Gauhati High Court
Crl.A./69/2024 on 15 May, 2025
GAHC010050842024
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Appeal No. 69/2024
1. Goljar Uddin Ahmed @ Raju.
2. Gafur Uddin @ Rakesh.
Both are sons of Rahim Uddin Ahmed,
Resident of Village-Ward No.13, Dhubri Town,
I.G. Road, PO-Dhubri, PS-Dhubri,
District-Dhubri, Assam, Pin-783301.
......Appellants.
-Versus-
The State of Assam,
Represented by the Public Prosecutor, Assam.
......Respondent.
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Mr. S. Das. ……Advocate.
For the Respondent : Mr. B. Sarma, Addl. P.P.
......Advocate.
Date of Hearing : 08.04.2025 & 10.04.2025
Date of Judgment : 15th May, 2025
Crl.A. 69/2024 Page 1 of 21
JUDGMENT AND ORDER
Heard Mr. S. Das, learned counsel for the appellants and also heard
Mr. B. Sarma, learned Additional Public Prosecutor, Assam, appearing for
the State respondent.
2. Judgment and order dated 03.01.2024 passed by the learned Special
Judge (Addl.), Dhubri, (hereinafter „Trial Court‟ for short) in Special Case
No.394/2022 is impugned in this appeal, under Section 374 read with
Section 389 of the Code of Criminal Procedure, 1973 and Section 36B of
the Narcotic Drugs and Psychotropic Substances Act (NDPS), Act, 1985.
3. The background facts, leading to filing of the present criminal
appeal, are briefly stated as under:-
“On 12.07.2022, at about 10:30 p.m., acting on a tip off, S.I.
Chandan Rout, I/c of Bazar T.O.P. under Dhubri P.S. conducted
search in the dwelling house of Raju @ Goljar Uddin and Gafur
Uddin @ Rakesh and found large quantity of suspected contrabands
i.e. cough syrups stored in their house for selling in the locality.
Accordingly, the I.O. seized total 13 bottles of Eskuf cough syrups,
having batch No.LESL-346, Mfd. dt. 08/2021 and 11 bottles, having
batch No.LESL-346, Mfd. dt. 08/2021, from the room of the present
appellants, namely, Raju and Rakesh, respectively. Thereafter, the
informant had lodged one FIR with the Officer-in-Charge, Dhubri
P.S., upon which Dhubri P.S. Case No.363/2022 had been registered
under Section 22(c) of the NDPS Act and investigation was carried
out and on completion of investigation the I.O. had laid charge-
sheet against the appellants to stand trial in the Court under Section
22(c)/25 of the NDPS Act.
Crl.A. 69/2024 Page 2 of 21
Thereafter, the learned Trial Court after hearing both the
parties, had framed charges against the present appellants under
Section 22(c)/25 of the NDPS Act and on being read and explained
over, both the appellants pleaded not guilty to the same and claimed
to be tried.
Thereafter, the learned Trial Court had examined as many as
10 witnesses and also examined one Court witness and thereafter,
examined the appellants under Section 313 Cr.P.C. And thereafter,
hearing arguments of both the parties, found the present appellants
guilty under Section 22(c) of the NDPS Act and convicted them
accordingly under the said Section of law. But, the learned Trial
Court had acquitted them of the charge under Section 25 of the
NDPS Act. Then, after hearing the appellants under Section 235(2)
Cr.P.C., the learned Trial Court has sentenced the appellants to
undergo rigorous imprisonment for 10(ten) years and also to pay a
fine of Rs.1,00,000/- each, in default to undergo rigorous
imprisonment for another one year.”
4. Being aggrieved, the appellants approached this Court by filing the
present appeal on the following grounds:-
(i) That, the learned Trial Court had passed the impugned judgment
and order mechanically and without addressing the points raised and
also the precedent cited before him.
(ii) That, the learned Trial Court had failed to appreciate the evidence in
its proper perspective while holding guilty of the accused under
Section 22(c) of the NDPS Act.
Crl.A. 69/2024 Page 3 of 21
(iii) That, the learned Trial Court had failed to consider that the
mandatory provisions of the NDPS Act have not been complied with
by police and convicted the appellants illegally.
(iv) That, the learned Trial Court had failed to consider the fact that the
seizure of the alleged contrabands had not been proved by
prosecution side and two seizure witnesses i.e. PW-1 and PW-3 did
not see the seizure and PW-3 was declared hostile and the
contradiction brought on record, were not proved in accordance with
law.
