Patna High Court
Indrapal Singh @ Indal Singh vs The State Of Bihar on 6 August, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ajit Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.825 of 2023
Arising Out of PS. Case No.-24 Year-2021 Thana- JANDAHA District- Vaishali
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Indrapal Singh @ Indal Singh, S/O Ram Ratan Singh, R/O Vill- Pusaina, P.S.
Jail Chaura, Dist- Mainpuri, State- Uttar Pradesh.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. Manoj Kumar Singh, Advocate
Mr. Rishup, Advocate
Mr. Saurabh Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE AJIT KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 06-08-2025
Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 15.06.2023 (hereinafter referred to as
the 'impugned judgment') and the order of sentence dated
17.06.2023 (hereinafter referred to as the 'impugned order') passed
by learned Additional Sessions Judge-I-cum-Special Judge (NDPS
Act), Vaishali at Hajipur (hereinafter referred to as the 'learned trial
court') in NDPS No. 21 of 2021 arising out of Jandaha P.S. Case
no. 24 of 2021. By the impugned judgment and order, the appellant
has been convicted for the offence punishable under Sections 20(b)
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(ii)(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances
Act (in short 'NDPS Act') and has been ordered to undergo
rigorous imprisonment for 10 years with a fine of Rs.1 lakh under
Section 20(b)(ii)(c) of the NDPS Act and in default of payment
fine, he shall further undergo rigorous imprisonment for two years.
He has also been ordered to undergo 12 years rigorous
imprisonment under Section 23(c) of the NDPS Act with a fine of
Rs.1 lakh and in default of payment of fine, he shall further
undergo rigorous imprisonment for two years. Both the sentences
are to run concurrently.
Prosecution Case
3. The prosecution case is based on the self statement of
Pradeep Kumar, Dy.SP (P) cum SHO, Jandaha, P.S.+District-
Vaishali (PW-2) recorded on 02.02.2021 at about 6.15 AM at
Village-Kazri Bujurg, P.S.-Jandaha, District-Vaishali near Amar
Nath Rai's Poultry farm. In his self statement, the informant has
stated that on 01.02.2021 at about 16.00 hours he received a secret
information that near the poultry farm of Amar Nath Rai a
container was parked which was loaded with black coloured boxes
and one by one the boxes were being unloaded and were being
kept in the 'baithaka' near the poultry farm of Amarnath Rai in
which seems to be some suspicious articles were there. After
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recording the Sanha and after informing the superior officer, as per
the direction of superior officer, a team was constituted consisting
of the informant Pradip Kumar, ASI Suresh Kumar, ASI Subodh
Kumar Singh, ASI Sivendar Narayan Singh, ASI Manish Kumar
Singh and ASI Awadesh Prasad. The team proceeded from the
police station along with BMP Hawaldar 143 Sesnath Rai,
constable 621 Ramesh Kumar Singh, constable 06 Sanjeet Kumar,
dafadar 02 Tripurari Chaudhary and chaukidar 2/14 Satish Kumar
with government vehicles at 16:20 hours, for verifying the secret
information At 17:00 hours, they arrived at Village- Kajari Bujurg
at the poultry farm of Amarnath Rai. They found that a container
was parked there and 4-5 persons were unloading black coloured
boxes. As soon as, they saw the police they tried to flee away.
They were chased by the police and one of them was caught who
disclosed his name as Indrapal Singh, son of Ram Ratan, Village-
Pusaina, Post-Jail Chauraha, District- Mainpuri (Uttar Pradesh)
and disclosed himself to be the driver of the vehicle. On query, he
stated the name of Amarnath Rai among the persons who fled
away from the place of occurrence. He failed to disclose the name
of other persons. The nearby people assembled and the local
chaukidar also identified that Amarnath Rai was one of the persons
who fled away from the place of occurrence. On search, from the
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boxes loaded on the container smell like ganja was coming. On
query regarding the boxes, the apprehended container driver
disclosed that there was ganja in the box. The driver of the vehicle
was informed by the informant that he has right to be searched
before a gazetted officer. The driver of the vehicle namely Indrapal
consented to be searched by any officer, however the SDM, Mahua
was requested for appointment of a gazetted officer. Circle Officer
Sri Nishant Kumar of Jandaha came to the place of occurrence and
after taking consent from the apprehended person for search,
Notice u/s 50 of NDPS Act was served upon the accused Indrapal.
In presence of two independent witnesses namely Shankar Paswan
(PW-11), Son of Surendar Paswan and Rakesh Kumar (PW-8), Son
of Umakant Singh and the Circle Officer, Jandaha (PW-12), the
search was made and from the possession of accused Indrapal
Singh one mobile was recovered. Thereafter, the container truck
bearing registration no. HR-55-AG-5186 was searched from which
several articles as described in the FIR were recovered. It is further
alleged that thereafter the poultry farm of Amar Nath Rai was also
searched and 8 kgs 100 gms ganja was recovered which was in
total 64 packets. 100 grams of Ganja were packed inside four
envelopes as sample for testing. Thereafter, seizure list was
prepared and a copy of the same was handed over to truck driver.
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The apprehended accused Inderpal disclosed that one Pradeep
Kumar, owner of Gorakhnath Transport Coporation, Gurgaon,
Haryana and his Munshi Ravi Kumar had loaded the goods on to
the vehicle for delivery to Amarnath Rai. Earlier, on two occasions
also, he had delivered the goods to Amarnath Rai. Thereafter
sampling of seized ganja was done which details have been given
in the FIR. The informant claimed that Amarnath Rai, Sri Pradeep
Kumar, owner of Gorakhnath Transport Coporation, Gurgaon,
Haryana, his Munshi Ravi Kumar and driver of container Inderpal
were involved in smuggling of contraband articles.
