IMPORTANT POINT
The judgment establishes that non-compliance with the procedural requirements for search and seizure under the NDPS Act and the CrPC can lead to the exclusion of evidence and the overturning of convictions.

JUDGMENT :

M. Choudhury, J.

The present criminal appeal under Section 374[2], Code of Criminal Procedure, 1973 [‘the Code’ or ‘the CrPC’, for short] has been preferred to assail a Judgment and Order dated 06.08.2021 passed by the Court of learned Special Judge, Nalbari [‘the Special Court’, for short] in NDPS Case no. 24 of 2019. By the Judgment and Order dated 06.08.2021, the learned Special Court has convicted the accused-appellant for the offence under Section 22[c] of the Narcotic Drugs and Psychotropic Substances Act, 1985 [‘the NDPS Act’, for short] and she has been sentenced to undergo rigorous imprisonment for 12 [twelve] years and to pay a fine of Rs. 1,00,000/-, in default of payment of fine, to undergo simple imprisonment for another one year. It has been observed by the learned Special Court that the accused-appellant would not be entitled to the benefit under Section 428, CrPC.

2. The investigation into the case, Mukalmua Police Station Case no. 314/2019, which resulted into the trial of NDPS Case no. 24 of 2019, commenced on the basis of a First Information Report [FIR] lodged by one Biren Boro, a resident of Village -No. 2 Ghoga [Madlabori], Police Station – Mukalmua, District – Nalbari [the respondent no. 2] before the Officer In-Charge, Mukalmua Police Station on 30.06.2019. In the FIR, the informant-respondent no. 2 – Biren Boro [P.W.1] had inter alia alleged that the accused had been selling intoxicated substances in their locality from an earlier period. The informant had stated that though the local people had been telling her to stop from carrying out such kind of business, the accused did not stop doing the business. As the business carried out by the accused was causing disturbances in the locality, the local residents, on 30.06.2019, apprehended the accused and recovered the suspected contraband items, mentioned in the FIR, from her house. The matter was thereafter, informed to the Police at Mukalmua Police Station and the suspected contraband items, so recovered, were handed over to them in presence of the Headman of the Village.

3. On receipt of the FIR, the Officer In-Charge, Mukalmua Police Station registered the same as Mukalmua Police Station Case no. 314/2019 for the offence under Section 22[c], NDPS Act on 30.06.2019 and took up the investigation of the case himself. The accused was taken into custody on 30.06.2019 itself. On being handed over the suspected contraband items, so recovered by the villagers, the Police personal who arrived at the place of occurrence [P.O.], on receipt of information to that effect, prepared a Seizure List, Ext.-2 in connection with the suspected contraband items and took the accused to the Police Station along with the suspected contraband items, so recovered and seized from the house of the accused.

4. During the course of investigation, the Investigation Officer [I.O.] & Officer In-Charge, Mukalmua Police Station, P.W.9 recorded statements of a nos. of witnesses under Section 161, CrPC and drew up a Sketch Map of the P.O. [Ext3], which was stated to be the courtyard of the house of the accused. On 30.06.2019, the I.O., P.W.9 also prepared an Inventory of the seized contraband items [Ext.-7]. The I.O., P.W.9 submitted an application, on 01.07.2019, before the jurisdictional Magistrate by submitting the Seizure List [Ext.-2] and the Inventory [Ext.-7]; and producing the seized contraband items before him, making a prayer to allow drawal of samples from them and to send the samples for examination to the Forensic Science Laboratory [FSL]. On being permitted by the learned Magistrate, samples were drawn from the seized contraband items and forwarded those samples to the FSL, Directorate of Forensic Science [DFS], Assam at Kahilipara, Guwahati for examination. As in the meantime, P.W.9 was transferred, another Investigating Officer, Utpal Kumar Nath completed the remaining part of the investigation by collecting the FSL Report from the Directorate of Forensic Science [DFS