Gauhati High Court
Page No.# 1/9 vs The State Of Assam And 2 Ors on 18 September, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/9
GAHC010213802024
2025:GAU-
AS:12901-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./373/2024
MOHAMMAD ALIMUDDIN
S/O. MD. JALALUDDIN, R/O. SORA, MAMUNG LEIKAI, P/S. KAKCHING,
DIST. THOUBAL, MANIPUR.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE PP, ASSAM.
2:MUKESH KUMAR
I/O. DOBOKA POLICE STATION
DIST. HOJAI
ASSAM.
3:MINTU HANDIQUE
I/O. DOBOKA POLICE STATION
DIST. HOJAI
ASSAM
Advocate for the Petitioner : MR. S KAUR, L BANIK,N NEOG
Advocate for the Respondent : PP, ASSAM,
Linked Case : I.A.(Crl.)/999/2025
MOHAMMAD ALIMUDDIN
S/O. MD. JALALUDDIN
R/O. SORA
MAMUNG LEIKAI
P/S. KAKCHING
DIST. THOUBAL
MANIPUR.
Page No.# 2/9
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE PP
ASSAM.
------------
Advocate for : S KAUR
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ORS
Linked Case : I.A.(Crl.)/1065/2024
MOHAMMAD ALIMUDDIN
S/O. MD. JALALUDDIN
R/O. SORA
MAMUNG LEIKAI
P/S. KAKCHING
DIST. THOUBAL
MANIPUR.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE PP
ASSAM.
2:MUKESH KUMAR
I/O. DOBOKA POLICE STATION
DIST. HOJAI
ASSAM.
3:MINTU HANDIQUE
I/O. DOBOKA POLICE STATION
DIST. HOJAI
ASSAM.
------------
Advocate for : MR. S KAUR
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND 2 ORS
Linked Case : CRL.A(J)/36/2025
MAYANGIAMBAM JIBAN MEETEI
S/O- M. ACHOU MEETEI
R/O- MALOM TULIYAIMA AWANG
P.S. NAMBOL
DISTRICT IMPHAL
Page No.# 3/9
WEST MANIPUR. MANIPUR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MRS DIPANJALI BORPUJARI
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 18.09.2025 (M. Zothankhuma, J)
1. Heard Ms. L. Banik, learned counsel for the appellant in Criminal Appeal No. 373/2024. Also heard Ms. D. Borpujari, learned legal aid counsel for the appellant in Criminal Appeal No. 36/2025. Also heard Mr. R. R. Kaushik, learned Addl. PP, Assam, appearing for the State.
2. The two appeals are being decided by the way of this common Judgment and order, in view of the fact that the appellants in the two appeals, have been convicted and sentenced under Section 21C NDPS Act, by way of the same impugned Judgment & Order dated 07.08.2024, passed by the Special Judge, Sankardev Nagar, Hojai, in special NDPS Case No. 34/2022.
3. The appellants have also been sentenced under Section 21C NDPS Act, to undergo rigorous imprisonment for 18 years, with a fine of Rs. 1 lakh (rupees one lakh) each, in default, the appellants are to undergo simple imprisonment for 1(one) year.
4. The brief facts of the case is that 100 (one hundred) blue coloured plastic packets, each containing 200 (two hundred) pink coloured tablets, which was suspected to be Yaba tablets, was seized from the possession of the appellants on 07.02.2022.
5. Subsequent to the seizure of the Yaba tablets, Doboka P.S. Case No. 57/2022 was Page No.# 4/9 registered under Section 21(c)/23(c)/27(a)/29, NDPS Act, 1985.
6. The examination of the seized contraband by the FSL was to the effect that the same tested positive for being methamphetamines. After Charge Sheet had been submitted against the appellants under Section 21(c)/23(c)/27(a)/29 of the NDPS Act, the learned trial court framed charges against the appellants under Section 21(c)/23(c)/27(a)/29, NDPS read with Section 34 IPC, which they denied and claimed to be tried.
7. After the learned trial Court recorded the evidence of 11 prosecution witnesses and 1(one) defence witness, the learned trial Court came to a finding that the appellants had committed an offence punishable under section 21(c) of the NDPS Act. The learned Trial Court thereafter convicted the appellants under section 21(c) of the NDPS Act and sentenced them under section 21(c) of the NDPS Act.
