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GAHC030002822026

THE GAUHATI HIGH COURT

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

Case No. : Crl.A. No. 7 of 2026

Shri. Abdul Mukit (35 years)

s/o Abdul Rahim

R/o Badarkuna, Karimganj, Assam

…. Appellant

-VERSUS-

State of Mizoram & Anr

.…Respondents

Advocate for the appellant : Mr. S. Vanlalhriata, Adv.

Advocate for the respondents : Mrs. Mary L. Khiangte, Addl. PP

:::BEFORE:::

HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA

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Date on which judgment is reserved : 24.08.2026.

Date of pronouncement of judgment : 30.09.2026.

Whether the pronouncement is of the

Operative part of the judgment : NA

Whether the full judgment has been

Pronounced : Yes

Judgment &Order(CAV)

Heard Mr. S. Vanlalhriata, learned counsel for the appellant. Also heard Mrs.

Mary L. Khiangte, learned Additional Public Prosecutor for the State.

2. This appeal under Section 415(2) of the BNSS is directed against the

impugned Judgment dated 17.09.2025 and Sentence Order dated 23.09.2025

passed by the Special Court, ND&PS Act, Champhai in Criminal Trial No. 57/2021

arising out of Champhai P.S. Case No. 8/2021 dated 22.02.2021 convicting the

appellant under Section.

3. Brief story of the case of the prosecution is that a written FIR was

submitted by SI C. Lalsangliana on 22.02.2021 @ 3:45pm stating that staff of

Champhai Police Station conducted random checking at HringlangTlang

Junction, Zokhawthar road and halted one vehicle Alto 800 Car B/R No. AS-01B-

1467 belonging to Abul Hussain (35) S/o Loimia of Bandarkuna, Karimganj

Assam, which was driven by Abdul Mukit (30) S/o Abdur Rahim of Bandarkuna,

Karimganj Assam on suspicious ground. On thorough checking of the vehicle, a

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black polythene was found and inside it, there were four(4) brown boxes

containing five(5) bundles wrapped in cello-tape containing ten(10) sachets and

inside the sachets, small tablets suspected to be methamphetamine (40,000

tablets in number) were present which was seized by preparing seizure memo in

the presence of witnesses from the driver Abdul Mukit (30) S/o Abdur Rahim of

Bandarkuna, Karimganj, Assam i.e., the present appellant. The seizure

witnesses’ statements were also recorded. The seized contraband items

weighted 4.372 kgs and was worth Rs. 12,000,000/- (approx) in local market.

The seized contraband items were kept in ND&PS Malkhana vide MR No.

01/2021. Hence, Champhai PS Case No. 08/2021 dated 22.02.2021 u/s

22/25/29 ND&PS Act was registered and investigated into.

4. After completion off investigation, the IO submitted the charge sheet. The

learned Trial Court after hearing prosecution and defence and on finding a prima

facie case framed charges against the appellant and another accused, Abul

Husain under section 22(c)/25 of the ND&PS act to which they pleaded not

guilty and claimed to be right.

5. The prosecution examined 5 nos of witnesses at the end of which the

accused persons were examined under section 313 CrPC where after the

accused persons adduced defence evidence as DW Nos. 1 & 2.

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6. Upon consideration of the material on record and upon herein the

prosecution and defence, one of the accused, Abul Hussain was acquitted

whereas the present appellant Abdul Mukit was convicted and sentenced as

aforesaid.

7. At this stage, the evidence of the case may be discussed.

8. PW-1, SI, C. Lalsangliana is the complainant in the instant case. He

deposed that he knew the accused persons. On the evening of 22.02.2021, he

and his party conducted random checking at Hringlangtlang Peng. While on duty

at around 3:45 pm, one Alto Car Bearing Regn No. AS01B-1467, driven by

accused No. 2, Abdul Mukit was halted on suspicious ground. On seeing black

polythene inside the vehicle, he found that the vehicle might conceal some

contraband articles. He called upon two civilian witnesses from Zotlang,

Champhai and Mualkawi through telephone. After the civilian witnesses had

reached the place of occurrence, he prepared grounds of belief on the spot and

he conducted checking over the said vehicle. He recovered a black polythene

which was kept in between the front seat and the back seat inside the vehicle.

When he opened, there was four numbers of brown boxes which contained five

bundles which were wrapped in a cello-tape containing 10 sachets and inside

the sachets, there were 40,000 tablets of Methamphetamine. In presence of the

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civilian witnesses, weighing and sealing were done on the spot and the total

weight was 4.372 kgs. He apprehended the accused Abdul Mukit and seized the

contraband items after preparing Seizure Memo in presence of civilian witnesses

also seized the vehicle Alto Car Bearing Regn No. AS01B-1467 on the spot. After

completing formalities, he produced the seized items and the apprehended

person Abdul Mukit before Officer-in-Charge, Champhai Police Station and also

submitted the FIR. He interrogated the apprehended Abdul Mukit from

Champhai Police Station who stated that the contraband substances belong to

Abul Hussain, the owner of the said vehicle. Hence, on the strength of the

statement of accused Abdul Mukit, Abul Hussain was brought from Melbuk and

produced at Champhai Police Station and the formal arrest was done by SI P.

