Gita Bonia Vs the State of Assam and Anr.

2. This appeal is directed against the impugned judgment and order dated 17.01.2023 passed by the learned Special Judge, Charaideo in Special (N) Case No. 01/2016, whereby the appellant was sentenced to rigorous imprisonment for (ten) years and also a fine of Rs. 1,00,000/- (Rupees one lakh) only, in default of payment of fine to undergo further simple imprisonment for 3 (three) months u/s 21(c) of the NDPS Act, 1985.

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3. The case of the prosecution in brief is that on 06.09.2016, Sti Amarjyoti Bailung, the then S.I. of police of the Sonari Police Station lodged an FIR before the Officer-in-Charge, Sonari Police Station with reference to Sonari P.S GDE No. 139/16 dated 06.09.2016, alleging, that on receipt of a secret information that some unknown persons who were illegally transporting drug had arrived in the Gohain Hotel of Sonarl Town, he along with some staff of the police and Lady constable raided the hotel. He further stated that during raid of the hotel a woman was searched and during the search suspected Brown Sugar/Heroine were recovered from her possession. He also stated that during interrogation the apprehended woman disclosed that two more persons namely Monoj Kr. Shah and Badri Rai were also involved in the crime. He narrated that the

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recovery of the drug was informed to his superiors and the suspected drug along with the vehicle and some other articles were seized. In his FIR he narrated that the total weight of the suspected drug was 310.60 Gms. Along with the FIR the informant also submitted that the extract of the GDE No.139/16 dtd. 06.09.2016.

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On receipt of the FIR, a case vide Sonari P.S. Case no. 153/2016 u/s 22(c) of the NDPS Act was registered. After the criminal law was set in motion police duly investigated into the case and during investigation, the Investigating Officer recorded statement of the seizure witnesses, samples were also sent to FSL, Kahilipara, Guwahati for examination. Thereafter on receipt of positive test report of heroine, the Investigating Officer laid the charge sheet against the accused persons u/s 22(c) of the NDPS Act.

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Thereafter the accused persons along with the prosecution were heard and getting sufficient materials against them the particulars of the charge under section 29 read with section 21 (c) of the NDPS Act were read over and explained to the accused persons namely Monoj Kr. Sah and Badri Rai and the particulars of the charge under section 21 (C) and section 29 r/w 21(c) of the NDPS Act, were read over and explained to the accused Gita Bonia to which they pleaded not guilty and claimed to be tried. The defence side duly contested the case and the defence plea was that of denial.

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In this case though the prosecution examined some witnesses the defence side examined none and during the recording of their statement under section 313 Cr.P.C the accused persons claimed their innocence. The defense did not

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examine any witnesses of its own and claimed innocence in her defense statement.

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4. I have heard Mr. R.P. Sharma, learned Senior counsel for the appellant and Mr. K. Baishya, learned Addl. P.P.

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5. At this point, it would be apposite to discuss the evidence on record.

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6. During his evidence PW1 Sri. Utpol Rajkhowa narrated that the incident occurred in the Gohain hotel of Sonari town and he narrated that while he was taking meal in the hotel police arrived there and detained a lady. He further narrated that police asked i to put his signature and accordingly he put his signature in the seizure list. He also narrated that police seized some articles from the Lady and he also exhibited the seizure list signed by him which have been marked as Exhibit 1, 2 and 3. He could not say whether the lady had any companion. During his cross-examination he stated that the seized articles were not shown to him and he could not also state what articles were seized.

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7. In his evidence the PW-2 Papu Gogoi narrated that one day police came to Gohain Hotel and arrested a person. He narrated that police asked him to sign on a paper. He further narrated that some articles were seized and he also exhibited the seizure list which have been marked as Exhibit 2 and 3. During his cross-examination he stated that nothing was shown to him by the police. He also stated that he did not see from whom the articles were seized. During his cross-examination he added that on being asked by police he put his signature and he specifically expressed his ignorance about the incident.

