Nasibul Islam v. The Union Of India Through Intelligence Officer, Narcotics Controlbureau, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.3955 of 2024 Arising Out of PS. Case No.-4 Year-2018 Thana- N.C.B (GOVERNMENT OFFICIAL) District- Patna ====================================================== 1.

Nasibul Islam, Son of Najrul Islam, Resident of Naim Nagar, C-Block, P.OMain Gate Old Court Road, P.S.-Durgapur, Distt-Vardhman, West Bengal 2.

Rahmat Ansari, Son of Khalil Miyan, Resident of Village- Pokharia, P.O.- Basbutiya, P.S.- Palojori, Distt.- Deoghar, Jharkhand ... ... Appellants

Versus

The Union of India Through Intelligence Officer, Narcotics Control Bureau, Patna, Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellants :

Mr. Manoj Kumar Singh, Advocate Mr. Risup, Advocate Ms. Salini Raje, Advocate For the Union of India :

Mr. Bindhyanchal Rai, Sr. Panel Counsel Mr. Manoj Kumar Singh, C.G.C.

====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT Date : 06-07-2026 Heard Mr. Manoj Kumar Singh, learned counsel appearing for the appellants, and Mr. Bindhyanchal Rai, learned Senior Panel Counsel appearing on behalf of the Union of India.

2. The instant criminal appeal has been preferred by the appellants against the judgment of conviction dated 10.07.2024 and the order of sentence dated 16.07.2024 passed in Special (NDPS Act) Case No. 7 of 2018 arising out of F. No. NCB/PZU/V/04/2018 by the Court of the learned Exclusive Special Judge (NDPS Act), Court No. 1, Patna, whereby and whereunder both the appellants have been convicted of the

2/26 offences punishable under Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- each for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act and, in default of payment of fine, to further undergo rigorous imprisonment for a period of four months. The same sentence has been awarded to the appellants for the offences punishable under Sections 25 and 29 of the NDPS Act. All the sentences awarded to the appellants have been directed to run concurrently.

Prosecution Story:-

3. As per the prosecution, on 26.01.2018 at about 6:00 p.m., the Intelligence Officer of the Narcotics Control Bureau (NCB), Patna received specific the secret information that a truck bearing Registration No. WB-39B-0214 carrying a huge consignment of ganja was coming from Assam via Siliguri, Begusarai and Bakhtiarpur and would deliver the contraband near Masjid, Jethuli, Fatuha between 12:00 midnight and 2:00 a.m. to one Sunil and Jitendra. The information was reduced into writing and, upon the direction of the Superintendent, NCB, Patna, a raiding team was constituted. The team reached near Masjid, Jethuli, Fatuha, after that NCB

3/26 team contacted two independent persons and requested them to be the witnesses in raid by sharing them about the secret information. At about 1:15 a.m. on 27.01.2018, the said truck was intercepted and the prosecution alleges that Appellant No. 1, Nasibul Islam, was driving the truck, while Appellant No. 2, Rahamat Ansari, was travelling as the co-driver. Notices under Section 50 of the NDPS Act were served upon both the appellants, who opted to be searched before a Gazetted Officer. Accordingly, they, along with the truck, were taken to the NCB Office, Patna, where their personal search was conducted in the presence of the Superintendent, NCB, but nothing incriminating was recovered from their persons.

The prosecution further alleges that during the search of the truck, one blue plastic drum kept over cement bags in which 13 rectangular packets with brown colour tape were recovered and three rectangular packets kept inside the cabin were also recovered. In all, sixteen packets wrapped with brown tape containing a brown dried substance suspected to be ganja were found. Upon testing with the drug detection kit, the substance allegedly tested positive for ganja. The total weight of the recovered contraband was found to be 104 kilograms.

4/26 while the remaining contraband was sealed in four gunny bags marked P-1 to P-4. The truck, 420 bags of cement, the blue drum and two mobile phones were also seized under the provisions of the NDPS Act, and a search-cum-seizure list, panchnama and test memo were prepared. It is further alleged that notices under Section 67 of the NDPS Act were issued to the independent witnesses as well as to both the appellants. According to the prosecution, Appellant No. 1, Nasibul Islam, in his voluntary statement, admitted that he was the driver of the truck owned by his father and that he, along with Appellant No. 2, Rahamat Ansari, was transporting the seized ganja, which had been loaded at Kubarpur handed over to them by one Wasim @ Pranav Da of Vishalgarh, Tripura for delivery to Sunil and Jitendra of Jethuli, Fatuha. Similarly, Appellant No.

