In The hIgh CourT AT CAlCuTTA

Criminal Appellate Jurisdiction

Appellate Side
Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Md. Shabbar Rashidi

CRA (DB) 15 Of 2022

IA NO: C.R.A.N.1 of 2022

Hazarat Ali Molla @ Hazrat Ali Molla & Ors. .Appellant (In Jail)

Versus

The State Of West Bengal Respondent/Opposite Party

For The Appellants : Mr. Manjit Singh, Adv.

: Mr. Gaganjyot Singh, Adv.
: Mr. Biswajit Mal, Adv.
: Mr. Abhishek Bagal, Adv.
: Mr. Akbar Laskar, Adv.
For The State : Mr. Sanjoy Bardhan, Adv.
: Mr. Ranadeb Sengupta, Adv.
: Ms. Debjani Dasgupta, Adv.

Hearing Concluded On : April 04, 2023

Judgment On : May 08, 2023

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 Md. Shabbar Rashidi, J.

1. The appeal is directed against the judgment of

conviction dated December 08, 2021 and order of

sentence dated December 10, 2021, passed by learned

4th Additional Sessions Judge, Alipore, South 24

Parganas in connection with Sessions Trail No. 3(1) of

2018 arising out of Sessions Case No. 1 (9) Of 2017.

2. By the Impugned Judgement of Conviction, the

appellants were convicted for the offence punishable

under Section 20 (b)(ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985. By the impugned

order of sentence, all the three appellants were sentenced

to undergo rigorous imprisonment for 12 years and to

pay a fine of Rupees one lakh and in default of payment

of fine to undergo imprisonment for a further period of

six months.

3. On May 31, 2017, one Dababrata Sikder, sub-

inspector, ADRS, DD, lodged a written complaint with the

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 officer-in-charge of Taratala PS to the effect that on May

31, 2017 at about 14.30 hours, he received a credible

source information that male persons would be coming to

sell/supply charas in Taratala PS area in the afternoon.

The information was reduced into writing and forwarded

to the officer in charge ADRS, DD. Upon due permission,

a raiding team was formed at about 15. 00 hours. The de

facto complainant along with the raiding team left the

office at Lalbazar for the spot along with the raiding

team, source, weighing scale, narcotic drug testing kits,

packing materials and other accessories.

4. The raiding team reached near Hi-Tech centre, Hi-

Tech Logistics Ltd. on 1/1 Taratala Road at about 16. 30

hours. The source led the raiding team to the spot where

they started maintaining watch. At about 17. 00 hours,

the source pointed out towards male persons who were

coming along Taratala Road. The de facto complainant

detained the aforesaid three persons with the help of the

raiding team on the road in front of Hi-Tech Centre and

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 disclosed his identity and the purpose of their detention.

Meanwhile, a small crowd gathered. The de facto

complainant requested them to be a witness to the

search and seizure. Two persons from the crowd

volunteered to stand witness.

5. Upon interrogation, the three detained persons

disclosed their identity as the appellants. Thereafter, the

de facto complainant served written option to the

detained persons informing their legal right to be

searched in presence of a Magistrate or a Gazetted

Officer. The detained persons were also explained the

implication of the words Magistrate and Gazetted Officer.

The detained persons agreed to be searched on the spot

in presence of a Gazetted Officer and refused to go

anywhere else. A search for Gazetted Officer was made in

the locality but could not be found. The de facto

complainant informed his superior officer whereupon, at

about 19.00 hours, Inspector Tapan Kumar Mandal,

additional officer-in-charge, Taratala PS came to the spot

4
 in uniform. He was introduced as a Gazetted Officer to

the detained persons and the witnesses.

6. The said Gazetted Officer served the second

option in writing upon the detained persons whereupon

they reiterated to be searched at the spot in presence of a

Gazetted Officer. The detained persons agreed to search

the person of the searching officer and the raiding team

and upon such search, nothing objectionable could be

found.

7. Thereafter, the de facto complainant proceeded to

search the detainees. One black coloured bulletin packet

from the right hand of the appellant Hazrat Ali Molla,

which was found to contain five pieces of solid materials

of cannabis resin commonly called charas having the

characteristic smell of charas weighing about 356 grams

and cash of Rs. 110/- from his chest pocket was

recovered. On search of the appellant, Susanta Sarkar, a

black coloured polythene packet was found in his right

hand containing nine pieces of solid materials of

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 cannabis resin commonly known as charas having the

characteristic smell of charas weighing about 565 gm

and cash of Rs. 120/- from his chest pocket was

recovered. Similarly, upon search of the appellant Fajar

Ali Darji, one black coloured polythene packet was found

in his right hand containing 11 pieces of solid materials

of cannabis resin commonly known as charas having

characteristic smell weighing about 351 gm and cash of

Rs. 150/- from his chest pocket was recovered.

8. The recovered articles were tested by the de facto

complainant with the help of testing kit and were found

positive for the presence of charas. The recovered articles

were then weighed with the help of weighing machine

which showed a total of 1 kg and 272 grams. The

aforesaid contraband articles along with the cash

recovered from the possession of the appellants were

seized under a seizure list prepared by the de facto

complainant on May 31 2017. The seized articles and

cash were sealed and labelled separately with distinct

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 markings on the spot in presence of a Gazetted Officer

and the accused persons and all of them put their

signatures/left thumb impressions on the seizure list.

9. The written complaint also disclosed that the

detained persons failed to produce any satisfactory

explanation for the possession of charas. As such, they

were arrested at the place of detention at about 22.00

hours upon due service of the memo of arrest. The de

facto complainant also examined the witnesses and the

Gazetted Officer at this spot and recorded their

statements in the streetlight. Thereafter, the detained

persons along with the seized articles were brought to

Taratala Police Station together with the other relevant

documents concerning the case and the same were

handed over to the officer in charge with a request to

prepare an inventory list under the NDPS Act.

