Patna High Court

Birja PrasadversusThe Union Of India

Decided: 23 June 2026
Disposal: DISMISSED
Bench: PURNENDU SINGH

Holding

The conviction under Section 20(b)(ii)(C) of the NDPS Act was upheld because the prosecution failed to prove conscious possession beyond reasonable doubt, and the procedural deficiencies in seizure and custody were not fatal to the trial court’s findings.

Summary

The appellant, Birja Prasad, was arrested after customs officials intercepted a bus and allegedly recovered 20 kg of charas, of which 10 kg was said to be in his bag. He was convicted under Section 20(b)(ii)(C) of the NDPS Act and sentenced to ten years’ rigorous imprisonment and a fine of Rs 1 lakh. The appeal challenged the conviction on the grounds that the prosecution failed to prove conscious possession, that the search and seizure did not comply with statutory safeguards under Sections 42, 43 and 52A of the NDPS Act, and that there was a lack of independent corroboration. The High Court examined the inconsistencies in the official witnesses’ testimonies, the absence of a proper inventory and magistrate‑supervised sampling, and the requirement of establishing possession before invoking Sections 35 and 54. Relying on precedents that demand cogent evidence of possession and proper chain of custody, the Court held that the prosecution’s case was insufficient to prove possession beyond reasonable doubt. Consequently, the Court dismissed the appeal and ordered the appellant to be taken into custody.

Issues considered

Whether the prosecution established conscious and exclusive possession of the contraband by the appellant under the NDPS Act.
Whether the search and seizure conducted under Section 43 of the NDPS Act complied with the procedural safeguards of Sections 42 and 52A.
Whether the statutory presumptions under Sections 35 and 54 of the NDPS Act can be invoked in the absence of independent corroboration.
Whether the failure to produce the seized contraband and to maintain an unbroken chain of custody warrants reversal of the conviction.

Legislation cited

Criminal Procedure Code — s. 100, 374(2), 389(1), 4(2)
Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(C), 35, 42, 43, 52A, 54

Subjects

NDPS Act
conscious possession
constructive possession
search and seizure
Section 43
Section 52A
statutory presumption
burden of proof
drug trafficking
appellate review

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.681 of 2012
Arising Out of PS. Case No.-132 Year-2007 Thana- MUZFFARPUR COMPLAINT CASE
District- Muzaffarpur
======================================================
Birja Prasad ,S/O Sri Sahdeo Prasad, Resident Of Village Agarwa, P.S- Jitna
District- East Champaran.
... ... Appellant/s
Versus
The Union of India ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Hemendra Prasad Singh, Sr. Advocate
Dr. Anurag Krishan Tiwary, Advocate
Mr. Anil Kumar, Advocate
For the Respondent/s : Mr. Amit Pandey, Sr. S.C.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 23-06-2026
Heard Mr. Hemendra Prasad Singh, learned senior

counsel assisted by Dr. Anurag Krishan Tiwary, learned counsel

appearing on behalf of the appellant and Mr. Amit pandey,

learned counsel for the Union of India.

2. The present appeal has been filed under Section

374(2) r/w Section 389 (1) of the Code of Criminal Procedure

challenging the judgment of conviction dated 28.05.2012 and

order of sentence dated 30.05.2012 passed by the learned 6 th

Additional Sessions Judge, Muzzafarpur, in NDPS Case No.

132/07-08, S.T. 3/08, whereby and whereunder, the appellant

has been convicted for the offence punishable under Sections 20

(b) (ii) C of the NDPS Act and have been sentenced to undergo

Rigorous Imprisonment for 10 years and fine of Rs. 1 lakh.
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BRIEF FACTS OF THE CASE

3. The prosecution case, in brief, is that on 29.12.2007

the customs officials under the supervision of Dinesh Kumar,

Superintendent, Customs (P) Division, Muzaffarpur, conducted

preventive checking near Kanti Thermal Power Station situated

on N.H.-28. During the course of checking, a Basant Bus

coming from Dhaka towards Muzaffarpur was intercepted and

searched. The accused persons, namely Birja Prasad, Smt.

Rambani Khatun and Rozidan Khatun, were found sitting

together on a long seat of the bus. Upon search, total 20 Kg. net

charas was allegedly recovered from their possession, out of

which 10 Kg. was recovered from the bag of accused Birja

Prasad and 5 Kg. each from accused Rambani Khatun and

Rozidan Khatun. The prosecution further alleged that the two

female accused, who were of Nepali origin, were travelling

under the guidance of accused Birja Prasad and were concealing

the contraband in specially designed cloth bags wrapped around

their waists. The seized contraband was allegedly intended to be

delivered at Patna to one Sanjai, resident of Khodaganj, District

Kalaiya (Nepal), who was stated to be known to accused Birja

Prasad. The recovered contraband was seized under Section 43

of the N.D.P.S. Act in presence of independent witnesses and the
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accused persons were arrested. Thereafter, samples were drawn

and sent for chemical examination and as per the report of the

Chemical Examiner, the samples tested positive for resinous

extract of plant Cannabis Sativa (Charas). On the basis of the

complaint instituted by the prosecution, cognizance of the

offence was taken on 15.05.2008 by the learned Sessions Judge,

Muzaffarpur and the charges were framed against the accused

persons on 21.01.2009, to which they pleaded not guilty and

claimed to be tried. The trial proceeded and all the accused were

convicted under Sections 20 (b)(ii)(C) of the NDPS Act.

