Patna High Court
Tutu Ali vs The Union Of India, Through … on 17 July, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.950 of 2024
Arising Out of PS. Case No.-2 Year-2017 Thana- D.R.I District- Muzaffarpur
======================================================
Tutu Ali son of Mr. Abdul Manaf Village- Balaaon Ps- Rangia Dist- Kamrup
Assam
... ... Appellant
Versus
The Union of India, through Intelligence Officer, DRI, RU Muzaffarpur Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1230 of 2024
Arising Out of PS. Case No.-2 Year-2017 Thana- D.R.I District- Muzaffarpur
======================================================
Bagicha Singh Son of Thakur Singh Resident of Village- Bangla Rai, P.S.0
Patti, District- Tarn Taran, State- Punjab
... ... Appellant
Versus
1. The State of Bihar
2. The Directorate of Revenue Intelligence (DRI) Bihar
... ... Respondents
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 950 of 2024)
For the Appellant/s : Mr.Ajay Kumar Thakur, Advocate
Ms. Kiran Kumari, Advocate
Mr. Md. Imteyaz Ahmad, Advocate
Mr. Ritwaj Raman, Advocate
Mr. Purushottam Kumar, Advocate
Mr. Mudit Meet, Advocate
For the DRI : Mr.Anshuman Singh, Sr. Standing Counsel
(In CRIMINAL APPEAL (DB) No. 1230 of 2024)
For the Appellant/s : Mr. Radheyshyam Sharma, Advocate
Ms.Smiti Bharti, Advocate
For the DRI : Mr. Amit Pandey, Sr. Standing Counsel
Mr. Ankit Kumar Singh, Advocate
Mr. Rakesh Kumar, Advocate
======================================================
Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE KUMAR MANISH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 17-07-2026
Both the appeals have been preferred for setting aside
the judgment of conviction dated 28.05.20264 (hereinafter referred
to as the 'impugned judgment') and order of sentence dated
30.05.2024
(hereinafter referred to as the ‘impugned order’) passed
by learned Exclusive Special Court-II (N.D.P.S.) Muzaffarpur in
N.D.P.S case No.02/2017 arising out of DRI Case No.02/2017.
2. By the impugned Judgment, both the appellants have
been convicted for the offences punishable under Sections 20(b)
(ii)c of the Narcotic Drug and Psychotropic Substances Act (in
short ‘N.D.P.S. Act‘). By the impugned order, they have been
sentenced to undergo rigorous imprisonment for Fifteen years with
a fine of Rs. 1,50,000/- ( One Lakh Fifteen Thousand) each and in
default of payment of fine, they shall further undergo additional
simple imprisonment for one year.
Prosecution Case
3. The prosecution case based on the Panchnama
prepared by the informant (PW-2) is that on 02.08.2017, the
informant got secret information that two persons are going to
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Gorakhpur with a consignment of Ganja through a Truck bearing a
registration No-HR55K- 1508 via Muzaffarpur. On getting this
information, two officers of the Regional Units Muzaffarpur went
to Mathi Toll plaza where at 17:30 hours the said truck was seen
coming from the site of Darbhanga in which one driver and one
another person was found sitting. On query, driver disclosed his
name as Baghicha Singh and the another person disclosed himself
as khalasi, namely, Tutu Ali. The officers disclosed their identity
and informed them that they have information regarding Ganja
loaded in the vehicle which was denied by them. Both the persons
became ready to get the vehicle searched in presence of gazetted
officer. Thereafter both the persons were searched by the senior
intelligence officer in which no incriminating article was found
from them. The Driver Bagicha Singh produced the document
showing the vehicle loaded with plastic granules. On further query,
the driver disclosed about the packets of Ganja concealed beneath
the plastic granules in the Driver’s cabin. The packets were
recovered and on opening the same, it was found to be Ganja. The
truck loaded with ganja was brought in the campus of DRI office
Muzaffarpur where the truck and both the apprehended persons
were searched. From the Driver’s cabin 17 packets and 6 packets
from beneath the Plastic granules were found. All the packets
Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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were marked ‘1’ to ’23’ having similar weight the packets 1′ to ’18’
were marked ‘L1′ and packets ’19’ to ’23’ were marked ‘L2’ after
weighing all the packets were prepared on which all have put their
signatures and the gross weight of the packets was 198.500kg and
net weight was found 190.500 kg worth Rs. 9,52,500/-. From ‘L1’
two samples of 24 gram each were taken out and from ‘L2’ two
samples were taken out which were marked ‘B1’ and ‘B2’. The
samples were sealed in presence of the independent witness on
which both the apprehended persons, independent witness and
officers put their signatures and the rest Ganja was sealed there.
