JUDGEMENT
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(1.)This appeal is against a judgment of conviction and order of sentence of the appellant passed by the Additional District & Sessions Judge, 6th Court, Barasat in connection with a case relating to offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, Act 1985 (the 1985 Act). The appellant has been sentenced to suffer rigorous imprisonment for a term of 15 years and to pay a fine of Rs.1,50,000/-, in default of which he is to undergo further imprisonment for 10 months. Charge against the accused is recovery of 880 grammes of heroin from his possession, without any valid document on 18th August, 2009. The prosecution case is that a raiding team of the Special Operation Group, C.I.D., comprising of altogether twelve members acting on the basis of source information apprehended the appellant on that date with a packet containing abovereferred quantity of a brown coloured powder kept in a bag, along with Rs.4,00,000/- in Indian currency and Bangladesh currency of 10,000, referred to as "Rs" in the seizure list at a location near Haridaspur bridge close to Petrapole, the Indian checkpoint at the Indo-Bangladesh land border in the district of 24-Parganas (N). Sample of the powder, when tested at the spot with the testing kit carried by the raiding party gave positive result for heroin.
(2.)The prosecution has made out a case that on receiving information from an undisclosed source that the appellant would receive a consignment of heroin from one Shasti Biswas of Bongaon on 18th August, 2009, the raiding team reached Haridaspur village on 18th August, 2009 at about 6.20 hours from Bhawani Bhavan, Kolkata. They were initially led by their source to the house of the appellant. The appellant was not available in his house and thereafter their source led them to Haridaspur bridge, which appears to be the entry point of Haridaspur village. At that location, at about 10.50 hours their source identified a man to be the appellant, Shyamal Biswas. He was carrying a pink coloured synthetic bag in his right hand. Another person at that time came in a motorcycle and there was exchange of packets between the appellant and the other person, who was also identified by the source as Shasti Biswas. The appellant kept the packet in the bag he was carrying. Said Shasti Biswas thereafter sped away towards Petrapole. The police team chased and surrounded the appellant. Thereafter, identity of the raiding persons, the credibility of information and the necessity for search was disclosed to the appellant by the raiding team and also to certain other persons described by the prosecution as "passersby". On being required to do so, the appellant had disclosed his identity, but when the appellant was asked about the bag, he had remained mum. Three of those persons, who have been described by the prosecution as "passersby", Debabrata Nandi, Subal Pramanik and Kartick Mitra were called, and later on were made seizure witnesses. The notice for commencement of search was issued thereafter, and according to the prosecution, the appellant was given liberty to be searched in presence of a Magistrate or any Gazetted Officer. In course of trial, it was deposed by the P.W.1, Tathagata Pandey, a sub-inspector of police posted with the S.O.G., who was part of the raiding team that in spite of his best efforts, he had failed to contact any Magistrate or other Gazetted Officer. He, however, could establish contact with Samarendranath Das, who was a Gazetted Officer and was an inspector with the S.O.G. itself. He happened to be "on route" to Bongaon area, and he had reached the place of occurrence. At about 11.05 hours, said Samarendranath Das had reached the spot and disclosed his identity to the local people as well as the appellant. The appellant was also informed of his right to search the persons who were part of the raiding party, which he declined.
(3.)The appellant was subsequently searched and one brown coloured packet, which was kept in a polythene packet and bundles of Indian and Bangladeshi currency notes wrapped in an old newspaper were recovered from the pink bag. Said Shyamal Biswas, being the appellant, according to the prosecution confessed then to the raiding team that the said packet contained heroin. A small sample of powder from the packet was taken out in presence of the witnesses and was tested on a kit which the raiding team was carrying with them and the test result was positive on heroin, showing change of colour. The packet weighed 880 grammes, which was measured in the weighing device carried by the raiding team, out of which two samples of 5 grammes each were taken out, which were separately packed. Indian currency notes seized, according to the prosecution were 275 in number, of denomination of Rs.1,000/- each and 250 in number having denomination of Rs.500/- each along with 10,000 Bangladeshi currency notes (referred to as "Rs" in the seizure list) in different denominations. The content of the packet, wrapping newspaper the currency notes and the two bags were also seized and on preparation of seizure list, a copy thereof was handed over to the accused/appellant. The seized articles were sealed and labelled on the spot in presence of the appellant and witnesses of seizure. The accused/appellant was thereafter arrested having failed to give any justification for possession of the contraband articles, and then the raiding party came to the Bongaon Police Station along with the accused and a written complaint was lodged there. One Tirthankar Sanyal (P.W.13), who at the material point of time was a sub-Inspector posted with the narcotic cell of the C.I.D., West Bengal has deposed during trial that he had sent one sample, upon obtaining leave of the Court, for chemical examination and on receiving the report of chemical examination, charge-sheet was filed. The report, prepared by a senior Scientific Officer, State Drug Control & Research Laboratory confirmed the sample as heroin. This report, dated 15th September, 2009 has been marked Exhibit-13.