Delhi District Court
State vs Reena on 25 April, 2025
DLSH010011882018 Page 1 of 57
SC No.81/2018
State Vs. Reena
FIR No.5/18
U/s.21 NDPS Act
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC No.81/2018
State Vs. Reena
FIR No.5/18
U/s.21 NDPS Act
In the matter of :-
State
(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Reena
w/o. Sh. Subhash @ Nandu
R/o. 168, Jwala Nagar, Gali No.4, Delhi
....accused
(Sh. Mukesh Kumar, Advocate)
Date of institution : 21.02.2018
Date when judgment reserved : 22.04.2025
Date of Judgment : 25.04.2025
Final decision : Acquitted
::JUDGMENT::
1. Accused Reena is before the Court facing charge under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that 13.580 grams heroin (in 130 pink colour polythene pouches) was recovered from her possession on 06.01.2018 at about 11.25 a.m., Outside H.No.44/213, Masjid Wali Gali, Mukesh Nagar, Shahdara, Delhi.
2. In view of alleged recovery of 13.580 grams heroin from the possession of aforesaid accused, FIR No.5/18 was lodged at PS Vivek Vihar on 06.01.2018. After completion of investigation, charge-sheet was filed on 21.02.2018. Charge was framed on 17.05.2019 for offence u/s.21 NDPS Act, which reads as under :DLSH010011882018 Page 2 of 57 SC No.81/2018
State Vs. Reena FIR No.5/18 U/s.21 NDPS Act "That on 06.01.2018 at about 11.25 am outside H. No. 44/213, Masjid wali gali, Mukesh Nagar, Shahdara, Delhi within the jurisdiction of PS Vivek Vihar, you were found in possession of pink colour polythene having 130 pouches containing heroine weighing about 13.580 gms, in contravention of provisions of NDPS Act and thereby you committed an offence punishable under Section 21/61/85 NDPS Act, 1985 and, within the cognizance of Court of Sessions."
3. In order to prove the aforesaid charge, the prosecution examined 12 witnesses. The details of the said witnesses along with the documents that they exhibited during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description
exhibited
PW1 HC Sujeet Ex. PW1/A Copy of notice u/s.50 NDPS Act
(Recovery witness) Ex. PW1/B Seizure memo of contraband
Ex. PW1/C Original notice u/s.50 NDPS Act
Ex. P-1 Polythene bag alongwith heroin
Ex. P-2 130 empty small pouches / pudias
Ex. P-3 Sample of contraband
Ex. P-4 Sample of contraband
PW2 ASI Mandresh Ex. PW2/A Copy of FIR
(Duty Officer)
Ex. PW2/B Endorsement on rukka
Ex. PW2/C Certificate u/s.65B of Indian Evidence Act
PW3 Ct. Puneet Ex. PW3/1 DD No.11A dated 06.01.2018
(Recovery witness)
Ex. PW3/2 Arrest memo of accused
PW4 Ct. Ravi
(Recovery witness)
PW5 ASI Ratan Lal Ex. PW5/A Entry no.14 in register no.19
(MHCM) Ex. PW5/B Acknowledgment of FSL
Ex. PW5/c RC No.14/21/18
PW6 HC Swayam Prakash Ex. PW6/A Original report u/s.57 NDPS Act
(Reader to ACP)
Ex. PW6/B Original report u/s.57 NDPS Act
Ex. PW6/C Entries No.91 & 92 in diary register
PW7 SI Yogesh Ex. PW7/A DD No.10A dated 06.01.2018
(1st IO)
Ex. PW7/B Rukka
PW8 Ct.Sugam Singh Meena
(Recovery witness)
PW9 Insp. Vijay Kumar
(Acting SHO and also
DLSH010011882018 Page 3 of 57
SC No.81/2018
State Vs. Reena
FIR No.5/18
U/s.21 NDPS Act
Sl. No. Name of witness Documents Description
exhibited
witness to recovery)
PW10 SI Pooja (2nd IO) Ex. PW10/A Site plan
(witness to arrest) Ex. PW10/B Personal search memo
Ex. PW10/C Disclosure statement
PW11 W/Ct. Jyoti
(Recovery witness)
PW12 ACP Mohd. Iqbal
(witness of compliance
u/s.42 & 57 NDPS Act)
Admitted documents Ex. AD1 FSL report dated 29.05.2018 prepared by Sh.