The apprehended persons were arrested and DRI Case No. 02 of
2017 dated 03.08.2017 under Sections 20/22 of N.D.P.S. Act was
registered. After investigation, the investigating officer submitted
charge-sheet/complaint No. DRI.F-NO-DRI/718(II)02-
Seizure/MRU/2017/ Dated 24.01.2018 under Section 20 of the
N.D.P.S. Act. , Learned Special Judge, N.D.P.S. Act Muzaffarpur
took cognizance against both the appellants vide order dated
12.06.20218.
4. Charges were read over and explained to the accused
persons (appellants) in Hindi to which they denied the charges and
claimed to be tried. Accordingly, charges were framed vide order
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dated 09.08.2018 for the offences punishable under Sections 20/25
of the N.D.P.S. Act.
5. In course of trial, the prosecution examined as many
as four witnesses and got exhibited several documents. The list of
prosecution witnesses and the documents are given hereunder in
tabular form:-
List of Prosecution witnesses
Prosecution Name of the Witness Description of the
Witness No. WitnessPW-1 Ashok Kumar Jha Senior Intelligence
officer Present with the
informant at the time of
apprehending the truckPW-2 Ashutosh Kumar informant
PW-3 Pawan Kumar Inspector custom charge
Godown
PW-4 Ajay Kumar Superintendent CGST
and companion of the
informant
List of Exhibits on behalf of ProsecutionExhibit Description of the Exhibit Proved by/ Attested by
No.
‘1’ Notice Under Section 50 PW-1
N.D.P.S. Act given to
Bagicha Singh
‘1/A’ Notice Under Section 50 PW-1
N.D.P.S. Act given to Tutu
Ali
‘1/B’ Signature of witness Ashutosh PW-2
Kumar on the Notice Under
Section 50 N.D.P.S. Act
given to Bagicha Singh
‘1/C’ Signature of witness Ashutosh PW-2
Kumar on the Notice Under
Section 50 N.D.P.S. Act
Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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'2' Seizure list PW-1
'2/A' Inventory of Ganja PW-1
'2/B' Signature of witness Ashutosh PW-2
Kumar on seizure list
'2/C' Signature of witness Ashutosh PW-2
Kumar on inventory of Ganja
'3' Panchanama PW-1
'3/A' Signature of witness Ashutosh PW-2
Kumar on Panchanama
'4' Beyan of Bagicha Singh PW-1
recorded under Section 67 of
N.D.P.S. Act.
'4/A' Beyan of Tutu Ali recorded PW-1
under Section 67 of N.D.P.S.
Act.
'4/B' Signature of witness Ashutosh PW-2
Kumar on the Beyan of Bagicha
Singh recorded under Section 67
of N.D.P.S. Act.
'4/C' Signature of witness Ashutosh PW-2
Kumar on the Beyan of Tutu Ali
recorded under Section 67 of
N.D.P.S. Act.
'5' Report produced by witness PW-2
Ashutosh Kumar under Section
57 N.D.P.S. Act.
'6' Paper of secret information PW-2
'7' Complaint petition PW-2
'8' Entry of seized articles made on PW-3
the godown register
'9' Destruction report of seized PW-3
ganja
'10' Certification paper of seized PW-3
articles by Shri Nayan Kumar
J.M. Ist class Muzaffurpur
'C/1' Report of sample received from under Section 293 Cr.P.C.
the laboratory
Material Exhibit
Exhibit Description of the Exhibit Proved by/ Attested by
No.
