Crl.A. 95/2007 BEFORE HON’BLE MR.JUSTICE A.K.GOSWAMI This criminal appeal is directed against the Judgment and order dated 29.3.2007 passed by the learned Special Judge, Cachar, Silchar in Special Case No. 28/2004 convicting the accused appellant under section 20(b)(ii) (C) of the Narcotic Dr ugs and Psychotropic Substance Act, 1985 ( for short, NDPS Act.) and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1.00 l ac, in default, further rigorous imprisonment of one year. 2. Heard Mr. Z.Alam, learned counsel appearing for the appellant an d Mr. B.S.Sinha, learned Addl. Public Prosecutor, Assam. 3. The prosecution case, in brief, is that on 10.11.2004, one Shri V.K.Singh of 151 Battalion, CRPF lodged an FIR before the Special House Office r , Police Station (S),Silchar stating that on a specific information from the r egional cell of the Unit, raids/search operation was conducted at village Rangpu r under Silchar Police Station, Silchar town in the intervening nights of 10.11. 2004 and 11.11.2004 by the troops of 151 Btn. of CRPF along with the senior Offi cers of the Unit and that during the search operation, the suspected person, nam ely, the appellant, was apprehended and 11 packets of Ganja weighing about 300 k gs, which was kept inside a Maruti Van bearing Registration No. MN -1A- 6170 was seized from the vehicle possessed by the appellant and that the said vehicle wa s found in the compound of the appellant. The FIR also indicates that the appreh ended persons with the seized items were handed over to the Police Station for c onsequential steps to be taken by them. Accordingly, Silchar Police Station case No. 1624/2004 under section 20(C) of the NDPS Act was registered. 4. The police started investigation and on completion thereof, submitted ch arge sheet against the appellant. Accordingly, Sessions (Special) case No.28/200 4 was registered. The learned trial Judge framed charges under section 20(b)(ii) (C) of NDPS Act and the same having been read over to the appellant, he pleaded not guilty and claimed to be tried. During the trial, the prosecution examined 5 witnesses. The defence adduced no evidence. 5. PW 1 is one Surjeet Singh, who deposed that on receipt of the secret inf ormation that some arms and weapons were to be transported from Jiribum to Silch ar on 10.11.2004, they started checking of vehicles. In the meantime, there was another secret information that at Central Water Commission area at Rongpur, some ganja was kept by some Manipuri persons i n their house and accordingly, they went to the house of that particular person, opened the gate and knocked at the door and found the accused person there. Hen ce, the house and premises were searched but there was no ganja to be found . Ho wever, one Maruti Van bearing Registration No. MN-1A-6170 was found in the shed. On being asked about the owner of the vehicle, according to him, the appellant informed him that some one had kept it there and had left. It is also recorded i n his evidence that the accused brought out the key and thereafter, on being ope ned, 11 packets of Ganja packed in Polythene bags were found in the dickey of th e vehicle. He had deposed that he had looked for independent witnesses but as it was night, they could not find any body. The seizure list was produced and the same was exhibited as Exhibit-1, through which the vehicle and packets of ganja were seized from the possession of the accused. It further came out from his evi dence that the accused, the vehicle and ganja were taken to Dayapur camp. Subseq uently, The FIR was lodged by Shri V.K.Singh on 11.11.2004. In the cross examina tion, it has come out that Exhibit -1, seizure list was written in the house of the accused and the articles were seized at night at about 8.30 PM of 10.11.2004 . He did not remember as to who wrote the Exhibit -1. He further stated that Day apur camp is about 17 KM from the place of occurrence. He had clearly stated in his cross-examination that no search warrant from the Magistrate was obtained be fore searching the house of the accused. He has also indicated that the house be longed to the accused, as stated by him. 6. PW 2, Jiten Kalita was also a member of the party that carried out th e search and seizure operation on the night of 10.11.2004 and 11.11.2004. He sta ted that the accused and his wife were found in the house and nothing incriminat ing was found inside the house. However, when the Maruti Van kept in the campus was opened with the keys provided by the appellant, it was found that there were 11 packets of Ganja weighing 3 quintals. In the cross examination, this witness had stated that Ranjit Chakraborty and M.Gandhi put their signatures in the Day apur Camp. It is also borne out in his cross examination that there were three f amilies residing near the house of the accused. 