- (1.) On July 26, 2004 at 10.00 a.m. Sub-inspector Shri Somen Bhattacharjee of Narcotic Cell, Detective Department, Calcutta Police received a source information that a white Tata Sumo bearing registration No. GJ-9M-3244 would be crossing Red Road from South to North, transporting Ganja (Cannabinoids)). Shri Bhattacharjee immediately informed his superior and started acting on the said information. Mr. Bhattacharjee led by the Officer-in-Charge, Narcotic Cell, Detective Department named Shri Sukumar Chakrabarty along with other members of the Force and investigation kit left for the spot at 10.20 a.m. They reached Red Road at 10.35 a.m. and Force were deployed at conspicuous places. Police vehicle was placed in such a manner so that the Tata Sumo could be intercepted. They waited in front of the main gate of Mahamadan Sporting Club. At about 11.30 a.m. a white Tata Sumo bearing the registration number referred to above was seen coming from South to North. Immediately it was intercepted in front of Mahamadan Sporting Club. Ten persons including the driver were inside the vehicle. ON a search being conducted, a paper cartoon was found in between the driver's seat and the seat next to the driver containing two large cakes of Ganja, weighing 27 kilograms. The officers apprehended all ten persons. They were given written option to be searched in presence of Gazetted Officer or a Magistrate. They declined the second option. The Additional Officer in-charge, Maidan Police Station who was a Gazetted Officer was called. Accordingly, Ashok Sarkar, the Additional Officer-in-Charge, Maidan Police Station arrived at the spot. In his presence the persons were searched. However, nothing objectionable could be found in their possession. Two large cakes of Ganja found in the paper cartoon were confiscated. Sample was drawn weighing 100 grams.
(2.) Shri Somen Bhattacharyya made a written complaint to the Officer-in- Charge of the Maidan Police Station appearing at pages 2-8 of the paper book, narrating in detail about confiscation of Ganja so recovered from the Tata Sumo vehicle leading to arrest of ten persons including the driver and seizure of the vehicle in question. The accused were produced before the learned Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). The learned Judge framed the charge as against each one of them as would appear from page 10-11. Each of the accused pleaded not guilty and opted to be tried. Pw-1 (Partha Roy):- Shri Roy was a constable attached the Detective Department, Kolkata Police. He prepared rough sketch map of the place of occurrence. He identified the rough sketch map tendered in evidence. Pw-2 (Kamal Laskar):- Kamal Laskar, a constable attached to the Detective Department took the photograph of the place of occurrence. Pw-3 (Dr. Utpal Saha):- Dr. Saha was the senior scientific officer attached to the State Drug Control and Research Laboratory. He tested the sample weighing 102 grams and confirmed that the sample was found to contain Ganja (Cannabinoids). According to him, the examination was conducted chemically and not mechanically. Pw-4 (Somen Bhattacharjee) :- Shri Bhattacharjee was an officer belonging to Narcotic Cell. He received the source information referred to above and acted upon the same. He narrated in detail about the investigation leading to search and seizure referred to above. His statement was consistent with the complaint lodged with the Maidan Police Station as referred to above. He deposed that he initially wanted to take the assistance of the gardeners belonging to Mahamadan Sporting Club who refused to accede to such request. He narrated in detail how the options were even to the accused. Pw-5 (Sk. Ziaul Kader):- Shri Kader was the Sub-Inspector attached to Maidan Police Station. He registered the formal FIR lodged by Shri Somen Bhattacharyya. Pw-6 (Ashok Kumar Sarkar) :- Shri Sarkar was attached to Maidan Police Station as Additional Officer-in-Charge. The raiding party called him at about 12.30 p.m. The Officer-in- Charge, Maidan Police Station ordered him to proceed to the place of occurrence. Accordingly, he reached the spot at 12.45 p.m. He found ten persons sitting inside the Tata Sumo car, two at the front and eight at the rear. He disclosed his identity. Shri Bhattacharjee gave option to the persons for being searched in his presence. On a search being conducted a paper cartoon was found just by the side of the driver. Upon opening of the packet two large cakes of Ganja weighing about 27 kilograms were found. The accused were searched in his presence, however nothing objectionable could be found in their possession. Shri Bhattacharjee seized the contra-banned articles as well as the car and arrested the accused. The witness was present for about forty five minutes at the place of occurrence. Seizure list was prepared in his presence at the spot. In reply to the query made during cross-examination, he deposed that the options were given in Bengali, Hindi, English respectively in writing. Pw-7 (Nitin Guptat):- The witness was a business man dealing with building materials. On July 26, 2004 he along with his friend J.P. Roy (Pw-11) was going towards Howrah from Bhowanipur by riding on a motorcycle. When they reached near Mahamadan Sporting Club ground they found one Tata Sumo detained by some people just before their motorcycle. One of them disclosed his identity as a police officer and requested them to be witness to the search. The witness thereafter narrated the incident and corroborated Pw-4 and 6. The witness identified his signature on the lebel of packets marked as Material Exhibits III and Material Exhibits V. In cross-examination he categorically denied of having involved in any case in any Calcutta Court. He identified Rajjak Bhai, the driver. He also deposed that he did not attend any Test Identification Parade to identify the accused. Pw-8 (K.H. Suriabanshi):- The witness belonged to Police Force at Gujarat. He deposed that on