Contraband not recovered from appellant, "no useful purpose served in carrying out a prosecution against the appellant": Supreme Court

In Sanjana Bhaskaran vs. State of Telangana & Anr. (2026), the Supreme Court's Division Bench of Justices J.B. Pardiwala and K. Vinod Chandran passed a 5-page long order dated October 9, 2026, wherein, it concluded:"6. Trite is the principle that no confession can be relied on. The contraband also having not been recovered from the appellant, we are of the opinion that there would be no useful purpose served in carrying out a prosecution against the appellant. We are of the opinion that the Police should be more sensitive in such matters, especially since the appellant, in one way, is a victim being last in the chain of supply. Prosecuting such victims can have a spiralling effect and incarceration pending trial, can lead to more disastrous consequences of the victim joining the supply chain, by reason only of associations developed in prisons. Curbing availability and breaking the supply chain shall be the focus and not merely punishing the user, who is actually the victim....8. Insofar as the appellant is concerned, her arraignment in the Sessions Case stands quashed. We are not persuaded to subject the appellant to a de-addiction process, especially since we find no complicity insofar as the appellant is concerned with respect to the allegations raised of conscious possession of narcotics. 9. The appeal stands allowed."

The appellant was the 4th accused in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 and the allegation was that she had received a packet from the co-accused; two of whom were apprehended along with her, and the packet contained dried leaves and buds with strong odour, which was later identified as marijuana. The appellant was subjected to a medical test, wherein she was detected to have used marijuana. The alleged sellers of marijuana near the educational institution were apprehended with much more quantity of marijuana, which was kept in the Scooty on which they came to the spot, from where they were apprehended. The co-accused disclosed the names of their supplier, who was also arrayed in the case.

The order records:"3. Insofar as the appellant is concerned, even according to the statements of the officers of the police team, there was no recovery made from her or from the bag which she carried. In fact, the specific case is that the Sub-Inspector of Police, Nandigama Police Station, received a credible information that two persons were coming to sell marijuana near a college. The same was intimated to the superior officers and deputation of two government employees were sought from the Tahsildar to act as panch witnesses. The police team along with independent witnesses reached the spot at about 02:30 pm. At 03:00 pm, two persons arrived on a Scooty and halted at a distance of 100 meters from where the police team was carrying out surveillance. The appellant is said to have emerged from the college, approached the two persons who were standing near the Scooty, who handed over a cover to the girl, which was kept in her bag.  4. The police immediately pounced on the three and the allegation is that the appellant produced the cover from her bag; voluntarily. In fact, when the police saw the appellant putting the cover in the bag, they should have informed her about her right to be examined before a Magistrate and then they should have carried out the search, if she consents to that. The version that the girl produced the cover voluntarily, raises a suspicion also with respect to the knowledge of the appellant, that there was a contraband in the cover. In fact, the entire case set up against the appellant was based on the confession, said to have been made by the co-accused; the two persons who had commercial quantity of marijuana with them and the confession of the appellant herself."

The Court clarified that it had not looked at the case of the other accused who were arrayed in S.C. NDPS No. 91/2025 pending before the Special Sessions Judge, Fast Track Court, Rangareddy District, LB Nagar.  

Justices Bibek Chaudhuri, Dr. Anshuman sets aside judgemengt by Exclusive Special Judge, NDPS Court No. II, East Champaran

In Manoj Yadav vs. The State of Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Dr. Anshuman delivered a 39-page long judgement dated May 11, 2026, wherein, it concluded:"89. Consequently, this Court is of the considered opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and the appellant is entitled to benefit of doubt.....this Court deems it appropriate to observe that cases arising under the NDPS Act require strict adherence to the statutory safeguards prescribed under the Act. The investigating agency is expected to ensure scrupulous compliance of the mandatory procedural requirements relating to search, seizure, sampling and preservation of seized narcotic substances so as to maintain the sanctity and credibility of the prosecution case." It was heard along with Sheikh Amrullah vs. The State of Bihar (2026). The judgement also concluded:"91. The judgment of conviction, dated 14.05.2025 and the order of sentence, dated 19.05.2025, passed by the learned Exclusive Special Judge, NDPS Court No. II, East Champaran, Motihari in NDPS Case No. 10 of 2024, arising out of Ramgarhwa P.S. Case No. 277 of 2023, so far as it relates to the present appellant Sheikh Amirullah, are hereby set aside." The judgement was authored by Justice Chaudhury. 

The criminal appeal was preferred by the appellant against the judgment of conviction dated May 14, 2025 and the order of sentence dated May 19, 2025 passed by the Exclusive Special Judge, NDPS Court No. II, East Champaran, Motihari in NDPS Case No. 10 of 2024, arising out of Ramgarhwa P.S. Case No. 277 of 2023. By the impugned judgment, the Trial Court held the appellant along with co-accused persons guilty for the offences punishable under Sections 20(b)(ii)(c), 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced them to undergo rigorous imprisonment for fourteen years along with fine of Rs.1,00,000/ each. 

The appellant, namely Sheikh Amirullah, who was arrayed as accused no. 2 before the Trial Court, had assailed the judgment on the ground that the conviction was recorded without proper appreciation of the evidence on record and in complete disregard of the mandatory safeguards provided under the NDPS Act. The prosecution case arose out of an alleged recovery of charas of commercial quantity was said to have been made from the possession of the accused persons on July 5, 2023, leading to institution of the police case and subsequent trial culminating in conviction. Being aggrieved by the recorded findings of the Trial Court and the sentence imposed, the appeal was filed seeking interference of the High Court.

The prosecution case emerged from the written report of the informant and the evidence adduced during trial, was that on July 5, 2023 at about 19:30 hours, the informant, namely Indrajeet Paswan, who was then posted as Officer-in-Charge of Ramgarhwa Police Station, along with other police personnel, proceeded on patrolling duty from the police station. It was stated that while the police party was engaged in routine checking of vehicles near Bela Canal Chowk, two motorcycles were seen approaching from the side of Ramgarhwa market. One motorcycle was being driven by a single person, while on the other motorcycle, two persons were riding. On noticing the police party, the accused persons allegedly turned their motorcycles and attempted to flee towards the market side, which aroused suspicion. The police party immediately chased the motorcycles and succeeded in intercepting them near Semar Chowk. 

Upon interception, the persons riding the motorcycles were apprehended and their identities were ascertained. The person on the first motorcycle disclosed his name as Manoj Yadav, whereas the two persons on the second motorcycle disclosed their names as Suresh Prasad Kushwaha and Sheikh Amirullah, the appellant. Upon questioning regarding the articles carried by them, the accused persons allegedly became nervous and gave evasive replies. Thereafter, the police decided to conduct search of their persons as well as the bags allegedly carried by them.

According to the prosecution, before conducting the search, the accused persons were informed about their legal right under Section 50 of the NDPS Act, and it was alleged that they consented to be searched by the police party itself. Thereafter, the contraband articles were seized, seizure list was prepared at the place of occurrence, and the accused persons were taken into custody.

On the basis of the written report of the informant, a Ramgarhwa P.S. Case of 2023 was registered under the relevant provisions of the NDPS Act, and investigation was taken up. Upon completion of investigation, charge-sheet was submitted against the accused persons, whereafter cognizance was taken and the case was committed for trial. Upon completion of investigation, charge-sheet was submitted against the accused persons, whereafter cognizance of the offences under Sections 20(b)(ii)(c), 23 and 25 of the NDPS Act was taken and the case was committed to the Court of Exclusive Special Judge, NDPS, where it came to be registered as NDPS Case No. 10 of 2024. Charges were framed on June 19, 2024 against all the accused persons. The contents of the charges were read over and explained to them in vernacular, to which they pleaded not guilty and claimed to be tried.

In order to bring home the charges, the prosecution examined altogether six witnesses. Upon a careful reading of their cross-examination, it appears that these witnesses have not been able to furnish clear and consistent details regarding the manner in which the seized articles were handled after recovery. There is no definite evidence regarding sealing of the contraband at the place of occurrence, nor is there any clarity as to the procedure adopted for sampling. It also came on record that although public persons were present, none were made witnesses to the seizure and no explanation, except a general statement of refusal, was substantiated.

Justice Chaudhury observed: "29. Thus, the entire case of the prosecution rests upon the testimony of police witnesses and the documents prepared during investigation, without any independent corroboration with respect to the alleged recovery, search and subsequent handling of the seized contraband."

Justice Chaudhury added: "29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of Section 42. We thus, conclude that the High Court has rightly held that non-compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.

Upon hearing and upon consideration of the materials available on record, the following questions arise for determination in the appeal before the Division Bench: (i) Whether the prosecution has been able to prove beyond reasonable doubt that the alleged contraband was recovered from conscious and exclusive possession of the appellant in the manner alleged? (ii) Whether the prosecution has complied with the mandatory requirements of Sections 42, 52A, 55 and 57 of the NDPS Act in course of search, seizure, sampling and subsequent handling of the seized articles? (iii) Whether the prosecution has been able to establish a complete and reliable chain of custody with respect to the alleged seized contraband from the stage of seizure till forensic examination? (iv) Whether non-examination of seizure witnesses, non-production of seized contraband before the Court and the contradictions appearing in the evidence of prosecution witnesses create reasonable doubt in the prosecution case? (v) Whether the conviction and sentence recorded by the learned Trial Court can be sustained in the facts and circumstances of the present case?