4. On the basis of this written application, Jandaha P.S.
Case No. 24 of 2021 dated 02.02.2021 was registered under
Sections 8, 20(b)(ii)(c), 24, 25, 29 of the NDPS Act against four
accused persons, namely, (1) Amarnath Rai, (2) Owner of
Gorakhnath Transport Corporation, (3) Munshi Ravi Kumar and
(4) Indrapal Singh (this appellant). After investigation police
submitted chargesheet being Chargesheet No. 75 of 2021 dated
28.04.2021
against this appellant keeping investigation pending
against other accused persons under Sections 8, 20(b)(ii)(c), 24,
25, 29 of the NDPS Act. Learned Sessions Judge, Vaishali at
Hajipur vide order dated 09.06.2021 took cognizance of the
offences under above mentioned Sections and also directed to open
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supplementary record of the remaining accused persons, namely,
(1) Amarnath Rai, (2) Owner of Gorakhnath Transport Corporation
and (3) Munshi Ravi Kumar. Later on, Amarnath Rai was
separately chargesheeted. Both the records were amalgamated vide
order dated 29.09.2022 passed by learned Special Court, NDPS.
5. Charges were read over and explained to the accused
in Hindi to which they pleaded not guilty and claimed to be tried,
accordingly, vide order dated 02.03.2022, charges were framed
under Sections 20(b)(ii)(c), 23(c) of the NDPS Act.
6. In course of trial, the prosecution has examined
altogether thirteen witnesses and exhibited several documentary
evidences. The description of prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution Witnesses
P.W.-1 Shivendra Narayan Singh
P.W.-2 Pradip Kumar
P.W.-3 Suresh Kumar
P.W.-4 Subodh Kumar Singh
P.W.-5 Awdhesh Prasad
P.W.-6 Manish Kumar Singh
P.W.-7 Satish Kumar
P.W.-8 Rakesh Kumar
P.W.-9 Md. Sayeed Alam
P.W.-10 Ajay Kumar
P.W.-11 Sankar Paswan
P.W.-12 Nishant Kumar
P.W.-13 Om Prashad Kushwaha
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Exhibit-1 Carbon copy of notice u/s 50 of NDPS Act.
Exhibit-2 Seizure list
Exhibit-3 Arrest memo
Exhibit-4 fard-e-bayan (Self Statement)
Exhibit-5 registration of FIR
Exhibit-6 Formal FIR
Exhibit-7 Confessional statement of Indrapal Singh
Exhibit-8 Signature of Rakesh Kumar on the seizure list
Exhibit-9 Signature of Rakesh Kumar on the arrest
memo
Exhibit-10 FSL report
Exhibit-11 Report of FSL by name of Dist. & Sessions
Judge
Exhibit-12 Carbon copy of petition for sample test
Exhibit-13 Order of learned District and Sessions Judge
on sample test petition
Exhibit-13/1 charge sheet number 75/2021, dated
28.04.2021
Exhibit-14 Confessional statement of Amarnath Rai
Exhibit-15 Charge sheet no. 273/2021, dated 14.12.2021
Exhibit-16 Signature of Sankar Paswan on seizure list
Exhibit-17 signature of Sankar Paswan on arrest memo
Exhibit-18 Signature of Nishant Kumar on consent form
Exhibit-19 Signature of Nishant Kumar on search list
Exhibit-19/1 Signature of Om Prashad Kushwaha on
malkhana
Exhibit- 20 malkhana register no. 6/2021
Exhibit-21 Certificate of destruction
Exhibit-22 certificate of Judicial Magistrate
First Class Mukesh Kumar
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7. Thereafter, the statement of the accused were recorded
under Section 313 of the CrPC. They denied all the allegations
and took a plea that they are innocent.
8. The defence exhibited several documentary evidences
on behalf of Amarnath Rai.
List of Exhibits on behalf of Amarnath Rai
Exhibit-A Aadhar card of Amarnath Rai.
Exhibit-B Voter list
Exhibit-B/1 Voter list
Exhibit-C SLC of Amarnath Rai,
Exhibit-D Admit card of Amarnath Rai.
Exhibit-E Mark sheet of matriculation of Amarnath
Rai.
Exhibit-F Provisional certificate of Amarnath
Rai(Matric),
Exhibit-G Graduation mark sheet of Amarnath Rai,
Exhibit-H Admit cart of graduation of Amarnath Rai,
Exhibit-I Caste certificate of Amarnath Rai
Exhibit-J Genealogical table of Amarnath Rai
Findings of the Learned Trial Court
9. After analysing the evidences available on the record,
the learned trial court held that accused Amarnath Rai was named
by co-accused Indrapal Singh. Apart from that statement, nothing
more has been produced by the prosecution. No investigation has
been done on the possession of the poultry farm and ‘baithka’. No
person from the village has been made seizure list witness. The
Station House Officer (in short ‘SHO’) (PW-2) of Jandaha P.S.
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deposed that after inquiry, he speculated that the house of
Amarnath Rai was in the village of occurrence but in cross-
examination, he has stated in paragraph ’14’ that Amarnath Rai has
no house in that village. The seizure list witnesses have declined to
know anything about Amarnath Rai. PW-4 has stated that people
were telling that ‘baithka’ belonged to one Bali Rai. I.O. (PW-10)
has stated that he did not inquire from the villagers to ascertain
that the poultry farm belonged to Amarnath Rai. He had not
recorded statement of the villagers adjacent to the place of
occurrence. Amarnath has stated in his Section 313 CrPC
statement that he had no poultry farm. The trial court held that
possession of the poultry farm and ‘baithka’ regarding accused
Amarnath was doubtful. The prosecution failed to prove the
fundamental aspect of possession as enshrined under Section 54 of
the NDPS Act. Thus, Amarnath Rai has been acquitted of the
charges giving him benefit of doubt.
