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GAHC010282602023

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THE GAUHATI HIGH COURT

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

Case No. : CRL.A(J)/16/2024

RAJESH SARKAR

S/O-LATE SUBAL SARKAR, RESIDENT OF VILL-SOKOLANI PATHAR GAON,

P.S.-PULIBOR, DISTRICT-JORHAT, ASSAM

VERSUS

THE STATE OF ASSAM AND ANR.

REPRESENTED BY P.P., ASSAM

2:FIRDUSH AHMED

S.I.

SON OF MD. MOSTAK HUSSAIN

PULIBOR POLICE STATION

DISTRICT-JORHAT

ASSAM (INFORMANT

Advocate for the Petitioner : Mr. B. Halder

Advocate for the respondents: Mr. P. Lahkar, APP

BEFORE

HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date on which judgment is reserved: 12.02.2026

Date of pronouncement of judgment: 19.02.2026

Whether the pronouncement is of

the operative part of the judgment?: NA

Whether the full judgment has been pronounced: Yes

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JUDGMENT AND ORDER (CAV)

1. Heard Mr. B. Halder, learned counsel for the appellant and also heard Mr. P.

Lahkar, learned Addl. P.P. for the State.

2. This appeal has been preferred under Section 374 (2) of the Code of

Criminal Procedure, 1973 by the appellant, namely, Rajesh Sarkar impugning

the judgment and order dated 25.07.2023 passed by the learned Special Judge

Jorhat in Special (NDPS) Case No. 60/2021 whereby the present appellant has

been convicted under Section 20(b)(ii)(C) of the NDPS Act, 1985 and has been

sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of

Rs. 1,00,000/- and in default of payment of fine further rigorous imprisonment

for 3 months.

3. The facts giving rise to the instant case are as follows:-

On 24-06-2021, Md. Firdus Ahmed, the then S.I. (P), Pulibar Police

Station, lodged an F.I.R., stating that on the same day, at about 03:20 p.m., he

received a secret information that one Sri Rajesh Sarkar, S/o, Late Sufal Sarkar,

Resident of Sokolani Pathar Gaon, P.S. Pulibar, District-Jorhat, was selling 'ganja'

[Cannabis] since long, and now he had stocked the said illegal 'ganja' in his

residence and selling the same from his house to the nearby local people as well

as might take it to some other unknown location for delivery.

The Officer also stated that he then made G.D. Entry vide Pulibar P.S. G.D.

Entry No. 463 dated 24/06/2021, and informed the matter to his senior officials.

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Thereafter, he went to the house of aforesaid Sri Rajesh Sarkar along with the

Officer-in-charge, Pulibar P.S. and other police personnel and searched the

house of Sri Rajesh Sarkar. On search, he recovered 06 (six) packets of

suspected 'ganja' [Cannabis] weighing 40 kg & 306 grams from the possession

of Sri Rajesh Sarkar, which was duly seized in presence of local people. That, at

the time of search and seizure of those contraband, the accused Sri Rajesh

Sarkar was present in his residence but he could not give any satisfactory

explanation about the source of the seized 'ganja'. Upon competition of

investigation, the I.O. submitted the charge-sheet u/s 20 (b) (ii) (C) of NDPS

Act, 1985.

After receipt of the case record and after hearing the accused as well as

the learned Special Public Prosecutor and after going through the materials on

record, charge u/s 20 (b) (il) (C) of NDPS Act was framed against the accused

Sri Rajesh Sarkar. The charge was read over and explained to the accused and

on being asked, he refused to plead guilty and claimed to be tried. During trial,

prosecution side examined 07 (seven) witnesses. The accused was examined

u/s 313 Cr.P.C. during which he denied the truthfulness of the testimony of the

prosecution witnesses and pleaded innocence. The accused declined to adduce

any evidence in defence.

4. The learned Special Judge after the conclusion of the trial and upon

consideration of the evidence on record and after hearing the prosecution as

well as the defence proceeded to convict and sentence the accused/appellant as

aforesaid. Hence this appeal.

