The State Of Tripura v. Ochman Gani @ Saikat and Others

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HIGH COURT OF TRIPURA

AGARTALA

Crl. A. 50/2025

The State of Tripura

represented by the Secretary, Home Department, Government of Tripura.

----Appellant

Versus

1. Ochman Gani @ Saikat , son of Samsul Haque, resident of Sonapur, Singarpara, P.O. Rabindranagar, P.S. Sonamura, District- Sepahijala, Tripura.

2. Mamanul Islam @ Mamon Islam , son of Habibur Rahaman, resident of Sonapur, Singarpara, P.O. Rabindranagar, P.S.

Sonamura, District- Sepahijala, Tripura.

3. Suhelur Rahaman @ Suhel Hossain , son of Habil Miah, resident of Sonapur, Singarpara, P.O. Rabindranagar, P.S.

Sonamura, District- Sepahijala, Tripura.

----Respondents

For the Appellant(s) : Mr. Raju Datta, PP

For the Respondent(s) : Mr. AK Pal, Advocate Date of hearing & delivery of Judgment & Order : 21.01.2026

Whether fit for reporting : Yes

BEFORE

HON’BLE JUSTICE DR. T. AMARNATH GOUD

HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA

JUDGMENT(ORAL)

(Dr.T.Amarnath Goud, J)

Heard Mr. Raju Datta, learned Public Prosecutor, appearing for the appellant-State of Tripura. Also heard Mr. AK Pal, learned C ounsel appearing for the respondents.

2. The present appeal is preferred by the appellant-State assailing the judgment dated 06.07.2024 passed by the learned Special Judge (NDPS), Sepahijala Tripura, Sonamura, in connection with case No. Special (NDPS)

11 of 2024, whereby the respondents had been acquitted from the charge under Sections 20(b)(ii)(C)/29 of the NDPS Act.

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3. Facts leading to the present appeal are that, on the basis of a secret information, on 24.10.2023, the informant accompanied wi th the officials of Sonamura PS conducted search and raided at Singerper, Sunap ur Indo-Bangla Border area and during search they detained the respondents and recovered huge quantity of contraband articles (dry ganja) from th e possession of the accused-respondents. On the basis of a suo-mot u complaint, a specific case was registered against the accused-respon dents.

After completion of investigation, charge sheet was submitted against the accused respondents under Sections 20(b)(ii)(C), 29 of the NDPS Act.

Thereafter, learned Special Judge (NDPS), Sonamura, took cognizance of the offence against the accused-respondents and after supplying the prosecution papers, also framed charge against the accused-respondents to which the accused-respondents pleaded not guilty and claime d to be tried.

Accordingly, trial commenced. During trial, prosecution examined o nly five witness out of ten cited witnesses and exhibited some do cuments.

Subsequently, examination of the prosecution witnesses was cl osed and the accused respondents were examined under Section 313 Cr.P.C. wherein they denied all the incriminating materials brought against them and thereafter the learned trial Court by the impugned order acquitted the accused respondents from the charges leveled against them. Being aggrieve d, the appellant has filed the present appeal challenging the impugn ed 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-respondents and the same relates to a grave offence under NDPS Page 3 of 10

Act. Charge sheet was also submitted against the accused-respondent s but, the learned trial Court without giving any opportunity to t he prosecution witnesses closed the evidence and acquitted the accused-respo ndents from the charges leveled against them. 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 witho ut facing proper trial and giving reasonable opportunity to the prosecuti on agency.

Mr. Datta, learned PP has further submitted that notices were issued u pon the witnesses but, without waiting for the service report, l earned trial court whimsically closed evidence of the prosecution witnesses after examining only five witness and most erroneously acquitted the accused -respondents.

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 reli ance 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 06.07.2024 by affording reasonable opportunity to rest of the prosecution witnesses for their examination and cross-examination.

5. On the other hand, Mr. AK Pal, learned 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. Pal, l earned counsel has further submitted that on verbal submission of t he prosecution, learned trial court has closed the prosecution evidence. Mr. Datta, learned Page 4 of 10

counsel has also stated the prosecution has failed to es tablish its case hence urged to dismiss the appeal upholding the acquittal of the respondents.

