MAKHAN THAKUR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Aggrieved by the decision dated 8th July, 2009 in Narcotic Drugs and Psychotropic Substances case No. 4 of 2006, the Special Court (E.C. Court)-cum-Additional Sessions Judge, Hooghly, convicting and sentencing him, the appellant has filed the present appeal. The appellant has been found guilty of the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act'). He has been sentenced to suffer rigorous imprisonment for 10 years and directed to pay a fine of Rs. 1 lac; in default of payment of fine he is to suffer simple imprisonment for a further period of 10 months.

(2.) The appellant was intercepted by officers of the Narcotics Control Bureau, Eastern Zonal Unit, Kolkata (hereinafter referred to as "NCB, EZU") at Dumurdaha Station bus stand in front of the Shani Mandir at about 3.15 p.m. on 6th September, 2006. He was holding a multicoloured nylon bazaar bag in his right hand. The officers expressed their intention to search the bag as they had specific information that he was carrying heroin. According to the prosecution the officers informed the appellant that he had right to be searched in the presence of a Magistrate or any Gazetted Officer. However, he declined to accept that option. The officers of the Narcotics Control Bureau (hereinafter referred to as "NCB") also offered to be searched by the appellant but he chose not do so. According to the prosecution the appellant took out a polythene packet from the bazaar bag that he was holding and voluntarily handed over the same to the officers. This polythene packet contained a brown coloured powder which the officers believed to be heroin. A small quantity of that powder was tested with the field test kit and it responded positively to the test for heroin. The packet weighed 500 grams. This entire procedure was conducted in the presence of two independent witnesses, the NCB officers and the appellant. The multi-coloured nylon bazaar bag, the packet containing 500 grams of a brown coloured substance believed to be heroin were all seized by the officers of the NCB. A sample in duplicate of 5 grams was drawn from the packet and was sealed, labelled and signed by the seizing officer and the independent witnesses. The rest of the quantity of the brown powder was sealed and also labelled. This procedure carried out for the seizure of multi-coloured nylon bazaar bag as well. According to the prosecution the appellant revealed that he had received the contraband from one Ashoke Baruri of Dumurdaha. A notice under Section 67 of the NDPS Act was served on the appellant directing him to appear before the NCB, EZU office at Kolkata on 6th September, 2006 at 8 p.m. for further interrogation and investigation. The prosecution claims that he voluntarily accompanied the NCB officers to their office and submitted his statement admitting his guilt. He was arrested under Section 43 of the NDPS Act on 6th September, 2006 at 11.30 p.m. and charged for having committed an offence punishable under Section 21(c) of that Act. Ashoke Kumar Baruri, Salim Sk. and Jiban Baruri who were named by the appellant were issued notices under Section 67 of the NDPS Act with a direction to appear before the investigating officer. However, they did not comply with the notice.

(3.) The complaint was filed by the intelligence officer, NCB, EZU, Kolkata on 2nd March, 2007 against the appellant as well as the aforesaid three persons. The prosecution relied on the 5 witnesses in support of its case. The appellant has been convicted and sentenced as aforesaid while the others have been acquitted.