JUDGMENT & ORDER : 1. This appeal, under Section 374(2) of the Cr.P.C., is directed against the judgment and order, dated 24-08-2016, passed by learned Special Judge, Nagaon, in Sessions (NDPS) Case No. 59(N) of 2005, convicting the accused-appellant, under Sections 20(ii)(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default, to suffer simple imprisonment for 1 year. 2. I have heard Mr. AI Uddin, learned counsel appearing on behalf of accused-appellant and Mr. SC Keyal, learned Assistant Solicitor General of India. 3. The fact of the case is that on 04-09-2003, receiving a secret information regarding illegal possession and trafficking of Ganja, the Intelligence Officer, Directorate of Revenue Intelligence, Guwahati (herein after referred to as DRI) with the assistance of Guwahati Customs Division & Nagaon Police raided the house of one Md. Abdul Kadir Majumdar and recovered 301 packages of Manipuri Ganja wrapped in blue and black plastic sheets, weighing 5581.5 kgs. An electoral document was also seized from the house which stood in the name of the accused appellant. The said Ganja was seized in presence of witnesses. Inventory was also prepared. The sample, as prescribed, was sent to Forensic Science Laboratory, Guwahati for examination. The sample gave positive test for Ganja on examination by Forensic Science Laboratory. Then the case was forwarded to the Chief Judicial Magistrate, Nagaon. As the accused-appellant absconded during the raid of his house, summon was affixed on the wall of his house, and on his failure to respond to the summon, Non-Bailable Warrant of Arrest was issued against him. On 07-09-2003, the accused appellant was arrested, and during interrogation, he disclosed the name of co-accused Ajnoor Choudhury, Baharuddin and Rafique Choudhury, who were involved with loading, unloading, storage, concealment and trafficking of the said Ganja. 4. Accordingly, Final Report was submitted against them in the Court on 05-11-2003 for the offence punishable under Sections 8/20/22/23/27A/60/61 of the NDPS Act. 5. A formal charge was framed against the accused appellant was framed under Section 20(b)(ii)(C) and Section 25 of the NDPS Act. The charge was read over and explained to the accused appellant, to which he pleaded not guilty and claimed to be tried. 6. 5. A formal charge was framed against the accused appellant was framed under Section 20(b)(ii)(C) and Section 25 of the NDPS Act. The charge was read over and explained to the accused appellant, to which he pleaded not guilty and claimed to be tried. 6. In this case, prosecution led evidence of six witnesses to substantiate the charge against the accused persons and the defence led no evidence. The defence plea is of total denial. 7. In his statement, recorded under Section 313 Cr.P.C., the accused-appellant not only denied the accusations levelled against him but also denied that the Ganja seized in this case was seized from his house. 8. The learned trial Court found and held the accused-appellant guilty for the offence under Section 20(ii)(c) of the NDPS Act and found evidence insufficient against him to prove the offence under Section 25 of the NDPS Act. Accordingly, the learned Trial Court convicted the accused appellant and sentenced him as indicated above. 9. Now, this, Court is to see whether the accused appellant, Md. Abdul Kadir Majumdar was found illegal possession of 5581 kgs of Ganja on 04-09-2003 in contravention of the provision of NDPS Act, punishable under Section 20(b)(ii)(C). 10. The learned counsel for defence, during his argument before this Court, argued only one issue. This is in respect of possession of the seized Ganja by him and recovery of the same. The learned counsel for the accused appellant has strenuously argued that he was not in possession of the seized Ganja and that it was not recovered from his house, as alleged. He has also submitted that the electoral roll, bearing the name of the accused appellant, recovered from the house from where the seized Ganja was recovered, cannot be the basis for arriving at a conclusion that it was his house from where the Ganja, involved in this case, was seized. During the course of argument learned counsel for accused appellant has specifically submitted that this is the only point, which he was pressing before the Court. 11. In view of the above, this Court has decided to confine its discussion on the above argument, raised by the learned counsel for the accused appellant, for decision of the appeal. 12. I have gone through the records of the trial Court and also perused the impugned judgment. 13. 11. In view of the above, this Court has decided to confine its discussion on the above argument, raised by the learned counsel for the accused appellant, for decision of the appeal. 12. I have gone through the records of the trial Court and also perused the impugned judgment. 13. In order to appreciate the submissions, let me first visit the law with respect to possession for the offences under the NDPS Act. 14. In Mohan Lal v. State of Rajasthan, reported in (2015) 6 SCC 222 , the Hon’ble Supreme Court observed that when one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”. Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word “possession”. The classical theory of the English law on the term “possession” is fundamentally dominated by Savignyian “corpus” and “animus” doctrine. Distinction has also been made in “possession in fact” and “possession in law” and sometimes between “corporeal possession” and “possession of right” which is called “incorporeal possession”. Thus, there is a degree of flexibility in the use of the said term and that is why the word “possession” can be usefully defined and understood with reference to the contextual purpose for the said expression. The word “possession” may have one meaning in one connection and another meaning in another. 15. The Hon’ble Supreme Court further observed in Mohan Lal (supra), that over the years, it has been seen that courts have refrained from adopting a doctrinaire approach towards defining possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word “possession” in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object. 