DISTRICT : KAMRUP (M), GUWAHATI IN THE COURT OF ...kamrupjudiciary.gov.in/apr 19/dj apr...

NDPS Case No. 26 of 2016

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DISTRICT : KAMRUP (M), GUWAHATI

IN THE COURT OF THE SPECIAL JUDGE, KAMRUP (M) GUWAHATI

PRESENT: - Shri A. Chakravarty, M.A., LL.M., AJS


U/S 21 (b) and 29 of the NDPS Act, 1985

Corresponding to G.R.P.S. Case No. 23/2016

State of Assam .....Complainant

Versus

1. Md. Ansar Ali and

2. Md. Rahman Husain … Accused

Charge framed on : 01-04-2017

Evidence recorded on : 19-08-2017, 08-02-2017, 10-04-018 and 13-06-

2018

Statements recorded on : 14-12-2018

Arguments heard on : 20-02-2019 and 04-04-2019

Judgment delivered on : 20-04-2019

Advocates who appeared in this case are:

Shri Girin Das, Addl. P.P. for the Prosecution

Smt. Seema Kaur, Advocate for the accused


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J U D G M E N T

1. In this case, the accused Ansar Ali and Rahman Hussain have been

tried for commission of offences punishable under Sections 21 (b) and 29 of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS

Act”).

2. The case of the prosecution, as stated in the First Information Report

(in short “the FIR”) in brief is that on 17-02-2016, at around 01:30 p.m.,

during routine checking at the Guwahati Railway Station, the Government

Railway Police Station, Guwahati (in short “the GRPS”) personnel, including the

informant, found that the accused Ansar Ali, who was travelling in the Berth

No. 11, Coach No. A-1of the Down Brahmaputra Mail train was illegally

possessing 200 grams of suspected Morphine, 150 grams in one packet and 50

grams in another packet, in contravention of the provisions of the NDPS Act.

The GRPS personnel seized the suspected Morphine and an AADHAAR Card

from the possession of the accused Ansar Ali. The GRPS personnel also seized

one Railway ticket in the name of the accused Ansar Ali and Rahman Hussain

and another AADHAAR Card from the possession of the accused Rahman

Hussain, who was travelling with the accused Ansar Ali in the Berth No. 12,

Coach No. A1 of the said train. The informant collected two samples of the

suspected Morphine in presence of the witnesses for sending to the Forensic

Science Laboratory (in short “the FSL”) for examination. Thereafter, the

informant lodged an FIR of the incident with the GRPS.

3. Based on the FIR, the Officer-In-charge of the GRPS registered the case

No.23 of 2016, for commission of offences punishable under Sections 21 (b)

and 29 of the NDPS Act against the accused Ansar Ali and Rahman Hussain

and investigated the case.

4. During the course of investigation, the investigating officer recorded

statements of several witnesses and sent the samples of the suspected

Morphine to the FSL, Guwahati for examination. After examining the samples,

Shri G. N. Deka, Joint Director, Directorate of Forensic Sciences, Assam gave

his report stating that the samples gave positive tests for Morphine and the


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percentage of Morphine was 6.94. After completion of investigation, the

investigating officer submitted charge sheet for offences under Sections 21 (b)

and 29 of the NDPS Act against the accused Ansar Ali and Rahman Hussain in

this court as the offences under Sections 21 (b) and 29 of the NDPS Act are

triable by Special Court and this Court has been designated as the Special

Court for trying cases under the NDPS Act.

5. During trial, my learned predecessor framed charges under Sections 21

(b) and 29 of the NDPS Act against the accused Ansar Ali and Rahman

Hussain. When the contents of the charges were read over and explained to

the accused persons, they pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution examined seven witnesses.

The accused did not examine any witness.

7. In their examination under Section 313 Cr.P.C., the accused have denied

the prosecution case and have stated that the allegations levelled against them

are false and baseless.

8. The point for determination in this case is:-

Whether on 17-02-2016, at around 01:30 p.m., in the Platform No. 1 of the

Guwahati Railway Station, under a criminal conspiracy, the accused Ansar Ali

and Rahman Hussain, who were travelling in the Berth Nos. 11 and 12, Coach

No. A-1 of the Down Brahmaputra Mail train, found illegally possessing 200

grams of Morphine, 150 grams in one packet and 50 grams in another packet,

containing 6.94 percentage of Morphine, in contravention of the provisions of

the NDPS Act and thereby committed offences punishable under Sections 21

(b) and 29 of the said Act?

If so, what punishment do they deserve?

DECISION AND REASONS THEREOF

9. I have carefully examined the evidence on record, gone through the

relevant documents on record and after hearing the arguments advanced by

the learned counsels for both the sides and the written argument by the


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learned counsel for the accused, give my decision on the above point as

follows:-

10. PW-1 Amal Kr. Kalita, a GRPS Constable, has deposed that on

17.02.2016, he was entrusted with the train checking duty from 6.00 A.M. to

2.00 P.M. He was accompanied by Constable Suren Haloi and Debakanta Das.

At around 1.00 P.M., the Down Brahmaputra Mail train arrived in the Platform

No.1. While they were checking the train, in the AC Coach No.1, they found

two passengers in the Berth Nos. 11 and 12. Of the said two passengers, one

was sleeping and the other was sitting. They awoke the passenger who was

sleeping. Then he sat and they saw that he was sleeping over a packet,

covered with polythene. They suspected the same to be morphine. Thereafter,

they checked the passenger who was sitting and found another packet of

suspected morphine from his socks. They then informed the Officer-In-charge

of the GRPS about the matter and he sent S.I. Babul Das to do the needful. As

the train was about to leave, they brought down both the passengers to the

Platform No.1. In the meantime, S.I. Babul Das arrived and weighed the

suspected morphine packets and found the weight to be 200 grams.

Thereafter, S.I. Babul Das collected samples of 25 grams each, from each

packet of suspected morphine for sending to the FSL for examination. S.I.

Babul Das also seized the suspected morphine vide Ext.-1 seizure list. Ext.

1(1) is his signature therein. S.I. Babul Das also seized the train tickets and

AADHAAR Cards of the accused persons vide Ext-2 seizure-list. Ext-2(1) is his

signature therein.

