Patna High Court
MD. MANOWAR and ORS.versusTHE STATE OF BIHAR
- Decided
- Disposal
- DISMISSED
- Bench
- PURNENDU SINGH
Holding
The High Court upheld the conviction of the appellants under Section 22 of the NDPS Act and dismissed the appeal.
Summary
The appellants Md. Manowar, Md. Arif and Md. Zafar were convicted by the Sessions Judge for offences under Sections 328/34, 379/34 and 411/34 of the IPC and for unlawful possession of a psychotropic substance under the NDPS Act. They appealed, contending that the prosecution evidence was contradictory, that the confessional statements and the seized tablets were inadmissible, and that the search violated the safeguards of Sections 50 and 52 of the NDPS Act. The High Court examined the testimony of ten prosecution witnesses, the seizure lists, and the medical report, and considered the Supreme Court’s pronouncements on illegal searches and the statutory presumption under Section 54. It held that the appellants were in unlawful possession of the contraband, that the procedural requirements were substantially complied with, and that the conviction under Section 22 of the NDPS Act was sustainable. Consequently, the appeal was dismissed and the appellants were sentenced to ten years’ rigorous imprisonment and a fine of Rs.1,00,000 each, with credit for time already served.
Issues considered
- The prosecution evidence was sufficient to prove the offences under Sections 328/34, 379/34 and 411/34 of the IPC.
- Whether the seizure of the psychotropic substance complied with the procedural safeguards of Sections 50 and 52 of the NDPS Act.
- Whether a presumption of possession under Section 54 of the NDPS Act can be raised when the search is alleged to be illegal.
- Whether the confessional statements and the victim’s testimony are admissible and reliable.
Legislation cited
- Code of Criminal Procedure — s. 100, 313, 374(2), 389(1)
- Indian Penal Code — s. 328/34, 379/34, 411/34
- Narcotic Drugs and Psychotropic Substances Act — s. 20, 22, 42, 43, 44, 45, 46, 47, 48, 49, 50, 50A, 51, 52, 52A, 54
Subjects
- NDPS Act
- illegal search
- Section 50
- Section 54
- presumption of possession
- rigorous imprisonment
- evidence evaluation
- IPC offences
- procedural safeguards
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.178 of 2011
======================================================
1. Md. Manowar, Son of Md. Nazir, resident of village – Jahanpur, P.S.-
Palasi, District – Araria.
2. Md. Arif, son of Sah Nazir @ Majir, resident of village – Jehanpur
Dumariya, P.S.-Palasi, District – Araria.
3. Md. Zafar @ Md. Jafar, son of Md. Shahnul Haque, resident of village –
Chakai, P.S.-Zoki, District – Araria.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Atul Dayal, Amicus Curiae.
For the Respondent/s : Mr. Abhay Kumr, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 16-03-2026
Heard Mr. Atul Dayal, learned Amicus Curiae
appearing on behalf of the appellants and Mr. Abhay Kumar,
learned APP for the State.
2. The present appeal has been filed under Section
374 (2) and 389(1) of the Code of Criminal Procedure
challenging the judgment of conviction dated 15.12.2010 and
order of sentence dated 21.12.2010 passed by the Learned
Sessions Judge, Katihar (Special Judge ) in G.R. Case No.
82/2009, whereby and whereunder the appellants have been
convicted for the offence punishable under Sections 328/34,
379/34 and 411/34 of the Indian Penal Code and have been
sentenced to undergo Rigorous Imprisonment for 10 years for
the offence under Section 328/34 of the Indian penal code,
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rigorous imprisonment for 3 years under section 379/34 of the
Indian Penal code and Rigorous Imprisonment for 3 years under
Section 411/34 of the Indian Penal code. The appellants were
further directed to pay fine of Rs.5000/- each for the offence
under Section 328/34 I.P.C., Rs. 5000/- each for the offence
under section 379/34 I.P.C. and Rs. 5000/- each under Section
411/34 I.P.C. and as such all the three appellants are liable to
pay a fine of Rs. 15,000/- and if the fine is not paid, the
appellants will undergo Rigorous Imprisonment for one year. All
the sentences were ordered to run concurrently. The appellants
were also directed to pay compensation of Rs. 25000/- to the
victim. The appellants were acquitted from the charges under
Section 22 of Narcotic Drugs and Psychotropic Substance Act
(NDPS).
