Page 1 of 74

2024:GAU-AS:10132

THE GAUHATI HIGH COURT

[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]

CRIMINAL APPEAL 67/2019

Sri Binod Yadav, S/O Sri Ram Krishna Yadav, Village and P.O.

Laukaha, P.S. Supaul, Dist - Supaul, Bihar

………………Appellant

-

VERSUS

-

1. The Union of India

2. Kshetrimayum Ramesh Singh, Inspector, Customs

Division, Guwahati.

……………….Respondents

CRIMINAL APPEAL 283/2017

Sri Avneesh Kumar Rajput, S/O Ahalkar Singh, Village -

Haratpura, P.O. Jakhawa, P.S. Kurawali, Dist - Mainpuri, Uttar

Pradesh

………………Appellant

-

VERSUS

-

1. The Union of India

2. Kshetrimayum Ramesh Singh, Inspector, Customs,

Division, Guwahati.

……………….Respondents

Advocates :

Appellant : Ms. S.K. Nargis, Advocate

Respondent : Mr. S.C. Keyal, Standing Counsel, Customs

Date of Hearing : 02.08.2024

Date of Judgment & Order : 04.10.2024

GAHC010254432018

Page 1 of 74

2024:GAU-AS:10132

THE GAUHATI HIGH COURT

[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]

CRIMINAL APPEAL 67/2019

Sri Binod Yadav, S/O Sri Ram Krishna Yadav, Village and P.O.

Laukaha, P.S. Supaul, Dist - Supaul, Bihar

………………Appellant

-

VERSUS

-

1. The Union of India

2. Kshetrimayum Ramesh Singh, Inspector, Customs

Division, Guwahati.

……………….Respondents

CRIMINAL APPEAL 283/2017

Sri Avneesh Kumar Rajput, S/O Ahalkar Singh, Village -

Haratpura, P.O. Jakhawa, P.S. Kurawali, Dist - Mainpuri, Uttar

Pradesh

………………Appellant

-

VERSUS

-

1. The Union of India

2. Kshetrimayum Ramesh Singh, Inspector, Customs,

Division, Guwahati.

……………….Respondents

Advocates :

Appellant : Ms. S.K. Nargis, Advocate

Respondent : Mr. S.C. Keyal, Standing Counsel, Customs

Date of Hearing : 02.08.2024

Date of Judgment & Order : 04.10.2024

GAHC010254432018

Page 2 of 74

BEFORE

HON’BLE MR. JUSTICE MANISH CHOUDHURY

HON’BLE MR. JUSTICE MRIDUL KALITA

JUDGMENT & ORDER

[M. Choudhury, J]

A. The Assail :-

1. Both these two criminal appeals, preferred under Section 374[2], Code of Criminal

Procedure, 1973 [‘the Code’ or ‘CrPC’, for short] read with Section 36B of the

Narcotic Drugs and Psychotropic Substances Act, 1985 [‘the NDPS Act’, for short]

are directed against a Judgment and Order dated 03.10.2016 passed by the Court

of learned Sessions Judge [FTC] No. 3, Kamrup [Metro], Guwahati [hereinafter

referred to as ‘the Special Court’, for short] in NDPS Case no. 24 of 2015, which

arose out of Customs Case no. 06/CL/NARC/AS/GAU/2014-15 dated 05.12.2014.

The criminal appeal, numbered as Criminal Appeal no. 67 of 2019 is preferred by

the accused-appellant, Binod Yadav [hereinafter also referred to as ‘A-1’, at places,

for easy reference] whereas the other criminal appeal, numbered as Criminal

Appeal no. 283 of 2017 is preferred by the accused-appellant, Avneesh Kumar

Rajput [hereinafter also referred to as ‘A-2’, at places, for easy reference].

B. The verdict of the Special Court :-

2. By the Judgment and Order dated 03.10.2016, both the accused-appellants have

been convicted for the offence under Section 20[b][ii][C] of the NDPS Act, 1985

[‘the NDPS Act’, for short]. On finding the accused-appellants guilty of the offence

under Section 20[b][ii][C], NDPS Act, they have been sentenced to undergo

rigorous imprisonment for fifteen years each and to pay a fine of Rs. 1,00,000/-

each, in default of payment of fine, to undergo imprisonment for another year. It

has been observed that the period already undergone in jail by the accused-

appellants shall be set-off under Section 428, CrPC.

Page 3 of 74

C. The case of the prosecution :-

3. The case of the prosecution was stated in a Report filed by the Investigating

Officer [I.O.] of the case before the Court of learned Chief Judicial Magistrate,

Kamrup [Metro], Guwahati on 06.12.2014 in connection with Customs Case no.

06/CL/NARC/AS/GAU/2014-15 dated 05.12.2014, immediately after the alleged

seizure of 1093.68 Kgs of Cannabis [Ganja] on 05.12.2014. For ready reference,

the relevant excerpts of the said Report filed by the I.O. [P.W.8], an Inspector of

Customs at the Anti-Smuggling Unit, Customs Division, Guwahati and empowered

under Section 53 of the NPDS Act, are reproduced hereinbelow :-

1. That on 05.12.2014, acting on specific information the

officers of Anti-Smuggling Unit, Guwahati Customs Division,

Guwahati [hereinafter referred to as the said officers]

effected seizure of a 29 [twenty nine] packages containing

Ganja [Cannabis] from two closed body 6 wheeler container

truck bearing registration no. HR-65-7758 and HR-65-8403

under the provisions of the NDPS Act, 1985, after observing

all the requisite formalities. The persons mentioned above

were arrested under Section 43 the NDPS Act, 1985.

2. That on 04.12.2014 at around 22-30 hrs specific

information was received to the effect that a huge quantity

of Ganja contained in 25/30 packages would be loaded in two

white coloured closed body container trucks bearing

registration no. HR-65-7758 and HR-65-8403 at Rowta area

around midnight. It was further informed that both the

trucks are plying under the banner of SAFEXPRESS will be

loaded with tea. That after loading of the Ganja both the

trucks will proceed out of the region and are expected to

cross Baihata Chariali area. The information received is

reduced in writing and handed over to Shri D.C.Bania,

Superintendent, Anti-Smuggling Unit, Customs Division,

Guwahati for information and necessary action.

Page 4 of 74

3. Accordingly, on receipt of the information a team of

officers is formed comprising of Shri D.C. Bania,

Superintendent, Shri Rideep Hazarika, Superintendent, M.I.

Singh, Inspector, Ksh Ramesh Singh, Inspector, P.K.Deka,

Inspector, Shri Hara Ratan Singh, Shri N. Mondal, Sepoy and

Shri Rajen Sharma, H/Havilder. Thereafter the team led by

Shri D.C. Bania, Superintendent proceeded to Baihata area

and laid naka at suitable place on the NH-31 from around 01-

00 hrs on 05.12.2014. Before laying naka the officers

approached several persons and told them about the

information and requested them to be witnesses to the whole

operation. But all of them refused and left the area without

disclosing their name or address. Thereafter, the officers

continued keeping surveillance and in course of the

surveillance at around 02-00 hrs saw two white coloured 6-

wheeler close body container trucks coming from Baihata

Chariali side. On close observation found the registration

number of the first truck HR-65-8403 and the registration

number of the other truck following this truck to be HR-65-

7758. As the description and the registration number of the

both the closed body container trucks matched with the

information received, the officers signalled both the trucks

to stop.

4. On being signalled to stop the truck bearing

registration no. HR-65-7758 immediately stopped but the

other truck bearing registration no. HR-65-8403 slowed down

and stopped at a distance from the naka party and before the

Customs Officers could approach the truck no. HR-65-8403

both the driver and the assistant left the truck and fled

away under the cover of fog and darkness. Although the

Officers tried to nab them they failed because of heavy dew

and darkness. The Officers then approached the driver of the

truck HR-65-7758 and after introducing themselves inquired

with him regarding the goods loaded in the truck and his

destination. On being inquired the driver introduced himself

as Shri Binod Yadav and told the Officers that both the

trucks are transporting a consignment of packaged tea. At

Page 5 of 74

the time of interception the assistant of the truck was also

present in the truck and on inquiry he introduced himself as

Shri Avneesh Kumar Rajput. The Officers then informed Shri

Binod Yadav, the driver of the truck HR-65-7758 that they

have specific information that both the container trucks are

transporting a huge quantity of Ganja concealed under the

load of the packages containing tea. As such the Officers

informed them that they would take both the trucks to the

Customs Office, Guwahati for detailed checking and requested

Shri Binod Yadav to place the truck at the Customs Office

located at Nilamoni Phukan Path, Christian Basti, Guwahati.

Accordingly Shri Binod Yadav agreed and accompanied the

Customs Officers to the Customs Office. The other container

truck bearing no. HR-65-8403, the driver and khalasi of

which managed to run away was also brought to the Customs

Divisional Office, driven by Shri Har Ratan Singh, driver,

Customs Division, Guwahati.

5. At the Customs Division Office on being asked Shri Binod

Yadav, driver of the truck HR-65-7758 and Shri Avneesh Kumar

Rajput, helper of the truck opened the locked rear door of

the container of both the trucks with the help of a spanner

and on opening both the trucks were found to be loaded with

packages containing packaged tea of TATA brand. Thereafter,

the packages containing the packaged tea were removed from

the rear of both the trucks with the help of labourer in

presence of Shri Binod Yadav and Shri Avneesh Kumar Rajput,

driver and helper of the truck HR-65-7758 respectively and

in presence of two independent witnesses. After a portion of

the packages containing tea were removed from the rear,

several rectangular shaped HDPE packages could be found

concealed under the consignment of tea packages. The

Officers then removed one such package from the truck

bearing no. HR-65-7758 and examined the contents of the

package in presence of Shri Binod Yadav and Shri Avneesh

Kumar Rajput, driver and helper of the truck HR-65-7758

respectively and in presence of the witnesses and on

examination at 04-00 hours the package was found to contain

Page 6 of 74

Ganja in compressed form. Thereafter all the rectangular

shaped HDPE packages numbering 17 [seventeen] were unloaded

from the truck HR-65-7758. Similarly several rectangular

HDPE packages were recovered from the truck no. HR-65-8403.

All the HDPE packages numbering 12 [twelve] recovered from

the other container truck were then examined in presence of

Shri Binod Yadav and Shri Avneesh Kumar Rajput, driver and

helper of the truck HR-65-7758 respectively and in presence

of the witnesses and all the packages were found to contain

Ganja in compressed form. Thereafter the remaining tea

packages were unloaded from both the trucks in presence of

Shri Binod Yadav and Shri Avneesh Kumar Rajput, driver and

helper of the truck HR-65-7758 respectively and in presence

of the witnesses. The recovered 29 [twenty nine] packages

were then weighed in the electronic weighing scale allotted

to the Anti-Smuggling Unit, Customs Division, Guwahati in

presence of Shri Binod Yadav and Shri Avneesh Kumar Rajput,

driver and helper of the truck HR- 65-7758 respectively and

in presence of the witnesses and the weight of each packet

containing Ganja was recorded in a separate sheet truck wise

in presence of Shri Binod Kumar and Shri Avneesh Kumar

Rajput, driver and helper of the truck HR-65-7758

respectively and in presence of the witnesses. The net

weight of Ganja was ascertained at 1093.68 kgs. The

recovered quantity of Ganja was then seized at 12-30 hours

under the provisions of the NDPS Act, 1985. The consignment

of packages containing tea packages recovered from the two

container trucks used for concealing the seized quantity of

Ganja was also seized under the provisions of the NDPS Act,

1985. Both the carrier container trucks HR-65-8403 and HR-

65-7758 used for transportation of the consignment of

contraband Ganja were also seized along with the documents

related to the truck and the driver and cash recovered from

the truck as per the provisions of the NDPS Act, 1985. On

being inquired both Shri Binod Yadav and Shri Avneesh Kumar

Rajput handed over their respective mobile handsets which

were also seized under the provisions of the NDPS Act. All

the seized articles were then listed in an Inventory of

Page 7 of 74

goods seized in presence of Shri Binod Yadav and Shri

Avneesh Kumar Rajput, driver and helper of the truck HR-65-

7758 respectively and in presence of the witnesses. In this

connection a case was registered vide Narcotics Case

nо.06/CL/NARC/AS/GAU/2014-15 dated 05.12.2014 and the

cumulative value of the seized goods were estimated at Rs

1,22,99,221/-

6. A copy of the Inventory along with Annexure is handed

over to Shri Binod Yadav, driver of the truck bearing

registration no. HR-65-7758.

[Information reduced into writing enclosed Inventory of

goods seized dated 05.12.2014 along with Annexure enclosed]

7. Samples in duplicate each weighing 30 gms were drawn

from each of the 29 packets containing Ganja and sealed in

presence of Shri Binod Yadav and Shri Avneesh Kumar Rajput,

driver and helper of the truck HR-65-7758 respectively and

in presence of the witnesses for chemical testing by Govt.

Laboratories. Both Shri Binod Yadav and Shri Avneesh Kumar

Rajput, driver and helper of the truck HR-65-7758

respectively, the two witnesses and the Seizing Officer had

put their dated signature on each packet containing the

sample drawn.

8. After completion of the seizure formalities including

drawal of sample which concluded at around 12-30 hrs on

05.12.2014 all the 29 packages were labeled and then sealed

in presence of Shri Binod Yadav and Shri Avneesh Kumar

Rajput, driver and helper of the truck HR-65-7758

respectively and in presence of the witnesses.

9. The seized articles were deposited with the Divisional

godown vide GR no. 12/14-15[NARC] dated 05.12.2014.

10. That examination of the accused persons reveals that

both, Shri Binod Yadav, driver of the 6 wheeler closed body

container truck bearing registration no. HR-65-7758 and Shri

Page 8 of 74

Avneesh Kumar Rajput, the assistant of the said truck are

directly / consciously involved in the illicit trafficking

of a huge quantity of Ganja [Cannabis] and that in

contravention of the provisions of Section 8[c] of the NDPS

Act 1985 and have thus committed an offence punishable under

Section 20 r/w Section 22 and 29 of the NDPS Act 1985. Hence

both the accused persons were arrested on 05.12.2014 under

Section 43 of the NDPS Act 1985 and the grounds of arrest

were communicated to them.

[Arrest memo dated 05.12.2014 enclosed]

11. That the offence so committed involves illicit

trafficking of a huge commercial quantity of narcotics drugs

and is therefore a non-bailable and cognisable offence

within the meaning of Section 37 of NDPS Act 1985 as

amended.

12. That the medical examination of the accused person was

done on 06.12.2014

13. That on preliminary enquiry it appears that a huge

racket is involved and some more persons are likely to be

arrested in the case. It is therefore prayed that as the two

accused persons have committed an offence involving illicit

trafficking of a huge commercial quantity of Ganja which is

cognizable in nature within the meaning of Section 37 [1]

[a] & [b] of the NDPS Act, 1985 as such the accused persons

may not be enlarged on bail.

14. The documents including the seizure list prepared, the

seized articles and the samples drawn may kindly be seen.

D. The Investigation :-

4. One Ksh. Ramesh Singh, Inspector, Customs Division, Guwahati was appointed as

the Investigating Officer [I.O.] of the case, Customs Case no.

06/CL/NARC/AS/GAU/2014-15 by an Order dated 05.12.2014. Finding the two

Page 9 of 74

accused persons, A-1 and A-2 being directly and consciously involved in illicit

trafficking of Cannabis [Ganja] as the driver and khalasi respectively of the

container truck bearing registration no. HR-65/7758 [also referred to hereinafter

as ‘the subject-vehicle’, at places, for easy reference], they were arrested under

Section 42[1][d] read with Section 43[b] of the NDPS Act, on 05.12.2014.

According to the Investigating Agency, they were arrested on the reasonable belief

that they had committed an offence punishable under Section 20 of Chapter IV of

the NDPS Act, by involving themselves in carriage, concealment and transportation

of commercial quantity of Cannabis [Ganja]. Both the accused persons after their

arrest, were produced before the Court of learned Chief Judicial Magistrate,

Kamrup [M], Guwahati on 06.12.2014 along with all the seized goods and samples

drawn and the said learned Court after seeing the seized goods, the inventory and

samples drawn, remanded both the accused persons, A-1 and A-2 to judicial

custody.

5. The samples drawn were thereafter, forwarded to the Director-cum-Chemical

Examiner, Forensic Science Laboratory [FSL], Directorate of Forensic Science

[DFS], Assam, Guwahati vide an Office Letter dated 08.12.2014 for chemical

examination. The Deputy Director, Drugs and Narcotics Division, Directorate of

Forensic Science [DFS], Assam after chemical examination submitted a report vide

Report no. DFS.1199/2014/2257/DN-421/2014 dated 12.12.2014 recording a

finding that the exhibits, that is, the samples gave positive test for Cannabis

[Ganja] and the said Report dated 12.12.2014 was forwarded by the Director-cum-

Chemical Examiner, DFS, Assam vide an Office Letter dated 23.12.2014.

