SLP Uttam Dev Barma

IN THE HON’BLE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. _____ OF 2022
(Against the impugned judgment and final order dated 09.11.2022 passed by
Hon’ble High Court of Calcutta, in Circuit Bench at Jalpaiguri in C.R.M.
(NDPS) No. 315 of 2022)
(WITH PRAYER FOR INTERIM RELIEF)
IN THE MATTER OF:
UTTAM DEV BARMA …PETITIONER
VERSUS
STATE OF WEST BENGAL …RESPONDENT
WITH
I.A. NO._______ OF 2022
AN APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPY
OF IMPUGNED ORDER
PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)
ADVOCATE FOR PETITIONER: ANKITA CHAUDHARY

INDEX
S.No. Page of part to which it Remarks
belongs
Part I Part II
(Contents (Contents
of Paper of File
Book Alone)
(i) (ii) (iii) (iv) (v)
1. O/R on Limitation A A
2. Listing Proforma A1-A2 A1-A2
3. Cover Page of Paper A-3
Book
4. Index of Record of A-4
Proceedings
5. Limitation Report A-5
Prepared by the Registry
6. Defect List A-6

7. Note Sheet NS1-to
8. Synopsis and List of B-
Dates
9. IMPUGNED ORDER
True copy of impugned
judgment and final order
dated 09.11.2022 passed
by Hon’ble High Court
of Calcutta in Circuit
Bench at Jalpaiguri in
C.R.M (NDPS) No.
315/2022.
10. Special Leave Petition
with Affidavit
11. Annexure P- 1
True Typed Copy of
Complaint dated
13.09.2018 by P.S New
Jalpaiguri
12. Annexure P-2
True Typed Copy of FIR
No. 655/2018 dated
13.09.2018 u/s 20(b)(ii)
(c) and 23(c) of NDPS
Act, 1985 registered at
P.S New Jalpaiguri
13. Annexure P-3
True Typed Copy of
Seizure List dated
13.09.2018 in FIR No.
655/2018
14. Annexure P-4
True Typed Copy of
memo of arrest dated
13.09.2018
15. Annexure P-5
True Typed Copy of
CFSL report dated
11.02.2019
16. Annexure P-6
True Typed Copy of
Order dated 25.02.2019
passed by the Ld.
Special Judge (NDPS
Act), Jalpaiguri in NDPS
Case No. 35/2018
17. Annexure P-7
True Typed Copy of
Chargesheet u/s 20(b)(ii)
(C)/23 of the NDPS Act,
1985 arising out of FIR
No. 655/2018 dated
13.09.2018
18. Annexure P-8
True Typed Copy of
by the Ld. Special Judge
(NDPS Act), Jalpaiguri
in NDPS Case No.
35/2018
19. Annexure P-9
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
20. Annexure P-10
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
21. Annexure P-11
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018

22. Annexure P-12
True Typed Copy of
Charge with One Head
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
23. Annexure P-13
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
24. Annexure P-14
True Typed Copy of
passed by the Ld.
Special Judge (NDPS

Case No. 35/2018
25. Annexure P-15
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
26. Annexure P-16
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
27. Annexure P-17
True Typed Copy of the
examination-in-chief of
PW-1 dated 12.03.2020
before the Ld. Special

Judge (NDPS Act),
Jalpaiguri in NDPS Case
No. 35/2018
28. Annexure P-18
True Typed Copy of the
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
29. Annexure P-19
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
30. Annexure P-20
True Typed Copy of

passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
31. Annexure P-21
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
32. Annexure P-22
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
33. Annexure P-23
True Typed Copy of

passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
34. Annexure P-24
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
35. Annexure P-25
True copy of order dated
07.10.2021 passed by
this Hon’ble Court in
Tapan Das v. Union of
India SLP(Crl.) No.
5617/2021
36. Annexure P-26

True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
37. Annexure P-27
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
38. Annexure P-28
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018

39. Annexure P-29
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
40. Annexure P-30
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
41. Annexure P-31
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018

42. Annexure P-32
True copy of order dated
22.08.2022 passed by
this Hon’ble Court in
Md. Raja v. State of
West Bengal in Crl.
Appeal No. 1293/2022
43. Annexure P-33
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018
44. Annexure P-34
True Typed Copy of
passed by the Ld.
Special Judge (NDPS
Case No. 35/2018

45. An Application seeking
exemption from filing
Certified copy of the
impugned order.
46. F/M
47. Vakalatnama
IN THE MATTER OF:
VERSUS
OFFICE REPORT ON LIMITATION

1. The Petition is/are within time.
2. The Petition is barred by the time and there is delay of nil days in filing
the same against the impugned judgment and final order dated 09.11.2022
and application for condonation of nil days delay has been filed.
3. There is delay of ____ days in refiling the petition and petition for
condonation of ______ day’s delay in refiling has been filed.
BRANCH OFFICER
New Delhi
RECORD OF PROCEEDINGS
S. No. Date of Record of Proceedings Page No.

SYNOPSIS
The Petitioner has preferred the present Special Leave Petition under
Article 136 of the Constitution of India impugning order dated 09.11.2022
passed by the Hon’ble High Court of Calcutta, in the Circuit Bench at Jalpaiguri
in CRM (NDPS) No. 315/2022 whereby the Hon’ble High Court was pleased to
dismiss the application for bail u/s 439 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘CrPC’) filed by the Petitioner arising out of FIR No.
655/2018 dated 13.09.2018 registered at PS New Jalpaiguri u/s
20(b)(ii)(C)/23(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as ‘NDPS Act’).

The Hon’ble High Court ought to have appreciated that the Petitioner is
languishing in custody for more than 4 years and 3 months and the trial is at the
stage of examination-in-chief of PW-1, as more than 19 adjournments have been
sought either due to absence of PW-1(Complainant) or at behest of the State.
The Petitioner has approached this Hon’ble Court on inter-alia the
following grounds:
(i) Submissions qua unwarranted delay in trial, lackadaisical manner of
granting adjournments by Ld. Trial Court and consequential
infringement of personal liberty of the Petitioner enshrined under
Article 21 of the Constitution of India. This Hon’ble Court in the case
of Tapan Das v. Union of India., SLP (Crl) No. 5617/2021 vide order
dated 07.10.2021 granted bail to an undertrial under NDPS Act having
undergone around 4 years with no likelihood of completion of trial in
the near future (Annexure P-25 Pg. ). Moreover, this Hon’ble Court
in case of Md. Raja v. State of West Bengal., Crl. Appeal No.
1293/2022 enlarged the accused on bail upon 4 years of incarceration
under NDPS Act since the trial had not moved an inch in 2 years
(Annexure P-32 Pg. ). Moreover, this Hon’ble Court in Gopal
Krishna Patra v. Union of India., Crl. Appeal No. 1169/2022 granted
bail under NDPS Act in a matter of commercial quantity upon
competition of 1.5 years of custody. Similarly, this Hon’ble Court has
granted bail upon competition of 1.5 years of incarceration in a spate

of cases (Chitta Biswas v. State of West Bengal., Crl. Appeal
No.245/2022 and Shariful Islam v. State of West Bengal., SLP (Crl.)
No. 4173/2022; Mohammad Salman Hanif Shaikh v. State of
Gujarat., SLP (Crl.) No.5530/2022). Moreover, the Hon’ble High
Court of Punjab & Haryana at Chandigarh in Sumit Khatri v. State of
Punjab., CRM-M-43687/2022 granted bail to the accused upon
competition of custody of more than 2 years 1 month as State had
taken 18 adjournments holding that the same goes to show that the
Petitioner is falsely implicated.
(ii) The Hon’ble High Court failed to appreciate that in terms of Section
50 of NDPS Act, it is mandatory that the accused person be searched
and seizure be carried out before a Gazetted Officer and the same
cannot be dispensed with. This Hon’ble Court in State of Punjab v.
Balbir Singh., (1994) 3 SCC 299 and non-compliance thereof vitiates
the trial.
(iii) Essential ingredients of section 23(c) NDPS Act, 1985 not made out.
As per the FIR and chargesheet, the Petitioner is alleged to have
committed an offence u/s 23(c) of the NDPS Act, which punishes
import/export/transshipment of narcotics and psychotropic substances,
however the complaint, FIR, disclosure statements, chargesheet fail to
even prima-facie allege or disclose the commission of the same by

Petitioner. It has been held by this Hon’ble Court in Union of India v.
Sheo Shambhu Giri., (2014) 12 SCC 692 held as under:
“6. Section 23 of the NDPS Act creates three offences (i) import
into India, (ii) export out of India; (iii) transshipment of any
narcotic drug or psychotropic substance. It has been held by the
Apex Court on the construction of Section 23 of the NDPS Act, the
expression ‘transshipment’ occurring therein must necessarily be
understood in the context of the scheme of the section and the
preceding expressions of ‘import into India’ and ‘export from
India’ to mean only transshipment for the purpose of either import
into India or export out of India.”
Moreover, in Umar Abdul Sakoor Sorathia v. Intelligence Officer,
Narcotic Control Bureau, (2000) 1 SCC 138 it was observed that it is
for the prosecution to prove the import/export/transshipment of the
contraband and the investigation should reveal the names of the
persons involved in the import and export end. The chargesheet and
FIR in the present case are silent on any import/export.
(iv) Tainted Sample, broken chain of custody of Sample, and non-
compliance of Standing Instructions 1/88 issued by the NCB and
Order No. 1/89 passed by the Department of Revenue Intelligence.
Furthermore, as per the contents of the FIR and chargesheet, the
alleged contraband was not sampled on spot and no whisper of
forwarding the same to CFSL within 72 hours from seizure and

recovery, which contravenes Standing Instructions 1/88 and 1/89
issued by the Narcotics Control Bureau (NCB) and Department of
Revenue Intelligence respectively, which have been held to be a
‘requirement of law’ as per the dictum of this Hon’ble Court in Union
of India v. Balmukund Rai.,(2008) 12 SCC 161 (Coram 3JJ). The
manner of drawing a sample of narcotics has been laid down in
Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control
Bureau. The relevant paras of the Standing Order are reproduced as
under:
"1.5 Place and time of drawal of sample. - Samples from the