The judgement reads: "60. The prosecution case rests entirely upon the testimony of official witnesses. Admittedly, no independent witness has been examined in the present case, although the prosecution itself asserts that several persons had assembled at the place of occurrence. The prosecution has sought to explain such non-examination by stating that public persons declined to become witnesses. However, except such bald assertion, no material has been brought on record to show that any sincere effort was made to secure participation of independent persons. 61. It further appears from the record that even the chowkidars, namely Nawal Kishore Rai and Raushan Kumar Patel, who according to the prosecution were present during the alleged search and seizure, have not been examined during trial. No satisfactory explanation has been furnished regarding their non-examination. In a case resting solely upon police witnesses, non-examination of such material witnesses assumes significance and creates doubt regarding fairness of the alleged recovery proceedings."

It has recorded: "66. The evidence on record further reveals serious infirmities with regard to seizure, sampling and preservation of the alleged contraband. PW-1, PW-2 and PW-3, though members of the raiding party, have not stated anything regarding sealing of the seized articles at the place of occurrence or drawing of samples at the spot. Their evidence is conspicuously silent regarding the manner in which the
seized contraband was preserved after seizure. 67. The evidence of PW-6, the Investigating Officer, assumes considerable importance in this regard. In paragraph 40 of his evidence, he has admitted that samples were not drawn at the place of occurrence. In paragraph 42, he has stated that he was not aware as to when and where the seized articles were sealed. He has further stated that samples were drawn on 15.10.2023, i.e., more than three months after the alleged seizure dated 05.07.2023....70. Another important aspect which cannot be ignored is that the prosecution has failed to prove preparation of inventory in accordance with Section 52A of the NDPS Act. There is no evidence to show that samples were drawn before a Magistrate or that any inventory was certified as required under law.....72. This Court also finds substance in the submission advanced regarding non-production of the seized contraband before the Court. The alleged seized article has not been produced and marked as material exhibit during trial. In
Vijay Jain vs. State of Madhya Pradesh, reported in (2013) 14 SCC 527 it has been held that failure to produce the seized contraband before the Court creates serious doubt regarding the prosecution case." 

Supreme Court grants bail in a case of 22 kg of ganja

In Rajadurai vs. The State of Tamil Nadu (2026), Supreme Court's Division Bench of Justices J.B. Pardiwala and K.V. Viswanathan passed a 4-page long order dated May 5, 2026, wherein, upon hearing the SLP of the petitioner who was denied regular bail by Madras High Court in connection with the First Information Report for the offence punishable under Sections 8(c) 20(b) (ii) (c) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, concluded:"....we are persuaded to exercise our discretion in favour of the petitioner. 5. We order that the petitioner be released on bail forthwith, if not required in any other case, subject to the terms and conditions that the Trial Court may deem fit to impose."

The contraband involved in the case was 22.950 kgs of ganja. The counsel for the petitioner submitted that her client was in judicial custody past more than one year. 

The Court was informed that although charge was framed by the Trial Court yet till this date not a single witness has been examined. The FIR was registered with Kottampati Police Station, Madurai, Tamil Nadu. 

Justice Sandeep Kumar quashes order granting sanction for prosecution by Secretary, Department of Law, Government of Bihar

In Mr. S. Kumar @ Shailesh Kumar vs. The State of Bihar    & Anr.(2026), Justice Sandeep Kumar delivered a 29-page long judgement dated January 21, 2026 wherein, he quashed the order granting sanction for prosecution by Secretary, Department of Law, Government of Bihar. The judgement recorded that despite valid service of notice, none appeared on behalf of Milan Kumar Sudhaka, the opposite party no.2. Justice Kumar concluded:"33. In view of the aforesaid discussions, the impugned F.I.R vide Kadamkuan P.S. Case No.238 of 2024 and all consequential proceedings arising therefrom including the impugned sanction order dated 28.12.2020 are hereby quashed qua the present petitioner. 34. Accordingly, the present quashing petition is allowed. "

The application was filed invoking the inherent jurisdiction of this Court under section 482 of the Criminal Procedure Code for quashing the order contained in memo dated December 28, 2020, passed by the Secretary, Department of Law, Government of Bihar whereby sanction for prosecution under section 420, 467, 468, 471, 120-B of the Indian Penal Code was granted against the petitioner in connection with a Kadamkuan P.S. Case of 2014 registered on May 24, 2014. Subsequently, during the pendency of the petition, the petitioner moved an Interlocutory Application in 2024 seeking amendment in the prayer portion of the petition and assailed the F.I.R vide Kadamkuan P.S. Case of 2014 and also the charge-sheet of 2021 filed against the petitioner. 

The Complaint Case of 2014 was filed on April 4, 2014 in the Court of C.J.M., Patna by the complainant namely, Milan Kumar Sudhakar in the capacity of power of attorney holder of his grandmother, Dr. Gyan Kaur Yadav, against two accused persons namely S. Kumar, the petitioner and one Sitaram Chaudhary. In the complaint petition, the complainant stated that power of attorney (POA) was executed in the year 2011 and 2013 by the principal one Dr. Gyan Kaur Yadav in his favour to look after her property including her family home, i.e., a three storeyed building situated at B/17, Road No. 12, Rajendra Nagar, Patna since the principal along with her family was living in the United Kingdom. It was stated that the principal had acquired the property at Rajendra Nagar, Patna from her husband, namely Dr. Desh Gaurav Yadav, who had passed away in the year 2008, through a registered deed in her favour, which was executed in presence of the witness namely one Kumar Indradev in the year 1985. Subsequently thep roperty was duly mutated in the name of the principal-Dr. Gyan Kaur Yadav. The husband of the principal much prior to his death in the year 1999, had executed a POA in favour of the Kumar Indradev to look after the property situated at Rajendra Nagar. It was also stated that the principal Dr. Gyan Kaur Yadav and her husband had two sons namely Gurvindar and Surender and one daughter Manjit Kaur.  

Later, it was alleged that on the strength of the POA when the complainant went to deposit the holding tax with the Patna Municipal Corporation, it came to his knowledge that the property at Rajendra Nagar was mutated in the name of one Kumar Gyanendra who was said to be the son of late Dr. Desh Gaurav Yadav, whereas he was actually the son of the aforesaid Kumar Indradeo, who was previously given POA by the husband of the principal, i.e., late Dr. Desh Gaurav Yadav in his lifetime. Upon learning of this illegal mutation, the complainant filed an application under the Right to Information Act, 2005 before the Bankipur Circle Office and received a response that the name of Kumar Gyanendra was mutated vide Mutation No. 288/19A/2004-05 in Circle No. 29, Holding No. 687 in the year 2005 itself. It was alleged that the illegal mutation in favour of Kumar Gyanendra was effected asserting falsely that he was the son of Dr. Desh Gaurav Yadav however, he was the son of the Kumar Indradev. The complainant accordingly informed the principal Dr. Gyan Kaur Yadav and thereafter upon instructions of the aforesaid principal, the complainant filed a complaint case No. 1118 of 2012 against Kumar Indradeo and his son Kumar Gyanendra, wherein cognizance was taken under sections 420, 467, 468, 471, and 120B of the IPC against the two persons and the complainant also filed an Appeal against the illegal mutation, before the Commissioner, Patna Municipal Corporation, which was numbered as Appeal No. 17 of 2012. 

The Additional Commissioner, Patna Municipal Corporation had remanded the matter back to the Executive Officer for fresh consideration holding that the house owner was neither informed nor the succession was minutely examined. The Additional Commissioner also duly noted that the house owner (principal) Dr. Gyan Kaur Yadav was shown to have passed away on November 7, 2004 whereas a VISA was issued to her on December 27, 2007. 

The complainant thereafter alleged that the petitioner-the Executive Officer in connivance with other accused persons got a report dated February 16, 2013 from the Revenue Officer wherein the Kumar Gyanendra was falsely and incorrectly shown to be the son of the husband of the principal Dr. Desh Gaurav Yadav and they had deliberately ignored the documents adduced by the complainant such as, family certificate issued at Darbhanga proving that Kumar Gyanendra was not the son of the husband of the principal, i.e., late Dr. Desh Gaurav Yadav. It was alleged in the complaint that subsequently, the petitioner in connivance with other accused persons passed a cryptic order wherein the further proceedings were stayed till the disposal of the Title Suit No. 507 of 2011 to unduly favour Kumar Gyanandra and his faher Kumar Indradeo. It was also alleged that the accused persons in collusion with Kumar Gyanandra and his father Kumar Indradeo also issued holding tax receipts bearing the name of Kumar Gyanandra wherein his parentage was shown incorrectly as Dr. Desh Gaurav Yadav instead of his actual father Kumar Indradeo.