8. Being aggrieved, the appellants have approached this Court by way of the present appeals.
9. The learned counsels for the appellants submit that the contrabands that were seized having been found to be methamphetamine, the learned trial Court could not have framed charges and convicted the appellants under section 21(c). It could have only convicted the appellants under section 22(c), after charges had been framed under section 22(c) of the NDPS Act. They accordingly pray that the impugned judgement and order should be set aside. The appellants counsels further submit that the seized contraband was not produced before the learned Trial Court during the trial and what had been produced was only an inventory made under section 52A of the NDPS Act, which stated that the seizure had been made on 07/02/2021. However, the seizure alleged to have been made from the appellants had been made on 07/02/2022. As such, the prosecution had not proved that any contraband had been seized from the appellants on 07/02/2022. They also pray that in the event the appeals are not decided, they may be released on bail as they have been in jail for 3 years 7 months.
10. The learned APP on the other hand submits that in terms of section 510 of the BNSS, no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid, merely on the ground that no charge was framed or on the ground of any error, omission or Page No.# 5/9 irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. He submits that even if the Court of appeal is of the opinion that a failure of justice has been occasioned, it may, in the case of an omission to frame a charge, order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge.
11. We have heard the learned counsels for the parties.
12. Section 21 and 22 of the NDPS Act, 1985, reads as follows :-
"21.Punishment for contravention in relation to manufactured drugs and preparations.--
Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a)where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b)where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c)where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
22. Punishment for contravention in relation to psychotropic substances.--
Page No.# 6/9 Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine .
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]
13. A perusal of section 21 of the NDPS Act shows that the punishment provided under section 21(c) can only relate to a manufactured drug such as, Heroin etc, while the punishment that can be given under section 22(c) can relate only to Psychotropic substances, such as methamphetamine.
14. Section 2(xxiii) of the NDPS Act, 1985 defines psychotropic substances to mean any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. Sl. No. 19 of the Schedule, made in relation to section 2(xxiii) of the Act shows that methamphetamine is a psychotropic substance and not a manufactured drug as defined in section 2(xi) of the NDPS Act.
15. The above having clearly shown that methamphetamine is a psychotropic substance, Page No.# 7/9 the learned trial Court could not have framed charge under section 21(c) in relation to the seizure of methamphetamine. Consequently, in the absence of any charge being framed under section 22(c), the learned trial Court could not have convicted and sentenced the appellants under section 21(c) of the NDPS Act, in relation to the seizure of psychotropic substance.
16. Though the learned APP, Assam, has taken us through section 510 of the BNSS, in support of his submission that a finding, sentence or order by a Court of competent jurisdiction would not be deemed to be invalid, merely on the ground that no charge was framed under section 22(c) NDPS Act and as such, there was no infirmity in the conviction and sentence of the appellants under section 21(c) of the NDPS Act, we are of the view that section 510 BNSS would not come into play in the present case. The reason being that not only has the learned trial Court not framed charge under section 22(c) NDPS Act in respect of the seizure of methamphetamines, the learned trial Court has not convicted the appellants under section 22(c) of the NDPS Act. The submission of the learned APP could have been accepted, if the learned trial Court had convicted the appellants under section 22(c) NDPS Act, even if due to some error, it had forgotten to frame charge under section 22(c). However, in the present case, not only was the framing of charge made under a wrong provision, but the very conviction is also illegal as the learned trial Court did not convict the appellants under section 22(c) of the NDPS Act, for possession of psychotropic substance.
17. In view of the reasons stated above, it is the opinion of this Court that a failure of justice has been occasioned by the learned trial Court, by framing a charge under section 21(c) and convicting the appellants under section 21(c) in relation to the seizure of methamphetamines. Accordingly, we find that the impugned judgement and order dated 07/08/2024 passed by the learned Special Judge, Sankardev Nagar, Hojai in Special (NDPS) Case No. 34/2022, is not sustainable in law. The same is accordingly, set aside.
