JUDGMENT [ENTITY], J.
1. This appeal at the instance of one [ENTITY] is directed against the judgment and order passed by the learned Additional Sessions Judge, Hooghly in connection with [CASE NUMBER].
2. The prosecution case was that on the basis of a secret information, the Intelligence Officer of Narcotic Control Bureau led by a Gazetted Officer intercepted [ENTITY] in front of booking counter of Bandel Railway Station at 17.45 hours on 30th March, 1988. [ENTITY] was found carrying a polythene bag in his left hand.
3. In the presence of officers of the Narcotic Control Bureau and local witnesses and after complying with all legal formalities, the polythene bag was searched and 200 grams of heroin was recovered from the said polythene bag and on the spot, the officer seized the said heroin under a seizure list in presence of local witnesses. Sample was drawn from the seized articles and thereafter sample and the remaining seized articles were sealed and labelled in presence of witnesses.
4. On the basis of information given by [ENTITY], the raiding party thereafter came to Samrat Hotel at Burdwan and as per information of [ENTITY], another 515 grams of heroin was seized from a room of that hotel where [ENTITY] was staying temporarily in presence of witnesses. Sample was also drawn from that seized heroin and thereafter other legal formalities were complied with regarding seal and label of the seized articles.
5. [ENTITY] thereafter was produced at the Calcutta office of the Narcotic Control Bureau where he gave a voluntary statement about his illegal possession and dealing with the seized articles.
6. Samples taken from the seized articles were duly sent for chemical examination and on receipt of chemical report and after completion of investigation, complaint was filed against [ENTITY] under [SECTION] of the [ACT].
7. During trial before the learned Additional Sessions Judge, prosecution side examined as many as eight witnesses including the complainant, members of the raiding party and one [ENTITY], Manager of the Samrat Hotel. The prosecution side also produced the seizure list, the seized articles and the confessional statement of [ENTITY] during trial.
8. The learned Trial Court on examination of the prosecution evidence both oral and documentary and after hearing both the prosecution and the accused person was of the view that prosecution side satisfactorily proved beyond all shadow of doubt that on 30th March, 1998 [ENTITY] was found in illegal possession of heroin which was seized both at the Bandel Railway Station and also at a room of Samrat Hotel, Burdwan. The learned Judge on such finding convicted [ENTITY] under [SECTION] of the [ACT] and sentenced him to suffer rigorous imprisonment for ten years and also to pay a fine of Rs. 1,00,000/- in default, to suffer rigorous imprisonment for a further period of two years.
9. Appearing in support of the present appeal the learned Advocate, first of all contends, that since the secret information on which the raiding party intercepted [ENTITY], was not produced during trial, it was not at all satisfactorily proved by the prosecution side on what basis [ENTITY] in a congested place was identified and hence, there is enough scope for want of satisfactory evidence from the side of prosecution to hold that appellant was falsely implicated in this case by the officers of the Narcotic Control Bureau.
10. The learned Advocate contends that it is now a settled position of law that before conducting a search, an accused person is entitled to be informed about his right of such search in presence of a Gazetted Officer or a Magistrate and unless there is ample evidence to satisfy the Court that accused person was duly informed about this right of search in presence of Gazetted Officer or Magistrate, the Court is bound to hold that there was non-compliance of the mandatory provision of [SECTION] of the Act and this non-compliance would not only vitiate the search and seizure but also render the entire trial bad in law. The learned Advocate contends that in this case although a notice was served upon the appellant, but, there is nothing on record to show that appellant was informed about his right of search in presence of a Gazetted Officer or Magistrate and naturally, there has been complete violation of the mandatory provision of [SECTION] of the Act.
11. The learned Advocate has seriously contended on the point of non-examination of two local witnesses who were reportedly present during search and seizure both at Bandel Railway Station and also at Samrat Hotel. The learned Advocate contends that although an attempt was made to explain the ground of non-examination of those local witnesses, but, on close scrutiny it would appear that the address of the local witnesses was almost incomplete and for that reason, no summon could be served on them and this deliberate omission on the part of the prosecution cannot exonerate the prosecution from the legal responsibility of examination of local witnesses and since the fact remains that only the interested witnesses of the Narcotic Control Bureau were examined in this case to support the prosecution case, the learned Trial Court was not justified at all to hold that reason for non-examination of local witnesses was properly explained and those omissions did not affect the prosecution case.
12. The learned Advocate has also mentioned that in the seizure list the place of seizure was not mentioned, no inventory was made and even the sample alleged to have been taken was not produced soon after arrest of the appellant.
