JUDGMENT
H. Barua, J.
1. Appellants, Shri Manik Debnath and Shri Lohit Debnath were tired by the learned Special Judge (Sessions Judge), Morigaon under Section 20(ii)(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, in short, the NDPS Act and sentenced both the appellants having found guilty under the charge vide judgment and order dated 16.9.2005 passed in Special Case No. 01/ 2003.
2. Appellant, Shri Manik Debnath was sentenced to undergo R.I. for 15 (fifteen) years with a fine of Rs. 2,00,000/- in default of payment of fine to suffer R.I. for another 6 (six) years, while appellant Shri Lohit Debnath was sentenced to undergo R.I. for 10 (ten) years with a fine of Rs. 1,00,000/- in default of payment of fine to undergo further R.I. for 3 (three) years.
3. Feeling aggrieved by and dissatisfied with the judgment and order of conviction impugned, this appeal has been filed by both the appellants from jail challenging its legality and correctness.
4. Appellant Manik Debnath had a cloth shop in Dry Fish Market at Jagiroad and had been doing Ms business in cloth alongwith appellant Lohit Debnath. Based on a secret in-formation about carrying of some contraband drugs by some drug traffickers unto the Jagiroad Dry Fish Market, Jagiroad Police made a GD Entry No. 283 dated 12.9.2002 at 9.45 p.m. Shri Troilokya Mahanta (PW-5) was entrusted to make an enquiry. Sub-Inspector of Police, Sri T. Mahanta (PW-5) alongwith some other police personnel immediately rushed to the spot and discovered a bicycle loaded with one big cartoon and another cartoon lying near the bicycle in front of the cloth shop of Manik Debnath. Both the appellants were also found nearby the said bicycle. On suspicion, Jagiroad Police checked the cartoons and opened. By opening, Police discovered 14 (fourteen) packets of suspected Ganja, 7 (seven) packets in each cartoon nicely packed with polythene paper and recovered the same from the possession of the appellants and seized after weighment. The net weight of the suspected ganja was found to be 80.640 kg. The samples were drawn in presence of the witnesses. This operation was conducted on 12.9.2002. On 13.9.2002, samples were sent to Forensic Science Laboratory, in short, “FSL” through the Superintendent of Police, Morigaon for chemical examination. Police arrested both the appellants and had taken into custody. The sample so sent, gave positive test for cannabis.
5. Having received the FSL report, S.I., Sri T. Mahanta lodged the FIR (Ext. 5) with Jagiroad Police Station. A case was accordingly registered under Section 20(b)(1)/29 of the NDPS Act, 1985.
6. Learned Special Judge, Morigaon having found materials sufficient to frame charges, did frame charges under Section 20 (ii)(c) read with Section 29 of the NDPS Act against both the appellants. Appellants pleaded not guilty to the charges when read over and explained to them and claimed their trial.
7. Trial proceeded. Learned trial court examined 7 (seven) witnesses for the prosecution. None was examined as defence witness, nor any document was proved for the defence. The defence case was denial simplic-iter. At the conclusion of the trial, both the appellants were convicted as hereinbefore stated.
8. At this stage, it would be appropriate to mention that this case was remanded back by this Court with a direction when both the appellants filed an appeal against the judgment and order of conviction passed earlier. This instant appeal is, therefore, against the judgment and order of conviction passed after remand.
9. We have heard Sri J.M. Choudhury, learned senior counsel, assisted by Mr. R. Sekhar and Mrs. S. Choudhury, for and on behalf of the appellants, and Sri B.S. Sinha, learned Additional Public Prosecutor, Assam, for and on behalf of opposite party, the State of Assam.
10. Mr. J.M. Choudhury, learned senior counsel for the appellants has challenged the legality and correctness of the impugned judgment and order of conviction mainly on the following grounds:
a) For that the evidence on record does not warrant the conviction and sentence of the accused appellants under Section 20(ii)(c)/29 of the NDPS Act and as such the conviction and sentence of the accused appellants are liable to be set aside and quashed.
b) For that the evidence relied upon by the prosecution have not conclusively proved the guilt of the appellants as the perpetrators of the alleged crime and as such the impugned judgment and order dated 16.9.2005 convicting the appellants under Section 20(ii)(c)/29 of the NDPS Act is liable to be set aside and quashed.
