Crl.A./28/2026 on 6 August, 2026

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    Gauhati High Court

    Crl.A./28/2026 on 6 August, 2026

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    GAHC010013242026
    
    
    
    
                                                                                2026:GAU-AS:10986
    
    
                                   In the Gauhati High Court
              (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
    
    
                                CRL. APPEAL NO. 28 OF 2026
                                   Ali Hussain,
                                   Aged about 27 years,
                                   Son of Mohibur Rahman,
                                   Resident of vill-Soidpur Bataiya, P.O.-Mullaganj Bazar
                                   P.S.- Patharkandi, Dist.-Karimganj, Assam.
    
                                                                  ........Petitioner/Appellant
    
    
                                     -Versus-
    
                                   1. The State of Assam,
                                      Represented by the learned Public Prosecutor.
    
    
                                                                                ........Respondent

    -B E F O R E –

    HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA

    SPONSORED

    Advocate for the petitioner/appellant : Mr. N. J. Dutta, learned counsel.
    Advocate for the respondents : Mr. K. K. Parashar, learned Additional public Prosecutor.

    Date on which Judgment is reserved : 21.07.2026
    Date of Hearing                       :    21.07.2026
                                                                                 Page No.# 2/23
    
    Date of Judgment and Order         :   06.08.2026
    

    Whether the pronouncement is of the Operative part of the Judgment? : No.
    Whether the full Judgment has been pronounced? : Yes.

    JUDGMENT & ORDER
    (CAV)

    Heard Mr. N. J. Dutta, learned counsel for the appellant. Also heard Mr. K.
    K. Parashar, learned Additional Public Prosecutor appearing for the State of
    Assam.

    2. This is an appeal under Section 415 (2) of the Bharatiya Nagarik
    Suraksha Sanhita, 2023 against the impugned Judgment and Order of conviction
    dated 19.12.2025 passed by the learned Special Judge, NDPS Act, Cachar,
    Silchar in NDPS Case No. 24 of 2025, arising out of Katigorah Police Station
    Case No. 02 of 2025, wherein the appellant was sentenced to undergo
    Rigorous Imprisonment for 10 (ten) years for commission of offence punishable
    under Section 21 (C) of NDPS Act and to pay fine of Rs.1,00,000/- (Rupees one
    lakh) only in default to undergo further simple imprisonment for 6 (six) months.

    3. The brief facts of the case is that the complainant, the O/C of Katigorah
    PS, Inspector Joseph V. Keivom lodged an “ejahar” in the Katigorah PS stating
    that on 09.01.2025 at about 8-30 p.m. an information was received from S.P.
    Cachar that some drug peddlers were coming from Salchapra side towards
    Katigorah on N.H. 06. The said information was received by the S.P. Cachar
    from the BSF intelligence, FGT, Silchar and at the same time the S.P. Cachar also
    sent Intelligence team of BSF, FGT, Silchar for conducting joint Operation to
    intercept the miscreants and also to recover the narcotics. The complainant
    Page No.# 3/23

    along with WSI Sumita Gogoi, PS staff and BSF troops proceeded and reached
    at NH 06 near the waiting shed and laid ambush there and managed to
    apprehend Ali Hussain i.e. the accused. On search, they found 34 Nos. of soap
    cases containing suspected brown sugar weighing approx 342 grams from the
    possession of the apprehended accused and accordingly seizure was made.
    After observing all the formalities the complainant and his team returned to PS
    and handed over the seized drugs to the Sheristadar of the Malkhana of the PS.
    On the basis of FIR Katigorah PS Case No. 02 of 2025 was registered under
    Section 21 (C) NDPS Act.

    4. After completion of investigation, the investigating officer submitted
    charge-sheet against the accused person, Ali Hussain under Section 21 (C)
    NDPS Act. On production of the accused, charge was framed against the
    accused person Ali Hussain under Section 21 (C) of NDPS Act. Charge was read
    over and explained to the accused person to which he pleaded not guilty and
    claimed to be tried.

    5. Now, the testimonies of prosecution witnesses are referred below in
    concise manner.

    6. P.W.1, Sri Kaushik Das, deposed in his evidence that he does not know the
    accused person who was virtually present in the court. He further deposed that
    about 2/3 months earlier one day while he was passing through Katigorah
    Chourangi area he saw gathering of police personnel and other local people. He
    also saw a person was nabbed by police with motorcycle and a bag was lying
    near the motorcycle. Police personnel took out some tablets from the said bag
    and counted the same in his presence. The recovered tablets were packed and
    sealed by police at the place of occurrence. Police prepared a paper and took his
    signature on the said paper. Exhibit P-1 is the said paper (seizure list) wherein
    Page No.# 4/23

    Exhibit P-1(1) is his signature. Police also took his signature over the sealed
    packet. Police noted down the name of P.W.1, and address etc and recorded his
    statement.

