Patna High Court
VIJAY MUKHIYAversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
Holding
The conviction was set aside because the prosecution failed to comply with the mandatory procedural safeguards under Section 52A of the NDPS Act, rendering the evidence of possession unreliable.
Summary
The appellant Vijay Mukhiya was convicted by the Sessions Court for possession of 15 packets of charas recovered from a half‑jacket found on the roof of his house, under Sections 20(b)(ii)(c), 22(c) and 23(c) of the NDPS Act. He appealed, contending that the narcotic material was not seized in his conscious possession and that the police failed to comply with mandatory procedural safeguards such as sealing, levelling, and sampling of the contraband in the presence of an independent witness and a magistrate as required by Section 52A of the NDPS Act. The High Court examined the prosecution’s evidence, noting contradictions about the location of recovery, the absence of a sealed inventory, and the lack of a contemporaneous sample taken before a magistrate. Relying on Supreme Court and High Court precedents, the Court held that the failure to comply with Section 52A and related procedural requirements created a fatal defect in the prosecution’s case. Consequently, the conviction and sentence were set aside, the appeal was allowed, and the appellant was ordered to be released. The seized narcotic substance was directed to be destroyed after the appeal period.
Issues considered
- Whether the seizure of narcotic substance complied with the mandatory procedural requirements of Section 52A of the NDPS Act, including sealing, levelling and sampling in the presence of a magistrate.
- Whether the contraband was found in the conscious possession of the accused.
- Whether the procedural lapses amount to a fatal defect warranting reversal of conviction.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 193, 313
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(c), 21, 22, 23, 42, 52A, 54, 55, 57
Subjects
- NDPS Act
- illegal possession
- seizure procedure
- Section 52A
- sample collection
- sealing and levelling
- procedural lapse
- appeal allowed
- narcotics
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.879 of 2019
Arising Out of PS. Case No.-60 Year-2018 Thana- MUFFASIL District- West Champaran
======================================================
VIJAY MUKHIYA S/o Late Shiv Pujan Mukhiya R/o village- Amawa
Majhar, P.S.- Bettiah (Mufasil), District-West Champaran
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Dhananjay Kumar, Advocate
Mr. Sanjeev Kumar Shrivastava, Advocate
For the State : Mr. Sujit Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 15-01-2026
The instant criminal appeal is directed against the
judgment of conviction dated 29.05.2019 and order of sentence
dated 31.05.2019 passed by the learned District and Sessions
Judge, Bettiah, West Champaran in Trial No.18 of 2018
convicting the appellant for committing offence under Sections
20(b)(ii)(c) of the N.D.P.S. Act and sentencing him to suffer
rigorous imprisonment for ten years and also to pay fine of
Rs.1,00,000/-, in default of payment of fine, further
imprisonment for a period of three years.
2. Prosecution case in brief, is that police personnel
attached to Bettiah Muffasil Police Station under the leadership
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
2/15
of one Ramadhar Ram, Sub-Inspector of Police, Bettiah
Muffasil police station conducted raid on 10.02.2018 at about
10:00 P.M. and while in raid S.I. Ramadhar Ram received an
information from S.H.O. Bettiah Muffasil police station
directing them to return to the police station for conducting
special raid at village Amawa Majhar.
3. On being directed as such, the police party under
the leadership of S.I. Ramadhar Ram reached village-Amawa
Majhar on 11.02.2018 at about 12:30 A.M. at night and on the
basis of previous information surrounded the house of Vijay
Mukhiya. The police officer called two local persons, namely,
Jagdish Mukhiya and Sunil Sahni to be the independent
witnesses of search and seizure.
4. The police party alongwith the independent
witnesses conducted search of the house of Vijay Mukhiya but
no incriminating material was recovered from him. However,
from the roof of the house of Vijay Mukhiya police recovered a
blue coloured half jacket with 15 packets of some materials kept
concealed in the said jacket. On bare examination, the packets
were smelling substance like Charas. Police recovered 15
packets of Charas weighing about 6 kg. and 300 grams
concealed inside the said jacket lying on the roof of the house of
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
3/15
Vijay Mukhiya and seized the said packets of Narcotic
substance under a seizure list in presence of the witnesses and
the appellant.
5. The appellant was arrested. A written report was
submitted by S.I. Ramadhar Ram to the S.H.O. of Bettiah
Muffasil Police Station on 11.02.2018 and on the basis of the
said written complaint a case under Section 21, 22 and 23 of the
N.D.P.S. Act was registered against the appellant. One S.I.
