regarding forwarding of
information to superior officer.
[22] Mr. Sarkar, learned senior 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. He
has further submitted that neither the PWs. No.1, 2 and 3 in their
depositions did not disclose the registration number of the alleged
offending vehicle from where the alleged contraband was recovered nor
they have identified the present appellant before the learned Court below
during the trial but, the learned trial Court did not consider this aspect
and as such, the impugned judgment and order of conviction and
sentence is liable to be set aside.
[23] It has further been contended that there are material
discrepancies in ejahar, statements recorded under Section-161 of Cr. PC.
and depositions of PWs, yet this fact was not at all considered by the
learned trial Court. The material discrepancies in the depositions of PWs.
No.4, 5, 6 and 8 regarding received of the secret information on the
alleged contraband, yet this fact also not at all considered by the Court
below.
[24] Further, from the perusal of the documents and depositions
of the PWs, it is crystal clear that the alleged contraband was not seized
from the possession of the present appellant, namely, Babul Dhali and he
is just a mere helper of the offending vehicle and the presence of the
alleged contraband in the said offending vehicle was beyond the
knowledge of Babul Dhali. PWs. 1, 2 and 3 in their depositions did not
disclose the registration number of the alleged offending vehicle from
where the alleged contraband was recovered nor they have identified the
present accused appellant before the learned trial Court.
[25] Mr. R. Saha, learned counsel appearing for appellants has
submitted that it is evidence from the deposition of PW-6 that the search
and seizure of the alleged contraband was conducted on the basis of the
GD entry No.21 dated 10.08.2017 but, from the perusal of the documents
it is crystal clear that no search and seizure was made on the basis of the
said alleged GD entry number but this vital fact was not considered by
the learned trial Court.
[26] Mr. Sarkar, learned senior counsel has vehemently argued
on the point that it is very much clear that the mandate provision of
NDPS Act were not at all complied in the instant case by the prosecution.
The learned Court below failed to appreciate that in depositions of
PWs.5, 6 and 8, they stated that Sub-Inspector Parikkhit Debbarma
reduced into writing the information and entered the same into the GD
entry book but he also never informed the same to his superior officer by
writhing nor he was examined by the prosecution to establish the said
fact before the Court which create a gross doubt on the version of the
prosecution case.
[27] He has further contended that the trial Court ought to have
appreciated and considered the judgment relied upon from the side of the
convict appellant, which was passed by the Hon'ble Apex Court, but the
learned trial Court below did not take the said judgment into
consideration. According to him, the impugned judgment and order of
conviction is perfunctory, perverse, untenable and bad in the eye of law
and is liable to be set aside.
[28] Refuting the submissions of learned senior counsel of the
appellants, Mr. S. Debnath, learned Additional Public Prosecutor
submitted that in the instant case all the legal procedures 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. Drawing our attention to the deposition of investigating
officer of the case, learned Addl. P.P. tried to justify that the said witness
categorically stated that the information was communicated to the SP
which would be evident from the depositions of witnesses. Learned Addl.
P.P. further argued that 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.
[29] 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."
[30] 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.
[31] 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
Section-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].
[32] 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.NL-02L-3741 while coming
towards Panisagar from the side of Kumarghat 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 un-
hesitantly 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.
[33] To resolve the contention of the appellants regarding
procedural lapses, let us first peruse the evidence of PW-4 (Sub-
Inspector, Md. Soharab Ali Khadim), ASI of police, PW-5 (Sub-
Inspector, Raju Baidya), PW-6 (Sub-Inspector, Arindam Roy) and PW-8
(Sub-Inspector, Rajib Debnath) it reveals that on 10.08.2017 PW-8
(SubInspector, Rajib Debnath) received the secret information that a
vehicle bearing No. NL-02L-3741 (Truck) coming towards Dharmanagar
from Agartala side with some contraband. It also reveals from the
evidence of PW-4 (Sub-Inspector, Md. Soharab Ali Khadim), PW-5 (
Sub-Inspector, Raju Baidya), PW-6 (Sub-Inspector, Arindam Roy) and
PW-8 (Sub-Inspector, Rajib Debnath) that the information was entered
into GD vide No. 21 by the Duty Officer (Sri Parikshit Debbarma)
immediately after receipt of the information.
