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TMI Blog2018 (4) TMI 1700X X X X Extracts X X X X X X X X Extracts X X X X ..... is 609.6 gms, is much higher than the commercial quantity. Thus we find that the ends of justice will be sub-served if we reduce the sentence of the accused appellant to 16 years rigorous imprisonment with fine of ₹ 2 lakhs and in default of payment of such fine the appellant shall undergo simple imprisonment for 6 months more. Appeal allowed - decided in favor of appellant. - CRA No. 661 of 2014 - - - Dated:- 17-4-2018 - Justice Nadira Patherya And Justice Amitabha Chatterjee For the Appellant : Mr. Kazi Safiulla, Mr. Nayaab Abul Fazal For the NCB : Mr. Ranjan Kumar Roy, Mr. Soumyabrata Ganguly ORDER Amitabha Chatterjee, J. :- This appeal is directed against the judgment and order of conviction dated 20.09.2014 and 22.09.2014 passed by the learned Additional District and Sessions Judge, 6th Court, Barasat, North 24 Parganas in NDPS Case No. N- 41/2009 convicting the appellant under Section 21(c) of the NDPS Act, 1985. By virtue of the impugned judgment, the appellant was convicted for commission of offence punishable under Section 21(c) of the NDPS Act, 1985. By virtue of the impugned judgment, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coloured nylon bazar bag, three transparent polythene packets containing blackish brown coloured powder substance were found and on opening the red and black coloured bazar bag, two transparent polythene packets containing blackish brown coloured substance and one packet of brown coloured powder substance were found. A little quantity of brown coloured powder substance (1 packet) as well as blackish brown coloured powder substance (5 packet) were taken out separately from each of the packets so recovered and tested with the field test kit, which responded positive to the test of Heroine/derivative of opium in all the cases. Thereafter, the weighment of the said six recovered polythene packets were taken individually and were found 8.175 kgs. (gross). It is further revealed from the complaint the said person also voluntarily handed over one mobile phone of Sony Ericsson having service connection no.9734630635. Then on the basis of reasonable belief that the said person violated the provision of Section 8 of the NDPS Act, NCB officials took two samples of 5 gram each from his bag and the same were sealed and labeled properly and the main bulk were also sealed in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of seized contraband % of Heroine (Diacetyl Morphine) 01. Sample mark with S-1 Heroine contents 6.1% 02. Sample mark with S-2 Heroine contents 5.4% 03. Sample mark with S-3 Heroine contents 5.8% 04. Sample mark with S-4 Heroine contents 4.9% 05. Sample mark with S-5 Heroine contents 10.4% 06. Sample mark with S-6 Heroine contents 26.8% On the basis of the aforesaid petition of complaint the case was initiated. On the basis of the materials on record charge under Section 21(c) of the NDPS Act was framed against the accused person on 08.09.2011 and the accused pleaded not guilty and claimed to be tried when the substance of acquisition was read over and explained to him. The learned court below passed the impugned ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. In such a case the provision under Section 244 and 246 of the Criminal Procedure Code are not applicable at all rather the provision of Section 36- A(1)(d) of the NDPS Act, 1985,comes into operation. On going through the aforesaid Section we find that Section 36-A(1)(d) provides that a special court may take cognizance of an offence under the Act without the accused being committed to it for trial. Regarding the power of the special court to take cognizance, it has to be noticed that a court of special judge is a court of original criminal jurisdiction. That being so, in order to make it functionally oriented some powers are conferred. Except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdictions not being hide found by the terminological status description or Magistrate or a Court of Session. It enjoys all powers which a court of original jurisdiction enjoys, save and except the ones specifically denied (1993 Criminal Law Journal, 442). In Section 36-A(1)(d), it is specifically provided that a special court may, upon a perusal of police report of the facts constituting an offence under this act or upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination in chief deposed to the effect that on 5th of April, 2009, acting on a specific information which was reduced by him in writing in presence of Sankar Das Sinha, I.O., NCB and Shri Tushar Kanti Das, Investigating Officer, NCB and after obtaining proper permission from competent authority on 05.04.2009 at about 19:30 hours, he along with Sankar Das Sinha I.O., Shri Tushar Kanti Biswas, Investigating Officer, Shri Debu Bandopadhayay, Investigating Officer and Asutosh Pahari, Intelligence Officer moved out from NCB, EZU; Kolkata along with others including one Lady Sepoy and reached at Chandpara at about 01:00 Hr. on 06.04.2009 and halted there. So, from the examination in chief of the aforesaid