Patna High Court
Vijay Mahto @ Bijay Mahto vs State Of Bihar on 12 August, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.474 of 2006
======================================================
Vijay Mahto @ Bijay Mahto, son of Munshi Mahto, resident of Mohalla:
Asha Nagar, P.S.: Biharsarif, District: Nalanda (Bihar).
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Yogendra Kumar Singh, Advocate.
Mr. Ajit Kumar, Advocate.
Mr. Manoj Kumar, Advocate.
For the Respondent/s : Mr. Anand Mohan Prasad Mehta, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 12.08.2025
Heard learned counsel for the appellant and the
learned APP for the State.
2. The present Criminal Appeal has been filed
under Sections 374 (2) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.') against the judgment dated
24.05.2006
and sentence dated 26.05.2006 in Sessions Trial
No.243 of 1990 passed by the Additional Sessions Judge, Fast
Track Court No.5, Biharsarif, Nalanda (hereinafter referred to as
the “Trial Court”), wherein the appellant has been convicted
under Section 18 of the Narcotic Drugs and Psychotropic
Substances Act (hereinafter referred to as “N.D.P.S. Act“) and
sentenced to undergo rigorous imprisonment for 10 years and
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was also imposed with fine of Rs. 1,00,000/- and in default of
which the appellant has to further undergo rigorous
imprisonment for 3 years.
3. The brief facts of the case as per the prosecution
is that on 25.03.1987, Dinesh Chandra Gupta (P.W.5), Sub-
Inspector of Excise, along with Sri S.S. Srivastava, Executive
Magistrate, on secret information, visited and recovered 1800
opium plants from the alleged field of appellant at Asha Nagar,
Biharsarif and also from nearby two plots 500 and 2000 opium
plants respectively were recovered. The informant prepared
seizure lists in presence of three witnesses detailing the recovery
of opium plants from all three fields. Thereafter, the samples of
the opium plants were taken and sealed in packets. A complaint
to the learned C.J.M., Biharsarif was presented with seizure
lists, application to destroy the opium plants and also the
permission to send the sample for chemical examination was
sought. The learned C.J.M., Biharsarif at Nalanda ordered to
register the complaint and allowed the said applications for
destruction of seized opium plants and chemical examination of
the said sample. Upon completion of the investigation, it was
found that 1800 opium plants recovered on 25.03.1987 from
Khata No. 222, Plot No. 375, Area 21 decimals, belonged to
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Vijay Mahto-appellant herein. Subsequently, a prosecution
report was submitted before the learned C.J.M. 17.07.1987
under Section 18 of the N.D.P.S. Act against the
appellant/accused.
4. On the basis of material on record, including
chemical examination report, the learned C.J.M., Nalanda took
cognizance under Section 18 of the N.D.P.S. Act on 17.07.1987.
Thereafter, the case was committed to the Court of Sessions on
24.04.1990 and charge was framed against the appellant/accused
on 05.02.1999 under Section 18 of N.D.P.S. Act, wherein he
pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution has
examined total five witnesses to bring home the charges against
the appellant/accused.
P.Ws. Name
P.W.1 Santosh Kumar (Seizure list witness)
P.W.2 Dr. Chhatrapati Shivaji (Seizure list witness)
P.W.3 Vijay Kumar (Formal witness)
P.W.4 Navin Kumar Mishra (Member of raiding party)
P.W.5 Dinesh Chandra Gupta (Complainant-cum-
Investigating Officer)
Moreover, two court witnesses, namely, Md. Khabir, Circle
Officer of Biharsarif Circle as C.W.1 and Vijay Kumar
Srivastava, Revenue Clerk as C.W.2 were examined and
altogether fifteen documents were exhibited as under:
Patna High Court CR. APP (SJ) No.474 of 2006 dt.12-08-2025
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Ext. 1 Signature of Santosh Kumar (P.W.1)
on seizure list
Ext. 1/A Signature of Dr. Chhatrapati Shivaji
(P.W.2) on seizure list.
Ext. 2 Complaint dated 25.03.1987 to
C.J.M., Biharsarif, Nalanda.
Ext. 3 Petition dated 25.03.1987 to destroy
the seized opium plants.
