Dr.T. Amarnath Goud, J.
1. Heard Mr. Raju Datta, learned Public Prosecutor, appearing for the appellant-State of Tripura. Also heard Mr. Ratan Datta, learned Legal Aid Counsel appearing for the respondent.
2. The appellant-State, by means of filing the present appeal has challenged the judgment and order dated 01.06.2024 passed by the learned Special Judge (NDPS), Sepahijala Tripura, Sonamura, in connection with case No. Special (NDPS) 12 of 2024, whereby the respondent has been acquitted from the charge under Sections 20(b)(ii)(C)/25 of the NDPS Act.
3. Facts leading to the present appeal are that, on the basis of a suo moto written complaint, on 14.08.2023, huge quantity of contraband articles were recovered from the possession of the accused-respondent. A specific case was registered against the accused-respondent. After completion of investigation, charge sheet was submitted against the accused respondent under Sections 20(b)(ii)(C), 25 of the NDPS Act. Thereafter, learned Special Judge (NDPS), Sonamura, took cognizance of the offence against the accused-respondent and after supplying the prosecution papers, also framed charge against the accused-respondent to which the accused-respondent pleaded not guilty and claimed to be tried. Accordingly, trial commenced. During trial, prosecution examined only one witness out of nine cited witnesses and exhibited a document. Subsequently, examination of the prosecution witnesses was closed and the accused respondent was examined under Section 313 Cr.P.C. wherein he denied all the incriminating materials brought against him and thereby the learned trial Court by the impugned order acquitted the accused respondent from the charge leveled against him on the ground that the entire prosecution case is based on no evidence. Being aggrieved, the appellant has filed the present appeal challenging the impugned judgment and order of acquittal.
4. Mr. Raju Datta, learned PP appearing for the appellant-State, has argued that the learned trial Court did not consider that the huge quantity of contraband articles were recovered exclusively from the possession of the accused-respondent and the same relates to a grave offence under NDPS Act. Charge sheet was also submitted against the accused-respondent but, the learned trial Court without giving any opportunity to the prosecution witnesses closed the evidence and acquitted the accused-respondent from the charges leveled against him. Mr. Datta, learned PP has further submitted that the learned trial Court did not consider the settled principle of law that no accused can be acquitted from criminal liability without facing proper trial and giving reasonable opportunity to the prosecution agency. Mr. Datta, learned PP has further submitted that notices were issued upon the witnesses but, without waiting for the service report, learned trial court whimsically closed evidence of the prosecution witnesses after examining only one witness and most erroneously acquitted the accused-respondent. Mr. Datta, learned PP has further argued that many cases under NDPS Act exist where the accused persons were acquitted without providing a proper opportunity to the prosecution. Mr. Datta, learned PP has placed reliance upon the judgment and order dated 30.07.2025 passed by this Court in Criminal Appeal No.4 of 2025, which deals with the similar circumstances, and urged for remanding back the case for conducting fresh trial after setting aside the impugned order dated 01.06.2024 by affording reasonable opportunity to rest of the prosecution witnesses for their examination and cross-examination.
5. On the other hand, Mr. Ratan Datta, learned Legal Aid Counsel appearing for the respondent-State has submitted that the learned trial court has rightly closed the prosecution evidence since there was total failure on the part of the prosecution to secure attendance of the witnesses. Mr. Datta, learned counsel has further submitted that on verbal submission of the prosecution, learned trial court has closed the prosecution evidence. Mr. Datta, learned counsel has also stated the entire case is based on no evidence hence urged to dismiss the appeal upholding the acquittal of the respondent.
6. We have gone through the case records and the orders contained therein.
7. The trial court took cognizance of offence on 16.02.2024 and framed charge against the accused-respondent on 13.03.2024. After commencement of trial, summon was issued upon the prosecution witnesses. The learned trial Court by its order dated 13.03.2024 fixed the calender for examination of the witnesses on 16.04.2024, 17.04.2024 and 18.04.2024, but out of nine PWs, only one witness turned up on 17.04.2024. On 16.04.2024 no witness turned up and service report was not received. On 17.04.2024 only one witness turned up and no other witness turned up and on that date also no service report was received. On 18.04.2024 also no witness turned up and service report was not received, and subsequently, new calendar was fixed for PWs on 17.05.2024 and 18.05.2024. On 18.05.2024 no witness turned up and no service report was received. Accordingly, evidence was closed and 01.06.2024 was fixed for examination of the accused under Section 313 Cr.P.C. On 01.06.2024, the learned trial court in exercise of power under Section 232 Cr.P.C. concluded the case acquitting the accused from the charges leveled against him. For convenience, the orders dated 13.03.2024, 16.04.2024, 17.04.2024, 18.04.2024, 18.05.2024 and 01.06.2024, are reproduced here-in-below:
“13.03.2024
Custody accused Bishnu Nama is produced from J/C.
