Non-compliance with Section 42 of the NDPS Act undermines the validity of search and seizure, impacting the prosecution's case significantly.

JUDGMENT :

Sanjeev Kumar Sharma, J.

1. Heard Mr. B. Halder, learned counsel for the appellant and also heard Mr. P. Lahkar, learned Addl. P.P. for the State.

2. This appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 by the appellant, namely, Rajesh Sarkar impugning the judgment and order dated 25.07.2023 passed by the learned Special Judge Jorhat in Special (NDPS) Case No. 60/2021 whereby the present appellant has been convicted under Section 20 (b)(ii)(C) of the NDPS Act, 1985 and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine further rigorous imprisonment for 3 months.

3. The facts giving rise to the instant case are as follows:-

On 24-06-2021, Md. Firdus Ahmed, the then S.I. (P), Pulibar Police Station, lodged an F.I.R., stating that on the same day, at about 03:20 p.m., he received a secret information that one Sri Rajesh Sarkar, S/o, Late Sufal Sarkar, Resident of Sokolani Pathar Gaon, P.S. Pulibar, District-Jorhat, was selling 'ganja' [Cannabis] since long, and now he had stocked the said illegal 'ganja' in his residence and selling the same from his house to the nearby local people as well as might take it to some other unknown location for delivery.

The Officer also stated that he then made G.D. Entry vide Pulibar P.S. G.D. Entry No. 463 dated 24/06/2021, and informed the matter to his senior officials. Thereafter, he went to the house of aforesaid Sri Rajesh Sarkar along with the Officer-in-charge, Pulibar P.S. and other police personnel and searched the house of Sri Rajesh Sarkar. On search, he recovered 06 (six) packets of suspected 'ganja' [Cannabis] weighing 40 kg & 306 grams from the possession of Sri Rajesh Sarkar, which was duly seized in presence of local people. That, at the time of search and seizure of those contraband, the accused Sri Rajesh Sarkar was present in his residence but he could not give any satisfactory explanation about the source of the seized 'ganja'. Upon competition of investigation, the I.O. submitted the charge-sheet u/s 20 (b) (ii) (C) of NDPS Act, 1985.

After receipt of the case record and after hearing the accused as well as the learned Special Public Prosecutor and after going through the materials on record, charge u/s 20 (b) (il) (C) of NDPS Act was framed against the accused Sri Rajesh Sarkar. The charge was read over and explained to the accused and on being asked, he refused to plead guilty and claimed to be tried. During trial, prosecution side examined 07 (seven) witnesses. The accused was examined u/s 313 Cr.P.C. during which he denied the truthfulness of the testimony of the prosecution witnesses and pleaded innocence. The accused declined to adduce any evidence in defence.

4. The learned Special Judge after the conclusion of the trial and upon consideration of the evidence on record and after hearing the prosecution as well as the defence proceeded to convict and sentence the accused/appellant as aforesaid. Hence this appeal.

5. Learned counsel appearing for the appellant submitted that this is a case where there has been total non-compliance with the provisions of Section 42 of the Act compliance and on that ground alone the appellant is liable to be acquitted. Besides, there are other glaring infirmities in the prosecution case which would be pointed out in course of the hearing.

6. Per contra, learned Addl. P.P. has submitted that there has been substantial compliance with Section 42 and moreover the independent witnesses have also supported the prosecution ca