Patna High Court
Bihari Lal vs The State Of Bihar on 20 July, 2026
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4098 of 2024
Arising Out of PS. Case No.-26 Year-2018 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- East Champaran
======================================================
Bihari Lal, Son of Sukhdev Mahto, Resident of Village- Hasanpur, P.O.+ P.S.-
Chainpur, District- East Champaran
... ... Appellant/s
Versus
1. The State of Bihar
2. The Union of India Through Prakash Ram, Intelligence officer, NCB, Patna,
Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sunil Kumar No.III, Adv.
Mr. Bijendra Kumar, Adv.
Mr. Raki Alam, Adv.
For the State : Ms. Anita Kumari Singh, APP
For the UOI : Mr. Anand Kumar Ojha, Sr. CGC
Mr. Brajesh Kumar Pandey, CGC
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 20-07-2026
Heard Mr. Sunil Kumar No. III, learned counsel for
the appellant, Ms. Anita Kumari Singh, learned APP for the
State and Mr. Anand Kumar Ojha, learned senior CGC for the
Union of India.
2. The instant appeal has been preferred against the
judgment of conviction dated 05.07.2024 and the consequent
order of sentence dated 09.07.2024 passed by the learned
Exclusive Special Judge-I, NDPS, East Champaran, Motihari, in
NDPS Case No. 26 of 2018 arising out of NCB Case No.
-NCB/PZU/V/26/2018, whereby and whereunder the appellant
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has been convicted for the offences punishable under Sections
20(b)(ii)(C) and 23(c) of the Narcotic Drugs and Psychotropic
Substances (NDPS) Act (in short, 'NDPS Act'). The appellant
has been sentenced to undergo rigorous imprisonment for ten
years with a fine of Rs. 1,00,000/- (Rupees One Lakh) for the
offence under Section 20(b)(ii)(C) of the NDPS Act and in
default of payment of fine, he has been directed to undergo
simple imprisonment for three months. He has been further
sentenced to undergo rigorous imprisonment for ten years with a
fine of Rs. 1,00,000/- (Rupees One Lakh) for the offence under
Section 23(c) of the NDPS Act and in default of payment of
fine, he has been directed to undergo simple imprisonment for
three months. Both the sentences have been directed to run
concurrently.
Prosecution story :
3. On 10.05.2018 at about 18:00 hours, the
Narcotics Control Bureau (NCB), Patna, received the
information from the 47th Battalion, SSB, Pantoka, that one
person had been intercepted with 10 kilograms of suspected
Charas. Upon the request of the SSB authorities, the Zonal
Director, NCB, Patna, constituted a team which proceeded from
the NCB office at Patna at about 20:00 hours on 10.05.2018 and
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reached 47th Battalion, SSB, Pantoka at about 10:30 hours on
11.05.2018.
3
.1. The prosecution alleged that Sh. Jayant
Panday, HC/GD, 47th Battalion, SSB, informed the NCB team
that acting on specific intelligence, the SSB had intercepted one
Bihari Lal, aged about 55 years, near Station Road, Ramji
Chowk, Raxaul, on 10.05.2018 at about 16:15 hours, in the
presence of two independent witnesses namely Mukesh Mandal
and Nandu Sah. After compliance with Section 50 of the NDPS
Act, 1985, the accused/appellant was searched leading to the
recovery of 20 rectangular slabs wrapped in brown adhesive
tape and concealed in a black laptop bag. Upon opening the
packets, a brown semi-solid resinous substance, suspected to be
Charas, was found. The accused/appellant allegedly admitted
that the recovered substance was Charas and on weighing, the
total quantity was found to be 10 kilograms (gross). Thereafter,
the accused, the seized contraband and the independent
witnesses were taken to the 47th Battalion, SSB, Pantoka, for
reasons of safety and security.
3.2. At the SSB camp, Prakash Ram, Intelligence
Officer, NCB, tested small quantities drawn from each slab
using the Drug Detection (DD) Kit in the presence of the
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independent witnesses and members of the SSB and NCB
teams. The test allegedly yielded a positive result for Charas.
The entire consignment, weighing 10.000 kilograms (gross),
was thereafter seized. Two representative samples of 25 grams
each were drawn, sealed with the departmental seal, and marked
AS-1 and AS-2. The remaining 20 slabs were marked P-1 to P-
20, repacked in the same black laptop bag, wrapped in markin
cloth, sealed with Departmental Seal No. NCB-02, and marked
as LOT-A. The signatures of the seizing officer, the accused,
and the independent witnesses were obtained on all the sealed
packets.
3.3. The prosecution further alleged that a search-
cum-seizure list and test memo in triplicate were prepared on
the spot, and the facsimile of Departmental Seal No. NCB-02
was affixed thereto. The search and seizure proceedings were
completed peacefully at about 13:30 hours on the same day,
without causing any inconvenience or hurting the religious
sentiments of any person.
4. On the basis of the complaint petition filed by
the Intelligence Officer, NCB, Patna, a case bearing NCB Case
No. -NCB/PZU/V/26/2018 was registered under Sections 8 and
20(b)(ii)(C) of the NDPS Act against the appellant, which set
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the criminal law in motion.
5. After investigation, on 16.11.2018, cognizance of
the offences punishable under Sections 20(b)(ii)(C) and 23(c) of
the NDPS Act was taken against the appellant.
6. The appellant stood charged with the offences
punishable under Sections 20(b)(ii)(C) and 23(c) of the NDPS
Act and the charges were read over and explained to him in
Hindi, to which he pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution examined
altogether five witnesses who are as under :
Rank Name Nature of Evidence
PW-1 Jayant Pandey SSB Official
PW-2 Parmanand Singh NCB official
PW-3 Prakash Ram Complainant (NCB official), I.O.
