Patna High Court
Md. Afak @ Md. Afaque @ Afaque vs The State Of Bihar on 26 November, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.431 of 2023
Arising Out of PS. Case No.-520 Year-2020 Thana- KISHANGANJ District- Kishanganj
======================================================
Md. Afak @ Md. Afaque @ Afaque, Son of Md. Rijabul, Resident of Rang-
pura Milmili, PS Mirganj, Distt Purnea
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 315 of 2023
Arising Out of PS. Case No.-520 Year-2020 Thana- KISHANGANJ District- Kishanganj
======================================================
Md. Ibrahim Miyan (Driver) @ Abrahim Miya, Son of Amimul Miya @
Aminur Miya, R/o Jaramani P.S.- Chitulguri, Dist- Kuchbihar, State- West
Bengal
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 431 of 2023)
For the Appellant/s : Mr. Sunil Kumar Singh, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 315 of 2023)
For the Appellant/s : Mr. Rabindra Kumar Tiwari, Advocate
Mr. Mrityunjay Kumar, Advocate
Mr. Dinkar Kumar, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 26-11-2025
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State in both the cases.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025
2/31
2. These two appeals are arising out of judgment of
conviction dated 23.02.2023 (hereinafter referred to as the
'impugned judgment') and the order of sentence dated 01.03.2023
(hereinafter referred to as the 'impugned order') passed by learned
Special Judge (NDPS Act)-cum-Additional Sessions Judge 1st,
Kishanganj (hereinafter referred to as the 'learned trial court') in
Special (NDPS) Case No. 01 of 2021 arising out of Kishanganj
P.S. Case No. 520 of 2020.
3. 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 (in short 'NDPS') Act and ordered to
undergo rigorous imprisonment for fourteen years and to pay a
fine of Rs.1,50,000/-. In case of default of payment of fine, the
appellants have to further undergo three months imprisonment.
Prosecution Case
4. The prosecution case is based on the written
application of the informant. In his written application, the Police
Inspector Ashwini Kumar, Station House Officer, Kishanganj has
alleged that on 24.12.2020 at about 09:05 AM, he received
information that a pickup van carrying ganja was coming from
Faringgola side. A police team led by the Sub-Divisional Police
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025
3/31
Officer, Kishanganj including SI Ashwini Kumar and other
officers proceeded towards Faringgola Check Post (NH-31) and
reached there at 09:20 AM. At about 09:40 AM, a pickup van
bearing Registration No. WB76A 5113 coming from Panjipara
side was intercepted and the driver and khalasi were asked to
come out of the vehicle. The driver and khalasi disclosed their
identities as Md. Ibrahim Miyan and Md. Afaq and upon asking,
both could not say anything about the goods loaded on the pickup
van. In presence of two passers-by namely Laxman Paswan and
Prithvi Paswan, the said vehicle was searched from which twelve
packets of ganja concealed in a secret chamber beneath the truck
were recovered. The driver and helper failed to produce any valid
documents for the ganja. All the twelve packets were weighed on
the spot and were found a total of 61.700 kg of ganja. A Samsung
mobile phone bearing no. 8350014715 was seized from driver
Ibrahim and a Jio mobile phone was seized from the khalasi Afaq.
It is further alleged that during interrogation, both accused
disclosed that the ganja loaded vehicle was given to them in
Cooch Behar, West Bengal by one Akram, who had asked them to
deliver the vehicle at Church Chowk, Purnia to one Chandan.
Ibrahim stated that he knew Akram and provided his mobile
numbers 8107718634 and 7384136724. Since possession and
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025
4/31
transportation of ganja is prohibited and punishable, both the
accused persons Md. Ibrahim Miyan and Md. Afaq along with
Akram, Chandan and the vehicle owner were made accused under
Sections 420/414/120B IPC and Sections 20(b)(3)/22(3)/23(3)/27
of the NDPS Act.
5. On the basis of this written application, Kishanganj
P.S. Case No. 520 of 2020 dated 24.12.2020 was registered under
Sections 420/414/120B IPC and Sections 20(b)(3)/22(3)/23(3)/27
of the NDPS Act against the above named accused persons.