Laxman Prasad Singh was directed to take up the investigation
of the case. He took up investigation. During investigation, he
examined the witnesses, got the seized Narcotic substance
examined by the Regional Forensic Science Laboratory,
Muzaffarpur and obtained the report that the seized materials
were found to contain Charas {(a cannabis plant product whose
chip Psychoactive ingredient is Tetra Hydro Cannabinal
(THC)}. Accordingly, charge sheet was filed against the
appellant on 05.05.2018 under Section 21, 22 and 23 of the
N.D.P.S. Act before the learned Sessions Judge, Bettiah. The
learned Sessions Judge, Bettiah took cognizance of offence on
submission of charge sheet under Section 193 Cr.P.C. vide order
dated 10.05.2018.
6. The learned Sessions Judge framed charge against
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
4/15
the appellant under Sections 20(b)(ii)(c), 22(c) and 23(c) of the
N.D.P.S. Act. As the appellant pleaded not guilty and claimed to
be tried when the charge was read over and explained to him he
pleaded not guilty.
7. During Trial, the prosecution examined six
witnesses. Amongst them, PW-1 is A.S.I. Ram Kumar Ram,
P.W.-2-Ramadhar Ram was the Sub-Inspector of Police under
whose leadership the raid was conducted. PW-3 Brajesh Kumar
Pathak was a retired ASI of police, who also took part in the raid
in question. PW-4 Ravindra Nath Singh is a Constable of State
Armed Police. PW-5 Laxman Prasad Singh is the First
Investigating Officer and P.W.-6 Hari Bhushan Ram is the
second Investigating Officer, who collected F.S.L. report of the
seized materials and submitted charge sheet against the accused.
8. After examination of the witnesses on behalf of the
prosecution, the appellant was examined under Section 313 of
the Cr.P.C.. He pleaded his innocence. It was specifically stated
by him that he did not know as to whether any jacket containing
15 packets of Charas were thrown away and had fallen on his
roof, he had no knowledge about the said jacket or Narcotic
substance. The jacket also did not belong to him.
9. The appellant also examined Jagdish Mukhiya and
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
5/15
Bharat Ram, who were cited as independent witnesses to the
seizure. It is found from their evidence that one Chandeshwar
Mukhiya was the opponent of Vijay Mukhiya. Chandeshwar
used to carry on business of illicit liquor. Due to enmity
Chandeshwar falsely implicated Vijay in the instant case.
10. The learned Advocate on behalf of the appellant
has assailed the impugned order of conviction and sentence in
course of his argument. It is submitted by him, at the first
instance that all the witnesses were police personnel, who
conducted raid allegedly in the house of the appellant during
dead hours of night. Though, the prosecution claimed that the
raid was conducted in presence of two independent persons and
they were cited as witnesses on behalf of the prosecution, they
did not come forward to support the prosecution case. On the
other hand, they supported the appellant and examined as
defence witnesses. It is ascertained from their evidence that the
appellant is a man of noble character. He is not involved in any
short of activities of business of Narcotic drugs. The appellant
was falsely implicated by one Chandeshwar Ram, a neighbour
of the appellant, who used to run an illegal business of illicit
liquor.
11. It is further contended by the learned Advocate for
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
6/15
the appellant that the contraband articles were not found inside
the house or room of the appellant. It was found concealed in a
half jacket on the roof of the house of the appellant. The learned
Advocate for the appellant further submits that the roof is
accessible by anybody. Any person might throw away the jacket
concealing narcotic substance inside it on the roof of the
appellant. Therefore, the narcotic substance was not found and
seized from conscious physical possession of the appellant.
12. The learned Advocate for the appellant further
submits that the witnesses on behalf of the prosecution made
contradictory statements with regard to the place of recovery.
While PW-1 stated in course of his evidence that the jacket
containing Charas was recovered from the middle of the roof.
PW-2 stated that it was recovered from the northern side railing
of the roof of the house of the appellant. Again PW-3 stated that
the contraband was recovered from southern side of the roof.
13. Another important circumstance pointed out by
the learned Advocate on behalf of the appellant that there is no
evidence as to whether the alleged seized Narcotic substance
were sealed and levelled immediately after the seizure or not.
No evidence regarding sealing of contrabands and no lebel of
the same were produced during Trial of the case. The
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
7/15
prosecution also failed to produce Malkhana register to show
that the articles that were allegedly seized from the roof of the
appellant was actually sent to the F.S.L. or not.