6. It is the further case of the prosecution that a report of arrest and seizure was

submitted to the higher authority, that is, the Commissioner of Customs, North

Eastern Region, Shillong and other higher authorities in compliance of the

provision of Section 57 of the NDPS Act, 1985. A cash amount of Rs. 6,165/- which

was recovered from the subject-vehicle, was deposited into the Divisional Godown

on 08.12.2014.

Page 10 of 74

7. During the course of investigation, one Shishpal Sharma, Head – Tea Business,

M/s Transolution Private Ltd., Guwahati had appeared before the Superintendent

of Customs on 09.12.2014 in response to a Summons dated 09.12.2014 and

Shishpal Sharma submitted an application of even date praying for release of Tata

Tea packages seized along with the Cannabis [Ganja] supported by consignment

notes, stock transfer advice, carriage agreement, etc. A petition for zimma was

also preferred by Shishpal Sharma as the Authorised Representative of M/s

Transolution Private Ltd. before the learned Special Court for taking custody of 745

nos. of packages containing Tata Tea. The learned Special Court vide an Order

dated 15.12.2014 was pleased to allow interim custody of those seized goods on

furnishing of an indemnity bond of Rs. 5,00,000/-. On submission of an indemnity

bond for Rs. 5,00,000/- on behalf of M/s Transolution Private Ltd. on 16.12.2014,

those 745 nos. of packages of Tata Tea so seized, were released in favour of M/s

Transolution Private Ltd.

8. In response to a Summons dated 09.12.2014, the Operation Manager, M/s Safe

Express Private Ltd., Guwahati viz. Arbind Kishor appeared before the

Superintendent of Customs on 10.12.2014 and produced copies of the

consignment notes for Tata Tea in respect of the two container trucks bearing

registration nos. HR-65/7758 and HR-65/8403 and the copies of the driving

licences of the drivers of the said two trucks. It was revealed that both the trucks

were supplied to M/s Safe Express Private Ltd. by the owner, M/s Mor Motors,

Kurukshetra, Haryana after execution of a contract agreement and Shishpal

Sharma was the owner of M/s Mor Motors. Thereafter on 12.12.2014, a

representative of M/s Mor Motors submitted the registration papers of the two

trucks. The antecedents of the two accused persons, A-1 and A-2 along with other

persons suspected to be involved in the alleged offence, were verified. After

verification, it was revealed that the two trucks belonged to M/s Mor Motors,

Kurukshetra, Haryana.

9. Statements of a number of persons were recorded under Section 67, NDPS Act.

The I.O. also collected Call Detail Records [CDRs] of the accused persons, A-1 and

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A-2 to find out about the persons with whom the accused persons were in regular

contact.

10. A zimma petition was preferred before the learned Special Court on behalf of M/s

Mor Motors for taking interim custody of the two trucks bearing registration nos.

HR-65/7758 and HR-65/8403 and the learned Special Court vide an Order dated

09.01.2015, allowed interim custody of the two trucks on furnishing an indemnity

bond of Rs. 5,00,000/- for each truck. On submission of two indemnity bonds of

Rs. 5,00,000/- each on 09.01.2015, both the trucks were released on interim

custody to M/s Mor Motors.

E. The Complaint :-

11. After completion of investigation into the case, Customs Case no.

06/CL/NARC/AS/GAU/2014-15, a Complaint under Section 36A[1][d], NDPS Act

1985 came to be submitted before the learned Special Court, Kamrup [M],

Guwahati on 02.06.2015 inter alia with a prayer to take cognizance of the offences

under Section 8, Section 20[b][ii][C] and Section 29 of the NDPS Act against the

two accused persons, A-1 and A-2 and to punish them thereunder, apart from

confiscating 1093.684 Kgs of Cannabis [Ganja]. In Schedule-A to the Complaint, a

list of witnesses was appended.

F. The Charge :-

12. On receipt of the Complaint under Section 36A[1][d], NDPS Act, the Special Court

registered the same as NDPS Case no. 24 of 2015. On appearance of the two

accused persons, A-1 and A-2 before it and after hearing the learned Standing

Counsel, Customs and the learned defence counsel, the learned Special Court had,

on 24.08.2015, framed the following charge against the accused persons, A-1 and

A-2 :-

That on or about 05.12.2014 at about 22.30 hours

Customs Division, Guwahati apprehended both of you

while you were transporting huge quantity of Ganja in

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vehicle no. HR-65/7758 and that you thereby committed

an offence punishable under Section 20[b][ii][C] of

NDPS Act within my cognizance.

When the charge was read over and explained to the accused persons, they

pleaded not guilty and claimed to be tried.

G. The Trial :-

13. During the course of the trial, the prosecution side examined the following

prosecution witnesses to bring home the charge against the two accused persons,

A-1 and A-2 : -

P.W.s Name Designation/Status

P.W.1 Ridip Hazarika Inspector of Customs

P.W.2 Gajendra Nath Deka Deputy Director, FSL

P.W.3 Dr. Satyen Roy Superintendent of Customs

P.W.4 Dwipen Chandra Bania Superintendent of Customs

P.W.5 Punya Kumar Deka Inspector of Customs; Seizing & Arresting Officer

P.W.6 Shiv Sankar Basumatary Inspector of Customs

P.W.7 Suraj Thapa Seizure Witness

P.W.8 Ksh. Ramesh Singh Inspector of Customs & Investigating Officer

Apart from the oral testimony of the afore-mentioned prosecution witnesses, the

prosecution side also exhibited fourteen nos. of documents and thirty nos. of

material objects as exhibits during the trial and the same would be referred to in

the later part of the Judgment.

14. After closure of evidence from the prosecution side, both the accused persons, A-1

and A-2 were examined under Section 313, CrPC and they were thereby, provided

with the opportunity to explain the circumstances appearing in the prosecution

evidence against them. During such examination, the accused persons took the

plea of denial stating that the case of the prosecution was false. When the accused

Page 13 of 74

persons, A-1 and A-2 were asked as to whether they would like to tender any

evidence in their support, both of them declined to adduce any defence evidence.

15. After hearing the learned Standing Counsel, Customs and the learned defence

counsel; and upon evaluation of the evidence/materials on record, the learned

Special Court has proceeded to deliver the Judgment on 03.10.2016 holding that

the prosecution had been able to prove its case against the two accused persons,

A-1 and A-2 beyond all reasonable doubt. The two accused persons, A-1 and A-2

have accordingly, been convicted for the offence under Section 20[b][ii[[C]

[incorrectly mentioned as Section 20[C]] of the NDPS Act. After hearing the two

accused persons under Section 235[2], CrPC on the point of sentence, they have

been sentenced in the manner, mentioned above.

16. Aggrieved by and dissatisfied with the Judgment and Order of conviction and

sentence passed by the learned Special Court, the present two criminal appeals

have been preferred.

17. We have heard Ms. S.K. Nargis, learned counsel for both the appellants and Mr.

S.C. Keyal, learned Standing Counsel, Customs for the respondents.

H. Submissions of the accused-appellants :-

18. Ms. Nargis, learned counsel for the accused-appellants has advanced submissions

in the following manner :-

I. If the Officer mentioned under Section 42[1] of the NDPS Act takes down any

information in writing under sub-section [1] of Section 42 or records grounds for

his belief under the proviso thereto, he is required to send a copy thereof to his

immediate official superior within seventy-two hours. In the case in hand, P.W.1

who took down the information in writing, did not comply with the said procedure

of sending the information to his immediate official superior. P.W.1 had only

informed about the information taken down in writing as regards transportation of

the contraband substance, Cannabis [Ganja] vide Ext.-1, to P.W.4 on 04.12.2014.

Page 14 of 74

Learned counsel for the accused-appellants has contended that P.W.4 could not be

regarded as the immediate official superior of P.W.1 as, on the relevant date –

04.12.2014, both P.W.1 and P.W.4 were holding equal rank of Superintendent.

With such contention, it has been projected that there was non-compliance of the

statutory prescription contained in Section 42 read with Section 43 of the Evidence

Act.

II. It has been contended that after search, recovery and seizure of the alleged

contraband substance, Cannabis [Ganja] and arrest of the two accused persons, A-

1 and A-2, no full report containing the details on the aforesaid aspects was sent

within the period of forty-eight hours, as mandated by Section 57 of the NDPS Act.

It has been contended that such non-compliance of the procedure has the effect

of vitiating the entire process of search, recovery, seizure and arrest and

consequently, the trial.

III. By referring to the procedure laid down in Section 52A, more particularly, sub-

section [2] thereof, learned counsel for the accused-appellants has contended that

there were clear violations by the respondent Customs authorities in matters of

getting the Inventory certified and drawing samples from the allegedly seized

packets containing Cannabis [Ganja] from the subject-vehicle, that is, the truck

bearing registration no. HR-65/7758 wherein the two accused persons, A-1 and A-

2 were the occupants. It has been contended that no photographs of the packets

allegedly containing Cannabis [Ganja] were taken in presence of a Magistrate and

as a result, there was no certification by the Magistrate. During the trial, the

prosecution side did not exhibit the remnants of the sample which were received

back from the DFS/FSL after chemical examination, in a proper manner. In such

view of the matter, no evidentiary value can be attached to the Chemical

Examination Report [Ext.-3] given by the FSL/DFS.

IV. Learned counsel for the accused-appellants has contended that there was defect in

the charge framed against the accused persons, A-1 and A-2 as there was no

mention about the specific quantity of the contraband substance therein. It has

been contended that different nos. of packets allegedly containing contraband

Page 15 of 74

substance, Cannabis [Ganja] were seized from two trucks bearing registration no.

HR-65/7758 and HR-65/8403. As the charge framed was a defective one, the trial,

as a result, stood vitiated.

V. In support of the above submissions, the decisions referred to are : [i] Noor Aga

vs. State of Punjab and another, [2008] 16 SCC 417 ; [ii] Union of India vs.

Mohanlal and another, [2016] 3 SCC 379 ; [iii] Yusuf @ Asif vs. State, 2023

INSC 912; [iv] Bothilal vs. Intelligence Officer, Narcotics Control Bureau,

2023 SCC OnLine SC 498; [v] Mangilal vs. State of Uttar Pradesh, 2023 INSC

634 : [2023] 10 SCR 517; [vi] Simarnjit Singh vs. State of Punjab, 2023 SCC

OnLine SC 906 : 2023 LiveLaw [SC] 570 ; and [vii] Mohammed Khalid and

another vs. the State of Telangana, 2024 INSC 158 : [2024] 5 SCC 393.

VI. By canvassing as above, learned counsel for the accused-appellants has contended

that the impugned Judgment and Order of conviction and sentence passed against

the accused-appellants, A-1 and A-2 is not sustainable in law and the same is,

therefore, is liable to be set aside and the accused-appellants are liable to be

acquitted.

I. Submissions of the respondents :-

19. Au contraire, Mr. Keyal, learned Standing Counsel, Customs Department has

supported the impugned Judgment and Order of the learned Special Court with the

following submissions :-

I. There was no violation of the provisions contained in Section 42 and Section 43 of

the NDPS Act with regard to sending of a copy of the information taken down in

writing by P.W.1 as P.W.4 was the immediate official superior of P.W.1, the Officer

who had taken down the information in writing. Though during the interregnum,

P.W.1 had been promoted to the rank of Superintendent, yet, P.W.4 had to be

taken as the immediate official superior of P.W.1 and the evidence/materials on

records had amply demonstrated such fact. With such projection, it has been

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contended that the argument of the learned counsel for the accused-appellants on

that court is misplaced and baseless.

II. With regard to the provision contained in Section 57 of the NDPS Act, it has been

submitted that it is not mandatory to send such report within the time-limit

mentioned therein. There has to be substantial compliance. In the present case,

there was compliance of the directory provision as a Report, exhibited as Ext.-9,

was duly submitted and the same is evident from the testimony of the prosecution

witnesses.

III. During the trial, all the 29 nos. of packets involving entire quantity of the seized

contraband substance, Cannabis [Ganja] were exhibited and marked as material

exhibits. An Inventory was also prepared and presented before the jurisdictional

Magistrate at the earliest point of time and the Inventory was also seen by the

Magistrate. It is the contention that there was clear instruction regarding drawal of

samples in Clause 2.1 and Clause 2.2 in the Standing Order no. 1/89 dated

13.06.1989 and the said Standing Order was issued in exercise of the powers

conferred by Section 52A of the NDPS Act. In the case in hand, samples were

drawn in conformity with the procedure laid down in the Standing Order no. 1/89

and as such, there was no illegality in the matter of procedure of drawal of

samples. If Paragraph 31.1 of the decision in Mohanlal [supra] is read in proper

perspective, it is discernible that no exception can be taken if the samples were

drawn from the seized contraband substance at the place of search and seizure,

considering the date of such search and seizure, which was before the decision in

Mohanlal [supra] was rendered. It has, thus, been submitted that the decision in

Mohanlal [supra] should be considered to have only prospective effect in the light

of the doctrine of prospective overruling in so far as the manner of drawing of

samples from seized contraband is concerned. It has been submitted that Rule 29

of the Narcotic Drugs and Psychotropic Substances [Seizure, Storage,

Sampling and Disposal] Rules, 2022 [‘the 2022 Rules’, for short] has clarified

the position as regards prospectivity. It has been canvassed that the Standing

Order no. 1/89 was repealed only by the 2022 Rules. Until the Standing Order no.

1/89 was repealed it was in force. Therefore, no objection can be taken to the

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manner of drawing samples from seized contraband at the spot/place of search,

recovery and seizure.

IV. With regard to the charge framed against the two accused persons, A-1 and A-2 is

concerned, it has been submitted that though admittedly, there was no mention

about the specific quantity of contraband substance therein but there was clear

mention of the subject-vehicle, HR-65/7758 and the offence under Section

20[b][ii][C] of the NDPS Act which was clearly indicative of the fact that the

accused persons were charged for commercial quantity of Cannabis [Ganja]

transported by the subject-vehicle. As apparently no prejudice was caused and no

such plea was raised during the trial on that issue, such an issue cannot be

agitated at the appellate stage.

V. To buttress the contentions advanced on behalf of the respondent Customs

Department, the decisions in [i] State of Punjab vs. Balbir Singh, [1994] 3

SCC 299]; [ii] Sajan Abraham vs. State of Kerala, [2001] 6 SCC 692 ; [iii]

Karnail Singh vs. State of Haryana, [2009] 8 SCC 539 ; [iv] Bahadur Singh

vs. State of Haryana, [2010] 4 SCR 402 ; [v] Union of India vs. Mohanlal

and another, [2016] 3 SCC 379; and [vi] Darshan Singh vs. State of Haryana,

[2016] 14 SCC 358; have been referred to.

J. Reply submissions of the accused-appellants :-

20. In reply submissions, it has been contended that sub-section [1] of Section 52A of

the NDPS Act has made provision for seizure and disposal of the seized contraband

substance. From sub-section [2] of Section 52A, it is ex-facie apparent that after

seizure of any contraband substance, the procedure laid down therein is to be

followed mandatorily. It is only after certification as regards the correctness of the

Inventory, taking of photographs in the presence of Magistrate and certifying such

photographs as proof and drawal of samples before the Magistrate and their

certification, the seized contraband substance can be disposed of. The Standing

Order no. 1/89 cannot have effect on these aspects. It has, thus, been contended

that even if the Standing Order no. 1/89 had mentioned about the manner of

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drawing samples, the Central Government could not have done so in view of

presence of sub-section [2] in Section 52A in the NDPS Act. As the 2022 Rules

have been framed under Section 52A of the NDPS Act, the 2022 Rules cannot

overwrite the statutory prescription contained in Section 52A[2] of the NDPS Act.

Thus, the Rules, 2022 can only have the effect of repealing the Standing Order no.

1/89 and cannot supplant Section 52A[2] of the NDPS Act. The Judgment in

Mohanlal [supra] did not overrule any precedent and as such, there cannot be any

question of prospectivity.

21. We have duly considered the submissions advanced by the learned counsel for the

parties and have also gone through the evidence/materials on record including the

testimonies of the prosecution witnesses and the documentary evidence, available

in the case records of NDPS Case no. 24 of 2015. We have also considered the

decisions referred to by the learned counsel for the parties in support of their

respective submissions.

K. The Prosecution Evidence :-

22. At the inception, the testimony of the prosecution witnesses, 8 [eight] in nos., can

be referred to.

