Crl. A. (J) No. 68 of 2015. Case: Goutam Dutta Vs The State of Tripura. Tripura High Court
|Crl. A. (J) No. 68 of 2015
|For Appellant: P.K. Biswas, Sr. Advocate, J. Bhattacharjee, P. Majumder and P. Mog, Advocates and For Respondents: R.C. Debnath, Addl. P.P.
|T. Vaiphei, C.J. and S.C. Das, J.
|Code of Criminal Procedure, 1973 (CrPC) - Sections 313, 374; Narcotic Drugs And Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(C), 41, 41(2), 42, 42(1), 42(2), 43, 57
|December 07, 2016
|Tripura High Court
S.C. Das, J., (At Agartala)
This criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment and order of conviction and sentence dated 02.12.2015 passed by the learned Special Judge, Court No. 1, Agartala, West Tripura in case No. Special (NDPS) 15 of 2013, whereunder the learned Special Judge found the accused appellant, Goutam Dutta guilty of committing offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short NDPS Act) and sentenced him to suffer R.I. for ten years and to pay a fine of ` 1,00,000/- (rupees one lakh), in default of payment, to suffer R.I. for further four months.
Heard learned senior counsel, Mr. P.K. Biswas, assisted by learned counsel, Mr. P. Majumder for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent.
Prosecution case, in short, is that on 23.11.2013 at about 1100 hrs., S.I. Debabrata Biswas of Bishalgarh Police Station(PW1) received an information over telephone from Inspector Navin Choudhury of "G" Branch, B.S.F., Gakulnagar(PW8) that one Maruti OMNI vehicle, bearing No. TR-01-AA-0553 loaded with huge quantity of ganja (cannabis) was moving from Melaghar side towards Agartala. He entered the information in Bishalgarh P.S. G.D.E. No. 1078 dated 23.11.2013 and informed the Sub-Divisional Police Officer(SDPO, for short), Bishalgarh verbally over telephone and thereafter S.I. Debabrata Biswas along with Ms. Sarmistha Chakraborty, SDPO, Bishalgarh(PW2) and Inspector Navin Choudhury of BSF with other security personnel went to the approach road near Rabindra Nath Tagore College at Gakulnagar on national highway and kept on waiting there. At about 1240 hrs., they found one Maruti OMNI vehicle, bearing No. TR-01-AA-0553 approaching towards Agartala with abnormal high speed and they gave signal to stop the vehicle but the vehicle tried to escape and dashed to the roadside wall and it was captured by S.I. Debabrata Biswas, SDPO, Bishalgarh and Inspector, Navin Choudhury and other security staffs. In the meantime, local people also gathered there. There were two persons in the vehicle. Out of them one Goutam Dutta was the driver of the vehicle and another person Tapas Saha(owner of the vehicle) was also in the vehicle and they disclosed their names and identities. On search of the vehicle 9(nine) plastic bags of dry ganja was recovered which was weighted and found to be 95 kg. in total and thereafter S.I. Debabrata Biswas seized the same by preparing a seizure list in presence of PWs 2 and 8 and other witnesses and arrested accused Goutam Dutta and Tapas Saha and thereafter proceeded to the P.S.
S.I. Debabrata Biswas lodged suo motu FIR before O/C, Bishalgarh P.S. and accordingly Bishalgarh P.S. case No. 245 of 2013 under Section 20(b)(ii)(C) of NDPS Act was registered against arrested accused Goutam Dutta and Tapas Saha and investigation was entrusted to S.I. Prasanta Kr. Dey.
During investigation samples were collected from the seized ganja, inventory was prepared in presence of the Magistrate and the samples were sent to the State Forensic Science Laboratory for scientific examination and report and the report was collected. Material witnesses were examined and thereafter chargesheet was filed against both the accused.
Learned Special Judge, in course of trial on 26.03.2014 framed charges against both the accused for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act to which they pleaded not guilty and claimed to be tried.
In course of trial, prosecution examined 11(eleven) witnesses, namely:
"PW1 Sri Debabrata Biswas
PW2 Miss Sarmistha Chakraborty
PW3 Sri Bishnu Rabi Das
PW4 Sri Subrata Debbarma
PW5 Sri Pradip Kumar Ghosh
PW6 Sri Ashish Chowdhury
PW7 Sri Supriya Chakraborty
PW8 SI Navin Choudhury
PW9 Sri Monoranjan Debbarma
PW10 Sri Suman Kumar Chakraborty
PW11 Sri Prasanta Kumar Dey."
Prosecution also proved the following documents and materials, namely-
Exbt.1, 1/1, 1/2, 1/3 and 1/4 -Seizure list of the plastic bags containing ganja and signatures of PWs 1, 2, 3 and 8 therein respectively.