6. We have gone through the case records and the orders contained therein.

7. The trial court after receipt of the charge-sheet, took cognizance of offence against the accused-respondents on 12.02.2024 and framed charge against the accused-respondents on 06.04.2024. After commencement of trial, summon was issued upon the prosecution witnesses. The learned trial Court by its order dated 06.04.2024 fixed the calender for examination of the witnesses on 28.05.2024, 29.05.2024 and 30.05.2024, but ou t of ten PWs, only three witnesses turned up on 29.05.2024. On 30.05.20 24 two witnesses turned up and since summons issued upon remaining witn esses did not return, learned trial court without issuing fresh summon fixed 10.06.2024 for examination of remaining PWs. On 10.06.2024 no witness turned up and service report was not received, and accordingly, evidence was closed fixing 29.06.2024 for examination of the accused under Section 313 Cr.P.C. On 06.07.2024, the learned trial court concluded the case acquitt ing the accused respondents from the charges leveled against them. For convenience, t he orders dated 06.04.2024, 28.05.2024, 29.05.2024, 30.05.2024, 10 .06.2024 and 06.07.2024, are reproduced here-in-below:

“06.04.2024

Custody accused persons namely Ochman Gani, Mamanul Islam and Suhelur Rahman are produced from J/C.

Ld. Counsel Mr. J. Uddin is present for the accused Ochmani Gani an d Ld. Counsel Mr. W.A. Choudhury is present for the accused persons namely Mamunul Islam and Suhelur Rahman.

Ld. Special PP Mr. M. Sen is present.

Heard both sides on the point of framing charge.

On perusal of the case record and upon hearing of Ld. Counse l sufficient materials are found available to frame charge u/s 20(b)(ii)(C)/29 of NDPS Act and accordingly charges are framed against the accused persons namely Ochman Gani, Mamanul Islam and Suhelur Rahman u/s 20(b)( ii)(C)/29 of NDPS Act to which they plead not guilty and claim to be tried.

Office is directed to issue summons upon all the CS listed witnesses except IO.

Ld. Special is also directed to produce the witnesses on the n ext schedule without fail as it is a custody trial.

Inform accordingly.

Fix 28.05.2024 for PWs(1 to 4)

Fix 29.05.2024 for PWs(5 to 7)

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Fix 30.05.2024 for PWs(8 to 10)

Accused persons are further remanded to J/C till 01.05.2024.”

“28.05.2024

Custody accused persons namely Ochman Gani, Mamanul Islam and Suhelur Rahman are produced from J/C.

Ld. Counsel Mr. J. Uddin is present for the accused Ochmani Gani an d Ld. Counsel Mr. W.A. Choudhury is present for the accused persons namely Mamunul Islam and Suhelur Rahman.

Ld. Special PP Mr. M. Sen is present.

Today the case was fixed for Pws.

No witness is present today.

Neither any summon returned regarding the witnesses.

To date fixed for Pws.

Accused persons are further remanded to J/C till 29.05.2024.”

“29.05.2024

Custody accused persons namely Ochman Gani, Mamanul Islam and Suhelur Rahman are produced from J/C.

Ld. Counsel Mr. J. Uddin is present for the accused Ochmani Gani an d Ld. Counsel Mr. W.A. Choudhury is present for the accused persons namely Mamunul Islam and Suhelur Rahman.

Ld. Special PP Mr. M. Sen is present.

Today the case was fixed for Pws.

Three witnesses namely Deepak Kumar, Pranab Kr. Roy and Dahije Kiran are p resent and they are examined as Pw-03, 04, 05 and discharged through VC.

To date fixed for Pws.

Accused persons are further remanded to J/C till 30.05.2024.”

“30.05.2024

Custody accused persons namely Ochman Gani, Mamanul Islam and Suhelur Rahman are produced from J/C.

Ld. Counsel Mr. J. Uddin is present for the accused Ochmani Gani.

Ld. Counsel Mr. W.A. Choudhury is present for the accused perso ns namely Mamunul Islam and Suhelur Rahman and filed a bail petition for the accused persons.

Ld. Special PP Mr. M. Sen is present.

Ld. Special PP raised strong objection to the bail prayer.

Upon hearing of both sides and on perusal of the record I fin d no new ground to allow the bail bond in favour of the accused persons.

Hence, in view of the Section 37 of NDPS Act the bail prayer is rejected.

Today the case was fixed for Pws.

Three witnesses namely Bulti Das and Indrajit Sil Sharma are present and they are examined as Pw-04 & 05 and discharged. Indirajit Sil Sharma is discharged through VC.

Today is the last day of this calendar for prosecution witnesses.

