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CAUSE TITLE

NDPS Case No. 3/12

Informant: SI Ranjan Doley, In-charge, Borbari Police Outpost, PS- Dibrugarh. District- Dibrugarh.

Accused: Md. Elahi Seikh, S/o- Late Kalu Seikh, R/o- Chandmarighat, PS- Dibrugarh. District- Dibrugarh.

ADVOCATES:-For the prosecution : Mr. S. Bhuyan, Public Prosecutor.

For the Defence : Sri R. Borthakur, Advocate; and Smti. Anju S. Gogoi, Advocate.

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IN THE COURT OF THE SPECIAL JUDGE AT DIBRUGARH

Present: Smti. R.K. Phukan, AJS, Special Judge, Dibrugarh.

NDPS Case No. 3/12G.R. Case No. 581/12

Mr. Elahi Seikh

-Vs-

State of Assam

Charge u/S 21(C) NDPS Act.

Date of evidence on : 03-09-12, 03-10-12, 22-11-12, 19-12-12, 24-01-13, 20-02-13, 02-05-13, 29-05-13

& 13-11-13.Date of argument : 28-01-14 & 12-02-14.Date of Judgment : 26-02-14.

JUDGMENT

(1) Prosecution case, in brief, is that on 16-03-12, SI Ranjan Doley

lodged an ejahar before the Officer-in-charge, Dibrugarh Police

Station to the effect that on that day, at 5:00 am, on the basis of secret

information received from a reliable source that few Drugs Smugglers

have reached at Chandmarighat with a large quantity of Brown Sugar

and on receipt of the said information, a plan was made by him under

the supervision of Addl. SP (HQ) Pranjit Bora, Officer-in-charge,

Dibrugarh Police Station and Inspector Hiranya Kumar Bora to catch

them. On that day, around 1:30 pm, a search and raid operation was

made along with Addl. SP (HQ), Dibrugarh, Dy. SP(P) Ponjit

Duwarah, Officer-in-charge, Dibrugarh, Inspector Hiranya Bora and

other staff in the house of one Md. Elahi Seikh of Chandmarighat

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under Dibrugarh Police Station. During the search, three persons,

namely, Md. Elahi Seikh, Md. Najir Ali and Md. Karim Ali @ Butu

of Chandmarighat have been apprehended and also seized 1 kg and

150 gms of Brown Sugar containing in 6 (six) poly packets, an

amount of Rs. 60,000/- (sixty thousand) was also seized from their

possession. The seizure was made as per provision of law and in

presence of witnesses. On receipt of the said ejahar, the

Officer-in-charge, Dibrugarh Police Station registered a case being

Dibrugarh PS Case No. 215/12 under Section 21(C) NDPS Act and

entrusted SI Bhuban Gohain to investigate the case. After completion

of the investigation, he submitted the Charge-Sheet against the

accused persons under Section 21(C) NDPS Act.

(2) The accused person was produced before this Court being the

offence triable exclusively by the Court of Special Judge.

(3) On production of the accused person before this Court and after

hearing the learned counsel for both the sides on the point of charge

and considering the record, the statement of the witnesses and the

documents referred u/S 173 Cr.PC, there being ground for

presumption that the accused has committed the offence, formal

charge u/S 21 (C) of the NDPS Act was framed and explained to the

accused Elahi Seikh to which he pleaded not guilty and claimed to be

tried. There being no materials for proceeding against other two

accused, namely, Nazir Ali and Karim Ali, they were discharged by

my predecessor, after hearing both sides.

(4) In order to bring home the charge against the accused person,

prosecution examined as many as fifteen witnesses. Defence side

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examined none. The plea of the defence is of total denial. The

accused person his statement recorded u/S 313 CrPC, denied the

allegations made against him and pleaded that he is not involved.

(5) I have heard learned counsel for both sides and gone through

the record.

POINT FOR DETERMINATION

(6) (i) Whether the accused person in contravention of the

provisions of NDPS Act and Rules made thereunder,

found in possession of 1 kg and 150 gms of brown sugar

(heroin)?

DECISION AND REASONS THEREOF

(7) PW-1/Md. Mehmud Ali has stated that about 5/6 months ago,

Ahdul Sajid informed him over phone that something had happened

at Chandmari Ghat and he went there and saw the accused sitting

there along with Addl. SP and other police personnels. He heard that

heroin had been recovered. He stated that after searching the house

of the accused, police recovered Rs. 60,000/- and seized the same in

front of him. Ext. 1 is the Seizure List wherein Ext. 1(1) is his

signature. He left the place after the seizure.

In cross-examination, he stated that he had seen the money on

the table and do not know wherefrom the money was brought out.

Police told him that the money was recovered from the accused. He

also stated that the accused and some other persons were in the room

where the table was kept.

(8) PW-2/Md. Hussain Nawaz has stated that about 6/7 months

ago, while he was coming out from his house, one police officer took

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him to a house situated at Chandmari Ghat and there was huge

gathering, but he do not know about the owner of that house. Police

took him into the house and took his signature on some papers.

