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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KARDAK ETE, J.
Bhapo Marphew Son of Late Landong Marphew - Appellant
Vs.
The State of AP represented by the PP of AP - Respondent
Crl.A./14/2024
Decided On : 01.04.2025.
(A) NDPS Act, 1985 - Section 21(b) - Criminal appeal against conviction for possession of contraband substance - Appellant convicted and sentenced to 3 years and 6 months rigorous imprisonment and fine of Rs. 50,000/- for possessing 5.8 grams of Di-acetyl morphine - Prosecution established possession beyond reasonable doubt despite procedural lapses in search and seizure - Compliance with Section 42 not mandatory as search conducted by Gazetted Officer. (Paras 2, 7, 16, 43, 49, 52)
(B) Criminal Procedure Code, 1973 - Section 374(2) - Appeal against conviction - Burden of proof lies on prosecution to establish guilt beyond reasonable doubt - Presumption of innocence remains until proven otherwise. (Paras 14, 41)
Facts of the case:
The appellant was convicted for possessing 5.8 grams of Di-acetyl morphine found in his residence during a police raid based on credible information. The prosecution argued that the appellant had conscious possession of the contraband, while the defense claimed procedural lapses in the search and seizure process. (Paras 2, 6, 50)
Findings of Court:
The court upheld the conviction, finding that the prosecution proved the appellant's possession of the contraband beyond reasonable doubt, despite minor procedural lapses. (Paras 52)
Issues: The main issues included whether the prosecution established the appellant's possession of the contraband and whether the procedural lapses affected the legality of the search and seizure. (Paras 8, 12)
Ratio Decidendi: The court ruled that the prosecution's evidence established the appellant's conscious possession of the contraband, and procedural lapses did not vitiate the trial as the essential elements of the offence were proven. (Paras 41, 50)
Result: Criminal appeal dismissed.
Judgment and Order :
KARDAK ETE, J.
Heard Mr. T. N. Minto, learned counsel for the appellant. And also heard Mr.T. Ete, learned Additional Public Prosecutor for the State.
2. This criminal appeal under section 374(2) of Cr.PC, 1973 is directed against the judgment dated 23.04.2024 and Order of Sentence dated 30.04.2024 passed by the learned Special Judge (NDPS), Bomdila, for the District of East Kameng, West Kameng and Tawang in Special NDPS case no. 23/2023 under Section 21(b) of the NDPS Act, 1985, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 3 years and 6 months with fine of Rs. 50,000/- for the offence of possessing intermediate quantity of contraband substance (Di-acetyl morphine) and in default of payment of fine to undergo further imprisonment of 2 months.
3. The case set up by the prosecution is that an FIR dated 12.07.2023 was lodged by Inspector Mr. Onyak Lego of Bomdila Police Station alleging that on 12.07.2023 at about 1610 hrs., a credible information was received from a source that a person namely Bhapo Marphew is selling contraband drugs i.e. heroin, from his residence located at Bidum village (Wangho). The information further asserted that if immediate action is not initiated, the peddler may change his location or may finish selling the contraband drugs. He has shared the information with higher authority and accordingly, he along with H/c Tenzin Norbu and H/c driver Jambey Milong Kharpa proceeded to the location in order to nab the drug peddler without giving the accused chance to change the location and to complete selling of the drug. In this regard an entry vide GDE No. 06 dated 12.07.2023 was made. On arrival at said location and before he searched the house of peddler, he had looked for independent witnesses in the locality but no one was found. Since there was strong chance that they may get spotted by the peddler and the peddler may escaped from the spot, he along with accompanying staff entered the house of suspect, Shri Bhapo Marphew without further delay. On entry, two persons namely- Shri Bhapo Marphew and Shri Tenzin Dargey were found present in the bedroom of suspect Shri Bhapo Marphew. Subsequently, they have apprised the suspects regarding their purpose of visit and asked the suspect for cooperation. The suspects were asked to allow search of their persons and notices under section 50 of NDPS Act were served upon them. The suspects agreed and accordingly, they were searched but nothing was found from their possession. Thereafter, bedroom of Shri Bhapo Marphew was thoroughly searched on which following materials were recovered: (i) 1 (one) transparent plastic pouch containing pinkish yellow colour powdery substance suspected to be contraband drugs i.e. heroin weighing 5.8 grams, (ii) 1 (one) blue colour soap case inside which plastic pouch containing the suspected contraband drugs was found, (iii) 3 (three) disposable syringes, (iv) One black colour Samsung mobile handset (keypad) bearing IMEI No. 356214100962510 and 356215100962517 without SIM card of Tenzin Dargey, (v) 1 (one) golden colour Itell mobile handset bearing IMEI No. 911654202159002 and 911654202119010 along with one Airtel SIM card having caller ID No. 7831991059 card of Tenzin Dargey and (vi) 1 (one) maroon colour Redmi 9 power mobile handset bearing IMEI No. 869938053397049 and 869938053397056 along with one Airtel SIM card bearing caller ID No. 8413026025 of Shri Bhapo Marphew. Consequently, the informant has seized all the aforesaid articles and apprehended both the accused namely- Tenzin Dargey & Shri Bhapo Marphew. Thereafter, the informant brought both the apprehended accused along with seized articles and produced before Shri Kesang Wangda, Executive Magistrate, Bomdila. The photograph of seized materials were taken, the inventory was prepared, the samples were drawn and other required formalities were done in presence of Executive Magistrate. Later on, both the apprehended accuse
The prosecution must establish possession of contraband beyond reasonable doubt, and procedural lapses do not invalidate the trial if essential elements are proven.
The prosecution's failure to follow mandatory procedures for search and seizure under the NDPS Act vitiated the trial, leading to the acquittal of the accused.
Failure to comply with mandatory procedures under the NDPS Act vitiates conviction, necessitating primary evidence for a valid trial.
Possession of narcotic substances can result in conviction under NDPS despite procedural non-compliance if evidentiary strength supports prosecution's claims.
Non-compliance with mandatory procedural requirements under the NDPS Act, particularly Section 52A, undermines the prosecution's case and warrants acquittal.
The court affirmed that possession of contraband substances establishes statutory presumptions requiring defendants to prove lack of conscious possession under the Narcotic Drugs and Psychotropic Sub....
Strict compliance with statutory provisions under the NDPS Act is essential for upholding convictions; failure to produce seized contraband and lack of proper inventory preparation undermines the pro....
Recovery of Ganja – Samples drawn in presence of Magistrate and list thereof on being certified alone would constitute primary evidence for the purposes of trial.
Recovery of contraband – Penal provisions of NDPS Act, 1985 prescribes very harsh punishment for offender and it is incumbent for prosecution side that mandatory procedural requirement to be followed....
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