The C.J.M, Patna vide order dated April 5, 2014 had forwarded the complaint case under section 156(3) Cr.P.C for investigation to the Kadamkuan Police Station and thereafter the present F.I.R in Kadamkuan P.S. Case of 2014 was registered on May 24, 2014 against two accused persons including the petitioner. 

The counsel for the petitioner submitted that the petitioner was serving as the Executive Officer at the Circle Office, Bankipur, Patna Municipal Corporation and under such authority and in discharge of his duties, he passed the order of stay. He submitted that the petitioner being the Executive Officer had passed the stay order dated June 27, 2013 observing that with regard to the same property situated at Rajendra Nagar a Title Suit of 2011 was also pending and the house, in question, being in possession of Kumar Gyanendra, the revenue court had no jurisdiction to decide the title and therefore, had kept the proceeding of the case pending till the final disposal of the aforesaid Title Suit. He submitted that the core allegation as against the petitioner was that he had passed the aforesaid order dated June 27, 2013 which was cryptic in nature staying the proceedings before him till the disposal of the Title Suit in collusion with the opponents of the complainant for extraneous considerations, however he had emphasised that the order of stay was passed by the petitioner in exercise of his quasi judicial authority and the same can be assailed/appealed before the superior authority in accordance with law, which in fact was done and an appeal had been preferred before the Additional Commissioner, Patna Municipal Corporation. 

It was the contention of counsel for the  petitioner that merely passing an order for stay, in discharge of his official duties, could not lead to initiation of criminal proceeding on the basis of mere imputations of collusion with the beneficiaries of the mutation which was in fact carried out much prior to the petitioner even joining the post as the Executive Officer in the Circle Officer, Bankipur. The counsel for the petitioner pointed out that upon a bare perusal of the complaint petition, it would clearly manifest that the fraud was actually committed by Kumar Gyanendra and his father Kumar Indradeo with respect to the property of the principal situated at Rajendra Nagar and the present petitioner was in no way involved in any alleged fraud whatsoever. It was also emphasised that the mutation of the property situated at Rajendra Nagar was effected in the year 2005 itself and the consequent holding tax receipts were issued in the same year in favour of Kumar Gyanendra by the then Executive Officer one R.P Gupta and pertinently the petitioner was not posted in the aforesaid office at the relevant time when the mutation was carried.

It was submitted by the counsel for the petitioner that the impugned sanction order was passed without considering the legal opinion sought by the sanctioning authority. Since the impugned order for sanction was passed de hors the legal opinion wherein unequivocal stand had been taken that the actions of the petitioner cannot be characterized as malafide and that the petitioner never acted beyond his jurisdiction while passing the order of stay, it was therefore submitted by the counsel for the petitioner that no grounds for granting sanction against the petitioner exists in light of the section 197 Cr.P.C. which protects the public servants from vexatious prosecutions and consequently the impugned order of sanction for prosecution is bad in law and cannot be sustained. 

In support of his submissions the counsel drew strength from the decision of the Supreme Court in the case of D. Devaraja vs. Owais Sabeer Hussain, (2020) 7 SCC 695, B. Saha vs. M.S. Kochar, (1979) 4 SCC 177 and Gurmeet Kaur vs. Devender Gupta, 2024 SCC OnLine SC 3761.

The counsel for the petitioner submitted that the impugned order of sanction was passed in complete violation of the provisions contained in section 2 and 3 of the Judges (Protection) Act, 1985. Adverting to its provisions, he submitted that the petitioner acting as a quasi judicial authority was shielded and no civil or criminal proceeding against the petitioner could have been initiated since the actions of the petitioner was clearly within the ambit of bona fide discharge of his official duties. The counsel for the petitioner had also drawn attention of the High Court to section 77 of the Indian Penal Code to argue that the impugned sanction is in the teeth of the aforesaid section 77 of the IPC. He pointed that the complainant on the strength of the POA in his favour had earlier instituted a separate complaint case bearing complaint case no. 1118 of 2012 against Kumar Gyanendra and his father Kumar Indradeo, wherein the Trial Court had already taken cognizance. In the earlier complaint case the petitioner was not arrayed as an accused. It was only subsequently that the complainant had instituted this complaint case against the petitioner being the Executive Officer and the co-accused being the Revenue Officer in the year 2014. He submitted that the present criminal proceedings was initiated only to settle a personal score among the parties who are fighting over the property at Rajendra Nagar and no prima facie case is made out against the petitioner. Reliance is also placed on the judgment of the Supreme Court in Awdesh Sriwastava vs. State of M.P. reported as 2025 SCC OnLine SC 693.

Justice Kumar observed: "The petitioner while discharging his duty as the Executive Officer in the Circle Office, Bankipur, Patna had passed the order dated 27.06.2013 staying the proceedings of Mutation case till the conclusion of the Title Suit No.507 of 2011 since the same parties were ventilating their dispute in the aforesaid title suit for the very same property. There is no dispute that the aforesaid order dated 27.06.2013 has been passed by the petitioner in discharge of his official duty upon remand from the appellate authority." He referred to the decisions that have examined the question of applicability of the Judges (Protection) Act, 1985 to revenue authorities. In this regard, the High Court of Chhattisgarh in Rajkumar Tamboli vs. State of Chhattisgarh & Anr. reported as 2024 SCC OnLine Chh 3651 delved deeply into the Judges (Protection) Act, 1985 and its applicability to revenue officers.

Justice Kumar observed: "....it is quite vivid from definition of Section 2 of the Act of 1985 that the petitioner was empowered to give definite judgment in revenue proceeding. The petitioner at the relevant point of time was empowered to pass an order of mutation of subject land in the names of purchasers (co-accused) under Sections 178 and 110 of the Code respectively and he would fall within the meaning of person under Section 2(a) of the Act of 1985 who is empowered by law to give definitive judgment in revenue proceeding. 23. The question for consideration would be, whether the petitioners are entitled for protection under Section 3 of the Act of 1985 ?"

In Union of India vs. Upendra Singh (1994) 3 SCC 357, the Supreme Court held that even an officer, while discharging judicial or quasi-judicial duties, is amenable to the disciplinary proceedings into his conduct in discharge of the duty.

Justice Kumar underlined that "it is patently clear that the petitioner would fall within the ambit of protections afforded by the Judges (Protection) Act, 1985. The protection is obviously not absolute and the State or appropriate authority could proceed against an erring officers in terms of section 3(2) of the aforesaid Act. 31. The order of stay passed by the petitioner which forms the basis for initiating the criminal prosecution is appealable before the appellate authority and any error committed by the petitioner therein could have been rectified by the appellate authority. From the records, it appears that an appeal was preferred agianst the order passed by the petitioner. The present petitioner by his order had stayed the mutation proceedings which was before him on remand from the appellate authority since there was a dispute over the title of the subject property. If the parties to the mutation proceedings were aggrieved by the order of stay passed by the petitioner then they could have availed remedies available under the law to assail the aforesaid order of stay. A bald statement that the order of stay passed by the petitioner being in favour of one of the parties to the mutation proceedings would not suffice to initiate a criminal prosecution against the petitioner. The criminal prosecution launched solely for passing an order of stay by the petitioner while discharging his duties, in the mutation proceedings simpliciter would squarely amount to malafide prosecution. 32. Further, in the present case, the sanction order is totally silent as to the circumstances under which the protection afforded to the petitioner from vexatious prosecution are required to be stripped. Moreover, the impugned sanction order also makes no mention of any material which would warrant initiation of criminal proceeding against the petitioner for staying the mutation case proceeding until the conclusion of the Title Suit which existed for the very same subject property. The substance of why a sanction is required to be passed for criminal proceedings was however entirely missed and skipped by the sanctioning authority, more so, when the petitioner was protected under the ambit of Judges (Protection) Act, 1985. Therefore the impugned order of sanction suffers from clear non-application of mind and can not be sustained."

Supreme Court sets aside bail denying order by Justice Sandeep Kumar in NDPS case

In Arjun Kumar @ Arjun Kumar Sah vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices M.M. Sundresh and Satish Chandra Sharma passed a 4-page long order dated December 15, 2025 wherein it granted leave. The appellant had approached the Supreme Court seeking bail in connection with a FIR of 2024 dated October 1, 2024, registered with Police Station Manpur, District West Champaran, Bettiah for the offences punishable under Sections 8, 20(b) (ii)(C), 23(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.  The case was filed on September 16, 2025 and registered on December 16, 2025. Prior to this SLP(Crl) No. 016096 / 2025 was registered on October 10, 2025. 

The Court observed:"We have heard the learned counsel appearing for the parties. Taking note of the fact that there is no criminal antecedent in which the appellant is stated to have been involved and the period of incarceration already undergone by the appellant, we are inclined to grant bail to the appellant. Accordingly, the impugned order is set aside and the appellant is granted bail on terms and conditions to the satisfaction of the concerned Trial Court. The appeal stands allowed, accordingly."

