IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present :- Hon’ble Justice Amrita Sinha Hon’ble Justice Ajay Kumar Gupta CRA (DB) 50 of 2024 Prasanta Mandal & Anr. Vs. Narcotic Control Bureau & Ors. For the appellants :- Mr. Kumar Shantanu, Adv. Mr. Taiab Sahadat, Adv. Mr. Parthib Bhowmick, Adv. For the NCB :- Mr. Sudipto Majumdar, DSGI. Mr. Tridip Saha, Adv. Mr. Sourav Kar, Adv. Heard on :- 02.07.2026 & 03.07.2026 Judgment on :- 10.07.2026 Uploaded on :- 10.07.2026 Amrita Sinha, J.:- 1. The judgment dated 30th July, 2024 passed by the learned Additional District and Sessions Judge, 1st Court, Cooch Behar, Judge Special Court in NDPS Case No. 9 of 2022 convicting and sentencing both the appellants under Section 20 (b) (ii) (C) of the NDPS Act, 1985 is under challenge in the instant appeal. 2. The appellants are full blooded brothers. Six hundred ninety kilogram of ganja (690 Kg) was recovered from the house, where the appellants were staying. They have been sentenced to suffer rigorous imprisonment for fifteen years and fine of rupees two lakh, in default, further imprisonment of one year. 2 3. The appellants challenge the judgment of the learned Trial Court on the ground of non compliance of mandatory safeguards under Section 50 of the NDPS Act, 1985 (herein after referred to as ‘the Act’ for the sake of brevity). Submission is that as the aforesaid provision is mandatory in nature, accordingly, non compliance of the same would vitiate the entire proceeding. 4. It has been alleged that the gazetted officer was a part of the raiding team and participated in the entire process of search and seizure. He cannot be said to be an impartial person. His evidence cannot be said to be fair and unbiased. 5. It has further been alleged that, the respondents failed to ascertain as to whether the house from where the contraband was recovered and seized, belonged to the appellants. In the absence of a definite finding that the house belonged to the appellants, the articles recovered therefrom cannot be proved to belong to the appellants. 6. No independent witness was available. The persons, alleged to be independent witnesses, did not support the case of the prosecution. On the contrary, the said independent witnesses deposed against the prosecution. The call detail records of the appellants were not examined. No electronic evidence or footage, linking the appellants with the contraband, has been brought on record by the prosecution to establish the charge against the appellants. 7. The prosecution failed to establish conscious possession of the contraband by the appellants due to lack of corroborative evidence and incomplete chain of circumstances. 8. There has been enough delay in sending the samples for testing. 9. The seizure list is a manufactured document created only for the purpose of framing the appellants. The independent witnesses categorically denied signing the 3 seizure list which, according to them, was not prepared on the spot of search and seizure. The same was prepared in the battalion of the Commandant of the Border Security Force. 10. The Investigating Officer of the case received late information and reached the place of occurrence after the seizure was over. 11. The date on which the search and seizure was conducted has been wrongly deposed by the witnesses, and as such, their deposition cannot be relied upon. 12. There are several discrepancies and lacuna in the entire proceeding which has to be treated as fatal in the fact and circumstances of the instant case since the same touches the root of the prosecution case. 13. The appellants rely on the following judgments in support of their case: (i) State of Rajasthan Vs. Parmanand & Anr. reported in (2014) 5 SCC 345. (ii) Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609. (iii) Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala reported in (1994) 6 SCC 569. (iv) State of Punjab Vs. Baldev Singh reported in (1999) 6 SCC 172. (v) Ahmed Vs. State of Gujarat reported in (2000) 7 SCC 477. (vi) Md. Jabir Sk. & Anr. Vs. State of West Bengal, CRA 245 of 2018 decided on 11.05.2022 (Calcutta High Court). (vii) Mohan Lal Vs. State of Punjab reported in (2018) 17 SCC 627. (viii) Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417. 4 (ix) Jitendra & Anr. Vs. State of M.P. reported in (2004) 10 SCC 562. (x) Senthil Vs. State by Inspector of Police, Madras High Court (2020). (xi) Avtar Singh & Ors. Vs. State of Punjab reported in (2002) 7 SCC 419. (xii) Dharampal Singh Vs. State of Punjab reported in (2010) 9 SCC 608. (xiii) Union of India Vs. Bal Mukund reported in (2009) 12 SCC 161. (xiv) Tofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1. (xv) Kanhaiyalal Vs. Union of India reported in (2008) 4 SCC 668. 14. Prayer has been made to release the appellants by setting aside the impugned judgment. 