Judgment & Order (Cav)

1. Heard Mr. T. Deuri, learned amicus curiae appearing for the appellant. Also heard Mr. M.P. Goswami, learned Addl. P.P. Assam appearing for the State/ respondent.

2. The present appeal has been instituted by the appellant assailing the judgment and order dated 04-06-2013 passed by the learned Addl. Sessions Judge No. 1 (Special Judge), Kamrup in NDPS Case No. 257(K)/2002 convicting the appellant, herein, under Section 21(b) of the NDPS Act, 1985 and sentencing him to undergo rigorous imprisonment for 03 (three) years and to pay fine of Rs. 20,000/- (Rupees Twenty Thousand), in default to undergo further simple imprisonment for 06 (six) months.

3. The prosecution case, in brief, is that one Deva Dutta, S.I. of Police, C.I.D., Guwahati, acting on a source information received, along with a team under supervision of Inspector P. Baruah including women Constable, on 04-02-2002 at around 6:30 P.M. had intercepted an Auto rickshaw bearing registration number AS-01-K-0355 near Basistha Chariali Police Point wherein four passengers travelling namely (i) Raju Ali, (ii) Bulu Singh, (iii) Navel Pareira and (iv) Rakesh. During the search carried out in presence of witnesses, after observing all the formalities, a packet containing white powder suspected to be Heroin weighing 04 (four) grams was recovered from the wearing apparel of Raju Ali. The field test conducted at the place of occurrence had given positive test result for Heroin. The recovered Heroin was seized from the possession of Raju Ali, sample in duplicate was drawn at the spot by complying with all requisite formalities and Raju Ali was arrested. The auto rickshaw by which he was traveling was also seized in connection with the case. On being led by accused Raju Ali, the team searched the dwelling house of one Smti. M. Athing located at Pilingkata, Basistha with a view to recover Narcotic Drugs, but nothing incriminating could be recovered. However, on interrogation she had stated that one Bijoy Singh of Silchar and Anjana Devi, who were staying in Room No. 816 of Vandana Hotel at Paltanbazar area had supplied the Narcotic Drugs, which was seized from Raju Ali. Accordingly, the said CID team searched the said Room No. 816 of Vandana Hotel, Paltanbazar as per procedure and recovered 10 (ten) grams of powder like substance suspected to be Heroin kept in a polythene packet from the joint possession of Bijoy Singh and Anjana Devi, which was kept concealed under their sleeping mattress. Samples came to be drawn and sealed from the recovered substance by following the procedure prescribed. Smti. M. Athing, Smti Anjana Devi and Sri Bijoy Singh were arrested Under Section 42 of the NDPS Act, in connection with the case. Thereafter, basing on the disclosure made by Bijay Singh and Anjana Devi, the team searched room No. 2 of Hotel Sumiya located at K.C. Sen Road, Paltanbazar occupied by one Subash Singh, but no incriminating material could be recovered there-from. Subash Singh had stated before the Police that he had handed over a packet of heroin to one Oken Singh of Jatia. Accordingly, basing on the said information the team proceeded to Jatia and searched the rented house of Oken Singh, i.e. the appellant, herein, after observing due formalities and by complying with the provision of Section 50 of the NDPS Act. The search led to the recovery of 40 grams of white powder like substance, suspected to be Heroin from the possession of Oken Singh, which was kept concealed in a steel Almirah in a polythene packet inside a bag. The samples of the recovered powder like substance, suspected to be Heroin along with the steel Almirah were seized and Subash Singh and Oken Singh were also arrested after interrogation. Basing on the said recovery made, an FIR was lodged in the matter and the same was registered as CID P.S. Case No. 04/2002 under Section 21/29 of the NDPS Act. Upon conclusion of the investigation, the CID laid charge-sheet against all the arrested accused under Section 21/29 of the NDPS Act.

The learned Trial Court upon appreciating the materials coming on record proceeded to frame charge under Section 21(c) of the NDPS Act against the appellant, herein, and a charge under Section 21(a)/ 29 of NDPS Act was so framed against the accused persons, namely, Bulu Singh and Navel Perara.