Ext. 3/A The Carbon Copy of order dated
25.03.1987 on the petition to destroy
the seized opium plants.
Ext. 3/B Carbon Copy of petition and
forwarding order of Court on the
same for chemical examination of
sample of opium plants.
Ext. 4 Seizure list of 2000 opium plants
Ext. 4/A Seizure list of 1800 opium plants
Ext. 4/B Seizure list of 500 opium plants
Ext. 5 Prosecution Report to C.J.M.,
Nalanda
Ext. 6 Certificate of Chemical Examiner
Ext. 7 Seizure list
Ext. 8 Carbon Copy of Certificate issued
by the Circle Officer
Ext. 9 and Photocopy of Register II Raiyati
9/A Khata (old and new) of Munshi
Mahto showing Khata no. 222 and
other Khata in his name
6. On behalf of the accused/appellant to show that
he has no concern with Khata no.222, plot no.375 and he is
separated form his father and brother, and his name being
mutated in the revenue record separately and rent receipts have
been issued, one witness was examined in favour of his case,
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were exhibited in support thereto. Abhidhari Khata Pustika
issued by Revenue and Land Reforms department, Bihar
Government prepared and certified by Circle Officer showing
different Khata and polts nos. owned and possesed by
accused/appellant is marked as Ext. A and three rent receipts of
khata no. 207 & 2015 in the name of Vijay Kumar, son of
Munshi Mahto for the year 1986-87, 1988-89, and 1989-90 are
marked as Ext. B, Ext. B/1 and Ext. B/2 respectively.
7. The learned Trial Court on considering the entire
oral and documentary evidence on record and submission of
learned counsel for the parties given finding that P.W.4 and
P.W.5 are employee in the excise department and posted at Patna
at the time of occurrence. There was no enmity among the
accused/appellant, P.W.4 and P.W.5, and it is not expected from
them to implicate an innocent person on the instance of any
other person. The opium plants were recovered from plot no.
375, khata no.222 and the then Circle Officer had no reason to
issue a wrong certificate that the land of plot no.375 belonged to
accused Vijay Mahto. From the evidence of C.W.1 and C.W.2
along with Ext.8, the prosecution has been able to substantiate
the fact that plot no.375, khata no.222, Area 21 decimal from
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which 1800 opium plants were recovered, belonged to Munshi
Mahto who is father of accused. The plea of accused that he is
separated from his brother and father was taken at belated stage
after conclusion of prosecution evidence, therefore, this defence
has no force. This case was not initiated on the report made to
police, rather the Excise Department raided and recovered the
illegal opium plants from the field and thereafter, on completion
of enquiry they submitted prosecution report. Therefore, in the
circumstances it is not correct to say that P.W.5 is informant as
well as I.O. Moreover, name of the owners of two other plots
were disclosed but prosecution against those two owners were
not made by the complainant in the case is not acceptable
ground for entitlement of accused for acquittal.
8. The learned Trial Court on the basis of aforesaid
findings came to the conclusion that offence under Section 18 of
N.D.P.S. Act has been substantiated against the accused Vijay
Mahto who is guilty and accordingly, convicted the appellant for
the offence under Section 18 of the N.D.P.S. Act and sentenced
the appellant to undergo rigorous imprisonment for 10 years and
also imposed fine of Rs. 1,00,000/- and in default of which the
appellant has to further undergo rigorous imprisonment for 3
years.
