JUDGMENT:- S.P. Talukdar, J.: By the judgment and order dated 21st January, 2008, learned Judge, Special Court under the Narcotic Drugs and Psychotropic Substances Act, Barasat, North 24Parganas, convicted the appellant under Section 18(b) of the NDPS Act and sentenced him to suffer imprisonment for a period of 10 years and directed him to pay fine of Rs. 1 lakh, in default to suffer further imprisonment for a period of one year. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence, the convict, as appellant, approached this Court. Mr. Kabir, appearing as learned Counsel for the appellant, has sought to assail the said judgment on the ground that learned Court failed to appreciate the evidence on record in its proper perspective and there had been mis-appreciation of the relevant provisions of the NDPS Act. The case against the present appellant may briefly be summed up as follows:- Acting on specific information which was duly reduced to writing and after giving due intimation to the superior authority and obtaining movement order, a batch of officers of the Narcotic Control Bureau went to Barasat Colony More Bus stop on 30th June, 2002 at about 9 a.m. A person standing over there with a polythene bag near his feet was intercepted by the NCB officials. On being asked, the said person identified himself as owner of the bag. The bag was then searched in presence of two independent witnesses who were picked up from the onlookers. Dark brown coloured sticky material wrapped with polythene could be recovered from the said bag. It responded positive to the test of opium. Out of 2.750 kgs of such materials, samples in duplicate of 25 grams each were drawn and kept in separate packets. The rest was kept in another packet. All the packets were sealed and labelled. Notice under Section 67 of the NDPS Act was, thereafter, issued. The said person made a voluntary statement admitting his guilt. On reasonable belief that an offence had been committed under Section 8 of the NDPS, Act 1985 in connection with said 2.750 kgs gross brown coloured sticky substance believed to be opium and punishable under Section 18(b) of the NDPS Act, the said person, who disclosed his name as Raju Dutta, was arrested under Section 43 of the NDPS Act. On reasonable belief that an offence had been committed under Section 8 of the NDPS, Act 1985 in connection with said 2.750 kgs gross brown coloured sticky substance believed to be opium and punishable under Section 18(b) of the NDPS Act, the said person, who disclosed his name as Raju Dutta, was arrested under Section 43 of the NDPS Act. The learned Trial Court on the basis of the materials placed by the prosecuting agency framed charge under Section 18(b) of the NDPS Act. The present appellant, as accused person, pleaded ‘not guilty’ to the said charge and claimed to be tried. Prosecution in order to establish the guilt of the accused person examined as many as nine witnesses. Learned Trial Court after taking into consideration all relevant facts and materials and on the basis of the evidence on record held the present appellant guilty of the offence under Section 18(b) of the NDPS Act. Of the witnesses examined on behalf of the prosecution, P.W. 1 is an Officer of the Narcotic Control Bureau, who, on 8th November, 2002, lodged complaint before the learned Court in his official capacity. On being proved by him, the said complaint had been marked Exhibit-1. In cross-examination, he clearly stated that he had no personal knowledge about the case. P.W. 2 is another Intelligence Officer of the N.C.B. He, in his evidence-in-chief, sought to substantiate the allegations as made in the complaint. He clearly stated that the accused was offered, in presence of independent witnesses, to search the N.C.B. officials. He, however, declined. The bag, which was found lying near his feet, was searched and a black coloured sticky substance believed to be opium could be recovered from the said bag. P.W. 2 stated that there was a print on the said bag which read ‘Bharat Khadi Bhandar’, Hazarilal Market, N.S. Road, Mohan Bhatti, Raiganj. The black coloured substance as recovered from the bag responded positive to the test of opium. He deposed that from the sticky substance weighing 2.750 kgs. (gross), 25 grams each of sample in duplicate i.e., 50 grams in total were drawn. The said samples were kept in separate packets. According to P.W. 2, the two independent witnesses, owner of the materials as well as the seizing officer put their signatures on those two sample packets. He deposed that from the sticky substance weighing 2.750 kgs. (gross), 25 grams each of sample in duplicate i.e., 50 grams in total were drawn. The said samples were kept in separate packets. According to P.W. 2, the two independent witnesses, owner of the materials as well as the seizing officer put their signatures on those two sample packets. The rest was kept in a yellow coloured cotton bag, which was again duly sealed and labelled. The independent witnesses as well as the person from whom recovered and the seizing officer put their signatures on the label. Copy of the seizure list was handed over to the accused on receipt. Notice under Section 67 of the NDPS Act was served upon the accused thereby directing him