PW-4 Manoj Kumar Yadav NCB official (Godam Sahayak)
PW-5 Rajan Kumar NCB official
8. In addition to the above mentioned ocular
evidence, the prosecution also proved the following documents
and got them marked as exhibits :-
Sr. Exhibit Description Proved
No No. by/Attested by
1. Exhibit-1 Notice u/s 50 of the NDPS Act. PW-1
2. Exhibit-2 Proforma for seizure report. PW-1
3. Exhibit-3 Personal Search Memo. PW-1
4. Exhibit-4 Proforma for intercepted goods. PW-1
5. Exhibit-5 List of SSB personnel involved in PW-1
procedure.
6. Exhibit-6 Application for handing over the accused PW-1
to NCB personnel
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7. Exhibit-7 Search-cum-seizure list in 5 pages PW-3, PW-1
8. Exhibit-8 Requisition for medical examination PW-1
9. Exhibit-9 Signature of Parmanand Singh on PW-2, PW-3
voluntarily statement of accused Bihari
Lal
10. Exhibit-9/1 Signature of PW-2 Parmanand Singh on PW-2, PW-3
statement of independent witnesses
11. Exhibit-10 Notice u/s 67 of the NDPS Act to Bihari PW-3
Lal, signed by Prakash Ram
12. Exhibit-11 Self Statement of Bihari Lal in seven
sheets u/s 67 of the NDPS Act.
13. Exhibit-12 Notice to independent witness Mukesh PW-3
Mandal u/s 67 NDPS Act by Carbon
processing
14. Exhibit-13 Notice to independent witness Nandu PW-3
Sah u/s 67 of the NDPS Act by Carbon
processing
15. Exhibit-14 Statement of independent witness Nandu PW-2, PW-3
Sah which is signed by both independent
witnesses and Parmanand Singh, I.O and
the witness Prakash Ram
16. Exhibit-15 Arrest Memo of Bihari Lal PW-3
17. Exhibit-16 Jama Talashi of Bihari Lal PW-3
18. Exhibit-17 Forwarding the sample to Chemical PW-3
Laboratory, Custom House, Kolkata
19. Exhibit- Chemical Examination Report Certified copy
17/1
20. Exhibit-18 Report of other NDPS case against Certified copy
Bihari Lal registered in Mundka Police
Station, Delhi.
21. Exhibit-19 Godown Receipt/ Malkhana receipt PW-3
22. Exhibit-20 Report u/s 57 of the NDPS which is in PW-3
computer typing which is signed by him
and T.N. Singh
23. Exhibit-21 Notice regarding arresting of Bihari Lal PW-3
to his nephew
24. Exhibit-22 Notice to SHO, Chainpur, East PW-3
Champaran, regarding arresting of Bihari
Lal
25. Exhibit-23 Investigation report which is in nine PW-3
sheets
26. Exhibit-24 Investigation report which is signed by Certified copy
J.M. Sri Sanjay Kumar VI
27. Exhibit-25 Photograph of sample PW-3
28. Exhibit-26 Certificate of destruction
29. Exhibit-27 Godown entry no. 93 of page 95 in PW-3
Godown Register
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9. After completion of the prosecution evidence, the
statement of the appellant was recorded by the trial court under
Section 313 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’). The appellant denied the material circumstances
appearing against him in the prosecution evidence and stated
that he was innocent and had falsely been implicated in the
present case. He pleaded innocence.
10. The appellant did not adduce any oral evidence
or documentary evidence in his defence.
11. While convicting the appellant for the offences
under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act, the
learned trial court mainly placed reliance upon the testimony of
the prosecution witnesses and alleged recovery of contraband
from the possession of the appellant.
Submissions on behalf of the Appellant:
12. The appellant’s counsel contended that the
prosecution had committed a complete breach of Sections 42
and 50 of the NDPS Act. It was argued that the samples
examined by the FSL, Kolkata, and relied upon by the trial court
for convicting the appellant, were not drawn before a
Magistrate. Consequently, there was a clear violation of Section
52A of the NDPS Act.
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12.1. It was further submitted that the mandatory
safeguards under Section 50 of the NDPS Act were not
followed. Although Exhibit-1 was produced as a notice
purportedly issued under Section 50, its authenticity was
disputed. Learned counsel also pointed to material
contradictions in the testimony of PW-1, the sole witness
examined to establish compliance with Section 50, thereby
rendering the alleged compliance doubtful.
12.2. Lastly, it was argued that the prosecution
failed to examine the two independent witnesses who had
allegedly participated in every stage of the search, seizure, and
sampling process. No explanation was provided for their non-
examination, thereby weakening the prosecution’s case.
Submissions on behalf of the Respondent:
13. In response, the learned Senior Central
Government Counsel (CGC) appearing for the NCB contended
that there was no violation of either Section 42 or Section 50 of
the NDPS Act. It was submitted that representative samples of
the seized contraband were drawn only after obtaining
permission from the trial court. The learned Senior CGC further
argued that even if there had been any procedural irregularity
under Section 52A, such non-compliance would not, by itself,
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vitiate the prosecution in view of the principles laid down by the
Hon’ble Supreme Court in its recent decisions.
13.1. It was also submitted that the prosecution had
successfully established the foundational facts necessary to
invoke the statutory presumptions under Sections 35 and 54 of
the NDPS Act relating to culpable mental state and conscious
possession. According to the respondent, the appellant failed to
discharge the burden of rebutting these presumptions.
13.2. The learned Senior CGC lastly argued that the
non-examination of the independent witnesses was not fatal to
the prosecution’s case, as the oral and documentary evidence
adduced before the trial court was cogent, credible, and
sufficient to sustain the conviction.
