Patna High Court
Amit Kumar @ Amit Kumar Singh @ Amit vs The State Of Bihar on 14 July, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1093 of 2023
Arising Out of PS. Case No.-116 Year-2019 Thana- MOHAMMADPUR District- Gopalganj
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1. Amit Kumar @ Amit Kumar Singh @ Amit, Son of Rajveer Singh, Resident
of Village -Jauli, P.S.- Gohana, District- Sonipat (Haryana)
2. Vikash Kumar, Son of Aryaveer Singh, Resident of Village- Basaudi, PS-
Rai, Distt- Sonipat, (Haryana)
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Arvind Kumar, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 14-07-2025
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 09.08.2023 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
28.08.2023
(hereinafter referred to as the ‘impugned order’)
passed by learned 1st Additional Sessions Judge-cum-Special
Judge, NDPS Act, Gopalganj (hereinafter referred to as the
‘learned trial court’) in Sessions Trial No. 15 of 2019 arising out of
Mohammadpur P.S. Case No. 116 of 2019. By the impugned
judgment of conviction, the appellants have been convicted under
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Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short ‘NDPS Act‘) and by the impugned
order, they have been ordered to undergo rigorous imprisonment
for twelve years with a fine of Rs.1,20,000/- under Section 20(b)
(ii)(C) of the NDPS Act and in default of payment of fine, they
have to further undergo one year imprisonment.
Prosecution Case
3. The prosecution case is based on the self-statement of
S.I. Mithilesh Kumar Pandey (PW-7), S.H.O. Mohammadpur Police
Station recorded by himself on 04.07.2019. In his written application
(Exhibit ‘3’), the informant has stated that on 04.07.2019 at 15:30
Hrs, he got secret information that a smuggler is bringing ganja in a
container from Motihari side. After registering sanha, the Senior
Officer was informed and as per his instructions, a raiding team was
formed in which informant was also a member. The informant along
with raiding team reached near Sudama Singh’s hotel at 15:45 Hrs
and started checking the vehicles. During checking, a container
coming from Dumariyaghat (Motihari) was asked to stop but the
driver and the co-driver stopped the vehicle, got down from the
vehicle and started running away. They were caught with the help of
the police force. At the same time, the Circle Officer, Sidhwaliyan
reached there. Few nearby people also gathered there and amongst
them two persons namely (i) Sudama Singh (not examined) and (ii)
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Satyendra Manjhi (PW-9) were made independent witnesses. Name
of the driver and the co-driver in the presence of two independent
witnesses was asked on which the driver told his name as Vikash
Kumar (appellant no. 2) and the co-driver told his name as Amit
Kumar (appellant no. 1). Thereafter, following the rules of search, the
arrested persons and the container were searched in front of
independent witnesses and the Circle Officer. During search, Rs.
25,000/- and a mobile were recovered from the pocket of driver
Vikash Kumar and a mobile was recovered from the pocket of co-
driver Amit Kumar. A total of nineteen bundles packed in plastic
were recovered from the box made in the cabin of container bearing
no. AS09AC-6571. The bundles were opened in which ganja like
material was found. Each bundle was weighed and marked as
Exhibits ‘H-1’ to ‘H-19’, in which a total of 178.160 kg of ganja was
recovered. Along with this, 900 packs of palm oil of fifteen each
were recovered from the seized container. On asking about the
documents of the recovered goods, the driver and co-driver could not
produce any document. Driver Vikash Kumar told that the above
recovered ganja belonged to Raju @ Subodh Kumar Mishra of
Bettiah and had loaded the said container in Birganj. Thereafter,
samples were taken out from the recovered ganja and it was sealed.
A seizure list of all the recovered items was prepared in front of
independent witnesses, Circle Officer and the arrested accused. The
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informant, Circle Officer and independent witnesses signed the
seizure list and one copy of the seizure list was given to each
accused. Accordingly, an FIR was registered against the arrested
persons under the NDPS Act.
