Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 26 June, 2025
Page No.# 1/13
GAHC010069062023
2025:GAU-AS:8854
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./130/2023
MONSER ALI
S/O LATE HASHEM ALI,
R/O NO. 3, BAGHMARA CHAR,
P.O.- BAGHMARA,
P.S.- ALOPATI CHAR,
DIST.- BARPETA, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY THE P.P.
Advocate for the Petitioner : , MR A ISLAM,MR F HAQUE,MR. S K M ALOMGIR,MR A
SHARMA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGEMENT AND ORDER (CAV)
Date : 26-06-2025
This appeal is preferred challenging the judgment and order dated 01.03.2023 and
02.03.2023 passed by the learned Special Judge, Goalpara in connection with Special Case
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No. 14/2022 arising out of Goalpara Police Station Case No. 78/2022 (GR Case No.
378/2022), convicting Manser Ali (hereinafter also referred to as the accused or the
appellant) under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(NDPS Act for short) and, sentencing him to undergo rigorous imprisonment for 10 (Ten)
years and to pay a fine of Rs.1,00,000/- (Rupees One Lac) with default stipulation.
2. The case in brief is that on 28.03.2022 at about 5.50 pm, during a naka checking at
Bhalukdubi (Goalpara – Agia Road), the appellant was approaching from Goalpara towards
Agia in a vehicle of Maruti 800 make, bearing registration No. AS-18D/8110. This vehicle was
stopped and searched and three boxes containing 432 SPAS-TRANCAN capsules (Tramadol – a
psychotropic substance) was recovered, concealed under the driver’s seat. The boxes of
capsules were seized and an FIR was lodged and registered as Goalpara Police Station Case
No. 78/2022 under Section 22(b) of the NDPS Act.
3. Investigation commenced and on completion of investigation, charge sheet was
submitted against the appellant under Section 22(b) of the NDPS Act. At the commencement
of trial, a formal charge under Section 22 (c) of the NDPS Act was framed and read over and
explained to the appellant,to which he pleaded not guilty and claimed to be tried.
4. The prosecution adduced the evidence of 8 (Eight) witnesses and exhibited several
documents to substantiate its stance. On the incriminating circumstances arising against the
appellant, several questions were asked to the appellant and his plea was of total denial.
5. Heard Mr. F. Haque, learned counsel for the appellant and Mr. K. Baishya, learned
Additional Public Prosecutor, Assam.
6. Learned counsel for the appellant laid stress in his argument that the total weight of
the contraband was 20.952 grams but the Trial Court has erroneously convicted the appellant
under Section 22(c) of the NDPS Act. Commercial quantity of tramadol containing capsule is
250 grams whereas in this case the total weight was found to be 20.952 grams.
7. It is further submitted that Section 42 of the NDPS Act has not been complied with and
the evidence has proved the non-compliance.
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8. Learned counsel for the appellant further laid stress in his argument that the vehicle
was halted by the Investigating Team, consisting of four persons and one police personnel is
stated to have interrogated the driver of the vehicle. The owner of the vehicle has been
exonerated. The vehicle was searched by a constable and as per Section 42 of the NDPS Act,
a constable has no power to search a vehicle suspected to be transporting contraband.
9. The evidence of the independent witnesses Hasen Ali, PW-2 reveals that he affixed his
signature at the place of occurrence, whereas, Gopi Rabha (PW-1), a constable has deposed
that the seizure list was prepared at the police station. It is further argued by the learned
counsel for the appellant that the evidence of Gopi Rabha, PW-1 reveals that the appellant
was brought to the police station in his own vehicle whereas on the contrary, Nipumoni
Choudhury, PW-6 stated that the appellant was brought to the police station in a
departmental vehicle. It could not be ascertained specifically from the evidence of Nipumoni
Choudhury, PW-6 if the seizure was made at the police station or at the spot.
10. Learned counsel for the appellant further emphasized through his argument that the
owner of the vehicle was not even made a witness despite the fact that the vehicle which was
seized in connection with this case was given in zimma to the owner of the vehicle.
11. It is further argued that three samples were prepared and only one sample was sent
for chemical examination whereas the other two samples were not sent for chemical
examination.