(v) The learned Trial Court had also failed to take note of the fact that
seizure has not been proved.
(vi) The learned Trial Court had also failed to consider that the
Investigating Officer had failed to exhibit the samples as required
under Section 53 of the NDPS Act and as such, the procedure
adopted in sampling under Section 52A of the NDPS Act is illegal.
(vii) The learned Trial Court has failed to consider the fact that the
prosecution side had failed to prove the case beyond reasonable
doubt and under such circumstances, it is contended to allow this
appeal by setting aside the impugned judgment and order.
5. Mr. Das, learned counsel for the appellants, submits that the seizure
of the contraband substances from the house of the appellants had not
been proved and two of the seizure witnesses had never whispered any
word about the seizure and one seizure witness turned hostile and his
statement was not proved in accordance with law. Secondly, Mr. Das
submits that the seized articles were not produced and exhibited before
the Court and this raise a serious doubt about the veracity of the
prosecution case and in support of his submission, Mr. Das has referred to
Crl.A. 69/2024 Page 4 of 21
a decision of Hon‟ble Supreme Court in the case of Noor Aga v. State
of Punjab & Anr., reported in (2008) 16 SCC 417, specially paragraph
Nos.96, 99 and 100 and also the decision of Hon‟ble Supreme Court in the
case of Nilesh Suryakant Shah v. State of Madhya Pradesh,
reported in (2013) 14 SCC 527, in paragraph Nos.10 and 12. Mr. Das
has also referred to another decision of Hon‟ble Supreme Court in the case
of Bharat Aambale v. State of Chhattisgarh, reported in 2025 SCC
OnLine SC 110, especially to paragraph No.37 and another decision of
Hon‟ble Supreme Court in the case of Jitendra & Anr. v. State of
M.P., reported in (2004) 10 SCC 562 and another decision of Hon‟ble
Supreme Court in the case of State of Rajasthan v. Sahi Ram,
reported in (2019) 10 SCC 649. Mr. Das also submits that Section 55 of
the NDPS Act had not been complied with and the seal was also not
produced and proved before the Court and as the mandatory provision had
not been complied with and as the sample had not been produced before
the Court to relate the seized articles, allegedly seized from the possession
of the accused/appellants, it cannot be said that the prosecution had
succeeded in establishing the case beyond all reasonable doubt and
therefore, Mr. Das contended to set aside the impugned judgment and
order and to acquit the accused.
6. Per contra, Mr. B. Sarma, learned Additional Public Prosecutor,
Assam, submits that though the samples were not produced before the
Court, the list of sample and the malkhana register were produced before
the Court and further Mr. Sarma submits that non-production of the
sample as held by Hon‟ble Supreme Court in the case of Bharat Aambale
(supra), especially in paragraph Nos.33 and 34 is not fatal. However, Mr.
Sarma fairly submits that the samples were not produced before the Court,
but, in spite of non-production of the aforesaid sample and the seal, the
Crl.A. 69/2024 Page 5 of 21
prosecution side has succeeded in bringing home the charge against the
accused, which are serious in nature and under such circumstances, Mr.
Sarma had contended to dismiss the appeal.
7. Having heard the submission of learned counsel for both the parties,
I have carefully gone through the memo of appeal and the grounds
mentioned therein and also gone through the decisions referred by the
learned Advocates of both sides.
8. That, perusal of the impugned judgment and order of conviction,
dated 03.01.2024, indicates that the FIR was lodged by S.I. Chandan Rout
on 13.07.2022, on the basis of information received on 12.07.2022, at
about 10:30 p.m. The information relates to stocking of huge quantity of
contraband substances by the appellants in their house by the present
appellants, namely, Raju and his brother Rakesh. It also appears that
thereafter, search was conducted in their house after observing relevant
formalities, 13 bottles of Eskuf cough syrup were recovered from the room
of appellant No.1 Raju and 11 bottles of Eskuf cough syrup were recovered
from the room of appellant No.2 Rakesh and the same were seized in
presence of witnesses by preparing seizure lists (Exhibit-P1 & P2).
Thereafter, the informant had lodged the FIR (Exhibit-P9) on 13.07.2022,
upon which Dhubri P.S. Case No.363/2022 has been registered under
Section 22(c) of the NDPS Act and investigation was carried out, which
culminated in submission of charge-sheet (Exhibit-P20) against the present
appellants under Section 22(c) and 25 of the NDPS Act. The charge-sheet
was filed on 21.10.2022.
