Patna High Court – Orders
Parma Sah vs The State Of Bihar on 25 March, 2026
Author: Prabhat Kumar Singh
Bench: Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.395 of 2016
Arising Out of PS. Case No.-121 Year-2014 Thana- SATHI District- West Champaran
======================================================
Parma Sah Son of late Yamuna Sah Resident of Village- Belbaniya, PS
Shikarpur, District West Champaran.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Bimlesh Kumar Pandey, Advocate
For the State : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
12 25-03-2026
Heard learned counsel for the appellant and learned
A.P.P. for the State.
2. This appeal has been filed challenging the
judgment of conviction dated 28.04.2016 and order of sentence
dated 30.04.2016 passed in Trial No. 39 of 2014 corresponding
to N.D.P.S. Case No. 12 of 2014 arising out of Sathi P.S. Case
No. 121 of 2014 whereby and whereunder the sole appellant has
been convicted under Sections 20(b)(ii)(B), 22(b) and 23(b) of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred as the N.D.P.S. Act) and has been sentenced
to undergo rigorous imprisonment for 10 years and pay a fine of
Rs. 1,00,000/- for each of the offence and in case of default of
payment of fine, to further undergo imprisonment for one year
for each default.
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3. The prosecution case, in brief, is that on
07.07.2014 at about 16:00 hours, informant, namely Dhirendra
Nath Verma, received secret information that two persons are
going to Sathi Railway Station on a motorcycle with Ganja.
Upon receiving the information, a raiding team was prepared
and the same reached near Sathi Bazar Railway Station and at
about 18:15 hours, two persons were seen coming from Sathi
Bazar to Railway Station and on suspicion, they were asked to
stop, however, they started fleeing but were caught eventually.
Upon enquiry, they disclosed their names as Parama Sah
(appellant) and Arvind Kumar Sharma and on search, some
substance was found in a polythene kept in a gunny bag and this
appellant disclosed that the said article was Ganja and was
brought from Nepal. Accordingly, seizure was made in presence
of two witnesses, namely Suresh Thakur and Hari Sah and along
with the contraband, one mobile phone and a SIM card were
seized from possession of this appellant and one mobile phone,
a SIM card, 40 rupees cash and motorcycle were seized from
possession of co-accused Arvind Kumar Sharma.
4. The seized articles were produced with the
accused persons to Sathi Police Station and accordingly, Sathi
P.S. Case No. 121 of 2014 was registered. In this case, charge-
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sheet was submitted on 11.10.2014 under Sections 20, 22, 23,
24, 27 and 29 of the N.D.P.S. Act and thereafter, cognizance was
taken and charges were framed on 22.05.2015 under Sections
20(b)(ii)B, 22(b) and 23(b) of the N.D.P.S. Act.
5. In this case, in order to bring home guilt of the
accused person, the prosecution has examined altogether seven
witnesses. P.W. 3, namely Dhirendra Nath Verma is informant of
this case and member of the raiding team. P.W. 1, namely
Nagendra Sahani; P.W. 2, namey Rahul Kumar; P.W. 4, namely
Anil Sharma and P.W. 5, namely Vivekanand Singh, are
members of the raiding team. P.W. 6, namely Rajesh Kumar Jha,
is the Investigating Officer of the case. P.W. 7, namely
Awadhesh Kumar, is incharge of the Malkhana. On the other
hand, the defence has not produced any oral or documentary
evidence.
6 After hearing the parties, the learned trial court
convicted the appellant and sentenced him as indicated in the
opening paragraph of this order.
7. Learned counsel appearing for the appellant
assails the order of conviction and sentence on various grounds.
He contends that in this case, there has been total violation of
Sections 42, 52A and 55 of the N.D.P.S. Act. He contends that in
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this case, the police officer did not record the information at all
and did not inform the the officer superior to him at all thus, is a
clear violation of Section 42 of the Act. The prosecution could
not prove drawing of the so called samples in presence of the
Magistrate and also in presence of the appellant. The seized
articles were neither sealed at the spot nor it was sealed while
keeping the same in Malkhana and as such, production of the
material exhibit does not prove that it was the same article
which was alleged to have been seized in the alleged occurrence
and from the possession of this appellant. Thus, the prosecution
also failed to prove the preparation of inventory in view of
Sections 52A and 55 of the N.D.P.S. Act. He further contends
that the Magistrate before whom the so called sample was
drawn has also not been examined. Nor the expert who prepared
the F.S.L. report has been examined or the two seizure list
witnesses, namely Suresh Thakur and Hari Sah, were examined.
