Page No.# 1/2 vs The State Of Assam And Anr
2025 Latest Caselaw 4524 Gua

Gauhati High Court

Page No.# 1/2 vs The State Of Assam And Anr on 27 March, 2025

                                                                      Page No.# 1/21

GAHC010228012022




                                                                 2025:GAU-AS:3604

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./293/2022

            ALI HUSSAIN @ DUKHIYA
            S/O LATE JALAL UDDIN,
            VILL.- DUPAGURI PATHAR,
            P.O. AND P.S.- DIHING,
            DIST.- NAGAON, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY P.P., ASSAM.

            2:AJAY BARMAN
             S.I OF POLICE
             S/O LATE MAKHAN LAL BARMAN

            R/O DHING

            P.S.- DHING POLICE STATION

            DIST.- NAGAON (ASSAM)

Advocate for the Petitioner   : MR H R A CHOUDHURY, MR. I U CHOWDHURY,MR. A AHMED

Advocate for the Respondent : PP, ASSAM,

Page No.# 2/21

:::BEFORE:::

HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 12.12.2024 Date of Judgment & Order : 27.03.2025

JUDGMENT & ORDER (CAV)

Heard Mr. A. Ahmed, learned counsel for the applicant. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent.

2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 01.10.2022, passed by the learned Special Judge No. 2, Nagaon in Special NDPS Case No. 194/2021, convicting the accused/appellant under Section 22(C) of NDPS Act and sentencing him to undergo R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo further S.I. for 6 months.

3. The prosecution story, in brief, is that an ejahar dated 23.09.2021 was lodged by one Ajay Barman, Officer-In-Charge, Dhing Police Station (PW-3), alleging that a secret information was received on 22.09.2021, at about 8.10 a.m., from a reliable source that the accused/appellant went to Dimapur to procure illegal arms and was returning on the same date by a bus along with arms. The said information was accordingly shared with Additional S.P. (HQ). Later on, the informant received the information from the Officer-In-Charge, Dillai P.S. (Karbi Anglong) that they have detained the appellant along with one Rashidul Haque. It is further alleged that during interrogation, the appellant Page No.# 3/21

disclosed about his previous antecedents involving himself in dacoity cases. Further it also came to know during interrogation that the appellant is also a drug dealer and on the basis of the said information, the house of the appellant was searched at around 11.30 p.m. along with other officials and the independent witnesses. During search, they recovered some black colour polythene bag containing 326 numbers of strips of paracetamol, dicyclomine Hydrocholoride and Tramadol Hydrochloride capsules containing 8 capsules in each strip, each strip total 2608 numbers of capsules from one lock store room and subsequently 107 numbers of black colour polythene bags, suspected to be used to conceal and carry soap cases containing heroin drugs and 209 numbers of rubber band, suspected to be used to tie soap cases containing heroin drugs from the cupboard in the bed room. Accordingly, he lodged the F.I.R. against the present appellant along with one Rashidul Haque.

4. After receipt of the F.I.R. in the police station, a case was registered, being Dhing P.S. Case No. 552/2021, under Sections 22(C)/29 of NDPS Act, and after investigation, the police also filed charge-sheet against the present appellants under Section 22(C) of NDPS Act. Thereafter, the cognizance of offence was also taken by the learned Special Judge under Sections 22(C)/29 of the NDPS Act and the charges were also framed under the said Sections of law, to which the appellant pleaded not guilty and claimed to be tried. During trial of the case, the prosecution examined 4 (four) numbers of witnesses including the Scientific Officer. The statement of the accused/appellant was recorded under Section 313 Cr.P.C. wherein he took the plea of denial, but did not adduce any evidence to substantiate his plea of innocence. Accordingly, after hearing the arguments put forwarded by both sides, the learned Special Judge No. 2, Nagaon, passed the Page No.# 4/21

impugned judgment and order dated 01.10.2022 convicting the accused/appellant and further acquitted the 3 (three) others from the said charge. Hence, on being highly aggrieved and dissatisfied with the impugned judgment and order of conviction dated 01.10.2022, the present appeal has been preferred by the accused/appellant.

