Bhaskar Bhattacharya, J. - (1.) This appeal is at the instance of two convicted persons and is directed against order dated 19th May, 2001 passed by the learned Judge, Special Court, NDPS Act, Murshidabad in NDPS Case No. 22 of 2000 under section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) thereby convicting the appellants under the said provision and passing a sentence of 10 year's rigorous imprisonment and a further fine of Rs. 1,00,000/- each. In default of payment of fine of Rs. 1,00,000/-, the appellants were directed to suffer further rigorous imprisonment for two years.
(2.) The complaint on the basis of which the prosecution commenced was that the Investigating Officer along with Constable Saktipada Paul and N.V.F. persons namely, Ranjan Sarkar, Abdul Basar and Kazem AH left for Nadaipur village to pursue information received from a source. They reached at the village at 12.35 hrs., and went to the rice mill of one Jalaluddin Sk. when they found that the accused persons were in the mill. According to the complaint, the said two persons possessed heroin for sale. The complaint alleged that on being apprehended, they confessed possession of heroin and the complainant asked them whether search would be made in presence of Executive Magistrate or a Gazetted Officer. According to the complaint, the accused told him that they preferred Executive Magistrate. Accordingly, the complainant informed S.D.P.O. (2) over wireless to send an Executive Magistrate. Consequently, one Shri Amal Krishna Goldar, Executive Magistrate, Lalbagh, arrived at Nadaipur at 13.30 hrs. The complainant also called a Goldsmith, namely, Netai Paul who arrived at Nadaipur. In the presence of witnesses namely, (1) Md. Tahasen Ali and (2) Md. Mizanoor Rahaman and an Executive Magistrate, he searched them and recovered one polypack containing heroin from the possession of one of the accused namely, Rafiqul Islam, and another polypack containing the self-same materials from the possession of the other accused namely, Saudagar Sk. Both the polypacks were weighed by Nitai Pal, a Goldsmith and found to be 40 grams and 30 grams respectively which the complainant seized after preparing seizure list in presence of the above witnesses duly signed by the witnesses as well as the accused persons. The Executive Magistrate endorsed the above two polypacks containing heroin after preparation of the inventory lists.
(3.) On the basis of the aforesaid allegations, charge was framed against two appellants under section 21 of the NDPS Act. The accused persons pleaded innocence.;