Joymalya Bagchi, J. - (1.) These appeals are directed against the judgment and order dated 26.02.2016 and 29.02.2016 passed by the learned Additional Sessions Judge-cum-Judge, Special Court under the N. D. P. S. Act, 6th Court, Barasat, North 24- Paraganas in NDPS Case No. N-90/2009 convicting the appellants for commission of offence punishable under Section 22(C) of the N. D. P. S. Act and sentencing them to suffer rigorous imprisonment for ten years each and to pay fine of Rs.1,00,000/- each, in default, to suffer simple imprisonment for five months more has been assailed.
(2.) Prosecution case as alleged against the appellants is to the effect that on specific intelligence input which was reduced in writing and intimated to a superior officer and after obtaining necessary movement order, a batch of NCB officers attached to NCB, EZU, Kolkata held ambush on 30.10.2009 at about 9.00 hours at Barrackpore-Talikhola, on Chakdha Bongaon main road within P.S. Gopalnagar, District 24-Parganas, North. At 13.45 hours, a person got down from a bus which was going towards Bongaon and stood near Lokenath Hardware and gift centre shop waiting for someone. Few minutes later, another person arrived in a motor cycle bearing registration No.WB-20J-6484 from Bongaon side. The person who had alighted from the bus took out a transparent polythene packet containing white coloured powder like substance from a black coloured hand bag and handed it over to the motor cyclist who kept the packet in a multicoloured nylon bag. The NCB officials encircled the said persons. On query the person who had alighted disclosed his name as Habib Mustafa Ahmed @ Fatik and motor cyclist disclosed his name as Bapi Das @ Amal Das. NCB officers intimated them that they had information that they were in possession of Alprazolam, a psychotropic substance. On further query, Habib Mustafa Ahmed @ Fatik handed over the black hand bag while Bapi Das handed over the multicoloured nylon bag to the NCB officials. The officers called two independent witnesses from onlookers to witness the search. One transparent polythene packet was recovered from both the bags respectively containing white powder like substance. Both of them also handed over their mobile phones and cash of Rs.10,000/- to the officers. The packets were weighed separately and were found to be 500 grams each. Small quantity from the packets was tested with the help of Field Drug Detection Kit and tested positive to Alprazolam, a psychotropic substance. On interrogation at the spot, the appellants admitted their guilt. The white powder like substance believed to Alprazolam and two mobile phones and cash of Rs.10,000/- being sale proceeds along with the motor cycle were seized. Two samples in duplicate of 5 gms. each were drawn separately from both the packets and kept in sealed polythene bags. The remainder of the contraband were also separately sealed and kept in two envelopes. Other items were also kept in the separate envelopes, sealed and labelled. All the sealed packets were signed by the witnesses and the appellants and also the seizing officers. Notices were issued upon Mustafa Ahmed and Bapi Das under Section 67 of the NDPS Act. They accompanied the officials to the NCB office where they tendered their voluntary statement before the said officials. The follow up action was taken against co-accused namely, Sanjit Biswas whose name had transpired from the voluntary statement of the appellants. On 10.12.2009 chemical analysis report showing presence of Alprazolam in both the samples were received and prosecution was launched against the appellants and one Sanjit Biswas. As Sanjit Biswas could not be apprehended, he was declared a proclaimed offender and the case was filed against him. Charge under Section 22(c) of the NDPS Act was framed against the appellants. In course of trial, prosecution examined six witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the judgment and order dated 26.02.2016 and 29.02.2016 convicted and sentenced the appellants, as aforesaid. Hence, the present appeals.
(3.) Mr. Manjit Singh, learned Advocate and Mr. Satadru Lahiri, learned Advocate appearing for the appellants argued that the prosecution has not been able to prove its case beyond reasonable doubt. Evidence of official witnesses are at variance to one another with regard to the place where the alleged contraband was seized, sealed and labelled. While it is the prosecution case that the contraband and the samples were seized, sealed and labelled at the spot by Debu Banerjee, P.W.3, there is no evidence to show that the latter was present at the spot. Hence, search, seizure and labelling of the contraband are under severe doubt. It is further argued that there is no reference to drawing of samples from the contraband at the spot in the seizure list or in the weighment chart, Exts.20 and 21 prepared in this case. Custody of the samples prior to despatch for chemical examination has not been proved. There is no signature of P.W.6 in the go-down register and P.W.4 claimed that the seizing officer had kept the samples in his custody. Difference in weight of the samples are noticed from the test report exhibited in the case throws doubt to the authenticity of the prosecution case. Statements under Section 67 of the N. D. P. S. Act were recorded after the arrest of the appellants and they had retracted from such statements during trial. Statement of Bapi Das was recorded by Debu Banerjee, who has not been examined in the instant case, while there is controversy with regard to the manner in which the statement of Habib Mustafa was recorded. Independent witnesses were not examined and in view of the contradictions and/or infirmities in the version of the official witnesses, the appellants are entitled to an order of acquittal. They relied on various authorities in support of their contentions.;