Page No.# 1/10 GAHC010009482013 2025:GAU-AS:12661 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./221/2013 BIREN BORAH S/O SRI DALESWAR BORAH, R/O NO. 2 HOLONG GAON, P.S.PENGRE, DIST. TINSUKIA, ASSAM. VERSUS THE STATE OF ASSAM, Advocate for the Petitioner : MR.P J SAIKIA, MR.R S MISHRA,MS.M KECHII Advocate for the Respondent : , PP, ASSAM, Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 09.09.2025 Heard Mr. R. S. Mishra, learned counsel for the appellant. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, appearing for the State Respondents. 2. The present appeal has been instituted invoking the provisions of Section 374(2) of the Criminal Procedure Code, 1973, assailing the Judgment And Order dated 06.06.2013, passed by the learned Special Judge, Tinsukia, in NDPS Case No.1(T)/2009, convicting the appellant under Section 18(a) of the Narcotics Drugs and Psychotropic Substances Act, 1985, and sentencing him to undergo Rigorous Imprisonment for 6 months and to pay a fine of Rs.10,000/-(Rupees Ten Thousand), and in default to undergo Rigorous Imprisonment for further 1(one) month. 3. The prosecution brief as unfolded during the Trial is that on 17.02.2009, one Sarat Baruah, Inspector of Excise basing on secret information had gone to the house of the accused/appellant at Holong Gaon, and surrounded it. Upon a search being made, though nothing was found inside the house, but in the compound near a tea bush, about 100 grams of suspected opium was found. Further the same was seized and a sample of 5 grams was taken out and sent to Chemical Examiner (Excise), for examination. The Chemical Examiner on examining the sample had opined that the same had given positive test for opium. Thereafter, offence report was Page No.# 3/10 submitted against the appellant and the charge-sheet being laid, the Trial Court had framed a charge against the appellant, herein, under Section 18(c) of the NDPS Act. The appellant having pleaded not guilty and having claimed to be tried, trial was conducted in the matter. 4. I have heard the learned counsel for the parties and also perused the materials coming on record. 5. During the Trial, the prosecution had examined 4(four) witnesses. For appreciation of the issue arising in the present appeal a discussion of the evidences of prosecution witnesses, being relevant, the same is noticed here under. 6. Sarat Barauh, Inspector of Excise, Digboi Circle, had deposed during the Trial as PW-1. In his deposition he had stated that on 17.02.2009, he along with other Excise personnel of Digboi Circle and Margherita Circle, had gone on checking, on the basis of some secret information, to Holong Gaon. The house of the appellant, herein, was stated to have been surrounded, on the basis of information that opium was kept, therein. It was deposed that the Goan Bura, and two villagers were called as witnesses. The PW-1 deposed that before the search was made their bodies were made to be searched by the appellant, herein. After completing all the formalities of the search, it was deposed that the PW-1 and the other Excise personnel had entered into the house of the appellant, however nothing was found inside the house. PW-1, further deposed that thereafter the compound of the house of the appellant was searched and near one tea bush, about 100 grams of opium wrapped in a plastic was found. Further one weighing scale, weights Page No.# 4/10 of 50 grams, 20 grams, 10 grams and 5 grams were also found wrapped in a cloth along with one hookah. The said items were seized in presence of witnesses. PW-1, also deposed that 2 packets of 5 grams each of the seized material were prepared and sealed in presence of witnesses and the appellants, herein, and signatures of the appellant was also taken, thereon. The seizure list was prepared on the spot and a copy of the same was given to the appellant, herein. The samples collected on the day of the incident were deposed by the PW-1 to have been sent to the Chemical Examiner(Excise), for examination and the Chemical Examiner(Excise), report brought on record that the sample gave positive test for opium. Accordingly, after receipt of the Chemical Examiner(Excise), report, the offence report was filed and it was sent to the Court. The PW-1, exhibited the offence report(Exhibit-2) along with the Chemical Examiner(Excise), report(Exhibit-3), in the matter. During his cross-examination, the PW-1, inter alia, deposed, that out of the seized opium, 5 grams were taken for preparing samples. He further deposed that due to shortage of time and lack of communication with the Department of Weights and Measures, the seized articles could not be weighed. However, he deposed that the sample of the opium obtained from the appellant was sent to Chemical Examiner(Excise), and the same was signed by him, the appellant and the witnesses. The PW-1, had denied the suggestion of not having followed the rules at the time of the search. 7. PW-2, Sri Daulat Chandra Moran, in his deposition, inter alia, stated that in February 2009, Excise personnel and some person Page No.# 5/10 belonging to the Moran Student’s Union had gone to the house of the appellant and he was also called, therein, the house of the appellant was deposed to have been surrounded by police and near a tea bush located around about 24 feet from the house of the appellant, some opium were found hidden in a polythene bag along with one small weighing scale and one hookah. He further deposed that the Excise personnel had made small packets of the opium, so seized. During his cross, PW-2 had stated that the appellant, herein, had a tea garden around his house and on the date of the incident the house of the appellant was surrounded by 20/25 persons. PW2, had further stated that the Excise personnel conducting the search, were body searched by the boys of the Moran Students Union. 8. PW-3, Smti Anuradha Khatowal, in her deposition had stated that she know the appellant, herein, from the day of the incident. On the day of the incident she was at her house and she heard that the Excise personnel had found opium in the house of the appellant, herein, and accordingly, she had also gone to his house, and therein, she saw the Excise personnel doing some writing in the courtyard of the appellant. She also deposed that she saw opium in a polythene bag and also a hookah, however, she had deposed that she did not know from where the opium was recovered. Her signature taken as a witness with regard to the seizure of the opium and she further deposed that a small amount of opium was taken out from the packet, may have been sent for examination. In her cross-examination, she submitted that the body of the persons coming to the house of the appellant were searched, however, she stated that the articles were taken out before her Page No.