KANHAILAL CHOWHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This criminal appeal is directed against the orders of conviction and sentence passed by the learned Sessions Judge, Howrah in Sessions Trial No. XXXVII(7)/91. The learned Sessions Judge by his impugned orders convicted the appellant/accused under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to rigorous imprisonment for 12 years and also to a fine of Rs. 1 lakh, in default, to R.I. for two years more. The prosecution case in short is that on receipt of secret information about clandestine deal in heroin, a narcotic drug, a police party headed by S. I. Anup Kr. Ghosh of Narcotic Ceill, C.I.D., West Bengal, Bhabani Bhawan went to the house of the appellant accused at 23, Netai Charan Dutta Lane under P. S. Howrah in the afternoon of 19/12/1989 and there recovered and seized 20 small paper packets containing suspected heroin from a Complan Couta (container) produced by the appellant himself from his room. The learned trial Judge after considering the evidence held the appellant guilty of the charge framed against him under Section 21 of the N.D.P.S. Act and convicted him accordingly and also sentenced him as mentioned above. Being aggrieved by the conviction and sentence the appellant has preferred the present appeal.

(2.) The prosecution case is projected in his evidence by P.W. 9 S. I. Anup Kr. Ghosh who made the search, seizure and arrest of the accused and also investigated the case. He is also the de facto complainant of the case. He says that on 19/12/1989 he attended his office at about 11 a.m. and informed the officers and constables available in the office, about the probability of holding a raid that day. He also informed the Inspector, Sri Chandra Sekher Mukherjee, who was his superior officer about the probability of holding a raid on that date depending upon the arrival of source informer. He next says that at about 1 p.m. on that date the source informer came to him in his office and he had talks with him and thereafter on his proposal to the Inspector Chandra Sekher Mukherjee, the latter approved holding of raid on that date. It is to be stated that the Inspector Shri Chandra Sekher Mukherjee is a Gazetted Officer. According to the evidence of S. I. Sri Anup Kr. Ghosh he along with A.S.I. Binoy Ghatak (P.W. 3), A.S.I. Sankar Ganguly, Watcher Constable Debobrata Dutta (P.W. 5), Watcher Constable Ardhendu Bhattacharya (P.W. 8) and others started from office in a police vehicle for Howrah along with the source informer and after reaching the locality the vehicle was parked and the source informer proceeded and identified the premises No. 23, Netai Charan Dutta Lane to him. It is the evidence of Shri Anup Kr. Ghosh that before leaving the office he had source information that one Kanaia of 23, Netai Charan Dutta Lane, Howrah was dealing in heroin and he would be available at the said premises in the afternoon. His further evidence is that after making placement of the police men on different points around the said premises while he was about to enter the said premises he found two persons coming out therefrom and he requested them after disclosing his identity, to witness the search which he was going to conduct there. He says that after entering the premises he shouted for Kanaia and one person with left arm bandaged came out in response to his call and he disclosed his identity and on his enquiry the said person disclosed his name as Kanaia alias Kanailal Chowhan alias Mahabir who is the accused appellant. His further evidence is that at first the accused denied having any quantity of heroin in his possession, to query, but when he disclosed to him (the accused) that in view of their information about his dealing in heroin, they would search his room in the presence of Gazetted Officer, the accused produced one Complan Couta from his room and from that Complain Couta he produced one Cellophane Paper packet containing 20 small paper packets containing suspected heroin. He further says that the accused however, despite their offer, refused to be searched in presence of any Gazetted Officer. He also says how he made the seizure and prepared sample packet and arrested the accused and produced him at the Howrah P.S. and lodged F.I.R. at the P.S. and during the investigation sent the sample packet and seized purias to the Director of drugs Laboratory. In his cross-examination he says that on 18/12/1989 he got information that some source informer would come to him on 19/12/1989 and wound inform about availability of heroin with some person. It is suggested to him in cross-examination that he arrested the accused on the night between 18/12/1989 and 19/12/1989 which suggestion is however denied by him. P.W. 4 is an A.S.I. of Police who at the relevant time was attached to the Howrah P.S. and who drew up the formal F.I.R. being Ext. 7, Debobrata Dutta is the watcher constable who was present at the time of search. He also says that the accused was offered to be searched in presence of a Gazetted Officer but out of fear the accused produced the Complan Couta. P.W. 7 Chandra Sekher Mukherjee was the officer-in-charge, Narcotic Cell, C.I.D., West Bengal, Bhabani Bhawan at the relevant time. He was however not present at the time of seizure. He says that on 19/12/1989 at 10.30 a.m. S. I. Anup Kr. Ghosh came to him and reported that he had received a source information regarding availability of heroin in Howrah town and accordingly he made a team of police party including S. I. Anup Kr. Ghosh, A.S.I. Binoy Ghatak and others and direct him to hold the raid as per source information at about 1 p.m. on that date. He further says that Anup Kr. Ghosh to the effect that in course of raid he could apprehend one person along with some heroin and he had get a case under the Narcotic Act registered at the Howrah P.S. and also disclosed the name of the accused as Kanailal as Kanailal. P.W. 6 Dr. N. N. Chakraborty got the contents of the sealed packet chemically examined under his direct supervision and prepared the report of the analysis of the samples. The samples were found to contain heroin.

