JUDGMENT

Mir Alfaz Ali, J. - This appeal is directed against the judgment and order dated 15.11.2018 passed by the Special Judge, Kamrup in NDPS Case No. 52/2016, whereby the appellant was convicted u/s 17 (C) of the NDPS Act and sentenced to rigorous imprisonment for 10 years and fine of Rs. 4 lakh, in default to rigorous imprisonment for six months.

2. As per prosecution case, Superintendent, Headquarter, Customs Preventive Unit, Narcotic Cell received a secret information on 02-08-2016 at 8 am, that a person from Manipur would come to Gauhati Medical College Hospital with opium in order to sell the same to his customers. The said informant was reduced to writing and a team of customs officials was constituted to pursue the said information. Accordingly, the team of customs officials led by the PW-3 along with two independent witnesses were keeping surveillance in front of the Gauhati Medical College Hospital. At 2 pm, the customs official located the appellant, who was carrying a black bag. On being asked by them, the appellant introduced himself and on search of the bag, they found six packets containing suspected drugs inside the bag. On enquiry the appellant told that the said bag contained opium. Thereafter, the customs officials apprehended the appellant and took him to the Divisional Office of the Customs at Christian Basti along with the contraband. The independent witness also accompanied them to the customs office, where the contraband was seized and sample was taken in presence of the independent witnesses. The sample was sent for chemical examination and the chemical examination report gave positive test for opium. Upon receipt of the FSL report, a final complaint was lodged, on the basis of which, the learned Special Judge took cognizance against the accused appellant.

3. Learned Special Judge framed charge against the appellant u/s 17 (C) of the NDPS Act, which was abjured by the accused/appellant. Six witnesses were examined by the prosecution in order to bring home the charge. Upon completion of the prosecution evidence the accused persons was examined u/s 313 CrPC, wherein the appellant took the plea of innocence. Upon appreciation of evidence, learned Special Judge convicted the appellant u/s 17 (C) of the NDPS Act and awarded sentence as indicated above.

4. Aggrieved, the appellant preferred the instant appeal.

5. Learned counsel for the appellant Mr. M. Biswas and the learned Standing Counsel for the State respondents were heard.

6. Learned counsel for the appellant, Mr. M. Biswas submitted with vehemence that the trial stood vitiated for violation of the provision of Section 52-A of the NDPS Act in respect seizure and taking of sample of the contraband, inasmuch as, the sample was neither taken at the place of recovery nor under supervision of the Magistrate. Mr. Biswas further contended that no independent witnesses was present at the time of taking sample. Though prosecution has projected two independent witnesses in the seizure list, one of the witness has not been examined. One of the so-called independent witnesses examined by the prosecution as PW-1, was in fact, a pocket witness of the investigating agency, and as such, no reliance can be placed on the evidence of such witness (PW-1), submits Mr. Biswas. It was also submitted, that though the learned trial court has relied upon the confessional statement of the appellant recorded u/s 67 of the NDPS Act, such statement could not have been considered in view of the judgment of the Apex Court rendered in Tofan Singh Vs. State of Tamil Nadu (Crl. Appeal No. 152/2013). Further contention of the appellant was that the identity of the seized article was also not proved beyond doubt, inasmuch as, the malkana register was not proved in the court. In support of his contention, Mr. Biswas placed reliance on the following decisions :

1. Joginder Singh Vs. Union of India, (2018) 2 GauLT 402.

2. State of Gujarat Vs. Ismail u. Haji Patel and Anr., (2003) 12 SCC 291

3. K