IMPORTANT POINTS
(1) Failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) NDPS Act would render entire prosecution case suspect and cause prejudice to accused.
(2) High Court would not be justified in passing strictures against official of raiding party members without affording an opportunity of being heard.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 21 and 42-Recovery of 3 gms. 25 mgs. of Heroin in a raid conducted at the house of respondent-accused at 21.45 hours on prior secret information-Accused on his own thereafter produced 123 packets containing Diacetyl Morphine-Conviction recorded by trial Court was set aside by High Court in appeal on ground of non-compliance of mandatory provision-State appeal-Prior secret information was not taken down in writing-Search conducted after sunset and before sunrise was without complying proviso to Section 42(1) of the Act-Two independent witnesses joined to witness the search were not examined and no attempt was made to summon them at trial-Failure to comply with Section 42 would render entire prosecution case suspect and cause prejudice to accused-Acquittal could not be interfered with. (Paras 16 to 29)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 58-Acquittal of accused by High Court in appeal holding non-compliance of mandatory provisions of Act by raiding members-Strictures against raiding party members and directions for institution of criminal case against them and grant of compensation of Rs. one lakh to accused against State with liberty to recover amount from raiding party members-High Court was not justified in passing strictures without affording an opportunity of being heard-Such observations were liable to be expugned as there was no evidence to show that there was any mala fides on part of those officers. (Paras 30, 31 and 35)

JUDGMENT

Dr. AR. Lakshmanan, J.-This appeal is preferred by the State of West Bengal and two others to set aside the judgment of the Division Bench of the Calcutta High Court and also for expunging certain strictures passed against appellant Nos. 2 and 3, who belong to the Indian Police Service Cadre and a member of the West Bengal Police respectively. The High Court set aside the order of conviction and sentence passed by Additional Sessions in Sessions trial No. 29 of 1990 convicting the respondent-herein, Babu Chakraborty, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "the Act") and sentencing him for rigorous imprisonment for 10 years and pay a fine of Rs. 1 lakh in default of which one more year of imprisonment is to be undergone.

2. Briefly stated, the case of the prosecution is as under:

On obtaining of secret information, a raid was conducted at the house of the respondent/accused at about 21.45 hours under the supervision of appellant No.2, K.L. Meena, the then Additional Superintendent of Police, Burdwan accompanied by appellant No.3, the Sub-Inspector and other persons and seized 3 gms 25 mgs of Heroin. The accused was arrested for possession in contravention of Section 8(c) of the Act.

3. According to the prosecution, necessary formalities as envisaged under Section 50 of the Act was observed by the raiding Police party. Thereafter, the accused on his own produced 123 packets containing Diacetyl Morphine commonly known as Heroin. The said 13 polythene packets were seized under a seizure list prepared. Witnesses signed the seizure list. Subsequently, seized articles were sealed and labelled. G.D. entry No. 275 at the Police Station was made at 11.30 p.m. by the officer in charge of the said Police Station, who was not the member of the raiding party. G.D. entry No 276 was made at 11.55 p.m. at the same Police Station where the accused was produced and the seized articles were handed over to the Excise Officer. The Excise Officials took charge of the accused for production before the Court. At about 7.00 a.m. on 06.05.1989, O.C. Memari Police Station sent wireless message to S.P., Burdwan and other senior officers mentioning full details regarding arrest and seizure on being instructed by P.W.4. The said message was received by the control room of S.P., Burdwan at about 8.00 a.m. At about 4.00 p.m. on the same day, S.P., Burdwan sent a special message to Police, West Bengal, I.B., Crime, Commissioner, Burdwan Division, G.I.G. Burdwan Range, D.M. Burdwan etc. mentioning full details regarding the arrest and seizure.

4. The Additional Sessions Court, Burdwan in S.T.No. 29 of 1990 in Sessions case No. 16 of 1990 convicted the accused and sentenced to 10 years rigorous imprisonment and Rs. 1 lakh fine, in default of payment for another one year rigorous imprisonment. The accused preferred Criminal Appeal No. 461 of 1990 Before the High Court of Calcutta. The High Court, on 03.10.1997, pronounced the impugned judgment allowing Criminal Appeal No. 461 of 1990 and acquitted the accused. While passing the said order, several strictures and observations were made against appellant Nos. 2 and 3. According to the counsel for the appellant, the said observations and strictures were made by the High Court without giving even an opportunity of being heard to the said appellants to explain their stand. Aggrieved by the impugned judgment, a Special Leave Petition was filed before this Court on 05.01.1998 and leave was granted by this Court on 06.04.1998. Interim stay of the direction regarding payment of Rs. 1 lakh as compensation was also made on 29.01.1998 and continued till date.

5. We heard Mr. Tapas Ray assisted by Ms. A. Subhashini, learned counsel for the appellant and Mr. K.V. Vishwanathan, learned counsel for the contesting respondent.

6. We have been taken through the judgment passed by the Sessions Court and of the High Court and the documents and annexures filed therein a

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2004 Supreme(SC) 1006

Cases Referred (17)