16. Having pointed out the relevant legal position with respect to possession, when I turn to the evidence tendered on record it is found that one of the principal prosecution witness Mr. 16. Having pointed out the relevant legal position with respect to possession, when I turn to the evidence tendered on record it is found that one of the principal prosecution witness Mr. T.K. Dutta, Revenue Intelligence Officer, was killed after the lodgement of complaint against the accused appellant and others and as such his evidence could not be recorded during trial. 17. PW1, Satyendra Narayan Choudhury, a resident of Chandmari, Guwahati, deposed that about 4/5 years ago, while he was at Nagaon, some officials of Directorate of Revenue Intelligence asked him to accompany them to a nearby place. He accordingly accompanied the Officials to a village where the officials conducted a search in a house and recovered some packets containing ganja. In his cross examination he admitted that he does not know from whose house the ganja was recovered. 18. Coming to the evidence of PW2, Gautam Das, a Senior Intelligence Officer, DRI, deposed that he along with T.K. Dutta (since deceased), Mohendra Dutta, Senior Intelligence Officer, DRI, Sudhir Das, Senior Intelligence Officer, DRI, Uma Shankar Kashyap, Intelligence Officer, Arun Kumar Baruah, Intelligence Officer, along with Officers of Assam Police searched the residence of Abdul Kadir Mazumder, the accused appellant herein. At the time of search, the accused appellant was not present in his house and they learnt that the accused appellant had just left the house along with his family. 19. In cross examination PW2 deposed that he does not know the names of female members of the neighbourhood, who had identified the house of the accused appellant. PW 2 also stated that the Search team had not taken the help of local Gaonburah to identify the residence. 20. The evidence of PW3, Uma Shankar Kashyap, PW4, Mohendra Dutta and PW5, Subir Das are in the line of the evidence tendered by PW2 that the seized cannabis was recovered from the house of convict appellant. The principal defence taken in cross examination is that house is not of the accused appellant and that his house was not searched and the contraband was not recovered from his house. 21. Now, it would be necessary to place on record the entire chronology of events which led to the conviction of the accused appellant. 22. The complaint petition states that acting on specific information raid was conducted at Nagayapam village. 21. Now, it would be necessary to place on record the entire chronology of events which led to the conviction of the accused appellant. 22. The complaint petition states that acting on specific information raid was conducted at Nagayapam village. It may be mentioned here that team of Revenue Intelligence Officers had visited the house searched, coming directly from Guwahati. In this regard Section 41 (2) of the NDPS Act provides as follows; 41 (2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer 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 in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. 23. I have put emphasis on the expression “has reason to believe from personal knowledge or information given by any person and taken in writing that any person” as appearing in Section 41(2) of the NDPS Act. 23. I have put emphasis on the expression “has reason to believe from personal knowledge or information given by any person and taken in writing that any person” as appearing in Section 41(2) of the NDPS Act. Thus, the officials mentioned in Section 41 (2) have been empowered to act even on personal information that if a person is involved in the commission of offence under the NDPS Act, the place where the contraband has been kept can be searched and the person may be arrested. It may be mentioned that Section 41(2) requires such authorisation only if the officer of gazetted rank, as specified in the sub-section, wants any other officer subordinate to him to conduct the search. If the gazetted officer himself is to conduct the search or raid it is unnecessary for him to get any other authorisation from another gazetted officer. The other important aspect of Section 41 (2) is that the record prepared by the Officer, acting under Section 41(2), on getting information regarding the contrabands or the person carrying contraband need not be produced in court unless such a record has been called for at the instance of the accused. (Reference: T. Thomson v. State of Kerala, reported in (2002) 9 SCC 618 ) 24. It is thus clear from the legal proposition with respect to Section 41 (2) that on getting an information regarding presence of contraband in a particular place the officials mentioned in Section 41(2), if they have reasons to believe that the information is correct may straightaway proceed to the place and to arrest any person or search a building, conveyance or place whether by day or by night. 25. In the present case, the complaint petition specifically mentions that on getting specific information that one Abdul Kadir Mazumder is dealing in contraband, the team of Revenue Intelligence Officials raided his residence. Such an exercise is within the ambit of powers conferred by Section 41(2) of the NDPS Act and unless the defence calls for the records of information there is no statutory requirement that such records be produced in Court. 26. In the present case, the defence never questioned on the content of the information on the strength of which raid was conducted. No step was taken to call for any such record. Infact, the defence did not even dispute the recovery of cannabis from the house in question. 26. In the present case, the defence never questioned on the content of the information on the strength of which raid was conducted. No step was taken to call for any such record. Infact, the defence did not even dispute the recovery of cannabis from the house in question. 27. In view of the above what is established is that the information received by the DRI regarding storage of cannabis at Nagayapam village was authentic. If the information was authentic with respect to presence of cannabis it would amount to putting onerous burden upon the prosecution to adduce evidence as to who identified the house, for it is not the case of the defence that no cannabis was found in the house. The very nature of power vested by Section 41 (2) requires an element of stealth hence the prosecution in a case of this nature cannot be expected to bring independent witnesses to show who identified the house of the convict appellant. Reliance in this regard may be placed on the case of Kashmiri Lal v. State of Haryana, reported in (2013) 6 SCC 595 , wherein the Hon’ble Supreme Court held that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence. In the instant case, the search was conducted by DRI and not by police. But in my considered view, the position of the DRI Officials as Investigators in this case is same with that of police. 