IMPORTANT POINT
The mandatory requirement of Section 52A of the NDPS Act for drawing samples in the presence of a Magistrate is crucial for the admissibility of evidence in drug-related offenses.

JUDGMENT :

Joymalya Bagchi, J.

1. Appeal is directed against judgment and order dated 04.05.2018 & 08.05.2018 passed by learned Additional Sessions Judge, 12th Court, Alipore, South 24-Parganas in Sessions Case No.04 (02) of 2016 (Sessions Trial No.03 (04) of 2016) convicting the appellants for commission of offence punishable under Sections 17(c)/18(c)/29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for 15 years each and to pay a fine of Rs.1, 50,000/-each, in default, to suffer rigorous imprisonment for one year each.

Prosecution case:-

2. Genesis of the case as narrated in the FIR is as follows :

On 10.10.2015 at about 9.00 hrs. SI Shyama Prasad Biswas (PW 1) received credible information from source that two drug dealers would come to Ekbalpore area to sell narcotics in the afternoon. Accordingly, PW 1 formed a raiding party comprising of PW 3 and others. The party lay in ambush near the spot i.e. 55/1 Diamond Harbour Road, P.S. Ekbalpur, Kolkata – 700027 (near Relax Beer Bar). At about 12:50 P.M. source pointed out two persons coming to the spot. PW 1 detained the suspects and gave them offer to be searched before a Gazetted officer or Magistrate. The suspects agreed to be searched before a Gazetted officer. Accordingly, intimation was given to PW 6, a Gazetted officer to be present at the spot. PW 6 came to the spot and the suspects i.e. the appellants herein were searched.

3. From appellant no.1 one black coloured rexine bag was recovered. There were three polythene packets in the bag containing black sticky substance weighing 2.6 kgs. which was suspected to be opium. From appellant no.2 another bag was recovered. The bag contained one black coloured polythene and two transparent polythene packets containing black sticky substance weighing 2.240 kgs. suspected to be opium. PW 1 took 50 gms. of opium from each of these packets. Remainder consignment was kept in a separate packet.

4. Appellants were arrested. Mother consignment along with the samples was brought to the police station.

5. Written complaint (Exhibit – 7) was lodged by PW 1 which was treated as FIR being Ekbalpore Police Station Case No.446 of 2015 dated 10.10.2015 under Sections 17(c)/18(c)/29 of the NDPS Act.

6. In course of trial, prosecution examined 8 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication.

7. In conclusion of trial, trial Judge by the impugned judgment and order dated 04.05.2018 & 08.05.2018 convicted and sentenced the appellants, as aforesaid.

Arguments at the Bar:-

8. Mr. Ayan Bhattacharjee, learned Advocate for the appellants submits Section 52A of the NDPS Act was not complied. He elaborates samples were drawn at the spot instead of being drawn in presence of Magistrate as per sub-section (2) of Section 52A of the NDPS Act. As the sampling was contrary to law, the report of the chemical examiner is of no value. Accordingly, he prays for acquittal of the appellants.

9. Learned Advocate for the State contends samples were drawn in presence of independent witness. Malkhana registers were also produced. Chemical examiner (PW 4) found the seals of the samples intact. Chain of custody has been established. Chemical examiner’s report showed presence of opium alkaloids. Hence, prosecution case is proved beyond doubt. Accordingly, the appeal is liable to be dismissed.

10. PW 1 (SI Shyama Prasad Biswas) lodged written complaint (Ext.7) which was treated as FIR. He proved the recovery of black sticky substance suspected to be opium from the bags carried by the appellants. He proved the seizure list. He drew samples at the spot. He prepared an inventory list as per the direction of the Officer-in-charge, Ekbalpore Police Station.

11. PW 3 (Raj Kumar Some) is a member of the raiding party. He has corroborated PW 1 and supported the prosecution case.

12. PW 5 (Bimalendu Dutta) is an independent witness. He supported the recovery of consignment suspected to be opium from the appel