SALIM AKTHAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is directed against a judgment dated 21st june, 2005 by which the accused Mr. Salim Akthar and Debashish Dutta were convicted under Section 21/29 of the NDPS Act and an order dated 22nd June, 2005 by which the convicts were sentenced to suffer rigorous imprisonment for 10 years as also to pay a fine of Rs. 1,00,000/- each, in default to suffer further simple imprisonment for a period of 2 years for the offence punishable under Section 21 of the NDPS Act. No separate sentence under Section 29 of NDPS Act was awarded by the learned Trial Court. The convict Salim Akthar has come up in appeal.

(2.) THE facts and circumstances briefly stated are that on 19th July, 1999 a batch of officers of the Narcotic Control Bureau including its the then Superintendent (P. W. 7), who, it is claimed, was a gazetted officer, intercepted the accused persons at Central Restaurant at 213a, B. B. Ganguly Street, Calcutta 12, at 16. 00 hrs. Upon search being conducted 570 grams of heroine was recovered from the possession of the accused debashish. No incriminating material was however recovered from the accused Salim. Both of them, it appears from the arrest memos marked exts. 10 and 11 respectively, were arrested on 19th July, 1999 at 23. 00 hrs. Ext. 11 however goes to show that 570 grams (gross) of brown coloured powder substance believed to be Heroine was recovered and seized from the appellant Md. Salim Akhtar which admittedly is an untrue statement. The search cum seizure list marked Ext. 7 goes to show that the search started at 16. 00 hrs on 19th July 1999 and ended at 18. 00 hrs. Notices under Section 67 of the NDPS Act, separately issued to the accused persons, have been marked Exts. 8 and 9 respectively. Options under section 50 of the NDPS Act separately given to the accused persons have been marked Exts. 3 and 4. Consent in writing given by the accused persons, have been marked exts. 5 and 6 signifying that they were agreeable to be searched in the presence of a gazetted officer. A confessional statement captioned "voluntary statement" of the appellant, it appears, was recorded on 19th July 1999 by Shri Arup Kr. Pal (P. W. 4 ). Similarly a confessional statement captioned "voluntary statement" of the accused Debashish Dutta was recorded on 19th July, 1999 by S. Mitra (P. W. 6 ). A voluntary statement also appears to have been made by Shri Shankar Mallick (P. W. 9), the owner of the Central Restaurant on 19th July, 1999 which has been marked ext. 19. The P. W. 9 turned hostile and deposed that the statement was written by him as dictated by them meaning thereby the officers of NCB. Upon further cross-examination on behalf of prosecution he deposed that they put questions and he wrote answers. The Ext. 19 is however in a narrative form. A complaint relating to offence under Sections 21 and 29 of the NDPS Act, 1985 was filed in the Court of the learned Spl.-Judge, NDPS act, City Sessions Court, Calcutta on 31st August, 1999, which does not contain any allegation against the appellant Salim, has been marked ext. 1.

(3.) THE learned Trial Judge framed the following questions for determination :-