11. In the cross-examination, he has denied the suggestion that he did

not tell the investigating officer that one packet of suspected Morphine was

recovered from the shocks of the passenger who was sitting. He has stated

that there were other passengers in the said compartment and they asked the

passengers to witness the recovery of the packets from the accused persons.

Before taking out the packet from the socks of the accused, he did not explain

to the accused that he has a legal right to be checked in presence of a

Magistrate or a Gazetted Officer. He has denied the suggestion that the

accused were not travelling by the Down Brahmaputra Mail Train. He has also

denied the suggestion that they did not recover any Morphine from the

possession of the accused persons.


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12. PW2 Babul Das has deposed that on 17.02.2016, he was posted at the

GRPS, Guwahati as the Second Officer. On that day, at around 01:20pm, while

he was present in the GRPS office, the Officer-In-charge of the GRPS received

an information from UBC Amar Kr. Kalita to the effect that while they were

checking the Down Brahmaputra Mail train standing in the Platform No.1, they

recovered morphine from two passengers, who were travelling in seat Nos. 11

and 12 of the coach No. A-1. The Officer-In-charge of the GRPS entered the

information in the General Diary Book vide entry No. 542, dated 17.02.2016.

Ext. 3 is a extract copy of the said General Diary Entry and Ext. 3(1) is the

signature of the Officer-In-charge of the GRPS namely, Pradip Talukdar, which

he can identify. After making the General Diary entry, the Officer-In-charge

issued Authority letter in his favour to do the needful as per the provisions of

the NDPS Act. Ext. 4 is the said Authority letter and Ext. 4(1) is the signature

of the Officer-In-charge Pradip Talukdar, which he can identify. After receiving

the Authority letter, along with Constable Debojit Kakoti, he went to the place

of occurrence. He also took weighing machine, seal, etc. On reaching the place

of occurrence, he saw that the train checking party had detained two

passengers inthe platform No.1 along with their belongings. He found that the

passengers were carrying two packets of suspected morphine. He weighed

both the packets. One packet of morphine was found with the accused Ansar

Ali. It was kept under his bed in berth No.11. He kept it concealed there and

was sleeping over the same. Another packet was kept concealed inside the

socks. One packet contained 150 grams of morphine and the other packet

contained 50 grams of morphine. He also recovered one AADHAAR Card from

the possession of the accused Ansar Ali. He seized both the packets along with

the AADHAAR Card from the possession of the accused Ansar Ali. Ext. 1 is the

seizure memo and Ext. 1(2) is his signature therein. Ext. 1(3) and Ext. 1(4) are

the signatures of accused Ansar Ali and Rahman Hussain therein, respectively.

Thereafter, he collected samples from both the packets and after mixing the

samples, prepared two samples for sending to the FSL. One of the packets is

original and the other is duplicate. M.Ext. 1 is the duplicate sample and M.Ext.

1(1) is his signature therein. M.Ext. 1(2) is the signature of accused Ansar Ali

and M.Ext.1 (3) is the signature of the accused Rahman Hussain therein. M.

Ext. 2 is the AADHAAR Card of the accused Ansar Ali. He also recovered one

Railway ticket in the name of both the accused persons and AADHAAR card


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from the possession of the accused Rahman Hussain. He seized the Railway

ticket and the AADHAAR card from the accused Rahman Hussain vide Ext. 2

seizure list. Ext. 2(2) is his signature and Ext. 2(3) is the signature of accused

Rahman Hussain and Ext. 2(4) is the signature of the accused Ansar Ali,

therein. M.Ext. 3 is the Railway ticket and M.Ext. 4 is the AADHAAR card of the

accused Rahman Hussain. Thereafter, he examined the seizure witnesses. He

also prepared a sketch map of the place of occurrence. Ext. 5 is the said sketch

map and Ext. 5(1) is his signature therein. Thereafter, he issued notice under

Section 43 of the NDPS Act to the accused persons and arrested them. After

completing the entire process, he returned to the GRPS along with the

accused, the seized articles and the sample packets. He entered the seized

articles and the sample packets in the Malkhana register and thereafter,

handed over the same to the in-charge of the Malkhana. He also interrogated

the accused persons and recorded their statements. Thereafter, he lodged an

FIR against the accused persons. Ext. 6 is the FIR and Ext. 6(1) is his signature

therein. Ext. 7 is the printed form of the FIR and Ext. 7(1) is his signature

therein.

13. In the cross-examination, he has stated that he did not show the

Authority Letter at the time of producing the accused persons before the Chief

Judicial Magistrate. He has denied the suggestion that the Authority Letter

was manufactured subsequently. He has stated that he did not issue any

notice under Section 50 of the NDPS Act to the accused Ansar Ali. He has

stated that he has mentioned about collecting the samples of the seized

Morphine in the F.I.R., but he did not mention in detail how he sealed the

sample packets. He has stated that he did not mention in the F.I.R. that he

had weighted the sample, but mentioned the same in the case diary. He has

stated that he did not mention in the F.I.R. about the quantity of the sample or

how he has taken the same. He called other persons to witness the seizure

but, they did not agree to his request and left the place. He has stated that he

did not mention their names in the F.I.R. He has denied the suggestion that

he has violated Section 50 of the NDPS Act. He has stated that he did not

prepare any separate inventory under Section 52 (A) of the NDPS Act. He has

stated that he did not submit any certificate regarding condition of the

weighing machine. He did not collect separate sample of requisite quantity


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from each packet. He did not mention under what provision he had collected

the sample from both the packets and after mixing the same, prepared two

samples. He did not submit copy of the Malkhana Register. He has denied the

suggestion that he did not keep the sample and the seized articles in proper

custody. He has stated that after returning to the GRPS, the G.D. Entry was

made. He has stated that the Investigating Officer recorded his statement. He

has denied the suggestion that he did not tell the Investigating Officer about

depositing the seized articles and the samples in the Malkhana of the GRPS.

He has denied the suggestion that he had entered the G.R. number in the

duplicate sample mechanically. He did not seal the envelope where he had

kept the AADHAAR Cards and the journey ticket. He has stated that he did not

sign in the envelope and also did not obtain signatures of the accused persons

in the envelope. He has denied the suggestion that the same were not

recovered from the possession of the accused persons. He has denied the

suggestion that he had forcibly obtained signatures of the accused persons in

the seizure lists and sample packets. He has also denied the suggestion that

the accused persons were not travelling by the Down Brahmaputra Mail Train.