28. Under these circumstances reliance has to be placed only on the oral testimony of the prosecution witnesses. If the evidence of the prosecution witnesses suffers from fatal infirmities the accused appellant will be entitled to an acquittal. 29. 28. Under these circumstances reliance has to be placed only on the oral testimony of the prosecution witnesses. If the evidence of the prosecution witnesses suffers from fatal infirmities the accused appellant will be entitled to an acquittal. 29. It is the contention of the learned Counsel for the accused appellant that prosecution evidence has not been able to prove that the house belonged to the accused appellant and hence, the question of possession of seized cannabis on the part of the accused appellant does not arise. The learned Counsel for the accused appellant has relied upon the cases of Avtar Singh vs State of Punjab, reported in AIR 2002 SC 3343 , Om Prakash @ Baba vs State of Rajasthan, reported in (2009) 10 SCC 632 , and the case of Noor Aga vs State of Punjab reported in (2008) 16 SCC 417 . 30. The case of Avtar Singh (supra), dealt with the issue of possession under the NDPS Act and when can an accused be said to be in possession of contrabands. In the case of Om Prakash @ Baba (supra), a large number of persons were occupants of the residence from where the contrabands were seized hence the Hon’ble Supreme Court held that in such situations it is the for the prosecution to prove that among the large number of occupants the accused was the exclusive possessor. On facts, none of these cases are applicable in the facts of the present case. So far as the question of theory of possession is concerned the same has been expressly dealt with hereinbefore while referring to the case of Mohan Lal (supra). 31. Now, from the trend of the cross examination of the prosecution witnesses as well as from the arguments made in this Court it is apparent that defence neither disputes the fact of recovery of commercial quantity of cannabis, nor does the defence disputes that the seized commercial quantity of cannabis was found in sealed packets in a house situated at village Nagayapam, Jamunamukh. It is also an admitted position that accused is also a resident of village Nagayapam, Jamunamukh. 32. The chronology of the events can be stated as thus; (a). The team of DRI receives a direct input that one Abdul Kadir Mauzmder is dealing in contraband at Nagaypam, Jamunamukh and this fact is not in dispute. (b). It is also an admitted position that accused is also a resident of village Nagayapam, Jamunamukh. 32. The chronology of the events can be stated as thus; (a). The team of DRI receives a direct input that one Abdul Kadir Mauzmder is dealing in contraband at Nagaypam, Jamunamukh and this fact is not in dispute. (b). That the team reaches Nagaypam, Jamunamukh and recovers cannabis from a residence. This fact is also not in dispute. (c). That the oral evidence of prosecution witnesses establishes that after making inquiry as to the whereabouts of Abdul KadirMazumder they raided his house. This evidence has not been impeached so as to render the testimonies unreliable. (d). That the accused is also a resident of Nagaypam, Jamunamukh. 33. It may well be mentioned here that in the case of Noor Aga (supra), the Hon’ble Supreme Court held that Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused appellant to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused appellant on the prosecution is ‘beyond all reasonable doubt’ but it is ‘preponderance of probability’ on the accused appellant. If the prosecution fails 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. 34. As to what would be reasonable doubt has been laconically laid down in the case of K. Gopal Reddy v. State of A.P., reported in (1979) 1 SCC 355 , wherein the Hon’ble Supreme Court had held that it stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused appellant to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused appellant must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. “A reasonable doubt”, it has been remarked, “does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason. 35. The circumstances, as stated hereinbefore, when taken together in its entirety, leaves no manner of doubt that the house from where the seized cannabis was recovered belonged to the accused appellant. The plea taken by the appellant that his house was not searched does not create the possibility of an alternate doubt strong enough to say the alternate view in favour of the accused appellant is as nearly reasonably probable as that against him. Thus, the plea that instead of the house of the accused appellant some other house was searched appears to be a plea without any substance, for if the accused appellant is a resident of the same village he could have easily adduced evidence to probabilise his plea. Thus, the plea that instead of the house of the accused appellant some other house was searched appears to be a plea without any substance, for if the accused appellant is a resident of the same village he could have easily adduced evidence to probabilise his plea. A mere suggestion to prosecution witnesses that the house from where the seized cannabis was recovered does not belong to him cannot be accepted to be a sufficient compliance of probabilising the plea of lack of possession when it was within the reach and means of the appellant to show that even though he is a resident of Nagaypam, Jamunamukh, his house is situated at a different location in that village and is different from the one in which the search was conducted and the contraband was recovered. 36. In view of the discussions, made hereinbefore, no interference with the judgment and order of the learned Trial Court is called for. 37. Accordingly, the appeal is dismissed. 38. Send down the LCR along with a copy of this judgment.