7. PW 3, Jasimuddin and PW 4 ,Monoranjan Das were posted at the Silchar PS and they deposed that on 11.11.2004, CRPF personnel had produced the Maruti Van at about 8.30 AM where there were packets of Ganja and the same were seized by the Sub-Inspector, Mr.B.U.Laskar, vide Exhibit-3. In cross examination, they st ated that they were not aware from where the ganja was seized. 8. PW 5 is the Investigating Officer and he also deposed about the Maruti Van along with ganja being produced in the Police Station on 11.11.2004, which w ere seized as per seizure list Exhibit -3. He had produced Forensic Science Labo ratory Report, Exhibit -4, which disclosed that sample gave positive test for ca nnabis ( ganja). He was not the Officer who submitted the charge-sheet, as he wa s transferred in the meantime. However, he deposed that one Mr.F.A.Laskar had su bmitted the charge sheet in the case, which was exhibited by him as Exhibit -5. He had also adduced in his evidence a Sketch Map and proved the same as Exhibit -6. In the cross examination, he indicated in the Sketch Map the house in ques tion as that of one Kulamani Singh. It has also come in his examination that he did not examine any neighboring witnesses. He also deposed that he was not aware as to whether CRPF personnel had any power to seize ganja under the NDPS Act. 9. The accused appellant was examined under section 313 Cr.P.C. by the lea rned Trial Court. It came out in such statement that he had been falsely implica ted in the case by taking him from the road. 10. Mr. Alam, learned counsel for the appellant has submitted that there wer e gross irregularities in the procedure adopted by the raiding party while condu cting search and seizure. He submits that the intelligence input received by the CRPF was not taken down in writing. There is also no evidence on record suggest ing that the authority which had made the seizure has been empowered on that beh alf by the Central Govt. There is also no manner of doubt that the seizure was m ade around 8.30 PM. If the evidence of PW 1 is to be believed, it is after the s un rise and before sun set, the period during which, under normal circumstances, entry for search and seizure can be made. Placing reliance on the provision of the Sub-Section 2 of Section 42, he urges that no justification and/or explanati on has been provided for as to why entry and search had to be conducted around 8 .30 PM at night. No explanation had also been forthcoming as to why the search w arrant from the authority could not be obtained. It is also his contention that the prosecution case has miserably failed to prove that the house belonged to th e accused appellant. On the contrary, from the materials on record, Exhibit-6, i t is also crystal clear that the premises in which the search was conducted belo nged to one Kulomani Singh and not the appellant. No explanation had been forthc oming as to why the witnesses of the neighborhood were not examined during the c ourse of investigation. There is also no evedence on record that there was any n exus of the appellant with the Maruti Van seized, which purportedly contained th e seized articles. Accordingly, the learned counsel for the appellant urges that in view of the flagrant violation of the provisions of the NDPS Act, which are to be meticulously followed during the entry and search, having been breached with impunity, the impugned judgment of the learned trial court is vitiated and the same is liable to be set aside and quashed. For the foregoing reasons, it i s submitted that the prosecution has failed to establish the guilt of the accuse d beyond reasonable doubt and as such, he is entitled to acquittal. The learned counsel for the petitioner has placed reliance on Judgment rendered in the case of Manik Debnath and Anr.-Vs.-State of Assam, reported in 2008(1) GLT,2005. 11. Mr. B.S.Sinha, learned Addl.PP ,Assam, on the contrary, submits that t here is no manner of doubt that the ganja in question has been seized from the possession of the appellant. It is also his contention that there is no requirem ent in law mandatorily requiring the raid party to put in writing the secret inf ormation received from its source. He has also submitted that according to the e vidence of PW 1, it is crystal clear that the accused appellant had made availab le the key of the Maruti Van in question and it was he who said that the said pr emises belonged to him. He also tried to justify the delay in producing the accu sed appellant before the Police Station by submitting that the circumstances may not have warranted production of the accused appellant at the late hour. The re port of the FSL having established that the seized articles are narcotic substan ces, the infraction, as claimed by the learned counsel for the appellant, would not vitiate the conviction of the accused appellant. He says that the materials on record would amply demonstrate that the accused appellant was in possession o f 300 kgs of ganja and, therefore, his conviction is liable to be sustained. 