Non-compliance with Section 52A of the NDPS Act, requiring samples to be drawn and certified by a Magistrate, vitiates the trial as it fails to produce primary evidence.

JUDGMENT :

[M. Choudhury, J]

A. The Assail :-

1. Both these two criminal appeals, preferred under Section 374[2], Code of Criminal Procedure, 1973 [‘the Code’ or ‘CrPC’, for short] read with Section 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 [‘the NDPS Act’, for short] are directed against a Judgment and Order dated 03.10.2016 passed by the Court of learned Sessions Judge [FTC] No. 3, Kamrup [Metro], Guwahati [hereinafter referred to as ‘the Special Court’, for short] in NDPS Case no. 24 of 2015, which arose out of Customs Case no. 06/CL/NARC/AS/GAU/2014-15 dated 05.12.2014. The criminal appeal, numbered as Criminal Appeal no. 67 of 2019 is preferred by the accused-appellant, Binod Yadav [hereinafter also referred to as ‘A-1’, at places, for easy reference] whereas the other criminal appeal, numbered as Criminal Appeal no. 283 of 2017 is preferred by the accused-appellant, Avneesh Kumar Rajput [hereinafter also referred to as ‘A-2’, at places, for easy reference].

B. The verdict of the Special Court :-

2. By the Judgment and Order dated 03.10.2016, both the accused-appellants have been convicted for the offence under Section 20[b][ii][C] of the NDPS Act, 1985 [‘the NDPS Act’, for short]. On finding the accused-appellants guilty of the offence under Section 20[b][ii][C], NDPS Act, they have been sentenced to undergo rigorous imprisonment for fifteen years each and to pay a fine of Rs. 1,00,000/-each, in default of payment of fine, to undergo imprisonment for another year. It has been observed that the period already undergone in jail by the accused-appellants shall be set-off under Section 428, CrPC.

C. The case of the prosecution :-

3. The case of the prosecution was stated in a Report filed by the Investigating Officer [I.O.] of the case before the Court of learned Chief Judicial Magistrate, Kamrup [Metro], Guwahati on 06.12.2014 in connection with Customs Case no. 06/CL/NARC/AS/GAU/2014-15 dated 05.12.2014, immediately after the alleged seizure of 1093.68 Kgs of Cannabis [Ganja] on 05.12.2014. For ready reference, the relevant excerpts of the said Report filed by the I.O. [P.W.8], an Inspector of Customs at the Anti-Smuggling Unit, Customs Division, Guwahati and empowered under Section 53 of the NPDS Act, are reproduced hereinbelow :-

1. That on 05.12.2014, acting on specific information the officers of Anti-Smuggling Unit, Guwahati Customs Division, Guwahati [hereinafter referred to as the said officers] effected seizure of a 29 [twenty nine] packages containing Ganja [Cannabis] from two closed body 6 wheeler container truck bearing registration no. HR-65-7758 and HR-65-8403 under the provisions of the NDPS Act, 1985, after observing all the requisite formalities. The persons mentioned above were arrested under Section 43 the NDPS Act, 1985.

2. That on 04.12.2014 at around 22-30 hrs specific information was received to the effect that a huge quantity of Ganja contained in 25/30 packages would be loaded in two white coloured closed body container trucks bearing registration no. HR-65-7758 and HR-65-8403 at Rowta area around midnight. It was further informed that both the trucks are plying under the banner of SAFEXPRESS will be loaded with tea. That after loading of the Ganja both the trucks will proceed out of the region and are expected to cross Baihata Chariali area. The information received is reduced in writing and handed over to Shri D.C.Bania, Superintendent, Anti-Smuggling Unit, Customs Division, Guwahati for information and necessary action.

3. Accordingly, on receipt of the information a team of officers is formed comprising of Shri D.C. Bania, Superintendent, Shri Rideep Hazarika, Superintendent, M.I. Singh, Inspector, Ksh Ramesh Singh, Inspector, P.K.Deka, Inspector, Shri Hara Ratan Singh, Shri N. Mondal, Sepoy and Shri Rajen Sharma, H/Havilder. Thereafter the team led by Shri D.C. Bania, Superintendent proceeded to Baihata area and laid naka at suitable place on the NH-31 from around 01-0 hrs on 05.12.