Abdul Tauffique vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3367 of 2024
CNR No. BRHC010696632024
Arising Out of PS. Case No.-65 Year-2020 Thana- KUTUMBA District- Aurangabad
======================================================
Abdul Tauffique, Son of Md. Nurahasan @ Md. Noor Hasan @ Noor Hasan,
R/o Village- Sikarhatta Khurd, P.S.- Sikarhatta, District- Bhojpur, Arrah.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manoj Kumar, Adv.
For the State : Mr. Syed Ashfaque Ahmad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 26-10-2026
Mr. Manoj Kumar, learned counsel for the
appellant and Mr. Syed Ashfaque Ahmad, learned APP for the
State, are present and they are heard.
2. The instant appeal has been preferred against the
judgment of conviction dated 30.05.2024 and the consequent
order of sentence dated 06.06.2024 passed by the learned
st
Special Judge (NDPS)-cum-Additional Sessions Judge-1 ,
Aurangabad, in connection with G.R. Case No. 03 of 2020
arising out of Kutumba P.S. Case No. 65 of 2020, whereby and
whereunder the appellant has been convicted for the offences
punishable under Sections 20(b)(ii)(C), 25 & 29 of the Narcotic
Drugs and Psychotropic Substances Act (in short, ‘NDPS Act’).
The appellant has been sentenced to undergo rigorous

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imprisonment for ten years and to pay a fine of Rs. 1,00,000/-
(Rupees One Lakh only) for the offence under Section 20(b)(ii)
(C) of the NDPS Act. Similar sentences of rigorous
imprisonment for ten years and a fine of Rs. 1,00,000/- (Rupees
One Lakh only) each have been imposed under Sections 25 and
29 of the NDPS Act. In default of payment of the fine, the
appellant has been directed to undergo rigorous imprisonment
for six months. All the sentences have been ordered to run
concurrently.
Prosecution Story :
3. The prosecution case, in brief, is that on
28.04.2020 at about 22:00 hours, the informant, who was posted
as a police officer in Aurangabad district, proceeded for night
patrolling along with the armed police force. At about 22:30
hours, he was informed by the Officer-in-Charge of Kutumba
Police Station that a reliable information had been received
regarding transportation of ganja from Odisha through
Jharkhand towards Ara Bhojpur in Bihar. Accordingly, the
police party proceeded towards Sanda Check Post and reached
there at about 23:00 hours, where they started keeping vigil over
suspicious vehicles coming from the direction of Jharkhand. At
about 7:00 hour, further reliable information was received that a

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truck bearing registration No. JH10W-9287, which appeared to
be empty from outside, had a specially constructed secret
chamber in its body in which ganja had been concealed and that
the said truck was likely to proceed towards Chhatarpur. The
said information was conveyed to the police party and the police
personnel became alert. At about 8:00 hours, the aforesaid truck
was seen approaching from the direction of Hariharganj. The
police party immediately placed a barrier and obstructed the road.
On the direction of the police officer, the members of the police
party surrounded the truck. The driver and a person sitting beside
him were asked to stop the vehicle and come down. On enquiry,
the driver disclosed his name as Pawan Kumar, whereas the
person accompanying him, who disclosed himself to be the co-
driver, identified himself as Abdul Tauffique, the appellant
herein. In the meantime, several persons from the nearby area
assembled at the place of interception. Two persons, namely,
Mohammad Aslam Ansari and Suresh Paswan, were requested
to act as independent witnesses, to which they agreed. It is
claimed that before conducting the search, the members of the
police party offered themselves for search and thereafter the
independent witnesses were also searched. The driver Pawan
Kumar and the appellant Abdul Tauffique were then informed of
their rights under Section 50 of the NDPS Act and were

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apprised that they could have their personal search conducted
before a Gazetted Officer or a Magistrate. However, they
declined to avail the said right and stated that the presence of
such officer was not required and that the search could be
conducted by the police party. Notices under Section 50 of the
NDPS Act were served upon them in the presence of the
independent witnesses. Upon personal search of the driver
Pawan Kumar, his driving licence, Aadhaar card, a Nokia
mobile phone containing Airtel SIM No. 9507924421 and cash
of Rs. 2,700/- were allegedly recovered. From the personal
search of the appellant Abdul Tauffique, who was stated to be
the co-driver, his driving licence, voter identity card, an Axis
Bank ATM card, a Bank of Baroda ATM card, cash of Rs.
1,200/- and a mobile phone containing SIM No. 9501260872
were allegedly recovered. Thereafter, the truck bearing
registration No. JH10W-9287 was searched. The chassis and
engine numbers appearing on the vehicle were allegedly found
to be tampered with and were also illegible. Certain vehicle
documents were also recovered from the truck. It is further
alleged that the truck had a specially constructed secret
chamber/box in its body. Upon opening the said secret chamber,
343 packets allegedly containing ganja, wrapped in plastic and

