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GAHC030006282025

THE GAUHATI HIGH COURT

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

Case No. : Crl.A./27/2025

Sh. Jalal Hussain Barrbhuiya

S/o Jainul Hoque Barbhuiya

Resident of Village - Kaptanpur Pt - III, P.S. Silchar, District Cachar, Assam-788119

VERSUS

The State of Mizoram

R/b the Public Prosecutor

Advocate for the Petitioner : Mr. Taher Ahmed Choudhury

Advocate for the Respondent : P.P./Addl.PP, Mizoram

Linked Case : I.A.(Crl.)/47/2025

Sh. Jalal Hussain Barrbhuiya

S/o Jainul Hoque Barbhuiya

Resident of Village-Kaptanpur

Pt-III

P.S. Silchar

District Kachar

Assam-788119

VERSUS

The State of Mizoram

R/b Public Prosecutor

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Advocates for the appellant : Mr. Taher Ahmed Choudhury

Advocates for the respondent : Mr. Mary L Khiangte, APP

BEFORE

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

Date on which judgment is reserved : 03.02.2026

Date of pronouncement of judgment : 09.02.2026

Whether the pronouncement is of the : No.

operative part of the judgment ?

Whether the full judgment has been : Yes

pronounced?

JUDGMENT & ORDER (CAV)

(Mridul Kumar Kalita, J)

1) Heard Mr. Taher Ahmed Choudhury, learned counsel for the petitioner. Also

heard Ms. Mary L Khiangte, learned Addl. Public Prosecutor.

2) This appeal under Section 415(2) of the BNSS, 2023 has been filed by the

appellant, namely, Jalal Hussain Barbhuiya, impugning the Judgment dated

10.06.2025 and the order dated 25.06.2025 by which, the Court of learned

Judge, Fast Track Court, Kolasib, convicted the appellant under Section 21(c) of

the NDPS Act, 1985 and the appellant was sentenced to undergo rigorous

imprisonment for 10 (ten) years and to pay a fine of Rs. 1,00,000/- (One Lakh),

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in default of payment of fine to undergo further rigorous imprisonment for a

period of 6 (six) months.

3) The facts relevant for consideration of the instant appeal, in brief, are that

on 20.09.2023, one Mr. Lalengmawia, ASI, Saiphai Police Outpost, lodged an

FIR before the Officer-in-Charge of Vairengte Police Station, inter alia, alleging

that on the night of 19.09.2023 at about 10:00 p.m., one Bolero vehicle (white

in colour) bearing registration No. AS-11-E-6535, coming from the

Churachandpur, Manipur towards Silchar, was stopped at Saiphai Police Outpost.

It is further alleged in the FIR that during search of the vehicle, 42 nos. of soap

cases containing brown-coloured powder, suspected to be heroin, were

recovered from the possession of the appellant.

4) On receipt of the aforesaid FIR, Vairengte P.S Case No. 39/2023 was

registered under Section 21(c) of NDPS Act, 1985 and the investigation was

initiated. After completion of the investigation, the charge-sheet was laid, under

Section 21(c) of NDPS Act, 1985, against the present appellant, who was

arrested at the spot of recovery of the contraband and he has been detained

behind the bars since then. The appellant faced trial while remaining in custody.

5) The trial court i.e., the court of learned Judge, FTC-cum-Addl. Sessions

Judge, Kolasib, after going through the materials on record and after hearing

the learned counsel for both sides, on 13.03.2024, framed the charge against

the appellant under Section 21(c) of the NDPS Act, 1985. When the said charge

was read over and explained to the appellant, he pleaded not guilty to the same

and claimed to be tried. During the trial, the prosecution side examined 4 (four)

prosecution witnesses, including the first informant as well as the Investigating

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Officer. The appellant was examined under Section 313 of the Code of Criminal

Procedure, 1973, during which, he denied the truthfulness of the testimony of

the prosecution witnesses. However, the appellant declined to adduce any

evidence in his defence. Ultimately, by the Judgment dated 10.06.2025, the trial

court convicted and sentenced the appellant in the manner as already described

hereinabove. The aforesaid judgment has been impugned in this appeal.

