MEHTAB BIBI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 2/3.05.2011 passed by the learned Judge, Special Court under N.D.P.S. Act, Alipore, South 24-Parganas in S.T. No. 4(8) of 2010 arising out of Topsia Police Station Case No. 20 dated 03.02.2010 under Section 20(b)(ii)(c) of the N.D.P.S. Act, convicting the appellant for commission of offence punishable under Section 20(b)(ii)(c ) of the NDPS Act and subjecting him to suffer rigorous imprisonment for ten years together with a fine of Rs.1,00,000/-, in default to suffer rigorous imprisonment for five months more.

(2.) The prosecution case as alleged against the appellant is that on 03.02010 S.I. Ashadur Rahman of Narcotic Cell, D.D. Lal Bazar (P.W. 6) received an information that a lady would come to sell charas in the afternoon in the vicinity of Milan Sangha Club under Topsia Police Station area. Accordingly, he formed a team comprising of other police officers including lady constable no. 314, Mamata Ghosh and took permission from A.C. Narcotic Cell, D.D. Shri Dipak Datta in writing and left for the spot at about 11.45 hours along with source, testing kit etc. They reached the vicinity of Milan Sangha Club at 72/1, Topsia Road (South) at about 145 hours and kept watch under cover. At about 13.45 hours the source pointed out to a lady coming along Topsia Road (South) from east to west direction carrying a white polythene packet in her right hand, she was intercepted with the help of lady constable, Mamata Ghosh (P.W. 4) in front of Topsia Milan Sangha Club. A small crowd gathered there. Narcotic cell officers disclosed their identities and informed the crowd that they had detained the lady on the suspicion that she was carrying narcotic drugs with her and they intended to search her. They also requested the members of the crowd to stand as witness to the search and seizure. One Rizwan Nazmi and Suman Kumar Dey agreed to witness the search. In their presence the detained lady disclosed her identity as Mehtab Bibi and also disclosed her address. Mehtab Bibi was given option whether she desired to be searched in presence of a Magistrate or gazetted officer, she opted to be searched in presence of gazetted officer. P.W. 6 searched for a gazetted officer in the locality but was unable to find any such officer. So, he informed his superior officers to send a gazetted officer to the spot. At about 14.45 hours, Inspector Joynal Abedin, additional O.C., Topsia Police Station arrived at the spot. Then P.W. 4 searched the person of the accused in presence of the gazetted officer and other witnesses and recovered a white polythene packet from her right hand and P.W. 4 took the bag from her hand and handed it over to P.W. 6. He opened the polythene packet and found 6 pieces of rectangular shaped, black coloured thin solid sheets of charas wrapped in transparent polythene which tested positive to the presence of charas. P.W. 6 weighed the articles and found it to be 1 Kg. 180 grams. He seized the same under a seizure list in the presence of a gazetted officer. Thereafter P.W. 6 labelled and sealed the seized charas and brought Mehtab Bibi to police station along with the seized alamat and lodged F.I.R. against her at the police station. Criminal case being Topsia Police Station Case No. 20 dated 002010 started against the accused person under Section 20(b)(ii)(c) of the N.D.P.S. Act. Investigation in the instant case was conducted by P.W. 7 and upon receipt of expert report, charge-sheet was filed against the appellant. Charge was framed under Section 20(b)(ii)(c) of the NDPS Act and in the course of trial seven witnesses were examined and a number of documents were exhibited. The defence of the appellant was one of innocence and false implication. In conclusion of trial the learned Trial Judge by judgement and order dated 2/3.05.2011 convicted and sentenced the appellant, as aforesaid.

(3.) Learned Counsel appearing for the appellant submits that the prosecution has failed to prove that the search was conducted in accordance with procedure laid down under Section 42 and 50 of the NDPS Act. It is also contended that P.W. 3, the independent witness, is not a local witness. His evidence is highly improbable. It is further contended that the appellant is a handicapped lady and has been falsely implicated in the instant case.