Compliance with mandatory evidence collection procedures under Section 52A of the NDPS Act is essential, failing which conviction cannot be sustained.

1. Appeal is directed against judgment and order dated 06.08.2019 & 07.08.2019 passed by learned Additional Sessions Judge-Cum-Judge Special Court, NDPS Act, Berhampore, Murshidabad in NDPS Case No.05 of 2016 arising out of NCB Crime No.22/NCB/KOL/2015 and a complaint filed by Malay Kanti Mondal, Intelligence Officer, NCB, Kolkata Signed By : SK SOHEL UDDIN High Court of Calcutta 13 th of May 2024 10:37:22 AM Zonal Unit convicting the appellants for commission of offence punishable under Sections 21 (c)/ 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs.1, 00,000/- each, in default, to suffer simple imprisonment for six months for the offence punishable under Section 21 (c ) of the NDPS Act.

The appellants were further sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- each and in default to suffer simple imprisonment for six months for the offence punishable under Section 29 of the NDPS Act; both the sentences are to run concurrently.

Prosecution case:-

2. Genesis of the case as narrated in the FIR is as follows :- Prosecution case as alleged against the appellant is to the effect that on 23.12.2015, PW 3 (Subhas Chandra Singh) a Constable attached to 20th Battalion, BSF received secret information and a patrol party went to Nurpur B.O.P. near Gangin village. He was a member of the patrol party. They detained two persons i.e. the appellants and two plastic packets were recovered from them. Thereafter, they were brought to BOP Nurpur. Information was given to NCB Kolkata about the incident. PW1 (Sumit Kr. Singh), an Intelligence Officer attached to NCB Kolkata after receiving the information went to BSF outpost. He found the appellants were detained and two packets had been recovered. Upon weighing 475 gms. of light brown coloured powder was found from each packet i.e. 950 gms. in all. Suspecting the powder to be heroin the consignment was seized and two samples of 5 gms. each was recovered from each packet and marked AS, AS1, NS and NS1. The remainder of the consignment was kept in an envelop marked NCB-I. The samples were sent for chemical examination and tested positive to heroin. PW 2 (Malay Kanti Mandal) filed complaint against the appellants and cognizance was taken.

3. During trial prosecution examined seven witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication.

4. In conclusion of trial, trial Judge by the impugned judgment and order dated 06.08.2019 & 07.08.2019 convicted and sentenced the appellants, as aforesaid.

Arguments at the Bar:-

5. Mr. Kusal Kumar Mukherjee, learned Advocate for the appellants submits Section 52A of the NDPS Act was not complied. He elaborates samples were drawn at the spot instead of being drawn in presence of Magistrate as per sub-section (2) of Section 52A of the NDPS Act. As the sampling was contrary to law, the report of the chemical examiner is of no value. Accordingly, he prays for acquittal of the appellants.

6. Learned Advocate for the State contends samples were drawn in presence of independent witness. Malkhana registers were also produced. Chemical examiner (PW 4) found the seals of the samples intact. Chain of custody has been established. Chemical examiner’s report showed presence of opium alkaloids. Hence, prosecution case is proved beyond doubt. Accordingly, the appeal is liable to be dismissed. Evidence on record:-

7. PW 3, Constable Subhas Chandra Singh deposed on 23.12.2015 he was posted at