Patna High Court
Hira Ram vs The State Of Bihar on 10 July, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.983 of 2023
Arising Out of PS. Case No.-219 Year-2020 Thana- TARAIYA District- Saran
======================================================
Dhiranjan Singh @ Dhiranjan Kumar Singh, Son of Sakaldeep Singh, R/o
Laguni, P.S. - Panapur, Distt. - Saran at Chapra, Bihar
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 617 of 2023
Arising Out of PS. Case No.-219 Year-2020 Thana- TARAIYA District- Saran
======================================================
Hira Ram, Son of Bharat Ram, Resident of Village- Patti Pachraud, P.S.-
Taraiya, Distt- Saran, Chapra
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 983 of 2023)
For the Appellant/s : Mr. Satyendra Narayan Singh, Advocate
Mr. Kundan Kumar Sinha, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 617 of 2023)
For the Appellant/s : Mr. Satyendra Narayan Singh, Advocate
Mr. Kundan Kumar Sinha, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 10-07-2025
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State as also perused the trial
Court's records.
2. These appeals are arising out of the judgment of
conviction dated 12.05.2023 (hereinafter referred to as the
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
2/46
'impugned judgment') passed by learned Additional Sessions
Judge-I, Saran at Chapra (hereinafter referred to as the 'learned
trial Court') in NDPS Case No. 06 of 2020 (Taraiya P.S. Case
No. 219 of 2020) and the order of sentence dated 17.05.2023
(hereinafter referred to as the 'impugned order') by which the
learned trial Court has been pleased to convict the appellants for
the offences punishable under Section 20(b)(ii)(C) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short
'NDPS Act') and sentenced them to undergo rigorous
imprisonment for 15 years and to pay a fine of Rs. 1 lakh each. In
default of payment of fine, each of the appellants shall undergo
rigorous imprisonment for two years.
Prosecution Case
3. The prosecution case is based on the self statement
of S.I. Rajesh Kumar (PW 4) recorded by self dated 03.07.2020
at 2.45 A.M. on the road of Majhopur- Taraiya Nahar road at near
Mahi Nadi Nanda, village-Pachraud, Police Station-Taraiya,
District-Saran. In his self statement (Ext. P-3 and P-4) he has
alleged as under:-
"On 02.05.2020 at 10:30 P.M. when he along with his
associated reached village 'Pachraud' near river Mahi in course
of patrolling, they saw two motorcycles coming towards them.
When the police force gave them signal to stop their
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
3/46
motorcycles, they tried to escape leaving their motorcycles. They
chased them and apprehended, the accused disclosed their names
as Hira Ram and Dhiranjan Singh. Hira Ram got injured when he
was trying to escape. From both the motorcycles, five sacks were
recovered out of which two were recovered from the motorcycle
Dhiranjan Singh and the rest three were recovered from the
motorcycle of Hira Ram. The accused persons disclosed that they
were carrying 'ganja' but they could not produce any relevant
document for transportation of 'ganja'. He has further alleged
that 81.8 kg of 'ganja' and one old mobile phone were recovered
from the motorcycle of Hira Ram and 61.5 kg of 'ganja' and one
Jio mobile phone were recovered from the motorcycle of
Dhiranjan Singh."
4. On the basis of the said self statement of PW 4,
Taraiya P.S. Case No. 219 of 2020 was registered on 03.07.2020
under Section 20(b)(ii) (C) of the NDPS Act.
5. Upon investigation, police submitted a charge sheet
bearing no. 177 of 2020 on 29.09.2020 for the offences under
Sections 8, 20(b)(ii)(c), 25 & 29 of the NDPS Act. The learned
Special Judge took cognizance of the offences vide order dated
01.10.2020
. Charges were explained to the accused persons,
namely, A1 and A2 who denied the charges and claimed to be
tried. Charges under Section 20(b)(ii) (c) of the NDPS Act were
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
framed.
6. The prosecution produced five witnesses and several
documentary evidences to prove the charges. Material exhibits
being MO 1 to MO 28 were also produced.
7. The statements of A1 and A2 were recorded under
Section 313 Cr.P.C. They denied the prosecution evidences and
pleaded innocence. The defence produced two witnesses, namely,
Ganesh Kumar Rai, DW 1 and Raja Kumar, DW 2. These two
defence witnesses are the witnesses of the seizure list however, it
appears from the charge sheet that they were not made charge
sheet witnesses by the I.O.
8. In course of trial, the prosecution examined as many
as five witnesses and exhibited certain documentary evidences
to prove the prosecution case. The list of the prosecution
witnesses and the exhibits are being shown hereunder in tabular
form:-
List of Prosecution Witnesses
PW 1 Rishimuni Rai
PW 2 Arun Ravidas
PW. 3 Sumant Jee Bari
PW 4 Rajesh Kumar
PW 5 Jamun Prasad
List of Exhibits
Exhibit 'P-1'/PW4 Seizure list dated 03.07.2020
Exhibit 'P-2'/PW 4 Seizure list dated 03.07.2020
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
Exhibit 'P-3'/PW 4 Self statement of PW4
Exhibit 'P-4'/PW4 Endorsement made by PW 4
Exhibit 'P-5'/PW 4 Formal F.I.R.
Exhibit 'P-6'/PW 5 Petition given by PW 5
Exhibits 'P-7'/PW Still photographs of samples of
5, 'P-8'/ PW 5, 'P- seized ganja
9'/ PW 5 and 'P-
10'/PW 5
Exhibit 'P-11'/PW Formal charge sheet
Exhibit 'P-12' FSL report
9. The defence examined two witnesses which are as
under:-
DW 1 Ganesh Kumar
DW 2 Raja Kumar
10. It appears that the statement of the accused-
appellants was recorded under section 313 CrPC. The accused
took a plea that they are innocent and have been falsely
implicated in this case.
Findings of the Learned Trial Court
11. The learned trial Court having analyzed the
evidences available on the record held that the prosecution
searched and seized 'ganja', made it's sample for forensic
examination after registration of the case against both the
accused persons and the forensic examination of the seized
samples found that those were 'ganja' containing Tetra Hydro
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
Cannabinol (THC) which is the chief psychoactive ingredient
of 'ganja'. Thus, the seized article was 'ganja' within the
meaning of Section 2 (iii) (b) read with section 8 of the NDPS
Act.
12. The learned trial Court has upon going through
the evidence of the informant (PW-4) held that he has
supported the prosecution case and has withstood the cross-
examination. No major contradiction could be noted in his
cross-examination. The trial Court found that PW-1 who had
brought the weighing balance and PW-2 have supported the
case of the prosecution by stating in their examination in chief
that they were on patrolling duty along with the PW-4 in the
night of 02.07.2021.