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9. Learned Counsel appearing on behalf of the
appellant has submitted that the prosecution has failed to prove
the charge against the appellant beyond reasonable doubt and,
therefore, the judgment and order of conviction passed by the
learned Trial Court is not sustainable either in fact or in law. It is
submitted that P.Ws. 1 and 2, who were present as seizure
witnesses, have specifically denied the seizure of opium in their
presence and have deposed that their signatures were obtained
on plain paper. No independent witness has supported the
alleged recovery of the opium plant from the field of the
appellant, and P.W.3 Vijay Kumar, being a formal witness, was
not present at the time of recovery. It is further submitted that
P.Ws. 4 and 5, namely Navin Kishore Mishra and Dinesh
Chandra Gupta respectively, who were part of the raiding party,
are interested witnesses, and hence their evidence ought to have
been scrutinized with caution. The learned counsel has also
argued that the land in question, recorded under Khata No. 222,
Plot No. 375, area 21 decimals, stands in the name of his father
Munshi Mahto, son of Ugri Mahto, as evident from the Register-
II marked as Ext.9 and Ext.9/A. The said Munshi Mahto has
three sons viz., Vijay Mahto (accused/appellant), Kishore
Kumar, and Ajay Kumar, who have been living separately after
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partition for a considerable period. The appellant has no concern
with the land of khata no.222, plot no.375. Therefore, the
prosecution’s contention that the land from which the opium
plant was allegedly recovered belongs to the appellant is
incorrect and baseless and also against its own specific finding
that the same belongs to the father appellant viz., Munshi
Mahto. Learned counsel further submits that the Trial Court
failed to consider properly the report of the Circle Officer
(Ext.8) and the entries in Register-II (Ext.9/A), which are
inconsistent with the prosecution case. It is also urged that
crucial witnesses such as the Chemical Examiner, Executive
Magistrate, and Malkhana in-charge were not examined by the
prosecution, and the sample of opium allegedly seized and sent
for chemical examination was neither produced before the Court
nor exhibited during trial. Moreover, attention is also drawn to
the cross-examination of P.W.5 Dinesh Chandra Gupta, wherein
he admitted in paragraph 5 that the sealed sample of the opium
plant was sent through department after a delay of 3 to 4 days
from the date of seizure. It is evident that the samples were not
sent by the Court but by the department which vitiates the
prosecution case. It is further submitted that the complainant
(P.W.5) has himself conducted the entire investigation and
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submitted the prosecution report which is unfair investigation
and is against the principle of administration of criminal justice.
The reasons given by the learned Trial Court for discarding the
evidence of defence are not correct in view of the specific
defence that the appellant has no concerned with the land in
question. On the strength of the above submissions, it is urged
that the findings recorded by the learned Trial Court are perverse
and unsustainable, and the impugned judgment and order are
liable to be set aside.
10. Per contra, learned A.P.P. on behalf of the State
submitted that the learned Trial Court has not committed any
error while passing the impugned judgment and, therefore, this
Court may not interfere with the same. The learned APP has
referred to Section 35 of N.D.P.S. Act and submitted that there is
presumption of culpable mental state against the appellant from
whose land (khata no.222, plot no.375) 1800 opium plants were
found. He further submitted that the seizure list witnesses
turning hostile is not very significant as the other circumstances
prove that the appellant was involved in the illegal cultivation of
opium plants. Moreover, it is submitted that non-joining of
independent witnesses is not fatal to the prosecution case. He
further submitted that there is no bar against conducting
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investigation by the informant/complainant himself and the
accused/appellant has not been able to establish any bias or
unfair investigation by P.W.5.
11. This Court has reconsidered the submissions
canvassed by the learned counsels for the parties and after going
through the evidence led by the parties before the learned Trial
Court and also re-appreciated the same. It is well settle that this
Court has power to re-appreciate and reconsider the evidence in
appeal.
12. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the learned Trial Court.
13. P.W.1- Santosh Kumar (seizure list witness) in
his deposition stated that he does not know Dinesh Chandra
Gupta, the informant of the present case and admitted that the
signature appearing on the seizure list was indeed his signature
(Ext.1). He turned hostile and denied to have any knowledge
about the occurrence. In his cross-examination, he has further
stated that his signature had been obtained on a plain paper and
he had not given any statement either to the police, the
complainant or the investigating officer.
14. P.W.2- Dr. Chhatrapati Shivaji (seizure list
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witness) in his deposition has also denied to have any
knowledge regarding the case and further deposed that his
signature, marked as Ext.1/A, was taken on a plain paper.
During his cross-examination, he has stated that no recovery of
1800 poppy plants was made in his presence, nor was any
seizure-list prepared in his presence. He reiterated that his
signature had been obtained on a plain paper.