15. Learned Deputy Solicitor General of India opposes the submission of the appellants. It has been submitted that all the provisions under the Act were duly complied with both at the time of conducting the search and seizure and during the entire proceeding including the trial. 16. Huge quantity of contraband has been seized from the house where the appellants were staying. The house of the appellants was identified by the local people. The authority is not required to establish ownership of the house from where the appellants were very much present and arrested and the contraband seized. The appellants never denied that they were not arrested from the subject house or that search and seizure was not conducted at the subject place. It has also not been denied that the contraband articles were not recovered from the said house and they were not arrested from the place as mentioned in the arrest memo. 17. The address of the appellants mentioned in the memo of arrest and in the appeal preferred by the appellants is the same. From this it can be inferred that the appellants 5 never questioned the identity of the house from where the contraband was seized in their presence. The appellants never disclosed any reason for their presence in the subject house where two ladies along with kids early in the morning on the day of the raid. They never denied their presence in the subject house from where the contraband was seized. 18. It has been categorically denied that the seizure list was not prepared at the spot. Reliance has been placed on the deposition of PW 4 and PW 6, wherein it has been clearly mentioned that the raiding NCB team carried with them the weighing machine, laptop and the printer at the time of search. The seizure list was prepared on the spot and the signatures of the witnesses, including the independent witnesses, were taken. The allegation that the seizure list had been prepared at a later date was not pressed at the stage of trial. 19. As the independent witnesses were declared hostile, accordingly, the evidence by the said witnesses was not relied upon at the time of adjudication of the proceeding by the Trial Court. 20. It has been submitted that even though Section 50 of the Act will not be applicable in the instant case as the contraband was recovered from the house where the appellants were residing, but despite the same, notice under Section 50 was duly served upon both the appellants and they were also informed about their legal right under the Act. 21. Minor discrepancy in recording the date of search and seizure in the deposition sheet ought not to be treated as fatal. The learned Trial Court considered the depositions of the witnesses threadbare and convicted the appellants. There is hardly any reason to interfere with the impugned judgment. 6 22. In support of their stand, the respondents rely on the following precedents delivered by the Hon’ble Supreme Court: (i) State of Rajasthan Vs. Ram Chandra reported in (2005) 5 SCC 151. (ii) State of Punjab Vs. Baldev Singh reported in (1999) 3 RCR (Criminal) 533 (SC) : (1999) 6 SCC 172. (iii) Gurbax Singh Vs. State of Haryana reported in (2001) 1 RCR (Criminal) 702 (SC) : (2001) 3 SCC 28. (iv) S. Jeevanatham Vs. State through Inspector of Police, T.N. reported in (2004) 3 RCR (Criminal) 333 (SC) : (2004) 5 SCC 230. (v) State represented by Inspector of Police, Vigilance and Anti-corruption, Tiruchirapalli, T.N. Vs. Jayapaul reported in (2004) 5 SCC 223. 23. Prayer has been made to dismiss the appeal and affirm the order of conviction. 24. We have heard and considered the rival submissions made on behalf of both the parties and have perused the documents available on record. 25. For the purpose of interfering with the judgment of conviction passed by the learned Trial Court, this Court has to be satisfied that the process of search and seizure suffers from statutory non compliances and that the evidence of the parties were not properly assessed by the Trial Court. 26. For the purpose of ascertaining the above, this Court has scanned the entire evidence of all the witnesses and also the statements made by the accused under Section 313 Cr.P.C. From there it appears that on 19th January, 2022, secret information was received by Narcotic Control Bureau (NCB) officer from a reliable source that huge quantity of ganja was stored at the house premises of Prasanta 7 Mondal and Arjun Mondal both sons of Anil Mondal resident of village 2, Maghpala, P.O. -Sitalkuchi, District- Cooch Behar, West Bengal, PIN- 736157. 