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2023 SCC OnLine Cal 2058 : 2023 Cri LJ 4450

In the High Court of Calcutta

(BEFORE DEBANGSU BASAK AND MD. SHABBAR RASHIDI, JJ.)

Vijoy Shaw
Versus
State of West Bengal
CRA (DB) 39 of 2022 and CRAN 2 of 2022
Decided on July 19, 2023, [Heard on : April 27, 2023]
Advocates who appeared in this case :
For the appellant : Mr. Manjit Singh, Adv.
Mr. Gaganjyot Singh, Adv.
Mr. Biswajit Mal, Adv.
Mr. Abhishek Bagal, Adv.
Mr. Akbar Laskar, Adv.
For the State : Mr. Partha Pratim Das Adv.
Ms. Manasi Roy, Adv.
The Judgment of the Court was delivered by
MD. SHABBAR RASHIDI, J.:— The appeal is in assailment of the
judgment of conviction dated February 24, 2020 and order of sentence
th
dated February 27, 2020 passed by 12 Additional Sessions Judge cum
Special Court under Narcotic Drugs and Psychotropic Substances Act in
connection with Sessions Trial No. 03 (08) of 2017 arising out of
Sessions Case No. 08 (05) of 2017.
2. By the impugned judgment, the appellant was convicted for the
offence punishable under Section 20 (b) (ii) (c) of the Narcotic Drugs
and Psychotropic Substances Act. By the impugned order of sentence,
the appellant was sentenced to undergo 14 years of rigorous
imprisonment and to pay a fine of Rs. 150,000 and in default to
undergo further rigorous imprisonment for another one year.
3. The fact that gives rise to the instant case in a nutshell is that the
de-facto complainant received a source information on February 20,
2017 at about 14.00 hrs to the effect that one male peddler will
supply/sell charas in Watgunge police station area. The information was
reduced into writing and was forwarded to the officer-in-charge,
Narcotic Cell, D.D. Under due permission from the Assistant
Commissioner, Narcotic Cell, D.D. a raiding team was formed and the
raiding party proceeded to the spot under Watgunge police station area
at about 15.00 hrs. for conducting raid along with the source, testing
kit, packing materials, seals et cetra. They reached the spot i.e. D.H.
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Road in front of R/S Enterprise at about 15.30 hrs being led by the
source. At about 16.00 hrs. the source pointed to a young male person
coming from D.H. Road from South to North direction. 4. It is further
case that the de-facto complainant detained the said person at
Diamond Harbor Road in front of R.S. Enterprise, P.S. Watgunge,
Kolkata 23 and disclosed their identity. The de-facto complainant
requested from amongst the assembled crowd to be witness to the
search and seizure to which two persons agreed. The detainee disclosed
his name as the appellant.
4. The de-facto complainant informed the detainee of his legal rights
to be searched in presence of a Magistrate or a Gazetted Officer, by
serving written option to which the detainee agreed to be searched on
the spot in presence of a Gazetted Officer and refused to go anywhere
else. The de-facto complainant searched for a Gazetted Officer in the
locality and having failed to find one, he informed his superior. At about
17.30 hrs, PW2 came to the spot in his official vehicle and uniform who
was introduced to the detainee and the witnesses as a Gazetted Officer.
PW2 served the second option in writing upon the detainee whereupon
the detainee reiterated his choice to be searched in presence of a
Gazetted Officer on the spot.
5. The detainee searched the person of the de-facto complainant and
other members of the raiding team but nothing objectionable could be
found. Thereafter, the de-facto complainant conducted search on the
person of the detainee. A navy blue medium size bag was recovered
from his right hand. The said bag was found to contain black polythene
packet containing cannabis resin commonly known as ‘charas’. A cash
of Rs. 30/- was also found. The recovered contraband was tested with
the help of testing kit and has found to be positive for ‘charas’.
Accordingly, the narcotic contraband and the cash was seized from the
possession of the detainee under a seizure list dated February 20,
2017. Two samples of 50 grams each were collected from the mother
packet. The samples along with mother packet and the polythene were
packed, sealed and labeled and marked. The Gazetted Officer, the
detainee and the witnesses put their respective signatures/left thumb
impression on the seizure list and the labels. Thereafter, the de-facto
complainant examined the witnesses and the Gazetted Officer and
recorded their statements under Section 161 of the Code of Criminal
Procedure. 7. On completion of the proceedings, the de-facto
complainant lodged a written complaint with the Officer-in-charge,
Watgunge Police Station. He also handed over the detainee and the
seized articles, seizure list and relevant documents to the Officer-in-
charge, Watgunge Police Station for preparation of inventory.
