Gauhati High Court
Appellant vs The State Of Assam And Anr on 29 November, 2023
Page No.# 1/21
GAHC010186652021
In the Gauhati High Court
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl. APPl. No. 186/2021
DebojitGogoi
S/O KunjaGogoi, R/O Jyotinagar P.S. And Dist. Golaghat, Assam
........................... Appellant
VERSUS
The State Of Assam And Anr.
Rep. By The Pp, Assam
2:NarendraNathBarik
S/O Lt. Deben Barik
Si OfGolaghat Police Station
R/O Jorhat
P.S. Jorhat
Assam
.................... Respondents
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocate for the Appellant : Mr.R.J. Das, Advocate
Advocate for the Respondent : Ms. A. Begum,learned Addl. P.P.
Date of Hearing : 25.07.2023
Date of Judgment : 29.11.2023
Page No.# 2/21
JUDGMENT & ORDER (CAV)
1. Heard Mr.R.J. Das, learned counsel appearing for the petitioner. Also heard
Ms. A. Begum, the learned Additional Public Prosecutor representing the State
of Assam.
2. This is an appeal under Section 374(2) of the Code of Criminal Procedure,
1973 (Cr.P.C. for short) challenging the Judgment and Order dated 04.10.2021
passed by the learned Sessions Judge, Golaghat in connection with Spl.
(N.D.P.S) Case No. 08/2019, convicting Sri DebojitGogoi (herein after referred to
as the accused) under Section 20(b) (ii) (C) of the Narcotics and Psychotropic
Substances, Act, 1985 (NDPS Act for short) and sentencing him to undergo
rigorous imprisonment for 10(ten) years and a fine of Rs. 1,00,000/- with
default stipulation.
3. The genesis of the case was that on 01.04.2019 at about 8.45 A.M., on the
basis of a tip off and on the approval of the Superintendent of Police, (SP for
short), Golaghat, Sri NarendraNathBarik, TSI of Golaghat P.S. (hereinafter the
informant) conducted a search of a vehicle bearing registration No. AS-01-AU-
Page No.# 3/21
8094, a Bolero, at the premises of the rented house of the accused at
Jyotinagar and recovered 92 Kgs of suspected 'cannabis' from the secret
chamber of the Bolero vehicle. The informant seized the recovered cannabis in
presence of the witnesses, and at the spot the informant collected 2 (two)
samples of 24 gms. each from the bulk, for forwarding the same to the
Directorate of Forensic Science (DFS for short) for chemical examination. The
informant thereafter, arrested the accused, as per Section 41 of Cr.P.C and
forwarded him to the Court. The seizure list was also produced before the Court
and thereafter, the samples were forwarded to the DFS.
4. On 18.05.2019, an ejahar was lodged by the informant, which was
registered by the O/C of Golaghat P.S. as Golaghat P.S. Case No. 539/2019,
under Section 20(C) of the NDPS Act and the O/C embarked upon the
investigation. He visited the place of occurrence and recorded the statement of
the witnesses. He prepared the sketch-map and on completion of investigation
submitted charge-sheet against the accused under Section 20(C) of the NDPS
Act.
5. During trial, a formal charge was framed under Section 20(b)(ii)(c) of the
NDPS Act and the accused absorbed his guilt and claimed innocence to connect
the accused to the crime. The prosecution adduced the evidence of 8 (eight)
Page No.# 4/21
witnesses and the defence cross-examined the witnesses to refute the charges.
On the incriminating materials projected against the accused, several questions
were asked to the accused under Section 313 Cr.P.C. and his responses were
recorded. The learned trial court delineated the following points to decide the
case:-
"Whether the accused on 01.04.2019, at about 8-45 A.M., at Jyoti Nagar, Golaghat, under
Golaghat Police Station, District - Golaghat, possessed 92 Kg. of ganja in his Bolero vehicle
bearing registration No. AS-01-AU-8094 in contravention of the NDPS Act and Rules made
thereunder, and thereby, committed an offence punishable under Section 20(b)(ii)(c) of NDPS
Act as alleged ?"
