JUDGMENT : C.R. Sarma, J. The above mentioned appeals have arisen out of the common judgment and order, dated 31.10.2012, passed by the learned Special Judge, Jorhat, in Special Case No. 8/2010 (arising out of GR Case No. 1476/2010). The convicted persons (two), as appellants, by filing the present appeals separately, have challenged the correctness and legality of the impugned judgment and order. As both the appeals have arisen out of the same judgment and order aforesaid and as agreed to by the learned Counsel for both the appellants, for the sake of convenience, I have heard the appeals together and propose to dispose of the same by this common judgment and order. 2. The prosecution case, may, in brief, be stated as follows: On 17.11.2010 Havildar Sri Uday Pratap Singh (PW-1) of Police Reserve, Jorhat, while travelling in a train from Dimapur to Jorhat, found the appellants, who were his co-passengers, were carrying two VIP bags and one AIR bag in a suspicious manner. At Jorhat Railway Station, he noticed that the appellants, while alighting from the train took the back door of the train, which strengthened his suspicion. Therefore, suspecting them to have carried ganja, Sri Uday Pratap Singh, along with Sri Dipak Charingia (PW-3), followed and apprehended them near the gate of the bungalow of the Superintendent of Police, Jorhat and informed the Police. On being so informed, S.I. Sri Hemen Das (PW-9), obtaining an authority letter, arrived at the said place and after opening the said bags, in presence of witnesses, found that ganja was carried by the appellants in the said bags. The PW-9 seized 27 Kg. of ganja from the bags carried by accused Sri Sarvesh Kr. Pandey and 13 Kgs. of ganja from the bag carried by accused Sri Rajendra Prasad and thus, 40 Kgs. of ganja from the accused persons. Accordingly, the accused persons i.e. the appellants were arrested and the bags were seized. The samples of the ganja were taken and sent to the Forensic Science Laboratory, Guwahati for examination. As per the report, received from the Forensic Science Laboratory, Guwahati, the sample of the seized ganja gave positive test for cannabis (ganja). 3. At the close of the investigation, Police submitted charge-sheet against the appellants under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act (for short, NDPS Act). As per the report, received from the Forensic Science Laboratory, Guwahati, the sample of the seized ganja gave positive test for cannabis (ganja). 3. At the close of the investigation, Police submitted charge-sheet against the appellants under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act (for short, NDPS Act). The learned Special Judge, Jorhat, framed charges under Section 20(b) of the NDPS Act. The charge was read over and explained to the accused persons to which they pleaded not guilty. They claimed to be tried. 4. In order to prove its case, the prosecution examined as many as 11 (eleven) witnesses including the Investigating Officer (I.O.) and the Scientific Officer. At the close of the evidence for the prosecution, the accused persons were examined, under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence. 5. Considering the evidence, on-record, the learned Special Judge held the appellants guilty of the offence under Sections 20(b)(ii)(C) of the NDPS Act and convicted them under Sections 20(b)(ii)(C) of the NDPS Act and accordingly, sentenced each of them to suffer rigorous imprisonment for 10 (ten) years and pay fine of Rs. 1 Lakh, in default, suffer rigorous imprisonment for another period of 6 (six) months. 6. Aggrieved by the said conviction and sentence, the convicts, as appellants have come up with this appeal. 7. I have heard Mr. M.K. Das, learned Counsel, appearing for the appellants, in Criminal Appeal No. 91/2013 and Mr. B. Pathak, learned Counsel, appearing for the appellants, in Criminal Appeal No. 85/2014. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam, appearing for the State in both the appeals. 8. Mr. M.K. Das, learned Counsel for the appellants, taking this Court through evidence, on record, as well as the seizure list, has submitted that no seizure of ganja was made by the authorised Officer i.e. PW-9 from the conscious possession of the appellants. The learned Counsel for the appellants has submitted that, as alleged by the prosecution, the appellants were initially detained and apprehended by Havildar Uday Pratap Singh and the bags along with ganja were seized by PW-9 on being shown and produced by Havildar Uday Pratap Singh and as such the seizure itself was not lawful, for which the same can't lead to the safe conclusion that the seized ganja was found in possession of the appellants. 