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kept in 14 plastic sacks, were allegedly recovered. The packets
were marked as P-1 to P-343 and were weighed individually.
The total weight of the recovered ganja was found to be 349
kilograms and 730 grams. The driver and the co-driver
(appellant) were asked to produce valid documents or authority
for possessing and transporting the contraband but they could
not produce any such document or licence. A seizure list was
accordingly prepared in the presence of the two independent
witnesses and a copy thereof was supplied to the accused
persons. It is further alleged that during the course of the search
and seizure proceedings, the driver Pawan Kumar disclosed that
about eight days earlier, one Chhotu Singh, son of Ravindra
Singh, had offered to pay Rs.30,000/- each to him and the
appellant Abdul Tauffique for transporting the truck to Balamgir
in Odisha. He further disclosed that they were instructed to take
the truck to a particular place in Odisha where a person would
load ganja into a specially constructed secret chamber in the
truck and thereafter they were to transport the vehicle through
Jharkhand towards Bhojpur. It was further revealed that Chhotu
Singh had provided a mobile number and instructed them to
contact one Umesh Kumar upon reaching Hariharganj.
According to the prosecution, the said Umesh Kumar met them

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near Hariharganj and thereafter accompanied them. The truck
was subsequently taken to Odisha where according to the
prosecution, Umesh Kumar loaded fourteen sacks containing
ganja in the specially constructed secret chamber of the truck.
The remaining portion of the truck was allegedly kept empty so
that, from outside, it would appear that no goods were being
transported. The prosecution further alleges that one Chhotu
Singh and Laddu Singh @ Digambar Nath Singh remained in
contact with the driver and the appellant over mobile phones
and obtained information regarding their movements and
location. It was revealed that after returning from Odisha, the
truck reached Hariharganj, where said Umesh Kumar got down
and instructed them to proceed towards Bhojpur and deliver the
ganja at the rice mill of said Chhotu Singh. It is also alleged that
the accused persons used different registration numbers for the
same truck. When the vehicle was being operated in Jharkhand,
registration No. JH10W-9287 was allegedly displayed, whereas
while travelling outside Jharkhand including Bihar and Uttar
Pradesh, registration No. UP67T-0595 was allegedly used. The
relevant documents relating to both registration numbers were
allegedly kept inside the truck. On the basis of the recovery of
the commercial quantity of ganja and the alleged disclosures

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regarding its procurement, transportation and delivery, the driver
Pawan Kumar and co-driver Abdul Tauffique (appellant) were
arrested. Chhotu Singh, Umesh Kumar, Laddu Singh @
Digambar Nath Singh, the alleged owner of the truck Arun
Singh, the alleged owner of the vehicle bearing registration No.
UP67T-0595, Sonu Kumar Rai and other persons were also
implicated as accused in connection with the alleged illegal
possession, transportation, purchase and sale of alleged seized
ganja. The prosecution alleged that the accused persons were
members of a conspiracy for illegally procuring, transporting
and delivering ganja and that the contraband was being
transported from Odisha through Jharkhand to Bhojpur. The
seized contraband, vehicle, documents and other articles were
accordingly taken into police custody and the accused persons
were forwarded for taking necessary legal action under the
relevant provisions of the NDPS Act.
4. On the basis of self statement of the informant
Lal Sahab Tiwary, then police Assistant sub-inspector of
Kutumba police station, Aurangabad, Bihar, a case bearing
Kutumba P.S. Case No. 65 of 2020 dated 29.04.2020 was
registered under Sections 8/20(b)(ii)(C), 25 & 29 of the NDPS
Act against the appellant Abdul Tauffique and others, which set

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the criminal law in motion.
5. After completion of the investigation, the
appellant was charge-sheeted for the offences punishable under
Sections 8/20(b)(ii)(C), 25 & 29 of the NDPS Act vide
chargesheet No. 104 of 2020 dated 22.10.2020.
6. The appellant stood charged for the offences
under Sections 8/20(b)(ii)(C), 25, 20 & 29 of the NDPS Act.
The said charges were read over and explained in Hindi to the
appellant by the trial court, to which he pleaded not guilty and
claimed to be tried.
7. During the trial, the prosecution examined
altogether eight witnesses who are as under :-
Rank Name Nature of Evidence
PW-1 Md. Aslam Ansari Seizure list witness
PW-2 Suresh Ram @ Suresh
Paswan
Seizure list witness
PW-3 Lal Saheb Tiwary Informant and a police officer
PW-4 Chandrabhanu Kumar
Singh
Police official
PW-5 Pankaj Kumar Police official
nd
PW-6 Kamlesh Ram 2 investigating officer
st
PW-7 Kamlesh Paswan 1 investigating officer/SHO
PW-8 Balwant Singh Formal witness
8. In addition to the above mentioned ocular
evidence, the prosecution proved and exhibited the following
documents in documentary evidence :-