6. After investigation, Police submitted chargesheet
bearing No. 120 of 2021 dated 21.03.2021 against the appellants
under Sections 420/414/120B IPC and Sections 20(b)
(3)/22(3)/23(3)/27 of the NDPS Act. On the basis of the
chargesheet, learned trial court vide order dated 26.03.2021 took
cognizance of the offences punishable under above-mentioned
sections against the appellants.
7. Charges were read over and explained to the
appellants in Hindi to which they pleaded not guilty and claimed
to be tried. Accordingly, vide order dated 11.06.2021, charges were
framed against Md. Afak @ Md. Afaque @ Afaque and Md.
Ibrahim Miyan @ Abrahim Miya under Sections 20(b)(ii)(c) and
29 of the NDPS Act and Sections 414 and 120B of the IPC.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025
5/31
8. In course of trial, the prosecution examined as many
as five 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 Dharmpal Kumar
PW-2 Kunal Kumar
PW-3 Dhanji Kumar
PW-4 Manish Prajapati
PW-5 Anjani Kumar
List of Exhibits
Exhibit '1' Seizure List in writing with signature of Late
Ashwini Kumar
Exhibit '2' Signature of Ashwini Kumar on typed FIR
Exhibit '2/1' Endorsement on FIR
Exhibit '3' Signature of Late Ashwini Kumar on Formal
FIR
Exhibit '4' Test report of CFSL
Exhibit '5' Forwarding application bearing no. 51/2021
dated 27.01.2021 for sending of FSL, Patna
Exhibit '5/1' Forwarding application no. 52/2021 dated
27.01.2021for sending the FSL, Chandigarh
9. Thereafter, the statements of the appellants were recorded under Section 313 of the CrPC. The appellants took a plea that they are innocent and have been falsely implicated in this case.
Findings of the Learned Trial Court
10. Learned trial court after examining the evidences available on the record found that all the prosecution witnesses are Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 6/31 not only worthy of credit but they have also categorically supported the time, date and place of alleged search and seizure of 61.700 kgs of contraband ganja kept hidden inside the hidden chamber specially prepared in the pickup van of which accused persons Md. Ibrahim was a driver and accused Md. Afaq was the Khalasi. The learned trial court did not find any inconsistency either in the number of packets and weight of the ganja alleged to be seized from the pickup van. Learned trial court found that the process of search, seizure and sampling of ganja has been duly proved by the witnesses and the document.
11. The learned trial court opined that the prosecution case cannot fail only for the reason of non-examination of independent seizure list witnesses if the other material particulars of the prosecution case gets established through cogent and credible evidence. Learned trial court found that the witnesses and the documents have categorically and consistently established the facts of search and seizure of 61.700 kgs of contraband ganja and in that background learned trial court opined that the existence of hidden chamber in the pickup van and the fact of aforesaid ganja being kept hidden secretly in the said chamber itself manifests the intention and knowledge of the accused persons regarding illegal transportation of aforesaid ganja.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 7/31
12. The learned trial court has held that there shall be a presumption of culpable, mental state against the accused persons according to mandate of Section 35 of the NDPS Act. Accused were asked to explain about possession of such huge amount of ganja during their statements under Section 313 CrPC but they have simply denied of having any knowledge of such quantity and their relationship with the persons named Akram and Chandan. No explanation, which would have made the court to believe that they did not have either the required knowledge or intention to transport illegal ganja, has been offered during their statements. They have admitted that they were driver and khalasi of the pickup van.
13. The learned trial court held that Section 50 of the NDPS Act would not be applicable for the simple reason that the recovery and seizure has been made from the van and not from the accused persons. The trial court held that the prosecution had been able to discharge its initial burden that the accused persons were found transporting illegal ganja to the tune of 61.700 kg which would fall in the category of a commercial quantity. The charges under Section 20(b)(ii)(c) read with Section 29 of the NDPS Act were proved, however, the charge under Section 414 read with Section 120B of the IPC could not be proved because there was no Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 8/31 evidence on the record to suggest that the seized ganja was a stolen property.
