Justices Rajeev Ranjan Prasad, Soni Shrivastava set aside judgement by Exclusive Special Judge-II (NDPS), Muzaffarpur in a NDPS case from 2003

In Surendra Prasad vs. The Union of India through Custom Commissioner, Muzaffarpur (2026), Patna and Dilip Kumar Sah vs. The Union of India through DRI, Muzaffarpur (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Soni Shrivastava delivered a 42-page long judgement dated April 2, 2026, wherein, it set aside the judgement of conviction dated June 27, 2024 and the order of sentencing dated July 1, 2024 delivered by Exclusive Special Judge-II (NDPS), Muzaffarpur. The High Court's judgement was authored by Justice Prasad. 

The concluding paragraph of the judgement reads:"50. We observe that Panchnama (Exhibit ‘3’) in itself cannot be taken as a piece of evidence to prove the prosecution case. The contents of the Panchnama were required to be proved by the prosecution through cogent oral as well as documentary evidence. The prosecutor cannot be allowed to become a judge in his own case, therefore, it was incumbent upon the prosecution to discharge their burden beyond all reasonable doubts. We have no iota of doubt that the accused persons in this case laid down sufficient foundation to create doubt in the prosecution story. 51. In result, we are of the considered opinion that the impugned judgment and order are liable to be set aside and the appellants have made out a case for their acquittal giving them the benefit of doubt. The impugned judgment and order of the learned trial court are hereby set aside. 52. These appeals are allowed. 53. The appellants are in jail, therefore, they shall be released forthwith if not wanted in any other case." 

Both the appeals were preferred for setting aside the judgment of conviction and the order of sentence in a  in a NDPS Case of 2023 which arose out of DRI Case 2003. By the impugned judgment, the appellants were convicted for the offences punishable under Section 20(b)(ii)(c) of the Narcotics Drugs & Psychotropic Substances (NDPS) Act and were ordered to undergo rigorous imprisonment for fifteen years years each with a fine of Rs.50,000/- each under Section 20(b)(ii)(c) of the NDPS Act.

The prosecution is that the complainant, who was an Intelligence Officer at Directorate of Revenue Intelligence, Muzaffarpur, had alleged that on November 16, 2003 on the basis of specific information, he had intercepted one truck bearing Registration No. WB-25-2127 along with occupant of the truck, namely, Loki Rai and Dilip Kumar Sah at Chandani Chowk, Muzaffarpur. On search, in presence of independent witnesses, 28 bags or 56 packets of Ganja weighing 539 kgs (gross weight) or 525 kgs (Net Weight) was recovered from the truck which was concealed below the consignment of 64 bags of cattle feed. The recovered 525 kgs of Ganja and the Truck, which was used as mode of conveyance for transportation of Ganja, were seized under Section 42(c) of the NDPS Act. 

The 64 bags of cattle feed used for concealment of Ganja was also seized. It was also alleged that these accused persons in their voluntary statement tendered before the independent witnesses admitted their guilt as regards their conscious involvement in trafficking of Nepali Ganja. They also stated that the Ganja was loaded on the truck at Laxmipur, Raxaul, Bihar in their conscious knowledge by the person, namely, Surendra Ji of Durga Transport and Yugal Mistry near Sona Cinema, Raxaul and the Ganja was to be delivered at Fatuha to a person, namely, Ram Prawesh at Fatuha Danapur. They could not disclose the complete address of the said Ram Parwesh and stated that they had to park the vehicle near Kacchi Dargan at Fatuha and had to deliver Ganja to the agent of Ram Prawesh on the direction of Yugal Mistri. They also stated that they were carrying Ganja from Raxual to Fatuha consciously for transportation charges of Rs.15,000/-. These named accused persons were arrested and forwarded to judicial custody on November 17, 2003. 

It was further alleged that in course of follow up action, the accused Surendra Prasad was apprehended and subsequently arrested on November 18, 2003 and forwarded to judicial custody on November 19, 2003 for associating in trafficking of Ganja. It was also stated that the seized ganja was sent for chemical analysis to the Central Revenue Control Laboratory wherein it was reported by the Chemical Examiner, C.R.C.L. New Delhi, vide end F.N.-1/ND/R/2003-CLD-299(N)/24.11.2003 dated 24.11.2002 that the same is “Ganja” within the meaning of NDPS. It was stated that in course of inquiry/investigation conducted, the accusation against (i) Loki Rai and (ii) Dilip Kumar Sah, the accused persons, who were members of big smuggler syndicate operating from Nepal and indulged in smuggling of Nepali ganja into India, were fully established. Further from the statement of the accused Loki Rai, it appeared that the accused Surendra Prasad, was also involved in the case.

The trial court took cognizance of the offences under Sections 20, 23 and 25 of the NDPS Act agaisnt (1) Loki Rai, (2) Dilip Kumar Sah and (3) Surendra Prasad vide order dated February 27, 2004. Thereafter, vide order dated October 26, 2009, records of the accused Loki Rai was split off. Charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. Accordingly, vide order dated September 12, 2012, charges were framed against (1) Dilip Kumar Sah and (2) Surendra Prasad under Sections 20(b)(ii)(c), 23 and 25 of the NDPS Act. In course of trial, the prosecution examined as many as three witnesses and exhibited several documentary evidences.. Thereafter, the statements of the appellants were recorded under Section 313 of the CrPC in which they denied the allegations and pleaded innocence.

The trial court held that the prosecution had proved the charge under Section 20(b)(ii)c of the NDPS Act
against these appellants beyond all reasonable doubts, however, prosecution has failed to prove the charges under Sections 23 and 25 of the NDPS Act. Accordingly, the appellants were convicted under Section 20(b)(ii)(c) of the NDPS Act. 

The senior Counsel for the appellants submitted that the case was registered by the DRI on the basis of a search and seizure based on a secret information which was said to have been received by Rajesh Kumar Shrivastav, an Intelligence officer of DRI, the complainant/informant (PW-2). However, there is no compliance with Section 42(2) of the NDPS Act, the very search and seizure procedure has not been conducted in accordance with law. The seizure list witnesses were not produced in course of trial. The Seizing Officer who prepared the test memo only on November 17, 2003 recorded that one sample was prepared on November 16, 2003 and the same was dispatched on November 17, 2003. The statements made in the panchnama that three samples were prepared of 50 gm each stood falsified from the test memo.

The report of the chemical examination was not duly tendered in evidence and the author of the documents did have not come in the doc. Even PW-2 did not tender it in accordance with law, therefore, the very admissibility of Exhibits ‘5’ and ‘6’ was doubtful.

It was also submitted that it would appear from the trial court’s records that on November 17, 2003, the arrest memo, seizure memo, panchnama, voluntary statement, fardbeyan were produced in the trial court. The two arrested accused were also produced who were taken into judicial custody. On that day the I.O. did not produce the samples, if any prepared by him. The I.O. did not produce the test memo (Exhibit ‘4’) which was said to have been prepared by him on November 17, 2003. No inventory was prepared and produced. The I.O. did not seek any permission from the trial court to send the samples of ganja prepared by him to a designated forensic science laboratory.

