Delhi District Court
State vs Vitalis Chinedu Opara on 11 March, 2026
IN THE COURT OF SH. VIRENDER SINGH : SPECIAL
JUDGE (NDPS) (CENTRAL): TIS HAZARI COURTS: DELHI
SESSIONS CASE NO. 723/17
CNR NO. DLCT01-014481-2017
STATE Versus Vitalis Chinedu Opara
@ Eke James Opara S/o Opara
R/o Mbaitoli Owerri IMO State,
Nigeria.
FIR No. 132/2017
U/s 21(b) NDPS Act & U/s 14 of
Foreigners Act, 1946.
P.S. Crime Branch
Date of Institution : 06.10.2017
Date of arguments : 18.02.2026
Date of Decision : 11.03.2026
Final Decision : Acquitted
JUDGMENT
1. Vide this judgment, I shall decide the charge-sheet filed against accused Vitalis Chinedu Opara @ Eke James Opara S/o Opara for offence under Section 21(b) of NDPS Act and U/s 14 of Foreigners Act, 1946.
BRIEF FACTS OF THE CASE
2. On 08.08.2017 at about 2:20 PM, one secret information was received by SI Vinay Kumar to the effect that one person of African origin would come in front of Redwood School, Burari to supply Cocaine to someone and if raid is conducted then he can be arrested.
3. SI Vinay Kumar had shared the information with Inspector Upender after verification and thereafter, he (Insp. Upender) satisfied himself about the information and informed SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 1/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:21:39 +0530 ACP Sh. Sandeep Lamba through mobile phone. ACP asked him to take appropriate action. Thereafter, secret information was recorded vide DD No. 12 in compliance of Section 42 NDPS Act by SI Vinay Kumar and copy of which was produced before Insp. Upender, who forwarded the same to the ACP. On the directions of Insp. Upender, SI Vinay Kumar constituted a raiding team including HC Rakesh and HC Sushil and they left their office by a private car driven by Ct. Pradeep. SI Vinay Kumar recorded DD no. 13 regarding their departure from the office of Narcotic Cell. IO had collected IO's kit bag, one contraband detection kit and one Electronic Weighing Machine from the office and left for the spot i.e. near Red Wood School, Main Sant Nagar Marg, Burari, Delhi via in front of Gurudwara, Shanti Van Red Light, ISBT Kashmiri Gate, Majnu Ka Tila in a private vehicle i.e. Maruti Alto Car bearing registration no. DL-2CAQ-6527 alongwith aforesaid police officials and secret informer. On the way at ISBT Kashmere Gate, IO SI Vinay Kumar asked 4-5 passersby and after passing Chowk of Majnu Ka Tila, he asked 6 passersby to join the investigation after disclosing about the secret information but they left after disclosing their reasons.
4. Thereafter, driver Ct. Pradeep was asked to park the car about 25-30 meters from the spot, on the other side of the road, in front of ICICI Bank. SI Vinay Kumar directed Ct. Pradeep to bring the car at the spot as and when he gave signal to him. SI Vinay Kumar deployed the members of the raiding party within the radius of 20-25 meters of the spot and he alongwith the secret informer took position near Red Wood School.
5. Thereafter, position was taken by the raiding team and at about 2:15 PM, one African National came from the side SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 2/43 by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:21:51 +0530 of B-1 Block of Sant Nagar. Then, the secret informer pointed out the said person as the same person about whom he furnished information about supply of Cocaine. After pointing out the accused, the secret informer left the place. Thereafter, accused started waiting for someone but after 4-5 minutes, he started going back towards B-1 Block of Sant Nagar. Then he was followed and apprehended. Accused disclosed his name as Vitalis Chinedu Opara R/o Nigeria. SI Vinay Kumar introduced himself and the members of raiding party to the accused. Accused was informed about the secret information as well as the fact that he sells Cocaine in Delhi in English language and they have information that he has come to that place to supply Cocaine to someone and there are chances that Cocaine may be recovered from him and for that purpose, he has to be searched. He was apprised that he can take personal search of police officials as well as their vehicle and his personal search can be taken before a Gazetted Officer or Magistrate. He was informed about the meaning of Gazetted Officer and Magistrate and notice U/s 50 NDPS Act was served upon him in English language. Accused had refused to exercise his option of searching the raiding party, private vehicle as well as of getting his search conducted before Gazetted Officer or Magistrate and he had replied in English language below the carbon copy of notice and also signed the same.
6. Thereafter, during his cursory search, one polythene was recovered from the right side front pocket of jeans pant worn by the accused, which was tied with rubber band. Powdery substance was found inside the same. The said polythene was opened by removing the rubber band and by checking the substance through Field Testing Kit, it was found Cocaine. The SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 3/43 VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:21:57 +0530 weight of Cocaine with plythene was found 70 gram when it was weighed with Electronic Weighing Machine. Thereafter two samples of 2 gram each were taken out of the substance and two pullandas were prepared, which were given Mark A and B. Remaining Cocaine was again put in same polythene and its pullanda was also prepared, which was given Mark C. SI Vinay Kumar then seized all the pullandas/ parcels and FSL form through the seizure memo.
7. Thereafter, FSL form was filled and sealed with the seal of VK. The seal was also affixed on FSL form. The seal after use was given to HC Sushil. Thereafter, tehrir was prepared and it was given to HC Rakesh alongwith all three parcels/ pullandas and FSL form and carbon copy of seizure memo with instructions to provide the tehrir to Duty Officer PS Crime Branch for registration of FIR and to hand over the case property to SHO PS Crime Branch in compliance of Section 55 NDPS Act. HC Rakesh left the place in private vehicle i.e. Maruti Alto Car, which was being driven by Ct. Pradeep for PS Crime Branch. There, he got registered the FIR and handed over the case property and FSL form to SHO concerned, who affixed his seal i.e. KCS on the case property and deposited the same with MHC(M) by getting the entry in register no. 19 vide DD no. 23.
8. Thereafter, HC Rakesh took the copy of FIR and original Tehrir and went to the office at Kotwali and handed over copy of FIR and original tehrir to IO ASI Sudhir Kumar as further investigation was marked to him. Thereafter, at about 8:45 PM, IO ASI Sudhir Kumar reached the spot where SI Vinay Kumar produced accused before him. He also handed over the relevant documents to IO. Thereafter, site plan was prepared at SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 4/43 Digitally signed VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:22:05 +0530 the instance of SI Vinay Kumar. Accused was arrested and he was personally searched. He was interrogated and his disclosure statement was recorded. Thereafter, further investigation was done. Accused was produced before the concerned Court. IO recorded statements of witnesses U/s 161 Cr.PC and also sent the case property to FSL. After completion of investigation, charge- sheet was filed against the accused for the offences U/s 21 NDPS Act and U/s 14 of Foreigners Act.
9. Thereafter, the supplementary charge-sheet qua FSL result was filed.
10. After consideration of the charge-sheet, cognizance was taken and copy of main charge-sheet and supplementary charge-sheets were supplied to accused against acknowledgment in compliance of Section 207 Cr.PC.
CHARGE
11. Thereafter, arguments on charge were heard and charge was framed against the accused for the offences punishable U/s 21(b) of NDPS Act and U/s 14 Foreigners Act, 1946 on 22.11.2017.