27. The said information was reduced in writing and intimated to the superior officer. Permission was granted for constituting a team of NCB officers and staff for conducting raid at the subject place. Accordingly, a team of NCB officers and staff moved out from the NCB zonal unit at Kolkata immediately on the next day morning of 20th January, 2022 and reached Cooch Behar in the evening of 20th January, 2022. On 21st January, 2022, the planning for the raid was done. 28. On 22nd January, 2022 morning, the NCB team led by Raju Mukhapadhyay along with lady members and other officers reached near the subject place. The team approached the local people and enquired about the address of the appellants, and relying on their direction, the house of the appellants was identified. Two of the local people were approached by the team with request to act as independent witness during the search operation. Naren Sarkar and Ajit Biswas acted as independent witnesses. 29. The team members found both the appellants present at the subject address. The appellants were informed about the search and sought their cooperation. There were three rooms in the house. Apart from the two male members i.e., the appellants herein, there were two female members and two children in the said house. Notice under Section 50 was issued to the accused and they were made known about their legal right. 30. The accused themselves led the team to two separate rooms in the said house where the contraband was stored. One of the accused led the team to a room containing twenty eight plastic sacks. The team members cut open each and every sack and collected samples separately for testing with the drug detection kit carried by the team and the test result was found positive to the test for cannabis/ ganja. Each of the 8 sacks was labelled, weighed in the electronic weighing machine carried by the team and the sacks were resealed with facsimile brass seal of NCB. 31. The other accused led the team to another room from where twenty one sacks were recovered. The team members followed the similar procedure to test, weigh and reseal the sacks. All total forty nine plastic sacks, total weighing six hundred ninety kilogram of contraband was recovered. A search cum seizure list was prepared on the spot by the seizing officer by using the official laptop, portable printer, UPS and other equipments that the team carried with them. The said list was read over and explained to the appellants and also to the independent witnesses in Bengali. Signature of both the appellants and two independent witnesses as well as signature of the seizing officer and the BSF personnel who was a part of the raiding team was recorded in each and every page of the list. 32. The Investigating Officer, Amal Kumar Sadhukhan reached the spot after the search cum seizure was conducted and the seized articles were handed over to him which were later deposited in the BSF godown for safe custody on 22nd January, 2022, on proper receipt. Notice under Section 67 of the Act was issued to both the appellants with a direction to appear on 22nd January, 2022 for taking further legal action. 33. The appellants were examined under Section 67 of the Act. Their statements were duly recorded. The appellants were informed that their statements could be used against them or against others before the Court. They were also informed that they could remain silent during the enquiry. The appellants disclosed that they used to cultivate vegetables and ganja. They further disclosed that they were storing and trafficking ganja to earn easy money. 34. On the basis of the seizure and the statement of the appellants, they were arrested and a proper arrest memo including the grounds of arrest was handed to them. The 9 family members of the appellants were also informed. At the time of arrest the appellants were bodily searched wherefrom mobile phone and some documents were recovered. The said articles were kept in envelopes and lac sealed with NCB brass seal after proper labelling. The sealed envelopes were deposited in the BSF godown for safe custody. Medical examination of the appellants was conducted on 22nd January, 2022. 35. The information of seizure and arrest was immediately communicated to the superior officer, Samiran Paul, Superintendent NCB, Kolkata zonal Unit. 36. On 23rd January, 2022 the appellants along with all seized articles and the medical examination report, were produced before the learned Court, when they were remanded in judicial custody. 37. On 24th January, 2022 the Investigating Officer produced the contraband before the learned Court and as per the direction of the Court samples were drawn and resealed on 25th January, 2022, in the presence of the learned Magistrate. Certification under Section 52A of the Act was done on 25th January, 2022 in the presence of the learned Judicial Magistrate and necessary inventory and photographs were taken to be kept with the records. All sealed samples were again deposited in the BSF godown on 25th January, 2022. 