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Judgment
This appeal is directed against the Judgment and Order dated 30.11.2023, passed by the Sessions Judge, Karimganj in Special NDPS Case No.04/2023, convicting, Rakesh Chandra Mal Das, (hereinafter, referred to as the appellant or the accused) under Sections 20(b) (ii) (C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (NDPS Act for short) to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 1,00,000/-(Rs. One lac) with default stipulation.
It would be apt to mention that, along with Rakesh Chandra Mal Das, Sukla Sah, Subhankar Das, Tapasya Das and Maya Sah, have also been convicted under the aforementioned Sections of Law.
Factual Matrix :
The informant WSI (P) Noor Neha Begum, lodged an FIR on 15.01.2023 to the effect that reliable information was received on 15.01.2023 that 5 persons booked a room at hotel Tourist Lodge at Badarpur and they were transporting suspected ‘Ganja’. The informant alongwith other Police Officials reached the tourist lodge and searched the bags of the said 5 (five) miscreants. After the search operation, 72.671 KGs of suspected ‘Ganja’ was recovered from the possession of the present appellant, Sukla Sah, Sbhankar Das, Tapasya Das and Maya Sah. The co-accused of the appellant is not before this Court in the present appeal. The suspected ‘Ganja’ was seized in the presence of local witnesses and all the accused persons were arrested.
The FIR was lodged as Badarpur P.S. Case No. 18/2023, under Sections 20(b)(ii)(C)/29 of the NDPS Act. The Investigating Officer (IO), embarked upon the investigation and after completion of investigation, submitted Charge Sheet against all the accused persons, including the present appellant under the aforementioned Sections of Law.
On appearance of the accused, charges were framed and the accused including the appellant denied their guilt and claimed innocence. To substantiate its stance, the prosecution adduced the evidences of 7 (seven) witnesses, who were vigorously cross-examined by the defence. On the incriminating circumstances, arising against them, statements of the accused, including the present appellant were accorded under Section 313(1)(b) of the Code of Criminal Procedure (Cr.P.C for short) and the tenor of their answers depict a plea of total denial.
Arguments for the Appellant :
The learned counsel for the appellant laid stress in her argument that, during the course of investigation, the investigating agency failed to comply with the guidelines and directions laid down in “Karnail Singh v. State of Haryana”, reported in (2009) 8 SCC 539; and has submitted that this decision is bad in law as Section 42 of the NDPS Act, has not been complied with. Compliance under Rule 10, of the Rules is also lacking and the Magistrate's order as mandated under Section 52A of the Act is vague. There are only two independent witnesses which is also a discrepancy in the prosecution case. It is further submitted that the Authority Letter marked as Exhibit P12/PW6 was not forwarded along with the chargesheet as the Authority Letter was kept in the CD. This has prejudiced the defence.
The evidence of PW1 and PW2, are not similar as both the witnesses have given distinct evidence, which cannot be considered as cogent evidence against the appellant. It is further contended that the purported authorization came at 2:45 P.M., after the search operation. The learned counsel for the appellant also emphasized through her argument that, the evidence of PW2 and PW4, clearly depicts that, there was no CCTV footage in the hotel. The evidence of the witnesses reflects that sampling was not carried out as per Section 52A of the NDPS Act and not in presence of the Magistrate and the certification of the inventory was missing.
It is further contended that, only one sample was forwarded to the Forensic Science Laboratory. It is argued that the independent witnesses PW4 and PW5, did not affix their signatures on the seized packets. The author of the Forensic Report was also not present as a witness. The presence of the accused has been vehemently denied by the learned counsel for the appellant. It is argued on behalf of the appellant that, as there was no CCTV footage in the hotel, the appellant's presence could not be affirmed by the prosecution. It is submitted that the evidence of PW7 in terms of Section 52A and sampling as per Rules 9 and 10, of the NDPS Rules 2022 were not followed in letter and spirit. The investigation is vague as there is no compliance of Section 42 and Section 52 A of the NDPS Act.
The learned counsel for the appellant has relied on the decision of the Supreme Court in “Darshan Singh v. State of Haryana” reported in (2016) 14 SCC 358; wherein, the Hon’ble Supreme Court has observed that, merely, writing First Information Report and forwarding the same to the Official Superior by the officer, who conducted search and seizure, does not constitute compliance under Section 42 of the NDPS Act. Compliance under Clause 1 and Clause 2 of Section 42 of NDPS Act will have to be followed separately. So stating, it is submitted that Section 42 (1) and (2) are not to be taken casually. The introduction of the document belatedly nullifies the Charge Sheet as the document relating to information to the authorised Senior Officer was not made a part of the charge sheet. It is submitted that when such a defence is remotely taken; it is unfair on the part of the prosecution. It is further emphasized through the argument on behalf of the appellant that Section 50 of the NDPS Act was not complied with.
Argument by the prosecution :
The learned Additional P.P., submitted through his argument that the appellant’s case can be assailed on three counts:-
It is submitted that the FIR was lodged on 15.01.2020, after the information relating to the incident was received at 1:30 P.M. and the time of receipt of the information, is important. It is submitted that, as mentioned in the GD entry, the I.O. obtained the permission from the higher authority and then the investigating team proceeded for investigation at 2:45 P.M. It is submitted by the learned Additional P.P., that, the GD entry is available in the Case Diary which reveals that after obtaining permission from the authority, the Investigating Officer (I.O. for short) cum informant, entered into the hotel room. The GD entries are marked as GD Entry No. 347, dated 15.01.2023, and GD Entry No. 348, dated 15.01.2023. At para 19 of the impugned judgment and order, the learned Trial Court has observed that “It is seen that PW 6, Noor Neha Begum, by her cogent version narrated that she got the authority letter to take necessary action from Additional S.P.(Crime), Karimganj for operation and the said authority letter has been marked as, Exhibit P12/PW 6; and Exhibit P12/(1)/PW 6; is the signature of the Additional S.P. (Crime) Karimganj, Shree Amit Raj Choudhury, which is known to her. On perusal of the Authority Letter, it is seen that, it was given by the S.P. (Crime), Karimganj, in reference to Badarpur P.S. GD Entry No. 347, dated 15.01.2023. Hence the question of violating Section 42 of NDPS Act does not arise as the informant has been duly authorised by the superior officer to conduct the search”
The next leg of the argument by the learned Additional P.P is that, Section 50, of the NDPS Act has to be complied with only in cases where body search is inevitable, whereas in cases relating to commercial quantity of ‘Ganja’, body search is not mandatory, moreso, when the contraband was inside the room and in bags and not hidden in trouser pockets or any part of the body. Para 24 of the judgment clearly elaborates the reason, why the learned Trial Court has come to a finding on Section 50 of the NDPS Act. It was held by the learned Trial Court in paragraph 24 and 25 as:-
“24.The Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Pawan Kumar as reported in 2005 (4) SCC 350 has observed that "the search was not only of the bag, but also of the person of the accused, however, the contraband was recovered only from the bag and not from the person of the accused therein. What we are trying to highlight is that although in Pawan Kumar (supra) the search was of the accused as well as the bag-yet since the recovery of the contraband was only from the bag, this Court took the view that Section 50 would have no application."