'1' Sealed envelop of sample PW-3
having signature
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6. Thereafter, the statements of the accused persons,
namely, Bagicha Singh and Tutu Ali were recorded under Section
313 of the Cr.P.C. in which they stated that they are innocent.
Findings of the Learned Trial Court
7. Learned trial court after analysing the evidences
available on the record found that PW-2 (informant-cum-
investigating officer) has supported the prosecution case which has
been corroborated by PW-1 and PW-4. Learned Trial Court found
that PW-1 in his evidence has proved the documents relating to
notice under Section 50 of N.D.P.S. Act having notice of gazetted
officer, seizure list, inventory of seized articles and Panchnama
which were duly executed. On these documents, PW-2 has proved
his signature which were also exhibited. Learned trial Court found
that PW-2 has proved the information given to senior officials and
after completion of investigation submitted the complaint petition.
This witness has proved the process of sampling of seized articles
and deposit of seized ganja in custom godown.
8. Learned trial Court further found that PW-3 has
proved the entry made in the register of godown, destruction report
of seized ganja and certification paper of seized articles inventory.
Learned trial Court found that sampling done before learned
Judicial Magistrate has been proved by the prosecution. The report
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received from the FSL has been brought on the record which
proved the sample to be ganja.
9. After analysing the evidence, learned trial court found
that the truck loaded with ganja was intercepted on secret
information at toll plaza and on interrogation, the driver and
khalasi accepted regarding ganja loaded on the vehicle which was
shown by them and on preliminary investigation, it was found to
be ganja and with the consent of the accused persons and the
witness, the truck was brought to the campus of DRI Muzaffarpur
where detailed search was done and 32 packets of ganja were
recovered. Accordingly, learned trial Court found that all the
provisions of N.D.P.S. Act were complied with by the informant.
Learned trial Court opined that the accused Bagicha Singh who is
the owner of the truck and the khalasi appointed by him
committed the offence.
10. Learned trial court further found that the prosecution
has not been able to prove the offence under Section 25 of the
N.D.P.S. Act against the appellants, hence, they are acquitted of
the charge under Section 25 of the NDPS Act.
11. Learned trial Court after taking into account all the
facts and circumstances of the case and the materials present on
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the record held guilty and convicted the accused the appellants
under Section 20(b)(ii)c of the N.D.P.S. Act.
Submissions on behalf of the appellant
12. Learned counsel for the appellant has submitted that
there are several lapses in the case of the prosecution. There is
total non-compliance with Section 42 and 50 of the NDPS Act. It
is further submitted that the Investigating Officer (P.W.-2), being a
part of the raiding party, has caused prejudice to the case and it
was also observed that the panch witnesses have not been
examined. The learned counsel also submitted that two
independent witnesses were brought by the team to the place of
occurrence. It is submitted that these two independent witnesses
are biased as they stayed in vicinity of the police station.
13. Learned counsel has submitted that P.W. 1 has stated
that the incident happened on 02/08/2017, when the police
intercepted a truck which carried plastic granules containing 23
packets weighing 190.500 kg of contraband Ganja. In para 30 of
his deposition, he has stated that the seizure list was prepared on
03/08/2017. The learned counsel submitted that it is doubtful
whether the seizure list was prepared on 03/08/2017 and that the
seizure list not being prepared at the place of occurrence raises
serious doubt in the prosecution case. It is further pointed out that
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P.W. 2, in para 22, has stated that on 02/08/2017, when the party
returned, they began working on the seizure procedure, and that he
does not recall when the seizure list was prepared, or whether or
not it was prepared in the presence of a magistrate.
14. Learned counsel has also submitted that P.W. 2, who
is the informant in this case, is also the Investigating Officer and a
member of the raiding team. It was pointed out that in para 10,
P.W. 2 has stated that within 72 hours of receiving the information,
it was forwarded to the senior, which is marked as Exhibit 5. In
para 20, it was pointed out that P.W. 2 has said that the driver did
not try to run away, that the formalities were not completed at the
spot, thereby totally neglecting the procedure under the NDPS Act,
and that he did not ask any independent witness at the place of
occurrence. The learned counsel submitted that these major lapses
create doubt in the case of the prosecution and in their manner of
search, seizure and sampling.
