In Surendra Sah Surendra Sah @ Surender Sah Kanu @ Surender Shah vs. The State of Bihar (2025), Justice Sandeep Kumar of Patna High Court set aside the impugned judgment of conviction dated July 6, 2020 and the order of sentence dated July 7, 2020 passed by Additional Sessions Judge-II, West Champaran, Bettiah, in a trial of 2019. Surendra Sah, a resident of Bada Teuki, Pokhariya, Parsa, Nepal, the appellant was acquitted of all the charges levelled against him.The appeal was allowed. The appellant was discharged from the liabilities of his bail bonds.
The appellant was been convicted under sections 20(b)(ii)(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. For the offence under section 20(b)(ii)(c) of the N.D.P.S. Act, the appellant was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. one lakh was imposed. Under section 23(c) of the N.D.P.S. Act, the appellant was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. one lakh was imposed. Both the sentences were directed to run concurrently.
The case emanated from a secret information regarding transport of a consignment of charas coming to India from Nepal, which was received by one Padma Vangil, the Head Constable of 44th Company Seema Suraksha Bal (SSB), Narkatiaganj. The description of the person carrying/transporting the consignment was also disclosed as wearing a white checked shirt, blue coloured pant and a green coloured towel (gamcha). Accordingly, the officers of the S.S.B. were informed and a joint special quick response team was constituted to carry out the operation of intercepting the consignment. According to the informant, as stated in the written complaint, the informant along with other personnel reached the disclosed location near border pillar no. 411(56) a person was spotted matching the description as disclosed in the information, accordingly, the said person was stopped and he was was given an option for getting himself searched by a Gazetted Officer or by a Magistrate or by the informant, to which, the apprehended person replied that the informant can carry out the search. Thereafter, the search was being carried out in presence of two independent witnesses. It was next alleged that the object appeared to be charas which was packed in 8 plastic bundles. The substance was tested by using the narcotics detection kit which gave positive result for charas. Thereafter, the contraband was weighed using an electric weighing machine and was found to be weighing 02 kilograms.
The counsel for the appellant submitted that the main thrust of the defence of the appellant is complete denial of the facts as narrated by the informant rather the true fact of the matter was that the father-in-law of the appellant had invited the appellant and his wife to attend a appellant had gone to market along with Bhagmat Sah and Shravan Mahto in order to purchase certain goods, but he was apprehended by the police and was taken on a motorcycle from the market place itself. He drew on the fardbeyan of the informant to underscore that the informant was conspicuously silent on the location of the said object/contraband on the person of the appellant. It is not the case of the prosecution that the contraband was concealed by the appellant in his clothes/belt or that the appellant was carrying a bag/packet of any kind. The counsel also pointed out that according to the informant the appellant suddenly threw the object and attempted to flee away, which appears to be a fanciful and concocted allegation. The counsel for the appellant referring to the provisions contained under section 50 of the N.D.P.S. Act submitted that since the informant himself was not a Gazetted Officer, the search being carried by the informant violates the statutory right of the appellant. He emphasized that the trial Court failed to appreciate the defence of the appellant and also the flagrant disregard and complete breach of the provisions of the N.D.P.S. Act while carrying out the search and seizure. It was emphatically argued that the non-compliance of the mandatory provisions of the N.D.P.S. Act relating to pre and post search, seizure and arrest conditions by the informant and the investigating officer completely vitiates the entire prosecution case. There was total violation of the section 50 of the N.D.P.S. Act since the search, seizure and arrest of the appellant was done in absence of a Gazetted Officer or a Magistrate at the place of occurrence. The P.W.-3/informant was the Head Constable and during the raid he was acting in the capacity of Party Commandant of the team, which is corroborated by the signature of P.W.-03 on the seizure list wherein P.W.-03 has signed the same as HC/GD. Therefore, it was submitted that P.W.-03 was not authorized under law to carry out the search and seizure. Drawing on Section 42(1) of the N.D.P.S. Act, it was submitted that an officer having any prior information was required to reduce such information in writing. Further, section 42(2) of the Act mandates that such information mandatorily within 72 hours be sent to immediate superior officer. However, in the instant case, even though the P.W.-03/informant had prior information about the contraband being transported to India, yet no written information was given to the superior authorities, rather the P.W.-03/informant has merely deposed that an information was given to superior authority but no supporting evidence was adduced by the prosecution.
It was also submitted that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, 1973 the safeguards provided under the NDPS Act was also required to be followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards.
The counsel relied upon the Constitution Bench decision rendered in the case of State of Punjab vs. Baldev Singh reported as 1999 (6) SCC 172 18. It was submitted that the effect and non-compliance of section 42(2) and 50 of the N.D.P.S. has been considered by the Supreme Court in the case Beckodan Abdul Rahiman vs. The State of Kerala reported in of paragraph no.3 and paragraph no.4.
In State of Punjab vs. Balbir Singh [1994(3) SCC 299] it was held that under Section 42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is a total non compliance of the provisions the same affects the prosecution case. To that extent it is mandatory. To the same effect is the judgment in Saiyad Mohd. Saiyad Umar Saiyad & Ors. vs. State of Gujarat [1995 (3) SCC 610].” He also relied upon the decision of the Supreme Court in the case of State of Rajasthan vs. Jagraj Singh @ Hansa reported as 2016 (11) SCC 687 and has submitted that in the aforesaid
case similar view has been taken by the Supreme Court.
On the point of non-compliance of section 50 of the NDPS Act, the counsel for the appellant has also relied on the decision of the Hon'ble Supreme Court in the case of State of Delhi vs. Ram Avtar alias Rama reported in (2011).
The counsel submitted that the official witnesses merely concocted the entire story. He drew on decision of the Supreme Court rendered in the case of Kishan Chand vs. State of Haryana (2013) 2 SCC 502 and has submitted that in the aforesaid decision the Supreme Court has considered the compliance of Sections 42, 50 and 57. He also relied upon the judgment of the Division Bench of the Patna High Court passed in Pratibha Devi vs. State of Bihar reported as 2016 SCC OnLine Pat 10482. He further relied upon the decision of the the High Court passed in Bhuvneshwar Singh @ Bhanu Singh vs. State of Bihar [Cr. Appeal No.183 of 1998], more particularly, paragraph no.15. He also relied upon the decision of the Supreme Court in the case of Union of India vs. Mohanlal reported as 2016 (3) SCC 379 and has submitted that in the aforesaid decision the Supreme Court has considered the fact that whether it is incumbent upon the Officer-in-charge to forthwith file an application for drawing representative samples before the Magistrate after recovery of contraband.
The appellant's counsel also relied upon the decisions in Dudh Nath Pandey vs. State of U.P. reported as (1981) 2 SCC 166 and Munshi Prasad and Others vs. State of Bihar reported as (2002) 1 SCC 351.
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