Patna High Court
Rishi KumarversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SUNIL DUTTA MISHRA
Holding
The High Court held that the prosecution failed to establish the charge under Section 20(b)(ii)(B) of the NDPS Act beyond reasonable doubt due to material procedural deficiencies, and therefore set aside the conviction.
Summary
The appellant Rishi Kumar was arrested on 18 August 2010 after police claimed to have recovered 11.5 kg of ganja from a bag he was carrying. The trial court convicted him under Section 20(b)(ii)(B) of the NDPS Act, imposing five years’ rigorous imprisonment and a fine. On appeal, the High Court examined whether the prosecution had proved conscious possession beyond reasonable doubt and complied with the stringent procedural safeguards mandated by the NDPS Act, including proper seizure, sampling, safe custody, and the requirements of Section 50 and Section 52A. The Court found serious inconsistencies: hostile seizure‑list witnesses, non‑production of the seized contraband, lack of a clear chain of custody, and procedural lapses in documentation and forensic testing. Relying on Supreme Court precedents that emphasize strict compliance with NDPS procedural safeguards, the Court held that the prosecution’s case was insufficient. Consequently, the conviction was set aside and the appellant acquitted, with the appeal allowed.
Issues considered
- Whether the prosecution proved conscious possession of the seized narcotics under Section 20(b)(ii)(B) of the NDPS Act beyond reasonable doubt.
- Whether the mandatory procedural safeguards under the NDPS Act, including proper seizure, sampling, safe custody, and compliance with Section 50 and Section 52A, were observed.
- Whether the conviction can be sustained despite hostile independent witnesses and non‑production of the seized contraband.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 313, 465
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(B), 21, 22, 23, 50, 52A, 8(c)
Subjects
- NDPS Act
- conscious possession
- procedural safeguards
- seizure
- chain of custody
- benefit of doubt
- acquittal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.521 of 2012
Arising Out of PS. Case No.-198 Year-2010 Thana- JAKKANPUR District- Patna
======================================================
Rishi Kumar, S/o Arbind Ray, R/o Village - Rampur, P.S. Raghopur, Distt. -
Vaishali
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Dhirendra Kumar Sinha, Advocate
Mr. Yashpal Yadav, Advocate
Ms. Soni Kumari, Advocate
Mr. Amrit Lal, Advocate
Ms. Vaishnavi Kashyap, Advocate
For the Respondent : Mr. Abhay Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 25-02-2026
1. Heard learned counsel for the appellant as well
as learned A.P.P. for the State.
2. The present criminal appeal has been preferred
against the judgment of conviction dated 12.06.2012 and order
of sentence dated 14.06.2012 passed by learned Additional
Sessions Judge XI, Patna (hereinafter referred to as ‘Trial
Court’) in Special Case No. 28 of 2010 arising out of Jakkanpur
P.S. Case No.198 of 2010, wherein the learned Trial Court
convicted the appellant herein under Section 20 (b) (ii) (B) of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as ‘NDPS Act’) and sentenced him to
undergo R.I. for five years and to pay fine of Rs.25,000/-, and in
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default thereof to undergo further imprisonment for one year.
The period of detention already undergone was directed to be set
off.
3. The prosecution case, in brief, is that on
18.08.2010 at about 10:30-11:00 PM, the informant P.S.I
Amlesh Kumar (P.W.-1) along with hawaldar Shaukat Ali Khan
(P.W.-2) and constable Manoranjan Kumar (P.W.-5), while on
patrolling duty near the eastern portion of Bhikhari Thakur Pool
in front of Lucky Medical Hall under Jakkanpur Police Station,
noticed two persons coming from the northern side. On seeing
the police party, both persons attempted to flee, however, one of
them, who was carrying a plastic jhola(bag), was apprehended
at the spot and disclosed his name as Rishi Kumar (appellant).
