- (1.) This appeal has been preferred as against the judgment and order of conviction dated 06-01-2014 and 07-01-2014 as passed by the Learned Judge, 3rd Special Court, (N.D.P.S. Act), Burdwan in Special Case No. 30 of 2012 in which the present appellant was found guilty in respect of the charge punishable under Section 20(b)(ii)(B) of the N.D.P.S. Act of 1985 and was sentenced to suffer rigorous imprisonment for five years and also directed to pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months more.
(2.) The case of the prosecution can be stated in brief thus :- That the accused was found to be in possession of 3 kgs. of Ganja which was recovered by the police when the police went to search his house in connection with Burdwan P.S. Case No. 313 of 2012 dated 22-04-2012 under Section 379 of the Indian Penal Code. The FIR was lodged and Burdwan P.S. Case No. 327 of 2012 dated 28-04-2012 under Section 20(b)(ii)(B) of the N.D.P.S. Act was started The matter was investigated by S.I Subrata Kumar Ghosh (P.W.6) who during the course of investigation, visited the P.O., prepared the sketch map with index, recorded the statement in separate sheet, interrogated the accused etc. and also forwarded the sample to the chemical expert, collected the report and submitted the charge sheet accordingly. The case was transferred to the present trial court and before the learned trial court as many as six witnesses were examined and some documents were also marked as exhibits including the FIR, seizure list, sketch map with index and the report of the chemical examiner. The court after scrutinizing the evidence on record found the accused guilty and passed the order of conviction, I have already stated. The accused did not adduce any oral or documentary evidence and the plea of the accused before the trial court was that of false implication but unfortunately, the accused did not take up a positive case as to why he was falsely implicated in such a case. i) It was argued by Mr. Chattopadhyay arguing on behalf of the defence by taking me on the defence on record that the defence party while seizing the articles did not pest any level on the contravene articles; ii) That no public witness was called to be on witness to the search; iii) That when the contravene article was weighed by the witness no. 3 he deposed that the contravene article was actually 3.250 gram and this is a departure from the FIR where the I.O wrote " containing ganja weighing 3 k.gs in which 200 grams was taken for sample for chemical examination." Thus he submitted that when the exact quantity of the contravene article is in doubt the court cannot rely upon the prosecution case and; iv) that the disclosure statement allegedly made by the present accused appellant was not marked as exhibit before the learned trial court and as such the story of recovery as claimed by the prosecution cannot be accepted by this court and the trial court erred while exhibiting the same.
(3.) On this point he cited one decision of the Apex Court (Bhimappa Jinnappa Nagpur vs. State of Karnataka, 1993 AIR(SC) 1469) and one full Bench decision of this Court as (Subhas Bhattacharjee vs. State, 1985 CrLJ 1807) wherein both the courts held that if the statement recorded under section 27 of the Evidence Act is not produced, then the recovery point cannot be considered in favour of the prosecution.;