Patna High Court
Leelam Devi Singh @ Leelam Devi vs The Union Of India Through Director, … on 24 January, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3662 of 2024
Arising Out of PS. Case No.-10 Year-2018 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- East Champaran
======================================================
1. Leelam Devi Singh @ Leelam Devi wife of Ajay Singh Village- Manrakatti,
Ward no. 6, ps- jankapur, Dist- Mahtari (Nepal)
2. Laxmi Devi Wife of Ghanshyam Sarraf @ Ravi Sarraf Village- Geeta
mandir Road, Ward no. 08, ps- Birganj, Dist- Bara, Nepal
... ... Appellant/s
Versus
The Union of India Through Director, NCB, Patna Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Abhishek Kumar, Adv
For the Respondent/s : Mr. Mukeshwar Dayal, APP
For the UOI/NCB : Mr. Awdhesh Kr. Pandey, Sr. CGC
: Mr. Arvind Kumar, CGC
: Mr. Abhishek Kumar, CGC
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 24-01-2025
This appeal has been preferred by the
appellants/convicts under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the Code')
challenging the judgment of conviction dated 01.03.2024 and
order of sentence dated 07.03.2024 passed by learned
Exclusive Special Court No.II under NDPS Act, East
Champaran, Motihari in NDPS Case No. 13 of 2018 (arising
out of NCB/PZU/V/10/2018), whereby the concerned Trial
Court has convicted both above named appellants for the
offence punishable under Section 20(b) (ii) (c) and 23 (c) of
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the Narcotic Drugs and Psychotropic Substances Act (in short
'NDPS') and they have been sentenced to undergo rigorous
imprisonment for ten years and fine of Rs. 1,00,000/- for the
offence punishable under Section 20(b) (ii) (c) of the NDPS
Act and rigorous imprisonment for ten years and fine of Rs.
1,00,000/- for the offence punishable under Section 23 (c) of
the NDPS Act. In default of payment of fine, both appellants
have to undergo further simple imprisonment for six months.
All aforesaid sentences ordered to run concurrently.
2. The case of prosecution in brief as it appears
through complaint petition is that on 26.02.2018 at about
15:30 hours Second Commandant Sri Surendra Vikram (PW-
3), posted in Battalion Headquarters received information
from the Gulzar Hussain (not examined) and Jayant Pandey
(not examined) that two women have left for Bettiah with
some narcotics and also explained PW-3 about their
appearance and look. On the basis of aforesaid information, a
QRT (Quick Response Team) was formed under order of
Second Commandant/PW-3, comprising of six people
including the team commander. QR team left the
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headquarters at 16:00 hours and reached Bettiah bus stand
at 18:00, thereafter team was deployed at different places.
After some time two women were found coming on a
rickshaw, who were asked to stop by women team members.
Upon hearing the voice both women came down from
rickshaw and started running away, where they have been
caught after short chase and searched superficially by female
team members. Upon search something appeared wrapped
around their waist. On questioning by female team members
they disclosed that it is a narcotic substance. They were told
about their legal right as available under Section 50 of the
NDPS Act, whereafter both women agreed for their search.
After that both women were brought to the office of 47 th SSB
Battalion by the women constables and were searched by
Women Commander/SI. Upon a thorough search by women
employees, 16 rectangular flat items covered with yellow
coloured plastic, wrapped in white cloth were found around
the waist of both the women. When the item was checked
with a drug detection kit, it was confirmed to be hashish
(charas) and upon weighing same, it was found total of 7.8
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kilograms. During interrogation they told their names as
Leelam Devi (appellant no. 1) and Laxmi Devi (appellant no.
2). In front of two independent witnesses namely Manoj
Kumar and Pintu Kumar a seizure memo of aforesaid
recovered contraband was prepared.
3. On the basis of aforesaid official complaint, the
police registered a case as NDPS Case No. 13 of 2018 dated
27.02.2018
for the offence punishable under Sections 20(b)
(ii)(c) and 23(c) and 29 of the NDPS Act, where after
investigation, police submitted charge-sheet.
4. The learned Sessions Judge-cum-Special Judge,
being Court of original jurisdiction after perusal of record and
materials collected during the course of investigation, took
cognizance for the offences under Sections 20(b)(ii)(c), 23(c)
and 29 of the NDPS Act and transferred this case to the Court
of Additional District and Sessions Judge 7th-cum-Special
Judge, Motihari, East Champaran on 10.09.2018 for trial and
disposal.
5. The learned trial court on the basis of materials
collected during investigation, framed charges against both
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appellants/convict on 18.12.2018 for the offences punishable
under Sections 20(b)(ii)(c) and 23(c) of the NDPS Act, which
they pleaded “not guilty” and claimed trial.
