IMPORTANT POINTS
When Court ensured that the appellant is sufficiently and duly represented throughout the proceedings, there no need to issue any fresh notice to appellant and give him another opportunity to engage a counsel of his choice.
When the search officer himself is a gazette officer, compliance of section 42 is not necessary.

JUDGMENT :

Abhay Manohar Sapre, J.

(1) This appeal is filed against the final judgment and order dated 31.08.2004 passed by the High Court of Calcutta in C.R.A. No. 269 of 2003 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein and affirmed the orders dated 11.04.2002 and 12.04.2002 of the Special Judge, N.D.P.S. Act and VIth Bench, City Sessions Court at Calcutta in N.D.P.S. Case No. 11 of 1998 convicting the appellant herein under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as “the NDPS Act”) and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default, to suffer further rigorous imprisonment for one year.

(2) The case of the prosecution is as under:

Acting on an information received on 21.05.1998, a batch of officers of N.C.B., EZU, Calcutta led by a Gazetted Officer proceeded for New Sarat Lodge at 77/1A, Acharya Prafulla Chandra Road, Calcutta. After reaching there, the N.C.B. officers searched the room of the appellant herein who was staying in Room No.1 of New Sarat Lodge. The officers asked the appellant in writing as to whether he wanted to be searched in the presence of a Gazetted officer or a Magistrate and informed the appellant that one Gazetted officer was already with them and if he so desired, he might be searched by the said Gazetted officer as well.

(3) After search being done by the raiding party, a polythene packet containing brown coloured powder weighed 250 grams of heroin was recovered from the left side pocket of his wearing trouser. Thereafter, the appellant was arrested on the same day at 22.30 hrs.

(4) As a follow up action of the said recovery, one Anjan De was arrested from the Bidhan Nagar Railway Station at Calcutta by the said N.C.B. officers possessing 245 grams of heroin on 22.05.1998.

(5) During the trial, the prosecution examined eight witnesses and the defence examined nine witnesses.

(6) The learned Judge VIth Bench, City Sessions Court acting as the Judge, Special Court under the N.D.P.S. Act by his judgment and orders dated 11.04.2002 and 12.04.2002 found the appellant guilty of the offence punishable under Section 21 of the NDPS Act, convicted him thereunder and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to suffer further rigorous imprisonment for one year. However, the appellant was acquitted of the offence charged under Section 29 of the NDPS Act. So far as another accused-Anjan De was concerned, he was not found guilty of both the offences under Sections 29 and 21 of the NDPS Act and was accordingly acquitted thereof.

(7) Challenging the said order of conviction and sentence, the appellant preferred an appeal being C.R.A. No. 269 of 2003 before the High Court. The High Court, by impugned judgment and order dated 31.08.2004, dismissed the appeal filed by the appellant.

(8) Aggrieved by the said judgment and order, the appellant has filed this appeal by way of special leave before this Court.

(9) By order dated 17.09.2007, this Court released the appellant on bail.

(10) In this appeal, we find from the record that the appellant was originally represented by an amicus curiae -Mr. Mulkh Raj, who later stopped appearing for the appellant after leave was granted by this Court. Thereafter Mr. Abhijit Sengupta, learned counsel appeared for the appellant and bail was granted by this Court on 17.09.2007. On 10.12.2015, Mr. Abhijit Sengupta, learned counsel also filed application for discharge of advocate of the appellant. By order dated 15.12.2015, this Court allowed the application filed by Mr. Abhijit Sengupta and discharged him from acting as AOR on behalf of the appellant. The Registry served notice on the appellant by speed post but no one represented the appellant.

(11) When the appeal came up for hearing on 19.05.2016, in the interest of justice and fair play, we requested Mr. Aniruddha P. Ma