Page No.# 1/9 GAHC010247922024 2025:GAU-AS:1743 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3597/2024 BIKI DAS S/O LATE LAKHIDHAR DAS, R/O VILLAGE- BAHBARI CENTRE, PS. TEZPUR, DISTRICT SONITPUR, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. N J DUTTA, MR N AHMED Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 19.02.2025 Heard Mr. N J Dutta, learned counsel for the petitioner and Mr. M P Goswami, learned Additional Public Prosecutor, Assam for the State. 2. The petitioner, namely, Biki Das, son of late Lakhidhar Das, resident of village-Bahbari Centre, P.S.-Tezpur, District-Sonitpur has filed this application under Section 483 BNSS, 2023, praying for his bail in Special (NDPS) Case No. 76/2024 arising out of Dhekiajuli Police Station Case No. 84/2024 corresponding to G.R. No. 868/2024, in which he was arrested on 21.05.2024 and is in custody since then. 3. As per the FIR dated 21.05.2024, the case is that at around 8:30 AM on 21.05.2024 on receipt of source information that large amount of suspected Ganja (Cannabis) being trafficked in a two wheeler vehicle through Mazbat-Dhekiajuli road, the same was accordingly entered as Rakshasmari Outpost G.D. Entry No. 280 dated 21.05.2024. On being duly authorized, the In-charge of Rakshasmari Outpost under the jurisdiction of Dhekiajuli Police Station went to Rakshasmari center and set up a naka checking at the relevant place and started checking vehicles. During naka checking, one two-wheeler, Honda Grazia bearing Registration No. AS-12A-G-4308 did not stop at the naka checking point inspite of being signaled to stop by police and it managed to flee away from the said naka checking point in high speed. The said two-wheeler was chased by police personnel and brought it to stop at Manmohinipur Tea Estate, Pukhuri Line. Two persons including the petitioner were apprehended from the said two-wheeler. In presence of independent witnesses both the apprehended persons including the present petitioner were searched and further, in presence of such independent witnesses, the said two-wheeler of the petitioner was also searched. During such search four Nos. of white polythene filled with suspected Ganja (Cannabis) were found and seized. On being weighed in weighing machine of Rakshasmari Outpost, those four packets were found to be of (i) 5.158 Kgs, (ii) 5.125 Kgs, (iii) 5.165 Kgs and (iv) 5.152 Kgs, in total 20.600 Kgs of suspected Ganja (Cannabis). Both the persons including the Page No.# 3/9 present petitioner were apprehended, the concerned two-wheeler and the recovered NDPS items, i.e., suspected Ganja (Cannabis) were seized. Those packets containing suspected Ganja were sealed and labeled at the spot by following the necessary formalities. 4. The In-charge of Rakshasmari Outpost on 21.05.2024 itself lodged the FIR of the case before the Officer-in-Charge of Dhekiajuli Police Station, which was accordingly registered as Dhekiajuli Police Station Case No. 84/2024 under Sections 20(b)(ii)(C)/29 of the NDPS Act, corresponding to G.R. No. 868/2024 and both the accused persons including the present petitioner were arrested on 21.05.2024 and since then he is in custody. 5. Relying on a decision of a Co-ordinate Bench of this Court in the case of Altaf Hussain -Vs- State of Assam (Bail Application No. 1048 of 2024) reported in 2024 (4) GLT 681 decided on 05.08.2024, Mr. Dutta, learned counsel for the petitioner has submitted that the petitioner is entitled for his bail in said Special (NDPS) Case No. 76/2024 as the Court as well as the investigating authority did not comply with the mandates of Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 while taking the samples for the FSL report. In this regard, Mr. Dutta relied on Paragraphs 22, 23, 24, 25, 28, 29 and 30 of said Altaf Hussain (supra). 6. Mr. Dutta, learned counsel for the petitioner has submitted that the samples were not drawn following the statutory Rules before the learned Magistrate as provided under Section 52(A) of the NDPS Act, 1985. Mr. Dutta, learned counsel also submitted that the provisions of said 2022 Rules are required to be scrupulously followed and there is no discretion on the part of the Investigating Officer/Seizing Officer to deviate from the procedure prescribed by the said Rules. 7. Mr. Dutta, learned counsel for the petitioner has also submitted that as being held by the Court in the case of Altaf Hussain (Supra) that the offence under the NDPS Act, 1985 prescribes very stringent punishment and as such, compliance with statutory prescriptions and procedures shall have to be strictly and scrupulously followed and if there is any kind of doubt regarding compliance of the mandatory provisions of the statute, the benefit shall have to be given to the accused. Mr. Dutta, learned counsel submitted that it is settled that when a statutory provision mandates a particular procedure to be followed, it is the bounden Page No.# 4/9 duty of the Investigating Officer/Seizing Officer to follow the prescribed procedure and not following the mandate would vitiate the sample drawing procedure itself and ultimately, would have its impact on the outcome of test of such samples which in turn would affect the merit of the case. 8. In this regard, Mr. Dutta, learned counsel for the petitioner placed the order of the learned Judicial Magistrate First Class, Tezpur dated 22.05.2023 passed in said Special (NDPS) Case No. 76/2024 that relates to the Inventory Report and the samples drawn by the Investigating Officer/Seizing Officer for forwarding such sample to the FSL for its examination and report. 