Procedural lapses in search and seizure under the NDPS Act rendered prosecution's case unviable, leading to the acquittal of the accused for lack of evidence of possession of commercial quantity.

JUDGMENT

Mehta, J.

1. Heard.

2. Leave granted.

3. The accused-appellant Nadeem Ahamed [Hereinafter, referred to as ‘accused-appellant’] has approached this Court, through these appeals by special leave, assailing the common judgement dated 17th January, 2025, passed by the Division Bench of High Court of judicature at Calcutta [Hereinafter, referred to as ‘High Court’], whereby C.R.A. (DB) 362 of 2024 preferred by the accused-appellant under Section 374(2) of the Code of Criminal Procedure, 1973 [For short, ‘CrPC’], was rejected on the ground of being time barred and delayed.

4. The accused-appellant stood convicted for the offences punishable under Sections 21 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [For short, ‘NDPS Act’], vide judgment dated 24th August, 2021 passed by the Judge, Special Court under NDPS Act and Additional Sessions Judge, 12th Court, Alipore, 24-Parganas (South), West Bengal [Hereinafter, referred to as ‘trial Court.’]. By the order of sentence dated 26th August, 2021, the trial Court sentenced the accused-appellant to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000/-. In default of payment of fine, the accused-appellant was sentenced to undergo further rigorous imprisonment for six months. As stated above, the High Court refused to entertain the regular appeal against conviction preferred by the accused- appellant and dismissed the same on the ground of delay alone.

Facts of the case

5. The prosecution case, in brief, is that on 16th July, 2018, at about 17:30 hours, seizure officer S.I. Subrata Saha, i.e., PW-2 [Hereinafter, referred to as ‘seizure officer (PW-2).’] received a source information that two male persons would be coming to supply heroin in the vicinity of Pragati Maidan P.S. [Hereinafter, referred to as ‘police station.’] area in the evening of the same day. The information was reduced into writing, and a copy thereof was forwarded to the officer-in-charge of the Narcotic Cell. The seizure officer (PW-2) took permission of the officer-in-charge, and formed a raiding team. He carried the weighing scale, testing kit, packing materials, etc. and reached near Laxmi Store, which fell under the jurisdiction of the police station, at about 19:30 hours. The source informant led them to the prescheduled location, and they maintained a watch. At about 20:00 hours, the source informant pointed towards two male persons coming along the Metropolitan from south to north direction. Both of them were detained by the seizure officer (PW-2) with the help of the members of the raiding team.

6. Two independent persons were requested to stand as panchas in the search. The purpose of detention was disclosed to the detenues. The detenues disclosed their identities as Amit Dutta @ Rakesh [Hereinafter, referred to as ‘co-accused’] (the co-accused) and Nadeem Ahamed (the appellant herein). They were informed about their right of being searched in the presence of either a Magistrate or a Gazetted officer, as per Section 50 of the NDPS Act. The detenues exercised the option to be searched in the presence of a Gazetted officer. However, no such officer was immediately available in the vicinity. Therefore, the seizure officer (PW-2) informed his superior officers.

7. At about 21:30 hours, Inspector Ananda Swarup Nayak, Additional officer-in-charge, i.e., PW-4 [Hereinafter, referred to as ‘Gazetted officer (PW-4)’] came to the spot in uniform. He was introduced as a Gazetted officer to the detenues, and a re-confirmation was taken from both of them as to