The Calcutta High Court suspended an NDPS conviction, stressing the fundamental duty of raiding officers to correctly classify and separately preserve seized contraband, noting serious procedural lapses. A Division Bench of Justices Apurba Sinha Ray and Arijit Banerjee heard.
KOLKATA: The Calcutta High Court has suspended a conviction under the NDPS Act, emphasizing the fundamental duty of the Raiding Officers to properly classify and separate seized contraband items.
The Division Bench, consisting of Justice Apurba Sinha Ray and Justice Arijit Banerjee heard the appeal filed by two appellants seeking to suspend their conviction sentence imposed by the Special Court in an NDPS case.
The bench stated,
“The Magistrate did not report that she saw 80 packets in two big nylon sacks. There is no material to show when and how the said 80 packets were mixed up and who ordered for such mixture. This goes against basic duties of the Raiding Officers/Officers making inventory to classify and make separate arrangements for seized contraband items. The Law does not allow the seizing or the Officer making inventory to mix up the seized contrabands. It appears that 80 packets of contraband articles were not produced and instead of said packets only two nylon sacks were produced, one of which contained 45.657 Kgs. and another contained 35.656 Kgs., totaling 81.313 Kgs.”
Background of the Case
A total of 81.303 kgs of ganja was recovered from a vehicle carrying the accused. The search and seizure were documented via video and conducted in the presence of a Gazetted Officer. The report confirmed the presence of contraband substances, and a certification under Section 52-A of the NDPS Act was issued by the Judicial Magistrate. The tower location of the first appellant indicated that he was arriving from Odisha.
Arguments of the Parties:
Appellant: The appellants challenged the conviction primarily on the ground of non-compliance with mandatory procedural safeguards under the NDPS Act. It was argued that:
Section 50 of the NDPS Act was violated as the appellants were not properly informed of their right to be searched before a Magistrate or Gazetted Officer, relying on State of Punjab v. Baldev Singh (1999) 6 SCC 172 and Sk. Raju @ Abdul Haque v. State of West Bengal (2018) 9 SCC 708.
Standing Order No. 1/89 governing seizure and sampling was breached since 80 packets were mixed together, only one sample was tested, and individual labelling was not done.
The Gazetted Officer allegedly present during the search was not examined, weakening the prosecution version and the Judicial Magistrate who issued certification under Section 52-A NDPS Act was also not examined. Inclusion of seeds, stalks, and leaves excluded under Section 2(iii)(b) artificially inflated the quantity to show commercial quantity, contrary to law. Arrest memos were not proved, and independent witnesses turned hostile.
Statements made to police officers could not be relied upon in view of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1.
State: The State opposed the prayer, contending that:
The recovery was from a vehicle, not from the personal search of the accused, rendering Section 50 inapplicable, as held in State of Punjab v. Baljinder Singh (2019) 10 SCC 473.
They argued that the search was conducted in the presence of a Gazetted Officer and videographed, Independent witnesses admitted their signatures despite turning hostile, the trial court had comprehensively addressed all defence objections. And given the commercial quantity, the statutory bar under Section 37 NDPS Act strictly applied.
Observations of the Court
The Court noted that although 80 packets were allegedly seized during the raid, the Magistrate’s inventory reflected only two nylon sacks, with no explanation as to when, how, or under whose authority the packets were mixed. Such conduct was found to be contrary to statutory obligations and Standing Order No. 1/89, which mandates strict segregation, labelling, and sampling.
Relying on State of Punjab v. Balbir Singh (1994) 3 SCC 299 and Dadu @ Tulsidas v. State of Maharashtra (2000) 8 SCC 437, the Court reiterated that procedural safeguards under the NDPS Act are not mere formalities but substantive protections, especially in cases involving stringent punishment.
The Bench further observed that despite claims of search being conducted in the presence of a Gazetted Officer, neither the officer nor the Magistrate certifying the inventory was examined, creating serious gaps in the prosecution narrative. This omission weakened the evidentiary chain and raised doubts regarding compliance with statutory safeguards.
The Court also took note of the principles laid down in State of Rajasthan v. Parmanand (2014) 5 SCC 345 and Dilip v. State of M.P. (2007) 1 SCC 450, emphasising that once procedural violations are shown, courts must exercise caution before continuing incarceration.
In view of these infirmities, the Court held that the appellants had successfully made out an arguable case, sufficient to dilute the rigours of Section 37 NDPS Act at the stage of suspension of sentence.
The court ruled,
“It is also found from the record that the Judicial Magistrate who issued the certificate under Section 52-A was not made a witness for reasons best known to the IO. It is also found from the record that the Gazetted Officer, Avijit Biswas, was not produced during the trial. Therefore, as the prosecution is unable to show that the said 80 packets seized by them during the raid were properly classified, weighed, and sampled, and as the said drugs appear to have been mixed up without the order of the competent authority, we find that the appellants have been able to make out an arguable case in their favor,”
Consequently, the Bench suspended the conviction sentence and the associated fine until further notice.
Appellant: Advocate Abu Zar Ali
State: Additional Public Prosecutor Anasuya Sinha, Advocates Ranadeb Sengupta, Karan Bapuli
Case Title: Nishikanta Hawladar & Soumen Mondal v. The State of West Bengal (Case No.:CRA (DB) 280 OF 2025)
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