c) For that the PW-1, 2 & 3, who are the witnesses to the seizure, have stated in then-evidence that they did not see where from the articles were seized by the police and how the sample of the seized articles were taken, the simply signed on the seizure list as police has asked them to sign on it and told them that the seized article contained “Ganja”. As such it casts a serious doubts as to the version of the prosecution that the seized articles were recovered from the possession of the appellants and as such the conviction and sentence of the accused appellants, based upon such evidence, are liable to be set aside and quashed.
d) For that, in the instant case, the PW 4 & 5, who are the police personnel from the Jagiroad Police Station and members of the raiding party, have stated in their evidence that on receipt of a secret information regarding some narcotic drugs, they made a GD Entry and proceeded to the place of occurrence and caught the appellants red handed alongwith the ‘Ganja’. But this information has not been forwarded and communicated to their immediate superior as envisages under Section 42 of the NDPS Act. Failure on the part of the prosecution to comply with the mandatory provisions of law as laid down in Section 42 of the NDPS Act, casts a serious doubt as to the version of the prosecution story and as such the conviction and sentence of the accused appellants are liable to be set aide and quashed.
e) For that, in the instant case, though the Hon’ble High Court set aside the earlier judgment and order dated 30.10.2003 and remanded back the case to examine the witnesses from the FSL, but the learned Special judge, Morigaon, after remand of the case; not only examined the witnesses from the FSL as the PW-8, but also examined one Sri Imran Hussain Khandakar, the then Officer-in-Charge of the Jagiroad Police Station as PW-7, who was not even listed as a witness in the Charge sheet. But after examination of the PW-8, the witness from the FSL, when the defence Filed an application for recalling the I/O of case, S.I.T. Mahanta, who was examined as PW-5, the learned Special Judge, Morigaon, rejected the application on the ground that since the Hon’ble High Court has remanded back the case only to examine the witness from the FSL as such the witness cannot be recalled. Though the learned Special Judge, Morigaon, has rejected the application of the defence to recall the I/O, but he has allowed the prosecution to examine Sri Imran Hussain Khandakar, as PW-7, who was not even listed as a witness in the Charge Sheet and this has been ostensibly done to fill up certain lacunae of the prosecution as such, the judgment and order dated 16.9.2005, convicting the accused appellants under Section 20(ii)(c)/29 of the NDPS Act is liable to be set aside and quashed.
11. The Narcotic Drugs and Psychotropic Substances Act is mostly adorned with technicalities, Legislature, perhaps taking into consideration of the severity of punishment provided in the Act itself incorporated such technicalities to be observed during investigation of a case under this Act. Failure/deviation thereon on the part of the Investigating Agency renders the case of the prosecution vitiated. So, it is obligatory on the part of the Investigating Officer/Agency to adhere to the provisions of the Act strictly. Chapter-V of this Act provides for the procedure for arrest without warrant of the offender/offenders, search and seizure of any narcotic drugs or Controlled Substance in respect of which an offence punishable under this Act has been committed. It is in a given case when the prosecution fails to prove the requirements under this Act; the case is bound to fail. In our present appeal, we have come across that Jagiroad Police personnel basing on a secret information made a GD Entry No. 283, dated 12.9.2002 that some psychotropic substances was taken to Jagiroad Dry Fish Market by some drug traffickers. Sliri Troilokya Mahanta (PW-5) was entrusted to make investigation alongwith some other police personnel. He came immediately to the Dry Fish Market and discovered the cartoons, one loaded in a bicycle and another lying by its side in front of the appellant Manik Debnath’s cloth shop. Both the appellants were also found nearby the cartoons. The bicycle in which one cartoon was found loaded belonged to appellant Manik Debnath. The said two cartoons were opened in presence of the witnesses and discovered some suspected Ganja nicely packed with polythene paper. There were altogether 14 packets, 7 packets in each cartoon. Weighment was taken. Altogether 80.640 kgs net weight was found. Samples were drawn and taken in presence of the witnesses. Sample had been sent for chemical examination to Forensic Science Laboratory.
12. The most pertinent question to be decided in the appeal is whether the arrest of the appellants, search and seizure of the suspected Ganja had been done in conformity with the provisions of Sections 41, 42 and 43 of the NDPS Act 1985. The answer to this question had been offered by Sri J.M. Choudhury, learned senior counsel, in negative. Sri J.M. Choudhury while arguing this appeal submitted that the arrest of the appellants, search and seizure was not made in accordance with the provisions of Sections 41, 42 and 43 of the Act. In support of his contention, Sri Choudhury led us through the provisions of those sections of law.