9. It also appears that the learned Trial Court had framed following
charges against the accused persons. Firstly, that on 12.07.2022 at about
11:40 p.m. and 11:20 p.m. at I.G. Road, Ward No.13, Dhubri, the
appellant Nos.1 and 2, possessed 13 bottles of Eskuf cough syrup and 11
Crl.A. 69/2024 Page 6 of 21
bottles of Eskuf cough syrup, respectively, in contravention of the
provision of the NDPS Act and thereby committed an offence punishable
under Section 22(c) of the said Act and secondly, on the same day, same
time, being the owner and occupier of a house situated at I.G. Road, Ward
No.13, Dhubri, knowingly permitted or used for commission of offence
punishable under the provision of NDPS Act and thereby committed an
offence punishable under Section 25 of the said Act.
10. It also appears that thereafter, the learned Trial Court had examined
as many as 11 witnesses, including one Court witness and thereafter,
considering the evidence so brought on record and also the documents so
exhibited, found the charge under Section 25 of the NDPS Act not proved
and acquitted both the appellants of the said charge. However, the learned
Trial Court had arrived at a finding that the prosecution side has
succeeded in bringing home the charge under Section 22(c) of the NDPS
Act and convicted the present appellants to undergo rigorous
imprisonment for 10 (ten) years and also to pay a fine of Rs.1,00,000/-
each with default stipulation. As no cross appeal has been preferred by the
State for acquittal of the appellants under Section 25 of the NDPS Act, the
discussion will confine to the charge under Section 22(c) of the NDPS Act.
11. Section 22 of the NDPS Act provides that whoever, in contravention
of any provision of this Act or any rule or order made or condition of
licence granted thereunder, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or uses any
psychotropic substance shall be punishable – (c) where the contravention
involves commercial quantity, with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to twenty years
and shall also be liable to fine which shall not be less than one lakh
rupees, but which may extend to two lakh rupees.
Crl.A. 69/2024 Page 7 of 21
12. In the instant case, the charge relates to possession of 13 bottles of
Eskuf cough syrup by the appellant No.1 and 11 bottles of Eskuf cough
syrup by the appellant No.2 in contravention of the provision of NDPS Act.
Now, let it be seen how far the prosecution side had succeeded in
establishing the possession of the contraband substances by the
appellants. The prosecution side has examined the informant, S.I.
Chandan Rout as PW-2. His evidence reveals that on receipt of secret
information on 12.07.2022, about stocking of huge quantity of contraband
substances by one Raju and Rakesh, two brothers, resident of I.G. Road,
the Officer-in-Charge, Dhubri recorded a G.D. Entry No.340 (Exhibit-P3)
and on being authorized by the O/C, he along with police party proceeded
to the place of occurrence and conducted search in the house of the
appellants in presence of two witnesses, namely, Eadul Hoque and
Mojammel Hoque and thereafter, recovered 13 bottles of Eskuf cough
syrup containing 100 ml each, from the room of accused Raju and 11
bottles from the room of Rakesh and seized the same preparing two
seizure lists (Exhibit-P1 and P2) in presence of witnesses and thereafter,
packed and sealed the contraband substances, obtained signatures of the
accused persons and he also put his signature and thereafter, he recorded
the statement of the seizure witnesses and also interrogated the accused
persons and thereafter, he returned to the police station with the accused
persons and the seized articles and thereafter, he had handed over the
seized articles to the Officer-in-Charge with accused persons and took
receipt of the O/C, Dhubri P.S. His evidence also reveals that he also
seized the malkhana register as the seized articles were kept in malkhana
and kept the same in the zimma of the malkhana in-charge of the police
station. Thereafter, he had recorded the statement of the Officer-in-
Charge, Dhubri Police Station and thereafter, he had lodged the FIR on
13.07.2022. He also confirmed Exhibit-P4 – authorization letter, Exhibit-P5
Crl.A. 69/2024 Page 8 of 21
– another seizure list, Exhibit-P6 the receipt given by the Officer-in-Charge,
Exhibit-P7 the zimmanama of malkhana register and Exhibit-P8 the
certified copy of information given to the higher authority, under Section
42(2) of the NDPS Act.
