MD.MUMTAZ KHAN,J. - (1.) This appeal is preferred by the appellant assailing the judgment, order of conviction and sentence dated December 17, 1991 and December 18, 1991 respectively passed by the learned judge 9th Bench, City Sessions Court, Calcutta in Sessions Trial No. 1 of September 1991 arising out of Sessions Case No. 8 of 1990. By virtue of the impugned judgment appellant was convicted for commission of the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and was sentenced to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1 lakh in default to suffer rigorous imprisonment for 3 years more and the period of detention already undergone by the appellant was directed to be set off under the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) Prosecution case, in brief, is as follows: - On February 12, 1987 at about 11.35 hours, P.W.7 by producing the appellant at Burtolla P.S. along with 3 gms. of 'Heroin', made one G.D. Entry being No. 840 dated February 12, 1987 at the said P.S. stating that pursuant to source information he arrested appellant at about 11.25 hours from the crossing of Beadon Street and Bidhan Sarani having in possession of 3 gms. of 'Heroin' in 3 cellophane paper packets kept concealed in his shirt and accordingly he seized the same by a seizure list in presence of P.W.1 and P.W.2 for prosecuting the appellant for commission of the offence under Section 27 of the N.D.P.S. Act.
(2.) On the basis of the above G.D. Entry, P.W.7 himself started Burtolla P.S. Case No. 50 dated February 12, 1987 under Section 27 of the N.D.P.S. Act against the appellant and also took up investigation of this case and thereafter on completion of the investigation/enquiry he submitted enquiry report on January 16, 1989 under Section 21 of the N.D.P.S. Act against the appellant. Charge was framed on August 8, 1991 against the appellant under Section 21 of the N.D.P.S. Act and after the appellant pleaded not guilty to the charge, trial proceeded. Prosecution examined 7 witnesses and also produced and proved certain articles and documents and thereafter on completion of trial and after examining the appellant under Section 313 Cr.P.C. learned Trial Court passed the impugned judgment and order.
(3.) It is submitted by Mr. Debabrata Roy, learned amicus curiae, that the impugned judgment, order of conviction and sentence cannot be sustained in law as the mandatory provisions relating to search and seizure of the contraband article as also provisions of Section 42 as also Section 50 of the Narcotic Drugs and Psychotropic Substance Act had not been complied with in the instant case and there was also anomaly with regard to the weight of the seized article in between the Malkhana register (Ext.5), Seizure list (Ext.6), GDE (Ext.7), FIR (Ext.8) and the evidence adduced by the prosecution. According to Mr. Roy as per the Malkhana Register, forwarding report (Ext.4) and the evidence adduced by P.W.7, 3 gms. of 'Heroin' were sent for chemical examination but in the report of the expert (Exhibit 2) the samples sent for chemical examination has been described as 1.5085 gms. and there was also unexplained delay in sending the sample for chemical analysis which raised doubt about the prosecution story. It is also submitted by Mr. Roy that complainant had also acted as I.O. in the instant case which was not permissible under the law. According to Mr. Roy, Ld. Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned judgment and order of conviction and sentence.;