13. The learned trial Court held that the second
vehicle on patrolling duty was also called on the spot and they
came along with weighing balance for measurement of
'ganja', total of 81.8 K.G. of 'ganja' was recovered from
three sacks which were carried by first motorcycle, a total of
61.5 K.G. of 'ganja' was recovered from two sacks carried on
second motorcycle. The seized articles are said to be sealed in
presence of the villagers and copy of seizure list was served
upon both the accused persons.
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
14. The learned trial Court held that the place of
occurrence in this case is as has been stated in the First
Information Report (FIR).
15. The learned trial Court held that out of five
witnesses brought on record by the prosecution, PW-2 and
PW-4 are the eye witnesses to the seizure of 'ganja' from both
the accused persons, as they caught them after chase but
remaining two prosecution witnesses are hearsay to the extent
of their arrest and seizure of 'ganja'. However, they are eye
witnesses of subsequent proceeding against them vide which
seizure list was made. It has been held that Ext. P-1/PW 4 and
Ext. P-2/PW 4 which are the two seizure lists dated 03.07.2020
made at 1:30 "O' clock corroborate the prosecution case. The
learned trial Court held that both the defence witnesses are not
worth relying upon.
16. In the light of the discussions made by the
learned trial Court and the judgment of the Hon'ble Supreme
Court and the High Court, discussed in the impugned
judgment, it has been held that the 'ganja' has been seized
from the possession of the motorcycles and the prosecution
has been able to prove the charges under Sections 20 (b) (ii)
(c) of the NDPS Act against the Appellant nos. 1 & 2 beyond
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
all shadow of doubt.
Submissions on behalf of the appellants
17. Learned counsel for the appellants has assailed
the impugned judgment of conviction and the order of
sentence on various grounds. It is submitted that on close
scrutiny of the oral and documentary evidences adduced on
behalf of the prosecution, it would be found that the informant
(PW 4) has stated that on seeing the police action, the passers-
bye stopped and some people came there on hearing the
'halla'. Out of them PW-4 took two (2) independent witnesses
and in their presence opened the sacks kept on the motorcycle
of Hira Ram. The second patrolling party came after 15
minutes and PW-4 got the weighing balance from the
patrolling office whereafter he weighed the packets which
were found from the sacks kept on the motorcycle of Hira
Ram. He found that 16 packets were weighed 81.800 K.G. He
put 'marka' of P1 to P16 and sealed all the packets. Learned
counsel submits that the two seizure list witnesses, who are
said to be the independent witnesses were not made charge
sheet witnesses in this case. PW 4 has not explained the reason
for not making those independent witnesses, a charge sheet
witness. He proved the signature of both the witnesses and at
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
his instance both the seizure lists i.e. P-1 and P-2 were
marked exhibits.
18. Learned counsel for the appellants further
points out that PW-4 came to the police station that the seized
articles as par Ext. P-1 and P-2 and there he recorded his self-
statement and registered the case. In paragraph '15' of
examination in chief, he has stated that he had brought the
seized material exhibit from Taraiya police station which are
kept in four plastic sacks in sealed condition. He opened all the
four sacks from which total 28 packets of 'ganja' like
substance were taken out and those were marked as MO 1 to
MO 28. He has stated that he had brought the material exhibits
from the 'malkhana' of the police station.
19. Learned counsel submits that in his cross-
examination, this witness has stated in paragraph '13' that the
sealed exhibits which he had brought in the court were brought
in the sacks which were of later period. He had sealed the
packets kept inside the sacks. He has stated that total 5 sacks
were seized from the two motorcycles but he had brought only
four sacks in the court. In paragraph '29' of his cross-
examination, he has stated that the sacks which were at the
time of seizure were damaged by the rats, therefore, he had
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
brought the seized material exhibits in another four sacks. It is
thus submitted that from the evidence of PW 4, it is evident
that after seizure of the so-called 'ganja', no inventory was
prepared and no certification of the learned Magistrate was
obtained. The seized 'ganja' were kept in the 'malkhana' of
the police station from where the informant had brought them
in the Court. During the period, the sacks were changed which
would prove fatal to the prosecution case.
20. Learned counsel submits that according to PW
4, one Rishimuni Ram had brought the weighing balance.
However, the said Rishimuni Ram (PW 1) has stated that
weighing balance was brought by 'chowkidar' from Pachraud
market. The said 'chowkidar' has not been named and he has
not been made a charge sheet witness. In his cross-
examination, P.W. 1 has stated that he was not in the raiding
party and he was not aware when the accused persons were
arrested. He has stated that the accused persons were kept in
Pati Pachraud village which is a village of 100-150 houses. He
could not say that whether any other person of the said village
was there or not. He got the information about the occurrence
from 'barababu', Rajesh Kumar. He had not put his signature
on the seizure list. It is thus submitted that from the evidence
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
of PW-1, the claim of PW-4 that it was PW-1 who had brought
the weighing balance stands falsified. The fact that PW-1 has
not put his signature on the seizure list and has stated that he
was not a member of the raiding party would further show that
no seizure had taken place in his presence.
21. Learned counsel further points out that Arun
Ravidas (PW 2) has stated that in presence of the villagers, the
sacks kept in the motorcycles were opened and in presence of
the villagers, the officer in-charge had sealed the material
exhibits and prepared the seizure list. However, in his cross-
examination, this witness has stated that at the time when the
'ganja' was being seized, the villagers had not come and they
were not present. Only after 15-20 minutes of the initiation of
action 5-6 villagers were assembled. He could not say that
who was riding which motorcycle. This witness has further
stated that the weighing balance had been brought from police
station. It is thus submitted that on the point of weighing of the
material exhibits, the prosecution witnesses are highly
inconsistent and their oral testimony would create doubt over
the prosecution case that the seized exhibits were duly
weighed and sealed in presence of independent witnesses.
22. Learned counsel further points out that Suman
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
Jee (PW 3) was also not a member of the raiding team of PW
4. He had reached there but before his reaching to the said
place, the seizure had already taken place. This witness was
questioned by the defence that if the seizure list witness was
resident of village situated at a distance of 5-6 kilometers then
how they came in the mid-night from there village and for
what purpose they had come. This witness has stated that he
did not get any knowledge in this regard.
23. It is further pointed out that Jamun Prasad (PW
5) is the investigating Officer of the case. He has stated that
what action had taken during the investigation of the case. He
has stated that he had gone to Chapra Court with the seized
'ganja'/exhibits on 06.07.2020 for obtaining an order but he
was told that because of COVID-19, the Court was getting
sanitized so it was closed from 06.07.2020 to 08.07.2020.