(3.) P.W. 1 Dilip Ghosh and P.W. 2 Susen Sarkar are both residents of 23, Netai Charan Dutta Lane and are seizure list witnesses but both of them were declared hostile by the prosecution. P.W. 1 Dilip Ghosh says in his evidence that one day police from Bhabani Bhawan, Alipore held a raid at premises No. 23, Netai Charan dutta Lane and took him and one Susen Sarkar (P.W. 2) from the aforesaid premises to Howrah P.S. and after showing some powder said to be heroin obtained their obtained their signatures on some papers disclosing to them that the said powder was heroin recovered from the residence of Kanailal (accused). He further says that he did not see the accused on their arrival at Howrah P.S. on that date and that they were to Howrah P.S. in the afternoon but in the previous night, in course of raid the accused was arrested from premises No. 23, Netai Charan Dutta Lane and was taken to the police station by the police. He however next says that after their arrival in the afternoon on that date they saw the accused within the Howrah P.S. premises. Since the evidence of this witness did not corroborate the prosecution case in material respects he was declared hostile. His evidence, whatever may be its worth, indicates that the search or arrest of the accused did not take did not take place in his presence and that the accused was arrested in the previous night which would be the night between 18th and 19th of December, 1989. In his cross-examination on behalf of the defence he says that he did not see when the accused was taken under arrest by the police in the night and that on the morning following the night of arrest he learnt from the wife of the accused that the accused was taken under arrest by police to the P.S. from 23, Netai Charan Dutta Lane. He also says that he put all his signatures at Howrah Police Station in the afternoon following the night of arrest of the accused. P.W. 2 Susen Sarkar as I have already stated, was also declared hostile by the prosecution. He says that on the date mentioned under his signature in the seizure list, obviously meaning 19/12/1989 during noon time he and P.W. 1 Dilip Ghosh were taken by police of Bhabani Bhawan to Howrah P.S. and on the morning of that date, he learnt that on the previous night there was a raid by police at 23, Netai Charan Dutta Lane. His evidence also thus indicates that the appellant was taken into custody by the police in the night between the 18th and 19/12/1989 and if that be so, the prosecution case that the accused was arrested in the afternoon of the 19/12/1989 after search and seizure in presence of witnesses at premises No. 23, Netai Charan Dutta Lane stands demolished. However, since both the witnesses were declared hostile by the prosecution we will have to be cautious in assessing the evidentiary value of these hostile witnesses. But we find that in his cross-examination P.W. 3 A.S.I. Binoy Ghatak unequivocally lends support to the evidence of these two hostile witnesses that the accused was arrested and taken into custody in the night between 18/12/1989 and 19/12/1989. In his cross-examination P.W. 3 A.S.I. Binoy Ghatak who is himself a police witness clearly says that 'it is true that the accused Kanailal was arrested on the night between 18/12/1989 and 19/12/1989'. This police witness of the rank of an Assistant Sub-Inspector himself thus corroborates the evidence of the hostile witnesses that the accused was actually taken into custody by the police in the night between 18/12/1989 and 19/12/1989. If that be so, the prosecution case that the search, seizure and arrest of the accused were all made in the afternoon of the 19th December, 1989 stands demolished and the very foundation of the prosecution case suffers a big crack thereby rendering it difficult to hold that the prosecution have been able to establish their case beyond reasonable doubt regarding recovery of heroin from the possession of the accused at the stated date, time and place. At any rate there arises a doubt, undoubtedly a reasonable doubt about the factual respect of the case, the benefit of which has to go in favour of the appellant accused.