10. As regards this appellant, the learned trial court after
scrutinizing the evidences available on the record found that he
admittedly, was the custodian of the container truck from which
contraband was recovered. Learned trial court found that the
appellant has admitted in his statement under Section 313 CrPC
that he was the driver of the truck bearing no. HR-55-AG-5186.
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11. Learned trial court observed that the appellant cannot
escape from his criminal liability regarding the possession of the
contraband, moreover, no evidence has been adduced by him for
rebuttal of the presumption under Section 54 of the NDPS Act.
12. Learned trial court further found that the appellant
has been arrested on the spot along with the contraband. Learned
trial court observed that the appellant had opportunity to explain
the circumstances under Section 313 CrPC but he has answered
the question by saying that “he does not know” or “it is not true”.
Apparently, the answer given by him is not sufficient to rebut the
reverse presumption or to explain the incriminating circumstances.
Accordingly, learned trial court held the appellant guilty of the
offences punishable under Sections 20(b)(ii)(c) and 23(c) of the
NDPS Act.
Submissions on behalf of the appellant
13. Learned counsel for the appellant submits that the
findings of the learned trial court as regards the present appellant
are perversed, erroneous and against the weight of the evidences
available on the record. The seized articles were not produced
before the learned trial court and as per the written report and
seizure list, the search was conducted on 01.02.2021 at about
17:15 Hrs to 02.02.2021, 06:15 AM but the case was registered on
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02.02.2021 at 9:30 Hrs. The accused (appellant) was sent to
judicial custody on 03.02.2021.
14. It is submitted that as per the written report and
seizure list, from fifteen tin boxes and four plastic crates, total
sixty four bundle ganja was recovered which weighed eight (8)
quintals and 100 grams out of which the informant collected
samples of 25-25 grams in four envelopes. The said collected
samples were produced before the learned Magistrate, 1st Class
and samples were marked ‘L-1/1’, ‘L-2/1’ in which 25-25 grams
each in two packets were there.
15. It is submitted that as per the Forensic Science
Laboratory (in short ‘FSL’) report vide letter dated 18.11.2021, the
FSL received two tin dabba (box) previously marked as ‘L-1/1’
and ‘L-2/1’ said to contain sample of ganjas received through
messenger on 12.03.2021. In this regard, Memo No. 260 dated
09.02.2021 and the deposition of PW-9 have been placed before
this Court. It is pointed out that the samples were sent to the FSL
after about one month and ten days. It is also not known that how
the samples were sealed in two tin dabba when the written report
says that samples were kept in four envelopes.
16. It is also submitted that the samples were not
collected in accordance with the Standing Instruction No. 1/88
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dated 15.03.1988. This would create huge doubt about the
genuineness/authenticity of the samples.
17. Learned counsel submits that the two seizure list
witnesses, who are PW-8 and PW-11, have not supported the
prosecution story. Both have been declared hostile. It is submitted
that the prosecution has not been able to prove that where were the
samples kept for one month ten days. The certificate of destruction
(Exhibit ’21’) would show that the gross weight of the drug seized
was 800 kg and 100 gram but after taking sample, the net weight
of the narcotic destroyed was 760 kg 400 gram. It is pointed out
that only 760.500 kg of net weight of narcotic was received in the
dedicated godown. The huge deficit of about 40 kg of the ganja
only shows that it was not duly seized and sealed.
18. It is further submitted that from Exhibit ’22’ it would
appear that it has been signed by the SHO, Jandaha on 25.09.2022,
Inspector, Jandaha on 28.09.2022 and dedicated godown In-charge
on 28.09.2022 but it has been signed by a learned Judicial
Magistrate 1st Class on 14.11.2022. A perusal of Exhibit ’22’
would show that there is an endorsement of certification that the
entries made are correct and samples were drawn in my presence.
A perusal of this would show that the total weight on the date of
seizure was 800.100 kg, weight of load/bunch wise has been
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shown as Lot A – 240.300 kg, Lot B – 559.800 kg. Number of
samples drawn are 25-25 grams each from two lots (total 2 x 2 = 4
samples). The remaining quantity after doing all the formalities
have been shown as 760.500 kg. It is evident that as per this
document, the sampling was done in presence of the Magistrate,
the Magistrate has signed this document on 14.11.2022 whereas
the FSL report as contained in Letter No. 859 is dated 19.11.2021
and it refers Letter No. 260 dated 09.02.2021 of the District and
Sessions Judge, Hajipur (Vaishali). The FSL report (Exhibit ’10’)
clearly proves that the District and Sessions Judge, Hajipur, Vaisali
directed vide Memo No. 260 dated 09.02.2021 advising dispatch
of one parcel which was received through Chowkidar 02/17
Santosh Kumar Jha in the Office of FSL on 12.03.2021. Learned
counsel submits that apparently no certification of inventory or
sampling was done in presence of the Magistrate, therefore, the
search, seizure and sampling in this case which are required to be
proved for laying down the foundational facts are highly doubtful.
19. It is further submitted that in this case the Seizing
Officer Pradeep Kumar (PW-2) has stated that he had received a
secret information at 4:00 PM on 01.02.2021 that in the poultry
farm and baithka of Amarnath Rai in village Kajri Bujurg one
black colour box is being unloaded from a container truck. PW-2
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had recorded this secret information in the Station Diary and gave
information to the senior police officer. It is submitted that in such
circumstance the prosecution was obliged to bring on record the
station diary entry. Reliance has been placed upon Section 42 of
the NDPS Act and it is submitted that the same is mandatory hence
non-observance of the safeguards provided to the accused under
Section 42 of the NDPS Act would prove fatal to the prosecution
case. Learned counsel has relied upon the judgments of the
Hon’ble Supreme Court in the case of Dharamveer Prasad vs.