12. Per contra, learned Additional Public Prosecutor laid stress in his argument that Section
42, 43 and 53 of the NDPS Act has been complied with. 432 capsules weighing 20.95 grams
was recovered below the driver’s seat, which implicates that the driver was intentionally
carrying the contraband. Although charge sheet was submitted under Section 22(b) of the
NDPS Act, charge was framed under Section 22 (c) of the NDPS Act.
13. According to Section 42 of the NDPS Act, an authorized person is empowered to
conduct the search and seizure of any contraband.
14. It has been held by the learned Trial Court that compliance of Section 50 of the NDPS
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Act was not required as in this case the capsules/drug were not found in possession of the
appellant but it was found under the driver’s seat. It has been held that the defence has
failed to establish that provisions of Section 42 of the NDPS Act was not complied with. The
cross-examination of PW-1 Gopi Rabha, PW-4 Birbal Das and PW-5 Dhananjay Rabha reflects
that no mens rea could be established to falsely implicate the appellant and the fact that as
they were policemen, it cannot be presumed that their evidence is not trustworthy. Rather,
the evidence of the independent witnesses has substantiated the fact that the vehicle was
being searched and the police recovered capsules from the vehicle. The entire investigation
initiated at the naka checking point to the seizure of the drug and the vehicle, forms a part of
the same transaction as per Section 6 of the Indian Evidence Act, 1872 (Evidence Act for
short).
15. The contradictions elicited by the defence were held to be minor contradictions as the
evidence has not been thwarted by the minor contradictions.
16. The contradictions are as follows :-
PW-1 deposed in his cross-examination that their team had stopped 15/20 vehicles
before the appellant was apprehended.
PW-4 has deposed that a similar number of vehicles were checked, whereas PW-5 has
deposed that they have checked only 1/2 vehicles before the appellant was apprehended.
Further the contradictions pointed out by the defence relating to the place where
seizure list was prepared, was also ignored.
17. It was observed by the learned Trial Court that PW-2 and PW-3 have clearly stated
that they have affixed their signatures on Exhibit P-1 and at the place where their
signatures were affixed is not relevant. It was thus held by the learned Trial
Court that this minor contradiction does not discredit the credibility of the witnesses. It has
been held by the learned Trial Court that Section 52-A of the NDPS Act has been properly
complied with and the procedure has been properly followed by the investigating team.
Although safe custody of the contraband was not proved, but it was held by the learned Trial
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Court that the evidence of PW-7, coupled with the contention on Exhibit P-6 & P-7 and MO-1,
which have clear recitals that the samples were duly sealed and the reports of the Chemical
Examiner shows that the packets were received in sealed condition. The presumption under
Section 114(a) of the Evidence Act that all official acts have been duly complied with,
completely seals the evidence. It was held that it is not proper approach to proceed with
doubt or disbelief until there is something to excite a possibility of lurking suspicion. It was
observed that benefit of doubt is not like a frail willow bending to every whiff of hesitancy
and the defence cannot be permitted to make a mountain out of a mole hill.
18. To decide this case in its proper perspective, the evidence is re- appreciated.
19. Gopi Rabha, a constable deposed as PW-1 that on 28.03.2022, at about 5.30 pm, he
was on duty along with the informant, checking vehicles near Civil Hospital, Bhalukdubi, at
Goalpara. At that time, Mr. Nipumoni Choudhury, (PW-6), informant received an information
over phone that a ‘Maruti Alto’ vehicle bearing registration No. AS18D-8110, carrying
contraband would be approaching the checkpoint from Goalpara town. Within 30 minutes,
they intercepted the vehicle and saw the appellant driving the vehicle. The vehicle was
searched and the informant recovered strips of blue coloured capsules from underneath the
driver’s seat. The capsules were wrapped with white paper. The capsules were seized and
they brought the appellant along with the seized capsules and the vehicle to the Goalpara
police station.