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5. Learned counsel appearing for the appellant submitted that this is a case

where there has been total non-compliance with the provisions of Section 42 of

the Act compliance and on that ground alone the appellant is liable to be

acquitted. Besides, there are other glaring infirmities in the prosecution case

which would be pointed out in course of the hearing.

6. Per contra, learned Addl. P.P. has submitted that there has been

substantial compliance with Section 42 and moreover the independent witnesses

have also supported the prosecution case. Having regard to the respective

submissions, it would be apposite to go through the evidence on record.

PW 1/Sri Basudev Sarkar, testified that he knows accused Sri Rajesh Sarkar

as he hails from his locality and the accused had a shoe shop in the daily bazaar

at Sokolating. PW 1 also stated that the incident occurred in the year 2021, but

he had forgotten the date and month of incident. This witness further stated

that on the date of incident, he witnessed gathering near the residence of

accused. PW 1 further deposed that he also witnessed police personnel in the

residence of accused and then the Second Officer of Pulibar Police Station asked

him to sign on a piece of paper. This witness also stated that he signed as a

witness on the seizure-lists/ Exhibit 1 & Exhibit 2. This witness was declared

hostile by the prosecution side and when cross-examined by the prosecution

side, he denied to have stated before police that "On the date of incident, police

made a search in the house of the accused and recovered 05 (five) bags of

'ganja' from his house and 01 (one) more bag of 'ganja' from his old house, in

his presence. We have noticed the said 'ganja'. Police weighed the said 'ganja'

and found 40.036 kgs of 'ganja' in the aforesaid bags. The said ganja were

separately packed, sealed with 'Lah' and he signed in the seizure-list as a

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witness". PW 1 further denied to have stated before police that "accused used

to sell'ganja' earlier also".

During his cross-examination by defence, PW1 stated that he does not

know anything about the search made in the house of the accused by police

personnel. PW 1 also admitted that he had not seen any weighing

machine/balance and further that he had not seen anything being weighed by

police in his presence.

PW-2/Sri Bubul Kurmi, has deposed that he knows the accused as the latter

belonged to his locality and on the date of incident, police recovered 'ganja'

from the house of accused and requisitioned weighing balance from him.

Further version of this witness is that police seized 40 kgs of 'ganja' from the

accused and prepared seizure-list/ Exhibit 1 wherein Exhibit 1 (2) is his

signature. PW 2 also stated that police prepared another seizure-list/Exhibit 2

of the weighing balance which was seized by him and he put his signature on

the aforesaid seizure-list as Exhibit 2 (2).

During cross-examination, PW 2 stated that the seized 'ganja' was

recovered from the shop of accused and the same was weighed inside his shop

and at that time, 10-15 people were present there but he does not know as to

who had gathered near the shop of accused at that time. PW 2 further stated

that he does not know specifically from which place inside the shop of the

accused, the 'ganja' was recovered by police. This witness admitted during

cross-examination that in Sokolani Pathar Gaon, 'wild bhang' used to grow and

local people used to cut the same and keep it in their houses and in their

locality, people used the 'wild bhang' for treatment of their cattle.

PW-3/Sri Rajen Chandra Bhuyan , has deposed that on the date of incident,

at about 2-2:30 p.m., he saw police personnel entering the shop of accused

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which is located in front of his residence and that, at that time, he was sitting

outside his residence in a chair. This witness further stated that police called him

to the house of accused where he witnessed a packet containing wild bhang

which police seized by preparing seizure- list/Exhibit 1 wherein he put his

signature as a witness as Exhibit 1 (3).

During cross-examination, PW 3 stated that he does not know what was

written in the seizure-list where he had put his signature. It is further testified

by this witness that he does not know from where the packet containing 'wild

ganja' was recovered by police and he had not witnessed what was inside the

packet as it was sealed at that time.

Evidence of PW 4/Sri Bharat Bawri is to the effect that on the date of

incident, police called him to the residence of accused and showed him some

packets which were kept outside the shop of accused and some packets were

inside the shop of accused. Thereafter, police seized the said 'ganja' by

preparing seizure-list/Exhibit 1 wherein Exhibit 1 (4) is his signature. PW 4

further stated that police also seized one weighing balance by preparing seizure-

list/Exhibit 2 wherein Exhibit 2 (3) is his signature.