10. On the basis of such written complaint, Taratala

PS Case No. 100/2017 dated May 31, 2017 under

Section 20(b) (ii) (c)/29 of the Narcotic Drugs and

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 Psychotropic Substances Act, 1985 was started against

the appellants. The police took up an investigation and

on completion of the investigation submitted charge

sheet. Accordingly, charges under Section 20(b)(ii)(c)/29

of the Narcotic Drugs and Psychotropic Substances Act,

1985 were framed against the appellants on January 31,

2018, to which they pleaded not guilty and claimed to be

tried.

11. In order to bring home the charges, the

prosecution examined as many as 5 witnesses. In

addition, the prosecution also relied upon certain

documentary as well as material evidences.

12. Upon conclusion of the prosecution evidence, the

appellants were examined under Section 313 of the Code

of Criminal Procedure where the appellants claimed

innocence having been falsely implicated in the case. The

appellants adduced six defense witnesses in all. They

also relied upon certain documentary evidence which

were marked as Exhibit A and Exhibit B.

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13. The sub- inspector of police who conducted the

raid was examined as PW 1. He stated that on May 31,

2017, he received a source information regarding a

transaction of narcotic drugs. He informed the matter to

the officer in charge of his department in writing (Exhibit

1). After obtaining due permission from the Assistant

Commissioner, A. R. S., DD (Exhibit 2), he proceeded for

conducting raid along with a raiding team at about 15.

30 hours along with the source and being equipped with

testing kit, weighing scale, brass seal and other

necessary articles. They reached near Hi-Tech Logistic

under PS Taratala at about 16.30 hours.

14. It was further stated by PW 1 that the three

detainees agreed to be searched in presence of a Gazetted

Officer. Since PW 1 did not get a Gazetted Officer in the

locality, he informed his superior officer, the officer in

charge of ADSR, DD for arranging a Gazetted Officer.

Thereafter, the additional officer in charge came to the

place of occurrence in official robe. The entire matter was

9
 reported to his notice and, thereafter, he sought the

second option in writing upon the appellants (Exhibit 3).

15. After observing all legal formalities, PW 1

proceeded to search the appellants and on such search,

one (from each) black coloured polythene carry bag was

recovered from the possession of the three detained

persons containing 356 grams, 565 grams and 351

grams of charas from the respective possession of the

detained persons i.e. the appellants namely Hazrat Ali

Molla, Dinesh Sarkar and Fazar Ali Dorzi. Besides, a sum

of Rs. 110, Rs. 120 and Rs. 150 respectively, were also

recovered from the possession of the appellants. PW 1

also stated that after such search, the recovered articles

were seized under a seizure list prepared on the spot in

presence of the Gazetted Officer, the witnesses and the

detained persons who signed on the seizure list. Accused

Fazar Ali Dorzy put his Left Thumb Impression on the

seizure list. PW 1 tendered the seizure list which was

marked as Exhibit 4. He has also stated that he gave the

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 first option to the appellants in writing and the

appellants put their signature/Left Thumb Impression on

such option which were tendered in evidence and Marked

as Exhibit 5 collectively. PW 1 also stated that he

weighed the seized contraband and tested the same with

the help of testing kits. He also packed, labelled and

sealed the recovered articles.

16. PW 1 proved his signature on the label attached

to the sealed packet of the contraband opened in court

(Mat Exhibit I, II and III respectively). He also tendered

the packets containing the seized cash (Mat Exhibit IV, V

and VI respectively). He also proved his signature on the

labels attached to such packets.

17. PW 1 also stated that upon interrogation, the

appellants failed to produce any valid document or

satisfactory answer for the possession of contraband for

which the appellants were arrested under proper arrest

memo prepared at the place of occurrence. The

appellants signed/put their Left Thumb Impression on

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 such memo of arrest. Upon completion of the search and

seizure, PW 1 also examined the Gazetted Officer and the

witnesses under Section 161 of the Code of Criminal

Procedure.

18. Thereafter, PW 1 came back to Taratala PS with

the appellants and the seized articles. He prepared a

written complaint by typing the same in the computer of

the PS and handed over the same to the officer in charge

of Taratala PS together with the arrested accused persons

and the seized contraband. He tendered the written

complaint which was marked as Exhibit 12. PW 1 also

stated that after submitting such written complaint, he

returned to his office at Lalbazar and prepared a report

which he submitted to his superior. Such report was

marked as Exhibit 13.

19. The officer who acted as a Gazetted Officer

deposed as PW 2. He has stated that on May 31, 2017, a

search and seizure was conducted at 1/1, Taratala Road.

Being instructed by his superior, he went to the place of

12
 occurrence by lodging a GDE to act as a Gazetted Officer

at 19.00 hours. Going there, he was introduced by PW 12

with that three detained persons. He served the second

option upon the said persons. He also informed the

aforesaid persons if they were agreeable to be searched in

presence of a Gazetted Officer whereupon the appellants

agreed to be searched in his presence.

20. PW 2 also stated that after observing the

formalities, the detained persons were searched one by

one in his presence. Upon such search, contraband

charas and some cash money was recovered from the

respective possession of the three detained persons. The

contraband was tested with the help of testing kits which

tested positive for charas. He further stated that 356

grams of charas was recovered from Hazrat Ali Molla

whereas 565 grams of charas from Dinesh Sarkar and

351 grams of charas was recovered from the possession

of Fazar Ali Dorzi. The aforesaid articles were seized by

PW1 under a seizure list which was signed by PW2,

13
 besides the 2 independent witnesses and the accused

persons. He also stated that accused Fazar Ali Dorzi put

his Left Thumb Impression upon the seizure list. The

seized articles were packed, sealed and labeled by PW1

with distinct markings ‘A’ to ‘F’. The witness identified

the sealed packets and his signatures on its labels in

court. He has also stated that the appellants failed to give

any satisfactory answer for the possession of contraband

for which they were arrested. PW 2 also stated that he

was interrogated and his statement was recorded by PW

1 under Section 161 of the Code of Criminal Procedure.