14. The prosecution has also failed to obtained and
prepare sample seizure of the Narcotic substance. From the
F.S.L. report (Exhibit-4), it is found that one plastic Dibba
wrapped in a within cloth cover in sealed condition with two Tin
Dibbas were sent to the Regional Forensic Science Laboratory,
Muzaffarpur for examination. The sample seizure was not made
before the Magistrate. There was no label of the samples of
seized articles. Therefore, the prosecution failed to produce any
evidence with regard to seizure of sample of contraband articles
as per the requirement of the N.D.P.S. Act.
15. It is also submitted by the learned Advocate on
behalf of the appellant that the prosecution failed to discharge
its procedural safeguards mandated under Sections 42, 55, 52A
and 57 of the N.D.P.S. Act.
16. Learned Advocate on behalf of the State, on the
other hand has supported the impugned judgment passed by the
learned District and Sessions Judge against the appellant.
17. Having heard the learned Counsels for the parties
and on careful perusal of the entire materials on record, we are
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
8/15
in agreement with the learned Advocate on behalf of the
appellant that the seized narcotic substance was not sealed and
levelled in presence of independent witnesses immediately after
seizure.
18. As per the prosecution case, 15 packets of Charas
were recovered from the roof of the appellant in the night of
11.02.2018. Sample of Charas in two numbers of Tin Dibba in a
sealed Plastic Dibba was sent to F.S.L. on 11.04.2018 for
examination. There is absolutely no evidence that the seized
Narcotic substance was produced before the learned Chief
Judicial Magistrate in sealed condition. The learned Chief
Judicial Magistrate, Bettiah or any other Magistrate instructed to
open the seal and label and obtained certain amount of Narcotic
substance from each of 15 packets for sampling and certifying
the seized contraband in presence of the Judicial Magistrate.
19. There is absolutely no evidence about the place
where the Narcotic substance were kept after seizure for about
two and half months before the said articles were sent for
scientific examination. Therefore, in the instant case there is
clear violation of the provisions of Section 52A of the N.D.P.S.
Act, which severely affects the prosecution case. Mandatory
provision of Section 52A of the N.D.P.S. Act was not at all
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
9/15
followed by the prosecution.
20. The decision of a Coordinate Bench passed in
Criminal Appeal (DB) No.21 of 2023 on 25.07.2025 in the case
of Nek Mohammad @ Raj Mohammad Vs. The State of Bihar
may be relied on in this regard.
21. In Abdul @ Ziya and others Vs. The State of
Bihar, reported in 2015(4) PLJR 153, this Court found that
there is nothing on record to show that the seizing officer sealed
the seized articles at the place of seizure or any time even
thereafter, in presence of independent witnesses. There is no
evidence to show that any sample from the seized articles was
drawn on the spot of the recovered in presence of the accused.
Non-collection of sample at the initial stage of seizure was a
defect, which could not have been cured later on.
22. The Court relied on the decision of the Hon’ble
Supreme Court in Kuldip Singh Vs. State of Punjab, reported in
(2010) 10 SCC 219, to hold that non-collection of samples at the
initial stage of seizure was a defect, which could not have been
cured in the manner in which it was done. Subsequently, by
opening the bags by some unknown persons and taking the
samples in Tin Dibbas, there is obvious violation of Section 42
of the N.D.P.S. Act.
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
10/15
23. In Noor Aga Vs. State of Punjab, reported in
(2008)16 SCC 417, the Hon’ble Supreme Court had the
occasion to deal with the question as to whether or not non-
compliance of the guidelines issued with a Standing Instruction
No.01 of 1988 by the Narcotics Control Bureau, New Delhi
vitiates the entire trial or not. In paragraph No.89 to 91 the
Hon’ble Supreme Court held as hereunder :-
“89.Guidelines issued should not only be
substantially complied, but also in a case involving
penal proceedings, vis-à-vis a departmental
proceeding, rig-ours of such guidelines may be in-
sisted upon. Another important factor which must be
borne in mind is as to whether such directions have
been is-sued in terms of the provisions of the statute
or not. When directions are is-sued by an authority
having the legal sanction granted therefor, it becomes
obligatory on the part of the subordi-nate authorities
to comply therewith.
90. Recently, this Court in State of Kerala
& Ors. vs. Kurian Abraham (P) Ltd. & Anr. [(2008)3
SCC 582), following the earlier decision of this
Court in Union of India vs. Azadi Bachao Andolan
[(2004)10 SCC 1] 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 of 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.”
24. There is another aspect of the matter, the Forensic
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
11/15
Science Laboratory receives the samples of narcotic substance
in a sealed cover wrapped with cloth, but in its report the
impression of seal was not stated. There is absolutely no
evidence, when the samples were taken, how it was taken
whether it was taken before the learned Judicial Magistrate or
not ? Whether there was counter signature made by the learned
Judicial Magistrate or not, and if there was inordinate delay in
taking the samples from the seized narcotic substance.