During cross-examination, PW-4 by defence counsel admitted that his

statement was not recorded by the investigating officer of this case and police

did not seize the weighing balance in his presence.

PW 5/Md. Firdus Ahmed , who was the Investigating Officer stated that on

24/06/2021, while he was posted as Attached Officer, Pulibar Police Station, at

about 3:20 p.m., they received information through reliable source that the

accused Sri Rajesh Sarkar had stored 'ganja' in his house which is located at

Socklant Pathar under Pulibar Police Station. PW 5 also stated that the

information was entered in General Diary Register vide No.463 dated

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24/06/2021, and thereafter he along with police staff proceeded to the

residence of accused. PW 5 further deposed that during search operation of the

residence of accused, they found 05 (five) separate sacks containing

approximately 40 KG of 'ganja' in total inside the accused's house which was

near the front door of his residence. PW 5 also stated that the 'ganja was

weighed with the help of digital weighing machine which was procured from a

nearby shop. This witness exhibited the seizure-list of digital weighing machine

as Exhibit 2 and his signature thereon as Exhibit 2 (4). PW 5 also testified that

the 'ganja' was seized by him in presence of witnesses as well as accused by

preparing seizure-list/Exhibit 1 wherein Exhibit 1 (5) is his signature. Thereafter,

the accused and the seized 'ganja' were brought to Pulibar Police Station by him

and later on, the seized 'ganja' was handed over to the Officer-in-charge,

Pulibar Police Station. PW 5 further stated that he also prepared Sketch Map of

the place of occurrence with index which he exhibited as Exhibit 4 and his

signature thereon as Exhibit 4 (1).

In cross examination, PW 5 stated that he had not mentioned in the F.I.R.

the exact time as to when the search operation was conducted by him. PW 5

admitted that he had not prepared any separate notings regarding his entry into

the premises along with the other persons for conducting search in the

residence of accused. Further admission of this witness is that he had not

mentioned in his F.I.R. that 05 (five) separate bags of 'ganja' were recovered

from the house of the accused. PW 5 also admitted that he did not state before

the investigating officer of this case as to where from the contraband was

recovered from the house of the accused. Lastly, PW 5 admitted that he had not

mentioned in his F.I.R. that the contraband was weighed with the help of an

electronic weighing machine brought from one Sri Babul Kurmi.

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PW6 Sri Jyoti Prasad Das, another investigating officer of this case, deposed

that Md. Firdus Ahmed, S.I. of Police, lodged an F.I.R. at Pulibar Police Station

and thereafter he took up the responsibility of the investigation. PW 6 also

stated that he examined the informant Md. Firdus Ahmed and thereafter

recorded the statement of accused Sri Rajesh Sarkar. PW 6 further testified that

on 26/06/2021, he prepared the Inventory which he exhibited as Exhibit 6. This

witness also exhibited the certificate issued by the Judicial Magistrate 15t Class,

Jorhat, as Exhibit 7, certifying the correctness of the Inventory prepared by him.

This witness also exhibited the photographs of the seized contraband as Exhibit

9 to Exhibit 42. PW 6 also stated that he prepared 06 (six) number of samples

of the seized contraband which were sent to the F.S.L. Guwahati for expert's

opinion. This witness also collected the F.S.L. Report which he exhibited as

Exhibit 43 and on completion of investigation, he laid charge-sheet/Exhibit 44

against the accused Sri Rajesh Sarkar, u/s 20 (b) (ii) (C) of NDPS Act, 1985.

During cross-examination, PW 6 admitted that he had not submitted any

authorization letter u/s 42 of the NDPS Act, 1985 along with the charge-sheet;

that he was authorized by the Officer-in-charge, Pulibar P.S. to investigate the

case but the Officer-in-charge, Pulibar P.S. is not of Inspector rank; that he had

not seized the contraband recovered in this case but the same was done by the

seizing officer; that he had not weighed the seized contraband; that he had not

searched the house of accused Sri Rajesh Sarkar on the relevant day and that

he had not named Sri Gobin Chandra Bora as a witness in this case.