25.Therefore, as held by the Hon'ble Apex Court, benefit of section 50 of NDPS Act cannot be extended to Include bags or article from which the ganja was recovered. It is also pertinent to mention that the accused persons has not been charged for the money, ATM card or Aadhar card etc. which were recovered from their possession. As such, the plea taken by the learned defence counsel that accused are entitled to be acquitted for non compliance of section 50 of NDPS Act does not hold any merit.”
The learned Additional P.P has relied on the decision of the Hon’ble Supreme Court in “The State of Punjab Vs. Baldev Singh” reported in (1999) 9 SCC 172; wherein it has been observed that:-
“12.On its plain reading, Section 50 would come into play only in the case a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.”
Now the third leg of the argument by the learned Additional P.P, is that Section 52 A of the NDPS Act, has been sufficiently complied with, vide the order dated 16.01.2023, passed by the Trial Court. It is also submitted that, the independent witnesses have implicated the appellant. The learned Additional P.P, has relied on the decision of the Supreme Court in “Bharat Aambale Vs. State of Chhattisgarh” reported in (2025) SCC online 110.
On non-examination of witnesses, the learned Additional P.P. has relied on the decision of the Supreme Court in “Surinder Kumar Vs. State of Punjab” reported in (2020), 2 SCC 563. It is submitted that the answers of the appellant on the questions under Section 313 Cr.P.C were evasive. To every question, his answer was “that a false case has been brought up against him”. It is also submitted that, we cannot be oblivious of the rigours of Section 37 of the NDPS Act.
Decision of the Trial Court :
Discarding the submission of the defence that there were no eyewitnesses, the learned Trial Court has held that, PW4 Muzakkhir Hussain and PW5 Mahbubur Rahman, are independent witnesses and sons of the owner of the tourist lodge and they have candidly stated that, the accused persons including the appellant have taken a room in their hotel and they have described how the police have recovered the Ganja packets from their possession and how the Ganja was seized. The Trial Court did not accept the argument that a hotel room is a private space, and non-compliance of provisions of Section 42 of the NDPS Act, while searching a private place ought to be considered to be a gross violation of Section 42 of the NDPS Act. It was held that, in this case on hand, PW6, Noor Neha Begum, testified that she had Authority Letter to take necessary action from the Additional S.P. (Crime) Karimganj and she had also exhibited the Authority Letter as Exhibit P12/PW6 and the signature of the higher authority as Exhibit P12 (1)/PW6.
In relation to the submission of the learned defence counsel regarding notice under Section 50 of the NDPS Act, it was held by the Trial Court that, notice is not required to be issued under Section 50 of the NDPS Act, as the ‘Ganja’ was kept in bags and was not hidden in the body of the appellant or the other accused. In such a scenario, notice under Section 50 of the Act was not mandatory. While discussing the submission of the learned Additional P.P., the observation of the learned Trial Court has already been discussed in the foregoing discussions and in order to avoid prolixity, the observation of the learned Trial Court is not repeated at this juncture. It has also been held by the learned Trial Court that although, the IO failed to seize or produce the hotel register before the Court, but that by itself cannot be a ground to acquit the accused, considering the consistent and reliable version of the prosecution witnesses supported by the seizure exercise, which reveals that the seized drugs were recovered from the possession of the accused persons. The submission of the defence that the appellant and his co-accused were not found inside the hotel room, due to lack of CCTV footage as well as lack of registration of guests in the hotel register was discarded by the learned Trial Court.
Heard learned counsel Ms. Ashima Mandala through VC and learned counsel Ms. S. Das, present in the court, for the appellant and heard learned Additional P.P Mr. R. J. Baruah, for the state of Assam.
Analysis and Decision :
As this is a first appeal, the evidence can be re-appreciated. First and foremost, the argument of the learned counsel for the appellant, relating to inconsistencies in the evidence between the independent witnesses is considered. The independent witnesses in this case are Muzakkhir Hussain and Mahbubur, Rahman, who deposed as PW-4 and PW-5, respectively. Both witnesses are sons of Abdul Manan, the owner of the hotel.
PW 4, Muzakkhir Hussain testified that the incident occurred on 15.01.2023. He was, the receptionist of the tourist lodge at Badarpur. His brother, Mahbubur, was also present. At about 1:00 PM, two male and three female guests carrying eight or nine bags with them, asked for a room and room no. 8 was allotted to them. They booked two rooms. After half an hour, the police came and inquired if some people had booked a room in the hotel. He then took the police to the room no.8, where all the guests were present. The PW 4 identified all the accused as the guests in the room no.8. The police confronted them and asked about the contents in their bags. The guests/accused persons opened their bags and he, (PW 4) noticed ganja inside the bags. He further deposed that about 34 packets were found and the, police weighed the ganja, which weighed 72 kgs. The police also found mobile phones, money in the possession of the accused persons.
In sync with the evidence of PW 4, his brother, Mahbubur Rahman deposed as PW 5, that the incident occurred in the month of January ,2023. He was in the lodge along with his brother. At about 1:00 PM, two male and three female guests carrying nine bags with them asked for a room. The accused persons booked two rooms. All the accused persons entered into room no.8, and after half an hour, the police arrived and inquired about any guests who had checked into their hotel. They went into room no.8 and confronted the accused persons and asked them to open their bags.
