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Habib Mustafa Ahmed @ Fatik v/s State of West Bengal & Others


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Criminal Appeal No. 286 & 291 of 2016

    Decided On, 14 March 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JOYMALYA BAGCHI & THE HONOURABLE MR. JUSTICE MANOJIT MANDAL

    For the Appearing Parties: Manojit Singh, Atarul Hoque Molla, Satadru Lahiri, Sanjoy Bardhan, Palash Chandra Majhi, Pronoti Goswami, Advocates.



Judgment Text

Joymalya Bagchi, J.

1. These appeals are directed against the judgment and order dated 26.02.2016 and 29.02.2016 passed by the learned Additional Sessions Judge-cum-Judge, Special Court under the N. D. P. S. Act, 6th Court, Barasat, North 24- Paraganas in NDPS Case No. N-90/2009 convicting the appellants for commission of offence punishable under Section 22(C) of the N. D. P. S. Act and sentencing them to suffer rigorous imprisonment for ten years each and to pay fine of Rs.1,00,000/- each, in default, to suffer simple imprisonment for five months more has been assailed.

2. Prosecution case as alleged against the appellants is to the effect that on specific intelligence input which was reduced in writing and intimated to a superior officer and after obtaining necessary movement order, a batch of NCB officers attached to NCB, EZU, Kolkata held ambush on 30.10.2009 at about 9.00 hours at Barrackpore-Talikhola, on Chakdha Bongaon main road within P.S. Gopalnagar, District 24-Parganas, North. At 13.45 hours, a person got down from a bus which was going towards Bongaon and stood near Lokenath Hardware and gift centre shop waiting for someone. Few minutes later, another person arrived in a motor cycle bearing registration No.WB-20J-6484 from Bongaon side. The person who had alighted from the bus took out a transparent polythene packet containing white coloured powder like substance from a black coloured hand bag and handed it over to the motor cyclist who kept the packet in a multicoloured nylon bag. The NCB officials encircled the said persons. On query the person who had alighted disclosed his name as Habib Mustafa Ahmed @ Fatik and motor cyclist disclosed his name as Bapi Das @ Amal Das. NCB officers intimated them that they had information that they were in possession of Alprazolam, a psychotropic substance. On further query, Habib Mustafa Ahmed @ Fatik handed over the black hand bag while Bapi Das handed over the multicoloured nylon bag to the NCB officials. The officers called two independent witnesses from onlookers to witness the search. One transparent polythene packet was recovered from both the bags respectively containing white powder like substance. Both of them also handed over their mobile phones and cash of Rs.10,000/- to the officers. The packets were weighed separately and were found to be 500 grams each. Small quantity from the packets was tested with the help of Field Drug Detection Kit and tested positive to Alprazolam, a psychotropic substance. On interrogation at the spot, the appellants admitted their guilt. The white powder like substance believed to Alprazolam and two mobile phones and cash of Rs.10,000/- being sale proceeds along with the motor cycle were seized. Two samples in duplicate of 5 gms. each were drawn separately from both the packets and kept in sealed polythene bags. The remainder of the contraband were also separately sealed and kept in two envelopes. Other items were also kept in the separate envelopes, sealed and labelled. All the sealed packets were signed by the witnesses and the appellants and also the seizing officers. Notices were issued upon Mustafa Ahmed and Bapi Das under Section 67 of the NDPS Act. They accompanied the officials to the NCB office where they tendered their voluntary statement before the said officials. The follow up action was taken against co-accused namely, Sanjit Biswas whose name had transpired from the voluntary statement of the appellants. On 10.12.2009 chemical analysis report showing presence of Alprazolam in both the samples were received and prosecution was launched against the appellants and one Sanjit Biswas. As Sanjit Biswas could not be apprehended, he was declared a proclaimed offender and the case was filed against him. Charge under Section 22(c) of the NDPS Act was framed against the appellants. In course of trial, prosecution examined six witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the judgment and order dated 26.02.2016 and 29.02.2016 convicted and sentenced the appellants, as aforesaid. Hence, the present appeals.

