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(a) The complainant, Sub-Inspector of police Ram Prasad Halder during his examination-in-chief could not recollect the name of the 2nd independent witness available at the time of recovery.

(b) The two independent witnesses of search and seizure being the prosecution witness no.4 and 5 could not recollect the name of the accused and also could not identify the appellant in Court.

(c) The Expert (PW10) who examined the FICN and produced his report being Ext.27 during trial, in his deposition was completely silent regarding what was examined by him, the nature and extent of examination and the process followed in respect thereof. The opinion of the Expert is cryptic, sketchy and as such unreliable.

Learned advocate drew the attention of this Court to Jubeda Chitrakar -

Vs. - State of West Bengal reported in 2019 SCC OnLine Cal 8924 and relied upon paragraph 15 which is set out as follows:

"15. Adverting to the material evidence on record and the findings of the court below, it can be seen that the raid, interception and recovery were on the basis of secret information, the reception of which, and the modality of the raid and recovery have been noticed by us. 500 pieces of 100 rupees denomination FICN, 7 pieces of 1000 rupees denomination FICN and 9 pieces of 500 rupees denomination FICN wrapped in a newspaper and kept in a polly bag were recovered from Mokaram Mondal (one of the accused). Sunil Pramanick (one of the appellants) was also searched and 27 pieces of 500 rupees denomination FICN were recovered. Jubeda Chitrakar (one of the appellants) whose house was also raided led to recovery of 20 pieces of 500 rupees denomination FICN and 5 pieces of 1000 rupees denomination FICN. Thereupon, Jubeda was arrested. Again search and seizure was conducted leading to recovery of FICN from different other accused persons who are not amongst the appellants. They were also convicted. The appellants did not offer any explanation when questioned under Section 313 Cr.P.C. regarding the possession of FICN. Nor was any evidence adduced in defense to explain the possession of FICN. Section 106 of the Evidence Act enjoins that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. In terms of Section 106 of the Evidence Act the burden of proof of facts within the knowledge of the appellants regarding the nature of possession of FICN was not discharged. Hence, the possession of such large quantity of FICN in concealed manner is not dormant possession but active transportation amounting to trafficking. It amounts to commission of offences punishable under Section 489B of the IPC. The possession of FICN of such quantity is trafficking, and, therefore, falling under the incriminating activity which made the accused/appellants offenders punishable under Section 489B as well, apart from the liability for committing offences punishable under Section 489C. For the aforesaid reasons the conviction of the appellants under Sections 489B as well as 489C stands. We approve the findings of the court below on the issue that the accused persons are liable to be convicted under Sections 489B and 489C of the IPC. Accordingly, we affirm the finding of guilt and the conviction of the appellants by the court below."

The manner of application of the provisions of Section 489B and Section 489C of the Indian Penal Code was referred in Md. Tousif -Vs.- State of West Bengal in CRA 163/2019 and attention was drawn to the following passage:

"In other words, if the prosecution is able to prove search, seizure, raid and recovery of FICN by adducing credible evidence in support of the prosecution case, the judicial precedents to the fact that illegal possession of huge quantity of FICN does not only attract Section 489C of the Indian Penal Code but the offence under Section 489B is also held to be proved.....

2) If quantity/volume of FICN is a ground of 'presumption', what would be the cut off number for presuming that the 'possession' was for the purpose of 'otherwise traffics in'?

3) When substantial number of FICN are recovered from the possession of a security personnel associated with the Government i.e. Police, CISF, Defence Forces etc. can it be presumed that the ingredients of the term 'otherwise traffics in' used in Section 489B of the Indian Penal Code is automatically attracted?