Narcotic Drugs and Psychotropic Substances seized, must be
drawn on the spot of recovery, in duplicate, in the presence of
search (Panch) witnesses and the person from whose possession
the drug is recovered, and mention to this effect should invariably
be made in the panchnama drawn on the spot.
This Hon’ble Court in Noor Aga v. State of Punjab., 2008) 16 SCC 417
held that standing orders are required to be substantially complied with to
ensure that sanctity of physical evidence to remain intact and hence
cannot be flouted. (emphasis supplied). That the Hon’ble High Court of
Rajasthan in Ramchandra v. State of Rajasthan., S.B. Criminal Misc.
Second Bail Application No.3122/2021 held that sample drawn on spot in
terms of Section 55 which are sent for FSL as per the abovementioned
standing instructions and representative samples drawn before the

Magistrate in terms of 52A of NDPS Act for the purpose of primary
evidence in the trial are distinct.
Various Hon’ble High Courts have granted bail for non-compliance of the
abovementioned standing instructions 1/88 and 1/89. (High Court of
Rajasthan in Om Prakash Bishnoi v. Union of India., S.B. Crl.Misc.
No. 7553/2019; Netram v. State of Rajasthan 2014(1) Crl.R.(Raj) 163;
Hon’ble high Court of Allahabad in Gopi v. State of U.P., Crl. Misc.
Bail Application No. 19854/2020; Hon’ble High Court of Punjab &
Haryana at Chandigarh in Jaswinder Singh and Anr. V. State of
Punjab., Law Suit(P&H) 5446; Hon’ble High Court of Delhi in Ram
Bharose v. State (Govt. of NCT of Delhi) Bail Application No.
1623/2021)
(v) Non-compliance of Section 42 of the NDPS Act, 1985 as the Petitioner
was arrested at 8.55pm as per the contents of the arrest memo which is
in stark violation of section 42 of the NDPS Act which allows search
and seizure only between sunrise and sunset. It is only under section
43 of the NDPS Act where seizure and arrest are to be conducted in
public place that the statute has not imposed this embargo.
Furthermore, this Hon’ble Court in the case of Boota Singh v. State of
Haryana., 2021 SCC Online SC 324 held that private vehicle is not
regarded as a public place for the ambit of Section 43 of the NDPS
Act.
(vi) Submissions qua extent of applicability of Section 35 of NDPS Act,
1985 at stage of grant of bail as this Hon’ble Court in the case of Noor
Aga v. State of Punjab & Anr., (2008) 16 SCC 417., held that the
presumption of culpable mental state would operate in trial
proceedings, not during the bail proceedings and only after the
prosecution has presented prima facie evidence the burden would shift.
Hence, this Petition.
LIST OF DATES AND EVENTS
13.09.2018 As per the version of the Respondent it is alleged that @
06:25 PM approx., during Joint Naka Checking duty at
Fulbari near toll plaza by SI Basudeb Guha, SI Ranjit Roy,

SI Bikash Kisku and others stopped Mahindra Bolero white
colour bearing Regd. No. TR 01 AD 1799. It has been
alleged that the car was being driven by Dinesh Kumar
Dhankar (A2) and Uttam Dev Barma (A1/Petitioner) was the
co-passenger, and they were proceeding towards Araria,
Bihar from Tripura. It is further alleged that on searching the
vehicle odor of Ganja was coming and it enough to believe
that the vehicle was carrying drugs. It also alleged that they
did not have the time to get the search warrant in fear of
accused persons escape and run away. Furthermore, it is
alleged that accused persons were given the opportunity to
be searched in front of an Executive Magistrate or Gazette
Officer and consequently table duty officer of the PS New
Jalpaiguri, ASI Jainal Abedin was contacted and was told to
contact Sri Achintya Gupta ACP East II, SPC to supervise
the entire process of search and seizure. After a few minutes,
Malkana Dealing Officer SI Paresh Barman along-with SI
Partha Sarathi of P.S New Jalpaiguri had arrived.
@7:05 PM, Sri Achintya Gupta ACP East II, SPC arrived
and the search and seizure started along-with two local
persons namely Bipal Das and Shyamal Ch Barman taken on
as independent witnesses. It was alleged upon search of the

car, Ganja was recovered inside several modified and
fabricated chambers 23 packets with different weights
totalling to 138.50 kgs was found from the said vehicle. The
procedure was conducted between 07:20PM to 08:45PM.
Consequently, A1 and A2 were arrested at around 08:50PM
and 08:55PM, respectively. During the search, the following
articles were recovered on spot. Thereafter, the Police
officials registered FIR No.655/2018 dated 13.09.2018 u/s
20(b)(ii)(c) and 23(c) of Narcotic Drugs and Psychotropic
Substances Act, 1985 at P.S New Jalpaiguri qua Dinesh
Kumar Dhankar (A1) and Uttam Dev Barma (A2).
True Typed Copy of Complaint dated 13.09.2018 by P.S
New Jalpaiguri is marked and annexed as Annexure P-1 Pg.
True Typed Copy of FIR No.655/2018 dated 13.09.2018 u/s
20(b)(ii)(c) and 23(c) of NDPS Act, 1985 registered at P.S
New Jalpaiguri is marked and annexed as Annexure P-2 Pg.
13.09.2018 @19.20 hrs and 20.45 hrs, seizure memo was prepared by SI
Basudeb Guha in FIR No. 655/2018 dated 13.09.2018
wherein the following articles where allegedly seized:
1. One Bolero vehicle of white colour bearing Reg no –TR
01 AD 1799
2. One insurance certificate of vehicle no TR01AD1799
owner name Mr. Shailen Dev
3. One Pollution certificate of vehicle no TR01AD1799
4. One certification of Regd. no. WB20H0729 in the name
of Purushottam Agarwal.
5. One driving license in the name of Dinesh Kumar
Dhankar.
6. 23 no. of Ganja (cannabis plants) like article tightly
packed with polythin having different weights: A) 30 kg;
B) 28.500 KG; C) 6 kg; D) 6 kg; E) 6 kg; F) 6 kg; G) 4
Kg; H) 3.5 kg; I) 5 kg, J) 4 kg; K) 4 kg; L) 4 kg; M) 4 kg;
N) 3 kg; O) 3 kg; P) 3 kg; Q) 3 kg; R) 3 kg; S) 3 kg, T) 2
kg, U) 2.5 kg; V) 2 kg; W) 3kg; in total weighing 138.500
kg.
True Typed Copy of Seizure List dated 13.09.2018 in FIR
No. 655/2018 is marked and annexed as Annexure P-3 Pg.
13.09.2018 As per the memo of arrest, Petitioner was arrested
@20.55pm in connection with FIR No. 655/2018. True
Typed Copy of memo of arrest dated 13.09.2018 is marked
and annexed as Annexure P-4 Pg.
11.02.2019 CFSL, West Bengal examination result states the material
contained in each of the exhibits marked here as Chem

382/18/1 to Chem 382/18/23 were identified as Cannabis
plant (Ganja). True Typed Copy of CFSL report dated
11.02.2019 is marked and annexed as Annexure P-5 Pg.
25.02.2019 Ld. Special Judge (NDPS Act), Jalpaiguri (hereinafter
referred to as Ld. Trial Court) in NDPS Case No. 35/2018
was pleased to dismiss the bail preferred by the Petitioner
and co-accused. True Typed Copy of Order dated
25.02.2019 passed by the Ld. Special Judge (NDPS Act),
Jalpaiguri in NDPS Case No. 35/2018 is marked and
annexed as Annexure P- 6 Pg.
04.03.2019 Chargesheet No. 138/2019 u/s 20(b)(ii)(c) r/w 23(c) of the
NDPS Act was prepared by the Respondent arising out of
FIR No. 655/2018 dated 13.09.2018 registered at P.S. New
Jalpaiguri qua Petitioner (A1) and co-accused (A2). It is
pertinent from the chargesheet that there are 7 prosecution
witnesses. True Typed Copy of Chargesheet u/s 20(b)(ii)
(C)/23 of the NDPS Act, 1985 arising out of FIR No.
655/2018 dated 13.09.2018 is marked and annexed as
Annexure P-7 Pg.
07.03.2019 Chargesheet No. 138/2019 dated 04.03.2019 arising out of
FIR No.655/2018 dated 13.09.2018 was filed by the

Respondent qua Petitioner and co-accused persons before the
Ld. Trial Court and the Ld. Trial Court took cognizance of
the same and the matter was renotified to 08.03.2019. True
Typed Copy of Order dated 07.03.2019 by the Ld. Special
Judge (NDPS Act), Jalpaiguri in NDPS Case No. 35/2018 is
marked and annexed as Annexure P- 8 Pg.
08.03.2019 Ld. Trial Court in NDPS Case No. 35/2018 was pleased to
dismiss the bail preferred by the Petitioner and co-accused in
light of rigors of Section 37 of the NDPS Act in the absence
of the counsel for the accused persons. The Ld. Trial Court
notes that since the Ld. Counsel for the Accused Persons is
not available, copy could not be supplied. Matter renotified
to 19.03.2019. True Typed Copy of Order dated 08.03.2019
passed by the Ld. Special Judge (NDPS Act), Jalpaiguri in
NDPS Case No. 35/2018 is marked and annexed as
Annexure P- 9 Pg.
light of rigors of Section 37 of the NDPS Act. Moreover, the
supply of documents in terms of Section 207 CrPC was
complied. Matter renotified to 29.03.2019 for framing of
charges. True Typed Copy of Order dated 19.03.2019 passed

by the Ld. Special Judge (NDPS Act), Jalpaiguri in NDPS
Case No. 35/2018 is marked and annexed as Annexure P-
10 Pg.
11.06.2019 Ld. Trial Court in NDPS Case No. 35/2019 framed charges
against the Petitioner and co-accused u/s 20(b)(ii)(C)/23 of
the NDPS Act. Matter was renotified for 25.06.2019 for
evidence of C.S.W. No.1. True Typed Copy of Order dated
True Typed Copy of Charge with One Head Order dated
25.06.2019 NDPS Case No. 35/2018 fixed for production and evidence
of CSW no.1 before the Ld. Trial Court, however, no PW
was present. Matter renotified for 17.08.2019 for production
and evidence of PW-1. True Typed Copy of Order dated