Ld. Counsel Mr. F. Haque is present for the accused.
One bail petition is filed for the accused by his Ld. Advocate Mr. S. Ali along with a fresh vokalatnama and AIS which is executed by the accused in favour of the Ld. Counsel Mr. S.
Ali.
Ld. Counsel has cited some judgments by firishti.
Ld. Special PP Mr. M. Sen is present.
Heard both sides on the bail petition.
Perused the record.
Charge sheet has already been submitted u/s 20(b) (ii)(C)/25 of NDPS Act.
In view of the rigors u/s 37 of the Act I am unable to allow the bail petition at this stage.
Hence, the bail prayer is rejected.
Heard both sides on the point of framing charge.
On perusal of the case record and upon hearing of Ld.
Counsel sufficient materials are found available to frame charge u/s 20(b)(ii)(C)/25 of NDPS Act and accordingly charges are framed against the accused Bishnu Nama u/s 20(b)(ii)(C)/25 of NDPS Act to which he pleads not guilty and claims to be tried.
Office is directed issue summons upon all the CS listed witnesses except IO.
Fix 16.04.2024 for PWs(1 to 3).
Fix 17.04.2024 for PWs(4 to 6).
Fix 18.04.2024 for PWs(7 to 9)
Accused is further remanded to J/C till 16.04.2024.”
“16.04.2024
Custody accused Bishnu Nama is produced from J/C.
Ld. Counsel Mr. T. Ali is present for the accused.
No bail petition filed for the accused.
Ld. Special PP Mr. M. Sen is present.
No witness is present.
No service report received regarding the summons.
To-date-fixed (17.04.2024) for PWs(4 to 6).
Accused is further remanded to J/C till 17.04.2024.”
“17.04.2024
Custody accused Bishnu Nama is produced from J/C.
Ld. Counsel Mr. S. Ali is present for the accused.
No bail petition filed for the accused.
Ld. Special PP Mr. M. Sen is present.
One witness namely Indrajit Sil Sarma is present and he is examined as PW-01 through VC and discharged.
No other witness is present. No service report received regarding the other summons. To-date-fixed (18.04.2024) for PWs.
Accused is further remanded to J/C till 18.04.2024”.
“18.04.2024
Custody accused Bishnu Nama is produced from J/C.
No step for the accused.
Ld. Special PP Mr. M. Sen is present.
No other witness is present.
No service report received regarding the other summons.
On perusal of the record it appears that today is the last day of this calendar for Pws.
As no summon returned regarding the witnesses, no further summon shall be issued upon the witnesses from this court and prosecution is directed to produce the witnesses except IO on his own accord on the next date positively failing which the case course of action will be taken by this court.
Inform accordingly.
Fix 17.05.2024 for Pws(1 to 4)
Fix 18.05.2024 for Pws(5, 7 & 8).
Accused is further remanded to J/C till 17.05.2024”.
“18.05.2024
Custody accused Bishnu Nama is produced from J/C.
One bail petition is filed for the accused by his Ld. Defence Counsel Mr. S. Ali.
Ld. Special PP Mr. N. Debnath is present.
Heard both sides on the bail petition.
Ld. Special PP raised objection to the bail prayer.
On perusal of the record and upon hearing of Ld.
Special PP I find incriminating materials against the accused and it cannot be believed that the accused will not commit the same offence while on bail.
Hence, in view of the Section 37 of the NDPS Act I find no reasonable ground to allow the bail prayer in favour of the accused.
Hence, the bail prayer is rejected.
Today the case was fixed for Pws.
No other witness is present.
No service report received regarding the other summons.
On the last occasion prosecution was directed to produce the witnesses in this present schedule on his own accord but prosecution has failed to produce the witnesses.
Hence, on verbal submission of the prosecution the evidence of prosecution witnesses is hereby closed.
Accused is directed to furnish bail bond of Rs. 50000/- in compliance of Section 437A of Cr.P.C. Fix 01.06.2024 for examination of accused person u/s 313 of Cr.P.C/execution of bail bond.
Accused is further remanded to J/C till 01.06.2024.”
“01.06.2024
Custody accused person namely Bishnu Nama is produced from JC.
Ld. Counsel Mr. S.
