Bhaskar Bhattacharya, J. - (1.) This appeal is at the instance of two convicted persons and is directed against order dated 28th August, 2001 and 29th August, 2001 passed by the learned Special Judge, 6th Bench, City Sessions Court, Calcutta in N.D.P.S. Case No. 37 of 1997 thereby holding that the appellants are guilty under Section 29 read with Section 21 of the N.D.P.S. Act and consequently, imposing sentences of rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- to each of the appellants. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for one year for the offence committed under Section 21 of the N.C.P.S. Act. Both the sentences were, however, directed to run concurrently.
(2.) The Prosecution case is based on a compliant lodged by the Narcotics Control Bureau and the case made out in the said complaint may be summarised thus : (a) Acting on own intelligence, a group of Officers of Narcotics Control Bureau (N.C.B.) led by a Gazetted Officer had been to the spot in front of Northern Side of Victoria Memorial Hall, Caluctta and as per planning, ambushed there at about 13:45 hrs. on 17th September, 1997. (b) After a few minutes, at about 14:00 hrs, a white Maruti Van bearing No. WB-02-B-1685 coming from Western side, stopped in front of Victoria Memorial Hall. Immediately, the officers of N.C.B. surrounded the said Maruti Van. The appellant No. 1 namely, Md. Moinuddin, was driving the Van and the appellant No. 2 named Shri Baidhyanath Ghatak @ Bapi was being seated beside him. The N.C.B. Officers disclosed their identity to them and expressed their intention to search the Maruti Van and also the persons. On being asked by the Officers, the driver of the van disclosed his identity as Md. Moinuddin, and the co-passenger as Shri Baidhyanath Ghatak @ Bapi. (c) The above two persons were offered an option if they wanted to be searched personally before a Magistrate or a Gazetted Officer. They were also informed that one Gazetted Officer was accompanying the raiding party. They opted to be searched before the accompanying Gazetted Officer. (d) Two persons were called upon from the onlookers to witness the search of the persons and vehicle. On search in presence of two independent witnesses, nothing was found from the vehicle, but a polythene packet containing brown coloured powdered substance believed to be Heroin was recovered from Md. Moinuddin which was wrapped in his wearing lungi below the naval region. (e) An amount of Rs. 8,000/- was recovered from the right side pocket of the long trouser of Shri Baidhyanath Ghatak @ Bapi which was brought for making advance payment against the delivery of Heroin. (f) On being asked by the Officers, Md. Moinuddin admitted that he brought the Heroin for sale to Shri Baidhyanath Ghatak @ Bapi. A small quantity from the said recovered substance was tested with the field test kit and it responded positive to the test of Heroin. The said polythene packet containing the brown powder was wieghed by the Officers in their balance scale in presence of the said two accused, the two independent witnesses and the Gazetted Officer and the brown powder weighed 235 Gms. (gross) with the polythene packet.
(3.) On the basis of the aforesaid complaint, charge was framed against the accused persons for committing offence punishable under Section 29 read with Section 21 of the N.D.P.S. Act. Separate charge was framed against Md. Moinuddin for possessing 235 Gms of Heroin for the purpose of sale to appellant No. 2 under Section 21 of the said Act.;