Upon search of the said jhola, in the presence of two witnesses
namely, Sanny Rai (P.W.-4) and Pappu Kumar (P.W.-3), 11
kilograms and 500 grams of ganja, said to be packed bundle in
orange coloured plastic tied with sutli (thread) having mark P.K.
and Pappu Kumar, was recovered and seized. On the seizure List
memo (Ext.-1) two witnesses and the appellant had put their
signature (Ext.-1/1). Apprehended accused (appellant), seized
ganja and written report (Ext.-2) were submitted by the
informant to the In-charge Police Station, on the basis of which
Patna High Court CR. APP (SJ) No.521 of 2012 dt.25-02-2026
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the formal F.I.R. bearing Jakkanpur P.S. Case No.198 of 2010
(Exhibit-3) dated 19.08.2010 was registered under Sections 20
and 22 of the NDPS Act and S.I. Rajesh Khalifa (P.W.-6) was
made Investigating Officer to investigate the case. The sample
of the seized ganja was sent to the Forensic Science Laboratory
(FSL), Patna vide Requisition/Memo No.4009 dated 27.08.2010
(Ext.-4) by Registrar, Civil Court, Patna through I.O., which by
report dated 29.07.2011 (Ext.-5) reported the substance to be
ganja.
4. After completion of the investigation, charge-
sheet bearing C.S. No.245 of 2010 was submitted against the
appellant under Sections 20 and 22 of the NDPS Act. Further,
learned Sessions Judge took cognizance of the offence against
the appellant vide order of cognizance dated 06.10.2010 and
thereafter, the case was transferred to the learned Trial Court for
disposal. Subsequently, charges were framed, vide order dated
03.01.2011, against the appellant under Sections 8 (c) and 20 (b)
(ii) (B) of the NDPS Act wherein the appellant pleaded not
guilty and claimed trial.
5. The prosecution has examined altogether six
witnesses in this case to prove charges against the appellant,
who are as under:
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P.Ws. Names
P.W.-1 Amlesh Kumar (Informant/Police official)
P.W.-2 Saukat Ali Khan (Police official present at P.O.)
P.W.-3 Pappu Kumar (seizure list witness)
P.W.-4 Sanny Rai (seizure list witness)
P.W.-5 Manoranjan Kumar Singh (Police constable)
P.W.-6 Rajesh Khalifa (Investigation Officer of the
case)
6. In support of their case, prosecution has
exhibited following documentary evidence:
Exts. Particulars
Ext.-1 Seizure List
Ext.-1/1 Signature of the witnesses on Seizure list
Ext.-2 Written report of the informant Amlesh Kumar
Ext.-3 F.I.R. bearing Jakkanpur P.S. Case No.198 of 2010
Ext.-4 Requisition for Forensic Science, Bihar, Patna
Ext.-5 Report of FSL, Patna
7. After closure of the prosecution evidence, the
statement of the appellant was recorded under Section 313 of the
Code of Criminal Procedure, 1973 on 12.04.2012 wherein he
denied the allegations and pleaded innocence. However, in his
defence, the appellant has not adduced any oral or documentary
evidence.
8. Upon appreciation of the evidence on record, the
learned Trial Court held that the prosecution has proved the
charge under Section 20 (b) (ii) (B) of the NDPS Act beyond
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reasonable doubt and accordingly, convicted and sentenced the
appellant as stated above. Aggrieved by the said judgment of
conviction and order of sentence, the appellant has preferred the
present appeal.
9. Learned counsel for the appellant assailed the
impugned judgment on the ground that the same is contrary to
the facts on record and settled principles governing prosecutions
under the NDPS Act. It is submitted that the mandatory
safeguards prescribed under the NDPS Act were not complied
with in the present case. The seizure list witnesses (P.Ws. 3 and
4) having turned hostile and categorically denied recovery in
their presence, the entire case rests solely upon the testimony of
interested police witnesses. The independent witnesses have not
supported the recovery of ganja from the possession of appellant
in their presence which is fatal to the prosecution. It is further
submitted that there are material contradictions in the
prosecution evidence regarding the manner of search,
preparation of seizure list, colour and description of the packet,
place of preparation of documents, and delay in dispatch of the
sample to F.S.L. which create serious doubt about the alleged
recovery. It is also submitted that the seized contraband was
never produced before the court during trial so as to connect the
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same with the sample sent to the Forensic Science Laboratory
and there is no explanation for this failure to produce the same.
