Ali Hussain vs The State Of Assam

(CAV)

Heard Mr. N. J. Dutta, learned counsel for the appellant. Also heard Mr. K. K. Parashar, learned Additional Public Prosecutor appearing for the State of Assam.

This is an appeal under Section 415 (2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned Judgment and Order of conviction dated 19.12.2025 passed by the learned Special Judge, NDPS Act, Cachar, Silchar in NDPS Case No. 24 of 2025, arising out of Katigorah Police Station Case No. 02 of 2025, wherein the appellant was sentenced to undergo Rigorous Imprisonment for 10 (ten) years for commission of offence punishable under Section 21 (C) of NDPS Act and to pay fine of Rs.1,00,000/- (Rupees one lakh) only in default to undergo further simple imprisonment for 6 (six) months.

The brief facts of the case is that the complainant, the O/C of Katigorah PS, Inspector Joseph V. Keivom lodged an "ejahar" in the Katigorah PS stating that on 09.01.2025 at about 8-30 p.m. an information was received from S.P. Cachar that some drug peddlers were coming from Salchapra side towards Katigorah on N.H. 06. The said information was received by the S.P. Cachar from the BSF intelligence, FGT, Silchar and at the same time the S.P. Cachar also sent Intelligence team of BSF, FGT, Silchar for conducting joint Operation to intercept the miscreants and also to recover the narcotics. The complainant along with WSI Sumita Gogoi, PS staff and BSF troops proceeded and reached at NH 06 near the waiting shed and laid ambush there and managed to apprehend Ali Hussain i.e. the accused. On search, they found 34 Nos. of soap cases containing suspected brown sugar weighing approx 342 grams from the possession of the apprehended accused and accordingly seizure was made. After observing all the formalities the complainant and his team returned to PS and handed over the seized drugs to the Sheristadar of the Malkhana of the PS. On the basis of FIR Katigorah PS Case No. 02 of 2025 was registered under Section 21 (C) NDPS Act.

After completion of investigation, the investigating officer submitted charge-sheet against the accused person, Ali Hussain under Section 21 (C) NDPS Act. On production of the accused, charge was framed against the accused person Ali Hussain under Section 21 (C) of NDPS Act. Charge was read over and explained to the accused person to which he pleaded not guilty and claimed to be tried.

Now, the testimonies of prosecution witnesses are referred below in concise manner.

P.W.1, Sri Kaushik Das, deposed in his evidence that he does not know the accused person who was virtually present in the court. He further deposed that about 2/3 months earlier one day while he was passing through Katigorah Chourangi area he saw gathering of police personnel and other local people. He also saw a person was nabbed by police with motorcycle and a bag was lying near the motorcycle. Police personnel took out some tablets from the said bag and counted the same in his presence. The recovered tablets were packed and sealed by police at the place of occurrence. Police prepared a paper and took his signature on the said paper. Exhibit P-1 is the said paper (seizure list) wherein Exhibit P-1(1) is his signature. Police also took his signature over the sealed packet. Police noted down the name of P.W.1, and address etc and recorded his statement.

In his cross-examination, P.W.1 stated that he signed only on one paper. The paper on which his signature was taken does not contain the detailed description of the seized items. No other document was shown to P.W.1.

