JUDGMENT

Joymalya Bagchi, J.—The appeal is directed against the judgement and order dated 21.3.2016 passed by the learned Judge, Special Court, NDPS Act, Nadia convicting the appellant for commission of offence punishable under Sections 21 and 22 of the NDPS Act, 1985 and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 50,000/-, in default, to undergo rigorous imprisonment for six months more.

2. Prosecution case, as alleged, against the appellant is to the effect that on 4.12.2014 between 13.45 hours and 14.25 hours one Sankar Chatterjee, Inspector of Police, DDI Nadia, CID, West Bengal (P.W.1) along with other officers had left for Palassey to work out secret information relating to illegal transaction in heroin at Mira Bazar, Palassey. At about 13.30 hours they arrived at the said place. Upon source information the police officers intercepted a person standing in front of a SBI ATM counter with a Hero Glamour red coloured motor cycle bearing registration no. WB 52 S/0086 with a blue coloured bag in his hand. The intercepted person disclosed his identity as the appellant. He was searched in presence of local witnesses and BDO, Kaliganj Block observing all formalities. The raiding party recovered two different packets, a sealed packet of Amul Spray containing 330 gms. of contraband suspected to be heroin and another being a sealed packet of Priya Gold Masala, Haldi Powder containing 100 gms. of contraband also suspected to be heroin. Upon seizure of the said contrabands, two samples of 5 gms. each were recovered from the said packets and were sealed and labelled. Thereafter, the appellant was arrested. The raiding party took the appellant along with the seized articles to Kaligange PS wherein PW 1 lodged FIR being Kaligange PS case no. 715/14 dated 4.12.2014 under section 22 of the NDPS Act. In course of investigation the seized samples were sent for chemical examination and upon receipt of chemical examiner’s report charge sheet was filed against the appellant. Charges were framed against the appellant for alleged possession of 430 gms. of heroin punishable under sections 21 and 22 of the NDPS Act.

3. In the course of trial, the prosecution examined as many as thirteen witnesses and exhibited number of documents.

4. The defence of the appellant was one of innocence and false implication. It was his specific defence that no narcotic substance had been effected from his possession and the independent witnesses have not supported such case of seizure. He also contended that there were wide and inexplicable discrepancies in the weight of the samples drawn from the seized contraband and the samples examined by the expert. The appellant, however, did not examine any witness of his own.

5. In conclusion of trial, the learned trial judge, by judgment and order dated March 21, 2016, convicted the appellant for commission of offence punishable under Sections 21/22 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him, as aforesaid.

6. Mr. Ayan Bhattacharjee, learned advocate appearing on behalf of the appellant argues that the evidence on record is at variance with the charge framed in the instant case. He submits that while the charge was one of illicit possession of “heroin”, the chemical examination report being exhibit-8 showed that the samples examined by the expert showed that they contained ‘codeine’ and ‘morphine’. No explanation was offered with regard to such variation in the nature of the manufactured drug allegedly seized from the possession of the appellant and that found in the samples examined by the expert. He further submits that the search and seizure in the instant case was not supported by the independent witnesses and that there was gross discrepancy in the weight of the samples drawn at the place of occurrence and those examined by the chemical examiner in the instant case. The aforesaid discrepancies go to the root of the prosecution case and render the p