Possession under the NDPS Act requires substantive evidence directly linking the accused to the contraband, with inadmissibility of confessions made to officers under specific provisions of the Evidence Act, warranting acquittal.

JUDGMENT :

RAJEEV RANJAN PRASAD, J.

1. Heard learned counsel for the appellants. No one appears on behalf of the respondent.

2. The present appeal arises out of the judgment of conviction dated 09.12.2020 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 14.12.2020 (in short referred to as the ‘impugned order’) passed by the learned Additional Sessions Judge-XXV-cum-Special Judge, Patna in Special Case No. 39 of 2017 arising out of DRI Unit Case No. 21 of 2016-2017 (State through the informant Ashok Kumar, Intelligence Officer, DRI, Regional Unit, Patna Vs. Litu Das & Others).

3. By the impugned judgment, the learned trial Court has convicted the appellants of the charges under Section 20 (b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the ‘N.D.P.S. Act’), the appellants have been, however acquitted of the charges under Sections 23 , 25 and 29(1) of the N.D.P.S. Act. The learned trial Court has awarded a sentence of rigorous imprisonment for 12 years and a fine of Rs. 1,00,000/-(one lakh) each for the offences committed under (b)(ii)(c) of the N.D.P.S. Act. In default of payment of fine, each accused shall undergo for further rigorous imprisonment of two years which shall be in addition to the sentence awarded for the offence. The period for which the accused persons have already undergone into judicial custody shall be set off from the sentence in accordance with Section 428 Cr.P.C.

Prosecution case

4. The case of the prosecution according to the complaint in brief is that on 04.03.2017, acting on the specific information regarding smuggling of ganja from Train No. 12523 NJP-NDLS Superfast Express, a team comprising the officers of DRI, Patna rummaged the Sleeper Coach No. S-2 in between 20.30 hrs and 22.15 hrs and intercepted three passengers who were traveling from New Jalpaiguri to New Delhi with the materials smelling like ganja contained in five bags (2 trolly, 2 air bag and 1 thaila). Those persons identified themselves as Litu Das, Satto Mandal @ Bhukhmari Mandal and Bijoy Roy. They along with five bags were taken into custody by the team of DRI at Chhapra Junction. They were searched and all the five bags were opened in presence two independent witnesses where from total fourteen packets containing the substance like ganja were recovered. The gross weight and net weight of the packets of ganja was found to be 47.950 Kg. and 45.500 kg respectively. The complainant seized the said ganja at 13.30 hrs on 05.03.2017 for violation of Section 8 (c) of the NDPS Act. Accordingly, seizure memo and punchanama were drawn by the officers of DRI, Patna before two independent witnesses and the three intercepted persons. Further, all the three intercepted persons were arrested on 05.03.2017 for the necessary action.

On the basis of this complaint, DRI Unit Case No. 21 of 2016-17 dated 05.03.2017 was registered under Sections 20 , 22, 29 of the NDPS Act and on being receipt in the court of Sessions Judge, Special Case No. 39 of 2017 was registered. After completion of investigation, police submitted final investigation report-cum- complaint dated 31.08.2017 under , 23, 25 and 29 of the NDPS Act against accused persons, namely, Litu Das, Sattu Mandal @ Bhookhmari Mandal and Bijoy Roy. After submission of chargesheet, learned trial court vide order dated 31.08.2017 took cognizance of offences under , 23, 25 and 29 of the NDPS Act. Charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. Accordingly, vide order dated 28.11.2017, charges were framed under (b)(ii), 23, 25 and 29(1) of