Non-compliance with mandatory provisions of the NDPS Act and contradictions in witness testimonies can raise doubt about the veracity of the prosecution's case, leading to acquittal on benefit of doubt.

Heard Mr. A. Bhattacharya, learned counsel for the appellants and also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, appearing for the State respondent No.1.

2. This appeal, under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 23.03.2023 passed by the learned Special Judge, Sonitpur, Tezpur, in Special (NDPS) Case No.05/2018, arising out of Tezpur P.S. Case No.2147/2018 under Section 20(b) of the NDPS Act. It is to be noted here that vide impugned judgment and order dated 23.03.2023, the learned Court below has convicted the appellants under Section 20(b)(ii)(C) of the NDPS Act and sentenced them to suffer rigorous imprisonment for 10(ten) years and also to pay a fine of Rs. 1,00,000/-each, with default stipulation.

3. The background facts, leading to filing of the present criminal appeal, are briefly stated as under:-

“On 15.10.2018, at about 7:00 a.m. in the morning, acting on a tip off, the informant ASI Jugal Kalita of Kacharigaon Police Out Post along with 20th Assam Rifle Party and other police personnel conducted Naka checking in front of Trade Industry, Mission Chariali and during the course of checking, they intercepted one vehicle, bearing Registration No. AS-27-C-3784 with two persons in the said vehicle and having been searched they have found four packets of suspected ganja, weighing 20 kg and seized the same in presence of DSP, Headquarter and the names of the two persons, whom they have apprehended are Sankar Tirki and Sumen Doimary of Rangabari and Neheruwa village, Majbat, respectively. Thereafter, the informant has lodged one FIR on 15.10.2018 with the Officer-in-Charge, Tezpur Police Station, upon which the Officer-In-Charge, Tezpur Police Station has registered a case, being Tezpur P.S. Case No.2147/2018 under Section 20(b) of the NDPS Act and endorsed S.I. Upen Sarma to investigate the same. The I.O. then visited the place of occurrence, examined the witnesses and arrested the accused persons and forwarded them to Court and drawn up sample from the seized contraband substances and send the same to the FSL for examination and thereafter collected the report. Then on completion of investigation the I.O. laid charge-sheet against the appellants Sankar Tirki and Sumen Doimary to stand trial in the Court under Section 20(b) of the NDPS Act. Thereafter, on production of the accused persons before the learned Court below and after hearing learned Advocates of both the parties after complying the provision of Section 207 of the Code of Criminal Procedure, the learned Court below, having found a prima facie case made out under Section 20(c) of the NDPS Act against the accused/appellant and framed charge under the said section of law and on being read and explained over, the accused persons pleaded not guilty to the same. Thereafter, the learned Court below has examined as many as 10 witnesses and also exhibited as many as 8 documents and after closing the prosecution evidence, the learned Court below has examined the appellants under Section 313 Cr.P.C. and thereafter, hearing arguments of learned Advocates of both the parties, the learned Court below has convicted the appellants under Section 20(b)(ii)(C) of the NDPS Act and sentenced them as aforesaid.”

4. Being aggrieved, both the appellants preferred this criminal appeal for setting aside the impugned judgment and order on the following grounds:-

(i) That the learned Court below has failed to appreciate the evidence in its proper perspective and arrived at an erroneous finding of guilt of the appellants and as such, the impugned judgment and order dated 23.03.2023 is liable to be set aside.

(ii) That the learned Court below has failed to appreciate that there are major contradictions in the version of the prosecution witnesses rendering their evidence doubtful.

(iii) That the learned Court below has overlooked the failure on the part of the prosecution and the investigating agency in ad