Tripura High Court
Sri Ajit Debbarma vs The State Of Tripura on 19 April, 2021
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HIGH COURT OF TRIPURA
AGARTALA
CRL. A.(J) 23 of 2019
Sri Ajit Debbarma,
son of late Mohanta Chandra Debbarma, resident of Ratanpur (Tillabari),
Khowai, P.S. Khowai, District- Khowai, Tripura
----Appellant(s)
Versus
The State of Tripura ----Respondent(s)
For Appellant(s) : Mr. D. Debbarma, Advocate
For Respondent(s) : Mr. S. Debnath, Addl. PP
Date of hearing : 17.03.2021
Date of delivery of judgment
& Order : 19.04.2021
Whether fit for reporting : Yes / No
BEFORE
HON'BLE THE CHIEF JUSTICE AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
(Arindam Lodh, J.)
This appeal is directed against the judgment and order of conviction and
sentence dated 19.03.2019 passed by the learned Special Judge, Khowai,
Tripura, in case No. Special (NDPS) 15 of 2018 whereby and whereunder the
appellant was convicted under Section 20(b)(ii)(c) and 25 of the NDPS Act,
1985 and sentenced to suffer rigorous imprisonment for 10 (ten) years and to
pay a fine of Rs. 1,00,000/- with default stipulation.
2. Heard Mr. D. Debbarma, learned counsel appearing for the appellant
as well as Mr. S. Debnath, learned Additional PP appearing for the
respondent.
3. Briefly stated, the Officer-in-Charge of Khowai PS received a secret
information on 02.06.2018 at 0705 hours to the effect that huge quantity of
ganja was accumulated in the dwelling hut of the accused-appellant. The said
information was reduced into writing through a GD Entry no. 07 dated
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02.06.2018. The information was communicated to the Superintendent of
Police (SP), Khowai as well as to the Sub Divisional Police Officer (SDPO),
Khowai. Immediately, thereafter, the Officer-in-Charge accompanied by the
Deputy SP (DIB), Khowai and other police officials conducted raid and
searched the dwelling hut of the accused Ajit Debbarma headed by Deputy SP
(DIB). The accused was found absent. Pre-search memorandum (Exhibit 1)
was prepared in presence of two local independent witnesses and other senior
police officers. The information was given to Smt. Joylaxmi Debbarma, wife
of the accused, regarding accumulation of huge quantity of dry ganja in their
dwelling hut and carried on search after obtaining her consent. During pre-
search operation, 19 numbers of plastic bags were recovered. Those were
weighed by a weighing machine brought from the local market. Total 294
kgs. 300 gm. of dry ganja inclusive of plastic bags were measured.
Accordingly, the entire quantity was seized with proper packing with gala and
seal impression. Samples were taken in two number of paper envelopes (each
containing 100 gm), in presence of witnesses and senior police officials and
other police personnel following the provision of law. Post-trap memorandum
(Exhibit-3) was prepared. Thereafter, based on a written complaint by the
complainant, Sukanta Debbarma, Officer-in-Charge of Khowai PS registered
a case vide Khowai PS case No. 2018/KHW/069 dated 02.06.2018 under
Section 20(b)(ii)(c) and 25 of the NDPS Act, 1985, against the accused-
appellant, Ajit Debbarma.
