Gauhati High Court
Page No.# 1/26 vs The Union Of India And Anr on 12 June, 2025
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GAHC010173072022
2025:GAU-AS:7728
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./75/2023
IRUNGBAM ANIL MEETEI
S/O IRUNGBAM DEV SINGH.
VILLAGE SUWONGBUNG, PUNGDONGHAM, AWANG LEIKAI, PS
LAMLONG, DIST IMPHAL EAST, MANIPUR
VERSUS
THE UNION OF INDIA AND ANR.
REPRESENTED BY ASST. SGI
3:THE NARCOTIC CONTROL BUREAU
GUWAHATI ZONAL UNIT
GUWAHATI
ASSA
Advocate for the Petitioner : MR. N H BARBHUIYA,
Advocate for the Respondent : ASSTT.S.G.I., MR. S C KEYAL, S.C., NCB
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGEMENT AND ORDER (ORAL)
Date : 12-06-2025
Heard Mr. N. H. Barbhuiya, learned counsel appearing on behalf of the appellant.
2. This is an appeal challenging the Judgment And Order dated 19.07.2018, in connection
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with NDPS Case No. 62 of 2017, whereby and whereunder, the appellant was convicted under
Section 20 (b) (ii) (C) of the NDPS Act and sentenced to undergo Rigorous Imprisonment for
10 (ten) years and to pay fine of Rs. 1,00,000/- (Rupees One Lac Only) with default
stipulation.
3. Also heard learned Standing Counsel Mr S C Keyal, representing the NCB.
4. The genesis of the case was that on 28.01.2017, at about 07:00 am, an information
was received from a reliable source that one oil tanker bearing registration No. MN06-T-0336,
was approaching from Manipur with a consignment of ganja. This tanker was expected to
reach near ISBT Petrol Pump at Guwahati, at around 09:00 am on the same day. This
information was reduced into writing by Sri Lhunkholal and was submitted to the Zonal
Director of NCB. The entire investigating team as constituted, reached the spot at about
09:00 am, and requested two persons, namely, Ishraful Haque and Md Dilabar, to be witness
to seizure of contraband. The investigation team found a tanker parked by the roadside of
Birdaimalu Road near ISBT and saw the appellant on the driver’s seat. After following proper
procedure, the cabin of the tanker was searched and the tanker lids were unlocked in
presence of witnesses and a total of 139 packets wrapped in newspaper, and then covered
with transparent polythene paper were recovered from the space inside the tank of the
tankers.
5. The packets were opened and dried flowering tops of cannabis/ganja were found and
tested by the team. The total weight of the ganja recovered from the tanker was around
1490.08 kilograms. Samples were drawn as per proper procedure and endorsed by the
learned CJM, Kamrup, and forwarded to the Directorate of Forensic Science, Kahilipara (DFS,
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for short). After complying with the required provisions of the NDPS Act, Irungbam Anil
Meetei (hereinafter also referred to as the accused or the appellant) was arrested as a case
under Section 20 (b) (ii) (C) of the NDPS Act, was registered against him.
6. Investigation commenced and the final complaint was lodged against the appellant. At
the commencement of trial, a formal charge under Section 20 (b) (ii) (C) of the NDPS Act was
framed and read over and explained to the appellant, who abjured his guilt and claimed
innocence. To substantiate its stance, the prosecution adduced the evidence of 6 (six)
witnesses and exhibited 28 (twenty-eight) documents. On closure of prosecution evidence,
several questions were asked to the appellant on the circumstances arising against him. The
answers of the appellant, as per Section 313 of the Code of Criminal Procedure, 1973 (‘CrPC‘
for short), transpires a plea of total denial. The appellant did not adduce any evidence in
defence.
7. Learned counsel for the appellant laid stress in his argument that the cross-
examination of PW-3, the key witness, clearly reveals the perfunctory manner in which the
search and seizure was conducted and the appellant was taken into custody.
8. It is submitted by the learned counsel for the appellant that the independent witnesses
who have been referred to by all the witnesses, have not been examined. The evidence of
the witnesses reveal that there are two independent witnesses who were present at the time
of search and seizure but the independent witnesses were not produced by the prosecution at
the time when the evidence was recorded by the Court.
9. The violation of the Article 52 A of the NDPS Act is evident. The cross-examination of
PW-3 clearly reveals that search and seizure was made at the spot, but there is not a whisper
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in the evidence of the seizure witness i.e. PW-3 if after he submitted an application to the
CJM for certification of the sample which were drawn at the spot i.e. the place of occurrence,
the samples were certified by the CJM as samples of the contraband drawn. The record
reveals no certification by the CJM before whom the seized articles were produced along with
the samples drawn at the place of occurrence.
