Partha Sakha Datta, J.
1. The appellant Sukanta Ghosh alias Bapi, convicted under Section 20(c) of the NDPS Act, 1985 and sentenced to suffer rigorous imprisonment for 10 years and pay a fine of Rs. 1 lakh in default to suffer rigorous imprisonment for 2 years as recorded by learned Additional & Sessions Judge, 2nd Court, Jalpaiguri on 1.7.2005 in NDPS case No. 3/04 arising out of NJP, GRPS case No. 4/04 dated 2.2.04, has preferred the appeal on variety of grounds including the ground of misappreciation of evidence.
2. Jai Prakash Mourya, Sub-Inspector of the RPF post at NJP lodged a written complaint with the OC, NJP, GRPS at 18.15 hrs. on 2.2.04 (Ext.1) to the effect that pursuant to a secret information he along with RPF personnel boarded the 2423 Dn. Rajdhani Express bound for New Delhi at NJP Railway Station about 13.05 hrs. in AC coach No. 2 (A/2) and apprehended the accused who was seated on the berth No. 9 having confirmed ticket PNR No. 6235-958652 from New Bongaigaon to New Delhi, and challenged the identity of the accused who on being questioned told that suitcases and bags contained books only. On being further questioned the appellant declared that the materials might be ganja contained in four bags which he was entrusted to deliver at New Delhi. Then with the assistance of the team the appellant was deboarded and the luggages were offloaded at the platform No. 1.
3. On receipt of this complaint the Inspector K. Bhutia recorded NJP, GRPS case No. 4/04 dated 2.2.04 under section D/21 of the NDPS Act and upon completion of investigation chargesheet was submitted against the appellant under Section 20 of the NDPS Act.
4. Learned Addl. and Sessions Judge 2nd Court, Jalpaiguri framed charge under Section 20 of the NDPS Act against the appellant and upon examination of witnesses and examination of the appellant under Section
313. Cr. PC found the appellant guilty of the charge and convicted him under Section 20(C) of the NDPS Act, 1985 and passed this sentence as above.
5. Sri D.P. Mourya Sub-Inspector of Police, RPF attached to New Jalpaiguri Railway Station who is P.W.1 in the case says that he got a source information that a person was travelling on 2.2.04 in 2423 Dn. Rajdhani Express from New Bongaigaon to New Delhi in AC coach No. 2 (A/2) in berth No. 9 with contraband articles in his possession and passed the information to his superior officer in the RPF at NJP wherefrom the said superior officer directed him to the platform so as to take permission from the OC, NJP, GRPS as the train was arriving at platform No. 1 at NJP Railway Station. He then approached the OC, GRPS at NJP Railway Station who told him that ASI Asok Tewari and constable ASI Santa Kumar Subba who were in the said platform already on duty be requsted to render necessary assistance to him. Then he went to the RPF booth on the said platform where he found head constable R.P. Singh and constable Shyamal Das and asked them to accompany him for the operation in Dn. Rajdhani Express. After watching glow sign board of the platform No. 1 so as to ascertain the position of the coach No. A/2 he positioned himself near about the place where coach No. A/2 would halt and just after the train had reached he boarded the compartment with ASI Asok Kumar Tewari and ASI Santa Kumar Subba and found one person seated on berth No. 9 (lower berth) which tallied with his information. On interrogation the person, now the appellant, replied that he was a student going to New Delhi and the luggages attached to the berth contained books only. Following interrogation a member of staff found on search a pink colour wrapped paper containing ganja in one suit case. Immediately, the appellant was deboarded with four number of luggages. Then he came to the GRPS along with the appellant and the luggages. OC, NJP, GRPS, R. Lama Bhutia also arrived at the platform and to him Sri Mourya narrated the incident. The OC, NJP, GRPS passed the information to his superior officer and told him that the property would be seized only in presence of the said superior officer. 2/3 hours thereafter the Inspector of RPF, an officer superior to the OC, NJP, GRPS arrived there followed by other persons. Then Sri Mourya lodged the FIR with OC, NJP, GRPS on production of the accused and two suitcases and two side bags which were found in his possession.
