Tripura High Court
Shri Pradip Kumar Roy vs The State Of Tripura on 5 February, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)01 of 2023
Shri Pradip Kumar Roy,
son of late Sindhu Gopal Roy,
resident of Kumarghat,
Hospital Chowmuhani,
P.S. Kumarghat,
District- Unakoti Tripura,
(Permanent address : Melagarh),
P.S. Melagarh, District- Sepahijala Tripura
---- Appellant(s)
Versus
The State of Tripura,
represented by the Secretary,
Department of Home,
Government of Tripura, Agartala
---- Respondent(s)
For Appellant(s) : Mr. S. Kar Bhowmik, Sr. Adv.
Mr. S. Datta, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of Hearing : 16.01.2024
Date of Judgment
& Order : 05.02.2024
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
(Biswajit Palit, J)
Heard Mr. S. Kar Bhowmik, Learned senior counsel assisted
by Mr. S. Datta, Learned counsel appearing for the appellant as well as
Mr. S. Debnath, Learned Additional P.P. appearing for the State-
respondent.
2. This is an appeal under Section 374(2) of Cr.P.C. is filed
challenging the judgment and order of conviction and sentence dated
20.12.2022 passed by Learned Special Judge (NDPS), Dhalai Judicial
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District, Ambassa in connection with case No.Special (NDPS)27/2019
wherein the Learned Special Judge convicted and sentenced the convict-
appellant under Section 21(C) of the NDPS Act, 1985 to suffer R.I for 10
years and with fine of Rs.1,00,000/- i.d to suffer R.I for six months and
under Section 25 of the NDPS Act, 1985 to suffer R.I for 10 years and
with fine of Rs.1,00,000/- i.d to suffer R.I for a period of six months and
both the sentences shall run concurrently.
3. The case of the prosecution before the Learned Special
Judge was that on 29.08.2019 one sub-Inspector of Police, Makhan Das
of Ambassa Police Station lodged one suo-moto complaint to the Officer-
in-Charge of Ambassa Police Station alleging, inter alia that on
29.08.2019 at about 10:45 hrs. when the complainant accompanied by
Sub-Inspector Manoj Kumar Pal and other police personnel were
performing vehicle checking duty at Ambassa near Chandraicherra bridge
on NH-08 road vide Ambassa PS GD Entry No.14, dated 29.08.2019 and
at about 11:40 hrs., they found one orange colour DATSUN GO-T car
proceeding from Manu to Agartala with high speed and accordingly, they
gave signal to stop the vehicle but the driver tried to escape from the
place and ultimately, the police personnel detained the vehicle and found
that temporary number TR01-AT(TEM)6865 was fixed on the front glass.
Accordingly, the complainant prepared vehicle checking memo at spot
and during checking, 12 numbers of different size cartons/packets
containing ESKUF cough syrup were recovered. Immediately the
complainant informed the matter to SDPO, Ambassa and Officer-in-
Charge of Ambassa Police Station. Complainant also sent a message to
Superintendent of Police, Dhalai seeking permission to conduct search
and seizure. After some time SDPO, Ambassa and Officer-in-Charge of
Ambassa Police Station rushed to the spot with investigation kit box, i.e.,
laptop, gala, seal etc, and the complainant prepared pre-search memo in
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presence of SDPO, Ambassa and other independent witnesses.
Complainant and other members of search team got themselves
physically searched by local witnesses. During search, complainant
recovered 1394 bottles codeine based ESKUF Cough Syrup of different
batch numbers containing 100 ml in each bottle from the vehicle of
accused Pradip Kumar Roy. Accordingly, complainant seized the
contraband articles along with sale certificate, tax invoice, delivery
report, trade certificate, temporary certificate, insurance certificate,
driving licence and Aadhar card of appellant-accused Pradip Kumar Roy
under a proper seizure list in presence of witnesses. Thereafter, the
complainant arrested the accused and after returning back to police
station lodged the suo-moto complaint against the appellant, accused
person of this case. On receipt of FIR, Shri Dinesh Debbarma, Sub-
Inspector of Police being the I/C, Officer-in-Charge of Ambassa Police
Station registered Ambassa Police Station case No.2019 ABS 044 dated
29.08.2019 for the commission of offence punishable under Section
21(C)/25/29 of the NDPS Act, 1985 against the appellant-accused and
the case was endorsed to SI Manoj Kumar Paul for investigation. The IO
conducted investigation of the case and after completion of investigation
laid charge-sheet against the present appellant of this case. On receipt of
charge-sheet cognizance of offence was taken by the Learned Special
Court and after compliance of the provision of Section 207 of Cr.P.C.
charge under Section 21(C)/25/29 of NDPS Act was framed against the
accused appellant by the Learned Special Judge and the same was
explained to him in Bengali to which he pleaded not guilty and claimed to
be tried.
4. To substantiate the charge, the prosecution before the
Learned Special Court adduced in total 12 number of witnesses and the
prosecution also relied upon some documents which were marked as
Page 4 of 33
exhibits in the case and after conclusion of trial, the Learned Special
Judge found the appellant guilty and convicted him and sentenced him as
aforesaid.
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES
A. Prosecution :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
PW-1 Shri Makhan Das Complainant
PW-2 Shri Pankaj Debnath Seizure Witness
PW-3 Sri Prasenjit Acharjee Police Witness & Seizure Witness
PW-4 Shri Joydeb Das Seizure Witness
PW-5 Shri Ganesh Tripura Seizure Witness
PW-6 Shri Asish Dasgupta SDPO
PW-7 Shri Nirode Lal Das Police Witness & Seizure Witness
PW-8 Shri Nantu Deb, Seizure Witness
PW-9 Shri Gopal Chandra Independent Witness
Biswas,
PW-10 Shri Dinesh Debbarma Police Witness
PW-11 Shri Satyabrata Expert Witness
Bhattacharjee
PW-12 Shri Manoj Kumar Paul Investigating Officer
B. Defence witnesses, if any : Nil
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
Nil Nil Nil
C. Court Witnesses, if any :- Nil
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
Nil Nil Nil
LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS
A. Prosecution :
Sl. No. Exhibit Number Description
01. Exhibit 1 Search memo along with signature
of PW-1 on the search memo
02. Exhibit 1/1 Signature of PW-4 on the search
memo
03. Exhibit 1/2 Signature of PW-6 on the search
memo
04. Exhibit 2 Seizure list along with signature of
PW-1 on the seizure list
05. Exhibit 2/1 Signature of PW-4 on the seizure list
06. Exhibit 2/2 Signature of PW-6 on the seizure list
07. Exhibit 2/3 Signature of PW-8 on the seizure list
08. Exhibit 3 Inventory prepared by PW-1 along
with signature of PW-1 on the
inventory
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09. Exhibit 3/2 & 3/3 Signature of PW-6 on the inventory
10. Exhibit 3/4 Signature of PW-8 on the inventory
11. Exhibit 4 Ejahar along with signature of PW-1
on the ejahar
12. Exhibit 4/1 Registration endorsement with
signature of PW-10 on the ejahar
13. Exhibit 5 Signature of PW-2 on the re-seizure
list
14. Exhibit 5/1 Signature of PW-3 on the re-seizure
list
15. Exhibit P-6 Seizure list dated 03.09.2019
16. Exhibit 6 Signature of PW-5 on the seizure list
17. Exhibit 6/1 Signature of PW-7 on the seizure list
18. Exhibit P-6/2 Signature of PW-12 on the seizure
list