10. In violation of Section 52 of the NDPS Act, the appellant was not produced at the
police station within 24 hours but he was taken to the NCB office instead of being taken to
the police station along with the seized articles and seized tanker. Exhibit-10 is the Godown
receipt report, which reveals that the seized articles were kept in Amingaon Godown on
28.01.2017 at 2.10 hours. Exhibit-7 reveals the exit of the seized articles to be produced
before the CJM on 29.01.2017. Exhibit-12 is the forwarding of the samples drawn for chemical
examination, but where were the articles kept after the articles were produced before the
CJM? The NDPS Act mandates that the articles before being forwarded for forensic
examination has to be kept properly and a proper register has to be maintained. After the
articles were sent for examination by the CJM on 29.01.2017, it is not clear from the evidence
of the witnesses if the articles were kept in safe custody and then forwarded for examination
on 30.01.2017. There appears to be every possibility of manipulation or mishandling of the
articles seized in connection with this case. As there is no clue as to where the articles have
been kept, the appellant deserves a benefit of doubt.
11. The provision of Section 52 A of the NDPS Act was not scrupulously followed due to
the lack of certificate by the CJM relating to the seizure of the articles and the samples
drawn, when the same were produced before the CJM.
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12. Per contra, learned Standing Counsel for the NCB has submitted that the procedure
under Section 42 of the NDPS Act has been complied with. The argument of the learned
counsel for the appellant that Section 42 of the NDPS Act has not been complied with, cannot
be accepted. The deposition of PW-3 substantiated by the evidence of the other witnesses
clearly proves beyond reasonable doubt that Section 42 of the NDPS Act, 1985 has been duly
complied with.
13. PW-3 has categorically stated that on 28.01.2017, on receipt of information at 7 a.m.,
about transportation of contraband through an oil tanker bearing registration No. MN-06-T-
0336, which was detained at Birdaimalu Road near ISBT petrol pump station at about 9 p.m.,
he reduced the information into writing and submitted the same to the Zonal Director, Mr.
Praveen Kumar, who issued a movement order and on receipt of the information, the
Intelligence Officers of the NCB along with other officials like Stenographers, UDC, Drivers,
etc. were grouped into a team to intercept the vehicle and investigate into the matter.
14. Further, the learned Standing Counsel has also submitted that Section 52 A of the NDPS
Act has duly been complied with. The evidence of PW-3 substantiated by the evidence of the
other witnesses clearly reveals that Section 52 A of the NDPS Act has been complied with.
15. It is further submitted that the Hon’ble Supreme Court has laid down guidelines in
Bharat Aambale Vs The State of Chhattisgarh reported in 2025 0 Supreme (SC) 119, relating
to seizure, disposal and destruction of inventory of drugs as per Section 52 A of the NDPS
Act. Relying on the decision of the Hon’ble Supreme Court in Bharat Ambale‘s case (supra), it
is submitted that the judgment and order impugned by the appellant requires no interference.
16. It is further submitted by the learned Standing Counsel that the contraband was seized
on 28.01.2017 and the evidence of the PW-3 substantiated by the evidence of the other
witnesses clearly reveals that the appellant was produced before the learned Chief Judicial
Magistrate for his medical checkup and after his medical checkup at MMCH Hospital, the team
returned to NCB Office and deposited the seized samples and also other seized articles into
the NCB godown at about 8:15 p.m. on 29.01.2017. The original samples were sent after
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endorsement of learned Chief Judicial Magistrate, Kamrup, (M) at Guwahati and forwarded to
the Director, DFS, Kamrup (M) for chemical examination on 30.01.2017 as 29.01.2017 a
Sunday. This refutes the argument of the learned counsel for the appellant that there is no
record of safe custody of samples from 29.01.2017 up to 30.01.2017, when the samples were
forwarded for medical examination.
17. It is further submitted that the argument of the learned counsel for the appellant that
the independent witnesses were not examined by the prosecution, holds no water.
18. Learned Standing Counsel has relied on the decision of the Hon’ble Supreme Court in
the State of Madhya Pradesh Vs. Pradeep Kumar reported in AIR 2018 SC 1345. Placing
reliance on the Pradeep Kumar‘s case (Supra), the learned Standing Counsel has emphasized
through his argument that non-examination of the independent witnesses does not vitiate the
trial.
19. To decide this case in its proper perspective, the evidence is re-appreciated.
20. Sri Phani Narjary, an Intelligence Officer of NCB, Guwahati, deposed as PW-1 that on
28.01.2017, at about 07:00 hours, they received a tip off regarding transportation of
contraband through the tanker bearing registration No. MN-06-T-0336, likely to arrive at
Birdaimalu Road, near ISBT Guwahati. This information was reduced to writing by Sri
Lhunkholal, in presence of the Zonal Director, Praveen Kumar. Thereafter, the investigating
team reached the place of occurrence at about 08:10 hours and requested two individuals
standing nearby, to be the witnesses in their investigation. They then noticed the truck being
parked near Birdaimalu and approached the appellant, sitting inside the cabin. The appellant
identified himself and the team also introduced themselves as Officers of the NCB. Notice was
served upon the appellant and the tanker was searched and so was the appellant, but no
contraband was found in his personal possession. The cabin of the tanker was searched and,
thereafter, in presence of the two independent witnesses, the seal of the tanker was opened,
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and 139 packets wrapped with newspaper and covered by transparent polythene paper were
recovered from the tanker.