6. The OC, NJP, GRPS Sri R. Lama Bhutia (P.W.2) says that on being produced before him by P.W. 1 along with the FIR he seized two suitcases and two side bags from the possession of the accused containing ganja weighing about 90 kgs. as per seizure list (Ext. 2). The seizure list reveals two suitcases-- one containing 35 kgs. of ganja (Mat. Ext. I) and the other containing 27 kgs. of ganja (Mat. Ext. II) and the two side bags-one containing 15 kgs. (Mat. Ext. V) and the other containing 13 kgs. of ganja (Mat. Ext. VI)--thus totaling 90 kgs. in four containers. The seizure was made in presence of P.W.1, P.W.6, the Inspector of Police and other staff. He seized also a cash of Rs. 3,300/- (Mat. Ext. IX), ticket of Rajdhani Express (Ext. 3) and a mobile phone (Mat. Ext. VII) from the appellant. From each of the four containers namely Mat. Ext. I, II, V and VI he obtained 50 gms. of ganja as sample under a separate seizure list (Ext. 5) in presence of witnesses and endorsed the case to S.I. Khalil Bhutia (P.W.9) for investigation. This witness said that at 13.15 hrs. P.W.1 gave him the information that he had an information about arrival of some contraband articles in Rajdhani Express and sought for his assistance and he accordingly directed ASI Asok Kumar Tewari and Santa Kumar Subba to assist P.W.1, P.W.3 Asok Kumar Tewari, ASI of Police corroborated the entire version of P.W.1 and P.W.2, saying that he along with P.W.1 entered into the coach at berth No. 9 and P.W.1 interrogated the person who was seated in that berth and on interrogation he disclosed his identity as a student carrying books in the containers which were two VIP suitcases and two side bags. RPF personnel got smell of ganja in the container and then the person was taken out of the train and taken to NJP, GRPS P.W.4 Santa Kumar Subba, another ASI of Police then attached to NJP, GRPS said that as directed by the OC, NJP, GRPS he along with P.W.3 boarded the compartment and found a person seated:in berth No. 9 and on interrogation he introduced himself to be a student carrying books in two suitcases and two bags but on opening a bag the RPF personnel found smell of ganja. Then the person was handed over to the OC, NJP, GRPS, Now in evidence-in-chief the witness says that person was not found in Court. P.W.7, Shyamal Kumar Das, constable of the RPF said that P.W.1 detected two VIP suitcases and two bags in berth No. 9 and the boy along with luggages was taken out from the train and handed over to the GRPS.
7. P.W.6 Dharmadeb Chatterjee, Inspector of Police attached to IRP Siliguri speaks of seizure of ganja at NJP GRPS in his presence at 18.15 hours on 2.2.04 which were found contained in two VIP suitcases and two bags weighing about 90 kgs. by the OC, NJP, GRPS from the possession of the appellant. He identified the Mat. Exts. I, II, V and VI. Now this witness is also a seizure to the samples of the contraband articles at the NJP, GRPS and he signed in the seizure list Ext. 2 and
5. P.W.8 Debasish Roy delivered the four sample bags as per direction of the I.O. (P.W. 9) to the State Drug Controller. P.W.5 turned hostile as he says that on being asked by OC, NJP, GRPS he put his LTI on a paper. According to the prosecution he stated before the IO that he saw ASI A. K. Tewari, an RPF personnel carrying two bags and two suitcases with a man to the GRPS Khalil Bhutia. P.W.9 is the IO of the case.
8. Having thus recorded the sumtotal of evidence of the witnesses let us proceed to have critical appreciation thereof and while doing so we will carefully note the line of defence as they do appear from the trends of cross-examination. It may be further recorded here that the learned Trial Court examined four doctors namely Dr. Asish Lahiri, Dr. Debangsu Ghosh, Dr. Suresh Chandra Bhoumik and Dr. Sumanta Mukherjee and also examined Debasish Mukherjee, the Superintendent of Jalpaiguri Central Correctional Home. The purpose of examination of these persons may be mentioned in the sequel. It is only suffice to say that the statements of these five witnesses who were examined as Court witness under Section 311 of the Cr. PC do not have any relation to the fact-in-issue.
9. The line of defence as could be noticed from the trends of cross-examination of the witnesses is that the appellant did not introduce himself to be a student going to Deihi, that he did not tell that he was carrying books in the bags, that nothing was recovered from the appellant in coach No. AC-2 in Rajdhani Express, that the appellant was not travelling in coach No. AC-2 of the said train and that the accused has been falsely implicated. Thus the defence has no positive case of its own and the case of the defence is purely a case of denial of the prosecution case. Again it has been suggested to the IO that since the appellant refused to give illegal gratification to him he has been falsely implicated. The appellant who was thoroughly examined under Section 313, Cr. PC by the learned Judge in the Trial Court stated that when he was caught none except one was present and this was about 6 p.m. in the evening when he was returning by Kanchanjangha Express. In answer to another question regarding his signing on the seizure list he said that he signed in unconscious condition and yet in answer to another question he said he had been conspired against.