4. Investigation was carried out. Investigating officer had visited the PO,
prepared handsketch map (Exhibit-24), recorded the statement of the available
witnesses under Section 161 Cr.P.C. and seized the dry ganja which were
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found inside 19 nos. of plastic bags weighing 294 kgs. 300 gm. and seized the
entire articles. Prepared inventories and samples were drawn from each
packet for a quantity measuring 100 gm. in separate yellow envelope and after
drawing samples sealed the said envelopes in presence of independent
witnesses. On the same date, a detail report was communicated to the SP,
Khowai and all the contraband goods (except control samples) were kept in
District NDPS store. On 27.06.2018, the investigating officer had arranged to
send the sample drawn to Tripura State Forensic Science Laboratory,
Narsinghar for chemical examination and opinion. Subsequently, report dated
06.09.2018 confirms the samples as dry ganja. During investigation, the
investigating officer submitted a prayer before the learned CJM, Khowai for
certificate of correctness of the inventories and for drawing up of
representative samples with a prayer for pre-trial disposal of the dry ganja
through Drug Disposal Committee (DDC). On 18.08.2018, the accused Ajit
Debbarma had surrendered before the court of learned Special Judge, Khowai,
Tripura. After completion of investigation, the investigating officer has
submitted charge-sheet against the accused. Trial was commenced with
framing of charge against the accused for the offence punishable under
Section 20(b)(ii)(c) and 25 of the NDPS Act, 1985 in two heads to which the
accused pleaded not guilty and claimed to be tried.
5. To substantiate the charge, the prosecution had examined 14 witnesses
and introduced as many as 31 documents and 19 numbers of remnants of
samples (Exhibit MO 1 to 19). At the closure of evidence, the accused was
examined under Section 313 Cr.P.C. when he pleaded his ignorance regarding
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the incriminating evidence adduced against him and pleaded his innocence.
The accused did not adduce any evidence on his behalf.
6. Having heard the argument of the learned counsel appearing for the
parties and on appreciation of the evidences and materials on record, the
learned Special Judge recorded the findings of guilt against the accused and
convicted and sentenced him, as aforestated. Feeling aggrieved and
dissatisfied with the judgment and order of conviction and sentence, the
appellant has preferred the instant appeal before this court.
6. The argument of Mr. Debbarma, for the appellant primarily centered
around that the relevant provisions concerning to recovery, seizure and
custody of the articles were not strictly followed and, the house from which
the dry ganjas were seized belong to the accused-appellant, Ajit Debbarma,
was not proved. Learned counsel for the appellant, in support of his
submission has referred to the case of Goutam Datta vs. State of Tripura,
reported in (2017) 1 TLR 90; State of Punjab vs. Balbir Singh, reported in
AIR 1994 SC 1872; State of Rajasthan vs. Jagraj Singh alias Hansa,
reported in AIR 2016 SC 3041 [(2016) 11 SCC 687]; Gopal Das vs. State of
M.P. (now Chhattisgarh), reported in 2005 STPL (LE-Crim) 49824 CHH;
Ramesh Haldar vs. State of Orissa, reported in 2000 STPL (LE-Crim) 48570
ORI.
7. We have perused the judgments cited by the learned counsel for the
appellant. Principally, those judgments had been dealt with the object of
legislation of the NDPS Act and consequence of the violation of the
provisions of the Act laying down the law that violation of any of the
provisions of the Act would lead acquittal of the accused. Fundamentally, in
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all the judgments referred to as (supra), it was found on fact that there was
gross violation in compliance of the mandatory provisions of Section 41, 42
and 43 of the NDPS Act.
8. Opposing the submission of learned counsel for the appellant, Mr. S.
Debnath, learned Additional PP would contend that in the present case, the
prosecution had been able to prove that all the relevant provisions were
strictly complied with. Further, learned Additional PP has submitted that from
the evidence of PW-4 and PW-7, it became crystal clear that the accused-
appellant was the owner of the house wherefrom the narcotic substances (dry
ganjas) were recovered.
9. Based on the aforesaid rival submission, we have proceeded to
determine the sustainability of the judgment of conviction and sentence
passed by the learned Special Judge, in the present case.
(a)
9.1. Firstly, we may take note of the submission of learned counsel
for the appellant as to whether he was the owner of the house where
from the dry ganjas were recovered and seized. To prove the fact of
ownership, the prosecution adduced two witnesses. PW-4, Samir
Debbarma and PW-7, Saroj Debbarma.
