Page 1 of 25

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

CRA (DB) 217 of 2024

With

CRAN 1 of 2025

Jahiruddin Sk.

Vs.

The State of West Bengal

With

CRA (DB) 234 of 2024

Samir Das @ Buro and Anr.

Vs.

The State of West Bengal

With

CRA (DB) 253 of 2024

Bijay Biswas

Vs.

State of West Bengal

Before: The Hon’ble Justice Arijit Banerjee

&

The Hon’ble Justice Apurba Sinha Ray

For the appellants/petitioners in

CRA (DB) 234 of 2024

: Mr. Soubhik Mitter, Adv.

Mr. Liton Maitra, Adv.

Ms. Rajnandini Das, Adv.

Mr. Ayan Biswas, Adv.

Page 2 of 25

For the State

: Mr. Madhusudan Sur, Ld. APP,

Mr. Dipankar Paramanik, Adv.

For the appellants/applicants in

CRA (DB) 253 of 2024

: Mr. Anshuman Chakraborty, Adv.

Mr. S. S. Saha, Adv.

For the appellants/applicants in

CRA (DB) 217 of 2024

: Mr. Arnab Chatterjee, Adv.

Mr. Avik Ghosh, Adv.

Ms. Ankusha Ghosh, Adv.

For the State in CRA (DB) 217 of

2024 and CRA (DB) 253 of 2024

: Mr. Joydeep Biswas, Adv.

CAV on : 31.03.2026

Judgment on : 24.06.2026

Apurba Sinha Ray, J. :-

1. By judgment and order dated July 19, 2024 passed in NDPS case no.

50 of 2021 in connection with Nakashipara P.S. case no. 235 of 2021

under Section 20(b)(ii)(c)/29 of the NDPS Act, the learned Judge,

Special Court, NDPS Act, Nadia at Krishnagar has convicted the

appellants and two others.

2. The three appeals being nos. CRA (DB) 217 of 2024, CRA (DB) 234 of

2024, CRA (DB) 253 of 2024 have been filed by 4 convicts namely

Jahiruddin Sk., Samir Das, Gopal Das and Bijoy Biswas.

3. For the sake of convenience and brevity, the three appeals are being

disposed of by this common judgment.

Page 3 of 25

4. Mr. Souvik Mitter, learned counsel appearing for the convict Samir

Das and Gopal Das in connection with CRA (DB) 234 of 2024 has

submitted that the judgment of conviction and order of sentence are

liable to be set aside primarily on the ground that the provisions of

Section 52A of NDPS Act were not complied with by the concerned

police personnel. In this regard, the learned counsel has drawn our

attention to the judgment of Bharat Aambale vs. State of

Chattisgarh reported in (2025) 8 SCC 452. He has also drawn our

attention to the fact that there was a long delay in sending seized

samples of contraband items to the Forensic Science Laboratory.

Further, no register of Malkhana was produced and exhibited. The

mother quantity of seized contraband was not produced. Thirdly,

samples were drawn on the spot and sent to a forensic laboratory.

Fourthly, there was an attempt to comply with the provisions of

Section 52A after the report was produced from the forensic

laboratory. The photos of contraband articles were also taken after the

receipt of a forensic Science Laboratory report. Fifthly, the seizure list

was not proper and correct.

5. Mr. Mitter has further submitted that in Bharat Aambale (supra)

case, the Hon’ble Apex Court has raised 3 issues. Firstly, there must

be substantial compliance of conditions under Section 52-A of NDPS

Act. Secondly, the destruction of seized contraband items after

keeping the samples for test and thirdly, the certificate of inventory at

Page 4 of 25

the instance of the Judicial Magistrate. Mr. Mitter has further argued

that to prove that there was no substitution of seized contraband

articles, the inventory is required to be done at the instance of the

Judicial Magistrate who will give the certificate of correctness of the

inventory done in his presence. Mere existence of labels will not prove

that samples were drawn in presence of the Magistrate. He has further

pointed out that no Malkhana register was produced during the trial.

