Tripura High Court
The State Of Tripura vs Sri Prasenjit Nath on 26 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. No.27 of 2024
The State of Tripura,
Represented by the Secretary,
Home Department, Government of Tripura
------ Appellant
Versus
Sri Prasenjit Nath,
S/O Sri Prabhat Nath,
Resident of Padmapur,,
Ward No.20, P.S.- Dharmanagar,
District- North Tripura
------ Respondent
For Appellant(s) : Mr. Raju Datta, P.P.
For Respondent(s) : Mr. Bhaskar Deb, Adv,
Mr. Victor Ghosh, Adv.
Date of hearing : 17.03.2025
Date of delivery of
Judgment & Order : 26.03.2025
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred challenging the judgment and order
dated 04.07.2024 delivered by Learned Special Judge (NDPS), North
Tripura, Dharmanagar in connection with case No. Special(NDPS)
No.42 of 2019. By the said judgment, the respondent was acquitted
from the charge levelled against him under Section 21(b) of NDPS
Act.
2. Heard Learned P.P., Mr. Raju Datta appearing on behalf of the
appellant and also heard Learned Counsel, Mr. Bhaskar Deb along
with Learned Counsel, Mr. Victor Ghosh appearing on behalf of the
respondent.
3. At the time of hearing of argument, Learned P.P. drawn the
attention of the Court that the Learned Trial Court failed to appreciate
the provisions of Section 42, 50 and 57 of the NDPS Act and delivered
the judgment acquitting the respondent-accused from the charge of
this case. He further submitted that Section 50 of NDPS Act was not
applicable in this case but the Learned Court below came to the
observation that no notice was served before carrying out the search.
In respect of Section 57 of NDPS Act, it was the observation of
Learned Court below that the Officer conducting search is duty bound
to communicate the arrest and seizure to the superior official but in
this case, no such communication is produced or proved by the
prosecution before the Learned Trial Court. According to Learned P.P.
those documents were available with the record but through bona fide
mistake, the same documents could not be produced for which the
prosecution has submitted another prayer under Section 391 of
Cr.P.C. corresponding to Section 432 of BNSS for allowing the
prosecution to adduce additional evidence for the sake of justice. It
was further submitted that there is every possibility to succeed in the
appeal and if the prayer submitted by the prosecution is not allowed
then the prosecution would suffer irreparable loss. He also relied upon
few citations which would be discussed later on.
4. On the other hand, Learned Counsel for the respondent-
accused first of all drawn the attention of the Court that Learned
Special Judge (NDPS) after considering the evidence on record rightly
and reasonably delivered the judgment acquitting the respondent-
accused from the charge of this case. He further submitted that
before the Learned Trial Court, prosecution did not adduce the IO nor
took any step to prove the documents which at this stage prosecution
refers by submitting a petition for permitting the prosecution to
adduce additional evidence. He further submitted that even no such
prayer was submitted by the prosecution before the Court of Learned
Special Judge (NDPS) as to why the IO was not produced and as to
why those documents were not produced and proved. So, he further
referred the evidence of PW-5, Rupendra Debbarma who in course of
his cross-examination stated that the seizure list and sample drawn
memo were written by SI Ratan Rabi Das. The pre-search memo was
also written by SI Ratan Rabi Das. He only put his signature on the
documents. The said witness further stated that he communicated the
information regarding seizure and arrest of the accused to the higher
authority but the said fact is not mentioned in the Case Diary and in
the suo motu FIR and seizure list, he did not mention the specific
place in the house of accused from where the contraband was
recovered. The IO SI Ratan Rabi Das accompanied with him to the
PO. Referring the cross-examination part of the said witness, Learned
Counsel for the respondent submitted that said PW-5 was not
produced before the Learned Trial Court. Even no step was taken by
the prosecution to ensure attendance of the said witness. So, at this
belated stage, there is no scope to allow the prayer of prosecution.
Furthermore, he submitted that prosecution at this stage is trying to
fill up the gap of the prosecution case which is not permissible in the
eye of law and he also relied upon one citation of the Hon'ble
Supreme Court of India reported in (2024) 4 SCC 453 in connection
with Crl. A. No.478 of 2024 [titled as Ajitsinh Chehuji Rathod v.