Justice Sandeep Kumar of Patna High Court had passed the impugned 2-page long order dated April 19, 2025, which has been set aside by the Supreme Court. Justice Kumar had dismissed the application for bail. The petitioner had approached the High Court seeking bail in connection with a P.S. case of 2024 registered for the offence punishable under Sections 8, 20(b)ii(c), 23(c), 25 and 29 of the NDPS Act. 3. As per the prosecution case, 69.61 Kg of ganja and 1 kg of charas was recovered from the vehicle. The petitioner was travelling in a car in front of a vehicle from which ganja was recovered. The co-accused Munna Patal and Rambabu Ram had given a statement before the police that it was Arjun Kumar who was smuggling the banned articles and was in consent touch with Munna Patal and Rambabu Ram. The petitioner was in custody since October 1, 2024. Justice Kumar had concluded: "5. Considering the fact that the petitioner is involved in smuggling of huge quantity of ganja and charas and was caught, I am not inclined to grant bail to the petitioner. 6. Accordingly, the application stands dismissed."

Justice Sandeep Kumar directs Director General, Directorate of Revenue Intelligence to compensate the petitioner reasonably in a NDPS case

In Nurul Hasan Khan vs. Union of India through the Director General, Directorate of Revenue Intelligence (D.R.I) New Delhi & Ors. (2025), Justice Sandeep Kumar of Patna High Court delivered a 20-page long judgement dated October 17, 2025 concluded:''34. Considering the fact that the petitioner was deprived of his vehicle (crane) unlawfully which was his source of income and livelihood and the crane of the petitioner was sold behind his back without following the due process of law, this Court deems it appropriate and in the interest of justice that it is a fit case to compensate the petitioner reasonably.'' He allowed the criminal appeal. The other two respondents were:Assistant Director, Directorate of Revenue Intelligence, Regional Unit, Patna and Intelligence Officer, D.R.I., Regional Unit, Patna.

Justice Kumar directed the respondent authorities to pay an amount of Rs.3,00,000/- which has been valued by the respondent authorities with interest at the rate of 8% per annum from the date on which the vehicle has been seized. The payment must be made in favour of the petitioner within eight weeks from today. He concluded:''this Court directs the respondent authorities to pay a cost of Rs.1,00,000/- (Rupees One Lakh) in addition to the aforementioned amount, as indicated in the proceeding paragraph, to the petitioner within a period of eight weeks from today.''

The judgement observed:''35. This Court has noticed that the respondents on the one hand had found that the petitioner or his driver/helper were not involved in the crime and on the other hand they have moved an application for pre-trial disposal of the crane of the petitioner. Therefore, this Court finds that the action of the respondents in disposing the crane of the petitioner without any notice to him as wholly arbitrary. The respondents have further failed to inform the learned trial court that the actual owner of the crane, having not been arrayed as an accused, was not before it and the order of the disposal of the crane was passed to the prejudice of the petitioner.'' 

The criminal writ application was filed for a direction upon the respondent authorities to pay appropriate compensation to the petitioner for arbitrarily and illegally disposing/selling of the crane of the petitioner bearing registration No. BR2H 6948. According to the petitioner, the action of the respondent authorities in illegally disposing /selling of the said crane was in complete violation of the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 as well as the settled principle of law. 

It was the case of the petitioner that he was the owner of a crane bearing registration no. BR2H 6948, which was used for towing vehicles as his source of income. According to the petitioner, on June 6, 2019, the Chowkidar of Aurangabad (M) Police Station called the petitioner for towing a Bolero Pickup van which had met with an accident at Karhara More, G.T. road en route to Patna and upon his request, the petitioner provided his crane for towing of the said Bolero to Patna.

The senior counsel for the petitioner submitted that based upon a secret information, the Directorate of Revenue Intelligence intercepted the Bolero Pick-up van bearing registration No. BR-6GD/5751 near D.R.M. Office, Danapur Station, Saguna More Road, Patna, which was being towed by the crane belonging to the petitioner. In the crane, two persons were present namely, Md. Salamat Murtuza, who was the driver of the said crane and Md. Faiz, who was the khalasi (helper) of the said crane. Upon search of the Bolero pickup Van which was being towed by the petitioner's crane, the D.R.I. officials seized 47 crates of mangoes and 06 jute and 28 plastics sacks containing a total of 141 brown coloured packets containing substance believed to be ganja from the said Bolero Pick up van. He also submitted that thereafter the statements of said two persons namely, Salamat Murtuza and Md. Faiz were recorded under section 67 of the N.D.P.S. Act, wherein they had stated that they did not have any knowledge about the recovered ganja and the same was not recovered from their conscious possession and they were merely towing the Bolero pickup van on the direction of the owner of the said crane. On being called by the D.R.I officials, the petitioner appeared in the D.R.I office and his statement was also recorded under section 67 of the N.D.P.S. Act, in which he had stated that he did not have any knowledge about the said ganja recovered from the Bolero pick-up van which had met with an accident and he was told that mangoes were loaded on it.

It was submitted by the senior counsel for the petitioner that the crane of the petitioner was seized on June 7, 2019 and the statement of the petitioner was recorded on the same day and thereafter the prosecution report was submitted on June 8, 2019 wherein it was categorically stated that based on the evidence gathered during the proceedings and the statements of the petitioner, his driver and khalasi(heloper), it was found that neither the petitioner nor his driver or khalasi were involved in the illicit trade of ganja but on June 1, 2019, the same officer i.e. respondent no. 3, filed an application for pre-trial disposal of the said crane besides the Bolero Pick up without any intimation or notice to the petitioner and ultimately, by an order dated June 3, 2019 passed by the court of learned Special Judge, Patna in Special Case No. 59 of 2019, the respondent no.3 was granted permission for disposing the crane of the petitioner. Therefore, it is submitted that the crane of the petitioner was unlawfully auction sold by the respondents.

The petitioner's senior counsel submitted that since the petitioner or his driver and Khalasi (helper) were not made accused in the instant case by the D.R.I., it was incumbent upon the DRI to release the crane of petitioner seized by them since it was not liable to be confiscated. Thus, the respondents by seizing the crane, after coming to the conclusion that the petitioner was not involved in the present case, have committed a gross illegality. He also submitted b the respondents while disposing of the crane of the petitioner have grossly violated section 52A of the N.D.P.S. Act, which deals with disposal of narcotic drugs and psychotic substance. Therefore, it was the submission of the petitioner that the respondents in the garb of seized narcotics drugs and psychotic substance disposed of the crane of the petitioner by way of auction sold, which admittedly as per their own version was not involved in illicit trade of ganja. 

The senior counsel submitted that prior to disposing the crane of the petitioner, neither the respondents issued/served any notice to the petitioner nor gave any opportunity of being heard. Moreover, the DRI also did not inform the trial court that neither the petitioner nor his driver and khalasi were found to be involved in the present case and thus the DRI also mislead the trial court and obtained the order dated August 3, 2019 by suppressing the material fact, by which the pre-trial disposal of the crane of the petitioner was allowed. The respondents in their counter affidavit categorically admitted that the involvement of the petitioner in the illicit trade of ganja was not established but the respondents still went ahead and auction sold the crane of the petitioner. 

The senior counsel for the petitioner submitted that section 52A of the N.D.P.S. Act deals with disposal of seized narcotic drugs and psychotropic substance and in view of the aforesaid section, the action of respondent in disposing of the crane of the petitioner is absolutely illegal, unwarranted and against the provision of the Act. He also submitted that as per the inventory of the seized crane prepared, which is annexed as Annexure-4, the crane was found in good condition, still the respondents under-valued the crane for Rs. 3,00,000/- and sold it on a throw away price. The respondents have disposed of the crane of the petitioner and this fact came to the knowledge of the petitioner only after passing of the order dated December 2, 2021. Therefore, the action of respondents in auction selling of the crane of the petitioner was blatantly illegal, arbitrary and has caused great suffering to the petitioner as well as affected his livelihood as the operation of crane was his source of income and same has caused physical, mental agony and financial loss to the petitioner. Thus, it was submitted that the petitioner was liable to be fairly and adequately compensated by the respondents for illegally and arbitrarily auction selling his crane.

A counter affidavit was filed on behalf of the respondent - D.R.I. wherein the facts relating to the N.D.P.S. has been mentioned and thereafter, it was stated that based on the evidences gathered such as, CDRs. of the petitioner, his driver and khalasi were scientifically analyzed and on the basis of the analysis it was found that no connection could be established between the petitioner, his driver and khalasi and the actual owner of the seized contraband i.e. ganja. 

Justice Kumar's judgement quoted the relevant para no.9 of the counter affidavit, which reads:“9. That under the circumstances explained above, on the basis of evidences gathered during the whole proceedings and as per statement of the above said persons drawn under Section 67 of the NDPS Act, 1985, conscious involvement of the above said persons namely Salamat Murutza (driver of the disputed vehicle) and Md. Faiz (khalasi of the disputed vehicle) as well as Nurul Hasan Khan, owner of the said crane in the illicit trade of the Ganja could not be established. Hence, the driver of the crane, his cousin brother and the owner of the crane was not arrested. Hence, they were accordingly released without causing any loss or injury to them with their consent that as and when their presence will be required in course of the investigation of the case, they will accordingly cooperate in the investigation. Intimation for recovery of ganja was prepared and the same was duly intimated to the Court of Sessions Judge-cum-Special (N.D.P.S. Act) Patna on 10.06.2019.”