There is no material produced in this trial, apart from the
interested testimonies of the police officers, to show that the
ganja was seized from the possession of the appellant or the
samples sent to the Forensic Science Laboratory was taken
from the the ganja seized from the possession of the appellant.
He further submitted that there is no reliable evidence regarding
proper sampling, safe custody, and transmission of the sample,
thereby breaking the chain of custody.
10. It is further submitted by learned counsel for
appellant that though the alleged recovery of 11.5 kg Ganja is
said to have been made from the possession of the appellant on
18.08.2010 but the appellant was produced before the court after
two days on 20.08.2010 which crates doubt in the prosecution
case. He has pointed out that the deposition of prosecution
witnesses contradicts the prosecution case. He has submitted
that P.W.-2 in para 7 says that the colour of the packet was
plain(white) whereas the informant in F.I.R says that the colour
of the packet was orange. He has pointed out that P.W.-5
Manoranjan Kumar Singh admitted in his cross-examination that
written proceeding relating to seizure was made in the police
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station and P.W.-6 (I.O) deposed that he did not weigh the
quantity of the sample. The quantity of sample has not been
mentioned either in the case diary or in deposition of the
witnesses. Further he submitted that F.S.L Report was sent to the
court after more than a year which is too doubtful to be believed
and the seizure list which bears P.S. Case No. 198 of 2010
denotes that it was prepared at police station and not at spot. He
next submitted that the appellant has no criminal antecedent and
in this case he has languished in jail custody for more than 2
years and
11. Learned counsel further submitted that the
prosecution failed to establish strict compliance with the
procedural safeguards contemplated under the NDPS Act, which
being a stringent statute carrying severe punishment, mandates
scrupulous adherence to statutory requirements. In support
thereof, learned counsel put his reliance on the judgment of the
Hon’ble Supreme Court in Mangilal v. State of Madhya
Pradesh, reported in (2023) 19 SCC 364 wherein it has been
held that in cases under the NDPS Act, the prosecution must
prove compliance of mandatory provisions beyond reasonable
doubt and any serious infirmity in seizure, sampling, or custody
of the contraband would vitiate the conviction. It is further
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submitted that when independent witnesses have not supported
the prosecution and material discrepancies exist regarding
recovery and handling of the seized article, the benefit of doubt
must necessarily go to the appellant.
12. It is, therefore, submitted that the learned Trial
Court failed to properly appreciate the evidence in its correct
perspective and erroneously convicted the appellant despite
substantial procedural lapses and inconsistencies. Lastly, learned
counsel submitted that the impugned judgment of conviction
and order of sentence be set aside and the appellant be acquitted
of the charge.
13. Per contra, learned APP for the State supported
the impugned judgment and submitted that the learned Trial
Court has rightly appreciated the oral and documentary evidence
on record and has correctly convicted the appellant. It is
submitted that the recovery of 11 Kg. 500 grams of ganja from
the conscious possession of the appellant has been consistently
proved by the informant (P.W.1) and other police officials (P.Ws.
2, 5 and 6), whose testimonies remained intact and trustworthy
despite lengthy cross-examination. It is submitted that merely
because the independent seizure witnesses turned hostile, the
prosecution case does not become doubtful, particularly when
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they have admitted their signatures on the seizure list and there
is no suggestion of prior enmity between the police officials and
the appellant. It is further submitted that there was no prior
information with the police and the recovery was effected during
routine patrolling, therefore, the rigours of Section 50 of the
NDPS Act were not attracted, as the search was of a bag carried
by the appellant and not of his person. The FSL Report, duly
proved and exhibited, conclusively establishes that the seized
substance was ganja, and the same corroborates the ocular
testimony of the prosecution witnesses. Moreover, learned APP
submitted that alleged discrepancies pointed out by the appellant
are minor in nature and do not go to the root of the prosecution
case so as to discredit the otherwise cogent and reliable
evidence.