3. Being aggrieved and dissatisfied with the
aforesaid judgment of conviction and order of sentence, the
appellants have preferred the present appeal before this Court.
The appellants have assailed the impugned judgment primarily
on the ground that the learned trial court failed to appreciate the
evidence available on record in its proper perspective and has
wrongly recorded the conviction of the appellants despite the
existence of serious contradictions and deficiencies in the
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prosecution case.
4. The prosecution case arose out of Purnea (Katihar)
Rail P.S. Case No. 60 of 2009 instituted on the basis of the fard-
beyan of Md. Kalim (P.W.3) recorded by Sub-Inspector Anil
Kumar (P.W.8) at Purnea Junction on 24.07.2009. The informant
stated that he had travelled from Delhi to Katihar by Saptakranti
Express and reached Purnea Junction at about 4:00 A.M., from
where he intended to proceed to Banmankhi. While waiting for
the train, three to four persons present at the platform told him
that the train to Banmankhi would arrive at about 7:00 A.M. and
persuaded him to sit with them on a chadar spread on the
platform. One of them first offered him biscuits which he
declined, and thereafter another person brought two cups of tea
and insisted to drink it stating that they were also
Mohammadans. After consuming the tea, the informant began to
feel giddy within 15–20 minutes and went towards a phone
booth to make a call. In the meantime, three of the persons
followed him and shortly thereafter one of them snatched his
bag and Rs. 3,000/- from his pocket and attempted to flee
towards the northern side of the platform. On his raising alarm,
the persons present on the platform chased and apprehended the
culprits and brought them along with the bags to the R.P.F. post.
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The informant thereafter lost his senses and was taken to the
hospital for treatment. After his discharge in the evening, he
gave the fardbeyan at the police station and identified the
apprehended persons namely Arif, Md. Jafar and Md. Manowar,
stating that they had jointly administered the intoxicating
substance in tea and attempted to steal his belongings, while
another associate namely Md. Jamil managed to escape.
5. On the basis of the statement of the informant, the
F.I.R being Katihar (Purnea P.F.) Rail P.S. Case No. 60/2009
was registered for the offences under sections 328, 379 and
411/34 of the Indian Penal Code and Section 22 of the N.D.P.S.
Act. After institution of the FIR, the police proceeded with the
investigation and after completion of the investigation, charge-
sheet was submitted. Thereafter, the trial court took cognizance
against the appellants and the case was committed to the Court
of Sessions for trial.
ARGUMENT OF THE PARTIES
6. Learned Amicus Curiae submitted that there is no
involvement of the appellants in the alleged occurrence and they
have falsely been implicated in the case. The confessional
statement of the accused before the police cannot be treated as
an evidence in the eye of law. The R.P.F. personnel who brought
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the victim to the hospital has not been examined as an witness
and his non-examination creates serious doubt about the
genuinity of the case. He further submitted that there is neither
any evidence that any poison was administered to the victim nor
any tablet recovered could be scientifically said to have
contained poison. He further submitted that there is no evidence
that the appellants mixed something with tea except the oral
evidence of the prosecutrix. No T.I. parade was conducted nor
the seized bags / items were produced before the court.
According to the doctor, no psychological chemical examination
of the victim was done. In such circumstances, it was argued
that the prosecution has failed to prove the charges beyond all
reasonable doubts and the trial court has miserably failed to
appreciate the evidence, leading to failure of justice and
therefore the conviction of the appellant under Sections 328/34,
379/34 and 411/34 of the Indian Penal Code is liable to be set
aside.
ARGUMENT ON BEHALF OF THE STATE
7. Per contra, learned APP appearing for the State
while opposing the appeal submitted that the learned District
court, after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
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rightly convicted the appellants for said offences as the offences
alleged against the appellants appears to be serious in nature and
also constitutes cognizable offence.
ANALYSIS AND CONCLUSION
8. Heard the parties.
9. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
10. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
Judgment of conviction dated 15.12.2010 and order of sentence
dated 21.12.2010 for the offences under Sections 328/34, 379/34
and 411/34 of the Indian Penal Code.
