The presence of Gazetted Officers during the recovery of contraband exempted the case from Section 42(2) of the NDPS Act, and the prosecution proved possession beyond reasonable doubt.

JUDGMENT :

JOYMALYA BAGCHI, J.

1. Appeal is directed against judgment and order dated 12.04.2018 and 16.04.2018 passed by the learned Additional Sessions Judge, 1st Court, Cooch Behar (NDPS) in NDPS Case No. 22 of 2016 convicting the appellant for commission of offence punishable under Section 21(C) of the NDPS Act and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- in default, to suffer rigorous imprisonment for a year more.

Prosecution case:

2. Prosecution case as alleged against the appellant is as follows:

On 09.03.2016 at 10.05 AM, PW-1 received information that one empty truck bearing registration No. NL-01N-0394 carrying huge quantity of contraband of cough syrup was moving towards Assam from Alipurduar and the same would pass through NH-31 over Sankosh bridge. The information was diarized as Boxirhat P.S. G. D. Entry No. 69 of 2016 dated 09.03.2016 under Sections 21(c)/22(c) of the NDPS Act.

3. PW-1 intimated ASI, Gouranga Roy (PW-8) to detain the truck. Thereafter, PW-1 accompanied by PWs 3 and 4, Constables Ashim Das and Bimal Kumar Dey left for Sankosh bridge to work out the information. At 11.05 hours they reached Sankosh bridge and started checking vehicles. Around 11.30 hours a truck bearing registration No. NL-01N-0394 was seen coming from Alipurduar side.

4. The truck was intercepted. The appellant was identified as the driver of the truck. On interrogation he confessed he was carrying phensedyl syrup. As the place was highly congested and there was no place for checking the truck, it was brought in front of the garage of Nur Islam Mohammad near the Police Station for search. Requisition was made to SDO, Tufanganj to depute an Executive Magistrate for search. At 5.15 hours, Sri Manish Verma, SDO, Tufanganj (PW-7) and Sri Mathias Lepcha, BDO, Tufanganj-II (PW-9) came to the spot. In their presence the vehicle was searched and 5662 bottles of phensedyl syrup in 224 non transparent white polythene bags and 62 bottles in loose condition were found concealed under the extra wooden chamber of the floor of the truck. No document justifying licit possession of the cough syrup was produced. The cough syrup was seized in presence of independent witnesses viz. Dilip Barman (PW-5) and Soumallya Barman (PW-6) and samples were taken from the bottles, properly sealed and labelled in the presence of BDO.

5. On the written complaint of PW-1, Boxirhat P.S. Case No. 69 of 2016 dated 09.03.2016 under Sections 21(C)/22(C) of the NDPS Act was registered against the appellant and one Gopal Debnath, owner of the truck.

6. In conclusion of investigation, charge sheet was filed against the appellant and one Gopal Debnath, owner of the vehicle. However, Gopal Debnath could not be arrested and was declared as a proclaimed offender. Charge was framed against the appellant under Sections 21(C)/22(C) of the NDPS Act. Appellant pleaded not guilty and claimed to be tried.

7. In course of trial prosecution examined 10 witnesses and exhibited a number of documents including the chemical examiner’s report. Defence of the appellant was one of innocence and false implication.

8. In conclusion of trial, the trial Judge by the impugned judgment and order dated 12.04.2018 and 16.04.2018 convicted and sentenced the appellant, as aforesaid.

9. Mr. Sabir Ahmed, learned Advocate for the appellant contends there is no compliance of Section 42(2) of the NDPS Act. PW-1 is the seizing officer. He had not given intimation to the superior police officer within 72 hours of recovery. He also contends presence of independent witnesses (PWs. 2, 5 and 6) is doubtful. PW-1 claimed they accompanied the raiding party from NH 31 to the spot where recovery was made whereas the witnesses did not corroborate this fact. He also submits Sub-Divisional Officer (PW-7) and Block Development Officer (PW-9) were not interrogated during investigation. Accordingly, he prays for acquittal of the appellant.

10. Learned Advocate for the State submits r