Consideration and Analysis :
14. I have considered the submissions advanced on
behalf of both parties and carefully examined the impugned
judgment, the evidence led by the prosecution, and the
statement of the appellant.
15. The appellant was prosecuted for offences
punishable under Sections 20(b)(ii)(C) and 23(c) of the NDPS
Act on the allegation that he was trafficking 10 kilograms of
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charas from Nepal into India. According to the prosecution, the
contraband consisted of twenty rectangular packets concealed
inside a black laptop bag carried by the appellant.
16. As per the complaint lodged by the NCB, on
10.05.2018 at approximately 4:15 p.m., the appellant was
intercepted by officials of the SSB near Station Road, Ramji
Chowk, Raxaul. The prosecution alleged that he was searched in
the presence of two independent witnesses, namely Nandu Sah
and Mukesh Mandal, after due compliance with Section 50 of
the NDPS Act. During the search, twenty rectangular brown
slabs of charas wrapped in brown adhesive tape were allegedly
recovered from the black laptop bag in his possession.
17. Following the recovery, the appellant was taken
to the office of the 47th Battalion, SSB, Pantoka. Information
regarding his apprehension and the seizure of the suspected
contraband was immediately conveyed to the NCB, Patna,
whereupon a team of NCB officials was constituted and
dispatched to Pantoka for further action.
18. The NCB team reached the SSB office at about
10:30 a.m. on 11.05.2018. After being briefed by Head
Constable Jayanat Pandey, the officials conducted a preliminary
examination of the seized substance using a Drug Detection Kit
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in the presence of the independent witnesses. The substance
allegedly tested positive for charas.
19. Thereafter, two representative samples
weighing 25 grams each were drawn from the seized substance
and marked as AS-1 and AS-2. The remaining contraband,
contained in the recovered laptop bag, was marked as Exhibits
P-1 to P-20. All seized articles were sealed using departmental
seal No. NCB-02.
20. According to the prosecution, the independent
witnesses signed all the relevant documents pertaining to seized
articles. A search-cum-seizure list and test memos in triplicate
were prepared, bearing the facsimile impression of departmental
seal No. NCB-02. The search and seizure proceedings
concluded at approximately 1:30 p.m. on the same day.
21. Thereafter, statements of the independent
witnesses as well as that of the appellant were recorded. On
finding sufficient grounds to believe that offences under
Sections 8 and 20(b)(ii)(C) of the NDPS Act had been
committed, the appellant was formally arrested on 11.05.2018 at
about 6:00 p.m., and a copy of the arrest memo was furnished to
him.
22. The prosecution further stated that the
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appellant’s personal search was conducted after his arrest. On
12.05.2018, he was produced before the learned District and
Sessions Judge-cum-Special Judge, NDPS, Motihari, who
permitted the NCB to retain the seized contraband and duplicate
samples in the NCB Malkhana and authorised the dispatch of
one representative sample to the CRCL, Kolkata, for chemical
examination.
23. The complaint further records that the seized
contraband, duplicate samples, and other recovered articles,
including the appellant’s mobile phone, were deposited in the
NCB Malkhana on 12.05.2018 under Malkhana Entry No. 93.
On 14.05.2018, sample AS-1, along with duplicate test memos,
was forwarded to the CRCL, Kolkata, for analysis. On the same
day, intimation regarding the appellant’s arrest was sent to his
family members, the jurisdictional SHO, and the Superintendent
of Police.
24. Among the prosecution witnesses, the
testimony of PW-1 and PW-3 assumes considerable
significance. PW-1, who was serving as a Head Constable in the
SSB at the relevant time, is the principal witness regarding the
appellant’s apprehension, his transportation to the SSB office,
the alleged compliance with Section 50 of the NDPS Act, the
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preliminary investigation conducted by the SSB officials, and
the communication of information to the NCB.
25. The appellant’s counsel argued that Section 42
of the NDPS Act had not been complied with. It is contended
that PW-1, being only a Head Constable, was not an officer
empowered under the Act to act upon secret information. It was
further argued that the alleged secret information was never
reduced into writing, thereby resulting in complete non-
compliance with Section 42(1), which vitiates the prosecution.
26. In reply, the learned Senior CGC submitted that
Section 42 had no application to the present case. It was argued
that PW-1 was indeed serving as a Head Constable at the
relevant time and that, following the appellant’s apprehension,
the information was duly communicated to the NCB, where it
was reduced into writing. Reliance has been placed upon State
of Rajasthan v. Jagraj Singh @ Hansa, reported in (2016) 11
SCC 687.
27. This contention of the appellant does not merit
acceptance. The appellant was apprehended at a public place,
and the alleged contraband was recovered there. It is well settled
that searches conducted in public places fall within the ambit of
Section 43 of the NDPS Act, and consequently, the requirements
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of Section 42 are not attracted. Nevertheless, the general
safeguards governing search and seizure under the CrPC/BNSS,
including preparation of seizure lists and association of
independent witnesses, continue to apply.
28. According to PW-1, secret information was
received by the SSB Battalion at about 2:14 p.m. on 10.05.2018.
A team comprising four SSB personnel, including PW-1,
proceeded to the location where the appellant was expected to
arrive. At approximately 4:05 p.m., the appellant was spotted
and apprehended. Two persons from the assembled crowd,
namely Nandu Sah and Mukesh Mandal, were associated as
independent witnesses.
29. Significantly, neither of these independent
witnesses was examined before the trial court despite their
names appearing in the list of prosecution witnesses annexed to
the complaint. The record also does not indicate that any serious
effort was made to secure their attendance during the trial.