Moreover, the PW 1, and not the IO, sent the samples to a forensic

science laboratory in violation of the relevant provisions under NDPS

Act. PW 1 being the defacto complainant was authorized to bring the

seized contraband articles/items to the nearest police station for

keeping the same in safe custody and the law suggests that the IO

shall produce such seized contraband items before the concerned

Judicial Magistrate who will give the certificate of inventory of the

contraband articles and the IO is entitled to draw representative

samples from such seized contraband articles in presence of the

Magistrate. In this case, the same was not done, and as such, Mr.

Mitter has submitted that the provisions of Section 52A of NDPS Act

were not complied with. There was no substantial compliance as

envisaged in Bharat Aambale case and therefore, in his view, the

appellants are entitled to an order of acquittal.

6. Mr. Arnab Chatterjee, learned advocate, appearing for Jahiruddin Sk.

in connection CRA (DB) 217 of 2024 and Mr. Anshuman Chakraborty,

Page 5 of 25

learned advocate appearing for the convict Bijay Biswas in CRA (DB)

253 of 2024 have adopted the argument advanced by Mr. Mitter for

the appellants namely Samir Das and Gopal Das in CRA (DB) 234 of

2024.

7. Mr. Joydeep Biswas, learned counsel appearing for the State has also

relied upon Bharat Aambale (supra) judgment. He has drawn our

attention to paragraph nos. 33, 34, 46, 49, 50(iv) (ii) (vi) (x). Learned

Counsel for the State has submitted that there was substantial

compliance under Section 52A of NDPS Act. He has further submitted

that due to Covid pandemic process of certifying correctness of

inventory was delayed and, therefore, the prosecution case cannot be

disbelieved merely because of such delay which was beyond the

control of the I.O.

8. Learned State Counsel Mr. Biswas has further submitted that the

incident occurred on 23.05.2021 and the relevant Rules, 2022 under

the NDPS Act was published on 23.12.2022. According to him, prior

to such commencement of Rules, the seizure of the contraband and

drawing up of samples at the spot were done on the basis of circular

being no. 1 of 1989 issued under the provisions of NDPS Act and

accordingly, in this case also the seizure of contraband and drawing

up of samples from the mother quantity were guided by the said

circular no. 1 of 1989. Therefore, PW1 being the defacto complainant

had rightly drawn the sample at the spot and sent the samples to the

Page 6 of 25

Forensic Science Laboratory and, therefore, there is no question of

violating the provisions under Section 52A of the NDPS Act.

9. Mr. Biswas has further argued that the appellants Samir Das,

Jahiruddin Sk., Bijay Biswas, Gopal Das were in a Scorpio vehicle and

the contraband was brought by other accused namely Sobor Ali and

Saher Ali Sk. in a truck bearing no. NL-01D/8701. When these 4

appellants went inside the said truck of Sobor Ali and Saher Ali Sk. to

receive the contraband, they were apprehended from the truck. It is

not correct that no independent witness was present at the relevant

time. On the other hand the seizure was done in presence of two

independent witnesses but unfortunately, during trial one of such

witness was declared hostile by the prosecution and another

independent witness did not turn up. Mr. Biswas has further argued

that there are several judgments which hold that the prosecution can

prove the case against the accused on the basis of other materials on

record even if the independent witness did not support the

prosecution case.

10. Mr. Biswas has further submitted the rules called Narcotic

Drugs and Psychotropic Substances (Seizure, Storage, Sampling and

Disposal) Rules, 2022 [henceforth ‘Rules,2022’ ] provide for the

procedure to be followed at the time of seizure and also for storage

sampling, disposal of the seized articles. Rule 29 of the said Rules,

repealed the Standing Order No.1 of 88 dated 15.03.1988, Standing

Page 7 of 25

Order No. 2 of 88 dated 11.04.1988 issued by the NCB, and the

Standing Order No.1 of 89 dated 13.06.1989 and the G.S.R. 38(E)

issued by the Government of India, alongwith the other Notifications.