As most of the summons regarding the witnesses has not been returned, no further summon shall be issued from this court upon the witnesses and prosecution is directed to produce the remaining witnesses on the next schedule failing which the evidence of pr osecution witnesses will be closed as it is a case of custodial trial.

Inform.

Office is directed to issue fresh summon only upon the IO of this case.

Fix 10.06.2024 for Pws(1 to 4, 8 & 11)

Accused persons are further remanded to J/C till 10.06.2024.”

“10.06.2024

Custody accused person namely Ochman Gani, Mamanu Islam and Suhelur R ahaman are produced from J/C.

Ld. Counsel Mr. J. Uddin and W.A. Choudhury are present from the accused persons.

One bail petition filed for the accused persons namely Mamanu Islam and Suhelur Rahaman.

Ld. Special PP Mr. M. Sen is present.

Today the case was fixed for examination of prosecution witnesses.

No witness is present today.

Neither any summon returned.

On perusal of the record it appears that on the last occasion prose cution was given last chance for producing the witnesses with direction that if he fails the eviden ce of prosecution witnesses will be closed and he failed to produce the witnesses today.

So, having no other way, the court is of the opinion that the evidence of prosecution witnesses shall be closed as accused is in custody and giving another opportunity to the prosecution for producing witnesses will not be appropriate as several opportunities was given.

Heard Ld. Special P.P.

On verbal submission of the Ld. Special P.P. the evidence of prosecution witness is hereby closed.

Heard Ld. Special P.P. as well as defence counsel on the bail petition.

Upon hearing of both sides and on perusal of the record I fin d no new ground to allow the bail bond in favour of the accused persons.

Hence, in view of the Section 37 of NDPS Act the bail prayer is rejected.

Accused person is hereby directed to remain present on the ne xt date and furnish a bond of Rs.

50000/- each in compliance of Section 437A of Cr.P.C. on the next date without fail.

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Recall bailable warrant of arrest issued against the witnesses, if any.

Fix 29.06.2024 for examination of accused persons u/s 313 of Cr.P.C./ exec ution of bail. Accused persons are further remanded to J/C till 29.06.2024.”

“06.07.2024

Custody accused person namely Ochman Gani, Mamanu Islam and Suhelur Rahaman are produced from J/C.

Ld. Counsel Mr. J. Uddin and W.A. Choudhury are present from the accused persons.

Ld. Special PP Mr. M. Sen is present.

Today the case was fixed for argument/judgment.

Heard argument both sides at length.

Accordingly, Judgment is delivered in the open Court in a separate sheets of paper which is kept with the case record.

The operative part of the Judgment runs as follows:- In the result, the accused persons namely Ochman Gani @ Saikat, Mamanul Islam @ Mamon Islam, Suhelur Rahaman@ Suhel Hossain are hereby acquitted from the ch arge under Sections 20(b)(ii) (C)/29 of NDPS Act, 1985 as framed against them and they are set at liberty at once.

Their previous surety, if any, stands discharged.

Sonamura Police Court shall dispose the seized alamats, if any, after obse rving all formalities on expiry of period of appeal.

Thus, the case is disposed of on contest.

Make necessary entry in the CIS and TR.”

8. A court cannot automatically acquit an accused under the NDPS Act merely because the witnesses did not turn up. The courts have the power to compel the attendance of witnesses using various prov isions of the Criminal Procedure Code. The court must assess the entire eviden ce presented and determine if the prosecution has proven its case beyond a reasonable doubt, even in the absence of certain witnesses.

9. From the analysis of the record in hand, it is clear that immediately after getting the secret information on 24.10.2023, t he complainant conveyed the matter to his superior and sought for authorizing him to conduct the search and raid, subsequent to which he was authorized thereby by the authorization letter dated 24.10.2023 issued by SDPO, Sonamura, Sepahijala, and the communications were also recorded in the GD books being Sonamura PS GDE No. 25, dated 24.10.2023; GDE No.26, dated 24.10.2023; GDE No. 27, dated 24.10.2023; GDE No. 28 , dated 24.10.2023. It is also seen that on receipt of information, GDs were made and on apprehension of the contraband articles being transpo rted, the complainant opted for authorization from his superior by makin g GD which was accorded and in pursuance thereof, the search party apprehended the Page 7 of 10

