Strict adherence to search and seizure procedures under the NDPS Act is essential; failure to follow mandated protocols invalidates convictions.

JUDGMENT :

Ananda Sen, J.

1. These criminal appeals are directed Against the Judgment of conviction dated 14.06.2002 and order of sentence dated 15.06.2002 passed by Additional Sessions Judge-II, Bokaro in GR No.262 of 1994 in respect of Appellant in Cr.A.(SJ) 431 of 2002 and judgment of conviction dated 12.08.2009 and order of sentence dated 13.08.2009 passed by the learned Addl. Sessions Judge-I, Bokaro in G.R. No.262 of 1994 (Suppl) in respect of appellant in Cr. A.(SJ) No.1112 of 2010 whereby and whereunder, both the appellants having been found guilty of charge under Section 21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short NDPS) have been sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the appellants have to undergo further rigorous imprisonment of two years.

2. Learned counsel for the appellant submitted that the judgments and orders of sentence passed by the learned Trial Court are bad in law and are based upon surmises and conjectures. There was no independent witness at the time of search, nor the search was conducted in the presence of any Gazetted officer or the Executive Magistrate and the same was done in violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. Neither the Investigating Officer nor any official of the raiding party were authorised to search and seize, therefore, the same is in violation of Sections 41 , 42, 43, 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act. He argued that the seized materials were not weighed before sending them to Malkhana. As per him, appellant Nidhan Singh has been convicted merely on the basis of facts and circumstances of an earlier case. He lastly submitted that the entire process of investigation, search and seizure was in violation of the provisions of the Narcotic Drugs and Psychotropic Substances Act which caused prejudice to the appellants. Thus, he prays for the acquittal of the appellants.

3. Counsel for the State defended the judgment of the learned Trial Court and submitted that there is no procedural irregularity committed by the persons who conducted the search and seizure of this case. In NDPS cases there is presumption against the accused of committing the offence and it is the accused who has to prove the contrary. In this case the prosecution was fully able to prove its case beyond shadow of reasonable doubt, thus, these appeals need to be dismissed.

4. The prosecution case is at the instance of the Informant R.C. Ram who was the inspector incharge of the B.S City Police Station. He in his written statement has stated that on 28.02.1994 at about 2.00 P.M he got information that an illegal business of Brown Sugar is operating in the Khatal of Krishna Rai which is situated at Dudibagh. He formed a raiding party consisting of S.N Chaudhary, Officer-in-Charge, Sector-IV Police Station, Shailendra Kumar Singh who was Incharge of Sector-VI Police Station and Sub Inspector Phooldeo Singh amongst others and raided the said place at about 2.30 P.M. When the police party raided the place, appellant Nidhan Singh tried to flee from the spot and on being chased he was caught by the team and when he was searched sixteen packets of brown sugar was recovered from his right pocket. On further search of Khatal six more packets were found but Krishna Rai was not present there. He further stated that the seizure list was prepared in the presence of two independent witnesses na