NASIBUL ISLAM vs The Union of India Through Intelligence Officer, Narcotics ControlBureau, Patna
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3955 of 2024
Arising Out of PS. Case No.-4 Year-2018 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- Patna
======================================================
1. Nasibul Islam, Son of Najrul Islam, Resident of Naim Nagar, C-Block, P.O-
Main Gate Old Court Road, P.S.-Durgapur, Distt-Vardhman, West Bengal
2. Rahmat Ansari, Son of Khalil Miyan, Resident of Village- Pokharia, P.O.-
Basbutiya, P.S.- Palojori, Distt.- Deoghar, Jharkhand
... ... Appellants
Versus
The Union of India Through Intelligence Officer, Narcotics Control Bureau,
Patna, Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellants : Mr. Manoj Kumar Singh, Advocate
Mr. Risup, Advocate
Ms. Salini Raje, Advocate
For the Union of India : Mr. Bindhyanchal Rai, Sr. Panel Counsel
Mr. Manoj Kumar Singh, C.G.C.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 06-07-2026
Heard Mr. Manoj Kumar Singh, learned counsel
appearing for the appellants, and Mr. Bindhyanchal Rai, learned
Senior Panel Counsel appearing on behalf of the Union of India.
2. The instant criminal appeal has been preferred by
the appellants against the judgment of conviction dated
10.07.2024 and the order of sentence dated 16.07.2024 passed
in Special (NDPS Act) Case No. 7 of 2018 arising out of F. No.
NCB/PZU/V/04/2018 by the Court of the learned Exclusive
Special Judge (NDPS Act), Court No. 1, Patna, whereby and
whereunder both the appellants have been convicted of the
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offences punishable under Sections 20(b)(ii)(C), 25, and 29 of
the NDPS Act and sentenced to undergo rigorous imprisonment
for ten years with a fine of Rs. 1,00,000/- each for the offence
punishable under Section 20(b)(ii)(C) of the NDPS Act and, in
default of payment of fine, to further undergo rigorous
imprisonment for a period of four months. The same sentence
has been awarded to the appellants for the offences punishable
under Sections 25 and 29 of the NDPS Act. All the sentences
awarded to the appellants have been directed to run
concurrently.
Prosecution Story: -
3 . As per the prosecution, on 26.01.2018 at about
6:00 p.m., the Intelligence Officer of the Narcotics Control
Bureau (NCB), Patna received specific the secret information
that a truck bearing Registration No. WB-39B-0214 carrying a
huge consignment of ganja was coming from Assam via
Siliguri, Begusarai and Bakhtiarpur and would deliver the
contraband near Masjid, Jethuli, Fatuha between 12:00 midnight
and 2:00 a.m. to one Sunil and Jitendra. The information was
reduced into writing and, upon the direction of the
Superintendent, NCB, Patna, a raiding team was constituted.
The team reached near Masjid, Jethuli, Fatuha, after that NCB
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team contacted two independent persons and requested them to
be the witnesses in raid by sharing them about the secret
information. At about 1:15 a.m. on 27.01.2018, the said truck
was intercepted and the prosecution alleges that Appellant No.
1, Nasibul Islam, was driving the truck, while Appellant No. 2,
Rahamat Ansari, was travelling as the co-driver. Notices under
Section 50 of the NDPS Act were served upon both the
appellants, who opted to be searched before a Gazetted Officer.
Accordingly, they, along with the truck, were taken to the NCB
Office, Patna, where their personal search was conducted in the
presence of the Superintendent, NCB, but nothing incriminating
was recovered from their persons. The prosecution further
alleges that during the search of the truck, one blue plastic drum
kept over cement bags in which 13 rectangular packets with
brown colour tape were recovered and three rectangular packets
kept inside the cabin were also recovered. In all, sixteen packets
wrapped with brown tape containing a brown dried substance
suspected to be ganja were found. Upon testing with the drug
detection kit, the substance allegedly tested positive for ganja.
