Gauhati High Court
Page No.# 1/26 vs The State Of Assam And Anr on 20 November, 2024
Page No.# 1/26
GAHC010155782024
2024:GAU-AS:11287
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./248/2024
RAJKUMAR MANDAL
S/O LATE SURJYA KANTA MANDAL,
RESIDENT OF VILLAGE AGRONG, PS PANBARI, DIST CHIRANG, PO
ANANDA BAZAR ASSAM
VERSUS
1. THE STATE OF ASSAM AND ANR
REPRESENTED BY PP ASSAM
2:KUMUD CHANDRA TALUKDAR
SI OF POLICE
S/O LATE KANAK CH. TALUKDAR
PS BIJNI
DIST CHIRANG
ASSAM
Advocate for the Petitioner : MR. M BISWAS, LD. ADV.
Advocate for the Respondent : MR. D. DAS, LD. ADDL. PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 20.09.2024
Date of Judgment : 20.11.2024
JUDGMENT & ORDER (CAV)
Heard Mr. M. Biswas, learned counsel for the appellant. Also heard Mr. D.
Das, learned Additional Public Prosecutor for the State respondent No.1.
2. This appeal is filed under Section 415 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, against the Judgment dated 22.07.2024, passed by the learned
Special Judge, Bijni, Chirang, in Special (N) Case No. 19(B)/2022. The appellant
was convicted under Sections 20(b)(ii)(B) of the NDPS Act and sentenced to
undergo rigorous imprisonment for 3(three) years and 6 (six) months, as well as
to pay a fine of Rs. 20,000/- (Rupees twenty thousand) only. In default of
payment, the appellant is to undergo rigorous imprisonment for a further period
of 60 (sixty) days.
3. The prosecution story in brief is as follows:
3.1. On 24.09.2022, SI Sri Kumud Chandara Talukdar lodged an FIR with the
Officer-in-Charge of Bijni Police Station, alleging that on the same day at about
4 P.M, he received information from the SDPO, Bijni, that two persons would
travel from Panbari towards No.1 Agrang via Panbari road to sell Ganja using
two motorcycles. The SDPO, Bijni, directed him to conduct Naka checking at
No.1 Agrang near Ananda Bazar. Subsequently, he, along with five other police
personnel, went to Ananda Bazar and arrived there at about 5:30 PM. During
the check, they noticed two individuals approaching from the Bishnupur side on
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two motorcycles, each carrying plastic gunny bags. When they signaled for the
individuals to stop, one of them managed to flee, taking advantage of the
darkness, leaving behind his motorcycle and gunny bag. They apprehended
Rajkumar Mandal (the present appellant). In the presence of witnesses, two
motorcycles and two white gunny bags were recovered. One gunny bag
contained four plastic packets weighing about 19 kg 961 grams, while the other
contained four plastic packets totaling 20 kg 475 grams. The FIR was registered
as Bijni P.S. case No. 161/2022. In light of the FIR, the accused/appellant was
arrested on 25.09.2022 and has been in jail since then. The charge-sheet in this
case was submitted on 30.11.2022, and charges under Sections 20 (b) (ii)
(C)/29 were framed, putting the accused on trial. To support the case, the
prosecution examined 10 (ten) witnesses, including four independent witnesses
and five official witnesses. During the trial, the prosecution exhibited 13
(thirteen) documents. The accused/appellant denied the allegations in his
statement recorded under Section 313 Cr.P.C, pleading his innocence.
3.2. After hearing the arguments from both sides, the learned Trial Court
passed the impugned Judgment dated 22.07.2024 in connection with Special
(N) Case No. 19(B)/2022, convicting the appellant under Sections 20 (b) (ii) (B)
of the NDPS Act, sentencing him to rigorous imprisonment for 3 (three) years
and 6 (six) months, and imposing a fine of Rs. 20,000/- (twenty thousand), with
a default sentence of 60 (sixty) days of rigorous imprisonment.
4. Being highly aggrieved and dissatisfied with the impugned Judgment
passed by the learned Special Judge, Bijni, Chirang, in Special (N) Case No.
19(B)/2022, the present appellant has preferred this appeal with a prayer for
setting aside and quashing the impugned Judgment dated 22.07.2024.
5. Mr. Biswas, learned counsel for the appellant has submitted that the
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learned Trial Court passed the impugned Judgment mechanically, without proper
application of mind, making the impugned order liable to be set aside. He
submits that the learned court below erred in law and fact, warranting the
impugned judgment's overturning. Furthermore, he contended that the learned
Trial Court made a jurisprudential error in assessing the prosecution's evidence
and overlooked the mandatory provisions of the NDPS Act, making this a
suitable case for this Hon'ble Court to set aside the conviction and release the
appellant.