13. The appellants herein had cross-examined the PW-1 and it is elicited
that he did not obtain any search warrant and he did not inform any
Gazetted Officer or Magistrate about the search and his evidence that he
had recovered the seized articles from the room of accused Raju and
Rakesh remained unrebutted in cross-examination.
14. PW-1, namely, Eadul Hoque is one of the seizure witnesses and PW-
3 is another seizure witness, namely, Mozammel Hoque. The evidence of
PW-1 Eadul Hoque reveals that he knows the accused being his
neighbours and he confirmed Exhibit-P1, the seizure list and Exhibit-P2,
another seizure list and confirmed his signatures. His evidence also reveals
that on the date of occurrence at about 10/10:30 p.m. while he was
standing in front of his house, then 2/3 police vehicles arrived at there and
then S.I. Chandan Rout told him that police will conduct search operation
in the house of accused Raju alias Guljar Uddin Ahmed and Rakesh alias
Gofur Uddin and asked him to witness the search operation along with
Mujammel Hoque, who was also standing on the road in front of the house
of the accused persons. Thereafter, police personnel entered into the
house of the accused persons and after about an hour the police personnel
came out and informed that 24 nos. of cough syrup bottles were recovered
and police told him that 13 bottles were recovered from the possession of
accused Raju and 11 bottles were recovered from the possession of
accused Rakesh and then police took their signatures over the seizure lists
and left the place of occurrence. It is elicited in his cross-examination that
Crl.A. 69/2024 Page 9 of 21
he did not see what happened inside the house of the accused persons as
he was waiting outside.
15. Close on the heel of PW-1, PW-3 Mozammel Hoque also testified the
same fact that police took his signature over Exhibits-P2 & P1 and he do
not know about the case and his statement was also not recorded. The
prosecution side then declared him hostile and brought on record the
statement given by him before the Investigating Officer. But, the
prosecution side has failed to get the same confirmed through the
Investigating Officer. That being so, the evidence of PW-3 would be of no
assistance to prosecution.
16. PW-4 is S.I. Nilim Talukdar, who accompanied PW-2, the informant
and he stated that in presence of witnesses, the house of the two accused
persons was searched and suspected contraband substances were
recovered and seized from the house of the two accused persons.
17. PW-5 Hiren Kumar is the Sub-Divisional Police Officer, Gossaigaon,
who at the relevant time, i.e. on 13.07.2022, was posted at Dhubri and he
also accompanied the informant (PW-2) and reiterated the facts stated by
PW-2 and PW-4.
18. PW-6 is Md. Azad Hussain, who testified that he had no personal
knowledge about the incident and he was declared hostile and his
statement made before the police officer was brought on record, but the
same was not confirmed by the prosecution side through the I.O.
19. PW-7, Tofique Ahmed testified that he do not know anything about
the incident. PW-8 Ram Babu Pandit is the seizure witness of the malkhana
register, which was seized vide Exhibit-P5 and he deposed nothing about
the incident.
Crl.A. 69/2024 Page 10 of 21
20. PW-9 is the Scientific Officer, who examined the samples and
submitted his report (Exhibit-P13). His evidence reveals that the samples
he had examined gave positive test for codeine (present as codeine
phosphate) and the amount of codeine phosphate present in each bottle
was found to be 181.3 mg.
21. PW-10 is the Investigating Officer S.I. Baharul Islam, who had
submitted charge-sheet, being Exhibit-P20 and he had also exhibited
Exhibit-P14 – the sketch map, Exhibit-P15 – the report under Section 57 of
the NDPS Act, Exhibit-P16 – the arrest memo, Exhibit-P17 – another arrest
memo, Exhibit-P18 – the inventory, Exhibit-P19 – the list of samples and
Exhibit-P21 – the formal FIR. Admittedly, this witness did not record any
statement of the neighbours as shown in the sketch map and he prepared
two sets of samples of the contraband.
22. CW-1 is ASI Buddha Mohan Barman, who had exhibited the
malkhana register as Exhibit-C1. He deposed nothing about the seizure of
contraband substances.
23. Thus, it appears that there is no dispute that the contraband
substances recovered from the house of the accused persons gave positive
test for codeine phosphate. The report submitted by PW-9 is not disputed
by the accused during trial.