The evidence of PW7/Smt. Shravanee Rajkhowa , Scientific Officer, Drugs &

Narcotics Division, Directorate of Forensic Science, Kahilipara, Guwahati is to the

effect that on 27/06/2021, while she was posted as Scientific Officer, Drugs &

Narcotics Division, Directorate of Forensic Science, Kahilipara, Guwahati, she

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received a parcel from her Director-cum-Chemical Examiner to the Government

of Assam, which was received by him from the D.S.P. [Headquarter], Jorhat,

No.318/2021, u/s 20 (b) (ii) (C) of NDPS Act, 1985. PW 7 further deposed that

on examining the exhibits DN-1151/2021 (al) to DN-1151/2021 (a6) , the

same gave 'positive' tests for Cannabis [ganja]. This witness gave her

report as Exhibit 43 wherein Exhibit 43 (1) is her signature.

This witness during cross-examination stated that she had not mentioned

the procedure in examining the samples in her report; that she had not

mentioned in her report that she had followed the procedure prescribed by The

United Nation Drugs Testing Manual.

PW 1/Sri Basudev Sarkar turned hostile and was cross-examined by the

prosecution during which he denied to have stated before police about

witnessing seizure of 'Ganja' from the premises of the accused.

In cross-examination by the defence, he has expressed ignorance about the

search.

7. Section 42 of the NDPS Act provided as follows:-

“42. Power of entry, search, seizure and arrest without warrant or

authorisation.—(1) Any such officer (being an officer superior in rank to a

peon, sepoy or constable) of the departments of central excise,

narcotics, customs, revenue intellegence or any other department of the

Central Government including para-military forces or armed forces as is

empowered in this behalf by general or special order by the Central

Government, or any such officer (being an officer superior in rank to a

peon, sepoy or constable) of the revenue, drugs control. excise, police or

anv other department of a State Government as is empowered in thie

behalf by general or special order of the State Government if he has

reason to believe from personal knowledge or information given by any

person and taken down in writing that any narcotic drug, or psychotropic

substance, or controlled substance in respect of which an offence

punishable under this Act has been committed or any document or other

article which may furnish evidence of the commission of such offence or

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any illegally acquired property or any document or other article which

may furnish evidence of holding any illegally acquired property which is

liable for seizure or freezing or forfeiture under Chapter VA of this Act is

kept or concealed in any building, conveyance or enclosed place, may

between sunrise and sunset,—

(a) enter into and search any such building, conveyance or

place;

(b) in case of resistance, break open any door and remove

any obstacle to such entry ;

(c) seize such drug or substance and all materials used in

the manufacture thereof and any other article and any

animal or conveyance which he has reason to believe to be

liable to confiscation under this Act and any document or

other article which he has reason to believe may furnish

evidence of the commission of any offence punishable

under this Act or furnish evidence of holding any illegally

acquired property which is liable for seizure or freezing or

forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any

person whom he has reason to believe to have committed

any offence punishable under this Act:

"Provided that in respect of holder of a licence for manufacture of

manufactured drugs or psychotropic substances or controlled substances,

granted under this Act or any rule or order made thereunder, such power

shall be exercised by an officer not below the rank of sub-inspector:

Provided further that] if such officer has reason to believe that a search

warrant or authorisation cannot be obtained without affording

opportunity for the concealment of evidence or facility for the escape of

an offender, he may enter and search such building, conveyance or

enclosed place at any time between sunset and sunrise after recording

the grounds of his belief.

(2) Where an officer takes down any information in writing under

subsection (1) or records grounds for his belief under the proviso

thereto, he shall within seventy-two hours send a copy thereof to his

immediate official superior.]”

8. The PW 5 who was the in-charge of Salakati police outpost and the

informant of the case as well as the seizing officer stated that he had received

the information at 3.20 p.m. which was entered in the GD vide GDE number 463

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dated 24.06.2021 and thereafter, the police team proceeded to the PO.

However, during cross-examination he stated that he went to the place of

occurrence without making any GD entry. He deposed that the distance from

the police outpost to the PO is about 14 k.m. and yet he stated that after

proceeding from the outpost at 3.20 p.m., he reached the place of occurrence at

3.30 p.m. i.e., within 10 minutes.

