In challenge is the judgment and order of conviction and sentence dated 13.07.2009 passed by learned Special Judge, Kokrajhar in Special Case No. 5 of 2006 whereby and whereunder appellants namely, Sri Ramesh Sahu and Sri Harjeet Singh were convicted under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and sentenced to suffer R.I for 10(ten) years and fine of Rs. 1 lakh in de­fault to suffer R/1 for 2(two) years each. The period of detention of the appellants in cus­tody during investigation/trial was directed to be set off from the substantive sentence of imprisonment

2. The impugned judgment and order of conviction and sentence is challenged by the appellants primarily on the following grounds:

(1) that the learned Trial Court committed grave error in law as well as on facts while convicting the appellants under Sec­tion 20(b)(ii)(C) without appreciating the evidence of record both oral and documentary in its proper perspective;

(2) that the learned Trial Court wrongly convicted the appellants holding that they were in conscious possession of the seized Ganja kept in the secret chamber of the truck. The learned Trial Court while hold­ing as such failed to consider the status and position of the appellants and also overlooked the ownership of the vehicle in whose secret chamber the Ganja had been kept concealed. Appellants being the driver and the cleaner of the truck in the circumstances of fact of concealment of the Ganja in its secret chamber cannot lead any inference that the appellants had the conscious possession of the seized Ganja;

(3) That the provision of Section 52A(2)(a)(b) and (c) of the NDPS Act have not been followed which cast a man­date on the part of the prosecution to pre­pare an inventory of the articles seized from the persons concerned which has to be certified by a Magistrate and photo­graphs taken of the seized articles in con­nection of the case. The samples so taken for the purpose of sending the same to the laboratory for chemical analysis were not taken before a Magistrate. Prosecution also failed to comply with the provisions of the section for not obtaining a certifi­cate from the Magistrate in regard to the seizure of the contraband from the pos­session of the appellants;

(4) that the learned Trial Court also failed to take into consideration regarding non-compliance of provision of Section 42 of the NDPS Act which mandates record­ing the grounds for believing the posses­sion of the psychotropic substance and also for sending information to the supe­rior officer immediately; and

(5) That the learned Trial Court also failed to consider the factum of delay in sending the sample to the Forensic Sci­ence Laboratory (for short FSL) for analy­sis and report.

3. Before entering into the merit of this appeal it would be apposite for this Court to place the case of the prosecution for the pur­pose of appreciation of the facts and evidence on record in regard to the seizure of Ganja from the truck kept concealed in a secret chamber.

Appellant Ramesh Sahu was the driver of the truck bearing registration No. AS-09-A-1135 while appellant Harjeet Singh was the cleaner of the said truck. On 28.3.2006 when the truck as indicated above loaded with coke entered into Assam through Srirampur Entry Gate, Inspector of Excise Sri M.M. Mushahary stopped the truck at the check gate for routine checking. While checking 52 packets of suspected Ganja weighing 527.500 kilograms were discovered in a se­cret chamber of the truck and seized the same along with vehicle. The driver and the cleaner of the truck named hereinbefore were also arrested by Sri M.M. Mushahary. The seized Ganja, the seized truck along with arrested appellants were produced before the Court of Special Judge, Kokrajhar, who remanded the appellants to jail custody. Samples were drawn from the seized suspected Ganja and sent the same to the chemical examiner for analysis and report. Inspector of Excis