SEKHAR SUMAN VERMA Vs. SUPDT. OF N.C.B. & ANR. - NDPS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 317 of 2006, Judgment Date: Jun 29, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 317 OF 2006
Sekhar Suman Verma Appellant(s)
VERSUS
The Superintendent of N.C.B. & Anr. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment and order dated
31.08.2004 passed by the High Court of Calcutta in C.R.A. No. 269 of
2003 whereby the Division Bench of the High Court dismissed the appeal
filed by the appellant herein and affirmed the orders dated
11.04.2002 and 12.04.2002 of the Special Judge, N.D.P.S. Act and VIth
Bench, City Sessions Court at Calcutta in N.D.P.S. Case No. 11 of 1998
convicting the appellant herein under Section 21 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 ( hereinafter referred to as
“the NDPS Act”) and sentencing him to suffer rigorous imprisonment for
ten years and to pay a fine of Rs.1,00,000/-, in default, to suffer
further rigorous imprisonment for one year.
2) The case of the prosecution is as under:
Acting on an information received on 21.05.1998, a batch of
officers of N.C.B., EZU, Calcutta led by a Gazetted Officer proceeded
for New Sarat Lodge at 77/1A, Acharya Prafulla Chandra Road, Calcutta.
After reaching there, the N.C.B. officers searched the room of the
appellant herein who was staying in Room No.1 of New Sarat Lodge. The
officers asked the appellant in writing as to whether he wanted to be
searched in the presence of a Gazetted officer or a Magistrate and
informed the appellant that one Gazetted officer was already with them
and if he so desired, he might be searched by the said Gazetted
officer as well.
3) After search being done by the raiding party, a polythene packet
containing brown coloured powder weighed 250 grams of heroin was
recovered from the left side pocket of his wearing trouser.
Thereafter, the appellant was arrested on the same day at 22.30 hrs.
4) As a follow up action of the said recovery, one Anjan De was
arrested from the Bidhan Nagar Railway Station at Calcutta by the said
N.C.B. officers possessing 245 grams of heroin on 22.05.1998.
5) During the trial, the prosecution examined eight witnesses and
the defence examined nine witnesses.
6) The learned Judge VIth Bench, City Sessions Court acting as the
Judge, Special Court under the N.D.P.S. Act by his judgment and orders
dated 11.04.2002 and 12.04.2002 found the appellant guilty of the
offence punishable under Section 21 of the NDPS Act, convicted him
thereunder and sentenced him to suffer rigorous imprisonment for ten
years and to pay a fine of Rs.1,00,000/-, in default to suffer further
rigorous imprisonment for one year. However, the appellant was
acquitted of the offence charged under Section 29 of the NDPS Act.
So far as another accused- Anjan De was concerned, he was not found
guilty of both the offences under Sections 29 and 21 of the NDPS Act
and was accordingly acquitted thereof.
7) Challenging the said order of conviction and sentence, the
appellant preferred an appeal being C.R.A. No. 269 of 2003 before the
High Court. The High Court, by impugned judgment and order dated
31.08.2004, dismissed the appeal filed by the appellant.
8) Aggrieved by the said judgment and order, the appellant has
filed this appeal by way of special leave before this Court.
9) By order dated 17.09.2007, this Court released the appellant on
bail.
10) In this appeal, we find from the record that the appellant was
originally represented by an amicus curiae - Mr. Mulkh Raj, who later
stopped appearing for the appellant after leave was granted by this
Court. Thereafter Mr. Abhijit Sengupta, learned counsel appeared for
the appellant and bail was granted by this Court on 17.09.2007. On
10.12.2015, Mr. Abhijit Sengupta, learned counsel also filed
application for discharge of advocate of the appellant. By order
dated 15.12.2015, this Court allowed the application filed by Mr.
Abhijit Sengupta and discharged him from acting as AOR on behalf of
the appellant. The Registry served notice on the appellant by speed
post but no one represented the appellant.
11) When the appeal came up for hearing on 19.05.2016, in the
interest of justice and fair play, we requested Mr. Aniruddha P.
Mayee, learned counsel, who was present in Court, to appear as amicus
curiae on behalf of the appellant. On our request Mr. Aniruddha P.
Mayee, learned counsel appeared and argued the case for the
appellant. We place on record our appreciation for Mr. Aniruddha P.
Mayee for his valuable services in arguing the case of the appellant.
12) In these circumstances, we are of the opinion that the appellant
is sufficiently and duly represented throughout in these proceedings
and it is not necessary to issue any fresh notice to the appellant and
give him another opportunity to engage a counsel of his choice.
13) The submission of the learned counsel appearing for the
appellant (accused) was only one and that was in regard to non-
compliance of requirements of Section 42 read with Section 50 of the
NDPS Act. According to him, the compliance of these Sections being
mandatory at the time of search and the same in this case was not done
in the manner required by the concerned officials of the Department,
the appellant's conviction is rendered legally unsustainable and hence
deserves to be set aside.
14) Learned counsel for the respondents, however, supported the
impugned order and urged for dismissal of the appeal. It was his
submission that compliance of the requirements of Sections 42 and 50
of the NDPS Act has been done in letter and spirit and both the
Courts rightly held the same to have been done and hence there arises
no case to interfere in the impugned order.
15) Having heard the learned counsel for the parties and on perusal
of the record of the case, we find no merit in this appeal.
