1. Appeal against conviction under NDPS Act for alleged possession of cannabis — Challenge on procedural compliance and proof of seizure. (Para 2 , 3 , 4 , 5 , 6 , 7 )
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IN THE GAUHATI HIGH COURT HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MRIDUL KUMAR KALITA, J.
Hobiqul Islam, S/o-Sirajul Islam – Appellant
Versus
State of Assam, Represented By The Public Prosecutor, Assam – Respondent
Crl.A. 144 of 2026 With Crl.A. 192 of 2023
Decided On : 24-08-2026
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(C) - Conviction under - Appeal against - Failure to comply with mandatory provisions of Section 52A - No inventory of seized contraband prepared - Samples not drawn in presence of Magistrate - Seized contraband not produced before court during trial - Chain of custody not established - Seizure witnesses did not prove recovery from appellants - Conviction set aside and appellants acquitted. (Paras 33, 34, 35, 36)
(B) Evidence - Seizure witnesses - Testimony of - Inconsistencies - Witnesses admitted signatures obtained at police station or not at place of seizure - Unable to prove seizure of contraband from accused - Prosecution case not established. (Paras 36)
(C) Criminal Procedure Code, 1973 - Section 313 - Examination of accused - Accused denied prosecution evidence - No defence evidence adduced - However, burden on prosecution to prove case beyond reasonable doubt - Failure to follow mandatory procedures leads to acquittal. (Para 7)
Facts of the case:
On 15.02.2020, police intercepted a vehicle and recovered 30 kg of suspected cannabis from the two occupants (appellants). Later, on information from them, another 75 kg of cannabis was recovered from a house. Charge-sheet was filed under Section 20(b)(ii)(C) of NDPS Act. Trial court convicted both appellants to 10 years RI and fine of Rs.1,00,000 each. Appellants appealed.
Findings of Court:
The High Court found that the prosecution failed to comply with Section 52A of NDPS Act - no inventory was prepared, samples were not drawn in presence of Magistrate, and seized contraband was not produced in court. Seizure witnesses gave contradictory evidence and did not prove the recovery from the appellants. The chain of custody was not established. The conviction was based on conjectures and surmises. Therefore, the trial court's judgment was set aside.
Issues: (i) Whether the trial court correctly convicted the appellants under Section 20(b)(ii)(C) of NDPS Act despite non-compliance with mandatory provisions of Section 52A? (ii) Whether the seizure and recovery of contraband from the appellants was proved by reliable evidence?
Ratio Decidendi: The provisions of Section 52A of NDPS Act are mandatory. Failure to prepare an inventory, draw samples before a Magistrate, and produce the contraband in court renders the prosecution case unreliable. Moreover, seizure witnesses who did not witness the seizure cannot prove recovery. In the absence of strict compliance with procedural safeguards, the accused is entitled to acquittal.
Result: Appeals allowed. Impugned judgment set aside. Appellants acquitted and directed to be released forthwith unless wanted in any other case. (Paras 39-42)
1. Appeal against conviction under NDPS Act for alleged possession of cannabis — Challenge on procedural compliance and proof of seizure. (Para 2 , 3 , 4 , 5 , 6 , 7 )
2. Appellants contended procedural lapses under NDPS Act — State relied on oral testimony to prove possession. (Para 24 , 25 , 26 , 27 , 29 , 30 , 31 )
3. Appeals allowed — Conviction set aside — Appellants acquitted of charges under NDPS Act. (Para 39 , 40 , 41 , 42 )
Yes, the court held Section 52A is mandatory; failure to prepare inventory and draw samples before magistrate vitiates the prosecution case. (Para 33 , 34 , 35 )
No, the court found that the seizure witnesses did not prove the recovery; their evidence was contradictory, so conviction cannot stand. (Para 36 , 37 )
JUDGMENT AND ORDER
MRIDUL KUMAR KALITA, J.
[1] Heard Mr. D.K. Medhi, the learned counsel for the appellant in Criminal Appeal No. 192/2023 as well as Mr. A. Atreya, the learned counsel for the appellant in Criminal Appeal No. 144/2026. Also heard Mr. K.K. Das, the learned Additional Public Prosecutor appearing for the State respondent.
[2] By this common judgment, this court proposes to dispose of two criminal appeals, which arise out of the same judgment of the trial court, namely, Criminal Appeal No. 144/2026 filed by the appellant, Hobiqul Islam and the Criminal Appeal No. 192/2023 filed by the appellant, namely, Nijut Bormoholia. Both the appeals are directed towards judgment and order dated 22.12.2022, passed by the court of the learned Special Judge, Udalguri in Special (N) Case No. 04/2020, whereby both the appellants were convicted under Sections 20(b)(ii)(C) of the NDPS Act, 1985 and were sentenced to undergo rigorous imprisonment for a period of 10 years each as well as to pay a fine of Rs. 1,00,000/- (Rupees One Lakh) only each and in default of payment of fine to undergo further simple imprisonment for 6(six) months.
[3] The facts relevant for consideration of both the appeals, in brief, are that on 15.02.2020, the Officer-in-Charge of Mazbat Police Station got an information through reliable sources regarding transportation of ganja by two persons in a swift dezire vehicle from Lalpani towards Mazbat. Accordingly, the General Diary Entry was made in Mazbat Police Station, numbered as Mazbat PS GDE No. 268 dated 15.02.2020 and a naka checking was organized at Bahipukhuri Line No. 12 Orang-Rupa Road. During naka-checking at about 11:00 AM, one swift dezire (Metallic Grey colour) bearing Registration No. AS 12 P 3916 was intercepted by the police personnel and two occupants were found inside the vehicle.
[4] During interrogation of both the occupants (appellants) they admitted that they were bringing 30 kg of suspected cannabis in the rear cabin of the vehicle from Rowta Majuligaon under Mazbat Police Station. Accordingly, the said suspected 30kg of cannabis were seized.
[5] Thereafter, on being led by the present appellants, another 75 kg of suspected cannabis was recovered from the residence of one Jayanta Daimary at Rowta on the same day at about 2:30 PM. However, said Jayanta Daimary could not be apprehended. Later on, one Ruhit Kr. Chetry (S.I. of Police) lodged the First Information Report before the Officer-in- Charge of Mazbat Police Station. On the basis of the FIR, Mazbat Police Station Case No. 12/2020 was registered under Section 20(c) of the NDPS Act, 1985 and the investigation was initiated. After completion of the investigation, charge sheet was laid against both the appellants as well as one Jayanta Daimary (showing him as absconder) under Section 20(b)(ii)(C) of the NDPS Act, 1985.
[6] Both the appellants faced the trial by remaining in custody. After considering the materials on record and after hearing both the sides, the trial court framed the charges against both the present appellants under Section 20(b)(ii)(C) of the NDPS Act, 1985. When the charges were read over and explained to the present appellants, both of them pleaded not guilty to the same and claimed to be tried.
[7] To bring home the charges, the prosecution side examined as many as 7(seven) prosecution witnesses and also exhibited certain documents.The present appellants were also examined under Section 313 of the Code of Criminal Procedure 1973, during which they denied the truthfulness of the testimony of the prosecution witnesses and pleaded their innocence. However, they did not adduce any evidence in their defence. Ultimately, by the judgment and order which has been impugned in these appeals, both the appellants were convicted and sentenced in the manner as already described in paragraph No. 2 of this judgment, hereinbefore.
[8] The point to be determined in this appeal is as to whether the trial court has correctly convicted and sente
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