He has also denied the suggestion that nothing was recovered from the

possession of the accused persons.

14. The testimony of the PW-2 has proved beyond all reasonable doubt

that the accused were travelling by the Down Brahmaputra Mail Train and the

suspected morphine were recovered from their possession and the samples of

the same were collected and their signatures were obtained therein. Because,

though the defence suggested to the PW-2 that the accused were not

travelling by the Down Brahmaputra Train and nothing was recovered from

their possession, the suggestion that the Investigating Officer had forcibly

taken the signatures of the accused persons in the seizure lists and the sample

packets proves that at the relevant time, the accused were present in the place

of occurrence. Further, the defence did not explain if the accused were not

travelling by the Down Brahmaputra Mail Train, then where the Investigating

Officer forcefully took their signatures in the seizure-lists and sample packets?

They also did not explain if the accused were not travelling by the Down

Brahmaputra Mail Train, then wherefrom their AADHAAR Cards and the railway

ticket were recovered by the GRPS personnel? Further, defence did not


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challenge the PW-2 in the cross-examination that the Material Ext-1 is not the

duplicate sample and the Material Ext-1(2) and 1(3) are not the signatures of

accused Ansar Ali and Rahman Hussain. Defence also did not challenge the

PW-2 in the cross-examination that the Material Ext-2 and 4 are not the

AADHAAR Cards of the accused Ansar Ali and Rahman Hussain and the

Material Ext-3 is not the railway ticket of the accused persons. Therefore, the

PW-2 has proved beyond an iota of doubt the case of the prosecution that on

the alleged date, time and place, the suspected morphine were recovered from

the possession of the accused Ansar Ali and Rahman Hussain and sample of

the same were collected as per the law.

15. PW-4 Suren Haloi, another GRPS Constable, has also deposed that on

17.02.2016, he was posted at the Guwahati GRPS. On that day, he was on

duty from 06:00 am to 2:00 pm at the GRP Control. On that day, at around

1:00 pm, the Down Brahmaputra Mail train arrived in the Platform No. 1.

Then, along with constable Amal Kalita, Deba kanta Das and Zakir Hussain, he

started checking the A-1 coach. During search, they found two passengers

travelling in the berth Nos.11 and 12. They were travelling together. During

search, under the bed cover of the passenger of the berth No. 11, they found

one packet of morphine. Another packet of morphine was found inside his

socks. Thereafter, they brought down both the passengers to the Platform

No.1 along with their articles and the packets of morphine. Constable Amal

Kalita informed the O.C.,GRPS over phone and the O.C., GRPS sent S.I. Babul

Das to do the needful. S.I. Babul Das then came to the Platform No. 1, seized

both the packets of morphine, weighed the same and thereafter, collected

samples from both the packets, prepared four sample packets and thereafter,

entered the same in envelope and sealed the same. S.I. Babul Das also

recovered one train ticket and one AADHAAR Card from the passenger of the

berth No. 12 and seized the same. Ext.1 is the seizure list by which the

contraband was seized. Ext.1(5) is his signature. Ext. 2 is the seizure list by

which the journey ticket and AADHAAR Card were seized from the passenger

of berth No. 12. Ext 2(5) is his signature. M.Ext.1 is the duplicate sample and

M. Ext. 1(3) is his signature. After completion of the search and seizure, the

two accused persons were taken to the police station along with the seized

materials and the sample packets.


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16. In the cross-examination, he has stated that he did not tell the

investigating officer about preparing of four sample packets as the

investigating officer himself did it. He also did not tell the investigating officer

about weighing the seized contraband as the investigating officer himself did

it. He has denied the suggestion that he has deposed in the court about taking

of four samples and weighing the seized contraband to improve the

prosecution case. He has not submitted any document to show that he was on

duty on that day. There was passenger movement, when the train arrived. He

has stated that when he searched the body of the accused, he did not explain

to him that he has the right to be checked in presence of a Magistrate or a

Gazetted Officer. He has stated that he called other passengers to witness the

recovery, but they did not come forward. He has denied the suggestion that

he has deposed falsely that he called the other passengers to witness the

recovery but, they did not come forward. He has stated that he did not take

any photograph of the passengers’ chart of the AC coach. He has denied the

suggestion that he was not on checking duty on the relevant date. He has

denied the suggestion that he has put his signature in the seizure list without

knowing the contents of the same. He has also denied the suggestion that at

the request of his superior officer, he put the signature in the seizure list at the

police station. He has also denied the suggestion that the accused persons

were not travelling by the Down Brahmaputra Mail train on that day. He has

denied the suggestion that noting was recovered from the possession of the

accused persons. He has denied the suggestion that the M. Ext. 1 is not

connected with the present case. He has denied the suggestion that he has

signed in the M. Ext. 1 at the police station under the instruction of his

superior officer. He has denied the suggestion that he has deposed falsely on

being tutored by his superior officer.

17. PW-5 Deba Kanta Das, another GRPS, Constable, has deposed that on


duty from 06:00 am to 2:00 pm at the GRPS. On that day, at around 1:00 pm,

the Down Brahmaputra Mail train arrived in the Platform No. 1. Then, along

with constable Amal Kalita, Suren Haloi and Zakir Hussain, he went to check

the train. During checking of the A-1 coach, they found two passengers

travelling in the berth Nos.11 and 12. During search, under the bed cover of


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the passenger Ansar Ali of berth No. 11, they found one large packet of

morphine. Another small packet of morphine was found inside his socks.

Thereafter, they brought down both the passengers to the platform No.1,

along with their belongings and the packets of morphine. Constable Amal

Kalita informed the Officer-In-charge of the GRPS over phone about the same.

