IMPORTANT POINT
Conscious possession is essential for conviction under the NDPS Act, and failure to comply with procedural safeguards can lead to acquittal.

JUDGMENT :

Susmita Phukan Khaund, J.

Heard Mr. S. Borthakur, learned counsel for the appellant Benjamin Basumatary @ Binjamin Basumatary and Mr. R. Baruah, learned counsel for the appellant Smt. Moni Basumatary as well as Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the respondent State.

2. The appellant Smt. Moni Basumatary has brought up this Criminal Appeal No. 14/2022 and the appellant Sri Benjamin Basumatary @ Binjamin Basumatary has brought up the Criminal Appeal No. 16/2022 as they are aggrieved by the judgment dated 15.12.2021 passed by the learned Sessions Judge, Sonitpur, Tezpur in connection with Special NDPS Case No. 02 of 2018 convicting the appellants under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and sentencing them to undergo rigorous imprisonment for a period of 8 (Eight) years each and to pay a fine of Rs.1,00,000/- (Rupees One Lac) each with default stipulation.

3. The genesis of the case was that on a tip off, a search operation was conducted under the name and style of “Operation Dekargaon” under the leadership of Subedar A. Kipgen along with civilian police force at about 09.15 hours on 01.06.2018 and at about 10.55 hours, the investigating team apprehended the appellants Smt. Moni Basumatary and Sri Benjamin Basumatary @ Binjamin Basumatary (hereinafter also referred to as A-1 and A-2 respectively or as the appellants), along with 10 kgs of contraband. On being confronted, the appellants revealed that it was handed over to them by an unknown individual at Majbat Udalguri and they were directed to deliver the item at Dekargaon Railway Station to another person. The contraband was weighed and seized. The contraband weighed around 10 kgs.

4. The police registered Tezpur PS Case No. 1128/2018 under Section 20(b) of NDPS Act and embarked upon the investigation. During investigation, the earlier seizure memo was also seized along with two white coloured polythene packets containing 5 kgs each of suspected ganja, one black coloured bag, a pair of weights and measuring equipment, one pocket diary from Alam Kipgen. The sketch map was prepared and the samples which were drawn were forwarded for forensic examination. On receipt of the forensic report and on completion of investigation, charge sheet was laid against the appellants. At the commencement of trial, a formal charge under Section 20(b) of the NDPS Act was read over and explained to the appellants, to which the appellants pleaded not guilty and claimed to be tried. Thereafter, an opportunity was accorded to the appellants to be heard at the time of framing of charge and later, charge was altered and framed under Section 20(b)(ii)(B) of NDPS Act. The appellants abjured their guilt and claimed innocence.

5. To substantiate its stance, the prosecution adduced the evidence of 7 (Seven) witnesses and exhibited as many as 8 (Eight) documents.

6. On the incriminating evidence projected by the prosecution witnesses, several questions were asked to the appellants under Section 313 of the Code of Criminal Procedure, 1973 (CrPC for short). The tenor of the answers of the appellants reveals a plea of total denial.

7. Learned counsel for the appellants Mr. S. Borthakur and Mr. R. Baruah laid stress in their argument that only one bag was recovered. Both the appellants are strangers to each other. The Investigation Officer (IO for short) could not specifically point out from whose possession the bag was recovered nor could the other witnesses. The army personnel who initially apprehended the appellants could not specifically point out from whose possession the bag was recovered. Two packets of ganja were found inside one bag. No independent witnesses were examined. One independent witness who was present at the time of seizure was not produced as a witness in the Court. It was further argued that the evidence of PW-1 clearly reveals that Section 52-A of NDPS Act was not complied with and on that groun