Patna High Court
AYASA KHATUN @ AYESHA KHATOONversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
Holding
The appellate court held that the prosecution failed to demonstrate substantial compliance with the procedural safeguards of the NDPS Act, rendering the conviction unsustainable and entitling the appellant to acquittal.
Summary
Ayasa Khatun was arrested in July 2016 after police seized six kilograms of charas from a bag she was carrying. The trial court convicted her under Section 20(b)(ii)(C) of the NDPS Act and sentenced her to twelve years' imprisonment. On appeal, the High Court examined whether the seizure, sealing, weighing, inventory and sampling of the contraband complied with the procedural safeguards mandated by Sections 52 and 52A of the NDPS Act. The Court found material discrepancies: contradictory witness statements, lack of independent seizure‑list witnesses, absence of proper weighing, no magistrate‑supervised sampling, and no chain‑of‑custody documentation. Relying on Supreme Court precedents, the Court held that such non‑compliance undermined the prosecution's case and created reasonable doubt. Consequently, the conviction was set aside and the appellant was acquitted.
Issues considered
- Did the seizure, sealing, weighing, inventory and sampling of the charas comply with the procedural requirements of Sections 52 and 52A of the NDPS Act?
- Was the prosecution able to prove beyond reasonable doubt that the appellant had conscious possession of the seized contraband?
- Should the trial court's conviction be upheld despite the identified procedural lapses?
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act — s. 20(b)(ii)(C), 22, 23, 24, 27(A), 29, 50, 52, 52A, 54
Subjects
- NDPS Act
- seizure procedure
- sampling compliance
- chain of custody
- procedural irregularities
- acquittal
- drug trafficking
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.626 of 2024
Arising Out of PS. Case No.-397 Year-2016 Thana- BETTIAH CITY District- West
Champaran
======================================================
Ayasa Khatun @ Ayesha Khatoon Wife Of Najir Miya Resident Of Village -
Jeetpur, Police Station - Semra, District - Parsa (Nepal)
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Rajesh Kumar, Advocate
Mr. Prashant Kumar, Advocate
Mr. Manaur Alam, Advocate
For the State : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 12-01-2026
This appeal is arising out of the judgment of conviction
dated 07.08.2019 (hereinafter referred to as the ‘impugned
judgment’) and the order of sentence dated 16.08.2019 (hereinafter
referred to as the ‘impugned order’) passed by learned District and
Sessions Judge-cum-Special Judge, NDPS Act, West Champaran,
Bettiah (hereinafter referred to as the ‘learned Trial Court’) in
NDPS Case No. 20 of 2016, Sessions Trial No. 25 of 2016 arising
out of Bettiah Town P.S. Case No. 397 of 2016.
2. By the impugned judgment, the learned trial court has
been pleased to convict the appellant for the offences punishable
under Sections 20(b)(ii)(C) of the Narcotic Drugs and
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Psychotropic Substances Act (in short ‘NDPS Act’) and ordered to
undergo rigorous imprisonment for twelve years and to pay a fine
of Rs.1,00,000/- under Section 20(b)(ii)(C) of the NDPS Act. In
case of default of payment of fine, she shall have to further
undergo imprisonment for two years.
Prosecution Case
3. The prosecution case is based on the written
application (Exhibit ‘2’) of Rajesh Kumar (PW-4), Officer-
Incharge at Nagar Thana, Bettiah. On 29.07.2016 at 01:00 PM, the
informant along with other police personnels, namely, Kiran
Shankar, Rajiv Kumar, Chandan Kumar and Chaya Rai left police
station for raid. At about 02:00 PM, information was received that
a woman was going to pass Station Chowk carrying charas.