Police told him that they have recovered drugs and his signature was

taken in the Seizure Lists. Ext. vide Ext. 2 & 3. He stated that he do

not know wherefrom the seized article was found and also do not

know whether the accused person was at that place or not as there

was a large gathering.

He stated that he had left the place after putting his signature on

the said papers.

(9) PW-3/Sri Binod Raut has stated that about 8/9 month ago, from

the date of recording his evidence, at about 2:00 pm, while he was

going to bring the key of shop at Chandmarighat, he saw large

gathering there and he entered into the house. Police was sitting in the

house and he saw some brown colour powder on the table. He stated

that he did not notice whether the accused was at that place or not.

Police took his signature on a paper and he do not know wherefrom

police found the said powder and police did not tell him about the

matter.

(10) PW-4/ Sri Sudama Pandey has stated that about 7/8 months

ago, , at about 1 ½ /2 pm (from the date of recording his evidence)

while he was going to his rented house situated at Chandmari Ghat,

police was in the house of the accused and there was a large

gathering. He went there to see as to what happened and saw the

accused sitting there along with police. He saw soil like material on

paper and police took his signature on a paper. Police weighed the

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material and seized the weighing apparatus. He cannot remember

about the weight of that material. He stated that police found

Rs. 60,000/- and seized the same.

In cross-examination, he has stated that the material was soil

like substance which was on an open paper. There was a large

gathering and he do not know about the owner of that house. He only

came to know from the gathering people that the house was belonged

to the accused and he never saw the accused earlier.

(11) PW-5/Sri Suraj Dutta has stated that on 16-03-12, while he was

working as a Reporter in the news channel in the name and style

“News Live”. Police informed him that they found drugs from the

house of the accused and called him to take the video footage of the

seizure. He went to Chandmari Ghat and saw some packets of drugs

there which was being packed by police and he recorded the visual of

seizure. Police seized the CD of visual from him. He stated that he

reached at the place after the seizure made by police.

In cross-examination, he stated that they went to the place of

occurrence only to collect news as per information given by police.

He stated that accused was sitting in a room along with police

officials.

(12) PW-6/Sri Atma Yadav has stated that while he was in his

house, he heard that drugs had been recovered from the accused and

he went to seen as to what had happened, but police did not allow him

to go there. He stated that he do not have any personal knowledge

about the occurrence.

Defence declined to cross-examine this witness.

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(13) PW-7/Sri Abhisek Verma, a goldsmith has stated that about

4/5 months ago, while he was in his shop, police called him to the

police station along with his weighing apparatus and he weighed

some soil like materials which was in plastic packets. He stated that

police took his signature and address on blank paper.

In cross-examination, he stated that the weighed article which

was found to be 20/30 gms and he do not know what was in the

packet.

(14) PW-8/Sri Ratul Kalita has stated that on 16-03-12 while he was

working at Borbari Outpost, on the basis of secret information, Addl.

SP, HQ, the Officer-in-charge, Dibrugarh Police Station, went to the

house of the accused situated at Chandmarighat and conducted search

and found several packets of suspected brown sugar in an almirah

which was at the drawing room in the house of the accused. Police

seized the drugs which was found to be 1 kg. Ext. 2 is the Seizure

List wherein Ext. 2(1) is his signature. Seized articles were brought to

the police station.

In cross-examination, he stated that he has no personal

knowledge whether the house wherefrom the contraband articles were

seized, belongs to the accused or not. He stated that the accused is a

permanent resident of Kalibari. He denied the suggestion that brown

sugar was not recovered from the almirah of the house of the accused.

(15) PW-9/Smti. Rajuna Begum has stated that while police came

and inquired about the matter, she replied that she did not have any

knowledge about the occurrence.

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Prosecution declared this witness hostile as she resiled from her

earlier statement. Being cross-examined by the prosecution, she

denied the suggestion that her house is adjacent to the house of the

accused and she had given evidence before police and she was

present while police recovered the drugs from the house of the

accused and the accused was doing the drugs business which she

knew and police seized six plastic bags. She denied the suggestion

that she gave false evidence on that day in spite of knowing all the

facts of recovery of drugs from the accused.

In cross-examination by defence side, she stated that she never

saw the accused nor he resides in their locality.

(16) PW-10/Smti. Ayesa Begum has stated that has stated that she

do not know the accused and she does not have any knowledge about

the occurrence.

Prosecution declared this witness hostile as she resiled from her

earlier statement. In cross-examination made by prosecution, she

denied the suggestion that her house is adjacent to the house of the

accused and she had given evidence before police. She was present

while police recovered the drugs from the house of the accused and

the accused was doing the drugs business which she knew and police

seized six plastic bags. She denied the suggestion that she gave false

evidence on that day in spite of knowing all the facts of recovery of

drugs from the accused.

In cross-examination by defence side, she stated that she never

saw the accused nor he resides in their locality.