PW 2 also lodged GDE after returning to Taratala PS at

about 23.10 hours. He has proved the GDEs lodged by

him which were marked Exhibit 14 & 15.

21. A police officer from Taratala PS deposed as PW

3. He stated that on May 31, 2017, he was directed by

the officer in charge to receive her written complaint

seized Alamats and the arrested accused persons. PW 3

received the aforesaid articles along with the arrested

14
 persons and lodged a GDE in this regard which he

tendered at the trial (Exhibit 16). PW 3 also filled up the

formal First Information Report (Exhibit 17) and started

case. He deposited the seized Alamats in the PS

Malkhana. PW3 proved the relevant entries in the

Malkhana Register which was marked Exhibit 18. He

also identified the appellants in court as the persons who

were handed over to him. He has also stated that he

received a total of six packets. He proved his signatures

on such packets in court.

22. He also produced the seized Alamats appellants

in court with a prayer for police custody which was

allowed. Later on he handed over the case diary, the

accused persons on police custody to SI Kalyan Biswas of

Narcotic Cell DD Lalbazar, in terms of a direction from

DCDD, Special and lodged a GDE in this regard which he

proved at the trial (Exhibit 19).

23. One of the independent witnesses was examined

as PW 4. He has stated that on May 31, 2017 at about

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 5.00/5.30 p.m. he was returning from Esplanade to his

house to Taratala Road. On the way he saw a gathering

near High-Tech Logistic Centre. He further stated that

while he was standing there, one police officer came and

disclosed that the persons have been apprehended for

dealing in the narcotic drugs. The aforesaid persons were

informed of their legal right to be searched in presence of

a Magistrate or a Gazetted Officer. Sometimes letter a

police officer namely Tapan Mandal arrived there.

24. PW 4 also stated that on search of the police

personnel, nothing was recovered. Thereafter the search

was conducted upon the detained persons. On such

search, narcotic substances were recovered from the

possession of one of the accused. PW 4 identified two of

the appellants namely Hazrat Ali Molla and Fazar Ali

dorzi in court. He also identified his signatures on

Exhibits 3,4 and 5 and also on the labels attached to the

Mat Exhibits. He further stated that his statement was

recorded on the place of occurrence itself.

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25. The second investigating officer was examined

as PW6. He has stated that on June 2, 2017 he was

directed by his superior to cause further investigation of

Taratala PS Case No 100/2017. Accordingly, he went to

PS, lodged a GDE and took over charge of investigation of

the said case. In course of investigation PW6 interrogated

the arrested accused persons. He also received the seized

alamats from Taratala PS Malkhana, making proper

entries in the Malkhana register. He also took over of the

custody arrested persons by making necessary entries in

the lock-up register. PW6 further stated that in course of

investigation he went to the First Information Report,

written complaint and other materials in the case diary.

He also recorded the statement of SI Goutam Roy under

section 161 of the code of criminal procedure, visited the

place of occurrence at 1/1 Taratala Road, in front of

High-Tech Centre. Thereafter, PW6 returned to Lalbazar,

deposited the seized alamats with the Malkhana of

Lalbazar. He has tendered the requisition and the good

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 and receipt issued by the Malkhana which were marked

as Exhibit 22 series.

26. PW5 also sent the seized alamats for chemical

examination on June 5, 2017 to State Drugs Control and

Research Laboratory (SDCR), Kolkata. On August 16,

2017, PW6 received the chemical examination report

which was tendered in evidence and was marked as

Exhibit 23. PW6 also stated that in course of his

investigation he took all the steps required under section

52 A of the Narcotic Drugs and Psychotropic Substances

act, 1985. An inventory of the seized articles was

prepared and certified by learned Judicial Magistrate,

Alipore. Such inventory was marked as Exhibit 24. The

photographs taken at the time of sampling and

certification of the seized articles were tendered in

evidence and marked as Exhibit 25 series. He also proved

his signature on the sample packets prepared in

presence of learned Judicial Magistrate.

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27. After the evidence on behalf of the prosecution

was concluded, the appellants were examined under

Section 313 of the Code of Criminal Procedure. In course

of such examination, the appellants claimed to be

innocent having committed no offence at all. They also

claimed to be falsely implicated in the case. One of the

appellants, in such examination, stated that he was

picked up by Swarupnagar Police at about 5.20 am on

May 31, 2017 from his house. He claimed that the police

was looking for one Pradip. He was asked by the police to

identify the house of said Pradip. There the parents and

wife of the said appellant i.e. Dinesh Sarkar also arrived.

He was asked to call the said Pradip over phone which he

did but thereafter, the phone went switched off. After that

the said appellant was taken to Lalbazar. He was also

taken to Taratala PS at midnight 12.00. His parents and

wife visited Lalbazar Police Station at 12.00 noon. At 1.00

pm he was taken to Taratala PS where he remained

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 detained for another two days. Thereafter, he was

brought to Lalbazar where he was detained for 13 days.

28. The appellant, Fazar Ali Dorzi, in his

examination under section 313 of the Code of Criminal

Procedure, also came up with a similar case that he was

picked up by Swarupnagar police from his residence. The

police came to his house and enquired about certain

phone numbers. The elder brother and wife of the said

appellant went in search of the appellant Fazar Ali Dorzi

to Swarupnagar police station. Thereafter three sons of

the said appellant went to Lalbazar were their phones

were returned. His sons also met him at Lalbazar at

about 11/12 o’clock in the loan and returned back to

their houses. On the said date at about 11/12 in the

night, the said appellant was taken to a police station

and back to Lalbazar and on the following day he was

produced before the court. The police took his police

custody and he was detained in Lalbazar for 12 days.

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29. Apart from the advancing arguments, it was

submitted on behalf of the appellants that the appellants

were not at all involved in connection with the case.

