S.N.Mallick, J. - (1.) The instant appeal has been preferred by the appellant convict Babu Chakraborty (in jail) against the Judgment, order of conviction and sentence dated 14.9.90/15.9.90 passed by the learned Additional Sessions Judge. First Court. Burdwan in Sessions Trial No. 29 of 1990 Sessions case No. 16 of 1990 thereby convicting the appellant under section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to suffer rigorous imprisonment for 10 (ten) years and also to pay a fine of Rs. 1,00,000/- in default to suffer rigorous imprisonment for 2; (two and half years. The grounds taken on the memo of appeal are that the findings of the trial court regarding the guilt of the appellant are based on conjectures and surmises, that the trial court has not taken into consideration the major contradictions and inconsistencies in the evidence on the side of the prosecution regarding the search and seizure of the contravened articles, that the mandatory provisions of section 100(4) of the Code of Criminal Procedure and of section 49 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) relating to search and seizure have not been complied with, that the order of conviction is based on the highly interested and contradictory evidence of P.W.4 K.L. Mina and that the appellant has not been examined under section 313 of the Code in conformity with the provisions contained therein. It has been contended by Mr. De the learned counsel appearing for the appellant that the impugned Judgment, Order of conviction and sentence passed by the learned trial judge is not supported by the evidence on record. It has been emphatically contended by Mr. De that had the learned trial judge applied his judicial mind to the contradictory and inconsistent evidence on the side of the prosecution and had taken into consideration the fact that the mandatory provisions of the Act have not been at all complied with regarding search and seizure, he would not have arrived at a conclusion that an offence under section 21 of the Act has been proved against the appellant beyond all reasonable doubt and accordingly would not have convicted and sentenced him.
(2.) Before considering the submissions of Mr. De it would be helpful to have an idea of the prosecution case against the present appellant. On the basis of a secret information, Shri K.L. Mina (P.W.4). the then Additional Superintendent of Police, Burdwan accompanied by P.W.2 Shyamal Kumar Dutta and some other Police Officers held a raid on 5.5.89 at 21.45 hours in the house of the appellant at Rasulpur within P.S. Memari in the presence of two local witnesses and in course of such search in all 13 (thirteen) small packets containing in all 5.050 grams heroin were recovered along with one brass scale and three cigarette 'Rangta' (wrapping paper) and two pipes. It is the prosecution case that these articles were seized from the house of the appellant being produced by him in presence of the witnesses from his bed room. These articles were seized under a seizure list (Ext 7) prepared at the spot which was signed by the witnesses. The seized articles were sealed and labelled and the appellant was then arrested and produced before P.W.1 Sankar Mukherjee, O.C., Memari P.S. at 11-30 p.m. along with the seized articles. The fact was then entered in the general diary under Entry No. 275 dated 5.5.89 (Ext.l). The O.C. Memari P.S. took the appellant into custody and put him in thana hajat and informed the local O.C. Excise P.W.3. This was also entered in the General Diary under Entry No. 276 dated 5.5.89 (Ext.2). On the next day the O.C. Excise Department took charge of the accused which was also noted in the G.D. Entry No. 296 dated 6.5.89 (Ext.3. Thereafter, the Excise Department took up the case and started investigation and the appellant was forwarded to the local Magistrate and the seized alamat i.e. the heroin was sent to the Central Public Health and Drug Laboratory for chemical analysis on 12.5.89. The Chemical analyst's report was received on 28.7.89 (Ext. 9) along with the memo (Ext.10). It was reported that the seized substances contained heroin. Accordingly complaint was lodged against the accused under section 21 of the N.D.P.S. Act, by P.W.3 on which cognizance was taken and the appellant was tried by the court below after framing charge under the aforesaid section ending in his conviction and sentence as challenged in this appeal.
(3.) In order to come to a decision as to whether the impugned order of conviction and sentence passed by the trial court is according to law or not it is necessary to look into the special provisions contained in the relevant sections of the said Act and the evidence on record. The preamble to the said Act as amended subsequently emphasises the legislative purpose to make the law more harsh particularly for the illegal traffickers of Narcotic Drugs and Psychotropic Substances while implementing the provisions of the International conventions on Narcotic Drugs and Psychotropic Substances. Section 35 of the said Act lays down that in any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the Act charged as an offence in that prosecution. It has been explained there that the phrase 'culpable mental state' includes intension, motive, knowledge of a fact and believe in or reason to believe a fact. It has also been provided in sub-section 2 to the aforesaid section 35 that for the purpose of the said section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. Under section 37 under the non obstante clauses of section 37 every offence punishable under the said Act is cognizable and nonbailable.;