The State Of Tripura v. Alamgir Hossain and Another

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HIGH COURT OF TRIPURA

AGARTALA

Crl. A. 47/2025

The State of Tripura

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

----Appellant (s)

Versus

1. Alamgir Hossain , son of Rasid Miah of Indiranagar, Melaghar Char, P.S. Melaghar, District- Sepahijala, Tripura

2. Rasid Miah , son of Abdul Hamid of Indiranagar, Melaghar Char, P.S. Melaghar, District- Sepahijala, Tripura

----Respondent(s)

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

For the Respondent(s) : Mr. D. Bhattacharya, Sr. Adv.

Ms. R. Bhattacharya, Adv.

Date of hearing & delivery

of Judgment & Order : 21.01.2026

Whether fit for reporting : No

BEFORE

HON’BLE JUSTICE DR. T. AMARNATH GOUD

HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA

JUDGMENT & ORDER (ORAL)

(Dr.T.Amarnath Goud, J)

Heard Mr. Raju Datta, learned Public Prosecutor, appearing for the appellant-State of Tripura. Also heard Mr. Debalay Bhattacharya, learned senior counsel assisted by Ms. Reshmi Bhattacharya, learned counsel appearing for the accused-respondents.

2. The appellant-State, by means of filing the present appeal, under Section 419(1) of BNSS, has challenged the judgment and order dated 16.07.2024 passed by the learned Special Judge (NDPS), Sepahi jala Tripura, Sonamura, in connection with case No. Special (NDPS) 100 of 2023, whereby the accused-respondents have been acquitted from the charge un der Sections 20(b)(ii)(C)/25 of the NDPS Act.

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3. The facts leading to the present appeal are that on 01.09.202 3 at about 23:25 hours, acting on secret information, the complainant, accompanied by the Officer-in-Charge of Melaghar Police Station and ot her staff, conducted a raid and search at the residence of the accused, Rasid Miah.

During the search, they recovered two white printed sacks containin g 21.400 kg of dry ganja from his house. Based on a suo motu compl aint filed by the said coplainant, Melaghar P.S. Case No. 2023/MLG/066 was registered against the accused-respondents and taken up for investigat ion. After completion of the investigation, charge-sheet was filed against the accused- respondents for offences punishable under Sections 20(b)(ii)(C) and 25 of the NDPS Act. Subsequently, the learned Special Judge (NDPS), Sonamura, too k cognizance of the offence. After providing the necessary prosecution documents, the court framed charges against the accused-respondents, to which the accused-respondents pleaded not guilty and claim ed to be tried.

Accordingly, trial commenced. During trial, the prosecution examined 8[eight] witnesses and proved the exhibited documents. Thereafter, the examination of the prosecution witnesses was closed and the accu sed- respondents were examined under Section 313 Cr.P.C. wherein they denied all the incriminating materials brought against them and thereby the learned trial Court by the impugned judgment acquitted the accused- respon dents from the charge leveled against them on the ground that the prosecutio n has miserably failed to establish the charges as framed against the accused-res pondents beyond all reasonable doubts. Being aggrieved, the appellant has filed the present appeal challenging the impugned judgment and order of acquittal.

It appears from the judgment of the learned trial Court that the police personnel raided and searched the house of Rasid Miah and s aid dry Page 3 of 10

ganja was recovered and seized thereafter. But nowhere reflects the name o f another accused respondent, namely, Alamgir Hossain but framed the c harge against both the accused-respondents whereas in the first info rmation report, his name has been reflected.