State of Gujarat and another] dated 29.01.2024 wherein in para
No.8, Hon'ble the Apex Court observed as under:
"8. At the outset, we may note that the law is well-
settled by a catena of judgments rendered by this
Court that power to record additional evidence under
Section 391 CrPC should only be exercised when the
party making such request was prevented from
presenting the evidence in the trial despite due
diligence being exercised or that the facts giving rise
to such prayer came to light at a later stage during
pendency of the appeal and that non-recording of
such evidence may lead to failure of justice."
Referring the same, Learned Counsel for the respondent-
accused submitted that from the record of the Learned Court below, it
is crystal clear that no such step was taken by the prosecution before
the Learned Court below in this regard during trial of the case
showing justification as to why those documents as referred now,
could not be produced before the Learned Trial Court. Even there was
also no such prayer as to why the IO could not be produced. So, at
this belated stage there is no scope to consider such prayer and
finally urged for dismissal of this appeal.
Further, Learned Counsel also drawn the attention of the
Court to the FIR laid by the informant Rupendra Debbarma, SI of
Police who was examined as PW-5 and submitted that in the FIR, it
was written by the informant that on arrival to the house of Prasenjit
Nath, he along with women Constable searched the house in presence
of witnesses and after proper searching recovered the contraband
items but during his cross-examination, he stated that the seizure list
and the sample drawn were written by SI Ratan Rabi Das, the pre-
search memo was also written by SI Ratan Rabi Das and there was
huge contradiction between the contents of the FIR and the statement
of the witness which the prosecution also failed to explain before the
Court and as such, Learned Counsel fairly submitted that the
prosecution miserably failed to prove the charge levelled against the
respondent-accused before the Learned Trial Court. Thus, the present
appeal is not maintainable and urged for dismissal of the same.
5. In this case, the prosecution was set into motion on the basis
of an FIR laid by SI Rupendra Debbarma on 15.05.2019 to O/C,
Dharmanagar PS alleging inter alia that on 14.05.2019 one ASI
Kishore Banik received an information from local public of Padmapur
area that one Prasenjit Nath, resident of Padmapur, Ward No.20
stored huge quantum of heroine for the purpose of selling to the local
youths at his residence at Padmapur. The matter was entered into
Dharmanagar PS GD book and after that, the matter was informed to
the higher authority i.e., SDPO Dharmanagar and SP North vide GD
Entry No.44 dated 14.05.2019 and Dharmanagar PS DM No.108018-
19 dated 14.05.2019 and after that on the basis of information, the
informant along with SI Ratan Rabi Das and other men and women
police personnel went to the place of occurrence and conducted
search in the house of Prasenjit Nath and according to him, he along
with constable Moushumi Paul started searching the house of Prasenjit
Nath after preparing pre-search memo and obtaining search
authorization letter from O/C, Dharmanagar PS and during search he
found some contraband items and accordingly seized the same in
presence of witnesses from the possession of Prasenjit Nath and as he
could not show any valid documents, he was taken into custody and
hence, the informant laid the FIR. Accordingly, on the basis of his FIR,
Dharmanagar PS case No.61/2019 under Section 21(b)/29 of NDPS
Act was registered. The accused was produced before the Court and
after completion of investigation, charge-sheet was submitted against
him. Learned Special Judge (NDPS) framed charge under Section
21(b) of NDPS Act against the respondent-accused.
To substantiate the charge, prosecution before the Learned
Trial Court has adduced in total 6 nos. of witnesses and relied upon
some documents which are marked as Exhibits in this case.
Prosecution Witnesses :
1. PW-1: Smt. Moushumi Paul
2. PW-2: Sri Biswajit Sutradhar
3. PW-3: Sri Abhijit Mallik
4. PW-4: Mr. Suman Kumar Chakraborty
5. PW-5: Sri Rupendra Debbarma
6. PW-6: Sri Kishore Banik
Exhibits of the prosecution :
1. Exbt.1/1, 2/2 and 3/1- Signature of PW-2 on
sample drawn memo, seizure list and pre-
search memo.