13. The learned Advocate next contends that at the time of holding search and seizure within the room of Samrat Hotel no legal authorization was obtained by the raiding party and this had undoubtedly shown non-compliance of the provision of [SECTION] of the Act and since the provisions of [SECTION] are mandatory in nature, the resultant search and seizure is vitiated in law.
14. The learned Advocate on the basis of the points mentioned above concludes his submission that since no credible witness came forward to support the prosecution case regarding search and seizure, since from the record there is enough ground to hold that there was non-compliance of the mandatory provision of both [SECTION] and [SECTION] of the Act, the learned Trial Court was not justified in recording the order of conviction against the appellant on the basis of the uncorroborated testimony of some interested witnesses of the Narcotic Control Bureau and hence, the order of conviction and sentence are liable to set aside.
15. In order to substantiate the points taken by the learned Advocate for the appellant regarding non-compliance of provision of [SECTION] and [SECTION] of the Act, the learned Advocate has referred to the following decisions in the cases of [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT], [PRECEDENT], [PRECEDENT]; [PRECEDENT] and [PRECEDENT].
16. The learned Advocate representing the respondent of the present appeal has strongly refuted all the abovementioned points taken by the learned Advocate for the appellant. The learned Advocate for the respondent contends that in this case the raid was conducted by the Narcotic Control Bureau coming from Calcutta on the basis of specific information and it was not open for the appellant to challenge the information so received by the Bureau and during trial it was not the case of the appellant that he was not identified carrying the polythene bag in his left hand.
17. The learned Advocate submits that it has been the prosecution evidence as available from the witnesses to search and seizure that the incriminating article was not recovered from any hidden part of the appellant's body, but the incriminating article was recovered from a polythene bag carried by the appellant and thereafter from a bag kept inside the room of Samrat Hotel where the appellant was staying for the time being.
18. The learned Advocate contends that it is now the settled position of law that where the person was not physically searched, but, the bag or any container carried by the person was searched, the provision of [SECTION] of the Act would have no application and in this context, the learned Advocate has referred to the decisions in the case of [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT].
19. The learned Advocate contends that in this case when the incriminating article was not recovered after searching the person of the appellant, no question can be raised touching the provision of [SECTION] of the Act and hence, the point taken by the appellant in this regard has no substance at all.
20. The learned Advocate for the respondent next contends that in this case soon after recovery of the incriminating articles from the possession of the appellant, the appellant was taken to the Calcutta office of the Bureau and there the appellant made a voluntary statement confessing his possession over the incriminating articles and that confessional statement was produced during trial. The learned Advocate submits that where there is a confessional statement of the appellant and where such confessional statement was not challenged during trial, the question of non-examination of independent witnesses does not have any significance at all and in support of this contention, the learned Advocate has referred to the decision reported in the case of [PRECEDENT].
21. The learned Advocate submits that it is an undisputed position of fact that in case of search and seizure generally local people are reluctant to help the raiding party and even if they come forward, they do not disclose their actual address so that they may not face the Trial Court. The learned Advocate submits that the same thing has happened in this case also as it appears from record wherefrom it is available that both the local witnesses did not disclose their proper and correct address for which they could not be brought during trial. The learned Advocate submits that when the raiding party consisting of a responsible Gazetted Officer found the incriminating article from the possession of the appellant and when the same appellant led the raiding party to the hotel where in presence of the manager further recovery was made and when the manager has been examined on behalf of the prosecution, there is no reason to disbelieve the fact of search and seizure and that apart, the confessional statement of the appellant further lends support to the prosecution case regarding the search and seizure.
22. On the question of non-compliance of [SECTION] of the Act the learned Advocate contends that in this case the search was conducted by a Gazetted Officer inside the hotel room and that being the factual position, the question of non-compliance of [SECTION] would not arise and in his context, the learned Advocate has referred to the decisions reported in the case of [PRECEDENT] and [PRECEDENT].
23. The learned Advocate also submits that there may be some minor omissions on the seizure list, but, considering the evidence as a whole the Court is to take a pragmatic approach to come to a conclusion as to whether the prosecution side really satisfactorily proved the search and seizure and satisfactorily proved about the recovery of the incriminating articles from the possession of the appellant and if from evidence on record it is found that there is no ground to raise any question about the fact of recovery of the incriminating articles, minor omissions in the prosecution case may be ignored. The learned Advocate in this context has relied on a decision reported in the case of [PRECEDENT].
24. We have considered the submissions of both the sides in the background of fact and evidence on record and we have also considered the different decisions referred to both by the learned Advocate for the appellant as well as the learned Advocate for the respondent.
