Page No.# 1/25

GAHC010198282023

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./331/2023

LANAHMAI STEPHEN THINGAO AND ANR.

S/O LANAHMAI PHAOSHI STEPHEN,

R/O KHAMSOM, MAO MARAM SUB DIVISION, P.S.- SENAPATI, DIST.-

SENAPATI, MANIPUR, PIN- 795106.

2: VEIPUH PROU @ ROKU BAIPU

S/O H. DAVID

R/O KODOM KHAVII VILLAGE

P.S.- PHAIBUNG (EARLIER TADUBI)

DIST.- SENAPATI

MANIPUR

PIN- 795106

VERSUS

THE STATE OF ASSAM

REP. BY THE PUBLIC PROSECUTOR.

Advocate for the Petitioner : MR. A M BORA, MS. C CHOUDHURY,MR. B BHAGAWATI,MR.

V A CHOWDHURY

Advocate for the Respondent : PP, ASSAM,

- B E F O R E -

HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

For the Appellant : Mr. A.M Bora, Sr.Adv Page No.# 1/25

GAHC010198282023

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./331/2023

LANAHMAI STEPHEN THINGAO AND ANR.

S/O LANAHMAI PHAOSHI STEPHEN,

R/O KHAMSOM, MAO MARAM SUB DIVISION, P.S.- SENAPATI, DIST.-

SENAPATI, MANIPUR, PIN- 795106.

2: VEIPUH PROU @ ROKU BAIPU

S/O H. DAVID

R/O KODOM KHAVII VILLAGE

P.S.- PHAIBUNG (EARLIER TADUBI)

DIST.- SENAPATI

MANIPUR

PIN- 795106

VERSUS

THE STATE OF ASSAM

REP. BY THE PUBLIC PROSECUTOR.

Advocate for the Petitioner : MR. A M BORA, MS. C CHOUDHURY,MR. B BHAGAWATI,MR.

V A CHOWDHURY

Advocate for the Respondent : PP, ASSAM,

- B E F O R E -

HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

For the Appellant : Mr. A.M Bora, Sr.Adv

Page No.# 2/25

: Mr. V.A. Chowdhury, Adv.

For the Respondents : Mr. M.P. Goswami, Addl. PP

Date of hearing : 02.08.2024

Date of judgment : 23.09.2024

JUDGMENT & ORDER (CAV)

1. Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. V.A

Chowdhury, learned counsel for the appellant. Also heard Mr. M.P.

Goswami, learned Addl. PP, Assam.

2. The present appeal is filed under section 36B of the NDPS Act,

1985 read with section 374 (2) of the Cr.P.C against the judgment and

order of conviction dated 27.07.2023 passed by learned Special Judge,

NDPS, Karbi Anglong whereby the appellants were convicted and

sentenced to suffer rigorous imprisonment for 10 years with a fine of

Rs.50,000/- for offence under section 21(c) of the NDPS Act, 1985

(hereinafter referred to as Act, 1985) and in default to undergo simple

imprisonment for another 6 months.

3. The prosecution case in a nutshell is that on 08.05.2022 at

around 11.15 PM, a black coloured Maruti Ciaz (without registration

number) was stopped at the naka checking which was driven by one

Lanahmai Stephen Tingao (A1) with Veipuh Prou @ Roku Baipu (A-2) as

co passenger. On being checked, 1995.29 grams of suspected heroin

Page No.# 3/25

was recovered from the dickey of the car. Seizure list was prepared and

formal FIR was thereafter lodged by SI (UB) Lutfur Rahman.

4. On receipt of the FIR, Dillai PS Case No.12/2022 was registered

on 09.05.2022 and the appellants were arrested. According to the

prosecution, representative samples were prepared in presence of the

Magistrate and was sent to FSL for expert examination and on conclusion

of investigation, investigating authority submitted charge sheet being CS

No.13/2022 dated 26.07.2022 against accused Lanahmai Stephen

Thingao (A-1) and Veipuh Prou @ Roku Baipu (A-2) under sections 22(c),

27A and section 29 of the Act, 1985.

5. On receipt of the charge sheet, the special case was registered

and cognizance was taken. Charges were framed under sections 21(c),

27A and Section 29 of the Act, 1985 against the above named

appellants. The appellants pleaded not guilty accordingly the trial

commenced.

6. To bring home the charge, the prosecution examined as many

as 6 witnesses and exhibited certain documents. The accused were

examined under Section 313 Cr.P.C. however, they did not adduce any

evidence. Thereafter, the impugned judgment and sentence was passed

as recorded hereinabove. Being aggrieved the present appeal is

preferred.