(u/s.330 BNSS 2023) Subhash Chandra, Sr. Scientific Officer, FSL
Rohini
4. After examining the testimony of the witnesses mentioned in the table above, it is found that they gave evidence about the following facts for the prosecution: - 4.1. On 06.01.2018 one secret informer came to PS Vivek Vihar and met PW7 SI Yogesh Kumar and informed him that accused Reena, resident of H.No.44/213, Masjid wali gali, Mukesh Nagar, Shahdara, used to sell smack outside of her house and if raid is conducted, she can be apprehended.
4.2. PW7 produced the secret informer before PW9 Inspector Vijay Kumar and the secret informer gave the same information to PW9 Inspector Vijay Kumar who informed about the secret information to PW12 Mohd. Iqbal, ACP Vivek Vihar.
ACP Vivek Vihar directed PW9 to conduct immediate raid, which directions were passed on by PW9 Inspector Vijay Kumar to PW7. PW7 lodged DD No.10A Ex.PW7/A w.r.t. secret information and constituted the raiding team, including PW1 HC Sujit, PW4 Ct. Ravi, PW8 Sugan Singh Meena, PW3 Ct. Punit and PW11 W/Ct Jyoti.
4.3. PW7 along with other members of raiding team and secret informer left PS in govt gypsy along with field testing kit, IO kit and electronic weighing machine vide DD no.11A Ex.PW3/1.
4.4. The raiding team along with secret informer reached rickshaw garage Jwala DLSH010011882018 Page 4 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act Nagar where the govt gypsy was parked and 4-5 public persons were asked to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses.
4.5. PW7 along with police officials and secret informer reached at 44/213, Masjid wali gali Mukesh Nagar on foot where the secret informer pointed towards the accused and upon seeing the police officials the accused attempted to enter into her house, however she was stopped by PW11 and upon enquiry she disclosed her name as Reena w/o Subhash @ Nandu.
4.6. PW7 informed the accused about her legal right that before her search is conducted, she can conduct the search of members of raiding team or she can also be searched in presence of Gazetted Officer or Magistrate or can be taken to Gazetted Officer or Magistrate for her search. Notice under section 50 of the NDPS Act Ex.PW1/C was prepared by PW7 bearing signatures of PW11 and PW1. The same was given to accused Reena and her refusal was recorded on the carbon copy of ExPW1/A, which also bears signature of accused as well as signatures of PW1 and PW11.
4.7. After recording the refusal of the accused, the IO again asked 4-5 public persons to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses. In the meanwhile, PW9 Inspector Vijay Kumar (acting SHO) also reached the spot. Thereafter, search of the accused was conducted by PW11 behind the door of the house and one pink colour polythene containing 130 small pudias was recovered from her possession. The puddias were found containing brown colour powder which upon being tested with field testing kit was found to be positive for Heroin. 4.8. The contents of 130 pudais were placed in a transparent polythene pouch and it was weighed and found to be 13.580 grams. Out of the said polythene pouch two samples of 2 grams each were taken into different plastic polythenes and DLSH010011882018 Page 5 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act they were marked as S1 and S2. The two polythene containing samples were thereafter kept in separate white pullandas and sealed with the seal of YK. The remaining contraband along with 130 empty pouches was kept in another cloth parcel and sealed with the seal of YK and marked as Mark A. All the three pullandas were thereafter seized vide seizure-memo Ex.PW1/B which bears signature of accused as well as signatures of PW1, PW3 and PW11 as witness. 4.9. PW7 filled the FSL form and handed it over to PW8, PW9 (acting SHO) also sealed the three pullandas with counter seal of VK and also placed his seal on FSL form. PW7 handed over the carbon copy of seizure-memo, FSL form and three sealed pullandas to PW9, who took them to PS and deposited it with PW5 ASI Ratan Lal (MHCM). PW5 deposited the said parcels in the malkhana vide entry no.14 in register no.19 ExPW5/A. 4.10. PW7 prepared rukka and handed over to PW3 for registration of FIR, who went to PS and handed over the rukka to PW2 ASI Mandresh, who was working as Duty Officer. PW2 based on rukka recorded FIR no.5/2018 and printed copy of the same Ex.PW2/A and handed it over to PW3. PW2 also made endorsement on rukka vide DD No.13A Ex.PW2/B. He also issued certificate u/s 65B of Indian Evidence Act regarding the computerized copy of FIR. 4.11. The investigation was marked to W/SI Pooja (PW10) and after registration of FIR she along with PW3 went to the spot where accused along with other members of raiding team were present. There PW7 handed over the documents to PW10, who entered the FIR numbers on the documents. PW10 prepared site plan ExPW10/A. PW9 Inspector Vijay Kumar also mentioned the FIR number on the seizure-memo Ex.PW1/B. Thereafter PW7 and PW9 left the spot. 4.12. PW10 arrested accused Reena vide memo Ex.PW3/2, which bears signature of accused and conducted her personal search vide memo Ex.PW10/B in which original notice under section 50 of the NDPS Act Ex.PW1/C was recovered.
