JUDGMENT :

JOYMALYA BAGCHI, J.

1. Appeal is directed against the judgment and order dated 30.09.2019 and 01.10.2019 passed by the learned Judge, Special Court (Under NDPS Act), 2nd Court, Jalpaiguri in NDPS Case No. 48 of 2015 arising out of Bhaktinagar P.S. Case No. 1433 of 2015 dated 11.10.2015 convicting the appellants for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act and sentencing them to suffer simple imprisonment for ten years and pay fine of Rs. 1,00,000/- each, in default, to suffer simple imprisonment for six months each.

2. Prosecution case as alleged against the appellant is as follows.

3. On 11.10.2015, SI, Subal Chandra Ghosh (PW1) was posted as Officer-in-charge of NGP Outpost. He received secret information that a truck loaded with ganja was coming from Cooch Behar side to proceed to Uttar Pradesh through Siliguri-Jalpaiguri Road. He diarised the information and forwarded it to his superior authority. Upon instruction from superior authority, he left with force to work out the information. He proceeded to Fulbari more in a Government vehicle. He reached Fulbari more and requested the independent witnesses to assist the search. A vehicle bearing No. HR-38N-8909 was proceeding down Siliguri-Jalpaiguri road. The vehicle was detained. Two persons were found sitting in the drivers cabin. PW1 enquired about their identity and they disclosed their identities as the appellants. They were detained. PW1 gave them option to be searched before a Gazetted Officer or an Executive Magistrate. They opted to be searched by a Gazetted Officer. He requested BDO, Rajganj (PW8) to come to the spot. In his presence the vehicle was searched. 12 bundles of nylon bags containing ganja were recovered. 6 bundles were bigger than the other bundles. The ganja was weighed in a weighing machine. Total weight was found as 400 kgs. 12 samples i.e. two samples from each bundle were taken. Samples were sealed and labeled. Inventory of the contraband was prepared. The contraband was seized under a seizure list (Ext.2). Weighing machine was also seized under a seizure list (Ext.2/1). The vehicle was seized. Appellants were arrested. They were brought along with the contraband to the police station.

4. PW1 lodged written complaint which was treated as first information report and Bhaktinagar Police Station Case No. 1433 of 2015 dated 11.10.2015 under Section 20(b)(ii)(c)/23/25 of the NDPS Act was registered for investigation. In course of investigation, samples were sent for chemical examination Report of the chemical examiner was obtained (Ext.10) which proved presence of ganja. Charge sheet was filed.

5. Charges were framed under Section 20(b)(ii)(c) of the NDPS Act against the appellants. Appellants pleaded not guilty and claimed to be tried. In course of trial, prosecution examined nine witnesses and exhibited a number of documents.

6. In conclusion of trial, trial Judge by the impugned judgment and order dated 30.09.2019 and 01.10.2019 convicted and sentenced the appellants, as aforesaid.

7. Mr. Joydeep Kanta Bhowmik for the appellants argues the prosecution case has not been proved. Conscious possession of narcotics from the appellants has not been established. Mandatory requirements of law had not been followed during search. He contends there is no compliance of Section 52A of the NDPS Act. He also submits there is delay in dispatch of samples for chemical examination. Hence, appellants may be acquitted.

8. On the other hand, learned Additional Public Prosecutor with Mr. Sourav Ganguly submits the prosecution case is established beyond doubt. Independent witness supported the seizure. Due to lapse of time, he was unable to identify the appellants. Contraband was physically produced in Court. Hence, no prejudice was caused to the appellants. Chain of custody of the seized samples has been proved and the chemical examiner’s report was proved without objection. Hence, the appeal is liable to be dismissed.

9. PW1 (Subal Chan