C.R. Sarma, J.

1. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. M.H. Laskar, learned counsel for the appellants. Also heard Ms. A. Begum, learned Addl. PP. This appeal is directed against the judgment and order dated 27.4.2012 passed by the learned Special Judge, Karimganj in Special (NDPS) Case No. 2/2011, whereby the learned Special Judge convicted the appellants under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced them to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 15,000/- in default, suffer simple imprisonment for another period of 6 months each. Aggrieved by the said conviction and sentence the appellants have come up with this appeal.

2. The prosecution case, in brief, is that, on 12.3.2011, at about 10 A.M. the Deputy Commandant (General) SHO BSF Field Team, Silchar, on receipt of specific information regarding transportation of ganja, conducted a joint operation with police from Karimganj police station at Chorgola area under Karimganj police station. While conducting the said operation, they found the appellants coming in an Auto Rickshaw. Accordingly the Auto Rickshaw was stopped and the appellants, who came out from the said Auto Rickshaw, were apprehended with 2(two) bags. The Auto Rickshaw, used by the said appellants, managed to escape. Opening the bags, 16 packets (8 packets in each bag) of ganja were found. According to PW-1, who was an Inspector of BSF seized the said ganja by seizure memo (Ext. 2) and handed over the accused and the seized ganja to the police of Karimganj police station, on the next day i.e. 13.3.2011. On being so handed over police took weight of the seized materials and found that each of the 16 packets contained 1 kg of suspected ganja. Accordingly police arrested the accused persons and took sample from 2(two) packets. The samples were sent to the Forensic Science Laboratory (FSL) and the report submitted by the FSL indicated that the seized items were cannabis i.e. narcotic drugs. After receipt of the FSL report, police submitted charge sheet against the appellants, under Section 20(b)(ii)(B)of the NDPS Act and forwarded the accused persons to the Court to stand trial.

3. The learned Special Judge, Karimganj framed charges under Section 20(b)(ii)(B) of the NDPS Act. The charge was read over and explained to the accused, who pleaded not guilty, they claimed to be tried.

4. In order to prove their case, the prosecution examined as many as 8(eight) witnesses, including the Investigating Officer and a Senior Scientific Officer from FSL. After examination of the prosecution witness, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations brought against them. Their plea was that they were falsely implicated. They declined to adduce defence evidence.

5. Considering the evidence, on record, the learned Trial Judge held the accused persons guilty of the offence under Section 20(b)(ii)(B) of the NDPS Act and accordingly recorded the conviction and sentence as indicated above.

6. Mr. H.R.A. Choudhury, learned senior counsel referring to the evidence, on record, more particularly, the evidence of PW-1 has submitted that though the seizure was made during the day time, in a market place, no attempt was made to call any independent person to stand as witness to the seizure and as such the seizure, made by the paramilitary force i.e. BSF, is not believable.

7. The learned senior counsel referring to the provision of Section 42 of NDPS Act has submitted that there is total non-compliance of the said mandatory provision and as such the impugned conviction and sentence cannot stand the scrutiny of law.

8. In support of his contention the learned senior counsel has relied on the decision held in the cases of Karnail Singh vs. State of Haryana, reported in (2009) 8 SCC 539 and Sukhdev Singh vs. State of Haryana, reported in (2013) 2 SCC 212.