Simplified Explanation of the Judgment

In February 2021, the Patna High Court set aside the conviction of a man accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), emphasizing that fair trial is a constitutional guarantee under Article 21 of the Constitution. The Court found serious lapses in investigation and violations of procedural safeguards, leading to the acquittal of the accused.

The appellant had been convicted by a trial court under Sections 20(b)(ii)(C) (possession of commercial quantity of cannabis) and 27(A) (financing illicit traffic and harbouring offenders) of the NDPS Act. He was sentenced to ten years’ rigorous imprisonment and fined Rs. 1,00,000 on each count, with sentences running concurrently. The conviction arose from a raid conducted by the police in March 2014 at his residence in Buxar district, where nearly 30 kilograms of cannabis was allegedly recovered.

On appeal, the Patna High Court scrutinized the prosecution’s evidence and found multiple deficiencies:

1. Unreliable Witnesses: Independent seizure witnesses (PW-1, PW-2, and PW-3) did not support the prosecution’s case. They testified that they were asked to sign blank papers at the police station and were not present during the alleged search and seizure. Since they were not declared hostile by the prosecution, their testimony was binding against the State and could be relied upon by the defence.
2. Non-examination of Magistrate: The prosecution failed to examine the Circle Officer (acting as Magistrate), who was allegedly present during the search. His absence weakened the foundation of the prosecution’s story.
3. Unclear Ownership of the House: The investigating officer admitted that he did not verify whether the house from which cannabis was seized actually belonged to the appellant. Without proof of ownership or possession, the recovery could not be linked conclusively to the accused.
4. Failure to Comply with Section 42 NDPS Act: The Court found no evidence that the investigating officer recorded the confidential information in writing or informed his superior officers as mandated under Section 42(1) and 42(2) of the Act. Total non-compliance with this requirement was fatal to the prosecution’s case.
5. Bias in Investigation: The informant of the case himself acted as the investigating officer. The Court observed that such dual roles create a likelihood of bias and undermine the fairness of the investigation.
6. Delay in Sending Samples: The samples of seized narcotics were sent for forensic examination with unexplained delay of nearly two months, creating doubts about tampering and reliability of the evidence.
7. Improper Conviction under Section 27(A): The Court highlighted that there was no evidence to show the appellant financed or harboured anyone involved in drug trafficking. Conviction under this section was unjustified.

Based on these infirmities, the Court concluded that the prosecution had failed to establish guilt beyond reasonable doubt. The trial court, in convicting the appellant, had overlooked these critical deficiencies.

Accordingly, the Patna High Court set aside the conviction and sentence, allowed the appeal, and directed the immediate release of the appellant from jail.

Significance or Implication of the Judgment

• For accused persons: The ruling reinforces the importance of procedural safeguards under the NDPS Act. Even in cases involving serious allegations like narcotics possession, conviction cannot stand if basic legal requirements are not met.
• For police and prosecution: The judgment sends a strong message that sloppy investigations, non-compliance with statutory safeguards, and biased roles (informant also acting as investigating officer) will not be tolerated.
• For the judiciary and public: It reaffirms that the right to a fair trial, including impartial investigation and compliance with statutory requirements, is a constitutional mandate under Article 21.

Legal Issue(s) Decided and the Court’s Decision with Reasoning

• Issue 1: Whether conviction can be sustained when seizure witnesses deny recovery and were not declared hostile.
  • Decision: No.
  • Reasoning: Testimonies of PW-1, PW-2, and PW-3 contradicted prosecution; since they were not declared hostile, their statements bound the prosecution.
• Issue 2: Whether compliance with Section 42 NDPS Act is mandatory.
  • Decision: Yes.
  • Reasoning: Total non-compliance with Section 42(1) and 42(2) vitiates prosecution; here, there was no proof that information was recorded or conveyed to superiors.
• Issue 3: Whether an informant can also act as investigating officer.
  • Decision: Not desirable.
  • Reasoning: Creates likelihood of bias, undermines fair trial, and prevents cross-verification of earlier statements.
• Issue 4: Whether conviction under Section 27(A) was justified.
  • Decision: No.
  • Reasoning: No evidence of financing illicit traffic or harbouring offenders; conviction bad in law.

Judgments Referred by Parties

• Mohd. Alam Khan v. Narcotics Control Bureau, 1996 Cri LJ 2001.
• Karnail Singh v. State of Haryana, (2009) 8 SCC 539.

Judgments Relied Upon or Cited by Court

• Raja Ram v. State of Rajasthan, (2005) 5 SCC 272.
• Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5 SCC 258.
• Md. Alam Khan v. Narcotics Control Bureau, 1996 Cri LJ 2001.
• Karnail Singh v. State of Haryana, (2009) 8 SCC 539.

Case Title

Sanjay Kamkar @ Sanjay Kumar v. The State of Bihar

Case Number

Criminal Appeal (SJ) No. 1479 of 2019

Citation(s)

2021(1) PLJR 793

Coram and Names of Judges

Hon’ble Mr. Justice Birendra Kumar

Names of Advocates and who they appeared for

• For the appellant: Mr. Sada Nand Roy, Advocate
• For the respondent (State of Bihar): Mr. Zeyaul Hoda, APP

Link to Judgment

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