State of Bihar and Another reported in (2020) 12 SCC 492 and
Darshan Singh vs. State of Haryana reported in (2016) 14 SCC
358.
20. It is lastly submitted that while acquitting the
accused Amarnath Rai, the learned trial court has disbelieved the
prosecution case with regard to the possession of the poultry farm
and baithka regarding accused Amarnath Rai. It has come in the
finding of the learned trial court that no evidence has been
adduced by the prosecution for the rebuttal of the presumption
under Section 54 of the NDPS Act. The learned trial court has
failed to appreciate that the statement of an accused recorded
under Section 313 CrPC cannot be used as an evidence against
him. In this case, the attention of the appellant was drawn towards
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the evidence of the prosecution witnesses. The learned trial court
has taken a view that the appellant being the custodian of the
container truck from which the contraband was recovered and that
as per his own admission in statement under Section 313 CrPC, he
was driver of the truck, therefore, he cannot escape from the
criminal liability regarding the possession of the contraband is an
erroneous consideration.
Submissions on behalf of the State
21. Mr. Ajay Kumar Mishra, learned Additional Public
Prosecutor for the State, has contested the appeal. This Court
called upon learned Additional Public Prosecutor to demonstrate
from the records that there was any certification of the inventory
after the seizure of the contraband by a learned Magistrate and that
this sampling was done in presence of the Magistrate. Learned
Additional Public Prosecutor has clearly stated that after going
through the records of the learned trial court, he did not find
certification of inventory. He has further submitted that in this
case, no sampling was done in the presence of the Magistrate.
Analysis of Evidences – Consideration and Opinion
22. Having regard to the submissions recorded
hereinabove and upon perusal of the records, this Court finds that
according to the self-statement of Pradeep Kumar (PW-2), he had
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received a secret information on 01.02.2021 at 16:00 Hrs. that a
container truck is standing near poultry farm/baithka of Amarnath
Rai and in the said truck black colour boxes are loaded which are
being unloaded in the poultry farm/baithka of Amarnath Rai. The
information was that there seems to be some suspicious article.
PW-2 recorded a ‘sanha’, gave information to his senior police
officers, constituted a team and reached the poultry farm/baithka
of Amarnath Rai at 17:00 Hrs. They found that one container
vehicle was standing and 4-5 persons were unloading black colour
tin boxes. When they saw the police party, they started fleeing
away. They were chased and one person was caught, he was taken
into custody and on interrogation he disclosed his name as
Indrapal Singh (the appellant). On seeing the police action, the
people from the neighbours and some passersby assembled there.
Those assembled persons and local Chowkidar identified one
person who had fled away as Amarnath Rai, son of late
Muneshwar Rai of Village-Kutubpur, P.S.-Bidupur, District-
Vaishali, at present, father-in-law Balli Rai, Village-Kajri Bujurg,
P.S.-Jandaha, District-Vaishali.
23. It is evident from the self-written statement of PW-2
that he had recorded ‘sanha’ of the secret information. In this
regard, Section 42 of the NDPS Act reads as under:-
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without warrant or authorisation.–(l) Any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or
any other department of the Central Government
including para-military forces or armed forces as is
empowered in this behalf by general or special
order by the Central Government, or any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs control,
excise, police or any other department of a State
Government as is empowered in this behalf by
general or special order of the State Government, if
he has reason to believe from personal knowledge
or information given by any person and taken down
in writing that any narcotic drug, or psychotropic
substance, or controlled substance in respect of
which an offence punishable under this Act has been
committed or any document or other article which
may furnish evidence of the commission of such
offence or any illegally acquired property or any
document or other article which may furnish
evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in
any building, conveyance or enclosed place, may
between sunrise and sunset,–
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other
article and any animal or conveyance which he has
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this Act and any document or other article which he
has reason to believe may furnish evidence of the
commission of any offence punishable under this
Act or furnish evidence of holding any illegally
acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act:
1
[Provided that in respect of holder of a licence
for manufacture of manufactured drugs or
psychotropic substances or controlled substances
granted under this Act or any rule or order made
thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
Provided further that] if such officer has reason to
believe that a search warrant or authorisation
cannot be obtained without affording opportunity
for the concealment of evidence or facility for the
escape of an offender, he may enter and search
such building, conveyance or enclosed place at
any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information
in writing under sub-section (1) or records
grounds for his belief under the proviso thereto,
he shall within seventy-two hours send a copy
thereof to his immediate official superior.”
1. Subs. by Act 16 of 2014, s. 16, for “Provided that” (w.e.f. 1-5-2014).
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24. It is evident from a bare reading of Section 42 and its
subsections that the information received from any person or reason to
believe from personal knowledge are required to be taken down in
writing. According to subsection (2), where an officer takes down any
information in writing under subsection (1) or records grounds for his
belief under the proviso thereto, he shall within 72 hours send a copy
thereof to his immediate official superior. In the case of Dharamveer
Prasad (supra), the Hon’ble Supreme Court had occasion to consider
Section 42(1) and 42(2) of the NDPS Act. Paragraph ‘3’ and ‘4’ of the
said judgment are being reproduced hereunder for a ready reference:-
3. The matter lies within a short compass in view of the
precise argument that has been made. This is with regard to the
violation of Section 42 of the Act, the purport and effect of
which has been laid down by the Constitution Bench of this
Court in Karnail Singh v. State of Haryana1. Para 35 of the
judgment is extracted below: (SCC pp. 554-55)
“35. In conclusion, what is to be noticed is that Abdul
Rashid2 did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham3 hold that the requirements of Sections 42(1)
and 42(2) need not be fulfilled at all. The effect of the two
decisions was as follows:
(a) The officer on receiving the information [of the
nature referred to in sub-section (1) of Section 42]
from any person had to record it in writing in the
register concerned and forthwith send a copy to his
immediate official superior, before proceeding to take
action in terms of clauses (a) to (d) of Section 42(1).
