Strict compliance with Section 50 of the NDPS Act is required for the search and recovery of narcotic substances, and failure to comply can lead to the invalidation of the seizure.

JUDGMENT

Joymalya Bagchi, J. - The appeal is directed against judgment and order dated 17.06.2016 and 18.06.2016 passed by the learned Additional Sessions Judge, 6th Court, Barasat, North 24-Parganas in NDPS Case No. N- 136/2014 (1040 of 2014) convicting the appellant for commission of offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentencing him to suffer rigorous imprisonment for twelve years and to pay a fine of Rs. 1,00,000/-, in default, to suffer simple imprisonment for one year more.

2. The prosecution case as alleged against the appellant is to the effect that on 23.08.2014 at about 21:15 hrs. the appellant was intercepted by a group of police officers attached to Duttapukur Police Station under the leadership of SI Debnath Chakraborty (PW5) on the suspicion that he was carrying narcotic substance in a bag. Matter was intimated to IC, Duttapukur who came to the spot. Thereafter, IC, Duttapukur offered the appellant to search the members of the raiding party. Upon search a nil seizure list was prepared. Then IC, Duttapukur gave offer whether the accused was willing to be searched by a Gazetted Officer present at the spot or a Magistrate. The appellant expressed willingness to be searched in presence of IC, Duttapukur. Thereupon body of the appellant was searched and from a jute gunny bag 22.8 kgs. of Ganja was recovered. Samples were prepared from the seized consignment which were sealed and labelled. PW5 arrested the appellant and along with the articles produced him before the police station. He also lodged written complaint at the police station resulting in registration of Duttapukur Police Station Case No.656 dated 24.08.2014.

3. Charge was framed under Section 20(b)(ii)(c) of the NDPS Act. Appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined 8 witnesses. However, Gazetted Officer namely, IC, Duttapukur was not examined. In conclusion of trial, the learned trial Judge by the judgment and order dated 17.06.2016 and 18.06.2016 convicted and sentenced the appellant, as aforesaid.

4. Mr. Dhananjay Banerjee, learned advocate appearing for the appellant challenged the conviction primarily on two grounds. Firstly, it is contended appellant had not been identified in court by most of the prosecution witnesses. Failure to identify the appellant casts serious doubt with regard to the truthfulness of the said witnesses and adversely affects the credibility of the prosecution case. Secondly, it is argued there was no compliance of Section 50 of the NDPS Act in the present case.

5. Body of the appellant was searched prior to search of his bag resulting in recovery of narcotic substance. Right of the appellant to be searched before a Gazetted Officer or a Magistrate had not been communicated to him prior to his search. Hence, the search as well as the conviction is vitiated in view of the law declared in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609.

6. In reply, Mr. Sanjay Bardhan, learned advocate along with Mr. Saryati Datta, appearing for the State submits appellant was arrested with narcotic substance from the spot. This fact has not been disputed by him in course of trial or during his examination under Section 313 of the Code of Criminal Procedure. Failure to identify the appellant by prosecution witnesses including independent witnesses may be due to loss of memory and imperfect recollection. Independent witnesses have supported the members of the raiding party with regard to recovery. Chemical examiner's report shows that the seized consignment contained Ganja. As recovery had been made from a bag, there is no requirement of compliance of Section 50 of the NDPS Act. Without prejudice to the aforesaid submissions, it is argued offer was made to the appellant to be searched before a Gazetted Officer present at the spot or a Magistrate. Hence, the prosecution case is proved beyond doubt.

7. PWs.3 to 6 are members of the raiding party. They are police