{"id":387361,"date":"2026-06-17T11:30:53","date_gmt":"2026-06-17T06:00:53","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=387361"},"modified":"2026-06-17T11:20:36","modified_gmt":"2026-06-17T05:50:36","slug":"gauhati-hc-alters-conviction-in-ganja-seizure-case-from-15-years-to-3-5-years","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2026\/06\/17\/gauhati-hc-alters-conviction-in-ganja-seizure-case-from-15-years-to-3-5-years\/","title":{"rendered":"Gauhati High Court Reduces NDPS Conviction from Commercial to Intermediate Quantity Due to Lack of Proof of Joint Possession"},"content":{"rendered":"
\n

Gauhati High Court:<\/span> In connected appeals against rigorous imprisonment for 15 years for allegedly possessing 21.1 kg of contraband, the Division Bench of Michael Zothankhuma*<\/span><\/span> and Kaushik Goswami, JJ.<\/span>, held that, although the prosecution had proved that the appellants were in conscious possession of the ganja recovered from their respective bag\/sack, it had failed to prove beyond reasonable doubt that they had jointly possessed or transported the total quantity of 21.1 kg recovered under the 2 seizure lists. The Court held that, if the seized articles were considered separately as per the 2 seizure lists, they could not be said to be of commercial quantity. Accordingly, the conviction under Section 20<\/a>(b<\/span>)(ii<\/span>)(C), Narcotic Drugs and Psychotropic Substances Act, 1985<\/a> (NDPS Act) was altered to Section 20(b<\/span>)(ii<\/span>)(B), and the sentence was modified accordingly.<\/p>\n

Also Read:<\/span> Cal HC: Driver Not in Constructive Possession of Passenger’s Contraband | SCC Times<\/a><\/p>\n

Background<\/h3>\n

The present appeals arose from a common judgment and order passed by the Special Judge, Bongaigaon, convicting the 3 appellants under Section 20<\/a>(b<\/span>)(ii<\/span>)(C), NDPS Act<\/a>, and sentencing each of them to undergo rigorous imprisonment for 15 years and to pay a fine of ₹1 lakh, with a further term of simple imprisonment in default of payment of fine.<\/p>\n

The prosecution case was that the appellants were apprehended by the police at New Bongaigaon Railway Station upon their arrival by the Deogarh Express train. During the search, a blue trolley bag carried by appellant Suraj Kumar Roy and a plastic sack carried by the other 2 appellants were found to contain a total of 21.1 kg of ganja. The trolley bag allegedly contained 10.21 kg of ganja, while the plastic sack allegedly contained 10.8 kg.<\/p>\n

Aggrieved by their conviction and sentence, the appellants preferred the present appeals.<\/p>\n

Analysis, Findings and Decision<\/h3>\n

At the outset, the Court examined the evidence of PWs 1 and 2, who were tea vendors at New Bongaigaon Railway Station. PWs 1 and 2 deposed that on 13 February 2022, at about 1.00 p.m. to 1.40 p.m., the Deoghar Express arrived at the New Bongaigaon Railway Station and the GRPF personnel boarded the train and conducted a search operation, during which 3 persons carrying a trolley bag and a sack containing suspected ganja were apprehended. They were also made seizure witnesses. In their cross-examination, PWs 1 and 2 stated that they could not say from where the GRPF personnel had recovered the trolley bag and the sack containing the suspected ganja. They also stated that they did not know the names of the GRPF personnel who had boarded the train or prepared the seizure lists. They further stated that the Deoghar Express’s stoppage time at New Bongaigaon Railway Station was 2 minutes.<\/p>\n

The Court next considered the evidence of PW 3, a tea stall owner at Platform 1, New Bongaigaon Railway Station. The Court noted that the evidence of PW 3 was similar to that of PWs 1 and 2. PW 3 stated that he was also made a seizure witness to the seizure of the trolley bag and the plastic sack containing suspected ganja. PW 3 further stated that he did not know from where and from whom the GRPF personnel had recovered the suspected ganja. He also stated that he had seen the GRPF personnel measuring the suspected ganja.<\/p>\n

The Court then examined the evidence of PW 4, the in charge of the GRPF at New Bongaigaon Railway Station. PW 4 deposed that secret information had been received that ganja was being transported in Coach No. B-1 of the Deoghar Weekly Express. After recording the information and obtaining authorisation, PW 4, along with his staff, boarded the train and conducted a search. During the search, he found 2 appellants carrying a purple plastic sack and appellant Suraj Kumar Roy carrying a blue trolley bag. According to PW 4, they were moving towards another coach to avoid being searched. Upon search, suspected ganja was found in the purple plastic sack and the blue trolley bag. The appellants and the recovered articles were brought out of the train, and PW 6 was informed. PW 6 thereafter arrived and measured the seized articles in the presence of witnesses. The suspected ganja recovered from the purple plastic sack weighed 10.8 kg and that recovered from the blue trolley bag weighed 10.21 kg.<\/p>\n