three witnesses namely PW-1, PW-2 and PW-5, it is evident that the information which was received by the NCB Officers was duly reduced in writing although there is a minor discrepancy in their version regarding the recording of the source information but the discrepancy is very minor as to the actual person who recorded the source information into writing but from the exhibit-2, it appears that the aforesaid document was produced from the office record duly certified by an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it from clear that the requirement in 42(2) will be attracted only to a case where the information relates to the availability of Narcotic Drugs and Psychiatric Substances in a building, conveyance or enclosed place as distinct from their availability in public place which is covered by a separate Section, namely Section 43. In Section 43 of the NDPS Act, there is no provision similar to that in Section 42 (2) of the NDPS Act which makes it obligatory for the officer who receives information to record the information and to send it to the official superior. The aforesaid provision makes it further clear that Section 42 (2) will be attracted only instead of the information relating to the availability of the contraband in a building conveyance or enclosed place . Considering the facts and circumstances of the present case we are inclined to hold that the mandatory provision of Section 42(1) and 42(2) of the NDPS Act has not been violated in such case in view of the fact that the search and seizure of the appellant was conducted in a public place. Learned Counsel for the appellant further argued that in Kishan chand Vs. State of Haryana, the Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore taking search upon him by NCB He also declined to it. Thereafter two independent witnesses were called from the on-lookers to witnesses search. They noticed one multi coloured bazaar bag was hanging on the right handle of the said motor cycle and the accused immediately voluntarily handed over the said bag to them. On opening of the bag the NCB Officer found three polythene packets containing brown coloured powder substance were kept inside the polythene packet. Then the officer asked him to open the dicky of the motor cycle, from there one red and black coloured nylon bazaar bag was found. On opening of the said bag it was found that another three polythene packets containing brown coloured powder substance were kept. From the evidence of the PW-11, Debu Bandopadhyay, it appears that the accused voluntarily handed over the bags to the NCB Officer and the same was searched in presence of two independent witnesses and the said contraband was sealed and labeled on the spot in presence of the said two independent witnesses. The PW-2, Tushar Kanti Biswas and PW-5, Laxmi Kanta Dutta also corroborated the evidence of the PW-1, Sankar Das Sinha. From the evidence of the prosecution wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y requirement of Section 50 of the Act was not complied with in this case, and, therefore, the conviction of the appellant is illegal. In our opinion, there is no substance in this contention because one kg. of opium was not found from the person of the appellant but it was found from a bag which was being carried by the appellant. Therefore, this cannot be said to be a case where on search of the person of the accused, a Narcotic Drugon Psychotropic Drug was found. In our opinion, the courts below have correctly held that the appellant is guilty of committing the said offence. The appeal is therefore dismissed. In Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 it was held by the Hon ble Apex Court of our country that Section 50 is applicable only where search of a person is involved and said Section is not applicable nor attracted where no search of a person is involved. Thus search and recovery from a bag, briefcase, container etc. does not come within the ambit of Section 50 of the Act. On careful appreciation of the evidence on record what we find is that in the instant case the appellant voluntarily handed over the bag which was hanging from the handle of the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused Rafiq Qureshi voluntarily handed over one multi-coloured nylon bazaar bag which was kept hanging from the right handle of the motor-cycle. He also voluntarily handed over one more bazaar bag having black and red colour which was kept inside the dickey of aforesaid motor-cycle. On opening the multi-coloured bazaar bag, three numbers of polythene packets having some blackish brown coloured powder substance inside was recovered. On opening the other black and red coloured bazaar bag, another 3 numbers of polythene packets having blackish brown coloured substance in 2 packets and 1 light brown coloured powder substance in the remaining packet were recovered. Therefore, total 6 packets in number were recovered from the bags. One of those six packets was containing light brown coloured powder substance. Then in presence of the two witnesses a small portion of the powder substance from each packet were taken out separately and were tested with the field