Patna High Court
Rakesh Singh vs The State Of Bihar on 24 June, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.107 of 2008
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Rakesh Singh, Son of Sudarshan Singh, Resident of Village- Jokahari, P.S.
Krishnagarh, District- Bhojpur, Bihar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajiv Kumar Singh, Advocate
: Mr. Narendra Kumar Singh, Advocate
For the State : Mr. A. M. P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
Date: 24-06-2025
Heard Mr. Rajiv Kumar Singh, assisted by Mr.
Narendra Kumar Singh, learned counsel for the appellant and
Mr. A. M. P. Mehta, learned APP for the State.
2. The present appeal is directed against the
judgment and order of sentence dated 30.11.2007 passed by the
learned Additional Sessions Judge-I-cum-Special Judge
(NDPS), Bhojpur at Ara in NDPS Case No. 01 of 1994 arising
out of Ara Mufassil P.S. Case No. 03 of 1994 whereby the
learned trial Court has convicted the appellant under Section
20(b) of the Narcotic Drugs and Psychotropic Substances Act,
1985 and has sentenced to undergo rigorous imprisonment for a
period of five years and also to pay a fine of Rs. 50,000/- and in
default of payment of fine he shall further undergo rigorous
imprisonment for a period of one year.
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3. As per the allegation in the FIR being Ara
Muffassil P.S. Case No. 03 of 1994 instituted by one Sona Lal
Singh, Sub-Inspector that he received secret information that a
person keeping Ganja in a gunny bag on a bicycle from Dobaha
Bazar towards Basantpur. After making a sanha entry being
Entry No. 66 of 1994 he along with police personal and the
informant proceeded to verify the truth of the information. On
seeing the police party all the accused persons left the bicycle
and tried to flee away but he was caught with the help of police.
The persons, who was identified himself as the accused of the
appellant, herein. On search in presence of two independent
witnesses, Ganja wrapped with polythene paper was found and
weighted as 8 ½ kg. It is further alleged that on being
interrogated he disclosed that he had purchased Ganja at the rate
of Rs. 700/- per kilogram from one person of village Masarh for
sale.
4. On the basis of this written report, Ara
Mufassil P.S. Case No. 03 of 1994 was drawn and after
investigation, charge sheet against the accused was filed.
Cognizance of offence was taken on 24.02.1995 under Section
20(b) of the N.D.P.S. Act and charge was framed against the
accused on 29.04.1995.
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5. On behalf of the prosecution, total seven
witnesses were examined to substantiate the charges leveled
against the accused/appellant, out of them, PW-1 Janardhan
Choudhary, PW-2 Ravi Shanker Singh, PW-3 Dudhnath Thakur,
PW-4 Dukhit Ram, PW-5 Narain Chandra Das, PW-6 Shree
Ram Shah and PW-7 Sonalal Singh and has also exhibited
certain documents. PW-3 and PW-4 have also been declared
hostile by the prosecution.
6. PW-1 in his examination-in-chief stated that
on 05.01.1994 around 4.30 P.M. at near Vindeshwari Sao’s shop
on the road from Dhobha to Basantpur an accused was arrested
who was carrying Ganja on his bicycle. On search, Sub-
Inspector recovered 8 ½ Kg. of Ganja and in front of two
independent witness he prepared the seizure list on which he put
his signature and independent witnesses also put their signatures
on it which is marked as exhibit-1 and 1/A.
6.i. In his cross-examination, he stated that the
place where he was having sweets is near Dhobha thana. He saw
50-100 people gathering around the chowk and he did not saw
how many persons were having bicycle with them. When he
went near the place of occurrence he saw that bicycle was
standing at that place and at the carrier of the bicycle he saw
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Ganja and Odiya in polythene bag. He was not having
information that bicycle belongs to whom and what name was
of bicycle. He further stated that he also cannot state about the
colour of the bicycle. He got the information about the
occurrence from the Sub-Inspector and seized Ganja was
measured in thana by bara babu. For measuring the seized
Ganja Chowkidar bring taraju and batkhara from a shop and
he did not remember the name of the said Chowkidar. After
getting information about the occurrence from the Sub-Inspector
PW-1 did not ask about the occurrence from any other person.
He saw seized Ganja at thana and earlier he has seen Ganja at
many places including shop. He has purchased Ganja many
times for use in marriage and other prospects. He has purchased
Ganja only at the cost of eight ana and one rupee.
