Mahidul Islam vs The State Of Assam

GAHC010102792024


2026:GAU-AS:15902


IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI

Criminal Appeal No. 233/2024

Mahidul Islam,
S/o Nasir Miah Sarkar,
Resident of Maharani Hirapur,
PS-Radha Krishorpur, Dist.-Gomati,
State-Tripura, Pin-799205.
…… Appellant .
-Versus-
State of Assam,
Represented by P.P., Assam.
…… Respondent .

For the Appellant : Mr. M.M. Rahman.
……Advocate.

For the Respondent : Mr. B. Sarma, Addl. P.P.
……Advocate.

BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN

Date(s) of Hearing :- 10.09.2026

Date on which judgment is reserved :- 10.09.2026

Date of pronouncement of judgment :- 16.10.2026

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Whether the pronouncement is of the
operative part of the judgment?
:- N/A

Whether the full judgment has been
pronounced?
:- Yes

JUDGMENT AND ORDER
Heard Mr. M.M. Rahman, learned counsel for the appellant and also
heard Mr. B. Sarma, learned Additional Public Prosecutor, Assam,
appearing for the State respondent.
2. This appeal under Section 374(2) of the Code of Criminal
Procedure, is directed against the judgment and order of conviction and
sentence dated 26.02.2024, passed by the learned Special Judge (Addl.),
Dhubri, in Special Case No.115/2023. It is to be noted here that vide
impugned judgment and order dated 26.02.2024, the learned Special
Judge (Addl.), Dhubri (Trial Court hereinafter), has convicted the
appellant under Section 20(b)(ii)(C) of the NDPS Act and sentenced him
to suffer rigorous imprisonment for 10 years and also to pay a fine of
Rs.1,00,000/- with default stipulation.
3. The background facts leading to the filing of the present appeal are
briefly stated as under:-
“On 19.01.2023, S.I. Shahjahan Ali Ahmed of Golakganj P.S.,
lodged one FIR with the Officer-in-Charge, Golakganj P.S. to the
effect that on 19.01.2023, at about 7:30 p.m., while he was
attending naka checking duty at Nandinipar on NH-31 along with
th
WSI(P) Sima Chetry, ½ Section of 4 APTF party and one section
th
of 48 Bn CRPF party, then at about 8:40 p.m., a 4-wheeler
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vehicle, bearing Registration No.AS-23K-6256, which was coming
from Gouripur side in a very high speed towards West Bengal and
they did not stop, though signal was given for stopping the same,
and while the driver suddenly turned the car towards Golakganj,
then collided with the police vehicle, bearing Registration No.AS-
30-8827 and caused damage to the same, and 5 packets that were
wrapped in plastic tap had fallen from the broken body of the
vehicle, bearing Registration No.AS-23C-6256, due to accident and
the same were suspected to be cannabis.
Then, at the same time, another car, bearing Registration
No.AS-23K-4199, which was coming in the same direction by
following the previous car also detained. Then the driver of both
the vehicles and two other accompanying persons were
apprehended. Then the informant had reported the matter to the
higher authorities over phone and then he started formalities under
Section 42(2) of the NDPS Act and as there was not enough light at
the place and both the vehicles had carried a lot of suspected
cannabis hidden inside its body and needed a skill person to open
the body of the vehicle Nos.AS-23C-6256 and AS-23K-4199, he had
informed the matter to the higher authorities, and as per
suggestion of the higher authority, he had lifted both the vehicles
to the Golakganj Police Station, driven by one driver, namely, Raju
Choudhury and three persons who were present at the place of
occurrence were requested to become witnesses and accordingly,
in presence of independent witnesses at Golakganj P.S., the skilled
persons, namely, Biswajit Roy and Nur Islam Sk, were asked to
open those vehicles and thereafter, by opening those vehicles, lot
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of packets wrapped in plastic tap were found from both the
vehicles and by weighing and counting it is found that 35.126 kgs
in 89 packets were recovered from the body of the vehicle, bearing
Registration No.AS-23C-6256 and 31.773 kgs in 88 packets were
recovered from the body of the vehicle, bearing Registration
No.AS-23K-4199 and in total 66.899 kgs in 177 packets and
videograph the said formalities and the suspected cannabis and the
two vehicles were seized in presence of witnesses.
Upon the said FIR, the Officer-in-Charge, Golakganj P.S.
registered a case, being Golakganj P.S. Case No.27/2023, under
Section 20(C) of the NDPS Act and Section 279 IPC, read with
Section 3 of the Prevention of Damage to Public Property Act, 1984
and WSI(P) Aparna Talukdar was endorsed to investigate the case.
The I.O. then visited the place of occurrence, examined the
witnesses and collected sample and forwarded the same to the FSL
and thereafter, collected the same and arrested accused Mahidul