October 8, 2004 Shri T.K. Ghosh, a Kolkata Police Officer came to Gujarat to record a statement of one Popat Bhai Somabhai Patel. Shri Patel was the owner of the Tata Sumo car involved in the incident. Initially, Shri Patel was not available on October 8, 2004 when Shri Ghosh visited the police station. Subsequently the witness recorded the statement of Shri Patel on October 23, 2004. Witness identified Shri Patel in Court. Pw-9 (Popat Bhai Somabhai Pate):- The witness was the owner of the vehicle in question. According to him, the vehicle was kept at the garage of Ikbal Bhai at Biloda, Gujarat for repairing. Shri Patel was sick. He was informed that his car was detained at Maharashtra. He however got back the car after furnishing bond. Pw-10 (Ashis Sengupta):- The witness was the Officer-in-Charge of Maidan Police Station on the date of the incident. At about 4.00 p.m. Shri Somen Bhattacharjee, Pw-4 came to the police station along with ten accused persons and lodged a written complaint. Pw-5, Shri Kader filled up the formal FIR on the basis of the written complaint. Shri Bhattacharjee produced the alamat. The witness proved the inventory list duly prepared and signed by him. Pw-11 (Joy Prakash Roy) :- Joy Prakash was a friend of Pw-7 Nitin Gupta. Joy Prakash was also a witness to the seizure. He corroborated Nitin Gupta by narrating the incident. He also identified the accused present at the dock. Joy Prakash however deposed that out of ten seizures he was not aware of the third, sixth and seventh. The last seizure was made at 2.30 p.m. and finished at 3.30 p.m. whereas the first one was made between 12.45 p.m. to 1.00 p.m. Pw-12 (Sukumar Chakraborty):- The witness was attached to Narcotic Cell. On the relevant date he was a member of the raiding party. He corroborated the other witnesses discussed above including Shri Somen Bhattacharjee, Pw-4. He deposed that he was also a Gazetted Officer. He further deposed that no contraband article could be found from the accused on being bodily searched. Pw-13 (Gurudas Chakraborty):- The witness was attached to Maidan Police Station. On the relevant date he interrogated the accused persons and recorded their statements. He arranged for putting the accused in Central Lockup at Lalbazar. On the following day he produced the accused in Court. He sent the sample of the seized alamat to the laboratory for chemical examination. On August 10, 2004 he received a letter from the Narcotic Control Bureau (N.C.B.) and came to know that Intekhab Khan and Gul Nawaz being the appellants were wanted in connection with a case pending before the learned Sub- divisional Judicial Magistrate, Pratapgarh, Chitargarh, Rajasthan. On investigation he verified the ownership of the vehicle in question. Thereafter he handed over the case to Shri Tushar Kanti Ghosh, S.L, Detective Department, Lalbazar for follow up action. Pw-14 (Tushar Kanti Ghosh) :- Shri Ghosh, a police officer went to Gujarat and had been to Samlaji police station for the purpose of interrogation of the owner of the vehicle in question being Pw-9. He was however not successful as the owner being Pw-9 was out of station. Ultimately he received a letter from the police station on November 4, 2004 that vehicle did belong to Shri Patel and his statement was recorded in English by the concerned police station. He proved the sample of the seized substance bearing his signature and seal of Detective Department, Lalbazar. Pw-15 (Dhananjoy Chakraborty) :- The witness was Officer-in-Charge, Detective Department, Malkhana. On the relevant date he received the seized article and registered the same in Malkhana Register and took charge of the seized article. All the accused were examined by the Magistrate under section 313 of the Criminal Procedure Code. Identical questions were asked to each of the accused as we find from pages 66-144. The accused pleaded innocence. According to appellant No.8 (CRA 611/2009) Intekhab Khan, he was arrested from Howrah Station and nothing was recovered from his possession. He had no idea of the seizure of the vehicle Tata Sumo or the contraband article in front of Mahamadan Sporting Ground. The other accused Rajjak Bhai Mansuri flatly denied the charges and did not specifically take any alibi. The accused Raj Kumar Yadav stated that they were "falsely arrested from Howrah". The accused Gulnawaz Khan deposed that he did not know Red Road. He was not in Tata Sumo. He was arrested from Howrah while coming to Calcutta with his uncle Intekhab Khan for tour. He did not know rest of the accused. His signature was obtained forcefully on a blank paper. The accused Ajit Singh, Birendra Pal, Ashok Bhai, Kanji Bhai, Kalswa, Hemal Kumar and Amrish Bhai Joshi flatly denied the charges and contended that nothing was recovered from their possession. The accused Acharya Matta Maoji mostly kept mum in reply to the questions and at the endi stated that the evidence was false. The accused Kale Khan flatly denied the charges and stated that he was not in Tata Sumo.
(3.) Considering the evidence so discussed and analyzed above, the learned Judge, Special Court under NDPS Act held all the accused guilty of the offence and convicted them accordingly under section 20(b)(ii)(C) read with section 29 of the NDPS Act. The learned Judge sentenced them for rigorous imprisonment for ten years coupled with a fine of rupees one lakh each and in default to suffer further rigorous imprisonment for two years under section 20(b)(ii)(C) of the NDPS Act. The learned Judge sentenced all of them for rigorous imprisonment for ten years and a fine of rupees one lakh and in default to suffer rigorous imprisonment for two years for the offence punishable under section 29 of the NDPS Act. The learned Judge however directed the sentence to run concurrently. Being aggrieved and dissatisfied with the judgment and order of the learned Special Judge the appellants preferred the above two appeals which we heard on the above mentioned dates.;