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HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No.51 of 2023
Saha Alam S/O. Mantaj Mia Of Mathurapur,
P.S. South Sadar, P.O. Dhanpur,
Dist. Comilla, Bangladesh.
Appellant(s).
……………
Versus
The State Of Tripura
espondent(s).
……………R
For Appellant(s) : Mr. S. Battacharjee, Advocate.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
rd
Date of Hearing : 3 May, 2024.
st
Date of Judgment : 31 July, 2024
YES NO
Whether fit for reporting :
√
_B_E_ F_O_R_E_
HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA
_J_ U_ D_ G_ M_E_N_T_
The appeal arises out of the judgment dated 20.5.2023
passed by Ld. Special Judge Sepahijala, Sonamura, Tripura in
Special (NDPS) Case No.76 of 2022 whereby the appellant was
convicted under Section 20(b)(ii)(B) of NDPS Act, 1985 and also
under Section 3 of the Passport (Entry into India) Act, 1920 read
with Rule 6 of the Passport (Entry into India) Rules, 1950, and was
sentenced to suffer rigorous imprisonment for 4 years and to pay
fine of Rs. 20,000/- only and in default to pay the fine to suffer
further simple imprisonment for 6 months under Section
20(b)(ii)(B) of NDPS Act and also to suffer rigorous imprisonment
for 6 months and to pay fine of Rs. 5,000/- and in default to pay
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the fine to suffer further simple imprisonment for 15 days for
commission of offence punishable under Section 3 of the Passport
(Entry into India) Act, 1920 read with Rule 6 of the Passport (Entry
into India) Rules, 1950. Both the sentences were directed to run
concurrently.
[2] Charge against the appellant was framed with the
allegations that 10.9.2022 at about 2350 hours, he was found
approaching Indo-Bangla border fencing with 4 packets of dry
Ganja of weight 7.5 kg near BP No.2091/15S under Shalpukur BOP
and accordingly, he was tried under Section 20(b)(ii)(B) of NDPS
Act and also under Section 3 of Passport (Entry into India) Act,
1920 as he denied the charges.
[3] During trial, prosecution examined total of 8 witnesses
and finally, the Ld. Trial Court found the appellant guilty of above
said offences.
[4] Mr. S. Bhattacharjee, learned counsel for the appellant
mainly argued on the following points:
(i) The provision of Section 42 of NDPS Act was not
complied with, especially when seizure was effected after the
sunset.
(ii) The inventory was not certified by the Judicial
Magistrate and sample was not sent for chemical examination
within 72 hours of seizure. In this regard Ld. Counsel also relied on
a decision in case of Mohan Lal v.
of Hon’ble Supreme Court
State of Punjab, 2018 AIR (SC)3853; 2018 Legal Eagle (SC)
673, wherein reference was made by the Apex Court to the
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Standing Order No. 1 of 88 issued by the Narcotics Control Bureau
which prescribes that the sample should be dispatched to the
laboratory within 72 hours of seizure to avoid any legal objection.
(iii) There was no convincing evidence that before
sending the sample to the State Forensic Science Laboratory
(SFSL), it was kept in safe custody in the police Malkhana
inasmuch as Malkhana Register was not produced in the Court
during trial and the store keeper was also not examined.
(iv) As per site map, there was one house of a private
person near the place of occurrence but said person was not
examined.
(v) No pre-search memo was prepared before search
and recovery of contraband items.
(vi) According to PW-4, he got secret information from
Unit-G of BSF about trafficking of such contraband articles through
Indo-Bangla border but no person from said Unit-G was examined.
(vii) PW-3 stated that place of seizure was at Salpukur
and as per PW-4, it was at Birampur and, therefore, there was
serious doubt about the seizure as the place of occurrence was
shifted.
Mr. Bhattacharjee, learned counsel relied on some decisions of the
in relevant
Hon’ble Supreme Court which will be discussed
paragraph(s).
[5] (i) Mr. Ghosh, learned Addl. P.P. referring to sub-para
(ii) of paragraph 12 of the impugned judgment submitted that Ld.
Trial Court elaborately discussed about so called discrepancy as to
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the change of place of occurrence and came to a conclusive finding
halpukur-Biram located near BP No.2091/15S
that it was at “S pur”
and therefore, there was no confusion that place of seizure was
located in that particular point.