(17) PW-11/Sri Samsuddin Ali has stated he do not know the

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accused and the occurrence.

Prosecution declared this witness hostile as he resiled from his

earlier statement. In cross-examination made by prosecution, he

denied the suggestion that his house is adjacent to the house of the

accused and he had given evidence before police. He was present

while police recovered the drugs from the house of the accused and

the accused was doing business which he knew and police seized six

plastic bags. The value of that seized drugs was approximately

Rs. 50,00,000/-. Police also seized Rs. 60,000/- from the room

occupied by his wife, Smti. Mehrun Nessa. He also denied the

suggestion that he gave false evidence on that day in spite of knowing

all the facts of recovery of drugs from the accused.

(18) PW-12/Pratap Baruah has stated that on 18-04-12, while he

was working as Nayak in Dibrugarh Police Station, he along with

Bhuban Gohain went to News Live office situated at Khalihamari and

seized one video C/D from its Reporter, namely, Sri Suresh Dutta.

From the Reporter, he came to know that the CD was recorded during

seizure of brown sugar from the accused.

Defence declined to cross-examine this witness.

(19) PW-13/Sri Pranjit Bora has stated that on 16-03-12, while he

was at Dibrugarh as Addl. SP, HQ; the I/C of Borbari Outpost

informed him over phone that a consignment of contraband drugs has

arrived at Dibrugarh for sale to customers and dealers at Dibrugarh.

He along with other staff went to Chandmarighat to conduct raid in

the house of the accused. During their search, they found five sealed

packets, one loose packet containing suspected brown sugar and at

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that time, the accused was sitting alone on a sofa in a room of his

house. They apprehended the accused and seized the article. They

called a goldsmith and weighed the same which was found to be 1 kg

150 gms. Each sealed packets was 200 gms each and one packet

contained 150 gms. Sample was drawn from the seized articles

24 gms each which was sealed in presence of Judicial Magistrate,

1st Class, Dibrugarh. Search was made in another room of

the accused and cash amount of Rs. 60,000/- was found in an almirah

in the house of the accused and they seized the same. He again stated

that at the time of seizure, videography was done and the sample of

seized article was sent to FSL by him for necessary examination.

After examining the same, FSL sent the report to him wherein the

result of examination gave positive test for heroin”. Immediately, he

sent the report to the Officer-in-charge, Dibrugarh Police Station for

necessary action.

In cross-examination, he stated that In-charge of Borbari

identified the house of the accused. He denied the suggestion that the

house of the accused is not at Chandmari. He stated that he cannot

remember if the sample was prepared by mixing all the seized packets

or individually from the each packets. Ext. A is the Sketch Map of

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place of occurrence prepared by SI B. Gohain where the place of

occurrence had been shown as Ashiya's room. A had been shown as

Mehrun Nisa's room and he do not know who are Ashiya and Mehrun

Nisa. Seizing officer took custody of the seized article at the place of

occurrence and he cannot say how the seized article was handled by

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the IO after seizing the article.

(20) PW-14/SI Ranjan Doley has stated that on 16-03-12, while he

was IC of Borbari Outpost under Dibrugarh Police Station, at about

5:00 am, he got a secret information that some drugs dealer gathered

in the Chandmarighat along with some suspected drugs and

immediately, he contacted the Addl. SP, HQ, Officer-in-charge,

Dibrugarh Police Station and rushed to the spot along with his staff

in civil uniform to Chandmari. On their way, they kept watch on the

house of the accused and apprehended one Karim Ali, who was going

out from the house of the accused, who is the cousin of the accused.

They took him to Borbari Outpost and interrogated him and came to

know that the accused was in that house and some drug dealer would

come for the purpose. They again went back to Chandmarighat and at

that time, Addl. SP, HQ/PW-3, DSP (P) and Officer-in-charge,

Dibrugarh Police Station arrived on the spot. They all entered into the

house of the accused and as per instruction of Addl. SP, HQ, they

searched the house and found the accused making some small

packets of suspected brown sugar in the house of Mofijul Hussain

(a neighbour). He has stated that all six suspected drugs were on the

table in front of the accused. As per instruction of Addl. SP (HQ), he

called a goldsmith and weighed the drugs which was found to be

200 gms each and one packet of 180 gms. All the drugs were in

polythene packets and he seized the same vide Ext. 2 wherein

Ext. 2(6) is his signature. He also seized the weighing scale which

was used for weighing the drugs vide Ext. 3 wherein Ext. 3(4) is his

signature. When they interrogated the accused, he confessed his guilt

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and told that value of 3 (three) packets of drug is Rs. 50, 00,000/-.

