Strict compliance with Section 50 of the NDPS Act is mandatory, and failure to comply vitiates the seizure and consequential conviction.

JUDGMENT :

Joymalya Bagchi, J.

1. Appellants have assailed judgment and order dated 03.12.2019 and 04.12.2019 passed by the learned Judge, Special Court under NDPS Act-cum-learned Additional Sessions Judge, 12th Court, Alipore, 24- Parganas (South) in NDPS Case No.36 of 2015 convicting the appellants for commission of offence punishable under Section 22(c) read with Section 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for six months more.

2. Crux of the prosecution case is to the effect on 07.10.2013 Sri Debasish Chowdhury, Superintendent, Narcotic Control Bureau (PW3) received information two persons from Village: Baro Nalda, Dist.: Nadia will be coming to Sealdah station to deliver a consignment of preparation of ‘Alprazolam’ to others. The information was reduced into writing and submitted before the Zonal Director viz. Sri Subrata Biswas. Upon necessary movement order being obtained, a team comprising of Sri Debasish Chowdhury (PW3), Surajit Sen (PW2), Debasish Bhattacharjee (PW4) and others proceeded towards Sealdah Station. They reached the spot at 1:00 P.M. and kept surveillance. At about 01:30 P.M. the source pointed out two suspects. The NCB team members encircled them. One of the suspects was carrying a khaki colour backpack and the other was accompanying him. The NCB officers disclosed their identity and expressed their intention to search both of them. Offer was given to the suspects who divulged their identity as the appellants that they had a right to be searched before a Magistrate or a Gazetted Officer or before a Gazetted Officer, who is a member of the raiding party. The appellants agreed to be searched before a Gazetted Officer, who is a member of the raiding party. Upon search of the khaki colour backpack of appellant viz. Ali Hossain Sk. @ Ali Hussain Seikh, a transparent polythene packet containing some cream coloured powder was recovered. A railway ticket from Palassey to Sealdah, cash of Rs.380/- and one black Karbon mobile were also recovered from his possession. From the possession of the appellant viz. Ishdan Seikh, similar train ticket, cash of Rs. 420/- and a black Karbon mobile were also recovered. The cream coloured powder was suspected to be a preparation of ‘Alprazolam’ and was weighed. Total weight was found to be 232 gms. Two samples of five grams each were taken from the suspected material. They were kept in separate envelopes marked ‘S1’ and ‘S2’ respectively. Remaining material was kept in an envelope marked as ‘M’. Envelopes were duly signed by the members of the raiding party, appellants and independent witnesses. Other articles recovered from the appellants including cash was also seized. After search, notices were issued under Section 67 of the NDPS Act to the appellants and their statements were recorded. Thereafter, the appellants were arrested and produced in court. In course of investigation, samples were sent for chemical examination and report of the chemical examiner was obtained. The said report disclosed presence of ‘Diazepam’ and ‘Alprazolam’ in the samples. Petition of complaint was filed against the appellants. Charge was framed under Section 22(c) read with Section 29 of the NDPS Act. Appellants pleaded not guilty and claimed to be tried. In course of trial, prosecution examined five witnesses and exhibited a number of documents including chemical examiner’s report as Exhibit-18. Defence of the appellants was one of innocence and false implication. In conclusion of trial, learned trial Judge by the impugned judgment and order dated 03.12.2019 and 04.12.2019 convicted and sentenced the appellants, as aforesaid.

3. Mr. Soumyajit Das Mahapatra, learned advocate appearing for the appellant viz. Ali Hossain Sk. @ Ali Hussain Seikh in CRA 744 of 2019 submits search was conducted in violation of Section 50 of the NDPS Act. Appellant viz. Ali Hossain Sk. @ Ali Hussa