6. On the basis of such written complaint, Watgunge Police Station
Case No. 49 of 2017 dated February 20, 2017 under Section 20(b)(ii)
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(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was
started against the appellant. The police took up investigation and on
completion of investigation submitted charge sheet against the
appellant. On the basis of materials in the case diary, charge under
Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances
Act, 1985, was framed against the appellant on August 11, 2017. The
appellant pleaded not guilty to the charge and claimed to be tried.
7. At the trial, in order to prove the charge, prosecution examined 7
witnesses. In addition, the prosecution also relied upon certain
documentary and material evidences.
8. At the time of argument, learned advocate for the appellant
submitted that there was a discrepancy in the weight of the seized
contraband seized by the seizing officer and the chemical Examiner who
examined the contraband. It was contended that PW 1 has stated in his
deposition that at the time of search and seizure, he took two samples
weighing 50 grams each, out of the mother packet whereas the
chemical Examiner found the sample packets to contain 66 grams of
contraband in the sample packets. It was contended that in terms of
the ratio laid down in (2005) 9 SCC 773 (Rajesh jagdamba Avasthi v.
State of Goa), it was held by the Hon'ble Supreme Court that
discrepancy in the weight of the charas as allegedly seized and as
received by the chemical expert brings into question the chain of
custody and is sufficient to warrant an acquittal in the case under the
NDPS Act. 11. Learned advocate for the appellant also submitted that
the case was investigated by PW3 initially and thereafter the
investigation was transferred to PW7. The Malkhana register of the
detective Department has not been produced during the trial which
raises a significant doubt over the chain of custody of the samples
examined by the chemical expert. It was further contended that the
person who actually carried the sample packets to the Central forensic
science laboratory has not been identified.
9. The learned advocate for the appellant also submitted that the
most natural witnesses that is to say the shop owners of RS Enterprise
or the nearby shops and houses have not been arrayed as a witness in
this case. This raises all reasonable doubts regarding the veracity of the
search and seizure.
10. It was also contended on behalf of the appellant that in spite of
the appellant conducting search on the person of the raiding party, no
seizure list in this regard was prepared and proved. Moreover, the
specimen brass seal was not handed over to an independent person.
11. Learned advocate for the appellant also contended that the
prosecution did not examine the other independent witness to the
seizure list and the members of the raiding team. The learned advocate
for the appellant relied upon (2017) 15 SCC 684 (Naresh Kumar@ Nitu
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v. State of Himachal Pradesh) wherein it was held that if the

prosecution seeks to initially rely on any independent witness, the same
cannot be discarded subsequently. It was also submitted that the
signatures of the members of the raiding team were not obtained on
the seizure list and other documents nor their details were disclosed in
the written complaint raising serious ground on the veracity of the case.
15. Learned advocate for the appellant also contended that the
appellant was found in possession of contraband which was slightly
above the commercial quantity and the appellant was convicted for the
first time in connection with this case. The learned trial court failed to
consider such mitigating circumstances and awarded a punishment of
14 years with a fine of Rs. 1.5 lakhs, instead, learned trial court ought
to have awarded the minimum punishment prescribed for the office
which was 10 years. In this regard, the learned advocate for the
appellant relied upon (2013) 1 SCC 570 (Shahejadkhan Mahebubkhan
Pathan v. State of Gujrat), (2005) 4 SCC 146 (Balwinder Singh v.
Assistant Commissioner, Customs and Central Excise) and (2018) 13
SCC 600 (Pradeep Bachhar v. State of Chhattisgarh)
12. On the other hand, it was contended on behalf of learned
advocate for the State that PW 3 was not the investigating officer of
this case at any stage. In fact, PW3 was the recording officer and
received the seized alamats. The investigation of the case was handed
over to PW 7 from the very beginning. It was also submitted that the
deposition of PW7 discloses that he received the seized articles in
packed and sealed condition from the Malkhana of the police station
under proper receipts which was duly tendered in evidence and marked
as Exhibit 12 and 12/1. Such articles were kept in the central
Malkhana, Lalbazar and the requisition submitted by PW7 for keeping
the seized articles in the Malkhana was also tendered in evidence and
marked as Exhibit 9 collectively. The seized articles were sent through a
challan containing seal impression of DC, DD which was also tendered
in evidence and marked as Exhibit 21. It is submitted by learned
advocate for the State that the chain of custody seized articles were
duly proved at the trial and was beyond any doubt.
13. Learned advocate for the State further submitted that there was
no discrepancy in the weight of the seized contraband in so far as
sample packets were prepared by the seizing officer at the spot
marking the packets as S 1 and S 2. The seized contraband was sent
for chemical examination under proper challan and was received by
chemical Examiner with intact seal. It was stated that the sample was
received by chemical Examiner in good condition with its packing and
labels; minor difference in weight of the samples does not create any
dent in the prosecution case.
