The prosecution must prove possession of contraband beyond reasonable doubt, and the absence of essential witnesses and physical evidence compromises the conviction.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

1. The present appeal is directed against the judgment and order of conviction dated 06.07.2007 and sentence dated 09.07.2007 passed by learned Sessions Judge, West Singhbhum at Chaibasa in G.R. Case No.63 of 1995 whereby and whereunder, the sole appellant has been held guilty for the offence under section 20(b) of Narcotic Drugs and Psychotropic Substance Act, 1985 and sentenced to undergo R.I. of 5 years with fine of Rs.50,000/- and in default payment of fine amount, he was further sentenced R.I. of 2 years.

FACTUAL MATRIX

2. Factual matrix giving rise to this appeal is that the prosecution case is based on the written report of one Santosh Kumar, A.S.I. Sadar, P.S. Chaibasa (Sadar) before Officer-in-Charge, Chaibasa Sadar Police Station stating therein that during course of patrolling in Assembly Election on 02.02.1995 at about 1:00 AM, he was checking the vehicles, meanwhile, one bus bearing Reg. No. OSJ-401 was stopped for checking then one person was apprehended along with one briefcase(attache) under suspicious circumstances. It is alleged that the said attache was opened and then it was found containing 2 ½ kg of ganja and the apprehended person disclosed his name as Ashok Kumar (appellant). On the basis of self written statement of the informant, F.I.R. was registered for the offence under section 47 of EXCISE ACT but later on, charge-sheet was submitted for the offence under section 20 of N.D.P.S. Act. The accused denied the charges and claimed to be tried.

3. In the course of trial, altogether 5 witnesses have been examined by the prosecution namely:-

P.W.1 Yogendra Prasad Singh, Inspector of Police, formal in nature P.W.2 Ram Kaul Prasad P.W.3, Ashok Kumar Yadav, both members of the Raiding Party belonging to the Department of Police P.W.4 Khokhan Kumar Rakshit P.W.5 Pasupati Choudhary, formal in nature.

4. Apart from oral testimony of the witnesses, following documentary evidences have been adduced:

Ext.1 is the FIR Ext.2 is the seizure list Ext.3 is the written report Ext.4 is formal FIR Ext.5. is search-cum-seizure list Ext.6 is charge-sheet Ext.7 is F.S.L. Report and Ext.8 is Supplementary Charge-sheet under section20(b) of N.D.P.S. Act.

5. The accused after conclusion of trial has been held guilty and sentenced as stated above, which has been assailed in this appeal.

6. Learned senior counsel for the appellant assailing the impugned judgment and order of conviction and sentence of the appellant has argued that learned trial court has failed to consider that due to non-examination of Investigating Officer, the defence has seriously been prejudiced. Out of 5 witnesses examined in this case, P.W.1 is a formal witness and P.W.4 is a bus passenger, who have not supported the prosecution case. Two seizure list witnesses namely Mani Ram Mundri and Kundkuli Giri have also not been examined during trial to prove the recovery of alleged ganja from possession of the appellant. The attache, which was found containing ganja, has also not been brought on record and proved to belong to the appellant. P.W.2 Ram Kaul Prasad and P.W.3 Ashok Kumar Yadav, who are constables have also failed to prove any recovery of ganja from the possession of the appellant and have not identified him behind the dock. P.W.5 Pasupati Chaudhary has only conducted partial investigation of the case. It is further submitted that no independent witness has been examined among the public or the passengers, who were travelling in the said bus. There is no credit worthy credence to establish the guilt of the appellant. The appellant has never claimed to have any briefcase or attache with him rather he was arrested on the basis to su