Kolkata, Jun 27 The Calcutta High Court has set aside the conviction of four persons in connection with the seizure of 525 kg contraband, expressing displeasure over police's failure to videograph the seizure process and shoddy evidence-gathering in the case.
The four -- Samir Das, Jahiruddin Sk, Gopal Das and Bijoy Biswas -- were sent to jail for 10 years by a court in Nadia district's Krishnanagar. However, a division bench of the court ordered their immediate release.
Observing that courts have repeatedly directed authorities to make sure that search and seizure are videographed, the court said that "it appears they are not complying with the direction for reasons best known to them".
"Astonishingly, although the STF and other officials carry several pieces of equipment, including testing kits and measurement kits, they are not taking any instrument for videography of the proposed search and seizure," the division bench comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray observed.
"The prosecution could have videographed the seizure process and could have also proved the case with the help of the independent witnesses. But materials on record show that the prosecution has failed to produce any videography of the seizure process," the division bench said in its judgment delivered on June 24.
Stating that in all probability, all the officers have smartphones, the court noted they could have videographed the entire search and seizure or taken photographs on their phones. But it appears they did not make any videography in spite of specific direction from courts, including the Calcutta High Court, it said.
The bench said that without complying with the direction on videography, the prosecution relied upon witnesses who were part of the raiding party. "We are not inclined to rely upon the witnesses who were members of the raiding party," the court said.
It also court noted that although 525 kg of contraband was seized, an inventory was done for 549 kgs of narcotics.
The observation that moisture might have enhanced the contrabands' weight was unsupported by evidence, nor did any witness depose to this effect, the bench said, holding that if that be so, then the storage of such contraband articles following seizure would be questionable.
The court said the search, seizure and possession of contraband were not proved by producing independent witnesses and also by the requisite videography.
It held that the prosecution failed to meet the conditions for statutory presumption under Section 54 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act that the accused committed an offence, and the onus lies upon the accused to prove otherwise.
Hence, the convicts are entitled to an order of acquittal, the court said.
The alleged seizure was made on May 23, 2021, in the Nakasipara police station area in Nadia district and the four persons were sentenced on July 19, 2024.
The lawyer representing the West Bengal government argued before the court that the appellants were in an SUV and the contraband was brought by two other accused
in a truck. He stated that the four persons were apprehended when they went inside the truck to receive the contraband.
He said that the contraband was found in the convicts' possession, and although there were minor defects in the prosecution's case, these were not fatal since the convicts failed to rebut the statutory presumption under the NDPS Act.
In reply, the counsels representing the convicts submitted that the conviction order relied on evidence illegally admitted during the trial and also for the non-consideration of evidence brought on record during cross-examination.
The high court noted that the samples were drawn at the place of occurrence on May 23, 2021, and the investigating officer sent them to the forensic laboratory a month later.
It was also pointed out that no malkhana register or godown register was produced at the time of trial and that no explanation was given in the evidence where the said sample was kept by the investigating officer during one month after the seizure.
According to the rule, samples, after being certified by the magistrate, must be sent directly to one of the jurisdictional laboratories - Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as applicable - for chemical analysis without delay.
