The legal evidence of recovery and the presumption of guilt under the NDPS Act can uphold a conviction, even in the absence of independent witnesses and strict compliance with procedural requirements.

JUDGMENT :

Manojit Mandal, J.

1. This appeal is directed against the judgment and order dated 29th November, 2013 and 30th November, 2013 passed by the learned Additional District & Sessions Judge, 6th Court, Barasat, North 24-Parganas, in Case No. N-189 of 2010 convicting the appellant for commission of offence punishable under Section 20 (b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh, in default, to suffer rigorous imprisonment of 2 years.

2. On the basis of the written complaint (Exhibit 8) made by PW 3 Pranit Sarma, Intelligence Officer, NCB, EZU, Kolkata, the case was registered. It is alleged that Nirbhay Singh (PW 6), then posted as Superintendent, NCB, EZU, got a secret information that appellant would come to Bongaon Hospital area in the morning of 22.12.2010 for receiving Heroin from a person of Nadia. The information was reduced in writing and superior officer was intimated and on receiving necessary order, a batch of NCB Officers led by PW 6 proceeded to a raid on 22.12.2010 at about 3:00 hours and reached at Bongaon Hospital area at 6:00 hours and ambushed.

At about 8.45 hours, the NCB Officers noticed appellant entering the Bongaon Hospital area holding a nylon bazar bag. The appellant was intercepted in front of parking area of Ambulance, Bongaon Hospital, District-North 24-Parganas, and after knowing about his name and whereabouts, the officers suspecting possession of narcotic substances, expressed their intention to search the appellant. The appellant was acknowledged about his right to be searched in front of a Gazetted Officer or Magistrate in writing but the appellant denied to be searched before any such officer. Before conducting search the NCB officers called two onlookers as independent witnesses and then the appellant was offered to search the NCB officers and staff before such search, but the appellant declined.

Thereafter, the appellant handed over voluntarily nylon bazar bag and a mobile phone to the NCB officers.

On search of the said bag, a transparent polythene packet containing Ash coloured powder substance believed to be heroin/derivatives of opium was recovered and after testing of a small quantity by the drag detection kit, it responded positive to the test of heroin. On weighment, the recovered heroin came to be 1.025 kgs and on spot interrogation, the appellant disclosed that heroin was handed over to him outside the hospital and he could not say the name of that person but the appellant disclosed that he was engaged in dealing with the narcotic drug business with his friend, Sudip Dhali and Saimuddin of Palasi. The said substance and the mobile phone were seized by the Officers. It is stated that samples being 5 grams each were drawn and seizure memo was prepared and main bulk were separately packed, sealed and labeled. A notice under Section 67 of the NDPS Act was served at the spot upon the appellant to appear at the NCB Office, Kolkata on 22.12.2010 at 18.00 hours for further investigation. After completion of those formalities, the Officers and staff conducted search operation at the residential premises of the appellant and also the stationary shop of Sudip Dhali but no contraband was recovered. The said Sudip Dhali was not available. In response to the notice issued to the appellant, he tendered his voluntary statement at the office of NCB, Kolkata, thereby admitting his guilt and on reasonable belief, the appellant was arrested and produced before the Court. Subsequently, on 24.05.2010, the sample was sent for chemical examination and the result came positive towards presence of heroin and accordingly, the complaint was filed before the Court on 03.05.2011.

3. PW 7 Sri Debu Bandopadhyay being the Intelligence Officer at the Office of the NCB, Kolkata took over the case as the Investigating Officer (hereinafter referred to as I.O.) Th