11. During the trial, the prosecution has examined
altogether ten witnesses, namely:
(i) (P.W.-1)- Salyad Ahsan Ali
(ii) (P.W.-2)- Niraj Prasad Dhusiya
(iii) (P.W.-3)- Md. Kalim (Informant)
(iv) (P.W.-4) - Najir Parwej
(v) (P.W.-5)- Dr. Bishnu Prasad Agrawal (M.O.)
(vi) (P.W.-6)- Rajiv Ranjan Kumar
vii) (P.W.-7).- Shiv Kumar Marandi
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viii) (P.W.-8)- Anil Kumar
ix) (P.W.9)- Md. Mustakim
x) (P.W. 10)- Md. Samsul
12. The prosecution has also relied upon following
documents exhibited during the course of trial:-
(i) Signature of Salyad Ahsan Ali on seizure list
(Exhibit-1),
(ii) Signature of informant Md. Kalim on
fardbeyan (Exhibit-2),
(iii) Letter addressed to G.R.P., Purnea (Exhibit-3),
(iv) Discharge Slip (Exhibit – 4)
(v) Outdoor Ticket (Exhibit – 5)
(vi) Fardbeyan of informant Md. Kalim (Exhibit – 6)
(vii) Three Seizure lists (Exhibit – 7, 8 & 9).
(viii) FSL Report (Exhibit-10)
13. From the perusal of the records, the statement
of prosecution witnesses are as follows:
(i) P.W.1 – Salyad Ahsan Ali: This witness, an R.P.F.
personnel, deposed that while he was on duty at the platform
along with other R.P.F. staff, he saw a person staggering and
crying that someone had fled away with his belongings. He
stated that a person running towards the north was chased and
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apprehended and brought to the R.P.F. office. Upon search,
some articles including medicine tablets were recovered and the
apprehended person allegedly disclosed that such tablets were
administered to passengers to sedate them and thereafter their
luggage was stolen. He further stated that three persons were
caught while one managed to escape and he identified accused
Md. Jafar in court. He proved his signatures on the seizure lists
(Ext.1, 1/1 and 1/2). In cross-examination he admitted that he
was not a gazetted officer and that the seizure list was prepared
by the Officer-in-Charge of G.R.P.
(ii) P.W.2 – Niraj Prasad Dhusiya: This witness, also
an R.P.F. personnel, supported the prosecution case and stated
that he along with other R.P.F. staff chased and apprehended
three persons on the platform. He identified the accused Jafar,
Arif and Manowar in court. In cross-examination he admitted
that he was not present at the time when the bags were opened.
(iii) P.W.3 – Md. Kalim (Informant/Victim): This
witness fully supported the prosecution case and described the
occurrence in detail. He stated that after consuming tea offered
to him, he started feeling giddy and attempted to make a phone
call to his home. He further stated that he was not completely
sedated at that time but later felt unconscious on the platform.
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He identified the accused persons in court and proved his
signature on the fard-beyan (Ext.2). In cross-examination, no
material contradiction could be elicited from his statement.
(iv) P.W.4 – Najir Parwej: This witness, an R.P.F.
personnel, stated that he heard a person crying that his bag had
been snatched and that the culprit was fleeing away. He along
with other R.P.F. personnel chased and apprehended three
persons and informed the G.R.P. officials. He further stated that
the victim Kalim was in a precarious condition and was taken to
hospital. He identified the accused persons in court. In cross-
examination he stated that the seizure was not made in his
presence.
(v) P.W.5 – Dr. Bishnu Prasad Agrawal: This witness,
the Medical Officer at Sadar Hospital, Purnea, stated that on
24.07.2009 the victim Kalim was brought to the hospital in an
intoxicated condition and was admitted for treatment. He proved
the medical documents including the letter to G.R.P. (Ext.3),
discharge slip (Ext.4) and the outdoor ticket (Exhibit-5). He
deposed that the patient was treated with saline and injections.
In cross-examination he admitted that no pathological test was
conducted to ascertain poisoning.
