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TMI Blog2016 (9) TMI 1476X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment. The impugned judgment, order of conviction and sentence are quashed and set aside. Appeal allowed - decided in favor of appellant. - CRA No. 330 of 1992 - - - Dated:- 6-9-2016 - Debasish Kar Gupta And Md. Mumtaz Khan, JJ. Amicus Curiae: Mr. Debabrata Roy For the State: Mr. Ranabir Roychowdhury Mr. Arindam Sen Md. Mumtaz Khan, This appeal is preferred by the appellant assailing the judgment, order of conviction and sentence dated December 17, 1991 and December 18, 1991 respectively passed by the learned judge 9th Bench, City Sessions Court, Calcutta in Sessions Trial No. 1 of September 1991 arising out of Sessions Case No. 8 of 1990. By virtue of the impugned judgment appellant was convicted for commission of the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and was sentenced to undergo rigorous imprisonment for 10 years and also to pay fine of ₹ 1 lakh in default to suffer rigorous imprisonment for 3 years more and the period of detention already undergone by the appellant was directed to be set off under the provisions of Section 428 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination has been described as 1.5085 gms. and there was also unexplained delay in sending the sample for chemical analysis which raised doubt about the prosecution story. It is also submitted by Mr. Roy that complainant had also acted as I.O. in the instant case which was not permissible under the law. According to Mr. Roy, Ld. Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned judgment and order of conviction and sentence. Reliance is placed by Mr. Roy on the decisions of Megha Singh Vs. State of Haryana, reported in (1996) 11 Supreme Court Cases 709 and State by Inspector of Police, Narcotic Intelligence Bureau, Madurai Vs. Rajangam, reported in (2010) 15 Supreme Court Cases 369 in support of his submission. Mr. Ranabir Roychowdhury, learned counsel representing the state, did not draw our attention to any evidence on record to take a different view. We have given our thoughtful consideration to the submissions made by the learned Counsels appearing for the respective parties and gone through the evidence and documents on record including the complaint/GDE, formal F.I.R., seizure list, Malkhana register, forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orroboration from P.W.1 and P.W.2, witnesses to the seizure of contraband articles who also identified their respective signatures (Ext.1 and 1/1) on the seizure list. However during cross-examination P.W.1 admitted that he signed on the seizure list without reading the contents of the same but did not agree to the defence suggestion that he was not present at the place of occurrence. Interestingly, no such paper wrapper by which seized contraband articles were wrapped and signatures of the witnesses were obtained, as claimed by P.W.7, was produced either before P.W.1 or P.W.2 for their identification. Even no such seized article was produced before P.W.2 for his identification. P.W.3 is the Senior Scientific Officer, Central Public Health and Drugs Laboratory (Drug Wing) under whose supervision the sample received was analysed and the report (Ext. 2) was prepared. P.W.4 is the then officer-in-charge of Burtolla P.S. who forwarded the seized articles to the Drug Control of West Bengal under his signature on April 3, 1987 (Ext. 4). P.W.5 is the Inspector of Drug, West Bengal Government who admitted that on April 4, 1987 his office received seized articles in connection with Burtolla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. In State of Punjab vs Baldev Singh, reported in (1999) 6 SCC 172, it has been held by a Constitution Bench of the Hon'ble Supreme Court that failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. A Constitution Bench of the Hon'ble Supreme Court in the matter of Vijaysinh Chendubha Jadeja vs. State of Gujarat, reported in (2011) 1 SCC 609 held, inter alia, that the provision of sub-section (1) of Section 50 of the NDPS Act, makes it imperative for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the above decision is quoted below: 4. .................. We have also noted another disturbing feature in this case. PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. The ratio of the above case was also followed in the matter of State by Inspector of Police, Narcotic Intelligence Bureau, Madurai Vs. Rajangam, reported in (2010) 15 Supreme Court Cases 369. The learned Court below did not take into consideration the above aspect of the matter. Therefore, considering the entire facts and circumstances of the case in the light of the discussions and observations made herein above with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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