30. Furthermore, the prosecution failed to produce
any material demonstrating that the secret information allegedly
received by the SSB officials was communicated to any superior
officer. Although Section 43 does not mandate such
communication, it would ordinarily be expected that Deputy
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Commandant Anup Rob Kashyap, before whom the appellant
was subsequently produced, would have been informed of the
information. PW-1, however, remained completely silent on this
aspect.
31. Equally significant is the fact that, although
four SSB personnel allegedly participated in the operation, only
PW-1 was examined during trial. The remaining officials were
neither cited nor examined as witnesses. Likewise, Deputy
Commandant Anup Rob Kashyap, before whom the alleged
proceeding under Section 50 is claimed to have been conducted,
was not examined, and no explanation has been offered for his
non-production.
32. The absence of testimony from these material
witnesses casts a serious shadow over the prosecution case and
raises legitimate concerns regarding the fairness and credibility
of the initial investigation. Since the alleged secret information,
the very genesis of the prosecution case, has not been
satisfactorily established, the foundation of the prosecution case
itself remains doubtful.
33. I shall now consider the issue relating to
compliance with Section 50 of the NDPS Act.
33.1. According to the prosecution, the appellant
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was carrying a black laptop bag when he was apprehended on
suspicion of transporting narcotic contraband. The evidence of
PW-1, read together with the averments in the complaint,
indicates that the SSB officials intended not only to search the
bag but also to conduct the appellant’s personal search. The
present case, therefore, attracts the safeguards embodied in
Section 50 of the NDPS Act.
34. The crucial issue is whether those mandatory
safeguards were in fact complied with.
34.1. The complaint asserts that compliance with
Section 50 was effected at the place where the appellant was
intercepted. PW-1, in paragraph 1 of his examination-in-chief,
also stated that after apprehending the appellant was made
aware of the notice under Section 50 in the presence of the two
independent witnesses.
35. However, in paragraph 2 of his testimony, PW-1
stated that the notice was served before Deputy Commandant
Anup Rob Kashyap. This inconsistency regarding the place
where the statutory notice was allegedly served creates a serious
doubt as to whether the mandatory requirements of Section 50
were actually observed.
36. A perusal of Exhibit-1, the alleged notice under
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Section 50, further undermines the prosecution’s case. The
document is entirely typed except for the handwritten details of
the names and address of witnesses. It contains no endorsement
showing that the notice was served upon the appellant after
being read over and explained to him in a language understood
by him. Although it bears the appellant’s thumb impression, it
also records that he consented to be searched before the Head
Constable of the SSB, a recital inconsistent with the
prosecution’s own version.
37. Strict compliance with Section 50 could have
been established through the testimony of the independent
witnesses, Nandu Sah and Mukesh Mandal. However, neither
witness was examined, and the prosecution has offered no
explanation whatsoever for their non-production. Their absence
assumes considerable significance in the facts and
circumstances of the present case and substantially weakens the
prosecution’s claim of due compliance with the mandatory
safeguards under Section 50 of the NDPS Act.
38. It is well settled that where the personal search
of an accused is undertaken, strict compliance with Section 50
of the NDPS Act is mandatory. The provision embodies an
important procedural safeguard and requires that the suspect be
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made aware of his legal right to be searched in the presence of
either a Gazetted Officer or a Magistrate. Compliance with this
requirement is not a mere formality but a substantive protection
intended to ensure fairness and transparency in the search
process.
39. The Hon’ble Supreme Court, in Vijaysinh
Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609,
authoritatively held that Section 50 confers a valuable statutory
right upon the accused. The Hon’ble Court observed that the
accused must be informed of this right in a clear and meaningful
manner, and failure to do so would render the recovery of the
alleged contraband illegal, thereby vitiating the conviction
founded upon such recovery. The relevant observations of the
Hon’ble Supreme Court in paragraph 29 of the said judgment are
reproduced below:
“29. In view of the foregoing
discussion, we are of the firm opinion that the object
with which the right under Section 50(1) of the NDPS
Act, by way of a safeguard, has been conferred on the
suspect viz. to check the misuse of power, to avoid
harm to innocent persons and to minimise the
allegations of planting or foisting of false cases by the
law enforcement agencies, it would be imperative on
the part of the empowered officer to apprise the
person intended to be searched of his right to be
searched before a gazetted officer or a Magistrate. We
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obligation of the authorised officer under sub-section
(1) of Section 50 of the NDPS Act is concerned, it is
mandatory and requires strict compliance. Failure to
comply with the provision would render the recovery
of the illicit article suspect and vitiate the conviction if
the same is recorded only on the basis of the recovery
of the illicit article from the person of the accused
during such search. Thereafter, the suspect may or
may not choose to exercise the right provided to him
under the said provision.”
40. The testimony of PW-1, when considered in its
entirety, persuades this Court to conclude that the appellant was
subjected to a personal search at the place of interception
without first being served with a valid notice under Section 50
of the NDPS Act. Although Exhibit-1 has been produced as a
notice purportedly issued under Section 50, the surrounding
circumstances indicate that it was prepared merely as a
procedural formality rather than as a genuine communication of
the appellant’s statutory right at the time and place of the search.
Consequently, this Court is of the considered view that the
mandatory requirements of Section 50 of the NDPS Act were
not complied with by the SSB officials, who were primarily
responsible for ensuring adherence to the statutory safeguards.
41. I shall now examine the issue concerning
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compliance with Section 52A of the NDPS Act.
41.1. It is an admitted position that the
representative samples from the alleged contraband were not
drawn in the presence of a Magistrate. Learned counsel
appearing for the NCB contended that the sample forwarded to
the CRCL, Kolkata, for chemical examination was dispatched
pursuant to the permission granted by the learned Special Judge.