5. It is submitted by Mr. Ahmed, learned counsel for the appellant, that the learned Special Judge No. 2, Nagaon committed grave error and mistake while passing the order of conviction against the present accused/appellant. The impugned judgment and order was passed without scrutinizing the evidence as well as other materials on record and hence, the findings arrived at by the learned Special Judge No. 2, Nagaon is wrong, perverse and liable to be set aside and quashed. He further submitted that the Inventory, i.e. Exhibit-4, shows different categories of tablets which were alleged to be seized and those are paracetamol, dicyclomine Hydrochloride and Tramadol Hydrochloride and the Inventory is silent about the batch number and the color of the tablets. Thus, it cannot be said that the seized tablets/capsules are of Tramadol and in absence of such proof, the paracetamol tablets does not fall under the NDPS Act. More so, in absence of clear finding regarding the quantity of Narcotic Drugs in the tablets, which were alleged to have been seized, the order of conviction cannot be passed under Section 22(C) of NDPS Act.

6. Further he submitted that the prosecution miserably failed to prove that all the seized capsules are same inasmuch as the Investigating Agency only sent one strip to FSL for examination instead of taking random samples as required under the law. Thus, the seizure and inventory is not prepared as required Page No.# 5/21

under Section 52(A) of the NDPS Act nor it was prepared as per the Central Government Standing Order. More so, in the present case, the I.O. of the case also could not be examined by the prosecution and it is observed by the learned Special Judge that the evidence of I.O. is not much required to ascertain the preparation of seizure and inventory. It is a fact that the PW-3 initially prepared the seizure list as well as inventory, but it is the duty of the Investigating Officer to see whether the inventory or seizure list for the purpose of investigation was done in accordance with law and only for the fact that the PW-3 prepared the seizure list and inventory, the prosecution could not abstain from examining the I.O. More so, there was also no proper compliance of Section 42 of NDPS which clearly states that the search and seizure has to be done between sun rise and sun set. But, in the present case, there is no mention as to why search was conducted at about 11.30 p.m. without following the procedure under Section 42 of the NDPS Act. Thus, it is seen that the learned Special Judge, without proper appreciation of evidence on record and without proper scrutinizing of the search and seizure list as well as the inventory, had arrived at a decision convicting the accused/appellant which is liable to be set aside and quashed.

7. Mr. Ahmed further submitted that at the time of seizure, the appellant was in the vehicle and no seizure was made in his presence. More so, from the evidence of PW-2, i.e. the VDP Secretary/seizure witness, it is seen that the seizure was made from a store house and it was open. Thus, the probability of keeping the articles by other person also cannot be denied and it cannot be held that the contraband was seized from the exclusive possession of the present appellant. Further, it is evident from the evidence of PW-2 that the other brothers also reside in the same compound wherefrom the contraband was Page No.# 6/21

alleged to have been recovered. Further he submitted that mere sending the G.D. Entry to the Superintendent of Police cannot be considered as sufficient compliance of Section 42 of the NDPS Act. Admittedly, the search was made in the night at about 11.30 p.m. and there was no evidence that it was reduced to writing. Further, there is no evidence that the accused/ appellant had any knowledge in regards to the contraband which were alleged to be recovered from his house.

8. In regards to the compliance of Section 42 of NDPS Act, Mr. Ahmed relied on a decision of Hon'ble Supreme Court which was reported in (2016) 14 SCC 358 (Darshan Singh Vs. State of Haryana) and basically emphasized on paragraph Nos. 13 & 15 of the said judgment, which reads as under:

"13. Having given our thoughtful consideration to the submission advanced at the hands of learned counsel for the respondent, we are of the view that the mandate contained in Section 42(1) of the NDPS Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Criminal Procedure Code. Sub-section 1 of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub- section (2) of Section 41 refers to issue of authorization for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Sub-section (1) of Section 42 of the NDPS Act lays down, that the empowered officer, if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that 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 warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated therein will Page No.# 7/21

have to be followed separately, in the manner interpreted by this Court in Karnail Singh's case (supra) and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Criminal Procedure Code.