19. Exhibit 7 Endorsement and signature of PW-6
on the Drug Testing Laboratory
report
20. Exhibit 9/1 Signature of PW-8 on the motor
vehicle checking form
21. Exhibit P-10 Printed FIR
22. Exhibit P-10/1 Signature of PW-10 on the printed
FIR
23. Exhibit P-11 (as a Report of Drug Testing Laboratory
whole) to P-14 (as a
whole)
24. Exhibit P-15 Forwarding of Drug Testing
Laboratory
25. Exhibit P-15/1 Signature of PW-11 on the
forwarding of Drug Testing
Laboratory
26. Exhibit P-16 (as a Hand-sketch map with signature of
whole) PW-12
27. Exhibit P-17 (as a Index of hand-sketch map with
whole) signature of PW-12
28. Exhibit P-18 Seizure list dated 29.08.2019
29. Exhibit P-18/1 Signature of PW-12 on the seizure
list dated 29.08.2019
30. Exhibit P-19 Inventory prepared by PW-12
31. Exhibit P-19/1 Signature of PW-12 on the inventory
32. Exhibit P-20(as a Certificate of correctness of the
whole) inventory
33. Exhibit P-21, P-21/1 Photographs
and P-21/2
B. Defence : Nil
Sl. No. Exhibit Number Description
Nil Nil Nil
C. Court Exhibits : Nil
Sl. No. Exhibit Number Description
Nil Nil Nil
D. Material Object : Nil
Sl. No. Exhibit Number Description
Nil Nil Nil
5. In course of hearing of argument, Mr. S. Kar Bhowmik,
Learned senior counsel appearing for the appellant submitted before the
Court that the prosecution has miserably failed to establish the charge
leveled against the appellant of this case. Learned senior counsel at the
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time of hearing of argument first of all draw the attention of the Court
that the prosecution has been failed to comply with the provisions of
Section 42 and Section 52(A) of NDPS Act against the appellant. But the
Learned Court below without considering the aforesaid provisions of the
NDPS Act just on the basis of evidence on record convicted the appellant
for which he urged before the Court for interference and prayed for
acquittal of the accused-appellant from the conviction and sentence
imposed upon him.
6. Learned senior counsel in course of hearing has referred the
Court the evidence of all the witnesses of the prosecution and submitted
that in this case no malkhana register have been produced by the
prosecution, no inventory was prepared on the spot, certificate of
inventory was defective, no charge under Section 179 of MV Act was
framed by the Learned Special Court, the seized Alamat were not duly
packed and sealed, no R/G as stated by the prosecution was produced
and proved by the prosecution, no independent eye witness were
adduced by the prosecution to substantiate the charge against the
appellant. Because all the witnesses were the police personnel and they
are/were interested witness. SDPO, Ambassa was only cited as the
witness but he did not take part in the investigation.
7. Finally, Learned senior counsel submitted that since there
was total non-compliance of the provision of Section 42 and Section
52(A) of the NDPS Act, so the prosecution has miserably failed to
substantiate the charge leveled against the accused-appellant but the
Learned Special Judge without considering all the aforesaid points has
passed an erroneous judgment which needs to be set aside. He has also
relied upon few citations and referring those citations, he submitted that
in view of the principles of the said citations, there is no scope to sustain
Page 7 of 33
conviction against the appellant and prayed for acquittal of the accused
appellant in this case.
8. On the other hand, Mr. S. Debnath, Learned Addl. P.P.
appearing for the State-respondents submitted that this is a case where
the prosecution both by oral/documentary evidence on record has been
able to prove the charge against the appellant and the Learned Special
Judge after due consideration of the evidence on record of the
prosecution rightly and reasonably delivered the judgment against the
appellant and urged before the Court to uphold the order of conviction
and sentence against the appellant of this case.
9. We have heard detailed argument of Learned counsels of
both sides at length and gone through the evidence on record. However,
before appreciating the submissions made by the Learned counsel of
both the parties, let us consider the evidence on record adduced by the
prosecution to substantiate the charge leveled against the appellant of
this case.
10. PW-1, Shri Makhan Das who was posted as S.I. of Police of
Ambassa police station deposed that on 29.08.2019 at about 10:45 a.m.
he along with Sub-Inspector Shri Monoj Kumar Paul and other police staff
of Ambassa police station went out for performing vehicle checking duty
at Ambassa near Chandrai Cherra bridge vide Ambassa police station GD
entry No.14 dated 29.08.2019 and when they were performing their
duties at around 11:40 a.m., they found one orange coloured Maruti car
bearing No.TR-01-AT(TEM)-6865 coming towards Ambassa from
Dharmanagar side and on suspicion, they detained and sent one written
R/G to the SP, Dhalai seeking permission to search and seizure and
accordingly, on receipt of the permission, he informed the Sub-Divisional
Police Officer, Ambassa to come to the spot and when SDPO, Ambassa
came to the spot, they searched the car in front of him and other
Page 8 of 33
witnesses and recovered twelve numbers of brown coloured paper made
packets containing 1394 bottles of codeine based cough syrup from the
back dickey of the car by preparing search memo and identified the
search memo prepared by him marked as Exbt.1. Thereafter, they seized
the same by preparing seizure list and identified the seizure list marked
Exbt.2. The inventory was also prepared at the spot and the witness
identified the inventory (two pages) prepared by him marked as Exbt.3.
After that, seized the cough syrup bottles, car and its driver namely Shri
Pradip Kumar Roy alias Sanjoy Roy and thereafter brought the accused
to the police station and handed over the accused to the Officer-in-
Charge of Ambassa police station along with a written complaint against
the driver for registration of a case under Section 21(c)/25/29 of NDPS
Act, 1985 and identified his signature in the complaint marked as Exbt.4.
During cross-examination, he stated that he informed the
Sub-Divisional Police Officer, Ambassa and Officer-in-Charge of Ambassa
police station over telephone from the spot. Sub-Inspector Manoj Kumar
Paul was present at the spot at the time of seizure. Sub-Inspector Shri
Monoj Kumar Paul was one of the members of the checking duty team.
He did not check the papers of the car before searching the vehicle and
he suspected the vehicle on the basis of temporary number pasted on
the glass. He did not obtain any written statement of the driver. He also
did not make any statement to the IO about the confession given by the
driver for having possession of cough syrup inside the car. At the time of
seizure, photograph was taken. Again stated that he did not draw any
sample at the spot and he did not enclose the detailed report of seizure
and written R/G sent to SP, Dhalai along with the complaint. Sub-
Inspector, Shri Monoj Kumar Paul is the in-charge of Malkhana Police
Station. He received the seized articles at the police station from him
being the in-charge of the Malkhana. The detained car was of a private
Page 9 of 33
one. The accused Shri Pradip Kumar Roy was not the owner of the car,
but he was a driver. No FIR was lodged against the owner of the car.
