SAMAPTI CHATTERJEE, J. - (1.) THE instant appeal is directed against the Judgment and Order of conviction passed in N.D.P.S. Case No.70 of 2007 by the learned Judge Special Court under N.D.P.S. Act, Murshidabad at Berhampore on 23rd September, 2011 convicting the appellants under Section 21 (c) of the N.D.P.S. Act. They are also sentenced to suffer Rigorious Imprisonment for 10 (ten) years each and to pay a fine of Rs.1,00,000/ - (one lakh) each in default to suffer further Rigorous Imprisonment for one year each.
(2.) PUT in a short frame, the prosecution case is as follows: - On 31.08.2007 at about 6:00 hours the team of N.C.B., Eastern Zonal Unit moved towards Paharpur Ghoshpara area and ambushed on Lalgola -Jangipur Road which is about two kilometers from the New Bus Stand, Lalgola. At about 8:30 hours as per the indication of informer the said team intercepted two persons who were coming from Lalgola side on foot on interception the Officer disclosed their identity as Officers of N.C.B. , Eastern Zonal Unit, Kolkata. The Officers further revealed the intention to search their person as they had information that they were carrying good quantity of heroin with them. On asking the aforesaid persons they disclosed their names as Mainul Haque and Jamirul Sk. Both the accused persons voluntarily took out one packet each from inside their underwears which were kept secreted at pubis of both the them. A small quantity of recovered brown coloured substance believed to be heroin (from both the packets) was tested by the field test -kit and which responded positive to the test of heroin. Both the recovered packets were weighed separately and it was found 500 gms (gross) each, in total it is 1000 (gms). Thereafter, police arrested the appellants/accused persons and after completion of investigation the Intelligence Officer of N.C.B. filed the complaint on 22.02.2008 in final form against the accused persons. Charge was framed against both the accused persons namely 1. Mainul Haque and 2. Jamirul Sk @ Jamirul Haque under Section 21 (c) read with Section 29 the N.D.P.S. Act. Accordingly trial started and after completion of trial learned Judge, Special Court under N.D.P.S. Act held the appellants guilty and convicted them as aforesaid.
(3.) P .W.1 is the Intelligence Officer at Narcotics Control Bureau who was the informer/complainant. In his evidence he stated that the petition of complaint was lodged exclusively on the basis of documentary evidence on the instructions of the Zonal Director, N.C.B, Eastern Region. He agreed that contraband articles were not in the Court room. He also stated that he could not say in which godown they were kept. He further deposed that he could not say the date and time when the alleged contraband articles were kept in the godown before filing petition of complaint. He deposed that name of the gazetted officer who was allegedly present at the time of incident was not mentioned in the petition of complaint. He had no personal knowledge about the case. P.W.2, Officer of the N.C.B. Kolkata. He in his evidence stated that on 29th August 2007 they got information and Monotosh Sarkar recorded that information. They, four persons, were present there including him namely P.W.2 Monotosh Sarkar, Rajib Kumar and G. Jana. All of them signed on the information writing on 20.08.2007. In the morning they started for Berhampore to Kolkata to work out the information. On 30th August, 2007 they stayed at Berhampore in the night and the morning on 31st August, 2007 at about 6 a.m. they started for their camp office at Berhampore. D.K. Ghosh Superintendent, P.W.2 Monotosh Sarkar, Rajib Kumar, Ganesh Jana and one sepoy Biswas and one lady sepoy Kalpona Ghosh and other were in that raiding team. They proceeded towards Lalgola. Thereafter they came to Ghoshpara at a distance of 2 k.m. from Lalgola. At about 8 a.m. in the morning they arrived on the spot. Their informer communicated them that 2 persons were coming with heroin. Then they encircled those two persons and they asked their name. The said two persons stated that their names as Mainul Haque and Jamirul Sk. The raiding team disclosed them that they are coming from N.C.B office and they had information that they were carrying huge quantity of heroine in their possession and so they wanted to search them. Thereafter, P.W.2, informed the accused persons in writing that they had right to search in presence of a Magistrate or a gazetted officer. They also informed them (accused persons) that they had no gazetted officer with them and if the accused persons would like they could be searched in his presence. Thereafter at the instance of the accused persons the P.W.2 wrote letter of acceptance for appellant no.2 Jamirul Sk. and P.W.6 wrote letter of acceptance for appellant no.1 accused Moinul Haque. (Exbt.2 and Exbt.3) and offer letters are Exbt.4 and Exbt.5. Some persons gathered there. Two of them were called by the P.W.1 as witnesses for search. Thereafter accused Jamirul brought out a packet of heroin containing 500 gms of heroin from his underwear as he was wearing a pant at that time and other accused Mainul was wearing Loongi and he brought out a packet weighting 500 gms heroin from underwear. Those two packets were taken by them and those were tested by the P.W.2 by taking some small quantity from the packets. Test result shown positive. Rest articles were taken in other two packets in paper envelop. Those were 4 sample packets marked as Mat. Exbt.I series and mother packet marked as Mat. Exbt.II. Thereafter Rajib Kumar gave a notice to the accused persons under Section 67 of the N.D.P.S. Act and asked the accused persons to accompany them to Berhampore camp office. They took the accused persons in their vehicle at Berhampore. There they were examined and they gave statements. The P.W.2 further stated that accused persons informed them that they could not write properly so at the request of Jamirul Sk. P.W.1 recorded his statement in verbatim way. Thereafter he put his signature in each and other page marked Exbt.6. Monotosh Sarkar recorded the statement of other accused person. They gave their statements voluntarily and not under pressure, compulsion and they admitted their guilt. Thereafter Monotosh Sarkar prepared arrest memo. The accused persons told that they got the articles from Najai Mondal of Kharer Mathpara, Nadia. On that date they produced them in Court after arrest. In his cross examination P.W.2 stated that he did not put his signature on the sample packet and mother packet. The source information paper was also not in Court record. He also stated that he and other officers in the raiding team did not prepare any sketch map of the place of occurrence. He also admitted that they did not go to any respectable person of that locale to request them to become witness. He further stated that at the scene of occurrence the accused persons did not try to flee away. At about 12 noon he started to write down voluntary statement of the accused persons. Though their camp at Berhampore was situated in dense locality but he did not call for any private person there to become witness. The accused persons told that their handwriting was illegible and they could not write properly. The accused persons told them to write their statement. He further stated that no separate inventory was made. He did not seize the undergarments of the accused persons. He further deposed that voluntary statement of the accused persons did not show that their Superintendent gave him permission to write down the voluntary statement. He further deposed that there was no admission of the accused persons regarding the contents of the voluntary statements and no time was mentioned in the voluntary statement.;