However, such permission, by itself, cannot be equated with
compliance of the mandatory procedure prescribed under
Section 52A of the NDPS Act.
42. In this regard, the evidence of PW-2 and PW-3
assumes considerable significance. Both witnesses categorically
deposed that the representative samples were drawn at the place
of seizure itself. This version is corroborated by the search-cum-
seizure list (Exhibit-7), which records that the process of
drawing, sealing, and marking the samples was undertaken on
11.05.2018 between 10:30 a.m. and 1:30 p.m.
43. The records further establish that the appellant
was produced before the learned Special Judge only on
12.05.2018, a fact that is not in dispute. Thus, it stands admitted
that the representative samples had already been drawn before
the appellant was produced before the Magistrate and without
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the supervision, certification, or authentication contemplated
under Section 52A of the NDPS Act. The record further reveals
that the certification under Section 52A was obtained nearly two
and a half months after the alleged recovery, thereby depriving
the prosecution of the statutory safeguard intended to ensure the
integrity and authenticity of the samples.
44. Learned counsel appearing for the NCB,
however, has strenuously contended that mere non-compliance
with the procedure prescribed under Section 52A of the NDPS
Act or the Standing Orders framed thereunder is not, by itself,
sufficient to vitiate the prosecution. According to the
respondent, the oral testimony of the prosecution witnesses, read
together with the documentary evidence on record, satisfactorily
establishes the recovery of the contraband from the conscious
possession of the appellant and is adequate to sustain his
conviction notwithstanding the procedural irregularity. In
support of this contention, reliance has been placed upon the
decision of the Hon’ble Supreme Court in Bharat Aambale v.
State of Chhattisgarh, (2025) 8 SCC 452. The respondent has
particularly relied upon paragraph 56 of the said judgment,
which is reproduced below:
” 56. We summarise our final
conclusion as under:
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primarily for the disposal and destruction of seized
contraband in a safe manner yet it extends beyond the
immediate context of drug disposal, as it serves a
broader purpose of also introducing procedural
safeguards in the treatment of narcotics substance
after seizure inasmuch as it provides for the
preparation of inventories, taking of photographs of
the seized substances and drawing samples therefrom
in the presence and with the certification of a
Magistrate. Mere drawing of samples in the presence
of a gazetted officer would not constitute sufficient
compliance of the mandate under Section 52-A sub-
section (2) of the NDPS Act.
56.2. Although, there is no mandate that
the drawing of samples from the seized substance must
take place at the time of seizure as held in Mohanlal
[Union of India v. Mohanlal, (2016) 3 SCC 379 :
(2016) 1 SCC (Cri) 864] , yet we are of the opinion
that the process of inventorying, photographing and
drawing samples of the seized substance shall as far as
possible, take place in the presence of the accused,
though the same may not be done at the very spot of
seizure.
56.3. Any inventory, photographs or
samples of seized substance prepared in substantial
compliance of the procedure prescribed under Section
52-A of the NDPS Act and the Rules/Standing Order(s)
thereunder would have to be mandatorily treated as
primary evidence as per Section 52-A sub-section (4)
of the NDPS Act, irrespective of whether the substance
in original is actually produced before the court or
not.
56.4. The procedure prescribed by the
Standing Order(s)/Rules in terms of Section 52-A of
the NDPS Act is only intended to guide the officers and
to see that a fair procedure is adopted by the officer in
charge of the investigation, and as such what is
required is substantial compliance of the procedure
laid therein.
56.5. Mere non-compliance of the
procedure under Section 52-A or the Standing
Order(s)/Rules thereunder will not be fatal to the trial
unless there are discrepancies in the physical evidence
rendering the prosecution’s case doubtful, which may
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not have been there had such compliance been done.
Courts should take a holistic and cumulative view of
the discrepancies that may exist in the evidence
adduced by the prosecution and appreciate the same
more carefully keeping in mind the procedural lapses.
56.6. If the other material on record
adduced by the prosecution, oral or documentary
inspires confidence and satisfies the court as regards
the recovery as well as conscious possession of the
contraband from the accused persons, then even in
such cases, the courts can without hesitation proceed
to hold the accused guilty notwithstanding any
procedural defect in terms of Section 52-A of the
NDPS Act.
56.7. Non-compliance or delayed
compliance of the said provision or rules thereunder
may lead the court to drawing an adverse inference
against the prosecution, however no hard-and-fast rule
can be laid down as to when such inference may be
drawn, and it would all depend on the peculiar facts
and circumstances of each case.
56.8. Where there has been lapse on the
part of the police in either following the procedure laid
down in Section 52-A of the NDPS Act or the
prosecution in proving the same, it will not be
appropriate for the court to resort to the statutory
presumption of commission of an offence from the
possession of illicit material under Section 54 of the
NDPS Act, unless the court is otherwise satisfied as
regards the seizure or recovery of such material from
the accused persons from the other material on record.
56.9. The initial burden will lie on the
accused to first lay the foundational facts to show that
there was non-compliance of Section 52-A, either by
leading evidence of its own or by relying upon the
evidence of the prosecution, and the standard required
would only be preponderance of probabilities.
56.10. Once the foundational facts laid
indicate non-compliance of Section 52-A of the NDPS
Act, the onus would thereafter be on the prosecution to
prove by cogent evidence that either: (i) there was
substantial compliance with the mandate of Section
52-A of the NDPS Act, OR (ii) satisfy the court that
such non-compliance does not affect its case against
the accused, and the standard of proof required would
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be beyond a reasonable doubt.”
45. Per contra, learned counsel for the appellant has
submitted that there has been a complete and unexplained non-
compliance with the mandatory requirements of Section 52A of
the NDPS Act. According to the appellant, such non-compliance
goes to the very root of the prosecution case and casts a serious
doubt on the sanctity and credibility of the seizure and sampling
process.