12. In Manik Debnath (supra),this Court had held that when the prosecution f ailed to prove that the search, seizure and arrest was made by an authorized Off icer, the search, seizure and arrest conducted are illegal ab-initio. This Court also held that it is incumbent on the Officer concerned to state the grounds of belief and also send a copy of the grounds of belief to his immediate official superior within 72 hours. 13. I have considered the rival submissions of the parties and perused t he material on record. One of the striking features of the case is that entry an d seizure was made at around 8.30 PM,according to PW 1 and 2. The FIR lodged on 11.11.2004, however, indicates that the search and seizure was made in the inter vening night of 10.11.2004 and 11.11.2004. The reference to the intervening nigh t on 10.11.2004 is significant in view of the fact that unless the seizure had t aken place around mid night, the question of mentioning that it was done in the intervening nights of 10.11.2004 and 11.11.2004 may not have arisen. Be that as it may, the fact of the matter remains that it was done beyond sun set. By now i t is quite established by the various pronouncements of the Apex Court that havi ng regard to the severity of punishment, the provisions of NDPS Act has to be sc rupulously observed. A duty is cast on the prosecution to establish with some de gree of certainty that the provisions have been complied with as is required und er the law. There is nothing on record to suggest that members of the CRPF part y who had conducted the raid was in anyway empowered to do so. Least the prosecu tion could have done was to adduce evidence suggesting that the raid party was a uthorized under the law to take action under the provisions of NDPS Act. Sadly, that has not been done. If that be so, the very foundation of the prosecution ca se is severely compromised. Unless there is empowerment authorizing the persons to conduct such raid, search and seizure carried out has to be construed as whol ly unauthorized. The fact that there was no disclosure of grounds of belief by t he Officer that there was compelling circumstances to conduct the raid at night, hence, entry after sun set would also have its own implication. In my opinion, the ratio of Manik Debnath ( Supra) is squarely applicable. 14. The matter does not rest there. The perfunctory nature of investiga tion carried out by the authorities is amply borne out by the fact that in the d escription of seized articles, the signature of Ranjit Chakraborty at Sl.1 has b een left vacant. The signatures appearing in the seizure list, Exhibit- 1 are th at of Ranjit Chakraborty and M.Gandhi. According to PW 2, the signatures were ta ken in the Dayapur Army Camp. There is no evidence on record to indicate that th e aforesaid Ranjit Chakraborty and M.Gandhi were party to the raid. If we are to believe the prosecution case, seizure had been taken place in the house and, th erefore, two witnesses putting their signature at Dayapur Army camp could not ha ve arisen. The evidence of PW-1 is also somewhat ambiguous in as much as while i n his examination - in -chief, he had indicted that because it was night they co uld not find any independent witness, he denied a suggestion in the cross examin ation that he had not called any neighboring people to the place of occurrence. Both these versions cannot go together. Either there was no person in the vicin ity or there were persons but they had declined to give witness of the seizure. 15. The prosecution case has not come out with any explanation whatsoever, as to why people of the neighboring houses could not be examined during the course of investigation. Non examination of Kulomani Singh, who is the owner of the ho use, as revealed from Exhibit-6, Sketch Map, also raises doubt in the prosecutio n case. With respect to the vehicle that was found in the premises, no effort wa s made to find out to whom it belongs . The prosecution led no evidence to estab lish who the owner of the vehicle was or how the appellant was connected with su ch vehicle. There is no evidence to suggest that the appellant is the owner of t he house in question where he was allegedly found at the time when search was co nducted. These infirmities cannot be brushed aside. 16. Having regard to the materials on record, I am of the opinion that th e entry, search, seizure and arrest had been done in a manner which is not autho rized by law. The alleged recovery of ganja, which the appellant disputed to be in his possession in his 313 Cr.PC. statement, can not also be ignored altogeth er. In his 313 Cr.P.C. statement the appellant had submitted that he had been fa lsely implicated and that he had been taken from the street and thereafter, arre sted. 17. In view of the above, the conviction and sentence awarded by learne d trial court by the impugned judgment and order is not sustainable in law an d the same, is accordingly, set aside and quashed. The appellant is acquitted an d set at liberty. 18. In the result, the appeal is allowed. No costs. 19. Send down the lower court records.