20. Another official witness, Mr. Birbal Das, deposed as PW-4 that the incident occurred on
28.03.2022 and at that time, he was posted as Home Guard at Goalpara Town Outpost. At
about 5.30 pm, he was on duty at the naka checking point at Goalpara-Agia road, Civil
Hospital, along with the informant (PW-6), G. Rabha (PW-1), Dhananjay Rabha (PW-5),
Chandan Ray, Biswa Brahma and Tilak Das. At that time, they stopped the ‘Maruti Alto’
proceeding from Agia towards Goalpara. They searched the vehicle and found 3 packets of
capsules underneath the driver’s seat of the vehicle. The appellant was the driver of the
vehicle and he was alone in the vehicle. The informant seized the capsules and they all took
the appellant to the Goalpara P.S. The evidence of PW-1 and PW-4 is corroborated by the
evidence of Dhananjay Rabha who was also serving as a Constable at that point of time.
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21. Dhananjay Rabha deposed as PW-5 that on 28.03.2022, he along with constables Gopi
Rabha (PW-1), Birbal Das (PW-4) and Chandan Ray were patrolling the streets of Goalpara at
about 5 p.m. The informant then directed them to proceed to Goalpara Civil Hospital for naka
checking of the vehicles plying through Goalpara-Agia road. Accordingly, he (PW-5) along
with the informant, PW-6 and PW-1 and other police personnel, reached Goalpara Civil
Hospital and started checking the vehicles. At about 5:30 p.m., they stopped the Maruti Alto
vehicle bearing registration No. AS-18D-8110 approaching from Agia towards Goalpara. They
stopped the vehicle and found 3 boxes of capsules underneath the seat. The appellant was
the driver of the vehicle.
22. It is apt to mention at this juncture that PW-5 could not recall if there were other
occupants in the vehicle. PW-5 further deposed that the capsules were taken into custody by
the informant and then he called some witnesses and showed them those capsules.
Thereafter, they took the appellant to the Goalpara P.S. PW-5 has identified the capsules as
MO-1.
23. The informant, Nipumoni Choudhury deposed as PW-6 that on 28.03.2022, he was
posted as TSI at Goalpara under Goalpara P.S. On that day at about 5:30 p.m., he was
leading a team of policemen in conducting naka checking at Agia-Goalpara road, near
Goalpara Civil Hospital at 5:50 p.m. He signaled a silky silver colored Maruti Alto-800 bearing
registration No. AS18D-8110 moving towards Agia from Goalpara side to the stop. The vehicle
was stopped and the driver was the sole occupant of the vehicle. The appellant was the
driver and he alighted from the vehicle. He (PW-6) along with Birbal Das, Dhananjay Rabha,
Gopi Rabha and Chandan Ray searched the vehicle and recovered three boxes of SPAS-
TRANCAN + capsules beneath the driver’s seat in a concealed manner. He then took out 3
boxes from the vehicle and seized the same and prepared the seizure list. He also seized the
vehicle along with the capsules and weighed the capsules with a weighing machine from the
police station. The weighing machine was also seized before weighing the boxes. The total
weight of the 3 boxes of capsules was 397 grams including the boxes. Then, he along with
the appellant and the seized contraband went to the Goalpara P.S. in his official vehicle,
while Havildar, Rezzak Ali brought the appellant’s vehicle to the Goalpara P.S. He then handed
over the appellant, three boxes of contraband, and the vehicle to the O/C, Goalpara
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P.S., (Inspector- Debajit Das). He lodged an FIR with the police at Goalpara P.S. He has
proved his signature on the seizure list relating to seizure of the capsules and the vehicle, as
Ext. P-1(3), seizure list relating to seizure of weighing machine as Ext. P-2(1) and his
signature on the FIR as Ext.P-3(1).
24. It is pertinent to mention at this juncture that the learned counsel for the appellant laid
stress in his argument that a constable cannot conduct search and seizure of contraband in
violation of Article 42 of the NDPS Act. However, the evidence of PW-1, PW-4 and PW-5
clearly reflects that the informant, a TSI conducted the search and seizure at naka checking
point after intercepting the vehicle. It is true that the evidence of PW-4, a home guard and
PW-5, a constable depicts that they have also started checking the vehicle but the evidence
of PW-6 clearly depicts that the team was led by PW-6, and of course, PW-6, an SI, cannot
check the vehicle alone and he checked the vehicle with the assistance of PW-1, PW-4 and
PW-5.
