Tripura HC Sets Aside NDPS Acquittal, Faults Trial Court for Closing Evidence Without Examining IO
The High Court of Tripura held that a trial court cannot acquit an accused under the NDPS Act merely because the Investigating Officer failed to appear, and remanded the matter for fresh trial at Khowai.
A Division Bench of the High Court of Tripura, comprising Justice Dr. T. Amarnath Goud and Justice S. Datta Purkayastha, set aside the acquittal of Jammu Baig in a case involving the seizure of 292 kilograms of dry ganja from a multi-axle trailer on NH-08. The Special Judge, Court No. 2, Khowai District, had acquitted Baig on 19 May 2025, citing non-production of the Malkhana Register, non-compliance with Sections 52A(2) and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and the prosecution's failure to prove the chain of custody. The High Court found that the trial court had committed an error in law by closing prosecution evidence without taking steps to secure the attendance of the Investigating Officer, and remanded the matter for a fresh trial.
Seizure on NH-08 and the Case Before the Trial Court
On 8 March 2022, SI Rathindra Debbarma and police staff were conducting vehicle checking at Salbagan on NH-08, the Assam-Agartala road. At around 11:45 hours, they detained a multi-axle trailer bearing registration number RJ-51-GA-0392, travelling from Teliamura towards Ambassa. On checking, two boxes hidden under the trailer were found to contain 30 brown-coloured packets of suspected dry ganja weighing 292 kilograms.
The seizure was made in the presence of the Officer-in-Charge of Mungiakami Police Station and the SDPO, Teliamura. The respondent Jammu Baig, the driver, and one Mukesh Singh, the co-driver, were arrested. A suo-moto complaint was lodged, registered as Mungiakami PS Case No. 7 of 2022, under Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act.
After investigation, a charge sheet was filed. The trial court took cognizance, framed charges, and the accused pleaded not guilty. The prosecution examined ten witnesses and exhibited documents. After the prosecution closed its evidence, the accused was examined under Section 313 of the Code of Criminal Procedure and denied all incriminating material. The Special Judge then acquitted Baig, holding that the Malkhana Register had not been produced, that Sections 52A(2) and 57 of the NDPS Act had not been complied with, and that the prosecution had failed to prove the chain of custody from seizure to forensic examination.
The State's Challenge and the Respondent's Defence
The State of Tripura, represented by Public Prosecutor Mr. Raju Datta, challenged the acquittal in Crl. A. 53/2025. The PP submitted that the dry ganja was seized under a proper seizure list and deposited in the District NDPS godown under Malkhana Register No. 250. The Malkhana Register could not be exhibited because the Investigating Officer (IO) of the concerned police station could not be examined, and the trial court closed evidence without affording the prosecution an opportunity to examine the IO. The PP further submitted that a detailed report under Section 57 of the NDPS Act was submitted to the SP, Khowai, on 9 March 2022, and that there was no violation of Sections 52A(2), 42, or 57 of the Act. The PP relied on the Supreme Court's decisions in Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452, and Kailas v. State of Maharashtra, 2025 SCC OnLine SC 1977, on procedural provisions under Section 52A, and on State of Rajasthan v. Sahi Ram, (2019) 10 SCC 649, on the production of seized articles before court.
Mr. S. Lodh, appearing for the respondent, argued that the trial court had rightly closed prosecution evidence given the prosecution's total failure to secure the IO's attendance. He contended that the Malkhana Register annexed to the memo of appeal was never produced before the trial court and was full of lacunae, that no application for additional evidence had been filed, that the chain of custody had not been established, and that there were serious discrepancies in the depositing and re-depositing of the contraband. He relied on Central Bureau of Investigation v. Shyam Bihari & Ors., (2023) 8 SCC 197; Mohammed Khalid & Anr. v. State of Telangana, (2024) 5 SCC 393; Karnajit Das v. State of Tripura, Crl. A(J) 29 of 2023; and Ebadul Islam v. Rajjib Hossain @ Rajib & Ors., Crl. L.P. 4 of 2024.
Whether Section 52A and Section 57 Were Complied With
The Division Bench examined the record in detail. On 8 March 2022, the IO prepared an inventory of the seized articles on the same day. On 9 March 2022, pursuant to a court order, the seized articles were produced before the Judicial Magistrate, 1st Class, Khowai, on 11 March 2022. Photographs were taken in the Magistrate's presence, and the packets were sealed under the Magistrate's gala and seal. Representative samples were kept in yellow-coloured packets under the Magistrate's seal, marked as Exhibits A and B. The remaining contraband was deposited in the District NDPS store. On 15 March 2022, through a forwarding letter from the SDPO, Teliamura, the samples were sent to the State Forensic Science Laboratory (SFSL), Narsinghar. The SFSL report was received on 20 May 2022. On 8 June 2022, the Special Judge directed the IO to dispose of the remaining seized contraband through the Drug Disposal Committee under Section 52A. The Chairman of the State Drug Disposal Committee issued a certificate of destruction dated 10 August 2022.