30. Thus, from the evidence of the witnesses, particularly P.W.1, P.W.2, P.W.3 and P.W.4, it
is crystal clear that accused was the driver and in possession of the seized Bolero vehicle
bearing registration No. AS-01-AU-8094, at the relevant time and he parked the said vehicle
in front of his house. It is also in the evidence of independent witness ShriNakulSaikia (P.W.2)
that accused handed over the keys of the vehicle to police and police found 92 Kgs of ganja,
contained in packets, kept in different chambers under seat, chassis etc. of the said vehicle.
****************
32. It is true that police could not find the owner of the vehicle, namely Prodip Ali of
Tirual, Furkating but the fact remains that it was the accused, who had controlled in
possession of the vehicle, in as much as, it was the accused, who handed over the key of the
vehicle, to police as per evidence given by the independent witness (P.W.2). There is no
evidence on record that this independent witness or any other prosecution witness had any
Page No.# 5/21
enmity towards the accused to falsely implicate him, in this case.
****************
43. From the evidence of P.W.5, 1.e. search and seizing officer of this case, it is seen that
he collected the samples from the recovered seized packets of ganja in presence of
witnesses. It is also in his evidence that he sent the seized samples to the Forensic Science
Laboratory. Kahilipara, Guwahati on the same date of seizure, i.e. 01.04.2019. The seizure list
clearly shows that it was prepared on 01.04.2019, at about 8-45 A.M. and the same was sent
to the Forensic Science Laboratory, Kahilipara, Guwahati, at about 6 P.M., as per evidence of
P.W.5. Further, P.W.5 denied defence suggestion that he kept the sealed packets in his
custody and not in the custody of Police Station. The seizing officer, of course, could not
produce the relevant entry of Malkhana Register of his Police Station, but he affirmed that
M.R. Number was given in the seizure list, Hence, I find no reason to disbelieve the evidence
of police officer (P.W.5) regarding keeping of sample, in safe custody till it was sent to FSL for
examination, on the date of seizure itself.
44. There is no material on record to show that P.W.5 had any animosity with the
accused. Therefore, the P.W.5 being public officer having conducted the search and seizure,
as per law, there was rather a presumption in favour of genuineness of his official act under
Section 114, illustration (e) of the Evidence Act.
6. Learned Counsel for the appellate laid stress in his argument that the
secret chambers found in the vehicle of Bolero make bearing registration No.
AS-01-AU-8094 was found by the police during investigation without being led
Page No.# 6/21
by the accused. The colour of the vehicle mentioned by one witness was white
and on the contrary, the police stated that the vehicle was black in colour.The
owner of the vehicle was not made either an accused or a witness. The
petitioner was a driver of the vehicle and not owner of the vehicle. The accused
was not at all aware of the secret chamber of the vehicle. Being a driver he was
plying the vehicle, but he was not wary that Ganja was being transported
through his vehicle. The samples were not drawn as per proper procedure as
the statements of the witness reveal that 50 grams of samples were drawn,
which is not according to the standing order 1/89. The seizure was conducted in
a slip shod manner and only two samples out of 92 packets were drawn. The
deposition of the witnesses clearly reflects that Section 42 of the act was not
complied with. Investigation had already commenced and the FIR was lodged
after a prolonged period. The time mentioned in the FIR is not similar to the
time given by the witnesses. A Close scrutiny of the evidence will reveal that
even Prodip Ali is not the registered owner of the vehicle. The edifice of a
prosecution case relating to NDPS Act that is conscious position was not proved.
7. It is submitted by the learned counsel for the accused that physical
possession of the cannabis in conjunction with the control over the contraband
has to be proved, and has relied on the decision of Hon'blethe Supreme Court in
Mohan LalVs. State of Rajasthan (2015) 6 SCC 222 . The leading to
Page No.# 7/21
discovery of the contraband has not been proved as per Section 27 of the
Indian Evidence Act, 1872,(the Evidence Act for short). The learned counsel for
the accused has also relied on the decision of this court in Malber Khan &Anr.
