FAKRUL ISLAM Vs. UNION OF INDIA

JUDGEMENT

(1.) Appeals are directed against the judgment and order dated 29/9/2015 passed by learned Judge, Special Court, N.D.P.S. Act, Siliguri in CR. (NDPS) Case No.12 of 2009 convicting the appellants for commission of offence punishable under sections 20(b)(ii)(C)/29 of the N.D.P.S. Act and sentencing them to suffer rigorous imprisonment for 15 years and pay a fine of Rs.1 lakh, in default, to suffer rigorous imprisonment for 1 year for the offence punishable under section 20(b)(ii)(C) of the N.D.P.S. Act and to suffer rigorous imprisonment for 15 years and pay a fine of Rs.1 lakh, in default, to suffer rigorous imprisonment for 1 year for the offence punishable under section 29. Both the sentences shall run concurrently.

(2.) Prosecution case as alleged against the appellants is to the effect that on 12/5/2015 one S.K. Chakroborty (P.W.10), Deputy Director of Intelligence, Siliguri Regimal Unit, received information that a consignment of Ganja loaded in a tanker was supposed to go to Kolkata via Siliguri-Fulbari Bypass Road. Under his leadership Debasish Acharjee (P.W.1), Basudev Chakraborty, (P.W.2), Subir Kumar Jana, (P.W.3), Somit Das (P.W.4), Pankaj Kumar (P.W.5) went to Siliguri-Fulbari Bypass Road. They kept surveillance over movement of traffic. At 10.00 p.m. they spotted a tanker near Leucipokhri on Fulbari Road. The tanker was stranded and on interrogation they were informed that it had developed some mechanical problem. The driver of the tanker disclosed his identity as Naphe Singh while the helper stated his name as Shyam Lama. Initially, they claimed that the tanker was empty but upon examination by knocking the tanker from outside it appeared some articles were stored inside the tanker. Accordingly, the tanker was taken to DRI Godown. Two independent persons, namely, Bimal Paul (P.W.6) and Shambhu Sha (P.W.9) were requested to witness the search. When the lid of the tanker was opened, number of packets were found stored in the container. 186 packets wrapped in polythene sheets were recovered from the tanker. On physical examination it was suspected that it contained ganja. From the driver's cabin and registration certificate and other papers in respect of vehicle bearing no. WB23A/2518 were recovered. A number plate showing registration no. NL-02G/5305 and with connected papers was also recovered. Net weight of the recovered contraband was found to be 3563.28 kgs. Samples were taken from six packets at random and a homogenous mixture of 300 grams of 12 samples were prepared in the presence of the appellants and independent witnesses. The entire consignment was seized and deposited in the godown along with the vehicle. Voluntary statement of appellants Naphe Singh and Shyam Lama was recorded on 13/5/2009 under Section 67 of N.D.P.S. Act wherein Naphe Singh stated that he was introduced to appellant Fakru by another truck driver and on the instruction of Fakru, he had driven the truck loaded with ganja from Assam. Shyam Lama was employed by him as a helper and he travelled with him to Assam and had knowledge that the tanker would be used to carry ganja from Assam to Kolkata. Similar statement was also made by Shyam Lama. Both the appellants were arrested on 13/5/2009. Further statements of Naphe Singh and Shyam Lama were recorded in custody and it was ascertained that one Fakrul Islam, s/o Md. Manohar Ali who had been arrested on 7/10/2009 in Bhangaghar P.S. case no. 105/08 under Section 120B/224/225 of I.P.C. is the person who had instructed them to transport the ganja. Said Fakrul Islam was shown arrested in this case. Subsequently, complaint was filed under section 20(b)(ii)(C)/29 of the N.D.P.S. Act against the appellant. Charges were framed under the aforesaid sections against the appellants who pleaded not guilt and claimed to be tried.

(3.) In the course of trial, prosecution examined 13 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication.