- (1.) This appeal on behalf of the appellant Sukur Ali @ Suku is directed against the judgment & order dated 14.4.94 passed by the ld. Special Judge, 12th Bench, City Sessions Court, Calcutta in N. D. P. S. No. 27/93/N. D. P. S. No. 56, 93 convicting the appellant under Section 21 of the N. D. P. S. Act, hereinafter referred to as N. D. P. S. Act and sentencing him to suffer R. I. for 10 years and to pay a fine of Rs. 1,00,000/- (one lakh) in default to suffer further S. I. for six months.
(2.) Prosecution case, in brief, is that on 13.2.93, Intelligence Officers of Narcotic Control Bureau, hereinafter referred to as N. C. B. , Eastern Zonal Unit, Calcutta, having their office at 4/2, Kereya Road, Calcutta - 70, had been to a place, in front of Bata Shop on Jawaharlal Nehru Road to work out an information from source regarding commission of offence under N. D. P. S. Act. While maintaining watch, they arrested the appellant Sukur Ali on identification by the source and recovered from his possession two packets of brown powder suspected to be heroin, inside the ploythene carrybag held in his hand. The appellant was taken to the aforesaid office of the N. C. B. , where he made a confessional statement to the Intelligence Officers. The alamat was sealed and labelled and tested chemically in the chemical laboratory of the customs house. On the basis of the statement of the appellant Sukur Ali, another accused Zainal Abedin was also arrested. On receipt of the Chemical Analyst the N. C. B. Officer, (P. W. 1) lodged the complaint under Sections 21 & 21/29 of the N. D. P. S. Act against both the accused. Charge was framed under Section 21 of the N. D. P. S. Act against the appellant Sukur Ali and under Sections 21/29 of the N. D. P. S. Act against both Sukur Ali and Zainal Abedin. Both the accused, however, pleaded "Not guilty" to the charge and denied the prosecution case of arrest and seizure in the manner as alleged on behalf of the prosecution.
(3.) Prosecution examined 7 P. Ws. in support of the prosecution case. P. W. 1 is an intelligence officer of N. C. B. of the said office. He deposed that he filed the written petition of complaint (Ext. 1), on 1.12.93 and proved the petition of complaint alleging inter alia, recovery of 1620 gms. of brown coloured substance contained in two packets of polythene in a polythene bag in his hand suspected to be heroin on search of his person and belongings in presence of two independent public witnesses and the samples of brown coloured powder from those two packets responded positive to the test of heroin with the Field Test Kit and the report of the chemical analyst dated 26.12.93 (Ext. 3) on test of the samples of the seized brown powder confirmed the substance to have responded positive to the test of heroin. P. W. 2 was the Assistant Chemical Examiner, Custom House, Calcutta. He deposed that the relevant samples were tested by him and it responded to the test of heroin. He proved his report (Ext. 3). P. W. 3 was the officer-in-charge of the godown of N. C. B. P. W. 4 was an Intelligence Officer and was a member of the raiding party. He deposed that on 13.2.93 at about 2 P. M. source identified the appellant carrying a polythene carry bag in his hand in front of Bata Shop at Jawaharlal Nehru Road and the appellant was encircled and the appellant gave out his name as "Sukur Ali" and the packets in his carrybag contained heroin. He also deposed that the employees of Bata Shop were requested to be witnesses for search and seizure but they refused and accordingly two witnesses from the crowd were collected and search and seizure were conducted in presence of those two witnesses. He also deposed that the approximate value of the seized heroin would be about one crores and sixty lacs in the international market. In cross-examination, he stated that he was empowered under Sections 42 & 43 of the N. D. P. S. Act to search and seizure and he was the seizing officer. He denied that the provisions of N. D. P. S. Act had not been complied with at the time of search and seizure. P. W. 5 was another Intelligence Officer of N. C. B. He deposed that he recorded the voluntary confessional statement of the appellant in accordance with the law and proved the same (Ext. 12). P. W. 6 another Intelligence Officer deposed that he also recorded another voluntary statement of the appellant (Ext. 13) and he also recorded a voluntary statement of the other accused Jainal Abedin. P. W. 7 is another Intelligence Officer of N. C. B. He deposed that the appellant failed to explain the possession of the materials seized from him and that Rathin Das and Raju Prasad who were the public witnesses in the seizure list were not traceable.;