10. Mr. Basu argued that the appellant was not travelling in 2123 Dn. Rajdhani Express and he was travelling in another train and at about evening which was long after Rajdhani Express had departed from NJP Railway Station that the appellant was arrested at the platform. It is further argued that to substantiate his case he wanted to adduce evidence but he was denied the opportunity. Mr. Goswnmi learned Advocate for State respondent opposed the argument submitting that having gone through evidence of P.W.1 and P.W.2 as also P.W.3 and P.W.4 it cannot be said that the appellant was travelling in a different train. We have heard the submissions of the learned Counsels but are unable to agree with Mr. Basu. Whether the appellant was denied the opportunity to adduce evidence in support of his alleged defence will be separately dealt with but regard being had to evidence on record it cannot be said that the appellant was travelling in a different train. Ext. 3 is the ticket bearing PNR No. 623-5958652 seized from the possession of the appellant showing the journey of the appellant from New Bongaigaon to New Delhi in AC-II, berth No. 9 by 2423 Dn. Guwahati-Rajdhani Express. The appellant from whom a driving licence was seized (Mat. Ext. VIII) is a resident of Baburhat, Nilkuthi of the district Cooch Behar. As corroborated by P.W.3. P.W.4, P.W.7, it has been clearly established beyond any amount of reasonable doubt that it was the appellant who was travelling in berth No. 9 in AC-II coach in 2423 Dn. Rajdhani Express from New Bongaigaon to New Delhi with two suitcases and two side bags containing 90 kgs. of ganja and was apprehended by P. W. 1 in the said train being assisted by P.W.3 and P.W.4 with the said contraband articles and thereafter he was deboarded and taken to OC, NJP, GRPS wherein seizure was effected. The accused was apprehended in Rajdhani Express at 13.15 hrs. on 2.2.04 when the train had reached NJP Railway Station and formally seizure was effected as per seizure list at 18.15 hrs. and the time gap between the apprehension of the accused and preparation of the seizure list has been accounted for by P.W.1 with the words that 2/3 hours were spent to wait for arrival of the superior of the OC, NJP, GRPS who is P.W.6 the Inspector of Police and who signed on the two seizure lists as witnesses to the seizure and who identified before the Trial Court the four Mat. Exts. Namely I, II, V and VI. It is for the first time in examination of the appellant under Section 313, Cr PC that the appellant told the learned Court that he was returning by Kanchanjangha. This line of defence was not taken in cross-examination of the witnesses and we have no manner doubt to hold that this was a false plea made by the appellant. If he was travelling in Kanchanjangha Express on 2.2.04 he could have produced that ticket. That the railway ticket (Ext. 3) the description of which has been stated above was found from the possession of the accused and that the ticket tallied with his journey from New Bongaigaon to New Delhi could not be dislodged by any amount of logic, and it is not the defence case that the ticket was found from the possession of some other passenger with the accused having been falsely planted in the case. That the name of the appellant was Sukanta Ghosh alias Bapi has not been challenged and if it was the positive defence case that the appellant did not travel in that train with contraband articles in four containers with the ticket allegedly found in his possession and he was instead travelling by Kanchanjangha Express then it could have been agitated by production of Kanchanjangha ticket that the ticket which has been seized was not purchased in the name of the appellant. However the statement of the appellant under Section 313, Cr. PC corroborated the evidence of P.W. 1, 2, 6 and other witnesses to the effect that he was caught red handed with possession of contraband articles at NJP Railway Station. The witnesses who deposed in the case were Sub-Inspector of RPF, OC, NJP, GRPS and Inspector of Police who were all responsible officers having no animosity with the appellant who was only a traveller in the train and as such it can hardly be said that the appellant has been falsely implicated. The appellant said in his examination under Section 313, Cr. PC that he was conspired against. If it was so he was so conspired against by person or persons known to his circle and not by P.W.1 and other witnesses.
11. Mr. Sekhar Basu, learned Senior Counsel appearing for the appellant submits that the secret information received by P.W.1 was not reduced into writing and this is a big blow to the veracity of the prosecution case and doubt is legitimately cast about the authenticity of the information. It is further argued by Mr. Basu that it is not the hold assertion of P. W. 1 that the secret information as was received by P.W.1 was bearing the specific name of the accused as a traveller in berth No. 9 of coach No. AC-2 of Dn. 2423 Rajdhani Express. Mr. Basu in reliance upon a decision in State of Orissa v. A. Rajeswar Patra, reported in 2004(10) SCC 557, contended that failure of the IO to reduce information reduced to writing was fatal to the prosecution case. Mr. Goswami, learned Public Prosecutor refutes that contention with the submission that the evidence of P.W.1 clearly discloses that he had reported this information to P.W.2 who is the OC, of NJP, GRPS. We are unable to uphold the submission of Mr. Basu for the following reasons:
We find that in his cross-examination P.W.1 stated that he communicated the information to his superior officer orally. That this statement is not a false one would appear from Ext. 10 which is GD Entry No. 75 dated 2.2.04 recorded by P.W.2 the OC of the GRPS. This GD entry was entered at 12.15 hrs. on 2.2.04 which was before the train had arrived at the platform No. 1 and before the appellant was apprehended in the compartment. This GD entry is to the effect that on 12.15 hrs. P.W. 1 called at the GRPS and reported that he had a secret information regarding transportation of ganja in AC-2 Dn. Rajdhani Express on the said date from Bongaigaon and he needed assistance and he accordingly directed P.W.3 and P.W.4 for such assistance to P.W.1. Therefore, it cannot be said that the apprehension of the appellant in the train with contraband articles in his possession in four containers has been a story directly emanating from P.W.1 through FIR for the first time. In fact, the FIR was lodged immediate prior to formal seizure of contraband articles at NJP, GRPS by P.W.2. Seizure was effected formally at 18.15 hrs. on 2.2.04 and FIR was lodged at about that time along with production of the appellant and the contraband goods. Thus the veracity of the evidence of P.W.1 is confirmed and testified by the GD Entry No. 75 dated 2.2.04 (Ext. 10). Further, GD No. 88 dated 2.2.04 recorded at 18.15 hrs. by P.W.2 is a vivid description of what had happened and what has been stated in evidence by P.W.1, P.W.2, P.W.6 and other witnesses GD No. 88 dated 2.2.04 confirms arrest of the appellant at the NJP, GRPS with contraband articles. In the reported case the seizure was effected from a composite building of house and shop and as such the provision of Section 42 of the Act being applicable it was incumbent upon the IO to reduce information into writing. The facts of the case are clearly distinguishable from ours in this that this is the case of seizure and arrest of the appellant from a public place which is a compartment in a train which was about to move towards New Delhi after a brief halt at NJP. In case of seizure from a place from any building falling under Section 12 of the Act it is obligatory upon the officer to take down information in writing under Sub-section (1) of Section 42, but in Section 43 of the Act there is no similar provision for the officer to take down information in writing or recording grounds for his belief. It is a case where seizure was not effected from any private building but from a public place but even then, as discussed above, P.W.2 who is an officer superior to P. W. 1 himself recorded the information in the general diary book at 12.15 hrs. on 2.2.04 under GD Entry No. 75 dated 2.2.04 that P.W.1 reported to him that he had a secret information regarding transportation of ganja in AC-2 of Dn. Rajdhani Express on that day and accordingly he directed P.W.3 and P.W.4 for necessary assistance to P. W.1 and again informed the matter to his further superior officer who is P.W. 6 in terms of the GD Entry No. 75 dated 2.2.04.
