JUDGMENT :

JOYMALYA BAGCHI, J.

1. Appeal is directed against the judgment and order dated 17.02.2020 passed by learned Additional Sessions Judge, 1st Court, Cooch Behar (Special Court under NDPS Act) in NDPS Case No. 59 of 2018 arising out of Sahebganj Police Station Case No. 352/18 dated 31.07.2018 convicting the appellant for commission of offence punishable under section 20(b)(ii)(C) of the NDPS Act and sentenced him to suffer rigorous imprisonment for 15 years and to pay a fine of Rs. 1,50,000/- in default, to suffer rigorous imprisonment for two years more.

2. Prosecution case levelled against the appellant is to the effect that on 31.07.2018 at 6:30 hours one Jay Prakash, Assistant Commandant of 38 BN BSF at BOP Gitaldah (PW-5) who was also in-charge of BOP Karala received information from unit ‘G’ (Intelligence Cell) that large quantity of ganja is stored in the house of one Jaidul Mia of Karala which was situated on the other side of the border fence. He informed his superior and as per their direction he directed Post Commander Inspector Bachhan Singh (PW-1) to reach the spot and cordon the house of Jaidul. At 7:30 hours Bachhan Singh and his force went out from the BOP Karala vide Karala BOP GD Entry No. 13 dated 31.08.2018 and reached the spot. They cordoned the house of one Jaidul Mia. At that time, two persons fled away from the house. Bachhan Singh requested Jay Prakash, Assistant Commandant to come to the spot and conducted the search. Jay Prakash tried to contact a Magistrate for conducting search but failed. He reached the spot at 8.30 hours along with stationery and weighing machine. In the presence of independent witnesses he knocked the door of the house. Appellant opened the door. He was informed that the raiding party wished to search the house. Initially, appellant was non-cooperative. Jay Prakash served a notice upon the appellant under section 50 of the NDPS Act and informed him of his right to be searched before a Magistrate or gazetted officer. He refused the offer. Upon search a white coloured sack containing ganja was recovered. On weighment it was found the contraband weighed 68.5 kgs. The sack containing ganja was marked as ‘Exhibit A’. Two samples weighing 100 grams each were drawn and marked as ‘Exhibit A1’ and ‘Exhibit A2’. Seized items were packed, labelled and sealed. ‘No damage certificate’ (Exhibit 5) was issued. Appellant was arrested and brought to the police station along with the contraband. Jay Prakash lodged written complaint with the officer-in-charge of Sahebganj Police Station resulting in registration of Sahebganj P.S. Case no. 352 dated 31.07.2018 under section 20(b)(ii)(C) of the NDPS Act against the appellant and one Jaidul Mia.

3. In the course of investigation, the samples were sent for chemical examination. Chemical examiner’s report (Exhibit 14) showed presence of ganja.

4. Charge-sheet was filed. Charges were framed against the appellant and Jaidul Mia under sections 20(b)(ii)(C)/29 of the NDPS Act. They pleaded not guilty and claimed to be tried.

5. Prosecution examined 14 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication.

6. In conclusion of trial, the trial Judge by impugned judgment and order dated 17.02.2020 convicted and sentenced the appellant as aforesaid but by the self same judgment and order Jaidul Mia was acquitted.

7. Mr. Basu senior Counsel with Mr. Mitter argued the mandatory requirements of section 42(2) of NDPS Act have not been complied with. GD Entry No. 2090 dated 31.07.2018 (Exhibit 15) does not record the prior information which led to the alleged recovery. No endorsement showing communication of the prior information to a superior officer has been proved. There is total non-compliance of the requirements of section 42(2) of NDPS Act. Secondly, he submitted no label and seal were found on the white sack containing the contraband. Identity of the contraband has not been established. Thirdly, he