Patna High Court
Saurav Kumar @ Saurabh KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The conviction cannot be sustained as the prosecution failed to comply with the mandatory procedural safeguards under the NDPS Act; the appellant is acquitted.
Summary
The appellant was stopped by police while riding a motorcycle and two large packets of cannabis (totaling 47 kg) were seized. He was charged under Sections 20B(ii)(C) and 22 of the Arms Act and sentenced to 20 years' rigorous imprisonment and a fine. On appeal, the defence argued that the seizure and search were not conducted in accordance with Sections 42, 43 and 50 of the NDPS Act, that no proper sample seizure list or sealing was produced, and that the FIR did not record the required search procedures. The High Court found that the prosecution had failed to satisfy the mandatory procedural requirements and could not establish possession beyond reasonable doubt. Consequently, the Court allowed the appeal, acquitted the appellant of all charges, ordered his immediate release, and directed the return of the fine.
Issues considered
- The seizure and search of the cannabis complied with the procedural requirements of Sections 42, 43 and 50 of the NDPS Act.
- Whether the prosecution proved the appellant's possession of the contraband beyond reasonable doubt.
- Whether the appellant's prior alleged offences could be taken into account in sentencing.
- Whether convictions under Sections 20B(ii)(C) and 22 of the Arms Act require separate sentences.
Legislation cited
Subjects
- NDPS Act
- search and seizure
- procedural compliance
- acquittal
- conviction reversal
- evidence
- sample seizure list
- Criminal Procedure Code
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1114 of 2018
Arising Out of PS. Case No.-72 Year-2017 Thana- NAUGACHIA District- Bhagalpur
======================================================
Saurav Kumar @ Saurabh Kumar, Son of Ajay Kumar Jha, Resident of
Village – Tulsipur, Police Station- Kharik, District- Bhagalpur.
... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr. Imteyez Ahmed, Advocate
Mr. Shashi Shekhar, Advocate
Mr. Ritwaj Raman, Advocate
Ms. Somali Almarya, Advocate
Mr. Purushottam Kumar, Advocate
For the Respondent-State: Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 20-04-2026
This is an appeal under Section 374(2) of the Cr.P.C.
assailing judgment of conviction and order of sentence passed
by the learned Additional District and Sessions Judge Ist,
Court of Bhagalpur in NDPS Case No. 1391 of 2017 on
24.07.2018, convicting the appellant for committing offence
under Sections 20B (ii)(C) and 22 of the NDPS Act and
sentencing him to suffer rigorous imprisonment for 20 years
for the offence punishable under Section 20B (ii)(c) with a
fine of Rs. 1 lakh and in default of payment of fine, further
sentenced him for a period of six months of simple
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imprisonment. The learned Trial Judge was of the view that
since the appellant was sentenced for the offence under
Section 20B(ii)(C) no separate sentence is required to be
passed for the offence punishable under Section 22 of the
NDPS Act.
2. The aforesaid judgment passed by the learned trial
court is under challenge before us.
3. Factual aspect leading to the filing of the instant
appeal is as follows:-
4. Naugachhia P.S. Case No. 72 of 2017 dated 25 th
April, 2017 was registered against the appellant on the basis
of a suo moto complaint filed by one Sajany Kumar
Sudhanshu, Inspector of Police cum SHO of the P.S.
Naugachhia, stating inter alia that on 25th April, 2017 at about
6:00 PM he was performing mobile patrolling duty with arms
constable, namely, Raju Kumar, Motichandra Ratna and
Ashutosh Kumar. At about 8:00 PM, when they reached
village Srighur, Simra, they found two persons riding on a
motorcycle, were crossing Ajani Simra More at a high speed.