24. Having perused the evidence of 11 witnesses, so examined by the
prosecution side, I find that only the evidence of PWs-1, 2 and 3 are
relevant and important to decide the charges so framed against the
appellants. PW-2 is the informant, who had conducted search in the house
of the accused and also made seizure of the same and PWs-1 and 3 are
the seizure witnesses, but their evidence appears to be hearsay as at the
relevant point of time they were not present in the house of the appellants
from where the seizure was made. They heard about the recovery of
Crl.A. 69/2024 Page 11 of 21
contraband substances from P.W.2 and they put their respective
signatures over the seizure list as asked by the PW-2. Thus, the evidence
of PWs-1 and 3 in fact, not corroborating the version of the PW-2 in
respect of recovery.
25. Now, what is left to be seen is how far the evidence of PW-2 is
believable. It is well settled that if the evidence of a single witness is found
believable, is sufficient to establish the charge and conviction can be
recorded on the basis of the same. It is also well settled in catena of
decisions of Hon‟ble Supreme Court that the evidence of police official
unless supported by independent witness cannot be believed. Reference in
this context can be made to a decision of Hon‟ble Supreme Court in the
case of Baldev Singh v. State of Haryana, reported in (2015)
17 SCC 554, wherein it was held as under:-
“10. There is no legal proposition that evidence of
police officials unless supported by independent
evidence is unworthy of acceptance. Evidence of
police witnesses cannot be discarded merely on the
ground that they belong to police force and
interested in the investigation and their desire to
see the success of the case. Prudence however
requires that the evidence of police officials who
are interested in the outcome of the result of the
case needs to be carefully scrutinised and
independently appreciated. Mere fact that they are
police officials does not by itself give rise to any
doubt about their creditworthiness.”
26. But, in the case in hand, admittedly, there is no independent
material to support the evidence of PW-2. Admittedly, neither the seized
contraband articles nor the samples which were drawn up, has been
produced before the Court.
Crl.A. 69/2024 Page 12 of 21
27. The requirement of production of samples and the seized articles
during the course of trial has been emphasized by Hon‟ble Supreme Court
in number of cases. In the case of Noor Aga (supra), referred by Mr.
Das, Hon‟ble Supreme Court in paragraphs 91,92, 95, 96, 99 and 100, has
held as under:-
91. The logical corollary of these discussions is that the guidelines such as
those present in the Standing Order cannot be blatantly flouted and
substantial compliance therewith must be insisted upon for so that sanctity
of physical evidence in such cases remains intact. Clearly, there has been no
substantial compliance with these guidelines by the investigating authority
which leads to drawing of an adverse inference against them to the effect
that had such evidence been produced, the same would have gone against
the prosecution.
92. Omission on the part of the prosecution to produce evidence in this
behalf must be linked with a second important piece of physical evidence
that the bulk quantity of heroin allegedly recovered indisputably has also
not been produced in court. The respondents contended that the same had
been destroyed. However, on what authority it was done is not clear. Law
requires that such an authority must flow from an order passed by the
Magistrate. Such an order whereupon reliance has been placed is Exhibit
PJ; on a bare perusal whereof, it is apparent that at no point of time had any
prayer been made for destruction of the said goods or disposal thereof
otherwise. What was necessary was a certificate envisaged under Section
110(1-B) of the 1962 Act. An order was required to be passed under the
aforementioned provision providing for authentication, inventory, etc. The
same does not contain within its mandate any direction as regards
destruction.
XXX XXX XXX
95. The High Court proceeded on the basis that non-production of physical
evidence is not fatal to the prosecution case but the fact remains that a
cumulative view with respect to the discrepancies in physical evidence
creates an overarching inference which dents the credibility of the
prosecution. Even for the said purpose the retracted confession on the part
of the accused could not have been taken recourse to.
Crl.A. 69/2024 Page 13 of 21
96. Last but not the least, physical evidence relating to three samples
taken from the bulk amount of heroin was also not produced. Even if it is
accepted for the sake of argument that the bulk quantity was destroyed, the
samples were essential to be produced and proved as primary evidence for
the purpose of establishing the fact of recovery of heroin as envisaged
under Section 52-A of the Act.
99. We cannot but also take notice of other discrepancies in respect of
the physical evidence which are:
(i) The bulk was kept in cotton bags as per the panchnama, Ext. PC,
while at the time of receiving them in the malkhana, they were packed in a
tin as per the deposition of PW 5.
(ii) The seal, which ensures sanctity of the physical evidence, was not
received along with the materials neither at the malkhana nor at CFSL, and
was not produced in court.
