Patna High Court

Dilip Kumar SahversusThe Union of India through DRI, Muzaffarpur

Decided: 2 April 2026
Disposal: ALLOWED
Bench: RAJEEV RANJAN PRASAD SONI SHRIVASTAVA

Holding

The conviction and sentence under Section 20(b)(ii)(c) of the NDPS Act are set aside due to non‑compliance with statutory search, seizure and sampling procedures, resulting in the appellants’ acquittal.

Summary

The appellants Surendra Prasad and Dilip Kumar Sah were convicted under Section 20(b)(ii)(c) of the NDPS Act for trafficking 525 kg of ganja seized from a truck in Muzaffarpur. They appealed, contending that the search and seizure were conducted without complying with Section 42(2) of the NDPS Act, that the sampling, sealing and chain‑of‑custody procedures mandated by the Standing Order and Section 52A were defective, and that confessional statements under Section 67 were improperly used. The High Court examined the prosecution’s evidence, found serious irregularities in the recording of secret information, the preparation and handling of samples, the non‑production of key witnesses, and the lack of proper judicial supervision. Relying on Supreme Court precedents, the Court held that these procedural violations created reasonable doubt and vitiated the prosecution’s case. Consequently, the conviction and sentence were set aside, and the appellants were ordered to be released.

Issues considered

Whether the search and seizure complied with the mandatory requirements of Section 42(1) and 42(2) of the NDPS Act
Whether the sampling, sealing and dispatch of the seized ganja complied with the Standing Order/Section 52A of the NDPS Act
Whether the panchnama and statements of seizure‑list witnesses are admissible without cross‑examination
Whether confessional statements recorded under Section 67 can be used to sustain a conviction
Whether the prosecution proved the charge under Section 20(b)(ii)(c) beyond reasonable doubt in view of the procedural lapses

Legislation cited

Criminal Procedure Code — s. 161, 293, 313
Narcotic Drugs & Psychotropic Substances Act, 1985 — s. 20(b)(ii)(c), 23, 25, 42(1), 42(2), 52A, 67

Subjects

NDPS Act
search and seizure
Section 42
Section 52A
sampling procedure
chain of custody
confessional statement
Article 20(3)
drug trafficking
evidentiary standards

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1013 of 2024
Arising Out of PS. Case No.-26 Year-2023 Thana- D.R.I District- Muzaffarpur
======================================================
Surendra Prasad, Son of Late Lakhraj Mahto, Resident of Village- Singhpur
Haraiya, P.S- Raxaul (Haraiya), District- East Champaran.

... ... Appellant
Versus
The Union of India through Custom Commissioner, Muzaffarpur.

... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1074 of 2024
Arising Out of PS. Case No.-26 Year-2003 Thana- D.R.I District- Muzaffarpur
======================================================
Dilip Kumar Sah Son of Sri Yogi Lal Sah Resident of Village - Nayagaon,
P.O.- Nayagaon, P.S. -Nayagaon, District -Saran.

... ... Appellant
Versus
The Union of India through DRI, Muzaffarpur
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1013 of 2024)
For the Appellant : Mr. Manish Kumar No. II, Advocate
Mr. Santosh Bharti, Advocate
Mr. Madhurendra Kumar, Advocate
For the Respondent : Mr. Anshuman Singh, Senior SC
(In CRIMINAL APPEAL (DB) No. 1074 of 2024)
For the Appellant : Mr. Ramakant Sharma, Senior Advocate
Mr. Umesh Prasad, Advocate
For the Respondent : Mr. Anshuman Singh, Senior SC
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 02-04-2026

Heard Mr. Ramakant Sharma, learned Senior Counsel,

Mr. Manish Kumar No.II, learned counsel and Mr. Santosh Bharti,

learned counsel representing the appellants in both the appeals and
Patna High Court CR. APP (DB) No.1013 of 2024 dt.02-04-2026
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Mr. Anshuman Singh, learned Senior Counsel representing the

Directorate of Revenue Intelligence (DRI).

2. Both the appeals have been preferred for setting aside

the judgment of conviction dated 27.06.2024 (hereinafter referred

to as the ‘impugned judgment’) and the order of sentence dated

01.07.2024 (hereinafter referred to as the ‘impugned order’)

passed by the learned Exclusive Special Judge-II (NDPS),

Muzaffarpur (hereinafter referred to as the ‘learned trial court’) in

NDPS Case No. 26 of 2023 arising out of DRI Case No. 26 of

2003. By the impugned judgment, the appellants have been

convicted for the offences punishable under Section 20(b)(ii)(c) of

the Narcotics Drugs & Psychotropic Substances Act (in short

‘NDPS Act’) and by the impugned order, they have been ordered

to undergo rigorous imprisonment for fifteen years (15) years each

with a fine of Rs.50,000/- each under Section 20(b)(ii)(c) of the

NDPS Act and in default of payment of fine, they have to further

undergo simple imprisonment for one year.

Prosecution Case

3. The complainant, who was an Intelligence Officer at

Directorate of Revenue Intelligence, Muzaffarpur, has alleged that

on 16.11.2003 on the basis of specific information, he had

intercepted one truck bearing Registration No. WB-25-2127 along
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with occupant of the truck, namely, Loki Rai and Dilip Kumar Sah

at Chandani Chowk, Muzaffarpur. On search, in presence of

independent witnesses, 28 bags or 56 packets of Ganja weighing

539 kgs (gross weight) or 525 kgs (Net Weight) was recovered

from the truck which was concealed below the consignment of 64

bags of cattle feed. The recovered 525 kgs of Ganja and the Truck,

which was used as mode of conveyance for transportation of

Ganja, were seized under Section 42(c) of the NDPS Act. Further,

the 64 bags of cattle feed used for concealment of Ganja was also

seized.

It is further alleged that the above-named accused persons in

their voluntary statement tendered before the independent

witnesses admitted their guilt as regards their conscious

involvement in trafficking of Nepali Ganja. They also stated that

the Ganja was loaded on the truck at Laxmipur, Raxaul, Bihar in

their conscious knowledge by the person, namely, Surendra Ji of

Durga Transport and Yugal Mistry near Sona Cinema, Raxaul and

the Ganja was to be delivered at Fatuha to a person, namely, Ram

Prawesh at Fatuha Danapur. They could not disclose the complete

address of the said Ram Parwesh and stated that they had to park

the vehicle near Kacchi Dargan at Fatuha and had to deliver Ganja

to the agent of Ram Prawesh on the direction of Yugal Mistri. They
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further stated that they were carrying Ganja from Raxual to Fatuha

consciously for transportation charges of Rs.15,000/-. The above-

named accused persons were arrested and forwarded to judicial

custody on 17.11.2003.

