The prosecution must comply with procedural safeguards under the NDPS Act, and possession of narcotics can be established through actual or constructive possession, with the burden of proof shifting to the accused once foundational facts are established.

JUDGMENT :

MITALI THAKURIA, J.

Heard Mr. A. Ahmed, learned counsel for the applicant. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent.

2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 01.10.2022, passed by the learned Special Judge No. 2, Nagaon in Special NDPS Case No. 194/2021, convicting the accused/appellant under Section 22(C) of NDPS Act and sentencing him to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo further S.I. for 6 months.

3. The prosecution story, in brief, is that an ejahar dated 23.09.2021 was lodged by one Ajay Barman, Officer-In-Charge, Dhing Police Station (PW-3), alleging that a secret information was received on 22.09.2021, at about 8.10 a.m., from a reliable source that the accused/appellant went to Dimapur to procure illegal arms and was returning on the same date by a bus along with arms. The said information was accordingly shared with Additional S.P. (HQ). Later on, the informant received the information from the Officer-In-Charge, Dillai P.S. (Karbi Anglong) that they have detained the appellant along with one Rashidul Haque. It is further alleged that during interrogation, the appellant disclosed about his previous antecedents involving himself in dacoity cases. Further it also came to know during interrogation that the appellant is also a drug dealer and on the basis of the said information, the house of the appellant was searched at around 11.30 p.m. along with other officials and the independent witnesses. During search, they recovered some black colour polythene bag containing 326 numbers of strips of paracetamol, dicyclomine Hydrocholoride and Tramadol Hydrochloride capsules containing 8 capsules in each strip, each strip total 2608 numbers of capsules from one lock store room and subsequently 107 numbers of black colour polythene bags, suspected to be used to conceal and carry soap cases containing heroin drugs and 209 numbers of rubber band, suspected to be used to tie soap cases containing heroin drugs from the cupboard in the bed room. Accordingly, he lodged the F.I.R. against the present appellant along with one Rashidul Haque.

4. After receipt of the F.I.R. in the police station, a case was registered, being Dhing P.S. Case No. 552/2021, under Sections 22(C)/29 of NDPS Act, and after investigation, the police also filed charge-sheet against the present appellants under Section 22(C) of NDPS Act. Thereafter, the cognizance of offence was also taken by the learned Special Judge under Sections 22(C)/29 of the NDPS Act and the charges were also framed under the said Sections of law, to which the appellant pleaded not guilty and claimed to be tried. During trial of the case, the prosecution examined 4 (four) numbers of witnesses including the Scientific Officer. The statement of the accused/appellant was recorded under Section 313 Cr.P.C. wherein he took the plea of denial, but did not adduce any evidence to substantiate his plea of innocence. Accordingly, after hearing the arguments put forwarded by both sides, the learned Special Judge No. 2, Nagaon, passed the impugned judgment and order dated 01.10.2022 convicting the accused/appellant and further acquitted the 3 (three) others from the said charge. Hence, on being highly aggrieved and dissatisfied with the impugned judgment and order of conviction dated 01.10.2022, the present appeal has been preferred by the accused/appellant.

5. It is submitted by Mr. Ahmed, learned counsel for the appellant, that the learned Special Judge No. 2, Nagaon committed grave error and mistake while passing the order of conviction against the present accused/appellant. The impugned judgment and order was passed without scrutinizing the evidence as well as other materials on record and hence, the findings arrived at by the learned Special Judge No. 2, Nagaon is wrong, perverse and liable to be set aside and quashed. He