6) Before considering the respective submissions of learned counsels for both

sides, let us go through the evidence of the prosecution witnesses, which is

available on record.

7) The PW-1, namely, David Lalzirliana, who is the Investigating Officer in this

case, has deposed that on 20.09.2023, at about 9:45 a.m., a written FIR was

received from ASI Lalengmawia, wherein it was stated that on the night of

19.09.2023, at about 10:00 p.m., one white-coloured Bolero vehicle bearing

registration No. AS-11-E-6535, which was coming from Churachandpur, Manipur

and proceeding towards Silchar, was detained at Saiphai Police Outpost. During

checking of the said vehicle, 42 numbers of soap cases containing brown

powder suspected to be heroin (No. 4) were recovered from the possession of

the present appellant.

8) The PW-1 has further deposed that during the investigation, he examined

the complainant and recorded the statements of the witnesses as well as the

accused person (appellant). He also deposed that the samples of suspected

heroin were drawn before the learned Judicial Magistrate First Class, Kolasib,

Smt. Lallawmkimi. He has further deposed that the samples were then

forwarded to the Forensic Science Laboratory, Aizawl, under proper escort with

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forwarding letter No. D/351/VRT-PS/2023 dated 16.10.2023. He has deposed

that the result of examination given by the Forensic Science Laboratory

indicated that Exhibit CHE(KLB)-762(1) to Exhibit CHE(KLB)-762(3) were found

to be heroin and the purity of each of the samples was found to be 79% at the

time of examination. He further submitted that Exhibit CHB(KLP)-762(4) was

also found to be heroin and the purity of the same was found to be 77% at the

time of examination. He exhibited the arrest memo, the charge-sheet, the

authorization for search and seizure index as Exhibit P-IV, Exhibit P-V, Exhibit P-

VI and Exhibit P-VII respectively.

9) During the cross-examination by the learned counsel for the defence side,

the PW-1 has deposed that the seized contraband was recovered from the

belongings of the accused, but no other belongings of the accused were seized.

He has also deposed that no vehicle was seized by him. He also deposed that

only the accused (appellant) and the driver were present in the vehicle. He has

also deposed that the contraband was seized on 19.09.2023, however, the

sample of the same was sent to the Forensic Science Laboratory on 16.10.2023

for expert opinion. He has also deposed that during this period the seized

substance was kept in the police malkhana. During his re-examination, PW-1

deposed that the weight of the seized substance was found to be 512 grams as

mentioned in the seizure memo.

10) The PW-2, namely, Lalengmawia, ASI of Saiphai Police Outpost, has

deposed that on 19.09.2023, at about 10:00 p.m., while he was on duty at

Saiphai Police Outpost, one white-coloured Bolero vehicle bearing registration

No. AS-11-E-6535, which was coming from Churachandpur, Manipur and

proceeding towards Silchar, was stopped at the Saiphai Police Outpost/check

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gate. He further deposed that they conducted a search of the said vehicle and

recovered 42 numbers of soap cases containing brown powder suspected to be

heroin (No. 4) from the possession of the accused Jalal Hussain Barbhuiya

(present appellant). He further deposed that he had seized the contraband, but

as they were not having a weighing machine at Saiphai Police Outpost, weighing

of the seized contraband was done at Vairengte Police Station on the next date.

He further deposed that the accused (appellant) was also produced before

Vairengte Police Station on 20.09.2023 and a Police Station case was registered

accordingly. He has exhibited the FIR as Exhibit P-I, the written grounds of

belief as Exhibit P-II and seizure memo as Exhibit P-III and a copy of the report

of the seizure as Exhibit P-III(A).

11) During cross-examination, the PW-2 has deposed that he is the

complainant as well as the seizing officer of the case. He further deposed that

the Investigating Officer is the arresting officer. He has also deposed that he did

not obtain a search warrant from the competent authority before conducting the

search; however, he had recorded the grounds of belief before conducting the

search. He has further deposed that the seized substance was recovered from

the vehicle. He has also deposed that the seized substance was inside the

vehicle kept in the belongings of the accused, but no other belongings of the

accused were seized. He has also deposed that the other belongings were

handed over to his relatives. He has also deposed that the present appellant

was not the owner of the vehicle and neither he was the driver of the vehicle.