6. To substantiate its case, the prosecution has
examined altogether ten witnesses. They are:-
Prosecution Witnesses Name
P.W. 1 Shanti S., Constable
P.W. 2 Nidhi, Sub-Inspector
P.W. 3 Surendra Vikram, 2nd
Command Officer
P.W. 4 Anjum Ara, Lady Constable
P.W. 5 Sanjeev Kumar Singh,
Intelligence Officer, NCB,
Patna
P.W. 6 Subhash Chand Mandal,
Assistant Sub-Inspector
P.W. 7 Bikash Kumar, Intelligence
Officer, NCB, Patna
P.W. 8 K.V. Robinson Gangte,
Superintendent of NCB, Patna
P.W. 9 Manoj Kumar Yadav, Head
Constable cum Godam
Assistant
P.W. 10 Rajan Kumar, Godown Supdt.
of NCB, Patna
7. Apart from the oral evidence, the prosecution
has also relied upon following documents/exhibits in order to
prove the charges:-
Exhibit No(s). List of documents
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Exhibit-1 Notice for Search u/s 50 of
NDPS Act (with objection)
Exhibit-2 Medical Examination of two
female arrested persons.
Exhibit-2/1 Jama Talashi of accused Laxmi
Devi
Exhibit-2/2 Jama Talashi of accused Leelam
Devi Singh
Exhibit-2/3 to Exhibit-2/7 Signature of Sub Inspector Miss
Nidhi on Panchnama cum Search
cum Seizure List
Exhibit-2/8 and Exhibit-2/9 Signature of Sub Inspector Miss
Nidhi on arrest memo of both
ladies accused
Exhibit-3 and Exhibit-3/1 Signature of constable Anjum
Ara on statement of both female
accused u/s 67 of NDPS Act.
Exhibit-4 to Exhibit-4/4 Signature of constable Anjum
Ara on every page of panchnama
cum search cum seizure list.
Exhibit-4/5 to Exhibit-4/9 Signature of Subhas Chandra
Mandal, ASI G.D. on panchnama
cum search cum seizure list.
Exhibit-4/10 to Exhibit-4/14 Signature of Bikash Kumar on
panchnama cum search cum
seizure list of each and every
page.
Exhibit-5 Information application
Exhibit-6 Seizure list prepared by Sanjeev
Kr. Singh, Intelligence officer of
NCB, Patna.
Exhibit-7 and Exhibit-7/1 Signature of S.K. Singh,
Intelligence officer, NCB Patna
on carbon copy of notice u/s 67
of NDPS Act and served to both
female accused Leelam Devi
Singh and Laxmi Devi.
Exhibit-8 Self statement of female
accused Leelam Devi Singh and
she has put her signature on
each and every page.
Exhibit-9 Self statement of female
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accused Laxmi Devi
Exhibit-10 and Exhibit-10/1 Signature of S.K. Singh,
Intelligence officer, NCB Patna
on carbon copy of notice u/s 67
of NDPS Act
Exhibit-11 Signature of Pintu Kumar,
Independent witness on self
statement and signature of SK
Singh, Intelligence officer NCB
Patna
Exhibit-12 and Exhibit-12/1 Signature of carbon copy of
arrest memo by both female
accused Laxmi Devi and Leelam
Devi Singh
Exhibit-13 Jama talashi of accused Laxmi
Devi
Exhibit-13/1 Jama talashi of accused Leelam
Devi Singh
Exhibit-14 Godown/Malkhana Receipt of
remaining charas after sampling
and duplicate sample of 25 gram
of substance like charas.
Exhibit-15 Compliance application of NDPS
Act Sec. 57 upon which Crime
No. 10/2018 is mentioned
Exhibit-16 Receipt of two test memo on
which Lab No. 3063/SZD (N)-
1268 Dated 06.03.2018 crime
no. NCB/PZU/V/10/2018 is
mentioned.
Exhibit-16/1 Forwarded copy of Test Memo
Exhibit-17 Official complaint and prayer for
both accused persons for taking
cognizance of the offences as
alleged against them and punish
the accused persons in
accordance with Law and
regarding the confiscation of
seized charas.
Exhibit-18 Forwarding letter to Regional
Director, NCB, Patna by Subhash
Chand Mandal, 47th BN.S.S.B.,
Pantoka Raxaul for seized
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substance i.e., 7.8. kg. charas
and both apprehended persons
for advance legal action.