15. In aforesaid view of the matter, we are satisfied that Section 42 of the NDPS Act was not complied with at all, insofar as the present controversy is concerned. Thus viewed, conclusion (d) recorded in Paragraph 35 of the judgment rendered in Karnail Singh's case (supra), would fully apply to the facts and circumstances of the present case, and we are left with no other option, but to set aside the conviction and the sentence of imprisonment of the accused-appellant Darshan Singh. Ordered accordingly. The appeal stands allowed."

9. Mr. Ahmed further submitted that the legislature had made the provision under Section 42 of NDPS Act as mandatory and it is not optional and thus, the total non-compliance of Section 42 of NDPS Act may be a ground for acquittal of the accused persons. However, there may be a delay in compliance of Section 42 of NDPS Act and in that case also, sufficient explanation is required for the delay in complying with Section 42 of NDPS Act. To support his submission, he also relied on another decision of Hon'ble Supreme Court passed in Sukhdev Singh Vs. State of Haryana, reported in (2013) 2 SCC 212, and emphasized on paragraph Nos. 25 & 26 of the judgment, which read as under:

"25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that : (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post- recovery.

26. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions Page No.# 8/21

of Section 42 of NDPS Act mandatory and not optional as stated by this Court in the case of Karnail Singh (supra)."

10. Raising the issue of possession, the learned counsel for the appellant, Mr. Ahmed, submitted that as per prosecution the alleged recovery was made from the house of the accused/ appellant, but it was evident from the statement made by the PWs that the other family members also resides in the same compound and more so, when the recovery was made, the door of the house was found in the open condition and thus, it cannot be stated that the recovery was made from the conscious possession of the accused/appellant. In that context also, he relied on a decision of Hon'ble Supreme Court which was reported in 2015 0 Supreme(SC) 316 (Mohan Lal Vs. State of Rajasthan) and emphasized on paragraph 8 of the said judgment, which read as under:

"8. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody".

Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term "possession" is fundamentally dominated by Savigny- ian "corpus" and "animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another."

11. Accordingly, Mr. Ahmed submitted that due to technical irregularity and non-compliance of Section 42 of NDPS Act, viz-a-viz in absence of the total compliance of Section 52 of NDPS Act, the impugned judgment and order passed by the learned Special Judge is liable to be set aside and quashed. In the same time, the Investigation Officer also failed to prove the recovery of the Page No.# 9/21

contraband from the conscious possession of the accused/ appellant. But, the learned Special Judge without proper appreciation of evidence and other materials on record had passed the order of conviction which is liable to be set aside and quashed.

12. On the other hand, Ms. Bora, learned Additional Public Prosecutor, submitted that there was specific compliance of Section 42 of NDPS Act as it reveals from the record itself that after recording of the G.D. Entry, PWs- 2 & 3 conducted the house search and the copy was duly sent to the superior officer, i.e. the Superintendent of Police, complying Section 42 of NDPS Act. Thus, it cannot be held that there was total non-compliance of Section 42 of NDPS Act as claimed by the accused/appellant. More so, the alleged contrabands were recovered from the conscious possession of the accused/appellant and the inventory etc. was also made complying the provision of Section 52(A) of NDPS Act. In the same time, there was also compliance of Section 55 of the NDPS Act. She further submitted that PWs- 1 & 2, who are the vital witnesses of the prosecution, are found to be reliable and consistent and their evidences cannot be rebutted by the defence by cross-examining them. House was also properly identified at the time of its search and there was also no delay in production of the articles as required under the law. Accordingly, she submitted that there was proper compliance of Sections 42, 52(A) & 55 of NDPS Act and observing all necessary formalities, the contraband was sent to FSL for examination and considering all these materials on record, including the FSL Report Etc., the learned Special Judge had passed the judgment and order of conviction and hence, the interference of this Court is not at all necessary in the impugned judgment and order of conviction dated 01.10.2022, passed by the learned Page No.# 10/21

Special Judge No. 2, Nagaon in Special NDPS Case No. 194/2021 and accordingly, she prayed for dismissal of the present appeal.