Two members of the raiding team were also not examined. He,
therefore, contends that there is total violation of Sections 42,
52A and 55 of the N.D.P.S. Act and hence, on that score alone,
the appellant is entitle to the relief of acquittal.
8. In support of his contentions, learned counsel for
the appellant has placed reliance upon Paragraph No. 17 of
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judgment of the Hon’ble Apex Court passed in the case of
Karnail Singh versus State of Haryana reported in (2009) 8
SCC 539, which reads as follows:-
“17. It is clear from Sajan Abraham [(2001) 6 SCC
692 : 2001 SCC (Cri) 1217] that to enforce the law
under the NDPS Act stringently against the persons
involved in illicit drug trafficking and drug abuse, the
legislature has made some of its provisions obligatory
for the prosecution to comply with, which the courts
have interpreted to be mandatory. It is further clear
that this is in order to balance the stringency for an
accused by casting an obligation on the prosecution for
its strict compliance. The Court however while
construing such provisions strictly should not interpret
them literally so as to render their compliance
impossible. It concluded that if in a case, the strict
following of a mandate results in delay in trapping an
accused, which may lead the accused to escape, then
the prosecution case should not be thrown out. It is
also clear that when substantial compliance has been
made it would not vitiate the prosecution case.”
9. Learned counsel for the appellant further placed
reliance upon judgment of the Hon’ble Apex Court passed in the
case of State of Rajasthan versus Jagraj Singh @ Hanja
reported in (2016) 11 SCC 687, Paragraph Nos. 9, 24 and 25 of
which reads as follows:-
“9. Whether the High Court committed error in
acquitting the accused is the issue which needs to be
considered in this appeal. Whether there was sufficient
material to support the findings of the High Court
regarding non-compliance with Section 42(1) and
Section 42(2) and whether Section 43 was applicable
in the present case are the other issues which need to
be answered. Whether recovery as claimed by the
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and material and samples were properly sealed are
other related issues.
….. ….. …..
24. After referring to a large number of cases, this
Court in Balbir Singh case [State of Punjab v. Balbir
Singh, (1994) 3 SCC 299 : 1994 SCC (Cri) 634]
recorded the conclusion in para 25 which is to the
following effect : (SCC pp. 320-22)
“25. The question considered above arise frequently
before the trial courts. Therefore we find it necessary to
set out our conclusions which are as follows:
(1) If a police officer without any prior information as
contemplated under the provisions of the NDPS Act
makes a search or arrests a person in the normal course
of investigation into an offence or suspected offences as
provided under the provisions of CrPC and when such
search is completed at that stage Section 50 of the NDPS
Act would not be attracted and the question of complying
with the requirements thereunder would not arise. If
during such search or arrest there is a chance recovery
of any narcotic drug or psychotropic substance then the
police officer, who is not empowered, should inform the
empowered officer who should thereafter proceed in
accordance with the provisions of the NDPS Act. If he
happens to be an empowered officer also, then from that
stage onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered
Magistrate can issue warrant for the arrest or for the
search in respect of offences punishable under Chapter
IV of the Act, etc. when he has reason to believe that such
offences have been committed or such substances are
kept or concealed in any building, conveyance or place.
When such warrant for arrest or for search is issued by a
Magistrate who is not empowered, then such search or
arrest if carried out would be illegal. Likewise only
empowered officers or duly authorised officers as
enumerated in Sections 41(2) and 42(1) can act under
the provisions of the NDPS Act. If such arrest or search
is made under the provisions of the NDPS Act by anyone
other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer
can give the authorisation to his subordinate officer to
carry out the arrest of a person or search as mentioned
therein. If there is a contravention, that would affect the
prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a
prior information given by any person, that should
necessarily be taken down in writing. But if he has
reason to believe from personal knowledge that offences
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under Chapter IV have been committed or materials
which may furnish evidence of commission of such
offences are concealed in any building, etc. he may carry
out the arrest or search without a warrant between
sunrise and sunset and this provision does not mandate
that he should record his reasons of belief. But under the
proviso to Section 42(1) if such officer has to carry out
such search between sunset and sunrise, he must record
the grounds of his belief.
