Patna High Court
Shankar Das vs The State Of Bihar on 2 December, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.445 of 2023
Arising Out of PS. Case No.-12 Year-2019 Thana- GOVERNMENT OFFICIAL COMP.
District- Muzaffarpur
======================================================
Shankar Das, S/o Putul Das, R/o Village-School Tila Gardhigram, P.S.-
Airport, District-West Tripura, State Tripura.
... ... Appellant
Versus
1. The State of Bihar
2. Union of India through Narcotic Control Bureau, Patna Zonal Unit.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 447 of 2023
Arising Out of PS. Case No.-12 Year-2019 Thana- GOVERNMENT OFFICIAL COMP.
District- Muzaffarpur
======================================================
1. Sandeep Kumar, Son of Mohan Lal, R/o H. No. DVIMV / 647, Ward No. 09,
Bernala, P.S.- Airport, Distt.- Barnala, State - Punjab.
2. Kuldeep Singh, Son of Magghar Singh, R/o Ward no. 08, Bernala, P.S.-
Airport, Distt.- Bernala, State- Punjab.
... ... Appellants
Versus
1. The State of Bihar
2. Union of India through Narcotic Control Bureau, Patna Zonal Unit.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 739 of 2023
Arising Out of PS. Case No.-12 Year-2019 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- Muzaffarpur
======================================================
Manoj Sah, Son of Musaharu Sah, Resident of Village - Banania, Kamaldaha,
Police Station - Kisanpur, District - Supaul, Bihar.
... ... Appellant
Versus
1. The State of Bihar
2. Union of India Through Narcotic Control Bureau, Patna Zonal Unit, Patna.
... ... Respondents
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 445 of 2023)
For the Appellant : Mr. Ajay Kr. Thakur, Advocate
Mr. Dhirendra Kumar Sinha, Advocate
For the UOI : Mr. Ram Anurag Singh, CGC
For the State : Mr. Parmeshwar Mehta, Addl.PP
(In CRIMINAL APPEAL (DB) No. 447 of 2023)
Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025
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For the Appellants :
Mr. Ajay Kr. Thakur, Advocate
Mr. Ganesh Pd. Singh, Advocate
Mr. Umesh Kr. Roy, Advocate
Mr. Satrudhan Kumar, Advocate
For the UOI : Dr. K.N. Singh, ASG
Mr. Ram Tujabh Singh, CGC
Mr. Radhika Raman, Advocate
For the State : Mr. Parmeshwar Mehta, Addl.PP
(In CRIMINAL APPEAL (DB) No. 739 of 2023)
For the Appellant : Mr. Ajay Kr. Thakur, Advocate
Mr. Jay Prakash Sharma, Advocate
Mr. Umesh Kr. Roy, Advocate
For the UOI : Mr. Ram Anurag Singh, CGC
For the State : Mr. Parmeshwar Mehta, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 02-12-2025
This appeal is arising out of the judgment of conviction
dated 22.02.2023 (hereinafter referred to as the 'impugned
judgment') and the order of sentence dated 24.02.2023 (hereinafter
referred to as the 'impugned order') passed by learned Additional
Sessions Judge-III, Muzaffarpur (hereinafter referred to as the
'learned Trial Court') in NDPS Case No. 18 of 2019 arising out of
NCB Case No. 12 of 2019.
2. By the impugned judgment, the learned trial court has
been pleased to convict the appellants for the offences punishable
under Sections 20(b)(ii)(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act (in short 'NDPS Act') and ordered to
undergo rigorous imprisonment for twenty years and to pay a fine
of Rs.2,00,000/- each under Section 20(b)(ii)(c) of the NDPS Act.
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For the offence under Section 29 NDPS Act, they have further
been ordered to undergo rigorous imprisonment for twenty years
and to pay a fine of Rs. 2,00,000/- each. In case of default of
payment of fine, they have to further undergo additional two and
half years rigorous imprisonment. Both the sentences are to run
concurrently.
Prosecution Case
3. The prosecution case as alleged is that on 08.05.2019
at about 09:00 AM, the informant, namely, Amar Shankar (PW-4)
got a secret information that one oil tanker with Registration No.
AS-17B-7231 is coming from Tripura via Guwahati, Siliguri and
Purnea to Muzaffarpur carrying ganja in bulk quantity which is
expected to arrive Purnea at about 18:00 O'clock. On receiving
this information, a seven-member team of NCB was constituted.
