Tripura High Court
The State Of Tripura vs Swapan Miah on 18 November, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. No.24 of 2025
The State of Tripura,
Represented by the Secretary,
Home Department, Government of Tripura
.... Appellant.
Versus
1. Swapan Miah
S/O Sri Jaher Miah of Rahimpur,
Ward No.06
Near Rahimpur Market,
PS- Kalamchoura, District-Sepahijala.
2. Rajkumar Deb
S/O Lt. Subodh Deb of Rahimpur,
Ward No.6, PS-Kalamchoura, District-Sepahijala.
.......Respondents.
For Appellant(s) : Mr. Raju Datta, P.P.
Mr. Rajib Saha, Addl. P.P.
For Respondent(s) : Mr. Subrata Sarkar, Sr. Adv.
Ms. Ayesha Saha Hirawat, 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.
2. This appeal under Section 378(1)(b) of Cr.P.C. is
preferred challenging the judgment and order of acquittal
dated 13.02.2024 delivered by Learned Special Judge (NDPS),
Sepahijala Tripura, Sonamura in connection with Case
No.Special (NDPS) 20 of 2019.
3. Heard Learned P.P., Mr. Raju Datta appearing on
behalf of the appellant and also heard Learned Senior Counsel,
Mr. Subrata Sarkar assisted by Learned Counsel, Ms. Ayesha
Saha Hirawat appearing on behalf of the respondent accused
persons.
4. At the time of hearing, Learned P.P., Mr. R. Datta
drawn the attention of the Court that on the basis of suo-moto
complaint of SI Rajib Saha being the O/C of Kalamchoura P.S.
that on 18.06.2018 at about 10.50 hours on the basis of a
secret information that some contraband articles were kept in
the shops of Swapan Miah and Rajkumar Deb, he along with
other staff members conducted joint raid and recovered 271
nos. bottle Eskuf 100 ml each from the shop of Swapan Miah
and 81 nos. of bottle of Phensedyl 100 ml each from the shop
of Rajkumar Deb. Regarding possession of which they could
not show any valid documents and accordingly on the basis of
the said suo-moto complaint, case was registered under
Sections 21(C)/25/29 of NDPS Act.
5. The I/O after completion of investigation laid
charge-sheet against both the respondent accused persons and
accordingly the case was registered before the Court of
Learned Special Judge (NDPS), Sepahijala, Sonamura. Before
the Learned Trial Court prosecution adduced in total 10 nos. of
official witnesses to substantiate the charge and on conclusion
Learned Trial Court acquitted both the respondent accused
persons from the charge of the case and challenging that
judgment the prosecution has preferred this appeal.
6. According to Learned P.P. before the Learned Trial
Court specific evidence was given by PW-7 namely SI Rajib
Saha that on the basis of information received from SDPO,
Sonamura, Rajdeep Deb that some contraband items were
stored in the shop of Swapan Miah and Rajkumar Deb and
accordingly the information was entered in Kalamchoura P.S.
GD Entry No.14 dated 18.06.2018 and PW-10 Inspector
Tapash Das, in course of his examination, stated that as per
GD Entry No.14 dated 18.06.2018, the secret information was
conveyed to the higher authority. But the Learned Trial Court
did not consider the same evidence and came to the
observation that there was non-compliance of the provision of
Section 42(2) of NDPS Act. It was further submitted that
before the Learned Trial Court the abstract of GD was
submitted by the I/O but the prosecution through over sight
did not take step for making exhibit of the said document
before the Learned Trial Court and furthermore, the Learned
Trial Court also failed to appreciate the document at the time
of delivery of judgment and came to an erroneous finding. So,
Learned P.P. urged before the Court to consider the submission
of the prosecution and to set aside the judgment of the
Learned Trial Court on the ground of non-compliance of the
provision of Section 42(2) of NDPS Act and to allow the
prosecution to prove the document by remanding back the
matter which is very much lying with the record otherwise
prosecution would be seriously prejudiced.
7. On the other hand, Learned Senior Counsel, Mr. S.
Sarkar assisted by Learned Counsel, Ms. A. Saha Hirawat
appearing on behalf of the respondent accused persons
submitted that the Learned Trial Court after considering the
materials on record rightly and reasonably delivered the
judgment with the observation that Section 42(2) of NDPS Act
was not complied with. Learned Senior Counsel also referred
the evidences on record of the witnesses of the prosecution
and further submitted that there is no infirmity in the judgment
delivered by Learned Trial Court and urged for dismissal of this
appeal.