21. PW-1 further deposed that these 139 packets were further arranged in four blocks,
each consisting of 1 to 40 items and the last block consisted of 1 to 39 packets. 24 grams
were drawn as sample from each packet. Notice under Section 67 of the NDPS Act, was
served for appearance before the Seizing Officer on the same day. The team moved from the
spot at about 18:10 hours on the same day, and the appellant appeared before the Seizing
Officer and he confessed before the Seizing Officer about trafficking and transporting
contraband. The appellant was arrested at about 21:00 hours on the same day.
22. In his cross-examination, PW-1 has testified that the size of each packet recovered from
the tanker was around 2 x 2.50 ft, approximately, and the radius of the valve of the lid of the
oil tanker was 2 ft, approximately. He further deposed that the weight of the oil tanker was
10 tons, approximately. The owner of the tanker is not known to him.
23. Another officer, Sri Kuldeep Singh Tomar, deposed as PW-2 that on 28.01.2017, he was
posted as Intelligence Officer of the NCB, Guwahati Unit and he too, on a tip-off accompanied
the investigation team to investigate the transportation of huge amount of contraband, as
informed. He further deposed that the Seizing Officer, Sri Lhunkholal called two persons,
standing nearby, to be witnesses during the investigation procedure. The team found a tanker
parked near the road. The cabin of the tanker and the driver was searched, but no
contraband was recovered from the cabin and from the possession of the driver, but 139
packets of cannabis were found in the chamber of the tanker. The cannabis weighed around
1490 kilograms. The entire search and seizure procedure was completed at around 5:30 p.m
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and they left for their office along with the appellant, and reached their office at about 6:00
pm. A notice under Section 67 of the NDPS Act was served upon the appellant and his
confessional statement was recorded.
24. In his cross examination, PW-2 has admitted that he has not produced any documents
to substantiate that he was present at the place of occurrence (‘PO’, for short) on 28.01.2017.
Sri Bom Sankar filed this case against the appellant. When confronted, he could not describe
the size of the cannabis packets and the lid of the oil tanker. The PW-2 has supported the
evidence of PW-1.
25. Another officer Sri Lhunkholal, deposed as PW-3 that, on a tip-off, they went to the
place of occurrence along with the investigating team. But before proceeding to the PO, he
reduced the information into writing and submitted the same to the Zonal Director, Sri
Praveen Kumar. He has proved this information as Exhibit 1 and his signature as exhibit 1 (1),
and he has identified the signature of the Zonal director, Sri Praveen Kumar as Exhibit 1 (2).
He further deposed that he proceeded along with Sri Bam Shankar (PW-5), Sri Ruskin
Talukdar (Intelligence Officer), Sri Kuldeep Tomar (PW-2), Sri Phani Narginary (PW-1), Sri
Swarup Chanda (TA com.), Sri Samiran Das (Stenographer), Sri Chittaranjan Kumar (UDC), Sri
Rajiv Choudhury (UDC), Sri Jugal Das (Driver), Sri S C Jena (driver), Sri Sandeep Kumar
(Sepoy), Sri Vikram Singh (Sepoy), Sri Bhupendrer Singh (Sepoy), Sri Deban Gogoi (Sepoy),
Sri Pabitro Chetia (Sepoy) and Sri Atul Kumar Giri (sepoy). He was authorized to conduct the
search and seizure of the contraband at around 08:10 am/09:00 am at Birdaimalu near ISBT,
along with two independent witnesses, namely, Ishraful Haque and Md Dilabar. They
immediately saw the truck being parked about 500 meters from the main road, and a person
(appellant) sitting inside the tanker. They all introduced themselves and then they
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interrogated the appellant and requested him to cooperate with the search and seizure
procedure. He has proved the office order as Exhibit-2, and he has identified the signature of
the Zonal Director, Sri Praveen Kumar as Exhibit- 2 (1).
26. PW-3 further deposed that he issued notice under Section 50 of the NDPS Act to the
appellant, and verbally informed him about his rights regarding search to be conducted in
presence of a Magistrate or a Gazzetted Officer. He has proved the notice as Exhibit- 3 and
his signature as Exhibit- 3(1) and he has identified the signature of the appellant as Exhibit-
4, on his reply under Section 50 of the NDPS Act.
27. PW-3 further deposed that-
As per provision under section 100 CrPC, the search and seizure was conducted
in presence of two independent witnesses.
One white coloured, Sunsui dual sim mobile
One wallet containing Rs. 630.
One driving license, and
One IOL limited gate pass, were seized from the appellant
28. The search continued and no contraband was found in the cabin, but registration
certificates, national permit and certain other documents were found in the cabin. The lids of
the oil tanker were opened and 139 packets of cannabis wrapped in newspaper, and
thereafter with polythene paper were recovered. On opening the packets, dried flowering
tops, believed to be cannabis/ganja were found. A small quantity was tested with the drug
detection kit. The packets were marked as 1 to 139 and weighed with a portable weighing
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machine brought by the team. Each packet weighed around 10.72 kgs and the total weight
was around 1490.08 kilograms. All the articles including the ignition key of the vehicle and
documents were then seized along with the tanker No. MN-06-T-0336, under Section 43 of
the NDPS Act. The packets were bunched into lots of 40 packets as per standing order 1 of
1989, dated 13/6/1989 issued by the Ministry of Finance, Government of India. Three lots of
40 packets and one lot of 19 packets in total of four lots were arranged and the packets were
marked as G-1 to G -139:
Lot 1 consisted of G-1 to G-40,
Lot 2 contained of G – 41 to G -80,
Lot 3 contained of G-81 to G-120 and
Lot 4 contained of G-121 to G-139.
