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CALCUTTA HIGH COURT
Nishita Mhatre and Samapti Chatterjee, JJ.
Nazir Ahmed —Appellant
versus
State of West Bengal —Respondent
C.R.A. No.569 of 2008
Decided on 3.12.2014
Counsel for the Parties:
For the Appellant:Mr. P.S. Bhattacharya, Advocate
For the Respondent/State:Ms. Kakali Chatterjee, Advocate
IMPORTANT POINT
Provision in Section 42 (2) of N.D.P.S. Act is mandatory one and non-compliance of it is never permissible.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20 and 42—Seizure of Ganja— Appeal against conviction—Section 42 (2) of N.D.P.S. Act was not complied with in present case—Provision in Section 42 (2) of N.D.P.S. Act is a mandatory one and non-compliance of it is never permissible—Independent witness was declared hostile by prosecution—No railway staff was made witness to seizure list and weighment although they were made in parcel office—Considering all materials on record, prosecution has miserably failed to prove to hilt that appellant is guilty of offence for which he is charged—Appellant acquitted. (Paras 16 to 19)
Result: Appeal allowed.
ORDER
Samapti Chatterjee, J.—The appellant preferred the instant appeal assailing the Judgment and Order of conviction passed in N.D.P.S. Case No.3 of 2005 under Section 20 of the N.D.P.S. Act by the Learned Judge, Special Court under N.D.P.S. Act, Jalpaiguri on 2nd July, 2008 convicting the appellant/petitioner for the offence punishable under Section 20 of the N.D.P.S. Act and as such he is convicted and sentenced to suffer Rigorous Imprisonment for 10 (ten) years and to pay a fine of rupees One lakh in default, to suffer further Rigorous Imprisonment for one year.
2. Put in a short frame the prosecution case runs as follows: On 09.04.2005 at about 8.35 hours S.I Rinchen Lama Bhutia received a secret information from one person over telephone who did not disclose his name stating that two persons are proceeding to Delhi from New Alipurduar Railway Station by Down Rajdhani Express with three pieces of luggage with them containing ganja. On getting such information S.I. R.L. Bhutia along with S.I. T.K. Patwari, C/249 Mangal Rai, C/27 Debananda Das, C/241 Badal Chandra Barman proceeded towards New Alipurduar Railway station. On arrival at New Alipurduar G.R.P.S. A.S.I Amitabh Sarkar was directed to prepare the force and also informed him about the reason for the visit. After going to the New Alipurduar Railway Station platform No.1 was thoroughly searched with the officers and force before arrival of Delhi Down Rajdhani Express and it was noticed that two persons with similar description of luggage as stated by the source were found waiting near the Railway over bridge of platform no.1. After seeing the police personnel they became restless and on seeing this S.I R.L. Bhutia directed his party to cordon the persons with the luggage kept in front of them.
Thereafter those persons were interrogated and they disclosed their names as Ajit Sarkar and Nazir Ahmed and stated that they are going to Delhi by Rajdhani Express. On interrogation they disclosed that ganja was there inside the luggage and they failed to produce any document in support of lawful possession of ganja. Option was offered to them regarding the search, the persons disclosed that they are willing to be searched in presence of a Magistrate. Then the accused person was brought to Alipurduar Junction G.R.P.S. At about 11.55 hrs after receiving message Magistrate arrived at G.R.P.S.. In his presence containers were opened and in total 55 kgs of ganja was found. Thereafter police seized the articles and lodged FIR in Alipurduar being G.R.P.S. Case No.04 of 2005 dated 09.04.2005 under Section 20 of the N.D.P.S. Act. On completion of investigation police submitted charge- sheet against the accused. Accordingly trial started and after completion of trial the learned Trial Judge convicted the appellant as aforesaid.
3. In order to prove the case prosecution has examined as many as six witnesses.
4. P.W.1, S.I of police stated in his evidence that on 09.04.2005 at about 8.35 a.m. he received a telephonic information that two persons were supposed to travel by Down Rajdhani Express possessing ganja with them. He was also informed that those two persons were carrying with them one suitcase and two side bags. He further deposed that he narrated the same in the G.D. Book of G.R.P.S. (Exbt.1) and then at about 8.40 hours on 9th April, 2005 he left the FRPS with force to ascertain the information at New Alipurduar Railway Station. After reaching there the P.W.1 along with his police force searched for some time and detected two persons assembled, as per the information received by him, under the bridge of platform no.1. He further deposed that they found one suitcase lying on the platform by the side of them and on it one red-black coloured side bag was also found. One man was also found with on black-coloured bag. He then cordoned the accused persons with force and ascertained from the accused person that they were about to proceed to Delhi by Down Rajdhani Express. He then enqui
