The prosecution's failure to produce primary evidence of seized contraband under the NDPS Act vitiated the trial, leading to the reversal of the conviction.

JUDGMENT :

M. Choudhury, J.

The instant criminal appeal from Jail under Section 383, Code of Criminal Procedure, 1973 [‘the CrPC’ or ‘the Code’, for short] is preferred to assail a Judgment and Order dated 16.12.2019 passed by the Court of learned Special Judge, Nalbari in NDPS Case no. 11 of 2018, which arose out of Tihu Police Station Case no. 78/2018. By the Judgment and Order dated 16.12.2019, both the two charge-sheeted accused persons including the accused-appellant – Pinak Sankar Basu, have been convicted for the offence punishable under Section 20[b][ii][C] of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985. On being found guilty, both the accused persons including the accused-appellant, have been sentenced to undergo rigorous imprisonment for 12 [twelve] years each and to pay a fine of Rs. 1,50,000/-each, in default of payment of fine, to undergo rigorous imprisonment for a further period of 1 ½ [one and half] years each.

2. The investigation was set into motion on institution of a First Information Report [FIR] before the Officer In-Charge, Tihu Police Station by an Assistant Sub-Inspector of Police [ASI], Bichitra Kalita [P.W.2] as an informant on 21.05.2018. The FIR was shown to be instituted in reference to Tihu Police Station General Diary Entry no. 382 dated 21.05.2018.

3. In so far as the contents of the FIR [Ext.-3] lodged in reference to Tihu Police Station General Diary Entry no. 382 are concerned, it inter alia stated that an information was received at Tihu Police Station on that day to the effect that a car was coming from Guwahati side by National Highway no. 31 towards Barpeta and the car was illegally carrying some amount of Cannabis [Ganja]. On the basis of the information and under supervision of the Officer In-Charge, Tihu Police Station, a search was conducted by the Police personnel from Tihu Police Station in a silver coloured Hyundai Accent car bearing registration no. WB-06/1392 at a place in front of Nathkuchi Police Post situated on National Highway no. 31 leading to Barpeta from Guwahati. On being searched, seventeen packets of different weights, wrapped in plastic, containing suspected contraband, Cannabis [Ganja] were found. The persons sitting in the driver seat and in the front seat of the vehicle bearing registration no. WB-06/1392 [‘the vehicle’, for short] were identified as [i] Sankar Yadav, son of Jagdish Ray, Khajur Bagan, Agartala, Tripura; and [ii] Pinak Chandra Basu, son of Pranab Basu, Gandhigram, Agartala, Tripura [‘the accused-appellant’] respectively. On their interrogation, it was learnt that they were accompanied by the owner of the vehicle [name unknown], a resident of Bidyanagar, Tripura. It was divulged that the suspected contraband, Cannabis [Ganja] were being carried in the vehicle from Agartala to West Bengal. It was further mentioned in the FIR that the owner of the vehicle was also travelling with the two accused persons, but seeing the Police personnel in patrolling duty conducting checks, he fled away. The FIR further mentioned that the suspected contraband, Cannabis [Ganja] in the form of seventeen nos. of packets of various sizes were seized and counted in presence of the senior most official. It was further mentioned that the vehicle was also seized. On being weighed, the packets containing suspected contraband, Cannabis [Ganja] were found to be 77.36 kgs. The accused persons were arrested at the place of occurrence and they were kept in Jail hajot.

4. On receipt of the FIR [Ext.-3], the Officer In-Charge, Tihu Police Station registered the same as Tihu Police Station Case no. 78/2018, on 21.05.2018, for the offences under Section 20[b][ii][C] and Section 29 of the NDPS Act, 1985. There was a separate entry in the FIR [Ext.-3] to the effect that the FIR was received from one Girish Chandra Das, CB no. 368 of Tihu Police Station at 04-45 p.m. on 22.05.2018. After registration of the FIR, the Officer In-Charge, Tihu Police Station, Nabajit Talukdar [P