2, Rahamat Ansari, is stated to have admitted in his voluntary statement that he was the co-driver of the truck and that the ganja had been loaded at Kubarpur for delivery to the said persons at Fatuha. Thereafter, both appellants were arrested on 27.01.2018 for the alleged offences punishable under Sections 20(ii)(C), 25 and 29 of the NDPS Act. After medical examination, they were produced before the learned Special Judge, NDPS, Patna, who remanded them to judicial custody.

5/26 duplicate samples were deposited in the NCB Malkhana, while one sample was sent to the Central Revenues Control Laboratory (CRCL), Kolkata, for chemical examination. During investigation, various communications were sent to different authorities regarding verification of the vehicle, bank accounts, ownership of the truck, and the persons allegedly involved in the transportation of the contraband. On the basis of the recovery of 104 kilograms of ganja, the alleged voluntary statements of both appellants recorded under Section 67 of the NDPS Act, the chemical examination report, and other materials collected during investigation, the prosecution filed the complaint alleging that Appellant No. 1, Nasibul Islam, and Appellant No.

2, Rahamat Ansari, knowingly possessed and transported commercial quantity of ganja from Assam to Bihar in contravention of Section 8 of the NDPS Act, thereby committing offences punishable under Sections 20(ii)(C), 25 and 29 of the NDPS Act, 1985. It is further alleged that the seized truck and the contraband are liable to confiscation under Section 60 of the NDPS Act.

4. On the basis of the complaint petition filed by the Intelligence Officer, NCB, Patna, a case bearing NCB Patna No. NCB/PZU/V/4/2018 dated 28.01.2018 was registered under

6/26 Sections 8, 20(ii)(C), 25 and 29 of the NDPS Act against the appellants, which set the criminal law in motion.

5. After investigation, on 16.08.2018, cognizance of the offences punishable under Sections 20(ii)(C), 25 and 29 of the NDPS Act was taken against the appellants.

6. The appellants were initially charged with the offences punishable under Sections 20, 25, and 29 of the NDPS Act. Subsequently, on 24.06.2024, modified charges under Sections 20(b)(ii)(C), 25, and 29 of the NDPS Act were framed against the appellants. Accordingly, the appellants finally stood charged with the offences punishable under Sections 20(b)(ii) (C), 25, and 29 of the NDPS Act. The charges were read over and explained to them in Hindi, to which they pleaded not guilty and claimed to be tried.

7. During the trial, the prosecution examined the following witnesses:

Sl No. Name of witness Description PW-1 Prakash Ram Member of raiding team PW-2 Ravi Ranjan Kumar Member of raiding team PW-3 K.V. Robinson Gangte Superintendent, NCB, Patna PW-4 Anil Kumar Prasad Seizing officer-cumComplainant

8. The prosecution also proved the following documents and got them marked as exhibits:

Exhibit No.

Description of Exhibit Attested

7/26 By/Proved By Exhibit P-1/PW-1 Search Cum Seizure List PW-1,2,3 and 4 Exhibit P-1/a, 1/b, 1/c, 1/d, 1/e & 1/f -PW-1 Signatures of Anil Kumar Prasad, Prakash Kumar, K.V.

8/26 Exhibit P-16 Certification report alongwith Inventory & Photographs of seized articles PW-2

9. After completion of the prosecution evidence, the statements of the appellants were recorded by the trial court under Section 313 of the Code of Criminal Procedure (in short, 'Cr.P.C.'). The appellants denied the material circumstances appearing against them in the prosecution evidence and stated that they were innocent and had falsely been implicated in the present case. They pleaded innocence.

10. The appellants did not adduce any oral evidence in their defence, however, the following documentary evidence was produced on their behalf:- Exhibit No. Description of Exhibit Attested By/Proved By Exhibit-A Order Sheet dt.

28.01.2018 of the present case i.e., Special (NDPS) Case No. 7/2018 Certified Copy Exhibit-B Application dt. 28.01.2018 filed before court in present case, i.e., Special (NDPS) Case No. 7/2018 alongwith Annexure "A".

Certified Copy Consideration and Analysis:-

11. Heard both sides and perused the impugned judgment, the evidence adduced by the prosecution and the appellants, and the statements of the appellants recorded under Section 313 of the Code of Criminal Procedure (in short,

9/26 "Cr.P.C.").