PROSECUTION EVIDENCE
12. As per record, prosecution has examined total 13 witnesses and the crux of their evidence is as under :-
(i) PW1 ACP Sh. Sandeep Lamba, Special Investigation Unit, Crime Branch, Kotwali, Delhi, who proved the documents i.e. Attested copy of the DD no. 12 as Ex. PW1/A; Report U/s 57 of NDPS Act regarding seizure of 70 grams of Cocaine recovered SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 5/43 by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:22:31 +0530 from the possession of the accused as Mark PW1/A & Report U/s 57 of NDPS Act regarding arrest of accused as Mark PW1/B. The said witness was not cross-examined by the Ld. counsel for the accused.
(ii) PW2 Insp. Kailash Chander, D1/729, STF, Crime Branch, Delhi is the then SHO of PS Crime Branch, Pushp Vihar, who proved the documents i.e. Entry regarding handing over three parcels alongwith FSL form and carbon copy of seizure memo to MHC(M) for deposition in the Malkhana as Mark PW2/A;
Attested copy of DD entry no. 23 as Ex. PW2/A; Parcel Mark B as Ex. P1 and Parcel Mark C as Ex. P2 and the Parcel produced by HC Rakesh before him as Ex. P3. The said witness has been cross-examined by Ld. counsel for accused.
(iii) PW-3 ASI Geeta, 1005 Crime, Crime Branch, Pushp Vihar, Delhi, who proved the documents i.e. Attested copy of DD no. 22 as Ex. PW3/A (OSR); Rukka as Mark A; Copy of FIR no. 132/17 as Ex. PW3/B; Endorsement on rukka as Ex. PW3/C; Attested copy of DD no. 24 as Ex. PW3/D; Certificate U/s 65B of Indian Evidence Act as Ex. PW3/E. The said witness has been cross- examined by Ld. counsel for accused.
(iv) PW4 Ct. Pradeep, 1234 Crime, SIU, Darya Ganj, Kotwali, Crime Branch, Delhi is the witness to the recovery. He deposed about the recovery of case property and the investigation done before him. The said witness has been cross-examined by Ld. counsel for accused.
(v) PW5 ASI Joginder, 1461 Crime, SIU, Darya Ganj, Kotwali, Delhi is the second IO of the case, who proved the SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed by Pages No. 6/43 VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:22:38 +0530 documents i.e. FSL result dated 30.10.2017 as Ex. PW5/A. The said witness has been cross-examined by Ld. counsel for accused.
(vi) PW6 Ct. Shazad, 966, PS Crime Branch, Delhi is the then Reader to ACP Sh. Sandeep Lamba, Central Range, Old Kotwali, Daryaganj, Delhi, who proved the documents i.e. Attested copy of DD no. 12 as Ex. PW6/A; Copy of entry in the diary register at serial no. 1876 as Ex. PW6/B(OSR); Report U/s 57 of NDPS Act regarding seizure of 70 gram of Cocaine as Ex. PW6/C; Entry at diary register at Sl. No. 1883 in respect of the arrest report as Ex. PW6/D; Report U/s 57 of NDPS Act regarding arrest of accused as Ex. PW6/E. The said witness was not cross- examined by the accused.
(vii) PW7 Insp. Upender Kumar, SIU, Crime Branch, Kotwali, Darya Ganj, Delhi, who proved the documents i.e. Copy of DD entry no. 12 as Ex. PW1/A; Reports to ACP, SIU as Ex. PW6/C & Ex. PW6/E respectively. The said witness has been cross- examined by the Ld. counsel for accused.
(viii) PW8 ASI Jag Narain, 123 Crime, PS Crime Branch, Pushp Vihar, Delhi is the then MHC(M) at PS Crime Branch, Pushp Vihar, who proved the documents i.e. Copy of entry no. 2694 in the register no. 19 as Ex. PW8/A; Copy of entry no. 2695 recorded in register no. 19 of Malkhana as Ex. PW8/B(OSR); Road Certificate no. 241/21 as Ex. PW8/C(OSR); Acknowledgment form of FSL as Ex. PW8/D (OSR) & Notice U/s 50 of NDPS Act as Ex. PW8/E. The said witness has been cross-examined by the Ld. counsel for accused.
SC No. 723/2017, FIR NO. 132/2017 Digitally signed
State Vs. Vitalis Chinedu Opara VIRENDER by VIRENDER
SINGH Pages No. 7/43
SINGH Date: 2026.03.11
16:22:46 +0530
(ix) PW9 HC Rakesh, 1262 Crime, SIU Crime, Kotwali, Delhi
is the witness to the recovery, who proved the documents i.e. Carbon copy of the notice U/s 50 NDPS Act in the name of accused as Ex. PW9/A; Reply to the said notice as Ex. PW9/B; Seizure memo of all three parcels and FSL form as Ex. PW9/C; Parcel Mark B as Ex. P1; Parcel Mark C as Ex. P2 and Parcel as Ex. P3. The said witness has been cross-examined by the Ld. counsel for accused.
(x) PW10 ASI Sudhir Kumar, No. 475, SIU, Crime Branch, Darya Ganj, Kotwali, Delhi, who proved the documents i.e. Arrest memo as Ex. PW10/A; Personal search memo as Ex. PW10/B; Disclosure statement as Mark PW10/C; Site plan as Ex. PW10/D; Attested copy of DD no. 2 as Ex. PW10/E; report U/s 57 of NDPS Act regarding arrest of accused as Ex. PW6/E; attested copy of DD no. 27 as Ex. PW10/F & Notice U/s 50 of NDPS Act as Ex. PW8/E. The said witness has been cross- examined by the Ld. counsel for accused.
(xi) PW11 SI Vinay Kumar, NO. D-4806, SIU, Crime Branch, Darya Ganj, Delhi is the first IO of the case, who proved the documents i.e. attested copy of DD no. 13 as Ex. PW11/A(OSR); reply of the accused to the notice U/s 50 NDPS Act as Ex. PW9/B; carbon copy of said notice as Ex. PW9/A; rukka as Ex. PW11/B; personal search memo as Ex. PW10/B; disclosure statement of accused as Ex. PW10/C; original notice as Ex. PW8/E & report U/s 57 of NDPS Act regarding seizure memo of Cocaine as Ex. PW6/C. The said witness has been cross- examined by the Ld. counsel for accused.
(xii) PW12 HC Sushil Kumar, EIB, L Block, Vikas Bhawan, SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 8/43 VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:22:54 +0530 ITO (Excise Department), Delhi is the witness to the recovery, who proved the documents i.e. attested copy of DD no .13 as Ex. PW11/A; notice U/s 50 NDPS Act as Ex. PW9/A; reply to the said notice as Ex. PW9/B; seizure memo as Ex. PW9/C; rukka as Ex. PW11/B; site map as Ex. PW10/E; personal search memo as Ex. PW10/B; disclosure statement of accused as Mark PW10/E; Parcel C as Ex. P2; Parcel A as Ex. P-3 & Parcel Mark B as Ex. P1. The said witness has been cross-examined by the Ld. counsel for accused.
(xiii) PW13 Sh. Shailendra Yadav, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi, who proved the documents i.e. Report prepared by said witness as Ex. PW5/A (now Ex. PW13/A). The said witness has been cross-examined by the Ld. counsel for accused.
13. Thereafter, PE was closed.
STATEMENT OF ACCUSED
14. Statement of accused was recorded U/s 313 Cr.PC by putting the entire incriminating evidence to him.
DEFENCE EVIDENCE
15. Accused chose to lead defence evidence and examined one witness Sh. Deepak Kumar, SA/ Executive, Foreigners Regional Registration Office, Delhi as DW1. Thereafter, Defence Evidence was closed.
