IMPORTANT POINT
The prosecution failed to establish a prima facie case against the accused under the NDPS Act due to non-compliance with statutory requirements and lack of credible evidence.

JUDGMENT :

(M. Thakuria, J)

By this common judgment and order, it is proposed to dispose of two Criminal Appeals, being Crl. A. No. 97/2023, preferred by appellant- Debeswar Basumatary, & Crl. A.(J) No. 91/2022, preferred by appellant- Shajan Karki, as both have arisen out of a common judgment and order dated 08.07.2022, passed by the learned Special Judge, Udalguri in Special (NDPS) Case No. 06/2019, whereby both the accused/appellants have been convicted under Section 20(b)(ii)(c) of NDPS Act and sentenced to undergo Rigorous Imprisonment for a period of 12 (twelve) years and a fine of Rs. 1,00,000/-(Rupees one lakh) only, in default S.I. for another 6 (six) months for the offence.

2. Heard Mr. M. Biswas, learned counsel for the appellant in Crl. A. No. 97/2023 and Mr A. Chamuah, learned Legal Aid Counsel for the appellant in Crl. A.(J) No. 91/2022. Also heard Mr. S. C. Keyal, learned Special Public Prosecutor, NCB for the respondents.

3. The prosecution case, in brief, is that on 13.09.2018, at about 9.30 a.m., an information was received by one Phani Narzary, Intelligence Officer, NCB Guwahati from one Santosh Kumar, DC, SSB, 61 BN SSB Bhairabkunda, District Udalguri, Assam that 900 Chain BOP, SSB had intercepted 102.500 kg ganja in 17 packets along with two persons, namely Debeswar Basumatary and Shajan Karki, with two vehicles bearing Registration No. AS-12AC-4091 Mahindra (Bolero Pickup 2WD) and AS-01BU-0537 Maruti Suzuki (Swift Dzire VZI). Upon receipt of the said information, on 13.09.2018 at about 11:30 am, a team of NCB, Guwahati moved for Bhairabkunda and on reaching the said place, they seized Ganja from the possession of said two suspected persons namely, Debeswar Basumatary and Shajan Karki, along with two vehicles. Thereafter, one Shri Ulunkholal, Intelligence Officer, NCB Guwahati submitted written compliant before the Court for initiation of trial against the two accused persons. Accordingly, the learned Court below took cognizance of the case and framed charges under Section 20(b)(ii)(C)/29 of NDPS Act, 1985 and the contents of the charge were read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.

4. During trial, the prosecution examined as many as 7(seven) numbers of witnesses including the Investigating Officers and the initial informer-Santosh Kumar, DC, SSB. However, the defence did not examine any witnesses. The accused were also examined under Section 313 Cr.P.C.

5. Thereafter, the learned Special Judge, Udalguri, after hearing the parties and on perusal of records vide judgment and order dated 08.07.2022, passed in Special (NDPS) Case No. 06/2019, found the accused/appellants guilty and convicted them under Section 20(b)(ii)(c) of NDPS Act and sentenced them as aforesaid.

6. On being highly aggrieved and dissatisfied with the aforesaid judgment and order dated 08.07.2022, passed by the learned Special Judge, Udalguri in Special (NDPS) Case No. 06/2019, the present appeals have been preferred by the accused/appellants.

7. Mr. M. Biswas, learned counsel for the appellant in Crl. A. No. 97/2023, and Mr A. Chamuah, learned Legal Aid Counsel for the appellant in Crl. A.(J) No. 91/2022, submitted that the learned Trial Court below miserably failed to appreciate the evidence of prosecution witnesses in its true perspective and thus arrived at a wrong decision convicting the accused/appellants. The PW-1, in his deposition before the learned Trial Court below, has stated that the seized vehicles along with the suspected contrabands were taken to main camp of SSB Headquarter at Bhairabkunda and thereafter the seized contrabands were weighed and seizure list was prepared.

8. They further raised the following issues during the course of hearing:

(i) It is not proved that the contraband which was alleged to have been seized from the possession of the accused/appellants was ganja.

In this context, Mr. Biswas submitted that though the PW-4, i.e. the FSL Expert, stated that Exhibit DN