The prosecution failed to prove conscious possession under the NDPS Act beyond reasonable doubt due to procedural discrepancies and lack of independent witness corroboration.

JUDGMENT :

Susmita Phukan Khaund, J.

Heard Mr. S. Borthakur, learned counsel for the appellant and Mr. P.S. Lahkar, learned Addl. P.P., Assam.

2. This appeal is preferred challenging the judgment and order dated 23.12.2010 passed by the learned Sessions Judge, Sivasagar in connection with Special Case No. 5 of 2008 convicting Sri. Dadul Mech (hereinafter the appellant) under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and sentencing him to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs. 2,000/- with default stipulation.

3. The brief facts leading to this case are that on 22.08.2008 at about 3:15 PM a naka checking was held jointly by 318 Field Regiment (Army) and the police at Panigash Area under Namtola OP. At about 3:50 PM the appellant was caught red handed along with a bag containing suspected ganja when the appellant tried to avoid the patrolling team. SI Ashim Borah (hereinafter referred to as the informant) seized the ganja (cannabis) from the possession of the appellant after following the proper procedure of law in presence of SDPO of Charaideo, Sonari and other witnesses. Sample was also drawn from the lot and forwarded for forensic examination to Forensic Science Laboratory, (FSL for short), Guwahati. The appellant was arrested as per Section 42 of the NDPS Act and forwarded to the SDJM at Sonari. On receipt of the expert opinion, the informant lodged the FIR (Ext.-9). The FIR was registered as Sonari P.S. Case No. 205 of 2008 under section 20 of the NDPS act and ASI D.K. Sharma (hereinafter the IO) was entrusted with the investigation.

4. The IO embarked upon the investigation. He prepared the sketch-map and recorded the statements of the witnesses. He conducted the investigation and on completion of investigation submitted charge-sheet against the appellant under section 20 of the NDPS Act.

5. At the commencement of trial a formal charge under section 20(b)(ii)(B) of the NDPS Act was framed and read over and explained to the appellant who adjured his guilt and claimed innocence. To connect the appellant to the crime, the prosecution adduced the evidence of seven (7) witnesses including the Investigating Officer (IO in short) and the defence cross-examined the witnesses to refute the charges.

6. The statement of the appellant was recorded under section 313 Cr.PC. To the incriminating circumstances projected through the evidence, the answers of the appellant under section 313 Cr.PC depicts a plea of denial. In his statement under section 313 Cr.PC the appellant has stated that he was not carrying any ganja. He was standing by the road side when another person who was carrying ganja was apprehended. The army caught a boy with a bag in his motor-cycle and the army called the police. The police caught the boy along with him as he was standing near the boy who was carrying a bag and he was forcefully taken to Namtala OP and he was arrested with false charges.

7. The learned trial Court delineated on the following point to decide the case:-

"Whether the accused, on 22.08.2008 at about 3:50 p.m. at Panigash area, under Sonari P.S., was found possessing one bag containing 3 kgs. 500 grams of cannabis (ganja), without lawful authority?"

8. (a) It has been held by the learned trial Court that the prosecution case has not been vitiated by the reason that PW-1, despite being the informant was als