Gauhati High Court
Bipin Kumar And Anr vs The State Of Assam on 28 April, 2026
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/16
GAHC010097472023
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./171/2023
BIPIN KUMAR AND ANR.
S/O DHARMENDRA KUMAR
RESIDENT OF VILLAGE AND PS BAKTIARPUR, DIST PATNA BIHAR
2: VIRA MAHATO
S/O LATE BASANTA MAHATO
VILLAGE GULAMAHIYA CHOK
PS MOJIPUR NADDI
DIST PATNA
BIHAR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
Advocate for the Petitioner : M PATHAK, S DAS,MR. P K DAS
Advocate for the Respondent : PP, ASSAM,
Linked Case : Crl.A./219/2023
SURAJ KUMAR ROY
S/O KISANDEV ROY
R/O KUMARDUBI
KALYARI
P.S.- CHIRKUNDI
Page No.# 2/16
DIST.- DHANBAD
JHARKHAND
PIN- 828202.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PUBLIC PROSECUTOR
ASSAM
2:SANJIB CHOUDHURY
S/O LATE SUNIL CHOUDHURY
VILL.- ABHAYAPURI
WARD NO. 3
P.S.- ABHAYAPURI
DIST.- BONGAIGAON
ASSAM.
------------
Advocate for : MR. S MITRA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Advocate for the appellant/s : Mr. M. Pathak, Adv.
Criminal Appeal No. 171/2023
Mr. S. Mitra, Adv.
Criminal Appeal No. 219/2023
Advocate for the respondents : Mr. R.R. Kaushik, APP, Assam.
:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE KAUSHIK GOSWAMIDate on which judgment is reserved : 23/04/2026
Page No.# 3/16Date of pronouncement of judgment : 28/04/2026
Whether the pronouncement is of the : No
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
JUDGEMENT AND ORDER (CAV)
(Michael Zothankhuma, J)
1. Heard Mr. S Mitra, learned counsel for the appellant in Criminal Appeal No.
219/2023 and Mr. M Pathak, learned counsel for the appellants in Criminal Appeal
No. 171/2023. Also heard Mr. R R Kaushik, learned Additional Public Prosecutor,
Assam for the State.
2. These two appeals have arisen out of the same impugned judgment and order
dated 09.03.2023 passed by the learned Special Judge, Bongaigaon in Special (Nar)
Case No. 23(BGN)/2022, convicting all the three appellants under Section 20 (b)(ii)
(C) of the ND&PS Act. The appellants have thereafter been sentenced to undergo
rigorous imprisonment for 15 (fifteen) years and to pay a fine of Rs. 1,00,000 (one
lakh) each, in default of payment of fine, further simple imprisonment for 6 (six)
months.
3. The prosecution’s case in brief is that the appellants were apprehended by the
police on 13.02.2022 at about 13:38 PM at New Bongaigaon Railway Station on
their arrival on the Deogarh Express Train. A search of the blue trolley bag carried
by Suraj Kumar Roy and the plastic sack held by the other 2 appellants, showed
that they had carried a total of 21.1 Kgs of Ganja. The blue trolley bag of Suraj Kr.
Roy contained 10.21 Kgs. of Ganja, while the plastic sack belonging to the other
two appellants, i.e., Bipin Kumar and Vira Mahato contained 10.8 Kgs. of Ganja.
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4. The counsels for the appellants submit that the prosecution had failed to
establish that the appellants were in conscious possession of the seized
contraband. They submit that the search and seizure of the contraband has not
proved that the appellants were in possession of the Ganja, as per the
evidence given by the prosecution witnesses. Further, the prosecution has failed to
prove that the contraband was in the secured custody of the police, in terms of the
requirements of Section 55 NDPS Act, i.e. there was nothing to show that the
contraband was kept in the proper custody of the Police, between the time of the
seizure and production of the same before the Magistrate in question.
5. The learned counsels for the appellants also submit that there has been non-
compliance of Section 41 of the NDPS Act, inasmuch as, there is nothing to show as
to whether the PW-4 could have searched for the contraband. Further, PW-6 stated
in his evidence that he had not made a physical seizure of the contraband. They
also submit that the prosecution has failed to prove the foundational facts so as to
attract the rigours of section 35 of the NDPS Act, which raises the presumption of
culpable mental state on the part of the accused.