(vi) P.W.6 – Rajiv Ranjan Kumar: This witness, an
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R.P.F. official, stated that he received information that three
persons involved in a case of “Jaharkhuri” had been
apprehended by R.P.F. constables. Upon reaching the R.P.F.
post, he found the accused persons along with five bags and the
victim lying in an intoxicated condition. The victim was
immediately sent to hospital. He further stated that seizure lists
were prepared by the G.R.P. officer regarding the articles
recovered from the accused persons and he proved his
signatures on the seizure lists (Ext.1/3, 1/4 and 1/5). He
identified the accused persons in court. His cross-examination
remained superficial.
(vii) P.W.7 – Shiv Kumar Marandi: This witness,
another R.P.F. constable, corroborated the prosecution case and
stated that three persons were apprehended on the platform after
a chase and that one person was found lying in an intoxicated
state and was brought to the R.P.F. post. He identified the
accused persons in court. In cross-examination, no material
contradiction was brought out.
(viii) P.W.8 – Anil Kumar (Officer-in-Charge, G.R.P.):
This witness stated that on receiving information about a case of
“Jaharkhuri” at Purnea Junction, he reached the R.P.F. post and
found the victim unconscious. The victim was sent to hospital
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and after treatment his fardbeyan was recorded. He further
stated that articles recovered from the accused persons were
seized and the medicines recovered were sent to the Forensic
Science Laboratory, Patna. He proved the fardbeyan (Ext.6),
seizure lists (Ext.7, 8 and 9) and medical certificate (Ext.3). In
cross-examination, nothing material was elicited.
(ix) P.W.9 – Md. Mustakim: This witness stated that
he came to know about the incident through telephone and that
the occurrence was narrated to him by the police as well as the
victim Kalim. He admitted that he had not witnessed the
occurrence and that he was the elder brother-in-law of the
victim. His evidence is, therefore, hearsay in nature.
(x) P.W.10 – Md. Samsul: This witness is the father of
the victim. He stated that he did not witness the occurrence and
learnt about the incident from his son Kalim. In cross-
examination, nothing significant was elicited and he stated that
the case was instituted on the following morning.
14. It appears from the record that the seizure list was
prepared subsequent to the search of the appellants, indicating
that the recovery was duly documented after completion of the
search proceedings. The officer who conducted the seizure had
reasonable grounds to believe that all three appellants should be
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searched. During the search, a quantity exceeding the prescribed
small limit of the psychotropic substance Lorazepam was
recovered from their conscious possession. This substance is
listed at Serial No. 210 of Schedule ‘H’ in the Central
Government’s notification.
15. On the basis of materials surfaced during the trial,
the appellants/accused was examined under Section 313 of the
Cr.PC by putting incriminating circumstances/evidences
surfaced against them, which they denied and shows their
complete innocence.
16. The trial court, however, proceeded on the premise
that the case was one of chance recovery, thereby diluting the
evidentiary value of the seizure. On such assumption, the court
further held that the mandatory procedural safeguards as
contemplated under Sections 50 and 52 of the NDPS Act had
not been complied with. Relying on this reasoning, the trial
court refrained from recording a finding of guilt against the
appellants under Sections 20 and 22 of the NDPS Act.
17. In respect of the finding of the trial court, I find it
apt to reproduce observation made by the Apex Court in
Paragraph Nos. 53 to 60 in the case of State of Punjab Vs.
Baldev Singh, reported in (1999) 6 SCC 172:
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“53. The Constitution Bench in Sanjay Dutt case
[(1994) 6 SCC 569 : 1995 SCC (Cri) 32] thus clearly held that
once the prosecution has proved unauthorised conscious
possession of any of the specified arms and ammunition etc. in a
notified area by the accused, the offence is complete and the
conviction must follow on the strength of the statutory
presumption, unless the accused proves the non-existence of a
fact essential to constitute any of the ingredients of that offence.
Indeed, the presumption, even though statutory in nature, was
held to be rebuttable.
