IN THE COURT OF THE SPECIAL JUDGE:: DIBRUGARH

Present: Ms. Aparna Ajitsaria, AJS

Sessions Judge,
Dibrugarh

Date of judgment: 21-03-2022.

NDPS Case No. 05 of 2016

[FIR No. 343/2016 dtd. 05-05-2016.
Dibrugarh P.S. Case No. 343/2016 under Section 27(a) of NDPS Act]
G.R. Case No. 1153/2016

Complainant SI Pranjal Pratim Saikia.

Represented by Smt. Runumi Devi,
Public Prosecutor.
Accused 1. Sri Pranjal Thoumung,
S/o- Sri Noren Thamoung,
R/o- Namsai, Joypur Road,
PS & District- Namsai,
Arunachal Pradesh.

2. Md. Illahi Seikh,

S/o- Late Phalu Seikh,
R/o- Kalibari, PS & District-
Dibrugarh, Assam.
Represented by Sri Sabir Ahmed
Sri GSM Sultan, Advocate for
accused Pranjal Thouming.

Smt. Anju S. Gogoi

Smt. B.D Gogoi, Advocate for
accused Illahi Seikh.

Date of offence 05-05-2016.

Date of FIR 05-05-2016.
Date of Charge sheet 31-12-2016.
Date of Framing of Charges 14-11-2018.
Date of commencement of evidence 16-05-2019.
Date on which judgment is reserved 21-03-2022.
Date of Judgment 21-03-2022.
Date of Sentence Order, if any Nil.

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Rank of Name of Date of Date Offences Whether Sentenced Period of
the accused arrest Release on charged acquitted or imposed Detention
accused bail with convicted Undergone
during trial
for purpose
of Sec. 428
Cr.P.C.
Accused Sri Pranjal 06-05-2016 12-07-2016 27(a) of Acquitted Nil. --
No. 1 Thoumung NDPS Act
Accused Illahi Shown 11-12-2017 27(A) of Acquitted Nil. --
No. 2 Seikh arrest wef NDPS Act
09.07.2016

JUDGMENT

1. The prosecution case, in a nutshell, is that SI Pranjal Pratim

Saikia lodged an FIR on 05-05-2016 wherein it was stated that on
5-5-2016, he received an information from one Md. Akbar of Panchali that
Pranjal Thoumung was apprehended by them at Pujaghat, Marwari Patty
and 7 gram of suspected brown sugar which had been kept concealed
inside the pocket of his trouser, was recovered by them. It was further
stated that the said 7 gms suspected brown sugar was seized in the
presence and witnesses and that Pranjal Thoumung confessed that he had
kept the drugs for his own consumption. On the basis of said FIR,
Dibrugarh PS case No. 343/16 was registered.

2. On completion of investigation, charge sheet was submitted under

Section 27(a) of NDPS Act against the accused Sri Pranjal Thoumung and
under Section 27(A) of NDPS Act against accused Md. Illahi Seikh, under
Section 20(B) of NDPS Act.

3. After hearing both sides and on perusal of the police report

furnished under Section 173 CrPC, formal charge under Section 27(a) of
NDPS Act against accused Sri Pranjal Thoumung and charge under Section
27(A) of NDPS Act against accused Md Illahi Seikh was framed, read over
and explained to the accused persons respectively to which they pleaded
not guilty and claimed to be tried. Hence, this trial.

4. In support of the case, the prosecution examined nine witnesses.

After closure of the prosecution evidence, the accused persons were

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examined under Section 313 of the CrPC. Defence did not examine any
witness. The plea of defence is of total denial.

POINTS FOR DETERMINATION

(i) Whether the accused Sri Pranjal Thoumung on 05-05-2016,
at about 10:20 at Puja Ghat, Marwaripatty under Dibrugarh Police
Station, was found in possession of 7 grams of herion, kept in his
trouser for his consumption?
(ii) Whether the accused Md. Illahi Seikh on or before
05-05-2016 at Dibrugarh indulged in financing, abetting or
harbouring persons in connection with that which has been made
an offence under the NDPS Act, 1985 and specifically provided for
in sub-section (i), (v) and (viii-a) of Section 2 of NDPS Act,1985?

