GANESH CHETRY Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is against the judgment and order dated 21.6.07 rendered by the learned Special Judge, Darrang, Mangaldoi in Special (N) Case No. 10/04 whereby the appellants were convicted under Section 20(b) (ii) (C) of the NDPS Act and sentenced to undergo R. I. for 10 years with fine of Rs. I lac (Rupees one lakh) each, in default, R. I. for 2 years each. The appellants are presently serving sentence and they have preferred this appeal from jail through jail authority. Briefly stated, the facts of the case are as follows:

(2.) I have heard Ms. Aparna Ajitsaria, learned Amicus Curiae for the convict appellants and Mr. Z. Kamar, learned P. P. , Assam, for the respondent State. The learned Amicus Curiae, appearing for the appellants, submits that the procedures for seizure of ganja and keeping them in safe custody till production before the Magistrate, drawing of sample from the seized contraband and sending the sample to the FSL as provided under the provision of NDPS Act have not been complied with and there is complete violation of the procedures provided under Sections 53 and 55 of the NDPS Act. Noncompliance of the procedures under the NDPS Act vitiated the entire proceeding and as such the conviction and sentence as awarded by the learned trial court is unsustainable under the law. The learned Amicus Curiae, in order to substantiate her submission, largely relies on the decision of this Court rendered in Bhim Ram & Ors. Vs. State of Assam, 2012 1 GauLT 416. According to her, the decision in the aforesaid case squarely covers the present appellants' case and they are entitled to acquittal. Mr. Kamar, learned P. P. countered the above submission by arguing that the contraband ganja was recovered from the possession of the convicts and the said contraband ganja having been tested positive in the FSL test, the prosecution has been able to prove the charge beyond reasonable doubt and as such the challenge to the impugned conviction and sentence is unwarranted and unsustainable in law. The appeal, according to him, deserves dismissal.

(3.) I have given serious thought and anxious consideration on the submissions made by the learned counsel for the parties. I have scanned the records as made available at the time of hearing. I have also gone through the evidence on record for appreciation.