Gauhati High Court
Page No.# 1/28 vs The State Of Assam And Anr on 1 May, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/28
GAHC010246532022
2025:GAU-AS:5370-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./326/2022
BANAMALI SARKAR
S/O LATE PULEN CH. SARKAR,
R/O JELKAJHAR, PATGIRI,
P.S. AND DIST.- BONGAIGAON.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE P.P., ASSAM.
2:KULENDRA KR. HUJURI
S/O UMESH CH. HUJURI
S.I OF BONGAIGAON POLICE STATION
PIN- 783380
ASSAM
Advocate for the Petitioner : MS M DAS, MR. M BISWAS,MR. B HALDAR
Advocate for the Respondent : PP, ASSAM,
Before
Hon'ble mr. justice Sanjay Kumar Medhi
Hon'ble Mr. Justice Kakheto Sema
Advocate for the Appellant : Shri M. Biswas
Advocate for the Respondents : Ms. S. Jahan, APP, Assam
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Dates of hearing : 04.03.2025, 06.03.2025 & 07.03.2025
Date of Judgment : 01.05.2025
Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred under Section 374 of the Code
of Criminal Procedure, 1973 [corresponding to Section 415 BNSS] against
the judgment and sentence dated 30.09.2022 passed by the learned
Special Judge, Bongaigaon in Special (Nar) Case No. 46(BGN)/2021 under
Section 20(C) of the NDPS Act, thereby sentencing the appellant to
undergo RI for 12 (Twelve) years and to pay a fine of Rs.1,00,000/-
(Rupees One Lakh) in default further imprisonment for 6(six) months.
2. The criminal law was set into motion by registering a GD Entry No.
685 dated 21.05.2021 by the Sub-Inspector of Police, Bongaigaon Police
Station (PW5). As per the said entry which was recorded at 6:50 PM, it was
stated that secret information was received regarding storage of
contraband ganja. A raid was accordingly made at about 08:00 PM in which
25.563 KGs of ganja were seized. On 22.05.2021, the formal FIR was
lodged by the said PW5 in which there was full narration of the facts and
the GD entry was also mentioned. After investigation, the Charge Sheet
was laid before the learned Trial Court. The charges were thereafter,
framed and on denial of the same, the trial had begun in which the
prosecution had adduced evidence through 9 nos. of witnesses. There was
also a Court Witness (CW) who was a Police Officer.
3. PW1 is an independent witness who was also a seizure witness. He
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had deposed that on 21.05.2021 at about 9:00 PM, he was at a shop near
his house when the Police had arrived and asked him to show the house of
the appellant. He had also named one Pradip Burman (PW2) who was also
present with him and the house of the appellant was shown. In the cross-
examination, however, PW1 had stated that he did not see from where the
Police had seized the ganja and he had not seen the seized ganja in the
Court on the date of his examination. He has also stated that the ganja was
not weighed in his presence. He had admitted before the Police that he did
not state that the appellant was involved in ganja business.
4. PW2 is another independent witness who had corroborated the
presence of PW1 and deposed of showing the house of the appellant to the
Police. He had stated that he was witness to the seizure of the ganja from a
shed behind the house of the appellant which had weighed about 25 KGs.
He had, however, stated in his cross-examination that he had not seen from
where the Police had recovered the ganja, had not seen the ganja in the
Court nor had he seen the Police measuring the ganja.
5. PW3 is a co-villager whose evidence is not very relevant as he had
come to know about the incident from someone else. Similarly, PW4 is also
a co-villager who is a hearsay witness and had stated that he came to know
about the incident from somebody else.
6. PW5 is a relevant witness who is the informant in the present case.
He had stated that on the way to make the search, the independent
witnesses were approached and at about 08:00 PM they had entered the
premises of the appellant when the wife of the appellant had informed that
the appellant was not at home. He had also stated that an authority letter
was given to make the said search and the said authority letter was proved
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as Exhibit 3. He had stated about recovering ganja of an amount of 25.563
KGs which were seized from 9 packets in an adjacent room in the backside
of the house and one yellow cement bag containing suspected ganja from
the garage which was kept inside a spare tyre. The recovered suspected
ganja were brought to the front courtyard of the house of the appellant and
each packet was weighed in present of the DSP (HQhhJHHSSHQ) and O/C,
Bongaigaon which was found to be 25.563 KGs and the seizure list was
accordingly made which was proved as Exhibit 1. The recovered suspected
ganja were unloaded from the 10 packets to 3 new polythene bags which
were again weighed and sealed and the signatures of the independent
witnesses were taken. At 09:40 PM they had left the place of occurrence
and at 10:00 PM they had reached the Police Station whereupon the
inventory was prepared and the seized ganja was kept in a Maalkhana. The
ejahar was lodged on the next date at about 10:00 AM which was proved
at Exhibit 4. In his cross-examination, however, PW5 had stated that he had
not informed his superior officer in writing about the secret source and the
GD entry. He had also admitted of not mentioning certain details in his
statement made under Section 161 of the CrPC [corresponding to Section
180 BNSS]. He had, however, stated that at the relevant time, authority
letter was given to him by Shri Amitraj Choudhury, DSP (HQ) and also
denied the suggestion that no ganja was seized from the house of the
appellant and that search and seizure were not conducted as per the
procedure of the Act.