7. Mr. A. M. Bora, learned Senior Counsel for the appellant argues

that the articles alleged to have been seized were not kept in safe

custody from the time of alleged seizure i.e. from 01:00 AM of

09.05.2022 till its production before the Magistrate on 10.05.2022. Thus,

there is a serious doubt whether the materials produced are actually the

Page No.# 4/25

seized materials. In support of such contention, Mr. Bora, learned Senior

Counsel relies on the judgment of the Hon’ble Apex Court in the case of

Valsala –Vs- State of Kerela reported in 1993 (3) SCC (Supp)

665 and Md. Khalid -Vs- State of Telangana reported in 2024 SCC

Online SC 213.

8. Mr. Bora further contends that the custody of the seized

materials itself is doubtful inasmuch as from the evidence of PW-4, the

Seizing Officer and the PW-6, the Investigating Officer, it is established

that the alleged contraband has travelled from the place of seizure to

Dillai Police Station and thereafter, to Bokajan Police Station and there is

no evidence, how the seized materials reached Bokajan Police Station

from Dillai Police Station.

9. The accused are entitled for acquittal for non adherence of

Section 52A of the Act, 1985. No application under such provision was

exhibited nor was the list of sample tendered in evidence duly certified

by the Magistrate. There is no material to suggest adherence of the

mandate of law of mixing all the seized materials to make it a

homogeneous and representative of the seized material. It is contended

that the list of sample stated to be prepared before the Magistrate was

also not exhibited.

10. According to Mr. Bora, learned Senior counsel for the appellants,

during the course of trial no evidence was produced that alleged

contrabands were disposed of inasmuch as PW-6 i.e. the I.O. in his

examination deposed that seized drugs were not destroyed by them.

11. It is seriously contended by the learned senior counsel for the

appellants that there is no evidence to suggest that inventory of seized

Page No.# 5/25

articles was prepared by the Officer in Charge of the police station , as

per mandate of Section 52A(2) of the Act, 1985.

12. It is strenuously argued that there is total noncompliance of

Section 42 of the Act, 1985. Admittedly, the seizure was made at 01 AM

on 09.05.2022, however, proviso to sub section 1 of Section 42 was not

complied with. No grounds were recorded by the seizing officer as to why

the seizure has to be made at night without affording opportunity for

concealment of evidence etc., inasmuch as there is no evidence on

record that a copy of such recorded ground was intimated to superior

officer within 72 hours as mandated under Section 42(2) of the Act,

1985. In support, the decision of the Hon’ble Apex Court rendered in the

case of State of Rajasthan vs Jag Raj Singh reported in 2016 11

SCC 687 is pressed.

13. Countering such argument, Mr. M. P. Goswami, learned

Additional Public Prosecutor contends that there is no violation of Section

42 of the Act, 1985. The Exhibit-P-3/PW-4, (GD Entry) clearly establishes

that due authorization was given after getting information as regards

movement of the contraband from the PW-4. The PW-3 is the officer

empowered to give authorization and she herself was present all along

during the search. Therefore, non exhibiting of said authorization letter is

not fatal, as authority letter is a part of record. Alternatively, it is argued

that the reasons were recorded in the GD Entry for conducting search

and seizure after the sunset. Therefore, in the given facts of the present

case, proviso to Section 42 and Section 42(2) of the Act, 1985 would not

be attracted as information was duly forwarded before search and seizure

and the Seizing Officer was duly authorized to conduct search and

Page No.# 6/25

seizure. In this regard, Mr. Goswami, learned Additional Public Prosecutor

relies on the decision of the Hon’ble Apex Court rendered in State of

Haryana vs Jarnail Singh reported in (2004) 4 Supreme 3.

Accordingly, he contends that there is substantial compliance of Section

42 and no prejudice has been caused to the petitioners and therefore,

such ground cannot be a ground for acquittal. In support ,decision of the

hon’ble Apex Court rendered in the case of Karnail Singh vs State of

Haryana reported in (2009) 8 SCC 539 is pressed.

14. According to Mr. Goswami, the PW-1 and PW-2 were the

independent seizure witnesses who had fully supported the prosecution

case of seizure and recovery from the conscious possession of the

accused. Such testimony was corroborated by PW-3 and PW-4.

Therefore, the proof of such seizure and conscious possession, the

burden shifts upon the accused to discharge that he is not guilty in terms

of Section 54 of the Act, 1985, which the accused failed in the present

case.

15. The doubt raised as regards the chain of custody is an

afterthought and it has been raised for the first time before this Court

and there is no challenge or suggestion alleging that the contraband was

not kept at Malkhana at Dillai Police Station. Therefore, such contention

cannot be entertained at this appellate stage, argues Mr. Goswami.