    In his cross-examination, P.W.1 stated that he signed only on one paper.
    The paper on which his signature was taken does not contain the detailed
    description of the seized items. No other document was shown to P.W.1.

    7. P.W.2, Inspector Joseph V. Keivom, deposed in his evidence that on
    09.01.2025 while he was posted at Katigorah PS as Officer-in-charge he lodged
    one “ejahar” and registered the same vide Katigorah PS Case No. 02 of 2025
    dtd.10.01.2025 under section 21(c) of NDPS Act and entrusted WSI (P) Sumita
    Gogoi to investigate the case. Exhibit P-2 is the “ejahar” wherein Exhibit P-2(1)
    & 2(2) are the signatures of P.W.2. He further deposed that on that day a secret
    information was received through SP, Cachar as well as BSF, Intelligence, Cachar
    regarding paddling of narcotic substances and the SP, Cachar informed him that
    drug peddler was coming from Salchapra side towards Katigorah. The BSF
    personnel on receipt of the information proceeded towards Katigorah. On
    receipt of information, P.W.2 made a GDE vide No.19 dated 09.01.2025 and
    thereafter he along with WSI (P) Sumita Gogoi and other battalion staff
    preceded towards Katigorah Tiniali (tri-junction) National High Way No. 06. In-
    the-mean-time, BSF personnel from Harinagar camp also arrived at the place of
    occurrence at around 8-30 p.m. They laid ambush there and as soon as
    suspected drug peddler arrived at the place of occurrence by riding a motorcycle
    they intercepted him. The accused person who was virtually present in the court
    is the same person whom they had intercepted. Then the SP, Cachar, also came
    to the place o occurrence and he authorized WSI (P) Sumita Gogoi to conduct
    search and seizure. Then search was conducted by the seizing officer in
    Page No.# 5/23

    presence of independent witnesses and during search 34 Nos. of soap cases
    containing suspected brown sugar were recovered from a bag which the
    accused person was carrying with him. Thereafter, said contraband were
    weighed and the total weight was approximately 348 gms. (without soap cases).
    Then the seizing officer seized those contraband substances in presence of
    independent witnesses and was again sealed in presence of witnesses. P.W.2
    further deposed that the signatures of the witnesses were obtained over the
    sealed packet. After completion of all the formalities they returned to Katigorah
    PS along with the apprehended accused and the seized items. After reaching
    the PS, the seizing officer, handed over the seized items to Malkhana of
    Katigorah PS. Thereafter P.W.2 lodged the FIR.

    P.W.2 deposed in his cross-examination that the search operation was
    conducted after sunset and before sunrise. He did not record the reason in
    writing as to why the search was conducted at night and what was the
    necessity/urgency of conducting the search at night. P.W.2 could not say how
    many BSF personnel were there at the place of occurrence and he also does not
    remember their names. P.W.2 did not give the detailed description of the soap
    cases in the FIR.

    P.W.2 denied the suggestion of the defence that he did not state before
    the IO that the FIR was lodged by him on 09.01.2025, that after receipt of the
    information the BSF personnel also preceeded towards Katigorah, that the BSF
    personnel from Harinagar camp also arrived at the pace of occurrence at around
    8-30 p.m., that the accused person came in a motorcycle and P.W.2 intercepted
    him, that total weight of recovered contraband substance was approximately
    348 grams, that P.W.2 authorized WSI (P) Sumita Gogoi to conduct search and
    seizure and that the contraband substances were recovered from a bag which
    Page No.# 6/23

    was carried by the accused person.

    P.W.2 further stated that he does not remember the impression of the seal
    which was used for sealing the packet. P.W.2 admitted that Exhibit P-2 (FIR) is
    dated 10.01.2025 and not 09.01.2025.