Islam and forwarded him to the Court and since three other
persons were juvenile, their cases were splitted up and forwarded
to the Juvenile Justice Board for trial. Thereafter, on completion of
investigation, the I.O. laid charge-sheet, being Charge-Sheet
No.170, dated 30.04.2023, under Section 279 IPC, Section 20(c) of
NDPS Act read with Section 3 of the Prevention of Damage to
Public Property Act and the other three accused were one Rabul
Miah, Rakib Hosen and Oyashim Hussain, whose cases were
forwarded to the Juvenile Justice Board, Dhubri.
Thereafter, hearing the learned counsel for both the parties,
the learned Trial Court had framed charge against the accused
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Mahidul Islam, under Section 279 IPC, Section 20(C) of NDPS Act
read with Section 3 of the Prevention of Demage to Public Property
Act and on being read and explained over, the accused pleaded not
guilty to the same.
Thereafter, the prosecution side has examined seven
witnesses and one more witness was examined as Court witness.
Thereafter, the learned Trial Court has examined the accused
under Section 313 Cr.P.C. and then hearing arguments of both
sides, found the accused Mahidul Islam guilty of the offence under
Section 20(c) of the NDPS Act and sentenced him as aforesaid and
acquitted him of the other offences, being Section 279 IPC and
Section 3 of the Prevention of Damage to Public Property Act.”
4. Being aggrieved, the appellant approached this Court by filing the
present appeal on the following grounds:-
(i) The accident took place due to wrong signal given by police.
(ii) The Investigating Officer, though produced one pendrive containing
the videography, but the said fact that the pendrive contained the
videography has not been mentioned in the charge-sheet and the
camera also was not produced before the Court.
(iii) The name of the appellant did not find mention anywhere and the
name of the police person also not mentioned.
(iv) In the authorization letter, the name of the appellant was reflected
as pedestrian instead of a driver and in fact, the informant Police
Officer was not clear as to who was the actual driver of the
offending vehicle.
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(v) The PW-2 Mokbul Hoque has not supported the prosecution case.
(vi) The I.O. never investigated who is the owner of the vehicle and
Ganja and failed to find out the mastermind of the plan and also
failed to find out from where they had come and who had sent
them.
(vii) The prosecution side has failed to call the owner of the vehicle and
the owner of the Ganja.
(viii) The prosecution has failed to prove which accused travelled by
which of the vehicle.
(ix) The learned Trial Court has not examined any of the witnesses of
the defence. It has decided the case solely on the basis of evidence
adduced by the prosecution side.
(x) The Investigating Officer and the Trial Court have failed to find out
the actual fact that the appellant was a driver of a dumper and on
that day, one Yasuf Dev Barman and Dharman Dev Barman of
Tripura called him and other accused persons and told them that
they have sold the two vehicles to one of the purchasers at
Bakshirhat, West Bengal and they have to take the two vehicles to
Bakshirhat by driving them, for which they will be given Rs.5,000/-
per vehicle and accordingly, they had agreed to the same and they
are the only servant of their master and they are neither the owner
of the vehicle nor the Ganja.
(xi) The counsel for the appellant asked him to remain silent during his
examination under Section 313 Cr.P.C. and he is an illiterate person
and was in jail hazot for the entire trial period and he had missed
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the opportunity to defend himself and there is material
contradiction in the evidence of the witnesses and therefore, it is
contended to set aside the impugned judgment and order of
conviction and to acquit the appellant.
5. Mr. Rahman, learned counsel for the appellant has reiterated the
grounds mentioned in the memo of appeal and has also supplemented
the same by stating that there is non-compliance of Sections 42/43 of the
NDPS Act. He also submits that out of seven witnesses examined by the
prosecution, PW-2, 3 and 4 are independent witnesses, but there are
material contradiction in their versions for which no reliance can be
placed upon them, but the learned trial court having relied upon such
uncorroborated testimony, convicted the appellant herein. And as such,
the impugned judgment and order is liable to be interfered with.
5.1. Mr. Rahman has referred to following decisions in support of his
submissions:-
(i) Majem Ali @ Majom Ali vs. State of Assam [Crl.A.
,
No.125/2023, decided on 23.09.2024]
(ii) State of Punjab vs. Balbir Singh , reported in (1994)
3 SCC 299;
(iii) Sujit Nath vs. State of Assam [Bail Appln.
No.91/2024, decided on 23.04.2024]