12. Mr. Basu wanted us to disbelieve evidence of P. Ws. 1 and 2 with respect to the alleged seizure of the 90 kgs. of ganja from the possession of the appellant in side the compartment of the train as according to him his client was debarred from giving evidence to the effect that he was not travelling in the Dn. 2423 Rajdhani Express but in a different train and the alleged source information received by P.W.1 is a myth. Mr. Goswami learned Advocate for the State respondent seriously challenged this argument on the ground that evidence clearly discloses seizure of 90 kgs. of ganja from the four containers while the accused was seated in berth No. 9 of AC-2 coach of the said Rajdhani Express. Having gone through evidence of the witnesses we are unable to accept the submission of Mr. Basu. What we find from evidence of P.W.1, P.W.2, P.W.6 and other witnesses who supported the three witnesses are that P.W.1 had secret information that a person carrying contraband articles was proceeding towards New Delhi by AC-2 coach in berth No. 9 in 2423 Dn. Rajdhani Express. He left that information with his superior officer and then being directed by him he came to the platform and informed P.W. 2, the OC. NJP, GRPS of the matter and being assisted by P.W.3 and P.W.4 he apprehended the appellant who was found sealed in berth No. 9 of the AC-U coach of the said train and found two suitcases and two side bags in the possession of the appellant who first introduced himself to be a student carrying books in the bags to New Delhi and when one of the RPF personnel found on opening of a bag ganja he divulged that he was entrusted to deliver ganja to Delhi. He was then deboarded and taken to P.W. 2 who found following:
1) One sky blue VIP Breeze suit case unique wheels, ball bearing for aforltess motion sticker. Measuring length 28", height 10 and 1/2" and breadth-23" containing one pink colour plastic packet containing ganja weighing 35 kgs. (approx.)
2) One greenish blue recksin suitcase with brown firm leather belt strip, attached wheel, with digital lock, black handle with black rubber patch bearing name "Sonada", Measuring-length-28", height 9 and 1/2", breadth-19" containing pink plastic packet containing ganja weighing 27 kgs.
3) One black blue side bag bearing level Max. measuring length-30" height-13", breadth-11", containing pink plastic packet containing ganja weighing 15 kgs. (approx.)
4) One sky blue side bag having Adidas level, measuring length-27", height-12", breadth 11 and 1/2" approx containing pink plastic packet containing ganja, 13 kgs. (approx.)
5) Journey ticket of Down 2423 Rajdhani Express, A/C 2 bearing ticket No. 03901186 and PNR No. 623-5958652 from New Bangaigaon to New Delhi, having berth No. 9 in A/2.
6) Cash Us- 3300/- (three thousand three hundred).
7) One duplicate i.e. xerox copy of driving licence baring name Sukanta Kr. Ghosh s/o Sushanta Kr. Ghosh of Baburhat, Nilkuthi, Cooch Behar, licence No. WB 64/5975, date of issue 8.6.2001 valid upto 1.6.2002, issued by Licensing Authority Cooch Behar.
8) One Samsung Mobile bearing No. IME1 3521-7900/10320410 prepaid. The statement of the appellant in his examination under Section 313, Cr. PC that he was caught in the evening is not incorrect because formal arrest was effected in the evening but his further statement that he was travelling by Kanchanjangha Express is a total he. It was impossible on the part of P.W.1 himself to record the information in writing because as he says in his cross-examination that at the relevant time he was moving in the platform and the information was passed on to the superior officer orally who recorded it in writing. The seizure of mobile phone, of the ticket, of the driving licence is a conclusive proof of the fact that it was the appellant and none but the appellant who was apprehended inside the train with four containers containing about 90 kgs. of ganja. The accused failed to explain how mobile phone and his driving licence came to be seized by the IO were he not apprehended while travelling in the train. It has been stated by P.W. 1 in his evidence that berth Nos. 7 and 8 were in occupation of a couple and their luggages were with them in those two berths, while berth No. 10 was lying vacant with no passenger being occupant of that berth, and it was the appellant who was found seated in berth No. 9 with two suitcases and two bags in his possession. Non-mention in the GD No. 75 (Ext.10) about the specific name of the traveller in berth No'.9 was not of any significance because as we find from evidence of P.W. 1 he had secret information that a person in berth No. 9 was travelling in the Rajdhani Express in AC-2 coach with ganja in his possession.