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8. In his evidence the PW3, Sri Dibakar Buragohain, narrated that a lady was

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arrested from his hotel. During his cross-examination he stated that he is the owner of the hotel and stated that initially he was. not in the hotel. He further stated that one packet was shown to him by police and he was told that it was seized from the Lady. During his cross-examination he expressed his ignorance about the incident.

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9. P.W 4 Sri. Joyónta Hazarika, a police personnel narrated that the incident occurred on 06.09.2016. He narrated that on that day on receipt of information he along with others went in search of a group of drug peddlers. He further narrated that they found 300 Gms of brown sugar from the possession of the accused Gita Bonia who was searched by a lady constable. He also narrated that other accused persons were accompanied by the lady accused. During his crossexamination he narrated that other customers were there in the hotel and he stated that he did not either recover or seize anything.

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10. During her evidence PW-5, Smt. Priyonka Buragohain, the lady police constable who accompanied the informant narrated that the incident occurred in the month of September 2016 and she narrated that on the day of the incident at about 11:00 AM on being led by the informant they went to Gohain Hotel and searched the accused Gita Bonia and recovered 300 gms of Brown Sugar from her bag. She also narrated that other accused persons were also there. During her cross examination she stated that she made the body search of the accused in a different room. She stated that she found the brown coloured object in the bag of the accused.

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11. In his evidence PW6, Amarjyoti Bailung, the informant narrated that on 06.09.2016 he visited Gohain Hotel on receipt of the information that a Bolero vehicle arrived there with drugs. He narrated that on receipt of the information he made an entry in the general diary of the police station and rushed to the

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hotel with other police personnel. He further narrated that in the hotel he found the accused persons and recovered drugs from the possession of the Lady accused. He also narrated that he was duly authorised to conduct the enquiry. He also narrated that he measured the suspected drugs and he also exhibited the seizure list and his signature therein which have been marked as Exhibit 1, 2, and 3 and Exhibit 1(2), 2(3) and 3(4) respectively. He also exhibited the sketch of the place of incident prepared by him and the FIR which have been marked as exhibit 5 and 6 respectively. During his cross-examination he stated that the seizure lists are prepared by him. He admitted that he did not seize the purse from which the suspected drugs were recovered. He also stated that no written authority was given to him.

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12. In his evidence PW7, Sri. Gajendra Nath Deka, the Director of the FSL narrated that on 08.09.2016 he received a parcel in connection with the Sonarl PS case No.153/2016 for examining its contents. He further narrated that he found 5 gms of brown coloured powdered substance in the sealed envelop which was marked by him as Ops bN-411/2016 and he narrated that on examination, the exhibit DN-411/2016 gave positive test for Heroin and the percentage of Heroin in the exhibit was found to be 7.94. He further narrated that the report was forwarded to the S.P. Charaideo and he also exhibited the report prepared by him and his signature therein which have been marked as Exhibit 7 and 7(1) respectively. During his cross-examination he stated that the percentage of Heroin was 7.94 and he stated that he has not given any comment regarding other substances.

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13. The PW-8 Sri. Amrit Kalita, the investigating officer narrated that on 06.09.2016 an FIR was lodged by Sri. Amarjyoti Bailung alleging recovery of drug. He narrated that he was entrusted to investigate into the case and during

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the investigation he visited the place of occurrence, recorded the statement of witnesses. He also narrated that the seized drug were produced before the Special Court and samples were sent to the FSL. He also exhibited the sketch prepared by him as well as the charge-sheet which have been marked as Exhibit 9 and 10 respectively. During his cross-examination he stated that the FIR was received on 06.09.2016 at about 3:30 PM and the Drug were recovered at about 11.30 AM. he also narrated that along with the FIR authorisation letter was not submitted by the informant. he stated that the did not record the statement of seizure witnesses.

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14. Mr. R.P. Sharma, learned Senior Counsel for the appellant has assailed the impugned judgment primarily on the ground that there has been total noncompliance with Section 42 of the NDPS Act, as also the fact that none of so called independent seizure witnesses have supported the factum of seizure claimed by the prosecution.