23. P.W.1, Ridip Hazarika stated that on 04.12.2014, he was working as Inspector in

Anti-Smuggling Unit at the Customs Division, Guwahati. In his evidence-in-chief,

P.W.1 deposed that on 04.12.2014, he received a secret information regarding

transportation of Ganja in two nos. of closed body container trucks bearing

registration nos. HR-65/8403 and HR-65/7758. As per the secret information so

received, both the trucks were loaded with packages of tea and Ganjas were

loaded somewhere at Rowta area. Both the trucks were of white colour and were

operating under the banner of ‘SAFE EXPRESS’. The information was also to the

effect that the trucks were expected to cross Baihata Chariali area around 02-

00/02-30 a.m. on 05.12.2014. P.W.1 stated that on receiving the information, he

reduced the information into writing and informed his immediate superior officer,

D.C. Bania [P.W.4], Superintendant of their Unit and handed over the text of the

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information to him. D.C. Bania [P.W.4] then directed him [P.W.1] to form a team

and to take necessary steps. P.W.1 exhibited the information which he reduced

into writing as Ext.-1 with his signature and the signature of D.C. Bania [P.W.4]

therein as Ext.-1[1] and Ext.1[2] respectively. P.W.1 further stated that he formed

a team comprising [i] himself [P.W.1]; [ii] D.C. Bania [P.W.4]; [iii] P.K. Deka

[P.W.5]; [iv] Ramesh Singh [P.W.8]; and [v] M.I. Singh wherein, except D.C. Bania

[P.W.4], all others were Inspectors of Custom. In the team, one Hawildar and one

Driver were also included. The team left the Office at 11-30 p.m. on 04.12.2014 by

a departmental vehicle and reached Baihata Chariali at around 12-30 a.m. After

reaching Baihata Chariali, the team put naka on Rangia side on the National

Highway no. 31. It was at around 02-00 a.m. on 05.12.2014, the team saw two

trucks, matching with their information, coming from Mangaldai side. When the

team signaled both the trucks to stop, the truck bearing registration no. HR-

65/7758 stopped near the naka party. However, the other truck bearing no. HR-

65/8403 stopped at a distance from the naka party. The team when approached

towards the said truck, the driver and the helper of the truck bearing HR-65/8403

fled away from the spot. When the driver and the helper of the other truck bearing

registration no. HR-65/7758 were approached and enquired by the team, the

driver introduced himself as Binod Yadav [the appellant, A-1 in Criminal Appeal no.

67/2019] and the helper introduced himself as Avneesh Kumar Rajput [the

appellant, A-2 in Criminal Appeal no. 283/2017]. They told the team members that

the trucks were loaded with tea packages. P.W.1 further deposed that then the

team introduced themselves to the driver and the helper of the truck bearing

registration no. HR-65/7758 and told them about receipt of the information that

both the trucks were loaded with Ganja. P.W.1 stated that he asked the driver,

Binod Yadav [A-1] to place the truck at the Customs Office located at Nilamoni

Phukan Path, Christian Basti, Guwahati and the driver accordingly agreed and

brought the truck to the Customs Office. The other truck, by driving it through a

departmental driver - Har Ratan Singh, was also brought to the Customs Office at

Guwahati. The trucks and the team reached the Customs Office at around 04-00

a.m. on 05.12.2014. At the Customs Office, when the trucks were checked,

packages of TATA Tea were found loaded. When the tea packages were unloaded,

several HDPE [High Density Polyethylene] packages, concealed among the tea

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packages, were found. When the contents of the HDPE packages were checked in

presence of the driver [A-1], the helper [A-2] and the witnesses, the team found

Ganja in compressed form. 17 [seventeen] nos. of similar HDPE packages were

recovered from the truck bearing registration no. HR-65/7758 [the subject-vehicle]

and 12 [twelve] nos. of similar packages were recovered from the truck bearing

registration no. HR-65/8403. Each of the packages containing Ganja was weighed

by the team in the departmental electronic weighing machine in presence of the

driver [A-1], the helper [A-2] and the witnesses and the weight of each package

was noted in a Weighment Sheet. P.W.1 stated that the net total weight of the

recovered Ganja was 1093.68 kgs and the same were seized by P.K. Deka,

Inspector of Customs [P.W.5] along with the tea packages, the documents of the

trucks and the two trucks, besides an amount of Rs. 6,165/- and two mobile

handsets of the driver [A-1] and the helper [A-2]. P.W.1 deposed that all the

seized articles were then listed in an Inventory as per the provisions of Section 42,

Section 43 and Section 49 of NDPS Act in presence of the driver [A-1], the helper

[A-2] and the witnesses. P.W.1 exhibited the Inventory dated 05.12.2014 as Ext.-2

and his signature therein as Ext.-2[1]. P.W.1 stated that the investigation of the

case was conducted by Ksh. Ramesh Singh [P.W.8], Inspector of Customs. P.W.1

identified the accused persons present before the court on the date of his

testimony as the persons whom the team apprehended with the truck bearing

registration no. HR-65/7758.

23.1. During cross-examination, P.W.1 stated that D.C. Bania [P.W.5], Superintendent of

Customs was the then Empowered Officer whereas Ksh. Ramesh Singh [P.W.8],

Inspector of Customs was the complainant of the case. It was P.K. Deka [P.W.4],

Inspector of Customs who acted as the Seizing Officer [S.O.] & Arresting Officer.

P.W.1 stated that Ext.-1 was prepared by him and he signed it as the

Superintendent of Customs, as by that time, he was promoted as Superintendent.

P.W.1 reiterated that the signature exhibited as Ext.-1[2] was the signature of D.C.

Bania [P.W.5], Superintendent of Customs. P.W.1 further stated that though he

did not read the complaint, but he knew its contents wherein he was referred to as

the Inspector as well as the Superintendent. He further stated that in the

Inventory [Ext.-2], it was mentioned that at about 12-30 hours on 05.12.2014,

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formal seizure was made. He denied a suggestion that at the time of seizure, he

mentioned himself as Inspector though he was a Superintendent, only to improve

the case. He denied a suggestion of the defence that he did not forward the

information to his immediate superior officer.

24. P.W.2, Gajendra Nath Deka was, on 08.12.2014, serving as the Deputy Director in

the Drugs and Narcotics Division, Forensic Science Laboratory [FSL], Assam. P.W.2

stated that on 08.12.2014, he received a parcel from the Director, In-Charge, FSL

in connection with Customs Case no. 06/CL/NARC/AS/Gau/2014-15 dated

05.12.2014 and the parcel consisted of 29 exhibits, enclosed with a sealed

envelope having facsimile. He testified that the 29 sealed exhibits were marked as

S-10[1]/CL/14-15 to S-10[29]/CL/14-15 respectively and they had 29 closed

polythene packets containing 30 grams dry plant materials each and they were

marked as DN.421/2014[a/1] to DN.421/2014[a/29] respectively. P.W.2 stated

that on examination, the exhibits marked as DN.421/2014[a/1] to

DN.421/2014[a/29] gave positive test for Cannabis [Ganja]. P.W.2 exhibited the

FSL Report as Ext.-3 with his signature therein as Ext.-3[1]. P.W.2 also exhibited

the Forwarding Report of the Director, In-Charge, FSL as Ext.-4 and the signature

of the then Director, In-Charge, FSL, M.N. Bora therein as Ext.-4[1] stating that he

knew the signature of M.N. Bora.

24.1. In cross-examination, P.W.2 stated that he examined the suspected materials.

25. P.W.3, Dr. Satyen Ray was, on 05.12.2014, serving as a Superintendent in the

Customs Division, Guwahati. P.W.3 deposed to the effect that at around 05-00

a.m. on 05.12.2014, Dipen Chandra Bania [P.W.4], the then Senior

Superintendent, informed him [P.W.3] that on the previous night, the Customs

Officers had seized two trucks loaded with Ganja and those two trucks were

brought to their Office. P.W.3 further stated that at 06-30 a.m., he [P.W.3] went

to the Office and going there, he [P.W.3] saw that suspected Cannabis [Ganja]

were being unloaded from a vehicle bearing registration no. HR-65/7758. He then

appointed P.K. Deka [P.W.5] as the Seizing Officer and Mr. Ramesh Singh [P.W.8]

as the Investigating Officer. Thereafter, Cannabis [Ganja] were unloaded from

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other vehicle bearing registration no. HR-65/8403. The packets containing

suspected Cannabis [Ganja] were weighed on the digital weighing machine of the

Office in presence of him [P.W.3] and other witnesses. P.W.3 exhibited the

Weighment Sheet as Ext.-5 along with his signature therein as Ext.-5[1]. P.W.3

further stated that on weighment, weight of the suspected Cannabis [Ganja] was

found to be 1093.68 kgs. P.W.3 exhibited the Order whereby he appointed the

Seizing Officer and the Investigating Officer, as Ext.-6 with his signature therein as

Ex.-6[1]. P.W.3 also stated that the Cannabis [Ganja] were brought in both the

vehicles by hiding them under the packets containing tea. He further stated that

the Seizure List & the Inventory [Ext.-2] were prepared in the Office and he

subscribed his signature in the Inventory as Ext.-2[1]. P.W.3 testified that the

Investigating Officer collected samples of the seized Cannabis [Ganja] in 29

packets and those 29 packets of samples were given to him. He then put the 29

packets of samples in one packet and forwarded the packet from his office to the

FSL vide Ext.-7 and he subscribed his signature therein as Ext.-7[1]. P.W.3 also

exhibited a Receipt given by the FSL as Ext.-8 and the Report [Ext.-9] submitted

as per the provision of Section 57 of the NDPS Act with his signature therein as

Ext.-9[1] and Ext.-9[2] respectively.

25.1. When P.W.3 was cross-examined, he stated that he appointed the Seizing Officer

[S.O.] and the Investigating Officer [I.O.] at around 07-00 a.m. P.W.3 further

stated that a total of 29 packets were recovered from both the trucks. He further

stated that it was on 08.12.2014, the samples were sent vide Ext.-7. He denied a

suggestion that he violated the provision of Section 57 of the NDPS Act during the

time of sending Ext.-7.

26. P.W.4, Dipen Chandra Bania was, on 04.12.2014, serving as the Superintendent in

the Department of Customs. P.W.4 testified to the effect that around 10-30 p.m.

on 04.12.2014, Ridip Hazarika [P.W.1], an Inspector of Customs, who got

promoted to the post of Superintendent around that time, received an information

from a secret source that two trucks carrying Ganja were coming towards Baihata

Chariali. After P.W.1 informed him [P.W.4] about carrying of Ganja by two trucks

over phone, he and P.W.1 came to the office. P.W.1 reduced the information on a

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paper, Ext.-1 and handed over the same to him [P.W.4]. P.W.4 exhibited his

signature in Ext.-1 as Ext.1[2]. On receipt of the information vide Ext.-1, P.W.4

stated to have ordered P.W.1 in writing to intercept the two trucks at Baihata.

P.W.4 also passed an Order to form a team consisting of [i] Ridip Hazarika

[P.W.1], Inspector of Customs; [ii] P.K. Deka [P.W.5], Inspector of Customs; [iii]

Ramesh Singh [P.W.8], Inspector of Customs; [iv] Sanjib Das, Inspector of

Customs; [v] Ranjan Sarma, Constable, Customs; and two others. P.W.4 further

deposed that the team, led by him, proceeded to Baihata Chariali and the team

arrived at Baihata Chariali at around 12-30 a.m. P.W.4 further stated that when at

around 01-00 a.m. the team found two trucks, matching with the information they

received, proceeding towards Baihata Chariali, the team ordered the two trucks to

stop. The first of the two trucks did not stop at their signal and ran away.

However, the second truck made a halt. When the team members chased the first

truck, the driver and the handyman of the truck fled away from the scene after

stopping the truck at a distance of half-kilometer. Finding the key of the truck in

the ignition point, a Departmental driver drove the truck to the Office situate at

Christian Basti, Guwahati along with the other truck wherefrom the driver, Binod

Yadav [A-1] and the helper, Avneesh Kumar Rajput [A-2] were apprehended.

P.W.4 testified that when the two apprehended accused persons were asked, they

confessed that Ganjas were brought along with packages of tea. As it was at about

04-00 a.m. the bags of tea were unloaded from the trucks at the Customs Office

with the help of labourers and in presence of witnesses. P.W.4 stated that 17

[seventeen] packets of Ganja were found in the truck bearing registration no. HR-

65/7758 and 12 [twelve] packets of Ganja were found in the truck bearing

registration no. HR-65/8403. When the packets of Ganja were weighed, the weight

was found to be of 1093 kgs. It was P.K. Deka [P.W.5], Inspector of Customs, who

seized the packets of Ganja.

26.1. In cross-examination, P.W.4 stated that Ramesh Singh [P.W.8], Inspector of

Customs was given the charge of investigation. It was P.W.4, P.K. Deka, Inspector

of Customs who arrested the accused persons and produced them before the

Court. P.W.4 further stated that during the occurrence, Ridip Hazarika [P.W.1],

Inspector of Customs got promoted and joined as Superintendent. P.W.4 further

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stated that he called the owners of the seized vehicles, whose names he did not

remember. The owners had provided the names of the driver of the vehicle and

the statements of the owners were also recorded. P.W.4 stated that when they

intercepted the two trucks at around 02-00 a.m. on 05.12.2014 they could not find

any independent witness at Baihata Chariali. P.W.4 denied a suggestion that the

accused persons were innocent and were not involved in the incident.

27. P.W.5, Punya Kumar Deka stated that on 05.12.2014, he was posted as Inspector

of Anti–Smuggling Unit in the Customs Office, Guwahati and on that day, as per

information received on 04.12.2014, a team was formed wherein he was a

member. It was at around 11-00 p.m. on 04.12.2014, the team proceeded to

Baihata Chariali by an office car. P.W.5 stated that on reaching Baihata Chariali, he

conducted naka checking on the National Highway on Rangiya side. It was at

around 02-00 a.m., the team saw two white colour closed trucks proceeding from

the Baihata Chariali side. As the registration numbers of the two trucks matched

with their information, the team signaled the trucks to stop at naka point. One of

the trucks bearing registration no. HR-65/7758 stopped normally but the other

truck went ahead. After travelling a short distance, the other truck also stopped

but the occupants of the said truck bearing registration no. HR-65/8403 fled away

leaving the truck. When the driver and the other occupant of the truck bearing

registration no. HR-65/7758 were asked, they disclosed their identities as Binod

Yadav [A-1] and Avneesh Kumar Rajput [A-2] respectively. On further enquiry,

they disclosed that the truck was loaded with tea packets. Thereafter, both the

trucks were taken to the Customs Office immediately. When the goods loaded in

the two trucks were checked, they were found loaded with tea bags. But after

some tea bags were removed, some HDPE packets were noticed. On checking,

those HDPE packets were found to have contained ganja. 17 nos. of HDPE packets

containing Ganja were found in the truck bearing registration no. HR-65/7758 and

12 nos. of HDPE packets containing Ganja were found in the truck bearing

registration no. HR-65/8403. When all the 29 packets were weighed in the

Departmental weighing instrument in presence of P.W.1 and P.W.8, the total

weight was found to be 1093.68 kgs. Thereafter, they drew duplicate samples

from each of the 29 bags containing Ganja under the supervision of Dr. Satyendra

Page 25 of 74

Ray [P.W.3], Superintendent. P.W.5 exhibited the Weighment Sheet as Ext.-5 and

the signatures of Dr. Satyendra Ray [P.W.3], Superintendent, the accused - Binod

Yadav [A-1] and the accused - Avneesh Kumar Rajput [A-2] in Ext.-5 as Ext.-5[1],

Ext.-5[3] and Ext.-5[4] respectively along with his signature therein as Ext.-5[2].

P.W.5 exhibited the Seizure List as Ext.-2 and his signatures therein as Ext.-2[3],

Ext.-2[4] and Ext.-2[5] respectively. P.W.5 also identified the signatures of the

accused - Binod Yadav [A-1] and the accused - Avneesh Kumar Rajput [A-2] in

Ext.-2. According to P.W.5, the accused persons and the independent witnesses

were present at the time of seizure and he was inter-alia assisted by Ridip

Hazarika [P.W.1] and Ramesh Kumar Singh [P.W.8]. P.W.5 stated that the 17 nos.

of packets – SI-1 to SI-17 – of dry plants, believed to the Ganja, seized from the

truck bearing registration no. HR-65/7758 weighed @ 624.97 kgs [net] and the 12

nos. of packets – SI-2 to SI-12 – of dry plants, believed to the Ganja, seized from

the truck bearing registration no. HR-65/8403 weighed @ 468.71 kgs [net]. He

also stated that a total of 745 packets of tea – 354 packets from truck bearing

registration no. HR-65/8403 and 391 packets of tea from truck bearing registration

no. HR-65/7785 - were recovered. After describing the other articles which were

seized, P.W.5 stated that all the articles were seized in connection with Customs

Case no. 06/CL/NARC/AS/Gau/2014-15 dated 05.12.2014 and prior to such

seizure, he was appointed as the Seizing Officer [S.O.] by Dr. Satyendra Ray,

Superintendent vide Ext.-6. P.W.5 also stated that he also prepared a Panchnama

as Ext.-10. As per the statement [Ext.-13] given by the accused - Binod Yadav [A-

1] and recorded by him [P.W.5], the tea bags were loaded at Amingaon and

thereafter, they proceeded to Rowta and after loading Ganja there, they returned

on the next day. P.W.5 further stated that the accused persons were produced

before the Court on 06.12.2014 along with the seized articles and the samples.