9.2. PW-4, is the Tehsilder of Padmabil Tehsil where the house is
situated from where the dry ganjas were recovered and seized. Deposing
in the case, PW-4 stated that during investigation he issued a certificate
to the investigating officer confirming that the accused, Ajit Debbarma
was „Raiot‟ (owner) of the land under Paschim Belcherra Mouja, Hal
plot no. 1627, khatian no. 11/1, class of land is bastu tilla having area
0.22 acres. He has identified the said certificate (Exhibit 7) and his
signature thereon (Exhibit 7/1). PW-4 also stated the boundary of the
house of the accused.
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9.3 PW-7, on 02.11.2018 was posted as Rural Programme
Secretary (RPS) of Paschim Belchara ADC village. He deposed that the
accused was known to him who was a resident of Paschim Belchara
ADC village under Padmabill RD Block and the ration card no. of the
accused is 2009 and ROR (Record of Residence) no. is 30, Book no. 3.
PW-7 also stated the boundary of the house of the accused. PW-7 also
identified the accused in the dock during trial. He has identified the
certificate (Exhibit 10) bearing his signature (Exhibit 10/1). He denied
the cross-examination of the defence that he issued false certificate.
10. From the evidence of PW-4 and PW-7, coupled with certificates, we
are in full agreement with the learned Special Judge that the prosecution has
been able to prove that the accused-appellant is the owner of the land and
house which was raided and searched by the investigating agency.
11. Secondly, and most importantly, we are to consciously scrutinize
whether the investigating agency has complied with the mandatory provisions
of Section 41, 42, 43, etc. of the NDPS Act.
11.1. PW-1, Bikram Das, deposed that on 02.06.2018 while he was
on duty at about 0705 hours, the O/C of Khowai PS, namely, S.I.
Krishnadhan Sarkar (PW-13) received a secret information over
telephone that huge quantity of ganja were accumulated in the dwelling
hut of Ajit Debbarma. Accordingly, Havildar, Jiban Chandra Barma,
Duty Officer, entered the information into GD vide GD entry no. 7 dated
02.06.2018 as per the information received by the O/C. Immediately, the
O/C communicated the information to the SP and SDPO, Khowai.
Thereafter, PW-1 alongwith other police personnel including a woman
Constable had rushed to the place and in that meanwhile Sri Binay
Kishore Debbarma, Deputy SP (DIB) and Sri Jagadish Debbarma, (AC,
DAR) already arrived at Ratanpur bazaar. All of them entered into the
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house of the accused-appellant and inquired about him but, they were
informed that the accused was not available at the house. They collected
two independent witnesses, namely, Atanu Debbarma and Swarnamoy
Debbarma of the same locality. Since, the accused-appellant was not
present, the police personnel informed in writing to the wife of the
accused, Smt. Jaylaxmi Debbarma that they want to search their
dwelling hut and requested her to co-operate in the said search. The
information passed on to the wife was written in English which was read
over to her in Bengali and having understood, Smt. Jaylaxmi Debbarma
had put her signature. The said information letter (pre-search memo)
relating to Khowai PS GD entry no. 07 dated 02.06.2018 being proved
was marked as Exhibit-1. The signature of Atanu Debbarma (PW-8) as
independent witness being identified was marked as Exhibit 1/3. PW-1,
being the writer of this „pre-search memorandum‟ (information letter)
identified his signature as Exhibit 1/1. On search 19 nos. of plastic bags
containing 294 kgs. 300 gm. of dry ganja were recovered which were
seized by a seizure list (Exhibit-2). PW-1 had drawn two numbers of
samples of dry ganja from each bags measuring 100 gm. each and
recovered contraband articles were kept under the proper seizure list
bearing his signature marked as Exhibit 2/1. He has further deposed that
all the samples he had drawn on the spot and the remnants of dry ganjas
in 19 boxes were separately packed and sealed by wax and signed by
him and countersigned by Binoy Kishore Debbarma, Dy. SP (DIB),
Khowai. PW-1 has also deposed that one of the samples was taken from
each packet i.e. 19 nos. of samples marked as Exhibit A1 to S1 were
available before the court and the packets of sample bearing his signature
as well as signature of Dy. SP (DIB) and Jagadish Debbarma. On
identification, the 19 nos. of samples were marked as Exhibit MO 1 to
MO 19. PW-1, further deposed that he has prepared post-trap
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memorandum in presence of witnesses on the spot bearing his signature
which being identified marked as Exhibit 3 and his signature thereon was
marked as Exhibit 3/1. PW-1 further deposed that he removed the seized
contraband and samples to the PS and subsequently at about 1340 hours
vide GD entry No. 29 dated 02.06.2018 lodged suo-moto complaint
(Exhibit 4) which bears his signature (Exhibit 4/1). PW-1 also deposed
that they could not arrest Ajit Debbarma, the accused appellant. PW-1
further deposed that he has handed over the pre-search memorandum,
seizure list, post-search memorandum, samples , he had drawn on spot
and the remnants of dry ganja to the O/C, Khowai PS.