14. Learned advocate for the State has submitted that the
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prosecution has been able to bring home the charges leveled against
the appellant with the help of cogent and convincing evidence and as
such, the impugned judgment of conviction and order of sentence does
not deserve any interference.
15. The de-facto complainant deposed as PW1. He has stated that
on February 20, 2017 at 14.00 hrs, he received a source information
that one drug seller was to come to Watgunge P.S. area in the
afternoon. PW1 reduced the information into writing and informed his
immediate superior, Inspector Biswajit Banik of Noarcotic Cell D.D. and
under his direction, PW1 formed a raiding team. He also obtained
permission from the Assistant Commissioner of Narcotic Cell.
16. The source information reduced into writing was tendered in
evidence and marked as Exhibit 1 and the permission letter was
marked as Exhibit 2. He further stated that the raiding team left
Lalbazar at 15.00 hrs in a vehicle carrying the necessary testing kit,
weighing scale, package materials, brass seal and other necessary
accessories and reached the spot. The source led the raiding team in
front of R.S. Enterprise on the Diamond Harbour Road at about 15.30
hrs and maintained a watch. After sometimes, the source pointed out
the person coming from the north direction having a bag in his right
hand about 14.00 hours. PW 1 intercepted him in front of R.S.
Enterprise on the road at 70/6 Diamond Harbour Road, Calcutta 23. PW
1 disclosed his identity and explained the purpose of his detention. In
the meantime some people started gathering there. PW 1 informed the
gathering that the detained persons was carrying narcotic and was
liable to be searched. He requested the gathering to be a witness of
search and seizure under NDPS Act. Two persons volunteered to be
witnesses. 21. PW 1 further stated that he informed the detainee with
his legal rights that he might be searched in presence of a Gazetted
Officer or a Magistrate at the spot or if he wished he could be taken to
the office of a gazetted officer or a Magistrate. He also sought the first
option upon the detainee and explained the meaning of a gazetted
officer and a Magistrate. The detainee opted to be searched by a
gazetted officer at this spot. The detainee was not able to write down
his reply to be first option and as per the request of the detainee, the
reply was written by PW 1 in the language of the detainee and he put
his left thumb impression on the first option. The first option was
tendered in evidence and marked as Exhibit 3.
17. PW 1 further stated that he searched for a gazetted officer in the
locality but failed to find one. Accordingly, he informed his superior to
send a gazetted officer at the spot. At about 17.30 hours, one inspector
came to the spot in uniform being PW 2 at the spot to supervise the
search and seizure under NDPS Act as a gazetted officer. He was
introduced by PW 1 to the detainee and the witnesses. PW 2 informed
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the detainee of his right to be searched on the spot in presence of a

gazetted officer. He also served the second option upon the detainee
whereupon; the detainee opted to be searched at the spot in his
presence. The detainee also searched the person of the police personnel
in the raiding team including that of PW 1 but nothing could be found
except the personal belongings. The detainee was not in a position to
write down his option on the second option to and on his request his
reply was written by PW 2 to which, the detainee put his left thumb
impression. The second option form was also tendered in evidence and
was marked as Exhibit 4.
18. Thereafter, PW 1 proceeded to search the person of the detainee
on the spot in presence of the gazetted officer and independent
witnesses. The Navy blue bag carried by the detainee was searched and
found to contain a black polythene packet which, in turn, was found to
contain rectangular-shaped slab with Brown coloured adhesive tape.
The slab were found to contain black coloured substance which was
tested with the testing kit and was found to be positive for charas i.e.
cannabis resin. The seized contraband, was found on weighing to be 1
kg and one hundred grams in weight. PW 1 extracted sample packets of
50 grams each from the mother packet and packed, sealed and labeled
the sample packets and marked the same as S 1 and S 2. The mother
packet along with the polythene packet as well as the bag was also
sealed and labeled with a marking. A cash of Rs. 30/- was also
recovered from the pocket of the detainee which were also sealed and
labeled. The recovered articles including a brass seal were seized by PW
1 under a seizure list prepared at the spot in presence of the gazetted
officer and the witnesses which was tendered in evidence and marked
as Exhibit 5. PW 1 also stated that the detainee failed to give any
satisfactory answer for the possession of narcotic contraband, so he was
arrested at about 20.00 hours. He proved the memo of arrest and
inspection memo prepared in the pen and signature of PW 1 were also
marked as Exhibit 6 and Exhibit 6/1. At the trial, PW 1 also identified
the sample packets of the contraband and that of the cash money
produced in the court which were marked as Mat. Exhibit I and II and
the signatures on the labels were marked as Mat. Exhibit I/I and II/I
respectively. The mother slab of contraband and signatures on its labels
were also identified by PW1 as Mat. Exhibit III series and IV series
respectively.