7. PW6 is a Staff of the Court of the learned CJM, Bongaigaon, who had
deposed that on 22.05.2021 at about 2:50 - 3:00 PM, the Police had
brought suspected ganja in three packets and he had prepared three
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sample packets which were marked as A1, B1 and C1 which were sealed
with the facsimile seal of the CJM, Bongaigaon. The sample packets were
accordingly handed over to the IO for sending to FSL. In his cross-
examination however he had admitted of not stating before the Police that
he had prepared 3 sample packets.
8. PW7 is an Office Peon of the Court of the learned CJM who had,
however, stated that the three sample packets of 25 grams each were
prepared by the Police.
9. The IO was examined as PW8 and had deposed that the FIR was
lodged by SI - Kulendra Kumar Hujuri (PW5) which also contains the
signature of the O/C, Bongaigaon PS - Shri Jyoti Lahon (CW). He had
deposed regarding preparation of the sketch map prepared (Exhibit 5) and
recording of statements of the witnesses. He had also stated that the
accused was found absconding. He deposed regarding the prayer made to
the Court 'to see' of the original seizure list as well as exhibits and the said
prayer was proved as Exhibit 6 which was duly seen by the learned In-
Charge CJM, Bongaigaon by putting signature [Exhibit 6(2)]. Inspector -
Jyoti Lahon (CW) prepared the inventory (Exhibit 7) containing his
signature, who also made prayer for certification of correctness of the
inventory, permission for taking photographs of the seized items and for
certification of such photographs and also to allow drawing of
representative samples and for certification of the correctness. The
certification was done by the learned I/C CJM by putting signature [Exhibit
- 8(2)]. As per permission of the Court, 3 samples were collected of 25
grams each and marked as Exhibits A(1), B(1), C(1) and the remaining
ganja was sealed and marked as A, B and C. The order of the learned
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Magistrate was proved as Exhibit 9, photographs of the samples as Exhibit
10, photographs of the seized articles as Exhibit 11. Prayer for sending the
samples to FSL was also proved as Exhibit 12 which was allowed by the
learned I/C CJM. The information regarding the seizure and recovery was
given to the SP, Bongaigaon vide Exhibit 13 which was also shown to the
learned I/C CJM, who put signature [Exhibit 13(2)]. Similarly, Authority
Letter (Exhibit 14) was also endorsed by the learned I/C CJM [Exhibit
14(1)]. The samples were sent to FSL, Guwahati vide forwarding letter of
Additional SP (Exhibit 15) and an Authority Letter to break the seal of the
samples (Exhibit 16). The FSL report was proved as (Exhibit 17). The
Charge Sheet was accordingly laid which was proved as (Exhibit 19).
In his cross-examination the said witness had however stated that of
not recording the statements of the O/C, DSP (HQ), Additional SP and ABC,
Girish Ch. Ray (Messenger) and the Cameraman. He had also deposed that
the informant did not state before him that he had informed in writing
about the secret information and copy of the GDE to the Superior Officer or
regarding giving of Authority Letter and other details. He had also admitted
that extract copy of the Malkhana Register was not submitted with the
Charge Sheet.
10. PW9 is the FSL Officer who had deposed that on 24.05.2012, he had
received the sealed envelope cover from the Office of the Superintendent of
Police, Bongaigaon (Exhibit 15), in which there were three sample packets.
He had submitted that the said envelope had contained the facsimile of the
Seal of the Office of the learned CJM. He had deposed that the three sealed
envelopes which were proved as Exhibit A1, B1, C1 were examined and the
same was tested positive as ganja. The report of the FSL Officer was
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proved as Exhibit 17. The said PW9 was subjected to cross-examination.
11. Another Inspector of Police, namely, Jyoti Lahon, was examined as
Court Witness 1, who had deposed regarding preparation of the Inventory
Report which was proved as Exhibit 7. He had also deposed regarding the
certification by the Magistrate on the said inventory which was also proved.
He had deposed that the samples were sent to the FSL Guwahati vide a
forwarding letter of the Additional SP which was proved as Exhibit 15.
Thereafter, the report from the FSL had come which was proved as Exhibit
17.
12. Based on the evidence on record, the appellant was examined under
Section 313 of the CrPC [corresponding to Section 351 BNSS] and after
hearing the parties, vide the impugned judgment, the conviction and
sentence has been made, which is the subject matter of challenge in the
present appeal.