ARGUMENT ON BEHALF OF THE APPELLANT

4. Learned Senior counsel appearing on behalf of the

appellant submitted that the impugned judgment of conviction

and order of sentence passed by the learned Trial Court are

wholly illegal, arbitrary and contrary to the facts and evidence

available on the record. It has been contended that the

prosecution has miserably failed to establish the alleged

recovery from the conscious and exclusive possession of the

appellant beyond all reasonable doubts. The learned counsel

emphasised that the alleged recovery was made from a bag and

not from the physical possession of the appellant and, therefore,

the mandatory requirement of proving conscious possession has
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not been satisfied. It was also argued that the prosecution

witnesses have made contradictory and inconsistent statements

with regard to the alleged search, seizure and recovery and such

contradictions go to the root of the prosecution case. The

independent witness, namely PW7, who is the khalasi of the

bus, has not fully supported the prosecution story and there is no

reliable independent corroboration of the alleged seizure.

5. It was further submitted that all the witnesses

examined by the prosecution, except PW7, are official witnesses

and no independent witness from the locality or from among the

passengers of the bus was examined, though the alleged seizure

was made at a public place. The learned counsel contended that

the mandatory provisions of the N.D.P.S. Act relating to fair

search and seizure were not complied with in their true spirit

and the prosecution failed to establish an unbroken chain

regarding seizure, sealing and safe custody of the alleged

contraband. It was also submitted that the prosecution has failed

to produce any cogent material to prove that the appellant had

any nexus with the co-convicts or with the alleged person at

Patna to whom the contraband was allegedly to be delivered.

The entire allegation regarding complicity of the appellant is

based on the alleged statement of the co-accused taken in
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custody that appellant is the one, who had instructed to deliver

the contraband, which is based merely on suspicion and not on

any legally admissible evidence.

6. Learned Senior counsel had also submitted that the

learned Trial Court failed to appreciate the evidence in its proper

perspective and without considering the material contradictions

appearing in the evidence of the prosecution witnesses no. 1, 3

and 6. It was also informed that the appellant remained on bail

throughout the period of trial and never misused the privilege

granted to him. On the above ground, learned counsel seeks that

the impugned judgment of conviction and order of sentence

dated 28.05.2012 and 30.05.2012 respectively be quashed and

set aside and the appellant be acquitted of the charges levelled

against him.

ARGUMENT ON BEHALF OF THE RESPONDENTS

7. Per contra, learned senior standing counsel for the

Union of India 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 as the offences alleged against the appellants appears to

be serious in nature and also constitutes cognizable offence.
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8. Learned counsel further submitted that the

authorities in exercise of power under Section 43, which refers

to the power of seizure and arrest in public place by the officers

mentioned in Section 42. He further submitted that nowhere it is

provided in Section 43 of the Act that the procedure

contemplated under Section 42 has to be followed.

9. He submitted that the Hon'ble Supreme Court in

State of Haryana vs. Jarnail Singh & Ors. reported in (2004) 5

SCC 188 clearly held that "Section 42 and 43 contemplate two

different situations. Section 42 contemplates entry into and

search of any building, conveyance or enclosed place, while

Section 43 contemplates a seizure made in any public place or

in transit. If seizure is made under Section 42 between sunset

and sunrise, the requirement of the proviso thereto has to be

complied with. There is no such proviso in Section 43 of the Act

and, therefore, if a pubic conveyance is searched in a public

place, the Officer making the search is not required to record his

satisfaction as contemplated by the proviso to Section 42 of the

NDPS Act for searching the vehicle between sunset and the

sunrise. In the instant case, the tanker was moving on the public

highway when it was stopped and searched. Section 43,

therefore, clearly applied to the facts of the case. Thus there was
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no requirement of the Officer conducting the search to record

the grounds of his belief as contemplated by the proviso to

Section 42. More so, when Superintendent of Police was also a

member of the searching party.

10. He further submitted that the admission of the co-

accused is sufficient proof that the appellant was in conscious

possession of the alleged contraband Charas. No interference is

required with the judgment passed by the learned trial Court.

ANALYSIS AND CONCLUSION

11. Heard the parties.

12. 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.

