Trial Court Believed Prosecution Story In Haste, Convicted Without Seeking Production Of Contraband: Gauhati HC Overturns NDPS Conviction

The Gauhati High Court recently set aside the conviction and sentence order passed by the Trial Court under Section 20 (b) (ii) (c) of NDPS Act on the ground that the seized contraband were not produced before the Trial Court and no inventory was prepared by the magistrate.

The single judge bench of Justice Malasri Nandi observed:

“In the case in hand, there is no denial of the fact that the prosecution has not filed any such application for disposal/ destruction of the allegedly seized bulk quantity of material, nor was any such order passed by the magistrate. It is pertinent to mention here that the trial court appears to have believed the prosecution story in a haste and awarded conviction to the appellant without warranting the production of huge quantity of contraband.”

The case of the prosecution side was that an FIR was lodged on March 09, 2020, alleging that on March 08, 2020, on receipt of a specific information regarding transportation of narcotic drugs in a white colour Maruti car from Mazbat towards Orang, a naka checking was conducted at Mazbat new market area. Accordingly, during naka checking a white Maruti car was thoroughly checked and during search the accused appellant was found in the car along with three bags containing 22 kg of Cannabis, which were seized in presence of the witnesses.

Thus, a case was registered against the accused-appellant under Section 20 (b) (ii) (c) of the NDPS Act. The Trial Court vide judgment and order dated July 02, 2022 convicted the accused under the mentioned provision and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-.

The Legal Aid Counsel appearing for the accused-appellant submitted that it was alleged that the contraband items were seized from the conscious possession of the accused-appellant, but the seizure witnesses i.e., PW-1, 3 and 4 did not support the prosecution case. It was argued that the entire seizure is doubtful, as no independent witness was present at the time of seizure of the contraband.

It was further submitted that there was total violation of non-compliance of mandatory provision of Section 42 NDPS Act and it is clear that place of seizure is not a public place and as such Section 43 is also not attracted.

It was submitted that no inventory was prepared and referred to the magistrate for certification. Also, it was argued that the seizure list was prepared in doubtful manner and goods are kept in the Malkhana, which is a serious lapse on the part of the prosecution by violating the provisions of Section 52A of NDPS Act.

On the other hand, the Additional Public Prosecutor submitted that once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he is not in conscious possession.

It was further argued that an accused can be convicted solely on the testimonies of official witnesses and simply because the officer who detected the commission of offence was the one who filed the report or investigated the matter, such investigation cannot be said to be bad in law.

The Court noted that the seizure witnesses, PW-1, PW-3 and PW-4 did not support the prosecution case though they put their signatures in the seizure list. It was further observed by the Court that though PW-5 and 6 categorically stated that 22 Kgs of ganja were recovered from the vehicle which was driven by the accused-appellant.

“But no inventory was prepared by any magistrate as per provision of section 52A of NDPS Act and the seized materials were also not produced before the trial court during trial and marked as material objects. There is no explanation from the side of the prosecution for this failure to produce the same. It is pertinent to say here that the seizure witnesses i.e., PW-1, PW-3 and PW-4 did not support the case of the prosecution that the alleged ganja was seized from the vehicle which was driven by the accused/ appellant at the relevant time,” the Court said.

The Court further remarked that when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking, any inventory, photograph or list of samples would not constitute primary evidence.

It was highlighted by the Court that the seized articles were kept in Malkhana of police station.

“…….The sample was kept in Malkhana till 10/03/2020 and on 10/03/2020, it was sent to FSL through SP. Sample packets were sealed on 10/03/2020 though those were handed over to him on 09/03/2020. As per exhibit, 6 nos. of sample packets were drawn but they forwarded 3 packets of sample to FSL. It was suggested that no contraband was seized and the samples which were sent to FSL were not collected from the accused and the sample packets were tampered at the police station,” the Court noted.

The Court concluded that it is manifest from the record that the seizure witnesses have simply put their signatures at the whims of the investigating agency. It was noted by the Court that all the seizure witnesses i.e., PW-1, 3 and 4, categorically stated that the seized contrabands were not produced before them while taking their signatures on a piece of paper.

“……this court is of the opinion that there is a serious doubt with respect to the seizure. From the evidence of PW-5 and 6, it is crystal clear that the seized contraband were not produced before the trial court during trial and were not exhibited as material exhibits and no inventory was prepared by the magistrate. On a proper analysis, this court has no hesitation in holding that the impugned Judgment is liable to be set aside and the appellant is to be acquitted by rendering the benefit of doubt,” the Court observed.

Thus, the Court set aside the impugned judgment and sentence order passed by the Trial Court.

Citation: 2024 LiveLaw (Gau) 79

Case Title: Kendarnath Chetry @ Khem v. The State of Assam

Case No.: CRL.A (J)/90/2022

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