Introduction:

The Gauhati High Court has once again emphasised that prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985 cannot succeed merely because a substantial quantity of contraband is alleged to have been recovered. Given the severe punishments prescribed under the NDPS Act, the prosecution is required to establish the recovery, seizure, sampling and preservation of the alleged contraband through reliable evidence and in accordance with the statutory safeguards. Where foundational procedural requirements are ignored and the evidence surrounding the seizure itself becomes doubtful, the resulting conviction cannot be sustained.

In Hobiqul Islam v. State of Assam and Nijut Bormoholia v. State of Assam, arising out of Criminal Appeal No. 144 of 2026 and Criminal Appeal No. 192 of 2023, Justice Mridul Kumar Kalita of the Gauhati High Court examined the legality of the conviction of two accused persons under Section 20(b)(ii)(C) of the NDPS Act. The appellants had been convicted by the Sessions Court for offences involving commercial quantity of cannabis and were sentenced to rigorous imprisonment for ten years each, along with a fine of ₹1 lakh each.

The High Court, however, found serious deficiencies in the prosecution case. Most significantly, the witnesses shown as seizure witnesses did not support the prosecution’s claim that the contraband had been recovered in their presence. Their testimony revealed that their signatures on seizure documents had been obtained either at the police station or at their respective residences. Some witnesses admitted that they had never even gone to the alleged place of recovery.

The Court also found that the prosecution had failed to follow the procedure contemplated under Section 52A of the NDPS Act concerning the preparation of inventory and the handling of seized narcotic substances. No inventory of the seized contraband was prepared in the manner required by law, the seized ganja was not produced before the trial court, and the records did not show that samples were drawn in the presence of a Magistrate. Instead, the material indicated that samples were drawn at the police station.

These failures assumed particular importance because the prosecution case involved allegations of recovery of approximately 105 kilograms of suspected cannabis from two different locations. The first alleged recovery involved about 30 kilograms of suspected ganja from a vehicle intercepted during naka checking. The second alleged recovery involved about 75 kilograms of suspected ganja from a residence, allegedly on the basis of information provided by the appellants.

The prosecution case began with information allegedly received by the police regarding transportation of ganja. Acting upon this information, the police organised naka checking and intercepted a vehicle in which the appellants were travelling. During the search, approximately 30 kilograms of suspected cannabis was allegedly recovered from the vehicle.

The prosecution further claimed that the appellants provided information leading to the discovery of another quantity of approximately 75 kilograms of suspected cannabis from a residence. Following the alleged recoveries, investigation was carried out and a charge-sheet was filed against the appellants for an offence under Section 20(b)(ii)(C) of the NDPS Act, which deals with offences relating to cannabis involving commercial quantity.

The trial court accepted the prosecution case and convicted both appellants. They were sentenced to ten years’ rigorous imprisonment and a fine of ₹1 lakh each. Considering the quantity allegedly recovered, the prosecution treated the case as one involving commercial quantity, thereby attracting the stringent punishment framework under the NDPS Act.

The appellants challenged the conviction before the Gauhati High Court. Their appeal raised questions not only about the credibility of the alleged recovery but also about the integrity of the entire evidentiary chain connecting the seized substance with the samples examined and ultimately relied upon by the prosecution.

The legal significance of the case lies in the nature of NDPS prosecutions. The Act prescribes exceptionally severe penalties, particularly where commercial quantities are involved. It also contains provisions that impose stringent restrictions in matters such as bail. For this reason, courts have consistently stressed that procedural safeguards relating to search, seizure, sampling and disposal of narcotic substances cannot be treated as meaningless technicalities.

A conviction under the NDPS Act must rest upon legally reliable evidence establishing, beyond reasonable doubt, that the accused was connected with the contraband alleged by the prosecution. The prosecution must be able to demonstrate that the substance allegedly recovered was properly seized, that the samples tested were genuinely drawn from that seized substance and that the chain of custody remained intact.

This becomes even more important when the physical contraband is not produced before the trial court. In such circumstances, the prosecution must place before the court reliable statutory and documentary material explaining the preparation of inventory, the sampling process and the ultimate disposal or handling of the seized substance.

The present case, according to the High Court, revealed serious gaps at precisely these stages. The seizure witnesses failed to establish that they had actually witnessed the recovery. The inventory was not prepared in terms of Section 52A. There was no material showing that samples were drawn before a Magistrate. The seized contraband itself was not produced at trial, leaving an unanswered question as to what ultimately happened to it.

The High Court therefore concluded that the prosecution’s case had been fundamentally weakened by the failure to establish the alleged recovery through reliable and legally compliant evidence. In a statute carrying such severe consequences, the Court held that procedural lapses could not simply be overlooked.

Arguments of the Parties:

The appellants strongly challenged the prosecution’s version of the alleged seizure and argued that the trial court had convicted them despite the absence of reliable evidence proving the recovery of the contraband from their possession.

