IMPORTANT POINT
Recovery of contraband – Penal provisions of NDPS Act, 1985 prescribes very harsh punishment for offender and it is incumbent for prosecution side that mandatory procedural requirement to be followed by prosecution in such a case are to be strictly followed.

JUDGMENT AND ORDER (CAV)

Heard Mr. N.N.B. Choudhury, learned counsel for the appellant. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor appearing for the State of Assam.

2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been filed by the appellant, Md. Manirut Jaman @ Moni, impugning the judgment dated 27.07.2023 and order dated 02.08.2023, passed by the learned Sessions Judge-cum-Special Judge, Morigaon, Assam, in NDPS Case No. 71/2021, whereby the appellant was convicted under Section 21(c) of the NDPS Act, 1985 and was sentenced to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh only) and in default of payment of fine to undergo further imprisonment for 1(one) year.

3. The facts relevant for consideration of the instant criminal appeal, in brief, are as follows:

i. that on 28.09.2021, one Sri Mridul Hazarika, SI of Police had lodged an FIR before the Officer-In-Charge of Moirabari Police Station, inter alia alleging that on that day, at about 2:30 AM, he received an information through reliable sources that Md. Manirut Jaman @ Moni, who was also required in connection with Moirabari P.S. Case No. 398/2021 has stored huge quantities of suspected narcotic drugs in his house.

ii. On receipt of the said information, the first informant accompanied by the Officer-In-Charge of Moirabari Police Station, rushed to the spot after taking necessary permission from the Circle Inspector of Lahorighat. On reaching the house of the appellant, the informant and other police team found the appellant in his residence and on conducting search therein 13 numbers of Eskuf Codeine Phosphate Syrup were recovered from his possession.

iii. On receipt of the aforesaid FIR, Moirabari P.S. Case No. 398/2021 was registered under Section 21(c)/25 of the NDPS Act, 1985 and the investigation was initiated.

iv. Ultimately, on completion of the investigation, charge-sheet was laid against the above-named appellant under Section 21(c)/25 of the NDPS Act, 1985.

v. The appellant was arrested on the date of recovery of contraband from his residence, i.e. on 28.09.2021, and he faced the trial remaining in custody.

vi. On 15th December 2021, after hearing the submissions made by both the sides and after considering the materials on record, learned Special Judge Morigaon had framed charges, against the appellant, under Section 21(c)/25 of the NDPS Act, 1985. When the said charges were read over and explained to the appellant, he pleaded not guilty and claimed to be tried.

vii. To bring home the charges against the appellant, the prosecution side had examined as many as 6(six) prosecution witnesses.

viii. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 during which he has denied the truthfulness of the testimony of prosecution witnesses. He has also stated that he is innocent and police picked him up from his house stating that a warrant of arrest is pending against him. He has also stated that no search was made in his house on that day, when he was picked up and arrested. The appellant, however, adduced no evidence in his defence.

ix. Ultimately, by the judgment which is impugned in this appeal, learned Special Judge, Morigaon had convicted and sentenced the appellant in the manner as discussed in the paragraph No. 2 of this judgment herein above.

4. Before considering the rival submissions made by learned counsel for both the parties, let me go through the evidence adduced by the prosecution witnesses, during the trial, which is available on record.

5. PW-1, namely, Anowar Hussain has deposed before the Trial Court that he is the Government Gaonburah of Gariabori Pathar, Gariabori Gaon, and In-Charge Gaonburah of Durabnahi Gaon and Durabnahi Pathar. He has deposed that on 28.09.2021, at about 3:00 AM, the police personnel of Moirabari Police Station called him to the residence of the appellant and accordingly,