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TMI Blog2019 (12) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ee) years and fine of Rs. 10,000/- in default Simple Imprisonment for 3 (three) months. The Ld. Appellate Court on re-appreciation of evidence concurred with the finding of the Ld. Magistrate and affirmed the sentence passed by the said Court. The genesis of the case relates to a search conducted by the Officers of Directorate of Revenue Intelligence (DRI) at the residential premises of the present petitioner/Quasim Ali at 16, Ratu Sarkar Lane, Calcutta- 700073 on the basis of information received by the office of the DRI, Calcutta. On search being conducted in presence of two independent witnesses, 3 pieces of tiger skin, 13.4 kgs. of elephant tusks, 1 piece of baby rhino horn, 290 pieces of tiger nail total worth approximately of Rs. 4, 44, 550/- were recovered. Pursuant to such recovery it was alleged by the officer of the DRI that the present petitioner failed to produce any valid documents for legal possession/acquisition/harboring of the goods so recovered. According to the DRI the goods so seized were wildlife materials under the provisions of the 1972 Act. The authorities further alleged that the present petitioner admitted that the goods were attempted to be taken out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room at the roof top. During search the officers of DRI recovered 3 pieces of tiger skin wrapped in one gunny bag, 6 elephant tusks, 290 tiger nails and 1 rhino horn wrapped in one gunny bag. The complainant alleges that tusks of elephant and rhino are included in Schedule-I of the 1972 Act vide Sl Nos. 39, 30, 12B of Part I respectively. iii) The accused person could not produce any document/permit/certificate in support of the aforesaid goods being legally procured and also could not provide any satisfactory explanation regarding the procurement, possession, control and business with such material parts. The animals and other articles recovered during the search were duly examined, described, marked and sealed after taking measurements and weights wherever possible. The copy of the seizure list was handed over to the accused. iv) On 5-8-1995 the accused was summoned at about 17:45 hours under Section 108 of the Customs Act to appear and his statement was recorded in response to the enquires which were made in presence of senior intelligence officers. The accused was thereafter produced before the Ld. CMM on 6-8-1995 and he was remanded to jail custody. The case papers were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MM was pleased to take cognizance of the offence and transfer the case to the Ld. Metropolitan Magistrate, 11th Court, Calcutta. After the direction being passed the prosecution supplied copy of the complaint, which was received by the petitioner as reflected from the order dated 15-7-1996. The prosecution in order to prove its charge adduced the evidence of PW1 Ashim Kumar Saha, Senior Intelligence Officer, DRI; PW2 Anup Raj Damta, Intelligence Officer, DRI; PW3 Dilip Chattopadhyay, Senior Intelligence Officer, DRI; PW4 Sajal Baran Das, complainant; and PW5 Dr. Sujit Chakraborty, Joint Director, Zoological Survey of India and also relied upon 6 documents and 7 Material Exhibits. After the examination of evidence before charge of the 5 prosecution witnesses were over, the Ld. Trial Court was pleased to frame charge against the present petitioner under Sections 40(2), 49, 9 and 43 of the 1972 Act which is punishable under Section 51(1A) of the 1972 Act. The defence was thereafter afforded opportunity for cross-examination and on completion of the cross-examination of all the 5 witnesses so relied upon by the prosecution, the present petitioner was examined under Section 313 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused on the 6 pieces of elephant tusks, on the 3 pieces of tiger skin, on the baby rhino horn which was marked as MAT Ext. I, II & III respectively. The witness identified the 290 pieces of tiger nails which was marked as MAT Ext. IV. The witness identified the signature of the accused on 45 plastic eye balls which was marked as MAT Ext. V and the weighing scale machine with 12 pieces of weights which was marked as Ext.6 collectively. The witness identified the brass seal which was seized from the accused and marked as Ext.8. The witness only narrated the recording of the statement of the accused under Section 108 of the Customs Act by PW2. PW2, Anup Raj Vitor Damta deposed that on the direction of PW1 he recorded the statement of the accused. The witness identified the seized items which were marked as MAT Exhibits I to VII. The witness deposed that he recorded the statement of the accused in his narration and the