Page No.# 1/11 GAHC010131332013 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./350/2013 MD. ATAUR RAHMAN and ANR. S/O LT. KUTUB ALI R/O VILL- LATHIMARA P.O. KATIGORAH DIST. CACHAR, ASSAM. 2: MD NAZRUL ISLAM S/OMD SUKKUR ALI R/O VILL- JAGODISHPUR PART- V P.O. KATIGORAH DIST. CACHAR ASSAM VERSUS THE STATE OF ASSAM Advocate for the Petitioner : MR.S C BISWAS, MS.A DEY,MR.R ROY,MR.R D PURAKAISTHA,MRS.S D CHOUDHURY,MR.B CHOUDHURY Advocate for the Respondent : , ,,PP, ASSAM,, BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR JUDGMENT Date : 18-09-2025 Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Additional Public Prosecutor appearing for the State respondent. Page No.# 2/11 2. The petitioner by way of instituting the present revision petition has presented a challenge to the judgment and order dated 29.06.2013 passed by the learned Sessions Judge, Karimganj in Special (NDPS) Case No.04/2009, convicting the petitioners, herein, under Section 21(a) of the NDPS Act and sentencing them to suffer RI for a period of 6 (six) months along with a fine of Rs.5,000/- (Rupees five thousand) each, in default, to under RI for further period of 1 ½ months (One year and half month). 3. The prosecution case, in brief, is that on 06.05.2009, at around 9.40 p.m., the complainant Harendra Ch. Das, S/I of Police Badarpur PS, had received a telephonic information from one Nazrul Islam VDP-Secretary of Village Borthal that two persons were apprehended by the local people with some powder like substance, suspected to be Narcotic Drugs were found in their possession. The police visited the place of occurrence and seized the said powder like substance, weighing approximately 25 gms, from the possession of the petitioners, herein, in presence of the Additional Superintendent of Police (Headquarter), Karimganj and other witnesses. The petitioners, herein, were arrested under Section 42 of the NDPS Act with a view to proceed against them under Section 21/22 of the Act. A G.D. Entry was also made in the matter and thereafter, the sample extracted was sent for FSL examination. The Forensic report received, gave positive test for heroin with its percentage at 0.30. Accordingly, on 27.06.2009, an FIR was lodged with the Badarpur Police registered as Badarpur PS Case No.72/09 under Section 21/22 of the NDPS Act. On completion of investigation, the police laid a charge-sheet against the petitioners, herein, under Section 21/22 of Page No.# 3/11 NDPS Act. The petitioners, were, thereafter enlarged on bail. The learned Trial Court, on perusal of the materials coming on record, proceeded to frame a charge against the petitioners, herein, under Section 21(a) of the NDPS Act. The Charge being read over and explained to the petitioners, herein, they pleaded not guilty and claimed to be tried, accordingly, a trial ensued. During the trial, the prosecution examined 6 (six) witnesses and thereafter, the petitioners, herein, were examined under Section 313 Cr.P.C. The learned Trial Court, upon completion of the trial, appreciating the evidences coming on record, was pleased vide judgment dated 29.06.2013, to convict the petitioners, herein, under Section 21(a) of the NDPS Act. On such conviction, the learned Trial Court was pleased to sentence the petitioners, herein, to suffer RI for a period of 6 (six) months along with a fine of Rs.5,000/- (Rupees five thousand) and in default, to undergo R.I. for a further period of 1 ½ months (One year and half months). 4. Being aggrieved, the petitioners have instituted the present proceeding. 5. Mr. S.C. Biswas, learned counsel for the petitioners at the outset submits that the factum of recovery of the powder like substance suspected to be contraband substance, from the petitioners is doubtful. In this connection, he refers to the deposition of the prosecution witnesses and submits that PW-2, during his deposition had deposed that the villagers on having caught the petitioners, herein, a packet containing “yellowish” colour powder like substance was found in their possession. He submits that the Investigating Officer while purportedly seizing the powder like substance from the petitioners, herein, had recorded the colour of the Page No.# 4/11 seized material to be ‘gray’ colour in the seizure memo. Mr. S.C. Biswas, learned counsel, by referring to the FSL report submits that the sample that was forwarded to the FSL authorities for analysis, was found to be “brown” in colour. 