6. The prosecution failed to establish the chain of custody for the contraband
alleged to have been seized. According to the Search and Seizure List dated
24.09.2022 (Exhibit-5), the contraband was seized on 24.09.2022 at 8:15 P.M,
corroborated by P.W.1(present appellant). However, P.W.11 testified that the
contraband was received at the Forensic Science Laboratory on 26.09.2022 by a
special messenger. P.W.1 stated, "I handed over the seized articles at the police
station, and the in-charge of the Malkhana issued a receipt thereon". Exhibit-P8
is a notice and Exhibit-P 8(1) is the signature on the receipt; however, the said
Exhibit-P8 relates to a G.D Entry dated 25.09.2022, not 24.09.2022. Moreover,
Exhibit- P8 does not contain a time or date for its entry into the Malkhana. While
other documents were produced before the Magistrate on 25.09.2022 and
marked as "seen," Exhibit-P8 was not, suggesting it may have been prepared
later. Furthermore, Exhibit-P8 is claimed to have been signed by ASI Prunkrishna
Ray, who has not been examined, meaning Exhibit-P8 is not proved. There is
also no record as to who removed the contraband from the godown for
production before the Magistrate or when it was done. Additionally, there is no
mention of the seal affixed on the samples in the FSL report or by any
prosecution witness. The messenger who supposedly delivered the contraband
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to the FSL was not examined, nor is his name disclosed. Moreover, the
Malkhana register was not produced to prove that the contraband was kept in
the Malkhana or taken out for presentation before the Court or FSL. Thus, the
prosecution failed to prove the chain of custody, which is essential for a
conviction under the NDPS Act.
7. He further submitted no samples were produced before Court out of eight
duplicate samples which were drawn. Out of the three independent witnesses
whose signatures appear in the Seizure List, two were examined: (a) Bharat
Chandra Barman as P.W.2 and (b) Jyotis Kr Barman as P.W.4. P.W.2 stated in
cross-examination, "Exhibit-5 was not read over to me. I do not know what
articles were in the gunny bags. I put my signature as directed by police and do
not know anything about the case". P.W.4 said, "One day, around 8:00 P.M, I
went to Agrang Bridge to bring my uncle, Shri Bharat Barman. I saw police at
the scene and noticed two bikes. Police took my signature on Exhibit-4 (3). I
don't know why the police took my signature". None of the witness implicated
the appellant in the seizure of the contraband.
8. The prosecution also failed to comply with Section 57 of the NDPS Act,
which mandates that "whenever any person makes any arrest or seizure under
this Act, he shall, within forty-eight hours, report all particulars of such arrest or
seizure to his immediate official superior." No such report was sent in this case.
Additionally, the prosecution did not prove compliance with Section 42(2) of the
NDPS Act, which requires that "where an officer takes down any information in
writing under subsection (1) or records grounds for his belief under the proviso,
he shall within seventy-two hours send a copy to his immediate official
superior."
9. Moreover, there was a complete violation of Section 52A of the NDPS Act,
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as no certificate certifying the correctness of the inventory was produced. No
photographs were exhibited, nor was there a certificate confirming the
photographs' authenticity. The prosecution also failed to provide a list of
samples or any certificate certifying its correctness. Although P.W.10 stated that
samples were drawn before the SDJM, Bijni, no order from the Magistrate was
produced to show that the samples were indeed drawn in his presence.
Additionally, no staff from the court of the learned SDJM, Bijni was examined to
confirm that the samples were drawn before him.
10. Finally, there was non-compliance with Section 55 of the NDPS Act, which
states that "the officer-in-charge of the police station shall take charge of and
keep in safe custody all articles seized under this act, pending the orders of the
Magistrate." None of these requirements were met in this case, particularly
regarding the sealing of contraband by the Officer-in-Charge of the police
station.
11. Mr. Biswas, learned counsel for the appellant has submitted that the
prosecution could not prove any link with the samples received in the FSL and
the FSL report with the samples drawn in the present case. There is no link
evidence between the samples allegedly drawn in the instant case with that of
the samples received in the FSL of which Exhibit-13 (FSL Report) is claimed to
be the report, because none of the description of the samples mentioned in the
FSL Report had been deposed or stated by P.W. 10 (IO) who claimed to have
drawn the samples and sent to FSL.
12. He further submits that there has been total non-compliance with Sections
42(2) and 57 of the NDPS Act. Additionally, there is complete non-compliance
with Section 52A(2) of the NDPS Act, which is mandatorily required to be
followed. He also submitted that the Ganja/duplicate sample was not produced
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before the Court, which constitutes a serious flaw in the case under the NDPS
Act. Furthermore, he pointed out that the independent witnesses, as mentioned
above, did not support the prosecution's case. He also submitted that the
prosecution failed to prove the chain of custody of the sample.