13. I have given my anxious consideration to the submissions made by the learned counsels for both sides and also perused the materials available on record.

14. It is the case of the prosecution that initially the information was received in regards to involvement of the present accused/appellant in case of smuggling of the arms and dacoity, but during the interrogation, it has come to the knowledge of the informant that the accused is a drug peddler and deals with the business of drug. Thereafter, on the basis of the said information, the house search was made, which was accordingly identified by the PW-2, and the contraband was allegedly recovered from the possession of the accused/appellant which was duly seized and after observing all necessary formalities, those were sent to FSL for examination which gave positive test and after recording the evidences of required PWs, the charge-sheet was filed. Accordingly, the learned Trial Court below recorded the statements of the witnesses and after hearing the arguments from both sides had passed the order of conviction.

15. On the other hand, it is the case of the appellant that the accused/appellant is innocent and he has been falsely implicated in this case and basically stressed that without proper compliance of Sections 42, 52(A) & 55 of the NDPS Act, the charge-sheet was filed and the learned Trial Court below without proper appreciation of evidence and proper scrutinizing all other Page No.# 11/21

materials on record, had passed the order of conviction, which is perverse and liable to be set aside and quashed.

16. So, before coming to any conclusion, let us first scrutinized the evidence of PWs.

17. PW-3, the Officer-In-Charge, Dhing Police Station, is the informant of this case, who received the information that the accused/appellant is an arm dealer and therefore, with the help of police from Dillai Police Station, Karbi Anglong, the accused/ appellant was apprehended along with his associate one Rashidul Hoque. But, during interrogation, it was come to the knowledge of the informant that the accused is also a drug peddler and getting the said information, he made a G.D. Entry No. 514, dated 22.09.2021, organized a police party and along with the present appellant, visited his house at Dhupguri Pathar and in presence of the Sarkari Gaon Burah- Ajmal Khan and Secretary VDP- Anuwar Hussain, the house search was made. From his evidence, it is seen that the said Sarkari Gaon Burah- Ajmal Khan, i.e. PW-1, and the Secretary VDP- Anuwar Hussain, i.e. PW-2, were present at the time of house search and accordingly, the contraband was recovered from the store room and bed room of the house of the accused/appellant, which were 326 numbers of strips of Paracetamol Dicyclomine Hydrochloride and Tramadol Hydrochloride tablets and each strips contained 8 tablets. He further deposed that after the seizure, the seizure list was accordingly prepared in presence of 2 (two) independent witnesses and those were kept in police malkahana after making entries in the Malkhana Register and thereafter he lodged the F.I.R. and on the basis of which, the case was registered. He also exhibited the Seizure List, Inventories, Page No.# 12/21

F.I.R., Sketch Map etc. He further stated in his evidence that on the basis of his investigation, the charge-sheet was filed by his successor against the present appellant under Section 22(C)/29 of the NDPS Act.

18. As per the evidence of PW-1, i.e. the Gaon Burah, the entire search and seizure was conducted in his presence as well as the PW-2, i.e. the VDP Secretary. Further, as per PW-1, he knows both the accused/appellant and other co-accused, Rashidul Hoque, as they were from same village and PW-2 also identified both of them and as per both PWs- 1 & 2, the police officer asked them to accompany to the police party to the house of accused/appellant to remain as witnesses during the search and seizure and they claim that the entire search and seizure was done in presence of them wherefrom huge number of tablets were recovered from one wooden house situated adjacent to the main house of the accused/appellant. They accordingly put their signatures in the seizure list as seizure witnesses.