FINAL ARGUMENTS
16. Thereafter, final arguments were heard from both sides at length.
SC No. 723/2017, FIR NO. 132/2017 Digitally signed State Vs. Vitalis Chinedu Opara VIRENDER by VIRENDER SINGH Pages No. 9/43 SINGH Date: 2026.03.11 16:23:01 +0530
17. Ld. Counsel for accused has argued that the accused has been falsely implicated and the case property is planted upon him. There are no public witnesses, videography and photography of the alleged recovery.
18. He has also argued that the investigating agency has not complied Section 52A NDPS Act.
19. In respect of offence U/s 14 NDPS Act, Ld. Counsel for accused has argued that the passport and visa of accused was valid. He also argued that the accused was arrestedunder mistaken identity.
20. On the other hand Ld. Addl. PP for the State has argued that the prosecution has proved its case against the accused beyond reasonable doubts by leading trustworthy evidence, therefore the accused should be convicted for all the offences alleged against him.
APPRECIATION OF EVIDENCE AND FINDINGS OF THE COURT
21. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", it was observed by Hon'ble Apex court that no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 10/43 Digitally signed VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:23:08 +0530 drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief.
22. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21', the Hon'ble apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and reject the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same.
23. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Hon'ble Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth.
24. Hon'ble Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381 ", held that SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 11/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:23:15 +0530 the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, the conviction can be maintained. It is the duty of the court to separate the grain from chaff.
25. Hon'ble Apex Court in State of UP Vs. M.K. Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
26. Further, Hon'ble Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed as under :-
"while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 12/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:23:23 +0530 in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
27. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. State of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 13/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:23:30 +0530 be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
28. Evidently, the binding judicial pronouncements casts a duty upon the Trial Court to cull out the nuggets of truth from the evidence available on record. To sum up, while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
29. Having noted the general principles of appreciation of evidence, let us now examine the material available on record to seek an answer to determine the issue of guilt of accused.
REASON FOR DECISION
30. As per the facts of the case, on 08.08.2017 at about 2:20 PM on Main Sant Nagar Marg, Burari, near Redwood School, Opposite Shree Ratnam Restaurant, Delhi, the accused Vitalis Chinedu Opara was apprehended on a secret information by the police staff of Crime Branch and from the possession of accused Cocaine measuring 70 grams was recovered and he was found living in India without any valid Visa and thus he committed an offence punishable under Section 21 (b) NDPS Act & Section 14 of Foreigners Act. The said Sections are reproduced herein-below for needy reference.
31. SECTION 21(b) of NDPS Act :-
"Punishment for contravention in relation to manufactured drugs and preparations.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 14/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:23:36 +0530 uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) ....
"(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees."
32. SECTION 14 OF FOREIGNERS ACT [14. Penalty for contravention of provisions of the Act, etc.- Whoever-
(a) remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) does any act in violation of conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.
Explanation-: For the purposes of the section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rule, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920).
33. (1) RECOVERY OF CONTRABAND ARTICLE i.e. 70 GRAM COCAINE FROM ACCUSED.
34. The case of the prosecution hangs upon the testimony of star witnesses SI Vinay Kumar (PW-11), HC Rakesh (PW-9) and HC Sushil (PW-12) and other relevant witnesses.
SC No. 723/2017, FIR NO. 132/2017 Digitally signed by State Vs. Vitalis Chinedu Opara VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 Pages No. 15/43 16:23:45 +0530
35. PW-11/ SI Vinay Kumar, No. D-4806 has deposed that on 08.08.2017, he was posted as Sub Inspector in the Central Range, Crime Branch Old Kotwali, Darya Ganj, Delhi. On that day, at about 12:15 p.m, one secret informer came to his office and he told him that on that day i.e. on 11.03.2015, at about 2:15 p.m, one person of African origin would come in front of Redwood School, Burari to supply Cocaine to someone.
36. PW-11/ SI Vinay Kumar further deposed that he produced the secret informer before Inspector Upender and apprised him about secret information. He further deposed that Inspector Upender also made enquiry from secret informer and after having satisfied, he further conveyed information to Sh. Sandeep Lamba, ACP. He further deposed that after talking to the ACP, Inspector Upender directed him to constitute a raiding party and take necessary steps. He further deposed that thereafter, he recorded DD No.12 in compliance of provisions of Section 42 of NDPS Act, which was proved by him as Ex. PW1/A, which bears his signature at point D. He further deposed that copy of said DD was put up before Inspector Upender, who forwarded the same to the ACP.
37. PW11/ SI Vinay Kumar further deposed that he constituted raiding party comprising himself, HC Rakesh, HC Sushil and they left their office by a private car driven by Ct. Pradeep - Driver. He further deposed that he recorded DD No.13 regarding their departure from office for the disclosed place/ spot. The said witness has proved the attested copy of said DD No.13 as Ex. PW11/A (OSR). He further deposed that he collected IO's kit bag, one Contraband Detection Kit and one Electronic Weighing Machine from the office.
SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 16/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:23:55 +0530
38. PW-11/ SI Vinay Kumar further deposed that at about 01:10 PM, he alongwith the raiding party members and the secret informer proceeded from the office by a private vehicle i.e. Maruti Alto Car for the disclosed place i.e. near Red Wood School, Main Sant Nagar Marg, Burari Delhi. He further deposed that they proceeded through the route via Shanti Van Traffic Light Ring Road, ISBT Kashmiri Gate and Majnu Ka Tila. He further deposed that on the way at ISBT Kashmiri Gate, he asked 4-5 passersby to join the raiding party but none agreed and they went away after disclosing their reasonable excuses.
39. PW-11/ SI Vinay Kumar further deposed that at about 02:00 PM, they reached at the spot i.e. near Red Wood School, Main Sant Nagar Marg, Burari Delhi. He further deposed that at the spot, he again asked 4-5 passerby to join them but none of them agreed on account of their different reasons. He further deposed that the Alto Car was being driven by Ct. Pradeep and he was asked to stay about 25-30 meters away towards North side from the spot alongwith the car. He further deposed that he directed Ct. Pradeep to bring the car at the spot as and when he gave signal to him. He further deposed that he deployed the member of the raiding party within the radius of 20- 25 meters of the spot. He further deposed that he alongwith the secret informer took position near Red Wood School.
40. PW-11/ SI Vinay Kumar further deposed that at about 02:15 PM, one African National came from the side of B-1 Block of Sant Nagar. He further deposed that the said person stopped in front of Vacant Plot near Red Wood School. He further deposed that the secret informer pointed out the said SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 17/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:24:02 +0530 person as the same person about whom he furnished information about supply of Cocaine. He further deposed that after pointing out the accused, the secret informer went away from there. He further deposed that the said person after waiting for someone for about 4-5 minutes, started going back towards B-1 Block of Sant Nagar. He further deposed that then they apprehended the said person. He further deposed that the name of said person was disclosed by him as Vitalis Chinedu Opara, R/o Nigeria i.e. accused Vitalis Chinedu Opara. He is correctly identified the accused present in Court on the day of evidence of the said witness.
41. PW-11/ SI Vinay Kumar further deposed that he introduced himself and members of the raiding party to the accused and told him about the secret information in English Language. He further deposed that he also told the accused that he was to be subjected to search in order to recover Cocaine, if any. He further deposed that he also apprised the accused about his legal rights that his search could be conducted in presence of Magistrate or a Gazetted Officer, if he so desired. He further deposed that the accused refused to avail his right. He further deposed that he offered his search and the personal search of the other members of the party and the private vehicle to the accused but he again refused to take their search.
