Point of Law: As per section 55 of Act of 1985, police is required to take charge of articles seized or delivered and keep in safe custody pending order of Magistrate.

JUDGMENT :

Suman Shyam, J

1. Heard Ms. S.K. Nargis, learned counsel appearing for the appellants. Also heard Ms. S. Jahan, learned APP, Assam, appearing for the State.

2. Assailing the judgment dated 11/12/2017 passed by the learned Additional Sessions Judge No.1, Kamrup (M), Guwahati, in connection with NDPS Case No. 07/2016 convicting both the appellants under section 20(b)(ii) (C) read with section 29 of the NDPS Act, 1985 and sentencing each of them to undergo rigorous imprisonment for 12 years and also to pay fine of Rs. 1,00,000/-each, the present appeal has been preferred.

3. The prosecution case, in a nut shell, is that on 29/11/2015, both the appellants were caught red-handed at around 5-45 a.m. by the GRPF personnel carrying 3 (three) bags containing ‘Ganja’ (Canabis). The RPF personnel on duty at the Kamakhya Railway Station had apprehended the two accused persons along with three bags containing four packets of ‘Ganja’ like substance and handed them over to the Police. Nk 165 Noor Mohammad Ali informed the matter to the Police, based on which Kamakhya GRP O.P. GDE No. 589 dated 29/11/2015 was made. On 29/11/2015, Sub-Inspector (SI) of Police Sri Mahesh Baishya had lodged an ejahar before the Officer In-Charge. Kamakhya GRP O.P reporting the incident, based on which Guwahati GRPS Case No. 204/2015 was registered under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act,1985 (here-in-after referred to as the “NDPS Act”). The matter was then taken up for investigation by ASI Sri Dinesh Medhi. During the course of investigation, the statements of the witnesses were recorded and the samples drawn from the seized packets were sent for FSL examination. On conclusion of investigation, charge sheet was submitted against both the appellants/accused persons. After hearing the parties and on consideration of the materials available on record, the learned trial Court had framed charge under sections 20(b) (ii) (C)/29 of the NDPS Act, 1985 against both the accused persons. Since the accused persons/appellants had pleaded not guilty and claimed to be tried, the matter went up for trial.

4. During the course of trial, the prosecution side had examined five witnesses, all of whom are official witnesses. Thereafter, the statements of the accused persons were recorded under section 313 Cr.P.C. wherein, they had denied their involvement in the incident. On conclusion of trial, the learned Sessions Judge had delivered the impugned judgment dated 11/12/2017 convicting both the appellants and sentencing them, as aforesaid.

5. By referring to the impugned judgment, Ms. Nargis, learned counsel for the appellants, has argued that the prosecution has not only failed to prove conscious possession of the contraband but even the seizure of the materials is not in accordance with law. Ms. Nargis has further argued that there is no independent witness examined by the prosecution and there is also nothing on record to indicate as to how the seized articles have been kept during the course of investigation. Contending that the requirements of Sections 42, 52(A) 55 and 57 of the NDPS Act 1985 have been completely ignored by the Investigating Officer while carrying out investigation in this case the learned counsel submits that failure on the part of the I.O. to adhere to the provisions of the statute had resulted in serious prejudice being caused to her clients. Ms. Nargis has, therefore, prayed for setting aside the conviction of the appellants and for setting them at liberty by contending that the prosecution has failed to prove the charge brought against the appellants beyond reasonable doubt. In support of her above arguments, the learned counsel for the appellants has relied upon the following decisions of the Supreme Court:-

(i) Gurbax Singh Vs. State of Haryana reported in (2001) 3 SCC 28.

(ii) Noor Aga Vs. State of Punjab and another reported in (2008) 16 SCC 417.

(iii) Ashok alias Dangra Jaiswal Vs. State of Madhya Pradesh rep