Tripura High Court

The State Of Tripura vs Atikul Islam on 18 November, 2025

Author: T. Amarnath Goud

Bench: T. Amarnath Goud

                     HIGH COURT OF TRIPURA
                           AGARTALA
                        Crl.A.No.25 of 2025

The State of Tripura,
Represented by the Secretary,
Home Department, Government of Tripura.
                                                          .... Appellant.

                                     Versus
Atikul Islam,
S/O Tajul Islam
Resident of Rangamura,
P.S.- Jatrapur, District- Sepahijala
                                                   .......Respondent.

For Appellant(s)            :    Mr. Raju Datta, P.P.,
                                 Mr. Rajib Saha, Addl. P.P.
For Respondent(s)           :    Mr. Koomar Chakraborty, Adv.
Date of Hearing             :    04.11.2025
Date of delivery of
Judgment and Order :             18.11.2025
Whether fit for
Reporting                   :    YES
         HON'BLE JUSTICE DR. T. AMARNATH GOUD
          HON'BLE MR. JUSTICE BISWAJIT PALIT

                            Judgment & Order


[Dr. T. Amarnath Goud, J]


             Leave granted.

02. This appeal is preferred under Section 378(1)(b) of

Cr.P.C. challenging the judgment and order of acquittal dated

30.03.2024 delivered by Learned Special Judge(NDPS),

Sepahijala in connection with case No.Special (NDPS) 41 of

2019 under Sections 20(b)(ii)(C)/25 of NDPS Act, 1985.

03. Heard Learned P.P., Mr. Raju Datta appearing on

behalf of the appellant and also heard Learned Counsel, Mr.

Koomar Chakraborty appearing on behalf of the respondent-

accused.

04. At the time of hearing, Learned P.P. drawn the

attention of the Court referring the contents of the FIR laid by

one Srikanta Chakraborty of Sonamura P.S. to O/C, Jatrapur

Police Station alleging inter alia that on 20.06.2018 informant

along with Uttam Banik, Dy. S.P. Alok Bhattacharjee, Dy. S.P.

(DIB), SPJ, Abhijit Das, AC, DAR Sepahijala along with staff

appeared at Jatrapur P.S. with one arrestee Nitish Kumar, S/O-

Madan Gopal Singh Yadav of Bidhupur, P.S.- Bidhupur Bazar,

District- Baishali, Bihar who was arrested in connection with

East Agartala P.S. case No.-2018EAG106 under Section

120(B)/326/307 of IPC & 27 of Arms Act and as per his

confession that one Atikul Islam, S/O- Tajul Islam of

Rangamura Ward No.-02 under Jatrapur concealed ganja in his

dwelling house located at Rangamura. Accordingly, the matter

was entered in P.S. G.D.E. No.-03, dated 20.06.2018 and the

information was conveyed to the higher authority and

thereafter, the informant along with staff of Jatrapur P.S. and

also the said accused, Nitish left towards the residence of

Atikul Islam and conducted raid and incourse of raid 35 kg of

dry ganja was seized from the possession of Atikul Islam and

thereafter, the same was seized in-accordance-with law and

accordingly, the case was registered by O/C, Jatrapur P.S. On

conclusion of investigation, charge-sheet was submitted and

before the Learned Trial Court in total 12 nos. of witnesses

were adduced by the prosecution and certain documents were

marked as exhibits by the prosecution but the Learned Trial

Court came to the observation that Section 42(2) was not

complied with by the prosecution in this case and furthermore,

Learned Court came to the observation that no pre-search

memo could be proved by the prosecution and the seizure list

witnesses did not support the case of the prosecution and it

was also observed by the Learned Trial Court that the

prosecution failed to exhibit any malkhana registrar and also

failed to examine the malkhana in-charge and ultimately

acquitted the accused. But Learned P.P. further submitted that

before the Learned Trial Court the extract of G.D. along with

the communication made to the higher authority was very

much available with record but before the Learned Trial Court

prosecution failed to prove those documents as exhibits. Even

from the side of the Learned Trial Court also no such step was

taken to find out the truth, thus, Learned Trial Court came to

the observation that Section 42(2) was not complied with, pre-

search memo was not exhibited and also the Learned Trial

Court came to an erroneous observation that the independent

seizure list witness did not support the prosecution case and

acquitted the accused from the charge of this case, for which

the interference of the Court is required and urged before the

Court to set aside the judgment and order of acquittal passed

by the Learned Trial Court and urged for remanding back the

matter for de novo trial of the accused.

In this regard, Learned P.P. drawn the attention of

the Court referring one citation of the Hon'ble Supremem Court

in Rizwan Khan vs. State of Chhattishgarh reported in

(2020) 9 SCC 627, wherein in para No.12 Hon'ble the Apex

Court observed as under:

"12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808]"

Relying upon the same, Learned P.P. submitted that

based upon the evidence of police personnel in this case,

conviction could be convicted but the Learned Trial Court did

not rely upon the evidence of police personnel rather based

upon the evidence of private witness came to this observation

that evidence was not proved.