9. Subsequently, during the course of cross-examination PW5 stated that

before going to the place of occurrence and before receiving the information at

3.20 p.m. they got information regarding this incident at about 12 noon on that

day. If that be so, there is no mention of taking down such information received

at 12 noon on that day, in writing. There is admittedly no GD entry with regard

to any information any such information received at 12 noon. Therefore, the

first condition of Sub-section 1 of Section 42 evidently has not been complied

with. Even assuming that a GD entry was made in respect of the information

said to have been received at 3.20 p.m, the said entry has not been exhibited at

the trial and therefore no evidence other than the oral testimony of the PW5 is

available to support the said contention.

Moreover, there is nothing to show that the informant had communicated such

information to his immediate Superior Officer within 72 hours. It may be noted

that although he stated that the Officer-in-Charge of Pulibar police station was

also present when they made house search of the residence of the appellant,

that does not amount to compliance with Sub-section 1 & 2 of Section 42, NDPS

Act which requires information to be taken down in writing and the said writing

be communicated to the immediate official superior within severely two hours.

Although, the PW5 I.O. had stated in his cross-examination that before

proceeding to the house of the accused/appellant the information was given to

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the Superior Officer that is Circle Inspector of Pulibar police station who

authorized them to proceed to the place of occurrence in writing, the same does

not amount to compliance with the requirement of Sub-section 1 & 2 of Section

42 NDPS Act, as no such written communication has been brought on record.

10. PW5 also stated that he was authorized for investigation. He had not

submitted any authorization letter issued under Section 41 of the NDPS Act

along with the charge-sheet. Therefore, from the evidence of the prosecution

witnesses themselves, it becomes abundantly clear that there has been total

non-compliance with the provisions of Section 42 of the NDPS Act.

11. The Hon’ble Supreme Court in the case of Karnail Singh Vs. State of

Haryana reported in (2009) 8 SCC 539 after analyzing the decisions in

Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat reported in (2000) 2

SCC 513 and Sajan Abraham Vs. State of Kerala reported in (2001) 6

SCC 692 had come to the following conclusion:-

“35. In conclusion, what is to be noticed is that Abdul Rashid' did

not require literal compliance with the requirements of Sections 42(1)

and 42(2) nor did Sajan Abraham

2

hold that the requirements of

Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the

two decisions was as follows:-

(a) The officer on receiving the information [of the nature referred

to in sub-section (1) of Section 42] from any person had to record it in

writing in the register concerned and forthwith send a copy to his

immediate official superior, before proceeding to take action in terms of

clauses (a) to (d) of Section 42(1).

(d) While total non-compliance with requirements of sub-sections (1) and

(2) of Section 42 is impermissible, delayed compliance with satisfactory

explanation about the delay will be acceptable compliance with Section

42. To illustrate, if any delay may result in the accused escaping or the

goods or evidence being destroyed or removed, not recording in writing

the information received, before initiating action, or non-sending of a

copy of such information to the official superior forthwith, may not be

treated as violation of Section 42. But if the information was received

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when the police officer was in the police station with sufficient time to

take action, and if the police officer fails to record in writing the

information received, or fails to send a copy thereof, to the official

superior, then it will be a suspicious circumstance being a clear violation

of Section 42 of the Act. Similarly, where the police officer does not

record the information at all, and does not inform the official superior at

all, then also it will be a clear violation of Section 42 of the Act. Whether

there is adequate or substantial compliance with Section 42 or not is a

question of fact to be decided in each case. The above position got

strengthened with the amendment to Section 42 by Act 9 of 2001.”

12. In Abdul Rashid (Supra) which was a case where there was total non-

compliance with the provisions of Section 42 (2), the Apex Court expressed the

view that it was imperative that the police officer should take down the

information and forthwith send a copy thereof to his immediate Superior Officer

and the action of the police officer on the basis of the unrecorded information

would become suspect, though the trial may not be vitiated on that score alone.

13. From the aforesaid two decisions, it transpires that non-compliance with

the provisions of Section 42 of the NDPS Act, may not entirely vitiate the trial,

but would compel the Court to treat the evidence regarding recovery with a

great deal of suspicion.