Being confronted with cross-examination, PW-1 has stated that he did
not make any separate GD entry while proceeding to the spot. Further,
he volunteered that he went to the spot as per GD entry no. 07 dated
02.06.2018. He denied that no secret information was received by the
O/C regarding accumulation of dry ganja in the house of the accused-
appellant. He denied the suggestions put forth by the defence that he
obtained signature of the independent witnesses in a blank paper. PW-1
during his cross-examination volunteered that seizure was made in the
house of Ajit Debbarma. He further volunteered that the remnants of the
sample returned by the SFSL to the court were also available before the
court in a sealed packed which bears his signature besides signature of
Binay Kishore Debbarma.
12. Next, it would be relevant to take note of the deposition of PW-13,
S.I. Krishnadhan Sarkar, the Officer-in-Charge of the police station. He in his
cross-examination stated that initial information was received on 0705 hours
on 02.06.2018 and the said information was entered in GD Entry no. 7 dated
02.06.2018. PW-13, further clarified that GD Entry no. 29 dated 02.06.2018
relates to the submission of complaint by the complainant with the Officer-in-
Charge of Khowai PS, which was made at 1340 hours. He entrusted the case
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to S.I. Sukanta Debbarma for investigation. He identified his signature on the
endorsement (Exhibit-23/2). He also identified the printed FIR (Exhibit-23)
and the signature thereon (Exhibit 23/1).
13. PW-14, S.I. Sukanta Debbarma is the Investigating Officer. He
deposed that being entrusted to undertake investigation, he had visited the
place of occurrence, prepared handsketch map (Exhibit-24) with index
(Exhibit-25), recorded the statement of the available witnesses. PW-14,
further deposed that on 02.06.2018 at about 1700 hours he recorded the
statement of Atanu Debbarma (PW-8) who stated that at about 11.00 am the
police personnel of Khowai PS led by S.I Bikram Das and Dy.
S.P, Binoy Kishore Debbarma went to Tillabari, Ratanpur and asked him to
remain present with them during raid and search in the house of
Ajit Debbarma as they received secret information that huge quantity of dry
ganja were accumulated in the house of Ajit Debbarma which was cordoned
by police. He further stated that since Ajit Debbarma was
not in the house, police personnel had called Swarnamoy Debbarma.