A principal contention was that the alleged seized ganja had never been produced before the trial court. The appellants argued that the prosecution had also failed to prepare and exhibit an inventory of the seized substance. As a result, there was no satisfactory evidentiary basis to establish the identity and continued existence of the alleged contraband said to have been recovered from the vehicle and the residence.

The appellants further questioned the process by which samples were drawn and preserved. They argued that the prosecution had not produced any material to demonstrate that the samples were drawn in the presence of a Magistrate or that the statutory procedure governing the preparation and certification of inventory and samples had been followed.

According to the appellants, the evidence instead indicated that the samples were drawn at the police station. This, they contended, created serious doubt regarding the authenticity and integrity of the samples subsequently relied upon by the prosecution. Without a reliable procedure demonstrating the connection between the alleged seized substance and the tested samples, the prosecution could not establish the essential chain of custody.

The appellants also placed considerable reliance on the testimony of the seizure witnesses. These witnesses, who were expected to provide independent support to the prosecution’s claim of recovery, did not confirm that the seizure had taken place in their presence.

One of the seizure witnesses stated that he could not say what had been written in the documents on which his signature was obtained. Another witness stated that his signature on the seizure list was taken at his residence and that he had not gone to the place from which the ganja was allegedly recovered.

A third witness admitted that his signatures were obtained at the police station rather than at the alleged place of seizure. Another seizure witness also stated that he had not gone to the place where the recovery was claimed to have occurred.

The appellants argued that these admissions struck at the very foundation of the prosecution case. A seizure witness is expected to support the prosecution’s assertion that the search and recovery actually took place in the manner recorded in the seizure memo. If witnesses admit that they did not see the recovery and merely signed documents elsewhere, their signatures cannot by themselves prove that the seizure occurred as alleged.

The appellants also argued that the prosecution had failed to establish conscious possession through evidence free from doubt. In a prosecution under Section 20(b)(ii)(C), the prosecution must first establish the foundational facts of recovery and possession before the stringent consequences of the NDPS Act can be applied. According to the appellants, where the recovery itself remained unproved, the conviction could not survive.

The State, on the other hand, defended the conviction and submitted that the trial court had relied upon credible ocular evidence. The prosecution contended that the oral testimony of its witnesses established the interception of the vehicle, the recovery of the suspected cannabis and the involvement of the appellants.

The State maintained that the evidence, when considered as a whole, supported the finding that the contraband had been recovered and that the appellants were in conscious possession of it. The prosecution therefore argued that the trial court had correctly convicted the appellants.

The State’s position was essentially that the prosecution evidence should not be discarded merely because some seizure witnesses did not fully support the prosecution case. According to this approach, the testimony of police and other prosecution witnesses could establish recovery if found credible by the court.

However, the High Court was required to assess not simply whether there was some oral evidence supporting the prosecution, but whether the statutory and evidentiary safeguards had been sufficiently followed in a case carrying the possibility of ten years’ rigorous imprisonment and substantial monetary penalties.

The dispute therefore centred on the quality and reliability of proof. The appellants argued that the prosecution’s case suffered from multiple connected defects: doubtful seizure witnesses, absence of a legally prepared inventory, lack of proof of sampling before a Magistrate, non-production of the seized contraband and failure to establish an uninterrupted chain of custody.

The State argued that the conviction could nevertheless be sustained on the basis of the oral and ocular evidence led by the prosecution.

The High Court ultimately found that the cumulative effect of the procedural and evidentiary deficiencies could not be ignored.

Court’s Judgment:

Justice Mridul Kumar Kalita allowed the criminal appeals and set aside the conviction and sentence imposed by the Sessions Court. The Court held that the prosecution had failed to establish the alleged recovery and seizure of the contraband from the possession of the appellants through reliable evidence.

The first major weakness identified by the Court concerned the testimony of the seizure witnesses. The trial court had accepted the prosecution case regarding seizure, but the High Court found that the evidence of the witnesses did not support such a conclusion.

The Court examined their testimony and noted that none of the seizure witnesses had been able to prove the fact of recovery and seizure from the appellants. The significance of this finding was substantial because the prosecution had relied upon these witnesses to establish that the alleged recovery was carried out in a transparent and legally verifiable manner.

The evidence, however, revealed that the witnesses had not actually seen the seizure in several instances. One witness was unable to explain the contents of the documents on which his signature had been taken. Another stated that his signature had been obtained at his residence and that he had not visited the alleged place of recovery. A further witness admitted that his signature was taken at the police station and not at the place where the contraband was allegedly seized.

The Court also noted the evidence of another witness who had not gone to the place of seizure. Taken together, these statements made it impossible to treat the seizure documents as independent proof that the recovery had occurred in the manner claimed by the prosecution.

Justice Kalita therefore concluded that the trial court had erred in treating the seizure as established despite the actual testimony of the seizure witnesses. The Court’s approach reflects an important evidentiary principle: the mere presence of signatures on a document does not automatically prove the truth of the transaction recorded in that document, particularly when the persons signing it deny having witnessed the relevant event.

