Patna High Court

Yogendra SahversusThe State Of Bihar

Decided: 20 April 2026
Disposal: ALLOWED
Bench: PURNENDU SINGH

Holding

The prosecution failed to prove the charge beyond reasonable doubt, so the conviction was set aside and the appellant acquitted.

Summary

The appellant Yogendra Sah was convicted under Section 20(b)(ii)(B) of the NDPS Act for possession of 8.5 kg of ganja, based solely on the testimony of S.S.B. officials. The appellant appealed under CrPC Section 374(2), arguing that the prosecution failed to comply with mandatory search‑seizure procedures, did not produce the seized narcotic as a material exhibit, and relied on inconsistent and unreliable witness statements. The High Court examined the trial record, noting contradictions between the informant and the camp in‑charge, the lack of independent witnesses, and the non‑production of the seized contraband despite a forensic report. Citing precedents that non‑production of seized material is fatal to the prosecution, the Court held that the evidence did not meet the stringent burden under the NDPS Act. Consequently, the conviction was set aside, the appellant was acquitted, and his bail bond discharged.

Issues considered

Did the prosecution comply with the mandatory provisions of the NDPS Act regarding search, seizure, and production of seized narcotic as evidence?
Is testimony of official police witnesses without independent corroboration sufficient to sustain a conviction under Section 20(b)(ii)(B) of the NDPS Act?
Does the non‑production of the seized ganja as a material exhibit defeat the prosecution's case?
Should the benefit of doubt be granted to the appellant under the stringent standards of the NDPS Act?
Can the conviction be set aside under CrPC Section 374(2) on the ground of insufficient evidence?

Legislation cited

Code of Criminal Procedure — s. 374(2)
Narcotic Drugs and Psychotropic Substances Act — s. 20(b)(ii)(B), 42, 50

Subjects

NDPS Act
drug possession
search and seizure
burden of proof
benefit of doubt
appeal
forensic evidence
non‑production of evidence
acquittal

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2 of 2014
Arising Out of PS. Case No.-136 Year-2009 Thana- SONBERSA District- Sitamarhi
======================================================
Yogendra Sah Son Of Kishori Singh Resident Of Village-Purandaha, Rajbara,
P.S.-Sonbarsa, District-Sitamarhi.

... ... Appellant/s
Versus
The State Of Bihar

... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Ashok Kumar Jha, Advocate
For the Respondent/s : Mr.Abhay Kumar, App
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 20-04-2026

Heard learned counsel appearing on behalf of the

appellant and, learned APP for the State.

2. The present appeal has been filed under Section

374 (2) of the Code of Criminal Procedure challenging the

judgment of conviction dated 12-09-2013 and order of sentence

dated 16-09-2013 passed by the learned 1st. Additional Sessions

Judge-cum-Special Judge, Sitamarhi in GR No. 3297 of 2009 /

TR No. 07 of 2013, arising out of Sonbarsa P.S. Case No. 136 of

2009, whereby and whereunder the appellant has been

convicted for the offence punishable under Section 20(b)(ii)(B)

of the Narcotic Drugs and Psychotropic Substance Act and has

been sentenced to undergo Rigorous Imprisonment for 4 (four)

years along with a fine of Rs.20,000/- and in default of payment
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of fine to further undergo Rigorous Imprisonment for one year

more.

BRIEF FACTS

3. The prosecution case, in brief, is that on 30.11.1998

at about 10:30 A.M., the informant, along with other S.S.B.

jawans, while were on patrolling duty near Pillar Nos. 325 to

326/11 at Mangwa Bazar, under Sonbarsa Police Station, near

the Nepal border, they had noticed a person carrying a black

bag, who had attempted to escape by running away towards

Pillar No. 326/32, he was chased and apprehended near

Hanuman Temple. The accused on interrogation, had disclosed

his name as Yogendra Sah (the appellant hereof). In the presence

of two independent witnesses, a search of his bag was

conducted, which contained ganja and the S.S.B. camp doctor

was called at the spot, who examined the substance with the aid

of a narcotics testing kit and opined that it was ganja. The

recovered contraband weighed 8 kilograms and 500 grams. The

accused appellant failed to produce any valid paper in respect of

the said contraband, the same was seized and a seizure list was

prepared.