17.08.2019 NDPS Case No. 35/2018 fixed for production and evidence
of CSW no.1 before the Ld. Trial Court, however, no PW
was present. A.R.T message received from SI Basudeb Guha
(PW1) praying for time to appear. Ld. Trial Court rejected
prayer for extension of time to appear and issued warrant
against PW-1 along-with fine for Rs 200. Matter renotified
for 02.11.2019 for production of evidence. True Typed
Copy of Order dated 17.08.2019 passed by the Ld. Special
11.11.2019 Ld. Trial Court in NDPS Case No. 35/2018 renotified the
trial for 13.10.2020 with a direction to comply with Warrant
issued qua PW-1 in Order No. 22 dated 17.08.2019. True
Typed Copy of Order dated 11.11.2019 passed by the Ld.
Special Judge (NDPS Act), Jalpaiguri in NDPS Case No.
35/2018 is marked and annexed as Annexure P- 15 Pg.
13.01.2020 Bail bond filed by the witness SI Basudeb Guha before the
Ld. Trial Court in NDPS Case No. 35/2018 and was
accepted. Matter renotified for 12.03.2020 for production
and evidence, and summons issued to CSW. True Typed

12.03.2020 PW-1, Basudeb Guha in deposition before the Ld. Trial
Court in NDPS Case No. 35/2018 alleged that on 13.09.2018
PW-1 along police party were performing Naka checking
near Fulbari Toll plaza and @18.25 hrs, the officials
detained one white colour Bolero pickup van bearing some
TR number, the vehicle number of which the PW-1 does not
recall. During checking of the vehicle two persons were
found inside the vehicle and could not find any ganja inside
the vehicle but the police officials allegedly smelled odor of
ganja. It was further alleged that on interrogation, the
accused persons confessed having made a modified chamber
inside the vehicle they kept concealed ganja inside the
vehicle and they were carrying ganja inside the vehicle and
were coming from Tripura going to Bihar. I informed duty
officer NJP P.S. ASI Jainal Abedin to inform O.C as well as
Malbabu with request to send a kit box and at that time Mr.
Abedin was further requested to contact ACP Achinta Gupta
to come to the spot. Examination of PW-1 id deferred on
prayer of the prosecution. Fixed for 05.05.2020 for Pw-1
examination in chief, issue summons, accused remanded to

JC. True Typed Copy of the examination-in-chief of PW-1
dated 12.03.2020 before the Ld. Special Judge (NDPS Act),
12.03.2020 PW-1 examined in part and examination deferred on prayer
of the Respondent. Matter renotified for 05.05.2020 for
examination-in-chief of PW-1. True Typed Copy of the
Order dated 12.03.2020 passed by the Ld. Special Judge
(NDPS Act), Jalpaiguri in NDPS Case No. 35/2018 is
light of framing of charges qua Petitioner and co-accused u/s
20(b)(ii)(C)/23 NDPS Act. True Typed Copy of Order dated
05.01.2021 Ld. Trial Court adjourned the matter on account of absence
of PW-1. Matter renotified for 06.02.2021. True Typed Copy
of Order dated 05.01.2021 passed by the Ld. Special Judge

09.07.2021 Ld. Trial Court adjourned by a non-speaking order. Matter
renotified for 16.08.2021. True Typed Copy of Order dated

07.10.2021 This Hon’ble Court in the case of Tapan Das v. Union of
India., SLP (Crl) No. 5617/2021 vide order dated
07.10.2021 granted bail to an undertrial under NDPS Act
having undergone around 4 years with no likelihood of
completion of trial in the near future. True copy of order
dated 07.10.2021 passed by this Hon’ble Court in Tapan Das
v. Union of India SLP(Crl.) No. 5617/2021 is marked and
annexed as Annexure P-25 Pg.
17.12.2021 Ld. Trial Court adjourned by a non-speaking order. Matter
renotified for 25.02.2022. True Typed Copy of Order dated

05.05.2022 Petitioner moved bail application before the Ld. Trial Court.
The Ld. Trial Court rejected the same by a non-speaking
order. True Typed Copy of Order dated 05.05.2022 passed
30 Pg.

22.08.2022 This Hon’ble Court in case of Md. Raja v. State of West
Bengal., Crl. Appeal No. 1293/2022 enlarged the accused on
bail upon 4 years of incarceration under NDPS Act since the
trial had not moved an inch in 2 years. True copy of order
dated 22.08.2022 passed by this Hon’ble Court in Md. Raja
v. State of West Bengal in Crl. Appeal No. 1293/2022 is
marked and annexed as Annexure P-32 Pg.
of PW-1. Matter renotified for 11.11..2022. True Typed
05.09.2022 Petitioner moved bail application before the Ld. Trial Court.
The Ld. Trial Court rejected the same by a non-speaking
order. True Typed Copy of Order dated 05.09.2022 passed
34 Pg.
09.11.2022 The Hon’ble High Court of Calcutta at Jalpaiguri in CRM
(NDPS) Case No. 315/2022 was pleased to dismiss the

application for bail filed by the Petitioner. (IMPUGNED
ORDER)
__.12.2022 Hence, the present special leave petition.

(Against the impugned judgment and final order dated 09.11.2022 passed by
Hon’ble High Court of Calcutta, in Circuit Bench at Jalpaiguri in C.R.M.
(NDPS) No. 315 of 2022)
IN THE MATTER OF:
VERSUS
POSITION OF PARTIES
Before the Ld. Before Hon’ble Before this

Trial Court High Court Hon’ble Court
Uttam Dev Barma
S/o Nipen Debbarma Accused No.1 Petitioner Petitioner
Village Rabicharan
Para,
Dighalia Post Office,
Police Station
Lephunga, District
Mohanpur, West
Tripura.
Presently in Judicial
Custody in Jalpaiguri
Central Correctional
Home, West-Bengal
VERSUS
Before the Ld. Before Hon’ble Before this
Trial Court High Court Hon’ble Court
State of West
Bengal
Prosecution Respondent Respondent
Through Secretary,
Home Department,
Kolkata, West-
Bengal-700001
To,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF
THE SUPREME COURT OF INDIA
AT NEW DELHI
THE HUMBLE PETITION OF
THE ABOVE-NAMED
PETITIONER:
MOST RESPECTFULLY SHOWETH:
1. That the Petitioner has preferred the present Special Leave Petition under
Article 136 of the Constitution of India before this Hon’ble Court against the
impugned judgment and final order dated 09.11.2022 passed by Hon’ble
High Court of Calcutta in Circuit Bench at Jalpaiguri in C.R.M. (NDPS)
315/2022, whereby the Hon’ble High Court dismissed the bail application of
Petitioner u/s 439 of CrPC seeking grant of bail in FIR No. 655/2018 dated
13.09.2018 registered at P.S. New Jalpaiguri without appreciating that
Petitioner has been languishing in custody since 4 years and 3 months, and
the Ld. Trial Court has granted 19 adjournments either due to non-
availability of PW-1 or on account of prayer by the Respondent.
1A. That the affidavit in the present petition has been signed through Pariokar
being brother of the Petitioner.
2. QUESTIONS OF LAW
The following substantial questions of law arise for consideration before this
Hon’ble Court: -
I. Whether the Hon’ble High Court in facts and circumstances of the case,
was oblivious to the fact that continued delay on the part of Prosecution
Witnesses not turning up for the hearing without any justified
explanation for more than 25 times wherein the Hon’ble Trial Court
issued a warrant against PW-1 for not appearing in Court despite of
repeated summoning is in violation of speedy trial of Petitioner herein
would grossly impinge upon the fundamental rights guaranteed to the
Petitioner under Article 19(d) and 21 of the Constitution of India?
II. Whether the Hon’ble High Court in facts and circumstances of the case
ought to have granted bail to Petitioner considering that Petitioner has
suffered incarceration of around 4 years 3 months and this Hon’ble Court
has in catena of decisions such as Tapan Das v. Union of India., SLP
(Crl) No. 5617/2021, Md. Raja v. State of West Bengal., Crl. Appeal
No. 1293/2022, Gopal Krishna Patra v. Union of India., Crl. Appeal

No. 1169/2022; Chitta Biswas v. State of West Bengal., Crl. Appeal
No.245/2022; Shariful Islam v. State of West Bengal., SLP (Crl.) No.
4173/2022; Mohammad Salman Hanif Shaikh v. State of Gujarat.,
SLP (Crl.) No. 5530/2022 and Sumit Khatri v. State of Punjab., CRM-
M-43687/2022, granted bail to similarly placed undertrials under NDPS?
III. Whether the Hon’ble High Court failed to appreciate that in terms of
Section 50 of NDPS Act, it is mandatory that the accused person be
searched and seizure be carried out before a Gazetted Officer and the
same cannot be dispensed with, as held by this Hon’ble Court in State of
Punjab v. Balbir Singh., (1994) 3 SCC 299?
IV. Whether the Hon’ble High Court failed to appreciate that essential
ingredients of section 23(c) NDPS Act, 1985 as reiterated in Union of
India v. Sheo Shambhu Giri., (2014) 12 SCC 692 has not even been
made out and that entirety of the complaint, FIR, disclosure statements,
chargesheet fail to even prima-facie allege or disclose the commission of
the same by Petitioner?
V. Whether the Hon’ble High Court ought to have appreciated that in the
present facts and circumstances, there has been complete non-
compliance of Standing Instruction No. 1/88 issued by the NCB and
Order No. 1/89 passed by the Department of Revenue Intelligence,
which are mandatory requirement of law as per decision of this Hon’ble
Court in Union of India v. Balmukund Rai.,(2008) 12 SCC 161?