14. The learned trial court has also relied upon the decision in Karnail Singh

(Supra) wherein at paragraph 33 it has been held that the non-compliance

with the provision of Section 42 may not vitiation the trial if it does not cause

any prejudice to the accused, although, it was finally laid down that total non-

compliance with the provisions of the said section is not permissible.

15. The learned trial Court also relied upon another decision of the Apex Court

in the case of Koluttumottial Razak Vs. State of Kerala reported (2000) 4

SCC 465, wherein it was held that non-compliance with Section 42 of the NDPS

Act, 1985 will render a resultant search and seizure suspect and in such a

situation evidence of the police officer would be required to be corroborated by

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independent evidence.

16. The approach of the learned trial Judge cannot be faulted as in the

Constitution Bench decision of the Hon’ble Apex Court in Karnail Singh

(Supra), despite stating that non-compliance with Section 42 NDPS Act is

impermissible, it has not been stated that the consequence thereof would be

the vitiation of the trial. The Constitution Bench also did not disagree with the

finding of the Court in Abdul Rashid (Supra) wherein it was held that total

non-compliance though may not vitiate the trial would render the action of the

police suspect.

17. Therefore, it is necessary to once again to carefully examine what was

deposed to by the independent witnesses and as to whether they fully

supported the factum of recovery. The first independent witness to be examined

was P.W.1 who entirely denied having witnessed the recovery and was declared

hostile and in cross-examination on behalf of the accused, he claimed that he

did not know anything about the search and put his signature on being asked by

the police on account of trust. He did not see any weighing machine/balance or

anything being weighed in his presence. Therefore, the evidence of PW1 does

not support the prosecution case in any manner.

18. PW2 deposed that police recovered ganja from the house of the accused

and requisitioned weighing balance from him. But, he nowhere stated that he

was present when the recovery was made. Rather, during cross-examination he

stated that the ganja was recovered from the shop of the accused and also

weighed inside the shop of the accused though he had stated in his examination

in chief that the ganja was recovered from the house of the accused. He did not

know the weight of the ganja although it was on his weighing machine that the

ganja was weighed. Therefore, PW2 can hardly be regarded as a very credible

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witness especially since the very location from which the ganja was seized is not

consistently stated by the said PW.

19. PW3 who is a resident of the same locality as that of the accused stated

that at about 2.00-2.30 p.m. he saw police entering the shop of the accused

which is located in front of his house and police called him to the house of the

accused where he saw a packet containing wild bhang. But during cross-

examination he stated that he did not know from where the packet containing

the wild ganja was recovered by the police and he did not know what was

written in the seizure list where he had put his signature.

20. From the above, it is more than apparent that he did not witness any

actual seizure and more so because his version that police seized one packet of

ganja from the house of the accused is at variance with the evidence of PW5,

the Seizing Officer who deposed to have seized five packets of ganja from the

PO.

21. Next comes PW4, who deposed that on the date of the incident, police

called him to the house of the accused and showed him some packets which

were kept outside the shop of the accused and some packets were inside the

shop of the accused, whereas, the prosecution version is that the ganja was

seized from the house of the accused. The very fact that the PW4 deposed that

police showed him the ganja leads to the inference that the ganja was not

recovered in his presence but he was shown the same after the alleged

recovery. In cross-examination he stated that he did not know what was written

in the seizure list.

22. Therefore, what transpires from the above is that none of the independent

witnesses either individually or cumulatively supported the case of the

prosecution as regards recovery of the ganja from the house or shop of the

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accused. Therefore, there cannot be said to have been any independent

corroboration of the testimony of the police officers.

23. Thus situated, in view of the total non-compliance with the provisions of

Section 42 of the NDPS Act, coupled with the non-corroboration of the

testimony of the police officials by the independent witnesses as discussed

above, there is no escape from the conclusion that the prosecution failed to

establish its case beyond reasonable doubt and hence, impugned judgment and

sentence cannot be sustained. Consequently, the same is set aside.

24. The appeal stands allowed. The appellant be set at liberty forthwith.

JUDGE

Comparing Assistant