13. In support of his submissions, he relies on the following decisions: -
i. Vijay Pandey vs. The State of Uttar Pradesh , reported in (2019) 18
SCC 215, wherein, the Hon'ble Apex Court held that the mere production of a
laboratory report stating that the sample was tested as narcotics is not
conclusive proof by itself. The sample must be produced before the Court, and it
must be shown that the sample seized and the sample sent to the FSL are
correlated and proven by the prosecution.
ii. The State of Gujarat vs. Ismail U. Haji Patel & Anr., reported in
(2003) 12 SCC 291, wherein, the Hon'ble Supreme Court expressed the view
that, in NDPS cases, the safe custody of the contraband must be proved under
Section 55 of the Act.
iii. The State of Rajasthan vs. Tara Singh , reported in (2011) 11 SCC
559, wherein, the Hon'ble Apex Court reiterated that safe custody must be
proved by the prosecution.
iv. The State of Rajasthan v. Gurmail Singh , reported in (2005) 3 SCC
59, wherein, the Hon'ble Supreme Court held that the prosecution must provide
link evidence to prove that the contraband seized was sent to the FSL for
examination. Furthermore, the samples and the seal should be sent to the
Excise Laboratory for comparison with the seal appearing on the sample.
v. Md. Diluwar Hussain & Anr. vs. The State of Assam (Judgment dated
11.08.2023, passed in Crl. A. No. 177/2022), wherein the Co-Ordinate Bench of
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this Court expressed the view that the failure to produce the Malkhana Register
in Court, and the failure of the Investigating Officer to confirm that the samples
were kept in safe custody, casts a shadow of doubt over the veracity of the case
of the prosecution and the investigation.
vi. Md. Manirut Jaman @ Moni vs. The State of Assam, passed in Crl.
A. No. 392/2023, dated 09.09.2024, wherein, in paragraph 52 of the said
judgment, this Court held that "It appears that though the PW-6 has deposed
that the contraband was kept in Police Station Malkhana, however, apart from
oral testimony nothing was produced to substantiate this evidence. No
malkhana register was produced to show that the samples which were drawn
from the contraband were kept in malkhana before it could be sent to the
Forensic Laboratory for its examination".
vii. Pardesi Ram vs. The State of M.P., reported in 2011 1 Crime (HC)
329, wherein, in paragraph 8 of the said judgment, it has been held that
".......There is no evidence led by the prosecution that the sealed samples and
the spicemen impression of the seal and seized articles were deposited in the
Malkhana of the police station for safe custody. Neither the Moharrir of the
Malkhana was examined nor Malkhana Register has been produced in evidence
by the prosecution in order to prove that after seizure, the articles of the ganja
tree along with sample were kept in the safe custody. There is no evidence as
to where seized ganja and sample thereof etc were kept, from the date of the
seizure till the date it is alleged to be received in the Forensic Science
Laboratory. The mandate of Section 55 of the Act obliges the Investigating
Officer to ensure the safe custody of the ganja to rule out every possibility of
tampering......."
viii. Ram Karan vs. The State of Himachal Pradesh , reported in (2007)
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SCC Online HP 65, the Hon'ble Himachal Pradesh High Court, in paragraph 11 of
the said judgment, it has been held that; "As noticed by us above, the totality of
the circumstances including the fact that the Malkhana register does not show
any entry on 08.06.2004 when the contraband was supposed to have been
deposited leaves no doubt in our mind that the appellant is not guilty of the
offences for which he was charged. Why and under what circumstances the
entries were not made nor the register exhibited in the Court, further
strengthens our conclusion that the appellant is innocent of the offences ......"
14. In regard to non-compliance with Sections 42(2) and 57 of the NDPS Act,
the learned counsel for the appellant relies on the following decisions;
i. Karnail Singh vs. The State of Haryana, reported in (2009) 8 SCC 539,
wherein, in paragraph 35(d) of the judgment, it was held that; " While total non-
compliance of requirements of sub-sections (1) and (2) of Section 42 is
impermissible, delayed compliance with satisfactory explanation about the delay
will be acceptable compliance of Section 42. To illustrate, if any delay may result
in the accused escaping or the goods or evidence being destroyed or removed,
not recording in writing the information received, before initiating action, or
non-sending a copy of such information to the official superior forthwith, may
not be treated as violation of Section 42. But if the information was received
when the police officer was in the police station with sufficient time to take
action, and if the police officer fails to record in writing the information
received, or fails to send a copy thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation of Section 42 of the Act........."
ii. Swapan Mazumdar vs. The State of Assam , reported in (2018) 4 GLT
448, wherein, it was observed that compliance with Section 57 of the NDPS Act
is mandatorily required for the prosecution to prove its case.
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15. Citing the above-mentioned judgments, the learned counsel for the
appellant, Mr. Biswas, submits that in the present case, the information
regarding the carrying of the alleged ganja was received by P.W.1 while he was
at the police station. This information was recorded in writing as Exhibit-1 (the
G.D. Entry No. 356, dated 24.09.2022 at 4:00 P.M.). Afterward, at 5:00 P.M., one
hour later, he left the police station and reached the place of interception at
5:30 P.M. Despite having sufficient time to send a report of the information to
his superior officer, he failed to do so. It is noted that the information was
provided by one SDPO, Bijni, Sekhar Jyoti Roy; however, he has not been
examined by the prosecution.
16. In regard to non-compliance with Section 52A of the NDPS Act, Mr.
Biswas, learned counsel for the appellant, has relied on the following decisions:
i. Union of India vs. Mohanlal and Anr., reported in (2016) 3 SCC 379,
and specifically relies on paragraph No.31.1 of the said judgment.
ii. Mangilal vs. The State of M.P., reported in 2023 SCC Online SC 862,
where reliance is placed on paragraphs 5, 6, and 8.
iii. Simarnjit Singh vs. The State of Punjab, reported in 2023 Livelaw
(SC) 570.