12. The instant matter relates to the recovery of a large quantity of ganja from a truck. As per the allegation, both the appellants were found inside the said truck with the alleged contraband and, accordingly, they were charged with the offences punishable under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act and held guilty of those offences.

13. The first and foremost argument advanced by the appellants' counsel is that the seized contraband was neither produced before the trial court, nor was sampling carried out before the Magistrate, nor was videography of the seized material and preparation of the inventory carried out before the Magistrate though at belated stage of trial an attempt to fill up the said lacuna was made but that was not sufficient to discharge the prosecution from its statutory obligation arisen out of Section 52A of the NDPS Act. Therefore, there was a complete violation of Section 52A of the NDPS Act. In support of this contention, learned counsel for the appellants has placed reliance upon the judgment of the Hon'ble Apex Court in Jitendra vs. State of M.P., reported in (2004) 10 SCC 562, and has also placed reliance upon the judgment of this Court passed in Cr. APP (DB) No. 705 of 2018, in the case of Sunil Kumar

10/26 vs. The State of Bihar and other analogous criminal appeals, wherein the aforesaid judgment of the Hon'ble Apex Court was taken into consideration and followed.

14. In rebuttal of this contention, learned counsel appearing for the Union of India, while placing reliance upon the judgment of the Hon'ble Division Bench of this Court passed in Cr. APP (DB) No. 445 of 2023, in the case of Shankar Das vs. The State of Bihar and other analogous appeals, has argued that mere discrepancies and irregularities in the compliance with the provisions of Section 52A of the NDPS Act are not fatal to the prosecution and would not entitle the accused/appellants to be acquitted of the charged offences. In support of this contention, learned counsel has also placed reliance upon the judgment of the Hon'ble Apex Court in the case of Narcotics Control Bureau vs. Kashif, reported in (2024) 11 SCC 372, which was followed by the Hon'ble Division Bench of this Court in the above-cited case.

15. In the light of the above submissions and contentions, I have gone through the evidences and at first, I would like to discuss the importance of the physical evidence as non-production of the physical evidence would lead to a negative inference against the prosecution within the meaning of Section 114(g) of the Evidence Act, as in every criminal matter involving

11/26 the recovery of a particular material used in the commission of an offence or against which or for which an offence is committed, its production is considered very essential, particularly in offences under the NDPS Act, which are completely based on the recovery of the contraband. Though mere non-production of the seized contraband during the trial may not be fatal if there is reliable evidence in respect of the seizure, drawing of samples in accordance with the provisions of Section 52A of the NDPS Act, and there is an explanation for the non-production of the contraband before the trial court.

But in the present matter, it appears from a perusal of the records that an application was filed by the Intelligence Officer, namely Ravi Ranjan, before the learned Judicial Magistrate, 1st Class, Rajat Deep, Patna, seeking certification of the correctness of the photographs and sampling of the seized narcotic drugs and psychotropic substances. The filing of the said application appears to have been an attempt by the NCB, Patna Zonal Unit, to cure the defect arising from its earlier non-compliance with the mandatory provisions of Section 52A of the NDPS Act.

12/26 brought on record in support thereof. However, I am unable to treat Exhibit-16 as constituting valid compliance with Section 52A of the NDPS Act for the following four reasons. Firstly, the proceedings were undertaken at a highly belated stage of the trial. By that time, all the four prosecution witnesses had already been examined, and only PW-1, who had earlier been examined, was subsequently re-examined on 12.09.2023 and 13.09.2023 on certain additional aspects. Thus, the process under Section 52A was initiated when the trial had virtually reached its conclusion. Secondly, the trial court records do not indicate that any information regarding the proceedings conducted before the learned Judicial Magistrate on 03.02.2023 was ever communicated to the accused/appellants.

The records further reveal that the entire process of certification, photography, and sampling was carried out only in the presence of the NCB officials, thereby excluding the accused from the said proceedings. Thirdly, and more importantly, the prosecution has failed to produce any material showing that the samples allegedly drawn before the learned Judicial Magistrate on 03.02.2023 were ever forwarded to the Forensic Science Laboratory for examination. Consequently, the prosecution has relied entirely upon the FSL report dated 06.02.

