Kamakhya Giri NDPS case reaches Supreme Court

Patna High Court's Division bench of Justices Ashutosh Kumar and Vipul M. Pancholi had upheld the  judgment of conviction and order of sentence dated March 8, 2019 and March 14, 2019 respectively, rendered by the 1st Additional Sessions Judge-cum-Special Judge (NDPS) Act, Aurangabad arising out of a case of 2016, whereby all the appellants were convicted for the offences punishable under Sections 8-20 (b) ii (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced them to undergo rigorous imprisonment for 14 years and to pay a fine of Rs.1,50,000/- each and in default of payment of fine to undergo S.I. for six months each. 

In its judgement dated August 2, 2023, the Division Bench observed: "Thus, only because a Magistrate was not present when samples were drawn, we have no other reasons to doubt the correctness of the prosecution version that the appellants were carrying narcotics with them. 29. We have also gone through the reasoning recorded by the Trial Court while passing the impugned order of conviction and we are of the view that the Trial Court has not committed any error while passing the impugned order of conviction and, therefore, we are not inclined to interfere with the same in the present appeals filed by the appellants-accused." The judgement has been challenged in the Supreme Court. The appeal was called on for hearing  on May 13, 2025.

The FIR states that pursuant to a secret information on October 2, 2016, at about 08:10. a.m. that a pick-up van bearing Registration No. BR 04M 0561 which was being used in transportation of huge quantity of Ganja. The pick-up van was intercepted and stopped near Batane river. During search, four persons, namely, Raushan Kumar, Ram Lakhan Tiwary, Upendra Giri and Suraj Sao @ Rukhi Sao were found sitting in the van. It was stated that during search, 898 kg of Ganja was recovered and seized. 

The counsel of the appellants- accused submitted that out of ten witnesses, eight witnesses are police personnel and, therefore, they are interested witnesses. Two other formal witnesses have been examined by the prosecution. However, the prosecution has failed to examine any independent witnesses. Thus, the Trial Court ought not to have relied upon the deposition given by the interested witnesses. It is further submitted that there is no recovery of Ganja from physical possession/conscious possession of the appellants-accused and the seized Ganja was found from the pick-up van, as alleged by the prosecution. However, so far as carrying out the search is concerned, the Investigating Agenc has not complied with the mandatory provisions of NDPS Act. Search was not carried out in presence of Gazetted Officers or Magistrate and, therefore, on the ground of violation of mandatory provisions of NDPS Act, the Trial Court ought to have acquitted the appellants-accused. 

The counsel appearing for the defence also contended that while collecting the samples from the packets which were prepared by the Investigating Agency, proper procedure has not been followed and, therefore, the report given by the concerned FSL may not be believed by this Court. It was further submitted that theguidelines issued by the Supreme Court in the case of Union of India Vs. Mohanlal & Anr., reported in (2016) 3 SCC 379 has not been followed and thereby there is violation of provisions contained in Section 52A of the NDPS Act.

The counsel of the accused Ram Lakhan Tiwary submitted that the accused was only an occupant of the vehicle and he was not at all aware about the fact that alleged Ganja is being kept in the said pick-up van. He urged that impugned order of conviction passed by the concerned Trial Court be quashed and set aside.

Supreme Court grants bail to a NDPS convict

In Suraj Sai@ Rukhi @ Rukhi Sao vs. The State of Bihar (2025), Supreme Court's bench of Justices Sudhanshu Dhulia and K. Vinod Chandran passed an order dated March 5 2025 granting bail to the petitioner in a SLP (criminal). The order reads:"The petitioner has already undergone about 7 ½ years in jail and there is a question of law involved here relating to Section 52A of the NDPS Act. Considering the period of incarceration of the petitioner and the entire facts and circumstances of this case, we are of the opinion that a case of bail is made out for the petitioner and therefore, the prayer for bail is allowed. Accordingly, the petitioner is directed to be released on bail forthwith on the usual terms and conditions to be decided by the concerned Court." It listed the Special Leave Petition for hearing on April 7, 2025. The case arose from Muffasil thana, Aurangabad, Bihar in 2016. 

The petitioner is an accused in a case punishable Under Section 8-20(b)(ii)(C) of the NDPS Act and has been convicted for 14 years rigorous imprisonment by the trial court. The conviction and sentence of the petitioner was upheld by the Division Bench of Patna High Court vide impugned order dated August 2, 2023. The allegation against the petitioner is that 898 kgs of Ganja had been recovered from this possession. 

The Division Bench comprising of Justices Ashutosh Kumar and Vipul M. Pancholi had observed:"We have also gone through the reasoning recorded by the Trial Court while passing the impugned order of conviction and we are of the view that the Trial Court has not committed any error while passing the impugned order of conviction and, therefore, we are not inclined to interfere with the same in the present appeals filed by the appellants-accused. Accordingly, all these appeals are dismissed." The 26-page long High Court's judgement was authored by Justice Pancholi. Besides Suraj Sao, there are three more petitioner's in the related cases, namely, Kamakhya Giri, Upendra Giri and Ram Lakhan Tiwari. 

