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Judgment
[1] Heard learned counsel for the respective parties.
[2] This present appeal is filed under Section 374(2) of Cr.P C against the Judgment of Conviction dated 10.03.2026 and order of sentence dated 12.03.2026, passed by the learned Special Judge (NDPS), Khowai Tripura in connection with Case No. Special (NDPS) 07 of 2024, whereby the appellant was convicted under section 21(b) of NDPS Act.
[3] The prosecution story in brief is that, on 20.09.2023, the appellant was allegedly intercepted while driving a vehicle at Dhalabil Chowmohani, and upon search, 66 grams of suspected heroin was recovered from beneath the driver's seat. The contraband was seized, and after investigation, charge-sheet was filed against the appellant. During trial, the prosecution examined 13 witnesses. The appellant denied the allegations in his statement under Section 313 Cr.P.C. However, the learned trial Court convicted the appellant under Section 21(b) of the NDPS Act. The relevant contents of the Judgment of Conviction dated 10.03.2026 and order of sentence dated 12.03.2026, passed by the learned Special Judge (NDPS), Khowai Tripura in connection with Case No. Special (NDPS) 07 of 2024 is extracted as under:
Judgment of Conviction dated 10.03.2026
“........Thus, on the basis of the overall discussion and findings, it clear and final that the prosecution has proved its case beyond all reasonable doubts to the effect and extent that on 20.09.2023 at about 04:50 pm, the accused was found driving a vehicle bearing No.TR-04C-0671 and carrying 66 grams of heroin under his possession illegally and in contravention of the relevant provisions of the NDPS Act.
11.In view of the above, I therefore, hold the accused guilty for commission of offence punishable U/S-21(b) of the NDPS Act and he is convicted for the same. The accused is however, found not guilty for the offence punishable U/S-25/21(b) of the NDPS Act and is acquitted from the same.
12.The convict Soumitra Malakar is liable to be punished U/S-21(b) of the NDPS Act, however, a span of two days is allowed to him to participate in the hearing on question of sentence. The convict is accordingly taken into custody and remanded to J/C till. 12.03.2026.
13.I have also considered the facts and circumstances of the Case and the nature of offence committed by the convict and do hereby hold that the benefits of the provisions of the Probation of Offenders Act cannot be extended to him.
14.The convict shall be heard on the question of his sentence after 02 days and until then, he is remanded to J.C. till 12.03.2026.”
Order of sentence dated 12.03.2026
“Date: 12.03.2026.
15.HEARING OF CONVICT ON SENTENCE:
Convict is produced before me today from J.C. I have heard the convict on the question of his sentence and also taken note of the submissions made by Ld. Counsel appearing on his behalf. At the time of hearing, the convict pleads his innocence and stated that the entire allegations and evidence led by the prosecution are false. He further claims that his family depends upon him for their maintenance and livelihood and in the event of his jail sentence, they would only suffer. The convict further pleads that a minimum sentence or fine may be awarded to him. On going through the above and considering the menace of drugs in our society, I am of the opinion that this is not a fit Case, where leniency should be the approach of the Court, specifically in this type of offences.
16.Thus, in the instant Case, I hereby sentence the convict Soumitra Karmakar to suffer rigorous imprisonment for a term of 05 (five) years and also Order him to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) and in default of payment of the same, he shall suffer simple imprisonment for a term of 05 (five) months for commission of the offence punishable U/S-21(b) of the NDPS Act. 1985.
17.It is to be strictly noted that the period of 62 (sixty two) days suffered in custody by the convict, during investigation & trial, shall stand set-off.
18.Furnish a copy of this Judgment to the D.M. & Collector, Khowai, Tripura, for information.
Also furnish a copy to the convict free of cost...........”
[4] Aggrieved by the aforesaid impugned judgment of conviction dated 10.03.2026 and order of sentence dated 12.03.2026, passed by the learned Special Judge (NDPS), Khowai Tripura in connection with Case No. Special (NDPS) 07 of 2024, the appellant has preferred the instant appeal seeking the following reliefs:
“i.i. Admit this Appeal;
ii.ii. Issue Notice upon the Respondents;
iii.iii. Set aside the judgment of conviction dated 10.03.2026 and order of sentence dated 12.03.2026 passed by the Ld. Special Judge, Khowai, in Special (NDPS) No. 07 of 2024, and consequently acquit the appellant from all the charges framed against him;
iv.iv. Any other relief(s) as to this Hon'ble High Court may deem fit and proper.........”
[5] Mr. D. Saha, learned counsel appearing for the appellant submits that the judgment of conviction and order of sentence passed by the learned court below is unsustainable in law and facts. It is contended that there are material contradictions and inconsistencies in the prosecution evidence, lack of proof of conscious possession, and absence of reliable independent witnesses. It is further contended that there was an unexplained delay in producing the seized contraband before the Magistrate, in violation of mandatory procedural safeguards under the NDPS Act. He submits that learned Court below failed to appreciate that the alleged seized contraband was recovered on 20.09.2023 but was produced before the learned Magistrate only on 30.09.2023 i.e., after an inordinate and unexplained delay far exceeding the prescribed period of 72 hours which is a complete violation of law under the NDPS Act.
