Tutu Ali vs The Union Of India, Through … on 17 July, 2026

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    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
                                               2/29
    
    
    
    
           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

    SPONSORED

    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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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. Witness

    PW-1 Ashok Kumar Jha Senior Intelligence
    officer Present with the
    informant at the time of
    apprehending the truck

    PW-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 Prosecution

    Exhibit 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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    given to Tutu Ali.

                 '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
    

    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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,
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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,
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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.

    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
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    and 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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
    26/29

    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
    Patna High Court CR. APP (DB) No.950 of 2024 dt.17-07-2026
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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
     



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