Nothing was recovered from their possession. It was

contended that the appellants were taken up from their

respective houses in the morning on May 31, 2017 by the

appellants personally and were taken to Lalbazar. The

prosecution stated that they were arrested from the place

of occurrence situated within Taratala P.S. in possession

of Cannabis resin is out and out false.

30. It is also contended on behalf of the appellants

that the case made out by the prosecution regarding the

raid conducted within the jurisdiction of Taratala PS and

a recovery of contraband articles from the possession of

the appellants has submitted that the police was in

search of one ‘Pradip’ and the appellants were arrested in

connection with the said search.

31. Learned advocate for the appellants also

challenged the credibility of the search and seizure. It

21
 was contended that the shop owner in front of whose

shop, the search and seizure is said to have taken place

was not examined as independent witness. On the

contrary, the two independent persons who stood witness

to the search and seizure were residents of a place far

away from the place of occurrence. Moreover, they were

not named in the written complaint or the GDE lodged by

the gazette officer. It was also contended that the

individual one and the independent witnesses was

examined on behalf of the prosecution. The other

independent witness did not adduce at the trial leading

to an adverse inference against the case of the

prosecution.

32. Learned advocate for the appellant also pointed

out certain discrepancies /contradictions in the

statement of the witness examined on behalf of the

prosecution. Referring to the deposition of PW4, it has

been pointed out that the said witnesses failed to identify

one of the appellants in Court. The same description of

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 the identification of the particulars recovered has also

been highlighted on behalf of the appellants. It has been

submitted that the statement made on behalf of PW4

raises a genuine doubt regarding his presence at the

place of occurrence wherefrom the search and seizure

was made.

33. Learned advocate for the appellants also

submits that the raiding team consisted of at least five

police personnel and out of them only one has been

examined as prosecution witness. It is submitted that no

explanation whatsoever has been offered on behalf of the

prosecution for non-production of the other members of

the raiding team which necessarily entails an adverse

inference. Doubts have been expressed on behalf of the

appellants over the fact that the members of the raiding

team have not signed on any documents including the

seizure list. Moreover, the driver of the vehicle by which

the raiding team reached the place of occurrence was not

examined. No GDE in this regard was lodged and the

23
 official vehicle was produced on behalf of the prosecution

to establish allocation of the vehicle for the purpose of

conducting search and seizure. Learned advocate for the

appellants also submitted the presence of the gazette

officer at the relevant times and place of occurrence has

been challenged on the ground that PW2 claimed to have

written the second option in his own hand writing but

later on it was turned out to be written by PW1 under the

dictation of PW2. In the assessment of learned advocate

for the appellants, the discrepancy was of such a

magnitude which vitiated the entire trial.

34. It was further contended on behalf of the

appellants that the polythene packets which originally

contained the seized contraband were not produced at

the trial. In support of such contention, learned advocate

for the appellant relied upon the case of Noor Aga Versus

State of Punjab and anr.) reported in (2008) 16 SCC

417. Relying upon the aforesaid decision, it was further

contended that the seized contraband articles were also

24
 not produced at the trial for which the trial was vitiated

and the appellant should not have been convicted.

35. It was further contended that the inventory of the

seized contraband and its photographs prepared in the

presence of learned Judicial Magistrate were vague and

insufficient which could not have been treated as a

substitute of the production of the original seized

contraband. It has been contended on behalf of the

learned advocate for the appellants as the provisions

contained under Section 52 A (4) of the NDPS Act

contemplates for proof of the inventory, photographs and

the list of samples. In the instant case, however, the

prosecution has proved the photographs of the envelope

allegedly containing the samples instead of samples

itself, which according to the learned advocate for the

appellant is fatal to the case of the prosecution.

Moreover, the inventory contained no particulars of the

contents of the envelopes.

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36. The appellants adduced six defense witnesses in

support of their case.

37. The wife of appellant Hazrat Ali Molla deposed as

DW 1. She stated that on May 31, 2017 at about 5:30

AM, police came to her house and took her husband. She

further stated that at first she did not open the gate as

the police asked her husband to meet the officer in

charge. Later on, if intervention of local panchayat

Prodhan, the police was able to take her husband for

interrogation. At about 1 PM on the said date, she went

to Lalbazar and had her entry through Gate No. 1 by

putting her Left Thumb Impression. Her identity was

recorded. She was accompanied by her son Hasan Molla.

She further stated that while talking to her husband she

noticed to other persons present there. She later came to

know of the said persons as Danish Sarkar and Fazar Ali

Dorzi. She has also stated in her deposition that at that

time she also noticed that parents and wife of appellant

Dinesh Sarkar and three sons of Fazar Ali Dorzi were

26
 also present. She left Lalbazar through Gate No. 2 where

the permission slips were taken back. She has also

stated that she was informed that her husband would be

released on the following day.

38. The son of appellant Hazrat Ali Molla was examined

as DW 2. He has corroborated the statement made by her

mother DW 1. He stated that on May 31, 2017 at 5:30

AM, police persons came to his house. They called upon

his father and disclosed that they were from Lalbazar. At

first father of DW 2 did not open the gate but later on

upon intervention of the local panchayat Prodhan namely

Din Mohamed, his father agreed to cooperate. PW 2 was

asked by the police to come to Lalbazar while taking his

father. Accordingly he went to meet his father at about 1

PM with his mother. He was informed by his mother that

she had talked to his father and that he could not be

released due to paucity of time.

39. The son of the appellant Fazar Ali Dorzi deposed as

DW 3. He stated that on made 31 2017 at about three a

27
in the morning, when they were taking ‘seheri’ with his

father and other family members police came and asked

for his father. His father was taken by the police. On

enquiry, he was informed that his father was taken to the

officer in charge for interrogation at Lalbazar. DW 3 also

stated that on the same day at about 1 PM he along with

his two brothers Bablu Dorzi and Safikur dorzi, he went

to meet his father at Lalbazar. There the noticed that the

parents and wife of the appellant Dinesh were also

present there. DW 3 also stated that he entered into

Lalbazar through Gate No.1 by putting their signature.