On suspicion, the police party tried to apprehend them and
when the said motorcycles were chased, the pillion rider fell
down on the ground, where a polybag was found in
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possession. The police party apprehended him. The
motorcycle rider fled away from the spot. The informant
asked the name of the said apprehended person, who disclosed
his name as Saurabh Kumar. On search, police recovered two
packets of cannabis from the possession of the said
apprehended person. One packet of cannabis weighted about
25 kgs and the other was about 22 kgs. The Inspector of
Police seized the said cannabis under proper seizure list in
presence of the witnesses at the spot. The accused put his LTI
on the seizure list and the copy of the same was handed over
to him. The witnesses also signed on the seizure list, thereafter
the accused was formally arrested and he was brought to
Naugachia police station.
5. The said complaint was treated as FIR and
Naugachhia P.S. Case No. 72/2017 was dated 25th April 2017
was registered against the appellant. Thereafter, one Md.
Mehtab Khan, a police officer, directed to investigate the said
case. On completion of investigation, police submitted charge-
sheet against the accused under Section 20 B(ii)(C)/22 of the
Arms Act. Since, the offence under the NDPS Act is triable by
the learned Special Judge in the rank of Additional Sessions
Judge, the case was transferred to the 1 st Court of the learned
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Additional Sessions Judge for trial and disposal.
6. In the Trial Court, prosecution examined as many
as eight witnesses, amongst them PW-1 is the informant. PW-
2 is a Constable of Police, who was discharging mobile duty
on 24th April, 2017. PW-3, Raju Kumar Singh is also a
Constable of Police discharging mobile duty on the date and
time of the occurrence. PW-4, Motilal Ratan is another
member of the raiding party. PW-5, Md. Mehtab Khan is the
Investigating Officer of this case. PW-6, Brahamdev Sharma
and PW-7, Md. Rakesh are the witnesses to seizure of
narcotics substance. PW-8, Ganesh Prasad Yadav was posted
as Malkhana Officer at Naugachia Police Station, he produced
Malkhana Register to show that seized 47 kgs of Cannabis
were kept in the Malkhana of Naugachia Police Station.
7. We have carefully perused and considered the
evidence of the witnesses adduced in Trial Court. We have
also considered the exhibited documents.
8. It is submitted by Mr. Ajay Kumar Thakur,
learned counsel on behalf of the appellant and ably assisted by
Mr. Ritwaj Raman that the Seizing Officer, i.e. PW-1 failed to
conduct search and seizure of the person of the accused, as per
the statutory directions and provisions contemplated in the
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N.D.P.S. Act. It is also submitted by Mr. Thakur that
according to PW-1, he seized two bags of Cannabis
containing 25 kgs and 22 kgs respectively. However, no
sample seizure list, sealing and levelling were made at the
spot by the Seizing Officer.
9. Secondly, in the F.I.R., he did not say anything
about the sample seizure list but in his evidence, PW-1 stated
that he prepared samples of seized Cannabis in two brown
coloured packets of 25 grams each. Thus, there is specific
contradiction between the evidence of the informant and the
statement made by him in the F.I.R. Neither the sample
seizure list nor the sample goods were produced during
investigation before the learned Magistrate for preparation of
samples from the sample seized goods in order to send the
same to the Forensic Science Laboratory (FSL). Therefore,
Mr. Thakur has raised a pertinent question as to whether the
sample seizure list was at all produced before the learned
Magistrate or not and secondly, if the samples allegedly
prepared by PW-1 were produced before the learned
Magistrate to prepare sample of contraband articles from
samples of seized goods for sending the same to the FSL for
chemical examination. Secondly, it is submitted by Mr.
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Thakur that no sample seizure list was exhibited during trial
of the case. There is also no evidence on behalf of the
prosecution that the said samples of contraband articles were
sealed and levelled. Thirdly, the learned counsel on behalf of
the appellant submits that in the instant case only the police
personnel had supported the prosecution case. Surprisingly
enough, though the independent seizure witnesses identified
their signature and Left Thumb Impression (LTI) on the
seizure list. No question was put by the prosecution in order to
corroborate the incident. They being the independent
witnesses could have the best witnesses regarding
apprehension of the accused/recovery of contraband articles
and seizure of the same. In the absence of such evidence, the
learned Trial Judge ought to have held that the prosecution
failed to prove the charge against the accused persons.