6. The learned counsels for the appellants also submit that the appellant Suraj
Kumar Roy had bought a ticket for Coach No. B-1, while the train tickets for the
other two appellants were in relation to Coach No. S-2. The above thus showed that
the appellants were not working together. Further, the explanation given by all the 3
(three) appellants under section 313 Cr.P.C., showed that the appellant Suraj Kumar
Roy did not know the other two appellants and vice-versa.
7. The counsels for the appellants submit that while 6 (six) Police personnel had
taken part in the search and arrest of the appellants, all the Police personnel were
not made prosecution witnesses and as such, not examined. They submit that the
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above was only to ensure that the illegal arrest and seizure by the Police would not
come out in the open during trial, as the same deprived the appellants from cross-
examining all the policemen, who were a part of the team who detained them. They
submit that as mandatory provisions of law have not been followed while making
the search, seizure and arrest of the appellants, the impugned judgement should be
set aside and the appellants should be acquitted of the charge under section 20b(ii)
(C) of the NDPS Act.
In support of their submissions, they have relied upon the following
judgements of the Supreme Court in :-
(i) Thounaojam Punima Singh Vs. Union of India & Anr., reported in 2021 (1) GLT 790. (ii) Sri Biswanath Pratap & Anr. Vs. The State of Assam & Anr. (Crl. A. 51/2020). (iii) State of Gujarat Vs. Ismail U Haji Patel & Anr. reported in (2003) 12 SCC 291. (iv) Mohanlal Vs. State of Punjab. reported in (2018) 17 SCC 627. (v) Manirut Zaman @ Moni Vs. The State of Assam (Crl.A. 392/2023). (vi) Noor Aga Vs. State of Punjab reported in (2008) 17 SCC 407. (vii) Gurbachan Singh Vs. State of Punjab (Crl. Appeal S. No. 1033/2007.
(viii) Moinul Hoque son of Jalil Uddin Vs. The State of Assam
reported in 2023 0 Supreme (Gau) 566.
8. The learned APP, on the other hand, submits that there is no infirmity with
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the judgement of the learned Trial Court and as such, the same should not be
interfered with.
9. In the case of Thounaojam Punima Singh (supra), this Court held that
the presence of independent witness at the time of search and seizure of
contraband is not an indispensable requirement, nor does the absence of
independent witnesses vitiate the trial. The search and seizing officer should make
an endeavour to call upon independent and respectable witnesses to witness the
search and seizure. If the officer does not make such an endeavour, the probative
value or the credibility of the search and seizure shall be effected, if statutory
provisions are not complied with.
10. In the case of Sri Biswanath Pratap (supra), this Court held that before a
presumption under Section 35 NDPS could be raised, the prosecution was obliged to
establish that the accused was in exclusive and conscious possession of the
contraband in order to sustain conviction for illegal possession of contraband.
11. In the case of Ismail U Haji Patel (supra) , the Supreme Court held that
what is to be established by the prosecution is that the seized articles were kept in
proper custody, in proper form and the sample sent to the Chemical Analyst was
relatable to the seized articles.
12. In the case of Mohanlal (supra), the Supreme Court held that Section 55 of
the NDPS Act made it a duty of the police officer to deposit the seized materials in
the Police Station Malkhana.
13. In the case of Noor Aga (supra), the Supreme Court held that if the
prosecution failed to prove the foundational facts, so as to attract the rigours of
Section 35 of the Act, the actus reus which is possession of contraband by the
accused, cannot be said to have been established.
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14. In the case of Moinul Haque (supra), this Court held that though Section
54 of the NDPS Act places the burden on the prosecution to first prove the
foundational facts regarding possession of contraband by the accused, which would
then require the accused to prove that he was not in possession of the same.
15. In the case of Gurbachan Singh (supra), the Supreme Court held that the
provisions of Section 55 of the NDPS Act are not mandatory, but are directory in
nature. The above finding had been made in terms of the Supreme Court
judgement in the case of Babubhai Odhavji Patel and Others v. State of
Gujarat, reported in (2005) 8 SCC 725, wherein the Hon’ble Supreme Court
observed in Paragraph-8 as follows:
“8. The learned counsel further contended that the seized articles were not kept in
proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He
placed reliance on Valsala v. State of Kerala 1993 Spp (3) SCC 665. We do not think that
there is much force in this contention. This Court in Gurbax Singh v. State of Haryana
(2001) 3 SCC 28 held that these provisions are not mandatory provisions and they are only
directory.”