3. Mr. Manjit Singh, learned Advocate and Mr. Satadru Lahiri, learned Advocate appearing for the appellants argued that the prosecution has not been able to prove its case beyond reasonable doubt. Evidence of official witnesses are at variance to one another with regard to the place where the alleged contraband was seized, sealed and labelled. While it is the prosecution case that the contraband and the samples were seized, sealed and labelled at the spot by Debu Banerjee, P.W.3, there is no evidence to show that the latter was present at the spot. Hence, search, seizure and labelling of the contraband are under severe doubt. It is further argued that there is no reference to drawing of samples from the contraband at the spot in the seizure list or in the weighment chart, Exts.20 and 21 prepared in this case. Custody of the samples prior to despatch for chemical examination has not been proved. There is no signature of P.W.6 in the go-down register and P.W.4 claimed that the seizing officer had kept the samples in his custody. Difference in weight of the samples are noticed from the test report exhibited in the case throws doubt to the authenticity of the prosecution case. Statements under Section 67 of the N. D. P. S. Act were recorded after the arrest of the appellants and they had retracted from such statements during trial. Statement of Bapi Das was recorded by Debu Banerjee, who has not been examined in the instant case, while there is controversy with regard to the manner in which the statement of Habib Mustafa was recorded. Independent witnesses were not examined and in view of the contradictions and/or infirmities in the version of the official witnesses, the appellants are entitled to an order of acquittal. They relied on various authorities in support of their contentions.

4. On the other hand, learned Advocate appearing for the NCB argued that the evidence of the prosecution witnesses have established the case beyond doubt. Minor variations in their depositions do not detract from the inherent truthfulness of the prosecution case. Slight increase in weight of the samples as appearing from the test report may be for various reasons like absorption of moisture or faulty weighment and cannot cast a shadow or the prosecution case as there is no tampering of the seals affixed on the samples. Godown register has been exhibited showing entries with regard to the seized contraband and the samples clearly establishing the chain of custody between seizure of the contraband and its examination by the Chemical Examiner. Summons were issued to the independent witnesses but they did not turn up. Hence, the prosecution case ought not to be thrown out on the score of non-examination of the independent witnesses. Statements under Section 67 of the N. D. P. S. Act were not retracted at the earliest opportunity and belated retraction in the course of trial ought not be taken cognizance of.

5. Let me test the rival submissions of the parties in the light of the evidence on record.

6. P.W.2 (Laxmi Kanta Dutta), P.W. 4 (Sankar Das Sinha), P.W.5 (Ashutosh Pahari) and P.W. 6 (Santosh Kumar Chowdhury) were members of the raiding party.

7. P.W.6 deposed on 30.10.2009 on the basis of specific information he along with other officers of NCB conducted raid. They left the office at 9.00 A.M. and lay ambush at Talikhola under Gopalnagar P.S. At around 13.45 hours a person alighted from a bus proceeding towards Bongaon and stood at the spot waiting for someone. After sometime a person came in a motor cycle bearing registration No.WB-20J-6484 from Bongaon side. The person who got down from the bus handed over a polythene packet from his black handbag to the motor cyclist who kept the packet in his multi coloured nylon bazar bag. They surrounded the persons who divulged their identity as Habib Mustafa Ahmed @ Fatik and Bapi Das @ Amal Das. Upon search, two transparent polythene packets containing white powder like substance were recovered from the respective bags of the said persons. Mobile phones and cash of Rs.10,000/- in Indian currency were also recovered. Small quantity of the powder tested with the help of Field Drug Detection Kit showed the presence of Alprazolam, a psychotropic substance in the contraband. The packets were separately weighed and were found to be 500 grams each. Two samples in duplicate of 5 grams each were drawn from the packets and kept in separate polythene packets. The four packets were sealed, lebelled and signed by independent witnesses as well as the accused persons. The remainder was also kept in a separate packet, sealed, labelled and signed. Search-cum-seizure list was prepared by him at the spot, Ext.20. He also prepared the weighment chart, Ext.21. He proved the movement register with regard to the raid, Ext.23. Notices were issued upon the appellants under Section 67 of the N. D. P. S. Act and they accompanied the raiding party to the NCB office at Kolkata. Statements of the appellants were recorded in the presence of NCB officers. The seized articles were kept in the malkhana register. He proved his signature in the register, Ext.8/1. After recording their statements, the appellants were arrested and memos of arrest were proved, Ext.22. In the course of investigation, samples were sent to the Customs House, Chemical Laboratory for chemical examination along with the seal, Ext.19/1.

8. Evidence of P.W.6 has been corroborated by the other officers who were present at the spot viz., P.Ws.2, 4 and 5. Relying on the evidence of P.W.5 who deposed that the writings on the labels affixed to the samples including the case number were by the hand of Debu Banerjee, P.W.3, it has been strenuously argued that the search, seizure and labelling of the articles had not been done at the spot.

