Non-compliance with the mandatory provisions of Section 42(1), 42(2), and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 vitiates the prosecution case and leads to the acquittal of the accused.

Asis Baran Mu'kherjee, J. : The appeal arises out of judgment of conviction and sentence passed by Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 3(11) of 1990 whereby the learned Judge convicted and sentenced the accused/appellant to suffer rigorous imprisonment for 16 years and to pay a fine of Rs. 1,50,000/- in default to suffer R. I. for 4 years under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act").

2. The prosecution case as appears from the G. D. Entry No. 31 dated 1.5.88, of Ekbalpur P. S. which has been treated as F. I. R. is that Sub-Inspector (section Z) on the. basis of a source information conducted a search at 18A, M. P. Road on that day between 14:00 hours and 14:30 hours in presence of two local witnesses. Seeing the arrival of police the accused/appellant who was present in his room tried to conceal himself but the police party caught hold of him, conducted search of his person and found 35 small paper packets weighing about 12 grams in all containing heroin powder wrapped-up in an ashcoloured handkerchief which was kept in his left trouser's pocket. A seizure list was prepared on the spot in presence of witnesses after observing all legal formalities. The room was also searched but no further incriminating articles could be found. The paper packets were numbered and kept in an envelope which was also sealed. On return to the P. S. Sub-Inspector recorded the seizure list and also took up the case for further investigation as per direction of the O. C. The accused was kept in the P. S. and seized articles were kept in P. S. Malkhana. A telephonic message was also sent to A. C. and also D. C. (DD. II) In-charge of the Narcotic Cell.

3. The seized articles were sent to the Central Public Health and Drug Laboratory, Government of West Bengal. On analysis the Government Analyst certified the contents to be heroin. After completion of investigation, charge-sheet was submitted. The learned C. J. M. concerned took cognizance of the offence and after supply of copy committed the case to the Court of Sessions.

4. During trial, the prosecution examined five witnesses. The defence, however, did not examine any witness or exhibit any document. The defence case is a plea of innocence. The learned Trial Judge on a consideration of the materials on record came to the conclusion that the accused/appellant was in possession of 35 packets of heroin without any legal authority to do so. Accordingly, he convicted and sentenced the accused in the manner as stated earlier.

5. Being aggrieved, the present appeal has been preferred alleging, inter-alia, that there was non-compliance of mandatory provisions of the Act by the Police .Officer, that the evidence of disinterested witnesses were not given any weight and the alleged seized articles were actually not sent to the Public Analyst. But the learned Trial Judge drew a distorted inference on the basis of materials which strictly speaking were not admissible in evidence.

6. The point for determination is whether the judgment of conviction and sentence of the learned Trial Judge can sustain.

7. The learned Advocate appearing for the accused/appellant in course of his argument drew our attention to different provisions of the Act in order to show that there was complete non-compliance of mandatory provisions of the Act rendering the prosecution without any legal basis. It was specifically argued that section 42 and section 50 of the Act, both of which are mandatory, have not at an been observed, as a result of which the conviction and sentence cannot sustain. In support of his contention he has relied on different provisions of the Act and also some observations of the Hon'ble Supreme Court and also of some other High Courts in this matter.

8. We have given our careful consideration to the submissions made by the learned Advocate appearing for the accused/appellant. We have also carefully scrutinized th