The Officer-In-charge sent S.I. Babul Das to do the needful. S.I. Babul Das

then came to the platform No. 1 and weighed the packets of morphine. One

packet weighed 150 grams and the other packet weighed 50 grams. He seized

both the packets of morphine and thereafter, took sample from both the

packets and prepared four sample packets and those sample packets were

closed and thereafter, entered in envelope and sealed. S.I. Babul Das also

recovered the train ticket and one AADHAAR Card from the passenger Rahman

Hussain of berth No. 12 and those were also seized. Ext.1 is the seizure list, by

which the contraband was seized. Ext. 1(6) is his signature. Ext.2 is the seizure

list by which the journey ticket and the AADHAAR Card was seized from the

passenger of berth No.12. Ext. 2(6) is his signature. M. Ext 1 is the duplicate

sample and M. Ext 1(4) is his signature. After completion of the search and

seizure, the two accused persons were taken to the police station along with

the seized materials and the sample packets.

18. In the cross-examination, he has stated that he did tell the

investigating officer about preparing four packets of samples. He has denied

the suggestion that he has deposed in the court about taking of four samples

to improve the case. They used to check train compartment-wise but, may not

always together. There was passenger movement when the train arrived. He

has stated that he did not call any other passenger to remain present at the

time of checking. He has stated that they did not call any other person to

remain present at the time of search and seizure. He has stated that at the

time of searching the body of the accused, he did not inform the accused that

he has the legal right to be checked in presence of a Magistrate or a Gazetted

Officer. He did not take any photograph of the passengers’ chart of the AC

Coach. He has denied the suggestion that he was not on checking duty on the

relevant date. He has denied the suggestion that he put his signature in the

seizure list without knowing about the contents of the same. He has denied

the suggestion that at the request of his superior officer, he has put his


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signature in the seizure list. He has denied the suggestion that the accused

persons were not travelling by the Down Brahmaputra Mail train on that day.

He has denied the suggestion that nothing was recovered from the possession

of the accused persons. He has denied the suggestion that the M. Ext.1 is not

connected with the present case. He has denied the suggestion that he put his

signature in the M. Ext.1 at the police station under the instruction of his

superior officer. He has denied the suggestion that he has deposed falsely on

being tortured by his superior officer.

19. PW-6 Zakir Hussain, another GRPS Constable, has deposed that on


duty from 09:00am to 09:00pm. On that day, at around01:00pm, the Down

Brahmaputra Mail train arrived in the Platform No. 1. Then, the Officer-In-

charge asked them to check the compartments of the train. Thereafter, along

with Constable Amal Kalita, Deba kanta Das and Suren Haloi, he started

checking of the A-1 coach. During search, they found two passengers

travelling in the berth Nos. 11 and 12. During search, under the bed cover of

the passenger Ansar Ali of berth No. 11, they found one large packet of

morphine. They also found another small packet of morphine inside his socks.

Constable Amal Kalita informed the Officer-In-charge of the GRPS over phone

about the same and the Officer-In-charge sent S.I. Babul Das to do the

needful. In the meantime, as the train was about to leave, they brought down

both the passengers to the Platform No. 1, along with their belongings and

the packets of morphine. S.I. Babul Das seized the packets of morphine, one

AADHAAR Card and journey ticket from the passenger of the berth No. 12 and

also took sample from both the packets and prepared sample packets for

sending to the FSL. After completion of the search and seizure process, the

two accused persons were taken to the police station along with the seized

materials and the sample packets.

20. In the cross-examination, he has stated that he has not submitted the

duty register of the PS. His signature was not obtained in any document. He

has denied the suggestion that on that day, he was not doing train checking

duty. He has denied the suggestion that he did not see any occurrence or any

recovery and therefore, his signature was not taken in any document. He has


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stated that in the platform No.1, there were many stalls, vendors and

passengers present.

21. PW-7AshishChoudhruy, the investigating officer of the case has deposed

that on 17.02.2016, he was posted at the Guwahati GRPS as a sub-Inspector.

On that day, UBC 131 Amal Kalita, UBC 362 Suren Haloi, UBC 70 Ram Naresh

Roy, UBC 219 Zakir Hussain, UBC 224 Dulu Kanta Das, Constable (B) Rafiqul

Hussain and Home Guard Kameshar Rabha were engaged in train checking

duty. At around01:20pm, while they were on train checking duty, from the

Down Brahmaputra Mail train, they recovered two packets of morphine from

the possession of the accused Ansar Ali and Rahman Hussain. At that time, the

Down Brahmaputra Mail train was standing in the Platform No. 1. They

immediately informed the Officer-In-charge of the GRPS namely, Pradip

Talukdar, about the same. After receiving the information, the Officer-In-

charge entered the same in the General Diary Book vide Entry No. 542, dated

17.02.2016 and authorized S.I. Babul Das to do the needful as per the

provisions of the NDPS Act. S.I. Babul Das then went to the place of

occurrence, seized the morphine, collected samples of the same following all

the procedure and thereafter, arrested the accused persons. After completing

all the processes, he returned to the police station and lodged an FIR. The

Officer-In-charge of the GRPS registered the FIR as the Guwahati GRPS Case

No. 23/2016 and entrusted himto investigate the case. Ext. 7 is the printed

form of FIR where he was formally entrusted to do the investigation. Ext. 7(2)

is the signature of the Officer-In-charge of the GRPS namely, Pradip Kr.

Talukdar, which he can identify. Accordingly, he investigated the case. During

the course of investigation, he examined the informant. He also got the

accused persons examined by the doctor. He also interrogated the accused

persons and they confessed their guilt. On the next day, he produced the

accused persons before the Chief Judicial Magistrate and took them on two

days police remand. He visited the place of occurrence and prepared a sketch

map. Ext. 10 is the sketch map and Ext. 10(1) is his signature therein. On

19.02.2016, he forwarded the sample to the FSL, Kahililpara for chemical

examination. The forwarding letter was signed by the DSP, GRPS, Iftekaar

Alam. Ext. 11 is the forwarding letter (under objection, copy not furnished).

Ext. 12 is the test memo prepared by him (under objection, copy not


13

furnished). After that, he was transferred and he could not complete the

investigation. Subsequently, S.I. Jyoti Prasad Bania completed the

investigation.