9. In this regard, defence also made reference to the evidence of Debu Banerjee, P.W.3 who deposed that he was in the office of NCB in the evening of 30.10.2009 when two persons were brought to the office by the NCB officials. 6-7 sealed packets were also brought to the office. On perusal of the labels on the packets, he came to know that the packets contained Alprazolam of 500 grams each.

10. In the light of the aforesaid evidence on record, it is contended that the search and seizure of the articles have not been made at the spot as claimed by the prosecution. No doubt that there is some contradiction in the evidence of Debu Banerjee, P.W.3 and the other prosecution witnesses with regard to the writings on the labels of the seized articles. While other prosecution witnesses claimed that P.W.3 wrote the entries on the samples in his own hand writing at the spot, the said witnesses does not appear to be present at the spot. P.W. 3 claimed he was at the office when the accused persons were brought along with the seized articles and he came to know that the packets contained Alprazolam. Although there is some confusion as to who wrote the entries on the labels of the seized articles as well as samples, the evidence of the prosecution witnesses with regard to seizure of the contraband and drawing of samples therefrom at the spot remains unshaken. Oral evidence of the witnesses are corroborated by the search and seizure list (Ext.20) prepared by P.W. 6. Evidence on record particularly that of P.Ws.2, 4 and 6 unequivocally establish that the appellants were apprehended at the spot and two polythene packets containing white powder like substance weighing 500 grams each were recovered from them. The said articles were kept in separate polythene packets at the spot and sealed. Samples in duplicate of 5 grams each were drawn from each of the packets. They were kept in separate polythene packets and were sealed. This portion of the prosecution case is wholly established through the evidence of P.Ws.2, 4 and 6 and the dichotomy with regard to the person who made the entries on the labels of the said samples, in my considered opinion, does not affect the sanctity of search and seizure with regard to the contraband from the possession of the appellants.

11. It is nobody's case that the seals of the samples were tampered with after reaching the NCB office. It is possible after signatures of the independent witnesses and the accused persons had been obtained on the samples at the spot, further entries with regard to the case number and other particulars were made by P.W.3 on the labels at the office. Such exercise, in my opinion, does not detract from the recovery of the contraband articles from the appellants as claimed by the prosecution witnesses.

12. I am also unimpressed by the submissions made by the learned Counsel appearing for the appellants that Annexure-1 to the seizure list (Ext.20) and the weighment chart (Ext.21) prepared by P.W.6 do not contain reference of the samples drawn from the contraband recovered from the appellants. Seizure list, Ext.20 must be read as a whole. There is clear reference to drawing of samples in duplicate from the contraband recovered from each of the appellants in the body of the seizure list and, therefore, failure to enumerate such fact in Annexure-1 thereof, in my opinion, does not affect the truthfulness of the prosecution case.

13. Hence, I am of the opinion that the prosecution has been able to establish the recovery of white powder like substance weighing 500 grams each from the possession of the appellants at the spot beyond reasonable doubt.

14. The next challenge thrown to the prosecution case relates to the custody of the contraband articles.

15. It has been argued that there is no signature of P.W 6 in the godown register. P.W 4 claimed that the samples were kept by the seizing officer and not in malkhana of the office. On this score too, I am not persuaded by the submissions of the appellants. Evidence of witnesses particularly that of P.Ws 2 and 6 clearly establish that the contraband articles after being brought to the NCB office were kept in the godown/ malkhana and necessary entries were made in the godown register in that regard. P.W 2 made entries at pages 93 and 94 of the godwon register as godown in charge. Certified true copies of the said entries were proved as exhibit 8. P.W 6 corroborated the evidence of P.W 2 and deposed that he deposited the contraband and other articles in the malkhana and signed in the malkhana register. In the face of the aforesaid oral evidence which is corroborated by contemporaneous entries in the godown register maintained in the ordinary course of official business, I am of the view, chain of custody of the contraband from the time of seizure till its examination by chemical examiner at customs house had been duly established. Evidence of P.W. 4 must be read as a whole and not out of context. In cross examination, he deposed that he was unaware where the articles were kept which was in the knowledge of the seizing officer. Hence, P.W 4 cannot be treated as competent witness with regard to the custody of the articles after its seizure which has been wholly established through the deposition of P.Ws 2 and 6.