29. A small quantity of ganja drawn from each packet of Lot No. 1, was taken out and
mixed homogeneously and one sample in duplicate of 24 grams each was drawn and marked
as S-1 and D -1. Thereafter, a small quantity of ganja was taken out from the lot No. 2 and
was mixed homogeneously and one sample in duplicate of 24 grams each was drawn and
marked as S-2 and S-3. The same process was followed and marked as S-3 and D-3, and S-4
and D-4.
The seized ganja were properly wrapped with a markin cloth and sealed with NCB
brass No. 3, labelled properly and also signed by him (PW-3) along with two independent
witnesses, and the appellant.
The Panchnama and test memo was prepared at the spot and signed by the two
independent witnesses and the appellant.
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The seizure list was also prepared on the spot and duly signed by them, including the
appellant. He has proved his signature on the search and seizure list as Exhibit- 5 (1) and 5
(2),
he has proved his signature on the test memo as Exhibit 6 (1), and
his signature on the Panchnama as Exhibit- 7 (1) to 7 (11).
30. PW-3 further deposed that the seizure process was completed at about 5:50 pm
28.01.2017, and a copy was handed over to the appellant. Notice was issued under Section
67 of the NDPS Act, to the appellant, to appear before him, at 6:30 pm, and his voluntary
confessional statement was recorded. He has proved his signature on the notice as Exhibit- 8
(1). He has identified the signature of the appellant of receiving the notice as Exhibit- 8 (2).
Thereafter, the team returned to the office at about. 6:10 pm. All the seized articles were
deposited in the NCB godown with proper receipt on 28.01.2017. The confessional statement
of the appellant was recorded at 9:00 pm, on the same day. On the next day, i.e., on
29.01.2017, the appellant along with the seized articles were produced before the learned
Chief Judicial Magistrate, Kamrup (Metro). Thereafter, the team returned to the NCB office
and deposited the duplicate samples and others seized articles in the NCB godown, at about
08:15 pm, on 29.01.2017.
31. The original samples were sent after endorsement by the CJM, for chemical
examination. He has proved the voluntary confessional statement of the appellant as Exhibit-
9, but this was exhibited under objection. He has proved –
Exhibit-10 as the godown deposit receipt No. 1
Exhibit 11 as the godown receipt No. 2, and
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Exhibit 12 as the copy of forwarding the samples to the DFS,
Exhibit 13 as the receipt issued by DFS.
32. PW-3 has further deposed that, along with the remand petition, a petition for pretrial
disposal under Section 52 (A) of the NDPS Act was submitted along with the inventory and a
petition for safe custody of the oil tanker, was also submitted to the CJM. He has proved his
signature under objection as Exhibit- 16 (1) on the application to the learned CJM, Kamrup,
dated 29.01.2017. He has proved Exhibit- 17 (1) as his signature under section 57 of the
NDPS Act in connection with this case, relating to compliance under the Section 57, the
signature of his immediate superior, Sri Dilip Robidas, Superintendent, NCB, Guwahati as
Exhibit-17(2).
33. PW-3 further deposed that he has seen all the samples, seized articles, packets and
samples in the Court. He has identified the appellant, present in the Court. He has identified
Material Exhibits – 1 to 139, as seized packets, containing cannabis wrapped in markin cloth.
He has identified the signatures of the two independent witnesses and the appellant. He has
identified Material Exhibit 140 to 143, as two yellow coloured envelopes produced in the
Court in sealed condition, containing 24 grams of samples of dry flowering tops in each
packet. He has identified Material Exhibit-144, as the envelope containing Rs. 630/-, seized in
connection with this case and other seized articles. He has also identified Material Exhibit-147
and Material Exhibit-148, as a yellow coloured envelope, containing remnants of the dispatch
from DFS, Kahilipara, and other articles seized in connection with this case. 34. The cross-
examination of PW-3 will be discussed at the appropriate stage. But, at this stage it is
pertinent to mention that the oral evidence of PW-3 substantiated by the documentary
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evidence reveals compliance of Section 42, 52, 52A, 57 etc. of the NDPS Act.
35. Another Intelligence Officer of NCB Sri Bam Shankar deposed as PW-5 that on
28.01.2017, he received an office order from the Zonal Director, Praveen Kumar in connection
with seizure of 1490.08 kgs of Ganja at Birdaimalu Road, near ISBT petrol pump, Guwahati.
On receipt of the order, the NCB team along with the authorized Seizing Officer Sri Lhunkholal
moved to the relevant places for search and seizure. At about 9 O’ clock, the team reached
the place and Sri Lhunkholal, contacted two independent witnesses and started the procedure
of seizure of the contraband from the tanker. 139 packets were recovered and a drug
detection kit was used to test the contraband. The packets were seized as per standing order
and the search-cum-seizure list and panchnama were prepared at the spot by the Seizing
Officer.