16. The evidence of PW-6 and order dated 10.05.2022 of the

learned Magistrate, it is clear that samples and photographs were taken

in presence of the Magistrate. The order of the Magistrate also reveals

that the facsimile of the seal was “O/C BJN P.S.” In fact, the samples

were drawn in terms of Section 52 A (2) of the Act, 1985. The certificate

Page No.# 7/25

issued by the Magistrate certifies as regards the correctness of the

inventory and that the photographs and samples were drawn before the

Magistrate and sealed in front of the Magistrate and thus, there is no

violation of Section 52 A of the Act, 1985. It is his further contention that

though entire contrabands were not produced, the same will not vitiate

the trial inasmuch as non production cannot be sole ground of acquittal

of the accused.

17. I have given anxious considerations to the arguments advanced by

the learned counsel for the parties and also perused the material

available on record.

18. Before dealing with the arguments advanced by the learned

counsel for the parties, let this court first look into the depositions and

testimonies of the witnesses.

I. PW-1, Md. Abdul Ali is an auto driver and he was

returning from Dimapur after dropping passengers. His house is

at Dillai gate where the police had set up the naka checking. PW-

1 saw recovery of 152 numbers of soap cases from the dickey of

the black coloured car concealed in 2 rice bags. PW-1 further

stated that the police weighed the recovered drugs in his presence

and found the total weight to be around 2 KG. It is testified that

police prepared the seizure list and he put his signature in the

seizure list as witness. PW-1 identified the appellants as persons

travelling by the black coloured Ciaz car from which the

contraband was recovered. PW-1 in his cross examination has

deposed that while he was returning from Dimapur, police signaled

his auto-rickshaw to stop at the naka checking and accordingly he

Page No.# 8/25

stopped his vehicle. At that time PW-1 saw recovery of contraband

from the dickey of the black coloured car. PW-1 further deposed

that he used to drive auto rickshaw and has developed friendly

relation with the police personnel of the locality.

II. PW-2, Jit Bahadur Chetry deposed that one day in the

night hours police stopped a car at 12

th

mile, Dillai gate and

recovered 152 numbers of drugs packet from inside the said

vehicle. At that time two persons were inside the vehicle. Once

the recovery was made, police weighed the drugs packet and

prepared the seizure list and PW-2 put his signature as a witness

in the seizure list. PW-2 in his cross examination stated that he

was a member of village defence party and he has signed as a

witness in other drug related cases earlier also. PW-2 further

deposed that PW-1 was not present at that time and that apart he

could not identify the two accused persons travelling in that car on

that night.

III. PW-3, Deputy SP Nahid Karishma deposed in her

evidence that on the day of occurrence at about 10.30 PM, the OC

of Dillai PS, SI Lutfur Rahman informed her about transportation

of large quantity of drugs from Dimapur to Assam through NH-36.

On receiving the information she rushed to Dillai where the other

police personnel stopped a black coloured Ciaz Car without

registration number. The vehicle was searched in her presence

and 152 numbers of plastic soap boxes were recovered from the

dickey of the car concealed in two rice bags. PW-3 identified A1

Lanahmai Stephen Thingao and A2 Veipuh Prou @ Roku Baipu as

Page No.# 9/25

the persons who were inside the car. A field test was conducted

and the recovered drugs gave positive result for heroin. PW-3 in

her cross examination deposed that she gave authorization letter

to SI, Lutfur Rahman to search and seize in night hours. PW-3

further deposed that at the time of seizure there were two

independent witnesses present, however, she does not remember

their names.

IV. PW-4, SI (UB) Lutfur Rahman who is the informant of

this case deposed in his evidence that he received secret

information about transportation of huge quantity of drugs from

Dimapur to Assam and immediately reported the matter to Deputy

SP, his superior officer. Then he went to 12

th

mile Naka checking

points and at about 11:15 PM intercepted a black coloured Ciaz

car without having any registration number. The car was searched

in presence of local witnesses and they recovered 152 numbers of

soap boxes containing suspected heroin from the dickey of the

car. The heroines were kept concealed in two rice bags. PW-4

further deposed that accused Lanahmai Stephen Thingao and

Veipuh Prou @ Roku were inside the car and were immediately

taken into custody. PW-4 in his evidence further deposed that the

recovered drugs were tested by Deputy SP Nahid Karishma and

gave positive result for heroin. The recovered heroin was then

weighed and found to be 1995.29 grams. Thereafter, PW-4

prepared a seizure list and the witnesses put their signatures in it.

The seizure was video recorded and PW-4 lodged the FIR. During

cross-examination of PW-4, the defence tried to elicit that prayer

Page No.# 10/25

for drawl or representative samples were made belatedly.