13. Mr. Sekhar Basu argued that though P.W.3 and P.W.4 claimed to had assisted P.W.1 in recovery of ganja from a person in berth No. 9 they failed to identify the appellant in Court and such failure amounts to failure of the prosecution case. We fail to agree. Failure of P.W.3 and P.W.4 to identify thei appellant on dock in the Trial Court cannot be the failure of the prosecution case because we must not forget that it was P.W.1 who as Sub-Inspector of RPF had secret information to the effect as discussed above, who approached the OC, NJP, GRPS for assistance, who boarded the train in compartment No. AC-2 and challenged the occupant in the seat, who apprehended the appellant in the train and made him deboarded and who identified such appellant before the Trial Court. This evidence has been corroborated by P.W. 2 who says that it was the appellant who was produced by P.W.1 before him with contraband articles and moreover P.W.3 and P.W. 4 have made it specific that they entered into the compartment in berth No. 9 with PW.1 and found two suitcases and two bags in the possession of a person and who according to P.W.3 and P.W.4 introduced himself to be a student carrying books to New Delhi and on opening the bag ganja was smelt.
14. Mr. Basu, learned Senior Counsel for the appellant argued that in the case the provision of Section 50 dealing with conditions under which search of persons shall be conducted were not complied with and the safeguards mentioned in Section 50 are intended to serve the purpose of protecting the person against false accusation. Having gone through evidence of the witnesses as we have discussed above in the preceding paragraphs there is no earthly reason to say that the appellant has been falsely implicated with a false charge. The provision of Section 43 does not lay down any mandate that soon after apprehension of the accused he shall have to be taken to any Gazetted Officer or any nearest Magistrate. The place of search is a public place, it was in a compartment of a train which was about to move towards New Delhi after a brief halt at NJP Railway Station. Taking a person to a Gazetted Officer or to any nearest Magistrate is only at the requirement of a person so arrested and evidence does not disclose that the appellant demanded of P.W.1 and P.W.2 to be taken to any nearest Magistrate. Moreover P.W. 2 did not effect seizure and make formal arrest of the accused until the arrival of P.W.6 who himself is a Gazetted Officer and in his presence search and seizure was conducted. Therefore compliance with the provisions of Section 50 was also made and it was not necessary for P.W.1 to take the appellant to any Magistrate for preparation of seizure and all samples of such seizure in respect of the recovered articles in the circumstance.
15. Mr. Basu contended that the actual place of seizure being the compartment of the train seizure and search was actually not effected at that place and it was in the office of the OC, GRPS. We must not lose sight of the fact that the train was about to move after a brief halt at NJP Railway Station and formalities and paraphernalia of search and seizure was so lengthy that it was not possible for P.W. 1 to complete all the formalities inside the compartment and accordingly he made the appellant deboarded on the platform No. 1 with four containers and took him to the OC, NJP, GRPS which was situated in that platform itself.
16. Mr. Basu contended that before P.W.1 proceeded to search the luggages of the appellant in the compartment of the train he did not offer himself to be searched and the grounds of arrest were not divulged to the appellant, if we have gone through evidence of P.W.1 minutely it would reveal that the argument would be of no substance because as soon as P.W.1 asked the appellant about the containers which were two suit cases and two side bags the appellant introduced himself to be a student proceeding to Delhi with four containers carrying books and when soon thereafter by making a small opening ganja was found the appellant himself told P.W.1 that they contained ganja which was to be delivered to New Delhi. The properties recovered from the appellant were not a small article easily to be carried in the pocket of a shirt or a trouser of a person and it is preposterous to say that there was any meaning on the part of P.W.1 to offer himself to be searched more particularly when P.W.1 did not enter the train at NJP with large containers carrying some articles. As to disclosure of the ground of arrest it has to be said that where in the presence of the appellant ganja was found in a bag he could realize the ground of his arrest as admittedly, no books were found in the bags.
17. Mr. Basu relied upon a decision of the Hon'ble Supreme Court in Rajesh Jagdamba Avasthi v. State of Goa as and submitted that according to P.W.2 four sample packets (Mat. Ext. X series) each containing 50 gms. of ganja were sent to State Drugs Control and Research Laboratory of the Government of West Bengal while the Government analyst stated in the report (Ext. 7) that the gross weight of the samples were 30 gms., 28 gms. 30 gms. and 29 gms. and this variance between the evidence of P.W.2 and Ext. 7 makes it dubious as to the quantum of sample sent after packing to the Government analyst. We have carefully gone through the decision cited wherein two packets of charas one weighing 100 gms. and the other weighing 115 gms. were recovered from the shoes of the appellant of that case and the said two packets in their entireties were sent to the chemical analyst who found 98.16 gm. in one envelope and 82.50 gm. in another envelope. It was not a case where samples were taken out of the two envelopes and then sent to the chemical analyst. It was a case where two envelopes were sent intact to the chemical analyst who measured the charas at variance with what was noted by the police officer. In our case the quantum of seizure was 90 kgs. and it was impossible on the part of the IO to send the entire 90 kgs. to the chemical analyst and accordingly sample containing some amount of ganja was taken from each of the four containers and sent to the chemical analyst in four sealed packets. Now it has to be noted that it is not the claim of P.W.2 that the quantity of sample was actually measured before being despatched to chemical analyst which is why in Ext. 5 it was recorded that the amount was approximately 50 gms. in each of the four sample packets. Secondly in the reported decision the seal of the packet as well as two packets themselves were in the custody of a single person and there was every possibility of the seized substance being tampered with. Such is not the case here. Sample was taken by P.W.2 in the presence of P.W.1 and P.W.2 who is a Gazetted Officer. Therefore it cannot be said that P.W.2 or any officer took out some portion of the sample for their personal benefit or unlawful gain. If the quantum of samples had really been measured then and then only the argument of Mr. Basu would have carried a force.
