Gauhati High Court
Crl.A./28/2026 on 6 August, 2026
Page No.# 1/23
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
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.# 14/23polythene 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
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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
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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
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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.–
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(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.# 22/23of 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.
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36. The appeal stands allowed. Appellant be set at liberty forthwith.
37. Send back the TCR.
JUDGE
Comparing Assistant