    8. P.W.3, Sri Rabindra Sinha, deposed in his evidence that he knows the
    accused person who was virtually present in the court. He further deposed that
    on 09.01.2025 at about 8-30 p.m. while he was posted at Katigorah PS the O/C
    of Katigorah PS asked him to go to near Gammon bridge. Accordingly, P.W.3
    went there and saw the accused person who was virtually present in the court.
    After reaching of P.W.3 the S.P. Cachar and additional S.P. Cachar arrived there
    and in their presence the accused person who was carrying a bag in his
    motorcycle was searched and from inside the said bag 36 numbers of soap
    cases containing brown colour powdery substances were recovered. Thereafter,
    the seizing officer seized those NDPS items in his presence as well as in
    presence of independent witnesses. Then they returned to Katigorah PS along
    with the apprehended accused and seized the contraband items.

    In his cross-examination, P.W.3 stated that his statement was written
    down by the O/C of Katigorah PS, Inspector Joseph V. Khaubom in a piece of
    paper on his own handwriting.

    9. P.W.4, M.S. Oraon, identified the accused who was virtually present in the
    court and deposed in his evidence that accused person who was riding a
    motorcycle was apprehended in a joint operation by police and BSF personnel
    and from his possession 34 nos. of soap cases containing suspected drugs were
    recovered. The seized articles were weighed at the place of occurrence and the
    seizing officer prepared a seizure list. In the said seizure list P.W.4 had put his
    Page No.# 7/23

    signature. Exhibit P-1(2) is the signature of P.W.4. He further deposed that after
    the completion of search and seizure police took the accused person along with
    the seized articles to police station and thereafter they left for their other duties.

    P.W.4 stated in his cross-examination that whenever they go for any joint
    operation the details of their departure is noted down in their office register. At
    the relevant time P.W.4 was posted at Harinagar BSF camp. Exhibit P-1 consists
    of two pages and his signature was taken only in the 2nd page. The operation
    was launched on 09.01.2025. The total weight of the seized narcotics was 342
    grams. P.W.4 did not specifically remember the colour, detailed description and
    the individual weight of each soap case containing narcotic/drugs.

    10. P.W.5, Asfaqur Rahman, the Scientific Officer, deposed in his evidence that
    on 13.01.2025 while he was working as Scientific Officer, Drugs and Narcotic
    Division, RFSL, Silchar he received a parcel consisting of one Exhibit from the
    Joint Director-cum-Chemical Examiner, RFSL, Silchar vide Memo No.G/SR/80
    dtd.10.01.2025 for examination in connection with Katigorah PS Case No. 02 of
    2025 under section 21(C) of NDPS Act. Upon careful examination of Exhibit,
    basing on colour tests, Thin Layer Chromatography (TLC) and High Performance
    Liquid Chromatography (HPLC) techniques, presence of Heroin was confirmed in
    Exhibit SN-16/2025. Exhibit P-3 is the report of P.W.5 wherein Exhibit P-3(1) is
    his signature.

    In his cross-examination P.W.5 stated that in their office they have a
    cupboard and he kept the parcel in the said cupboard separately, and that he
    has not submitted the worksheet along with his report.

    11. P.W.6, Biswajit Dey, deposed in his evidence that on 09.01.2025 while he
    was posted at Katigorah PS on that day at about 8 p.m. a ‘Naka’ checking was
    Page No.# 8/23

    set up and during checking one person with a motorcycle was detained with
    drugs and the officers who were present there seized those drugs. P.W.6 was
    deputed for maintaining traffic on the road at that time. P.W.6 was could not
    recognize the accused person who was virtually present in the court.

    In his cross-examination P.W.6 stated that the place of occurrence is a
    market area. As P.W.6 was busy in controlling the traffic he did not see the
    occurrence but he heard about it.

    12. P.W.7, Sri Uttam Kumar Sinha deposed in his evidence that on 09.01.2025
    when he was posted at Katigorah PS as Sheristadar of Malkhana on that day
    WSI (P) Sunita Gogoi handed over a packet having 34 numbers of soap cases
    containing suspected brown sugar, one mobile handset and one motorcycle to
    him for keeping those in Malkhana. P.W.7 received by police in presence of
    P.W.8. Thereafter police prepared a seizure list and seized those contraband
    substances. Police obtained signature of P.W.8 on the sealed packet and on the
    seizure list. Exhibit P-1(3) is the signature of P.W.8. The signatures of the
    accused person were also obtained on the sealed packet.

    In his cross-examination, P.W.8 stated that he was not present at the time
    of interception of motorcycle. However, seeing the crowd he stopped there.
    P.W.8 did not see any computer, printer at the place of occurrence.