Thereafter, the informant gave this information to senior officials
and proceeded to Station Chowk. When the police team reached
there, they saw that a woman who was carrying a bag in her hand
tried to hide herself. The female officer Chaya Rai apprehended
the woman. Seeing the action of police, locals assembled there and
from amongst them, (1) Lalan Prasad and (2) Alar Miyan were
made witnesses. Officer Chaya Rai searched the woman and found
six packets from the bag which she was carrying. She disclosed
her name as Ayasa Khatun and told that the recovered packets
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contain six kg of charas. On demand of papers relating to charas,
she told that she used to purchase charas from Nepal and via train
she was going to Delhi to sell the same. Thereafter, in presence of
the above-named witnesses, seizure list was prepared and charas
was seized. On the seizure list, above-named witnesses signed on
their own will and one copy of the seizure list was given to Ayasa
Khatun on which she put her signature and she was arrested.
4. On the basis of this written application, Bettiah Town
P.S. Case No. 397 of 2016 dated 29.07.2016 was registered under
Sections 20/22/23/24/27(A)/29 of the NDPS Act against Ayasa
Khatun.
5. After investigation, Police submitted chargesheet
bearing No. 518 of 2016 dated 31.08.2016 against the appellant
under Sections 20, 22, 23, 24, 27(A) and 29 of the NDPS Act. On
the basis of the chargesheet, learned trial court vide order dated
05.09.2016 took cognizance of the offences punishable under
above-mentioned sections against the appellant.
6. Charges were read over and explained to the appellant
in Hindi to which she pleaded not guilty and claimed to be tried.
Accordingly, vide order dated 04.11.2016, charges were framed
against the appellant under Sections 20(b)(ii)(c), 22(c) and 23(c) of
the NDPS Act.
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7. In course of trial, the prosecution examined as many
as six witnesses and exhibited several documents to prove it’s
case. The list of the prosecution witnesses and the list of exhibits
are being shown hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Rajeev Kumar Rajak
PW-2 Kiran Shankar
PW-3 Chhaya Rai
PW-4 Rajesh Kumar
PW-5 Md. Abid Hasan
PW-6 Chandan Kumar
List of Documents exhibited
Exhibit-1 Seizure list
Exhibit-2 Written petition
Exhibit-2/1 Endorsement in written petition
Exhibit-3 Formal FIR
Exhibit-4 FSL Report
8. Thereafter, the statement of the appellant was
recorded under Section 313 of the CrPC in which she replied in
negative. No oral or documentary evidence has been adduced on
behalf of the Defence.
Findings of the learned trial court
9. 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
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point of search, seizure and sealing of the seized charas and the
defence could not be able to contradict their evidences. Learned
trial court found from the FSL report (Exhibit '4') that the
recovered substance from the possession of the appellant was
charas. The learned trial court opined that recovery was made from
the jhola (bag) of the accused Ayasa Khatoon which was in her
hand at the time of raid and not from her body. According to the
provision of Section 50 of the NDPS Act, the search of the accused
before the Magistrate is not required.
10. After having gone through the materials available on
the record, learned trial court found that the prosecution has
followed the provisions of the NDPS Act and no illegality was
found in the process of search and seizure of six kilogram of
illegal charas from the jhola (bag) of the appellant Ayasa Khatoon.
Learned trial court found that the recovery of the said illegal
charas was in the knowledge of the appellant for which she has to
explain but she failed.
11. Accordingly, the learned trial court held the appellant
Ayasa Khatoon guilty and sentenced her accordingly.
Submissions on behalf of the Appellant
12. Learned counsel for the appellant has submitted that the
prosecution case suffers from material lacunae and gross irregularities
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in conducting the investigation as the essential and mandated provisions
of NDPS Act have been violated.
13. Learned counsel for the appellant submitted that no
independent witness along with seizure list witnesses were examined
by the prosecution, as the specific case of the prosecution is that when
they started the search of the appellant a crowd was gathered. With
respect to the seizure list and its preparation, it is submitted that the
Chaya Rai (P.W. 3), who conducted the search of the appellant, stated in
her deposition that the seizure list was prepared at the police station
whereas other witnesses have stated that it was prepared at the place of
occurrence itself which is contrary to the statements of other witnesses.