Vs. State of Assam &Anr.2023 (2) GLT 883. It is vehemently and fervently
submitted that the trial court extracted only that part of the Judgmentin
Malber Khan's case (supra)which goes against the accused. The perpetrator
of the crime has not been brought to book and an innocent person has been
roped in connection with this case.
8. Per contra, the learned Addl. P.P. laid stress in his argument that only one
witness has stated that the accused drives various vehicles. Conscious
possession has been proved beyond a reasonable doubt. It has been proved
that the accused was driving the vehicle and was transporting huge amount of
ganja. The learned Addl. P.P. has supported the decision of the trial court and
has prayed to dismiss the appeal.
9. To decide this case, in its proper perspective, the evidence is reappraised.
The landlord of the house, where the accused was residing as a tenant,
NandeswarGogoi, deposed as PW-1 that the incident occurred on 01.04.2019. At
about 6.00 A.M., the police came to the accused person's house and asked the
accused to open the door of the Bolero vehicle. The vehicle was parked inside
Page No.# 8/21
the premises of his house. After opening the door of the vehicle,the police found
some packets of 'ganja' inside the vehicle and seized the same, after weighing
the ganja. He gave his signature on the seizure list and proved his signature as
Exhibit-1(1) on the seizure list marked as Exhibit-1. He proved his signature on
the seizure list relating to the seizure of the Bolero as Exhibit-2 (1).
10. In his cross examination, PW-1 deposed that the vehicle was parked on
the gateway of the accused person's house. He could not recall the number of
packets found by the police inside the vehicle. He also did not see the police
weighing the ganja and he did not know what was written on the seizure list.He
heard from the police that the seized packets contained ganja and he has given
his evidence, as per the version of the police. The Bolero was white in colour
and he did not know if some other person brought the Bolero and parked the
same at the spot. He did not see the Bolero being unlocked with the key. He
also did not witness the police sealing the packets of ganja. The police did not
show any identification mark after showing him the packets.
11. A neighbour Sri NakulSaikia deposed as PW-2 that the incident occurred in
the month of April in the year, 2009.When, he woke up in the morning, he saw
the police who came to his house and called him. The police also called the
accused and asked the accused to open the door of the Bolero which was
Page No.# 9/21
parked on the gateway. The accused gave the keys of the Bolero vehicle to the
police and he returned to his house. After some time, the police called the
accused and told him that they found some packets of ganja in the vehicle. The
police took one weighing machine and weighed the ganja. The police seized the
ganja and the Bolero vehicle, and took his signature on the seizure list. He
proved his signature relating to seizure of the weighing machine as Exhibit-
1(2)and his signature relating to the seizure of the ganja and the Bolero as
Exhibit-2(2). He identified the seized ganja as material Exhibit-1.
12. In his cross examination,PW-2 deposed that he did not know how much
ganja was recovered by the police from the vehicle. He did not witness sealing
of the packets of ganja. He has stated that the said packets contained ganja as
per version of the police. He did not know the owner of the vehicle.
13. Thus, it is apparent from the evidence of PW-1 and PW-2 that ganja was
seized from the Bolero bearing registration No. AS-01-AU-8094.The learned
counsel for the accused laid stress in his argument that it is also apparent from
the evidence of PW-2 that theaccused handed over the keys of the Bolero and
walked away, while the police examined the Bolero and recovered the ganja.
The accused was not aware of the secret chamber and he did not know where
the ganja was kept and there is no leading to discovery of ganja. The absence
Page No.# 10/21
of disclosure statement proves that the accused did not show where the ganja
was kept, but the police themselves discovered the place where the ganja was
kept concealed. Although PW-2 has identified the 'ganja' as Material Exhibit-1,
yet his evidence that he did not know that the seized article was ganja fails to
prove the seizure lists.
