Strict adherence to the procedure delineated under the NDPS Act for search and seizure is crucial to prevent the substitution of seized articles, especially when the punishment under the Act is severe.

Nishita Mhatre, J.:

1. The challenge in these appeals is to the decision of the Additional Sessions Judge-cum-Judge, Special Court under NDPS Act, Cooch Behar dated 29th November, 2007 in G.R. case No.303 of 2006. The appellants have been convicted for having committed an offence punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’). The appellants have each been sentenced to suffer rigorous imprisonment for 12 years and to pay fine of Rs. 1,00,000/- (Rupees one lac only) in default to suffer simple imprisonment for a period of 2 years.

2. Briefly stated the case of the prosecution is that information was received at the Border Security Force (hereinafter referred to as ‘BSF’), Head Quarters, that a consignment of ganja was likely to be transported from New Cooch Behar to Delhi. An ambush was planned on 22nd August, 2006 at 6.20 p.m. in the area of Mura Torsa Bridge near the BSF campus, Roop Nagar which falls under the Kotwali Police Station, District - Cooch Behar. Govinda Rao, a BSF constable who is the appellant in CRA 25 of 2008, was found loitering near the bus stop in a suspicious manner although he had been granted leave up to 14th September, 2006. He was detained near Mura Torsa Bridge and on questioning he disclosed that a consignment of contraband articles would be transported in an Ambassador car bearing registration No. WMA 7400 and that he was involved in its transportation. PW 6, the Deputy Commandant and PW 8, the Inspector (G) intercepted the car at about 7 p.m. Ganja, wrapped in polythene sheets and placed in one black BSF steel box, a suitcase and one bed-roll was found in the boot of the car. The three persons, i.e., the appellants in CRA 24 of 2008, CRA 25 of 2008 and CRA 90 of 2008 sitting in the car were taken to the BSF Sonari campus for further action. They were searched in the presence of PW 6 who was a Gazetted Officer since no Magistrate was available in the area. The appellants could not produce any valid document to support their possession of the ganja. It was seized and the seizure memo was prepared in the BSF Head Quarters indicating that the total amount of ganja seized was approximately 63 kilos. The appellants were all apprehended. An FIR was lodged by PW 6 with the local police station, i.e., Kotwali police station. The case was registered and was tried as G.R. case No.303 of 2006.

3. In order to establish the case against the appellants, the prosecution has relied on the evidence of 9 witnesses, most of whom were members of the raiding party. PW 6 was the Deputy Commandant of the 142 Battalion, BSF at Cooch Behar at the relevant time. He led the raiding team. He has deposed that he received information regarding the transportation of contraband articles. Thereafter he and PW 9 and other personnel from the BSF went to the Cooch Behar area to apprehend the appellants. He has stated that on the way PW 9 contacted their source and obtained information regarding the exact location of the appellants. At this point of time he was also informed that a member of the BSF was one of those involved in the transportation of the contraband articles. He has spoken about Govinda Rao being found loitering near the bus stand at the tri-junction of New Cooch Behar to Tufanganj Road and Khagrabari to Tufanganj Road near Mura Torsa Bridge. According to this witness Govinda Rao was not supposed to be present in Cooch Behar as he had obtained leave for 60 days. He was, therefore, apprehended and he confessed that he was involved in the transportation of the contraband. This witness has stated that the car was intercepted and three persons were found sitting in that car. Govinda Rao identified those persons to be involved with him in the transportation. One of those persons apprehended, Haridas Chakraborty, the driver of the vehicle, was an ex-army man. This witness has stated that after ascertaining from the appellants th