The appellate court upheld the acquittal of the respondent-accused due to the prosecution's failure to prove charges and denied the request for additional evidence as it aimed to fill gaps in the prosecution's case.

JUDGMENT :

BISWAJIT PALIT, J.

This appeal is preferred challenging the judgment and order dated 04.07.2024 delivered by Learned Special Judge (NDPS), North Tripura, Dharmanagar in connection with case No. Special(NDPS) No.42 of 2019. By the said judgment, the respondent was acquitted from the charge levelled against him under Section 21(b) of NDPS Act.

2. Heard Learned P.P., Mr. Raju Datta appearing on behalf of the appellant and also heard Learned Counsel, Mr. Bhaskar Deb along with Learned Counsel, Mr. Victor Ghosh appearing on behalf of the respondent.

3. At the time of hearing of argument, Learned P.P. drawn the attention of the Court that the Learned Trial Court failed to appreciate the provisions of Section 42, 50 and 57 of the NDPS Act and delivered the judgment acquitting the respondent-accused from the charge of this case. He further submitted that Section 50 of NDPS Act was not applicable in this case but the Learned Court below came to the observation that no notice was served before carrying out the search. In respect of Section 57 of NDPS Act, it was the observation of Learned Court below that the Officer conducting search is duty bound to communicate the arrest and seizure to the superior official but in this case, no such communication is produced or proved by the prosecution before the Learned Trial Court. According to Learned P.P. those documents were available with the record but through bona fide mistake, the same documents could not be produced for which the prosecution has submitted another prayer under Section 391 of Cr.P.C. corresponding to Section 432 of BNSS for allowing the prosecution to adduce additional evidence for the sake of justice. It was further submitted that there is every possibility to succeed in the appeal and if the prayer submitted by the prosecution is not allowed then the prosecution would suffer irreparable loss. He also relied upon few citations which would be discussed later on.

4. On the other hand, Learned Counsel for the respondent- accused first of all drawn the attention of the Court that Learned Special Judge (NDPS) after considering the evidence on record rightly and reasonably delivered the judgment acquitting the respondent- accused from the charge of this case. He further submitted that before the Learned Trial Court, prosecution did not adduce the IO nor took any step to prove the documents which at this stage prosecution refers by submitting a petition for permitting the prosecution to adduce additional evidence. He further submitted that even no such prayer was submitted by the prosecution before the Court of Learned Special Judge (NDPS) as to why the IO was not produced and as to why those documents were not produced and proved. So, he further referred the evidence of PW-5, Rupendra Debbarma who in course of his cross-examination stated that the seizure list and sample drawn memo were written by SI Ratan Rabi Das. The pre-search memo was also written by SI Ratan Rabi Das. He only put his signature on the documents. The said witness further stated that he communicated the information regarding seizure and arrest of the accused to the higher authority but the said fact is not mentioned in the Case Diary and in the suo motu FIR and seizure list, he did not mention the specific place in the house of accused from where the contraband was recovered. The IO SI Ratan Rabi Das accompanied with him to the PO. Referring the cross-examination part of the said witness, Learned Counsel for the respondent submitted that said PW-5 was not produced before the Learned Trial Court. Even no step was taken by the prosecution to ensure attendance of the said witness. So, at this belated stage, there is no scope to allow the prayer of prosecution. Furthermore, he submitted that prosecution at this stage is trying to fill up the gap of the prosecution case which is not permissible in the eye of law and he also relied upon one citation of the Hon’ble Supreme Court of India reported in (2024) 4 SC