The charge on being read over and explained to the accused persons, they having pleaded not guilty and claimed to be tried, a trial ensued. At this stage, it is to be noted that the other co-accused, namely, Raju Ali, Rakesh Singh, Smti. M. Athing, Smti. Anjana Devi, Sri Bijoy Singh and Bijoy Singh having not appeared after being released on bail, they were declared absconders and trial proceeded against the appellant, herein, Bulu Singh and Navel Perara.

During the trial, the prosecution side examined 09 (nine) witnesses in support of their case and thereafter, the appellant, herein, was examined under Section 313 Cr.P.C.

On conclusion of the trial, learned Trial Court basing on the evidences coming on record, proceeded to convict the appellant, herein, under Section 21(b) of the NDPS Act and sentenced him as noticed, hereinabove.

The learned Trial Court basing on the evidences coming on record, proceeded to hold that the charge framed against the other 02 (two) co-accused Bulu Singh and Naval Perara to have not been established beyond reasonable doubt and acquitted from the charges so framed against them.

Being aggrieved, the appellant has instituted the present proceeding.

4. Mr. T. Deuri, learned amicus curiae, after taking this Court through the evidences adduced by the prosecution witnesses as well as the statements made by the appellant, herein, during his examination under Section 313 Cr.P.C., has submitted that the prosecution had miserably failed to establish the fact that the Heroin purportedly seized from the rented premises of the appellant, herein, was so seized from his conscious possession. Mr. Deuri has submitted that the relevant witnesses present at the time of the purported recovery and seizure of the Heroin from the possession of the appellant, herein, were not examined during the trial by the prosecution. Mr. Deuri has further submitted that the Almirah from wherein the purported recovery of the Heroin was so made, was not produced in the court and identified by the witnesses. Accordingly, he submits that the prosecution had failed to establish the seizure of the Heroin from the possession of the appellant, herein.

5. Mr. Deuri has further submitted that the purported recovery having been made from the possession of the appellant, herein, it is seen that there was a delay of 02 (two) days in forwarding the said samples so drawn to the Forensic Science Laboratory (FSL) for examination. He submits that the prosecution had not explained as to the manner in which the said samples were maintained during the said 02 (two) days when the same was available with the Police. He submits that the doubt having arising with regard to the manner in which the said samples were so maintained by the prosecution, after the same was prepared, till it was forwarded to the FSL for examination, the said doubt would have to be answered in favour of the appellant, herein, and he would be required to be acquitted of the charge under Section 21(b) of the NDPS Act.

6. Having made the said submission, Mr. Deuri, by referring to the provisions of Section 42(1) of the NDPS Act, more particularly, the second proviso, thereto, submitted that for effecting a search of any building, conveyance or enclosed place at any time between sunset and sunrise there has to be a specific authorization to that effect obtained by the authority making such search. He further submits that when such authorization cannot be obtained, without affording opportunity for concealment of evidence or facilitating the escape of an offender, the officer concerned can carry out the search between the sunset and sunrise, however, in terms of the provisions of Section 42(2) of the NDPS Act he has to forward an information about the same to the superior officer. He submits that the PW-9, under whose leadership the search was carried out, had made the search without due authorization and it was also found that he had also not made any report after carrying out search and seizure in the rented house of the appellant to his superior officer. He submits that admittedly the search was carried out after the sunset. In support of his submission he has relied upon the decisions of the Hon’ble Supreme Court in the case of Karnail Singh Vs. State of Haryana, reported in (2009) 8 SCC 539, and Simranjit Singh Vs. State of Punjab, reported in 2023 0 Supreme(SC) 658.