Exhibit-18/(A) Certificate under Section 52A of
NDPS
Exhibit-19 Photograph of contraband seized
articles on which date of
certification is mentioned in
connection with NDPS Case No.
13/2018 (NCB Cr. No. 10/2018)
on 30.08.2018.
Exhibit-20 Certification of destruction of
seized substance and signature
of TN Singh, Zonal Director, NCB
Patna and Santosh Kr. Deputy
Director (in-charge) DRI Patna,
Member-1 DDC and signature of
SK Jha, IRS Assistant
commissioner custom, Patna
Member-II DDC
Exhibit-21 Substituted copy entry of
godown Register which if godown
entry page no. 079 and Sl. No.
77
8. On the basis of evidence as surfaced during the
trial, the learned trial court has examined the
appellants/accused under Section 313 of the Code, where
they completely denied their involvement by denying the
incriminating evidences as surfaced during the trial and stated
that they were implicated with this case falsely and claimed
their complete innocence.
9. Neither any witness was examined by
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appellants/convicts during the trial in their defence, nor any
documents were exhibited.
10. Taking note of the evidence as surfaced during
the trial and the arguments as advanced by the parties, the
learned Trial Court has convicted both the appellants/convicts
for the offences punishable under Sections 20(b)(ii)(c) and
23(c) of the NDPS Act and sentenced them in the manner as
stated above.
11. Being aggrieved with the aforesaid judgment
of conviction and order of sentence, the appellants/convict
has preferred the present appeal.
12. Hence, the present appeal.
Argument on behalf of the appellant/convict:
13. Learned counsel appearing on behalf of
appellants/convicts submitted that mandatory legal provisions
regarding search, sampling and seizure (SSS) not appears to
be followed in the present case. It is submitted that even the
personal search was not carried out in the presence of
Gazetted Officer. Seized contraband was not produced before
the court during the trial. It is also pointed that Standing
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Instruction No. 1 of 1988 of Narcotics Control Bureau,
Government of India issued under Section 52 of the NDPS
Act also not appears to be followed in the present case.
14. While concluding the argument it is pointed out
that both independent seizure list witnesses namely Manoj
Kumar and Pintu Kumar failed to examine during the trial
making entire prosecution doubtful. In this context it is also
submitted by learned counsel that learned trial court while
recording the judgment of conviction overlooked the major
contradictions as surfaced during the trial qua recovery of
contraband. In support of his submission qua personal search
under Section 50 of the NDPS Act learned counsel relied upon
the legal report of Hon’ble Supreme Court, as available
through Mina Pun Vs. State of Uttar Pradesh, reported in
[(2023) SCC Online 1079].
Argument on behalf of State:
15. Learned counsel appearing on behalf of NCB,
while opposing the appeal submitted that minor contradictions
are born to surface and further same are not of such nature
on the basis of which entire prosecution is said to be vitiated
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as to doubt the judgment of conviction. It is submitted that
the seized contraband could not produced before the court, as
same was destroyed in accordance with law, which is duly
supported by P.W. 8, 9 and 10 and therefore the judgment of
conviction is not required to be interfered on this ground.
16. I have perused the trial court records carefully
and gone through the evidences available on record and also
considered the rival submissions as canvassed by learned
counsel appearing on behalf of the parties.
17. As to re-appreciate the evidences, while
disposing the present appeal, it would be apposite to discuss
the evidences available on record, which are as under:-
18. P.W.-1 Shanti S., who is one of the member
of the Quick Response Team (hereinafter referred as ‘raiding
team’). She deposed that occurrence is of 26.02.2018 and on
that day she was posted as constable in 47th Battalion Pantoka
Camp, where an information was received at 3:30 PM that
two ladies are entering Indian territory with contraband from
Nepal, whereafter raiding team was constituted with P.W. 4
Anjum Ara constable, P.W. 6 Subhash Chand Mandal, Bablu
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Kumar, Rana Kumar and Pawan Kumar. Thereafter they all
proceeded for Bettiah at about 4:00 PM. They arrived Bettiah
Bus Stand at about 6:00 PM, where after half an hour they
found two ladies were coming together. She and Anjum Ara
(P.W. 4) was ordered by ASI Subhash Chand Mandal to arrest
the said ladies. They asked to stop them but they started
running away after stepping down from rickshaw. After short
chase both of them were apprehended and were brought near
to Bettiah Bus Stand, where upon inquiry they admitted to
carrying contraband. Out of incident, crowd gathered over
there from which the commander called two independent
witnesses namely Pintu Kumar and Manoj Kumar and
thereafter they alongwith entire team returned to the camp. It
was deposed that after returning to camp Nidhi (P.W. 2)
asked both apprehended ladies to give their search before
them or before any Gazetted Officer, on which both ladies
gave their consent to search by them. Upon search they found
with total of 16 packets of contraband, wrapped in a yellow
colour polythene, which was further covered by white cloth.