15. Learned counsel for the appellant submitted that
P.W. 2, not even once in his examination-in-chief, has mentioned
as to when he sent the sample for FSL examination. It was further
submitted that no seizure list was prepared at the place of
occurrence, which raises even more doubt in the prosecution case,
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and that there has been a delay in the certification of the seized
articles, which took place on 13/11/2017.
16. The learned counsel for the appellant also submitted
that the seizure list was prepared on 03/08 and the seized articles
were submitted in the godown on 09/08. It was pointed out that
there has been no explanation on the part of the prosecution as to
where the seized contraband was kept during the intervening
period, from 03/08 to 09/08, which raises doubt. It was also
submitted that P.W. 3’s deposition states that when the articles
were submitted in the godown, a sample was drawn and no exhibit
was made of it; however, the same was made in front of the
magistrate and was presented in court as it is.
Submissions on behalf of the DRI
17. On the other hand, learned Senior Standing Counsel
for the DRI submits that in this case, the prosecution has been able
to prove beyond all reasonable doubts that the entire procedures
relating to search, seizure and sampling of the narcotics have been
fully complied with.
18. Learned Senior Standing Counsel submits that the
two samples of 25-25 grams each were drawn from each lot of the
seized substance and were sealed with departmental seal and were
marked as ‘A1’, ‘A2’, ‘B1’ and ‘B2’. Signatures of seizing officer,
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both the independent witnesses and two accused persons were
obtained on all sealed items.
19. Learned Senior Standing Counsel has relied upon the
judgments of the Hon’ble Supreme Court in the case of Narcotics
Control Bureau vs. Kashif reported in (2024) 11 SCC 372 and
Bharat Aambale vs. State of Maharashtra reported in (2025) 8
SCC 452. It is submitted that in this case, there is a compliance
with Section 42 of the NDPS Act, the primary document such as
seizure list, inventory and sampling have been duly proved in
course of trial. The non-examination of two witnesses of the
seizure list would not prove fatal as the defence has not questioned
P.W.-2 on the point of making of seizure list and the signature of
the accused, the witnesses and that of PW-2.
20. It is submitted that on the face of the evidences
present on the record, the learned trial court has rightly held that
the guilt of the accused have been duly proved. No interference
with the impugned judgment and order is warranted.
Consideration
21. We have heard learned counsel for the appellants and
learned Senior Standing Counsel for the Directorate of Revenue
Intelligence as also perused the trial court records.
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22. In the present case, the prosecution case is based on
the Panchnama (Exhibit-3) prepared by the informant-cum-
complainant Ashutosh Kumar, Intelligence Officer, Revenue
Intelligence Directorate, Regional Unit, Muzaffarpur. According to
the Panchanama, he had received a secret information that two
persons were coming with a load of ganja on a truck bearing Reg.
No.HR-55K 1508 via Muzaffarpur. The informant prepared a note
of the secret information (Exhibit-6) and placed it before his senior
officer who constituted a team led by the informant (PW-1).
Learned counsel for the appellant has questioned Exhibit-6 on the
ground that the Revenue Intelligence Officer (PW-1) has
mentioned that he had received secret information from his senior
officer to whom he was placing the note. We are, however, of the
considered opinion that by placing Exhibit-6 on the record in
course of trial, the prosecution has shown compliance with the
requirement of Section 42 of the N.D.P.S. Act.
23. As per the Panchanama (Exhibit-3), the team led by
PW-1 informed two persons, namely, Md. Jalil and Md. Shailesh
Kumar who were standing at the Imlichati chowk, Muzaffarpur
that they are the Intelligence Officers and they have got
information that one Tata truck bearing Reg. No.HR-55K 1508
loaded with ganja is going to Gorakhpur via Muzaffarpur. They
Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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requested those two persons to be an independent witness of the
entire procedure of search and the subsequent action. Both of them
agreed to become independent witnesses. On 02.08.2017 at 5.30
PM, the said truck was intercepted, two persons were found sitting
in the truck who were told about the information and both the
persons denied that ganja was loaded on the truck.
