The main legal point established in the judgment is the requirement for the prosecution to prove the charge against the accused beyond all reasonable doubt, and the importance of adhering to proper procedures for search, seizure, and identification of contraband articles under the NDPS Act.

Md. Mumtaz Khan, J.

1. This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated March 19, 2010 passed by the Ld. Judge, Special Court (under NDPS Act), 2nd Court, Jalpaiguri in NDPS Case No. 31 of 2007. By virtue of the impugned judgment appellant was found guilty of the commission of the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as NDPS Act) and was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. one lakh in default to suffer imprisonment for six months more with a direction for set off.

2. The prosecution, in brief, is as follows:-

3. On August 16, 2007 at 0.45 hours while P.W.5 was on night patrolling duty along with P.W.2 and P.W.6 he received a secret source information that one person was proceeding towards NJP station through Iskon Mandir road side carrying a large quantity of ganja on his bicycle. He then apprised the matter to the officer-in-charge Bhaktinagar P.S. and after getting permission left to work out the said information. P.W.1 and A.S.I. Uday Chakraborty also came there along with papers, carbon, pen sealing wax, envelop and other accessories as directed by the officer in charge of that P.S. and they then ambush there at about 01.00 hrs. At about 01.15 hours they saw the appellant coming from Iskon side road riding on a bicycle with a large gunny bag on the back carrier. They detained him and on interrogation he admitted that the gunny bag contained 21 kgs ganja and failed to show any legal document in support of possession of such huge quantity of contraband articles.

3. He was given option of being searched either in presence of any Magistrate or senior police officer and after getting his consent in writing to be searched in presence of senior police officer C.I. Sadar, Jalpaiguri was informed. At 02.05 hours P.W.3 came there and he personally interrogated the appellant in presence of two independent witnesses Sudip Barai (P.W.7) and Bablu Dhakal and on being confirmed he instructed P.W.5 to open the bag. P.W.5 then checked the nylon gunny bag in presence of the witnesses near Hari Mandir and found ganja inside that bag which on weighing was found 21 gms. of ganja. P.W.3 then seized the nylon gunny bag containing 21 kg of ganja, one nylon rope, one old and used black colour bicycle used for transportation of that contraband article, one nokia mobile handset as also 50 grms of ganja taken as sample by preparing a seizure list and also sealed and packed the sample ganja in presence of the witnesses, appellant and P.W.3 and thereafter appellant was apprehended and was brought at the Bhaktinagar P.S. where a written complaint (Exbt. 2/1) was lodged by P.W.5.

4. On the basis of the above written compliant of P.W.5, Bhaktinagar P.S. Case No. 533 dated August 16, 2007 was started by P.W.4 against the appellant for the commission of the offence punishable under Section 20(b)(ii)(C) of the NDPS Act and endorsed the case to P.W.8 for investigation who duly investigated the same and on completion of investigation submitted charge sheet against the appellant under Section 20(b)(ii)(C) of the NDPS Act.

5. Charge was framed on July 4, 2008 under Section 20(b)(ii)(C) of the NDPS Act and after the appellant pleaded not guilty to the charge, trial commenced.

6. Prosecution examined 8 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellant under Section 313 of the Code of Criminal Procedure the learned court below passed the impugned judgment.

7. It is submitted by Ms. Meenal Sinha, learned advocate appearing on behalf of the appellant that the impugned judgment, order of conviction and sentence cannot be sustained in law for non compliance of the provisions of Sections 42 as also 50 of the NDPS Act, non production of GDE in connection of which search and