2. Exbt.4- Signature of PW-4 on SFSL report.
3. Exbt.3(as a whole)- The pre-search memo and
signature of PW5 on the same.
4. Exbt.2(as a whole)- Seizure list and signature
of PW5 on the same.
5. Exbt.1(as a whole)- Sample drawn memo and
signature of PW5 on the same.
6. Exbt.5(as a whole)- Ejahar and signature of
PW on the same.
Finally, on conclusion of trial, Learned Special Judge (NDPS)
acquitted the respondent-accused from the charge of this case and
challenging the judgment, this present appeal is filed before this High
Court.
6. I have heard the submission of both the sides at length and
perused the record of the Learned Court below and also the citations
as referred by Learned Counsel for both the sides. In course of
hearing of argument, Learned P.P. appearing on behalf of the State
drawn the attention of the Court referring Section 50 of NDPS Act and
submitted that Learned Special Judge (NDPS) at the time of disposal
of the case wrongly came to an observation that no notice upon the
respondent-accused was issued under Section 50 of NDPS Act. But in
this regard, he drawn the attention of the Court referring the
judgment of the Hon'ble Apex Court reported in 2023 SCC OnLine
SC 1262 [titled as Ranjan Kumar Chadha v. State of Himachal
Pradesh dated 06.10.2023] wherein in para No.36, Hon'ble the
Apex Court observed as under:
"36. Considering the aforesaid provisions, the
inference which can be drawn is that "to search any
person" would mean only search of the body or
wearing apparels of such person and in that case the
procedure which is required to be followed would be
the one prescribed under Section 50 of the NDPS Act.
In contrast, if search of any building, conveyance or
place, including a public place, is to be carried out,
then there is no question of following the procedure
prescribed under Section 50. However, when a
suspected or arrested person is to be searched, then
the procedure prescribed under Section 50 comes
into operation and the procedure thereunder is
required to be followed. This can be seen by
referring to Section 100(3) of the CrPC 1973 which
provides that where any person is reasonably
suspected of concealing about his person any article
for which search should be made, such person may
be searched and if such person is a woman, the
search shall be made by another woman with strict
regard to decency. The concealment which is
suspected is on the person or about his person."
Referring the same, Learned P.P. drawn the attention of the
Court that in this case no notice was required to be served under
Section 50 of NDPS Act since the contraband item was recovered from
the residence of the respondent-accused not from the person of the
respondent-accused but the Learned Special Judge (NDPS) came to
the observation that notice was required to be served under Section
50 of the NDPS Act upon him which the prosecution failed to explain
but in view of the principle laid down by the Hon'ble Apex Court in the
aforenoted case, no notice was required to be served upon the
respondent-accused.
Learned P.P. further drawn the attention of the Court
referring another citation of the Hon'ble Apex Court in Ashok
Tshering Bhutia v. State of Sikkim dated 25.02.2011 reported in
(2011) 4 SCC 402 wherein in para No.32, Hon'ble the Apex Court
observed as under:
"32. In view of the above, the law on the point can
be summarized to the effect that additional evidence
can be taken at the appellate stage in exceptional
circumstances, to remove an irregularity, where the
circumstances so warrant in public interest.
Generally, such power is exercised to have formal
proof of the documents, etc. just to meet the ends of
justice. However, the provisions of Section 391 CrPC
cannot be pressed into service in order to fill up
lacunae in the prosecution case."
Referring the same, Learned P.P. drawn the attention of the
Court that since in this case, the required documents could not be
proved by the prosecution before the Learned Special Judge (NDPS)
as such, there is no bar to approach to the Appellate Court for
allowing the prayer of the prosecution to adduce additional evidence.