10. The procedure, for search, seizure and arrest
without warrant or authorization have been described in
Section 42 and 43 of the NDPS Act. The provisions read as
hereunder:-
“[42. Power of entry, search,
seizure and arrest without warrant or
authorisation.-- (l) Any such officer (being
an officer superior in rank to a peon, sepoy
or constable) of the departments of central
excise, narcotics, customs, revenue
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intellegence or any other department of the
Central Government including para-
military forces or armed forces as is
empowered in this behalf by general or
special order by the Central Government,
or any such officer (being an officer
superior in rank to a peon, sepoy or
constable) of the revenue, drugs control,
excise, police or any other department of a
State Government as is empowered in this
behalf by general or special order of the
State Government, if he has reason to
believe from personal knowledge or
information given by any person and taken
down in writing that any narcotic drug, or
psychotropic substance, or controlled
substance in respect of which an offence
punishable under this Act has been
committed or any document or other article
which may furnish evidence of the
commission of such offence or any illegally
acquired property or any document or other
article which may furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is
kept or concealed in any building,
conveyance or enclosed place, may between
sunrise and sunset,-
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any
door and remove any obstacle to such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof
and any other article and any animal or
conveyance which he has reason to believe
to be liable to confiscation under this Act
and any document or other article which he
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has reason to believe may furnish evidence
of the commission of any offence punishable
under this Act or furnish evidence of holding
any illegally acquired property which is
liable for seizure or freezing or forfeiture
under Chapter VA of this Act; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has
reason to believe to have committed any
offence punishable under this Act:
Provided that in respect of holder of a
licence for manufacture of manufactured
drugs or psychotropic substances or
controlled substances granted under this Act
or any rule or order made thereunder, such
power shall be exercised by an officer not
below the rank of sub-inspector:
Provided further that] if such officer has
reason to believe that a search warrant or
authorisation cannot be obtained without
affording opportunity for the concealment of
evidence or facility for the escape of an
offender, he may enter and search such
building, conveyance or enclosed place at
any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any
information in writing under sub-section (1)
or records grounds for his belief under the
proviso thereto, he shall within seventy-two
hours send a copy thereof to his immediate
official superior.]”
“43. Power of seizure and arrest in public
place.—Any officer of any of the
departments mentioned
in section 42 may—
(a) seize in any public place or in transit,
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any narcotic drug or psychotropic substance
or controlled substance in respect of which
he has reason to believe an offence
punishable under this Act has been
committed, and, along with such drug or
substance, any animal or conveyance or
article liable to confiscation under this Act,
any document or other article which he has
reason to believe may furnish evidence of the
commission of an offence punishable under
this Act or any document or other article
which may furnish evidence of holding any
illegally acquired property which is liable
for seizure or freezing or forfeiture under
Chapter VA of this Act;
(b) detain and search any person whom he
has reason to believe to have committed an
offence punishable under this Act, and if
such person has any narcotic drug or
psychotropic substance or controlled
substance in his possession and such
possession appears to him to be unlawful,
arrest him
and any other person in his company.
Explanation.—For the purposes of this
section, the expression “public place”
includes any public conveyance, hotel, shop,
or other place intended for use by, or
accessible to, the public.”
11. Section 50 of the NDPS Act lays down the
conditions under which search of persons shall be conducted.
Section 50 of the NDPS Act runs thus:-
“50. Conditions under which
search of persons shall be conducted.—(1)
When any officer duly authorised under
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section 42 is about to search any person
under the provisions of section 41, section
42 or section 43, he shall, if such person so
requires, take such person without
unnecessary delay to nearest Gazetted
Officer of any of the departments mentioned
in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the
officer may detain the person until he can
bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the
Magistrate before whom any such person is
brought shall, if he sees no reasonable
ground for search, forthwith discharge the
person but otherwise shall direct that
search be made.
