The court's decision emphasized the importance of proving conscious possession of contraband and addressed a technical error in the charge without causing prejudice to the appellant.

(Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH)

The Appellant has been convicted under Section 20(b) of the N.D.P.S. Act and sentenced to rigorous imprisonment for 15 years and fine of Rs.2,00,000/-, in default of which, further rigorous imprisonment for three years vide Judgment of conviction dated 25.07.2011 and Order of sentence dated 28.07.2011 passed by the 1st Additional District and Sessions Judge-cum-Special Judge, Araria, in Special Case No.13 of 2006/Trial No.18 of 2006.

2. The case of the prosecution, according to the Complainant Mukesh Kumar Bhardwaj, Inspector Customs (Preventive), Land Customs Station Jogbani (P.W.2), is that on 12.09.2006, a truck bearing Registration No.NAIKH-9336 was intercepted at Border Check Post, Jogbani by the Officers of the Customs and Appellant was arrested from the said truck. A secret cavity was found on the floor of the truck which was forcibly opened and from the same 116 packets of Ganja weighing 432.900 kilograms was recovered. The Appellant was interrogated by the officials and, thereafter, the prosecution report was instituted on 13.11.2006 after receipt of the F.S.L. Report dated 25.09.2006.

3. On going through the evidence of the witnesses, we find that P.W.1 Gopal Sharma is one of the persons on the point of seizure. He was an Electrician and independent witness who stated that on the date of occurrence, he saw some persons being interrogated and a secret cavity of the truck was forcibly opened, from which 116 packets of Ganja was recovered which was weighed and it was found to be 432.900 kilograms. He signed on the ‘Panchnama’ alongwith one Vijay Sah, which he identified, marked as Ext.1. He also signed on the seizure list alongwith Vijay Sah, which is marked as Ext.2. The statement of the Appellant was recorded in his presence, which is marked as Ext.3. Thereafter, an interrogatory was also put to the Appellant which he signed as Ext.4. In cross examination, surprisingly he gave a confusing statement with regard to the weight of the goods. He stated that one packet contained 5 kilograms whereas the second packet contained 4 kilograms and third packet contained 3 kilograms. What it means, one does not really know.

4. P.W.2 Mukesh Kumar Bhardwaj is the Complainant, who stated that on 12.09.2006 at about 11.00 A.M. he got secret information about a truck carrying Ganja at which a person present on the truck was intercepted and the Appellant was arrested. ‘Ganja’ was found in the secret cavity which was cut opened in presence of the witnesses packed in 116 packets weighing 432.900 kilograms. The same was seized of which seizure list was prepared in presence of the witnesses marked as Ext.1/1. He also prepared the seizure list which is marked as Ext.5. He drew the samples from the packets in lots of 1 to 40, 41 to 80 and 81 to 116 and sent it for testing. He proves the analysis report (Ext.6). He also proves the statements of the Appellant, which is Ext.7 and the interrogatory (Ext.4/1) on which there are signatures of the witnesses, accused, Superintendent and himself. He stated that the Appellant admitted his guilt whereafter he was produced before the Special Judge. He prepared the Prosecution Report (Ext.8). In cross examination, we find that he explained the entire procedure in terms of time as to when truck was seized and the articles recovered. He stated that the Ganja was divided in three groups of 5 to 6 packets each after tearing slightly of major packets but the sample was not collected from each packet.

5. P.W.3 Avinash Kumar Singh was the Customs Superintendent on the Land Customs Station Jogbani who corroborated about the recovery of Ganja from the secret cavity of the truck on which the Appellant was boarded. He stated that when the Appellant was questioned, he denied there being any good or contraband on the truck and he refused its checking before the Magistrate. However, when the secret chamber was forcibly opened, Ganja was recovered. They also found two