The counsel for the respondents submitted that after passing of the order dated August 3, 2019, the D.R.I. had forwarded the matter to the Customs Department to auction the seized goods and thereafter as per the procedure, the reserved price of the crane was fixed on August 13, 2019 by the Joint Pricing Committee. Thereafter, in terms of the provisions of the Disposal Manual, 2019 the aforesaid crane was e-auctioned in favour M/s. Kushwaha Enterprises being the highest bidder and accordingly, the sale was confirmed. Therefore, it is pointed out that the Customs Department did nothing but carry out the orders dated August 3, 2019 of the trial court as per the procedure of the Disposal Manual, 2019. It was also submission of the respondents that the petitioner had approached the trial court for the release of his crane after passing of the order dated August 3, 2019 for pre-trial disposal of the crane. Further, no procedural irregularity was pointed out in the e-auction process which was done as per by Disposal Manual, 2019. Moreover, the crane of the petitioner was towing the Bolero pickup van, in which narcotic substance i.e. ganja was recovered and as such, the crane was the conveyance, which was used to transport the narcotic substance which is liable to be confiscated under section 60(3) of the N.D.P.S. Act and a similar provision was there under section 115(2) of the Customs Act, 1962. 

It was also submitted that the petitioner was never denied that his crane was not transporting/towing the Bolero pickup van from which contraband ganja was recovered and the trial of the case is still gong on and the matter was sub-judice. The crane of the petitioner was auction sold under the order of pre-trial disposal and as such, after completion of the trial, the trial court may order for deposit of the sale amount or its confiscation, on completion of trial and as such, payment of the amount to the petitioner may not be made and if at all ordered, the same may be done after taking appropriate security awaiting the final decision of the trial court. It was submitted that order dated August 3, 2019 by which the pre-trial disposal of the crane of the petitioner was allowed was belatedly challenged by way of filing an interlocutory application before the High Court and the order dated February 2, 2021 by which the trial court had rejected the petition of the petitioner for release of his crane remains unchallenged till date and as such, the relief, as prayed for, was untenable.

The counsel for the respondents had relied on a decision of the Supreme Court in Union of India vs. Mohanlal and Anr. reported as (2016) 3 SCC 379. 

Justice Kumar recorded that pursuant to the order dated November 14, 2022 passed by a coordinate Bench of the Patna High Court, an affidavit was sworn and filed by the Joint Commissioner, Customs wherein the procedure adopted for auctioning the crane of the petitioner was brought on record.

Justice Kumar quoted Paragraph nos. 13 to 16 of the counte  affidavit filed by the Assistant Commissioner (Legal, Customs (P), Patna. It reads: “13. That Notification No.75/2003-Customs (N.T.) dated 12.09.2003 has been issued under Section 27A of the Customs Act, 1962 which stipulates the rate of interest payable by the Department to the applicant on any delayed refund beyond 3 months payable by the Department. 14. That it is further humbly stated that Notification No.33/2016-Customs (N.T.) dated 01.03.2016, which prescribes the applicable rate of interest payable by a person liable to pay any duty under the Customs Act, 1962, shall, in addition to such duty be liable to pay interest, if any, at the rate fixed on delayed payment which has been fixed vide the aforesaid Notification and is being respectfully submitted for the kind perusal and consideration of this Hon'ble Court. 15. That it is further humbly stated that the Hon'ble Bombay High Court in the matter of M/s Ajay Industrial Corporation Ltd. Vs. Deputy Commissioner of Customs (writ petition No. 13314 of 2024) vide Judgment dated 15.10.2024 were please to grant 6% interest. 16. That the Department undertakes to ensure that such lapses do not reoccur in future and necessary steps are being taken to streamline internal communication processes. Necessary Department action has been initiated against the officers concerned for grave lapses.”

Justice Kumar observed: ''24. In the present case, the D.R.I. had intercepted a Bolero vehicle was being towed by the crane of the petitioner and from the aforesaid Bolero vehicle ganja was recovered. Consequently, a criminal case was initiated under the N.D.P.S. Act wherein along with seized articles, the crane of the petitioner was also seized. After an investigation, the role of the petitioner and his driver/ helper was not found in the crime. Consequently, they were not arrayed as an accused." 

On August 1, 2019, the Special P.P. had moved an application before the trial court for disposal of the vehicles including the crane of the petitioner. Thereafter, the trial court passed the order dated August 3, 2019 in the Special Case No.59 of 2019. The order reads: “A petition dated 01.08.2019 filed on behalf of the prosecution has been moved today praying therein to pre-trial disposal of (1) Bolero Pick-up bearing Registration No. BR 06GD-5157 along with the Crane bearing Registration No.BR 2H-6948 on which crates of mangoes was found loaded. (2) 683.8500 Kg Ganja (3) 540 Kg Mangoes, seized in this case, on the basis of authorization of Directorate of Revenue Intelligence (DRI) to the Sp.LPP for obtaining pre-trial disposal order, in which certification of seized goods (Narcotic drugs) had already been done, from the Court's concerned. Heard Sri Krishna Kant Tiwari, the learned Spl.P.P. From perusal of the recved, it transpires that certification of the recovered Narcotic substance and other articles including the vehicles has already been done by Sri Sukul Ram, ACJM-13, Patna whose report, in this regard is already on record. Hence, is the light of submission as prayed for, prayer is allowed. It is therefore, ordered that the concerned authorities are permitted to dispose of the (1) Bolero Pick-up bearing Registration No. BR 06GD-5157 as well as Crane bearing Registration No. BR 2H-6948, (2) 683.8500 Kg Ganja (3) 541 Kg Mangoes, seized in this case, as per rule.”

Justice Kumar observed: ''26. Pertinently, the petitioner was not arrayed as an accused in the N.D.P.S. case. Being unaware of such an order for disposing of his crane, being passed, the petitioner moved before the trial court seeking release of his vehicle and at that time he came to known about disposal of his crane." 

The order dated December 2, 2021 passed in Special Case No.59 of 2019 reads: “Learned counsel for the petitioner Nurul Hasan submits that in this case a crane bearing registration no. BR 2H 6948 has been seized by DRI Regional Unit Patna on the ground that unclaimed ganja was recovered from accidental Bolero pickup bearing registration no. BR 06GB 5197 which was towed by the crane. It has also been submitted that the crane has no concerned with the alleged ganja and during investigation the petitioner was not found liable to be arrested and was accordingly released by the intelligence officer. In the light of these submissions, it has been prayed that the crane be allowed to be released. Learned Spl. P.P. opposes the prayer by submitting that the petition is not maintainable because this court vide its order dated 03.08.2019 has ordered for disposal of the said crane and Bolero Pickup and along with the seized ganja and all of these have already been disposed of. The said crane has been auctioned sold. Therefore, its release is not possible. On perusal of the second is clear that this court vide its order dated 03.08.2019 itself has allowed for disposal of the said crane. Once the crane has been disposed of it can not be a subject matter of release. As far as the question of realization of amount of sale by its lawful owner is concerned then the petitioner is at liberty to file proper petition at appropriate form. With this observation the petition is disposed off.”

The High Court's judgement dated October 17, 2025 reads: ''27. From the perusal of the afore-quoted orders, it is clear that the present petitioner, who is the owner of the crane in this case, had not been heard before his vehicle i.e. the seized crane in question, was disposed and was subsequently auction sold. The order dated 03.08.2019 wherein the application dated 01.08.2019 was considered only records the appearance of the learned Spl. P.P. therein and neither notice had been issued to the owner of the crane i.e. the present petitioner nor any opportunity has been afforded to him.''

Section 60 of the N.D.P.S. Act reads: “60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.- (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substances, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.”

Justice Kumar observed:''the Article 300A of the Constitution of India also protects the property of the petitioner and he cannot be deprived of his property save and except in accordance with law.'' His judgement recorded: ''31. In the counter affidavit filed by the D.R.I. it has categorically been stated that upon investigation it was found that the petitioner and his driver/khalasi (helper) were not involved in the illicit trade of ganja and therefore, none of them were arrayed as an accused. 32. Since the petitioner was not an accused in the N.D.P.S. case, it was the duty of the prosecuting agency to bring this fact to the notice of the trial court that the owner of the crane in question was not before it while the court was considering the application for pre-trial disposal of the crane of the petitioner and therefore, the order dated 03.08.2019 ought not to have been passed without hearing the petitioner who is the bona fide owner of the crane in question.''

Notably, Section 60(3) of the N.D.P.S provides for confiscation only when the vehicle in question was knowingly being used for illicit purposes. Section 60 provides that any conveyance used in carrying any narcotic drug or psychotropic substance or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent or any person in-charge of the conveyance and that all such persons had taken all reasonable precautions against such use. 