However, sub-rule (2) of Rule 29 states that notwithstanding such

repeal, anything done or any action taken or purported to have been

done or taken under the Standing Orders or notification repealed by

sub-rule (1), shall in so far as it is not inconsistent with the provisions

of the said Rules, be deemed to have been done or taken under the

corresponding provision of the said Rules.

11. It was also argued by the learned prosecutor that time and

again it has been reiterated by the Hon’ble Apex Court that having

considered the legislative history of Section 52 A of the NDPS Act,

1985 and other statutory standing orders as also the judicial

pronouncements, it would be clear that the same would lead to an

inevitable conclusion that delayed compliance or non-compliance of

Section 52A neither vitiates the trial affecting conviction nor can be

the sole ground to seek bail. It was further submitted that in view of

Section 54 of NDPS Act, 1985, the courts are to presume unless and

until the contrary is proved that the accused had committed an

offence under the Act in respect of any narcotic drugs or psychotropic

substances etc. for the possession of which he failed to account for

satisfactorily. Unless such statutory presumption is rebutted by the

accused during the course of trial, there would be a prima facie

Page 8 of 25

presumption that the accused had committed the offence under the

Act, if he is found to have possessed the contraband drug and

substance, and if he fails to account satisfactorily, as contemplated in

the said provision of Section 54. It is further submitted that as per the

settled legal position even the evidence collected by an illegal search or

seizure could not be excluded or discarded.

12. Mr. Biswas has relied upon paragraphs 16, 17 and 18 of the

judgment in Union of India vs. Mohanlal reported in (2016) 3 SCC

379.

13. Mr. Biswas has further submitted that pursuant to the above

judgment of the Hon’ble Supreme Court, the Narcotic Drugs and

Psychotropic Substances (Seizure, Storage, Sampling and Disposal)

Rules, 2022 was published by the Ministry of Finance (Department of

Revenue) by its notification no. G.S.R. 899(E) dated 23.12.2022.

14. It was also argued on behalf of the respondent State that on

06.05.2024, a Division Bench of this High Court in Aizul Seikh @

Ajijul Sk and Anr. Vs. The State of West Bengal (CRA 602 of 2019)

has discussed when and how samples from contraband articles were

to be drawn and in what manner.

15. Mr. Biswas has relied upon paragraph nos. 18 to 25 of the

judgment in Narcotic Control Bureau vs. Kashif reported in 2020

SCC OnLine SC 3848 in support of his contention that Section 52A

prescribes the procedure to be followed by the authorized officer for

Page 9 of 25

the disposal of such contraband narcotic drugs and psychotropic

substances at the pre-trial stage and when the contraband articles are

recovered from possession of the accused, the courts are entitled to

presume unless and until the contrary is proved that the accused had

committed offences under the Act in respect of such contraband

articles.

16. By relying upon the judgment of Bharat Aambale (supra), Mr.

Biswas has submitted even where there is non -compliance with the

procedural requirements of section 52 A, it does not necessarily vitiate

the trial or warrant an automatic acquittal. If the prosecution can

otherwise establish the chain of custody, corroborate the seizure with

credible testimony and prove its case beyond reasonable doubt, the

mere non-compliance with Section 52A may not be fatal. By referring

to Surepally Srinivas vs. State of AP (Now state of Telangana)

reported in 2025 SCC OnLine SC 683 , decided on 25.03.2025 by the

Hon’ble Apex Court, Mr. Biswas has submitted that what is to be seen

in this type of case is whether there has been substantial compliance

with the mandate of Section 52A and if not the prosecution must

satisfy the Court that such non-compliance does not affect its case

against the accused. In fact, the Hon’ble Supreme Court by the

aforesaid order dated 25.03.2025 has accepted with approval the

decision of Kashif (supra).

Page 10 of 25

17. According to Mr. Biswas in the case in hand, the contraband

articles were found from the possession of the convicts and although

there are minor defects in the prosecution case, the same are not fatal

since the convicts have miserably failed to rebut the statutory

presumption under NDPS Act. Accordingly, Mr. Biswas has urged that

the conviction and order of sentence passed by the trial court should

be upheld.