Thereafter, he went to the Court on 15.09.2020 at 10:35 with
the seized exhibits for obtaining an order whereafter the
learned District and Sessions Judge vide Memo No. 424 dated
15.09.2020 ordered Smt. Kiran Ojha, Judicial Magistrate, 1 st
Class, Chapra to pass an appropriate order. He has proved his
application as Ext. P-6/PW5. He had brought seized 'ganja'
from 'Malkhana' to Court and had prepared samples by
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
weighing from computer parts in 13-13 grams which he had
sealed in presence of the court and had obtained signature of
Smt. Kiran Ojha, JM, 1st Class and had also got the
videography done. The photographs were marked as Ext. A to
D. At the instance of PW 5 the signature on all the four
photographs marked as P-7/PW5, P-8/PW5, P-9/PW5 and P-
10/PW5. This witness has stated that on 29.09.2020, the sealed
'ganja' sample were taken out from the 'malkhana' of the
police station and were sent to the forensic science laboratory,
Gunipur, Muzuffarpur vide DR No. 1296/20 dated 20.09.2020.
On the same date i.e. 29.09.2020, he had submitted a charge
sheet while keeping the investigation pending for seized
exhibits, motorcycles and the sample. It is thus submitted that
in this case the charge sheet no. 177/2020 was submitted on
29.09.2020 even before reaching of the samples to the
Forensic Science Laboratory. This witness has stated in his
cross-examination that he was not in the raiding party and he
had not recorded statement of the seizure list witnesses. He has
also not recorded statement of any independent witness and
during investigation, he had not received the FSL report.
24. The learned counsel submits that it is evident
from the oral evidence of the prosecution witnesses that in this
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
case, the prosecution has not followed the standing order no. 1
of 1989 while drawing a sample from a particular lot. Learned
counsel has relied upon the judgment of the Hon'ble Supreme
Court in the case of Bharat Aambale Vs. State of
Chhattisgarh reported in 2025 SCC Online SC 110 and a
recent judgment of the Hon'ble Supreme Court in the case of
Surepally Srinivas Vs. The State of Andhra Pradesh (now
State of Telangana) with Edigi Ramaiah and Others ETC.
Vs. The State of Andhra Pradesh reported in 2025 INSC 414
to submit that in the kind of violation of the standing order
which has statutory force, the prosecution case is liable to fail
and the appellants would deserve an acquittal.
25. On behalf of the defence, two witnesses were
produced. Ganesh Kumar Rai (DW-1) is one of the witnesses
on the seizure list (Exhibit 'P-1'). Surprisingly, he was not
brought as a prosecution witness. He has deposed as a defence
witness and has stated that his house is situated at a distance of
eighteen kilometer west from Manjhopur Canal. He has further
stated that no seizure had taken place in his presence.
According to him, when he had gone to Taraiya Police Station,
there Jamadar Sahab had obtained his signature on two blank
sheets of paper. In his cross-examination, he denied the
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
suggestion that he was standing near Taraiya Manjhopur Canal
and was watching that whether any article has been seized or
not. He denied the suggestion that he had willingly put his
signature on the seizure list, which has been identified by the
informant Rajesh Kumar and the seizure list has been marked
Exhibit 'P-1'. He did not identify the accused Heera Ram and
Dhirendra Singh.
26. Raja Kumar (DW-2) is another witness on the
seizure list (Exhibit 'P-1'- Exhibit 'P-2'). He has also deposed
on the line of DW-1.
Submissions on behalf of the State
27. Learned Additional Public Prosecutor for the
State has defended the judgment of the learned trial court.
Consideration
28. We have heard learned counsel for the appellants
and learned Additional Public Prosecutor for the State as also
perused the trial court's records.
29. According to the informant (PW-4), the seizure
of ganja took place near the hauda of Mahi river in village
Pachraur on 02.07.2020 at 10:30 PM. The informant had gone
on patrolling along with the members of the Bihar Military
Police. The informant claims that he apprehended the accused
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
persons with the help of the police force. He has stated that
while trying to flee away, Heera Ram had fallen down at the
edge of the road, as a result thereof, he had suffered injury on
his left hand. Three plastic sacks were tied with one of the
motorcycles which Heera Ram was driving and two plastic
sacks were tied with the motorcycle which Dhiranjan Singh
was driving. According to the informant, he gave information
of this to the senior officials and called the officer and police
force on patrolling at the place of occurrence. It is stated that
the people from nearby places had assembled and from
amongst them, the informant took two independent passersby
namely Ganesh Kumar Rai of Jaithar and Raja Kumar of
village Murlipur. These two seizure list witnesses have,
however, denied their presence at the place of seizure at the
relevant time and they have claimed that their signatures were
obtained in the police station on blank sheets of paper. This
Court finds from the charge-sheet (Exhibit 'P-11/PW-5') that
only five persons have been named as witnesses in the charge-
sheet. They are (i) Rajesh Kumar, Officer-in-Charge, Taraiya
P.S., (ii) Arun Ravidas, Sub-Inspector, Taraiya P.S., (iii) Rishi
Muni Rai, Sub-Inspector, Taraiya P.S., (iv) Sumant Ji Bari,
Sub-Inspector, Taraiya P.S. and (v) Jamun Prasad, Sub
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
Inspector, Taraiya P.S. It is evident that at the time of filing of
the charge-sheet on 29.09.2020, two seizure list witnesses have
not been made charge-sheet witnesses.
30. On the point of weighing of the ganja, which was
kept in the bags in the plastic sacks, the informant has stated
that he got a weighing balance (taraju batkhara), from
Pachraur Bazar through the police patrolling party. He has
given the weight of the bags which were found in the plastic
sacks tied with the two motorcycles. He also conducted the
body search of the accused persons and according to him, he
had given option to the appellants to get themselves searched in
presence of a Gazetted Officer/Magistrate but the accused
persons-appellants are said to have dispensed with that
requirement under Section 50 of the N.D.P.S. Act and allowed
the informant to search them. On this point, learned counsel
has relied upon the judgment of the Hon'ble Supreme Court in
the case of Arif Khan @ Agha Khan vs. State of
Uttarakhand (Criminal Appeal No. 273 of 2007) reported in
(2018) 18 SCC 380 in which the Hon'ble Supreme Court has
held that compliance of requirement of Section 50 is
mandatory and it has been settled by the Hon'ble Supreme
Court in the case of State of Punjab vs. Baldev Singh
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
reported in (1999) 6 SCC 172 and Vijaysinh Chandubha
Jadeja vs. State of Gujarat reported in (2011) 1 SCC 609 that
it is imperative on the part of the police officer to apprise the
person intended to be searched of his right under Section 50 to
be searched only before a gazetted officer or a Magistrate. In
the said case, the Hon'ble Supreme Court held that since the
search and recovery of the contraband charas was not made
from the appellant in the presence of any Magistrate or
gazetted officer and none of the police officials of the raiding
party, who recovered the contraband from him, was a gazetted
officer, there was no compliance with Section 50 of the NDPS
Act.