[34] It also further reveals from the evidence of PW-4 (Sub-
Inspector, Md. Soharab Ali Khadim), PW-6 (Sub-Inspector, Arindam
Roy), PW-8 (Sub-Inspector, Rajib Debnath) and PW-9 (Sub-Inspector,
Rajib Sutradhar) that SDPO, Panisagar (PW-9, Sub-Inspector, Rajib
Sutradhar) was informed by PW-8 about the secret information and GD
entry No. 22 was made in that regard. It also further reveals from the
evidence of PW-4 (Sub-Inspector, Md. Soharab Ali Khadim), PW-6
(Sub-Inspector, Arindam Roy) and PW-8 (Sub-Inspector, Rajib Debnath)
that PW-8 left the P.S along with the staff to work out the secret
information vide GD entry No. 23.
[35] It further reveals from the evidence of PW-4 (Sub-Inspector,
Md. Soharab Ali Khadim), PW-6 (Sub-Inspector, Arindam Roy) and
PW- 8 (Sub-Inspector, Rajib Debnath) that on 10.08.2017 at about 03.00
pm they accompanying with police personnel could detain the vehicle
and noticed that the vehicle was driven by the accused namely Md. Sadik
and accused Bablu Dhali was the "khalashi" of the vehicle at the material
time. It reveals from the evidence of PW-1 (Samiran Das) and PW-2
(Niranjan Nath) and PW-3 (Manna Datta) and PW-4 (Md. Soharab Ali
Khadim) that on 10.08.2017 at about 03.00 pm police detained a truck
with the accused persons i.e. driver and "khalashi" namely Md. Sadik and
accused Bablu Dhali at Panisagar Naka point.
[36] It further reveals from the evidence of PW-4 (Md. Soharab
Ali Khadim), PW-6 (Sub-Inspector, Arindam Roy) and PW-8 (Sub-
Inspector, Rajib Debnath) that they enquired Md. Sadik and the
"khalashi" namely Babul Dhali whether both of them were carrying any
psychotropic substances in their vehicle or not but neither the driver nor
the "khalashi" of the vehicle confessed with regard to the presence of the
contraband in the said vehicle. It also revealed from the evidence of PW-
9 (Sub-Inspector, Rajib Sutradhar), SDPO, Panisagar, who is a Gazetted
Officer, reached on the spot along with his staff and while enquired the
driver and the "khalashi", both of them denied to have any contraband in
their vehicle.
[37] It is evident from the evidence of PW-4 (Sub-Inspector, Md.
Soharab Ali Khadim), PW-6 ( Arindam Roy),PW 8 (Sub-Inspector, Rajib
Debnath) and PW-9 (Sub-Inspector, Rajib Sutradhar) that thereafter PW-
9 (Sub-Inspector, Rajib Sutradhar), SDPO, Panisagar, who is a Gazetted
Officer, also reached on the spot along with his staff and while enquired
the driver and the "khalashi", both of them denied to have any contraband
in their vehicle. It also reveals that the accused persons have been
informed that there was specific information that huge quantity of "dry
Ganja" were accumulated in the vehicle and the vehicle be searched in
their presence besides other witnesses.
[38] When the search is conducted by a team of police officers
comprising of an officer who is a Gazetted Officer compliance of
Section-42 is not necessary (Union of India v. Satrohan, 2008 (8) SCC
313). In the given case PW-9 (Sub-Inspector, Rajib Sutradhar), SDPO,
Panisagar, who is a Gazetted Officer, conducted the search of the vehicle
with his staff and detected the secret cabin behind the seat of the driver
which was bolted with a cover from outside and filled with huge bundles
of "dry Ganja". On careful scrutiny of the evidence, as discussed above,
it is very much clear that there is no doubt with regard to the compliance
of Section-42 by the Investigating Agency.
[39] On scrutiny of the evidence of PW-1 (Samiran Das) and
PW-2 (Niranjan Nath) and PW-3 (Manna Datta) it reveals that upon
search of the vehicle, police recovered 20 bundles of "dry Ganja" from
the cabin of the truck and PW-6 (Sub-Inspector, Arindam Roy) drew
samples on the spot and seized those "dry Ganja", the vehicle with its
documents, personal mobile phones of the accused persons and their
driving license under a proper seizure list. It is evident from their
evidence that PW-6 (Sub-Inspector, Arindam Roy) drawn two samples of
little quantity of "dry Ganja" (30 gram each) from each of the bundles on
the spot and thereafter the remnants were measured and seized and after
measurement of those bundles 311 kilogram of "dry Ganja" were found
to have been recovered from the said vehicle.
