- (1.) THIS appeal, by special leave of a Division Bench of this Court is by the Assistant Director of Narcotics Control Bureau, Eastern zonal Unit, Calcutta against the judgement dated 4th April, 2001 passed by the learned Judge, Special Court under NDPS Act, 6th Court, Barasat in NDPS case no. 68/1997 whereby he had acquitted the respondent herein of having committed an offence punishable under Section 20 (b) (ii) of the NDPS Act. The prosecution case is based on a complaint lodged by Radha Govind Pal (P. W. 1), Intelligence Officer (EZU), Calcutta and the case made out in the said complaint may be summarised thus :- (a) Acting on an intelligence, a batch of Officers of Narcotic Control bureau, Calcutta led by a Gazetted Officer had been to the spot at Bangur avenue Bus Stand, V. I. P. Road on 18. 12. 1997 at 17. 15 hours and found the respondent standing therein with a small black coloured old and used clothing bag in his right hand. The Officers introduced themselves to him and informed of their intention to search him on suspicion that he was carrying Narcotic Drugs for delivery to a party. On being asked, the respondent replied in the negative. (b) Giving no reliance upon such statement, the Officers called upon two independent witnesses from the on lookers and offered him an opportunity to be searched personally before a Magistrate or a Gazetted Officer. He was also informed that one Gazetted Officer was accompanying the raiding party. The respondent opted to be searched before the accompanying gazetted Officer. (c) On search in presence of two independent witnesses 280 grams of solid black substance in the form of sticks believed to be Hashish/charash wrapped in a black coloured polythene packet were recovered inside an old clothing packet carried by the respondent in his right hand. (d) Upon interrogation on the spot the respondent admitted that he was carrying the contraband substance to deliver a party. (e) A small quantity from the said recovered substance was tested with the field test kit and it responded positive to the test of Hashish/charash. (f) The recovered quantum of contraband substance along with its container polythene packet and clothing bag were seized in presence of witnesses under seizure list. (g) Thereafter, samples of 25 grams each in duplicate were drawn from the recovered contraband substance and the same were kept in separate packets which were duly sealed and signed by the independent witnesses, the respondent and the Seizing Officer. The rest quantum of substance was kept in a separate packet and the same was also duly sealed and signed by the independent witnesses, the respondent and the Seizing Officer. (h) The appellant then served notice under Section 67 of NDPS Act in pursuance whereof the respondent made statement at NCB Office on 18. 12. 1997 at 23. 00 hours wherein he admitted the fact of his carrying the contraband substance for sale. (i) Thereafter, the sample drawn from the recovered and seized contraband substance was sent to the Chemical examiner, Chemical laboratory, Customs House, Calcutta and the chemical examiner (P. W. 5)submitted his report certifying the existence of Charash/hashish in the sample. On the basis of aforesaid complaint and on consideration of the materials on record, charge was framed against the respondent under Section 20 (b) (ii) of the NDPS Act. The respondent denied the charge and claimed to be tried.
(2.) TO substantiate its version, the prosecution examined as many as six witnesses of whom P. Ws. 1,2,3,4 and 6 are all Officers of NCB (EZU), calcutta and P. W.-5 is the Assistant Chemical Examiner, Chemical laboratory Customs House , Calcutta who on 13. 1. 1998 had submitted report in connection with this case. Apart from leading oral evidence, the prosecution also tendered and proved large number of Exhibits. The defence case as it appears from the trend of cross-examination of p. Ws and from the answer given by the respondent in reply to his examination under Section 313 of the Cr. P. C was one of absolute innocence and denial of the prosecution case. The positive defence was that the respondent was falsely implicated ; that he was arrested from Burrabazar when he had gone there to purchase cloth along with elder brother and from burrabazar he was taken to the Office of NCB where his signature was obtained on blank papers forcibly. However, no evidence was adduced in defence.
(3.) THE learned Trial Judge after considering the evidence as well as the submissions made on behalf of the parties acquitted the respondent by the impugned judgement on the ground of non-compliance of the mandatory provisions regarding search and seizure as also for withholding the two independent witnesses who according to prosecution version were present at the place in question during the entire period of alleged search and seizure and other formalities conducted by the NCB Officers. We have heard the learned Counsel appearing for the parties. We have been taken through the judgement passed by the learned Trial Court and the materials including the documents filed therein.;