11. PW-2, Shri Pankaj Debnath deposed that on 29.08.2019 he
was posted as i/c, Traffic Unit of Ambassa police station. On that day, at
around 11:40 a.m., he along with officers and staff of Ambassa police
station were on vehicle checking duty at Chandrai Cherra bridge area and
at that time, one driver with Dutsun-Go-T car bearing No.TR-01-
AT(TEM)-6865 (Orange colour) was found coming from Dharmangar side
and due to his inconsistent reply, they suspected him and accordingly,
the car was detained and at that time, the accused confessed that he
was carrying Escuf cough syrup inside the car. Thereafter, Sub-Inspector
Shri Makhan Das completed the legal formalities and informed the
officer-in-charge of Ambassa police station and Sub-Divisional police
officer, Ambassa and subsequently, the car was searched and from the
car, twelve packets containing 1394 bottles of Escuf cough syrup were
recovered. The vehicle related papers were collected from the car and
the driver was arrested and shifted to the police station. In the police
station, Sub-Inspector Shri Monoj Kumar Paul re-seized the seized
articles by preparing re-seizure list (two pages) and he put his signature
and identified his signature marked Exbt.5.
During cross-examination, he stated that there is no specific
mention in the re-seizure list indicating that the car from where the
contrabands were seized. He did not put any signature in the seizure list
at the spot. One Shri Prasenjit Acharjee was also on duty on that day
with him. Sub-Inspector Shri Monoj Kumar Paul, the Investigating Officer
was also present at the spot on that day. Apart from that, SI Shri Monoj
Kumar Paul, Investigating Officer, SI Shri Makhan Das, complainant and
SI Shri Prasenjit Acharjee were also present at the spot. But re-seizure
Page 10 of 33
was not made to the PO. Nothing more came out relevant from his cross-
examination.
12. PW-3, Shri Prasenjit Acharjee deposed that on 29.08.2019
he was posted as Sub-Inspector of Police in the Traffic Unit, Ambassa.
On that day, at around 11:30 a.m. he along with In-charge of Traffic Unit
namely Shri Pankaj Debnath, Sub-Inspector and staff of Ambassa police
station were performing vehicle checking duty at Chandrai Cherra bridge
area and at that time, one driver with Dutsun-Go-T car bearing No.TR-
01-AT(TEM)-6865 (Orange colour) was found coming from Dharmanagar
side and due to his inconsistent reply, they suspected him and
accordingly, the car was detained and at that time, they found from
outside that some cartons containing bottles of cough syrup were inside
the car. Thereafter, Sub-Inspector Shri Makhan Das completed the legal
formalities and informed the matter to officer-in-charge of Ambassa
police station and Sub-Divisional Police Officer, Ambassa and
subsequently, the car was searched and from the car twelve cartons
containing 1340 bottles of Escuf cough syrup was recovered. The vehicle
related papers were also collected from the car and the driver was
arrested and shifted to the police station. In the police station, Sub-
Inspector Shri Monoj Kumar Paul re-seized the seized articles by
preparing re-seizure list (two pages) and he identified his signature on
the re-seizure list marked Exbt.5/1 and he was not the seizure witness at
the time of seizure of the contraband articles. He was confronted with
the statement that he stated to IO that the search was conducted after
arrival of the Sub-Divisional Police Officer but the same statement was
not found in his statement recorded under Section 161 of the Cr.P.C.
13. PW-4, Shri Joydeb Das deposed that on 29.08.2019 he was
going towards Ambassa Town Hall crossing Chandrai Cherra bridge and
at that time, he found that one orange coloured car was detained by the
Page 11 of 33
police and in the mean time, some other police personnel also came to
the spot and being asked by the police, he put his signature on the
seizure list. He identified his signature on the search memo marked
Exbt.1/1. Thereafter, police recovered huge quantity of bottles of cough
syrup from the car and seized it along with related papers of the car by
preparing seizure list and on that seizure list, he put his signature. He
identified his signature on the seizure list marked Exbt.2/1. Police
prepared the inventory and on the inventory he put his signature and
identified his signature marked as Exbt.3/1.
During cross-examination, he deposed that the car detained
was Alto car and Ambassa police opened the door of the car after higher
police officers reached to the spot and seized the contraband goods.
14. PW-5, Sri Ganesh Tripura deposed that on 03.09.2019 he
was posted as Constable of Police in the Crime Section of SP Office. On
that day, SI Manoj Kumar Paul seized written detailed report and one
R.G. sent by SI Makhan Das to the SP, Dhalai by preparing seizure list
produced by him and on that seizure list he put his signature and
identified his signature marked Exbt.6.
During cross-examination, nothing came out relevant.
15. PW-6, Shri Asish Dasgupta, deposed that on 29.08.2019 he
was posted as Sub-Divisional Police Officer, Ambassa. On that day, he
was informed telephonically by the O/C, Ambassa police station that one
Dutsun-GT car was detained by them at Chandrai Cherra bridge area
during vehicle checking duty. Then he went to the spot and after search,
1394 bottles of cough syrup was recovered from that car and search
memo was prepared by Sub-Inspector Shri Makhan Das and on that
search memo, he put his signature. He identified his signature on the
search memo marked Exbt.1/2. Thereafter, the contraband goods were
seized by preparing seizure list and on the seizure list, he put his
Page 12 of 33
signature and identified his signature on the seizure list marked
Exbt.2/2. Inventory (two pages) was also prepared by Sub-Inspector
Shri Makhan Das at the spot in his presence and he also identified his
signature on the inventory marked Exbt.3/2 and Exbt.3/3. The sample
drawn was sent to the Drug Testing Laboratory, Ghorkhabasti on
04.09.2019 and the report was received on 16.10.2019 from the Drug
Testing Laboratory and thereafter, the same was sent to the
Investigating officer of the case with an endorsement on the body of the
report. This is his endorsement with the signature on the report marked
as Exbt.7. He identified the accused.
During cross-examination, he deposed that when the vehicle
was detained he was not present to the PO. No sample was drawn from
the spot. Nothing more came out relevant from his cross-examination.
16. PW-7, Shri Nirode Lal Das deposed that on 03.09.2019 he
was posted in the Office of the Superintendent of Police, Dhalai District in
Crime Section as a police constable. On that day, at about 12:05 hrs. SI
Monoj Kumar Paul of Ambassa PS came to the Office of Superintendent
of Police and seized one written detailed report and one original R/G by
preparing a seizure list in his presence on production of documents by
Shri Ganesh Tripura and the witness identified his signature on the
seizure list marked as Exbt.6/1.
During cross-examination nothing came out relevant.
17. PW-8, Shri Nantu Deb deposed that on 29th August, 2019 at
about 11/11:30 a.m. he was present at Ambassa Bazar. That time, he
saw so many people to proceed towards Chandrai Para Bridge on
National Highway No.8 to see something. Accordingly, he also visited
that place to see the matter and found that some police personnel had
detained one Datsun vehicle on the road. He could not say the number of
the vehicle and when he arrived to the PO, he saw the driver of the
Page 13 of 33
vehicle who was cordoned by the police personnel. At that time, he saw
the police personnel to search their bodies by independent witnesses and
when no contraband articles were found in the possession of the police
personnel, they proceeded to search the detained vehicle in presence of
him and so many independent witnesses. In their presence, police
recovered twelve cartons of Escuf cough syrup bottles from the detained
car. The driver of the vehicle could not show any paper regarding those
Escuf cough syrup bottles to the police personnel. Accordingly, police
seized the recovered contraband articles, one I-card of the driver, driving
license and some other personal belongings of the driver including the
detained vehicle by preparing a seizure list in presence of him and others
and obtained his signature on that seizure list and the witness identified
his signature on the seizure list marked Exbt.2/3. Police also obtained his
signatures on some other papers. His signature on the Motor Vehicle
Checking Form dated 29.08.2019 was marked as Exbt.9/1 and the
signature on the inventory dated 29.08.2019 marked as Exbt.3/4. He
could not identify the driver.