14. PWs-1 and 2 have deposed in their cross-examinations that they came to
know about the seized ganja as the Police told them that the seized article was
ganja. Although they identified the signatures in the seizure lists, Exhibits- 1 and
2, they have not supported the seizure of the ganja as they have stated that
they did not know that the seized article was ganja.
15. PW-3, DipakDey deposed that in the month of April, 2019, at about 07:00
am, the Police came to his shop and seized his weighing machine. He saw a
Bolero vehicle at the place of occurrence and the Police found 92 kgs of ganja
and he weighed the ganja. The Police also apprehended the accused. He too
identified his signature on the Seizure List as Exhibit-1(3), but he stated that he
did not see the ganja in the Court. Thus, PW-3 too failed to prove the seizure of
ganja.
16. MoheswarSonowal deposed as PW-4 that the accused was the tenant of
NandeswarGogoi (PW-1). The incident occurred on 01.04.2019. At about 07:00
Page No.# 11/21
am, the Police came to his house and called him to the house of the accused.
The Police showed him ganja like substance, which was found in the Bolero
vehicle, which was parked on the public road. The accused was the driver of the
Bolero vehicle. In his cross-examination, PW-4 stated that he did not know, who
was the owner of the Bolero vehicle and where the ganja was kept inside the
vehicle. He had never seen the accused driving the vehicle. The accused used to
drive vehicles of other persons. Thus, the evidence of PW-4 does not support
the prosecution's contention tha the accused was in conscious possession of
ganja.
17. The learned counsel for the accused laid stress in his argument that the
evidence of PW-3 and PW-4 does not at all implicate that the accused kept the
ganja inside the Bolero vehicle. Both the witnesses, PW-3 and PW-4 are well
acquainted with the accused, but PW-4 never saw the accused driving the
Bolero vehicle, although PW-4 had seen the accused driving other vehicles,
belonging to other owners. This argument of the learned counsel holds no
water. The evidence of PW-3 clearly depicts that the weighing machine from his
shop was taken to weigh the ganja and his evidence clearly proved that 92 kgs
of ganja was weighed by him, at the time of the incident. The evidence of PW-3
and PW-4, so far as the recovery of ganja is relevant. PW-4 may have not seen
the secret chamber under which, the ganja was concealed, but he has
Page No.# 12/21
categorically stated that the ganja was kept inside the Bolero vehicle. The
argument of the learned counsel for the accused that the PW-1 and PW-2 have
stated that the Bolero was parked on the gateway, is contrary to the evidence of
PW-4, who stated that the Bolero was parked on the public road.
18. PW-5, ShriNarendraNathBarik deposed that from 01.04.2019, he was
posted at Golaghat Police Station as TSI. On that day, he received an
information that one black coloured Bolero car had entered at Jyoti Nagar, under
the Golaghat Police Station, containing suspected ganja allegedly transported
from Tripura. Then, he entered the information as GD Entry No. 935, dated
01.04.2019. He informed the SP, Golaghat, who guided him to the spot. He
proved the extract copy of the GD Entry as Exhibit-3 and Exhibit-3 (1) as his
signature. PW-5 further deposed that on reaching the spot, he found one black
coloured Bolero vehicle, bearing Registration No. AS01-AU-8094 and the vehicle
was kept in the campus of NandeswarGogoi. He came to know that the driver of
the vehicle was the present accused and the owner was Prodip Ali of Tiruwal,
Furkating. The accused was a tenant of NandeswarGogoi (PW-1). He found the
accused in his house and he called the witnesses and searched the vehicle. He
found 92 kgs of suspected ganja inside a chamber made inside the Bolero
vehicle. The chamber was made under the seat. Vide Exhibit-1, he seized one
weighing machine (Dogapalla) and he proved his signature on the Seizure List
Page No.# 13/21
as Exhibit-1 (4). He seized the recovered ganja along with the Bolero vehicle
vide Exhibit-2 and he proved his signature on the Exhibit-2 as Exhibit - 2 (3). He
proved and identified the seized ganja in the Court as material Exhibit-1.