24. It is also evident from the materials available on the
record such as Exhibit-1, 1/A, 1/B and 1/C that both the persons
were served with the notices under Section 50 of the N.D.P.S. Act.
They were informed that they have an option to get themselves
searched in presence of a Magistrate or gazetted officer. Both the
persons agreed to get searched in presence of a gazetted officer.
Both the persons were searched in presence of Senior Intelligence
Officer, Muzaffarpur. No prohibited substance was found in their
possession. In course of interrogation, the driver Bagicha Singh
disclosed that in the secret cabin under the driver seat and beneath
the plastic granules ganja were concealed. The driver showed the
packets of ganja concealed inside the secret cabin inside the roof
of the driver’s cabin. Some of the packets were taken out and were
opened. It was found that there was ganja in the packets.
25. According to the prosecution case, keeping in view
the security aspect both the driver and khalasi of the truck together
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with two independent witnesses and the loaded truck were brought
to DRI office, Muzaffarpur for purpose of search and seizure at
7.30 PM. Search was conducted in presence of both the
independent witnesses. In course of search, 17 packets of ganja
were recovered from the secret cabin meant in the driver cabin and
six packets were found concealed beneath the plastic which were
loaded in the truck. All the 23 packets were serially numbered
from 1 to 23 and they were divided into two lots. Two packets
containing identical weight were 18 packets which were numbered
1 to 18 in Lot L-1 and the rest from serial no.19 to 23 were kept in
Lot L-2. The ganja packets were weighed in presence of the driver
and khalasi as also in presence of the two independent witnesses.
All of them signed on the seizure memo. The prosecution has
brought on record the seizure/detention memo (Exhibit-2) on the
record.
26. A perusal of the seizure memo would show that both
the accused-appellants, the two independent seizure list witnesses
and the Revenue Intelligence Officer (PW-1) have put their thumb
impression/signature. One of the accused Md. Tutu Ali has signed
in English. In course of trial, the seizure memo (Exhibit-2) has
been proved by Ashok Kumar Jha, the Sr. Intelligence Officer in
DRI, Muzaffarpur (PW-1). He has stated the prosecution case in
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his examination-in-chief. In paragraph ’16’ of his examination-in-
chief, this witness has stated that the seizure list bears the thumb
impression of accused Bagicha Singh, signature of Tutu Ali, thumb
impression of one of the Panch witnesses, signature of the another
panch witness and signature of Ashutosh Kumar, Intelligence
Officer. PW-1 also proved a chart on which the weight of each of
the packets were noted, on the said chart also all the above persons
have put their signature. The seizure list and the chart (Annexure-
A) have been duly proved as Exhibit-2 and 2/1 respectively.
27. To this Court, Exhibit-2 and Exhibit-2/1 seems to be
a credible piece of evidence. Although, it has been submitted on
behalf of the appellants that the independent seizure list witnesses
have not deposed in course of trial but no serious prejudice to the
defence has been shown to this Court. This Court is of the
considered opinion that the seizure list having been duly signed by
the accused persons in presence of the independent witnesses and
the Revenue Intelligence Officer Ashutosh Kumar cannot be
doubted. The evidences collected during search of the vehicle in
question cannot be thrown away on this ground alone.
28. It is further evident from the materials available on
the record that in presence of the accused persons two samples of
25 gram each were prepared from both the lots. The samples
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prepared from L-1 were marked A1 and A2. The samples prepared
from L-2 were marked B1 and B2. All the samples were kept in a
yellow colour envelope and the same was sealed. The signature of
both the accused persons, the independent witnesses and the
officers were put on the said envelope. Finding that the accused
persons had violated Section 8(c) of the N.D.P.S. Act, they were
arrested on 03.08.2017 at 5.00 PM and 5.10 PM respectively under
Section 43 of N.D.P.S. Act. The arrest memo was signed by the
arrested persons, the independent witnesses and the officers. A
perusal of the order-sheet of the learned trial court would show
that the accused persons together with the Panchanama, seizure
memo, arrest memo, Section 50 compliance form, information
recorded and the statement of Bagicha Singh and Tutu Ali as also
sample of seized narcotics in four sealed envelopes were submitted
in the court of learned Special Judge, Muzaffarpur on 03.08.2017
itself. The accused persons were taken into judicial custody and
were sent to Central Jail, Muzaffarpur. To this Court, therefore,
there is no iota of doubt that the search, seizure and sampling
procedure were duly complied with in accordance with the
Standing Order No.01/89 and there is no reason to disbelieve these
documents.