5. I have carefully examined the evidence on record and heard

arguments of both sides.

DECISION AND REASONS THEREOF

6. PW-1 (Munna Khan) deposed that about 2-3 years ago (deposition
recorded in the year 2019), he had seen Ilahi Sheikh in the news on TV
and that he did not know either of the accused persons. About 2 to 2 ½
years back, police had called him to Dibrugarh Police Station and had taken
his signature on blank paper. PW-1 exhibited the seizure list being Ext 1, 2
and 3 wherein he identified his signatures as Ext 1(1), Ext. 2(1) and Ext.
3(1).

7. In cross-examination, PW-1 stated that he did not know why he

had given his signature on Ext. 1, 2 and 3 and that Akbar too had gone to
the police station.

8. PW 2, Akbar Hussain also stated that he had seen accused Ilahi

Sheikh in a news on TV. Police had apprehended one boy and on being
called by the police, he/PW 2 had gone there and affixed his signatures

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[Ext 1(2) and 2(2)] on Ext 1 and 2 seizure lists, as police had found some
articles.

9. In cross-examination by defence, PW-2 stated that he did not

know why he had given his signature on Ext. 1, 2 and 3 and that he had
gone to the police station along with Munna Khan.

10. PW-3 Jayanta Sarkar deposed that about 3 years ago (evidence
recorded on 24-06-2019), police had called him to Marwaripatty, Puja Ghat
with his weighing machine. He had gone there; police weighted some
powdery substance and prepared samples and it was taken to the police
station. PW 3 stated that his weighing machine was seized vide Ext. 3 and
subsequently he was given the zimma of his machine.

11. In cross-examination, PW-3 stated that he did not know from

whom the powdery like substance was seized. PW-3 stated that the articles
were already kept ready for weighment; that he had not given any
authenticity certificate regarding the digital weighing machine; that the
articles were separated and weighed in the police station; that Ext. 3(4)
was taken in the police station and that as he was busy with the work, he
had not noticed any accused person in the police station.

12. PW-4 Sri Lalu Sah stated that he did not know the accused
persons; that he was illiterate and he had not given his signature on any
Seizure List in connection with this case. Defence declined to cross-
examine this witness.

13. PW-5 Firoj Khan stated that he did not know the accused persons;
that he had not given his signature on any Seizure List in any case.
Defence declined to cross-examine this witness.

14. PW-6 Rahima Khatoon stated that she did not know the accused
Pranjal Thoumung, but knew accused Md. Illahi Seikh and that she did not
know anything about the occurrence. Defence declined to cross-examine
this witness.

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15. PW-7 Dr. Dhrubajyoti Hazarika deposed that on 09-05-2016, while
he was working as Deputy Director in Drugs and Narcotic Division, DFS,
Assam, Sri GN Deka, Joint Director had received a sealed parcel in
connection with this case, for examination. The parcel contained one
sealed envelop containing 5 gm dirty white colour powder substance, which
was marked as DN-133/2016. PW -7 stated that on careful examination of
the contents of above parcel, during which he too was present, Sri GN
Deka arrived at the decision that Ext. DN-133/2016 gave positive test for
Heroin and percentage of Heroin was found to be 0.0037. PW 7 exhibited
the FSL report as Ext 4 and identified the signature of the Sri GN Deka and
the then Director K C Sharma [Ext 5 (1)] who forwarded the report by
forwarding letter (Ext 5).

16. In cross-examination, PW-7 stated that from Ext. 4, the case along
with all the materials was received on 09-05-2016 by the Directorate. Sri
GN Deka concluded his examination on 01-11-2016 and same was
forwarded to the sending authority by the Director on 10-11-2016. PW-7
further stated that he did not remember as to why case record was
reported on 01-11-2016 even though it was received on 09-05-2016. PW-7
denied the suggestion that as the apparatus was not functional, so they
somehow managed to submit the report which was not proper. PW-7
stated that the articles were under the joint custody of Director and Sri GN
Deka, joint Director and these articles were kept in safe custody under lock
and key; that they maintain one overall entry register; that it is not possible
to bring the entry register because the other cases has to be entered in the
directorate. PW-7 denied the suggestion that the report was not properly
prepared. PW-7 stated that in his report, Sri GN Deka had not mentioned
the name of the messenger who deposited the sealed envelope along with
relevant papers to the directorate; that he had not seen the remnants of
the sample which Sri GN Deka had tested and forwarded to the sending
authority in the Court on the day of deposition.