13. Section 41 of the Act deals with the subjects, such as powers to issue warrant and authorization while Section 42 deals with the subject of powers of entry, search, seizure and arrest without warrant or authorization. Section 43 deals with the subject of powers of seizure and arrest in a public place. This case being in the nature of illegal possession of psychotropic substance, all the provisions incorporated in Sections 41 to 43 are to be strictly followed.
14. The facts and circumstances appearing in the case apparently do not embrace the provisions of Section 41 of the Act. There fore, we do not propose to discuss the pro visions of this Section and its implication as well as application.
But we are very much concerned with the provisions of Sections 42 and 43 of the Act since facts disclose that the seizure and arrest was made without a warrant from a Magistrate as provided in Sub-section (1) of Section 41 of the Act. Sub-section (2) of Section 41 speaks of the officers who can be authorized to act under the Act.
The Central Government or the State Government as the case may be, has got the power to authorize such officers of the departments mentioned in Sub-section (1) of Section 42 by general or special powers except the officers to wit peon, sepoy or constables to enter into and search such building, conveyance or place.
15. Therefore, authority has been bestowed on those officer (s) of the Department, who is/are specifically authorized either by the Central Government or the State Government. The officer/officers not so authorized is/are competent to take action as per the provisions of Section 42 or Section 43 of the Act.
16. In this case, we found from the perusal of the records that one Sub-Inspector of Police, T. Mahanta (PW-5) was entrusted to enquire into the matter and accordingly he had taken action in that regard. But it is in the darkness whether this officer had been specially empowered/authorized to take action as per the provisions of Sections 42 and 43 of the Act. It is nowhere found from the case record that this aspect has been proved by the prosecution. This aspect has not of-course been challenged by the learned Counsel for the appellants rather has challenged the factum of non-performance of the provisions of Sub-section (2) of Section 42 of the Act. This issue can be dealt with at an appropriate place but before that it would be appropriate to discuss the other important provisions of Sections 42 and 43 of the Act.
17. It is obligatory on the part of the prosecution to show that investigation of a case i.e. the factum of arrest, search and seizure had been properly made as per the provisions of the Act. If the arrest, search and seizure were made by an officer not authorized as per the provisions of the Act, the arrest so made, search and seizure so conducted would be illegal and entire trial would be vitiated thereby. This Court has already given an indication that the officer, who made search and seizure and arrest of the appellants was not authorized by the State Government under the provisions of Section 41 of the Act. This aspect of the matter, however, did not strike the mind of the trial court and that nothing has been recorded in the judgment. The learned trial court accepted as rightly made the search, seizure and arrest of the appellants as well by Sri T. Mahanta (PW-5) as per the provisions of the Act.
18. It is the duty of the trial court to see and adhere to the provisions provided for while deciding a case strictly. Failure to observe/follow such provisions makes the case of the prosecution weakened fields, which ultimately results in acquittal of the accused since the NDPS Act provides more stringent procedure to be adopted, deviation there from, during investigation or trial vitiates the trial. Since the appellants faced the trial under this Act, which provides severe punishment, adherence to such provision was a must on the part of the investigation Agency. Since the search, seizure and arrest was made by the Sub-Inspector of Police, learned trial Court ought not to have accepted the same as done as per the provisions of the Act. Learned trial Court while dealing with the case perhaps failed to look into the provisions of Sections 41, 42 and 43 of the Act and accepted the factum of seizure and arrest beyond devoid of any procedural irregularity. In a case of this nature it is the bounden duty of the prosecution to prove of important aspects of the matter so that no finger can be raised against the legality and correctness of the judgment and order. When the Act itself provides that the officers of the department concerned specially authorized/empowered for the purpose, the facts ought to have been proved by production of the proper notification notified either by the Central or the State Government as the case may be. In this case, apparently no such notification has been proved by the prosecution to show that the seizure, search and arrest had been made by the authorized officers and not otherwise. There fore, law is very clear on this point that when an action is not taken as per the law provided, therefore the action so resorted to would be illegal ab-initio and it cannot subsequently be corrected or held to be legal.
19. Prosecution failed to prove that S.I., Sri T. Mahanta was an authorised officer to take action or to enquire into the matter as per the provisions of Sections 42 and 43 of the Act. When this is wanting, the search, seizure and arrest made by him would be rendered illegal and no conviction can be based upon it. This is one of the major set back in the case of the prosecution. Learned trial Court while dictating the judgment, discussed many more things but failed to see the provisions which are very very important to be adhered to. Simply because a seizure was made by a police officer, the same should not be accepted without scrutinizing the same. In this view of the matter, the provisions pro vided therefor in the Act are to be looked into properly. So the search, seizure and arrest made by S.I. Sri T. Mahanta are illegal ab-initio.