Thereafter, police entered into the house of Ajit Debbarma when his wife Joy
Laxmi Debbarma was found present and in presence of him and others, it was
informed to Joy Laxmi Debbarma that huge quantity of ganja were
accumulated in their house. Thereafter, on her consent S.I. Bikram Das
prepared a presearch memorandum in the house of Ajit Debbarma where he
put his signature( Exhibit1/3). Said Atanu Debbarma has further stated that
during search 19 numbers of plastic bags containing dry ganja were recovered
On being weighed, total 294 Kgs. 300 gms of "dry Ganja" were found in 19
plastic bags and thereafter, S.I Bikram Das seized those bags of dry ganja in
his presence. Atanu Debbarma further stated to PW-14 that he put his
signature on the seizure list (Exhibit2/3). PW-14 also deposed that on
02.11.2018 he collected a certificate relating to the ownership of the
raided house on 02.11.2018 and 30.10.2018 by preparing seizure list (Exhibit
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9 and 8/1 respectively) and, on 02.06.2018 PW-14 prepared the inventory of
seized Narcotic Drugs and Psychotropic Substances where he put his
signature. On identification, the inventory in Annexure-1 under Section 52-
A(2) of NDPS Act, 1985 was marked as Exhibit-26 and, the signature is
marked as Exhibit 26/1. PW-14 also collected the photographs which were
being identified were marked as Exhibits 11,12,13 and 14. On 17.11.2018,
PW-14, being the investigating officer produced the contraband before the
learned Chief Judicial Magistrate, Khowai for obtaining certificate for
correctness of the inventory alongwith signature of learned CJM, Khowai
[Exhibit 26/2 (as a whole)]. On 27.06.2018, Anirban Das, SDPO, Khowai sent
the 19 numbers of sealed packets of sample drawn by S.I. Bikram Das on
02.06.2018 on the spot in a sealed packet with his signature and seal
impression with wax to State Forensic Science Laboratory, Narsinghar,
Agartala. PW-14 identified the forwarding memo (Exhibit 28) and the
signature of Anirban Das, SDPO, Khowai and seal impression (Exhibit 28/1
and 28/2 respectively). He also identified his signature on the forwarding
memo (Exhibit 28/3). PW-14 further deposed detailed information with regard
to the recovery of seized contraband from the house of Ajit Debbarma was
communicated to SP(C.S.), Khowai, Tripura on 03.06.2018 vide dispatch no.
18789 and the same was forwarded by O.C., Khowai PS. He identified the
said report communicated to the SP, Khowai within 72 hours of the incident.
He identified the signature of S.I. Bikram Das which was submitted by O/C,
PS to S.P., Khowai [Exhibit 31 (as a whole)]. Thereafter, he has submitted the
charge sheet at the completion of investigation.
During cross-examination, he denied that the secret information was
not reduced into writing and it was not communicated to the superior
authority. PW-14 had volunteered that on 02.06.2018 at about 0705 hours, a
secret information was received and it was reduced into writing and entered in
GD Entry no. 7 dated 02.06.2018. The copy of the GD Entry extract and the
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information was communicated to S.P. on 03.06.2018 vide dispatch no. 18789
within 72 hours. He denied the suggestions put forth by the defence that
detailed information was not communicated to the superior authority within
72 hours. He stated in cross-examination that contraband articles were seized
by S.I. Bikram Das and he did not reseize the same subsequently.
14. Next, it would be relevant to discuss the evidence of Sri Atanu
Debbarma, PW-8. He was declared hostile. In cross-examination, however, he
stated that "it is a fact that this is the memorandum on which police took my
signature. On identification the signature of the witness is marked as Exhibit
3/3". PW-8 further deposed that accused Ajit Debbarma being his maternal
uncle used to reside in his locality.
15. Next vital witness is PW-3, Binoy Kishore Debbarma, who was
posted as Deputy SP (DIB) on 02.06.2018. He deposed that on that date at
about 7.30 am, the then SP, Khowai, reported him that O/C, Khowai PS, S.I,
Krishnadhan Sarkar received a secret information over telephone that huge
quantity of ganja was accumulated in the dwelling hut of Ajit Debbarma at
Ratanpur Tillabari under Khowai PS. Accordingly, he was directed to conduct
raid in the house of accused Ajit Debbarma. Thereafter, he alongwith Jagadish
Debbarma, AC, DAR, accompanied by some police staffs went to Tillabari
and cordoned the house of Ajit Debbarma. Search operation was carried on
after preparing pre-search memorandum. Dry ganjas in 19 packets weighing
294 kgs. 300 gms. were recovered. PW-3 further deposed that S.I. Bikram Das
had drawn two number of samples of dry ganjas from each bag measuring 100
gm. each and seized the recovered contraband under a proper seizure list in
which he put his signature (Exhibit 2/2). He further deposed that sample taken
from each bags i.e. 19 no. of samples (Exhibit A-1 to S-1) were available
before the court and the packets of samples bears his signature beside the
signature of S.I. Bikram Das. He also identified the representative samples
(Exhibit A-1 to S-1) and his signatures thereon. He further deposed that
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samples which were marginally marked as Exhibit A to S were sent to
Forensic Science Laboratory and for report. After examination of remnants of
Exhibit A to S were returned back to the court duly packed and signed by the
Forensic authority. He identified his signature on the packets of remnants
returned to the court (Exhibit 6 to 6/18). PW-3 further deposed that they
removed the seized contraband and the samples to the P.S. and subsequently
at about 1340 hours vide GD Entry no. 29 dated 02.06.2018, S.I. Bikram Das
lodged suo-moto complaint with the O/C, Khowai PS.
