NDPS conviction set aside for poor evidence handling —

Two men were caught on Sasaram railway platform with boxes allegedly containing ganja. The trial court convicted one of them for 20 kg ganja and gave him 15 years' jail. The Patna High Court found serious gaps in seizure, sampling and production of the contraband. The conviction was set aside and the appellant was ordered to be released. This case arose from a raid conducted on 20.07.2015 at Sasaram Railway Station, District Gaya, during a political 'bandh'. A police team along with a Magistrate was on checking duty on platforms 3 and 4. According to the informant, train no. 12988 Ajmer–Sealdah Express arrived around 9:45 a.m. Two passengers, one elderly and one young, allegedly got down from a general coach carrying new steel boxes on their heads. They were said to have moved towards the north-east side, leaving the boxes on the platform. The police chased and caught both men. On questioning, they first said the boxes contained clothes and refused to open them. When pressured, they allegedly admitted the boxes contained ganja. On opening, the police claimed to have found ganja hidden in cloth, in several small and big plastic packets, covered with a jute sack. The two men were identified as Baijnath Sao and the present appellant. A weighing machine was brought from the parcel house. In presence of a Magistrate (PW-6) and police personnel, the substance from one box weighed 15 kg and from the other 20 kg, both said to be ganja. The 20 kg was attributed to the appellant. A seizure list was prepared on the platform in presence of the Magistrate and allegedly two independent witnesses, and signatures of witnesses and accused were stated to have been obtained. The accused did not produce any ticket or document for the boxes. They allegedly disclosed that they had brought the ganja from Tundla (Uttar Pradesh) and were taking it to Dehri for sale. On the basis of the written report of S.I. Yogendra Kumar (PW-5), Sasaram Rail P.S. Case No. 84 of 2015 was registered on 20.07.2015 under Sections 21 and 22 of the NDPS Act and Section 147 of the Railways Act. After investigation, charge-sheet no. 101 of 2015 dated 15.10.2015 was submitted against both accused under Sections 20 and 22 of the NDPS Act and Section 147 of the Railways Act. Cognizance was taken on 04.11.2015 and charges under Sections 20 and 22 NDPS Act were framed on 18.01.2016. During trial in N.D.P.S. Case No. 18 of 2015 before the Additional District Judge-1st, Gaya, the prosecution examined six witnesses and produced documents including the seizure list, FIR, forwarding letter to FSL and the FSL report. The trial court held that the procedural requirements under the NDPS Act had been complied with, believed the prosecution witnesses, and convicted the appellant under Sections 20 and 22 NDPS Act. He was sentenced to 15 years' rigorous imprisonment with a fine of Rs. 1,00,000/-, and in default, further rigorous imprisonment of two years. Sentences were to run concurrently. The co-accused Baijnath Sao's appeal (Cr. APP (DB) No. 259 of 2018) abated due to his death on 16.06.2025. The surviving accused filed the present criminal appeal (DB) No. 453 of 2018 before the Patna High Court under Section 374(2) Cr.P.C. challenging his conviction and sentence. What the Court Examined and Decided The Division Bench of Hon'ble Mr. Justice Mohit Kumar Shah and Hon'ble Mr. Justice Ashok Kumar Pandey (authoring the oral judgment) heard the appeal and examined the entire trial record. The appellant argued that mandatory and important procedures relating to seizure, sampling and proof under the NDPS Act had not been properly followed. The defence highlighted three main sets of issues: absence of independent witnesses, serious defects in the seizure and seizure list, and improper sampling and non-production of the seized ganja in court. PW-1, the Investigating Officer (Shambhu Narain Singh), stated that he took over investigation on 20.07.2015, recorded statements, inspected the eastern part of platforms 3 and 4, collected antecedents, and sent the seized contraband to FSL, Patna, though the report was not received until after the charge-sheet. He identified the forwarding letter (Ext.-1) and said he filed the charge-sheet under Sections 20 and 22 NDPS Act. In cross-examination, PW-1 admitted that he was not part of the raiding party and that the seized article was not at the place of occurrence but had been brought to the police station. Importantly, he candidly stated that during the entire investigation he did not record the statement of any independent witness. He further admitted that he did not receive the seized article from the Station House Officer in sealed form; he received only two locked steel boxes with keys. He did not know in how many copies the seizure list was prepared and accepted that the seizure list bore only the signature of a sipahi and not of any independent witness. He also confirmed that the seized contraband was not produced in court and remained in the malkhana. PW-2 (constable Ram Singh) broadly supported the prosecution version, saying that 20 kg and 15 kg ganja were recovered from the two boxes, and that the seizure list was prepared on the platform and signed by him (Ext.