- (1.) What could have been an unimpeachable order in the light of an otherwise impregnable prosecution case, has become susceptible to the scanner of section 386 (b)(i) of the Code of Criminal Procedure for the following reasons : a) Failure on the part of the learned Trial Court to put before the convict/appellant, the circumstances emerging out of the Chemical Examination Report (Ext.8) prepared by the Government analyst and; b) Omission to conform to the provisions of section 233 sub-section (1) of the Code of Criminal Procedure.
(2.) In an otherwise picture perfect State of the Art Prosecution case neatly presented before the learned Trial Court, the system failure, which occasioned, needs to be corrected or else, there would be aberration of justice. For the purpose of locating the fault, which in ordinary circumstances, could not have been of any consequence but in the fact situation of the instant case, which, we will be tracking -this assumes some significance and in our judicial opinion, in the event the same is not redressed, a failure of justice would be sustained. Now, we will be boarding the Down Mahananda Express stationed at Platform No. 1 of Alipurduar Junction Road Railway Station in the early hours (7/7-30 a.m.) of 11.02.2006 along with P.W.4, Rinchen Lama Bhutia, the Officer-in-Charge of Government Railway Police Station (in short G.R.P.S.). He had received a source information that a stock of ganja was carried in a Air Conditioned -Ilnd Class Compartment of Mahananda Express. Immediately, he reduced such information in writing on the strength of General Diary Entry No. 242 (Exts. 3 and 3/1) and accordingly informed his superior officer, the inspector about it.
(3.) He located the appellant in the lower berth of the said compartment, who corresponds to the description of the source. After disclosing his identity, he desired to search the suitcase but the appellant being reluctant, he was taken off from the train and brought to the Government Railway Police Station Office with his luggage consisting of a bag and an attache case. Later on, he requisitioned the services of a Magistrate. Pursuant thereof, Shri J.C. Dutta Roy (since deceased), was deputed by Sub-Divisional Officer, Alipurduar for this purpose. In the presence of the Magistrate the bag and attache case was opened. The articles were sent on weighment to the Parcel Office. P.W.7, Gopal Prosad, a parcel labour had weighed it as 31.5 Kgs. The same was seized and samples were drawn therefrom on the strength of a seizure list (Ext. 1/2) including Rs. 7,000/- in cash. The seized sample and the stock of ganja was marked as Mat. Exts. II and III. P.W.4, Rinchen Lama Bhutia, the Officer-in-Charge, G.R.P.S. therefore, lodged a written complaint (Ext.4) which was treated as FIR (Ext.5). Buttressing the factum of search and seizure, there are two parts evidence before us, both on board as well as at the G.R.P.S. P.W.2, Partha Pratim Das, A.S.I., Alipurduar Junction G.R.P.S. P.W.3, Amitava Sarkar, A.S.I. New Alipurduar Junction G.R.P.S. as well as P.W.5, Samir Kumar Banerjee, A.S.I., Railway Protection Force of Alipurduar Railway Station and P.W.6, Badal Barman, Constable of Alipurduar G.R.P.S.-all of whom accompanied P.W.4, Rinchen Lama Bhutia, Officer-in-Charge of Alipurduar Junction G.R.P.S. and deposed with regard to the search and seizure and detection of the appellant in the Air Conditioned Ilnd Class Compartment of Mahananda Express at Platform No.1.;