to appear before the N.C.B. office at 4/2, Koreya Road, Kolkata- 700 017 on 30th June, 2002 at about 14.00 hrs. The said person went to the office and voluntarily made a confessional statement. The said person, being the appellant herein, was arrested at about 22.00 hrs. and was thereafter forwarded to Court. P.W. 3 is another Intelligence Officer of the N.C.B, who corroborated the evidence of P.W. 2 on all material points. P.W. 3 identified the copy of the notice under Section 67 of the NDPS Act as well as the voluntary statement made by the accused person and signed by him. The same had been marked Exhibits-2 and 3 respectively. The endorsement made by P.W. 3 with his signature, in page 7 of such recorded statement, had been marked Exhibit 3/1. P.W. 4 is the Assistant Chemical Examiner, who deposed that on 2nd July, 2002, the test memo along with the sealed sample packet were received by their laboratory. The identity of the sample packet was verified from the test memo as also from the facsimile of the seal and it was found in order and the seals were found intact. After obtaining the sample packet, P.W. 4 could find a poly pack containing the sample. On weighment, the sample was found to be 22.2 grams. The sample was analyzed as per standard method given in U.N.K.P. Manual. The sample was in the form of dark brown coloured pasty material. It satisfied the definition of opium as laid down in NDPS Act, 1985. Percentage of morphine on the sample on dry basis was 10.9 by weight. On weighment, the sample was found to be 22.2 grams. The sample was analyzed as per standard method given in U.N.K.P. Manual. The sample was in the form of dark brown coloured pasty material. It satisfied the definition of opium as laid down in NDPS Act, 1985. Percentage of morphine on the sample on dry basis was 10.9 by weight. After analysis, it could be found that the opium contains more than .2% by weight. After analysis, the remnant in the poly packet was again weighed and it was found to be 7.4 grams. P.W. 4 further stated that the test memo and sealed remnant were returned to N.C.B. office. P.W. 4 identified the report as Exhibit-4. He also identified the sealed envelope containing the remnants, which was sent by N.C.B. for analysis, being marked Mat. Exhibit-1. P.W. 5, who is also a retired N.C.B. Officer, further corroborated the evidence of P.W. 2 and P.W. 3 on all material points. Such evidence finds support in the evidence of P.W. 6, P.W. 7 and P.W. 8. P.W. 9 in his evidence in chief stated that on 30th June, 2002, one Sukanta Chakraborty was in charge of godown of N.C.B. He identified his handwriting and signature. 2.750 kgs of opium was received on that date and it was duly entered into the godown register of N.C.B. being No. 9/N.C.B./Kol-02. P.W. 9 proved the certified copy of the said entry and he also produced the original register before the Court. The relevant entry had been marked Exhibit-9. This is all about the evidence on record. Mr. Kabir submitted that in his evidence P.W. 2 clearly mentioned that the bag was near the feet of the accused person. He also mentioned that the accused was not carrying the same nor there had been any personal search of the accused. Referring to the evidence of P.Ws. 1, 2, 3, 5, 6, 7 and 8, Mr. Kabir submitted that there had been recovery of 2.75 kilo grams of opium. P.W. 2 deposed that two samples of 25 grams each were collected therefrom. But the chemical examiner, being P.W. 4, deposed that the samples received by him were not 25 grams and the test memo shows the same as 22.2 grams. Mr. Kabir submitted that there had been recovery of 2.75 kilo grams of opium. P.W. 2 deposed that two samples of 25 grams each were collected therefrom. But the chemical examiner, being P.W. 4, deposed that the samples received by him were not 25 grams and the test memo shows the same as 22.2 grams. Mr. Kabir then submitted that P.W. 6 deposed that he personally conducted search of the person of the accused and in this context, the apparent inconsistency in the evidence on record was referred to. Learned Counsel for the appellant further submitted that there had been no proper and effective search by any Gazetted Officer as would appear from the evidence of P.W. 7. It was then submitted that if 50 grams of opium as sample were taken out from the allegedly recovered 2.75 kgs. how could there be again 2.75 kilos of opium in the malkhana, as deposed by P.W. 9. Attention of the Court was invited to the fact that no independent witness had been examined. Mr. Kabir further contended that though the bag was near the feet of the accused person, as claimed by the prosecution witnesses, P.W. 6, contradicting the evidence of earlier witness, claimed that the accused was personally searched. It was further submitted that during examination under Section 313 of the Cr.P.C., the accused very well claimed that he was tortured by the officers of the Narcotic Control Bureau, who compelled him to write down the purported ‘voluntary statement’. Deriving inspiration from the Division Bench decision of this Court in the case between Assistant Director of Narcotics Control Bureau Eastern Zonal Unit and Dipak Poddar, as reported in 2008 Cri LJ 4520, it was submitted by Mr. Kabir that non-appearance