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2000 Supreme(Cal) 371
High Court Of Calcutta
Debiprasad Sengupta
SAMIR GHOSH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 75 Of 2000
Decided On : 07/27/2000
DEBASIS ROY, R.K.GHOSAL, SOUVIK MITRA
Failure to comply with the mandatory provisions of sections 52a and 50 of the NDPS Act renders the conviction and sentence unsustainable.
Headnote:
NDPS ACT - SECTION 20 (b) (i), 50, 52A - SEARCH AND SEIZURE - COMPLIANCE WITH STATUTORY REQUIREMENTS - FAILURE TO COMPLY WITH SECTION 52A AND 50 RENDERS CONVICTION AND SENTENCE UNSUSTAINABLE.
Fact of the Case:
The appellant was convicted under section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing 232 grams of Ganja and two cakes of Ganja each weighing one kg. The appellant challenged the conviction on the grounds that the provisions of sections 50 and 52a of the NDPS Act were not complied with.
Finding of the Court:
The court found that the prosecution failed to prove when the seized articles were received by the Narcotic Cell, Malkhana or when they were taken out from the Malkhana and sent for chemical examination, in violation of the mandatory provisions of section 52a of the NDPS Act. The court also found that the prosecution failed to establish that the appellant was informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer, as required by section 50 of the NDPS Act.
Issues: 1. Whether the failure to comply with the provisions of sections 52a and 50 of the NDPS Act renders the conviction and sentence unsustainable? 2. Whether the investigation of a case under the NDPS Act should be done by an independent agency?
Ratio Decidendi: 1. The court held that the provisions of sections 52a and 50 of the NDPS Act are mandatory and their non-compliance renders the conviction and sentence unsustainable. The court reasoned that the purpose of these provisions is to prevent the substitution of articles and to protect the rights of the accused. 2. The court held that the investigation of a case under the NDPS Act should be done by an independent agency and not by the person conducting the search and seizure.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and ordered the release of the appellant. The court also directed that the seized articles be destroyed in accordance with law.
( 1 ) -THIS is an appeal against an order of conviction and sentence dated 25. 2. 2000 passed by the learned 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 10. 8. 92 at about 18. 30 hours PW 1 along with 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 PW1 to search him. PW1 accordingly after observing all formalities searched the appellant in presence of Sri Dasgupta and public witnesses. On search one polythene packet containing 196 small purious 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 levelled 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 filed by the PW1 before the Court of the learned Judge on 4. 8. 94.
( 3 ) TO prove its case the prosecution examined as many as 5 witnesses while none was examined on behalf of the defence PW1, Saroj Kumar Mondal is the complainant and also the Investigating Officer of the case. He is a member of the raiding party. PW2 Samir Goswami, Constable of the Narcotic Cell, Excise Directorate, West Bengal and he is also a member of the raiding party. PW3 Nagendranath Dhali is a constable of Narcotic Cell and is also a member of the raiding team. PW4, Basudev Adhikary is attached to the Narcotic Cell, Excise Directorate, Government of West Bengal. PW5, Dilip Kr. Seth, Assistant Chemical Examiner, Government of West Bengal. The learned 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. 2000/ -.
( 4 ) MR. Sekhar Basu, the learned Advocate appearing for the appellant submits that the provision of section 52a of the 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 PW1 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. Bose submits that in the present case it appears from the evidence on records that the sample