However, record goes to show that prayer for drawing

representative samples was made by SI Rafsanjani Ahmed on

09.05.2022 itself and bears the seal and signature of Judicial

Magistrate First Class. PW-4 further deposed that as per record,

on the same day i.e., 09.05.2022 the seized contraband was

produced before the Magistrate and on 10.05.2022 the

representative samples were taken in presence of the Magistrate.

V. PW-5, Dr. Abhijit Gogoi deposed in his evidence that

on 13.05.2022 he was posted as Scientific Officer of Drugs and

Narcotics Division, Directorate of Forensic Science, Kahilipara and

on that day he received a sealed carton box in connection with

Dillai PS Case No.12/2022 for examination. The sealed coarton

box consisted of 15 samples in a sealed envelope cover. Each

exhibit was having a closed polythene packet containing 5.31 g,

5.52g,5.51g, 5.8g, 5.62g, 5.41g, 5.51g, 5.48g, 5.75g, 5.61g,

5.67g, 5.81g, 5.61g, 5.51g and 5.57g of brown colour powdery

substances, marked as DN – 1198/2022 (a

1

) to DN-1198/2022

(a

15

). PW-5 further deposed that he examined the samples as per

the United Nations Drugs Testing Laboratory Manual and found

that exhibits DN-1198/2022(a

1

) to DN-1198/2022(a

15

) gave

positive test for heroin and the percentage of heroin in each

exhibit was found to be 87.52%. PW-5’s report is marked as

Exhibit-P9/PW-5. In his cross examination PW-5 remained firm in

his opinion.

Page No.# 11/25

VI. PW-6, SI Rafsanjani Ahmed is the investigating officer

and his testimony is formal in nature. PW-6 in his deposition

stated that he made a prayer for collecting representative samples

on 09.05.2022 itself and it the Magistrate conducted the

proceeding on 10.05.2022. It is stated by PW-6 that on

12.05.2022 he sent the samples to FSL, Guwahati for examination.

The samples tested positive for heroin and on 22.07.2022 PW-6

received the FSL report from Forensic Laboratory, Guwahati. Then,

after completing the investigation, he submitted the charge sheet

vide CS No.13/22 dated 26.07.2022 against both the accused

appellants Lanahmai Stephen Thingao and Veipuh Prou @ Roku

under sections 21(c), 27 and 29 of the Act,1985. PW-6 in his

cross examination admitted that he was not present at the time of

recovery of the contraband and seizure. PW-6 in his cross

examination admitted that representative samples were sent on

12.05.2022 even though the samples were certified and sealed by

Magistrate on 10.05.2022. The defence side put a question to PW-

6 that whether the chain of the custody of the seized articles were

during the period from 10.05.2022 to 12.05.2022.

19. The fundamental argument of Mr. Bora, learned Senior counsel is

as regards non-compliance of Section 42 and 52A of the Act, 1985 and

according to Mr. Bora, there is total noncompliance and according to Mr.

Goswami, there is substantial compliance. Now in the backdrop of such

argument and the evidence available on record, let this court deal with

the issues.

Page No.# 12/25

20. Law is by now well settled that the procedure more particularly, the

procedure relating to search ,seizure, disposal of narcotics etc are to be

strictly followed, inasmuch as the Act,1985 contains stringent provision.

As one of the important contentions is non adherence of provision of

section 42, let this court first deal with Section 42.

21. Chapter V of the Act 1985 specifically deals with the “Procedure”.

Section 42 under this Chapter clearly prescribes that certain specific

authorities are empowered to carry out search and seizure in a

prescribed manner with a power to such officer to give an authorization

to a subordinate, only when such officer has reason to believe that an

offence punishable under Act, 1985 has been committed etc and the

officer while doing so, is to reduce such information, if any, into writing.

Thus, two conditions are necessary i.e., the Magistrate or the officer

mentioned in the Section are empowered to authorize search and seizure

and that they have reason to believe that an offence under chapter IV

has been committed or that such arrest or search was necessary for

other purposes mentioned in the Act, 1985.

22. Section 42 of the Act,1985 makes it further clear that the

empowered officer can enter, search, seize and arrest even without

warrant or authorization, if he has reason to believe from his personal

knowledge or information taken down in writing that an offence under

Chapter IV of the Act, 1985 is committed. Proviso to sub section 1 of

Section 42 even empowers him/ her to enter and search such building or

conveyance or enclosed space at any time between sunset and sunrise

when the officer has reason to believe that a search warrant or

authorization cannot be obtained without affording opportunity for the

Page No.# 13/25

concealment of evidence or facility for escape of an offender, however, he

is to record the ground of such belief and send the same to his

immediate official superior in terms of sub section 2 of Section 42.