accused-respondents and recovered the contraband from them and t he custody of the contraband from t he time of recovery to the time it reached the trial Court , stands sufficiently explained. The samples have been t aken and requisite seals have been affixed. It is clear that the samples wh ich were taken from the seized contraband had been sent for analysis and t he test report has confirmed that what was seized was contraband. Thus, all the mandatory provisions of N.D.P.S. Act , required in this case, have been complied with. Further, from the seizure memo, it is confirm ed that the contraband articles were seized from the possession of the accuse d- respondents. Further, it was the complainant himself to prove the prosecution papers in the trial, but the same cannot be exhibi ted since the complainant was not afforded with reasonable opportunity to d epose as witness before the learned trial court. The complainant was the mo st vital witness in the case but, facts remain, he was not afforded opportuni ty to depose before the learned court and without his examination, th e evidence was closed. To ensure appearance of a witness, the court uses legal mechanisms by rendering summon upon the witness and if the witness fails to appear after being served with a summons, the court can issue a ba ilable or non-bailable warrant to compel his/her attendance, but, in this case the learned trial court refrains itself from adopting such procedure rath er closed the evidence without securing evidence of the vital witness (complainant).

10. 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 Sec tions 67, 87, 230 and 242 of Cr.PC.

67. Service of summons outside local limits: When a Court desires that a sum mons issued by it shall be served at any place outside its local jurisdiction, it shall ordinar ily send summons in Page 8 of 10

duplicate to a Magistrate within whose local jurisdiction the person summoned res ides, 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 summo ns 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 o r will not obey the summons;

(b) if at such time he fails to appear and the summons is proved to hav e been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offere d 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 no t convicted under Section 229, the Judge shall fix a date for the examination of witn esses, and may, on the application of the prosecution, issue any process for compelling the attendan ce 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 Mag istrate does not convict the accused under section 241 the Magistrate shall fix a date for the exami nation of witnesses.

(2)The Magistrate may, on the application of the prosecution, issue a summon s 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, whi ch warrant immediate rectification to uphold the integrity of the judicial process. The c ases 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 t o ensuring justice, this Court notes with concern the Trial Court’s premature closure of the prosec ution’s evidence. The Apex Court’s pronouncements are unequivocal Shailendra Kumar (supra) m andates 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 p rosecution 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 app ears 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 summo ns 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 witn esses 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 warr ants 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 n o rigid outer limit can be prescribed for the conclusion of criminal proceedings, particular ly 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 e nsure all relevant evidence is brought forth and to intervene when necessary. This inherent ju dicial 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 un fortunate victim who is the actual sufferer and therefore, it is imperative for the State and the prosecu tion 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 respons ibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a no table piece of evidence or a conspicuous statement of any witness with a view to either s upport 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 i n the present Page 9 of 10

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 brou ght 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) reinforce s 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. Cons idered the materials on record. From the impugned order it appears that the Sub-Postmaster, Katihar Post O ffice 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 th e 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 su mmons 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 witness es 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 o f the said witnesses before the court and for that he may consider the exercise of his power u nder 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 no rms, 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 o ften a critical piece of evidence. The trial court’s duty to secure the presence of the witne sses 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 produ ced in support of the prosecution. This is the stage where the prosecution is to be given a fair an d 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 attendanc e upon the prosecution’s application. Finally, Section 87 of the Cr.P.C. provides the nece ssary legal mechanism, allowing the court to issue a warrant for a person’s arrest in addition to, o r in lieu of, a summons, if there is reason to believe the person has absconded or will not ob ey the summons, or fails to appear despite due service. The trial court’s inaction in utilizing th ese statutory powers to ensure a full and fair trial for the State led to a miscarriage of justice that cannot be sustained.”

11. 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 commi tted error in law in acquitting the accused-respondent without securing evi dence 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.

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12. In fine, the impugned judgment and order dated 06.07.2024 passed by the learned Special Judge(NDPS), Sepahijala District, Son amura, in case No. Special(NDPS) 11 of 2024, is hereby set-aside. Accordin gly, the matter is remanded back to the learned Special Judge(NDPS), Sepahijala District, Sonamura, with a direction to conduct a fresh trial b y 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 w itnesses, learned Court below shall deliver its judgment afresh. The entire exer cise 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-respondents are directed to surrender before the learned trial Court on or before 10.02.2026. Upon their surrend er, the learned trial Court may consider bail applications, if so, filed by th em, in accordance with law. It is needless to observe that, in the event the accus ed- respondents are on bail pending trial, the benefit shall be extended to them.

S.DATTA PURKAYASTHA,J DR.T. AMARNATH GOUD,J

SAIKAT KAR

Digitally signed by

SAIKAT KAR

Date: 2026.01.29

01:13:40 -08'00'