13. 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 Section 20 (b)(ii) (C) of

NDPS Act

14. During the trial, the prosecution has examined

altogether seven witnesses, namely:

(i) (P.W.-1)- Dinesh Kumar

(ii) (P.W.-2)- Lal deo Rajak
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(iii) (P.W.-3)- Vinod Prasad Singh

(iv) (P.W.-4) - Meena Devi

(v) (P.W.-5)- Shankar Prasad Rai

(vi) (P.W.-6)- Sahadeo Choudhary

vii) (P.W.-7).- Umesh singh

15. From the perusal of the records, the statement

of prosecution witnesses are as follows:

(i) P.W.1 –P.W.1 Dinesh Kumar, Superintendent,

Customs (P) Division, Muzaffarpur and informant of the case,

deposed that on 29.12.2007 he along with the customs officials

conducted preventive checking near Kanti Thermal Power

Station situated on N.H.-28. During checking, Shit-Basant Bus

coming from Dhaka was intercepted and searched wherein the

accused persons were found sitting together from whose

possession charas was recovered. He has proved the seizure list,

panchnama, voluntary statements and other relevant documents.

In his cross-examination, he admitted that he had not entered

into the bus during the search and had not personally witnessed

the charas tied around the waists of accused Rambani Khatun

and Rozidan Khatun. He further admitted that the bag alleged to

contain charas was not recovered in his direct presence from the

person of accused Birja Prasad.
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(ii) P.W.2 Laldeo Razak, a member of the raiding

party, supported the prosecution case regarding interception of

the bus, search and recovery of charas from the accused persons.

He deposed that accused Birja Prasad was carrying a bag

containing charas and that the female accused were concealing

charas around their waists. He further stated that the accused

persons were travelling together and the seized articles were

properly sealed and seized. In cross-examination, he stated that

the bag was kept under the seat of the bus and admitted certain

contradictions regarding the manner of search and seizure.

(iii) P.W.3 Vinod Prasad Singh, another customs

official and member of the raiding party, corroborated the

prosecution version regarding the checking operation and

seizure of charas from the accused persons. He stated that the

raiding party started its work at about 8/9 A.M. and the search of

the bus was conducted at about 9/10 P.M. He proved his

signature on the seizure related documents. In cross-

examination, he admitted that he had not entered into the bus

during the search and also admitted that in his previous

statement he had stated regarding receipt of secret information

by the customs officials.

(iv) P.W.4 Meena Devi, a lady customs official and
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member of the raiding team, supported the prosecution case and

specifically stated that Superintendent Dinesh Kumar himself

searched the bus. She deposed that the raiding party arrived at

Kanti Railway Station at about 6/7 P.M., hired a Bolero vehicle

and thereafter proceeded to the place of occurrence. She further

stated that the search of the bus was conducted at about 9.45

P.M. and the female accused were found concealing charas

around their waists. In cross-examination, she admitted that the

customs officials had received secret information regarding

transportation of contraband but could not disclose the exact

details of such information.

(v) P.W.5 Shanker Prasad Rai, another official witness

and member of the raiding party, deposed regarding preventive

checking, interception of the bus and seizure of charas from the

accused persons. He stated that the bus was searched during the

night hours. In cross-examination, he admitted that he had not

witnessed actual recovery of charas from the female accused

and had only seen the bag alleged to be in possession of accused

Birja Prasad. He further admitted that he had not entered into

the bus during the course of search.

(vi) P.W.6 - Sahadeo Choudhary, also a customs

official and member of the raiding party, supported the
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prosecution case regarding seizure of contraband from the

accused persons. However, he stated that the place of

occurrence was near Motipur and not Kanti Thermal Power

Station. He further deposed that after search, Laldeo Razak

came out of the bus along with the accused persons and

informed them that charas had been recovered from their

possession. In cross-examination, he admitted that he himself

had not entered into the bus during search and had not

personally witnessed the actual recovery.

(vii) P.W.7 - Umesh Singh, khalasi of the bus, was

examined as an independent witness. He admitted his signature

on the seizure list but stated that his signature had been obtained

under duress and that he had not witnessed the actual seizure or

recovery. Though he did not fully support the prosecution case,

he admitted that he was the khalasi of the bus in question, which

according to the prosecution corroborated the fact that the bus

had been intercepted and searched by the customs officials.

16. 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.
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The question which arises for consideration is

whether the conviction of the appellant under Section 20(b)(ii)

bag containing the Narcotics was lying under the seat of the

appellant and on the statement attributed to the co-accused that

the appellant had engaged them for transportation of the

contraband and these circumstances are sufficient to establish

conscious possession of the contraband by the appellant?

17. Conviction is under Sections 20(b)(ii) (C) of the

NDPS Act. For the sake of convenience and better appreciation

of the facts, the above provision inter alia reproduced 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
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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.

18. The provision of Section 4(2) of the Code of

Criminal Procedure, 1973, mandates that offences under special

statutes are to be investigated and tried in accordance with the

procedure prescribed under the Cr.P.C., unless there is a specific

contrary provision in the special law.

19. The search and seizure, therefore, rests

predominantly on the testimony of official witnesses and same

cannot be discarded solely on that ground, however, it requires

careful scrutiny and corroboration in view of their official

capacity and involvement in the investigation.