1 (2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887
2 Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513 : (2000) SCC (Cri) 496
3 Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 : 2001 SCC (Cri) 1217
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(b) But if the information was received when the
officer was not in the police station, but while he
was on the move either on patrol duty or
otherwise, either by mobile phone, or other
means, and the information calls for immediate
action and any delay would have resulted in the
goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in
writing the information given to him, in such a
situation, he could take action as per clauses (a)
to (d) of Section 42(1) and thereafter, as soon as it
is practical, record the information in writing and
forthwith inform the same to the official superior.
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in
regard to writing down the information received
and sending a copy thereof to the superior officer,
should normally precede the entry, search and
seizure by the officer. But in special
circumstances involving emergent situations, the
recording of the information in writing and
sending a copy thereof to the official superior
may get postponed by a reasonable period, that is,
after the search, entry and seizure. The question is
one of urgency and expediency.
(d) While total non-compliance with requirements
of sub-sections (1) and (2) of Section 42 is
impermissible, delayed compliance with
satisfactory explanation about the delay will be
acceptable compliance with Section 42. To
illustrate, if any delay may result in the accused
escaping or the goods or evidence being
destroyed or removed, not recording in writing
the information received, before initiating action,
or non-sending of a copy of such information to
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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the official superior forthwith, may not be treated
as violation of Section 42. But if the information
was received when the police officer was in the
police station with sufficient time to take action,
and if the police officer fails to record in writing
the information received, or fails to send a copy
thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation of
Section 42 of the Act. Similarly, where the police
officer does not record the information at all, and
does not inform the official superior at all, then
also it will be a clear violation of Section 42 of
the Act. Whether there is adequate or substantial
compliance with Section 42 or not is a question of
fact to be decided in each case. The above
position got strengthened with the amendment to
Section 42 by Act 9 of 2001.”
(emphasis in original)
4. From a reading of the judgment of the
Constitution Bench it would appear that the law
laid down in this regard is that the requirements
of Sections 42(1) and 42(2) of the Act should
normally precede the entry, search and seizure by
the Officer but in special circumstances the
recording of information in writing and sending
and copy thereof to the superior officer may be
postponed by a reasonable period and may be
effected after the search, entry and seizure. Such
an exception illustratively has been laid down by
the Constitution Bench to be in a case where the
accused may escape or the goods or evidence
may get destroyed or removed.
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25. In the said case, the Investigating Officer had
received information that the contraband was being carried from
Indo-Nepal border, he had formed a team and moved to Raxaul
from Patna. The vehicle in question had been apprehended and the
contraband was seized at about 6:00 AM on 03.07.2007. No
explanation was offered why the statement had not been recorded
at any anterior point of time and the same was so done after the
seizure was made. The Hon’ble Supreme Court held that there
were other suspicious circumstances affecting the credibility of the
prosecution case. The Investigating Officer had moved to Raxaul
along with a team and two independent witnesses, the said
independent witnesses were not examined and no explanation was
forthcoming on this ground. No memo including the seizure memo
was prepared at the spot and all the papers were prepared on
reaching the Police Station at Patna. In such circumstance, the
Hon’ble Supreme Court held that the prosecution case suffers with
the vice of non-compliance of Section 42 of the Act and the law
laid down by the Constitution Bench in Karnail Singh vs. State of
Haryana reported in (2009) 8 SCC 539. In the present case, it is
evident that the entry made under Section 42 of the NDPS Act has
not been brought on record. There is a non-compliance with the
requirement of Section 42 of the NDPS Act.
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26. In the light of the aforementioned judicial
pronouncements, we would further examine the prosecution case
firstly as per the self-written report. According to this, informant
had contacted the Sub-Divisional Officer, Mahua for appointment
of a Magistrate for purpose of search and on request, the
Anchaladhikari Shri Nishant Kumar (PW-12) had arrived at the
place of occurrence whereafter the search of the appellant was
done after serving a notice under Section 50 of the NDPS Act. The
informant claimed that from amongst the persons present at the
place of occurrence, he took two independent witnesses namely
Shankar Paswan and Rakesh Kumar of village Bishanpur and
Bhagwatipur respectively. He has recorded the description of the
seized articles from the container truck which are of the household
items. He has stated that eight black coloured tin boxes and four
plastic crates and from the seven black coloured boxes found in
course of search of the poultry farm/baithka altogether fifteen
black coloured boxes of tin and four plastic crates in which sixty
four (64) plastic bundles of brown colour were kept, had been
seized. At the place of occurrence itself he had taken weight of the
seized ganja, in presence of the witnesses and the Magistrate. The
total weight was eight quintal 100 grams. He packed 100 grams in
four envelopes from the bundle of ganjas, as sample, thereafter he
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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prepared seizure list of the seized ganja in presence of both the
witnesses and the PW-12. The PW-12 had signed on the seizure
list, a copy of the seizure list was handed over to the driver of the
container truck. He has further stated that the seized sixty four (64)
packet ganja total weight eight (8) quintals were sealed in thirty
three (33) plastic sacks which were marked and sealed. He put a
mark of ‘P-1’ to ‘P-26’ to the seized ganja which were kept in the
seven boxes in the poultry farm/baithka of Amarnath Rai. He
marked ‘P-27’ to ‘P-64’ to the seized ganja of 559.800 kg which
was found in the eight black coloured tin boxes and four plastic
crates from the container truck.