42. PW-11/ SI Vinay Kumar further deposed that he then prepared notice under Section 50 of NDPS Act in respect of his legal rights and served upon the accused in original. He further deposed that the accused wrote down his reply in English language below the carbon copy of the notice which he retained with him. He proved the reply of the accused as Ex.PW9/B SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 18/43 VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:24:10 +0530 which bears his signature at Point B. He further proved the carbon copy of the notice as Ex.PW9/A which bears his signature at Point B.
43. PW-11/ SI Vinay Kumar further deposed that he then conducted personal search of accused and found one polythene from the right side of his wearing jeans pant. He further deposed that the mouth of said polythene was tied with the rubber band. He further deposed that the said polythene was found containing some powdered substance of white colour. He took out a very small quantity from the said substance and tested it on the field testing kit. He further deposed that the said substance was revealed to be Cocaine. He further deposed that he then weighed the substance with polythene and it was found to be 70 grams.
44. PW-11/ SI Vinay Kumar further deposed that he drew two samples each of two grams from the said substance and kept them in two separate small polythenes and the same were converted into cloth parcels. Both the parcels were given Mark A & B. He further deposed that the remaining substance was kept in the same polythene and it was converted into cloth parcel which was marked as 'C'. He then filled in FSL Form. He sealed all three parcels with his seal bearing impression 'VK'. The same seal was affixed on the FSL Form. He further deposed that the seal was handed over to HC Sushil after use. He further deposed that he then seized all the parcels and FSL Form through the seizure memo, which was proved as Ex. PW9/C which bears his signature at Point B.
45. He further deposed that thereafter, he prepared rukka SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 19/43 by VIRENDER VIRENDER SINGH SINGH Date:
2026.03.11 16:24:17 +0530 which is Ex. PW-11/B which bears his signature at Point A. He handed over the rukka to HC Rakesh alongwith three sealed parcels, FSL Form and Carbon copy of seizure memo with direction that the rukka was to be given to Duty Officer at PS Crime Branch for registration of FIR and the remaining items to be handed over to SHO, PS Crime Branch. He further deposed that accordingly, at about 05:00 PM, HC Rakesh took the aforesaid items with rukka to PS Crime Branch by the aforesaid Maruti Alto Car, which was driven by Ct. Pradeep.
46. PW-11/ SI Vinay Kumar further deposed that thereafter, at about 08:45 PM, ASI Sudhir reached at the spot as after registration of FIR, the further investigation was assigned to him. He apprised ASI Sudhir, the IO about the proceedings of recovery of Cocaine from accused. He handed over the documents to him which he had prepared earlier. He also handed over the accused to IO/ASI Sudhir. He further deposed that the IO prepared the site map of the place of recovery at his instance and which is Ex. PW-10/D which bears his signature at Point B. He further deposed that IO recorded the statement of HC Sushil at the spot. He further deposed that IO made inqury from the accused and arrested him vide arrest memo, which is Ex. PW10/A which bears his signature at Point B. He further deposed that IO conducted personal search of accused and recovered original notice under Section 50 of NDPS Act, cash Rs. 520/- in a black colour purse alongwith some passport size photographs and some visiting cards. He further deposed that IO prepared the personal search memo vide memo Ex. PW10/B which bears his signature at Point B. He further deposed that IO interrogated the accused and recorded his disclosure statement vide Mark PW10/C which bears his signature at Point C. He identifies the SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 20/43 by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:24:24 +0530 original notice recovered in the personal search of accused and which is Ex. PW8/E which bears his signature at Point B.
47. PW-11/ SI Vinay Kumar further deposed that thereafter, at about 11:15 PM, they left the spot finally and reached at PS Crime Branch. He further deposed that the IO deposited the personal belongings of the accused with the MHC(M) in the Malkhana. He further deposed that IO recorded the statement of SHO and MHC(M). Then they came to their office at Darya Ganj at about 02:00 AM. He further deposed that IO recorded his statement regarding the proceedings conducted by him.
48. PW-11/ SI Vinay Kumar further deposed that on the next day, he prepared the report under Section 57 NDPS Act regarding the seizure of Cocaine from the accused, which is Ex. PW6/C which bears his signature at point C. He further deposed that he put up the said report before Insp. Upender Singh, who forwarded the same to the ACP.
49. PW-11/ SI Vinay Kumar correctly identifies the case property in the Court during his evidence.
50. PW-11/ SI Vinay Kumar was cross-examined by Ld. counsel for the accused. In his cross-examination, PW-11 denied the suggestion that no such secret information as alleged by him was ever received in the Crime Branch Office or that no informer as stated by him, has ever joined the raiding party. He further denied the suggestion that the accused has been apprehended on mistaken identity or that he was not carrying any contraband in his possession. He further denied the suggestion that the accused SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed by VIRENDER Pages No. 21/43 VIRENDER SINGH SINGH Date:
2026.03.11 16:24:31 +0530 was not apprehended in the manner as stated by him in his examination-in-chief or that he was not present at the place of apprehension at any point of time. He further denied the suggestion that he had prepared the entire rukka while sitting in the office of Crime Branch or that the same was handed over to the Duty Officer or that no such exercise regarding the raid has ever been carried out or that the entire story has been cooked up. He further denied the suggestion that alleged notice under Section 50 NDPS Act was also prepared in the Crime Branch Office itself or that the same was never supplied/read over to the accused. He further denied the suggestion that no drugs as alleged by them, was ever recovered from the accused at the spot or that the drugs in question has been planted upon the accused to falsely implicate the accused. He further denied the suggestion that accused was never indulged in the activity of drugs paddling at any point of time or that he was called in the office of Crime Branch by the FRRO personnel or that he was implicated in this case under mistaken identity. He further denied the suggestion that the accused was having a valid document to stay in India or that the FRRO officials were doing some verification with regard to the identity of the African nationals or that in the said process the accused has been apprehended on mistaken identity or that later on he was implicated in a false case.
51. PW 12 HC Sushil Kumar, PIS No. 28030962 deposed that on 08.08.2017, he was serving as Head Constable in the Central Range, Crime Branch Old Kotwali, Darya Ganj, Delhi. He further deposed that on that day, SI Vinay called HC Rakesh, Ct. Pradeep and him in his office at about 01.00 p.m. and they were apprised about the secret information that one person of African origin would come near Redwood School, Sant Nagar, SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 22/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:24:38 +0530 Burari to supply Cocaine to someone at about 02:15 p.m. He further deposed that thereafter, a raiding party was constituted comprising of himself, HC Rakesh, SI Vinay and the secret informer and they all left their office by a private Alto car bearing no. DL 2CAQ 6527 which was driven by Ct.Pradeep.
52. PW-12 HC Sushil Kumar further deposed that SI Vinay recorded DD No. 13 regarding their departure from office for the said place/ spot. He proved the attested copy of said DD No. 13 as Ex. PW11/A. He further deposed that before departure, IO collected IO's Kit Bag, one Contraband Detection Kit and one Electronic Weighing Machine from the office.
53. PW-12 HC Sushil Kumar further deposed that at about 01:10 PM, he alongwith the other raiding party members and the secret informer proceeded from the office by a private vehicle i.e. Maruti Alto Car to the spot i.e. Red Wood School, Main Sant Nagar Marg, Burari Delhi. They proceeded through the route via Shanti Van Traffic Light Ring Road, ISBT Kashmiri Gate and Majnu Ka Tila. He further deposed that on the way, in front of ISBT Kashmiri Gate, SI Vinay asked 4-5 passersby to join the raiding party after disclosing them about the secret information but none agreed and they went away.
