Judgements of Patna High Court in NDPS cases

In Guddu Singh v. State of Bihar (2018), Justice Ashutosh Kumar set aside the judgment and order of conviction dated February 13, 2017 and February 15, 2017 respectively, passed by the 7th Additional Sessions Judge-Cum-Special Judge, Motihari, East Champaran, in N.D.P.S. Case No. 01 of 2015/30 of 2016, arising out of Chhauradano P.S. Case No. 150 of 2014.  

Guddu Singh, the appellant was convicted for the offence punishable under Section 20(b)ii(B) of the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 by the 7th Additional Sessions Judge-Cum-Special Judge, Motihari, East Champaran. He was directed to undergo rigorous imprisonment for five years, to pay a fine of Rs. 50,000/- for such offence and in default of payment of fine to further suffer  simple imprisonment for one year. The appellant was found to be in possession of two kilograms of Ganja. The police submitted charge-sheet after investigation, whereupon the cognizance was taken and the appellant was tried for the offences.

Justice Kumar observed that "it is clearly revealed that there has been violation of Sections 41, 42, 52 and 55 of the N.D.P.S. Act and standing instructions of the N.C.B. with respect to search, seizure and sampling. For the aforesaid reasons, this Court is of the view that the prosecution has not been able to bring home the charges against the appellant for the offence in which he has been convicted, beyond all reasonable doubts."

He concluded that "the appellant/Guddu Singh has remained in jail since 29.12.2014, i.e. for more than three years. This Court, therefore, has no option but to accord the benefit of doubt to the appellant. The appeal succeeds. The appellant/Guddu Singh is acquitted of all charges. He is in jail. He is directed to be released forthwith, if not wanted in any other criminal case. Let a copy of this judgment be transmitted to the Superintendent of concerned jail for necessary compliance." The judgement was delivered by Justice Ashutosh Kumar on March 30, 2018 

In Shiv Shankar Dixit vs. Union of India 2017 (1) PLJR 671, seized articles were placed before the Magistrate after three months from the occurrence. No cogent evidence was produced that alleged quantity of Ganja was seized from the conscious presence of the appellant. There was noncompliance of Section 52A of the NDPS act The Prosecution relied on the confession of the accused recorded under Section 67 of the NDPS act. The accused in his confession statement has only said that he did not know that there was Ganja in the vehicle and indicated that Devi sau told him that there was bearing in the vehicle which was to be handed over to one Khan at Barh. He also said in his confession statement that Devi Sau was actual driver who had handed over the steering of the vehicle to the accused and had left the vehicle on the pretext of clearing the Jam. The confession statement was found to be exculpatory in nature and was not found admissible. The accused was accordingly acquitted by the High Court.

In Parmanand Choubey vs. State of Bihar 2017 (2) PLJR 540, a petition for release of vehicle was rejected by the District Judge on the ground that any conveyance used to carry any Narcotic Drug or Psychotropic substance is liable for confiscation under sub section 1 or sub section 2 of the NDPS act and also on the ground that since investigation was still pending, it will not be proper to release the vehicle. It was held that section 60(3) of NDPS act does not put a bar for release of vehicle during the pendency of investigation or trial by the court.

In Muneshwar Pandit vs. State of Bihar 2018 (1) PLJR 494, the Patna High reiterated the law laid down in State of Rajasthan vs. Ram Chandra AIR 2005 SC 2221 and observed that when a person is about to be searched the requirement of section 50 would be that the officer proposing to effect the search cannot act in a dual capacity: first as an officer authorized under section 42 to search a person and second as the Gazetted officer in whose presence the option of search is given to the accused. Officer conducting the search cannot discharge the dualfunction both under section 42 and section 50 of the NDPS Act. The informant has said in his testimony that the SDM was leading the raiding partyand it was in his presence that the seizure and sampling was done but the SDM wasnot examined and even his signature was not available on the seizure list. Moreover,the seized Ganaja was kept in 9 packets but the seal was available only on 6 packets.There was unexplained delay of 20 days in sending the samples to the FSL. The seizure witnesses also denied having any knowledge of the seizure. All these circumstances were found to be fatal to the prosecution case and led to the acquittal of the accused.

