Partly allowed

Samit Mandal v. State of West Bengal

Calcutta HC3 Oct 2023CRM (NDPS)/1444/2023

Case brief

AI extract

What is this about?

The Court addressed an application for bail where the BSF failed to video-record the recovery of narcotics despite a prior directive. Finding the violation palpable and the stated reasons flimsy, the Court granted bail, awarded a contempt rule against the officers responsible, and directed the BSF to formulate a Standard Operating Procedure for future raids.

What did the court decide?

Petitioner released on bail via bond with two sureties; Contempt Rule issued against Dig, Yang Tshering Tamang, and Investigating Officer; DG BSF directed to issue an SOP mandating videography.

Samit Mandal Vs State of West Bengal — Narcotics (NDPS) | Calcutta HC (2023)

¶1

03.10.2023. 05 Ct. No.28 as

¶2

C.R.M. (NDPS) 1444 of 2023

¶3

In Re:- An application for bail under Section 439 of the Code of Criminal Procedure in connection with Baishnabnagar Police Station Case No.1008 of 2022 dated 28.11.2022 under Sections 21(c)/29 of the NDPS Act.

¶4

In the matter of : Samit Mandal.

¶5

… Petitioner. Mr. Amitabha Karmakar, Mr. Arup Kr. Bhowmick. …..for the Petitioner. Mr. Ranabir Roy Chowdhury, Mr. Mainak Gupta. …for the State. Mr. Anirban Mitra, Mr. Banshibadan Maity. …for the BSF (Union of India).

¶6

By order dated 22.06.2022 in CRM (NDPS) 492 of 2022 and CRM (NDPS) 493 of 2022, a Bench of this Court directed as follows:-

¶7

“(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;

¶8

(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;

¶9

Rule drawn in

¶10

separate sheet. (iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their

¶11

¶12

territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;

¶13

(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its noncompliance would attract departmental proceeding so far as the seizing officer is concerned;

¶14

(v) Director General of Police shall issue necessary directions for due compliance with the aforesaid directives; (vi) Superintendent of Police/Commissioner of Police in each district/commissinerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court.”

¶15

The order was duly communicated to all the Central Agencies including BSF. The Central agencies filed compliance report in the said proceeding with regard to implementation of the aforesaid directives.

¶16

However, the present case shows cavalier disregard to the aforesaid directives particularly the issue of meeting compliance videography of search proceedings.

¶17

¶18

In view of the aforesaid, the BSF authorities were directed to submit affidavit why videography had not been made of the alleged recovery of narcotics.

¶19

One Sanjeev Kumar, DIG, BSF, Malda has filed an affidavit before this Court. In the affidavit, it is stated only 10-15 persons out of 1200 persons in BSF battalion are allowed to carry mobile phone while on operational duty.

¶20

Hence, compliance of the direction for videography is not possible. It is also stated that the matter has been referred to Central Oversight Body (for short (COB) and the body if it feels appropriate may approach the Hon’ble Supreme Court for seeking relaxation of the direction passed by this Court. Inspite of repeated queries, learned Advocate for BSF is unable to enlighten the Court whether any appeal has been preferred against the order before the Hon’ble Supreme Court.

¶21

It may not be out of place to note in Shafhi Mohammad¹ , the Apex Court had suggested use of videography as an effective tool in investigation. Being inspired by the observation in Shafhi Mohammad (Supra), this Court directed videography of searches in narcotics cases to eliminate possibility of false implication. Directions were given to the heads of the investigating agencies in the State as well as the Central Government to undertake training programmes to spread awareness and capacity building amongst officers

¶22

¹ (2018) 5 SCC 311

¶23

¶24

regarding compliance of the aforesaid directives relating to videograph of recovery proceeding.

¶25

The order also referred to the wholesome practice of making videography of search proceedings by NCB (Narcotics Control Bureau) as would appear from Chapter VI entituled ‘Relating to recovery and seizure’ in the Field Officers Handbook issued and circulated by the said department. The relevant portion of the Handbook reads as follows:-

¶26

Video :- A lot of times the witnesses and suspect allege

¶27

foul play by the search team during the trial proceedings alleging that they were not present at the time of recovery. To avoid such a situation, all recovery and concealment methods should be videographed simultaneously if possible, recording the presence of the owner/occupant of the premises and the witnesses. This acts as a deterrent later during trial proceedings.”