VI. Whether the Hon’ble High Court failed to consider that there has been
complete non-compliance of Section 42 of the NDPS Act, 1985 since as
per arrest memo the Petitioner was arrested at 8.55pm from the vehicle
which is in stark violation of section 42 of the NDPS Act which allows
search and seizure only between sunrise and sunset?
3. DECLARATION IN TERMS OF RULE 2(2)
That the Petitioner herein states that no other petition seeking special leave
to appeal has been filed by the Petitioner against the impugned judgment and
final order dated 09.11.2022 passed by Hon’ble High Court of Calcutta in
Circuit Bench at Jalpaiguri in C.R.M. (NDPS) 315/2022.
4. DECLARATION IN TERMS OF RULE 4
That the Annexures P-1 to P-34 produced along with the Special Leave
Petition are the true copies of the pleadings/documents which formed part of
the records of the case before the Hon’ble High Court against whose order
the leave to appeal is sought for in this petition.
5. GROUNDS:
The Petitioner craves the indulgence of this Hon’ble Court to grant Special
leave to Appeal, inter-alia, on the following grounds which are set out
hereinafter without prejudice to one another: -

A. BECAUSE the Petitioner has approached this Hon’ble Court praying for
grant of bail for the following reasons:
(i) Submissions qua unwarranted delay in trial, lackadaisical manner of
granting adjournments by Ld. Trial Court and consequential
infringement of personal liberty of the Petitioner enshrined under
Article 21 of the Constitution of India
(ii) Non-compliance of Section 50 of the NDPS Act, 1985.
(vii) Essential ingredients of section 23(c) NDPS Act, 1985 not made out
(viii) Tainted Sample, broken chain of custody of Samle, and non-
compliance of Standing Instructions 1/88 issued by the NCB and
Order No. 1/89 passed by the Department of Revenue Intelligence
(ix) Non-compliance of Section 42 of the NDPS Act, 1985
(x) Submissions qua extent of applicability of Section 35 and 37 of NDPS
Act, 1985 at stage of grant of bail
SUBMISSIONS QUA UNWARRANTED DELAY IN TRIAL,
LACKADAISICAL MANNER OF GRANTING ADJOURNMENTS BY
LD. TRIAL COURT AND CONSEQUENTIAL INFRINGEMENT OF
PERSONAL LIBERTY OF THE PETITIONER ENSHRINED UNDER
ARTICLE 21 OF THE CONSTITUTION OF INDIA
A. BECAUSE in the present matter, the trial has been pending at the stage of
examination of chief of PW-1 and the PW-1 has not been appearing
before the Ld. Trial Court and none of the adjournments have been taken
on behalf of the Petitioner herein. Moreover, there are 7 Prosecution
witnesses as per the chargesheet and the trial is not likely to be concluded
in the near future. The Ld. Trial Court, while being aware of the same, has
granted 19 adjournments either for non-availability of PW-1 or at the
instance of the Respondent in the trial, thereby resulting in unwarranted
and lackadaisical infringement the personal liberty of the Petitioner
imbibed under Article 21 of the Constitution of India.
B. Moreover, this Hon’ble Court in case of Md. Raja v. State of West
Bengal., Crl. Appeal No. 1293/2022 enlarged the accused on bail upon 4
years of incarceration under NDPS Act since the trial had not moved an
inch in 2 years. Moreover, this Hon’ble Court in Gopal Krishna Patra v.
Union of India., Crl. Appeal No. 1169/2022 granted bail under NDPS Act
in a matter of commercial quantity upon competition of 1.5 years of
custody. Similarly, this Hon’ble Court in granted bail upon competition of
1.5 years in a spate of cases (Chitta Biswas v. State of West Bengal., Crl.
Appeal No.245/2022 and Shariful Islam v. State of West Bengal., SLP
(Crl.) No. 4173/2022; Mohammad Salman Hanif Shaikh v. State of
Gujarat., SLP (Crl.) No.5530/2022). Moreover, the Hon’ble High Court
of Punjab & Haryana at Chandigarh in Sumit Khatri v. State of Punjab.,
CRM-M-43687/2022 granted bail to the accused upon competition of
custody of more than 2 years 1 month as State had taken 18 adjournments

holding that the same goes to show that the Petitioner is falsely
implicated.
C. BECAUSE, in the present case, in the last nearly 4 years, out of 7
prosecution witnesses, the examination-in-chief of PW-1 is underway. A
catena of judgments rendered by this Hon’ble Court and various High
Courts have held that there can be no unending deprivation of liberty
pending trial. This Hon’ble Court in the case of Sanjay Chandra v. CBI.,
(2012) 1 SCC 40 held that the object of bail is to secure the appearance of
the accused at his trial and hence, ‘the object of bail is neither punitive
nor preventive’.
D. BECAUSE, this Hon’ble Court in the case of Tapan Das v. Union of
India., SLP (Crl) No.5617/2021 vide order dated 07.10.2021 granted bail
to an undertrial under NDPS Act having undergone around 4 years with
no likelihood of completion of trial in the near future.
E. BECAUSE, this Hon’ble Court in the case Supreme Court Legal Aid
Committee v. Union of India & Ors., 1994 held that the object of the
legislature to create ‘special courts’ u/s 36(1) of the NDPS Act was with
the intent to facilitate speedy trials. Right to speedy trial is a fundamental
right under Article 21 of the Constitution of India as held by this Hon’ble
Court in the case of Hussainara Khatoon v. Home Secretary, State of
Bihar, 1979 AIR 1369 and AR Antulay v. RS Nayak., 1988 AIR 1531,
“wherein it was held that right to be released on bail is embedded in the

Right of Speedy Trial and if the trial cannot be expedited then bail shall
be granted. The Court held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person ought to suffer adverse
consequences of his acts unless the same is established before a neutral
arbitrator… Once it is obvious that a timely trial would not be possible
and the accused has suffered incarceration for a significant period of
time, the courts would ordinarily be obligated to enlarge them to bail.”
F. BECAUSE moreover, this Hon’ble Court in the case of Achint
Navinbhai Patel v. State of Gujarat and Anr., (2002) 10 SCC 529
observed that ‘it has been repeatedly stressed that NDPS cases should be
tried as early as possible because in such cases normally accused are not
released on bail.’
G. BECAUSE furthermore, this Hon’ble Court has deprecated the practice of
granting adjournments in trials under the NDPS Act in the judgment
rendered by this Hon’ble Court in the matter of Thana Singh v. Central
Bureau of Narcotics, (2013) 2 SCC 593 and held as follows:
“Directions
A. Adjournments
7. The lavishness with which adjournments are granted is not an ailment
exclusive to narcotics trials; courts at every level suffer from this
predicament. The institutonalisation of generous dispensation of
adjournments is exploited to prolong trials for varied considerations.

8. Such a practice deserves complete abolishment. The legislature
enacted a crucial amendment in the form of a fourth proviso to Section
309(2) of the Code of Criminal Procedure, 1973 [through Section 21(b)
of Act 5 of 2009] to tackle the problem, but the same awaits notification.
Once notified, Section 309 will read as follows:
“309. Power to postpone or adjourn proceedings.—(1) In every

