Chakradhari Sharan Singh, J. – This appeal has been preferred by the sole appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC for short), putting to challenge a judgment of conviction dated 07.02.2020 and the order of sentence dated 10.02.2020, passed by the learned Additional Sessions Judge-VIth-cum-Special Judge, N.D.P.S. Act, Patna, in Special Case No.28 of 2015/ CIS No. 28 of 2015 (Arising out of DRI/LZU/PRU/718(II)/ENQ-24/2015), whereby the appellant has been convicted and sentenced as under: –

Cr. Appeal (DB) No. 6 of 2021

2. We have heard Mr. Ansul, learned counsel appearing on behalf of the appellant and Mr. Ranvir Kumar, learned Senior Standing Counsel appearing for the D.R.I.

3. It is the case of the prosecution, as disclosed in the forwarding report submitted by Pradeep Kumar Pandey (PW 5), an Intelligence Officer, DRI (Directorate Revenue Intelligence), Patna, to the Court of learned District and Sessions Judge, Patna, while forwarding the accused persons, namely, Rubul Hussain @ Rubul Hasan (the appellant) and Ali Hussain (a juvenile, aged 15 years) that based on certain specific information, the Officers of DRI, Patna, an Ashok Leyland truck bearing registration No.WB- 71A-1087 was intercepted on 25.09.2015 at 9 AM at Hathidah and had apprehended the said two persons from the said truck. A thorough search of the truck led to recovery of 72 packets containing 696.02 kg of substance believed to be ganja, concealed in a specially built cavity in the truck. The occupants, who were apprehended, said to have admitted before the DRI Officials that the recovered substance was ganja and the same was brought from Dimapur within their knowledge. The substance, believed to be ganja, the truck, packaging materials and some cash, according to the prosecution’s case, was seized under the provisions of Section 43(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) at 5 PM and the said two persons were arrested in exercise of power under Section 43(b) of the Act. A seizure memo and a panchnama were drawn. While forwarding the persons, so arrested by the DRI Officials, the Intelligence Officer mentioned in his said report dated 25.09.2015 that two sets of representative samples had been drawn and sealed in yellow envelopes marked as A-1, A-2, B-1 and B-2 respectively. A request was made to the court to order for dispatch of the samples to CRCL, Customs House, Kolkata, for testing.

4. We note, at this stage itself, that according to the case as disclosed in the forwarding report dated 25.09.2015, the samples of the seized articles were drawn by the DRI Officials themselves and not in the presence of a Magistrate as contemplated under Section 52-A(2)(b) of the Act. Subsequently, the said Intelligence Officer, Pradeep Kumar Pandey (PW 5), filed a complaint petition in the Court of learned District and Sessions Judge, Patna, against the appellant, after completion of investigation It transpires from the records that the other person, namely, Ali Hussain, who was forwarded to the court on 25.09.2015, came to be declared a juvenile. In the complaint petition, the complainant (PW 5) cited seven witnesses, five of them being officials of the DRI and two independent witnesses, namely, Ram Naresh and Ramesh Kumar, who, according to the complaint petition, were the seizure list witnesses.

5. It is the prosecution’s case, as narrated in the complaint petition, that based on an information received, a team of officials of DRI, Patna, had proceeded towards Hathidah and had mounted surveillance on Bhagalpur-