13. We have heard Shri M. Biswas, learned counsel for the appellant. We
have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.
14. Shri Biswas, the learned counsel for the appellant, has formulated his
arguments on the following heads.
i. The prosecution had failed to prove the chain of custody
and there is unexplained time gap.
ii. The Maalkhana in charge was not examined and neither
the register was produced.
iii. The messenger to the FSL was not examined and therefore,
an inference is liable to be drawn under Section 114 Illustration
(g) of the Indian Evidence Act [corresponding to Section 119
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BSA].
iv. There is no evidence that the facsimile seal of the CJM was
there in the sample packets.
v. There is discrepancy on the samples inasmuch as, whereas
at one point the samples have been marked as A1, B1, C1
whereas the letter by the Additional SP which was proved as
Exhibit 15, the samples have been described as Exhibit A, B and
C.
vi. There was no homogeneous mixing of the seized
contraband.
vii. There was no evidence that the samples were collected
from the three packets and therefore it would be doubtful as to
whether the total amount would actually meet the requirement of
a commercial quantity.
viii. There is discrepancy as to who had collected the sample.
He elaborates that while as per PW6 who is the staff of the Court
of the learned CJM, sample packets were prepared by him,
another Staff of the learned CJM (PW7) had deposed that the
Police had prepared the three samples.
ix. There is violation of the statutory provisions of the NDPS
Act namely Sections 41 and 57.
15. Elaborating his submissions, the learned counsel for the appellant
has contended that with regard to the place from where the seizure has
been made, there is no consistency amongst the two independent
witnesses PW1 and PW2. He submits that according to PW1, he had not
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seen from where the ganja was seized and the PW2, though in his chief
examination had stated that the recovery was made from a shed behind
the house of the appellant, in his cross-examination, he was not certain
about such recovery.
16. The learned counsel for the appellant has laid great stress on the
aspect that the seized articles were not proved before the learned Court.
He has submitted that though allegedly certain samples were drawn, those
were also not done in accordance with law and therefore it was incumbent
upon the prosecution to produce the entire seized contraband before the
Court as primary evidence.
17. He has submitted that in the inventory, Exhibit 7, there was no
signature of certification by the learned Magistrate. To demonstrate the
same, he has taken us to page 81 of the Paper Book which does not
contain any such signature. He has also highlighted the aspect that the FSL
Officer, in his deposition had talked about the facsimile seal of the
Superintendent of Police, Bongaigaon and not about any such seal of the
Court of the CJM, Bongaigaon, before whom the samples were drawn and
packets were made. He has submitted that the same would amount to
serious discrepancy and therefore there cannot arise a situation of reaching
to a conclusion of guilt beyond all reasonable doubt. He has submitted that
the penalty prescribed under the NDPS Act is stringent and therefore there
is a heavy burden cast upon the prosecution to prove the allegation beyond
all reasonable doubt.
18. The learned counsel for the appellant has also drawn the attention of
this Court to the Standing Orders of 1989 which were issued. He has
submitted that such Standing Orders were issued as a part of the
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requirement of a statute. The learned counsel has candidly admitted that
though certain aspects of the said Standing Orders were criticized by the
Hon'ble Supreme Court in the case of Union of India Vs. Mohanlal and
Anr. [(2016) 3 SCC 379], the same existed until the Rules were brought
into force in the year 2022.
19. In support of his submission, the learned counsel for the appellant
has relied upon the following decisions-
a. Karnal Singh Vs. State of Haryana [(2009) 8 SCC 539]
b. Vijay Jain Vs. State of Madhya Pradesh [(2013) 14 SCC 527]
c. Jitendra & Anr Vs. State of Madhya Pradesh [(2004) 10 SCC
562]
d. Noor Aga Vs. State of Punjab [(2008) 16 SCC 417]
e. State of Gujarat Vs. Ismail U. Haji Patel & Anr. [(2003) 12
SCC 291]
f. State of Rajasthan Vs. Tara Singh [(2011) 11 SCC 559]
g. State of Rajasthan Vs. Gurmail Singh [(2005) 3 SCC 59]
h. Md. Khalid & Anr Vs. State of Telengana [(2024) 5 SCC 393]
i. Gorakh Nath Prasad Vs. State of Bihar [(2018) 2 SCC 305]
j. Gangadhar @ Gangaram Vs. State of Madhya Pradesh
[(2020) 9 SCC 202]
k. Md. Manirut Jaman Vs. State of Assam [2024 SCC OnLine
Gau 1511]
20. The case of Karnal Singh (supra) has been cited to contend that
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though the compliance of Section 42(2) of the NDPS Act may be delayed,
but there has to be substantive compliance of the same.
21. The case of Vijay Jain (supra) has been cited in support of his
contention that the seized materials were not produced before the Court.
