Dr. Indira Shah, J -- This is an appeal against the judgment and order dated 03.06.2010 passed by the learned Special Judge, Kokrajhar, in Special Case No. 01/2009 convicting the appellant under Section 20(ii)(C) of NDPS Act and sentencing them thereby to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 100,000/- lakh each, in default, further rigorous imprisonment for 2 years each.

2. Heard Mr. H. Hoque, learned Amicus Curiae and Mrs. A. Begum, learned Addl. Public Prosecutor, Assam.

3. The prosecution story, in brief, is that on 01.07.2009 at about 5:00 p.m. the accused Biswanath Das and Adari Das were noticed by the people at Gossaigaon bus stand. They had three bags in their possession which were suspected to contain ganja. The head constable Shri Lakhi Kanta Boro, who was on duty at Gosaigaon bus stand was immediately informed who in turn lodged an information over telephone to Police at Gossaigaon Police Station. The information so, lodged by the head constable was entered in the general diary entry and S.I. Tapas Kr. Das was endorsed to investigate the matter. Accordingly, Tapas Kr. Das (PW-12) came to the Gossaigaon bus stand and found the accused persons along with three gunny bags which contained ganja. PW-12 immediately informed the Sub-Divisional Police Officer of Gosaigaon, who along with Officer-in-Charge of the Police Station also arrived at the place of occurrence. He (PW-12) was then authorized by the SDPO to investigate the case. The suspected contraband ganja was seized by PW-12 in presence of witnesses. It was weighted and found that three bags contained 57 k.g of contraband ganja. Samples drawn from the seized ganja were sent to forensic laboratory for examination.

On receipt of report from the forensic laboratory, which shows that the samples gave positive taste of cannabis(ganja), formal FIR was lodged by PW-12 and Gossaigaon Police Station No. 194/2009 under Section 20 (b) of NDPS Act was registered. On completion of investigation charge-sheet was submitted under Section 20(b) of NDPS Act. Learned trial Court framed the charge under section 20(ii)(C) of NDPS act against both of the accused. The accused persons pleaded not guilty to the charge and claimed to be tried.

4. Altogether 12 witnesses were examined by the prosecution. The accused persons in their statement recorded under Section 313 Cr.P.C. denied all the allegations levelled against them and pleaded that they were innocent. However, no defence evidence was adduced. On conclusion of trial the accused were convicted and sentenced as stated earlier.

5. It is submitted by Mr. S Hoque, learned Amicus Curiae that the prosecution failed to establish that the contraband Ganja was found in exclusive possession of the accused persons. None of the witnesses examined by the prosecution saw the accused persons holding bags which contained ganja. They were not seen carrying the bags by the witnesses.

6. Per-contra, learned Addl. Public Prosecutor supporting the judgment passed by the learned trial court submitted that the accused persons were seen along with the ganja bags and they confessed before the public that the bags belonged to them.

7. In the case of Inder Sain Vs. State of Punjab 1973 2 SCC 372 it was held that the word “possess” connotes some sort of knowledge about the thing “ possessed”. It was also held that the prosecution again proved that the accused was in control of something in which the circumstances which shows that he was accenting to being in control of it. Once it is proved by the prosecution that the accused was in physical custody of opium, it is for accused to prove statutorily that he has not committed the offence by showing that he was not knowingly in possession of opium. Thus, the burden of proving all the fact that the accused was not knowingly in possession of the contraband ganja would lie on soldiers of the accused person.

8. In the case of Nadal Vs. State of H.P 2003 7SCC 465 it was observed that once pos

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