Gauhati HC quashes NDPS Conviction

The Gauhati High Court recently set aside the conviction and sentence passed by the Magistrates’ Court under Section 20 (b) (ii) (c) of the NDPS Act on the grounds that the seized contraband was not produced before the Magistrates’ Court and no inventory was available. It is prepared by the judge.

single judge bench Justice Malasri Nandi observed:

“In the case at hand, it is undeniable that neither the prosecution made such an application for the destruction of the large amount of material allegedly seized, nor that such an order was issued by the magistrate. It is worth noting here that the trial court hastily believed the prosecution story and decided to convict the appellant without warranting the production of large quantities of contraband.”

The prosecution’s case was that an FIR was lodged on 09 March 2020, alleging that specific information was received regarding the transportation of narcotic drugs towards Orang, a naka from Mazbat, in a white color Maruti car on 08 March 2020. Inspections were carried out in the Mazbat new market area. Accordingly, during the naka check, a white Maruti car was checked thoroughly and during the search, the accused appellant was found in the car along with three bags containing 22 kg of Marijuana which were seized in the presence of witnesses.

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

Legal Aid Advocate appearing for the appellant stated that it was alleged that the contraband items were seized from the conscious possession of the accused-appellant but the seizure witnesses, namely PW-1, 3 and 4, did not support the prosecution case. . It was alleged that the entire seizure was suspicious as there was no independent witness at the time the contraband was seized.

It is also clear that the mandatory provision of Section 42 of the NDPS Act has been completely violated and the place of seizure is not a public place and therefore Section 43 is also of no relevance.

It was stated that no inventory was prepared and it was sent to the magistrate for approval. It was also alleged that the seizure list was prepared in a suspicious manner and the goods were kept in Malkhana, which was a serious negligence on the part of the prosecution in violation of the provisions of Section 52A of the NDPS Act.

On the other hand, the Additional Public Prosecutor argued that after it was determined that the contraband was in the defendant’s possession, the burden of proof that he was not consciously in his possession belonged to the defendant.

It was further argued that an accused can be convicted solely on the basis of the statements of official witnesses and since the officer who detects the crime is the one who prepared 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 despite signing the seizure list. The court also observed that although PWs-5 and 6 had categorically stated that 22 Kg of ganja was seized from the vehicle driven by the accused-appellant.

“But no inventory was prepared by any judge under Section 52A of the NDPS Act and the seized materials were also not presented to the trial court during the hearing and were marked as material objects. No explanation was given by the prosecution for producing this same failure. It is pertinent to mention here that the seizure witnesses, namely PW-1, PW-3 and PW-4, do not support the claim that marijuana was allegedly seized from the vehicle driven by the accused/appellant. relevant time” The court said.

The court further stated that in case of non-compliance with Section 52A of the NDPS Act, i.e. in the absence of a certificate of a magistrate, any inventory, photograph or sample list will not constitute primary evidence.

The court emphasized that the seized items were kept at Malkhana police station.

“…….The sample was kept at Malkhana till 10/03/2020 and sent to FSL via SP on 10/03/2020. The sample packages were sealed on 10/03/2020, but they were delivered to him on 09/03/2020. 6 pieces according to the exhibition. 500 sample packs were withdrawn, but they forwarded 3 packs of samples to FSL. “It was claimed that the contraband goods were not seized, the samples sent to FSL were not collected from the defendants, and the sample packages were falsified at the police station.” The court noted.

The court concluded that it was clearly understood from the records that the seizing witnesses signed at the discretion of the investigation agency. The court noted that all the seizure witnesses, namely PW-1, 3 and 4, while taking their signatures on a piece of paper, had categorically stated that the seized contraband goods were not brought before them.

“……the court is of the opinion that there is serious doubt about the seizure. From the evidence of PW-5 and 6, it is clear that the seized contraband goods were not brought before the trial court during the hearing, they were not exhibited as material exhibits and no inventory was prepared by the magistrate. “On proper analysis, this court has no hesitation in holding that the impugned decision should be set aside and the appellant acquitted with the benefit of doubt.” The court observed.

Therefore, the Court annulled the disputed decision and penalty decision given by the Supreme Court of Appeals.

Quote: 2024 LiveLaw (Gau) 79

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

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

Click Here to Read/Download the Order