JUDGMENT :

(Ananya Bandyopadhyay, J.)

The instant appeal is preferred against the Judgment and Order of conviction dated 20.11.2008 & 21.11.2008 passed by Learned Additional Sessions Judge-cum-Judge Special Court under N.D.P.S. Act, Cooch Behar in G.R. Case No.136/2003 under Section 20 (b)(ii)(B) of the N.D.P.S. Act, convicting the appellants and sentencing them to suffer rigorous imprisonment for five years and to pay a fine of Rs.50,000/- each, in default, to pay fine, suffer simple imprisonment for five months more.

2. The prosecution case precisely stated on 10.09.2003 at about 7:10 P.M., the accused who jointly possessed Ganja of 2.1KG+2.1KG+1.9KG respectively at Balarampur, Chowpathi, Tufangunj, were apprehended by the police and on enquiry they failed to produce any valid documents and a license violating the provision of Section 8 of the NDPS Act.

3. Consequently, G.R. Case No.136/2003 was initiated on 16.09.2003 before Learned Sub-Divisional Judicial Magistrate, Tufangunj. After completion of investigation, initiated on the basis of First Information Report being 84/03 dated 10.09.2003. Charge-sheet was submitted against the three accused persons out of which accused Manik Dutta died on 02.08.2008.

4. The prosecution cited 10 witnesses and exhibited certain documents.

5. The Learned Advocate acting as the Amicus Curie submitted that PW1 failed to issue requisition to the S.D.O and C.I directly. There was no seal or label on the alamats, which cast a grave doubt on the prosecution case as the seal or label denoted unique identification without which presumption must be drawn against the prosecution.

6. It was further submitted by the Learned Amicus Curie that-

i. There is nothing to show on record that Section 42(2) and Section 50 of N.D.P.S. Act have been complied with. Appellants were not given options to search with witnesses before their search of seizure of the goods.

ii. Out of ten witnesses six are police personnel, one Government Officer i.e. PW7 and only three independent witnesses.

iii. The independent witnesses i.e. PW4, PW5 and PW6 stated in their evidence that they were called by the police and they signed the papers at Police Station without knowing the contents of the paper.

iv. The place of occurrence stated by the PW1, P.C. Tufangunj that the accused persons were standing near the bus stop but the PW7, Sub-Divisional Officer, Tufangunj stated that the place of occurrence was Balarampur Chowpathi near market, which were not the same place.

v. There was no requisition made by the PW1 to Sub-Divisional Officer, Tufangunj and C.O. Tufangunj. The seizure were not made in accordance with law. There are no mentioning which of the three bags were seized from whom.

vi. There is no proof that PW2 was present at the place of occurrence as a part of this duty. The PW2 stated that they went to the place of occurrence by a police vehicle but the accused/appellants did not flee after seeing the police vehicles.

vii. There was no evidence that PW1 asked the accused/appellants to be searched in presence of a Gazetted Officer.

viii. PW3, a Constable of police could not produce any documents to prove his presence at the place of occurrence.

ix. PW4 one of the independent wit