54. PW-12 HC Sushil Kumar further deposed that SI Vinay again asked public persons to join the raiding party after crossing the Red Light of Majnu Ka Tilla falling on the way to Red Wood School, Main Sant Nagar Marg, Burari Delhi but none agreed to join the investigation. He further deposed that thereafter, at about 02:00 PM, they all reached at the spot i.e. near Red Wood School, Main Sant Nagar Marg, Burari Delhi.
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Pages No. 23/43
Digitally signed
by VIRENDER
VIRENDER SINGH
SINGH Date: 2026.03.11
16:24:45 +0530
After reaching near the spot, IO SI Vinay directed the driver to stop the Alto car in front of ICICI Bank, Sant Nagar Branch at a distance of 20-25 meters from the Red Wood School, Sant Nagar, Burari and they were briefed again.
55. PW-12 HC Sushil Kumar further deposed that the curious onlookers gathered around them when they were briefed and SI Vinay asked 4-5 persons from them after disclosing them about the secret information and asked them to join the raid but none agreed. Ct. Pradeep was asked to stay about 25-30 meters away with the car and SI Vinay directed Ct. Pradeep to bring the car at the spot as and when signal was given to him.
56. PW-12 HC Sushil Kumar further deposed that at about 2:10 p.m, SI Vinay alongwith the secret informer took position near Red Wood School, Sant Nagar, Burari and other members of the raiding team including him and HC Rakesh took different positions around the school as per the briefing given within the radius of 25-30 meters. He further deposed that at about 02:15 PM, one African National person was noticed coming from the side of B-1 Block of Sant Nagar and the said person came and stopped/ standing in front of vacant plot near Red Wood School.
57. PW-12 HC Sushil Kumar further deposed that thereafter, the secret informer pointed out towards the said African National person as the same one about whom he furnished the information, who had come for the supply of Cocaine. He further deposed that after pointing out towards the accused, the secret informer was relieved by SI Vinay and he went away from there and the said person after waiting there for SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 24/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date:
2026.03.11 16:24:53 +0530 someone for about 4-5 minutes, started going back towards B-1 Block of Sant Nagar. He further deposed that after seeing the African person in movement, SI Vinay signalled both of them and he himself took the initiative to catch hold of the said person.
58. PW-12 HC Sushil Kumar further deposed that thereafter, they all surrounded the said African person and he was apprehended by them. IO SI Vinay made enquiries from him and on inquiry, that African person revealed his name as Vitalis Chinedu Opara R/o Nigeria, who was correctly identified in the Court by witness/PW12 HC Sunil Kumar.
59. PW-12 HC Sushil Kumar further deposed that SI Vinay introduced himself and other members of the raiding party to the accused and also told him about the secret information that he was having Cocaine in his possession in English Language. He further deposed that SI Vinay also told the accused that he was to be subjected to search in order to recover Cocaine, if any.
60. PW-12 HC Sushil Kumar further deposed that SI Vinay also apprised the accused about his legal rights that he could get his search conducted in the presence of a Magistrate or a Gazetted Officer, if he so desires. He further deposed that accused was also apprised about his legal rights that he could search the person of raiding party members including him and search the vehicle on which they had come on the spot before his search could be conducted. He further deposed that SI Vinay made the accused understand the meaning of Gazetted Officer and Magistrate, however, the accused refused to avail of his legal rights so explained to him.
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Pages No. 25/43
Digitally signed
VIRENDER by VIRENDER
SINGH
SINGH Date: 2026.03.11
16:24:59 +0530
61. PW-12 HC Sushil Kumar further deposed that thereafter, SI Vinay prepared the notice under Section 50 of NDPS Act as well as carbon copy in respect of his legal rights and served upon the accused in original, the original notice is Ex. PW8/E bearing his signatures at point C and the said notice was prepared in English language. He further deposed that accused wrote down his reply in English below, on the carbon copy of the said notice which is Ex. PW9/A which was retained by SI Vinay and the reply of the accused on the said notice is Ex. PW9/B which bears his signature at point C.
62. PW-12 HC Sushil Kumar further deposed that thereafter, SI Vinay conducted formal search of the accused and one transparent polythene from the right side pocket of his black colour jeans pant was recovered. He further deposed that the mouth of said polythene was tied with the rubber band which was found containing some powdered substance of white colour. He further deposed that SI Vinay took out a small quantity from the said substance and tested it on the field testing kit and the substance so recovered was revealed to be a contraband Cocaine. He further deposed that SI Vinay then weighed the substance with polythene and the rubber band and the total weight of the said substance came out to be 70 grams.
63. PW-12 HC Sushil Kumar further deposed that thereafter, SI Vinay drew two samples from the said 70 grams of 02 grams each in two separate polythenes and the same were converted into cloth parcels, both the samples so converted into different parcels were given Mark A & B. He further deposed that the remaining powdered substance weighing 66 grams was kept in the same polythene and it was converted into another cloth SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 26/43 Digitally signed VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:25:05 +0530 parcel to which Mark C was given. He also deposed that SI Vinay then filled-up an FSL Form and SI Vinay sealed all the said three parcels with the seal of 'VK', he then put up the impression of seal of 'VK' on the FSL form, the seal was handed over to him after use. He further deposed that SI Vinay seized all the said three parcels and FSL form through the seizure memo Ex. PW9/C which bears his signature at point C.
64. PW-12 HC Sushil Kumar further deposed that thereafter, SI Vinay prepared the rukka which is Ex. PW-11/B. Thereafter, SI Vinay handed over the said rukka to HC Rakesh alongwith the said three sealed parcels, FSL Form and carbon copy of the seizure memo so prepared by him with the directions to him that the rukka was to be given to the then Duty Officer at PS Crime Branch for registration of FIR and the remaining items were to be produced before the SHO concerned and accordingly, at about 05:00 PM, HC Rakesh took the aforesaid sealed parcels with the rukka to PS Crime Branch through the aforesaid Maruti Alto Car which was driven by Ct. Pradeep.
65. PW-12 HC Sushil Kumar further deposed that he along with SI Vinay and the accused remained at the spot and thereafter, at about 09:00 PM, ASI Sudhir reached at the spot in the same Maruti Alto Car driven by Ct. Pradeep as after registration of FIR, further investigation was assigned to him. He further deposed that Sl Vinay apprised ASI Sudhir, the IO, about the proceedings of recovery of Cocaine from the accused. He further deposed that SI Vinay handed over the documents to ASI Sudhir which he had prepared so far and he also handed over the accused to IO / ASI Sudhir.
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Digitally signed
by VIRENDER
Pages No. 27/43
VIRENDER SINGH
SINGH Date: 2026.03.11
16:25:12 +0530
66. PW-12 HC Sushil Kumar further deposed that thereafter, ASI Sudhir/ 2nd IO prepared the site map of the place of recovery, which is Ex. PW-10/D bearing his signatures at point C and ASI Sudhir recorded his statement. He further deposed that thereafter, ASI Sudhir made inquiries from the accused and arrested him in the present case vide arrest memo Ex. PW10/A which bears his signature at Point C. He also deposed that thereafter, ASI Sudhir conducted personal search of the accused and recovered original notice under section 50 NDPS Act which was served upon accused, cash of Rs. 528/- in a black colour purse alongwith three passport size photographs.