Both PW-4 and PW-5, further deposed that they noticed ganja inside the bags. The ganja weighed around 72 kgs and the police prepared the seizure list vide Ext.P-11/ PW-4. The witnesses proved their signature on the Seizure List as Ext. P-11(1)/PW4 and Ext. P-11 (2)/PW-5. PW-4 and PW-5 testified that, the accused persons also affixed their signatures on the seizure lists and the ganja packets and one accused gave thumb impression. PW-4 and PW-5 testified that the police had taken photographs vide the Ext. P-1/PW-1 up to Ext. P-4/PW 1. Both PW-4 and PW-5 identified the material exhibits as M. Ext.-1 to M.Ext.-9, as the seized bags. They have identified M. Ext.-10 to M. Ext.-43 as the seized ganja packets and have proved their signatures as M. Ext.-10(1) to 43 (1) and M. Ext.-10(2) to M. Ext.-43(2). They have identified M. Ext.-44 to M. Ext.-61 as the other belongings seized from the accused. Both the witnesses have identified the accused present in the dock.
No dissimilarities or variations could be deciphered between the evidence of PW-4 and PW-5. The learned counsel for the appellant submitted that the time mentioned by PW-4 and PW-5 is 1:00 PM, whereas, the official witnesses testified that the search was conducted at 1:30 PM. This minor difference in time can be ignored.
Now the point to be pondered is that whether Section 42 of the Act has not been complied with. The appellant could not assail the cross-examination of PW6 that the superior authority did not authorize PW6 to proceed with the preliminary investigation by conducting search and seizure of the Ganja in the tourist lodge. PW6 has exhibited the authority letter and has identified the signature of the Additional S.P. (Crime) as Ext. P-12(1)/PW6. This procedure has been vigorously assailed by the learned counsel for the appellant. It is submitted that a copy of Ext. P-12/PW-6 was not furnished to the appellant. The Chargesheet marked as Ext. P-38/PW-7, which has been proved by the I.O., reveals the list of the enclosures as follows:-
· “8 nos of GDE extract,
· Search and seizure,
· Disposal of seized NDPS U/S 52-A,
· FSL report,
· 2 nos of 65-B certificate of PO and Sampling,
· Malkhana Certificate and Malkhana Extract, · Sketch Map, · Inventory report, · Correctness certificate U/s 52-A and · Photographs of sampling and PO.”
By projecting the list of the enclosures, the learned counsel for the appellant laid stress in her argument that the authority letter was not forwarded along with the Chargesheet. The appellant is thus highly prejudiced owing to the sudden production of the authority letter in the Court at the time of recording evidence and exhibiting the authority letter as Ext. P-12/PW-6. Now will the appellant be highly prejudiced by the sudden production of the authority letter at the stage of evidence? This question will be answered at the concluding part of the decision.
Relating to the argument submitted by the learned counsel for the appellant on Section 52A of the NDPS Act, the learned Addl. P.P. emphasized through his argument that the order of the Magistrate clearly reveals that Section 52A of the NDPS Act was scrupulously followed. However, the learned counsel for the appellant has submitted that the cross-examination of the witnesses clearly depicts that, Section 52A of the NDPS Act was not scrupulously, followed.
The learned counsel for the appellant has drawn the attention of this Court to the evidence of PW-6, Noor Neha Begum, who deposed that on 15.01.2023, while she was posted at Badarpur P.S. as SI of Police, she received secret information about some persons checking into a tourist lodge with bags of suspected ‘Ganja’. She registered a G.D. Entry No. 347, dated 15.01.2023, at around 01:30 PM and informed her superior officer. The in-charge then endorsed her to take necessary action and she got the authority letter from the Additional SP (Crime), Karimganj to conduct the search operation. She then left for the tourist lodge along with her team, which included SI, Bijoy Goswami, SI (P) Abhijit Gogoi, UBC Nurul Islam Borbhuiya, HG Abdul Halim and two other officials. They had carried their weighing machine along with them. They cordoned off the area and interrogated the receptionist of the tourist lodge. The receptionist (PW-4) informed the investigating team that five persons have booked two rooms in the tourist lodge and all of them have entered into room No.8. The investigating team was led by the receptionist to room No. 8 and the five accused persons were present in the room with nine bags. On being confronted, the accused persons revealed that they had ganja in their bags. The Bags were opened and 34 packets were found inside the bags. The packets were wrapped with brown tape. They opened the packets and weighed the ‘Ganja’ and the total weight of the Ganja recovered from these bags was around 72.671 Kgs. She has specifically, recorded the weights of each individual packet in the Seizure List. She also, seized six mobile phones from the accused persons, including the appellant and the IMEI numbers. are mentioned in the Seizure List. She seized the following from the accused persons:-· One PAN Card, · One Aadhaar Card, · Five photocopies of Voter ID Card, · One wristwatch and · Cash of Rs. 7000/- in the denomination of Rs. 500/-.
PW-6, further testified that the entire procedure was photographed and she prepared the sketch map of the place of occurrence. The accused could not produce any legal documents for transporting ‘Ganja’. The accused and the witnesses have also affixed their signatures on the seized materials. Thereafter, she and her team along with the accused persons proceeded to the police station. She deposited the seized materials at the Malkhana and handed over the accused persons to the Officer-in-Charge. She lodged the FIR. The Investigating Officer recorded her statement. The entire process was carried out on the basis of the MCD (Miscellaneous Case Diary) and she handed over the MCD to the Officer-in-Charge.
PW-6 has proved the Seizure List as Ext.-11/PW-4 and her signature on the Seizure List as Ext. P-11(3)/PW-6. She has identified the signatures of the appellant as Ext. P-11(9)/PW-6 to Ext. P-11(13)/PW-6 and the signature of the other accused including the thumb impression of the accused Maya Sah. She has proved her signature on the FIR, as Ext. P-5(2)/PW-6. She has identified the authority letter as Ext. P-12/PW-6 and the signature of the Additional S. P. (Crime), Karimganj, Sri. Amrit Raj Choudhury, as Ext. P-12(1)/PW-6. She has identified the photographs as Ext. P-1/PW-1 to Ext. P-4/PW-1 and Ext. P-13/PW-6 to Ext.P-21/PW-6, which are also photographs of weighing the ‘Ganja’ packets.
She submitted a certificate under Section 65B of the Indian Evidence Act, 1872 (Evidence Act for sort), vide Ext.P-22/PW-6. She has proved her signature as Ext. P-22(1)/PW-6 on the certificate. She has proved the sketch map as Ext. P-23/PW-6 and her signature on the sketch map of the P.O as Ext. P-23(1)/PW-6. She has proved the seized bags as M.Ext.1 to M.Ext.9 and the Ganja packets as M.Ext. 10 to M.Ext.42. The other belongings were also proved and identified as M.Ext.44 to M.Ext. 61.