4. On the basis of above written application of the
informant, Mohammadpur P.S. Case No. 116 of 2019 dated
04.07.2019 was registered against the appellants under Section
414/34 of the Indian Penal Code (in short ‘IPC‘) and Section 20(b)
(ii)(C), 22(c), 23(c), 29(i) of the NDPS Act.
5. After investigation, police submitted charge sheet
bearing Chargesheet No. 95 of 2019 dated 30.09.2019 against the
appellants under Section 414/34 IPC and Section 20(b)(ii)(C), 22(c),
23(c), 29(i) of the NDPS Act. Thereafter, vide order dated
21.11.2019, learned trial court took cognizance of the offences.
6. The charges were read over to the accused-appellants in
Hindi to which they denied and claimed to be tried, accordingly, vide
order dated 03.12.2019, charges were framed against the appellants
for the offences under Section 414/34 IPC and Sections 20(b)(ii),
7. In course of trial, the prosecution examined nine
witnesses and exhibited several documentary evidences. The
description of the prosecution witnesses and the documents are given
hereunder in tabular form:-
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PW-1 Rajesh Kumar
PW-2 Sanjay Kumar Singh
PW-3 Jitendra Kumar
PW-4 Rampravesh Prasad
PW-5 Awadhesh Kumar
PW-6 Umesh Narayan Parvat
PW-7 Mithilesh Kumar Pandey
PW-8 Manoj Kumar Singh
PW-9 Satyendra ManjhiList of Exhibits on behalf of the Prosecution
Exhibit ‘1’ FSL forwarding letter
Exhibit ‘2’ Signature of Umesh Narayan Parbat
and C.O. on seizure list
Exhibit ‘2/1’ Seizure list
Exhibit ‘3’ Fardbeyan
Exhibit ‘4’ Formal FIR
Exhibit ‘5’ Malkhana Register
Exhibit ‘6’ FSL Report
Material Exhibits
Exhibits ‘M’ to 19 sealed packets of ganja weighing
‘M/18’ 178.160 kg
8. Thereafter, the statements of the accused/appellants
were recorded under Section 313 of the CrPC. The accused took a
plea that they are innocent and have been falsely implicated in this
case.
Findings of the Learned Trial Court
9. Learned trial court after analysing the entire evidence
available on the record found that on 04.07.2019 at 15:30 Hours
ganja was recovered from the box made inside the container which
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was driver by Vikash Kumar and Amit Kumar and they have no
valid licence as also the FSL report proves that the seized article
was ganja.
10 Learned trial court has found that the prosecution has
successfully proved that ganja was recovered from the box inside
Container No. AS09AC-6571 of which Vikash Kumar and Amit
Kumar were driver and co-driver respectively. Learned trial court
found that the prosecution has also proved that the recovered
ganja was of commercial quantity.
11. Learned trial court after considering all the facts and
circumstances of the case found that the prosecution has been able
to prove charges under Section 20(b(ii)(C) of the NDPS Act
beyond all reasonable doubts and accordingly, convicted them for
the charges under Section 20(b(ii)(C) of the NDPS Act.
Submissions on behalf of the Appellants
12. Learned counsel for the appellants assailed the
impugned judgment by submitting that in this case established
procedure for making search, seizure and sampling has not been
followed.
13. Learned counsel submits that Sudama Singh is one
of the witnesses of the seizure list, the place of seizure is said to be
near his hotel but he has not been examined by the prosecution in
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course of trial. Learned counsel submits that the Circle Officer
(PW-6) has stated in his deposition that he signed on the seizure
list but has not said that the samples were taken in his presence.
PW-4, one of the members of the raiding party, has stated in his
deposition that Circle Officer came after preparation of the seizure
list.
14. Learned counsel submits that while PW-7 has stated
that he had seized 19 bundles packed in white colour plastic, PW-6
states that the seized articles were found tied with clothes. Thus,
the description of the seized article provided by PW-6 and PW-7
do not match.