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17. PW-8 SI Pranjal Pratim Saikia deposed that on 05-05-2016, OC of
Dibrugarh PS, where he too was posted at the relevant time, received an
information from Md. Akbar of Panchali that they had detained a drug
peddler at Pujaghat, Marwaripatty, Dibrugarh whereafter PW 8 went to the
said spot and found the accused detained. Md Akbar informed PW 8 that
the accused was the drug peddler. Notice to search was issued to the
accused. On body search, PW 8 recovered suspected brown sugar kept
inside one polythene packet from the pocket of the pant which the accused
was wearing. PW 8 stated that Jayanta Sarkar was called to the spot with
his electronic weighing machine and the suspected brown sugar was seized
in presence of witnesses vide seizure list (Ext 1) where he had signed [Ext
1(3)]. PW 8 exhibited the seized samples as Material Ext 1. PW 8 stated
that thereafter, sample was prepared from the suspected brown sugar in
presence of witnesses vide Seizure list (Ext 2) with his signature thereon
being Ext 2(3). PW 8 also deposed that he had prepared the seizure list in
respect of the said weighing machine and one Rs.5 coin (produced by Si
Baikuntha Sonowal) which were seized and given zimma (vide Ext 3 and
Ext 6) and the sketch map (Ext 8), on which he had signed (Ext 3 (5), 6 (1)
and 8 (1)]. Ultimately, he lodged the FIR being Ext 7 where he endorsed
his signature being Ext 7(1).

18. In cross-examination, PW-8 denied the suggestion that the

accused was not given any notice under Section 50 of CrPC. PW-8 stated
that he had not prepared the inventory under the NDPS Act after seizure of
samples and that he recorded the statements of the seizure witnesses.
PW-8 denied the suggestion that he had not seized any contraband from
the accused persons.

19. PW-9 Sri Bhabesh Chandra Sharma who was SI of Police at the
relevant time stated that FIR (Ext 7) was received from PW 8 and
registered as Dibrugarh PS Case No. 343/2016 and he was entrusted with
the investigation. The accused Md Akbar was brought to the police station
by PW 8 along with the seized Brown Sugar on 5.5.2016. During

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interrogation of another accused Smt. Renu Begum who had already been
arrested in connection with Dibrugarh PS Case No. 521/2016, it was known
that Md. Illahi Seikh of Kabibari was also involved in this case. PW 9 further
deposed that on enquiry with Md. Munna Khan of Panchali and Md. Azad of
Loharpatty, too, he learnt that Illahi Seikh is involved in trafficking of
Brown Sugar. The said Illahi Seikh being under arrest in connection with
Dibrugarh PS Case No. 532/2016 u/s 25(1)(a) of Arms Act r/w sec 21(a) of
NDPS Act on 9.7.2016, he took steps to show Illahi Sheikh as “shown
arrest” in this case. PW 9 further stated that the samples drawn by PW 8
were sent for forensic examination and he later collected the FSL Report.
On completion of investigation Charge-Sheet (Ext 9) u/s 27 (a) of NDPS Act
was laid against accused Pranjal Thomoung and u/s 27(A) of NDPS Act
against Illahi Seikh, by endorsing his signature [Ext 9(1)] thereon.

20. In cross-examination for accused Pranjal Thoumung, PW-9 stated

that he had not seized the articles in the instant case and did not know
whether due procedure was followed by the informant or not; that he did
not know whether the informant prepared inventory or not; that the
inventory was also prepared by the informant; that on 27-05-2016, the
informant sent the sample for forensic examination through the forwarding
of Addl. SP (Headquarter); that during the period between the seizure and
sending the sample, the same was under the control of the earlier IO, i.e.,
the informant in the Thana Malkhana. PW-9 denied the suggestion that no
brown Sugar was recovered from the possession of Pranjal Thoumung by
the informant.

