Non-compliance with statutory provisions under the N.D.P.S. Act invalidates seizure and conviction.

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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE PRAVEEN KUMAR ORAL ORDER (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

5 29-01-2026 Re : I.A. No. 02 of 2025 Heard learned counsel for the appellant and Mr. Ajay Mishra, learned counsel for the Union of India, who is representing the Narcotic Control Bureau on this interlocutory application seeking suspension of sentence and release on bail to the appellant during pendency of the appeal.

2. It has been pointed out that similar prayer has been made in the memorandum of appeal also.

3. Lower Court records have been placed before this Court.

4. The appellant has been convicted vide judgment dated 08.04.2025 and sentenced vide order dated 16.04.2025 in Sessions Trial No. 43 of 2018 arising out of N.C.B. Case No. 16 of 2018 passed by learned Exclusive Special Judge, N.D.P.S., Bettiah, West Champaran, for the offence punishable under Sections 20(b)(ii)(c) and 23(c) of the N.D.P.S. Act and has been ordered to undergo rigorous imprisonment for 15 years and a fine of Rs. 1,50,000/- for the offence under Section 20(b)(ii)(c) of the N.D.P.S. Act and in default of payment of fine, he shall further undergo simple imprisonment for one year.

5. As per the prosecution case, on 27.03.2018, the police, on a tip-off trade of illicit narcotic substance, rushed near Boarder Pillar no. 411/56 from Purushottampur Village and intercepted a person with motorcycle near the canal bridge in India approximately 50 meters from the Boarder Pillar no. 411/56. On being asked, he disclosed his name as Laddo Baitha (appellant), thereafter, a search was made. During search, 4 kg of charas like substance was found in eight plastic bag from the possession of the appellant. It is further alleged that the appellant confessed that he had brought the said contraband from Nepal. Accordingly, the seizure list was prepared. 6. Learned counsel for the appellant submits that on a bare perusal of the deposition of the prosecution witnesses, it would appear that the alleged 4 kg of charas has been recovered from the body of the appellant but there is no compliance of Section 50 of the NDPS Act. Attention of this Court has been drawn towards paragraph no. 11 of the deposition of the PW-1 who has submitted that whatever action was taken, the same was in the office only and there was no independent person at the time of recording of the confession of the accused. 7. Learned counsel further submits that in this case not only there is violation of Section 50 of the NDPS Act, even the seizure list witnesses have not been examined and there is no compliance with Section 42 of the NDPS Act.

8. It is further submitted that the appellant has remained in incarceration for about seven years ten months which is much more than half of the sentence awarded to the appellant, however, this appeal has not yet been listed for hearing and this appeal being of the year 2025 is not likely to be heard in near future, hence the appellant deserves privilege of suspension of sentence and release on bail during pendency of the appeal.

9. Mr. Ajay Mishra, learned counsel for the Narcotic Control Bureau has not contested the submission of the appellant that in this case the recovery is from the body of the appellant, however, the recovery has not been made in presence of the Magistrate, further it is also not disputed that the seizure list witnesses have not been examined in this case.

10. Having regard to the submissions noted hereinabove and the material which we have prima facie gone through, taking note of the fact that no action of seizure has taken place at the spot and the seizure list witnesses have not been examined and further that there is no compliance with Section 42 and Section 50 of the NDPS Act and the appellant has already remained in incarceration of about seven years and ten months but this appeal is not likely to be heard in near future, we direc