Patna High Court
Surendra Sah @ Surender Sah Kanu @ ... vs The State Of Bihar on 6 May, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.762 of 2021
Arising Out of PS. Case No.-66 Year-2018 Thana- PURUSHOTTAMPUR District- West
Champaran
======================================================
Surendra Sah @ Surender Sah Kanu @ Surender Shah, son of late Dawga Sah
@ Surender Patel, Resident of Village - Bada Teuki, Ward No.2, P.S. -
Pokhariya, District - Parsa, Country - Nepal.
... ... Appellant
Versus
The State of Bihar.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Vatsal Verma, Advocate
Mr. Shashank Chandra, Advocate
For the Respondent : Mr. Syed Ashfaque Ahmad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
CAV JUDGMENT
Date : 06-05-2025
Heard the learned counsel for the appellant and the
learned Additional Public Prosecutor for the State.
2. The present appeal is preferred by the
appellant against the judgment of conviction dated 06.07.2020
and the order of sentence dated 07.07.2020 passed by Additional
Sessions Judge-II, West Champaran, Bettiah, in Trial No.07 of
2019, whereby the appellant has been convicted under sections
20(b)(ii)(c) and 23(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ( for short "N.D.P.S. Act"). For the
offence under section 20(b)(ii)(c) of the N.D.P.S. Act, the
appellant was sentenced to undergo rigorous imprisonment for
ten years and a fine of Rs.1,00,000/- (one lakh) was imposed,
and in the event of failure of depositing the fine imposed, the
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
2/24
appellant was directed to undergo a further imprisonment of one
year. Under section 23(c) of the N.D.P.S. Act, appellant was
sentenced to undergo rigorous imprisonment for ten years and a
fine of Rs.1,00,000/- (one lakh) was imposed, and in the event
of failure of depositing the fine imposed, the appellant was
directed to undergo a further imprisonment of one year. Both the
sentences were directed to run concurrently.
3. The present case emanates from a secret
information regarding transport of a consignment of charas
coming to India from Nepal, which was received at about 11:00
A.M. by one Padma Vangil, the Head Constable of 44th
Company Seema Suraksha Bal (SSB), Narkatiaganj. In the
aforesaid information, the description of the person
carrying/transporting the consignment was also disclosed as
wearing a white checked shirt, blue coloured pant and a green
coloured towel (gamcha). Accordingly, the officers of the S.S.B.
were informed and a joint special quick response team was
constituted to carry out the operation of intercepting the
consignment. According to the informant, as stated in the
written complaint, the informant along with other personnel
reached the disclosed location near border pillar no. 411(56) and
at about 14:00 hrs a person was spotted matching the description
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
3/24
as disclosed in the information, accordingly, the said person was
stopped and he was was given an option for getting himself
searched by a Gazetted Officer or by a Magistrate or by the
informant, to which, the apprehended person replied that the
informant can carry out the search. Thereafter, the search was
being carried out in presence of two independent witnesses. It is
alleged that while the search was being done, the apprehended
person threw some object and tried to flee away but he was
prevented from escaping by the team and the object thrown by
him was retrieved. It is next alleged that the object appeared to
be charas which was packed in 8 plastic bundles. The substance
was tested by using the narcotics detection kit which gave
positive result for charas. Thereafter, the contraband was
weighed using an electric weighing machine and was found to
be weighing 02 kilograms. It is next stated that the apprehended
person disclosed his name as Surendra Sah (appellant) and
thereafter he was sent to Purushottampur Police Station for
further action in accordance with law.
4. Based on the aforementioned written
complaint, Purushottampur P.S. Case No.66 of 2018 was
registered under sections 20, 22 and 23 of the N.D.P.S. Act on
17.11.2018
. After submission of the charge-sheet, the learned
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
Additional District Judge, II, West Champaran took cognizance
against the appellant and accordingly, charge was framed
against the appellant.