He further submitted that the I.O. filed the application in the trial court for appointment of a Magistrate for certification of inventory and drawal of samples. From Exhibit ‘6’ which is the certification paper bearing signature of the Judicial Magistrate, Muzaffarpur, it would appear that a formal certification was done by the Magistrate on December 13, 2004. In the column showing description of goods, ganja was shown with a quantity of 56 packets for 525 kg clearly suggesting that no sample was prepared out of the ganja produced before the Magistrate for certification. This would create doubt over the sanctity of the document (Exhibit ‘6’). The Magistrate was not examined. Had the I.O. (PW-2) prepared the sample on November 16, 2003 by taking 50 gm from 3 different packets, the weight of the ganja could not have remained the same as stated in Exhibit ‘6’.

It was submitted that the very preparation of the sample of ganja was highly doubtful. Samples were taken only from three packets. It was not prepared in presence of the accused in terms of the Standing Order No. 1 of 1988 dated March 15, 1988. The test memo did not bear any signature of the forwarding officer. The Exhibit ‘5’ showed that date of receipt of ganja in laboratory is November 24, 2003 but the quantity received in the laboratory was said to be 32.7 gm only. Who took the samples to the laboratory was not known. 

It was submitted that in this case, even as the certificate issued by the Magistrate (Exhibit ‘6’) showed that the representative sample was drawn, no representative sample was produced before the trial court either for sending the same to the FSL or as material exhibit after destruction of the ganja in terms of Section 52A of the NDPS Act. This creates huge doubt over the mandatory compliance with the provisions of law which are in the nature of safeguards provided to the accused.

Reliance was placed on the judgment of the Supreme Court in Surepally Srinivas vs. The State of Andhra Pradesh (now State of Telangana) reported in 2025 SCC OnLine SC 683 and the judgments of the Patna High Court in the case of Aslam Ansari vs. The State of Bihar and Another in Criminal Appeal (DB) No. 137 of 2023, Lakshaman Mahto vs. The State of Bihar in Criminal Appeal (DB) No. 338 of 2016.

Justice Prasad observed:"....this Court finds that the search and seizure of the truck and the contraband in question was conducted on the basis of a prior secret information that one truck bearing Registration No. WB-25-2127 was coming with some cattle feeds beneath which ganja has been concealed. Rakesh Ranjan (PW-1), who was posted as Intelligence Officer in DRI, Muzaffarpur on 16.11.2003, was a member of the team which had chased the truck, stopped it and had participated in the search, seizure and sampling procedure. He has stated in his evidence that the secret information was recorded by R.K. Shrivastava in DRI-I. R.K. Shrivastava has been examined in this case as PW-2. In his examination-in-chief, he has not stated that he had recorded the secret information. This DRI-1 has not been produced by the prosecution. In the kind of the evidence on this aspect of the matter, the submission of learned Senior Counsel for the appellants that there is non-observance with the mandate of Section 42(2) of the NDPS Act, is correct." 

Justice Prasad referred to the decision in Karnail Singh vs. State of Haryana reported in (2009) 8 SCC 539, wherein, the Supreme Court held as under:
“35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513: 2000 SCC (Cri) 496 did not require literal compliance with the requirements of Sections 42(1) and 42(2 nor did Sajan Abraham v. State of Kerala, (2001) 6 SCC 692: 2001 SCC (Cri) 1217 hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the
recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. 
(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42.
To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer  does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.”

The decision in Karnail Singh's case has been discussed by the Supreme Court in Darshan Singh vs. State of Haryana reported in (2016) 14 SCC 358. Paragraphs ‘13’ to ‘15’ of the said judgment reads: “13. Having given our thoughtful consideration to the submission advanced at the hands of the learned counsel for the respondent, we are of the view that the mandate contained in Section 42(1) of the NDPS Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Criminal Procedure Code. Sub-section (1) of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issuance of authorisation for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Sub-section (1) of Section 42 of the NDPS Act lays down that the empowered officer if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance with one, would not infer compliance with the other. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh case and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Criminal Procedure Code. 14. In the above view of the matter, it is not possible for us to accept the submission of the learned counsel for the respondent State that the registration of the first information report at the hands of the Station House Officer, Police Station Shahar, Panipat and its communication to the Superintendent of Police, Panipat would constitute sufficient compliance with the mandate of Section 42 of the NDPS Act. 15. In the aforesaid view of the matter, we are satisfied that Section 42 of the NDPS Act was not complied with at all, insofar as the present controversy is concerned. Thus viewed, Conclusion (d) recorded in para 35 of the judgment rendered in Karnail Singh case2 would fully apply to the facts and circumstances of the present case, and we are left with no other option, but to set aside the conviction and the sentence of imprisonment of the appellant-accused Darshan Singh. Ordered accordingly. The appeal stands allowed.”

Drawing on the Supreme Court's decision, Justice Prasad observed: "30. In the facts of the present case, this Court would record that there is no compliance with the requirements of Section 42(1) and 42(2) of the NDPS Act. 31. It is further found from the evidence that the search of the truck was conducted in presence of two witnesses, namely Sudhir Kumar and Nagendra Chaudhary, who were the residents under Brahmpur Police Station in the district of Muzaffarpur, their complete address is not available in the seizure list and they have not been examined in course of trial. No plausible explanation has been furnished by the prosecution for non-examination of the two seizure-list witnesses. The seizure memo (Exhibit ‘1’) shows the place of seizure “Muzaffarpur, Bihar”. PW-2 admits it. Thus, it is evident that the actual place where truck was stopped and search was conducted has not been recorded by the seizing officer. As per the complainant (PW-2), 56 packets kept in 28 sacks were recovered from the truck and these packets were containing ganja. In his examination-in-chief, PW-2 has stated that at the time of seizure, no one else was there. He has stated that from the seized ganja, three samples of 50-50 gram were taken out and the samples were kept in a yellow colour plastic on which he, the two accused Lauki Rai and Dilip Kumar Sah and the two independent witnesses had put their signature. He has admitted in the cross-examination in paragraph ‘11’ that he had opened two packets of ganja and had taken out the sample. It is, thus, evident from the deposition of the complainant (PW-2) that the samples were not taken from all the packets. In this regard, the submission of learned Senior Counsel for the appellants that the sampling was not done in accordance with the Standing Order No. 1 of 1989 dated 13th June, 1989 issued
by the Anti-Smuggling Unit, Department of Revenue, Ministry of Finance, appears correct." 

Clause 2.2 of the Standing Order reads:- “2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the
panchnama drawn on the spot.”

In Noor Aga vs. State of Punjab reported in (2008) 16 SCC 417, the Standing Order came for consideration before the Supreme Court. It has been held that the guidelines mentioned in the said Standing Order should not only be substantively complied with, but in a case involving penal proceedings, the rigours of such guidelines may be insisted upon. 

Justice Prasad recorded: "Here, it is worth mentioning that in this case even though PW-2 claims to have prepared three samples of 50 gram each out of two packets only, he had not produced the samples in the court and had not sought any direction for sending the sample to the designated laboratory. In paragraph ‘17’, PW-2 has stated that the seized ganja was not produced in the court. In paragraph ‘18’, he admits that no prior permission was obtained for sending the sample for examination. PW-2 has stated in paragraph ‘24’ of his deposition that he had seized 525 kg of ganja and the committee had destroyed the same. The defence suggested to this witness that if 525 kg of ganja was seized and the same has been destroyed, it means no sample was taken out. PW-2 denied the suggestion, but at this stage when this Court goes through the trial court’s records, it is found that the prosecution has brought on record page no. 43, serial no. 2 of Godown Entry Register (Exhibit ‘9’) to show that ganja was kept in the godown vide entry no. 2. The quantity of ganja is being shown as 525 kg in 25 bags. The prosecution case is that ganja seized were 56 packets in 28 bags/sacks, therefore, there is not only a difference in respect of the bags shown in the godown register (Exhibit ‘9’), the quantity shown being 525 kg would create a huge doubt as to whether three samples of 50 gram each were taken out."