13/26 allegedly drawn before the Judicial Magistrate. Thus, there is no scientific evidence on record establishing that the samples drawn during the purported compliance with Section 52A were ever examined by the FSL. Fourthly, although the prosecution sought to rely upon the proceedings conducted before the learned Judicial Magistrate to establish compliance with Section 52A of the NDPS Act, neither the learned Judicial Magistrate, who allegedly supervised and certified the entire process, nor any other witness competent to prove the said proceedings was examined by the prosecution. The examination of the learned Judicial Magistrate was particularly essential in view of the belated nature of the exercise.

Although Ravi Ranjan Kumar (PW-2), the concerned NCB official, was examined as a prosecution witness, his deposition had already been recorded on 13.06.2022, much before the application dated 03.02.2023 was filed, and no effort was made thereafter to recall him for proving the subsequent proceedings. The order sheets of the trial court further do not disclose that the defence was even made aware of the application dated 03.02.2023 filed by the NCB officials, as there is no endorsement showing service of a copy thereof upon the accused/appellants. It is true that the order sheet dated 12.10.2022 records that an application dated 11.07.2022 filed by the prosecution was pressed; however, the said application is not available on the trial court record.

14/26 circumstances indicate that the prosecution attempted, at the concluding stage of the trial, to rectify the deficiency arising from its failure to comply with the mandatory requirements of Section 52A of the NDPS Act. Such a belated exercise cannot absolve the prosecution of its statutory obligation to ensure strict compliance with the said provision. Although Section 52A does not prescribe any specific time limit for compliance with sub-sections (1), (2), and (3), the statutory procedure is expected to be followed within a reasonable time. In particular, the representative samples required for forensic examination ought to be drawn before the Judicial Magistrate without undue delay. If there is any substantial delay, the prosecution must satisfactorily explain the same. No such explanation has been offered in the present case.

Moreover, there is absolutely no material to show that the samples allegedly drawn before the learned Judicial Magistrate were ever examined by the FSL, nor has any corresponding FSL report been produced. The appellants were also deprived of the opportunity to cross-examine either the concerned Intelligence Officers or the learned Judicial Magistrate with respect to the subsequent proceedings undertaken on 03.02.2023. Consequently, the entire exercise was carried out behind the back of the accused, thereby seriously prejudicing their defence.

15/26 mandatory provisions of Section 52A of the NDPS Act in the present case.

15.1. Although, in view of the principles laid down by the Hon'ble Apex Court in Bharat Aambale vs. State of Chhattisgarh, reported in (2025) 8 SCC 452, mere noncompliance with the procedure prescribed under Section 52A of the NDPS Act or non-violation of the Standing Orders/rules made thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence. The present case not only involves the non-compliance with the provisions of Section 52A of the NDPS Act but also the prosecution failed to produce the physical evidence either in its primary or secondary form. Moreover, the prosecution has not even taken the plea that the seized material had been destroyed during the course of the trial.

In the case of Jitendra (supra), the Hon'ble Apex Court highlighted the importance of the production of the seized articles as material exhibits and held that, in the absence of any explanation for their non-production, it would be deemed that they did not remain connected with the seizure report and the substance that was allegedly seized from the possession of the accused.

16/26 court. Learned counsel appearing for the Union of India has failed to furnish any explanation for the non-production of the alleged contraband in physical form before the trial court. Therefore, in such a situation, the prosecution cannot be said to have successfully established the connection between the forensic report in respect of the samples, which are stated to have been drawn from the seized contraband as per the prosecution, and the alleged narcotic substance that was allegedly seized from the truck. In the case of Union of India vs. Jaroopram, reported in (2018) 4 SCC 334, the Hon'ble Apex Court emphasized on the production of the bulk quantity of the seized contraband in the absence of evidence regarding its disposal. The relevant observations made by the Hon'ble Apex Court are extracted hereinbelow:

" 10. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create a doubt in the mind of the Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is for its disposal is to obtain an order from the competent court of Magistrate as envisaged

17/26 under Section 52-A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application (see also Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] )." 15.2. Thus non-production of the seized contraband may not be fatal to the prosecution in every case if there is reliable evidence in respect of the seizure of the alleged contraband and the drawing of samples therefrom. However, in the present matter, no such reliable evidence was adduced by the prosecution, nor did the prosecution contend that, on account of the destruction of the seized contraband, the same could not be produced before the trial court.

