NDPS Act | Separate Contraband Recoveries Can't Be Treated As Commercial Quantity Absent Proof Of Joint Possession: Gauhati High Court

The Gauhati High Court has held that separate recoveries of contraband cannot be treated as a single commercial quantity, in the absence of evidence showing that the accused were acting together or were in joint possession of the contraband. [2026 LiveLaw (Gau) 82]On that basis, the Court modified the conviction of three appellants under the NDPS Act and reduced their sentence from 15 years' rigorous imprisonment to three and a half years.A Division Bench of Justice Michael Zothankhuma and Justice Kaushik Goswami observed, “Keeping the above in view, it cannot be said with certainty that the three appellants were jointly transporting the two seizures of Ganja made vide two seizure lists, only on the basis of the evidence of PW-4.”The Court further said, “However, the Prosecution has been able to prove that the appellant Suraj Kumar Roy had in his conscious possession transported 10.21 kgs of Ganja, while the other two appellants have in their conscious possession transported 10.8 kgs of Ganja. … If the seized articles are to be considered separately as per the two seizure lists, the seized articles cannot be said to be of commercial quantity.”The observations were made in two Criminal Appeals arising out of a judgment of the Special Judge, convicting the appellants under Section 20(b)(ii)(C) of the NDPS Act.According to the prosecution, 21.1 kilograms of ganja was recovered in February, 2022 from the appellants.Before the High Court, the appellants argued that there was no material to show that all three were acting together. While rejecting the challenge to conscious possession, the Court held, “When there is evidence to the effect that appellant Suraj Kumar Roy had been holding the blue coloured trolley bag and the other two appellants were holding the purple coloured plastic sack, from where Ganja had been recovered, it is proved that the appellants were in conscious possession of the drugs which had been seized from their respective trolley bag/sack.”However, the Court found that the prosecution had failed to prove joint possession of the total seized quantity. In view of these circumstances, the Court concluded, “As such, we are of the view that the evidence of PW-4 does not prove the guilt of the appellants beyond all reasonable doubt that they had jointly possessed or transported the seized 21.1 kgs of Ganja.”“However, the Prosecution has been able to prove that the appellant Suraj Kumar Roy had in his conscious possession transported 10.21 kgs of Ganja, while the other two appellants have in their conscious possession transported 10.8 kgs of Ganja. … If the seized articles are to be considered,” the Court added.Thus, the Court accordingly convicted the appellants only under Section 20(b)(ii)(B) of the NDPS Act, 1985, and sentenced them to undergo rigorous imprisonment for 3½ years each and to pay fine of Rs.1 lakh each, in default of payment of fine, to undergo simple imprisonment for 6 months. And the charge framed under Section 20(b)(ii)(C) of the NDPS Act, 1985 was hereby altered to Section 20(b)(ii)(B) of the NDPS Act, 1985.Case Name: Bipin Kumar & Anr. v. State of Assam connected with Suraj Kumar Roy v. State of Assam & Anr.LL Citation: 2026 LiveLaw (Gau) 82Case Numbers: Criminal Appeal No. 171/2023 Connected with Criminal Appeal No. 219/2023 Click here to read the judgment

NDPS Act | Separate Contraband Recoveries Can't Be Treated As Commercial Quantity Absent Proof Of Joint Possession: Gauhati High Court

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NDPS Act | Separate Contraband Recoveries Can't Be Treated As Commercial Quantity Absent Proof Of Joint Possession: Gauhati High Court

Bhavya Singh

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Bhavya Singh

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