15. P.W.3- Vijay Kumar, who is a formal witness,
in his deposition has formally identified the different writings
and signatures of I.O. Dinesh Chandra Gupta appearing in Ext.2,
Ext.3, Ext.3/A, and Ext.3/B. He has further proved the
prosecution report laid by Dinesh Chandra Gupta as well as the
seizure list and Chemical Examination Report (Ext.6). In his
cross-examination, he admitted that he has no personal
knowledge of the case, nor any document was written before
him and further stated that in the year 1987 he was posted at
District Nawada and never got any opportunity to work with
Dinesh Chandra Gupta.
16. P.W.4, Navin Kumar Mishra, who was the
Special Superintendent of the Excise Intelligence Bureau, Patna,
deposed that he was part of the raiding team along with P.W.5
Dinesh Chandra Gupta and 12 constables of the Excise
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Department. He stated that after coordinating with the District
Administration at Biharsarif, a team led by Executive Magistrate
Shri S.S. Srivastava proceeded to the place of occurrence around
12:15 P.M. According to him, 1800 opium poppy plants were
allegedly found standing on the land of Vijay Mahto and were
seized in the presence of the Magistrate and police personnel.
Further, opium poppy plants numbering 500 and 2000
respectively were also seized from two adjoining plots.
However, in his cross-examination, P.W.4 admitted that he was
unaware of the specific khata or plot numbers of the lands from
which the seizure was made and could not describe the
boundaries of the alleged land. He further stated that he was not
acquainted with the seizure list witnesses and had not seen the
accused on the spot during the raid. He also could not confirm
who had informed them that the land belonged to Vijay Mahto
and had no knowledge regarding the ownership of the other two
plots. Significantly, he admitted that prior information regarding
the raid was not given to either Sohsarai P.S. or Biharsarif P.S.
and that there is no record of the application or intimation
allegedly submitted to the District Magistrate. He further
conceded having no personal knowledge of the ownership or
cultivation of poppy on the land in question.
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17. P.W. 5, Dinesh Chandra Gupta who is the
complainant-cum-Investigating Officer of this case deposed that
on 25.03.1987, he received information that the cultivation of
opium poppy plant was going on at Asha Nagar. So on that very
day a raid was organized, and along with force constituted of
Special Superintendent Navin Kumar Mishra (P.W.4), arranged
for Executive Magistrate and went to P.O. and raided it, where
1700 to 1800 opium plants were found in the field of Vijay
Mahto (appellant). Besides, in other two plots also opium poppy
plants were found which were seized and were sent to chemical
examiner after informing the C.J.M., Biharsarif, Nalanda and
the C.J.M. ordered for the same. The same day an application to
destroy the opium poppy plants was also filed before C.J.M. and
the order was passed. After receiving the chemical report, he
completed investigation and submitted charge sheet. In his
cross-examination, he admitted that he did not inform the
concerned police station about the raid rather he informed his
department. He further admitted that the help of the local police
was taken but he can not say the name of the police station as
the organizer can only say about it. He was neither known to
Asha Nagar earlier nor was he acquainted with it and he was
taken to the place of occurrence by local people. He stated that
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he was not acquainted with any of the owners of the three fields
from where poppy plants were recovered. Also, he cannot give
the details of the khata, plots etc. of the same as he does not
remember, he can say it after looking into the records. He
further stated that the field where the poppy was being
cultivated belonged to Vijay Yadav and the same was informed
by Vijay Yadav himself during the course of investigation. The
statement of Vijay Yadav was not recorded. He stated that he did
not search the house of the accused. The poppy plants were sent
for chemical examination with a delay of around 3-4 days from
the date of recovery of poppy.
18. The learned Trial Court on perusal of record
found that certified copy regarding land in question issued by
Circle Officer as mentioned in prosecution report which was
very important document for decision of this case has not been
proved by the prosecution, the Court examined two witnesses.
C.W.1 Mohd. Khabir, the then Circle Officer, deposed on
05.05.2006 as court witness and has proved the certificate dated
13.07.1987 issued by then Circle Officer Sri Rabindra Nath
Tiwari as Ext.8 which was issued on the basis of revenue
karamchari inspection and report. He further deposed that khata
no.222 khesra no.375, area 21 decimal is recorded in the name
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of Vijay Prasad. In his cross-examination, he has admitted that
he has not seen the report on the basis whereof the Ext.8 was
issued. He also admitted that Kisan Bahi contains the seal of
Circle Officer which would be legal but without verifying the
concerned issue record, it cannot be said that the same was
issued complying all the formalities.
