The prosecution must prove the seized contraband and its connection to the accused beyond a reasonable doubt to secure a conviction under the NDPS Act.

JUDGMENT :

Michael Zothankhuma, J.

Heard Mr. A. Zho, learned counsel for the appellant and Mr. K. Angami, learned Public Prosecutor (P.P.), Nagaland.

2. This is an appeal against the Judgment and Order dated 29.08.2022 passed by the Court of the Special Judge, NDPS Act Phek, in Sessions (Special) Case No. 01/21 in GR Case No. 35/2020, Pfutsero, arising out of P.S. Phek Case No. 09/20, by which the appellant has been convicted under Section 20(b) NDPS Act and sentenced to undergo rigorous imprisonment for fifteen years with a fine of Rs.2 lakhs. In default of the fine, he is to undergo rigorous imprisonment for two years.

3. The prosecution case in brief is that on the night of 29.10.2020, around 7:30 P.M., the Assistant Sub-Inspector (PW-1) along with Police Personnel were checking vehicles at Zuketsa road, when they spotted a Maruti Alto 800 bearing Registration No. NL 01P 2429 coming towards them. However, it suddenly turned around and went towards Lekromi Village. On pursuing the car they found it abandoned at Lekromi Village. On checking the car with one Senowelo (PW-2) who had come to the place where the abandoned car had been found, they found twenty (20) plastic packets of ganja weighing 200 Kgs. The ganja was seized and the vehicle taken to the Police Station, Pfutsero, where an FIR was lodged on 30.10.2020, consequent to which P.S. Phek Case No. 09/2020 was registered under Section 20(b) NDPS Act. The contraband was photographed and samples of the seized ganja was taken in the presence of the Judicial magistrate (PW-7) and sent to the FSL, Dimapur for examination. The FSL Report (Exhibit-5) confirmed that the contraband seized was ganja and after investigation of the case was concluded, the case I.O. (PW-6) submitted a charge-sheet, on finding a prima facie case under Section 20(b) of the NDPS Act against the appellant and co-accused, Lhuvekhu Venyo, who was the driver of the car.

4. Charge under Section 20(b) of the NDPS Act read with Section 34 of the IPC was framed against the appellant and the co-accused on 10.11.2021, to which they pleaded not guilty and claimed trial. The learned Trial Court examined seven (7) Prosecution witnesses. The appellant and the co-accused were thereafter examined under Section 313 of CrPC. After hearing the final arguments of the parties, the learned Trial Court, vide the impugned judgment and order, came to a finding that there was no evidence against the co-accused with regard to transporting the seized contraband which had been found in the abandoned car. The co-accused was accordingly acquitted of the charge framed against him. However, with respect to the appellant, the learned Trial Court came to a finding that he had hired the car and as such, was in conscious possession of the contraband ganja, despite the fact that he was not having physical possession of the same when the abandoned car was found.

5. The learned Trial Court having found the appellant guilty of constructive/conscious possession of the contraband, he was convicted under Section 20(b) of the NDPS Act and sentenced to undergo rigorous imprisonment for fifteen (15) years with a fine of Rs. 2,00,000/- (rupees two lakhs), in default further rigorous imprisonment for two (2) years.

6. Being aggrieved by the impugned Judgment and order passed by the learned Trial Court, the appellant has assailed the same on the ground that the appellant was neither the owner of the contraband nor was he in constructive/conscious possession of the same. The learned counsel for the appellant submits that none of the prosecution witnesses have testified that the appellant was the owner of the ganja. He submits that the seized contraband had not been produced in the Court to prove that 200 Kgs of ganja had been seized by the Police. He further submits that the FSL Report dated 15.01.2021 shows that plant materials had been examined by the FSL, which proved that ganja had not been seized by the Police, in-as-much as, Section 2(iii)(b) of the NDPS