19. PW1 handed over the seized articles, the seizure list and the
detainee to the officer-in-charge of Watgunge Police Station which was
entered in an inventory list. PW1 also submitted a written complaint
(Exhibit-7) with the officer-in-charge of Watgunge Police Station.
Although, PW1 was extensively cross examined on behalf of the
appellant but nothing favorable could be extracted so far as the search,
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recovery and seizure of narcotic contraband from the possession of the

appellant is concerned.
20. The police officer who acted as a Gazetted Officer was examined
as PW2. He has stated that on February 20, 2017 he was directed by
the Deputy Commissioner, Port Division to go to the spot situated in
front of R.S. Enterprise on Diamond Harbour Road to act as a Gazetted
Officer where a person was detained by the officers of Narcotic Cell on
the suspicion of possessing contraband. Accordingly, he informed the
Officer-in-charge, made a note in the GDE (Exhibit 9) and proceeded to
the spot. He reached the spot at about 17.30 hrs. Reaching there he
saw one person standing in the middle of a crowd. PW1 came to him
and disclosed his identity and introduced PW2 with the suspect, the
members of the raiding team and the independent witnesses. He
identified the appellant in court. PW2 was further informed by PW1 that
he had served first option upon the suspect who had opted to be
searched on the spot in presence of a Gazetted Officer. PW2 served
second option upon the suspect which was tendered in evidence and
signature of PW2 thereon was marked as Exhibits.
21. PW2 has fully corroborated the statement of PW1 with regard to
the manner of search and seizure of narcotic contraband and collection
of samples et cetra form the possession of the appellant. PW2 proved
his signatures on the seizure list and the labels attached to the seized
articles.
22. The recording officer deposed as PW3. He stated that on
February 20, 2017, he was called upon by the Officer-in-charge of
Watgunge Police Station and directed him to collect the written
complaint, seizure list, seized articles and the accused. Accordingly,
PW3 lodged a GDE (Exhibit 10) and started a specific Case. He filled up
the formal First Information Report and received four packets of seized
articles as well as the arrested accused. PW3 proved the endorsement
of the Officer-in-charge on the written complaint (Exhibit 7/1) and the
formal FIR (Exhibit 11). He also identified the packets containing the
seized articles in court. PW3 deposited the seized article with the PS
Malkhana, the relevant entry of which was marked as (Exhibit 13). On
February 22, 2017 he handed over the case to PW7 under order of
Deputy Commissioner, Detective Department by lodging a GDE in this
regard (Exhibit 14). 28. One of the independent witnesses was
examined as PW4. He stated that on February 20, 2017, he was going
to play through the Diamond Harbour Road. He saw a gathering in front
of R.S. Enterprise. Going there he found a person standing with a navy
blue color bag. One officer i.e. PW1 came out and told that the man was
intercepted on the suspicion of possessing Narcotic substance and
requested him to be a witness. He and one Sk. Tarik agreed to be such
witness. He identified the appellant in court. 29. PW4 also stated that
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the police officer asked the appellant whether he wanted to be searched

in presence of a Magistrate or a Gazetted Officer. The suspect was not
able to read and write for which the answer on the option form was
written by PW1 as per the version of suspect. PW4 also signed on such
paper along with the Gazetted Officer. The suspect also put his Left
Thumb Impression on it. He has also stated that on the request of PW1,
PW2 came to the spot to act as a Gazetted Officer and served the
second option upon the suspect. PW4 also stated that after observing
all formalities, the bag of the suspect was searched by PW1 and on
such search the bag was found to contain a polythene packet
containing some square shape material wrapped with adhesive tape.
The said article weighed 1 kilogram and 100 grams. A cash of Rs. 30/-
was also recovered. The said articles were seized under a seizure list.