14. Accordingly, the learned trial court found that the prosecution has been able to prove the charges against the accused persons and held them guilty and passed the order of sentence.
Submissions on behalf of the appellants
15. Learned counsel for the appellants would submit that in this case, the seizure list was prepared before two independent witnesses but they were neither named in the witness column of the chargesheet nor were examined at the trial. No Magistrate was present at the time of search and preparation of seizure list.
16. It is submitted that an incomplete chargesheet was filed on the 89th day of the occurrence without the Central Forensic Science Laboratory (in short 'CFSL') report and on the basis of this incomplete chargesheet, cognizance was taken, charges were framed, trial proceeded and three prosecution witnesses were examined. At this stage, the CFSL reports were brought on record as evidence.
17. Learned counsel further submits that the seized contraband was produced in the court on 27.01.2021 for sampling. The accused were not present at the time of sampling. There was, thus, a delay of 35 days in production of the seized contraband Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 9/31 before the court. Malkhana Incharge police personnel, namely, Vinay Kumar Upadhyay was neither named in the witness column of the chargesheet nor was examined at trial even on the directions of the trial court. It is, thus, submitted that there is an apparent violation of Section 52A(2) of the NDPS Act. Learned counsel further submits that police is said to have got a secret information while at the police station at 09:05 AM in the morning on 24.12.2020. In such circumstance, it was required to fulfill the mandate of Section 42(1) and 42(2) of the NDPS Act but neither the informant recorded the secret information nor informed his superiors. It is submitted that there is non-compliance of Section 57 and 57A of the NDPS Act.
18. It is further submitted that pickup van was a private vehicle and there is nothing on the record to show that it was a public conveyance. Referring to the statement under Section 313 CrPC of the accused, learned counsel submits that the driver has stated that he was not a regular driver, he runs a tea shop whereas the khalasi in his statement has stated that he was a lift taker. In such circumstance, the presumption under Section 35 of the NDPS Act stands rebutted and reverse burden of proof under Section 54 of the Act is discharged in favour of the appellants. Learned counsel has relied upon the judgments of the Hon'ble Supreme Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 10/31 Court in the case of Karnail Singh and Others Vs. State of Haryana reported in (2009) 8 SCC 539 (paragraph '35') and Boota Singh and Ors. vs. State of Haryana reported in (2021) 19 SCC 606 on Section 42 of the NDPS Act. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Bharat Aambale Vs. State of Chhatisgarh reported in 2025 SCC OnLine SC 110 (paragraph '50') and Surepally Srinivas vs. State of Andhra Pradesh (now State of Telangana) reported in 2025 SCC OnLine SC 683 on Section 52A of the NDPS Act.
Submissions on behalf of the State
19. On the other hand, learned Additional Public Prosecutor for the State has defended the impugned judgment and order. It is submitted that as per the prosecution case, the informant-police officer got an information on 24.12.2020 at 09:05 AM that a pickup van loaded with ganja was coming from the side of Faringgola. On this information, on the order of the Sub- Divisional Police Officer, Kishanganj, a team of police officer led by the Sub-Divisional Police Officer was constituted and the informant had proceeded from the police station to 'Faringgola' Checkpost. He and other police officers were being led by the Sub- Divisional Police Officer, Kishanganj. They reached the Checkpost at 09:20 AM and at 09:40 AM, they saw the pickup van bearing Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 11/31 Registration No. WB76A 5113 from side of Panjipara. It is, thus, submitted that the information received at 09:05 AM in the police station was duly brought to the notice of the Sub-Divisional Police Officer, Kishanganj and under his leadership, a raiding team had proceeded to the 'Faringgola' Checkpost.
20. It is submitted that Section 42 of the NDPS Act would be applicable only in such cases where an officer being an officer superior in rank to a peon, sepoy or constable as described in Section 42 has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed which is liable for seizure or freezing or forfeiture under Chapter VA of the NDPS Act is kept or concealed in any building, conveyance or enclosed place, in such cases, the officer may between sunrise and sunset enter into and search any such building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry.