It is further alleged that in course of follow up action, the

accused Sri Surendra Prasad, son of Sri Lakharaj Mahato, R/o

Village- Harreiyen, P.S.- Raxaul, East Champaran was

apprehended and subsequently arrested on 18.11.2003 and

forwarded to judicial custody on 19.11.2003 for associating in

trafficking of Ganja. It is also stated that the seized ganja was sent

for chemical analysis to the Central Revenue Control Laboratory

wherein it was reported by the Chemical Examiner, C.R.C.L. New

Delhi, vide end F.N.-1/ND/R/2003-CLD-299(N)/24.11.2003 dated

24.11.2002 that the same is “Ganja” within the meaning of NDPS.

It is stated that in course of inquiry/investigation conducted,

the accusation against (i) Loki Rai, son of Sri Bilat Rai and (ii)

Dilip Kumar Sah, son of Sri Yogi Lal Sah, the accused persons,

who are members of big smuggler syndicate operating from Nepal

and indulged in smuggling of Nepali ganja into India, were fully

established. Further from the statement of the accused Loki Rai, it

appeared that the accused Surendra Prasad, son of Lakhraj Mahato

is also involved in the case.
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4. Learned trial court took cognizance of the offences

under Sections 20, 23 and 25 of the NDPS Act agaisnt (1) Loki

Rai, (2) Dilip Kumar Sah and (3) Surendra Prasad vide order dated

27.02.2004. Thereafter, vide order dated 26.10.2009, records of the

accused Loki Rai was split off.

5. Charges were read over and explained to the accused

persons in Hindi to which they pleaded not guilty and claimed to

be tried. Accordingly, vide order dated 12.09.2012, charges were

framed against (1) Dilip Kumar Sah and (2) Surendra Prasad

under Sections 20(b)(ii)(c), 23 and 25 of the NDPS Act.

6. In course of trial, the prosecution examined as many

as three witnesses and exhibited several documentary evidences.

The names of the prosecution witnesses and the exhibits are being

shown hereunder in a tabular form:-

List of Prosecution witnesses

Prosecution Name of Witness Description
Witness No.
PW-1 Rakesh Ranjan Intelligence officer of
DRI
PW-2 Rajesh Kumar Shrivastav Intelligence officer of
DRI
PW-3 Shailesh Kumar Sinha

List of Exhibits on behalf of the Prosecution

Exhibit No. Description of the Exhibit Proved by/Attested by
‘1’ Seizure List PW-1
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‘2’ Statement of Dilip Kumar Sah PW-2

‘2/1’ Statement of Lauki Ray PW-2

‘2/2’ Statement of Surendra Prasad PW-2

‘3’ Panchnama PW-2

‘4’ Section-1 of sample of test memo PW-2

‘5’ Section 2 of Test Report of sample PW-2
of test memo
‘6’ Certification Paper PW-2

‘7’ Panchnama of Recovery Memo PW-2

‘8’ Complaint Petition PW-2

‘9’ Entry of seized article in the register PW-3
of Custom Godown

List of Material Exhibit

Material Object No. Description of the Exhibit Proved by/Attested by

Material Exhibit ‘1’ Signed and sealed envelope of PW-3
sample

7. Thereafter, the statements of the appellants were

recorded under Section 313 of the CrPC in which they denied the

allegations and pleaded innocence.

Findings of the Learned Trial Court

8. Learned trial court after examining the evidences

available on the record found that the prosecution witnesses in

their deposition have supported the case of the prosecution on the

point of search, seizure and sampling of the seized ganja.
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9. Learned trial court found that on 16.11.2003, PW-2,

on secret information intercepted a truck on NH-28 and from the

said truck ganja was found concealed under the cattle feed.

10. Learned trial court further found that in the presence

of two independent witnesses, namely, Sudhir Kumar and

Nagendra Chaudhary, truck was searched and 56 packets in 28

sacs containing altogether 525 kgs of ganja was recovered.

Thereafter, PW-2 collected three samples each of 50-50 gms and

sent the samples of seized substance which was confirmed to be

ganja by the Chemical Examination Report (Exhibit ‘5’). Learned

trial court found that the certification of the seized 525 kg ganja

deposited in the customs godown was done by the Judicial

Magistrate.

11. Learned trial court after considering all the facts and

circumstances of the case held that the prosecution has been able

to prove the charge under Section 20(b)(ii)c of the NDPS Act

against these appellants beyond all reasonable doubts, however,

prosecution has failed to prove the charges under Sections 23 and

25 of the NDPS Act. Accordingly, the appellants have been

convicted under Section 20(b)(ii)(c) of the NDPS Act.
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Submissions on behalf of the Appellants

12. Learned Senior Counsel for the appellants submits

that the present case has been registered by the DRI on the basis

of a search and seizure based on a secret information said to have

been received by the complainant/informant (PW-2). However,

there is no compliance with Section 42(2) of the NDPS Act.

Relying upon the judgment of the Hon’ble Supreme Court in the

case of Boota Singh v. State of Haryana reported in (2021) 19

SCC 606 and Karnail Singh v. State of Haryana reported in

(2009) 8 SCC 539, learned Senior Counsel for the appellants

would submit that there being no compliance with sub-section (2)

of Section 42 of the NDPS Act, the very search and seizure

procedure has not been conducted in accordance with law.

13. Learned Senior Counsel for the appellants submits

that the seizure is said to have taken place on 16.11.2003 at 15:30

Hours, the place of seizure has been vaguely shown as

“Muzaffarpur, Bihar”. In the Panchnama prepared by PW-2, it is

recorded that the vehicle being Truck bearing Registration No.

WB25- 2127 was chased at about 12:30 PM by the officers of the

DRI at NH-28 and after overtaking the said truck was stopped. The

seizure list witnesses, namely, Sudhir Kumar and Nagendra

Chaudhary who were the residents under Brahmpur Police Station
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in the district of Muzaffarpur claimed that they were standing at

Chandni Chowk, Muzaffarpur where they had seen the officers

chasing the truck and in their presence, the search and seizure were

conducted. In course of search, 64 packets of cattle feeds and 28

plastic packets of ganja like substance were seized from the carrier

of the truck. It is submitted that as per the prosecution case, 56

packets ganja were seized which were weighed 539 kg and the net

weight was found at 525 kg of which three samples of 50 gm each

were prepared and kept in a yellow colour plastic coated envelope

which was sealed. The seizure list witnesses were not produced in

course of trial.

14. It is, however, submitted that from the test memo

(Exhibit ‘4’), it would appear that the Seizing Officer who

prepared the test memo only on 17.11.2003 has recorded that one

sample was prepared on 16.11.2003 and the same was dispatched

on 17.11.2003. In front of the column showing “number of sample

and marking of each of them for identification”: it is recorded “one

sealed with the seal of Directorate of Revenue Intelligence”. It is,

thus, submitted that the statements made in the panchnama that

three samples were prepared of 50 gm each stand falsified from

the test memo (Exhibit ‘4’).
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15. It is further submitted that the report of the chemical

examination (Exhibit ‘5’) has not been duly tendered in evidence

and the author of the documents have not come in the doc. Even

PW-2 has not tendered it in accordance with law, therefore, the

very admissibility of Exhibits ‘5’ and ‘6’ would be doubtful.