PW4 proved his signature on the seizure list and option forms. Samples
were also collected in two packets marked S 1 and S 2 and he signed
on the labels attached to such packets (Mat. Ext. III/6, IV/5 and IV/6)
respectively. 30. The chemical Examiner was examined as PW 5. He
stated that on February 23, 2017, his laboratory received one Brown
paper packet marked S 1 from Watgunge police station in connection
with case number 49 dated February 22, 2017. Upon receipt the packet
was marked with laboratory number. At the time of receiving, the seal
on the packet was found to be intact and tallied with the specimen seal
forwarded with the memo. The said packet was found to contain 66
grams of semi-solid lumps. The articles were tested in the laboratory by
the chemist under the supervision of PW5. Upon such testing the article
was found to be charas. PW5 accordingly, prepared a test report which
was tendered in evidence and was marked as Exhibit 15. He also
identified the packet containing the remnants of the contraband and an
envelope in which the samples were received by his office. PW5 also
identified the Mat. Exhibit I. 31. One of the members of the raiding
team was examined as PW 6. He stated that on February 20, 2017, at
about 3.00 p.m., he accompanied PW 1 to 70/6, Diamond Harbour
Road. After some time one person was seen coming along Diamond
Harbour Road. At the indication of the source, the said person was
apprehended by the raiding team including PW6. PW 1 disclosed his
identity before such person and informed him that he was suspected of
possessing narcotic contraband. PW6 also stated that two independent
witnesses from amongst the gathered crowd came forward to assist in
the search. The suspect was informed of his right if he wanted to be
searched in presence of a Magistrate or a Gazetted Officer. In this
regard, PW6 signed on a document prepared by PW 1. He further stated
that at about 17.30 hours, the Gazetted Officer came to the spot and
served the option to the suspect whether he wanted to be searched in
presence of a Magistrate or a Gazetted Officer. PW6 signed on search
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option besides the witnesses and the detained person (Exhibit 4/5). 32.
PW6 further stated that the detained person searched the police
personnel but nothing objectionable could be found. Thereafter, PW 1
conducted search on the person of the detained person and on such
search, a cash of Rs. 30/- was recovered from his pocket. The bag
carried by the suspect was found to contain a polythene packet
containing charas which was wrapped with Brown paper. The
contraband was found to be 1 kg and 100 grams on weighing. PW 1
collected sample packets taking 50 grams each from the seized
material. Thereafter, the mother packet and the sample packets were
packed, sealed and labeled. PW 6 signed on the labels attached to the
mother packet as well as sample packets. The packets were also signed
by the independent witnesses and the Gazetted Officer. The articles
were seized under a seizure list which was also signed by PW6 along
with others which he identified. PW6 also identified his signature on the
seizure list as well as on the labels attached to the mother packet and
the sample packets.
23. The investigating officer deposed as PW7. He stated that on
February 20, 2017, he took up investigation of the case in terms of the
order of Deputy Commissioner, Detective Department. He tendered the
order of the Deputy Commissioner which was marked as Exhibit 16. He
further stated that, in course of investigation, he went to Watgunge
police station and took over the charge of investigation. He took over
the custody of the accused and seized articles from the police station
under a GDE (Exhibit 17). He also received the seized articles under
sealed condition from the PS Malkhana by putting his signature on the
Malkhana register (Exhibit 12). He took up the custody of the appellant
from the lock-up. He also proved the lock-up register (Exhibit 18). He
identified the appellant in court.
24. PW7 also stated that in course of investigation, he kept the
accused in the central lock-up and placed the seized articles in central
Malkhana, Lalbazar under a requisition and receipt to put the alamats at
the central Malkhana (Exhibit 19 collectively). He also stated that in
course of investigation he visited the place of occurrence, prepared
sketch map (Exhibit 20). On February 23, 2017 he sent the seized
articles for chemical examination under a challan bearing the official
seal and signature of the Deputy Commissioner, Detective Department
(Exhibit 21). On completion of investigation, under due permission of
his superior, PW7 submitted charge sheet on May 27, 2017 against the
appellant under section 20 (b) (ii) (c) of the Narcotic Drugs and
Psychotropic Substances Act. 35. On completion of the evidence on
behalf of the prosecution, the appellant was examined under Section
313 of the Code of Criminal Procedure. The circumstances appearing
against the appellant were placed before him in such examination,
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whereupon the appellant pleaded his innocence having no knowledge

about the incident. He further stated in his examination under Section
313 of the Code of Criminal Procedure that he was picked up for motor
theft. Thereafter he was handed over to Narcotic Cell and was brought
to Watgunge police station. His family had filed complaint against the
officers in the case for falsely implicating him. He although intended to
adduce defense witness but no defense witness appears to have been
examined on behalf of the appellant at the trial.
25. The prosecution case charges the appellant with the possession
of commercial quantity of ‘Charas’. He was apprehended with one
kilogram and one hundred grams of charas in contravention of the
provisions of the Narcotic Drugs and Psychotropic Substances Act,
1985.
26. According to the prosecution case PW1 received a source
information that a person was going to deal in charas in Watgunge
police station are on February 20, 2017. PW1 reduced the information
into writing (Exhibit 1) and under due permission from his superior
(Exhibit 2) formed a raiding team to work out the information. He
moved to the reported spot at Diamond Harbour Road in front of R.S.
Enterprise, with all the necessary kit and other accessories
accompanied by the raiding team and the source. Reaching there, PW1
intercepted the appellant as per identification of the source.