Thereafter, they searched the house of the accused and seized an

amount of Rs. 60,000/- which was kept in an almirah. Ext. 1 is the

Seizure List wherein Ext. 1(3) is his signature. When they questioned

the accused, he stated that the house belonged to his first wife and

son, who resides there. He stated that videograph was made at the

time of seizure by calling News Live officials. In the process, they

apprehended another person, namely, Nazir Ali and took him and the

accused to the police station along with the seized article. Thereafter,

he filed a report before the Officer-in-charge, Dibrugarh Police

Station and he registered a case. Ext. 5 is the ejahar wherein Ext. 5(1)

is his signature. He handed over the accused persons along with the

drugs to the Officer-in-charge, Dibrugarh Police Station. Material

Ext. 1 is the seized notes of Rs. 60,000/-. Material Ext. 2 is the token

sample of suspected brown sugar of 24 gms.

In cross-examination, he stated that he did not submit any

written report in respect of secret information to his immediate

officer. During his search, he found three persons, namely, Illahi

Seikh, Nazir Ali and Karim Ali. He denied the suggestion that he

mentioned in his

ejahar that they kept watch the house of the accused. They

apprehended one Karim Ali, who was going out from the house of the

accused and interrogated him and brought him to the police station.

He stated that he never visited the house of the accused and on the

basis of reliable source, he came to know that the house belongs to

the accused. He made search in two houses and he did not make any

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inventory of the seized article nor produced the same before the

Magistrate. He took samples from different packets separately. He

denied the suggestion that at the place of occurrence, there is no

house belonging to the accused person. He stated that he seized the

contraband article from the house of Mofijul Hussain. He denied

the suggestion that he never called the goldsmith and weighed the

seized articles. He also denied the suggestion that the accused

admitted his guilt and the value of seized article was Rs. 50, 00,000/-.

He stated that as per his findings, the house from which he seized the

contraband article belongs to the accused, his first wife and his son.

He denied the suggestion that the accused did not disclose before him

that his first wife and son were residing in the said house. He stated

that he neither recorded the statement of the first wife and son of the

accused nor any person nearby the house of the place of occurrence.

He denied the suggestion that he did not find the accused along with

the drugs as stated by him and the house of accused is at Kalibari and

not in Chandmarighat. He also denied the suggestion that at the time

of seizure, only police personnel were present.

(21) PW-15/SI of Police, Bhuban Gohain has stated that on

16-03-12, while he was at Dibrugarh Police Station as ASI of Police,

at about 1:00 pm, the Officer-in-charge called him to Chandmari

Ghat and he rushed to the spot. There, he found Addl. SP, Pranjit

Bora, DSP (Probationer), Ponjit Duorah, IC Borbari, SI Ranjan Doley

and Inspector OC Hiranya Kumar Bora surrounding the house of the

accused. They seized 1.150 kg of brown sugar and cash amount of

Rs. 60,000/- from the accused. He again stated that they made six

packets and drawn six samples from those packets and took the

signatures of the accused and witnesses as per procedure. Thereafter,

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he took the accused along with other accused, namely, Nazir Ali and

Karim Ali. Thereafter, SI Ranjan Doley filed a report before the

Officer-in-charge which was treated as FIR and entrusted him to

investigate the case. Immediately, he rushed to the place of

occurrence and examined the complainant and available witnesses.

He examined the accused persons, arrested them and forwarded them

to custody He seized one video cassette which was recorded at the

time of seizure. Ext. 4 is the Seizure List wherein Ext. 4(3) is his

signature. He took steps to send the seized samples to FSL through

Addl. SP (HQ). Ext. 5, 6, 7 & 8 are relevant documents.

Sample was sent by Special Messenger which was received by FSL

on 19-03-12. Ext. 11 is the receipt of FSL. The FSL Report was

received through Addl. SP, HQ wherein the result of examination

mentioned as Ext. DN-69-2012(a) to DN 69/2012 gave positive test

for heroin and percentage of heroin was found to be 14.13, 15.32,

14.66, 17.19, 18.00, 16.28 respectively. Ext. 9 is the FSL report and

Ext. 10 is the forwarding letter. After going through the report and the

diary, he filed charge sheet against all the accused persons u/S 21(c)

of the NDPS Act. Ext. 12 is the Charge Sheet wherein Ext. 12(1) and

Ext. 12(2) are his signatures. Material Ext. 1 is the seized video disk.

In cross-examination, he stated that he opened the case diary on

16-03-12. The ejahar in this case was received at 04:10 pm and at

5:30 pm, he reached at the place of occurrence. On reaching the place

of occurrence, he found the following persons, namely, Samsuddin

Ali,

Md. Iesa Begum, Sri Atma Yadav and Md. Rasina Begum. He

examined the above named persons as witnesses and make them

charge sheeted witnesses in this case. He did not get the

Officer-in-charge, Dibrugarh Police Station, Addl. SP, Dibrugarh,

In-Charge of Borbari Outpost, Ranjan Doley or any other police

officer. Ranjan Doley accompanied him to the place of the occurrence

after registration of the case. At 4:30 pm, he recorded the statement of

the witnesses, Ranjan Doley, Pranjit Bora, Addl. SP, HQ, Ponjit

Duorah on 16-03-12 in Dibrugarh Police Station within about 10

minutes. He completed the case diary on 16-03-12 itself. He was the

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part and parcel at the police party who conducted the search. As

police officer, he was interested in the case right from the starting of

conducting raid. He do not know if under the provisions of NDPS

Act, no police officer who was a part of the raid, can be appointed as

investigating officer. Though he was present, he do not know the

weight of the seized alleged contraband article.