16. We have heard the learned counsels for the parties.
17. As can be seen from the evidence on of PW6, who was the in-charge O.C. of
Bongaigaon GRPS. He received an FIR on 13/01/2022 at 2.15 p.m. from the ASI of
Police, which was to the effect that the ASI had received information at 10 a.m. on
13/02/2022 from a reliable source that some Ganja peddler was bringing a lot of
Ganja in coach number B-01 of Deoghar Weekly Express Train, which was coming
from Agartala railway station towards New Bongaigaon Railway Station. Accordingly,
on the basis of written authorization issued to the ASI, by an authorized officer
under section 41(2) NDPS Act, he carried out a search in coach No. B-01 of the said
train. During the search, the three appellants, one of whom was carrying the blue
coloured trolley bag and the other two with plastic sacks were noticed avoiding the
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police team and trying to escape from the searched coach. However, they were
intercepted and from one blue coloured trolley bag and one purple coloured plastic
sack, Ganja was recovered. Thus, 2 seizure lists were made. Pursuant of the FIR
dated 13/02/2022, Bongaigaon GRPS case number 07/2022, under section 20 (b)(ii)
(C) NDPS Act was registered.
18. After investigation of the case, the I.O. had submitted a charge sheet, having
found a prima facie case under section 20(b)(ii)(C) established against the
appellants. The charge under section 20(b)(ii)(C) NDPS Act was framed against the
appellants, to which they pleaded not guilty and claimed to be tried. The learned
Trial Court then examined 7 prosecution witnesses. After examining the appellants
under Section 313 Cr.P.C, the learned Trial Court convicted them for possession of
commercial quantity of Ganja, which had been seized by way of 2 seizure
memos/lists.
19. The evidence of PW-1 and PW-2 is that they were tea vendors in the New
Bongaigaon Railway Station and that on 13/02/2022 at around 1 to 1.40 pm, the
Deoghar Express train arrived at the New Bongaigaon platform. GRPF personnel
boarded the train and conducted search operation, wherein they apprehended three
persons with a trolley bag and a sack containing suspected Ganja. They were also
made the seizure witnesses. In their cross-examination, PW-1 and PW-2 stated that
they could not say from where the GRPF personnel recovered the trolley bag and
the sack containing the Ganja. They also did not know the names of the GRPF
personnel who had boarded the train or prepared the seizure list. Further, the
stoppage time of Deoghar Express in the New Bongaigaon station was two minutes.
20. The evidence of PW-3, who is a tea stall owner at platform No. 1, New
Bongaigaon station, is similar to the evidence of PW-1 and PW-2. He also stated
that he was made a seizure witness to the seizure of the trolley bag and the plastic
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sack containing suspected Ganja. PW-3 also stated that he did not know from
where and from whom the GRPF personnel had recovered the suspected Ganja. He
also stated that he had seen the GRPF personnel measuring the suspected Ganja.
21. The evidence of PW-4, who is the in-charge of the GRPF at New Bongaigaon
Railway Station, is to the effect that they had received secret information at around
10 a.m. on 13/02/2022 that Ganja was being carried in Deoghar Weekly Express in
coach number B-1. After receiving the information, the same was entered by GD
vide entry number 171 dated 13/02/2022. The matter was informed to the O.C. of
the Bongaigaon GRPS and IRP Fakiragram Camp. He was also authorized to conduct
search, which was sent to him through messenger. On arrival of the Deoghar
Weekly Express at New Bongaigaon station at 13.38 hours, PW-4 along with his
staff boarded the train and conducted a search in coach B-1. During the search, he
found two persons holding a purple coloured plastic sack, while one appellant, Suraj
Kumar Roy, was holding a blue coloured trolley bag. They were all going towards
another coach to avoid being searched. During the search, they found suspected
Ganja in the purple coloured plastic sack and the blue coloured trolley bag.
Accordingly, all the three persons were taken out from the train and the matter
informed to PW-6, who was the O.C. Bongaigaon GRPS. Thereafter, the three
appellants with the recovered articles were taken in front of GRPS office. PW-6 then
arrived and measured the articles in presence of the witnesses. The same was also
seized in the presence of witnesses. The total weight of the suspected Ganja in the
purple colour sack was 10.8 kg while the weight of the suspected Ganja in the blue
colour trolley bag was 10.21 kg.