23. It is equally well settled that though delayed compliance with

satisfactory explanation about the delay is acceptable compliance of

Section 42 of the Act, 1985, total non compliance of Section 42 is

impermissible under law and such non-compliance may vitiate the entire

trial.

24. Now, coming to the case in hand, as per the seizure list (Ext P-

25/PW6), admittedly, the seizure was conducted in the night of

9.05.2022 at 1 AM. The evidence of PW-4, the informant SI, PW-6, the

I.O and PW-3, the Deputy Superintendent of Police are vital. According

to PW-4, he received the secret information at around 10.30 PM and he

informed the matter to PW-6 and made a General Diary Entry vide Dillai

PS GD No.162 dated 08.05.2022. The extract copy of such GD entry is

also exhibited as exhibit P-3, P-4. Though, the GD Entry reflects that he

has received the information from the source, however no satisfaction

was recorded in terms of Sub section 2 of proviso to section 42 and there

is nothing on record to show that there is compliance of Sub section 2 of

section 42 and there is no exhibit to suggest such compliance.

25. Though PW-4 deposed that as the operation of search, seizure and

arrest would probably be before the sunrise, a written authorization was

issued to him by PW-6 and according to him same was entered in Dillai

PS Case No 162 dated 08.05.2022, however, nothing is discernible from

the exhibit-P-3 i.e., from the extract copy of GD E No. 162. Though PW-6

also deposed that she was informed by PW-4 as regards the movement

Page No.# 14/25

of narcotic drugs and she directed PW-4 to set up a naka and she was

present at the place of occurrence, however, nothing has been exhibited

regarding any written authorization nor anything has been produced by

the prosecution to suggest that sub section 2 of section 42 was complied

subsequently.

26. Another aspect of the matter is that as per the version of the PW4,

he received the secret information on 08.05.2022 at about 10.30 pm and

made GD entry No. 162 dated 08.05.2022 and admittedly the search was

conducted at about 11.15 p.m. i.e. after sunset. As recorded

hereinabove, the prosecution has not exhibited any written authority

from the superior officer for conducting the alleged search and seizure.

Neither the GD Entry 162 exhibited by the persecution reflects any

satisfaction that he has reason to believe that a search warrant or

authorization cannot be obtained without affording opportunity for the

concealment of evidence etc., nor anything has been exhibited to suggest

that the grounds recorded was sent to immediate superior officer within

72 hours as per mandate of proviso to Section 42 of the Act, 1985.

Therefore, in the considered opinion of this court, there is total

noncompliance of Section 42 in this regard.

27. Thus, such search and seizure, is bound to be held to be without

sanction of law and the same is inherently illegal. That being so, such

search and seizure cannot form the basis of a proceeding in respect of

offences under Chapter IV of the Act, 1985 and use of such a material by

prosecution shall vitiate the trial. This court cannot be oblivious of the

object of the Act, 1985 that such Act is enacted to control and regulate

the operations relating to narcotic drugs and substances, however, this

Page No.# 15/25

court cannot also be unmindful at the same time that the safeguards

provided under this Act, 1985 more particularly, section 42 is to be

followed.

28. The argument of Mr. Goswami that the authorized officer was

herself present with the search team at the time of seizure and therefore,

there is compliance of Section 42 do not find favor from this court

inasmuch as, such authorization cannot be verbal and that the accused

cannot be allowed to be prejudiced for the failure of the prosecution in

non exhibiting the written authorization inasmuch as, in absence of

exhibiting the same, such authorization can neither be relied nor the

accused had any opportunity to cross examine on veracity of such

document.

29. Now coming to the Section 52A of the Act, 1985 said Section deals

with disposal of seized narcotic drugs and psychotropic substance.

Section 52A(2) mandates that where any contraband has been seized

and forwarded to the officer-in-charge of the nearest police station or to

an officer empowered under Section 53, such officer is mandated to

prepare an inventory of such contraband or conveyance containing such

detail mentioned therein or such identifying particulars of the contraband

or conveyance or the packing in which they are packed or country of

origin and other particulars as the officer-in-Charge or the empowered

officer may consider relevant to the identity of the seized contraband or

conveyance in any proceeding under the Act, 1985. Thus, the

determination of identity is a vital aspect.

30. Such provision further mandates that the officer is to make an

application to a Magistrate for the following purposes:

Page No.# 16/25

I. Certifying the correctness of the inventory so prepared

or;

II. Taking photograph of such seized contraband and

conveyance in presence of the Magistrate and certifying such

photograph by the Magistrate to be true and;

III. Allowing to draw representative sample of such seized

material in presence of the Magistrate and for certifying the

correctness of the list of samples.