20. The important issue that raised by learned senior counsel is in the context of failure to observe the provisions of Sub-section (2) of Section 42 of the Act, which speaks as under:
(2) Whether an officer takes down any information in writing under Sub-section (1) or records ground for his belief under the proviso thereto, he shall forthwith send a copy therefor to his immediate official superior.
21. We have already found from the record that the GD Entry No. 283 dated 12.9.02 was made on receipt of a secret information and S.I. Sri T. Mahanta was entrusted to make an enquiry. Admittedly, that secret in formation was reduced into writing in the form of GD Entry No. 283, dated 12.9.02, which has been proved and marked as Ext. 2 and 3 by the prosecution. So from the reading of the Ext. 4(1) and 4(2), it appears that the grounds of belief under the proviso to Sub-section (1) of Section 42 has not been incorporated therein. In this context, it would be appropriate to refer to the proviso to Sub-section (1) of Section 42 of the Act, which reads as under:
(1) Any such officer (being an officer superior in the rank to a peon, sepoy or constable) of the department of Central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter-IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building conveyance or enclosed place may, between sunrise and sunset-
(a) Enter into and search any such building, conveyance or place;
(b) In case of resistance, break open any door and remove any obstacle to such entry;
(c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter-IV relating to such drug or substance; and
(d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter-IV relating to such drug or substance;
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the ground of his belief.
Therefore, it is incumbent on the officer concerned to state the grounds while search warrant or authorization could not be obtained.
22. Seizure and arrest was admittedly made at night in the Dry Fish Market at Jagiroad and therefore, the officer ought to have incorporated the grounds of his inability to take action as per the provision of Sub-section (1) of Section 42.
23. Ext. 4(1) and Ext. 4(2) are found to be very silent in the eye of law. Therefore, apparently, this provision has not been followed. It is made obligatory on the part of the officer, who makes such writing to send a copy of such written information within 72 hours to his immediate superior officer. This is a clear violation of this Sub-section (2) of Section 42 of this Act.
24. Sri J.M. Choudhury, therefore, argued that failure to observe/follow this provision renders the judgment and order of conviction not sustainable in law. At this juncture, another pertinent question arises whether this provision is mandatory or not. The answer is apparently “yes”. Requirement of reducing information into writing only is directory and not mandatory. Therefore, option has been given to the officer either to reduce into writing or not reduce into writing. When it is reduced into writing, such information shall have to be furnished to the superior officer within 72 hours.
25. This sub-section clearly shows that information can be forwarded to the immediate superior authority when such information is only taken down in writing. Therefore, by necessary implication, if such information has not been recorded by the officer, question of sending any such information to any superiors officer does not arise. Therefore, requirement under Section 42 of the Act for reducing the information into writing can be said to be only directory and not mandatory.
26. This sub-section is made obligatory to give reasons/grounds by the officer concerned for not taking action under Section 41 of the Act. We have already stated hereinbefore that Ext. 4(1) and Ext. 4(2) are very much silent in this point. Intention of the legislature to incorporate the sub-section is perhaps to prevent the abuse of power during search, seizure and arrest at night during odd hours. When an officer did not record any reason for making search at the odd hours of night, and being empowered the officer has not complied with the mandatory provisions’ as per the provisions of Sub-section (1) of Section 42 of the Act, the search and seizure are apparently illegal.
27 It is an admitted fact that search and seizure was made at night by S.I. Sri T. Mahanta without recording the reasons whatsoever. That apart, Sri T. Mahanta, who made search and seizure was not empowered or authorised by the State Government to take action under the NDPS Act. Thus, action taken by Sri T. Mahanta was without authorization. Learned trial court while proceeding with the trial and also at the time of writing the judgment failed to pursue these important provisions of law and thus illegally recorded the conviction of both the appellants. There appears a total non-compliance of the mandatory provisions of the NDPS Act.