The total weight of the recovered contraband was found to be
104 kilograms. Two representative samples of 25 grams each
were drawn in duplicate, sealed and marked as S-1 and S-2,
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while the remaining contraband was sealed in four gunny bags
marked P-1 to P-4. The truck, 420 bags of cement, the blue
drum and two mobile phones were also seized under the
provisions of the NDPS Act, and a search-cum-seizure list,
panchnama and test memo were prepared. It is further alleged
that notices under Section 67 of the NDPS Act were issued to
the independent witnesses as well as to both the appellants.
According to the prosecution, Appellant No. 1, Nasibul Islam, in
his voluntary statement, admitted that he was the driver of the
truck owned by his father and that he, along with Appellant No.
2, Rahamat Ansari, was transporting the seized ganja, which had
been loaded at Kubarpur handed over to them by one Wasim @
Pranav Da of Vishalgarh, Tripura for delivery to Sunil and
Jitendra of Jethuli, Fatuha. Similarly, Appellant No. 2, Rahamat
Ansari, is stated to have admitted in his voluntary statement that
he was the co-driver of the truck and that the ganja had been
loaded at Kubarpur for delivery to the said persons at Fatuha.
Thereafter, both appellants were arrested on 27.01.2018 for the
alleged offences punishable under Sections 20(ii)(C), 25 and 29
of the NDPS Act. After medical examination, they were
produced before the learned Special Judge, NDPS, Patna, who
remanded them to judicial custody. The seized contraband and
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duplicate samples were deposited in the NCB Malkhana, while
one sample was sent to the Central Revenues Control
Laboratory (CRCL), Kolkata, for chemical examination. During
investigation, various communications were sent to different
authorities regarding verification of the vehicle, bank accounts,
ownership of the truck, and the persons allegedly involved in
the transportation of the contraband. On the basis of the
recovery of 104 kilograms of ganja, the alleged voluntary
statements of both appellants recorded under Section 67 of the
NDPS Act, the chemical examination report, and other materials
collected during investigation, the prosecution filed the
complaint alleging that Appellant No. 1, Nasibul Islam, and
Appellant No. 2, Rahamat Ansari, knowingly possessed and
transported commercial quantity of ganja from Assam to Bihar
in contravention of Section 8 of the NDPS Act, thereby
committing offences punishable under Sections 20(ii)(C), 25
and 29 of the NDPS Act, 1985. It is further alleged that the
seized truck and the contraband are liable to confiscation under
Section 60 of the NDPS Act.
4. On the basis of the complaint petition filed by
the Intelligence Officer, NCB, Patna, a case bearing NCB Patna
No. NCB/PZU/V/4/2018 dated 28.01.2018 was registered under
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Sections 8, 20(ii)(C), 25 and 29 of the NDPS Act against the
appellants, which set the criminal law in motion.
5. After investigation, on 16.08.2018, cognizance
of the offences punishable under Sections 20(ii)(C), 25 and 29
of the NDPS Act was taken against the appellants.
6. The appellants were initially charged with the
offences punishable under Sections 20, 25, and 29 of the NDPS
Act. Subsequently, on 24.06.2024, modified charges under
Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act were framed
against the appellants. Accordingly, the appellants finally stood
charged with the offences punishable under Sections 20(b)(ii)
(C), 25, and 29 of the NDPS Act. The charges were read over
and explained to them in Hindi, to which they pleaded not guilty
and claimed to be tried.