17. Citing these decisions, the learned counsel for the appellant, Mr. Biswas,
has submitted that in the case of Mangilal (supra), it was held in paragraph 8 of
the judgment that;
"Para-8; Before any proposed disposal/destruction mandate of Section 52A of the
NPDS Act requires to be duly complied with starting with an application to that effect.
A Court should be satisfied with such compliance while deciding the case. The onus is
entirely on the prosecution in a given case to satisfy the Court when such an issue
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arises for consideration. Production of seized material is a factor to establish seizure
followed by recovery. One has to remember that the provisions of the NDPS Act are
both stringent and rigorous and therefore the burden heavily lies on the prosecution.
Non-production of a physical evidence would lead to a negative inference within the
meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as
the Evidence Act). The procedure contemplated through the notification has an
element of fair play such as the deposit of the seal, numbering the containers in
seriatimwise and keeping them in lots preceded by compliance of the procedure for
drawing samples. The afore-stated principles of law are dealt with in extenso in Noor
Aga v. State of Punjab, (2008) 16 SCC 417:
"89. Guidelines issued should not only be substantially complied with, but also in a
case involving penal proceedings, vis-à-vis a departmental proceeding, rigours of such
guidelines may be insisted upon. Another important factor which must be borne in
mind is as to whether such directions have been issued in terms of the provisions of
the statute or not. When directions are issued by an authority having the legal sanction
granted therefor, it becomes obligatory on the part of the subordinate authorities to
comply therewith".
18. Further, Mr. Biswas submits that in the present case, there has been total
non-compliance with Section 52A of the NDPS Act. According to the evidence of
P.W. 10, it is clear that no application was made before the concerned
Magistrate for certifying the correctness of the inventory, although a certificate
appears at the bottom of Exhibit-9, on which the inventory was prepared. It is
also submitted that the signature of the Magistrate was not exhibited during the
trial. Additionally, he submits that while the prosecution claims that the samples
were drawn in the presence of the SDJM, Bijni, they have failed to prove this.
No application for the drawing of the samples has been exhibited, nor has the
Magistrate's order been presented before the Court. Moreover, there is no
evidence from the prosecution witnesses confirming that the Magistrate's
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signature was on the sample packets that were sent for examination.
19. Mr. Biswas, learned counsel for the appellant, has submitted that there is a
serious flaw in the case, as the prosecution failed to produce the seized ganja or
the duplicate sample before the Court during the trial. In support of his
submission, he relies on the following decisions:
i. Vijay Jain vs. The State of Madhya Pradesh, reported in (2013) 14
SCC 527; and
ii. Jitendra & Anr. vs. The State of Madhya Pradesh , reported in (2004)
10 SCC 562, wherein the Hon'ble Apex Court expressed the view that: " The
seized materials ought to have been produced during the trial and marked as
material objects. There is no explanation for this failure to produce them. Mere
oral evidence as to their features and the production of panchanama does not
discharge the heavy burden which lies on the prosecution."
iii. Noor Aga vs. The State of Punjab , reported in (2008) 16 SCC 417,
wherein, the Hon'ble Apex Court reiterated that it is the duty of the prosecution
to prove that the contraband was recovered from the possession of the accused.
20. During the course of the arguments, Mr. Biswas also raised the issue of
the evidence provided by the independent witnesses. He submitted that the two
independent witnesses, i.e. the P.W Nos. 2 and 3, examined by the prosecution,
do not support the case. Both witnesses were unaware of the contraband that
was alleged to have been recovered from the possession of the accused. Thus,
none of the independent witnesses implicated the appellant, and the
prosecution failed to prove the seizure of the contraband from the possession of
the accused/appellant.
21. In regard to the failure of the independent witnesses to support the
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prosecution's case, Mr. Biswas relies on the following decisions:
i. Krishan Chand vs. The State of Himachal Pradesh , reported in
(2018) 1 SCC 222; and
ii. Union of India vs. Leena Martin & Ors., reported in (2018) 4 SCC
490.
22. On the other hand, Mr. Das, learned Additional Public Prosecutor, has
submitted that the prosecution has proved the seizure through the seizure
witnesses, i.e., P.W. Nos. 1, 2 and 3. The inventory was also prepared and
certified by the Magistrate, as required under Section 52A of the NDPS Act. He
further submitted that since the SDPO, Bijni was present at the place of seizure,
compliance with Section 42(2) of the NDPS Act is not necessary, as the superior
officer was present along with the informant (P.W.1). Additionally, there is no
cross-examination evidence from the prosecution witnesses regarding the
custody of the contraband, and this issue was raised by the appellant only for
the first time before the Court.
23. He further submitted that, according to the prosecution's case, the
contraband was seized on 24.09.2022, and a G.D. entry was made. The
contraband was immediately handed over to the police station by the informant
and the seizing officer, and it was sent for FSL testing on 26.09.2022. Therefore,
the time gap cannot be seen as detrimental to the prosecution's case. The
search and seizure were conducted based on the information received, and
since the SDPO himself was part of the seizing team, it cannot be said that
there was total non-compliance with Sections 42(2), 52, and 57A of the NDPS
Act, as claimed by the accused/appellant.