6. Per contra, Mr. B. Sarma, learned Additional P.P. has supported the
impugned judgment and order of conviction. He submits that the PW-2, 3
and 4 have corroborated the evidence of PW-1 and though there is
contradiction in the version of PW-2, who stated that he saw falling of
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bottles from the Santro vehicle, yet in fact the same were packets. But,
this contradiction according to him, is immaterial. It is not in dispute that
4/5 fell down from the Santro vehicle after the accident and he further
pointed it out that PW-5 in his evidence categorically stated that two
persons were travelling in each of the Santro vehicle. He further submits
that Section 43 of the NDPS Act is attracted here in this case, as during
Naka checking, the vehicles were apprehended and as there was no prior
information.
6.1. Further, Mr. Sarma submits that the prosecution side has been able
to establish the case against the appellant and as such, the presumption
under Section 54 of the NDPS Act will be applicable and the learned Trial
Court has rightly drawn the same and referring to the statement of the
appellant recorded under Section 313 Cr.P.C., he submits that the
appellant has simply denied the incriminating piece of evidence, when put
to him and he failed to lead any evidence in support of his case. Further,
Mr. Sarma submits that the seizure was made at the police station and
not at the place of occurrence, since there was inadequate light and also
there was traffic congestion at the place of occurrence, which is a
National Highway and further, skilled persons were required to open the
body of the vehicle because of the accident, and under such
circumstances, Mr. Sarma has contended to dismiss this appeal.
7. Having heard the submissions of learned counsel for both the
parties, this Court has carefully gone through the memo of appeal and
the grounds mentioned therein and also perused the impugned judgment
and order of conviction dated 26.02.2024.
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8. It appears that the occurrence took place on 19.01.2023, and two
vehicles were apprehended during Naka checking at about 8:40 p.m. and
both the vehicles were Santro vehicles, bearing Registration Nos.AS-23C-
6256 and AS-23K-4199, respectively and further, it appears that the
Sentro vehicle bearing No.AS-23C-6256 has dashed against the police
vehicle, bearing Registration No.AS-30-8827, which was parked near the
Naka checking, while the driver of the vehicle No. AS-23C-6256, had
taken a U-turn suddenly and as a result, the police vehicle was damaged.
9. It also appears that the prosecution side has examined as many as
seven witnesses in support of the charges. PW-1 is the complainant
Shahjahan Ali Ahmed, who has supported the facts stated in the FIR
dated 20.01.2023. His evidence reveals that while they were attending
Naka checking at about 8:45 p.m., they found one Santro vehicle,
bearing Registration No.AS-23C-6256 coming in a very high speed and
while the police gave signal to stop the same, the driver of the said car
then suddenly took U-turn and collided with the Government vehicle and
caused damage to the same and in the process 5 packets of suspected
cannabis came out of the vehicle and fell on the ground. His evidence
also reveals that in the meantime, the second vehicle, bearing
Registration No.AS-23K-4199 also arrived there and the same was also
stopped and he reported the matter to the higher authority in compliance
with Section 42 of the NDPS Act and thereafter, he called the mechanic in
presence of witnesses and took both the vehicles to the police station and
found 35.126 kgs of suspected Ganja in 89 packets in vehicle No.AS-23C-
6256 and found 31.773 kgs of suspected cannabis in 88 packets from the
vehicle No.AS-23K-4199 and he seized the same in presence of
witnesses. His evidence further reveals that thereafter, he handed over
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the sealed packets to the Malkhana Sheristadar in presence of the
Officer-in-Charge and lodged the FIR.
9.1. The appellant cross-examined this witness, but, failed to elicit