7. Mr. Deuri by referring to the provisions of Sub-Section (2) of Section 52(A) of the NDPS Act, submits that the procedure prescribed, therein, for drawing samples of the recovered narcotic substance was admittedly not followed in respect of the purported recovery so made from the possession of the appellant, herein. He submits that the sample was not drawn in presence of a Magistrate and no certificate exists certifying the correctness of any list of samples so drawn. He further submits that the samples were drawn by the PW-9 at the place of the seizure itself without any reference to the Magistrate. Accordingly, he submits that the samples not having been taken in connaissance with the provision of Section 52(A) of the NDPS Act the subsequent steps taken, thereon, including the offence report filed in the matter after the sample was returned positive by the FSL authorities cannot be sustained and the conviction and sentencing of the appellant, herein, basing thereon would mandate an interference from this Court.

8. In the above premises, Mr. Deuri submits that the inconsistencies, highlighted, in the matter has the effect of vitiating the trial instituted against the appellant, herein, accordingly, the conviction of the appellant, under Section 21(b) of the NDPS Act would mandate an interference. Accordingly, the impugned judgment and order dated 04-06- 2013 would mandate interference from this Court and the appellant is entitled to be acquitted from the charge under Section 21(b) of the NDPS Act, 1985.

9. Per contra, Mr. M.P. Goswami, learned Addl. P.P. Assam submits that an analysis of the evidence adduced by the prosecution witnesses would reveal that the substance recovered from the possession of the accused was established beyond reasonable doubt to be Heroin. He further submits that evidence coming on record, establishes such recovery to be made from the conscious possession of the appellant, herein. He submits that the said recovery having been made from an Almirah kept in the tenanted premises of the appellant and he being the tenant of the said premises, it is established beyond reasonable doubt that the recovery of Heroin was clearly from the conscious possession of the appellant, herein. He submits that it cannot be accepted that the accused was not aware about the Heroin kept in the Almirah kept in his house. He submits that the plea taken by the appellant in his examination under Section 313 Cr.P.C., that the Almirah was under the exclusive possession of his wife is not acceptable. He further submits that the said plea of the appellant was not carried forward and established by way of adducing cogent and reliable evidence. With regard to the plea raised by the learned amicus curiae pertaining to the provisions of Section 42(1) of the NDPS Act, Mr. Goswami submits that the same would be attracted only when such seizure is made without warrant or authorization. He by referring to the evidence adduced by the PW-9, submits that Exhibit- 6, exhibited by the PW-9 would reveal that he had carried out the search and seizure involved in the matter only after being authorized for the same by Mr. A.K. Sarma, Deputy Superintendent of Police, CID, Assam. He submits that such operation being carried out under the provision of Section 42(1) of the NDPS Act, the search being carried out after sunset would be of no consequence and it would not be permissible for the appellant, herein, to assail the search so carried out. He submits that the search being carried out under the provisions of Section 42(1) of the NDPS Act upon an authorization received in this connection by PW-9, the decisions relied upon by the learned amicus curiae would have no application in the matter.

10. With regard to the contentions raised by the learned amicus curiae pertaining to the steps taken by the PW-9 after recovery of the narcotic substance seized from the house of the appellant and the plea of non-compliance of the provisions of Section 52(A) of the NDPS Act, he submits that the provisions of Section 52(A) of the NDPS Act is attracted only in case of disposal of seized narcotic drugs and psychotropic substances. He submits that a perusal of the Sub-Section (4) of Section 52(A) of the NDPS Act would reveal that notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs and psychotropic substances, controlled substances or conveyances and any list of samples drawn under Sub-Section (2) and certified by the Magistrate, as primary evidence in respect of such offence. He further submits that violation of the provision of Section 52(A) of the NDPS Act, if occasioning would also not be fatal to the case of the prosecution. He submits that any lapse or delay in compliance of Section 52(A) by itself would neither vitiates the trial nor entitle the accused to be released on bail. In this connection he has placed reliance on a decision of the Hon’ble Supreme Court in the case of Narcotic Control Bureau Vs. Kashim reported in (2024) SCC Online(SC) 3848.