Ali is present for the accused person.
Ld. PP Mr. M. Sen is present for the state.
Today the date was fixed for examination of the accused person under section 313 of Cr.PC/ execution of bail bond.
Bail bond submitted on behalf of the accused in terms of order dated 21.05.2024 which is checked, found correct and accepted.
From the record, I find that, it is a case of no evidence.
Hence, I proceed to conclude this case in exercising power under section 232 of Cr.PC to make an order of acquittal. In this case charge was framed against the accused person on 13.03.2024 under section 20(b)(ii) (C )/25 of NDPS Act.
In course of evidence prosecution examined witness namely, Sri Indrajit Sil Sharma as PW.1.
PW.1, Sri Indrajit Sil Sarma in his evidence deposed that on 11.09.2023 he was posted as Scientific officer Cum Assistant Chemical Examiner Chemistry Division, Tripura State F.S.L, Govt of Tripura and on that day his office received one sealed packet forwarded by SDPO, Sonamura vide No.104 dated 07.09.2023 in connection with Kalamchoura PS Case No.2023 KLC082 dated 14.08.2023 under section 20(b)(ii) (C )/27/29 of NDPS Act and themode on which the parcel was found to be packed and the description of the seal on receipt exhibited in his report. PW.1 further deposed that the exhibits were analyzed by colour test, chromatographic methods (TLC) & macroscopic and microscopic method and CHEM/485/23(A1) to CHEM/485/23(CI) the exhibits are detected to be ganja (Cannabis) and the remanants of the exhibits are returned separately under sealed cover.
During cross examination PW.1 deposed that the letter was addressed to the Director of SFSL and he did not get any SFSL form along with the forwarding letter and he did not get any MR No. in the exhibits which was forwarded in c/w this case.
In the aforesaid circumstances, there cannot and should not be any doubt that it is a case of no evidence at all for which accused person desires to be acquitted from the instant prosecution.
In the result, the accused person namely, Bishnu Nama is hereby acquitted from the charge under section 20(b)(ii) (C )/25 of NDPS Act.
Seized alamats, if any be destroyed / released after expiry of appeal period.
The case is disposed of on contest.
Make necessary entry in the relevant TR and CIS.
Pronounced in the open court.”
8. A court cannot automatically acquit an accused under the NDPS Act merely because the witnesses did not turn up. Courts have the power to compel the attendance of witnesses using various provisions of the Criminal Procedure Code. The court must assess the entire evidence presented and determine if the prosecution has proven its case beyond a reasonable doubt, even in the absence of certain witnesses.
9. This court in Criminal Appeal 4 of 2025 has relatably dealt with similar and identical issue-in-question, raised in this appeal, wherein in paras 16 to 22 of the said judgment, this court has observed thus:
“[16] To deal with the case, this court thinks it apposite to extract herein below Sections 67, 87, 230 and 242 of Cr.PC. 67. Service of summons outside local limits: When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.
87. Issue of warrant in lieu of, or in addition to, summons- A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest –
(a) if either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court has reason to believe that he has absconded or will not obey the summons;
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. 230. Date for prosecution evidence. –
If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under Section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
242. Evidence for prosecution
(1)If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241 the Magistrate shall fix a date for the examination of witnesses.
(2)The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing,
(3)On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution;
Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross examination.
[17] The learned Public Prosecutor's submission regarding the alarming number of 145 acquittals in NDPS cases without proper opportunity to the prosecution and the subsequent resignations of public prosecutors further underscores the systemic issues at play, which warrant immediate rectification to uphold the integrity of the judicial process. The cases pertaining to 2022 were disposed of in 2024 in a hurried manner, which was not warranted.
[18] In light of the fundamental principle that a fair trial is paramount to ensuring justice, this Court notes with concern the Trial Court's premature closure of the prosecution's evidence. The Apex Court's pronouncements are unequivocal Shailendra Kumar (supra) mandates the trial court's imperative duty to secure the presence of the Investigating Officer and other crucial witnesses, even resorting to coercive measures like warrants, to prevent the frustration of justice. This critical responsibility was evidently not discharged in the present case, as the prosecution was denied the opportunity to present its full evidence. For ready reference, the same is extracted herein below:
9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.