46. It is further contended that the FSL report,
which formed the basis of the trial court’s finding regarding the
nature of the seized substance, loses its evidentiary significance
in view of the fundamentally defective procedure adopted while
drawing the representative samples. In the absence of
compliance with Section 52A, the prosecution has failed to
establish that the samples examined by the forensic laboratory
were lawfully drawn representative samples of the contraband
allegedly recovered from the appellant. Consequently, the
prosecution has been unable to prove the identity and continuity
of the seized substance in the manner required by law.
47. In support of the aforesaid submissions, learned
counsel has placed reliance upon the judgment of the Hon’ble
Supreme Court in Nadeem Ahamed v. State of West Bengal,
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arising out of SLP (Crl.) Nos. 9446-9447 of 2025. Particular
reliance has been placed on paragraphs 29 and 30 of the said
judgment, which are reproduced below:
“29. In view of the above discussion,
this Court is compelled to hold that there has been a
complete and unexplained failure to adhere to the
requirements of Section 52A. Neither representative
samples were drawn in the presence of a Magistrate,
nor was the inventory list prepared and certified, as
required by law. These lapses strike at the very root of
the prosecution case, rendering the integrity of the
seizure and sampling process wholly doubtful.
30. We may hasten to add that the
procedure under Section 52A of the NDPS Act has not
been considered to be mandatory by this Court, but the
facts taken cumulatively, i.e., the non-drawing of the
samples in light of the Standing Order no. 1 of 1989,
and the complete non-compliance of Section 52A of the
NDPS Act, makes the entire procedure of seizure and
sampling a total farce, and thereby, unworthy of
credence.”
48. As discussed hereinabove, it is an admitted
position that the representative samples in the present case were
not drawn in the presence of the Magistrate. Consequently, the
primary and mandatory requirement of Section 52A of the
NDPS Act remained unfulfilled.
49. With regard to the preparation of the inventory
and its certification, Exhibit-24 reveals that the certification of
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the seized contraband was carried out by Judicial Magistrate
Sanjay Kumar-VI, who had been deputed by the learned District
& Sessions Judge, Motihari. However, a careful examination of
Exhibit-24 discloses that it does not contain the description of
the articles allegedly recovered from the possession of the
appellant in such a manner as required by Section 52A(2). As in
the column of description of goods, it is mentioned that one
sealed package containing 9.950 kg (20 slabs) of a brown-
coloured substance, believed to be charas and marked as P1 to
P20, was seized. However, according to the prosecution’s case,
after the recovery, the seized contraband was packed in white
markin cloth, and two samples were drawn from the seized
material, which were marked as AS1 and AS2. While one of the
samples is stated to have been sent to CRCL, Kolkata for
examination, there is no mention of the second sample in the
description of the goods. Furthermore, the description does not
specify the nature of the package, i.e., whether it was wrapped
in white markin cloth or remained in the alleged black-coloured
laptop bag. Additionally, in the third column, the total weight of
the alleged contraband appears to have been overwritten, and
the said overwriting has not been authenticated by any
signature. This omission raises a legitimate doubt as to whether
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the entire seized property was actually produced before the
Magistrate for certification in the manner contemplated under
Section 52A of the NDPS Act.
50. The prosecution has also failed to produce any
material demonstrating that the appellant was informed of, or
afforded an opportunity to remain present during, the
certification proceedings conducted before the Magistrate. On
the contrary, Exhibit-24 itself indicates that the certification was
undertaken entirely in the appellant’s absence. It further appears
that, apart from the NCB officials and the concerned Magistrate,
no independent witness was associated with the certification
proceedings, thereby diminishing the transparency of the
process. In this regard, Hon’ble Apext Court’s observation in the
paragraph 56.2 of the decision in Bharat Aambale (supra),
which has already been extracted in the preceding part of this
judgment is relevant.
51. There also appears to be a breach of Clause 2.2
of Standing Order No. 1 of 1989 dated 13.06.1989, issued by
the Anti-Smuggling Unit, Department of Revenue, Ministry of
Finance. According to the prosecution’s own case, the
representative samples were not drawn at the place of recovery
but only on the following day after the NCB officials reached
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the office of the SSB. During the intervening period between the
alleged recovery and the sampling, the prosecution has failed to
adduce cogent and reliable evidence establishing that the seized
contraband remained in safe, secure, and tamper-proof custody
of the SSB officials. The absence of such evidence creates a
serious gap in the chain of custody and leaves open the
possibility of tampering with the seized substance.
52. It is undoubtedly true that the Hon’ble Supreme
Court in Bharat Aambale v. State of Chhattisgarh (supra) has
held that mere non-compliance with the procedure prescribed
under Section 52A of the NDPS Act would not invariably prove
fatal to the prosecution. However, such procedural irregularity
can be overlooked only where the remaining oral and
documentary evidence inspires confidence and independently
establishes the recovery of the contraband and its conscious
possession by the accused beyond reasonable doubt.
53. In the present case, however, the factual matrix
stands on an entirely different footing. As already discussed, the
prosecution has failed to satisfactorily establish the
circumstances surrounding the appellant’s apprehension
pursuant to the alleged secret information. This Court has also
recorded a finding that the mandatory safeguards embodied in
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Section 50 of the NDPS Act were not duly complied with. In
these circumstances, the admitted non-compliance with Section
52A, particularly the failure to draw representative samples
before the Magistrate, cannot be brushed aside as a mere
procedural irregularity. Rather, it assumes substantive
significance and strikes at the very foundation of the
prosecution case.
