KANU CHAKRABORTY Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) This Criminal Appeal has been directed against the judgment and order dated 8th May, 1990 passed by Sri B. Kundu, the learned Additional Sessions Judge. Siliguri, in Session Trial No. 27 of 1987 arising out of C.RR Case No. 169 of 1986, convicting the appellant under Sec. 46C(1) of the Bengal Excise Act and Sec. 18 of the Narcotic Drug and Psychotropic Substances Act 1985 and sentencing the convict to rigorous imprisonment for 2 (two) years and a fine of Rs. 2,000/ - i.d. for further rigorous imprisonment for 6 (six) months for the first offence and rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 1 lakh i.d., to further rigorous imprisonment for 2 (two) years for the second offence. The prosecution case in brief is that on June 22, 1985, Sri Swapan Aditya, Sub -Inspector of Excise Department along with Sri D.K. Biswas, Superintendent of Excise (Preventive), Jalpaiguri Division and some other constables of Excise Department raided the residence and grocery shop of the appellant Sri Kanu Chakraborty at Pati Colony, Bagdogra at about 9.30 a.m. in the presence of two independent witnesses and recovered and seized 20 Kgs. Of' Ganga and 1.8 Kgs. Of Opium and also arrested the appellant. Of the said Ganja, one Kg. was recovered from the shop of the appellant and the remaining 19 Kgs. were found out from below the cot of his bed room. The Officer -in -Charge, Excise Department seized the articles under a Seizure List obtaining thereon the signatures of the witnesses present there. He then took samples from each of the packets and then sealed the seized packets as well as the samples and pasted labels thereon following the rules. He also recorded the statements of the witnesses under Sec. 161 of the Code of Criminal Procedure and arrested the accused and took him to the Excise office along with seized materials and on the next day forwarded the accused to the court. He sent the sample packets to the Chemical Analyst for examination and report and after completion of his investigation and after obtaining report from the Chemical Examiner submitted charge -sheet against the accused before the Court of Sub -Divisional Judicial Magistrate, Siliguri on 20.12. 1986 under Sec. 46A(c)(ii) of the Bengal Excise Act as well as under Sec. 18 of the N. D. P. S. Act, 1985.

(2.) The learned Magistrate framed charges against the accused under Sec. 46A(c)(ii) of the Bengal Excise Act and also Sec. 19 of the N. D. P. S. Act, when the charge was read over to him, the appellant pleaded not guilty and, accordingly, a date for trial was fixed. The case of the defence as disclosed from the trend of cross -examination of the witnesses was that nothing had been recovered from his possession and he had been falsely implicated after being brought from the market.

(3.) The learned trial Judge took evidence, both oral and documentary and, thereafter, examined the accused under Sec. 313 of the Code of Criminal Procedure and after having heard the arguments of both sides delivered the impugned judgment. He held that the charges had been established beyond reasonable doubt and, accordingly, he convicted the accused and inflicted the abovementioned punishment. The learned Judge found that there was no reason why the evidence of the witnesses should be disbelieved and that he did not find any fault with the search and seizure conducted by the Investigation Officer in this case and he did not accept the defence argument that mere absence of local inhabitants near the house of the accused during search as witnesses nullified the reliability of the evidence of the witnesses examined by the prosecution.