25. Mr. Imadadul Hussain is a retired SI of Assam Police and he has deposed as PW-7 that
he was posted as SI at Goalpara P.S. and on that day, he was entrusted by the O/C of
Goalpara P.S. to investigate the case of Goalpara P.S. No. 78/2022 under Sections 22(b) of
the NDPS Act. He embarked upon the investigation and found the informant (PW-6) and the
appellant at Goalpara P.S. The informant handed over 3 boxes of SPAS-TRANCAN + capsules
in an open condition and two seizure lists. He then arrested the appellant and produced him
along with two seizure lists and the seized capsules before the learned CJM, Goalpara on the
same day. The appellant was remanded to judicial custody and the seizure list was seen by
the learned CJM. He also made a prayer under Section 52(A) of the NDPS Act to the learned
CJM for certifying the correctness of the inventory, photographs and samples of the suspected
seized contraband. He prepared the inventory of the seized contraband in presence of the
learned CJM, Goalpara which consisted of 3 boxes of SPAS-TRANCAN + capsules consisting of
18 strips and each strip consisting of 24 capsules. A total of 432 capsules were found and
photographs of the seized contraband were taken in presence of learned CJM, Goalpara.
These photographs were also certified, and then he took 3 sets of samples of the seized
capsules and each sample consisted of 1 strip of 24 capsules and each sample weighed 18
grams and marked as samples “S”, “G” and “D” respectively. All the 72 capsules were taken in
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three sets of samples out of the total seized 432 capsules. The remaining contraband
weighing 342 grams were segregated and packed in brown packets, wrapped with white cloth
and sealed accordingly. Thereafter, he forwarded the sample “S” to the Directorate of Forensic
Science (DFS for short) for chemical examination through the Office of the S.P., Goalpara. He
recorded the statements of the witnesses under section 161 of the Cr.PC and visited the place
of occurrence and prepared the sketch map. On receipt of the forensic report, he submitted
charge sheet against the appellant under section 22(b) of the NDPS Act and he also
submitted the sample G. He has also proved the seizure lists as Exhibits P-1 and P-2 and M0-
1 as the sample” G” of the seized drugs. He has proved his prayer before the learned CJM as
Exhibit P-4 and his signature as Exhibit P-4(1). He has proved Exhibit P-5 and his prayer
under section 52A of the NDPS Act and his signature on his prayer as Exhibit P-5(1).
He has proved Exhibit P-6 as the inventory of the seized capsules which was prepared in
presence of the CJM, Goalpara and Exhibit P-6(1) as his signature and he has identified the
signature of the learned CJM as Exhibit P-6(2). He has proved Exhibit P-7 as the test memo
prepared before the learned CJM, Goalpara and Exhibit P-7(1) as his signature. MO-2 are the
series of photographs duly certified by the learned CJM. Exhibit-P-8 is the sketch map and he
has proved Exhibit-P-8(1) as his signature on the sketch map and his signature on the charge
sheet as Exhibit- P-9(1).
26. It is pertinent to mention at this juncture that no Malkhana register was exhibited to
prove the safe custody of the contraband seized on the previous day, i.e., on 28.03.2022. The
articles were seized on 28.03.2022, whereas there is not a whisper in the evidence where the
seized contraband was deposited after seizing the same and producing the contraband before
the learned CJM on the following day, i.e., on 29.03.2022.
27. Learned counsel for the appellant has laid stress in his argument that PW-1 stated that
the seizure list was prepared after they returned to the police station, whereas, on the
contrary, the informant as PW-6 has testified in his cross-examination that he prepared the
seizure list on the bonnet of his departmental vehicle one hour before sunset.
28. It is true that the evidence of all the witnesses i.e., PW-1, PW-2, PW-3, PW-4, PW-5 as
well as PW-6, clearly reflects that the appellant and 3 seized boxes of capsules were taken
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along with the seized vehicle to the police station, and this has been substantiated by the
evidence of PW-7, that on 29.03.2022, TSI Nipumoni Choudhury, (PW-6) handed over two
seizure lists and the seized capsules in open condition, but it is not clear if these articles were
handed over to him on 29.03.2022 or on 28.03.2022. It is also not clear from the evidence
where these articles were kept before the articles were produced before the learned CJM.
