JUDGMENT :

1. Heard Ms. S.K. Nargis, learned counsel for the appellants. Also heard Mr. S.C. Keyal, learned Standing Counsel, Customs for the respondents.

2. This appeal is directed against the Judgment and Order dated 18.10.2016 passed by the Additional Sessions Judge-cum-Special Judge No. 2, Kamrup (M) Guwahati in NDPS Case No. 10/2015 convicting accused persons,(1) Naveen Kumar @ Naveen Prakash (hereinafter referred to as A1) and (2) Rakesh Babu@ Rakesh Kumar (hereinafter referred to as A2). Both A1 and A2 were convicted vide Judgment and Order dated 18.10.2016 under Sections 20(b)(ii)C/29 of the NDPS Act to undergo RI for 10 years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) each with default stipulation.

3. The case in brief is that on 19.08.2014, acting on specific information, the officers of Anti-Smuggling Unit, Guwahati Customs Divisions, intercepted a truck bearing Registration No. HR-55-N-2225 at Baihata Chariali at about 0330 hours. The Custom Officers recovered 20 packets of suspected cannabis concealed by a load of miscellaneous Emami products, from a truck which can be described as a 10 wheeler truck. 804.64 Kgs of suspected cannabis was seized by the Custom Officers which was carried by the truck meant for transporting Emami products. The driver of the vehicle was A1 while A2 was the helper. The contraband was seized as per procedure and inventory was prepared and thereafter the appellants were arrested and forwarded to the Court. A formal complaint against the appellants was filed after positive test of cannabis was received from the forensic laboratory and the appellants were booked under Sections 20(b) (1) C/29 of the NDPS Act.

4. At the commencement of trial charge under Sections 20(b)(ii)C/29 of the NDPS Act was framed and read over and explained to the appellants and they abjured their guilt and claimed innocence.

5. To substantiate its stance, the prosecution adduced the evidence of 10 witnesses. On the incriminating circumstances arising against them the responses of the appellants to the questions under Section 313 Cr.P.C. was recorded.

6. The learned trial Court delineated the following points for determination:-

“Whether the accused persons on 19.08.2014 entered into a criminal conspiracy for possessing, selling and trafficking cannabis and on that day at about 0330 hours at Baihata Chariali under Baihata Chariali police station officers of Anti-Smuggling Unit, Guwahati Customs Division recovered 804.64 Kgs of ganja (cannabis) concealed by a load of miscellaneous Emami products in a 10 wheelers truck bearing Registration No. HR-55-N-2225 and thereby the accused persons are liable to be punished u/s 20(b)(1)C/29 of the NDPS Act.”

7. The learned counsel for the appellants laid stress in her argument that the informant R. Hazarika was not made a witness in this case to the disadvantage of the appellants which lends a benefit of doubt to the appellants. The truck was allegedly intercepted at Baihata Chariali, but the vehicle was brought all the way to Narengi. Seizure was not effectuated at the place of occurrence nor seizure was effectuated as per Section 52A of the Act.

8. It is averred that the aforementioned truck was not even taken to the Police Station from Baihata Chariali despite the fact that several Police Stations falls between the route from Baihata Chariali to Narengi.

9. The learned counsel for the appellants assiduously submitted her argument and the remaining part of her argument will be discussed at the appropriate stage.

10. The learned Standing Counsel Mr. S.C. Keyal refuted the argument of the learned counsel for the appellants by stating that the appellants were caught red-handed while transporting ganja. Mensreais evident as they concealed the ganja under the Emami products and the truck was meant to carry only the Emami products.

11. The presumption under Section 35 operates against the appellants and they have failed to discharge their burden as they could not give any explanati