15. Learned counsel submits that from the evidence of
PW-5, it is clear that the statement of the Circle Officer (PW-6)
that 19 bundles were tied with clothes and those were sealed in 19
cloth bags are not supported by PW-5, though he has stated about
taking over the charge of the seized ganja but has not stated that he
had also taken over the charge of the samples which the informant
(PW-7) claimed to have prepared at the spot. Learned counsel
submits that about the sealed ganja also, PW-5 had not found
signature of the seizure list witnesses and the signature of the
accused persons.
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16. Learned counsel submits that the prosecution
witnesses materially differ in their versions with regard to the
description of the seized article, preparation of the seizure list and
sealing of the seized articles as also the sampling of the same.
Learned counsel submits that the prosecution has failed to prove
and establish the reasons and delay in sending the samples.
Accordingly, the impugned judgment of conviction and order of
sentence are bad in the eye of law which are fit to be set aside.
Submissions on behalf of the State
17. On the other hand, learned Additional Public
Prosecutor for the State has defended the impugned judgment
and order by submitting that the prosecution witnesses have
consistently supported the factum of seizure of ganja like
substance from the vehicle and on the seizure list the Circle
Officer (PW-6) put his signature which has been marked as
Exhibit ‘2’. This witness has also supported the factum of
sampling at the place of occurrence and this witness further
deposed about putting his signature on the 19 sealed bundles,
therefore, it is clearly established that on the date of occurrence,
ganja was seized from the possession of the appellants.
18. Learned Additional Public Prosecutor for the State
has submitted that the learned trial court after proper
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appreciation of the evidences available on the record rightly held
the accused persons guilty of the charges levelled against them.
The impugned judgment and order do not require any
interference by this Court.
Consideration
19. Having heard learned counsel for the appellants and
learned Additional Public Prosecutor for the State as also on
perusal of the trial court’s record, it appears as per the prosecution
case that Mithilesh Kumar Pandey (PW-7), who is the informant of
this case, was the Officer Incharge of Mohammadpur Police
Station on 04.07.2019 and on receiving information over
telephone, he had constituted a raiding team. PW-7 intercepted a
container which was coming from the side of Dumariyaghat Pool
(Motihari). According to him, he had arrested the appellants who
were trying to flee away, in the meantime, the Circle Officer (PW-
6) had also arrived at the place of occurrence and some local
persons had assembled. He had seized 19 packets of white colour
which were in plastic and on opening, those were found ganja like
substance. He seized the 19 bundles and according to his
deposition, he had sealed the bundles and also prepared samples
from each of the bundles. He has stated in his deposition that at the
place of occurrence, he had sealed the 19 bundles which were
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seized and had obtained signature of the Circle Officer, the
witnesses, the driver and the co-driver on the same. In his cross-
examination, he has stated that he had received secret information
but from which mobile number he had received the information is
not in his memory. He did not remember the sanha number. PW-7
has stated that Sudama Singh Hotel is near the place of occurrence
and Sudama Singh is one of the witnesses of the seizure list. This
Court, however, finds that Sudama Singh has not been examined
by the prosecution in course of trial. PW-7 has stated that he had
taken the ganja to the Malkhana where it was kept at 20:45 hours.
20. On going through the evidence of the Circle Officer
(PW-6), it is found that at about 03:30 PM, he received
information from the Officer Incharge of Mohammadpur Police
Station about the information with regard to the arrival of some
narcotics from the side of Dumariya. He has stated that when he
reached near Sudama Singh Hotel, he found that police team had
already arrived there and they had stopped the container, they had
caught hold of the driver and the co-driver. It is, thus, evident from
the deposition of PW-6 that he reached at the place of occurrence
i.e. near the Sudama Singh Hotel after the driver and co-driver
were already apprehended and the container was intercepted.
