Non-compliance with the procedural requirements under Section 50 of NDPS Act is not applicable when contraband is recovered from a bag rather than a personal search.

1. This criminal appeal is preferred under Section 374 of the Code of Criminal Procedure , 1973 by the appellant being aggrieved and dissatisfied with the judgment and order dated 16.11.2009 and 17.11.2009 passed by the learned Judge, Special Court, under NDPS Act, Howrah, whereby this appellant has been convicted for offence punishable under Section 20 (b)(ii)B of the NDPS Act, (hereinafter referred to as the ‘Act’) and sentenced to undergo one year rigorous imprisonment with fine of Rs. 10000/- along with default stipulation.

2. The case of the prosecution in nutshell is that:

“Police received a telephonic information that a person was carrying ganja in a polythene packet and standing near 64, N.S. Road, P.S. Howrah to deliver the same to other person and after diarising the information being Howrah P.S. G.D.E. No. 1284 dated 14.06.2005 and after having informed the O.C., Howrah Police Station and as per the direction of the O.C., the de-facto complainant along with other police personnel left the police station to work out the information by Vehicle No. WB-12A-6310 along with the investigation box and Government supplied weighing machine and weight. At about 22.20 hrs. they reached near to Dhar’s Travels and left the vehicle on N.S. Road and identified the accused who was standing at the North side of 64, N.S. Road holding a polythene packet in his right hand. On being asked the accused disclosed his identity as Ram Abtar Shaw of 365/2, Belilious Road, Howrah. On asking the accused confessed that he was carrying ‘ganja’ to deliver the same to other. The accused was informed that he had lawful right to be searched in presence of a Magistrate or a Gazetted Officer to which he agreed to be searched in presence of a Gazetted Officer. De-facto complainant informed the fact over R.T to Howrah P.S. and accordingly Sri Sujit Ganguly, Additional O.C. Howrah P.S. reached at the spot. The Additional O.C. informed the accused person that he has lawful right to be searched in presence of a Gazetted Officer or a Magistrate and the accused person agreed to be searched in his presence. Thereafter, de-facto complainant made search of the polythene packet which contained ganja as held in the right-hand grip by the accused and after weighing the contents it was found of 1 kg. 500 gms. No valid document was produced on behalf of the accused for carrying ‘ganja’ and the same was seized. After preparing seizure list it was levelled and sealed in presence of the witnesses and the accused person. Sample was taken out of the total ‘ganja’ on the spot. Police arrested the accused and the case was started by the concerned police station.”

3. After completion of investigation, charge-sheet was submitted by the prosecuting agency under Section 20 (ii)(B) of the NDPS Act against the accused person. Charge was framed by the Trial Court under (ii)(B) NDPS Act. 12 (twelve) witnesses were examined by the side of the prosecution. Documents as well as the seized articles were marked as exhibits on behalf of the prosecution in connection with this case. After closure of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. to which he inclined to adduce witnesses on his behalf. The accused himself was examined with the permission of the Trial Court as DW1 and his wife was examined as DW2 in this case.

4. Mr. Swapan Kumar Mallick, learned Advocate for the appellant submitted before the Court, interalia, that the order of conviction and sentence passed by the learned Trial Court suffers from infirmities and the learned Trial Judge proceeded on the basis of conjectures and surmises and, therefore, the order of conviction and sentence is bad in law and liable to be set aside. It is further contended by the learned Advocate that PW1 and PW2 who were cited as independent witnesses to the seizure stated in the same voice during cross-examination that on the relevant point and time although they were in their shop room but on asking by the police