Gauhati High Court
Crl.A./138/2023 on 18 February, 2025
Author: Suman Shyam
Bench: Suman Shyam
Page 1 of 52
GAHC010066502023
DB 2025:GAU-AS:1708
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.A. No. 138/2023
Md. Habil Ali,
S/O Late Eddrish Ali,
Resident of Village-Sonarigaon,
P.S. Dhing, District-Nagaon, Assam.
.....Appellant
-Versus-
The State of Assam
Represented by PP, Assam.
......Respondent
For Appellant : Mr. Y. S. Mannan, Advocate.
For Respondent : Ms. S. Jahan, Public Prosecutor.
Date of hearing : 19.12.2024
Date of Judgment : 18.02.2025
BEFORE
HON'BLE MR. JUSTICE SUMAN SHYAM
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
Crl.A. No. 138/2023 Page 1
JUDGMENT AND ORDER (CAV)
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. Y. S. Mannan, the learned counsel for the
appellant. Also heard Ms. S. Jahan, the learned Additional Public
Prosecutor appearing for the State of Assam.
2. This criminal appeal has been filed by the appellant, Md.
Habil Ali, under Section 374(2) of the Code of Criminal
Procedure, 1973, challenging the judgment and order dated
17.12.2022 passed by the learned Additional Sessions Judge
No. 2, Nagaon, Assam, in Special NDPS Case No. 17/2021. The
appellant was convicted under Section 18(c) of the NDPS Act
and sentenced to rigorous imprisonment for 10 years, along
with a fine of ₹ 1,00,000 (Rupees One Lakh). In default of
payment, he was ordered to undergo simple imprisonment for
six months. Additionally, the appellant was convicted under
Section 20(b)(ii)(C) of the NDPS Act, 1985, and sentenced to
rigorous imprisonment for 20 years, with a fine of ₹ 1,00,000
(Rupees One Lakh), and, in default, simple imprisonment for six
months. He was also convicted under Section 21(b) of the NDPS
Act, 1985, and sentenced to rigorous imprisonment for 20
years, along with a fine of ₹ 1,00,000 (Rupees One Lakh), and,
in default, further simple imprisonment for six months.
Crl.A. No. 138/2023 Page 2
3. The facts relevant for the adjudication of this appeal, in
brief, are as follows: -
i. On 06.12.2020, the Officer-In-Charge of Jajori Police
Station, Sri Pulak Kumar, SI of Police, lodged an FIR
before the Officer-In-Charge of Dhing Police Station.
The FIR alleged that on 05.12.2020, reliable
information was received from secret sources
indicating that Habil Ali (the appellant) of Sonarigaon
village was engaged in the illegal trade of narcotic
drugs and had planned to transport a large quantity
of such drugs from Manipur to Sonarigaon.
ii. It was also stated in the said FIR that accordingly, a
general diary entry was made at Jajori Police Station,
i.e., the GD Entry No. 76, dated 05.12.2020 and Sri
Mohan Lal Meena, IPS the Additional SP
(headquarter), Nagaon was informed about the
receipt of information through secret sources. It was
also informed by the secret sources that along with
Habil Ali, his accomplice, namely, Md. Mofidul Haque
and Md. Batu Alam, will receive the consignment of
the drugs at an unknown place at National Highway
No. 37 near Nagaon and the said consignment would
be brought by using Mahindra XUV vehicle bearing
Registration No. AS-02-AD-6273 and a Maruti Swift
Crl.A. No. 138/2023 Page 3
vehicle bearing Registration No. AS-02-Z-8119. It was
also informed that before arrival of the said vehicles,
one blue colour Pulsar bike bearing Registration No.
AS-02-G-4125 would do the recce to check if there is
any police Naka on the way.
iii. Based on the above information, a raid was planned
in the morning of 06.12.2020 and the Additional SP
(Headquarter), Nagaon, namely, Sri Mohan Lal
Meena, along with Sri Moon Basumatary, SI of police,
left Nagaon town and reached Jajori Police Station.
They formed a police team in four vehicles, two
reliable independent witnesses, namely, Jahidur
Rahman and Manoj Kumar Mahanta were also
requested to witness the search and seizure
procedure and remain present at the time of the raid.
It is further stated in the FIR when the police team
reached near the place of occurrence (about three
kilometers away) and waited there for about an hour,
they got another information through reliable source
that the accused persons have arrived at the house
of the appellant Habil Ali with the illegal drugs.
Thereafter, the police party went to the house of
appellant Habil Ali, at Sonarigaon, at around 12:20
PM. The main gate of the boundary wall was partially
Crl.A. No. 138/2023 Page 4
closed which was opened by the informant and the
police party entered into the premises of the
appellant and knocked the door of the house. The
appellant Habil Ali opened the door. At that time, the
informant identified himself and offered to be
searched before searching the house of the
appellant. As the appellant did not ask the informant
to be searched, the search of the house was
conducted.
iv. During the search of the appellant's house, a total of
157 soap boxes containing approximately 2,076
grams of suspected heroin were found. Additionally,
eight packets wrapped in black polythene bags
containing suspected cannabis, weighing about
101.48 kilograms, were recovered. A semi-liquid
substance suspected to be opium, weighing
approximately 977 grams, was also recovered. Along
with the contraband, cash amounting to ₹ 10,70,690
(Rupees Ten Lakhs Seventy Thousand Six Hundred
and Ninety only), three vehicles, and other materials
linked to the illegal contraband business were seized.
v. The appellant, Habil Ali, along with his two
accomplices, Md. Mofidul Haque and Md. Batu Alam,
was apprehended during the search. In addition to
Crl.A. No. 138/2023 Page 5
the above-named accused persons, two daughters of
Habil Ali, namely, Sumsum Sultana (aged 13 years)
and Hasina Sultana (aged 8 years), as well as a
woman named Joshnara Begum (aged 30 years),
were also found in the appellant's house.
vi. On receipt of the aforesaid FIR, the Officer-In-Charge
of Dhing Police Station registered the Dhing P.S. Case
No. 505/2020 under Section
17(c)/18(c)/20(b)(ii)(C)/21(c)/25/27(A)/29(1) of the
NDPS Act, 1985 and initiated the investigation.
Ultimately, on completion of the investigation, the
charge-sheet was laid against the appellant and his
two accomplices, namely, Md. Mofidul Haque and Md.
Batu Alam under Section
17(c)/18(c)/20(b)(ii)(C)/21(c)/25/27A/29(1) of the
NDPS Act, 1985.
vii. On 08.04.2021, the charges under Section
17(c)/18(c)/20(b)(ii)(C)/21(c)/27A/29(1) of the NDPS
Act, 1985 were framed against the appellant and his
two accomplices. When said charges were read over
and explained to them, they pleaded not guilty and
claimed to be tried.
Crl.A. No. 138/2023 Page 6
viii. The appellant, along with two other accused persons
faced the trial remaining in judicial custody. To bring
home the charges against the accused persons, the
prosecution side examined 09 prosecution witnesses
and exhibited 22 documents and 09 material exhibits.
ix. The appellant was examined under Section 313 of
the Code of Criminal Procedure, 1973 during which
he pleaded his innocence and denied the truthfulness
of the testimony of the prosecution witnesses.
However, he did not adduce any evidence in his
defence.
x. Ultimately, by the judgment which is impugned in
this appeal, the appellant was convicted and
sentenced in the manner as already described in
paragraph No. 2 herein before. The appellant Habil
Ali was, however, acquitted of charges under Section
17(c)/27A/29 of the NDPS Act, 1985. The other two
accused persons were acquitted of all the charges.
4. Before considering the rival submissions made by the
learned counsel for both the sides, let us go through the
evidence which is available on record.
