FARID AU Vs. STATE

JUDGEMENT

(1.) These appeals have been taken up for analogous hearing since the same were directed against the judgment and order of conviction dated 28/2/1997 passed by Shri B.K. Lala, the learned Judge, Special Court, under the Narcotic Drugs and Psychotropic Substances Act, Alipore 24 Parganas (South). The learned Judge was pleased to find the appellants Farid Ali and Ramesh Singh guilty for committing offence under Section 21 of the N.D.P.S. Act and sentence them to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1,00,000/- each and in default of payment of such fine to undergo further rigorous imprisonment for a term of one year. The learned Judge was, however, pleased to find the other accused, Safikul Islam not guilty of the charges framed against him and accordingly he was acquitted and released from the bail bond.

(2.) It is stated in the memo of appeal that the learned Judge failed to consider the various infirmities appearing in the evidence of the witnesses. The judgment and the order of conviction passed by the learned Judge are based on conjectures and surmises, it is further stated. The learned Judge failed to consider that there were several disinterested witnesses, including the passengers visitors and many, others in Sealdah Railway Station and ticket booking counter who were not cited as witness in the instant case. It is also pointed out in the memo of appeal that the learned Judge overlooked the vital aspects under the provisions of Section 50 of the N.D.P.S. Act, 1985 which are mandatory upon the prosecution. But the same had not been complied with. It is also stated in the memo of appeal that the alleged search by the prosecution was not made in accordance with the relevant provisions. The learned Judge had overlooked the provisions of Section 40(1) of the N.D.P.S. Act wherein it is provided the information should be reduced in writing, but in the instant case the same was not followed. It is also pointed out that the learned Judge had overlooked the fact that the prosecution failed to establish the exclusive possession of the residential premises at Asansol wherefrom the alleged contraband was seized. It is also stated in the memo of appeal that the learned Judge completely overlooked the fact that the chemical examiner examined the samples by the apparatus which were not functioning properly for which he could not furnish the percentage of composition. It is also stated by the P.W. 1 that when he received the samples, the same were completely decomposed and this casts series shadow of doubts whether the samples examined in the laboratory were really brown sugar or not. Moreover, there was discrepancy as regards the quantity of the samples received by the examiner.

(3.) It is argued by Mr. Gautam Sarkar, learned Advocate appearing for the appellant/convict Ramesh Singh that the provisions of Section 42, 50 and 52C of the N.D.P.S. Act were not followed by the learned Trial Judge and the seizure was made one day after the alleged raid. The learned Advocate for the appellant has drawn our attention to the evidence of the PW 1, the chemical examiner and also to the evidence of the PW. 2. It is pointed out that no seizure was made at Asansol, although, it is alleged that the articles were seized from the appellant Ramesh Singh at Asansol. It is claimed by the learned Advocate for this appellant that there is no proof that the appellant was in exclusive possession of the contraband articles alleged to have been recovered from his possession. It is frankly admitted by the learned Advocate for this appellant that his case does not come within the purview of Section 50 of the Act. It is pointed out by him that there were as many as two reports of the chemical examiner which does not find any justification. It is further argued by him that the provisions of Section 1000) of the Code of Criminal Procedure were violated. As regards the report of the examiner the learned Advocate for the appellant/convict Ramesh Singh has referred to a number of case laws which we shall discuss at the appropriate point of time.