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29. It would be further evident on perusal of the
evidences that in course of cross-examination of the prosecution
witnesses, the defence has not questioned the search, seizure and
sampling procedure. They have not denied their signature on the
seizure memo (Exhibit-2) and the inventory prepared after
weighing all the packets (Exhibit-P/1). The defence has not
suggested to the prosecution witnesses that they were not present
in the vehicle in question or that the 23 packets of ganja were not
seized from the truck. From the pattern of cross-examination of the
prosecution witnesses particularly that of Ashutosh Kumar (PW-2)
who has prepared the Panchnama, it is evident that no suggestion
was given to this witness that Panchnama (Exhibit-3) was not
prepared by him in presence of the accused persons. PW-2 is the
I.O. of the case. He has proved his signature on the seizure memo
which has been marked Exhibit-2/b. PW-2 has also identified the
signature of the accused Tutu Ali and thumb impression of the
witness Md. Jalil and the thumb impression of the accused
Bagicha Singh. PW-2 also identified his signature on the inventory
(Exhibit-2/a), his signature has been marked Exhibit-2/c. In course
of his cross-examination, the defence suggested that nothing has
been recovered from the accused persons and they have been
falsely implicated. There is no suggestion to this witness that
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nothing was recovered from the truck in question in which both
the accused persons were present as driver and khalasi
respectively. There is also no suggestion to this witness that there
was no secret cabin in the truck.
30. This Court further finds that in this case the learned
trial court had deputed Sri Nayan Kumar, a Judicial Magistrate,
First Class for preparation of inventory and sampling of the seized
ganja which were lying the custom down. The learned Judicial
Magistrate had prepared the samples and issued a certificate of
inventory in terms of Section 52A of the N.D.P.S. Act. He had
taken out two samples of 25-25 gram each. The learned trial court
has recorded a finding that on perusal of the material exhibit-1 (the
sealed and signed envelope), it appears that the said sample was
prepared and sealed on 13.11.2017 in presence of Sri Nayan
Kumar, Judicial Magistrate, First Class. There was a short
signature of the Judicial Magistrate.
31. The prosecution has produced the godown register
entry of the seized ganja (Exhibit-8) through Pawan Kumar (PW-
3). PW-3 has proved godown entry No.2/NDPS/17-18 dated
09.08.2017. He has also stated that entries relating to destruction
of ganja is also there in the godown register which is written in the
hand of the then inspector, godown which he identified. On his
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identification, this document was marked Exhibit-5. He has also
brought the sample in the court which was marked material exhibit
no.1. PW-3 further proved the destruction report and the certificate
of inventory prepared under the signature of Sri Nayan Kumar,
Judicial Magistrate, First Class.
32. It has been contended on behalf of the appellants that
the prosecution has not explained the period between 03.08.2017
and 09.08.2017 and nothing is stated as to where the packets of
ganja were kept during this period. This Court has considered this
aspect of the matter but having noticed that no illegality or
infirmity has been found in the search, seizure and sampling
procedure and then the certification of inventory as well as the
preparation of samples in terms of Section 52A of the N.D.P.S. Act
having been proved by the prosecution, this unexplained delay in
depositing the ganja in the custom godown would not prove fatal
to the prosecution. The evidences brought by the prosecution in
this case are inspiring confidence and there is no iota of doubt to
this Court that the truck in question was found transporting net
190.400 kg of ganja (gross 198.500 kg). The trial court has
recorded that Bagicha Singh who was driving the truck was also
the owner of the truck in question. He had got loaded the ganja and
had kept the same in the secret cabins inside the truck. It has come
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in evidence that so far as Tutu Ali is concerned, he was not present
at the time of loading of ganja in the truck and he met Bagicha
Singh only on the line hotel near Rangia which is at a distance of
6-7 km from his village and as he was in search of a work,
Bagicha Singh offered him to work as khalasi on his truck. Tutu
Ali boarded on the truck at Rangia on 02.08.2017 itself. He was
informed of the fact that ganja were loaded in the truck. He was
given Rs. 2500/- by Bagiacha Singh as his remuneration and was
offered another Rs.2500/- if he works in the second trip.
