SWAPAN DEWANJI Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) BOTH the appeals are directed against the judgment of conviction dated 01.10.2013 of the learned Special Judge, Dibrugarh passed in NDPS Case No. 05/2011 arising out of GR Case No. 515/2011. By the said judgment, both the accused/appellants have been convicted u/s. 20(c) of the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985. Consequently, they have been sentenced to undergo rigorous imprisonment for 10(ten) years and also to pay fine of Rs. 1,00,000/ - (rupees one lakh) each, and in default, further rigorous imprisonment for 06(six) months. It is submitted that they are in custody since 11.03.2011 and thus, by now, they have undergone sentence for about 04(four) years. Both the appeals having arisen out of the same judgment, they have been heard analogously and are being disposed of by this common judgment.

(2.) WHILE Ms. L. Sharma, learned counsel represents the appellant in Criminal Appeal (J) No. 122/2013, Ms. B. Sarma, learned counsel represents the appellant in Criminal Appeal (J) No. 123/2013. Both of them were appointed to assist the Court as Amicus Curie.

(3.) ON 11.03.2011, one Sri Dipjyoti Dadhara (PW -6) ASI of police, Dibrugarh police station, lodged an Ejahar with the Dibrugarh police station stating inter -alia that on 10.03.2011 at 12.30 a.m. on the basis of secret information, accused/appellants along with one Amar Sur were apprehended from a Maruti Esteem Car bearing registration No. AS -23 -B -2291, which was parked at Jalukpara Road in front of Kusum Hotel and after thorough search, in presence of witnesses, he recovered suspected Ganja, which were later on weight in presence of witnesses, which were found to be 20 KGs. On the basis of the FIR lodged, Dibrugarh P.S. case No. 191/2011 was registered u/s. 20 NDPS Act. It will be pertinent to mention here that although in the impugned judgment of conviction, the prosecution case has been referred to as above, but on perusal of the FIR (Ext -4), it is found that there is no reference to the alleged incident of 10.03.2011 at 12.30 a.m.. What the FIR states is that on 11.03.2011 at night at about 12.30 a.m. on receipt of a secret information, search was made in the aforesaid Maruti Esteem Car and the accused/appellants along with one Sri Amar Sur were arrested. The FIR further states that suspicious Ganja were recovered weighing 20 Kg. In due course, investigation was carried out and completed and formal charge u/s. 20(C) of the NDPS Act was framed and explained to the accused/appellants, to which they pleaded not guilty and claimed to be tried. It will be pertinent to mention here that Amar Sur, the other accused turned absconder during the trial and his case was split up and the proceeding continued against the accused/appellants.