Upon preliminary detection test it was found as ” charas”
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was carried out by commander Subhash Chand Mandal. She
identified both the appellants during the trial and stated that
“charas” was recovered from them.
18.1. Upon cross-examination, she stated that
“charas” was not seized by her. It appears from her
statement that the search was carried out in the camp. She
did not put her signature anywhere during the entire incident.
It was stated that from each of the ladies 8 (eight) packets of
contrabands were recovered. She failed to disclose the weight
of individual packets. It was stated that entire document was
prepared by Office Assistant, Rana Kumar. Ladies (appellants)
were kept in camp for a single day.
19. P.W. 2 Nidhi, was also one of the member of
raiding team. It was deposed by her that notice under Section
50 of the NDPS Act was served upon appellants and was in
writing of Office Assistant, Rana Kumar which was bearing her
signature also which upon her identification, exhibited as
Exhibit No. 1, with objection. It was deposed that search
upon appellants, were carried by lady members of the raiding
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were found tied in the waist of each lady, which was further
covered under white cloth. It was weighed and also tested
preliminary by detection kit upon which it was found as
charas, whereafter the matter was reported to NCB, who
came on next day, thereafter entire proceeding was carried
out. It was deposed that seized packets were of charas
weighing total about 7.8 kilograms. She identified her
signature on personal search and seizure list, which upon her
identification was exhibited as Exhibit No. 2/3 to 2/7
respectively. It was also deposed by her that seizure list
bears signature of two independent witnesses also, namely
Pintu Kumar and Manoj Kumar. She also put her signature on
arrest memo of both the appellants, which upon her
identification was exhibited as Exhibit No. 2/8 and 2/9.
She identified appellants during the trial.
19.1. Upon cross-examination, she stated that on
the date of occurrence she was SI rank officer. She did not
put seal on the seized 16 packets. The name of appellants or
their signature, thumb impression was also not obtained on
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said seized packets of contraband. It was stated that on said
day Gazetted Officer was posted in her camp, who was
Surendra Vikram (PW-3). She handed over seized packets to
P.W. 6 and thereafter, where it was kept was not in her
knowledge. She failed to disclose the name of person who
tested contraband by detection kit but stated that testing was
done under direction of Subhash Chand Mandal (P.W. 6).
20. P.W. 3 is Surendra Vikram, who appears to
be Excise Officer and from his testimony it appears that he
was informed by ASI Subhash Chand Mandal that upon
search total of 7.8 kilograms of charas was recovered from
both the ladies. He categorically stated during his cross-
examination that he was not present at the time of search of
appellants. It was stated that the search was carried out by
Nidhi (P.W. 2) and Anjum Ara (P.W. 4), and he came to know
about the recovery from these two witnesses only.
21. P.W. is 4 Anjum Ara, who narrated the
occurrence of recovery in the same manner as it was deposed
by P.W. 1 and P.W. 2. It was deposed by her that during
search sixteen packets of contraband were recovered, which
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were wrapped in brown colour paper which found further
covered under white cloth. She recorded the statement of
appellant Laxmi Devi which runs in five pages and also
obtained her thumb impression on all five pages. She also
identified her signature on these pages and also the signature
of NCB Officer, which upon her identification were exhibited
as Exhibit No. 3 and 3/1. She also identified her signature
on five pages, which upon her identification was exhibited as
Exhibit No. 4 to 4/4. She identified both appellants Laxmi
Devi and Leelam Devi before the court during the trial and
deposed that from their possession only charas was
recovered.
21.1. Upon cross-examination, it was stated by her
that she did not search any appellant/accused at the place of
recovery. It was stated that the search was carried out in
Pantoka Camp. It was stated that during the search P.W. 2
and P.W. 1 were present with her. It was further stated that
total recovery of 16 packets were made which was wrapped in
white cloth. They did not mentioned on individual packet that
from which lady it was recovered. It was also stated that
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recovered packets were not numbered. Even the signature of
appellants or their thumb impressions were not obtained on
packets. She was not aware about the seizure of white cloth.
It was stated that seizure was carried out in camp. It was also
stated by her that P.W. 2 was deputed as lady Gazetted
Officer on the date of occurrence. It was stated that the
statement of both the ladies were recorded, where statement
of Leelam Devi was recorded self whereas statement of Laxmi
Devi was recorded by her. It was stated that the seized
material was handed over to P.W. 2 by her immediately after
seizure. She even failed to collect out of her memory that
which appellants were arrested by her.
