Case Background
This case arises out of Raxaul P.S. Case No. 92 of 2012, East Champaran, which was registered under Sections 20, 22, 23 and 24 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
According to the prosecution, on 24.04.2012 at about 1:00 p.m., an SSB team led by Lans Nayak David Sonowal was patrolling near the Indo-Nepal border. He claimed to have received secret information about movement of contraband from Nepal. After informing his Company Commander and obtaining permission, the team started surveillance in the border area.
At about 4:30 p.m., they allegedly saw one person coming from Birganj towards Ahirwa Tola. When he was asked to stop, he tried to run away but was caught. On questioning, he disclosed his name as Lakshaman Mahto of Birganj, Nepal.
The informant stated that in presence of two local witnesses, Nandu Yadav and Ram Balak Paswan, a personal search of the man was conducted. From his right thigh, five yellow packets were allegedly recovered. On inquiry, the man allegedly admitted that the packets contained charas belonging to him, which he used to sell in Raxaul. A drug detection kit test allegedly showed the contents to be charas.
A seizure list was said to have been prepared at the spot. The man and the seized substance, allegedly weighing 2.5 kg, were then produced before the Station House Officer (SHO), Raxaul. On this information, the police registered Raxaul P.S. Case No. 92 of 2012 and started investigation.
After investigation, charge-sheet was submitted and cognizance taken. The trial court framed charges under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act. The accused pleaded not guilty and faced trial in NDPS Case No. 48 of 2012 before the 1st Additional Sessions Judge-cum-Special Judge, East Champaran, Motihari.
Seven witnesses were examined for the prosecution, all of them official witnesses — SSB personnel and the Investigating Officer. No defence evidence was led. On 27.02.2016, the trial court convicted the appellant under both Sections 20(b)(ii)(C) and 23(c) of the NDPS Act, sentencing him on 29.02.2016 to rigorous imprisonment of 11 years and fine of Rs. 1,10,000/- under Section 20(b)(ii)(C) and 10 years and fine of Rs. 1,00,000/- under Section 23(c), with default sentences, both to run concurrently.
The appellant challenged this conviction and sentence before the Patna High Court in Criminal Appeal (DB) No. 338 of 2016.
What the Court Examined and Decided
The Division Bench of the Patna High Court (Hon’ble Mr. Justice Ashwani Kumar Singh and Hon’ble Mr. Justice Rajeev Ranjan Prasad) heard arguments from both sides through video conferencing.
The appellant’s counsel attacked the conviction mainly on four grounds:
First, that mandatory safeguards under Sections 50, 52-A and 55 of the NDPS Act were ignored.
Second, that the seized goods were neither sealed nor properly marked at the spot, and were not produced before the trial court, raising doubt whether the same substance was ever tested or preserved.
Third, that the seizure witnesses named in the FIR, Nandu Yadav and Ram Balak Paswan, were never examined and not even listed as witnesses in the charge-sheet.
Fourth, that the Forensic Science Laboratory (FSL) report was taken on record without following law: it was not proved through any witness, not supplied to the accused under Section 207 CrPC, and the person who allegedly carried the sample to FSL was not examined. It was also argued that the accused was not properly questioned under Section 313 CrPC.
The State argued that the SSB witnesses consistently supported the prosecution version, that the drug detection kit and FSL report confirmed the substance as charas, and that minor contradictions in official testimony could not demolish the case.
The High Court closely examined the oral evidence, documentary exhibits and legal requirements under the NDPS Act.
Non-compliance with Section 50 NDPS Act
Section 50 requires that when a person is to be personally searched, he must be informed of his right to be searched before a Gazetted Officer or Magistrate. The prosecution case itself was that the five packets of charas were recovered from the body (right thigh) of the accused, so Section 50 clearly applied.
PW1, the informant, admitted in cross-examination that he was not aware of Section 50 and that all proformas, including the notice under Section 50, were downloaded and printed at the Company Headquarters after the event, and then signatures of the accused and witnesses were taken. From this, the High Court concluded that the accused was never actually informed of his right at the time of search.
Relying on State of Punjab v. Baldev Singh (1999) 6 SCC 172 and the Constitution Bench judgment in Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609, the Court reiterated that Section 50 is mandatory and strict compliance is necessary. Failure renders the recovery illegal and vitiates conviction if based solely on such recovery.
On this ground alone, the Court held, the appellant was entitled to succeed. However, it went on to examine other serious lapses.
Failure to examine seizure witnesses
The prosecution claimed that two independent locals, Nandu Yadav and Ram Balak Paswan, were present and had witnessed the search and seizure. Yet, during trial, these persons were not examined. Even more significantly, their names did not appear in the list of witnesses attached to the charge-sheet.