22. In his cross-examination, PW-4 stated that he did not seize any train tickets
from the appellants. He also stated that the appellants all belonged to different
States and were not related. PW-4 further stated that one copy of the train ticket in
the name of the appellant Suraj Kumar Roy was seen in coach number B-1, seat
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number 19, upper berth. Another copy of a train ticket seemed to be in the name of
the appellants Bipin Kumar and Vira Mahato, coach number S-2, seat number 8 and
6.
23. The evidence of PW-5, who is a retired Joint Director of the Forensic Science
Laboratory (FSL), Assam, is to the effect that they had received a parcel consisting
of two exhibits and on examining the exhibits, the same gave positive tests for
Ganja.
24. The evidence of PW-6, who is the in-charge O.C. of Bongaigaon GRPS, is to
the effect that on 13/02/2022 at 2-25 p.m. he received an FIR submitted by PW-4
and took up the case for investigation. The FIR was with regard to the Ganja being
brought in the Deoghar Weekly Express train. On recording the statement of the
complainant at Bongaigaon GRPS, he went to the New Bongaigaon GRPS
Investigation Centre. The suspected Ganja was measured and found to be 21 kgs.
He recorded the statement of the witnesses and visited the place of occurrence at
the New Bongaigaon Railway Station Platform No.1. He prepared seizure lists and
on questioning the appellants, he was told that they had purchased 21 kgs of Ganja
worth Rs. 31,500/- from two unknown persons. He had also made an inventory of
the seized articles and sent the samples for examination to the FSL.
25. The evidence of PW-7 is to the effect that he had submitted the charge sheet
against the appellants on 31/03/2022 for the offence under Section 20(b)(ii)(C)/ 29
NDPS Act.
26. The examination of the appellants under section 313 Cr.P.C. shows that they
had all denied having any involvement with the seized Ganja. However, it is
interesting to note that the appellant Suraj Kumar Roy has denied knowing the
appellants Bipin Kumar and Vira Mahato. Similarly, the appellant Bipin Kumar and
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Vira Mahato have denied knowing Suraj Kumar Roy.
27. The evidence of the prosecution witnesses show that none of the seizure
witnesses, i.e, PWs-1, 2 & 3, had seen the place from where the GRP personnel had
recovered the trolley bag and the sack containing the Ganja. They were present at
the time of seizure which was made by the PW-6 in the railway station platform.
The evidence of PWs-1, 2 & 3 shows that the Ganja had been recovered from the
trolley bag and the sack recovered from the appellants. Though the evidence of
PW-3 in his cross-examination is to the effect that he did not know from where and
from whom the suspected Ganja had been recovered, we are of the view that the
evidence of PWs-1, 2 & 3 in their examination-in-chief proved that the Ganja had
been recovered from the trolley bag, which was held by Suraj Kumar Roy and the
purple coloured plastic sack of the other appellants.
28. The evidence of PW-4, who is the only one amongst the Prosecution
Witnesses, who boarded the train and detained the appellants and their luggage, is
to the effect that Suraj Kumar Roy was holding the blue coloured trolley bag and
the other two appellants were holding the purple coloured plastic sack. Ganja
recovered from the trolley bag was 10.21 kgs, while the Ganja recovered from the
purple coloured plastic sack was 10.8 kgs. There is nothing to show in the evidence
of the prosecution witnesses that the appellants were working together and that the
Ganja recovered from the purple coloured plastic sack was also jointly owned by
Suraj Kumar Roy. Similarly, there is nothing to show that the other two appellants
namely Bipin Kumar and Vira Mahato had acted together with Suraj Kumar Roy in
respect of the Ganja that had been recovered from the blue coloured trolley bag.
29. It is no doubt true that in terms of Section 100(4) Cr.P.C. and in respect of a
search to be conducted in a closed space, the Officer or any other enforcement
agency person who is about to make the search, shall call upon two or more
independent and respectable inhabitants of the locality in which place the search is
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to be conducted, or of any other locality, if no such inhabitant of the said locality is
available or is willing to be a witness to the search. In the present case, when there
is no bar for people to be on a train prior to its movement, we do not find a
stationary train to be a closed space. Further, the train that had stopped in the New
Bongaigaon Railway Station had a stoppage time of only two minutes. As such, we
do not find any infirmity in the appellants and their luggage being brought down,
for search and seizure, to be made on the railway station platform. We would also
like to refer to the judgment of the Hon’ble Supreme Court in the case of Jothi @
Nagajothi Vs. The State, represented by the Inspector of Police, Criminal
Appeal No.259/2025, which was disposed of on 11/12/2025. The Hon’ble
Supreme Court, in the above case, held that mere absence of independent
witnesses does not lead to the conclusion that an accused has been falsely
implicated. It is also held that mere non-compliance/delayed compliance or
deviation/irregularity from following the ideal procedure under Section 52-A Cr.P.C.,
does not go to the root of the matter and it is not fatal, unless the irregularity
creates discrepancies affecting the integrity of the seized substance or the identity
of the sample analyzed. In this case, due to the short waiting time of the train in
the platform, which was for around 2 minutes, we do not find any infirmity in the
seizure witnesses being made a party to the search and seizure only in the railway
station platform and not inside the train.