19. C.W.2 Vijay Kumar Srivastava, revenue clerk,
in his deposition stated that in Register II, khata no.222 is
recorded in the name of Munsi Mahto son of Ugri Mahto. He
proved Ext.9 and Ext.9/A which are old Register II and new
Register II. He proved Kisan Bahi (Abhidhari Khata Pustika) of
Vijay Mahto marked as Ext.A. He has admitted in his cross-
examination that on Ext.A contains printed signature of Circle
Officer and there is small signature of revenue clerk, namely,
Subodh Kumar Sinha on it.
20. The appellant examined Indrajeet Prasad Sinha
as (D.W.1) who is resident of village Asha Nagar who deposed
that father of accused (Munshi Mahto) is alive and the accused
has two more brothers and all the three brothers have been
seperated since 25 years whose living, cultivation and kitchen
all are seperate.
21. First, I shall deal with the core issue “whether
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the prosecution has successfully established beyond reasonable
doubt that cultivation of opium plants was done by the accused
and whether the accused had ownership and possession of the
land from which the alleged opium plants were recovered?”
22. For holding a person liable for illegal
cultivation of opium poppy, it must be proved that the
cultivation was done by the accused or under his control. The
mere presence of plants on land is not enough unless it is
established that the accused was in possession or had dominion
over the land.
23. Section 35 of the N.D.P.S. Act raises a
presumption as to existence of culpable mental state from the
possession of illicit articles and culpable mental state includes
the knowledge of facts also. As per explanation (2) of Section 35
of the N.D.P.S. Act, a fact is said to be proved only when the
court believes it to exist beyond reasonable doubt and not
merely when its existence is established by a preponderance of
probability.
24. In the case of Dharampal Singh v. State of
Punjab reported in (2010) 9 SCC 608 the Hon’ble Supreme
Court referred to the expression “possession” in the context of
Section 18 of the N.D.P.S. Act. In the said case, opium was
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found in the dickey of the car when the appellant therein was
driving himself and the contention was canvassed that the said
act would not establish conscious possession. In support of the
said submission, reliance was placed on Avtar Singh v. State of
Punjab reported in (2002) 7 SCC 419 and Sorabkhan
Gandhkhan Pathan v. State of Gujarat reported in (2004) 13
SCC 608. The Hon’ble Supreme Court observed in para 12, 13,
15 and 16 as under:
“12. We do not find any substance in this
submission of the learned counsel. The
appellant Dharampal Singh was found
driving the car whereas appellant Major
Singh was travelling with him and from the
dickey of the car 65 kg of opium was
recovered. The vehicle driven by the
appellant Dharampal Singh and occupied by
the appellant Major Singh is not a public
transport vehicle. It is trite that to bring the
offence within the mischief of Section 18 of
the Act possession has to be conscious
possession. The initial burden of proof of
possession lies on the prosecution and once
it is discharged legal burden would shift on
the accused. Standard of proof expected from
the prosecution is to prove possession
beyond all reasonable doubt but what is
required to prove innocence by the accused
would be preponderance of probability. Once
the plea of the accused is found probable,
discharge of initial burden by the
prosecution will not nail him with offence.
Offences under the Act being more serious in
nature higher degree of proof is required to
convict an accused.
13. It needs no emphasis that the expression
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completely logical definition of universal
application in the context of all the statutes.
‘Possession’ is a polymorphous word and
cannot be uniformly applied, it assumes
different colour in different context. In the
context of Section 18 of the Act once
possession is established, the accused who
claims that it was not a conscious possession
has to establish it because it is within his
special knowledge.
xxxx
15. From a plain reading of the aforesaid it
is evident that it creates a legal fiction and
presumes the person in possession of illicit
articles to have committed the offence in
case he fails to account for the possession
satisfactorily. Possession is a mental state
and Section 35 of the Act gives statutory
recognition to culpable mental state. It
includes knowledge of fact. The possession,
therefore, has to be understood in the context
thereof and when tested on this anvil, we find
that the appellants have not been able to
satisfactorily account for the possession of
opium.
