NURE ALAM CHOWDHURY; J. - (1.) THIS appeal on behalf of the Appellant Sukumar Mondal, a poor and illiterate boy aged about 17 years and an unlicensed hawker in train selling coffee, is directed against the judgment and order of conviction and sentence dated 31 -8 -91 passed by a learned Judge 1st Special Court. Burdwan, convicting the Appellant on the charge under Section 21 of the N.D.P.S. Act for violation of the provision under Section 8 of the N.D.P.S. Act and sentencing him to undergo R.I. for ten years and to pay fine of Rs. 1,00,000/ - (one lakh). i.d. to undergo R.I. for another three years.
(2.) PROSECUTION case in brief, is that the appellant was a. hawker of Railway without licence. On or about the 26th day of July, 1989, corresponding to 9th Bhadra. 1396, in order to work out a secret information, Sri A.K. Bandopadhyay (P.W. 4), a Sub -Inspector of Police attached to E.I.B. (Excise Intelligence Bureau) at the relevant time. Burdwan, was performing his checking duty during night with his staff at platform Nos. 4 & 5 of Burdwan Railway Station and found the Appellant standing suspiciously near the over bridge at Platform No. 4 at about 8 -30 P.M. The Appellant disclosed his name as Sukumar Mondal and on search of his body one paper packet containing about 100 mg. of heroin wrapped with polythene was found at the right hand palm of the Appellant which was seized under a seizure list (Ext. 1) and the Appellant was arrested and ultimately placed on trial and convicted and sentenced as above. Prosecution examined four witnesses in support of the prosecution case. Among them P.W. 1 was an A.S.I. of Excise performing duty with P.W. 4 on that day. He corroborated the prosecution case and is a witness to the seizure list. P.W. 2 a police constable performing duty with P.Ws. 1 & 4 also corroborated the prosecution case and he is also a witness to the seizure, P.W. 3 a witness to the seizure a public and a chance witness stated in his cross -examination that he signed the seizure list in good faith under the instruction of Excise staff. P.W. 4 S.I. of police searched the body of the Appellant and seized the heroin from the possession of the Appellant, arrested him investigated the case and submitted charge -sheet against the Appellant.
(3.) THE defence case, as transpires from the trend of cross -examination of the prosecution witnesses and the examination of the Appellant under Section 313 of the Code of Criminal Procedure is that he was a hawker in Railways without licence and he could hot satisfy the police and nothing was seized from him and the allegation against him are totally false and concocted.;