14. Learned APP, thus, submitted that the
prosecution has successfully established the charge under
Section 20 (b) (ii) (B) of the NDPS Act beyond all reasonable
doubt and that the sentence awarded is commensurate with the
gravity of the offence. It is lastly submitted that the appeal being
devoid of merit be dismissed and the judgment of conviction
and order of sentence be affirmed.
15. I have carefully perused the records and
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considered the submissions advanced by the learned counsel for
the parties. At this stage, I would like to appreciate relevant
extract of the entire evidence led by the prosecution before the
learned Trial Court.
(i) P.W.-1, Amlesh Kumar, who is informant,
deposed that on 18.08.2010 he was posted as Assistant Sub-
Inspector at Jakkanpur Police Station. On that day, during night
patrolling, he was conducting checking at the eastern end of
Bhikhari Thakur Pool. At about 11:00 P.M., he was present
along with Hawaldar Shaukat Ali and Constable Manoranjan
Kumar and was engaged in routine checking. In the meantime,
he noticed two persons approaching from the northern end of the
bridge. One of them was carrying a jhola in his hand. On seeing
the police party, both persons attempted to flee. Thereafter, he
along with the accompanying police personnel chased them and
succeeded in apprehending one person along with the plastic
bag. On interrogation, the apprehended person disclosed his
name as Rishi Kumar, who has been identified in Court. In
presence of two independent witnesses, namely Sunny Rai and
Pappu Kumar, the plastic bag was searched. Upon search, an
orange-coloured plastic packet containing ganja was recovered
from the bag, on which “P.K.” and “Pappu Kumar” were
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written. He has further stated that the recovered ganja was
seized and a seizure list was prepared. The total weight of the
ganja was found to be 11 kilograms and 500 grams. The seizure
list was prepared in his handwriting and bears his signature as
well as the signatures of the witnesses. He further stated that he
submitted his written statement to the Officer-in-Charge of the
police station.
In his cross-examination, P.W.-1 admitted that one
of the seizure witnesses is Pappu Kumar and that Pappu Kumar
may also be called “P.K.”, but he has denied the suggestion that
the bag belonged to the said Pappu Kumar. He has further
denied the suggestion that nothing was recovered from the
possession of the accused Rishi Kumar and that the recovery
was actually made from Pappu Kumar and the appellant has
been falsely implicated in order to save Pappu Kumar.
(ii) P.W.-2, Shaukat Ali, has deposed that on
18.08.2010 he was posted at Jakkanpur Police Station. On that
day, he had proceeded on night patrolling duty along with A.S.I.
Amlesh Kumar and Constable Manoranjan Kumar. He further
stated that during the course of patrolling, when they reached the
eastern end of Bhikhari Thakur Pool, they noticed two persons
approaching. On seeing the police party, both persons started
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running. They chased them and succeeded in apprehending one
person. He has further deposed that from the possession of the
apprehended person, a plastic bag was recovered, which on
search was found to contain approximately 11 to 11.5 kilograms
of ganja. The apprehended person disclosed his name as Rishi
Kumar (appellant). At the time of search, two independent
witnesses were present and the seizure list was prepared at the
place of occurrence itself.
In cross-examination, P.W.-2 deposed that after
apprehending the appellant and before conducting the search,
Rajesh Khalifa (I.O.) was called from the police station. He has
further stated that the recovered packet was small and white in
colour and he did not see what was written on the jhola .
(iii) P.Ws. 3 and 4 who are seizure list witnesses,
have turned hostile and stated that police did not recover
anything from anyone in their presence. However, both the
witnesses have admitted their signature on the seizure list.