P.W.5 deposed that he drew a test memo of samples mentioning the name of the

accused, sample number, case number and date of test packing with seal

impression and facsimile along with quality and weight of the sample. P.W.5

exhibited the Test Memo prepared for FSL examination as Ext.-12. He stated that

the samples were forwarded by the Department along with the Test Memo [Ext.-

12] by a Letter [Ext.-7] dated 08.12.2014 and in return, the FSL acknowledging

the receipt of samples contained in one cartoon box, forwarded a Report [Ext.-8].

Page 26 of 74

P.W.5 also exhibited a Report in Form-F vide Memo no.

VIII[10]24/CUS/AS/Gau/14-15/1602-5 dated 08.12.2014 prepared by Dr.

Satyendra Ray [P.W.3] and forwarded to the Director General, New Delhi and to

the Deputy Director, NCB, Guwahati as Ext.-9 and he identified his signatures

therein as Ext.-9[1], Ext.-9[3] and Ext.-9[4] respectively apart from the signature

of Dr. Satyendra Ray as Ext.-9[2]. P.W.5 further testified that he had brought the

seized articles along with the duplicate samples and exhibited the seized packets

of Cannabis [Ganja] in sealed condition, having the signatures of the two accused

and the two independent witnesses, as Mat. Ext.-1 to Mat. Ext.-29. He also stated

that the exhibits contained his signature as well as the signatures of Dr. Satyendra

Ray [P.W.3] and those were also signed by the learned Chief Judicial Magistrate,

Kamrup [M]. P.W.5 also exhibited a paper carton in sealed condition containing 29

packets of samples of Ganja, and stated that each sample of 30 grams were drawn

from each packet for two set of samples. P.W.5 also recognized the two accused

persons before the Court.

27.1. During cross-examination, P.W.5 stated that the accused persons were arrested by

him. There was no order in writing to him by his superior officer to arrest the

accused persons. P.W.5 denied a suggestion that he was not authorized, on

04.12.2014, to go to Baihata Chariali and to seize and collect samples. It was due

to darkness and fog, the occupants of the truck bearing registration no. HR-

65/8403 could not be apprehended. The trucks were not checked at Baihata

Chariali. After the trucks were taken to their Office at 04-00 a.m. on 05.12.2014,

two independent witnesses from Pathar Kuwari were found near the Office. The

defence gave few suggestions to P.W.5 and the same were denied by him.

28. P.W.6, Shiv Shankar Basumatary was serving as Inspector of Customs, Guwahati

on 05.12.2014. In his evidence-in-chief, P.W.6 stated that in the early morning of

05.12.2014, he was asked by Dipen Chandra Bania [P.W.4], Superintendent of

Customs that a team of Customs Officers intercepted two trucks and after

interception, the trucks were brought to the Office at Guwahati. P.W.4 further

informed to P.W.6 that the details contained in the truck would require an

examination. Accordingly, he [P.W.6] reached the Customs Office, Guwahati to

Page 27 of 74

assist Punya Kumar Deka [P.W.5], Inspector of Customs, who was conducting

searches in the trucks. P.W.6 further stated that during the searches, 29 packets

of Ganja concealed under packets of tea were recovered in presence of the driver

and the handyman, apprehended along with the truck. Those 29 packets of Ganja

were then weighed in the weighing machine of the Customs Department, before

their seizure and before drawal of samples from them by Punya Kumar Deka

[P.W.5], Inspector of Customs in presence of the driver, the handyman and two

independent witnesses. An Inventory was also prepared by P.W.5, the Seizing

Officer of the case of recovery. P.W.6 stated that on weighment, the total weight

of seized Ganja packets were found @ 1093.68 kgs. P.W.6 exhibited the Inventory

as Ext.-2 and his signature with seal therein as Ext.-2[12].

28.1. When P.W.6 was cross-examined, he stated that he was not with the team of

Customs officials and he was not aware as to when the team of Customs officials

returned to the Customs Office. P.W.6 stated to have reached the Customs office

at about 04-00 a.m.

29. P.W.7, Suraj Thapa has claimed himself as a plumber by occupation and as a

resident of Pathar Kuwari, Police Station - Noonmati. In his evidence-in-chief,

P.W.7 stated that when at about 04-00 a.m. on a day on or about two years ago,

he was on a way to a house at Christian Basti for looking at a boring crack, he was

called by three persons. The three persons took him to a building where he

noticed two closed body trucks with drivers. It was in his [P.W.7] presence, the

trucks were searched and during the search, packets containing Ganja were found.

When the packets of Ganjas were weighed, the weight was found out to be about

1100 kgs. P.W.7 stated that the driver and the handyman were present at that

time and he identified the accused persons present in the court as the driver and

the handyman of the trucks. P.W.7 exhibited the Inventory of goods seized as

Ext.-2 and his signature therein as Ext.-2[13] and Ext.-2[14] respectively. P.W.7

also exhibited the Weighment Sheet [Ext.-5] and his signature therein as Ext.-5[1].

P.W.7 also exhibited the Panchnama [Ext.-10] and his signatures therein as Ext.-

10[3], Ext.-10[4], Ext.-10[5], Ext.-10[6], Ext.-10[7], Ext.-10[8] and Ext.-10[9].

Page 28 of 74

29.1. During cross-examination, P.W.7 stated that he used to reside in his own house,

which was at a distance of 10 kilometre from Christian Basti, Guwahati. P.W.7

disclosed that he did not have any plumber certificate. P.W.7 stated that he was

not in a position to say where he was going at 04-00 a.m. on the relevant day and

he cannot name the bye-lane and the owner of the house where he was going for

work on that day. He said that he could not say the names of the persons who

called him near the trucks. P.W.7 stated that he unloaded the packets from the

trucks till 12 noon and for that work, he received labour charges. He further stated

that the contents of the documents were written before he signed those

documents. P.W.7 denied suggestions that he did not see the driver and the

handyman of the trucks; and that except signing the documents, he did not know

anything.

30. P.W.8, Ksh. Ramesh Singh was, on 05.12.2014, posted as Inspector, Anti-

Smuggling Unit in the Customs Division, Guwahati. In his examination-in-chief,

P.W.8 deposed to the effect that on 04.12.2014, Senior Inspector of Customs,

Ridip Hazarika, P.W.1 received an information that two trucks bearing registration

nos. HR-15/7758 and HR-65/8403, loaded with Ganja, were coming from Rowta

side and would cross Baihata Chariali on 05.12.2014 and there would be around 2-

3 persons. On the basis of the said information, a team to be led by their

Superintendent - Dipen Chandra Bania, was formed and the team proceeded to

Baihata Chariali area on 04.12.2014. After reaching Baihata Chariali area, the team

including him [P.W.8] kept surveillance from 1 O’Clock on 05.12.2014. Though

they requested the passersby to be witnesses but none of them had accepted the

request. At around 02-00 a.m., they saw two trucks, whose registration nos. were

found matched with the information received. Accordingly, the two trucks were

signaled to stop by the team. To the signal, only the truck bearing registration no.

HR-65/7758 stopped. The other truck bearing registration no. HR-65/8403 did not

stop at the signal and proceeded further. However, it stopped at a distance of

about 500 meters from the Naka checking point. When the officers from the team

reached near the truck bearing registration no. HR-65/8403, the driver and the

assistant were found to have fled away. They could not be found due to heavy fog

and darkness. When the driver and the assistant of the truck bearing registration

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no. HR-65/7758 were enquired, they disclosed their identities as Binod Yadav [A-1]

and Avneesh Kumar Rajput [A-2]. On further query about the goods loaded in the

truck, the driver [A-1] informed that the truck was loaded with a consignment of

tea bags. Thereafter, on instruction of the Superintendent - Dipen Chandra Bania,

the truck was brought to the Customs Office at Guwahati for checking by Binod

Yadav [A-1]. The other truck bearing registration no. HR-65/8403 was brought to

the Customs Office by Departmental driver named Har Ratan Singh. At the

Customs office both the trucks were opened by breaking the locks by Binod Yadav

[A-1] and Avneesh Kumar Rajput [A-2] in presence of witnesses. On checking the

trucks in presence of both the accused persons and the independent witnesses,

tea bags were found loaded. When some bags of tea were removed, a nos. of

HDPE bags were found concealed under the tea bags. On removal, 17 [seventeen]

nos. of HDPE bags were counted in the truck bearing registration no. HR-65/7758

and from the truck bearing registration no. HR-65/8403, 12 [twelve] HDPE bags

were recovered. When those HDPE bags were checked in presence of the two

accused persons and the independent witnesses, the same were found to have

contained Ganja. The HDPE bags were then weighed and after weighing, they

were seized. P.W.8 further stated that samples were drawn from each of the HDPE

packets and thereafter, the Inventory [Ext.-2] was prepared wherein he subscribed

his signature as Ext.-2[15]. P.W.8 who stated that he was present at the time of

weighment of the HDPE bags, exhibited the Weighment Sheet at Ext.-5 with his

signature therein as Ext.-5[5]. P.W.8 further stated that he was appointed as the

Investigating Officer [I.O.] of the case by an Office Order dated 06.12.2014 [Ext.-

6] by Satyendra Roy, Superintendent of Customs under his signature, Ext.-6[1].

P.W.8 stated that during investigation, antecedents of the accused persons were

verified and he recorded the statement of the accused, Avneesh Kumar Rajput [A-

2] vide Ext.-13. P.W.8 exhibited his signature with seal in Ext.-13 as Ext.-13[1] and

the signature of Satyendra Roy [P.W.3] who was present at the time of recording,

as Ext.-13[2]. P.W.8 stated that the FSL Report was received and the same

showed that the samples contained Ganja. P.W.8 stated that after going through

the documents, he filed the Complaint under the NDPS Act against both the

accused persons. P.W.8 exhibited the Complaint as Ext.-14 and his signature with

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seal therein as Ext.-14[1] to Ext.-14[46]. P.W.8 also identified the two accused

persons who were present before the Court at the time of his testimony.

30.1. During cross-examination, P.W.8 stated that the name of the driver of the truck

bearing registration no. HR-65/7758 was one Jagdish Sailendra and one

Dharmendra was its Khalasee. But, he [P.W.8] did not record their statements

though he had recorded the statements of the owners of the trucks. One Shish Pal

Sharma was the owner of the tea bags in the two trucks. P.W.8 also stated that

one Shiva Mahato was their independent witness but his statement was not

recorded. P.K. Deka [P.W.5] as the Seizing Officer [S.O.] recorded the statement

of Binod Yadav [A-1]. P.W.8 also stated that he typed the statement of the

accused, Avneesh Kumar Rajput [A-2], who was arrested by P.K. Deka [P.W.5].

P.W.8 denied a suggestion that Ridip Hazarika [P.W.1] did not forward the secret

information to his superior officer.

L. Documentary Evidence and Material Exhibits :-

31. During the course of the trial, the prosecution side exhibited the following 14 nos.

of documents and 30 nos. of material exhibits :-

Documentary Evidence

Exhibit No. Description

Exhibit-1 Information taken down in writing under Section 42[1], NDPS Act

Exhibit-2 Seizure List & Inventory of Goods Seized dated 05.12.2014

Exhibit-3 Report dated 12.12.2014 of the FSL/DFS, Assam

Exhibit-4 Office Letter dated 23.12.2014 of the FSL/DFS forwarding Ext.-3 Report

Exhibit-5 Weighment Sheet of 29 packages recording net weight of 1093.68 kgs

Exhibit-6 Order dated 05.12.2014 appointing Seizing Officer & I.O.

Exhibit-7 Letter dated 08.12.2014 of P.W.3 to the FSL/DFS forwarding samples

Exhibit-8 DFS/FSL Letter dated 08.12.2014 acknowledging receipt of samples

Exhibit-9 Report dated 08.12.2014 submitted under Section 57, NDPS Act.

Exhibit-10 Panchnama prepared on 05.12.2014

Exhibit-11 Statement recorded of the accused person, Binod Yadav [A-1]

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Exhibit-12 Test Memo recording drawal of 29 samples on 05.12.2014

Exhibit-13 Statement recorded of the accused person, Avneesh Kr. Rajput [A-2]

Exhibit-14 Complaint filed under Section 36A[1][d], NDPS Act on 02.06.2015

Material Exhibits

Mat. Ext.-1 to Mat. Ext.-29 29 HDPE packages seized on 05.12.2014

Mat. Ext.-30 Paper Carton containing 29 packets of samples

M. The relevant statutory provisions :-

32. As the contestation of the parties is on compliance or non-compliance of the

statutory provisions contained in Section 42, Section 43, Section 52A and Section

57 respectively of the NDPS Act, it would be appropriate to quote the said

provisions in extenso herein for ready reference.

The Narcotic Drugs and Psychotropic Substances Act, 1985 :-

42. Power of entry, search, seizure and arrest without

warrant or authorisation.—

[l] Any such officer being an officer superior in rank to

a peon, sepoy or constable of the departments of central

excise, narcotics, customs, revenue intelligence 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 any other department of

a State Government as is empowered in this 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

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the commission of such offence or 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

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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 sub-section [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.

43. Power of seizure and arrest in public place.—

Any officer of any of the departments mentioned in

section 42 may —

[a] seize in any public place or in transit, any narcotic

drug or psychotropic substance or controlled substance in

respect of which he has reason to believe an offence

punishable under this Act has been committed, and, along

with such drug or substance, any animal or conveyance or

article liable to confiscation under this Act, any

document or other article which he has reason to believe

may furnish evidence of the commission of an offence

punishable under this Act 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;

[b] detain and search any person whom he has reason to

believe to have committed an offence punishable under

this Act, and if such person has any narcotic drug or

psychotropic substance or controlled substance in his

possession and such possession appears to him to be

unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the

expression ‘public place’ includes any public conveyance,

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hotel, shop, or other place intended for use by, or

accessible to, the public.

52A. Disposal of seized narcotic drugs and psychotropic

substances.—

[1] The Central Government may, having regard to the

hazardous nature, vulnerability to theft, substitution,

constraint of proper storage space or any other relevant

consideration, in respect of any narcotic drugs,

psychotropic substances, controlled substances or

conveyances, by notification in the Official Gazette,

specify such narcotic drugs, psychotropic substances,

controlled substances or conveyance or class of narcotic

drugs, class of psychotropic substances, class of

controlled substances or conveyances, which shall, as

soon as may be after their seizure, be disposed of by

such officer and in such manner as that Government may,

from time to time, determine after following the

procedure hereinafter specified.

[2] Where any narcotic drugs, psychotropic substances,

controlled substances or conveyances has been seized and

forwarded to the officer-in-charge of the nearest police

station or to the officer empowered under section 53, the

officer referred to in sub-section [1] shall prepare an

inventory of such narcotic drugs, psychotropic

substances, controlled substances or conveyances

containing such details relating to their description,

quality, quantity, mode of packing, marks, numbers or

such other identifying particulars of the narcotic drugs,

psychotropic substances, controlled substances or

conveyances or the packing in which they are packed,

country of origin and other particulars as the officer

referred to in sub-section [1] may consider relevant to

the identity of the narcotic drugs, psychotropic

substances, controlled substances or conveyances in any

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proceedings under this Act and make an application, to

any Magistrate for the purpose of —

[a] certifying the correctness of the inventory so

prepared; or

[b] taking, in the presence of such Magistrate,

photographs of such drugs, substances or conveyances

and certifying such photographs as true; or

[c] allowing to draw representative samples of such

drugs or substances, in the presence of such

Magistrate and certifying the correctness of any

list of samples so drawn.

[3] Where an application is made under sub-section [2],

the Magistrate shall, as soon as may be, allow the

application.

[4] Notwithstanding anything contained in the Indian

Evidence Act, 1872 [1 of 1972] or the Code of Criminal

Procedure, 1973 [2 of 1974], every court trying an

offence under this Act, shall treat the inventory, the

photographs of narcotic drugs, psychotropic substances,

controlled substances or conveyances and any list of

samples drawn under sub-section [2] and certified by the

Magistrate, as primary evidence in respect of such

offence.

57. Report of arrest and seizure. —

Whenever any person makes any arrest or seizure, under

this Act, he shall, within forty-eight hours next after

such arrest or seizure, make a full report of all the

particulars of such arrest or seizure to his immediate

official superior.

N. The Penal Provisions involved :-

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33. As per the definition provided in Section 2[iii][b] of the NDPS Act, ‘Cannabis

[Hemp]’ means Ganja, that is, the flowering of fruiting tops of the Cannabis plant

[excluding the seeds and leaves when not accompanied by the tops], by whatever

named there may be known or designated. As per Section 2[xiv], ‘Narcotic Drug’

inter alia means Cannabis [Hemp]. Section 20[b][ii][C] has provided that whoever,

in contravention of any provisions of the NDPS Act or any rule or order made or

condition of licence granted thereunder, inter alia possesses or purchases or

transports Cannabis, involving commercial quantity, shall be punishable with

rigorous imprisonment for a term which shall not be less than ten years but which

may extend to twenty years and shall also be liable to fine which shall not be less

than one lakh rupees but which may extend to two lakh rupees; provided that the

Court may, for reasons to be recorded in the Judgment, imposed a fine exceeding

two lakhs. In view of Section 2[viia], ‘commercial quantity’, in relation to narcotic

drugs, means any quantity greater than the quantity specified by the Central

Government by notification in the Official Gazette. As per Entry no. 55 of the

relevant notification issued under Section 2[viia] of the NDPS Act, a quantity of

Ganja above twenty kg is commercial quantity.