16. Chemical examiner's report has been proved in the instant case without objection as exhibit 19. It has been argued that there are some variations in the weight of the samples as reflected in the test report. I have examined the report in the light of the aforesaid objection. Variations in the weight of samples are slight. While in one sample the weight is mentioned as 6.3 gms. in stead of 5 gms. and in another gross weight is mentioned as 5.18 gms. in stead of 5 gms. The seals on the samples are found intact and matched with the seals which was forwarded by P.W 6 to the chemical examiner.

17. In the light of the aforesaid facts and as the variation in the weight of the samples are slight and may be due to myriad reasons like absorption of moisture or inaccuracies in weighment, I am of the opinion that sanctity in the preservation of samples has not been adversely affected so as to render the opinion of the chemical examiner unreliable.

18. I am, however, in agreement with the learned counsel for the appellants that it may be unsafe to rely on the statements of the appellants under section 67 of the NDPS Act. Evidence has come on record that the appellants were detained at the spot and were in the custody of the NCB officials at the time when he made the said statements. Formal arrest of the appellants may have been shown at a later point of time, but apprehension of the appellants at the spot and their detention in the custody of NCB officials are undeniable. Hence, the appellants were not free agents at the time when the statements were purportedly recorded. P.W 2 claimed that the statement of Habib Mustafa Ahmed @ Fatik was recorded by the appellant himself in his presence. On the other hand, P.W 6 deposed such statement was recorded by P.W. 2. P.W. 5 claimed that the statement of Bapi Das was recorded by Debu Bhattacharya has not been examined during trial to prove the circumstances in which such statement was recorded. Appellants have retracted their statements during their examination under sections 313 Cr.P.C. and they claimed that they were physically assaulted and coerced to make such statements. In view of the aforesaid contradictions and/or non-examination of Debu Bhattacharya the circumstances in which the so-called voluntary statements were recorded have not been established. Undeniably, appellants were not were free agents at the time when such statements were recorded and had retracted their statements during trial alleging physical assault and coercion. Hence, I am of the opinion that it would be unsafe to hold that the said statements of the appellants were voluntary in nature and had not been procured by way of dictation or coercion as alleged.

19. Finally, it has been argued that the prosecution case ought not to be believed as independent witnesses have not been examined.

20. It is trite law, in the event the evidence of the official witnesses are reliable, non-examination of independent witnesses cannot be the sole ground for rejecting the prosecution case. Reference in this regard may be made to Sumit Tomar Vs. State of Punjab, (2013) 1 SCC 395 (wherein it was held, when independent witnesses did not appear in spite of issuance of summons, no adverse inference can be drawn against the prosecution case), Kulwinder Singh Vs. State of Punjab, (2015) 6 SCC 674 (where the Court opined non-examination of independent witnesses who had been won over would not affect the prosecution case) and Ram Swaroop Vs. State (Govt. Of NCT of Delh

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i), (2013) 14 SCC 235 and Kashmiri Lal Vs. State of Haryana, (2013) 6 SCC 595 (where the Court held, non-examination of independent witnesses was not always fatal). 21. In the light of the analysis of the evidence of the official witnesses I am of the opinion that the prosecution case has been established beyond reasonable doubt. Minor variations with regard to the writings on the label of the samples, in the factual backdrop of the case, does not affect the truthfulness of the prosecution case regarding recovery of the contraband articles from the appellants. Present case is not one where the independent witness has not supported the prosecution case, on the other hand summons were issued to the independent witnesses but their attendance could not be secured in the course of trial. In the aforesaid factual matrix, I am of the opinion no adverse inference can be drawn against the prosecution case for non-examination of independent witnesses. 22. Authorities relied upon on behalf of the appellants are inapposite in Krishan Chand vs. State of Himachal Pradesh, (2018) 1 SCC 222. In the said report versions of the official witnesses were found to be highly doubtful. Hence, the prosecution case was not believed. As discussed above, in the present case I find the search and seizure of narcotic substance from the appellants was fully established through the evidence of official witnesses particularly P.W.s 2, 4 and 6. Hence, the aforesaid report is inapplicable to this case. 23. In Naresh Kumar vs. State of Himachal Pradesh, (2017) 8 Scale 324 the independent witnesses had not support the prosecution case at all. In the present case efforts were made to summon the independent witness but their attendance could not be secured. Evidence on record of official witnesses clearly proves the case beyond reasonable doubt. Hence, the aforesaid authority is distinguishable on facts. 24. In the light of the aforesaid discussion, I uphold the conviction and sentence recorded against the appellants. 25. The appeal is, accordingly, dismissed.
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