Exbt.2, 2/1 and 2/2 -Complaint and signatures of PW1 and S.I. Monorajan Debbarma therein.
Exbt.3 and 3/1-Copy of letter of PW1 addressed to the S.P., Sepahijala District on completion of operation and signature of P.W.1 therein.
Exbt.4 and 4/1-Copy of letter of PW2 addressed to the S.P., Sepahijala District disclosing the secret information received from PW1 and signature of PW2 therein.
Exbt.5/1, 5 and 5/2-Seizure list of the documents relating to the vehicle and signatures of PW6 and 11 therein.
Exbt.6 and 6/1-FIR form and signature of S.I. Monoranjan Debbarma therein.
Exbt.7 and 7/1-Report of SFSL and signature of PW10 therein.
Exbt.8 and 8/1 series-Map and index of the place of occurrence(for short, PO) and signature of PW11 therein.
Exbt.9 and 9/1-The inventory and signature of PW1 therein.
Exbt.10 and 10/1-List of sample drawn and signature of P.W.11 therein.
Exbt.11 series-Extract copy of GD Entry Nos. 1078, 1079 and 1086.
Seized nine bags of ganga, the only material object marked as Exbt.M.O.1 series."
After closure of the prosecution evidence, accused persons were examined under Section 313 of CrPC and in their turn they examined one witness, namely DW1 Arun Biswas.
Defence case so far ascertained from the trend of cross-examination of the prosecution witnesses, the statement of the accused recorded under Section 313 of CrPC and that of the deposition of DW1, is that of denial of the prosecution case. It is the case of the defence that the vehicle was stopped on the road for the purpose of checking documents and at that time there was an altercation between the accused persons and the police personnel, and thereafter the accused persons have been falsely implicated in the present case.
Accused Tapas Saha absented from the Court when the case was ready for judgment and so the learned Special Judge passed the impugned judgment on 02.12.2015 in respect of accused-appellant Goutam Dutta.
It is emphatically argued by learned senior counsel, Mr. Biswas that the entire prosecution case has been vitiated for non-compliance of Section 42(2) of the NDPS Act and that the learned Special Judge wrongly arrived at a finding of conviction of the accused. The order of sentence passed, therefore, is liable to be set aside. In support of his submission he referred the decisions of the Apex Court in the cases of State of Rajasthan v. Jag Raj Singh alias Hansa reported in AIR 2016 SC 3041, Sukhdev Singh v. State of Haryana reported in (2013) 2 SCC 212 and Kishan Chand v. State of Haryana reported in (2013) 2 SCC 502.
Per contra, learned Addl. P.P., Mr. Debnath has submitted that it is to be presumed that Section 42(2) was complied with since SDPO was informed orally over telephone by PW1 immediately after receipt of information and SDPO herself was present at the time of detention of the vehicle and the search and seizure. Inspector of BSF(PW8) was also present on the spot and so the trial Court rightly put implicit reliance on the statement of those witnesses.
Learned Addl. P.P. failed to refer any decision in support of his contention that oral information given to SDPO, the superior authority of S.I. of Police was enough to meet the requirement of Section 42(2) of the NDPS Act.
The Narcotic Drugs and Psychotropic Substances Act, 1985 is a special law enacted by the Parliament with an object of controlling and regulating the operations relating to narcotic drugs and psychotropic substances. The Legislature considering the disastrous effect of drug trafficking and drug abuse on the economic health of the nation on the one hand, and on the physical and psychological health of the vulnerable citizens, particularly, the youth on the other hand, which has been considered as a great concern for the entire nation has made the stringent law to deal with the perpetrator of the offence. The effective prevention and control of drug trafficking and drug abuse has, thus, become a major challenge to the law enforcing agencies of the country. Successful investigation and prosecution of cases and punishment of the offender is one of the surest ways to prevent and control the drug menace. The Act has prescribes stringent punishment of the offenders and also prescribes special procedure to be followed in respect of arrest, search, seizure, etc. The Act also prescribes procedure regarding collection of samples, deposit of the articles as well as disposal of the same. It also prescribes the application of the provision of the Criminal Procedure Code to a limited extent as prescribed in the Act. The Act further prescribes certain provisions as a safeguard so that no innocent is harassed unnecessarily and those are most mandatory provisions. Non-compliance of such prescribed provisions by the investigating agency is fatal for the prosecution. No doubt, such non-compliance will definitely facilitate a wrongdoer to escape from punishment.
Let us now see whether Section 42(2) has been complied or not.
For ready reference Section 42 of the NDPS Act is quoted here as a whole, which reads thus-
[42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue...
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