O. Discussion and Reasons for Decision :-

[i] Ref : Section 42 and Section 43, NDPS Act.

34. The provision contained in sub-section [1] of Section 42 of the NDPS Act has inter

alia prescribed that an officer above the ranks mentioned therein or an

Empowered Officer [hereinafter referred to as ‘the Empowered Officer’, for easy

reference], 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 the NDPS Act has been committed or any document or other

article which may furnish evidence of the commission of such offence or 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 the relevant provisions of the NDPS Act or concealed in

any building, conveyance or enclosed space, may between sunrise or sunset, enter

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into and search any such building, conveyance or place; seize such drug or

substance and any other article and conveyance or any document; and detain and

search, and if he thinks proper, arrest any person whom he has reason to believe

to have committed any offence punishable under the NDPS Act.

34.1. The proviso to sub-section [1] of Section 42 has laid down that if the Empowered

Officer has reason to believe that a search warrant or authorization cannot be

obtained without affording opportunity for the concealment of evidence or facility

for the escape of an offender, the Empowered Officer may enter and search such

building, conveyance or enclosed place at any time between sunset and sunrise,

after recording the grounds of his belief.

34.2. Sub-section [2] of Section 42 has provided that where an Empowered Officer

takes down any information in writing under sub-section [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.

35. The provisions contained in Section 42, as a whole, has come for consideration

before a Constitution Bench of the Hon’ble Supreme Court of India in Karnail

Singh vs. State of Haryana, reported in [2009] 8 SCC 539. After surveying a

number of precedents, the Constitution Bench has observed as under :-

35. In conclusion, what is to be noticed is that Abdul

Rashid, [2000] 2 SCC 513; did not require literal compliance

with the requirements of Sections 42[1] and 42[2] nor

did Sajan Abraham, [2001] 6 SCC 692; 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,

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before proceeding to take action in terms of clauses [ a] to

[d] of Section 42[1].

[b] But if the information was received when the officer was

not in the police station, but while he was on the move

either on patrol duty or otherwise, either by mobile phone,

or other means, and the information calls for immediate

action and any delay would have resulted in the goods or

evidence being removed or destroyed, it would not be

feasible or practical to take down in writing the

information given to him, in such a situation, he could take

action as per clauses [ a] to [d] of Section 42[1] and

thereafter, as soon as it is practical, record the

information in writing and forthwith inform the same to the

official superior.

[c] In other words, the compliance with the requirements of

Sections 42[1] and 42[2] in regard to writing down the

information received and sending a copy thereof to the

superior officer, should normally precede the entry, search

and seizure by the officer. But in special circumstances

involving emergent situations, the recording of the

information in writing and sending a copy thereof to the

official superior may get postponed by a reasonable period,

that is, after the search, entry and seizure. The question

is one of urgency and expediency.

[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 when the police officer was in the police

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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.

36. Section 43 of the NDPS Act has contemplated seizure and arrest of an offender in

a public place. Discussing the distinction between the provisions of Section 42 and

Section 43 of the NDPS Act, the Hon’ble Court in Karnail Singh [supra] has

observed as under :-

26. The material difference between the provisions of

Sections 42 and 43 of the NDPS Act is that Section 42

requires recording of reasons for belief and for taking

down of information received in writing with regard to

the commission of an offence before conducting search and

seizure, Section 43 does not contain any such provision

and as such while acting under Section 43 of the Act, the

empowered officer has the power of seizure of the

article, etc. and arrest of a person who is found to be

in possession of any narcotic drug or psychotropic

substance in a public place where such possession appears

to him to be unlawful.

37. It is not in dispute that the case in hand, the two close body container trucks

bearing registration nos. HR-65/7758 and HR-65/8403 were intercepted in the wee

hours of 05.12.2014 at a place near Baihati Chariali towards Rangia side on the

National Highway no. 31, which is indubitably a public place. Such interception of

the two trucks was on the basis of a secret information received by P.W.1 from a

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source at around 10-30 hours on 04.12.2014. P.W.1, in his testimony, deposed

that he reduced the information into writing and exhibited the information which

he reduced into writing, as Ext.-1. P.W.1 further testified that after reducing the

information into writing, the same [Ext.-1] was informed to his immediate official

superior, D.C. Bania [P.W.4], Superintendent of their unit and P.W.1 identified the

signatures of D.C. Bania [P.W.4] in Ext.-1 as Ext.-1[1] and Ext.-1[2] respectively.

P.W.4, D.C. Bania also testified to the effect that at around 10-30 p.m. on

04.12.2014, after receipt of information by P.W.1, both he and P.W.1 came to the

office. P.W.1 thereafter, reduced the information on paper, Ext.-1 and handed

over Ext.-1 to him. On receipt of the information vide Ext.-1, P.W.4 stated to have

ordered P.W.1 in writing to intercept the two trucks by passing an order to form a

team consisting of few Inspectors of Customs and other staff, along with him. The

prosecution had exhibited the said information reduced into writing as Ext.-1,

which had the following contents :-

Information Received

Received an information at around 10-30 hours today on

04.12.2014 to the effect that a huge quantity of Ganja

contained in 25/30 packages will be loaded in 2 [two] 6-

wheeler closed body white coloured container truck

bearing Regd. No. HR-65/8403 and HR-65/7758 which is

already loaded with a consignment of tea. It was also

informed that both the truck is operating under the

SAFEXPRESS banner. The consignment of Ganja is expected

to be loaded in both the trucks around mid night in Rowta

area and after loading the truck will proceed out at the

region. The truck is expected to cross Baihata Chariali

area en route to the destination at around 03-30/04-00

hours on 05.12.2014.

Immediate steps may kindly be taken to intercept both the

trucks before it cross Baihata Chariali area and proceed

out of the region.

Page 41 of 74

Sd/- R. Hazarika

04.12.2014

Superintendent

Shri Hazanna, Supdt. For immediate action

Shri P.K. Deka, Insp

Along with other officers should form a team and organize

naka near Baihata Chariali & intercept the trucks.

Sd/- D. Bania

04.12.2014

Superintendent

38. The contentions of the two appellants here is that P.W.4 was not the immediate

official superior of P.W.1 as both were of the same rank, that is, Superintendent of

Customs on 04.12.2014 or thereafter and therefore, there was non-compliance of

the provision contained in Section 42[2] of the NDPS Act. On perusal of Ext.-4, it

can be seen that both P.W.1 and P.W.4 signed as Superintendent of Customs. On

a combined reading of the testimony of the prosecution witnesses, it has emerged

that on 04.12.2014, D.C. Bania [P.W.4] was working as a Superintendent of

Customs. Dr. Satyen Ray [P.W.3] who was also in the rank of Superintendent of

Customs stated that D.C. Bania [P.W.4] was serving as Senior Superintendent of

Customs. It has also emerged that P.W.1 who was an Inspector of Customs, got

promoted to the rank of Superintendent of Customs on a date in and around the

date of occurrence, 04.12.2014/05.12.2014. As per the Oxford Dictionary of

English, Third Edition, the word, ‘Superior’ means higher in rank, status or

quality; a superior officer; [noun] a person superior to another in rank or status,

especially a colleague in a higher position. As per the Black’s Law Dictionary,

Ninth Edition, the word, ‘Superior’ means of a rank, office, power, etc. higher;

elevated; possessing greater power or authority; entitled to exert authority or

command over another. As per the Oxford Dictionary of English, Third

Edition, the word, ‘Immediate’ means nearest in time, relationship or rank; his

immediate superior in the department. From the above meanings ascribed to the

words, ‘immediate’ and ‘superior’, no infirmity can be found as regards the

procedure followed by P.W.1 after reducing the secret information in writing in the

Page 42 of 74

form of Ext.-1, in placing it before P.W.4 even if on 04.12.2014, both P.W.1 and

P.W.4 were in the rank of Superintendent of Customs, yet, P.W.4 being the Senior

Superintendent of Customs or being promoted to the rank of Superintendent of

Customs at an earlier point of time, would still be an immediate superior officer to

P.W.1. Since the information reduced in writing in the form of Ext.-1 was

immediately shown on 04.12.2014 by P.W.1 and endorsed by P.W.4 on

04.12.2014 itself and thereafter, P.W.4 also passed an order on it to form a team,

also on 04.12.2014, there is no apparent infirmity in the procedure so followed vis-

a-vis the provisions contained in Section 42[2] of the NDPS Act. Further, the

compliance with the requirements of Section 42[1] and Section 42[2] in regard to

writing down the information received and sending a copy thereof to the

immediate superior officer preceded the interception of the two trucks and also

search, recovery and seizure. Thus, the contention raised by the appellant on non-

compliance of the provisions contained in Section 42 of the NDPS Act is found to

be without substance.

[ii] Ref : Section 57, NDPS Act.

39. Section 57 of the NDPS Act has called for an action after arrest and seizure. It has

been prescribed therein that whenever any person makes any arrest or seizure,

under the NDPS Act, he shall, within forty-eight hours next after such arrest or

seizure, make a full report of all the particulars of such arrest or seizure to his

immediate official superior. In the present case, the two trucks bearing

registration nos. HR-65/7758 and HR-65/8403 were intercepted in the wee hours

of 05.12.2014. P.W.3, Satyen Ray stated that he vide an Order dated 05.12.2014

[Ext.-6] appointed P.K. Deka [P.W.5], Inspector of Customs, Anti-Smuggling Unit

as the Seizing Officer [S.O.]. From the Order dated 05.12.2014 [Ext.-6], it is

revealed that P.W.3 had thereby appointed P.K. Deka [P.W.5] as the Seizing

Officer [S.O.]. In his testimony, P.K. Deka [P.W.5] stated that after being

appointed as the Seizing Officer [S.O.] vide the Order dated 05.12.2014 [Ext.-6],

he seized seventeen nos. of packets [net weight = 624.97 Kg] and twelve nos. of

packets [net weight = 468.71 Kg] respectively, of dry plants believed to be Ganja

from truck no. HR-65/7758 [the subject-vehicle] and truck no. HR-65/8403

Page 43 of 74

respectively by preparing a Panchnama [Ext.-10] after recording the weights of

each packet in a Weighment Sheet [Ext.-5] and preparing an Inventory of Goods

Seized [Ext.-2] recording full details of the materials seized including the twenty

nine packets containing dry plants believed to be Ganja. Both the Inventory of

Goods Seized [Ext.-2] and the Panchnama [Ext.-10] were prepared on 05.12.2014.

Both the accused persons, A-1 and A-2 were also arrested by P.W.5, P.C. Deka as

an Arresting Officer also on 05.12.2014.

40. Being the Seizing & Arresting Officer, an obligation, as per Section 57, was cast on

P.W.5, P.C. Deka to make a full report of all the particulars of such arrest and/or

seizure within forty-eight hours next after such seizure and/or arrest. It is the case

of the prosecution that P.W.5, P.C. Deka complied with the prescription of Section

57 by making a Report on 08.12.2014, which the prosecution had exhibited as

Ext.-9 through the prosecution witnesses, P.W.3, P.C. Deka and P.W.5, Satyen

Ray who had subscribed their signatures therein as Ext.-9[1] & Ext.-9[2] and Ext.-

9[3] & Ext.-9[4] respectively. On perusal of the Report [Ext.-9], it is noticed that

the Report was made under the seals and signatures of P.W.3, P.C. Deka and

P.W.5, Satyen Ray. The Report [Ext.-9] with the head, ‘First Information Report’

contained details of [i] date and time of seizure; [ii] place of seizure; [iii] method

of concealment; [iv] quantity of goods recovered; [v] description of seized goods;

[vi] estimated value; [vii] estimated value of the truck seized for transportation;

[viii] registered case no.; [ix] officer by whom seized; and [x] persons arrested.

The Report [Ext.-9] had an Appendix in Form no. F wherein apart from other

details, follow up actions likely to be taken were mentioned. Apart from forwarding

the Report [Ext.-9] mainly to the Commissioner of Customs [Prevention], North

Eastern Region, Shillong, it was also forwarded to [i] the Director General,

Narcotics Control Bureau, New Delhi; [ii] the Director General of Revenue

Intelligence, New Delhi; [iii] the Commissioner of Customs, North Eastern Region,

Shillong; and [iv] the Deputy Director, Narcotics Control Bureau, Eastern Zonal

Unit, Guwahati.

41. The point which has been raised here is that after completion of seizure and arrest

on 05.12.2014, the Report under Section 57, NDPS Act was forwarded only on

Page 44 of 74

08.12.2014, which was beyond forty-eight hours and, thus, there was failure to

make the full report within forty-eight hours next after such seizure and/or arrest.

42. Thus, the issue is not about not making of a report under Section 57, but making

of a delayed report. In this connection, the decisions in Balbir Singh [supra] and

Sajan Abraham [supra] are of relevance.

42.1. In Balbir Singh [supra], the Hon’ble Supreme Court as regards compliance of

Section 57, has observed as under :-

25. The questions considered above arise frequently before

the trial courts. Therefore we find it necessary to set

out our conclusions which are as follows:

* * * *

[6] The provisions of Sections 52 and 57 which deal with

the steps to be taken by the officers after making arrest

or seizure under Sections 41 to 44 are by themselves not

mandatory. If there is non-compliance or if there are

lapses like delay etc. then the same has to be examined to

see whether any prejudice has been caused to the accused

and such failure will have a bearing on the appreciation

of evidence regarding arrest or seizure as well as on

merits of the case.

42.2. Following Balbir Singh [supra], the Hon’ble Supreme Court in Sajan Abraham

[supra] has observed in the following manner :-

12. The last submission for the appellant is, there is non-

compliance with Section 57 of the Act. He submits under it,

an obligation is cast on the prosecution while making an

arrest or seizure, the officer should make full report of

all particulars of such arrest or seizure and send it to his

immediate superior officer within 48 hours of such arrest or

seizure. The submission is, this has not been done. Hence

Page 45 of 74

the entire case vitiates. It is true that the communication

to the immediate superior has not been made in the form of a

report, but we find, which is also recorded by the High

Court, that PW 5 has sent copies of FIR and other documents

to his superior officer, which is not in dispute. Ext. P-9

shows that the copies of the FIR along with other records

regarding the arrest of the appellant and seizure of the

contraband articles were sent by PW 5 to his superior

officer immediately after registering the said case. So, all

the necessary information to be submitted in a report was

sent. This constitutes substantial compliance and mere

absence of any such report cannot be said to have prejudiced

the accused. This section is not mandatory in nature. When

substantial compliance has been made, as in the present

case, it would not vitiate the prosecution case. In the

present case, we find PW 5 has sent all the relevant

material to his superior officer immediately. Thus we do not

find any violation of Section 57 of the Act.

42.3. In Bahadur Singh [supra] also, the Hon’ble Supreme Court has held that as far

as compliance with the provisions of Section 57 of the NDPS is concerned, the

same is not mandatory.

43. From the decisions in Balbir Singh [supra] and Sajan Abraham [supra], it is clear

that substantial compliance of Section 57 of the NDPS Act will suffice and making

of a report of seizure and/or arrest within forty-eight hours next after such seizure

and/or arrest is not a sine qua non as necessary as the provision is directory. As

in the case in hand though the Report [Ext.-9] was not made and sent within

forty-eight hours from seizure and arrest made on 05.12.2014, since the Report

[Ext.-9] was made on 08.12.2014 making and sending of the Report [Ext.-9]

constituted substantial compliance. As substantial compliance had been made and

no prejudice was alleged or shown, it is to be held that there is no violation of the

provision contained in Section 57 of the NDPS Act in the present case.

[iii] Ref : Section 52A, NDPS Act.

Page 46 of 74

44. In exercise of the power conferred by sub-section [1] of Section 52A, the Central

Government can, having regard to the hazardous nature, vulnerability of theft,

substitution, constraint of proper storage space or any other relevant

consideration, in respect of any narcotic drugs, psychotropic substances, controlled

substances or conveyances, by notification in the Official Gazette, specify such

narcotic drugs, psychotropic substances, controlled substances or conveyance or

class of narcotic drugs, class of psychotropic substances, class of controlled

substances or conveyances, which shall, as soon as may be after their seizure, be

disposed of by such officer and in such manner as the Central Government may,

from time to time, determine after following the procedure thereinafter specified.

