In the absence of evidence proving a conspiracy or joint enterprise, contraband seized from separate carriers cannot be aggregated to constitute a commercial quantity, requiring the court to assess the liability of each individual based solely on the specific amount of contraband in their personal possession.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. S Mitra, learned counsel for the appellant in Criminal Appeal No. 219/2023 and Mr. M Pathak, learned counsel for the appellants in Criminal Appeal No. 171/2023. Also heard Mr. R R Kaushik, learned Additional Public Prosecutor, Assam for the State.

2. These two appeals have arisen out of the same impugned judgment and order dated 09.03.2023 passed by the learned Special Judge, Bongaigaon in Special (Nar) Case No. 23(BGN)/2022, convicting all the three appellants under Section 20 (b)(ii) (C) of the ND&PS Act. The appellants have thereafter been sentenced to undergo rigorous imprisonment for 15 (fifteen) years and to pay a fine of Rs. 1,00,000 (one lakh) each, in default of payment of fine, further simple imprisonment for 6 (six) months.

3. The prosecution’s case in brief is that the appellants were apprehended by the police on 13.02.2022 at about 13:38 PM at New Bongaigaon Railway Station on their arrival on the Deogarh Express Train. A search of the blue trolley bag carried by Suraj Kumar Roy and the plastic sack held by the other 2 appellants, showed that they had carried a total of 21.1 Kgs of Ganja. The blue trolley bag of Suraj Kr. Roy contained 10.21 Kgs. of Ganja, while the plastic sack belonging to the other two appellants, i.e., Bipin Kumar and Vira Mahato contained 10.8 Kgs. of Ganja.

4. The counsels for the appellants submit that the prosecution had failed to establish that the appellants were in conscious possession of the seized contraband. They submit that the search and seizure of the contraband has not proved that the appellants were in possession of the Ganja, as per the evidence given by the prosecution witnesses. Further, the prosecution has failed to prove that the contraband was in the secured custody of the police, in terms of the requirements of Section 55 NDPS Act, i.e. there was nothing to show that the contraband was kept in the proper custody of the Police, between the time of the seizure and production of the same before the Magistrate in question.

5. The learned counsels for the appellants also submit that there has been non- compliance of Section 41 of the NDPS Act, inasmuch as, there is nothing to show as to whether the PW-4 could have searched for the contraband. Further, PW-6 stated in his evidence that he had not made a physical seizure of the contraband. They also submit that the prosecution has failed to prove the foundational facts so as to attract the rigours of section 35 of the NDPS Act, which raises the presumption of culpable mental state on the part of the accused.

6. The learned counsels for the appellants also submit that the appellant Suraj Kumar Roy had bought a ticket for Coach No. B-1, while the train tickets for the other two appellants were in relation to Coach No. S-2. The above thus showed that the appellants were not working together. Further, the explanation given by all the 3 (three) appellants under section 313 Cr.P.C., showed that the appellant Suraj Kumar Roy did not know the other two appellants and vice-versa.

7. The counsels for the appellants submit that while 6 (six) Police personnel had taken part in the search and arrest of the appellants, all the Police personnel were not made prosecution witnesses and as such, not examined. They submit that the above was only to ensure that the illegal arrest and seizure by the Police would not come out in the open during