7. During the trial, the prosecution examined the
following witnesses:
Sl No. Name of witness Description
PW-1 Prakash Ram Member of raiding team
PW-2 Ravi Ranjan Kumar Member of raiding team
PW-3 K.V. Robinson Gangte Superintendent, NCB, Patna
PW-4 Anil Kumar Prasad Seizing officer-cum-
Complainant
8. The prosecution also proved the following
documents and got them marked as exhibits:
Exhibit No. Description of Exhibit Attested
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By/Proved
By
Exhibit P-1/PW-1 Search Cum Seizure List PW-1,2,3
and 4
Exhibit P-1/a, 1/b,
1/c, 1/d, 1/e & 1/f
—PW-1
Signatures of Anil Kumar Prasad,
Prakash Kumar, K.V. Robinson
Gangte, Ravi Ranjan Kumar,
Rambhajan Rai & Rajesh Kumar
on Search Cum Seizure List
PW-3
Exhibit P-2/PW-3 Information alongwith Formation
PW-3, PW-4
of Team (NCB-1)
Exhibit P-3/PW-3 Compliance Report U/s-57 NDPS
PW-3, PW-4
Act
Exhibit P-4 &
4/1---PW-4
Carbon Copies of notice U/s-50
NDPS Act to accused Nasibul
Islam & Rahmat Ansari
respectively
PW-4
Exhibit P-5/PW-4 Test Memo PW-4
Exhibit P-6 &
6/1---PW-4
Arrest Memo of accused Nasibul
Islam & Rahmat Ansari
respectively
PW-4
Exhibit P-7 &
7/1---PW-4
Notice U/s-67 NDPS Act to
accused Nasibul Islam & Rahmat
Ansari respectively
PW-4
Exhibit P-7/2 &
7/3---PW-4
Notice U/s- 67 NDPS Act to
witness Rambhajan Rai & Rajesh
Kumar respectively
PW-4
Exhibit P-8/PW-4 Statement U/s-67 NDPS Act of
PW-4
accused Nasibul Islam
Exhibit P-9 &
10---PW-4
Jama-Talashi of accused Nasibul
Islam & Rahmat Ansari
respectively
PW-4
Exhibit P-11/PW-
4
Godown/Malkhana Receipt PW-4
Exhibit P-12/PW-
4
Complaint Petition PW-4
Exhibit P-13/PW-
4
Carbon Copy of Test memo with
receiving
PW-4
Exhibit P-13/1----
PW-4
Report of CRCL, Kolkata
regarding examination of seized
contraband
PW-4
Exhibit P-14----
PW-1
Statement U/s-67 NDPS Act of
accused Rahmat Ansari
PW-1, PW-4
Exhibit P-14/1----
PW-1
Statement U/s-67 NDPS Act of
witness Rambhajan Rai
PW-1, PW-4
Exhibit P-15 &
15/1----PW-1
Intimation of arrest of accused
Nasibul Islam & Rahmat Ansari
respectively
PW-4
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Exhibit P-16 Certification report alongwith
Inventory & Photographs of seized
articles
PW-2
9. After completion of the prosecution evidence, the
statements of the appellants were recorded by the trial court
under Section 313 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’). The appellants denied the material circumstances
appearing against them in the prosecution evidence and stated
that they were innocent and had falsely been implicated in the
present case. They pleaded innocence.
10 . The appellants did not adduce any oral evidence
in their defence, however, the following documentary evidence
was produced on their behalf:-
Exhibit No. Description of Exhibit Attested By/Proved By
Exhibit-A Order Sheet dt.
28.01.2018 of the present
case i.e., Special (NDPS)
Case No. 7/2018
Certified Copy
Exhibit-B Application dt. 28.01.2018
filed before court in
present case, i.e., Special
(NDPS) Case No. 7/2018
alongwith Annexure “A”.
Certified Copy
Consideration and Analysis :-
11 . Heard both sides and perused the impugned
judgment, the evidence adduced by the prosecution and the
appellants, and the statements of the appellants recorded under
Section 313 of the Code of Criminal Procedure (in short,
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"Cr.P.C.").
12. The instant matter relates to the recovery of a
large quantity of ganja from a truck. As per the allegation, both
the appellants were found inside the said truck with the alleged
contraband and, accordingly, they were charged with the
offences punishable under Sections 20(b)(ii)(C), 25 and 29 of
the NDPS Act and held guilty of those offences.