This witness has denied in her cross-examination that it was not possible to complete the entire procedure within 03:00 PM to 04:25 PM. She has admitted in her cross-examination that the seized packets were initially weighed and then the signatures were taken on the seized packets. She has categorically denied that the photographs were not taken in the hotel room. Projecting the cross-examination of the PW6, the learned counsel for the appellant laid stress in her augment that the articles ought to have been seized in presence of the Magistrate and thereafter, the Magistrate ought to have certified the entire procedure as mandated under Section 52A of the NDPS Act. However, the evidence of the other Police Officials as well as the evidence of the I.O., Shafiqul Islam Mazumder, clearly reveals that the procedure mandated under Section 52A of the NDPS Act has been complied with.
The I.O. deposed that on 15.01.2023, he was posted at Badarpur P.S., as SI of Police. At that time, the O.C. endorsed him to conduct the investigation of Badarpur P.S. Case No. 18/2023 and the MCD was handed over to him. On perusal of the MCD, he found that WSI(P), Noor Neha Begum seized suspected ‘Ganja’ from the accused persons at the tourist lodge at Badarpur and brought the accused persons to the police station and deposited the seized articles in the police Malkhana. He recorded the statements of the informant and the other police officials and interrogated the accused persons and arrested them and forwarded them to the Court. He obtained the 34 packets of Ganja seized from the Malkhana and prepared the inventory and produced the inventory before the learned CJM, Karimganj with the Seizure List. He prayed for certification of the correctness of the inventory and drawing of samples and taking photographs in his presence. Three homogeneous samples were drawn in presence of the CJM, Karimganj. The details of the quantity, mode of taking samples are mentioned in the order dated 16.01.2023, passed by the learned CJM, Karimganj. Photographs of drawing samples were taken and the learned CJM, Karimganj, affixed his signature on the photographs. The seized amount of Rs. 7000/- was deposited in the treasury by the learned CJM. The sample D1 was forwarded to the Forensic Science Laboratory through the crime branch of the SP’s Office and the remaining seized articles and the samples were deposited in the Malkhana, vide G.D. Entry No. 383, dated 16.01.2023. Subsequently, the FSL report along with the remnant of the samples was received and the opinion was positive for cannabis (Ganja).
On conclusion of the investigation, he submitted charge-sheet against all the accused under Sections 20(b)(ii)(C)/29 of the NDPS Act. Now, the learned counsel for the appellant has submitted that only one sample was forwarded, which is not in accordance with the procedure prescribed under the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 (the Rules of 2022 for short).
It is further submitted, that as per the Rules, duplicate samples ought to have been drawn, but from the entire lot, only three samples have been drawn according to the evidence of PW7. There is no evidence of mixing the contraband together as is mandated by the Rules.
The learned counsel for the appellant has relied on the decision of the Supreme Court in “Simranjit Singh Vs. State of Punjab”, reported in (2024) 14 SCC 222, wherein it has been held that :-
“8.In paras 15 to 17 of the decision of this Court in Mohanlal case2, it was held thus: (SCC pp. 408-409)
15.It is manifest from Section 52-A(2)(c) (as given in para 14 in Mohanlal case2) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
As the learned Additional P.P as well as the learned counsel for the appellant has drawn the attention of this Court to the order dated 16.01.2023, passed by the learned CJM, the order is scrutinized by this Court. After scrutinizing the order, I find force in the argument of the learned Addl. P.P. The order clearly reflects that “as the packets are similar looking, the 34 nos. of packets containing suspected Ganja are divided into seven lots, of which the six lots have five packets each and the last one had four packets. Thereafter, packet no.01, 06, 11, 16, 21, 26 and 31 are selected from the lot. From each of the said packets, suspected Ganja of 100 grams are taken and the homogeneous mixture of the Ganja is made weighing 700 grams. The homogeneous mixture of the suspected Ganja of 700 grams is divided into three equal parts to form three separate samples, namely, S1, D1 and R1 respectively in my presence and I hereby certified the correctness of the list of samples so drawn. I also certified the correctness of the inventory. One of the representative sample viz. D1, shall be sent to FSL for necessary examination and the other representative samples shall be kept in the custody of the I.O.”
The Supreme Court has held in “Bharat Aambale Vs. State of Chhattisgarh” reported in (2025) 8 SCC 452; that :-
“47.As per Clause 2.5 of Standing Order 1 of 89 i.e. the relevant Standing Order in force at the time of seizure, where multiple packages or packets are seized, they first have to be subjected to an identification test by way of a colour test to ascertain which packets are of the same size, weigh and contents. Thereafter, all packets which are identical to each other in all respects will be bunched in lots, in the case of ganja, they may be bunched in lots of 40 packets each. Thereafter from each lot, one sample and one in duplicate has to be drawn. The relevant clause reads as under:
“2.5.However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn."
48.As per Clause 2.8 of Standing Order 1 of 89, while drawing a sample from a particular lot, representative samples are to be drawn, in other words, equal quantity has to be taken from each packet in a particular lot, that then has to be mixed to make one composite sample. The relevant clause reads as under:
"2.8.While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."
49.As aforementioned in the preceding paragraphs, the above Standing Order came to be repealed by the enactment of the NDPS Rules in 2022. However, as per Rule 29 of the aforesaid the NDPS Rules, notwithstanding such repeal of the erstwhile Standing Order(s), all actions that were done on the basis of such order or guidelines shall be deemed to have been done under the corresponding provision of these Rules. Furthermore, the procedure that was delineated in Clause(s) 2.5 and 2.8 of the said Standing Order have been reincorporated as Rules 10 and 11 in the NDPS Rules without any significant alteration.
50.The trial court in para 34 has clearly observed that all 73 packets that were seized were opened and the contents inside each packet were matched and an identification memo was prepared in that regard. Thereafter, two samples of 100 gm each were prepared by drawing representative samples/mixed samples and thereafter the remaining packets were sealed. The relevant observations read as under:
"All the 73 packets were opened and the contents inside them were matched and an identification panchnama was also prepared. Two sample packets of 100 grams each were prepared from the mixed ganja, after which two sample packets of 100 grams each and the remaining ganja were filled in 6 plastic bags and sealed and seizure proceedings were carried out."