¶28

This shows videography of recovery proceeding is a wholesome practice which is advised to be undertaking by NCB and had found favour with the Hon’ble Apex Court in Shafhi Mohammad (Supra). It is also relevant to note reports were filed by the Central Agencies with regard to compliance of the directives relating to videography before this Court in the earlier case.

¶29

Inspite of the compliance reports filed as aforesaid, the ground reality is starkly different as would appear from this case. Affidavit filed by the DIG brazenly avers as most of the BSF personnel are not permitted to carry mobile phones, they

¶30

¶31

are not able to comply with the directives to make videography of seizures. It is also observed that the matter has been referred to Central Oversight committee who may choose to appeal before the Hon’ble Supreme Court. Tenor of the averment in the affidavit shows a cavalier attitude by the BSF authorities with regard to the compliance of directives issued by this Court in its earlier order in CRM (NDPS) 492 of 2022 and CRM (NDPS) 493 of 2022. At no point in the compliance reports filed in the earlier proceedings, any objection was raised with regard to implementation of the aforesaid directives on the abovecited grounds. Thus, issues raised in the affidavit appear to be excuses which have been belatedly concocted to justify a palpable non-compliance of the directives of this Court.

¶32

It is all the more appalling to note the deponent averred in paragraph 5 of the affidavit that a judicial order passed by a High Court need not be complied as the matter had been referred to a Central Oversight Committee which may decide to approach the Apex Court.

¶33

The deponent is a senior officer of BSF. He was duty bound to recommend initiation of disciplinary proceeding against the investigation and seizing officer who did not make videography of search proceeding as per our earlier order. On the other hand, he seeks to circumvent its compliance by resorting to wholly flimsy and prima facie contemptuous excuses.

¶34

¶35

Accordingly, we issue a Contempt Rule upon the deponent viz., Sanjeev Kumar, Yang Tshering Tamang and Investigating officer/seizing officer viz., Inspector Vipin Deshmukh, Spl. Ambush Party, BSF to show cause why they shall not be committed to prison or be penalised or dealt with for having willfully and deliberately violated the order dated 22.06.2022. They shall appear personally or their counsel before this Court at 10.30 P.M. and shall not leave Court without permission.

¶36

Rule is made returnable four weeks after Puja vacation (19.12.2023).

¶37

Director General, BSF is directed to issue a Standard Operating Procedure (SOP) incorporating mandatory videography of search and seizure of narcotics in terms of our order dated 22.06.2022 in CRM (NDPS) 492 of 2022 and CRM (NDPS) 493 of 2022.

¶38

We have considered the materials on record. There is palpable violation of the order dated 22.06.2022 in failing to undertake videography of the seizure of narcotics from the petitioner. There was also no independent witness to the seizure. Petitioner has made out a prima facie case with regard to the possibility of false implication and has rebutted the statutory restrictions under Section 37 of the NDPS Act.

¶39

Accordingly, the petitioner viz Samit Mandal shall be released on bail upon furnishing a bond of Rs.10,000/- with two sureties of like amount each, one of whom must be local, to

¶40

¶41

the satisfaction of the learned Judge, Special Court under the NDPS Act, Malda subject to condition that he shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and on further condition that the petitioner while on bail shall remain within Baishnabnagar Police Station and report to the Officer-incharge of Baishnabnagar a Police Station once in a week until further orders.

¶42

In the event the petitioner fails to appear before the Trial Court without any justifiable cause, the trial Court shall be at liberty to cancel his bail in accordance with law without further reference to this Court.

¶43

The Director General, BSF shall file a report placing on record a standard operating procedure regarding raids for recovery of narcotics which shall include videography of recovery proceedings in terms of order dated 22.06.2022 on the adjourned date.

¶44

(Gaurang Kanth,J.) (Joymalya Bagchi, J.)

Samit Mandal v. State of West Bengal

Case brief

What is this about?

What did the court decide?

Samit Mandal v. State of West Bengal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Subrata Kumar Biswas @ Subrata Biswas Vs State of West Bengal

Rajendra Sarkar Vs State of West Bengal and Anr.

Sanjay Mistry Vs Central Bureau of Investigation

Devendra Ahuja@Chintu Vs State of West Bengal

Mukti Tirtha Andaman Co-Op Housing Society Ltd. & Anr. Vs W.B. Housing Infra. Dev. Corp. Ltd. & Ors.

Parvati Devi @ Pabitri Devi Jaiswal Vs State of West Bengal