On 08.05.2019 at about 11:00 Hours, they left Patna with seizing
kit and reached Gulab Bagh Chauraha, Purnea at about 17:30
Hours. At about 18:30 Hours, one white colour oil tanker with
Registration No. AS-17B-7231 came from Dalkhola and was
heading towards the road to Darbhanga. At about 22:30 Hours, the
tanker reached Simrahi Bazar, Supaul, one person boarded the
tanker there and the tanker moved further. The team also followed
them to arrest other persons also who were involved in smuggling.
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On 09.05.2019 at about 06:00 AM, they reached Yadav Chauk,
Muzaffarpur where two persons, namely, Ramlal Sah and
Nageshwar Paswan were made independent witnesses. One more
person reached the tanker and when he was boarding the same, the
team stopped them and the persons on the tanker disclosed their
names as Sandeep Kumar, Kuldeep Singh, Manoj Sah and Shankar
Das. They all accepted that there is ganja in the tanker. On the
same day at about 07:00 AM, the team along with the independent
witnesses, oil tanker and the four persons reached Abkari Thana,
Chhatachauk, Muzaffarpur where following the procedures of
Section 50 of the NDPS Act, the four accused persons were
searched in presence of the independent witnesses from whose
possession, nothing incriminating material could be found. From
the tanker, 55 packets each weighing 10 kgs total weight 550 kgs
of ganja was recovered, some portion of which was sent for
examination.
4. At the police station, three copies of test memo and
search-cum-seizure list were prepared on which they put their
signature and thumb impression.
5. On the basis of the copy of notice under Section 50 of
the NDPS Act, Seizure list, Test memo, Carbon copy of notice
under Section 67 of the NDPS act, statements of accused persons,
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arrest memo, Jama Talasi of accused, statement of independent
witnesses under Section 67 of the NDPS, Medical report of the
accused persons, documents of oil tanker, sample of seized
narcotics in four sealed envelopes, Narcotics Control Bureau
registered NCB Case No. 12 of 2019 under Sections 8, 20(b)(ii)
(c), 25, 27 and 29 of the NDPS Act against accused persons,
namely, (1) Manoj Sah, (2) Shankar Das, (3) Sandeep Kumar, (4)
Kuldeep Singh. After that complaint petition was submitted before
learned trial court with a prayer to take cognizance against above-
named accused persons showing investigation continuing against
Sukhwinder Singh (absconding) and Biswajeet Das (absconding).
On the basis of the complaint petition and other materials available
on the record, learned trial court vide order dated 13.11.2019 took
cognizance of the offences punishable under sections 20(b)(ii)(c),
25, 27 and 29 of the NDPS Act against four accused persons
namely (1) Manoj Sah, (2) Shankar Das, (3) Sandeep Kumar and
(4) Kuldeep Singh and directed the office to open supplementary
record against the absconding accused, namely, Sukhwinder Singh
and Biswajeet Das.
6. Charges were read over and explained to the accused
persons in Hindi to which they pleaded not guilty and claimed to
be tried. Accordingly, vide order dated 19.01.2021, charges were
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framed against the appellants under Sections 20(b)(ii)(c), 25 and
29 of the NDPS Act.
7. In course of trial, the prosecution examined as many
as six witnesses and exhibited several documents to prove it's
case. The list of the prosecution witnesses and the list of exhibits
are being shown hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Paramhans Kumar
PW-2 Anil Kumar Prasad
PW-3 Ravi Ranjan Kumar
PW-4 Amar Shankar
PW-5 Dhiraj Kumar
PW-6 Rajan Kumar
List of Documents exhibited
Exhibit-1 The statement of Kuldeep Singh
Exhibit-2 Signature of the witnesses on the seizure list
Exhibit-3 The statement of Sandeep Kumar
Exhibit-4 Statement of independent witness Ram Lal Sah
Exhibit-2/1 Signature of witness Ravi Ranjan Kumar on the
last page of search-cum-seizure list
Exhibit-5 Statement of Shankar Das
Exhibits-6, 6/1, 6/2, 6/3 Search notice
Exhibit-2/2 Search-cum-Seizure memo
Exhibit-7 Test Memo
Exhibits-8, 8/1, 8/2, 8/3 Notice under Section 67
Exhibit-9 Statement of accused Manoj Sah
Exhibits-10, 10/1, 10/2, Arrest Memo
10/3
Exhibits-11, 11/1, 11/2, Search and Seizure
11/3
Exhibit-12 Interrogation of Shankar Das
Exhibit-13 The correspondence under Section 65B of the
IT Act
Exhibit-14 True copy of report of Churawari P.S. Case No.
