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:

1. 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.
2. Original contraband materials were not produced in Court.
3. Independent witnesses had not supported the prosecution's case.
4. Neither railway official nor any passenger of the said train was examined to support the evidence of the prosecution case.
5. 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

1. 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.
2. 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.
3. 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:

1. 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.
2. 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 was enunciated that if official witnesses are clear and convincing, mere lack of corroboration from independent witnesses cannot be a ground to reject their evidence.
3. With regards the fifth contention of the Appellant, the court noted that the Appellants had not been arrested prior to the recording of their statements under section 67 of NDPS and neither did they retract from their statements at any point of time. Therefore, the facts of the instant case were distinguishable from the Noor Aga case where the confessional statements had been retracted.

Furthermore, the court said that "there is direct evidence with regard to recovery of narcotic substance from the luggage of the appellants. Under such circumstances, the voluntary statements of the appellants recorded under section 67 of NDPS Act can be used as corroborative evidence to bolster the prosecution case. Reference in this regard may be made to Daulat Ram v. Crime Branch (Narcotics) Mandsaur, (2011) 15 SCC 176, wherein evidence of official witnesses relating recovery of narcotics corroborated by the statement of accused under section 67 of NDPS was the basis of conviction".

On the aspect of evidence of DRI officials given by way of affidavit, the court allowed the same. The court noted that neither the Evidence Act nor the CrPC or for that matter the NDPS Act permitted recording of evidence of members of the raiding party by way of affidavit evidence. However, reliance was placed on the Thana Singh case wherein, with regard to examination of witnesses in trials in NDPS case and difficulty faced by various agencies in procuring attendance of officers who had been transferred from their parent organizations to different places, the Apex Court directed "the courts concerned to make most of section 293 of the Code of Criminal Procedure, 1973 and save time by taking evidence from official witnesses in the form of affidavits".

The court said that even though there was no direct provision in the statutes to permit evidence by way of affidavit in the present case, the court was, by virtue of Article 141 of the Constitution and the ruling in Director of Settlement, A.P. v. M.R. Apparao, (2002) 4 SCC 638, bound by the Supreme Court's verdict in the Thana Singh case.

However, the court went on to make a path breaking direction. It stated that:

"in future cases the aforesaid direction given by the Apex Court in Thana Singh (supra) may be considered in the light of advancement in technology particularly availability of video conferencing facilities for recording evidence in criminal cases. Concern expressed in Thana Singh (supra) with regard to delay in examination of official witnesses, due to transfer from parent organization to different places may be effectively addressed if the said witnesses are permitted to record their evidence via electronic/video linkage available in the district court complex nearest to his present place of posting."

Reliance was also placed on Sujoy Mitra v. State of W.B., (2015) 16 SCC 615, wherein the Apex Court held that examination of a witness via video conference was permissible in law. In fact, a detailed procedure was also suggested in the judgment itself with regards to that case.

"Aforesaid decision may be utilized while examining official witnesses in narcotic cases subject to the modification that the official witness may depose via video conferencing facility from the district court complex nearest to his place of posting under the supervision of a responsible officer (e.g. Registrar of the said court) so authorized in that regard by the concerned District Judge", the bench said.

The court opined that examination of official witnesses via video conference has two-fold advantages over affidavit. Firstly, it avoids travel of official witnesses as it absolves them from "physical presence". Secondly, their demeanour may be watched by the Court enabling it to form an opinion with regard to their creditworthiness. It also helps the accused to formulate his defence and pose appropriate questions in cross to test the veracity of the deposition.

"Technological progress in recording evidence via electronic/video linkage is a boon and ought to effectively utilized to improve the quality of dispensation of justice by reducing the time taken for conducting trials in narcotic cases involving official witnesses who are posted at far off places and whose attendance in Court cannot be promptly ensured. Special courts conducting such trial (particularly where under trials are in jail) are directed to avail of electronic/video linkage facilities and examine official witnesses whose attendance cannot be procured without delay, undue expenses and/or other inconveniences so that the fundamental right of speedy and fair trial is effectively enforced and does not become a dead letter of law", the bench said.

Notably, very recently, the Rajasthan High Court had also permitted hearing of the MBC Quota matter by way of video conferencing. 

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