28. Sri J.M. Choudhury, learned senior Counsel, therefore, urged this Court to set aside and quash the impugned judgment and order of conviction on the ground of non-compliance of the provisions of Sections 41, 42 and 43 of the Act. The next criticism that centres around the case of the persecution case is in regard to the alleged seizure of the cartoons from the possession of the appellants. It is in the evidence on record as well that having received the secret information, S.I. Sri T. Mahanta alongwith other police officials rushed and visited the market and discovered the cartoons, one loaded in a bi-cycle and another lying near it and also found the presence of both the appellants near the bicycle, which allegedly belonged to appellant Manik Debnath.
29. It is also in the evidence that the cartoons were found in front of the shop of appellant Manik Debnath. In the face of this fact, it is argued by Sri J.M. Choudhury in order to rope the appellants under the charge of conscious possession of the cartoons containing Ganja, it has to be proved by the prosecution beyond all reasonable doubt. It is argued by him that cloth shop of the appellant Manik Debnath was admittedly situated in the dry fish market. The market generally have several shops and other business establishments. Shopkeepers cannot be held liable for possession of the same unless it is proved that the shopkeeper has conscious possession of the same
30. A mere finding/discovery of any incriminating article in front of a particular shopkeeper, there cannot be a natural presumption that the same belongs to that particular shopkeeper. Sri Choudhury argued that it is obligatory on the part of the prosecution to establish the fact of conscious possession of the appellants of the cartoons found and seized. Failure to prove such conscious possession makes the whole prosecution unsettled. Sri Choudhury in support of his contention relied upon in the case between Avtar Singh and Ors. v. State of Punjab Reported in . Paragraph 6 of the judgment speaks of possession, which reads as follows:
6. Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily, if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State of Punjab arising under the Optum Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW-4, the Head constable, it is seen that appellant No. 3 (accused No. 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused No. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW-2), one person sitting in the cabin by the side of the driver and another person sitting in the back ” of the truck fled. No investigation has been directed in ascertain the role placed by each of the accused and the nexus between the accused and the offending goods. The word, ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connection. Possession and ownership need not always go together but the minimum requisite element, which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants–one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons, who were merely sitting on the bags. In the absence of proof of anything more, cannot be presumed to be in possession of goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody. Conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstances that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C. not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things. It is not proper to raise a presumption under Section 114 of Evidence Act, nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35, which relates to culpabale state of mind, without considering the aspect of possession. The trial court invoked the presumption under Section 54 of the Act without addressing itself to the question,, of possession. The approach of both the Courts is erroneous in law. Both the Courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial Court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.
Thus, law is very clear on this point. Conscious possession of the articles must be proved by the prosecution to rope the accused person or persons else not.
31. In the context of proof of possession if we look into the evidence of S.I., T. Mahanta (PW-5) and others, it would be apparent that their evidence are not at all acceptable to hold that the appellants had their conscious possession of the cartoons, which were discovered in front of the shop of appellant Manik Debnath. It is said that the bicycle in which one cartoon was found loaded belong to appellant Manik Debnath. No investigation was conducted by S.I. Sri T. Mahanta and others to prove the factum of ownership of the bicycle, therefore, this aspect gives a severe jolt in the case of the prosecution in regard to the possession of the cartoon.
32. PW-1, PW-2 and PW 3 are all seizure witnesses. Let us now scrutinize their evidences. It is found from the evidence on record that neither of them did witness the actual recovery of the cartoons. It is stated that police obtained their signatures in seizure memo. Samples were drawn by the police. They also stated in their evidence that police told them that each cartoon contained Ganja.
33. Their testimony, therefore, cannot inspire confidence in the mind of the Court that the cartoons, which contained Ganja had been seized from the possession of the appellants. Except the evidence of police official, namely, three police officers, there is no other evidence to show that the cartoon had been found in the possession of appellants and had been seized from their possession. Therefore, requirement of law is not established by cogent and acceptable evidence. Law requires proof of conscious possession of the incriminating article for the purpose of proof of guilt of the accused appellants. When there is no such proof available on the record against the appellants, it would be futile lo effort record a finding of conviction.
34. From the scrutiny of the facts and circumstances of this case, the evidence on record both oral and documentary and the law laid down by the Apex Court, this Court finds that learned trial court illegally recorded the finding of conviction of the appellants. This Court finds ample fault and lacuna in the case of the prosecution, which cannot justify the case of the prosecution to be in the right direction for warranting the conviction of the appellants.
35. The conviction and sentence thus awarded by the learned trial Court by the impugned judgment and order dated 16.09.2005 cannot sustain in law against the appellants. The judgment and order of conviction are accordingly set aside and quashed. Both the appellants are acquitted and set at liberty.