In his cross-examination, PW 4 stated that he had not seized any train tickets from the appellants. He further stated that the appellants belonged to different States and were not related. PW 4 also stated that 1 copy of the train ticket in the name of Suraj Kumar Roy was for Coach No. B-1, Seat No. 19, Upper Berth, while another copy of a train ticket appeared to be in the names of Bipin Kumar and Vira Mahato for Coach No. S-2, Seat Nos. 8 and 6.<\/p>\n

The Court next considered the evidence of PW 5, a retired Joint Director of the Forensic Science Laboratory, Assam, who deposed that 2 exhibits had been received for examination, and both tested positive for ganja.<\/p>\n

The Court also examined the evidence of PW 6, the officer in charge of Bongaigaon GRPS and the investigating officer. PW 6 deposed that he had received the FIR submitted by PW 4 and had taken up the investigation. Upon recording the statement of the informant, he proceeded to the New Bongaigaon GRPS Investigation Centre. The suspected ganja was measured and found to weigh 21 kg. PW 6 recorded the statements of witnesses, visited the place of occurrence, prepared the seizure lists and, upon questioning the appellants, was informed that they had purchased 21 kg of ganja worth ₹31,500 from 2 unknown persons. PW 6 also prepared an inventory of the seized articles and sent the samples to the FSL for examination.<\/p>\n

The Court further noted the evidence of PW 7, who had submitted the charge-sheet against the appellants under Sections 20<\/a>(b<\/span>)(ii<\/span>)(C) and 29<\/a>, NDPS Act<\/a>.<\/p>\n

The Court also took note of the statements of the appellants under Section 313<\/a>, Criminal Procedure of India, 1973<\/a> (CrPC), wherein they denied involvement with the seized ganja. The Court specifically noted that appellant Suraj Kumar Roy denied knowing appellants Bipin Kumar and Vira Mahato and that the latter 2 similarly denied knowing Suraj Kumar Roy.<\/p>\n

Also Read:<\/span> DHC: Mixed Ganja does not Include Leaves and Stalks | SCC Times<\/a><\/p>\n

Upon appreciation of the evidence, the Court observed that none of the seizure witnesses, namely PWs 1, 2 and 3, had seen the place from where the GRPF personnel had recovered the trolley bag and the sack containing the ganja and that they were present at the time of seizure conducted on the railway platform. The Court further observed that the evidence of PWs 1, 2, and 3 showed that the ganja had been recovered from the trolley bag, and the sack recovered from the appellants. Though the evidence of PW 3 in his cross-examination was to the effect that he did not know from where and from whom the suspected ganja had been recovered, the Court was of the view that the evidence of PWs 1, 2 and 3 in their examination-in-chief proved that the ganja had been recovered from the trolley bag held by Suraj Kumar Roy and the purple plastic sack carried by the other 2 appellants.<\/p>\n

The Court observed that PW 4 was the only prosecution witness who had boarded the train and detained the appellants and their luggage. According to PW 4, Suraj Kumar Roy was carrying the blue trolley bag while the other 2 appellants were carrying the purple plastic sack. The Court found that there was nothing in the evidence of the prosecution witnesses to show that the appellants were acting together or that the ganja recovered from 1 bag was jointly owned by the other appellants.<\/p>\n

The Court rejected the challenge to the search and seizure procedure. The Court observed that there was no bar for persons to be present on a train prior to its movement and that a stationary train could not be regarded as a closed space. Considering that the Deoghar Express halted at New Bongaigaon Railway Station for only about 2 minutes, the Court found no infirmity in the appellants and their luggage being brought down to the railway platform for search and seizure. Referring to Jothi<\/span> v. State<\/span>, 2025 SCC OnLine SC 2774<\/a>, the Court observed that mere absence of independent witnesses or procedural irregularities would not be fatal unless they affected the integrity of the seized substance or the identity of the samples.<\/p>\n

The Court also rejected the contention that the seized articles had not been kept in proper custody after seizure. Referring to the evidence of PW 6, the Court noted that 2 seizure lists and an inventory of the seized articles had been prepared and that the application for certification of the correctness of the inventory, photographs and samples had been exhibited.<\/p>\n