24. Mr. Das, learned Additional Public Prosecutor has submitted that the
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learned Trial Court rightly passed the impugned Judgment dated 22.07.2024,
convicting the accused/appellant after proper appreciation of the evidence on
record. Therefore, no interference by this Court is necessary in the judgment
passed by the learned Special Judge, Bijni, in Special (N) Case No. 19(B)/2022.
25. After hearing the submissions made by the learned counsels for both
sides, it is found necessary to assess the evidence of the prosecution witnesses
(PWs) and the relevant documents produced during the trial.
26. P.W.1 is the informant and also the police officer who received the
information from the SDPO, Bijni. Accordingly, a G.D. entry was made (vide G.D.
entry No. 356) on 24.09.2022. Following the instructions of the SDPO, P.W.1
made arrangements for naka checking. With the authorization letter, he
proceeded for naka checking along with other staff members, apprehended the
accused/appellant, and recovered two motorcycles along with two gunny bags
containing suspected cannabis. Thereafter, after complying with all necessary
formalities, the contraband was seized in the presence of witnesses, along with
other articles. The co-accused, Nityananda Sarkar, had already fled the scene.
27. From the evidence of the PWs, it is seen that P.W.2, a local resident, who
was present at the time of the search and seizure. P.W.3, a police constable,
who accompanied the informant to the place of occurrence. P.W.4 is an
independent witness who was present at the location where the motorcycles
were seized. P.W.5, a home guard, was with the informant at the scene. P.W.6 is
a shopkeeper from whom an electronic weighing machine was seized. The
remaining PWs, namely P.Ws. 7 and 8, are hearsay witnesses who merely heard
about the incident involving the recovery of contraband from the possession of
the accused/appellant. P.W.10 is the investigating officer (IO) who investigated
the case, and P.W.11 is the FSL expert.
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28. Thus, P.W. Nos. 1, 10, and 11 are the vital witnesses for the prosecution,
while P.W. Nos. 2, 3, and 4 are the seizure witnesses. It is a fact that P.W.2 was
present at the place of occurrence and he claimed that the police seized the
articles in his presence, however, he could not say who owned the cannabis, nor
was he aware if the police had searched the body of the accused. It may not be
possible for P.W.2 to know the ownership of the motorcycles or the gunny bags,
but, it is clear from his evidence-in-chief that the police seized the articles in his
presence. He was not cross-examined on this point. However, in his cross-
examination, he stated that Exhibit-5 (the seizure list) was not read over to him.
29. P.W.3, another seizure witness, was also present at the time of the
recovery and accompanied P.W.1 (the informant) to the place of occurrence. In
his cross-examination, it is seen that no other persons were present at the
locality at the time of the seizure. He could not remember the registration
number of the motorcycles, which is quite possible, as it is not uncommon for a
person to forget such details after two years.
30. P.W.4 supports the prosecution's case to the extent that, at the time of the
incident, he arrived at the place of occurrence, saw the two motorcycles, and
signed the seizure list. However, he was unaware of the reason why the police
took his signature. There was no suggestion made to him that the motorcycles
were not seized in his presence.
31. Thus, the evidence of P.W Nos. 2, 3, and 4 cannot be outrightly
disbelieved. The fact remains that the prosecution seized the articles in the
presence of these witnesses, even though they may not have been aware of the
contents of the seizure list or the ownership of the motorcycles and contraband.
32. Turning to the evidence of P.W.1, who is a vital witness for the
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prosecution, it is seen that he made the G.D. entry after receiving information
from the SDPO. He also obtained an authorization letter from the SDPO before
proceeding to the place of occurrence for naka checking. P.W.1 exhibited the
office order regarding the issuance of the authorization letter (Exhibit-3), and he
also produced the seizure lists as Exhibits 4 and 5. Along with these, he
exhibited the materials as Exhibits 1, 2, and 3 which included photographs of
the accused/appellant with the recovered cannabis, as well as photographs of
the two motorcycles seized from the place of occurrence. After completing the
search and seizure, P.W.1 lodged the FIR at the police station, and the
Investigating Officer (IO) recorded his statement under Section 161 of the
Cr.P.C.
33. Thus, it cannot be said that there was a total non-compliance with Section
42(2) of the NDPS Act. The SDPO himself was present along with the seizure
team. Based on the information received from the SDPO, P.W.1 and his staff
carried out the naka checking. Additionally, P.W.1 not only made the G.D. entry
but also properly obtained the authorization letter from his superior, which was
exhibited as Exhibit-3. Furthermore, it is the prosecution's case that the
information was provided by the SDPO, who accompanied the seizing team. As
the SDPO is a superior officer authorized under Section 42(2) of the NDPS Act,
all required formalities were observed. Therefore, it cannot be held that there
was total non-compliance with Section 42(2) of the NDPS Act.