During cross-examination, he has stated that he had no
idea about the contents of the papers wherein his signatures were
obtained by police. Nothing came out more relevant from his cross-
examination.
18. PW-9, Shri Gopal Chandra Biswas deposed that about two
years nine months back, at about 11:30 a.m., some police personnel
detained one orange colour Alto car near the bridge on river Dhalai
adjacent to Chandrai Para School. That time on Pradip Kumar Roy was
the driver of the said Alto car. He got a betel nut shop near the bridge on
river Dhalai and Chandrai Para School and that time, he was in his shop.
He was called by police and thereafter, police unloaded 10/12 cartons of
cough syrup but the accused-driver could not give any satisfactory
Page 14 of 33
explanation with regard to the presence of huge cartons of cough syrup
in his vehicle. Thereafter, police arrested Pradip Kumar Roy and brought
him to Ambassa Police Station along with the vehicle and the cartons of
the cough syrup and identified the accused.
During cross-examination, he stated that his signature was
not taken in the seizure list.
19. PW-10, Sri Dinesh Debbarma deposed that on 29.08.2019
he was posted as Sub-Inspector of Police and Officer-in-Charge of
Ambassa Police Station and on that day, upon receipt of suo-moto
complaint of Sub-Inspector Makhan Das of Ambassa Police Station
against accused Pradip Kumar Roy, he registered Ambassa PS case
No.2019 ABS 044 under Section 21(c)/25/29 of NDPS Act, 1985 and he
identified the suo-moto complaint of Sub-Inspector of Makhan Das of
Ambassa Police Station marked Exbt.4/1. He has also filled up the FIR
form marked Exbt.P/10 and his signature on the printed FIR form
marked Exbt.P-10/1. He endorsed the case to SI Monoj Kumar Paul for
investigation.
During cross-examination nothing came out relevant.
20. PW-11, Shri Satyabrata Bhattacharya deposed that on
06.09.2019 he was posted at State Drugs Testing Laboratory, Agartala
as Junior Scientific Officer and Government Analyst. On that day, their
office received sample "Eskuf Cough Syrup" marked Exbt.D1, Exbt.C1,
Exbt.B1 and Exb.A1 and the result of investigation of exhibits [D-1, C-1,
B-1 and A-1] was positive for the presence of Codeine Phosphate and
Chlorpheniramine Maleate. Thereafter, he prepared the reports vide
No.2139/SDPO/Ambassa/2019 dated 04.09.2019 and also identified his
reports marked Exbt.P/11 (as a whole), Exbt.P/12(as a whole),
Exbt.P/13(as a whole) and Exbt.P/14 (as a whole). He forwarded the
reports to SDPO, Ambassa. He also identified his forwarding vide
Page 15 of 33
No.F.14(29) DCA/19/4921-22 dated 23.09.2019 marked Exbt.P/15 and
his signature of Exbt.P-15/1.
During cross-examination save and except denial nothing
relevant came out.
21. PW-12, Manoj Kumar Pal is the IO. He deposed that on
29.08.2019 he along with Sub-Inspector Makhan Das and other Police
Station staff while performing vehicle checking duty at Chandraicherra
Bridge on National Highway could noticed a vehicle having temporary
No.TR-01-AT-(TEM)-6865 proceeding towards Agartala from Manu side
little bit on high speed, as such, they stopped the vehicle and talked with
the driver but he was hesitating and thereby on suspicion they checked
the vehicle and could recover 12 Nos. of cartons of Eskuf cough syrup of
different batch numbers and the driver failed to show any documents.
The driver was Pradip Kumar Roy and he disclosed that he was taking
the consignment to Agartala to smuggle the same to Bangladesh. Sub-
Inspector Makhan Das arrested the accused person on the spot and
seized the contrabands in presence of the witnesses and himself.
Thereafter, after observing all the formalities he submitted suo-moto
complaint to Officer-in-Charge of Ambassa Police Station and case was
registered and he took up the investigation of the present case on
29.08.2019 as endorsed by the then Officer-in-Charge namely Dinesh
Debbarma, Sub-Inspector of Police of Ambassa Police Station. He visited
the place of occurrence and prepared the hand sketch map and the index
and indentification hand-sketch map marked as Exbt.P/16(as a whole)
and Exbt.P/17(as a whole). He recorded the statements of witnesses
under Section 161 of Cr.P.C. On 29.08.2019 he re-seized the said
vehicle, Sale Certificate of the said vehicle and some other documents by
preparing a seizure list in presence of witnesses and identified the
seizure list marked Exbt.P/18 and the signature of the witness on the
Page 16 of 33
seizure list marked Exbt.P-18/1. On 03.09.2019 he seized a detailed
report and a radiogram message under a proper seizure list in presence
of the witnesses and identified the seizure list marked Exbt.P/6 and the
signature of the witness on the seizure list marked Exbt.P-6/2. On
30.08.2019 inventory was prepared by him and the contraband and the
other seized materials were produced before the Learned Magistrate with
a prayer for sampling and correctness of the inventory and photographs
of sampling etc., by the Learned Magistrate and identified the inventory
marked as Exbt.P/19 and his signature of the witness on the inventory
marked Exbt.P-19/1. He identified the certificate of correctness of the
inventory of the seized contraband which bears the signature of the
Learned Magistrate and on identification the certificate of correctness of
the inventory of the seized contraband marked Exbt.P/20(as a whole)
and also identified the photographs taken by him and certified by the
Learned Magistrate and on identification the photographs marked as
Exbt.P-21, Exbt.P-21/1 and Exbt.P-21/2. The photographs [Exbt.P-21,
Exbt.P-21/1 and Exbt.P-21/2] were duly certified by the Learned
Magistrate. After completion of investigation he laid charge-sheet against
the accused-appellant and identified the accused in the dock.
During cross-examination nothing came out relevant.
22. As already stated at the time of hearing Learned senior
counsel for the appellant drawn the attention of the Court referring non-
compliance of the provision of Section 42 and Section 52(A) of NDPS Act
by the prosecution and submitted that since from the very beginning
there were lack of procedural irregularities conducted by the prosecution
and regarding those irregularities, the prosecution before the Trial Court
could not explain anything for which judgment against the appellant
cannot sustain and submitted that on the day of alleged occurrence all
though, according to the prosecution, SDPO was present to the PO but
Page 17 of 33
he was simply cited as a witness but he did not take part in the
investigation which vitiates the trial. In this regard, Learned senior
counsel has relied upon one citation of our High Court in Goutam Dutta
versus State of Tripura reported in 2017 (1) TLR 90 wherein in para-
23 the Hon'ble High Court has observed as under :
"23. It is quite apparent from the fact of the
present case that information was first received by
PW8, an Inspector of BSF. He did not record the
information and simply passed on the information
to PW1, SI of Police of Bishalgarh P.S He recorded
the information in G.D (Exbt.11). The copy of that
G.D was not forwarded to S.D.P.O He informed
S.D.P.O over telephone and S.D.P.O participated in
the detention, search and seizure. Simply because
S.D.P.O participated in the detention, search and
seizure as a witness, does it amount to substantial
compliance of Section 42(2) of NDPS Act, is the
crucial question here, which in our considered
opinion, in view of the discussions held above, was
not a compliance in accordance with law. Giving of
information orally to the superior officer, without
sending a copy as required by law, cannot be said
to be a compliance of the provision of law in its
strict sense. Since the copy of the entry was not
forwarded to the immediate official superior of the
recording officer, the prosecution case suffers from
serious infirmity which vitiates the trial."
