The main legal point established in the judgment is the requirement for the prosecution to prove the quantity of contraband beyond reasonable doubt and the application of the principle favoring the accused in a criminal proceeding.

1. Heard Mr. B. Deka, learned counsel for the appellant and Mr. S.C. Keyal, learned Addl. Solicitor General of India appearing for the respondent.

2. This appeal is directed against the judgment and order dated 12.12.2014 passed by learned Addl. Sessions Judge (FTC) No. 3, Kamrup (M) in NDPS Case No. 65/2013. By the said judgment, the accused/appellant was convicted u/s 21 (c) of the NDPS Act and sentenced to imprisonment for ten years and fine of Rs. 1 lakh with default stipulation.

3. On the basis of a secret information received by the Customs officials that a truck, bearing registration No. AS-25-B-1986 was carrying huge quantity of Phensedyl linctus cough syrup bottles, a team of Customs Officers was constituted under the leadership of one B.P. Jaishi to pursue the said information. The custom official located the said truck bearing No. AS-25-B-1986, as per the information, at Jalukbari, and the present appellant was found in the truck as its driver. They brought the truck along with the appellant to the customs office. On checking, it was found that the truck was carrying phensedyl cough linctus syrup along with some quantity of "Ujala Supreme Liquid Blue". There were 115 packages in the truck, out of which, 37 packages contained 5500 bottles of phensedyl linctus cough syrup bottles. The said phensedyl linctus cough syrup bottles containing contraband substance were seized vide Ex-2 and the samples taken therefrom were sent for chemical examination, which gave positive test for codeine (as codeine phosphate). The quantity of codeine in each bottle was 190.96 milligrams. The total contraband in the entire consignment of cough syrup was 1.05 kg. contained in 5500 bottles. After obtaining the FSL report, prosecution was launched against the present appellant.

4. In course of trial, six witnesses were examined by the prosecution and a number of documents were proved. On appreciation of evidence learned trial court convicted the accused appellant u/s 20 (1) (c) of the NDPS Act and awarded sentence as indicated above.

5. Aggrieved by the said judgment of conviction and sentence, the appellant preferred the instant appeal.

6. Learned counsel for the appellant, Mr. B. Deka has not contested the merit of the case. The only contention raised by the learned counsel for the appellant is that the quantity of contraband found in possession of the accused/appellant was not of commercial quantity and therefore, conviction ought not to have been recorded u/s 21 (c), rather it should have been u/s 21 (b) of the NDPS Act. In support of his submission, learned counsel for the appellant has taken me through the evidence of PW 1, being the seizing officer as well as the maker of the Ex-2, inventory report. As per the Ex-2, 5500 phensedyl linctus cough syrup bottles were shown to have been seized by the PW 1. But during cross-examination PW 1 clearly admitted that he personally did not count the number of bottles seized.

7. PW 4, another witness to Ex-2 stated, that the goods were downloaded from the truck and he was shown the phensedyl linctus cough syrup bottles. He further stated, that there were about 5000 bottles of phensedyl linctus cough syrup bottles. PW 5, who received the secret information stated, that in Ex-1, the information reduced to writing, the number of bottles were not mentioned. The information was only to the effect that huge quantity of contraband articles were being transported.

8. The contention of the learned counsel for the appellant is that the phensedyl linctus cough syrup bottles seized by the Customs officials were not more than 5000 bottles and there was no basis of the entry recorded in the Ex-2 to the effect that 5500 bottles were seized. Learned counsel basically relying on the testimony of PW 1 and PW 4, being the seizing officer and witness to the seizure list, submits that the quantity of phensedyl linctus cough syrup bottles were not more than 5000 and the amount of 5500 was put on surmise and con