JUDGMENT
D. Biswas, Acting C.J.
1. This appeal is directed against the judgment and order dated 15.7.2003 passed by the learned Special Judge, Kokrajhar in Special Case No. 15 of 2002 convicting the appellant under Section 20(b)(1) of the NDPS Act, 1985. On conviction, the learned Special Judge sentenced the appellant to suffer Rigorous Imprisonment for 4 years and to pay a fine of Rs. 30,000/- in default, to further Rigorous imprisonment for two months.
2. Shri A.S. Choudhury, learned senior counsel appeared for the appellant, while Shri B.S. Sinha, learned Public Prosecutor appeared for the respondent State.
3. The appellant was prosecuted for possessing 85 packets of ganja concealed in a separate cabinet inside the hold of the truck No. WMK 8859. The truck was searched in the National Highway 31-C by Shri Ranjit Kr. Basumatary, S.I. of Police on 6.3.2002 and the aforesaid quantity of ganja was detected and seized. On completion of investigation, the Sub Inspector of Police submitted charge sheet against the appellant under Section 20(b)(1) of the NDPS Act. Charge was accordingly framed against the appellant under the aforesaid section of law and explained to him to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined 9 witnesses altogether. PW-1 is the Officers Incharge of Simultapu Outpost. On 6.3.2002 at about 1 P.M., he along with other members of the staff, searched the aforesaid truck WMK 8859 on the National Highway and found 85 packets of ganja which he seized vide Exhibit-A. PW-1 also seized registration and other documents of the truck from the appellant vide Ext. 4. He collected sample and sent the same to the forensic expert. PW-2, the Scientific Officer, FSL, who had testified that all the 85 packets tested positive for cannabis. PWs- 3, 4 and 5 are constables who were on duty along with PW-1 while the search and seizure were carried out. PWs-6, 7 and 8 are independent witnesses who were present at the time of search. All of them supported PW-1 and deposed that 85 packets of cannabis were recovered from the seized truck driven by the appellant in their presence. PW-9 is the I.O. On the day of search, he received a first information report from PW-1 and registered a case and endorsed the same to PW-1 for investigation. In due course, on completion of investigation, charge sheet was submitted. The evidence on record do not show any inconsistency so as to render the prosecution story of search and seizure of 85 packets of cannabis from the truck driven by the appellant incredible. The defence failed to elicit anything out of the witnesses during the course of cross-examination adverse to the prosecution case. PW-2, the forensic expert, apart from testifying the manner in which he had carried the examination of the seized articles, tendered in evidence the report submitted by him as Ext. 15.
5. PW-9 deposed that he had received the FIR from PW-1, registered a case and endorsed the same in favour of PW-1 for investigation, as there was no other officer attached to the outpost. Thereafter, the charge sheet was submitted as per direction of the SDPO, Gossaigaon.
6. The evidence above clearly establish the fact that the vehicle No. WMK 8859 was searched on the National Highway and 85 packets of cannabis were recovered from inside the hidden cabin of the truck driven by the appellant. Shri A.S. Choudhury, learned senior counsel for the appellant, however, questioned the legality and validity of search, seizure and investigation by PW-1. According to Shri Choudhury, PW-1 is not an officer empowered and authorised under Section 42 of the Act and, therefore, the trial stands vitiated.
7. The learned Public Prosecutor produced a copy of the notification dated 25.4.1995 which reads as follows :-
“NOTIFICATION
Dated Dispur, the 25th April/95
No. EX. 145/85/290: – 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 and above the rank of Assistant Inspector of Excise, Police Officers 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 powers and perform the duties specified in Section 42 within the areas of their respective jurisdiction and also authorises the said Officer 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 modifies this Department notification No. EX.145/85/258 dated 6.2.1989.
Sd/-
Secretary to the Govt. of Assam.
Excise Department.”
8. It would appear from above that an officer of the rank of Sub-Inspector and above of the State Police is empowered to investigate a case relating to an offence under the NDPS Act. Therefore, the contention of Shri Choudhury, learned senior counsel that the investigation is vitiated for want of a notification under Sub-section (1) of Section 42 of the Act is not tenable in law. In the instant case, the search was conducted without any prior information as contemplated by Section 42 of the Act. The packets of cannabis were seized during the normal course of investigation of a suspected offence and, therefore, no fault can be found with the investigation for non-compliance of Section 50.
9. As stated above, the evidence of PWs, both official and unofficial are consistent and clinching. The only conclusion plausible from the evidence of the above witnesses is that the appellant was carrying 85 packets of cannabis clandestinely in his truck. The possession of cannabis seized during the course of transit is an offence under the provisions of Section 20(b)(1) of the NDPS Act.
10. In the result, the appeal is dismissed. Registry is directed to transmit a copy of the judgment along with the LC records to the concerned Special Judge, Kokrajhar for follow-up action.