The failure to comply with mandatory provisions of the NDPS Act regarding search and seizure renders the conviction suspect, requiring acquittal.

JUDGMENT :

CHANDRA SHEKHAR JHA, J.

1. This appeal has been preferred by the appellants/convicts under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the judgment of conviction dated 01.03.2024 and order of sentence dated 07.03.2024 passed by learned Exclusive Special Court No.II under NDPS Act, East Champaran, Motihari in NDPS Case No. 13 of 2018 (arising out of NCB/PZU/V/10/2018), whereby the concerned Trial Court has convicted both above named appellants for the offence punishable under Section 20 (b) (ii) (c) and 23 (c) of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS’) and they have been sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 1,00,000/- for the offence punishable under Section 20 (b) (ii) (c) of the NDPS Act and rigorous imprisonment for ten years and fine of Rs. 1,00,000/- for the offence punishable under Section 23 (c) of the NDPS Act. In default of payment of fine, both appellants have to undergo further simple imprisonment for six months. All aforesaid sentences ordered to run concurrently.

2. The case of prosecution in brief as it appears through complaint petition is that on 26.02.2018 at about 15:30 hours Second Commandant Sri Surendra Vikram (PW- 3), posted in Battalion Headquarters received information from the Gulzar Hussain (not examined) and Jayant Pandey (not examined) that two women have left for Bettiah with some narcotics and also explained PW-3 about their appearance and look. On the basis of aforesaid information, a QRT (Quick Response Team) was formed under order of Second Commandant/PW-3, comprising of six people including the team commander. QR team left the headquarters at 16:00 hours and reached Bettiah bus stand at 18:00, thereafter team was deployed at different places. After some time two women were found coming on a rickshaw, who were asked to stop by women team members. Upon hearing the voice both women came down from rickshaw and started running away, where they have been caught after short chase and searched superficially by female team members. Upon search something appeared wrapped around their waist. On questioning by female team members they disclosed that it is a narcotic substance. They were told about their legal right as available under Section 50 of the NDPS Act, whereafter both women agreed for their search. After that both women were brought to the office of 47th SSB Battalion by the women constables and were searched by Women Commander/SI. Upon a thorough search by women employees, 16 rectangular flat items covered with yellow coloured plastic, wrapped in white cloth were found around the waist of both the women. When the item was checked with a drug detection kit, it was confirmed to be hashish (charas) and upon weighing same, it was found total of 7.8 kilograms. During interrogation they told their names as Leelam Devi (appellant no. 1) and Laxmi Devi (appellant no. 2). In front of two independent witnesses namely Manoj Kumar and Pintu Kumar a seizure memo of aforesaid recovered contraband was prepared.

3. On the basis of aforesaid official complaint, the police registered a case as NDPS Case No. 13 of 2018 dated 27.02.2018 for the offence punishable under Sections 20 (b) (ii)(c) and 23(c) and 29 of the NDPS Act, where after investigation, police submitted charge-sheet.

4. The learned Sessions Judge-cum-Special Judge, being Court of original jurisdiction after perusal of record and materials collected during the course of investigation, took cognizance