P.W.2, Inspector Joseph V. Keivom, deposed in his evidence that on 09.01.2025 while he was posted at Katigorah PS as Officer-in-charge he lodged one "ejahar" and registered the same vide Katigorah PS Case No. 02 of 2025 dtd.10.01.2025 under section 21(c) of NDPS Act and entrusted WSI (P) Sumita Gogoi to investigate the case. Exhibit P-2 is the "ejahar" wherein Exhibit P-2(1) & 2(2) are the signatures of P.W.2. He further deposed that on that day a secret information was received through SP, Cachar as well as BSF, Intelligence, Cachar regarding paddling of narcotic substances and the SP, Cachar informed him that drug peddler was coming from Salchapra side towards Katigorah. The BSF personnel on receipt of the information proceeded towards Katigorah. On receipt of information, P.W.2 made a GDE vide No.19 dated 09.01.2025 and thereafter he along with WSI (P) Sumita Gogoi and other battalion staff preceded towards Katigorah Tiniali (tri-junction) National High Way No. 06. In-the-mean-time, BSF personnel from Harinagar camp also arrived at the place of occurrence at around 8-30 p.m. They laid ambush there and as soon as suspected drug peddler arrived at the place of occurrence by riding a motorcycle they intercepted him. The accused person who was virtually present in the court is the same person whom they had intercepted. Then the SP, Cachar, also came to the place o occurrence and he authorized WSI (P) Sumita Gogoi to conduct search and seizure. Then search was conducted by the seizing officer in presence of independent witnesses and during search 34 Nos. of soap cases containing suspected brown sugar were recovered from a bag which the accused person was carrying with him. Thereafter, said contraband were weighed and the total weight was approximately 348 gms. (without soap cases). Then the seizing officer seized those contraband substances in presence of independent witnesses and was again sealed in presence of witnesses. P.W.2 further deposed that the signatures of the witnesses were obtained over the sealed packet. After completion of all the formalities they returned to Katigorah PS along with the apprehended accused and the seized items. After reaching the PS, the seizing officer, handed over the seized items to Malkhana of Katigorah PS. Thereafter P.W.2 lodged the FIR.

P.W.2 deposed in his cross-examination that the search operation was conducted after sunset and before sunrise. He did not record the reason in writing as to why the search was conducted at night and what was the necessity/urgency of conducting the search at night. P.W.2 could not say how many BSF personnel were there at the place of occurrence and he also does not remember their names. P.W.2 did not give the detailed description of the soap cases in the FIR.

P.W.2 denied the suggestion of the defence that he did not state before the IO that the FIR was lodged by him on 09.01.2025, that after receipt of the information the BSF personnel also preceeded towards Katigorah, that the BSF personnel from Harinagar camp also arrived at the pace of occurrence at around 8-30 p.m., that the accused person came in a motorcycle and P.W.2 intercepted him, that total weight of recovered contraband substance was approximately 348 grams, that P.W.2 authorized WSI (P) Sumita Gogoi to conduct search and seizure and that the contraband substances were recovered from a bag which was carried by the accused person.

P.W.2 further stated that he does not remember the impression of the seal which was used for sealing the packet. P.W.2 admitted that Exhibit P-2 (FIR) is dated 10.01.2025 and not 09.01.2025.

P.W.3, Sri Rabindra Sinha, deposed in his evidence that he knows the accused person who was virtually present in the court. He further deposed that on 09.01.2025 at about 8-30 p.m. while he was posted at Katigorah PS the O/C of Katigorah PS asked him to go to near Gammon bridge. Accordingly, P.W.3 went there and saw the accused person who was virtually present in the court. After reaching of P.W.3 the S.P. Cachar and additional S.P. Cachar arrived there and in their presence the accused person who was carrying a bag in his motorcycle was searched and from inside the said bag 36 numbers of soap cases containing brown colour powdery substances were recovered. Thereafter, the seizing officer seized those NDPS items in his presence as well as in presence of independent witnesses. Then they returned to Katigorah PS along with the apprehended accused and seized the contraband items.

In his cross-examination, P.W.3 stated that his statement was written down by the O/C of Katigorah PS, Inspector Joseph V. Khaubom in a piece of paper on his own handwriting.

P.W.4, M.S. Oraon, identified the accused who was virtually present in the court and deposed in his evidence that accused person who was riding a motorcycle was apprehended in a joint operation by police and BSF personnel and from his possession 34 nos. of soap cases containing suspected drugs were recovered. The seized articles were weighed at the place of occurrence and the seizing officer prepared a seizure list. In the said seizure list P.W.4 had put his signature. Exhibit P-1(2) is the signature of P.W.4. He further deposed that after the completion of search and seizure police took the accused person along with the seized articles to police station and thereafter they left for their other duties.

P.W.4 stated in his cross-examination that whenever they go for any joint operation the details of their departure is noted down in their office register. At the relevant time P.W.4 was posted at Harinagar BSF camp. Exhibit P-1 consists of two pages and his signature was taken only in the 2nd page. The operation was launched on 09.01.2025. The total weight of the seized narcotics was 342 grams. P.W.4 did not specifically remember the colour, detailed description and the individual weight of each soap case containing narcotic/drugs.