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21. PW-6 has stated that in course of search in the cabin
of the vehicle, 19 bundles tied with clothes were found. On
opening of the same, the substance which was found in the
‘puriyas’ was ganja like substance. As regards the description of
the seized article, this Court finds that while PW-7 has stated that
he had seized 19 bundles packed in white colour plastic, PW-6
states that the seized articles were found tied with clothes and
there were ‘puriyas’ in the bundles. Thus, the description of the
seized article provided by PW-6 and PW-7 do not match.
22. This Court further finds that according to PW-6,
seizure list was prepared from 05:00 PM to 07:30 PM. In this
regard, PW-7 has stated that the seizure list was prepared from
16:45 hours but he cannot say that till what time, it continued. In
paragraph ’19’ of his deposition, the Circle Officer (PW-6) has
stated that the ganja was not sealed by him, police had sealed the
ganja in his presence and the ganja was sealed in a cloth bag. In
19 cloth bags, ganja was sealed, on the sealed bundles, his
signature was taken but this witness has clearly stated that the
signature of the witnesses and the signature of the accused were
not taken on the sealed articles. This Court, therefore, finds that
while PW-7 claimed in his evidence that he had obtained the
signature of the witnesses, the driver and the co-driver on the
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sealed bundles, on this point also, the Circle Officer (PW-6) has
not supported his version.
23. On going through the evidence of the I.O. (PW-5), it
is noticed that he claims his presence at the place of occurrence
when the seizure was made. He has stated that he was present near
the Sudama Singh Shop. He has, however, not given the
description of the seized articles in his deposition. He had not
signed on the seizure list. PW-5 has stated that in course of
investigation, at the time of taking charge of the investigation, he
had taken possession of the FIR and the seizure list, thereafter he
had taken charge of the seized ganja, vehicle, mobile and money
but he had not mentioned in the case diary that he had taken the
charge of ganja. PW-5 has stated that ganja was kept in a godown
of the police station but he had not recorded that when the ganja
was kept in Thawe godown and at what time, the same was kept
there. He could not say the register number of the godown and the
same has not been mentioned in the case diary. It is important to
note that in paragraph ’16’ of his deposition, PW-5 has stated that
he had not sealed the ganja but he had seen the seal on which there
was signature of the Anchala Adhikari (PW-6) and Mithilesh,
Officer Incharge (PW-7). According to him, the sealed ganja was
in a plastic panni which was of white colour. From the evidence of
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PW-5, therefore, it is clear that the statement of the Circle Officer
(PW-6) that 19 bundles were tied with clothes and those were
sealed in 19 cloth bags are not supported by PW-5. He has stated
about taking over the charge of the seized ganja but has not stated
that he had also taken over the charge of the samples which the
informant (PW-7) claimed to have prepared on the spot. On the
sealed ganja also, PW-5 had not found signature of the seizure list
witnesses and the signature of the accused persons.
24. At this stage, this Court finds that PW-1, PW-2, PW-
3 and PW-4 are either the Sub-Inspector of Police (Probation or
Sepoys) who were members of the raiding party. PW-1 has stated
that in this presence, the 19 bundles kept in white colour
polythenes were seized. In paragraph ’12’ of his deposition, he has
stated that for examination, samples were taken out from the 19
bundles and the remaining ganja were sealed. PW-1 has not stated
that the signature of the accused and the witnesses were obtained
on the samples or on the sealed ganja. He has stated that he has
stated in paragraph ’27’ that for examination, samples were
prepared in two ‘dibbas’ which were sealed. This witness has
stated that on the samples, the signature of the witnesses and
accused were taken but he has not stated that the signature of PW-
7 and the Circle Officer (PW-6) were also taken on the sealed
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‘dabba’. While PW-6 has stated about the preparation of samples
from 19 bags, PW-1 has stated about the preparation of only two
samples.