Vanlalhruaitluanga. He exhibited the information in writing, authorisation from

Officer in charge, Champhai Police Station, seizure memo, report of seizure and

arrest, grounds of beliefs, and his various signatures on the said document.

On cross examination, he deposed that the colors of the seized articles are

pink and there were two tablets that were green in color. Abul Hussain was

apprehended solely on the strength of the statement made by co-accused Abdul

Mukit. He did not check the documents of the seized vehicle so as ascertain the

real owner of the vehicle. The seized articles were not hidden in the vehicle, it

was kept in between the front seat and the back seat. There is no indication

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that his superior officer had received the report of Seizure and Arrest. There is

no indication to show that the copy of Grounds of Belief recorded by him been

was sent to his superior officer. His team detained the seized vehicle and they

informed him through telephone and he proceeded to the place of occurrence

along with the civilian witnesses. He did not remember the exact time when his

team informed him about the detained seized vehicle from where the seized

articles were recovered but the sun had not set. He prepared his Information in

Writing u/s 42(1) of ND&PS Act at 6:20pm which was after recovery of the

seized articles and there was no indication that his superior officer had received

the above-mentioned Information in Writing.

9. PW-2, Hmarthangvunga identified the accused. He is a seizure witness in

the instant case. He deposed that on 22.02.2021, at around 3:00 PM, he

received request from the Seizing Officer that they were about to conduct

checking at Hringlangtlang junction, Champhai-Zokhawthar road, Mualkawi area

and asked him to witness search and to witness seizure in case recovery is

made. He proceeded to the duty place and in his presence, the seizing officer

Pu Sangliana said "let us now conduct search" and then the seizing team

conducted search on the conveyance of the two accused persons i.e, one Alto

car and recovered 40,000 tablets of methamphetamine weighing 4.375 grams.

To be more specific, the seized articles were kept inside one polythene and

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packed in 4 brown boxes and the seized articles were kept between the front

and rear seat of the vehicle and it was covered up with one areca nut bag on

the above. In fact, when the seizing officer conducted search on the polythene

and discovered that it contains contraband items, he directed the accused to

take out the seized articles by themselves. Throughout the whole operation,

body search was not conducted. He also witnessed counting, weighment,

packaging and sealing. All the tablets were thoroughly counted one by one and

as it took so long, he still can recall the moment. As he witnessed the seizure

with his own eyes, he put his signature on the Seizure Memo which he

exhibited.

On cross examination, he deposed that the vehicle was situated just next

to the tea stall on the-road side of higher ground. When they reached the p/o

the police were already there. The seized articles were kept on the foot rest of

the left back seat and it was kept inside a black polythene. The color of the

seized articles were that of the color of lentils i.e, pinkish red (dailuah) and that

was the only color that he knows of. The seized articles were counted one by

one.

10. PW No. 3, C. Lalchhuanliana identified the accused. He is another seizure

witness in the instant case and he deposed similarly as PW No. 2. He exhibited

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his signature on the seizure memo.

On cross examination, he deposed that Abdul Mukit is the driver of the

Motor Vehicle. The Police Officers counted the seized articles one by one. As far

as his knowledge is concerned, the Police Officials counted all the 40,000 tablets

of the seized articles at the Place of Occurrence. As far as he can remember, the

seized articles are different in color. The Police Officials on duty wore uniform.

When they reached the Place of Occurrence, the seizing team, without

conducting search upon the vehicle directly opened the bonnet cover and the

seized article can be seen.

11. PW No. 4, Lalmuanawma, Asst. Director, FSL Aizawl deposed that he and

Dr. Lawmzuali, Jr. Scientific Officer conducted scientific examination on each of

the exhibits as per the existing standard protocol and confirm that all the

exhibits CHE(CPI-69(1) to CHE (CPI)-69(20) were found to be

Methamphetamine. He exhibited the FSL report and his signature on it. Cross

examination was declined by Ld. Counsel for the accused persons.

12. PW No. 5, who is the IO of the case deposed the different steps that he

had taken during the course of investigation including the fact that the seized

articles were produced before the Learned CJM, Champhai on 23.02.2021 where

in the inventory was found to be correct, and photographs were taken and

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samples were drawn, packed and sealed for laboratory examination.