100. Physical evidence of a case of this nature being the property of the
court should have been treated to be sacrosanct. Non-production thereof
would warrant drawing of a negative inference within the meaning of
Section 114(g) of the Evidence Act. While there are such a large number of
discrepancies, if a cumulative effect thereto is taken into consideration on
the basis whereof the permissive inference would be that serious doubts are
created with respect to the prosecution’s endeavour to prove the fact of
possession of contraband by the appellant.”
28. The same aspect has also been dealt with in the case of Sahi Ram
(supra) and in the case of Jitendra (supra) and in Bharat Aambale
(supra). In the case of Bharat Aambale (supra) in paragraph No.37
and also paragraph No.50, Hon‟ble Supreme Court has dealt with the
issues as under:-
“37. Section 52A sub-section (4) should not be conflated as a rule of
evidence in the traditional sense, i.e., it should not be construed to have laid
down that only the certified inventory, photographs and samples of seizedCrl.A. 69/2024 Page 14 of 21
substance will be primary evidence and nothing else. The rule of „Primary
Evidence‟ or „Best Evidence‟ is now well settled. In order to prove a fact,
only the best evidence to establish such fact must be led and adduced which
often happens to be the original evidence itself. The primary evidence for
proving possession will always be the seized substance itself. However, in
order to mitigate the challenges in preservation of such substance till the
duration of trial, due to pilferage, theft, degradation or any other related
circumstances, the legislature consciously incorporated sub-section (4) in
Section 52A to bring even the inventory, photographs or samples of such
seized substance on the same pedestal as the original substance, and by a
deeming fiction has provided that the same be treated as primary evidence,
provided they have been certified by a magistrate in substantial compliance
of the procedure prescribed. This, however, does not mean that where
Section 52A has not been complied, the prosecution would be helpless, and
cannot prove the factum of possession by adducing other primary evidence
in this regard such as by either producing the bulk quantity itself, or
examining the witnesses to the recovery etc. What Section 52A sub-section
(4) of the NDPS Act does is it creates a new form of primary evidence by
way of a deeming fiction which would be on par with the original seized
substance as long as the same was done in substantial compliance of the
procedure prescribed thereunder, however, the said provision by no means
renders the other evidence in original to be excluded as primary evidence, it
neither confines nor restricts the manner of proving possession to only one
mode i.e., through such certified inventory, photographs or samples such
that all other material are said to be excluded from the ambit of „evidence‟,
rather it can be said that the provision instead provides one additional limb
of evidentiary rule in proving such possession. Thus, even in the absence of
compliance of Section 52A of the NDPS Act, the courts cannot simply
overlook the other cogent evidence in the form of the seized substance itself
or the testimony of the witnesses examined, all that the courts would be
required in the absence of any such compliance is to be more careful while
appreciating the evidence.
50. We summarize our final conclusion as under:–
(I) Although Section 52A is primarily for the disposal and destruction of
seized contraband in a safe manner yet it extends beyond the
immediate context of drug disposal, as it serves a broader purpose of
also introducing procedural safeguards in the treatment of narcoticsCrl.A. 69/2024 Page 15 of 21
substance after seizure inasmuch as it provides for the preparation of
inventories, taking of photographs of the seized substances and
drawing samples therefrom in the presence and with the certification
of a magistrate. Mere drawing of samples in presence of a gazetted
officer would not constitute sufficient compliance of the mandate
under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the
seized substance must take place at the time of seizure as held in
Mohanlal (supra), yet we are of the opinion that the process of
inventorying, photographing and drawing samples of the seized
substance shall as far as possible, take place in the presence of the
accused, though the same may not be done at the very spot of
seizure.