21. In cross-examination for accused Illahi Seikh, PW-9 stated that the
accused Pranjal Thoumung had not stated before him that he brought the
Brown Sugar from Illahi Seikh; that he had not visited the place of
occurrence and had not recorded the statement of the witnesses of that
place; that after showing arrest Illahi Seikh, he had recorded the statement
of witness Munna Khan and Md. Azad; that he had enquired the informant
only once on 06-05-2016 during investigation before arrest of Illahi Seikh;

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that he had not enquired the informant as to whether he had served notice
under Section 50 of NDPS Act to the accused Pranjal Thoumung and that
he had not interrogated the accused Illahi Seikh. PW-9 denied the
suggestion that without any link of supply of drugs to Pranjal Thoumung,
he had shown arrest Illahi Seikh in the instant case and submitted Charge
Sheet without any materials against him. PW-9 further stated that he had
not enquired the messenger or recoded his name who carried the sample
to FSL.

22. Learned Counsel for A1 (Pranjal Thumoung) has submitted that

mandatory provisions of law have not been complied with, in as much as,
no notice u/s 50 of the NDPS Act, 1985 be it written or otherwise was
given to A1 before conducting body search. Again, submits learned
counsel, none of the seizure witnesses have supported the case of the
prosecution, rendering the entire case doubtful. Learned Counsel for A2
(Illahi Sheikh), has submitted that prosecution has failed to adduce any
evidence against A2. Learned Counsel submits that PW 1 and PW 2, have
only stated that they had seen A2 on TV and PW 6 stated that she knew
A2; apart from the same there is no evidence to show either that A2 is
involved in the present case or that he is in any manner connected with
dealing, financing activities related to contraband.

23. A1 (Pranjal Thumoung) is facing charge for having possessed 7

gms of heroin on 05-05-2016. Investigation commenced with receipt of
information from PW 2/Md Akbar @Akbar Hussain at Dibrugarh PS that A1
has been apprehended with drugs in the Pujaghat, Marwari Patty area of
Dibrugarh. On receipt of which, the OC, Dibrugarh PS directed PW 8/ SI
Pranjal Pratim Saikia to visit the spot and PW 8 went to the area. PW 8
has categorically deposed that notice for search was issued to A1. There is
nothing to doubt the veracity of this statement of PW 8. In so far as written
notice is concerned, Hon’ble Supreme Court in State of Punjab vs.
Baldev Singh reported in (1999) 6 SCC 172 has upheld oral
communication, in this regard to be valid. Hence, it is held that the

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mandatory requirement of informing the accused about his right of being
taken to the nearest gazetted officer or the nearest magistrate for making
the search, as provided under Section 50(1) of the Act has not been
violated in the instant case.

24. Coming to the recovery and seizure of 7 grams of heroin from A1.
No doubt prosecution through PW 7 (Dr. Dhrubajyoti Hazarika) has been
able to prove that the samples which were sent for examination at FSL,
Kamrup were found to be heroin, but it is to be seen whether the said
samples were drawn as per procedure established by law and again
whether the said samples were part of what was said to have been seized
from A1 and more importantly whether the seizure was in accordance with
law, that is, in presence of independent witnesses. In this regard, it is seen
that PW 1 (Munna Khan), PW (2) Akbar Hussain, have been portrayed as
seizure witnesses to the contraband (vide Ext 1) by the prosecution.
Whereas PW 1 stated that his signature was taken on a blank paper in the
police station, PW 2 has stated that on being called, they had gone to the
police station and on being asked, they signed the seizure lists being Ext 1,
2 and 3. Prosecution has not even been able to keep intact PW 2 (Md
Akbar), on whose instance, the entire investigation is shown to have
begun. With regard to importance of independent seizure witnesses, the
Hon’ble Supreme Court in a catena of judgments including Mousam
Singha Roy and Others Vs State of West Bengal reported in 2013
(12) SCC 377 held that:

“The very purpose of requiring a panch to witness the recovery is to see that independent
witnesses vouchsafe for the fact that a particular thing was recovered from a place where
the prosecution alleges it was found. It is absolutely necessary for these panch witnesses to
see and observe from where exactly these articles were recovered. It is not sufficient if the
IO produced certain articles and informed the panch witnesses that he has recovered them
from a particular place, unless the actual place of recovery from where the article was
recovered is seen by the panch witnesses. In the absence of the same, their signatures on the
recovery panchnama become useless in proving the recoveries. In the instant case, we have
noticed that the panch witnesses who signed the panchnama for the recovery of the letter
and the exercise book, have specifically in their evidence under oath, stated that the IO went
inside the respective rooms/houses and came out with the articles and told the panch
witnesses that he had recovered them. None of the panch witnesses had seen the actual
recoveries therefore, as contended by the defence, the prosecution has failed to establish the
recoveries as required in law.”

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25. In the case at hand, none of the seizure witnesses have supported
the prosecution story and stated that they had seen the police conduct
body search of the accused A1, recover and seize, the suspected
contraband from the pocket of the trouser of accused A1, on 5.5.2016 at
Dibrugarh. Necessary out fall of the same being that the prosecution case
fails on the point of not being able to establish that A1 was in possession of
7 gm of contraband and that the same was seized from him.

26. Again, though inconsequential, nonetheless, in so far as sampling

of the contraband is concerned, it is seen that dictate of the Hon’ble
Supreme Court in Union of India vs. Mohanlal and Another reported in
(2016) 3 SCC 379 has been violated, in as much as, in the said judgment it
has held that:

“Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may
be allow the application. This implies that no sooner the seizure is effected and the
contraband forwarded to the officer-in-charge of the police station or the officer
empowered, the officer concerned is in law duty-bound to approach the Magistrate
for the purposes mentioned above including grant of permission to draw
representative samples in his presence, which samples will then be enlisted and
the correctness of the list of samples so drawn certified by the Magistrate. In other
words, the process of drawing of samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise has to be certified by him to
be correct.”

27. In the instant case, from the evidence of PW 3 and PW 8 it is seen

that admittedly, samples were drawn at the police station, thereby violating
the mandatory procedural requirement of law. No inventory too, as
required under Section 52-A (2) of the NDPS Act, 1985 was prepared or
placed before the Magistrate.

28. Now, in so far as A2 (accused Illahi Sheikh) is concerned, the said

A2 is facing charge u/s 27A of the NDPS Act, 1985. Section 27 A runs thus:
“Whoever indulges in financing, directly or indirectly, any of the activities
specified in sub-clause (i) or (v) or clause (viii-a) of Section 2 or harbours
any person engaged in any of the aforementioned activities, shall be
punishable….”

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29. Section 2(i) of the Act defines addict, Section 2(v) deals with coca
derivatives and Section 2(viii-a) lays down what “illegal trafficking” is, in
the context of the Act. The latter includes financing, abetting or harbouring
persons in connection with that which has been made an offence under the
NDPS Act, 1985 and specifically provided for in sub-section (viii-a) of
Section 2.

30. As submitted by the learned Counsel for A2, there is nothing on

record to show that A2 was in any manner related to the alleged
possession of contraband by A1 (which has already been held to not having
been proved). There is not even a whisper in the evidence of the
prosecution witnesses, not even official witnesses PW 8 and PW 9 that A2
either possessed or indulged in dealing in contraband to attract the
provisions of u/s 27 A of the NDPS Act, 1985.

31. It is the burden of the prosecution to prove that A2 with

knowledge that a substance was a narcotic drug, possessed or exercised
control over it, with intent to sell or distribute or traffick the same.

32. In the case at hand, the prosecution except having

named A2 as an accused in the instant case, is seen to have
done nothing else. No evidence has been led to show that A2 was
either in possession for sale or exercised control over others who
dealt in contraband or that he financed, abetted or harboured
persons dealing in drugs. These elements involving the accused
A2, are conspicuously missing in the prosecution evidence, not to
speak of evidence with regard to any “indicia of sale” which act s
as catalyst to bring home such a charge. Hence, the prosecution
case against A2, too fails miserably .