20. The Hon’ble Supreme Court in case of Anil @

Andya Sadashiv Nandoskar vs. State of Maharashtra, (1996) 2

SCC 589, has held that police personnel are competent

witnesses and their testimony cannot be rejected merely because

of their official status; however, as a rule of prudence, such
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evidence must be examined with greater caution, particularly

where independent corroboration is lacking. In the facts of the

present case, in the absence of reliable independent witnesses

and in view of the inconsistencies emerging in the prosecution

evidence, the procedural safeguards under Section 100 Cr.P.C.

The obvious reason behind this provision is to inject fair-play in

the process of investigation.

21. Section 43 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 empowers the officers of the

departments specified under Section 42 of the Act to conduct

search, seizure and arrest in public places or while the

contraband is in transit. The provision authorizes such officer,

upon having reason to believe that an offence punishable under

the Act has been committed, to seize any narcotic drug,

psychotropic substance or controlled substance found in a public

place. The power of seizure also extends to any animal,

conveyance, article, document or other material which may be

liable to confiscation or which may furnish evidence regarding

the commission of an offence under the Act, including evidence

relating to illegally acquired property liable for seizure, freezing

or forfeiture under Chapter V-A of the Act.

22. Further, clause (b) of Section 43 empowers the
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authorized officer to detain and search any person in a public

place whom he has reason to believe has committed an offence

under the Act. If, upon such search, any narcotic drug,

psychotropic substance or controlled substance is found in the

possession of such person and the possession appears to be

unlawful, the officer is authorized to arrest such person, as well

as, any other person accompanying him. The expression “reason

to believe” signifies that the officer's action must be founded

upon objective and reasonable grounds and not on mere

suspicion or conjecture.

23. The Explanation appended to Section 43 gives an

expansive meaning to the term “public place” by including

within its ambit public conveyances, hotels, shops and any other

place intended for use by, or accessible to, the general public.

Thus, where recovery is effected from a public place, the search

and seizure are governed by Section 43 rather than Section 42 of

the Act. Unlike Section 42, which deals with search of

buildings, conveyances or enclosed places and requires

compliance with certain procedural safeguards relating to

recording and communication of information, Section 43 applies

to searches conducted in public places and does not attract those

additional requirements. Consequently, if the recovery of
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contraband is made from a place accessible to the public, the

legality of the search and seizure is to be examined in the light

of Section 43 of the NDPS Act and to this extent, I find force in

the argument of the defendant.

24. The present appeal raises a question which lies at

the intersection of the statutory presumptions contained in

Sections 35 and 54 of the NDPS Act and the foundational

requirement that the prosecution must first establish conscious

possession beyond reasonable doubt. For better appreciation of

the case, Sections 35 and 54 of the NDPS Act are reproduced

hereinafter:

“Section 35. Presumption of culpable mental
state.—(1) In any prosecution for an offence under this Act
which requires a culpable mental state of the accused, the
court shall presume the existence of such mental state but it
shall be a defence for the accused to prove the fact that he
had no such mental state with respect to the act charged as
an offence in that prosecution.
Explanation.—In this section “culpable mental
state” includes intention motive, knowledge of a fact and
belief in, or reason to believe, a fact.
(2) For the purpose of this section , a fact is
said to be proved only when the court believes it to exist
beyond a reasonable doubt and not merely when its
existence is established by a preponderance of probability.
Section 54. Presumption from possession of
illicit articles.—In trials under this Act, it may be presumed,
unless and until the contrary is proved, that the accused has
committed an offence under this Act in respect of—
(a) any narcotic drug or psychotropic substance
or controlled substance;
(b) any opium poppy, cannabis plant or coca
plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any
group of utensils specially adopted for the manufacture of
any narcotic drug or psychotropic substance or controlled
substance; or
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(d) any materials which have undergone any
process towards the manufacture of a narcotic drug or
psychotropic substance or controlled substance, or any
residue left of the materials from which any narcotic drug
or psychotropic substance or controlled substance has been
manufactured, for the possession of which he fails to
account satisfactorily].”

25. In case of Rakesh Kumar Raghuvanshi vs The

State Of Madhya Pradesh reported in 2025 INSC 96, the Apex

has held in respect of permission of Section 35 that the

provision mandates that, in any prosecution under the Act, the

Court shall presume the existence of the requisite mental state

on the part of the accused, including intention, knowledge,

motive, belief, or reason to believe, in relation to the acts

constituting the offence. However, the said presumption is

rebuttable, and it is open to the accused to establish, by leading

cogent evidence, that such mental state did not exist. Thus, once

the foundational facts necessary to attract the offence are proved

by the prosecution, the burden shifts upon the accused to rebut

the statutory presumption by demonstrating the absence of

knowledge, intention, or conscious involvement in the alleged

possession or contravention under the Act.