13. The first and foremost argument advanced by the
appellants' counsel is that the seized contraband was neither
produced before the trial court, nor was sampling carried out
before the Magistrate, nor was videography of the seized
material and preparation of the inventory carried out before the
Magistrate though at belated stage of trial an attempt to fill up
the said lacuna was made but that was not sufficient to discharge
the prosecution from its statutory obligation arisen out of
Section 52A of the NDPS Act. Therefore, there was a complete
violation of Section 52A of the NDPS Act. In support of this
contention, learned counsel for the appellants has placed
reliance upon the judgment of the Hon'ble Apex Court in
Jitendra vs. State of M.P. , reported in (2004) 10 SCC 562 , and
has also placed reliance upon the judgment of this Court passed
in Cr. APP (DB) No. 705 of 2018 , in the case of Sunil Kumar
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vs. The State of Bihar and other analogous criminal appeals,
wherein the aforesaid judgment of the Hon'ble Apex Court was
taken into consideration and followed.
14. In rebuttal of this contention, learned counsel
appearing for the Union of India, while placing reliance upon
the judgment of the Hon'ble Division Bench of this Court passed
in Cr. APP (DB) No. 445 of 2023 , in the case of Shankar Das
vs. The State of Bihar and other analogous appeals, has argued
that mere discrepancies and irregularities in the compliance with
the provisions of Section 52A of the NDPS Act are not fatal to
the prosecution and would not entitle the accused/appellants to
be acquitted of the charged offences. In support of this
contention, learned counsel has also placed reliance upon the
judgment of the Hon'ble Apex Court in the case of Narcotics
Control Bureau vs. Kashif , reported in (2024) 11 SCC 372,
which was followed by the Hon'ble Division Bench of this
Court in the above-cited case.
15. In the light of the above submissions and
contentions, I have gone through the evidences and at first, I
would like to discuss the importance of the physical evidence as
non-production of the physical evidence would lead to a negative
inference against the prosecution within the meaning of Section
114(g) of the Evidence Act, as in every criminal matter involving
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the recovery of a particular material used in the commission of an
offence or against which or for which an offence is committed, its
production is considered very essential, particularly in offences
under the NDPS Act, which are completely based on the recovery
of the contraband. Though mere non-production of the seized
contraband during the trial may not be fatal if there is reliable
evidence in respect of the seizure, drawing of samples in
accordance with the provisions of Section 52A of the NDPS Act,
and there is an explanation for the non-production of the
contraband before the trial court. But in the present matter, it
appears from a perusal of the records that an application was filed
by the Intelligence Officer, namely Ravi Ranjan, before the
learned Judicial Magistrate, 1st Class, Rajat Deep, Patna, seeking
certification of the correctness of the photographs and sampling of
the seized narcotic drugs and psychotropic substances. The filing
of the said application appears to have been an attempt by the
NCB, Patna Zonal Unit, to cure the defect arising from its earlier
non-compliance with the mandatory provisions of Section 52A of
the NDPS Act. Pursuant to the said application, the process
relating to the preparation, verification and certification of the
inventory, taking of photographs, and drawing of representative
samples in terms of Section 52A of the NDPS Act was undertaken
before the learned Judicial Magistrate, and Exhibit-16 has been
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brought on record in support thereof. However, I am unable to
treat Exhibit-16 as constituting valid compliance with Section 52A
of the NDPS Act for the following four reasons. Firstly, the
proceedings were undertaken at a highly belated stage of the trial.
By that time, all the four prosecution witnesses had already been
examined, and only PW-1, who had earlier been examined, was
subsequently re-examined on 12.09.2023 and 13.09.2023 on
certain additional aspects. Thus, the process under Section 52A
was initiated when the trial had virtually reached its conclusion.