His photographs were also taken and when he met his

father, the appellants Dinesh Sarkar and Hazrat Ali Molla

were also present. The wife of Hazrat Ali Molla was also

present there. He was assured by the police personnel

that his father would be released on the following day. He

left Lalbazar through Gate No. 2 where the gate passes

were taken back.

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40. Brother of DW 3 deposed as DW 4. He has made a

statement similar to DW 3. He stated that on May 31,

2017 at about 3 AM in the morning when his father and

other family members were observing sshery’, his father

was arrested by police from Lalbazar. He also stated that

on the said date he along with his two brothers visited

Lalbazar at about 1.30/2.00 p.m. In the morning, they

visited Swarupnagar PS. He further stated that they

entered into Lalbazar through Gate No. 1 where his

signature and photographs were taken. He met his father

and noticed that appellant Dinesh and one another

person were also there. DW 4 further stated that he was

informed that the officer in charge had some talks with

his father and he will be released thereafter.

Subsequently he came to know that his father was

arrested in connection with a case of Taratala PS. He left

Lalbazar through Gate No. 2.

41. Another brother of DW3 and DW4 deposed as DW 5.

He has corroborated the statements made by DW 3 and

29
 DW 4. He also visited Lalbazar with his brothers to meet

his father. He claimed to have entered Lalbazar through

Gate No. 1 at about 1 PM. His signature’s and

photographs were taken at the time of entry. Thereafter

he met his father where the other appellant Dinesh and

his family members were also present. He has also stated

that he was assured by police that his father will be

released on the following day whereupon he along with

his brothers exited through Gate No. 2.

42. The Punchayat Prodhan, Sk. Din Mohamed was

examined as DW 6. He tendered to the documents

regarding his candidature as Prodhan and that he was

put on. In his deposition, he stated that on May 31,

2017, at about 5:30 AM in the morning he received a

phone call from the appellant Hazrat Ali Molla informing

him that police has come to his house. DW 6 rushed to

the house of the said appellant and found appellant

Hazrat Ali Molla and his wife with his sons Hasan Molla

Mukul Molla inside the house. He also noticed police

30
 persons present there. They disclosed that they

wherefrom Lalbazar PS and wanted to take appellant

Hazrat Ali Molla to Lalbazar for some interrogation. He

also stated that he believed the statement of the police

personnel and persuaded the appellant and his family

members to cooperate whereupon the appellant Hazrat

Ali Molla agreed to accompany the police. Thereafter he

was taken by the police. DW 6 also advised the wife and

sons of the said appellant to visit Lalbazar which they

did. After returning from Lalbazar, the sons of the

appellant told him that his father acted on the assurance

of DW 6 but the police did not keep their assurance and

arrested their father in a heavy case.

43. According to the case of the prosecution, on the

basis of the source information the raiding officer

proceeded to conduct the raid at 1/1 Taratala Road in

front of Hi-tech Centre. Therefore, he nabbed the three

appellants and on search, the narcotic contrabands in

the category of charas were recovered from their

31
possession. The evidence of the officer conducting search

and seizure, PW1 discloses that 356 grams of charas and

a sum of Rs. 110/- was recovered from the possession of

the appellant Hazrat Ali Molla. 565 grams of charas and

a sum of Rs. 120/- from the possession of the appellant

Dinesh Sarkar and 351 grams of charas and a sum of Rs.

150/- was recovered from the possession of the accused

Fazar Ali Darji. The evidence on record also goes to show

that the appellants were first detained on the basis of the

source information. Since a personal search was

proposed, a notice under Section 50 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 being

option one was duly served upon the detained persons.

Exhibit 5 series are the option from which were served

upon the appellants. Such exhibit contains the signature

of the appellant Hazrat Ali Molla and Dinesh Sarkar and

left thumb impression of the Fazar Ali Darji. It also bears

the signature of the witnesses and also signature of at

least one of the members of the raiding team.

32
44. According to PW1, upon service of the notice

under Section 50 of the NDPS Act, when the appellants

opted to be searched in presence of a gazette officer, he

searched for a gazette officer in the locality and having

failed to find such officer, he informed the matter to his

superior. Accordingly, being instructed by his superior

and making relevant entries in a GDE, PW2 arrived at the

place of occurrence to act as a gazette officer being the

additional officer-in-charge of Taratala PS. Upon his

arrival at the place of occurrence, PW2 served the second

option upon the appellant which was also received and

signed by the appellant. The appellant Fazar Ali Darji put

his LTI on the second option. The second option was also

signed by the independent witnesses as well as the

members of the raiding team Exhibit 3 series is such

signature upon the form duly signed by the appellant.

Therefore, on the basis of such evidence including

Exhibit 3 series and exhibit 5 series, it is well-established

that the search and seizure was made at 1/1 Taratala

33
 Road in front of Hi-tech Centre, Hi-tech logistic limited in

due compliance with the provisions of Section 50 of the

NDPS Act.

45. As noted above, contraband charas were

recovered from the possession of the appellants in course

of such search which was seized by PW1 under a seizure

list prepared at the place of occurrence (Exhibit 4). The

said seizure list dated May 31, 2017 was also signed by

the appellants. The appellant Fazar Ali Darji put his left

hand impression on it. It also bore the signature of the

independent witnesses as well as the members of the

raiding team. No explanation whatsoever has been

advanced on behalf of the appellants regarding the

signature / left thumb impression on the search and

seizure list. Subsequently, the appellants were arrested,

memo of arrest Exhibit 6, Exhibit 7 and Exhibit 8 and

the inspection memos Exhibit 9, Exhibit 10 and Exhibit

11 also bear the signature/left thumb impression of the

appellants. Thereafter, the appellants were taken to

34
 Taratala PS where written complaint was lodged by PW1

(Exhibit 12). On the basis of such written complaint,

specific case under Section 20 (b) (ii) (c) / 29 of the NDPS

Act being Taratala PS case dated May 31, 2017 was

started against the appellants (Exhibit 17).