27. After observing all legal formalities, the appellant was searched
and narcotic contraband weighing one kilogram and one hundred gram
in the form of charas was recovered from the possession of the
appellant. The appellant failed to produce any valid document for the
possession of contraband for which he was arrested in accordance with
law. Samples were collected from the seized contraband in accordance
with the established rules for the purpose of chemical examination.
28. So far as recovery of the contraband from the possession of the
appellant is concerned, it is the case of prosecution that the appellant
was intercepted on the Diamond Harbour Road in front of R.S.
Enterprise being identified by the source. He was informed that he was
being intercepted on suspicion of carrying narcotic contraband. A
search of the person and property of the appellant was proposed to be
searched. The seizing officer informed him of his legal rights to be
searched in presence of a Magistrate or a Gazetted Officer by serving
the first Option form in writing (Exhibit 3). In the meantime, some
persons assemble at the spot and two of the crowd volunteered to be
independent witnesses to search and seizure. The witnesses signed on
Exhibit 3 whereas, the appellant put his left thumb impression.
29. The appellant opted to be searched on the spot in presence of a
Gazetted Officer whereupon, at the request of PW1, one Gazetted
Officer, PW2 arrived at the spot. He served the second option upon the
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appellant (Exhibit4) which was also signed by the witnesses. The

appellant put his left thumb impression on such writing. The appellant
also conducted search on the person of the members of the raiding
team but nothing objectionable could be found.
30. Thereafter, a search was conducted by PW1 and during such
search one kilogram and one hundred grams of ‘Charas’ besides the
personal belongings was recovered from the possession of the
appellant. The appellant failed to produce any valid document for the
possession of narcotic contraband. The aforesaid contraband along with
some cash money recovered so, from the possession of the appellant,
were seized by PW1 under a seizure list (Exhibit 5). The seizure list
contained the signature of the independent witnesses and left thumb
impression of the appellant. The appellant was then arrested at the
spot by duly filled memo of arrest and inspection memo. The recovery
of contraband from the possession was and the manner of such
recovery was fully corroborated by the prosecution witnesses including
the independent witness. The seized articles along with the sample
packets were produced in court and identified by the witnesses.
31. The evidence on record goes to establish without any iota of
doubt that the appellant was found carrying narcotic contraband at the
relevant date and time and was arrested from the spot situated on the
Diamond Harbor Road in front of the shop of R.S. Enterprise. Although,
the appellant, at the time of his examination under Section 313 of the
Code of Criminal Procedure made out a case that he was picked up by
the police in connection with a case of motor theft and was brought first
to Lalbazar and then to the spot from where recovery has been shown.
Ultimately, he was implicated in this case. He also stated that he had
filed a complaint against the police for false implication.
32. In answer to a question in such examination, the appellant gave
out to adduce defense witness. However, neither any defense witness
was adduced on behalf of the appellant nor the appellant produced the
complaint lodged by him for the false implication in this case. The
details of the case regarding motor vehicle theft, in connection of
which, the appellant was first arrested, has also not been brought on
record. For such reasons, we are of the opinion that the appellant failed
to justify his presence at the spot at the relevant date and time. He
also appears to have failed to establish that he was falsely implicated in
this case.
33. The evidence on record also shows that the seized contraband
was duly packed, sealed and labeled and was brought to Watgunge
police station where it was handed over to PW3 who, in turn, deposited
the same with the PS Malkhana on February 20, 2007. Such deposit has
been duly proved by production of Malkhana Register (Exhibit 12).
Later on, the said articles were handed over to the investigating officer
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PW7 who received the same upon due receipt endorsed on the
Malkhana Register itself. He kept the seized articles in the Central
Malkhana, Lal Bazar under proper entry in the Malkhana Register
(Exhibit 19) on February 22, 2007.
34. The seized articles were sent by PW7 for chemical examination
on February 23, 2007. The chemical examiner, PW5, has stated that his
office received the seized article marked with S 1 on February 23, 2007
in connection with Watgunge PS Case No. 49 dated February 22, 2007.
He categorically stated in his deposition that the seized articles were
sent under a memo and the condition of the seal on the packet at the
time of receiving was found to be intact and tallied with the specimen
seal forwarded with the memo. Therefore, it transpires from the
evidence on record that the prosecution has convincingly proved the
chain of custody of the seized articles from the time it was seized till it
was received by the chemical examiner without any reasonable fissure
therein.
35. Learned advocate for the appellant has doubted the report of the
chemical examiner vis-à-vis alleged seizure of contraband from his
possession, on the ground that there was notable difference in the
weight of the sample sent to it. According to the case of the
prosecution, a sample of 50 grams was collected at the time of seizure
of the contraband which was sent for chemical examination. However,
the gross weight and remnant weight of the packet containing the
contraband marked with S 1 was found to 66 grams and 59 grams
respectively.
