NABARUN Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) This Court is hearing the appeal as against the order of conviction and sentence respectively passed on 29.05.2009 and 30.05.2009 by the Judge, Special Court (Under N.D.P.S. Act), Jalpaiguri in N.D.P.S. Case No. 30 of 2007 wherein the appellant was convicted in respect of the charge under Section 21(b) of the N.D.P.S. Act. The appellant was sentenced to suffer R.I. for five years and he was further sentenced to pay fine of Rs.20,000/- (rupees twenty thousand) and in default to suffer further R.I. for one year. The seized heroin was ordered to be destroyed after the period of appeal. There was also an order of set off.

(2.) The case in a nutshell can be stated in brief thus that on 30.07.2007 at about 22.55 hrs at Kankata More, Eastern by-pass within Police Station Bhaktinagar, District, Jalpaiguri the accused was found to be in possession of 20 gms of heroin which was kept concealed in the left side pant pocket of the present accused-appellant and on demand the accused-appellant failed to produce any valid document or paper for possession of such contraband item and as such the contraband article was seized. It may be mentioned that the de facto-complainant had one tip of regarding the alleged possession of such heroin who according to the prosecution is one drug pedlar. The de facto-complainant diarized the matter being Bhaktinagar Police Station G.D. Entry No.1859 dated 30.07.2007 and the de facto-complainant along with four policemen including A.S.I., Uday Chakraborty went to work out the source information and rest of the story I have already stated.

(3.) It may be mentioned that the search and seizure was made in presence of Sri Sitaram Sinha, (P.W.4), Circle Inspector (Sadar), NJP, one Gazetted Officer, who was requested to witness the search and seizure. But it may be noted that no written notice under Section 50 of the N.D.P.S. Act was issued even though the contraband article was seized from the pocket of the trouser of the accused. The learned Trial Court in the internal page No.11 and 12 of the judgment dealt with this matter and hold that under Section 50 there is nothing to suggest that such option has to be offered to the accused in writing. It was argued by Mr. Dutta, learned advocate appearing on behalf of the State that considering the evidence of P.W.1 to P.W.3 who were members of the raiding party, the evidence of P.W.4, witness to the search being the gazetted officer to comply with the provision of Section 50 and also the evidence of two independent witnesses i.e., P.W.5 and P.W.6 the prosecution could prove charge against accused.