4. On the basis of the statement of the informant, the

F.I.R being Sonbarsa P.S. Case No. 136 of 2009 was registered
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for the offences under sections 20(b)(ii)(B) of the NDPS Act

After institution of the FIR, the police proceeded with the

investigation and after completion of 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 ON BEHALF OF THE APPELLANTS

5. Learned counsel appearing on behalf of the

appellant submitted that the impugned judgment of conviction

and order of sentence passed by the learned trial court is wholly

unsustainable in the eyes of law as the prosecution has failed to

establish its case beyond reasonable doubt. It is contended that

there are material contradictions and inconsistencies in the

evidence of the prosecution witnesses, particularly between PW-

1 (informant) and PW-6 (camp incharge) regarding the place

and manner of seizure. While the informant stated that the

seizure was made at the place of occurrence in presence of

independent witnesses, PW-6 categorically deposed that the

seized contraband was weighed and sealed at the police station,

thereby creating serious doubt about the authenticity of the

alleged recovery. Further, the independent seizure witnesses

(PW-8 and PW-10) have not supported the prosecution case and
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have stated that their signatures were taken on blank papers,

which vitiates the prosecution version of lawful seizure.

6. Learned counsel further submitted that mandatory

provisions of the NDPS Act relating to search and seizure have

not been complied with, and the prosecution has also failed to

produce any chemical examination report to establish that the

seized substance was indeed Ganja. The Investigating Officer

himself admitted that the FSL report had not been received, yet

the learned trial court proceeded to convict the appellant, which

is a grave illegality. Additionally, the Malkhana incharge (PW-

11) stated that the seized contraband had already been

destroyed, thereby depriving the defence of any opportunity of

verification. In absence of evidence, coupled with procedural

lapses and contradictions in prosecution evidence, the

conviction of the appellant is not sustainable, and the appellant

is entitled to benefit of doubt and consequent acquittal. In such

circumstances, it was argued that the prosecution failed to prove

the charges beyond reasonable doubt and the trial court has

miserably failed to appreciate the evidence, leading to failure of

justice and therefore the conviction of the appellant under

section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic

Substance Act is liable to be set aside.
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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

rightly convicted the appellants for said offences.

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 12-09-2013 and order of sentence

dated 16-09-2013 for the offences under Section 20(b)(ii)(B) of

the NDPS Act.

11. During the trial, the prosecution has examined

altogether 11 witnesses, namely:

(i) (P.W.-1),- Purandar Das (informant)

(ii) (P.W.-2),- Manoj Kumar Mandal

(iii) (P.W.-3),- Kulbindar Singh
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(iv) (P.W.-4),- Kamal Moran

(v) (P.W.-5),- Constable G.D. Prakash

(vi) (P.W.-6),- Damodar Barua

(vii) (P.W.-7).- Thakur Devendra Nath Singh

(viii) (P.W.-8).- Ahiraj Shailendra Bhushan

(ix) (P.W.-9).- Jitendra Jha

(x) (P.W.-10).- Ram Nagina Mahto

(xi) (P.W. -11) – Dharmpal Kaithal

12. The prosecution has also relied upon following

document exhibited during the course of trial:-

(i) Initial of witness on Narcotic report (Exhibit-1),

(ii) Signature of Yogendra Sah on recovery memo

(Exhibit-2),

(iii) Signature of Yogendra Sah on seizure memo

(Exhibit-3)

(iv) Signature on apprehension memo (Exhibit-5)

(v) Signature on apprehension memo (Exhibit-6),

(vi) Formal F.I.R. (Exhibit-7)

(vI) Signature of witness on seizure list (Exhibit 4/1)

(vii) F.S.L. (Forensic Science Laboratory) report.