4. Mr. Raju Datta, learned PP appearing for the appellant-State, has argued that the learned trial Court did not consider that the hug e 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-responden ts but, the learned trial Court without giving any opportunity to t he prosecution witnesses closed the evidence and acquitted the accused-respondent s from the charges leveled against them. Mr. Datta, learned PP has further submi tted that the learned trial Court did not consider the settled principle of law that no accused can be acquitted from criminal liability without facing p roper trial and giving reasonable opportunity to the prosecution agenc y. Mr. Datta, learned PP has further submitted that notices were issued upon the witnesses but, without waiting for the service report, learned trial court w himsically closed evidence of the prosecution witnesses after examining 8[eight] witnesses out of 11[eleven] summoned witnesses and most erroneously acquitted the accused-respondents. Mr. Datta, learned PP has further arg ued that many cases under NDPS Act exist where the accused persons were acquitted without providing a proper opportunity to the pro secution. 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 th e case for conducting fresh trial after setting aside the impugned ju dgment and order Page 4 of 10

of acquittal dated 16.07.2024 by affording reasonable opportun ity to rest of the prosecution witnesses for their examination and cross-examination.

5. On the other hand, Mr. Debalay Bhattacharya, learned senior counsel appearing for the accused-respondents has submitted that the learned trial court has rightly closed the prosecution evidence since t here was total failure on the part of the prosecution to secure attendance of the w itnesses.

Mr. Bhattacharya, learned senior counsel has also stated that the entire case is based on no evidence and hence urged for dismissal of the a ppeal upholding the order of acquittal of the respondents.

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

7. The trial court after receiving the charge-sheet took cognizance of offence on 11.12.2023 and framed charge against the accused-respo ndents under Sections 20(b)(ii)(c)/25 of the NDPS Acct, 1985 and after commencement of trial, summons were issued upon the prosecution witnesses No.1 to 11. The learned trial Court fixed the calender for examinat ion of the witnesses on 27.05.2024, 28.05.2024, 29.05.2024 and 30.05. 2024. On 27.05.2024, PW-1, Mijanur Rahman and PW-2, Rajjak Miah were examined.

On the following day, 28.05.2024, no prosecution witnesses appeared.

However, the Officer-in-Charge (O/C) of Melaghar P.S. submitted a letter to the learned trial Court stating that witnesses ASI Taium Hossain, ASI Kanulal Debnath, and W/C Hachina Begam were unable to attend as they were heavily engaged with a law and order situation and prayed for short adjour nment. On 29.05.2024, PW-3, Ningku Paul and P.W-4, Sanjit Debbarma were exami ned and cross-examined. Thereafter, on 30.05.2024, PW-5, namely Indrajit Sh il Sharma was examined but no service report was received and as such, the Page 5 of 10

learned trial Court fixed the case on 10.07.2024 and 11.07.202 4 respectively directing the prosecution to produce the witnesses on own accord, failing which the evidence of prosecution witnesses will be closed . On 10.07.2024, there witnesses, namely Subir Saha, Kanulal Debnath and Tayum H ossain were examined and cross-examined as PWs-6,7 & 8. On 11.07.2024, n o prosecution witnesses had been produced and by an applicati on praying for further opportunity for examining remaining three witnesses b ut the learned trial Court observed that examining the other witnesses will be no use as even after their examination, the prosecution cannot prove the case agains t the accused and rejected the said prayer of further opportunity for examinin g the remaining witnesses and ultimately, closed the chapter of exami ning prosecution witnesses and fixed the case on 12.07.2024 for e xamination of accused persons under Section 313 of Cr.P.C and the accused persons are directed to furnish bail bond of Rs.50000/- in compliance of Se ction 437A of Cr.P.C. on the next date without fail. For convenience, the orders date d 27.05.2024, 28.05.2024, 29.05.2024, 30.05.2024, 10.07.2024, 11.07.2024 and 12.07.2024 are reproduced here-in-below:

27.05.2024

Today the case record is listed for PWs.

Bailed out accused person namely Alamgir Hossain and Rasid Miah are present with their respective Ld. Counsel Mr. B. Kar.

Ld. Special P.P. Mr. M. Sen is present with two witnesses namely Mijanur Rahaman & Rajjak Miah are present and they are examined as PW-1 & PW-02 and discharged.

No another witness is present today.

Neither any summon returned.

To-date-fixed (28.05.2024) for PWs.

28.05.2024

Today the case record is listed for Pws.