Relying upon the said citation, Learned senior counsel has
submitted that mere presence of SDPO as a witness would not amount to
substantial compliance of Section 42(2) of NDPS Act.
23. Learned senior counsel further submitted that non-collection
of samples at the initial stage and non-sealing of the contrabands after
seizure also would vitiate the trial which the lower Court below did not
consider and in this regard, he has referred another citation of our High
Court in Safique Miah & Ors. Versus State of Tripura & Ors.
reported in 2015 (2) TLR 180 wherein in Paras-8 and 14 the Hon'ble
High Court has observed as under :
"8.***
8. Having considered the submissions made
on behalf of the parties, while we are willing
to accept the propositions advanced on behalf
of the State of Punjab as far as substantial
compliance of Section 42 of the NDPS Act,
1985, is concerned, we are unable to accept
the latter part of the submissions relating to
collection of samples at the Police Station
Page 18 of 33
from the seized goods which had been sealed
by P.W.3, Malkiat Singh. Non collection of
samples at the initial stage of seizure was a
defect, which could not have been cured in
the manner in which it was done by opening
the bags which had been sealed by Malkiat
Singh and mixing the contents thereof.
14. After scrutinising the records, it appears that
there is no evidence as regards the compliance of
the provisions of Section 42 or Section 52A(2) of
the NDPS Act. Even if it is considered that it was
not possible on the part of PW.6 to have the
authorisation from the competent authority for
causing the search and seizure, but the duty was
cast on him to prove that what led him to believe
that the appellants were carrying the contraband
narcotic substances. Apart that, there was no
sealing of the packets after seizure and without
the proper procedure those materials were
produced before the Magistrate. Even there is no
evidence on record regarding certification of
correctness of the inventory of the samples seized.
The sampling has also vitiated for non-compliance
of the proper procedure."
Referring the same, Learned senior counsel submitted that
the prosecution in this case could not prove that the seizure of alleged
contrabands were made at the initial stage and furthermore, there was
no sealing of the seized contrabands after seizure for which the
prosecution case has become doubtful but the Learned Trial Court below
did not consider this aspect at the time of hearing of argument.
24. Learned senior counsel further referred another citation of
the Hon'ble Supreme Court in Kuldeep Singh versus State of Punjab
reported in 2011 CRI. L.J.2672 wherein in paras 8 and 19 the Hon'ble
Supreme Court has observed as under :
"8. Having considered the submissions made on
behalf of the parties, while we are willing to accept
the propositions advanced on behalf of the State of
Punjab as far as substantial compliance of Section
42 of the NDPS Act, 1985, is concerned, we are
unable to accept the latter part of the submissions
relating to collection of samples at the Police
Station from the seized goods which had been
sealed by P.W.3, Malkiat Singh. Non-collection of
samples at the initial stage of seizure was a defect,
which could not have been cured in the manner in
which it was done by opening the bags which had
been sealed by Malkiat Singh and mixing the
contents thereof.
9. Accordingly, as indicated hereinabove, since the
provisions of the aforesaid Act have to be
construed strictly, we have no other option but to
hold that the seizure and collection of samples was
not in accordance with the provisions of Section 42
Page 19 of 33
of the Act and the entire procedure stood vitiated
as a result thereof."
Referring the said citation, Learned senior counsel also
submitted that the seizure and collection of samples were not done in
accordance with the provisions of Section 42 of the NDPS Act for which
the entire procedure was vitiated but that part was also not considered
by the Learned Trial Court.
25. In respect of sealing, Learned senior counsel has also
referred another citation of our High Court in Sujit Dhar versus State
of Tripura reported in 2015 (2) TLR 717 where in paras 26 to 29 the
Hon'ble High Court has observed as under :
"[26] When on search of a person or search of a
place any contraband substance is recovered it is
the duty of the empowered officer/police official to
ensure that the same is sealed at the spot. The
empowered officer is also authorized to draw
samples at the spot itself. In the seizure memo he
must clearly mention the identifying mark on the
seal affixed on the seized material and/or the
samples, if any, drawn on the spot. The weight of
the seized material as well as weight of the
samples should be clearly mentioned in the seizure
memo. In cases of bottles etc. it is not necessary to
mention the weight but the number of bottles, the
volume of material stated to be in each bottle
along with other identifying marks such as name of
manufacturer, batch number etc. should be clearly
mentioned in the seizure report. After preparing
the inventory the material should be sealed at the
spot itself. However, in case where the
Investigating Officer does not have investigation
kit or in case of chance recovery or sometimes
when the place of seizure is so remote that there is
chance of the accused escaping if this exercise
cannot be done at the spot then the material can
be taken to the police station. Even in such cases
firstly an attempt should be made that the entire
seized material is sealed in one packet and then
taken to the police station or to the empowered
officer along with the person arrested, if any under
Section 52A of the Act. The material has to be
produced before the Magistrate only where the
search has been conducted pursuant to search
warrant issued by a Magistrate.
[27] Thereafter when the contraband material is
produced in the police station the officer-in-charge
of the police station must also ensure that the
material is resealed. In case the investigating
officer has sealed the material and drawn the
samples at the spot then the Investigating Officer
can either reseal the entire material without
opening the seals and he can affix his own seals
also on the sealed package prepared by the
Investigating Officer. In such an event the officer-
in-charge of the police station shall prepare the
Page 20 of 33
inventory on the basis of the seizure report
prepared by the Investigating Officer at the spot.
[28] In case however, Investigating Officer has not
prepared seizure report at the spot and has
brought the entire material to the police station
then the Officer-in-Charge of the police station
should ensure that the same is weighed and
properly identified as discussed hereinabove and at
least two representative samples are drawn out in
accordance with law. Thereafter, the entire
material should be sealed and a memo should be
prepared in this regard. As far as possible
independent witness should be associated with
this process.
[29] Thereafter the police officer is required to
deposit the seized material i.e. the bulk seized
material as well as the samples with the police
official, in-charge of the Malkhana who shall make
an entry in the Malkhana register giving the time
and date and receipt of samples along with other
details such as the number of packages, number of
seals, identifying mark of the seals etc."
26. In respect of sealing and marking, Learned senior counsel
also referred another citation of our High Court in Prantosh Paul
versus State of Tripura reported in 2014 (2) TLR 463 where in para
17 the Hon'ble High Court has observed as under :
"6. ***
"17. In our considered view, this controversy is
no more res integra and stands answered by a
Constitution Bench judgment of this Court in the
case of Karnail Singh vs. State of Harayana:
(2009) 8 SCC 539. In that judgment, the Court
in the very opening paragraph noticed that in
the case of Abdul Rashid Ibrahim Mansuri v.
State of Gujarat: (2000) 2 SCC 513, a three-
Judge Bench of the Court had held that
compliance of Section 42 of the Act is mandatory
and failure to take down the information in
writing and sending the report forthwith to the
immediate officer superior may cause prejudice
to the accused. However, in the case of Sajan
Abraham v. State of Kerala: (2001) 6 SCC 692
again a Bench of three Judges, held that this
provision is not mandatory and substantial
compliance was sufficient. The Court noticed, if
there is total non-compliance of the provisions
of Section 42 of the Act, it would adversely
affect the prosecution case and to that extent, it
is mandatory. But, if there is delay, whether it
was undue or whether the same was explained
or not, will be a question of fact in each case.