11. Mr. Goswami, learned Addl. P.P. Assam submits that the narcotic substance having been recovered from the conscious possession of the appellant, herein, the presumption permissible to be drawn with regard to the same, under Section 54 of the NDPS Act, 1985 in the present case stood fortified in absence of any evidence brought on record by the appellant, herein, to dispel such presumption drawn in the matter with regard to the possession of the narcotic substance. He submits that the only plea taken by the appellant in the matter with regard to the recovery of the narcotic substance from his possession is that the Almirah from, wherein, the same was recovered was under the exclusive control of his wife and he had no access to the same. Mr. Goswami submits that the said plea of the appellant was not taken forward and established during the enquiry by adducing cogent and relevant evidence. He further submits that the said issue was not put to the prosecution witnesses, more particularly, the police officials carrying out search, as well as the seizure witness, during their cross-examination and accordingly, submits that the said plea of the appellant would not mandate any acceptance. In the above premises, Mr. Goswami submits that the judgment and order dated 04-06-2013 passed by the learned Addl. Sessions Judge No. 1 (Special Judge), Assam in NDPS Case No. 257(K)/2002 would not mandate any interference by this Court.

12. I have heard the learned counsel for the parties and perused the materials available on record. Before proceeding to examine the rival contentions raised by the parties to the proceeding, this Court would examine the evidence adduced by the prosecution witness.

13. P.W.1 Dr. Dhrubajyoti Hazarika had deposed that he was working as Scientific Officer, Drugs and Narcotics Division, FSL, Guwahati, in connection with CID P.S. Case No. 4/2002, he had received one sealed envelope having a closed polythene packet with two paper packets containing about 250 Mg. white powder marked as Exhibit-A. He had also received one sealed envelope having closed polythene packet with a paper packet containing about 500 mg. white powder marked as Exhibit-B along with one sealed envelope having a closed polythene packet with a paper packet containing about 500 mg. dirty white powder marked as Exhibit-C. He further deposed that on examination of the exhibits the same had given positive result for heroin and the percentage of heroin were found to be 27.98%, 84.40% and 59.93% respectively. This PW-1 exhibited his report as Exibit-1.

14. P.W.2 Ajit Ch. Halol in his evidence deposed that he did not know the accused persons present in the Court and in the year 2000 at about 08:30 p.m., while he was standing in front of his house, CID personnel brought three persons near him and took him to a place which is one furlong away from his house and there he saw some residential houses. He further deposed that the CID personnel had required him to wait outside a house and they proceeded to search the house. PW-2 further deposed that at that time, there were two male persons and two female persons along with a small girl inside the said house and he knew said two male persons and the two women, but did not know their names. PW-2 also deposed that after the search operation was complete, the police had informed him that they had recovered drugs from the house and also obtained his signature on a paper.

15. PW-3 Sri Brajendra Nath Talukdar had deposed that he knew the appellant, herein, since the year 2001 as he was staying in his residential house as a tenant. He deposed that one night at about 02:00 - 02:30 a.m, somebody called him from outside and when he came out of his house, saw the police personnel and they identified themselves before him and another tenant Madan Sarma who was also present there at that time. PW-3 further deposed that the police asked all of them to come into the tenanted room occupied by the appellant, herein, and the police also informed him that they had recovered out some white powder like materials from the Almirah kept in the said tenanted room. He further deposed that the police had informed him that that they had made some examination, which had disclosed that the said powder like material, was some narcotic drug. He also deposed that the appellant, herein, was thereafter arrested by the police and the powder like substance was seized along with the Almirah and a seizure list was prepared, wherein, he had put his signature as a witness.

16. The evidences adduced by PW-4, PW-5, PW-6 and PW-7 pertain to the other coaccused and accordingly, are not dealt with in the present order.

17. PW-8 Bina Gurung, during the trial had deposed that she was a woman constable, on that day, she along with another lady constable Rangamala Kalita and others of the CID team had apprehended one male person and one woman from a hotel situated at Paltanbazar and on being asked, the said persons disclosed that they obtained the drugs from a person residing at Jatia. PW-8 also deposed that, they thereafter, along with the said male person and the woman had proceeded to Jatia and the house concerned was shown to the CID personnel. She further deposed that the CID team thereafter carried out a search at Jatia and recovered one black colored bag from an Almirah kept inside the said house and from the said bag white powder like substance was recovered. She further deposed that the CID personnel arrested the said person from the house at Jatia.