drug detection kit. The test results were positive to the presence of heroine. The two samples of 05 gms. each were taken from each packet, in total 12 numbers of samples were drawn up and samples were kept separately in a small ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in (2011) 12 SCC 298. As such the consideration of the aforesaid alleged statements of confession recorded by the Police Officer under Section 67 of the NDPS Act, cannot be used in this case which is prohibited under Section 25 of the Evidence Act and the same will be grossly illegal and unjust if this appellant is convicted by using the same against him as a legal evidence. Now, from the evidence of the PW1, Sankar Das Sinha as well as the other PWs it appears that after search and seizure, the accused was served a notice under section 67 of the NDPS Act and he had appeared at the office of NCB at Kolkata and made his voluntary statement. The said notice and the statement were proved by the PW1 Sankar Das Sinha those were marked as Exhibit-1 and 4 respectively. The PW1 deposed to the effect that the accused wrote down first and second page of the said statement and then as per his dictation the PW1 wrote down the remaining part. After the writing of the said statement was over it was read over and explained to the accused and having been satisfied the accused had signed in the said statement. The wife of the accused who happens to be the DW-1 in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant further submitted that as per the mandate of sub-Section (2) of Section 52-A of the said Act, an inventory should be prepared by the seizing officer in respect of the suspected Narcotic Drugs seized by him in presence of a Magistrate and certified by him in respect of their quality quantity and photographs etc. of the seized Articles and the samples is to be taken from the same in presence of the Magistrate certified by him and said inventory shall be the primary evidence of the case under Sub- Section (4) of 52A of the NDPS Act. In absence of such inventory certified by the Magistrate which is the primary evidence of the case, the conviction of any accused in such cases is legally barred and absolutely illegal. In support of such contention the learned counsel for the advocate referred two Division Bench judgments, one in the case of Munna Nai Vs. the State reported in 1997 CRI. L. J. 4553 and another in Makhan Barman Vs. State of West Bengal reported in (2014) 2 C Cr.L.R. (Cal) 288 as well as the judgment of the Hon ble Supreme Court in the case of Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417. It is contended by the Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arvarti Vs. State of Madhya Pradesh reported in JT 2006 (12) SC 416. In the case of Richhpal Vs. State (Delhi Administration) Reported in 1989 Criminal Law Journal (NOC) 51 while examining the various provisions of the NDPS Act, particularly Sections 41 to 55, the court after referring to various judgments of the Supreme Court has laid down that the court must consider the facts of each case in order to determine whether failure of prosecution to comply with any particular provision of the NDPS Act has the effect of creating any doubt regarding the prosecution case or not. It was held that there cannot be any mechanical application of law to the facts of the case and the statutory provisions introduced in the NDPS Act are not to be obviously ignored by the courts or by the prosecution but these provisions have to be kept in view only to see whether the prosecution case set up is truthful or not. In the case of Brijesh Kumar Gupta Vs. Narcotics Control Bureau reported in 2014 CRI. L. J. 4203. The Delhi High Court has observed that presuming public witness was not present when the seizure was made, it would not render the seizure invalid. However, in the present case, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for determining whether the accused was in possession of contraband which was a small quantity or commercial quantity as defined under the Act. The punishment would therefore be commensurate with the quantity seized. The learned counsel for the NCB on the other hand argued that after the aforesaid decision the notification was issued by government of India stipulating that the entire weight of the material seized must be considered while ascertaining whether the contraband was more or less than the commercial quantity. However, this notification would not apply to the present case as it does not specify that it would operate retrospectively or in pending cases. Considering the rival submission of the learned counsel for both the sides, it is palpably clear that the judgment in the case of E. Micheal Raj which postulates that only the exact content with the narcotic Drug or Psychotropic substance in a seized quantity of material must be taken into account for imposing punishment. And in the instant case from the petition of complaint itself it is found that the actual quantity of heroin recovered from the accused person was 609.60 gm. which is much above the commercial quantit ..... 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