The Court in paragraph 35 of the judgment held
as under: [Karnail Singh (supra), SCC pp. 554-
55, para 35]."
Referring the said judgment, Learned senior counsel has
submitted that the due to non-compliance of the provisions of Section 42
of the NDPS Act the prosecution case was not conclusive and doubtful.
Page 21 of 33
27. Learned senior counsel further submitted that in this case
the prosecution has relied upon one radiogram message which emerged
from the evidence of the complainant. But in this regard, Learned senior
counsel submitted that just by sending one wireless message the
requirement of Section 42(2) of the Act does not becomes complete and
it cannot be said that the provision of Section 42(2) of the NDPS Act has
been complied with and in this regard, he has referred one citation of the
Hon'ble Supreme Court of India in Rajinder Singh versus State of
Haryana reported in (2011) 8 SCC 130. In para-12 of the said
judgment, the Hon'ble Supreme Court has observed as under :
"12. Mr. Dalal, the learned counsel for the
respondent State has, however, referred to para 34
of the judgment of the Constitution Bench in
Karnali Singh : (2009) 8 SCC 539 in which general
observations have been made with regard to the
provisions of Section 41(1) and 42(2) with respect
to the latest electronic technology and the
possibility that the said provisions may not be
entirely applicable in such a situation. Concededly
the present case does not fall in this category. In
any case the principles settled by the Constitution
Bench are in para 35 and have already been
reproduced by us hereinabove. Likewise, the
dispatch of a wireless message to PW 6 (sic PW 5)
does not amount to compliance with Section 42(2)
of the Act as held by this Court in State of
Karnataka v. Dondusa Namasa Baddi : (2010) 12
SCC 495."
28. Finally, Learned senior counsel has submitted that due to
non-compliance of the provision of Section 42 of the NDPS Act and
Section 52(A) of the NDPS Act the prosecution case suffers from various
infirmities but the Learned Court below did not consider the non-
compliance of those provisions of law by the prosecution and found the
appellant guilty and urged for setting aside the judgment.
29. On the other hand, Learned Addl. P.P. appearing for the
State-respondent has submitted that the prosecution before the Learned
Court has been able to prove the charge beyond reasonable doubt
against the appellant and the Learned Court below after proper
appreciation of the evidence on record reasonably and rightly delivered
Page 22 of 33
the judgment holding the appellant guilty and submitted that samples
should not be taken at the time of seizure as per NDPS Act and in
support of his contention, Learned Addl. P.P. has referred one judgment
of the Hon'ble Supreme Court of India in Union of India versus
Mohanlal and Another reported in (2016) 3 SCC 379 where in para-
17 the Hon'ble Supreme Court has held as follows :
"17. The question of drawing of samples at the
time of seizure which, more often than not, takes
place in the absence of the Magistrate does not in
the above scheme of things arise. This is so
especially when according to Section 52-A(4) of
the Act, samples drawn and certified by the
Magistrate in compliance with sub-sections (2) and
(3) of Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it to
say that there is no provision in the Act that
mandates taking of samples at the time of seizure.
That is perhaps why none of the States claim to be
taking samples at the time of seizure."
30. Lastly, Learned Addl. P.P. urged for upholding the conviction
returned by Learned trial Court against the appellant.
31. The Narcotic Drugs and Psychotropic Substances Act, 1985
is a special law enacted by the parliament with an object to control and
regulate the operations relating to Narcotic Drugs and Psychotropic
Substances. In view of the increasing instances of drug trafficking and
drug abuse and also considering the disastrous effect of the same
specifically considering the physical and psychological health of the
vulnerable citizens particularly the youth which has been considered as a
great concerned for the nation compelled the parliament to make the
stringent law to deal with the offences properly. For effective prevention
and control of the drug trafficking and drug abuse it has become a major
challenge to the law enforcing agencies of the country to take immediate
and proper steps. Proper investigation and prosecution of cases and
punishment of offenders is one of the best ways to prevent and control
the drug menace. The Act prescribed for stringent punishment of the
offenders and also prescribes procedures to be followed in respect of
Page 23 of 33
alleged search and seizures. In the Act also it is specifically mentioned in
detail the procedure regarding collection of samples, deposit of articles
and also disposal of the same. Certain safeguard is also given in the Act
so that no unnecessary harassment is caused to any innocent persons
but non-compliance of the prescribed provisions of law by the
investigating agency would be fatal for the prosecution and also non-
compliance of the relevant provisions would definitely facilitate the illegal
possessors of the contravened items to escape from the punishment.
32. Since, Learned senior counsel has confined his arguments
regarding non-compliance of the provisions of Section 42 and 52(A) of
the NDPS Act, so let us reproduce below the aforesaid provisions for the
sake of brevity. For ready reference, Section 42 and Section 52(A) of the
NDPS Act are mentioned herein below :
[42. Power of entry, search, seizure and arrest
without warrant or authorisation.-- (l) Any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or
any other department of the Central Government
including para-military forces or armed forces as is
empowered in this behalf by general or special
order by the Central Government, or any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs control,
excise, police or any other department of a State
Government as is empowered in this behalf by
general or special order of the State Government, if
he has reason to believe from personal knowledge
or information given by any person and taken
down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in
respect of which an offence punishable under this
Act has been committed or any document or other
article which may furnish evidence of the
commission of such offence or any illegally
acquired property or any document or other article
which may furnish evidence of holding any illegally
acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act
is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other
article and any animal or conveyance which he has
reason to believe to be liable to confiscation under
Page 24 of 33
this Act and any document or other article which
he has reason to believe may furnish evidence of
the commission of any offence punishable under
this Act or furnish evidence of holding any illegally
acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason to believe
to have committed any offence punishable under
this Act:
[Provided that in respect of holder of a licence for
manufacture of manufactured drugs or
psychotropic substances or controlled substances
granted under this Act or any rule or order made
thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to
believe that a search warrant or authorisation
cannot be obtained without affording opportunity
for the concealment of evidence or facility for the
escape of an offender, he may enter and search
such building, conveyance or enclosed place at any
time between sunset and sunrise after recording
the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds
for his belief under the proviso thereto, he shall
within seventy-two hours send a copy thereof to
his immediate official superior.]
[52A. Disposal of seized narcotic drugs and
psychotropic substances.-- [(1) The Central
Government may, having regard to the hazardous
nature, vulnerability to theft, substitution,
constraint of proper storage space or any other
relevant consideration, in respect of any narcotic
drugs, psychotropic substances, controlled
substances or conveyances, by notification in the
Official Gazette, specify such narcotic drugs,
psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of
psychotropic substances, class of controlled
substances or conveyances, which shall, as soon as
may be after their seizure, be disposed of by such
officer and in such manner as that Government
may, from time to time, determine after following
the procedure hereinafter specified.]