Subsequently, upon receipt of the FSL report, confirming the presence of

methamphetamine in the samples examined by it, the IO submitted charge

sheet against the accused persons.

During cross examination, he deposed that he did not remember the

driver of the motor vehicles from where the seized articles were recovered, nor

does he remember the number of sachets present inside one box. He took the

samples for the examination from each of the satchets. He did not remember

how many numbers of tablets were inside the sachets, but it was around 200

tablets. There were green color tablets among the seized the articles, but he did

not know how many and also did not remember whether the green color tablets

where sent to FSL or not. He also did not know whether the seized articles were

already disposed of and did not see the same before the court.

13. During his examination under Section 313 CrPC, the appellant admitted

the fact of interception of his vehicles by the police, and the seizure of the

seized articles there from, but explained that one Non-Mizo person had sent the

seized articles describing them as motor spare parts to be delivered in Aizawl.

Further, during his deposition as DW No. 1, the appellant stated that on the year

2021, he came to Champhai Melbuk to work on construction of a building

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owned by Pu C. Zarzoliana of Melbuk and that he was hired by Adul Hussain to

act as his driver and his helper and that they have been to (SIC) Melbuk ever

since. The seized vehicle in the instant case was in need of repairing and that

he was told by Abul Hussain to travel to Aizawl to fix his car. As he was about to

leave for Aizawl, one Non-Mizo person approached him and requested him to

deliver a package for him at Aizawl and told him that it was motor vehicle parts.

Since he used to see him at Melbuk although they don't exactly know each

other and since he was heading to Aizawl as well, he accepted the package as

he stated it was motor parts and gave him free of charge unknowingly the

articles present in the package and he placed it next to his seat. As he

approached the check gate at Khankawn, the arresting authorities checked the

vehicle and recovered the package/articles. He had no knowledge of the seized

articles present in such package and had no involvement of any illegal intention

to transport the seized articles.

On cross examination, he deposed that he was the driver the Seized

Vehicle and the transporter of the Seized Articles. The weighment was done by

the Police Personnel in his presence who counted the entire tablet at the place

of occurrence. He did not have any passenger, and no other person was present

in the place of occurrence. He did not lodge FIR or any Complaint before the

Magistrate on the false allegation made against him.

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14. The other co-accused, Abul Hussain during his examination under Section

313 as also in his evidence as DW No. 2 denied any knowledge of the seized

articles and explained that he had sent the appellant, who was his driver to

travel to Aizawl and purchase necessary parts to fix the damage parts of his car,

i.e., the seized vehicle. Subsequently, he came to know about the arrest of the

appellant.

15. Mr. S. Vanlalhriata, learned counsel for the appellant, referring to the cross

examination of PW No. 1, pointed out that according to the version of PW No. 1,

after his team had detained the seized vehicle, they informed him through

telephone and he proceeded to the place of occurrence along with the civilian

witnesses, and that he prepared his information in writing under Section 42 (1)

of the ND&PS Act at 6:20 p.m., which was after recovery of the seized vehicles

and that there was no indication that his Superior Officer had received the

above mentioned information in writing. Therefore, there has been non-

compliance with the requirements of Section 42 of the ND&PS Act which vitiates

the recovery, as well as the trial.

16. The learned counsel for the appellant next submits that the provision of

sub Section 52(A) of the ND&PS Act has also been violated and in this regard,

he has pointed to the inventory said to have been prepared before the

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Magistrate, where in the case number has been mentioned as CPI-PSC/No.

138/2020, dated 12.12. 2020 under Section 21(b) of the ND&PS Act whereas

the case number of the present case, which is also reflected in the inventory

and certification of the Magistrate, is CPI-PSC/No. 8/2021, dated 22.02.2021

under Section 21(c)/25/29 of the ND&PS Act. The learned counsel has also

referred to Section 57 of the ND&PS Act to show that there has been non-

compliance with the same as there is no counter signature of the OC on the

information regarding seizure and arrest claimed to have been submitted by the

Seizing Officer, SI, C. Lalsangliana to the Officer In-Charge of Champhai police

station.

17. The learned counsel for the appellant has also contended that the

prosecution has failed to prove the chain of custody of the seized articles as it

failed to produce any go down register or receipt in this regard. It is further

submitted with regard to the aforesaid aspect that the FSL report indicates that

it was received by the FSL on 01.03.2021 whereas the same was sent on

23.02.2021 and there is no explanation for the delay of 7 days or as to in whose

custody the samples remained from 23.02.2021 to 01.03.2021. It is further

submitted that there is no description regarding the manner in which the sample

was drawn in the evidence of the IO or any other witness for that matter and

nothing has been mentioned about the proper affixing of the seal on the sample

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or as to what kind of sealed was affixed thereto.