26. Further, the Apex Court held that Section 54 of the

NDPS Act incorporates a rule of evidentiary presumption in

relation to possession of illicit articles. The provision enables
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the Court to presume, unless and until the contrary is proved,

that the accused has committed an offence under the Act if he is

found in possession of any narcotic drug, psychotropic

substance, controlled substance, prohibited plants, apparatus or

materials connected with the manufacture of such substances,

and fails to account for such possession satisfactorily. The

presumption contemplated under Section 54 is, however, not

automatic and becomes operative only after the prosecution

establishes the foundational facts necessary to invoke it,

particularly that the contraband was recovered from the

conscious and exclusive possession of the accused. Once the

prosecution successfully proves conscious possession, the

burden shifts upon the accused to rebut the statutory

presumption by furnishing a lawful and satisfactory explanation

for such possession. In the absence of any acceptable

explanation, the Court may draw the presumption that the

accused has committed the offence punishable under the NDPS

Act.

27. The standard required for sustaining a conviction

under the NDPS Act is far higher. Where two views are possible

on the evidence, the view favourable to the accused must

prevail.
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28. The evidence of the prosecution witnesses though

does not present a consistent account regarding the manner of

search, seizure and recovery of the alleged contraband. While

P.W.4 categorically stated that the informant himself conducted

the search inside the bus, P.W.1 admitted that he had not entered

the bus and had not personally witnessed the alleged recovery

from the female accused. Similarly, P.Ws. 3, 5 and 6 also

admitted that they had not entered the bus and had not witnessed

the actual recovery. The testimony of P.W.2 that the bag

allegedly containing charas was lying beneath the seat of the

bus further creates doubt regarding the conscious and exclusive

possession of accused/appellant Birja Prasad. The prosecution

evidence is also not uniform with respect to the place of

occurrence, as P.W.6 stated that the recovery was made near

Motipur whereas the prosecution case mentions Kanti Thermal

Power Station. Significantly, P.W.7, the sole independent

witness, did not support the prosecution case regarding the

actual seizure and asserted that his signature on the seizure list

had been obtained under duress. In such circumstances, where

the foundational facts relating to search, seizure and recovery

are themselves shrouded in doubt and are sought to be

established primarily through official witnesses whose
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testimonies are not wholly consistent, the Court is required to

scrutinize the prosecution case with greater caution. It is well

settled that in cases under the N.D.P.S. Act, which prescribe

stringent punishments and reverse burdens of proof, the

prosecution must first establish the foundational facts through

cogent, reliable and unimpeachable evidence before any

statutory presumption can be invoked against the accused. The

importance of maintaining the sanctity of the seized contraband

and establishing an unbroken link between the alleged recovery

and the material produced before the Court has also been

repeatedly emphasized by the Hon'ble Supreme Court.

The other discrepancies noticed by this Court in the

judgment of the Trial Court while recording the conviction of

the appellant?"

29. Section 52-A of the NDPS Act provides a

complete statutory mechanism for disposal of seized narcotic

drugs and psychotropic substances and mandates that, upon

seizure, an inventory of the contraband containing full

particulars such as description, quantity, mode of packing and

identifying marks is required to be prepared. It further requires

that the empowered officer shall make an application before the

Magistrate for the purposes of certifying the correctness of such
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inventory, or for taking photographs of the seized articles and

certifying the same, or for drawing representative samples in the

presence of the Magistrate with due certification. The provision

is intended to ensure transparency and to maintain the integrity

of the seized contraband by providing judicial supervision at the

crucial stage of sampling and documentation. Sub-section (4)

further gives statutory recognition to such inventory,

photographs and samples certified by the Magistrate as primary

evidence. In the present case, however, the prosecution has not

been able to establish compliance of the mandatory safeguards

under Section 52A of the Act, particularly with regard to

drawing of samples under the supervision of the Magistrate and

proper certification thereof, thereby casting a serious doubt on

the sanctity of the alleged seizure and subsequent forensic

examination.

30. From the material available on record and the

evidence of witnesses in course of trial, it is admitted that no

narcotic substance was recovered from the person of the

appellant. No article of personal identification belonging to the

appellant was recovered from the bag. The prosecution does not

assert that the appellant was carrying the bag in his hand or on

his person. The conviction is founded substantially on the
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circumstance that the bag was lying beneath the seat of the

appellant and on the statement attributed to the co-accused that

the appellant had engaged them for transportation of the

contraband.

31. In the present case, on careful scrutiny of the

evidence available on record, serious doubts arise regarding due

compliance of the mandatory safeguards prescribed under

Section 52A of the NDPS Act. Further, the procedure relating to

preparation of inventory, drawing of samples in the presence of

Magistrate, and proper chain of custody also appears to be

doubtful. The absence of independent witnesses in support of

seizure and the failure to properly establish conscious

possession of the contraband further weaken the prosecution

case. In view of these infirmities, the prosecution has not been

able to prove its case beyond reasonable doubt against the

appellants under the NDPS Act.