36. It is trite law that what has to be ensured is that what has been
recovered is what has to be sent for chemical analysis. In case there is
any doubt that what was received by the Chemical Analyser is not the
same, then the benefit of that doubt could be given to the accused. But
in cases where it is proved that what was sent to the Chemical Analyser
is the same as what were recovered, minor differences in weight would
not vitiate the trial.
37. In the instant case, as noted above, a search and seizure was
made on February 20, 2017. PW1 has testified that the seized articles
were packed, sealed and labeled at the spot itself with collection of
samples. Exhibit 5 series is the document which establishes the seizure
of not only the mother packet and other items but the sample packets
as well. On the same day a complaint was lodged and the seized
articles were deposited with the Malkhana of Watgunge police station
by Exhibit 12 coupled with Exhibit 10. Later on, the investigation of the
case was handed over to PW7, an officer from Narcotic Cell, Detective
Department, Lal Bazar. Accordingly, PW7 received the seized articles
from Watgunge PS on February 22, 2017 vide Exhibit 14 and Exhibit
17. He deposited the same with Central Malkhana, Lal Bazar which is
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duly proved with the help of Exhibit 19. PW7 has stated that he sent
the sample contraband for chemical examination on February 23, 2017.
Exhibit 15/2 goes to show that the seized alamat marked S 1 was
received by the chemical examination laboratory on February 23, 2017
and that the seal was found intact which tallied with the specimen seal
sent with the memo. Therefore, the aforementioned evidence without
any bit of doubt establishes that the articles sent for chemical
examination, was the same what were recovered from the appellant on
February 20, 2017.
38. In the case of Rajesh jagdamba Avasthi (Supra) the Hon'ble
Supreme Court was pleased to set aside the conviction on the ground
that the difference in weight of the contraband in one of the packets
was found to be significant while in one of the packets it was minimal.
It was also noted in the said case that
“15. This is not all. We find from the evidence of PW 4 that
he had taken the seal from PSI Thorat and after preparing the
seizure report, panchnama, etc. he carried both the packets to
the police station and handed over the packets as well as the
seal to Inspector Yadav. According to him on the next day, he
took back the packets from the police station and sent them
to PW 3 Manohar Joshi, Scientific Assistant in the Crime
Branch, who forwarded the same to PW 1 for chemical
analysis. In these circumstances, there is justification for the
argument that since the seal as well as the packets were in
the custody of the same person, there was every possibility of
the seized substance being tampered with, and that is the
only hypothesis on which the discrepancy in weight can be
explained. The least that can be said in the facts of the case is
that there is serious doubt about the truthfulness of the
prosecution case.”
39. However, in the case at hand, the seizure was made by PW1.
The seized articles were handled by PW1, PW3, PW7 and the officers of
two Malkhanas at different times. There is no case that the same person
was in possession of the samples and the seal leaving any opportunity
of meddling with the seized articles. Moreover, the difference in weight
of the contraband received by the chemical analyzer seems to be too
minimal to be 59 grams instead of 50 grams. Such minimal difference
in weight coupled with the manner of handling the alamats leaves no
space for an inference with regard to tampering with it. The prosecution
appears to have proved the chain of custody of the seized articles
beyond any dent and it can be safely held that the articles sent for
chemical examination was the same which was recovered from the
possession of the appellant.
40. It is further contention of the appellant that the members of the
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raiding team were not examined at the trial. One of the independent
witnesses who figured in the seizure list has also not been examined by
the prosecution. Such conduct on the part of the prosecution amounts
to withholding of vital witnesses which tells upon the veracity of the
prosecution case. In the case of Naresh Kumar@ Nitu (Supra) it was
held by the Hon'ble Apex court that,
“In a case of sudden recovery, independent witness may
not be available. But if an independent witness is available,
and the prosecution initially seeks to rely upon him, it cannot
suddenly discard the witness because it finds him
inconvenient, and place reliance upon police witnesses
only………..”.
41. In the instant case, however, the recovery cannot be termed as
sudden recovery. The searching party moved on a source input received
before hand. Moreover, besides PW1, another member of the raiding
team, PW6 has been examined on behalf of the prosecution, who has
fully supported the case of the prosecution. To our opinion, it is not at
all necessary that each and every member of the raiding team must be
examined and non-examination of any of such member is fatal to the
case. It is the prerogative of the prosecution to take a call as to what
and how much of evidence it requires adducing for proof of its case.