P.W.5, Asfaqur Rahman, the Scientific Officer, deposed in his evidence that on 13.01.2025 while he was working as Scientific Officer, Drugs and Narcotic Division, RFSL, Silchar he received a parcel consisting of one Exhibit from the Joint Director-cum-Chemical Examiner, RFSL, Silchar vide Memo No.G/SR/80 dtd.10.01.2025 for examination in connection with Katigorah PS Case No. 02 of 2025 under section 21(C) of NDPS Act. Upon careful examination of Exhibit, basing on colour tests, Thin Layer Chromatography (TLC) and High Performance Liquid Chromatography (HPLC) techniques, presence of Heroin was confirmed in Exhibit SN-16/2025. Exhibit P-3 is the report of P.W.5 wherein Exhibit P-3(1) is his signature.

In his cross-examination P.W.5 stated that in their office they have a cupboard and he kept the parcel in the said cupboard separately, and that he has not submitted the worksheet along with his report.

P.W.6, Biswajit Dey, deposed in his evidence that on 09.01.2025 while he was posted at Katigorah PS on that day at about 8 p.m. a 'Naka' checking was set up and during checking one person with a motorcycle was detained with drugs and the officers who were present there seized those drugs. P.W.6 was deputed for maintaining traffic on the road at that time. P.W.6 was could not recognize the accused person who was virtually present in the court.

In his cross-examination P.W.6 stated that the place of occurrence is a market area. As P.W.6 was busy in controlling the traffic he did not see the occurrence but he heard about it.

P.W.7, Sri Uttam Kumar Sinha deposed in his evidence that on 09.01.2025 when he was posted at Katigorah PS as Sheristadar of Malkhana on that day WSI (P) Sunita Gogoi handed over a packet having 34 numbers of soap cases containing suspected brown sugar, one mobile handset and one motorcycle to him for keeping those in Malkhana. P.W.7 received by police in presence of P.W.8. Thereafter police prepared a seizure list and seized those contraband substances. Police obtained signature of P.W.8 on the sealed packet and on the seizure list. Exhibit P-1(3) is the signature of P.W.8. The signatures of the accused person were also obtained on the sealed packet.

In his cross-examination, P.W.8 stated that he was not present at the time of interception of motorcycle. However, seeing the crowd he stopped there. P.W.8 did not see any computer, printer at the place of occurrence.

P.W.9, David Hmar, deposed in his evidence that at the relevant time of incident he was posted at Katigorah PS and he identified the accused, who was virtually present. P.W.9 further deposed that he saw the accused at Katigorah PS. On the date of incident, he accompanied the O/C of Katigorah PS for a search operation. Thereafter, during 'Naka' checking some drugs were recovered from the possession of the accused which the accused was carrying in his motor-cycle. Seeing the police team, one of the accused fled away from the place of occurrence, but other was apprehended by them. P.W.9 did not notice the appearance of the apprehended person.

P.W.9 in his cross-examination denied the suggestion of the defence that he did not state before the IO that during 'Naka' checking some drugs were recovered from the possession of the accused person.