[40] From the evidence of PW-4 (Md. Soharab Ali Khadim),
PW-6 (Sri Arindam Roy) and PW-8 (Sri Rajib Debnath) it transpires that
PW-4 (Md. Soharab Ali Khadim) lodged suo motu complaint with the
Officer-in-charge of Panisagar Police Station against both the accused
persons for the commission of offences punishable under section
20(b)(ii)(C) of the NDPS Act,1985 and the investigation of this case was
endorsed to PW-6 (Sub-Inspector, Arindam Roy). From the evidence of
PW-6 (Sub-Inspector, Arindam Roy) it is found that he communicated
detailed report (Exhibit-7, as a whole) to Superintendent of Police (C/S)
pm 11.08.2017.
[41] Thereafter, he produced all the seized contraband,
documents of the vehicle and the driver, the vehicle and other seized
materials before this court and thereafter he prepared inventory of the
seized contraband and other materials along with the vehicle and also
drawn samples from the seized contraband before the Ld. Judicial
Magistrate, First Class, Dharmanagar, North Tripura and the procedure of
sampling before the Ld. Magistrate and preparation of inventory of the
seized contraband, conveyance etc. were captured in still photographs
(Exhibits-8, 8/1, 9, 9/1, 10, 10/1, 11, 11/1, 12, 12/1, 13, 13/1, 14, 14/1,
15, 15/1, 16, 16/1, 17, 17/1, 18, 18/1, 19, 19/1, 20, 20/1, 21, 21/1).
[42] From the evidence of PW-7 (Sri Suman Kumar
Chakraborty) it transpires that he examined the samples in Chemistry
Division from 20.08.2017 to 25.08.2017 and the result of the chemical
examination is positive for presence of "Ganja" and the psychoactive
ingredients present in cannabis.
[43] It is evident from the evidence of PW-10 (Sri Bikash Das),
PW-11 (Sri Ramkrishna Das) and PW-12 (Sri Ranjit Debbarma) that they
took up the investigation as per the endorsement of the investigation by
the Officer-in-charge of Panisagar police station and PW-12 (Sri Ranjit
Debbarma) finally submitted charge sheet against both the accused
persons namely Md. Sadik and Bablu Dhali for the commission of
offences punishable under section 20(b)(ii)(C) of the NDPS Act.
[44] It has been argued by the learned senior counsel appearing
for the appellants that the contraband was seized from a truck whereas
according to the FIR the contraband was seized from a container truck.
He also argued that the accused persons were not present on the spot and
they had no knowledge about the presence of "dry Ganja" in the vehicle.
But from the evidence of the prosecution witnesses it is very much clear
that both the accused persons were detained with the vehicle bearing no.
NL-02L-3741 (Heavy goods vehicle) and the driving license of the
accused persons along with other documents i.e. original certificate of
insurance of the vehicle, original national permit for public carrier part-B,
original certificate of National Permit (Goods) Form-47, original
pollution under control certificate, original certificate of fitness, mobile
phones of the accused persons were also recovered from the vehicle and
the physical possession of the accused and thereafter those were seized in
presence of the witnesses as per seizure lists i.e. Exhibit4/ 1 and 2/1.
Thus, it is immaterial whether the vehicle is a container truck or a simple
truck since the seizure list i.e. Exhibit4/ 1 and 2/1 has been proved by
PW-3 and PW-6.
[45] Since the personal mobile phones were recovered from the
possession of the accused and their driving license along with other
documents were also recovered from the seized vehicle bearing No. NL-
02L-3741, there is no doubt with regard to the knowledge of the accused
persons relating to the accumulation of "dry Ganja" in the vehicle in a
secret cabin which is customised. Since the secrete cabin was made in the
drivers cabin, it cannot be said that the accused persons had no
knowledge about the secrete cabin. Driver and "khalashi" were the in-
charge of the vehicle specially the Drivers Cabin. Moreover, huge
quantity of 311kgs of Ganja cannot be loaded into the vehicle without the
knowledge of the accused driver and the khalasi. They were in conscious
possession of dry ganja of 311kgs since no one has access interest to hide
the contraband in the vehicle without their knowledge and intent.
Moreover, in Section-313 of Cr. P.C. examination when the learned trial
Court has questioned him about the said possession and transportation,
the accused Khalasi has categorically stated that "I am innocent. Laxman
Das resident of Agartala is the owner of the vehicle. It is he who
implicated me in false case beyond my knowledge and escaped. I am the
sole earning member of the family. My family in a total mess."