44.1. As per sub-section [2] of Section 52A, where any contraband or conveyance has

been seized and forwarded to the Empowered Officer, such Officer is required to

prepare an Inventory of such contraband or conveyance containing such details,

mentioned therein, or such other identifying particulars of the contraband or

conveyance or the packing in which they are packed or country of origin and other

particulars the Empowered Officer may consider relevant to the identity of the

seized contraband or conveyance in any proceedings under the NDPS Act. The

Officer has to make an application to a Magistrate for the purpose of [a] certifying

the correctness of the Inventory so prepared; or [b] taking, in the presence of

such Magistrate, photographs of such seized contraband or conveyance and

certifying such photographs as true; and [c] allowing to draw representative

samples of such seized contraband, in the presence of such Magistrate and

certifying the correctness of any list of samples.

44.2. A mandate is contained in subsection [3] to the effect that where an application is

made under sub-section [2], the Magistrate shall, as soon as may be, allow the

application.

44.3. Sub-section [4] of Section 52A is with a non-obstante clause. It has prescribed that

notwithstanding anything contained in the Indian Evidence Act, 1872 or the CrPC,

every court trying an offence under the NDPS Act, shall treat the Inventory, the

photographs of the seized contraband or conveyance and any list of samples

Page 47 of 74

drawn under sub-section [2] of Section 52A and certified by the Magistrate, as

primary evidence in respect of such offence.

45. The Standing Order no. 1/89 dated 13.06.1989 was issued by the Central

Government in exercise of the powers conferred by sub-section [1] of Section 52A

of the NDPS Act determining the narcotic drugs and the psychotropic substances

which were to be disposed of, and laying down the manner in which such specified

narcotic drugs and psychotropic substances were to be disposed of after seizure.

Ganja was included in the list of specified narcotic drugs in the Standing Order no.

1/89.

46. The expression ‘after following the procedure hereinafter specified ’

appearing in Section 52A[1] is of significance. From a combined reading of sub-

section [1] and sub-section [2], it becomes evident that after seizure of the

specified contraband substances, such specified contraband substances are to be

disposed of only after following the procedure thereinafter specified. The

procedure to be followed before disposal of the specified contraband substances is

mentioned in sub-section [2] of Section 52A. In other words, the disposal of the

specified contraband substance is to be preceded by [i] preparation of an

Inventory of such seized specified contraband substances by the Empowered

Officer containing the details mentioned therein; [ii] making of an application by

the Empowered Officer to a Magistrate for the purpose of [a] certifying the

correctness of the Inventory so prepared; or [b] taking, in the presence of such

Magistrate, photographs of such seized contraband or conveyance and certifying

such photographs by the Magistrate as true; and [c] allowing to draw

representative samples of such seized samples, in the presence of such Magistrate

and certifying the correctness of any list of samples.

47. Turning to the evidence/materials on record, it is evident from the Panchnama

[Ext.-10] prepared on 05.12.2014; the First Information Report read with

Appendix-A thereto [Ext.-9] submitted in compliance of Section 57 of the NDPS Act

on 08.12.2014; and the Complaint [Ext.-14] filed under Section 36A[1][d] of the

NDPS Act; that after seizing 29 nos. of HDPE packages suspected to have

Page 48 of 74

contained Cannabis [Ganja], weighing 1093.6 kgs as per the Weighment Sheet

[Ext.-5], in the office premises of the Customs Office situated at Christian Basti,

Guwahati in the early morning hours on 05.12.2014, an Inventory of Goods Seized

[Ext.-2] was prepared on 05.12.2014 at the same place. After preparing the

Inventory of Goods Seized [Ext.-2], samples in duplicate, weighing 30 grams each,

were drawn from the 29 nos. of packages suspected to have contained Cannabis

[Ganja] and those samples were seized in presence of the accused persons, A-1

and A-2 and in presence of other witnesses for sending those samples to the

FSL/DFS for chemical examination. The prosecution witnesses – P.W.1, P.W.3,

P.W.5, P.W.6, P.W.7 and P.W.8 – had all testified about the preparation of the

Inventory of Goods Seized [Ext.-2] in the premises of the Customs Office,

Guwahati on 05.12.2014. The prosecution witnesses – P.W.3, P.W.5, P.W.6 and

P.W.8 – had all testified that samples were drawn in duplicate from each of the 29

nos. of HDPE packages containing suspected Ganja in the premises of the Customs

Office, Guwahati on 05.12.2014.

48. After seizure of 29 nos. of HDPE packages containing suspected Cannabis [Ganja];

preparation of the Inventory of Goods Seized [Ext.-2]; drawal of samples from

those seized 29 nos. of HDPE packages; and arrest of the two accused persons, A-

1 and A-2; those were produced before the Court of learned Chief Judicial

Magistrate, Kamrup [Metro], Guwahati on 06.12.2014. An application was also

submitted by the Seizing and Arresting Officer, P.K. Deka [P.W.4] [the contents of

the application are already extracted in paragraph 3 hereinabove] with the

following prayer :-

The documents including the seizure list prepared, the

seized articles and the samples drawn may kindly be seen.

In view of the above, it is respectfully prayed that your

honour may be pleased to pass an order remanding the

aforesaid accused persons to Judicial Custody and also allow

custody of the seized 1093.68 kgs [N] of Ganja and both the

6-wheeler closed body container truck bearing registration

no. HR-65-8403 [Engine no. DAEZ403336 and Chessis no.

Page 49 of 74

MB1A3DYC1DEAK6323] and HR-65-7758 [Engine no. CSHZ115723 and

Chessis no. MB1A3DYC8CPRF6005] all the seized articles till

decision of the case.

and/or

To pass such other order as your honour may deem fit and

proper.

It is also prayed that the Inventory Goods Seized along with

other documents and the samples drawn along with the seized

article may please be seen.

49. On 06.12.2014, the learned Chief Judicial Magistrate, Kamrup [Metro], Guwahati

passed the following order :-

Seizing Officer Sri P.K. Deka has produced inventory of the

goods seized, 29 pkts of sample, cash amount of 6,165/- and

seized Ganja with a prayer for perusing and seen.

Inventory of Goods Seized, 29 pkts of sample, cash amount

and seized Ganja are seen. Inventory be kept with C.R. and

seized articles are to be returned to S/O.

Accused persons [1] Sri Binod Kumar, aged 35 years, S/o- Ram

Krishna Yadav and [2] Sri Avneesh Kumar Rajput, aged 19

years, S/o Ahalkar Singh are produced before the court under

arrest by customs staff in connection with the above noted

case.

On being asked accused persons have stated that their family

members will engage advocate to defend them.

Considering the nature of the case accused persons are

remanded to hajot till 20.12.2014.

Superintendent of Central Jail is directed to produce the

accused persons on the next day before the Hon’ble Special

Judge, Kamrup.

Page 50 of 74

Send the C.R. to the Court of the Hon’ble Special Judge.

50. In the above facts and circumstances obtaining in the case, the primary basis for

the respondent Customs authorities to support the manner in which the Inventory

of Goods Seized [Ext.-2] and the process in which samples were drawn in

duplicate from each of the 29 packages containing suspected Cannabis [Ganja], is

the Standing Order no. 1/89 dated 13.06.1989. It is worthwhile to mention that in

Clause 2.1 and Clause 2.2 in the Standing Order no. 1/89, the following procedure

for drawal of samples was laid down : -

Samples, Classification,

2.1. All drugs be properly classified carefully, weighed and

sampled on the spot of seizure.

2.2. All the packages/containers shall be serially numbered

and in lots for sampling. Sample from the narcotic drugs and

psychotropic substances seized, shall be drawn on the spot

of recovery, in duplicate, in the presence of search

witnesses [Panchas] and the person from whose possession the

drug is recovered, and mention to this effect should

invariably be made in the panchnama drawn on the spot.

51. It has been contended on behalf of the respondent Customs authorities that the

above procedure for drawing of samples from the seized contraband, Cannabis

[Ganja] in the case in hand was followed in letter and spirit and as such, there can

be no occasion to take any exception. The argument is on the plank that since

such procedure of drawing samples was laid down in the Standing Order no. 1/89

and it being a statutory notification, the process of drawing samples followed in

the present case was in conformity with the procedure laid down in the NDPS Act.

It has been contended that the Standing Order no. 1/89 dated 13.06.1989 was

issued inter alia to standardise the procedures for drawing of samples from seized

narcotic drugs and psychotropic substances and also for forwarding and testing of

samples as well as for their final disposal. As the Standing Order no. 1/89 dated

Page 51 of 74

13.06.1989 was issued in exercise of the powers conferred by sub-section [1] of

Section 52A of the NDPS Act, it has been contended that the same is to be read as

part and parcel of the main statute.

52. It is noticed that in Clause 4.0 of the Standing Order no. 1/89, the following was

also laid down :-

4.0. Where any narcotic drug or psychotropic substance has

been seized and forwarded to the Officer In-Charge of the

nearest police station or to the officer empowered under

Section 53, the officers, referred to in paragraph 3.3

........ of the order shall prepare an inventory of such

narcotic drugs or psychotropic substance containing such

details relating to their description, quality, mode of

packing, marks, numbers or such other identifying

particulars as may considered ........ relevant to the

identity of the aforesaid drugs in any proceedings under the

Act and make an application to any Magistrate for such

purpose –

[a] Certifying the correctness of the inventory so

prepared; or

[b] Taking, in the presence of such Magistrate, photographs

of such drugs or substances and certifying such photographs

as true; or

[c] Allowing to draw representative samples of such drugs

or substances, in the presence of such Magistrate and

certifying the correctness of any list of samples so drawn.

53. As the grounds raised by the learned counsel for the parties are to be examined

qua the observations made in the decision in Mohanlal [supra], it would be

appropriate to extract the relevant excerpts from the paragraphs from the decision

relating to seizure and sampling to appreciate the rival contentions.

[2016] 3 SCC 379 : Union of India vs. Mohanlal and another : Decided

on 28.01.2016, :-

Page 52 of 74

11. ....... we are in these proceedings concerned with the

following three issues only for the present : [i] Seizure

and sampling of the narcotic drugs and psychotropic

substances, [ii] their storage, and [iii] their destruction.

Seizure and sampling

12. Section 52-A[1] of the NDPS Act, 1985 empowers the

Central Government to prescribe by a notification the

procedure to be followed for seizure, storage and disposal

of drugs and psychotropic substances. The Central Government

has in exercise of that power issued Standing Order No. 1 of

1989 which prescribes the procedure to be followed while

conducting seizure of the contraband. Two subsequent

standing orders one dated 10.05.2007 and the other dated

16.01.2015 deal with disposal and destruction of seized

contraband and do not alter or add to the earlier standing

order that prescribes the procedure for conducting seizures.

Para 2.2 of Standing Order No. 1 of 1989 states that samples

must be taken from the seized contraband on the spot at the

time of recovery itself. It reads :

2.2. All the packages/containers shall be serially

numbered and kept in lots for sampling. Samples

from the narcotic drugs and psychotropic

substances seized, shall be drawn on the spot of

recovery, in duplicate, in the presence of search

witnesses [panchas] and the person from whose

possession the drug is recovered, and a mention to

this effect should invariably be made in the

panchnama drawn on the spot.

15. It is manifest from Section 52-A[2][ c] [supra] that

upon seizure of the contraband the same has to be forwarded

either to the officer-in-charge of the nearest police

station or to the officer empowered under Section 53 who

shall prepare an inventory as stipulated in the said

Page 53 of 74

provision and make an application to the Magistrate for

purposes of [a] certifying the correctness of the inventory,

[b] certifying photographs of such drugs or substances taken

before the Magistrate as true, and [ c] to draw

representative samples in the presence of the Magistrate and

certifying the correctness of the list of samples so drawn.

16. Sub-section [3] of Section 52-A requires that the

Magistrate shall as soon as may be allow the application.

This implies that no sooner the seizure is effected and the

contraband forwarded to the officer-in-charge of the police

station or the officer empowered, the officer concerned is

in law duty-bound to approach the Magistrate for the

purposes mentioned above including grant of permission to

draw representative samples in his presence, which samples

will then be enlisted and the correctness of the list of

samples so drawn certified by the Magistrate. In other

words, the process of drawing of samples has to be in the

presence and under the supervision of the Magistrate and the

entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of

seizure which, more often than not, takes place in the

absence of the Magistrate does not in the above scheme of

things arise. This is so especially when according to

Section 52-A[4] of the Act, samples drawn and certified by

the Magistrate in compliance with sub-sections [2] and [3]

of Section 52-A above constitute primary evidence for the

purpose of the trial. Suffice it to say that there is no

provision in the Act that mandates taking of samples at the

time of seizure. That is perhaps why none of the States

claim to be taking samples at the time of seizure.

18. Be that as it may, a conflict between the statutory

provision governing taking of samples and the Standing Order

issued by the Central Government is evident when the two are

placed in juxtaposition. There is no gainsaid that such a

Page 54 of 74

conflict shall have to be resolved in favour of the statute

on first principles of interpretation but the continuance of

the statutory notification in its present form is bound to

create confusion in the minds of the authorities concerned

instead of helping them in the discharge of their duties.

The Central Government would, therefore, do well, to re-

examine the matter and take suitable steps in the above

direction.

19. ……The scheme of the Act in general and Section 52-A in

particular, does not brook any delay in the matter of making

of an application or the drawing of samples and

certification. While we see no room for prescribing or

reading a time-frame into the provision, we are of the view

that an application for sampling and certification ought to

be made without undue delay and the Magistrate on receipt of

any such application will be expected to attend to the

application and do the needful, within a reasonable period

and without any undue delay or procrastination as is

mandated by sub-section [3] of Section 52-A [supra]……

31. To sum up we direct as under :

31.1. No sooner the seizure of any narcotic drugs and

psychotropic and controlled substances and conveyances is

effected, the same shall be forwarded to the officer in

charge of the nearest police station or to the officer

empowered under Section 53 of the Act. The officer concerned

shall then approach the Magistrate with an application under

Section 52-A[2] of the Act, which shall be allowed by the

Magistrate as soon as may be required under sub-section [3]

of Section 52-A, as discussed by us in the body of this

judgment under the heading ‘seizure and sampling’. The

sampling shall be done under the supervision of the

Magistrate as discussed in Paras 15 to 19 of this order.

Page 55 of 74

54. It is true that a statutory rule or notification is to be treated as a part of the

statute. Such rules or notification made under a statute are considered to have the

same effect as if they are in the main act. It is trite to say that the same principles

of interpretation are applicable to subordinate legislation as well as statutory

notification. When a comparison is made between the procedure of drawal of

samples laid down in sub-section [2] of Section 52A and the procedure laid down

in Clause 4.0 of the Standing Order no. 1/89, it can be noticed that Clause 4.0 of

the Standing Order no. 1/89, in essence, is in conformity with sub-section [2] of

Section 52A. But, on comparison, the procedure of drawal of samples mentioned in

Clause 2.2 of the Standing Order is different from the procedure laid down in sub-

section [2] of Section 52A and also the procedure laid down in Clause 4.0 of the

Standing Order no. 1/89.

55. In view of such different procedures regarding drawal of samples, the issue which

can arise is : which of the procedures is to be followed. Had there been no

procedure regarding drawal of samples from seized contraband laid down in the

governing statute, that is, the NDPS Act, it would have been open for the

respondent authorities to contend that the Standing Order no. 1/89 and any of the

two procedures laid down in Clause 2.2 and Clause 4.0 therein would operate for

drawal of samples from seized contraband. In absence of a specific statutory

provision for drawal of samples in the parent statute it would have been open to

fill up the gaps with the issuance of a statutory notification like Standing Order no.

1/89. It is too well settled that a statutory notification can supplement a statutory

provision but it cannot amend or supersede or supplant or prevail over a statutory

provision. If a statutory notification is incongruent to a statutory provision of the

parent statue then it would be the statutory provision which would prevail in all

situations and as a consequence, the statutory notification which is incongruent to

the statutory provision would have no existence in law.

56. In view of such settled provision of law, it is the procedure for drawal of samples

from seized contraband set forth in sub-section [2] of Section 52A of the NDPS

Act, inserted by Act 2 of 1989 and in existence on and from 29.05.1989, which

would prevail and this view is for the settled law that when any statutory provision

Page 56 of 74

provides a particular manner for doing a particular act then the said act must be

done in accordance with the manner prescribed therefor in the statute and in no

other manner.

57. Learned Standing Counsel, Customs by specifically referring to the observation to

the effect that ‘the Central Government would, therefore, do well, to

re-examine the matter and take suitable steps in the above

direction’, appearing in paragraph 18 of Mohanlal [supra], has contended that

as the decision in Mohanlal [supra] was rendered on 28.01.2016, the decision

does not have any bearing in the present case as search, recovery and seizure of

the contraband and drawing of samples therefrom in the present case were made

much earlier on 05.12.2014 and the decision in Mohanlal [supra] would have

prospective effect only.

