AKBAR ALI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 1.7.2019 and 2.7.2019 passed by the learned Judge, Special Court, NDPS Act, Berhampore, Murshidabad in NDPS Case NO.119/2012 convicting the appellant for commission of offence punishable under Sections 21(c) of the NDPS Act and sentencing him to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- in default to suffer rigorous imprisonment for six months more.

(2.) Prosecution case as alleged against the appellant is to the effect that on 6.12.2012 at 10 am while PW 1, Somnath Banerjee, was on law and order duty at Jotkamal High School, he received secret information that a 25-year old man carrying heroin in a black colour school bag was coming from Lalgola side in a bus bearing registration no.WB-57/6300. He communicated the information to S.D.P.O. Jangipur. He also requested duty officer to send the drug detection kit to Jotkamal bus stand and proceeded to the spot to work out the information. At 10.30 am the bus reached Jotkamal bus stand. He detained the bus and apprehended the appellant who was carrying a school bag. He gave offer to the appellant whether he would like to be searched before a gazetted officer or an executive magistrate. Appellant desired to be searched before executive magistrate. He sent requisition for an executive magistrate. He also requisitioned a local goldsmith to come to the spot with his weighing instrument. At 11.15 hours B.D.O. Partha Pratim Sandhu Khan, (P.W. 6) arrived at the spot. S.D.P.O., Jangipur (P.W. 7) also arrived at the spot. In the presence of the B.D.O., appellant was searched. Nine packets were recovered from the bag. The packets were kept in cellophane packet paper. He requested goldsmith to weigh the contraband suspected to be heroin. The weight of each packet was 100 gms. He drew two samples of 5 gms. each from each of the nine packets. He prepared seizure list which was signed by witnesses including bus conductor (P.W. 2), B.D.O. (P.W. 6). LTI of the appellant was also affixed. Appellant failed to give satisfactory explanation with regard to alleged possession of the narcotic. He arrested the appellant and lodged written complaint (Ext.1) which was treated as First Information Report. Upon registration of the criminal case P.W. 12 took up investigation. He dispatched the samples for chemical examination. Subsequently, charge-sheet was filed against the appellant. Charge was framed under section 21(c) of the NDPS Act. Appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 12 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by judgment and order convicted and sentenced the appellant, as aforesaid.

(3.) Mr. Subrata Karmakar appearing for the appellant argued that the prosecution has failed to prove the possession of narcotic substance in the custody of the appellant. P.W. 2 claimed that the bag was brought down from the bunk of the bus. It was not in the possession of the appellant. No evidence is forthcoming that the appellant had put the bag in the bunk. Hence, the factum of possession has not been proved beyond doubt. School bag has also not been produced in Court. There is no compliance of section 50 of the NDPS Act. Place of seizure and sampling of articles are also in dispute. While P.W. 1 and other witnesses claimed it was made at the bus stand, the goldsmith (P.W.4) deposed he weighed the samples in his shop. Chain of custody of the seizure articles has also not been established. Prosecution failed to adduce evidence with regard to custody and dispatch of the samples for chemical examination. Requisition to the goldsmith and other vital documents have also not been produced in Court. Hence, prosecution suffered from inherent defects and ought to have been disbelieved.