Non-compliance with mandatory provisions of Section 52(A) of the NDPS Act vitiates the trial, affecting the validity of evidence.

IA ORDER

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1.Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2.By way of this application under Section 389 of the Code of Criminal Procedure, 1973 , applicant–Bipin Bihari Vanmadi Bahera, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offences punishable under Sections 8(C), 20(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act” for short).

3.The present appeal and the application for suspension of sentence arise from the judgment dated 28.02.2023 and order of sentence passed in Special NDPS Case No.11 of 2017, whereby the applicant herein was convicted and sentenced as under:

4. Briefly, the prosecution case is that, on 20.06.2017, PW.11, Police Inspector P.G. Narwade, Kadodara Police Station, Surat received a credible secret information that, in the early morning at about 3 o’clock near Kadodara CNG Pump, 4 persons having bag in their hands filled with the “Ganja” narcotic substance are passing through Krishnanagar. The said information was noted down by him and also transmitted to the Higher Authority. He formed a team and in the presence of two independent panchas, they went to the place where the accused had to come. When they were in watch, they saw 4 persons having bags in their hands going towards Krishnanagar. PW.11 in the presence of panchas and staff, restrained them and asked their names as well as enquire about the material filled in the bags, which they had kept with them. In the reply, the accused had disclosed their names viz. Bipin Bahera, Mohammand Shahmer, Mogul Pradhan and Sachin Goda, residents of Orissa and Bihar respectively. Before the search could be undertaken, the accused had been given an opportunity to be searched by another Gazetted OfÏcer, as provided under Section 50 of the NDPS Act. The accused were knowing Hindi language. Upon the search of the bags, the prohibited substance allegedly found and for further confirmation, the Mobile FSL was being called at the place. On examination of contents of bags, it was opined by the ofÏcer of the FSL that, the material lying in the bags was “Ganja”. The person Ashwin Chaudhary, who had been called for weighing the material, done his job and according to his opinion, the handbag found from the accused Bipin Bahera was having 12.390 kilogram ganja, whereas, from the handbag of Mohammad Shahmer was having 10.250 kilogram of ganja and accused Mogul Pradhan and Sunil Goda were found in their possession 8650 and 5950 kilogram of ganja respectively. In total, the accused were found with the conscious possession of 37.240 kilogram ganja for which they had no license or permit to possess the same. In the presence of panchas, the samples were drawn from the seized material and after following proper procedure, the accused were arrested. During interrogation, it was revealed that, the accused no.3 was the purchaser of the said ganja and for the delivery of the same, accused Bipin Bahera and juvenile accused transported it from Orissa to Surat and while in the process of delivery, they caught red handed by the police. The police after completion of investigation, filed a chargesheet for the offences, as recorded above. The accused were tried for the charges by the learned Special Court, Surat. In order to prove the charge, the prosecution had examined 16 witnesses and produced and exhibited 21 documents. Learned Special Judge, after appreciation of evidence, held guilty the a