He has also submitted that since there was no evidence of any destruction
of the contraband, there was no explanation as to why the same was not
produced before the Court. The case of Jitendra (supra) has been cited in
support of the submission regarding the requirement of production of the
seized contraband in the Court. On the same point, the case of Noor Aga
(supra) has been cited in which non production of the physical evidence
has been held to have cumulative effect.
22. On the aspect of chain of safe custody, the case of Ismail U. Haji
Patel (supra) has been cited which has taken into consideration the
requirement of compliance of Section 55 of the Act by submitting that in
the case in hand, there is no evidence of such compliance.
23. The case of Tara (supra) has been cited with regard to the
importance of drawing samples. The case of Gurmel (supra) has been
cited to bring in the aspect of link evidence which is necessary for a
conviction in a case under the NDPS Act. The case of Md. Khalid (supra)
has been cited on the aspect of safe keeping of the contraband. In this
connection, he has reiterated the submission that the messenger, who was
sent from the Office of the Superintendent Police, Bongaigaon to the FSL,
Guwahati was not examined. On the aspect of Sections 35 and 54
regarding presumption and reverse burden, the case of Gorakh Nath
Prasad (supra) has been cited as well as the case of Gangadhar (supra).
In the case of Gorakh Nath (supra), the following observations have been
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made-
"5. The NDPS Act provides for a reverse burden of proof upon the
accused, contrary to the normal rule of criminal jurisprudence for
presumption of innocence unless proved guilty. This 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. The mere registration of a case under the Act will not
ipso facto shift the burden on to the accused from the very
inception. Compliance with statutory requirements and procedures
shall have to be strict and the scrutiny stringent. If there is any iota
of doubt the benefit shall have to be given to the accused."
24. In the subsequent case of Gangadhar (supra) by referring to the
earlier case of Noor Aga (supra), the following observations have been
made-
"8. The presumption against the accused of culpability under Section
35, and under Section 54 of the Act to explain possession
satisfactorily, are rebuttable. It does not dispense with the obligation
of the prosecution to prove the charge beyond all reasonable doubt.
The presumptive provision with reverse burden of proof, does not
sanction conviction on basis of preponderance of probability. Section
35(2) provides that a fact can be said to have been proved if it is
established beyond reasonable doubt and not on preponderance of
probability.
9. That the right of the accused to a fair trial could not be whittled
down under the Act was considered in Noor Aga vs. State of Punjab,
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(2008) 16 SCC 417 observing:
"58. ... An initial burden exists upon the prosecution and only
when it stands satisfied, would the legal burden shift. Even
then, the standard of proof required for the accused to prove
his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of
the accused on the prosecution is "beyond all reasonable
doubt" but it is "preponderance of probability" on the accused.
If the prosecution fails to prove the foundational facts so as to
attract the rigours of Section 35 of the Act, the actus reus
which is possession of contraband by the accused cannot be
said to have been established.
59. With a view to bring within its purview the requirements of
Section 54 of the Act, element of possession of the contraband
was essential so as to shift the burden on the accused. The
provisions being exceptions to the general rule, the generality
thereof would continue to be operative, namely, the element
of possession will have to be proved beyond reasonable
doubt."
10. The stringent provisions of the NDPS Act, such as Section 37,
the minimum sentence of 10 years, absence of any provision for
remission do not dispense with the requirements of prosecution to
establish a prima facie case beyond reasonable doubt after
investigation, only where after which the burden of proof shall shift
to the accused. The gravity of the sentence and the stringency of
the provisions will therefore call for a heightened scrutiny of the
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evidence for establishment of foundational facts by the prosecution."
25. Regarding the requirement to have a list of samples in accordance
with the provisions of Section 52A, the case of Md. Manirut Jaman
(supra) has been cited.
26. The learned counsel for the appellant accordingly submits that the
prosecution had failed to prove the case beyond all reasonable doubt and
therefore the impugned judgment of conviction and sentence is liable to be
interfered with and the appellant is entitled to be set at liberty.
27. Per contra, Ms. Jahan, the learned Additional Public Prosecutor has
supported the impugned judgment and has strongly opposed the
submissions and prayer made by the appellant.
28. The learned APP has submitted that in the present case, there was
an authorization letter in making the raid and the Additional SP was himself
present. She has submitted that all the provisions of law were duly
complied with and the aspect of presence of Senior Officer is also proved
by the prosecution. She has highlighted the authorization letter by the
Deputy Superintendent of Police dated 21.05.2021 which was proved as
Exhibit 3. She has also submitted that in Exhibit 14, which is a copy of the
same order dated 21.05.2021, the signature of the learned CJM
Bongaigaon given thereof has been proved as Exhibit 14(1) and this has
also been reiterated in the cross-examination regarding the authority letter.
