ISHDAN SEIKH Vs. UNION OF INDIA

JUDGEMENT

(1.) Appellants have assailed judgment and order dtd. 3/12/2019 and 4/12/2019 passed by the learned Judge, Special Court under NDPS Act-cum-learned Additional Sessions Judge, 12th Court, Alipore, 24- Parganas (South) in NDPS Case No.36 of 2015 convicting the appellants for commission of offence punishable under Sec. 22(c) read with Sec. 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000.00, in default, to undergo rigorous imprisonment for six months more.

(2.) Crux of the prosecution case is to the effect on 7/10/2013 Sri Debasish Chowdhury, Superintendent, Narcotic Control Bureau (PW3) received information two persons from Village: Baro Nalda, Dist.: Nadia will be coming to Sealdah station to deliver a consignment of preparation of 'Alprazolam' to others. The information was reduced into writing and submitted before the Zonal Director viz. Sri Subrata Biswas. Upon necessary movement order being obtained, a team comprising of Sri Debasish Chowdhury (PW3), Surajit Sen (PW2), Debasish Bhattacharjee (PW4) and others proceeded towards Sealdah Station. They reached the spot at 1:00 P.M. and kept surveillance. At about 01:30 P.M. the source pointed out two suspects. The NCB team members encircled them. One of the suspects was carrying a khaki colour backpack and the other was accompanying him. The NCB officers disclosed their identity and expressed their intention to search both of them. Offer was given to the suspects who divulged their identity as the appellants that they had a right to be searched before a Magistrate or a Gazetted Officer or before a Gazetted Officer, who is a member of the raiding party. The appellants agreed to be searched before a Gazetted Officer, who is a member of the raiding party. Upon search of the khaki colour backpack of appellant viz. Ali Hossain Sk. @ Ali Hussain Seikh, a transparent polythene packet containing some cream coloured powder was recovered. A railway ticket from Palassey to Sealdah, cash of Rs.380.00 and one black Karbon mobile were also recovered from his possession. From the possession of the appellant viz. Ishdan Seikh, similar train ticket, cash of Rs.420.00 and a black Karbon mobile were also recovered. The cream coloured powder was suspected to be a preparation of 'Alprazolam' and was weighed. Total weight was found to be 232 gms. Two samples of five grams each were taken from the suspected material. They were kept in separate envelopes marked 'S1' and 'S2' respectively. Remaining material was kept in an envelope marked as 'M'. Envelopes were duly signed by the members of the raiding party, appellants and independent witnesses. Other articles recovered from the appellants including cash was also seized. After search, notices were issued under Sec. 67 of the NDPS Act to the appellants and their statements were recorded. Thereafter, the appellants were arrested and produced in court. In course of investigation, samples were sent for chemical examination and report of the chemical examiner was obtained. The said report disclosed presence of 'Diazepam' and 'Alprazolam' in the samples. Petition of complaint was filed against the appellants. Charge was framed under Sec. 22(c) read with Sec. 29 of the NDPS Act. Appellants pleaded not guilty and claimed to be tried. In course of trial, prosecution examined five witnesses and exhibited a number of documents including chemical examiner's report as Exhibit-18. Defence of the appellants was one of innocence and false implication. In conclusion of trial, learned trial Judge by the impugned judgment and order dtd. 3/12/2019 and 4/12/2019 convicted and sentenced the appellants, as aforesaid. Mr. Soumyajit Das Mahapatra, learned advocate appearing for the appellant viz. Ali Hossain Sk. @ Ali Hussain Seikh in CRA 744 of 2019 submits search was conducted in violation of Sec. 50 of the NDPS Act. Appellant viz. Ali Hossain Sk. @ Ali Hussain Seikh was not informed of his right to be brought before a Magistrate or a Gazetted Officer. On the other hand, he was told he also had a right to be searched before a Gazetted Officer who is a member of the raiding party. In State of Rajasthan vs. Parmanand & Anr.,(2014) 5 SCC 345. the Apex Court held such offer is not in consonance to Sec. 50 of the NDPS Act. Hence, search conducted in violation of the mandatory requirements under Sec. 50 of the NDPS Act and the conviction of the appellant viz. Ali Hossain Sk. @ Ali Hussain Seikh is liable to be set aside on such score alone.

(3.) Mr. Angshuman Chakraborty, learned advocate appearing for the appellant viz. Ishdan Seikh in CRA 90 of 2020 while adopting the submissions of Mr. Mahapatra further submits no recovery had been effected from his client. Statements of the appellants recorded under Sec. 67 of the NDPS Act are inadmissible in view of the law declared in Tofan Singh vs. State of Tamil Nadu,(2021) 4 SCC 1. Mere presence of Ishdan Seikh along with Ali Hossain Sk. @ Ali Hussain Seikh cannot give rise to an inference that the said appellant abetted the possession of narcotic substance.