25. PW-2 has stated that 19 bundles of ganja were
seized but he cannot give the description of the bundles. He had
taken the seized bundles on truck to the police station but in the
police station, what kind of documents were made cannot be said.
PW-2 has not stated about the preparation of samples in presence
of the witnesses and the accused. He has not stated that on the
samples, signature of the accused were taken.
26. Jitendra Kumar (PW-3), who is another Sepoy, was
also a member of the raiding party. He has stated that the ganja
was weighed in his presence and two samples were taken out in his
presence which were sealed. He has stated about taking signature
of the Circle Officer, seizure list witnesses and the accused on the
seizure list but has not stated that the signature of the seizure list
witnesses and the accused were taken on the sealed articles. He has
stated that after weighing, the ganja was kept in a ‘bora’ (jute bag)
in the godown of the police station but nothing was written on the
said ‘bora’ and he cannot say that by which thing the ‘bora’ was
sealed.
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27. Ram Parvesh Prasad (PW-4) is the another witness
who has stated that at the place of occurrence, three papers were
prepared. He remembered that the seizure list was prepared but he
did not remember that what other papers were prepared. The
seizure list was in three pages. This witness has stated in paragraph
’20’ of his deposition that after the seizure list had been prepared,
CO Sahab reached there, he immediately amended his statement
and said that CO reached earlier. As regards the sampling of ganja,
this witness has stated that he had seen the seized ganja kept in
‘dabba’ and on the said sample, the signature of Bada Babu and
CO Sahab were present. In paragraph ’27’, he has stated that the
ganja was kept in a room in police station and it was spread in the
room.
28. From the close scrutiny of the evidence of the
prosecution witnesses, this Court finds that the prosecution
witnesses materially differ in their version with regard to the
description of the seized article, preparation of the seizure list,
sealing of the seized articles, sampling of the same and custody of
the ganja.
29. This Court has perused the trial court’s records and
finds that after seizure of the articles, the I.O. sent the First
Information Report, seizure list, arrest memo, checklist and
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forwarding memo to the learned Special Judge on 05.07.2019. The
order dated 05.07.2019 would not show that the seized articles
were produced before the court for certification of inventory. The
I.O. neither produced the samples which were said to have been
prepared at the place of occurrence nor sought certification of the
samples by the court.
30. The ordersheet further discloses that on 10.07.2019,
one application was filed in the court in which permission was
sought to send the sample of ganja to the Forensic Science
Laboratory, Kolkata. The learned court ordered for sending the
sample but even in this order of the said court, there is no talk of
certification of inventory, production of the seized ganja and in
fact, no inventory of the seized ganja was ever produced in the
court.
31. It is also evident from the entire materials on the
record that the sampling was not done in presence of a Magistrate
and even though the samples were prepared as claimed by PW-7
on the spot, the witnesses are at material variance with regard to
the manner and number of samples prepared on the spot. Most of
the witnesses have stated that the signature of the seizure list
witnesses and the accused were not obtained on the sealed bags
and the samples.
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32. As regards seizure of the ganja, the only seizure list
witness who deposed is Satyendra Manjhi (PW-9). He has stated
that seizure list was prepared in his presence and he had put his
thumb impression but in cross-examination, PW-9 has stated that
ganja was not seized in his presence, he is an illiterate person and
he had put his thumb impression on asking of Darogaji. The hotel
owner Sudama Singh has not been examined in course of trial.
33. At this stage, this Court reproduces Section 52A of
the NDPS Act as under:-
“1[52A. Disposal of seized narcotic drugs and
psychotropic substances.–2[(1) The Central
Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class
of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of by
such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.]
