Patna High Court's Division bench of Justices Ashutosh Kumar and Vipul M. Pancholi had upheld the judgment of conviction and order of sentence dated March 8, 2019 and March 14, 2019 respectively, rendered by the 1st Additional Sessions Judge-cum-Special Judge (NDPS) Act, Aurangabad arising out of a case of 2016, whereby all the appellants were convicted for the offences punishable under Sections 8-20 (b) ii (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced them to undergo rigorous imprisonment for 14 years and to pay a fine of Rs.1,50,000/- each and in default of payment of fine to undergo S.I. for six months each.
In its judgement dated August 2, 2023, the Division Bench observed: "Thus, only because a Magistrate was not present when samples were drawn, we have no other reasons to doubt the correctness of the prosecution version that the appellants were carrying narcotics with them. 29. We have also gone through the reasoning recorded by the Trial Court while passing the impugned order of conviction and we are of the view that the Trial Court has not committed any error while passing the impugned order of conviction and, therefore, we are not inclined to interfere with the same in the present appeals filed by the appellants-accused." The judgement has been challenged in the Supreme Court. The appeal was called on for hearing on May 13, 2025.
The FIR states that pursuant to a secret information on October 2, 2016, at about 08:10. a.m. that a pick-up van bearing Registration No. BR 04M 0561 which was being used in transportation of huge quantity of Ganja. The pick-up van was intercepted and stopped near Batane river. During search, four persons, namely, Raushan Kumar, Ram Lakhan Tiwary, Upendra Giri and Suraj Sao @ Rukhi Sao were found sitting in the van. It was stated that during search, 898 kg of Ganja was recovered and seized.
The counsel of the appellants- accused submitted that out of ten witnesses, eight witnesses are police personnel and, therefore, they are interested witnesses. Two other formal witnesses have been examined by the prosecution. However, the prosecution has failed to examine any independent witnesses. Thus, the Trial Court ought not to have relied upon the deposition given by the interested witnesses. It is further submitted that there is no recovery of Ganja from physical possession/conscious possession of the appellants-accused and the seized Ganja was found from the pick-up van, as alleged by the prosecution. However, so far as carrying out the search is concerned, the Investigating Agenc has not complied with the mandatory provisions of NDPS Act. Search was not carried out in presence of Gazetted Officers or Magistrate and, therefore, on the ground of violation of mandatory provisions of NDPS Act, the Trial Court ought to have acquitted the appellants-accused.
The counsel appearing for the defence also contended that while collecting the samples from the packets which were prepared by the Investigating Agency, proper procedure has not been followed and, therefore, the report given by the concerned FSL may not be believed by this Court. It was further submitted that theguidelines issued by the Supreme Court in the case of Union of India Vs. Mohanlal & Anr., reported in (2016) 3 SCC 379 has not been followed and thereby there is violation of provisions contained in Section 52A of the NDPS Act.
The counsel of the accused Ram Lakhan Tiwary submitted that the accused was only an occupant of the vehicle and he was not at all aware about the fact that alleged Ganja is being kept in the said pick-up van. He urged that impugned order of conviction passed by the concerned Trial Court be quashed and set aside.
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