(ii) Mr. Ghosh, learned Addl. P.P. also argued that the
inventory prepared by the I/O was duly proved in the evidence and
seizure of said Ganja from the appellant was satisfactorily proved
by examining the relevant witnesses of the prosecution and
forensic report also corroborated that said seized item was dry
Ganja. Therefore, according to Ld. Addl. P.P., the charges were
duly proved against the appellant.
(iii) Mr. Ghosh, learned Addl. P.P. also refuted the
contention of Mr. Bhattacharjee, learned counsel submitting that
as per PW-3 and PW-8 seized items were kept in police station and
there was no cross-examination or suggestion from the side of
defence to indicate that seized item was mutilated. Therefore,
according to Mr. Ghosh, no material was there to create any doubt
about the safe custody of the seized contrabands. Finally he urged
for upholding the impugned judgment passed by the Ld. Trial
Court.
[6] Inspector, Sri Nandan Das (PW-3), who was the O/C of
Jatrapur PS at that time, lodged the FIR alleging, inter alia, that on
09.09.2022 on the basis of a secret information received through
Assistant Commandant, Ram Kumar Sah, Company Commander of
Shalpukur BOP 133 BN. BSF that some Ganja smugglers would be
crossing the Indo-Bangla border fence nearby BP No.2091/15S
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towards Bangladesh, he along with his police team and BSF
personnel set on a joint operation after obtaining permission from
SDPO Sonamura. After about 45 minutes they found one unknown
miscreant approaching Indo-Bangla border fencing with 4 nos of
sacks suspected to be of contraband items, and on chasing, said
person tried to cross the fencing by climbing towards Bangladesh
side. After he was detained, he disclosed his name to be Saha
Alam, having his residence at Comilla, Bangladesh and from those
4 sacks, total 7.5 kg suspected dry Ganja with 2 mobile handsets
containing 4 nos of SIM cards, one Indian Airtel SIM and 3 nos of
Bangladeshi SIM were recovered and seized.
[7] In his evidence, said inspector, Sri Nandan Das (PW-3)
stated in similar way what was described by him in his FIR. He also
stated that those 4 packets of Ganjas and 2 mobile handsets with
said SIM cards were seized on the spot in presence of witnesses.
The seizure list was marked as Exhibit-1. According to him, after
returning to the police station with the appellant and those seized
items, he lodged the FIR and endorsed the case to SI Shri H.
Darlong (PW-8) for investigation. In his evidence, he specified that
the place of occurrence was near gate No.2091/15S. In his cross-
examination, he admitted that there were some houses situated
near to the alleged place of occurrence.
[8] PW-4, Mr. Ram Kumar Sah, Company Commander of
133 BN. BSF posted at Shalpukur BOP also deposed in the same
manner and according to him, they set in ambush with the police
at Birampur area near said BP No.2091/15S. He also stated about
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seizure of those items from the appellant. He identified his
signature in the seizure list. In his cross-examination, he stated
that the place of occurrence was at Birampur and in the said joint
ambush, 2/3 nos. of TSR personnel and 4 nos. of police personnel
were also present.
[9] PW-5, another BSF officer namely, Mr. U.D. Bhatt, SI of
said 133 BN. BSF, also deposed in the same way about detention
of appellant with above said items and he also identified his
signature in the seizure list. He in his cross-examination confirmed
that seizure list was prepared at Birampur i.e. at the place of
occurrence and at that time both TSR and police personnel were
also present there.
[10] PW-1, Chiddik Miah, a police constable is a seizure
witness who also similarly deposed about said joint operation with
BSF personnel at Birampur area near BP No.2091/15S and
recovery of said suspected contraband items and mobile handsets
from the appellant. He also identified his signature in the related
seizure list. In his cross examination, he further confirmed that 4
nos. of packets tied up with rope were found in the possession of
the appellant.
[11] The seizure list dated 9.9.2022 of 2350 hours was
proved into evidence as Exhibit-1 which also corroborates about
seizure of said suspected Ganja and mobile handsets from the
appellant at Shalpukur area near Indo-Bangla border fencing at BP
No.2091/15S.
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[12] Through above said evidence, it is satisfactorily
established by the prosecution that some suspected contraband
items were seized on the alleged date and time near said gate
No.2091/15S situated at Birampur area which was within the
jurisdiction of Shalpukur BOP. Therefore, there is no confusion
about the place of occurrence and hence argument of Ld. Counsel,
Mr. Bhattacharjee about shifting of place of occurrence is not
convincing. The recovery and seizure of said suspected contraband
items and mobile handsets from the appellant were also
established by above said evidences.