He has also deposed that the driver of the said vehicle was not arrested.

12) The PW-3, Sh. Lalfakawma, has deposed that on 19.09.2023, at about

10:00 p.m., Saiphai Police had conducted a search and recovered 42 numbers of

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soap cases containing brown powder suspected to be heroin from the

possession of the accused, which were kept inside the Bolero vehicle (white-

coloured) bearing registration No. AS-11-E-6535. He has also deposed that he

was present when the search and seizure was made and also witnessed the

police weighing and checking the seized articles. He exhibited his signatures on

the seizure memo as Exhibit P-III(b).

13) During cross-examination, the PW-3 has deposed that he does not know

the registration number of the vehicle from where the contraband was

recovered. He has also deposed that he had seen the accused (present

appellant) near the vehicle and no other person was there except the accused.

He further deposed that he does not know whether the seized articles were

recovered from the luggage of the accused or not.

14) The PW-4, namely, Sh. Lalfakawma, has deposed that on 19.09.2023, at

about 10:00 p.m., Saiphai Police had conducted a search and recovered 42 soap

cases containing brown powder suspected to be heroin from the possession of

the accused, which were kept inside the Bolero vehicle bearing Registration No.

AS-11-E-6535. He has deposed that he was present when the search and

seizure was made and also saw the police weighing and packaging the seized

substance. He had exhibited his signatures on the seizure list as Exhibit P-III(c).

15) During cross-examination, he also showed his ignorance about the

registration number of the vehicle from where the seized substance was

recovered. He also deposed that he does not know whether the seized

substance was recovered from the luggage of the accused or not.

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16) The trial court also examined Mr. Lalmuanawma, the Assistant Director of

the Forensic Science Laboratory, Aizawl, as Court Witness No. 1. The said

witness has deposed that on 25.10.2023, they received a parcel consisting of

four exhibits packed in a polythene packet and enclosed in a paper envelope

sealed with wax seal from the SDPO, Vairengte, in connection with Vairengte

P.S. Case No. 39/2023 dated 20.09.2023 under Section 21(c) of the NDPS Act,

1985. He further deposed that the four exhibits contained brownish powder and

their weight ranged between 2.28 – 2.99 grams. He further deposed that he

examined all the exhibits and found them to be heroin with a purity of about

77%. He exhibited the Forensic Science Laboratory report as Exhibit C-VIII and

his digital signature as Exhibit C-VIII(a).

17) During cross-examination, the Court Witness has deposed that he

received all the four exhibits on 25.10.2023. He also deposed that the purity of

three exhibits at serial No. 1 of the Forensic Science Laboratory report is 79%

and the purity of the fourth exhibit is 77%.

18) After examination of prosecution witness, the appellant was examined

under Section 313 of the Code of Criminal Procedure, 1973. During said

examination, the appellant was asked only three questions, which are

reproduced along with the answers given by the appellant herein below: -

“Q1. :- The evidence against you is that on 19.09.2023 @ 10:00 pm, you had

possessed and transported 42 soap cases containing brown powder suspected

to be heroin weighing about 512 grams with a motor vehicle - Bolero white

colour B/R No AS 11 E 6535 from Churachanpur towards Silchar via Saiphai

Police Outpost where you had been detained: Is it true?

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Ans: No, it is not true.

Q.2. :- What do you have to say regarding the allegation made against you.

Ans: I have no knowledge about the drugs.

Q.3. :- Do you have any defence witness?

Ans: No.”

19) Mr. Taher Ahmed Choudhury, the learned counsel for the appellant has

submitted that the trial court erred in arriving at the conclusion of guilt of the

present appellant and also by sentencing him to undergo rigorous imprisonment

of 10 (ten) years. He submits that the investigation in this case was not

conducted in a fair manner, inasmuch as, the Investigating Officer has not

mentioned any reason in the charge-sheet as to why the driver of the vehicle,

from where the contraband was recovered was not made an accused. He

further submits that the Investigating Officer was also wrong in not seizing the

vehicle from where the contraband was recovered. He submits that in the

Charge Sheet as well as in the evidence of prosecution witnesses, it has not

been stated as to from which belongings of the appellant, the contraband was

recovered.