(III) Any inventory, photographs or samples of seized substance prepared
in substantial compliance of the procedure prescribed under Section
52A of the NDPS Act and the Rules/Standing Order(s) thereunder
would have to be mandatorily treated as primary evidence as per
Section 52A subsection (4) of the NDPS Act, irrespective of whether
the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s)/Rules in terms of
Section 52A of the NDPS Act is only intended to guide the officers
and to see that a fair procedure is adopted by the officer in-charge of
the investigation, and as such what is required is substantial
compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the
Standing Order(s)/Rules thereunder will not be fatal to the trial
unless there are discrepancies in the physical evidence rendering the
prosecution’s case doubtful, which may not have been there had such
compliance been done. Courts should take a holistic and cumulative
view of the discrepancies that may exist in the evidence adduced by
the prosecution and appreciate the same more carefully keeping in
mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or
documentary inspires confidence and satisfies the court as regards
the recovery as-well as conscious possession of the contraband fromCrl.A. 69/2024 Page 16 of 21
the accused persons, then even in such cases, the courts can without
hesitation proceed to hold the accused guilty notwithstanding any
procedural defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said provision or rules
thereunder may lead the court to drawing an adverse inference
against the prosecution, however no hard and fast rule can be laid
down as to when such inference may be drawn, and it would all
depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either
following the procedure laid down in Section 52A of the NDPS Act
or the prosecution in proving the same, it will not be appropriate for
the court to resort to the statutory presumption of commission of an
offence from the possession of illicit material under Section 54 of the
NDPS Act, unless the court is otherwise satisfied as regards the
seizure or recovery of such material from the accused persons from
the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational
facts to show that there was non-compliance of Section 52A, either
by leading evidence of its own or by relying upon the evidence of the
prosecution, and the standard required would only be preponderance
of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section
52A of the NDPS Act, the onus would thereafter be on the
prosecution to prove by cogent evidence that either (i) there was
substantial compliance with the mandate of Section 52A of the
NDPS Act OR (ii) satisfy the court that such non-compliance does
not affect its case against the accused, and the standard of proof
required would be beyond a reasonable doubt.”
29. Again, Hon‟ble Supreme Court in the case of Union of India vs.
Jarooparam, reported in (2018) 4 SCC 334, on the issue of disposing
narcotic substance in derogation of the compliance contained in Section 52A of
the NDPS Act, this Court has held as follows:
“8. What transpires from the abovequoted paragraph is that after
taking out two samples of 30 gm each, the Executive MagistrateCrl.A. 69/2024 Page 17 of 21
returned the entire remaining seized property to the investigating
officer PW 6. To further ascertain the same, we have also carefully
perused the exact content of the proceedings dated 14-10-2004
(Annexure P-5) recorded by the Executive Magistrate, Singoli
Tappa. The proceedings recorded as far as the respondent herein is
concerned, read thus:-
Proceedings:-
14-10-2004:Case submitted.
Shri Harvinder Singh, Inspector (Investigating Officer), Narcotics
Bureau, Singoli has submitted three sealed packets of seized stuff in
Crime No. 1 of 2004 under Sections 8/18 and 8/29 of the NDPS Act,
1985. These packets were marked A, B and C and the details are
given as under:
1-A: On the packet marked “A” it was indicated that packet
contains 7.200 kg opium seized from Jaroopram, s/o Ganga Ram
Bishnoi. On opening the packet, transparent polythene bag was
found, in which again two polythene packets were found. One
polythene indicated 4.000 kg and the second one 3.200 kg opium,
respectively. A composite sample of 30-30 gm each have been taken
from the two packets and kept in a small plastic polythene and
marked A-3 and A-4 and sealed. The remaining seized stuff and
samples sealed as usual are handed over to the presenting officer
Shri Harvinder Singh, Inspector.
9. From the above proceedings, it is crystal clear that the remaining
seized stuff was not disposed of by the Executive Magistrate. The
contraband stuff as also the samples sealed as usual were handed
over physically to the Investigating Officer Harvinder Singh (PW 6).
Also the trial court in its judgment specifically passed instructions to
preserve the seized property and record of the case in safe custody,
as the co-accused Bhanwarlal was absconding. The trial court more
specifically instructed to put a note with red ink on the front page of
the record for its safe custody. In such a situation, it assumes
importance that there was nothing on record to show as to what
happened to the remaining bulk quantity of contraband. The absence
of proper explanation from the prosecution significantly undermines
Crl.A. 69/2024 Page 18 of 21
its case and reduces the evidentiary value of the statements made by
the witnesses.
10. Omission on the part of the prosecution to produce the bulk
quantity of seized opium would create a doubt in the mind of the
Court on the genuineness of the samples drawn and marked as A, B,
C, D, E, F from the allegedly seized contraband. However, the
simple argument that the same had been destroyed, cannot be
accepted as it is not clear that on what authority it was done. Law
requires that such an authority must flow from an order passed by
the Magistrate. On a bare perusal of the record, it is apparent that at
no point of time any prayer had been made by the prosecution for
destruction of the said opium or disposal thereof otherwise. The only
course of action the prosecution should have resorted to is for its
disposal is to obtain an order from the competent court of Magistrate
as envisaged under Section 52-A of the Act. It is explicitly made
under the Act that as and when such an application is made, the
Magistrate may, as soon as may be, allow the application (see
also Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3
SCC (Cri) 748).
