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IN THE HIGH COURT OF JUDICATURE AT PATNA
ALOK KUMAR PANDEY, J.
Tilakhdhari Yadav S/O Late Kedar Yadav - Appellant
Versus
The State of Bihar - Respondent
CRIMINAL APPEAL (SJ) No.49 of 2011
Decided On : 26-03-2026
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 20(b) and 50 – Recovery of Ganja – Conviction and sentence – In criminal jurisprudence, place of occurrence is required to be proved, but in present case, none of prosecution witnesses had pointed out specific boundary of place of occurrence – Prosecution case suffers from several infirmities – Seizure-list witness turned hostile and did not support recovery of Ganja in his presence – Seized Ganja was not sent for chemical examination – Very basis to prove case of NDPS is doubtful in absence of FSL report regarding recovered materials and prosecution has failed to prove its case on several counts including non-compliance of mandatory provision of Section 50 of NDPS Act – Prosecution has failed to prove its case beyond reasonable doubt – Impugned judgment of conviction and order of sentence set aside – Appeal allowed. (Paras 17, 18, 19, 21 and 22)
Key Points: - The High Court allowed the criminal appeal and set aside the conviction and sentence of 10 years rigorous imprisonment and a fine of Rs. 20,000 passed by the Additional District & Sessions Judge (!) (!) . - The prosecution failed to prove its case beyond reasonable doubt due to the non-compliance of mandatory provisions under Section 50 of the NDPS Act, specifically the failure to inform the accused of the right to be searched in the presence of a Gazetted Officer or Magistrate (!) (!) . - The seizure list witnesses (PW-5 and PW-6) turned hostile and stated that neither the search nor the recovery of ganja was made in their presence, rendering the seizure list evidence insignificant (!) (!) (!) . - The prosecution failed to establish the specific boundary of the place of occurrence, as key witnesses admitted they could not specify the boundaries of the hut where the alleged recovery took place (!) (!) (!) . - There was no Forensic Science Laboratory (FSL) report or chemical examination report on record to establish that the seized substance was indeed ganja (!) (!) . - Contradictions existed between prosecution witnesses PW-2 and PW-4 regarding the exact quantity of ganja recovered, with PW-2 claiming additional small packets were found which PW-4 did not mention (!) (!) . - The trial court erred in law and fact by convicting the appellant despite the prosecution's failure to prove conscious possession and the vitiation of the search procedure (!) (!) . - The appellant is discharged from the liability of his bail bonds and the judgment is transmitted to the jail superintendent for compliance (!) (!) .
JUDGMENT :
Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.
2. The present appeal is directed against the judgment of conviction and order of sentence dated 27.12.2010 passed by learned Additional District & Sessions Judge, 3rd, Ara, Bhojpur in connection with N.D.P.S. Case No. 2 of 1998 arising out of Shahpur P.S. Case No. 7 of 1998 (G.R. Case No. 141 of 1998) whereby and whereunder the appellant has been convicted for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) and has been sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 20,000/- under Section 20(b)(ii)(B) of the NDPS Act. In default of payment of fine, appellant has been further awarded six months simple imprisonment.
3. As per prosecution case, on 20.01.1998, PW-2, Ram Vilas Singh, who was then posted as Awar Nirikshak (Sub- Inspector) at Shahpur Police Station, along with other police personnel, namely Ramakant Mishra, Prabhat Kumar, Arvind Shukla, Md. Junun Khan and driver of police jeep Shiv Kumar Yadav, left the police station at about 9:30 A.M. for the purpose of arresting warrantees and absconders. At about 9:45 A.M., they reached village Shahpur and, during the course of the raid, arrested one warrantee Chittani Singh. Thereafter, PW-2 allegedly received secret information that one Tilakdhari Yadav, son of Kedar Yadav, resident of village Shahpur was illegally selling ganja from a thatched hut (foos ki marai) situated at Shahpur Bazar. Acting upon the said secret information and for its verification, PW-2, along with the police force, proceeded to the hut of Tilakdhari Yadav and reached there at about 10:00 A.M. In presence of two local independent witnesses, namely Rajesh Kumar Gupta and Md. Sagir Shah, the search of the said hut was conducted. During the search, one person was found sitting inside the hut. From beneath of his thigh, one blue- coloured jeans cloth bag containing approximately 500 grams of ganja was recovered. Further, ten plastic packets each containing approximately 2 grams of ganja and two plastic packets each containing approximately 5 grams of ganja were also recovered. Additionally, one iron weighing balance of 500 gram capacity, marked “M.K. Mehal Industries,” was seized from the spot. The person found in the hut attempted to flee away but was apprehended by the police personnel. Upon inquiry, he disclosed his name as Tilakdhari Yadav (appellant), son of Kedar Yadav, resident of village Shahpur, P.S. Shahpur, District Bhojpur. Upon enquiry, the appellant neither produced any licence or valid document authorizing possession of the recovered ganja nor gave any satisfactory reply. A seizure list was prepared in presence of the aforesaid two witnesses upon which the witnesses put their signatures and the recovered articles were seized.
4. On the basis of written statement of the informant/PW-2, Shahpur P.S. Case No. 7 of 1998 dated 20.01.1998 was registered for the offence under Section 20(B) of the NDPS Act. Routine investigation followed. Statement of witnesses came to be recorded and on the completion of investigation, charge sheet has been submitted against the appellant under Section 20(B) of the N.D.P.S. Act. Thereafter, the learned trial court took cognizance under the aforementioned Section of the N.D.P.S Act. The case was committed to the court of sessions after following due procedure. The learned trial court framed charges against the appellant under Section 20(B) of the N.D.P.S Act. Charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.
5. In order to bring home the guilt of the accused persons, the prosecution has examined all together six witnesses namely, PW-1 Prabhat Kumar, PW-2 Rambilas Singh(informant), PW-3 Chandrika Singh, PW-4 Arvind Shukla, PW-5 Rajesh Kumar Gupta and PW-6 Muhammad Sagir Sah.
6. Prosecu
The court affirmed that possession of 201 kilograms of ganja established under the NDPS Act sufficed for conviction, confirming that procedural safeguards were adhered to despite the absence of indep....
Non-compliance with statutory requirements for search and seizure under the NDPS Act renders the prosecution's case doubtful, leading to the reversal of conviction.
The prosecution failed to establish the appellant's guilt beyond a reasonable doubt, revealing critical inconsistencies and procedural lapses in adhering to the NDPS Act.
(1) Admission of accused during course of his interrogation cannot be made admissible in evidence. (2) Fair trial is a constitutional guarantee to an accused under Article 21. Fair trial includes fai....
Non-compliance with Section 42 of the NDPS Act undermines the validity of search and seizure, impacting the prosecution's case significantly.
The court affirmed the conviction under the NDPS Act, emphasizing that procedural lapses do not invalidate the trial when no prejudice is demonstrated, and the prosecution established possession and ....
The court emphasized the necessity for strict adherence to procedural safeguards in drug-related cases, ruling that non-compliance rendered the prosecution's case unsustainable.
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