22. P.W. 5 is Sanjeev Kumar Singh, who
received information at about 7:00 PM on 26.02.2018 from
SSB Pantoka that two appellants were apprehended with 7.8
kilograms of charas. Aforesaid information was reduced in
writing by him and was shared with Zonal Director, NCB
Patna, who approved the raiding team. He identified his
signature on aforesaid approval which upon his identification
was exhibited as Exhibit No. 5. On 27.02.2018 at about
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2:00 PM he arrived alongwith raiding team. He proceeded for
Pantoka and arrived there by 8:00 PM, where he met ASI
Subhash Chand Mandal (P.W. 6). It was stated that there
were 16 rectangular packets and from each packet some
quantity was taken out and was tested by detection kit, which
upon testing was found “charas” weighing total of 7.8
kilograms. Sample was taken from each packets and it was 25
grams, which later on divided in two parts and was marked as
“S1” and “S2”. Thereafter, rest of the contraband after
putting in plastic bag covered by white cloth on which
departmental seal “OP” was put. After seizure the signature
of two independent witnesses namely Pintu Kumar and Manoj
Kumar, lady constables Anjum Ara (P.W. 4) and P.W. 6, were
obtained on it. He identified the seizure list during the course
of trial, which upon his identification was exhibited as Exhibit
No. 6. He also issued notice on 27.02.2018 under Section 67
of the NDPS Act, which upon his identification was exhibited
as Exhibit No. 7 and 7/1. On 27-28.02.2018 the
statement of accused Leelam Devi was recorded in view of
Section 67 of the NDPS Act, whereas statement of Laxmi
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Devi was recorded by lady constable, P.W. 4 Anjum Ara
before him, where she confessed their involvement in crime in
issue. He further identified said statements during the trial,
which upon his identification was exhibited as Exhibit No. 9.
It was deposed that both appellants were arrested on
28.02.2018 by him. The arrest memo was signed by lady SI
P.W. 2 Nidhi, which upon her identification was exhibited as
Exhibit No. 12 and 12/1. On 28.02.2018 as per the
direction of the court “S2” sample and contraband ‘P’ were
sent to NCB Malkhana under his signature, which he identified
during the trial, which upon his identification was exhibited as
Exhibit No. 14 and sent “S1” sample to Calcutta for forensic
examination, which upon lab test affirmed seized material
sample as charas. FSL Report of Calcutta was exhibited as
Exhibit No. 16 and 16/1.
22.1. Upon cross-examination, it was stated by him
that he did not mention in official complaint, whether lady
constable of SSB were searched upon before searching the
appellants. He did not recorded any statement of P.W. 2
Nidhi. It was stated that contraband was handed over to him
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by ASI Subhash Chand Mandal (P.W.6). He did not mention
in the complaint that from which body part said contraband
was recovered from the appellants. Contraband was produced
before court on 28.02.2018, whereas on 27.02.2018 it was
handed over to him, where neither any seal, nor any thumb
impression or signature were found on the packets. It was
stated that the statement of appellants were recorded after
seven hours of their custody. He disclosed that on Exhibit
No. 13, the name of accused shown as Laxmi Devi, whereas
on Exhibit No. 13/1 name of Leelam Devi appears shown,
which was obtained through carbon copy process. He did not
mention in his official complaint that at what time both
appellants were arrested by lady constables of SSB. It was
stated that he did not produce contraband today before the
court.
23. P.W. 6 is Subhash Chand Mandal , who
received information about movement of appellants on
26.02.2018 at about 3:30 PM, whereafter he constituted the
raiding team as already discussed in the depositions of P.W. 1
& P.W. 2 and thereafter both appellants were apprehended
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from whom 7.8 kilograms of charas was recovered. It was
deposed that the notice was given to the appellants under
Section 50 of the NDPS Act and thereafter P.W. 2 Nidhi made
search upon appellant ladies. They were searched in two
different rooms. Two lady constables, P.W. 1 Shanti S and
P.W. 4 Anjum Ara searched upon both the appellants and
they recovered eight packets from each of the appellants total
of 16 packets, which was wrapped in yellow colour plastic.
Thereafter it was tested by narcotic kit by P.W. 2 Nidhi, where
it was confirmed that seized material was charas, which upon
weighing found 7.8 kilograms, whereafter he reported
occurrence to NCB team. He identified his signature on the
said letter, which upon his identification was exhibited as
Exhibit No. 18.
