JUDGMENT

Birendra Kumar, J. - The sole appellant Sanjay Kamkar @ Sanjay Kumar faced trial along with co-convict Ganesh Prasad in N.D.P.S. Case No. 04 of 2014 arising out of Brahmpur P.S. Case No. 76 of 2014. The appellant above named was found guilty for offences under Section 20(b)(ii)(C) and under Section 27 (A) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned trial Judge awarded 10 years rigorous imprisonment along with fine of Rs. 1 lac under both the heads aforesaid and in default of payment of fine simple imprisonment of three months was awarded. The sentences were ordered to run concurrently. The Judgment of conviction and order of sentence dated 22.02.2019 is under challenge in this appeal.

2. The prosecution case as disclosed in self statement of Mr. Sarvesh Kumar Singh (PW-11), the Inspector of Police (Brahmpur Police Station) is that on 27.03.2014 at about 09:15 A.M., confidential information was received that the appellant, resident of village - Nimej under the same police station is engaged in purchase and sale of ganja (opium) and is hiding ganja in his house. The informant lodged station diary entry no. 688 of 2014 and as per direction of his senior Police Officer took the services of the Circle Officer, Brahampur in the capacity of a Magistrate and proceeded along with other police personnel for village - Nimej. Local chaukidar Rajendra Paswan (PW-4) also accompanied with the informant and police party. They reached at the house of the appellant at 10:15 A.M. The house of the appellant was seized by the police personnel. The villagers assembled there and in presence of two witnesses Babloo Ojha (PW-1) and Ashok Yadav (PW-2), the appellant who was found there disclosed his name. Two others found there were Shatrughan Kumar and co-convict Ganesh Prasad. The appellant was informed that the police has to search the house as the police has information that ganja is kept there. The appellant was also informed about his right to be searched in presence of the Magistrate as contemplated under Section 50 of the Act. Thereafter, in presence of Mr. Shushil Kumar Upadhyay, the Circle Officer and the two independent witnesses, the person of the three accused named above was searched. From possession of the appellant, a mobile phone was recovered, from possession of co-convict Ganesh Prasad, a mobile phone and 100 grams of ganja was recovered and from possession of co-accused Shatrughan (who was found juvenile and his matter was sent to the Juvenile Justice Board), a mobile and 100 grams of ganja was recovered. Besides aforesaid, from the house of the appellant, 29.500 Kg of ganja was recovered. Samples from all the packets of recovery was taken out and sealed in three envelops. Thereafter, the seized narcotics were also sealed. The witnesses above named and the available Magistrate signed on the seized articles and sample packets. Since the appellant had no valid license for keeping ganja in commercial quantity, the appellant and others were booked in the case.

3. After investigation, the police submitted chargesheet and accordingly the appellant faced trial along with co-convict Ganesh Prasad for the offences stated above and were found guilty.

4. Learned counsel for the appellant contends that the seizure list witnesses and independent witnesses i.e. PW-1 Babloo Ojha, PW-2 Ashok Yadav and PW-3 Basant Jaiswal have not supported the prosecution case. The prosecution has failed to establish that the place of recovery belongs to the appellant and in absence of any evidence that the appellant is owner of the place of recovery, it cannot be alleged that the recovered narcotic was of the appellant. Reliance has been placed on the judgment of the Hon'ble Supreme Court in Mohd. Alam Khan V. Narcotics Control Bureau and Another, (1996) CriLJ 2001. Learned counsel for the appellant next contends that there is complete non-compliance of the requirement of Section 42(1) and 42(2) of the N.D.P.S. Act. Nothing has be