PALASH MONDAL Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) THE appellant was apprehended on 4th February, 2013, at about 16.35 hours by a police team from a location near Baruidaha Rail Gate under Kotwali Police Station in the district of Nadia on the allegation of having unlawful possession of heroin. Upon trial, he was convicted of offence punishable under the provisions of Section 17(b) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (the 1985) by the Judge, Special Court, N.D.P.S. Act, Nadia and sentenced to suffer Rigorous Imprisonment for ten years and to pay fine of rupees one lac, in default of which simple imprisonment of one year has been prescribed. The judgment of the Trial Court was delivered on 27th May 2014. The prosecution case is that on receiving information from secret source that clandestine and illegal business of heroin was being run from that place, Tapan Chatterjee, a sub -inspector of police attached to the said police station made a General Diary, and along with two constables Dipak Ghosh and Sankar Prasad Chakraborty left the police station to pursue the matter. Said Tapan Chatterjee has deposed as Prosecution Witness (P.W.1) in the trial whereas Sankar Prasad Chakraborty and Dipak Ghosh have also deposed on behalf of the prosecution as the P.W. 4 and P.W. 5. The prosecution version of the case, as it appears from the written complaint forming the basis of the FIR and also from the depositions of the Prosecution Witnesses, is that upon reaching the location referred to above as per source information the appellant was intercepted. Then two local witnesses who had assembled at the place of occurrence, being Madhab Chakraborty and Somnath Ghosh were asked to remain with the raiding team as witnesses. Alok Ranjan Munshi, who at the material point of time was Inspector -in -charge of the same police station had reached the said location for observing the procedure of search and seizure. On his arrival, he had offered the witnesses and the appellant to search him, disclosed to them his identity and informed the appellant that he was at liberty to get himself searched by any other Gazetted Officer other than him. In the F.I.R, what has been recorded as the response of the appellant to such offer is that "he need not". Thereafter, on service of notice, the appellant was searched and one small packet containing white powder was recovered from his left side pocket of the trousers (referred to in the F.I.R. as "full pant"). The content of the packet was tested on government supplied kit, which confirmed the content of the packet to be heroin. Alok Ranjan Munshi deposed for the prosecution in the trial as P.W. 6 whereas Madhab Chakraborty and Somnath Ghosh were examined as P.W.7 and P.W. 10. Both of them, however, were declared hostile.

(2.) THE content of the packet, according to the prosecution, was weighed by one Biplab Karmakar, a goldsmith (P.W. 3) and such weighment revealed the weight of the same to be 24 gms. As per prosecution case, the seized article forms more than small quantity but less than commercial quantity. From the main content, two samples, were individually packed, and labelled and all these articles were then seized. The sample was later sent for chemical examination, and pending the result of the chemical examination charge -sheet was filed specifying the offences therein under Sections 21/27 of the 1985 Act. The said charge -sheet is dated 31st March, 2013. Subsequently, the Forensic Examination Report was prepared on 2nd July, 2013 by the Central Forensic Science Laboratory and the result of the examination specified: - -

(3.) CONSIDERING the evidence adduced and the materials on record the Trial Court found that the accused -who is the appellant before us - was apprehended at a public place. The Trial Court held that in such a situation, the protective measures for an accused contemplated in Section 42 of the 1985 Act was not applicable in the case, but it was the provisions of Section 43 which was applicable. On the aspect of compliance of the provisions of Section 50 of the 1985 Act, a point on which elaborate arguments have been advanced before us, the Trial Court found that the accused had exercised his option of being searched in presence of Gazetted Officer, and the Gazetted Officer in this case was the P.W. 6. It was held by the Trial Court that there was proper compliance of the provisions of Section 50 of the 1985 Act. So far as the depositions of P.W. 7 and P.W. 10 are concerned, relying on certain authorities, the Trial Court held that a witness who had admitted his signature on a document could not deny knowledge of the content of the document. A judgment of the High Court of Orissa in the case of Pilli Dillii Dora v. State of Orissa [ : (1995) Cri LJ 1758] was cited on the same point. Referring to a judgment of the Allahabad High Court (Lucknow Bench) in the case of Mahadeo v. State [ : (1990) Cri L.J. 858] the Trial Court held that there cannot be any presumption that the police officials are not trustworthy. Testimony of police officials ought to be treated in the same manner as the testimony of other witnesses and testimony of police officials ought not to be rejected solely on the ground that it has not been corroborated by any other witness.