anything tangible to discredit him. He categorically stated that search and
seizure procedure was conducted under Section 42(2) of the NDPS Act.
However, he admitted that which of the accused was travelling in which
of the vehicle was not mentioned in the FIR and he also admitted having
not submitted any certificate regarding authenticity of the pendrive and
he received the authorization on the next day of the incident and in the
authorization letter, the appellant was shown as pedestrian.
9.2. PW-2 Mokbul Hoque, PW-3 Ahadul Ali Mollah, PW-4 Nurul Hoque,
PW-5 Eliyas Rahman Sarkar, PW-6 SI(P) Aparna Talukdar and CW-1, the
Malkhana Sheristadar, ASI Guna Hari Dey also lends support to the
evidence of the P.W.1.
9.3. PW-2 Mokbul Hoque, PW-3 Ahadul Ali Mollah, PW-4 Nurul Hoque
are the seizure witnesses. They confirmed having put their signatures and
thumb impressions over the seizure list and thereby lend assurance to the
evidence of the P.W.1 in respect of seizure of the contraband substances
from the possession of present appellant. It is, however, a fact that PW-4
testified that he had seen some bottles falling from the offending vehicle
after hitting the police vehicle. But, in fact the same were packets of
Ganja and not the bottles and the said fact is apparent from the evidence
of the PW-1, the informant and PW-5 Eliyas Rahman Sarkar and PW-2
Mokbul Hoque. Thus, the contradiction so pointed out by Mr. Rahman in
the evidence of seizure witnesses are found to be insignificant and the
same failed to spell inveracity to their evidence.
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9.4. PW-6 is the Investigating Officer, who has submitted charge-sheet
against the present appellant having found a prima-facie case against
him.
9.5. PW-7 is Ms. Banashree Deka, the FSL Expert, who testified that the
sample she had examined, gave positive test for cannabis and she found
the same in sealed condition. Her evidence could not be demolished in
cross-examination.
9.6. CW-1 ASI Guna Hari Dey, is the Malkhana Sheristadar, who had
recorded relevant Entry No.12/2023, dated 20.01.2023, in the Malkhana
Register, which contains the relevant entry in connection with the
contraband substances submitted in the Golakganj P.S. Malkhana.
10. Thus, the evidence of the witnesses examined by the prosecution
side, goes a long way to establish beyond all reasonable doubt that the
contraband substances, so recovered from the two vehicles were
cannabis and the evidence of PW-7 is clear and cogent in this regard. And
further, it is well established that the accused Mahidul Islam, the present
appellant was travelling in one of the Santro vehicles and as such, the
ingredients of the offence under Section 20(c) of the NDPS Act appears
to be clearly established against him.
11. Indisputably, the occurrence took place on NH-31 at Nandinipar, on
19.01.2023, at about 8:45 p.m. during naka checking. There was no prior
information and that the alleged Ganja were found on transit and as
such, the applicable Section herein would be Section 43 instead of
Section 42.
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11.1. In this context, reference can be made to a decision of Hon’ble
Supreme Court in the case of
S.K. Raju @ Abdul Hoque @ Jagga vs.
reported in wherein it
State of West Bengal, (2018) 9 SCC 708,
has been held as under:-
“An empowered officer under Section 42(1) is
obligated to reduce to writing the information
received by him, only when an offence punishable
under the Act has been committed in any building,
conveyance or an enclosed place, or when a
document or an article is concealed in a
building, conveyance or an enclosed place.
Compliance with Section 42, including recording
of information received by the empowered officer,
is not mandatory, when an offence punishable
under the Act was not committed in a building,
conveyance or an enclosed place. Section 43 is
attracted in situations where the seizure and
arrest are conducted in a public place, which
includes any public conveyance, hotel, shop, or
other place intended for use by, or accessible
to, the public.”

