Decided on April 23,2019

Sahadad Seikh @ Sahadat Seikh Appellant


Joymalya Bagchi, J. - (1.) The appeal is directed against judgment and order dated 31.07.2018 and 02.08.2018 passed by the learned Additional Sessions Judge-cum-Special Judge, 4th Court, Alipore in Sessions Case No.4(9)/2015 (Sessions Trial No. 14(04)2016) convicting the appellant for commission of offence punishable under Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs1,00,000/-, in default, to suffer simple imprisonment for one year more.
(2.) Prosecution case as alleged against the appellant is to the effect that on 17.06.2015 Sudipta Debgharia, S.I. attached to MTS Department, D.D. Lalbazar, (PW2) received information from source that a Ganja supplier was coming to supply Ganja within his jurisdiction. With the permission of Assistant Commissioner, DD-I, he organized a raid to apprehend the offender. The raiding team under the leadership of PW2 reached the vicinity of St. Teresa Secondary School at 72, Diamond Harbour Road and kept watch. Around 16.15 hrs. source indicated a young person was coming from south to north direction on Diamond Harbour Road as the suspect. Accordingly, the police personnel intercepted him in front of main gate of St. Teresa Secondary School at 72, Diamond Harbour Road, Kolkata-23. The person was carrying a black coloured sling bag on his back. He was also carrying a white coloured jute shopping bag in his right hand. The person disclosed his identity as the appellant. PW2 had given option to the appellant with regard to his legal right to be searched in presence of a Magistrate or Gazetted Officer. He opted to be searched before a Gazetted Officer. PW2 contacted his superior and after some time Inspector Monotosh Chakraborty, Additional O.C. of Ekbalpore Police Station (PW5), a gazetted officer, arrived at the spot. Mr. Chakraborty again gave an option to the appellant with regard to his right to be searched in his presence. The appellant opted to be searched in presence of Mr. Chakraborty. Upon search, 7 kgs. of cannabis plant with flowering and fruiting tops kept in a black colour polythene packet were recovered from his black colour sling bag and 14 kgs. 500 gms. of cannabis plants kept in a similar black colour polythene packet was recovered from the white coloured jute shopping bag. Search and seizure was conducted in presence of independent witnesses. Articles were seized and labelled at the spot. Appellant along with the seized articles were taken to the police station and on the written complaint of PW2, First Information Report was registered. In course of investigation, the seized articles were sent for chemical examination. Upon receipt of the report of the Chemical Examiner, charge-sheet was filed against the appellant. Charge was framed against the appellant under Section 20(b)(ii)(c) of the NDPS Act. The appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined 7 witnesses to establish its case and exhibited a number of documents. In conclusion of trial, trial Judge by the impugned judgment and order dated 31.07.2018 and 02.08.2018 convicted and sentenced the appellant, as aforesaid.
(3.) Mr. Prabir Mazumdar, learned advocate, appearing for the appellant submitted that prior information received by PW2 has not been exhibited in the instant case. Option given to the appellant was not in accordance with law. PW5, Gazetted Officer, did not satisfy himself with regard to the existence of reasonable ground for search. No seal of the Officer-in-Charge of the concerned police station was found on the articles seized in violation of section 55 of the NDPS Act. Hence, there is non-compliance of the statutory provisions relating to Sections 42, 50 and 55 of the NDPS Act. Accordingly, the appellant is entitled to an order of acquittal.;

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