5. The prosecution in support of its case has
examined four witnesses, which are as under :-
P.W.-01 Ramesh Kumar Singh, Constable, 44th SSB
Battalion, Narkatiganj
P.W.-02 Vipin Kumar, Constable, 47th SSB Battalion,
Raxaul
P.W.-03 Padma Vangil, Head Constable, 44th Company
SSB, Narkatiganj (informant)
P.W.- 04 Rajesh Prasad, S.H.O, P.S. - Purushottampur,
(I.O)
6. The prosecution has also exhibited the
following 12 documents and one material exhibit during the
course of trial :-
Exhibit-1 Performa of seizure report
Exhibit-2 Performa of apprehension
Exhibit-3 Performa of intercepted goods
Exhibit-4 Name and address of the SSB personnel
involved in the seizure procedure
Exhibit-5 Notice for search
Exhibit-6 Arrest memo
Exhibit-7 Personal search memo
Exhibit-8 Self-statement of the appellant
Exhibit-9 Chargesheet
Exhibit-10 Formal F.I.R
Exhibit-11 Attestation on the written statement
Exhibit-12 FSL Report
Material Seized article
Exhibit-01
7. The defence in support of its case has
examined two witnesses.
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
D.W.- 01 Yogender Sah, father-in-law of the appellant
D.W.-02 Shravan Mahto
8. The defence has not exhibited any
documentary evidence during the trial.
9. After completion of prosecution evidence,
the statement of the appellant was recorded under section 313 of
the Code of Criminal Procedure, in which the appellant denied
the allegation and stated that he is innocent and has falsely been
implicated in the present case.
10. The trial court, upon appreciation of the
evidence adduced at the trial, has found the appellant guilty of
the offences and has sentenced him to imprisonment and fine, as
noted above, by its impugned judgment and order.
11. The learned counsel for the appellant submits
that the appellant is a resident of Nepal and is married to one
Munni Devi and since the paternal home of the wife of the
informant is at village-Sukhlahi, P.S.-Mainatand, West
Champaran, the appellant used to visit his in-laws along with his
wife. The learned counsel for the appellant submits that the
main thrust of the defence of the appellant is complete denial of
the facts as narrated by the informant rather the true fact of the
matter is that the father-in-law of the appellant had invited the
appellant and his wife to attend a puja at his place and when the
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
appellant had gone to market along with Bhagmat Sah and
Shravan Mahto in order to purchase certain goods, he was
apprehended by the police and was taken on a motorcycle from
the market place itself.
12. The learned counsel for the appellant
drawing from the fardbeyan of the informant underscores that
the informant is conspicuously silent on the location of the said
object/contraband on the person of the appellant. It is submitted
that it is not the case of the prosecution that the contraband was
concealed by the appellant in his clothes/belt or that the
appellant was carrying a bag/packet of any kind. The learned
counsel also points that according to the informant the appellant
suddenly threw the object and attempted to flee away, which
appears to be a fanciful and concocted allegation. The learned
counsel for the appellant referring to the provisions contained
under section 50 of the N.D.P.S. Act has submitted that since the
informant himself was not a Gazetted Officer, the search being
carried by the informant violates the statutory right of the
appellant.
13. It is emphasized by the learned counsel
appearing for the appellant that the learned trial Court has failed
to appreciate the defence of the appellant and also the flagrant
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
disregard and complete breach of the provisions of the N.D.P.S.
Act while carrying out the search and seizure. It is emphatically
argued that the non-compliance of the mandatory provisions of
the N.D.P.S. Act relating to pre and post search, seizure and
arrest conditions by the informant and the investigating officer
completely vitiates the entire prosecution case.
14. The next leg of the argument advanced by the
learned counsel further expounds on the total violation of the
section 50 of the N.D.P.S. Act since the search, seizure and
arrest of the appellant was done in absence of a Gazetted Officer
or a Magistrate at the place of occurrence. The P.W.-3/informant
is the Head Constable and during the raid he was acting in the
capacity of Party Commandant of the team, which is
corroborated by the signature of P.W.-03 on the seizure list
wherein P.W.-03 has signed the same as HC/GD. Therefore, it is
submitted that P.W.-03 was not authorized under law to carry
out the search and seizure.
15. Importing to section 42(1) of the N.D.P.S.
Act, the learned counsel for the appellant submits that an officer
having any prior information is required to reduce such
information in writing. Further, section 42(2) of the Act
mandates that such information under section 42(1) must
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
mandatorily within 72 hours be sent to immediate superior
officer. However, in the instant case, even though the P.W.-
03/informant had prior information about the contraband being
transported to India, yet no written information was given to the
superior authorities, rather the P.W.-03/informant has merely
deposed that an information was given to superior authority but
no supporting evidence was adduced by the prosecution.
16. It has been submitted by learned counsel for
the appellant that while conducting search and seizure in
addition to the safeguards provided under the Code of Criminal
Procedure, 1973 the safeguards provided under the NDPS Act
are also required to be followed. The harsh provisions of the Act
cast a duty upon the prosecution to strictly follow the procedure
and compliance of the safeguards.