33. At this stage, this Court would take glance over the
judgments of the Hon’ble Supreme Court in the case of Kashif
(supra) in which the Hon’ble Supreme Court has considered all the
previous cases laws, discussed Section 52A of the N.D.P.S. Act
and held that notwithstanding anything contained in the Indian
Evidence Act or the Code of Criminal Procedure, every court
trying an offence under this Act, shall treat the inventory, the
photographs of narcotic drugs and psychotropic substances and list
of samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such offence. The
Hon’ble Supreme Court has referred the Constitution Bench
judgment in case of Pooran Mal vs. Director of Inspection
(Investigation) New Delhi (1974) 1 SCC 345 wherein it has been
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observed that in India, the law of evidence is modelled on the rules
of evidence which prevailed in English Law and courts in India
and in England have consistently refused to exclude relevant
evidence merely on the ground that it is obtained by illegal search
or seizure. In the case of State of Punjab vs. Baldev Singh
reported in (1999) 6 SCC 172, the Hon’ble Supreme Court has
explained that the judgment in Pooran Mal (supra) case cannot be
understood to have laid down the law 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. It has been further held that the question of
admissibility of evidence, which may be relevant to the question in
issue, has to be decided in the context and the manner in which the
evidence was collected and is sought to be used.
34. In the present case, we have held that the informant-
complainant had conducted the search, seizure and sampling
procedure in accordance with law. In the kind of the materials
available on the record, we would extract relevant part of the
judgment of the Hon’ble Supreme Court in the case of Kashif
(supra). In case of Kashif (supra), the Hon’ble Supreme Court has
taken note of the views expressed by the Supreme Court in case of
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Yusuf @ Asif vs. State reported in (2024) 14 SCC 217 and Mohd.
Khalid and Anr. vs. State of Telangana reported in (2024) 5
SCC 393. It has been held in paragraph ’46’ of the judgment in
Kashif (supra) as under:-
46. At this stage, we must deal with the recent
judgments in Simarnjit Singh v. State of Punjab 12, in
Yusuf v. State13, and in Mohd. Khalid v. State of
Telangana14 in which the convictions have been set
aside by this Court on finding non-compliance with
Section 52-A and relying upon the observations
made in Mohanlal11. Apart from the fact that the
said cases have been decided on the facts of each
case, none of the judgments has proposed to lay
down any law either with regard to Section 52-A or
on the issue of admissibility of any other evidence
collected during the course of trial under the NDPS
Act.
35. In paragraph ’50’ of its judgment in Kashif (supra),
the Hon’ble Supreme Court has summarised the discussions which
we reproduce hereunder for a ready reference:-
50. The upshot of the above discussion may be
summarised as under:
50.1 The provisions of the NDPS Act are required
to be interpreted keeping in mind the scheme, object
and purpose of the Act; as also the impact on the
society as a whole. It has to be interpreted literally
12. [(2024) 14 SCC 222 : 2023 SCC OnLine SC 906]
13. [(2024) 14 SCC 217 : 2023 SCC OnLine SC 1328]
14. [(2024) 5 SCC 393 : (2024) 2 SCC (Cri) 650]
11. [Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864]
Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
24/29and not liberally, which may ultimately frustrate the
object, purpose and Preamble of the Act.
50.2 While considering the application for bail, the
court must bear in mind the provisions of Section
37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is
sine qua non is known for granting bail to the
accused involved in the offences under the NDPS
Act.