[13] From the evidence, it is also established that O/C of
Jatrapur PS namely Sri Nandan Das, was present during search
and in fact, he himself seized those items on recovery from the
appellant. Said Sri Nandan Das was at that time a Gazetted officer
holding the post of Inspector of police.
[14] The prosecution also proved some documents under
Exhibit MO-(ii) which contain certified copies of GD entry Nos. 33
to 36 dated 9.9.2022 regarding receiving of informations through
mobile phone about crossing of Indo-Bangla border fence by
smugglers dealing with Ganja, sending of such information by him
to SDPO, Sonamura for obtaining permission and leaving of O.C.
from the police station for such raid after obtaining permission of
said SDPO. Said MO-(ii) also contains the communication dated
11.9.2022 addressed to SP, Sepahijala by said O.C. giving details
of such incident and recovery of such items to show compliance of
Section 42 of the NDPS Act. Seizure of said documents under MO-
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(ii) by the investigating officer from the police station was also
corroborated by Smt. Rumi Begam (PW-2), constable of Jatrapur
PS and SPO Bidya Dhar Datta (PW-6). Anyway when said inspector
Nandan Das (PW-3), himself being a Gazetted officer was present
during search and seizure, compliance of Section 42 was not
necessary.
[15] In State of Haryana v. Jarnail Singh, (2004) 5 SCC
188, the Apex Court observed that when a gazetted officer like
Superintendent of Police was a member of the search party and
was exercising his authority under Section 41 of the NDPS Act, the
proviso to Section 42 was not attracted. Lateron, in G. Srinivas
Goud v. State of A.P., (2005) 8 SCC 183, again same principle
was reiterated that the requirement under Section 42(2) need not
be extended to cases of arrest, search and seizure effected by
officers of gazetted rank. According to the Apex Court, the officer
of gazetted rank while authorising junior officers under Section
41(2) knows what he is requiring them to do and, therefore, there
is no need for reporting. For this reason Section 41 does not
contain any such requirement. The need for reporting under
Section 42(2) arises because the officer proceeds without
authorisation in terms of Section 41(1) or 41(2). The requirement
of informing the immediate official superior under Section 42(2),
has to be confined to cases where the action is taken by officers
below the rank of gazetted officers without authorisation. In view
of above, the argument as placed by Mr. Bhattacharjee, Ld.
Counsel regarding infraction of provisions of Section 42 of the Act
is not acceptable.
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[16] Mr. Suman Kumar Chakraborty (PW-7), the Deputy
Director of State Forensic Science laboratory Narsingarh, stated
that on 22.9.2022 they received one sealed packet from SDPO
Sonamura, with memo bearing No. 107 dated 21.9.2022 through
one constable and inside that packet there were 4 nos. of yellow
coloured envelopes with seal of Sonamura Police court under
marking A-1 to D-1 along with sample drawing certificate by
Judicial Magistrate First Class, Court No.2, Sonamura. According to
him, inside said each packet there were sealed transparent poly
packets containing some greenish brown plant and on
examination, same were found positive for presence of
Ganja(Cannabis). The remnants of those Exhibits were, thereafter,
returned separately under sealed cover. He also proved his
certificate marked as Exhibit-5.
[17] The investigating officer, Shri H. Darlong (PW-8),
deposed that on 13.9.2022, he prepared inventory of seized
articles and drew representative samples in presence of Judicial
Magistrate First Class, Court No.2, Sonamura and he proved that
inventory marked as Exhibit-9. As per said inventory, 2 samples
were drawn from each sack with marking A-1 & A-2 from one
sack, B-1 & B-2 from another sack, C-1 & C-2 and D-1 & D-2 from
2 other two sacks respectively and 60 gram from each sack was
taken out for such samples.
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[18] On consideration of the evidence of PW-7 and PW-8 and
also on consideration of the proved documents in that contexts,
some gross lapses are also noticed in the record in proving the
charge under NDPS Act against the appellant by the prosecution.
[19] The suspected contrabands were recovered and seized
on 9.9.2022 and according to I/O, inventory was prepared and
samples were collected on 13.9.2022. Both the O/C of the police
station (PW-3) and investigating officer (PW-8) are silent as to
where those seized items were kept from the time of seizure till
13.9.2022. There is also no evidence that during such period those
seized items were kept in any safe custody. According to the
investigating officer, the samples were drawn in presence of said
Magistrate on 13.9.2022 whereas, those samples were sent to
SFSL only on 21.9.2022 and there is also no evidence as to where
those items were kept during said period and why there was so
much delay in sending those samples to the SFSL. Nothing is also
shown that the samples and rest quantity of seized materials were
kept in safe custody.