31. Thus, not only the identity of the inventory but also certification as

regards correctness of such inventory is prescribed. It is important to

note that sub-section 3 of Section 52A mandates that when an

application under Subsection 2 is filed, the Magistrate is required to allow

the application as soon as possible. Another important aspect of the

provision of Section 52A is Subsection 4, which is a non-obstante clause.

It prescribes that notwithstanding anything contained in the Indian

Evidence Act, 1872, the inventory, the photographs or the list of samples

certified by the Magistrate is recognized as primary evidence in respect of

such offence.

32. The provision of Section 52A of the Act,1985 was elaborately dealt

with by the Hon’ble Apex court in the case of Union of India vs

Mohanlal reported in (2016) 3 SCC 379. Such provision was again

elaborately dealt by the Hon’ble Apex Court in Mangilal Vs State of

Madhya Pradesh reported in (2023) 10 SCR 517. The Hon’ble Apex

court in both the cases also elaborately dealt with the notification issued

by the Ministry of Finance (Department of Revenue), Government of

India in exercise of its power conferred by Section 52A of the Act, 1985.

Page No.# 17/25

The said notification had laid down the detail procedure of disposal of

narcotic drugs, psychotropic substance, control substances and

conveyance after their seizure.

33. In Mohanlal (supra), the Hon’ble Apex Court mandated that

immediately after seizure of narcotic drugs and psychotropic and control

substances and conveyance, the same should be forwarded to the O/C of

the nearest police station or to the officer empowered under Section 53

of the Act. It was further mandated that the officer concerned shall then

approach the Magistrate with an application under Section 52A(2), which

is to be allowed by the Magistrate under Subsection 3 of the said Section

as soon as possible and the sampling shall be done under supervision of

the Magistrate.

34. In Mangilal (Supra), it was held that the object of Subsection 1

of Section 52A of the Act, 1985 is to create a clear mechanism for

disposal of the seized material and to ensure that the contrabands arenot

used for any illegal purposes. The object of Subsection 2 of Section 52A

is to have an element of supervision by the Magistrate over the disposal

of seized contraband and until and unless there is certification prescribed

under such provision such invented photograph or list of samples would

not constitute primary evidence.

35. It was further laid down by the Hon’ble Apex Court that though any

notification issued under Subsection 1 of Section 52A cannot contradict

the main provision, particularly Subsection 2 of Section 52A, however,

guidelines issued by way of notification under Section 52A of the Act has

to be followed mandatorily. The Hon’ble Apex Court in Mangilal (supra)

further held that Court must have a satisfaction as regards compliance of

Page No.# 18/25

such provision, while deciding the case and the onus of such proof on

such compliance lies upon the prosecution, when such an issue arises for

consideration. It was further held that production of seized material is a

factor to establish the recovery followed by the seizure. Nonproduction of

physical evidence in terms of Section 114(g) of the Indian Evidence Act,

1872 is relaxed by virtue of Subsection 2 of Section 52A.

36. It is a well settled proposition of law that the best evidence would

be the seized material itself and generally, oral evidence as to the feature

of the seized material and the production of seizure list does not

discharge the heavy burden, which lies in prosecution, more particularly,

when the offence is punishable with the stringent sentence under Act,

1985. It is also equally settled that the physical evidence of a case under

Act, 1985 is the property of court and nonproduction thereof, may

warrant drawing of negative inference within the meaning of Section

114(g) of the Indian Evidence Act, 1872 and therefore, the alternative

mode for primary evidence as prescribed under Subsection 4 of the

Section 52A of the Act, 1985 is to be strictly followed to treat the

evidence to be in the standard of primary evidence.

37. From the aforesaid discussion, this court safely conclude that

compliance of Section 52A is crucial for ensuring that the evidence

collected is admissible in court. If the procedure for sampling,

certification and disposal of said substances is not followed correctly, it

may result in exclusion of the evidence as in absence of it the chain of

custody and the integrity of evidence would be compromised. It is

equally true that there may be a distinction between substantial

compliance and mere technical noncompliance. If the essential

Page No.# 19/25

requirement of Section 52A is made and the non-compliance does not

materially affect the outcome of the case or the right of the accused, the

court may over look minor procedural lapses. A note of caution is that

the prejudice of the accused is an important facet in this regards. It is yet

another aspect that non-compliance of Section 52A of the Act, 1985 can

have a serious legal consequence particularly in term of admissibility of

evidence and the over all fairness of the trial. Court is to ensure that such

procedural lapsed are carefully scrutinized to protect of the right of the

accused, while considering the integrity of the prosecution case. While

minor technical lapses may be ignored under the principle of substantial

compliance, significant noncompliance that compromises the integrity of

the evidence or the fairness of the trial can lead to exclusion of evidence,

acquittal of the accused or setting aside a conviction on appeal.