(Exhibit-8)

(viii) Self-written report of NK/GD Purendra Das.
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(Exhibit-9)

(ix) Signature on seizure memo (Exhibit 4/2)

(ix) Signature of O/C (Officer-in-Charge) on

Malkhana register (Exhibit-10)

(x) S.D. Entry No. 221 dated 14-11-11 (Exhibit-11)

13. Upon a meticulous examination of the record,

the evidence of the prosecution witnesses (PWs) can be

summarised as follows:

P.W. 1 – Purendra Das (Informant): This witness has

deposed that on the date of occurrence, while he was on

patrolling duty near Pillar No. 226/32 along the Indo-Nepal

border with his companion, he noticed one person coming from

the Nepal side in a suspicious manner. On being challenged, the

said person attempted to flee but was apprehended. Upon

search, 5 kg of Ganja wrapped in a polythene was recovered

from his bag and 3½ kg of Ganja was recovered from his jacket.

Thereafter, the Company Commander was informed, who

arrived at the spot and necessary documents were prepared. The

accused along with the seized contraband was taken to the

company office and subsequently handed over to Sonbarsa

Police Station. This witness has identified the accused in Court.

Nothing material has been elicited in his cross-examination to
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discredit his testimony.

P.W. 2 – Manoj Kumar Mandal: This witness is a

member of the patrolling party. He has supported the version of

P.W. 1 and stated that the accused was apprehended while

coming from the Nepal side and Ganja was recovered from his

possession. His testimony corroborates the seizure and

apprehension. Nothing contrary has been found in his cross-

examination.

P.W. 3 – Kulbindar Singh: This witness has also

deposed as a member of the patrolling party and has fully

supported the prosecution case. He has stated that the accused

was apprehended near the border and contraband Ganja was

recovered from his possession. His cross-examination does not

reveal any material contradiction.

P.W. 4 – Kamal Moran: This witness, being another

member of the patrolling party, has corroborated the evidence of

P.W. 1. He has stated that the accused was intercepted while

entering from Nepal side and Ganja was recovered from his

possession. His evidence remained intact during cross-

examination.

P.W. 5 – Constable G.D. Prakash: This witness has

also supported the prosecution case and stated that he was
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present during the patrolling and seizure. He has corroborated

the recovery of Ganja from the possession of the accused.

Nothing adverse has been brought out in his cross-examination.

P.W. 6 – Company Commander (S.S.B.): This

witness has deposed that on the date of occurrence, he was

posted as Company Commander In-charge at Sonbarsa. Upon

receiving information, he reached the spot and found that one

suspicious person had been apprehended. Upon inquiry, the

accused initially disclosed different names but later revealed his

name as Yogendra Sah. The seized Ganja was brought to the

camp and necessary documents were prepared. He has proved

his signatures on various documents, including:

• Certificate of Narcotics Expert (Ext. 1)
• Recovery Memo (Ext. 2)
• Application for institution of case (Ext. 3)
• Seizure Memo (Ext. 4)
• Apprehension Memo (Ext. 5)
• Signature on relevant pages (Ext. 6)

He has also identified the accused in Court. In

cross-examination, he stated that the Ganja was weighed at the

Police Station and sealed in his presence and that it was

examined by an expert prior to sealing.

P.W. 7 – Investigating Officer (S.I., Sonbarsa P.S.):

This witness has deposed that after registration of the case on

25.12.2009, investigation was entrusted to him. He inspected the
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place of occurrence and described the same as situated near

Indo-Nepal border between Malangwa (Nepal) and Sonbarsa,

near Pillar Nos. 325 to 326/11. He recorded statements of

witnesses and S.S.B. personnel. He further stated that the seized

Ganja was produced before the learned Special Judge and sent

to Forensic Science Laboratory (F.S.L.) for examination. After

completion of investigation, he submitted charge-sheet. In cross-

examination, he admitted that the seized Ganja was initially in

open condition and was sealed later after being produced before

the Court.

P.W. 8 – Ahiraj Shailendra Bhushan (Seizure List

Witness): This witness has proved his signature on the seizure

list. However, he has stated that no recovery was made in his

presence, thereby not fully supporting the prosecution case.

P.W. 9 – Formal Witness (Clerk): This witness has

proved the handwriting and signature of the informant on the

written application, which has been marked as Ext. 9. However,

in cross-examination, he stated that he had signed on plain paper

on the instruction of the police.