 

Supreme Court seeks fresh hearing by a new bench of Delhi High Court on interpretation of Section 52A in NDPS case

In Narcotics Control Bureau vs. Kashif (2024), Supreme Court's bench of Justices Bela M. Trivedi and Satish Chandra Sharma has requested the Chief Justice of Delhi High Court "to place the Bail application of the Respondent before the Bench other than the Bench which has passed the impugned order, for deciding it afresh." The judgement was delivered on December 20, 2024.

The Court was hearing the appeal which arose out of the order dated May 18, 2023 passed by Justice Jasmeet Singh of the High Court of Delhi in a bail application granting bail to the respondent. The bail application was allowed by the High Court solely on the ground of belated compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Justice Trivedi led bench felt that the High Court misinterpreted this provision, and without recording the findings as mandated in Section 37 of the NDPS Act. The Court felt that High Court's order involved seminal issue on the interpretation of Section 52A of the Act is likely to have wide repercussions. 

The Court noted that the provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.

Supreme Court's judgement observed that the High Court's order is based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. It concluded: "Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law. Since, we are remanding the matter for fresh consideration on merits, we are extending the period of bail granted to the respondent for four  weeks, with a request to the High Court to decide the application afresh as expeditiously as possible, and preferably within four weeks. In case the same is not disposed of within four weeks it shall be open for the High Court to pass appropriate orders with regard to extension/ non-extension of the said period."

Section 52A:“Disposal of seized narcotic drugs and psychotropic substances.—(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—(a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

The NDPS Act came into force on October 14, 1985, Section 52A was inserted by the Act 2 of 1989, which came into force with effect from May 29, 1989. For the purpose of proper interpretation of Section 52A, it would be beneficial to peep into its historical background, and the position with regard to the search, seizure, drawing of sample, etc. prevailing prior to the insertion of Section 52A. Prior to insertion of Section 52A in the Act, the Central Government in exercise of the powers under Section 4(3) of the NDPS Act vide notification dated March 17, 1986, had constituted the Narcotics Control Bureau (NCB) conferring upon it the powers and functions of Central Government for taking measures in respect of matters contained in Section 4(2) of the Act. It was noticed by the NCB that different Investigating Officers of various enforcement agencies were adopting different procedures in drawing samples from seized narcotic drugs and psychotropic substances, etc. Therefore, with a view to bring uniformity of approach in such matters and to provide for a secured system of handling of drug samples, the NCB had issued the Standing Instructions No. 1 of 88 vide the Notification dated 15.03.1988. The said Notification of the Standing Instructions no. 1 of 88 pertained to the procedure to be followed for drawing samples from the seized narcotic drugs and psychotropic substances, numbering of samples drawn, sealing, mode of packing, dispatch of samples to the concerned laboratory for test etc. The relevant clauses of the said Standing Instructions No. 1 of 88 pertaining to the place and time of drawal of sample, disposal of Remnant sample/duplicate sample and the drug, read as under:
“1.5. Place and time of drawal of sample: Samples from the Narcotic Drugs and Psychotropic Substances
seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the Panchanama drawn on the spot.
1.21. Custody of duplicate sample Duplicate sample of all seized narcotic drugs and psychotropic substances must be preserved and kept safely in the custody of the Investigating officer alongwith the case property. Normally duplicate sample may not be used but in case of loss of original sample in transit or otherwise or on account of trial court passing an order for a second test, the duplicate sample will be utilized.
1.22. Disposal of Test Memo
As soon as the test result in original or duplicate or both test memos are received, the same will be filled in the Court, trying the case, alongwith, chargesheet/complaint by the Investigating officer. He will keep an attested copy of the same in his case file.
1.23. Disposal of Remnant sample/duplicate sample and the drug-At present, the remnant sample/duplicate sample and seized narcotic drugs and psychotropic substances can be disposed of after the proceedings of prosecution is over or by obtaining an order from such court under Section 110 of the Customs Act, 1962 and/or 451 of Cr.P.C. While obtaining the order of the court under the aforesaid section it is necessary that specific order in respect of the remnant sample/ duplicate sample is also obtained. After such order has been obtained, the drug or substance along with the samples including remnants shall be disposed of in the13 manner prescribed. Please acknowledge the receipt of the standing order."

Recognizing the importance of dispatch, transit, receipt, safe custody, storage, proper accounting and disposal destruction of the seized/confiscated drugs and the need for evolving a uniform procedure, the NCB issued the Standing Order No. 2 of 88 vide the Notification dated April 11, 1988. The NCB vide the said Standing Order formulated the procedure to be followed by all the Central and State drug law enforcement agencies for seizure, sampling, storage etc. It was mentioned in clause 3.1 thereof that “all drugs should be properly classified, carefully weighed and sampled on the spot of seizure.” The clause 3.2 thereof stated that “the procedures set out in Standing Order No.1 of 88 should be scrupulously followed”. The clause 5.2 directed the respective enforcement agencies to constitute a three-member Committee, making it responsible to advise the respective investigating officers on the steps to be initiated for expeditious disposal of the seized drugs.

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.

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.