The test memo (Exhibit ‘4’) was prepared on November 17, 2003 by R.K. Shrivastava (PW-2). In column ‘4’, the date and place of seizure was shown as “16.11.2003 Muzaffarpur”. In column ‘5’, date of drawal and dispatch of sample has been shown as “16.11.2003 and 17.11.2003”. In column ‘6’, number of sample and marking on each of them for identification has been shown as “One, sealed with the seal of “Directorate of Revenue Intelligence”.” From the test memo (Exhibit ‘4’), it is evident that only one sample of 50 gram (approx) has been shown, which was sealed with the seal of the Directorate of Revenue, Intelligence. The date of drawal of the sample is 16.11.2003, but the sample drawn and sealed by PW-2 on 16.11.2003 was not produced in the court with the other documents on 17.11.2003. 

According to PW-2, the dispatch of sample was made on 17.11.2003, admittedly, no prior order was obtained from the court for sending the sample to a designated laboratory. PW-2 claimed in his deposition that samples were prepared in presence of the accused, but there is no evidence of preparation of samples in the presence of the accused, which is again in violation of the provisions of the Standing Order and the judgment of the Hon’ble Supreme Court in the case of Bharat Aambale (supra). 

In the latter part of the test memo (Section-II) which is meant for use in the laboratory, the date of receipt in the laboratory is 24.11.2003 and the net weight found in the laboratory as shown is 32.7 gm. This part (Section-II) has been shown signed by a Chemical Examiner and an Analyst. This was marked Exhibit ‘5’, at the instance of the complainant (PW-2). On perusal of Exhibit ‘4’ and Exhibit ‘5’ together, it appears that while PW-2 was shown preparation of a sample of 50 gram on 16.11.2003 and dispatched the same to the laboratory on 17.11.2003, the same was received in the laboratory on 24.11.2003. What was the mode of dispatch, whether it was sent through any special messenger is not evident from the deposition of PW-2. The net weight found in the laboratory was 32.7 gram, whereas the sample prepared is said to be of 50 grams (approx). Here, this Court finds that the seizing officer has, while filling up Exhibit ‘4’, recorded the quantity of sample as “50 gram (approx)”, it means he was only tentative with regard to the weight of the sample. His approximate weight shown in Exhibit ‘4’ is not correct as per the information furnished in
Exhibit ‘5’. This would create huge doubt over the sampling procedure. We have already mentioned hereinabove that PW-2 claimed that he had prepared three samples, what happened to the other two samples is not known. 

We further find that Exhibit ‘5’
has been proved by the complainant (PW-2) in course of his
deposition. He has stated that the test report had come to him from
the laboratory. PW-2 has not even mentioned who is the author of
Exhibit ‘5’ and by what mode he had received the test report
(Exhibit ‘5’). PW-2 has admitted in paragraph ‘23’ of his
deposition that he had not mentioned about taking out of sample in
the seizure list. The defence has suggested that the fact that 525 kg
of ganja was seized and the same quantity was destroyed only
shows that no sample was taken out. Although, the complainant
(PW-2) has denied this suggestion but to this Court it appears that
the defence has been able to create doubt in the prosecution case.
The Inspector-cum-Godown In-charge (PW-3), who has proved
the entry in the godown register (Exhibit 9), has stated that the
seized articles were entered in the register of the year 2004-2005 at
page no. 43 at serial no. 2. He has stated that in this case on
13.12.2004, in presence of the learned Judicial Magistrate, First
Class, Muzaffarpur, sample was taken out. He produced the
envelope (Material Exhibit No. ‘1’). On perusal thereof, we do not
find any seal and signature. In his cross-examination, this witness
has admitted that in the godown entry, there is no mention that
sample was taken out. He has admitted that on the envelope there
is no signature of any of the accused or the witnesses and on the
envelope there is no mention of the weight. 

Justice Prasad recorded:"...this Court finds that the ganja which was seized on 16.11.2003 was neither produced in the court nor any permission was taken from the court to keep the ganja in a designated godown. Only in the year 2004-2005 register, an entry has been produced to show that the ganja was kept in the godown but the chain of possession of the ganja, where those were kept during all this period from 16.11.2003, has not been established by the prosecution.

35. So far as the evidence against Surendra Prasad
(appellant in Criminal Appeal (DB) No. 1013 of 2024) is
concerned, it is the statement of the complainant (PW-2) that
Surendra Prasad was not present at the place of occurrence, he was
not explained the ramification of the statement under Section 67
and PW-2 had not given any certificate that his statement may go
against him. He had not seized anything from the possession of
this appellant. PW-2 has stated in paragraph ‘15’ of his deposition
that he had recorded statement of the arrested persons under
Section 67 in the DRI Office, Muzaffarpur. Dilip Shah had stated
that ganja was loaded near Laxmipur Raxaul by Surendra
Transport. Dilip Shah had not said that who were the persons who
got loaded the ganja and he had not stated about the charges for
transportation. It is evident that the implication of this appellant is
solely on the basis of the vague statement of Dilip Kumar Shah.
PW-2 himself says that Dilip Kumar Shah had stated about a
person named Surendra Kumar, but he admits in paragraph ‘21’
that he could not verify the name and address of the persons,
namely Surendra and Jugal Mistry. We are, therefore, of the
opinion that the prosecution has not at all brought any material,
much less reliable piece of evidence, to connect Surendra (the
appellant in Criminal Appeal (DB) No. 1013 of 2024), as the
person who had loaded the ganja.

Justice Prasad referred to the judgment of the Hon’ble Supreme Court in case of Surepally Srinivas (supra) where the Hon’ble Supreme Court has discussed the case of Kashif (supra) and Bharat Aambale (supra). In case of Surepally Srinivas, the Court observed: “13. In Bharat Aambale (supra), this Court held that the purport of Section 52-A, NDPS Act read with Standing Order No. 1/89 extends beyond mere disposal and destruction of seized contraband and serves a broader purpose of strengthening the evidentiary framework under the NDPS Act. This decision stresses upon the fact that what is to be seen is whether there has been substantial compliance with the mandate of Section 52-A and if not, the prosecution must satisfy the court that such non-compliance does not affect its case against the accused. This is also what has been held in Kashif (supra). 

The judgement records that the certificate dated  13.12.2004 (Exhibit ‘6’) showed Godown Entry No. 2/NDPS/04/05 dated 20.07.2004 only demonstrates that from 16.11.2003 to 20.07.2004, the seized contraband was not lying in the godown then a question arises as to in whose custody the contraband was lying during this period. We have already seen that the packets seized were not serially numbered and samples were drawn only from two packets, at no point of time the seized contraband or the samples were produced in the court although the certificate (Exhibit ‘6’), which is prepared in a given format, talks of drawing of representative sample, the statement nowhere shows the quantity of the representative sample drawn, if any, in presence of the Magistrate. The learned Judicial Magistrate seems to have done only a formality in the name of certification, he has not been brought to depose in course of trial.