29. She has submitted that the GD entry which was made by Jyoti Lahon
(CW1), who was the O/C, was proved by PW5, the TSI of Bongaigaon PS,
the said GD Entry had also referred to seeking of authority letter from the
Dy. SP (HQ). As regards the contention made on behalf of the appellant
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that in the cross-examination, PW5 (TSI) had said that he did not inform
the Superior Officer in writing regarding the secret information and GD
Entry, the learned APP has submitted that the said TSI had informed the
matter to the Officer In-Charge and the said O/C had made the GD Entry.
She has also clarified that in the present case, it is Section 41 which is
applicable and not Section 42.
30. With regard to the provisions of Section 52A of the Act, the learned
APP has submitted that the said provision is mainly for representative
samples and not for samples for examination. She has submitted that there
is no requirement under the said provision to prepare the inventory in
presence of the Magistrate and such inventory is required to be taken to
and certified by the Magistrate which has been done in the instant case.
She has drawn the attention of this Court to the applications submitted on
22.05.2021 by the prosecution before the learned Magistrate and the
applications were respectively for certification, sending to the FSL and a
prayer to see the said materials seized. She has submitted that the
provisions of Section 52A of the Act has been duly complied with as due
certification was made by the learned Magistrate. She has highlighted that
in the order dated 22.05.2021 passed by the learned Magistrate, everything
was said to be duly certified.
31. On the submissions made regarding the chain of custody, the
learned APP has submitted that on 21.05.2021 at 10:00 P.M. the seized
materials had reached the concerned Police Station whereafter the
inventory was prepared and the materials were kept in the Maalkhana. On
the very next date i.e. 22.05.2021, the seized materials were brought to the
Court between 2.50 to 3:00 P.M. and the contraband was returned to the
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IO. It is submitted that the IO had accordingly kept the said contraband in
the Maalkhana and on the next date i.e. 23.05.2021, vide a covering letter
issued by the Additional SP, the samples which were drawn were sent to
the FSL.
32. Refuting the submissions that the independent witnesses did not
support the case of the prosecution, the learned APP has contended that
there were two independent witnesses, namely, PW1 and PW2. Though the
said witnesses did not specifically state from where the ganja was seized,
what is important is that the same was seized from the premises belonging
to the appellant. It is submitted that the exact spot of seizure may not be
absolutely relevant inasmuch as, as long as the said location is within the
premises of the appellant which is not disputed.
33. On the contention advanced on behalf of the appellant regarding
non production of the contraband, the learned APP has heavily relied upon
Section 52A wherein the provision of primary evidence has been laid down.
In this connection, she has placed reliance upon the case of State of
Rajasthan Vs. Sahi Ram [AIR 2019 SC 4723] and has submitted that
such non production of the contraband is not necessary, in view of the
aforesaid provision of law. She has also submitted that in the cases cited by
the appellant, there was no other proof and therefore there was a
requirement to produce the contraband seized unlike the case in hand. The
observation made in the case of Sahi Ram (supra), which reads as follows:
"17. If the seizure of the material is otherwise proved on record and
is not even doubted or disputed the entire contraband material need
not be placed before this Court. If the seizure is otherwise not in
doubt, there is no requirement that the entire material ought to be
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produced before the Court. At times the material could be so bulky,
for instance as in the present material when those 7 bags weighed
223 kgs that it may not be possible and feasible to produce the
entire bulk before the Court. If the seizure is otherwise proved, what
is required to be proved is the fact that the samples taken from and
out of the contraband material were kept intact, that when the
samples were submitted for forensic examination the seals were
intact, that the report of the forensic experts shows the potency,
nature and quality of the contraband material and that based on
such material, the essential ingredients constituting an offence are
made out."
34. The learned APP has also cited the case of G. Srinivas Gaud Vs.
State of A.P. [2005 (6) Supreme 623] and has relied upon the
paragraphs 9 and 10 to bring home the difference between Section 41 and
42 of the Act. For ready reference, the paragraphs 9 and 10 are extracted
hereinbelow-
"9. It will be seen from Section 41(2) that it refers to only officers
of gazetted rank and it is such officers who can authorise their
subordinates, not below the rank of peon, sepoy or constable, to
carry out arrest, search or seizure. The function of arrest, search
and seizure carried out under Section 42(1) is by officers who do
not have warrants or authorization in their hands before proceeding
to take action. This is as per the heading of the Section which
reads: "Power of entry, search, seizure and arrest without warrant or
authorization". Under Section 41 it is the specified Magistrates who
issue warrants of arrest and it is officers of gazetted rank who give
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authorisation in favour of their juniors. Provisions of sub- section (2)
of Section 42 are meant to cover cases falling under Section 42(1).
Therefore, in our view, the requirement under Section 42(2) need
not to be extended to cases of arrest, search and seizure by officers
of gazetted rank. The officer of gazetted rank while authorising
junior officers under Section 41(2) knows what he is requiring them
to do and, therefore, there is no need for reporting. For this
reason Section 41 does not contain any such requirement. The need
for reporting under Section 42(2) arises because the officer
proceeds without authorisation in terms of Section 41(1) or 41(2).