Secondly, the trial court records do not indicate that any
information regarding the proceedings conducted before the
learned Judicial Magistrate on 03.02.2023 was ever communicated
to the accused/appellants. The records further reveal that the entire
process of certification, photography, and sampling was carried
out only in the presence of the NCB officials, thereby excluding
the accused from the said proceedings. Thirdly, and more
importantly, the prosecution has failed to produce any material
showing that the samples allegedly drawn before the learned
Judicial Magistrate on 03.02.2023 were ever forwarded to the
Forensic Science Laboratory for examination. Consequently, the
prosecution has relied entirely upon the FSL report dated
06.02.2018, which admittedly pertains to samples drawn by the
Intelligence Officers of the NCB, Patna, and not to the samples
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allegedly drawn before the Judicial Magistrate. Thus, there is no
scientific evidence on record establishing that the samples drawn
during the purported compliance with Section 52A were ever
examined by the FSL. Fourthly, although the prosecution sought to
rely upon the proceedings conducted before the learned Judicial
Magistrate to establish compliance with Section 52A of the NDPS
Act, neither the learned Judicial Magistrate, who allegedly
supervised and certified the entire process, nor any other witness
competent to prove the said proceedings was examined by the
prosecution. The examination of the learned Judicial Magistrate
was particularly essential in view of the belated nature of the
exercise. Although Ravi Ranjan Kumar (PW-2), the concerned
NCB official, was examined as a prosecution witness, his
deposition had already been recorded on 13.06.2022, much before
the application dated 03.02.2023 was filed, and no effort was made
thereafter to recall him for proving the subsequent proceedings.
The order sheets of the trial court further do not disclose that the
defence was even made aware of the application dated 03.02.2023
filed by the NCB officials, as there is no endorsement showing
service of a copy thereof upon the accused/appellants. It is true
that the order sheet dated 12.10.2022 records that an application
dated 11.07.2022 filed by the prosecution was pressed; however,
the said application is not available on the trial court record. These
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circumstances indicate that the prosecution attempted, at the
concluding stage of the trial, to rectify the deficiency arising from
its failure to comply with the mandatory requirements of Section
52A of the NDPS Act. Such a belated exercise cannot absolve the
prosecution of its statutory obligation to ensure strict compliance
with the said provision. Although Section 52A does not prescribe
any specific time limit for compliance with sub-sections (1), (2),
and (3), the statutory procedure is expected to be followed within a
reasonable time. In particular, the representative samples required
for forensic examination ought to be drawn before the Judicial
Magistrate without undue delay. If there is any substantial delay,
the prosecution must satisfactorily explain the same. No such
explanation has been offered in the present case. Moreover, there
is absolutely no material to show that the samples allegedly drawn
before the learned Judicial Magistrate were ever examined by the
FSL, nor has any corresponding FSL report been produced. The
appellants were also deprived of the opportunity to cross-examine
either the concerned Intelligence Officers or the learned Judicial
Magistrate with respect to the subsequent proceedings undertaken
on 03.02.2023. Consequently, the entire exercise was carried out
behind the back of the accused, thereby seriously prejudicing their
defence. In the aforesaid circumstances, I am of the considered
opinion that there has been a gross negligence in adopting the
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mandatory provisions of Section 52A of the NDPS Act in the
present case.
15.1. Although, in view of the principles laid down
by the Hon'ble Apex Court in Bharat Aambale vs. State of
Chhattisgarh , reported in (2025) 8 SCC 452 , mere non-
compliance with the procedure prescribed under Section 52A of
the NDPS Act or non-violation of the Standing Orders/rules
made thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence. The present case not
only involves the non-compliance with the provisions of Section
52A of the NDPS Act but also the prosecution failed to produce
the physical evidence either in its primary or secondary form.
Moreover, the prosecution has not even taken the plea that the
seized material had been destroyed during the course of the trial.