Justice Prasad noted:"This Court finds that the learned trial court has relied upon the recorded statement of the seizure list witnesses without giving any opportunity to the defence to cross-examine them. This procedure adopted by the learned trial court to rely upon the statement of the seizure list witnesses recorded by the complainant (PW-2) is contrary to the fundamental principles of law in India. The judicial pronouncement on the subject is very clear."

Relying on Supreme Court's decision in Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1, wherein, it discussed the fundamental rights and the NDPS Act, Justice Prasad observed that “the first most important constitutional protection provided in the fundamental rights chapter so far as these cases are concerned is provided by Article 20(3), which is the well-known right against self-incrimination. Article 20(3) reads as follows: “(3) No person accused of any offence shall be compelled to be a witness against himself.” He added:" 48. The majority view has held that the NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21. Several safeguards are contained in the NDPS Act, which is of an extremely drastic and draconian nature. The Hon’ble Apex Court held that the interpretation of a statute like the NDPS Act must be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself and the right to privacy. The Hon’ble Supreme Court discussed the scope of Section 67 of the NDPS Act keeping in view Sections 42 and 53. The case laws on the subject have been reviewed. 

Paragraphs ‘81’ to ‘85’ of the judgment from Tofan Singh (supra) case reads:“81. It is important to remember that an officer in charge of a police station, when he investigates an offence, begins by gathering information, in the course of which he may collect evidence relating to the commission of the offence, which would include search and seizure of things in the course of investigation, to be produced at the trial. Under the scheme of the NDPS Act, it is possible that the same officer who is authorised under Section 42 is also authorised under Section 53. 

Justice Prasad referred to The observations of the Constitution Bench in Mukesh Singh vs. State (NCT of Delhi), (2020) 10 SCC 120 are, therefore, to the effect that the very person who initiates the detection of crime, so to speak, can also investigate into the offence—there being no bar under the NDPS Act for doing so. This is a far cry from saying that the scheme of the NDPS Act leads to the conclusion that a Section 67 confessional statement, being in the course of investigation, would be sufficient to convict a person accused of an offence.”

Supreme Court suspends substantive order of sentence passed by Justice Bibek Chaudhury, vindicates judgement by Justice Ahsanuddin Amanullah

In Aruna Kumari vs. The Economic Offences Unit (2026), Supreme Court's Division Bench of Justices J.B Pardiwala and K.V. Viswanathan passed a 4-page long order dated April 24, 2026, wherein, it observed:"We are taken by surprise that the currency notes got destroyed by rodents. 9. We wonder how many such currency notes recovered in this type of offences get destroyed as they are not kept at a safe place. Its a huge revenue loss for the State. 10. Besides, the explanation offered for the destruction of the currency notes also does not inspire any confidence. 11. We shall look into this issue as and when the main matter is taken up for hearing." The Court had granted exemption to Aruna Kumari, the lady Child Development Programme Officer (CDPO) from surrendering. 

The SLP arose out of 36-page long final judgment dated February 19, 2025 in The Economic Offences Unit Through Superintendent of Police, EOU, Patna, Bihar  (2026) Govt Appeal (SJ) No. 18/2019 passed by Justice Bibek Chaudhury of Patna High Court. The appellant was represented by senior advocate Vishwanath Pd. Singh and advocate Soni Shrivastava. 

The petitioner is a lady. At the relevant point of time she was serving as a CDPO. She was put to trial for the offence punishable under Sections 7 and 13(2) respectively, of the Prevention of Corruption Act, 1988. The Trial Court acquitted the petitioner of all the charges. The department went in appeal before the High Court. Justice Chaudhury had reversed the acquittal and held the petitioner guilty of the alleged offence. He observed:"57. Section 13 (1) (d) speaks about criminal misconduct by public servant if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage or (b) if he intentionally enriches himself illicitly during the period of his office.58. In order to prove the charge under Section 13(1)(d), it is not necessary for the prosecution to prove that the accused demanded illegal gratification." 

The High Court's judgement recorded that the accused was apprehended immediately after she received illegal gratification. The bribe money was recovered from the purse of the accused. Post trap memo has been marked exhibit. From the post trap memo, it is found that when the hands of the accused were washed, the water turned pink as a result of Phenolphthalein powder mixed in the hands of the accused when she received the money and had kept it inside the purse. The purse was also washed and the water turned pink. The said water was seized and forensic report confirms presence of Sodium Carbonate and Phenolphthalein powder in the water. 

Y.V. Giri, the senior advocate for the respondent had submitted thatthe prosecution failed to prove that the accused was given bribe of Rs. 10,000/-, when the de facto complainant herself told that she gave seven numbers of currency notes of Rs. 1,000/- denomination. Thus, the Economic Offence Unit had Rs. 7,000/- in their hand and therefore the story of demand of Rs. 10,000/- does not arise at all. It was for the prosecution to prove that the accused demanded illegal gratification and she accepted the same.  He relied on the Supreme Court's decision in P.S. Rajya vs. State of Bihar, reported in (1996) 9 SCC 1 to submit that when the criminal charge and the charge in disciplinary proceeding which was initiated against the respondents were based on same allegation and same set of evidence and the department proceeding ended in favour of the respondent, criminal charge on the same set of evidence cannot stand. Notably, Aruna Kumari was exonerated in the departmental inquiry. The trial Court too has acquitted her.  

In Raja & Ors. vs. State of Karnataka, reported in (2016) 10 SCC 506, the Supreme Court had occasion to deal with the scope of interference with a judgment of acquittal in view of the ratio laid down in Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. vs. State of Maharashtra, (2010) 13 SCC 657 that if two views are possible, the Appellate Court could not ordinarily interfere therewith though its view may appear to be the more probable one. The appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference. The Appellate Court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any, and significant enough to warrant reversal of the verdict of the Trial Court. 

In Krishan Chander vs. State of Delhi, reported in 2016 (3) SCC 108, Supreme Court has held that demand of illegal gratification is a sine qua non for constitution of an offence under the Prevention of Corruption Act. Mere production of tainted money recovered from the accused along with positive result of phenolphthalein test, sans the proof of demand of bribe, is not enough to establish the guilt of a charge under Section 7 of the Act, made against the accused. 

The High Court observed: "It is immaterial whether it was Rs. 7,000/- or Rs. 10,000/-. The evidence on record unerringly shows that the accused demanded and obtained illegal gratification." 

It is unclear as to how the evidence of demand of Rs 10, 000 was established beyond any reasonable doubt. Was the money to the tune of Rs 10, 000 taken out from the government's treasury for its utilization as tarp money? If Rs 10, 000 was taken for the purpose of trapping the accused, why was only Rs 7, 000 given to her? These questions seem to have have remained unanswered.  