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15. At this stage, it would be apposite to recollect the relevant portion of Section 42 of Sub-section 2 of the NDPS Act which is as follows:-

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“(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”

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16. It is by now settled that although strict compliance with Section 42 of the NDPS Act may not be required, it has to be substantially complied with and total non-compliance would made the prosecution case suspect.

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17. In Karnail Singh and Anr Vs. State of Haryana reported in (2009) 8 SCC 539 it was held as follows:

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“17.(d) While total non-compliance of requirements of subsections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.”

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18. A bare perusal of the evidence would show that the P.W.6 who is the officer who received the information and made the GD entry, no where stated in his evidence that he had communicated the said information, said to have been taken down in the form of a GD entry, to his immediate official superior. Furthermore, the GD entry said to have been made by the P.W.6 has also not been exhibited. None of the other witnesses have made even a whisper with regard to the aforesaid fact.

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19. Under the circumstances, it must be held that there has been total noncompliance with the provisions of Section 42 of the NDPS Act rendering the alleged recovery suspect, more so in view of the independent witnesses not

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supporting the factum of recovery from the person of the accused/appellant.

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20 . However, what is of greater import primary in the instant case is that neither the bulk of the seized article (original evidence) nor any sample thereof has been adduced in evidence after following the procedure prescribed by Section 52(A) of the NDPS Act, or even otherwise as would be evident from the list of exhibits available on record.

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21. In Bharat Ambale vs. The State of Chattisgarh reported in 2025 INSC 78 , it has been laid down by the Apex Court as follows:-

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“37.Section 52Asub-section (4) should not be conflated as a rule of evidence in the traditional sense, i.e., it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of ‘Primary Evidence’ or ‘Best Evidence’ is now well settled. In order to prove a fact, only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52Ato bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence, provided they have been certified by a magistrate in substantial compliance of the procedure prescribed. This, however, does not mean that where Section 52Ahas not been complied, the prosecution would be helpless, and cannot prove the factum of possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery etc.

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What Section 52Asub-section (4) of the NDPS Actdoes is it creates a new form of primary evidence by way of a deeming fiction which would be on par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e., through such certified inventory, photographs or samples such that all other material are said to be excluded from the ambit of ‘evidence’, rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52Aof the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence”.

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22. Learned Addl. P.P. upon a close scrutiny of the record has fairly conceded that there does not appear to have been compliance with the provisions of Section 52 (A) of the NDPS Act and whatever action was taken by the I.O. in this regard has not been brought on record by way of evidence during the trial and that the bulk of the seized drugs nor any sample thereof was produced before the court. Thus the best evidence of the case was witheld by the prosecution.

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23. Therefore, what transpires from the above is that the learned trial Court proceeded to convict the accused/appellant without having either the bulk of the seized contraband is the Primary Evidence or the samples thereof produced before it at the trial in terms of Section 52(A) of the NDPS Act. The independent witnesses have clearly stated that they have not seen the police recovering the drugs from the possession of the accused/appellant. Under the circumstances,

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relying solely on the testimony of the police officials to convict the accused/appellant of such a serious offence carrying harsh penalty is, in the view of this Court, quite unsafe, to say the least, which was observed by the Apex Court in State of Govt. of NCT of Delhi Vs Sunil: (2001)1 SCC 652 relied upon by the learned trial Court is that the court cannot start with the presumption that the police records are untrustworthy but if the court has any good reason to doubt their truthfulness, absence of independent witnesses is a fact to be taken into account. Total non-compliance of Section 42 and 52 A of the NDPS Act, alongwith non-production of the recovered substance or any sample thereof before the Court at the trial and the fact that the proper chain of custody of the drugs from the time and place of recovery till the same or sample thereof was received by the FSL are certainly factors that ought to have led the Court to doubt the veracity of the police version of recovery and therefore to insist upon independent corroboration, which was absolutely lacking in the instant case.

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24. In view of the aforesaid discussion and for the reasons indicated herein above, the impugned judgment and sentence cannot be sustained and is accordingly set aside and the appeal stands allowed . The appellant be set at liberty forthwith.

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JUDGE

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Gita Bonia v. the State of Assam and Anr.

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