20) He submits that in the seizure list which has been prepared in this case,

the seizing officer has only seized the contraband and it has been shown to

have been seized from the possession of the appellant, without clarifying as to

from where it was seized. He submits that no other belongings of the appellant

or any other items including the vehicle have been seized in this case.

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21) He further submits that the trial court did not consider the independent

witnesses as credible, and in the impugned judgment, it has been specifically

stated by the trial court that due to the contradiction in their statement, they

are not worthy of any reliance. However, in spite of that, by relying on the

testimony of the first informant as well as the Investigating Officer, the trial

court rendered the impugned judgment of conviction. He further submits that

the trial court was also wrong in placing reliance on judgment of the Apex Court

in the case of “Kashmiri Lal vs. State of Haryana”, reported in (2013) SCC

595, inasmuch as, in the said case, no independent witnesses were examined,

however, the witnesses given by the Police was found to be reliable in that case.

Whereas, in the instant case though the independent witnesses were examined,

they were found to be unreliable by the trial court.

22) The learned counsel for the appellant has further submitted that the trial

court also erred in not considering the fact that the seizing officer did not

comply with the mandatory provisions of procedural requirement as prescribed

in Section 50 of the NDPS Act, 1985. He submits that though it was deposed by

both the Investigating Officer as well as the first informant that the contraband

was seized from the possession of the appellant. However, the appellant was

not informed about his rights guaranteed under Section 50 of the NDPS Act,

1985. Hence, he submits that the conviction of the appellant under Section

21(c) of the NDPS Act, 1985 was not justified on this ground alone. In support

of his submission, the learned counsel for the appellant has cited a ruling of the

Apex Court in the case of “Arif Khan @ Agha Khan vs. State of

Uttarakhand”, reported in (2019) 3 SCC (Crl.) 176.

23) The learned counsel for the appellant has also submitted that the

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prosecution side has not been able to prove the foundational facts required for

shifting the burden on the accused under Section 54 of the NDPS Act, 1985. He

submits that the evidence of the prosecution side could not establish as to from

where the contraband was seized. It only speaks about the fact that it was

seized from the belongings of the appellant, without specifying as to what were

those belongings. He submits that under such circumstances, the prosecution

side has failed to relieve the initial burden of establishing the foundational facts

in this case.

24) He also submits that though the Investigating Officer, while deposing as

PW-1, exhibited the written grounds of belief before conducting search and

seizure as Exbt. P-II, stating that he could not get time to obtain search warrant

from the competent authority before conducting the search. However, he

submits that the authorization for search under Section 41(2) of the NDPS Act,

1985 was issued by the Officer-In-Charge of Vairengte Police Station on

19.09.2023, whereas the FIR was lodged on 20.09.2023. He submits that

therefore in the written note prepared by the Investigating Officer under the

heading “ground of belief”, the statement made by him that “there is no time to

obtain search warrant” is not believable.

25) The learned counsel for the appellant has further submitted that in the

instant case, the examination of the appellant under Section 313 of the Code of

Criminal Procedure, 1973 was not conducted properly by the trial court. He

submits that during the said examination the trial court put only one question

wherein, entire acquisition made by the prosecution side against the appellant

was put to him without specifying as to what incriminating evidence have been

deposed by which witness against him.

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26) He further submits that the trial court also did not specify as to from

which belonging of the appellant, the seized contraband was recovered. It had

only indicated that the appellant had possessed and transported 42 soap cases

containing brown powder suspected to be heroin. He submits that the purpose

of Section 313 of the Code of Criminal Procedure, 1973 is to enable the accused

to get notice of the incriminating evidence against him so that he gets an

opportunity of properly explaining the same. However, in the instant case, same

was not done. He submits that it was incumbent on the trial court to put each

incriminating material appearing in evidence against the accused specifically,

distinctly, and separately, however, same was not done by the trial court.

