- (1.) This appeal has assailed the judgment and order dated 30th September, 1999 passed by the learned Additional Sessions Judge, Hooghly convicting the appellant under Section 21 of the Narcotic Drug and Psychotropic Substance Act, 1985 in N.D.P.S. Case No. 5/98 and sentencing her to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for a further period of 2 years.
(2.) The factual matrix leading to the filing of this appeal is as follows :- That on 11th May, 1998 after receiving secret information the Intelligence Officer, Narcotic Control Bureau along with other Officers including a lady Sepoy cordoned the appellant's house at 14, Bazar Road, Rishra, Hooghly at 17 hrs. The Officers knocked at the door, the appellant is said to have come out of her house. When she was questioned about her identity the appellant disclosed her name as Fatima Bibi. The Officers also stated their identity as N.C.B. Officers and expressed their intention to search the premises including the appellant's person on having secret intelligence report that she was dealing with Heroin. The appellant was given an option whether she liked to be searched by the raiding party before a Magistrate or a Gazetted Officer. But, she desired that the search may be conducted by the raiding party in presence of a Gazetted Officer who all along was present with them. The search was conducted by the lady Sepoy. From the house of the appellant, the lady Sepoy took out a polythene packet containing brown colour powder believed to be Heroin from the appellant as it was kept inside her blouse. The lady Sepoy handed over the polythene packet to the Seizing Officer from which a small quantity was taken out for the purpose of holding a test by thetes kit. The recovered brown colour powder was duly weighed and it was found to be 20 grams in presence of two independent witnesses and the appellant. The seizure was effected under Section 42 of the N.D.P.S. Act. The respective sample in duplicate of 5 grams each was also drawn in present of the witnesses who has signed not only in the Seizure List but also on the sealed packet. The appellant also put her L.T.I. on the Seizure List as well as on the sample packet. A copy of notice was given under Section 67 of the Act to her. On the basis of such complaint a case was initiated against the appellant under Section 21 of the N.D.P.S. Act. The charges have been framed after recording the statements of the witnesses who were, subsequently, cross-examined by the accused/appellant. The learned Additional Sessions Judge-cum-Special Judge on considering the evidence on record had, however, inclined to record an order of conviction and passed sentence as stated above.
(3.) Mr. Chatterjee, learned Advocate appearing for the appellant has brought to our notice that the judgment is unsustainable and unsupportable in law inasmuch as there was failure of compliance of the mandatory requirement of Section 42 of the N.D.P.S. Act. It has also been submitted that the prosecution had significantly failed to observe the requirement as required under Section 50(4) of the N.D.P.S. Act.;