Bailed out accused person namely Alamgir Hossain & Rasid Miah are present with their respective Ld. Counsel Mr. Sanjit Chakraborty.

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

No witness is present today.

Receive a message from O/C MLG PS said that ASI Taium Hossain, ASI Kanulal Debnath & W/C Hachina Begam all of witnesses MLG PS and they are unable t o attend in the Court due to badly engaged L/O duty and intimating that short adjournment.

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Prayer is allowed.

Keep it with the case record.

To-date-fixed (29.05.2024) for Pws.

29.05.2024

Today the case record is listed for PWs.

Bailed out accused person namely Alamgir Hossain and Rasid Miah are present with their respective Ld. Counsel Mr. B. Kar.

Ld. Special P.P. Mr. M. Sen is present with two witnesses namely Ningku Paul & San jit Debbarma and they are examined, Cross-examined and discharged.

No another witness is present today.

To-date-fixed (30.05.2024) for PWs.

30.05.2024

Today the case record is listed for Pws.

Bailed out accused person namely Alamgir Hossain & Rasid Miah are present with their respective Ld. Counsels.

Ld. Special P.P. Mr M. Sen is present with two witness namely Indrajit Shil Sharm a and he is examined, Cross-examined as PW-05 though V/C and discharged.

No another witness is present today.

No service report received regarding the summons.

One petition is filed by the Ld. Defence Counsel for releasing the seized original documents of one Melaghar Municipal Council Pass Book, Ration Card and Aadhar Card of Rashid Miah on bail.

Heard Ld. Special PP and he raised no objection to the prayer.

Hence the above mentioned original documents are hereby released on bail on furnishing of xerox copy of the documents with certification.

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

As no summons returned regarding the witnesses, no further summons shall be issued from this court prosecution is directed to produce the witnesses on his own acc ord failing which the evidence of prosecution witnesses will be closed.

//Inform.

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

Fix 10.07.2024 for PWs(1,4,5)

Fix 11.07.2024 for PWs (6, 8, 12 & 13).

10.07.2024

Today the case record is listed for Pws.

Bailed out accused person namely Alamgir Hossain & Rasid Miah are present with their respective Ld. Counsel Mr. Sanjit Chakraborty.

Ld. Special P.P. Mr M. Sen is present with three witness namely Subir Saha, Kanulal Debnath and Tayum Hossain and they are examined, Cross-examined as PW-06, 07 & 08 and discharged.

No another witness is present today.

To-date-fixed (11.07.2024) for Pws.

11.07.2024

Today the case record is listed for Pws.

Bailed out accused person namely Alamgir Hossain & Rasid Miah are present with their respective Ld. Counsel Mr. Sanjit Chakraborty.

No witness is present today.

Neither any summon returned regarding the witnesses.

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

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On the last occasion prosecution was given last chance for producing the remaini ng witnesses with direction that he fails to produce the remaining witnesses, the evidence of prosecution witnesses will be closed.

Prosecution has submitted one prayer for giving another opportunity for examining three witnesses as they are essential witnesses.

On perusal of the record it appears that two seizure witnesses have alread y been examined and they did not support the prosecution case and examining the other witnesses will be no use as even after their examination the prosecution cannot prove the case against the accused. Hence in my opinion no purpose will be fulfilled by ex amining other witnesses.

Hence, the prayer of prosecution is hereby rejected.

Hence, 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 on the next date without fail.

Fix 12.07.2024 for examination of accused person u/s 313 of Cr.P.C/execution of bail bond.

12.07.2024

Today the case record is listed for examination of accused person u/s 313 of Cr.P.C Bailed out accused person namely Alamgir Hossain & Rasid Miah are present wit h their respective Ld. Counsel Mr. Sanjit Chakraborty.

Accused persons have been examined u/s 313 of Cr.P.C. to which he denied all the evidences of prosecution witnesses and also declined to adduce any witness on their behalf.

Accused is directed to furnish bail bond of Rs. 50000/- in compliance of Section 437A of Cr.P.C on the next date without fail.