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Exhibit
No.
Sr.
No
Description Proved
by/Attested by
1. Ext.-1 The seizure list dated 29.04.2020 PW-3
2. Ext.-1/1 Signature of independent witness on the
PW-3
seizure list
3. Ext. -2 &
2/1
Signature of independent witness on the
arrest memo
PW-3
4. Ext. - 3
& 3/A
Signature of witness (PW-3) on the notice
under Section 50A of NDPS
PW-3
5. Ext. -1/2,
1/3, 1/4
& 1/5
Handwriting of Gangesh Kumar and
signature of witnesses on the seizure list
and signature of accused persons namely
Pawan Kumar and Abdul Tauffique on the
seizure list
6. Ext. -2/3
& 2/4
Signature on the arrest memo PW-3
7. Ext. 4,
4/1 &
4/2
Writing and signature of witness/informant
and I.O./SHO at the endorsement on FIR
PW-3
8. Ext.-5 Signature of I.O./SHO on the formal FIR of
Kutumba P.S. Case No. 65 of 2020
PW-3
9. Ext. -2/5 Signature of witness on the arrest memo PW-3
10. Ext. -1/6 Signature of accused Laddu Singh @
PW-3
Digamabar Singh on the seizure list
11. Ext.-6 FSL report No. 1333/2020 dated
17.04.2021
12. Ext.-7 Chargesheet No. 104 of 2020 PW-7
13. Ext.-8 Signature of the learned Judicial Officer on
the forwarding letter to the Director,
Forensic Science Laboratory, Patna.
PW-7
14. Ext.-8/1 Signature of the learned Judicial Officer on
PW-7
the forwarding letter to the Director,
Forensic Science Laboratory, Chandigarh.
15. Ext.-9 Order of Malkhana-In-Charge on which
seven bags of cannabis were given for
presentation in the court.
PW-8
9. The prosecution also produced material objects
and got them exhibited in evidence which are as follows :
Sr.
No
Exhibit No. Description
1. Material Exhibit-(i) Gunny bag containing cannabis of 52.200 kg.
2. Material Exhibit-(ii) Gunny bag containing cannabis of 52.800 kg.

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3. Material Exhibit-(iii) Gunny bag containing cannabis of 51.770 kg.
4. Material Exhibit-(iv) Gunny bag containing cannabis of 53.680 kg.
5. Material Exhibit-(v) Gunny bag containing cannabis of 49.100 kg.
6. Material Exhibit-(vi) Gunny bag containing cannabis of 49.200 kg.
7. Material Exhibit-(vii) Gunny bag containing cannabis of 51.900 kg.
10. After the completion of the prosecution
evidence, the statement of the appellant was recorded under
Section 313 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’) by the trial court. The appellant denied the material
circumstances appearing against him from the prosecution
evidence and pleaded innocence.
11 . The appellant did not adduce any oral or
documentary evidence in his defence.
12. While convicting the appellant for the charged
offences under Sections 20(b)(ii)(C), 25 & 29 of the NDPS Act,
the learned trial court mainly placed reliance upon the
testimonies of prosecution witnesses PW-3, PW-4, PW-5, PW-6
& PW-7 as well as exhibits.
Submissions on behalf of the appellant :
13. Learned counsel appearing on behalf of the
appellant has submitted that the instant case suffers from serious
procedural irregularities and material infirmities, resulting in a
complete violation of the provisions of Sections 42, 50 and 52A
of the NDPS Act. It was contended that the two material seizure

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witnesses, namely, Md. Aslam Ansari (PW-1) and Suresh Ram
@ Suresh Paswan (PW-2), did not support the prosecution's case
and were accordingly declared hostile. It was further submitted
that, according to the prosecution, a large number of packets
containing a substance suspected to be ganja were allegedly
recovered from the alleged vehicle and weighed using a
weighing scale. However, the prosecution evidence is
conspicuously silent as to the place where the seized packets
were weighed, the nature and type of the weighing scale used
and the source from which it was procured. Such omissions,
according to learned counsel, cast serious doubt upon the
prosecution's version of the alleged recovery. It was also pointed
out that certain police personnel, who were allegedly members
of the police party involved in intercepting the alleged vehicle,
conducting the search and recovering the contraband, were not
examined by the prosecution and no explanation was offered for
their non-examination.
13.1. Learned counsel further submitted that as per
the testimony of the informant (PW-3), the written application
forming the basis of the FIR was prepared by a constable named
Gangesh Kumar. However, the said constable was neither
produced nor examined as a witness and the written FIR does