31. This Court finds that according to the informant,
the seizure lists of the ganja were prepared at the place of
seizure itself whereafter the seized plastic bags were brought to
the police station. The self-statement of the informant (Exhibit
'P-3/PW-4') states that seized ganja was immediately sealed.
32. On the point of weighing of the seized ganja, the
prosecution witnesses are not consistent. While in the self-
statement, the informant states that he got the weighing
machine through the patrolling party from Pachraur Bazar, the
informant has stated in trial that one Rishi Muni Ram had
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
brought the weighing balance. The said Rishi Muni Ram (PW-
1) has stated that the weighing balance was brought by
Chowkidar. This Court finds that the said Chowkidar has not
been named by PW-1 and he has not been examined by the
prosecution. Further, PW-1 has stated that he was not a
member of the raiding party and he was not aware when the
accused persons were arrested. According to him, the accused
persons were kept in Patti Pachraur village, which is a village
of 100-150 houses. From the evidence of PW-1, the statement
of PW-4, that it was PW-1 who had brought the weighing
balance from Pacrhaur Market, becomes doubtful. The
statement of PW-1 that he was not present at the time of arrest
of the accused persons would create further doubt on the
statement of PW-4 that Rishi Muni Rai (PW-1) was a member
of the raiding party or that the seized ganja were weighed at the
place of arrest and seizure as shown by the informant was
made. If the self-statement of PW-4 is gone through, it would
be found that according to him, the seizure lists were prepared
after weighing the ganja after arrival of the second patrolling
party who were informed over telephone to come at the place
of occurrence but Sumantji Bari (PW-3), who was also not a
member of the raiding party and had reached there as a
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
member of the second patrolling party, has stated that before
his reaching to the said place, the seizure had already taken
place. A perusal of the seizure lists (Exhibit 'P-1/PW-4' and
Exhibit 'P-2/PW-4') would show that while Exhibit 'P-1' was
prepared on 03.07.2020 at 1:30 Hrs, Exhibit 'P-2' was prepared
at 2:15 Hrs on 03.07.2020. If this was the time of seizure of the
ganja, PW-1 and PW-3, who were the members of the second
patrolling party, would not have said that the seizure had not
taken place in their presence. It is evident that the trial court is
not correct in recording a finding that the second vehicle of
patrolling duty was also called on the spot and they came along
with the weighing balance for measurement of ganja so it is
evident that the seizure lists were prepared in presence of the
members of the second patrolling party i.e. PW-1 and PW-3.
This finding of the trial court becomes doubtful on the face of
the evidence of PW-1 and PW-3.
33. It is important to take note of the fact that even
though the FIR was registered on 03.07.2020 at 6:30 AM, the
copy of the fardbeyan and the seizure lists were received in the
court of learned Special Judge, NDPS, Chhapra, Saran only on
04.07.2020. On the said date, the I.O. produced the seized
sealed plastic bags but no application was filed in the court for
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
certification of inventory, preparation of sample and for
sending the samples to the Forensic Science Laboratory.
34. It is evident that there was a delay of more than
twenty four hours in sending the fardbeyan and the seizure lists
to the learned jurisdictional court and further no step was taken
for certification of the seized articles and preparation of
samples. In the kind of the materials, noted by this Court, the
fact that the seizure list witnesses were not made charge-sheet
witnesses would gain importance. Ganesh Kumar Rai (DW-1)
has been shown as a seizure list witness. He has stated that his
house is at a distance of eighteen kilometer from Manjhopur
Canal and there was no seizure in his presence. He is a resident
of village Jaithar under Taraiya Police Station. The second
seizure list witness Raja Kumar (DW-2) is a resident of
Village-Murlipur under Taraiya Police Station and his house is
at a distance of nine kilometer from Manjhopur Taraiya canal.
It is evident that presence of these two witnesses in the
midnight of 02/03.07.2020 does not appear a normal presence.
This Court is of the opinion that their statement to the effect
that the seizure had not taken place in their presence is worth
believable considering the fact that PW-4 did not submit the
FIR and the seizure lists at the earliest opportunity. In the FIR,
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
he did not comply with the statutory requirement of section
157(1) CrPC by mentioning the date and time of dispatch of
the FIR.
35. The fact that the seized ganja were weighed at
the place of occurrence becomes very doubtful on the face of
the evidence of the prosecution witnesses who have made
completely contradictory statements with regard to the
procurement of weighing balance. We have already discussed
that PW-1 has not supported the statement of PW-4 that he had
brought the weighing balance from Pachraur Bazar. In this
regard, the evidence of PW-2 is completely different. He has
stated that the weighing balance had been brought from police
station. Complete contradictory statement of the prosecution
witnesses on the point of bringing of the weighing balance at
the place of occurrence and weighing of the seized ganja would
only lead this Court to conclude that the prosecution is not able
to prove the place, date and time of seizure. Further, the
prosecution is not able to prove that the weighing had taken
place at the place of seizure in presence of two independent
witnesses in the midnight of 2/3 July 2020.
36. It is the stand of the I.O. (PW-5) that he had gone
to Chhapra Court with the seized ganja/exhibits on 06.07.2020
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
for obtaining an order but he was told that because of COVID-
19, the court was getting sanitized so it was closed from
06.07.2020 to 08.07.2020 and he was asked to come after
08.07.2020. It appears that the I.O. (PW-5) went to Chhapra
Court on 15.09.2020 and after more than two months, he
submitted his application for certification and sampling. On
16.09.2020, according to him, the sampling was done by
weighing through computer parts and 13-13 gram of ganja was
put in small container (dibba) which were brought before the
court and were sealed, thereafter, the remaining seized ganja
were sealed and videography was done. When this sampling
was done is not known. It was not done in presence of the
accused is also evident from the records.
