JUDGMENT AND ORDER :

This is an appeal from jail against the judgment and order dated 29.04.2015, passed in N.D.P.S. Case No.8 of 2014 by the learned Special Judge, Cachar, Silchar, convicting the accused/appellant under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”) and sentencing him to RI for 10 (ten) years and fine of Rs.20,000/-, in default, RI for another 2(two) years.

2. The facts of the case is that on 14.5.2014, Sub-Inspector of Police-Faizur Rahman, Sonai Police Station , Cachar, Silchar, received information from reliable sources about the presence of a drug smuggler, namely – Md. Mufuz Ahmed, at Sadhin Bazar locality under Sonai Police Station and, he immediately communicated this information to the C.I.(E) Sonai. Then, on being authorized by the said C.I.(E) Sonai, he along with S.I. of Police – R.P. Rongmai, UBC Jakir Hussain Borbhuiya and one section of police battalion, rushed to the spot and conducted search on the body of the aforesaid Mufuz Ahmed. During such search, 18 nos. of small containers containing brownish white coloured powder, suspected to be heroin, were found from his possession, which was seized as per the seizure list in presence of the witnesses. Each of the seized containers contained 0.52 grams suspected to be heroin powder. Thereafter, he lodged FIR against the aforesaid Mufuz Ahmed with the Sonai Police Station, which registered a case being No.73/14 under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. During the course of investigation, sample of the seized containers were sent to examination by the Forensic Science Laboratory, as per laid down procedure and the report of forensic science examination showed positive test for heroin, the percentage of which was around 90%.

4. On completion of the investigation, after observing necessary formalities, charge against the accused was framed by the learned Special Judge, under Section 21(c) of the NDPS Act, to which the accused appellant pleaded innocence.

5. After completion of recording of evidence of 4(four) witnesses, including the forensic expert and the investigating police officer, statement of the accused appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied the accusation levelled against him. The accused appellant did not adduce any defence evidence.

6. I have heard Ms. PB Bordoloi, learned Amicus Curiae and Mr. NJ Dutta, learned Additional Public Prosecutor, Assam, for the respondent.

7. P.W.1, Md. Muazzan Hussain Barbhuiya, is found to have stated in his evidence that, at about 2.30 P.M., the accused was found in the Sadhin Bazar and, on suspicion, he was detained. He was searched. Before search, he was asked whether he wanted to be searched before a Magistrate, to which the accused appellant answered in the negative. Thereafter, while he was searched, 18 nos. of plastic containers, containing suspected heroin, were recovered from his left pocket. They were seized. The seizure list was prepared at the place of occurrence. Samples in 9(nine) packets from the seized suspected drugs were taken. The seized suspected drugs were weighed by weighing instruments. They were found to have contained 300 grams of suspected contraband. P.W. 1 has exhibited Ext.1, as the seizure list. He has proved the seizure list. After seizure was carried out, the accused was taken to the police station along with the seized articles.

During his cross-examination, this witness is found to have denied that he did not state before the investigating officer that the seized suspected contraband were found in the left pocket of the accused appellant.

8. During the course of argument, the learned Amicus Curiae has submitted that there is violation of the provisions of the NDPS Act, regarding the search and seizure. The further argument is that the search was made on the accused appellant before arrival of the police.

9. It appears from the com

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