30. Though the appellants’ counsels had tried to make out a case that the
prosecution had not kept the seized articles in proper custody after seizure of the
same, we do not agree to the said submission, in view of the evidence of PW-6,
who stated that he had prepared two seizure lists and the inventory of the seized
articles in his capacity as O.C. The application for certification of the correctness of
the inventory, photographs and samples of the seized cannabis were also exhibited
as Ext. P-8, P-9, P-10 and P-11.
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31. We also do not attach much importance to the evidence of PW-6 in his cross-
examination where he stated that he did not physically seize suspected Ganja from
the accused persons, as the informant who is PW-4, had stated that the suspected
Ganja was recovered from the possession of the appellants. PW-4 had caught hold
of the appellants in the train and brought them down to the platform where search
was conducted and the Ganja had been found. PW-6 was then informed of the
same by PW-4. PW-6 had then came to the railway station and seized the Ganja in
the platform of the railway station.
32. The next question is with regard to whether there was non-compliance of
Section 41 of the NDPS Act. In this regard, the learned Addl. P.P. has produced a
copy of the Government Notification No.EX.145/85/290 dated 25.04.1995 and
Government Notification No.EX.145/85/301 which states as follows :
“Copy of the Government Notification No.EX.145/85/290 dated 25.04.1995.
In exercise of the powers conferred by Sub-Section (1) of Section 42 read with Section 67
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Governor of
Assam is pleased to empower all Excise Officer of the above rank of Assistant Inspector of
Excise Police Officer of and above the rank of Sub-Inspector of Police and Drugs Control
officers of and above the rank of Inspector of Drugs to exercise the power and perform the
duties specified in Section-42 within the areas of their respective Jurisdiction and also
authorise and the said officers to exercise the powers conferred upon them under section
67 of the Act with effect from the date of publication of the notification in the Official
Gazette.
This modified this Department notification No. Ex 145/85/258 dt. 6-2-89.
Copy of Govt. Notification No. EX.145/85/301 Dated Dispur, the 15 May/1995
In exercise of the powers conferred by Sub-Section(2) of Section 41 of the Narcotic Drugs
and Psychotropic Substances Act, 1985(61 of 1985), the Governor of Assam is pleased to
empower all Excise officer of the above the rank of a Inspector of Excise, Police Officer of
and above the rank of Inspector of Police and Drugs Control officers of and above the rank
of Inspector of Drugs to exercise the powers specified in Sub-Section (2) of the said section
within the areas of their respective Jurisdiction with effect from the date of publication of
Page No.# 14/16the notification in the Official Gezette.”
33. A perusal of the above 2 Notifications shows that a Sub-Inspector of Police
has the power to exercise and perform the duties specified under Section 42 of the
NDPS Act, while an Inspector of Police has the power to exercise powers in terms of
Section 41(2) of the NDPS Act. In the present case, one Inspector Sanjay Kumar
Laskar has, under Section 41(2) of the NDPS Act, authorized PW-4 to search any
vehicle and premise, vide Authorisation Letter dated 13.02.2022. This letter has
been exhibited as Ext.P4/PW-4. The above shows that PW-4 had the authority to
conduct a search of the train. In any event, when the said train had stoppage time
of 2 minutes in New Bongaigaon Railway Station, and people are allowed to get off
and get on the train during the said period, it cannot be said that the train was a
closed space at that point of time. As such, it cannot be said that PW-4 did not have
the authority/competence to search the said train.