7. PW-2 in his examination-in-chief stated that
on 05.01.1994 at around 3.30 PM he was at his shop when he
saw a person with bicycle carrying bag and when he reached
near Sundar Shah’s shop, Sub-Inspector caught him searched his
bag then he recovered 8 ½ Kg. Ganja which Sub-Inspector
seized and accordingly prepared seizure list.
7.i. In his cross-examination, he stated that he
did not hear any kind of hulla when he was at his shop. His shop
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was open from 8 AM and he cannot state that how many
motorcycle and bicycle crossed at that road. His shop is near
about 60 gaj North from Dhobha Chowk. He further stated that
15-20 persons already gathered at the place of occurrence when
he reached there including Vindeshwari Sao and nearby
shopkeepers were there whose name he did not remember. He
cannot state about the name of the bicycle and colour of the
bicycle. He did not have the knowledge about the bicycle and
bag present on the carrier. The seized Ganja was opened at the
place of occurrence and he did not saw where Ganja was
measured. He did not told Sub-Inspector to bring taraju and
batkhara from his shop to measure Ganja. He did not told Sub-
Inspector that the person on bicycle was coming from Dhobha
to Vasantpur.
8. PW-5 in his examination-in-chief stated that
on 26.01.1995 he was posted at Dhobha Outpost and given
charge of investigation of this case on 26.01.1995 by Sub-
Inspector Amrendra Narain Kumar. He further stated that he
sent the seized Ganja to Forensic Science Laboratory for test
and finding the case to be true he has filed charge-sheet. He
identify the written statement in the pen of Sonalal Singh (Sub-
Inspector) and it bear his signature which is marked as Ext. 2 as
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a whole. In his cross-examination, he stated that he has not
recorded the statement of any witnesses. On the date of
occurrence, he was not posted at the said outpost. The seized
sample sent for FSL is not in front of him and after filing the
charge-sheet, FSL report came.
9. PW-6 in his examination-in-chief stated that
signature on seizure list is in his pen which he identify and
marked as ext.3. In his cross-examination, he stated that Ganja
was caught loaded on a bicycle which was parked on the
roadside. He don’t know whose bicycle was it and whose Ganja
was it.
10. PW-7 in his examination-in-chief stated that
he was working at Dhobha O.P. I/c on 05.01.1994 when he
received a secret information that smugglers were carrying
Ganja on a bicycle by road connecting Dhobha to Vasantpur. He
recorded it in the station diary as Entry No. 66 dated 01.05.1994
and departed for the place for verification of that information
along with the Hawaldar Surendra Sharma, Home Guard Dev
Kumar Singh, Home Guard Ram Kumar, Dinanath Singh and
Satnarayan Singh deputed in the police station. He further stated
that as soon as we reached near the shop of Shyamsundar Gupta
on the Dhobha-Vasantpur road along with force at 04:30 hrs,
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then on seeing us one bicycle rider who had kept something on
the carrier tried to run away. Two witnesses Shri Ram Sah and
Janardan Chaudhary were there. When the bag tied on bicycle
was opened in front of accused, Ganja wrapped in violet
polythene was recovered. He stated that weighing scale and
weights were taken from the nearby shop and it was weighed,
then the weight came out to be 8 ½ kg. The bicycle and Ganja
were seized in the presence of both the witnesses and prepared
the seizure list which is in my handwriting and signature and it
also bears the signature of the witnesses which was marked as
ext.4.
10.i. He further stated that he prepared a written
report against Rakesh Singh and arrested him. It is same written
report which is in my handwriting and signature, which was
marked as ext. 5. He inspected the place of occurrence and
recorded the statements of the witnesses and made over the
charge of investigation of the case to Amrendra Narayan Singh
because he was transferred. The formal FIR is in the
handwriting and signature of Sri Ravishankar Prasad, Police
Station In-Charge which he identify it marked as ext.6.
10.ii. In his cross-examination, he stated that
there is short description in the case diary of what I had noted in
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the station diary and he prepared the seizure list first than
prepared the written report. He received it on 06.01.1994 after
registering of the case. After that, he received the instructions
for the investigation and then inspected the place of occurrence
and recorded the statement of the witnesses. There is no
reference of the word smuggler in the case diary and he had also
seized the bicycle. He can not say whether any investigation
was carried out about the bicycle or not because he had been
transferred. The seized material was kept in O.P. Maalkhana. He
had not given any formal information of this to the Court. It is
wrong to say that the alleged bicycle and Ganja did not belong
to the accused and the bicycle owner ran away in a rush and the
accused was apprehended on the basis of suspicion.