5. The PW-1, Jahidur Rahman, has deposed that on the day
of occurrence the Officer-In-Charge of Jajori Police Station,
Crl.A. No. 138/2023 Page 7
namely, Pulak Kumar, called him over mobile phone and asked
him to come to the police station. He thereafter, immediately
went to the police station where he was asked to call another
member of the village defence party. Accordingly, the PW-1
called one Manoj Kumar Mahanta to the police station. He has
further deposed that at the police station he was informed that
police were going to conduct a raid and he was requested to
accompany them. He also deposed that the Additional
Superintendent of Police, Sri Mohan Lal Meena, also joined the
police party. Thereafter, they proceeded towards Dhing,
Bechamari where they waited for one hour and from there, they
again proceeded to Dhing, Sonarigaon. The PW-1 has further
deposed that the vehicle in which he was travelling stopped in
front of one residential house and police entered into the said
house and he along with other persons were asked to come
inside the compound of the house, where he saw one person
trying to escape by jumping the wall. However, police arrested
the said person. Another person, who was waiting on his bike
near the house was also arrested.
6. The PW-1 has further deposed that the police conducted
house search in their presence and during the house search
police recovered a cash amount of Rs. 10,00,000/-(Rupees Ten
Lakhs), ganja in 8 packets, heroin packed in soap cases and
opium in packets along with some other articles. The PW-1 has
Crl.A. No. 138/2023 Page 8
also deposed that the police thereafter brought one weighing
machine and weighed the seized narcotic drugs in front of them
and after sometime, police also brought brass and sealing wax
and sealed the seized contraband. The PW-1 has also deposed
that he came to know that the said residential house belonged
to one Habil Ali (the appellant) and at that time Habil Ali was
present in the house. He also exhibited the seizure list as
Exhibit-1 and some other Material Exhibits. The digital weighing
machine was also seized which is exhibited as Exhibit-2 as well
as another weighing machine, which was also seized has been
exhibited as Exhibit-3. He has deposed that the police had
produced him before the Magistrate in the Court where his
statement was recorded which is exhibited as Exhibit-4.
7. During cross-examination, he has deposed that he shares
cordial relationship with Officer-In-Charge of Jajori Police
Station as the secretary of village defence party. He has also
deposed that the police entered into the residential house and
they were sitting inside the vehicle and after 10 minutes, they
were asked to come inside the compound. He had answered in
the negative to the suggestions given to him by the learned
defence counsel.
8. The PW-2, Sri Manoj Kumar Mahanta, has deposed that he
is the secretary of village defence party of Jajori Dalgaon under
Jajori Police Station and on the day of occurrence, he received a
Crl.A. No. 138/2023 Page 9
phone call from his friend Jahidul Rahman and he was called to
the police station. Thereafter, he accompanied the police and
went to Dhing, Sonarigaon where police entered inside a
residential house. He has deposed that Additional
SP(Headquarters), Nagaon also joined the police team. He has
stated that he was sitting inside the vehicle. From the vehicle,
he saw that one person was arrested from bike and another
person was arrested while he was trying to escape by climbing
the wall. After some time, he was also asked to come inside the
house. The PW-2 has also deposed that when he entered the
house, he saw "Bhang" (cannabis) wrapped in packets and
some soap cases. He also saw some "Kani" (opium). He also
saw some notebooks. The PW-2 has further deposed that the
police seized the articles in his presence and prepared the
seizure list on which he had put his signature as seizure
witness. He has also deposed that his statement was later on
recorded by the Magistrate, which is exhibited by him as
Exhibit-5.
9. During cross-examination, he has deposed that when the
police went inside the residential house, he waited in the vehicle
and initially his friend Jahidul(PW-1) was asked to come inside
and after some time he was also asked to go inside. He has
deposed that when he entered into the house, he was shown
the recovered articles by the police. However, he has not seen
Crl.A. No. 138/2023 Page 10
how it was recovered and from where it was recovered. He also
answered in the negative to some suggestive questions put to
him by the defence side.
10. The PW-3, Sri Pranjit Deka, has deposed that he had an
electronic weighing machine which has the measuring capacity
up to 30 kg and the police took his weighing machine to
Sonarigaon. He has deposed that he does not know what police
did with his weighing machine. At this point, the PW-3 was
declared as hostile witness and he was cross-examined by the
prosecution side. During cross-examination by the prosecution
side, the PW-3 had denied the suggestions put to him by the
prosecution side. During cross-examination by the defence side,
the PW-3 has deposed that he had not seen the police arresting
the drug mafia.
11. The PW-4, Sri Arun Jyoti Saikia, has deposed that on
06.12.2022, he was attached as the PSO of the Additional SP,
Nagaon, and on that day, he accompanied the police team as
well as the Additional SP, Nagaon to Dhing, Sonarigaon to the
house of appellant, Habil Ali. He has further deposed that the
police searched the house of Habil Ali and during search, they
recovered drugs and narcotics from inside the house. The PW-4
has also deposed that the recovery was video graphed by him
in his Samsung Galaxy A 50 mobile handset. Thereafter, the
video was transferred from his Samsung mobile to his ACR
Crl.A. No. 138/2023 Page 11
laptop and after transferring the video to the laptop, the same
was transferred to a 16 GB pen drive. He exhibited the pen
drive as Material Exhibit-9 as well as a certificate issued by him
under Section 65B of the Indian Evidence Act as Exhibit-6.
12. During cross-examination, the PW-4 has deposed that the
ACR laptop belongs to office in which the videos were
transferred from his mobile and he had mistakenly told that the
laptop belongs to his nephew. He has also deposed that they
were inside the house of Habil Ali conducting house search and
seizure for about four to five hours. He has also deposed that
the videos which he had recorded are in five parts and are not
continuous videos. He has also deposed that the videos do not
disclose from where the drug and narcotics were recovered. He
has also deposed that the police team did not call all the
neighbours, who came to the place of occurrence during search
and seizure. He has also deposed that the properties of all the
videos shown to him in the Court show that same has been
modified. He has also deposed that he does not know the worth
of a certificate given under Section 65B of the Indian Evidence
Act, 1872. He has also deposed that the black coloured packets
shown in the video were not opened to show what was inside
the said packets. He has also deposed that he does not know as
to who uses the official laptop.
13. PW-5, Sri Bapti Bora, has deposed that on 06.12.2021, he
Crl.A. No. 138/2023 Page 12
was attached as the PSO of Additional SP, Nagaon Mr. Meena
and he accompanied the Additional SP, Nagaon and the police
team which visited the house of Habil Ali (appellant). He has
deposed that on reaching the house of Habil Ali, the Additional
SP, Nagaon directed the police team accompanying him to enter
into the house of Habil Ali. He has deposed that, they searched
the house of the appellant and recovered drugs and narcotics
from inside the said house. He has also deposed that the
contraband was seized and sealed in their presence. He has
also deposed that his colleague Arun Jyoti Saikia, PSO, had
done the videography of the seizure procedure.
14. During cross examination, he has deposed that when the
police team reached Habil Ali's house, they did not approach
any neighbours to witness the search and seizure.
15. The PW-6, Sri Swaroop Modak, deposed that about one
and a half years ago, the police visited his shop, seized his
digital weighing machine of 100 kg capacity, and prepared a
seizure list, on which he signed. This witness was declared
hostile upon the prosecution's request, and during cross-
examination by the prosecution side, he denied having stated to
the police that the drugs were weighed on his machine at Habil
Ali's house.
16. During cross examination by the defence side, he has
Crl.A. No. 138/2023 Page 13
stated that he does not know the date of purchase of the
weighing machine. He also denied the suggestions made to him
by the defence side.
17. The PW-7, Sri Chandan Das, has deposed that in the year
2020, he was posted as Scientific Officer at Forensic Laboratory,
Kahilipara, Guwahati. He has deposed that on 08.12.2020, he
received a parcel from his director in connection with Dhing P.S.
