9911796707
TMI Blog2016 (9) TMI 1476X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure (hereinafter referred to as Cr.P.C.) Prosecution case, in brief, is as follows:- On February 12, 1987 at about 11.35 hours, P.W.7 by producing the appellant at Burtolla P.S. along with 3 gms. of 'Heroin', made one G.D. Entry being No. 840 dated February 12, 1987 at the said P.S. stating that pursuant to source information he arrested appellant at about 11.25 hours from the crossing of Beadon Street and Bidhan Sarani having in possession of 3 gms. of 'Heroin' in 3 cellophane paper packets kept concealed in his shirt and accordingly he seized the same by a seizure list in presence of P.W.1 and P.W.2 for prosecuting the appellant for commission of the offence under Section 27 of the N.D.P.S. Act. On the basis of the above G.D. Entry, P.W.7 himself started Burtolla P.S. Case No. 50 dated February 12, 1987 under Section 27 of the N.D.P.S. Act against the appellant and also took up investigation of this case and thereafter on completion of the investigation/enquiry he submitted enquiry report on January 16, 1989 under Section 21 of the N.D.P.S. Act against the appellant. Charge was framed on August 8, 1991 against the appellant under Section 21 of the N.D.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry report, charge framed amongst other materials for examining propriety of the impugned judgment, order of conviction and sentence. The learned Court below took into consideration mainly the evidences of P.W. 1, P.W.2 and P.W. 7 to prove the search, recovery and seizure of 'Heroin' from the possession of the appellant and also took into consideration the chemical analysis report where the expert had opined that the sample sent for analysis to contain 'Heroin' to arrive at the conclusion that prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt. Regarding non-compliance of the mandatory provisions of law relating to search and seizure of the contraband articles as also the provisions of Section 42 and Section 50 of the Narcotic Drugs and Psychotropic Substance Act, we have carefully scrutinized the evidence brought on record and perused the judgment of the learned Trial Court. It was evident from the evidence of P.W.7, Chittaranjan Mukherjee, the then S.I. of police Burtolla P.S., that he had corroborated the prosecution case. He had specifically stated that search and recovery of 'Heroin' was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, 1987 for analysis and report and acknowledgement of the receipt of the article was given. P.W.6 is the A.S.I. of Police of Burtolla P.S. who produced the Malkhana register to prove the Entry No. 1277 dated February 12, 1987 made therein (Ext. 5) by P.W.7. Thus from the above, it was apparent that search was made at a public place in presence of independent witnesses and contraband article was recovered and seized from the possession of the accused/appellant. So the provisions of Section 43 of the Narcotic Drugs and Psychotropic Substance Act will apply and not Section 42 of the said Act and as such there was no requirement of the officer conducting search to record the grounds of his believe as contemplated by the proviso to Section 42 of the N.D.P.S. Act. Reference may be made to the decision of State of Haryana Vs. Jarnial Singh and others reported in (2004) 5 SCC 188. The above principle of law has already been discussed by us in the matter of Biswajit Das and Anr. Vs. State of West Bengal reported in (2015) 3 Cal LT 359 (HC). Regarding applicability of the provisions of Section 50 of the NDPS Act regarding search of an accused in person in presence of a Magistrate or a ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate; failure to inform the suspect about the existence of his above right would cause prejudice to him. In the instant case, there was no evidence on record that appellant was at all apprised and/or given any option about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. So it can be safely held that no notice was given to the appellant/accused before search of his person nor he was searched in presence of a Gazetted Officer or a Magistrate. This clearly shows non-compliance of the provisions Section 50 of the N.D.P.S. Act. Thus we find that procedure relating to search and seizure of the contraband articles had not been properly adhered to which render the recovery of the illicit article suspect and vitiate the conviction and sentence. The learned Court below did not take into consideration the breach of the above mandatory provision of the statute to pass the impugned judgment. With regard to the anomaly in the weight of the seized articles in between the Malkhana register, se ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
