IMPORTANT POINT
Provisions of Section 52-A of NDPS Act is mandatory and its non-compliance vitiates prosecution case.

JUDGMENT

D.P. Sengupta, J. - This is an appeal against an order of conviction and sentence dated 25-2-2000 passed by the Id. Judge. Special Court. N.D.P.S. Act. Howrah in T.R. Case No. 137/92 thereby convicting the appellant under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2000/- in default to suffer rigorous imprisonment for a term of one year.

2. The prosecution case is that on 18-8-1992 at about 18.30 hours PW 1 alongwith his immediate superior namely. Shri D.B. Dasgupta. Deputy Excise Collector. Narcotic Cell, being accompanied by others held a raid at Oriapara within the jurisdiction of Golabari Police Station in the District of Howrah on the basis of a secret information received by Shri D.B. Dasgupta. The present appellant was found standing in front of his house. On being asked he disclosed his identity as that of the appellant. He was informed by the PW 1 that they had information that the appellant was selling (Ganja) and they wanted to search him. The appellant was also given the option of being searched in presence of any Magistrate or any Gazetted Officer. He was also informed that one Gazetted Officer was present with the raiding party. The appellant, however, denied and allowed PW 1 to search him. PW 1 accordingly after observing all formalities searched the appellant in presence of Sri Dasgupta and public witnesses. On search one polythene packet containing 196 small purias of Ganja each weighing 1 gram. 13 purias of Ganja each weighing 2 grams and two purias of Ganja each weighing 5 grams in total 232 grams of Ganja were recovered from the possession of the appellant. The appellant thereafter led the raiding party to his bed room wherefrom two cakes of Ganja each weighing one kg were recovered and one jute bag containing 1 kg of Ganja was also recovered from the said room. The aforesaid goods were seized under a seizure list, a copy of which was handed over to the appellant. Samples were taken of the articles which were sealed and labelled and the appellant was arrested after being informed about the grounds of arrest. Subsequently the samples were sent to the Analyst for examination and after obtaining such report of Analyst (PW 5), the prosecution report was failed by the PW 1 before the Court of the learned Judge on 4-8-1994.

3. To prove its case the prosecution examined as many as 5 witnesses while none was examined on behalf of the defence. PW 1, Saroj Kumar Mondal is the complainant and also the Investigating Officer of the case. He is a member of the raiding party. PW 2, Samir Goswami, constable of the Narcotic Cell. Excise Directorate, West Bengal and he is also a member of the raiding party. PW 3. Nagendranath Dhali. is a constable of Narcotic Cell and is also a member of the raiding team. PW 4. Basudev Adhikary is attached to the Narcotic Cell; Excise Directorate, Government of West Bengal. PW 5, Dilip Kr. Seth. Assistant Chemical, Examiner, Government of West Bengal. The ld. Judge after assessment of all the materials on record held the appellant guilty of committing of an offence punishable under Section 20(b)(i) of the Act of 1985 and sentenced him to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2,000/-.

4. Mr. Sekhar Basu, the Id. Advocate appearing for the appellant submits that the provision of Section 52A of he Act, 1985 is mandatory in nature and non-compliance with the provision of this section has rendered the order of conviction sentence unsustainable in law. According to him in the present case PW 1 did not follow any of the conditions, mentioned in Section 52A(2) of the Act of 1985. The failure to do so is a failure to comply with strict procedural requirements and the same rendered the order of conviction and sentence bad in law. Mr. Basu submits that in the present case it appears from the evidence on records that the samples were taken out and