17. In support of this submission, he has relied
upon the Constitution Bench decision rendered in the case of
State of Punjab vs. Baldev Singh reported as 1999 (6) SCC 172
18. It has been submitted by learned counsel for
the appellant that the effect and non-compliance of section 42(2)
and 50 of the N.D.P.S. has been considered by the Hon'ble
Supreme Court in the case Beckodan Abdul Rahiman vs. The
State of Kerala reported in 2002(4) SCC 229. Relevant portion
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
of paragraph no.3 and paragraph no.4 of the aforesaid decision
reads as under:-
xxx
After referring to host of judgments, the
Constitution Bench of the Court held that
the provisions of Sections 42 and 50 are
mandatory and their non compliance
would render the investigation illegal. It
was reiterated that severer the
punishment, greater the care to be taken
to see that all the safeguards provided in
the statute are scrupulously followed. The
safeguards mentioned in Section 50 are
intended to serve a dual purpose to
protect the person against false
accusation and frivolous charges as also
to lend credibility to the search and
seizure conducted by the empowered
officer. If the empowered officer fails to
comply with the requirements of the
Section, the prosecution is to suffer for
the consequences. The legitimacy of the
judicial process may come under the
cloud if the court is seen to condone acts
of lawlessness conducted by the
investigating agency during search
operations and may also undermine
respect for the law and may have the
effect of unconscionably compromising
the administration of justice.
4. In State of Punjab vs. Balbir Singh
[1994(3) SCC 299] it was held that under
Section 42(2) the empowered officer who
takes down any information in writing or
records the grounds under proviso to
Section 42(1) should forthwith send a
copy thereof to his immediate official
superior. If there is a total non
compliance of the provisions the same
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
affects the prosecution case. To that
extent it is mandatory. To the same effect
is the judgment in Saiyad Mohd. Saiyad
Umar Saiyad & Ors. vs. State of Gujarat
[1995 (3) SCC 610]."
19. Learned counsel for the appellant has also
relied upon the decision of the Hon'ble Supreme Court in the
case of State of Rajasthan vs. Jagraj Singh @ Hansa reported
as 2016 (11) SCC 687 and has submitted that in the aforesaid
case similar view has been taken by the Hon'ble Supreme
Court.
20. On the point of non-compliance of section 50
of the NDPS Act, the learned counsel for the appellant has also
relied on the decision of the Hon'ble Supreme Court in the case
of State of Delhi v. Ram Avtar alias Rama reported in (2011)
12 SCC 207. Paragraph no.27 of the aforesaid judgment read as
under:-
"27. It is a settled canon of criminal
jurisprudence that when a safeguard or a
right is provided, favouring the accused,
compliance thereto should be strictly
construed. As already held by the
Constitution Bench in the case of Vijay
Singh Chandubha Jadeja, the theory of
substantial compliance' would not be
applicable to such situations, particularly
where the punishment provided is very
harsh and is likely to cause serious
prejudices against the suspect. The
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
safeguard cannot be treated as a
formality, but it must be construed in its
proper perspective, compliance thereof
must be ensured. The law has provided a
right to the accused, and makes it
obligatory upon the officer concerned to
make the suspect aware of such right. The
officer had prior information of the raid;
thus, he was expected to be prepared for
carrying out his duties of investigation in
accordance with the provisions of Section
50 of the Act. While discharging the onus
of Section 50 of the Act, the prosecution
has to establish that information
regarding the existence of such a right
had been given to the suspect. If such
information is incomplete and
ambiguous, then it cannot be construed to
satisfy the requirements of Section 50 of
the Act. Non-compliance of the provisions
of Section 50 of the Act would cause
prejudice to the accused, and, therefore,
amount to the denial of a fair trial."
21. It is next submitted that before conducting
search and seizure, the officer should have called two
respectable inhabitants of the locality where the search is being
conducted or if no such inhabitant is available then from any
other locality, however in the present case, the two independent
witnesses called were Ravi Kumar and Roshan Kumar. It is
emphasized by the learned counsel that the second witness is in
fact not a resident of India and rather a resident of Nepal,
furthermore it is submitted that neither of the two witnesses
were ever called for deposing their statements before the Court
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
and therefore the prosecution, in such circumstances, could not
have proved the case beyond all reasonable doubts owing to the
fact that all the witnesses examined during the course of the trial
were official witnesses who have merely concocted the entire
story.