inquiry or trial, the proceedings shall be held as expeditiously as
possible, and in particular, when the examination of witnesses has
once begun, the same shall be continued from day to day until all
the witnesses in attendance have been examined, unless the court
finds the adjournment of the same beyond the following day to be
necessary for reasons to be recorded.
(2) If the court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to postpone
the commencement of, or adjourn, any inquiry or trial, it may, from
time to time, for reasons to be recorded, postpone or adjourn the
same on such terms as it thinks fit, for such time as it considers
reasonable, and may by a warrant remand the accused if in
custody:
Provided that no Magistrate shall remand an accused person to
custody under this section for a term exceeding fifteen days at a
time:
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without examining
them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose
only of enabling the accused person to show cause against the
sentence proposed to be imposed on him:
Provided also that—
(a) no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the control of that
party;
(b) the fact that the pleader of a party is engaged in another court,
shall not be a ground for adjournment;
(c) where a witness is present in court but a party or his pleader is
not present or the party or his pleader though present in court, is
not ready to examine or cross-examine the witness, the court may,
if it thinks fit, record the statement of the witness and pass such
orders as it thinks fit dispensing with the examination-in-chief or
cross-examination of the witness, as the case may be.
Explanation 1.—If sufficient evidence has been obtained to raise a
suspicion that the accused may have committed an offence, and it
appears likely that further evidence may be obtained by a remand,
this is a reasonable cause for a remand.
Explanation 2.—The terms on which an adjournment or
postponement may be granted include, in appropriate cases, the
payment of costs by the prosecution or the accused.”(emphasis
supplied)
The fourth proviso deserves immediate notification. In lieu of the
lacuna created by its conspicuous absence, which is interfering
with the fundamental right of speedy trial [see Hussainara
Khatoon (1) v. State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri)
23] ], something this Court is duty-bound to protect and uphold,
and till the statutory provisions are in place, we direct that no
NDPS court would grant adjournments at the request of a party
except where the circumstances are beyond the control of the
party. This exception must be treated as an exception, and must not
be allowed to swallow the generic rule against grant of
adjournments. Further, where the date for hearing has been fixed
as per the convenience of the counsel, no adjournment shall be
granted without exception. Adherence to this principle would go a
long way in cutting short that queue to the doors of justice.
H. BECAUSE personal liberty has been held to be most sacrosanct and in
the scale of Constitutional values. Irrespective of the enormity and gravity
of the offence, courts have intervened to prevent illegalities as personal
liberty of a citizen cannot be allowed to be invaded except in accordance
with the procedure established under law. It has been laid down by the
Hon’ble Supreme Court that courts cannot wink at, or step over, or ignore
the infringement of the most important fundamental right guaranteed
under Article 21 of the Constitution of India. It is a trite law that
deprivation of personal liberty without ensuring speedy trial is not
consistent under Article 21 of the Constitution of India. While,
deprivation of personal liberty for some period may not be available,
period of deprivation pending trial cannot be unduly long.
I. BECAUSE the Ld. Court failed to take into consideration that there is no
specific role attributed to the Petitioner in transportation of the
contraband. The Petitioner has been incarcerated for about 4 years 3
months now with no sight of trial taking place in light of the pandemic
and thereby the fundamental right of Right to Life and Personal Liberty
enshrined under Article 21 of the Constitution of India is getting violated.
The Hon’ble Supreme Court in the case of Sanjay Chandra v. Central
Bureau of Investigation, (2012) 1 SCC 40 while expounding upon the
objective of bail held that; “21. In bail application, generally, it has been
laid down from the earliest times that the object of bail is to secure the
appearance of the accused person at his trial by reasonable amount of
bail. The object of bail is neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it can be required to
ensure that an accused person will stand his trial when called upon.
(emphasis supplied).
J. BECAUSE it is a trial law that deprivation of personal liberty without
ensuring speedy trial is not consistent under Article 21 of the Constitution
of India. While, deprivation of personal liberty for some period may not
be available, period of deprivation pending trial cannot be unduly long.
The Hon’ble Supreme Court in the case of Supreme Court Legal Aid
Committee (Representing undertrial prisoners) v. Union of India.,
(1994) 6 SCC 731 held that persons undertrial for offences punishable
with commercial quantity, shall be released on bail with a bond of Rs 1
Lakh upon competition of 5 years as an undertrial. In the present case, the
Petitioner was arrested on 14.09.2018 and has hence undergone more than
4 years and 3 months.
NON-COMPLIANCE OF SECTION 50 OF THE NDPS ACT, 1985

K. The Hon’ble High Court failed to appreciate that in terms of Section 50 of
NDPS Act, it is mandatory that the accused person be searched and
seizure be carried out before a Gazetted Officer and the same cannot be
dispensed with. This Hon’ble Court in State of Punjab v. Balbir Singh.,
(1994) 3 SCC 299 and non-compliance thereof vitiates the trial. The
relevant extract of State of Punjab v. Balbir Singh is quoted hereunder:
25. The questions considered above arise frequently before the

trial courts. Therefore we find it necessary to set out our
conclusions which are as follows:
(1) If a police officer without any prior information as

contemplated under the provisions of the NDPS Act makes a search
or arrests a person in the normal course of investigation into an
offence or suspected offences as provided under the provisions of
CrPC and when such search is completed at that stage Section 50
of the NDPS Act would not be attracted and the question of
complying with the requirements thereunder would not arise. If
during such search or arrest there is a chance recovery of any
narcotic drug or psychotropic substance then the police officer,
who is not empowered, should inform the empowered officer who
should thereafter proceed in accordance with the provisions of the
NDPS Act. If he happens to be an empowered officer also, then
from that stage onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can

issue warrant for the arrest or for the search in respect of offences
punishable under Chapter IV of the Act etc. when he has reason to
believe that such offences have been committed or such substances
are kept or concealed in any building, conveyance or place. When
such warrant for arrest or for search is issued by a Magistrate who
is not empowered, then such search or arrest if carried out would
be illegal. Likewise only empowered officers or duly authorized
officers as enumerated in Sections 41(2) and 42(1) can act under
the provisions of the NDPS Act. If such arrest or search is made
under the provisions of the NDPS Act by anyone other than such
officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the
authorisation to his subordinate officer to carry out the arrest of a
person or search as mentioned therein. If there is a contravention,
that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior

information given by any person, that should necessarily be taken
down in writing. But if he has reason to believe from personal
knowledge that offences under Chapter IV have been committed or
materials which may furnish evidence of commission of such
offences are concealed in any building etc. he may carry out the
arrest or search without a warrant between sunrise and sunset and
this provision does not mandate that he should record his reasons
of belief. But under the proviso to Section 42(1) if such officer has
to carry out such search between sunset and sunrise, he must
record the grounds of his belief.
To this extent these provisions are mandatory and contravention of

the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down
any information in writing or records the grounds under proviso to
Section 42(1) should forthwith send a copy thereof to his immediate
official superior. If there is total non-compliance of this provision
the same affects the prosecution case. To that extent it is
mandatory. But if there is delay whether it was undue or whether
the same has been explained or not, will be a question of fact in
each case.
(4-A) If a police officer, even if he happens to be an “empowered”

officer while effecting an arrest or search during normal
investigation into offences purely under the provisions of CrPC
fails to strictly comply with the provisions of Sections 100 and 165
CrPC including the requirement to record reasons, such failure
would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under

Section 41(2) of the Act carries out a search, he would be doing so
under the provisions of CrPC namely Sections 100 and 165 CrPC
and if there is no strict compliance with the provisions of CrPC
then such search would not per se be illegal and would not vitiate
the trial.
The effect of such failure has to be borne in mind by the courts

while appreciating the evidence in the facts and circumstances of
each case.
(5) On prior information the empowered officer or authorised

officer while acting under Sections 41(2) or 42 should comply with
the provisions of Section 50 before the search of the person is made
and such person should be informed that if he so requires, he shall
be produced before a Gazetted Officer or a Magistrate as provided
thereunder. It is obligatory on the part of such officer to inform the
person to be searched. Failure to inform the person to be searched
and if such person so requires, failure to take him to the Gazetted
Officer or the Magistrate, would amount to non-compliance of
Section 50 which is mandatory and thus it would affect the
prosecution case and vitiate the trial. After being so informed
whether such person opted for such a course or not would be a
question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps
to be taken by the officers after making arrest or seizure under
Sections 41 to 44 are by themselves not mandatory. If there is non-
compliance or if there are lapses like delay etc. then the same has
to be examined to see whether any prejudice has been caused to the
accused and such failure will have a bearing on the appreciation of
evidence regarding arrest or seizure as well as on merits of the
case.
ESSENTIAL INGRIDIENTS OF SECTION 23(c) NDPS ACT, 1985
NOT MADE OUT
L. BECAUSE as per the FIR and chargesheet, the Petitioner is alleged to
have committed an offence u/s 23(c) of the NDPS Act, which punishes
import/export/transshipment of narcotics and psychotropic substances,
however the complaint, FIR, disclosure statements, chargesheet fail to

even prima-facie allege or disclose the commission of the same by
Petitioner.
M. BECAUSE it has been held by this Hon’ble Court in Union of India v.
Sheo Shambhu Giri., (2014) 12 SCC 692 that Section 23(c) is confined to
export from/import to and transshipment thereof from/to another country
and is distinguishable from mere transportation within the territories of the
country. The relevant extract is as under:
“6. Section 23 of the NDPS Act creates three offences (i) import
into India, (ii) export out of India; (iii) transshipment of any
narcotic drug or psychotropic substance. It has been held by the
Apex Court on the construction of Section 23 of the NDPS Act, the
expression ‘transshipment’ occurring therein must necessarily be
understood in the context of the scheme of the section and the
preceding expressions of ‘import into India’ and ‘export from
India’ to mean only transshipment for the purpose of either import
into India or export out of India.”
N. BECAUSE moreover, in Umar Abdul Sakoor Sorathia v. Intelligence
Officer, Narcotic Control Bureau, (2000) 1 SCC 138 it was observed
that it is for the prosecution to prove the import/export/transshipment of
the contraband and the investigation should reveal the names of the
persons involved in the import and export end. The relevant extract of
Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control
Bureau (supra) is as under:

“7. If the allegations are correct, there is an undeniable position
that a serious offence under Section 23 of the NDPS Act had been
committed in respect of the aforesaid contraband articles. It is for
the prosecution to establish the persons who have committed the
offence. Four persons who were already charge-sheeted are said to
be those engaged at the exporting end. There must have been
human persons at the importing stage and it is for the prosecution
to establish who they were. Investigation revealed the following
facts also: Both the consignor and the consignee are fictitious
concerns and no such company was ever in existence. But the
clearing agency which presented the Bill of Entry on behalf of the
non-existing consignee and which took possession of the
consignment during the offloading operations was a company by
name M/s Miami Travels and Tours Ltd. It was submitted that the
appellant was the Chairman of the clearing agency company.”
TAINTED SAMPLE AND CHAIN OF CUSTODY OF SAMLE BROKEN
AND NON-COMPLIANCE OF STANDING INSTRUCTIONS 1/88
ISSUED BY THE NCB AND ORDER NO. 1/89 PASSED BY THE
DEPARTMENT OF REVENUE INTELLIGENCE
O. BECAUSE furthermore, as per the contents of the FIR and chargesheet,
the alleged contraband was sampled on spot as Exhibit A1 and B1.