Nothing material came out from his cross-examination.
16. PW-5, Sri Bijoy Debbarma is a Constable of police who accompanied
the police team which raided the house of Ajit Debbarma.
17. PW-6, Sri Alin Debbarma, is the witness of 4 nos. of photographs
inrespect of recovery of ganja. He identified the photographs (Exhibits
11,12,13 and 14).
18. PW-9, Sri Biswajit Dey, was the photographer. He deposed that on
that date in his presence, S.I. Sukanta Debbarma produced huge quantity of
dry ganja in some sealed packet and those were weighed at the direction of
learned CJM, Khowai in his presence and, thereafter, from each of the sealed
packets samples were drawn before the CJM, Khowai and, thereafter, samples
were packed and the remnants of the contraband were again packed, sealed
and sent to the learned Magistrate and counter signed by S.I. Sukanta
Debbarma in his presence. He has taken the photograph.
19. PW-11, Sri Suman Kumar Chakraborty, was posted as Deputy
Director (Chemistry), State Forensic Science Laboratory, Government of
Tripura, Agartala. He deposed that he received a parcel from Dr. HK
Pratihari, Director-cum-Chemical Examiner, Government of Tripura. He
found a parcel intact and tallied with specimen seal for examination and
report. He identified the remnants of the samples packed by him in 19
envelopes by which they were forwarded to their laboratory. He has identified
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his signature on the envelopes. In cross-examination, he denied that he
prepared a fabricated report.
20. PW-12, Sri Goutam Sukla Das, was a Constable who was one of the
members of the team that raided the house of the accused.
21. On close scrutiny of the evidences and materials on record, it has
come to fore that on 02.06.2018 at 7.00 am, a secret information was received
about accumulation of huge quantity of ganjas in the house of the accused. It
has been established beyond any doubt that the said secret information was
reduced into writing with the entry in GD Book as GD Entry no. 7 dated
02.06.2018. It is also established that copy of the extract of the GD entry and
information was communicated to SP, Khowai on 03.06.2018 vide dispatch
no. 18789 within 72 hours, as prescribed under the Act.
22. From the evidence of PW-3, Deputy SP (DIB), Khowai, it is evident
that the S.P. himself reported the matter to him that the O/C, Khowai PS,
Krishnadhan Sarkar had received a secret information over telephone
regarding accumulation of dry ganjas in the house of the accused when he
directed PW-3 to conduct raid in the house of the accused. He alongwith other
police officials accordingly proceeded to the house of the accused. The
accused was not found at home. However, Smt. Joylaxmi Debbarma, wife of
the accused was present. The purpose of raid was informed to her by S.I.
Bikram Das (PW-1). Accordingly, pre-search memorandum was prepared by
him. In the pre-search memorandum, Smt. Joylaxmi Debbarma put her
signature. PW-8, Atanu Debbarma, also put his signature. Though PW-8 was
declared hostile, but, in his cross-examination he has identified the said
memorandum over which he put his signature. PW-8 also identified his
signature on the pre-search memorandum. Thereafter, search operation was
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conducted. 19 packets containing dry ganjas were recovered and those
packets were weighed and a total of 289 kgs. 300 gm. of dry ganjas were
recovered. We find no reason to dis-believe the recovery of said quantity of
dry ganjas from the house of Ajit Debbarma, the appellant herein.