38. On 29th January, 2022 all forty nine seized plastic sacks, the sealed envelopes containing the samples of the contraband were deposited in the godown of NCB with proper entry and receipt. The samples along with forwarding letter were forwarded for chemical examination on 31st January, 2022. The chemical examination report was received on 25th February, 2022 and the same was placed before the learned Court. 39. Charge was framed in August, 2022 and the trial started soon thereafter. In the examination of the accused under Section 313 Cr.P.C., they simply denied all the 10 allegations levelled against them. However, no defence witnesses were examined on their behalf to rebut or demolish the evidence regarding search and seizure of the appellants from the house where the contraband was recovered and their subsequent arrest. 40. The Superintendent of NCB, Samiran Paul was the prosecution witness no. 1. He deposed that he duly received the compliance report under Section 57 of the Act from the seizing officer as well as from the Investigating Officer on 23rd January, 2022. He deposed about receiving the samples, registering the same in the godown register and forwarding the samples for chemical examination through the Sepoi. On 30th July, 2022 the seized contraband was disposed of by incineration in presence of the committee members of the Drug Disposal Committee and the destruction certificate issued by the Committee was also produced before the Court. Nothing specific could be extracted from the said witness in the cross examination. 41. Raju Mukhapadhyay, Intelligence Officer, NCB who was the seizing officer deposed as prosecution witness no. 2. He specifically mentioned about receiving of input of storage of huge quantity of contraband, formation of the team and the manner in which search and seizure took place. He also stated as to how he identified the house of the appellants. He stated that he informed the appellants about their legal rights and the principle of Section 50 of the Act. He disclosed that Section 50 notice was issued to both the appellants which they received in the presence of the independent witnesses. He clearly recorded that the independent witnesses signed the search and seizure list which was prepared at the spot using official CPU, monitor, UPS, printer etc. He disclosed about handing over of all articles to Mr. Amal Kumar Sadhukhan, the Investigating Officer, who reached the spot after completion of the search and seizure. 11 He also disclosed about compliance of Section 57. The said witness identified one of the accused. 42. In cross examination, the defence was unable to extract any specific information from him in favour of the appellants. An issue of ownership of the house from where the contraband was seized was raised by the defence where the witness deposed that he did not take any steps to ascertain the ownership of the house but on entering the same he found the appellants along with two female and two children. 43. Ajit Biswas, prosecution witness no. 3 was one of the independent witnesses. He flatly denied recalling the incident at all. He was declared hostile. 44. Naren Sarkar, prosecution witness no. 4, the other independent witness deposed against the prosecution. He stated that his signatures were taken in the BSF camp. 45. Amal Kumar Sadhukhan, prosecution witness no. 5, the Intelligence Officer, NCB, Kolkata zonal unit acted as the Investigating Officer. He deposed that on receiving information about seizing six hundred ninety kilogram of ganja he reached the seizing spot and noticed the seizing officer, the BSF team and the two independent witnesses named above present there. He deposed that the independent witnesses signed in the seizure list. He also deposed about arresting the appellants on the basis of their statement and prior recovery. He mentioned about the issuance of the arrest memo and information given to the family members. He disclosed the compliance of Section 57 of the Act and the compliances required under Section 67. He identified both the appellants in open Court. In cross examination, nothing contradictory could be proved. 46. Virender Kumar, the Assistant Commandant, BSF deposed as prosecution witness no. 6. He mentioned about being part of the raiding team along with other staff of BSF. He disclosed about the manner in which the search and seizure took place and he 12 mentioned about the signatures of the team members along with the independent witnesses being recorded on the spot. The deponent, however, failed to identify the appellants by mentioning that the cause of action took place long ago. He deposed that he did not know the two persons who signed the seizure memo. He also deposed that at the time of the search and seizure, no outsider entered into the house. He denied the suggestion that the signatures were made by him in the BSF camp. 47. Ashim Kumar Mandal, Sepoi/constable of NCB deposed as prosecution witness no. 7. He disclosed that he was a part of the raiding team and the manner in which the search and seizure took place was vividly described. He deposed that the two independent witnesses were present during the entire search and seizure procedure and he further stated that the appellants were made aware of their legal right to search the members of the raiding team but the appellants refused to do so and permitted the raiding team to proceed with the search operation. 