18. In reply Mr. Mitter has submitted that the order of conviction is

based on evidence illegally admitted during trial and also for non-

consideration of material pieces of evidence brought on record during

cross-examination. The learned Judge had acted in defiance of the

provisions of law by filing up the gap in the prosecution case by

introducing imaginary facts and conjectural circumstances. Mr. Mitter

has relied upon several judgments i.e. Vijay Jain vs. State of

Madhya Pradesh reported on (2013)14 SCC 527 (para 10,11,12),

Yusuf @ Asif vs. State reported in 2013 SCC OnLine SC 1328

(para 12 to 17), Bharat Aambale vs. State of Chattisgarh reported

in 2025 SCC OnLine SC 110 (para 50).

Court’s view:

19. From the judgments referred to above it is found that recently

the Hon’ble Supreme Court in Bharat Aambale (supra) has laid down

the following propositions. Para 50 is reproduced hereinbelow:-

“50. We summarize our final conclusion as under: -

Page 11 of 25

(I) Although Section 52A is primarily for the disposal and

destruction of seized contraband in a safe manner yet it

extends beyond the immediate context of drug disposal, as it

serves a broader purpose of also introducing procedural

safeguards in the treatment of narcotics substance after

seizure inasmuch as it provides for the preparation of

inventories, taking of photographs of the seized substances

and drawing samples therefrom in the presence and with the

certification of a magistrate. Mere drawing of samples in

presence of a gazetted officer would not constitute sufficient

compliance of the mandate under Section 52A sub-section (2)

of the NDPS Act.

(II) Although, there is no mandate that the drawing of samples

from the seized substance must take place at the time of

seizure as held in Mohanlal (supra), yet we are of the opinion

that the process of inventorying, photographing and drawing

samples of the seized substance shall as far as possible,

take place in the presence of the accused, though the same

may not be done at the very spot of seizure.

(III) Any inventory, photographs or samples of seized substance

prepared in substantial compliance of the procedure

prescribed under Section 52A of the NDPS Act and the Rules

/ Standing Order(s) thereunder would have to be

mandatorily treated as primary evidence as per Section

52A sub-section (4) of the NDPS Act, irrespective of whether

the substance in original is actually produced before the

court or not.

(IV) The procedure prescribed by the Standing Order(s) / Rules

in terms of Section 52A of the NDPS Act is only intended to

guide the officers and to see that a fair procedure is adopted

by the officer in-charge of the investigation, and as such

Page 12 of 25

what is required is substantial compliance of the procedure

laid therein.

(V) Mere non-compliance of the procedure under Section 52A or

the Standing Order(s) / Rules thereunder will not be fatal to

the trial unless there are discrepancies in the physical

evidence rendering the prosecution’s case doubtful, which

may not have been there had such compliance been done.

Courts should take a holistic and cumulative view of the

discrepancies that may exist in the evidence adduced by the

prosecution and appreciate the same more carefully keeping

in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution,

oral or documentary inspires confidence and satisfies the

court as regards the recovery as -well as conscious

possession of the contraband from the accused persons, then

even in such cases, the courts can without hesitation proceed

to hold the accused guilty notwithstanding any procedural

defect in terms of Section 52A of the NDPS Act.

(VII) Non-compliance or delayed compliance of the said provision

or rules thereunder may lead the court to drawing an

adverse inference against the prosecution, however no hard

and fast rule can be laid down as to when such inference

may be drawn, and it would all depend on the peculiar facts

and circumstances of each case.

(VIII) Where there has been lapse on the part of the police in

either following the procedure laid down in Section 52A of

the NDPS Act or the prosecution in proving the same, it will

not be appropriate for the court to resort to the statutory

presumption of commission of an offence from the possession

of illicit material under Section 54 of the NDPS Act, unless

the court is otherwise satisfied as regards the seizure or

Page 13 of 25

recovery of such material from the accused persons from the

other material on record.

(IX) The initial burden will lie on the accused to first lay the

foundational facts to show that there was non-compliance

of Section 52A, either by leading evidence of its own or by

relying upon the evidence of the prosecution, and the

standard required would only be preponderance of

probabilities.