22. In the cross-examination, he has stated that he has recorded the

statement Babul Das (PW-2). He has further stated that Babul Das did not tell

him that he had kept the seized articles and the samples in the GRPS

Malkhana. In the sketch map, he did not show the stalls and offices situated in

the platform No. 1. He has further stated that he did not make any note in the

case diary as to why the sample could not be sent for examination prior to

19.02.2016. The facsimile seal used in the test memo, as well as in the sample

packets, are in their office. He has not made any note in this regard. He has

stated that he has not mentioned in the case diary from whom he had

received the sample for sending to the FSL. He has denied the suggestion that

as the sample were not kept in safe custody of the police station, he did not

mention about the same in the case diary or in any other document. He has

further stated that he did not collect the passengers chart. He has also stated

that he had requested the vendors, shopkeepers and others to become

witness but, they refused to become witness. He has denied the suggestion

that he did not conduct the investigation properly.

23. PW-3 Gajendra Nath Deka has deposed that on 19.02.16, he was

working as the Joint Director, Directorate of Forensic Science, Assam. On that

day, he received a parcel through the Director, DFS, Assam in connection with

Guwahati, GRPS Case No. 23/2016 consisting of one exhibit enclosed in a

sealed envelope. The facsimile of the seal was found to be GSTY, GRPS. The

parcel contained one sealed envelope marked as S-1 having a closed

polythene packet containing 5 grams of brown colour powder substance. He

had marked the sample as DN-47/2016. He had examined the sample as per

the United Nations’ Drug Testing Laboratory Manual and got positive tests for

Morphine. Therefore, he issued a report stating that the Ext. DN-47/2016 gave

positive tests for morphine and the percentage of morphine was 6.94. The

report was forwarded to the DSP, Railway Police, Assam, by the Director, Mr.

K. C. Sharma. Ext.8 is his report and Ext. 8(1) is his signature. Ext.9 is the

forwarding letter and Ext. 9(1) is the signature of Mr. K. C. Sharma, Director of


14

Forensic Science. M. Ext.5 is the remnant of the sample, which was returned

with the report and M. Ext. 5(1) is his signature therein.

24. By Cross-examining the PW-3, defence has failed to bring out anything

based on which it can be said that he was not telling the truth.

25. Defence did not challenge the PW-2 in the cross-examination that he

did not seize the Material Ext-3 Train Journey Ticket, Material Ext-2 AADHAAR

Card of the accused Ansar Ali and Material Ext-4 AADHAAR Card of accused

Rahman Hussain or that the same are not genuine. The Material Ext-3 Railway

Ticket is an e-Ticket and the Material Ext-2 AADHAAR Card of the accused

Ansar Ali and Material Ext-4 AADHAAR Card of accused Rahman Hussain are

original AADHAAR Cards. Therefore, the suggestion put to the PW-2 and other

prosecution witnesses as discussed above that the accused were not travelling

by the said Down Brahmaputra Mail Train is not supported by the evidence on

record. The same are also absurd suggestion. The accused did not challenge

the exhibits. In their examination under section 313 Cr.P.C., the accused have

given their address as Pulibar, Jorhat and Kasnating, Kamargaon, Golaghat,

Assam, which are nearby places. Therefore, on the day of the alleged

occurrence, if they were not travelling by the said Down Brahmaputra Mail

Train with the Material Ext-3 e-Ticket purchased in their names and they were

not carrying the Material Ext-2 and 4 AADHAAR Cards with them, then we have

to assume that the GRPS personnel who had apprehended them had

manufactured the e-Railway Ticket of a running train and the AADHAAR Cards

of the accused persons in Guwahati with intent to falsely implicate them in this

case. This is nothing but absurd and fertile imagination of the accused

persons. The same proved beyond all reasonable doubt that the accused were

travelling by the said Down Brahmaputra Mail Train with the Ext-3 e-Ticket and

carrying the Material Ext-2, and 4 as their identity cards and were carrying the

suspected Morphine as deposed by the prosecution witnesses. Therefore, the

accused must be held guilty of possessing the alleged Morphine.

26. In view of the above, it is crystal clear that one packet of suspected

Morphine containing 150 grams of Morphine and was recovered from the

possession of the accused Ansar Ali and another packet of suspected Morphine

containing 50 grams of Morphine was recovered from the possession of the


15

accused Ansar Ali or Rahman Hussain. Further, as can be seen from the

testimonies of the prosecution witnesses discussed above, the accused Ansar

Ali was sleeping in the Berth No.11 over the packet of Morphine and the

accused Rahman Hussain was sitting in the berth No.12, concealing the packet

of Morphine inside his socks. But, before searching the body of the accused

persons, the GRPS personnel (the PW-1, PW-4, PW-5 and PW-6) did not inform

them that they have a legal right to be searched in the presence of a Gazetted

Officer or a Magistrate. Therefore, the learned counsel for the accused

vehemently argued that as the informant did not take the accused persons to

the nearby Magistrate or to any Gazetted Officer for body search, the

prosecution case is liable to be dismissed for noncompliance of the mandatory

provisions of section 50 of the NDPS Act, alone. In support of her argument,

the learned counsel for the accused relied upon the following judgments:-

1. Arif Khan -Vs- State of Uttarkhand, AIR 2018 SC 2123.

2. Vijaysinh Chandubhab Jadeja -Vs- State of Gujrat, (2011) 1 SCC

609.

27. In the aforesaid cases, the Hon’ble Supreme Court has held that

Section 50 of the NDPS Act is a mandatory provision and noncompliance of

Section 50 is fatal to the prosecution case.

28. In the case of Arif Khan (Supra), the Hon’ble Supreme Court has

held as follows:-

“19. The short question which arises for consideration in the appeal is

whether the search/recovery made by the police officials from the appellant

(accused) of the alleged contraband (charas) can be held to be in accordance

with the procedure prescribed under Section 50 of the NDPS Act.

20. In other words, the question that arises for consideration in this

appeal is whether the prosecution was able to prove that the procedure

prescribed under Section 50 of the NDPS Act was followed by the Police

Officials in letter and spirit while making the search and recovery of the

contraband “Charas” from the appellant (accused).

https://indiankanoon.org/doc/961083/



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21. What is the true scope and object of Section 50 of the NDPS Act,

what are the duties, obligation and the powers conferred on the authorities

under Section 50 and whether the compliance of requirements of Section 50

are mandatory or directory, remains no more res integra and are now settled

by the two decisions of the Constitution Bench of this Court in State of Punjab

vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

22. Indeed, the latter Constitution Bench decision rendered in the case

of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned

questions after taking into considerations all previous case law on the subject.

23. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra)

that the requirements of Section 50 of the NDPS Act are mandatory and,

therefore, the provisions of Section 50 must be strictly complied with. It is held

that it is imperative on the part of the Police Officer to apprise the person

intended to be searched of his right under Section 50 to be searched only

before a Gazetted officer or a Magistrate. It is held that it is equally mandatory

on the part of the authorized officer to make the suspect aware of the

existence of his right to be searched before a Gazetted Officer or a Magistrate,

if so required by him and this requires a strict compliance. It is ruled that the

suspect person may or may not choose to exercise the right provided to him

under Section 50 of the NDPS Act but so far as the officer is concerned, an

obligation is cast upon him under Section 50 of the NDPS Act to apprise the

suspect of his right to be searched before a Gazetted Officer or a Magistrate.

(See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and

Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392).”

“30. For the aforementioned reasons, we are of the considered

opinion that the prosecution was not able to prove that the search and

recovery of the contraband (Charas) made from the appellant was in

accordance with the procedure prescribed under Section 50 of the NDPS Act.

Since the non-compliance of the mandatory procedure prescribed under

Section 50 of the NDPS Act is fatal to the prosecution case and, in this case,

we have found that the prosecution has failed to prove the compliance as

required in law, the appellant is entitled to claim its benefit to seek his

acquittal.”

















17

29. But, in the case of Arif Khan (Supra), the alleged recovery/search

of the contraband (Charas) was made by the raiding police party from the

appellant's body and body search was not done in accordance with the

procedure prescribed under Section 50 of the NDPS Act. Whereas, in the case

in our hand, the accused were sleeping over one packet of Morphine and was

carrying the other packet of morphine inside one’s socks. Therefore, in the

instant case, the entire morphine was not recovered by searching the body of

the accused persons. Therefore, the cases relied upon by the learned counsels

for the accused are not applicable to the case in our hand.

30. Further, though the learned counsel for the accused persons has

relied upon the case of Vijaysinh Chandubha Jadeja (supra), it seems, the

learned counsel has misinterpreted the same. In the said case, the Hon’ble

Supreme Court has held that if the conviction is based solely on the basis of

the recovery of the illicit article made from the person of the accused during

body search, strict compliance of Section 50 of the NDPS Act is required. The

relevant portion of the judgment reads as follows:-

“22.In view of the foregoing discussion, we are of the firm opinion

that the object with which right under Section 50(1) of the NDPS Act, by way

of a safeguard, has been conferred on the suspect, viz. to check the misuse of

power, to avoid harm to innocent persons and to minimise the allegations of

planting or foisting of false cases by the law enforcement agencies, it would be

imperative on the part of the empowered officer to apprise the person

intended to be searched of his right to be searched before a gazetted officer or

a Magistrate. We have no hesitation in holding that in so far as the obligation

of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is

concerned, it is mandatory and requires a strict compliance. Failure to comply

with the provision would render the recovery of the illicit article suspect and

vitiate the conviction if the same is recorded only on the basis of the

recovery of the illicit article from the person of the accused during

such search. (Emphasis added).

31. Therefore, for noncompliance of the mandatory provisions of Section

50 of the NDPS Act, the entire prosecution case cannot be rejected as the

instant case is not solely base on recovery of the morphine from the bodies of






18

the accused persons during such search. Hence, the contention of the learned

counsel for the accused is rejected.

32. Further, relying on the case of STATE OF HIMACHAL PRADESH Vs.

PAWAN KUMAR, with STATE OF RAJASTHAN Vs. BHANWAR LAL,

reported in (2005) 4 SCC 350, the learned Additional Public Prosecutor has

argued that the Section 50 of the NDPS Act can have no application in the

facts and circumstances of the present case as the entire Morphine was not

recovered from the body of the accused persons. In the said case, a three-

Judge Bench of the Hon’ble Supreme Court has held as follows:-

“…In view of the discussion made earlier, Section 50 of the Act can

have no application on the facts and circumstances of the present case as

opium was allegedly recovered from the bag, which was being carried by the

accused. The High Court did not examine the testimony of the witnesses and

other evidence on merits. Accordingly, the matter has to be remitted back to

the High Court for a fresh hearing of the appeal.”

33. In the case of State Govt. of NCT of Delhi vs. Sunil and another,

reported in (2001) CriLJ 504, the Hon’ble Supreme Court observed as

follows:

“It is an archaic notion that actions of the police officer should be viewed with

initial distrust. At any rate, the court cannot begin with the presumption that

police records are untrustworthy. As a proposition of law the presumption

should be the other way around. The wise principle of presumption, which is

also recognised by the legislature, is that judicial and official acts are regularly

performed. Hence, when a police officer gives evidence in court that a certain

article was recovered by him on the strength of the statement made by the

Accused it is open to the court to believe that version to be correct if it is not

otherwise shown to be unreliable. The burden is on the Accused, through

cross-examination of witnesses or through other materials, to show that the

evidence of the police officer is unreliable. If the court has any good reason to

suspect the truthfulness of such records of the police the court could certainly

take into account the fact that no other independent person was present at the

time of recovery. But it is not a legally approvable procedure to presume that

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police action is unreliable to start with, nor to jettison such action merely for

the reason that police did not collect signatures of independent persons in the

documents made contemporaneous with such actions.”

34. Therefore, for noncompliance of the mandatory provisions of Section

50 of the NDPS Act, the prosecution case cannot be rejected and hence, the

contention of the learned counsel for the accused is rejected.

35. The learned counsel for the accused further argued that in the instant

case, the provisions of the Sections 42(1) and 42(2) of the NDPS Act were not

complied with, and hence, the prosecution case is liable to be rejected for

noncompliance of the mandatory provisions of Sections 42(1) and 42(2) of the

NDPS Act.

36. In the case of State Of Haryana vs Jarnail Singh and others,

decided on 29 April, 2004, the Hon’ble Supreme Court observed as follows:

“We, therefore, hold that in the facts of this case Section 50 of the

NDPS Act was not applicable since the contraband was recovered on search of

a vehicle and there was no personal search involved. The requirement of the

proviso to Section 42 was also not required to be complied with since the

recovery was made at a public place and was, therefore, governed by Section

43 of the Act which did not lay down any such requirement…”

37. As can be seen from the discussion made above, the case in our

hand is covered by the aforesaid case. Therefore, in the instant case, not

searching the bodies of the accused in presence of Magistrate or Gazetted

Officer is of no consequence as the case is not solely based on the recovery of

illicit drug made from the person of the accused during body search.