8. We have heard argument of both the sides at length
and perused the record of the Learned Trial Court. Admittedly,
in this case prosecution to substantiate the charge framed
against both the respondent accused persons under Section
21(C)/25 of NDPS Act in total adduced 10 nos. of witnesses.
We have also perused the evidence on record of the
prosecution. Now for the sake of convenience, let us put herein
below the relevant provision of Section 42 of NDPS Act which
provides as under:-
"42. Power of entry, search, seizure and
arrest without warrant or authorisation.--(1) 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 V-A 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 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 V-A 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."
From the aforesaid provision it appears that in
Section 42(1) of NDPS Act, it is clearly stated that the officer
concerned after receipt of information from personal knowledge
or information from any other person should reduce the said
fact in writing regarding commission of offence in the GD book
and under Section 42(2) of NDPS Act the information should be
sent to his official superior.
9. Here in the case at hand from the evidence of PW-7
i.e. the informant, Sri Rajib Saha it appears that on
18.06.2018 he was working as SI of Police and on that day at
about 10.30 pm SDPO Rajdeep Deb informed him that some
contraband articles were stored in the shop of Swapan Miah
and Rajkumar Deb at Rahimpur market and accordingly the
fact was entered in Kalamchoura P.S. G.D. Entry No.14 dated
18.06.2018 and after that the informant along with SDPO,
Sonamura and other staff conducted raid in the shop of
Swapan Miah and Rajkumar Deb at Rahimpur market and they
recovered 271 nos. of bottles of cough syrup Escuf 100 ml
each and after that the same was seized. But before the
Learned Trial Court the said GD Entry Number was not proved
for marking as exhibits by the prosecution.
10. PW-10, Inspector Tapash Das conducted
investigation of this case. In course of his examination he also
stated that as per GD Entry No.14 dated 18.06.2018 secret
information was also conveyed to the higher authority.
Thus, from the evidence of both the witnesses it is
clear that the said fact was entered in GD but surprisingly the
said GD entry was not proved as prosecution document before
the Learned Trial Court either by the prosecution or by the
Learned Trial Court itself also. Section 42(2) of NDPS Act
further provides that 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.
11. From the abstract of GD annexed with the record it
appears that the fact was entered in the PS GD vide No.14 on
18.06.2018 and the same was conveyed to the higher
authority i.e. SP of the District for approval and as per
permission of the authority further proceeding was carried out.
In absence the said document, Learned Trial Court came to the
observation that Section 42(2) of NDPS Act was not complied
with and came to an order of acquittal on the aforesaid point
with further observation that search and seizure was not
properly made in accordance with law and Malkhana register
was not proved and failed to examine the In-charge of the
Malkhana. From the evidence on record of the prosecution
which emerged from the record of the Learned Trial Court, it
appears that prosecution has failed to conduct the case
properly in accordance with law and the material documents
which were brought on record by the prosecution could not be
proved before the Learned Trial Court. So, in our considered
opinion for fair ends of justice the matter needs to be
remanded back to the Learned Trial Court for retrial/de novo
trial of the accused person of this case allowing the prosecution
to produce the witnesses afresh and to prove the documents
regarding compliance of the provision of Section 42(2) of NDPS
Act for the ends of justice.
12. In the result, the appeal filed by the prosecution is
hereby allowed. The judgment and order of acquittal dated
13.02.2024 delivered by Learned Special Judge (NDPS),
Sepahijala, Tripura, Sonamura is hereby set aside. The matter
is remanded back to the Learned Trial Court with a direction to
record the evidence of all the witnesses of the prosecution
afresh and to allow the prosecution to prove all the documents
in accordance with law and thereafter to deliver a fresh
judgment for fair ends of justice. The accused persons were on
bail at the time of delivery of judgment and as such they are
asked to appear before the Court of Learned Trial Court on
07.01.2026 when the Learned Trial Court on their appearance
shall allow them to go on fresh bail so as to enable them to
conduct their defence properly.
With this observation, this appeal stands disposed of
on contest.
Send down the LCR along with a copy of this
judgment/order immediately.
Pending applications, if any, also stands disposed of.
JUDGE JUDGE
Amrita
AMRITA DEB Date: 2025.11.18 17:18:24