16. Once possession is established the court
can presume that the accused had culpable
mental state and have committed the
offence….”
25. The Hon’ble Supreme Court in Rakesh Kumar
Raghuvanshi v. the State of Madya Pradesh reported in 2025
SCC OnLine SC 122 held in para 14, 15, 16, 20 and 21 as
under:
“14. Thus, before the Court holds the
accused guilty of the offence under the
NDPS Act, possession is something that the
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evidence. If the accused is found to be in
possession of any contraband which is a
narcotic drug, it is for the accused to
account for such possession satisfactorily, if
not, the presumption under Section 54 comes
into place.
15. Section 54 of the NDPS Act being
relevant in the context on hand is extracted
hereunder for convenient reference: “54.
Presumption from possession of illicit
articles. –In trials under this Act, it may be
presumed, unless and until the contrary is
proved, that the accused has committed an
offence under this Act in respect of — (a) any
narcotic drug or psychotropic substance or
controlled substance; (b) any opium poppy,
cannabis plant or coca plant growing on any
land which he has cultivated; (c) any
apparatus specially designed or any group of
utensils specially adopted for the
manufacture of any narcotic drug or
psychotropic substance or controlled
substance; or (d) any materials which have
undergone any process towards the
manufacture of a narcotic drug or
psychotropic substance or controlled
substance, or any residue left of the
materials from which any narcotic drug or
psychotropic substance or controlled
substance has been manufactured, for the
possession of which he fails to account
satisfactorily.”
16. Therefore, as envisaged by the provision
itself, unless and until the contrary is proved
in trials of cases involving offences coming
within the purview of the NDPS Act, it may
be presumed that the accused has committed
an offence under the Act in respect of any
articles prohibited to be possessed by him
and for the possession of which, he failed to
account satisfactorily. Therefore, it is the
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burden of the prosecution to establish that
the contraband was seized from the
conscious possession of the accused. Only
when that aspect has been successfully
proved by the prosecution, the onus will shift
to the accused to account for the possession
legally and satisfactorily.
xxxxxx
20. Section 35 of the NDPS Act deals with
the presumption of culpable mental state. It
states that in any prosecution under the
NDPS Act, the court shall presume that the
accused had the requisite mental state,
including intention, knowledge, and motive,
unless the accused can prove otherwise. This
shifts the burden of proof onto the accused to
demonstrate that they lacked knowledge or
intent regarding the possession of the drugs.
21. Conscious possession refers to a
scenario where an individual not only
physically possesses a narcotic drug or
psychotropic substance but is also aware of
its presence and nature. In other words, it
requires both physical control and mental
awareness. This concept has evolved
primarily through judicial interpretation
since the term “conscious possession” is not
explicitly defined in the NDPS Act. This
Court through various of its decisions has
repeatedly underscored that possession
under the NDPS Act should not only be
physical but also conscious. Conscious
possession implies that the person knew that
he had the illicit drug or psychotropic
substance in his control and had the intent or
knowledge of its illegal nature.”
26. Considering the statutory provision and the
settled law declared by the Hon’ble Supreme Court discussed
herein above, the following essentials emerge with respect to
proving culpability under the N.D.P.S. Act:
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(i) Existence of culpable mental state which
includes intention, motive, knowledge of a
fact, and belief in, or reason to believe, a
fact.
(ii) Conscious and exclusive possession of
the contraband or material in question as
prohibited under the N.D.P.S. Act.
(iii) For prosecution, a fact is proved only
when the Court believes it exists beyond
reasonable doubt and not based on
preponderance of probabilities.
27. It is apparent that the initial burden to proof that
the accused had conscious possession or ownership of a
particular property/land where from there has been alleged
recovery of substances prohibited under the N.D.P.S. Act lies on
the prosecution.