(22) During the course of investigation, he never seized the alleged

contraband article stated to be recovered from the house of the

accused person. There is nothing in his diary to indicate as to how

and where the alleged contraband article were kept after alleged

seizure. He handed over the alleged seized article to the Addl. SP for

sending the same for FSL examination. There is no bar in sending the

sample to FSL by himself. There is no mention in the diary as to why

the alleged seized article were sent by Addl. SP to the FSL. While

asking him to go to Chandmari Ghat, the OC told him that the

cordoned house belonged to accused Illahi Seikh. He neither know

the holding number of the house nor did he conduct any investigation

regarding the ownership of the house. He did not even go the

Municipal Board to inquire about the ownership and residents of the

house. He did not examine the Ward Commissioner to ascertain the

ownership and residents of the searched house. He did not investigate

whether during the course of search of the house of the accused, any

responsible person of the locality was called by police or not. During

investigation, he did not examine any responsible person of

Chandmari locality as witness in this case. He did not collect any

documentary evidence relating to ownership and residents of the

house searched by police. He cannot say wherefrom the alleged

contraband articles were recovered by police nor he knows

wherefrom Rs. 60,000/- were taken out by police. He had been in

Dibrugarh Police Station for one and half years since before this case.

He knew Illahi Seikh from after joining Dibrugarh Police Station in

2011. He know that accused Illahi Seikh has his residential house in

Kalibari road opposite to fish market, Dibrugarh. Illahi Seikh has

sufficient number of rented quarters as well as shop houses in

Kalibari area. He cannot deny that Illahi Saikh has no house in

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Chandmari Ghat area. He also cannot deny that the rented house did

not belong to Illahi Seikh. He cannot say whether the media reporters

were called before or after the alleged search. He only came to learn

that there was a video cassette, so he seized the same. He denied the

suggestion that he do not have any authority to investigate the case.

He denied the suggestion that the investigation conducted by him is

illegal and the same is not prescribed by law. He did not carry any

packet of alleged brown sugar from the place of occurrence. He did

not ascertain as to in whose presence the alleged contraband article

and the amount of Rs. 60,000/- were seized. He did not see personally

the packaging of alleged brown sugar into six packets. He denied the

suggestion that no contraband article as alleged was seized from the

possession of accused. He denied the suggestion that the police

officers made the conspiracy to implicate the accused in a false case

and accordingly, the case was framed. He denied the suggestion that

the FSL Report is not pertaining to the alleged seized articles.

(23) The brief argument of the learned P. P. Mr. Sanjib Bhuyan is

that there is sufficient corroboration in the evidence given by the

police officers on duty which is supported by independent witnesses

and as such charge can be stated to be proved against the accused

person.

(24) On the other hand the learned defence counsel Mr. Ranjit

Borthakur vehemently argued that the prosecution has not at all been

able to prove the case as has been claimed by the learned P.P. due to

several infirmities which as follows.

(i) It has been assailed that search and seizure has not been

made in conformity of legal provision of NDPS nor as per Sec.

100 CrPC for which the whole case is vitiated. No respectable

person of the locality is examined at the time of search and

seizure though police went to place of occurrence in

pre-planned manner. No any ground is assigned as to why

they avoided to follow the same.

(ii) The prosecution measurably failed to prove ownership of

the house where the search was made. There are discrepancies

of witnesses regarding the ownership of the house of Elahi

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Seikh as to who resided in the said house. The I. O. himself

admitted that nothing was done to confirm that the house

belongs to the accused Elahi Seikh and or was his immediate

possession. It is also admitted that house of accused Elahi is at

Kalibari.

(iii) In the sketch map Ext. ‘A’ no where mentioned that the

house where from article was seized is belongs to accused Elahi

Seikh. The picture shown in the sketch map indicator ‘A’

shows the rooms of one Meherun Nisha where from cash

money was recovered and nearby houses B to F are shown as

house of Karim Ali, Kashem Ali, Shewbadan, Samsuddin,

Teribuddin Ali and the PW-13/Addl. S. P. Mr. Pranjit Bora has

stated he does not know who are those Ayesha and Meherun

Nisha, while admittedly by him the article was recovered in his

presence. Obviously two facts cannot run together regarding

recovery. Two ladies shown in the sketch map is not made

accused.

(iv) The case is bad for violation of Sec. 42(2) NDPS Act. as

the information received by the informant was not reduced to

writing while he has ample time to do so. The information was

received at the early morning and they went for raid in the mid

day. Further the case is bad for non compliance of Sec. 52 (A)

(2) NDPS Act. regarding seizure.