The Court next examined the failure to comply with Section 52A of the NDPS Act. This provision is designed to regulate the handling and disposal of seized narcotic drugs and psychotropic substances. Given the practical difficulties associated with retaining large quantities of contraband, the statute provides a procedure involving the preparation of an inventory and the certification of relevant material by a Magistrate.

The procedure serves an important evidentiary purpose. It helps ensure that the substance represented before the court, or the samples taken for forensic examination, can reliably be connected with the substance allegedly recovered from the accused.

In the present case, the High Court found that no inventory had been prepared in accordance with Section 52A. The Court also found no material indicating that samples were drawn in the presence of a Magistrate. Instead, the record suggested that the samples were drawn at the police station.

The seized contraband itself was also not produced before the trial court. This raised a serious question concerning its handling after the alleged seizure. The Court observed that the record did not provide a satisfactory explanation of what had happened to the seized substance.

This was not treated as a minor irregularity. The Court held that the procedure prescribed under Section 52A had not been followed at all by the investigating agency.

The Court emphasised that the NDPS Act imposes severe punishments and, therefore, the procedural requirements built into the statutory framework must be strictly observed. Where such safeguards are ignored, the prosecution case may be materially weakened, and the accused is entitled to the benefit arising from those lapses.

This reasoning is rooted in a broader principle of criminal jurisprudence. The severity of a punishment does not reduce the prosecution’s burden of proving its case. On the contrary, where legislation provides harsh consequences, courts are expected to carefully scrutinise whether the statutory safeguards protecting the fairness and reliability of the investigation have been followed.

The High Court did not suggest that every procedural irregularity automatically requires an acquittal. The legal effect of a lapse must depend upon its nature and its impact on the prosecution case. However, the deficiencies in the present matter were neither isolated nor inconsequential.

The prosecution failed to establish a reliable seizure through its independent witnesses. The witnesses either did not know the contents of the documents they signed or admitted that they had signed them away from the alleged place of recovery. The statutory inventory procedure was not followed. The record did not establish that samples were drawn in the presence of a Magistrate. The seized contraband was not produced during trial. The chain connecting the alleged seizure with the samples relied upon by the prosecution was therefore left seriously uncertain.

When these circumstances were considered together, the Court held that the prosecution had failed to meet the standard necessary to sustain a conviction under the NDPS Act.

The Court specifically observed that where mandatory procedural safeguards are disregarded in a prosecution under a stringent penal statute, the resulting lapse dents the prosecution case and may entitle the accused to the benefit of doubt.

The High Court consequently held that the conviction and sentence imposed by the trial court were not sustainable. It found that the trial court had committed an error in convicting the appellants under Section 20(b)(ii)(C) despite the failure of the prosecution to prove the foundational facts of recovery and seizure in accordance with reliable evidence and statutory procedure.

The appeals were accordingly allowed. The impugned judgment of conviction was set aside, and both appellants were acquitted of the offence charged against them.

The Court further directed that the appellants be released forthwith if they were not required to be detained in connection with any other case.

The judgment carries an important message for investigating agencies and trial courts dealing with NDPS prosecutions. The seriousness of an allegation involving narcotic substances cannot justify a relaxation of legal safeguards. Criminal procedure is not a formality that can be ignored once a substantial quantity of contraband is allegedly recovered.

The prosecution must establish the complete evidentiary journey of the alleged substance. It must prove that the recovery actually occurred, that the persons shown as seizure witnesses genuinely witnessed the process, that the substance was properly documented and preserved, that samples were drawn through a legally reliable procedure and that the samples tested by the forensic laboratory were connected to the substance allegedly recovered from the accused.

Where these essential links are missing, a forensic report by itself may not cure the defects. The report may establish the nature of the sample examined, but the prosecution must still establish that the sample originated from the specific contraband allegedly recovered from the accused.

The decision also reinforces the importance of independent seizure witnesses. Their role is not merely to provide signatures that can later be attached to seizure documents. Their presence is intended to lend transparency and credibility to the recovery process. When such witnesses testify that they never saw the recovery and that their signatures were obtained later at a police station or residence, the prosecution must confront the resulting doubt with convincing evidence.

Ultimately, the Gauhati High Court’s ruling upholds the basic principle that criminal convictions cannot rest on assumptions, procedural shortcuts or documents unsupported by the evidence of the persons associated with them. The NDPS Act may be stringent, but its severity makes faithful compliance with its procedural safeguards even more essential.

The acquittal in the present case does not dilute the seriousness of narcotics offences. Instead, it reinforces that effective enforcement and due process must operate together. A legally sustainable conviction requires not only proof that an offence was alleged, but proof that the investigation was conducted and the evidence preserved in a manner that permits the court to safely conclude, beyond reasonable doubt, that the accused committed the offence.