Nure Alam Chowdhury, J. - (1.) This appeal on behalf of the four appellants, Jamal Ali Mondal (A-1), Jamat Ali Mondal (A-2), Asher AH Mondal (A-3) and Brindaban Mondal (A-4) has been preferred against the judgment and order dated 23-09-2003 and 29.04.2003 respectively passed by the Id. Judge, Special Court under NDPS Act-cum-Additional District Judge, 6th Court, North 24- Parganas at Barasat convicting all the four appellants for commission of offence punishable under section 21C of the NDPS Act (as amended in 2001) hereinafter referred to as "the said Act" and sentencing each of them to suffer R.I for 17 (seventeen) years and also to pay a fine of Rs. 1.5 lakh, in default to suffer R.I for 5(five) years.
(2.) Prosecution case, in brief, is that on 13.06.2002 at about 17.20 hrs., one Binode Sharma, a Sub-Inspector of BSF (P.W. 8) came to Bongaon P.S. and informed the Officer-in-Charge Tapan Kr. Mishra (PW 1) that on that day in between 18.00 hrs. and 19.00 hrs. a dealing of large quantity of heroin would take place in the house of Jamal Ali Mondal (A-1) at Petrapole and Jamal Ali Mondal (A-1)1 and his two brothers, Jamat Ali Mondal (A-2) and Asher Ali Mondal (A-3) and other persons had brought heroin to their house at Petrapole, for selling the same. The aforesaid information was diarised and the SDPO, C.I. Anjan Ganguly (P.W. 2) and SDO, Bongaon were informed over telephone. Thereafter, a raiding party under the leadership of the Officer-in-Charge, Bongaon Police Station (P.W.1) alongwith the said Binode Sharma left for Petrapole village and reached there at about 17.50 hrs. and proceeded towards the house of appellant No. 1 on foot after leaving the vehicle on the road. Two public witnesses Sanjib Ghosh (P.W. 4) and Bapi Ray (P.W. 5) were requested to be present during the search and thereafter the raiding party alongwith the said witnesses P.W. 4 and P.W. 5 entered the house of appellant No. 1 Jamal Ali Mondal and all the four appellants were found in the courtyard of the same house and bags and other articles were also found in possession of the appellants. The Officer-in-Charge, Bongaon Police Station then told the appellants that he had information that the appellants were in possession of heroin and written notice was issued on the appellants as to whether they should be searched before any Gazetted Officer or Magistrate. The appellants signed the aforesaid notice and opted to be searched in presence of a Magistrate. Thereafter, written requisition was sent to the SDO, Bongaon for sending a Magistrate and at 19.20 hrs. Sri P.K. Dutta, Executive Magistrate, Bongaon (P.W. 3) arrived at the spot. The Assistant Commandant of B.S.F, A. Sinthel Kumar (P.W. 6) and Inspector, M. K. Tewari of BSF (P.W. 7) were also present there and P.W. 1 searched the appellants in presence of the Magistrate (P.W. 3) BSF personnel P.W. 6 and P.W. 7 and public witnesses P.W. 4 and P.W. 5.
(3.) It is the further prosecution case that on search of appellant No. 1, Jamal Ali Mondal (P.W. 1), one bag containing heroin in his right hand and a weighing machine and weights kept in a nylon bag in his left hand were recovered and the substance contained in the bag in his right hand responded positive to the taste of heroin and accordingly two samples of five grams each were taken therefrom and on search of appellant No. 2 Jamat Ali Mondal one cellophine packet was recovered from his right hand and one steel container containing Rs. 3,950/- was recovered from his left hand and the contents of the cellophine packet responded positive to the taste of heroin and accordingly two samples of 5 gms. each were taken therefrom. On search of appellant No. 3 Asher Ali Mondal one packet from his right hand and one cellophine from his left hand were recovered and the contents of the packet responded positive to the taste of heroin and accordingly two samples of 5 gms. each. On search of the appellant No. 4, Brindaban Pramanick one packet was recovered from hlis right hand and the contents of the packet responded positive to the taste of heroin and two samples of 5 gms. each were taken therefrom.;