27. In course of trial, Shivendra Narayan Singh (PW-1)
has stated that he was Sub-Inspector in Jandaha Police Station. He
had gone to Kajri Bujurg at 5:00 PM in the team constituted by
Pradeep Kumar (PW-2). He found that the truck was standing and
many suspicious articles were being unloaded by 4-5 persons. He
has stated that the ganja was weighed, sampled and sealed at the
place of seizure. In paragraph ‘5’ of his examination-in-chief, he
has stated that the apprehended accused was brought to Jandaha
Police Station with the articles on 02.02.2021 at 6:00 AM. All the
seized articles were kept in the Malkhana. Container and scooty
were kept in the thana premises. The Investigating Officer had
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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interrogated PW-1. He identified Indrapal Singh but refused to
identify Amarnath Rai as according to him, he had fled away from
the place of occurrence.
In his cross-examination, he has stated that the search had
taken place in his presence but he had not put his signature on the
same. He denied the suggestion that because he was not present at
the place of occurrence so his signature is not there on the seizure
list.
28. Pradeep Kumar (PW-2) is the Seizing Officer who
has reiterated his statement as per the self-statement recorded by
him giving rise to the present case. This witness has stated that the
container was searched in presence of two independent witnesses
and the C.O. Both the seizure list witnesses had put their signature
on the seizure list and C.O. had also put his signature. This witness
identified the appellant but refused to identify Amarnath Rai as
according to him, Amarnath Rai had already fled away from the
place of occurrence.
In his cross-examination, he has stated that he had inquired
about Amarnath Rai, it is true that Amarnath Rai has no home in
Kajri Bujurg. He did not know that the village of Amarnath Rai is
Bidupur which is fifteen kilometers away from the place of
occurrence. This witness did not know the name of father-in-law of
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Amarnath Rai. He has stated that the seizure list was prepared at
the place of occurrence but the case was registered thereafter, the
case number has been written on the seizure list after registration
of the case. From this part of his deposition, it appears that after
recording the ‘sanha’, he constituted a team, intercepted the
container truck from which he claimed to have seized the
contraband but till this time the FIR was not registered.
29. PW-2 has further admitted in paragraph ’22’ that in
the seizure list, no one from the said village where seizure had
taken place was made a seizure list witness. It is not his statement
that nobody from the said village was present at the place of
occurrence or that any person from the said village had refused to
become a seizure list witness. It has come in the self-statement
itself that the seizure list witnesses are from two different villages.
The learned trial court has recorded in its finding that the
independent witnesses who are the seizure list witnesses have
declined to know anything about Amarnath Rai. In this regard,
when the evidence of Rakesh Kumar (PW-8), as seizure list
witness is taken into consideration, it would be found that he has
identified his signature on the seizure list. He has stated that
Darogaji had not seized any article in his presence from the
baithka of Amarnath Rai. He refused to identify Amarnath Rai and
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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Indrapal Singh. This witness has been declared hostile. In his
cross-examination on behalf of accused Amarnath Rai, he has
stated that when he was closing his shop, then his signature was
obtained at the shop by Darogaji saying that nothing would happen
with this, so he had put his signature. His shop was at a distance of
7-8 kilometers from Kajri Bujurg. Shankar Paswan (PW-11) who
is another seizure list witness, has deposed on similar lines. He has
also been declared hostile. He has not identified any of the
accused.
30. PW-2 was suggested by the defence that after the
case was registered at the police station itself he had prepared the
seizure list and got signature of the police station witnesses, which
PW-2 denied. It is evident from the deposition of PW-2 that in
paragraph ‘5’ of his deposition, he has stated that he got the self-
written statement prepared at the place of occurrence itself through
one Suresh Kumar, who has been examined as PW-3. In his
examination-in-chief, PW-3 has stated that on the direction of the
Officer-in-Charge, he had prepared the seizure list, on which both
the independent witnesses, C.O. and the Officer-in-Charge had put
their signature. A copy of the same was made available to Indrapal
Singh. On the direction of the Officer-in-Charge, he had prepared
arrest memo also, on which both the independent witnesses and
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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accused Indrapal had put their signature. PW-3 has not stated in his
examination-in-chief that he had prepared the self-statement of
PW-2 at the place of seizure itself. He has, rather stated in
paragraph ‘5’ that he had come to the police station with the
apprehended accused and the seized articles. The vehicle was
placed in the premises of the police station and the seized articles
were kept in the malkhana. This witness had recorded the
confessional statement of the accused which has been marked
Exhibit ‘7’ by the learned trial court. Thus, PW-3 does not
corroborate PW-2 on the point of preparation of self-statement
(Exhibit ‘4’) at the place of occurrence, this Court would,
therefore, take a view that the self-statement (Exhibit ‘4’) was
prepared at the police station only. According to the self-statement
of PW-2, it was recorded on 02.02.2021 at 6:15 AM at Kajri
Bujurg but the FIR has been lodged at 9:30 AM, it was not sent to
the jurisdictional court on the same day. In fact, it was sent to the
jurisdictional court on 03.02.2021. It is evident that the FIR was
lodged subsequent to the preparation of the seizure list but the case
number was put on the seizure list (Exhibit ‘2’) it would give rise
to the manner of seizing of the contraband, if any, at the place of
occurrence. PW-3 has in fact stated in paragraph ’14’ of his
deposition that he had not signed on the seizure list, the seizure list
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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was prepared at the place of occurrence but the case number was
not filled up there, he has further stated that case number was not
filled up in his presence. This Court further finds that the
confessional statement of the appellant which is an inadmissible
document has been admitted and marked Exhibit ‘7’ by the learned
trial court.