of the two independent witnesses, who according to the prosecution were present at the time of interception of the present appellant as well as during the entire period of search, seizure and other formalities, causes more curses than kisses for the prosecution. Kabir that non-appearance of the two independent witnesses, who according to the prosecution were present at the time of interception of the present appellant as well as during the entire period of search, seizure and other formalities, causes more curses than kisses for the prosecution. It was held in the said judgment that ‘the Court is entitled to draw an adverse inference as provided in illustration (g) to Section 114 of the Evidence Act and come to the conclusion that the evidence of anyone of the said witnesses has been purposely withheld because if produced it would have been wholly unfavourable to the prosecution version.’ It was then submitted on behalf of the appellant that the purported voluntary statement leaves little scope for imagination and if read in its entirety, it would make the claim of voluntariness extremely hollow. The requirement of giving sufficient caution to the appellant/accused person before such statement is taken also does not appear to have been duly complied with. The Apex Court in the case between Sarju @ Ramu and State of U.P., as reported in MANU/SC/1413/2009, held: “It is now also well settled that the provisions of the NDPS Act being harsh in nature, the procedural safeguards contained therein must scrupulously be complied therewith.” Another Division Bench of this Court in the case between Md. Sarif and State of West Bengal, as reported in (2006) 1 CAL LT 196(HC), deriving inspiration from a decision of the Apex Court in the case State of Pubjab Vs. Balbir Singh, 1994 Cr LJ 3702(SC), held that possession of contraband article is the sine qua non for application of the provision with which the accused has been charged. In the case of Balbir Singh (Supra), it was observed: “Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent person is avoided and to minimize the allegation of planting or fabricating by the prosecution, section 50 is enacted.” It cannot be disputed that a search before a disinterested Gazetted Officer or Magistrate would impart much more authenticity and creditworthiness and would strengthen the prosecution story. If the said Gazetted Officer is of the concerned department who is vitally interested in the prosecution, the said valuable right would become illusory and a farce. The rules of natural justice which are sometimes used as ‘fair play’ or ‘fairness’ aim at securing justice or to prevent miscarriage of justice. The right of being searched before a Magistrate or Gazetted Officer is a valuable right of a person accused of an offence under the Act particularly in view of the severity of the sentence which will be impaired if the departmental Gazetted Officer accompanying the raiding party or involving himself in the investigation is held to take decision under Sub-section (3) of Section 50. Referring to the Apex Court decision in the case between State of Punjab and Balkar Singh & Anr, as reported in 2004 Cri LJ 3839, it was submitted by Mr. Kabir that it is the duty of the prosecution to prove conscious possession of the contraband article and failure to discharge the said duty must inevitably result in acquittal of the accused. While mentioning about the inconsistency in the evidence on record regarding the quantity of opium allegedly recovered as well as the quantity which was deposited with the department after taking two samples of 25 grams each, it was submitted by Mr. Kabir that failure on the part of the prosecution to explain the discrepancy in weight must result in acquittal of the accused person. In this context, reference was made to the decision of the Apex Court in the case between Rajesh Jagdamba Avasthi and State of Goa, as reported in 2004 (97) ECC 401. The Apex Court in the case between Raju Premji and Customs NER Shillong Unit, as reported in JT 2009(8) SC 193, referred to earlier observation of the said Court in the case between State of Punjab and Baldev Singh (Supra), which is reproduced as follows: “Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.” It is well settled that a confessional statement, if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources. On behalf of the respondent, learned Counsel referred to the decision of the Apex Court in the case between Pon Adithan and Deputy Director, Narcotics Control Bureau, Madras, as reported in 1999 SCC (Cri) 1051, in support of the contention that in absence of any complaint of threat and pressure made on production before the Magistrate or any complaint till recording of statement under Section 313 Cr.P.C., such a voluntary statement cannot be brushed aside. It was further submitted that minor inconsistency in the evidence on record regarding the weight of the sample would by itself not demolish the prosecution case. So far the present case is concerned, admittedly nothing was recovered from actual physical possession of the accused/appellant. According to the prosecution witnesses, a bag was found near the feet of the present appellant, who, according to them, identified himself as