[20] No certificate issued by said Judicial Magistrate
regarding the list of samples and photographs of such seized
contraband items as required under section 52A of NDPS Act were
also proved into evidence. Said Judicial Magistrate was neither
cited as witness of the case nor he was examined in the case.
Neither the prosecutor or the Court felt it necessary to summon
the Magistrate to prove such certificates though same were
available in the record. Even the rest part of seized contraband
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items or the rest part of samples which, as per the inventory, were
marked under A-2 to D-2, were also not produced before the Court
during trial. There is also no evidence that such seized items were
destructed meanwhile. As a consequence thereof, there is no
primary evidence available about seizure of such contraband
items.
[21] All these lapses in the evidence fails to connect the
alleged seized items recovered from the appellant with the
samples as were sent to the Forensic Laboratory and resultantly
the continuity of the entire chain of events to establish the charge
framed under the provision of NDPS Act has broken.
[22] In such factual milieu, reference to a decision of Apex
Court in the case of Ashok Alias Dangra Jaiswal v. State of
Madhya Pradesh, (2011) 5 SCC 123 appears to be noteworthy
and the relevant part of the observations of the Apex Court are as
follows:
10. The seizure of the alleged narcotic substance is shown
“
to have been made on 8-3-2005, at 11:45 in the evening.
The samples taken from the seized substance were sent to
the FSL on 10-3-2005, along with the draft, Ext. P-31. The
samples sent for forensic examination were, however, not
deposited at the FSL on that date but those came back to
the police station on 12-3-2005 due to some mistake in
the draft or with some query in respect of the draft. The
samples were sent back to the FSL on 14-3-2005, after
necessary corrections in the draft and/or giving reply to
the query and on that date the samples were accepted at
the FSL. From the time of the seizure in the late evening
of 8-3-2005, till their deposit in the FSL on 14-3-2005, it is
not clear where the samples were laid or were handled by
how many people and in what ways.
11. The FSL report came on 21-3-2005, and on that basis
the police submitted charge-sheet against the accused on
31-3-2005, but the alleged narcotic substance that was
seized from the accused, including the appellant was
deposited in the malkhana about two months later on 28-
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5-2005. There is no explanation where the seized
substance was kept in the meanwhile.
12. Last but not the least, the alleged narcotic powder
seized from the possession of the accused, including the
appellant was never produced before the trial court as a
material exhibit and once again there is no explanation for
its non-production. There is, thus, no evidence to connect
the forensic report with the substance that was seized
from the possession of the appellant or the other
accused.”
[23] Further, in Vijay Jain v. State of Madhya Pradesh,
(2013) 14 SCC 527 also, it was observed by the Apex Court that
in the trial for an offence under the NDPS Act, the prosecution is
under legal responsibility to establish by cogent evidences that the
contraband items were seized from the possession of the accused
and the best evidence to prove the same is required to be
produced during trial. In said case also the contraband materials
were not produced in the Court during trial and, therefore, it was
observed by the Apex Court that mere oral evidence that materials
were seized from the accused would not be sufficient to make out
a case under the provision of NDPS Act against the accused.
[24] Having reference to both the above said decisions, the
Apex Court later on in Hanif Khan Alias Annu Khan v. Central
Bureau of Narcotics, (2020) 16 SCC 709, as referred by Mr.
Bhattacharjee, learned counsel, observed that on the single
premise of a doubtful identity with regard to the sample seized
from the accused and that produced in the Court, the SFSL report
loses much of its significance entitling the accused to get benefit of
doubt.
[25] In view of above discussions, the Court has no
hesitation to conclude that the prosecution failed to prove the
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charge under Section 20(b)(ii)(B) of NDPS Act, 1985 against the
appellant and he is entitled to get acquittal from the said charge.
[26] So far the conviction under Section 3 of Passport (Entry
into India) Act, 1920 read with Rule 6 of the Passport (Entry into
India) Rules, 1950 is concerned, no challenge in this regard has
been put forward from the side of the appellant during oral
submission. Anyway, it is also not disputed that the appellant
being a Bangladeshi National has entered into India without valid
Passport. During examination under section 313 Cr.P.C, the
appellant himself has given his home address at Bangladesh and
simultaneously has also failed to produce any evidence to prove
his such entry into India as lawful and valid. Considering thus, the
conviction under above said provision is upheld.