Case No. 505/2020. The parcel consisted of three exhibits
enclosed in a sealed envelope cover. He has deposed that the
facsimile of the seal was found to be "SUPTD OF POLICE
NAGAON". He has deposed that the first exhibit, which is
marked as Exhibit-A, contained 30 grams of dry plant materials,
which was marked by him as DN1095/2020 (a), which gave
positive test for cannabis (ganja). The second exhibit, which
was contained in a polythene packet and marked as Exhibit-B,
containing 12 grams of brown colour substance and was
marked by him as DN 1095/2020 (b), gave positive test for
heroin and the percentage of heroin in the Exhibit was found to
be 72.52. The third exhibit was also contained in a polythene
packet labelled as Exhibit-C, containing 30 grams of dark brown
pasty substance and was marked by him as DN 1095/2020 (c),
which gave positive test for opium and percentage of morphine
in the exhibit was found to be 10.91. He has further deposed
that on 28.12.2020, he submitted the report along with the
Crl.A. No. 138/2023 Page 14
remnants of the exhibit back to the sending authorities. He has
exhibited the FSL examination report as Exhibit-7 and also
exhibited his signatures thereon.
18. During the cross-examination, the PW-7 deposed that the
samples he had examined were not produced in Court on the
day of his examination. He further stated that the copy of the
forwarding letter to the Officer-in-Charge of Dhing Police
Station, marked as Exhibit-8, did not mention the date. He
denied the suggestion that he had not received any parcel from
the Director in connection with Dhing P.S. Case No. 505/2020.
He also responded in the negative to certain other suggestive
questions posed by the defence side.
19. The PW-8, Sri Pulak Kumar, has deposed that on
05.12.2020, he was posted as the Officer-in-Charge of Jajori
Police Station and on that day, at about 9:30 PM, he received
secret information that one Habil Alli (appellant) deals in illicit
trade of narcotics and has planned to bring huge quantity of
illegal narcotics drugs from Manipur to Sonarigaon. He has
further deposed that accordingly, he made the Jajori PS GD
Entry No. 76 dated 05.12.2020 and informed the Additional SP
(Headquarter) Sri Mohan Lal Meena about the said secret
information. He exhibited the GD Entry as Exhibit-9. He has
further deposed that based on the said information, a raid was
planned in the morning of 06.12.2020 and the Additional SP
Crl.A. No. 138/2023 Page 15
Nagaon, Sri Mohan Lal Meena, along with SI Moon Basumatary
and other police staff left Nagaon and reached Jajori Police
Station at about 9:00 AM. He has further deposed that they also
requested two independent witnesses, namely, Jahidur Rahman
and Manoj Kumar Mahanta to remain present at the time of the
raid and explain them about the purpose of the search. The two
witnesses accompanied them. He has also deposed that the
Additional SP Mohan Lal Meena briefed the entire team about
the raid and the procedure to be followed. Thereafter, the
police team reached Besamari at about 11:00 AM on
06.12.2020 and waited for about an hour to get the
confirmation from the source about the arrival of the accused
persons. He has further deposed that at about 12:05 PM, the
confidential source, secret source gave them indication that the
accused persons, namely, the appellant Habil Ali and his
accomplice had arrived with illegal drugs in the house of the
appellant. Thereafter, PW-8 along with the police party, reached
the house of the appellant at about 12:20 PM. He has further
deposed that on reaching the place, they saw that the main
gate of the boundary wall was partially closed which was
opened by the PW-8 and the police party entered into the
premises of Habil Ali. The PW-8 has further deposed that
thereafter, he knocked the door of the house of Habil Ali and on
that Habil Ali came out and PW-8 identified himself to the
appellant and offered him to be searched before entering into
Crl.A. No. 138/2023 Page 16
his house. However, the offer was declined and as such the
search was conducted by the police party in presence of
independent witnesses. He has also deposed that he received
an authority letter for conducting search of the house of the
accused from the Additional SP. Said letter has been exhibited
as Exhibit-10.
20. The PW-8 has further deposed that during search of the
house of the appellant Habil Ali, total 157 small boxes
containing about 2076 grams of suspected heroin was
recovered. Eight packets of black colour polythene containing
suspected cannabis weighing about 101.48 kgs was also
recovered as well as one packet containing semi-liquid material
in white colour polythene bag suspected to be opium weighing
about 977 grams was also recovered. The PW-8 has further
deposed that the packets containing heroin were numbered as
P9, P10, P11 and P12. Whereas, the packets containing
cannabis were numbered as P1, P2, P3, P4, P5, P7 and P8. The
packet containing opium was marked numbered as P13. He has
further deposed that the apart from the aforesaid contraband,
cash amount of Rs. 10,70,690/- (Rupees Ten Lakhs Seventy
Thousand Six Hundred and Ninety only), which was suspected
to be the proceed of the crime was also seized from the house
of the appellant. One Mahindra XUV vehicle, one Maruti Swift
vehicle as well as one blue colour Pulsar bike were also seized.
Crl.A. No. 138/2023 Page 17
One weighing machine was also seized which was suspected to
be used for selling drugs. Two cheque-books, one laptop, one
Vivo mobile phone, one Samsung mobile phone were also
seized. The PW-8 had prepared the seizure list which is
exhibited as Exhibit-1. PW-8 has also deposed that the
Additional SP asked SI Jiten Phukan to bring the brass seal and
after weighing of the contraband the heroin was packed in a
carton box and sealed with the brass seal of Dhing Police
Station. PW-8 has further deposed that he recorded the
statement of witnesses and the entire process was video
graphed by one Arun Jyoti Saikia (PW-4).
21. The PW-8 has also deposed that thereafter, he
apprehended the appellant and other two accused persons and
lodged the FIR before the Officer-in-Charge of the Dhing Police
Station which is exhibited as Exhibit-11. Thereafter, he handed
over the seized articles and the accused persons to the Officer-
in-Charge of Dhing Police Station. He also exhibited the Godown
Memo as Exhibit-12 and the Malkhana Register as Exhibit-13,
wherein Exhibit 13 (1), (2), (3), (4) were the relevant entries
regarding the seized articles corresponding to the MR No.
96/20, 97/20, 98/20 and 99/ 20.
22. During the cross examination, the PW-8 has deposed that
the place of occurrence falls within the jurisdiction of Dhing
Police Station and there were no police officials from Dhing
Crl.A. No. 138/2023 Page 18
Police Station in their raid party. He has also deposed that the
seizure witness Jahidur Rahman and Manoj Kumar Mahanta
both hail from places situated within the jurisdiction of Jajori
Police Station and their residences are about 20 kilometers
away from the place of occurrence. He has also deposed that
he did not call any neighboring witness at the time of search as
he did not find any witness at that time. He has also deposed
that he has not furnished the copy of seizure list to the
appellant Habil Ali. He has also deposed that he did not write
the serial number of boxes in sequence in the Go-down Memo.
He has also deposed that Exhibit Nos. 13 (1), (2),(3) and (4)
are extra type sheets pasted into the Malkhana register and
there is no explanation for pasting extra type sheets in the
register. PW-8 has answered in the negative to a suggestive
question put to him that the Exhibits-13(1), (2), (3) & (4) are
subsequently manipulated entries. He has deposed that after
receiving the secret information he had not submitted any
written information to his senior. The PW-8 has also deposed
that he made a telephonic call to the independent witnesses
asking them to come to the place of occurrence, briefing them
about the seizure.
23. The PW-8 has also deposed that the authorization letter
does not discloses the time and date of issuance of same to
him. He has also deposed that there is no signature of any
Crl.A. No. 138/2023 Page 19
witnesses or seal on the material exhibits. He has also deposed
that the seizure list was prepared by him in reference to Jajori
PSGD Entry No. 76. The PW-8 has also deposed that in the Go-
down Memo in column No. 3 he had not mentioned about the
quantity; in column No. 4, about the mode of packing; in
column No. 7, about other identifying particulars of the seized
item and in column No. 8 country of origin; these columns were
left blank. The PW-8 was given several suggestions by the
defence side, which were all denied by him.
