MD SARIF Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Judge, Special Court, under the N.D.P.S. Act, Howrah in T.R. No. 32/2002 on 23.12.2003.

(2.) Shortly put. and shorn of details, the Prosecution case is that, acting on a specific information which reduced in writing and being instructed by the superior officers, on 01.07.2002 at about 16.30 hrs. a batch of officers and staff of N.C.B., E.Z.U., Calcutta intercepted one person by name Md. Sarif at Sitalatala bus-stoppage on Sharkiral Road, Howrah and on informing that they had specific information about his carrying heroin, the officers expressed their intention to search him, that he has a right to be searched before a Magistrate or Gazetted Officer and that if he so desired, he may be searched before the departmental Gazetted Officer, to which he expressed his willinaness in writing to be searched before a Gazetted Officer of the department. On being contacted over phone, the Assistant Director of N.C.B. (PW7), EZU, Kolkata arrived there at about 18.15 hrs. Two independent witnesses from the spectators were called. The intercepted person on being asked to search the officers and staff of NCB if he so desired, declined to do so. After search of the said person in presence of two independent witnesses and the Gazetted Officer, one polythene packet of light brown coloured powder substance, believed to be heroin, kept in a red coloured jewellery bag of velvet cloth bearing marking "Haji Jewellers, Gold & Silver Ornament, 488, G.T. Road(S), Shibpur, Howrah - 711 102", inside the shirt of the person could be recovered. After testing of a small quantity of the recovered substance with the help of UNO test kit, it responded positive to the test of heroin. On reasonable belief that an offence has been committed in respect of the recovered light brown coloured powder substance believed to be heroin, the same along with the jewellery bag was seized under a section list and after weighment the contraband article was found to be 305 gms. in gross. A sample of 5 gms. each in duplicate was drawn and kept in two separate envelopes and the balance quantity in a separate polythene bag contained in the said jewellery bag was kept in another envelope. The seizure list was signed by the seizing officer, Gazetted Officer, two independent witnesses and Md Sarif, to whom a copy of seizure list was made over aqainst receipt. In pursuance of the notice under section 67 of the NDPS Act, 1985, Md Sarif attended the office of NCB at 4/2 Karaya Road, Kolkata on that date at about 21.35 hrs. and tendered a voluntary statement admitting his guilt stating that he received the seized drug from his brother Waheed of Banipur, P.S. Sankraii, Howrah who used to purchase stuff from Abbas of Barabanki and Nasim Bhai, and he was waiting at Sitalatala bus-stopage to deliver the same to one Mohan of Sudder Street, Kolkata. Md Sarif was arrested on that date at about 23.45 hrs. and after completion of investigation complaint was filed against him under sections 21 and 29 of the NDPS Act, 1985. Hence, the accused was charged under section 21, NDPS Act, 1985.

(3.) The defence case, as suggested to P.Ws., and as contended by the accused during his examination under section 313 Cr PC, is that nothing was recovered from his possession nor any option was given to him. The story of search and seizure was manufactured in the office of NCB, where thumb impressions of the accused were taken on a number of papers. He has been falsely implicated in this case.