Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 29th August/31st August, 2015 passed by the learned Judge, Special Court under the NDPS Act, Purba Medinipur at Tamluk in T.R. (NDPS) No. 10/11 convicting the appellant for commission of offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentencing him to suffer imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default, to suffer further simple imprisonment for two years more.
(2.) The prosecution case as alleged against the appellant is to the effect that on 17th December, 2011 at 03:25 hrs. a source information was received at Marishda Police Station that one pickup van (Tata ACE) with 'Nafisa' and KGN inscribed on its body would be carrying a huge amount of Ganja through DighaMecheda State Highway for sell to someone at Digha for valuable consideration. The said information was diarised and upon the direction of Officer-in-charge, Marishda Police Station, Naba Kumar Rajwar (P.W. 1) along with others went out to work out the said information. Nishanta Mukherjee, B.D.O., Contai-III and Debasish Ray, Circle Inspector, Contai, a Gazetted Officer were intimated and were requested to assist the raiding party. P.W. 1, Naba Kumar Rajwar along with other officers left in police vehicles with necessary articles like paper, carbon paper, cloth, stamp pad, sealing wax, metal specimen, scale etc. to the spot. Circle Inspector Debasish Roy also accompanied the raiding party. P.W. 1 requisitioned one Ashok Dhara to provide weighing scale along with weights of 100 grams to 20 kg. for the purpose of weighing. At 06:25 hrs. the police party reached Digha-Mecheda State Highway near Sillibari about 50 mtrs. north of the Block Development Office and kept watch at the spot. They requested local persons namely, Ashok Pradhan, Kaushik Dwibedi and Anjan Jana to join them in the raid. They agreed to do so. At 08:30 hrs. on being identified by source they saw one pickup van was approaching from Heria side. The police party stopped the said vehicle. The driver tried to flee but was apprehended. He disclosed his identity. P.W 1 disclosed his identity and asked the suspect whether he would like to be searched in presence of Executive Magistrate or a Gazetted Officer. He issued written notice to the suspect in that regard. He expressed his desire to be searched in presence of Executive Magistrate. Accordingly, Nishanta Mukherjee, B.D.O., Contai-III was requested to come to the spot. Executive Magistrate again issued notice upon the suspect whether he was willing to be searched in his presence. He expressed his willingness to do so. Thereafter, the vehicle was searched and 15 plastic sacks were found in the vehicle covered with blue tarpaulin. On opening each sack police found Ganja inside the sack. On interrogation the suspect confessed that he was carrying Ganja. Thereafter by using weights and scale the entire consignment was weighed and it was found to be 300 kg. From the fifteen plastic sacks, samples of 100 grams were drawn from each sack. The entire consignment along with the pickup van and other articles were seized. The appellant along with the seized articles were brought to the police station and P.W. 1 lodged written complaint resulting in registration of Marishda Police Station Case No. 158 of 2011 dated 17th December, 2011 under Section 20(b)(ii)(c) of the NDPS Act. Samples were sent for chemical examination and upon receipt of chemical examiner's report, charge sheet was filed against the appellant. Charge was framed under Section 20(b)(ii)(c) of the NDPS Act. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 10 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 29th August/31st August, 2015 convicted and sentenced the appellant, as aforesaid.
(3.) Mr. Moinak Bakshi, learned advocate appearing for the appellant submitted that the seizure of narcotics from the possession of the appellant has not been proved beyond doubt. Although P.W. 1 did not find any label attached on the plastic sacks produced in Court, other witnesses noted the labels on the said sacks. He also submitted that there is dichotomy in the evidence of P.W. 1 with regard to the number of sacks which were found in the court room during trial. He also submitted that there was no compliance of the provisions of Sections 42(2) and 50 of the NDPS Act at the time of seizure in the instant case. Consignment and samples were not sealed by the Officer-in-charge of the police station and the Malkhana Register has also not been produced. Hence, the live link between the articles seized and the samples sent for chemical examination has not been established beyond doubt. Report of seizure was not made to superior. He accordingly, prayed for acquittal of the appellant.;