It is submitted that this contradiction renders the seizure proceeding
doubtful and affects the credibility of the seizure.
14. It is further submitted that the alleged seized material
was neither properly weighed nor properly seized in accordance with
provisions mandated under NDPS Act. Prosecution disclosure about
the weight 6 kgs of seized article is also doubtful as it was mechanically
recorded in the report, the Kirana Shop owner who weighed the seized
charas is neither named nor has been examined to substantiate the
weighing procedure which had taken place.
15. Learned counsel has also highlighted serious lapses
regarding sampling, as there is no mention that when or how the
samples were drawn and in whose presence it was done. It is further
submitted that the sampling was not conducted in presence of a
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Magistrate which is in violation of the provisions contained under
Section 52 of the NDPS Act.
16. Learned counsel for the appellant has further submitted
that there is no documentary evidence to establish the chain of custody
of seized article and sampling before sending it for forensic
examination, though it has been stated that the seized substance was
kept in malkhana. No document has been exhibited to substantiate the
same. Even the seized material was not produced before the learned
trial court. It is, therefore, argued that there has been a clear violation of
Section 52 of the NDPS Act, which vitiates the prosecution case.
Submission on behalf of the State
17. On the other hand, learned Additional Public
Prosecutor for the State has defended the impugned judgment and
order. It is submitted that the prosecution has fully established that
the recovered article from the appellant is Charas as has been
proved from the FSL Report (Ext. 4). It is further submitted that
the prosecution witnesses have deposed that the jhola (bag) which
was recovered from the appellant contains Charas and the defence
failed to bring any contradiction from the evidences of the
prosecution witnesses.
18. Learned Additional Public Prosecutor has submitted
that the prosecution has been able to prove that the appellant was
carrying charas at the time of search by bringing cogent and
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material evidences in terms of the NDPS Act and the judgments of
the Hon’ble Supreme Court, hence, no fault may be found in the
impugned judgment and order.
Consideration
19. Having heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State as also on
perusal of the trial court records, we are of the considered opinion
that the impugned judgment and order of the learned trial court
suffers from material discrepancies and are liable to be set aside.
20. We have noticed from the records that the informant
of this case is Rajesh Kumar (PW-4) who was posted as Police
Sub-Inspector in Nagar Thana, Bettiah on 29.07.2016. In his
written report submitted in the police station, he has stated that he
left the police station on 29.07.2016 at about 1 o’clock during day
time together with Sub-Inspector of Police Kiran Shankar, the
present Officer-in-Charge of Sirsia O.P. Chanpatia, Police Sub-
Inspector Rajeev Kumar Rajak, Sepoy Chandan Kumar and lady
Homeguard No. 33 namely Chhaya Rai to conduct a raid. At about
2:00 PM, he got a secret information that a lady is likely to arrive
near Station Chowk carrying charas. The informant claimed that
he sent this information to his senior officer and proceeded
towards Station Chowk. When he reached Station Chowk, he
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found that one lady who was holding a bag in her hand was trying
to conceal herself on seeing the police, then the lady Homeguard
Chhaya Rai caught hold of her. On seeing the police action, the
persons from the nearby had assembled and from amongst them he
took (1) Lalan Prasad Gupta aged 42 years, Son of Late Ramji
Prasad of Village-Purani Gudri, Ward No. 10 and (2) Akhtar
Miyan aged 45 years, Son of Late Latifur Rahman, Resident of
Ganj No.2, Nazni Chowk, P.S. Bettiah Nagar, District-East
Champaran. The informant has further stated that on search of the
said lady by the lady Homeguard Chhaya Rai, from the bag which
was in the hand of the accused, six packets of yellow colour were
seized. On asking, she disclosed her name as Ayasa Khatun, aged
58 years wife of Nazir, Resident of Village-Jeetpur, P.S. Semra,
Nepal. She disclosed that in the seized packets there were six kg of
charas. The informant Rajesh Kumar (PW-4) claimed that he
seized the packets in presence of the witnesses and prepared a
seizure list. He had also got signature thereon from the witnesses
and handed over one copy of the seizure list to the accused on
which she put her signature.