To this extent these provisions are mandatory and
contravention of the same would affect the prosecution
case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who
takes down any information in writing or records the
grounds under proviso to Section 42(1) should forthwith
send a copy thereof to his immediate official superior. If
there is total non-compliance with this provision the
same affects the prosecution case. To that extent it is
mandatory. But if there is delay whether it was undue or
whether the same has been explained or not, will be a
question of fact in each case.
(4-A) If a police officer, even if he happens to be an
“empowered” officer while effecting an arrest or search
during normal investigation into offences purely under
the provisions of CrPC fails to strictly comply with the
provisions of Sections 100 and 165 CrPC including the
requirement to record reasons, such failure would only
amount to an irregularity.
(4-B) If an empowered officer or an authorised officer
under Section 41(2) of the Act carries out a search, he
would be doing so under the provisions of CrPC, namely,
Sections 100 and 165 CrPC and if there is no strict
compliance with the provisions of CrPC then such search
would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the
courts while appreciating the evidence in the facts and
circumstances of each case.
(5) On prior information the empowered officer or
authorised officer while acting under Sections 41(2) or
42 should comply with the provisions of Section 50
before the search of the person is made and such person
should be informed that if he so requires, he shall be
produced before a gazetted officer or a Magistrate as
provided thereunder. It is obligatory on the part of such
officer to inform the person to be searched. Failure to
inform the person to be searched and if such person so
requires, failure to take him to the gazetted officer or the
Magistrate, would amount to non-compliance with
Section 50 which is mandatory and thus it would affect
the prosecution case and vitiate the trial. After being so
informed whether such person opted for such a course or
not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with
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the steps to be taken by the officers after making arrest
or seizure under Sections 41 to 44 are by themselves not
mandatory. If there is non-compliance or if there are
lapses like delay, etc. then the same has to be examined
to see whether any prejudice has been caused to the
accused and such failure will have a bearing on the
appreciation of evidence regarding arrest or seizure as
well as on merits of the case.”
25. A three-Judge Bench in Saiyad Mohd. Saiyad Umar
Saiyad v. State of Gujarat [Saiyad Mohd. Saiyad Umar
Saiyad v. State of Gujarat, (1995) 3 SCC 610 : 1995
SCC (Cri) 564] after elaborate consideration of the
provisions of the NDPS Act including Section 50 had
endorsed the judgment of this Court in Balbir Singh
case [State of Punjab v. Balbir Singh, (1994) 3 SCC
299 : 1994 SCC (Cri) 634] .”
10. Learned counsel for the appellant also places
reliance upon another judgment of the Hon’ble Apex Court
passed in the case of Boota Singh and Others versus State of
Haryana reported in (2021) 19 SCC 606, Paragraph Nos. 12,
13, 14 and 15 of which reads as follows:-
“13. In Jagraj Singh [State of Rajasthan v. Jagraj
Singh, (2016) 11 SCC 687 : (2017) 1 SCC (Cri) 348] ,
the facts were more or less identical. In that case, the
vehicle (as observed in para 5.3 of the decision) was
not a public transport vehicle. After considering the
relevant provisions and some of the decisions of this
Court including the decision in Karnail Singh [Karnail
Singh v. State of Haryana, (2009) 8 SCC 539 : (2009) 3
SCC (Cri) 887] , it was observed : (Jagraj Singh case
[State of Rajasthan v. Jagraj Singh, (2016) 11 SCC 687
: (2017) 1 SCC (Cri) 348] , SCC pp. 694-95 & 702,
paras 14, 16 & 29)
“14. What Section 42(2) requires is that where an officer
takes down an information in writing under sub-section
(1) he shall send a copy thereof to his immediate officer
senior. The communication Ext. P-15 which was sent to
the Circle Officer, Nohar was not as per the information
recorded in Ext. P-14 and Ext. P-21. Thus, no error was
committed by the High Court in coming to the conclusion
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***
16. In this context, it is relevant to note that before the
Special Judge also the breach of Sections 42(1) and
42(2) was contended on behalf of the defence. In para 12
of the judgment the Special Judge noted the above
arguments of defence. However, the arguments based on
non-compliance with Section 42(2) were brushed aside
by observing that discrepancy in Ext. P-14 and Ext. P-15
is totally due to clerical mistake and there was
compliance with Section 42(2). The Special Judge
coming to compliance with the proviso to Section 42(1)
held that the vehicle searched was being used to
transport passengers as has been clearly stated by its
owner Vira Ram, hence, as per the Explanation to
Section 43 of the Act, the vehicle was a public transport
vehicle and there was no need of any warrant or
authority to search such a vehicle. The High Court has
reversed the above findings of the Special Judge. We
thus, proceed to examine as to whether Section 43 was
attracted in the present case which obviated the
requirement of Section 42(1) proviso.