36. PW-5 further deposed that notice under Section 67 was issued on the spot. All the
seized articles, contraband along with the accused were brought to the office and the
contraband was deposited in the Godown and the oil tanker was deposited in Amingaon
Warehouse. On 06.02.2024, he was appointed as Investigating Officer as per office order.
Meanwhile, the appellant was already arrested. He has proved the office order as Exhibit-21
and he has identified the signature of Praveen Kumar as Exhbiit-21(1).
37. PW-5 further deposed that he received the chemical examination report, which
disclosed that the contraband on being tested was found to be cannabis. This chemical
examination report was served to the appellant at Central Jail, Guwahati. He has proved his
signature on the forwarding letter of the chemical examination report as Exhibit-22(1). He has
identified the signature of the appellant on the forwarding report as Exhibit-23(2).
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38. PW-5 further deposed that he made a prayer before the learned Sessions Judge for
recording the statement of the appellant in the Central Jail and he has identified this prayer
petition as Exhibit-24 and Exhibit-24(1) to 24(4) as his signatures with office seal. PW-5 has
identified the statement of the appellant as Exhibit-25 and the appellant’s signature on his
statement as Exhibit-25(2).
39. PW-5 further deposed that a prayer was made for disposal of the contraband as per
Section 52 A of the NDPS Act and he has proved his signature on the forwarding letter as
Exhibit-26(1). He has proved his signature on the inventory as Exhibit-27(1).
40. Finally, he filed a complaint under Section 36 A of the NDPS Act against the appellant in
connection of recovery of 1490.08 kgs of Ganja on 28.01.2017. He has proved his signatures
on the complaint as Exhibit-28(1) upto 28(11).
41. The cross-examination of this witness also will be discussed at the appropriate stage.
However, it is apt to mention at this juncture that the evidence of PW-1, PW-2, PW-3 and PW-
4 depicts that proper procedure was followed by the NCB team in search, seizure and
sampling of the contraband upto the process of preparing the inventory. No discrepancy is
evident.
42. The Deputy Director (Operations), NCB, Sri Praveen Kumar deposed as PW-6 that Sri
Lhunkholal informed him in writing about transaction of huge consignment of Ganja in an oil
tanker, which will be reaching at Birdaimalu Road, ISBT near petrol pump. He then
constituted a team to interdict the consignment. The team consisted of Shri Lhunkholal, IO,
Shri Aram Anth, IO, Shri Bam Shanker, IO, Sri Kuldeep Tomar, IO, Sri Ruskin Talukdar, IO, Sri
Phani Narjinary, IO, Sri Swarup Chanda, Shri Samiran Das, Shri Chittranjan Kumar, Shri Rajiv
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Choudhury, Shri Jugal Ch. Das, Shri S.C. Jena, Shri Sandeep Kumar, Shri Bhupendra Singh
Yadav, Shri Deben Gogoi, Shri Pabitra Chetia and Shri Vikram Singh. This team which also
consisted of driver, UDC and Stenographer proceeded towards the petrol pump near ISBT at
Birdaimalu Road after issuance of an office order for seizing the consignment, in case of any
recovery. He has proved his signature on the order as Exhibit-2(1). The team left for the said
area and he was later informed about the arrest of one person and seizure of Ganja. His
cross-examination is not noteworthy.
43. The Joint Director of Directorate of Forensic Science Laboratory, Sri Gajendra Nath Deka
deposed as PW-4 that on 30.01.2017 while working as Deputy Director in the Drugs and
Narcotics Division of Directorate of Forensic Science, he received a postal parcel through the
Director, DFS, Assam in connection with NCB Case No. 04/2017. The parcel consisted of four
exhibits enclosed in a sealed envelope. The facsimile was found to be Narcotics Control
Bureau*03.
The description of the articles are as follows :-
Four sealed envelopes, marked as “S-1, S-2, S-3 and A-4” with closed polythene
packets containing 24 gms dry plant materials each. These samples were marked as DN-
29/2017 (a) to DN-29/2017 (d) respectively.
The result of the examination are as follows :-
Exhibit DN-29/2017 (a) to DN-29/2017 (d) tested positive for cannabis (ganja) and this
report was forwarded to the Intelligence Officer, NCB, Guwahati Zonal Unit. He has proved his
signature on the report as Exhibit 19(1). He has identified the signature of Mr. K.C. Sarmah
on the forwarding report as Exhibit-20(1). He has marked the envelop sent back to NCB as M.
Page No.# 16/26Ext. 147 of Case No. 4/2017 in connection with preparation of report vide
DFS.1199/2017/138/DN-29/2017. He has marked the sealed remnants of the samples as M.
Ext. 148 and his signature as M. Ext. 148 (1).
44. In his cross-examination, he has stated that he had personally examined the samples.
Although he had intimated the Intelligence Officer about the conclusion of findings, he has
not named the Intelligence Officer on Ext. 19. He has not weighed the samples S-1, S-2, S-3
and S-4 after chemical examination.
