CALCUTTA HIGH COURT
Joymalya Bagchi and Rajarshi Bharadwaj, JJ.
Loknath Sarkar and Anr. —Appellants
versus
State of West Bengal —Respondent
C.R.A. 754 of 2012
Decided on 20.12.2017

IMPORTANT POINT
When information relating to search of a private premises is received by a raiding party in the course of patrol duty in the field, the raiding party may proceed to the spot and effect search and seizure but immediately thereafter they are required to reduce such information into writing and inform the same to their superior officer.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20(b)(ii)/29 and 42—In presence of eye witnesses and gazetted officer appellant No.2 found carrying cloth bundle was intercepted and searched and 22.750 kgs of Ganja was recovered—Appellant No.2 on interrogation informed that he had collected seized contraband from the house of appellant No.1—Raiding team along with appellant No.2 reached the premises of appellant No.1 and premises was found to be in tenancy of appellant No.1—Appellant No.1 was present and lock of premises was broken in presence of landlady 136.1 kgs of Ganja was recovered from the room—Conviction of both accused by trial court—Appeal—Question was whether search and recoveries were done in consonance with law?—As regards search and recoveries made from premises of appellant No.1, there was complete non-compliance of procedure contemplated u/s 42 of the Act—Officers were required to reduce information into writing and inform same to their superior officers—Though Gazetted Officer was part of search team but he was not examined for no valid explanation—Mere signature of said officer in absence of his evidence may not be sufficient to prove that he was leader of raiding team—No independent witness was examined qua search from premises of appellant No.1—Prosecution failed to prove recovery of ganja from possession of appellant No.1 and his conviction was liable to be set aside—Conviction of appellant No.2 upheld.

       Held: Analysis of the aforesaid evidence would show that the officers of the NCB have claimed that they had prior secret information about dealing in ganja at Birati More on Jessore Road and such information was diarized and sent to the superior officer. However, no contemporaneous document, namely, general diary to that effect has been exhibited in the instant case. It has been argued that as the seizure of ganja from appellant no.2 was in a public place, compliance of Section 42(2) of the NDPS Act is not necessary. Admittedly, search and seizure of ganja from appellant no.2 was from a public place and did not attract the provisions of section 42 of the NDPS Act. However, in view of the fact that the other consignment of ganja was seized from the tenanted premises of appellant no.1 at 41, Sahid Khudiram Bose Road, Birati, the search at the said premises required to be conducted in accordance with the procedure contemplated under section 42 of the Act.

       Once the NCB officers proceeded to conduct search in the tenanted premises of the appellant no.1, Section 42 of the NDPS Act got attracted and it was the duty of the said officers to record the information giving rise to the search in writing and communicate it to their superior officer. It is true when information relating to search of a private premises is received by a raiding party in the course of patrol duty in the field, the raiding party may proceed to the spot and effect search and seizure but immediately thereafter they are required to reduce such information into writing and inform the same to their superior officer. Law in this regard has been succinctly laid down by the Constitution Bench in the case of Karnail Singh (supra).

       I have tested the evidence of prosecution witness in the light of the aforesaid ratio as declared by the Apex Court. I do not find any material on record to indicate that immediately after the search, the information giving rise to the search was diarized and sent to the superior officer as is laid down in Karnail Singh (supra). It is a case of the total non-compliance of Sections 42(1) and (2) which would, therefore, vitiate the search and seizure of the narcotic substance from the tenanted premises of appellant no.1.

       Faced with such a situation, it has been argued that the search was effected in the presence of a gazetted officer, namely, Sunil Kumar, in terms of Section 41(2) of the NDPS Act and not under Section 42 of the NDPS Act. Reference has been made to Jarnail Singh (supra). There is no dispute that search and seizure by a gazetted officer under Section 41(2) of the NDPS Act would not attract the requirements of Sections 42(1) and (2) of the NDPS Act. However, one has to examine such plea in the light of evidence on record. Prosecution has failed to examine the gazetted officer, Sunil Kumar, who, it is claimed had conducted the search. No explanation is forthcoming as to why the said officer was not examined. In the face of non-examination of Sunil Kumar, I hold that the best evidence with regard to search conducted by him in terms of Section 41(2) of the NDPS Act is withheld and I am afraid that such lacuna in the prosecution case cannot be filled up by referring to the evidence of other witnesses. It has been argued that the signature of the gazetted officer is borne out from the seizure list and other contemporaneous documents which were prepared at the time of search and seizure. Mere signature of the said officer in the absence of his evidence as to his presence at the time of the seizure may not be sufficient to prove the fact that he was the leader of the raiding party and had in fact effected search resulting in recovery of narcotic substances.

       In view of the aforesaid factual backdrop, I hold that the prosecution has failed to prove that the search at the premises of the appellant no.1 had been conducted by the gazetted officer under Section 41(2) of the NDPS Act. On the other hand, it appears that there was total non-compliance of Sections 42(1) and (2) of the NDPS Act in effecting the search and recovery from appellant no.1 and the ratio in Jarnail Singh (supra), is factually distinguishable in this case.

       Moreover, the factum of seizure from the tenanted premises of the appellant no.1 is also shrouded in mystery. Apart from the evidence of the members of the raiding party, no independent witness was examined to support the recovery of ganja from his tenanted premises. This is most significant particularly when such search and seizure was effected in the absence of the said appellant. It is also important to note that the land lady of the premises has also not been examined to establish the prosecution case of search and seizure of narcotics from the said tenanted premises. For the aforesaid reasons, I am constrained to hold that the prosecution has failed to prove recovery of ganja from the possession of the appellant no.1 beyond reasonable doubt, although the prosecution case against the appellant no.2 has been duly established.

       Accordingly the conviction and sentence imposed upon the appellant No.1 is set aside and that of the appellant no.2 is upheld. (Paras 12 to 18)

       Result: Appeal allowed partly.