DLSH010011882018 Page 6 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act Both the memos bear signatures of accused as well as signatures of PW11. 4.13. The disclosure statement of accused was recorded Ex.PW10/C, bearing her signatures and signatures of PW11.
4.14. Report under section 57 of the NDPS Act was prepared by PW7 w.r.t. recovery Ex.PW6/A and was prepared by PW10 w.r.t. to arrest Ex.PW6/B which were placed before PW9 Inspector Vijay Kumar who countersigned both the reports and forwarded them to ACP. The said reports were received in ACP office on 06.01.2018 and as per testimony of PW6 HC Swayam Prakash entries were made with respect to receiving the said reports in diary vide entry no.91 and
92. The copy of office diary is ExPW6/C and the original reports are Ex.PW6/A and Ex.PW6/B. 4.15. The recovered original notice under section 50 of the NDPS Act was got deposited by PW10 with PW5 MHCM and entry in this regard was made at sl no.15 Ex.PW5/B. 4.16. On 10.01.2008 on the directions of PW10, PW8 took two sealed parcels of samples from PW5 MHCM vide RC no.14/21/18 (Ex.PW5/C) and took the same to FSL and deposited the same vide acknowledgment Ex.PW5/B. He handed over the same to PW5 who took it on record.
4.17. The said samples S1 and S2 were examined by Dr. Subhash Chandra from 16.05.2018 to 29.05.2018. Both the samples were found bearing seal of YK and VK and upon opening were found having 2 gram brown colour powdery substance each. Upon chemical examination, the samples were found to contain diacetylmorphine, 6 - monoacetylmorphine and acetylcodeine. Sample S1 was found containing 20.9 % diacetylmorphine and sampled S2 was found containing 21.9 % diacetylmorphine. The FSL result dt. 29.05.2018 was admitted by accused on 29.10.2024 and is Ex.AD-1. The remaining substance in the two samples were separately sealed with the seal of SC FSL DELHI.
DLSH010011882018 Page 7 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act 4.18. The pullanda mark A was produced before the court on 25.09.2023 during testimony of PW1 and was found having two seals of VK and upon opening it was found containing one pink colour polythene containing a pudia and 130 small empty transparent pouches. The same are Ex.P-1 and P2. 4.19. The parcel mark S1 and S2, sealed in FSL were produced before the court on 25.09.2023 and were found sealed with the seal of FSL i.e. SC FSL DELHI. Upon opening cloth pullandas each was found bearing the seal of VK and same are Ex.P-3 and Ex.P-4 respectively.
5. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded, wherein she pleaded innocence and claimed that she has been falsely implicated in the present case. She stated that she had previous involvements in cases under Excise Act and for that reason she was lifted from her house and contraband was planted upon her. She further stated that her signatures were obtained by the police on blank papers.
6. Accused opted not to lead any evidence in defence.
Arguments
7. I have heard the Ld. Additional Public Prosecutor Sh. Jitendra Sharma for State and the Ld. Counsel Sh. Mukesh Kumar for the accused and perused the record.
8. Arguments were heard on 22.04.2025.
9. Ld. Counsels for the accused made following submissions :
9.1. There is no compliance of Section 52A of NDPS Act, as the samples were drawn at the spot itself by the first IO / PW7 SI Yogesh.
9.2. The investigating agency completely failed to comply with Section 42 NDPS as PW7 / IO was not specifically authorised by PW12 to act on the secret information u/s.41(2) NDPS Act.
9.3. Further, before taking samples, the case property was not mixed by PW7 or any other member of the raiding team, hence, the samples taken out cannot be said DLSH010011882018 Page 8 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act to be homogeneous mixture of the recovered substance.