67. PW-12 HC Sushil Kumar further deposed that ASI Sudhir prepared the personal search memo which is Ex. PW10/B which bears his signature at point C. Second IO/ ASI Sudhir interrogated the accused and recorded his disclosure statement Mark PW10/C which bears his signature at Point C. He correctly identified the original notice U/s 50 of NDPS Act so recovered in the personal search of the accused and the same is Ex. PW8/E which bears his signature at point C.
68. PW-12 HC Sushil Kumar further deposed that thereafter, at about 11:10 PM, they left the spot finally and reached at PS Crime Branch at about 12:20 am. ASI Sudhir deposited the articles recovered from the personal search of the accused with the MHC(M) in the Malkhana. He further deposed that ASI Sudhir recorded the statement of SHO and MHC(M) and then, they came back to their office at Darya Ganj and reached there at about 02:00 AM.
69. PW-12 HC Sushil Kumar further deposed that ASI SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 28/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:25:18 +0530 Sudhir produced the accused before Inspector Upender Kumar, Central Range Crime Branch after reaching at Darya Ganj office and his statement regarding the proceedings was recorded by ASI Sudhir on the next day in the morning.
70. PW-12 HC Sushil Kumar further deposed that on 10.08.2017, he was posted at the said office and on the instructions of ASI Sudhir, he took out a pullanda, a cloth parcel Mark A to FSL Rohini and got it deposited there on 10.08.2017 and he took the same along with FSL form and copy of seizure memo and after depositing it in FSL Rohini. He obtained the acknowledgment regarding the deposition of the said pullanda and thereafter, when he came back to PS Crime Branch, he handed over the said acknowledgment to the then MHC(M). He further deposed that so long as the said pullanda remained in his possession, he did not tamper with it nor he allowed anybody to tamper with it.
71. PW-12/ HC Sushil Kumar correctly identified the accused Vitalis Chiendu Opara in the Court during his evidence. PW-12/ HC Sushil Kumar also correctly identified the case property during his evidence.
72. PW-12/ HC Sushil Kumar further deposed that the original notice U/s 50 of NDPS Act which was recovered in the personal search of accused Vitalis Chinedu Opara is on record, which is already Ex. PW5/A and bears his signatures at point B.
73. During the evidence of PW12/ HC Sushil Kumar, MHC(M) had produced the case property i.e. one sealed pullanda bearing case particulars and signatures of witnesses as well, on SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 29/43 VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:25:25 +0530 which it is written Mark C, sealed with court seal. It is opened and from it, one transparent polythene tied with rubber band was taken out and it was found containing some powdered substance and same was shown to the witness.
74. During his evidence, PW12/ HC Sushil Kumar deposed that this was the same substance which was recovered from the possession of the accused and this parcel was prepared of the remaining contraband by the IO at the spot in his presence after drawing samples. He identified his signatures at point C on the said parcel and the parcel Mark C is already Ex.P-2.
75. During further evidence of PW12/ HC Sushil Kumar, MHC(M) had produced an envelope in torn condition and out of which one cloth pullanda was taken out bearing case particulars and signatures of witnesses as well and bearing Mark A. During further evidence, Ld. APP for state submitted that Mark A was contained in one brown envelope which has got torn due to passage of time. However, on the portion of it, court seal was still visible as the same was produced earlier in the course of deposition of PW9 HC Rakesh and sealed with the court seal.
76. During further evidence, Court observed that it had seen the torn envelope, part of it bears court seal.
77. During further evidence of PW12/ HC Sushil Kumar, Mark A was opened and from it, one transparent polythene tied with rubber band was taken out and it was found containing some powdered substance and same was shown to the witness and he stated that this was the residue of the sample substance which was recovered from the possession of the SC No. 723/2017, FIR NO. 132/2017 Digitally signed State Vs. Vitalis Chinedu Opara Pages No. 30/43 by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:25:32 +0530 accused and this parcel was prepared by the IO at the spot in his presence. He identified his signatures at point C on the said parcel and the parcel Mark A is already Ex. P-3.
78. During further evidence of PW12/ HC Sushil Kumar, MHC(M) had produced one sealed pullanda bearing case particulars and signatures of witnesses as well, on which it is written Mark B, sealed with the seal of VK and KCS. It was opened and from it, one transparent polythene tied with rubber band was taken out and it was found containing some powdered substance and the same was shown to the witness to which he stated that this was the sample of the substance which was recovered from the possession of the accused and this parcel was prepared by the IO at the spot in his presence. He identified his signatures at point C on the said parcel and the parcel Mark B is already Ex.P-1.
79. PW-12/ HC Sushil Kumar was cross-examined by the Ld. counsel for the accused. In his cross-examination, PW-12 HC Sushil Kumar has stated that SI Vinay constituted raiding party including himself, HC Rakesh and Ct.Pradeep. He further stated that raiding party left the office of Crime Branch by a private vehicle. He further stated that they reached at the spot via Shantivan red light, ISBT Kashmere Gate and Majnu Ka Tilla. He further stated that SI Vinay got stopped vehicle at ISBT Kashmere Gate as well as after crossing Red Light of Majnu Ka Tila and asked public persons to join the investigation. He further stated that thereafter, they reached at the spot i.e. near Redwood School, Main Sant Nagar Road, Burari at about 2:00 p.m. He further stated that accused Vitalis was spotted while he was coming from Shri Ratnam Restaurant side, B-1 Block, Sant SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 31/43 Digitally signed VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:25:39 +0530 Nagar. He admitted the fact to the effect that the accused signed his reply on the notice u/s 50 NDPS Act. He further stated that contraband was recovered from right side pocket of the wearing jeans pant of the accused. He denied the suggestion that he was not present at the spot at the time of recovery. He further denied the suggestion that he was not a member of raiding party.
80. PW9/ HC Rakesh, No. 1262/Crime has also deposed similar facts as deposed by PW-11 and PW12. He was duly cross-examined by Ld. Counsel for accused.
81. After going through the evidence of PW11, PW12 and PW9 i.e. the all recovery witnesses. It is observed that all recovery witnesses have categorically deposed that the secret information was received regarding the accused who used to supply Cocaine in the area of Delhi and on the day of incident he would come in front of Redwood School, Burari to supply Cocaine to someone at about 2:15 PM and if raid is conducted then he can be apprehended red handed.
82. They have also deposed to the effect that thereafter the provisions of NDPS Act were complied and raiding party was constituted at the instructions of senior police officials and the accused was apprehended. They have also deposed that before taking personal search of accused, the IO had given notice U/s 50 NDPS Act to the accused to exercise his right to take personal search of the raiding team members as well as of their vehicle. He was also given option to be searched before Gazetted Officer or Magistrate which he refused by replying the notice U/s 50 NDPS Act. The prosecution has proved the notice during evidence.
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Pages No. 32/43
Digitally signed
VIRENDER by VIRENDER
SINGH
SINGH Date: 2026.03.11
16:25:47 +0530
83. Thereafter as per their evidence, 70 gram Cocaine was recovered from the right side pocket of wearing jeans pant of the accused which was checked by IO with Field Testing Kit and the same was found to be Cocaine and thereafter it was seized by the IO after taking two samples of 02 gram each and they have proved the seizure memo of the case property which is Ex. PW9/C.
