Gauhati High Court Overturns NDPS Conviction, Citing Procedural Lapses and Evidence Doubts

Kohima: In a significant judgment, the Gauhati High Court (Kohima Bench) has set aside the conviction and sentence of a man accused of possessing a commercial quantity of Ganja, highlighting critical failures by the prosecution in complying with mandatory provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and other procedural infirmities.

The appeal, filed by Shri Pfonyi Koza against the judgment dated April 3, 2023, of the Special Judge (NDPS), Phek , which had convicted him under Section 20(b)(ii)(C) of the NDPS Act and sentenced him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh, was heard by the bench of Justice Mridul KumarKalita .

Case Background:

The case originated from an incident on January 19, 2022, where a Mobile Vehicle Check Post (MVCP) was conducted at Razeba Welcome Gate, Pfutsero. During the check, a white Maruti Gypsy driven by the appellant, Pfonyi Koza , was intercepted. Around 360 kgs of suspected Ganja were allegedly recovered from the vehicle. The appellant was arrested, and a case was registered under the NDPS Act. The substance was later confirmed as Ganja by the Forensic Science Laboratory (FSL).

During his examination under Section 313 of the Code of Criminal Procedure (CrPC), the appellant admitted driving the vehicle but claimed he was unaware he was carrying Ganja, stating he was hired by someone named Kakho to transport goods from Manipur to Kohima for Rs. 10,000 and that the vehicle belonged to a cousin sister.

Appellant's Grounds for Appeal:

Mr. Sentiyanger, the appellant's counsel, raised several key arguments challenging the conviction:

1. Unauthorized Search and Arrest: The search of the vehicle and arrest of the appellant were conducted by PW-2, Kedukro Tero, a constable. Counsel argued that under Sections 41 and 42 of the NDPS Act and a relevant Nagaland Government Notification, a constable is not empowered to conduct search and seizure or arrest without proper authorization, which was lacking or invalid in this case, thus vitiating the entire process. The counsel cited the Supreme Court ruling in Roy V.D. Vs. State of Kerala on the illegality of searches/arrests by unauthorized officers.
2. Defective FSL Report & Chain of Custody: Significant doubts were cast on the FSL report. The test memo accompanying the sample allegedly mentioned the date 04.01.2022, while the seizure occurred on 19.01.2022, raising questions about whether the tested sample belonged to this specific seizure. Furthermore, the FSL report's description of the sample as "some plant material" without specifying it was flowering/fruiting tops of cannabis was questioned. The prosecution also failed to prove the proper chain of custody from seizure to FSL, with PW-1 admitting the seized Ganja produced in court had no mark or seal, and the Malkhana Register not being exhibited. The Supreme Court case Noor Aga Vs. State of Punjab on the burden of proof regarding chain of custody was cited.
3. Perfunctory Section 313 Examination: It was argued that the Trial Court conducted the examination of the appellant under Section 313 CrPC in a perfunctory manner, asking only 8 questions and failing to put all incriminating circumstances (including the FSL report) to him, thus denying him an opportunity to explain. Reference was made to Sharad Birdichand Sharda Vs. State of Maharashtra and State of Nagaland Vs. Lipok AO and Others , which hold that circumstances not put to the accused under S. 313 cannot be considered.
4. Lack of Conscious Possession: The appellant's statement denying knowledge of carrying Ganja was raised to dispute conscious possession.

State's Response:

Mr. K. V. Angami, the learned Public Prosecutor, defended the conviction, arguing that the date discrepancy in the FSL memo was likely a typographical error given the reference to the correct PS case number. He contended that the issues regarding the FSL report, Malkhana Register, and S. 313 examination were not raised at the trial stage or in the appeal memo, and no prejudice was shown regarding the S. 313 examination. The Public Prosecutor argued that the appellant's admission of driving the vehicle from which the contraband was recovered, coupled with the presumption under Sections 35 and 54 of the NDPS Act, established conscious possession. He also argued that the search was conducted during an MVCP and information was sent to the superior officer, suggesting delayed but acceptable compliance with Section 42(2), citing Karnail Singh vs. State of Haryana .

High Court's Findings:

Justice Kalita , after reviewing the evidence and submissions, found substance in the appellant's arguments. The court noted:

• PW-2, a constable, indeed conducted the search and arrest. Citing Roy V.D. Vs. State of Kerala and the Nagaland Government notification, the court unequivocally held that a constable is not empowered to conduct search, seizure, and arrest under Sections 41 and 42 of the NDPS Act, making the initial action illegal and vitiating the trial.
• The court found that independent seizure witnesses (PW-4, PW-5) were not present at the seizure spot but were called later to the police station to sign the memo, failing to prove seizure through independent witnesses present at the scene.
• Crucially, the court found the discrepancy in the FSL test memo date (04.01.2022 vs. seizure date 19.01.2022) highly suspect. It rejected the prosecution's "typographical error" claim as unsubstantiated, noting that this raised serious doubt about whether the sample tested was from the seized contraband.
• The failure to prove the chain of custody was also a significant factor, evidenced by the lack of seal/mark on the substance produced in court (as admitted by PW-1) and the non-exhibition of the Malkhana Register. The court emphasized, citing Noor Aga Vs. State of Punjab , that the prosecution must prove the chain of custody and that any doubt benefits the accused.
• The Section 313 examination was found to be perfunctory, with the FSL report and other incriminating circumstances not put to the appellant, violating the mandatory procedure and prejudicing the appellant's defence, as per precedents like Sharad Birdichand Sharda .

Decision:

Concluding that the prosecution "miserably failed" to comply with mandatory NDPS Act provisions, prove the chain of custody, and establish basic foundational facts necessary for conviction, the High Court set aside the judgment of the Special Judge (NDPS), Phek .

The appellant, Pfonyi Koza , was acquitted of the charges under Section 20(b)(ii)(C) of the NDPS Act and ordered to be set at liberty forthwith unless required in any other case.

The judgment underscores the strict procedural requirements placed on investigating agencies and trial courts in cases involving the stringent provisions of the NDPS Act, where non-compliance can lead to the collapse of the prosecution's case.

The court directed that the Trial Court record be returned along with a copy of the judgment.