Strict adherence to procedural requirements and the necessity for the prosecution to prove conscious possession of contraband by the accused.

H. Barua, J.

1. Appellants, Shri Manik Debnath and Shri Lohit Debnath were tired by the learned Special Judge (Sessions Judge), Morigaon under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, in short, the NDPS Act and sentenced both the appellants having found guilty under the charge vide judgment and order dated 16.9.2005 passed in Special Case No. 01/2003.

2. Appellant, Shri Manik Debnath was sentenced to undergo R.I. for 15 (fifteen) years with a fine of Rs. 2,00,000/- in default of payment of fine to suffer R.I. for another 6 (six) years, while appellant Shri Lohit Debnath was sentenced to undergo R.I. for 10 (ten) years with a fine of Rs. 1,00,000/- in default of payment of fine to undergo further R.I. for 3 (three) years.

3. Feeling aggrieved by and dissatisfied with the judgment and order of conviction impugned, this appeal has been filed by both the appellants from jail challenging its legality and correctness.

4. Appellant Manik Debnath had a cloth shop in Dry Fish Market at Jagiroad and had been doing Ms business in cloth alongwith appellant Lohit Debnath. Based on a secret in-formation about carrying of some contraband drugs by some drug traffickers unto the Jagiroad Dry Fish Market, Jagiroad Police made a GD Entry No. 283 dated 12.9.2002 at 9.45 p.m. Shri Troilokya Mahanta (PW-5) was entrusted to make an enquiry. Sub-Inspector of Police, Sri T. Mahanta (PW-5) alongwith some other police personnel immediately rushed to the spot and discovered a bicycle loaded with one big cartoon and another cartoon lying near the bicycle in front of the cloth shop of Manik Debnath. Both the appellants were also found nearby the said bicycle. On suspicion, Jagiroad Police checked the cartoons and opened. By opening, Police discovered 14 (fourteen) packets of suspected Ganja, 7 (seven) packets in each cartoon nicely packed with polythene paper and recovered the same from the possession of the appellants and seized after weighment. The net weight of the suspected ganja was found to be 80.640 kg. The samples were drawn in presence of the witnesses. This operation was conducted on 12.9.2002. On 13.9.2002, samples were sent to Forensic Science Laboratory, in short, "FSL" through the Superintendent of Police, Morigaon for chemical examination. Police arrested both the appellants and had taken into custody. The sample so sent, gave positive test for cannabis.

5. Having received the FSL report, S.I., Sri T. Mahanta lodged the FIR (Ext. 5) with Jagiroad Police Station. A case was accordingly registered under Section 20/29 of the NDPS Act, 1985.

6. Learned Special Judge, Morigaon having found materials sufficient to frame charges, did frame charges under Section 20 read with Section 29 of the NDPS Act against both the appellants. Appellants pleaded not guilty to the charges when read over and explained to them and claimed their trial.

7. Trial proceeded. Learned trial court examined 7 (seven) witnesses for the prosecution. None was examined as defence witness, nor any document was proved for the defence. The defence case was denial simpliciter. At the conclusion of the trial, both the appellants were convicted as hereinbefore stated.

8. At this stage, it would be appropriate to mention that this case was remanded back by this Court with a direction when both the appellants filed an appeal against the judgment and order of conviction passed earlier. This instant appeal is, therefore, against the judgment and order of conviction passed after remand.

9. We have heard Sri J.M. Choudhury, learned senior counsel, assisted by Mr. R. Sekhar and Mrs. S. Choudhury, for and on behalf of the appellants, and Sri B.S. Sinha, learned Additional Public Prosecutor, Assam, for and on behalf of opposite party, the State of Assam.

10. Mr. J.M. Choudhury, learned senior counsel for the appellants has challenged the legality and correctness of the impugned judgment and order of conviction mainly on the following grounds:

a) For