23. Next, it is established that the house which was raided by the police
personnel on 02.06.2018 was the house of Ajit Debbarma, the appellant
herein. The certificate of Tehsilder of the concerned village (PW-4) and, the
evidence of Saroj Debbarma (PW-7), Rural Programme Secretary (RPS)
appearing before the court had confirmed that the appellant, Ajit Debbarma, is
the owner of the raided house from which the dry ganjas were recovered by
the police.
24. From the above discussion and finding, it has become crystal clear
that after receipt of the secret information, it was reduced into writing and the
same was communicated to the S.P., Khowai.
25. Sub-section (2) of Section 41 of the NDPS Act, 1985 clearly
stipulates that the Superintendent of Police being such an Officer of gazetted
rank in the department of Police, empowers to direct any officers subordinate
to him, but, superior in rank to a peon, sepoy or a constable to arrest or
search a building, conveyance or place whether by day or by night or himself
arrest such a person or search a building, conveyance or place. In the case in
hand, on receipt of the information from the O/C, Khowai PS that huge
quantity of dry ganjas were accumulated in the house of the accused, the SP,
Khowai, authorised the Deputy SP, Binoy Kishore Debbarma (PW-3) to
conduct raid immediately.
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26. The submission of the learned counsel for the appellant that no search
warrant was issued by a competent Magistrate to conduct raid and search of
the house of the accused was made in violation of the mandate of Section
41(2) of the NDPS Act, stands repelled for the reason that under the said
Section not only the Magistrate but also the designated authorities, as
provided under sub-section (2) of Section 41 of the said Act, may authorise
his subordinate officers holding the rank above Constable, Sepoy, Peon to
conduct raid. Only requirement of law is that, in absence of search warrant,
the investigating officer has to state the grounds of urgency for not obtaining
search warrant to make entry and search of a particular place, building or
place. In the instant case, it transpires that the secret source informed the
Officer-in-Charge, Khowai PS that if search operation is not conducted at that
instance, then, those contraband articles would be smuggled to Bangladesh.
That information stating the ground was reduced into writing and, the said
information was passed on to the S.P., Khowai, who without loss of time
instructed the Deputy SP, Khowai, to conduct raid and search of the house of
the accused as per the secret information.
27. Here, it is apparent that the Officer-in-Charge, Khowai PS has
recorded the reasons to believe that fulfils the requirement of Section 42(2) of
the NDPS Act, 1985. The extract of GD entry no. 7 and other detailed
information sent to the S.P., Khowai within 72 hours were not disputed by the
defence, as they could not shake the evidence of the prosecution witnesses in
this regard.
28. The learned counsel for the appellant has relied upon the judgment of
Jagraj Singh (supra) to persuade us that the mandatory requirements under
Section 42(2) of the NDPS Act that reasons are to be recorded for not
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obtaining search warrant has not been complied with in the instant case. But,
the evidences reveal that the prosecution agency has been able to establish the
fact that reasons of urgency to conduct raid and search at the house of the
accused has been recorded and entered in the GD Book vide GD entry no. 7
dated 02.06.2018. Even the ground mentioned in the post-trap memorandum
(Exhibit-3) was communicated to the S.P., Khowai within 72 hours.
29. In view of those established facts and circumstances, we are unable to
disagree with the findings recorded by the learned Special Judge, North
Tripura, Dharmanagar holding the accused-appellant as guilty of committing
offence under Section 20(b)(ii)(c) of the NDPS Act, 1985.
30. Accordingly, the instant appeal stands dismissed. The judgment and
order of conviction and sentence, as returned by the learned Special Judge,
North Tripura, Dharmanagar, stands affirmed.
Send down the LCRs immediately.
(ARINDAM LODH,) J (AKIL KURESHI), CJ
Saikat