Therefore, the contention of the learned counsel for the accused is rejected.

38. But, in view of the discussion made above, as the accused were not

searched and the seizure of 50 grams of Morphine from the socks of the

accused was not made in presence of Magistrate or Gazetted Officer, the same

is fatal to the prosecution case to the extent of recovery of the said 50 grams

of Morphine. But, as the other packet of Morphine containing 150 grams of

Morphine was recovered from the possession of the accused Ansar Ali and he







20

was sleeping over the same, the same must be held to be recovery from the

possession of both the accused persons as both the accused persons were

travelling together with a common ticket. Therefore, though, non-compliance

of the mandatory procedure prescribed under Section 50of the NDPS Act

before searching the body of the accused persons and recovery of the packet

of Morphine containing 50 grams of Morphine is fatal to the prosecution case

as far as the said recovery is concerned, in view of the recovery of the other

packet of Morphine from the possession of the accused Ansar Ali, along with

the accused Ansar Ali, the accused Rahman Hussain also must also be held

guilty of possessing the other packet of Morphine containing 150 grams of

Morphine, as they were travelling together with a common ticket carrying the

Morphine.

39. Therefore, as the PW-3 has proved that the sample of suspected

Morphine gave positive tests for Morphine and the percentage of Morphine was

6.94, the 150 grams Morphine recovered from the possession of the accused

persons contained 10.41 grams of Morphine (6.94 per cent of150 grams is

equal to10.41 grams). Therefore, the only question that remains to be

answered is whether the seized Morphine is a narcotics drug as per the NDPS

Act and hence, the accused are guilty of committing the offences punishable

under Sections 21(b) and 29 of the said Act?

40. Section 8 of the NDPS Act reads as follows:-

“8. Prohibition of certain operations.—No person shall—

(a)cultivate any coca plant or gather any portion of coca plant; or

(b)cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use,

consume, import inter-State, export inter-State, import into India, export from

India or tranship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent

provided by the provisions of this Act or the rules or orders made thereunder

and in a case where any such provision, imposes any requirement by way of






21

licence, permit or authorization also in accordance with the terms and

conditions of such licence, permit or authorization:

Provided that, and subject to the other provisions of this Act and the rules

made thereunder, the prohibition against the cultivation of the cannabis plant

for the production of Ganja or the production, possession, use, consumption,

purchase, sale, transport, warehousing, import inter-State and export inter-

State of ganja for any purpose other than medical and scientific purpose shall

take effect only from the date which the Central Government may, by

notification in the Official Gazette, specify in this behalf:

[Provided further that nothing in this section shall apply to the export of poppy

straw for decorative purposes.]”

41. "Opium " is defined in Section 2 of the NDPS Act as under:

"(xv) "Opium " means-

(a) the coagulated juice of the Opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated

juice of the Opium poppy,

but does not include any preparation containing not more than 0.2 per

cent of morphine "

The term "Opium derivative" is defined in Section 2 as follows:

"(xvi) "Opium derivative" means -

(a) medicinal Opium, that is, Opium which has undergone the processes

necessary to adapt it for medicinal use in accordance with the requirements of

the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf

by the Central Government whether in powder form or granulated or otherwise

or mixed with neutral materials;

(b) prepared Opium , that is, any product of Opium by any series of

operations designed to transform Opium into an extract suitable for smoking

and the dross or other residue remaining after Opium is smoked;


22

(c) phenanthrene alkaloids, namely, morphine , Codeine, thebaine and

their salts;

(d) diacetylmorphine, that is, the alkaloid also known as die-morphine or

heroin and its salts; and

(e) all preparations containing more than 0.2 per cent. of morphine or

containing any diacetylmorphine".

42. According to the Notification dated 19.10.2001, issued by the Central

Government; the Morphine is covered by the Entry No. 77 of the said

Notification. The relevant portion of the Notification reads as under:

“In exercise of the powers conferred by Clauses (viia) and (xxiiia) of

Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of

1985) and in supersession of Ministry of Finance, Department of Revenue

Notification S.O. 527(E) dated 16thJuly, 1996, except as respects things done

or omitted to be done before such supersession, the Central Government

hereby specifies the quantity mentioned in columns 5 and 6 of the Table

below, in relation to the narcotic drug and psychotropic substance mentioned

in the corresponding entry in columns 2 to 4 of the said Table, as the small

quantity and commercial quantity respectively for the purposes of the said

clauses of that section.

Sl. Name of Other Chemical Name Small Commercial

No. Narcotic non- Quantity Quantity (in

Drug and proprietary (in gm) gm./kg.)

Psychotropic name

Substance

77. Morphine Morphine 5 gm. 250 gm.

43. Section 21 (b ) of the NDPS Act is reproduced below:-

“21. Punishment for contravention in relation to manufactured

drugs and preparations.- Whoever, in contravention of any provision of this



23

Act or any rule or order made or condition of licence granted thereunder,

manufactures, possesses, sells, purchases, transports, imports inter-State,

exports inter-State or uses any manufactured drug or any preparation

containing any manufactured drug shall be punishable,-

(b) where the contravention involves quantity lesser then commercial quantity

but greater than small quantity, with rigorous imprisonment for a term which

may extent to ten years and with fine which may extend to one lakhs rupees.”

44. Therefore, as Morphine is a manufactured drug, possession of Morphine

in contraventions of the provisions of the NDPS Act is an offence punishable

under Section 21 of the said Act. In the case in our hand, as the quantity of

the seized Morphine is lesser then commercial quantity but greater than small

quantity, the accused are liable to be punished under section 21 (b ) of the

NDPS Act, as morphine is an Opium derivative as per Section 2(xvi)(c) of the

NDPS Act which states that, all preparations containing more than 0.2 percent

of morphine or containing any diacetylmorphine is an Opium derivative.

