IMPORTANT POINT
Strict compliance with procedural safeguards in narcotics cases is essential; failure to adhere to statutory requirements can lead to exclusion of evidence and acquittal.

JUDGMENT :

(Arun Dev Choudhury, J.) :

1. Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. V.A Chowdhury, learned counsel for the appellant. Also heard Mr. M.P. Goswami, learned Addl. PP, Assam.

2. The present appeal is filed under section 36B of the NDPS Act, 1985 read with section 374 (2) of the Cr.P.C against the judgment and order of conviction dated 27.07.2023 passed by learned Special Judge, NDPS, Karbi Anglong whereby the appellants were convicted and sentenced to suffer rigorous imprisonment for 10 years with a fine of Rs.50,000/-for offence under section 21(c) of the NDPS Act, 1985 (hereinafter referred to as Act, 1985) and in default to undergo simple imprisonment for another 6 months.

3. The prosecution case in a nutshell is that on 08.05.2022 at around 11.15 PM, a black coloured Maruti Ciaz (without registration number) was stopped at the naka checking which was driven by one Lanahmai Stephen Tingao (A1) with Veipuh Prou @ Roku Baipu (A-2) as co passenger. On being checked, 1995.29 grams of suspected heroin was recovered from the dickey of the car. Seizure list was prepared and formal FIR was thereafter lodged by SI (UB) Lutfur Rahman.

4. On receipt of the FIR, Dillai PS Case No.12/2022 was registered on 09.05.2022 and the appellants were arrested. According to the prosecution, representative samples were prepared in presence of the Magistrate and was sent to FSL for expert examination and on conclusion of investigation, investigating authority submitted charge sheet being CS No.13/2022 dated 26.07.2022 against accused Lanahmai Stephen Thingao (A-1) and Veipuh Prou @ Roku Baipu (A-2) under sections 22(c), 27A and section 29 of the Act, 1985.

5. On receipt of the charge sheet, the special case was registered and cognizance was taken. Charges were framed under sections 21(c), 27A and Section 29 of the Act, 1985 against the above named appellants. The appellants pleaded not guilty accordingly the trial commenced.

6. To bring home the charge, the prosecution examined as many as 6 witnesses and exhibited certain documents. The accused were examined under Section 313 Cr.P.C. however, they did not adduce any evidence. Thereafter, the impugned judgment and sentence was passed as recorded hereinabove. Being aggrieved the present appeal is preferred.

7. Mr. A. M. Bora, learned Senior Counsel for the appellant argues that the articles alleged to have been seized were not kept in safe custody from the time of alleged seizure i.e. from 01:00 AM of 09.05.2022 till its production before the Magistrate on 10.05.2022. Thus, there is a serious doubt whether the materials produced are actually the seized materials. In support of such contention, Mr. Bora, learned Senior Counsel relies on the judgment of the Hon’ble Apex Court in the case of Valsala–Vs-State of Kerela reported in 1993 (3) SCC (Supp) 665 and Md. Khalid-Vs-State ofTelangana reported in 2024 SCC Online SC 213.

8. Mr. Bora further contends that the custody of the seized materials itself is doubtful inasmuch as from the evidence of PW-4, the Seizing Officer and the PW-6, the Investigating Officer, it is established that the alleged contraband has travelled from the place of seizure to Dillai Police Station and thereafter, to Bokajan Police Station and there is no evidence, how the seized materials reached Bokajan Police Station from Dillai Police Station.

9. The accused are entitled for acquittal for non adherence of Section 52A of the Act, 1985. No application under such provision was exhibited nor was the list of sample tendered in evidence duly certified by the Magistrate. There is no material to suggest adherence of the mandate of law of mixing all the seized materials to make it a homogeneous and representative of the seized material. It is contended that the list of sample stated to be prepared before the Magistrate was also not exhibited.

10. According to Mr. Bora, learned Senior counsel for the appellants, during the course of trial no evidence was produce