- (1.) This appeal is directed against the judgment dated 31.8.1999 passed by the the learned Special Court, Murshidabgd, Berhampore, in N. D. P. S. Case No. 25/91 convicting the appellant under section 20(b)(i) of the N. D. P. S. Act and accordingly sentencing him thereunder to suffer rigorous imprisonment for a term of three years and to pay a fine of Rs. 10,000/ - and in default to suffer R. I. for further two months.
(2.) In view of short question of law involved in this case, detailed examination of the evidence on record is not required. Therefore, only such facts are being stated in this judgment as we consider necessary for disposal of the appeal on the short question of law agitated by the learned Counsel for the appellant. The prosecution case in short is that acting on specific information, a team of officers of the Narcotic Control Bureau, Calcutta along with other Officers of the Customs Department, Berhampore, led(sic) by Superintendent of Customs (Preventive), Calcutta raided the residence cum- business premises of the appellant situated at 39, Pikhana Road, Ranibagan, P. S. Berhampore on 28.4.89 at about 1 P. M. It is the further case of the prosecution that during such search of premises. of the prosecution that in presence of the appellant himself and other witnesses 5 packets were recovered and seized containing Cannabis in almost dust form. They also recovered a plastic bag containing some quantity of Ganja etc. and an amount of Rs. 11,000/ - in Indian currency. Total quantity of the Ganja so seized was about 25 Kg. and 500 grams. The appellant failed to produce any document to justify possession of the aforesaid contraband drugs. The samples drawn from the sized Ganja were sent for chemical analysis upon due compliance with, requirements of law. Chemical Examiner upon analysis of the said samples found the same to the Ganja Upon conclusion of the Trial of the case the appellant was convicted and sentenced as already stated.
(3.) Mr. Sekhar Bose, the learned counsel for the appellant contended that admittedly search was commenced on the basis of some information and in course of such search of the premises of the appellant the aforesaid quantity of Ganja was recovered and seized after preparing the seizure memo. This search and seizure took placed during noon time which commenced at or about 1 P. M. Before commencing such search under the provisions of the N. D. P. S. Act, the searching partner Officer did not reduce the information in question into writing as required by or under the provisions of sub-section (1) of section 42 of the N. D. P. S. Act. It is undoubtedly true that sub-section (1) of section 42 of the Act, inter alia, requires that whom the Searching Party acting upon any information decides to make search/seizure etc. under the provisions of the N. D. P. S. Act, they are required to reduce such information into writing provided such search/seizure is conducted between Sun-rise and Sun-set. It is the admitted position in this case that search and seizure etc. were commenced at or about 1 P. M. and was concluded long before the sunset and therefore the aforesaid requirement of sub-section (1) of section 42 to reduce information into writing before commencing the search and seizure are clearly applicable in the instant case. It could not be disputed by the learned Counsel for the respondents that the information was not reduced into writing before commencing such search/seizure.;