NETAI SEN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 21.03.2011 and 22.03.2011 passed by the learned Judge, Special Court, (under N.D.P.S. Act) Burdwan-cum-Additional Sessions Judge, 3rd Court, Burdwan in Special Case No. 05 of 2009 convicting the appellant for commission of offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to suffer further rigorous imprisonment for one year more has been assailed.

(2.) The prosecution case, as alleged, against the appellant is to the effect that on 29.06.2009 Officer-in-Charge of Durgapur Excise Circle received secret information on his mobile phone that a white coloured Maruti van bearing no. WB 38E/1559 loaded with poppy straw would be going towards Panagarh side. Considering the gravity of the offence and likelihood of escape resulting from delay in obtaining a search warrant, the said officer noted down the information as grounds for reasons to believe in a general diary and proceeded to hold raid along two constable's viz. P.Ws 4 and 5 under the supervision of Deputy Excise Collector, Durgapur Range, P.W. 3 herein. While waiting at the spot at around 10.15 A.M. they saw the Maruti car was proceeding towards Panagarh. They chased the van and could intercept it at Banskopa. Apart from the appellant who was the driver of the vehicle, there was no one inside the van. The appellant admitted that he was carrying poppy straw in the van. P.W. 1 asked him as to whether he wanted to be searched in presence of a Gazette Officer or Magistrate and he agreed to be searched in presence of a Magistrate. Two persons were requested to join in the search as independent witnesses. Thereafter the accused persons along with the independent witnesses went to the Circle Office of Excise, Durgapur Range. Requisition was made before S.D.O., Durgapur for providing an Executive Magistrate for search and seizure. Thereafter Deputy Magistrate-cumDeputy Collector arrived at the spot and in his presence body search was conducted on the driver and his driving license and registration certificate were recovered from the pocket of his shirt. Then on searching the vehicle nine bags of poppy straw were found. Officer-in-Charge of Durgapur Excise Circle, P.W. 1 herein, seized the driving license, registration certificate of the driver of the vehicle, the contraband under a proper seizure list and labeled and sealed those articles. Then the appellant himself wrote a statement and signed it admitting his guilt and thereafter he was arrested. The accused along with seized articles were produced before court and the seized article were sent for chemical examination. PW1 received chemical examination report in the course of investigation and he recorded the statement of the owner of the vehicle who stated that the he had permitted the appellant to use the vehicle on the latter's plea of taking his ailing relative for medical treatment. In conclusion of the investigation complaint was filed before the trial court and charge were framed under Section 15 of the NDPS Act. The appellant pleaded not guilty and claimed to be tried. Prosecution examined six witnesses and exhibited number of documents including chemical analyst's report being marked as Exhibit no. 4. In conclusion of trial, the defense of the appellant was one of innocence and false implication. Learned Trial Judge convicted and sentences the appellant, as aforesaid.

(3.) Learned Counsel appearing for the appellant submits that the leader of the raiding party was the investigating officer in the instant case and therefore the entire prosecution is vitiated and ought to be disbelieved. He relied on State vs. Rajangam, 2010 15 SCC 369 in support of his contention. He further submits that the evidence of the members of the raiding party suffers from various contradictions and the owner of the vehicle had not been examined during trial. He also submits that exhibit 5 i.e. requisition made before the learned Magistrate for sending the samples for chemical examination showed that the seizure had been effected at village Birudiha and not at the place of occurrence which clearly disproves the case. He finally submits that P.W. 6 was not a man of the locality and a pocket witness of the prosecution and it is difficult to rely on his version with regard to his presence at the place of occurrence. He accordingly prays for acquittal.