    13. P.W.9, David Hmar, deposed in his evidence that at the relevant time of
    incident he was posted at Katigorah PS and he identified the accused, who was
    virtually present. P.W.9 further deposed that he saw the accused at Katigorah
    PS. On the date of incident, he accompanied the O/C of Katigorah PS for a
    search operation. Thereafter, during ‘Naka’ checking some drugs were recovered
    from the possession of the accused which the accused was carrying in his
    Page No.# 9/23

    motor-cycle. Seeing the police team, one of the accused fled away from the
    place of occurrence, but other was apprehended by them. P.W.9 did not notice
    the appearance of the apprehended person.

    P.W.9 in his cross-examination denied the suggestion of the defence that
    he did not state before the IO that during ‘Naka’ checking some drugs were
    recovered from the possession of the accused person.

    14. P.W.10, the IO, Sumita Gogoi, identified the accused who was virtually
    present and deposed in her evidence that 09.01.2025 while she was posted at
    Katigorah PS the O/C of the PS Inspector Joseph V. Keivom received an
    information from S.P. Cachar that some drug peddlers were coming via
    Katigorah and thereafter the O/C asked P.W.10 to proceed to the place of
    occurrence i.e. Katigorah Tiniali (tri-junction). Accordingly, P.W.10 went to the
    place of occurrence and set up a ‘Naka’ checking and during checking accused
    was apprehended and on search 34 Nos. of soap cases containing suspected
    brown sugar were recovered by police from the possession of the accused. The
    total weight of the recovered narcotics/drugs was found to be 342 grams.
    Thereafter, P.W.10 prepared a seizure list, obtained signatures of accused and
    independent witnesses on it. Exhibit P-1(4) is the signature of P.W.10 on the
    seizure list Exhibit P-1. The seized contraband drugs were packed and sealed at
    the place of occurrence and P.W.10 obtained the signatures of the witnesses
    and the accused person on the sealed packet. She further deposed that the
    video recording of the entire search and seizure operation was done at the place
    of occurrence. After completion of all the formalities P.W.10 along with his team
    left the place of occurrence along with the seized articles and apprehended
    accused person. After reaching the place of occurrence, P.W.10 handed over the
    seized articles to the in-charge of Malkhana. On the following day P.W.10
    Page No.# 10/23

    produced the seized articles before the court. P.W.10 also made player before
    the court for certification of inventory, photographs and for drawing samples.
    Exhibit P-7 is the inventory wherein Exhibit P-7(1) is her signature, Exhibit P-
    7(2) is the signature of learned Magistrate who put his signature in presence of
    P.W.10. The photographs of the seized items were taken in the court in presence
    of learned Magistrate. Exhibit P-8 is the photographs in three pages wherein
    Exhibit P-8(1) to 8(3) are the signatures of learned Magistrate. P.W.10 sent the
    samples to RFSL, Ghungoor through SP, Office, Cachar for chemical
    examination. Thereafter P.W.10 collected the RFSL report and after completion
    of investigation he submitted charge-sheet vide Exhibit P-10 against the accused
    Ali Hussain under section 21(c) of the NDPS Act. P.W.10 issued certificate under
    section 63 of BSA. Exhibit P-9 is the certificate issued by P.W.10 in connection
    with the sending of compact disc. Containing video footage; Exhibit P-9(1) is the
    signature of P.W.10.

    In her cross-examination, P.W.10 stated that the search operation was
    done in between sunset and sunrise. It reveals from the cross-examination of
    P.W.10 neither the informant nor P.W.10 submitted any report in writing as to
    why the search operation was conducted in between sunset and sunrise. P.W.10
    admitted that prior to her arrival at the place of occurrence the ‘Naka’ checking
    was going on. She also stated that there is a separate GDE in connection with
    setting up of the ‘Naka’ checking, but P.W.10 has not submitted the certified
    extract copy of the said GDE. P.W.10 did not examine Krishna Lal Goala as
    witness in this case though his name was mentioned in the FIR. In the FIR
    P.W.10 did not mention the names of the battalion personnel who were present
    at the place of occurrence. She further stated that statements of the seizure
    witnesses are computer typed. The place of occurrence is a market area. P.W.10
    Page No.# 11/23

    has not mentioned specifically in the seizure list about the weight of the
    individual soap cases. The time of the seizure list is not accurate but P.W.10 has
    mentioned there as ‘at about’. P.W.10 has not given description of the
    impression of seal which was used in sealing the packets. P.W.10 further stated
    that she did not preserve the impression of seal. She also stated that she was
    not authorized by the O/C for taking the seized items from Malkhana to court
    and preparation of the inventory. P.W.10 recorded the statement of only one
    BSF personnel namely M.S. Oraon.