18. The learned counsel for the appellant therefore submits that the

prosecution failed in its duty to adduce evidence to satisfy the Court that the

Samples were properly drawn and sealed before sending the same to the FSL

and also that they remained in safe custody from the point of time the samples

were sealed till the point of time they were received by the FSL. There is also

mismatch in the description of the samples as available in the FSL report, which

did not indicate the presence of any boxes, although as per the PW No.1/PW

No. 5, the contraband was found in 4 boxes.

Continuing his submissions, the learned counsel for the appellant has also

referred to the alleged contradictions in the evidence of the PWs regarding the

place of recovery of the contraband. Whereas PW Nos. 1 & 2 had deposed that

the contraband was found in between the front and back seat of the vehicle, the

PW Nos. 3 & 5 stated that the same were kept inside the bonnet cover between

the back and front seat of the vehicle.

19. It is lastly submitted that the prosecution failed to produce any destruction

certificate under Section, 52(a) of the ND&PS Act and at the same time, failed

to produce the seized articles before the Court during the course of the trial and

hence, it must be held that the prosecution has miserably failed to prove its

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case.

20. In support of his aforesaid submissions, the learned counsel for the

appellant has relied upon the following decisions:

i) Karnail Singh Vs State of Haryana reported in (2009) 8 SCC 539

ii) Boota Singh & Ors Vs State of Haryana reported in (2021) 19

SCC 606

iii) Union of India Vs Mohanlal & Anr reported in (2016) 3 SCC 379

iv) Chanam Ranjit Meitei Vs Union of India reported in (2010) 3

GauLT 361

v) Vijay Pandey Vs State of Uttar Pradesh reported in (2019) 8 18

SCC 215

vi) Noor Aga Vs State of Punjab & Anr reported in (2008) 16 SCC

417

21. Countering the aforesaid submissions of the learned counsel for the

appellant, the learned Additional Public Prosecutor submits that there is no

actual mismatch between the exhibit 8, Inventory of Seized Drugs and the

exhibit P9, list of samples drawn. It is submitted that in the exhibit P8 inventory,

the marks and numbers column shows that the exhibits were marked as: Ex. A1

to V, Ex. B1 to V, Exhibit C 1 to V Ex. D1 to V, which are the same markings as

described in the Ex. P9 List of Samples drawn and the signature is also that of

the same Magistrate i.e., the CJM, Champhai. Furthermore, the date of the

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registration of the case in exhibits P8 & P9 are also different and the Sections

under which the case has been registered also differ and from the above, it

appears that it is a mere clerical error as a result of which a wrong case number

has been mentioned and on a combined reading of the aforesaid to exhibits, it

is evident that the Ex. P9 List of Samples drawn is in relation to the Ex. P8

Inventory of Seized Drugs.

22. Furthermore, no PWs were ever confronted with any such discrepancy

which would have allowed the prosecution witnesses concerned to explain the

same and therefore the said alleged discrepancy cannot be raised for the first

time in appeal. With regard to violation of Section 42 of the ND&PS Act, the

learned Additional Public Prosecutor has submitted that the interception of the

vehicle of the appellant was not made on the basis of any prior information

received regarding commission of any offence under the ND&PS Act and the

recovery made pursuant to the said interception was a chance recovery and

therefore, the provisions of Section 42(1) of the ND&PS Act does not apply.

23. The learned Additional Public Prosecutor submits that as regards to

violation of Section 57 of the ND&PS Act regarding non- furnishing of the report

of seizure and arrest to the Officer-in-Charge, although the said report does not

contain the counter signature of the Officer-in-Charge, the exhibit P2, which is

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addressed to the Messaging Officer, SI, C. Lalsangliana by the Officer-in-Charge

of Champhai police station, which is an authorization for search and seizure

under Section 41(2) of the ND&PS Act clearly states that from the information

laid before him, it transpires that an offence in respect of the narcotic drugs/

psychotropic substances have been committed and this information, evidently is

the information of seizure and arrest as intimated by the Seizing Officer to the

Officer-In-Charge, Champhai Police station as communicated by the Seizing

Officer vide the exhibit P4 letter i.e., report of seizure and arrest. This is so

because it has come in the evidence of the PW No. 1 that he had prepared his

information in writing under Section 42(1) of the ND&PS Act @ 6:20 p.m. which

was after recovery of the seized articles. Since no other intimation was made to

the Officer-in-Charge regarding any prior information under section 42(1) of the

ND&PS Act, the information referred to by the Officer-in-Charge, Champhai

Police Station in the aforesaid authorization to the Seizing Officer vide exhibit

P2 relates to nothing else than the report of search and seizure and information

sent by the Seizing Officer to the Officer-in-charge under Section 42(1) (Ext. P-

2) after the recovery which fully discloses the details of the seizure and arrest.