16. Learned Senior Counsel further submits that it would

appear from the trial court’s records that on 17.11.2003, the arrest

memo, seizure memo, panchnama, voluntary statement, fardbeyan

were produced in the trial court. The two arrested accused were

also produced who were taken into judicial custody. On that day,

the I.O. did not produce the samples, if any prepared by him. The

I.O. did not produce the test memo (Exhibit ‘4’) which is said to

have been prepared by him on 17.11.2003. No inventory was

prepared and produced. The I.O. did not seek any permission from

the learned trial court to send the samples of ganja prepared by

him to a designated forensic science laboratory.

17. Learned Senior Counsel further submits that the I.O.

filed the application in the trial court for appointment of a learned

Magistrate for certification of inventory and drawal of samples.

From Exhibit ‘6’ which is the certification paper bearing signature

of the learned Judicial Magistrate, Muzaffarpur, it would appear

that a formal certification has been done by the learned Magistrate
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on 13.12.2004. In the column showing description of goods, ganja

has been shown with a quantity of 56 packets for 525 kg clearly

suggesting that no sample was prepared out of the ganja produced

before the learned Magistrate for certification. This would create

doubt over the sanctity of the document (Exhibit ‘6’). The learned

Magistrate has not been examined. Had the I.O. (PW-2) prepared

the sample on 16.11.2003 by taking 50 gm from 3 different

packets, the weight of the ganja could not have remained the same

as stated in Exhibit ‘6’.

18. Learned Senior Counsel further submits that in this

case, the very preparation of the sample of ganja is highly

doubtful. Samples were taken only from three packets. It has not

been prepared in presence of the accused in terms of the Standing

Order No. 1 of 1988 dated 15.03.1988. The test memo does not

bear any signature of the forwarding officer. The Exhibit ‘5’ would

show that date of receipt of ganja in laboratory is 24.11.2003 but

the quantity received in the laboratory is said to be 32.7 gm only.

Who took the samples to the laboratory is not known.

19. Learned Senior Counsel further submits that in this

case, even as the certificate issued by the learned Magistrate

(Exhibit ‘6’) shows that the representative sample is drawn, no

representative sample was produced before the learned trial court
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either for sending the same to the FSL or as material exhibit after

destruction of the ganja in terms of Section 52A of the NDPS Act.

This would create huge doubt over the mandatory compliances

with the provisions of law which are in the nature of safeguards

provided to the accused.

20. Learned Senior Counsel has placed reliance on the

judgment of the Hon’ble Supreme Court in the case of Surepally

Srinivas Vs. The State of Andhra Pradesh (now State of

Telangana) reported in 2025 SCC OnLine SC 683 and the

judgments of this Court in the case of Aslam Ansari Vs. The

State of Bihar and Another in Criminal Appeal (DB) No. 137 of

2023, Lakshaman Mahto Vs. The State of Bihar in Criminal

Appeal (DB) No. 338 of 2016.

Submissions on behalf of the Respondent

21. On the other hand, Mr. Anshuman Singh, learned

Senior Standing Counsel for the DRI has contested the appeal.

Learned Senior SC submits that in this case, the fact that there was

a secret information and on that basis, search was conducted is

recorded in the panchnama and in the complaint petition which

was filed later on.
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22. Learned Senior SC submits that non-production of

the seizure list witnesses would not take away the sanctity of the

seizure of ganja.

23. Learned Senior SC further submits that three

samples were prepared out of the seized ganja, however, it is not

contested that in the test memo (Exhibit ‘4’), there is mention of

only one sample and not three.

24. Learned Senior SC submits that even as Exhibit ‘4’

has not been tendered in evidence through a competent witness

and the signature of the author of the document and the name of

the author of the document (Exhibit ‘4’) has not been disclosed by

PW-2 in his deposition, the document is admissible in evidence in

terms of Section 293 CrPC.

25. Learned Senior SC further submits that in view of

the judgment of the Hon’ble Supreme Court in the case of

Narcotics Control Bureau Vs. Kashif reported in (2024) 11 SCC

372, any illegality or irregularity in compliance with Section 52A

of the NDPS Act would not render the whole trial vitiated.

26. Learned Senior SC has also relied upon a Division

Bench judgment of this Court in the case of Ali Ahmad Vs. The

State of Bihar in Criminal Appeal (DB) No. 349 of 2023.
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27. Learned Senior SC has further 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 110 and the judgment in the case of Jothi alias Nagajothi

Vs. State. Rep. By the Inspector of Police reported in 2025 SCC

OnLine SC 2774.

Consideration

28. Having heard learned Senior Counsel for the

appellants, learned Senior Standing Counsel for the DRI and upon

perusal of the trial court’s records, this Court finds that the search

and seizure of the truck and the contraband in question was

conducted on the basis of a prior secret information that one truck

bearing Registration No. WB-25-2127 was coming with some

cattle feeds beneath which ganja has been concealed. Rakesh

Ranjan (PW-1), who was posted as Intelligence Officer in DRI,

Muzaffarpur on 16.11.2003, was a member of the team which had

chased the truck, stopped it and had participated in the search,

seizure and sampling procedure. He has stated in his evidence that

the secret information was recorded by R.K. Shrivastava in DRI-I.

R.K. Shrivastava has been examined in this case as PW-2. In his

examination-in-chief, he has not stated that he had recorded the

secret information. This DRI-1 has not been produced by the
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prosecution. In the kind of the evidence on this aspect of the

matter, the submission of learned Senior Counsel for the appellants

that there is non-observance with the mandate of Section 42(2) of

the NDPS Act, is correct. In the case of Karnail Singh (supra), the

Hon’ble Supreme Court has been pleased to held as under:

“35. In conclusion, what is to be noticed is that
Abdul Rashid1 did not require literal compliance
with the requirements of Sections 42(1) and 42(2)
nor did Sajan Abraham2 hold that the requirements
of Sections 42(1) and 42(2) need not be fulfilled at
all. The effect of the two decisions was as follows:
(a) The officer on receiving the information [of
the nature referred to in sub-section (1) of
Section 42] from any person had to record it in
writing in the register concerned and forthwith
send a copy to his immediate official superior,
before proceeding to take action in terms of
clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the
officer was not in the police station, but while he
was on the move either on patrol duty or
otherwise, either by mobile phone, or other
means, and the information calls for immediate
action and any delay would have resulted in the
goods or evidence being removed or destroyed,
it would not be feasible or practical to take down
in writing the information given to him, in such
a situation, he could take action as per clauses
(a) to (d) of Section 42(1) and thereafter, as soon
as it is practical, record the information in
writing and forthwith inform the same to the
official superior.
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in
regard to writing down the information received
and sending a copy thereof to the superior
officer, should normally precede the entry,

1. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513: 2000 SCC (Cri) 496
2. Sajan Abraham v. State of Kerala, (2001) 6 SCC 692: 2001 SCC (Cri) 1217
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search and seizure by the officer. But in special
circumstances involving emergent situations, the
recording of the information in writing and
sending a copy thereof to the official superior
may get postponed by a reasonable period, that
is, after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance with
requirements of sub-sections (1) and (2) of
Section 42 is impermissible, delayed compliance
with satisfactory explanation about the delay
will be acceptable compliance with Section 42.
To illustrate, if any delay may result in the
accused escaping or the goods or evidence being
destroyed or removed, not recording in writing
the information received, before initiating
action, or non-sending of a copy of such
information to the official superior forthwith,
may not be treated as violation of Section 42.
But if the information was received when the
police officer was in the police station with
sufficient time to take action, and if the police
officer fails to record in writing the information
received, or fails to send a copy thereof, to the
official superior, then it will be a suspicious
circumstance being a clear violation of Section
42 of the Act. Similarly, where the police officer
does not record the information at all, and does
not inform the official superior at all, then also it
will be a clear violation of Section 42 of the Act.
Whether there is adequate or substantial
compliance with Section 42 or not is a question
of fact to be decided in each case. The above
position got strengthened with the amendment to
Section 42 by Act 9 of 2001.”

29. Karnail Singh (supra) has been discussed by the

Hon’ble Supreme Court in the case of Darshan Singh vs. State of

Haryana reported in (2016) 14 SCC 358. Paragraphs ‘13’ to ‘15’

of the said judgment are being extracted hereunder for a ready

reference:-
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“13. Having given our thoughtful consideration to
the submission advanced at the hands of the learned
counsel for the respondent, we are of the view that
the mandate contained in Section 42(1) of the NDPS
Act, requiring the recording in writing, the details
pertaining to the receipt of secret information, as
also, the communication of the same to the superior
officer are separate and distinct from the procedure
stipulated under the provisions of the Criminal
Procedure Code. Sub-section (1) of Section 41 of the
NDPS Act provides that a Metropolitan Magistrate
or a Magistrate of the First Class or any Magistrate
of Second Class specially empowered by the State
Government may issue a warrant for the arrest of
any person whom he has reason to believe to have
committed any offence punishable under Chapter IV.
Sub-section (2) of Section 41 refers to issuance of
authorisation for similar purposes by the officers of
the Departments of Central Excise, Narcotics,
Customs, Revenue Intelligence, etc. Sub-section (1)
of Section 42 of the NDPS Act lays down that the
empowered officer if he has a prior information
given by any person, should necessarily take it down
in writing, and where he has reason to believe from
his personal knowledge, that offences under Chapter
IV have been committed or that materials which may
furnish evidence of commission of such offences are
concealed in any building, etc. he may carry out the
arrest or search, without warrant between sunrise
and sunset and he may do so without recording his
reasons of belie. The two separate procedures
noticed above are exclusive of one another.
Compliance with one, would not infer compliance
with the other. In the circumstances contemplated
under Section 42 of the NDPS Act the mandate of
the procedure contemplated therein will have to be
followed separately, in the manner interpreted by
this Court in Karnail Singh case2 and the same will
not be assumed, merely because the Station House
Officer concerned had registered a first information
report, which was also dispatched to the
Superintendent of Police, in compliance with the
provisions of the Criminal Procedure Code.

2. Karnail Singh v. State of Haryana, (2009) 8 SCC 539: (2009) 3 SCC (Cri) 887
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14. In the above view of the matter, it is not possible
for us to accept the submission of the learned
counsel for the respondent State that the registration
of the first information report at the hands of the
Station House Officer, Police Station Shahar,
Panipat and its communication to the Superintendent
of Police, Panipat would constitute sufficient
compliance with the mandate of Section 42 of the
NDPS Act.
15. In the aforesaid view of the matter, we are
satisfied that Section 42 of the NDPS Act was not
complied with at all, insofar as the present
controversy is concerned. Thus viewed, Conclusion
(d) recorded in para 35 of the judgment rendered in
Karnail Singh case2 would fully apply to the facts
and circumstances of the present case, and we are
left with no other option, but to set aside the
conviction and the sentence of imprisonment of the
appellant-accused Darshan Singh. Ordered
accordingly. The appeal stands allowed.”

30. In the facts of the present case, this Court would

record that there is no compliance with the requirements of Section

42(1) and 42(2) of the NDPS Act.

31. It is further found from the evidence that the search

of the truck was conducted in presence of two witnesses, namely

Sudhir Kumar and Nagendra Chaudhary, who were the residents

under Brahmpur Police Station in the district of Muzaffarpur, their

complete address is not available in the seizure list and they have

not been examined in course of trial. No plausible explanation has

been furnished by the prosecution for non-examination of the two

seizure-list witnesses. The seizure memo (Exhibit ‘1’) shows the

2. Karnail Singh v. State of Haryana, (2009) 8 SCC 539: (2009) 3 SCC (Cri) 887
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place of seizure “Muzaffarpur, Bihar”. PW-2 admits it. Thus, it is

evident that the actual place where truck was stopped and search

was conducted has not been recorded by the seizing officer. As per

the complainant (PW-2), 56 packets kept in 28 sacks were

recovered from the truck and these packets were containing ganja.

In his examination-in-chief, PW-2 has stated that at the time of

seizure, no one else was there. He has stated that from the seized

ganja, three samples of 50-50 gram were taken out and the samples

were kept in a yellow colour plastic on which he, the two accused

Lauki Rai and Dilip Kumar Sah and the two independent witnesses

had put their signature. He has admitted in the cross-examination

in paragraph ‘11’ that he had opened two packets of ganja and had

taken out the sample. It is, thus, evident from the deposition of the

complainant (PW-2) that the samples were not taken from all the

packets. In this regard, the submission of learned Senior Counsel

for the appellants that the sampling was not done in accordance

with the Standing Order No. 1 of 1989 dated 13th June, 1989 issued

by the Anti-Smuggling Unit, Department of Revenue, Ministry of

Finance, appears correct. Clause 2.2 of the Standing Order reads as

under:-

“2.2 All the packages/containers shall be serially
numbered and kept in lots for sampling. Samples
from the narcotic drugs and psychotropic
substances seized, shall be drawn on the spot of
recovery, in duplicate, in the presence of search
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witnesses (Panchas) and the person from whose
possession the drug is recovered, and a mention to
this effect should invariably be made in the
panchnama drawn on the spot.”