27) He submits that the Apex Court in the case of “Raj Kumar @ Suman

vs. NCT of Delhi”, reported in 2023 AIR (SC) 3113 had laid down the

guidelines to be followed by trial court while recording the statement of the

accused under Section 313 of the Code of Criminal Procedure, 1973, however,

same was not followed in the instant case, which amounts to a serious

irregularity, which would vitiate trial. Hence, he submits that on this ground

alone, the appellant is entitled to be acquitted.

28) The learned counsel for the appellant further submits that the trial court

has erred in ignoring the procedural lapses committed by the Investigating

Officer which goes to the root of the case as the investigation has not revealed

specifically as to from where the contraband was recovered. He further submits

that the trial court also committed procedural lapse by not properly following

the mandate of Section 313 of Code of Criminal Procedure, 1973 causing serious

prejudice to the appellant. Accordingly, he submits that the petitioner is entitled

to get benefit of doubt and acquitted of the charge leveled against him.

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29) On the other hand, Ms. Mary L Khiangte, the learned Addl. Public

Prosecutor representing the State respondent has submitted that there is no

error in the judgment impugned in this appeal. She submits that the trial court

has rightly arrived at the finding of guilt of the present appellant and

considering the quantity of contraband involved in this case has appropriately

sentenced the appellant with rigorous imprisonment of ten years and fine of Rs.

1,00,000/- with default stipulations.

30) The learned Addl. Public Prosecutor submits that as regards the objection

raised by the learned counsel for the appellant regarding the non-compliance of

the mandate of Section 50 of the NDPS Act, 1985 is concerned, the said

provision is not applicable under the facts and circumstances of this case, as no

personal search of the appellant was conducted in this case. She submits that

the mandate of Section 50 of the NDPS Act, 1985 is applicable only when

personal search of the accused is made. However, in this case, the contraband

was recovered from the belongings of the appellant which was kept inside the

vehicle in which he was travelling. The belongings were kept inside the vehicle.

31) She further submits that though the trial court did not rely on the

testimony of independent seizure witnesses, there were sufficient material on

record for the trial court to arrive at the guilt of the appellant basing on the

testimony of the Investigating Officer as well as the first informant. She submits

that the Investigating Officer as well as the first informant, in their evidence,

have categorically stated that the seized contraband i.e., 512 grams of heroin

was recovered from the present appellant. She submits that the trial court has

correctly relied on the ratio decidendi in the case of “Kashmiri Lal vs. State

of Haryana” (supra), inasmuch as, the Apex Court has clearly laid down that

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the evidence of Police cannot be viewed with distrust every time and even in the

absence of independent witnesses, Court may arrive at conviction of the

accused if the testimonies of police witnesses are found to be reliable and

trustworthy.

32) The learned Addl. Public Prosecutor further submits that as regards

objection of not following the mandate of Section 313 of the Code of Criminal

Procedure, 1973 by the trial court is concerned, the appellant was given

sufficient notice of the incriminating materials appearing in the testimony of

prosecution witnesses in the question No. 1 posed by the trial court to the

appellant, during such examination. She submits that in the said question, the

trial court has clearly stated regarding the fact of the recovery of contraband,

from the possession of the appellant at the time when the search was made.

She further submits that the prosecution side has established the foundational

facts, in the instant case, necessary to shift the burden under Section 54 of the

NDPS Act, 1985 to the appellant. She further submits that the appellant, has

failed to adduce any defence evidence to relieve that burden. Hence, she

submits that the impugned judgment should not be interfered with by this Court

in this appeal.

33) I have considered the submissions made by the learned counsel for both

sides and have gone through the materials on record including the records of

the trial court. I have also gone through the rulings cited by learned counsel for

the appellant in support of his submissions.

34) In the instant case, only four prosecution witnesses were examined. Out

of those, only two were independent witnesses. The trial court has discarded

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their testimony as unreliable, and rightly so. Both the independent witnesses,

i.e., PW-3 and PW-4 have deposed, during their cross-examination that they

have not seen any other person apart from the appellant near the vehicle,

whereas, the informant as well the Investigating Officer have deposed that

apart from the appellant the driver was also there in the said vehicle from where

the contraband was recovered. Further, both the PW-3 & PW-4 have deposed

during cross-examination that they do not know as to whether the contraband

was recovered from the belonging of the accused (appellant) or not. As such

their testimony is of no use for the prosecution case and has been rightly

discarded by the trial court.

