SANJIB GUPTA AND ANR. Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Criminal Ap­peal is so preferred under Sections 374 (2) and 382 of the Code of Criminal Proce­dure, 1973 against the judgment and order dated 26-3-1998 passed by the learned Ses­sions Judge, Tinsukia in NDPS Case No. 1(T) 95, convicting the accused/appel­lants, Shri Sanjib Gupta and Smt. Jasoda Devi under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentencing them to undergo rigorous imprisonment for a period often years each and also to pay a fine of Rs. 1 lakh each, in default, to undergo rigorous imprisonment for a period of five years each.

(2.) THE prosecution cas giving rise to Tinsukia P.S. Case No. 96/95, so registered under Section 20 of the NDPS Act, in short, is that on 24-2-1995 in the evening hours on a secret information. Tinsukia Police searched the shop-cum-residence of the accused Sanjib Kumar Gupta, ap­pellant No. 1 and his mother, Jasoda Devi, appellant No. 2 and found two packets of opium weighing 98 grams and 82 grams respectively, (in total ISO grams), which are said to have been kept by them illegally and the said sample so seized gave positive test of opium. After the search, they were apprehended and charge sheet was so sub­mitted against them under Section 18 of the NDPS Act and after examining six of the prosecution witnesses, no defence wit­ness being examined, the learned Court below came to the conclusion of prosecution establishing the guilt of the ac­cused/appellants upto the hilt and hence they got convicted and sentenced as detailed above.

(3.) MR . A.K. Bhattacharyya, learned Senior Counsel, assisted by Mr. K. Agar­wal, learned Counsel, submitted on behalf of the accused/appellants that out of the six witnesses so examined, by going through the evidence of PWs 1 and 2 it will transpire that they have denied of any packets being recovered in their presence and that after the said search said to have been made, because of being asked by the Police as to put signature on the seizure list, the same were so put by them. It is also pointed out by particularly referring to the evidence of PW 4, the PSO of the Addl. S.P., Tinsukia that at the time of search/seizure or arrest of the accused/ap­pellants being made, definitely the Add. S.P. Tinsukia was not present at the place of occurrence, which would be so apparent by going through the evidence of his PSO, PW.4. It is also pointed out that taking into consideration the evidence PWs 5 and 6 together, it will transpire that in the in­stant case the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with and thus the whole trial is vitiated and that in that background the accused/appellants deserve acquittal. First of all it is pointed out that PW 6 on no account can be said to be the officer em­powered as to make such search. Secondly, if PW 6 had some secret information with regard to the appellants/accused possess­ing opium and had reason to believe the same, it was necessary for him as to put the said source of information so received also in writing which in the instant case has not been done, the GD entry being vague and furthermore, it is not that P.W. 6 was only expected to inform his senior officer on telephone, rather as per the provisions of the Act, he was duty bound as to give such information in writing to his superior of­ficer, which also had not been done in the instant case contravening the provisions of Section 42 of the NDPS Act. It is emphati­cally argued that not only this, in the instant case the informant-cum-Investigating Officer, PW 6, has also given good bye to the provisions so contained under Sec­tion 50 of the NDPS Act, which is held to be mandatory and to be strictly followed and observed in such cases and in that light it was the duty of the officer intending to search under the NDPS Act as to inform the person concerned and to give an op­tion so provided under the law that such search could also be made in presence of a Gazetted Officer of any of the Depart­ments mentioned in Section 42, or before the nearest Magistrate, if he so desired. Because of the accused/appellant not being acquainted and informed of this privilege and the search being made by the 2nd Officer of Tinsukia P.S., it can safely be argued that the mandatory provisions so contained under Section 50 of the NDPS Act have nql at all been followed in the instant case, which also makes the ac­cused/appellants liable to be acquitted. As regards the evidence of the Deputy Direc­tor; Forensic Science Laboratory, PW3, though the said packets are said to have contained opium, it will in noway improve the case of the prosecution as far as the present case in concerned when the man­datory provisions of law contained under Section 42/50 of the NDPS Act are not followed/observed.