9.4. The secret information recorded in DD No.10A was never produced before PW9 / SHO or PW12 / ACP, as per the requirement of Section 42(2) NDPS Act.
9.5. That though secret information was received by PW7, however, he did not take it down in writing in his own handwriting.
9.6. In the notice u/s.50 NDPS Act Ex. PW1/B, it is not mentioned that the accused was informed that it is his right to be taken to 'nearest' magistrate or gazetted officer for his search, if so required by him. Therefore, the notice is defective. 9.7. Despite the presence of public witnesses at the spot, no public witness could be joined in the investigation and no notice was served upon any of the public witnesses, who allegedly refused to join investigation.
9.8. The case property, when it was produced before the Court, was bearing two seals of VK. The seal of YK, as stated to have been placed on the case property by PW7 / IO was found missing.
10. Per contra, Ld. Addl. Public Prosecutor made following submissions :
10.1. As the recovery was made in a public place in the present case, hence compliance of Section 42 NDPS Act was not required.
10.2. That there is nothing on record to show that the samples were not duly drawn and as far as making of homogeneous mixture is concerned, the same is relevant in cases where the percentage purety of the contraband needs to be determined. Moreover, in the present case, two samples of 2 gms each were drawn out of total 13.580 gms of recovered substance i.e. almost 1/3rd of the total recovery. 10.3. That as far as the word 'nearest' magistrate or gazetted officer in notice under section 50 of the NDPS Act is concerned, merely because of the same the notice cannot be said to be defective in view of the judgment of Hon'ble Apex Court in case titled State Vs Mohd. Zabir, 2023 SCC Online Delhi 1827.
DLSH010011882018 Page 9 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act 10.4. That investigating agency made sufficient efforts to join the public witness and it is because of the reluctance of the public witnesses to join the proceedings that no public witness could be joined in investigation.
10.5. That when the case property was produced before the Court, it may be that the seal of VK could not be distinguish from the seal of YK, as a result of which, only seal of VK was mentioned at that time, during the deposition of PW1. Legal Requirement to prove the Charges
11. Section 21 NDPS Act reads as under:
"21. 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 uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(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;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.." (emphasis supplied)
12. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under:
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner DLSH010011882018 Page 10 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes." (emphasis supplied)
13. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
14. The term "narcotic drugs" is defined in Section 2(xiv) as under :
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
15. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
16. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;" (emphasis supplied)
17. "Opium Derivatives" besides other things also means heroin. It is defined in s.2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;DLSH010011882018 Page 11 of 57 SC No.81/2018
State Vs. Reena FIR No.5/18 U/s.21 NDPS Act
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine" (emphasis supplied)
18. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;"
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
19. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
20. In order to prove the charges u/s.21(b)NDPS Act, the prosecution is required to prove the following facts:
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order mode or condition of license granted thereunder. (3) That the contraband was heroin.
(4) That the quantity of the contraband was intermediate i.e. more than 5 grams for Section 21(b).DLSH010011882018 Page 12 of 57 SC No.81/2018
State Vs. Reena FIR No.5/18 U/s.21 NDPS Act
21. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously.1 The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
22. In State of Punjab vs. Balbir Singh 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various
1. 1 In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) :
MANU/MH/1838/2002:
2. "In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."DLSH010011882018 Page 13 of 57 SC No.81/2018
State Vs. Reena FIR No.5/18 U/s.21 NDPS Act offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the DLSH010011882018 Page 14 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
23. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
24. The court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:
Compliance of Section 42 NDPS Act DLSH010011882018 Page 15 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act
25. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." (emphasis supplied)
26. Section 42 of the NDPS Act provides that the concerned police officer, who received DLSH010011882018 Page 16 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act the secret information is required to take down the said information in writing and urgently inform his immediate official superior about the secret information and send the information so reduced into writing within 72 hours of its receipt.
27. With respect to the compliance of Section 42 NDPS Act, PW7 SI Yogesh Kumar categorically testified that on 06.01.2018, he was posted at PS Vivek Vihar and at 10.10 am, secret informer came to the police station and told him that one lady namely Reena resident of H.No.44/213, Masjid Wali Gali Mukesh Nagar Shahdara sells smack outside her house and can be apprehended, if raid is conducted. PW7 after satisfying himself produced the secret informer before PW9 Inspector Vijay Kumar SHO PS Vivek Vihar who also made enquiries from the secret informer and conveyed the secret information to PW12 / ACP Vivek Vihar, who directed to conduct a raid immediately. Thereafter PW7 lodged DD No.10A regarding the secret information which is Ex.PW7/A and produced the same before PW9 / SHO.
