JUDGMENT :

DEBANGSU BASAK, J.

1. The appellant has assailed the judgement of conviction dated October 5, 2021 and the order of sentence dated October 7, 2021 passed by the learned Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, Murshidabad at Berhampore (Additional District Judge and Sessions Judge, 5th Court) in NDPS Case No. 7 of 2017.

2. By the impugned judgement of conviction, the learned judge has convicted the appellant under Section 22 (c) of the Act of 1985. By the impugned order of conviction, the learned judge has sentenced the appellant to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and in default to suffer further imprisonment for 6 months. The sentences had been directed to run concurrently.

3. Learned Advocate appearing for the appellant has submitted that, the appellant was denied a fair trial. He has pointed out that, the prosecution examined only 2 witnesses who were official witnesses. Prosecution did not examine any independent witness at the trial.

4. Learned Advocate appearing for the appellant has submitted that, apparently, a team of Narcotics Control Bureau (NCB) had participated in the raid. Apart from 2 officials, no other members of the team had been examined. The composition of the team had not been disclosed. Consequently, the appellant had been denied a reasonable opportunity of cross-examining such persons if they had been cited and produced as witnesses.

5. Learned Advocate appearing for the appellant has submitted that, the prosecution failed to produce the best witness at the trial. He has reiterated that, independent witnesses were not examined at the trial. He has referred to the list of witnesses submitted along with the complaint of NCB. He has contended that apart from 2 of the persons named in the list of witnesses, no other person was examined. The appellant therefore had been denied the opportunity to cross-examine the prosecution witnesses who were cited as witnesses and not produced at the trial.

6. Learned Advocate appearing for the appellant has submitted that, the officer lodging the complaint and the investigating officer were one and the same person. He has relied upon 2008 Volume 16 Supreme Court Cases 417 (Noor Aga vs. State of Punjab and Another) in support of his contentions.

7. Relying upon 2021 Volume 4 Supreme Court Cases 1 (Tofan Singh vs. State of Tamil Nadu) learned Advocate appearing for the appellant has submitted that, the statement recorded under Section 67 of the Act of 1985 cannot be taken into account for the purpose of convicting the appellant. The learned trial judge has acted in error of law in doing so.

8. Learned Advocate appearing for the appellant submitted that, prosecution witness (PW) 1 was authorised as the investigating officer as will appear from the endorsement in Exhibit 1. However, he was the seizing officer. PW 2 had claimed himself to be the investigating officer.

9. Learned Advocate appearing for the appellant has submitted that, PW 2 became the complainant on November 16, 2017 and the investigating officer on November 17, 2017. He has relied upon 2020 Volume 10 Supreme Court Cases 120 (Mukesh Singh Vs. State) in this regard.

10. Learned Advocate appearing for the appellant has submitted that, PW 2 as the investigating officer admitted in cross-examination that he did not examine any witness. Therefore, according to him, no investigation had been carried out by the investigating officer. Therefore, the appellant had been denied not only a fair trial but also a fair investigation. Consequently the appellant should be acquitted.

11. The learned Advocate appearing for the NCB has submitted that, seizure of narcotics had been made and proved. The narcotics seized had been established to be of commercial quantity.

12. Learned Advocate appearing for NCB has submitted that, the appellant had signed the seizure list as also the label on the narcotics seized. NCB had complied with the provisions of