11. Learned counsel for the appellant submitted
that the impugned judgment of conviction and the order of
sentence passed by learned trial Court are not sustainable in the
eye of law or on facts. The trial Court has not applied its judicial
mind and has failed to properly appreciate the evidence on
record. He further claimed that the prosecution has failed to
prove its case against the appellant beyond shadow of all
reasonable doubts.
11.i. Learned Counsel further contended that the
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present is a case of no evidence with regard to the identification
of the appellant as the carrier of the Ganja allegedly seized or as
the person riding the bicycle from which the Ganja is alleged to
have been recovered, as is manifest from the following:
a) Though the informant (PW-7) in his testimony
has stated that he had caught the appellant in the presence of the
seizure witnesses PW-1 and PW-6, neither of the seizure
witnesses have supported the said statement and there is not
even a whisper in their statements about PW-7 having caught
the appellant in their presence. Rather, PW-1 in his testimony
has stated that when he reached the place of occurrence he saw
the bicycle parked on its stand and all the information that he
received about the incident was from the informant. He has
denied having any information about the owner of the cycle
from before. He has not stated anything about the presence of
the appellant at the place of occurrence when he reached there.
Similarly, PW-6 who is the other seizure witness has not stated
anything about the appellant having been caught by the police
party while attempting to flee from the place of occurrence
leaving the bicycle behind. He has only proved with signature
on the seizure list and contrary to the statement of PW-7 has
stated that he does not know the owner of the bicycle or that of
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the Ganja recovered. He has gone on to state that the appellant
has got nothing to do with the seized item and that he was
having breakfast at a nearby shop.
b) Even PW-2 who claims to be the owner of a
the cement shop on the same road and has been examined by the
prosecution, has stated that when he reached the place of
occurrences, saw the bicycle parked on its stand and has not
mentioned anything about the appellant having been
apprehended by the police party while trying to flee away or
that he was the owner of the bicycle.
11.ii. Learned counsel further submitted that
there is no evidence at all to prove that any article was actually
seized from the carrier of the bicycle was Ganja as is manifest
from the following:
a) There is no evidence at all that the sample of
the substance seized was taken at the time of seizure and sent
for chemical analysis.
b) PW-7 in his testimony as stated that seized
articles i.e., the bicycle and the substance alleged to be Ganja
was deposited in the Malkhana of the outpost and no formal
information of the seizure was sent to the Court. Nor has the
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c) There is no evidence at all to suggest that the
seized articles were sent to the Officer-in-Charge of the nearest
police station or that the same was sealed before being kept in
the malkhana by the Officer-in-charge or by some one else at his
behest. Neither the bicycle nor the seized Ganja was produced
in Court.
11.iii. Learned counsel submitted that there is no
evidence to show that it was the substance allegedly seized from
the bicycle that was sent for chemical examination and that it
was Ganja. Further, there is no evidence to show that any
sample of the seized substance was taken before it was kept in
the Malkhana of the Out Post. Admittedly, the substance alleged
to have been seized and kept in the Malkhana of the outpost was
sent for chemical analysis after one year of its alleged seizure,
not by the Officer who had seized the same but by his successor
in office namely PW-5. Again, PW-5 has not stated as to
whether a sample of the substance was sent for chemical
analysis or the whole of it was sent. In the absence of any such
evidence it is doubtful that what was sent for examination was
actually the substance seized from the bicycle.
11.iv. He further submitted that neither the
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substance allegedly seized nor the bicycle on which it was
allegedly kept at the time of seizure has been produced in Court.
The report of the chemical analysis done on the alleged Ganja
does not show that it was received in sealed condition. The
report of the chemical analysis has not been proved by its maker
or any person in the know of it. The author of the report has not
been examined. As such there is no conclusive proof of fact that
the substance examined was actually the same substance that
was seized from the bicycle in this case and that it was Ganja.
11.v. Learned counsel further pointed out that
there are material inconsistencies in the testimonies of the
prosecution witnesses whereas PW-7 in his testimony has stated
that the appellant was apprehended in the presence of the
seizure witnesses, the said version has not been supported but
the seizure witnesses. PW-7 in the written report which is the
basis of the FIR as well as in his testimony has stated that the
substance kept on the carrier of the bicycle, allegedly Ganja,
was weighed at the place of occurrence itself by procuring
weighing balance from nearby shop. However, PW-1 who is a
seizure witness has categorically stated that the measurement of
the alleged Ganja was done at the police station. Moreover,
there is no evidence to show as to from which shop the
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weighing balance was procured.