37. On perusal of the ordersheets of the court of
learned Special Judge, however, it appears that on 15.09.2020,
the learned Special Judge, Saran directed Smt. Kiran Ojha,
J.M. First Class, Chhapra to prepare the inventory and
photographs of the seized articles as well as the sample of
narcotic drugs and psychotropic substances and to send the
sample to the Forensic Science Laboratory, as prayed for. The
inventory said to have been prepared on 16.09.2020 and
certified by the Judicial Magistrate, First Class, Saran at
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
Chhapra has not been brought on record, instead, a letter
bearing Number 72 dated 18.09.2020 written by Kiran Ojha,
Judicial Magistrate, First Class, Saran to the District and
Sessions Judge, Saran, Chhapra has been brought on record.
From Exhibit 'A', it appears that it is a photograph and on the
back of it, it is recorded inter alia -
"Exhibit - A - Ganja (143 kg. 300 gms) packed and
sealed in five polythene bags
Inventory prepared at Civil Court Saran
16.09.2020 (Exhibit P-10/PW-5).
38. From Exhibit 'P-10', it appears that the ganja
produced before the learned Magistrate were packed and sealed
in five polythene bags whereas from the self-statement (Exhibit
'P-3/PW-4'), it appears that the seized ganja packets were kept
in five plastic sacks. Therefore, there is a change of the bags. It
has come in evidence that during this period the seized ganja
were kept in the Malkhana of the police station. It is evident
that while the seizure lists show seizure of ganja which were
kept in five plastic sacks, Exhibit 'P-10/PW-5' mentions
"packed and sealed in five polythene bags". There is no proof
of sealing of seized article/ganja at the spot.
39. At this stage, this Court would examine the laws
relating to search, seizure and disposal of the narcotic drugs
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
and psychotropic substances. It has been recently summarized
by the Hon'ble Supreme Court in the case of Bharat Aambale
(supra). Standing Order No.1 of 88 vide the notification dated
15.03.1988 prescribing the procedure required to be followed
for drawing samples from the seized narcotic drugs and
psychotropic substances, numbering of samples drawn, sealing,
mode of packing, dispatch of samples to the concerned
laboratory for test etc. has been discussed. Thereafter,
recognizing the importance of dispatch, transit, receipt, safe
custody, storage, proper accounting and disposal destruction of
the seized drugs and the need for evolving a uniform
procedure, the Narcotic Control Bureau issued Standing Order
No. 2 of 88 vide the notification dated 11.04.1988 formulating
the procedure for seizure, sampling and storage of contraband.
In the case of Union of India vs. Mohan Lal reported in
(2016) 3 SCC 379, the Hon'ble Supreme Court has
exhaustively explained Section 52A of the NDPS Act, the
Standing Orders thereunder and the procedure envisaged under
the same for seizure, storage and disposal of narcotic
substances. In Bharat Aambale (supra), the Hon'ble Supreme
Court has taken note of the same which we reproduce
hereunder for a ready reference:-
"13. In Mohanlal (supra) this Court exhaustively
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
explained the scope of Section 52A of the NDPS
Act, the Standing Order(s) issued thereunder and
the procedure envisaged under the same for
seizure, storage and disposal of narcotic
substances as follows:--
(i) Section 52A sub-section (1) empowers the
Central Government to prescribe the procedure
to be followed for seizure, storage and disposal
of narcotic substances, and in exercise of the
same, the aforesaid Standing Order(s) were
issued (as amended from time to time). The
relevant observations read as under:--
"12. Section 52-A(1) of the NDPS Act, 1985
empowers the Central Government to prescribe
by a notification the procedure to be followed for
seizure, storage and disposal of drugs and
psychotropic substances. The Central
Government has in exercise of that power issued
Standing Order No. 1 of 1989 which prescribes
the procedure to be followed while conducting
seizure of the contraband. Two subsequent
standing orders one dated 10-5-2007 and the
other dated 16-1-2015 deal with disposal and
destruction of seized contraband and do not alter
or add to the earlier standing order that
prescribes the procedure for conducting seizures.
Para 2.2 of Standing Order No. 1 of 1989 states
that samples must be taken from the seized
contraband on the spot at the time of recovery
itself."
(ii) As per sub-section (2) of Section 52A, upon
seizure of such substance, the same has to be
forwarded either to the officer-in-charge of the
nearest police station or to the officer
empowered under Section 53 who shall prepare
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
an inventory as stipulated under the said
provision and then make an application to the
magistrate for the purposes of certifying the
correctness of the inventory, photographs etc.
and to draw representative samples therefrom in
its presence. The relevant observations read as
under:--
"15. It is manifest from Section 52-A(2)(c)
(supra) that upon seizure of the contraband the
same has to be forwarded either to the officer-in-
charge of the nearest police station or to the
officer empowered under Section 53 who shall
prepare an inventory as stipulated in the said
provision and make an application to the
Magistrate for purposes of (a) certifying the
correctness of the inventory, (b) certifying
photographs of such drugs or substances taken
before the Magistrate as true, and (c) to draw
representative samples in the presence of the
Magistrate and certifying the correctness of the
list of samples so drawn."
(iii) As per Section 52A sub-section (3) as soon
as the seizure is effected and the contraband is
forwarded, the officer concerned is in law duty-
bound to approach the magistrate as soon as
possible for the purposes mentioned above
including grant of permission to draw
representative samples in his presence, which
will then be enlisted and certified. Thus, the
entire process of drawing of samples has to be in
the presence and under the supervision of the
magistrate and the entire exercise has to be
certified as correct. The relevant observations
read as under:--
"16. Sub-section (3) of Section 52-A requires
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
that the Magistrate shall as soon as may be allow
the application. This implies that no sooner the
seizure is effected and the contraband forwarded
to the officer-in-charge of the police station or
the officer empowered, the officer concerned is
in law duty-bound to approach the Magistrate for
the purposes mentioned above including grant of
permission to draw representative samples in his
presence, which samples will then be enlisted
and the correctness of the list of samples so
drawn certified by the Magistrate. In other
words, the process of drawing of samples has to
be in the presence and under the supervision of
the Magistrate and the entire exercise has to be
certified by him to be correct."
(iv) Section 52A of the NDPS Act does not
require drawing of samples at the very time of
seizure or even at the spot where the contraband
was seized. However, as per sub-section (4) of
Section 52A only those samples which are drawn
in presence of a magistrate and certified by it
will constitute primary evidence for the purpose
of the trial. The relevant observations read as
under:--
"17. The question of drawing of samples at the
time of seizure which, more often than not, takes
place in the absence of the Magistrate does not in
the above scheme of things arise. This is so
especially when according to Section 52-A(4) of
the Act, samples drawn and certified by the
Magistrate in compliance with sub-sections (2)
and (3) of Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it to
say that there is no provision in the Act that
mandates taking of samples at the time of
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
seizure. That is perhaps why none of the States
claim to be taking samples at the time of
seizure."
