Total non-compliance with Section 42 of the NDPS Act renders the search and seizure invalid, compromising the prosecution's case and necessitating overturning of the conviction.

JUDGMENT :

Sanjeev Kumar Sharma, J.

Heard Mr. Surajit Das, learned counsel for the appellant. Also heard Mr. R J Baruah, learned Addl. Public Prosecutor for the State of Assam.

2. This is an appeal under Section 415 of the BNSS , 2023 against the impugned judgment and order dated 30.07.2024 passed by the learned Special Judge, (Addl.) Dhubri in Special (NDPS) Case No. 179 of 2023 arising out of Golokganj P.S Case No. 193 of 2023 convicting the accused/appellant U/S 22(C) of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 10 (ten) years along with a fine of Rs. 1,00,000/- (Rupees One Lakh) only, and in default of payment of fine, another rigorous imprisonment for another 1 (one) year.

3. The prosecution case, in brief, is that the informant S.I Jitumani Baishya lodged an FIR with the O/C of Golakganj P.S on 12.04.2023 stating that I/c of Chagolia O.P had received information from reliable source that a huge quantity of contraband was being kept stored at the house of Moksedul Hoque (A-1) of Chagolia Part-2, backside of Pundibari L.P School and was being sold in the locality. Accordingly, GDE No. 194 dated 11.04.2023 was entered and O/C of Golakganj P.S along with other senior officers, were informed, and he was ordered to take necessary action. Written authorization was issued to him by DSP(HQ) as empowered by Govt. of Assam vide Notification No. Ex. 145/85/301 dated 15.05.1995 under Section 41 (2) of NDPS Act. Thereafter, he along with other staff rushed to the spot and arrived at the house of A-1 and met the independent witnesses namely Sankar Sarkar, Patano Adhikary, Manobindu Sarkar and Sofidul Miah. Thereafter, the police team thoroughly searched the house of A-1 and recovered 18 numbers of Eskuf cough syrup of 100 ML each, suspected to have codeine phosphate from the drain kept concealed near the stored bamboo firewood from his possession and seized the same in presence of witnesses following the formalities. The accused person was apprehended and then, the police team returned to the police station along with the accused and the seized articles. Accordingly, the instant FIR was lodged.

4. On completion of investigation, charge-sheet bearing CS No. 234/2023 dated 25.06.2023 was submitted against A-1 under Section 21 (c) of NDPS Act.

5. Charge under Section 22 (c) of NDPS Act was framed against the accused who pleaded not guilty and claimed to be tried. In course of trial, prosecution side examined 6 (six) PWs and 2 (two) CWs. Further, learned counsel on behalf of the accused filed a petition bearing No. 670 dated 25.06.2024 stating that examination of FSL Expert is not vital and contents of the same were accepted by him. Moreover, PW- Nurul Islam and Rofiqul Alom were struck off vide order dated 03.02.2024 and 30.03.2024, respectively.

6. PW-1 S.I Jitumani Baishya in his evidence has stated that the I/C Chagolia Out Post under Golakganj P.S received secret information that one person namely Moksedul Hoque of village Chagolia Part-II had kept concealed suspected contrabands in his house and he was selling those drugs to the nearby area. Accordingly, GDE No. 194 dated 11.04.2023 was made. He informed his superior authorities over phone regarding the matter. He was issued authorization letter for conducting search and seizure by DSP(HQ). Thereafter, he along with other police personnel went to the residence of the accused and found him near Pundibari L.P School located near his house. He informed the VDP Secretary along with his team to witness in their search and seizure operation. Witnesses reached the place of occurre