The prosecution's failure to adhere to mandatory procedures in the NDPS Act, particularly in drug sampling, necessitates acquittal due to lack of proof beyond reasonable doubt.

JUDGMENT

Date : 25-03-2025

Heard the parties.

2. The present appeal has been preferred against the judgment and order dated 06.06.2022 passed by the learned District and Sessions Judge, West Champaran, Bettiah in N.D.P.S. Case No. 152 of 2018, NCB Case No. 23 of 2018 and Special Case No. 18 of 2018 by which the appellant has been convicted under section 20(b)(ii)C and 23c of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth for short ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. One Lakh (Rs.1,00,000/-) on each count and in default of payment of fine, further to undergo rigorous imprisonment for one year. Both the sentences have been ordered to run concurrently.

3. The prosecution story which led to the initiation/conclusion of the trial and the conviction of the appellant is that on 02.05.2018, the SSB 47 Battalion, Inerwa Head, Raj Kumar Kumawat got information that a person with ‘Charas’ is going to cross pillar no. 413 to enter India from Nepal. Accordingly, a team was formed which reached the Inerwa near pillar no. 413 of India-Nepal Border. Two persons were seen coming, when they were asked to stop, tried to escape. While one managed to escape towards Nepal, the other one (appellant) was caught in the presence of two independent persons, Prem Kumar Yadav and Sushil Yadav, a search was conducted, nine packets in brown polythene was seized.

4. The man gave his name as Sanjay Mahto Kewat (appellant). It weighed 4.5 Kilogram and upon checking from the detection kit, it was prima facie found ‘Charas’ like substance. It was opened and two samples of 25 gram each from the all nine packets were taken out. All the nine packets were marked A while the samples were marked AS1 and AS2. After the sealing, ‘Charas’ was again weighed. It came to 4.450 Kilogram.

5. The accused upon query informed that for Rs.1,000/-, he was carrying the material given to him by one Saheb Yadav of Nepal which was to be handed over to one Lakhsman Sharma at Raxaul. The accused was arrested and handed over to the NCB, Patna which came from Patna. The seized material was sent to the Malkhana and on the order of the court, the samples were sent to the Central Revenues Control Laboratory, Kolkata for its examination.

6. The Police thereafter submitted charge-sheet on 26.10.2018, the charges were framed on 05.11.2018 under section 20(b)(ii)(C) 23c and 29 of ‘the NDPS Act’. As the appellant claimed himself to be he claimed innocent, the trial.

7. The prosecution side produced the following witnesses to prove its case:

PW-1- Raj Kumar Kumawat

PW-2,- Anil Kumar Prasad (Informant)

PW-3, Prem Kumar Yadav (Independent witness)

PW-4- Sushil Yadav (Independent witness)

PW-5- Ashok Kumar Rai

PW-6- Rajan Kumar

8. The exhibits that were produced before the court is/are as follows:

9. PW-1 is the Assistant Commandant, SSB, Raj Kumar Kumawat. According to him, he was posted at Inerwa as Company Commander when he got information that near pillar no.413, Narcotic materials are to be smuggled from Nepal to India. Accordingly, a team was created and stationed near pillar no. 413. Two persons were found coming towards India. When they were asked to stop, one escaped to Nepal while the appellant was apprehended. In the presence of two independent witnesses Prem Kumar Yadav and Sushil Yadav of Babhnauli Village, a search took place and 4.5 Kilogram ‘Charas’ recovered/seized. The samples were taken out, the seizure list were signed by the independent witnesses and accordingly, the process was completed.

10. In his cross-examination, t