FULCHAND SHEIKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 17th December, 2013 and 18th December, 2013 passed by the learned Judge, Special Court under the NDPS Act, Nadia in NDPS Case No.24 of 2012 convicting the appellant for commission of offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-, in default, to suffer further simple imprisonment for one year.

(2.) The prosecution case as alleged against the appellant is to the effect that on 20.08.2012 at 16.15 hrs., a secret information was received by P.W. 5-S.I. Avijit Biswas, that a person shall be travelling on a motor cycle down N.H.34 carrying narcotic substance. The said information was diarized as G.D. Entry No.637 dated 20.8.2012 and such information was transmitted to O.C., Kaliganj Police Station and C.I., Nakashipara. Thereafter, S.I. Avijit Biswas left for the spot to work out the information at 16.35 hrs. The police party laid ambush at Mira Bazar R.O.P. Around 16.50 hrs, a person was seen coming in a red Honda Shine motor cycle and after being identified by the source, P.W.5 and others surrounded the person. He disclosed his identity as the appellant. A nylon bag was found hanging on the left side handle of the motor cycle. He admitted that there was 500 grams heroin wrapped in the polythene inside the bag. He requested O.C., Kaliganj Police Station to arrange for Magistrate for effecting search. As it was EID festival, Magistrate was not available. C.I, Nakashipara being a Gazetted Officer came to the spot at 17.35 hrs. for the search of the accused person. Thereafter, the accused person was given an option to search a raiding party, which he refused. He admitted that he dealt with different narcotics and was carrying on heroin towards Lalgola-Murshidabad. As per direction of C.I. Nakashipara, S.I., Avijit Biswas searched the Nylon bag and recovered one plastic pouch wrapped in white paper and elastic rubber band containing blackish powder which was heroin as stated by the appellant. He also searched the basket of the motor cycle but there was nothing in the basket of the motor cycle. Upon weighing, the plastic bag containing heroin was found 305 grams. 10 grams of heroin was extracted from the packet and labelled as Ext.-A1. Another 10 grams was also labelled as second sample and marked as Ext.-A Seizure and labelling was done in front of the local people and the police party. Most of the public denied signing on the seizure list fearing their lives as the accused person was a known anti-social. Pursuant to search and seizure, the seized articles along with the accused was brought to Kaliganj Police Station and the written complaint of P.W. 5, S.I. Avijit Biswas, being Kaliganj Police Station Case No.560 dated 20.08.2012 under Section 21 of the NDPS Act was registered. Sample was sent for chemical examination and on receipt of the chemical examiner's report, charge sheet was filed against the appellant under Section 21(c) of the NDPS Act. Charge was framed under the aforesaid provision of law. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined six witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgement and order dated 17th December, 2013 and 18th December, 2013 convicted and sentenced the appellant, as aforesaid.

(3.) Mr. Chakraborty, learned Advocate appearing for the appellant argued that the seizure in the instant case has not been proved beyond the reasonable doubt. Independent witness P.W. 1 has not supported the seizure. He also submitted that option under Section 50 of the NDPS Act had not been given to the accused person. Mere presence of Gazetted Officer does not absolve the raiding party from the obligation on making an offer in terms of the aforesaid provision of law. He also submitted that the link evidence relating to the preservation of the narcotic substance and despatch the same to the chemical examiner for examination has also not been established. He accordingly prayed for acquittal of the appellant.