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not bear his signature. It was also contended that the prosecution
failed to examine one Satish Kumar Singh, the then Circle
Inspector of Nabinagar, whose non-examination materially
prejudiced the appellant's defence.
13.2. With regard to the sampling procedure,
learned counsel submits that there are serious lapses in
compliance with Section 52A of the NDPS Act. It was argued
that the prosecution failed to establish that the samples were
drawn in the presence of a Judicial Officer or Magistrate in
accordance with the applicable statutory procedure.
Furthermore, the testimony of the Investigating Officer and
other police officials raises serious doubts regarding the proper
custody and preservation of the samples. The considerable and
unexplained delay between the seizure of the contraband and the
drawing of samples, and their dispatch to the Forensic Science
Laboratory (FSL) further undermines the reliability of the
prosecution's case. Learned counsel has also drawn attention to
material contradictions in the testimonies of the prosecution
witnesses concerning the presence of certain police personnel at
the alleged place of recovery.
13.3. It is further contended that although the FIR
has been registered against the appellant and the main driver,

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namely, Pawan Kumar, and other persons, but the prosecution's
own narrative indicates that the appellant was present in the
alleged vehicle merely in the capacity of a co-driver.
Significantly, neither incriminating article nor any material
suggesting the appellant's involvement in, or connection with,
the alleged trafficking of the contraband was recovered during
his personal search. Learned counsel argued that following the
death of the driver during the course of the investigation, the
police proceeded to charge-sheet the appellant, thereby shifting
the principal responsibility for the alleged offence on him.
According to learned counsel, the appellant was merely
discharging his duties as a co-driver in the alleged vehicle and
had no knowledge of the alleged contraband being transported
therein. In these circumstances, the essential ingredients of the
offence under Section 25 of the NDPS Act, for which the
appellant stands convicted, have not established against him.
13.4. Lastly, learned counsel submits that the
appellant has already undergone more than six years of
imprisonment out of the sentence of ten years of rigorous
imprisonment imposed upon him. It is emphasized that the
appellant and his family have suffered considerably during this
period and that the appellant has no criminal antecedent. On

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these grounds, learned counsel has urged that the prosecution
has failed to establish the appellant's guilt beyond reasonable
doubt so the impugned conviction and sentence are liable to be
set aside.
Submissions on behalf of the State :
14. Per contra, learned Additional Public Prosecutor
(APP) appearing on behalf of the State has submitted that the
instant case pertains to the recovery of a huge quantity of ganja
from a truck in which the appellant was found travelling as a co-
driver. It is contended that the prosecution witnesses have duly
established the appellant's presence in the said vehicle and that
sufficient evidence is available on record to prove the recovery
of the contraband therefrom. According to learned APP, the
appellant's presence in the alleged vehicle, coupled with the
recovery of a huge quantity of narcotic substance from the
same, is sufficient to raise the presumption that he had
knowledge of the contraband loaded therein. It was further
argued that the appellant and the co-accused, Pawan Kumar, the
principal driver, had knowingly used the alleged vehicle and
permitted it to be used for the transportation of the contraband.
Accordingly, the ingredients of the offence punishable under
Section 25 of the NDPS Act stand established against the

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appellant, and the learned trial court has rightly convicted him
for the said offence.
14.1. With regard to compliance with Section 42 of
the NDPS Act, learned APP has submitted that the evidence
available reveals that the information allegedly received by the
informant regarding the transportation of the contraband by the
alleged vehicle was reduced into writing in the form of a sanha
and communicated to the superior police officers. Only
thereafter a police team comprising several personnel was
deputed to proceed to the alleged place where the vehicle was
subsequently intercepted. It was, therefore, contended that the
necessary statutory requirements had been duly complied with
by the police authorities.
14.2. Learned APP further submitted that, upon
apprehending the appellant and the co-accused, the arrest
memos were prepared at the spot, and seizure memos were
drawn up in respect of the articles allegedly recovered,
including those stated to have been recovered during the
personal searches of the apprehended accused persons. It has
been argued that the said documents, exhibited during the trial,
bear the signatures of the independent seizure witnesses,
namely, Md. Aslam Ansari (PW-1) and Suresh Ram @ Suresh

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Paswan (PW-2), as well as of the appellant and the informant.
According to learned APP, these documents lend support to the
prosecution's version regarding the apprehension of the accused
persons and the seizure of the contraband on the alleged day and
time and at the alleged place.
14.3. As regards the sampling procedure and the
preservation of the seized contraband, learned APP contended
that the samples were drawn after obtaining the requisite
permission from the competent court and were thereafter
dispatched to the Forensic Science Laboratories at Patna and
Chandigarh for chemical examination. To establish the proper
custody of the samples during the intervening period between
their drawing and dispatch to the respective laboratories, the
prosecution produced the Malkhana register before the learned
trial court, and the relevant entries therein were duly exhibited
as documentary evidence. It was submitted that the learned trial
court had properly appreciated these materials while evaluating
the prosecution's case. Learned APP has further pointed out that
the FSL report has confirmed the seized substance to be ganja.
The sacks containing the packets of the alleged contraband were
also produced before the learned trial court and marked as
material exhibits, thereby lending further support to the

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prosecution's case regarding the identity of the seized substance.
14.4. With respect to the alleged non-compliance
with Section 50 of the NDPS Act, learned APP submitted that
the concerned police officials had served notices under the said
provision upon the apprehended accused persons, including the
appellant, and the prosecution had duly proved the same during
trial. However, it is contended that the provisions of Section 50
of the NDPS Act are not attracted in the present case, as the
prosecution's case is not founded upon the recovery of
contraband from the appellant's person rather upon its alleged
recovery from the vehicle in which he was travelling. Hence, the
appellant can not claim any benefit on the ground of alleged
non-compliance with Section 50 of the NDPS Act.
14.5. Lastly, learned APP submitted that the learned
trial court had carefully considered and properly appreciated the
oral and documentary evidence adduced by the prosecution and
had rightly convicted the appellant for the offence charged. It is,
therefore, contended that the impugned judgment of conviction
does not warrant any interference and that the present appeal,
being devoid of merit, is liable to be dismissed.
Consideration and Analysis :
15. I have heard the submissions advanced on

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behalf of both parties and perused the impugned judgment, the
evidence adduced by the parties and the statement of the
appellant recorded under Section 313 of the Code of Criminal
Procedure (hereinafter referred to as the ‘Cr.P.C.’).
16. The instant case relates to the alleged recovery
of a large quantity of ganja from a truck, as asserted by the
prosecution. With regard to compliance with Sections 42 and 50
of the Narcotic Drugs and Psychotropic Substances Act
(hereinafter referred to as the ‘NDPS Act’), this Court finds that
the said provisions are not attracted to the facts and
circumstances of the present case. The prosecution's case is not
that the alleged contraband was recovered from the person of
the appellant or from any enclosed premises. Rather, according
to the prosecution, on the alleged date and time of occurrence, a
truck bearing registration No. JH10W-9287, which was in
transit, was intercepted and upon its search, alleged contraband
suspected to be ganja was recovered from fourteen plastic sacks
concealed in a specially constructed secret compartment in the
truck.
17. In such circumstances, Section 42 of the NDPS
Act is not applicable and the provisions of Section 43 of the
NDPS Act govern the search and seizure in question.

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Consequently, there was no requirement for the concerned
police officer to reduce the alleged secret information into
writing or communicate the same to his superior officers in the
manner contemplated under Section 42 of the NDPS Act nor
was it necessary for the concerned Station House Officer
(SHO), who had instructed the informant, to proceed to Sanda
Check Post for the purpose of intercepting the alleged truck.
Accordingly, this Court finds no merit in the submission
advanced by learned counsel for the appellant regarding the
non-compliance with Sections 42 and 50 of the NDPS Act. The
appellant, therefore, cannot claim his entitlement to acquittal
merely on the basis of the alleged violation of the said
provisions.
18. However, with regard to compliance with
Section 52A of the NDPS Act, a perusal of the evidence
adduced by the prosecution reveals that the mandatory
procedure prescribed under the said provision was not complied
with in the present case.
19. According to the prosecution, on 28.04.2020, at
approximately 23:00 hours, the informant, who was a Sub-
Inspector of Police, along with other members of the police
team, proceeded to Sanda Check Post. Thereafter, a truck

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approaching from the direction of the State of Jharkhand was
intercepted and the alleged contraband was recovered from a
secret compartment constructed inside the said truck.
20. It is further alleged that the appellant and one
Pawan Kumar, who were travelling in the truck as co-driver and
driver, respectively, were apprehended at the spot. During the
search, their driving licences, voter identity card of the
appellant, Aadhar card of driver Pawan Kumar, ATM cards,
mobile phones, certain amount of cash, two vehicular registration
certificates and other vehicle-related documents were allegedly
recovered from their person and the cabin of the truck. The
aforesaid articles along with the other seized materials were
recorded in the same seizure memo, marked as Exhibit-1.
21. A perusal of the order sheets contained in the
trial court records reveals that following the seizure of the truck,
the apprehended accused persons including the appellant were
produced before the trial court on 30.04.2020 along with the
arrest memos, the search-cum-seizure list, photocopy of the
medical examination’s prescription and a forwarding letter.
However, the examination of the order sheets dated 30.04.2020
and 01.05.2020 does not indicate that the seized contraband was
produced before the trial court on 30.04.2020.

