Point of Law: Section 52A of NDPS Act deals with disposal of seized narcotic drugs and psychotropic substances.

JUDGMENT :

M. Zothankhuma, J.

Heard Mr. K. Bhattacharjee, learned counsel for the appellant as well as Ms. B. Bhuyan, learned Additional Public Prosecutor for the State.

2. The present appeal has been filed against the judgment dated 20.04.2022 passed by the learned Sessions Judge, Barpeta in Special NDPS Case No. 31/2021, by which the appellant has been convicted under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo rigorous imprisonment for 15 (fifteen) years and to pay a fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for 1 (one) year.

3. The brief facts of the case is that pursuant to the seizure of 26 numbers of 100 ml Coterex cough syrup bottles and 78 numbers of 100 ml Cossex cough syrup bottles from the house of the appellant on 18.01.2021 at about 6:00 p.m., Barpeta P.S. Case No.133/2021 under Section 22(b) of the NDPS Act was registered against the appellant. After investigation had been completed, the Investigating Officer submitted a charge-sheet, having found a prima facie case against the appellant under Section 22(b) & (c) of the NDPS Act.

4. Charge was framed against the appellant under Section 21(c) of the NDPS Act, to which the appellant pleaded “not guilty” and claimed to be tried.

5. 8 (eight) prosecution witnesses were examined by the learned Trial Court and the appellant was examined under Section 313 Cr.P.C. thereafter. After hearing the appellant and the Additional Public Prosecutor for the State of Assam, the learned Trial Court found the appellant to be guilty of the offence under Section 8 of the NDPS Act and was convicted under Section 21(c) of the NDPS Act, as the seized articles/contraband was of commercial quantity. The learned Trial Court awarded the sentence of rigorous imprisonment for 15 (fifteen) years and to pay a fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for 1 (one) year, thereafter.

6. The learned Counsel for the appellant submits that though the secret information that had been received by the police, had been taken down in writing, a copy of the same had not been sent to the immediate official superior of the person who had taken down the said information in writing. He further submits that the seized articles were not produced before the learned Trial Court during the trial, which could have proved the fact that the seized articles had been recovered from the possession of the appellant. Further, the seizure witnesses never witnessed the seizure of the contraband as per their adduced evidence. Thus, there was no proof that the seized contraband had been recovered from the house of the appellant. He also submits that the seized articles were never produced before the learned Magistrate and no inventory of the same had been taken in terms of Section 52-A of the NDPS Act. As such, due to non-compliance with the mandatory provisions of law i.e. Section 42 and Section 52-A of the NDPS Act, the proceedings against the appellant being vitiated, the impugned judgment was not sustainable in law and has to be set aside.

7. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand submits that failure to produce the contraband materials/seized articles before the Court during trial, cannot result in the acquittal of the appellant, inasmuch as, only the non-production of the contraband materials before the Court cannot be the ground to grant the benefit of acquittal to the appellant. In this regard, she has relied upon the judgment of the Apex Court in the case of State of Rajasthan vs. Sahi Ram, reported in (2019) 10 SCC 649. She further submits that the appellant has not denied possession of the contraband articles that were recovered and seized from the house of the appellant. She also submits that there is a presumption of possession of the illegal articles on the part of the appellant in terms of Section 54 of the NDPS Act.

8. We have heard the learn