32. In the case of Noor Aga vs. State of Punjab

reported in (2008) 16 SCC 417, the Standing Order came for

consideration before the Hon’ble Supreme Court. It has been held

that the guidelines mentioned in the said Standing Order should

not only be substantively complied with, but in a case involving

penal proceedings, the rigours of such guidelines may be insisted

upon. Here, it is worth mentioning that in this case even though

PW-2 claims to have prepared three samples of 50 gram each out

of two packets only, he had not produced the samples in the court

and had not sought any direction for sending the sample to the

designated laboratory. In paragraph ‘17’, PW-2 has stated that the

seized ganja was not produced in the court. In paragraph ‘18’, he

admits that no prior permission was obtained for sending the

sample for examination. PW-2 has stated in paragraph ‘24’ of his

deposition that he had seized 525 kg of ganja and the committee

had destroyed the same. The defence suggested to this witness that

if 525 kg of ganja was seized and the same has been destroyed, it

means no sample was taken out. PW-2 denied the suggestion, but

at this stage when this Court goes through the trial court’s records,

it is found that the prosecution has brought on record page no. 43,
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serial no. 2 of Godown Entry Register (Exhibit ‘9’) to show that

ganja was kept in the godown vide entry no. 2. The quantity of

ganja is being shown as 525 kg in 25 bags. The prosecution case is

that ganja seized were 56 packets in 28 bags/sacks, therefore, there

is not only a difference in respect of the bags shown in the godown

create a huge doubt as to whether three samples of 50 gram each

were taken out.

33. At this stage, we would discuss the test memo

(Exhibit ‘4’). This has been prepared on 17.11.2003 by R.K.

Shrivastava (PW-2). In column ‘4’, the date and place of seizure

has been shown as “16.11.2003 Muzaffarpur”. In column ‘5’, date

of drawal and dispatch of sample has been shown as “16.11.2003

and 17.11.2003”. In column ‘6’, number of sample and marking on

each of them for identification has been shown as “One, sealed

with the seal of “Directorate of Revenue Intelligence”.” From the

test memo (Exhibit ‘4’), it is evident that only one sample of 50

gram (approx) has been shown, which was sealed with the seal of

the Directorate of Revenue, Intelligence. The date of drawal of the

sample is 16.11.2003, but the sample drawn and sealed by PW-2

on 16.11.2003 was not produced in the court with the other

documents on 17.11.2003. According to PW-2, the dispatch of
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sample was made on 17.11.2003, admittedly, no prior order was

obtained from the court for sending the sample to a designated

laboratory. PW-2 claimed in his deposition that samples were

prepared in presence of the accused, but there is no evidence of

preparation of samples in the presence of the accused, which is

again in violation of the provisions of the Standing Order and the

judgment of the Hon’ble Supreme Court in the case of Bharat

Aambale (supra).

34. The latter part of the test memo (Section-II) which is

meant for use in the laboratory, the date of receipt in the laboratory

is 24.11.2003 and the net weight found in the laboratory as shown

is 32.7 gm. This part (Section-II) has been shown signed by a

Chemical Examiner and an Analyst. This has been marked Exhibit

‘5’, at the instance of the complainant (PW-2). On perusal of

Exhibit ‘4’ and Exhibit ‘5’ together, it appears that while PW-2 has

shown preparation of a sample of 50 gram on 16.11.2003 and

dispatched the same to the laboratory on 17.11.2003, the same was

received in the laboratory on 24.11.2003. What was the mode of

dispatch, whether it was sent through any special messenger is not

evident from the deposition of PW-2. The net weight found in the

laboratory was 32.7 gram, whereas the sample prepared is said to

be of 50 grams (approx). Here, this Court finds that the seizing
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officer has, while filling up Exhibit ‘4’, recorded the quantity of

sample as “50 gram (approx)”, it means he was only tentative with

regard to the weight of the sample. His approximate weight shown

in Exhibit ‘4’ is not correct as per the information furnished in

Exhibit ‘5’. This would create huge doubt over the sampling

procedure. We have already mentioned hereinabove that PW-2

claimed that he had prepared three samples, what happened to the

other two samples is not known. We further find that Exhibit ‘5’

has been proved by the complainant (PW-2) in course of his

deposition. He has stated that the test report had come to him from

the laboratory. PW-2 has not even mentioned who is the author of

Exhibit ‘5’ and by what mode he had received the test report

(Exhibit ‘5’). PW-2 has admitted in paragraph ‘23’ of his

deposition that he had not mentioned about taking out of sample in

the seizure list. The defence has suggested that the fact that 525 kg

of ganja was seized and the same quantity was destroyed only

shows that no sample was taken out. Although, the complainant

(PW-2) has denied this suggestion but to this Court it appears that

the defence has been able to create doubt in the prosecution case.

The Inspector-cum-Godown In-charge (PW-3), who has proved

the entry in the godown register (Exhibit 9), has stated that the

seized articles were entered in the register of the year 2004-2005 at
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page no. 43 at serial no. 2. He has stated that in this case on

13.12.2004, in presence of the learned Judicial Magistrate, First

Class, Muzaffarpur, sample was taken out. He produced the

envelope (Material Exhibit No. ‘1’). On perusal thereof, we do not

find any seal and signature. In his cross-examination, this witness

has admitted that in the godown entry, there is no mention that

sample was taken out. He has admitted that on the envelope there

is no signature of any of the accused or the witnesses and on the

envelope there is no mention of the weight. Thus, this Court finds

that the ganja which was seized on 16.11.2003 was neither

produced in the court nor any permission was taken from the court

to keep the ganja in a designated godown. Only in the year 2004-

2005 register, an entry has been produced to show that the ganja

was kept in the godown but the chain of possession of the ganja,

where those were kept during all this period from 16.11.2003, has

not been established by the prosecution.

35. So far as the evidence against Surendra Prasad

(appellant in Criminal Appeal (DB) No. 1013 of 2024) is

concerned, it is the statement of the complainant (PW-2) that

Surendra Prasad was not present at the place of occurrence, he was

not explained the ramification of the statement under Section 67

and PW-2 had not given any certificate that his statement may go
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against him. He had not seized anything from the possession of

this appellant. PW-2 has stated in paragraph ‘15’ of his deposition

that he had recorded statement of the arrested persons under

Section 67 in the DRI Office, Muzaffarpur. Dilip Shah had stated

that ganja was loaded near Laxmipur Raxaul by Surendra

Transport. Dilip Shah had not said that who were the persons who

got loaded the ganja and he had not stated about the charges for

transportation. It is evident that the implication of this appellant is

solely on the basis of the vague statement of Dilip Kumar Shah.

PW-2 himself says that Dilip Kumar Shah had stated about a

person named Surendra Kumar, but he admits in paragraph ‘21’

that he could not verify the name and address of the persons,

namely Surendra and Jugal Mistry. We are, therefore, of the

opinion that the prosecution has not at all brought any material,

much less reliable piece of evidence, to connect Surendra (the

appellant in Criminal Appeal (DB) No. 1013 of 2024), as the

person who had loaded the ganja.