28. In the present case, on perusal of the deposition
of P.W.4, the Special Superintendent of Excise Intelligence
Bureau, it appears that he admitted in his cross-examination that
he was unaware of the whereabouts of that land they conducted
raid on, also, he could not describe the boundaries of the alleged
land from which recovery of the poppy plants was made.
Furthermore, P.W.5, the complainant-cum- Investigation Officer
of this case, has deposed in his cross-examination that he was
taken to the alleged land by the local people as he was not
acquainted with the lands where the poppy plants were
recovered and the owners thereof. In the same breath he deposed
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that the appellant/accused himself told him that the
appellant/accused was the owner of the aforesaid land during the
course of investigating but his statement were not recorded.
C.W.1, the Circle Officer of Biharsarif, deposed that the land of
khata no. 222 belongs to Vijay Mahto-appellant, son of Munshi
Mahto. On the other hand, C.W.2, Vijay Kumar Srivastava who
is revenue clerk, has brought Register II (new and old) in the
learned Trial Court and deposed that the land of khata no. 222 is
in the name of Munshi Mahto, son of Ugri Mahto. The
statements of the Court Witnesses contradict each other,
therefore, the prosecution has failed to establish, beyond
reasonable doubt, the ownership and possession of the land in
question by the accused.
29. The land from which the alleged recovery of
poppy plants was made is recorded in the name of one Munshi
Mahto, as evident from the entries in Register-II (Ext.9 and
Ext.9/A). Moreover, no credible evidence has been brought on
record to prove that the accused had any direct ownership or
possession over the said land. Furthermore, P.W.4, the Special
Superintendent of Excise, in his cross-examination, has candidly
admitted that he had no personal knowledge of the ownership of
the land and had not seen the accused at the place of occurrence.
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30. So far the submission that P.W.5 was the
complainant he should not have been made the investigation
officer in concerned I may make reference to the decision of
Hon’ble Supreme Court in State v. V. Jayapaul reported in
(2004) 5 SCC 223 wherein it was held as under:
“6. …….We find no principle or binding
authority to hold that the moment the
competent police officer, on the basis of
information received, makes out an FIR
incorporating his name as the informant, he
forfeits his right to investigate. If at all, such
investigation could only be assailed on the
ground of bias or real likelihood of bias on
the part of the investigating officer. The
question of bias would depend on the facts
and circumstances of each case and it is not
proper to lay down a broad and unqualified
proposition, in the manner in which it has
been done by the High Court, that whenever
a police officer proceeds to investigate after
registering the FIR on his own, the
investigation would necessarily be unfair or
biased…….”
31. Sections 154, 156 and 157 of Cr.P.C. permit the
Officer-In-Charge of Police Station to reduce the
information/complaint or otherwise (may be from other sources
like secret information, from hospital or telephonic message) of
a cognizable offence in writing, rush to the spot and further
investigate the matter. Investigation includes even search and
seizure. Section 53 of the N.D.P.S. Act authorizes the Central
Patna High Court CR. APP (SJ) No.474 of 2006 dt.12-08-2025
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Government or the State Government, as the case may be, invest
any officer of the department of drugs control, revenue or excise
or any other department or any class of such officers with
powers of an officer-in-charge of a police station for
investigation of offence under the N.D.P.S. Act.
32. The Constitution Bench of Hon’ble Supreme
Court in Mukesh Singh v. State (Narcotic Branch of Delhi)
reported in 2020 SCC OnLine SC 700 observed that merely
because the complainant conducted the investigation that would
not be sufficient to cast doubt on the entire prosecution version.
There is no specific bar against conducting investigation by the
informant/complainant himself. Only in a case where the
accused has been able to establish and prove the bias and
or/unfair investigation by the informant-cum-investigator and
the case of prosecution is merely based upon the deposition of
the informant-cum-investigator, meaning thereby prosecution
does not rely upon other witnesses, more particularly the
independent witnesses in the case, where the complainant
himself has conducted the investigation, such aspect of the
matter can certainly be given due weightage while assessing the
evidence on record
33. In the present case, on secret information, P.W.5
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made the recovery of the opium plants and seized the same and
investigated the same to find out who was involved in the
cultivation of opium plants. The seizure list witnesses have not
supported the prosecution case. No independent witnesses have
supported the prosecution case.
