Non-compliance with mandatory provisions of the NDPS Act, such as section 42(2) and section 50(4), can render the prosecution case doubtful and lead to acquittal.

JUDGMENT :

Ananda Kumar Mukherjee, J.

1. This appeal has been preferred by the convict appellant under Section 374 (2) of the Code of Criminal Procedure, 1973, assailing judgment and order of conviction dated 15.9.2003 and sentence dated 16.9.2003 passed by learned Judge Special Court under NDPS Act Birbhum, Suri, in connection with Case no. 10 of 1996 whereby the appellant was convicted for the offence punishable under section 20(b) of the NDPS Act and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.20,000/- in default to suffer rigorous imprisonment for six months.

2. The impugned judgment has been assailed on the grounds that the conviction and sentence passed against the appellants is bad in law and due to failure on the part of the Learned Trial Court in appreciating the evidence in its true perspective. It is case of appellant that prosecution has failed to prove the charge against the appellant under section 20(b) of the NDPS Act beyond reasonable doubt and that no independent witness has been examined on behalf of the prosecution and further more prosecution has not been able to establish that the mandatory provisions of section 50 of the NDPS was compiled with at the time of alleged search of the female accused and seizure of the contraband substance.

3. Mr. Hossain, learned advocate argued on behalf of the appellant that prosecution has miserably failed to establish the charge but learned trial judge without considering the non-compliance of the mandatory provisions of the NDPS Act has convicted and sentenced the appellant which, is liable to be set aside.

4. Learned advocate for the State/respondent submitted that admittedly the appellant is a female accused but the contraband substance consisting of 8 Kgs. of Ganja (cannabis) was seized from her possession while she was carrying it in a suitcase and had entered the house of co-accused Benarasi Das alias Bona Das at Choto line para. It is argued that a Gazetted Officer was present at the time search and seizure was carried out and the provisions under section 50(2) of the NDPS Act was complied. Learned prosecutor further argued that the evidence adduced by the prosecution witnesses is cogent and consistent in nature and the charge has been proved against the accused person beyond shadow of doubt. It is urged that there is no infirmity in the impugned judgment of conviction and sentence passed against the appellant.

5. I have considered the arguments advanced by the learned advocates for the appellant and the respondent/ State. The fact of the case, in brief, is that on 5.8.1996 at 3:15 P.M. police from Ahamedpur Fari, under Sainthia P.S along with Circle Inspector and O.C Ahamedpur Fari proceeded to Choto line para Rail quarters to work out a secret information that a woman having Narcotic substance in her possession was proceeding to the house of accused Benarasi Das at Choto line para. The appellant was found entering the house of Benarasi Das with a suitcase in her hand. On interrogation she disclosed her name as Namita Valla the police thereafter asked the appellant/accused to open the suitcase and it was found that she was carrying 8 Kgs of Ganja wrapped in green polythene packets inside the suitcase. The ganja was seized and weighed in presence of witnesses and samples were collected in small packets which was sealed and lebelled. The contraband substance appearing to be ganja was seized under a seizure list. Both Namita Valla and Benarasi Das were arrested and were taken to Ahamedpur police outpost (Fari) with the seized material.

6. A.S Mondal, Sub-Inspector of police lodged a written complaint at Ahamedpur police outpost. S.I Deb Narayan Datta (PW-8) took up investigation as endorsed by the officer-in-charge of Sainthia Police Station. The samples were sent for forensic examination. After completion of investigation and collection of forensic report, charge sheet was submitted under section 20 (b) and section 25 of the Narcotic Drugs