36. At this stage, we are conscious of the judgment in

the case of Kashif (supra) and Bharat Aambale (supra) where the

Hon’ble Supreme Court has discussed the scope, purpose and

effect of Section 52A of the NDPS Act. It has been held that mere

non-compliance or delayed non-compliance with Section 52A is
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not fatal unless the irregularity creates discrepancy affecting the

integrity of seized substance or rendering the prosecution case

doubtful. We would refer the judgment of the Hon’ble Supreme

Court in case of Surepally Srinivas (supra) where the Hon’ble

Supreme Court has discussed the case of Kashif (supra) and

Bharat Aambale (supra). Paragraph ‘13’, ‘14’, ‘15’ and ‘16’ of

the judgment in case of Surepally Srinivas (supra) are quoted

hereunder for a ready reference:-

“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
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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 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.
16. For the foregoing reasons, we are inclined to
extend the benefit of doubt to the appellants. The
judgment of conviction and order on sentence passed
by the Sessions Judge, since affirmed by the High
Court, stands set aside. The appeals stand allowed.”
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37. Learned Senior Standing Counsel for the DRI has

relied upon a judgment of the Hon’ble Supreme Court in case of

Jothi alias Nagajothi (supra) to submit that unless the appellant

lays down a foundational material to suggest that the sampling

process was unreliable or that the integrity of the samples stood

compromised, the appellants cannot succeed. Mere reduction in

weight of the sample cannot affect the identity or integrity of the

sample. We have gone through the facts of the case of Jothi alias

Nagajothi (supra). It would appear from a bare perusal of the said

judgment that in the said case PW-5 had forwarded the seized

samples to the court along with a requisition for chemical analysis.

The samples were received by PW-6 (Scientific Officer) through

PW-4. PW-6 analysed the sample, detected cannabinoids and

furnished the report. Thereafter, PW-5 recorded the statements of

PW-6 and the remaining members of the raiding team under

Section 161 of the CrPC. Contrary to the facts of the said case, in

the present case nothing has been brought on record in course of

trial to show that the complainant (PW-2) had forwarded the seized

samples to the court along with requisition for chemical analysis.

The officer who received the samples in the laboratory and the

officer who submitted the samples in the laboratory are not known

and they have not been examined. The authors of Exhibit ‘5’ have
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not deposed and during investigation, the I.O. has not recorded

their statements. In the case of Jothi alias Nagajothi (supra), the

Hon’ble Supreme Court found from the records that (i) the

samples were drawn at the spot in the presence of PWs 1 to 3, (ii)

the sample packets were duly sealed with signatures and seizure

details, (iii) the seized material, along with the samples, was

produced before the Magistrate and (iv) pursuant to the judicial

order dated 20.10.2019, sample ‘S-1’ was forwarded to the

Forensic Science Laboratory while ‘S-2’ was retained in judicial

custody. The Scientific Officer (PW-6) affirmed that the seal on

the packet received for analysis was intact and bore the correct

identifying particulars. Contrary to these materials on the record

before the Hon’ble Supreme Court, in the present case, this Court

finds that there is no such material. We have already pointed out

that PW-2 claimed that he had prepared three samples of fifty

gram each but he had not produced the samples in sealed condition

before the learned court and even the test report (Exhibit ‘4’) was

not filed in the court on 17.11.2003. The shortfall in the sample

sent to the laboratory is 17.22 gram within seven days, which has

not been explained by the prosecution.

38. The Standing Instruction No. 1 of 1988 dated

15.03.1988 of the Narcotics Control Bureau, Government of India,
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issued under Section 52 of the NDPS Act, prescribes the detailed

procedure for sampling, sealing and dispatching the sealed

samples to the laboratory for test. Clauses ‘1.4’, ‘1.5’, ‘1.6’ and

‘1.9’ of the Standing Instruction No. 1 of 1988 read as under:-

“1.4 If the drugs seized are found in packages/containers,
the same should be serially numbered for purposes of
identification. In case the drugs are found in loose form,
the same should be arranged to be packed in unit
containers of uniform size and serial numbers should be
assigned to each package/ container. Besides the serial
numbers, the gross and net weight, particular of the drug
and the date of seizure should invariably be indicated on
the packages. In case sufficient space is not available for
recording the above information on the package, a Card
Board label, should be affixed with a seal of the seizing
officer and on this Card Board label, the above details
should be recorded.
1.5 Place and time of drawal of sample
Samples from the Narcotic Drugs and Psychotropic
Substances seized must be drawn on the spot of recovery,
in duplicate, in the presence of search (Panch) witnesses
and the person from whose possession the drug has been
recovered, and mention to this effect should invariably be
made in the panch nama drawn on the spot.
1.6 Quantity of different drugs required in the sample
The Quantity to be drawn in each sample for chemical test
should be 5 grams in respect of all narcotic drugs and
psychotropic substances except in the cases of Opium,
Ganja and Charas/Hashish where a quantity of 24 grams in
each case is required for chemical test. The same quantities
should be taken for the duplicate sample also. The seized
drugs in the packages/containers should be well mixed to
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make it homogeneous and representative before the sample
in duplicate is drawn.
1.9 It needs no emphasis that all samples must be drawn
and sealed; in the presence of the accused, Panchnama
witnesses and seizing officer and all of them shall be
required to put their signatures on each sample. The official
seal of the seizing officer should also be affixed. If the
person, from whose custody the drugs have been
recovered, wants to put his own seal on the sample, the
same may be allowed on both the original and the duplicate
of each of the samples.”

39. In the case of Khet Singh vs. Union of India

reported in AIR 2002 SCC 1450, Noor Aga vs. State of Punjab

reported in (2008) 16 SCC 417 and Union of India vs.

Balmukund and Others reported in 2012 (9) SCC 161, the

Hon’ble Supreme Court had occasion to consider the question as

to whether or not the compliance with the guidelines issued by

Standing Instruction No. 1 of 1988 would vitiate the trial.