51.Thus, it appears that identification test by colour was done, thereafter the 73 packets were bunched into two lots of a maximum of 40 packets each, and representative samples were drawn which were then mixed together to prepare the two sample packets. Thus, it can hardly be said that there has been any procedural lapse in terms of Section 52-A of the NDPS Act, rather it appears that the police have strenuously followed the process prescribed thereunder that was in force at the time of seizure and sampling.
52.Even otherwise, if the contention of the appellants was to be accepted in toto such procedural lapse has absolutely no bearing on the overall case of the prosecution and by extension the conviction of the appellant inasmuch as the entire material on record clearly establishes the recovery and seizure of the ganja at the instance of the accused.
53.Before we close this judgment, we may address one another aspect as regards Section 52-A of the NDPS Act. Wherever any non-compliance or contravention of either the provision or the Rules/Standing Order(s) thereunder is alleged, the same must be something tangible and not a mere bald assertion or superficial claim. The accused must impute something palpable to make good its case that there has been non-compliance of the mandate of the said provision.
55.However, a close reading of the aforesaid decision reveals that this onus on the prosecution will only encumber once such an issue of non-compliance arises for consideration. Although, we are in complete agreement with the aforesaid observations inasmuch as it would be for the prosecution to establish and prove compliance of Section 52-A of the NDPS Act, yet at the same time, we are of the considered opinion, that mere assertion by the accused that there has been non-compliance of the said provision may not be sufficient. The initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52-A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses. Such burden on the accused to establish contravention of Section 52-A of the NDPS Act will only be on the mere preponderance of probabilities, whereas once the foundational facts are established that raises an issue as regards the non-compliance of Section 52-A of the NDPS Act, the onus will entirely be on the prosecution to prove by cogent evidence that either: (1) there was substantial compliance with the mandate of Section 52-A of the NDPS Act, OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
56.We summarise our final conclusion as under:
56.1.Although Section 52-A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a Magistrate. Mere drawing of samples in the presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52-A sub-section (2) of the NDPS Act.
56.2.Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal. yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.
xxx xxx xxx
56.4.The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52-A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.
56.5.Mere non-compliance of the procedure under Section 52-A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
56.6.If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52-A of the NDPS Act.”
Reverting back to the present case, it is held that the order dated 16.01.2023 reveals that the procedure under Section 52A of the NDPS Act was properly followed and was more or less similar to the procedure adopted in the case of Bharat Aambale (Supra). In the light of the observation made in the case of Bharat Aambale, it is held that, a holistic and cumulative view of the evidence adduced by the prosecution is taken and appreciated. The other materials on record adduced by the prosecution, whether oral or documentary inspires confidence and satisfies this Court as regards the recovery as well as conscious possession of the contraband from the accused persons. Thus, this Court, without hesitation, holds that Section 52 A of the NDPS Act was followed.
The PW-7, IO has proved the certificate under Sub-section 3 of Section 52A of the NDPS Act as Ext. P-32/PW-7, which clearly reveals that the correctness of the inventory has been certified by the learned CJM. PW-7 has also proved the inventory dated 16.01.2023 as Ext.P-30/PW-7, which clearly reveals that 72.671 Kgs of suspected Ganja kept in 9 (nine) different bags of different colour and sizes were produced from the Malkhana to prepare the inventory and for drawing the samples. PW-7, categorically deposed that he had prayed for certification of the correctness of the inventory and drawing of samples and taking photographs in the presence of the CJM. The homogeneous samples were also drawn in presence of the CJM and the details of the quantity, mode of taking samples were specifically mentioned in the order dated 16.01.2023, which has been discussed in the foregoing discussions at paragraph
The I.O. has also exhibited the 4 (four) photographs relating to drawing of samples, weighing, packing and sealing the samples. Ext. P-33/P-7 to P-36/P-7, are the 4 (four) photographs relating to the drawing of samples in presence of the CJM. Instead of drawing, duplicate samples, 3 (three) samples were drawn in presence of the Magistrate under Section 52A of the NDPDS Act. As a Judicial Officer, supervised the process and verified that 100 grams were drawn from each lot, the drawing of samples as D-1, S-1 and R-1, instead of duplicate samples, can be treated as safe, enhanced and secure measure rather than the futile flaws. The defence cannot argue that the samples were tampered with by the police, as the entire process was conducted under judicial oversight.
It has also been held by the Hon’ble Supreme Court in Bharat Aambale (supra) that “mere non-compliance of the procedure under Section 52A or the Standing Orders/ Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution case doubtful, which may not have been there, had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses”.
In the instant case, the evidence is robust and inspires confidence. All the witnesses have consistently described how the contraband was seized from the place of occurrence. Methodically, the contraband was deposited in the Malkhana after seizure of the contraband and while producing the contraband before the CJM, the I.O. took the contraband from the Malkhana and produced the same before the CJM for drawing samples from the lot. The Malkhana certificate has been identified by the I.O. as Exhibit P-28/PW7 which was issued to PW-7 by PW6 as the Malkhana In-charge. Thereafter, the contraband was produced before the CJM and divided into equal amounts, out of the total no. of 34 packets found inside the 9 bags. All the witnesses have specifically testified that 34 packets were found inside the 9 bags. The lots were equally divided into 6 groups from the similar looking 34 packets. The photographs taken and proved by the I.O. and the complainant clearly reveal that the packets were of similar looking sizes. From these packets, homogeneous mixture of Ganja was prepared and samples were drawn as per the standing order 1/89/Rules of 2022.
Thus, the entire procedure does not suffer from any defect in the quality of the samples. Out of the 3 samples, sample marked as D-1 was forwarded for forensic analysis which along with the remnant was returned with report. Relying on the decision of the Hon’ble Supreme Court in Bharat Aambale (supra), it is held that the argument on behalf of the appellant that Section 52A of the Act has not been scrupulously complied with, can be safely brushed aside.
Another question that falls for consideration is that, whether the accused is prejudiced because a copy of the authorization letter marked as Ext.-P-12/PW6, was not furnished to the accused to be prepared with his defence.
After scrutinizing the evidence on record, it can safely be held that a letter of authority was duly issued. Such a letter of authority may be issued even after the commencement of the investigation in urgent cases, when the IO has to act without delay to prevent tempering of evidence or concealment of the contraband.
