JUDGMENT
Alok Kumar Basu, J.
1. Two appellant-Bahadur Singh Gangdon and Krishna Bahadur Gangdon, national of Nepal, now in Jalpaiguri Central Jail preferred the present appeal challenging the order of conviction and sentence recorded against them by the learned Judge, Special Court, under the NDPS Act, Behrampur in the district of Murshidabad in connection with NDPS Case No. 13 of 1999.
2. The prosecution case in brief was that on 24th March, 1999 at the early hour, Superintendent of Customs, Behrampur along with the other officers intercepted a tourist bus proceeding towards Calcutta from Nepal and during that interception the two appellants were found in possession of a briefcase. The Superintendent of Customs and other officers brought the briefcase along with the appellants to their office and there in presence of local witnesses the briefcase was opened and 7.470 grams of charas were found kept concealed in the said briefcase.
3. The officers of the customs thereafter prepared seizure list in respect of the said charas and also took up samples in presence of witnesses.
4. In course of investigation samples were sent for chemical examination and on receipt of report from the chemical examiner ultimately the Superintendent of Customs filed a petition of complaint to initiate the prosecution case against both the appellants.
5. As the case started on the basis of a complaint the learned Judge allowed the prosecution to examine its witnesses before charge and after consideration of that evidence charge under Section 20(b)(II) of the NDPS Act, was thereafter framed against both the appellants.
6. The learned Judge after framing of charge allowed the prosecution to place its witnessess for cross-examination by the defence.
7. After completion of recording of evidence the learned Judge heard the submissions of both the prosecution and the defence and thereafter taking into account the fact and evidence on record the learned Judge was of the view that prosecution succeeded fully to establish its case that on 24th March, 1999, 7.470 grams of charas was recovered from the possession of the appellants and hence they contravened Section 20(b)(II) of the NDPS Act and accordingly the learned Judge passed the order of conviction and recorded the sentence.
8. Appearing in support of the present appeal Mr. Partha Sarathi Bhattacharya, has drawn our attention to the evidence on record, particularly the evidence of P.W.1 the Superintendent of Customs who lodged the complaint and also of P.W.2, who supported the case of detention, search, seizure and taking of sample. Mr. Bhattacharya submits that it is surprising to note that although P.W.1 led the searching party and the entire search and seizure was held in his presence that P.W. did not utter a single word during his examination-in-chief and he merely deposed that he prepared the complaint on perusal of official record. Mr. Bhattacharya submits that this statement of the P.W.1 gives a heavy jolt to the very basis of the prosecution case and it will not be unreasonable to hold relying on such evidence that the entire complaint was a handiwork of some officers of the Customs Department without getting the physical custody of the appellants or without making any recovery from the appellants as alleged.
9. Mr. Bhattacharya next submits that P.W.2 deposed before the Court that he took two 10 grams packet as sample from the seized article and those samples were sent for chemical examination. The same P.W. during his examination on recall deposed that subsequently he drew sample of 28 grams each from the seized article and those were sent for chemical examination.
10. Mr. Bhattacharya contends that there is no provision under the Act to take sample twice from the seized article and this itself casts a shadow of doubt about the entire story of search and seizure.
11. Mr. Bhattacharya contends that the report of the chemical examiner gives another story wherefrom it is evident that the examiner examined 28 grams of sample and this belies the earlier story of the prosecution that 10 grams of sample was taken and forwarded for chemical examination.
12. Mr. Bhattacharya, therefore, submits that after taking into consideration the entire evidence on record it will appear that nothing was recovered from the custody of the appellant and in fact, the appellants were brought in the office of the custom and thereafter the officers of the Customs Department manufactured and fabricated the seizure list and on the basis of such false and fabricated document a complaint was filed to compel the appellant to face a stringent trial. Mr. Bhattacharya submits that on the basis of facts and evidence on record the learned Judge was totally unjustified in placing any reliance on prosecution evidence and in recording the order of conviction as impugned in this judgment.