In such a situation, the Court found the claim that seizure took place in presence of independent witnesses to be doubtful. The entire case thus rested only on official witnesses.
Improper sampling, sealing and custody of seized substance
The High Court then turned to how the alleged contraband was handled. Evidence of the SSB witnesses and the Investigating Officer showed that almost all formalities, except preparation of seizure list, were carried out at the Company Headquarters, not at the place where the accused was caught.
There was no evidence that the packets were sealed at the spot or at any time in the manner required. The Investigating Officer (PW7) admitted that the seized substance was handed to him in a polythene, kept in an almirah at the police station, not in the malkhana, because the malkhana in-charge was on leave. The key of the almirah remained with the SHO. No entry was made about putting any marks on the seized substance in the case diary.
The officer further admitted that an order of the Special Judge dated 27.04.2012, authorising a Magistrate to oversee sampling and sealing, was received by him on 05.05.2012. Yet, the contraband was produced before the Magistrate only on 05.07.2012, two months later. At that time, 30 grams was drawn as sample and sealed.
The Court noted that Standing Instruction No. 1 of 1988 issued by the Narcotics Control Bureau under Section 52 NDPS Act prescribes detailed procedure for numbering, weighing, sampling and sealing seized narcotic drugs. Clauses 1.4, 1.5, 1.6 and 1.9, quoted in the judgment, require:
• serial numbering and marking of each packet, with weight and details recorded;
• drawing duplicate samples at the spot of recovery in presence of the accused and panch witnesses;
• drawing specified quantities (24 gm for charas) after making the seized material homogeneous; and
• sealing samples in presence of accused, witnesses and seizing officer, all of whom must sign.
From the evidence, the Court found that none of these safeguards were followed. Samples were not drawn at the spot, packets were not properly sealed or numbered, contents were not shown to be mixed to make them homogeneous, and the sample was not sealed in presence of the accused or seizure witnesses.
The Court relied on Supreme Court decisions in Khet Singh v. Union of India (AIR 2002 SC 1450), Noor Aga v. State of Punjab (2008) 16 SCC 417, and Union of India v. Bal Mukund (2012) 9 SCC 161, which emphasise that such standing instructions, though initially administrative, are mandatory in nature and substantial compliance is essential to preserve the sanctity of physical evidence in NDPS cases. Non-compliance justifies drawing adverse inference against the prosecution.
Here, the Court held, there was clear non-compliance. Because the contraband was left unsealed in an almirah with the key held by the SHO, there was no assurance that the same material was later produced before the Magistrate or from where the sample was drawn. Thus, the identity and integrity of the alleged charas was not proved.
FSL report not properly proved
The prosecution relied on an FSL report dated 31.08.2012 (Exhibit 6) from Forensic Science Laboratory, Patna, which stated that a dark greenish solid substance in a small tin box was charas.
The High Court observed several defects:
• The chaukidar who allegedly carried the sample to the FSL was not examined.
• There was no evidence in the record that the sample sent to the FSL actually came from the alleged seized packets.
• The FSL report was taken into evidence without any witness formally proving it.
• A copy of this report was never given to the accused as required by Section 207 CrPC, nor was it put to him during his Section 313 examination.
None of the prosecution witnesses even referred to the FSL report in their testimony. In these circumstances, the Court held that no reliance could be placed on the report to support the prosecution version.
Non-production of seized material before the court
The Court also noted that the actual seized charas was never produced before the trial court. There was no proof that it had been disposed of as per Section 52-A NDPS Act, which mandates preparation of inventory, photographs, and certified samples before a Magistrate. Since neither disposal as per law nor production in court was shown, the Court could not accept that any genuine seizure was made.
Referring to Supreme Court decisions in Jitendra v. State of M.P. (2004) 10 SCC 562 and Vijay Jain v. State of M.P. (2013) 14 SCC 527, the Court recalled that in serious NDPS cases, non-production of seized material and failure to explain that absence is a major defect. Oral evidence and seizure memos alone are insufficient.
Defective examination under Section 313 CrPC
The High Court expressed strong displeasure at the way the trial court recorded the statement of the accused under Section 313 CrPC. Only one broad question was put to him, simply stating that five packets of charas were recovered from him on a particular date and place.
Crucial incriminating circumstances — such as preparation of seizure memo, storage in the almirah, drawing and sealing of sample, sending to FSL, and the FSL report allegedly confirming charas — were never put to the accused. Therefore, he had no chance to explain or contest them.
The Court held that such omission is an illegality. Circumstances not put to the accused under Section 313 cannot be used against him for conviction.