However, admittedly as per the version of the State in the impugned order,
the samples drawn on spot were not forwarded for FSL within 72 hours,
which contravenes Standing Instructions 1/88 and 1/89 issued by the
Narcotics Control Bureau (NCB) and Department of Revenue
Intelligence, which have been held to be a ‘requirement of law’ as per the
dictum of this Hon’ble Court in Union of India v. Balmukund Rai.,
(2008) 12 SCC 161 (Coram 3JJ).
P. BECAUSE the Hon’ble High Court ought to have considered that entire
process of sampling is vitiated in light of absence of whisper of on-spot
sampling at the time of seizure and recovery and moreover, the
chargesheet is silent on the date on which the sample is forwarded for
CFSL and the date of compliance u/s 52A of the NDPS Act, 1985. Thus,
tainting the entire chain of custody of the sampling and in contravention
with the standing instructions of NCB and Department of Revenue
Intelligence.
Q. BECAUSE the manner of drawing a sample of narcotics has been laid
down in Standing Order 1/88 dated 15.03.1988 issued by the Narcotics
Control Bureau. The relevant paras of the Standing Order are reproduced
as under :-
"1.5 Place and time of drawal of sample. - Samples from the Narcotic
Drugs and Psychotropic Substances seized, must be drawn on the spot
of recovery, in duplicate, in the presence of search (Panch) witnesses
and the person from whose possession the drug is recovered, and
mention to this effect should invariably be made in the panchnama
drawn on the spot.
1.6 Quantity of different drugs required in the sample - The quantity to be

drawn in each sample for chemical test should be 5 grams in respect of
all narcotic drugs and psychotropic substances except in the cases of
Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each
case is required for chemical test. The same quantities should be taken for
the duplicate sample also. The seized drugs in the packages/containers
should be well mixed to make it homogeneous and representative before
the sample in duplicate is drawn.
1.7 Number of samples to be drawn in each seizure case-
(a) In the case of seizure of single package/container one sample in

duplicate is to be drawn. Normally it is advisable to draw one sample in
duplicate from each package/container in case of seizure of more than
one package/container.
(b) However, when the package/container seized together are of identical

size and weight, bearing identical markings and the contents of each
package give identical results on colour test by U.N. kit, conclusively
indicating that the packages are identical in all respect/the
packages/container may be carefully bunched in lots of 10
packages/containers may be bunched in lots of 40 such packages such
packages/containers. For each such lot of packages/containers, one
sample in duplicate may be drawn.
(c) Where after making such lots, in the case of Hashish and Ganja, less
than 20 packages/containers remains, and in case of other drugs less than
5 packages/containers remain, no bunching would be necessary and no
samples need be drawn.
(d) If it is 5 or more in case of other drugs and substances and 20 or more
in case of Ganja and Hashish, one more sample in duplicate may be
drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a particular lot, it must
be ensured that representative drug in equal quantity is taken from each
package/container of that lot and mixed together to make a composite
whole from which the samples are drawn for that lot.
1.13. Mode and Time Limit for despatch of sample to Laboratory.
The samples should be sent either by insured post or through special

messenger duly authorised for the purpose. Despatch of samples by
registered post or ordinary mail should not be resorted to. Samples must
be despatched to the Laboratory within 72 hours of seizure to avoid any
legal objection…"
R. BECAUSE pari materia with Standing Order 1/88 is the Standing Order
No.1/89 dated 13.06.1989 issued under subsection (1) of Section 52A of
NDPS Act by the Department of Revenue, Ministry of Finance,
Government of India. Section (II) provides for general procedure for
sampling, storage and reads as under:-
"SECTION II- GENERAL PROCEDURE FOR SAMPLING, STORAGE

ETC.
2.1 All drugs shall be properly classified, carefully, weighed and

sampled on the spot of seizure. 2.2 All the packages/containers shall be
serially numbered and kept in lots for sampling. Samples from the
narcotic drugs and psychotropic substances seized, shall be drawn on
the spot of recovery, in duplicate, in the presence of search witness
(Panchas) and the person from whose possession the drug is recovered,
and a mention to this effect should invariably be made in the
panchanama drawn on the spot.
2.3 The quantity to be drawn in each sample for chemical test shall not be
less than 5 grams in respect of all narcotic drugs and psychotropic
substances save in cases of opium, ganja and charas (hasish) where a
quantity of 24 grams in each case is required for chemical test. The same
quantities shall be taken for the duplicate sample also. The seized drugs
in the packages /containers shall be well mixed to make it homogeneous
and representative before the sample (in duplicate) is drawn.
2.4 In the case of Seizure of a single package/container, one sample (in

duplicate) shall be drawn. Normally, it is advisable to draw one sample
(in duplicate) from each package/container in case of seizure of more
than one package/container.
2.5 However, when the packages/containers seized together are of

identical size and weight, bearing identical markings and the content of
each package given identical results on color test by the drug
identification kit, conclusively indicating that the packages are identical
in all respects, the packages/containers may be carefully bunched in lots
of 10 packages/ containers/ except in the case of ganja and hashish
(charas), where it may be bunched in lots of 40 such packages/containers.
For each such lot of packages/containers, one sample (in duplicate) may
be drawn.
2.6 Whereafter making such lots, in the case of hashish and ganja, less
than 20 packages/containers remain, and in the case of other drugs, less
than 5 packages/containers remain, no bunching will be necessary and no
sample need to be drawn. 2.7 If such remainders are more in the case of
other drugs and substances and 20 or more in the case of ganja and
hashish, one more sample (in duplicate) may be drawn for such a
reminder package /container.
2.8 While drawing one sample (in duplicate) from a particular lot, it must
be ensured that representative sample are in equal quantity is taken from
a package/container of that lot and mixed together to make a composite
whole from which the samples are drawn for that lot.
2.9 The sample in duplicate should be kept in heat sealed plastic bags as
it is convenient and safe. The plastic bag container should be kept in a
paper envelope which may be sealed properly. Such sealed envelope may
be marked as original and duplicate. Both the envelopes should bear the
S.No. of the package(s)/ containers from which the sample has been
drawn. The duplicate envelope containing the sample will also have a
reference of the test memo. The seals should be legible. This envelope
which should also be sealed and marked „secret-drug sample/ Test
memo‟ is to be sent to the chemical laboratory concerned.
3.0 The Seizing officers of the Central Government Departments, viz.,

Customs. Central Excise, Central Bureau of Narcotics, Narcotics Control
Bureau, Directorate of Revenue Intelligence etc. should dispatch samples
of the seized drugs to one of the Laboratories of the Central Revenues
Control Laboratory nearest to their office depending upon the availability
of test facilities. The other Central Agencies like BSF, CBI and other
Central Police Organizations may send such sample to the Director,
Central Forensic Laboratory, New Delhi. All State Enforcement Agencies
may send samples of seized drugs to the Director/Deputy
Director/Assistant Director of their respective State Forensic Science
Laboratory.
3.1 After sampling, detailed inventory of such packages /containers shall
be prepared for being enclosed to the panchanama. Original wrappers
shall also be preserved for evidentiary purposes."
S. BECAUSE thus, from the above standing orders, it is evident that
samples to be forwarded for testing/chemical analysis/FSL are required to
be drawn on spot following the procedure mentioned above. It has further
been held by this Hon’ble Court in the case of Union of India v.
Balmukund Rai., (2008) 12 SCC 161 (Coram 3JJ)that Standing
Instructions 1/88 are a requirement of law. Furthermore, this Hon’ble
Court in Noor Aga v. State of Punjab., 2008) 16 SCC 417 standing
orders are required to be substantially complied with to ensure that
sanctity of physical evidence to remain intact and hence cannot be flouted.
(emphasis supplied).
T. BECAUSE furthermore, this Hon’ble Court while rendering the judgment
in Union of India v. Mohanlal., (2016) 3 SCC 379 (Coram 2JJ) did not
consider the distinction between sample drawn on spot for purpose of
forwarding the same for FSL and representative sample drawn in front of
the Magistrate for the purpose of primary evidence in trial and appears to
have considered them the same. However, this Hon’ble Court quoted the
Gazette Notification dated 16.01.2015 issued by the Ministry of Finance
is clears in terms that an application for drawing of representative sample

before the Magistrate in terms of Section 52A NDPS Act is instituted only
after the FSL report is obtained:
“Disposal of Drugs:
17. Section 52A as amended provides for disposal of the seized

contraband in the manner stipulated by the Government under Clause 1
of that Section. Notification dated 16th January, 2015 has, in
supersession of the earlier notification dated 10th May, 2007 not only
stipulates that all drugs and psychotropic substances have to be disposed
off but also identifies the officers who shall initiate action for disposal
and the procedure to be followed for such disposal. Para 4 of the
Notification inter alia, provides that officer-in-charge of the Police
Station shall within 30 days from the date of receipt of chemical analysis
report of drugs, psychotropic substances or controlled substances apply
to any Magistrate under Section 52A(2) in terms of Annexure 2 to the
said Notification.
18. Sub-para (2) of Para (4) provides that after the Magistrate allows the
application under sub-section (3) of Section 52A, the officer mentioned in
sub para (1) of Para (4) shall preserve the certified inventory,
photographs and samples drawn in the presence of the Magistrate as
primary evidence for the case and submit details of seized items to the
Chairman of the Drugs Disposal committee for a decision by the
Committee on the question of disposal. The officer shall also send a copy
of the details along with the items seized to the officer in-charge of the
godown. Para (5) of the notification provides for constitution of the Drugs
Disposal while para (6) specifies the functions which the Committee shall
perform. In para (7) the notification provides for procedure to be
followed with regard to disposal of the seized items, while para (8)
stipulates the quantity or the value upto which the Drugs Disposal
Committee can order disposal of the seized items. In terms of proviso to
para (8) if the consignments are larger in quantity or of higher value than
those indicated in the table, the Drugs Disposal Committee is required to
send its recommendations to the head of the department who shall then
order their disposal by a high level Drugs Disposal Committee specially
constituted for that purpose. Para (9) prescribes the mode of disposal of
the drugs, while para (10) requires the Committee to intimate to the head
of the Department the programme of destruction and vest the head of the
Department with the power to conduct a surprise check or depute an
officer to conduct such checks on destruction operation. Para (11) deals
with certificate of destruction while paras (12) and (13) deal with details
of sale to be entered into the godown register and communication to be
sent to Narcotic Control Bureau.”
U. That the Hon’ble High Court of Rajasthan in Ramchandra v. State of
Rajasthan., S.B. Criminal Misc. Second Bail Application No.3122/2021
held that sample drawn in terms of Section 55 and representative samples
drawn in terms of 52A of NDPS Act are distinct and the said was not
considered by this Hon’ble Court in Union of India v. Mohanlal (supra).
The relevant paras of Ramchandra v. State of Rajasthan (supra) are quoted
as under:
“In so far as contention of the learned counsel for the petitioner