P.W.10, the IO, Sumita Gogoi, identified the accused who was virtually present and deposed in her evidence that 09.01.2025 while she was posted at Katigorah PS the O/C of the PS Inspector Joseph V. Keivom received an information from S.P. Cachar that some drug peddlers were coming via Katigorah and thereafter the O/C asked P.W.10 to proceed to the place of occurrence i.e. Katigorah Tiniali (tri-junction). Accordingly, P.W.10 went to the place of occurrence and set up a 'Naka' checking and during checking accused was apprehended and on search 34 Nos. of soap cases containing suspected brown sugar were recovered by police from the possession of the accused. The total weight of the recovered narcotics/drugs was found to be 342 grams. Thereafter, P.W.10 prepared a seizure list, obtained signatures of accused and independent witnesses on it. Exhibit P-1(4) is the signature of P.W.10 on the seizure list Exhibit P-1. The seized contraband drugs were packed and sealed at the place of occurrence and P.W.10 obtained the signatures of the witnesses and the accused person on the sealed packet. She further deposed that the video recording of the entire search and seizure operation was done at the place of occurrence. After completion of all the formalities P.W.10 along with his team left the place of occurrence along with the seized articles and apprehended accused person. After reaching the place of occurrence, P.W.10 handed over the seized articles to the in-charge of Malkhana. On the following day P.W.10 produced the seized articles before the court. P.W.10 also made player before the court for certification of inventory, photographs and for drawing samples. Exhibit P-7 is the inventory wherein Exhibit P-7(1) is her signature, Exhibit P-7(2) is the signature of learned Magistrate who put his signature in presence of P.W.10. The photographs of the seized items were taken in the court in presence of learned Magistrate. Exhibit P-8 is the photographs in three pages wherein Exhibit P-8(1) to 8(3) are the signatures of learned Magistrate. P.W.10 sent the samples to RFSL, Ghungoor through SP, Office, Cachar for chemical examination. Thereafter P.W.10 collected the RFSL report and after completion of investigation he submitted charge-sheet vide Exhibit P-10 against the accused Ali Hussain under section 21(c) of the NDPS Act. P.W.10 issued certificate under section 63 of BSA. Exhibit P-9 is the certificate issued by P.W.10 in connection with the sending of compact disc. Containing video footage; Exhibit P-9(1) is the signature of P.W.10.

In her cross-examination, P.W.10 stated that the search operation was done in between sunset and sunrise. It reveals from the cross-examination of P.W.10 neither the informant nor P.W.10 submitted any report in writing as to why the search operation was conducted in between sunset and sunrise. P.W.10 admitted that prior to her arrival at the place of occurrence the 'Naka' checking was going on. She also stated that there is a separate GDE in connection with setting up of the 'Naka' checking, but P.W.10 has not submitted the certified extract copy of the said GDE. P.W.10 did not examine Krishna Lal Goala as witness in this case though his name was mentioned in the FIR. In the FIR P.W.10 did not mention the names of the battalion personnel who were present at the place of occurrence. She further stated that statements of the seizure witnesses are computer typed. The place of occurrence is a market area. P.W.10 has not mentioned specifically in the seizure list about the weight of the individual soap cases. The time of the seizure list is not accurate but P.W.10 has mentioned there as 'at about'. P.W.10 has not given description of the impression of seal which was used in sealing the packets. P.W.10 further stated that she did not preserve the impression of seal. She also stated that she was not authorized by the O/C for taking the seized items from Malkhana to court and preparation of the inventory. P.W.10 recorded the statement of only one BSF personnel namely M.S. Oraon.

P.W.10 affirmed that P.W.2 did not state before her that he lodged the FIR on 09.01.2025, that after receiving the secret information the BSF personnel came from Harinagar camp and they arrived at the P.O. at about 8-30 p.m., that the accused person came in a motorcycle and P.W.10 intercepted him, that the S.P. Cachar also arrived at the place of occurrence, that total weight of the recovered contraband items were approximately 348 grams, that P.W.10 issued authority letter in her name for conducting search and seizure. It is also affirmed that that the informant P.W.2 did not state before P.W.10 that the contraband substances were recovered from a bag which the accused person was carrying with him.

P.W.10 admitted that during investigation she did not find any statement of Rabindra Singha taken by the O/C Katigorah PS. P.W.10 further admitted that she did not communicate the secret information in writing within 72 hours to her superior authority. She did not submit any detailed report within 48 hours for completion of the entire procedure of search and seizure.

On query by the court P.W.10 replied that the secret information was received by the O/C, Inspector Joseph V. Keivom.