18. Mr. Basu referred to the evidence of P.W.9 who is the IO of the case to submit that as per the evidence of IO he has not sent specimen impression of the seal along with the forwarding report and the sample packets to the said State Drug Controller at Calcutta. Mr. Goswami dispels the argument on the ground that specimen impression of the seal was affixed on the forwarding letter sent with the samples to the State Drug Controller. We find that what P.W.9 has said is clearly a wrong and unmindful statement because Ext. 6 which is in Form No. 5203 contained the facts of the case, the description of the exhibits, nature of examination required and there is a clear specimen impression of the seal in page 3 and in the right hand side of the paper there is signature of the learned Additional and Sessions Judge, 2nd Court, Jalpaiguri and the report of the Government Analyst shows that the seals were found intact and it is not the report of the Government Analyst that the seals on the sample packets did not tally with the specimen impression of the seal which was affixed on the left hand margin at page No. 3 of the forwarding report in West Bengal Form No. 5203 and in the right hand side there is signature of the learned Additional Sessions Judge, 2nd Court, Jalpaiguri. P.W.9 who is the IO of the case sent four sample packets each packet containing 50 gms. of ganja to the State Drug Controller for chemical examination and the report of the State Drug Control and Research Laboratory was that all the four samples which were chemically tested separately were found to contain ganja (Ext. 7). That the articles in the two suitcases and the two side bags were ganja admitted of no dispute. Ext. 2 which is the seizure list bearing signatures of the appellant as also P.W.1. P.W. 2, P.W. 5 and P.W.7 reveals seizure of the aforesaid articles at the NJP, GRPS at 18.15 hrs. on 2.2.04. Ext. 5 is another seizure list revealing seizure of sample of about 50 gms. of seized ganja from each of the four containers in the presence of the appellant as also of the aforesaid witnesses. P.W.6 the Inspector of the RPF also signed in both the seizure lists.
19. Mr. Basu contended that all the witnesses to the seizure are the officials of the railway police and no independent witness was examined to support the seizure of ganja from the possession of the appellant at platform No. 1. The argument could not be accepted because barring P.W.3, P.W.4, one member of the public namely P.W.5 Jiban Goswami was witness to the seizure. He signed on the seizure list. P.W. 5 is an illiterate person who was available at the railway station and for reasons known to him he turned hostile to say that at the asking of the OC of NJP, GRPS he put LTI on a paper but did not find any goods there. This witness turning hostile does not make the prosecution case untenable in view of overwhelming evidence unimpeached throughout to say that it was the appellant who was found possession of four containers with ganja and seizure was effected from him. P.W.9 stated on oath that P.W.5 had stated before him that he had seen P.W.3 and RPF personnel carrying two bags and two suitcases along with a person to the GRPS and he further stated to him that ganja was wrapped in a paper contained in suitcase. Therefore, the argument of Mr. Basu does not hold good.
20. Yet Mr. Basu contended that according to prosecution what was seized from the appellant was a sky blue VIP Breeze suitcase weighing 35 kgs. of ganja, one greenish blue recksin suitcase containing 27 kgs. of ganja, one black blue side bag containing 1.5 kgs. of ganja and one sky blue side bag containing 13 kgs. of ganja but before the learned Trial Court there was no ganja in black blue side bag and sky blue side bag and what was produced before the learned Trial Court was one brown colour VIP suitcase in place of one side bag and one VIP (Alfa suitcase) in place of another side bag and this has destroyed the prosecution case all through. Charming though the argument is, it is of no avail. Before the Id. Trial Court sky blue VIP Breeze suit case containing 35 kgs. of ganja (marked Mat. Ext. 1) and one greenish blue recksin suitcase containing 27 kgs. of ganja (marked Mat. Ext. II) were produced and they were so marked. The two side bags namely one black blue side bag (marked Max) in which 15 kgs. of ganja was contained and one sky blue side bag (marked Adidas) in which there was 13 kgs. of ganja were also produced and they were marked Mat. Ext. V and VI but those two side bags could not contain ganja and there is an explanation recorded in the Malkhana Register (Ext. II) to the effect that due to bad and torn condition of the two side bags causing problem of transportation to court and to avoid loss of the contents of the said two bags the contents were taken into one brown colour VIP suitcase (Mat. Ext. III) and one VIP Alfa suitcase (Mat. Ext, IV) and they were produced before the learned Trial Court along the two side bags which were recorded as torn. Transportation from NJP, GRPS Malkhana of the contents of the two side bags by two other containers was necessitated because of detection of the damage of the two side bags and in order to have safe carriage of the ganjas of those two containers without loss the side bags were replaced by two other containers but those two side bags were also produced and marked as Mat. Exts. V and VI and the two containers in replacement of the two side bags were marked as Mat. Exts. III and V. This cannot be said to be tampering with the exhibits. It is not that the seized ganja was not produced before the learned Trial Court. The two suitcases Mat. Exts. I and II containing ganjas weighing 35 kgs. and 27 kgs. were produced as Mat. Ext. I and II and the two containers containing ganja of 15 kgs. and 13 kgs. were also produced under Mat. Exts. III and IV along with the empty side bags which were torn and damaged. He was argued that when the bags were seized they were not found torn and damaged and it has not been explained as to how they could be found torn. It is not improbable that the bags could get damaged and torn in course of time and no suspicion could be ascribed to it.
