JUDGMENT
G.C. De, J.
1. This appeal is directed against the judgment of conviction dated 20.11.98 and sentence dated 21.11.98 passed by learned Judge, Special Court, N. D. P. S. Act, Murshidabad in N. D. P. S. Case No. 20/97. By the said judgment the learned Special Judge found the accused Sajahan All guilty under Section 21 of the N. D. P. S. Act, convicted him thereunder and sentenced him to suffer Rule I. for ten years and to pay a fine of Rs. one lac i.e. to suffer further Rule I. for two years.
2. Prosecution case in brief is that on getting source information G. D. No. 781 dated 20.9.97 was recorded after sending one R. T. Message to the Circle Inspector of Police of P.S. Lalgola and thereafter S.I. Prabir Roy along with Force went to village Naldahari after entering the movement in G. D. E 784 dated 20.9.97. Two local witnesses were collected and thereafter Police Force with these witnesses entered into the house of the accused Sajahan AH and disclosing their identity the house was searched and three plastic packets containing 250 gms of Brown Sugar along with a Measuring Scale and weights were recovered from inside the steel trunk. Observing all formalities samples were taken from the three packets and those were sealed and thereafter all the articles was seized on the basis of the seizure list in presence of the witnesses and the accused. The accused was also arrested and was produced before the SDJM, Lalbagh on 21.9.97. The accused was released on bail on 17.1.98. On getting Chemical Examiner’s Report and on completion of investigation chargesheet was submitted on 23.3.98.
3. On 8.6.98 charge under section 21 of the N.D.P.S. Act was framed against the accused and as the accused pleaded not guilty to the charge, prosecution examined as many as six witnesses. No defence witness, however, was examined and the defence case as can be ascertained from the trend of cross-examination of the prosecution witnesses and also the answers given in course of examination under Section 313 of the Code of Criminal Procedure is the complete denial of the prosecution case.
4. The learned Special Judge after a due consideration of the evidence on record and the arguments made by the ld. Counsel of both sides came to a finding that the provision of Section 50 of N. D. P. S. Act was not applicable in the present case inasmuch as the offending materials were not recovered on personal search of the accused. It was also found that there was no defect in taking the sample and preservation of the seized articles. So the learned Special Judge came to a conclusion that the charge against the accused was proved for which he was convicted and sentenced in the manner indicated hereinbefore.
5. In this appeal the learned Counsel appearing on behalf of the appellant was in agreement with the finding of the Trial Court as regards non-application of Section 50 of the N. D. P. S. Act. But he expressed his doubt as regards the actual seizure of the offending materials inasmuch as Malkhana Register of the police station was not produced in Court and that seized articles were also not produced in course of the trial. The learned Counsel further contended that the mandatory provision of Section 42 of N. D. P. S. Act having not been complied with, the finding of the Trial Court is liable to be set aside and the accused is to be acquitted.
6. The ld. Counsel appearing for the State, however, supported the judgment of the Trial Court and it was pointed out that since recovery of the offending materials has been established, the offence cannot be brushed aside altogether. However, the learned Counsel was fair enough to contend that law was expressed in the several decisions on the point of Section 42 of the Act and it would be open to this Court to consider those cases in connection with this appeal.
7. At the very outset it is to be pointed out that all the six witnesses examined in this case are police witnesses as well as members of the raiding party. Independent witnesses like Matiul Rahaman and Nazimuddin Khan were not examined in this case and no attempt was made to produce them in Court. That apart the alleged G. D. Numbers 781 and 784 both dated 20.9.97 were not produced to show that information received was reduced in writing and it was duly communicated to the immediate official superior in compliance with the provision of Section 42(2) of the N. D. P. S. Act. Practically there is no corroboration to the claim that before search and seizure of the house of the accused information received was reduced into writing and was sent to the immediate official superior. So after a due consideration of the materials on record we come to the conclusion that mandatory provision of Section 42 of N. D. P. S. Act having not been complied with in this case, the entire prosecution case has been vitiated.