23.1. Upon cross-examination, it appears that
search was not made before him. He seized the materials
which was provided to him by lady constables Shanti S. (PW-
1) and Anjum Ara (PW-4). Name of Shanti S. or Leelam Devi
was not written on any packets, which alleged to be
recovered. It was stated that test by narcotic kit was done by
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P.W. 3 namely Surendra Vikram. These packets were not
weighed independently. It was stated that further procedural
work was carried out on 27.02.2018 by NCB.
24. P.W. 7 is Bikash Kumar, who supported the
occurrence of 26.02.2018 and recovery of 16 packets
wrapped in yellow polythene and further wrapped in white
cloth from both the appellants, which looked like charas,
whereafter it was tested through drug detection kit and was
confirmed to be charas. Upon weighing it was found about 7.8
kilograms. He also supported the preparation of two samples
each of 25 grams and thereafter the rest of contraband was
kept in godown under departmental seal. It was stated that
entire sealing work completed on 27.02.2018 between 9:00
AM to 3:00 PM.
24.1. Upon cross-examination, it was stated that
contraband was produced before them by P.W. 6 Subhash
Chand Mandal, ASI posted with SSB, Pantoka. It was stated
that he was not present, when search was carried out and also
failed to disclose, whether seized contraband was produced
before the court. It was stated that he cannot say, whether
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seized contraband was sealed, when it was produced before
him. He failed to produce the seized contraband before the
court on the date of his deposition.
25. P.W. 8 is K.V. Robinson Gangte, he also
supported the recovery of contraband. He was posted as
Superintendent of NCB, Patna. He brought contraband
alongwith him and team members to Patna office in the
evening of 28.02.2018 and deposited seized contraband with
Malkhana of NCB, Patna. He produced godown receipt during
the trial and identified his signature on it, which upon his
identification was exhibited as Exhibit No. 14. He also
identified his signature on the compliance report of Section 57
of the NDPS Act, which upon his identification was exhibited
as Exhibit No. 15. Certificate which bears signature of
learned Judicial Magistrate and Sri Prakash Ram I.O. was also
approved by him during the trial as he also identified his
signature on it, which upon his identification was exhibited as
Exhibit No. 18. He also identified the photographs of seized
items, produced before learned Judicial Magistrate. He also
signed on photographs. He identified his signature on
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photographs, which upon his identification was exhibited as
Exhibit No. 19.
25.1. Upon cross-examination, he denied to
implicate appellants falsely.
26. P.W. 9 is Manoj Kumar Yadav, who deposed
that seized charas was destroyed as per rule. He produced the
destruction list before the court, which was signed by P.W. 8
and Zonal Director T.N. Singh, Santosh Singh, Deputy
Director DRI and SK Jha Additional Commissioner, which
upon his identification was exhibited as Exhibit No. 20.
26.1. Upon cross-examination, it was stated by him
that all aforesaid papers were signed before him. He denied
the suggestion of false implications.
27. P.W. 10 is Rajan Kumar, who is godown
incharge and brought godown register, where recovery of the
present case is mentioned on page no. 079 as godown entry
no. 77. He identified his writing in register during trial, which
upon his identification was exhibited as Exhibit No. 21. He
also deposed specifically that the seized contraband was
already destroyed as per rule. Upon cross-examination, he
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stated that he was not present at the time of destruction.
28. Learned counsel further submitted that
compliance of Section 50 of the NDPS Act not appears to be
followed in the present case. It would be apposite to
reproduce provision of Section 50 of the NDPS Act for better
understanding of fact, which is as:-
50. Conditions under which search of
persons shall be conducted.–(1) When
any officer duly authorised under section 42 is
about to search any person under the
provisions of section 41, section 42 or section
43, he shall, if such person so requires, take
such person without unnecessary delay to
nearest Gazetted Officer of any of the
departments mentioned in section 42 or to
the nearest Magistrate.
(2) If such requisition is made, the officer
may detain the person until he can bring him
before the Gazetted Officer or the Magistrate
referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate
before whom any such person is brought
shall, if he sees no reasonable ground for
search, forthwith discharge the person but
otherwise shall direct that search be made.(4)
No female shall be searched by anyone
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excepting a female.
[(5) When an officer duly authorised under
section 42 has reason to believe that it is not
possible to take the person to be searched to
the nearest Gazetted Officer or Magistrate
without the possibility of the person to be
searched parting with possession of any
narcotic drug or psychotropic substance, or
controlled substance or article or document,
he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate,
proceed to search the person as provided
under section100 of the Code of Criminal
Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-
section (5), the officer shall record the
reasons for such belief which necessitated
such search and within seventy-two hours
send a copy thereof to his immediate official
superior.]