9. The learned Counsel for the appellants has also submitted that none of the seizure list witnesses supported the prosecution version that the ganja was seized by PW-9 from the appellants and as such the prosecution failed to prove that the seizure was made from the possession of the appellants. It is also submitted that the authority letter, issued by the Deputy Superintendent of Police, authorising PW-9 to search and seize, does not contain the date of issue of order and place of search. Therefore, it is submitted that the said authority letter can't be treated as an authorisation to make search and seizure from the appellants. It is also submitted that the seizure has been made violating the provisions, prescribed by Sections, 41, 42 and 50 of the NDPS Act. 10. In tune of the argument, advanced by the learned Counsel for the appellants in Criminal Appeal No. 91/2013, Mr. B. Pathak, learned Counsel for the appellant in Criminal Appeal No. 85/2014, has submitted that no seizure was directly made from the possession of the appellants and that the I.O. seized the concerned bags and ganja, on being produced by Havildar Sri Uday Pratap Singh, who claimed to have travelled with the appellants. Therefore, it is submitted that the prosecution failed to establish that the seizure was made from possession of the appellants and as such, the conviction and sentence, recorded against the appellants are not maintainable. 11. The learned Counsel for the appellants, referring to the seizure list i.e. Exts. 1 & 2, has submitted that commercial quantity was not been seized from Sri Rajendra Prasad. As revealed from the evidence of PW-9, 10 Kgs. and 3 Kgs. i.e. 13 Kgs. of psychotropic drugs was seized from the accused Sri Rajendra Prasad. It is submitted that the said quantity, found in possession of Sri Rajendra Prasad, being less than the commercial quantity, the conviction, recorded against Sri Rajendra Prasad, under Sections 20(b)(ii)(C) of the NDPS Act was unauthorised, illegal and unlawful. 12. Mr. Pathak, learned Counsel for the appellants, referring to the evidence, on record, has submitted that the prosecution has failed to prove, beyond all reasonable doubt, that the appellants were in possession of the seized ganja. 13. 12. Mr. Pathak, learned Counsel for the appellants, referring to the evidence, on record, has submitted that the prosecution has failed to prove, beyond all reasonable doubt, that the appellants were in possession of the seized ganja. 13. In view of the above, the learned Counsel for the appellants have submitted that the conviction and sentence aforesaid are liable to be set aside and that the appellants are entitled to be acquitted. 14. Controverting the said argument, advanced by the learned Counsel for the appellants, Mr. K. Munir, learned Additional Public Prosecutor has submitted that there is sufficient evidence to show that the appellants had carried the said ganja in three bags and that the authorised officer i.e. PW-9 had seized the same from the possession of the appellants. Supporting the impugned conviction and sentence, the learned Additional Public Prosecutor has submitted that the learned Special Judge committed no error by convicting and sentencing the appellants. 15. Having heard the learned Counsel, appearing for both the parties, I have carefully perused the evidence, on record, and the impugned judgment and order. 16. The entire prosecution case is based on the evidence of Havildar Sri Uday Pratap Singh i.e. PW-1, who had initially detected and apprehended the appellants and the evidence of PW-9, who had seized the same. 17. Havildar Sri Uday Pratap Singh, deposing as PW-1, stated that, while travelling in train, along with the appellants, suspicion arose in his mind and accordingly, after arriving at the Jorhat Railway Station, he along with Dipak Charingia, had followed the appellants, who were carrying two VIP bags and one airbag and apprehended them in front of the gate of the bungalow of the Superintendent of Police, Jorhat. He further stated that, on being informed by him, Police arrived at the said place and after opening the bags, six packets of ganja were found. He further stated that the said ganja was seized from by the appellants by Ext. Nos. 1 and 2. He has exhibited his signatures as Ext. No. 1(1) and 1(2) and the bags, as Material Ext. No. 1. This witness clearly stated that Police had opened the bags of the accused persons and found ganja therein. Though this witness stated that he was travelling in the same train with the appellants, no train ticket was seized from his possession. He has exhibited his signatures as Ext. No. 1(1) and 1(2) and the bags, as Material Ext. No. 1. This witness clearly stated that Police had opened the bags of the accused persons and found ganja therein. Though this witness stated that he was travelling in the same train with the appellants, no train ticket was seized from his possession. Hence, except his oral evidence, there is nothing, on record, to find that, on the relevant date, he was travelling by the same train used by the appellants. In his cross-examination, this witness further stated that the appellants, after getting down from the train at Jorhat station had taken a rikshaw. But the rikshaw puller has not been examined to substantiate the said claim. 18. Sri Keshab Gogoi, who deposed as PW-2, has stated that S.I. Sri Hemen Das (PW-9) had seized ganja and sealed the same by using a coin taken from him, for seal impression. This witness did not state as to from whom the seizure was made. Hence, his evidence does not indicate that the seizure was made from the possession of the appellants. 