Calcutta High Court (Appellete Side)
Jaigan Bewa @ Jaigun Bewa vs The State Of West Bengal on 24 September, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
1 24.09.2019 Item No. 133 Ct. No.01 AD & Saswata CRAN 2969 of 2019 In CRA 378 of 2019 Jaigan Bewa @ Jaigun Bewa.
-vs-
The State of West Bengal Mr. Abhimanyu Banerjee ... for the appellant Mr. Sanjay Bardhan .. for the State In re: CRAN 2969 of 2019 This is an application seeking an order of suspension of sentence pending appeal against an order of conviction and sentence handed down for offence punishable under Section 21(C) of the NDPS Act.
Heard Learned Counsel for the appellant/applicant and learned Government advocate.
The prosecution case is that the appellant, Jaigan Bewa @ Jaigun Bewa was intercepted by the BSF and on search through women police officers, she was found to be carrying a mobile phone, certain items of ornaments and also a packet containing a brownish powder which was presumed to be heroin. That packet weighed 520 grams according to the prosecution. It is the prosecution case that upon questioning the first accused, she disclosed the name of another person who had entrusted the materials to her and that she was only a carrier. Two other persons were also intercepted. The two persons that is Saharul Mondal and Julfikar Ali Mondal were also arrayed as accused persons. However, Lallon @ Lalon Mondal was not traced out.
The trial Court acquitted Saharul Mondal and Julfikar Ali Mondal and convicted and sentenced Jaigan Bewa @ Jaigun 2 Bewa, the female who was found to be the carrier. For the purpose of this application for suspension of sentence, we have taken into consideration two relevant aspects of the evidence on record. The case of the prosecution was that a brown coloured heroin type powder weighing about 520 grams was recovered. Exhibit-4, the certificate of the analyst shows that there was only one packet which was received for analysis and it weighed 8.1469 grams as far as the weight with polythene cover is concerned and 7.9975 grams as the remnant weight. Therefore, the weight of the parcel that was received for analysis was 8.1469 grams. The prosecution case opens by saying that out of the 520 grams, two samples containing 10 grams each from the mother packet were taken as samples. The impugned judgment of the trial Court does not deal with any aspect relating to the sampling. It does not appreciate or speak of the place of sampling, method of sampling, the witnesses of sampling and the quantity of the samples going by the documentary or other legal evidence. The materials on record do not tend to indicate that there was cogent evidence before the Court below regarding due process of sampling before sending the substance for scientific investigation by analyst to the State Drugs Control and Research Laboratory of the Government of West Bengal. Another aspect of the matter is that the activity of search and seizure is said to have been effected contemporaneously with the detention of the appellant somewhere near the border and thereafter, going by the prosecution version, the appellant and the seized articles were taken to the nearby police station. Obviously, therefore, the activity of seizure is a matter which ought to have been recorded appropriately in whichever place it had happened. 3
While the learned Government advocate is justified in pointing out that prosecutions for offences punishable under the NDPS Act have to be examined with exceptional vigil, we are also clear in our mind that the quality of penalties prescribed and the restrictions including on bails ought to ensure that the trial and mode of establishment of case through legal evidence has also to be strictly scrutinized.
On the whole, we are satisfied that this is abundantly a fit case where the appellant can be granted an order of suspension of sentence on conditions.
Accordingly, the applicant, viz, Jaigan Bewa @ Jaigun Bewa be released on bail upon furnishing a bond of Rs.25,000/- with two sureties of Rs.12,500/- each, one of whom must be local to the satisfaction of the learned Chief Judicial Magistrate, Murshidabad with further condition that the appellant must appear before the Jalangi Police Station, Murshidabad once in a fortnight, i.e., on the 1st and 16th day of every month commencing from October 2019 and on further condition that she shall be present or represented as and when the appeal is taken up for hearing.
CRAN 2969 of 2019 is thus disposed of.
Department is directed to prepare paper books expeditiously.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after completion of all requisite formalities.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)