- (1.) ON April 17, 1999 Sonam Bahadur Gurung, holding Passport from Nepal, was waiting at the Calcutta Airport to board the Thai Flight, TG-314 going to bangkok. On an intelligence information the Customs Authority intercepted him. His checked-in baggage was brought from the luggage hold. On examination of the baggage in presence of Gurung, 6 Kgs. of black sticky substance was recovered which was kept in the suitcase at its inter bottom panel. On a primary examination with the help of necessary kit, the substance was found to be Hasish being a contraband drug under the narcotic Drugs and Psychotropic Substance Act, 1985 (N. D. P. S. Act of 1985 ). Gurung was immediately arrested and he is still under detention. Gurung was subsequently charge-sheeted under the provisions of Section 21 and 23 of the N. D. P. S. Act. He was ultimately held guilty of the offence and was imposed a sentence of twelve years Rigorous Imprisonment. As of date gurung already suffered detention of more than ten years in jail custody. Being aggrieved, Gurung preferred the instant appeal which was heard by us on the above mentioned date.
(2.) MRS. Rupna Bhattacharya, learned counsel appearing in support of the appellant contended as follows :- i) The prosecution contended that they had intercepted Gurung based on an intelligence report, the source of such information was, however, not disclosed at the trial. ii) Under Section 50 of the N. D. P. S. Act, the accused was entitled to be searched in presence of Magistrate or a Gazetted Officer. In the instant case, no such opportunity was given to the appellant. Hence, the proceeding was vitiated by illegality. iii) Under Section 42 of the N. D. P. S. Act, 1985, the Investigating Officer was duty-bound to note down the information, in writing, received by him to be informed to his superior officer. Such provision was performed in breach. iv) Altogether nineteen packets/slabs were recovered whereas sample was not drawn from each of the packets/slabs. Hence, the final report on the sample examination could not be relied upon to hold that the appellant was carrying the entire consignment being Hashish. v) There were anomalies found out in evidence which were self-contradictory :-a) The prosecution witnesses were not sure with regard to the quality of paper used for packing those slabs. b) P. W. 11 described the consignment as slabs whereas P. W. 9 described it as packets. c) Charge-sheet shows that the consignment was black whereas the chemical Analysis Report would show the same as brown. d) No seal was put on the test report by the scientists who gave final report after Chemical Examination. e) The Preliminary Test Report was not disclosed at the trial. f) Original seizure list was not disclosed at the trial. g) There was inordinate delay in depositing the materials at the godown. The seizure was conducted on April 17, 1999 whereas the consignment was received by the godown keeper on May 13, 1999, almost one month after the seizure. No explanation was given on that score. h) There was discrepancy with regard to the weight of the samples as would be apparent from the test report. Mrs. Bahttacharya contended that the anomalies and/or discrepancies so highlighted above would expressly manifest illegality committed during investigation and such illegality vitiated the process of trial. Hence, the conviction was liable to be set aside and the trial must end in an order of acquittal. As and by way of alternative submission, Mrs. Bhattacharya reminded us that the accused already suffered more than ten years sentence and detained behind the bar. Hence, we should reduce the sentence and pass an order of release. In support of her contention Mrs. Bhattacharya cited the following decisions :-i) Gaunter Edwin Kircher VS- State of Goa reported in All India reporter, 1993, Supreme Court, Page-1456. ii) Antony Okoye VS- The State reported in 1997, reported in The calcrilr (Cal), Page-22. iii) Ahmed VS- State of Gujarat reported in 2000, The Calcutta criminal Law Reporter (Supreme Court), Page-449. iv) Tej Bahadur Singh and Another VS- Narcotic Control Bureau and Another reported in 2000, Volume-I, Calcutta High Court notes, Page 803. v) Jadunandan Roy VS- State of West Bengal reported in 2000, calcutta Weekly Notes, Page-373 vi) State of West Bengal and Others VS- Babu Chakraborthy reported in 2004, Supreme Court Cases (Criminal)Supplementary, Page-174. vii) State of Gujarat VS- Ismail U. Haji Patel and Another reported in 2004, Supreme Court Cases (Criminal)Supplementary, Page-395. viii) Rajesh Jagadamba Avasthi VS- State of Goa reported in 2006, Volume-I, Supreme Court Cases (Criminal), Page-150. ix) Dilip and Another VS- State of Madhya Pradesh reported in 2007, Volume-1, Supreme Court Cases (Criminal), Page-377.
(3.) OPPOSING the appeal Mr. Prasun Datta, learned counsel appearing for the customs Authority contended that the consignment was seized from the suitcase which was identified and claimed by the accused himself of his own. Hence, question of compliance of Section 50 of the N. D. P. S. Act did not arise. In any event, no such plea was taken by the accused at the time of trial. Mr. Datta also relied on various statements made in writing by the accused on his own volition during interrogation which were exhibited during the trial. Mr. Datta lastly contended that the entire investigation had been conducted following the strict mandate of the N. D. P. S. Act. The Court below rightly held the accused guilty of the offence and sentenced him accordingly. No interference was called for by the Court of appeal.;