In the case of Jitendra (supra ) , the Hon'ble Apex Court
highlighted the importance of the production of the seized
articles as material exhibits and held that, in the absence of any
explanation for their non-production, it would be deemed that
they did not remain connected with the seizure report and the
substance that was allegedly seized from the possession of the
accused. A similar situation exists in the present matter, as the
prosecution did not produce the seized articles before the trial
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court. Learned counsel appearing for the Union of India has
failed to furnish any explanation for the non-production of the
alleged contraband in physical form before the trial court.
Therefore, in such a situation, the prosecution cannot be said to
have successfully established the connection between the
forensic report in respect of the samples, which are stated to
have been drawn from the seized contraband as per the
prosecution, and the alleged narcotic substance that was
allegedly seized from the truck. In the case of Union of India
vs. Jaroopram , reported in (2018) 4 SCC 334 , the Hon'ble Apex
Court emphasized on the production of the bulk quantity of the
seized contraband in the absence of evidence regarding its
disposal. The relevant observations made by the Hon'ble Apex
Court are extracted hereinbelow:
“ 10. Omission on the part of the prosecution to
produce the bulk quantity of seized opium would create a
doubt in the mind of the Court on the genuineness of the
samples drawn and marked as A, B, C, D, E, F from the
allegedly seized contraband. However, the simple argument
that the same had been destroyed, cannot be accepted as it is
not clear that on what authority it was done. Law requires
that such an authority must flow from an order passed by the
Magistrate. On a bare perusal of the record, it is apparent
that at no point of time any prayer had been made by the
prosecution for destruction of the said opium or disposal
thereof otherwise. The only course of action the prosecution
should have resorted to is for its disposal is to obtain an
order from the competent court of Magistrate as envisaged
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under Section 52-A of the Act. It is explicitly made under the
Act that as and when such an application is made, the
Magistrate may, as soon as may be, allow the application (see
also Noor Aga v. State of Punjab [Noor Aga v. State of
Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] ).”
15.2. Thus non-production of the seized contraband
may not be fatal to the prosecution in every case if there is
reliable evidence in respect of the seizure of the alleged
contraband and the drawing of samples therefrom. However, in
the present matter, no such reliable evidence was adduced by the
prosecution, nor did the prosecution contend that, on account of
the destruction of the seized contraband, the same could not be
produced before the trial court. Further, in respect of offences
under the NDPS Act, which mainly involve the recovery of
contraband, the best evidence would be the seized material,
which ought to be produced before the trial court. Though, after
due compliance with the provisions of Section 52A of the NDPS
Act and with the permission of the trial court or the concerned
court for the destruction of such material, an explanation may be
given for its non-production if the same has been destructed but
no such situation exists in the present matter. Accordingly, this
Court finds substance in the above contention raised by learned
counsel for the appellants.
16. Now, I come to other aspects of the prosecution's
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case particularly with regard to fairness in the investigation.
16.1. It has been argued by the appellants' counsel
that, in the present matter, the NCB official who is said to have
received the secret information became the Investigating Officer
and also took the samples from the seized contraband. Thus, the
receipt of the secret information, seizure of the alleged
contraband, preparation of the seizure memo, and drawing of
samples therefrom were all carried out by the same NCB
official, which raises a question with regard to the fairness of
the investigation. Learned counsel has further argued that the
conviction of the appellants is based solely on the evidence of
the NCB officials, despite the prosecution's claim that two
independent persons were present from the beginning of the
seizure of the truck containing the alleged contraband until the
completion of all the formalities relating to the preparation of
the relevant documents, etc., who were neither produced nor
examined by the prosecution before the trial court, without
giving any plausible explanation. It has been further argued that
the order-sheet dated 28th January, 2018 of the trial court clearly
shows that all the seized materials, including the contraband,
were not produced before the trial court, though, as per the
prosecution, the apprehended accused/appellants were produced
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before the trial court on that day. In the entire order-sheet of that
date, there is no mention of the production of the contraband or
the other seized materials before the trial court by the NCB
officials.