Discussion & Conclusion
29. From the perusal of deposition of prosecution
witnesses, particularly P.W. 1, 2, 3 and 4, who are members
of raiding team, it appears that both appellants, who are
ladies were apprehended with contraband, somewhere near to
Bettiah Bus Stand, when they started running away by seeing
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police personnel who asked them to stop while chasing. Both
appellants were brought first to bus stand, thereafter Pantoka
camp. Admittedly no search and seizure was made at the
place of recovery. Though it transpires from their deposition
that notice under Section 50 of the NDPS Act was given to
appellants but its compliance appears doubtfull on its face. It
appears out of deposition of P.W. 3, who was Gazetted Officer
that he was not present, when search was carried upon both
the appellants by P.W. 2 & P.W. 4. whereas P.W. 2 Nidhi S.I.,
categorically stated that she did not put any seal on seized
packets, the name of appellants was also not mentioned over
there. It was stated by her that on said day in her camp P.W.
3 namely Surendra Vikram was posted as Gazetted Officer. It
transpires from her testimony that the seized packets were
handed over to P.W. 6 without any sealing and marking, and
it was also not in her knowledge that where it was kept
thereafter. Similarly, P.W. 4 deposed that she did not search
either of the lady appellants on the place of recovery and
neither signature/thumb impression of appellants were taken
on seized packets.
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30. The depositions of these two witnesses further
clarified the scenario of search and marking of the seized
contraband, where admittedly no search was carried out at
the place of recovery. In this connection, it would be apposite
to refer the testimony of P.W. 5, which suggest that entire
seizure was carried out on 27.02.2018 starting from 9:00AM
which concluded by 3:00 PM. It transpires from his
examination-in-chief that entire search was carried out by him
and his team who arrived from Patna but in his cross-
examination, it appears that contraband was handed over to
him by P.W. 6 ASI of the SSB. He also categorically stated
that the contraband was sealed by departmental seal but said
seal was not produced before the court. Moreover the
independent witnesses of entire search namely Pintu Kumar
and Manoj Kumar were not examined during the trial, which
further makes search and sealing of the recovered contraband
doubtful.
31. The most disturbing aspect which transpires out
of testimony of P.W. 1, P.W. 2 and P.W. 4, who were part of
the raiding team is that P.W. 1 stated that contraband was
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wrapped in yellow colour plastic bag and was covered with
white cloth, P.W. 2 only testified about the white cloth,
whereas P.W. 4 testified that contraband was inside brown
paper and was covered with white cloth. Though the white
cloth, which was not seized appears common from the
testimony of all these three witnesses, who were part of the
raiding team but first covering of contraband, appears
completely different as P.W. 1 disclosed it as yellow
polythene, whereas P.W. 2 kept silent, whereas P.W. 4
disclosed and testified it as brown paper makes entire
recovery doubtful on its face.
32. It would be apposite to reproduce the para nos.
24 and 29 of the Mina Pun Case (supra), in aforesaid
context which reads as under:-
8. In view of the law laid down by a
Constitution bench of this Court in Vijaysinh
Jadeja v. State of Gujarat1, it is crystal clear
that there was a violation of the safeguard
provided by Section 50 of the NDPS Act. In
paragraphs 24 and 29 of its decision, the
Constitution Bench held thus:
“24. Although the Constitution Bench in
Baldev Singh case [(1999) 6 SCC 172 : 1999
Patna High Court CR. APP (SJ) No.3662 of 2024 dt.24-01-2025
30/36SCC (Cri) 1080] did not decide in absolute
terms the question whether or not Section 50
of the NDPS Act was directory or mandatory
yet it was held that provisions of sub-section
(1) of Section 50 make it imperative for the
empowered officer to “inform” the person
concerned (suspect) about the existence of
his right that if he so requires, he shall be
searched before a gazetted officer or a
Magistrate; failure to “inform” the suspect
about the existence of his said right would
cause prejudice to him, and in case he so
opts, failure to conduct his search before a
gazetted officer or a Magistrate, may not
vitiate the trial but would render the recovery
of the illicit article suspect and vitiate the
conviction and sentence of an accused, where
the conviction has been recorded only on the
basis of the possession of the illicit article,
recovered from the person during a search
conducted in violation of the provisions of
Section 50 of the NDPS Act. The Court also
noted that it was not necessary that the
information required to be given under
Section 50 should be in a prescribed form or
in writing but it was mandatory that the
suspect was made aware of the existence of
his right to be searched before a gazetted
officer or a Magistrate, if so required by him.
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We respectfully concur with these
conclusions. Any other interpretation of the
provision would make the valuable right
conferred on the suspect illusory and a farce.