It is apparent from the provisions under Section 60 (3) that if the owner of the vehicle/conveyance proves that his vehicle was used in the commission of the offence without his knowledge or connivance and he has taken all reasonable precautions against such use, the conveyance cannot be confiscated despite it being used in the commission of the alleged offense under the NDPS Act.

Supreme Court sets aside Allahabad High Court order directing NCB to compensate NDPS accused under Section 439 of CrPC

In Union of India Through I.O. Narcotics Control Bureau v. Man Singh Verma 2025 INSC 292, Supreme Court's Division Bench of Justice Sanjay Karol and Justice Manmohan concluded: "we accept the submission of the Union of India that grant of compensation to the tune of Rs.5,00,000/- was without the authority of law. The order of the High Court, therefore, to this extent has to be set aside. Ordered accordingly. Appeal is allowed partly. The observations made hereinabove should not be taken to preclude any remedy that may be available to the respondent as per law. Hence, our observations are limited only to the correctness of the grant of compensation in the adjudication of a bail application."

It observed: "It is a settled principle of law that the jurisdiction conferred upon a Court under Section 439 CrPC is limited to grant or refusal of bail pending trial. In the following decisions, this Court has time and again held that the sphere of consideration, when exercising power under this Section, pertains only to securing or restricting liberty of the person in question." 

The Allahabad High Court had asked the Director of Narcotics Control Bureau (NCB) to pay a sum of Rs 5 lakh as compensation to the respondent for the alleged wrongful confinement. NCB had challenged the impugned order of the High Court.

The Court took note of the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan (2004), wherein it was observed that at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of a case need not be undertaken. 

In State vs. M.Murugan (2020)15 SCC 251, Supreme Court reiterated that the Court’s jurisdiction is limited to grant or refusal to grant bail, pending trial. In this case, the High Court, while taking a decision on bail application, had retained the file and directed the State to form a committee and seek its recommendations on the reformation and rehabilitation of convict/accused persons. The Court held that while ordering such directions the High Court has committed grave illegality and held that the jurisdiction under Section 439 CrPC ends when the bail application is finally decided. The Court held as under :-

“11. We find that the learned Single Judge [M. Murugesan v. State, 2019 SCC OnLine Mad 12414] has collated data from the State and made it part of the order after the decision [M. Murugesan v. State, Criminal Original Petition No. 1618 of 2019, order dated 18-2-2019 (Mad)] of the bail application, as if the Court had the inherent jurisdiction to pass any order under the guise of improving the criminal justice system in the State. The jurisdiction of the court under Section 439 of the Code is limited to grant or not to grant bail pending trial. Even though the object of the Hon'ble Judge was laudable but the jurisdiction exercised was clearly erroneous. The effort made by the Hon'ble Judge may be academically proper to be presented at an appropriate forum but such directions could not be issued under the colour of office of the court.”

Section 439 of CrPC reads: “439. Special powers of High Court or Court of Session regarding bail.—(1) A High Court or Court of Session may direct,— (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; 

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: 

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. 

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under subsection (3) of section 376 or section 376AB or section 376DA or section DB of the Indian Penal Code (45 of 1860).] 

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

The Division Bench added:"The undue restriction of liberty, i.e., without the backing of procedures established by law is unquestionably an affront to a person’s rights but the avenues to seek recourse of law in connection therewith are limited to remedies as per law. However, none was availed in the present facts”. 

It stated, “As such, we accept the submission of the Union of India that grant of compensation to the tune of Rs.5,00,000/- was without the authority of law. The order of the High Court, therefore, to this extent has to be set aside. Ordered accordingly. Appeal is allowed partly.” The judgement was authored by Justice Karol and delivered on February 28, 2025. 

In the case in question, the NCB had seized 1280 grams of brown powder (allegedly heroin) from the possession of one Man Singh Verma (respondent herein) and one Aman Singh. A Criminal Case was registered against the respondent under Sections 8(C), 21 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. While awaiting the results of the samples from the laboratory, the respondent filed an application seeking bail but the same was rejected. Consequently, the respondent approached the High Court. The Central Revenue Control Laboratory's report showed that the sample tested negative for heroin and other narcotic substances.

The report from Central Forensic Science Laboratory, Chandigarh revealed that the second set of samples also tested negative for any narcotic substance. The NCB filed a closure report before the Special Judge, NDPS, pursuant to which the respondent was released from the District Jail. 

Unmindful of the respondent’s release, the High Court had proceeded to adjudicate the pending bail application and, by the impugned order, observed that the respondent was a young person who had been wrongfully confined for four months despite the initial laboratory finding. The High Court had directed the Director, NCB to pay Rs.5,00,000 as compensation to the respondent. 

The fact remains the principle of awarding compensatory relief for the violation of fundamental rights by public officials was recognized in Rudal Sah vs. State of Bihar (1983) 4 SCC 141; Nilabati Behera vs. State of Orissa (1993) 2 SCC 746; and D.K. Basu v. State of West Bengal (1997) 1 SCC 416 under Article 32 of the Constitution of India. 

Supreme Court elaborates on scope of exercise of power under Section 227, Cr.P.C, sets aside High Court's judgement in NDPS case

The appellant was accused of commission of offence under Section 27(a) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. After the investigation, a final report was filed against all the accused including the the appellant herein (accused No.13) was charge sheeted only for offence under Section 27(b) of the NDPS Act. The order dated September 14, 2022 passed by Madras High Court filed against the order dated July 26, 2022 passed by the Additional District Judge (ADJ)-Special Court under Essential Commodities Act Cases, Coimbatore under Section 227 of the Code of Criminal Procedure (Cr.P.C.), 1973 to discharge him. As per the order dated July 26, 2022, the application for discharge filed by the appellant was dismissed. The Revision Petition filed against it was also dismissed.

While hearing the appeal, the Supreme Court's bench of Justices C.T. Ravikumar and  Rajesh Bindal dwelt on the scope of exercise of power under Section 227, Cr.P.C. It drew on the Court's decision  in P. Vijayan v. State of Kerala & Anr.(2010). The Court held:Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:
“227. Discharge. — If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

The Court observed: "At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 

The Court also drew on Court's decision in Sajjan Kumar v. Central Bureau of Investigation (2010) to consider the scope of Section 227, Cr.P.C. 

The Court observed: "The position of law enunciated in the said decisions would reveal that while calling upon to exercise the power under Section 227, Cr.P.C., the judge concerned has to consider only the record of the case and the documents produced along with the same. If on such consideration the court forms an opinion that there is no sufficient ground to proceed against the accused concerned, he shall be discharged after recording the reasons therefor. It is also evident from the precedence on the aforesaid question that while exercising the said power, the Court could sift the materials produced along with the final report only for the purpose of considering the question whether there is ground to proceed against the accused concerned."

The Court's judgement concluded that the appeal is allowed and the order passed by the Madras High Court filed against the order passed by the ADJ are quashed and set aside. As a necessary sequel, the appellant who is accused in pending on the files of Additional District Judge-Special Court under Essential Commodities Act Cases, Coimbatore is discharged from the said case, by allowing the prayer of appellant for discharge.

Supreme Court quashes judgments, orders of High Court and Special Judge, Kurukshetra against Haryana IPS officer, Bharti Arora in NDPS case

Supreme Court's bench of Justices B.R Gavai, P.K Mishra and K.V. Viswanathan delivered a judgement on December 13, 2024 quashing the judgments and orders of High Court and Special Judge, Kurukshetra against Haryana IPS officer Bharti Arora in a proceedings initiated against the her for the offence punishable under Section 58 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The Special Judge had recorded the findings against the appellant as well as the other police officers without even issuing notice to them. Notably, on October 26, 2010, the Court had stayed the High Court's judgment and order which had refused to interfere with the Special Judge, Kurukshetra and upheld the order dated May 30, 2008. The High Court's order dated May 19 2008 had refused to entertain the revision with the observation that the order passed by the learned Special Judge should not be construed as an expression of opinion on the merits of the matter.

Justice Gavai who has authored the 39-page long judgement observed that the Special Judge had acted in a predetermined manner. The "Special Judge had given a complete go-bye to all the principles of natural justice. It is a well-settled principle of law that justice should not only be done but should be seen to be done." He underlined that the "Special Judge could not have conducted the proceedings against the present appellant for the offence punishable under Section 58 of the NDPS Act inasmuch as such proceedings could have been conducted only by a Magistrate. Undisputedly, the procedure as required under Chapter XX i.e. Sections 251 to 256 of the Cr.P.C. has also not been followed." 