Justice Chaudhury had concluded:"60. On careful perusal of the evidence on record, this Court finds that the prosecution was able to produce satisfactory evidence to prove payment of bribe and to show that the accused has voluntarily accepted the money knowing it to be bribe. Therefore, the learned trial Judge committed error in recording order of acquittal in favour of the accused. 61. In view of the above discussion I hold on careful consideration of evidence on record as well as the submission made by the learned Sr. Counsels for the parties that the appellant has been able to bring home the charge against the accused under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act. 62. In this regard, this Court records that it is immaterial to consider that the accused is entitled to get benefit of doubt on the ground that departmental proceeding against her was dismissed. 63. For the offence punishable under Section 7 of the Prevention of Corruption Act, the respondent shall be punished with imprisonment for a term which shall not be less than three years but which may extend to seven years and was also liable to fine. 64. For the offence punishable under Section 13(1) (d), the respondent shall be punishable with imprisonment for a term which shall not be less than four years but which may extend to 10 years and shall also be liable to fine. 65. The respondent is, therefore, convicted accordingly." 

He relied on Supreme Court's decision in C.K. Damodaran Nair vs. Govt. of India, reported in (1997) 9 SCC 477 to conclude that trial Judge committed error in recording order of acquittal in favour of the accused, but did not refer to the relevant paragraph of the Supreme Court's judgement. 

The Supreme Court's order reads:  "The substantive order of sentence passed by the High Court is ordered to be suspended, and the appellant shall be released on bail subject to terms and conditions that the Trial Court may deem fit to impose. 7. We have also taken notice of something which we should not ignore." 

Supreme Court's order reproduced the High Court's observation in impugned judgment, wherein it observed in paragraph 53 as under:-

“53. P.W. 5 lodged the complaint before the Economic Offence Unit only after she was illegally demanded to pay bribe of a sum of Rs. 10,000/-. It is true that the prosecution failed to produce the currency notes that were seized from the possession of the accused on the ground that the envelop containing seized money was destroyed by rats and rodents. But during trial, P. S. Malkhana register was produced and proved as exhibit. In Malkhana register, receipt of an envelop containing bribe money in connection with the instant case was duly recorded. Thus, there is no doubt that seized money was produced in Malkhana register but as a result of improper condition of Malkhana and lack of up to date preservation system, the envelop along with currency notes were destroyed by rodents. For destruction of the seized money, which was recovered from the possession of the accused, the prosecution case cannot be held to be not proved. In many cases, seized articles may not be produced during trial for one reason or the other. Even the subject matter of offence, sometimes cannot be recovered by the investigating agency in many cases, corpus delicto, is destroyed by the offenders. Even under such circumstances an accused can be convicted if other surrounding circumstances point at the guilt of the accused without any reasonable doubt.” 

It appears strange that the High Court observed that it was immaterial whether there was recovery of Rs. 7,000/- or Rs. 10,000/ given the fact that if Rs 10, 000 was demanded and obtained by the accused, then unless the remaining Rs 3, 000 is traced, conviction of Aruna Kumari cannot be deemed conclusive. The evidence adduced by the witnesses that the black purse which allegedly contained the bribe money, was not produced in Court. It was the case of the prosecution that Rs, 10,000, the seized currency notes were kept in a paper packet in police Malkhana. However, during trial, the seized money could not be produced by the prosecution on the ground that the envelop, containing money, was destroyed by rats and rodents.

Prior to the judgement by Justice Chaudhury, Justice Ahsanuddin Amanullah had passed a 8-page long judgement dated January 23, 2020 upon hearing the appeal against the judgment and order of acquittal dated February 25, 2019 passed by the Special judge, Vigilance (Trap), Patna in Special Case No. 52 of 2014, which arose out of Economic Offences Unit Case No. 31 of 2014 by which Aruna Kumari had been acquitted of charges under Sections 7/13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988.

Justice Amanullah had observed: "6.....the Court finds that the view taken by the Court below cannot be said to be unjustified or perverse. 7. In matters like the present, there is inbuilt protection given to the accused, that is, of the case against the accused being proved beyond reasonable doubt. This is based on the constitutional mandate. The prosecution has to bring home the charges and prove it to the level that the Court finds that such allegation has been proved to a point which would be acceptable to a prudent man. Stricter the law, the requirement of compliance with the procedure prescribed also are to be applied equally strictly while considering such cases. In the present case, the allegation of the opposite party having accepted a bribe, obviously visited her with serious penal consequences and, thus, clearly when a Court of law was called upon to adjudicate the matter arising out of such exercise, it had to be conscious of its responsibility to consider the matter objectively. Perusal of the judgment does not indicate that any issue has been left undiscussed. This objection has also not been raised by learned counsel for the appellant." 

Justice Amanullah added: "8. Coming to the issue of non-production of order constituting the trap team, which is one of the grounds for giving benefit of doubt to the accused (respondent), in the considered opinion of the Court, carries weight. Persons in official capacity are said to have acted to trap a person demanding bribe for acting in official pending matters/proceeding before the officer."

Justice Amanullah observed: "In the present case, the complaint was made by an Anganbari Sevika, that for closing a proceeding against her the accused was demanding a bribe for which complaint was made before the Economic Offences Unit. 9. The first and foremost requirement was to constitute a team to look into the matter. Upon such team being constituted, in accordance with law, by the Competent Authority, members of the team have the jurisdiction to proceed further in the matter of cross checking, preparing pre-trap memo followed by the exercise of actual trap and thereafter followed by a post-trap memo etc. When admittedly, before the Court there was no document to show that the trap team which had conducted the exercise was the team constituted by the Competent Authority to do so, the Court rightly has not gone on the self statement made by the concerned persons that they were members of such trap team. Where law presumes that there are orders on paper with regard to a certain fact, the original or its copies, which are admissible under law, have to be produced before the Court and proved in the manner required in law and only upon the same being done, the Court is required to take cognizance and accept the same. In the present case, when no such document was ever produced before the Court, the doubt with regard to the constitution of a trap team and action of the members who had conducted the exercise becomes open to speculation." 

Justice Amanullah had pointed out that "when the complainant herself during her cross-examination before the Court, has changed her version and the prosecution, had declared her to be hostile and thereafter proceeded to cross examine her, in which also statements contrary to the prosecution case have been made by the complainant, the authenticity and reliability of such witness clearly being doubtful, but necessarily, the benefit has to go to the accused. The Court having done that on this score also, cannot be faulted. Further, the prosecution during trial had produced some torn notes which were alleged to have been seized from the opposite party. The same being few in number, that too, in a torn condition, obviously raises serious doubts with regard to them being the notes which were sized from the possession of the opposite party. This by itself may be sufficient to raise bona fide doubt with regard to the authenticity of the recovery made from the opposite party of the so called bribe money, especially when the independent witnesses of search and seizure were also not examined. 11. Thus, on the basis of a combined effect of the facts and circumstances discussed by the Court below, it coming to the conclusion that reasonable doubts have been created with regard to the prosecution story, for which, in law, the benefit has to accrue to the accused, this Court does not find any error in the same which would require interference."

In his judgement, Justice Amanullah had concluded:"....the Court finds that the delay in filing of the appeal is due to deliberate laches on the part of the appellant which does not persuade the Court to condone such limitation. 16. Accordingly, on the ground of limitation as well as on merits, both Interlocutory Application No. 1 of 2019 as also Government Appeal (SJ) No. 18 of 2019 stand dismissed." Notably, only aodvocate Soni Srivastava had appeared on behalf the appellant, Economic Offences Unit through the Superintendent of Police, EOU, Patna.  