24. The PW-9, Sri Durga Kinkar Sharma, who is the
Investigating Officer of the case, has deposed that on
06.12.2020, he was posted at Nagaon as Circle Inspector,
Batadrava. He has deposed that the FIR was lodged by SI Pulak
Kumar, the then Officer-in-Charge of Jajori Police Station and
PW-9 registered the case as Dhing PS Case No. 505/2020 and
he conducted the investigation. He exhibited the FIR as Exhibit-
11. The PW-9 has deposed that Sri Pulak Kumar had handed
over the MCD No. 1 dated 06.12.2020 along with seizure list
and the statement of seizure witnesses. He has deposed that he
examined the informant, visited the place of occurrence and
drew the sketch map and also interrogated the accused
persons. He also exhibited the Go-down memo as Exhibit-12
wherein, signature of Jiten Phukon was also exhibited by him.
He has further deposed that on 07.12.2020, he produced the
Crl.A. No. 138/2023 Page 20
seized articles before the Court and prayed for certification by
the Magistrate. He has exhibited the application for certification
of correctness of the inventories, prayer for taking photographs
and samples of the seized contraband under Section 52 A of the
NDPS Act, 1985 as Exhibit-16. He has deposed that as per his
prayer, the Court allowed the prayer for issuance of the
correctness certificate, which is exhibited as Exhibit-17. He has
also exhibited the certificate on the photographs of the
contraband as Exhibit- 18 and the certificate of the inventories
as Exhibit-19. The photographs of the samples taken in the
Court was exhibited as Exhibit-20. He exhibited the photographs
of seized articles as Exhibit-21. He has further deposed that he
also took steps for sending the exhibits to Forensic Laboratory,
Guwahati for examination vide memo no. IV/167/2020/10158-
59 dated 07.12.2020 through one Trilochan Nath of Dhing
Police Station. He has further deposed that after completion of
the investigation, he submitted the charge sheet against three
accused persons, namely, Md. Habil Ali(the appellant), Md.
Mafidul Haque and Turbid Alam @ Bahatu @ Batu Alam under
Section 17(b)/18(c)/20(b)(ii)(C)/21(c)/25/27A of the NDPS Act,
1985.
25. During the cross-examination, the PW-9 has deposed that
there is no Go-down forwarding memo in the miscellaneous
case diary. He has also deposed that it is also not mentioned in
Crl.A. No. 138/2023 Page 21
the miscellaneous case diary as to whether the seized articles
were kept under double locking system as Malkhana is under
the control of the Officer-in-Charge of the Police Station and the
keys are kept with the Officer-in-Charge himself. He has also
deposed that the seized articles were handed over to the
designated Officer-in-Charge of the Police Station, namely Sri
Jiten Phukon, SI of police. He has deposed that he collected the
seized articles from the Malkhana police station and at that time
the articles were properly sealed and in packed condition. He
has also deposed that Exhibit-21 is the photograph of the seized
articles and the place of occurrence when it was not sealed or
packed. He has also deposed that the seized articles were
produced by him before the Court of learned Additional Chief
Judicial Magistrate, Nagaon and under his direction the staff of
the Prosecuting Inspector collected the samples. He has also
deposed that he did not exhibit the Forwarding Memo of the
samples sent to the forensic laboratory. He has also deposed
that the three packets were marked as Exhibit-A, Exhibit-B and
Exhibit-C and their photograph is exhibited as Exhibit-20.He has
also deposed that the three packets were kept in the safe
custody in the magazine of the Office of the Superintendent of
Police, Nagaon. He has also deposed that generally arms and
ammunitions are kept in the magazine storage. He has also
deposed that he had not submitted any receipt for keeping the
packets in the magazine storage. The PW-9 has further deposed
Crl.A. No. 138/2023 Page 22
that on 08.12.2020, he sent the samples for forensic
examination through the Office of the Superintendent of Police,
Nagaon. The PW-9 has further deposed during his cross-
examination that in the three packets mentioned in Exhibit-20,
there is no reference of the case number on it. Neither there is
description of the material and the date of packaging. He has
also submitted that he has not submitted any certificate under
Section 65B of the Evidence Act, 1872 in respect of Exhibit-20
and Exhibit-21. He has also deposed that he had not collected
any duplicate samples of the seized articles in the case. He
denied the suggestions given to him by the defence side.
26. During his examination under Section 313 of the Code of
Criminal Procedure, 1973, the appellant Habil Ali has pleaded
his innocence and has denied the truthfulness of the testimony
of the prosecution's witnesses. However, he declined to deduce
any evidence in his defence.
27. Mr. Y. S. Mannan, learned counsel for the appellant,
submitted that in the present case, there has been a total
violation of the mandatory provisions of Sections 42 and 57 of
the NDPS Act, 1985, which should result in a benefit to the
appellant. He argued that the testimony of PW-8, the Seizing
Officer, indicates that the information received by him was
neither reduced to writing nor annexed with the record. He
Crl.A. No. 138/2023 Page 23
further contended that the evidence also shows that a copy of
the information was not forwarded to the superior officer,
constituting a clear violation of the mandate under Section
42(2) of the NDPS Act, 1985.
28. The learned counsel for the appellant also pointed out that
the authority letter, marked as Exhibit-10, does not disclose the
time and date of its issuance. He argued that PW-8 failed to
produce any document appointing him as the Seizing Officer.
Moreover, no search warrant was issued to PW-8 for conducting
the search of the appellant's house. He further submitted that
the Additional SP, Nagaon, Sri Mohan Lal Meena, and SI of
Police, Moon Basumatary, were not examined as witnesses to
confirm their presence at the place of search and seizure on the
day of the incident. He has further submitted that the PW-8
failed to obtain the signatures of the accused and witnesses on
the seized articles, which is another significant procedural lapse.
29. The counsel for the appellant also contended that the
testimonies of PW-3 and PW-6 reveal that they were not
present at the time of the search and seizure and did not
witness the procedure. He further submitted that PW-1 and PW-
2 were unable to specifically state where the seized contraband
was recovered from. Additionally, he highlighted that PW-8
admitted during his deposition that he did not inform his
Crl.A. No. 138/2023 Page 24
superior officer in writing about the full report of the search and
seizure within 48 hours, as required under Section 57 of the
NDPS Act, 1985, thereby violating the said provision.
30. In support of his submissions, the learned counsel for the
appellant has cited following rulings: -
(1) "Joginder Singh & Anr. vs. Union of India" reported in
"2018 (2) GLT 402;"
(2) "Sri Prantosh Paul vs. The State of Tripura" reported
in"(2014) 5 GLT 193."
(3) "Gurbax Singh vs. State of Haryana" reported in "AIR
2001 SC 1002."
31. The learned counsel for the appellant has also submitted
that though the photographs of samples have been exhibited as
Exhibit-20 by PW-9, however, the samples in duplicates of the
seized contraband were not produced before the Court. He has
also submitted that the remnant samples received back from
the forensic laboratory have also not been produced before the
Court during trial. He has also submitted that the PW-9, i.e., the
Investigating Officer, did not exhibit the forwarding memo of
the sample sent to the forensic laboratory for examination, thus
creating a doubt, as to whether actually the samples examined
by the Forensic Laboratory were drawn from the contraband
which was seized in this case or not.
32. The learned counsel for the appellant has also submitted
Crl.A. No. 138/2023 Page 25
that adequate quantity of samples were not taken as per the
standing order 1 of 89 from the seized contraband. He also
submits that there is no evidence to show that samples were
taken by mixing homogeneously the contraband which were
seized and that the samples were not drawn in duplicate.