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48 of 2018 under NDPS Act against Shankar
Das
Exhibit-15 Certification
Exhibit-15A Inventory
Exhibit-15B Photograph of seized ganja
Exhibit-16 Certificate of seized vehicle
Exhibit-17 Report dated 11.05.2019 submitted by Amar
Shankar, Seizing Officer
Exhibit-18 Receipt dated 10.05.2019 of Malkhana
Exhibit-19 Test Memo report in which presence of ganja
has been proved
Exhibit-20 Complaint letter along with enclosures
Exhibit-21 Writing and signature of page no. 128 entry no.
126 of the malkhana register
Material Exhibit 'i' Sealed envelope BS-2
Material Exhibit 'ii' Sealed envelope AS-2
Material Exhibit 'iii' Sealed envelope of NCB-12 of 2019
8. Thereafter, the statements of the appellants were
recorded under Section 313 of the CrPC. They took a plea that
they were innocent. No oral or documentary evidence has been
adduced on behalf of the Defence.
Findings of the learned trial court
9. Learned trial court after analysing the evidences
available on the record found that the prosecution has succeeded in
proving the allegation of possessing and transporting ganja in oil
tanker in violation of the NDPS Act and the quantity of the ganja
was found to be commercial.
10. Learned trial court found that the prosecution has
followed the established procedure for making search, seizure and
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sampling. Learned trial court found that the prosecution has
proved the place, date and time of the occurrence.
11. Learned trial court found that on the basis of the
cogent, convincing and reliable evidences brought on the record,
prosecution has been able to prove the guilt against the appellants.
Hence, learned trial court convicted the appellants for the offences
punishable under Section 20(b)(ii) (c) and 29 of the NDPS Act.
Submissions on behalf of the appellants
12. Learned counsel for the appellants has submitted that
the impugned judgment and order of the learned trial court suffers
from several illegalities and infirmities. It is submitted that in this
case, the two independent seizure list witnesses namely Ramlal
Shah and Nageshwar Paswan have not been examined. There is no
compliance with the requirement of Section 42(1) of the NDPS
Act. It is submitted that though the seizing officer/informant has
stated that he had recorded the information received on 08.05.2019
at about 9:00 Hrs. that an oil tanker bearing registration no.
AS17B7231 is carrying a huge quantity of ganja from Agartala,
Tripura will come to Muzaffarpur via Guwahati-Siliguri-Purnea
and the said oil tanker may cross Purnea in the evening on the
same day at about 18:00 Hrs. After recording the said information,
he had communicated the same to Sri T. N. Singh, Zonal Director,
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NCB, Patna who consented and constituted a team of NCB Patna,
the submission is that the said recording of information and proof
of communication of the same to the Zonal Director has not been
brought in evidence.
13. Learned counsel further submits that there was a
substantial delay in certification of the inventory. Shri Deepak
Kumar, the learned Judicial Magistrate First Class, who was
deputed to do the certification work, did it only on 29.10.2019.
Submission has also been made that the sampling of ganja was not
done in the presence of a Magistrate. Nothing is there on the
record to show as to when the samples were sent to the FSL. It is
also submitted that the seized materials were not produced before
the learned court. The destruction report of the narcotics was also
not brought on the record.
14. Learned counsel has relied upon the judgments of
the Hon'ble Supreme Court in the case of Karnail Singh and
Others Vs. State of Haryana reported in (2009) 8 SCC 539;
Darshan Singh vs. State of Haryana reported in (2016) 14 SCC
358; Mohd. Khalid and Anr. vs. State of Telangana reported in
(2024) 5 SCC 393; Yusuf @ Asif vs. State reported in (2024) 14
SCC 217; State of U.P. v. Hansraj reported in (2018) 18 SCC
355 and Mangilal vs. State of Madhya Pradesh reported in 2023
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INSC 634. It is submitted that the learned trial court has
committed grave error in appreciation of the evidences on the
record, hence, the impugned judgment and order are liable to be
set aside and the appellants may be acquitted giving them benefit
of doubt.