(2) Where any 3[narcotic drugs, psychotropic
substances, controlled substances or conveyances] has
been seized and forwarded to the officer-in-charge of
the nearest police station or to the officer empowered
under Section 53, the officer referred to in sub-section
(1) shall prepare an inventory of such 4[narcotic drugs,
psychotropic substances, controlled substances or
conveyances] containing such details relating to their
1. Ins. by Act 2 of 1989, s. 14 (w.e.f. 29-5-1989).
2. Subs. by Act 16 of 2014, s. 17, for sub-section (1) (w.e.f. 1-5-2014).
3. Subs. by Act 16 of 2014, s.17, for “narcotic drug and psychotropic substance” (w.e.f. 1-5-2014).
4. Subs. by Act 16 of 2014, s. 17, for “narcotic drug and psychotropic substances” (w.e.f. 1-5-2014)
Patna High Court CR. APP (DB) No.1093 of 2023 dt.14-07-2025
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numbers or such other identifying particulars of the
4
[narcotic drugs, psychotropic substances, controlled
substances or conveyances] or the packing in which they
are packed, country of origin and other particulars as the
officer referred to in sub-section (1) may consider
relevant to the identity of the 4[narcotic drugs,
psychotropic substances, controlled substances or
conveyances] in any proceedings under this Act and
make an application, to any Magistrate for the purpose
of–
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate,
photographs of 5[such drugs, substances or conveyances]
and certifying such photographs as true; or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such Magistrate
and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub-section (2),
the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an
offence under this Act, shall treat the inventory, the
photographs of 4[narcotic drugs, psychotropic
substances, controlled substances or conveyances] and
any list of samples drawn under sub-section (2) and
certified by the Magistrate, as primary evidence in
respect of such offence.]”
34. The aforesaid provision of the NDPS Act has come up
for consideration recently before the Hon’ble Supreme Court in the
case of Bharat Aambale versus State of Chhattisgarh reported in
2025 SCC OnLine SC 110, the Hon’ble Supreme Court having
reviewed the entire case laws on the subject summarised the law on
the subject in the following words:-
4. Subs. by Act 16 of 2014, s. 17, for “narcotic drug and psychotropic substances” (w.e.f. 1-5-2014)
5. Subs. by Act 16 of 2014, s. 17, for “such drugs or substances” (w.e.f. 1-5-2014).
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“50. We summarize our final conclusion as under:–
(I) Although Section 52A is primarily for the
disposal and destruction of seized contraband in a
safe manner yet it extends beyond the immediate
context of drug disposal, as it serves a broader
purpose of also introducing procedural safeguards in
the treatment of narcotics substance after seizure
inasmuch as it provides for the preparation of
inventories, taking of photographs of the seized
substances and drawing samples therefrom in the
presence and with the certification of a magistrate.
Mere drawing of samples in presence of a gazetted
officer would not constitute sufficient compliance of
the mandate under Section 52A sub-section (2) of
the NDPS Act.
(II) Although, there is no mandate that the drawing
of samples from the seized substance must take
place at the time of seizure as held in Mohanlal
(supra), yet we are of the opinion that the process of
inventorying, photographing and drawing samples of
the seized substance shall as far as possible, take
place in the presence of the accused, though the
same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of
seized substance prepared in substantial compliance
of the procedure prescribed under Section 52A of the
NDPS Act and the Rules/Standing Order(s)
thereunder would have to be mandatorily treated as
primary evidence as per Section 52A subsection (4)
of the NDPS Act, irrespective of whether the
substance in original is actually produced before the
court or not.
(IV) The procedure prescribed by the Standing
Order(s)/Rules in terms of Section 52A of the NDPS
Act is only intended to guide the officers and to see
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that a fair procedure is adopted by the officer in-
charge of the investigation, and as such what is
required is substantial compliance of the procedure
laid therein.
(V) Mere non-compliance of the procedure under
Section 52A or the Standing Order(s)/Rules
thereunder will not be fatal to the trial unless there
are discrepancies in the physical evidence rendering
the prosecution’s case doubtful, which may not have
been there had such compliance been done. Courts
should take a holistic and cumulative view of the
discrepancies that may exist in the evidence adduced
by the prosecution and appreciate the same more
carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires
confidence and satisfies the court as regards the
recovery as-well as conscious possession of the
contraband from the accused persons, then even in
such cases, the courts can without hesitation proceed
to hold the accused guilty notwithstanding any
procedural defect in terms of Section 52A of the
NDPS Act.