Supreme Court modifies order by Justices P. B. Bajanthri, S. B. Pd. Singh

In State of Bihar & Ors. vs. Akhtar Hussain & Ors. (2026), Supreme Court's Division Bench of Justices Manoj Misra and Manmohan passed a 9-page long order dated April 23, 2026, it concluded:"12. Though, we agree with the submission that merits of an appeal or for that matter of any case is to be considered only if it is presented within the period of limitation or the delay is condoned upon satisfactory explanation for the delay, the fact remains that the Writ Court while passing the order in favour of the private respondents had relied upon an earlier order passed by the said Court. The earlier order of the Court had been categoric, and rightly so, in giving liberty to the appellant to pass a fresh order in accordance with law after giving opportunity of hearing to the party concerned. This right to pass a fresh order, as was saved in the earlier order passed on identical facts, has not been reserved for the appellant in the impugned order passed in the instant case. 13. In such circumstances, when the impugned order of the Writ Court was passed on ground of parity, there was no justification for the Writ Court for not reserving similar liberty to pass a fresh order after giving opportunity for hearing. Therefore, to do complete justice, we are of the view that the order passed by the Writ Court needs modification. We, accordingly, direct that though the order of the Writ Court shall be complied with, however, it shall be open for the appellant to pass a fresh order in accordance with law after giving opportunity of hearing to the parties.

The appeal arose from a 3-page long order dated April 16, 2025 passed by a Division Bench of the High Court. The private respondents herein were appointed/engaged as Shiksha Swayamsevaks under the Talimi Markaz Scheme. Initially appointment/ engagement was for a fixed term which was renewable. It appears that after their initial period of engagement was over, the term was renewed. However, later, their services were dispensed with on the ground that they did not belong to Socially and Educationally Backward Classes of Muslim Community. Aggrieved by dispensation of their services, private respondents invoked writ jurisdiction of the High Court on the ground that their services were dispensed with without giving opportunity of hearing to them.

Earlier, in State of Bihar & Ors. vs. Akhtar Hussain & Ors. (2025), Patna High Court's Division Bench of Justices P. B. Bajanthri and S. B. Pd. Singh had passed a 3-page long order dated April 16, 2025, it concluded:"It is a State LPA, the Hon’ble Supreme Court time and again held that belated litigation on behalf of the State is deprecated. In the State of Madhya Pradesh Vs. Ramkumar Choudhary decided in [SLP (C) Diary No.48636 of 2024] on November 29, 2024 read with H. Guruswamy & Ors. Vs. A. Krishnaiah, reported in 2025 SCC OnLine SC 54 Hon’ble Supreme Court has deprecated in filing belated litigation in particularly State litigation, in fact cost of Rs. 1,000,00/- (Rupees One Lakh) has been imposed in the State of Madhya Pradesh Vs. Ramkumar Choudhary. Taking note of the principal laid down in the aforementioned decisions, the appellant have not made out a case so as to condone the delay of about 1 year and 313 days excluding COVID-19 period of about 11 months. 3. Accordingly, I.A. No. 02 of 2024 stands dismissed. 4. Resultantly, LPA No. 429 of 2022 stands dismissed."

Supreme Court sets aside High Court's order by Justices P. B. Bajanthri, A.K. Pandey for beng contrary to its directions, HC directed to decide civil review in 6 months

In Nand Kishore Chaudhary vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices J.K. Maheshwari and Atul S. Chandurkar passed a 4-page long order dated April 17, 2026, wherein, it concluded:..."it is clear that on filing/remitting the Review, it was required to be decided on merits though it has been again dismissed on the ground of delay. The order passed by the High Court is primarily contrary to the directions of this Court and therefore, it deserves to be set aside and accordingly, is set aside. 5) In view of order dated 27.08.2018, we direct to restore the Civil Review No. 486 of 2017 and to decide the same on merits." 

The appeal arose out of 3-page long order dated August 1, 2024 passed by Patna High Court's Division Bench of Justices P. B. Bajanthri and Alok Kumar Pandey in Nand Kishore Chaudhary vs.The State Of Bihar through Chief Secretary & Ors. (2024), dismissing a Civil Review No. 486 of 2017 in Letters Patent Appeal (LPA) No. 30 of 2014 preferred by the appellant on the ground of delay of about 3 years and 23 days. The order was authored by Justice Bajanthri. The other four respondents were:  2. The Secretary, Department of Water Resources, Government of Bihar, Director, Land Acquisition and Rehabilitation, Patna, The Collector, Supaul and the Rehabilitation Officer, Koshi Project, Supaul. The Civil review was filed December 12, 2017 and registered on December 12, 2017. Prior to this Civil Review No.486 of 2017 in Letters Patent Appeal No.30 of 2014 was dismissed by the Division Bench of Chief Justice Rajendra Menon and Justice S. Kumar by its order dated March 23, 2018. The order reads:"...we find no error apparent on the face value of record warranting any review. This application is dismissed." 

Supreme Court's Division Bench of Justices Kurian Jospeh and Sanjay Kishan Kaul passed a 2-page long order dated August 27, 2018, wherein it set aside the order by Division Bench of Chief Justice Rajendra Menon and Justice S. Kumar by its order dated March 23, 2018. Its order reads:"Delay condoned. The petitioner sought appointment as a displaced person on account of flooding of Koshi river. The High Court rejected his petition on the ground that there was no evidence available on the fact that he was a displaced person. The petitioner filed a Review Petition before the High Court inviting reference to the High Court to the orders dated 04.04.2012, 11.06.2012 and 06.08.2012, wherein it has been stated that the petitioner is a displaced person. However, the Review Petition has been dismissed stating that no grounds were made out for review. The attempt on the Review Petition was to invite the reference of the High Court to some crucial materials which have not been considered in the main Judgment. We have gone through the Review Petition and we find that the main ground taken in the Review Petition is non-consideration of the materials which are referred to above regarding his status as a displaced person. In that view of the matter, we set aside the order dated 23.03.2018 passed by the High Court in Civil Review No. 486 of 2017 and remit the matter to the High Court with a request to consider the Review Petition on merits."

Subsequently, Justice Bajanthri's 2-page long order dated March 28, 2024 was passed which recorded that the Civil Review is with reference to remand by Supreme Court's order dated August 27, 2018. 

The order by Justice Bajanthri reads: "Review petitioner counsel could not apprise this Court what are the documents to establish that Vishnu Choudhary was holder of the submerger of certain land in the flooding of Kosi river and thereafter, Maluki Choudhary, who was father of the petitioner and son of Vishnu Choudhary. In the absence of these material information one cannot draw inference that petitioner’s grandfather Vishnu Choudhary land’s was merged in flooding of Kosi river. 2. Therefore, he is hereby directed to produce necessary material including genealogy tree prepared by the Revenue Authorities. Further, learned counsel for the petitioner has to apprise this Court under the employment scheme for rehabilitation persons he has to establish that grandson is entitled to claim employment with reference to a particular scheme existing as on the date of his initial appointment. State counsel is also directed to provide scheme of appointment to such of those displaced persons in Kosi River flooding."

The High Court's order dated April 25, 2024 recorded that petitioner submitted "a Policy decision of the State Government dated 30th January, 1987, in particularly, Clause (7) it relates to reservation of 15% to such of those displaced persons on account of Kosi River Flood."  