(4) No female shall be searched
by anyone excepting a female.
(5) When an officer duly authorised under
section 42 has reason to believe that it is
not possible to take the person to be
searched to the nearest Gazetted Officer or
Magistrate without the possibility of the
person to be searched parting with
possession of any narcotic drug or
psychotropic substance, or
controlled substance or article or
document, he may, instead of taking such
person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as
provided under section100 of the Code of
Criminal Procedure, 1973.
(6) After a search is conducted
under sub-section (5), the officer shall
record the reasons for such belief which
necessitated such search and within
seventy-two hours send a copy thereof to
his immediate official superior.”
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12. It is needless to say that F.I.R. is the foundation
of a criminal case. In the F.I.R., the informant did not state as
to whether the accused was offered to be searched in presence
of a Gazetted Officer of any of the Departments mentioned in
Section 42 of the NDPS Act or before the nearest Magistrate.
Of course, sub-Section 5 of Section 50 empowers a Police
Officer to conduct search in the absence of any Gazetted
Officer or the Magistrate, if they are not available at the time
of search but such fact is required to be proved by the
prosecution.
13. In a case under the NDPS Act certain aspects are
required to be proved without reasonable doubt by the
prosecution, examining the Investigating Officer. The
Investigating Officer ensure to follow the following guidelines
and the following facts must be recorded in the case dairy:-
i) Raiding parties constitution, departure
with/without vehicle, arms and remuneration, route taken, the
name of the driver as well as accompanying of the informer.
ii) Number of independent public witnesses
requested, their place, their background i.e. whether they were
passersby, rickshaw pullers, residents etc., and reasons for not
joining.
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iii) Time must be noted for important aspects like
time of making general diary entry at the time of departure by
raiding party and also the time of return with the accused and
contraband articles.
iv) Time of actual search and seizure and
v) Time of apprehending of suspects.
14. Immediately after seizure, it is the duty of the
Arresting Officer to prepare the sample seizure list. This
sample becomes the part of the case property, especially when
the contraband articles are huge in quantity. So, the case
prepared must be properly sealed with standard seal and the
seal used must be handed over to any of the witnesses. While
taking the case property in his charge, the Station House
Officer (SHO) should counter seal it with his own seal, every
addition in the FSL/CFSL etc., must be duly signed by the
SHO.
15. In the instant case, Malkhana Officer was
examined by the prosecution as PW-8, he produced the
Malkhana Register. The relevant entry in the Malkhana
Register has been marked as Exhibit-11. On perusal of the
said exhibit, it is found that the Malkhana Officer received
total seized 47 kgs of Cannabis in two packets. Therefore, the
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claim of PW-1 that sample seizures were made has not been
proved. If the entire 47 kgs of Cannabis are kept in P.S.
Malkhana, then how the sample was taken for sending the
same to FSL.
16. Therefore, we are not in a position to relate the
FSL Report with the Cannabis allegedly seized from the
appellant.
17. The learned counsel on behalf of the prosecution
submits that the appellant is a habitual offender and other
cases are also pending against him.
18. This aspect cannot be taken into consideration by
us. In view of the fact that in criminal trial past bad conduct of
an accused is not relevant.
19. Considering such aspect of the matter, we are of
the view that the Trial Court passed an order of conviction and
sentence of the appellant without considering the essential
requirements contained in Section 42, 43 and 50 of the NDPS
Act. Therefore, the order of Conviction and sentence cannot
be sustained.
20. Accordingly, the instant appeal is allowed on
contest.
21. The accused/appellant be acquitted of the
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charges and released at once, if he is in custody.
22. The Office is directed to issue release order at
once. Fine amount, if any, which has been deposited by the
appellant be returned to him.
(Bibek Chaudhuri, J)
Chandra Shekhar Jha, J:- I agree
(Chandra Shekhar Jha, J)
veena/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.04.2026
Transmission Date 23.04.2026
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