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IN THE HIGH COURT OF TRIPURA
S. Talapatra, J.
Prantosh Paul - Appellant
Versus
State of Tripura - Respondent
Crl. A. No. 06 of 2011 & [Alongwith Crl. A. No. 07 of 2011]
Decided On : 03-05-2014
Narcotic Drugs and Psychotropic Substances Act - Illegal Seizure - Section 20(b)(ii)(B) - Section 42, Section 52A - Summary of Acts and Sections: The court discussed the flouting of mandatory provisions of Section 42 and Section 52A of the NDPS Act by the designated investigating officer. It highlighted the requirements and obligations under these sections, emphasizing the need for strict compliance to ensure fair investigation and trial. The court also referenced relevant case law to establish the absolute duty and strict compliance required under these provisions.
Fact of the Case:
The appellants were convicted for possessing 10 Kg. of cannabis (ganja) under Section 20(b)(ii)(B) of the NDPS Act. The prosecution presented evidence including seizure list and SFSL report. The appellants denied the allegations and faced trial. The appellants appealed the judgment, arguing non-compliance with mandatory provisions of Section 42 and Section 52A of the NDPS Act.
Finding of the Court:
The court found that there was no compliance with the provisions of Section 42 and 52A(2) of the NDPS Act, rendering the entire seizure illegal. It emphasized the need for proper sealing, packing, and identification of seized materials as required by the NDPS Act. Citing relevant case law, the court concluded that the conviction based on such illegal seizure and sampling was not warranted, leading to the acquittal of the appellants.
Issues: Non-compliance with mandatory provisions of Section 42 and Section 52A of the NDPS Act, legality of the seizure, and the sufficiency of evidence.
Ratio Decidendi: The court established the absolute duty and strict compliance required under Sections 42 and 52A of the NDPS Act, emphasizing the need for fair investigation and trial. It held that total non-compliance with these provisions rendered the seizure illegal and the conviction unwarranted.
Final Decision: The impugned judgment of conviction and the order of sentence were set aside, and the appellants were acquitted from the charge on benefit of doubt. Both appeals were allowed and disposed of.
JUDGMENT
S. Talapatra, J.:-Heard Mr. B. Deb, learned counsel appearing for the appellants as well as Mr. A. Ghosh, learned P.P. for the State.
2. Both the appeals are tied up together as those appeals have emerged from the same judgment of conviction and order of sentence dated 14.02.2011 passed by the Special Judge, Tripura, Agartala in case No. Special 43 of 2009. The appellants have been convicted for committing the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act, in short) as 10 Kg. of cannabis (ganja) were found in their possession when they were intercepted by the officers of the Enforcement Branch. It had been alleged that on 13.08.2009 when the appellants were carrying the alleged contraband narcotic substances in a maruti car bearing registration No. TR-01-B-0267, they were intercepted at Nagerjala and the said quantity of narcotic substances were found in two plastic packets in their possession. They were arrested and the ganja as recovered from them was seized by preparing a seizure list (Exbt. 1). After the investigation was complete, the charge sheet was filed against the petitioner under Section 20(b)(ii)(B) of the NDPS Act along with the forensic report by the State Forensic Science Laboratory (the SFSL, in short) which opined that the materials those were referred for examination were ganja, having the psychotropic ingredient. The charge was framed under Section 20(b)(ii)(B) of the NDPS Act to which the appellants pleaded total innocence and had claimed to face the trial.
3. To substantiate the charge, the prosecution has examined as many as 10 witnesses and introduced 4(four) documents (Exbt. 1 to Exbt. 4) in the evidence including the seizure list and the SFSL report. The appellants had been examined under Section 313 of the Cr. P.C. where he denied all the incriminating materials as referred. Thereafter, the impugned judgment and order was passed on purported appreciation of the evidence. Hence, these appeals are filed by the appellants.
4. Mr. B. Deb, learned counsel appearing for the appellant at the very outset has submitted that though in the First Information Report submitted by the informant namely, Nayan Jyoti Chakma (PW-1) it has been stated that on the tip of the secret information, the said operation was conducted but the said information borne in the GD entry No. 271 dated 13.08.2009 was neither produced in the trial nor the officer, who received the information namely, Atul Debbarma, Deputy Superintendent of Police (Enforcement Branch) was examined in the trial to establish that there had reasons to believe for conducting such search and seizure for breach of Section 8(C) of the NDPS Act. Mr. Deb, learned counsel has urged this Court to appreciate how the mandatory provisions of Section 42 and Section 52A along with Sections 53, 55 & 57 of the NDPS Act have been flouted by the designated investigating officer. He has taken this Court to the oral testimony of PW-10, who investigated the case. PW-10, Sanjit Sen has stated unequivocally that:
On 11.09.2009 I have produced the seized alamats before Special Court for drawing sample on the alamats for sending it to the SFSL for chemical examination. Sample was drawn in presence of the court and that was sent to SFSL. After drawing sample the alamats were kept in the custody of the Enforcement Branch as per order of the Court.
In the cross-examination he has stated as under:
The secret information was received by Dy. S.P. Atul Debbarma. That information was not recorded in writing. No copy of that information was sent to any superior authority. I got the seized alamats on 14.08.2009 for the first time. Complainant seized the ganja and thereafter in course of investigation I re-seized the same. The seized ganga were not packed and sealed in presence of witnesses. I re-seized the ganja in the condition I got it. I did not prepare and inventory about the seized alamats while placing the same
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