46. According to the statement of PW1, upon search

and seizure and recovery of narcotic contrabrands from

the possession of the appellants, the seized articles were

duly sealed and labeled. The seized articles under seal

and label were handed over to the officer-in-charge,

Taratala PS. PW3 in his deposition has stated that he

filled up the formal FIR (Exhibit 17) and started the

specific case. He also received the written complaint

together with the accused persons and the seized articles

under the direction from the officer-in-charge of Taratala

PS which he committed after lodging a GDE in this

regard (Exhibit 18). He has also stated that he deposited

the seized articles in the PS Malkhana. He tendered the

relevant entries in the Malkhana register which was

35
 marked as Exhibit 18. Exhibit 18 goes to show that these

packets containing specific markings being Exhibit A to

Exhibit F were deposited with the Malkhana register. He

also identified the appellant persons who were handed

over to him by the police officers of ADRS. On May 31,

2017, PW3 also proved the sealed packets of the seized

articles which were marked as MAT Exhibit I to MAT

Exhibit VI respectively and the signature thereon. He

further stated that under the direction from the Deputy

Commissioner, Detective Department, he handed over

the investigation of the case to PW5.

47. PW5 in his deposition acknowledged being the

second investigating officer of this case, the receipt of the

docket. He corroborated the testimony of PW3 that he

endorese with the investigation of the case as per the

direction of the Deputy Commissioner, Detective

Department Special on June 02, 2017. Being so endorsed

with the investigation, he made that the officer-in-charge

of Taratala PS and the previous investigating officer.

36
Thereafter, he received the case diary and the accused

persons whom he identified at the trial. He further

received the seized articles being marked with A,B,C,D,E

and F on proper receipt in the Malkhana register. The

receipt in the register was marked as Exhibit 18. Exhibit

22 series goes to show that the second Investigating

Officer deposited the seized articles with the Lalbazar

Malkhana after receiving the same from the Taratala PS.

He send those articles for chemical examination to

SDCRL, Kolkata on June 05, 2017 and received its report

on August 16, 2017(Exhibt 23). Thereafter, he submitted

the charge sheet in the case. PW5 has also stated that he

took steps for preparation of inventory and photographs

of the seized articles in terms of Section 52 of the NDPS

Act. The inventory and the photographs prepared and

taken in presence of the learned Judicial Magistrate, 7th

Court at Alipore was duly certified by the said magistrate

(Exhibit 24 and 27). PW5 has also identified the packets

containing the seized articles produced in court, which

37
 were earlier received by him (MAT Exhibit I to MAT

Exhibit VI). Besides that, PW5 also stated that sampling

was also done and he identified the sample packet

prepared and certified by the learned magistrate (MAT

Exhibit VII, VIII and IX) together with his signatures on

such sample packets.

48. Therefore, from the evidence on record, it

transpires that the appellants were apprehended at 1/1

Taratala Road in front of Hi-tech Logistic Limited. A

search on their person was conducted after due service of

notices under Section 50 of the NDPS Act. A Gazetted

Officer, PW2 was engaged in the process of such search.

The gazette officer PW 2 also served the second option

upon the appellants. The appellants opted and agreed in

writing to be searched in presence of gazette officer. Upon

such search being conducted by PW1 in presence of PW2

and independent witnesses, contraband charas was

recovered from the possession of the appellants. The

appellants failed to give any satisfactory answer

38
 regarding the possession of such contraband for which

they were arrested and the contrabands recovered from

their possession were seized. No plausible explanation is

forthcoming on the part of the appellants regarding their

signatures /left thumb impressions on the seizure list 4,

the option forms under section 50 of the NDPS Act being

Exhibit 3 series and Exhibit 5 series. The appellants also

proved their signatures / left thumb impressions on the

memo of arrest and the inspection memo from which

they were arrested. There is no explanation regarding

their signatures /left thumb impressions of such arrest

memo Exhibits 6,7,8,9 and 11.

49. Thereafter, PW1 brought the seized articles and

the appellants to Taratala PS where he lodged the written

complaint (Exhibit 12) on the basis of which a specific

case was started against the appellants under the

provisions of the Narcotic Drugs and Psychotropic

Substances Act, 1985. With the help of the aforesaid

evidence, it is evident that the prosecution has been able

39
to prove that the appellants were found in possession of

the narcotic contraband under the category of Charas.

The seized articles were sent for chemical examination by

PW5. PW5 also received the report with regard to the

aforesaid articles from the SDCRL, Kolkata. Exhibit 23 is

the said report which proves that the articles seizesd

from the possession of the appellants were charas which

fell under the purview of the Narcotic and Psychotropic

Substances Act, 1985. It further transpires from the

evidence on record that the investigating officer applied

for the said certification of the inventory and photographs

of the seized articles which was done by learned 7th

Judicial Magistrate, Alipore being Exhibit 24. The

sampling was also made in presence of the learned

Magistrate and the sample packets were produced in

Court which were identified by the investigating officer

PW5 as Exhibit 7,8 and 9. Such evidence on behalf of the

prosecution goes to establish that the appellants were

found in illegal possession of charas.

40
50. A case has been made out on behalf of the

appellants that having been falsely implicated in this

case. It is therefore a positive case that they were picked

up by the police from their respective residences and

were planted in the case with an allegation that they were

carrying narcotic contraband. They have claimed to have

been picked up in the early morning of May 31, 2017 and

were shown in possession of narcotic substances at

Taratala Road in the evening. In support of such case,

the appellants have adduced six defence witnesses. The

defence witnesses have stated that the appellants were

picked up by the police in the early morning. They have

also stated that the parents, wives and the children of the

appellants visited Lalbazar. They met with the appellants

in Lalbazar and assured by the police that the appellants

would be released. Almost all the witnesses on behalf of

the defence have stated that they entered into Lalbazar

through Gate No. 1. Their signatures and photography

were taken at the time of entry. After meeting the

41
 appellants, they left Lalbzar through Gate No. 2 where

the visiting passes were surrendered by DW1 to DW5.