He also referred another citation of the Hon'ble Supreme
Court in State of Gujarat v. Mohanlal Jitamalji Porwal and
another dated 26.03.1987 reported in (1987) 2 SCC 364 wherein
in para No.5, Hon'ble the Apex Court further observed as under:
5. The next question which arises is as regards the
request made by the learned Assistant Public
Prosecutor for adducing additional evidence in order
to prove letter Ex. 26 received from the Mint Master
certifying that the article in question was made of
gold of the purity of 99.60. The request was made in
order to invoke the powers of the court under
Section 391 of the Code of Criminal Procedure, 1973,
which inter alia provides that in dealing with any
appeal under Chapter 29 the appeal court, if it thinks
additional evidence to be necessary, shall record its
reasons and may either take such evidence itself or
ask it to be taken by a magistrate. The High Court
rejected the prayer on the ground that it did not
consider it "expedient in the interests of justice to
open a new vista of evidence" in view of the fact that
the offence had taken place six years back. The mere
fact that six years had elapsed, for which time-lag
the prosecution was in no way responsible, was no
good ground for refusing to act in order to promote
the interests of justice in an age when delays in the
court have become a part of life and the order of the
day. Apart from the fact that the alleged lacuna was
a technical lacuna in the sense that while the opinion
of the Mint Master had admittedly been placed on
record it had not been formally proved the report
completely supported the case of the prosecution
that the gold was of the specified purity. To deny the
opportunity to remove the formal defect was to abort
a case against an alleged economic offender. Ends of
justice are not satisfied only when the accused in a
criminal case is acquitted. The Community acting
through the State and the Public Prosecutor is also
entitled to justice. The cause of the Community
deserves equal treatment at the hands of the court in
the discharge of its judicial functions. The
Community or the State is not a persona-non-grata
whose cause may be treated with disdain. The entire
Community is aggrieved if the economic offenders
who ruin the economy of the State are not brought to
book. A murder may be committed in the heat of
moment upon passions being aroused. An economic
offence is committed with cool calculation and
deliberate design with an eye on personal profit
regardless of the consequence to the Community. A
disregard for the interest of the Community can be
manifested only at the cost of forfeiting the trust and
faith of the Community in the system to administer
justice in an even-handed manner without fear of
criticism from the quarters which view white collar
crimes with a permissive eye unmindful of the
damage done to the National Economy and National
Interest. The High Court was therefore altogether
unjustified in rejecting the application made by the
learned Assistant Public Prosecutor invoking the
powers of the court under Section 391 of the Code of
Criminal Procedure. We are of the opinion that the
application should have been granted in the facts
and circumstances of the case with the end in view
to do full and true justice. The application made by
the learned Assistant Public Prosecutor is therefore
granted. The High Court will issue appropriate
directions for the recording of the evidence to prove
the report of the Mint Master under Section 391 CrPC
when the matter goes back to the High Court and is
listed for directions. The appeal is therefore allowed.
The order of acquittal is set aside. The matter is
remitted to the High Court for proceeding further in
accordance with law in the light of the abovesaid
directions.
Referring the same, he further submitted that there is no bar
to allow the prayer of the prosecution to adduce additional evidence.
He further referred another citation of the Hon'ble Apex Court
in Brigadier Sukhjeet Singh (retired) MVC v. State of Uttar
Pradesh and others dated 25.01.2019 reported in (2019) 16 SCC
712 wherein in para Nos.22, 23 and 24, Hon'ble the Apex Court
observed as under:
"22. Chapter XXIX of the Code of Criminal Procedure,
1973 deals with "Appeals". Section 391 CrPC
empowers the appellate court to take further
evidence or direct it to be taken. Section 391 is as
follows:
"391. Appellate court may take further
evidence or direct it to be taken. (1) In dealing
with any appeal under this Chapter, the
appellate court. if it thinks additional evidence
to be necessary, shall record its reasons and
may either take such evidence itself, or direct
it to be taken by a Magistrate, or when the
appellate court is a High Court, by a Court of
Session or a Magistrate.
(2) When the additional evidence is taken by
the Court of Session or the Magistrate, it or he
shall certify such evidence to the appellate
court,snd such court shall thereupon proceed
to dispose of the appeal.
(3) The accused or his pleader shall have the
right to be present when the additional
evidence is taken.
(4) The taking of evidence under this section
shall be subject to the provisions of Chapter
XXIII, as if it were an inquiry."
23. The key words in Section 391(1) are "if it thinks
additional evidence to be necessary". The word
"necessary" used in Section 391(1) is to mean
necessary for deciding the appeal. The appeal has
been filed by the accused, who have been convicted.