54. Thus, even if it be assumed for the sake of
argument that all the material seized during an illegal search
may be admissible as relevant evidence in other proceedings, the
illicit drug or psychotropic substance seized in an illegal search
cannot by itself be used as proof of unlawful conscious
possession of the contraband by the accused. An illegal search
cannot also entitle the prosecution to raise a presumption under
Section 54 of the Act because presumption is an inference of fact
drawn from the facts which are known as proved. A presumption
under Section 54 of the Act can only be raised after the
prosecution has established that the accused was found to be in
possession of the contraband in a search conducted in
accordance with the mandate of Section 50.
55. We, therefore, hold that an illicit article seized
from the person of an accused, during search conducted in
violation of the safeguards provided in Section 50 of the Act,
cannot by itself be used as admissible evidence of proof of
unlawful possession of the contraband on the accused. Any other
material/article recovered during that search may, however, be
relied upon by the prosecution in other/independent proceedings
against an accused notwithstanding the recovery of that material
during an illegal search and its admissibility would depend upon
the relevancy of that material and the facts and circumstances of
that case.
56. Thus, considered we are of the opinion that the
judgment in Ali Mustaffa case [(1994) 6 SCC 569 : 1995 SCC
(Cri) 32] correctly interprets and distinguishes the judgment in
Pooran Mal case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] and
the broad observations made in Pirthi Chand case [(1996) 2 SCC
37 : 1996 SCC (Cri) 210] and Jasbir Singh case [(1996) 1 SCC
288 : 1996 SCC (Cri) 1] are not in tune with the correct
exposition of law, as laid down in Pooran Mal case [(1974) 1
SCC 345 : 1974 SCC (Tax) 114].
57. On the basis of the reasoning and discussion
above, the following conclusions arise:
(1) That when an empowered officer or a
duly authorised officer acting on prior information is
about to search a person, it is imperative for him to
inform the person concerned of his right under sub-
section (1) of Section 50 of being taken to the nearest
gazetted officer or the nearest Magistrate for making the
search. However, such information may not necessarily
be in writing.
(2) That failure to inform the person
concerned about the existence of his right to be searched
before a gazetted officer or a Magistrate would cause
prejudice to an accused.
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(3) That a search made by an empowered
officer, on prior information, without informing the
person of his right that if he so requires, he shall be
taken before a gazetted officer or a Magistrate for search
and in case he so opts, failure to conduct his search
before a gazetted officer or a Magistrate, may not vitiate
the trial but would render the recovery of the illicit
article suspect and vitiate the conviction and sentence of
an accused, where the conviction has been recorded only
on the basis of the possession of the illicit article,
recovered from his person, during a search conducted in
violation of the provisions of Section 50 of the Act.
(4) That there is indeed need to protect
society from criminals. The societal intent in safety will
suffer if persons who commit crimes are let off because
the evidence against them is to be treated as if it does not
exist. The answer, therefore, is that the investigating
agency must follow the procedure as envisaged by the
statute scrupulously and the failure to do so must be
viewed by the higher authorities seriously inviting action
against the official concerned so that the laxity on the
part of the investigating authority is curbed. In every
case the end result is important but the means to achieve
it must remain above board. The remedy cannot be worse
than the disease itself. The legitimacy of the judicial
process may come under a cloud if the court is seen to
condone acts of lawlessness conducted by the
investigating agency during search operations and may
also undermine respect for the law and may have the
effect of unconscionably compromising the
administration of justice. That cannot be permitted. An
accused is entitled to a fair trial. A conviction resulting
from an unfair trial is contrary to our concept of justice.
The use of evidence collected in breach of the safeguards
provided by Section 50 at the trial, would render the trial
unfair.
(5) That whether or not the safeguards
provided in Section 50 have been duly observed would
have to be determined by the court on the basis of the
evidence led at the trial. Finding on that issue, one way
or the other, would be relevant for recording an order of
conviction or acquittal. Without giving an opportunity to
the prosecution to establish, at the trial, that the
provisions of Section 50 and, particularly, the safeguards
provided therein were duly complied with, it would not be
permissible to cut short a criminal trial.
(6) That in the context in which the
protection has been incorporated in Section 50 for the
benefit of the person intended to be searched, we do not
express any opinion whether the provisions of Section 50
are mandatory or directory, but hold that failure to
inform the person concerned of his right as emanating
from sub-section (1) of Section 50, may render the
recovery of the contraband suspect and the conviction
and sentence of an accused bad and unsustainable in
law.
