Non-compliance with Section 50 of the N.D.P.S. Act invalidates the prosecution's case, requiring transparent searches to protect the rights of the accused.

JUDGMENT :

D.Dash, J.

The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 6th December, 2021 passed by the learned Special Judge, CBI, Court No.1-cum-Additional Sessions Judge, Bhubaneswar in T.R. Case No.16 of 2019 arising out of PR Case No.212 of 2018 of E.I. & E.B. Unit-1, Cuttack.

By the impugned judgment of conviction and order of sentence, the Appellant (accused) has been convicted for commission of the offence under section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for eleven (11) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) for commission of the said offence in default to undergo rigorous imprisonment for one year with a direction to get the benefit of usual set off.

2. The prosecution case, in short, is that on 16.11.2018 when Sub-Inspector (S.I.) of Excise, E.I. & E.B., Unit-1, Cuttack (P.W.3) with other Excise Officials was conducting patrolling duty in Bhubaneswar in between Jayadev Vihar and Nandankanan Road, it was around 7 a.m., he received credible information that on the road at Mayfair Hotel Square, in front of Loyola School of Salia Sahi, one boy aged about 22 years wearing a check half pant and cement colour T-Shirt was selling Heroine. Receiving such information, P.W.3 recorded the same and informed to his immediate superior, i.e., Inspector-in-Charge (IIC-Sarat Chandra Bhanja) over mobile phone. He also sent a copy of the said recorded information through an Excise Constable in compliance of sub-section (2) of Section 42 of the NDPS Act. Arriving at the site, as stated above, P.W.3 could notice that person wearing the same dress as earlier informed. He (P.W.3) then detained that person at the spot in presence of other members of the raiding party. That person being asked stated his name to be Somanath Das (accused). P.W.3 then told the accused about the grounds of belief that he was suspected to be in possession of Heroin. He then asked him that if he so desired, he had the right of being searched in presence of Executive Magistrate or Gazetted Officer. The said right of the accused being intimated by P.W.3 in writing, the accused responded in stating that the search be made by P.W.3 in presence of witnesses of which he had no objection. Thereafter P.W.3 searched the accused and recovered a transparent polythene pouch containing light gray colour powder and some sale money from the front side pocket of the half pant worn by the accused. The pouch then was opened and a small quantity of powder kept inside being taken, a preliminary test was conducted by P.W.3 with the help of the Narcotic Drugs Kits which he was carrying. Upon such test and out of his departmental experience, he confirmed the same to be Heroine (Diacetylmorphine). The contents of the pouch were then weighed which came to 85 grams. The said pouch thereafter was kept in a yellow colour envelop which was seized by using paper slip containing signatures of accused, witnesses and P.W.3. The envelop was also sealed by Wax using personal brass seal of P.W.3 in presence of the witnesses and thereafter the seal was given in Zima of Debasis Patra (P.W.1) who executed the Zimanama that he would produce the same as and when so required. P.W.3 then prepared the seizure list in respect of the pouch containing 85 grams of Heroin (Diacetylmorphine) and cash of Rs.1900/- The contents of the seizure list was read over and explained to the accused and he as also the witnesses put their signatures