Further, according to Section 2(xi), all Opium derivatives fall under the

category of manufactured drug. Therefore, the seized morphine is an Opium

derivative and hence, is a manufactured drug, the possession of which, in

contravention of the provisions of Section 8 of the NDPS Act, which prohibits

certain operations to the effect that no person shall produce, manufacture,

possess, sell, purchase, transport, warehouse, use, consume, import inter-

State, export inter-State, import into India, export from India or transship any

narcotic drug or psychotropic substance, is a punishable under Section 21 of

the NDPS Act.

45. As can be seen from the above discussion, the suspected Morphine

gave positive tests for Morphine and the percentage of Morphine was 6.94.

Therefore, the 150 grams Morphine recovered from the possession of the

accused persons contained 10.41 grams of Morphine (6.94 per cent of150

grams is equal to10.41 grams) which is lesser then commercial quantity, but

greater than small quantity and hence, the same is punishable under Section

21 (b) of the NDPS Act.



24

46. In the result, from the facts and circumstances of the case and

above discussion, I hold that the prosecution has succeeded in bringing home

the charges under Sections 21 (b) and 29 of the NDPS Act against the accused

Ansar Ali and Rahman Hussain that on 17-02-2016, at around 01:30 p.m., in

the Berth Nos. 11 and 12, Coach No. A-1 of the Down Brahmaputra Mail Train,

under a criminal conspiracy, they were illegally possessing/ carrying 150 grams

of Morphine, the Morphine percentage being 6.94 (therefore, they were

possessing 10.41 grams of Morphine as 6.94 per cent of 150 grams is equal to

10.41 grams), which is lesser then commercial quantity, but greater than small

quantity, in contravention of the provisions of the NDPS Act. In view of the

above, as the accused were possessing/ carrying the Morphine under a

criminal conspiracy, they are guilty of committing the offence under Section 29

of the NDPS Act also. Therefore, I hold both the accused guilty of committing

the offences punishable under Sections 21 (b) and 29 of the NDPS Act. The

point is decided accordingly.

47. The Probation of Offenders Act is not applicable to a case under

Section 21 (b) and 29 of the NDPS Act. Hence the convicts are not entitled to

get the benefit of the ameliorative relief as envisaged under the said Act.

48. Heard the convicts Ansar Ali and Rahman Hussain on the question of

sentence. They have pleaded leniency in awarding the punishment on the

grounds that they are first offenders and are the sole bread earners of their

families.

49. In the case of STATE vs. MUSHTAQ AHMAD & OTHERS, reported

in (2015) 10 SCALE 419: (2016) 1 SCC 315, the Hon’ble Supreme Court has

observed as follows:

“15. It appears from the Statement of Objects and Reasons of the

amending Act of 2001 that the intention of the legislature was to rationalise

the sentence structure so as to ensure that while drug traffickers who traffic in

significant quantities of drugs are punished with deterrent sentence, the

addicts and those who commit less serious offences are sentenced to less

severe punishment. Under the rationalised sentence structure, the punishment

would vary depending upon the quantity of offending material. Thus, we find it


25

difficult to accept the argument advanced on behalf of the Respondent that the

rate of purity is irrelevant since any preparation which is more than the

commercial quantity of 250 gm and contains 0.2% of heroin or more would be

punishable Under Section 21(c) of the NDPS Act, because the intention of the

legislature as it appears to us is to levy punishment based on the content of

the offending drug in the mixture and not on the weight of the mixture as

such. This may be tested on the following rationale. Supposing 4 gm of heroin

is recovered from an accused, it would amount to a small quantity, but when

the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified

as a commercial quantity. In the mixture of a narcotic drug or a psychotropic

substance with one or more neutral substance(s), the quantity of the neutral

substance(s) is not to be taken into consideration while determining the small

quantity or commercial quantity of a narcotic drug or psychotropic substance.

It is only the actual content by weight of the narcotic drug which is relevant for

the purposes of determining whether it would constitute small quantity or

commercial quantity. The intention of the legislature for introduction of the

amendment as it appears to us is to punish the people who commit less

serious offences with less severe punishment and those who commit grave

crimes, such as trafficking in significant quantities, with more severe

punishment.

50. In the instant case, the convicts are not petty drug traffickers as they

were possessing / carrying the morphine by travelling in a train, with valid e-

tickets, in a pre-planned manner. Hence, I deem it proper to punish the

convicts with deterrent sentence.

O R D E R

51. Considering the entire facts and circumstances of the case, I

sentence the convicts Ansar Ali and Rahman Hussain to undergo rigorous

imprisonment for three years each, and to pay fine of Rs. 30,000/- (Rupees

thirty thousand) each, in default to undergo rigorous imprisonment for three

months each, for committing the offence under Sections 21 (b) and 29 of the

NDPS Act which, in my opinion, will meet the ends of justice in this case. There

is no necessity of imposing separate sentence upon the convicts under Section

29 of the NDPS Act. The period of detention already undergone by the convicts


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during investigation and trial shall be set-off from the sentence of

imprisonment. Their bail bonds stand cancelled. Issue Jail warrants.

52. Destroy the seized articles in due course of time.

53. Furnish copy of the judgment to the convicts free of cost, immediately.

54. Signed, sealed and delivered in the open Court on this the 20th day of

April, 2019, in Guwahati.

(Shri A. Chakravarty)

Special Judge, Kamrup (M), Guwahati

Dictated & corrected by me.

(Shri A. Chakravarty )



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A P P E N D I X

A. Prosecution Witnesses:

1. PW-1 Amal Kr. Kalita

2. PW-2 Babul Das

3. PW-3 Gajendra Nath Deka

4. PW-4 Suren Haloi

5. PW-5 DebaKanta Das

6. PW-6 Zakir Hussain

7. PW-7 Ashish Choudhury

B. Prosecution Exhibits:

1. Seizure list of Morphine

2. Seizure list of Railway ticket and AADHAAR Card.

3. Extract copy of GDE No. 542, dated 17.02.2017

4. Authority Letter

5. Sketch Map

6. FIR

7. Printed form of FIR

8. FSL Report

9. Forwarding Letter of FSL Report

10. Sketch Map

11. Forwarding Letter of the sample by DSP, GRPS, to FSL


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12. Test Memo

C. Material Exhibits:

1. Duplicate Sample

2. AADHAAR Card of Ansar Ali

3. Railway Ticket

4. AADHAAR card of Raman Hussain

5. Remnant of the sample

(Shri A. Chakravarty)


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