21. It is further submitted that Section 43 of the NDPS Act confers power of seizure and arrest in public place by any officer of any of the departments mentioned in Section 42 of the NDPS Act. It is submitted that power has been conferred upon Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 12/31 such officer to seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under the NDPS Act has been committed and along with such drug or substance, any animal or conveyance or article liable to confiscation under the Act. Referring to the explanation to Section 43 of the NDPS Act, learned Additional P.P. submits that according to the explanation, for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop or other place intended for use by, or acceptable to, the public.
22. It is his submission that in the case of Boota Singh (supra), the Hon'ble Supreme Court has taken note of paragraph '35' of the judgment of the Hon'ble Constitution Bench in Karnail Singh (supra) wherein the earlier views in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat reported in (2000) 2 SCC 513 and Sajan Abraham v. State of Kerala reported in (2001) 6 SCC 692 have been discussed. It has been opined earlier that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The position got strengthened with the amendment to Section 42 by Act 9 of 2001.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 13/31
23. It is submitted that before the trial court, the defence never pleaded that the pickup van in the present case was not a public conveyance within the meaning of Section 43. It would appear from the evidence available on the record that the defence never suggested to the prosecution witnesses that the vehicle in question was a public conveyance. In fact, Ibraham (driver) has stated in his statement under Section 313 CrPC that he was a temporary driver and he had been asked to take the vehicle to Raiganj. It is, thus, submitted that Section 42 would have no application in the present case and it will be covered under Section 43 of the NDPS Act.
24. Learned Additional Public Prosecutor further submits that in this case, the FIR was registered on 25.12.2020. This was COVID-19 period. A perusal of the order dated 25.12.2020 would show that while producing the accused persons before the learned CJM I/C, the police officer had produced the seizure list with seized articles, whereafter an order was passed under which the seized article was handed over to the I.O. of the case for safe custody. It is submitted that there was no delay in production of the seized article before the learned court.
25. It is further submitted that on 06.01.2021, the I.O. filed an application in the court seeking permission to send the Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 14/31 sample of the seized ganja for its chemical examination to the Forensic Science Laboratory, Patna and CFSL, Chandigarh. On this application, the learned Special Judge, NDPS, Kishanganj appointed Shri D.K. Pandey, J.M.-1st Class, Kishanganj for sampling. Order was also passed to send the samples to the FSLs. Thereafter the sampling was done in presence of the Magistrate which would be evident from Exhibit '5' and Exhibit '5/1' both dated 27.01.2021. Thus, in the present case, the sampling has been done in presence of a learned Magistrate and the samples so prepared in presence of the Magistrate were sent to the Forensic Science Laboratories.
26. Relying upon the judgment of the Hon'ble Supreme Court in the case of Narcotics Control Bureau vs. Kashif reported in 2024 SCC OnLine SC 3848, learned counsel submits that the Hon'ble Supreme Court has categorically held in this judgment that 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 Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 15/31 caused to the accused. It has also been held that any lapse or delay in compliance of Section 52A by itself would not vitiate the trial.
27. It is further submitted that in Bharat Aambale (supra), the Hon'ble Supreme Court has held that any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the rules/standing orders thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. It is, thus, submitted that in the present case not only the seized articles were produced before the court on the very first day, subsequently even sampling was done in presence of learned Magistrate. The prosecution has been able to prove the primary evidences in terms of the Act and the judgments of the Hon'ble Supreme Court, hence no fault may be found in the impugned judgment and order.
Consideration
28. We have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also perused the trial court records.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 16/31
29. It appears on perusal of the records that on the point of seizure of ganja in 12 packets having total weight of 61.700 kgs from the pickup van and from the conscious possession of the accused persons/appellants, the learned trial court has considered the seizure list (Exhibit-1). The seizure list contains the date and time of seizure and according to it, the seizure was made on 24.12.2020 at 10.50 AM. The learned trial court found that the informant who was the seizing officer in this case could not be examined because he had been murdered. This fact has been brought to the notice of the court by the I.O. Anjani Kumar (PW-5) during his evidence which has not been disputed by the defence. In such circumstance, the learned trial court has relied upon the evidence of the other members of the police team who were involved in conducting the search and seizure. We have once again gone through the evidence adduced on behalf of the prosecution.