22. The learned counsel for the appellant has
next submitted that there are grave and fatal inconsistencies in
the statements of P.W.-1 (Ramesh Kumar Singh, Constable),
P.W.-2 (Vipin Kumar, Constable) and P.W.-3 (Padma Vangil,
informant) gives rise to suspicion regarding the recovery of the
contraband from the persons of the appellant. He points towards
the cross examination of the P.W.-02 at paragraph no.9 wherein
the witness has deposed that the belt and packets were seized
and the seizure list for the same was also prepared. However the
seizure list marked as Exhibit-1 only mentions the recovery of
02 kilograms of charas and there is no whisper of the recovery
of any belt on the aforementioned seizure list which was
allegedly thrown by the appellant and later recovered by the
team of SSB personnel. The learned counsel for the appellant
argues that had the contraband being kept concealed in the belt
or in a bag, then the said objects would also have been seized,
however since no such object was seized, in itself establishes
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
the falseness of the entire story.
23. The learned counsel for the appellant next
draws the attention of this Court to paragraph-10 of the cross-
examination of the P.W.-2 wherein this witness had deposed that
the police inspector had prepared the seizure list at the place of
occurrence, whereas the P.W.-3 in his examination-in-chief at
paragraph no.1 had deposed that the seizure list was in fact
prepared by him at the place of occurrence.
24. It is next argued that from a perusal of the
order dated 20.11.2018 passed by the Court below, it appears an
application was filed by the prosecution for deputing a
Magistrate to seal the seized material for sending the same to
the F.S.L. Muzaffarpur. As such, the learned counsel argues that
had the contraband so seized were sealed at the very place of
occurrence then the prosecution would have only filed the
application for taking samples of the contraband and thereafter
re-sealing the same, but the very fact that an application was
filed to seal the seized material itself according to the learned
counsel demonstrates that the contraband was not sealed at the
place of occurrence and as such, the contraband remained
unsealed at the maalkhana of the police station for 3 days which
caused grave prejudice to the appellant since chances of
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
tampering with the samples during this intervening period could
not be negated.
25. It is further argued that the prosecution has
failed to establish that the contraband marked as Material
Exhibit-1 and produced before the trial Court was stored safely
at the Malkhana since during the course of the trial neither the
malkhana register was produced nor the malkhana in-charge
was examined. Thus, in absence of the any such evidence led by
the prosecution, further doubts are cast on the veracity of the
seized contraband.
26. The non-compliance of section 57 of the
N.D.P.S. Act is also alleged by the counsel for the appellant
since no written information was given by P.W.-3 who had
conducted the search and seizure and had also prepared the
arrest memo. It is emphasized by the learned counsel that the
records of the case would illustrate that no such written
information was provided to the superior officer further no such
report has been marked as exhibited by the prosecution. The
appellant has been in custody since 18.11.2018,
27. Learned counsel for the appellant has also
relied upon the decision of the Hon'ble Supreme Court rendered
in the case of Kishan Chand vs. State of Haryana reported in
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
(2013) 2 SCC 502 and has submitted that in the aforesaid
decision the Hon'ble Supreme Court has considered the
compliance of Sections 42, 50 and 57 and it has been held in
paragraph no.21 as under:-
"21. When there is total and definite non-
compliance with such statutory
provisions, the question of prejudice loses
its significance. It will per se amount to
prejudice. These are indefeasible,
protective rights vested in a suspect and
are incapable of being shadowed on the
strength of substantial compliance".
28. He has also relied upon the judgment of the
Division Bench of this Court passed in Pratibha Devi vs. State
of Bihar reported as 2016 SCC OnLine Pat 10482.
29. It is also submitted that no inventory in terms
of the provisions of section 52(a)(2) of the NDPS Act was
prepared by P.W.-03 as no any photograph of the contraband
article was taken for certifying the same by the Magistrate.
Thus, the seizure was done in complete violation of the
mandatory provision of Sections 52(a)(2) of the N.D.P.S. Act.
30. In support of this submission, learned
counsel for the appellant has relied upon the decision of the this
Court passed in Bhuvneshwar Singh @ Bhanu Singh vs. State
of Bihar [Cr. Appeal No.183 of 1998], more particularly,
paragraph no.15, which reads as under:-
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
"15. Hence, Section 52A of the Narcotic Drugs
and Psychotropic Substances Act, 1985,
mandates that as soon as the article
seized and delivered into the custody of
Officer-in-Charge of the Police Station or
to the Officer empowered under Section
53 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, he is
required to make an inventory of such
narcotic drugs or psychotropic
substances containing such details
relating to their description, quality,
mode of packing method, number or such
identifying particulars of narcotic drugs
packing in which they are packed,
country of origin and other particulars.