25………
26………
27………
28………
29. In view of the foregoing discussion, we
are of the firm opinion that the object with
which the right under Section 50(1) of the
NDPS Act, by way of a safeguard, has been
conferred on the suspect viz. to check the
misuse of power, to avoid harm to innocent
persons and to minimise the allegations of
planting or foisting of false cases by the law
enforcement agencies, it would be imperative
on the part of the empowered officer to
apprise the person intended to be searched of
his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation
in holding that insofar as the obligation of the
authorised officer under sub-section (1) of
Section 50 of the NDPS Act is concerned, it is
mandatory and requires strict compliance.
Failure to comply with the provision would
render the recovery of the illicit article
suspect and vitiate the conviction if the same
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is recorded only on the basis of the recovery
of the illicit article from the person of the
accused during such search. Thereafter, the
suspect may or may not choose to exercise
the right provided to him under the said
provision.”
33. It also appears from the deposition of
prosecution witnesses that Standing Instruction “No. 1 of
1988” dated 15.03.1988 of Narcotics Control Bureau,
Government of India issued under Section 52 of the N.D.P.S.
Act which prescribes the detailed procedure regarding
sampling, sealing and despatching the seized sample to the
laboratory for test was not followed in the present case.
Clauses 1.4, 1.5, 1.6 and 1.9 of the Standing Instruction No.
1 of 1988 dated 15.03.1998, which are relevant to this fact
may be read as under for reference:
“1.4 If the drugs seized are found in
packages/containers, the same should be
serially numbered for purposes of
identification. In case the drugs are found in
loose form, the same should be arranged to
be packed in unit containers of uniform size
and serial numbers should be assigned to
each package/ container. Besides the serial
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of the drug and the date of seizure should
invariably be indicated on the packages. In
case sufficient space is not available for
recording the above information on the
package, a Card Board label, should be
affixed with a seal of the seizing officer and
on this Card Board label, the above details
should be recorded.
1.5 Place and time of drawal of sample
Samples from the Narcotic Drugs and
Psychotropic Substances seized must be
drawn on the spot of recovery, in duplicate,
in the presence of search (Panch) witnesses
and the person from whose possession the
drug has been recovered, and mention to this
effect should invariably be made in the panch
nama drawn on the spot.
1.6 Quantity of different drugs required
in the sample
The Quantity to be drawn in each sample for
chemical test should be 5 grams in respect of
all narcotic drugs and psychotropic
substances except in the cases of Opium,
Ganja and Charas/Hashish where a quantity
of 24 grams in each case is required for
chemical test. The same quantities should be
taken for the duplicate sample also. The
seized drugs in the packages/containers
Patna High Court CR. APP (SJ) No.3662 of 2024 dt.24-01-2025
34/36should be well mixed to make it
homogeneous and representative before the
sample in duplicate is drawn.
1.9 It needs no emphasis that all samples
must be drawn and sealed; in the presence of
the accused, Panchnama witnesses and
seizing officer and all of them shall be
required to put their signatures on each
sample. The official seal of the seizing officer
should also be affixed. If the person, from
whose custody the drugs have been
recovered, wants to put his own seal on the
sample, the same may be allowed on both
the original and the duplicate of each of the
samples.”
34. Hence, from the discussion of aforesaid legal
and factual aspects in this case, it appears that the mandatory
provisions regarding Sampling, Seizure And Sealing (SSS)
not appears to be followed by prosecution in terms of the legal
provisions as available under the NDPS Act. It also appears
that the personal search of appellants were also not made as
per settled law and the seal of the contraband also not
appears to produced before the court during the trial. There
are several questions qua search, sealing and sampling which
appears remain unanswered by the prosecution, benefit of
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which must be extended to the appellants.
35. Accordingly, the appeal stands allowed.
36. The impugned judgment of conviction dated
01.03.2024 and order of sentence dated 07.03.2024 passed
by learned Exclusive Special Court No. 11 under NDPS Act,
East Champaran, Motihari in NDPS Case No. 13 of 2018
(arising out of NCB/PZU/V/10/2018) is, hereby, set aside.
Both above named appellants are acquitted from the charges
levelled against them, by giving them benefit of doubt.
37. Since the appellants are in custody in
connection with this case, they are directed to be released
forthwith, if not required in any other case. Fine, if any
deposited by appellants, be returned to them henceforth.
38. Office is directed to send back the trial court
records along with a copy of this judgment to the learned trial
court forthwith.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
AFR/NAFR AFR CAV DATE 08.01.2025 Uploading Date 24.01.2025 Transmission Date 24.01.2025
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