The Court did not attach much importance to the statement of PW 6 in cross-examination that he had not physically seized the suspected ganja from the appellants. The Court noted that PW 4 had recovered the suspected ganja from the possession of the appellants, had apprehended them in the train and brought them to the platform, after which PW 6 arrived and seized the ganja on the railway platform.<\/p>\n

The Court further considered the objection regarding non-compliance with Sections 41<\/a> and 42<\/a>, NDPS Act<\/a>. Upon examining the Government Notifications and the authorisation letter issued under Section 41(2), the Court found that PW 4 had the authority to conduct the search of the train. The Court further observed that, having regard to the 2-minute stoppage of the train and the movement of passengers during that period, it could not be said that the train was a closed space or that PW 4 lacked the authority to conduct the search.<\/p>\n

The Court held that the evidence established that Suraj Kumar Roy had been carrying the blue trolley bag and that the other 2 appellants had been carrying the purple plastic sack from which the ganja was recovered. The prosecution had therefore established the foundational facts showing that the appellants were in conscious possession of the ganja recovered from their respective bags, shifting the burden under Section 35<\/a>, NDPS Act<\/a>. The Court further held that there was nothing to show non-compliance with Section 55<\/a>, NDPS Act<\/a>, particularly as PW 6 himself was the Officer-in-charge, and referred to Gurbax Singh<\/span> v. State of Haryana<\/span>, (2001) 3 SCC 28<\/a>, to observe that Sections 52<\/a>, 55<\/a> and 57<\/a>, NDPS Act<\/a> are directory and not mandatory. The Court found that the appellants had failed to discharge the burden cast upon them to prove their innocence.<\/p>\n

However, the Court found that there was no document or evidence to show that the appellants had acted together or had joint ownership of the seized articles. The Court specifically relied upon the evidence of PW 4 regarding the separate train tickets and the statements of the appellants under Section 313 CrPC denying acquaintance with one another. The Court held that the evidence of PW 4 gave rise to an inference that Suraj Kumar Roy had no connection with the other 2 appellants and that it could not be said with certainty that all 3 appellants had jointly transported the 2 seizures of ganja made under the 2 seizure lists. The Court therefore held that the prosecution had failed to prove beyond reasonable doubt that the appellants had jointly possessed or transported the total quantity of 21.1 kg of ganja. However, the prosecution had proved that Suraj Kumar Roy had consciously possessed and transported 10.21 kg of ganja recovered from the blue trolley bag and that Bipin Kumar and Vira Mahato had consciously possessed and transported 10.8 kg of ganja recovered from the purple plastic sack. Since the 2 seizures had to be considered separately, neither quantity constituted commercial quantity.<\/p>\n

Accordingly, the Court altered the conviction from Section 20<\/a>(b<\/span>)(ii<\/span>)(C) to Section 20<\/a>(b<\/span>)(ii<\/span>)(B), NDPS Act<\/a>. Suraj Kumar Roy was held guilty of possession of 10.21 kg of ganja and Bipin Kumar and Vira Mahato were held guilty of possession of 10.8 kg of ganja. Each appellant was sentenced to undergo rigorous imprisonment for 3½ years and to pay a fine of ₹1 lakh, with simple imprisonment for 6 months in default. The judgment and sentence of the Special Judge were modified to the said extent and the appeals were disposed of.<\/p>\n

Also Read:<\/span> NDPS Judgments 2025: Key Supreme Court & High Court Rulings | SCC Times<\/a><\/p>\n

[Bipin Kumar<\/span> v. State of Assam<\/span>, Crl.A. No. 171 of 2023, decided on 28-4-2026<\/span>]<\/p>\n

* Judgment authored by Justice Michael Zothankhuma.<\/span><\/strong><\/p>\n

Advocates who appeared in this case in Crl.A. 171\/2023:<\/p>\n

For the appellant:<\/span> M Pathak, S Das, P K Das, Advocates<\/p>\n

For the respondent:<\/span> PP, Assam<\/p>\n

Advocates who appeared in this case in Crl.A. 219\/2023:<\/p>\n

For the appellant:<\/span> S. Mitra, Advocate<\/p>\n

For the respondent:<\/span> R.R. Kaushik, APP, Assam<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The Court altered the conviction from Section 20(b)(ii)(C) to Section 20(b)(ii)(B), NDPS Act, after the prosecution failed to prove joint possession of the total quantity of ganja recovered under 2 seizure lists and, treating the seizures separately and below commercial 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