- (1.) A proceeding being C Case No. 6 of 1996 arising out of G.R. Case No. 227 of 1996 pending in the Court of Ld. Judge, Special Court, (Under the Narcotic Drugs and Psychotropic Substances Act), Suri, in connexion with Bolpur P.S. Case No. 106 of 1996 dated 25.6.96 under Section 20/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 forms the subject matter of challenge in the instant application that has been filed under Section 482 of the Code of Criminal Procedure.
(2.) The aforesaid police case was started on the allegations which may, in substance, be stated as follows. On 25.6.96 around 1-45 hrs., while the O.C., Bolpur P.S. along with his force was on night patrol duty under the direct supervision of S.D.P.O., Bolpur, he received a secret source information that some people were possessing some packets of Ganja in the house of one Swapan Das at Bolpur (Kalipukur), Hattala. At once, the patrol party rushed to the spot under the direct supervision of the S.D.P.O., Bolpur, and got the house identified. On entering into that house which is a mud-built thatched house, the raiding party found three persons including the owner of the house, Swapan Das, sitting in the open room on the western side of the house with three packets wrapped with newspapers and tied with threads. They all tried to flee away at the sight of the police party, but failed. Those three persons were found sitting surrounding those three packets. On search, the packets were found to contain Ganja. On demand, they could not account for possession of the said Ganja. Ganja was seized in presence of witnesses under a seizure list. The three persons from whose possession the Ganja was seized were arrested and along with the seized articles and they were brought to Bolpur P.S. and on the basis of the F.I.R. lodged by the O.C. the case was started under Section 20/25 of the NDPS Act, 1985 (for short, 'the Act') against them.
(3.) Mr. Amit Talukdar, the ld. Counsel appearing for the accused petitioner has raised the following grounds for quashing the impugned proceeding. The first ground is that the search in the instant case having been carried out at a time between sunrise and sunset, the officer carrying out the search was required under the proviso to Section 42(1) of the Act to record the grounds of his belief that a search-warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of the offender. But from the F.I.R. it is not shown that the grounds of his belief were recorded. It is submitted by Mr. Talukdar that the provisions of this proviso to Section 42(1) are mandatory and the proceeding is liable to be quashed by reason of non-compliance with the requirements of this proviso. The second ground is that under Section 42(2), a copy of the grounds for belief under the proviso to Section 42(1) is required to be sent by the officer concerned forthwith to his official superior. This provision, according to Mr. Talukdar, is also mandatory and when the grounds for belief under the proviso to Section 42(1) have not been recorded, the question of compliance with Section 42(2) or for that matter, sending a copy of such grounds to immediate official superior cannot arise and as such the proceeding is liable to be quashed by reason of noncompliance with the requirements of Section 42(2) of the Act. The third ground is that of non-compliance of provisions of Sub-section (1) of Section 50 of the Act. It is submitted that it is obligatory on the part of the officer concerned while acting under sectin 42 to inform the persons to be searched that if they so required before the nearest Gazetted Officer or the nearest Magistrate as provided under Sub-section (1) of Section 50 and that failure to take them to the Gazetted Officer or the Magistrate would amount to non-compliance with the requirements of Sub-section (1) of Section 50 which are also mandatory and there is nothing in the F.I.R. to suggest that the petitioners were so informed before the search was actually carried out. Accordingly, it is submitted that the proceeding is liable to be quashed for non-compliance with the provisions of Section 50(1). The fourth ground urged is non-compliance with the provisions of Sub-section (4) of Section 50 of the Act which prohibits search of a female by anyone excepting a female. In the instant case one of the accused petitioners was a female and the F.I.R. does not indicate that the raiding party included a female member. This provision is also mandatory and according to Mr. Talukdar, by reason of non-compliance with this mandatory provision, the impugned procedure is liable to be quashed at least so far as it relates to the petitioner No. 1, who is a female. The fifth ground relates to some infirmity in the seizure list itself. Mr. Talukdar points out that in the seizure list there is reference to the P.S. Case which gave rise to the present proceeding. Seizure is alleged to have been effected between 2-30 hrs. and 3 hrs. while the F.I.R. was lodged at 8-15 hrs. Mr. Talukdar argues that if the seizure was first made and thereafter the F.I.R. was lodged and on the basis of that F.I.R. the P.S. Case was started how is it that the case number was available to the O.C., author of the seizure list, before even he had lodged the F.I.R. Accordingly, Mr. Talukdar submits that the seizure list cannot be believed and if so, possession of the narcotic which constitutes the gravamen of the offence cannot also be believed and on that score, the impugned proceeding is liable to be quashed.;