45. The remaining part of the cross examination of this witness will be discussed at the
appropriate stage.
46. I have considered the submissions at the bar with circumspection.
47. The evidence of PW-3 substantiated by the evidence of PW-1, PW-2 and PW-6, clearly
depicts that Section 42 of the NDPS Act has been complied with to the core. Their evidence
reveals that on receipt of the secret information, the information was reduced to writing by
PW-3 and submitted to the Zonal Director, Sri Praveen Kumar, PW-6 and then, PW-6
constituted a team comprising of PW-1, PW-2, PW-3 and other officials of the NCB including
Intelligence Officers, TA, UDC, Stenographer, Driver and Sepoy etc. The evidence of PW-1,
PW-2, PW-3 and PW-5 clearly reveals that the Investigation Team immediately went to the
place of occurrence where the vehicle was parked at Birdaimalu Road, near ISBT petrol pump
station at about 9 PM on 28.01.2017. Thereafter, the team conducted search and seizure.
PW-3 is the Officer, who conducted the search and seizure.
48. It is submitted by the learned counsel for the appellant that the inventory was not
properly prepared as mandated under Section 52 A of the NDPS Act and the certification of
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the learned CJM was not obtained.
49. On the contrary, learned Standing Counsel for the NCB has drawn the attention to the
evidence of PW-3 which clearly reflects that inventory was prepared, but photographs of the
seized articles and the samples drawn were not taken. However, the seized articles were
produced before the learned CJM on the following day i.e. on 29.01.2017 and the articles
were seen and endorsed by the learned CJM.
50. I have also scrutinized the evidence and the Trial Court Record, which reveals that the
seized articles were taken from the Godown and produced before the learned CJM on the
following day and the articles were seen and endorsed by the learned CJM. Exhibit-10 and 11
are the Godown receipts and PW-3 has identified the signature of the Godown In-Charge as
Exhibit-10(1) and his signature dated 29.01.2017 as Exhibit-11(1).
51. Learned counsel for the appellant has relied on the decision of the Hon’ble Supreme
Court in Union of India Vs. Mohanlal reported in [2016] 1 S.C.R. 651 wherein it has been
observed that :-
“13. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same
has to be forwarded either to the officer in-charge of the nearest police station or to the officer
empowered under Section 53 who shall prepare an inventory as stipulated in the said provision
and make an application to the Magistrate for purposes of (a) certifying the correctness of the
inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as
true and (c) to draw representative samples in the presence of the Magistrate and certifying the
correctness of the list of samples so drawn. Sub-section (3) of Section 52- A requires that the
Magistrate shall as soon as may be allow the application. This implies that no sooner the
seizure is effected and the contraband forwarded to the officer in charge of the Police Station or
the officer empowered, the officer concerned is in law duty bound to approach the Magistrate
for the purposes mentioned above including grant of permission to draw representative samples
in his presence, which samples will then be enlisted and the correctness of the list of samples so
drawn certified by the Magistrate. In other words, the process of drawing of samples has to be
in the presence and under the supervision of the Magistrate and the entire exercise has to be
certified by him to be correct. The question of drawing of samples at the time of seizure which,
more often than not, takes place in the absence of the Magistrate does not in the above scheme
of things arise. This is so especially when according to Section 52-A(4) of the Act, samples
Page No.# 18/26drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-
A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no
provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why
none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict
between the statutory provision governing taking of samples and the standing order issued by
the Central Government is evident when the two are placed in juxtaposition. There is no
gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles
of interpretation but the continuance of the statutory notification in its present form is bound to
create confusion in the minds of the authorities concerned instead of helping them in the
discharge of their duties. The Central Government would, therefore, do well, to re-examine the
matter and take suitable steps in the above direction.
14. Mr. Sinha, learned Amicus, argues that if an amendment of the Act stipulating that the
samples be taken at the time of seizure is not possible, the least that ought to be done is to make
it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of
samples and certification etc. without any loss of time. The officer conducting the seizure is also
obliged to report the act of seizure and the making of the application to the superior officer in
writing so that there is a certain amount of accountability in the entire exercise, which as at
present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that
the seizure of the contraband must be followed by an application for drawing of samples and
certification as contemplated under the Act. There is equally no doubt that the process of
making any such application and resultant sampling and certification cannot be left to the
whims of the officers concerned. The scheme of the Act in general and Section 52-A in
particular, does not brook any delay in the matter of making of an application or the drawing of
samples and certification. While we see no room for prescribing or reading a time frame into
the provision, we are of the view that an application for sampling and certification ought to be
made without undue delay and the Magistrate on receipt of any such application will be
expected to attend to the application and do the needful, within a reasonable period and
without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A
(supra). We hope and trust that the High Courts will keep a close watch on the performance of
the Magistrates in this regard and through the Magistrates on the agencies that are dealing
with the menace of drugs which has taken alarming dimensions in this country partly because
of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier
manner in which the agencies and at times Magistracy in this country addresses a problem of
such serious dimensions.”