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22. On 01.05.2020, the SHO of Kutumba Police
Station submitted an application before the trial court seeking
permission to draw representative samples of the seized
contraband in two sets, for the purpose of sending the samples
to the Forensic Science Laboratory (FSL), Patna and the FSL at
Kolkata/Chandigarh. The said application was allowed by the
trial court on the same day.
23. It is pertinent to note that, while allowing the
application for drawing representative samples on 01.05.2020,
the learned trial court directed its office to proceed with the
sampling procedure. The relevant order sheet is reproduced
hereinbelow:
“ Fkkuk/;{k dqVqEok dh vksj ls ,d
vkosnu bl vk”k; dk fn;k x;k fd tCr xkatk 14 cksjk
730
esa dqy 349 kg gm ls ¼14 x 15½¾ 210 gm fof/k
foKku iz;ksx”kkyk fcgkj iVuk o jklk;fud iz;ksx”kkyk
dLVe gkml dydÙkk ¼if”pe cxkay½@¼p.Mhx<½ dks
tk¡p gsrq fudkydj Hkstus gsrq fn;k x;kA
ns[kk] vkosnu dks Lohdkj fd;k x;k rFkk
dk;kZy; dks funsZ”k fn;k tkrk fd vius le{k mä iznZ”k
xkatk dks lSaiy djkdj uequs dks fof/k foKku iz;ksx”kkyk
fcgkj iVuk c jlk;fud iz;ksx”kkyk dLVe gkml
dydÙkk ¼if”pe cxkay½ dks Hkstus gsrq mä I.O. dks

Patna High Court CR. APP (SJ) No.3367 of 2024 dt.26-10-2026
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rFkk “ks’k cps xkatk oLrq iznZ”k dqy 14 Ckksjk dks 7 Ckksjk
esa fly can dj iqu% vuqla/kkudÙkkZ dks okil izkIr
”
djk;saA
24. Further, a perusal of the aforesaid order sheet
does not indicate that the seized contraband, allegedly contained
in fourteen plastic sacks, was produced before the trial court in a
sealed condition. Although, after the drawing of samples, the
contraband originally contained in fourteen sacks was
consolidated into seven sacks, which were thereafter sealed and
handed over to the Investigating Officer, however there is
nothing on record to indicate the nature of the seal used or the
specimen impression thereof. It further appears that owing to the
prevailing lockdown restrictions, the two sets of samples drawn
earlier could not be dispatched to the Custom House Laboratory,
Chandigarh and the Forensic Science Laboratory (FSL), Patna,
for chemical examination. Subsequently, on 28.08.2020, the
Investigating Officer, Kamlesh Paswan (PW-7), submitted two
separate applications seeking permission to send the seized
contraband, namely ganja, for examination at FSL, Patna and
the laboratory at Chandigarh. However, the prosecution has
failed to disclose whether the samples drawn on 01.05.2020
were utilised for the subsequent dispatch or whether any fresh
sampling procedure was undertaken. Furthermore, no

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convincing evidence has been adduced by the prosecution to
establish the safe and intact custody of the samples allegedly
drawn on 01.05.2020 during the intervening period up to
28.08.2020. No documentary evidence has been produced to
establish the manner in which the samples were preserved or to
demonstrate that their integrity remained intact throughout the
said period. In this regard, it is relevant to refer to the FSL
report, marked as Exhibit-6, which indicates that one parcel
containing the samples was received at FSL, Patna, on
09.11.2020. However, according to the order sheet of the trial
court, permission to dispatch the samples was granted on
28.08.2020. Thus, there was a delay of approximately two
months and twelve days between the grant of permission by the
trial court and the receipt of the samples at FSL, Patna. The
prosecution has offered no satisfactory explanation for this
inordinate delay. The prosecution also failed to examine one
Ramashish Ram, the Chowkidar, who was stated to have carried
the samples to FSL, Patna and deposited them there. His
examination would have been material to establish the
circumstances in which the samples were transported and the
continuity of their custody during the relevant period. In the
absence of his testimony or any other reliable evidence

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explaining the delay, the possibility of a break in the chain of
custody cannot be ruled out. These circumstances give rise to
serious doubts regarding the safe custody and integrity of the
samples from the time they were drawn from the seized
contraband until their deposit at FSL, Patna.
25. Furthermore, although samples were also stated
to have been sent to the laboratory at Chandigarh, but the
prosecution has failed to produce the corresponding FSL report
or furnish any explanation for its non-production. This omission
further weakens the prosecution's case concerning the sampling
and chemical examination of the alleged contraband.
26. It is also evident from the materials available on
record that the samples were not drawn in the presence of a
Magistrate. No steps appear to have been taken by the trial court
to ensure that the sampling procedure was conducted in the
presence of a Magistrate in accordance with the procedure
contemplated under Section 52A of the NDPS Act. Moreover,
no inventory of the seized narcotic substance, as envisaged
under the said provision, appears to have been prepared. The
record, therefore, reflects a serious failure on the part of the
Investigating Officer to ensure compliance with the statutory
procedure, as well as a failure on the part of the trial court to