54. Accordingly, in the light of the principles laid
down by the Hon’ble Supreme Court in Nadeem Ahamed
(supra), this Court is of the considered opinion that the non-
compliance with Section 52A of the NDPS Act is fatal to the
prosecution in the facts and circumstances of the present case.
55. Learned Senior CGC, however, contended that
the prosecution had successfully established the recovery of the
contraband from the conscious possession of the appellant. It
was argued that once the prosecution proves the foundational
facts establishing conscious possession, the statutory
presumptions under Sections 35 and 54 of the NDPS Act
automatically come into operation, raising presumptions
regarding the appellant’s culpable mental state and conscious
possession of the seized contraband. According to the learned
Senior CGC, the appellant has failed to rebut these
Patna High Court CR. APP (SJ) No.4098 of 2024 dt.20-07-2026
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presumptions by leading any credible evidence, and therefore
the learned trial court rightly invoked Sections 35 and 54 while
recording the conviction.
56. In support of the aforesaid submissions,
reliance has been placed upon the decisions of the Hon’ble
Supreme Court in Noor Aga v. State of Punjab & Another,
(2008) 16 SCC 417, and Madan Lal & Another v. State of
Himachal Pradesh, (2003) 7 SCC 465.
57. Having considered the evidence on record, this
Court is unable to accept the aforesaid contention. In the
peculiar facts of the present case, the prosecution is not entitled
to invoke the statutory presumption under Sections 35 and 54 of
the NDPS Act. The prosecution has failed to establish due
compliance with the mandatory safeguards contained in
Sections 50 and 52A of the Act, and the remaining evidence on
record is neither sufficiently cogent nor reliable to inspire
confidence so as to dispense with the requirement of strict
compliance with these mandatory provisions.
58. In this context, Hon’ble Apext Court’s
observation in the paragraph 56.8 of the decision in Bharat
Aambale (supra), which has already been extracted in the
preceding part of this judgment is relevant.
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59. Moreover, once it is held that the mandatory
requirements of Section 50 were not complied with in their true
letter and spirit, the personal search of the appellant stands
vitiated in law. Consequently, the alleged recovery of the
contraband pursuant to such an illegal search cannot, by itself,
constitute proof of the appellant’s conscious and unlawful
possession of the seized substance. Equally, a recovery effected
in violation of the mandatory safeguards under Section 50
cannot furnish the foundational facts necessary for invoking the
statutory presumption under Section 54 of the NDPS Act.
60. In this regard, reference may be made to the
observations of the Hon’ble Supreme Court in State of Punjab
v. Baldev Singh, (1999) 6 SCC 172, particularly paragraph 57,
which is reproduced below:
57. On the basis of the reasoning and
discussion above, the following conclusions arise:
“(1) That when an empowered officer
or a duly authorised officer acting on prior
information is about to search a person, it is
imperative for him to inform the person concerned of
his right under sub-section (1) of Section 50 of being
taken to the nearest gazetted officer or the nearest
Magistrate for making the search. However, such
information may not necessarily be in writing.
(2) That failure to inform the person
concerned about the existence of his right to be
searched before a gazetted officer or a Magistrate
would cause prejudice to an accused.
(3) That a search made by an
Patna High Court CR. APP (SJ) No.4098 of 2024 dt.20-07-2026
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informing the person of his right that if he so requires,
he shall be taken before a gazetted officer or a
Magistrate for search and in case he so opts, failure
to conduct his search before a gazetted officer or a
Magistrate, may not vitiate the trial but would render
the recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the
possession of the illicit article, recovered from his
person, during a search conducted in violation of the
provisions of Section 50 of the Act.
(4) That there is indeed need to protect
society from criminals. The societal intent in safety
will suffer if persons who commit crimes are let off
because the evidence against them is to be treated as
if it does not exist. The answer, therefore, is that the
investigating agency must follow the procedure as
envisaged by the statute scrupulously and the failure
to do so must be viewed by the higher authorities
seriously inviting action against the official concerned
so that the laxity on the part of the investigating
authority is curbed. In every case the end result is
important but the means to achieve it must remain
above board. The remedy cannot be worse than the
disease itself. The legitimacy of the judicial process
may come under a cloud if the court is seen to
condone acts of lawlessness conducted by the
investigating agency during search operations and
may also undermine respect for the law and may have
the effect of unconscionably compromising the
administration of justice. That cannot be permitted.
An accused is entitled to a fair trial. A conviction
resulting from an unfair trial is contrary to our
concept of justice. The use of evidence collected in
breach of the safeguards provided by Section 50 at the
trial, would render the trial unfair.
(5) That whether or not the safeguards
provided in Section 50 have been duly observed would
have to be determined by the court on the basis of the
evidence led at the trial. Finding on that issue, one
way or the other, would be relevant for recording an
order of conviction or acquittal. Without giving an
opportunity to the prosecution to establish, at the
trial, that the provisions of Section 50 and,
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particularly, the safeguards provided therein were
duly complied with, it would not be permissible to cut
short a criminal trial.
(6) That in the context in which the
protection has been incorporated in Section 50 for the
benefit of the person intended to be searched, we do
not express any opinion whether the provisions of
Section 50 are mandatory or directory, but hold that
failure to inform the person concerned of his right as
emanating from sub-section (1) of Section 50, may
render the recovery of the contraband suspect and the
conviction and sentence of an accused bad and
unsustainable in law.
(7) That an illicit article seized from
the person of an accused during search conducted in
violation of the safeguards provided in Section 50 of
the Act cannot be used as evidence of proof of
unlawful possession of the contraband on the accused
though any other material recovered during that
search may be relied upon by the prosecution, in other
proceedings, against an accused, notwithstanding the
recovery of that material during an illegal search.