(X) Once the foundational facts laid indicate non-compliance

of Section 52A of the NDPS Act, the onus would thereafter be

on the prosecution to prove by cogent evidence that either (i)

there was substantial compliance with the mandate

of Section 52A of the NDPS Act OR (ii) satisfy the court that

such non-compliance does not affect its case against the

accused, and the standard of proof required would be

beyond a reasonable doubt.”

20. In Yusuf @ Asif (supra) the Hon’ble Supreme Court has been

pleased to hold that no evidence had been brought on record in the

said case to the effect that the procedure prescribed under sub -

sections (2) (3) and (4) of Section 52A of the NDPS Act was followed

while making this seizure and drawing up sample such as preparing

the inventory and getting it certified by the Magistrate. In the said

case the Hon’ble Apex Court has discussed the case of Mohanlal

(supra) in paragraphs 15 and 16 of the reported judgment which are

profitable to quote:

Page 14 of 25

“15. In Mohanlal’s case, the apex court while dealing

with Section 52A of the NDPS Act clearly laid down that it is

manifest from the said provision that upon seizure of the

contraband, it has to be forwarded either to the officer-in-

charge of the nearest police station or to the officer

empowered under Section 53 who is obliged to prepare an

inventory of the seized contraband and then to make an

application to the Magistrate for the purposes of getting its

correctness certified. It has been further laid down that the

samples drawn in the presence of the Magistrate and the list

thereof on being certified would constitute primary evidence

for the purposes of the trial.

16. In the absence of any material on record to establish that

the samples of the seized contraband were drawn in the

presence of the Magistrate and that the inventory of the

seized contraband was duly certified by the Magistrate, it is

apparent that the said seized contraband and the samples

drawn therefrom would not be a valid piece of primary

evidence in the trial. Once there is no primary evidence

available, the trial as a whole stands vitiated.”

21. In Vijay Jain (supra), Hon’ble Apex Court has also pointed out

that samples of contraband articles are to be drawn in the presence of

Judicial Magistrate.

22. It is true that in Kashif’s judgment the Hon’ble Supreme Court

was pleased to hold that the heading of Section 52A of NDPS Act

makes it clear that the said provision was inserted for the disposal of

the seized narcotic drugs and psychotropic substances. As per the

Page 15 of 25

settled rule of interpretation the section heading or marginal note can

be relied upon to clear any doubt or ambiguity in the interpretation of

any provision and to discern the legislative intent. The long title of

NDPS Act leaves no room of doubt that the said provision of Section

52A was inserted for an early disposal of the seized narcotic drugs and

psychotropic substances and such measures were introduced for

respecting the relevant international commitment as well. It is further

observed in the said decision that any deviation or delay in deciding

the application at the instance of the Magistrate can only be

characterized as irregular which should be corrected without affecting

the outcome. When sufficient material is collected by the Investigating

Officer to establish that search and seizure of the contraband

substances was made in due compliance of the mandatory provisions

of the Act, that is sufficient to hold that the accused cannot be

released on bail nor acquitted in the trial. It is also held thereunder

that as per Section 54 of the said Act the Courts are entitled to

presume that the accused had committed an offence under NDPS Act

unless and until the contrary is proved.

23. Admittedly, in this case, the samples were drawn at the place of

occurrence on 23.05.2021 and it is also admitted by the IO that the

said sample was sent to Forensic Science Laboratory on 23.06.2021

by him. It is also found from the record that the chemical examination

report was prepared on August 2, 2021. The record further shows that

Page 16 of 25

the IO obtained the certificate of inventory at the instance of the

Judicial Magistrate, 1

st

Class, 2

nd

Court, Krishnanagar, Nadia on

11.08.2021. Therefore, a certificate of correctness of inventory was

obtained by the prosecution after receipt of the Forensic Science

Laboratory or after the examination of the samples was done at the

instance of the Ministry of Environment, Forests and Climate Change,

Government of India. The learned State Counsel was very much

vociferous that the sampling and seizure was done in view of standing

order No. 1/89 dated 13

th

June, 1989. Admittedly, PW 1 was the

Seizing Officer. Now let us examine Section II of the said standing

order which dealt with general procedure for sampling, storage etc. In

point no. 3.0, it has been laid down that the Seizing Officer of the

concerned department should dispatch samples of the seized drugs to

one of the laboratories of the Central Revenue Control or laboratory

nearest to their office depending upon the availability of the test

facilities. It is also laid down that the State Enforcement Agencies may

send samples of seized drugs to the Director/Deputy Director/

Assistant Director of their respective Forensic Science Laboratory.