He is required to make an application to
any Magistrate for certifying the
correctness of inventory and taking the
photograph of such drugs and certifying
photograph and to draw respective
sample of drugs in presence of Magistrate
and Section 52A of the Narcotic Drugs
and Psychotropic Substances Act, 1985,
provides a rule of evidence that the
inventory prepared and photograph are
proving evidence in respect of evidence.
Hence, Section 52A of the Narcotic Drugs
and Psychotropic Substances Act, 1985,
provides the procedure to deal with seized
article as well as rule of evidence treating
it as primary evidence. Hence, non-
compliance has completely deny the
primary evidence and create doubt that
the seized articles were the article which
have actually been seized and has not
been substituted by other articles."
31. Learned counsel for the appellant has also
relied upon the decision of the Hon'ble Supreme Court in the
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
case of Union of India vs. Mohanlal reported as 2016 (3) SCC
379 and has submitted that in the aforesaid decision the Hon'ble
Supreme Court has considered the fact that whether it is
incumbent upon the Officer-in-charge to forthwith file an
application for drawing representative samples before the
Magistrate after recovery of contraband. Paragraph no.19 of the
aforesaid decision reads as under :-
"19. Mr. Sinha, learned Amicus, argues that if
an amendment of the Act stipulating that
the samples be taken at the time of seizure
is not possible, the least that ought to be
done is to make it obligatory for the
officer conducting the seizure to apply to
the Magistrate for drawing of samples
and certification etc. without any loss of
time. The officer conducting the seizure is
also obliged to report the act of seizure
and the making of the application to the
superior officer in writing so that there is
a certain amount of accountability in the
entire exercise, which as at present gets
neglected for a variety of reasons. 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
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
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
52A. We hope and trust that the High
Courts will keep a close 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. " (emphasis supplied)
32. It has next been submitted that in all criminal
trials the importance is given to all the witnesses examined
during the trial and depositions of witnesses, whether they are
examined on the prosecution side or defence side or as court
witnesses, are all oral evidences in the case and hence the
scrutiny thereof shall be without any predilection or bias, as
such no witness is entitled to get better treatment merely
because they were examined as a prosecution witness or defence
witness or even as a court witness.
33. On this point, learned counsel for the appel-
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
lant has relied upon the following decisions :-
(i) Dudh Nath Pandey vs. State of U.P.
reported as (1981) 2 SCC 166.
(ii) Munshi Prasad and Others v. State of Bihar
reported as (2002) 1 SCC 351
34. I have heard learned counsel appearing for
the parties and perused the materials on record.
35. The N.D.P.S. Act, 1985 is a special statute to
combat the menace of illicit trafficking of drugs. The statute
provides for procedural safeguards to balance the rights of the
accused while also effectively combating the fight against drug
trafficking. In the present case, the appellant has primarily
contented that the authorities on multiple scores have failed to
satisfy these mandatory procedural safeguards under the Act.
36. Section 42 of the N.D.P.S. Act, provides that
it is mandatory that an officer having prior information, must
reduce the same in writing within 72 hours and report the same
to his superior officer. From evidence of P.W.-3 (informant), it
appears that he had prior information based on secret
information, about contraband being transported, yet no written
information was given to the superior authorities. There is no
written proof communicating the said information to his
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
superior authorities. Section 42(2) requires that where an officer
takes down an information in writing under sub-section (1) he
shall send a copy thereof to his immediate senior officer. In the
present case, there is no whisper of any such transmission taking
place in accordance with law and such document has been
marked as exhibit in the trial which could satisfy the mandate of
the aforesaid sections. The non-compliance of the mandate of
section 42 is not only impermissible but also goes against the
case of the prosecution.
37. From the decisions of the Hon'ble Supreme
Court in the case of Karnail Singh vs. State of Haryana
reported as (2009) 8 SCC 539 and subsequent string of
decisions in the case of Sukhdev Singh v. State of Haryana
reported as (2013) 2 SCC 212 and State of Rajasthan v. Jagraj
Singh @ Hansa reported as (2016) 11 SCC 687 what clearly
flows is that though strict and literal compliance may not be
pressed, yet flagrant disregard and non-compliance would
definitely go against the case of the prosecution.