(Emphasis supplied)
(v) The scheme of the Act in general and Section
52A in particular, does not brook any delay in the
matter of making of an application or the
drawing of samples and certification. While no
strict time-frame can be prescribed into the said
provision, yet the entire process of sampling and
certification ought to be done in a reasonable
period without any undue delay. The relevant
observations read as under:--
"19. [...] There is in our opinion no manner of
doubt that the seizure of the contraband must be
followed by an application for drawing of
samples and certification as contemplated under
the Act. There is equally no doubt that the
process of making any such application and
resultant sampling and certification cannot be left
to the whims of the officers concerned. The
scheme of the Act in general and Section 52-A in
particular, does not brook any delay in the matter
of making of an application or the drawing of
samples and certification. While we see no room
for prescribing or reading a time-frame into the
provision, we are of the view that an application
for sampling and certification ought to be made
without undue delay and the Magistrate on
receipt of any such application will be expected
to attend to the application and do the needful,
within a reasonable period and without any
undue delay or procrastination as is mandated by
sub-section (3) of Section 52-A (supra). We hope
and trust that the High Courts will keep a close
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
watch on the performance of the Magistrates in
this regard and through the Magistrates on the
agencies that are dealing with the menace of
drugs which has taken alarming dimensions in
this country partly because of the ineffective and
lackadaisical enforcement of the laws and
procedures and cavalier manner in which the
agencies and at times Magistracy in this country
addresses a problem of such serious
dimensions."
(vi) As per Section 55 of the NDPS Act the
officer-in-charge of a police station shall take
charge of and keep in safe custody the remaining
seized article pending orders of the magistrate
concerned for its disposal or destruction. Further,
as per the Standing Order(s), such seized
substances must be stored in appropriate safe
vaults or godowns as prescribed thereunder as far
as possible. The relevant observations read as
under:--
"20. The Narcotic Drugs and Psychotropic
Substances Act, 1985 does not make any special
provision regulating storage of the contraband
substances. All that Section 55 of the Act
envisages is that the officer-in-charge of a police
station shall take charge of and keep in safe
custody the seized article pending orders of the
Magistrate concerned. There is no provision nor
was any such provision pointed out to us by the
learned counsel for the parties prescribing the
nature of the storage facility to be used for
storage of the contraband substances. Even so the
importance of adequate storage facilities for safe
deposit and storage of the contraband material
has been recognised by the Government
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
inasmuch as Standing Order No. 1 of 1989 has
made specific provisions in regard to the same.
Section III of the said Order deals with "Receipt
of Drugs in Godowns and Procedure" which
inter alia provides that all drugs shall invariably
be stored in "safes and vaults" provided with
double-locking system and that the agencies of
the Central and the State Governments may
specifically designate their godowns for storage
purposes and such godowns should be selected
keeping in view their security angle,
juxtaposition to courts, etc."
(Emphasis supplied)
(vii) As per Clause 4 of the notification dated
of 1989, the officer in charge of the police station
shall within 30-days from the date of receipt of
chemical analysis report of the seized substances
apply to the magistrate for disposal of the
remaining substance.
"27. Section 52-A as amended provides for
disposal of the seized contraband in the manner
stipulated by the Government under sub-section
(1) of that section. Notification dated 16-1-2015,
in supersession of the earlier Notification dated
10-5-2007 not only stipulates that all drugs and
psychotropic substances have to be disposed of
but also identifies the officers who shall initiate
action for disposal and the procedure to be
followed for such disposal. Para 4 of the
Notification, inter alia, provides that officer in
charge of the police station shall within 30 days
from the date of receipt of chemical analysis
report of drugs, psychotropic substances or
controlled substances apply to any Magistrate
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
under Section 52-A(2) in terms of Annexure 2 to
the said Notification."
(viii) After the aforesaid application is allowed,
the concerned officer is required to submit
details of the seized items to the Chairman of the
Drugs Disposal Committee for a decision on
disposal along with a copy to the officer in
charge of the godown where such substance is
stored. Thereafter, the Drugs Disposal
Committee shall order the disposal in terms of
the procedure envisaged under Clauses 7 & 8,
respectively of the Standing Order as amended
by notification dated 16.01.2015 and thereafter
issue a certificate of destruction or disposal.
"28. Sub-para (2) of Para 4 provides that after the
Magistrate allows the application under sub-
section (3) of Section 52-A, the officer
mentioned in sub-para (1) of Para 4 shall
preserve the certified inventory, photographs and
samples drawn in the presence of the Magistrate
as primary evidence for the case and submit
details of seized items to the Chairman of the
Drugs Disposal Committee for a decision by the
Committee on the question of disposal. The
officer shall also send a copy of the details along
with the items seized to the officer in charge of
the godown. Para 5 of the Notification provides
for constitution of the Drugs Disposal
Committee while Para 6 specifies the functions
which the Committee shall perform. In Para 7 the
Notification provides for procedure to be
followed with regard to disposal of the seized
items, while Para 8 stipulates the quantity or the
value up to which the Drugs Disposal Committee
can order disposal of the seized items. In terms
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
of proviso to Para 8 if the consignments are
larger in quantity or of higher value than those
indicated in the Table, the Drugs Disposal
Committee is required to send its
recommendations to the head of the department
who shall then order their disposal by a high-
level Drugs Disposal Committee specially
constituted for that purpose. Para 9 prescribes the
mode of disposal of the drugs, while Para 10
requires the Committee to intimate to the head of
the Department the programme of destruction
and vest the head of the Department with the
power to conduct a surprise check or depute an
officer to conduct such checks on destruction
operation. Para 11 deals with certificate of
destruction while Paras 12 and 13 deal with
details of sale to be entered into the godown
register and communication to be sent to the
Narcotics Control Bureau."
40. The Hon'ble Supreme Court has reviewed the
case-laws on the subject viz Noor Aga vs. State of Punjab
reported in (2008) 16 SCC 417, Union of India vs.
Jarooparam reported in (2018) 4 SCC 334, Yusuf @ Asif v.
State reported in 2023 SCC OnLine SC 1328, Mangilal vs.
