Conviction under NDPS Act Set Aside Over Hostile Independent Witnesses, Missing Seized Contraband, and Non-Compliance with Section 52A Safeguards
In a significant judgment dated October 8, 2026, the Patna High Court, presided over by Justice Sandeep Kumar, acquitted Ritesh Kumar and another accused, who were earlier convicted under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for allegedly possessing 500 grams of charas each. The appellants were initially sentenced to rigorous imprisonment for five years along with a fine.
The case arose from a police raid on December 23, 2011, at Shyam Cinema Hall, Muzaffarpur, based on secret information about a gathering of criminals. The police claimed recovery of charas from the appellants in the presence of two independent witnesses, Neeraj Kumar and Shyam Yadav. However, during the trial, these witnesses turned hostile and denied witnessing any seizure, merely confirming their signatures on the seizure list without knowledge of its contents.
The High Court critically examined the prosecution's case and found multiple serious infirmities:
1. Absence of Contemporaneous Documentation:
No station diary entries or any documentary evidence were produced to prove receipt of secret information, constitution of the raiding party, or its departure. The prosecution failed to provide records from the involved police stations corroborating the raid details, thus undermining the credibility of the police narrative.
2. Hostile Independent Witnesses:
The two independent witnesses, employees of the cinema hall, not only failed to support the seizure but explicitly denied any involvement. This was deemed highly significant since independent witnesses are crucial in narcotic cases to rule out fabrication.
3. Non-Compliance with Section 52A of NDPS Act:
The police failed to prepare an inventory of the seized narcotic, did not apply to the Magistrate for certification of the inventory, and did not take photographs or draw representative samples under Magistrate supervision as mandated. This non-compliance struck at the root of the prosecution's case.
4. Missing Seized Substance and Sample Custody Issues:
The actual seized charas was never produced before the trial court. Only a police-drawn sample was produced a day after the seizure and sent for forensic examination with a delay of almost a year. No evidence was led about the custody of the sample during this period, no malkhana register was produced, and no witnesses were examined to explain the custody chain, raising doubts about the sample's integrity.
5. Inadmissible Confession Evidence:
The police claimed knowledge that the seized substance was charas based solely on disclosure by the accused to the police officers. The Court held that such disclosures to police are inadmissible confessions under Section 25 of the Indian Evidence Act and cannot establish the nature of the seized substance.
6. Contradictions Among Police Witnesses:
Police witnesses gave conflicting testimonies about whether the accused were offered the option to be searched before a Magistrate, undermining their reliability. None of the police officers could identify who arrested whom, and most denied having arrested anyone.
7. Investigation by Raiding Party Member:
Though investigation conducted by a member of the raiding party is not per se invalid, the Court observed it deprived the prosecution of independent verification of facts.
The Court reiterated settled legal principles from Supreme Court precedents emphasizing that in NDPS cases, the prosecution must establish beyond reasonable doubt the conscious possession of the accused and prove the identity of the narcotic substance through admissible evidence and strict compliance with procedural safeguards.
Consequently, the Court held that the prosecution failed to discharge its heavy burden. The presumption under Section 54 of the NDPS Act, which shifts the burden to the accused, could not be invoked as the foundational facts of seizure and identity of the substance were not established.
The Patna High Court set aside the conviction and sentence of the appellants and acquitted them of all charges. The appellants, who were on bail, were discharged from their bail bonds, and any fine deposited was ordered to be refunded.
This judgment underscores the necessity for strict adherence to procedural safeguards in narcotic prosecutions and the critical role of independent witnesses and documentary evidence in upholding convictions under the stringent NDPS Act.
Bottom Line:
NDPS Act - Conviction under Section 20(b)(ii)(B) set aside - Where independent seizure witnesses did not support seizure, no contemporaneous station diary entries were produced, seized contraband was not produced before trial court, there was complete non-compliance of Section 52A, custody of sample for nearly one year remained unexplained, and FSL report could not be connected with alleged seizure, prosecution failed to prove conscious possession of charas beyond reasonable doubt - Presumption under Section 54 could not be invoked.
Statutory provision(s): Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 20(b)(ii)(B), 50, 52A, 54, 55; Indian Evidence Act, 1872 Section 25; Code of Criminal Procedure, 1973 Section 313
Ritesh Kumar v. State of Bihar, (Patna) : Law Finder Doc Id # 2993184