31. Subodh Kumar Singh (PW-4) was posted as Police
Sub-Inspector in Jandaha Police Station on 01.02.2021. Regarding
search and seizure, he has also stated that the search was
conducted in presence of two independent witnesses. In his cross-
examination, this witness has stated that the weighing balance had
not come from the police station, it was obtained from the market
but from where it was obtained, it is not known. The weighing
balance was electronic and it was brought by Chowkidar. He has
stated that in preparation of seizure lists and completion of all the
formalities, it took time till 8:00 AM of the next day. He had stated
before the police that Amarnath Rai is son-in-law of Bali Rai but
he was not sure whether I.O. had written the same or not. He did
not remember that at what time the seizure list witnesses had come
to the place of occurrence. This witness has not stated about
preparation of sample out of the seized ganjas at the place of
occurrence.
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32. Awdhesh Prasad (PW-5) is another Assistant Sub-
Inspector of Police of Jandaha Police Station. He deposed on
similar line with regard to the search and seizure. He has stated
that at the police station he could not know about the truck
number. Nearby the place of occurrence, Mukhiya Sarpanch were
there but no one became ready. About 100 people had assembled at
the place of occurrence. Two persons were taken as seizure list
witnesses, one witness is of Jandaha P.S. whereas the second
witness is of Desri P.S. He has stated that the case number of the
present case was entered by the Officer-in-Charge in his presence
in the morning.
33. Manish Kumar Singh (PW-6) has stated about the
search and seizure in presence of two independent witnesses. This
witness has also not stated about preparation of self-statement by
PW-2 at the place of occurrence.
34. Satish Kumar (PW-7) is the Chowkidar of Jandaha
Police Station. He has stated in his examination-in-chief that the
apprehended person had disclosed his name as Indrapal whereas
the person who fled away was identified by him as Amarnath Rai.
In his cross-examination, this witness has stated that his house is at
a distance of 15-16 kilometers from the place of occurrence. There
are 53 Chowkidars in Jandaha Police Station, he is Chowkidar in
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Bishunpatti village. He was not the local Chowkidar of the place
of occurrence. He was acquainted with the independent witnesses
Shankar and Rakesh. He had not put any signature at the place of
occurrence. He has also stated that his statements were not
recorded before the Investigating Officer. From his evidence, it is
evident that both the seizure list witnesses who are of another
village were acquainted with this witness. Why instead of taking
independent witnesses, the known persons of PW-7 were made
seizure list witnesses would be a question mark.
35. Md. Sayeed Alam (PW-9) is the Assistant Director of
the Forensic Science Laboratory, Patna. He has stated that vide
Memo No. 260 dated 09.02.2021, Chowkidar 2/17 Santosh Kumar
Jha (not examined) had brought sealed parcel in a cloth for
examination. He had examined the sample seal with the seal
present on the parcel which were found intact. On opening, two tin
dabba which were marked as ‘L1/1’ and ‘L2/1’, were found. In
paragraph ‘2’ he has stated that on opening of the two dabba there
were two separate polythene bags which were opened and in those
packet dry greenish brown colored dried and pressed vegetable
substances were there which weighed 22.91 gram and 22.20 gram.
After examination, the greenish brown colored dried and pressed
vegetable substances along with seeds kept in two tin dabba were
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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found to be ganja. He has proved the FSL report (Exhibit ’10’). He
had got prepared the report through the writer Arvind Kumar
addressed to the learned District and Sessions Judge, Vaishali at
the instance of Majid Khan on 19.11.2021. He has also proved the
short signature of Majid Khan as Exhibit ’11’. In his cross-
examination, he has stated that the tin dabba was of jarda, he did
not remember whether there was any signature on that. There was
no detailed description of the examination of ‘L1/1’ and ‘L2/1’ in
the report. It is evident from the deposition of PW-9 that what was
received in the FSL was a sealed cloth parcel. In whose presence
the sealing was done is not evident from the records.
PW-2 has stated about preparation of samples of 25 gram
each and according to him, he had put it in the envelope. The order
dated 03.02.2021 recorded by the learned Special Court, NDPS
would not show that the samples which were kept in the envelopes
were produced before the learned court on 03.02.2021. It appears
that on 05.02.2021, an application was filed by the I.O. with a
prayer that FSL test of seized ganja is essential so permission for
FSL test may kindly be given. The learned court has recorded inter
alia “…. seen. Section 52A of NDPS Act has not been complied as
yet. Hence, application of I.O. is hereby forwarded to Mrs.
Vandana, Judicial Magistrate 1st Class, Hajipur, for compliance of
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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Section 52A of NDPS Act…”. The application was sent as per the
endorsement made in the margin portion of the ordersheet. In the
order dated 09.02.2021 it is recorded as under:-
“After compliance of Section 52A of the NDPS Act,
forwarding letter of sample of seized ganja has been filed
by I.O. Forwarding letter signed by me and handed over
to I.O. The I.O. is also permitted to send the sample of
ganja to FSL, Muzaffarpur for test and report.”
36. It is evident from the order dated 05.02.2021 and
09.02.2021 that on none of the occasions, the I.O. produced the
seized ganja or samples kept in the envelops in the court for
verification of inventory or preparation of sample in presence of
the Magistrate. On record, there is no exhibit of the prosecution
showing that either certification of inventory was done or the
sampling was done in presence of the Magistrate. The prosecution
has brought on record four pages of the Malkhana Register. This
has been marked Exhibit ’19’. It only shows that the seized ganja
was kept in the Central Malkhana of Town P.S., Hajipur on
02.02.2021, however, the prosecution witnesses have stated that
they had brought the seized ganja to Jandaha Police Station where
it was kept in the Malkhana. The certificate of destruction (Exhibit
’21’) shows that 760 kg 400 gram of ganja were destroyed,
however, it refers godown entry no. 30 and date of seizure
01.02.2021. Nothing has been brought on record to prove that the
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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eight quintal 100gm ganja seized in connection with the present
case was deposited in the dedicated godown of NDPS vide entry
number 30. In Exhibit ’22’, nothing is stated about how these were
shifted from Jandaha Malkhana to Hajipur dedicated Godown and
what led to loss of around 40 kgs of ganja. There is a short
signature of Judicial Magistrate on 14.11.2022 on Exhibit ’22’ but
nothing is stated as to who was the Magistrate who signed on the
said exhibit in the order dated 14.11.2022 of the learned Special
Court, NDPS. There is no mention of any such fact of signing of
destruction form by a Judicial Magistrate.