(2) Where any [narcotic drugs, psychotropic
substances, controlled substances or conveyances]
has been seized and forwarded to the officer-in-
charge of the nearest police station or to the
officer empowered under section 53, the officer
referred to in sub-section (1) shall prepare an
inventory of such [narcotic drugs, psychotropic
substances, controlled substances or conveyances]
containing such details relating to their
description, quality, quantity, mode of packing,
marks, numbers or such other identifying
particulars of the 3[narcotic drugs, psychotropic
substances, controlled substances] or conveyances
or the packing in which they are packed, country of
origin and other particulars as the officer referred
to in sub-section (1) may consider relevant to the
identity of the [narcotic drugs, psychotropic
substances, controlled substances or conveyances]
Page 25 of 33
in any proceedings under this Act and make an
application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such magistrate,
photographs of [such drugs, substances or
conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of such
magistrate and certifying the correctness of any
list of samples so drawn.
(3) Where an application is made under sub-
section (2), the Magistrate shall, as soon as may
be, allow the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1972) or the Code
of Criminal Procedure, 1973 (2 of 1974), every
court trying an offence under this Act, shall treat
the inventory, the photographs of 5[narcotic drugs,
psychotropic substances, controlled substances or
conveyances] and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as
primary evidence in respect of such offence.]"
33. Now, in the case at hand the main allegation of the
prosecution is that on 29.08.2019 when SI Makhan Das of Ambassa P.S.
along with S.I Manoj Kumar Paul and other police staffs of Ambassa P.S.
were performing vehicle checking duties at Ambassa near Chandrai
Cherra bridge on the basis of Ambassa Police Station GD entry No.14
dated 29.08.2019 that day at about 11:40 a.m. they found one orange
colour Maruti Car bearing temporary No.TR-01-AT(TEM)6865 was coming
from the side of Manu towards Ambassa and on the basis of suspicion
they detained the vehicle and sent one R/G to S.P., Dhalai seeking
permission to search and seizure and after receipt of permission, he
informed SDPO and O/C, Ambassa P.S. to come to the spot and
accordingly they came and thereafter, after observing formalities he
conducted search of the vehicle and after search, they found 1394 nos.
of bottles of codeine based cough syrup from the dicky of the car and he
also prepared search memo and thereafter, prepared seizure list and also
prepared the inventory which were marked as exhibits. After that, the
accused was arrested and he was taken to police station along with the
Page 26 of 33
seized contraband items and the same was handed over to O/C,
Ambassa police station and accordingly, on the basis of the complaint
O/C, Ambassa police station registered the case.
34. It is also on record that at the time of seizure apart from the
police personnel some public witnesses were also there and the
prosecution before the Learned trial Court adduced those witnesses.
35. PW-4, Joydeb Das is a public witness. He has specifically
stated that in his presence, bottles of cough syrup were seized by the
police. He has also put his signature on the search memo and also his
signature on the seizure list. The appellant accused by the trend of cross-
examination could not raise any doubt to disbelieve/discard his evidence.
36. Similarly, PW-8, Shri Nantu Deb another public witness he
also deposed in the same manner like that of PW-4. He deposed that on
the alleged day he was present at Ambassa bazaar and when he could
know that so many people were proceeding towards Chandrai para
bridge on National Highway No.8, accordingly he rushed to the PO, he
found the driver of the vehicle and in his presence he found that the
police personnel were searching their bodies by independent witnesses
and in their presence, from the offending vehicle police recovered 12
cartons of Escuf syrup bottles from the car. Those contravened articles
were seized and the witness also put his signature on the seizure list and
identified his signature. The appellant also by the trend of cross-
examination could not raise any doubt to disbelieve/discard his evidence.
37. Similarly, PW-9 Shri Gopal Chandra Biswas another
independent witness very specifically stated that the vehicle was
detained by the police to the PO and he has got a shop near the bridge.
Police called him and on arrival therein he found that police unloaded
10/12 cartons of cough syrup and the appellant could not give any
satisfactory account of the same. The appellant also by the trend of
Page 27 of 33
cross-examination could not raise any doubt to disbelieve his evidence.
The witness also identified the appellant as accused.
38. Furthermore, from the evidence of PW-1, Shri Makhan Das
it appears that on that relevant day i.e. on 29.08.2019 at the time of
performing vehicle checking duty at Ambassa Chandrai Cherra near
bridge, on the basis of GD entry they detained the orange colour Maruti
car bearing No.TR-01-AT(TEM)-6865 and immediately the matter was
informed to SDPO, Ambassa and a message was sent to SP seeking
permission to conduct search and seizure and upon receipt of permission
from SP, he conducted search over the vehicle and recovered 12 nos.
brown colour packets containing 1394 bottles codeine based cough syrup
and from the evidence of said witness it appears that there was no such
prior information with regard to the transportation of the suspected
drugs. So, the question of making GD entry immediately with regard to
the detention of vehicle and subsequent search does not arise at all
because those contrabands were suddenly at the time of checking of
vehicle were discovered. So, it cannot be said that there was non-
compliance of the mandatory provision by the prosecution. In this
regard, in Rajinder Singh (supra) in para 10, 35(D) Hon'ble the apex
Court has observed as under :
"10. In Karnali Singh case : (2009) 8 SCC 539 this
Court has held that the provisions of Section 42(2)
are mandatory and the essence of the provisions
has been set out in the following terms :
*****
(d) While total non-compliance of
requirements of sub-sections (1) and (2)
of section 42 is impermissible, delayed
compliance with satisfactory explanation
about the delay will be acceptable compliance
of section 42. To illustrate, if any delay may
result in the accused escaping or the goods or
evidence being destroyed or removed, not
recording in writing the information received,
before initiating action, or non-sending a copy
of such information to the official superior
forthwith, may not be treated as violation
of section 42. But if the information was
received when the police officer was in the
police station with sufficient time to take
action, and if the police officer fails to record
in writing the information received, or fails to
send a copy thereof, to the official superior,
then it will be a suspicious circumstance
being a clear violation of section 42 of the Act.
Similarly, where the police officer does not
record the information at all, and does not
inform the official superior at all, then also it
will be a clear violation of section 42 of the
Act. Whether there is adequate or substantial
compliance with section 42 or not is a
question of fact to be decided in each case.
The above position got strengthened with the
amendment to section 42 by Act 9 of 2001."
From the aforesaid principle of law laid down by the Hon'ble Apex
Court in Karnali Singh (supra) it appears that if any delay may result in
the accused escaping or the goods or evidence being destroyed or
removed, non recording in writing the information received, before
initiating action, or non-sending a copy of such information to the official
superior forthwith, may not be treated as violation of Section 42. Here in
the given case there was no prior information. At the time of vehicle
checking, the vehicle was detained and from the vehicle, the contrabands
were seized by the complainant. So, in the given circumstances of the
case, it cannot be said that there was non-compliance of the provision of
Section 42 from the side of prosecution.
39. Furthermore, from the other witnesses of the prosecution
who are police personnel it is also crystal clear that on the alleged day,
the vehicle was first detained in course of vehicle checking duty and the
appellant was the driver of the offending vehicle and after observing the
formalities when the vehicle was checked, that time 12 packets
containing Escuf syrup were recovered and the appellant could not give
any satisfactory account of the same and on that relevant point of time
SDPO, Ambassa and O.C., Ambassa were present and in their presence,
the search was conducted and the contrabands were recovered and
thereafter seized and the appellant was arrested and since the
contraband articles were the bottles containing Escuf syrup. So, the
submission of Learned senior counsel that those were not properly
packed and sealed cannot be accepted and the citations as referred by
him are not at all applicable for the decision of the present case.