Submissions on behalf of the State
15. On the other hand, learned Additional Public
Prosecutor for the State submits that in this case, the prosecution
has been able to prove beyond all reasonable doubts that the entire
procedures relating to search, seizure and sampling of the narcotics
have been fully complied with. It is submitted that the information
received by the informant Amar Shankar (PW-4) had been
recorded and communicated to his senior officer whereafter a team
of NCB, Patna was constituted comprising Sri Amar Shankar
(Intelligence Officer and Seizing Officer), Sri Manoj Kumar
Yadav, Havaldar, Sri Rajnish Kumar, Sipahi, and Sri Sanjeev
Kumar, Driver from NCB Patna. The team of the NCB Patna
intercepted the oil tanker bearing registration no. AS17B7231 in
presence of the seizure list witnesses. Four persons were found
sitting in the vehicle. They were (1) Sandeep Kumar, (2) Kuldeep
Singh, (3) Manoj Shah and (4) Shankar Das. On their request and
to provide them safety, the oil tanker and those persons together
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with both independent witnesses were brought to the State Excise
Office at Chhata Chowk, Muzaffarpur on the same day where the
search of the oil tanker was conducted in which 55 nos. of
rectangular packets wrapped in brown colour adhesive tape were
recovered from one of the oil tanks of the said oil tanker.
16. It is submitted that on opening of the oil tank, 55
packets dried brown colour substance believed to be ganja was
found. The packets were weighed which were found to be 550 (55
x 10 kilograms). Thereafter, seized 55 packets were divided into
two lots marked as Lot-A and Lot-B containing 28 packets and 27
packets respectively.
17. Learned Additional Public Prosecutor submits that
the two samples of 25-25 grams each were drawn from each lot of
the seized substance and were sealed with departmental seal and
were marked as 'AS1', 'AS2', 'BS1' and 'BS2'. Signatures of seizing
officer, both the independent witnesses and four accused persons
were obtained on all sealed items.
18. Learned Additional Public Prosecutor submits that
the contention of learned counsel for the appellants that the
sampling was not done in presence of a Magistrate and that the
seized narcotics were not produced in court are not correct
submissions. It is a matter of record that the accused persons and
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the seized contraband with the samples were produced in court,
whereafter the learned court granted permission to keep the
remaining seized contraband, duplicate sample 'AS2' and 'BS2' in
NCB Malkhana, Patna and deposition of seized oil tanker at Kanti
Police Station, District Muzaffarpur. The court also granted
permission for sending the samples 'AS1' and 'BS1' to CRCL,
Kolkata for chemical examination. The prosecution has proved
godown entry serial number 126 dated 10.05.2019 to show that the
seized contraband samples marked 'AS2' and 'BS2' were deposited
with NCB Malkhana vide receipt (Exhibit '21').
19. Learned Additional Public Prosecutor further
submits that the samples marked as 'AS1' and 'BS1' along with two
copies of test memo were sent to CRCL, Kolkata through special
messenger for chemical examination. The chemical examination
report of CRCL, Kolkata dated 15.05.2019 has confirmed the
content of the samples as ganja and the copy of the report was sent
to the court of learned District and Sessions, Muzaffarpur.
20. Learned Additional Public Prosecutor further
submits that the plea of the learned counsel regarding non-
compliance with Section 42 of the NDPS Act would not inspire
confidence. It is submitted that in this case, the vehicle in question
is an oil tanker which is a public utility service vehicle and even as
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it is owned by a person, it cannot fall in the category of a private
vehicle. It is, thus, submitted that in fact Section 42 of the NDPS
Act has no application in this case as the vehicle in question would
fall in the category of a public service conveyance.
21. Referring to the judgment of the Hon'ble Supreme
Court in the case of Karnail Singh (supra), learned Additional
Public Prosecutor submits that in the said case, the Hon'ble
Constitution bench has, though, held at one stage that if there is
total non-compliance of provision, the same would adversely
effect the prosecution case and to that extent it is mandatory but
after taking note of the amendments brought in Section 42 with
effect from 02.10,2001, the Hon'ble Supreme Court has held that
the non-compliance of the said provision may not vitiate the trial if
it does not cause any prejudice to the accused. Referring to
paragraph '34' of the judgment in the case of Karnail Singh
(supra), learned Additional Public Prosecutor submits that the
Hon'ble Supreme Court has held that if the statutory provision
under Sections 41(2) and 42(2) of the Act of writing down the
information is interpreted as a mandatory provision, it will disable
the haste of an emergency situation and may turn out to be in vain
with regard to the criminal search and seizure. These provisions
should not be misused by the wrongdoers/offenders as a major
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ground for acquittal. It has been held that these provisions should
be taken as a discretionary measure which should check the misuse
of the Act rather than providing an escape to the hardened
peddlers.
