- (1.) THIS appeal arose out of judgment and order dated 15.2.2010 passed by the learned Judge Special Court, Barasat, North 24 Parganas and thereby convicting the appellant for committing offence punishable under Section 20(b)(ii)(B) of the NDPS Act and sentencing him to suffer R.I. for three years and also to pay a fine of Rs. 20000/ - with default clause.
(2.) IN the background of this appeal the fact in nutshell is that on 31.12.2007 at about 14.05 hours the Officer -in -Charge of Baduria P.S. received a telephonic source information that a person aged about 35 years would appear near Biva Brick Factory, Arbelia, with some quantity of ganja in order to sale the same to someone. He diarized the said information and informed SDPO, Basirhat and CI Swapupnagar. With the permission of these superior Officers, the defacto complainant alongwith other police personnel left their police station at about 14.15 hours for working out the said source information alongwith weighing balance, different weights and other stationary articles.
(3.) THE police party reached at 14.45 hrs at Arbelia near Biva Brick factory and got down from their police vehicle and the defacto complainant made contact with the source and also with two public witnesses namely Md. Kutubuddin Mondal and Md. Selim Molla and briefed them about the information so received and requested them to be the witnesses to the probable interception/search and seizure and those members of public agreed to his proposal. Thereafter the police alongwith those witnesses proceeded towards Biva Brick factory and found a person was standing at Arbelia Matia pacca road and entrance road of Biva Brick factory crossing with a white coloured nylon bag in his right hand and was identified by the source. The police intercepted that person. The defacto complainant then disclosed their identity beofe that person and on interrogation the said person disclosed his name as Nasiruddin Molla @ Nasir. The defacto complainant then informed that intercepted person that they had definite information that he has some quantity of ganja with him while the said person confessed his guilt. Then the defacto complainant informed the matter to SDPO Basirhat and CI Swarupnagar for securing the presence of an Executive Magistrate for the intended search. Subsequently, CI came to the spot at 16.25 hrs. as no executive magistrate was available and he disclosed his identity as a gazetted officer before the detained person and also informed him about the reason for his arrival. Then the defacto complainant served a notice on the detained person stating inter alia that he had the right to be searched in presence of an executive magistrate or gazetted officer while the said Nasiruddin Molla stated that he is not required to be searched in presence of any executive magistrate. Then the public witnesses searched the respective person of the police personnel and the defacto complainant searched the respective persons of the witnesses and no objectionable article could be recovered. The defacto complainant then prepared a 'nil' search list. As per order of CI Swarupnagar the defacto complainant searched the white coloured nylon bag with red coloured strip wherefrom some quantity of ganja kept in a white coloured polythine carry bag was recovered and the contraband was then weighed at the spot and the same was found to be 5 kg 200 gms. out of which 200 gms. was taken out as sample and labelled that material in presence of witnesses and thereafter seized the same under proper seizure list. The detained person and the witnesses put their signatures thereon. Since the accused could not produce any valid document in support of his possession over the contraband, he arrested the accused at the spot and brought him to the P.S. with all seized material. The defacto complainant lodged a complaint against the accused with the Basirhat P.S. After investigation the Police submitted charge -sheet.;