[19] Further, the decision to terminate the trial due to the mere lapse of time stands contrary to the dictum in P. Ramachandra Rao (supra), which firmly establishes that no rigid outer limit can be prescribed for the conclusion of criminal proceedings, particularly if such termination stifles the prosecution's ability to prove its case. The Trial Court's role, as clarified in Mina Lalita Baruwa (supra), is not that of a silent spectator; rather, it has an active duty to ensure all relevant evidence is brought forth and to intervene when necessary. This inherent judicial responsibility was not upheld. For ready reference, the same is extracted herein below:
19. In criminal jurisprudence, while the offence is against the society, it is the unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of vital information placed before it. It can also be said that in that process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the Court should have acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the Code of Criminal Procedure envisages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty does not escape and innocent is not punished. It is with the above background, we feel that the present issue involved in the case on hand should be dealt with.
[20] Moreover, the principle from Prodyut Kumar Baidya (supra) reinforces the court's obligation to secure witness presence once summons are served. For ready reference, the same extracted herein below:
4. Heard the submissions of the ld. Advocates appearing for the parties. Considered the materials on record. From the impugned order it appears that the Sub-Postmaster, Katihar Post Office and Head of Post-Office were served with the summons and they received the same. In spite of receipt of the summons, the SubPostmaster, Katihar Post Office failed and neglected to appear before the Court in answer to the summons. The ld. Magistrate sought to have taken steps according to law for securing the presence' of the witnesses before him. Instead of doing the same, he simply avoided it saying that the matter is a quasi-civil in nature and it is duty of the person who cited them as witnesses to secure his presence before the Court. The part that is to be performed by the party who cites a witness is to deposit the requisite and if on his prayer the summons are issued then it becomes the duty of the court to secure the presence of that witnesses if the summons are served upon that witness as the fiat of the court has not been complied with. In the instant case, upon the prayer of the party summons were issued and served upon the witnesses but they ignored the summons and failed to appear before the court. In such circumstances, the court is to take steps for securing their presence before the court as contemplated under the Cr. P.C. The ld. Magistrate is, accordingly, directed to take appropriate steps to secure the presence of the said witnesses before the court and for that he may consider the exercise of his power under Section 87 of the Cr. P.C. 1973.
[21] The cumulative effect of these judicial pronouncements leads this Court to conclude that the Trial Court's actions constitute a clear deviation from established norms, resulting in a miscarriage of justice that warrants the setting aside of the impugned judgment.
[22] This Court must remind the trial court of its powers and duties under the Code of Criminal Procedure, 1973, as well as the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 67 of the NDPS Act deals with the power to call for information, which is often a critical piece of evidence. The trial court's duty to secure the presence of the witnesses who can testify to such information is thus integral to the prosecution's case. Under Section 242 of the Cr.P.C., the court is to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. This is the stage where the prosecution is to be given a fair and complete opportunity. Furthermore, Section 230 of the Cr.P.C. expressly mandates the judge to fix a date for the examination of witnesses and to issue process for compelling their attendance upon the prosecution's application. Finally, Section 87 of the Cr.P.C. provides the necessary legal mechanism, allowing the court to issue a warrant for a person's arrest in addition to, or in lieu of, a summons, if there is reason to believe the person has absconded or will not obey the summons, or fails to appear despite due service. The trial court's inaction in utilizing these statutory powers to ensure a full and fair trial for the State led to a miscarriage of justice that cannot be sustained.”
10. When a court has previously dealt with a similar issue, the legal principle of precedent generally requires that the same law be applied to ensure consistency and predictability in the legal system. In light of the precedents cited, the Court held that the trial court had committed error in law in acquitting the accused-respondent without securing evidence of the prosecution witness. Thus, the impugned judgment and order passed by the learned trial Court is a miscarriage of justice and the same cannot sustain.
11. In fine, the impugned judgment and order dated 01.06.2024 passed by the learned Special Judge(NDPS), Sepahijala District, Sonamura, in case No. Special(NDPS) 12 of 2024, is hereby set-aside. Accordingly, the matter is remanded back to the learned Special Judge(NDPS), Sepahijala District, Sonamura, with a direction to conduct a fresh trial by calling upon rest of the prosecution witnesses. However, it is made clear that reasonable opportunity shall be afforded to the prosecution witnesses. It is further made clear that after closure of evidences of all the prosecution witnesses, learned Court below shall deliver its judgment afresh. The entire exercise shall be completed expeditiously.
The appeal stands allowed to the extent as indicated above. Pending application(s), if any, also stands disposed.
12. The accused-respondent is directed to surrender before the learned trial Court on or before 30.01.2026. Upon his surrender, the learned trial Court may consider bail application, if so, filed by him, in accordance with law. It is needless to observe that, in the event the accused- respondent is on bail pending trial, the benefit shall be extended to him.
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