(iv) P.W.-5, Manoranjan Kumar Singh, who is a
constable, has deposed that on 18.08.2010 he was on night
patrolling duty along with A.S.I. Amlesh Kumar and other
police personnel. During the course of checking, when they
reached near Bhikhari Thakur Pool, he noticed two persons
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coming across the bridge. Out of them, one person was carrying
a jhola in his hand. On seeing the police party, both persons
started fleeing away. However, near Lucky Medical Hall, one
person was apprehended while still holding the jhola in his
hand. He has further deposed that the apprehended person
disclosed his name as Rishi Kumar. Upon search of the jhola,
ganja was recovered and the same was seized. He has supported
the preparation of the seizure list and has identified the accused
in Court.
In his cross-examination, he has admitted that the
jhola bore the mark “P.K.” and “Pappu Kumar.” He has further
admitted that the written proceedings relating to seizure were
prepared at the police station.
(v) P.W.-6, who is the Investigating Officer of the
case, has deposed that the place of occurrence is situated in front
of Lucky Medical Hall near Bhikhari Thakur Pool. He has
described the place of occurrence in paragraph 2 of his
deposition. He has further deposed that 11 kilograms and 500
grams of ganja was recovered from the possession of the
accused. He has also stated that, with the permission of the
learned Sessions Judge, a sample of the seized ganja was sent to
the Forensic Science Laboratory for chemical examination.
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During cross-examination, he has stated that the
weight of the sample is not mentioned in the case diary. He has
further admitted that the weight of ganja was about 11.5
kilogram, but the measurement of weight was not done. He
further stated that the recovered ganja was sent for chemical
examination in a container (dibba). He admitted that appellant
was kept whole day in police station and was sent to the Court
on 20.08.2010.
16. In view of the rival submissions advanced on
behalf of the parties and upon appreciation of the evidence on
record, only question that falls for consideration before this
Court in the instant appeal is “whether the learned Trial Court
committed any error in holding the appellant herein guilty of the
offence under Section 20 (b) (ii) (B) of the NDPS Act vide the
impugned judgment of conviction and order of sentence,
warranting interference by this Court ?”
17. At this stage, it is pertinent to examine apropos
whether the prosecution has established the conscious
possession of contraband beyond reasonable doubt and in strict
conformity with the safeguards contemplated under the NDPS
Act. It is well settled that the NDPS Act being a stringent penal
statute, the procedural safeguards provided therein must be
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scrupulously complied with and the burden upon the prosecution
is correspondingly heavy. The Hon’ble Supreme Court in
Mangilal v. State of Madhya Pradesh (supra) has reiterated that
in cases under the NDPS Act, the prosecution must prove
beyond reasonable doubt not only the recovery but also strict
adherence to statutory requirements relating to seizure,
sampling, and safe custody of the seized article, failing which
the benefit of doubt must enure to the accused.
18. In the present case, the seizure witnesses (P.Ws.
3 and 4), though admitting their signatures on the seizure list,
have categorically denied recovery of ganja in their presence
and were declared hostile. They have stated that nothing was
recovered from their presence and their signature was taken on
plain paper at police station on saying of Darogajee. The
panchas have turned hostile so the panchnama is nothing but a
document written by the police concerned. Thus, the recovery
rests solely upon the testimony of police officials. P.W-5 also
deposed that the jhola was not opened at spot rather it was
opened at police station. Though conviction can be based on the
testimony of official witnesses, the same must inspire
confidence and be free from material contradictions. There is
serious doubt with respect to the seizure. A careful scrutiny of
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the record reveals discrepancies regarding the place of
preparation of seizure list, absence of clarity about the weight
and sealing of the sample, non-production of the material exhibit
during trial, and admitted preparation of documents at the police
station. The Investigating Officer has not clearly deposed
regarding the quantity of sample drawn, the manner of sealing,
and the safe custody of the seized article.