21. Mr. Basu contended that the material exhibits did not bear any labelling and seal, P.W.2 the officer who seized the two suitcases and two bags after production before him by P.W. 1 said in his evidence that the labels were prepared and affixed on the seized articles but at the time of trial they could not be noticed. Mr. Basu contended that P.W. 6 said that there was no label on the containers. PW.9 has stated in his evidence that the properties were made over to him by P.W.2 after sealing and labelling. Now that in course of the trial the labels could not be noticed does not belie the evidence of P.W.2. In cross-examination P.W.9 has said again that the OC, NJP, GRPS affixed the wax seal on the recovered articles including on the samples. That samples were sealed is borne out from the report of the Chemical Analyst. Mr. Basu referred to statement in cross-examination of P.W.9 to the effect that Mat. Ext. XI does not reveal that the articles were duly sealed and labelled. We are surprised to see that there is no object called Mat. Ext. XI. It is the repealed version of P.W.2 and P.W.9 that the contraband articles were sealed and labelled which were Mat. Exts. I, II, V and VI, since changed to III and IV in place of V and VI because of damage of bags. Reading between the lines of evidence of the witnesses we do not find any property called Mat. Ext. XI and it is not known how there could be reference to Mat. Ext. XI. There is one exhibit called Ext. II which is an exhaustive entry in the Malkhana Register of NJP, GRPS of the description of the properties seized and taken to Malkhana with a note that due to bad and torn condition of the containers 3 and 4 causing risk of loss of contents those containers were changed to two other suitcases for transportation of the same to the Court Malkhana. Now in this description of this property (Ext. II) there is no note that the containers were sealed and labelled. In fact, in the Malkhana Register, as learned Advocate for the State respondent argues, such entry is not required and learned Advocate for the State respondent submits that in no entry of other cases in this Malkhana Register it has been the practice to note that the properties were sealed and labelled. The Malkhana Register is intended to record the properties received in the Malkhana and the purpose is nothing more than that. Therefore non-appearance of label on the container at the time of trial does not, having regard to the totality of the facts and circumstances of the cases and the evidence on record, negate the factum of seizure of contraband articles.
22. Mr. Basu argued that no weighment chart was produced to show that the goods were weighed at the time of seizure and in this respect he draws our attention to the evidence of the IO to the effect that he has not seized the weighment chart or any paper relating to weighment of the goods seized. According to Mr. Basu if the goods were really weighed a weighment chart would have been produced in support of the weighment. It is not the IO who was the seizing officer. The officer who seized the goods is P.W.2 who says in his cross-examination that weighment of the recovered articles was taken in the parcel office attached to the NJR, GRPS and weighment was noted in a slip which of course has not been produced. Now the four containers are said to have contained ganja to the quantum of 35 kgs., 27 kgs., 15 kgs., 13 kgs. It cannot be assumed that P.W.2 fictitiously recorded the weighment of the contraband goods. Having noticed the volume and measurement of the two suitcases and two bags with respect to length, breadth and height as was made by P.W.2 and the description of which has been given so in details it can be safely said that the four containers were sufficient to contain 90 kgs. of ganja. Therefore, non-production of the weighment slip does not disprove the quantum of ganjas.
23. Mr. Basu submitted that P.W. 3 and P.W. 4 who accompanied P.W.1 to the compartment failed to identify the accused in Court and their failure to identify the accused in Court fails to entangle the accused with the contraband goods allegedly seized. Now P.W. 3 and P.W. 4 stated that they accompanied P.W.1 to the compartment in Rajdhani Express and that a person who was seated in lower berth No. 9 of the said coach was interrogated and he introduced himself to be a student carrying books in the two suitcases and two bags and that on opening a bag, presence of ganja was smelt. It was P.W. 2 who seized the railway ticket from the appellant and deboarded him with luggages and it cannot be argued by any amount of earthly reasoning, nor was it the defence case that in lower berth No. 9 a person different from the appellant was travelling and instead of any such different person the appellant has been picked up. It could not be the case of the defence that the railway ticket seized was not in the name of the appellant. On the day when P.W.1 was examined the appellant was on the dock and if in spite of presence of the appellant in the Court room P.W.3 and P.W.4 choose not to identify the appellant for reasons best known to them it cannot be said that the appellant was not the person who was apprehended in the railway compartment with the four containers in his possession and P.W.2 has falsely implicated the appellant. In examination under Section 313, Cr. PC the appellant admitted having been arrested at the railway platform but he said that he was travelling by Kanchanjangha Express which is palpably false. If he was travelling by Kanchanjangha Express he could have produced the ticket and that was not the defence in cross-examination of the witnesses. Before the IO it was the defence case that at platform No. 1 of NJP Railway Station on 2.2.04 the accused was arrested and tagged with the goods because he refused to favour P.W. 9 with illegal gratification. If the appellant was an innocent traveller with no contraband goods in his possession it was impossible that all on a sudden of all the persons in train P.W. 9 who did not know the appellant since before the incident would ask for illegal gratification for no reasons. P.W. 1 who is principal witness of the prosecution case intercepted the appellant in the train, deboarded him, took him to P.W. 2 who also identified the appellant before the Court to be the person who was produced before him by P.W.1 and this has been corroborated also by P.W. 6 and P.W. 9. Therefore, non-identification of the appellant by P.W.3 and P.W.4 is of no consequence.