The requirement of informing the immediate official superior
under Section 42(2), in our view, has to be confined to cases where
the action is without authorisation by officers below the rank of
gazetted officers without authorisation.
10. It will be anomalous to say that officers of gazetted rank who
are conferred with power to authorise junior officers to carry out
arrest, search and seizure, are required to report to their superior
officers when they carry out arrest, search or seizure on their own.
As already seen the rationale for this provision of informing
superiors appears to be that when the arrest, search and seizure is
without authorisation by gazetted rank officers, the officers taking
action must keep their superiors informed. The superior officers
must know about the action taken by their subordinates. However,
the position of gazetted rank officers, in view of their rank and
seniority and power to authorise subordinates to proceed to action,
is totally different. They are the source of power of authorization.
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The gazetted rank officers enjoy special position and privileges
under the Act. They need not be equated to officers taking action
without authorisation or warrants. The requirement of sending
information to superior officers under sub-section (2) of Section
42 cannot be insisted upon in their case. There is no bar in the
statute to functions of arrest, search and seizure being carried out
by the officers of the gazetted rank themselves. When they act on
their own, they do not have to report to their seniors on such
things."
35. Reliance has also been placed upon the case of Sumit Tomar Vs.
State of Punjab [(2013) 1 SCC 395] wherein the aspect of mixing of
the seized contraband has been explained. It has been laid down that
mixing of seized contraband is not per se illegal unless prejudice can be
shown and in this case, there was no prejudice which was either
demonstrated or even pleaded. With regard to the wrong mentioning of a
statute or a provision of law, the learned APP has relied upon the case of J.
Kumaradasan Nair & Anr Vs. IRIC Sohan [(2009) 12 SCC 175] and
in this regard, the contents of paragraph 14 is pressed into service, which
reads as follows-
"14. It is also now a well-settled principle of law that mentioning of
a wrong provision or non-mentioning of any provision of law would,
by itself, be not sufficient to take away the jurisdiction of a court if it
is otherwise vested in it in law. ..."
36. With regard to the submission advanced by the appellant regarding
the requirement of duplicate samples, the learned APP has submitted that
there is no requirement in the Act for such provision. She has also
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explained that the present Rules of 2022 had come later and will have no
application as the case in hand is of a prior period. The learned APP has
also relied upon the case of Khet Singh Vs. Union of India [(2002) 4
SCC 380] and has contended that the Standing Orders do not have the
force in law. She has also submitted that in the present case, the samples
sent were intact. Reliance has also been placed in the case of Baldev
Singh Vs. State of Haryana [(2015) 17 SCC 554] on the aspect of
presumption under Sections 35 and 54. She has explained that mere denial
in the examination under Section 313 of the CrPC [corresponding to Section
351 BNSS] by the appellant accused cannot discharge the presumption
which can be drawn after laying of the foundational facts. She has
emphasized that in the present case, the foundational facts were duly laid
down.
37. The learned APP accordingly submits that the prosecution was
successful in bringing home the charges against the appellant and the
learned Trial Court was correct in passing the judgment of conviction and
sentence against the appellant and accordingly, the appeal is liable to be
dismissed.
38. In his rejoinder, Shri Biswas, the learned counsel for the appellant
has submitted that the Standing Order which was holding the field was
issued as per the requirement for statute and therefore, it cannot be
submitted that such Standing Order does not have the force of law. He has
also reiterated that in spite of Section 52A, many of the Courts are insisting
on production of the entire contraband as a primary proof. Reliance has
also been placed on the case of Karnail Singh (supra), mainly paragraphs
20 and 25 thereof, which reads as follows-
Page No.# 21/28
"20. Sub-section(1) of Section 41 of the 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 officers of departments of
Central Excise, Narcotics, Customs, Revenue Intelligence, etc.
25. A careful examination of the facts in Abdul Rashid and Sajan
Abraham shows that the decisions revolved on the facts and do not
really lay down different prepositions of law. In Abdul Rashid, there
was total non-compliance with the provision of section 42. The
police officer neither took down the information as required
under section 42(1) nor informed his immediate official superior, as
required by Section 42(2). It is in that context this Court expressed
the view that it was imperative that the police officer should take
down the information and forthwith send a copy thereof to his
immediate superior officer and the action of the police officer on the
basis of the unrecorded information would become suspect though
the trial may not be vitiated on that score alone. On the other hand,
in Sajan Abraham, the facts were different. In that case, it was very
difficult, if not impossible for the Sub- Inspector of police to record
in writing the information given by PW-3 and send a copy thereof
forthwith to his official superior, as the information was given to him
when he was on patrol duty while he was moving in a jeep and
unless he acted on the information immediately, the accused would
Page No.# 22/28
have escaped. The Sub-Inspector of Police therefore acted, without
recording the information into writing, but however, sent a copy of
the FIR along with other records regarding arrest of the accused
immediately to his superior officer. It is in these circumstances that
this Court held that the omission to record in writing the information
received was not a violation of Section 42."