21. We have noticed from the written information
furnished by Rajesh Kumar (PW-4) that he claims to have taken
two seizure list witnesses from amongst the persons who had
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assembled at the place of occurrence but in complete contradiction
to what is stated in the written statement, in course of trial, he has
stated in paragraph ‘3’ of his cross-examination that at the time of
seizure of charas no Magistrate was present there. In paragraph
‘12’ he has stated that at the place of occurrence itself he had taken
weight of the seized article but he cannot say the name of the shop
owner who had done the weight. In course of trial, he has stated
that he had sealed the seized charas at the place of occurrence but
in paragraph ‘12’ he has stated that in his application he had not
mentioned the fact regarding the sealing. According to this
witness, the place of occurrence is at a distance of 200-300 metre
south from the Station. The bag of Ayasa Khatun was in open
condition, he had checked the same and this witness has further
stated that it is he who had opened the packets when all the police
personnel were standing there and they had seen it. It is evident
from the deposition of PW-4 that even as he claims at this stage
that the weighing of the seized article had taken place and he had
sealed it, this statement has come at a much belated stage and the
same does not find corroboration from the evidence of the police
personnel who were member of the raiding party. In this
connection, it would appear from the deposition of Rajeev Kumar
Rajak (PW-1) that there was no weighing machine at the place
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where seizure had taken place. PW-1 has clearly stated that it was
not weighed by the weighing machine.
22. Another witness Kiran Shankar (PW-2) has also
stated in his examination-in-chief that the seized charas was not
weighed. PW-2 has also stated that there was no Magistrate
present at that time. This witness expressed his unawareness as to
whether the shop owner from whom weighing machine was taken
to weigh the charas was made a seizure list witness or not. He has
later stated that Rajesh Kumar weighed the charas. This witness
has though claimed that the seized articles and the seizure list were
produced in the court, we have found from the trial court’s order
that the copy of the FIR drawn in this case was received in the
court on 30.07.2016 and later on the accused was produced.
Seizure list has been brought on record as Exhibit ‘1’ on which the
two seizure list witnesses have put their signature but it is an
admitted position that none of the seizure list witness has been
examined in course of trial. Prosecution has not offered any
explanation for their absence. In fact, the presence of the seizure
list witnesses on the spot becomes highly doubtful on going
through the evidence of the I.O. (PW-5). In paragraph ‘15’ of his
deposition, PW-5 has stated that he had recorded the statement of
the seizure list witnesses on 29.07.2016 itself at the place of
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occurrence, but he has clearly stated that they were called over
telephone, he had noted their number in the diary but he did not
remember it. He has stated that the witnesses had come on
motorcycle and he had recorded their statement at 7:00 PM.
23. On going through the evidence of the I.O. (PW-5),
the prosecution story that the seizure of charas was done on
29.07.2016 at 2:40 PM in presence of two independent witnesses
becomes highly doubtful. In this case, the I.O. Md. Abid Hasan,
has stated in his examination-in-chief that he had received the
charge of investigation of this case on 29.07.2016 and in course of
investigation, he had visited the place of occurrence but in
paragraph ‘10’ of his deposition, he has stated that he had not
recorded statement of any independent witness. When he went to
the place of occurrence, nobody from the neighborhood assembled
there, only police officers were present. In paragraph ‘11’ of his
deposition, he has stated that the material exhibit was produced
before him in sealed condition and the informant Rajesh Kumar
(PW-4) had told him that there were charas in the bag. From the
deposition of PW-5, it is evident that he was not present at the time
of seizure of the charas. PW-4, who is the informant of the case,
has not taken name of PW-5 as one of the police personnel present
with him in the raiding party. The prosecution case, as established
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from the evidence on the record, is that the informant had brought
the seized charas and the accused to the police station, there is no
evidence of sealing of the seized charas at the place of occurrence.
