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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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