Seizure Witness Signed Papers At Police Station, Didn't Witness Recovery: Gauhati High Court Acquits Two In NDPS Case
The Gauhati High Court has acquitted two persons convicted under Section 20(b)(ii)(c) of the NDPS Act after finding that the seizure witnesses stated that their signatures were obtained either at the police station or at their residence and that they had not witnessed the recovery.Justice Mridul Kumar Kalita observed, “...none of the seizure witnesses has been able to prove the fact of...
The Gauhati High Court has acquitted two persons convicted under Section 20(b)(ii)(c) of the NDPS Act after finding that the seizure witnesses stated that their signatures were obtained either at the police station or at their residence and that they had not witnessed the recovery.
Justice Mridul Kumar Kalita observed, “...none of the seizure witnesses has been able to prove the fact of recovery and seizure of the seized contraband from the possession of the present appellants.”
The observation came while allowing a Criminal Appeal, arising out of the Sessions Court judgment convicting and sentencing the appellants to rigorous imprisonment for 10 years each along with a fine of Rs.1 lakh each.
The prosecution case was that on receiving information regarding transportation of ganja, police organised naka checking and intercepted a vehicle carrying the appellants. About 30 kg of suspected cannabis was allegedly recovered from the vehicle. Thereafter, on the basis of information given by the appellants, another 75 kg of suspected cannabis was allegedly recovered from a residence. Following investigation, a charge sheet was filed under Section 20(b)(ii)(C) of the NDPS Act.
The appellants contended that the prosecution had failed to prove seizure of the contraband as neither the seized ganja was produced before the trial court nor was any inventory exhibited.
They further argued that there was no material to show that samples were drawn in the presence of a Magistrate, that the seizure witnesses did not support the alleged seizure and that the prosecution had failed to establish proper chain of custody of the samples.
The State, however, submitted that the conviction was based on credible ocular evidence and that the oral testimony of the prosecution witnesses established seizure and conscious possession.
The High Court examined the evidence of the seizure witnesses and found that they had not been able to prove seizure of the contraband, contrary to what had been held by the trial court.
One seizure witness stated that he was unable to say what was written in the papers on which his signatures were obtained.
Another stated that his signatures on the seizure lists were obtained at his residence and that he had not gone to the place from where the ganja was allegedly recovered.
The third seizure witness admitted that his signatures were obtained at the police station and not at the place where the seizure was made, while another witness had also not gone to the place of seizure.
The High Court also found that no inventory of the seized contraband had been prepared in terms of Section 52A of the NDPS Act. It further found that nothing on record indicated that the samples were drawn in the presence of the Magistrate and that the materials on record indicated that the samples were drawn at the police station itself.
The Court observed: “Further, it also appears that neither the inventory has been prepared nor the seized contraband was produced before the court during trial. As to what happened to the seized contraband could not be comprehended on perusal of the records.”
It further said, “It appears that in the instant case, the procedure laid down in Section 52A of the NDPS Act, 1985 has not at all been followed by the Investigating Agency.”
The Court further observed that the NDPS Act prescribes harsh punishment and that the mandatory procedural requirements were required to be strictly adhered to.
It said, “Any lapse on that count would dent the prosecution case and the accused will get an advantage due to such procedural lapses.”
Accordingly, the Court held: “Under such circumstances, the conviction of the appellants and sentence imposed on them by the trial court, in the considered opinion of this court, is not sustainable.”
The High Court consequently held that the trial court had erred in convicting and sentencing the appellants under Section 20(b)(ii)(C) of the NDPS Act. It set aside the impugned judgment, acquitted both appellants and directed their release forthwith, if not wanted in connection with any other case.
Case Nos.: Criminal Appeal No. 144/2026 With Criminal Appeal No. 192/2023
Case Title: Hobiqul Islam v. State of Assam With Nijut Bormoholia v. State of Assam
LL Citation: 2026 LiveLaw (Gau) 143