28. The testimony of PW7 is corroborated by the deposition of PW9 Inspector Vijay Kumar, who was working as acting SHO at PS Vivek Vihar on 06.01.2018. He also categorically testified that PW7 had produced secret informer before him and after satisfying himself he went to the office of PW12 ACP Mohd Iqbal and informed him about the secret information, who directed to conduct raid immediately. He stated that he accordingly directed PW7 to constitute the raiding team. The witness also stated that DD NO.10A regarding the secret information was produced before him and he had forwarded the same to the office of ACP Vivek Vihar.
29. PW12 ACP Mohd Iqbal, ACP Vivek Vihar also testified that PW9 had come to his office at about 10.30 am on 06.01.2018 and conveyed the secret information upon which he directed PW9 to constitute raiding team and take immediate action.
30. Thus, from the depositions of PW7, PW9 and PW12, it is clear that the secret information was received by PW7 and that he produced the secret informer before PW9/ SHO who himself went to PW12 /ACP to convey the secret information. PW12 DLSH010011882018 Page 17 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act upon receiving the secret information, directed PW9 to constitute raiding team and take action, but he did not direct specifically that it is PW-7 who should take action on the basis of the secret information.
31. Considering the aforementioned deposition there are some questions that have arisen before the Court, which are as under :-
31.1. Whether the secret information so received was required to be taken down in writing by PW7 in his own handwriting?
a. It was one of the arguments of the Ld. Counsel for the accused that PW7 SI Yogesh Kumar, who received the secret information from secret informer did not record or take down the said secret information in writing in his own handwriting, as per the requirement of Sections 41 as well as 42 of the NDPS Act.
b. It is found that Section 41(2) of NDPS Act uses the words "information given by any person and taken in writing" and Section 42 also uses similar phrase i.e. "information given by any person and taken down in writing". c. In view of the said phrase used in the two sections, the legal issue that has been raised before the Court is: Whether the information is to be taken down in writing by the concerned official in his own handwriting? From the bare perusal of the sections and the aforesaid phrases, it is clear that it is not mentioned either in Section 41 or in Section 42 of NDPS Act that the information so received by the empowered official is to be recorded by the empowered official in his own handwriting. If the intention of the legislature was that the receiver of the information should take down the information in his own handwriting then it could have very well stated so, while framing the provisions of NDPS Act. However, from the reading of the sections, it seems that the intention of the legislature was to ensure that any action u/s.41(2) or u/s.42(1) of the NDPS Act is taken by the empowered officer, only after the DLSH010011882018 Page 18 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act information, so received, is recorded on the paper. What the legislature intends is that the powers under the said sub-section should not be used merely on the basis of oral statements. If the intention of the legislature had been that the said information should be recorded by the empowered/authorised officer in his own handwriting, then the aforesaid phrases could have been easily worded as "information given by any person and taken in writing by such officer" and Section 42 also uses similar phrase i.e. "information given by any person and taken down in writing by such officer". However, if the legislature has not used the said phrase and has not specifically stated that it is such officer himself, who should take down the information in his own handwriting, then it would not be appropriate for this Court to read the said sections in such manner.
31.2. Whether the secret information taken down in writing vide DD No.10A Ex.PW7/A was produced before immediate official superior by PW7 within 72 hours as per mandate of section 42(2) of NDPS Act?
a. As per record, DD No. 10A Ex. PW7/A only bears the signature of PW7. Though PW7 in his evidence stated that after lodging DD No. 10A (Ex. PW7/A), he had produced the copy of DD before the SHO, there is no such document on record which shows that the copy of the said DD entry was placed before the SHO and was signed by him.
b. PW9 Insp. Vijay Kumar in his evidence also stated that copy of DD No. 10A was produced before him by PW7 and that he forwarded the same to the Office of ACP, but the said document which was forwarded by witness to the office could not be produced before the court during the deposition of PW12/ACP Mohd. Iqbal.
c. It may be noted that while, PW9 stated that he had forwarded the copy of DD No. 10A to the office of ACP Vivek VIhar, ACP Vivek Vihar/PW12 never DLSH010011882018 Page 19 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act stated that the copy of said DD entry was ever received by his office, seen by the witness or signed by him at any stage.
d. Accordingly, the prosecution has failed to prove that the DD entry No. 10A Ex. PW7/A which was recorded as regards the secret information was ever produced by PW7 before SHO/PW9 or was sent to the office of and seen by the ACP Vivek Vihar/PW12.