52. The petitioner has also relied on the decision of the Hon’ble Supreme Court in
Mohammed Khalid and Another v. The State of Telangana reported in [2024] 3 S.C.R. 23
wherein it has been observed that :-
“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the
Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the
jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but
Page No.# 19/26a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at
the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession,
sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that
the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution
which too is not substantiated by any admissible or tangible evidence is that these two accused
had conspired sale/purchase of ganja with A-1 and A-2. The entire case of the prosecution as
against these two accused is based on the interrogation notes of A-1 and A-2.”
53. On the contrary, learned Standing Counsel for the NCB, Mr. S.C. Keyal has relied on the
decision of the Hon’ble Supreme Court in Bharat Aambale Versus The State Of Chhattisgarh
reported in 2025 0 Supreme (SC) 119 wherein it has been held that :-
“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 narcotics
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 sub-
section (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) /
Page No.# 20/26
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 from 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.”
54. I find force in the argument of the learned counsel for the NCB. It is true that in this
instant case PW-3 i.e. Seizing Officer has admitted that the photographs were not taken but
mere non-compliance of the procedure under Section 52 A 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. In this case, the photographs were not taken, but
the physical evidence was not disputed. The seized articles were produced in the Court along
with the samples and were identified by PW-3.
55. In the instant case, the physical evidence of the seized articles have been proved. The
Page No.# 21/26
evidence of PW-3 depicts that he has proved and identified M. Ext. 1 to 139, which were
sealed packets containing cannabis wrapped with markin cloth. He has proved M. Ext. 140 to
143 in sealed packets containing 24 gms samples of dry flowering tops in each packet which
were recovered and seized in connection with this case. He has also proved the other Material
Exhibits including remnants of the samples vide M. Ext. 148 and other Material Exhibits, such
as Rs.630/-, black coloured wallet, ignition key and other materials seized in connection with
this case. He has proved the inventory prepared under Section 52 A of the NDPS Act as
Exhibit – 15 and this was proved under objection by the defence i.e. by the appellant and he
(PW-3) has proved his signature on the inventory as Exhibit -15(1).
56. Thus, in the light of the decision of the Hon’ble Supreme Court in the decision of Bharat
Aambale (supra), it is thereby held that the failure of the Investigating Officer to take
photographs of the contraband and the seizure, does not vitiate the trial as there is sufficient
evidence which has not controverted the fact that the appellant was carrying flowering tops
of cannabis/Ganja hidden inside the container of the tanker.
57. The evidence of the witnesses PW-1, PW-2, PW-3 and PW-5 that the tanker was found
parked near Birdaimalu Road by the Investigating Team and 139 packets containing cannabis
was recovered from the container of the tanker bearing registration No. MN-06-T-0336, has
remained un-contradicted.
58. The evidence that the appellant was the driver of the tanker was also not contradicted.
Through the vigorous cross-examination of the Seizing Officer as well as the IO, no
contradiction could be elicited as per Section 145 of the Indian Evidence Act, 1872 (Evidence
Act for short) qua Section 162 of CrPC.
Page No.# 22/26
59. Learned counsel for the appellant has relied on the decision of this Court in Md. Manirul
Jaman @ Moni-Versus- The State of Assam wherein vide order dated 09.09.2024, this Court
has held that :
“52. There also appears to be force in the submissions of learned counsel for the appellant that
chain of custody was not maintained while sending the samples after its drawal from the
contraband till it reached the Forensic Laboratory for its examination. It appears that though
the PW-6 has deposed that the contraband was kept in Police Station Malkhana, however,
apart from oral testimony nothing was produced to substantiate this evidence. No malkhana
register was produced to show that the samples which were drawn from the contraband were
kept in malkhana before it could be sent to the Forensic Laboratory for its examination.”
60. Per contra, learned Standing Counsel for the NCB has relied on the decision of the
Hon’ble Supreme Court in Mohinder versus State of Haryana reported in 2013 2 Crimes (SC)
206 wherein it has been held that :-
“(9) Regarding the delay in sending the contraband for examination by the FSL, it was PW-2,
who carried the samples from the Police Station to FSL at Madhuban but he was not asked any
question in the cross examination, though opportunity was given to the defence. Even
otherwise, FSL report Ex. P1 would show that the sample was received at the FSL in tact with
the seal which tallied with the specimen seals forwarded. Accordingly, the said objection is
liable to the rejected.”
61. It is further submitted by the learned Standing Counsel for the NCB Mr. S.C. Keyal that
the evidence of PW-4 in conjunction with the evidence of PW-3, clearly depicts that the
articles as sealed and forwarded from the Godown to the DFS were found with the seal intact.
Page No.# 23/26
62. Moreover, the evidence of PW-3 reveals that the articles were kept in the Godown after
seizure and sampling on 28.01.2017, and thereafter, on the next date the articles were
produced before the learned CJM i.e. on 29.01.2017 for verification and deposited in the
Godown. This has been categorically stated by PW-3. This is the answer to the query of the
learned counsel for the appellant that whether the safe custody of the articles were proved
after 29.01.2017 to 30.01.2017 when the articles were sent to Guwahati for chemical
examination. PW-3 has categorically stated that the articles were kept in the Godwon after
being produced before the CJM. Exhibit – 10 and 11 are the Godown receipts.