37. On a complete analysis of the evidences on the record,
while this Court finds that the learned Advocate for the appellant has
not cross-examined some of the prosecution witnesses, in fact, in the
cross-examination of PW-2, who is the Seizing Officer, this witness
has set up a case that the seizure list witnesses were not from the
village of the place of occurrence. We have noticed that both the
seizure list witnesses have not supported the prosecution case. PW-2
claimed in paragraph ’23’ that the local Chowkidar was present with
him but we find from the evidence on the record that the local
Chowkidar has not been examined in this case. PW-7, who is the
Chowkidar, has stated that he is not Chowkidar of the local village,
he is Chowkidar of Vishunpatti village and he had not been examined
by the I.O.
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38. We find from the evidence of the C.O. Jandaha (PW-
12) that when he reached the place of occurrence, the police team
was present there with local Chowkidar and villagers, the container
truck was standing there and one person had been kept in the police
custody. He has stated that the seizure was done in presence of two
independent witnesses and he had also put his short signature on the
seizure list which has been marked Exhibit ’19’. From the deposition
of PW-12 as well it does not appear that the self-statement of PW-2
was recorded at the place of occurrence. He did not remember the
name of the independent witnesses and agreed with the suggestion of
the defence that Shankar Paswan (PW-11) may be a resident of a
place at a distance of fifteen kilometers in Vishunpur village. He
denied his awareness that Rakesh Kumar, who is the another witness,
was a resident of village situated at a distance of twelve kilometers
from the place of occurrence.
39. Om Prakash Kuswaha (PW-13) was the In-charge
Malkhana in Jandaha Police Station. He has proved the entries in the
Malkhana Register in connection with Jandaha P.S. Case No. 24 of
2021. He has stated that the entries are in the handwriting of Ajay
Kumar (PW-10), he has identified the short signature of Ajay Kumar
which has been marked Exhibit ’19’ and ’19/1′ respectively. The
Malkhana Register MR 06/2021 has been marked Exhibit ’20’. In
paragraph ‘2’ of his examination-in-chief, this witness has stated that
Patna High Court CR. APP (DB) No.825 of 2023 dt.06-08-2025
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the seized material exhibits were deposited in the Central MalKhana,
Town P.S., Hajipur and the other articles are in the container which
have perished/decayed, details of the same was not available.
In his cross-examination, PW-13 has stated that he had never
worked with Ajay Kumar at any place. He has not seen him reading
and writing in any other case. This witness has further stated that the
articles seized from the container had perished and decayed but those
have not been destroyed. In his cross-examination, he has stated that
he had no seized article in his possession except the Malkhana
Register. It is evident from the deposition of PW-13 that the material
exhibit was never produced in court. While PW-2 has stated in
paragraph ‘6’ of his deposition that he had got the seized articles kept
in the Malkhana of the police station, there is no witness to say that
when the seized articles were taken out of the Malkhana of Jandaha
Police Station and were deposited in the Central Malkhana at Town
P.S. Hajipur.
10. From the entire evidence on the record, this Court
finds that in this case the prosecution has not followed Section 42 of
the NDPS Act. Not only that, neither the seized contraband nor the
sample which were taken out of from the seized contraband by PW-2
were ever produced before the learned Special Court. The learned
Magistrate to whom the application of the I.O. (Exhibit ’12’) was
sent for sample test has not been examined. The learned Additional
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Public Prosecutor has after going through the records confirmed that
in this case there is no certification of the inventory and the sampling
has not been done in presence of the Magistrate.
41. To this Court, it is also evident that the self-written
statement (Exhibit ‘4’) has been prepared after conduct of seizure.
There is no evidence showing sampling in presence of a Magistrate
and the accused. From the seizure list (Exhibit ‘2’), it appears that
the seizure continued from 01.02.2021 at 7:15 hours to 02.02.2021 at
6:00 AM whereas the self statement of PW-2 has been recorded at
6:15 AM and FIR has been registered at 9:30 AM but on the seizure
list the case number with the sections under which case has been
registered has been recorded at the top. None of the prosecution
witnesses has stated that the self statement of PW-2 was recorded at
the place of seizure. The learned trial court has committed gross error
in admitting the confessional statement of the appellant in evidence
as Exhibit ‘7’. This Exhibit ‘7’ is clearly hit by Section 25 of the
Indian Evidence Act.
42. In the light of the aforementioned discussions, this
Court is of the considered opinion that the prosecution has not been
able to lay down the foundational facts, the primary documents
which are required to prove the search, seizure and sampling of the
contraband article are not free from doubt. For all these reasons, the
judgment of the learned trial court would not sustain. The same is
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liable to be set aside. We, accordingly set aside the impugned
judgment and order of the learned trial court.
43. The appellant is acquitted of the charges giving him
the benefit of doubt. He is in incarceration since the date of his arrest,
therefore, he would be released forthwith if not wanted in any other
case.
44. This application is allowed.
45. Let a copy of the judgment together with the trial court
records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Ajit Kumar, J)
SUSHMA2/-
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