After hearing counsel appearing for both the sides, without referring to the judgment in detail, the Supreme Court recorded: "it is suffice to observe the previous order passed by this Court on 27.08.2018 in Nand Kishore Chaudhary v. The State of Bihar & Ors. (SLP (C)Diary No. 24029 of 2018), wherein this Court directed as under: “The petitioner sought appointment as a displaced person on account of flooding of Koshi river. The High Court rejected his petition on the ground that there was no evidence available on the fact that he was a displaced person. The petitioner filed a Review Petition before the High Court inviting reference to the High Court to the orders dated 04.04.2012, 11.06.2012 and 06.08.2012, wherein it has been stated that the petitioner is a displaced person. However, the Review Petition has been dismissed stating that no grounds were made out for review. The attempt on the Review Petition was to invite the reference of the High Court to some crucial materials which have not been considered in the main Judgment. We have gone through the Review Petition and we find that the main ground taken in the Review Petition is non-consideration of the materials which are referred to above regarding his status as a displaced person. In that view of the matter, we set aside the order dated 23.03.2018 passed by the High Court in Civil Review No. 486 of 2017 and remit the matter to the High Court with a request to consider the Review Petition on merits.” 

In the penultimate paragraph of its order dated 17, 2926, the Supreme Court observed: "We request the High Court to decide the Civil Review at the earliest and as far as possible, within a period of six months."

Justice Bibek Chaudhuri sets aside judgment of conviction by Additional Sessions Judge, Fast Track Court-II, Sasaram, Rohtas in a murder case of 2001

In Janardan Singh @ Janardan Singh Yadav vs. The State of Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Chandra Shekhar Jha delivered a 20-page long judgement dated April 24, 2026, wherein, it concluded:"64. ....the points for determination are answered in following words:(i) The prosecution has not been able to prove the case against the appellants beyond reasonable doubt. (ii) The identity and participation of the appellants have not been established by reliable and cogent evidence. (iii) The conviction of the appellants with the aid of Section 34 of the Indian Penal Code is not sustainable. (iv) The appellants are entitled to the benefit of doubt. 65. Accordingly, the appeals are allowed. 66. The judgment of conviction, dated 06.07.2018 and the order of sentence passed by the learned Trial Court in Sessions Trial No. 80 of 2003 are set aside. 67. The appellants are acquitted of the charges levelled against them. 68. The appellants are on bail. They are discharged from the liabilities of their bail bonds." Justices Chaudhuri authored the judgement. 

These appeals arose out of the judgment of conviction, dated July 6, 2018 and the order of sentence, passed by the Additional Sessions Judge, Fast Track Court-II, Sasaram, Rohtas, in a Sessions Trial of 2003, which arose out of Karakat P.S. Case of 2001. The Criminal Appeal by Janardan Singh @ Janardan Singh Yadav also arose out of the same judgment.

The prosecution case, as disclosed in the fardbeyan of the informant Keshav Singh, is that on 18.11.2001, the informant along with several other persons was travelling in a jeep. When the vehicle reached near Belwai, it was allegedly intercepted by a group of about fifteen persons, who were said to be armed with firearms. 5. It is alleged that the said persons surrounded the jeep and, upon identifying the occupants, opened indiscriminate fire. As a result of the firing, the driver of the jeep, Raju Pandey, along with other occupants, sustained fatal injuries. Some persons also received injuries. 6. In the fardbeyan, several accused persons, including the appellants, were named as participants in the occurrence. The allegation against them is that they acted in concert and took part in the firing upon the occupants of the jeep. On the basis of the fardbeyan, Karakat P.S. Case was instituted under Sections 302, 307 and 34 of the Indian Penal Code and Section 27 of the Arms Act. After registration of the case, investigation was taken up and, upon completion thereof, charge-sheet was submitted against the accused persons. The case was committed to the Court of Sessions and was registered as a Sessions Trial of 2003. Charges were framed against the accused persons under Sections 302/34 and 307/34 of the Indian Penal Code and Section 27 of the Arms Act. The accused persons denied the charges and claimed to be tried. 11. In course of trial, the prosecution examined a number of witnesses in support of its case. The prosecution relied mainly upon the testimony of the informant and other alleged eye-witnesses, including those who claimed to have sustained injuries in the occurrence. 12. It appears from the record that some of the witnesses did not support the prosecution case in its entirety and were declared hostile. The statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied the allegations and asserted that they have been falsely implicated.

The judgement recorded that "certain witnesses connected with the investigation and medical examination
were not examined during the course of trial." The Trial Court, upon appreciation of the evidence on record, came to the conclusion that the prosecution had succeeded in proving the occurrence and the participation of the accused persons therein. The Trial Court placed reliance upon the evidence of the eye-witnesses and held that the accused persons had acted in furtherance of their common intention. Accordingly, the accused persons were convicted under Sections 302/34 and 307/34 of the Indian Penal Code and also under Section 27 of the Arms Act. Upon conviction, they were sentenced to undergo imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and rigorous imprisonment for five years for the offence under Section 307/34 of the Indian Penal Code, along with other sentences. 

Justice Chaudhary observed: "55. Mere presence in a group, without clear evidence of participation and shared intention, is not sufficient to attract liability under Section 34 of the Indian Penal Code. In the absence of clear and cogent evidence establishing common intention, the application of Section 34 IPC becomes unsustainable. 56. Upon a cumulative assessment of the evidence on record, this Court finds that while the occurrence of firing resulting in death and injuries stands established, the participation of the appellants has not been proved with the degree of certainty required in criminal law. 57. The evidence against the appellants is general in nature, lacks specific attribution of roles, and suffers from inconsistencies and deficiencies. The presence of hostile witnesses and the non-examination of material witnesses further weaken the prosecution case. 58. In such circumstances, it would be unsafe to sustain the conviction of the appellants. 59. It is well settled that suspicion, however strong, cannot take the place of proof, and if two views are possible on the evidence, the one favourable to the accused must be adopted, as held in paragraph no. 25 of Hon'ble Supreme Court Judgement in case of Kali Ram v. State of  Himachal Pradesh, reported in (1973) 2 SCC 808...." 

It reads; 25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm
conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures or fanciful considerations. As mentioned by us  recently in the case of State of Punjab v. Jagir Singh [(1974) 3 SCC 227 : 1973 SCC (Cri) 886] a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." 

The judgement reads:"60. The prosecution has succeeded in proving the occurrence, but has failed to prove the role of the appellants beyond reasonable doubt. 61. On perusal of the evidence on record, we find that during the trail only 09 witnesses were examined. Out of them, two injured witnesses supported the prosecution case in course of their evidence. PW-1, Vinod Singh only identified Jaj Yadav; PW-2, Rajendra Singh identified accused Vinod Yadav and Bali Yadav. Thus, all the assailants were not identified by the witnesses. Informant was not examined during trial. The Medical Officer, who conducted postmortem of the deceased was also not examined. Therefore, the cause of death of the deceased has not been established. The I.O. of this case was also not examined. 62. In the absence of their evidence, it would be highly risky to affirm conviction of the accused persons on the basis of evidence of PW-1 and PW-2, specially because it is established that there was political and caste related rivalry between the accused persons and the witnesses and the deceased. 63. No explanation has been furnished by the prosecution for withholding such a material witness. The non-examination of such a material witness assumes significance and casts a serious doubt on the prosecution case, particularly when the case rests primarily on ocular evidence.