25. In a very recent decision in the case of Bharat
Aambale Vs. State of Chhattisgarh, reported in 2025 SCC
OnLine SC 110, the Hon’ble Supreme Court was pleased to
discuss the scope and purport of Section 52A sub-section (4)
with a view to obviate confusion. Paragraph No.34 and 35 of the
aforesaid judgment are absolutely relevant and quoted below:-
“34. At this stage we may clarify the scope
and purport of Section 52A sub-section (4) with a
view to obviate any confusion. Sub-section (4) of
Section 52A provides that every court trying an
offence under the NDPS Act, shall treat the inventory,
photographs and samples of the seized substance that
have been certified by the magistrate as primary
evidence.
35. What this provision entails is that,
where the seized substance after being forwarded to
the officer empowered is inventoried, photographed
and thereafter samples are drawn therefrom as per the
procedure prescribed under the said provision and the
Rules/Standing Order(s), and the same is also duly
certified by a magistrate, then such certified
inventory, photographs and samples has to
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
12/15
mandatorily be treated as primary evidence. The use
of the word "shall" indicates that it would be
mandatory for the court to treat the same as primary
evidence if twin conditions are fulfilled being (i) that
the inventory, photographs and samples drawn are
certified by the magistrate AND (ii) that the court is
satisfied that the entire process was done in
consonance and substantial compliance with the
procedure prescribed under the provision and its
Rules/Standing Order(s).”
26. Finally the Hon’ble Supreme Court was pleased to
set-out the following conclusion in paragraph No.50 of the
judgment. Paragraph No.50 is reproduced below:-
“50. summarize our final conclusion as
under:-
(I) Although Section 52A 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 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 presence of a gazetted officer would not constitute
sufficient compliance of the mandate under Section
52A sub-section (2) of the NDPS Act.
(II) 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 Mohanlal
(supra), vet 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.
(III) Any inventory, photographs or samples
of seized substance prepare in substantial compliance
of the procedure prescribed under Section 52A of the
NDPS Act and the Rules/Standing Order(s) thereunder
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
13/15
would have to be mandatorily treated as primary
evidence as per Section 52A subsection (4) of the
NDPS Act, irrespective of whether the substance in
original is actually produced before the court or not.
(IV) The procedure prescribed by the
Standing Order(s)/Rules in terms of Section 52A 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.
(V) Mere non-compliance of the procedure
under Section 52A or the Standing Order(s)/Rules
thereunder will not be fatal to the trial unless there are
discrepancies in the 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.
(VI) 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 52A of the
NDPS Act.
(VII) 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 farts
and circumstances of each case.
(VIII) Where there has been lapse on the
part of the police in either following the procedure laid
down in Section 52A 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
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
14/15
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.
(IX) The initial burden will lie on the
accused to first lay the foundational facts to show that
there was non-compliance of Section 52A, 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.
(X) Once the foundational facts laid indicate
non-compliance of Section 52A 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 52A 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.”
27. Considering the absolute paucity of evidence
adduced by the prosecution and the judgments passed by the
Hon’ble Supreme Court as well as this Court, we are of the view
that when mere possession of contraband articles i.e. narcotic
substance is itself a serious offence leading to severe
punishment. The fact of possession, seizure of contraband
articles, sealing and levelling of the seized articles, taking
samples of the same etc. are to be strictly proved, failing which
the accused cannot be held guilty for the offence under the
N.D.P.S. Act.
28. In the instant appeal, we have no other alternative
but to set aside the impugned judgment of conviction dated
29.05.2019 and order of sentence dated 31.05.2019 passed by
Patna High Court CR. APP (DB) No.879 of 2019 dt.15-01-2026
15/15
the learned District and Sessions Judge, Bettiah, West
Champaran in Trial No.18 of 2018, because of the fact that the
learned Judge failed to appreciate the mandatory requirement to
be followed in search and seizure under the N.D.P.S. Act.
29. Accordingly, the instant criminal appeal is allowed
on contest. The appellant be released at once, if not wanted in
any other case.
30. Seized narcotic substance be destroyed after
expiry of the period of appeal before the Hon’ble Supreme
Court.
(Bibek Chaudhuri, J)
I agree.
( Dr. Anshuman, J)
mdrashid/-
AFR/NAFR NAFR
CAV DATE 18.12.2025
Uploading Date 15.01.2026
Transmission Date 15.01.2026
Checking your session…