18. PW-9 CID Inspector Deva Dutta, in his deposition during the trial deposed that on 04-02-2002 while he was serving as S.I. of Police attached to CID Branch, Guwahati, he being authorized by DSP, CID Branch, Guwahati, acting on a source information accompanied by a team of CID personnel had intercepted one auto rickshaw bearing registration No. AS-01K-0355. He further deposed that after searching the said auto rickshaw, the said CID team recovered 04 (four) grams of powder like substance suspected to be Heroin from the possession of a passenger. He further deposed that on being interrogated by the CID team, the said passenger disclosed his name as one Raju All son of Gulam Hussain of Athgaon. He further deposed that thereafter, on being lead by said Raju All, the said CID team went to Pilingkata under Basistha P.S. and picked up one Naga lady, namely, Smti. M. Athing in connection with the said dealings of Narcotics drugs and on being lead by the said accused, the CID personnel recovered 10 grams of powder suspected to be Heroin from the possession of one Bijoy Singh and Smti. Anjana Devi from room No. 816 of Bandana Hotel at Paltan Bazar. He further deposed that thereafter, on the strength of the statement made by Bijoy Singh and Anjana Devi, the CID team picked up one Subhash Singh from room No. 2 of Hotel Sumia at Paltan Bazar in connection with said dealing of Narcotics drugs and again, on being lead by said Subhash Singh, the said CID team searched the rented house of one Oken Singh located at Jotia under Dispur P.S. after observing all formalities of search, 40 grams of Narcotics drugs came to be recovered from the possession of Sri Oken Singh from a bag kept in a steel Almirah in his rented house at Jatia. PW-9 also deposed that, thereafter, field test and weighing was done of the recovered substance at the place of occurrence in presence of the appellant and other witnesses and a seizure list was prepared. He further deposed that the sample from the said seized Narcotics drugs were also drawn in three packets in duplicate each containing 250 Mg. at the place of occurrence i.e. at Basistha Police point, at Bandana Hotel and at Jatia and the sample packets were sealed and packed at the place of occurrence in presence of witnesses and signatures of witnesses and the accused persons were also obtained on the sealed packets for sending for FSI examination. He further deposed that he himself also lodged the FIR In connection with the case and he was entrusted by Officer-in-Charge, CID Police Station Mohan Ch. Das, (DSP) to investigate the case. His deposition further reveals that in course of investigation, he examined the witnesses under Section 161 Cr.P.C., send the sample for FSL examination, collected the report of FSL and arrested accused Raju Ali, Balo Singh, Rakesh Singh, Neval Parera, Smti M. Athin, Bijoy Singh, Smti Anjana Devi, Subhash Singh and Oken Singh in connection with the case and forwarded them to the Court. He also deposed that after obtaining FSL report it was found that the samples send for FSL gave positive test for Narcotics drugs (Heroin) and on the basis of investigation done, he having found a prima facie case under Section 21/29 of the NDPS Act against the said accused persons, filed charge sheet against them under the said section of laws.

19. The appellant, herein, was thereafter examined under Section 313 Cr.P.C. and the appellant during his examination under Section 313 Cr.P.C. had responded by saying that he was not involved in the dealing or possession of any narcotic drugs and the police had falsely implicated him in the matter. He also stated that he was a science graduate and was teaching in a school in Arunachal Pradesh. The appellant further deposed that the Almirah from which the purported recovery was made had belonged to his wife.