32. The other circumstance which has weighed with

this Court is that after the alleged seizure, the contraband was

stated to have been sealed and handed over to PW-1 Dinesh

Kumar, Superintendent, Customs, Muzaffarpur, who was also

part of the raiding team. However, from the materials on record,

it does not appear that the seized articles were deposited in any
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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designated Malkhana meant for safe custody of narcotics. The

evidence rather indicates that the seized contraband remained in

the custody of the customs officials, without any clear and

satisfactory proof regarding its proper deposit and preservation

in accordance with the prescribed procedure. More significantly,

there is no convincing evidence to show that samples were

drawn from the seized contraband in the presence of the

Magistrate as mandated under Section 52A of the NDPS Act and

the relevant Standing Instructions applicable at the relevant

time. The chain of custody, therefore, remains seriously

doubtful. In addition, although the chemical examination report

indicates that the sample tested positive for charas, the

prosecution has failed to establish an unbroken link between the

seized substance and the sample sent to the FSL, thereby

creating a serious doubt regarding the sanctity of the alleged

recovery and its subsequent examination.

33. In the present case, as noticed hereinabove,

serious doubts arise with regard to compliance of the mandatory

safeguards under Section 52A of the NDPS Act, particularly as

to whether the samples were in fact drawn in the presence of the

Magistrate as required under law. Though PW-7, was stated to

be part of the raiding team and has also deposed before the Trial
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Court, his evidence does not inspire confidence so far as the

essential aspects of weighment, sealing and custody of the

seized contraband are concerned. His participation in the raid,

by itself, does not satisfy the statutory requirement, as he was

merely a member/signatory to the seizure process and not the

authority competent to certify the inventory or the sampling

procedure. The law mandates that such certification must be

done by the designated Judicial Magistrate, First Class, which is

conspicuously absent in the present case. Moreover, the material

exhibits relating to the seized contraband were not produced

before the learned Trial Court, thereby further weakening the

prosecution case and casting a serious doubt on the authenticity

and integrity of the alleged recovery and sampling process.

Whether non production of seized contraband can

prejudice the accused?

34. In case of Jitendra and Another v. State of M. P.

reported in 2004 (10) SCC 562, the Apex Court has observed

that the Charas and Ganja alleged to have been seized from the

possession of the accused were not produced before the trial

court to connect them with the sample sent to the forensic

science laboratory (FSL). The High Court noticed the lacuna but

brushed it aside by observing that non-production of those
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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articles before the court is not fatal to the prosecution when the

defense had not insisted during trial that those be produced.

While observing so, 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. Rejecting the aforesaid reasoning, the Apex Court held:

“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 when 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 offense is
punishable with a stringent sentence as under the NDPS
Act. …”

35. The aforesaid view was followed by the Apex

Court in case of Ashok v. State of M.P. (Criminal Appeal Nos.

946-947 OF 2019), wherein the Apex Court, inter alia,

emphasized upon the necessity of maintaining proper custody of

the seized contraband from the date of its seizure till obtaining

of FSL report including production in Court because for the

prosecution to succeed it is imperative that there must be

evidence to connect the forensic report with the substance that

was seized from the possession of the accused.
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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36. In case of Noor Aga v. State of Punjab reported

in 2010 (3) SCC (CRI) 748, the accused, an Afghan national,

was apprehended with 1.4 kg heroin concealed in layered wall

of a carton carrying grapes. The contraband articles were

produced before the Magistrate. Evidence, however, was not

clear regarding the purpose of such production and there was no

evidence that order was passed in respect of its destruction.

Moreover, no application for destruction was filed. During trial,

the seized contraband was not produced. Submission, on behalf

of accused, inter alia, was that prosecution having not produced

the physical evidence of the seizure before the court,

particularly the sample of the purported contraband material, no

conviction could have been based thereupon. On behalf of the

prosecution, submission was that the contraband was destroyed

under orders of the Magistrate. The Apex Court found that there

was no cogent evidence that guidelines in respect of destruction

of contraband articles were followed. Relevant observations are

extracted below:

“96. Last but not the least, physical
evidence relating to three samples taken from the bulk
amount of heroin was also not produced. Even if it is
accepted for the sake of argument that the bulk quantity
was destroyed, the samples were essential to be produced
and proved as primary evidence for the purpose of
establishing the fact of recovery of heroin as envisaged
under Section 52-A of the Act.” 25.1. After observing as
above, this Court proceeded to notice several
discrepancies in the evidence produced and held:
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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“100. Physical evidence of a case of this
nature being the property of the court should have been
treated to be sacrosanct. Non-production thereof would
warrant drawing of a negative inference within the
meaning of section 114 (g) of the Evidence Act. While
there are such a large number of discrepancies, if a
cumulative effect thereto is taken into consideration on
the basis whereof the permissive inference would be that
serious doubts are created with respect to the
prosecution’s endeavor to prove the fact of possession of
contraband by the appellant.”

37. Following the decision in case of Noor Aga

(supra), the Apex Court, in case of Union of India v.

Jaroopram, (Criminal Appeal Nos. 741-742 OF 2011) laid

emphasis on the production of the bulk quantity of seized

contraband in absence of there being evidence of its disposal.