The court reproduced Section 52A of the NDPS Act, which provides a mechanism for disposal of seized narcotic substances before the conclusion of trial, given risks of theft, deterioration, and storage hazards. It allows authorised officers to prepare an inventory, take photographs, and draw representative samples in the presence of a Magistrate, with those certified documents and samples admissible as primary evidence.
On Section 57, the court found that the OC of Mungiakami PS submitted a detailed report of the arrest and seizure to the SP, Khowai, on 9 March 2022 — within 48 hours of the seizure on 8 March 2022 — satisfying the statutory requirement.
On Section 42, the court noted that SI Debbarma was on patrol duty when he received information about the suspected ganja. He immediately informed the OC and SDPO over mobile phone, which was recorded in Mungiakami PS GDE No. 12, dated 8 March 2022. The court found that when information calls for immediate action, the officer recorded it in writing and informed his superior without delay, and that the search and seizure followed the mandates of the NDPS Act. The court concluded: “no inference could be drawn that there has been violation of Section 42 of Act.”
Non-Production of the Malkhana Register: Not Fatal
The trial court had acquitted Baig partly on the ground that the Malkhana Register was not produced. The High Court held that non-production of the Malkhana Register is not necessarily fatal to the prosecution's case.
The court traced the movement of the contraband through the evidence of prosecution witnesses. PW-1 stated that after seizure, the items were taken to the police station. PW-5, the in-charge of the District NDPS godown, was present when the packets were produced before court and re-deposited. PW-8 stated during cross-examination that he sent the samples to SFSL on 15 March 2022. PW-9 deposed that on 11 March 2022, the contraband was withdrawn under MR No. 250 and re-deposited in the NDPS godown. The SFSL report confirmed that the yellow-coloured parcel received was sealed with eight wax seals bearing the impression of the SDPO, Teliamura, showing the seals were intact on receipt.
The court found that the samples were drawn before the Judicial Magistrate, 1st Class, kept intact under seal and gala, sent to SFSL under seal, and received intact. There was no opportunity to tamper with the seal. The defence had not challenged the authenticity of depositing the case property with the Malkhana in cross-examination of any prosecution witness. The court held that the prosecution had proved the seized items remained safe and un-tampered from the moment of seizure until they reached the forensic laboratory, and that the respondent was not entitled to any benefit from the non-production of the Malkhana Register.
The Trial Court's Error in Closing Evidence
The central finding of the Division Bench concerned the trial court's decision to close prosecution evidence without securing the IO's testimony. PW-2, Goutam Debbarma, was the IO of the case. His non-examination left the seizure lists and the Malkhana Register unproved, since the IO is the most crucial witness to establish the chain of custody.
The court held that a court cannot automatically acquit an accused under the NDPS Act merely because witnesses did not appear. Courts possess the power to compel attendance through summons, bailable warrants, and non-bailable warrants. The court observed that while it is primarily the prosecution's responsibility to file an application for securing witness evidence, the court itself has overriding powers to summon any witness if the evidence is essential for justice. The trial court had taken none of these steps.
The bench also identified a separate failure: the inventory, photographs, and list of samples certified by the Judicial Magistrate, 1st Class, Khowai, were lying in the record but the prosecution took no steps to prove those documents into evidence during trial. The IO had not even cited the Judicial Magistrate as a witness. Under Section 52A(4) of the NDPS Act, those certified documents are to be treated as primary evidence. The court observed that in such a serious offence, it was “quite unfortunate that proper steps were not taken” by the IO and the prosecution. The Special Judge had also missed this aspect, despite having ample authority to summon the required witness.
The court concluded that the trial court had committed an error in law in acquitting the accused-respondent without securing the evidence of the remaining prosecution witnesses, and that the prosecution should be given an opportunity to prove those documents into evidence.
Order
The Division Bench set aside the judgment dated 19 May 2025 passed by the Special Judge, Court No. 2, Khowai, in Special (NDPS) 64 of 2022. The matter was remanded to the Special Judge (NDPS), Khowai, with a direction to conduct a fresh trial by calling upon the remaining prosecution witnesses.
The court directed that reasonable opportunity be afforded to prosecution witnesses to depose and that un-exhibited documents be taken on record. The prosecution was given liberty to file an application for summoning the concerned witnesses to prove the inventory, photographs, and list of samples certified by the Judicial Magistrate. The defence was given liberty to adduce rebuttal evidence on that point. After closure of all prosecution evidence, the trial court was directed to deliver a fresh judgment. The entire exercise was directed to be completed expeditiously.
The accused-respondent Jammu Baig was directed to surrender before the trial court on or before 15 June 2026. Upon surrender, the trial court was directed to consider his bail application on such terms and conditions as were applicable when he was released after the trial court judgment.