6. Mr. S.C. Biswas, in the above premises submits that no explanation was adduced by the prosecution with regard to the 3 (three) different colours being denoted for the power like substance purportedly seized from the possession of the petitioners, herein. He submits that the said aspect of the matter although was staring on the face of the evidences adduced by the prosecution witnesses, the Trial Court failed to appreciate the same in its proper perspective and accordingly, he submits that the conviction of the petitioners, herein, by the learned Trial Court in view of the said infirmity existing in the matter, has been rendered unstable and would require an interference from this Court. 7. Mr. S.C. Biswas, has further submitted that the evidences of the seizure witnesses would go to reveal that after the petitioners, herein, were detained on 06.05.2009, and the powder like substance recovered from them, the police had again on the following day, along with the petitioners, herein, come to the place from where they were so apprehended the preceding day and had again made a formal seizure of the powder like substance recovered from the petitioners, herein. Mr. Biswas submits that the second seizure made by the police in the matter is not borne out of the records. However, the same is borne out from the evidence adduced by the prosecution witnesses. Accordingly, he submits that the powder like substance that was seen by the witness in the possession of the petitioners, was kept with the police and there is no explanation as to the manner, in which, the recovered powder like Page No.# 5/11 substance was so kept by the police during the night of 06.05.2009. 8. Mr. S.C. Biswas submits that the seizure memo although shown to have been so prepared on 06.05.2009, the evidence of the prosecution witnesses would go to reveal that the same was prepared on 07.05.2009 and therein the colour of the powder was shown as “grey”. Accordingly, he submits that a doubt having arisen with regard to the manner, in which the powder like substance, suspected to be narcotic substance was seized from the possession of the petitioners, herein, the benefit thereof must necessarily be granted to the petitioners, herein. 9. Accordingly, he submits that in the above premises, the impugned judgment convicting the petitioners, herein, by the learned Trial Court, would call for an interference from this Court. 10. Mr. M.P. Goswami, learned Additional Public Prosecutor submits that the minor discrepancy occasioning in the description of the colour of the powder like substance recovered from the petitioners, herein and the manner in which, it was recovered from the possession of the petitioners, herein, would not be fatal for the case of the prosecution, inasmuch as, the fact that the powder like substance, was recovered from the possession of the petitioners, herein, is evident. He further submits that the colour of the powder like substance, recovered from the possession of the petitioners, herein, being referred to as “yellowish” by PW-2, “grey” by the Investigating Officer in the seizure memo and as “brown” by the FSL expert, would be of no consequence, inasmuch as, the powder like substance was admittedly seized and sealed in presence of the independent witnesses and also in presence of the Additional Superintendent of Police, Page No.# 6/11 who was a gazetted officer. He submits that the said discrepancy in describing the colour of the seized powder like substance, would not be fatal to the case of the prosecution. 11. Mr. M.P. Goswami, learned Additional Public Prosecutor, Assam submits that the said aspect of the matter was duly considered by the learned Trial Court and thereafter, on a proper and due appreciation of the evidences coming on record had proceeded to convict the petitioners, herein. He accordingly, submits that the impugned judgment passed by the learned Trial Court would not mandate any interference from this Court. 12. I have heard the learned counsels appearing for parties and also perused the materials available on record. 13. The Trial Court upon appreciating the evidences coming on record had drawn the following conclusions:- “12.During the argument Ld. P.P. submitted that there is no dispute about the apprehension of accused persons at the material time by the villagers in the Bortal bazar and visiting of the police there just after the apprehension. It is further contended that reason of the visit to the PO by the accused persons being outsiders could not be reasonably answered by them. On the contrary material witnesses deposed about creating of disturbance by the accused persons in the bazar and their improper behaviour in the bazar is not at all challenged in the cross examination of the PW 1 & 2. Similarly, evidence that, the accused were under the influence of drugs is also not denied by the defence side in the cross examination. Thus according to Id. PP all the above are the established fact. It is seen that the defence side merely cross examined the material witnesses namely PW 1, 2, 3 mainly with regard to the seizure of alleged contraband powder. All the three witnesses are the seizure witnesses. They in their cross examination also confirmed the seizure by the police. It is evident that contraband articles were recovered by the villagers from the possession of the accused persons but there is no clear evidence actually from whose possession the same was recovered. On this point Id. defence counsel strongly contended that there is likelihood of false implication any one of the accused, in as much as any one of them might not have physically possessed the same. On this point Id. P.P. has submitted that, under the facts and Page No.