SANKAR ACHARYYA, J. - (1.) This appeal has been filed by accused -appellant challenging the judgment and orders of conviction dated 03.04.2008 and sentence dated 04.04.2008 passed by learned Additional Sessions Judge cum Judge, Special Court under the Narcotic Drugs and Psychotropic Substance Act (in short N.D.P.S. Act) 1985, Cooch Behar in G.R. Case No. 345/05 under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985. In the impugned judgment the accused was found guilty of the charge under Section 20 (b) (ii) (c) of the N.D.P.S. Act, 1985 and sentenced to suffer rigorous imprisonment for 12 years and to pay fine of Rs.1,50,000/ - and in default of payment of fine to suffer simple imprisonment for two years more. Order has been passed for confiscation of the seized property to the State.
(2.) Inter alia, the appellant has contended in the petition of appeal that the appellant has been seriously prejudiced by the impugned judgment and the impugned judgment is liable to be set aside. It has been contended that the provisions of Sections 42, 43, 50 and 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with causing miscarriage of justice. The appellant has claimed that the prosecution failed to prove conscious possession of the alleged Ganja against the accused - appellant. The appellant has alleged that the impugned judgment is bad in law and liable to be set aside. The appellant remains in judicial custody since passing of the impugned judgment.
(3.) In the trial Court the prosecution case was that on the basis of a source information on 28.11.2005 S.I. Joydeb Ghosh as Officer - in -Charge of Boxirhat P.S., Cooch Behar alongwith police force rushed to Taraganj Bridge to work out the information relating to trafficking of contraband article in a truck. They signalled one truck bearing No. NL/04D/3847 to stop but the truck driver tried to go away violating the signal. The police personnels chased and apprehended the truck and its driver. On interrogation the truck driver made different statements regarding contents of loaded truck. Primarily the truck was found loaded with jute but smell like Ganja was coming out from the truck. A serious suspicion arose in the mind of the police personnels due to such smell and behaviour of the driver. They detained the truck and the driver Gurvinder Singh (appellant herein) and took the truck and the driver to a field of Swamiji Sangha Club in the vicinity of the P.S. Boxirhat. Police informed the S.D.O., Tufanganj to depute one Executive Magistrate and also informed the fact to superior police officer that is Circle Inspector (Sadar), Cooch Behar. Subsequently, Executive Magistrate Sajal Kanti Das and the Circle Inspector reached there and in their presence search of the intercepted truck was done by police of Boxirhat P.S. On search it was detected that there is an extra chamber behind the driver's cabin wherefrom smell of Ganja was coming out. Said cabin was kept concealed under jute bales. Under direction of the Executive Magistrate the upper cover of that extra chamber was broken and police recovered 58 packets of Ganja which were subsequently weighed and found it as 540.700 kgs. Said Ganja, truck, the wooden cover of extra chamber made of wood and tin and jute bales were seized by police in presence of Executive Magistrate and Circle Inspector and three local witnesses. Sample was collected in three packets from the seized Ganja and the said packets were sealed and labelled. The appellant Gurvinder Singh was arrested by police. Said S.I. Joydeb Ghosh lodged FIR at Boxirhat P.S. on 28.11.2005 and the case was investigated by police officers Debabrata Jha (PW 18) and then Dhananjay Roy (PW 19).;