(7) That an illicit article seized from the
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person of an accused during search conducted in
violation of the safeguards provided in Section 50 of the
Act cannot be used as evidence of proof of unlawful
possession of the contraband on the accused though any
other material recovered during that search may be
relied upon by the prosecution, in other proceedings,
against an accused, notwithstanding the recovery of that
material during an illegal search.
(8) A presumption under Section 54 of the
Act can only be raised after the prosecution has
established that the accused was found to be in
possession of the contraband in a search conducted in
accordance with the mandate of Section 50. An illegal
search cannot entitle the prosecution to raise a
presumption under Section 54 of the Act.
9) That the judgment in Pooran Mal case
[(1974) 1 SCC 345 : 1974 SCC (Tax) 114] cannot be
understood to have laid down that an illicit article seized
during a search of a person, on prior information,
conducted in violation of the provisions of Section 50 of
the Act, can by itself be used as evidence of unlawful
possession of the illicit article on the person from whom
the contraband has been seized during the illegal search.
(10) That the judgment in Ali Mustaffa case
[(1994) 6 SCC 569 : 1995 SCC (Cri) 32] correctly
interprets and distinguishes the judgment in Pooran Mal
case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] and the
broad observations made in Pirthi Chand case [(1996) 2
SCC 37 : 1996 SCC (Cri) 210] and Jasbir Singh case
[(1996) 1 SCC 288 : 1996 SCC (Cri) 1] are not in tune
with the correct exposition of law as laid down in Pooran
Mal case [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] .
58. The above conclusions are not a summary of our
judgment and have to be read and considered in the light of the
entire discussion contained in the earlier part.
59. We, accordingly, answer the reference in the
manner aforesaid.
60. Let the criminal appeals and special leave
petitions be now placed for disposal before an appropriate
Bench.
18. In view of the provisions contained in Chapter IV
of the NDPS Act, mere unlawful possession of a contraband
substance constitutes an offence. Such offence is punishable
with rigorous imprisonment for a term not less than ten years,
which may extend to twenty or even thirty years, depending on
the nature and quantity of the substance involved. It also carries
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a monetary penalty, with a fine not less than one lakh rupees,
which may extend to two lakhs or three lakhs of rupees.
Accordingly, possession of a dangerous drug or psychotropic
substance attracts stringent penal consequences under the Act.
19. The approach of the trial court on the face of the
record appears to be legally unsustainable and contrary to
settled principles governing search and seizure under the NDPS
Act. The mere characterization of the recovery as a chance
recovery does not, by itself, absolve the court from examining
whether substantial compliance with statutory safeguards had
been made. Furthermore, the evidence on record required a
deeper scrutiny to determine whether procedural lapses, if any,
were sufficient to vitiate the prosecution case in its entirety. By
adopting a hyper-technical view and extending the benefit of
doubt without proper appreciation of the material evidence, the
trial court failed to exercise its jurisdiction judiciously.
Consequently, the acquittal of the appellants under Sections 20
and 22 of the NDPS Act is vitiated by serious legal infirmities.
The findings recorded by the trial court, therefore, suffer from
manifest error and warrant interference.
20. It would be appropriate to reproduce the
provisions of Sections 20, 22 and 42 to 52 of the NDPS Act for
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the sake of convenience and better understanding of the facts,
which is as under:-
“20. Punishment for contravention in
relation to cannabis plant and cannabis.-—
Whoever, in contravention of any provisions of
this Act or any rule or order made or condition of licence
granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports inter-
State or uses cannabis, shall be punishable--(i)where
such contravention relates to clause (a) with rigorous
imprisonment for a term which may extend to ten years
and shall also be liable to fine which may extend to one
lakh rupees;(ii)where such contravention relates to sub-
clause (b),—
(A) and involves small quantity, with rigorous
imprisonment for a term which may extend to one year,
or with fine, which may extend to ten thousand rupees, or
with both;
(B) and involves quantity lesser than commercial
quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years
and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with
rigorous imprisonment for a term which shall not be less
than ten years but which may extend to twenty years and
shall also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh
rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees.