20. The evidences coming on record, more particularly, the evidences adduced by the PW-9 would go to reveal that the recovery of the narcotic substances was made from the possession of the appellant, herein. The said deposition of the PW-9 in this connection is supported by the evidence adduced by PW-3 the owner of the premises, wherein, the appellant was staying at the relevant point of time as a tenant. A close perusal of the evidence adduced by PW-9 would reveal that 40 (forty) grams of Heroin was recovered from the tenanted premises of the appellant, from a bag kept in a steel Almirah placed therein. A seizure list, exhibited as Exhibit-3, was prepared with regard to the recovery of Heroin from the possession of the appellant, herein. PW-3 is one of the seizure witnesses. The fact that the appellant was staying in the said premises as a tenant is established. The evidences brought on record, demonstrates that the recovery of the bag from the Almirah was established. The evidence of PW-9 was also corroborated by the evidence adduced by PW-8. The evidence of PW-1, Dr. Dhrubajyoti Hazarika reveals that the samples received by him on examination had returned a positive result for Heroin. Accordingly, it is established that seized articles recovered from the possession of the appellant, herein, was Heroin.

21. At this stage, this Court would examine the contentions raised by the learned amicus curiae appearing for the appellant that the search was made in clear violation of the provisions of Section 42(1) of the NDPS Act. Such contention is to the effect that the search having admittedly made after sunset, the same could not have been made without an authorization received in this connection from a superior officer. The said issue need not detain this Court further inasmuch as from the evidence of PW-9 it is apparent that he was authorized to carry out the search by the DSP, CID and the authorization letter issued was exhibited as Exhibit-6 by him. The said position was not contested by the appellant during the cross-examination of the PW-9. Accordingly, the contention raised by the learned amicus curiae appearing for the appellant regarding violation of the provisions of Section 42(1) of the NDPS Act would not mandate any acceptance.

22. The learned amicus curiae had thereafter raised a contention to the effect that the sample drawn of the purported narcotic substance recovered from the possession of the appellant at the place of its recovery was forwarded to the FSL authorities after a delay of 02 (two) days and there was no explanation by the prosecution as to the manner in which the said substance was kept before it was forwarded to the FSL authorities. This Court finds that the said issue was considered by the learned Special Judge in the judgment and order dated 04-06-2013 and the following conclusions were drawn:-

                   “The learned defense counsels further criticized that seized article was sent for F.S.L. examination after two days of the alleged seizure and there is no explanation from the prosecution regarding the delay, hence, evidence of P.W.9 can not be relied on. The P.W.1-Dr. Dhrubajyoti Hazarika, adduced evidence that he received the sealed packet containing sample with an envelop having closed polythene packets with a paper Packets. In the case law of State of Rajasthan -Vs- Daulatgiri reported in (2009)14 Supreme Court Cases 387the Hon'ble Apex Court observed that when the seals are intact In spite of delay in sending the sample, the prosecution is not fatal. In the case in hand, nothing reveals from crossexamination of seizing officer(P.W.9) that he did not kept the sample in the safe custody after it was drawn from the seized heroine and till sending for F.S.L. Examination. The seizing officer P.W.9 testified that the sample packets were drawn, packs and sealed at the place of occurrence in presence of witnesses and signatures of witnesses and the accused were obtained on the sealed packets for sending those for F.S.L. Examination. There was delay of two days for sending the sample to F.S.L. Examination and there was no cross examination of P.W.1 that he did not received the sample with the seal intact. Hence, it can not be said that P.W.1 did not receive the sample in a condition that the seal was not intact, hence the possibility of tempering the samples can be totally ruled out in this case.”

23. On a perusal of the said conclusions, this Court finds that the same was so drawn basing on the evidences coming on record during the trial and no infirmity is found with the same. Accordingly, the said contention of the learned amicus curiae pertaining to the manner in which the said sample was kept by the police after it was drawn at the place of occurrence till the same was forwarded to the FSL authorities would not mandate any acceptance.