Hence, there has been substantial compliance with Section 57 of the ND&PS

Act. As regards the alleged discrepancies in the evidences of the prosecution

witnesses regarding the place of recovery, the recovery itself having been

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admitted by the appellant both in its defence statement as well as his defence

evidence, the same is of no consequence.

24. It is further submitted with regard to the custody of the seized articles that

in the Exb. P-3 Property Search and Seizure Form, at column 8 therein, i.e.,

Action taken/recommended for keeping of valuable property, the MR No. has

been mentioned and the place of deposit is also mentioned as ND&PS,

Malkhana and it is also mentioned in the charge sheet i.e., Exb. P-10 that the

seized articles are kept in the ND&PS, Malkhana. This according to the learned

Public Prosecutor shows that the seized articles were all along in safe custody. It

is further submitted that the PW No. 5, IO has clearly deposed that the seized

articles were produced before the learned CJM, Champhai on 23.02.2021, in

which the inventory was found to be correct and photographs were taken and

samples were also drawn packed and sealed for laboratory examination and as

per the FSL report also, the samples were found in sealed condition and the seal

also matched with the samples provided by the sending authority and therefore

there does not arise any reason to doubt the proper custody and safe condition

of the seized articles.

25. The learned Additional Public Prosecutor in support of her aforesaid

submissions has referred to the following decisions:

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i) Narcotics Control Bureau Vs Kashif reported in (2024) 11 SCC

372 and

ii) Kashmir Ram @ Pappi Vs State of Punjab reported in (2026)

INSC 854.

26. I have given my anxious considerations to the rival submissions.

27. With regard to the submission regarding the provision of sub Section 42 of

the ND&PS Act, the said provision may be reproduced for better appreciation.

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

(1) Any such officer (being an officer superior in rank to a peon, sepoy or

constable) of the departments of central excise, narcotics, customs, revenue

intelligence or any other department of the Central Government including

paramilitary 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 persons knowledge or information given by any person

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

controlled substance in respect of which an offence punishable under this Act

has been committed or any document or other article which may furnish

evidence of the commission of such offence or 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,--

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

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

entry;

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

thereof and any other article and any animal or conveyance which he has

reason to believe to be liable to confiscation under this Act and any document

or other article which he has reason to believe may furnish evidence of the

commission of any offence punishable under this Act or furnish evidence of

holding any illegally acquired property which is liable for seizure or freezing or

forfeiture under Chapter VA of this Act; and

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

reason to believe to have committed any offence punishable under this Act:

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

drugs or psychotropic substances or controlled substances granted under this

Act or any rule or order made thereunder, such power shall be exercised by an

officer not below the rank of sub-inspector:

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

or authorisation cannot be obtained without affording opportunity for the

concealment of evidence or facility for the escape of an offender, he may enter

and search such building, conveyance or enclosed place at any time between

sunset and sunrise after recording the grounds of his belief.

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

(1) or records grounds for his belief under the proviso thereto, he shall within

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seventy-two hours send a copy thereof to his immediate official superior.”

28. A plain reading of the aforesaid provision would clearly indicate that the

information referred to in Sub Section (1) above relates to the period prior to

the recovery, when a Police Officer/Authorized Officer receives information that

an offence under the ND&PS Act has been committed. What Sub Section (1) of

Section 42 does is that it authorizes the concerned Officer to take any of the

actions enumerated from Clauses (a) to (d) of Sub Section (1) of Section 42, in

case he receives any information regarding commission of an offence under the

ND&PS act and it is only such information that is required to be taken down in

writing. If the interception or recovery is already made without any prior

information, there is no scope for application of Section 42(1).

29. The aforesaid aspect has been dealt with by the Hon’ble Apex Court in the

case of State of Punjab Vs Baldev Singh reported in (1999) 6 SCC 172,

wherein its decision in State of Punjab Vs Balbir Singh (1994) 3 SCC 229

were considered:

“(2-C) Under Section 42(1) the empowered officer if has a prior information

given by any person, that should necessarily be taken down in writing. But if he

has reason to believe from personal knowledge that offences under Chapter IV

have been committed or materials which may furnish evidence of commission of

such offences are concealed in any building etc. he may carry out the arrest or

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search without a warrant between sunrise and sunset and this provision does

not mandate that he should record his reasons of belief. But under the proviso

to Section 42(1) if such officer has to carry out such search between sunset and

sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same

would affect the prosecution case and vitiate the trial.

(4-A) If a police officer, even if he happens to be an “empowered” officer while

effecting an arrest or search during normal investigation into offences purely

under the provisions of CrPC fails to strictly comply with the provisions of

Sections 100 and 165 CrPC including the requirement to record reasons, such

failure would only amount to an irregularity.”