30. PW-1 in this case happened to be a member of the raiding party. He has stated that on 24.12.2020, a police team was constituted on the instruction of the then S.D.P.O. in which he was one of the members. He has testified that when the police team reached near Faringgola check-post and intercepted the pickup van having Registration No.WB76A5113 from the side of West Bengal, the vehicle was searched in presence of two independent Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 17/31 witnesses, namely Lakshman Kumar Paswan and Prithvi Kumar Paswan and during the search 12 packets of ganja was found kept hidden in a chamber of 4 fit designated ditch in the pickup van. The total weight of ganja kept in 12 packets is 61.700 kgs. He has also deposed that the seizure list was prepared on the spot and a copy thereof was given to the accused persons. We have noticed from the pattern of cross-examination that the defence has not questioned the presence of PW-1 at the time of search and seizure. In his cross-examination, PW-1 has stated that this was the lockdown period, therefore, the traffic was low and except the two independent witnesses and the police personnel no other witness was there. This Court finds that the defence has not been able to create any doubt in the testimony of PW-1.
31. PW-2, Kunal Kumar is another member of the raiding party. He has also testified that on the direction of the officer in-charge Ashwini Kumar he had gone to Faringgola checkpost. He has stated about presence of Dhanji Kumar (PW-3), Dharampal Kumar (PW-1) and Manish Prajapati (PW-4) with him. He has stated that the then officer in-charge Ashwini Kumar was with him. In his presence, the vehicle in question was intercepted and in presence of two persons, namely, Lakshman Paswan and Prithvi Paswan, search was conducted in the pickup van. He has Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 18/31 stated about seizure of 12 packets of ganja being 61.700 kgs. In his cross-examination, he has stated that when packet was brought to the police, he was present and in his presence all the packets were kept in the Malkhana of the police station and accused were put in the 'Hazat'. Thus, PW-2 has not only stated about the search and seizure of the contraband, he has gone to the extent of saying that in his presence the packets were kept in the Malkhana of the police station.
32. PW-3, Dhanji Kumar was posted as trainee Police Sub-Inspector in Kishanganj police station. He was told by late Ashwini Kumar, the officer in-charge that they had to go near Faringgola check-post. This witness has stated that he along with three others, namely, Manish Prajapti, Dharampal Kumar and Kunal Kumar had gone there. They had seen the pickup van coming from Pajipara. The vehicle was stopped and the driver and another person who were on the vehicle were asked to come down. He has also stated about the conduct of search and seizure in presence of two witnesses. PW-3 has identified the seizure list (Exhibit 1). He has stated that the seizure list is in the handwriting of late Ashwini Kumar, it was prepared on his signature. This witness identified the signature of Ashwini Kumar and the self- written statement. The signature of Ashwini Kumar on the FIR has Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 19/31 been marked Exhibit-2. The endorsement made on the FIR written by late Ashwini Kumar has been marked Exhibit-3 and the signature of late Ashwini Kumar on the formal FIR has also been marked Exhibit-4 at the instance PW-3. In his cross-examination, this witness has affirmed that 12 packets of ganja were seized but he did not remember whether those packets were open by the police at the place of occurrence or not. He has stated that the seized ganja were brought to the police station but thereafter what happened was not known to him.
