Substantial compliance with statutory requirements for search and seizure, and the applicability of specific sections of the N.D.P.S. Act to the facts of the case.

JUDGMENT

Joymalya Bagchi, J. - Appeals are directed against the judgment and order dated 29.06.2015 and 30.06.2015 passed by learned Judge, Special Court under N.D.P.S. Act and Additional Sessions Judge, 12th Court, Alipore, 24-Paraganas, South in Sessions Trial No. 02(08)2013 arising out of Sessions Case No. 01(07)2013 convicting the appellants for commission of offence punishable under Sections 20(b)(ii)(C) read with Section 29 of the N.D.P.S. Act and sentencing them to suffer rigorous imprisonment of 12 years each and to pay a fine of Rs. 2,00,000/- each in default, to suffer further rigorous imprisonment for two years more.

2. Prosecution case, as alleged against the appellants, is to the effect that P.W.2 Priyanka Mondal who was attached as S.I. Thakurpukur police station received credible information on 10.04.2013 around 12.10 p.m. that suppliers of ganja from Nungi Batanagar would be coming in a Mahindra Maxim car bearing No. WB 41F 7383 and would be passing through Bagpota main road. She reduced such information into writing and sought permission from the Deputy Commissioner of Police, South West Division, Behala, Kolkata to conduct raid. Upon receipt of permission, P.W. 1 diarised such information at the police station as GDE No. 1058 and proceeded for raid with a team of police personnel including one S.I. Arijit Chattopadhyay, P.W. 6. At 2.00 p.m. they reached Keyatala Math at Bagpota main road. At 2.30 p.m. they found the aforesaid vehicle approaching towards north. They apprehend the vehicle beside Keyatala more at Bagpota Road. They found two persons in the vehicle. They disclosed to the said persons that they had an information that the vehicle was transporting huge quantity of ganja through Bagpota Main Road to Behala. In the meantime, a number of people arrived at the spot. Raiding party requested two of them viz., Bapi Biswas (P.W. 4) and Biswajit Dey (P.W. 5) to join the search. The said persons agreed to do so. Thereafter, P.W. 2 made oral offer to the aforesaid persons that they were legally entitled to be searched in presence of Gazetted Officer or Magistrate. The option was also given in writing and the aforesaid persons i.e. the driver and assistant of the vehicle who disclosed their names as Abhijit Das and Nil Kamal Gon respectively and expressed their desire to be searched before a Gazetted Officer. They affixed their signatures to the consent endorsed in the aforesaid document. P.W. 2 searched for a Gazetted Officer in the locality but could not find one. She informed her superiors to arrange to send a Gazetted Officer to the post. After some time, a Gazetted Officer namely, Inspector Swapan Kr. Mondal (P.W. 3), the then Additional Officer-in- charge of Parnasree Police Station arrived at the spot. Additional Officer- in-charge informed the aforesaid persons that he was a Gazetted Officer and had come to the post as they had requested to be searched in the presence of a Gazetted Officer. Thereafter, Additional Officer-in-charge informed detained persons that they were legally entitled to search P.W. 2. Thereupon both the persons searched P.W. 2 but nothing could be recovered. The option given by P.W. 3 was written down and the signatures of the accused persons and S.I. Arijit Chattopadhyay were endorsed thereon. Thereafter, P.W. 2 searched the vehicle. In course of search, 46 rectangular boxes of different colours wrapped in a black polythene packet was recovered from the vehicle. The packets weighed 468 kgs in all. The packets were opened and it was suspected that they contained ganja. Samples were taken from each of the packets and put into a brown packet which weighed around 900 grms. Thereafter, all the 46 packets as well as the sample packet were sealed, labelled and signed by P.W. 2, Gazetted Officer, independent witnesses and the accused persons. Vehicle was also seized. P.W. 2 brought the seized articles along with the vehicle and the detained persons to Thakurpukur Police Station and handed t