38. In the case in hand, it is seen that the seizure list of the alleged

contraband was exhibited by PW2 through Ext P-2. In terms of the

seizure list the seizure was carried out at 1 am on 09.05.2022. The I/O,

PW6 deposed that he brought the alleged contraband to the Magistrate

on 10.05.2022. The PW-6 further deposed he drew sample before the

Magistrate on 10.05.2022 and sample was sent to FSL on 10.05.2022. In

the case in hand, the PW6, I/O deposed that the seized drugs were not

destroyed by them. The prosecution has also not led any primary

evidence by producing the alleged contraband. Thus, such non-

production of the seized contraband physically before the trial court is

against the mandate of Section 114(g) of the Indian Evidence Act, 1872.

Though it is stated by the PW6 that he produced the contraband before

the Magistrate on 10.05.2022 and that samples were taken before the

Page No.# 20/25

Magistrate, however the prosecution had also failed to prove that the

procedure for preparing the inventory of the said contraband substance

and the samples were drawn before the Magistrate inasmuch as though a

certificate of the Magistrate is exhibited as Ext P-25/PW6. Such certificate

is not in terms of the mandate of the provision prescribed. However, by

way of such exhibit i.e. P-25/PW6, the Magistrate certified that the

inventory is as per the seizure document and the consignments of said

seized goods is related to the case and the inventory is correct. However,

what is mandated under law and as recorded hereinabove, is not only the

correctness of inventory so prepared but also certification that the

photographs of such seized contrabands was taken before the Magistrate

and that such photographs are true and also that the samples were

drawn in presence of the Magistrate and the samples are correct.

However, as recorded hereinabove, except a certification to the effect

that inventory is correct, nothing is there. Perusal of the said exhibits,

clarifies that such exhibit is a certificate in terms of Sub Section 3 of

Section 52A. However, the Magistrate has not certified that is not in

terms of Annexure 1 of notification dated 06.01.2015. Even if, it is

assumed such certificate is a certificate certifying the correctness of the

inventory of the said contraband substance, however no list of samples

drawn under Subsection 2 of Section 51A of the Act, 1985 with due

certification from the Magistrate in the form prescribed were not

exhibited before the trial court. Though, certain photographs were

exhibited, in absence of such certificate under Subsection 2 of Section

52A, no presumption can be drawn that the samples were taken in

presence of the Magistrate. Thus, until and unless the certification is

Page No.# 21/25

there and in absence of physical exhibit of the contraband allegedly

seized from the accused person and in absence of the certificate as

required, it cannot be presumed that the sample were taken in presence

of the Magistrate. Therefore, in the considered opinion of this Court,

there was no evidence to establish that it is the representative sample of

the contraband seized and that it is the true photographs of such sample

taken before the Magistrate. That being the position, the prosecution has

failed to show that there is compliance of Section 52A of the Act and

therefore, the prosecution has not only failed to lead primary evidence in

this regard in terms of Section 114(g) of the Indian Evidence Act, but

also failed to produce any evidence by way of the alternative mode of

primary evidence as prescribed under Sub Section 4 of Section 52 of the

Evidence Act. Thus, there was neither primary evidence nor secondary

evidence. That being the position, in the considered opinion of this Court,

the prosecution case is liable to fall on this count.

39. Now let this court deal with the argument as regards safe

custody of the seized contraband. From the evidence of PW1 and PW2,

the two independent seizure witnesses, the prosecution has been able to

establish that the occurrence took place on 09.05.2022 at Dillai, 12 mile

after 11 pm and the police personnel searched a Ciaz vehicle and

recovered 152 numbers of soap cases in two numbers of rice bag kept

concealed from the dickie of the car and that the two accused persons

were the only occupants of the vehicle. According to the PW1, he also

saw the said 152 numbers of soap cases in the court. These two

witnesses have also deposed that the police prepared the seizure list and

they put their signatures. From the evidence, the recovery of soap cases

Page No.# 22/25

is established as deposed by PW1 and PW2. Though as per the

prosecution’s version PW1 and PW2 are the independent witnesses to the

recovery, however these two witnesses have not deposed anything about

the factum that the seized contraband were sealed on the spot by the

seizing officer immediately after it was recovered in their presence nor

they had stated that they had witnessed sealing of the recovered

contraband. PW4 is the seizing officer. Though, he had deposed that he

had recovered 150 nos. of soap boxes containing suspected heroin

wrapped with small polythene packet in soap boxes from the dickie for

the car, which were concealed in two numbers of rice bags and the

heroin was field tested by the PW3, however, he has not deposed

anything as regard the factum of sealing the alleged narcotic on the spot.