# 7/11 circumstances of this case, possession of the contraband can be treated as joint possession as both of them were found under the influence of drugs at the material time of recovery and apprehension, and both of them at least had the knowledge that the contraband was in their control and possession. Therefore, according to the Id. P.P. the actual physical possession under such circumstances is not very significant to affect the merit of the case. I find sufficient force upon the contention. 13. The defence side totally denied the recovery and seizure from the possession of the accused on the ground that evidence disclosed that on the date of the recovery the packet was not seized, in as much as the same is clearly evident in the cross examination of PW 3, who stated that on the first day packet as taken by police and on the following day same packet was brought by police. As the evidence could not be shaken out on the point of identification of the covered packet and as the same was not actually recovered by the police but by the public and there is no evidence that the accused persons might have been falsely implicated by the villagers, the seizure by the police on the following day of the recovery in presence of the witnesses under the facts and circumstances of the case does not give rise to any doubt about the seizure and its content. The evidence is clear, cogent and corroborative with regard to seizure, weighing and preparation of sample in presence witnesses. No reason could be brought in the evidence of 3 materials witnesses to suggest anything to impeach their evidence and credibility. Therefore mere denial of recovery and seizure is not considered as a strong defence. 14. Ld. Defence counsel raised point of dissimilarity of colour of the seized suspected contraband powder and the examined powder by the FSL expert, in as much as the evidence of material witnesses it is mentioned as yellowish colour and in the seizure list it is mentioned as grey colour, whereas FSL expert as PW 4 described the same as brown colour. Since the evidence clearly disclose that samples were procured weight and sealed in presence of independent witnesses and it is evident that all the required steps were taken by Addl. SP being a gazetted officer, the plea of colour under the facts and circumstances of this case is seemed to be a second line of defence taken for the accused and does not materially affect the prosecution case. The evidence of the expert proved that the samples as examined were heroin. Therefore the possession of the same in contravention of the Act is an offence under the Act. The percentage of heroin shows that the seized contraband was small quantity within the meaning of section 21(a) of the Act.” 14. On perusal of the conclusions drawn by the learned Trial Court, it is found that with regard to the possession of contraband substance, the learned Trial Court found force with contention raised by the prosecution that the possession must be held to be joint one, inasmuch as both the Page No.# 8/11 petitioners were under the influence of drugs. Having drawn the said conclusion, the learned Trial Court proceeded to consider the stand of the petitioners, herein, that no recovery and seizure was made from their possession, inasmuch as, on the date of recovery, the packets were not seized. The learned Trial Court upon appreciating the evidence of PW-3, who had deposed that on the first day, packet was taken by police and on the following day same packet along with the accused persons were brought by police, held that the evidence of PW 3 could not be shaken on the point of identification of the recovered packet, as the same was not actually recovered by the police but was so recovered by the public. The learned Trial Court further held that the seizure by the police on the following day of the recovery being made in presence of witnesses, under the facts and circumstances of the case, does not give rise to any doubt about the seizure and its content. 