(iv) There is no value of the confessional statement if any made

by the accused before the police/I.O. in view of legal bar as per

Sec. 25 of evidence act.

(v) The case is bad for non examination of chemical examiner

and adverse inference can be drawn for withholding material

witness.

(vi) The prosecution failed to ensure free and fare trial as

regard the fact that where from the seize article was recovered.

The ground of arrest was not communicated to the accused

which is compulsory as per Sec. 5o CrPC.

(vii) The identity of drugs is not made out by the witnesses to

ascertain the correctness of seizure due to serious contradictory

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statement of the police officers as well as the other independent

witnesses.

(viii) The G. D. entry is not proved. To prove the authenticity

of the information except mentioning about the number of the

G. D. entry by the I.O., he did not produced the same.

(ix) The case clouded by the shadow of doubt in view of the

evidence of police officer Mr. Ranjan Doley/informant, who

claimed to have seized the article/drugs from the house of one

Mofizul Hussain, a neighbour. Then how it can be claimed by

the prosecution that the house is owned and possessed by the

accused Elahi Seikh as has been mentioned in the FIR. Thus

the informant himself has contradicted the contention of the

FIR and there is no mention of Karim Ali in course of trial

which is contrary to the FIR.

(x) The prosecution cannot establish the factum or recovery of

Drugs from the conscious possession of the accused person

Elahi Sekh. Because as per FIR drugs was recovered from the

possession of three persons including Elahi Seikh but in the

evidence nothing has been mentioned about the involvement of

the other two persons (of course they were discharged at the

time of charge, finding materials against them). Again the

sketch map so prepared by the I.O. reflects a complete different

picture as regard the ownership of the house as it shows the

place of occurrence is of one Meherun Nisha’s house.

(xi) Non of the seizure witness as well as independent witness

has supported the prosecution case to proved the recovery of

such huge quantity of drugs. So prosecution cannot claim to

succeed to establish the charge beyond all reasonable doubt.

(25) The learned defence counsel in support of his contention,

has relied upon the decision of Hon’ble Supreme Court in Noor

Aga –Vs- State of Punjab and another (2010) 96 AIC 176 SC,

wherein different provision of Section 35, 53-A, 54, 52-A and

other relevant Sections has been dealt with and has categorically

held that the procedure laid down under the Act being stringent

in nature, must be strictly complied with. The Court must

19

always remind itself that it is well settled principle of criminal

jurisprudence that more serious the offence, the stricter the

degree of proof. A higher degree of assurance thus would be

necessary to convict an accused. It is also necessary to bear in

mind that superficially a case may have an ugly look and

thereby prima facie shaking the conscience of any Court, but it

well settled that suspicion however high may be, can under no

circumstances be held to be a substitute for legal evidence.

(26) Similarly, in State of Punjab –Vs- Baldev Singh (1999) 3

SCC 977 and Ritesh Chakrawarty –Vs- State of Madhya

Pradesh (2006) (47) AIC 610, it has been held as below-

“It must be borne in mind that severe the punishment, greater

care has to be taken to see that all the safeguards provided in a

statue are scrupulously followed. Justness and fairness of a trial

is also implicit in article 21 of the Constitution. A fair trial is

again a human

right. The Courts in order to do justice between the parties, must

examine the materials brought on record in its case on its own

merit. Marshalling and appreciation of evidence must be done

strictly in accordance with well known legal principles

governing the same wherefor the provisions of the Code of

Criminal Procedure and Evidence Act must be followed.

(27) Another case relied upon by the defence side is

SH.F.VANLALRINGA-Vs- State of Mizoram (2010) (3) GLT

wherein it has been held by the Hon’ble Gauhati High Court

that where the Investigating Officer conducted search and

seizure on the basis of prior information, but same was not

reduced to writing and sent a copy to the Superior Officer and

20

due to the contradiction in the testimonies of witnesses about

identification of seized articles, the prosecution case is itself on

this point alone, cannot be legally sustainable for

non-compliance of mandatory requirement of Section 42(2) of

the Act.

(28) Another case referred by the defence side is SH Chanam

Ranjit Meitei –Vs- Union of India (2010) (3) GLT 361 wherein

it has been held that it is mandatory to follow the provision of

Section 52-A(2) NDPS Act after seizure of narcotic drugs of

psychotropic substance as has been mentioned therein and

seized articles should be kept in the custody of police

officer-in-charge and non-compliance of the same would render

the seizure doubtful. It is further discussed in the said case that-

“The manner in which the seized ganja was kept and handled

by the IO/Inspector is not free from possibility of manipulating,

even replacement while they were under his custody. Similarly,

it was the bounden duty of the prosecution to examine the

Chemical Examiner as a material witness, withholding of such

witness, caste a serious reflection and provide a chance to draw

an adverse inference against the prosecution.”