He recalled the Court's decision in State of West Bengal and Others v. Babu Chakraborthy (2004) 12 SCC 201 : 2004 INSC 492. In this case, the accused persons were convicted for an offence punishable under the NDPS Act. In the appeal preferred by them, while allowing the appeal, the High Court made several strictures and observations against two officers of the West Bengal Police in an IPS Cadre. In the said case also, the allegations against the said officers were with regard to violation of provisions of Section 42 of the NDPS Act. The Court observed:"In our view, the High Court was not justified and correct in passing observations/strictures against Appellants 2 and 3 without affording an opportunity of being heard, and it is in violation of a catena of pronouncements of this Court that harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case. Likewise, the directions issued by the High Court to the trial court to lodge a complaint to the Magistrate having jurisdiction for prosecuting Appellants 2 and 3 for having committed an offence under Section 58 of the Act read with Sections 166 and 167 of the Penal Code, 1860 is not warranted. The observations made by the High Court are liable to be expunged and accordingly."

It cited the following passage from Jackson’s Natural Justice (1980 Edn.). It reads: “The distinction between justice being done and being seen to be done has been emphasised in many cases. . . .The requirement that justice should be seen to be done may be regarded as a general principle which in some cases can be satisfied only by the observance of the rules of natural justice or as itself forming one of those rules. Both explanations of the significance of the maxim are found in Lord Widgery, C.J.'s judgment in R. v. Home Secretary [(1977) 1 WLR 766, 772] , ex. p. Hosenball, where after saying that “the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done” he went on to describe the maxim as “one of the rules generally accepted in the bundle of the rules making up natural justice”. It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the court is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. In Altco Ltd. v. Sutherland [(1971) 2 Lloyd's Rep 515] Donaldson, J., said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or “to use the time hallowed phrase” that justice should not only be done but be seen to be done. In R. v. Thames Magistrates' Court, ex. p. Polemis [(1974) 1 WLR 1371] , the applicant obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defence to the charge. It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: ‘Well, even if the case had been properly conducted, the result would have been the same. That is mixing up doing justice with seeing that justice is done (per Lord Widgery, C.J. at p. 1375).”

The Court observed that the Special Judge acted, without even giving notice to her, only on the basis of the arguments advanced at the stage of final hearing of the matter, made adverse observations against her by almost finding her guilty of the offence punishable under Section 58 of the NDPS Act. While doing so, neither any notice nor was any opportunity of being heard given to her.

Calcutta High Court detects error in the verdict of judge, Malda Special Court under NDPS Act, grants default bail upon expiry of 180 days

In re: An application for bail under Section 439 of the Code of Criminal Procedure, 1973 / Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 And in the matter of Idul Mia, the petitioner, the Calcutta High Court's division bench of Justices Arijit Banerjee and Apurba Sinha Ray granted default bail on the grounds that the chargesheet submitted against him was submitted without a forensic report, within the statutory limit of 180 days. The Court gave this decision while dealing with an application for bail in a case of offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The judgment was delivered on October 8, 2024. 

The petitioner was charged with offences punishable under Sections 21C/25/27A/29 of the NDPS Act, 1985. He was arrested on January 31, 2024. He submitted that he became entitled to statutory bail on the 181st day since the charge sheet that was submitted on the 177th day without the FSL report, is not a valid charge sheet. The FSL report was not submitted, whether by way of a supplementary charge-sheet or otherwise within 180 days. He had applied for default bail on the 183rd day. The prayer for bail was rejected by the learned Trial Court. Consequently, the petitioner approached the High Court with an application for bail.

The petitioner's advocate relied on the following decisions: -
(i) Judgment and order dated 25/08/2023 passed in Rakesh Sha v. State of West Bengal, CRM (NDPS) 552 of 2023, reported at 2023 SCC OnLine Cal 2463,
(ii) Judgment and order dated 17/01/2023 passed by a Full Bench of Calcutta Court in Subhas Yadav v. State of West Bengal, CRM 146 of 2021 reported at 2023 SCC OnLine Cal 313.

The Advocate for the petitioner pointed out that the issue as to whether or not a charge sheet without the FSL report in a NDPS case can be termed as an ‘incomplete Report’ under Section 173 Cr. P.C. is pending before the Supreme Court in the case of Mohd. Arbaz & Ors. v. State of NCT of Delhi, Petition(s) for Special Leave to Appeal (Crl.) No(s).8164-8166/2021.

Notably, Mohd. Arbaz's case  was filed in the Supreme Court on October 4, 2021 against Delhi High Court's decision of Justice Vibhu Bakhru dated November 3, 2020. It was registered on October 25, 2021, verified on October 26, 2021 and admitted on May 1, 2024. This case has been tagged with other cases from Delhi, Kerala, Haryana, West Bengal, Punjab and Gujarat. It is pending before the 3-Judge bench of Justices Surya Kant, Sudhanshu Dhulia and Ujjal Bhuyan. It was last listed on July 18, 2024.  In its order of July 18, the Court observed: "In this batch of cases, the primary issue that arises for consideration is as to whether a chargesheet without the FSL/Examiner’s Report in a NDPS case can be termed as an `incomplete Report’ under Section 173 Cr.P.C.? During the course of hearing, it so transpired that various other questions of paramount public importance, with regard to the fairness and efficacy of the trials under the NDPS Act, also need to be resolved. Some of these issues have also been formulated by one of the learned counsel for the petitioners. One such issue pertains to the establishment of adequate FSL/Examiner Laboratories by the State Governments along with appointment of requisite technical staff to operate such laboratories. It seems to us that issues such as the current status of the FSL/Examiner’s Laboratories, creation of a robust mechanism for submission of the FSL/Examiner’s Reports within the stipulated period and the issue pertaining to follow up action taken by the States in compliance of the directions issued by this Court in Union of India vs. Mohan Lal & Anr., (2016) 3 SCC 379, etc. would require indepth consideration by us. Consequently, we propose to hear all the States and the Union Territories before any effective directions are issued. We, therefore, direct the Registry to issue notices to the Union of India, all the States and the Union Territories, returnable on 29.08.2024....The orders granting interim bail to the petitioners shall continue to operate until further orders."

The High Court referred to the provisions of Section 36-A (4) of the NDPS Act. It reads: “36-A. Offences triable by Special Courts-(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or  for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973(2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”. Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of accused beyond the said period of one hundred and eighty days.”

It also referred to the relevant portion of Sections 167 (1) and (2) of the Code of Criminal Procedure, 1973. It reads: “167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : Provided that –(a) [the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - [Substituted by Act 45 of 1978, Section 13, for paragraph (a) (w.e.f. 18-12-1978).] (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]” 

The Court observed: "We see that Section 167 prescribes the maximum period for which an accused can be remanded to judicial custody without charge sheet being filed. Section 36A(4) of the NDPS Act prescribes that reference to “90 days” in Section 167(2) Cr. P.C. shall be construed as reference to “one hundred and eighty days” for the purpose of NDPS cases. However, if investigation cannot be completed within the said period of 180 days, the Special Court may grant further time up to one year on the report of the public prosecutor indicating the progress of the investigation and the reasons for detaining the accused beyond the period of 180 days. Therefore, in an NDPS case, if charge sheet is filed within 180 days from the date of arrest of the accused, no right of statutory bail accrues in favour of the accused. The question is, what happens if the charge sheet is not accompanied by the Forensic Report? Would such a charge sheet satisfy the requirements of Section 36A (4) of the NDPS Act? On the aforesaid issue, there is divergence of opinion. A Division Bench of this Court in the case of Rakesh Sha (Supra) held that a charge sheet submitted within 180 days without the Chemical Examination Report with an observation that a supplementary charge sheet will be filed in future with the FSL report is beyond the contemplation of the proviso to Section 36A(4) of the NDPS Act. The Bench observed:- “filing of a charge-sheet without the Examination Report in relation to an offence under the NDPS Act is an exercise in futility and raises the presumption of the I.O filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36A(4) of the Act”.

The Division Bench had also observed: "The petitioner, before us, on the other hand, has been charged for commission of an offence under the NDPS Act which requires the Trial Court to take cognizance of the offence committed under the Act. This means that the CFSL/Laboratory Report becomes an essential and integral part of the investigation for establishing the charges under the NDPS Act. The Chemical Examination Report therefore becomes the most vital piece of evidence which is required to be made part of the charge-sheet.”

Notably, Advocate for the State had relied on a decision of a Single Judge of the Calcutta High Court in the case of Jagdish Singh v. The State of West Bengal and Anr., CRR no. 41 of 2024 dated July 18, 2024, in support of his submission that if the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete in the absence of FSL report.