22. It is submitted that so far as the judgment in the case
of Boota Singh and Ors. vs. State of Haryana reported in (2021)
19 SCC 606 is concerned, the Hon'ble Supreme Court has held in
the said case on the basis of the evidence that the vehicle was not a
public conveyance but was a vehicle belonging to accused
Gurdeep Singh. The registration certificate of the vehicle which
was placed on record also did not indicate it to be a public
transport vehicle. In that background, it was held that the
explanation to Section 43 shows that a private vehicle would not
come within the expression "public place" as explained in Section
43 of the NDPS Act. It was, thus, held that the relevant provision
would not be Section 42 of the NDPS Act but the case would come
under Section 43 of the NDPS Act. It is submitted that the facts of
this case are conversed. It is a case of oil tanker which is used for
transportation of oil and it is always registered as a
commercial/public utility service vehicle.
23. Learned Additional Public Prosecutor submits that
from the evidences available on the record, it may be easily found
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that the seizing officer submitted the carbon copy of notice under
Section 50 of the NDPS Act, seizure list, test memo, carbon copy
of notice under Section 67 NDPS Act, statements of accused
persons, arrest memo, jama talasi of accused persons, documents
of oil tanker, hand impression of accused persons and sample of
seized narcotics in four sealed envelopes of NCB Case No.
12/2019 instituted under Sections 8, 20, 25 and 29 of the NDPS
Act before the court of learned Sessions Judge-cum-Special Judge,
Muzaffarpur. It is pointed out that on the same day i.e. on
10.05.2019, the I.O. filed an application along with test memo for permission for storage of seized contraband at NCB Malkhana, Patna, seized vehicle at P.S. Kanti, Muzaffarpur and for sending the sample of seized narcotics to CRCL, Kolkata. The court granted the permission on 10.05.2019 itself.
24. Learned Additional Public Prosecutor further submits that on 24.05.2019, the I.O. filed a petition before the learned court for deputing a Judicial Magistrate for certification of seized goods which were lying in the Malkhana/godown, NCB, Patna. This application was filed keeping in view the hazardous nature and constraints of proper storage space in the malkhana/godown. On the request of the I.O., the learned Sessions Judge, Muzaffarpur deputed one Shri Deepak Kumar, Judicial Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 16/32 Magistrate, 1st Class, Muzaffarpur (East) to certify the seized goods in connection with NCB NDPS Case No. 12 of 2019. It is, thus, submitted that the seized ganja were kept in the Malkhana by order of the learned court and again the order was passed for certification of the ganja which were lying in the Malkhana. It is submitted that in such circumstance, this Court would find from the evidence of the informant (PW-4) and other witnesses that the sampling was done in presence of the accused persons and the test memo (Exhibit '7') has been brought on record in this regard.
25. Learned Additional Public Prosecutor submits that in this case, Exhibit '14' is verification report submitted by the ASI of Police, Airport Police Station, Narsingarh, West Tripura to Shri Dhiraj Kumar, Intelligence Officer, Office of the Narcotics Control Bureau, Rajiv Nagar, Patna from which it would appear that during the verification and inquiry, it has been established that Shankar Das is involved in ganja trafficking cases and one NBWA was pending against him which was issued by Special Judge, North Tripura, Dharmanagar in c/w Case No. Special (NDPS) 03 of 2019, arising out of Churaibari P.S. Case No. 48/2018. Exhibit '15' is certification of the entries and according to this, the re- samples were drawn in the presence of the Magistrate before the order passed for the pre-trial disposal. Exhibit '15' is dated Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 17/32 29.10.2019 and it refers the order dated 24.05.2019. After the re- sample was drawn in presence of the Magistrate, the contraband articles were resealed in presence of the Magistrate. Exhibit '15A' is the certification of the inventory, Exhibit '15-B' is the photographs of the narcotic and Exhibit '16' is certificate of the entries made with regard to the oil tanker. Exhibit '18' is the godown/malkhana receipt showing deposit of 549.900 kg of ganja kept in 55 rectangular packets in Lot-A and Lot-B, four samples sealed in paper envelopes marked 'AS1', 'AS2', 'BS1' and 'BS2' of 25 gram each and one oil tanker. The Malkhana Incharge has proved the entry number 126 in the Malkhana/godown register.
