IMPORTANT POINT
Compliance with Section 52A of the NDPS Act is crucial for the admissibility of evidence; failure to adhere to its provisions can lead to acquittal.

JUDGMENT :

(Arun Dev Choudhury, J.) :

1. Heard Mr. N.J. Dutta, the learned counsel for the appellant. Also heard Mr. M. P. Goswami learned Additional Public Prosecutor, Assam, appearing for the State.

2. This appeal is filed assailing the judgment and order dated 22.02.2023, whereby the learned Special Judge (Addl), Dhubri in Special Case No. 213/2022 convicted the appellant under Section 22(c) of the NDPS Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years and also directed to pay fine of Rs. 1,00,000/-(one lakh) in default to undergo simple imprisonment for six months.

3. The prosecution case as unfolded from the materials available on record is to the effect that on 28.01.2022, while the informant was conducting patrolling duty, at about 1.20 pm, a motorcycle rider was detained on suspicion and found six numbers of Phensedyl Cough Syrup (100 ml each), 5 numbers of ESKUF Cough Syrup (100 ml each) and 48 numbers of Nitrosun-10 tablets and cash amount of Rs. 910/-. Accordingly, Golokganj PS case No. 42/2022 under Section 22(c) of the NDPS Act, 1985(herein after referred as Act ,1985) was registered.

4. Upon completion of the investigation, the Investigating Officer had submitted charge sheet against the accused/appellant under Section 22(c) of the Act,1985.

5. Based on the charge sheet submitted by the Investigation Officer, charges were framed against the accused /appellant under Section 22(c) of the Act, 1985. The charges were read out and explained to him but the accused person/appellant had pleaded not guilty and claimed to be tried. Hence, the matter went up to trial.

6. In order to bring home the charges, the prosecution had examined as many as 4 witnesses, who were cross-examined by the defence. Two court witnesses were also examined. The statements of the accused/appellant were recorded under Section 313 Cr.P.C. The defence also adduced as many as two witnesses, who were also cross-examined by the prosecution.

7. Mr. NJ Dutta, the learned counsel for the appellant has argued that from the documentary evidence and the material exhibits, it is clear that no certificate was exhibited in terms of the notification dated 16.01.2015, issued under Section 52A of the Act, 1985, whereby detail procedure for disposal of the narcotic drugs, psychotropic substances, contraband substance and conveyance after their seizure was prescribed and therefore, in absence of such evidence the entire trial shall fail. Alternatively, Mr. Dutta argues that though the petitioner was held to be guilty under Section 22 (c) of the Act,1985 the contraband seized is admittedly 48 numbers of Nitrosun 10 tablets, which gave positive result of nitrizipum and total weight of 48 numbers of tablets is 2.64 Gms, which is a small quantity as per notification dated 16.07.1996. Therefore, even if it is assumed that the contraband is found in the conscious possession of the contraband, the petitioner would not have been convicted for possessing commercial quantity. Mr. Dutta further contends that there is an unexplained delay of 5 days in sending the samples to the FSL and there is no explanation by the prosecution about the reason of delay and such delay also vitiated the trial. In this context, Mr. Dutta relies on the notification No. GSR.38(E) dated 16.01.2015. Mr. Dutta further relies on a decision of the Division Bench of this Court passed in Crl A (J) 84/2020 (Pinak Shankar Basu Vs. State of Assam).

8. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor, Assam argues that the contraband were recovered from the motor cycle of the accused during checking in the market area. From the evidence of PW-1, it is clear that it was a chance recovery and therefore, there is no requirement of fulfilling the provisions of Section 41 and 42 of the Act, 1985. It is further contended by Mr. Goswami, learned Additional Public Prosecutor that from the evidence of PW-2, and PW-3, the prosecution has been able to establish the recovery of