12. In the instant case, as discussed herein above, the vehicles were
intercepted on the National Highway-31 at Nandinipar, which is a public
place. It is a fact that seizure was not made at the relevant place,
because of the requirement of skilled person to open the vehicles, for
which the vehicles were towed to the police station, where the skilled
persons were brought and the contraband substances were taken out
and seized in presence of witnesses. And as such, the applicable Section
here in this case would be Section 43 and not Section 42.
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13. Even then, Section 42 of the NDPS Act also appears to be complied
with as the PW-1, the informant having found the contraband
substances, being carried in the vehicle, has reported the matter to the
higher authority and the higher authority has given authority letter to the
informant.
14. Since the evidence of the prosecution witnesses and the
documents exhibited by it go a long way to establish that the appellant
was found in possession of the contraband substances, the presumption
under Section 54 of the NDPS Act is available here in this case. And in
view of the said provision, the burden has now shifted to the appellant as
held by Hon’ble Supreme Court in the case of
Noor Aga v. State of
, reported in .
Punjab and Another (2008) 16 SCC 417
14.1. But, the appellant has failed to discharge the burden and in his
examination under Section 313 Cr.P.C., he has simply denied the
incriminating circumstances, which were put to him. He had failed to
offer any explanation, let alone a plausible one, to establish, at least by
preponderance of probability, that he is not guilty of the charges. Thus,
failing to rebut the statutory presumption goes against him and it fortified
the prosecution case.
15. Thus, all these facts and circumstances go a long way to establish
beyond all reasonable doubt that the appellant is the author of the crime.
The prosecution side has succeeded in establishing all the ingredients of
the offence under Section 20(C) of the NDPS Act against the appellant
herein.
16. Thus, it also appears that the learned Trial Court has rightly arrived
at the finding and acquitted the appellant of the offence under Section
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279 IPC and also of the offence under Section 3 of the Prevention of
Damage to Public Property Act, as the prosecution side has failed to
prove beyond reasonable doubt as to who actually was driving the Santro
vehicle and then hit the police vehicle, at the relevant point of time.
17. This Court has carefully considered the submission of Mr. Rahman,
learned counsel for the appellant and also gone through decisions
referred to by him in (i) Majem Ali @ Majom Ali(supra); (ii)
, (iii) and in view of the
Balbir Singh(supra) Sujit Nath(supra)
aforementioned discussion and findings, this Court is of the view that the
decisions relied upon by him would not advance his argument.
18. It also appears that the learned court below has sentenced the
appellant to undergo rigorous imprisonment for a period of 10 years and
also to pay a fine of Rs.1,00,000/ with default stipulation for another one
year. And having regards to the nature and gravity of the offence, the
sentence, so handed down, appears to be just and reasonable and it
warrants no interference of this court.
19. In the result, this Court finds no merit in this appeal, and
accordingly, the same stands dismissed. Send down the record of the
learned court below, with a copy of this judgment and order. The parties
have to bear their own costs.

Sd/- Robin Phukan




Comparing Assistant
JUDGE
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