15. The learned Trial Court, while drawing the above conclusions, clearly failed in properly appreciating the evidences coming on record, inasmuch as, as it is the case of the prosecution that the seizure was made of the recovered packet on 06.05.2009 at 9.45 pm, which is evident from the seizure memo, as prepared and exhibited. However, the evidence adduced by the prosecution indicated such seizure to have been made on 07.05.2009. The learned Trial Court while drawing its conclusion of the case, had not reconciled the said discrepancy. Accordingly, an error has crept into the conclusions drawn in the matter by the learned Trial Court, with regard to the aspect of recovery of the packet from the possession of the petitioners, herein, and its actual seizure. The said error raises a doubt Page No.# 9/11 with regard to the actual seizure of the packet from the petitioners, herein. No explanation was adduced by the prosecution, with regard to the manner, in which the packet was kept during the night of 06.05.2009. 16. The said contradiction with regard to the recovery and seizure of the packet by the police, when further examined in the light of the contradictory evidence coming on record with regard to the actual colour of the powder like substance recovered from the petitioner, herein, by the public, the colour of the powder like substance seized by the police and the colour of the sample, thereof, analysed by the Forensic expert, raises further doubt as to whether it was actually the powder like substance that was recovered from the petitioners by the public, then shown to be seized by the police, in the manner, noticed hereinabove, was the one from which sample was extracted and finally analyzed by the Forensic expert. 17. The learned Trial Court noticed the discrepancy with regard to the colour of the powder like substance recovered from the petitioners, herein, by the public, the colour of the same as described in the seizure memo and its colour while being analysed by the Forensic expert. On noticing the said issue, the learned Trial Court held that the sample having been procured, weighed and sealed in presence of witnesses proceeded to ignore the discrepancy existing with regard to the colour of the powder like substance. 18. This Court is of the considered view that in absence of a plausible explanation from the prosecution with regard to the discrepancy existing in the colour of the powder like substance during its recovery, seizure and then during the analysis by the Forensic expert, it was not permissible for Page No.# 10/11 the learned Tribunal to hold that the same is not fatal to the case of the prosecution, by projecting that the same was seized and sample extracted therefrom in presence of witnesses, inasmuch as, the discrepancies noticed had the effect of rendering the very recovery and seizure made in the matter, doubtful. 19. This Court notices that PW 2 in his deposition had deposed that ”yellowish” powder like substance was found in the possession of the petitioners. The seizure memo prepared by the Investigating Officer on 06.05.2009 reveals the colour of the powder like substance seized to be “gray” in colour. Further the report of the Forensic expert reveals that the sample as forwarded for analysis was “brown” in colour. The said discrepancy with regard to the colour of the powder like substance purportedly recovered from the possession of the petitioners, herein at the time of its recovery, during seizure and finally during its analysis by the Forensic expert, when appreciated with the contradiction found to exist with regard to the manner of recovery and seizure of the same, a doubt arises in the manner as to whether it was the same material that was recovered from the petitioners by the public, was the one that was actually seized by the police and further it was the same material sent for analysis to the Forensic Science Laboratory. Accordingly, the said doubt having arrived and the manner of seizure of the recovered material by police being questionable, in absence of a plausible explanation being adduced by the prosecution in this connection, the said doubt has to be held in favour of the petitioners, herein. 20. In view of the contradiction noticed hereinabove, this Court is of the Page No.# 11/11 considered view that the prosecution has failed to prove the charge under Section 21(a) of the NDPS Act, against the petitioners, herein, beyond reasonable doubt. Accordingly, the impugned judgment and order dated 29.06.2013 passed by the learned Special Judge, Karimganj in Special (NDPS) Case No.04/2009 stand set aside. The petitioners, herein, are acquitted and set at liberty from the charge under Section 21(a) NDPS Act. Their bail bond stand discharged. 21. In view of the above, the present petition stands allowed. 22. Registry to send down the case records to the learned Trial Court, forthwith. JUDGE Comparing Assistant