19. The The Hon’ble Supreme Court in Jitendra
and Anr. v. State of Madhya Pradesh, reported in (2004) 10
SCC 562 has held with respect to the affect of non-production of
the seized contraband, as under:
“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
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the accused. Although the High Court
noticed the fact that the charas and ganja
alleged to have been seized from the custody
of the accused had neither been produced in
the court, nor marked as articles, which
ought to have been done, the High Court
brushed aside the contention by observing
that it would not vitiate the conviction as it
had been proved that the samples were sent
to the Chemical Examiner in a properly
sealed condition and those were found to be
charas and ganja. The High Court observed,
“non-production of these commodities before
the court is not fatal to the prosecution. The
defence also did not insist during the trial
that these commodities should be produced”.
The High Court relied on Section 465 CrPC
to hold that non-production of the material
object was a mere procedural irregularity
and did not cause prejudice to the accused.
6. In our view, the view taken by the High
Court is unsustainable. In the trial it was
necessary for the prosecution to establish by
cogent evidence that the alleged quantities of
charas and ganja were seized from the
possession of the accused. 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. The suggestion made by the
defence in the cross-examination is worthy of
notice. It was suggested to the prosecution
witnesses that the landlady of the house in
collusion with the police had lodged a false
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case only for evicting the accused from the
house in which they were living. Finally, we
notice that the investigating officer was also
not examined. Against this background, to
say that, despite the panch witnesses having
turned hostile, the non-examination of the
investigating officer and non-production of
the seized drugs, the conviction under the
NDPS Act can still be sustained, is far-
fetched.”
(emphasis supplied)
20. Moreover, such lapses assume significance in
view of the law laid down by the Hon’ble Supreme Court in
State of Rajasthan v. Gurmail Singh, reported in (2005) 3 SCC
59, wherein it has been held that failure to establish safe custody
and proper link evidence creates serious doubt about the
integrity of the seized contraband.
21. Further, though the prosecution contended that
Section 50 of the NDPS Act was not attracted as the search was
of a bag and not of the person, the surrounding circumstances
must still establish fairness and transparency in the search
procedure. The Hon’ble Supreme Court in State of Punjab v.
Baldev Singh, reported in (1999) 6 SCC 172 emphasized that
procedural safeguards under the NDPS Act are intended to
ensure credibility of the recovery.
22. Most of the offenses under NDPS Act carry
stringent punishment and therefore, the prescribed procedure has
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to be meticulously followed which are minimum safeguard
available to an accused against the possibility of false
involvement. The Hon’ble Supreme Court in State of Rajasthan
v. Paramanand and Ano. reported in (2014) 5 SCC 345 in para
15 held that:
“15. ………if merely a bag carried by a
person is searched without there being any
search of his person, Section 50 of the NDPS
Act will have no application.”
23. The Hon’ble Supreme Court in Ranjan Kumar
Chandha v. The State of Himachal Pradesh reported in 2023
SCC OnLine SC 1262 held in para 89 as under :
“89. The larger Bench also considered the
dictionary meanings of the word “person”
and held that any article like a bag,
briefcase or container cannot under any
circumstance be considered as a person or a
part thereof. This Court stated that one of the
tests could be, where in the process of search
the human body comes into contact or shall
have to be touched by the person carrying
out the search. If that be so, then it will be
search of a person. However, this Court was
quick to clarify that a bag or briefcase or
any such article cannot be interpreted to
mean a person. It was held as under:—
“10. We are not concerned here with
the wide definition of the word “person”,
which in the legal world includes
corporations, associations or body of
individuals as factually in these type of cases
search of their premises can be done and not
of their person. Having regard to the scheme
of the Act and the context in which it has
been used in the Section it naturally means a
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human being or a living individual unit and
not an artificial person. The word has to be
understood in a broad common sense
manner and, therefore, not a naked or nude
body of a human being but the manner in
which a normal human being will move
about in a civilized society.Therefore, the
most appropriate meaning of the word
“person” appears to be - “the body of a
human being as presented to public view
usually with its appropriate coverings and
clothings”. In a civilized society appropriate
coverings and clothings are considered
absolutely essential and no sane human
being comes in the gaze of others without
appropriate coverings and clothings. The
appropriate coverings will include footwear
also as normally it is considered an essential
article to be worn while moving outside
one's home. Such appropriate coverings or
clothings or footwear, after being worn,
move along with the human body without
any appreciable or extra effort. Once worn,
they would not normally get detached from
the body of the human being unless some
specific effort in that direction is made. For
interpreting the provision, rare cases of some
religious monks and sages, who, according
to the tenets of their religious belief do not
cover their body with clothings, are not to be
taken notice of. Therefore, the word
“person” would mean a human being with
appropriate coverings and clothings and
also footwear.