-2). But in cross-examination he admitted he did not know the appellant earlier, did not know whether a copy of the seizure list was given to the accused, and that no case number was written on the box. He also claimed the contraband was weighed on the platform and then in the parcel department, but admitted there was no voucher from the parcel office. He accepted that other persons were present on the platform when seizure took place. PW-3 (Ajay Kumar) supported the raid story but stated in cross-examination that before searching the accused, the police did not search themselves and no document regarding body search was prepared before the Magistrate. He admitted that no document or object was found in the box linking it to the appellant, that he did not sign anywhere, and that samples drawn from the seized ganja did not bear the appellant's signature. He also confirmed that nothing was recovered from the appellant's body. PW-4 (Vinay Kumar Rai) said he was on platform duty and supported the raid account. In cross-examination he admitted he had not signed the seizure list, the seized article was not present in court, he had not counted packets, and no document was recovered from the box to show that it belonged to the appellant. PW-5, the informant S.I. Yogendra Kumar, reiterated his self-statement in examination-in-chief. In cross-examination he stated he did not remember the coach number from which the accused got down, that no written consent of the appellant was taken for search, and that he had not counted the packets. The contraband, according to him, was sealed in the box and samples were taken from the contraband, but he did not remember from how many packets. He accepted that there was no object in the box connecting it to the appellant and that all procedures were said to be done before the Magistrate without taking any permission from him. PW-6 (Veer Bahadur Singh), the Block Panchayat Raj Officer, stated that he was deputed as Magistrate at the station on account of the bandh. According to him, the search was made before him and 20 kg contraband was recovered from the appellant's box. But in cross-examination he admitted he had no authority letter to prove he was Magistrate at that time and that each packet of contraband was not opened before him; only some packets were opened and boxes were sealed. The defence argued that Section 52A of the NDPS Act, which deals with disposal and also lays down safeguards relating to inventory, photographs and sampling in presence of a Magistrate, was not followed. The High Court reproduced Section 52A and then relied on the Supreme Court's decision in Bharat Aambale v. State of Chhattisgarh, 2025 INSC 78. The Bench noted the Supreme Court's conclusions that: Section 52A, though primarily about disposal, introduces important safeguards regarding inventory, photographing and drawing of samples in presence of a Magistrate. Mere drawing of samples before a gazetted officer is not sufficient compliance. Non-compliance may not automatically vitiate trial, but once foundational facts of non-compliance are shown, the burden shifts to the prosecution to show substantial compliance or to show that non-compliance does not affect its case, and this must be proved beyond reasonable doubt. Applying these principles, the Patna High Court examined whether foundational facts of non-compliance and other serious gaps existed in this case. First, the Court scrutinised the seizure list. It recorded that the seizure list (Ext.-3/Ext.-7) showed two seizure witnesses: Santosh Kumar (sipahi) and Ram Singh (PW-2). Santosh Kumar was never examined. The so-called independent witnesses mentioned in the self-statement were also not examined. The Court found that this failure seriously affected the proof of seizure, especially because the seizure occurred in a public place – platform no. 3 – where independent witnesses were available. Secondly, the Court noticed that the seizure list did not mention the number of packets in which the contraband was kept, nor the separate weight of each packet. Though the FIR spoke of 'several small and big plastic packets', there was no clear record of how many packets existed and what they weighed. This raised a serious question regarding the quantity allegedly seized, particularly when 20 kg ganja was the basis for imposing a heavy sentence. Thirdly, sampling was not proved as per law. From the trial court order sheet it appeared that Shri Sanjeev Kumar Rai, ACJM, Gaya, was appointed Magistrate to oversee taking and sealing of samples, but none of the witnesses proved what actually happened before him. The FSL report (Ext.-6) stated that two sealed plastic jars marked 'A' and 'B' were received as samples of ganja from the accused. The Court noted that there were two accused and two boxes, but the prosecution did not show how many packets were inside each box and whether representative samples were taken from every packet. The Court emphasised that the prosecution must first prove how many packets containing contraband were seized, their individual and total weight, and that samples were taken from each packet. On the evidence, the number of packets and sampling process remained unclear. Fourthly, the seized contraband was never produced before the trial court. The I.O. said it remained in the malkhana but no malkhana register or related document was produced. This created a gap between the alleged seizure and the samples tested by FSL. Fifthly, there were contradictions and omissions regarding weighing. PW-2 spoke of weighing both on the platform and in the parcel office but admitted absence of any parcel voucher. Other witnesses gave incomplete details. The Court summarised the main infirmities in the prosecution case: One seizure witness (Santosh Kumar) was not examined. Independent witnesses to seizure were not examined. Seizure took place on platform no. 3 but no independent public witness from that place was examined. The number of packets in the boxes was not disclosed and weights of each packet were not recorded. Sampling, though