1 IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/33/2026 Joshwa Josey Vs. The State Mr. Sumit Kumar Sakthi … for the petitioner Mr. Sumit Kumar Karmakar … for the State July 03, 2026 [SR] Item No.8 1. The instant application is filed under section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 directed against the order passed by the learned Special Judge (NDPS), Port Blair. 2. The petitioner herein preferred an application under section 250 of the Bhartiya Nagarik Suraksha Sanhita, 2023 praying for discharge amongst other grounds. 3. The grounds taken by the petitioner were that Gazette Officer was part of the raiding party and was not an independent witness infringing thereby the provisions section 50 of the NDPS Act, 1985; seized contraband article was not weighed on the spot of recovery; FIR was registered after seizure of the contraband item; there was unjustified delay in dispatching for forensic examination of the contraband article and others. 4. The Trial Court, while disposing of the application considered all the pleas taken by the present petitioner. The 2 Trial Court was also of the view that the grounds agitated in the petition were essentially questions of fact and a Court at the time of hearing discharge application should look into the documents and the charge sheet and not any other documents to form a, prima facie, opinion. The Court was of the opinion that the application was meritless and dismissed the same in terms of the impugned order dated 18.03.2026. 5. The learned Counsel for the petitioner argued that if the very foundation of the prosecution is not tenable, then, trial would be within its ambit to discharge the petitioner. According to the learned Counsel, in this case, the essential conditions for prosecution and proceed with the trial are missing. Therefore, according to the learned Counsel, the impugned order should be set aside and the petitioner should be discharged. 6. The learned Counsel for the petitioner relied upon the decision of the Division Bench of this Court in Isdhan Seikh vs. Union of India reported in 2022 SCC OnLine Cal 1545. 7. The learned Counsel for the State, per contra, argued that all the issues raised were mixed questions of law and facts which cannot be decided at the stage of consideration of charge and discharge. In course of the trial, these facts can be decided. It was further argued that all the compliances with the applicable provisions of NDPS Act,1985 had been complied with; even then the mixed question of law and fact remains open which can only be decided on full-fledged trial. In 3 nutshell, learned Counsel argued that there is no infirmity in the order passed by the Trial Court. 8. I have heard rival submissions. 9. Section 227 of the Code of Criminal Procedure, 1973 provides the procedure for discharging the accused. The corresponding provision is section 250 of the BNSS, 2023. In both the provisions, it is enjoined upon the courts to peruse the record of the case and the documents submitted therein and to pass order accordingly if there is no sufficient ground for proceeding against the accused. In Union of India vs. Prafulla Kumar Samal reported in (1979) 3 SCC 4 , it was observed by the Supreme Court of India that the Special Judge should not act as a trial judge but should weigh evidence and form opinion only on the limited question of whether a prima facie case was made out. 10. Expression “the record of the case” occurring in Section 227 of the Code of Criminal Procedure means documents and articles produced by prosecution. This was explained by the Supreme Court of India in M.E. Shivalingamurthy vs CBI reported in (2020) 2 SCC 768. 11. The decision referred to by the learned Counsel for the petitioner is not applicable in the instant case since, in the said case, the decision was passed where a full-fledged trial took place and final judgment was delivered by the Trial Court. 4 12. In the instant case, prima facie, incriminating elements were produced before the Trial Court. The Trial Court considered those, prima facie, materials. There was no scope to go beyond the ambit of such materials. This apart, the grounds raised by the petitioner in preferring discharge application had been considered duly. It is also open to the petitioner to agitate the grounds at the time of trial and argument. Scope of raising these pleas are still open. 13. For the reasons stated above, this Court accepts the view of the Trial Court that those are question of law and fact and at the stage of hearing discharge application these question cannot be decided. 14. Accordingly, the instant application stands dismissed. The Trial Court is directed to expedite the trial as early as possible. 15. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities. ( Sugato Majumdar, J. )