MONA DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal preferred by the accused/convict Mona Das against the order of conviction under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act) and sentence of rigorous imprisonment for 10 years with a fine of Rs. 1 lakh, in default, R.I. for two months more imposed by the learned Judge, Sixth Bench of the City Civil and Sessions Court, Calcutta, by his order dated 25th February, 1991. The prosecution case in short is that on 15th June, 1986 between 11.30 p.m. and 11.40 p.m. the accused was found standing in front of 243A, A. P. C. Road and was searched by the Sub-Inspector of Police P.W. 4, Sri Chittaranjan Mukherjee who was attached to Bartala P.S. and 30 small packets of Cellophane paper containing heroin and weighing about 5 gms. were recovered and seized from the wearing garment of the accused in presence of witnesses.

(2.) At this stage let us look to some relevant evidence on record. P. W. 4 is a Sub-inspector of Police who was attached to Bartala P.S. at the relevant time. He says that on 15th June, 1986 he was on round duty from 10.40 p.m. and after crossing Beadon Street when he arrived at A. P. C. Road he got information from source that a man was standing at 243A, A. P. C. Road (bus stand) with heroin packet in order to sell the same and he at once went there with force and the O.C of the P.S. and caught hold of that man who was standing alone. He further says that he asked that man (being the accused) to bring out what was there with him and the accused replied that he had nothing with him and on seeing that some passers-by assembled there he (P.W. 4) told them that there was heroin with the accused and, in presence of those men present there, searched the person of the accused and one small packet was found from the right pocket of the full shirt which the accused was wearing and on opening the said packet 30 purias of Cellophane paper containing heroin were found. P.W. 4 further says that he called two witnesses in whose presence he lodged the packet within an empty match box and weighed the contents of the Cellophane packet which was found to be 5 gms. His evidence is that he prepared seizure list on the spot and sealed the packet there. Dr. N. N. Chakraborty is the Director of Drugs, Central Public Health and Drugs Laboratory under Government of West Bengal, Calcutta. He has been examined to prove that the seized things were, on sample analysis, found to be heroin. P.W. 1 Rabin Mondal is a seizure list witness. So is P.W. 5 Asim Chakraborty. He was however declared hostile by the prosecution.

(3.) The evidence of the Sub-inspector of Police (P.W. 4) who made the search and seizure shows that the police party approached the accused (who was standing on A. P. C. Road) on the basis of source information that a man was standing there with heroin packet in order to sell the same. The learned Advocate Mr. Dutt draws our attention to section 42, N.D.P.S. Act and submits that when any search is made in connection with the commission of any offence under Chapter IV of the N.D.P.S. Act as referred to in the said section, on the basis of any information given by any person such information is required to be taken down in writing before making any such search. Indeed there is no direct evidence in this case as to whether any such information was taken down in writing before conducting the search. But the learned trial Judge in his judgment records that it was argued before him on behalf of the accused that prosecution had not proved the G.D which was the basis of the F.I.R. and the G.D has not been exhibited by the prosecution. The learned trial Judge has however recorded that the G.D was forwarded to the Magistrate on 16th June, 1986 and it was a part of the record and the learned trial Judge found there from that the F.I.R. was really an extract from the G.D containing material information and there was nothing to disbelieve the F.I.R. Even then, it is not clear whether the G.D was, recorded before the search was made because section 42 requires that the information must be taken down in writing before the search is made where such search is made on the basis of information. This aspect of the case is however not material for our present purpose inasmuch as section 42 applies to a case of search where such search is made in a building, conveyance or enclosed place but in the present case the search was made of the person of the accused on an open public road (being a public place) and therefore such search is governed by section 43 and not section 42 of the N.D.P.S. Act. Section 43 of the N.D.P.S. Act runs thus : 1) "Section 43. Power of seizure and arrest in pubic places--Any offices 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 in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article 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 an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic 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." As we have seen, since in the present case the search of the accused and seizure and arrest were made on a public road the matter is governed by section 43 under which the concerned officer can make a search of person and seizure irrespective of the question whether it is done before or after sun set, and the said section also does not require any prior taking down in writing, of any information on the basis of which such search may be made.