24. If that is the circular, it appears that PW 1 did not send the

samples which he had drawn up at the spot to the concerned

laboratories as directed in the said point no. 3. The record shows that

the Investigating Officer had sent the samples to the concerned

laboratory after one month of the seizure, which indicates that the PW

Page 17 of 25

1 even did not comply with the above direction of the said standing

order in letter and spirit. It is found that no Malkhana register or

godown register as indicated in the said standing order was produced

at the time of trial. No explanation was given in evidence where the

said sample was kept by the concerned IO during one month after the

seizure. If the search and seizure could have taken place during Covid

Pandemic by taking STF personnel from Kolkata, there is no

acceptable reason as to why such samples were not sent for chemical

examination immediately after the seizure.

25. It is true that by point no. 2.2 of the standing order of 1/89

dated 13

th

June, 1989 the Seizing Officer was entitled to draw samples

from the narcotic drugs and psychotropic substances seized on the

spot of recovery in presence of search witnesses and the person from

whose possession the drug is recovered. But if we peruse the

judgments of Mohanlal (supra) and Ajijul (supra) we shall find that

the Hon’ble Courts have deprecated such practice as the same was

not within the scheme of the Act. Kashif’s judgment has pointed out

that drawing of representative samples is only for the purpose of

disposal of the seized narcotics. But the Court’s attention was not

drawn to one essential fact that if the same is only for disposal, then

where such representative samples were to be kept after certification.

The Act is silent on this point. Therefore, the representative samples

are drawn for chemical analysis and that has to be sent to the

Page 18 of 25

laboratory. The confusion was set at rest subsequently. After

emergence of case law reported in Mohanlal (supra) and Kashif

(supra), the Narcotic Drugs and Psychotropic Substances (Seizure,

Storage, Sampling and Disposal) Rules, 2022 have been notified and

by the said notification the standing order 1/89 dated 13

th

June, 1989

alongwith other standing orders were repealed by Rule 29. In sub-rule

(2) of Rule 29, it has been laid down hereunder:

“(2) Notwithstanding such repeal, anything done or any action

taken or purported to have been done or taken under any of

the Standing Order or notification repealed by sub-rule (1)

shall, in so far as it is not inconsistent with the provisions of

these rules, be deemed to have been done or taken under the

corresponding provision of these rules.”

26. From the said sub rule (2), it transpires that actions taken

under the standing order no. 1/89 dated 13 June 1989 which are not

inconsistent with the provision of Rules 2022, shall be deemed to have

been taken under the corresponding provisions of Rules 2022. This

saves the action of the I.O or the de facto complainant provided the

same is in tune with the provisions of Rules 2022, but if the said

actions are not in conformity with Rules 2022, the same are not

protected or saved. Now let us examine Rules 2022 to ascertain how

the sampling is required to be done. Rule 8 and Rule 9 of Rules, 2022

deals with the issues as hereunder.

Page 19 of 25

“8. Application to Magistrate. – After the seized material under

the Act is forwarded to the officer-in-charge of the nearest

police station or to the officer empowered under section 53 of

the Act or if it is seized by such an officer himself, he shall

prepare an inventory of such material in Form-4 and apply to

the Magistrate, at the earliest, under sub-section (2) of

section 52A of the Act in Form-5.

9. Samples to be drawn in the presence of Magistrate. – After

application to the Magistrate under sub-section (2) of section

52A of the Act is made, the Investigating Officer shall ensure

that samples of the seized material are drawn in the

presence of the Magistrate and the same is certified by the

magistrate in accordance with the provisions of the said-sub-

section.”