24. The learned amicus curiae appearing for the appellant had submitted that the violation of the provisions of Sub-Section (2) of Section 52(A) occasioning in the matter has the effect of vitiating the trial and the appellant would be entitled to be acquitted from the charge framed against him. Sub-Section (2) of Section 52(A) of the Act of 1985 mandates that where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such substances so seized containing all requisite particulars and make an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared or for taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true or allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Sub-Section (4) of Section 52(A) mandates that notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs or narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under Sub-Section (2) and certified by the Magistrate, as primary evidence in respect of such offence. It is seen that in the present case the recovered materials was 40 (forty) grams in weight. Accordingly, a preparation of inventory as contemplated under Section 52(A) of the NDPS Act would not be called for and nonpreparation of such inventory would not be fatal to the case of the prosecution. The Hon’ble Supreme Court in the case of Kashim (Supra) had held that Sub-Section (2) of Section 52(A) of the NDPS Act only laying down the procedure as contemplated under Sub-Section (1) thereof, any lapse or delay in compliance thereof, would be merely a procedural irregularities which neither entitles the accused to be released on bail nor vitiates the trial on that count alone. Accordingly, this Court, is of the considered that that the contentions raised by the learned amicus curiae for the appellant in the matter pertaining to violation of the provision of Section 52(A) of the NDPS Act would not mandate an acceptance.

25. This Court also notices that the samples of the Narcotic Substance drawn at the spot were sealed and thereon signatures of the witnesses and the appellant were duly taken, the PW-1 the Forensic Expert who had examined the samples, had deposed the samples to be received by him in sealed condition. Accordingly, this Court is of the considered view that the integrity of the samples was not compromised in any manner. The appellant had also failed to lead evidence that the sampling process was unreliable or that the integrity of the samples stood compromised.

26. The evidences coming on record having established the recovery of the narcotic substance from the conscious possession of the appellant, herein, this Court is of the considered view that the presumption permissible to be drawn under the provision of Section 54 of the NDPS Act stands fortified in the facts and circumstances of the present matter. The appellant, herein, had failed to adduce cogent evidence to rebut such presumption permissible to be drawn in the matter under Section 54 of the Act of 1985. The only plea taken by the appellant during the examination under Section 313 Cr.P.C. is to the effect that the Almirah is question belonged to his wife. The appellant had not lead any evidence to demonstrate that the Almirah was not under his control and accordingly, the recovery of the bag containing the narcotic substance, which was concealed in the Almirah, leads to only one conclusion of recovery of the narcotic substance from the conscious possession of the appellant, herein. The appellant has also not found to have put the said issue to the prosecution witnesses deposing in the matter. Accordingly, the said plea of the appellant would not mandate any further consideration by this Court.

27. This Court notices that a charge under Section 21(c) of the NDPS Act was framed against the appellant during the trial, however, the learned Trial Court on conclusion of the trial upon appreciation of the evidences coming on record had held that the offence established by the prosecution against the appellant was one under Section 21(b) of the NDPS Act. The said conclusion was reached by the learned Trial Court on the ground that the total weight of the recovered and seized Heroin from the appellant, herein, was 40 (forty) grams and the same was greater than the small quantity but less than the commercial quantity as per the provision of NDPS Act. The appellant having been convicted for a lesser offence than that he was initially charged, the same being permissible under the provisions of Section 222(2) of the Cr.P.C., this Court finds that no error in the learned Trial Court proceeding to convict the appellant, herein, under Section 21(b) of the NDPS Act.

28. In view of the above discussions, this Court is of the considered view that the conviction of the appellant, herein, under Section 21(b) of the NDPS Act by the learned Trial Court being supported by the evidences coming on record against him, would not mandate any interference. Accordingly, the impugned judgment and order dated 04-06- 2013 would also not mandate any interference. The present appeal accordingly stands dismissed.

29. The appellant, herein, shall surrender before the court of learned Addl. Sessions Judge No. 1 (Special Judge), Assam at Guwahati within a period of 02 (two) months from the date of this order to undergo the remaining portion of his sentencing.

30. The learned Trial Court shall on receipt of the TCR, issue notice to the appellant and take all requisite steps to ensure compliance by the appellant of the directions passed, hereinabove.

31. Registry to send back the TCR expeditiously along with a copy of this order.

32. Before parting with the record, this Court appreciates the able assistance rendered by Mr. T. Deuri, learned amicus curiae appearing for the appellant, towards disposal of the matter.