They were assured by the police that the appellants

would be released but later on they came to know that

the appellants were implicated in this case.

51. Besides the oral action of the defence witnesses,

nothing has been produced on behalf of the defence that

the appellants were actually in their village and

residences when they were picked up by the police.

Although they have stated that they met with the

appellants at Lalbazar on that very day i.e. on May 31,

2017 and they were issued with visiting pass for entry

into the Lalbazards premises but no evidence in this

regard has been produced on behalf of the appellants. No

steps either were taken on behalf of the appellants for the

production of the visitors’ register, CCTV footage from the

register containing the entries regarding issuance of

visitors’ passes to establish that the defence witnesses

actually visited Lalbazar premises on the date they

42
 claimed to have visited. The evidence itself on behalf of

the defence has also not been able to establish that the

defence witnesses actually visited Lalbazar premises in

order to meet the appellants and that they were assured

by the police that the appellants would be released . In

view of that facts, we are of the opinion that the

appellants have not been able to establish conclusively

that they were picked up by the police from their

respective residences in the early morning of May 31,

2017.

52. One of the appellants is said to have given a call

upon the mobile of one Pradip at the request of the

police. It has been stated that after such call by the said

appellant, the said Pradip allegedly switched off his

mobile. The appellants could have taken steps to bring

the call detail reports on record in order to establish that

he actually called in the mobile of the aforesaid Pradip.

53. As noted above, the appellants have claimed to

have been planted in this case deliberately by the police.

43
 No case of alibi has been made out on behalf of the

appellants. As such, the case of Darshan Singh versus

State of Punjab (2016) 3 SCC 37 and Vijay Pal versus

State of Haryana has no manner of application in the

facts and circumstances of the present case.

54. Learned advocate for the appellant has also taken

up a plea that the weight of the seized articles from the

possession of the appellants is not consistent with that

sent to SDCRL, Kolkata for chemical examination. In the

case of Rajesh Jagadamba Avasthi reported in (2005) 9

SCC 773, the Hon’ble Supreme Court was pleased to held

that,

“14. We do not find it possible to uphold this

finding of the High Court. The appellant was

charged of having been found in possession of

charas weighing 180.70 gm. The charas

recovered from him was packed and sealed in

two envelopes. When the said envelopes were

opened in the laboratory by the Junior Scientific

44
Officer, PW1, he found the quantity to be

different. While in one envelope the difference

was only minimal, in the other the difference in

weight was significant. The High Court itself

found that it could not be described as a mere

minor discrepancy. Learned counsel rightly

submitted before us that the High Court was not

justified in upholding the conviction of the

appellant on the basis of what was recovered

only from envelope A ignoring the quantity of

charas found in envelope B. This is because

there was only one search and seizure, and

whatever was recovered from the appellant was

packed in two envelopes. The credibility of the

recovery proceeding is considerably eroded if it

is found that the quantity actually found by PW1

was less than the quantity sealed and sent to

him. As he rightly emphasized, the question was

not how much was seized, but whether there was

45
 an actual seizure, and whether what was seized

was really sent for chemical analysis to PW1.

The prosecution has not been able to explain

this discrepancy and, therefore, it renders the

case of the prosecution doubtful.”

55. However, in the instant case, as it transpires

from the evidence on record that 356 grams + 565 grams

+351 grams i.e. a total of 1272 grams of charas was

seized from the possession of the three appellants.

Exhibit 24 goes to show that 1212 grams of seized

contraband was certified by the learned Magistrate. The

chemical examiner found remnant weight of 1275 grams

of the seized contraband which was received by him. The

chemical examiner received the said articles with intact

seal which tallied with its specimen. The difference in

weight of the seized contraband if any is too minimal to

tell upon the veracity of the search and seizure. On such

proposition, Learned advocate for the State has relied

46
 upon the case of State by CBI Vs Dilbagh (2004)13 SCC

99 wherein it was laid down by the Hon’ble Court that,

“11. It was next urged that in view of the

difference in weight, this Court should give

benefit of doubt to the respondent. It was urged

that difference in weight supports the

respondent that he has been falsely implicated

in this case. In view of the evidence, including

the evidence of the independent witnesses it is

not possible to accept this submission. In our

view, the defence taken appears to be highly

improbable.”

56. Learned advocate for the appellant relied upon

the case of State of Rajasthan Vs. Gurmail Singh:

(2005) 3 SCC 59. The said case, the Hon’ble Supreme

Court found the link evidence adduced on behalf of the

prosecution and found satisfactory and on the basis of

such evidence was pleased to uphold the acquittal.

However, in the present case, there is convincing

47
 evidence that the seized articles were brought to Taltala

PS after completion of the search and seizure. It was

deposited that the Malkhana of Taratala PS under proper

entries made in the Malkhana register (Exhibit 18) on the

date of the search and seizure i.e. on May 31, 2017. The

said articles were received by PW5 on proper receipt in

the Malkhana register on June 2, 2017 and the same was

deposited with the Malkhana of Lalbazar Narcotic Cell

where from it was sent for chemical examination on June

04, 2017. There appears to be no discrepancy in the

chain of custody of the seized articles right from the time

of its seizure till it was sent for chemical examination to

State Drug Control and Research Laboratory (SDCRL),

Kolkata. The chain of custody of such article is complete

and compact. Therefore, there is nothing on record to

suggest any hole in the custody of the seized Alamats.