The relevant paragraphs are as under:

“10. Omission on the part of the
prosecution to produce the bulk quantity of seized
opium would create a doubt in the mind of the court
on the genuineness of the samples drawn and
marked as A, B, C, D, E, F from the allegedly seized
contraband. However, the simple argument that the
same had been destroyed, cannot be accepted as it is
not clear that on what authority it was done. Law
requires that such an authority must flow from an
order passed by the Magistrate. On a bare perusal
of the record, it is apparent that at no point of time
any prayer had been made by the prosecution for
destruction of the said opium or disposal thereof
otherwise. The only course of action the prosecution
should have resorted to is for its disposal is to
obtain an order from the competent court of
Magistrate as envisaged under section 52A of the
Act. It is explicitly made under the Act that as and
when such an application is made, the Magistrate
may, as soon as may be, allow the application.
11. There is no denial of the fact that
the prosecution has not filed any such application
for disposal /destruction of the allegedly seized bulk
quantity of contraband material nor was any such
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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order passed by the Magistrate. Even no notice has
been given to the accused before such alleged
destruction /disposal. It is also pertinent here to
mention that the trial court appears to have believed
the prosecution's story in a haste and awarded
conviction to the respondent without warranting the
production of bulk quantity of contraband. But, the
High Court committed no error in dealing with this
aspect of the case and disbelieving the prosecution
story by arriving at the conclusion that at the trial,
the bulk quantities of contraband were not exhibited
to the witnesses at the time of adducing evidence.”

38. In case of Baldev Singh v. State of Haryana

reported in 2015 (17) SCC 554, a three- Judge Bench of the

Apex Court, following the decisions in Jitendra (supra), Ashok

(supra) and Noor Aga (supra), allowed the appeal of a convict

on the ground that the seized contraband was not produced and

there was no satisfactory evidence regarding proper custody of

the contraband.

39. In case of Vijay Pandey v. State of U.P.

reported in AIR 2019 Supreme Court 3569, the Apex Court laid

emphasis on the existence of evidence to correlate the seized

sample with the one that was tested. The relevant observations

are reproduced inter alia hereinafter:

“8. The failure of the prosecution in the
present case to relate the seized sample with that seized
from the appellant makes the case no different from
failure to produce the seized sample itself. In the
circumstances the mere production of a laboratory report
that the sample tested was narcotics cannot be
conclusive proof by itself. The sample seized and that
tested have to be correlated.”
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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Whether the circumstances are sufficient to establish

conscious possession of the contraband by the appellant.

40. Possession under the NDPS Act is not a purely

physical concept. In Madan Lal v. State of Himachal Pradesh

reported in (2003) 7 SCC 465, the Supreme Court explained that

possession in the context of the NDPS Act denotes conscious

possession, namely knowledge coupled with dominion and

control. Equally, in Dharampal Singh v. State of Punjab

reported in (2010) 9 SCC 608, it was held that before the

statutory presumptions under Sections 35 and 54 can operate,

the prosecution must first establish the foundational fact of

possession.

41. The burden cast upon an accused under the NDPS

Act is undoubtedly stringent. Yet, the law does not permit the

Court to invert the burden of proof at the threshold. The

prosecution cannot derive assistance from the statutory

presumptions unless it first demonstrates by cogent evidence

that the contraband was in the possession of the accused.

42. Tested on this standard, the evidence on record

falls short of establishing possession of the appellant. No

independent witness has deposed that the bag belonged to him.

Significantly, the bag contained a saree admittedly belonging to
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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the co-accused.

43. The presence of the saree assumes evidentiary

significance. It constitutes an objective circumstance connecting

the bag with the co-accused.

44. In case of Surinder Kumar Khanna v.

Intelligence Officer, DRI reported in (2018) 8 SCC 271, the

Hon’ble Supreme Court held that conviction cannot rest solely

on the statement of a co-accused in the absence of independent

incriminating material. The Constitution Bench of the Apex

Court in case of Tofan Singh (supra), reiterated the limitations

on the evidentiary use of statements recorded by officers under

the NDPS Act.

45. The Hon’ble Supreme Court in case of Mohan

Lal v. State of Rajasthan, reported in (2015) 6 SCC 222,

explained that possession under the NDPS Act is not confined to

physical custody. It includes both actual possession and

constructive possession. Constructive possession means that a

person may not have the contraband physically on his person,

but he knows about its existence, has the power or ability to

exercise control over it, and has the intention (animus) to

exercise such control, which is reproduced hereinafter:

14. Dr Harris, in his essay titled “The Concept
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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of Possession in English Law” [ Published in Oxford
Essays in Jurisprudence (Edited by A.G. Guest, First
Series, Clarendon Press, Oxford, 1968).] while discussing
the various rules relating to possession has stated that
“possession” is a functional and relative concept, which
gives the Judges some discretion in applying abstract rule
to a concrete set of facts. The learned author has suggested
certain factors which have been held to be relevant to
conclude whether a person has acquired possession for the
purposes of a particular rule of law. Some of the factors
enlisted by him are : (a) degree of physical control
exercised by person over a thing, (b) knowledge of the
person claiming possessory rights over a thing, about the
attributes and qualities of the thing, (c) the person's
intention in regard to the thing, that is, “animus
possessionis” and “animus domini”, (d) possession of land
on which the thing is claimed is lying, also the relevant
intention of the occupier of a premises on which the thing is
lying thereon to exclude others from enjoying the land and
anything which happens to be lying there; and Judges'
concept of the social purpose of the particular rule relied
upon by the plaintiff.