Here in this case, the investigating team swung into action and immediately went to the place of occurrence at about 1:30 PM, whereas, the authority letter allegedly was issued at 2:45/2:40 PM. This delay is not fatal to the prosecution.
The learned counsel for the appellant laid stress in her argument that the purported authority letter marked as Ext. P.-12/PW6 was suddenly produced at the time of adducing evidence, to the disadvantage of the appellant.
The Chargesheet marked as Ext. P-38/PW-7, and proved by the I.O., PW-7, (Shafiqul Islam Mazumder) clearly reveals that the authority letter issued by the Additional SP (Crime) was not forwarded along with the Chargesheet making it palpably clear that a copy of this letter has not been furnished to the appellant. The appellant has every right to get clone copies of the documents which will be used as evidence against him, as being mandated by Section 207 and 208 of the Cr.P.C, moreso, because of the right of the appellant to a fair trial enshrined in Article 21 of the Constitution of India.
In any case, the authority letter as per Section 42(2) and 43 of the NDPS Act is not required to be proved in this case as explanation to Section 43 of the NDPS Act is clear that a hotel room per se may not be a private space. As per explanation to the Section 43 of the NDPS Act, a hotel is a public place. The learned counsel for the appellant has relied on the decision of the Hon’ble Supreme Court in Directorate of Revenue & Anr Vs. Mohammed Nisar Holia reported in (2016) 11 SCC 687, wherein, it has been observed that there may not be any distinction between a person’s place of ordinary residence and the room of a hotel. This judgment was also placed before the learned Trial Court and the Trial Court has correctly held that the ratio of decision in Mohammed Nisar Holia (supra) is not applicable to this case. It has also been held in Mohammed Nisar Holia’s case that:
“44.Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefor coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not places.”
Reverting back to this case on hand, it is held that the ratio of the decision of Mohammed Nisar Holia’s case (supra) is not applicable to the instant case. It has been held in Mohammed Nisar Holia's case that a hotel room may be a space where an individual has occupied a room. Contrary to Mohammed Nisar Holia’s case, here in the tourist lodge, 5 (five) persons have entered into room No. 8, carrying 9 bags of Ganja. They were not enjoying any private space inside the hotel room. As soon as the entire investigating team walked into the room, they found 5 (five) persons inside the room, which also includes the appellant. A view which is not a deciding factor of the entire judgment cannot be interpreted in this manner, to the advantage of an accused. We cannot ignore the fact that it has been held in Mohammed Nisar Holia's case (supra) that subject to the ordinary activities in regard to maintenance or housekeeping of the room, the guest is entitled to maintain his privacy. Thus, checking the room for illegal contraband also falls within the realm of maintenance of the room. A hotel room cannot be allowed to be a hub for storing illegal contraband. The room was not occupied as a private space by a couple or by an individual, in this case. People were assembled inside the room while transporting drugs. As per statutory provisions, this room, which was as a transit for 5 (five) persons to store the contraband, cannot be considered to be a hotel room and a private space, despite the fact that it was a room inside the hotel. A hotel as per the statutory provisions of the NDPS Act, is a public space and not a private space. It can be safely held that the learned counsel for the appellant has wrongly interpreted the decision of the Hon’ble Supreme Court in Mohammed Nisar Holia (supra).
As the authority letter has been disputed, the argument of the learned counsel for the appellant that the Additional S.P. (Crime) ought to have been examined as a witness is relevant. It has been argued on behalf of the appellant that the appellant has been highly prejudiced as a copy of the authority letter was not furnished to him to prepare his defence.
The evidence, however, clearly reveals that when the authority letter was produced and exhibited by PW6, no objection was raised nor the authority letter was disputed on cross-examination of PW-6. Now, the authority letter, Exhibit P12/PW6 has become a part of the record and has also been proved as evidence without any objection from any corner. In any case this authority letter is not a crucial piece of evidence as a hotel is a public place. Rather, this authority letter fortifies the evidence against the appellant. This Court also concurs with the finding of the learned Trial Court relating to Section 50 of the NDPS Act.
On deciding the core issues, the other relevant issue is that the expert, whose report revealed that the contraband was nothing but cannabis (Ganja), was not examined as a witness. Although all the evidence is not required to be discussed elaborately, the evidence of all the other witnesses are summarized for better understanding of this case.
UBC, Nurul Islam Barbhuiya, PW-1, as stated by PW-6 was one of the team members of the investigating team. He has testified that, he along with PW-6 who received information about transportation of drugs went to the tourist lodge at Badarpur at 1:30 PM. Similarly, other team members, SI, Abhijit Gogoi, deposed as PW-2 and Bijoy Goswami, deposed as PW-3 that they went to the tourist lodge at around 1:30 PM along with Noor Neha Begum (PW-6). The receptionist was confronted by PW-6 about the miscreants and the receptionist informed them that five persons have occupied a room in the tourist lodge. The witnesses PW-1, 2 and 3 deposed that they went inside the room and saw the accused persons in the room. The accused persons were in possession of nine bags and as ordered by PW-6, the accused persons opened their bags and 34 packets of Ganja were found inside the bags. On opening the packets, it was found that they were carrying 72 KGs of Ganja, and all the packets of Ganja were seized in their presence and the presence of two independent witnesses. Cash amounting to Rs. 7,000/- to Rs. 8,000/- was also seized from the accused persons.
All the witnesses, namely, PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW-7, identified the appellant along with the other accused persons. The following exhibits were identified and proved by PW-1, PW-2 and PW-3:
· Ext. P-1/PW-1- photograph of witnesses and accused and recovered Ganja packets;
· Ext. P-2/PW-1, photograph of the accused affixing their signatures on the Ganja packets.
· Ext. P-3/PW-1- photograph of the accused affixing signature on Ganja packets;
· Ext. P-4/PW-1- photograph of the accused Maya Sah affixing her thumb impression on Ganja packets;
· M.Ext.-1 to M.Ext.-9- seized bags containing Ganja;
· M.Ext.-10 to M.Ext.-43, seized Ganja packets containing the signatures of the witnesses and accused persons;
· M.Ext.-44 to M.Ext.-49, seized mobile phones;
· M.Ext.-50- PAN Card;
· M.Ext.-51-Aadhar Card;
· M.Ext.-52 to M.Ext.-55- ATM Cards’
· M.Ext.-56 to M.Ext.-60- Xerox copy of Voter IDs;
· M.Ext.-61 wrist watch.