Hence, he submits that there is discrepancy in the drawing of
samples from the seized contraband.
33. The learned counsel for the appellant further submitted
that although the Scientific Officer of the forensic laboratory,
examined as PW-7 by the Trial Court, stated that the sample
packets received by him bore the seal with the impression
"SUPTD OF POLICE NAGAON," PW-9 did not state anywhere in
his testimony that the sample packets were sealed at the time
of collection using the departmental seal of the Superintendent
of Police, Nagaon.
34. The learned counsel also pointed out that PW-9 deposed in
his evidence that he sent the samples to the forensic laboratory
under Memo No. IV/167/2020/10158-59. However, during
cross-examination, PW-9 admitted that the memo number
mentioned in the FSL report is IV/167/2020/10157. This
discrepancy in memo numbers creates doubt regarding the
authenticity of the samples sent by the Investigating Officer to
the forensic laboratory and the samples actually received and
Crl.A. No. 138/2023 Page 26
examined by the forensic laboratory.
35. The learned counsel for the appellant further submitted
that there was non-compliance with the mandatory provisions
of Section 52A of the NDPS Act, 1985, as the procedure
prescribed under the said section was not properly followed. He
contended that PW-9 admitted during his deposition that he did
not provide a detailed description regarding the mode of
packing, color of the packets, and other specifics of the seized
goods in the seizure memo. The learned counsel argued that
the violation of the mandatory provisions of Section 52A of the
NDPS Act, 1985, entitles the appellant to acquittal.
36. In support of his submissions, the learned counsel for the
appellant has cited following rulings: -
1) "S. H Chanam Ranjit Meitei vs. Union of India" reported in
"2010 (3)GLT 361;"
2) "Union of India vs. Mohanlal and Anr." reported in "(2016) 3
SCC 379;"
3) "Mangilal vs. State of Madhya Pradesh" reported in "2023 0
Supreme SC 703;"
4) "Yusuf @ Asif vs. State" reported in "2023 0 INSC 912."
37. The learned counsel for the appellant has also submitted
that the prosecution side has failed to prove that the seized
contrabands were seized from the conscious possession of the
appellant inasmuch as it has failed to prove that the house from
Crl.A. No. 138/2023 Page 27
where the contraband were seized belong to the appellant.
38. The learned counsel for the appellant also submits that the
independent witnesses have not supported the fact of seizure of
the contraband as they did not know from where the
contraband was seized as they were sitting inside the vehicle
and entered into the premises later on only.
39. The learned counsel for the appellant has also submitted
that that there has been violation of the provisions of Section
55 of the NDPS Act, 1985 in this case as in the Malkhana
register which was exhibited as Exhibit-13 there are extra type-
sheet pasted on it and there was no explanation for the same
by any of the witnesses which only indicates that the Malkhana
register was manipulated and not related to the case. He also
submits that the PW-9 has admitted that the sample packets
were kept in the magazine storage of the Office of
Superintendent of Police, Nagaon, however, no receipt or any
documentary evidence regarding keeping of the samples there
has been produced by the prosecution side. The In-Charge of
the magazine storage of SP office was not examined to prove
the proper chain of custody of the samples. The learned counsel
for the appellant submits that as per the mandate of Section 55
of the NDPS Act, 1985 it was the duty of the Officer-In-Charge
of Dhing Police Station to keep the seized contraband in safe
Crl.A. No. 138/2023 Page 28
custody pending the order of the Magistrate and the sample
drawn were to be sealed by the seal of Officer-In-Charge of the
police station but, in the instant case it was not done. Thereby
the possibility of tampering of the samples drawn may not be
ruled out. He submits that in the prosecution relating to NDPS
cases question of where the samples had been stored and as to
when they have been dispatched or received by the forensic
laboratory is a matter of great importance on account of the
harsh penalty involved in these matters and anything on record
to indicate that the samples of the seized articles remained in
unknown custody would lead to acquittal of the appellant by the
Court.
40. In support of his submission the learned counsel for the
appellant has cited following rulings: -
(1) "State of Rajasthan v. Gurmail Singh," reported in
"(2005)3 SCC 59;"
(2) "State of Rajasthan v. Tara Singh" reported in "(2011)
11 SCC 559."
41. Finally, the learned counsel for the appellant has submitted
that there has been a violation of section 65 B of the Indian
Evidence Act in this case, inasmuch as, though, the PW-4 has
deposed that the video of the search and seizure procedure was
transferred from his mobile to his laptop and thereafter to one
16 GB pen drive, however, during his cross examination, he has
Crl.A. No. 138/2023 Page 29
stated that the laptop was an official laptop and he does not
know as to by whom the said laptop was used.
42. According to the learned counsel for the appellant, the
prosecution's non-adherence to the mandatory provisions of the
NDPS Act, 1985 constitutes serious procedural lapses, justifying
the appellant's acquittal by reversal of the impugned judgment
of conviction.
43. On the other hand, Ms. S. Jahan, the learned Additional
Public Prosecutor, has submitted that there has been no
violation of any mandatory provision of the NDPS Act 1985 in
this case. She has submitted that on receipt of the secret
information by the informant (PW-8), he recorded the same by
making GD Entry No. 76 on 05.12.2020 and informed his
Superior Officer, i.e., the Additional Superintendent of Police,
Nagaon, Mr. Mohan Lal Meena. She has submitted that as the
Superior Officer of the informant himself took part in the raid,
there has been substantial compliance of the provisions of
Section 42 of the NDPS Act, 1985. She has also submitted that
the informant in his deposition has categorically stated that
when he knocked the door of the house where search was
made, it was the appellant, who opened the house and during
the raid, the police team found contraband and other articles
inside the said house.
Crl.A. No. 138/2023 Page 30
44. She has also submitted that the independent witnesses
have proved the seizure and their statement recorded under
section 164 of the Code of Criminal Procedure, 1973
corroborates their testimony made in the Court. She has also
submitted that the Malkhana Register, which is exhibited as
Exhibit-13 also shows that the chain of custody was maintained
in respect of the samples drawn from the contraband. She has
also submitted that the samples from the seized contraband
were drawn in presence of the Magistrate, who had issued the
necessary certificates which were exhibited as Exhibit-17, 18,
and 19 and therefore, there has been substantive compliance of
the procedural requirement as mandated under Section 52 A of
the NDPS Act, 1985.
45. The learned Additional Public Prosecutor has also
submitted that as the forensic laboratory report, which was
exhibited as Exhibit-7, mentions about the Police Station Case
number as Dhing PS Case No. 505/2020, in connection with
which the exhibits were examined, hence, the discrepancy
regarding the memo number of the forwarding letter by which
the samples were forwarded to the forensic laboratory is not of
much relevance. She also submits that as the forensic
laboratory report specifically mentions about the Dhing P.S.
Case No. 505/2020, hence, the fact that before taking the
sample packets to the forensic laboratory, it was kept in the
Crl.A. No. 138/2023 Page 31
magazine storage of Nagaon S.P's Office loses its significance.
46. The learned Additional Public Prosecutor has also
submitted that the quantity of the samples drawn was more
than what was required under the standing order of 1 of 89.
She, therefore, submits that there is no violation of any
mandatory statutory provisions of Section 42 or 57 or for that
matter, Section 52A of the NDPS Act, 1985 and the evidence on
record has proved that the contraband were found in the
conscious possession of the appellant. Hence, she submits that
the impugned judgment of the Trial Court does not warrant any
interference in this Appeal.
47. We have considered the submissions made by the learned
counsel for both the sides. We have also gone through the
materials available on record meticulously. We have also gone
through the rulings cited by the learned counsel for both the
sides in support of their respective submissions.