35) The trial court relied upon the testimony of the PW-1 & PW-2 for coming

to the finding that the seized contraband was recovered from the possession of

the present appellant and for arriving at such a conclusion has relied upon the

judgment of the Apex Court in the case of “Kashmiri Lal vs. State of

Haryana” (supra). There is no dispute over the legal proposition that the non-

examination of independent witness does not automatically lead to the

conclusion that prosecution case is vitiated and that police cannot be cited as

prosecution witnesses. It is also true that the evidence of prosecution witnesses

cannot be viewed with distrust merely because such witnesses happen to be

police personnel. However, it is equally true that whatever police witnesses

depose may not be taken as gospel truth without examining its credibility and

reliability.

36) In the instant case PW-1 is the Investigating Officer of this case, who is a

police officer. Whereas, PW-2 is the informant of this case, who is also a police

officer. Both of them have deposed, during their examination in chief, that the

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seized contraband was recovered from the possession of the present appellant.

During their cross-examination, both of them deposed that the seized

contraband was recovered from the belonging of the appellant. However, none

of them specified as to from which belonging of the appellant, the seized

contraband, which are kept in 42 numbers of soap cases, was recovered.

Whether it was a trunk, or suitcase, or briefcase, or carry pack, or a back pack

or from the body or apparel of the accused person? Nothing was clarified by any

of the above mentioned two witnesses. By merely stating that the contraband

was recovered from the possession of the accused, without clarifying as to from

where it was recovered is not sufficient to arrive at the conclusion that same

was recovered form the possession of the appellant. This is more so, when the

testimony of PW-1 & PW-2 shows that there was one more person, i.e., the

driver in the said vehicle. His testimony was of vital importance in this case. If

the said driver is not involved in the offence alleged in this case, he could have

been the best witness to testify as to from where the contraband was

recovered. However, no whisper about the role of the driver has been made

either in the Charge Sheet or in the testimony of the prosecution witnesses.

More over both the PW-1 & PW-2 had deposed that apart from the accused, one

driver was also there in the said vehicle, whereas, the PW-3 & PW-4 have not

stated anything about the driver in their deposition. As such, the testimony of

not only PW-3 & PW-4 but also of PW-1 & PW-2 becomes unreliable and

unworthy of any credence. This Court is, therefore, of the considered opinion

that the prosecution side has miserably failed to prove the factum of possession

of the contraband by the appellant. Under such circumstances the appellant is

entitled to get the benefit of doubt, which this Court, hereby gives to him. As

such on that count only the impugned judgment is liable to be set aside.

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37) In view of the discussions made in the forgoing paragraphs this Court

does not deem it necessary to discuss other contentions raised by the learned

counsel for the appellant during hearing of this appeal. However, this Court is

constrained to observe that the manner in which trial Court has recorded the

examination of the appellant under Section 313 of the Code of Criminal

Procedure, 1973 is not in conformity with the law laid down by the Apex Court

in this regard in various judgments including in the case of “Raj Kumar @

Suman vs. NCT of Delhi”, (supra). It is the duty of the trial court, during

examination of an accused under Section 313 of the Code of Criminal

Procedure, 1973, to put each material circumstance appearing in evidence

against the accused specifically, distinctively and separately to him. The material

circumstance means the circumstance or material on the basis of which the

prosecution is seeking his conviction. While putting questions to the accused,

the trial court should specify which incriminating evidence by which prosecution

witness is there on record against the accused so as to enable the accused to

explain such circumstances appearing against him in evidence. In the instant

case, the trial court has failed to do so.

38) For the discussions made and reasons stated in the forgoing paragraphs,

the impugned judgment of conviction and sentence imposed on the appellant by

the trial court is hereby set aside and the appellant is acquitted of charge under

Section 21(c) of the NDPS Act, 1985 on getting benefit of doubt.

39) This appeal is accordingly allowed.

40) The appellant shall be released forthwith, if not required to be detained in

connection with any other case.

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41) Let a copy of this judgment be sent to the trial court.

JUDGE

Comparing Assistant