58. The contention advanced by the learned Standing Counsel, Customs Department

that the decision in Mohanlal [supra] would have prospective effect only and, in

essence, the doctrine of prospective overruling is applicable, upon due

consideration is found not acceptable. It has been held in the nine-Judge decision

in Mineral Area Development Authority and another vs. M/s Steel Authority

of India and another, 2024 INSC 607 , dated 14.08.2024, that the doctrine of

prospective overruling is applied when a constitutional court overrules a well-

established precedent by declaring a new rule but limits its application to future

situations for the underlying objective to avert injustice or hardships. It has been

observed that the doctrine is being found to have applied by the court either while

overruling its earlier decision, which was otherwise final, or when deciding on an

issue for the first time. The object is to validate all the actions taken before the

date of declaration in the larger public interest. It has been further observed that

the doctrine of prospective overruling has been applied by the Hon’ble Supreme

Court in situations where the new declaration results in the invalidation of

legislation which would otherwise have been valid under the old declaration.

59. The appellant Noor Aga [supra] was an Afghan national who arrived at Raja Sansi

Airport on 01.08.1997. As he was found carrying a carton, the Customs officials at

Page 57 of 74

the Airport suspecting that the appellant was carrying contraband or any other

suspicious item, checked the carton whereupon 22 packets of polythene containing

brown powder were allegedly recovered. The same was weighed; the gross weight

whereof was found to be 1 kg 400 gm. Thereafter, representative homogeneous

samples of each packets in small quantities were taken weighing 5 gm each and

those were purported to have been sealed. The recovered item was taken into

possession vide a recovery memo and a panchnama. The samples were sent to the

Central Forensic Laboratory on 05.08.1997. The weight of the said samples was

found to be 8.7 gm. The document has been found to have tinkered with, as the

words ‘net weight’ were crossed and converted into ‘gross weight’. The alleged

contraband was found to be of white colour containing diacetylmorphine. The

contraband articles were produced before the Magistrate on 30.01.1999. The

purpose of production has been found mired in controversy. The appellant

contended that the same was for the purpose of authentication and the Customs

Authorities contended that the contraband articles were produced for the purpose

of obtaining a judicial order for destruction thereof. No order was passed by the

learned Magistrate for destruction of the contraband and no application for

destruction was filed.

59.1. Though the provisions of Section 52A of the NDPS Act came for consideration and

a reference to the Standing Order no. 1/89 was made in Noor Aga [supra], but the

conflict between them as regards drawing of samples from the recovered and

seized contraband did not come for consideration. In Noor Aga [supra], the

prosecution did not produce before the learned trial court the physical evidence in

the form of bulk quantity of heroin allegedly recovered and it was contended that

the same had been destroyed. It is in that context it has been observed that the

law required that the authority to destroy recovered contraband must flow from an

order passed by the Magistrate and the Hon’ble Supreme Court has found that no

prayer was made for destruction of the allegedly recovered bulk quantity of heroin

or for disposal thereof otherwise. The Hon’ble Supreme Court has also observed in

the following manner :-

93. The only course of action the prosecution should have

resorted to is to obtain an order from the competent court of

Page 58 of 74

the Magistrate as envisaged under Section 52-A of the Act in

terms whereof the officer empowered under Section 53 upon

preparation of an inventory of narcotic drugs containing such

details relating to their description, quality, quantity, mode

of packing, marks, numbers or such other identifying

particulars of the narcotic drugs or psychotropic substances or

the packing in which they are packed, country of origin and

other particulars as he may consider relevant to the identity

of the narcotic drugs or psychotropic substances in any

proceedings thereunder make an application for any or all of

the following purposes :

“[a] Certifying correctness of the inventory so

prepared; or

[b] Taking, in the presence of such Magistrate,

photographs of substances and certifying such

photographs as true; or

[c] Allowing to draw representative samples of such

drugs or substances, in the presence of such

Magistrate and certifying the correctness of any list

of samples so drawn.”

60. It is found that no precedent which was overruled by Mohanlal [supra], has been

cited by the respondent side to support the contention regarding the decision in

Mohanlal [supra] to have prospective effect after overruling of any such

precedent. Further, contrary to the submission advanced by the respondent side,

the direction made in paragraph 31.1 in Mohanlal [supra] is to be read conjointly

with the observations made in paragraph 15 to paragraph 18 therein. In our

considered view, by the observation, ‘the Central Government would,

therefore, do well, to re-examine the matter and take suitable

steps in the above direction’, the Central Government was directed to re-

examine the matter and to take suitable steps for removing the confusion created

by the statutory notification, Standing Order no. 1/89. By no stretch, it can be

accepted that the procedure of drawing samples from seized contraband at the

spot had received judicial imprimatur in respect of those proceedings where after

Page 59 of 74

search, recovery and seizure, samples were drawn at the place of seizure, prior to

28.01.2006, the date when the decision in Mohanlal [supra] was rendered.

61. At this juncture, it would be apposite also to allude to the background facts and

observations made in some of the decisions, referred to by the learned counsel for

the parties.

[a] Criminal Appeal No. 3191 of 2023 : Yusuf @ Asif vs. State : 2023 INSC

912 : Decided on 13.10.2023.

Facts : On the basis of an information received by the Intelligence Officer of

Narcotics Control Bureau [NCB], a lorry parked near Puzhal Central Jail, Chennai

was intercepted by NCB in the early morning hours on 28.03.2000. Four persons

were found in the lorry and upon search, they were found in possession of

commercial quantity [20 kgs] of heroin kept in two jute bags. The samples were

drawn from each of the packets i.e. 14 big and 12 small polythene packets kept in

the two jute bags and they were seized under a seizure memo [Mahazar]. All the

four persons [A-1 to A-4] were arrested after receiving analyst report that the

seized substance was heroin. Consequently, Crime no. 113/2000 was registered.

The trial court upon consideration of the evidence on record held all the four

persons guilty under the provisions of the NDPS Act and convicted them to

undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-

each, with default stipulation. All the four accused persons preferred appeals

before the High Court. During pendency of the appeals, A-4 died and the appeal

was dismissed as abated against him. The High Court had thereafter, dismissed

the appeals of the remaining accused persons. Before the Hon’ble Supreme Court

only A-1 who was the owner of the contraband, preferred the appeal. It was

contended that the entire action of seizure and sampling was illegal as it was done

in violation of the mandatory provisions of Section 52A[2] of the NDPS Act as the

procedure prescribed therein was not followed in seizing the alleged narcotic

substance and drawing the samples. The NCB contended that the search was

carried out in presence of a Gazetted Officer and after seizure, two samples from

each packet were drawn and packed separately and were sealed by affixing the

Page 60 of 74

seal of the NCB. It was in the above background, the Hon’ble Supreme Court has

held as under :-

12. A simple reading of the aforesaid provisions, as also

stated earlier, reveals that when any contraband/narcotic

substance is seized and forwarded to the police or to the

officer so mentioned under Section 53, the officer so

referred to in sub-section [1] shall prepare its inventory

with details and the description of the seized substance

like quality, quantity, mode of packing, numbering and

identifying marks and then make an application to any

Magistrate for the purposes of certifying its correctness

and for allowing to draw representative samples of such

substances in the presence of the Magistrate and to certify

the correctness of the list of samples so drawn.

13. Notwithstanding the defence set up from the side of the

respondent in the instant case, no evidence has been brought

on record to the effect that the procedure prescribed under

sub-sections [2], [3] and [4] of Section 52A of the NDPS

Act was followed while making the seizure and drawing sample

such as preparing the inventory and getting it certified by

the Magistrate. No evidence has also been brought on record

that the samples were drawn in the presence of the

Magistrate and the list of the samples so drawn were

certified by the Magistrate. The mere fact that the samples

were drawn in the presence of a gazetted officer is not

sufficient compliance of the mandate of sub-section [2]

of Section 52A of the NDPS Act.

14. It is an admitted position on record that the samples

from the seized substance were drawn by the police in the

presence of the gazetted officer and not in the presence of

the Magistrate. There is no material on record to prove that

the Magistrate had certified the inventory of the substance

seized or of the list of samples so drawn.

Page 61 of 74

15. In Mohanlal’s case, the apex court while dealing

with Section 52A of the NDPS Act clearly laid down that it

is manifest from the said provision that upon seizure of the

contraband, it has to be forwarded either to the officer-in-

charge of the nearest police station or to the officer

empowered under Section 53 who is obliged to prepare an

inventory of the seized contraband and then to make an

application to the Magistrate for the purposes of getting

its correctness certified. It has been further laid down

that the samples drawn in the presence of the Magistrate and

the list thereof on being certified alone would constitute

primary evidence for the purposes of the trial.

16. In the absence of any material on record to establish

that the samples of the seized contraband were drawn in the

presence of the Magistrate and that the inventory of the

seized contraband was duly certified by the Magistrate, it

is apparent that the said seized contraband and the samples

drawn therefrom would not be a valid piece of primary

evidence in the trial. Once there is no primary evidence

available, the trial as a whole stands vitiated.

17. Accordingly, we are of the opinion that the failure of

the concerned authorities to lead primary evidence vitiates

the conviction and as such in our opinion, the conviction of

the appellant deserves to be set aside. The impugned

judgment and order of the High Court as well as the trial

court convicting the appellant and sentencing him to

rigorous imprisonment of 10 years with fine of Rs. 1 lakh

and in default of payment of fine to undergo further

imprisonment of one year is hereby set aside.

[b] Criminal Appeal no. 451 of 2011 and Criminal Appeal no. 1185 of 2011 :

Bothilal vs. Intelligence Officer, Narcotics Control Bureau : 2023 SCC

OnLine SC 498 : Decided on 26.04.2023

Page 62 of 74

Facts : An Intelligence Officer [I.O.], NCB, South Zonal Unit, Chennai received

information on 16.05.2002 and based on the information, the I.O. along with staff

of NCB and two independent witnesses conducted a raid at a room in a hotel

where the accused, A-4 was staying. During the raid, the accused persons, A-1 to

A-3 were found present in the said room apart from A-4. From the room, a bag

containing narcotic substance [heroin] weighing 5.067 kgs was seized. Out of the

accused persons, A-1 and A-3 were convicted inter alia for the offence under

Section 8[c] r/w Section 21[c] and Section 29 of the NDPS Act by the trial court.

When they [A-1 and A-3] preferred appeals before the High Court, the High Court

dismissed the appeals confirming the conviction. The sentence imposed on them

were, however, reduced to 10 years. The other to accused persons, A-2 and A-4

were also convicted for different offences punishable under the NDPS Act. Before

the Hon’ble Supreme Court in the two criminal appeals preferred by the two

accused persons, A-1 and A-3, it was argued that the Officer who seized the bags

containing alleged contraband, drew representative samples of the contraband. It

was contended that the Officer had no power to do so and it could have been

done only under the permission of the Magistrate in accordance with Clause [c] of

sub-section [2] of Section 52A. It was contended that only the samples drawn

under sub-section [2] of Section 52A and certified by the Magistrate could be

treated as primary evidence in respect of an offence under the NDPS Act. Reliance

has been placed in the decision in Union of India vs. Mohan Lal, [2016] 3 SCC

379. The Hon’ble Supreme Court of India has observed in the following manner :-

15. Admittedly, PW2 drew two samples from each of the

packets of the contraband found in the hotel room and kept

them in two separate plastic covers. These covers were

sealed and the remaining contraband was also sealed. Thus,

the prosecution claims that the samples were prepared even

before the packets were sent to the Station House Officer.

The submission of the learned senior counsel appearing for

the appellant in Criminal Appeal 451 of 2011 was that a

grave suspicion is created about the prosecution’s case as

this action by the P.W.2, was contrary to Section 52A of

NDPS Act.

Page 63 of 74

16. In paragraphs 15 to 17 of the Mohanlal’s case, [2016] 3

SCC 379; it was held thus :

* * * * *

17. Thus, the act of P.W.2 of drawing samples from all the

packets at the time of seizure is not in conformity with

what is held by this Court in the case of Mohanlal, [2016] 3

SCC 379. This creates a serious doubt about the

prosecution’s case that the substance recovered was

contraband.

[c] Mangilal vs. State of Uttar Pradesh : 2023 INSC 634 : [2023] 10 SCR 517

: Decided on 12.07.2023.

Facts : The appellant was charged and convicted under Section 8[b] r/w Section

15[c] of the NDPS Act by the Special Court and he was sentenced to undergo

rigorous imprisonment for ten years. The conviction was confirmed by the High

Court when the appellant preferred an appeal. It was on the basis of an

information received through a telephonic message on 20.05.2010 that the

appellant and a co-accused [died during trial] were in the process of supplying

narcotic substance [poppy straw], an Assistant Sub-Inspector of Police with his

staff, without wasting time on the procedural compliance, stopped a tractor in

which bags containing the contraband were found and the bags were seized. A

Panchnama was written at the place of occurrence, samples were also taken at the

place of occurrence and the reason for arrest of the accused persons were

informed to them. Thereafter, a case, Crime no. 53/2010 under Section 8[b] r/w

Section 15[c], Section 25 and Section 29 of the NDPS Act was registered and a

final report was filed before the jurisdictional court on 13.09.2010. Before the

Hon’ble Supreme Court, reliance is placed in Union of India vs. Mohan Lal,

[2016] 3 SCC 379. In Mangilal [supra], the Hon’ble Supreme Court as regards

the provisions contained in Section 52A of the NDPS Act, has observed as under :-

Page 64 of 74

4. Sub-section [1] of Section 52A of the NDPS Act

facilitates the Central Government a mode to be prescribed

to dispose of the seized narcotic substance. The idea is to

create a clear mechanism for such disposal both for the

purpose of dealing with the particular case and to safeguard

the contraband being used for any illegal purpose

thereafter.

5. Sub-section [2] of Section 52A of the NDPS Act

mandates a competent officer to prepare an inventory of such

narcotic drugs with adequate particulars. This has to be

followed through an appropriate application to the

Magistrate concerned for the purpose of certifying the

correctness of inventory, taking relevant photographs in his

presence and certifying them as true or taking drawal of

samples in his presence with due certification. Such an

application can be filed for anyone of the aforesaid three

purposes. The objective behind this provision is to have an

element of supervision by the Magistrate over the disposal

of seized contraband. Such inventories, photographs and list

of samples drawn with certification by Magistrates would

constitute as a primary evidence. Therefore, when there is

non-compliance of Section 52A of the NDPS Act, where a

certification of a magistrate is lacking any inventory,

photograph or list of samples would not constitute primary

evidence.

6. The obvious reason behind this provision is to inject

fair play in the process of investigation. Section 52A of

the NDPS Act is a mandatory rule of evidence which requires

the physical presence of a Magistrate followed by an order

facilitating his approval either for certifying an inventory

or for a photograph taken apart from list of samples drawn.

In due compliance of Section 52A[1] of the NDPS Act the

Ministry of Finance [Department of Revenue] issued a

Notification No. G.S.R. 339[E] dated 10.05.2007 which

Page 65 of 74

furnishes an exhaustive manner and mode of disposal of drugs

ending with a certificate of destruction :

* * * * * * * * * *

7. To be noted, the aforesaid notification was in

existence at the time of the commission of the offence

alleged in the case on hand, stood repealed with effect from

23.12.2022 vide Notification No. G.S.R.899[E]. In any case a

notification issued in derogation of the powers conferred

under sub-section [1] of Section 52A of the NDPS Act can

never contradict the main provision, particularly sub-

Section [2]. However, any guideline issued by way of a

notification in consonance with Section 52A of the NDPS Act

has to be followed mandatorily.

8. Before any proposed disposal/destruction mandate of

Section 52A of the NPDS Act requires to be duly complied

with starting with an application to that effect. A Court

should be satisfied with such compliance while deciding the

case. The onus is entirely on the prosecution in a given

case to satisfy the Court when such an issue arises for

consideration. Production of seized material is a factor to

establish seizure followed by recovery. One has to remember

that the provisions of the NDPS Act are both stringent and

rigorous and therefore the burden heavily lies on the

prosecution. Non-production of a physical evidence would

lead to a negative inference within the meaning of Section

114[g] of the Indian Evidence Act, 1872 [hereinafter

referred to as the Evidence Act]. The procedure

contemplated through the notification has an element of fair

play such as the deposit of the seal, numbering the

containers in seriatim-wise and keeping them in lots

preceded by compliance of the procedure for drawing

samples. ....

Page 66 of 74

[d] CRIMINAL APPEAL NO.1443 OF 2023 : SIMARNJIT SINGH vs. STATE

OF PUNJAB : 2023 SCC OnLine SC 906 : 2023 LiveLaw [SC] 570 :

Decided on 09.05.2023.