Further, in respect of offences under the NDPS Act, which mainly involve the recovery of contraband, the best evidence would be the seized material, which ought to be produced before the trial court. Though, after due compliance with the provisions of Section 52A of the NDPS Act and with the permission of the trial court or the concerned court for the destruction of such material, an explanation may be given for its non-production if the same has been destructed but no such situation exists in the present matter. Accordingly, this Court finds substance in the above contention raised by learned counsel for the appellants.

16. Now, I come to other aspects of the prosecution's

18/26 case particularly with regard to fairness in the investigation. 16.1. It has been argued by the appellants' counsel that, in the present matter, the NCB official who is said to have received the secret information became the Investigating Officer and also took the samples from the seized contraband. Thus, the receipt of the secret information, seizure of the alleged contraband, preparation of the seizure memo, and drawing of samples therefrom were all carried out by the same NCB official, which raises a question with regard to the fairness of the investigation.

Learned counsel has further argued that the conviction of the appellants is based solely on the evidence of the NCB officials, despite the prosecution's claim that two independent persons were present from the beginning of the seizure of the truck containing the alleged contraband until the completion of all the formalities relating to the preparation of the relevant documents, etc., who were neither produced nor examined by the prosecution before the trial court, without giving any plausible explanation.

19/26 before the trial court on that day. In the entire order-sheet of that date, there is no mention of the production of the contraband or the other seized materials before the trial court by the NCB officials.

16.2. In the light of the above contention, I have gone through the evidences. The examination of an independent witness is not a mandatory requirement, and such nonexamination cannot necessarily be deemed to be fatal to the prosecution case. However, the non-examination of independent witnesses, despite their presence on every occasion when all the documents pertaining to the seized contraband were prepared, without any explanation, may be taken against the prosecution to some extent. In the instant matter, as per the prosecution complaint filed by the NCB, the NCB team, before proceeding to the alleged place, contacted two persons, namely, Rambhajan Rai and Rajesh Kumar, to make them witnesses to all the proceedings pertaining to the search and seizure, etc., and made them aware of the secret information. Thereafter, they proceeded to the alleged place where the truck was to arrive. As per the prosecution case, the truck was intercepted in their presence and notice under Section 50 of the NDPS Act was given to the accused at the place of interception before them and

20/26 the further proceedings were conducted at the NCB office, Patna, before the Superintendent, K. V. Rovinson Gangte (PW3). During all these proceedings, as well as the proceedings that were later conducted before PW-3, the said two independent persons remained present, and in the complaint they were cited as prosecution witnesses. However, during the trial, they were neither produced nor examined. Surprisingly, before the trial court, PW-1 deposed in his cross-examination, in paragraph 20, that there was no document pertaining to the identification of the independent witnesses on record. PW-4, the Investigating Officer, deposed in his cross-examination, in paragraph 10, that he did not get the names and addresses of the independent witnesses verified and further stated that both the witnesses did not have any identity card with them.

He further stated in the same paragraph that, during the investigation, he did not verify the addresses of the said independent witnesses. It is not the case of the prosecution that the said two independent persons, namely, Rambhajan Rai and Rajesh Kumar, were present at the place of recovery by chance. Rather, the prosecution story shows that they were contacted by the NCB officials to make them witnesses to every procedure pertaining to the search, seizure, and sampling.

21/26 independent witnesses were present when the relevant proceedings with regard to the seized contraband were conducted before him.

16.3. In the said situation, when the two independent persons remained in contact with the NCB officials from the very beginning till the end of the search and seizure proceedings, there ought to have been a reasonable explanation for not producing them. The Investigating Officer stated that he did not make any attempt to get their names and addresses verified during the investigation. Therefore, this circumstance goes against the prosecution and raises a question regarding the fairness of the investigation, and the same cannot be ignored when the conviction for an offence attracting stringent punishment is based solely on the evidence of the NCB officials.

17. Now, I come to the conduct of the appellants. As per Section 8 of the Evidence Act, the conduct of a person who is an accused of an offence is relevant if such conduct influences or is influenced by any fact in issue or relevant fact. In the instant matter, as per the prosecution story, the NCB team received the secret information that the accused/appellants were coming from Assam via Siliguri in a truck carrying a huge consignment of narcotic materials, which was to be delivered to

22/26 two persons. Upon noticing the alleged truck coming from a particular direction, they signaled it to stop. At that time, the NCB officials were in plain clothes, and it was midnight. Upon noticing the signal, the appellants stopped the truck, got down from it in a normal manner, and did not make any attempt to flee from the place of interception. The said conduct of the appellants is relevant and lends support to their plea of being bona fide persons. In this regard, it is also relevant to mention that the NCB officials claimed to have identified the truck while it was in motion in the light of a torch when it was approaching them with its headlights on. However, it would be very difficult for a person to recognize the registration number of a moving vehicle under such circumstances.