The above exhibits have also been identified and proved by the I.O, PW-7. The witnesses were cross-examined in extenso, but no contradictions under Section 145 of the Evidence Act, qua 162 of the Cr.P.C could be elicited through the vigorous cross-examination of all the witnesses. Suggestions were denied by the witnesses and some legal points were disputed, which were reflected through the cross-examination of the all the witnesses, but it would be pertinent to reiterate that, no contradictions could be elicited under Section 145 of the Evidence Act vis-à-vis Section 162 of the Cr.P.C.
In addition to the exhibits mentioned in the foregoing discussions, the I.O., Sri. Shafiqul Islam Mazumder as PW-7 has proved some more documents and materials produced by the prosecution as follows:-
· Ext.P-24/ PW-7- extra copy of Badarpur P.S., G.D Entry No. 353, dated 15.01.2023, relating to depositing seized articles in Malkhana;
· Ext.P-25/ PW-7, extract copy of Badarpur P.S., G.D Entry No. 371, dated 16.01.2023, relating to bringing out the seized materials from the Malkhana by the I.O.;
· Ext.P-28/PW-7, Malkhana Certificate issued by the PW-6 as Malkhana I.C. to PW-6;
· Ext. P.-29/ PW-7- Treasury Challan after depositing Rs. 7000/- in the treasury;
· Ext.P-30/ PW-7- Inventory dated 16.01.2023 prepared by PW-7 and seen by CJM;
· Ext.P-31/ PW-7- collecting the sample for forwarding the same for Forensic Examination by S.P. Karimganj along with a copy of Test Memo and receipt;
· Ext.P-32/ PW-7- Certificate under Section 52A (3) of the NDPS Act issued by the learned CJM along with a copy of order dated 16.01.2023;
· Ext.P-33/ PW-7 to Ext.P-36/ PW-7- Four photographs relating to drawing samples, weighing, packing and sealing of the samples;
· Ext.P-37/PW-7- Collecting the FSL Report along with the forwarding;
· Ext.P-38/PW-7 is the Chargesheet and IO’s signature on the Chargesheet as Ext.P-38(1)/PW-7;
· Ext.P-39/PW-7-Cerficicate under Section 65B of the Evidence Act;
· M.Ext.-62- remnant received back from the FSL (now at present DFS) in closed envelope( sample D-1); and
· M.Ext.-63 and M.Ext.-64-Duplicate sample (R-1) & (S-1) respectively.
It would be apt to reiterate that no contradictions could be elicited through the cross-examination of the I.O vis-à-vis the cross-examination of all the witnesses. A scrutiny of the evidence adduced by PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6 clearly reveals that the forensic report was received and that the said forensic report confirms the contraband to be Cannabis (Ganja). The exhibits have been scrutinized by this Court.
The learned counsel for the appellant has relied on the decision of the High Court of judicature at Delhi in Nizamuddin Vs. State reported in (1994) SCC OnLine Del 568; wherein, it has been held that :-
5.The submission of the learned counsel is that under Section 293 (4)(e) of the Code, the officials named are: the Director. Deputy Director and Assistant Director of the Central Forensic Science Laboratory. If the report is given by any of these officers, then it is per se admissible in evidence. In case the report is not given by any of the three named officials, in that event that official has to be examined in the court and in the absence of his examination in court, the report becomes inadmissible, and the report in question cannot be read in evidence and consequently in the absence of the report, there is nothing on record to prove that the alleged substance recovered by police from the accused/appellant was charas. In case the prosecution is not able to establish that the substance recovered from the accused was charas, in that event the accused cannot be convicted of an offence committed under Section 20 of the N.D.P.S. Act. Section 293 of the Code of Criminal Procedure reads as under:
"293.Reports of certain Government scientific experts. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2)The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3)Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the fact of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:-
(a)any Chemical Examiner or Assistant Chemical Examiner to Government;
(b)the Chief Inspector of Explosives;
(c)the Director of the Finger Print Bureau;
(d)the Director Haffkeine Institute, Bombay;
(e)the Director (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f)the Serologist to the Government".
6.According to the aforesaid Section, the report given by the Scientific. Experts mentioned in Section 293(4) (e) of the Code would be admissible in evidence. Those officers are the Directors, Deputy Director or Assistant Director. Mr. Bansal cannot fall in any of the three categories and in absence of his being examined in court, the report submitted by him cannot be read in evidence. Learned counsel for the appellant relied on two judgments of this Court Heera Lal v. State, (1993) 52 DLT 231. In this case also the person who submitted report was Mr. C.L. Bansal, Senior Scientific Assistant (Chemistry, Central Forensic Science Laboratory), Central Bureau of Investigation, Delhi. In the said judgment, it has been laid down that the report is not by the expert, as contemplated by Section 293 of the Code. Therefore, the said statement not being under the hand of a Scientific Expert mentioned in subsection 4(e) of Section 293 of the Code, cannot be used as evidence in trial without being proved. In that case also Mr. Bansal was not examined and the court held that it is not established on record that the substance which was recovered from the possession of the appellant was charas. Since proof of the basic fact is lacking the appellant cannot be convicted under Section 20 of the N.D.P.S. Act.”
In the instant case, the opinion of the expert has been proved by PW-7 as Ext.P-37/ PW-7. The learned counsel for the appellant laid stress in her argument that the expert in this case is not a Director (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory as mandated under Section 293 of the Cr.P.C. Therefore, it was the duty of the Court to examine the Scientific Officer, who had given the opinion relating to the sample marked as Ext. D-1. As the Court has failed to examine the Scientific Officer, the appellant is highly prejudiced by the erroneous order of conviction passed by the learned Trial Court.
In this case, the decision of the Supreme Court in Kailas-versus-the State of Maharashtra is relevant. A later decision of the High Court of Judicature at Allahabad in Yashpal versus State of UP and another is also relevant. In Special Leave Petition Criminal No. 4646 of 2025 in the case of Kailas vs The State of Maharashtra reported in (2025) SCC OnLine SC 1977, vide order dated 15 September, 2025, it has been held by the Supreme Court that :-
“21.As far as non-production of Chemical Examiner as a witness is concerned, under Section 293 of CrPC:- Reports of certain Government scientific experts. --- (1) Any document purporting to be a report under the hand of a government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2). The court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report.