40. Furthermore, it also appears that PW-6, Sri Asish Dasgupta
SDPO, Ambassa according to his evidence he has deposed that on the
alleged day he was informed over mobile by the Officer-in-Charge,
Ambassa Police Station that a Dutsun-GT car was detained at Chandrai
Cherra bazaar and after his arrival, search memo was prepared by S.I.,
Makhan Das, PW-1 and his signatures were obtained on it and upon
search of the vehicle, 1394 bottles of cough syrup were recovered from
the said vehicle while the driver failed to give any satisfactory
explanation towards possession of such huge quantity of cough syrup
inside the vehicle and from his evidence, further it also appear that the
inventory was prepared on the spot which was also supported by other
witnesses and the witness also put his signature as witness to the
inventory. It also appears from the evidence of said witness that Sub-
inspector, Makhan Das seized all the contraband cough syrup under a
proper seizure list in his presence and during investigation, on
04.09.2019 the sample was drawn and sent to the drug testing
laboratory and on 16.10.2019 the report was received and thereafter,
the same was sent to IO.
41. From the evidence of PW-12, Sri Manoj Kumar Pal it
appears further that on 29.08.2019 he took up investigation of the case
as the case was endorsed to him by the O/C Dinesh Debbarma, PW-10
for investigation. During investigation, he visited PO, prepared hand
sketch map with index, examined some witnesses and recorded their
statement under Section 161 of Cr.P.C. From his evidence also it appears
that on 29.08.2019 he seized the vehicle, Sale Certificate of the vehicle
along with some other documents in presence of witnesses. On
03.09.2019 he also seized a detailed report and a radiogram message
under a proper seizure list. On 30.08.2019 he prepared the inventory of
the seized contrabands and other seized materials and produced the
seized contrabands and other materials before the Court of Learned
Judicial Magistrate, 1st Class, Ambassa for obtaining certificate of
correctness of the inventory, sampling and
correctness of the inventory and photographs of sampling. He had also
collected the Laboratory report and after completion of investigation, he
laid charge-sheet against the appellant. In Goutam Datta (supra) in
para 22 c and d the High Court of Tripura has observed as under :
"19.***
22. This question is no more res integra and
stands fully answered by the Constitution
Bench judgment of this Court in Karnail Singh
v. State of Haryana [(2009) 8 SCC 539]. The
Constitution Bench had the occasion to
consider the conflict between the two
judgments i.e. in Abdul Rashid Ibrahim
Mansuri v. State of Gujarat [(2000) 2 SCC
513] and Sajan Abraham v. State of
Kerala((2001) 6 SCC 692] and held as under:
(Karnail Singh case, SCC pp.554-55, para 35)
***
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in
regard to writing down the information
received and sending a copy thereof to the
superior officer, should normally precede the
entry, search and seizure by the officer. But in
special circumstances involving emergent
situations, the recording of the information in
writing and sending a copy thereof to the
official superior may get postponed by a
reasonable period, that is, after the search,
entry and seizure. The question is one of
urgency and expediency.
(d) While total non-compliance with
requirements of sub-sections (1) and (2) of
Section 42 is impermissible, delayed
compliance with satisfactory explanation
about the delay will be acceptable compliance
with Section 42. To illustrate, if any delay may
result in the accused escaping or the goods or
evidence being destroyed or removed, not
recording in writing the information received,
before initiating action, or non- sending of a
copy of such information to the official
superior forthwith, may not be treated as
violation of Section 42. But if the information
was received when the police officer was in
the police station with sufficient time to take
action, and if the police officer fails to record
in writing the information received, or fails to
send a copy thereof, to the official superior,
then it will be a suspicious circumstance
being a clear violation of Section 42 of the
Act. Similarly, where the police officer does
not record the information at all, and does not
inform the official superior at all, then also it
will be a clear violation of Section 42 of the
Act. Whether there is adequate or substantial
compliance with Section 42 or not is a
question of fact to be decided in each case.
The above position got strengthened with the
amendment to Section 42 by Act 9 of 2001."
From the above, it appears that the requirements of
Sections 42(1) and 42(2) in regard to writing down the information
received and sending a copy thereof to the superior officer, should
normally precede the entry, search and seizure by the officer. But in
special circumstances involving emergent situations, the recording of the
information in writing and sending a copy thereof to the official superior
may get postponed by a reasonable period, that is, after the search,
entry and seizure. The question is one of urgency and expediency and
while total non-compliance with requirements of sub-sections (1) and (2)
of Section 42 is impermissible, but delayed compliance with satisfactory
explanation about the delay will be acceptable compliance with Section
42.
42. Here in the given case from the facts and circumstances it
appears that since the vehicle was detained at the time of checking of
vehicle and there was no prior information of the same and the
procedure followed by the complainant in my considered view was rightly
followed and it cannot be said that there was violation of the provisions
of Section 42 by the prosecution agency in the given case. PW-12, the IO
in course of his examination stated that on 30.08.2019 inventory was
prepared by him and the contraband and other seized materials were
produced before Learned Magistrate with a prayer for sampling and
correctness of the inventory and photographs of sampling by the Learned
Magistrate. The witness identified the inventory marked as Exbt.P/19 and
his signature and his signature marked as Exbt.P-19/1. He also identified
the certificate of correctness of the inventory of the seized contravened
marked Exbt.P/20 and the photographs taken by him and the certificate
given by the Magistrate were also identified and marked as Exbt.P/21,
Exbt.P-21/1 and Exbt.P-21/2. He further deposed that photographs were
duly certified by the Learned Magistrate. In Sujit Dhar (supra) the High
Court of Tripura in para-32 has observed as under :
"32. Section 52A has nothing to do with
search and seizure. The purpose of Section
52A is to ensure that the contraband
substance is disposed of under the
supervision of a Magistrate and if the
Magistrate follows the mandate of Section
52A then the certificate issued by him is per
se admissible in evidence and it is not
necessary for the police or the investigating
agency to produce the bulk seized material
which is the case property before the Court.
The intention behind Section 52A is to ensure
destruction of such harmful material at the
pre trial stage."
From the aforesaid citation it appears that Section 52A of
the NDPS Act has no relevance with regard to search and seizure. The
actual intention behind Section 52 is to ensure destruction of harmful
material at the pre trial stage.
43. Moreover, as pointed out by Mr. S. Kar Bhowmik, Learned
senior counsel appearing for the appellant there was no necessity to
produce and prove malkhana Register in a case under NDPS Act to
substantiate the charge against the accused.
44. Here in the given case from the evidence on record it
appears that the prosecution has complied with the provisions of Section
42 and 52A of the NDPS Act and the Learned trial Court after considering
the evidence on record and also considering all the legal aspects has
rightly and reasonably delivered the judgment upholding the appellant
guilty of offence and we do not find any reasonable grounds to interfere
with the judgment passed by the Learned Special Court.
45. Thus, after hearing both the learned counsels at length and
after going through the evidence on record of the Learned Court below it
appears to us that the prosecution in the given case has been able to
prove that on the alleged day at the time of vehicle checking duty
contraband items were recovered from the vehicle which was being
driven by the present appellant of this case near Chandraicherra Bridge
at Ambassa.
46. Hence, in the result, the appeal filed by the appellant is
hereby dismissed being bereft of merit. The judgment and order of
sentence and conviction passed by the Learned trial Court is hereby
upheld and accordingly it is affirmed.
A copy of this judgment be sent to Learned trial Court along
with the LCR.
JUDGE JUDGE
Date: 2024.02.06 10:56:13 +05'30'