P.W. 10 – Seizure List Witness: This witness has

stated that S.S.B. personnel obtained his signatures on the

seizure memo and apprehension memo, which have been
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marked as Ext. 4/2 and Ext. 5/1 respectively. In cross-

examination, he admitted that he was not aware of the contents

of the documents.

P.W. 11 – Dharampal Kaithal (Malkhana In-charge):

This witness has deposed that he was posted as Malkhana In-

charge at Sonbarsa Police Station. He has proved the Malkhana

136/09, showing deposit of 8.5 kg of Ganja. He has also proved

the relevant entries and signatures of the concerned officials.

14. The record further reveals that P.W.-8 and P.W.-

10, who were cited as seizure list witnesses, have also not

supported the prosecution case during the trial. P.W.-10 has

merely stated that his signatures were obtained on the seizure

memo and apprehension memo (Ext. 4/2 and Ext. 5/1), and in

his cross-examination, he admitted that he had no knowledge of

the contents of those documents. Similarly, P.W.-8 (Ahiraj

Shailendra Bhushan) has only proved his signature on the

seizure list but has categorically stated that no recovery was

effected in his presence. Therefore, their testimonies do not

inspire confidence and are not relevant for the purpose of

establishing the guilt of the accused/appellant.

15. On the basis of materials surfaced during the
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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. It would be appropriate to reproduce the

provision of Section 20 of NDPS Act for 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 provision 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; and
(ii) where such contravention relates to sub-
clause (b),—
(A) and involves small quantity, with rigorous
imprisonment for a term which may extend to 2[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
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recorded in the judgment, impose a fine exceeding two lakh
rupees..”
17. It is well settled law that although the NDPS Act

envisages a reverse burden of proof, it is well settled that the

prosecution must, in the first instance, establish the foundational

facts by leading cogent and reliable evidence in strict

compliance with the mandatory statutory provisions governing

search, seizure and recovery. It is only upon such initial burden

being duly discharged that the onus shifts upon the accused.

Mere registration of a case under the Act does not ipso facto

operate to shift the burden at the threshold. Having regard to the

stringent nature of the statute, the evidence on record warrants

strict scrutiny, and where the prosecution fails to prove its case

beyond reasonable doubt, the benefit of such doubt must enure

to the accused/appellant."

18. It appears that, all the prosecution witnesses

examined in the present case are official witnesses belonging to

the S.S.B., and there is a complete absence of reliable

independent evidence with regard to the alleged recovery. It

would, therefore, be unsafe to base a conviction solely on their

testimony, especially in the absence of corroboration.

Significantly, the alleged contraband (ganja) was neither

produced before the Trial Court nor marked as a material
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exhibit, and no plausible explanation has been furnished for

such non-production. Consequently, there is no cogent material

on record to establish a nexus between the substance allegedly

seized and the samples sent for forensic examination. In such

circumstances, question arises whether the prosecution has

failed to prove its case beyond reasonable doubt, entitling the

appellant to the benefit of doubt.

19. The Apex Court in the judgment of Gorakh Nath

Prasad vs. State of Bihar reported in (2018) 2 SCC 305, in para

nos. 6 and 7 has observed that the non-production of the seized

material is therefore considered fatal to the prosecution case

which is reproduced hereinafter:

“6. In the facts of the present case, the
independent witnesses with regard to the search and
seizure, PW 2 and PW 3, having turned hostile deposing
that their signatures were obtained on blank paper at the
police station, the mere fact of a FSL Report (Ext. 8), being
available is no confirmation either of the seizure or that
what was seized was ganja, in the absence of the production
of the seized item in court as an exhibit. The non-production
of the seized material is therefore considered fatal to the
prosecution case. The issue whether there has been
compliance with Sections 42 and 50 of the NDPS Act loses
its relevance in the facts of the case.
7. The remaining prosecution witnesses being police
officers only, it will not be safe to rely upon their testimony
alone, which in any event cannot be sufficient evidence by
itself either with regard to recovery or the seized material
being ganja. No explanation has also been furnished by the
prosecution for non-production of the ganja as an exhibit in
the trial. The benefit of doubt will, therefore, have to be
given to the appellant and in support of which learned
Senior Counsel Shri Rai has relied upon Jitendra v. State of
M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004
SCC (Cri) 2028] and reiterated in Ashok v. State of M.P.
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[Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC
(Cri) 547] as follows: (SCC pp. 126-27, paras 12-13)
“12. Last but not the least, the alleged narcotic powder
seized from the possession of the accused, including the
appellant was never produced before the trial court as a
material exhibit and once again there is no explanation for
its non-production. There is, thus, no evidence to connect
the forensic report with the substance that was seized from
the possession of the appellant or the other accused.
13. It may be noted here that in Jitendra v. State of M.P.
[Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC
(Cri) 2028] , on similar facts this Court held that the
material placed on record by the prosecution did not bring
home the charge against the accused beyond reasonable
doubt and it would be unsafe to maintain their conviction
on that basis. In Jitendra [Jitendra v. State of M.P., (2004)
10 SCC 562 : 2004 SCC (Cri) 2028] , the Court observed
and held as under: (SCC pp. 564-65, paras 5-6)
‘5. The evidence to prove that charas and ganja were
recovered from the possession of the accused consisted of
the evidence of the police officers and the panch witnesses.
The panch witnesses turned hostile. Thus, we find that apart
from the testimony of Rajendra Pathak (PW 7), Angad
Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is
no independent witness as to the recovery of the drugs from
the possession of the accused. The charas and ganja
alleged to have been seized from the possession of the
accused were not even produced before the trial court, so as
to connect them with the samples sent to the forensic
science laboratory. There is no material produced in the
trial, apart from the interested testimony of the police
officers, to show that the charas and ganja were seized from
the possession of the accused or that the samples sent to the
forensic science laboratory were taken from the drugs
seized from the possession of the accused. …
6. … The best evidence would have been the seized
materials which ought to have been produced during the
trial and marked as material objects. There is no
explanation for this failure to produce them. Mere oral
evidence as to their features and production of panchnama
does not discharge the heavy burden which lies on the
prosecution, particularly where the offence is punishable
with a stringent sentence as under the NDPS Act. In this
case, we notice that panchas have turned hostile so the
panchnama is nothing but a document written by the police
officer concerned.””
20.In the facts and circumstances of the present

case, it is evident that the independent witnesses, P.W.-8 and
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P.W.-10, to the alleged search and seizure have not supported

the prosecution version, and material inconsistencies emerge

from the record, particularly as the said seizure list witnesses

have deposed that they were unaware of the contents of the

documents and that their signatures were obtained on plain

papers by the S.S.B. personnel. The prosecution case thus rests

predominantly on the testimony of official witnesses without

any credible independent corroboration, and the non-production

of the alleged seized contraband as a material exhibit further

creates a serious lacuna in the chain of evidence. In such

circumstances, the mere availability of the F.S.L. Report cannot

be treated as conclusive proof either of the recovery or of the

nature of the substance allegedly seized, and in the absence of

reliable evidence establishing the factum of recovery, its

evidentiary value stands considerably diminished, thereby

creating a serious doubt in the prosecution case, as a result of

which this Court is of the considered view that the prosecution

has failed to prove the charge against the appellant beyond

reasonable doubt, entitling the appellant to the benefit of doubt.

21. Accordingly, the present appeal is allowed.

22. The impugned judgment of conviction dated 12-09-

2013 and order of sentence dated 16-09-2013 passed by the
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learned 1st. Additional Sessions Judge-cum-Special Judge,

Sitamarhi in GR No. 3297 of 2009 / TR No. 07 of 2013, arising

out of Sonbarsa P.S. Case No. 136 of 2009 is hereby set aside.

Consequently, the above-named appellant is acquitted from all

the charges levelled against him. Since the appellant is on bail,

he is discharged from the liability of his bail bond. The fine

deposited by the appellant, if any, shall be refunded to him.

23. 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)

Sanjay/-
AFR/NAFR AFR
CAV DATE 03.04.2026
Uploading Date 20.04.2026
Transmission Date 20.04.2026

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