19. Thus, it is seen that the PWs- 1, 2 & 3 are the vital witnesses of the prosecution and PWs- 1 & 2, as discussed above, also claimed their presence at the time of said recovery.

20. From the cross-examination of these PWs, it is seen that the PW-3 when cross-examined in regards to detention of the accused/appellant, along with one Rashidul Hoque, he stated that one G.D. Entry was made, vide G.D. Entry No. 568, dated 25.07.2021, and the limited detention cannot be suspected to be a illegal detention as getting the information, the G.D. Entry was made and they were interrogated. From their cross-examination, it is further seen that the PWs-

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1 & 2, the Gaon Burah and VDP Secretary, respectively, had properly identified the house of the accused/appellant and the presence of the accused/appellant in the police vehicle also otherwise establishes that he led the police party to his house or to the place where the contrabands were kept. The suggestion was also put to the PW-3 regarding the non-compliance of Section 42(2) of NDPS Act, to which he stated that the Dhing P.S. G.D. Entry No. 568, dated 25.07.2021 and G.D. Entry No. 514, dated 22.09.2021, were made and the same were sent to the superior officer, i.e. the Superintendent of Police, complying the provision of Section 42 of NDPS Act.

21. PW-4 is the Scientific Officer and he deposed in his evidence that while he was posted as Joint Director of Directorate of Forensic Science, Assam, Kahilipara, he received the sealed parcel from his Director in connection with Dhing P.S. Case No. 552/2021 and the said parcel consisted with one exhibit enclosed in a sealed envelope cover and the facsimile of the seal was found to be Superintendent of Police, Nagaon. He also deposed that the envelope contained a strip with 8 numbers of blue colour capsules branded as "Proxymed- Spas" which was marked accordingly and on examination, it gave positive test for Tramadol and amount of Tramadol per capsule was found to be 48.50 mg and accordingly, he submitted his Report, which was also exhibited by him. He, however, admitted in his cross-examination that he had not mentioned the date of his Report when the Director of Forensic had received the envelope nor there is any mention about the procedure which was used during chemical examination.

22. So, from the discussions of the PWs, it is seen that only 4 (four) numbers Page No.# 14/21

of PWs were examined by the prosecution including the informant and the FSL Expert. More so, the PWs- 1 & 2 are also considered to be most vital witnesses of the prosecution, who are independent witnesses cum the seizure witness and in whose presence, the entire search and seizure was conducted. PW-3 is the informant of this case who received the information of arm dealing by the accused/appellant, but, subsequently, during interrogation, it came to the knowledge of the informant that the accused/appellant is also a drug dealer.

23. Though it the contention of the learned counsel for the appellant that there was total non-compliance of Section 42 of NDPS Act, which is mandatorily required to be complied, and mere sending the G.D. Entry to the concerned Superintendent of Police cannot be considered as sufficient compliance of Section 42 NDPS Act. In the present case, it is seen that one S.I. Barman, who was the Officer-In-Charge of the concerned police station and the seniormost police officer, led the search and apart from that, G.D. Entry was also sent to the next superior officer, i.e. the Superintendent of Police, for necessary information, which was reduced to writing. Thus, it cannot be said that there was no proper/specific compliance of Section 42 NDPS Act and more so, sending the G.D. Entry to the Superintendent of Police concerned, which was reduced to writing, may be considered as the specific compliance of Section 42 NDPS Act. Further, it is not a case that only the copy of F.I.R. was sent to the superior officer for registration of the case, but immediately after getting the information regarding the peddling of drugs by the present accused/appellant, the G.D. Entry was made and accordingly visited the place of occurrence as led by the accused/appellant.