State of Madhya Pradesh reported in 2023 SCC OnLine SC
862, Simarnjit Singh vs. State of Punjab reported in 2023
SCC OnLine SC 906, Mohammed Khalid vs. State of
Telangana reported in (2024) 5 SCC 393, Narcotics Control
Bureau vs. Kashif reported in 2024 SCC OnLine SC 3848,
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
Khet Singh vs. Union of India reported in (2002) 4 SCC 380,
State of Punjab vs. Makhan Chand reported in (2004) 3
SCC 453 and ultimately, held in paragraph '31', '32' and '33'
as under:-
"31. At the same time, one must be mindful
of the fact that Section 52A of the NDPS Act
is only a procedural provision dealing with
seizure, inventory, and disposal of narcotic
drugs and psychotropic substances and does
not exhaustively lay down the evidentiary
rules for proving seizure or recovery, nor
does it dictate the manner in which evidence
is to be led during trial. It in no manner
prescribes how the seizure or recovery of
narcotic substances is to be proved or what
can be led as evidence to prove the same.
Rather, it is the general principles of
evidence, as enshrined in the Evidence Act
that governs how seizure or recovery may be
proved.
32. Thus, the prosecution sans the
compliance of the procedure under Section
52A of the NDPS Act will not render itself
helpless but can still prove the seizure or
recovery of contraband by leading cogent
evidence in this regard such as by examining
the seizing officer, producing independent
witnesses to the recovery, or presenting the
original quantity of seized substances before
the court. The evidentiary value of these
materials is ultimately to be assessed and
looked into by the court. The court should
consider whether the evidence inspires
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
confidence. The court should look into the
totality of circumstances and the credibility
of the witnesses, being mindful to be more
cautious in their scrutiny where such
procedure has been flouted. The cumulative
effect of all evidence must be considered to
determine whether the prosecution has
successfully established the case beyond
reasonable doubt as held in Noor Aga (supra).
33. Even in cases where there is non-
compliance with the procedural requirements
of Section 52A, it does not necessarily vitiate
the trial or warrant an automatic acquittal.
Courts have consistently held that procedural
lapses must be viewed in the context of the
overall evidence. If the prosecution can
otherwise establish the chain of custody,
corroborate the seizure with credible
testimony, and prove its case beyond
reasonable doubt, the mere non-compliance
with Section 52A may not be fatal. The
emphasis must be on substantive justice
rather than procedural technicalities, and
keeping in mind that the salutary objective of
the NDPS Act is to curb the menace of drug
trafficking."
41. The law on the subject has been summarized by
the Hon'ble Supreme Court in the case of Bharat Aambale
(supra) in paragraph '50' which are being reproduced
hereunder for a ready reference:-
"50. We summarize our final conclusion as
under:--
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
(I) Although Section 52A 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 presence of a
gazetted officer would not constitute
sufficient compliance of the mandate under
Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no
mandate that the drawing of samples from the
seized substance must take place at the time
of seizure as held in Mohanlal (supra), 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.
(III) Any inventory, photographs
or samples of seized substance prepared in
substantial compliance of the procedure
prescribed under Section 52A of the NDPS
Act and the Rules/Standing Order(s)
thereunder would have to be mandatorily
treated as primary evidence as per Section
52A subsection (4) of the NDPS Act,
irrespective of whether the substance in
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
original is actually produced before the court
or not.
(IV) The procedure prescribed by
the Standing Order(s)/Rules in terms of
Section 52A 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.
(V) Mere non-compliance of the
procedure under Section 52A 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.
(VI) 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 52A of
the NDPS Act.
(VII) Non-compliance or delayed
compliance of the said provision or rules
thereunder may lead the court to drawing an
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
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.
(VIII) Where there has been
lapse on the part of the police in either
following the procedure laid down in Section
52A of the NDPS Act or the prosecution in
proving the same, it will not be appropriate
for the court to resort to the statutory
presumption of commission of an offence
from the possession of illicit material under
Section 54 of the NDPS Act, unless the court
is otherwise satisfied as regards the seizure or
recovery of such material from the accused
persons from the other material on record.
(IX) The initial burden will lie on
the accused to first lay the foundational facts
to show that there was non-compliance of
Section 52A, 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.
(X) Once the foundational facts
laid indicate non-compliance of Section 52A
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 52A
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.
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
42. Recently in the case of Surepally Srinivas vs.
The State of Andhra Pradesh (now State of Telangana) in
Criminal Appeal No. 1474 of 2025 reported in 2025 SCC
OnLine SC 683, the Hon'ble Supreme Court has held in
paragraph '13', '14' and '15' as under:-
"13. In Bharat Aambale (supra), this Court
held that the purport of Section 52-A, NDPS
Act read with Standing Order No. 1/89
extends beyond mere disposal and destruction
of seized contraband and serves a broader
purpose of strengthening the evidentiary
framework under the NDPS Act. This decision
stresses upon the fact that what is to be seen is
whether there has been substantial compliance
with the mandate of Section 52-A and if not,
the prosecution must satisfy the court that such
non-compliance does not affect its case against
the accused. This is also what has been held in
Kashif (supra).
14. In the present case, from the evidence on
record, it can be seen and it is clear that the
seized contraband was not properly sealed.
Coupled with this is the fact of the seized
contraband not being produced before the trial
court prior to 3rd July, 2010. It is difficult to
accept the prosecution case that though there
may not have been strict compliance of
Standing Order No. 1/89, the seized
contraband was not tampered at all. Keeping
of the seized contraband by PW-3 in a separate
room in his office for fifteen days could give
rise to an allegation that the seized contraband
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
was by itself substituted and some other items
planted to falsely implicate the accused. To
avoid suspicious circumstances and to ensure
fair procedure in respect of search and seizure,
it is always desirable to follow the standing
order which provides suitable guidance for the
officers investigating crimes under the NDPS
Act. Should there be any departure, the same
must be based on justifiable and reasonable
grounds. We are, satisfied, on appreciation of
the evidence on record, that the possibility of
tampering during this fifteen-day period
cannot be totally ruled out and that not only
has there been no substantial compliance of
the standing order, the departure has also not
been justified.
15. We have also found from the materials on
record that there has been clear non-
compliance with the provisions contained in
Section 52-A of the NDPS Act. Either possibly
due to lack of experience of the investigating
officer or his lack of knowledge of the relevant
provisions of the NDPS Act, there were lapses
which were duly noted by the Sessions Judge.
Thus, we are unable to hold that there was
primary and reliable evidence before the trial
court in respect of the offence committed. The
onus of proving that compliance with Section
52-A did not affect the case of the prosecution
has not been duly discharged by the
prosecution."