In Ram Narayan Shah vs. Union of India 2018 (1) PLJR 386, 200 grams of Heroin was found hidden between the speedometer and visor of the bike from which two samples of 5-5 grams each (S1 and S2) were drawn and sealed with the department seal at the spot. The rest 190 grams were of the recovered substance was heat sealed in transparent polythene packet and was put in a paper envelope and sealed by the department seal which was signed by the seizing officer, independent witnesses and the owner of the goods. Even though the samples were produced before the court but the original seized articles were not produced. The sample taken from the seized bulk was on record and the report of the FSL on the sample taken stated that the sample was that of Heroin and Morphine and the certificate of the articles seized was also proved. These facts coupled with the confessional certificate of the accused under section 67 was found sufficient for conviction of the accused even though the original contrabands that were seized were not produced before the Court.

In Tuntun Gope vs State of Bihar 2018 (1) PLJR 777, charas was alleged to have been recovered from the possession of the accused in presence of BDO. The statement of the BDO showed that he reached the place of occurrence after the seizure. The informant has not said anything in his report about asking the accused for taking his search and about consent by the accused for his search before the magistrate/gazetted officer. There is nothing on record to indicate that the informant made the accused aware that B.D.O. Fatuha is present before him. There is nothing on record to indicate that the informant informed the accused about his right of being searched before a gazatted officer or a magistrate. The seized contraband was sent to F.S.L. for examination on 16.11.2013 while the same wa seized from the possession of the accused on 9.11.2013. The whereabout of the contraband for these seven days was not explained. The seizure and arrest were not reported by the Informant to the Senior Police Officers within 48 hours and thereby Section 57 of the NDPS Act was not complied. The seized contraband was not produced before the trial court and no explanation was given. Benefit of Doubt was given to the accused.

In Raj Kumar vs. State of Bihar 2018 (2) PLJR 214, seized Charas was not kept in Malkhana, the sample was not sealed, sample was not prepared in presence of the Magistrate even after appointment of Magistrate and the seized material was sent to laboratory examination after about one and half years of its seizure. The independent witnesses were not examined and the remaining witnesses were all police officers. No explanation was provided by the prosecution for non-production of the Charas as an exhibit in the trial. The contention of the prosecution that the confession of the accused recorded under section 67 of the Act is sufficient for awarding punishment also did not find favour with the Court since the accused was kept at SSB camp for 24 hours and therefore presumption can be drawn that the confession was not voluntary. Hence the accused was acquitted.

In Bhulan Das vs. State of Bihar 2018(2) PLJR 361, seizure list witnesses were not examined by the prosecution. Instead, defence has examined one of them as defence witness. The said witness has not supported the prosecution case of raid of the houses of the appellants by the police personnel and recovery and seizure of the contrabands from their house. There is nothing on record to show that on receiving the secret information and making the sanha entry, the informant had sent either the information or the copy of the sanha entry to the immediate superior officer. Thus, there was utter violation of Section 42 (2) of NDPS act. There was nothing on record to show that the seized Ganja was either sealed at the place of occurrence by the informant or at the police station by SHO as none of the witnesses examined by the prosecution has stated so. This aspect creates serious doubt about the seizure of the contraband, its quantity and taking of the sample and sending the same to FSL. The samples were not collected from each packet of the seized Ganja separately nor by mixing the contents of each packets together. All these aspects were found to be fatal to the prosecution case and accordingly the case was found fit for acquittal of the accused.

In Sharawan Prasad vs. State of Bihar 2018 (3) PLJR 93, no evidence was offered to show the search and seizure was made in front of any gazatted officer or magistrate. Sampling was also not done as per standing order no:01/98 or 01/89 issued under the section 52A. The seized article was sent for examination after a month of seizure. There was violation of section 57 of NDPS act. The informant himself was the investigating officer of the case. All these circumstances were found sufficient for the acquittal of the accused, the case.

In Amit Kumar vs. State of Bihar 2018 (3) PLJR 90,, possession of any of the drugs covered under the schedule H & H1 without any, license attracts the offence punishable under the NDPS act. Huge quantities of Corex Cough Syrup, Fortwin Inj. & Ativan Tabs. were recovered from the shop of the accused. These drugs contained ingredients specified in schedule H & H1. The accused had license only to sell schedule C & C/1 drugs. Therefore, the order rejecting discharge petition of the accused was affirmed by the Court.  

In Md. Samsul vs. Union of India 2018 (4) PLJR 261, the seizure list witnesses were not examined. The search was carried on information received but this information was not recorded in writing. Inventory of seized Ganja was not proved and entry register of Malkhana where the seized Ganja was kept and from where it was set to have been taken out for destruction was not proved, as such there was no compliance of section 52(A)(2) and of section 50 of the NDPS act. None of the provision regarding search, seizure, preparation of inventory and destruction of contraband articles, certification etc. were followed. Hence conviction and sentence were set aside.