34. In Mohammad Hussain Farah vs. Union of India (2000) 1 SCC 329,
the Hon'ble Supreme Court held that "when a search is carried out by officers
authorized under Section 41, compliance with Section 42 of the NDPS Act is not
required". In the present case, P.W.1 has complied with all the required
formalities, including registering the G.D. entry, obtaining the authorization
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order, and producing the authorization letter (Exhibit-3).
35. Regarding the compliance with Section 55 of the NDPS Act, it is seen that
after the seizure, P.W.1 handed over the seized articles to the police station. The
in-charge of the Malkhana issued a receipt upon receiving the articles from
P.W.1. P.W.1 exhibited the receipt as Exhibit-8, and Exhibit-8(1) contains the
signature of P.W.1. However, learned counsel for the appellant, Mr. Biswas,
raised the issue that the Malkhana register and the entry by the Malkhana in-
charge were not produced or exhibited during the trial.
36. It is an admitted fact that the Malkhana register was not produced before
the learned Trial Court. However, the receipt issued by the Malkhana in-charge
was duly exhibited. This receipt contains a detailed description of the articles
handed over to the Malkhana in-charge, and the in-charge also signed the
receipt acknowledging the receipt of those articles.
37. Mr. Biswas, learned counsel for the appellant, also raised the issue
regarding the non-compliance of Section 52-A of the NDPS Act.
38. For ready reference, Section 52-A, Sub-sections 2, 3 & 4 of the NDPS Act
are extracted below:
"52A. Disposal of seized narcotic drugs and psychotropic substances. ...
(2) Where any narcotic drug or psychotropic substance has been seized and
forwarded to the officer-in-charge of the nearest police station or to the officer
empowered under section 53, the officer referred to in sub-section (1) shall
prepare an inventory of such narcotic drugs or psychotropic substances
containing such details relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying particulars of the narcotic
drugs or psychotropic substances or the packing in which they are packed,
Page No.# 18/26
country of origin and other particulars as the officer referred to in sub-section
(1) may consider relevant to the identity of the narcotic drugs or psychotropic
substances in any proceedings under this Act and make an application, to any
Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or (b) taking, in the
presence of such Magistrate, photographs of such drugs or substances and
certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the
presence of such Magistrate and certifying the correctness of any list of samples
so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as
soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of
1872) 20/24 or the Code of Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the inventory, the photographs of
narcotic drugs or psychotropic substances and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as primary evidence in respect
of such offence."
39. It is submitted by the learned counsel for the appellant, Mr. Biswas, that
although the inventory was prepared by the Investigating Officer (IO) and the
signature of the magistrate appears at the bottom of Exhibit-9 (the inventory),
the magistrate who signed the document was not examined, nor did the
prosecution produce any order for the drawal of the sample in the presence of
the learned SDJM, Bijni. However, from Exhibit P-9, it is evident that the
inventory was duly prepared by P.W.10, the IO, and the inventory was certified
by the learned SDJM, Bijni. The failure to examine the learned magistrate who
signed the document cannot, therefore, be a valid reason to disbelieve or
Page No.# 19/26
discard Exhibit-9, as the inventory was properly prepared and certified by the
magistrate in compliance with Section 52-A of the NDPS Act. It is also an
admitted fact that the magistrate generally passes the order for drawing the
sample in his or her presence, based on instructions from the learned Special
Judge. After the sample is drawn or the inventory is certified, the record is
generally handed over to the learned Session Judge.
40. In the present case, upon perusal of the LCR, it is seen that an order for
the drawing of samples was issued, and accordingly, on 25.09.2022, the learned
magistrate passed the order. The samples were drawn in his presence, and the
inventory was also prepared and certified by the concerned magistrate. Thus, it
is evident that there is compliance with Section 52-A of the NDPS Act, as
required under the law. The mere non-exhibition of the order or the non-
examination of the magistrate who signed the inventory cannot be the ground
to disbelieve or discard the entire procedure of preparing the inventory and
exhibiting the same.
41. Regarding non-compliance of Section 57 of the NDPS Act, Mr. Biswas,
learned counsel for the appellant, has relied on the decision of the co-ordinate
bench of this Court passed in Swapan Mazumdar (supra). Section 57 of the
NDPS Act, for ready reference is extracted hereinbelow:
"Section 57: Whenever any person makes any arrest or seizure, under this
Act, he shall, within forty-eight hours next after such arrest or seizure, make a
full report of all the particulars of such arrest or seizure to his immediate official
superior".
42. In the instant case, based on the evidence on record and other materials,
Page No.# 20/26
it is evident that after obtaining the authorization letter and in the presence of
the SDPO, P.W.1 conducted the search and seizure at the place of occurrence.
In this regard, he also made the GD entry on 24.09.2022. The search and
seizure process was completed around 10:30 P.M. on the same day, and on the
following day, within 48 hours, the matter was reported by P.W.1 to the police
station, and the FIR was lodged accordingly. Therefore, it cannot be held that
there was non-compliance with Section 57 of the NDPS Act. On the contrary, it
is clear that the seizing officer (P.W.1) reported the matter to his superior officer
within the prescribed 48-hour period and lodged the FIR.