27. Rule 13 of 2022 Rules has dealt with the procedure for

dispatching the samples for testing. The relevant rule is hereunder.

“13. Despatch of sample for testing. – (1) The samples after

being certified by the Magistrate shall be sent directly to any

one of the jurisdictional laboratories of Central Revenue

Control Laboratory, Central Forensic Science Laboratory or

State Forensic Science Laboratory, as the case may be, for

chemical analysis without any delay. (2) The samples of

seized drugs or substances shall be despatched to the

jurisdictional laboratories under the cover of the Test Memo,

which shall be prepared in triplicate, in Form-6. (3) The

original and duplicate of the Test Memo shall be sent to the

jurisdictional laboratory alongwith the samples and the

triplicate shall be retained in the case file of the seizing

officer.”

Page 20 of 25

28. Therefore, the actions taken by the PW 1, the Seizing Officer

and PW 8, the Investigating Officer, are not consistent with the

provision of the Rules 2022 and, therefore, such actions cannot be

protected by availing the standing order no. 1/89 dated 13

th

June,

1989. It appears that PW 1 and the IO even did not comply with the

requirements under the above standing order.

29. It is also true that there may be a mistake on the part of the

Seizing Officer and the IO in view of the fact that on the date of

occurrence the circular No. 1/89 dated 13

th

June, 1989 was not

withdrawn or repealed from the side of the Government. We are alive

to such factual aspect as very rightly pointed out by learned State

Counsel, Mr. Joydeep Biswas. We are also alive to the fact that the

judgments referred to in Bharat Aambale (supra) case has disclosed

that if there was substantial compliance of the relevant provisions

under NDPS Act then such mistakes on the part of the Seizing Officer

or the IO should be ignored since the prosecution could have proved

its case by the strength of other materials on record.

30. The learned Trial Judge has time and again discussed that the

prosecution has been able to prove that the contraband articles were

recovered from the possession of the aforesaid convicts and others.

But it is unfortunate that although there were two independent

witnesses to the alleged search and seizure, one of the witnesses did

not turn up and another witness was declared hostile. Therefore,

Page 21 of 25

search and seizure was not proved on the strength of evidence of

independent witnesses. It is true that independent witnesses may not

support the prosecution case due to several reasons and that has

been rightly appreciated by the learned trial judge. But it is

unfortunate that time and again Hon’ble Courts are directing the

concerned Seizing Officers to make videography of the process of

search and seizure but it appears that the said officers are not

complying with the said direction for reasons best known to them.

Astonishingly, although the STF and other officials carry several

equipment including testing kits, measurement kits etc. but they are

not taking any instrument for making videography of the proposed

search and seizure. Needless to mention, today, in all probability, all

the officers have smart phones and they could have videographed the

entire process of the search and seizure or taken photographs of the

said process from their phone, but it appears that they did not make

any videography in spite of specific direction from the Hon’ble Courts

including this Court. In this regard the judgment of Kalu Sk. v. State

of W.B., reported in 2022 SCC OnLine Cal 4556 is very much

relevant.

31. Without complying with the said direction the prosecution is

relying upon witnesses who were part and parcel of the raiding party.

These three witnesses are Sayantan Banerjee, Biswanath Dey and

Sandipan Sinha Mahapatra. There is no reason assigned as to why

Page 22 of 25

the independent witness Chandan Das was not produced. As he was a

vital witness coercive measures could have been adopted. The record

does not show that such action was taken. Most interestingly, PW 6

Madhusudan Pal, another independent witness, was a scribe who

used to work outside of the Nakasipara Police Station. If that be so,

why was he adduced as the prosecution witness? If he used to work in

the adjacent place of Nakasipara P.S., in all probability, he should

have supported the prosecution case since he is better protected than

any other independent witness. This Court has serious doubts about

the presence of PW 6 at the place of occurrence at the relevant point of

time since he has stated that as per instruction of Police he signed on

the documents and he was not interrogated by the IO. Therefore, from

the above discussion it appears that the prosecution could have made

videography of the seizure process and could have also proved the

case with the help of the independent witnesses but the materials on

record show that the prosecution has failed to produce any

videography of the seizure process in terms of the decision of Kalu Sk

(supra) and has further failed to obtain support from the independent

witness in proving the prosecution case. In fine we are constrained to

say that we are not inclined to rely upon the witnesses who were

members of the raiding party.