84. ASI Sudhir Kumar, No. 475, SIU, Crime Branch, Darya Ganj, Kotwali, Delhi i.e. the 2nd IO has deposed as PW-10. He has deposed that on 08.08.2017, he was posted as ASI in SIU, Crime Branch, Darya Ganj, Kotwali, Delhi. On that day, further investigation of present FIR was assigned to him. In pursuance of directions, he left his place at about 8:20 p.m alongwith Ct. Pradeep in private vehicle and reached at the spot at about 9:00 p.m. At the spot, SI Vinay, HC Sushil and accused Vitalis Chinedu Opara were found present. He correctly identified the accused during his examination.
85. PW-10 further deposed that SI Vinay produced before him seizure memo of case property and one carbon copy of notice U/s 50 of the Act in the name of the accused. SI Vinay had also apprised him about the recovery of contraband i.e. Cocaine from the accused as well as proceedings conducted by him at the spot. Thereafter, he recorded statement of HC Sushil U/s 161 Cr.P.C. and made enquiry from accused and recorded his disclosure statement. Thereafter, he arrested the accused at about 10:20 p.m. vide arrest memo Ex. PW10/A which bears his signature at point A. He conducted personal search of the accused and recovered one notice in original U/s 50 of NDPS Act, Rs.
SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 33/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:25:53 +0530
528/-, Visiting Cards and some photographs. Personal Search Memo is Ex. PW10/B bearing his signature at point A. Disclosure statement of accused was proved a Mark PW10/C bearing his signature at point A. Thereafter, he along with aforesaid staff and accused left the spot at about 11:10 p.m and reached police station Crime Branch Pushp Vihar at about 12:20 am in the night.
86. PW-10 further deposed that he prepared site plan of the place of arrest and recovery, as pointed out by SI Vinay which is Ex. PW10/D bearing his signatures at point A.
87. PW-10 further deposed that on reaching the police station, he deposited the personal belongings of the accused in the Malkhana and recorded statements of MHC(M) and the SHO, P.S. Crime Branch. Thereafter, they went to i.e. SIU, Crime Branch Darya Ganj and made arrival entry vide DD No. 2, which is Ex. PW10/E. There, he produced the accused before Inspector Upender and he also prepared report U/s 57 of NDPS Act regarding arrest of the accused, which is Ex. PW6/E bearing his signatures at point C. He put up the said report before Inspector Upender, who forwarded the same to ACP. He also proved departure entry from the office to the spot as Ex. PW10/F. Thereafter, he met with an accident and investigation was assigned to some other IO. He proved notice U/s 50 of NDPS Act as Ex. PW8/E. He was duly cross-examined on behalf of accused.
88. Thereafter, the investigation was marked to ASI Joginder. The third IO ASI Joginder, No. 1461, Crime SIU, Darya Ganja, Kotwali, Delhi has deposed as PW-5. He has SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 34/43 Digitally signed VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:26:01 +0530 deposed to the effect that IO ASI Sudhir had met with an accident, therefore investigation was marked to him. He got bring the FSL result of the substance sent to it for analysis. Result was obtained and placed on record. He proved the FSL result dated 30.10.2017 as Ex. PW5/A. Thereafter, he prepared the charge-sheet and submitted before the court.
89. PW2/ Inspector Kailash Chander, the then SHO PS Crime Branch, Pushp Vihar has deposed to the effect that on 08.08.2017, HC Rakesh, Central Range, Crime came to his office at 06.30 pm alongwith three parcels marked as Mark-A, Mark-B, Mark-C sealed with the seals of 'VK', FSL form and carbon copy of seizure memo. The parcels and FSL form were duly sealed by him with the seal of 'KCS'. He also put his signatures on the parcel and FSL form. He enquired the FIR number from Duty Officer and wrote the same on aforesaid documents. Thereafter, he called MHC(M) ASI Jag Narain (PW8) and deposited the articles in Malkhana. The MHC(M) recorded DD entry in this regard in Register No. 19 and he himelf put his signatures in the relevant column of the said entry which is Mark PW2/A. And thereafter made DD entry no. 23. He proved the DD entry as Ex. PW2/A.
90. PW8/ ASI Jag Narain deposed that SHO Inspector Kailash Chander (PW2) called him in his office on 08.08.2017 alongwith register no. 19 and handed over him the pullandas Mark-A, Mark-B and Mark-C duly sealed with the seal of "VK" and "KCS" as well as FSL form having the same seal and carbon copy of seizure memo to deposit in the Malkhana. Accordingly he made entry in register no. 19 at serial no. 2694 and SHO (PW2) signed in column no. 3 of the register.
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Pages No. 35/43
Digitally signed
VIRENDER by VIRENDER
SINGH
SINGH Date: 2026.03.11
16:26:07 +0530
91. PW8/ ASI Jag Narain further deposed that on 10.08.2017, the sealed parcels Mark-A and FSL form were sent to FSL, Rohini through HC Sushil Kumar (PW12) vide road certificate no. 241/21. HC Sushil Kumar handed over him the acknowledgment after depositing the same in FSL and he made relevant entry in register no. 19.
92. The PW-13 Sh. Shailendra Yadav, Sr. Scientific Officer (Chemistry), FSL Rohini, Delhi has proved the examination report of FSL and as per the FSL result "on Chemical TLC, GC & GC-MS examination (i) Exhibit 'A' was found to contain 'Cocaine' 0.9%". He further deposed that after the examination, the remnants of the exhibits were sealed with the seal of "SY FSL DELHI". He proved his detailed report in this regard as Ex. PW5/A and same has been exhibited as Ex. PW13/A, which bears his signatures at point A on both the sides of the report.
93. Thus, as per the evidence led by prosecution, two samples of 02 gram each of Cocaine were taken from the recovered Cocaine and they were converted into two pullandas by 1st IO at the spot which were given Mark A and Mark B. The parcel A was sent to FSL for examination and the said parcel was containing Exhibit A which was checked by the FSL Expert and whereafter the aforesaid result was provided by the FSL.
94. As abovesaid, Ld. counsel for accused has contended that the Investigating Agency did not comply Section 52A of NDPS Act. He has also contended that the contraband allegedly recovered from the possession of accused was not kept SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 36/43 VIRENDER by VIRENDER SINGH SINGH Date: 2026.03.11 16:26:13 +0530 in safe custody.
95. To decide the above contention, Section 52A of NDPS Act is reproduced herein below for ready reference :-
"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 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 or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances 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 or psychotropic substances 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."
96. Thus, as per Section 52A(2) of NDPS Act where any 1[narcotic drugs, psychotropic substances, controlled substances or conveyance] has been seized and forwarded to the Officer-in-
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Digitally signed
by VIRENDER
Pages No. 37/43
VIRENDER SINGH
SINGH Date:
2026.03.11
16:26:20 +0530
charge of the nearest police station or to the officer empowered U/s 53, the officer referred to in sub-Section (1) shall prepare inventory of such narcotic drugs, psychotropic substances etc. and make an application to any Magistrate for the purpose of (1) certifying the correctness of the inventory so prepared; (b) taking, in 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. Therefore, as per Section 52A(2) of NDPS Act, the Officer In-charge of the police station was supposed to send recovered substance to the Magistrate with request to certifying the correctness of inventory, taking photographs and for drawing samples.
