Joymalya Bagchi, J. - (1.) Lower Court Records have been received. With the consent of the parties, the appeal is taken up for hearing dispensing with preparation of paper books.
(2.) The prosecution case, as alleged against the appellant and co-accused Umesh Singh @ Chhottu Kumar Chaudhury and Gorokh Nath Singh, is to the effect that on 13.6.2015 at about 2.05 hours S.I. Bijay Kumar Rai (P.W.1) received source information that one Tata Sumo vehicle carrying ganja was coming from Nishiganj side and going towards Bihar through Hindustan More. He diarized the said information as Ghoksadanga P.S. GDE No.448 dated 13.6.2015 and intimated such fact to his superior, O.C. Ghoksadanga Police Station, S.I., Prasanta Biswas, P.W.9 herein. Upon the direction of P.W.9, S.I. Bijoy Kumar Rai, P.W.1, Constable Ratan Roy, P.W.4, Constable Uttam Roy, P.W.6 and Constable Driver Amit Kr. Roy, P.W.8 left the police Station in Vehicle No.WB-64B-2071 and arrived at Hindustan More around 2.40 a.m. At 2.55 a.m., they found vehicle (Tata Sumo Vista) bearing No.74-AA/5506 coming from Nishiganj side. They intercepted the vehicle and found three persons inside the vehicle. The vehicle was driven by one Umesh Singh @ Chhottu Kumar Chaudhury. On being asked the accused persons including the appellant disclosed their identities. Upon searching the vehicle 17 packets containing substance suspected were found to be ganja. On interrogation the detained accused persons disclosed that the packets contained ganjas and they had purchased it from a village near Nishiganj last night and were carrying it to Bihar. They could not produce any valid document or licence justifying possession of the contraband. This incident was informed to Superior Police Officers, namely, P.W.9, Officer-in-Charge, Ghoksadanga Police Station and P.W.13, C.I., Mathabhanga Police Station. Thereafter, seizure was effected in presence of local witnesses who arrived at the spot at 3.30 a.m. viz., P.W.2, Pankaj Bhawmik, Bijan Ghosh, P.W.3 and P.W.11, Hira Chowdhury and the superior police officers. In their presence the packets were opened and the articles suspected to be ganja were weighed. Total weighment was found to be 168 kgs. Two samples of 100 grams each were drawn from each of the 17 packets. The sample packets were sealed and labelled in the presence of the Superior Police Officers and the local witnesses. The accused persons including the appellant were arrested and the seized alamats was produced before the police station. On the written complaint of P.W.1, Bijoy Kumar Rai, Ghoksdanga P. S. Case No.171 of 2015 dated 13.6.2015 under Section 20(b)(ii)(c) of the N. D. P. S. Act was registered against Umesh Singh @ Chottu Kumar Chaudhury, Goroknath Singh and Rajiv Kumar. In conclusion of the investigation charge sheet was filed against the appellant and two other accused persons. Charge was framed under Section 20(b)(ii)(C) of the N.D.P.S. Act. The accused persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 12 witnesses and exhibited a number of documents. The defence of the accused persons including the appellant was one of innocence and false implication. The accused person including the appellant examined themselves as defence witnesses. D.W.1 (Umesh Singh) deposed that he had a quarrel with the local police authorities near a petrol pump at Hindusthan More and the police authorities took him to the police station and falsely implicated him in the instant case. Similarly, Gorokh Nath Singh and the appellant deposed they had gone to 'Kamakhya Temple' and had been falsely implicated. After considering the evidence on record, the trial judge by impugned judgment and order dated 18.4.2017 and 20.4.2017 convicted the appellant and the other accused persons under section 20(b)(ii)(C) of the NDPS Act and sentenced them to suffer rigorous imprisonment for ten years each and to pay fine of Rs.1,00,000/- each and in default to pay the fine amount, to suffer further rigorous imprisonment for one year each. Although no appeal has been filed by Umesh Singh @ Chottu Kumar Chaudhury or Gorokh Nath Singh, the appellant has assailed the aforesaid judgment and order in the present appeal.
(3.) Learned Counsel appearing for the appellant argued that the mandatory requirements under NDPS Act for conducting a valid search have not been followed in the instant case. Interception of the accused persons with the consignment of ganja was not made in the presence of gazetted police officers who arrived at the place of occurrence after the accused persons have been apprehended. Hence, there is no compliance of the mandatory requirements of the provision of Section 50 of the N. D. P. S. Act. It is also submitted that the provision of Section 42(2) of the N. D. P. S. Act have not been complied with in the instant case. Independent witnesses viz., P.W.2, P.W.3 and P.W.11 did not support the prosecution case and the same is solely placed on the version of official witnesses. It is unsafe to base a conviction solely on the evidence of the official witnesses. He relied on Jagdish Vs. State of M. P., 2003 9 SCC 159, in support of such contention. It has also been argued that the Constable, P.W.4 was unable to identify the appellant as one of the person who was inside the vehicle carrying contraband articles. Hence, the appeal is liable to be dismissed.;