the owner of it. A person knowing that the bag lying near his feet contains contraband article will admit it to be its owner may not be an impossible proposition but is certainly improbable. But, then, why the Intelligence Officers of the NCB be disbelieved? Appellant even after being offered declined to search those officials of the seizing party and allowed them to search the bag. He disclosed his name and address and the printing on the bag emboldened the officials to connect him since he was also from Raigunge. It was about 9 A.M. in the morning that the mysterious bag was recovered and by serving notice under Section 67 of the NDPS Act, the accused was directed to attend office on 30th June, 2002 at 12.00 hours. It was about 9 A.M. in the morning that the mysterious bag was recovered and by serving notice under Section 67 of the NDPS Act, the accused was directed to attend office on 30th June, 2002 at 12.00 hours. And, he complied with such direction and after reaching there, voluntarily made a confessional statement. He appears to have ungrudgingly cooperated with the officials of NCB and going a step further, admitted his guilt in writing and that too, voluntarily. Once again, though not impossible, this is highly improbable. Question that naturally arises as to whether the Court, in such circumstances, should demand something more than well orchestrated evidence of departmental witnesses, who cannot straightway be categorized as ‘unbiased’ or, ‘impartial’. Mr. Kabir was quite justified in submitting that non-examination of independent witnesses and failure on the part of the prosecution to offer any explanation to the satisfaction of the judicial conscience of the Court in that regard makes the prosecution case suffer from an inherent wound. Such wound takes more serious shape when the evidence on record reveals the discrepancy in the weight of the samples as well as of the packet, which was deposited. P.W. 6 in utter defiance of the stand taken by the other vital prosecution witnesses stated that there had been personal search of the accused appellant. This goes a long way to create further confusion and controversy. If there had been recovery of 2.75 kgs of material and if two packets of 25 grams each are taken out of it as samples, how could the packet deposited with the department contain 2.75 kgs once again. It ought to have been 2.35 kgs. There had been discrepancy in the quantity of the sample received as well. In view of the inconsistencies and the infirmity, as referred to earlier, it becomes difficult, if not impossible, to accept that the present petitioner was in conscious possession of 2.75 kgs. of opium as contained in the bag which was recovered from near the feet of the accused person. Significantly enough, there had been no attempt to get the statement of the accused recorded under Section 164 of the Cr.P.C. In view of the fact that Narcotic Drugs and Psychotropic Substances Act quite justifiably prescribes severe punishment, there can be no escape from the duty to prove the case beyond all confusion and controversy. Significantly enough, there had been no attempt to get the statement of the accused recorded under Section 164 of the Cr.P.C. In view of the fact that Narcotic Drugs and Psychotropic Substances Act quite justifiably prescribes severe punishment, there can be no escape from the duty to prove the case beyond all confusion and controversy. Law in this regard, perhaps, demands dotting of every ‘i’ and cutting of every ‘t’. It cannot be denied that any lapse on the part of the prosecution in this regard may lead to a serious threat to the liberty of an individual. After all, liberty of a person is as important as his limb and life. True, credibility of testimony depends on judicial evaluation of the totality, not isolated scrutiny. Marginal mistakes and minor discrepancies cannot demolish the prosecution case. It also cannot be disputed that truth may sometime suffer from infirmity when projected through human process. But so far the evidence on record in the present case is concerned, the infirmity is so glaring and the discrepancies are so significant, we find it difficult to ignore the same. Considering all such facts and circumstances and having regard to the discussion as made above, we find it difficult to brush aside the grievances, as ventilated on behalf of the appellant. Accordingly, we hold that the charge under Section 18(b) of the NDPS Act could not be established beyond the shadow of reasonable doubt. So, the instant appeal, being C.R.A. No. 358 of 2008 is allowed. The judgment and order passed by the learned Judge, Special Court under Narcotic Drugs and Psychotropic Substances Act, 1985, Barasat, North 24-Parganas on 21st January, 2008 in connection with N-57 of 2002 be set aside. The appellant is hereby held not guilty of the offence under Section 18(b) of the NDPS Act and be acquitted accordingly. He be set free at once, if not wanted in connection with any other case. Seized alamat be confiscated to the State and the same may be dealt with in accordance with law. This consequently disposes of C.R.A.N. No. 1155 of 2009. Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Counsel for both parties as expeditiously as possible. I agree.