25. From the evidence on record, we find that the officers of the Bureau, on receipt of information came all the way from Calcutta to Bandel Railway Station and picked up the appellant in a congested railway station and thereafter found the appellant carrying a polythene bag in his left hand. It is available from evidence that the secret information was recorded at the office of the Bureau and after recording the movement of the officials, the raiding party came at the spot and picked up the appellant. Although during evidence the secret information was not produced and even the moment register of the raiding party was not shown, from the overall evidence of the officers of the Bureau, we have reason to hold that appellant was picked up on definite information and the polythene bag was found in his possession.
26. There was a legal controversy over the question as to whether the provision of [SECTION] of the Act would apply in a case where bag or a container was found in the hand of a person and no search was made in respect of the 'person', but, in respect of the bag or the container and now with the decision of the three-Judges Bench of the Hon'ble Supreme Court presided over by the Hon'ble Chief Justice in the case of [PRECEDENT] with [PRECEDENT], we have got the legal position settled that the provision of [SECTION] of the Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc. which he may be carrying.
27. Thus, in view of this decision of the three-Judges Bench of the Hon'ble Supreme Court, all the points taken by the learned Advocate for the appellant on the question of violation of provision of [SECTION] regarding this case have got no merit at all since we find from evidence undisputedly that the appellant was carrying a polythene bag and that bag was searched by the raiding party and the appellant himself was not subjected to physical search.
28. We find from evidence that following the disclosure of the appellant himself further quantity of heroin was recovered from a room of the Samrat Hotel and the Gazetted Officer who was a member of the raiding team, himself conducted the search in the hotel and seizure was made accordingly. In view of this factual position which was also not disputed, we find following the ratio of the decisions reported in the case of [PRECEDENT] (supra), [PRECEDENT] (supra) and [PRECEDENT] (supra) that in this particular case there was no violation of the provision of [SECTION] of the Act.
29. It has been seriously contended on behalf of the appellant that since no local witness came forward, the learned Judge was not justified in recording the order of conviction merely accepting the evidence of the interested witnesses of the Narcotic Control Bureau. We have examined the record of the learned Trial Court along with the seizure lists and we find that while signing on the seizure list, two local witnesses either intentionally or without any intention did not disclose their full address and for that reason alone, they could not be examined during trial.
30. In this particular case recovery was made in two parts, one part of the recovery was made at the Bandel Railway Station and the second part, which was more important since a large quantity of heroin was recovered from a room of the hotel and there the manager of the hotel was an witness and this manager during trial supported the prosecution case and his evidence was not shaken during cross-examination.
31. In this particular case from record we also get that the appellant himself gave a statement implicating himself regarding his possession over the incriminating articles and we do not get anything from record challenging the veracity of the statement of the appellant and in view of this statement of the appellant and in view of the statement of the manager of the hotel, we are of the view that the learned Judge was perfectly justified in placing his reliance on the prosecution evidence regarding the fact of recovery of the incriminating articles both at Bandel Railway Station and also at Samrat Hotel of Burdwan and in this context we also rely on the ratio of decision reported in [PRECEDENT] (supra).
32. Thus, having regard to the entire evidence on record and after considering the submissions of both the sides, we are of the view that notwithstanding the fact that there was no mentioning of the place of seizure on the seizure list and no inventory was made and even the sample was not produced soon after the arrest of the accused, the officials of the Narcotic Control Bureau actually picked up the appellant at Bandel Railway Station and found him in possession of a polythene bag and the heroin was recovered from that polythene bag and thereafter following the disclosure of the appellant another huge quantity of heroin was recovered from the room of the appellant. We are also satisfied from the evidence on record which has not been challenged by the appellant during trial that the incriminating article so recovered from the possession of the appellant was heroin.
33. Thus, having regard to the evidence on record and after considering all the points taken on behalf of the appellant, we are of the view that prosecution satisfactorily proved the charge under [SECTION] of the [ACT] against the appellant and hence, the learned Judge did not commit any mistake either in fact or in law by recording his conviction order as well as the order of sentence.
34. We, therefore, find no merit in the present appeal and the same is accordingly dismissed.
35. The order of conviction and sentence passed by the learned Additional Sessions Judge, Hooghly are hereby confirmed.
36. Send LCR along with a copy of this judgment to the learned Trial Court forthwith.
37. Send a copy of this judgment also to the Superintendent of Jail/ Correctional Home where the appellant is lodged for his information.
[ENTITY], J.
38. I agree.