40. In the case of Khet Singh (supra), the Hon’ble

Supreme Court held in paragraph ‘10’ as under:

“10. The instructions issued by the Narcotics Control
Bureau, New Delhi are to be followed by the officer in-
charge of the investigation of the crimes coming within the
purview of the NDPS Act, even though these instructions
do not have the force of law. They are intended to guide the
officers and to see that a fair procedure is adopted by the
officer in-charge of the investigation…….”
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41. In the case of Noor Aga (supra), the Hon’ble

Supreme Court after giving thoughtful consideration to the

guidelines issued under the NDPS Act in the Standing Order, held

in paragraphs ‘89’ to ‘91’ as under:-

“89. Guidelines issued should not only be
substantially complied with, but also in a case
involving penal proceedings, vis-à-vis a
departmental proceeding, rigours of such guidelines
may be insisted upon. Another important factor
which must be borne in mind is as to whether such
directions have been issued in terms of the
provisions of the statute or not. When directions are
issued by an authority having the legal sanction
granted therefor, it becomes obligatory on the part of
the subordinate authorities to comply therewith.
90. Recently, this Court in State of Kerala v. Kurian
Abraham (P) Ltd.47, following the earlier decision of
this Court in Union of India v. Azadi Bachao
Andolan48 held that statutory instructions are
mandatory in nature.
91. The logical corollary of these discussions is that
the guidelines such as those present in the Standing
Order cannot be blatantly flouted and substantial
compliance therewith must be insisted upon for so
that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial
compliance with these guidelines by the
investigating authority which leads to drawing of an
adverse inference against them to the effect that had
such evidence been produced, the same would have
gone against the prosecution.”
47 (2008) 3 SCC 582
48 (2004) 10 SCC 1
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42. In the case of Union of India vs. Balmukund

(supra), the Hon’ble Supreme Court held in para ‘36’ as under:-

“36. There is another aspect of the matter which
cannot also be lost sight of. Standing Instruction
1/88 which has been issued under the Act, lays
down the procedure of taking samples. The High
Court has noticed that P.W.7 had taken samples of
25 gm each from all the five bags and then mixed
them and then sent to the laboratory. There is
nothing to show that adequate quantity from each
bag had been taken. It was a requirement of law.”

43. In the case of Jitendra and Another vs. State of

M.P. reported in (2004) 10 SCC 562, the Hon’ble Supreme Court

has held that mere oral evidence as to the features of the seized

contraband and production of panchnama does not discharge the

heavy burden which lies on the prosecution, particularly where the

offence is punishable with a stringent sentence as under the NDPS

Act. Panchnama is nothing but a document written by the police

officer concerned.

44. In the present case, we find that Rakesh Ranjan

(PW-1), who was posted as Intelligence Officer in DRI,

Muzaffarpur and was a member of the raiding team, has admitted

in paragraph ‘20’ of his deposition that the sample was not taken

from all the packets. Sample was taken from random packets. He

has not stated that after taking samples from the random packets
Patna High Court CR. APP (DB) No.1013 of 2024 dt.02-04-2026
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those were sealed as per the Standing Order. Rakesh Kumar

Srivastava (PW-2) has submitted that he had taken out three

samples of the seized ganja of fifty gram each but in the list memo

(Exhibit ‘4’), he talks of only one sample.

45. It appears from the records that the prosecution filed

a complaint petition (Exhibit ‘8’) through the complainant (PW-2).

It was filed only on 16.02.2004 (in the ordersheet, there appears a

typographical error as the date has been shown as 16.02.2003). A

perusal of the complaint petition would show that sample of the

seized ganja is said to have been sent for chemical analysis to the

Central Revenue Control Laboratory, but the complaint petition

does not disclose that in what mode it was sent to the said

laboratory. The complaint also states that the inquiry/investigation

so far established the case against the accused persons. The

complaint is completely silent on the mode and manner in which

the sampling was done. This Court has also noticed that as back as

on 17.11.2003 itself, a learned Magistrate was deputed for purpose

of certification of inventory of the seized goods under Section 52A

of the NDPS Act. The Office was directed to send the records to

the court of Sessions Judge for further proceeding. This order was

passed by learned In-charge CJM, whereafter the records were

transferred to the Court of Session. The certificate dated
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13.12.2004 (Exhibit ‘6’) would show Godown Entry No.

2/NDPS/04/05 dated 20.07.2004 which only demonstrates that

from 16.11.2003 to 20.07.2004, the seized contraband was not

lying in the godown then a question arises as to in whose custody

the contraband was lying during this period. We have already seen

that the packets seized were not serially numbered and samples

were drawn only from two packets, at no point of time the seized

contraband or the samples were produced in the court although the

certificate (Exhibit ‘6’), which is prepared in a given format, talks

of drawing of representative sample, the statement nowhere shows

the quantity of the representative sample drawn, if any, in presence

of the Magistrate. The learned Judicial Magistrate seems to have

done only a formality in the name of certification, he has not been

brought to depose in course of trial.

46. Learned Senior Standing Counsel for the DRI relied

upon the statement of the accused persons extracted by PW-2. This

statement was got recorded in the pen of Shri Satyanarayan, a

resident of Kachipakki, Atardah, who is the deed writer. This deed

writer Satyanarayan has not been examined in course of trial for

no plausible reason. The accused Dilip Kumar Shah is said to have

put his thumb impression on the statement (Exhibit ‘2’) but his

thumb impression has not been identified by any person. The two
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seizure list witnesses Sudhir Kumar and Nagendra Chaudhary,

who have put their signature on the statement of the accused Dilip

Kumar Shah, have not turned up in course of trial. The statement

of the appellant Surendra Prasad has been recorded on 18.11.2003.

This is a confessional statement made before the complainant

(PW-2). Two persons, namely, Braj Bhushan Kumar and Anil

Kumar Sinha are said to have signed the statement as witnesses

but again these two witnesses have not turned up. Prosecution has

relied upon the statement of the seizure list witnesses (Exhibit ‘3’)

which has been shown prepared in presence of the accused Dilip

Kumar Shah. This Court finds that the learned trial court has relied

upon the recorded statement of the seizure list witnesses without

giving any opportunity to the defence to cross-examine them. This

procedure adopted by the learned trial court to rely upon the

statement of the seizure list witnesses recorded by the complainant

(PW-2) is contrary to the fundamental principles of law in India.

The judicial pronouncement on the subject is very clear.

47. In the case of Tofan Singh vs. State of Tamil Nadu

reported in (2021) 4 SCC 1, the Hon’ble Supreme Court has

discussed the fundamental rights and the NDPS Act. It has been

observed that “the first most important constitutional protection

provided in the fundamental rights chapter so far as these cases are
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concerned is provided by Article 20(3), which is the well-known

right against self-incrimination. Article 20(3) reads as follows:

“(3) No person accused of any offence shall be
compelled to be a witness against himself.”
48. The majority view has held that the NDPS Act is to

be construed in the backdrop of Article 20(3) and Article 21.