26. Learned Additional Public Prosecutor lastly submits that recently in the case of Narcotics Control Bureau vs. Kashif reported in (2024) 11 SCC 372, the Hon'ble Supreme Court has considered all the previous case laws and delved into Section 52A of the NDPS Act. The Hon'ble Supreme Court has held that notwithstanding anything contained in the Indian Evidence Act or the Code of Criminal Procedure, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs and psychotropic substances and list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 18/32
27. Learned Additional Public Prosecutor submits that in paragraph '36' of its judgment in case of Kashif (supra), the Hon'ble Supreme Court has referred the Constitution Bench judgment in case of Pooran Mal vs. Director of Inspection (Investigation) New Delhi (1974) 1 SCC 345 wherein it has been observed that in India, the law of evidence is modelled on the rules of evidence which prevailed in English Law and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In the case of State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172, the Hon'ble Supreme Court has explained that the judgment in Pooran Mal (supra) case cannot be understood to have laid down the law that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search. The Constitution Bench further held that the question of admissibility of evidence, which may be relevant to the question in issue, has to be decided in the context and the manner in which the evidence was collected and is sought to be used. Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 19/32
28. Learned Additional Public Prosecutor further submits that in the case of State of H.P. vs. Pirthi Chand reported in (1996) 2 SCC 37, the Hon'ble Supreme Court following the observations made by the Constitution Bench in Pooran Mal (supra) held inter alia that the power of search and seizure is an accepted norm in our criminal law and the Evidence Act permits relevancy as the only test of admissibility of evidence. It has been held that the evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground and it is wrong to invoke the spirit of the Constitution to exclude such evidence. The Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure.
29. It is submitted that in paragraph '41' of its judgment in case of Kashif (supra), the Hon'ble Supreme Court has held that in view of the law laid down by the Constitution Benches in the case of Pooran Mal (supra) and in case of Baldev Singh (supra), any procedural illegality in conducting the search and seizure by itself, would not make the entire evidence collected thereby inadmissible. The Court would have to decide the admissibility of the evidence in the context and the manner in which the evidence was collected and was sought to be used during the course of trial. On the strength of these judgments, Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 20/32 learned Additional Public Prosecutor for the State submits that any procedural irregularity or illegality found to have been committed in conducting the search and seizure would not by itself make the entire evidence inadmissible. The Court have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
30. It is, thus, submitted that on the face of the evidences present on the record, the learned trial court has rightly held that the guilt of the accused have been duly proved. No interference with the impugned judgment and order is warranted.
Consideration
31. Having heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also on perusal of the records, this Court finds that in this case, PW-4 has categorically recorded that he had received information on 08.05.2019 at 09:00 Hrs. which he had recorded in writing and communicated to the Zonal Director who constituted a team of NCB officials at Patna. The said written note has not been brought on record but in our considered opinion, the evidences collected during search of the vehicle in question cannot be thrown away on this ground alone. In the case of Karnail Singh (supra), it has been categorically held that non-compliance of the provision may Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 21/32 not vitiate the trial if it does not cause any prejudice to the accused. It has been further held that this provision should not be misused by the wrongdoers/offenders as a major ground for acquittal and it is to be taken as a discretionary measure which should check the misuse of the act rather than providing an escape to the hardened drug peddlers.
32. There is yet another reason for not accepting the plea of the appellants as regards non-compliance with Section 42 of the NDPS Act. In our opinion, the vehicle in question is an oil tanker which is a public utility transport vehicle and even though it is owned by one individual, the test is not the ownership. The test is as to whether the vehicle is a 'private service vehicle' or it is a 'public service vehicle'. In the Motor Vehicle Act 1988, section 2(33) and 2(35) defines the 'private service vehicle' and 'public service vehicle' which we reproduce hereunder for a ready reference:-
"(33) "private service vehicle" means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;
(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage."
Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 22/32
33. In the present case, there cannot be any iota of doubt that the vehicle in question is a public utility service vehicle, therefore, in this case, Section 43 of the NDPS Act could be applied whereunder there is no requirement to record in writing the information received and communication of the same to the senior police officers. For these reasons, the plea based on Section 42 of the NDPS Act would fall.
34. Learned counsel for the appellants has submitted that in this case the seizure list witnesses have not been examined. In this regard, we have noticed from the evidence of the prosecution witnesses, particularly the evidence of the informant (PW-4) that he has proved the seizure list prepared in his handwriting and he has stated that on each of the pages there are signature of the accused persons, the signature of both the independent witnesses and the signature of the members of the NCB team. This seizure list has been marked Exhibit '2/2'. A perusal of the search-cum- seizure list present on the record would show that the search-cum- seizure list contains signature of all the accused, the two seizure list witnesses and the members of the NCB team. In presence of the accused persons, the seized contraband ganja ware kept in two lots i.e. Lot-A and Lot-B. Lot-A contained 28 packets which were kept in 14 nylon sacks containing two packets each. Lot-B Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 23/32 contained 27 packets which were kept in 13 nylon sacks containing two packets and one nylon sack having one packet. From both the lots, some quantity of ganja were taken out and four samples of 25 gram each were prepared. The samples taken out from Lot-A were kept in two separate plastic pouch which were sealed with heat seal and after putting each of them in an envelope, the same was closed with seal and stamp and marked 'AS1' and 'AS2'. In similar manner, the two samples taken from Lot-B were dealt with and marked 'BS1' and 'BS2'. It is evident that the sampling was done by the NCB team led by PW-4 in presence of the accused persons and members of the NCB team. The seized articles were kept in sealed nylon sacks and on the sealed packets also signature of all the accused persons, the seizure list witnesses and the seizing officer were taken.
35. This Court further finds that three test memos were prepared. The prosecution has brought on record the test memos which is Exhibit '7'. The FSL report number 456-457/SHD(N)-49-50 dated 15.06.2019 has been brought in evidence as Exhibit '19'. The FSL report confirmed that the packets marked as 'AS1' and 'BS1' were found having leaves seeds and stalks and each responded to the test for cannabis. Each has the characteristic of ganja.
36. This Court has further found that with the permission of the learned court, the ganja seized by the NCB team and the Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 24/32 sample of seized narcotics were sent to NCB Malkhana, Patna and the vehicle was ordered to be kept at the Police Station Kanti, Muzaffarpur. The prosecution witness namely Rajan Kumar (PW-6) has deposed. He produced the Malkhana register of NCB Patna, the seized articles of this case and the representative sample kept in the sealed envelope which was prepared at the time of certification. PW- 6 produced the sealed envelope of 'AS2' and 'BS2' which were in his custody. He has proved the signature of Amar Shankar (PW-4) on both the envelopes. This witness has also proved that in the Malkhana register on page no. 128, godown entry no. 126 is related to this case in which the entry has been made of the seized articles and he has proved that both the entries are in his handwriting and that of Hawaldar Manoj Kumar. He has also stated that five other persons have put their signature in this entry who are Manoj Kumar Yadav, Rajan Kumar, Robinson Gamte, Amar Shankar and one more signature which he did not identify. At his instance, Exhibit '21' has been marked.
37. This Court finds that the learned trial court examined PW-6 under Section 165 of the Indian Evidence Act. Both the sealed envelope produced by PW-6 were marked Material Exhibit 'I' and 'II'. The third envelope was marked Material Exhibit 'III'. PW-6 is a competent witness who was Malkhana Incharge since November, Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 25/32 2020. He had produced the material exhibits on the direction of the Zonal Director.
38. We have noticed that in this case, on the order of the learned trial court passed on 24.05.2019, Sri Deepak Kumar, Judicial Magistrate, 1st Class, Muzaffarpur (East) was deputed to certify the seized goods. Exhibit '15', '15A' and '15B' are clearly showing that inventory of the seized ganja was prepared and representative samples of the ganja was drawn in presence of the Magistrate before order for the pre-trial disposal. We find that in this case while preparing inventory, photograph of the seized articles were also taken which has been proved as Exhibit '15B'.