[46] This Court considered the rival submissions and have gone
through the case records and also scrutinized the evidence of the
witnesses very carefully. Moreover, Section-35 of the NDPS Act, 1985
make the provision of presumption of mental state which reads as
follows:
"35. Presumption of culpable mental state.(1) In any prosecution for an
offence under this Act which requires a culpable mental state of the
accused, the Court shall presume the existence of such mental state but it
shall be a defence for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in that
prosecution.
Explanation. In this section 'culpable mental state' includes intention,
motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when
the court believes it to exist beyond a reasonable doubt and not merely
when its existence is established by a preponderance of probability."
[47] A criminal trial is nothing but a quest for truth. The nature of
inquiry and evidence required will depend on the facts of each case. The
presumption of innocence will have to be balanced with the rights of the
victim, and above all the societal interest for preservation of the rule of
law. Neither the accused nor the victim can be permitted to subvert a
criminal trial by stating falsehood and resort to contrivances, so as to
make it the theatre of the absurd.
[48] In the given case the evidence of the witnesses were
carefully scrutinized and it is found that there is no scope to disbelieve
the evidence of the prosecution witnesses. In the light of the aforesaid
discussion this court arrived in a conclusion that the accused persons
namely Md. Sadik and Bablu Dhali possessed and carried 311 kg of "dry
Ganja" in contravention of provision of the Act and thus committed an
offence punishable under section 20(b)(ii)(C) of the NDPS Act, 1985. On
the basis of the facts and circumstances as discussed above and on the
basis of evidence of the prosecution witnesses, this Court is of the view
that the prosecution case is proved beyond all reasonable shadow of
doubt against the two accused persons.
[49] We find no procedural lacunae in stopping the vehicle. 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. We should not
be oblivious of the fact that only after the recovery of those packets, the
investigating authority 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
the investigating authority on being endorsed with the case. As such, we
do not find any material to cast doubt on the role of the investigating
officer. In our considered view, the procedures adopted in search and
seizure of contraband by the police personnel was tantamount to
substantial compliance of the provision of NDPS Act.
[50] With regard to the discrepancy as pointed out by the learned
senior counsel appearing for the appellants regarding the registration of
the case against the crime vehicle No. NL-02L-3741 and the vehicle
which was released being numbered as NL-02L-5416 by the learned
court below vide order dated 07.05.2019. Counsel for the appellants also
contended that instead of crime vehicle other vehicle was released and
one Mr. Laxman Das has taken the custody of the vehicle. This Court in
view of the above submission made by the learned senior counsel, this
Court is of the view that on this ground to release the convict-appelalnts
is not a crucial ground. Any error committed in the process of getting the
vehicle released, these accused-persons cannot be acquitted. With regard
to the release of the vehicle by the Court below, this Court looking into
the matter towards administration side and nothing to do with regard to
the passing of judicial order.
[51] It is not the case of the officials that each one of them
received the secret information. It is on receipt of the secret information
they were into action
[52] In the instant case, we discussed here-in-above elaborately
that on the basis of a secret information, the empowered officer stopped
the vehicle in compliance of Section-49 of the NDPS Act; conducted
entry search and seizure in consonance with the provisions of NDPS Act.
Samples were drawn, the samples were identified as dry ganja, thus,
according to us and there is no material before us to hold that the
investigation was not carried out fairly.
[53] It is settled proposition of law that the court is not supposed
to give undue importance to omissions, contradictions and discrepancies
which do not go to the heart of the matter, and shake the basic version of
the prosecution witness. Thus the court must read the evidence of a
witness as a whole, and consider the case in light of the entirety of the
circumstances, ignoring the minor discrepancies with respect to trivial
matters, which do not affect the core of the case of the prosecution. The
said discrepancies as mentioned above should not be taken into
consideration, as they cannot form grounds for rejecting the evidence on
record as a whole.
[54] In our ultimate analysis and having regard to the evidences
on record, it is crystal clear that there is no doubt that the question of
sentence is a matter of discretion and such discretion has to be exercised
along with accepted judicial lines. To impose adequate punishment
according to law is not only the duty of the Court, but it is social
obligation clearly enjoined upon it keeping in mind not only the crime
but also the criminal. In the case in hand, the convicts proved to have
committed the offence as indicated above and as such their plea of
innocence cannot have any significance.
[55] 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, Dharmanagar, North Tripura in
case No. Special (NDPS) 06 of 2019. Accordingly, the appeal preferred
by the appellants stands dismissed. As a sequel, miscellaneous
applications pending, if any, shall stand closed.
Send down the LCRs forthwith.
JUDGE JUDGE
A.Ghosh