16.2. In the light of the above contention, I have
gone through the evidences. The examination of an independent
witness is not a mandatory requirement, and such non-
examination cannot necessarily be deemed to be fatal to the
prosecution case. However, the non-examination of independent
witnesses, despite their presence on every occasion when all the
documents pertaining to the seized contraband were prepared,
without any explanation, may be taken against the prosecution
to some extent. In the instant matter, as per the prosecution
complaint filed by the NCB, the NCB team, before proceeding
to the alleged place, contacted two persons, namely, Rambhajan
Rai and Rajesh Kumar, to make them witnesses to all the
proceedings pertaining to the search and seizure, etc., and made
them aware of the secret information. Thereafter, they
proceeded to the alleged place where the truck was to arrive. As
per the prosecution case, the truck was intercepted in their
presence and notice under Section 50 of the NDPS Act was
given to the accused at the place of interception before them and
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the further proceedings were conducted at the NCB office,
Patna, before the Superintendent, K. V. Rovinson Gangte (PW-
3). During all these proceedings, as well as the proceedings that
were later conducted before PW-3, the said two independent
persons remained present, and in the complaint they were cited
as prosecution witnesses. However, during the trial, they were
neither produced nor examined. Surprisingly, before the trial
court, PW-1 deposed in his cross-examination, in paragraph 20,
that there was no document pertaining to the identification of
the independent witnesses on record. PW-4, the Investigating
Officer, deposed in his cross-examination, in paragraph 10, that
he did not get the names and addresses of the independent
witnesses verified and further stated that both the witnesses did
not have any identity card with them. He further stated in the
same paragraph that, during the investigation, he did not verify
the addresses of the said independent witnesses. It is not the
case of the prosecution that the said two independent persons,
namely, Rambhajan Rai and Rajesh Kumar, were present at the
place of recovery by chance. Rather, the prosecution story
shows that they were contacted by the NCB officials to make
them witnesses to every procedure pertaining to the search,
seizure, and sampling. Further, as per PW-3, the said
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independent witnesses were present when the relevant
proceedings with regard to the seized contraband were
conducted before him.
16.3. In the said situation, when the two
independent persons remained in contact with the NCB officials
from the very beginning till the end of the search and seizure
proceedings, there ought to have been a reasonable explanation
for not producing them. The Investigating Officer stated that he
did not make any attempt to get their names and addresses
verified during the investigation. Therefore, this circumstance
goes against the prosecution and raises a question regarding the
fairness of the investigation, and the same cannot be ignored
when the conviction for an offence attracting stringent
punishment is based solely on the evidence of the NCB officials.
17. Now, I come to the conduct of the appellants.
As per Section 8 of the Evidence Act, the conduct of a person
who is an accused of an offence is relevant if such conduct
influences or is influenced by any fact in issue or relevant fact.
In the instant matter, as per the prosecution story, the NCB team
received the secret information that the accused/appellants were
coming from Assam via Siliguri in a truck carrying a huge
consignment of narcotic materials, which was to be delivered to
Patna High Court CR. APP (SJ) No.3955 of 2024 dt.06-07-2026
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two persons. Upon noticing the alleged truck coming from a
particular direction, they signaled it to stop. At that time, the
NCB officials were in plain clothes, and it was midnight. Upon
noticing the signal, the appellants stopped the truck, got down
from it in a normal manner, and did not make any attempt to flee
from the place of interception. The said conduct of the
appellants is relevant and lends support to their plea of being
bona fide persons. In this regard, it is also relevant to mention
that the NCB officials claimed to have identified the truck while
it was in motion in the light of a torch when it was approaching
them with its headlights on. However, it would be very difficult
for a person to recognize the registration number of a moving
vehicle under such circumstances.
18. There are some other circumstances which also
raise some questions with regard to the fairness of the
investigation. Firstly, after seizing the alleged truck along with
the contraband, no attempt was made by the NCB officials to
take the contraband and the accused persons including the truck
to the nearest police station or Magistrate, and they were taken
straightaway to the NCB office, Patna. Secondly, as per the
prosecution, the notice under Section 50 of the NDPS Act was
given to the appellants at the spot where the truck was
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intercepted, though the instant matter does not relate to the
recovery of any contraband from the person of the appellants.