Facts : When a Sub-Inspector of Police along with other Police Officers was doing

patrolling duty at a bridge on a canal, a tempo carrying two occupants was

intercepted. Thereafter, a search was conducted in presence of the District

Superintendent of Police. The search led to recovery of 8 bags of poppy husk

which were concealed under tarpaulin. From each bag, two samples of 250 grams

were taken and made into 16 parcels. The residue of poppy husk in each bag was

found to be 29.5 kgs. The appellant was convicted by the Special Judge for the

offence under Section 15 of the NDPS Act and the appeal preferred before the

High Court was also dismissed. Before the Hon’ble Supreme Court, it was

submitted that the prosecution was vitiated as the work of drawing sample was

done by the concerned officer, P.W.7 without taking resort to sub-section [2] of

Section 52A of the Evidence Act and it was pointed out that the samples were

drawn by P.W.7 immediately after the seizure. In such backdrop, the Hon’ble

Supreme Court has held as under :-

7. We have perused the evidence of PW-7 Hardeep Singh in

which he has stated that from the eight bags of poppy husk,

two samples of 250 gms each were drawn and converted into 16

parcels. This has been done immediately after the seizure.

8. In paragraphs 15 to 17 of the decision of this Court in

Mohanlal's case, it was held thus:

* * * * *

9. Hence, the act of PW-7 of drawing samples from all the

packets at the time seizure is not in conformity with the

law laid down by this Court in the case of Mohanlal, [2016]

3 SCC 373. This creates a serious doubt about the

prosecution's case that substance recovered was a

contraband.

Page 67 of 74

10. Hence, the case of the prosecution is not free from

suspicion and the same has not been established beyond a

reasonable doubt. Accordingly, we set aside the impugned

judgments in so far as the present appellant is concerned

and quash his conviction and sentence.

11. The appeal is accordingly allowed.

[e] Mohammed Khalid and another vs. the State of Telangana : 2024 INSC

158 : [2024] 5 SCC 393 : Decided on 01.03.2024.

Facts : The appellants [A-1, A-2, A-3 and A-4] were convicted under Section 8[c]

r/w Section 20[b][ii][C] of the NDPS Act by the Special Court and they were

sentenced to undergo rigorous imprisonment for ten years each and to pay a fine

of Rs. 1,00,000/- each, with default stipulation. During pendency of the appeal

before the High Court, A-1 expired. The prosecution case was that on receipt of a

credible information on 08.05.2009 regarding transportation of Ganja by two

persons in a Toyota Qualis vehicle, the said vehicle with A-1 and A-2 as its

occupants, was intercepted. A search proceeding was conducted in presence of a

Gazetted Officer and independent witnesses. Three bundles of Ganja weighing

around 80 kgs found lying in the vehicle were seized. A-1 and A-2 were

interrogated at the spot. Three samples weighing about 50 grams were drawn

from each bundle of contraband and remaining muddamal Ganja was seized vide a

confession-cum-seizure panchanama. One part of the sample was handed over to

A-1 and A-2. One part of sample collected from the recovered contraband was

forwarded to the Forensic Science Laboratory [FSL] wherefrom a report was

received concluding that the sample was of Ganja as defined under Section 2[b] of

the NDPS Act. It was after the conviction by the Special Court, the appeals were

preferred before the High Court and after rejection of those appeals, two appeals

were preferred by A-2, A-3 and A-4 before the Hon’ble Supreme Court. It emerged

from the evidence on record that the Seizure Officer [P.W.1] collected three

samples of Ganja at the spot. On the said procedure, the Hon’ble Supreme Court

has observed as under :-

Page 68 of 74

22. Admittedly, no proceedings under Section 52A of the

NDPS Act were undertaken by the Investigating Officer, PW-5

for preparing an inventory and obtaining samples in presence

of the jurisdictional Magistrate. In this view of the

matter, the FSL report [Exhibit P-11] is nothing but a waste

paper and cannot be read in evidence. .....

62. From a survey of the background facts and the observations made in respect of the

afore-mentioned decisions, it is clearly discernible that the events of search,

recovery and seizure of the contraband as well as of drawing of samples from

seized contraband in those cases, occurred prior to the decision rendered in

Mohanlal [supra] on 28.01.2016. The decisions were rendered by the Hon’ble

Supreme Court after the verdicts of the trial court and the first appellate court, that

is, the jurisdictional High Court. It is trite legal position that appellate jurisdiction is

co-extensive with the original court’s jurisdiction as far as evaluation and

appreciation of evidence and reaching finding on facts and the appellate court is

free to reach its own conclusion on evidence notwithstanding any finding reached

by the trial court. An appeal is considered to be in continuation of the original

proceedings; and by way of an appeal, the entire proceedings are before the

appellate court. A court exercising the appellate power has obligation not only to

consider the questions of law but also to consider the questions of fact. The

appellate court has the responsibility to analyse the evidence particularly when the

offence alleged is of a serious nature and the offender has been visited with heavy

punishment, at least, in the form of sentence. The rendering of the afore-

mentioned decisions on the dates, quoted above, has clearly pointed towards the

proper procedure about drawing of samples from seized contraband and also about

the consequence for not drawing samples in the manner prescribed by the

statutory prescription contained in Section 52A[2] of the NDPS Act.

63. By Notification bearing no. G.S.R.899[E] dated 23.12.2022, the Central

Government in exercise of powers conferred by Section 76 read with Section 52A

of the NDPS Act has framed a set of rules, the Narcotic Drugs And Psychotropic

Substances [Seizure, Storage, Sampling and Disposal] Rules, 2022 . Chapter

III : ‘Sampling’ has provided for the procedure for drawing samples from seized

Page 69 of 74

contraband in conformity with the procedure laid down in sub-section [2] of

Section 52A of the NDPS Act. By Rule 29 : ‘Repeal and Savings’, the statutory

notification, Standing Order no. 1/89 dated 13.06.1989 has been repealed with the

provision that notwithstanding such repeal, anything done or any action taken or

purported to have been done or taken under the Standing Order no. 1/89 shall be

deemed to have been done or taken under the corresponding provision of the said

rules. It may be mentioned that the Standing Order no. 1/89 had, apart from

dealing on seizure and sampling, had also dealt with matters of storage, disposal,

etc. of seized contraband. Even such repeal and saving clause would not save and

salvage an incident of drawing of samples from seized contraband on the spot from

illegality as the statutory prescription as regards the manner of drawing of samples

is in existence in Section 52A[2] on and from 29.05.1989, the date when Section

52A was inserted in the NDPS Act for ‘narcotic drugs’. It requires a mention again

that a set of rules in the nature of subordinate legislation cannot prevail over the

governing statute.

64. Reverting back to the case in hand, the prosecution has contended that an

Inventory of the Goods Seized [Ext.-2] was prepared following due procedure and

the said Inventory of Goods Seized [Ext.-2] was duly ‘seen’ by the Magistrate. As

such, there was due compliance of the procedure prescribed in Clause [a] of sub-

section [2] of Section 52A of the NDPS Act. From a look at the Inventory of Goods

Seized, exhibited as Ext.-2, it is noticed that the same was marked as ‘seen’ by the

learned Chief Judicial Magistrate, Kamrup [M], Guwahati on 06.12.2014. There is

distinction between something ‘seen’ and something ‘certified’. Ordinarily, ‘seen’

means perceiving something with the eyes; discerning something visually. On the

other hand, if one certifies something it means he has attested or confirmed in a

formal statement. Certificate means an official document attesting a fact. Thus,

certificate is associated with a more responsible act.

65. From the evidence/materials on record, it has not emerged that on any date after

06.12.2014, the respondent Customs authorities had applied before the Magistrate

for certifying the correctness of the Inventory of Goods Seized [Ext.-2] so

prepared, after search, recovery and seizure of the contraband substance,

Page 70 of 74

Cannabis [Ganja] weighing 1093.68 kg. It is a fact that the respondent Customs

authorities had, during the trial, produced and exhibited physical evidence in the

form of 29 HDPE packages, seized on 05.12.2014, as Mat. Ext.-1 to Mat. Ext.-29.

From production of Mat. Ext.-1 to Mat. Ext.-29 during the trial, it is discernible that

the prosecution did not dispose of the seized contraband, Cannabis [Ganja] till

that stage of the trial following the procedure laid down in Section 52A[1] of the

NDPS Act and the Standing Order no. 1/89. One of the reasons for non-disposal of

the seized contraband, Cannabis [Ganja] can be prima facie made relatable to

non-compliance of the procedure laid down in Clause [a], Clause [b] and Clause

[c] of Section 52A[2] of the NDPS Act as without following the procedure laid

down therein, disposal of seized contraband substance is not permissible under

sub-section [1] of Section 52A of the NDPS Act.

66. From the prayer made in the application dated 06.12.2014, filed before the Court

of learned Chief Judicial Magistrate, Kamrup [Metro], Guwahati, it is clearly

evident that there was no prayer made to the learned Magistrate to certify the

correctness of the Inventory of Goods Seized [Ext.-2]. Prayer was made only for

seeing the Inventory of Goods Seized [Ext.-2]. In the said application dated

06.12.2014, it was made clear that samples were already drawn from the seized

contraband substance, Cannabis [Ganja] and a prayer was made only to ‘see’ the

samples drawn from the seized contraband substance, Cannabis [Ganja]. It is also

clear that no application was made before the learned Magistrate for the purpose

of taking photographs of seized contraband substance, Cannabis [Ganja] in his

presence and for certifying such photographs as true ones. It is also evident that

no application was made before the learned Magistrate on that day, that is,

06.12.2014 for the purpose of allowing to draw representative samples from the

29 HDPE packets suspected to have contained Cannabis [Ganja] in his presence

and for certifying the correctness of any list of samples so drawn. The prosecution

side has not been able to bring any evidence/material on record to indicate that

there was an application for allowing to draw representative samples from the 29

HDPE packets suspected to have contained Cannabis [Ganja] and for certifying the

correctness of any list of samples so drawn. In the absence of any such

application filed under sub-section [2] of Section 52A of the NDPS Act, there is no

Page 71 of 74

question of the Magistrate to allow any application under sub-section [3] of

Section 52A of the NDPS Act.

67. If the procedure laid down in sub-section [2] and sub-section [3] of Section 52A is

complied with and on an application being made, the Magistrate issues the

certificates contemplated by sub-section [2], then sub-section [4] of Section 52A

has laid down that, notwithstanding anything to the contrary contained in the

Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such

inventory, photographs of the seized contraband substance taken before the

Magistrate and certified by him, and the list of samples drawn in presence of the

Magistrate whose correctness has been certified by him, would be treated as

primary evidence in respect of an offence under the NDPS Act in the trial by the

concerned Special Court.

68. In view of such mandate as regards presenting primary evidence before the trial

court, obligation was clearly cast on the prosecution to produce and exhibit,

firstly, the Inventory of Goods Seized [Ext.-2], that is, Cannabis [Ganja] weighing

1093.68 kgs, with due certification of the Magistrate as regards the correctness of

such Inventory; secondly, the photographs of the seized contraband, Cannabis

[Ganja], which were taken before the Magistrate and with due certification of such

photographs as true from him; and thirdly, the list of samples drawn from the

seized contraband, Cannabis [Ganja] and a certificate from the Magistrate

regarding the correctness of the list of samples so drawn; under sun-section [2] of

Section 52A of the NDPS Act as primary evidence in order to bring home the

charge under Section 20[b][ii][C] of the NDPS Act against the two accused

persons, A-1 and A-2 in the trial of NPDS Case no. 24 of 2015.

69. When the documentary evidence and the material exhibits produced during the

course of the trial before the learned Special Court are examined in the above

backdrop, it is found that the Inventory of Goods Seized [Ext.-2] bears no

certification of the Magistrate as regards its correctness. The prosecution did not

exhibit any photographs of the seized contraband substance, Cannabis [Ganja]

which were taken in presence of the Magistrate and were certified by the

Page 72 of 74

Magistrate as true. Since no samples were drawn from the seized contraband

substance before the Magistrate, there is no question of certifying the correctness

of any list of samples so drawn by the Magistrate.

70. It is now a settled position that the object and purport behind the procedure laid

down in Section 52A of the NDPS Act is to inject the element of fair play in the

process of investigation and to leave out any chance of foul play. It has been held

in Mangilal [supra] that when there is non-compliance of Section 52A of the NDPS

Act and where a certificate of a Magistrate is lacking, any inventory, photographs

or list of samples would not constitute primary evidence. Section 52A has been

held to be a mandatory rule of evidence requiring the physical presence of the

Magistrate followed by an order facilitating his approval either for certifying an

inventory or for a photograph taken, apart from the list of samples drawn. From

the decision in Mohanlal [supra] and also from the decisions, enumerated in

paragraph 60 hereinabove, it is found to be settled that in the absence of any

evidence/materials on record establishing that the samples of the seized

contraband were drawn in presence of the Magistrate and the correctness of the

list of samples so drawn duly certified by the Magistrate any samples drawn

dehores the said procedure would not be treated as a valid piece of primary

evidence in the trial and when it is found that there is no primary evidence

available, the trial as a whole, would vitiate. It has been also settled that if no

proceedings under Section 52A of the NDPS Act were undertaken by the

investigating agency for obtaining samples in presence of the jurisdictional

Magistrate, the chemical examination report given as regards the contraband

substance seized cannot also be read into evidence.

71. Upon evaluation of the evidence/materials led by the prosecution during the

course of the trial, it is found that the prosecution had failed to lead primary

evidence in the form of [i] an Inventory of the seized contraband substance,

Cannabis [Ganja] weighing 1093.68 kgs; [ii] photographs of such seized

contraband substance, Cannabis [Ganja] taken in presence of the Magistrate; and

[iii] the list of samples drawn; with due certification from the Magistrate; before

the learned Special Court in terms of the statutory prescription set forth in sub-

Page 73 of 74

section [2] read with sub-section [4] of Section 52A of the NDPS Act. Though the

prosecution has produced the seized contraband substance, Cannabis [Ganja] in

29 HDPE packets weighing 1093.68 kgs as Mat. Ext.-1 to Mat. Ext.-29 before the

learned trial court, it had not led any evidence as regards the manner in which

they were kept during the period from the date of seizure till their production

before the Court at the subsequent date. Be that as it may, the decision in

Mohanlal [supra] has clarified the real position as regards Section 52A in view of

presence of a contradictory notification in the form of the Standing Order no.

1/89, as regards drawing of samples from the seized contraband substance. It is

pertinent to mention that other than the manner as laid down in Clause [c] of sub-

section [2] of Section 52A of the NDPS Act as regards drawing of samples from

seized contraband substance for the purpose of chemical examination, the NDPS

Act has not envisages any other permissible mode of drawing of samples from

seized contraband substance. In absence of the primary evidence on the points of

drawing of sample in presence of the Magistrate and of certification of the list of

samples so drawn, the evidence regarding giving of positive test for Cannabis

[Ganja] by the FSL/DFS vide its Report [Ext.-3] cannot also be read into evidence.

In such obtaining fact situation, the other evidence led by the prosecution cannot

be held to be sufficient to prove the charge framed against the accused-

appellants, A-1 and A-2 beyond all reasonable doubt.

72. The upshot of the discussion made above and the reasons assigned therein is that

in view of presence of material irregularities creating serious doubt in the case of

the prosecution and the failure on the part of the prosecution to lead vital primary

evidence on the aspects above especially on the aspects of drawing of samples,

the case of the prosecution has become a case not free from suspicion and doubt.

The learned Special Court appears to have not noticed the material infirmity in the

case of the prosecution qua Section 52A of the NDPS Act and as a result, has

fallen into error in returning the finding of guilt against the two accused persons,

A-1 and A-2. Since the offences under the NDPS Act are serious in nature and

have prescribed stringent punishment, compliance with the statutory prescriptions

and procedures contained therein shall also have to be strict and scrutiny is also

stringent. It is also a settled proposition of law in the case of doubt, the benefit of

Order downloaded on 24-12-2024 06:00:03 PMPage 74 of 74

doubt, at all stages, goes in favour of the accused. Once it is established that the

prosecution has failed to lead vital primary evidence, as a corollary, the trial as a

whole, would stand vitiated. For the same, the accused persons in the case in

hand, A-1 and A-2 are clearly entitled to the benefit. As a result, we find that the

impugned judgment and order of conviction and sentenced passed by the learned

Special Court is not sustainable in law and the same is deserved to be set aside.

73. In view of the finding reached above on the aspect of failure to lead primary

evidence in the matter of drawing sample, it is found not necessary to examine on

the issue of validity or otherwise of the charge framed and on the issue of causing

prejudice or not.

P. Order :-

74. Accordingly, the following order is passed :-

[i] The impugned Judgment and Order dated 03.10.2016 passed by the learned

Special Court in NDPS Case no. 24 of 2015 is set aside.

[ii] Both the accused-appellants, A-1 and A-2 are acquitted of the charge under

Section 20[b][ii][C] of the NDPS Act.

[iii] Both the criminal appeals, Criminal Appeal no. 67/2019 and Criminal Appeal no.

283/2017 are allowed.

[iv] The accused-appellants, A-1 and A-2 are to be released forthwith from custody if

their detention are not required in connection with any other case or for any other

purpose.

[v] The fine amount, if any, deposited by the accused-appellants, A-1 and A-2 shall be

refunded to them.

75. The Registry to send back the case records to the Special Court forthwith.

JUDGE JUDGE

Comparing Assistant