said to be done before a Magistrate, was not proved, and it was unclear whether samples were taken from each packet. The seized contraband was not produced before the court. Section 52A NDPS Act was not followed. To underline the importance of linking seized contraband with the FSL report, the Court relied on the Supreme Court's decisions in Vijay Pandey v. State of Uttar Pradesh, (2019) 18 SCC 215, and Gorakh Nath Prasad v. State of Bihar, AIR 2018 SC 704. Both judgments held that if the seized narcotic substance is not produced in court, and there is no evidence to link the FSL-tested sample with what was seized from the accused, conviction cannot be sustained and the accused must get benefit of doubt. In light of these authorities and the multiple gaps in the prosecution evidence, the Patna High Court held that the prosecution had failed to establish foundational facts and had not proved its case beyond reasonable doubt. There was no satisfactory evidence to connect the FSL report with the substance allegedly seized from the appellant, and the procedures under Section 52A NDPS Act had not been proved to have been followed. The Court concluded that the trial court committed a grave error in convicting the appellant under Sections 20 and 22 of the NDPS Act. It therefore set aside the judgment of conviction dated 20.12.2017 and the order of sentence dated 02.01.2018 passed by the Additional District Judge-1st, Gaya in N.D.P.S. Case No. 18 of 2015. The appellant, who was in custody, was directed to be released forthwith, if not wanted in any other case. The appeal was allowed and the trial court records were ordered to be sent back. Why This Judgment Matters This judgment is important for anyone accused under the NDPS Act, particularly in Bihar. It shows that even in serious drug cases, the prosecution must strictly and carefully follow procedure for seizure, sampling and storage of contraband. For ordinary people, it means that a mere allegation that police recovered a large quantity of ganja is not enough. The court will look closely at whether there are reliable witnesses, whether the seized substance is produced in court, whether samples are drawn properly, and whether there is a clear link between what was seized and what was tested by the laboratory. For police and investigating officers, the ruling is a reminder that cutting corners in procedure can result in acquittal, even where contraband may actually have been seized. The Patna High Court, relying on Supreme Court decisions, has reinforced that non-production of seized articles and failure to prove sampling as per Section 52A can destroy the prosecution case. For lawyers and trial courts, the decision stresses the need to insist on foundational facts – seizure list properly proved, independent witnesses examined whenever available, malkhana records produced, and clear evidence showing that FSL samples come from the seized packets. Legal Issues and Answers Issue: Whether the prosecution proved beyond reasonable doubt that 20 kg of ganja was recovered from the conscious possession of the appellant and that sampling and seizure procedures under the NDPS Act, including Section 52A, were properly followed. Answer: No. The Patna High Court held that multiple infirmities – non-examination of seizure witnesses, absence of independent witnesses, lack of details about packets and weights, unclear and unproved sampling, non-production of the seized contraband in court, and non-compliance with Section 52A – meant the prosecution failed to prove foundational facts and could not link the FSL report with the alleged seizure. The appellant was acquitted. Cases Cited by the Court Bharat Aambale v. State of Chhattisgarh, 2025 INSC 78 (Supreme Court) – on the scope and effect of Section 52A NDPS Act and the standard of 'substantial compliance'. Vijay Pandey v. State of Uttar Pradesh, (2019) 18 SCC 215 – holding that non-production of seized contraband and lack of linkage with FSL sample entitles accused to benefit of doubt. Vijay Jain v. State of M.P. (referred within Vijay Pandey) – importance of producing seized material as material exhibit. Ashok (case referred within Vijay Pandey) – similar principle on non-production of seized narcotic powder. Gorakh Nath Prasad v. State of Bihar, AIR 2018 SC 704 – reiterating that failure to produce seized narcotic powder and link it with FSL report is fatal to prosecution. Case Details Case Number: Criminal Appeal (DB) No. 453 of 2018; arising out of Sasaram Rail P.S. Case No. 84 of 2015; N.D.P.S. Case No. 18 of 2015. Case Title: Sonu Kumar v. The State of Bihar. Citation: 2025 (4) PLJR 69. Court: High Court of Judicature at Patna. Coram: Hon'ble Mr. Justice Mohit Kumar Shah; Hon'ble Mr. Justice Ashok Kumar Pandey. Date of Judgment: 22.07.2025 (uploaded 18.08.2025). Advocates: Mr. Suraj Narain Yadav, Advocate; Mr. Chandra Mohan, Advocate; Mr. Masoom Alam, Advocate – for the appellant. Mr. Ajay Mishra, Additional Public Prosecutor – for the State. Nature of Case: Criminal appeal (Division Bench) under Section 374(2) Cr.P.C. against conviction and sentence under Sections 20 and 22 of the NDPS Act. Statutes Involved: Narcotic Drugs and Psychotropic Substances Act, 1985 (in particular Sections 20, 22, 52A, 54); Code of Criminal Procedure, 1973 (Section 374(2), Section 313); Railways Act, 1989 (Section 147 at FIR/charge-sheet stage). Link to Judgment: Patna High Court Judgment – Sonu Kumar v. State of Bihar If you found this explanation helpful and wish to stay informed about how legal developments may affect your rights in Bihar, you may consider following Samvida Law Associates for more updates.