However, the said notice is relevant to show the fairness of the
investigation. The prosecution witnesses deposed that the notice
under Section 50 of the NDPS Act was given to the appellants at
the spot, upon which they made their endorsement
acknowledging receipt of the same with their signatures. But,
from a perusal of Exhibit-P/4, the notice given under Section 50
of the NDPS Act, only the signatures of the appellants are
available, and further, the place where the said notice was given
is shown as Patna, whereas, as per the prosecution case, the
same was given to the appellants at Jethuli, Fathua, which is
situated about 45 kilometers from Patna. Thirdly, after the
bodily search of the appellants, a search memo was also
prepared, and it is the case of the prosecution that, except for the
preparation and service of the notice under Section 50 of the
NDPS Act, which was conducted at the spot of recovery, all
other proceedings were carried out at the NCB office, Patna,
including the said bodily search of the appellants. Therefore, if
the said fact is deemed as true, then the notice given to the
appellants under Section 50 of the NDPS Act ought to have
been recovered from the possession of the appellants. However,
Patna High Court CR. APP (SJ) No.3955 of 2024 dt.06-07-2026
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in the Jamatalashi Memo (Exhibit P-9), there are no details of
recovery of the notice which is said to have been given to the
appellants under Section 50 of the NDPS Act. Fourthly, as per
the prosecution case, a panchnama was also prepared at the
NCB office, Patna, but the same was not brought on record.
18.1. In view of these circumstances appearing
from the prosecution evidences, the evidence of the two
independent persons, namely, Rambhajan Rai and Rajesh
Kumar, was very material, as they were the best independent
persons to explain these circumstances. But, they were withheld
by the prosecution, and their non-examination, in the context of
other circumstances, particularly the non-production of the
seized contraband before the trial court, non-preparation of the
inventory, and non-drawing of samples from the seized
contraband before the Magistrate, appears to be fatal to the
prosecution case.
Conclusion:-
19. For the reasons discussed above, this Court is of
the considered opinion that though the prosecution witnesses,
PWs-1, 2, 3, and 4, who were NCB officials, remained
consistent with the prosecution story in their court evidence, but
the non-production of the seized contraband before the trial
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court without any explanation, complete non-compliance with
Section 52A of the NDPS Act, and further, non-examination of
the two independent persons who were made witnesses by the
NCB intentionally, cast serious doubt on the prosecution case.
Therefore, it would not be safe to convict the appellants for the
charged offences under the NDPS Act in connection with the
seized narcotic contraband. The findings and conclusion of the
trial court holding the appellants guilty of the charged offences
do not inspire the confidence of this Court. Accordingly, this
Court holds that the prosecution miserably failed to prove the
guilt of the appellants for the charged offences beyond
reasonable doubt. On account of the above-discussed
circumstances, the prosecution was not entitled to get the benefit
of the presumption under Section 54 of the NDPS Act, since
from the very beginning, the prosecution failed to discharge its
burden, and therefore, the impugned judgment of conviction
dated 10.07.2024 and the impugned order of sentence dated
16.07.2024 passed by the learned Exclusive Special Judge
(NDPS Act), Court No. 1, Patna, in connection with Special
(NDPS Act) Case No. 7 of 2018 arising out of F. No.
NCB/PZU/V/04/2018, convicting and sentencing the appellants
for the charged offences, are hereby set aside.
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20. Accordingly, the appeal stands allowed.
21. Both the appellants are in jail, therefore, they
are directed to be released forthwith if their custody is not
required in any other case.
22. Let a copy of this judgment, as well as the
records of the trial court, be sent forthwith to the court
concerned for needful compliance and necessary action.
(Shailendra Singh, J)
maynaz/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 15.07.2026
Transmission Date 15.07.2026