48. Md. Rehan Raza, deposed as PW 8. He was the constable of BSF. He deposed about being a part of the raiding team and the manner in which the entire process took place. He disclosed that on 25th January, 2022 the inventory certification of the seized articles was done at the BSF camp in the presence of a Judge. At that time photographs were taken with his mobile phone. The photographs were marked as exhibits. The witness identified the appellants in the open Court room. The defence was not able to extract any contradictory statement of the said deponent. 49. From the aforesaid it is evident that all the statutory requirements under the Act were scrupulously followed by the prosecution. The appellants have tried to make out a case that the notice under Section 50 was not issued. The same does not appear to be proper. The said notice appears to be duly issued. From the Trial Court Records it appears that the appellants were searched to find out whether they were carrying any 13 weapons or arms. The contraband was recovered from two separate rooms in the house where the appellants were staying. At the time of personal search, the Investigating Officer recovered the Section 50 notice issued to the appellants and the said notice was exhibited as material exhibit at the time of trial. Specific case of the prosecution is that no contraband was recovered or seized from the persons. 50. An issue with regard to ownership of the house from where the contraband was seized has been raised by the appellants. It has been sought to be argued that the prosecution ought to have verified the ownership of the house. It is evident that the prosecution has clearly submitted that the authority is not concerned with the ownership but its only lookout is the place from where the contraband is recovered. Ownership of the house is immaterial. It transpires from the deposition of PW 6 that during the entire process of search and seizure none entered the subject house. The appellants had conscious possession of the contraband. 51. Upon scanning of evidence it does not appear that the defence made out a case that the house did not belong to the appellants. The reason as to why the appellants, along with female members and children, were staying in the said house from where the contraband was recovered has not been disclosed. On the contrary, in the deposition under Section 313, the appellants have mentioned their address which matches with the address from where the contraband was recovered. The same, accordingly, cannot be taken to be as a valid defence. 52. It further appears from the depositions that the raiding team identified the house of the appellants after enquiring from the local people who were present nearby. The appellants never categorically denied the search and seizure which took place at the said house in their presence. If the appellants really intended to question the ownership 14 of the contraband, then defence witness ought to have been produced to disprove the charge levelled against them. 53. No case could be made out by the appellants that the contraband does not belong to them or that the said contraband has been surreptitiously planted in the said house by a third party to frame them. In the absence of any credible evidence as to how the contraband could be found where the appellants were staying, the only logical deduction would be, that the contraband belonged to the appellants and the appellants consciously stored the contraband in the house where they were staying irrespective of the fact whether they were the owners of the house or not. 54. Further challenge in the appeal is that credible independent witnesses were absent at the time of search and seizure. It is evident that the learned Trial Court did not rely upon any evidence given by the independent witnesses as they were declared hostile by the prosecution. The judgment of conviction was passed completely relying upon the evidence given by the other witnesses and documents produced by the prosecution. 