(29) As the defence has challenged the possession of the

house alleged to be occupied by Elahi Seikh and has denied that

nothing was recovered from his conscious possession and on the

point, the learned defence counsel has relied upon an

observation of Hon’ble Gauhati High Court in

ONYX.MAIPHOK & others –Vs- State of Assam & another 2010

21

(4) GLT 565 wherein it has been held that mere presence of a

person at the place of recovery is not sine qua non of his

involvement in the offence. It is also the settled law that

suspicion, however grave, cannot take place of proof. Even if

the movement of appellant at the place of recovery in suspicious

manner considered to be an adverse circumstances that it is not

enough to affirm their conviction in absence of corroborative

additional incriminating circumstances.

(30) Having regard to the rival contention of both sides, let us

analyse the case in hand in proper perspective of law and facts.

In the instant case, we have three sets of evidences which

comprises as below-

(i) PW-1 to PW-6 are seizure witnesses;

(ii) PW-7 & PW-10 to PW-12 are independent witnesses;

and

(iii) PW-8 & PW-13 to PW-15 are the official witnesses.

(31) CONTENT OF FIR AND EVIDENCE LED:

As per FIR filed by PW-12/Ranjan Doley, he along with other

witnesses, i.e., PW-13 to PW-15 and PW-8 entered into the

house of the accused and found accused Elahi and two other

persons, namely, Nazir Ali and Karim Ali and recovered 1 kg

and 150 gms brown sugar and Rs. 60,000/- from their

possession and it was seized in presence of witnesses.

(32) GLARING DISCREPANCIES IN THE EVIDENCE

OF THESE POLICE OFFICERS INCLUDING THE

INFORMANT.

22

In his evidence, the informant has stated that he found

the accused Elahi while preparing puria/small packets in the

house of Mofijul Hussain, a neighbour, which is in sharp

contrast to the FIR and his evidence lost credibility on this

score alone.

Without describing about involvement of other two

accused named in the FIR, the informant has stated that they

apprehend other two persons, namely, Nazir Ali and Karim Ali,

which is a weak piece of evidence.

(33) Contradicting the evidence of the informant, other police

officials, who were also present with the informant, the PW-13

has stated about presence of accused Elahi Seikh alone, but has

not mentioned about other two persons named in the FIR. The

evidence of PW-8/ASI of Police who happens to accompany

the informant and others, is destructive of the prosecution case

while he stated that Nazir Ali and Karim Ali were not found in

the house at the time of raid. He also stated that accused Elahi

is permanent resident of Kalibari and he do not know whether

the house where the article were seized, belongs to accused or

not.

(34) The informant himself fails to assert that the house

searched was belongs to accused Elahi Seikh. Moreover, in

view of his clear cut evidence that he seized the articles from

the house of Moffijul Hussain, the authenticity of the Seizure

List vide Ext. 1 and Ext. 2, wherein it is shown that Rs.

60,000/- and 1 kg .150 gms brown sugar was recovered from

23

the possession of accused Elahi Seikh, is totally at stake and

can be discarded having no credibility.

(35) The evidence of other witnesses, PW-13 & PW-15 that

they recovered the drugs from the house of accused Elahi

Seikh, lacks authenticity being not consistent with the evidence

of the informant. They have not uttered the name of Mofijul

Hussain at all.

(36) The evidence of these police officers that they called

PW-7 to weigh the seized contraband drugs to the place of

occurrence and on being weighed by him, it was found to be 1

kg and 150 gms. But denying the same, the said PW-7 has stated

that he was called to police station one day to weigh some

article which he does not know and it was found to be 20/30

gms and police took his signature on blank paper, which again

nullify the prosecution case.

(37) VALUE OF SEIZURE WITNESSES:

All the PW-1 to PW-4 have no doubt sign the Seizure Lists

vide Ext. 1, 2 & 3. But they have specifically stated that they do

not know wherefrom the seized articles were recovered.

(38) Further, PW-2 has stated that he did not see the accused

at the time of giving signature in the Seizure List. PW-3 is

totally silent about recovery of money of Rs. 60,000/-.

(39) PW-4 is not an eye-witness to the search and seizure and

his evidence is of no consequence. Equally PW-6 heard about

the recovery of drugs and nothing more.

(40) The set of seizure witnesses implicitly proved that they

24

were not present at the time of search and seizure and police

show them some drugs and money and they simply sign the

Seizure List as directed by the police officers. Situated thus, it

can be held that the Seizure List is not proved by prosecution.

(41) EVIDENCE OF INDEPENDENT WITNESSES:

The PW-10 to PW-12 are the resident of the locality,

Chandmarighat where the articles were seized from the alleged

house of accused Elahi Seikh, has clearly stated that accused

Elahi is not a resident of their locality and they never saw him

in the area, nor they have any knowledge about the occurrence.

Though they were declared hostile by prosecution, but they

denied to have given any evidence before police about the

recovery of drugs from the house of accused.

(42) Thus, the independent witnesses have not totally

supported the prosecution case and the claim of the informant

that search and seizure was made in presence of those

witnesses, is totally uncorroborated as found above.