46. The Apex Court laid down the above principle by

applying the principle of dominion and control to uphold the

conviction under Section 18 of the NDPS Act in the fact of the

said case, establishing a critical legal precedent for cases where

contraband is not physically found in possession of the accused

in the said case at the time of arrest of the accused in respect of

the opium, which was hidden in a remote pit underneath a

bridge, it was not in his immediate physical possession. The

Apex Court Court rejected this defense by legally

deconstructing possession into two components:

i. Corpus (Physical Control): Direct or indirect access
to the item.
ii. Animus (Intent): The intent to exercise control over
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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the item to the exclusion of others.
47. Based on the above governing principle of law

can the evidence on record and the oral evidence suggest

acquired possession to the knowledge of the appellant

exercising dominion and control as a result of concealment?

48. As laid down by the Hon'ble Supreme Court in the

Mohan Lal (Supra) in which, it is explicitly ruled that "exercise

of dominion and control as a result of concealment" constitutes

valid possession under the law, even though the narcotic

substance was not within Mohan Lal's hands or physical vicinity

at the moment of his arrest.

49. In the present case, the disclosure made by the co-

accused persons, who voluntarily gave statement that they were

carrying the contraband having engaged as a carrier by the

appellant, which would be evident from the evidence of the

seizure witnesses, namely P.W.1 Dinesh Kumar and P.W.2

Laldeo Razak, unequivocally proves the search and recovery of

Charas from the possession of the accused persons, and nothing

substantial has emerged in their cross-examination to discredit

their testimony. The seizure is further corroborated by the

voluntary statements of the accused (Exts. 1/4 to 1/6) and their

interrogatory statements (Exts. 1 to 1/2), wherein they admitted
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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possession of the contraband. The defence has failed to establish

that such statements were obtained by any inducement, threat or

promise by retracting the statement. The evidence further

discloses that accused Birja Prasad was carrying all the bags

from which 10 kilograms of Charas was recovered, while

accused Rambani Khatun and Rozidan Khatun were found

travelling together with him and each of them were found in

possession of 5 kilograms of Charas each. Significantly, sarees

belonging to Rambani Khatun and Rozidan Khatun were

recovered from the bag beneath the seat of Birja Prasad, thereby,

establishing the close association of the three accused persons

and joint involvement in the transportation of the contraband

cannot be ruled out. The unique relationship of the accused,

particularly, the appellant with the contraband establishes that

nobody else new about the Charas in the bag beneath the seat,

which establishes beyond reasonable doubt that the appellant

maintained constructive possession and absolute ownership

contrary over the hidden Charas until seizure. The presumption

of culpable mental state under Section 35 of the NDPS Act,

which includes deliberate and conscious intention over the

purpose to commit the illegal act, motive or objective behind the

action, knowledge of an act or consciousness that substance in
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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question is prohibited narcotic and lastly the act and information

would lead any reasonable person to assume and have reason to

believe that he was in constructive possession of the contraband

with a guilty mind "fulfilling the statutory explanation of

Section 35 of the NDPS Act". The positive evidence on record

establishes the appellant ownership and control over the bag.

The chemical examination report confirms that the seized

substance was Charas. In these circumstances, the prosecution

has proved beyond reasonable doubt that the accused/appellant,

who with a conscious mental state was in continuous conscious

control of the recovered contraband. Consequently, the statutory

presumption under Section 54 of the NDPS Act stands attracted,

and in the absence of any satisfactory explanation from the

accused, the Court has no hesitation in holding that the appellant

was knowingly and consciously possessing and transporting

commercial quantity of Charas, thereby rendering him liable for

conviction under the provisions of the NDPS Act.

50. The principles governing “constructive conscious

possession” have been satisfied, as there is clear proof of

dominion, control, and knowledge of the seized article, this

Court is of the considered opinion that the impugned judgment

of conviction dated 28.05.2012 and order of sentence dated
Patna High Court CR. APP (SJ) No.681 of 2012 dt.23-06-2026
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30.05.2012 passed by the learned 6th Additional Sessions Judge,

Muzzafarpur, in NDPS Case No. 132/07-08, S.T. 3/08, whereby

and whereunder, the appellant has been convicted for the

offence punishable under Sections 20 (b) (ii) C of the NDPS

Act and have been sentenced to undergo Rigorous

Imprisonment for 10 years and fine of Rs. 1 lakh. don't require

any interference, accordingly, the appeal is dismissed.

51. Since the appellant is on bail, he is directed to be

taken into custody forthwith.

52. 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)
Niraj/-
AFR/NAFR
CAV DATE 14.05.2026
Uploading Date 23.06.2026
Transmission Date 23.06.2026

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