IMPORTANT POINT
Strict compliance with statutory provisions under the NDPS Act is essential for upholding convictions; failure to produce seized contraband and lack of proper inventory preparation undermines the prosecution's case.

JUDGMENT :

Malasri Nandi, J.

Heard Ms. A. Begum, learned legal aid counsel, representing the appellant. Also heard Mr. B. Sharma, learned Additional P.P. for the state respondent.

2. This appeal is directed against the Judgment and Order dated 02/07/2022, passed by the learned Special Judge, Udalguri, in Special (NDPS) case No. 11/2021, whereby the accused/ appellant was convicted u/s 20(b)(ii)(c) of NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- in default SI for six months.

3. The case of the prosecution is that an FIR has been lodged on 09/03/2020, alleging inter alia that on 08/03/2020, on receipt of a specific information regarding transportation of Narcotic Drugs in a white colour Maruti Car from Mazbat towards Orang, a naka checking was conducted at Mazbat new market area. Accordingly, during naka checking one white colour Maruti Car bearing No. ML-05D-0175 was intercepted at Habigaon area. Thereafter, the car was thoroughly checked and during search the accused appellant was found in the car along with three bags containing 22 kgs of Cannabis, which were seized in presence of the witnesses. A case was registered vide Mazbat PS case No. 19/2020 and subsequently the accused/appellant was arrested.

4. During trial, charge was framed u/s 20(b)(ii)(c) of NDPS Act, which was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. To prove the guilt of the accused/ appellant, six witnesses were examined by the prosecution. On the other hand, the accused did not adduce any evidence. After completion of trial, the statement of the accused/ appellant was recorded u/s 313 Cr.PC, wherein the incriminating material found in the evidence of the witnesses were put to the appellant to which he denied the same. The appellant specifically stated that he has been falsely implicated in this case. After hearing the arguments advanced by the learned counsel for both sides, the trial court convicted the appellant as aforesaid.

5. Learned legal Aid counsel for the appellant has argued before this court that though it was alleged that the contraband items were seized from the conscious possession of the accused/ appellant, but the seizure witnesses i.e., PW-1, 3 and 4 did not support the prosecution case. Hence, the entire seizure is doubtful, as no independent witness was present at the time of seizure of the contraband. It is specifically stated that none of the witnesses were present at the place of seizure i.e. at Habigaon and as such, there is a violation of section 49 and 53 of NDPS Act.

6. It is also the submission of learned counsel for the appellant that source information regarding transportation of Bhang like substance was received by PW-6. Accordingly, Mazbat PS GDE No. 149 dated 08/03/2020 was recorded. However, PW-6 has admitted that he has not reported the matter to his immediate superior authority. Hence, there is total violation of non-compliance of mandatory provision of Section 42 NDPS Act. It is also pointed out that from the statement of PW-5 and 6, it is clear that the place of seizure is not a public place and as such Section 43 is also not attracted.

7. In support of her submission, learned legal aid counsel has referred a case law vide Boota Singh vs. State of Haryana (Criminal Appeal No. 421 of 2021)

8. Learned counsel for the appellant has further argued that the accused/ appellant was a driver and not the owner of the vehicle from which contraband items were recovered. The appellant was not aware of the fact what articles were kept inside the vehicle. Further, in view of doubtful seizure without following prescribed procedure, it is not possible to draw presumption of section 54 of NDPS Act.

9. A further submission of the learned legal aid counsel is that no inventory was prepared and referred to the magistrate for certification. The seizure list was prepared in doubtful manner and goods are kept in the Malkhana, which is a serio