9. Mr. Dutta, learned counsel for the petitioner by placing the provision of Rule 10 of said 2022 Rules and the order of the learned JMFC, Tezpur dated 22.05.2024, noted above, submitted that the samples drawn by the Investigating Officer/Seizing Officer before the learned Magistrate was not in-conformity with the provisions of Rule 10 of said 2022 Rules. Mr. Dutta also submits that the relevant report does not contain any such colour test by the Drugs Identification Kit with regard to the four Nos. of packets containing the suspected Ganja (Cannabis). 10. Mr. Dutta, learned counsel for the petitioner also relied on the Judgment of the Hon’ble Supreme Court in the case of Bharat Aambale -Vs- State of Chhattisgarh, reported in 2025 SCC OnLine SC 110, more particularly its Paragraph Nos. 40 to 45. 11. Mr. M P Goswami, learned Additional Public Prosecutor, Assam placed reliance on Paragraph No.39 of the decision of the Hon’ble Apex Court in the case of Narcotics Control Bureau -Vs- Kashif decided on 20.12.2024, which reads as under – “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the Page No.# 5/9 accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-Section (2) of Section 52A lays down the procedure as contemplated in Sub- Section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 12. Mr. M P Goswami, learned APP, Assam has also placed that in the said case of Kashif (supra), the Hon’ble Apex Court discussed and referred its earlier decisions in the cases of Hira Sing and Another -Vs- Union of India and Another reported in (2020) 20 SCC 272 (a three Bench Judgment) as well as NCB -Vs- Mohit Aggarwal reported in (2022) 18 SCC 374 (another three Bench Judgment). 13. Mr. M P Goswami, learned APP, Assam relying on the said decision in the case of Kashif (Supra) submitted that any lapse of compliance of the provision of Section 52 (A) of the NDPS Act would not entitle the accused to be released on bail as the Court is required to consider other circumstances and other primary evidences collected during the course of the investigation as well as the statutory presumption permissible under Section 52 (4) of the NDPS Act. Page No.# 6/9 14. Considered the judgments cited by the parties. 15. In the case of Bharat Aambale, the Hon’ble Apex Court at Paragraphs 49 and 50 have laid down that — “49. However, a close reading of the aforesaid decision reveals that this onus on the prosecution will only encumber once such an issue of non-compliance arises for consideration. Although, we are in complete agreement with the aforesaid observations inasmuch as it would be for the prosecution to establish and prove compliance of Section 52A of the NDPS Act, yet at the same time, we are of the considered opinion, that mere assertion by the accused that there has been non-compliance of the said provision may not be sufficient. The initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses. Such burden on the accused to establish contravention of Section 52A of the NDPS Act will only be on the mere preponderance of probabilities, whereas once the foundational facts are established that raises an issue as regards the non-compliance of Section 52A of the NDPS Act, the onus will entirely be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt. 50. We summarize our final conclusion as under: — (I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A subsection (2) of the NDPS Act. (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. Page No.# 7/9 (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. Page No.# 8/9 (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.” 16. In the case in hand, it is seen that the seized NDPS item was recovered from the conscious possession of the petitioner; petitioner evaded from the naka checking at Rakshasmari center and inspite of stopping his two-wheeler, a Honda Grazia, bearing Registration No. AS-12A-G-4308, he fled away with it in a high speed, police had to chase him and brought it to stop at Manmohinipur Tea Estate, Pukhuri Line; the FSL report dated 04.07.2024 pertaining to the seized NDPS item recovered from the possession of the petitioner affirmed that the dry plant materials with fruiting tops confirmed to be Ganja (Cannabis). Further, Charge-sheet in the case was submitted on 31.07.2024, cognizance of offence under Sections 20(b)(ii)(C)/29 of the NDPS Act was taken by learned Special Judge (NDPS) -cum- Sessions Judge, Tezpur, Sonitpur on 14.08.2024, the said Trail Court on 29.11.2024 framed charge under Sections 20(b)(ii)(C)/29 of the NDPS Act against the petitioner and the other accused person of the case and the case is presently pending in the evidence stage before the said Trial Court. 17. Moreover, from the order dated 22.05.2024 of the learned Judicial Magistrate First Class, Tezpur passed in the concerned Dhekiajuli P.S. Case No. 84/2024 it can be seen that at the time of certifying the inventory, the learned Magistrate found that —“As the packages are identical in size and weight and the contents of its package are of similar colour and texture, therefore, a small quantity of suspected ganja is taken out from each of the bags and mix thoroughly to make homogeneous mixture from which 3 representative samples are drawn”. 18. 18. Considering the decisions of the Hon’ble Apex Court in the cases of Kashif (Supra) and Bharat Aambale (Supra), the order dated 22.05.2024 of the learned JMFC, Tezpur at the time of certifying the inventory of the seized NDPS item, the FSL report dated 04.07.2024 and the reasons stated above, this Court is of the opinion that detention of the petitioner in custody since 21.05.2024 cannot be considered for his bail in Special (NDPS) Case No. 76/2024 Page No.# 9/9 arising out of Dhekiajuli Police Station Case No. 84/2024. 19. Accordingly, this bail application of the petitioner, Biki Das, son of late Lakhidhar Das in said Special (NDPS) Case No. 76/2024 arising out of Dhekiajuli Police Station Case No. 84/2024 pending before the Court of learned Special Judge (NDPS) -cum- Sessions Judge, Tezpur, Sonitpur stands rejected. JUDGE Comparing Assistant