    P.W.10 affirmed that P.W.2 did not state before her that he lodged the FIR
    on 09.01.2025, that after receiving the secret information the BSF personnel
    came from Harinagar camp and they arrived at the P.O. at about 8-30 p.m., that
    the accused person came in a motorcycle and P.W.10 intercepted him, that the
    S.P. Cachar also arrived at the place of occurrence, that total weight of the
    recovered contraband items were approximately 348 grams, that P.W.10 issued
    authority letter in her name for conducting search and seizure. It is also
    affirmed that that the informant P.W.2 did not state before P.W.10 that the
    contraband substances were recovered from a bag which the accused person
    was carrying with him.

    P.W.10 admitted that during investigation she did not find any statement
    of Rabindra Singha taken by the O/C Katigorah PS. P.W.10 further admitted that
    she did not communicate the secret information in writing within 72 hours to
    her superior authority. She did not submit any detailed report within 48 hours
    for completion of the entire procedure of search and seizure.

    On query by the court P.W.10 replied that the secret information was
    received by the O/C, Inspector Joseph V. Keivom.

    Page No.# 12/23

    15. P.W. Sumita Gogoi was also examined as Court witness. C.W.1 Sumita
    Gogoi deposed in her evidence that as per the direction of this court, she has
    have produced the certified extract copies of GDE No.019 dated 09.01.2025,
    GDE No.020 dated 09.01.2025, GDE No.023 dated 09.01.2025, GDE No.002
    dated 10.01.2025, GDE No.007 dated 10.01.2025, GDE No.012 dated
    10.01.2025, GDE No.017 dated 10.01.2025 and 024 dated 10.01.2025. All the
    GD Entries are certified by the O/C of Katigorah P.S., Inspector Joesph V. Keivom
    and she knows his signatures. Exhibit C-1, C-2, C-3, C-4, C-5, C-6, C-7 and C-8
    are the certified extract copies of above mentioned GDEs wherein Exhibit C-
    1(1), C-2(1), C-3(1), С-4(1), C-5(1), C-6(1), C-7(1) and C-8(1) are is the
    signatures of O/C of Katigorah P.S. Exhibit C-9 to Exhibit C-11 are the original
    photographs of inventory wherein Exhibit C-9(1) to Exhibit C-11(1) are the
    signatures of the concerned Magistrate. Exhibit C-12 is the print out of details of
    the mail I/D by which C.W.1 sent the video recording to this court by her e-mail
    I/D.

    Exhibit M.O.1 is her mobile phone (vivo) containing the entire video
    recording from which the mail was sent on 10.01.2025 to this court. Exhibit C-
    13 is the zimmanama by which she has received her mobile phone from this
    court.

    She further deposed that upon perusal of the Exhibit P-9, it appears that
    she has mentioned about a Compact Disc, but the video recording was done in
    her mobile phone and thereafter it was transferred to a pen-drive. C.W.1 also
    deposed that apart from the pen-drive, she also sent the entire recording to the
    designated E-mail I/D of this court from her own E-mail I/D. The said video
    recording is available in her mobile phone.

    During cross-examination by defence C,W.1 stated that Exhibit C-4 is
    Page No.# 13/23

    dated 10.01.2025 at 12.47 hours. She has produced the certified extract copies
    of the GD entries after getting order from this court.

    16. Mr. N.J. Dutta, learned counsel for the appellant has confined his
    submissions to two aspects of the matter referring to the order dated
    10.01.2025 of the Judicial Magistrate First Class, Cachar, Silchar in Katigorah
    Police Station Case No. 02 of 2025, out of which the present case has arisen, a
    certified copy of which has been submitted. It is pointed out that it is clearly
    reflected in the said order that samples are taken from the whole ladies bag
    produced before the Judicial Magistrate First Class, Cachar, Silchar, which has
    been marked as MR 01/25 in seizure list in the following manner–

    “A. As the seized suspected Brown Sugar in a small polythene pouches

    kept in small plastic containers in the shape of soap cases which contained
    transparent polythene pouches of suspected brown sugar which are
    marked-S1 to S34 were opened before the Judicial Magistrate First Class,
    Cachar, Silchar and the said suspected brown sugar is weighed in the
    presence of Judicial Magistrate First Class, Cachar, Silchar. It is found that
    to be of 367 gram in total after weighing the brown sugar in polythene
    pouches one pouch after another.

