JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. D. Panging, learned counsel for the appellant and Mr. U. Bori, learned Addl. Public Prosecutor for the State respondent.

2. The instant appeal arises out of the judgment and order dated 18.07.2018, passed by the Special Judge (NDPS Act) in NDPS Case No. 6/2016 whereby the appellant along with one Mr. Ranjit Goya were held liable for punishment under Section 20(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1965 (for short ‘the NDPS Act’) and thereby sentenced to undergo rigorous imprisonment for 10(ten) years and fine of Rs. 1,00,000/- (rupees one lakh), in default of payment of the fine to undergo rigorous imprisonment for a further period of 6(six) months.

3. As per the prosecution’s case, on 27.02.2016 at 13:00 hours, a written FIR was received at P.S. Balemu from one Sailesh Kumar, Assistant Commandant 61st Bn. SSB Headquarters at Bhairobhkunda (Assam), inter alia, alleging that during special operation/Naka duty by ‘D’ coy of 4200 Chain 10 Yelloripum, Balemu Circle, 125 Kgs (approx) ganja (cannabis) was seized with 2(two) persons apprehended at 0500 hours on 27.02.2016. The Officer-in-Charge, P.S. Balemu registered the FIR vide BLM/PS/C/No. 08/16 under Section 20(B) of the NDPS Act. It was the further case of the prosecution that the Investigating Officer examined the complainant and the witnesses by recording the statements under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). The Investigating Officer seized approximately 125 Kgs of ganja on being produced by the complainant, thereafter, took small quantity from the seized gunny bags in order to gather the forensic/scientific opinion and sent the samples to FSL, Banderdewa for laboratory testing. The FSL report dated 04.07.2016 confirmed that the samples so sent had an active constituent of well known cannabis sativa plant commonly known as ganja. On the basis of the investigation being carried out and the FSL report received, a charge sheet was filed on 27.07.2016 bearing CS No. 10/2016 under Section 20(B) of the NDPS Act against the appellant as well as another accused. The Court below, thereafter, took cognizance of the offence against the appellant as well as one Mr. Ranjit Koya.

4. It further appears from the record that on 24.11.2016, the Court framed charge under Section 20(B) of the NDPS Act against the accused persons which upon being read over and explained, the appellant along with the co-accused denied accusation and claimed to stand trial. The prosecution in order to bring home the charge against the accused persons examined as many as 7(seven) witnesses including the Investigating Officer. The accused were also examined under Section 313 of the Code. The accused did not adduce any witnesses in their defence. The Court below vide a judgment and order dated 18.07.2018 upon appreciation of the evidence convicted the appellant along with the co-accused under Section 20(ii)(C) of the NDPS Act and awarded the sentence as already indicated herein above.

5. Aggrieved by the said judgment and order, the appellant preferred the instant appeal.

6. The learned counsel for the appellant submitted that from the evidence on record, it would be apparent that the prosecution failed to establish prima facie case beyond reasonable doubt that the appellant was in conscious possession of the alleged contraband, inasmuch as, per the learned counsel for the appellant the materials placed on record would show that the alleged seizure of the contraband were carried out in a forest and the appellant along with another were apprehended. The learned counsel submits that there are no materials on record to show that the appellant was in possession of the alleged seized contraband. The learned counsel further submits that Section 52A of the NDPS Act was not complied with and in view of the said non-compliance, the entire case of the prosecution fails. He submitted that admittedly, the samples were not take