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ensure that the requisite safeguards were observed.
27. It is further pertinent to note that apart from the
alleged narcotic substance, several other articles including ATM
cards, driving licences, cash, mobile phones and vehicle-related
documents, including registration certificates alleged to be
forged, were stated to have been seized under the same seizure
memo. Nevertheless, the said articles were not produced before
the trial court and the prosecution has furnished no satisfactory
explanation for their non-production. This omission assumes
significance in view of the fact that the seizure of all the
aforesaid articles was allegedly recorded in the same seizure
memo.
28. A perusal of the written application forming the
basis of the FIR reveals that the seized contraband was allegedly
weighed at the place of recovery. However, the said document
does not indicate that the contraband was sealed at the place of
seizure. The informant, who was examined as PW-3, did not
depose during his examination-in-chief regarding the sealing
procedure, either at the place of recovery or at the police station,
and remained silent on this material aspect. However, in
paragraph 32 of his cross-examination, PW-3 stated that the
contraband contained in 343 packets was mixed together,

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samples were drawn therefrom and the samples were thereafter
placed in a wooden box, which was sealed in the court. This
statement assumes considerable significance, as it indicates that
the contraband, which had allegedly been seized and brought
before the trial court in several packets, was not in a sealed
condition at the time of its production. In this regard, the order
sheet of the trial court dated 30.04.2020/01.05.2020 is also
relevant and lends further support to the doubts arising from the
manner in which the seized contraband was handled and
produced before the court.
29. It is a settled principle that in cases involving
the seizure of narcotic substances, the seized contraband must
ordinarily be packed and sealed immediately at the place of
recovery. Where the quantity of seized contraband is substantial
or the circumstances make it impracticable to complete the
procedure at the spot, the contraband may be packed and sealed
at the nearest police station or at an appropriate official premises
of the raiding party, provided that the circumstances
necessitating such a course are satisfactorily explained. The
sealing procedure must be conducted in a manner that preserves
the identity and integrity of the seized substance and safeguards
it against any possibility of tampering. For this purpose, the

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signatures of the apprehended accused persons and independent
witnesses, wherever available, may be affixed across the seals in
such a manner that any subsequent opening of the sealed
packages would ordinarily disturb or break the signatures. The
specimen impression of the seal used for sealing the seized
contraband must also be properly preserved and incorporated
into the relevant forwarding documents so that the identity and
integrity of the seal may subsequently be verified. Where the
specimen impression of the seal is forwarded to the forensic
laboratory along with the samples, the forwarding documents
and the FSL report may assist in establishing whether the seals
on the received parcels correspond to the specimen impression.
The testimony of the seizing officer may also be material in this
regard, as the officer is expected to explain the manner in which
the contraband was weighed, packed and sealed, the nature of
the seal used and the persons who witnessed the sealing
procedure. The seizure memo, containing the specimen
impression of the seal, may likewise constitute relevant
evidence for establishing the identity of the seal used on the
seized contraband. In the present case, however, the seizure
memo does not contain any specimen impression of the seal.
The materials on record further indicate that the seized

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contraband was not sealed at the time of its alleged recovery and
preparation of the seizure memo. It was produced before the
trial court in an unsealed condition. Furthermore, the forwarding
letter accompanying the FSL report of Patna FSL, does not
indicate that the seal affixed to the parcel containing the samples
was compared with, or found to correspond to, the specimen
impression of the seal. Considered cumulatively, these
circumstances give rise to serious doubts regarding the identity,
integrity and safe custody of the samples said to have been
drawn from the seized contraband. The prosecution has failed to
establish an unbroken and reliable chain of custody from the
time the samples were drawn until their deposit at FSL, Patna.
In the absence of satisfactory evidence establishing the
continuity of custody and ruling out the possibility of tampering,
the possibility that the samples examined by the FSL were
interfered with or otherwise compromised cannot be excluded.
Consequently, the evidentiary value of the FSL report is
seriously undermined and the prosecution has failed to dispel
the reasonable doubt arising from the deficiencies in the
sampling, sealing, preservation and transmission of the alleged
narcotic substance.
30. It further appears from the FIR and the

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testimony of the informant that the seizure memo was prepared
prior to the registration of the FIR. However, the seizure memo,
marked as Exhibit-1, contains the FIR number, as Kutumba P.S.
Case No. 65 of 2020. Had the seizure memo actually been
prepared before the registration of the FIR, the inclusion of the
said case number therein would require an explanation from the
prosecution. In the absence of any such explanation, the
presence of the FIR number in the seizure memo gives rise to an
inference that the document might have been prepared or
subsequently completed after the registration of the FIR. This
circumstance casts a serious doubt upon the genuineness and
reliability of the seizure memo (Exhibit-1) and further weakens
the prosecution's case.
31. When the aforesaid circumstances are
considered cumulatively, the evidence adduced by the
prosecution fails to inspire the confidence of this Court
regarding the alleged recovery of the alleged contraband from
the alleged truck said to have been in the possession of the
appellant and the co-accused. The serious deficiencies in the
seizure, sampling, sealing, preservation and transmission of the
alleged narcotic substance, coupled with the complete non-
compliance with the requirements of Section 52A of the NDPS