39. Reiterating the aspect of requirement of independent witnesses, the
learned counsel for the appellant has submitted that in the present case,
the two independent witnesses did not support the official witnesses. He
has also relied upon the case of Union of India Vs. Mohanlal and Anr.
[(2016) 3 SCC 379] on the aspect of representative samples. In
paragraph 18 of the said judgment, there is an observation that the
Standing Orders were liable to be revisited and in paragraph 20, the
Hon'ble Supreme Court has discussed regarding paragraphs 3.2 to 3.9 of
the Standing Orders on the other aspects. He has again referred to the
case of Noor Aga (supra) on the aspect of non deposit of the facsimile
seal. He has also relied upon the case of Mohan Lal Vs. State of Punjab
[(2018) 17 SCC 627] and has submitted that the Standing Instructions
were having the statutory backing. He has particularly referred to
paragraphs 2.3, 2.4, 2.8, 3.4, 3.6 of the standing instructions. He has
submitted that such Standing Instructions have been violated in the instant
case, thereby vitiating the trial.
40. On the aspect of rebuttal evidence, the learned counsel has referred
to the case of Baldev Singh (supra). The learned counsel has submitted
that though violation of the provisions of Section 52A may not be fatal as
per the recent decision of the Hon'ble Supreme Court in the case of
Page No.# 23/28
Bharat Aambale Vs. State of Chhattishgarh [2025 INSC 78] not
making of duplicate samples would however be fatal to the case of the
prosecution.
41. The rival submissions have been duly considered and the materials,
including the LCR placed before this Court has been carefully examined.
42. Let us deal with the submissions advanced on behalf of the appellant
point wise. The first submission is with regard to the initiation of the case
itself. The records reveal that on 21.05.2021, a GD Entry was recorded by
PW5 who is the Sub Inspector of Police and on 22.05.2021, the FIR was
lodged by the said PW5 in which not only the GD Entry was mentioned,
there was also full narration of the facts. The FIR clearly mentions about
recovery and seizure of 25.563 KGs of ganja. Though the learned counsel
has submitted that there has been violation of the statute regarding the
information which is to be given to Senior Officers, the records would show
that in the search operation itself, the O/C Bongaigaon and Dy. SP (HQ),
Bongaigaon was themselves present. The GD Entry (Exhibit 2) also reveals
that the information was given to the Superior Officer who had accordingly
come to the place of occurrence before the raid and seizure was made.
43. With regard to the submission that the independent witnesses
namely, PW1 and PW2 did not support the case of the prosecution, we
have seen that two independent witnesses namely, PW1 and PW2 were
present at the time of the search. Though in the cross-examination, the
independent witnesses had stated that they did not see the exact spot from
where the ganja was seized, there is nothing on record to refute the
prosecution's case that the seizure was done from the premises of the
appellant himself and there is not even a suggestion that such recovery was
Page No.# 24/28
made from outside the premises. The version of both PW1 and PW2
appears to be consistent and therefore, we cannot accept the contention
made on behalf of the appellant regarding any inconsistencies on their
versions.
44. On the aspect that the inventory which was prepared, namely,
Exhibit 7 was not certified by the Magistrate, we have checked the original
records and from the same, we have found that there is a due certification
by the Magistrate. In fact, the record was also handed over to the learned
counsel for the appellant who was satisfied from the same and had clarified
that the same submission was made as because in the certified copy, the
last part was not properly photocopied wherein the signature was left out.
Regarding the contention that the chain of custody was unexplained, we
have seen that the chronology of events would show that the search and
recovery were made on 21.05.2021 and pursuant to the FIR lodged on
22.05.2021, the application before the Magistrate for certification, for
sending, for forensic test and with the prayer "to see" were made by
different applications on 22.05.2021 itself. The learned Magistrate had
certified on 22.05.2021 itself on which date, the samples were also
prepared and sealed, whereafter the same was sent to the FSL by a
forwarding letter by the Additional SP using the facsimile seal of the Office
of the Superintendent of Police, Bongaigaon. It is correct on the part of the
appellant to contend that the messenger - Girish Ch. Baruah was not
examined by the prosecution. We have examined the said submission and
have come to the conclusion that such non-examination of the messenger
would not be fatal to the case of the prosecution inasmuch as, the Forensic
Officer as PW9 has narrated the entire sequence of events pursuant to
Page No.# 25/28
receiving of the parcel.