Justice Chaudhary relied on paragraph no. 156 of Supreme Court's decision in Masalti vs. State of U.P. reported in 1964 SCC OnLine SC 30, wherein, it cautioned that in cases involving a large number of accused, conviction cannot be sustained on the basis of general and omnibus allegations without specific evidence of individual participation. Paragraph 15 reads: “15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault."

Denied bail by Justices Rakesh Kumar, Arvind Srivastava in 2018 and 2023, appellants acquitted from murder charge by Justice Arun Kumar Jha

In Munna Yadav & Anr. The State of Bihar (2026), Patna High Court's Division Bench of Justices Chandra Shekhar Jha and Bibek Chaudhuri delivered a 19-page long judgment dated April 24, 2026, wherein, it concluded:"35. In view of aforesaid, we are of the considered view that testimony of PW-4 & PW-7 being interested witness not appears wholly reliable. They are immediate family members of the deceased. Their depositions are full of contradiction creating a doubt qua their presence near to the place of occurrence, and also their claim as an eye witness to the occurrence. 36. Accordingly, both above-named appellants are acquitted from the charges levelled against them, by giving benefit of doubt. 37. Hence, appeal stands allowed. 38. Accordingly, impugned judgment of conviction dated 4th June, 2018 and order of sentence dated 12.06.2018, passed by learned A.D.J., F.T.C.- 1st, Jamui in S. Tr. No. 278/2011 arising out of G.R. No. 169/2011 arising out of Khaira P.S. Case No. 17 of 2011 is hereby set aside. 39. Appellants namely, Munna Yadav and Dilip Yadav are in custody in connection with this case, they are directed to be released forthwith, if not required in any other case. Fine if any paid, be returned to appellants forthwith." 

The appeal was preferred under section 374(2) of the Cr.P.C. against the impugned judgment of conviction dated June 4, 2018 and order of sentence dated June 12, 201, whereby and whereunder the two appellants were convicted for the offences punishable under section 302/34 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life.

The prosecution case as per Fard-e-beyan of Manju Devi (informant/PW-7) wife of Late Jageshwar Yadav of village – Mangobandar, P.S. - Khaira, District – Jamui, recorded by the S.I. of Khaira Police Station dated 08.02.2011, that on 07.02.2011 at about 7:00 P.M., the husband of informant (PW-7) had gone to supply the milk in the breakfast-cum-tea shop of one Vinod Rawat, which was situated in Mangobandar Bazar, but her husband did not return to his home. The informant alleged that when she went in search of her husband and was going on road at about 8:00 P.M., then, she saw that near to the house of one Prayag Thakur of village – Nai Tola, the accused persons, who belonged to the same family, namely, Dilip Yadav (appellant no.2) , Munna Yadav (appellant no.1) and Huro Yadav were assaulting her husband by means of
brick and stones and also dragging him by holding Gamchha in his neck. The informant further alleged that on seeing the such condition of her husband, she started raising alarm. Thereafter, all the accused persons fled away leaving the husband of the informant in injured condition at the place of occurrence. She further states that anyhow with the help of her Gotni (PW-3), she taken away the dead body of her husband to their house and informed the family members. The informant alleged that there was land dispute between the accused persons and the deceased husband of the informant and due to this reason her husband was murdered by the aforesaid accused persons/appellants. 

On the basis of said written information, Khaira P.S. Case was registered for the offences punishable under sections 302/34 of the Indian Penal Code. After concluding investigation, police submitted charge-sheet against the appellants. The jurisdictional Magistrate after perusal of materials and records took cognizance accordingly and after compliance of section 207 of the Cr.P.C. committed this case to the court of sessions under section 209 of the Cr.P.C. for its trial and disposal.

After commitment, learned trial court, upon perusal of records, framed charges against accused persons/appellants under section 302/34 of the IPC and explained the charges to the accused/appellants in their vernacular language, which they pleaded “not guilty” and claimed to be tried. To substantiate its case, prosecution altogether examined seven witnesses

Justice Jha observed: "The missing links could have been provided by the Investigating Officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the Investigating Officer could not depose as a witness, as told by PW-4, is that he had been sent for training. It was not shown that the Investigating Officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the Investigating Officer. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW-2 and PW-3 not being wholly reliable, this Court holds the present case as one where examination of the Investigating Officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case."

Notably, by its order dated July 26, 2023, the High Court's Division Bench of Justices Arvind Srivastava and Sunil Dutta Mishra had declined to grant the privilege of bail to the appellants. Their prayer for bail was rejected by Justice Srivastava who had authored the order. The appellants had prayed for suspension of sentence and grant of bail during the pendency of appeal. Their prayer for bail was earlier rejected by the Court's Division Bench of Justices Rakesh Kumar and Arvind Srivastava by its order dated October 3, 2018. The order was authored by Justice Kumar. The appellants were languishing in custody since June 4, 2018.

The judgement reads:" In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.” 

Is it not noteworthy that both Justice Kumar and Justice Srivastava erred like Additional District Judge, Jamui in not considering the issue of non-examination of the Investigating Officer? Is it not because of S.K. Lal, the senior advocate that the Court could detect the issue of non-examination of the Investigating Officer?

Supreme Court set aside order by Justice Rajiv Roy, grants anticipatory bail

In  Maksud Alam & Ors. vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices M.M. Sundresh And Nongmeikapam Kotiswar Singh passed a 5-page long order dated April 24, 2026, wherein, it concluded:"....the impugned order stands set aside and the appellants are granted anticipatory bail, subject to the terms and conditions that may be imposed by the Trial Court. The appeal stands allowed, accordingly. The appellants shall appear before the Investigating Officer on 5th May, 2026 at 11.00 a.m. If they do not appear on the said day, anticipatory bail granted to the appellants by this Court shall stand cancelled automatically."

The impugned order refers to the 3-page long order dated January 15, 2026 by Justice Rajiv Roy of the Patna High Court.  

The petitioners had approached the High Court apprehending their arrest in connection with Amnour P.S. Case No. 220 of 2025 registered for the offence punishable under Sections 115(2), 126(2), 109(1), 303(2), 351(2), 352 and 3(5) of the Bharatiya Nyaya Sanhita, lodged by the informant Ankita Raj. The informant had alleged that after treatment of her child, as they were returning on their vehicle, the wedding procession of Siraj Ansari was going on. As they have blocked the road, request was made whereafter the accused side armed variously assaulted causing injuries. The husband and the informant was taken to the Primary Health Centre, Garkha, Saran at Chapra and the allegation is that thereafter Ehsan Ali threatened the informant and others with dire consequences after their release on bail. This led to the F.I.R.

The counsel for the petitioner had taken Justice Royto Court to an order passed by a coordinate Bench of the High Court in Najrul Miyan and Ors. vs. The State of Bihar disposed of on December 24, 2025 to show that similar situated persons were extended relief. 

Supreme Court observed: "The antecedent in which the appellants are allegedly involved, pertain to an occurrence in respect of which a complaint was also given on behalf of the appellants. The appellants have, in fact, joined the investigation and their custodial interrogation is not required." It has reversed the order by Justice Roy.