(8) A presumption under Section 54 of
the Act can only be raised after the prosecution has
established that the accused was found to be in
possession of the contraband in a search conducted in
accordance with the mandate of Section 50. An illegal
search cannot entitle the prosecution to raise a
presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal
case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114]
cannot be understood to have laid down that an illicit
article seized during a search of a person, on prior
information, conducted in violation of the provisions
of Section 50 of the Act, can by itself be used as
evidence of unlawful possession of the illicit article on
the person from whom the contraband has been seized
during the illegal search.
10. That the judgment in Ali Mustaffa
case correctly interprets and distinguishes the
judgment in Pooran Mal case and the broad
observations made in Pirthi Chand case and Jasbir
Singh case are not in tune with the correct exposition
of law as laid down in Pooran Mal case.”
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61. Furthermore, the investigating agency has
committed serious lapses in adhering to the mandatory
procedure prescribed under Section 52A of the NDPS Act. In
the peculiar facts of the present case, such lapses assume
considerable significance and preclude this Court from invoking
the statutory presumption under Sections 35 and 54 of the
NDPS Act against the appellant. The evidence brought on
record does not inspire the confidence of this Court to such an
extent as would justify dispensing with the prosecution’s
obligation to establish strict compliance with Section 52A.
62. Apart from the admitted non-compliance with
the requirements of Section 52A, the very foundational facts of
the prosecution case, namely, the receipt of the alleged secret
information, the action taken by the SSB personnel pursuant
thereto, and the circumstances in which the appellant was
apprehended with the alleged contraband, are themselves
surrounded by serious doubt. In the absence of credible proof of
these foundational facts, the prosecution cannot seek the benefit
of the statutory presumption under Section 54 of the NDPS Act.
63. Accordingly, this Court finds no merit in the
aforesaid submission advanced by the learned Senior CGC.
63.1. The learned Senior CGC has further relied
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upon the decisions of the Hon’ble Supreme Court in Dharampal
Singh v. State of Punjab with Major Singh v. State of Punjab,
reported in (2010) 9 SCC 608, to contend that the mere non-
examination of independent witnesses is not, by itself, sufficient
to discard the prosecution case where the evidence of the
official witnesses is otherwise found to be cogent, reliable, and
trustworthy. In support of the said proposition, reliance has been
placed upon paragraph 28 of the said judgment, which is
reproduced below:
“28. The case of the prosecution cannot be
rejected only on the ground that independent witnesses
have not been examined, in case on appraisal of the
evidence on record the court finds the case of the
prosecution to be trustworthy. It has come in the
evidence of the prosecution witnesses that an attempt
was made to join person from public at the time of
search but none was available. In the face of it mere
absence of independent witness at the time of search
and seizure will not render the case of the prosecution
unreliable.”
64. It is no doubt correct that the prosecution case
cannot be rejected solely on the ground of non-examination of
independent witnesses, provided the evidence adduced by the
prosecution otherwise inspires confidence and is found to be
reliable and trustworthy. However, the facts of the present case
stand on a different footing. In the present matter, two
Patna High Court CR. APP (SJ) No.4098 of 2024 dt.20-07-2026
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independent witnesses, namely, Nandu Sah and Mukesh
Mandal, were admittedly associated with the proceedings from
the very beginning and were stated to have witnessed the
material stages of interception, search, seizure, and sampling.
Despite this, neither of them was produced or examined before
the learned trial court.
65. It is also significant that the prosecution has failed
to demonstrate that any serious effort was made to secure their
presence during the trial. No explanation whatsoever has been
furnished for withholding their testimony. In view of the
circumstances discussed hereinabove, which have already
created serious doubts regarding the credibility of the
prosecution version, this Court is unable to hold that the
evidence led by the prosecution is of such a sterling and
unimpeachable nature that the non-examination of the
independent witnesses can be ignored. Therefore, the judgment
relied upon by the learned Senior CGC does not render any
assistance to the case of the prosecution.
66. For the reasons recorded hereinabove, this Court
finds that the prosecution failed to establish compliance with the
mandatory safeguards contained in Section 50 of the NDPS Act.
Furthermore, the essential requirement under Section 52A of the
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NDPS Act, namely, drawing of representative samples in the
presence and under the supervision of the Magistrate, was
admittedly not followed. No satisfactory explanation has been
furnished by the prosecution for such non-compliance. The
inventory and certification proceedings reflected in Exhibit-24,
purportedly conducted by the learned Judicial Magistrate, also
fail to inspire confidence for the reasons already discussed.
67. Additionally, the unexplained withholding of the
independent witnesses, coupled with the doubtful circumstances
surrounding the very foundation of the prosecution case,
particularly the alleged receipt of secret information by the SSB
personnel, the subsequent action taken by them, and the manner
in which the appellant was apprehended with the alleged
contraband, renders the prosecution version unsafe for the
purpose of sustaining the conviction.
68. In view of the aforesaid findings, this Court is not
persuaded to uphold the conviction of the appellant for the
offences charged and alleged against him. Consequently, the
judgment of conviction dated 05.07.2024 and the consequential
order of sentence dated 09.07.2024 passed by the learned
Exclusive Special Court-I, NDPS Act, East Champaran,
Motihari, in NDPS Case No. 26 of 2018 arising out of NCB
Patna High Court CR. APP (SJ) No.4098 of 2024 dt.20-07-2026
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Case No. NCB/PZU/V/26/2018, are hereby set aside.
69. In the result, the present appeal is allowed.
70. The appellant is in judicial custody. He shall be
released forthwith, if his detention is not required in connection
with any other case.
71. The records of the learned trial court, along with a
copy of this judgment, be transmitted forthwith to the concerned
court for necessary compliance.
(Shailendra Singh, J)
annu/-
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