19. Sri Dipak Charingia, deposing as PW-3, stated that he went to the Jorhat Railway Station for picking up PW-1 and while returning from the railway station, PW-1, pointing to a rikshaw, informed him that some suspecting articles were carried in the said rikshaw. He further stated that, after dropping the PW-1 at the gate of the S.P.'s bungalow, he attended his duty. He further stated that while he was entering the compound of S.P.'s bungalow, PW-1 had caught the appellants along with the VIP bags. He further stated that he was informed by PW-1 that ganja was found from said VIP bags. He stated that he did not notice as to what was there inside the VIP bags. Though, this witness was declared hostile and cross-examined by the prosecution, nothing incriminating could be elicited against the appellants. PW-1 stated that he, along with Sri Dipak Charingia (i.e. PW-3) had restrained the accused persons by showing his identity card, but PW-3 did not support the said version of the appellants. He clearly stated that, after dropping the PW-1, he (PW-3), had resumed his duty. From the said evidence of PW-3, it can't be held that ganja was seized from the possession of the appellant. 20. He clearly stated that, after dropping the PW-1, he (PW-3), had resumed his duty. From the said evidence of PW-3, it can't be held that ganja was seized from the possession of the appellant. 20. Sri Krishna Saikia (Havildar), who was one of the seizure list witnesses, deposing as PW-4, stated that, while performing his duty at the S.P.'s bungalow, he saw Havildar Sri Uday Pratap Singh (i.e. PW-1), apprehending two persons, who were travelling in a rikshaw. He also state that the appellants had carried VIP bags and that, at the time of the seizure of the VIP bags, he was present. He has exhibited his signatures as Ext. 1(2) and 2(2). This witness was also declared hostile and cross-examined by the prosecution. He denied the suggestion, put to him by the prosecution that six packets of ganja were found inside the bags. 21. In his cross-examination, made on behalf of the defence, this witness stated that S.I. Hemen Das (PW-9) had taken his signature on the seizure list and that he had put his signature inside the compound of the S.P.'s bungalow. He further stated that neither the seizure lists were read over to him nor he had read the same. He also stated that he was not present at the time of opening the VIP bags. He further stated that, except Sri Hemen Das (PW-9), he did not meet any higher Police Officer at the place of occurrence. From the above, it is found that PW-4 did not support the prosecution version that ganja was seized from the possession of the appellants. Though, there were two other seizure list witnesses, namely, Md. Tanveer Ahmed Khan and Mr. Ajit Bhuyan, the prosecution failed to examine them. The evidence of PW-4 rules out the presence of PW-7, who was the I/c D.S.P. and PW-8, who was Inspector of Police, at the place of seizure. However, PW-7 and PW-8 were not witnesses to the seizure of the ganja. 22. Though PW-1 (who was one of the seizure list witnesses), stated that six packets of ganja was found in the said bags, PW-4, who was also a seizure list witness, declined to support the said evidence given by PW-1. Hence, I find no corroboration in the evidence of PW-1 to believe that the ganja was seized from the possession of the appellants. Hence, I find no corroboration in the evidence of PW-1 to believe that the ganja was seized from the possession of the appellants. As the PW-1 claimed to have followed the appellants from the railway station and apprehended/detained the accused persons, he appears to have interest to get the accused persons convicted. Hence, in order to accept the evidence of PW-1, regarding seizure/recovery of ganja from the accused persons, corroboration, in respect of the evidence given by PW-1, more particularly, with regard to the seizure, was necessary. 23. Mr. Pankaj Kumar Kakoti, In-charge, Deputy Superintendent of Police (Headquarter), Jorhat, deposing as PW-7, stated that he had authorised S.I. Mr. Hemen Das to search the bags and seized the suspected ganja. He has exhibited the authority letter as Ext. No. 8 and his signature thereon as Ext. 8(1). 24. Therefore, as required by Sections 41,42,43 and 50 of the NDPS Act, S.I. Hemen Das i.e. PW-9 was the authorised officer to make the search and seizure. The punishment, provided by the NDPS Act, being stringent and severe, the procedure prescribed by the Act is required to be strictly complied with without any deviation. There can be no dispute that any search or seizure made by an authorised person is not lawful and no conviction can be based on such unauthorised search and seizure. 