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.”
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