Special Courts In NDPS Act Cases To Record Statements Of Official Witnesses Via Video Conferencing: Calcutta HC [Read Judgment]

In a path breaking judgment, the Calcutta High Court suggested the Special Courts under NDPS Act to record statements of official witnesses by way of video conferencing. Background Brief facts of the case titled "Md. Sarfaraz @ Bonu & Anr. v. The Union of India" are that based on intelligence information, certain officers of Directorate of Revenue Intelligence (DRI) boarded a Railway coach and conducted preliminary checking of the luggage of the Appellants at New Jalpaiguri Railway Station. On suspicion, their luggage was subsequently checked at the DRI office in presence of independent witnesses. During the search, contraband articles were found in their luggage and the same were sent for chemical examination. Subsequently, statements of the Appellants were recorded under section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (NDPS Act) where they admitted to their guilt. Later, upon receiving of chemical examiner's report disclosing that the contraband contained Hashish, complaint was filed against the Appellants. After trial, a Special Court established at Siliguri under the NDPS Act, convicted the Appellants for commission of an offence punishable under Sections 20(b)(ii)(c) read with section 29 of the NDPS Act and sentenced them to suffer rigorous imprisonment for 10 years. This order was challenged by the Appellants in the present matter, before the high court. Appellants' Contentions The Appellants raised many arguments w.r.t. to the evidence lead in the facts of the case. The main contentions are enlisted below: It was alleged that there was variation in the weight of the contraband materials that were sent for examination and the articles that were examined. Original contraband materials were not produced in Court. Independent witnesses had not supported the prosecution's case. Neither railway official nor any passenger of the said train was examined to support the evidence of the prosecution case. With regards the confessional statement recorded under section 67 NDPS Act, it was contended that the Appellants were in the custody of DRI officers at the time when they made those statements and such statements were involuntary and inadmissible in law. Reference was made to Noor Aga v. State of Punjab, (2008) 16 SCC 417. Apart from the aforementioned objections, the Appellants contended with utmost conviction that examination-in-chief of DRI officers and their associates that were adduced by filing affidavits was inadmissible in law. It was contended that their evidence did not fall within the ambit of section 295 or 296 of CrPC and thus couldn't be allowed on affidavit. It was also contended that directions in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590 could not be interpreted to permit such a course of action. Section 295 of CrPC allows evidence by way of affidavit in proof of conduct of public servants and Section 296 permits evidence by way of affidavit for formal character. State's Contentions With regards the first two contentions, it was submitted that there were only minor variations in the weight and that the original contraband had been disposed off by the Magistrate in consonance with Section 52A of CrPC. As to the third and fourth contention it was stated that as evident from the special court's judgment, the prosecution case had been proved beyond reasonable doubt and there was no infirmity in the witnesses' statements. On the objection with regard to admissibility of confessional statement under Section 67 of NDPS Act, the state submitted that the issue must have been raised by the Appellants at the earliest and not at the appellate stage. Lastly it was submitted that the affidavit evidence of the prosecution witnesses were initiated in terms of the directions of the Apex Court in Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590. Further, no objection in this regard was raised in the course of trial and hence, the Appellants could not raise such an objection at the appellate stage. Findings The bench comprised by Justice Joymalya Bagchi and Justice Manojit Mandal held the following with regards the aforementioned objections: The first two contentions of the Appellants were dismissed and the court held that, "variation in weight of the representative samples in the test report and as noted in panchnama were very minor and of little relevance as signatures and seals on the envelopes containing the samples were found intact". Further it was held that, remainder of the contraband was destroyed with permission of the Court in terms of section 52 of NDPS Act and hence, non-production of seized contraband in court could not be a ground to reject the prosecution case. Addressing the next two contentions of the Appellants, the court held that it is the quality and not quantity of evidence which is relevant to prove a fact. The bench relied on the Apex Court's verdict in Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, wherein it...

Special Courts In NDPS Act Cases To Record Statements Of Official Witnesses Via Video Conferencing: Calcutta HC [Read Judgment]

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