19. PW-5 further deposed that he brought the accused along with the seized
articles to the Police Station. He also prepared the sketch map of the PO. He
proved the sketch map of the PO as Exhibit-4 and his signature on the sketch
map as Exhibit - 4 (1). He further stated that there were 92 packets of
suspected ganja and he drew samples of 24 gms. ofganja from two packets in
the PO itself in presence of witnesses. He forwarded the seized samples to the
DFS, Kahilipara, through the SP, Golaghat, for chemical examination. He got the
report of the chemical examination on 18.05.2019, which was a positive report
of ganja. Then, he lodged the FIR with the Police at Golaghat Police Station. He
proved the FIR as Exhibit-6 and Exhibit- 6 (1) as his signature. The remaining
part of the investigation was conducted by SI Dipak Bora, who recorded the
statements of the witnesses. He proved the written permission received from SP,
Golaghat, as Exhibit-7.
20. The learned counsel for the accused submitted that PW-1 has stated that
the Bolero was a white coloured vehicle, whereas the PW-5 has stated that the
Bolero was a black-coloured vehicle. 92 packets of ganja were seized, but he
Page No.# 14/21
drew samples of 24 gms of ganja from only two packets. It was the duty of the
IO to draw samples in duplicate from each packet, according to the Standing
Order 1 of 1989. This argument is relevant. There was indeed a lapse in the
investigation. There is no explanation if the packets were of same size and
weight, which prompted the IO to draw duplicate samples of 24 gms. only. The
procedure would be correct if duplicate samples from one packet is drawn as
was in this case, if the other packets are of same size and weight. This has not
been mentioned in the seizure list or in any other document. The other
contradiction which is relevant is that PW-3 has stated that the vehicle was
parked on the public road, whereas the other witnesses have stated that the
vehicle was parked in the campus or the gateway. The sketch map marked as
Exhibit-4 is very vague.
21. Reverting back to the evidence, PW-5 stated in his cross-examination that
when he received a tip-off, he did not inform the higher authority about the
information of transportation of huge cache of ganja from Tripura. He received
the information from the SP, Golaghat, in writing. He has also admitted that
Exhibit-7 does not contain any office seal. He has also admitted in his cross-
examination that he could not record the statement of the owner of the vehicle
as he could not trace out the owner. He has also admitted that he had not seen
the sealed packet of ganja in the Court. He sent the seized articles to DFS on
Page No.# 15/21
01.04.2019, for chemical examination. The sample was drawn at 08:45 am, but
he has not mentioned in his Case Diary that the sample was sent to the DFS,
Kahilipara, at 6:00 pm.
22. PW-6, ShriBiswajitBaruah, deposed that the incident took place on
01.04.2019, near his house. The accused was a tenant who used to reside on
the backside of his house. In the morning, he saw the accused was handcuffed
and the Police opened one Bolero vehicle, which was in the campus of the
accused person's house. The Police recovered 92 kgs of bhang (ganja) inside
the vehicle. The articles were kept in different chambers of the vehicle. The
Police brought one weighing scale and weighed the recovered ganja. He proved
his signature on the seizure list as Exhibit-1 (5) and 2 (4). He identified the
ganja produced in the Court as material Exhibit-1.
23. ShriDhrubaJyotiHazarika deposed as PW-7 that on 02.04.2019, he was
working as Deputy Director at DFS, Assam. On that day, he received a seal
parcel in connection with Golaghat PS GDE No. 935, dated 01.04.2019. The
parcel consisted of one exhibit enclosed in a sealed envelope cover. The
facsimile of the seal was found to be SP, Golaghat.