18. There are some other circumstances which also raise some questions with regard to the fairness of the investigation. Firstly, after seizing the alleged truck along with the contraband, no attempt was made by the NCB officials to take the contraband and the accused persons including the truck to the nearest police station or Magistrate, and they were taken straightaway to the NCB office, Patna. Secondly, as per the prosecution, the notice under Section 50 of the NDPS Act was given to the appellants at the spot where the truck was

23/26 intercepted, though the instant matter does not relate to the recovery of any contraband from the person of the appellants. However, the said notice is relevant to show the fairness of the investigation. The prosecution witnesses deposed that the notice under Section 50 of the NDPS Act was given to the appellants at the spot, upon which they made their endorsement acknowledging receipt of the same with their signatures. But, from a perusal of Exhibit-P/4, the notice given under Section 50 of the NDPS Act, only the signatures of the appellants are available, and further, the place where the said notice was given is shown as Patna, whereas, as per the prosecution case, the same was given to the appellants at Jethuli, Fathua, which is situated about 45 kilometers from Patna.

Thirdly, after the bodily search of the appellants, a search memo was also prepared, and it is the case of the prosecution that, except for the preparation and service of the notice under Section 50 of the NDPS Act, which was conducted at the spot of recovery, all other proceedings were carried out at the NCB office, Patna, including the said bodily search of the appellants. Therefore, if the said fact is deemed as true, then the notice given to the appellants under Section 50 of the NDPS Act ought to have been recovered from the possession of the appellants.

24/26 in the Jamatalashi Memo (Exhibit P-9), there are no details of recovery of the notice which is said to have been given to the appellants under Section 50 of the NDPS Act. Fourthly, as per the prosecution case, a panchnama was also prepared at the NCB office, Patna, but the same was not brought on record. 18.1. In view of these circumstances appearing from the prosecution evidences, the evidence of the two independent persons, namely, Rambhajan Rai and Rajesh Kumar, was very material, as they were the best independent persons to explain these circumstances. But, they were withheld by the prosecution, and their non-examination, in the context of other circumstances, particularly the non-production of the seized contraband before the trial court, non-preparation of the inventory, and non-drawing of samples from the seized contraband before the Magistrate, appears to be fatal to the prosecution case.

Conclusion:-

19. For the reasons discussed above, this Court is of the considered opinion that though the prosecution witnesses, PWs-1, 2, 3, and 4, who were NCB officials, remained consistent with the prosecution story in their court evidence, but the non-production of the seized contraband before the trial

25/26 court without any explanation, complete non-compliance with Section 52A of the NDPS Act, and further, non-examination of the two independent persons who were made witnesses by the NCB intentionally, cast serious doubt on the prosecution case. Therefore, it would not be safe to convict the appellants for the charged offences under the NDPS Act in connection with the seized narcotic contraband. The findings and conclusion of the trial court holding the appellants guilty of the charged offences do not inspire the confidence of this Court. Accordingly, this Court holds that the prosecution miserably failed to prove the guilt of the appellants for the charged offences beyond reasonable doubt.

On account of the above-discussed circumstances, the prosecution was not entitled to get the benefit of the presumption under Section 54 of the NDPS Act, since from the very beginning, the prosecution failed to discharge its burden, and therefore, the impugned judgment of conviction dated 10.07.2024 and the impugned order of sentence dated 16.07.2024 passed by the learned Exclusive Special Judge (NDPS Act), Court No. 1, Patna, in connection with Special (NDPS Act) Case No. 7 of 2018 arising out of F. No. NCB/PZU/V/04/2018, convicting and sentencing the appellants for the charged offences, are hereby set aside.

26/26

20. Accordingly, the appeal stands allowed.

21. Both the appellants are in jail, therefore, they are directed to be released forthwith if their custody is not required in any other case.

22. Let a copy of this judgment, as well as the records of the trial court, be sent forthwith to the court concerned for needful compliance and necessary action. (Shailendra Singh, J) maynaz/- AFR/NAFR AFR CAV DATE N/A Uploading Date 15.07.2026 Transmission Date 15.07.2026