    B. Thereafter, from each of the transparent polythene pouches of
    suspected brown sugar, specimen of small quantity of suspected brown
    sugar has been drawn from each of the 34 transparent polythene pouches
    of suspected brown sugar and has been collected the same together
    which weighs 16 gram in total in one transparent polythene pouch. Out of
    the said 16 gram of suspected brown sugar, 03 samples of suspected
    brown sugar containing 5 gram each has been prepared and same is put
    in 03 different transparent polythene pouches. These 03 transparent
    Page No.# 14/23

    polythene pouches of samples of suspected brown sugar have been
    packed and put in 03 envelopes bearing the Ref. Case No. and same were
    marked as OS, RS and DS. The remnant of the suspected brown sugar has
    been randomly put back in the transparent polythene pouches of
    suspected brown sugar.

    17. Learned counsel has referred to Rule 10 of the Narcotic Drugs and
    Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022,
    hereinafter referred to as the “2022 Rules” , which reads as follows:-

    “10. Drawing the samples.–(1) One sample, in duplicate, shall be drawn
    from each package and container seized.

    (2) When the packages and containers seized together are of identical size and
    weight bearing identical marking and the contents of each package give
    identical results on colour test by the drugs identification kit, conclusively
    indicating that the packages are identical in all respects, the packages and
    containers may carefully be bunched in lots of not more than ten packages or
    containers, and for each such lot of packages and containers, one sample, in
    duplicate, shall be drawn:

    Provided that in the case of ganja, poppy straw and hashish (charas) it
    may be bunched in lots of not more than forty packages or containers.

    (3) In case of drawing sample from a particular lot, it shall be ensured that
    representative sample in equal quantity is taken from each package or container
    of that lot and mixed together to make a composite whole from which the
    samples are drawn for that lot”.

    18. Despite the aforesaid clear mandate of the Rules, admittedly, after
    drawing small specimens from each of the 34 transparent polythene pouches of
    suspected brown sugar, the same have been mixed together into a mixture
    Page No.# 15/23

    weighing 16 grams in total and the same was put in one transparent polythene
    pouch and out of the 16 grams of suspected brown sugar, 03 numbers of
    samples containing 5 grams each has been prepared and put in three different
    transparent polythene pouches, which were packed in three different envelopes
    marked as OS RS and DS. Therefore, the procedure adopted by the Seizing and
    Sampling Officer before the Magistrate is clearly violative of the mandate of
    Rule 10 of the Rule “2022 rules”. The even otherwise it is the case of the
    prosecution that 34 pouches containing suspected brown sugar was recovered
    and therefore, it is necessary to establish that all the 34 pouches contained
    brown sugar and the total quantity therefore had crossed the threshold for
    commercial quantity of heroin but since all the specimens drawn from each of
    the 34 pouches were mixed together, there remained no possibility of
    determining whether all the 34 pouches contained heroin so as to come to a
    finding that the weight of the contraband would place it in any of the three
    categories that is small, intermediate or commercial.

    19. It is further submitted that there is nothing in the evidence to show that
    all the 34 pouches were of identical size and weight and it is not the case of
    the prosecution that the pouches were treated as identical or that arranging
    them in lots of 10, samples were drawn from one pouch each from each lot.
    Further no drug identification kit was used to test the contents of the packets.
    A Co-Ordinate Bench of this court while dealing with a bail application in Bail
    Application No. 1048 of 2024 in its order dated 05.08.2024 had occasion to
    observe that such a procedure for drawing of samples appears to be contrary
    to what has been provided by the “2022 rules”.

    20. Rule 3 (2) of the 2022 Rules provides that, “if the narcotics drugs,
    psychotropic substance and controlled substance are found in packages or
    Page No.# 16/23

    containers, such packages and containers shall be weighed separately and
    serially numbered for the purpose of identification.”

    21. Similarly, Rule 10 (1) which pertains to drawing of sample provides that
    “one sample in duplicate shall be drawn from each package and containers
    seized”. However, in the instant case, instead of drawing one sample in duplicate
    from each of the 12 packages seized in this case, a homogeneous mixture was
    made, which is contrary to what has been provided in the 2022 Rules.