22. Punishment for contravention in relation to
psychotropic substances.—
Whoever, in contravention of any provision of
this Act or any rule or order made or condition of licence
granted thereunder, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports inter-
State or uses any psychotropic substance shall be
punishable,--
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(a) where the contravention involves small
quantity, with rigorous imprisonment for a term which
may extend to one year, or with fine which may extend to
ten thousand rupees or with both;
(b) where the contravention involves quantity
lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term which
may extend to ten years and with fine which may extend
to one lakh rupees;
(c) where the contravention involves commercial
quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to
twenty years and shall also be liable to fine which shall
not be less than one lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding two
lakh rupees.
42. Power of entry, search, seizure and arrest
without warrant or authorisation.—
(1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue intelligence
or any other department of the Central Government
including paramilitary 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 persons
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,
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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 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 authorization 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, 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
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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.
44. Power of entry, search, seizure and arrest in
offences relating to coca plant, opium poppy and
cannabis plant.
The provisions of sections 41, 42 and 43, shall so
far as may be, apply in relation to the offences
punishable under Chapter IV and relating to coca plant,
the opium poppy or cannabis plant and for this purpose
references in those sections to narcotic drugs, or
psychotropic substance, or controlled substance, shall be
construed as including references to coca plant, the
opium poppy and cannabis plant.
45. Procedure where seizure of goods liable to
confiscation not practicable.—
Where it is not practicable to size any goods
(including standing crop) which are liable to
confiscation under this Act, any officer duly authorised
under section 42 may serve on the owner or person in
possession of the goods, an order that he shall not
remove, part with or otherwise deal with the goods
except with the previous permission of such officer.
46. Duty of land holder to give information of
illegal cultivation.—
Every holder of land shall give immediate
information to any officer of the police or of any of the
departments mentioned in section 42 of all the opium
poppy, cannabis plant or coca plant which may be
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illegally cultivated within his land and every such holder
of land who knowingly neglects to give such information,
shall be liable to punishment.
47. Duty of certain officers to give information
of illegal cultivation.—
Every officer of the Government and every
panch, sarpanch and other village officer of whatever
description shall give immediate information to any
officer of the Police or of any of the departments
mentioned in section 42 when it may come to his
knowledge that any land has been illegally cultivated
with the opium poppy, cannabis plant or coca plant, and
every such officer of the Government, panch, sarpanch
and other village officer who neglects to give such
information, shall be liable to punishment.
48. Power of attachment of crop illegally
cultivated.—
Any Metropolitan Magistrate, Judicial
Magistrate of the first class or any Magistrate specially
empowered in this behalf by the State Government or any
officer of a gazetted rank empowered under section 42
may order attachment of any opium poppy, cannabis
plant or coca plant which he has reason to believe to
have been illegally cultivated and while doing so may
pass such order (including an order to destroy the crop)
as he thinks fit.
49. Power to stop and search conveyance.—
Any officer authorised under section 42, may, if
he has reason to suspect that any animal or conveyance
is, or is about to be, used for the transport of any
narcotic drug or psychotropic substance or controlled
substance, in respect of which he suspects that any
provision of this Act has been, or is being, or is about to
be, contravened at any time, stop such animal or
conveyance, or, in the case of an aircraft, compel it to
land and —
(a) rummage and search the conveyance or part
thereof;
(b) examine and search any goods on the animal
or in the conveyance;
(c) if it becomes necessary to stop the animal or
the conveyance, he may use all lawful means for stopping
it, and where such means fail, the animal or the
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conveyance may be fired upon.
50. Conditions under which search of persons
shall be conducted.—
(1) When any officer duly authorised under
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 the nearest Gazette 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
subsection (1).
(3) The Gazette 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 Gazette Officer or
Magistrate, proceed to search the person as provided
under section 100 of the Code of Criminal Procedure,
1973 (2 of 1974).
(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.
50A. Power to undertake controlled delivery.
The Director General of Narcotics Control
Bureau constituted under sub-section (3) of section 4 or
any other officer authorised by him in this behalf, may,
notwithstanding anything contained in this Act,
undertake controlled delivery of any consignment to—
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(a) any destination in India;
(b) a foreign country, in consultation with the
competent authority of such foreign country to which
such consignment is destined, in such manner as may be
prescribed.
