GOURI DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The applicant/ petitioner has filed this application seeking for suspension of sentence awarded by the learned Special Judge under NDPS Act, 4th Court, Alipore, South 24 Parganas in Session Trial No. 8(1) 2022; NDPS Case No. 101 of 2019; Sessions Case 10(12)2020 vide which the applicant was sentenced to undergo Rigorous Imprisonment (RI) for 15 years and also to pay a fine of Rs.1,50,000.00 in default further Rigorous Imprisonment (RI) for 1 year for the offence punishable under Sec. 29/20(b)(II)(C) of the Narcotics Drugs and Psychotropic Substances Act.

(2.) It is stated by the petitioner that the husband of this petitioner namely Joydeb Das was intercepted near New Dutta Nursery, Sealdah Court and subsequently arrested and 01 Kg 100 gms Charas was recovered from his possession. Sample of the seized contrabands were taken from the spot and marked and leveled as "S1" & "S2" in the absence of the magistrate violating the provisions as enumerated in Sec. 52(A) of the NDPS Act. During investigation the convict Joydeb Das stated that he had some other associates who worked for him in his alleged drug trade and stated that he stored huge quantity of drugs in his residence at Tangra and this petitioner convict Gouri Das worked for his drug business. Immediately after that the de-facto complainant and other leading team members along with the Gazetted Officer went to the house of Joydeb and after thorough search recovered two cubodial shape block of flowering and fruiting tops of cannabis plant commonly called Ganja total weighing about 21 Kgs 800 gms and one digital weighing machine. Sample weighing about 50 gms was taken out from the mother items in absence of Magistrate and prepared seizure list in presence of the witnesses.

(3.) It is stated by the learned Counsel appearing on behalf of the petitioner that samples of the contraband were drawn out at the place of seizure and not before the Magistrate which is a clear violation of Sec. 52(A) of the NDPS Act. No compliance of Sec. 52(A) of the NDPS Act was made and no representative sample was drawn in presence of Magistrate and sent for chemical examination. It is specifically submitted by the learned Counsel that the sample which was sent for test was not taken in presence of Magistrate but also from the spot which is contrary to the provision of law laid down in the NDPS Act as well as the judgment of the Hon'ble Apex Court. It is further submitted by the learned Counsel that on 4/12/2019 samples were received at SDCRL for examination and sample of burnt contraband was sent to FSL on 6/1/2020 where as an application under Sec. 52(A) of NDPS Act was moved by the learned Advocate for the State before the Trial Court and the said application was rejected by the learned Judge on the same date. So, it is apparent from the dates that before allowing the application by the Court the samples which were drawn at the spot in the absence of Magistrate were sent for chemical analysis which is according to the learned Counsel for the petitioner is impermissible having regard to the mandate of Sec. 52(A) of the NDPS Act.