Strict adherence to procedural safeguards in narcotics cases is essential; failure to comply can lead to acquittal.

JUDGMENT

S. Datta Purkayastha, J. - The appeal arises from the judgment dated 10.11.2022 passed by Ld. Special Judge (NDPS), Dhalai Judicial District, Ambassa, in Special (NDPS) case no. 28 of 2019 and the related sentence thereof whereby the appellant was convicted under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and was sentenced to suffer Rigorous Imprisonment (RI) for 7 (seven) years and to pay a fine of Rs.1,00,000/-(Rupees one lakh) only and in default to pay the fine to undergo further Rigorous Imprisonment (RI) for 6 months.

2. On 11.10.2019 at about 1415 hours Sub-Inspector Tapan Das of Chailengta Police Station lodged the ejahar, inter alia, to the effect that on that day at about 0930 hours, Inspector Sura Kumar Debbarma, Officer-in-Charge of Chailengta Police Station, received one secret information that the appellant had stored huge quantity of brown sugar (heroin) in his house. Matter was then entered in Chailengta PS GD Book vide Entry No.007 dated 11.10.2019 and same was also verbally informed to the Sub-Divisional Police Officer (for short- SDPO), Longtharai Valley over telephone seeking permission for conducting search in the house of the appellant. Presence of one Executive Magistrate was also asked for and said information was also conveyed to the Superintendent of Police, Dhalai District over phone. Thereafter, a team of police officials consisting of the informant, said OC of Chailengta PS; SDPO, Longtharai Valley; one Deputy Collector & Magistrate (DCM) of Longtharai Valley namely Sri Sushil Kumar Reang, and other Police Personnel raided the house of the appellant and during search found a plastic pouch containing dry powder of yellow colour suspected to be brown sugar concealed in the heap of fire-woods. Taking some small amount therefrom, they conducted a preliminary test through narcotic drugs detection kit and found the same to be heroin. On measurement, the quantum of the recovered heroin was found to be 10(ten) gm. Thereafter, said item along with one mobile handset were seized in presence of the witnesses and the appellant was also arrested on the spot. Specific case was, thereafter, registered as Chailengta PS Case No. 2019 CLT 016, dated 11/10/2019 based on said FIR under Section 21(b)/25 of the NDPS Act, 1985 against the appellant and SI Partha Pratim Reang was entrusted with the investigation of the same who after investigation finally submitted the charge sheet under Section 21(b)/25 of NDPS Act, 1985 against the appellant.

3. Ld. Special Judge, thereafter, framed the charge against the appellant under Section 21(b) of NDPS Act, 1985 to which the appellant denied the allegations. Prosecution during trial, examined total 10 (ten) witnesses, out of whom PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8 and PW-9 were the witnesses who claimed to be present at the spot during such recovery. While convicting the appellant, the trial Court after appreciation of the evidence came to the conclusion that from the very inception of the case, the investigating agency had complied with all the mandatory provisions of the Act and there was no scope to disbelieve the testimonies of the witnesses.

4. Mr. Debajit Biswas, learned counsel of the appellant contended that the mandatory provision of Section 42 of the NDPS Act, 1985 was not complied with in this case and before going to search the house of appellant, no written permission from the higher Authority was taken and even after coming from the raid also, within 72 hours no written communication was made by the OC of Chailengta PS or other officers of that Police Station to their higher Authority informing about such recovery and, for non-compliance of the mandatory provision of Section 42 of the Act, the appellant was entitled to be acquitted.

5. The second point, learned counsel argued, was that no document or any other proof was collected by the informant or by the investigating officer to establish that the appel