24. It was argued by Mr. Basu that the learned Trial Court did not afford opportunity to the appellant to adduce defence evidence. Ld. Advocate for the State-respondent by drawing our attention to different orders of the learned Trial Court passed at the time of trial from time to time submitted that this was far from the truth and according to him the order sheets would reveal how the appellant tried his best to delay the trial by avoiding attendance in Court on one plea or another and when all his attempts failed he filed a petition before the High Court with no success for transfer of the case amidst trial from the Court trying him. It is found further from order sheets that on a number of days the accused was not produced from jail before the learned Trial Court on plea of illness and even when recording of evidence was concluded he avoided to attend the Court by taking the plea of illness for his examination under Section 313, Cr. PC. The orders dated 10.5.05, 18.5.05, 19.5.05, 20.5.05, 6.6.05, 13.6.05, 14.6.05, 16.6.05, 17.6.05, 22.6.05, 23.6.05 and 24.6.05 would show how attempt was made to defer cross-examination of witnesses, to secure adjournment of the case, to defer examination of the accused under Section 313, Cr. PC and to take the plea at last for transfer of the case by filing a petition before the High Court. On a number of days the appellant was not produced from the judicial custody on the plea of illness and this necessitated the learned Trial Court to examine as Court witness. Dr. Debangsu Ghosh, Dr. Debasish Mukherjee, Dr. Sumanta Mukherjee and Dr. Asish Lahiri beside Suresh Chandra Bhowmick, the Superintendent of Sadar Hospital, Jalpaiguri. Before Dr. Debangsu Ghosh the accused took the plea that he was suffering from colitis. Dr. Ghosh advised for ultrasonography but the patient did not get it done. The accused was admitted for abdominal pain and on this plea he was taken to Medical College and Hospital but was discharged on 11.6.05. Dr. Ghosh says that the appellant was found physically fit and no abnormality was detected and accordingly he discharged him from the hospital. Dr. Ghosh further says that the conduct and modus operandi of the accused appeared to him suspicious and no abnormality was detected. Dr. Sumanta Mukherjee says in his evidence that he did not suggest that the accused should be confined to sick bed and he did not find any necessity to administer saline or oxygen and he was taking normal diet. The accused only complained orally of his abdominal pain and at last also at North Bengal Medical College and Hospital CT Scan was done and the Medical Board suspected appendicitis. Dr. Asish Lahiri, the Medical Officer of the Correctional Home at Jalpaiguri stated that the prisoner was complaining of pain of abdomen and he advised examination of urine. Now these phenomena reveal that the appellant resorted to the plea of illness, which was not at all acute and critical and which was to secure adjournment from date to date. The order sheets further revealed that the learned Trial Court afforded opportunity to the appellant to adduce defence evidence and asked him to give the list of witnesses with particulars which the appellant did not do and on the contrary he prayed for long adjournment which the learned Trial Court ultimately did not grant. He was asked to put in requisites so that the learned Trial Court itself would summon the defence witnesses as per the list to be produced but the list of witnesses was not produced. Therefore it cannot be said that the appellant was not granted opportunity to adduce defence evidence. In the circumstance it cannot be said that the appellant was travelling in Kanchanjangha Express, or that at the railway platform he was asked to give illegal gratification to P.W.9 or that he was falsely planted. None of the witnesses of the prosecution had any acquaintance with the appellant since before the incident and the question of false planting is an absurd one. According to P.W.1, P.W.3 and P.W.4 the appellant stated that he was going to Delhi as a student with books in the bags and suitcases, it cannot be said P.W.1, P.W.3 and P.W.4 have made false statement. If he was a student he would have disclosed as to where he was studying at Delhi but when the bag revealed ganja the appellant stated that he was to deliver the ganja to Delhi. The matter of the fact is that the bags did not contain books nor was he a student of Delhi. The bags contained 90 kgs. of ganja which he failed to account for and it involved commercial quantity coming within the purview of Section 20(c) of NDPS Act, 1985 (as amended).
25. Regard being had to the facts and circumstance of the case as well as evidence on record we are of the considered judgment that the prosecution case was well built and the Id. Trial Court did not commit any error in recording conviction of the appellant under Section 20(c) of NDPS Act and imposing sentence thereunder. The sentence of imprisonment and fine are at the imnimum statutorily fixed there is no scope of modification of the sentence.
26. We, accordingly, dismiss the appeal and confirm the judgment and order of the learned Trial Court.
27. A copy of the judgment along with the LCR shall be transmitted to the learned Trial Court and also a copy of the judgment shall be forwarded to the Superintendent, Jalpaiguri Central Correctional Home for information of the appellant.
28. Urgent xerox certified copy of this judgment shall be provided if applied for.
Alok Kumar Basu, J.
29. I agree.