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24. Coming to the issue raised by the learned counsel for the appellant in regards to the compliance of Section 52 of NDPS Act, it is seen that the PW-3, after recovery of the contraband, seized the contraband in presence of PWs- 1 & 2 and other independent witnesses by observing all formalities and thereafter prepared the Inventory and kept the same in police malkhana after making necessary entries in the Malkhana Register and after completing all those formalities, lodged the F.I.R. Thus, it is seen that the PW-3 had observed all necessary formalities at the time of search and seizure and therefore, it can be held that there is total compliance of Section 52-A of NDPS Act. More so, it is also seen that on the next date morning, the police also made a prayer for certification of the Inventory and the learned Magistrate, vide order dated 23.09.2021, had certified the Inventory as required under Section 52-A of the NDPS Act.

25. Further, in regards to compliance of Section 55 of the NDPS Act, it is seen that the learned Special Judge also discussed in detail in regards to chain of custody and it is seen that the search and seizure took considerable time and the seizing police party reached the police station only at about 1.05 a.m. and after reaching the police station, the articles were kept in Malkhana and the Inventory was also prepared and on next day morning, those were produced before the Magistrate for certification of the Inventory. Thus, it is seen that Section 55 of NDPS Act is also complied with at the time of search, seizure, registration in Malkhana as well as the certification of Inventory etc.

26. Further, it is the contention of the appellant that the search and seizure was made from the campus of the house of the accused/appellant and it is evident from the statement of the PWs that the other family members also Page No.# 16/21

reside in the same compound wherefrom the alleged recovery was made and thus, the prosecution could not prove the recovery of the contraband from the conscious possession of the accused/appellant. In that context, as discussed above, the learned counsel for the appellant also relied on a decision of Hon'ble Supreme Court passed in Mohan Lal (supra). But, from the evidences of the PWs, it is seen that PWs- 1 & 2, i.e. the Gaon Burah and the VDP Secretary, duly identified the house of the accused/appellant and in the same time, it is also seen that the accused/appellant led the police party to his house wherefrom the recovery was made. Thus, only on the ground that the other family members also reside in the house of the accused/appellant, it cannot be held that the recovery was not made from the conscious possession of the accused/appellant. Further, from the evidences of the PWs, it is very much clear that the entire recovery was made in presence of the accused/appellant, who led the police party to his own house wherefrom the recovery was made.

27. In the case of Mohan Lal (supra), as relied by the learned counsel for the appellant, the Hon'ble Supreme Court in paragraph No. 9 of the judgment had observed that there are 2 (two) kinds of possession, one actual possession and other is constructive possession. Accordingly, it is observed that " a person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, eighter directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or Page No.# 17/21

constructive possession of a thing, possession is joint."

28. Here in the instant case, it is seen that the accused/ appellant had led the police party to the place where the contraband was kept and subsequently the same was recovered and seized in his presence and thus, it can be held the accused/appellant had the actual possession over the contraband.

29. Coming to the issue of non-examination of I.O., it is the admitted position that the PW-3 had conducted the entire investigation and he recorded the statement of the witnesses, completed the seizure procedure and also completed all other formalities including the preparation of Inventory etc. It is also seen that the statement of the witnesses were recorded by the PW-3 and it is rightly observed by the learned Special Judge that the cross-examination of the PWs does not indicate that any of the witnesses confronted with the previous statement and accordingly the learned Special Judge did not find it necessary to call for the I.O. to examine him. More so, from the paragraph No. 49 of the judgment passed by the learned Session Judge, it is also seen that at the stage of argument, the defence was given opportunity to point out the variation, discrepancies and contradiction from the previous statement of the witnesses. However, no major contradiction could be pointed out and accordingly it has been observed that non-examination of I.O. does not affect the right of the accused person.

