Mandatory procedural requirements of the NDPS Act must be strictly followed; failure to do so undermines the prosecution's case, leading to acquittal.

JUDGMENT :

SIBO SANKAR MISHRA, J.

The present Criminal Appeal is directed against the judgment and order dated 8th June, 1995 passed by the learned 1st Additional Sessions Judge, Cuttack in G.R. Case No. 63 of 1994, whereby the present appellants were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.1,00,000/- each, in default, to suffer further rigorous imprisonment for one year each.

2. The present appeal has been pending since 1995. When the matter was called for hearing, none appeared for the appellants. Therefore, on 25.09.2023, Ms. Mina Kumari Das has been appointed as Amicus Curiae to assist the Court. She has readily accepted the same and after obtaining entire record, assisted the Court very effectively. This Court records appreciation for the meaningful assistance rendered by Ms. Das.

3. Heard Ms. Mina Kumari Das, learned Amicus Curiae for the appellants and Mr. Sarathi Jyoti Mohanty, learned ASC for the State.

4. The prosecution case in brief is that on the night of 21/22.02.1994 at about 2 A.M., P.W.8 Sarat Chandra Jenamani, the then Circle Inspector of Police, Athagarh, along with other police officials including A.S.I. D.D. Nayak (P.W.6) of Baramba P.S., A.S.I. Bishnu Charan Rout of Tigiria P.S., and O.I.C. R.K. Panigrahi of Baramba P.S., were performing anti-dacoity patrolling on Cuttack–Narsinghpur Road near Nuapatna Durga Bazar.

5. During the patrol, a Trekker coming from Narsinghpur side and a mini truck bearing registration number OSF 6485 coming from Athagarh side were detained for checking. On search of the said mini truck, six gunny bags were found containing poppy straw. The appellants were stated to be sitting inside the cabin along with the driver. The bags were seized, samples were drawn, and seizure list was prepared. The truck and the seized materials were taken to Tigiria Police Station, and subsequently, an FIR was lodged by the Circle Inspector.

6. After completion of the investigation, Charge Sheet was submitted against the present appellants under Section 15 of the NDPS Act.

7. The defence of the appellants was one of complete denial. It was contended that on the night of that day, they were detained by the police near Nuapatna Durga Bazar and were asked to load certain bags, which they refused. Being annoyed, the police falsely implicated them in this case. The appellants also contended that the entire procedure prescribed under the NDPS Act was not followed, rendering the alleged seizure and recovery illegal.

8. The prosecution examined eight witnesses in total. P.Ws.1, 3 and 4 were independent witnesses who did not support the prosecution and were declared hostile. P.W.2, the owner of the mini truck, only admitted that his vehicle was seized by the police in that night and that two of the appellants were his driver and helper. The remaining witnesses (P.Ws.5 to 8) were all police officials connected with the detection, seizure, and investigation.

9. No independent witness corroborated the alleged recovery of poppy straw. The prosecution did not adduce any documentary or oral evidence to show that the seized articles were produced before the Magistrate immediately after seizure, nor was there evidence to establish safe custody of the samples during the intervening period.

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