Overall assessment and final decision
After reviewing all these aspects, the High Court found that the investigation was perfunctory and riddled with serious, not minor, defects. These went to the root of the prosecution case, especially the identity of the alleged charas and the fairness of the process.
The Court highlighted that even PW1, the informant, admitted that the seized article was found from the field, and PW5 admitted that the appellant was not searched by any SSB jawan or officer. Combined with the absence of independent witnesses, procedural violations under the NDPS Act, mishandling of seized material, improper proof of the FSL report, and defective Section 313 questioning, the Court held that the prosecution had failed to prove its case beyond reasonable doubt.
Accordingly, the appeal was allowed. The judgment of conviction dated 27.02.2016 and sentence dated 29.02.2016 in NDPS Case No. 48 of 2012 were set aside. The appellant was acquitted of all charges and directed to be released forthwith, unless required in any other case.
Why This Judgment Matters
This Patna High Court judgment is important for anyone facing NDPS charges, and for law enforcement agencies as well. It shows that courts will not uphold a conviction merely because officers say they found drugs on someone.
The Court made it clear that strict rules in the NDPS Act and standing instructions are there to protect against false implication and to ensure that seized contraband is genuine and not tampered with. If officers skip steps like informing the person of his rights, sealing packets on the spot, drawing samples properly, keeping drugs in safe custody, producing them in court, and fairly questioning the accused, the entire case can collapse.
The judgment also reinforces that accused persons must be given a real chance to defend themselves through proper supply of documents and proper questioning under Section 313 CrPC. This benefits not only the accused in this case but also others who may be stopped at borders or highways and accused of drug offences.
For investigating agencies, the decision is a reminder that NDPS cases require higher care. Convictions can be lost if basic procedures are ignored. For ordinary citizens, especially cross-border workers and travellers, it sends a message that higher courts do scrutinise NDPS cases very strictly.
Legal Issues and Answers
-
Issue: Whether the alleged recovery of 2.5 kg of charas from the appellant’s person could sustain conviction under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act when Section 50 safeguards were not followed.
Answer: No. The Court held that the accused was never informed of his right to be searched before a Gazetted Officer or Magistrate. Non-compliance with mandatory Section 50 rendered the recovery illegal and vitiated the conviction. -
Issue: Whether the prosecution proved safe custody, sampling, testing and identity of the seized contraband beyond reasonable doubt.
Answer: No. The Court found that seized packets were neither properly sealed nor stored, samples were not drawn as per Standing Instruction No. 1 of 1988, the FSL report was not duly proved, the seized material was not produced in court, and Section 52-A procedure was not followed. Hence, identity and integrity of the alleged charas were not established. -
Issue: Whether the overall trial, including Section 313 CrPC examination, met the requirements of fair criminal procedure in an NDPS case.
Answer: No. The Court held that only one vague question was put under Section 313 CrPC, and crucial incriminating circumstances were never put to the appellant. These circumstances could not be used against him, further undermining the conviction.
Cases Cited by the Court
- State of Punjab v. Baldev Singh, (1999) 6 SCC 172
- Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609
- Khet Singh v. Union of India, AIR 2002 SC 1450
- Noor Aga v. State of Punjab, (2008) 16 SCC 417
- Union of India v. Bal Mukund and others, (2012) 9 SCC 161
- Jitendra and Another v. State of M.P., (2004) 10 SCC 562
- Vijay Jain v. State of Madhya Pradesh, (2013) 14 SCC 527
- State of Kerala & Ors. v. Kurian Abraham (P) Ltd. & Anr., (2008) 3 SCC 582
- Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1
Case Details
Case Number: Criminal Appeal (DB) No. 338 of 2016; arising out of Raxaul P.S. Case No. 92 of 2012; NDPS Case No. 48 of 2012
Case Title: Lakshaman Mahto v. The State of Bihar through Lans Nayak G.D. Devid Sonewal, 13th B.N. SSB, D Coy
Citation: 2022 (2) PLJR 224
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Ashwani Kumar Singh; Hon’ble Mr. Justice Rajeev Ranjan Prasad
Date of Judgment: 11.02.2022 (uploaded on 07.03.2022)
Advocates: Mr. Shri Prakash Tiwari, Advocate for the appellant; Mr. Ajay Mishra, Additional Public Prosecutor for the State
Nature of Case: Criminal appeal (Division Bench) against conviction and sentence under Sections 20(b)(ii)(C) and 23(c) of the NDPS Act passed by the 1st Additional Sessions Judge-cum-Special Judge, East Champaran, Motihari
Result: Appeal allowed; conviction and sentence set aside; appellant acquitted and ordered to be released unless required in any other case
Link to Judgment: Click here to read the full Patna High Court judgment
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