39. On the face of the entire materials which we have noticed hereinabove, we are of the considered opinion that the contention of the learned counsel for the appellants that there is a delay in certification and sampling of the seized ganja would not be a valid ground to canvass. The sampling in duplicate was done in presence of the accused on 09.05.2019 itself and it was duly produced before the learned court on 10.05.2019 in sealed condition which were sent to the Forensic Science Laboratory (FSL) by order of the court. By order of the court only the seized articles were sent to the Malkhana of the NCB at Patna which were later on produced by PW-6. In his deposition, PW-6 has categorically stated that he had produced the seized exhibits with the Malkhana register and Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 26/32 representative sample in the court. The defence never raised any ground of serious prejudice because of non-examination of the seizure list witnesses.
40. In the kind of the materials present on the record, we take note of the relevant part of the judgment of the Hon'ble Supreme Court in the case of Kashif (supra). In case of Kashif (supra), the Hon'ble Supreme Court has taken note of the views expressed by the Supreme Court in case of Yusuf @ Asif vs. State reported in (2024) 14 SCC 217 and Khalid (supra). It has been held in paragraph '46' of the judgment in Kashif (supra) as under:-
46. At this stage, we must deal with the recent judgments in Simarnjit Singh v. State of Punjab 12, in Yusuf v. State13, and in Mohd. Khalid v. State of Telangana14in which the convictions have been set aside by this Court on finding non-compliance with Section 52-A and relying upon the observations made in Mohanlal11. Apart from the fact that the said cases have been decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52-A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act.
12. [(2024) 14 SCC 222 : 2023 SCC OnLine SC 906]
13. [(2024) 14 SCC 217 : 2023 SCC OnLine SC 1328]
14. [(2024) 5 SCC 393 : (2024) 2 SCC (Cri) 650]
11. [Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864] Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 27/32
41. In paragraph '50' of its judgment in Kashif (supra), the Hon'ble Supreme Court has summarised the discussions which we reproduce hereunder for a ready reference:-
50. The upshot of the above discussion may be summarised as under:
50.1 The provisions of the NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. 50.2 While considering the application for bail, the court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
50.3 The purpose of insertion of Section 52-A laying down the procedure for disposal of seized narcotic drugs and psychotropic substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the narcotic drugs and psychotropic substances.
50.4 Sub-section (2) of Section 52-A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 28/32 50.5 Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
50.6 Any lapse or delay in compliance with Section 52-A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.
42. In yet another judgment, in case of Bharat Aambale vs. State of Maharashtra reported in (2025) 8 SCC 452, the Hon'ble Supreme Court has been pleased to summarise the law relating to search, seizure and sampling of Narcotic Drugs and Psychotropic Substances in the following words:-
"56. We summarise our final conclusion as under:
56.1. Although Section 52-A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a Magistrate.
Mere drawing of samples in the presence of a Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 29/32 gazetted officer would not constitute sufficient compliance of the mandate under Section 52-A sub- section (2) of the NDPS Act.
56.2. Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal2, yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.
56.3. Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52-A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52-A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
56.4. The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52-A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.
56.5. Mere non-compliance of the procedure under Section 52-A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
2. Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864 Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 30/32 56.6. If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52-A of the NDPS Act.
56.7. Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard-and- fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
56.8. Where there has been lapse on the part of the police in either following the procedure laid down in Section 52-A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.
56.9. The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52-A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.
56.10. Once the foundational facts laid indicate non-compliance of Section 52-A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either: (i) there was substantial compliance with the mandate of Section 52-A of the NDPS Act, Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 31/32 OR (ii) satisfy the court that such non-
compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt."
43. Similar view has been taken by the Hon'ble Supreme Court in the case of Surepally Srinivas vs. State of Andhra Pradesh (now State of Telangana) reported in 2025 SCC OnLine SC 683 with regard to the effect of non- compliance with the provisions of subsection (2) of Section 52A of the NDPS Act.
44. Applying the aforesaid views of the Hon'ble Supreme Court, when we examine the evidences available on the record, in the present case, it is found that the prosecution has brought on record the mandatory evidences such as inventory photographs, sample of seized substance which were prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act. In our considered opinion, a fair procedure has been adopted by the seizing officer and the Investigating Officer and they have fully complied with the procedure. Nothing has been brought to the notice of this Court which may lead the Court to draw an adverse inference against the prosecution.
Patna High Court CR. APP (DB) No.445 of 2023 dt. 02-12-2025 32/32
45. In result, we find no merit in these appeals. The appeals are dismissed.
46. Let a copy of this judgment together with the trial court's record be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) SUSHMA2/-
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