JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. D. Gogoi, learned counsel for the accused-appellant. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State/respondent.

2. This is an appeal filed under Section 374(2) Cr.P.C. 1973, challenging the judgment and order of conviction passed by the ld. Sessions Judge (Spl.) Kamrup in Sessions (Spl.) Case No. 371(K-G)/2009 under Sections 20(b)(ii) (C) of NDPS Act, whereby the accused/appellant was sentenced to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 1,00,000/- in default, further imprisonment for 6(six) months.

3. The fact what emerges from the FIR is that on 29.11.2009 at around 11:20 a.m. the Officer-in-charge of Bharalumukh police station received a secret information that in the godown of accused/appellant Amar Roy some contraband ganja and explosive substances were kept situated at Fatasil ASEB colony. The information was entered in General Diary vide Bharalumukh P.S. G.D. Entry No. 1410 dated 29.11.2009. Thereafter, the Deputy Superintendent of Police, Pandu Division, authorized the S.I. Fakaruddin Barbhuyan to investigate the case. Accordingly, S.I. Fakaruddin Barbhuyan along with staff of Bharalumukh police station visited the godown of the accused/appellant Amar Roy at Fatasil ASEB colony. On being searched, 270 nos. of packets wrapped with colourful gift papers and some explosives were also recovered in the said godown. About 170 kg of ganja were seized in presence of the witnesses. The sample of the ganja were drawn, packed and sealed in presence of the witnesses. Subsequently, the samples were sent to the FSL for chemical examination. On the basis of the report from FSL, Guwahati, it was found that the samples gave positive test for Cannabis (ganja). Thereafter, the accused Amar Roy and Gopal Singh were arrested. Subsequently, after completion of investigation, charge-sheet was submitted against both the accused persons under Section 20(b)(ii)(C) of NDPS Act.

4. Both the accused persons, Amar Roy and Gopal Singh put their appearance before the ld. Special Judge, Kamrup. On their appearance charge was framed under Section 20(b)(ii)(C) of NDPS Act, which was read over and explained to the accused to which they pleaded not guilty.

5. In order to prove the guilt of the accused persons, the prosecution has examined 8(eight) witnesses and exhibited some documents as well as marked material objects. On completion of trial, the statements of both the accused were recorded under section 313 Cr.P.C. and the incriminating materials found in the statements of the witnesses were put before them to which they denied all the allegations. The accused/appellant Amar Roy denied that the godwon where from ganja was seized belongs to him. The defence has examined 2(two) witnesses. After hearing learned counsel for the both sides, accused Amar Roy was convicted as aforesaid and Gopal Singh was acquitted by the ld. trial court.

6. The learned counsel for the accused/appellant has argued that the evidence relied upon by the prosecution has not conclusively proved the guilt of the accused/appellant as the perpetrator of the alleged crime and as such, the impugned judgment and order dated 01.09.2011 convicting the accused/appellant is liable to be set aside.

7. It is also submitted that sub-section (1) of Section 42 of the NDPS Act, the officer conducting the search is under legal obligation to record the reasons or grounds of his belief to make the search in terms of power, conferred upon him but in the instant case, PW-2, the police officer conducting the search had not recorded the reasons or grounds for his belief as required under this provision and as there is a clear violation of the mandatory provisions of the Act and as such, the impugned judgment and order is liable to be set aside.

8. It is also submission of the learned counsel for the accused/appellant that the provisions of Section 42(1) and 42(2) of the NDPS Act, being mandatory, non-complia