48. A cursory perusal of the First Information Report, exhibited
as Exhibit-11, reveals that the secret information received by
the Officer-in-Charge of Jajori Police Station, who is also the
first informant in this case, indicated that one Habil Ali (the
appellant), a resident of the village Sonarigaon under Dhing
Police Station, was engaged in the illicit trade of narcotic drugs
and had planned to transport a large quantity of illegal narcotics
Crl.A. No. 138/2023 Page 32
from Manipur to Sonarigaon under Dhing Police Station.
49. 'From the testimony of the PW-8, who is the first informant
as well as the Seizing Officer, it appears that after entering the
premises of the appellant Habil Ali, the PW-8 knocked on the
door of the house. When Habil Ali came out, the PW-8 identified
himself and offered to be searched before entering, but this
offer was declined. Thereafter, the police party proceeded with
the search of the house of the appellant. This evidence of the
PW-8 has remained uncontroverted. It shows that the appellant
was inside the house which was searched by the police.
50. The evidence of PW-1, PW-2, PW-4, PW-5, and PW-8
establishes that the contraband seized in this case was
recovered from the house of the appellant, Habil Ali. Their
testimony on this point remained uncontroverted.
51. The appellant has never claimed that the contraband was
planted by the police or any other person in the house. Even
before the Trial Court, he contended only that the house from
which the contraband was recovered did not belong to him.
However, the Trial Court rejected this argument with proper
reasoning. We concur with the Trial Court's finding, as he was
residing there at the time of the search and seizure along with a
woman and two minor children.
52. The testimony of the PW-1 also shows that the contraband
Crl.A. No. 138/2023 Page 33
(suspected heroin, ganja, and opium) was seized by the police
during the search of the appellant's house, which is also proved
by the seizure list (Exhibit-1). The fact that the PW-1 initially
remained seated in the police vehicle for ten minutes and only
entered the compound when he was instructed to do so, does
not undermine his testimony regarding the recovery of the
seized contraband from the appellant's house.
53. The testimony of PW-2, who is also an independent
witness, shows that he accompanied the police team which
conducted the search in the house of Habil Ali at Sonarigaon.
Though, he has not seen the exact place inside the house of the
appellant from where the contraband was recovered as he also
waited in the police vehicle till he was asked to go inside.
However, when he entered into the house, the police showed
him the contraband recovered from the house of the appellant.
54. Likewise, the testimony of PW-4 and PW-5, both of whom
were the PSOs of Mr. Mohan Lal Meena, the then Additional
Superintendent of Police, also shows that the contraband was
recovered during the search of the appellant's house. Their
testimony remained intact during cross-examination and could
not be contradicted. The evidence of PW-4 and PW-5 cannot be
distrusted and disbelieved merely on account of their official
status. In this regard, it would be pertinent to reproduce the
Crl.A. No. 138/2023 Page 34
observations made by the Apex Court in the case of "Surinder
Kumar v. State of Punjab," reported in "(2020) 2 SCC 563" herein
below: -
"14. Further, it is contended by the learned Senior
Counsel appearing for the appellant that no
independent witness was examined, despite the fact
they were available. In this regard, it is to be noticed
from the depositions of Devi Lal, Head Constable (PW
1), during the course of cross-examination, has stated
that efforts were made to join independent witnesses,
but none were available. The mere fact that the case
of the prosecution is based on the evidence of official
witnesses, does not mean that same should not be
believed.
15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC
521 : (2011) 1 SCC (Cri) 1191] , relied on by the
counsel for the respondent State also supports the
case of the prosecution. In the aforesaid judgment,
this Court has held that merely because prosecution
did not examine any independent witness, would not
necessarily lead to conclusion that the accused was
falsely implicated. The evidence of official witnesses
cannot be distrusted and disbelieved, merely on
account of their official status."
55. Regarding the appellant's contention that the independent
seizure witnesses were not from the locality where the search
Crl.A. No. 138/2023 Page 35
was conducted, we are of the considered view that this fact
alone does not suffice to undermine their credibility. Moreover,
since the initial intelligence received from confidential sources
indicated that the appellant, Habil Ali, and his accomplice were
set to receive a consignment of drugs at an unspecified location
along National Highway No. 37, it was reasonable for the police
to arrange for independent witnesses in advance, given that the
precise location of the search was unknown at the time of
planning the raid.
56. The facts of the judgements in the case of (1) Joginder Singh
& Anr. vs. Union of India (supra) (2) Sri Prantosh Paul vs. The State of
Tripura (supra), (3) Gurbax Singh vs. State of Haryana (supra), which
were cited by learned counsel for the appellant, are
distinguishable from the facts of the present case. In the case
of Joginder Singh & Anr. vs. Union of India (supra) there was no
independent seizure witness, but in the instant case there were
two independent witnesses, though not of the same locality.
Recovery of contraband in the aforesaid cases were made from
vehicle/train, whereas in the instant case it is from the house of
the appellant. Moreover, in none of the cited cases, the superior
officer was accompanying the search and seizure team,
whereas, in the instant case the Additional Superintendent of
Police (HQ), Nagaon was himself supervising the search and
seizure procedure and was present at the location where the
Crl.A. No. 138/2023 Page 36
search was made. Hence, we are of the considered opinion that
the cases which were cited by the learned counsel for the
appellant are distinguishable and same may not be of any help
to the appellant.
57. Let us now consider the contention of the learned counsel
for the appellant that, although the search and seizure
operation was conducted at Sonarigaon within the jurisdiction of
Dhing Police Station, no police personnel from Dhing Police
Station were involved in the search operation, hence, the
credibility of the entire search and seizure procedure is
questionable.
58. The evidence of PW-8, along with the contents of the FIR
(Exhibit-11), indicates that the initial secret information received
suggested that the appellant, Habil Ali, and his accomplice were
to receive a consignment of drugs at an unidentified location on
National Highway No. 37. The Additional SP (Headquarters),
Nagaon, was informed about this intelligence, and a raid was
subsequently planned under his supervision.
59. Though, we are of the considered opinion that involving
the jurisdictional police station before conducting a search and
seizure operation in a particular area is the appropriate
approach, given that the original information pertained to an
unknown location, it was not unnatural for PW-8, the Officer-In-
Crl.A. No. 138/2023 Page 37
Charge of Jajori Police Station, to proceed with the raid without
informing the Officer-In-Charge of Dhing Police Station
beforehand, especially since the Additional SP (Headquarters),
Nagaon, was personally supervising the operation. Hence, we
are of the considered opinion that merely because no police
personnel from Dhing Police Station were involved in the search
and seizure procedure, the entire process would not be vitiated,
given the peculiar facts and circumstances of this case.
60. Let us now, address the contention raised by the learned
counsel for the appellant regarding the alleged violation of the
mandatory procedural requirement under Section 42(2) of the
NDPS Act, 1985. The learned counsel for the appellant has
submitted that there was a breach of the mandatory procedure,
as the Seizing Officer failed to send a copy of the information,
recorded in writing, to his immediate superior within 72 hours
as required under Section 42(2) of the NDPS Act, 1985.
61. Though, the judgements cited by the learned counsel for
the appellant namely, (1) Union of India vs. Mohanlal and Anr.(supra)
(2) Mangilal vs. State of Madhya Pradesh (supra) (3) Yusuf @ Asif vs.
State (supra) and (4) S. H Chanam Ranjit Meitei vs. Union of India
(supra) lays down that the compliance of the provisions of
section 52 A of the NDPS Act is mandatory. Similarly, the
compliance of Section 42 (2) of the NDPS Act is also held to be
mandatory. However, the Apex Court has also observed in a
Crl.A. No. 138/2023 Page 38
catena of its rulings that where there is substantial compliance
of the procedural requirements and no prejudice is caused to
the accused, any minor procedural lapses, if at all, which do not
go to the root of the matter, do not affect the credibility of the
prosecution case.