32. In view of the aforesaid discussion we find that the prosecution

has failed to prove that there was substantial compliance of Section

Page 23 of 25

52A of NDPS and and also Rule 29 Sub rule (2) of Narcotic Drugs and

Psychotropic Substances (Seizure, Storage, Sampling and Disposal)

Rules, 2022. The prosecution has further failed to prove the case by

strength of independent witnesses. The drawing of samples, storage

are not in accordance with relevant rules. Inventory was done in

respect of 549 kgs. of narcotics whereas contraband items were seized

to the tune of 525 kgs. The observation that the moisture may

enhance the weight of contraband articles was not supported by any

evidence nor the same was deposed by any witness. If that be so, then

the storage of such contraband articles will be questionable. Moreover,

we would like to say that when foundational facts concerning non -

compliance of requisite conditions under the Act were duly brought on

record from the side of the defence by way of cross-examination of

PWs, it was the duty of the prosecution to show that the allegations

are proved by other materials on record. Hence, section 54 of the Act

is no help for the prosecution in such a scenario. At this stage we may

recall the para 50 (VIII), (IX) & (X) of Bharat Aambale’s case (supra)

even at the cost of repetition:

“50………………………………………………………………………

…………………………………………………………………………….

(VIII) Where there has been lapse on the part of the police in

either following the procedure laid down in Section 52A of

the NDPS Act or the prosecution in proving the same, it will

not be appropriate for the court to resort to the statutory

presumption of commission of an offence from the possession

Page 24 of 25

of illicit material under Section 54 of the NDPS Act, unless

the court is otherwise satisfied as regards the seizure or

recovery of such material from the accused persons from the

other material on record.

(IX) The initial burden will lie on the accused to first lay the

foundational facts to show that there was non-compliance

of Section 52A, either by leading evidence of its own or by

relying upon the evidence of the prosecution, and the

standard required would only be preponderance of

probabilities.

(X) Once the foundational facts laid indicate non-compliance

of Section 52A of the NDPS Act, the onus would thereafter be

on the prosecution to prove by cogent evidence that either (i)

there was substantial compliance with the mandate

of Section 52A of the NDPS Act OR (ii) satisfy the court that

such non-compliance does not affect its case against the

accused, and the standard of proof required would be

beyond a reasonable doubt.”

33. In the case in hand the search, seizure and possession of

contraband was not proved by producing independent witnesses and

also by the requisite videography which could have been done very

easily from the side of the Seizing Officer. Therefore, we are

constrained to hold that the prosecution has failed to prove the

conditions to raise the statutory presumption under Section 54 of the

Act, and hence the convicts are entitled to an order of acquittal.

34. Accordingly, the convicts namely Samir Das @ Buro,

Jahiruddin Sk., Gopal Das and Bijoy Biswas being found not guilty

Page 25 of 25

are acquitted from the charges under Section 20(b)(ii)(c)/29 of the

NDPS Act and they be set at liberty at once.

35. The impugned judgment and order dated July 19

th

, 2024 in

NDPS case no. 50 of 2021 in connection with Nakashipara P.S. case

no. 235 of 2021 under Section 20(b)(ii)(c)/29 of the NDPS Act, the

learned Judge, Special Court, NDPS Act, Nadia at Krishnagar is

hereby set aside. The accused be released at once if not wanted in any

other case.

36. CRA (DB) 217 of 2024 with CRAN 1 of 2025, CRA (DB) 234

of 2024, CRA (DB) 253 of 2024 with connected applications, if any,

stand disposed of.

37. The Trial Court Record be sent down immediately.

38. Urgent photostat certified copies of this judgment, if applied for,

be supplied to the parties on compliance of all necessary formalities.

I Agree.

(ARIJIT BANERJEE, J.) (APURBA SINHA RAY, J.)