Thereafter, it is the court to consider whether the case is proved
enough to justify a conviction or otherwise. 53. It is the case of the
prosecution that two independent persons agreed to be witnesses to
search and seizure. The search and seizure was made in their presence
and both of them put their signatures on the seizure list, besides
others. One of such independent person has deposed in favour of the
prosecution as PW4 and supported the case of the prosecution, as made
out in the First Information Report. He has sufficiently testified the
search and seizure of narcotic contraband from the possession of the
appellant. Non-examination of the other independent witness does, in
no way, gives rise to an implication that the other independent witness
was discarded for being hostile to the case of the prosecution. He was
simply not examined for any reason whatsoever. The case also does not
fall in the category where it can be said that the prosecution discarded
the independent witnesses and relied solely, upon police witnesses.
Therefore, we are of the opinion that in the given facts, ratio laid down
in the case of Naresh Kumar@ Nitu (Supra) is hardly applicable in the
present case.
42. Exhibit 15 series establishes that the articles recovered and
seized from the possession of the appellant, on chemical examination,
was found to be ‘Charas’ with the purview of Narcotic Drugs and
Psychotropic Substances Act, 2012. The appellant having failed to show
any valid document for the possession of narcotic contraband, was
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surely liable for the violation of the provisions of the said Act of 2012.
Therefore, we find no illegality or infirmity in the findings arrived at by
the learned trial court in holding the appellant guilty of the
contravention of the provisions of the NDPS Act and ultimately
convicting the appellant for the offence punishable under Section 20
(b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act,
2012.
43. It was also contended by Learned advocate for the appellant that
the appellant was found in possession of narcotic contraband which was
slightly above the commercial quantity and he was never convicted for
a similar offence earlier. The learned trial court failed to appreciate such
mitigating circumstances and awarded a punishment of 14 years with a
fine of Rs. 1.5 lakhs, instead, learned trial court ought to have awarded
the minimum punishment prescribed for the office which was 10 years.
44. Shahejadkhan Mahebubkhan Pathan (Supra), the Hon'ble
Supreme Court laid down that,
“9. It is projected before us that both the appellants are
first-time offenders and there is no past antecedent about
their involvement in offence of like nature on earlier
occasions. It is further brought to our notice, which is also not
disputed by the learned counsel for the State that as on date,
the appellants had served nearly 12 years in jail. In view of
the same and in the light of the decision of this Court, in
Balwinder Singh [(2005) 4 SCC 146 : 2005 SCC (Cri) 1092],
while confirming the conviction, we reduce the sentence to 10
years which is the minimum prescribed sentence under the
relevant provisions of the NDPS Act.”
45. Similarly in the case of Balwinder Singh (Supra) the conviction
of the appellant therein was reduced from 14 years to 10 years by the
Hon'ble Supreme Court, considering the fact that the convict was
convicted for the first time in a case under NDPS Act.
46. In Pradeep Bachhar (Supra), the Hon'ble Supreme Court, noting
the ratio laid down in the case of Shahejadkhan Mahebubkhan Pathan
v. State of Gujrat, reduced the sentence of 12 years to 10 years, in
consideration of certain mitigating circumstances lying in favor of the
appellant, including first offence under NDPS Act by the convict.
47. In the instant case, the appellant was found in possession of one
Kilogram and one hundred grams of charas which is slightly above the
commercial quantity of one Kilogram. No material has been brought on
record to prove that the appellant was previously involved or ever
convicted for an offence for violation of the provisions of NDPS Act.
There are no materials on record to consider the other mitigating
circumstances like economic condition or the family composition of the
convict who would suffer for the appellant remaining in custody.
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Nevertheless, one consideration, in terms of the ratio laid down in the

abovementioned case i.e. criminal antecedent in connection with similar
offence, surely lies in favor of the appellant.
48. Therefore, in view of the ratio laid down by the Hon;ble Supreme
Court in the cases of Shahejadkhan Mahebubkhan Pathan (Supra),
Balwinder Singh (Supra) and Pradeep Bachhar (Supra) we are of the
opinion that the sentence passed by learned trial court be reduced to
the minimum punishment prescribed for the offence which is 10 years,
instead of 14 years as awarded by learned trial court.
49. In the light of the discussions made hereinbefore, the impugned
order of conviction dated February 24, 2020 of the appellant is hereby
affirmed. The impugned order of sentence dated February 27, 2020 is
however, modified as indicated above.
50. The instant appeal being CRA 39 (DB) of 2022 is accordingly
disposed of.
51. In view of the disposal of the appeal, no interlocutory application
survives. Consequently, connected applications, if any, shall stand
dismissed.
52. Trial Court records along with a copy of this judgment and order
be sent/transmitted, at once, to the learned Trial Court for necessary
action.
53. Period of detention already undergone by the appellants shall be
set of against the substantive punishment in terms of the provisions
contained in Section 428 of the Code of Criminal Procedure.
54. Urgent Photostat certified copy of this order, if applied for, be
supplied to the parties on priority basis upon compliance of all
formalities.
DEBANGSU BASAK, J.:— I agree.
———
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