33. PW-4 Manish Prajapati is a trainee Police Sub- Inspector posted at Kishanganj Police Station. He has stated that a team was constituted by the Sub-Divisional Police Officer for verification of the information. He reached Faringgola Check Post at 9:20 AM and found that at 9:40 AM, one pick-up van bearing Registration No. WB76A 5113 reached Faringgola Check Post. The said vehicle was intercepted. The driver and khalasi did not disclose about the kind of materials on the vehicle. They were taken into custody. In the meantime, two independent persons were passing through that area who were independent witnesses of the seizure list. This witness has also claimed that seizure list was prepared in presence of two independent witnesses namely Lakshman Kumar Paswan and Prithvi Kumar Paswan. Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 20/31
34. From the evidence of PW-1 to PW-4, we are of the considered opinion that so far as this search of the vehicle and seizure of twelve packets of ganja weighing 61.700 kg is concerned, the prosecution has been able to prove it. The fact that two seizure list witnesses namely Lakshman Kumar Paswan and Prithvi Paswan were not made chargesheet witnesses in this case and that they were not produced in course of trial is a lapse on the part of the I.O., however, their non-examination has not caused any prejudice to the defence. The defence is unable to take any contradictions on this point from PW-1, PW-2, PW-3 and PW-4.
35. Anjani Kumar (PW-5) is the I.O. of this case. He had deposited the seized article in the malkhana and had recorded the statement of the informant Ashwani Kumar. He had also recorded statement of Dhanji Kumar, Kunal Kumar and Dharampal Kumar. He had produced the seized ganja in court and recorded statements of the seizure list witnesses. He has stated that in presence of the learned Magistrate, samples were taken, videography was done and samples were sent to the laboratories. The defence suggested him that he had not complied with Section 50 and any other provision of the NDPS Act which this witness denied. It is, however, evident that the I.O. was not suggested by defence that the vehicle is a private service vehicle.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 21/31
36. We have noticed from the impugned judgment that while considering as to whether the articles alleged to have been seized from possession of the accused persons is ganja and contraband material, the learned trial court has accepted the prosecution evidence i.e., the report of the CFSL, Chandigarh which has been marked Exhibit '4'. As per this report, one parcel sealed with five seals of "AK" which further contained one cardboard box that contained 12 numbers of plastic boxes sequentially marked Exhibit '1' to Exhibit '12'. Exhibit '1' to Exhibit '12' were found to contain some dried, greenish-brown coloured flowering and fruiting tops with characteristic odour of cannabis, stated to be ganja.
37. We have noticed from the ordersheets of the learned trial court that on 06.01.2021, an application was filed by the I.O. in this case in the court of learned District and Sessions, Judge- cum-Special Judge, Kishanganj seeking permission to send the sample of seized ganja of this case for its chemical examination to the Forensic Science Laboratory (FSL), Bihar, Patna and the CFSL, Chandigarh. The learned Special Judge appointed Shri D.K. Pandey, Judicial Magistrate, 1st Class, Kishanganj to prepare the inventory and photographs of the seized articles as well as to prepare the samples of seized narcotics. The court directed that the Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 22/31 samples be sent to the Forensic Science Laboratory as prayed for and the said Inspector (Police) was directed to send the samples to the Forensic Science Laboratory, Bihar, Patna and the CFSL, Chandigarh for its chemical examination and report. We, therefore find that by order of the learned Special Judge, a Judicial Magistrate was appointed for certification of inventory and preparation of samples. On record, we find Exhibit '5' and Exhibit '5/1' which are the two letters sent by the I.O. (PW-6) to the Director of Forensic Science Laboratory, Patna and Chandigarh respectively. The letters have been prepared on 27.01.2021. In the bottom of both the letters (Exhibit '5' and '5/1'), there is a certificate under signature of the learned Judicial Magistrate. From these two exhibits read with the order of the learned trial court, it is found that samplings were done after the court's order, in presence of the Magistrate and those were sent to the Forensic Science Laboratories for examination.
38. One of the contentions raised on behalf of the appellants is that the reports of the Forensic Science Laboratory were produced in course of trial only after three prosecution witnesses had already been examined. It is for this reason that submission has been made that FSL report could not have been Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 23/31 admitted in evidence at this belated stage when the same does not form part of the chargesheet.