43. Furthermore, it is an admitted fact that the entire search and seizure
operation was conducted based on the information received from the SDPO,
who was also present along with the team. In this regard, the Hon'ble Supreme
Court, in Md. Dilbagh Singh v. State of Punjab (Criminal Appeal No.
1096/2016), has held that;
"Qua the imputation of non-adherence of the requisites of Section 57 of the Act,
suffice it to note that both the Courts below, on an analytical appreciation of the evidence on
record have concurrently concluded that the Investigating Officer at the site, had after the
arrest of the accused persons and or seizure of the contraband forwarded the information
with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any
delay and that the related FIR with the necessary endorsements therein had reached the
Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming
or referred to by the learned counsel for the petitioner to either contradict or decimate this
finding based on records. In this view of the matter as well, the assertion of non-compliance
of Section 57 of the Act does not commend for acceptance. In our view, having regard to the
facts available, the requirements of Section 57 of the Act had been duly complied with as
well".
44. The issue raised by the learned counsel for the appellant is that the
Page No.# 21/26
prosecution has failed to establish the link between the contraband allegedly
seized from the possession of the accused/appellant, the samples drawn, and
the samples received at the FSL. Mr. Biswas, learned counsel for the appellant,
submitted that according to P.W.10 (the Investigating Officer), the samples and
seized articles were drawn in the presence of the SDJM, Bijni, and subsequently
sent to the FSL, Guwahati. However, the prosecution has not provided other
details, such as the police station case number, the manner in which the
samples were packed, the signature of any witness or the accused on the
sample packets, the mode of dispatch to the FSL, the date of dispatch, the
sealing of the samples, the facsimile used on the samples, the memo number, or
the forwarding letter accompanying the samples. These omissions, according to
the appellant's counsel, create doubts about the chain of custody and the
integrity of the samples sent for analysis.
45. He further submitted that there is no linked evidence connecting the
samples allegedly drawn in the instant case to those received at the FSL, as per
Exhibit-13. According to the learned counsel for the appellant, while P.W.1
testified that the seizure occurred on 24.09.2022 at 8:15 P.M., the Forensic
Expert (P.W.11) stated that the contraband was received by him at the FSL on
26.09.2022 via a special messenger. P.W.1, however, claims to have handed over
the seized articles to the police station, and the Malkhana in-charge issued a
receipt, which was exhibited as Exhibit-8. From Exhibit-8, it appears that the GD
entry was made on 25.09.2022, not 24.09.2022 as claimed by P.W.1.
Furthermore, Exhibit-8 does not mention the date or time when the articles
were entered into the Malkhana. In this context, Mr. Biswas, learned counsel for
the accused/appellant placed reliance on the following decisions:
Page No.# 22/26
i. Vijay Pandey vs. The State of Uttar Pradesh (2019) 18 SCC 215;
ii. The State of Gujarat vs. Ismail U. Haji Patel & Anr. (2003) 12 SCC
291;
iii. The State of Rajasthan vs. Tara Singh (2011) 11 SCC 559;
iv. The State of Rajasthan vs. Gurmail Singh (2005) 3 SCC 59;
v. Md. Diluwar Hussain & Anr. vs. The State of Assam (Judgment
dated 11.08.2023, passed in Crl. A. No. 177/2022);
vi. Md. Manirut Jaman @ Moni vs. The State of Assam (Judgment
dated 09.09.2024, passed in Crl. A. No. 392/2023);
vii.Pardesi Ram vs. The State of M.P. (2011) 1 Crimes (HC) 329; and
viii. Ram Karan vs. The State of Himachal Pradesh (2007)
SCC Online HP 65.
46. Citing the above decisions, Mr. Biswas, learned counsel for the appellant,
has submitted that the Hon'ble Supreme Court, along with various High Courts,
has consistently held that, it is the duty of the prosecution to establish that the
seized articles were kept in proper custody and in proper form. The prosecution
must also establish the link between the seized articles and the samples sent for
examination. Furthermore, it is essential for the prosecution to produce the
malkhana register to prove that the seized articles were securely stored in the
malkhana until they were forwarded to the FSL.
47. In the present case, from the evidence of P.W.1, it is seen that immediately
after the seizure of the contraband, he handed over the seized articles to the in-
charge of the malkhana at the police station. In acknowledgment, the malkhana
in-charge, ASI Purna Krishna Roy, issued a receipt, which was duly signed and
exhibited as Exhibit-8. The receipt, Exhibit-8, contains a detailed description of
Page No.# 23/26
the seized articles.
48. Though the prosecution did not produce the malkhana register during the
trial, the receipt issued by the malkhana in-charge serves as a record that all
items were properly described and acknowledged. Thus, it is clear that the
seized articles were immediately handed over to the malkhana for safe custody.
On 26.09.2022, the samples were received by the Forensic Science Laboratory
(FSL), and as per the testimony of P.W.11, the FSL expert, the requisition and
samples were marked with seals (A-1/C-1, A-2/D-1, A-3/E-1, A-4/F-1, B-1/G-1,
B-2/H-1, B-3/I-1, B-4/J-1), each containing 25 grams of the dry plant material.
The samples were received by the FSL within 48 hours of the seizure, and all
were found sealed and properly marked.