33. From the discussion aforesaid, it is seen that in respect of A1

(Pranjal Thomoung), the prosecution case fails for having failed to prove
“seizure” from A1 and for non-compliance of the mandatory provisions of
the NDPS Act, 1985, which are nothing but safeguards to ensure that no

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prejudice is caused to the person accused and benefit of which necessarily
has to go to the accused. In respect of A2 (Illahi Sheikh), the prosecution
case fails being a case of no evidence at all.

34. In view of the above, the accused person, A1 (Pranjal Thomoung)

is therefore acquitted of the charge u/s 27(a) of the NDPS Act, 1985 and
accused A2 (Illahi Sheikh) is acquitted of the charge u/s 27-A of the NDPS
Act, 1985 and both are set at liberty.

35. Considering the facts of the instant case, this matter is not
referred to District Legal Services Authority for granting compensation u/s
357A Cr.P.C.

36. Seized contraband be destroyed in accordance with law, if not

already destroyed.

37. Bail bond of both Pranjal Thomoung and Illahi Sheikh, shall remain
in force for a period six months in terms of section 437 A CrPC.

38. Send a copy of the order to Learned District Magistrate, Dibrugarh

u/s 365 Cr.P.C.

The judgment is signed, sealed and pronounced in open Court, in

the presence of both sides, on this the 21st day of March, 2022.

Special Judge,
Dibrugarh

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 APPENDIX

LIST OF PROSECUTION/DEFENCE/COURT WITNESSES

A. Prosecution:
Rank Name Nature of evidence

(eye witness, police witness, expert

witness, medical witness, panch
witness, other witnesses)

PW1 Munna Khan Seizure witness.

PW2 Akbar Hussain Seizure witness.
PW3 Jayanta Sarkar Seizure Witness
PW4 Lalu Sah Seizure Witness
PW5 Firoj Khan Seizure Witness
PW6 Rahima Khatoon Other witness
PW7 Dr. Dhrubajyoti Hazarika Expert witness
PW8 SI Pranjal Pratim Saikia Informant.
PW9 Bhabesh Chandra Investigating Officer.
Sharma

B. Defence Witnesses, if any: Nil.

C. Court Witnesses, if any: Nil.

LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS

A. Prosecution:

Sr. No. Exhibit Number Description

Ext. 1/PW-1 Seizure List
Ext. 1(1)/PW-1, Signature of Munna Khan
Ext. 1(2)/PW-2 Signature of Akbar Hussain
Ext. 1(3)/PW-8 Signature of SI Pranjal Pratim Saikia.
Ext. 2/ PW-1 Seizure List
Ext. 2(1)/PW-1 Signature of Munna Khan
Ext. 2(2)/PW-2 Signature of Akbar Hussain.
Ext. 2(3)/PW-8 Signature of SI Pranjal Pratim Saikia.
Ext. 3/PW-1 Seizure List

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 Ext. 3(1)/PW-1 Signature of Munna Khan
Ext. 3(2)/PW-2 Signature of Akbar Hussain.
Ext. 3(4)/PW-3 Signature of Jayanta Sarkar.
Ext. 3(5)/PW-8 Signature of SI Pranjal Pratim Saikia.
Ext. 4/PW-7 FSL Report.
Ext. 4(1)/PW-7 Signature of Sri GN Deka.
Ext. 5/PW-7 Forwarding of FSL.
Ext. 5(1)/PW-7 Signature of Sri KC Sharma.
Ext. 6/PW-8 Seizure List
Ext. 6(1)/PW-8 Signature of SI Pranjal Pratim Saikia.
Ext. 7/PW-8 FIR.
Ext. 7(1)/PW-8 Signature of SI Pranjal Pratim Saikia.
Ext. 7(2)/PW-9 Signature of Chandra Kanto Boro.
Ext. 8/PW-8 Sketch Map
Ext. 8(1)/PW-8 Signature of SI Pranjal Pratim Saikia.
Ext. 9/PW-9 Charge Sheet.
Ext. 9(1)/PW-9 Signature of Bhabesh Chandra
Sharma.

B. Defence: Nil.

C. Court Exhibits: Nil.

D. Material Objects:
1. M. Ext. 1 is the seized powdery substance.

Special Judge,
Dibrugarh

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