[27] However, the Court also by the same time expresses its
disquiet without any quandary about the way asto how a serious
case of cross-border drug trafficking was flippantly dealt with by
the major stakeholders like police authority, prosecutor as well as
by the Court. Earlier, the Division Bench of this Court in the case
of Member Secretary, Teliamura Nagar Panchayet & anr. v.
Samar Bhusan Sarkar & anr. (Criminal Appeal No. 08 of
2012 decided on 21.2.2017) directed that all the trial judges to
remain alive at the time of recording of evidence and to actively
participate in the process and to control the criminal trial by such
active participation to find out the truth and to ensure justice. It
was also observed therein that the trial judge should be very
sensitive from the stage of framing of charge and must have an
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idea about the materials on record. Though he should not take the
role of a public prosecutor but he should ensure that the materials
on the basis of which charges have been framed are properly and
legally proved. Said judgment was also circulated to all the judicial
officers of the state.
[28]
Far way back in 2004 AD, Hon’ble Supreme Court in
case of Zahira Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158 reminded the trial judges about their solemn
duty of administering justice in accordance with law in the
following language:
“43. The courts have to take a participatory role in a trial. They
are not expected to be tape recorders to record whatever is being stated
by the witnesses. Section 311 of the Code and Section 165 of the
Evidence Act confer vast and wide powers on presiding officers of court
to elicit all necessary materials by playing an active role in the
evidence-collecting process. They have to monitor the proceedings in
aid of justice in a manner that something, which is not relevant, is not
unnecessarily brought into record. Even if the prosecutor is remiss in
some ways, it can control the proceedings effectively so that the
ultimate objective i.e. truth is arrived at. This becomes more necessary
where the court as reasons to believe that the prosecuting agency or
the prosecutor is not acting in the requisite manner. The court cannot
afford to be wishfully or pretend to be blissfully ignorant or oblivious to
such serious pitfalls or dereliction of duty on the part of the prosecuting
agency. The prosecutor who does not act fairly and acts more like a
counsel for the defence is a liability to the fair judicial system, and
courts could not also play into the hands of such prosecuting agency
showing indifference or adopting an attitude of total aloofness.”
Said principle has again been reiterated by 3-Judge
Bench of the Apex Court recently in the case of Anees v. State
Govt. of NCT, 2024 SCC OnLine SC 757. Therefore, there is no
gainsay that the trial Judges are required to be always alert and
active in the pursuit of truth while recording the evidence,
especially in criminal trial and are expected to act in a more
sensible manner to render justice to the parties. They are not only
to conduct the proceeding but also to control the proceeding.
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[29] In view of above, the appeal is partly-allowed. The
appellant is acquitted from the charge framed under Section
20(b)(ii)(B) of NDPS Act, 1985, but his conviction and sentence
under the Passport (Entry into India) Act, 1920 and related Rules
thereof are affirmed.
[30] He has already suffered the sentence imposed under
above said provision of Section 3 of Passport (Entry into India)
Act, 1920. Therefore, the Registry is directed to immediately issue
release warrant of the appellant, Saha Alam in connection with the
present case. The concerned Superintendent of Sonamura Sub-Jail
will take necessary step immediately for repatriation of the
appellant to Bangladesh in accordance with the procedure of law
as ordered by the Ld. Special Judge.
The Registry will also circulate the copy of this
judgment to all the Judicial Officers of the State.
The Director, Tripura Judicial Academy will organise a
refresher programme on investigation and trial under NDPS Act,
1985 involving the Special Judges, Prosecutors of the Trial Courts
and Police Officers dealing with cases under said Act, on any
suitable date.
Similar programme may also be organised by L.R. &
Secretary, Law Department, Govt. of Tripura in Law Training
Institute & Research Centre, Agartala comprising of such
Prosecutors and Police Officers.
All concerned be informed accordingly.
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[31] With the above said observations, decisions and in
above said terms, the appeal is disposed of.
Return LC Records with a copy of this judgment.
Pending application(s), if any, shall also stand disposed
of.
JUDGE
SATABDI Digitally signed by
SATABDI DUTTA
DUTTA Date: 2024.07.31
16:48:29 +05'30'
Dinashree