16) The point urged by the learned counsel for the appellant was
dealt with by the High Court as under:
“Now, we come to the main area which has detained Shri
Jash at length. His argument that there was no compliance of
Section 42 of the said Act. This ground has to be discarded at
the very outset in view of the latest decision of Supreme Court
in State of Haryana Vs. Jarnail Singh and Ors. [2004 SAR
(Criminal) 535] wherein Their Lordships had held:
“Moreover it cannot be lost sight of that the
Superintendent of Police was also a member of the searching
party. It has been held by this Court in M. Prabbulal vs.
Assistant Director, Directorate of Revenue Intelligence:
(2003) 8 SCC 449 that where a search is conducted by a
gazetted officer himself acting under Section 41 of the
NDPS Act, it was not necessary to comply with the
requirement of Section 42. For this reason also, in the
facts of this case, it was not necessary to comply with the
requirement of the proviso to Section 42 of the NDPS Act.”
Such being the position the argument of Shri Jash so far
as infraction of Section 42 of the said Act is concerned has no
merit at all since PW7 was a Gazetted Officer himself and he
conducted the raid and also effected the search and seizure from
the Appellant.
Now, this brings us to the last ground of Shri Jash that
Section 50 of the said Act was not strictly complied with. We
have carefully gone through the evidence of P.Ws 4,6, and 7 in
this regard and we feel that the provisions of Section 50 of the
said Act have been complied with.
P.W.4, who conducted the Raid, stated:
“We gave him off in writing whether he likely to be
searched in presence of a Magistrate or a Gazetted Officer
or a Gazetted Officer accompanying the raiding party. He
agreed to be searched before the accompanying Gazetted
Officer. Prior to search, we gave offer to him if he likes
he can search the Gazetted Officer, N.C.B. Officers etc.
But he declined.”
P.W.6, conducting the raid on the relevant date and time
of seizure, supported the said version and stated:
“We gave written offer that we want to search
and disclosed to him whether he would like to be searched
by a Gazetted Officer or a Magistrate or the accompanying
Gazetted Officer, who was with us. He stated to us that he
could be searched before our accompanying Gazetted Officer.
We asked him to search us before we started conducting
search to him. He expressed his unwillingness.”
P.W.7 the Gazetted Officer similarly stated:
“One of our officers offered the accused to be
searched in presence of a Gazetted Officer or a Magistrate.
We also told him that one Gazetted Officer accompanied the
raiding party. The accused agreed to be searched in
presence of the accompanying Gazetted officer.”
The decision of KRISHNA KANWAR (SMT) ALIAS THAKURAEEN
(supra), relied upon by the Revenue has full application in the
fact situation of the instant case (see also Prabha Shankar
Dubey Vs. State of M.P. [(2003) 8 Supreme 565.
From a broad analysis of the entire evidence and other
materials on record we find from the Seizure List (Ext.9) which
discloses seizure of contraband articles from the place of
occurrence (New Sarat Lodge at 77/1A, A.P.C. Road, Calcutta –
700 009) on 21.5.98 at about 16-00 hours in presence of the
witnesses and being signed by the Appellant himself. The said
contraband articles in question, which was seized from the
possession of the Appellant were found to be HEROIN on the basis
of the Report (Ext.2) submitted by Chemical Analyst (P.W.2) and
even if we leave out the Statement (Ext.6) made by him as he had
disclosed on the second day of his production (08.6.98) that “he
was forced to write his confessional statement on the threat and
torture. It is also his allegation that his signature on more or
less 18 blank papers were taken by the prosecution” we find that
the other evidence on record is quite sufficient to prove the
Charge against the Appellant.
We find that the Prosecution has been able to prove its
case beyond any shadow of doubt against the Appellant and the
points canvassed by Shri Jash have no manner of application in
view of the discussion held hereinabove.”
17) We are in complete agreement with the aforementioned finding of
the High Court as, in our opinion, it is just, legal and proper
calling no interference in this appeal.
18) Firstly, the High Court has recorded the finding keeping in view
the law laid down by this Court in State of Haryana vs. Jarnail Singh
& Ors., (2004) SAR (Criminal) 535. Secondly, since PW-7 himself was
the gazetted officer, it was not necessary for him to ensure
compliance of Section 42 as held by this Court in Prabha Shankar Dubey
vs. State of M.P. (2003) 8 Supreme 565 = (2004) 2 SCC 56 and lastly,
so far as compliance of the requirement of Section 50 is concerned, it
was found and indeed rightly that the offer to search the appellant
was given to him in writing and on his giving consent, he was
accordingly searched.
19) The High Court was, therefore, right in upholding the procedure
followed by the raiding party for ensuring compliance of Section 50
and rightly held against the appellant on this issue. We find no
ground to take a different view than the one taken by the High Court
and accordingly uphold the finding on this issue against the
appellant.
20) We have also carefully examined the record with a view to find
out as to whether the appeal involves any ground other than the one
urged. Having so examined, we find none except the one urged and
decided against the appellant.
21) In the light of foregoing discussion, we find no merit in this
appeal. It thus fails and is accordingly dismissed.
22) As a result, the bail granted to the appellant by this Court by
order dated 17.09.2007 is hereby cancelled and the appellant is
directed to surrender before the Trial Court to undergo the remaining
period of sentence awarded to him by the courts below.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
June 29, 2016