11.vi. In the seizure list, which admittedly was
prepared prior to the preparation of the written report, it has
been mentioned that the appellant was riding the bicycle at the
time of seizure. This fact stands negated by the testimonies of
PW-1, PW-2 and PW-6 none of whom have stated to have seen
the appellant either riding the bicycle or being in close
proximity of it at the time of seizure. There are violation of
mandatory provisions of the Narcotic Drugs and Psychotropic
Substance Act, 1985. As per the provisions of Section 42 of the
Act, as it existed prior to it’s amendment in 2001 and the
Notification of the Government of Bihar dated 05.09.1988,
investigation, search and seizure for alleged offences under the
Act could have only been done by officers above the rank of
Inspector of police. However in the instant case search, seizure
and arrest has been made by a police officer of the rank of Sub-
Inspector and even the investigation has been done by and
officer below the rank of Inspector. As such, as the search,
seizure arrest investigation in the instant case has been done by
an officer below the rank of Inspector, the whole trial was
vitiated on this account.
11.vii. As per Section 52[2] every person arrested
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and article seized under Section 41[2], Section 42, Section 43 or
Section 44 shall be forwarded without unnecessary delay to
either the officer in charge of the nearest police station or the
Officer empowered under Section 53. As per Section 52 A (2),
where any narcotic drug has been seized and forwarded to the
officer-in-charge of the nearest police station or to the Officer
empowered, the Officer referred to above shall prepare an
inventory of such narcotic drugs etc. containing search details
relating to their description, quality quantity, mode of packaging
etc. and make an application to the concerned Magistrate
forthwith. Nothing of the above has been done in the instant
case.
11.viii. As per the provisions of Section 55, an
Officer-in-Charge of the police station shall take charge of and
keep in safe custody, pending the orders of the Magistrate all
articles seized under this act within the local area of that police
station and which may be delivered to him, and shall allow any
officer who may accompany search articles to the police station
or who may be deputed for the purpose, to affix his seal to such
articles or to take samples off and from them and also samples,
where taken should also be sealed with the seal of the officer in
charge of the police station. There is no evidence at all to show
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that any of the above was done especially there is no evidence to
show that any sample of the alleged Ganja seized was taken and
the Ganja was kept under seal and signature of the Officer-in-
Charge of the concerned Police Station. PW-7 has admitted in
his evidence that the seized Ganja was straight away kept in the
Malkhana of the outpost and no informal information of the
same was sent to the Magistrate. Moreover, the unsealed Ganja
was allegedly sent to the Forensic Science Laboratory for
chemical analysis after one year of its seizure by a person who
had newly taken over the investigation and was not the person
who had seized the Ganja in the instant case. Thus, there are
serious discrepancies of the prosecution case in following the
mandatory provision of the Act that vitiate the trial and the
benefit of which will accrue to the appellant.
11.ix. Learned counsel for the appellant lastly
contended that in view of the aforesaid facts and circumstances,
the prosecution has failed to prove beyond all reasonable doubts
that contraband was recovered from the possession of the
appellant. Hence, the prosecution case against the appellant fails
on this ground alone. So, the appellant should have been
acquitted from the conviction as sentenced against him.
12. However, learned APP for the State has
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vehemently defended the impugned judgment of conviction and
order of sentence, submitting that there is no illegality or
infirmity in them. 8 ½ Kg Ganja has been recovered from the
conscious possession of the appellant and hence, culpable
mental state of the appellant is presumed under Section 35 of
the NDPS Act and presumption of commission of the offence of
illegal possession of the contraband stands raised under Section
54 of the NDPS Act and it was for the appellant to rebut the
presumption of legally admissible evidence. But no evidence
has been adduced by the appellant to rebut the presumption of
their mens rea and the illegal possession of the contraband. He
also submits that search, seizure and sampling of the contraband
has been done as per law and there is no illegality involved in it.
13. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court
14. On deeply studied and scrutinized all
evidences, it is evident to note here that the contention raised by
the learned counsel for the appellant that there is non-
compliance of Section 52A of the NDPS Act. On this regard it is
important to point out that the said Section 52A of the NDPS,
Act came enforce in the year 2011 but the present case is of the
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year 1994. So the said Section would not apply in the present
case. This court on critical examination of the entire evidence
on record and after considering the submissions advanced by the
rival parties reiterates its view that there is serious doubt with
regard to the seizure effected by the informant. It is not proved
beyond shadow of all reasonable doubt that the samples so
collected and sent for chemical examination and found to be
contraband/article was, in fact, drawn from the bags which was
carried by the appellant. There is contradictory evidence on
record with regard to the actual manner and weight of the
sample which was drawn. PW-7 in the written report which is
the basis of the FIR as well as in his testimony has stated that
the substance kept on the carrier of the bicycle, allegedly Ganja,
was weighed at the place of occurrence itself by procuring
weighing balance from nearby shop. However, PW-1 who is a
seizure witness has categorically stated that the measurement of
the alleged Ganja was done at the Police Station. Moreover,
there is no evidence to show as to from which shop the
weighing balance was procured.
15. Whereas PW-7 in his testimony has stated
that the appellant was apprehended in the presence of the
seizure witnesses, the said version has not been supported but
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the seizure witnesses. There is no evidence to show that any
sample of the alleged Ganja seized was taken and the Ganja
was kept under seal and signature of the Officer-in-Charge of
the concerned Police Station. Further, PW-7 has admitted in his
evidence that the seized Ganja was straight away kept in the
Malkhana of the outpost and no formal information of the same
was sent to the Magistrate. Moreover, the unsealed Ganja was
allegedly sent to the Forensic Science Laboratory for chemical
analysis after one year of its seizure by a person who had newly
taken over the investigation and was not the person who had
seized the ganja in the instant case.
16. Thus, there are serious discrepancies of the
prosecution case and in the opinion of this Court, on the basis of
materials /evidence available on record the charges cannot be
said to have been proved beyond shadow of all reasonable
doubts. The doubts which have crept into the mind of the Court
definitely entitles the appellant to get benefit of doubt and this
Court grants the same.
17. Further, there are many contradictions in the
deposition made by the prosecution witnesses as the informant
(PW-7) in his testimony has stated that he had caught the
appellant in the presence of the seizure witnesses PW-1 and PW-
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6, neither of the seizure witnesses have supported the said
statement and there is not even a whisper in their statements
about PW-7 having caught the appellant in their presence.
Rather, PW-1 in his testimony has stated that when he reached
the place of occurrence he saw the bicycle parked on its stand
and all the information that he received about the incident was
from the informant. He has denied having any information about
the owner of the bicycle from before. He has not stated anything
about the presence of the appellant at the place of occurrence
when he reached there. Similarly, PW-6 who is the other seizure
witness has not stated anything about the appellant having been
caught by the police party while attempting to flee from the
place of occurrence leaving the bicycle behind. He has only
proved with signature on the seizure list and contrary to the
statement of PW-7 has stated that he does not know the owner
of the bicycle or that of the Ganja recovered. He has gone on to
state that the appellant has got nothing to do with the seized
item and that he was having breakfast at a nearby shop. Even
PW-2 who claims to be the owner of a the cement shop on the
same road and has been examined by the prosecution, has stated
that when he reached the place of occurrences saw the bicycle
parked on its stand and has not mentioned anything about the
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appellant having been apprehended by the police party while
trying to flee away or that he was the owner of the bicycle.
18. After incorporating the aforesaid facts, this
Court safely holds that the learned trial Court failed to scrutinize
the evidence brought on record regarding deficiencies,
drawbacks and infirmities crept during course of trial and
passed the impugned judgment in complete ignorance of
criminal jurisprudence and passed this judgment. Moreover,
there are discrepancies regarding the sequence of events and the
presence of individuals at the place of occurrence. Considering
this fact, prosecution has failed to establish this case beyond
shadow of all reasonable doubts, therefore, in such
circumstances, it may not be proper to convict the
appellant/accused on the materials available on record. Hence,
the judgment of conviction and order of sentence in this present
matter is fit to be set aside.
19. Hence, the judgment and order of sentence
dated 30.11.2007 passed by the learned Additional Sessions
Judge-I-cum-Special Judge (NDPS), Bhojpur at Ara in NDPS
Case No. 01 of 1994 arising out of Ara Mufassil P.S. Case No.
03 of 1994 is set aside and the accused/appellant is acquitted
from the charges leveled against him. As the appellant is on bail,
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he is discharged from the liability of his bail bonds.
20. Accordingly, this appeal stands allowed.
21. Office is directed to send back the trial Court
records and proceedings along with a copy of this judgment to
the trial Court, forthwith, for necessary compliance, if any.
(Ramesh Chand Malviya, J)
Anand Kr.
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