Description of Articles:
One sealed envelop, marked as Exhibit-A having a closed polythene packet,
Page No.# 16/21
containing 24 gms. dry plant material which was marked by him as DN-
199/2019.
Result of Examination:
Ext.-DN-199/2019 is the test result which was positive for cannabis (ganja). He
proved his report as Exhibit-5 and his signature on the report as Exhibit-5(1).
His report was forwarded by the Director, Shri G N Deka. He proved the
forwarding letter as Exhibit-8 and he identified the signature of Shri G N Deka as
Exhibit-8(1).
24. In his cross-examination, he stated that he had not seen the packet,
which was received for chemical examination, in the Court. He could not recall if
there was any signature of any witness near the seal of the SP, Golaghat in the
packet. He has not mentioned under what procedure, he had examined the
seized articles. He has not mentioned, at what time he received the seized
packet on 02.04.2019.
25. The IO, Sri Dipak Bora deposed as PW-8 that on 01.04.2019, he was
posted as OC at Golaghat Police Station. On that day, at about 06:00 am, he
received an information that a Bolero vehicle coming from Tripura has reached
Golaghat town and the vehicle was transporting contraband articles. He
registered the GD Entry No. 935, dated 01.04.2019. He proved the extract copy
of GD Entry as Exhibit-3. He then entrusted SI NarendranathBarik to investigate
the matter. On 18.05.2019, he received back the Case Diary from the Sub-
Page No.# 17/21
Inspector. He collected the forensic report of the seized articles from the DFS,
Guwahati and submitted charge sheet against the present accused, being CS
No. 154/2019, dated 19.05.2019, under Section 20(C) of the NDPS Act. He
proved the chargesheet as Exhibit-9 and his signature on the charge sheet as
Exhibit- 9(1). SI Sri NarendraNathBarik lodged the FIR on 18.05.2019 and he
received and registered the same as Golaghat PS Case No. 39/2019, under
Section 20(C) of the NDPS Act. He proved the FIR as Exhibit-6 and his signature
with endorsement as Exhibit-6(2).
26. His cross-examination is not noteworthy.
27. The core question in this case is that, whether the accused was wary that
he was transporting ganja, and, whether the owner is responsible for
transporting ganja? The accused tried to shift the blame to the owner of the
vehicle as he feigned ignorance relating to transportation of ganja through the
vehicle driven by him. It is apparent from the seizure list marked as Exhibit-2,
that 92 kgs of ganja was seized from the Bolero vehicle, bearing Registration
No. AS01-AU-8094. The colour of the vehicle is not mentioned in the seizure list.
It has also not been described in the seizure list if there were secret chambers
under the seat of the vehicle. There is no evidence that the accused led to the
recovery of the ganja from the secret chamber under the seat inside the vehicle.
28. The evidence reveals that the incident occurred on 01.04.2019. There is
Page No.# 18/21
no evidence that Section 52(A) (2) of the NDPS Act was followed during seizure
of the cannabis, which is also another lacuna in the investigation. No inventory
was prepared as per Section 52(A)(2) of the NDPS Act, nor any certificate of
correctness of the inventory so prepared was proved in connection this case.
29. Not a single witness including the official witnesses or the independent
witnesses have stated that the accused led to the recovery of the seized ganja.
The ganja (cannabis) was found in the Bolero vehicle, but the accused has
pleaded innocence and he has pleaded that he was not aware that the ganja
was being transported through his vehicle. The IO (PW-8) has also not stated
that the accused showed him the secret chamber, where the ganja was kept
concealed. No endeavour was made by the IO to find the owner of the vehicle
nor was the owner made an accused or a witness in this case. When the
prosecution has failed to prove the foundational facts of the case, the
presumption under Section 35 of the Act does not operate against the present
petitioner and the present petitioner cannot be made liable under Section 20(b)
(ii)(C) of the NDPS Act. The prosecution has failed to prove conscious
possession due to the discrepancies in the investigation as well in the
prosecution. Presumption of culpable mental state does not operate against the
accused.