55. It is settled law that non availability of independent witness cannot be held to be fatal at all times. The quality of the evidence is important for adjudicating the case and not the quantity thereof. It is no gainsaying that common people does not wish to be involved in legal hassles and it becomes very difficult to always get hold of independent witness to sign documents and depose before the Court. More often than not, independent witness hardly turns up during the trial and if they do at all appear before the Court, they tend to forget everything. Such appears to be the case at hand. 56. The official prosecution witnesses categorically deposed that two independent witnesses were present during the entire process of search and seizure and their signatures were taken in the search cum seizure list. But the witnesses, for understandable reasons, depose contrary to the above. Both the witness’s submissions 15 were rightly discarded by the Trial Court. Absence of independent witness will not be fatal in the facts and circumstances of the instant case. 57. Absence of the call detail records or electronic evidence linking the appellants with the contraband has also been stressed as a ground for setting aside the impugned judgment. The appellants also allege that there is no connecting circumstance linking them with the contraband. Surprisingly, in the entire trial the very fact of seizure of such huge quantity of contraband from the house where the appellants were staying has not been specifically denied by the appellants. As there is definite proof of presence of the contraband at the place where the appellants were staying and as the appellants did not produce any reverse proof, accordingly, there is no requirement of proving any further linkage. The conviction has been based upon convincing submissions made by the prosecution. The appellants have not been able to mark a dent on the charges levelled against them. It does not appear that any attempt to make out a case of false implication has been made out by the appellants before the learned Trial Court. 58. The appellants have miserably failed to prove that there was any animosity with anyone who could have planted such huge quantity of contraband inside the rooms of the house where the appellants were staying. The appellants were also unable to substantiate that the prosecution acted in a mala fide manner and framed them. 59. The appellants stress that the confessional statement of the appellants is inadmissible in evidence. It appears that the conviction has been made relying on cogent and definite evidence given by the official witnesses. The appellants did not produce any defence witness. There is practically no contradiction in the evidence of the prosecution witnesses. The minor contradiction in mentioning a date here and there have to be accepted as human error which needs to be discounted keeping in mind the delay in recording evidence before the court of law. It has to be kept in mind that the 16 officers of NCB are regularly performing raids and conducting search and seizure. It may not be possible for them to memorize all dates and corresponding events with absolute precision. Misquoting a date, which can be verified through official records, cannot be held to vitiate the entire proceeding. 60. The allegation of procedural lapses in the process of search and seizure cannot be substantiated by the appellants. On a perusal of the documents on record and the deposition of the witnesses it does not appear that there is any procedural lapse or non compliance of the statutory formalities by the prosecution. The said submission of the appellants appears to be an afterthought. All statutory safeguards and compliances required to be made under the Act has been complied with. 61. The submission of giving benefit of doubt to the appellants does not arise in the facts and circumstances of the instant case. Six hundred ninety kilogram of ganja is a huge quantity. The same would have been used to commit crime against the society had the same not been seized and recovered by the NCB team in proper time. The appellants have been convicted after a full-fledged trial. Slightest leniency shown to the appellants, will give out an absolute wrong message to the society and more particularly to the persons involved in such type of crime. Criminals in such cases have to be dealt with an iron hand. 62. The precedents relied upon by the parties clearly lay down that the statutory mandates and the safeguards are required to be complied with. The Court would not like to deal with each and every precedent separately as there is hardly any quarrel with regard to the settled principle of law. 63. In view of the above, we are of the considered opinion, that the judgment impugned herein does not call for any interference. 17 64. The appeal, accordingly, fails and is hereby dismissed. 65. The judgment dated 30th July, 2024 passed by the learned Additional District and Sessions Judge, 1st Court, Cooch Behar, Judge Special Court in NDPS Case No. 9 of 2022 is affirmed. 66. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities. (Amrita Sinha, J.) I agree. (Ajay Kumar Gupta, J.)