51. Provisions of the Code of Criminal
Procedure, 1973 to apply to warrants, arrests, searches
and seizures.
The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply, in so far as they
are not inconsistent with the provisions of this Act, to all
warrants issued and arrests, searches and seizures made
under this Act.
52. Disposal of persons arrested and articles
seized.—
(1) Any officer arresting a person under section
41, section 42 section 43 or section 44 shall, as soon as
may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized
under warrant issued under sub-section (1) of section 41
shall be forwarded without unnecessary delay to the
Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized
under sub-section (2) of section 41, section 42, section
43 or section 44 shall be forwarded without unnecessary
delay to--
(a) the officer-in-charge of the nearest police
station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or
article is forwarded under sub-section (2) or sub-section
(3) shall, with all convenient dispatch, take such
measures as may be necessary for the disposal according
to law of such person or article.
52A. Disposal of seized narcotic drugs and
psychotropic substances.
(1) The Central Government may, having regard
to the hazardous nature, vulnerability to theft,
substitution, constraint of proper storage space or any
other relevant consideration, in respect of any narcotic
drugs, psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
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specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of narcotic
drugs, class of psychotropic substances, class of
controlled substances or conveyances, which shall, as
soon as may be after their seizure, be disposed of by such
officer and in such manner as that Government may,
from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic
substances, controlled substances or conveyances has
been seized and forwarded to the officer-in-charge of the
nearest police station or to the officer empowered under
section 53, the officer referred to in sub-section (1) shall
prepare an inventory of such narcotic drugs or
psychotropic substances containing such details relating
to their description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars of
the narcotic drugs or psychotropic substances or the
packing in which they are packed, country of origin and
other particulars as the officer referred to in sub-section
(1) may consider relevant to the identity of the narcotic
drugs or psychotropic substances in any proceedings
under this Act and make an application, to any
Magistrate for the purpose of—
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate,
photographs of such drugs, substances or conveyances
and certifying such photographs as true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list of
samples so drawn.
(3) Where an application is made under sub-
section (2), the Magistrate shall, as soon as may be,
allow the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1872) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court trying
an offence under this Act, shall treat the inventory, the
photographs of narcotic drugs, psychotropic substances,
controlled substances or conveyances and any list of
samples drawn under subsection (2) and certified by the
Magistrate, as primary evidence in respect of such
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offence.”
21. I have already recorded, on the basis of the
evidence available on record, that all three appellants were in
unlawful possession of the contraband, which constitutes the
sine qua non for recording a conviction under the NDPS Act
and forms the most essential ingredient of the offence
thereunder. The substance in question is a notified drug falling
within Schedule ‘H’ of the relevant Government Notification,
thereby attracting the rigours of the Act.
22. In light of the aforesaid discussion, the evidence
adduced during the course of trial, and the law laid down by the
Apex Court, this Court finds the appellants guilty of the offence
punishable under Section 22 of the NDPS Act and the judgment
and order of the trial court is modified to the above extent.
Accordingly, they are hereby convicted and sentenced to
undergo rigorous imprisonment for a term of ten years each,
along with a fine of Rs. 1,00,000/- each. However, it is noted
that appellant no. 1, Md. Manowar, has already undergone
custody for a period of 3 years and 3 months, appellant no. 2,
Md. Arif, has undergone custody for 2 years and 6 months, and
appellant no. 3, Md. Zafar, has undergone custody for 4 years
and 3 months. The period of detention already undergone by the
appellants during investigation and trial shall be set off against
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the substantive sentence of imprisonment imposed upon them,
in accordance with law.
23. The appellants are directed to be taken into
custody forthwith.
24. Accordingly, the present appeal stands dismissed.
25. The Patna High Court, Legal Services Committee
is, hereby, directed to pay a sum of Rs. 5,000/- (Rupees Five
Thousand) to Mr. Atul Dayal, learned Amicus Curiae, as
consolidated fee, for rendering his valuable professional service
for disposal of the present appeal.
26. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 24.03.2026
Transmission Date 24.03.2026
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