accused signed the same. The said statement of the accused was marked as Ext.2, the signature of the witness and the accused was marked as Ext. 2/1 and 2/2. All these documents were marked as Exhibits after objection being given on behalf of the accused. The witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 43 of the 1972 Act and the Ld. Trial Court on appreciation of the evidence found the accused to be not guilty of the charges under Sections 9, 43 and 49 of the 1972 Act. However, the Ld. Trial Court was pleased to hold the petitioner guilty under Section 40(2) of the 1972 Act read with Section 51(1-A) of the 1972 Act. According to the Ld. Advocate Section 51A is applicable only in the case of offence under Chapter VA the punishment under Section 40(2) of the 1972 Act do not come under Chapter VA but under Chapter V of the 1972 Act and as such the sentence passed by the Ld. Trial Court and affirmed by the Ld. Appellate Court is not sustainable. In order to substantiate his submission the Ld. Advocate for the petitioner relied upon State of Punjab vs. Balbir Singh, 1994 SCC (Cri) 634; Noor Aga vs. State of Punjab & Anr., (2008) 16 SCC 417; and The State of Gujarat vs. Anwar Osman Sumbhaniya & Ors., MANU/SC/0286/2019. Mrs. De Ghosh, Ld. Advocate appearing for the State submitted that the factum of seizure in respect of the elephant tusks, tiger skins, rhino horn, tiger nails and plastic eye balls are proved beyond any reasonable doubt as the seizure lists support the same. The st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case." In Noor Aga (supra) relied upon by the Ld. Advocate for the petitioner in paragraph 66, wherein the Hon'ble Apex Court observed as follows:- "66. We may, at the outset, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act. It refers to leading of evidence, production of document or any other thing in an enquiry in connection with smuggling of goods. Every proceeding in terms of sub-section (4) of Section 108 would be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. The enquiry contemplated under Section 108 is for the purpose of 1962 Act and not for the purpose of convicting an accused under any other statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery had no evidentiary value. While dealing with the order passed by the High Court, the Hon'ble Supreme Court observed that the order of police remand is an interlocutory order and the revisional application against the same is not maintainable. Further, it has been categorically held that what was to be decided on a full-fledged trial, the High Court merely on the pleadings of the parties gave its finding holding the police remand and consequent confession and the alleged recovery had no evidentially value to be illegal. In this case, the Hon'ble Apex Court was dealing with completely different set of facts and circumstances. The present case is one, where trial has been concluded, a finding of fact is there and the issue is whether the materials placed before the Court would be fit and proper for arriving at a finding of guilt in respect of the present petitioner. I have taken into account the submissions advanced by both the parties, the deposition of the 5 witnesses relied upon by the prosecution, the documents so relied upon by the prosecution which were admitted in evidence as also the findings of the Ld. Courts below. While assessing the evidence of the prosecution w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties which can be used in a prosecution under the Customs Act and using the same as a foundation for an offence under the 1972 Act is against the settled principles of law. To that extent the authorities cited by Mr. Moitro, Ld. Senior Advocate for the petitioner are aptly applicable in the present case. [Noor Aga vs. State of Punjab & Anr., (2008) 16 SCC 417; The State of Gujarat vs. Anwar Osman Sumbhaniya & Ors., MANU/SC/0286/2019] Having due regard to the submission advanced by the State, I am constrained to hold that on the evidence so relied upon by the prosecution it is not a case of mere irregularity but raises a grave suspicion regarding the manner and mode of search and seizure alleged to be conducted at the said premises and it would not be fit and proper to arrive at a finding of guilt on the basis of the search and seizure. Accordingly, the judgment and order of conviction and sentence passed by the Ld. Metropolitan Magistrate, 11th Court, Calcutta in case No. 718 of 1996 and affirmed by the Ld. Additional District & Sessions Judge, 9th Fast Track Court, Bichar Bhavan, Calcutta in Criminal Appeal No. 31 of 2010 are set aside. The petitioner is acquitted from the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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