The High Court has noted that the case of Jagdish Singh was a criminal revisional application filed by the accused person for quashing of the charge sheet which was filed without the FSL report. A Single Judge, noting that the issue as to whether or not in an NDPS case, a charge sheet filed unaccompanied by the FSL report is a valid charge sheet, is pending before the Supreme Court, disposed of the revisional application without passing any order. However, the Judge discussed various decisions of High Courts. It appears that the view of the Jammu and Kashmir High Court is that merely because the Expert’s Report does not accompany the final report, the charge sheet cannot be said to be defective or incomplete. If the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete, in the absence of FSL report. In this connection one may refer to the decision of the Jammu and Kashmir and Ladakh High Court in Abdul Majid Bhat v. UT of J&K MANU/JK/0285/2022. In that case reliance was placed on the decision of the Karnataka High Court passed in the case of Mr. Sayyad Mohammad @Nasim v. State of Karnataka & Anr., Writ Petition No. 5934/2021 decided on March 29, 2022. The Karnataka High Court observed that the petitioner did not get a right to default bail merely because the Charge Sheet / Final Report filed by the Police was without the FSL report. The view of the Bombay High Court also appears to be the same as the Jammu and Kashmir High Court. A Division Bench of that High Court in Manas Krishna T.K. v. State the Police Inspector/Officer-In-Charge & Anr., reported at 2021 SCC OnLine Bom 2955 held that in an NDPS case a police report containing the details prescribed under Section 173(2) Cr. P.C. is a complete police report or a charge sheet or a challan even if it is unaccompanied by a CA/FSL report. If such police report is filed within the period stipulated in Section 167(2) Cr. P.C., read with Section 36-A(4) of the NDPS Act, the accused cannot insist on default bail.  

The High Court observed: "We, therefore, see that while Jammu and Kashmir High Court as well as Bombay High Court have taken the view that the right of statutory bail does not accrue in favour of an accused if a charge sheet containing the particulars mentioned in Section 167(2) Cr. P.C. is filed within the stipulated time period, even if the charge sheet is not accompanied by the FSL report."

The Court felt that "Judicial discipline warrants that for the time being, we follow the view taken by a Coordinate Bench of our Court. The issue is to be finally decided by the Hon’ble Supreme Court before which the matter is pending. In view of the undisputed fact that in the present case the charge sheet, although filed within the period of 180 days, was not accompanied by the FSL report, and that the FSL report was filed as part of a supplementary charge-sheet filed beyond 180 days from the date of arrest of the petitioner and after he applied for statutory bail, we have to hold that upon expiry of 180 days, the petitioner became entitled to statutory bail/default bail, and the learned Trial Court erred in not extending that privilege to the petitioner."

The judgement reads: "we direct that the petitioner, namely, Idul Mia shall be released on bail upon furnishing a bond of Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act, 3rd Court, Malda, subject to condition that the petitioner shall appear before the learned Trial Court on each and every date of substantive hearing subject to the provisions of Section 317 of the Code of Criminal Procedure, 1973 / Section 355 of Bharatiya Nagarik Suraksha Sanhita, 2023, and shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever and on further condition that the petitioner, while on bail, shall not to leave the jurisdiction of Kaliachak P.S., Malda and shall also deposit his passport, if there be any, with the Trial Court before his release from the Correctional Home. The petitioner shall also report to the Inspector-in-Charge of Kaliachak Police Station, Malda, once in a week until further orders. In the event the petitioner fails to adhere to any of the conditions stipulated above without any justifiable cause, the learned Trial Court shall be at liberty to cancel his bail in accordance with law without further reference to this Court." The judgement was authored by Justices Arijit Banerjee.

 

Patna High Court sets aside Trial Court's judgment in a NDPS case from West Champaran

In Vinod Das vs. The State of Bihar, Patna High Court's Division Bench of Justices Ashutosh Kumar and Khatim Reza set aside the conviction of Vinod Das and Brijesh Das by under Sections 20(b)(ii)(C) and 23(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 by the Trial Court's judgment dated July 22, 2021. By order dated July 26, 2021, both were sentenced to undergo rigorous imprisonment for 15 years for each offence separately, to pay a fine of Rs. One lakh for each offence. The High Court's judgement dated October 4, 2024 recorded several discrepancies in carrying out the investigation which made "the prosecution case highly suspect." The Court was unable to put its "imprimatur on the judgment of the Trial Court convicting the appellants for the offence."

It all began with Shri Ram Kumar, an officer of the S.S.B. receiving secret information on September 18, 2018 that two persons are coming to India with narcotics in huge quantity and they are likely to cross the border sometimes around 7:30 PM on the same day. This information was communicated to his senior officer, viz., Commandant Rajesh Tikku, who constituted a team to lay a seize which included Shri Ram Kumar as well. Two independent persons were chosen as witnesses in advance. They are Gautam Sah and Ram Janam who have been examined at the trial as prosecution witnesses (PWs 5 and 6). Since there was prior information to Ram Kumar, the testing kit and weighing machine was also carried by the team. Two persons, the appellants were found coming from Nepal side after crossing the border. Both were apprehended. They were found to be in possession of a bag containing 12 packets of narcotics which tested positive for charas, a contraband. Samples were drawn in presence of Rajesh Tikku who, apart from the Commandant of S.S.B., a Gazetted Officer. The samples and the rest of the seized narcotics were sealed; the appellants were arrested and the case was lodged. On the basis of the written report, Bhangaha P.S. Case No. 67 of 2018 dated July 18, 2018 was registered for investigation under Sections 20(c), 22, 23, 24 & 28 of the Act. The investigation was conducted by Paras Kumar, one of the PWs. 

The Court examined the deposition of Shri Ram Kumar (PW-1) on whose report the FIR was lodged. Although he supported the prosecution case, but he admitted that he had not reduced the secret information into writing even after the raid was conducted. He simply informed his superior officer, viz., Commandant/ Rajesh Tikku and proceeded to the place from where the miscreants could be apprehended. The samples were drawn by him in presence of Rajesh Tikku. From his deposition, it became clear that two of the witnesses were chosen from before to be witnesses to the seizure but during the course of trial, both of them, viz., PW-5 and PW-6 have expressed their complete ignorance about any such recovery having been made in their presence. They deposed that they were made to sign on a blank sheet of paper.

In accordance with Section 42 of the Act, it was necessary for PW-1 to have reduced such information into writing within 72 hours for further confirmation that the provisions contained in the Act were followed. The appellants' counsel argued that there was a total violation of Section 42 of the Act and the procedure for sampling. 

The High Court relied on Supreme Court's decisions in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (2000) 2 SCC 513 and Sajan Abraham vs. State of Kerala (2001) 6 SCC 692, wherein it was held that the officer on receiving the information from any person had to record it in writing in the register concerned and had to send a copy of it to his superior officer in accordance with Section 42 of the Act. However, if the information is received when the officer is not in the police station, but while he is on the move, either on patrol duty or otherwise or either by mobile phone or other means and the information would call for immediate action and any delay would result in the goods or evidence being removed or destroyed, then it would not be feasible or practical to go for total compliance of Section 42. In such a situation, he could take action and only thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the superior officer. 

In both these cases, the Court had observed that the compliance with the requirements of Section 42 should normally precede the entry, search and seizure by the officer; but in special circumstances, involving emergent situations, the recording of information in writing and sending a copy thereof to the superior officer, could be postponed by a reasonable period. The question is one of urgency and experience.

The High Court also drew on the decision of Supreme Court's Constitution Bench in Karnail Singh vs. State of Haryana (2009) 8 SCC 539, wherein it was held that while total non-compliance with the requirement of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with the Section. Where a police officer does not record the information at all, and does not inform the officer superior to him at all, then it would be a clear violation of Section 42 of the Act. However, whether there is adequate or substantial compliance with Section 42 or not is required to be decided in each case. 

The High Court also referred to Supreme Court's decision in State of Rajasthan vs. Jagraj Singh @ Hansa (2016) 11 SCC 687; and Boota Singh and Ors. vs. State of Haryana (2021) 19 SCC 606.

The High Court noted another infirmity in the case. In accordance with the Standing Instructions No. 1/88 and 1/89, the samples are required to be drawn before a Gazetted Officer or before an authorised officer. It appears that the samples were drawn in presence of one of the members of the team. Even if one of the members of the team was a Commandant with the SSB and was a Gazetted Officer, the requirements would not be said to be complied with. Because even the officer has not been examined at the trial. The samples were drawn on September 18, 2018 and kept in the Malkhana. There is nothing on record to indicate that the samples as also the left over narcotics were appropriately preserved in the dedicated Malkhana. Beyond the disclosure of the members of the raiding team and the Investigator, there is nothing on record to lend credence to such an assertion of the prosecution. 

The High Court observed that although the samples were drawn on September 18, 2018, but those samples were dispatched to the Forensic Science Laboratory, Muzaffarpur only on January 11, 2019 i.e. after delay of about more than 100 days. Though the parcels were sent by special messenger but it was received in the FSL on January 15, 2019. Given the fact that the samples were not drawn in accordance with the procedure prescribed and the unusual delay in sending those samples to the laboratory, the report of positive test result for the Charas samples tested for Charas "is of no use". The material exhibits produced for the inspection of the Court does not cure the defect. 

The High Court noted that it is surprising that in his cross-examination, PW-4 has claimed to have drawn the samples himself. The samples were drawn by PW-1 at the place of seizure. Even otherwise, there is no entry anywhere in the records of the case of PW-4 having taken out the samples. The High Court found that neither PW-5 nor PW-6, the seizure-list witnesses, who had appended their signature on the proforma of apprehension have supported the prosecution case. These discrepancies in carrying out the investigation makes the prosecution case highly suspect. 

The High Court's judgement authored by Justice Ashutosh Kumar acquitted the appellants of the charges and directed the authorities to release them from the jail.