38. So far as the recovery of charas from the
appellant is concerned, the compliance of section 50 of the
N.D.P.S. Act is also mandatory. In the present case, the search
and seizure has been made by the head constable in violation of
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
section 50 of the N.D.P.S. Act and the search and seizure from
the appellant is in complete violation of sections 42 and 50 of
the N.D.P.S. Act and in view of law laid down by the Hon'ble
Supreme Court in State of Punjab vs. Baldev Singh (supra);
Beckodan Abdul Rahiman (supra) and Jagraj Singh @ Hansa
(supra).
39. Now coming to the fatal error regarding the
seizure and the seizure report prepared. In the present case, the
seizure carried out by the police authorities suffers from fatal
errors which cannot be overlooked. On first score, two
independent seizure list witnesses namely, Ravi Kumar and
Roshan Kumar have not been produced by the prosecution
during the course of the trial to corroborate the prosecution
story. On the second score, according to the prosecution, the
appellant had thrown an object (bag/belt), however, the glaring
discrepancy is that the police had failed to seize the aforesaid
object and the same is not a part of the seizure list.
40. Further, there are grave inconsistencies in the
statements of P.W.-1, P.W.-2 and P.W.-3. P.W.-2, in his cross
examination, at paragraph no.9 has deposed that the belt and
packets were seized and the seizure list for the same was also
prepared. However, the seizure list marked as Exhibit-1 only
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
mentions the recovery of 02 kilograms of charas and there is no
whisper of recovery of any object (belt/bag) on the
aforementioned seizure list, which was allegedly thrown by the
appellant and later retrieved by the team of S.S.B. personnel.
Contrary to the deposition of P.W.-2, the P.W.-1 in his cross-
examination at paragraph no.13 has deposed that the object
(belt/bag) was not seized. Therefore, it is clear that there are
fatal inconsistencies in the deposition of aforesaid witnesses
which castes shadow of doubt on the veracity and genuineness
of the seizure carried out by the police.
41. Moreover, though mere non-examination of
the seizure list witnesses in itself may not have been fatal if the
seizure list would have been uncontroverted and proved in
accordance with law beyond all shadow of doubt. However, the
absence of the independent witness assumes significance since
the statements of the official witnesses are conflicting and non-
seizure of the belt/bag further casts doubt on the veracity and
geniuses of the seizure, which goes to the very root of the
present case. It is in this backdrop that the non-examination of
independent seizure list witnesses would be fatal to the
prosecution case.
42. It also appears from the record that on
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
28.11.2018 an application was filed by the Investigating Officer
to seal the seized material for sending the same to the F.S.L.
Muzaffarpur and it appears that seized material was not sealed
from the place of occurrence otherwise there was no occasion
for the Investigating Officer to file an application for sealing the
contraband. This Court finds merit in the argument advanced by
the appellant that had the contraband so seized were sealed at
the very place of occurrence then the prosecution would have
only filed the application for taking samples of the contraband
and thereafter re-sealing the same, but the very fact that an
application was filed to seal the seized material itself
demonstrates that the contraband was not sealed at the place of
occurrence and as such, the contraband remained unsealed at the
maalkhana of the police station for 3 days. This lapse on the
part of the prosecution has caused prejudice to the appellant
since chances of tampering with the samples during this
intervening period could not be negated. Further, non-
production of the Malkhana register and non-examination of the
Malkhana in-charge during the course of the trial is also
damaging the prosecution case.
43. In view of the aforesaid discussions
particularly the grave procedural lapses vitiates the prosecution
Patna High Court CR. APP (SJ) No.762 of 2021 dt.06-05-2025
case since the very seizure could not stand the scrutiny of law. I
am of the view that the prosecution has failed to prove its case
beyond all shadow of doubt and therefore, the impugned
judgment of conviction and the order of sentence can not be
sustained.
44. Therefore, the impugned judgment of
conviction dated 06.07.2020 and the order of sentence dated
07.07.2020 passed by Additional Sessions Judge-II, West
Champaran, Bettiah, in Trial No.07 of 2019, is hereby set aside.
45. The appellant is acquitted of all the charges
levelled against him.
46. Accordingly, the appeal stands allowed. The
appellant is discharged from the liabilities of his bail bonds.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 20.01.2025
Uploading Date 14.05.2025
Transmission Date 14.05.2025