30. In the present case, the PW No. 1 has deposed in his examination-in-chief

that he and his party, while conducting random checking intercepted the vehicle

of the appellant and then saw a black polythene bag and he found that the

vehicle might conceal some contraband articles. However, during cross

examination, he stated that it was his team that detained the seized vehicle and

they informed him through telephone and he proceeded to the place of

occurrence along with the civilian witnesses. It is the contention of learned

counsel for the appellant that it is this information which ought to have been

taken down in writing by the PW No. 1. There is no indication in the evidence of

PW No. 1 during his cross examination that the said information related to

commission of any offence under the ND&PS Act so as to attract the provisions

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of sub section 1 of section 42 and therefore, there appears to have been no

necessity of taking down any such information in writing. At best, the PW No. 1

could be said to have had a reasonable ground to believe that such an offence

has been committed but as held by the Hon’ble Apex Court in the case of

Balbir Singh (Supra), it is only when specific information is received that the

said information is required to be recorded in writing. It has been specifically

held therein that the grounds of belief as distinguished from information

received need not be taken down in writing. Therefore, the present recovery

must be held to be a chance recovery made in the course of normal checking,

and therefore the provisions of Section 42(1) of the ND&PS Act are not

applicable. Consequently, the decisions in Karnail Singh (Supra), Boota

Singh (Supra), cited on behalf of the appellant and Kashmir Ram (Supra)

detailing with the requirement of extend of compliances with Section 42(1) of

the ND&PS Act may not be relevant.

31. Further, with regard to the contention regarding violation of Section 57 of

the ND&PS Act, the same constitution bench in Baldev Singh (Supra) has

held that the compliance with the same is not mandatory. In any event, it

appears that the Exb.P-2 communication of the Officer-in-charge, Champhai

police station to the Seizing Officer, was made subsequent to the communication

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of the report of search and seizure vide Exb. P-4. Admittedly, the PW No. 1 did

not record in writing any information received and it was only at 6:20 p.m., on

the date of seizure i.e., 22.02.2021 that he reduced to writing the fact of seizure

of the articles and detention of the appellant vide Exb. P-1, which is described

as an information report in writing under Section 42(1) of the ND&PS Act, as

prior to that, PW No. 1 did not communicate anything to the OC of the

Champhai police station. Therefore, it is only on receipt of the aforesaid Exb. P-

1 record in writing or the Exb. P-4, report of search and seizure that the OC

could have gained knowledge of the fact that an offence under the ND&PS Act

has been committed and therefore, the information referred to in the said Exb.

P-2 authorization would include the report of arrest and seizure. There is also no

requirement of any counter signature of the OC on the aforesaid report of

search and seizure sent by the Seizing Officer as it was a document to be

retained by the OC. Strict proof of such communication of report cannot be

therefore insisted upon. Moreover, the same has been ‘seen’ by the concerned

Court. Therefore, the contention with regard to violation of Section 57 having a

vitiating effect on the trial also stands negated. Further, the discrepancy as

regards the case number mentioned in the list of samples also appears to have

been properly explained by the prosecution as reflected in the submissions of

learned Additional Public Prosecutor referred to herein above and similarly, the

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alleged contradiction as regards the place of recovery as emanating from the

evidence of the PWs appears to be without substance, in view of the fact that

the appellant has admitted such recovery both in his defence statement and his

defence evidence. The non-production of the seized articles before the Court, by

itself, is also of no significance inasmuch as Section 52(A) of the ND&PS Act

mandates that the inventory, photograph and list of samples are all to be

treated as primary evidence and the same having been exhibited before the

Court without challenge during the course of the trial, there was no requirement

of producing the seized articles in bulk before the Court whether the procedure

contemplated by Section 52(A) and subsequent steps thereafter were duly

followed or not is another matter, which shall be dealt with subsequently.

32. In this regard, it has been held by the Hon’ble Apex court in the case of

Karif (Supra):

“34. Section 52-A was inserted only for the purpose of early disposal of the

seized contraband drugs and substances, considering the hazardous nature,

vulnerability to theft, constraint of proper storage space, etc. There cannot be

any two opinions on the issue about the early disposal of the contraband drugs

and substances, more particularly when it was inserted to implement the

provisions of International Convention on the Narcotic Drugs and Psychotropic

Substances, however delayed compliance or non-compliance with the said

provision by the officer concerned authorised to make application to the

Magistrate could never be treated as an illegality which would entitle the

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accused to be released on bail or claim acquittal in the trial, when sufficient

material is collected by the investigating officer to establish that the search and

seizure of the contraband substance was made in due compliance with the

mandatory provisions of the Act.