18. However, keeping in view the fact that a failure of justice has been occasioned due to the framing of charge on a wrong provision of law and also due to the conviction being made on the wrong provision of law, the learned trial Court should be allowed to frame a proper charge under the correct provision of law i.e. section 22(c) of the NDPS Act, keeping in view the fact that the seizure of methamphetamine pertains to a commercial quantity. Accordingly, Page No.# 8/9 keeping in view section 510 BNSS, we remand the case back to the learned Trial Court for framing a charge under Section 22(C) of the NDPS Act against the appellants and direct that the Trial be re-commenced from the point immediately after framing of the proper charge.
19. The above being said, it is surprising that the learned Trial Court had framed a charge under Section 21(C) of the NDPS Act for a seizure relating to methamphetamines. However, the fault for the said error also lies with the police, who had not only registered a case, but had also submitted a charge-sheet under Section 21(C) of the NDPS Act. The prosecutor who had also conducted the trial, has also apparently not considered the fact that the charge was framed under a provision of law, which had no application to the facts of this case. The mistake committed by the police, the Court and the prosecutor for an offence relating to a commercial quantity of methamphetamine is unbelievable. The coincidence of the above authorities in not knowing the law is too great, for all the stakeholders to take a stand that they were ignorant of law. It clearly shows that they were not diligent and they did not take pains to read the provisions of the NDPS Act. Though the counsel representing the accused/appellants should have also informed the learned Trial Court, regarding the error in the charge framed by the learned Trial Court, this Court does not wish to make any observation with regard to the same, except to observe that as officers of the Court, they should have also corrected the learned Trial Court, with regard to the alleged mistake or otherwise that had been committed by all.
20. The co-incidental ignorance of all the stakeholders is too great to be ignored. As such, this Court is of the view that the authorities in the Police Department and in the State Government should enquire into the matter, to ascertain as to how the police and the other authorities could have committed such a huge blunder. The learned Judge of the Trial Court, who had tried the case, may also be required to be more vigilant, as it had completely lost sight of the provisions of law, not only at the time of framing of charge, but also at the time of the trial and at the time of passing the impugned judgement and order.
21. The above being said, it has been submitted that the appellants have been in jail for the last 3 years 7 months. The Supreme Court, in the case of Dhiraj Kumar Sarma Vs. State of Uttar Pradesh [Criminal Appeal No. 6690/2022] has held that section 37 of the NDPS Act is not attracted when the accused has been in jail for a long time. In the case of Rabi Prakash vs. Page No.# 9/9 State of Odisha [2023 SCC OnLine SC 1109], the Supreme Court has held that prolonged incarceration must over-ride the statutory embargo under section 37 of the NDPS Act. Further, in the case of Md. Muslim @ Hussain Vs. State (NCT of Delhi)[ 2023 SCC OnLine SC 352], the Supreme Court held that grant of bail on the ground of undue delay in trial cannot be fettered by section 37 of the NDPS Act. On perusing the records, it is seen that the inventory made with regard to the contraband under section 52A of the NDPS Act relates to a seizure made on 07/02/2021 and not to the seizure made on 07/02/2022 from the appellants. It thus, appears that there is some dichotomy between the case projected by the prosecution and the inventory made under section 52A, relating to the seizure of methamphetamine from the appellants. In the present case, as the impugned judgement and order has been set aside and as the trial is to recommence after framing of charge under section 22(c) of the NDPS Act by the learned trial Court, it would take some time for the trial to be completed. Accordingly, we are of the view that bail should be granted to the appellants at this stage, though the learned APP had objected to the grant of bail to the appellants.
22. Accordingly, the appellants Mohammad Alimuddin and Mayangiambam Jiban Meetei are allowed to go on bail, on furnishing a bail bond of Rs. 2,00,000/- (Rupees two lakhs) each with one local surety each, who is a Government servant, to the satisfaction of the learned trial Court. The bail is subject to the condition that the appellants shall attend the Court regularly.
23. The appeals are accordingly allowed.
24. Send back the TCRs.
25. The appellants shall appear before the learned trial Court on 22/10/2025.
26. The fees of the learned Legal Aid Counsel be paid by the Assam State Legal Service Authority.
JUDGE JUDGE Comparing Assistant