49. Although there was a one-day delay in sending the samples to the FSL
after the contraband was handed over to the malkhana, this delay cannot be
regarded as a significant flaw in the prosecution's case. The only discrepancy
lies in the date mentioned in the receipt (Exhibit-8), where the GD entry date is
incorrectly noted as 25.09.2022, whereas the correct date of the GD entry was
24.09.2022. However, this does not undermine the prosecution's case, as the
GD entry number remains consistent (No. 356). The discrepancy in the date of
the GD entry on the receipt does not render the entire prosecution case
unreliable, especially when the seized articles were immediately placed in the
malkhana, and the samples were sent to the FSL without inordinate delay.
50. In the case of Gurmail Singh (supra), cited by the learned counsel for the
appellant, there was a delay of 15 days in sending the seized articles to the FSL,
with no satisfactory evidence regarding their custody in the malkhana. Such
circumstances are not present in the current case.
Page No.# 24/26
51. In the present case, the one-day delay in sending the samples to the FSL
cannot be considered an inordinate delay. Furthermore, apart from the
discrepancy in the date on Exhibit-8, all other necessary particulars were
provided when the seized articles were handed over to the malkhana in-charge.
The description of the articles was duly recorded in the receipt issued by the
malkhana in-charge (Exhibit-8), ensuring that there was no ambiguity regarding
the items seized. Moreover, the seized articles were produced before the learned
Magistrate, and the inventory prepared in this regard was also duly certified by
the Magistrate. Therefore, despite the minor discrepancy regarding the date, the
prosecution has maintained a proper chain of custody and complied with the
relevant procedural requirements under the NDPS Act.
52. Mr. Biswas, learned counsel for the appellant, has raised the issue of
reverse burden under Sections 35 and 54 of the NDPS Act. He submitted that
the reverse burden comes into play only after the prosecution has established a
prima facie case against the accused/appellant. Mere registration of a case
under the NDPS Act does not automatically shift the burden of proof to the
accused from the very outset. The presumption of guilt under Section 35 and
Section 54, which requires the accused to explain possession of contraband
satisfactorily, is rebuttable. It does not absolve the prosecution from its
fundamental duty to prove the charge beyond a reasonable doubt.
53. In other words, the reverse burden provisions in Sections 35 and 54 are
not absolute; they are subject to rebuttal by the accused. To support this
argument, Mr. Biswas has relied on the following decisions:
i. Abdul Rashid Ibrahim Mansuri v. The State of Gujarat [(2000) 2
SCC 513];
Page No.# 25/26
ii. Gorakh Nath Prasad v. The State of Bihar [(2018) 2 SCC 305]; and
iii. Gangadhar @ Gangaram v. The State of Madhya Pradesh [(2020) 9
SCC 202].
54. As per Section 54 of the NDPS Act, a presumption is created that the
accused/appellant has committed an offence under the Act unless and until the
contrary is proved by the accused. This provision imposes a reverse burden of
proof upon the accused, meaning that once the prosecution establishes the
basic facts of the case, the accused is required to explain the possession of the
contraband or otherwise rebut the presumption of guilt. The Hon'ble Apex Court
in the case of Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305,
has expressed the view that, a reverse burden of proof lies upon the accused,
contrary to the normal rule of criminal jurisprudence for presumption of
innocence unless proved guilty. However, this rule shall not dispense with the
requirement of the prosecution to having first establish a prima facie case, only
whereafter the burden will shift to the accused .
55. In the present case, from the entire discussion made above, it is clear that
the prosecution has established a prima facie case against the
accused/appellant. The evidence shows that on the specified date, the accused
was found in possession of contraband (ganja) along with a co-accused. The
contraband was seized by the police after conducting a naka checking based on
prior information received. Following the seizure, the necessary formalities were
observed, and the samples of the contraband were drawn, sealed, and sent to
the Forensic Science Laboratory (FSL) for examination, which confirmed the
substance as cannabis/ganja.
Page No.# 26/26
56. Furthermore, it is evident that the prosecution properly followed the
prescribed procedures under the NDPS Act, including the registration of GD
entry, compliance with seizure formalities, and the forwarding of the contraband
to the FSL within a reasonable time. The prosecution was able to prove its case
beyond a reasonable doubt, establishing the accused's involvement in the
possession and trafficking of the seized contraband. On the other hand, the
accused/appellant failed to discharge his burden of proving any defence or
rebutting the prosecution's evidence. Despite being provided an opportunity to
cross-examine the prosecution witnesses and present any evidence in his
defence, the accused failed to produce any rebuttal evidence or raise any doubt
on the prosecution's case.
57. In light of these facts and after a thorough examination of the evidence on
record, this Court is of the opinion that the judgment passed by the learned
Special Judge, Bijni, Chirang in Special (N) Case No. 19(B)/2022 on 22.07.2024
is based on a proper appreciation of the law and the facts of the case. The
conviction of the accused/appellant is well-founded and does not warrant any
interference by this Court and accordingly the same stands dismissed.
58. With above observation, this criminal appeal stands disposed of.
59. Sent back the Case Record.
JUDGE
Comparing Assistant