35. It is significant to note that as per Section 54 of the said Act, the courts are

entitled to presume, unless and until the contrary is proved that the accused

had committed an offence under the Act in respect of any narcotic drug or

psychotropic substance, etc. for the possession of which he failed to account

satisfactorily. Therefore, unless such statutory presumption is rebutted by the

accused during the course of trial, there would be a prima facie presumption

that the accused had committed the offence under the Act, if he is found to

have possessed the contraband drug and substance, and if he fails to account

for satisfactorily, as contemplated in the said provision of Section 54. An

anomalous situation would arise if a non-compliance or delayed compliance with

Section 52-A is held to be vitiating the trial or entitling the accused to be

released on bail, though he is found to have possessed the contraband

substance, and even if the statutory presumption is not rebutted by him. Such

could not be the intention of the legislature.”

33. In Than Kunwar Vs State of Haryana reported in (2020) 5 SCC 260, it

was observed:

“30. The Court also went to hold in Sahi Ram [State of Rajasthan v. Sahi Ram,

(2019) 10 SCC 649 : (2020) 1 SCC (Cri) 85] that if seizure is otherwise proved

on record and it is not even doubted or disputed, it need not be placed before

the Court. The Court further held that if the seizure is otherwise proved what is

required to be proved is the fact that samples taken out of a contraband are

kept intact. This Court held as follows:

Page No.# 26/32

“15. It is true that in all the aforesaid cases submission was advanced on behalf

of the accused that failure to produce contraband material before the court

ought to result in acquittal of the accused. However, in none of the aforesaid

cases the said submission singularly weighed with this Court to extend benefit

of acquittal only on that ground. As is clear from the decision of this Court in

Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri) 2028] ,

apart from the aforesaid submission other facets of the matter also weighed

with the court which is evident from paras 7 to 9 of the decision. Similarly in

Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547] , the

fact that there was no explanation where the seized substance was kept (para

11) and the further fact that there was no evidence to connect the forensic

report with the substance that was seized (para 12) were also relied upon while

extending benefit of doubt in favour of the accused. Similarly, in Vijay Jain

[Vijay Jain v. State of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , the

fact that the evidence on record did not establish that the material was seized

from the appellants, was one of the relevant circumstances. In the latest

decision of this Court in Vijay Pandey [Vijay Pandey v. State of U.P., (2019) 18

SCC 215] , again the fact that there was no evidence to connect the forensic

report with the substance that was seized was also relied upon to extend the

benefit of acquittal.

16. It is thus clear that in none of the decisions of this Court, non-production of

the contraband material before the court has singularly been found to be

sufficient to grant the benefit of acquittal.

18. If the seizure of the material is otherwise proved on record and is not even

doubted or disputed, the entire contraband material need not be placed before

the court. If the seizure is otherwise not in doubt, there is no requirement that

Page No.# 27/32

the entire material ought to be produced before the court. At times the material

could be so bulky, for instance as in the present material when those 7 bags

weighed 223 kg that it may not be possible and feasible to produce the entire

bulk before the court. If the seizure is otherwise proved, what is required to be

proved is the fact that the samples taken from and out of the contraband

material were kept intact, that when the samples were submitted for forensic

examination the seals were intact, that the report of the forensic experts shows

the potency, nature and quality of the contraband material and that based on

such material, the essential ingredients constituting an offence are made out.”

Therefore, if the bulk of the seized contraband is not produced in evidence,

all of the aforesaid aspects are to be duly proved.

34. Section 55 of the ND&PS Act provides:

“An officer-in-charge of a police station shall take charge of and keep in safe

custody, pending the orders of the Magistrate, all articles seized under this Act

within the local area of that police station and which may be delivered to him,

and shall allow any officer who may accompany such articles to the police

station or who may be deputed for the purpose, to affix his seal to such articles

or to take samples of and from them and all samples so taken shall also be

sealed with a seal of the officer-in-charge of the police station.”

35. In the instant case, the PW No. 1, Seizing Officer has deposed that after

completing the formalities in weighing and sealing of the articles, he produces

them before the OC, Champhai Police Station.

Page No.# 28/32

36. The said witness, however, has not produced the malkhana register or

receipt evidencing the deposition depositing of the seized articles with the O.C

of the Police Station/malkhana. Far from that, the said PW, nor for that matter

or any other PW, has deposed anything as to what was done by the seizing

Officer with respect to the seized articles after he produced it before the O.C of

the concerned Police Station.