57. The learned advocate for the appellant also relied

upon (2008) 16 SCC 417 Noor Aga versus State of Punjab

and Anr. on the proposition that the original polythene

48
packets recovered containing the contraband seized from

the possession of the appellants were not produced

before the Court. The evidence on record goes to

establish that the contrabands were seized and upon

such seizure, the contrabands were packed, sealed and

labeled by the searching officer. These were deposited

with the Malkhana of Taratala PS under the control of

the first investigating officer. Later on, the second

investigating officer received the same and applied for its

sampling inventory and photography. The same were

done in presence of learned Magistrate and thereafter the

articles were sent for chemical examination, the report of

the chemical examiner together with the sealed packets

so sent for chemical examination were proved at the trial.

Mere non-production of the polythene packets which

contained the contraband at the time of its seizure from

the possession of the appellants cannot vitiate the trial.

The appellant has not been able to prove any prejudice

cause due to non-production of the polythene packets.

49
58. On such proposition, the learned advocate for

the State has relied upon the decision in the case of

State of Rajasthan versus Sahi Ram (2019) 10 SCC

649 and Than Kunwar vs. State of Haryana (2020) 5

SCC 260. The Hon’ble Supreme in the case of Than

Kunwar (Supra) was pleased to hold in following terms

that’s to say:

“30. The Court also went to hold in Sahi

Ram [State of Rajasthan v. Sahi Ram, (2019) 10

SCC 649 : (2020) 1 SCC (Cri) 85] that if seizure

is otherwise proved on record and it is not even

doubted or disputed, it need not be placed

before the Court. The Court further held that if

the seizure is otherwise proved what is required

to be proved is the fact that samples taken out

of a contraband are kept intact. This Court held

as follows : (SCC pp. 657-58, paras 15-16 & 18)

“15. It is true that in all the aforesaid cases

submission was advanced on behalf of the

50
accused that failure to produce contraband

material before the court ought to result in

acquittal of the accused. However, in none of

the aforesaid cases the said submission

singularly weighed with this Court to extend

benefit of acquittal only on that ground. As is

clear from the decision of this Court

in Jitendra [Jitendra v. State of M.P., (2004) 10

SCC 562 : 2004 SCC (Cri) 2028] , apart from the

aforesaid submission other facets of the matter

also weighed with the court which is evident

from paras 7 to 9 of the decision. Similarly

in Ashok [Ashok v. State of M.P., (2011) 5 SCC

123 : (2011) 2 SCC (Cri) 547] , the fact that there

was no explanation where the seized substance

was kept (para 11) and the further fact that

there was no evidence to connect the forensic

report with the substance that was seized (para

12) were also relied upon while extending

51
benefit of doubt in favour of the accused.

Similarly, in Vijay Jain [Vijay Jain v. State of

M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276]

, the fact that the evidence on record did not

establish that the material was seized from the

appellants, was one of the relevant

circumstances. In the latest decision of this

Court in Vijay Pandey [Vijay Pandey v. State of

U.P., (2019) 18 SCC 215] , again the fact that

there was no evidence to connect the forensic

report with the substance that was seized was

also relied upon to extend the benefit of

acquittal.

16. It is thus clear that in none of the

decisions of this Court, non-production of the

contraband material before the court has

singularly been found to be sufficient to grant

the benefit of acquittal.

***

52
 18. If the seizure of the material is otherwise

proved on record and is not even doubted or

disputed, the entire contraband material need

not be placed before the court. If the seizure is

otherwise not in doubt, there is no requirement

that the entire material ought to be produced

before the court. At times the material could be

so bulky, for instance as in the present material

when those 7 bags weighed 223 kg that it may

not be possible and feasible to produce the

entire bulk before the court. If the seizure is

otherwise proved, what is required to be proved

is the fact that the samples taken from and out

of the contraband material were kept intact,

that when the samples were submitted for

forensic examination the seals were intact, that

the report of the forensic experts shows the

potency, nature and quality of the contraband

material and that based on such material, the

53
 essential ingredients constituting an offence

are made out.”

59. Therefore, as noted above, in the instant case,

since the chain of the seized articles proved convincingly

on behalf of the accused prosecution. Non-production of

the polythene packets does not vitiate the case of the

prosecution.

60. The learned advocate for the State has relied

upon the case of Surindar Kumar versus State of

Punjab (2020) 2 SCC 563. In the aforesaid decision, it

was observed by the Hon’ble Supreme Court quoting the

case of Jarlail Singh versus State of Punjab that merely

because prosecution did not examine any independent

witnesses, would not necessarily lead to conclusion that

the accused was falsely implicated. The evidence of

official witnesses cannot be distrusted and disbelieved

merely on account of their official status. In the instant

case, however, one of the witnesses to the search and

seizure has not been examined as PW4 and he has amply

54
 corroborated the case of the prosecution. The defence

was not able to extract anything favourable to them or

stated the credibility of such witnesses upon his cross-

examination.

61. On the basis of the discussion made

hereinbefore, we are convinced that the prosecution

has been able to prove the charges leveled against the

appellants/convicts with the help of convincing evidence.

The impugned judgment of conviction dated December

08, 2021 and order of sentence dated December 10,

2021, passed by the learned 4th Additional Sessions

Judge, Alipore, South 24 Parganas in connection with

Sessions Trail No. 3(1) of 2018 appears to be well

founded on the basis of convincing evidences, sufficient

enough to base a conviction upon and does not warrant

interference in the facts and circumstances of the case.

We affirm the same.

62. Accordingly, the appeal being CRA(DB)15 of 2022

& IA NO: C.R.A.N. 1 of 2022 are hereby dismissed.

55
63. In view of the disposal of the appeal, no

interlocutory application survives. Consequently,

connected applications, if any, shall stand dismissed.

64. Trial Court records along with a copy of this

judgment and order be sent transmitted, at once, to the

learned Trial Court for necessary action.

65. Period of detention already undergone by the

appellants shall be set of against the substantive

punishment in terms of the provisions contained in

Section 428 of the Code of Criminal Procedure.

66. Urgent Photostat certified copy of this order,

if applied for, be supplied to the parties on priority basis

upon compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]

67. I agree.

[DEBANGSU BASAK, J.]

56