    22. Rules 10(2) of the 1922 Rules provides that, where after colour test by
    the Drug Identification Kit, it is conclusively indicated that the packages are
    identical in all respect, then the packages may be bunched in lots of not more
    than 10 packets and from each such lot, one sample in duplicate shall be drawn,
    provided in the case of ganja, it may be bunched in lots of not more than 40
    packages or containers.

    23. As per section 76 (2) (d) (f), the Central Government may make rules for
    drawing of samples and testing and analysis of such samples. Pursuant to the
    said power, the Central Government has notified the Narcotics Drugs and
    Psychotropic Substance (Seizure, Storage, Sampling and Disposal) Rules, 2022
    (referred to as “2022 Rules” in this order) on 22nd December, 2022.

    24. Sub-Section 2 of Section 52A of the Narcotic NDPS Act, provides as
    follows:

    “52A. Disposal of seized narcotic drugs and psychotropic substances.–

    (2) Where any narcotic drugs, psychotropic substances, controlled
    substances or conveyances has been seized and forwarded to the officer-in-

    charge of the nearest police station or to the officer empowered under section
    53
    , the officer referred to in sub-section (1) shall prepare an inventory of such
    Page No.# 17/23

    narcotic drugs, psychotropic substances, controlled substances or conveyances
    containing such details relating to their description, quality, quantity, mode of
    packing, marks, numbers or such other identifying particulars of the narcotic
    drugs, psychotropic substances, controlled substances or conveyances or the
    packing in which they are packed, country of origin and other particulars as the
    officer referred to in sub-section (1) may consider relevant to the identity of the
    narcotic drugs, psychotropic substances, controlled substances or conveyances
    in any proceedings under this Act and make an application, to any Magistrate
    for the purpose of–

    (a) certifying the correctness of the inventory so prepared ;or

    (b) taking, in the presence of such Magistrate, photographs of such
    drugs, substances or conveyances and certifying such photographs as
    true; or

    (c) allowing to draw representative samples of such drugs or substances,
    in the presence of such Magistrate and certifying the correctness of any
    list of samples so drawn.

    (3)…………………………………………….

    (4)……………………………………………. ”

    25. Therefore, while the aforesaid section itself does not lay down the
    manner of drawing samples, the 2022 Rules, more specifically, Rule 10 and
    Rule 3 thereof, steps in to provide a very specific methodology of drawing such
    samples.

    26. In Bharat Aambale -Vs- The State of Chhattisgarh reported in
    2025 INSC 78, it has been held as follows :-

    “50. We summarize our final conclusion as under:-

    Page No.# 18/23

    (I)…………………………

    (II)……………………….

    (III)………………………

    (IV)………………………..

    (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 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 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
    Page No.# 19/23

    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”.

    27. From the above it follows that it is not every violation viz-a-viz Section 52
    A
    of NDPS Act and consequently the Rules framed thereunder that vitiates the
    trial. The effect of such lapse on the credibility of the prosecution case is to be
    seen as also the prejudiced caused to the accused by such lapse. In the
    instant case, 34 pouches were recovered and he contents thereof were mixed
    together, in violation of the 2022 Rules. As a result, the contents of the 34
    pouches lost their individual identity. Therefore, although the mixed up material
    tested positive for heroin, the total quantity (weight) of heroin is rendered
    indeterminable, in asmuch as, even if one of the pouches contained sufficient
    proportion of heroin, the sample that has been taken from the mixed up lot
    would test positive for heroin. In that case, the most that can be said to have
    been recovered from the accused, in terms of weight, is a small quantity. No
    doubt, in Hira Singh -Vs- Union of India reported in AIR 2020 SC 3255,
    wherein it has been held that the weight of neutral substance is also to be
    counted, the said principle would be applicable to the individual packets or
    containers only, and not when untested contents of all the containers are mixed
    together. In other words, only if positive samples from each container exist,
    then only the entire weight is to be taken into account.

    28. The second limb of argument advanced by learned counsel for the
    appellant is regarding non-compliance with the provisions of Section 50 of the
    NDPS Act, which reads as follows:-

    “50. Conditions under which search of persons shall be conducted.–

    Page No.# 20/23

    (1) When any officer duly authorised under section 42 is about to search any
    person under the provisions of section 41, section 42 or section 43, he shall, if
    such person so requires, take such person without unnecessary delay to nearest
    Gazetted Officer of any of the departments mentioned in section 42 or to the
    nearest Magistrate.

    (2) If such requisition is made, the officer may detain the person until he can
    bring him before the Gazetted Officer or the Magistrate referred to in sub-

    section (1).