11. There is no denial of the fact that the prosecution has not filed
any such application for disposal/destruction of the allegedly seized
bulk quantity of contraband material nor was any such order passed
by the Magistrate. Even no notice has been given to the accused
before such alleged destruction/disposal. It is also pertinent here to
mention that the trial court appears to have believed the prosecution
story in a haste and awarded conviction to the respondent without
warranting the production of bulk quantity of contraband. But, the
High Court committed no error in dealing with this aspect of the case
and disbelieving the prosecution story by arriving at the conclusion
that at the trial, the bulk quantities of contraband were not exhibited
to the witnesses at the time of adducing evidence.
12. Turning to the other discrepancies in the prosecution case, PWs 1
and 2 the independent witnesses portrayed by the prosecution have
turned hostile and did not support its case. It is manifest from the
record that they had simply put their signatures on the papers at the
whims of the investigating agency. Another aspect that goes in
favour of the accused is that, the version of prosecution that the
Crl.A. 69/2024 Page 19 of 21
respondent voluntarily made the confessional statement cannot be
believed in the light of admission by Narcotics Officer (PW 5), a key
prosecution witness, that the statement of the respondent-accused
under Section 67 of the Act was recorded while he was in his
custody and the time was not mentioned on the statements. This fact
further gets corroborated with the statement of PW 6 also that the
statement of the accused was recorded after arrest and while in
custody. Thus, it cannot be said that the statement of the accused
confessing the crime was voluntarily made under the provisions of
the Act.” (emphasis supplied)
30. Thereafter, in the case of Yusuf @ Asif v. State, reported in
2023 SCC OnLine SC 1328, Hon‟ble Supreme Court has reiterated the
principle as under:-
“16. In the absence of any material on record to establish that the samples
of the seized contraband were drawn in the presence of the Magistrate and
that the inventory of the seized contraband was duly certified by the
Magistrate, it is apparent that the said seized contraband and the samples
drawn therefrom would not be a valid piece of primary evidence in the trial.
Once there is no primary evidence available, the trial as a whole stands
vitiated.”
31. In the case of Mangilal vs. The State of Madhya Pradesh,
reported in 2023 LiveLaw(SC) 549, Hon‟ble Supreme Court has dealt
with the issue as under:-
“12. We further find that memorandum under Section 27 of the Act, as
witnessed by the two witnesses, P.W.3 and P.W.4 would be of no value in
evidence as there is no discovery of new fact involved. Be that as it may,
these witnesses also turned hostile. The record would also indicate that an
order was passed by the trial Judge permitting the prosecution to keep the
seized materials within the police station, to be produced at a later point of
time. This itself is a sufficient indication that the mandate of Section
52A has not been followed. There is no explanation either for non-
production of the seized materials or the manner in which they are disposed
of. No order passed by the Magistrate allowing the application, if any, filed
under Section 52A of the NDPS Act. P.W.10, Executive Magistrate has
deposed to the fact that he did not pass any order for the disposal of theCrl.A. 69/2024 Page 20 of 21
narcotics substance allegedly seized. Similarly, P.W.12 who is In- charge of
Malkhana also did not remember any such order having been passed.”
32. Under the given facts and circumstances and in absence of
production of the physical samples before this Court during trial and there
being absence of any explanation for non-production, this Court relying on
the decision of Hon‟ble Supreme Court in the case of Noor Aga (supra),
Jarooparam (supra), Yusuf @ Asif (supra) and Mangilal (supra)
inclined to hold that the evidence so adduced by PW-2 is not at all
believable for want of corroboration from independent facts and
circumstances and also for non-production of seized articles as primary
evidence before the Court. This being the position, it cannot be said that
the prosecution side has succeeded in bringing home the charge against
the appellants under Section 22(c) of the NDPS Act beyond all reasonable
doubt. They are entitled to be acquitted on benefit of doubt.
33. In the result, I find sufficient merit in this appeal and accordingly,
the same stands allowed. The impugned judgment and order so passed by
the learned Trial Court stands set aside and quashed. Both the appellants
are acquitted on benefit of doubt.
34. The appellants shall be released from jail hazot, if not warranted in
any other case.
35. Send down the record of the learned trial Court along with a copy of
this Judgment & Order.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
Crl.A. 69/2024 Page 21 of 21