(43) NON-COMPLIANCE OF LEGAL PROVISIONS

UNDER THE ACT:

The case initiated on the basis of earlier information, but

admittedly the informant did not reduce the information to

writing as per mandate of Section 42(2) NDPS Act nor he

submitted any written report to his superior authority. As has

been observed in the case law cited above, the case is not

sustainable for flouting the provisions of the Act.

(44) Evidence of the seizing officer reveals that he did not

25

produce the inventory of the drugs containing details, etc.,

identifying the article and nor produced the same before the

Magistrate for certifying the correctness of inventory as has

been mentioned in the provision of the Act and thus did not

follow the provision of Section 52-A(2) NDPS Act. In view of

the violation of provision, the seizure itself lacks legal sanctity

as has been held in the above mentioned case by the Hon’ble

High Court.

(45) CONCLUSION:

There are large numbers of discrepancies in the evidence

on record, particularly, contradictions in the statement of

official witnesses. Non-examination of Forensic Expert and

other non-application of legal procedure while at the time of

search and seizure nor as per the NDPS Act or as per the

Criminal Procedure Code, the case of the prosecution cannot be

accepted to arrive a conclusion of guilt of accused.

(46) The Hon'ble Supreme Court in State of Punjab -Vs-

Baldev Singh in Manu-SC 0981/1999, has answered certain

queries that whether the mandatory provision of NDPS Act is

required to be followed. It has been held as below-

The investigating agency must follow the procedure as

envisaged by the statute scrupulously and failure to do so, must

be viewed by the higher authorities seriously inviting action

against the concerned officials so that the laxity on the part of

the investigation, authority is curbed. In every case, the end

result is important, but the means to achieve, it must remain

above board. The remedy cannot be worse then the disease

itself. The legitimacy of judicial process may come under

cloud if the Court is seen to condone acts of lawlessness

conducted by the investigating agency during search operations

and may also undermine the respect for law and may have the

effect of unconscionably compromising the administration of

26

justice that cannot be permitted. An accused is entitled to a fair

trial. A conviction resulting from an unfair trial is contrary to

our concept of justice. The use of evidence collected in breach

of safeguards provided under the Act, would render the trial

unfair.

(47) In view of the discussions and findings above, I am

constrained to hold that prosecution has failed to proved the

charge under Section 21(C) NDPS Act beyond all reasonable

doubt and I acquit the accused person on the benefit of doubt.

Seized article be destroyed in due course of law and the seized

money of Rs. 60,000/- is confiscated to the State.

(48) Now in the case in hand, the Court is aware that present

accused person is prime accused in so many cases with the

allegation of handling of drugs which may have serious impact

in the society. But the Court itself cannot shoulder the liability

to grab such menace in the society unless the proper material

with legal evidence is placed by the investigating agency. The

offence under the NDPS Act being serious in nature, it is the

mandate of law to follow the various procedure embodied in

the Act itself. But it is a measury to note that most of the

serious cases fails for want of proper investigation. I do hereby

draw the attention of the Superintendent of Police, Dibrugarh

to look into the matter with serious concern.

(49) Send a copy of this Judgment to the Superintendent of

Police, Dibrugarh for information and necessary action.

Delivered my hand and seal of this Court on this the 26th

day of February, 2014.

Dictated and corrected by me:-

Special Judge, Dibrugarh

Special Judge, Dibrugarh

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APPENDIX

List of witnesses:

(1) P.W. 1 Md. Mehmud Ali;

(2) P.W. 2 Md. Hussain Nawaz;

(3) P.W. 3 Sri Binod Raut;

(4) P.W. 4 Sri Sudama Pandey;

(5) P.W. 5 Sri Suraj Dutta;

(6) P.W. 6 Sri Atma Yadav;

(7) P.W. 7 Sri Abhisek Verma;

(8) P.W. 8 Sri Ratul Kalita;

(9) P.W. 9 Sri Pratap Boruah;

(10) P.W. 10 Sri Samsuddin Ali;

(11) P.W. 11 Smti. Ayesa Begum;

(12) P.W. 12 Smti. Rajuna Begum;

(13) P.W. 13 Sri Pranjit Borah;

(14) P.W. 14 SI Ranjit Doley; and

(15) P.W. 15 Sri Bhuban Gohain.

List of Exhibits:

(1) Ext. 1 Seizure List;

(2) Ext. 2 Seizure List;

(3) Ext. 3 Seizure List;

(4) Ext. 4 Seizure List;

(5) Ext. 5 FIR;

(6) Ext. 6 Forwarding Note;

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(7) Ext. 7 Authority Letter;

(8) Ext. 8 Arrest Memo;

(9) Ext. 9 Report of the FSL;

(10) Ext. 10 Forwarding Letter of FSL;

(11) Ext. 11 FSL Receipt; and

(12) Ext. 12 Charge Sheet.

List of witnesses and Exhibits for defence- None

Special Judge,Dibrugarh

Typed by:-Bhaskar Jyoti Bora, Steno.