43. Keeping in view the aforementioned judgments
of the Hon'ble Supreme Court, this Court has closely
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
scrutinized the evidence of the I.O. (PW-5). In his examination-
in-chief, the I.O. has stated that he took charge of the
investigation on 03.07.2020 at 6:30 AM thereafter, he perused
the FIR, seizure list and the seized exhibits. He recorded the
restatement of Rajesh Kumar, Officer-in-charge (PW-4), who
supported the prosecution case. He also recorded the statement
of Arun Ravidas, ASI and proceeded for the place of
occurrence at 9:00 AM. He has given the boundary of the place
where the seizure was made and accused were arrested. The
boundary of the place is as under:
North - after the canal, hauda of Mahi Nadi;
South - old and dilapidated office of the
Canal Department and palani of Rajeshwar
Mahto and thereafter agricultural land of
Lakshmi Singh;
East - pitch road from Taraiya to Manjhopur
Canal; and
West - pakki road from Manjhopur to
towards Taraiya Canal.
44. In his examination-in-chief, he does not mention
to have recorded the statement of the seizure list witnesses. He
received the confessional statement of the accused Hira Ram
on 04.07.2020 from the Officer-in-charge of the police station
which he recorded in the case diary. Thereafter, he sent the
accused persons in police custody with the seized ganja with
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
necessary documents. It is evident from this part of the
examination-in-chief of PW-5 that even though he had received
the FIR on 03.07.2020 at 6:30 PM but he did not send the same
to the jurisdictional court. It was sent to the jurisdictional court
only on 04.07.2020. In his further examination-in-chief, PW-5
has stated that he did not get order for examination of the
seized ganja as per the seizure list, he returned after production
of the accused persons, with the seized ganja and kept it in the
Malkhana. Here it is important to note that on 04.07.2020, the
I.O. (PW-5) did not file any application seeking certification of
the inventory and preparation of sample from the seized ganja.
He simply returned with seized ganja and claims to have kept it
in the Malkhana. No seal was there on the seized ganja. This is
a vital discrepancy on the part of the I.O. The I.O. (PW-5)
brought the seized ganja from Malkhana to the court only on
16.09.2020 i.e. after more than two months and then samples
are said to have been prepared. We have already pointed out
that Exhibit 'A' which has been marked Exhibit 'P-10/PW-5'
mentions 143.80 kg of ganja kept in five polythene bags
whereas as per seizure list, those were kept in plastic sacks.
The polythene bags and the plastic sacks are not the same and
one thing. It creates huge doubt as to whether the polythene
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
bags produced before the learned court were the same and one
which were seized by PW-4.
45. It further appears that the samples were prepared
on 16.09.2020 and were packed in 13-13 gram small dibba of
tin on 16.09.2020 and the sealed sample was kept in the
Malkhana for another thirteen days whereafter it was sent to
the Director of Foreign Science Laboratory, Gannipur,
Muzaffarpur wide DR No. 1296/2020 dated 29.09.2020. From
Exhibit 'B' it appears that it is a photograph of the sample
which was sent to FSL, Muzaffarpur on 16.09.2020 but the fact
remains that the sample was not sent to FSL, Muzaffarpur on
16.09.2020 rather it was taken to the Malkhana where it was
kept for thirteen days.
46. Contrary to the opinion of the Hon'ble Supreme
Court, the sampling was not done in presence of the accused so
what have been held in paragraph 50 (ii) of the judgment in the
case of Bharat Aambale (supra) have not been followed.
47. The FSL report (Exhibit 'P-12') is the report of
the FSL, Muzaffarpur. On the front page of the report it does
not mention memo/letter number though the date is of
16.09.2020. The DR number given by the I.O. (PW-5) in his
deposition is not mentioned on the report of the FSL, the report
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
shows the weight of the sample approximately twelve gram.
48. Exhibit 'C' is the photograph of the sample
which was sent to CFSL, Kolkata on 16.09.2020 but the report
of the Kolkata lab has not come and the same is not available
on the record. I.O. has filed the charge-sheet on 29.09.2020 i.e.
on the same day when the sample was sent to FSL,
Muzaffarpur.
49. Exhibit 'D' is the sample which was kept for
trial. When PW-5 came to depose in course of trial on 27 th July,
2022, he has stated in paragraph '21' of his deposition that
being I.O. of the case it was his responsibility to know that
from where the weighing balance was brought but he had not
inquired about it. In paragraph '24' he has stated that the seized
exhibits were not before him in the court. He had not recorded
statement of any independent witnesses and the persons in the
neighborhood of the place of seizure.
50. Learned counsel submits that the informant (PW-
4) has stated in his deposition that near the place of seizure
there are some small shops. This Court further finds that
despite presence of some small shops near the place neither the
shop owners were examined by the I.O. nor the seizure list
witnesses were examined. PW-4 has admitted in paragraph '19'
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
of his deposition that the sealed exhibit which he had brought
in the court was kept in another sack and the packets inside the
bora (sacks) were sealed by him. It is evident that the Exhibit-
A the inventory (Ext P/10) has been interfered with and the
bags have been changed once again. In paragraph '25' he has
stated that he was producing four boras (sacks). He explained
in paragraph '29' that the 'boras' which were there at the time
of seizure were damaged by rats, therefore, he had brought the
seized material exhibits in another four bags. He admits that at
the time of seizure, the seized materials were sealed in five
bags but at this stage, those material exhibits came in four bags
so he brought the seized articles in four bags.
51. On going through the deposition of PW-4 and
PW-5 and looking into the materials available on the record,
this Court finds that Exhibit - A - ganja (143 kg 300 gms)
packed and sealed in five polythene bags as per the inventory
prepared at Civil Court, Saran on 16.09.2020 were not
produced before the trial court rather the ganja bags were
brought in four boras (sacks) in the court. The Exhibit 'D'
which was the sample kept for trial has not been produced
before the trial court.
52. In the kind of materials discussed hereinabove,
Patna High Court CR. APP (DB) No.983 of 2023 dt.10-07-2025
this Court is of the considered opinion that the prosecution in
this case has failed to establish the chain of custody,
corroborate the seizure with credible testimony and prove its
case beyond all reasonable doubt, in the given circumstance,
this cannot be said to be a case of mere non-compliance with
Section 52A. In the totality of the circumstances, the
prosecution case does not inspire confidence. In the opinion of
this Court, the prosecution is unable to establish its case
beyond reasonable doubt.
53. The impugned judgment and order are set aside
giving benefit of doubt to the appellants.
54. These appeals are allowed. The appellants shall
be released forthwith if not wanted in any other case.
55. Let a copy of this judgment together with the trial
court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
lata/Jagdish/-
AFR/NAFR
CAV DATE
Uploading Date 15.07.2025
Transmission Date 15.07.2025