regarding investigation suffering from the vice of illegality for want of
compliance of mandatory provisions contained under Section 52A of the
Act of 1985 as well of direction issued in the case of Mohan Lal's case
(supra), is concerned, on examination of the scheme of the Act in the
backdrop of judgement of the Hon'ble Apex Court of India and as
interpreted by the various High Courts, the situation emerges as under:
Section 52A was incorporated by the Amendment Act 2 of 1989 having

regard to the hazardous nature of any narcotic drugs and psychotropic
substances, their vulnerability to theft, substitution, constraint of proper
storage space or any other relevant consideration. It authorizes the
Central Government to determine the manner of disposal of the
contraband by specifying the manner through notification in the official
Gazette.
Section 52A of the Act fundamentally speaks of disposal of seized

contraband so that it does not get pilfered, misused or recycled into the
society for abuse. It is a method given out basically to address the issue of
safe up-keeping of the drugs at pre-trial (investigation) and/or trial stage.
In the wake of trial taking long time, heavy haul of contraband seized
lying at the Police Stations/Government Offices has potentiality to create
an adverse situation and to meet this mischief, the methodology has been
coined under Section 52A of the Act. A forensic view of Section 52 of the
Act further sheds light on the issue. Section 52 gives out two modes of
disposal of articles seized from the person arrested. A person arrested
and article seized under warrant issued by a Magistrate under Section 41
(1), shall be required to be forwarded without unnecessary delay to the
Magistrate, by whom the warrant was issued. In all other cases, the
person arrested and the article seized is to be forwarded without
unnecessary delay to the officer in-charge of the nearest Police Station or
the officer empowered under Section 53 of the Act. Therefore, it is more
than apparent that only such articles seized are required to be forwarded
without unnecessary delay to a Magistrate which are seized in pursuance
of a warrant issued by him under Section 41 (1). Had the legislature
intended that every article seized should immediately be forwarded to the
Magistrate, then, the same would have been incorporated in the above
provisions in explicit terms. The rule of interpretation namely, casus
omissus provides that what has been omitted in the Statute or in other
words, basically a situation not supported under the Statute, cannot be
supplied by a court of law by construing the same in the name of
interpreting the Statute. If in the name of interpretation of a Statute, the
court of law supplies something which is not otherwise stated in the
Statute by the Legislature, then it would amount to legislating by the
Court in the name of interpretation. In view thereof, Section 52(2) of the
Act clearly reveals that the articles seized by the empowered officers
under Section 41(2), 42, 43 and 44 of the Act as per personal knowledge
or information received by such officer, are not required to be forwarded
to the Magistrate and provisions of Section 52A operate in entirely
independent and different scenario i.e. pertaining to safe up keeping of
the contraband during the pre-trial and/or trial stage for its disposal. In
the case of Chief Information Commissioner (supra), the Hon'ble Apex
Court of India held as under:
"40. It is well known that when a procedure is laid down statutorily and
there is no challenge to the said statutory procedure the Court should not,
in the name of interpretation, lay down a procedure which is contrary to
the express statutory provision. It is a time-honoured principle as early as
from the decision in Taylor v. Taylor [(1875) 1 Ch. D. 426 (CA)] that
where statute provides for something to be done in a particular manner it
can be done in that manner alone and all other modes of performance are
necessarily forbidden."
Further, Section 52A (2)(c) speaks of "allowing to draw representative

samples of such drugs or substances, in the presence such Magistrate."
Such a representative sample is required to be made so that it can be used
as primary evidence in the trial to establish the factum of the seized
contraband and to done away with the cumbersome exercise of producing
the entire contraband before the trial Court during the course of trial. It
is important to notice that the word "representative sample" has only
been used under Section 52A (2)(c) and not anywhere else in the Act. It is
again noteworthy that Section 55 of the Act speaks of taking samples from
the contraband seized by a police officer pending the orders of the
Magistrate.
Thus, the scheme of the Act of 1985 speaks of drawing of representative

samples in presence of the Magistrate and drawing of samples from the
seized contraband by a police officer. Through the various Orders and
Notifications by the Central Government as also the Field Officer's
Handbook issued by the NCB, Ministry of Home Affairs, Government of
India wherein, under Chapter-8 dealing with sampling and sealing, it has
been laid down that the Drug Law Enforcement Officer is required to take
samples from the seized drugs in duplicate in all cases in presence of
witnesses and the person from whose possession it has been recovered or
the owner/occupier, representative or owner of the premises. As noticed
earlier, the representative sample is a primary evidence to be produced
before the trial Court in lieu of the entire contraband. As far as sample
taken from the contraband for the purpose of establishing as to whether it
is contraband or not is concerned, the same is sent to FSL or Chemical
Analysis Labs for chemical examination. In the said process, the sample
sent to the FSL is even consumed by the Lab to give its report. By nature
of the aforesaid activities being distinct, the "representative samples" is
counter-distinguishable from the "sample".
(emphasis supplied)
V. BECAUSE in the present case, it is an uncontroverted position that the
samples were not drawn on spot in terms of the Standing Instructions 1/88
and 1/89 and moreover, there is no mention in the chargesheet as to the
timeline for forwarding to FSL and whether the mandatory timeline of
forwarding of sample within 72 hours was followed. Moreover, the UN
Drug Test Kit was not administered on spot on the alleged contraband. In
a catena of decisions, benefit of bail has been granted for non-compliance
of Standing Instructions 1/88 (supra) and 1/89(supra) as non-compliance
taints the investigation of the prosecution. (High Court of Rajasthan in
Om Prakash Bishnoi v. Union of India., S.B. Crl.Misc. No. 7553/2019;
Netram v. State of Rajasthan 2014(1) Crl.R.(Raj) 163; Hon’ble high
Court of Allahabad in Gopi v. State of U.P., Crl. Misc. Bail Application
No. 19854/2020; Hon’ble High Court of Punjab & Haryana at
Chandigarh in Jaswinder Singh and Anr. V. State of Punjab., Law
Suit(P&H) 5446; Hon’ble High Court of Delhi in Ram Bharose v. State
(Govt. of NCT of Delhi) Bail Application No. 1623/2021
NON-COMPLIANCE OF SECTION 42 OF THE NDPS ACT, 1985
W. BECAUSE the as per the arrest memo, the prosecution has alleged that
they arrested the accused person including the Petitioner herein inside an
Alto owned by other co-accused at around 20:55 hrs, which is in stark
violation of section 42 of the NDPS Act which allows search and seizure
only between sunrise and sunset. It is only under section 43 of the NDPS
Act where seizure and arrest are to be conducted in public place that the
statute has not imposed this embargo. This Hon’ble Supreme Court in
Boota Singh v. State of Haryana, 2021 SCC Online SC 324 held that: -
“15. The evidence in the present case clearly shows that the vehicle
was not a public conveyance but was a vehicle belonging to
accused Gurdeep Singh. The Registration Certificate of the vehicle,
which has been placed on record also does not indicate it to be a
Public Transport Vehicle. The explanation to Section 43 shows that
a private vehicle would not come within the expression “public
place” as explained in Section 43 of the NDPS Act. On the strength
of the decision of this Court in Jagraj Singh alias Hansa3, the
relevant provision would not be Section 43 of the NDPS Act but the
case would come under Section 42 of the NDPS Act.”
SUBMISSIONS QUA EXTENT OF APPLICABILITY OF SECTION 35
AND 37 OF NDPS ACT, 1985 AT STAGE OF GRANT OF BAIL
X. BECAUSE grant or refusal of bail in cases involving commercial
quantity of Narcotic Drugs, Psychotropic Substances or Controlled
Substances under The Narcotic Drugs and Psychotropic Substances Act,
1985 states is governed by Section 37 of the Act. The same is reproduced
as under:-
“37. Offences to be cognizable and non-bailable. — (1) Notwithstanding

anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
—(a) every offence punishable under this Act shall be cognizable; (b) no
person accused of an offence punishable for [offences under section 19 or
section 24 or section 27A and also for offences involving commercial
quantity] shall be released on bail or on his own bond unless— (i)the
Public Prosecutor has been given an opportunity to oppose the
application for such release, and (ii)where the Public Prosecutor opposes
the application, the court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and that he is not likely
to commit any offence while on bail.(2) The limitations on granting of bail
specified in clause (b) of sub-section (1) are in addition to the limitations
under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law
for the time being in force on granting of bail.”
Y. BECAUSE it is humbly submitted that for the purpose of granting the
bail the Legislature has used the words “reasonable grounds for believing”
instead of “the evidence” which means that the court dealing with the
grant of bail can only satisfy itself as to whether there is a genuine case
against the accused and that the prosecution will be able to produce prima
facie evidence in support of the charge. The same principle was upheld in
the case of Prahlad Singh Bhati v. NCT, Delhi & Anr., (2001) 4 SCC
280.
Z. BECAUSE it is most respectfully submitted that in Union of India v.
Rattan Mallik, (2009) 2 SCC 624, the Hon’ble Supreme Court held that
while considering an application for grant of bail under the NDPS Act, the
Court was not called upon to record a finding of “not guilty”, but to see
whether there was any reasonable ground for believing that the accused
was not guilty of the offence(s) that he was charged with and further that
he was not likely to commit an offence under the said Act while on bail.
The relevant portion of the aforementioned judgement reads as
follows:“14. We may, however, hasten to add that while considering an
application for bail with reference to Section 37 of the NDPS Act, the
court is not called upon to record a finding of “not guilty”. At this stage,
it is neither necessary nor desirable to weigh the evidence meticulously to
arrive at a positive finding as to whether or not the accused has
committed offence under the NDPS Act. What is to be seen is whether
there is reasonable ground for believing that the accused is not guilty of
the offence(s) he is charged with and further that he is not likely to
commit an offence under the said Act while on bail. The satisfaction of the
court about the existence of the said twin conditions is for a limited
purpose and is confined to the question of releasing the accused on bail.”
(emphasis supplied)
AA. BECAUSE though Section 35 of the Act raise presumptions with
regard to the culpable mental state on the part of the accused and also
places the burden of proof on the accused; however, in the case of Noor
Aga v. State of Punjab & Anr., (2008) 16 SCC 417 the Court expounded
upon the understanding of the same and stated that, “58. Sections 35 and
54 of the Act, no doubt, raise presumptions with regard to the culpable
mental state on the part of the accused as also place the burden of proof
in this behalf on the accused; but a bare perusal of the said provision
would clearly show that presumption would operate in the trial of the
accused only in the event the circumstances contained therein are fully
satisfied. An initial burden exists upon the prosecution and only when it
stands satisfied, would the legal burden shift. Even then, the standard of
proof required for the accused to prove his innocence is not as high as
that of the prosecution. Whereas the standard of proof required to prove
the guilt of the accused on the prosecution is “beyond all reasonable
doubt” but it is “preponderance of probability” on the accused. If the
prosecution fails to prove the foundational facts so as to attract the
rigours of Section 35 of the Act, the actus reus which is possession of
contraband by the accused cannot be said to have been established.”
(emphasis supplied)
Hence, That the presumption of culpable mental state would operate in trial
proceedings, not during the bail proceedings and only after the prosecution
has presented prima facie evidence the burden would shift.
6. GROUNDS FOR INTERIM RELIEF
That Petitioner has made out a prima facie case in his favour and has every
hope of success in the present Special Leave Petition. Petitioner as an
undertrial has suffered incarceration of more than 4 years and 3 months.

7. MAIN PRAYER
In the circumstances it is, therefore, most humbly and respectfully prayed
that this Hon'ble Court may graciously be pleased to:
a. Grant the Petitioner Special Leave to Appeal against the impugned judgment
and final order dated 09.11.2022 passed by Hon’ble High Court of Calcutta
in Circuit Bench at Jalpaiguri in C.R.M. (NDPS) 315/2022;
b. Pass such further and other orders as this Hon'ble Court may deem fit and
proper in the facts and circumstances of the case.
8. PRAYER FOR EX-PARTE INTERIM RELIEF: -
Pending disposal of the present special leave to appeal, it is respectfully prayed
that this Hon’ble Court may be pleased to:
A. Grant interim bail to the Petitioner during the pendency of the present
Special Leave Petition to the satisfaction of the Ld. Special Judge, 2 nd Court,
Jalpaiguri in NDPS Case No. 35/2018 arising out of FIR bearing crime no.
655/2018 registered at Police Station New Jalpaiguri, West Bengal;
B. Pass such other and further orders, as this Hon’ble Court may deem fit and
Drawn by: Filed By:

Ashima Mandla, Adv
Mandakini Singh, Adv
Syed M. Ahmad, Adv
(Ankita Chaudhary)
Advocate for the Petitioner
Drawn On: __.12.2022
Filed On: __.12.2022
New Delhi
IN THE MA TTER OF:
VERSUS
CERTIFICATE
Certified that the Special Leave Petition is confined only to the pleadings before
the High Court whose order is challenged and documents relied upon in those
proceedings. No additional facts, documents or grounds have been taken or
relied upon in the Special Leave Petition. It is further certified that the copies of
the documents/Annexures attached to the SLP are necessary to answer the
question of law raised in the petitioner or to make out grounds urged in the SLP
for consideration of this Hon’ble High Court. This certificate is given on the
basis of instruction given by the petitioner whose affidavit is filed in support of
this Special Leave Petition.
Filed By:
(Ankita Chaudhary)
Filed on __.09.2022
Place: New Delhi

IN THE MATTER OF:
VERSUS
APPLICATION FOR EXEMPTION FROM
FILING CERTIFIED COPY OF IMPUGNED ORDER
TO,
HON’BLE THE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF
THE SUPREME COURT OF INDIA
AT NEW DELHI
THE HUMBLE APPLICATION
OF THE PETITIONER ABOVE
NAMED
MOST RESPECTFULLY SHOWETH:
1. That the petitioner is filing the accompanying petition for special leave to
appeal against impugned judgment and final order dated 09.11.2022 passed by
Hon’ble High Court of Calcutta in Circuit Bench at Jalpaiguri in C.R.M. (NDPS)
315/2022.
2. That the detailed facts and circumstances giving rise to the present SLP
have been fully set out in the special leave petition. The petitioner craves leave
to refer to the same at the time of hearing and the same may be read as part of
the instant application.
3. That at the time of filing of the petition the certified copy of the impugned
order was not available and therefore a true copy of the impugned order is being
filed. A certified copy of the impugned order has also been applied and will be
made available if required by this Hon’ble Court.
4. That the applicant has made out a prima facie case in its favour and has
every hope of success. The balance of convenience and ends of justice lie
entirely in his favour. It is therefore imperative in the interest of justice that the
petitioner may be exempted from filing certified copy of the impugned order.
PRAYER
In the aforesaid facts and circumstances, it is most respectfully prayed that this
Hon’ble Court may be pleased to:

(a) Exempt the petitioner from filing certified copy of impugned judgment
and final order dated 09.11.2022 passed by Hon’ble High Court of Calcutta in
Circuit Bench at Jalpaiguri in C.R.M. (NDPS) 315/2022;
(b) Pass such other and further orders as this Hon’ble Court may deem fit and
FILED BY:
(Ankita Chaudhary)
Filed on: .09.2022
Place: New Delhi
IN THE MATTER OF:
VERSUS
FILING MEMO
S. DESCRIPTION COPIES COURT FEE

NO
1. L/P
2. SYNOPSIS & L/D
3. IMPUGNED ORDER
4. SLP WITH AFFIDAVIT
5. ANNEXURE P/1 TO P/34
8. APPLICATION FOR EXEMPTION FROM
CC
9. F/M
10. V/A
FILED BY
(Ankita Chaudhary)
(AoR Code - 3029 )
Filed on: __.09.2022
New Delhi
IN THE MATTER OF:
VERSUS
AFFIDAVIT
I, Sahadev Debbarma, Son of Nipun Debbarma, aged about 28 years, R/O House
No.90, Ward No.5, Vill. Rabi Charan P.O. Dighalia, Mouja-Uttar Debendra
Nagar, West Tripura, Tripura-799211, do hereby solemnly affirm and state on
oath as under :-
1. That I am the Pariokar being the brother of the Petitioner in the aforesaid
petition and being fully conversant with the facts & circumstances of the
present case and am duly authorized and competent to swear the instant
affidavit.
2. That the contents of the present SLP from pages __ to ___, Paras ___ to __
and synopsis & List of dates from pages ___ to __ and the accompanying Crl
MPs have been read over and explained to me which I have understood and I
state that the same are drafted to my instruction and are true and correct to the
best of my knowledge and belief.
3. That the annexures annexed to the present SLP are true and are correct copies
of their respective originals.
DEPONENT
VERIFICATION
Verified at ___________on this day of _____ day of December, 2022, that

the contents of the para 01 to 03 of the aforesaid affidavit are true and correct
to the best of my knowledge and belief and no part of it is false & nothing
material has been concealed there from.
DEPONENT

SLP Uttam Dev Barma

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IN THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. _____ OF 2022

(WITH PRAYER FOR INTERIM RELIEF)

IN THE MATTER OF:

UTTAM DEV BARMA …PETITIONER

STATE OF WEST BENGAL …RESPONDENT

I.A. NO._______ OF 2022

AN APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPY

(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR PETITIONER: ANKITA CHAUDHARY

S.No. Page of part to which it Remarks

(i) (ii) (iii) (iv) (v)

2. Listing Proforma A1-A2 A1-A2

3. Cover Page of Paper A-3

4. Index of Record of A-4

5. Limitation Report A-5

Prepared by the Registry

6. Defect List A-6

8. Synopsis and List of B-

True copy of impugned

judgment and final order

dated 09.11.2022 passed

by Hon’ble High Court

C.R.M (NDPS) No.

10. Special Leave Petition

True Typed Copy of

13.09.2018 by P.S New

True Typed Copy of FIR

No. 655/2018 dated

13.09.2018 u/s 20(b)(ii)

(c) and 23(c) of NDPS

Act, 1985 registered at

P.S New Jalpaiguri

13. Annexure P-3

True Typed Copy of

Seizure List dated

13.09.2018 in FIR No.

14. Annexure P-4

True Typed Copy of

memo of arrest dated

15. Annexure P-5

True Typed Copy of

CFSL report dated

True Typed Copy of

Order dated 25.02.2019

passed by the Ld.

Special Judge (NDPS

Act), Jalpaiguri in NDPS

Case No. 35/2018

17. Annexure P-7

True Typed Copy of

Chargesheet u/s 20(b)(ii)

(C)/23 of the NDPS Act,

1985 arising out of FIR

No. 655/2018 dated

18. Annexure P-8

True Typed Copy of

Order dated 07.03.2019

by the Ld. Special Judge

(NDPS Act), Jalpaiguri

in NDPS Case No.

True Typed Copy of

Order dated 08.03.2019