30. It is a settled principle of law that the informant can also be an Investigating Officer if it does not vitiate the trial. The Hon'ble Supreme Court in Page No.# 18/21

case of Mukesh Vs. NCT of Delhi had observed that the investigation or part of it done by informant police officer does not vitiate the trial and thus, the informant as well as the person who recorded the statement cannot be fatal to the prosecution case unless it is apparent that if any prejudice is caused to the defence. But, here in the instant case, the defence could not bring any such circumstances wherefrom it can be inferred that while investigating the matter by the informant himself the same caused any prejudice to the accused/appellant.

31. Mr. Ahmed, learned counsel for the appellant, also raised the issue that there is no mention of batch number or the colour of the tablets which includes the tablets of paracetamol, dicyclomine Hydrocholoride and Tramadol Hydrochloride in the Inventory and thus, it cannot be said that the seized tablets or the capsules are of Tramadol and in absence of such proof, the paracetamol does not fall under the NDPS Act. But, from the evidence of the Scientific Officer, it is seen that while examining the tablets, he followed the United Nation Drug Testing Manual which gave the positive test for Tramadol and amount of Tramadol per capsule was found to be 48.50 mg. However, it is a fact that he did not mention about the other components present in the Tramadol tablets. Further, non-mentioning of date in his report about the receipt of envelope by the Director of Forensic Science cannot be fatal for the prosecution and on that basis only, the FSL examination report cannot be disbelieved as well as the evidence of FSL Expert cannot be discarded.

32. As per Section 54 of the NDPS Act, presumption can be taken that the accused has committed the offence under this Act unless and until the contrary Page No.# 19/21

is proved and provides a reverse burden of prove upon the accused. But, here in the instant case, it is seen that the prosecution could able to establish the foundational fact to establish the case against the accused in regards to commission of the offence.

33. Section 35 as well as Section 54 of the NDPS Act read as under:

"35. Presumption of culpable mental state.--

(1)In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.Explanation: In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.

(2)For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

54. Presumption from possession of illicit articles.-- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--

(a)any narcotic drug or psychotropic substance or controlled substance;

(b)any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c)any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d)any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."

34. In case of Noor Aga Vs. State of Punjab, reported in (2008) 17 SCC 407, the Hon'ble Supreme has held as under:

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"The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs.2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e., `proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to uphold the individual human rights and dignity as provided for under the UN Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the concept of `wider civilization'. The courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused."

35. In the case of Saulat Rasool (supra), as cited by the learned counsel for the appellants, this Court, considering the judgment passed by the Hon'ble Supreme Court in Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305, has held in paragraph 17 of the judgment 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." But, the accused/appellant did not adduce any defence nor could rebut the evidence of the prosecution to rebut the presumption under Section 54 of NDPS Act.

36. Thus, both the presumption under Sections 35 & 54 of NDPS Act are rebuttable and can be rebutted by the accused either by cross-examining the PWs or by adducing any rebuttable evidence. But, here in the instant case, it is seen that in spite of establishment of the foundational facts by the prosecution, Page No.# 21/21

the accused/appellant could not rebutted the evidences of PWs nor he could adduce any evidence in his favour to rebut the prosecution case.

37. So, from the entire discussions made above, it is seen that the prosecution could establish the foundational facts beyond all reasonable doubt and from the evidence on record as well as the other documentary evidence, it can be held that there is sufficient compliance of Sections 42, 52, 52-A & 55 of the NDPS Act which are mandatorily required to be followed and the learned Trial Court below also considering all aspects of the matter had rightly passed the judgment and order convicting the accused/ appellant and hence, I find that the judgment and order dated 01.10.2022, passed by the learned Special Judge No. 2, Nagaon in Special NDPS Case No. 194/2021, convicting the accused/appellant under Section 22(C) of NDPS Act, requires no interference of this Court and accordingly, the same stands upheld. Consequently, the appeal stands dismissed. No order as to cost(s).

38. With the above observation, the criminal appeal stands disposed of.

39. Send back the case record to the learned Court below along with a copy of this judgment and order.

JUDGE

Comparing Assistant