The single judge bench of the Tripura High Court held that non-production of the seized material would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act.
Brief facts
The factual matrix of the case is that the sub-inspector, inspector, and officer in charge of the police station received secret information that the appellant had stored a huge quantity of brown sugar (heroin) in his house. Then, the raid was conducted in the house of the Appellant, and during the search a plastic pouch containing dry powder of yellow color suspected to be brown sugar concealed in the heap of fire-woods, when the preliminary narcotics test was conducted the same was found to be heroin. Furthermore, the FIR was registered under Section 21(b)/25 of the NDPS Act, 1985 against the appellant. The trial court convicted the Appellant. Aggrieved by this, the present appeal is filed.
Contentions of the Appellant
The Appellant contended that Section 42 of the NDPS Act, 1985 is not complied with and no written permission from the higher authority was taken. It was furthermore contended that no document was recovered to prove that the Appellant is the owner of the house. Also, no sample was drawn before the judicial magistrate.
The Appellant relied upon the judgments titled Mohan Lal Vs. State of Punjab, Noor Aga vs. State of Punjab, Kuldeep vs. State of Punjab, Darshan Singh vs. State of Haryana, State of Maharastra (Through Yerwada Police Station Pune) Vs. Sou. Rita Ankush Indrekar, and the State of J&K vs. Verinder Singh & Anr.
Contentions of the State
The State contended that the case was covered under Section 41 of the NDPS Act, and, therefore, the requirements as mandated under Section 42 were not required to be complied with. It was furthermore contended that the petition for the drawing of samples, certification of the list of samples, inventory, and taking of photographs were submitted before the Court. Also, the envelope containing the sample was there in the trial court record.
The state relied upon the judgments titled State of Rajasthan Vs. Sahi Ram, Kallu Khan Vs. State Of Rajasthan, and Sekhar Suman Verma vs. Superintendent Of Narcotics Control Bureau & Another.
Observations of the court
The Hon’ble Court observed that there is no physical evidence of the materials that were taken. It is now highly questionable that samples were collected when the magistrate was present. Consequently, even in the event that it is established that the prosecution seized alleged contraband from the appellant's home, they have not shown any supporting documentation for this claim. Additionally, there are differences in the quantity of seized items confiscated between the seizure list and the magistrate's order.
The court relied upon the judgments titled Mangilal Versus State of Madhya Pradesh, and Noor Aga v. State of Punjab.
It was furthermore observed that the non-production of the seized material creates a negative inference within the meaning of Section 114(g) of the Evidence Act.
Based on these considerations, the court was of the opinion that the benefit goes in favor of the Appellant. The court set aside the impugned Judgment of conviction and sentence.
The decision of the court
With the above direction, the court allowed the appeal.
Case Title: Sri Suresh Chakma V. The State of Tripura
Coram: Hon’ble Mr. Justice Datta Purkayastha
Case No.: Crl. A(J) No.11 of 2023
Advocate for the Appellant: Mr. Debajit Biswas, Advocate.
Advocate for the State: Mr. Raju Datta, P.P.
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