P.W. Sumita Gogoi was also examined as Court witness. C.W.1 Sumita Gogoi deposed in her evidence that as per the direction of this court, she has have produced the certified extract copies of GDE No.019 dated 09.01.2025, GDE No.020 dated 09.01.2025, GDE No.023 dated 09.01.2025, GDE No.002 dated 10.01.2025, GDE No.007 dated 10.01.2025, GDE No.012 dated 10.01.2025, GDE No.017 dated 10.01.2025 and 024 dated 10.01.2025. All the GD Entries are certified by the O/C of Katigorah P.S., Inspector Joesph V. Keivom and she knows his signatures. Exhibit C-1, C-2, C-3, C-4, C-5, C-6, C-7 and C-8 are the certified extract copies of above mentioned GDEs wherein Exhibit C-1(1), C-2(1), C-3(1), С-4(1), C-5(1), C-6(1), C-7(1) and C-8(1) are is the signatures of O/C of Katigorah P.S. Exhibit C-9 to Exhibit C-11 are the original photographs of inventory wherein Exhibit C-9(1) to Exhibit C-11(1) are the signatures of the concerned Magistrate. Exhibit C-12 is the print out of details of the mail I/D by which C.W.1 sent the video recording to this court by her e-mail I/D.

Exhibit M.O.1 is her mobile phone (vivo) containing the entire video recording from which the mail was sent on 10.01.2025 to this court. Exhibit C-13 is the zimmanama by which she has received her mobile phone from this court.

She further deposed that upon perusal of the Exhibit P-9, it appears that she has mentioned about a Compact Disc, but the video recording was done in her mobile phone and thereafter it was transferred to a pen-drive. C.W.1 also deposed that apart from the pen-drive, she also sent the entire recording to the designated E-mail I/D of this court from her own E-mail I/D. The said video recording is available in her mobile phone.

During cross-examination by defence C,W.1 stated that Exhibit C-4 is dated 10.01.2025 at 12.47 hours. She has produced the certified extract copies of the GD entries after getting order from this court.

Mr. N.J. Dutta, learned counsel for the appellant has confined his submissions to two aspects of the matter referring to the order dated 10.01.2025 of the Judicial Magistrate First Class, Cachar, Silchar in Katigorah Police Station Case No. 02 of 2025, out of which the present case has arisen, a certified copy of which has been submitted. It is pointed out that it is clearly reflected in the said order that samples are taken from the whole ladies bag produced before the Judicial Magistrate First Class, Cachar, Silchar, which has been marked as MR 01/25 in seizure list in the following manner—

Learned counsel has referred to Rule 10 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, hereinafter referred to as the “2022 Rules” , which reads as follows:-

Despite the aforesaid clear mandate of the Rules, admittedly, after drawing small specimens from each of the 34 transparent polythene pouches of suspected brown sugar, the same have been mixed together into a mixture weighing 16 grams in total and the same was put in one transparent polythene pouch and out of the 16 grams of suspected brown sugar, 03 numbers of samples containing 5 grams each has been prepared and put in three different transparent polythene pouches, which were packed in three different envelopes marked as OS RS and DS. Therefore, the procedure adopted by the Seizing and Sampling Officer before the Magistrate is clearly violative of the mandate of Rule 10 of the Rule “2022 rules”. The even otherwise it is the case of the prosecution that 34 pouches containing suspected brown sugar was recovered and therefore, it is necessary to establish that all the 34 pouches contained brown sugar and the total quantity therefore had crossed the threshold for commercial quantity of heroin but since all the specimens drawn from each of the 34 pouches were mixed together, there remained no possibility of determining whether all the 34 pouches contained heroin so as to come to a finding that the weight of the contraband would place it in any of the three categories that is small, intermediate or commercial.

It is further submitted that there is nothing in the evidence to show that all the 34 pouches were of identical size and weight and it is not the case of the prosecution that the pouches were treated as identical or that arranging them in lots of 10, samples were drawn from one pouch each from each lot. Further no drug identification kit was used to test the contents of the packets. A Co-Ordinate Bench of this court while dealing with a bail application in Bail Application No. 1048 of 2024 in its order dated 05.08.2024 had occasion to observe that such a procedure for drawing of samples appears to be contrary to what has been provided by the “2022 rules”.

Rule 3 (2) of the 2022 Rules provides that, “if the narcotics drugs, psychotropic substance and controlled substance are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification.”

Similarly, Rule 10 (1) which pertains to drawing of sample provides that “one sample in duplicate shall be drawn from each package and containers seized”. However, in the instant case, instead of drawing one sample in duplicate from each of the 12 packages seized in this case, a homogeneous mixture was made, which is contrary to what has been provided in the 2022 Rules.