37. It cannot be left to the presumption of the Court that since the articles

were produced before the O.C, the requirements of Section 55 of the ND&PS

Act have been complied with. The entry in paragraph 8 of the exhibit-3,

property search and seizure form, i.e.“1/21 (ND&PS) malkhana, as against the

column action taken/recommended for keeping of valuable property, does not

prove anything regarding the safe custody of the seized articles inasmuch as the

aforesaid seizure list, as per requirement was presumably prepared at the place

of occurrence and at that time, there could not have been any entry in the said

list to the effect that the seized articles have been deposited in the ND&PS

malkhana, what was sought to be conveyed by the said entry is therefore,

presumably the action recommended for keeping of the valuable property and

not action taken as delineated in the aforesaid paragraph 8 of exhibit-3. The

fact that it has been mentioned in the charge sheet that the seized articles were

Page No.# 29/32

deposited in the NDPS malkhana in the remark’s column is neither here nor

there as there is no indication with regard to date and time as to where as to

the date and time of alleged deposit of the seized articles in the malkhana.

Therefore, a question mark naturally arises as to whether the articles produced

before the CJM, Champhai on the next day were in fact the articles that were

seized from the possession of the petitioner since there is no evidence regarding

the safe custody of the said articles during the intervening period of one day.

38. The PW-5, I.O has deposed that the seized articles were produced before

the CJM, Champhai, on 23.02.2021 in which the inventory was found correct,

photographs were taken and samples were drawn, packed and sealed for

laboratory examination. The Magistrate has certified vide exhibit P-8, list of

samples drawn that the seized articles were brought before him with seals intact

from which the samples mentioned there under were drawn and packed in his

presence. But the Magistrate does not certify that the samples were also sealed

in his presence. There is nothing in the order of the Magistrate of even date as

regards the manner in which the samples were drawn and also does not

indicate that the same were sealed in his presence. It is a cryptic order merely

stating that the samples were drawn. Although the Magistrate has certified that

the seized articles were brought before him with seals intact, in the absence of

Page No.# 30/32

proof that during the period commencing from the time when the articles were

seized to that time when they were produced before the Magistrate, that is on

the next day, the articles were kept in safe custody as per the provisions of the

ND&PS Act, mere presence of the seal is not of much value as such seals can be

tampered with unless they are kept in proper custody. Furthermore, the PW-5

despite having stated that the samples were drawn, packed and sealed for

laboratory examination did not state anything as to the custody of the said

sealed samples during the period of seven days from the date of production

before the Magistrate and the date on which it was received by the FSL.

Therefore, the safe custody of the samples as well during an apparently lengthy

period of seven days becomes clouded with doubt. Although the FSL report

indicates that the samples were received in sealed condition and the seal upon

the samples tallies with the sample seal forwarded, it cannot be denied that in

the absence of proof of safe custody, there arises scope for tampering with the

seal during this period of seven days.

39. Under the NDPS Act, the chain of custody is the unbroken chronological

documentation establishing that the contraband seized from the accused is the

exact untampered substance produced before the Magistrate and analyzed by

the Forensic Science Laboratory. Since the act carries stringent penal provisions

Page No.# 31/32

and statutory reverse burdens of proof (Section 35 and Section 54 of the

ND&PS Act), insistence must be placed on strict compliance with the chain of

custody and any unexplained gap or delay leads to grave doubt as regards the

fact as to whether the seized articles are one and the same as that produced

before the Magistrate under Section 52A and whether the samples examined by

the FSL are properly relatable to the list of samples/inventory.

40. In the case of Karandeep Sharma alias Razia alias Raju Vs. State of

Uttarakhand, reported in (2025) SC OnLine SC 773, the Hon’ble Apex Court

emphasized that for a FSL report to be acceptable and reliable, the prosecution

must establish an unbroken chain of custody and demonstrate that the samples

remained duly sealed and untampered throughout and held as follows:-

“54. In order to make the DNA report acceptable, reliable and admissible, the

prosecution would first be required to prove the sanctity and chain of custody of

the samples/articles right from the time of their preparation/collection till the

time they reached the FSL. For this purpose, the link evidence would have to be

established by examining the concerned witness.

55. Evidently, there is not even a semblance of evidence on record to satisfy the

Court that the samples/articles collected from the dead body of the child-victim

and those collected from the appellant which were later forwarded to the FSL

were properly sealed or that the same remained in a self-same condition right

from the time of the seizure till they reached the FSL. No witness from the FSL

was examined by the prosecution to prove that the samples/articles were

Page No.# 32/32

received in a sealed condition. Hence, there is every possibility of the samples

being tampered/manipulated by the police officers so as to achieve a favourable

result from the FSL, thereby, inculpating the appellant in the crime.”

41. As already discussed above, the link evidence has not been established

through any of the prosecution witnesses and in fact, there is not even a

mention as to who carried the samples to the FSL.

42. Under the aforesaid circumstances, it cannot be said that the prosecution

has established the link evidence beyond reasonable doubt.

43. In the aforesaid view of the matter, the impugned judgment of conviction

cannot be sustained and accordingly, the same stands set aside and the appeal

stands allowed.

44. Return the TCR.

JUDGE

Comparing Assistant