NDPS Act | Calcutta High Court Suspends Conviction Of Four, Cites Infirmities In Investigation & Violations Of Mandatory Statutory Provisions

The Calcutta High Court has recently suspended the convictions and 15-year prison sentences of four persons under the Narcotic Drugs & Psychotropic Substances Act (“NDPS Act”), for the alleged possession of commercial quantities of cannabis.

In allowing the application for suspension of sentence and bail under Section 389(1) of the CrPC, pending the disposal of the final appeal, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:

There are several facts to prove the faulty investigation made in the present case. The entire search and seizure process of the alleged contraband which is the genesis of the NDPS case, cannot be accepted as credible. The infirmities in the investigation and the violations of the mandatory provisions, dealt above, including of section 42, 52-A of the NDPS Act read with section 100 of the Cr.P.C, persuades this Court to suspend the sentence imposed upon the petitioner/appellants and grant bail to the petitioners/appellants pending hearing of the appeal.

Brief Facts of the case

The present application under Section 389(1) of the CrPC had been moved against the judgement of the Special Court, NDPS at Cooch Behar, which had convicted the appellants for offences punishable under Section 20 and 29 of the NDPS Act.

The appellants were sentenced to 15 years of rigorous imprisonment, and fine of Rs 1,50,000 each, in default of which to undergo further imprisonment for two years.

While the impugned judgement had been appealed, the present application was filed for suspension of sentences and conviction of the accused.

Counsel or the appellants submitted that the judgement passed by the NDPS Court was not good in law and the convictions and sentences must be suspended.

It was argued that various sections of the NDPS Act such as Section 42 (1)(a) and Section 42(2) as well as Section 52A and 57 had been violated in this case.

It was submitted that there were no independent seizure witnesses and that there was a mismatch in the quantity of samples collected and those sent for testing. Counsel argued that a Gazetted Officer had been made part of the raiding team instead of an independent witness.

The Additional Public Prosecutor appearing for the State submitted that the appellants should not be released since the Trial Court’s findings were justified on facts and that narcotic substances of commercial quantity were removed from the appellant’s possession and as such non-compliance with provisions of the NDPS act would not affect the conviction.

Findings of the Court

Court began by dealing with Section 42 of the NDPS Act which dealt with the power to enter, search, seize and arrest without warrant to officers of a designated rank.

It was observed that the second proviso to Section 42(1) dealt with an officers “reason to believe” the presence of illicit drugs before they would be able to enter or search a place between sunset and sunrise, only if a search warrant could not be obtained without affording the offender an opportunity to conceal evidence or escape.

Court noted that in this case, the information was received around 2pm and the raid was conducted at 12:45 am the same day and seizure was made between 2:45am-5:35am that night.

It held that the officer in such a case would be obligated to record his grounds of belief that a search warrant could not be obtained without compromising on the seizure before entering or searching any premises without a warrant. Since the same had not been done in this case, the Court held that the mandatory condition of Section 42(1) was not complied with.

Court observed that one Debashish Ghosh who had accompanied the raiding team was not an independent witness but instead a gazetted officer and that the alleged desire of the accused to be searched by an officer would not relinquish the right under Section 50 of the Act, which laid down the conditions under which search may only be conducted by a duly authorised officer under Section 41, 42 and 43.

Court also found that there had been no compliance with Section 52A, which enumerated the manner in which seized contraband had to be disposed of. It was found that, while the officer would have to inventory the seized goods and identify them, they would also need to make an application to any Magistrate to certify the same by taking samples of the substance in presence of such Magistrate. It was found that such steps had not been complied with in the investigation.

It was observed that there was a mismatch in the quantity of samples collected and those sent to the expert. Court found that the lab report showed a discrepancy in the quantity of substance seized and the one reflected in the CFSL report.

Court noted that while the seizure was only made at the police station and not the place of occurrence, there were no independent witnesses to the same, which was not in line with the procedure laid down under Section 100(4) of the CrPC.

In dealing with the findings of the NDPS Court Cooch Behar, it was held that the findings therein were directly contrary to the material placed before the Court and the evidence of the witnesses.

Court reiterated that the complainant did not furnish a written complaint with regard to commission of any offence under the NDPS act, or forward the same to his superior within 72 hours as was required under Section 42(2) of the NDPS Act.

It was observed that the trial court had overlooked crucial aspects of the latches in the investigation and also not dealt with the violation of Section 42(1)(a) and 42(2) of the NDPS Act, along with other irregularities.

The lacunae in the impugned judgment in the present case and the issues which have either been overlooked, misconstrued or erroneously dealt with by the learned Trial Court persuade us to hold that this is a fit case where we can invoke the powers under section 389(1) of the Cr.P.C for suspension of the order of conviction and sentence and direct release of the petitioners/appellants on bail pending the hearing of CRA 309 of 2019, it concluded.

Finally in dealing with the procedural aspect of suspension of conviction and sentence in case of conviction for a term of 10 years or more, under Section 389(1)’s first proviso, the Court issued a written-show cause to the public prosecutor to file a written objection on behalf of the State.

In negating all the points raised by the public prosecutor, the Bench reiterated its findings that the infirmities in investigation and violation of mandatory provisions of the NDPS Act by the investigation team would make this a fit case for suspension of sentence under Section 389(1) of the NDPS Act.

Citation: 2023 LiveLaw (Cal) 327

Case: Babu Mondal & Ors. vs The State of West Bengal

Case No: CRAN 1 of 2019 in CRA 6 of 2019

Click Here To Read/Download Judgment