It is not the case of the prosecution that the seizing officer (PW-4)
had prepared any sample from the seized charas at the place of
occurrence in presence of the accused. When we come to the
evidence of Chhaya Rai (PW-3), who is one of the members of the
raiding party and had conducted the search of the accused, it
would appear that in paragraph ‘3’ of her deposition, she has stated
that the seizure document was prepared at the police station.
24. We have perused the trial court’s orders. We find that
in the order dated 30.07.2016, the seizure list and the seized
charas were produced along with accused, but there is no order of
the trial court to the I.O. to keep the seized charas in the
Malkhana of the police station. It is not known as to where the
seized charas were kept after seizure. The Malkhana register of
the police station has not been produced and the Incharge of the
Malkhana has not been brought as a witness. What appears from
the records is that after exactly one month, i.e. 29.08.2016, the I.O.
filed an application in the court with a request to allow sending of
the seized exhibit to the Forensic Science Laboratory (FSL), Bihar,
Patna. On 29.08.2016, Shri Nagesh Pratap Singh, Judicial
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Magistrate, First Class, Bettiah, was deputed to seal the seized
exhibit in his presence and submit a report in this regard. What
happened thereafter is not known. The prosecution has not brought
in evidence the certification of inventory and sampling, if any,
done in presence of the Magistrate. The learned Magistrate, Shri
Nagesh Pratap Singh, has not been examined and it is not known
whether he had submitted any report.
25. This Court further finds that even as the court
permitted sending of the seized exhibit to the Forensic Science
Laboratory, Bihar, Patna on 29.08.2016, within six days thereafter
i.e. on 05.09.2016, the I.O. submitted a charge-sheet against the
accused alleging that there were sufficient materials to proceed
against the accused for the offences punishable under Sections
20/22/23/24/27(A)/29 of the NDPS Act. It is evident that the I.O.
(PW-5) was in haste in the matter of filing of the charge-sheet and
he did not await receipt of the FSL report. The FSL report was
received only at a much belated stage, i.e. on 25.02.2019, and this
has been marked exhibit on the request of the prosecution. This
was the day when prosecution evidence was closed. A perusal of
the FSL report would show that the seized exhibit was sent to the
FSL vide Memo No. 2366 dated 30.08.2016 through special
messenger S.I. Abid Hasan but it was received in the Office of the
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FSL on 12.09.2016. It is, thus, not known that from 30.08.2016 till
the date of handing over of the sample to the FSL, where were
these samples lying. No photograph of the seized article has been
taken and as stated above, there is nothing on the record to show
that sampling was done in presence of the Magistrate.
26. This Court finds that in this case the prosecution has
not duly proved the seizure in presence of independent witnesses
even though the place of seizure is a public place nearby the
station and further, the prosecution has miserably failed to prove
that the seized articles were sealed and samples were also prepared
in accordance with law. Seizing and sampling both are highly
doubtful and not duly proved. There is nothing to show
certification of the inventory and compliance with the mandate of
sub-section (3) of Section 52A of the NDPS Act.
27. At this stage, we quote the relevant paragraph of the
judgment of the Hon’ble Supreme Court in the case of Bharat
Aambale vs. State of Maharashtra reported in (2025) 8 SCC
452 hereunder for a ready reference:-
“56. We summarise our final conclusion as under:
"56.1. Although Section 52-A is primarily for
the disposal and destruction of seized
contraband in a safe manner yet it extends
beyond the immediate context of drug disposal,
as it serves a broader purpose of also
introducing procedural safeguards in the
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treatment of narcotics substance after seizure
inasmuch as it provides for the preparation of
inventories, taking of photographs of the seized
substances and drawing samples therefrom in
the presence and with the certification of a
Magistrate. Mere drawing of samples in the
presence of a gazetted officer would not
constitute sufficient compliance of the mandate
under Section 52-A sub-section (2) of the NDPS
Act.