(VII) Non-compliance or delayed compliance of the
said provision or rules thereunder may lead the court
to drawing an adverse inference against the
prosecution, however no hard and fast rule can be
laid down as to when such inference may be drawn,
and it would all depend on the peculiar facts and
circumstances of each case.
(VIII) Where there has been lapse on the part of the
police in either following the procedure laid down in
Section 52A of the NDPS Act or the prosecution in
proving the same, it will not be appropriate for the
court to resort to the statutory presumption of
commission of an offence from the possession of
Patna High Court CR. APP (DB) No.1093 of 2023 dt.14-07-2025
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illicit material under Section 54 of the NDPS Act,
unless the court is otherwise satisfied as regards the
seizure or recovery of such material from the
accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first
lay the foundational facts to show that there was
non-compliance of Section 52A, either by leading
evidence of its own or by relying upon the evidence
of the prosecution, and the standard required would
only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-
compliance of Section 52A of the NDPS Act, the
onus would thereafter be on the prosecution to prove
by cogent evidence that either (i) there was
substantial compliance with the mandate of Section
52A of the NDPS Act OR (ii) satisfy the court that
such non-compliance does not affect its case against
the accused, and the standard of proof required
would be beyond a reasonable doubt.”
35. In yet another recent judgment in the case of
Surepally Srinivas versus The State of Andhra Pradesh (Now
State of Telangana ) reported in 2025 SCC OnLine SC 683, the
Hon’ble Supreme Court has once again allowed the appeal after
holding that there has been clearly non-compliance with the
provision contained under Section 52A of the NDPS Act. The
Hon’ble Apex Court has refused to accept the plea of the
prosecution that even though the seized contraband was not
properly sealed and there may not have been strict compliance of
the Standing Order No. 1/89, the prosecution case would succeed.
The Hon’ble Supreme Court found in the said case that the seized
contraband was not properly sealed and the seized contraband was
not produced before the trial court for about 15 days. The Hon’ble
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22/23
Apex Court was of the view that the possibility of tampering
during this 15 days’ period cannot be totally ruled out. It has been
held that there has been no substantial compliance of the standing
order.
36. When we apply the facts of the present case, it is
found that in the present case also, the prosecution has not
substantially complied with the mandate of Section 52A of the
NDPS Act. Sub-Section (4) of Section 52A provides that the
inventory, the photographs of narcotic drugs, psychotropic
substances, controlled substances or conveyances and any list of
samples drawn under Sub-Section (2) certified by the Magistrate
shall be primary evidence in respect of such offence. In this case,
there is neither the inventory, the photographs, nor the list of
samples certified by the Magistrate. The most important seizure
list witness Sudama Singh who could have proved the place of
seizure and the preparation of seizure list has not been examined
by the prosecution for no plausible reason. We have already
pointed out the vital discrepancies/ differences in the deposition of
the prosecution witnesses, therefore, to this Court, there is no iota
of doubt that the prosecution has failed to place on record the
primary evidences.
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37. In the opinion of this Court, the learned trial court
has not been able to properly appreciate the evidences on the
record keeping in view the law on the subject. We, therefore, set
aside the impugned judgment and order of the trial court.
38. The appellants are acquitted of the charges under
Section 20(b)(ii)(C) of the NDPS Act giving them benefit of
doubt. They are said to be in jail, they shall be released forthwith,
if not wanted in any other case.
39. Let a copy of this judgment together with the trial
court’s records be sent to the learned trial court.
(Rajeev Ranjan Prasad, J)
( Ashok Kumar Pandey, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 16.07.2025 Transmission Date 16.07.2025