1. This is an appeal under Section 374 (2) of the Cr.PC against the judgment and order, dated 10.08.2017, passed by the learned Special Judge, Dhubri in Special Case No. 16/2015 convicting the accused-appellant under Section 21 (b) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) and sentencing him to rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 50,000/- with a default clause.

2. The fact leading to the case is that the accused-appellant, Noor Ali was found possessing 90 bottles of Eskuf Cough Syrup and 32 nos of Spasmo Proxyvon Capsules while his house was searched by the SI of Police Lalhari Sharma of Gauripur Police Station on receipt of secret information. Suspecting the accused to have possessed the narcotic drugs, the SI of Police aforesaid lodged the FIR with the Gauripur Police Station which was registered as FIR No. 123/2013 on 01.04.2013 under Section 22 of the NDPS Act.

3. After investigation was completed as well as after obtaining the report of the Forensic Science Laboratory in respect of the contents of the seized articles, charge-sheet was laid against the accused-appellant under Section 22 of the NDPS Act.

4. After exhausting all the required formalities, the trial commenced for charge under Section 22 (b) against the accused-appellant.

5. In this case, the prosecution examined as many as 8 (eight) witnesses whereas the defence examined none.

6. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.PC and in his such statement, he is heard denying the allegation made against him by the prosecution.

7. I have scanned the evidence on record. I have also heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. F.U. Borbhuiya, learned counsel for the accused-appellant as well as Mr. B. Sarma, learned Additional Public Prosecutor, appearing for the State respondents.

8. During the course of hearing, the learned senior counsel for the accused-appellant has raised two points to bring home that the judgment of the learned trial court convicting and sentencing the accused-appellant is not based on evidence on record and rather it is perverse to the evidence on record. The first point he has raised is that the contraband recovered from the possession of the accused-appellant is of smaller quantity covered by Section 21 (a) of the NDPS Act and that the learned trial court did not consider the Forensic Science Laboratory report to find out the quantity of contraband found in the sample examined by it. Had the quantity of contraband, found on examination of the samples, being considered by the learned trial court, the learned trial court would have found that it is of small quantity and therefore covered by Section 21 (a) of the NDPS Act. The second leg of argument by the learned senior counsel for the accused-appellant is that the sample of the contraband seized were not produced in the Court physically so as to substantiate the seizure made by the Investigating Agency from the accused-appellant and thus he has referred to the decision of the Honble Supreme Court in the case of Noor Aga Vs. State of Punjab and Another, reported in (2008) 16 SCC 417, particularly paragraphs 96, 100 and 101 thereof which this Court would refer after a while. Learned senior counsel for the accused-appellant has further submitted that the seizure witnesses did not support the prosecution case.

9. For the decision on the first point raised by the learned senior counsel for the accused-appellant, I have visited the evidence on record.

10. PW4 is the Forensic Science expert and he has exhibited the forensic science laboratory report as Ext-4. I have perused the Ext-4 available in the record of the learned trial court.

11. The evidence of the PW4 coupled with Ext-4 makes it appear in respect of the Eskuf Cough Syrup as follows :-

"Total 90 bottles each 100 ml were seized (as per seizure list)

In 2 bottles