    (3) The Gazetted Officer or the Magistrate before whom any such person is
    brought shall, if he sees no reasonable ground for search, forthwith discharge
    the person but otherwise shall direct that search be made.

    (4) No female shall be searched by anyone excepting a female.

    (5) When an officer duly authorised under section 42 has reason to believe that
    it is not possible to take the person to be searched to the nearest Gazetted
    Officer or Magistrate without the possibility of the person to be searched parting
    with possession of any narcotic drug or psychotropic substance, or controlled
    substance or article or document, he may, instead of taking such person to the
    nearest Gazetted Officer or Magistrate, proceed to search the person as
    provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).

    (6) After a search is conducted under sub-section (5), the officer shall record
    the reasons for such belief which necessitated such search and within seventy-
    two hours send a copy thereof to his immediate official superior.”

    29. It is not disputed and is evident from a perusal of the relevant GD Entry,
    the FIR, the forwarding report as well as the charge-sheet that in each of these
    documents it has been stated that 34 pouches containing suspected drugs
    were recovered from the possession of the accused appellant. Nowhere has it
    Page No.# 21/23

    been stated that the said contraband was recovered from a bag being carried
    by the appellant. Even the seizure list does not mention any such bag and none
    was produced in course of the trial, although witnesses have deposed that the
    recovery was made from a bag being carried by the appellant. In fact, it has
    been specifically stated in the charge-sheet that after search of the
    apprehended accused person, 34 numbers of soap cases containing suspected
    brown sugar weighing approximately 342 grams were recovered from his
    possession.

    30. In such circumstances, the accused ought to have been informed of his
    right to be searched in the presence of a Magistrate or a Gadgeted officer but
    admittedly no such information was communicated to the accused appellant
    and there is no evidence to that effect either.

    31. It is submitted that it is only during the course of the trial that the
    witnesses have deposed to the recovery of the contraband from a bag being
    carried by the appellant.

    32. From the above, it would appear that search of person of the accused
    appellant was also carried out and regardless of the fact whether the actual
    recovery was made from a bag being carried by the petitioner, it was
    incumbent upon the police to have complied with Section 50 of the NDPS Act
    as held by the Hon’ble Apex Court in State of Rajasthan -Vs- Parmanand
    and Anr., in Criminal Appeal No. 78 of 2005, wherein it has been held as
    follows:-

    “10. In Dilip & Anr. v. State of Madhya Pradesh 8, on the basis of
    information, search of the person of the accused was conducted. Nothing was
    found on their person. But on search of the scooter they were riding, opium
    contained in plastic bag was recovered. This Court held that provisions
    Page No.# 22/23

    of Section 50 might not have been required to be complied with so far as the
    search of the scooter is concerned, but keeping in view the fact that the
    person of the accused was also searched, it was obligatory on the part of the
    officers to comply with the said provisions, which was not done. This Court
    confirmed the acquittal of the accused.

    11. In Union of India v. Shah Alam 9, heroin was first recovered from the
    bags carried by the respondents therein. Thereafter, their personal search was
    taken but nothing was recovered from their person. It was urged that since
    personal search did not lead to any recovery, there was no need to comply with
    the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that
    since the provisions of Section 50 of the NDPS Act were not complied with, the
    High Court was right in acquitting the respondents on that ground.

    12. Thus, if merely a bag carried by a person is searched without there being
    any search of his person, Section 50 of the NDPS Act will have no application.
    But if the bag carried by him is searched and his person is also
    searched, Section 50 of the NDPS Act will have application. In this case,
    respondent No.1 Parmanand’s bag was searched. From the bag, opium was
    recovered. His personal search was also carried out. Personal search of
    respondent No.2 Surajmal was also conducted. Therefore, in light of judgments
    of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS
    Act will have application”.

    33. In view of the aforesaid omissions and lapses on the part of the police, it
    is evident that the mandatory provisions of the Act and the relevant rules have
    not been complied with and the same is sufficient to vitiate the investigation as
    well as the trial and the factum of recovery itself has come under a cloud of
    suspicion.

    34. The said discrepancies/violatives have not been explained with reference
    to any material by the prosecution in the course of hearing of the appeal.

    35. For the aforesaid reasons, the impugned Judgement and Sentence
    cannot be allowed to stand and is accordingly set aside.

    Page No.# 23/23

    36. The appeal stands allowed. Appellant be set at liberty forthwith.

    37. Send back the TCR.

    JUDGE

    Comparing Assistant



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