The prosecution's failure to produce seized contraband and corroborate police testimony undermines the case, leading to acquittal on benefit of doubt.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. S. Das, learned counsel for the appellants and also heard Mr. B. Sarma, learned Additional Public Prosecutor, Assam, appearing for the State respondent.

2. Judgment and order dated 03.01.2024 passed by the learned Special Judge (Addl.), Dhubri, (hereinafter „Trial Court‟ for short) in Special Case No.394/2022 is impugned in this appeal, under Section 374 read with Section 389 of the Code of Criminal Procedure, 1973 and Section 36B of the Narcotic Drugs and Psychotropic Substances Act (NDPS), Act, 1985.

3. The background facts, leading to filing of the present criminal appeal, are briefly stated as under:-

“On 12.07.2022, at about 10:30 p.m., acting on a tip off, S.I. Chandan Rout, I/c of Bazar T.O.P. under Dhubri P.S. conducted search in the dwelling house of Raju @ Goljar Uddin and Gafur Uddin @ Rakesh and found large quantity of suspected contrabands i.e. cough syrups stored in their house for selling in the locality. Accordingly, the I.O. seized total 13 bottles of Eskuf cough syrups, having batch No.LESL-346, Mfd. dt. 08/2021 and 11 bottles, having batch No.LESL-346, Mfd. dt. 08/2021, from the room of the present appellants, namely, Raju and Rakesh, respectively. Thereafter, the informant had lodged one FIR with the Officer-in-Charge, Dhubri P.S., upon which Dhubri P.S. Case No.363/2022 had been registered under Section 22(c) of the NDPS Act and investigation was carried out and on completion of investigation the I.O. had laid charge- sheet against the appellants to stand trial in the Court under Section 22(c)/25 of the NDPS Act.

Thereafter, the learned Trial Court after hearing both the parties, had framed charges against the present appellants under Section 22(c)/25 of the NDPS Act and on being read and explained over, both the appellants pleaded not guilty to the same and claimed to be tried.

Thereafter, the learned Trial Court had examined as many as 10 witnesses and also examined one Court witness and thereafter, examined the appellants under Section 313 Cr.P.C. And thereafter, hearing arguments of both the parties, found the present appellants guilty under Section 22(c) of the NDPS Act and convicted them accordingly under the said Section of law. But, the learned Trial Court had acquitted them of the charge under Section 25 of the NDPS Act. Then, after hearing the appellants under Section 235(2) Cr.P.C., the learned Trial Court has sentenced the appellants to undergo rigorous imprisonment for 10(ten) years and also to pay a fine of Rs.1,00,000/- each, in default to undergo rigorous imprisonment for another one year.”

4. Being aggrieved, the appellants approached this Court by filing the present appeal on the following grounds:-

(i) That, the learned Trial Court had passed the impugned judgment and order mechanically and without addressing the points raised and also the precedent cited before him.

(ii) That, the learned Trial Court had failed to appreciate the evidence in its proper perspective while holding guilty of the accused under Section 22(c) of the NDPS Act.

(iii) That, the learned Trial Court had failed to consider that the mandatory provisions of the NDPS Act have not been complied with by police and convicted the appellants illegally.

(iv) That, the learned Trial Court had fa