39. As regards the production of the FSL reports in course of trial, we would first notice that in this case the sampling was done in presence of learned Magistrate appointed by the trial court. The samples were also sent to the CFSL, Chandigarh and FSL, Patna vide Exhibit '5' and Exhibit '5/1' both dated 27.01.2021. A perusal of the CFSL report of Chandigarh (Exhibit '4') admitted in evidence on 05.07.2022 would show that the sample was received in CFSL on 02.03.2021 through SI Akhil Kumar Paswan. The description and details of their seals/sealings and exhibits of the parcel identity have been disclosed in the examination report dated 30.04.2021. The report shows that the parcel was in sealed condition. The results of examination mentioned in the report (Exhibit '4') reads as under:-
"5. Various laboratory examinations such as Physical test, microscopic, chemical tests and thin layer chromatography(TLC) were carried out on exhibits described above. Physical examination revealed flowering tops with char, odour of cannabis. Characteristic microscopic features were also observed. Chemical tests and chromatographic analysis gave positive tests for cannabinoids and cannabinols including THC. The inference thus drawn is given below:
Ex-1 to Ex-12 are samples of ganja (cannabis)"
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 24/31
40. It is evident from perusal of Exhibit '4' that the examination report was prepared on 19.04.2021 and the formal report number CFSL(C)/698/21/CHEM/104/21/977 is dated 30.04.2021. It was sent to the court of learned District and Sessions Judge-cum-Special Judge, Kishanganj, Bihar vide letter dated 01.10.2021 of the Director which was sent to the concerned court later on. It appears from the order dated 05.07.2022 passed by the learned trial court that the FSL Report (Exhibit '4') was produced before the learned trial court with an application under Section 293 CrPC. It was admitted in evidence without any objection. In course of trial, the defence never raised any objection to the admissibility of the report (Exhibit '4).
41. To this Court, it appears that keeping in view the judgments of the Hon'ble Supreme Court in the case of Kashif (supra) and Bharat Aambale (supra) it is to be seen whether the defence has suffered any prejudice on account of submission of the FSL report at a belated stage in course of trial. The judgments of the Hon'ble Supreme Court as referred above make it crystal clear that any lapse or delay in compliance of Section 52A by itself would not vitiate the trial. In course of argument, learned counsel for the appellants has not stated as to how any serious prejudice has been caused to the appellants in this case only because the FSL Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 25/31 report (Exhibit 4) was brought on record in course of trial. The defence neither objected to the admission of report nor filed any application for calling the author of the report. We are, therefore, of the considered opinion that in a case under the NDPS Act, the trial cannot be taken as vitiated only because the 'FSL' report has been filed with some delay.
42. A plea has been raised as regards non-compliance with Section 42 of the NDPS Act. This Court has given anxious consideration to the same. The law on the subject has been well discussed in several judicial pronouncements of the Hon'ble Supreme Court. In the case of Boota Singh (supra), the Hon'ble Supreme Court was considering a case where the police had got a secret information that the accused were selling poppy straw in a vehicle standing upon a kacha rasta at Rori-Jatana Road and can be apprehended red handed if the raid is conducted. The police officer organised a raiding party and conducted the raid in which accused were found in the jeep bearing number GUD-4997 upon a kacha rasta. The accused were apprehended, two bags were found lying in the said jeep. The police officer had not recorded the secret information in writing. He did not obtain any search warrants for conducting the search of the jeep of the accused during night hours. He did not record any ground for not obtaining Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 26/31 the requisite search warrants in the police file. In such circumstance, a question arose as to applicability of Section 42 of the NDPS Act. The learned trial court rejected the plea of applicability of Section 42 as the court was of the view that the accused were sitting on road in a jeep at a public place. The High Court also dismissed the appeals. In such circumstance, the matter came to the Hon'ble Supreme Court. Before Hon'ble Supreme Court, a contention was raised that the vehicle in question was a private vehicle belonging to the accused Gurdeep Singh and was not a public conveyance, though parked on a public road. Relying upon the judgments of the Hon'ble Supreme Court, in the case of Karnail Singh (supra) followed in subsequent decisions in Sukhdev Singh vs. State of Haryana reported in (2013) 2 SCC 212 and State of Rajasthan vs. Jagraj Singh @ Hansa reported in (2016) 11 SCC 687 it was contended that total non-compliance with Section 42 would entitle the accused for acquittal. The Hon'ble Supreme Court considered the previous case laws on the subject and held that the courts below fell in error in rejecting the submissions advanced on behalf of the appellants.