31.3. Whether the directions given by PW12 to PW9 Inspector Vijay Kumar to constitute the raiding team and thereafter directions given by PW9 to PW7 to take action on the secret information, amounts to authorization to PW7 to conduct raid under section 41(2) of NDPS Act?
a. It may be noted that PW12 Mohd. Iqbal, ACP Vivek Vihar, being ACP is a gazetted officer in Delhi Police. As per Section 41(2) NDPS Act r/w. Notification dated 14.11.1985, the said officer is empowered u/s.41(2) of NDPS Act to authorise any officer subordinate to him, but superior in rank to Peon, Sepoy or a Constable to take action u/s.42 NDPS Act. The said notification is reproduced as under :
FINANCE (GENERAL) DEPARTMENT NOTIFICATIONS Delhi, the 14th November, 1985 No. F.10(76)/85-Fin. (G)i In exercise of the powers conferred by sub-section (2) of section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) read with the Government of India, Ministry of Home Affairs, New Delhi Notification No. S.O. 818(E) dated 8-11-1985 the Administrator of the Union Territory of Delhi is pleased to empower all Gazetted Officers of the following Departments of Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable, under Chapter IV of the said Act or that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place within the Metropolitan Area of Delhi, to authorise any officer subordinate to him but superior in rank to a Peon, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building conveyance or places :
1. Revenue Department.
2. Drugs Control Department
3. Excise Department, and DLSH010011882018 Page 20 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act
4. Police Department.
b. From the testimony of PW7, as well as the testimony of PW12 as mentioned above, it is clear that both the said witnesses did not talk to each other before the raiding team was constituted. PW7 did not mention in his examination-in-chief that PW9 had informed him that PW12 had directed PW9 to communicate to him that he has been so authorised to conduct proceedings u/s.42(1) NDPS Act by PW12 u/s.41(2) NDPS Act. In his examination-in-chief, PW7 categorically stated that PW9 had directed him to constitute a raiding party to take action on the secret information. Further, even PW12 in his deposition did not say that he had specifically directed PW9 to communicate to PW7, that PW7 has been authorised by 0PW12 to conduct further proceedings u/s.42(1) of NDPS Act on the secret information. It may also be noted here that in the statement u/s.161 Cr.P.C. of PW9, it is not mentioned that he was directed by PW12 to specifically direct PW7 by name to conduct further proceedings.
c. From the deposition of the aforesaid witnesses it is clear, that the fact that PW9 had conveyed the secret information to PW12 and that PW12 had specifically authorised PW7 to conduct further proceedings u/s.42(1) NDPS Act is missing in their statements. Thus, there is substance in the argument of Ld. Counsel for accused, that PW12 Mohd. Iqbal ACP Vivek Vihar had not duly authorised PW7 SI Yogesh Kumar u/s.41(2) NDPS Act to conduct proceedings i.e. search, seizure and arrest u/s.42(1) NDPS Act. d. In this regard, the Court would like to refer to para-26 of judgment titled Darshan Singh Vs. State of Punjab, 2024 INSC 19. In the said case, the Hon'ble Full Bench of the Apex Court observed that prosecution cannot seek to prove a fact during trial through a witness, which such witness had not stated to police during investigation. Para 26 of the said judgment is DLSH010011882018 Page 21 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act reproduced as under :
"If the PWs had failed to mention in their statements u/s 161 CrPC about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon. Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance. [See : (i) Rohtash Vs. State of Haryana, (2012) 6 SCC 589 (ii) Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra, 2011 (72) ACC 699 (SC). (iii) Rudrappa Ramappa Jainpur Vs. State of Karnataka, (2004) 7 SCC 422 (iv) Vimal Suresh Kamble Vs. Chaluverapinake, (2003) 3 SCC 175]"
e. In light of the aforesaid discussion, the Court comes to the conclusion that PW12 ACP Mohd. Iqbal (gazetted officer) did not specifically authorise PW7 SI Yogesh Kumar u/s.41(2) NDPS Act and the power to authorise could not have been delegated by PW12 to PW9 Insp. Vijay Kumar (Acting SHO, PS Vivek Vihar) to further authorise any official u/s 41 (2) of NDPS Act to take action on the secret information u/s.42(1) of NDPS Act. 31.4. Whether in absence of authorization by ACP, the raid conducted by PW7 would stand vitiated or whether he was otherwise authorized to conduct raid even in absence of such authorization?