45. Much emphasis has been laid on the aspect that the samples were
marked as A1, B1, C1 whereas the forwarding letter by the Additional SP
dated 23.05.2021, the samples were termed as A, B and C. We are
however of the view that the same is a trivial point and mere reference to
the samples in the forwarding letter dated 23.05.2021 as exhibits A, B and
C cannot be held to be inconsistent inasmuch as, the samples which were
drawn were sent in another envelope containing the facsimile seal of the
Office of the Superintendent of Police, Bongaigaon. What is significant is
that the Scientific Officer as PW9 had clearly described the three samples
as Exhibits A1, B1 and C1 and there is absolutely no ambiguity.
46. The learned counsel for the appellant has laid emphasis on the fact
that the Forensic Officer in his deposition as PW9 had talked about the
facsimile seal of the Superintendent of Police, Bongaigaon and not about
the facsimile seal of the CJM, Bongaigaon. In this regard, it is necessary to
examine properly the deposition of PW9, who had clearly stated that he
had received a sealed envelope cover and the said deposition is consistent
with the deposition of PW8 who had proved Exhibit 15 which is the
forwarding letter dated 23.05.2021. We are of the opinion that there are no
inconsistencies regarding the facsimile seals as the three samples which
were put in three different packets were later on put in a single envelope
while sending it to the FSL from the Office of the Superintendent of Police,
Bongaigaon.
47. A submission has been made that there is inconsistency with the
drawing of samples inasmuch as, PW6 who is a Staff of the CJM,
Bongaigaon had deposed that he had prepared the three sample packets,
Page No.# 26/28
PW7 who is an Office Peon of the Superintendent of Police, Bongaigaon had
said that the Police had prepared the three samples. We have carefully
gone through the deposition of PW6 and PW7. The drawing of samples
were undoubtedly done in the Court of the learned CJM, Bongaigaon which
was also duly certified by the learned CJM. While preparing the said
samples, the involvement of the Staff of the CJM (PW6) is an acceptable
proposition while the said preparation was done by the Police with such
assistance. We are also unable to accept the said submission inasmuch as,
the sampling was done in presence of the Magistrate who had duly certified
the same.
48. With regard to the submission that the seized contraband was not
produced in the Court, we are of the opinion that in view of the provisions
of Section 52A of the Act, such production of the contraband in original is
not at all necessary. Section 52A (4) clearly states that such inventory,
photographs and any list of samples which have been duly certified by the
Magistrate are to be treated as primary evidence notwithstanding anything
contained in the Indian Evidence Act or the CrPC. The said subsection
starts with a non obstante clause and has been introduced by the
Amendment in 1989 which is mainly on the aspect that the seized
contraband are required to be disposed of and for the purpose of proving
the same, a duly certified inventory, photographs and list of samples by the
Magistrate are to be treated as primary evidence. For ready reference
Section 52A (4) is extracted hereinbelow.
"52A(4) Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of
1974), every court trying an offence under this Act, shall treat the
Page No.# 27/28
inventory, the photographs of narcotic drugs, psychotropic
substances, controlled substances or conveyances and any list of
samples drawn under subsection (2) and certified by the Magistrate,
as primary evidence in respect of such offence."
49. Regarding the case cited on drawing of duplicate samples namely,
Vijay Jain (supra), the facts are distinguishable inasmuch as, in the case
in hand the samples were indeed drawn. So far as the case of Jitendra
(supra) is concerned, wherein the panchnamas had turned hostile and
therefore the primary evidence should have been produced, the facts are
entirely different inasmuch as, in the present case, the primary evidence,
namely, the list of samples was duly proved. In the case of Noor Aga
(supra), non production of the physical evidence was taken into
consideration whereas in the instant case, there is primary evidence duly
certified by the Magistrate in accordance with Section 52A of the Act.
50. We are also agreeable to the submission made by the learned APP
regarding the information which was given by the concerned Police Officer.
The submission that such information is to be treated to be under Section
57 and not 42(2) is acceptable as mentioning of a wrong provision of a
statute will not be fatal. We have also noted that in the cases cited by the
appellant regarding the requirement to produce the seized contraband
before the Court, there were no other proof whereas in the case in hand,
the primary evidence in accordance of Section 52A of the Act is available.
On the aspect of the presumption under the Act, we have examined the
records and have come to the conclusion that the presumption would duly
apply as the foundational facts were properly established. We are also
agreeable to the submissions made that mere denial in the examination
Page No.# 28/28
under Section 313 [corresponding to Section 351 BNSS] cannot overcome
the presumption.
51. In the conspectus of the aforesaid discussion and the materials on
record, we are of the view that the conclusion arrived at by the learned
Special Judge, Bongaigaon in convicting and sentencing the appellant vide
judgment and order dated 30.09.2022 passed in Special (Nar) Case No.
46(BGN)/2021 does not warrant any interference.
52. The appeal is accordingly dismissed.
53. Send back the LCRs.
JUDGE JUDGE
Comparing Assistant
