SANJIB GUPTA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Criminal Appeal is so preferred under section 374(2) and 382 of the Code of Criminal Procedure. 1973 against the judgment and order dated 26-3-1998 passed by the learned Sessions Judge, Tinsukia in NDPS Case No. 1(T) 95, convicting the accused/appellants, Shri Sanjib Gupta and Smt. Jasoda Devi under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentencing them to undergo rigorous imprisonment for a period of ten years each and also to pay a fine of Rs. 1 lakh each, in default, to undergo rigorous imprisonment for a period of five years each.

(2.) The prosecution case giving rise to Tinsukia P.S. Case No. 96/95, so registered under section 20 of the NDPS Act, in short, is that on 24- 2-1995 in the evening hours on a secret information, Tinsukia Police searched the shop cum-residence of the accused Sanjib Kumar Gupta, appellant No. 1, and his mother, Jasoda Devi, appellant No.2 and found two packets of opium weighing 98 grammes and 82 grammes respectively, (in total 180 grammes), which are said to have been kept by them illegally and the said sample so seized gave positive test of opium. After the search, they were apprehended and charge sheet was so submitted against them under section 18 of the NDPS Act and after examining six of the prosecution witnesses, no defence witness being examined the learned court below came to the conclusion of prosecution establishing the guilt of the accused/appellants upto the hilt and hence they got convicted and sentenced as detailed above.

(3.) Out of the six witnesses so examined on behalf of the prosecution in the course of trial, it comes in light that P.W.1 is Prabin Barkataky, who is a seizure list witness. So is the case with P.W.2. Shri Ballabh Pal. P.W. 3 is Shri Swapan Kumar Dutta, Deputy Director (Chemistry), (Drugs and Narcotics), Forensic Science Laboratory, Guwahati, who after test opined the seized material to be opium. P.W. 4 is a Constable, who was also present at the time of the arrest of these accused/appellants being made by P.W. 6 on the date of occurrence. According to him, the opium packets were concealed under a refrigerator of the said shop. This witness on the date of occurrence happened to be the P.S.O. of the Additional S.P., Tinsukia. P.W. 5 is Syed Abdur Rashid Ahmed. He was also Inspector of Police, Guwahati. He was the officer-in-charge of Tinsukia P.S., at that time. He in clear words stated in his examination-in chief of his not being present at the time of search. Ejahar so lodged by Shri Jyotirmoy Senapati (P.W. 5) is marked as Ex. 5. The last witness, P.W. 6, is Shri Jyotirmoy Senapati who on the relevant date, that is, 24-2-1995 was the 2nd Officer at Tinsukia P.S. who is said to have rushed to the said shop after making the G.D. entry, which is marked as Ext. 7, and after search found those two packets said to have been concealed beneath the refrigerator kept in the said shop, seizure list being prepared the accused/appellants being apprehended.