***
29. After referring to the earlier judgments, the
Constitution Bench came to the conclusion that non-
compliance with requirement of Sections 42 and 50 is
impermissible whereas delayed compliance with
satisfactory explanation will be acceptable compliance
with Section 42. The Constitution Bench noted the effect
of the aforesaid two decisions in para 5. The present is
not a case where insofar as compliance with Section
42(1) proviso even an argument based on substantial
compliance is raised there is total non-compliance with
Section 42(1) proviso. As observed above, Section 43
being not attracted, search was to be conducted after
complying with the provisions of Section 42. We thus,
conclude that the High Court has rightly held that non-
compliance with Section 42(1) and Section 42(2) were
proved on the record and the High Court has not
committed any error in setting aside the conviction
order.”
13. In Jagraj Singh [State of Rajasthan v. Jagraj Singh,
(2016) 11 SCC 687 : (2017) 1 SCC (Cri) 348] , the
facts were more or less identical. In that case, the
vehicle (as observed in para 5.3 of the decision) was
not a public transport vehicle. After considering the
relevant provisions and some of the decisions of this
Court including the decision in Karnail Singh [Karnail
Singh v. State of Haryana, (2009) 8 SCC 539 : (2009) 3
SCC (Cri) 887] , it was observed : (Jagraj Singh case
[State of Rajasthan v. Jagraj Singh, (2016) 11 SCC 687
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: (2017) 1 SCC (Cri) 348] , SCC pp. 694-95 & 702,
paras 14, 16 & 29)
“14. What Section 42(2) requires is that where an officer
takes down an information in writing under sub-section
(1) he shall send a copy thereof to his immediate officer
senior. The communication Ext. P-15 which was sent to
the Circle Officer, Nohar was not as per the information
recorded in Ext. P-14 and Ext. P-21. Thus, no error was
committed by the High Court in coming to the conclusion
that there was breach of Section 42(2).
***
16. In this context, it is relevant to note that before the
Special Judge also the breach of Sections 42(1) and
42(2) was contended on behalf of the defence. In para 12
of the judgment the Special Judge noted the above
arguments of defence. However, the arguments based on
non-compliance with Section 42(2) were brushed aside
by observing that discrepancy in Ext. P-14 and Ext. P-15
is totally due to clerical mistake and there was
compliance with Section 42(2). The Special Judge
coming to compliance with the proviso to Section 42(1)
held that the vehicle searched was being used to
transport passengers as has been clearly stated by its
owner Vira Ram, hence, as per the Explanation to
Section 43 of the Act, the vehicle was a public transport
vehicle and there was no need of any warrant or
authority to search such a vehicle. The High Court has
reversed the above findings of the Special Judge. We
thus, proceed to examine as to whether Section 43 was
attracted in the present case which obviated the
requirement of Section 42(1) proviso.