At this stage, we would also place on record that in the case of Karnail Singh (supra), in paragraph '33', the Hon'ble Supreme Court has inter alia observed as under:
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 27/31 "33. Abdul Rashid1 had been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused...."
In paragraph '34' in case of Karnail Singh (supra), the Hon'ble Supreme Court has observed as under:-
"34. The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policymakers about it. Now for the last two decades police investigation has gone through a sea change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the register/records kept for those purposes in the police station or the respective offices of the authorised officials in the Act if the emergency of the situation so requires. As a result, if the statutory provision under Sections 41(2) and 42 (2) of the Act of writing down the 1 Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513:2000 SCC (Cri) 496 Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 28/31 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 ground for acquittal. Consequently, 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 drug peddlers."
43. The aforementioned observations of the Hon'ble Supreme Court has to be kept in mind together with the observations of the Hon'ble Supreme Court in paragraph '39 (v)' in the case of Kashif (supra) which reads as under:
"39(v). 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."
44. To this Court, therefore, it appears that even in the cases which are covered by Section 42 of the NDPS Act, the ultimate thing which is to be kept in mind is that this provision should not be misused by the wrong doers/offenders as a major ground for acquittal and it should not be allowed to provide an escape to the hardened drug peddlers.
Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 29/31
45. We have examined the evidences available on the record. A public conveyance is a vehicle or mode of transport that the public can use for a fare, such as a bus, train or airline. It is a conveyance that the public has access to and so far as a pickup van is concerned, it is a medium-duty motor vehicle that serves partly as passenger vehicle and partly as cargo transport. Pickup vans are primarily designed for utility. Due to their load carrying capacity and design, they are classified as commercial vehicles. It is used for transporting heavy and bulky goods, construction materials, agricultural products or equipment that might be messy or large.
Public carrier as defined under Advanced Law Lexicon 6 th Edition Volume-III authored by P. Ramanatha Aiyar reads as under:- "An owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward."
The Motor Vehicles Act, 1988 defines 'private service vehicle' and 'public service vehicle' in Clause (33) and (35) respectively under Section 2 which we reproduce hereunder:-
"(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 Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 30/31 for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage."
46. From the pattern of cross-examination, it is crystal clear that the pickup van in this case was not being driven by the owner of the vehicle as a private vehicle. It is not a private service vehicle. Whosoever was the owner of the vehicle had employed driver and khalasi for using the pickup van for transportation purposes and the vehicle was coming from one State to another. The defence never suggested to any of the prosecution witnesses that it was a private service vehicle or that it would not fall in the category of a public conveyance/public service vehicle.
47. To this Court, it appears that the defence never intended to take a plea that the pickup van was a private vehicle. The Hon'ble Supreme Court has held that whether a vehicle was used as a private vehicle or as public conveyance would be a question of fact. If the defence wanted to take benefit of total non- compliance with Section 42 of the NDPS Act, it was incumbent upon the defence to place on record even prima facie materials to demonstrate that the pickup van was being used as a private service vehicle. In case of Boota Singh (supra), the fact was that the jeep belonged to one of the accused and he was himself present in the vehicle when the raid was conducted. The facts of the present case are clearly distinguishable. We are of the considered opinion that in this case, the plea based on Section 42 of the NDPS Patna High Court CR. APP (DB) No.431 of 2023 dt.26-11-2025 31/31 Act taken by the learned counsel for the appellants, at this stage, cannot succeed.
48. In result, this Court finds no illegality or infirmity with the impugned judgment and order of the learned trial court.
49. These appeals are dismissed.
50. Let a copy of this judgment together with the trial court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) arvind/-
AFR/NAFR CAV DATE Uploading Date 01.12.2025 Transmission Date 01.12.2025