30. The learned counsel for the accused appellant relied on the decision of a
Page No.# 19/21
Division Bench of this Court in Malber Khan &Anr. -vs- State of Assam
&Anr., reported in 2023 (2) GLT 883, wherein it has been held and observed
that-
"23. Law is well settled that even in a case coming within the ambit of the NDPS
Act, the prosecution would be duty bound to prove the charge beyond reasonable
doubt. In the case of Noor Aga (supra) the Hon'ble Supreme Court has observed
that the initial burden to prove the charge lies upon the prosecution and only
when it stand satisfied that the legal burden under section 54 of the Act shift.
With a view to bring within its purview the requirement of section 54 of the Act,
the element of possession of the contraband has to be established so as to shift
the burden on the accused. Similar view has been expressed in the case of
Gangadhar@GangaramVs. State of Madhya Pradesh reported in (2020) 9 SCC 202.
wherein it has been observed that the presumption against the accused of
culpability under sections 35 and 54 of the Act to explain possession satisfactorily
are rebuttable. It does not dispense with the obligation of the prosecution to
prove the charge beyond reasonable doubt."
31. In this case at hand, as the prosecution failed to prove beyond a
reasonable doubt that the accused was in possession of the ganja, presumption
of culpability under Sections 35 and 54 of the Act does not arise. The
prosecution has failed to prove conscious possession of the ganja by the
accused. Not a single witness has stated that the accused led to the recovery of
the ganja. The seizure witnesses and the independent witnesses, PWs-1, 2, 3, 4
and 7 have not proved the seizure lists, relating to seizure of the ganja as well
the Bolero vehicle. It has also been held in my foregoing discussions that the
Investigating Officer failed to trace out the owner of the vehicle. The accused
has denied that he was driving the vehicle seized in connection with this case.
He has also denied that he handed over the keys to the Police. The prosecution
Page No.# 20/21
has failed to prove that the accused was the owner of the vehicle seized in
connection with this case. The owner of the vehicle was neither summoned as a
witness nor made an accused in this case.
32. The entire investigation and the prosecution is bristled with discrepancies
as the seizure was not made as per proper procedure under Section 52 (A) (2)
of the NDPS Act, nor was any inventory prepared or certificate given relating to
the correctness of the inventory. The other lapse in the evidence is that the IO,
PW-8 has stated in his cross-examination that he did not see the sealed sample
in the Court, but he had identified the seized ganja as Material Exhibit-1. It is
not even not clear from the evidence of the IO, PW-8, whether the IO had
identified the sealed sample or the bulk of the ganja seized in connection with
this case. The IO has also admitted that no Malkhana register was maintained in
support of the safe custody of the seized article, before the article was
forwarded for chemical examination.
33. It is also submitted that the IO, PW-8 has not complied with the
provisions of Section 57 of the NDPS Act and no report of the particulars of
arrest or seizure has been forwarded to the immediate official superior.
34. In the wake of my foregoing discussions, it is thereby held that this case
is bristled with discrepancies. The evidence of the witnesses are contradictory.
Page No.# 21/21
The conviction under Section 20 (b) (ii) (C) of the NDPS Act is not sustainable.
The impugned Judgment and Order dated 04.10.2021, passed by the learned
Sessions Judge, Golaghat, convicting the accused under Section 20 (b) (ii) (C)
of the NDPS Act to undergo Rigorous Imprisonment for 10 years and to pay a
fine of Rs. 1,00,000/- (Rupees One Lac), is hereby set aside.
35. Appeal is allowed.
36. Send back the LCR with a copy of this Judgment and Order.
37. However, keeping in view the provisions of Section 437-A CrPC, the
accused, DebojitGogoi, is directed to furnish personal bond in the sum of Rs.
50,000 (Rupees Fifty Thousand) only and assure the bond in the like amount
before the learned trial court which shall be effective for a period of six months.
JUDGE
Comparing Assistant