63. It has been explained by the PW-3 that as 29.01.2017 was a Sunday, the storage of the
samples and the contraband were not recorded and thus, the argument of the learned
counsel for the appellant, questioning the safe custody of the articles in the Godown, can be
safely brushed aside.
64. Learned counsel for the appellant has also laid stress in his argument that two
independent witnesses who have been referred to by all the official witnesses have not been
examined.
65. To refute this, learned Standing Counsel for the NCB has relied on the decision of the
Hon’ble Supreme Court in Kulwinder Singh & Anr. Versus State of Punjab reported in (2015) 6
SCC 674 wherein it has been observed that :-
“18. The next contention that has been raised by the learned counsel for the appellants
relates to non-compliance of Section 50 of the NDPS Act. It is undisputed that the bags
containing poppy husk were seized from the truck. Thus, it is not a case of personal search of
a person. In Megh Singh v. State of Punjab (2003) 8 SCC 666 it has been held that Section 50
only applies in case of personal search of a person, but it is not extended to a search of a
vehicle or a container or a bag or premises.”
Page No.# 24/26
**** **** ****
“21. The last plank of submission of the learned counsel for the appellants is that no
independent witness has been examined to substantiate the allegation of the prosecution. It
is worth to note that Labh Singh and Harvinder Singh have not been examined by the
prosecution. The explanation has been offered that the investigating agency was of the view
that they had been won over. The said explanation has been totally substantiated inasmuch
as they have been examined as defence witnesses. In such a situation, no adverse inference
can be drawn for non-examination of the said witnesses. That apart, the case of the
prosecution cannot be rejected solely on the ground that independent witnesses have not
been examined when, on the perusal of the evidence on record the Court finds (2011) 3 SCC
521 (2014) 14 SCC 235 that the case put forth by the prosecution is trustworthy. When the
evidence of the official witnesses are trustworthy and credible, there is no reason not to rest
the conviction on the basis of their evidence. In this regard, it is profitable to reproduce a
passage from State (Govt. of NCT of Delhi) v. Sunil which reads as follows:-
“We feel that it is an archaic notion that actions of the police officer should be
approached with initial distrust. We are aware that such a notion was lavishly
entertained during the British period and policemen also knew about it. Its hangover
persisted during post-independent years but it is time now to start placing at least
initial trust on the actions and the documents made by the police. At any rate, the
court cannot start with the presumption that the police records are untrustworthy. As
a proposition of law the presumption should be the other way around. That official
acts of the police have been regularly performed is a wise principle of presumption
and recognised even by the legislature. Hence when a police officer gives evidence in
court that a certain article was recovered by him on the strength of the statement
made by the accused it is open to the court to believe the version to be correct if it is
not otherwise shown to be unreliable. It is for the accused, through cross-examination
of witnesses or through any other materials, to show that the evidence of the police
officer is either unreliable or at least unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the truthfulness of such records of the police
the court could certainly take into account the fact (2001) 1 SCC 652 that no other
independent person was present at the time of recovery. But it is not a legally
approvable procedure to presume the police action as unreliable to start with, nor to
jettison such action merely for the reason that police did not collect signatures of
independent persons in the documents made contemporaneous with such actions.”
66. Reverting back to this case, it is held in this case too the contraband was recovered
from a container in a tank and so personal search of the officer was not necessary and the
Page No.# 25/26
failure of the prosecution to examine two independent witnesses does not cause dent in the
overwhelming evidence adduced by the prosecution.
67. It has been correctly held by the learned Trial Court that although the prosecution side
has failed to examine any independent witnesses, the official witnesses have clearly
corroborated each other and the defence has failed to prove non-compliance of any Section
of the NDPS Act. There is no legal proposition that evidence of official witness unless
supported by independent witness is unworthy of acceptance. The evidence could not be
discarded merely on the ground that as the witnesses are employees of NCB, they cannot be
labelled as interested witnesses and it is not a proper judicial approach to distrust and
suspect them. It has been correctly held that as the contraband was recovered from the
compartment of a tanker, the search and recovery of the contraband does not come within
the ambit of Section 50 of the NDPS Act. However, in this case personal search was also
conducted.
68. The learned Trial Court has observed that the contention that the appellant has been
roped in, in connection with a false case with ulterior motive has not been affirmed by the
defence nor even through cross-examination of PW-3. It has been held by the learned Trial
Court that the search and seizure was conducted as per proper procedure without violating
any provisions of law. It has also been held by the learned Trial Court that Section 42 of the
NDPS Act has been complied with.
69. In view of the foregoing discussions, it is thereby held that the learned Trial Court has
recorded sound reasonings while deciding this case. I record my concurrence to the decision
of the learned Trial Court. The clinching evidence against the appellant proves this case
Page No.# 26/26
beyond a reasonable doubt.
70. Appeal is dismissed as the appeal is devoid of merits.
71. Send back the Trial Court Records.
JUDGE
Comparing Assistant