Several safeguards are contained in the NDPS Act, which is of an

extremely drastic and draconian nature. The Hon’ble Apex Court

held that the interpretation of a statute like the NDPS Act must be

in conformity and in tune with the spirit of the broad fundamental

right not to incriminate oneself and the right to privacy. The

Hon’ble Supreme Court discussed the scope of Section 67 of the

NDPS Act keeping in view Sections 42 and 53. The case laws on

the subject have been reviewed. Paragraphs ‘81’ to ‘85’ of the

judgment from Tofan Singh (supra) case are quoted hereunder:-

“81. It is important to remember that an officer in
charge of a police station, when he investigates an
offence, begins by gathering information, in the course
of which he may collect evidence relating to the
commission of the offence, which would include
search and seizure of things in the course of
investigation, to be produced at the trial. Under the
scheme of the NDPS Act, it is possible that the same
officer who is authorised under Section 42 is also
authorised under Section 53. In point of fact,
Notification No. S.O. 822(E) issued by the Ministry of
Finance (Department of Revenue), dated 14-11-1985,
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empowered the following officers under Sections 42
and 67 of the NDPS Act:
“S.O. 822(E).—In exercise of the powers
conferred by sub-section (1) of Section 42 and
Section 67 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of
1985), the Central Government hereby
empowers the officers of and above the rank of
Sub-Inspector in the Department of Narcotics
and of and above the rank of Inspector in the
Departments of Central Excise, Customs and
Revenue Intelligence and in Central Economic
Intelligence Bureau and Narcotics Control
Bureau to exercise of the powers and perform
the duties specified in Section 42 within the
area of their respective jurisdiction and also
authorises the said officers to exercise the
powers conferred upon them under Section
67.”
82. Notification No. S.O. 823(E), also dated 14-11-
1985, the Ministry of Finance (Department of
Revenue), empowered the following officers under
Section 53(1) of the NDPS Act:

“S.O. 823(E).—In exercise of the powers
conferred by sub-section (1) of Section 53 of
the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985), the Central
Government, after consultation with all the
State Governments hereby invests the officers
of and above the rank of Inspector in the
Departments of Central Excise, Narcotics,
Customs and Revenue Intelligence and in
Central Economic Intelligence Bureau and
Narcotics Control Bureau with the powers
specified in sub-section (1) of that section.”
83. These notifications indicate that officers of and
above the rank of Inspector in the Departments of
Central Excise, Customs, Revenue Intelligence,
Central Economic Intelligence Bureau and Narcotics
Control Bureau were authorised to act under both
Sections 42 and 53. These Notifications dated 14-11-
Patna High Court CR. APP (DB) No.1013 of 2024 dt.02-04-2026
39/42

1985 were superseded by the following Notifications
issued by the Ministry of Finance (Department of
Revenue) on 30-10-2019:

“S.O. 3901(E).—In exercise of the powers
conferred by sub-section (1) of Section 42 and
Section 67 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of
1985), and in supersession of the notification
of the Government of India in the Ministry of
Finance, Department of Revenue number S.O.
822(E), dated 14-11-1985, published in the
Gazette of India, Extraordinary, Part II,
Section 3, sub-section (ii), except as respects
things done or omitted to be done before such
supersession the Central Government hereby
empowers the officers of and above the rank
of Sub-Inspector in Central Bureau of
Narcotic and Junior Intelligence Officer in
Narcotics Control Bureau and of and above
the rank of Inspectors in the Central Board of
Indirect Taxes and Customs, Directorate of
Revenue Intelligence, Central Economic
Intelligence Bureau to exercise the powers
and perform the duties specified in Section 42
within the area of their respective jurisdiction
and also authorise the said officers to exercise
the powers conferred upon them under
Section 67.”
“S.O. 3899(E).—In exercise of the powers
conferred by sub-section (1) of Section 53 of
the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985) and in
supersession of the Notification of the
Government of India in the Ministry of
Finance, Department of Revenue number S.O.
823(E), dated 14-11-1985, published in the
Gazette of India, Extraordinary, Part II,
Section 3, sub-section (ii), except as respects
things done or omitted to be done before such
supersession, the Central Government after
consultation with all the State Governments
hereby invests the officers of and above the
rank of Inspectors in the Central Board of
Indirect Taxes and Customs, Central Bureau
Patna High Court CR. APP (DB) No.1013 of 2024 dt.02-04-2026
40/42

of Narcotics, Directorate of Revenue
Intelligence, Central Economic Intelligence
Bureau and of and above the rank of Junior
Intelligence Officer in Narcotics Control
Bureau with the powers specified in sub-
section (1) of that section.”
84. Thus, even the new Notifications dated 30-10-2019
indicate that the powers under Sections 42 and 53 of
the NDPS Act are invested in officers of and above the
rank of Inspectors in the Central Board of Indirect
Taxes and Customs, Central Bureau of Narcotics,
Directorate of Revenue Intelligence, Central Economic
Intelligence Bureau and of and above the rank of
Junior Intelligence Officer in Narcotics Control
Bureau.

85. The observations of the Constitution Bench in
Mukesh Singh14 are, therefore, to the effect that the
very person who initiates the detection of crime, so to
speak, can also investigate into the offence—there
being no bar under the NDPS Act for doing so. This is
a far cry from saying that the scheme of the NDPS Act
leads to the conclusion that a Section 67 confessional
statement, being in the course of investigation, would
be sufficient to convict a person accused of an
offence.”

49. Upon discussions, the Hon’ble Supreme Court

answered the reference in Tofan Singh (supra) in paragraph ‘158’,

‘158.1’, ‘158.2’ as under:-

“158. We answer the reference by stating:

14. Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120
Patna High Court CR. APP (DB) No.1013 of 2024 dt.02-04-2026
41/42

158.1. That the officers who are invested with
powers under Section 53 of the NDPS Act are
“police officers” within the meaning of Section 25
of the Evidence Act, as a result of which any
confessional statement made to them would be
barred under the provisions of Section 25 of the
Evidence Act, and cannot be taken into account in
order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67
of the NDPS Act cannot be used as a confessional
statement in the trial of an offence under the NDPS
Act.”

50. We observe that Panchnama (Exhibit ‘3’) in itself

cannot be taken as a piece of evidence to prove the prosecution

case. The contents of the Panchnama were required to be proved

by the prosecution through cogent oral as well as documentary

evidence. The prosecutor cannot be allowed to become a judge in

his own case, therefore, it was incumbent upon the prosecution to

discharge their burden beyond all reasonable doubts. We have no

iota of doubt that the accused persons in this case laid down

sufficient foundation to create doubt in the prosecution story.

51. In result, we are of the considered opinion that the

impugned judgment and order are liable to be set aside and the

appellants have made out a case for their acquittal giving them the

benefit of doubt. The impugned judgment and order of the learned

trial court are hereby set aside.
Patna High Court CR. APP (DB) No.1013 of 2024 dt.02-04-2026
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52. These appeals are allowed.

53. The appellants are in jail, therefore, they shall be

released forthwith if not wanted in any other case.

54. Let a copy of the judgment together with the trial

court’s records be sent down to the learned trial court.

(Rajeev Ranjan Prasad, J)

(Soni Shrivastava, J)
lekhi/Rishi-
AFR/NAFR
CAV DATE
Uploading Date 19.04.2026
Transmission Date 19.04.2026

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