Shyam Kishore Sharma and Akhilesh Chandra JJ.

1. The sole appellant has preferred this appeal against the judgment of conviction and sentence dated 26.03.2007 and 30.03.2007 respectively passed by 1st Additional Sessions Judge, Muzaffarpur in Trial No. 72 of 2006 whereby he was found guilty under Sections 20(b)(ll)C of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as "the NDPS Act") and he has been convicted thereunder and has been sentenced to undergo rigorous imprisonment for 12 years.

2. The complainant Sanjiv Kumar (P.W.3) lodged a complaint to the extent that on 28.08.2005 he received an information that a truck bearing registration No. WB-03A/3791 alongwith occupant of the truck Sri Dev Nandan Rai is present near Kanti, Muzaffarpur at N.H.28. The custom officials formed a team. They proceeded and intercepted the said truck. The driver of the said truck namely, Dev Nandan Rai was there. The truck alongwith said driver was brought to the Customs Divisional Office, Imlichatti, Muzaffarpur in presence of two independent witnesses. During search of the driver, no objectionable substance was found from his person but from the search of the said truck, a cavity was found in which 81 Kgs. of ganja worth Rs. 1,62,000/- was recovered. That cavity was in the ceiling of the cabin of the truck in the back side of the middle portion. The statement of the accused- appellant was recorded on 28.08.2005 before two independent witnesses wherein the accused confessed that the recovered ganja was purchased by him from one Md.Salim (not put on trial) and at his instance, goods (ganja) were loaded on the truck near Manokamna Mandir, Raxaul. The driver showed ignorance about the address and other antecedents of Md.Salim. He further stated that ganja was to be carried upto Fatuha, Patna and it was to be handed over to Sri Pratap Rai (not put on trial), a resident of village Jethuli, P.S.Fatuha, Patna. He further confessed that he was doing this for gain of Rs.8,000/-. The recovered ganja and the truck were seized under Section 42 of the NDPS Act for violation of provisions of Section 8 of the NDPS Act. The said statement of the accused was recorded on 28.08.2005 by Superintendent (Prev.), Customs Division, Muzaffarpur under Section 67 of the NDPS Act. He was arrested on the reasonable belief that he is liable to punishment under Sections 20 and 23 of the NDPS Act for his conscious involvement in purchasing and carrying ganja recovered from the cavity made in the ceiling of the cabin of the truck which was subsequently seized on 28.08.2005 and on the following day accused was forwarded to judicial custody. Inquiry/Investigation was taken up. Sample of ganja was sent for chemical analysis to the Government Opium & Alkaloid Works Ltd., Gajipur and in the test report, it was confirmed that seized goods was ganja.

3. The complaint (Ext.3) has resulted in the present case.

4. Cognizance under Sections 22 and 23 of NDPS Act was taken and thereafter Trial Court framed charge under Section 20(b)(ll)C of the NDPS Act and the same was explained to the accused-appellant who pleaded innocence. So the trial proceeded.

5. The defence of the accused-appellant was that he was never caught with the seized goods, rather seizure was from another person who was let off and he has been falsely implicated.

6. In order to substantiate the charge, the prosecution has examined P.W.1 Shailesh Kumar Srivastava, Superintendent Customs, P.W.2 Shivendra Satyarthi, Inspector Customs, P.W.3 Sanjiv Kumar, Inspector Customs (the complainant), P.W.4 Lakshmi Choudhary, Inspector Customs, P.W.5 Ganesh Ram, Havildar, Customs, P.W.6 Sanjay Kumar Gupta, another Havildar, Customs and P.W.8 Shyam Kumar, Electronic Mechanic. P.W.7 Shailesh Kumar Srivastava, Superintendent Customs was examined as P.W.1 but subsequently, his evidence as P.W.1 was expunged and the deposition of witnesses were renumbered. P.W.3 Lakshmi Choudhary has not supported t