34. When there is evidence to the effect that appellant Suraj Kumar Roy had
been holding the blue coloured trolley bag and the other two appellants were
holding the purple coloured plastic sack, from where Ganja had been recovered, it is
proved that the appellants were in conscious possession of the drugs which had
been seized from their respective trolley bag/sack. Thus, we are of the view that
the prosecution was able to establish the foundational facts that the appellants
were in conscious possession of Ganja, for which the burden of proof shifted to the
appellants, to prove their innocence.
35. With regard to whether the Officer-in-Charge of the Police Station took
charge of the Ganja for keeping/safe custody, it should also be noted that there is
nothing to show that the provisions of Section 55 has not been followed, inasmuch,
PW-6 himself is the Officer-in-Charge. Further, the Hon’ble Supreme Court in the
case of Gurbax Singh Vs. State Of Haryana, reported in (2001) 3 SCC 28 has
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held that Sections 52, 55 & 57 of the NDPS Act are not mandatory provisions, but
only directory.
36. In the present case, when it is proved that the appellants were in possession
of their respective bag/sack, it was the duty of the appellants to discharge the
burden cast upon them to prove their innocence. We are of the view that the
appellants have not been able to discharge the duty cast upon them to prove their
innocence under Section 35 of the NDPS Act.
37. The above being said, we do not find any documents or evidence to show that
the appellants were acting together or had joint ownership of the seized articles.
While the blue coloured trolley bag of the appellant Suraj Kumar Roy contained 10.21
kgs. of Ganja, the purple coloured plastic sack which was being carried by the other
two appellants contained Ganja weighing 10.8 kgs. The evidence of the only police
personnel who has been made a Prosecution witness in this case, i.e. PW-4, in his
cross-examination is to the effect that the train ticket in the name of the appellant
Suraj Kumar was in respect of coach number B-1, seat number 19, upper berth.
Further, the copy of the other train ticket seemed to be in the name of the appellants
Bipin Kumar and Vira Mahato, coah number S-2, seat no. 8 and 6. This evidence of
PW-4 gives rise to an inference that the appellant Suraj Kumar Roy did not have any
connection with the other two appellants. This has also been explained by the three
appellants in their examination under Section 313 Cr.P.C, wherein Suraj Kumar Roy has
denied knowing the other two appellants and vice-versa. Keeping the above in view, it
cannot be said with certainty that the three appellants were jointly transporting the
two seizures of Ganja made vide two seizure lists, only on the basis of the evidence of
PW-4. As such, we are of the view that the evidence of PW-4 does not prove the guilt
of the appellants beyond all reasonable doubt that they had jointly possessed or
transported the seized 21.1 kgs of Ganja. However, the Prosecution has been able to
prove that the appellant Suraj Kumar Roy had in his conscious possession transported
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10.21 kgs of Ganja, while the other two appellants have in their conscious possession
transported 10.8 kgs of Ganja. In view of the above, we are of the view that even
though the prosecution has been able to prove that the appellants were in conscious
possession of the drugs that were recovered from the trolley bag/sack, they have not
been able to prove that they were in joint possession of the total seized Ganja made
by way of the two seizure memos. If the seized articles are to be considered
separately as per the two seizure lists, the seized articles cannot be said to be of
commercial quantity. Accordingly, in view of the reasons stated above, we hold that
the appellant Suraj Kumar Roy is guilty of possession of 10.21 kgs. of Ganja, which
had been recovered from the blue coloured trolley bag. The appellants Bipin Kumar
and Vira Mahato are found guilty of possession of 10.8 kgs. of Ganja only, which had
been recovered from the purple coloured plastic sack. Thus, they are accordingly
convicted only under Section 20(b)(ii)(B) of the NDPS Act, 1985. The appellants are
accordingly sentenced to undergo rigorous imprisonment for 3½ years each and to
pay fine of Rs.1 lakh each, in default of payment of fine, to undergo simple
imprisonment for 6 months. Thus, the charge framed under Section 20(b)(ii)(C) of the
NDPS Act, 1985 is hereby altered to Section 20(b)(ii)(B) of the NDPS Act, 1985.
38. For all the above reasons, the impugned Judgment dated 09.03.2023, passed
by the learned Special Judge, Bongaigaon in Special (Nar) Case No. 23(BGN)/2022
and the sentence imposed upon the appellants, are hereby modified to the extent
indicated above.
39. The appeals are accordingly disposed of.
40. Send back the TCR.
JUDGE JUDGE
Comparing Assistant
Sukhamay Digitally signed by
Sukhamay Dey
Dey Date: 2026.04.28 14:18:58
+05'30'
