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IN THE HIGH COURT AT CALCUTTA
DEBANGSU BASAK, MD. SHABBAR RASHIDI, JJ.
S.K. Hossain - Appellant
Versus
The State of West Bengal - Respondent
CRA. No. 238 of 2020
Decided On : 24-03-2023
NDPS ACT - SECTION 20(B)(II)(C) - SEARCH AND SEIZURE - VALIDITY - COMPLIANCE WITH SECTION 50 AND 52A - MIXING UP OF CONTRABAND - SAMPLES - VALIDITY - CHARGES FRAMED IN ENGLISH - IDENTIFICATION OF ACCUSED - NON-IDENTIFICATION BY SOME WITNESSES - EFFECT.
Fact of the Case:
The appellant was convicted under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 for possession of 360 kilograms of ganja. The prosecution's case was that the contraband was recovered from a specially made chamber in the driver's cabin of the offending truck, in the presence of independent witnesses and a gazetted officer.
Finding of the Court:
1. Compliance with the provisions of Section 50 of the NDPS Act was not required as no personal search of the appellant or the other accused persons was affected. 2. The search and seizure was made in compliance with the provisions of Section 42 of the NDPS Act, though the seizure was made from a truck in transit and from the joint conscious possession of the accused persons on a public pathway. 3. Mixing up of the contents of narcotic drugs recovered from different bags is not erroneous unless serious prejudice caused to the appellant is shown. 4. Minor discrepancies in the weight of the contraband would not vitiate the entire seizure. 5. If the chain of custody of the seized contraband is proved beyond reasonable doubts, there is no need to produce the entire contraband materials in court at the trial. 6. The charges were framed in English language, but the appellant never raised such a point that he was not able to understand the charges or the evidence led at the trial or even that the questions confronted to the appellant in his examination under Section 313 of Code of Criminal Procedure was not understood by the appellant. 7. Non identification of the appellant by some of the prosecution witnesses at the trial, cannot be taken to vitiate the entire trial.
Issues: 1. Whether compliance with the provisions of Section 50 of the NDPS Act was required in the present case? 2. Whether the search and seizure was made in compliance with the provisions of Section 42 of the NDPS Act? 3. Whether mixing up of the contents of narcotic drugs recovered from different bags is erroneous? 4. Whether minor discrepancies in the weight of the contraband would vitiate the entire seizure? 5. Whether the entire contraband materials need to be produced in court at the trial? 6. Whether the charges were framed in a language that the appellant could not understand? 7. Whether non identification of the appellant by some of the prosecution witnesses at the trial vitiates the entire trial?
Ratio Decidendi: 1. Compliance with the provisions of Section 50 of the NDPS Act is not required where personal search of the body of the accused is not involved. 2. The provisions of Section 42 of the NDPS Act are not attracted when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. 3. Mixing up of seized contraband and collection of samples therefrom cannot be faulted unless serious prejudice is shown to have been caused. 4. Minor differences in the weight of the seized contraband collected by the seizing officer and that recorded by the chemical examiner would not vitiate the veracity of the prosecution case. 5. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. 6. The language of the charges framed is not a ground to vitiate the trial, especially when the appellant never raised such a point that he was not able to understand the charges or the evidence led at the trial. 7. Non identification of the appellant by some of the prosecution witnesses at the trial, cannot be taken to vitiate the entire trial.
Final Decision: The appeal was dismissed and the impugned judgment of conviction was affirmed.
JUDGMENT
Md. Shabbar Rashidi, J.
1. The appeal is directed against the judgment of conviction dated August 10, 2020 and order of sentence dated August 12, 2020 passed by learned 5th Additional Sessions Judge cum Special Court under NDPS Act in connection with NDPS Case No. 59 of 2019 convicting the appellant under Section 20 (b)(ii)(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
2. One Sub-inspector of police of Sagardighi Police Station received source information at 10.15 hours on March 14, 2019 to the effect that the truck bearing Registration No. NL01N/9322 loaded with huge quantity of ganja was coming from Gauhati to Berhampore. The officer reduced the information into writing by lodging a GDE and informed the matter to his superior. According to the directions of the superior officer, the informant along with force proceeded from Sagardighi police station to work out the information. They also carried the necessary articles like Pin, paper, seal, weighing machine et cetera. At about 11. 05 hours the raiding team reached near the Dohalia More. At about 12. 25 hours a truck having registration No. NL 01/9322 was found coming from Moregram side. The said truck was detained and the driver, helper and another person sitting inside the Cabin were apprehended. The aforesaid persons were informed about the source information and the reason for their apprehension. They disclosed their identity as Johan Joy Reang, Biplab Riang and Hossain Sk. Thereafter, the informant searched for local witnesses. Two of them namely Sarwar Marsid and Bashiruddin Sk. agreed to stand witnesses to the search and seizure.
3. The detained persons were also intimated in writing that as the information had revealed commission of an offence under NDPS Act, there could be searched in presence of a Magistrate or a Gazetted Officer. As agreed by the detained persons, upon a request from the informant, the joint BDO of Sagardighi arrived at 15. 05 hours to act as a Gazetted Officer.
4. The apprehended persons were provided with the option to search the police personnel which they denied. Thereafter the police officer, in presence of the joint BDO and the local witnesses as well as in presence of the detained persons, the detained truck was thoroughly searched. During such search, a number of ganja packets of different weight wrapped with blue colour and polythene sheets and reddish colour polythene Tape concealed inside the driver’s cabin in a chamber behind the driver’s seat were recovered. The de facto complainant took 10 numbers of plastic packets of ganja each in three batches and 7 packets and 3 packets thereof in separate batches, and after removing all the rapper and polythene sheets which on weighing stood at 90 Kgs each of the 10 packet batches, 70 Kgs in the 7 bag batch and 20 Kgs in 3 packet batch. Two samples of hundred grams each were collected from each batch and were kept in two papers envelop. The remaining 89 kg and 800 grams of ganja of the ten packet batches, 69 Kgs 800 grams of ganja of the seven packet batch and 19Kgs 800 grams of ganja from 3 packet batch was poured inside big size plastic sacks. Mother packet, sample packets and wrapper and tapes were sealed and labelled with specific markings.
5. All the aforesaid articles including the truck were seized by the de facto complainant under proper seizure list signed by the detained persons, independent witnesses and the gazetted officer. In all, 360 kilograms of ganja were seized. The process of search and seizure continued between and 15. 25 hours 17. 35 hours. Upon interrogation, the detained persons disclosed that they have been involved in illegal dealing of ganja for many years and that the consignment recovered on the date of occurrence was to be delivered to one Rajesh Ghosh.
6. On return to the police station, the de facto complainant lodged the written complaint U/S 20 (C)/29 of the NDPS Act against the three apprehended accused persons.
7. On the basis of such written c
Compliance with the provisions of Section 50 of the NDPS Act is not required where personal search of the body of the accused is not involved, and the provisions of Section 42 of the NDPS Act are not....
The court upheld the conviction under the NDPS Act, establishing that procedural compliance and evidence corroborate guilt for possession of contraband.
The failure to comply with mandatory provisions of the NDPS Act regarding search and seizure renders the conviction suspect, requiring acquittal.
Possession of narcotic substances can result in conviction under NDPS despite procedural non-compliance if evidentiary strength supports prosecution's claims.
Non-compliance with mandatory provisions of the N.D.P.S. Act vitiates the conviction, especially where the prosecution relies solely on police testimony without corroboration from independent witness....
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