50.3 The purpose of insertion of Section 52-A
laying down the procedure for disposal of seized
narcotic drugs and psychotropic substances, was to
ensure the early disposal of the seized contraband
drugs and substances. It was inserted in 1989 as one
of the measures to implement and to give effect to
the International Conventions on the narcotic drugs
and psychotropic substances.
50.4 Sub-section (2) of Section 52-A lays down the
procedure as contemplated in sub-section (1)
thereof, and any lapse or delayed compliance
thereof would be merely a procedural irregularity
which would neither entitle the accused to be
released on bail nor would vitiate the trial on that
ground alone.
50.5 Any procedural irregularity or illegality found
to have been committed in conducting the search
and seizure during the course of investigation or
thereafter, would by itself not make the entire
evidence collected during the course of
investigation, inadmissible. The court would have to
consider all the circumstances and find out whether
any serious prejudice has been caused to the
accused.
50.6 Any lapse or delay in compliance with Section
52-A by itself would neither vitiate the trial nor
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would entitle the accused to be released on bail. The
court will have to consider other circumstances and
the other primary evidence collected during the
course of investigation, as also the statutory
presumption permissible under Section 54 of the
NDPS Act.
36. In yet another judgment, in case of Bharat Aambale
(supra), the Hon’ble Supreme Court has been pleased to
summarise the law relating to search, seizure and sampling of
Narcotic Drugs and Psychotropic Substances in the following
words:-
“56. We summarise our final conclusion as under:
56.1. Although Section 52-A is 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
Mohanlal2, 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
2. Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864
Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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 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
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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 be beyond a reasonable doubt.”
37. Applying the aforesaid views of the Hon’ble
Supreme Court when we examine the evidences available on the
record, in the present case it is found that the prosecution has
placed every mandatory evidence on the record which are showing
substantial compliance with the procedure prescribed under
Section 52A of the N.D.P.S. Act. In our considered opinion, a fair
procedure has been adopted by the seizing officer and the
investigating officer. They have fully complied with the procedure.
38. In result, we find no reason to interfere with the
judgment of the conviction of the appellants.
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39. These appeals against the judgment of conviction
fail.
40. So far as the sentencing part is concerned, this Court
has noticed that the appellant Bagicha Singh and Tutu Ali both
have been awarded rigorous imprisonment of 15 years under
Section 20(b)(ii) and (c) of N.D.P.S. Act and they have been
ordered to pay a fine of Rs.1,00,000/- each. In case of their failure
to pay the fine amount, they will undergo a further simple
imprisonment of one year.
41. So far as the sentence awarded to Bagicha Singh
who is the appellant in Cr. Appeal (DB) No.1230 of 2024 is
concerned, we would not interfere with the sentence awarded to
him but in the matter of Tutu Ali, who is appellant in Cr. Appeal
(DB) No.950 of 2024, this Court has noticed that he was not a
regular khalasi on the truck. This appellant was not engaged at the
time of loading of the truck, he was in search of a job and when
the truck was standing at a line hotel where Bagicha Singh was
taking his meal, this appellant approached him for engagement.
From his statement recorded under Section 67 of the N.D.P.S. Act,
it is further evident that he has a very poor financial condition and
had the responsibility of his wife and two children. In such
circumstance, his sentence is required to be modified.
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42. We are of the opinion that the sentence of 15 years
rigorous imprisonment awarded to the appellant Tutu Ali be
reduced to 10 years of the rigorous imprisonment. We do so
accordingly. The appellant Tutu Ali shall also be liable to pay a
fine which is the minimum amount prescribed under the provision
of Section 20(b)(ii)(c) of the N.D.P.S. Act i.e. Rs.1,00,000/-. In
case of his failure to pay the fine amount, the appellant Tutu Ali
shall undergo an additional six months simple imprisonment.
43. This appeal against the order of sentence is partly
allowed in respect of the appellant Tutu Ali.
44. Let a copy of this judgment together with the trial
court’s records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
( Kumar Manish, J)
Sushma2/Arvind-
AFR/NAFR CAV DATE 17.06.2026 Uploading Date 17.07.2026 Transmission Date 17.07.2026
