Crl.A. 126/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. P.C. Dey, learned counsel appearing for the appellant. Also heard Mr. B.S.Sinha, learned Public Prosecutor who represents the State. 2. This appeal is presented to challenge the judgment and order dat ed 15.3.2003 in Sessions Case No. 104(S-C)/2001 rendered by the learned Sessions Judge, Sivasagar, whereby the appellant has been convicted under Section 20(b)( i) of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter ref erred to as the NDPS Act ) and has been sentenced to undergo rigorous imprisonm ent for 1 year and to pay a fine of Rs.5000/- and in default of fine, to undergo further R.I. for 2 months. 3. The prosecution version is that on 05.01.2001 at 10:30 a.m. duri ng a routine checking of vehicles near the Towkak Army Camp within the jurisdict ion of Sonari Police Station, a bag contained 1600 grams of Ganja was seized fro m the accused, who was traveling in the cabin of the Truck No. NLM-7947. The sai d seized material and the accused was thereafter handed over to the Sonari Polic e Station at about 7:30 p.m. along with written information by the Army Official and a G.D. Entry No. 142 dated 5.1.2001 was recorded on the incident. 4. The investigation of the case was taken up by the Circle Inspect or and the seized contraband was sent for forensic examination. When the forensi c laboratory confirmed the sample to be ganja (Cannabis), the accused was charge d under Section 20(b)(i) of the NDPS Act. As the case was exclusively triable by the Court of Sessions, the case was committed and when the accused, pleaded not guilty to the charge, the case was put up for trial. 5. During the trial, 4 witnesses were examined on behalf of the pro secution. 5.1 P.W.1 Nakul Singh was the truck driver who stated that he was ca rrying stone chips from Tezit (Nagaland) to Bhaju Railway Station on 5.1.2010 wh en he offered lift to 2/3 persons. All the passengers were traveling in the truc k’s cabin when it was stopped by the army personnel near the Tawkak Army Camp. A fter a search one plastic bag kept under the foot of a passenger was seized and he testified that the appellant was the passenger who claimed the seized plastic bag. In his cross-examination, the driver stated that although the police stati on was at a distance of about 5/6 k.m. from the Check gate, they were taken to t he police station after about 4 hours. 5.2 P.W.2 Sunil Garh was the handyman in the truck driven by P.W.1, Nakul Singh. He stated that 4/5 persons boarded the truck at Namcha Forest Check Gate and they were seated inside the truck’s cabin. The handyman stated that on ly at the police station he was told that the accused was carrying ganja. In his cross-examination the witness stated that he did not mind the accused taking t he bag inside the cabin of their truck while he was boarding the truck . 5.3 P.W.3 is Md. Liakat Ali who was a Subedar Major in the Army Camp . He was assigned the duty to escort the Army Officer to the police station. In his cross-examination he denied any knowledge as to wherefrom the ganja was reco vered and seized. 5.4 P.W.4 is Lukeswar Phukon who was the Circle Inspector present at the Sonari Police Station. He stated that at about 7:10 p.m. on 5.1.2010 one Ar my Captain accompanied by P.W.3 Liakat Ali came to the police station and hande d over the accused along with 1600 grams of Ganja with a written complaint where it was stated that the accused was apprehended during a routine check of the ve hicles traveling in front of the Army Camp at Sonari. P.W.4 arranged for forensi c examination of the seized sample and ganja was confirmed by the Forensic Labor atory, the accused was charged under the NDPS Act. In his cross-examination, P.W .4 testified that although the accused was apprehended by the Army personnel at about 10:30 a.m. he was produced at the police station only at 7:30 p.m. The I.O . failed to give the name of the informant as the signature in the FIR was found to be not legible. 6. During the 313 Cr.P.C. examination the accused admitted that he was traveling in the truck on 5.1.2010 but claimed that he wasn’t carrying any b ag and hence there was no question of him carrying any contraband item and the s eized ganja wasn’t recovered from him. 7. In this case the informant who is an Army Officer and who made t he seizure of the contraband goods was not produced as an witness. Even his name is not discernable from the written information given filed by the Army officer as the scrawled initial is not legible. Furthermore the evidence of the Army Su bedar Liakat Ali (P.W.3) shows that he had no knowledge from where the ganja was seized. P.W.2 the handyman of the Truck appears to have learnt of the ganja bei ng seized from the accused, only at the police station. In such circumstances, t he recovery of the seized ganja from the possession of accused becomes doubtful. The prosecution ought to have produced the Army Officer who furnished the infor mation to the police on the seizure and the arrest, to establish that the seized contraband was actually recovered from the possession of the accused. This was all the more necessary as it was apparent that several persons were traveling in the truck’s cabin. Those passengers were also not produced to confirm that the seized ganja was recovered from the possession of the accused. 8. That apart, it is also seen that the Army Officer who made the s eizure and the arrest had not complied with the procedure prescribed under Sub-S ection (2) of Section 42 of the NDPS Act. Nor he had recorded any reasons or se nt any report on the search and seizure, to his superior officer as is mandated under Section 50(6) of the NDPS Act. 9. No explanation is also forthcoming from the prosecution as to wh y the Sonari Police Station which is located at a short distance of 5/6 k.m. fro m the Army Camp, was informed of the seizure and the arrest after 7 in the eveni ng, when the seizure and arrest were made at 10:30 a.m. on 5.1.2010. 10. Having considered the above deficiencies, I am of the considered view that the prosecution in the instant case has failed to establish that the contraband goods was recovered from the possession of the accused as the relevan t witness i.e. the Army Officer who made seizure and the arrest was not produced as an witness. Even his name wasn’t discernable from the report filed by him. T he Mandatory provisions of Sections 42 & 50 of the NDPS Act also appear to have been violated by the concerned officer.. 11. In such circumstances, this Court is left without no choice but to hold that the charge against the accused has not been proved beyond all reaso nable doubt and accordingly the Court is of the view that the impugned convictio n cannot be sustained. The judgment and order dated 15.3.2003 in Sessions Case N o. 104(S-C)/2001 is accordingly quashed. 12. The LCRs be returned forthwith.