Fix 15.07.2024 for argument/execution of bail bond.

8. A court cannot automatically acquit an accused under the ND PS Act merely because the witnesses did not turn up. Courts have t he power to compel the attendance of witnesses using various provision s of the Criminal Procedure Code. The court must assess the entire evidence present ed and determine if the prosecution has proven its case beyond a reasonabl e doubt, even in the absence of certain witnesses.

9. This court in Criminal Appeal 4 of 2025 has relatably deal t with similar and identical issue-in-question, raised in this ap peal, 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 herei n below Sections 67, 87, 230 and 242 of Cr.PC.

67. Service of summons outside local limits: When a Court desires that a s ummons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily s end summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, o r 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 arr est – Page 8 of 10

(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 be en duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered fo r 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 Magistrate does not convict the accused under section 241 the Magistrate shall fix a date for the examinati on 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 f or further cross examination.

[17] The learned Public Prosecutor’s submission regarding the alarmin g number of 145 acquittals in NDPS cases without proper opportunity to the prosecution and the subseq uent resignations of public prosecutors further underscores the systemic issues at play, which warrant i mmediate 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 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 an d other crucial witnesses, even resorting to coercive measures like warrants, to prevent the frustration of ju stice. This critical responsibility was evidently not discharged in the present case, as th e 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 sta ted above, it appears that accused wants to frustrate the prosecution by unjustified means and it appe ars that by one way or the other the Addl. Sessions Judge as well as the APP have not taken an y interest in discharge of their duties. It was the duty of the Sessions Judge to issue summon s 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 wi tnesses 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 cri me cannot be left in lurch.

[19] Further, the decision to terminate the trial due to the mere l apse of time stands contrary to the dictum in P. Ramachandra Rao (supra), which firmly establishes that no r igid outer limit can be prescribed for the conclusion of criminal proceedings, particul arly if such termination stifles the prosecution’s ability to prove its case. The Trial Court’s role, as clarifie d 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 respon sibility 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 th e unfortunate victim who is the actual sufferer and therefore, it is imperative for the State and the pros ecution to ensure that no stone is left unturned. It is also the equal, if not more, the duty an d responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that th e 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 cl arify the position or act Page 9 of 10

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 recti fy the situation appropriately. The whole scheme of the Code of Criminal Procedure envi sages foolproof system in dealing with a crime alleged against the accused and thereby ensure that the guilty do es 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) re inforces 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. Conside red 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 spi te 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 accordi ng 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 pe rformed by the party who cites a witness is to deposit the requisite and if on his pra yer 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 th e instant case, upon the prayer of the party summons were issued and served upon the wi tnesses but they ignored the summons and failed to appear before the court. In such circumstances, the court i s to take steps for securing their presence before the court as contemplated under the Cr. P.C. The ld. Magis trate is, accordingly, directed to take appropriate steps to secure the presence of the sai d witnesses before the court and for that he may consider the exercise of his power under Sect ion 87 of the Cr. P.C. 1973.

[21] The cumulative effect of these judicial pronouncements leads this Co urt 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 Sub stances 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 c ourt 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 com plete opportunity. Furthermore, Section 230 of the Cr.P.C. expressly mandates the judge to fix a date for the examin ation of witnesses and to issue process for compelling their attendance upon the pro secution’s application. Finally, Section 87 of the Cr.P.C. provides the necessary legal mechanism, allow ing 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 app ear 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 leg al 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-respondents without securing evide nce of the Page 10 of 10

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 16.07.2024 passed by the learned Special Judge (NDPS), Sepahijala Tripura, Son amura, in Special (NDPS) 100 of 2023, 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 upo n rest of the prosecution witnesses. However, it is made clear that reasonable opportunity shall be afforded to the prosecution witnesses. It is furt her 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 -respondents are directed to surrender before the learned trial Court on or before 30.01.2026. Upon their surrender, the learned trial Court may consider bail application, if so, filed by them, in accordance with law. It is needless t o observe that, in the event the accused - 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: 2026.01.21 23:58:49

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