8. In this case we deem it proper to refer to one decision of this Bench in CRA No. 167 of 1998 decided on 27.2.04 [now reported in 2004(1) CLJ (Cal) 332, Sandhya Das and Anr. v. State of W. B.] in which all the relevant judgments on the point were taken into consideration. In the said judgment the view taken by another Division Bench of this Court in Abdul Khhalek @ Raja v. Narcotic Control Bureau, Eastern Zonal Unit, reported in 2003(1) CHN 85 was also taken into consideration and it was concluded that compliance of the provision of Section 42 is mandatory and that it is incumbent upon the empowered officer before proceeding to search and seizure on prior information to reduce the information into writing and to send the same to his immediate superior officer. We have also considered the view taken by the Apex Court in this regard in State of Punjab v. Baldeb Singh, and in Razak v. State of Kerala, reported in 2000 SCC (Cri) 829, and also in State of Orissa v. Laxman Jena, 2002(5) Supreme 545 and came to the conclusion that non-compliance of Section 42 of N. D. P. S. Act vitiates the trial for which the charge levelled against the accused is construed to be not proved.
9. In this connection it is to be noted from the argument made before the learned Special Judge that P. W. 5 Inspector S.N. Guha being the Gazetted Officer compliance of section 42 was not necessary inasmuch as the entire search and seizure was done in his presence. The Apex Court in Narayanaswami Ravishankar v. Assistant Director, Directorate of Revenue Intelligence, reported in 2002 SCC (Cri) 1865 took the view that when search and seizure is done in public place by a Gazetted Officer it was not necessary for compliance of Section 42 of the Act. In the said case search and seizure was done in the Chennai Airport without any prior information and as such it was held that Section 43 of the Act was applicable. But in the present case search and seizure was made after entering into the house of a private person. Under Section 51 of the N. D. P. S. Act the provision of Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of the Act, to all Warrants issued, and arrest, search and seizure made under the Act. Section 100 of the Code of Criminal Procedure provides for search of closed place as embodied in Chapter VII of the Code of Criminal Procedure. It is incumbent upon the raiding party to get the authority for search and seizure before entering into private premises or private vehicle, Section 41(1) of the N. D. P. S. Act authorises the ld. Magistrate to issue search warrant. Similarly Section 41(2) of the Act authorises the officer of Gazetted Rank of different specified department to authorise any Officer subordinate to him to search a building, conveyance or place. So Section 41 confirms the authorisation either by the learned Magistrate or by a Gazetted Officer before entering inside any private building or conveyance. The provision of Chapter VII of the Code of Criminal Procedure in this regard is not inconsistent with the provision of N.D.P.S. Act. So the Gazetted Officer while searching the place under section 43 of the Act without any prior information is not required to get any search warrant. Accordingly, the decision in Narayanaswami Ravishankar (supra) is in conformity with the scheme of the Act. Section 42 of the Act virtually confirms the legal sanction that neither the police party nor the Officers of Narcotic Cell can enter inside the private vehicle or place without authorisation from the Court or designated Gazetted Officer. But in a case of emergent entry such search warrant or authorisation may be dispensed with only when the Officer entering into such private building or place keeps in writing in advance about the reason of his entry without search warrant or authorisation under the provision to Section 42(1). Such power can also be exercised if the officer proceeds to enter into such private place for the purpose of searching and seizure for working out the information received in advance only after reducing such information into writing and also sending such information to his immediate Superior Officer under Section 42(2) of the Act. So we take the view that even if the Gazetted Officer enters into private building, vehicle or place for the purpose of search and seizure, he is required to comply with the provision of Section 42 of the N. D. P. S. Act.
10. In view of the above discussion and also keeping in view the materials on record it is to be pointed out that the learned Special Judge did not consider this legal aspect of the case, and the prosecution also did not take any effective step for compliance of the provision of Section 42 of the Act by producing the relevant written up record as claimed by the witnesses. For non-production of the written up record, we do not place any reliance on the oral testimony of the Police witnesses examined in this case. Practically non-compliance of the provision of Section 42 of the Act made the alleged search and seizure illegal. So the only conclusion that can be made in a case of this nature is that prosecution has not been able to bring home the charge against the accused for which the order of conviction and sentence passed by the learned Special Judge against the accused/appellant is liable to be set aside and the accused is to be found not guilty to the charge.
11. The appeal is accordingly allowed.
12. The order of conviction and sentence passed by the learned Special Judge are hereby set aside. The accused/appellant Sajahan Ali is found not guilty under Section 21 of N. D. P. S. Act and he is acquitted. He should be set at liberty at once.
13. Let an Advance Order of this judgment be sent to the Jail Authority forthwith.
Sankar Prosad Mitra, J.
14. I agree.