Rules 10(2) of the 1922 Rules provides that, where after colour test by the Drug Identification Kit, it is conclusively indicated that the packages are identical in all respect, then the packages may be bunched in lots of not more than 10 packets and from each such lot, one sample in duplicate shall be drawn, provided in the case of ganja, it may be bunched in lots of not more than 40 packages or containers.

As per section 76 (2) (d) (f), the Central Government may make rules for drawing of samples and testing and analysis of such samples. Pursuant to the said power, the Central Government has notified the Narcotics Drugs and Psychotropic Substance (Seizure, Storage, Sampling and Disposal) Rules, 2022 (referred to as ”2022 Rules” in this order) on 22nd December, 2022.

Sub-Section 2 of Section 52A of the Narcotic NDPS Act, provides as follows:

Therefore, while the aforesaid section itself does not lay down the manner of drawing samples, the 2022 Rules, more specifically, Rule 10 and Rule 3 thereof, steps in to provide a very specific methodology of drawing such samples.

In Bharat Aambale –Vs- The State of Chhattisgarh reported in 2025 INSC 78, it has been held as follows :-

From the above it follows that it is not every violation viz-a-viz Section 52 A of NDPS Act and consequently the Rules framed thereunder that vitiates the trial. The effect of such lapse on the credibility of the prosecution case is to be seen as also the prejudiced caused to the accused by such lapse. In the instant case, 34 pouches were recovered and he contents thereof were mixed together, in violation of the 2022 Rules. As a result, the contents of the 34 pouches lost their individual identity. Therefore, although the mixed up material tested positive for heroin, the total quantity (weight) of heroin is rendered indeterminable, in asmuch as, even if one of the pouches contained sufficient proportion of heroin, the sample that has been taken from the mixed up lot would test positive for heroin. In that case, the most that can be said to have been recovered from the accused, in terms of weight, is a small quantity. No doubt, in Hira Singh –Vs- Union of India reported in AIR 2020 SC 3255, wherein it has been held that the weight of neutral substance is also to be counted, the said principle would be applicable to the individual packets or containers only, and not when untested contents of all the containers are mixed together. In other words, only if positive samples from each container exist, then only the entire weight is to be taken into account.

The second limb of argument advanced by learned counsel for the appellant is regarding non-compliance with the provisions of Section 50 of the NDPS Act, which reads as follows:-

It is not disputed and is evident from a perusal of the relevant GD Entry, the FIR, the forwarding report as well as the charge-sheet that in each of these documents it has been stated that 34 pouches containing suspected drugs were recovered from the possession of the accused appellant. Nowhere has it been stated that the said contraband was recovered from a bag being carried by the appellant. Even the seizure list does not mention any such bag and none was produced in course of the trial, although witnesses have deposed that the recovery was made from a bag being carried by the appellant. In fact, it has been specifically stated in the charge-sheet that after search of the apprehended accused person, 34 numbers of soap cases containing suspected brown sugar weighing approximately 342 grams were recovered from his possession.

In such circumstances, the accused ought to have been informed of his right to be searched in the presence of a Magistrate or a Gadgeted officer but admittedly no such information was communicated to the accused appellant and there is no evidence to that effect either.

It is submitted that it is only during the course of the trial that the witnesses have deposed to the recovery of the contraband from a bag being carried by the appellant.

From the above, it would appear that search of person of the accused appellant was also carried out and regardless of the fact whether the actual recovery was made from a bag being carried by the petitioner, it was incumbent upon the police to have complied with Section 50 of the NDPS Act as held by the Hon’ble Apex Court in State of Rajasthan –Vs- Parmanand and Anr., in Criminal Appeal No. 78 of 2005, wherein it has been held as follows:-

In view of the aforesaid omissions and lapses on the part of the police, it is evident that the mandatory provisions of the Act and the relevant rules have not been complied with and the same is sufficient to vitiate the investigation as well as the trial and the factum of recovery itself has come under a cloud of suspicion.

The said discrepancies/violatives have not been explained with reference to any material by the prosecution in the course of hearing of the appeal.

For the aforesaid reasons, the impugned Judgement and Sentence cannot be allowed to stand and is accordingly set aside.

The appeal stands allowed. Appellant be set at liberty forthwith.

Send back the TCR.