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Act in the present case, warrant an adverse inference against the
prosecution. In these circumstances, the prosecution cannot
claim the benefit of the statutory presumption under Section 54
of the NDPS Act. The learned trial court, therefore, adopted an
erroneous approach in invoking the statutory presumption
concerning the commission of the alleged offences and the
culpable mental state of the appellant without first adequately
addressing the fundamental deficiencies in the prosecution
evidence and the reliability of the alleged recovery.
32. It is true that mere non-compliance with the
procedure prescribed under Section 52A of the NDPS Act or the
Standing Orders or Rules framed thereunder does not, by itself,
necessarily render the prosecution case fatal. However, the
circumstances of the present case are materially different. Here,
the prosecution has failed to demonstrate compliance with the
essential safeguards contemplated under Section 52A of the
NDPS Act, as neither representative samples were drawn in the
presence of a Magistrate nor an inventory of the seized
contraband was prepared and certified in accordance with the
prescribed procedure. These deficiencies, when considered
alongside the other material discrepancies discussed
hereinabove, cast serious doubt upon the integrity and

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authenticity of the seizure and sampling process.
33. Consequently, the FSL report, upon which the
learned trial court substantially relied, cannot be considered in
isolation from the serious deficiencies surrounding the
collection, preservation and transmission of the samples. In the
factual circumstances of the present case, the evidentiary value
of the said report is materially undermined by the prosecution's
failure to establish that the samples examined by the laboratory
were drawn from the contraband allegedly seized from the truck
and remained intact throughout the period preceding their
examination. Accordingly, this Court is of the considered
opinion that the non-compliance with Section 52A of the NDPS
Act, when viewed in the context of the other circumstances and
discrepancies discussed above, goes to the root of the
prosecution's case and is fatal to its reliability in the present
matter. These material aspects were not properly appreciated by
the learned trial court, resulting in an erroneous assessment of
the prosecution evidence.
Conclusion :
34. For the reasons discussed hereinabove, this
Court finds that the prosecution has failed to establish
compliance with the requirements of Section 52A of the NDPS

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Act. The seized narcotic substance was neither sealed at the
place of occurrence nor at the police station or any other
identified place prior to its production before the trial court. It
was only the samples, allegedly drawn in the court, that were
subsequently sealed. However, the prosecution has failed to
establish the reliability of the sampling and sealing procedure
through cogent and convincing evidence, and several material
discrepancies in this regard have emerged from the evidence on
record, as discussed hereinabove. Furthermore, there was an
unexplained delay of more than two months between the date on
which the samples were allegedly drawn and the date on which
they were received at FSL, Patna. The prosecution has failed to
furnish any satisfactory explanation for this delay or to adduce
reliable evidence establishing the safe and uninterrupted custody
of the samples during the intervening period. In the absence of
such evidence, the prosecution cannot claim to have established
an unbroken chain of custody of the representative samples
allegedly drawn from the seized contraband. In view of the
cumulative effect of these material deficiencies, the
discrepancies surrounding the seizure memo, the failure to
establish the integrity of the sampling and sealing process and
the unexplained delay in the transmission of the samples to FSL,
Patna, this Court finds that the prosecution has failed to dispel

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the reasonable doubt arising in respect of the alleged recovery
and the identity and integrity of the samples examined by the
forensic laboratory. Consequently, this Court is not persuaded to
affirm the conviction of the appellant for the offences charged
against him. The findings and conclusions recorded by the
learned trial court, insofar as they relate to the conviction of the
appellant, cannot be upheld in view of the material deficiencies
and infirmities in the prosecution case discussed above.
Consequently, the judgment of conviction dated 30.05.2024 and
the consequential order of sentence dated 06.06.2024 passed by
the learned Special Judge (NDPS)-cum-Additional Sessions
Judge-I, Aurangabad, in connection with G.R. Case No. 03 of
2020 arising out of Kutumba P.S. Case No. 65 of 2020, are
hereby set aside.
35. In the result, the present appeal is allowed.
36. The appellant is in judicial custody, so, he is
directed to be released forthwith if his custody is not required in
any other case.

(Shailendra Singh, J)
annu/-
AFR/NAFR
AFR
CAV DATE
NA
Uploading Date
03.11.2026
Transmission Date
03.11.2026