56.2. Although, there is no mandate that the
drawing of samples from the seized substance
must take place at the time of seizure as held in
Mohanlal2, yet we are of the opinion that the
process of inventorying, photographing and
drawing samples of the seized substance shall
as far as possible, take place in the presence of
the accused, though the same may not be done
at the very spot of seizure.
56.3. Any inventory, photographs or samples of
seized substance prepared in substantial
compliance of the procedure prescribed under
Section 52-A of the NDPS Act and the
Rules/Standing Order(s) thereunder would have
to be mandatorily treated as primary evidence
as per Section 52-A sub-section (4) of the
NDPS Act, irrespective of whether the
substance in original is actually produced
before the court or not.
56.4. The procedure prescribed by the Standing
Order(s)/Rules in terms of Section 52-A of the
NDPS Act is only intended to guide the officers
and to see that a fair procedure is adopted by
the officer in charge of the investigation, and as
such what is required is substantial compliance
of the procedure laid therein.
56.5. Mere non-compliance of the procedure
under Section 52-A or the Standing
Order(s)/Rules thereunder will not be fatal to
the trial unless there are discrepancies in the
2. Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864
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physical evidence rendering the prosecution's
case doubtful, which may not have been there
had such compliance been done. Courts should
take a holistic and cumulative view of the
discrepancies that may exist in the evidence
adduced by the prosecution and appreciate the
same more carefully keeping in mind the
procedural lapses.
56.6. If the other material on record adduced by
the prosecution, oral or documentary inspires
confidence and satisfies the court as regards the
recovery as well as conscious possession of the
contraband from the accused persons, then even
in such cases, the courts can without hesitation
proceed to hold the accused guilty
notwithstanding any procedural defect in terms of
Section 52-A of the NDPS Act.
56.7. Non-compliance or delayed compliance of
the said provision or rules thereunder may lead
the court to drawing an adverse inference against
the prosecution, however no hard-and-fast rule
can be laid down as to when such inference may
be drawn, and it would all depend on the peculiar
facts and circumstances of each case.
56.8. Where there has been lapse on the part of
the police in either following the procedure laid
down in Section 52-A of the NDPS Act or the
prosecution in proving the same, it will not be
appropriate for the court to resort to the statutory
presumption of commission of an offence from
the possession of illicit material under Section 54
of the NDPS Act, unless the court is otherwise
satisfied as regards the seizure or recovery of
such material from the accused persons from the
other material on record.
56.9. The initial burden will lie on the accused to
first lay the foundational facts to show that there
was non-compliance of Section 52-A, either by
leading evidence of its own or by relying upon the
evidence of the prosecution, and the standard
required would only be preponderance of
probabilities.
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56.10. Once the foundational facts laid indicate
non-compliance of Section 52-A of the NDPS
Act, the onus would thereafter be on the
prosecution to prove by cogent evidence that
either: (i) there was substantial compliance with
the mandate of Section 52-A of the NDPS Act,
OR (ii) satisfy the court that such non-
compliance does not affect its case against the
accused, and the standard of proof required
would be beyond a reasonable doubt.””
28. Since the primary documents which would have
laid down the foundation of the case are missing and the facts
are not duly proved, we are of the considered opinion that the
impugned judgment and order of the learned trial court are
liable to be set aside and the appellant is required to be
acquitted of the charges giving her benefit of doubt.
29. In result, this appeal is allowed. The impugned
judgment of conviction dated 07.08.2019 and the order of sentence
dated 16.08.2019 passed by learned District and Sessions Judge-
cum-Special Judge, NDPS Act, West Champaran, Bettiah in NDPS
Case No. 20 of 2016, Sessions Trial No. 25 of 2016 arising out of
Bettiah Town P.S. Case No. 397 of 2016 are set aside. The
appellant is acquitted of the charges under Section 20(b)(ii)(C) of
the NDPS Act giving her benefit of doubt. She shall be released
forthwith if not wanted in any other case.
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30. 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)
(Ritesh Kumar, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 17.01.2026
Transmission Date 17.01.2026
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