11.A bag, briefcase or any such article or
container, etc. can, under no circumstances,
be treated as body of a human being. They
are given a separate name and are
identifiable as such.They cannot even
remotely be treated to be part of the body of
a human being. Depending upon the physical
capacity of a person, he may carry any
number of items like a bag, a briefcase, a
suitcase, a tin box, a thaila, a jhola, a gathri,
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a holdall, a carton, etc. of varying size,
dimension or weight. However, while
carrying or moving along with them, some
extra effort or energy would be required.
They would have to be carried either by the
hand or hung on the shoulder or back or
placed on the head. In common parlance it
would be said that a person is carrying a
particular article, specifying the manner in
which it was carried like hand, shoulder,
back or head, etc. Therefore, it is not
possible to include these articles within the
ambit of the word “person” occurring in
Section 50 of the Act.
12.An incriminating article can be kept
concealed in the body or clothings or
coverings in different manner or in the
footwear. While making a search of such type
of articles, which have been kept so
concealed, it will certainly come within the
ambit of the word “search of person”. One
of the tests, which can be applied is, where in
the process of search the human body comes
into contact or shall have to be touched by
the person carrying out the search, it will be
search of a person. Some indication of this is
provided by Sub-section (4) of Section 50 of
the Act, which provides that no female shall
be searched by anyone excepting a female.
The legislature has consciously made this
provision as while conducting search of a
female, her body may come in contact or
may need to be touched and, therefore, it
should be done only by a female. In the case
of a bag, briefcase or any such article or
container, etc., they would not normally
move along with the body of the human
being unless some extra or special effort is
made. Either they have to be carried in hand
or hung on the shoulder or back or placed
on the head. They can be easily and in no
time placed away from the body of the
carrier. In order to make a search of such
type of objects, the body of the carrier will
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not come in contact of the person conducting
the search. Such objects cannot be said to be
inextricably connected with the person,
namely, the body of the human being.
Inextricable means incapable of being
disentangled or untied or forming a maze or
tangle from which it is impossible to get
free.”
(Emphasis supplied)”
24. The Hon’ble Supreme Court in The State of
Kerla v. Prabhu reported in 2024 SCC OnLine SC 5300 held in
para 7 as under:
“7. Thus, it is evident that the exposition of
law on the question regarding the
requirement of compliance with Section 50 of
the NDPS Act is no more res integra and this
Court in unambiguous term held that if the
recovery was not from the person and
whereas from a bag carried by him, the
procedure formalities prescribed under
Section 50 of the NDPS Act was not required
to be complied with. It is to be noted that in
the case on hand also the evidence
indisputably established that the recovery of
the contraband was from the bag which was
being carried by the respondent.”
25. In the present case, there is nothing to indicate
that search of the person of the accused was also undertaken
along with the bag which he was carrying in his hand.