29. It is true that through the evidence of the informant PW-6, and the evidence of the IO
PW-7, it could be deciphered that the capsules were in custody of the police, but there is no
evidence if the capsules were in safe custody and no malkhana register was exhibited by the
prosecution and no evidence to this effect was produced by the prosecution.
30. An independent witness Md. Hasen Ali deposed as PW-2 that the incident occurred
about 5 months ago at 5 pm in front of the Civil Hospital at Bhalukdubi, Goalpara. He saw the
informant and his staff checking all the vehicles plying on the road. Suddenly, the informant
(PW-6) recovered capsules after checking the vehicle and public gathered near the vehicle.
He went ahead and noticed a ‘Maruti Alto’ vehicle and the appellant was the driver of the
vehicle. The capsules were recovered from underneath the driver’s seat. He has proved his
signature on the seizure list as Ex. P-1(1).
31. It would be apt to reiterate that he has mentioned in his cross-examination that he has
affixed his signature on a pre-written document.
32. Another independent witness, who is also a driver Md. Sahidul Islam deposed as PW-3
that the incident occurred about 5 months ago at 5/6 pm. He saw the informant and his staff
checking the vehicle while he (PW-3) was standing at the gate of the Civil Hospital. He then
heard a commotion and went ahead, and saw the police detaining a Maruti car. He noticed
the policemen taking out 3/4 boxes containing capsules from the vehicle and he saw the
appellant being surrounded by the police. He, then learnt that the appellant was carrying
capsules in the vehicle. He has proved his signature on the seizure list as Exhibit-P-1 (2).
33. From the chronology of events, it is thereby held that before the samples were
forwarded for chemical examination, compliance of Section 55 of the NDPS Act has not been
proved by the prosecution. The samples arrived at the DFS on 31.03.2022 after they were
seized on 29.03.2022. It would be apt to reiterate that the samples were received by PW-7 in
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open condition and PW-7 was not the Officer-In-Charge of the Police Station. Before the
inventory was prepared on 29.03.2022, the safe custody of samples in the Malkhana or in any
secured Godown, has not been proved by the prosecution or by PW-6, who recovered and
seized the samples. Non-compliance of Section 55 of the NDPS Act draws an adverse
inference against the prosecution as well as against the investigation. A benefit of doubt is
thus extended to the appellant.
34. The learned Trial Court has held that this discrepancy in the evidence can be safely
brushed aside as the defence has not disputed the sealing of the samples during cross-
examination. The evidence of PW-7, coupled with the contents of Ex-P-6, P-7 and MO-1, have
clear recitals that the samples were duly sealed. Moreover, Ex-P-10 is the report of PW-8,
Chemical Examiner, which shows that the packets were received in a sealed condition. Thus,
in its presumption under Section 114 (a) of the Evidence Act, all officials acts have been
conducted correctly and regularly as attached to the police officers. It is not proper approach
to proceed with doubt or disbelief unless there is something to excite suspicion. It was held
by the Trial Court that from the evidence of PW-7 and PW-8, it is clear that the samples were
prepared on 29.03.2022 and the same were sent to the DFS on 30.03.2022 and received by
the DFS on 31.03.2022, without delay of even a day.
35. The Trial Court has held that the ratio of the decision in Valsala vs. State of Kerala
reported in AIR 1994 SC 117 wherein it has been observed that the prosecution could not
prove its case beyond reasonable doubt as there was a delay of 3 (Three) months in
forwarding the samples for analysis, is not applicable to this case. In this case the samples
were promptly forwarded to DFS. It was held by the learned Trial Court that the decision of
Hon’ble Supreme Court in Valsala (supra) is not applicable to the instant case.