(3). Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible officer of a Chemical Examiner is admissible even if he is not produced as a witness though, the Court may summon and examine him as to the subject matter of the report. Nothing is there in High Court’s judgment to show that before the trial court any application was moved to summon the Chemical Examiner but the same was rejected. In paragraph 19 of its judgment, the High Court records that no specific order was passed by the trial judge while admitting the CA (Chemical Analyst) report. The High Court thereafter goes on to observe that in cases under NDPS Act as and when a CA report is tendered, the Court must insist the prosecutor to examine the CA. In our view, there is no such requirement of law that Chemical Examiner would have to be called in each NDPS case to prove the report when it is otherwise admissible under sub-section (1) of working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4). This section applies to the following Government scientific experts, namely:-
(a)any Chemical Examiner or Assistant Chemical Examiner to Government;
(b)the Chief Controller of Explosives;
(c)the Director of the Finger Print Bureau;
(d)the Director, Haffkeine Institute, Bombay;
(e)the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f)the Serologist to the Government.
(g)any other Government scientific experts specified, by notification, by the Central Government for this purpose.
Moreover, from the judgment of the trial court it appears that the Chemical Examiner’s report was admitted in evidence as Exh Nos.81 and 82. Nothing is there in High Court’s judgment that any objection was raised in respect of exhibiting the Chemical Examiner’s report. In such circumstances, reason (b) supra assigned by the High Court for ordering re-trial is not sustainable.”
It has been held by the High Court of Judicature at Allahabad in Yashpal (supra) that :
“12.In the case of Kailas S/O Bajirao Pawar Vs. The State of Maharashtra, 2025 INSC 1117, the Hon'ble Supreme Court has held that the report of a chemical examiner is admissible under Section 293 of Cr.P.C. even if he is not produced as a witness. Paragraph No.21 of Kailash (supra) is reproduced hereunder:-
21.As far as non-production of Chemical Examiner as a witness is concerned, under Section 293 of CrPC, report of a Chemical Examiner is admissible even if he is not produced as a witness though, the Court may summon and examine him as to the subject matter of the report. Nothing is there in High Court's judgment to show that before the trial court any application was moved to summon the Chemical Examiner but the same was rejected. In paragraph 19 of its judgment, the High Court records that no specific order was passed by the trial judge while admitting the CA (Chemical Analyst) report. The High Court thereafter goes on to observe that in cases under NDPS Act as and when a CA report is tendered, the Court must insist the prosecutor to examine the CA. In our view, there is no such requirement of law that Chemical Examiner would have to be called in each NDPS case to prove the report when it is otherwise admissible under sub-section (1) of Section 293 of CrPC. Moreover, from the judgment of the trial court it appears that the Chemical Examiner's report was admitted in evidence as Exh Nos.81 and 82. Nothing is there in High Court's judgment that any objection was raised in respect of exhibiting the Chemical Examiner's report. In such circumstances, reason (b) supra assigned by the High Court for ordering re-trial is not sustainable.
13.Therefore, in view of the language of Section 293 Cr.P.C. and the judgments of the Hon'ble Supreme Court, expert evidence is advisory in nature, and summoning of an expert is warranted only when the court finds the opinion to be unclear or insufficient for a just decision in the case. The court cannot be compelled to summon the scientific expert in terms of Section 293 Cr.P.C.
14.Furthermore, the applicant or his counsel did not raise any objection on 09.09.2025 when the report of the Scientific Officer dated 14.02.2025 was exhibited as Exhibit Ka-19 by PW-6. The statement of PW-6 has not been appended to the present application. PW-6, when appeared before the trial court could have been cross-examined with respect to the Forensic Science Laboratory report dated 14.02.2025. It has also not been clarified as to why no objection was raised in this regard by the defence counsel on 09.09.2025 at the time of examination of PW-6 and why the application was moved at a belated stage. It appears that the aforesaid application dated 14.01.2026 was moved in order to cause delay in the trial. The applicant failed to demonstrate as to how such variation, if any, would cause any prejudice to his defence. Even if any contradiction is found on the face of the record, which the prosecution did not explain satisfactorily, the benefit thereof would accrue to the applicant-accused at the appropriate stage of the trial.”
In the instant case too, it is apparent that no objection was raised when the report of the Chemical Examiner was exhibited by the PW-7. Neither the accused nor the appellant disputed that the contraband seized in connection with this case was not Ganja or cannabis. Another prominent feature was that the identification of the appellant was not disputed. All the witnesses have identified the appellant as one of the miscreants, who were in possession of Ganja or cannabis.
The decision of the Supreme Court in Kailash (supra) has been relied by the High Court of Judicature at Allahabad in Yashpal (supra) that the report of a scientific officer relating to the contraband in connection with a case is sufficient and the scientific officer may not be called by a court as witness. The failure of examination of a scientific officer does not extend any benefit to the accused or the appellant. The report of a Scientific Officer can be accepted as a report submitted by the Director, Assistant Director or Director of a Forensic Science Laboratory of the State or Central Forensic Science Laboratory of the Centre. The report can be accepted as Expert's opinion under Section 45 of the Evidence Act. A Court may not deem it necessary to call for the scientific officer as a witness in support of his report.
Thus, the report of the Scientific Officer that the contraband found in possession of the appellant and his co-accused was nothing, but ‘Cannabis’/’Ganja’, cannot be discarded. The Scientific Officer’s report clearly reveals that the contraband was nothing but Cannabis (Ganja).
In view of the foregoing discussions, it is held that the entire investigation was conducted meticulously. The decision of the learned Trial Court does not suffer from any infirmity. The appellant was imposed the minimum punishment prescribed.
Thereby, the judgment and order of the learned Trial Court dated 30.11.2023 in connection with Special NDPS Case No. 04/2023 passed by the Sessions Judge, Karimganj, convicting the appellant Rakesh Chandra Mal Das, is upheld, modifying the default stipulation. The conviction and sentence is upheld. The appellant is held guilty of offence under Sections 20(b)(ii)(c)/29 of the NDPS Act and is sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 1,00,000/-(Rupees One Lac) and in default of payment of fine to undergo rigorous imprisonment for 3 (three) months.
The period of detention already undergone by the appellant during investigation and trial, is set off with the custodial sentence.
Appeal is dismissed.
Send back the Trial Court Records.