05. On the other hand, Learned Counsel, Mr. Koomar

Chakraborty appearing on behalf of the respondent-accused

countered the submission made by Learned P.P. appearing on

behalf of the State-appellant and submitted that before the

Learned Trial Court there was total non-compliance of the

provision of Section 42(2) of NDPS Act. No independent seizure

list witness supported the case of the prosecution even the

malkhana registrar was not proved for marking as exhibit,

even the in-charge of malkhana was not produced before the

Learned Trial Court to support and substantiate the prosecution

case and as such according to Learned Counsel, the

prosecution case suffers from infirmities and there was no

infirmity in the judgment and order of acquittal delivered by

Learned Trial Court and asked for dismissal of this appeal.

Learned Counsel, Mr. Chakraborty in support of his

contention relied upon one citation of the Hon'ble Supreme

Court of India reported in (2013) 2 SCC 212 wherein in para

No.24 Hon'ble the Apex Court observed as under:

"24. As per the statement of PW 1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the investigating officer, PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 km away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show what the investigating officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of the NDPS Act."

Referring the same, he submitted that from the

aforesaid observation of the Hon'ble Supreme Court, it appears

that in the present case at hand, there was total non-

compliance of the provision of Section 42(2) of the NDPS Act.

06. We have heard detailed argument of both the sides

at length and perused the record of the Learned Trial Court

very carefully. In this case charge was framed against the

respondent-accused under Section 20(b)(ii)(C)/25 of NDPS

Act. To substantiate the charge prosecution in total adduced 12

nos. of witnesses before the Learned Trial Court. PW-4, S.I.

Srikanta Chakraborty was the informant of this case. He

deposed that on 20.0.2018 he was working as S.I. of police at

Sonamura P.S. On that day, during interrogation of one Nitish

Kumar at Jatrapur P.S. in connection with East Agartala P.S.

No.106 of 2018 it was revealed that some contraband articles

were kept in the house of one Atikul Islam at Rangamura.

Accordingly, search was raid and conducted in the house of

Atikul Islam and during raid and search they recovered 35 kg

of dry ganja in a blue colour drum from the dwelling hut of

accused. He identified the pre-search memo, seizure list etc.

and also identified the complaint led by him which was marked

as Exhibit-4 and Exhibit-4/1. On perusal of said Exhibit-4, it

appears that at Jatrapur P.S. the fact was entered in P.S. G.D.

and the matter was reported to the higher authority. But

surprisingly, those documents were not produced for marking

as exhibits by the prosecution even the said fact was not taken

into consideration by Learned Trial Court at the time of delivery

of judgment.

PW-1, S.I. Bikash Debbarma, PW-3 Alok

Bhattacharjee, PWs-5, 6, PW-8, Bulti Das, Women Constable,

PW-12 very categorically stated that the contraband items

were seized from the residence of accused but PW-5, Tashlima

Akter, PW-2, Uday Bashi Tripura stated that the accused was

arrested in connection with this case. Similarly, PW-8, PW-9,

Tajul Islam also deposed in the same manner. However, said

PW-2 and PW-5 could not say as to why the accused was

arrested but PW-9 Tajul Islam although stated that he was not

present to the house of the accused at the time of incident. But

later on, he could know that the accused was arrested on a

NDPS case based upon those evidence, Learned Trial Court

came to the observation that the independent witness did not

support the case of seizure laid by the prosecution and also the

Learned Trial Court came to the observation that malkhana

produced for examination by the prosecution.

From the judgment of the Hon'ble Supreme Court

relied upon by the prosecution, it appears to us that in absence

the evidence of private witnesses also there is scope for

conviction of an accused person and the testimony of official

witnesses cannot be rejected on the ground of non-

corroboration by independent witnesses. Thus, after hearing

both the sides and also after going through the record of the

Learned Trial Court, it appears to us that Learned Trial Court

has failed to appreciate the evidence on record at the time of

delivery of judgment properly and passed an order of acquittal

for which the interference of the Court is required and as such

in the considered opinion of this Court, the matter needs to be

remanded back to the Learned Trial Court for retrial of the

accused with a liberty to the prosecution to produce both

oral/documentary evidence on record afresh.

07. In the result, the appeal filed by the State is hereby

allowed. The judgment and order of acquittal delivered by

Learned Trial Court is set aside. The matter is remanded back

to the Learned Trial Court with a direction to retrial of the

accused with further direction to call upon all the witnesses of

the prosecution and to allow the prosecution to adduce

oral/documentary evidence on record in support of the

prosecution case affording scope to the respondent-accused to

cross-examine the witnesses and thereupon to deliver a fresh

judgment in-accordance-with law. However, liberty is given to

the prosecution and to the accused to rely upon the evidence

on record recorded earlier. The accused is on bail. However, he

is asked to appear before the Learned Trial Court on .......

Learned Trial Court shall be at liberty to consider bail

application of the accused and to allow him to go on fresh bail

till conclusion of trial.

With this observation, this appeal is stands disposed

of on contest.

Send down the LCR along with the copy of this

judgment and also a copy of this judgment/order be furnished

to Learned Counsel for the appellant for compliance

Pending application(s), if any, also stands disposed

of.

     JUDGE                                                             JUDGE




MOUMITA DATTA DATTA
              Date: 2025.11.19 10:45:51 +05'30'
Purnita