36. This finding of the learned Trial Court bad in law. The evidence of PW-7 clearly depicts
that on 29.03.2022, he was entrusted with the investigation and PW-6 handed over 3 (Three)
boxes of capsules in open condition along with two seizure lists. It has to be borne in mind
that the evidence of the other witnesses PW-1, PW-4, PW-5 and PW-6 clearly reveals that
naka checking was held at 5.50 pm and the capsules were recovered and seized at the same
time. There is not even a clue where the capsules were deposited before the inventory was
prepared and the samples were drawn and the articles were seized on 29.03.2022, which is
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not in conformity to the procedure under Section 55 of the NDPS Act, which mandates :
“An officer-in-charge of a police station shall take charge of and keep in safe custody, pending
the orders of the Magistrate, all articles seized under this Act within the local area of that
police station and which may be delivered to him, and shall allow any officer who may
accompany such articles to the police station or who may be deputed for the purpose, to affix
his seal to such articles or to take samples of and from them and all samples so taken shall also
be sealed with a seal of the officer-in-charge of the police station.”
37. In this instant case neither PW-6 nor PW-7 were the officers-in-charge of the Police
Station.
38. Undoubtedly the evidence of the official witnesses cannot be discarded solely on the
fact that the independent witnesses have not supported the evidence of the official witnesses,
but at the same time, the discrepancies in the investigation and the evidence cannot be
ignored by a Court of Law. Here in this case, PW-7, an official witness has deposed that the
contraband was handed to him in open condition on 29.03.2022. The evidence is clear that
the contraband was seized 28.03.2022 and there is not even a hint how the contraband was
kept and where the contraband was deposited for safe custody after seizure of the
contraband on the previous date. Thus, the proper preparation of the inventory before the
Magistrate also does not help improve the prosecution case.
39. The Scientific Officer Chandan Das deposed as PW-8 that on 31.03.2022, while
working as Scientific Officer, Drugs & Narcotic Division, Directorate of Forensic Science,
Assam, Guwahati, he received a parcel from the Director of DFS for chemical analysis report.
The parcel consisted of one Exhibit enclosed in a sealed envelope. The facsimile of the seal
was found to be an impression of “5”.
40. The description of the articles are as follows :-
· “A sealed envelope marked as “SAMPLE-S” containing a strip with total 24 blue
coloured capsules weighing 14.4 g (0.60 g x 24 = 14.4 g), branded as
“SPAS.TRANCAN PLUS” which he marked as DN-825/2022.
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On examination of the Sample S as per United Nations Testing procedure, his findings are
as follows :
· DN-825/2022 tested positive for Tramadol and the amount of Tramadol per capsule
was found to be 48.5 mg.”
41. In his cross-examination, he has testified that he did not receive the samples of the
seal and he could not remember if the envelope contained the signature of the witnesses or
seizing officer. He has not mentioned about the amount of other contraband besides tramadol
found in the capsules, in his report.
42. By highlighting the cross-examination of PW-8, learned counsel for the appellant laid
stress in his argument that tramadol was not of commercial quantity.
43. The argument of the learned Additional Public Prosecutor that the inventories were
properly prepared and certified by the CJM, offers no support to the prosecution case.
44. The testimonies of the witnesses were also found to be diverse when PW-1 deposed in
his cross-examination that the seizure list was prepared after they returned to the police
station whereas on the contrary PW-2 deposed in his cross-examination that he affixed his
signatures on the seizure list where the capsules were found. He has also affixed his
signature on a pre-written document. PW-6 however testified that he took out three boxes
from the vehicle and seized it and prepared the seizure list. The seizure list was prepared on
the bonnet of his departmental vehicle before sun set.
45. Owing to the diversities between the evidence of witnesses, the appellant deserves a
benefit of doubt.
46. In the wake of the foregoing discussions, it is thereby held that a benefit of doubt has
to be extended to the appellant. This is a case regarding a heinous offence. The graver the
offence, the stricter the standard of proof. The prosecution has failed to prove this case
beyond a reasonable doubt and the appellant is extended the benefit of doubt. Thereby, the
judgment and order dated 01.03.2023 and 02.03.2023 passed by the learned Special Judge,
Goalpara in connection with Special Case No. 14/2022 is hereby set aside.
47. The appellant may be set at liberty forthwith if he is not wanted in any other case.
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48. In terms of the above observation, this appeal stands disposed of.
49. Send back the Trial Court Record.
JUDGE
Comparing Assistant