***
29. After referring to the earlier judgments, the
Constitution Bench came to the conclusion that non-
compliance with requirement of Sections 42 and 50 is
impermissible whereas delayed compliance with
satisfactory explanation will be acceptable compliance
with Section 42. The Constitution Bench noted the effect
of the aforesaid two decisions in para 5. The present is
not a case where insofar as compliance with Section
42(1) proviso even an argument based on substantial
compliance is raised there is total non-compliance with
Section 42(1) proviso. As observed above, Section 43
being not attracted, search was to be conducted after
complying with the provisions of Section 42. We thus,
conclude that the High Court has rightly held that non-
compliance with Section 42(1) and Section 42(2) were
proved on the record and the High Court has not
committed any error in setting aside the conviction
order.”
14. The evidence in the present case clearly shows that
the vehicle was not a public conveyance but was a
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vehicle belonging to accused Gurdeep Singh. The
registration certificate of the vehicle, which has been
placed on record also does not indicate it to be a
public transport vehicle. The Explanation to Section 43
shows that a private vehicle would not come within the
expression “public place” as explained in Section 43
of the NDPS Act. On the strength of the decision of this
Court in Jagraj Singh [State of Rajasthan v. Jagraj
Singh, (2016) 11 SCC 687 : (2017) 1 SCC (Cri) 348] ,
the relevant provision would not be Section 43 of the
NDPS Act but the case would come under Section 42 of
the NDPS Act.
15. It is an admitted position that there was total non-
compliance of the requirements of Section 42 of the
NDPS Act.”and also upon judgments of this Hon’ble
Court passed in the case of Vinod Das versus State of
Bihar reported in 2024 (6) BLJ 360 and Pintu Bhagat
versus State of Bihar reported in 2016 (1) PLJR 771.”
11. Lastly, learned counsel for the appellant has
placed reliance upon judgments of this Hon’ble Court passed in
the case of Vinod Das versus State of Bihar reported in 2024
(6) BLJ 360 and Pintu Bhagat versus State of Bihar reported
in 2016 (1) PLJR 771.
12. On the other hand, learned A.P.P. for the State
has submitted that there is no need of any interference in this
appeal since the prosecution witnesses have supported the
corroborated the prosecution story and there is no reason to
differ with the findings of the learned trial court and the
judgment of conviction and order of sentence are justified and
legal.
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13. From going through the rival submissions,
evidences and upon perusal of the records, this Court finds that
it is a case of total non-compliance of the requirements of
Section 42 of the N.D.P.S. Act, which is impermissible. In this
case, the police officials did not record the information in
writing before taking action. Nor did he inform the officer
superior to him at all and thus, it is a clear violation of Section
42 of the N.D.P.S. Act. Neither the two seizure list witnesses nor
the Magistrate in whose presence the samples were drawn of the
expert who prepared the F.S.L. report were examined and there
is no plausible explanation as to why they were not examined.
Moreover, the samples were not drawn before the appellant.
That apart, the samples were drawn and kept in the Malkhana
but there is nothing on record to suggest that the samples were
sealed at the spot or appropriately preserved in the dedicated
Malkhana and thus, the prosecution has failed to prove that the
inventory was prepared in accordance with law and there is
violation of Sections 52A and 55 of the N.D.P.S. Act. Moreover,
all the prosecution witnesses are police officials and there is no
independent witness.
14. These discrepancies in carrying out the
investigation makes the prosecution case highly tainted.
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15. For the aforenoted discrepancy and infirmity, I
find that the impugned judgment of conviction dated 28.04.2016
and order of sentence dated 30.04.2016 are difficult to sustain.
16. In that view of the matter, the judgment of
conviction dated 28.04.2016 and order of sentence dated
30.04.2016 passed by the learned Additional District and
Sessions Judge-IIIrd, Bettiah, West Champaran in Trial No. 39
of 2014 corresponding to N.D.P.S. Case No. 12 of 2014 arising
out of Sathi P.S. Case No. 121 of 2014 are hereby set aside.
17. Appellant is acquitted of all the charges and is
discharged from the liability of the bail bond in connection with
this case.
18. Accordingly, this appeal stands allowed.
19. Interlocutory application/s, if any, also stands
disposed off.
(Prabhat Kumar Singh, J)
shashank/-
U T