Conscious possession of narcotics is required for conviction under the NDPS Act; failure to comply with procedural safeguards can lead to acquittal.

JUDGMENT :

(Mridul Kumar Kalita, J.)

Heard Mr. N. Mahajan, learned counsel for the appellant. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State of Assam.

2. This Appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973, by the appellant Sri. Raj Narayan Das, impugning the judgment and order dated 14.10.2011, passed by the Court of the learned Additional learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 159(K)/2009, whereby the present appellant was convicted under Section 22 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 25,000/-, and in default of payment of fine to undergo further rigorous imprisonment for a period of another three months.

3. The facts relevant for adjudication of this instant Criminal Appeal, in brief, are as follows:

(i) That on 08.05.2009, one Sri. Kalyan Kumar Gogoi, lodged an FIR before the Officer-in-Charge of C.I.D Police Station, Ulubari, Guwahati, inter-alia, alleging that on 07.05.2009 at about 4.10 P.M., the first informant along with a team of police personnel under the supervision of Inspector K. K. Ahmed apprehended the present appellant at Durga Medicos located near Maligaon Railway Gate No. 3 while he was delivering 88 Nos. of Spasmo Proxyvon Capsules, 30 Nos. of Nitrosan 10 tablets to an addict at that place. It is also stated in the FIR that later on the said pharmacy was also searched and 72 Nos. of Spasmo Proxyvon capsules in 9 strips and loose 24 nos. of Corax cough syrup, 59 bottles and 360 bottles of Tyrex cough syrup were also seized from the said pharmacy. On interrogation of the appellant, he failed to produce any document with regard to the seized contraband.

(ii) On receipt of the said FIR, C. I. D. P. S. Case No.08/2009 under Section 22 (a) of the NDPS Act, 1985 read with section 27 of the Drugs and Cosmetics Act, 1940 was registered and investigation was initiated. On completion of the investigation, charge-sheet was laid against the present appellant under Section 22 (a) of the NDPS Act, 1985.

4. Though the appellant was arrested during the course of investigation, he was later on released on bail and he faced the trial remaining on bail. During trial, on 15.09.2009, learned Additional Sessions Judge, Kamrup, Guwahati after perusing the materials on record and after hearing both sides, framed charge under Section 22 (b) of the NDPS Act, 1985 and against the present appellant and when the said charge was read over and explained to the present appellant he pleaded not guilty to the said charge and claimed to be tried. During the course of the trial, five witnesses were examined by the prosecution side.

5. The appellant was also examined under Section 313 of the Code of Criminal Procedure, 1973 during which he pleaded his innocence and denied the prosecution evidence adduced by the prosecution witnesses against him.

6. However, after culmination of the trial, the learned Trial Court convicted the present appellant and sentenced him in the manner as already described in paragraph no. 2 hereinabove.

7. Before considering the rival submissions of the learned counsel for both sides, let me go through the evidence of the prosecution witnesses which is available on record.

8. PW-1, Sri. Dilip Khan has deposed that the appellant had a pharmacy, namely, Durga pharmacy at 4 No. R