The powers of the appellate court are contained in
Section 386. In an appeal from a conviction, an
appellate court can exercise power under Section
386(b), which is to the following effect:
"386. (b) in an appeal from a conviction-
(i) reverse the finding and sentence and
acquit or discharge the accused, or
order him to be re-tried by a court of
competent jurisdiction subordinate to
such appellate court or committed for
trial, or
(ii) alter the finding, maintaining the
sentence, or
(iii) with or without altering the finding,
alter the nature or the extent, or the
nature and extent, of the sentence, but
not so as to enhance the same;"
24. Power to take additional evidence under Section
391 is, thus, with an object to appropriately decide
the appeal by the appellate court to secure ends of
justice. The scope and ambit of Section 391 CrPC has
come up for consideration before this Court in
Rajeswar Prasad Misra v. State of W.B. :AIR 1965 SC
1887 Hidayatullah, J., speaking for the Bench held
that a wide discretion is conferred on the appellate
courts and the additional evidence may be necessary
for a variety of reasons. He held that additional
evidence must be necessary not because it would be
impossible to pronounce judgment but because there
would be failure of justice without it. Following was
laid down in paras 8 and 9: (AIR p. 1892)
"8. ... Since a wide discretion is conferred on
appellate courts, the limits of that courts'
jurisdiction must obviously be dictated by the
exigency of the situation and fair play and
good sense appear to be the only safe guides.
There is, no doubt, some analogy between the
power to order a retrial and the power to take
additional evidence. The former is an extreme
step appropriately taken if additional evidence
will not suffice. Both actions subsume failure
of justice as a condition precedent. There the
resemblance ends and it is hardly proper to
construe one section with the aid of
observations made by this Court in the
interpretation of the other section.
9. Additional evidence may be necessary for a
variety of reasons which it is hardly necessary
(even if was possible) to list here. We do not
propose to do what the legislature has
refrained from doing, namely, to control
discretion of the appellate court to certain
stated circumstances. It may, however, be
said that additional evidence must be
necessary not because it would be impossible
to pronounce judgment but because there
would be failure of justice without it. The
power must be exercised sparingly and only in
suitable cases. Once such action is justified,
there is no restriction on the kind of evidence
which may be received. It may be formal or
substantial. It must, of course, not be received
in such a way as to cause prejudice to the
accused as for example it should not be
received as a disguise for a retrial or to change
the nature of the case against him. The order
must not ordinarily be made if the prosecution
has had a fair opportunity and has not availed
of it unless the requirements of justice dictate
otherwise.""
Referring the aforesaid citation, Learned P.P. reiterated the
same submission as made by him earlier regarding scope for adducing
additional evidence and finally, he referred one citation of this High
Court dated 17.02.2025 passed in Crl. App. No.8 of 2024 and
urged for allowing the prayer of the prosecution.
7. I have perused the said citations of the Hon'ble Apex Court
and this High Court referred by Learned P.P. representing the
appellant. For the sake of convenience, I would like to refer herein
below the provision of Section 391 of Cr.P.C corresponding to Section
432 of BNSS which provides as under:
Section 391 of Cr.P.C.
391. Appellate Court may take further evidence or
direct it to be taken.- (1) In dealing with any appeal
under this Chapter, the Appellate Court, if it thinks
additional evidence to be necessary, shall record its
reasons and may either take such evidence itself, or
direct it to be taken by a Magistrate, or when the
Appellate Court is a High Court, by a Court of Session
or a Magistrate.
(2) When the additional evidence is taken by the
Court of Session or the Magistrate, it or he shall
certify such evidence to the Appellate Court, and
such Court shall thereupon proceed to dispose of the
appeal.
(3) The accused or his pleader shall have the right to
be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be
subject to the provisions of Chapter XXIII, as if it
were an inquiry.
Section 432 of BNSS
Appellate Court may take further evidence or direct it
to be taken [S.432]
432. Appellate Court may take further evidence or
direct it to be taken.- (1) In dealing with any appeal
under this Chapter, the Appellate Court, if it thinks
additional evidence to be necessary, shall record its
reasons and may either take such evidence itself, or
direct it to be taken by a Magistrate or, when the
Appellate Court is a High Court, by a Court of Session
or a Magistrate.