The PW3, the DSP during her examination in chief has also not

ascertained that the recovered contraband was sealed in her presence.

Though, she had deposed as regards field testing at the place of

occurrence and weighing of such contrabands and though in her cross-

examination, she deposed that the recovered heroin were packed and

sealed in a cartoon at the place of occurrence after signing of

independent witnesses including her and the cartoon was then taken to

Dillai Police Station. However, as recorded hereinabove, none of the

seizure witnesses supported such version. The I/O, i.e. PW6 had also

not deposed anything as regards sealing of the contraband. Therefore, a

serious doubt has been created as regards time and place of sealing the

alleged contraband and whether it was sealed at the spot in presence of

the independent witness and sealed at any other place that too in

presence of witnesses.

Page No.# 23/25

40. In view of the discussion made hereinabove and in the totality of

the matter, this court is of the considered opinion that there were serious

lapses and there is total non-compliance of Section 42 and 52A of the

Act, which shall vitiate the entire trial.

41. Yet another aspect of the matter is that the PW6 has deposed

that samples were kept in the Bokajan Police Station and it was sent to

the FSL by a messenger only on 12.05.2022 i.e. after two days. During

his cross-examination, he could not ascertain whether the samples were

kept in safe custody for two days in the Malkhana of the police station,

rather he deposed, in his cross examination that no register of Malkhana

was maintained and that in the same Malkhana, there were seized

materials of other cases. It is his admitted statement that the seized

drugs were not destroyed by them and seized drugs were sent to the

Court through a challan. However, such challan was also not attached

with the case record. Therefore, a doubt has been created not only as

regards the safe custody of the samples for two days at the Malkhana of

the police station but also whereabouts of the seized contraband.

Therefore, on this count also this court is having no doubt in mind to

hold that there is clear contravention of the Section 52A of the Act, which

entails the accused for acquittal.

42. Accordingly, the judgment and order dated 27.07.2023 passed

by learned Special Judge, NDPS, Karbi Anglong whereby the appellants

were convicted and sentenced to suffer rigorous imprisonment for 10

years with a fine of Rs.50,000/- for offence under section 21(c) of the

NDPS Act, 1985) and in default to undergo simple imprisonment for

another 6 months is set aside and quashed. Accordingly, appeal

Page No.# 24/25

stands allowed. The appellant shall be put at liberty forthwith if

they are not in custody in any other case. LCR be returned back.

43. A very disturbing fact emerges from the evidence of the I/O that

the I/O is not aware of whereabouts of the drugs seized. Neither it was

exhibited in trial nor could anything be brought on record as regards

destruction of such huge quantity of the alleged contraband. Though, it

is deposed by the I/O that it was sent to the court, the I/O has failed to

bring on record or to produce anything to show that it was actually sent

to the custody of the court. Order dated 10.05.2022 of the learned

Judicial Magistrate First Class, Bokajan, Karbi Anglong reveals that the

said Magistrate directed the Officer-in-Charge, Dillai police station to

make necessary prayer for disposal of the said substances before the

District Drug Disposal Committee within thirty days from receipt of the

chemical analysis report of the said substance from the Forensic Science

Laboratory and the Drug Disposal Committee shall take a decision in this

regard as per law. The trial court records or the records of Magistrate

also do not disclose anything as regards availability of same under

Court’s custody nor there is any material showing disposal of the

substance. Thus the seized contraband is neither available in the

Malkhana of the police station, nor in the court or anything on record is

available as regards any direction issued by the District Drug Disposal

Committee for disposal of the seized narcotic. The Hon’ble Apex Court in

Mangilal (supra) has dealt with the object and importance of disposal

of seized contraband, however, no satisfactory material is available

suggesting that narcotic drugs alleged to have been recovered have

already been disposed.

Order downloaded on 04-08-2025 10:06:29 PMPage No.# 25/25

44. In view of the aforesaid, this court is of the opinion that this

court cannot be a mute-spectator of such an action and accordingly, the

DGP, Assam is directed to make an enquiry as regards the status of

disposal of the alleged seized contraband and to file a report before this

court. The DGP may complete such enquiry by any of his subordinate

officer, who shall not be an officer below the rank of Superintendent of

Police. The Registrar (Vigilance) shall also obtain a report from the

learned District & Sessions Judge, Karbi Anglong as well as from the

District Drug Disposal Committee as regards disposal of the narcotic in

connection with NDPS case No. 57/2022. Such report be furnished with a

period of six weeks from today. After such report is submitted, the case

record of this appeal be again placed before this court for necessary

order if any. A copy of this order be furnished to DGP, Assam and learned

District & Session Judge, Karbi Anglong.

JUDGE

Comparing Assistant