[6] It is also contended on behalf of the appellant that in the absence of any evidence to show that the parcel produced before the Court was retrieved from the Malkhana, it would create doubts regarding the genuineness of the alleged recovery. Learned counsel for the appellant therefore, urges before this Court to set aside the impugned judgment of conviction dated 10.03.2026 and order of sentence dated 12.03.2026 passed by the learned Special Judge, Khowai, in Special (NDPS) No. 07 of 2024 acquitting the appellant from all the charges framed against him. To support his case, learned counsel for the appellant has placed reliance on the contents of the order dated 27th February, 2025 of the Hon‟ble Supreme Court passed in Criminal Appeal No(s).923/2016. The said contents of the order of the Hon‟ble Supreme Court as referred by the learned counsel for the petitioner is quoted hereunder:
“........3. The learned counsel appearing for the appellant/State has taken us through the evidence of PW-3 (Head Constable Rahul Rishi). He deposed that on 10 February, 2010, a parcel was deposited with him. He stated that the parcel was sent to the FSL on 10 February, 2010 for chemical analysis. He also invited our attention to the evidence of PW-4 (Constable Manjeet Singh) who carried the parcel to the FSL.
4.The finding of the High Court is that there was no evidence produced on record either by examining the officer in charge of the Malkhana or by producing the entry in the Malkhana register to show that the parcel which was produced before the Court in the evidence of PW-1 (Head Constable Duni Chand) was the same which was deposited in the Malkhana.
5.In absence of any evidence to show that the parcel produced before the Court was retrieved from the Malkhana, it is not possible to find fault with the finding recorded by the High Court as the burden was on the prosecution to prove that what was produced before the Court was retrieved from the Malkhana..........”
[7] Per contra, Mr. R. Datta, learned P.P. opposes the submissions made on behalf of the appellant. He submits that there has been no procedural laches on the part of the State respondent. Mr. Datta, learned counsel for the State draws the attention of this Court to the letters dated 30.09.2023 addressed to the Dy.SP (DIB) Khowai, I/C District NDPS store, Khowai, District Tripura. The first letter indicates the prayer for taking out 06 Nos soap cage containing 66 grams suspected to be Heroin(11gram each cage) which was kept in District NDPS store, Khowai to produce before the learned Judicial Magistrate 1st Class Khowai, Court No.1 for drawing representative sample and correctness of inventory and the second letter indicates that suspected two nos. sample packed in a paper envelope marked as exhibit „A‟ and „B‟ and the same was collected from the seized total 6 nos of soap cage (Marked as H-1 to H-6) suspected Heroin weighed total-66 grams in presence of learned Court of JM 1st Class, Court No.1, Khowai Tripura and got correctness of the prepared inventory.
[8] Mr. Datta, learned P.P. further contends that the office in-charge, Khowai Police Station, Khowai Tripura on 20.09.2023 itself has informed the Superintendent of Police (C/S), Khowai Tripura, Khowai regarding the alleged incident by way of a letter and in the letter the subject is captioned as „Information as per regulation U/S-42(2) of NDPS Act-1985‟. It is also mentioned in the said letter that, after obtaining necessary permission, an Inspector along with staff left for Dhalabil Chowmuhani to verify the information. Thus, the question of non-compliance of provisions under the Section 42(2) of the NDPS Act, does not arise. Learned P.P., therefore, prays to dismiss the instant appeal filed by the appellant. During the course of argument, Mr. Datta, learned P.P. to support his submission, has placed reliance on the following judgments of the Hon‟ble Supreme Court:
Rizwan Khan v. State of Chhattisgarh reported in (2020) 9 SCC 627.
Gurmail Chand v. State of Punjab reported in 2021 (14) SCC 334.
State of Haryana v. Jarnail Singh and others reported in 2004(5) SCC 188.
[9] Heard learned counsel for the respective parties. Perused the material evidence on record.
[10] Upon overall analysis of the evidences, this Court finds force in the argument made by the learned P.P. appearing for the State. This Court is of the opinion that the appellant side has failed to prove any procedural lapse in the process of collecting evidences against him. It is also observed by this Court that during the seizure of contrabands, an Inspector himself was present at the alleged place who have prepared the Inventory of Seized Narcotic Drugs and Psychotropic Substances under Section 52A(2) of the NDPS Act, 1985. As discussed earlier, learned P.P. has drawn the attention of this Court to the inter-departmental communication i.e. one letter dated 20.09.2023 and two letters dated 30.09.2023, on perusal of the same, there remains no hesitation to say that the State has followed all the procedure as per law and there is no infirmity in the impugned Judgment of Conviction dated 10.03.2026 and order of sentence dated 12.03.2026, passed by the learned Special Judge (NDPS), Khowai Tripura in connection with Case No. Special (NDPS) 07 of 2024, whereby the appellant was convicted under section 21(b) of NDPS Act as the same has been passed examining all the evidences on records and accordingly, the same is affirmed. It is also opined that the judgment of the Hon‟ble Supreme Court as referred by the learned counsel for the appellant is not applicable to the fact and circumstances of the present case and thus, the same will not come to rescue the appellant herein.
[11] In view of the above, the present appeal stands dismissed. The impugned judgment of conviction dated 10.03.2026 and order of sentence dated 12.03.2026, passed by the learned Special Judge (NDPS), Khowai Tripura in connection with Case No. Special (NDPS) 07 of 2024 is hereby upheld.
[12] As a sequel, miscellaneous application(s), pending if any, shall also stand closed.