(2) When the additional evidence is taken by the
Court of Session or the Magistrate, it or he shall
certify such evidence to the Appellate Court, and
such Court shall thereupon proceed to dispose of the
appeal.
(3) The accused or his advocate shall have the right
to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be
subject to the provisions of Chapter XXV, as if it were
an inquiry.
From the aforesaid provision, it is clear that the Appellate
Court has got the power to allow the prayer for adducing additional
evidence if it thinks to be necessary, provided the power must be
exercised sparingly and only in suitable cases.
Here in the case at hand, from the FIR laid by the informant
dated 15.05.2019 it appears to this Court that in the FIR it was
written by the informant that on the alleged day he conducted search
along with one Moushumi Paul and prepared pre-search memo and
also seized the contraband items. But surprisingly, when he appeared
before the Court to depose as a witness, during his cross-
examination, he specifically stated that the seizure list and the sample
memo were drawn by SI Ratan Rabi Das and the pre-search memo
was also written by SI Ratan Rabi Das and further, he stated that he
communicated the information to the higher authority but surprisingly
that document was not proved through the evidence of said witness
by the prosecution before the Learned Special Judge (NDPS).
Furthermore, prosecution also failed to produce said SI Ratan Rabi
Das before the Learned Special Judge (NDPS) to substantiate the
allegation of the prosecution. Even no such prayer was submitted by
the prosecution before the Learned Trial Court to prove those
documents. There was no explanation from the side of the
prosecution as to why the IO was not produced before the Learned
Trial Court. Now if we go through the evidence of PW-6, who in his
deposition stated that on 14.05.2019 he was performing GD duty
from 2 pm when he received an information and he entered the
information in GD book vide No.44 thereafter, he informed the matter
to O/C, PS and the information was thereafter communicated to SP of
the District and after that, they went to the PO. But surprisingly
prosecution also did not take any step to prove that
information/document through the evidence of said PW-6. Even PW-5
nowhere stated that he was authorized to carry out search. Although
in the FIR and also in his examination-in-chief he stated that he
prepared pre-search memo and also seized the offending article but
during cross-examination, he stated that pre-search memo and
seizure list were prepared by SI Ratan Rabi Das. There was serious
discrepancy and contradiction in the evidence of said witness PW-5 in
his examination-in-chief and cross-examination. Prosecution failed to
explain all these loopholes before the Learned Trial Court and before
this Court at the time of hearing. Furthermore, seizure also could not
be proved by the prosecution in course of trial in accordance with law.
PW-2, Biswajit Sutradhar is a public witness who stated that he
signed some documents as per instruction of the IO but said witness
also not declared by the prosecution. Situated thus, it appears that
the prosecution has miserably failed to conduct the case before the
Learned Trial Court properly. So, Learned Special Judge, in my
considered view rightly and reasonably delivered the judgment of
acquittal in this case. The citation as referred by Learned P.P. are no
doubt significant but the principles of those citations could not be
applied in this case since there was no any attempt or effort from the
side of prosecution before the Learned Trial Court to prove the
relevant documents which at this belated stage prosecution intended
to prove by submitting prayer for permitting to adduce additional
evidence. Even the IO was also not produced before the Court by the
prosecution to substantiate the evidence of PW-5 i.e. the informant of
this case. As such, I do not find any error or illegality in the judgment
of Learned Special Judge (NDPS) to be interfered with.
8. In the result, the appeal filed by the prosecution deserves no
consideration. Accordingly, the same is dismissed. The judgment and
order of acquittal dated 04.07.2024 delivered by Learned Special
Judge (NDPS), North Tripura, Dharmanagar in connection with case
No. Special(NDPS) No.42 of 2019 is hereby affirmed and the same is
upheld accordingly. The prayer submitted by the prosecution under
Section 391 of Cr.P.C. corresponding to Section 432 of BNSS is
accordingly stands dismissed being devoid of merit.
With this observation, this appeal stands disposed of.
Send down the record of the Learned Court below along with
a copy of this judgment and Order.
Pending applications(s), if any, also stands disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA 15:00:33 -07'00'
Deepshikha