13. Mr. Goswami representing the State-respondent submits before us that P.W. 1 the complainant was present at the time of search and seizure and this has been duly corroborated by other witnesses. Mr. Goswami submits that there may be some minor discrepancy in the prosecution evidence regarding search and seizure and taking of sample but having regard to the broad spectrum of the prosecution evidence and considering the nationality of the present appellant and their interception in a tourist bus there are reasons to hold that the contraband articles were carried by them and brought to India and as the sample of the article indicated that the article was charas, a prohibitory article under the NDPS Act, the learned Judge did not commit any mistake either in fact or in law in recording the order of conviction and sentence.
14. We have heard Mr. Bhattacharya and Mr. Goswami at length in the background of fact and evidence on record. What troubled us on scanning of evidence is that in experience, apathiness to learn and lack of dedication in duty is rampant so far the investigation of the present case is concerned. Under the provision of law, customs officials under Section 42 are authorised to intercept any person possessing of any contraband article under the NDPS Act but wisdom demands that handling and further investigation of a case under the NDPS Act must be entrusted with the agency who has sufficient expertise in the matter.
15. We are constrained to make the above observation when we find from evidence that the Superintendent of Customs as P.W.1 did not utter a single word during his examination-in-chief regarding interception, search, seizure and taking of sample. It was expected that being the complainant and being the leader of the raiding party he would depose before the Court supporting the entire prosecution case. This type of evidence on the part of P.W.1, in our considered view, totally demolished the prosecution case.
16. Prom the evidence of P.W.2, again we find that this officer first deposed that he took sample of 10 grams of charas in two packets and at the same breath he deposed that subsequently he took 28 grams of sample from the seized article. It was not known to the officer concerned that under the Act and also under the general provision of Criminal Procedure Code sample can be taken only once for a seized article and there was no scope to take sample more than once which would render the very basis of the prosecution case weak and unacceptable in the eye of law.
17. It is also interesting to note that during trial neither the briefcase nor the seized article was produced from the custody of the Customs Department.
18. Thus, having regard to the position of persecution evidence on record, we hold that there is serious doubt as to the prosecution allegation regarding recovery of the contraband article from the possession of the present appellant and that apart the report of the chemical examiner also does not lend any support to the prosecution allegation.
19. The provision under the NDPS Act is very stringent so far punishment is concerned and for that reason alone the learned Trial Court must take all care and caution to satisfy itself before recording an order of conviction and sentence that all the provisions under the Act have been duly complied with and the learned Court must be satisfied that there was no other second scope but to hold that the contraband article was actually recovered from the custody of the appellant and from the contraband article sample was drawn in accordance with law and the chemical examiner duly supported that the sample was a contraband nature of article and only when the learned Trial Court would satisfy all these points, he would have no difficulty in passing the order of conviction and sentence. But, unfortunately, in this case the learned Trial Court also missed all the vital points which he ought to have taken care of before passing the order of conviction and sentence and for the reasons already recorded we are unable to pursuade ourselves to support his order of conviction and sentence which, in our considered opinion, was not based on proper appreciation of evidence. Accordingly, we find merit in the present appeal and we set aside the order of conviction and sentence. The appellants, who are in Jalpaiguri Central Jail at present be released immediately from custody, if they are not wanted in connection with any other case. Inform the Superintendent, Jalpaiguri Central Jail/Correctional Home at once by sending a copy of this judgment and order for due compliance without delay.
20. Let a copy of this judgment and order be also forwarded to the learned Trial Court along with LCR.
21. As we have noticed much infirmity in the entire process of investigation of the case and in filing of the complaint, we feel it our duty to draw the attention of Commissioner of Customs, Union of India so as to take necessary preventive action so that in future such negligence in the matter of detection of a crime of this nature is not repeated in the interest of justice.
Pranab Kumar Deb, J.
I agree.