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High Court Of Calcutta
P. K. BISWAS
PRABHAS SARKAR - Appellant
Versus
STATE - Respondent
C. R. A. 25 Of 2002
Decided On : 08/12/2002
NDPS ACT - SEARCH AND SEIZURE - [SECTION 42, 50] - The court held that the ASI who conducted the search and seizure was not authorized to do so as he was not the Station House Officer and did not have proper authorization from his superior officer. The court also held that there was non-compliance with the mandatory provisions of section 50 of the NDPS Act as the accused was not offered the option to be searched in the presence of a gazetted officer or Magistrate. The court further held that there was a possibility of tampering with the sample as there was an inordinate delay in sending it to the CFSL and the prosecution failed to prove that the seal on the sample remained intact till it reached the CFSL.
Fact of the Case:
The appellant was convicted under section 20(b)(i) of the NDPS Act for possessing Ganja. The appellant challenged the conviction on the grounds that the search and seizure were illegal, there was non-compliance with the mandatory provisions of section 50 of the NDPS Act, and there was a possibility of tampering with the sample.
Finding of the Court:
The court held that the search and seizure were illegal as the ASI who conducted the search and seizure was not authorized to do so and there was non-compliance with the mandatory provisions of section 50 of the NDPS Act. The court also held that there was a possibility of tampering with the sample as there was an inordinate delay in sending it to the CFSL and the prosecution failed to prove that the seal on the sample remained intact till it reached the CFSL.
Issues: 1. Whether the search and seizure were illegal? 2. Whether there was non-compliance with the mandatory provisions of section 50 of the NDPS Act? 3. Whether there was a possibility of tampering with the sample?
Ratio Decidendi: 1. The court held that the search and seizure were illegal as the ASI who conducted the search and seizure was not authorized to do so and there was non-compliance with the mandatory provisions of section 50 of the NDPS Act. 2. The court held that there was a possibility of tampering with the sample as there was an inordinate delay in sending it to the CFSL and the prosecution failed to prove that the seal on the sample remained intact till it reached the CFSL.
Final Decision: The court allowed the appeal and acquitted the appellant of the offence under section 20(b)(i) of the NDPS Act.
( 1 ) THIS appeal is directed against the judgment and order of conviction passed by Mr. M. M. Sarkar, learned Sessions Judge, Andaman and Nicobar islands, Port Blair, on 26th February, 2002 in Sessions Case No. 1 of 2001 (Sessions Trial No. 17th of December, 2001), whereby he has been pleased to pass an order of conviction upon the appellant, Shri Prabhas Sarkar, sentencing him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 5000/-, in default, to suffer rigorous imprisonment for a further period of three months under section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ?ndps Act) ).
( 2 ) THE short facts leading to the prosecution of the convict/appellant are as under:-on 5. 1. 1997 ASI R. A. Prasad was placed in charge of the Hut Bay P. S. in the temporary absence of the Station House Officer of Hut Bay P. S. in Little Andaman. On that dated, being accompanied by HC 1172 D. N. Singh, HC 1166 C. D. P. Yadav, PC 1661 Hardeep Singh and PC 1693 K. C. Paul, he left the P. S. for patrolling duty, and in course of such patrolling duty having reached Ramkrishnapur, he got a secret information from source that one Shri Prabhas Sarkar was selling Ganja in puria or small packets from his shop at Ramkrishnapur, and on receipt of the said information, the said Police Officer reached the shop of Shri Prabhas Sarkar and posted police guards both in the front side and back side of the said shop. The said Police Officer sent PC 1661 Hardeep Singh to bring the Executive Magistrate of Hut Bay Tehsil, and subsequently, at 13-15 hours the Executive Magistrate, Shri B. B. Mitra, arrived at the place of occurrence. In the presence of the said Executive Magistrate and one Shri Motilal Sarkar, Sarpunch of Ramkrishnapur Gram Panchayat, the ASI R. A. Prasad conducted search in the double storied building of Prabhas Sarkar, firstly in the ground floor and subsequently in the first floor where Shri Prabhas Sarkar has his living accommodation.
( 3 ) IN course of the said search in the first floor room, Ganja was recovered being mixed Bhang in small paper packets or purias and also inside a cotton pillow cover with plastic packets or pannis. Subsequently, the entire recovered Ganja was weighed and found to contain 4. 5 kgs. and from the aforesaid seized article, 100 grams of Ganja was separated as a sample and the same was put in a separate packet, and rest packets and purias were put in a big plastic bag, and all those articles were duly sealed after formal seizure of the said recovered articles by preparing the seizure list in presence of the said Executive Magistrate, Shri B. B. Mitra, Sarpunch, Shri Motilal Sarkar and the accused person himself, and as on demand, the accused Prabhas Sarkar failed to produce any authority of licence for his possession of Ganja.
( 4 ) SUBSEQUENTLY, after investigation, charge-sheet under section 20 (b) (i) of NDPS Act, 1985 was submitted against the convict/appellant and trial was started by framing charge under the said section against the convict/appellant, who during his examination pleaded not guilty and claimed to be tried.
( 5 ) THE prosecution in this case has examined in all 9 PWs and produced some documentary evidence to substantiate the allegations against the aforesaid convict/appellant.
( 6 ) FROM the side of the convict/appellant no witness was examined; but from his side some technical defence was taken with regard to the search and seizure conducted by ASI R. A. Prasad and also with regard to the non-compliance with the mandatory provisions of section 42 as also section 50 of the NDPS Act.
( 7 ) THE learned Sessions Judge after conclusion of the trial and upon hearing the parties before him, and after rejecting the contention of the convict/appellant, was pleased to convict and sentence the convict/appellant under section 20 (b) (i) of the NDPS Act, 1985 holding him guilty of the aforesaid offenc
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