97. After going through the evidence of PW11 i.e. first IO SI Vinay Kumar and evidence of PW9 HC Rakesh and PW12 HC Sushil Kumar i.e. members of raiding team, the first IO after recovery of the alleged 70 gram Heroin took two samples of 2 gram each from recovered substance and put the same in two transparent polythene bags and gave Mark A and Mark B. The remaining was kept in the main recovered polythene bag and it was given Mark C. IO filled FSL Form. He sealed Mark A, Mark B and Mark C with the seal of 'VK'. Thereafter, the aforesaid pullandas alongwith rukka were sent to PS Crime branch to hand over the rukka to Duty Officer for registration of FIR and to hand over Pullandas alongwith FSL form to the SHO.
98. PW-8 the then MHC(M) ASI Jag Narain inter alia deposed that on 10.08.2017, he handed over the sealed parcels SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed Pages No. 38/43 by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:26:27 +0530 bearing Mark A alongwith FSL form to HC Sushil for depositing the same at FSL, Rohini. He recorded a note in Register No. 19 Ex PW8/A at point X bearing his signatures at point A. The said parcel was sent to FSL through Road Certificate No. 241/21, copy of which is Ex PW8/C which bears his signatures at point A. He further deposed that HC Sushil brought an acknowledgment from the FSL, which is Ex. PW8/D.
99. After going through the evidence of PW8 ASI Jag Narain, the then MHC(M), firstly, it is observed that he has not deposed at to on whose direction, he sent Mark A alongwith FSL form to FSL.
100. Further neither Second IO i.e. PW-10 ASI Sudhir Kumar nor third IO PW5 i.e. ASI Joginder have deposed that they had directed the MHC(M) to send Mark A to FSL Rohini. SHO concerned has also not deposed about any directions given to MHC(M) to send Mark A to FSL.
101. Further, it is also observed that the case property was never sent to the Ld. MM in compliance of Section 52A(2) of NDPS Act for certifying the correctness of the inventory, taking its photographs and certifying the same as well as for allowing to draw representative samples of recovered drugs from the possession of accused. As per record the sample 'A' taken by 1 st IO at the spot was sent to FSL for expert opinion.
102. In Simarnjit Singh Vs. State of Punjab, 2023 LiveLaw (SC) 570, the Hon'ble Supreme Court of India has held in para no. 9 that "Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed by VIRENDER Pages No. 39/43 VIRENDER SINGH SINGH Date:
2026.03.11 16:26:34 +0530 with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".
103. Further, in Md. Khalid & Anr. Vs. The State of Telangana, Crl. Appeal No. 1611/2023, decided on 01.03.2024, the Hon'ble Supreme Court of India has observed in para no. 22 as under :-
"22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A - 3 and A - 4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale/purchase of ganja with A - 1 and A - 2 . The entire case of the prosecution as against these two accused is based on the interrogation notes of A - 1 and A - 2".
104. Therefore, as per the facts of the case and the evidence led by the prosecution the case property was never sent to Ld. MM in compliance of Section 52A(2) of NDPS Act.
105. Thus, there is major lacunae in the case of prosecution. The expert opinion has been provided on sample taken by the IO at the spot in contravention of legal proceedings. Therefore, examination report i.e. opinion of expert i.e. Ex. PW14/A is merely a piece of paper as per the mandate of Md.
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Digitally signed
Pages No. 40/43
VIRENDER by VIRENDER
SINGH
SINGH Date: 2026.03.11
16:26:41 +0530
Khalid & Anr. Vs. The State of Telangana (supra) given by the Hon'ble Supreme Court of India and it is of no use of prosecution.
106. At the same time, it is also observed that though, PWs have taken the plea that the public persons were asked to join the investigation but they left the place after giving plausible reasons and without giving their addresses. The Hon'ble Apex Court and Hon'ble Delhi High Court have rejected this casual approach of police officials particularly in absence of giving any notice to public persons and noting down their addresses. The same has happened in present case. Therefore, the chances of planting the case property upon accused cannot be ruled out.
107. Further, it is the case of accused that he was called in the office of Crime Branch by FRRO personnel and he was falsely implicated in this case under mistaken identity. During cross-examination, PW11 Insp. Vinay Kumar has admitted that at the place from where the accused was apprehended so many foreign national persons from Foreign continent were residing. He also admitted that the police officials did not find any document from the possession of the accused with regard to his name as Vitalis. The absence of recovery of any identity proof and availability of another name in the identity records of accused further strengthen his defence.
108. Thus, since admittedly there were public persons but then also, they were not joined while doing alleged recovery from the accused and the police officials did not find any identity proof in the possession of the accused. Further, there is not any videography or photography of the alleged recovery, therefore, SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Digitally signed by VIRENDER Pages No. 41/43 VIRENDER SINGH SINGH Date:
2026.03.11 16:26:48 +0530 prosecution has failed to prove beyond reasonable doubt that the Heroin was recovered from the possession of the applicant/ accused.
109. (2) ILLEGAL STAY IN INDIA i.e. THE ACCUSED WAS FOUND IN INDIA WITHOUT ANY VALID PASSPORT AND VISA.
110. The other allegations against the accused are that he was found in India without any Passport, Visa or Permit of valid stay in the Territory of India and thereby, he has committed the offence punishable U/s 14 of Foreigners Act.
111. As abovesaid, prosecution has produced 13 witnesses to prove its case against the accused. However, on perusal of entire evidence led by the prosecution, it is observed that none of the witnesses including First IO, Second IO, Third IO, Raiding Team Members, SHO as well as ACP concerned have deposed to the effect that any investigation was done to find out as to whether the accused was having any valid passport or Visa. Rather, they have not deposed even an iota of word in their examination-in-chief to the effect that the accused was found staying in India without valid Passport and Visa at the time of his arrest.
112. It is the case of the accused that he was having Passport, Visa or Permit for valid stay in India but it was lost. It is settled position of law that the case of prosecution has to stand on its own legs and it cannot take benefit from the lacuna, if any, on the part of accused.
SC No. 723/2017, FIR NO. 132/2017 State Vs. Vitalis Chinedu Opara Pages No. 42/43 Digitally signed by VIRENDER VIRENDER SINGH SINGH Date: 2026.03.11 16:26:54 +0530
113. Thus, as abovesaid, none of the witnesses have deposed that the accused was not having any valid Passport or Visa at the time of his arrest to stay in India, therefore, in the considered opinion of this Court, the prosecution has failed to discharge its onus to prove that the accused was not having Passport or valid Visa for stay in India at the relevant time. Hence, in the absence of any evidence qua illegal stay in India by the accused, the prosecution has also failed to prove the offence U/s 14 of Foreigners Act against the accused and benefit of doubt is given to the accused for that offence.
CONCLUSION
114. In view of aforesaid appreciation of evidence, considerations, facts and circumstances, the prosecution has failed to discharge its onus of proving the foundational facts for the offence U/s 21(b) of NDPS Act, 1985 as well as for the offence punishable U/s 14 of Foreigners Act against the accused. Therefore, accused Vitalis Chinedu Opara @ Eke James Opara is acquitted for the charges of the offence punishable U/s 21(b) of NDPS Act as well as for the offence punishable U/s 14 of Foreigners Act, 1946.
115. Ordered accordingly.
Announced in Open Court Digitally signed
by VIRENDER
VIRENDER SINGH
on 11.03.2026. SINGH Date:
2026.03.11
16:27:03 +0530
(Virender Singh)
Special Judge, NDPS,
Central,THC, Delhi
SC No. 723/2017, FIR NO. 132/2017
State Vs. Vitalis Chinedu Opara Pages No. 43/43
Digitally signed by
VIRENDER VIRENDER
SINGH
SINGH Date: 2026.03.11
16:27:07 +0530