IMPORTANT POINT
The prosecution's failure to adhere to the procedural requirements of the NDPS Act and the lack of credible evidence led to the conclusion that the appellant could not be convicted beyond a reasonable doubt.

JUDGMENT :

HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Heard Mr. N.N. Jha, learned counsel appearing on behalf of the appellant. Also heard Mr. B. Sarma, learned Addl. P.P. for the State of Assam.

2. This appeal is directed against the Judgment & Order dated 07.08.2010 passed by the Special Judge, NDPS, Sonitpur, Tezpur, in connection with Special NDPS Case No. 6 of 2008 convicting Shri Kapil Dev Goswami (hereinafter referred to as the appellant) under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short) to undergo Rigorous Imprisonment for 3 years and pay a fine of Rs. 25,000/-with default stipulation.

3. A First Information Report (FIR) was lodged by Shri Reba Kanta Bora (hereinafter referred to as the informant), PW-5 stating that on 12.08.2008 at about 1 PM, while Subedar No. 3100363 Shri Chidar Gambu of Assam Rifles, and his jawans were on their way to conduct a search operation, they caught the appellant red-handed on the road, near a railway track of Ward No. 1 of Rangapara town. The appellant was carrying ‘Ganja ’ (cannabis) in three plastic bags, on his bicycle. Following materials were found inside the three plastic bags:

4. The bicycle carrying the ganja was numbered as No. 128891 and was of Hero make. The above mentioned articles including the bicycle were seized from the possession of the appellant and samples were drawn from the seven separate items and forwarded to the FSL (at present DFS), Guwahati. The appellant was arrested and forwarded to the Court. The FSL report depicted a positive test for ganja. The informant lodged the FIR on 11.09.2008.

5. The investigation had already commenced on the basis of a G.D. Entry, prior to lodgement of the FIR.

6. It is submitted on behalf of the appellant that there was a month’s delay in the lodgement of the FIR. The incident allegedly occurred on 12.08.2008 and the FIR was lodged belatedly on 12.09.2008, without assigning the reasons of delay. The independent witnesses have not supported the prosecution case.

7. The learned counsel for the appellant assiduously argued his case and took us through the cross-examination of the witnesses pointing out the contradictions in the evidence.

8. On the contrary the learned Addl. P.P. for the State of Assam Mr. B. Sarma laid stress in his argument that the delay in the lodgement of the FIR can be ignored. The investigation was launched on the basis of the G.D. Entry. The investigation is not flawed. The samples tested positive for cannabis (ganja ) and the appellant was caught red-handed transporting the ganja on his bicycle.

9. The Trial Court delineated the following point to decide this case:-

“Whether on 12.08.2008 at Ward No. 1 of Rangapara Town under Rangapara Police Station, the accused Kapil Dev Goswami illegally possessed 12 Kgs 180 gms of ganja (cannabis) and 1088 numbers of cigarettes containing ganja, as alleged?”

10. The point that falls for consideration in this case is that whether the Trial Court erred in convicting the appellant under Section 20(b)(ii)(B) of the Act to undergo Rigorous Imprisonment for 3 years with fine.

11. To substantiate its stance, the prosecution adduced the evidence of six witnesses whereas the defence adduced the evidence of two witnesses. The statement of the appellant was recorded under Section 313 Cr.P.C. to enable him to explain the evidence appearing against him and his responses were recorded.

12. The learned Trial Court held that the evidence was crystal clear that Pw-6 received information from Chidar Gambu, (PW-4) that he found ganja in possession of the appellant and then