JUDGMENT :

ANANYA BANDYOPADHYAY, J.

1. This appeal is preferred against the judgment and order dated 18.01.2006 passed by the Learned Judge Special Court under N.D.P.S Act & Additional District & Sessions Judge. 6th Court, Barasat, North 24 Parganas, convicting the appellant to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 20,000/-in default to suffer simple imprisonment for six months for the offence under Section 20(b)(ii)(B) of N.D.P.S. Act, 1985.

2. The complaint against the appellant revealed his presence at the Bagmore Lorry stand beside Ghosh Para Road near Bag More under P. S. Bizpur, District -North 24 Parganas on 05.02.2004 in between 18:20 hrs to 18:50 hrs possessing 3 kg. 200 gms. of ganja in one polythene packet which was carried in one old nylon shopping bag. Being intercepted by the police on the basis of a source information, the appellant was unable to produce valid documents or license for such possession of ganja resulting in violation of Section 8 of the NDPS Act, 1985. The said amount of ganja was recovered from the possession of the appellant by the police.

3. Formal FIR being no. 19 dated 05.02.2004 was drawn up against. the appellant and on completion of investigation charge sheet No. 25 dated 26.03.2004 under Section 20 of the NDPS Act was filed. Charges were framed against the appellant under Section 20(b)(ii)(B) of the NDPS Act, 1985 to which the appellant pleaded not guilty and claimed to be tried.

4. The prosecution cited 9 witnesses and exhibited certain documents.

5. The Learned Advocate Mr. Satadru Lahiri who acted as the Amicus Curie submitted that the charge framed under Section 20 of NDPS Act, 1985 was defective. The presence of the appellant at the relevant place was doubtful frustrating the possibility of recovery of ganja from his possession. The evidence of PWs’ 1, 2, 3, 4, 7 and 9 should not be believed since all of these witnesses were the members of policemen. No independent witness was cited by the prosecution. The seizure was not conducted in the presence of seizure list witnesses. The evidence of PW-5 and PW-6 did not with the other police witnesses negating corroborate with the trustworthiness of seizure as they were forced to sign blank papers by the police. The report submitted by PW-8 suffered from irregularities and illegalities as he could not mention the time and by whom the sample was received by his office. The method of examination of the sample was not written in the said report. The provisions prescribed under Section 50 of the NDPS Act, 1985 were not followed. The recovery chain could not be proved and accordingly the prosecution failed to establish its case and the appeal shall be allowed.

6. The Learned Advocate Mr. Avishek Sinha for the State submitted that the provision enumerated in Section 50 of the NDPS Act, 1985 was not necessary to be followed as the seizure of ganja was from the nylon bag. Moreover, based on the impartial evidence of the official witnesses conviction can be sustained irrespective of the independent witnesses in case they do not support the prosecution case. Evidence of the raiding party established the guilt of the appellant supported by the opinion of PW-8 that the sample sent for expert opinion contained ganja. Therefore, the prosecution aptly proved its case and the appeal shall be allowed.

7. Assailing the evidence adduced by the prosecution it transpired that the following were the prosecution witnesses and the documents exhibited respectively:-