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HIGH COURT OF CALCUTTA
Sujit Barman Roy & Debiprasad Sengupta, JJ.
Tej Bahadur Singh & Anr.
vs.
Narcotic Control Bureau & Anr.
C.R.A. No. 200 of 1998
Decided On: May 4, 2000
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 52A - MANDATORY PROVISION - NON-COMPLIANCE - ADVERSE EFFECT ON PROSECUTION CASE - SUBSTITUTION OF SEIZED ARTICLES - BENEFIT OF DOUBT TO ACCUSED.
Fact of the Case:
Appellants were convicted for possessing 3.10 kgs of heroin and sentenced to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The prosecution alleged that the appellants were found in possession of the heroin during a search of their hotel room. The appellants challenged the conviction, arguing that the sample analyzed by the chemical examiner was not the same as the one seized from them, that the time of the alleged seizure was not proven, and that the provisions of section 52A of the NDPS Act were not complied with.
Finding of the Court:
The court found that there were discrepancies in the prosecution's evidence regarding the identity of the seized articles and the time of the seizure. It also found that the provisions of section 52A of the NDPS Act, which require the preparation of an inventory and the certification of the correctness of the inventory by a magistrate, were not complied with. The court held that the non-compliance of section 52A made the entire search and seizure vitiated.
Issues: 1. Whether the sample analyzed by the chemical examiner was the same as the one seized from the appellants. 2. Whether the time of the alleged seizure was proven. 3. Whether the provisions of section 52A of the NDPS Act were complied with.
Ratio Decidendi: 1. The court held that the prosecution failed to prove that the sample analyzed by the chemical examiner was the same as the one seized from the appellants. The court noted that there were discrepancies in the prosecution's evidence regarding the identity of the seized articles and the time of the seizure. 2. The court held that the prosecution failed to prove the time of the alleged seizure. The court noted that the hotel register showed that the appellants had checked out of the hotel at 12.30 p.m. on the day of the seizure, while the prosecution witnesses testified that the seizure took place between 1.00 p.m. and 3.00 p.m. 3. The court held that the provisions of section 52A of the NDPS Act were not complied with. The court noted that the prosecution failed to prepare an inventory of the seized articles and to obtain the certification of the correctness of the inventory by a magistrate.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and ordered the appellants to be set at liberty forthwith.
Debiprasad Sengupta, J.: The present appeal is against the judgment and order dated 22/23.6.98 passed by the learned Judge, 6th Bench, City Sessions Court, Calcutta & Special Judge in N.D.P.S. Case No. 31/95 convicting the appellants for committing an offence punishable under section 21 of the N.D.P.S. Act and sentencing them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh each in default of which to undergo rigorous imprisonment for a further period of 1 year.
2. The prosecution case in brief is that on 11.7.95 the officer of the Narcotic Control Bureau acting on a source information searched room No.2 of Puspa Hindu Hotel and Lodging House in presence of two independent witnesses at 22, M.G. Road, Calcutta from 10.30 a.m. to 3 p.m. The present appellants were found to be in occupation of the aforesaid room and during search 3.10 kgs. of brown coloured powder believed to be heroin was found in the bed of the appellants which was kept inside a cloth bag being wrapped in a polythene packet. Preliminary test at the spot revealed the same to be heroin. All the articles found inside the room were seized. Two sample packets of the aforesaid substance containing 3 gms. each were prepared. The appellants were served with notice under section 67 of the N.D.P.S. Act to attend the office of N.C.B. on 11.7.95. In compliance with the said notice the appellants visited the office of the N.C.B. on 11.7.95 and 12.7.95, when they admitted their guilt in writing and disclosed their identity. The appellants thereafter were arrested on 12.7.95 for committing offence under section 21/29 of the N.D.P.S. Act. It is the further case of the prosecution that the aforesaid sample was sent to the Chemical Laboratory, Customs House, 15/1, Strand Road, Calcutta -1. The result of the chemical examination was positive and conformed to the definition of heroin. On receipt of the report of Chemical Analyst the complaint was filed in court.
3. To prove its case the prosecution had examined as many as 8 witnesses. P.W.I is the Assistant Chemical Examiner attached to Chemical Laboratory, Customs House, 15/1, Strand Road, Calcutta, who had examined the samples of the seized powder substance. P.W.2 was an officer of the Narcotic Control Bureau and was a member of the raiding party. P.W.3 was an intelligence officer of the N.C.B. and was a member of the raiding party. He also received the secret information on the basis of which raid was conducted. P.W.4 was an intelligence officer of the N.C.B. and was a member of the raiding team. P.W.5 was also an officer of the N.C.B. and was a member of the raiding team. P.W. 6 is also an officer of the N.C.B. and he filed the petition of complaint. P.W.7 is the owner of Puspa Hindu Hotel & Lodging House. P.W.8 was an officer of N.C.B. who acted as godown officer on 11.7.95.
4. Mr. Sekhar Bose, learned Advocate appearing for the appellants submits that the sample which was analysed by P.W.1 cannot be the representative sample of the alleged contra banned article allegedly seized from room No.2 of Puspa Hindu Hotel on 11.7.95. Mr. Bose draws our attention to the evidence of P.W.1 and submits that as per his evidence the samples of article which were analysed by P.W.1, was received by his office on 12.7.95, i.e., the day following the seizure. Mr. Bose further points out that it is the evidence of P.W.2 that the sample packets alongwith the main lot were produced before the learned Judge on 13.7.95 and the same were countersigned by the court with the seal of that court. It also appears from the order of the learned Judge, Special Court dated 13.7.95 that the entire seized articles along with samples were produced before the learned Judge, Special Court on 13.7.95 and the learned Judge by the said order permitted the N.C.B. officers to send the samples for chemical examination.
5. According to the appellant's learned Advocate if the aforesaid three circumstances are taken into consideration it c
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