25. Mr. Hemen Das, who was authorised to make search and seizure, deposing as PW-9, stated that the Officer in charge of Jorhat Police Station informed him that two persons were apprehended near the S.P.'s bungalow on suspicion and that they were carrying drugs. Accordingly, as stated by PW-9, on being authorised by the D.S.P. (Headquarter), he had rushed to the said place and seized the ganja. He (PW-9), in his evidence (in-chief), stated that he had seized 10 Kgs and 4 Kgs. of drugs from the bag of Sri Sarvesh Kumar Pandey and another 10 Kgs. plus 4 Kgs. of ganja from the another bag of Sri Sarvesh Kumar Pandey. And thus, he seized 27 bags of ganja from Sri Sarvesh Kumar Pandey. He also stated that he had seized 10 Kgs and 4 Kgs from the Rajendra Prasad. But as per Ext. No. 2, PW-9 had seized 13 Kgs (10 Kgs. + 3 Kgs.) from Sri Rajendra Prasad. of ganja from the another bag of Sri Sarvesh Kumar Pandey. And thus, he seized 27 bags of ganja from Sri Sarvesh Kumar Pandey. He also stated that he had seized 10 Kgs and 4 Kgs from the Rajendra Prasad. But as per Ext. No. 2, PW-9 had seized 13 Kgs (10 Kgs. + 3 Kgs.) from Sri Rajendra Prasad. Hence, there is no corroboration regarding the quality of seizure in the evidence of PW-9 as well as in seizure list. He also stated that he had seized one briefcase containing 13 Kgs. of ganja from Sri Sarvesh Kumar Pandey and 14 Kgs. of ganja from Sri Rajendra Prasad. He further stated that he took weight of the said seized article by procuring the weighting instrument from Sri Ajit Bhuyan (not examined). 26. In his cross-examination, this witness stated that by the said authority letter he was directed to seized the articles, which were already recovered and that in the said authority letter, there was no mention as to from whom the drug was required to be seized and on which date. He also stated that before his arrival in the place of occurrence, Havildar Uday Pratap Singh (PW-1) had already recovered the articles. 27. Referring to the Ext. Nos. 1 to 4 i.e. seizure lists, he stated that the said seized items were seized on being shown and produced by Havildar Uday Pratap Singh (PW-1) and that he did not directly seize the articles from the possession of the accused persons. 28. From the said evidence, given by PW-9, it is clearly found that, in fact, the seizure was made from PW-1 and not from the appellants. In the Exts. 1 and 2 also, PW-9 clearly stated that the ganja was seized on being shown and produced by Havildar Uday Pratap Singh (PW-1). Therefore, it is clearly found that the said drugs were already recovered and taken into custody by the PW-1. What PW-1 did, on the basis of the authority letter issued by the DSP, was that he had seized the bags and the ganja, on being produced by PW-1. Hence, it can't be concluded that the seizure was made from the conscious possession of the appellants. 29. What PW-1 did, on the basis of the authority letter issued by the DSP, was that he had seized the bags and the ganja, on being produced by PW-1. Hence, it can't be concluded that the seizure was made from the conscious possession of the appellants. 29. Section 41 and 42 of the NDPS Act, provides the procedure for issuance of warrant and authorisation letter, authorising any officer subordinate to such authority to search and seize the narcotic drugs. Section 42 has provided the power of entry, search, seizure and arrest without warrant or authorisation. A reading of the provisions, prescribed by Sections 41,42 and 43, indicates that only an authorised person is entitled to make seizure/ search in respect of the suspected items under the NDPS Act. Hence, the PW-1 i.e. Havildar of Police was not the authorised person to recover the ganja from the accused. 30. From the evidence of PW-9 and the seizure list aforesaid, it is clearly found that the authorised officer did not seize the suspected items i.e. ganja directly from the possession of the appellants. Therefore, the said seizure, being the lawful, can't be basis for convicting the appellants. 31. As PW-1, who was the only witness supporting the seizure of the ganja, which item was already recovered and seized from PW No. 1, his evidence regarding seizure cannot be accepted without corroboration. In view of the above, I have no hesitation in holding that the prosecution failed to prove, beyond all reasonable doubt, that the authorising officer i.e. PW-9 had seized the ganja from the conscious possession of the appellants. That apart, as stated by PW-9 and as indicated in the seizure list (Ext. 2), only 13 Kg. of suspected ganja was found in possession of Sri Rajendra Prasad. Therefore, Sri Rajendra Prasad can't be held guilty of the offence under Section 20(b)(ii)(C). Hence, his conviction under Sections 20(b)(ii)(C). of the NDPS Act is not maintainable. 32. In view of what has been discussed above, I find sufficient merit in these appeals requiring interference with the impugned judgment and order. Accordingly, I am inclined to hold that the prosecution failed to prove the case against Sri Rajendra Prasad and Sri Sarvesh Kumar Pandey. The appeals are allowed. The impugned conviction and sentence are set aside. The appellants be acquitted and set at liberty forthwith, if not required in any other cases. 33. Accordingly, I am inclined to hold that the prosecution failed to prove the case against Sri Rajendra Prasad and Sri Sarvesh Kumar Pandey. The appeals are allowed. The impugned conviction and sentence are set aside. The appellants be acquitted and set at liberty forthwith, if not required in any other cases. 33. Return the LCRs.