62. The determination of whether the procedures prescribed
under the NDPS Act are directory or mandatory was considered
by the Supreme Court of India in the case of "State of Punjab v.
Balbir Singh," reported in "(1994) 3 SCC 299," wherein it
observed as follows: -
"25. The questions considered above arise
frequently before the trial courts. Therefore we
find it necessary to set out our conclusions which
are as follows:
(1) If a police officer without any prior
information as contemplated under the provisions
of the NDPS Act makes a search or arrests a
person in the normal course of investigation into
an offence or suspected offences as provided
under the provisions of CrPC and when such
search is completed at that stage Section 50 of
the NDPS Act would not be attracted and the
question of complying with the requirements
thereunder would not arise. If during such search
or arrest there is a chance recovery of any
narcotic drug or psychotropic substance then the
Crl.A. No. 138/2023 Page 39
police officer, who is not empowered, should
inform the empowered officer who should
thereafter proceed in accordance with the
provisions of the NDPS Act. If he happens to be
an empowered officer also, then from that stage
onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS
Act.
(2-A) Under Section 41(1) only an
empowered Magistrate can issue warrant for the
arrest or for the search in respect of offences
punishable under Chapter IV of the Act etc. when
he has reason to believe that such offences have
been committed or such substances are kept or
concealed in any building, conveyance or place.
When such warrant for arrest or for search is
issued by a Magistrate who is not empowered,
then such search or arrest if carried out would be
illegal. Likewise only empowered officers or duly
authorized officers as enumerated in Sections
41(2) and 42(1) can act under the provisions of
the NDPS Act. If such arrest or search is made
under the provisions of the NDPS Act by anyone
other than such officers, the same would be
illegal.
(2-B) Under Section 41(2) only the
empowered officer can give the authorisation to
his subordinate officer to carry out the arrest of a
person or search as mentioned therein. If there is
Crl.A. No. 138/2023 Page 40
a contravention, that would affect the
prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered
officer if has a prior information given by any
person, that should necessarily be taken down in
writing. But if he has reason to believe from
personal knowledge that offences under Chapter
IV have been committed or materials which may
furnish evidence of commission of such offences
are concealed in any building etc. he may carry
out the arrest or search without a warrant
between sunrise and sunset and this provision
does not mandate that he should record his
reasons of belief. But under the proviso to
Section 42(1) if such officer has to carry out such
search between sunset and sunrise, he must
record the grounds of his belief.
To this extent these provisions are
mandatory and contravention of the same would
affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered
officer who takes down any information in writing
or records the grounds under proviso to Section
42(1) should forthwith send a copy thereof to his
immediate official superior. If there is total non-
compliance of this provision the same affects the
prosecution case. To that extent it is mandatory.
But if there is delay whether it was undue or
Crl.A. No. 138/2023 Page 41
whether the same has been explained or not, will
be a question of fact in each case.
(4-A) If a police officer, even if he happens
to be an "empowered" officer while effecting an
arrest or search during normal investigation into
offences purely under the provisions of CrPC fails
to strictly comply with the provisions of Sections
100 and 165 CrPC including the requirement to
record reasons, such failure would only amount
to an irregularity.
(4-B) If an empowered officer or an
authorised officer under Section 41(2) of the Act
carries out a search, he would be doing so under
the provisions of CrPC namely Sections 100 and
165 CrPC and if there is no strict compliance with
the provisions of CrPC then such search would
not per se be illegal and would not vitiate the
trial.
The effect of such failure has to be borne
in mind by the courts while appreciating the
evidence in the facts and circumstances of each
case.
(5) On prior information the empowered
officer or authorised officer while acting under
Sections 41(2) or 42 should comply with the
provisions of Section 50 before the search of the
person is made and such person should be
informed that if he so requires, he shall be
Crl.A. No. 138/2023 Page 42
produced before a Gazetted Officer or a
Magistrate as provided thereunder. It is
obligatory on the part of such officer to inform
the person to be searched. Failure to inform the
person to be searched and if such person so
requires, failure to take him to the Gazetted
Officer or the Magistrate, would amount to non-
compliance of Section 50 which is mandatory and
thus it would affect the prosecution case and
vitiate the trial. After being so informed whether
such person opted for such a course or not would
be a question of fact.
(6) The provisions of Sections 52 and 57
which deal with the steps to be taken by the
officers after making arrest or seizure under
Sections 41 to 44 are by themselves not
mandatory. If there is non-compliance or if there
are lapses like delay etc. then the same has to be
examined to see whether any prejudice has been
caused to the accused and such failure will have
a bearing on the appreciation of evidence
regarding arrest or seizure as well as on merits of
the case."
63. We have to, therefore, examine as to whether the
procedural lapse, pointed out by learned counsel for the
appellant, goes into the root of the prosecution's case and
whether it causes any prejudice to the appellant and thereby
Crl.A. No. 138/2023 Page 43
affecting the prosecution's case adversely.
64. In the instant case, it appears that the secret information
received by PW-8 (the informant as well as the Seizing Officer)
was written down as GD Entry No. 76 dated 05.12.2020 at
Jajori Police Station, which has been exhibited as Exhibit-9.
Although PW-8 admitted during his cross-examination that he
did not submit any written information to his superior regarding
the receipt of the secret information, he did inform the
Additional SP, Nagaon, about it. Moreover, the testimonies of
PW-1, PW-2, PW-4, PW-5, and PW-8 establish that the
Additional SP, Nagaon, was personally supervising the search
and seizure operation and was present at the location.
65. The key question is whether this lapse was material
enough to cause prejudice to the appellant. In the present case,
the evidence on record demonstrates that the Additional SP
(Border), Nagaon, who is a superior officer to PW-8, was
personally present during the search and seizure procedure and
was supervising it. Hence, we are of the considered opinion
that, given the facts and circumstances of this case, PW-8's
failure to send a copy of the secret information to his superior
officer, as required under Section 42(2) of the NDPS Act, 1985,
amounts to a procedural irregularity rather than a fatal flaw.
This lapse does not prejudice the appellant or adversely affect
the prosecution's case.
Crl.A. No. 138/2023 Page 44
66. One pertinent question involved in this case is as to
whether the search which was made by the PW-8, i.e., the
Officer-in-Charge of Jajori Police Station, was under Section 41
(2) of the NDPS Act, 1985 on the strength of an authorization
by the Empowered Officer or under Section 42(1) of the NDPS
Act, 1985, as being an empowered officer himself. Though, the
PW-8 has deposed that he had received an authority letter from
the Additional SP(Headquarters), Nagaon to search the house of
the accused persons and said authority letter has been
exhibited as Exhibit-10, however, the submission made by the
learned Additional Public Prosecutor to the effect that the
informant being a Sub-Inspector of Police is empowered by the
Government of Assam, by the special order of this State
Government under Section 42 (1) of the NDPS Act, 1985 is
relevant. In this regard Government of Assam Notification No.
EX. 145/85/290 dated 25th April 1995 is quoted herein below: -
"Notification No. EX. 145/85/290
dated 25th April 1995
"In exercise of the powers conferred by sub-section (1) of
Section 42 read with Section 67 of the Narcotic Drugs and
Psychotropic Substances Act 1985 ( 61 of 85), the Governor of
Assam is pleased to empower all Excise Officer above the rank of
Assistant Inspector of Excise, Police Officer of and above the rank
of Sub-Inspector of Police and Drug Officer of and above the rank
of Inspector of Drugs to exercise the powers and perform the
duties specified in Section 42 within the areas of their respective
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jurisdiction and also authorize and the said officers to exercise
powers conferred upon them under Section 67 of the Act with
effect from date of publication of the notification in the official
gadget.
This modifies the Department Notification No. EX.145/85/285
dated 06.02.89."