26. The Hon’ble Supreme Court in Narcotics
Control Bureau v. Kashif reported in (2024) 11 SCC 372 has
discussed with regard to lapse of Section 52-A of NDPS Act and
relevancy of primary evidence in para 43, which is as under :
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“43.Though it is true that the inventory
certified, photographs taken and the list of
samples drawn under sub-section (2) has to
be treated by the court as primary evidence
in view of sub-section (3), nonetheless the
documents like panchnama, seizure memo,
arrest memo, etc. prepared by the
investigating officer on the spot or during
the course of investigation are also primary
evidence within the meaning of Section 62 of
the Evidence Act, carrying the same
evidentiary value as any other primary
evidence. Such primary evidence with regard
to search and seizure of the contraband
substance could not be overlooked merely
because some lapse or non-compliance is
found of Section 52-A of the Act.”
27. There is no material on record to prove that the
Magistrate had certified the inventory seized or the list of
sample so drawn. The Hon’ble Supreme Court in Yusuf alias
Asif v. State reported in (2024) 14 SCC 217 has held under :
“14. In Mohanlal [Union of India v.
Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC
(Cri) 864] case, the Supreme Court while
dealing with Section 52-A of the NDPS Act
clearly laid down that it is manifest from the
said provision that upon seizure of the
contraband, it has to be forwarded either to
the officer-in-charge of the nearest police
station or to the officer empowered under
Section 53 who is obliged to prepare an
inventory of the seized contraband and then
to make an application to the Magistrate for
the purposes of getting its correctness
certified. It has been further laid down that
the samples drawn in the presence of the
Magistrate and the list thereof on being
certified alone would constitute primary
evidence for the purposes of the trial.”
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28. It is pertinent to note that under NDPS Act
provisions like Sections 21, 23, 52A, timely FSL testing is vital
for narcotic confirmation. In the present case, the unexplained
delay of over 9-days contrary to the legitimate delay in
forwarding the sample to the FSL also casts a shadow of doubt
upon the prosecution’s case. On the aforesaid pretext, the
unexplained delay in forwarding the sample to the FSL and non-
production of the bulk contraband during trial weaken the
prosecution case, particularly when independent witnesses have
not supported the recovery. Moreover, the inconsistencies
pointed out in the description of the packet and the absence of
clear evidence regarding weighing of the contraband further
create doubt. In criminal jurisprudence, especially under the
NDPS Act, suspicion, however strong, cannot substitute proof
beyond reasonable doubt. Therefore, upon cumulative
consideration of the evidentiary deficiencies, inconsistencies,
absence of reliable independent corroboration, and non-
establishment of an unbroken chain of custody, this Court finds
that the prosecution has not been able to prove the charge
against the appellant beyond reasonable doubt in the strict sense
required under the NDPS Act. The appellant is, therefore,
entitled to the benefit of doubt.
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29. In view of the discussions and findings
recorded hereinabove, this Court is of the considered opinion
that the prosecution has failed to establish the charge under
Section 20 (b) (ii) (B) of the NDPS Act against the appellant
beyond reasonable doubt. The learned Trial Court, while passing
the impugned judgment of conviction dated 12.06.2012 and
order of sentence dated 14.06.2012 in Special Case No. 28 of
2010, did not properly appreciate the material inconsistencies
and the legal infirmities touching the recovery, sampling, and
safe custody of the alleged contraband. The impugned judgment
is liable to be set aside and the appellant to be acquitted by
rendering the benefit of doubt.
30. Resultantly, the judgment of conviction and
order of sentence passed by the learned Additional Sessions
Judge XI, Patna in Special Case No. 28 of 2010 are hereby set
aside. The appellant, Rishi Kumar, is acquitted of the charge
under Section 20 (b) (ii) (B) of the NDPS Act by extending to
him the benefit of doubt. The appellant, has already undergone
more than 2 years of imprisonment out of 5 years awarded to
him. He is on bail. Therefore, his bail bond, if any, shall stand
discharged.
31. Accordingly, the present appeal is allowed.
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32. Let the Trial Court Records be transmitted back
forthwith along with a copy of this judgment for information
and necessary compliance.
(Sunil Dutta Mishra, J)
utkarsh/-
AFR/NAFR NAFR
CAV DATE 10.02.2026
Uploading Date 25.02.2026
Transmission Date 25.02.2026
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