DIPANKAR AICH Vs. UNION OF INDIA

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 02.12.2014 and 03.12.2014 passed by the learned Judge, Special Court, NDPS Act, Raiganj, Uttar Dinajpur in Special (NDPS) Case No. 11 of 2011 convicting the appellant for commission of offence punishable under Sections 20(b)(ii)(c), 25/29 of the NDPS Act and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- in default, to suffer further rigorous imprisonment for six months more.

(2.) The prosecution case as alleged against the appellant is to the effect that Superintendent of Customs, Islampur Customs Preventive Unit Islampur, Uttar Dinajpur (P.W. 1), on 27.11.2011 received information regarding movement of ganja in a lorry bearing registration no. WB-25D 9147 on NH 31. Pursuant to such information he along with officers kept watch on NH 31 at Aliganj. Around 9 AM at 28.11.2011, P.W. 1 noticed a lorry coming from north to south. The lorry was intercepted. It was being driven by the appellant. The lorry was carrying tea bags. On query the appellant was admitted that ganja was kept inside the lorry. Accordingly, customs officers brought the lorry to their office. Customs officers searched the lorry in presence of independent witnesses and removed the tea bags. Thereafter they detected five gunny bags containing huge quantity of ganja. From the gunny bags 25 packets of ganja covered with polythene weighing about 252 kgs (net weigh) was recovered. Weightment list was prepared and the ganja was seized. Statements of the appellant and the Khalasi were recorded under Section 67 of the NDPS Act disclosing involvement of one Pradip Hira. On the written complaint of P.W. 1 the instant prosecution was launched against the appellant and his khalasi, Monirul Islam @ Sk. Tanik Md. @ Md. Tanik and the aforesaid Pradip Hira. Pradip absconded and Monirul, being a juvenile in conflict with law was sent for trial before the Juvenile Justice Board. Appellant alone faced trial in the present case. Charge was framed against him under Section 20 (b)(ii)(c) read with Section 25/29 of the NDPS Act. He pleaded not guilty and claimed to be tried. Four witnesses were examined and a number of documents were exhibited. Defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 02.12.2014 and 03.12.2014 convicted and sentenced the appellant, as aforesaid.

(3.) Mr. Deb, learned Counsel appearing for the appellant submitted that the prosecution case has not been proved beyond doubt as evidence of the leader of the search party, P.W. 1, is not consistent with regard to the date of alleged seizure. Independent witness to the seizure (P.W. 4) admitted that he signed on documents without looking into the contents thereof. Appellant was a driver and did not have conscious possession of the contraband. Hence, he ought to be acquitted.