67. A cursory reading of the aforesaid notification would reveal
that by the aforesaid notification, the police officers above the
rank of Sub-Inspector of Police have been empowered under
Section 42(1) of the NDPS Act, 1985 to conduct search and
seizure and other duties specified under Section 42 of the said
Act. However, it also makes clear that such powers are to be
exercised within the areas of their respective jurisdiction.
68. In the instant case, the PW-8, namely, Sri Pulak Kumar
was posted as the Officer-in-Charge of Jajori Police Station and
the place of seizure, i.e. Sonarigaon falls within the jurisdiction
of Dhing Police Station and therefore, the place where search
and seizure was conducted was not within his jurisdiction at
that point of time. We are, therefore, of the opinion that the
search and seizure was not conducted by the PW-8 as an
empowered officer under Section 42(1) of the NDPS Act, 1985.
Rather, it was conducted as an authorized officer under Section
41 (2) of the NDPS Act, 1985 by virtue of the authorization
(Exhibit-10) given by the Additional Superintendent of Police,
Nagaon, who himself was an empowered officer in pursuant to
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the Notification No. EX. 145/85/301 dated 15th May 1995 of the
Government of Assam.
69. Under Section 41(3) of the NDPS Act, 1985 an officer who
has been authorized under Section 41(2) shall have all the
powers of an officer acting under Section 42 of the NDPS Act
1985.
70. It also appears that after the seizure of the contraband,
PW-8 lodged the FIR (Exhibit 11) before the Officer-in-Charge
of Dhing Police Station, detailing every aspect of the search and
seizure. The seized articles, along with the arrested accused
persons, were also handed over to the Officer-in-Charge of
Dhing Police Station. Under such circumstances, we are of the
considered opinion that since the superior officer of the PW-8,
namely the Additional Superintendent of Police, Nagaon, was
himself present and supervising the search and seizure
procedure, the failure to furnish a report under Section 57 of
the NDPS Act, 1985, would amount to a procedural irregularity
rather than a defect affecting the core of the prosecution's case.
Moreover, the appellant has failed to demonstrate how the
absence of such a report prejudiced him, particularly when the
superior officer was personally present and overseeing the
entire process.
71. As regards the contention of the learned counsel for the
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appellant regarding the prosecution's failure to produce the
duplicate sample and remnants before the Trial Court during
the trial, we are of the considered opinion that there is no
mandatory requirement to do so. This is particularly true in light
of Section 52A(4) of the NDPS Act, 1985, which stipulates that
inventories, photographs of narcotic drugs and psychotropic
substances, and any list of samples drawn under Section 52A
and certified by a Magistrate shall be treated as primary
evidence in respect of the offence involved.
72. Although the production of samples and remnants is not
necessary during the trial, there is a procedural lapse in the
instant case concerning Standing Order No. 1 of 1989. The
Seizing Officer failed to draw duplicate samples of the
contraband, as mandated by the Standing Order. No plausible
reason has been provided for this omission. However, this lapse
does not appear to have prejudiced the appellant, particularly
since there was no request for re-examination of the seized
contraband that would have necessitated a second sample. In
our considered opinion, this procedural lapse is not fatal to the
prosecution's case.
73. Regarding the learned counsel for the appellant's
contention that an excess quantity of samples was drawn from
the contraband, it appears that the sample of cannabis (Exhibit-
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A) weighed approximately 30 grams, the sample of heroin
(Exhibit-B) weighed about 12 grams, and the sample of opium
(Exhibit-C) weighed around 30 grams. As per the Standing
Order No. 1 of 1989, the required quantity for a sample is 5
grams for heroin and 25 grams each for opium and ganja. In
the present case, the quantity of samples drawn exceeds the
prescribed limit. However, in our considered opinion, this does
not cause any difficulty in testing or affect the forensic
laboratory results. Therefore, we are of the opinion that this
deviation does not impact the prosecution's case.
74. In the present case, the learned counsel for the appellant
has raised a plea regarding a discrepancy in the memo numbers
related to the dispatch of the samples to the Forensic
Laboratory. According to the learned counsel, PW-9, the
Investigating Officer, sent the samples to the Forensic
Laboratory in Guwahati via Memo No. IV/167/2020/10158-59.
However, the memo number recorded in the forensic laboratory
report, exhibited as Exhibit-17, is Memo No.
IV/167/2020/10157.
75. It appears that the memo number under which the
samples were sent does not match the memo number recorded
in the forensic report. The memo received by the forensic
laboratory ends with "10157," whereas the memo stated to
have been sent ends with "10158-59." However, this
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discrepancy is not of substantive significance. The forensic
report, exhibited as Exhibit-17, explicitly states that it pertains
to Dhing PS Case No. 505 of 2020, which is the case in hand.
The case number serves as the primary identifier, ensuring that
the tested samples correspond to the contraband seized in this
case. Furthermore, the forensic laboratory report unequivocally
establishes that the analyzed sample originated from this case,
leaving no doubt that the sample tested was the same as the
one seized. The accuracy and reliability of forensic testing
remain unaffected by this minor inconsistency in memo
numbers. Accordingly, the trial court was justified in
disregarding this discrepancy.
76. The appellant's contention regarding an alleged break in
the chain of custody is without merit. The forensic laboratory
received the samples bearing the official seal of the "SUPTD OF
POLICE NAGAON," an officer of higher authority, ensuring
credibility in handling the evidence. The requirement under
Section 55 of the NDPS Act, 1985, mandates that samples be
sealed to maintain their integrity, which was duly followed in
this case. There is no evidence to suggest tampering or
mishandling of the samples at any stage, and the defense has
failed to substantiate its claim with any concrete proof.
77. The evidence on record clearly establishes that after the
samples were drawn before the Magistrate on 06.12.2020, they
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were stored securely in the magazine storage at the office of
the Superintendent of Police, Nagaon, until their transfer to the
Forensic Laboratory. The mere non examination of the In-
Charge of the magazine storage, as a witness for the
prosecution, does not create any reasonable doubt regarding
the chain of custody. The defense has not presented any
evidence to suggest unauthorized access or tampering during
storage, and in the absence of such proof, the integrity of the
samples remains intact.
78. As regards compliance with Section 52 A of the NDPS Act,
1985, the prosecution has demonstrated substantial adherence
to the statutory requirements. The inventory of the seized
contraband, along with the photographs of the samples, was
duly certified by the Magistrate, thereby reinforcing their
authenticity and evidentiary value. The purpose of Section 52A
is to ensure proper documentation and transparency in handling
seized contraband, which has been duly fulfilled in this case.
The absence of any specific procedural detail does not, by itself,
render the prosecution's case doubtful, particularly when there
is no material to suggest tampering or manipulation of the
samples. Any minor procedural lapses, if at all, do not go to the
root of the matter, nor do they affect the credibility of the
forensic findings. The overall compliance with the mandate of
Section 52 A of the NDPS Act, and adherence to due process
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sufficiently establish the reliability of the evidence, making it
both credible and admissible.
79. Since the Trial Court did not rely on the certificate under
Section 65B of the Indian Evidence Act, which was exhibited as
Exhibit-6 by PW-4, we refrain from discussing this evidence in
the present judgment. We are of the considered opinion that
the Trial Court correctly declined to rely on the said evidence, in
light of the law laid down by the Supreme Court of India in
"Anwar P.V. vs. P.K. Bashir & Ors.," reported as "2014 SCC Online
SC 732."
80. In light of the discussions in the foregoing paragraphs, we
do not find any merit in this appeal justifying any interference in
the impugned judgement of conviction and sentence imposed
on the appellant.
81. Accordingly, this appeal is dismissed.
82. Send back the record of the Trial Court, along with a copy
of this judgment to the Trial Court.
JUDGE JUDGE
Comparing Assistant
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