34. The Hon’ble Supreme Court in the case of
Jitendra v. State of M.P. reported in (2004) 10 SCC 562 has
held, with respect to seizure witness turning hostile, role of
independent witnesses and procedural lapses in matters under
N.D.P.S. Act, in para 5 and 6 as under:
“5. ………. The High Court relied on Section
465 CrPC to hold that non-production of the
material object was a mere procedural
irregularity and did not cause prejudice to
the accused.
6. In our view, the view taken by the High
Court is unsustainable. In the trial it was
necessary for the prosecution to establish by
cogent evidence that the alleged quantities of
charas and ganja were seized from the
possession of the accused. The best evidence
would have been the seized materials which
ought to have been produced during the trial
and marked as material objects. There is no
explanation for this failure to produce them.
Mere oral evidence as to their features and
production of panchnama does not discharge
the heavy burden which lies on the
prosecution, particularly where the offence is
punishable with a stringent sentence as
under the NDPS Act. In this case, we notice
that panchas have turned hostile so the
panchnama is nothing but a document
Patna High Court CR. APP (SJ) No.474 of 2006 dt.12-08-2025
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suggestion made by the defence in the cross-
examination is worthy of notice. It was
suggested to the prosecution witnesses that
the landlady of the house in collusion with
the police had lodged a false case only for
evicting the accused from the house in which
they were living. Finally, we notice that the
investigating officer was also not examined.
Against this background, to say that, despite
the panch witnesses having turned hostile,
the non-examination of the investigating
officer and non-production of the seized
drugs, the conviction under the NDPS Act
can still be sustained, is far-fetched.”
35. On point of seizure witnesses turning hostile,
the Hon’ble Supreme Court in Ashok v. State of M.P. reported
in (2011) 5 SCC 123, has held in para 9 that:
“9. The seizure witnesses turning hostile may
not be very significant, as it is not an
uncommon phenomenon in criminal trials,
particularly in cases relating to NDPS but
there are some other circumstances which,
when taken together, make it very unsafe to
uphold the appellant’s conviction.”
36. Having considered the entire materials available
on record, including the oral and documentary evidence, as well
as the submissions advanced on behalf of both parties, this
Court finds serious infirmities and inconsistencies in the
prosecution case which go to the root of the matter.
37. It is also pertinent to note that the seizure list
witnesses (P.Ws. 1 and 2) have not supported the prosecution
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version and have categorically denied witnessing any seizure of
opium plants. Their signatures, as per their deposition, were
obtained on plain papers without their knowledge of the
contents. Also, no independent public witness was examined to
corroborate the seizure, which casts serious doubt on the
authenticity of the recovery proceedings. Additionally, crucial
witnesses such as the Executive Magistrate, the Chemical
Examiner, and the Malkhana in-charge have not been examined.
Bhanu Prasad who was also a seizure list witness has not been
examined. The non-production and non-exhibition of the seized
samples in the Court is a significant lapse. It further appears
from the cross-examination of P.W.5, the Investigating Officer
in the present case, that the sample of the seized opium was sent
to the Chemical Examiner after a delay of 3 to 4 days, with no
explanation for the delay or evidence of proper custody, raising
concerns about the integrity of the sample.
38. In a criminal trial, the burden lies heavily on the
prosecution to prove its case beyond reasonable doubt. The
evidence on record falls short of this standard. The prosecution
case is riddled with material contradictions, procedural
irregularities, and lack of substantive evidence linking the
accused directly with the alleged offence.
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39. In view of the above, this Court is of the
considered opinion that the prosecution has failed to bring home
the charge against the accused. The benefit of doubt must,
therefore, go to the accused.
40. Accordingly, the judgment/order of conviction
and sentence passed by the learned Trial Court is set aside. The
accused, Vijay Mahto is hereby acquitted of the charge. He is on
bail and his bail bonds, if any, shall stand discharged.
41. The appeal is allowed accordingly.
(Sunil Dutta Mishra, J)
ritik/-
AFR/NAFR AFR CAV DATE 04.08.2025 Uploading Date 12.08.2025 Transmission Date 12.08.2025