# 6/10 arrival, as her house is about 1 Km from the house of the appellant. 9. PW-4, Sri Satyanath Dohotia, in his deposition had stated that he knew the accused from the day of the incident. He deposed that on the day of the incident, while he was returning from his relatives house, he saw many people in front of the house of the appellant, including some Excise and Police personnel. He deposed that he had seen one hookah and a packet and the Excise personnel were found writing sitting on a table. His signature was also deposed to have been taken on a paper. The articles found were deposed to have been seized. However, he had deposed that he had not seen from where the articles were seized, however, the seized material were sealed in his presence and that it contained one hetha, one hookah and some other things. During his cross he had stated that he had seen the articles contained in Material Exhibit No.2 before it was sealed and that the Excise and Police personnel had reached the place of occurrence before him. 10. The learned Trial Court, basing on the evidences coming on record, vide Judgment And Order dated 06.06.2013, proceeded to hold that from the evidence adduced by PW1 and PW2, the fact of recovery of opium from the premises of the appellant, herein, can be said to have been proved. 11. The learned Trial Court, further on examination of the evidence of PW3 and PW4, held that they although not being eye witnesses, their testimony can be used for corroboration of the evidence adduced by PW1 and PW2. Having drawn the said conclusion, the learned Trial Court proceeded to hold that although Page No.# 7/10 PW1 in his deposition stated to have recovered 100 grams of opium but in his cross-examination, he having deposed that due to lack of time and lack of communication with the Department of Weights and Measures, the seized articles could not be weighed, the statement of the PW1 of having seized 100 grams of drugs was held to be nothing but a guess work. Thereafter, by proceeding to notice that the small quantity is 25 grams and commercial quantity is 2.5 kg and quantity of the seized drugs not being weighed, benefit of doubt in connection with the quantity of drugs seized was given to the appellant, although the recovery, thereof, was held to have been proved satisfactory. 12. The learned Trial Court in absence of a proof regarding the quantity of the drugs seized proceeded to conclude that the drugs seized only constituted a small quantity. Basing on the said conclusion, as well as the positive report of the Chemical Examiner(Excise), the appellant herein, was convicted under Section 18(a) of the NDPS Act. On a such conviction, the learned Trial Court, sentenced the appellant to undergo Rigorous Imprisonment of 6(six) months and also to pay a fine of Rs.10,000/-(Rupees Ten Thousand), in default to undergo Rigorous Imprisonment of 1(one) further month. 13. A perusal of the evidence brought on record of the prosecution witnesses more particularly that of the PW1, would go to reveal that around 5(five) grams of the seized material were collected separately and thereafter sealed and signed by him and the appellant, for the purpose of forwarding to the Chemical Examiner(Excise), for its examination. The said statement was Page No.# 8/10 reiterated by the PW1 during his cross-examination also. Accordingly, the materials brought on record reveal that around 5(five) grams of the seized materials suspected to be opium were forwarded to the Chemical Examiner(Excise), for his examination. PW1 had during his deposition had exhibited the report of the Chemical Examiner Excise as Exhibit No.3. 14. A perusal of the Exhibit No.3 i.e. the certificate issued by the Chemical Examiner (Excise), would go to reveal that the seized material on being analyzed had returned positive test for opium. However what is noticeable in the said report is that the Chemical Examiner (Excise), had certified that he had on 19.02.2019, received from the PW1 vide communication dated 18.02.2019, a sample of suspected opium which on being weighed/measured 1.5 gram and the sample was properly sealed and fastened and the sealed was found to be intact. 15. The report of the Chemical Examiner (Excise) would go to revealed that only one 1.5 grams of opium was received for analysis from the PW1, whereas, the PW1 in his deposition has stated that 5(five) grams of opium were separately kept out of the recovered quantity, for being forwarded to the Chemical Examiner (Excise) for analysis. There is no explanation brought on record by the prosecution as to why if 5(five) grams of opium were separately kept in a packet and sealed and forwarded to the Chemical Examiner (Excise), how the Chemical Examiner (Excise) had received only 1.5 grams quantity packet. A doubt arises in the matter as to whether the sealed packet of opium kept separately and sealed at the place of occurrence was the same packet Page No.# 9/10 forwarded to the Chemical Examiner (Excise). In absence of an explanation from the prosecution in the matter, a doubt having arisen with regard to the fact as to whether the analysis was of the same materials that was seized from the premises of the appellant on 17.02.2009, the said benefit of doubt must necessarily be given to the appellant, herein. 16. In view of the said discrepancy noticed, with regard to the analysis of the sample of the drug purportedly being opium seized from the premises of the appellant and the quantity of the sample received by the Chemical Examiner (Excise), having been found to be not corresponding to the quantity forwarded for the purpose by the PW1 in terms of his deposition during the Trial, the sample analyzed by the Chemical Examiner, cannot be conclusively held to be the sample of the drug seized from the premises of the appellant, herein. 17. In view of the above conclusion, drawn by this Court, this court is of the view that the conviction and sentencing of the appellant, herein, by the learned Trial Court vide Judgment And Order dated 06.06.2013, cannot be sustained and the same would mandate an interference. 18. In view of the above discussion, this Court, proceeds to set aside the Judgment dated 06.06.2013, passed by the learned Special Judge, Tinsukia, in NDPS Case No.1(T)/2009 and the appellant stands acquitted from the charge so framed against him under Section 18(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985. The appellant having been granted fresh bail by this Court vide order dated 14.08.2013, in Crl.M.C.No.618/2013, Page No.# 10/10 the bail bond stands discharged. 19. With the above observations and directions, the present Appeal stands allowed. JUDGE Comparing Assistant