a. The answer to that question would have been simple in absence of another notification dated 14.11.1985, which is reproduced as under :
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of 1985) read with the Government of India, Ministry of Home Affairs Notification No.S.O. 818(E) dated the 8 th November, 1985 the Administrator of the Union territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi, between sunrise and sunset, to :
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to DLSH010011882018 Page 22 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; and
(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act relating to such drug or substance;
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
b. As per the aforesaid notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW7 SI Yogesh Kumar, being Sub-Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act.
c. As per the aforesaid notification and bare reading of Section 42(1), it is clear that PW7 SI Yogesh Kumar, being Sub-Inspector in Delhi Police was not required to obtain any authorisation from PW12 ACP Mohd. Iqbal before proceeding to take action u/s.42(1) of NDPS Act on the secret information. Therefore, the argument that PW7 SI Yogesh Kumar was not competent to conduct search, seizure and arrest as PW12 ACP Mohd. Iqbal had not specifically authorised PW7 SI Yogesh Kumar to conduct search, seizure and arrest is found to be devoid of merits.
Application of Section 43 NDPS Act
32. It may however be noted that the recovery in the present case was made from the accused while she was in a public place i.e. in Gali outside H. No. 44/213, Masjid DLSH010011882018 Page 23 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act Vali Gali, Mukesh Nagar Shahdara, Delhi. For a recovery made from a suspect in a public road (gali/alley), instead of section 42, section 43 comes into play, which is reproduced as under:
43. Power of seizure and arrest in public place.--
Any officer of any of the departments mentioned in section 42 may --
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation:-- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
33. In State of Punjab Vs Baldev Singh AIR 1999 SC 2378, Hon'ble Constitution Bench of the Apex Court observed as under:
"The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful."
(emphasis supplied)
34. In Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence (2002) 8 SCC 7 Full Bench of Hon'ble Apex Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the Appellant at the airport and subsequently arresting him. Answering the above question in the negative, the DLSH010011882018 Page 24 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act Court held:
"In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant."
35. In Krishna Kanwar (Smt.) Alias Thakuraeen v. State of Rajastha (2004) 2 SCC 6081 a Division Bench of Hon'ble Apex Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the Appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:
"Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deal with "building, conveyance or enclosed place" whereas Section 43 deals with power of seizure and arrest in public place. Under sub-section (1) of Section 42 the method to be adopted and the procedure to be followed have been laid down. If the concerned officer has reason to believe from personal knowledge, or information given by any person and has taken down in writing, that any narcotic drugs or substance in respect of which an offence punishable under Chapter IV of the Act has been committed or any other articles which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset, do the acts enumerated in clauses (a), (b), (c) and (d) of sub-section (1).The proviso came into operation if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escaped offender, he may enter and search such building, conveyance or enclosed place any time between sunrise and sunset after recording grounds of his belief. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his DLSH010011882018 Page 25 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place."
(emphasis supplied)
36. In Directorate of Revenue and Ors. vs. Mohammed Nisar Holia 2007 INSC 1226 Hon'ble Apex Court observed:
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under Sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case DLSH010011882018 Page 26 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not places."
(emphasis supplied)
37. In S K. Raju vs. State of West Bengal 2018 INSC 780, Full Bench of Hon'ble Apex Court categorically observed that Section 43 is attracted in cases where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. Paras-7 and 8 of the said judgment are reproduced as under :
"7. An empowered officer Under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an Article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
8. The Appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application."
(emphasis supplied)
38. As per the aforesaid judgments, in case of detention and search of any suspect in any public place, section 42 does not apply, rather section 43 is applicable and as such, there is no requirement to take down in writing the secret information as per section 42(1) and sending the same to the immediate official superior within 72 hours, as per the mandate of section 42(2) of NDPS Act.
39. In the present case, the secret information was received at 10:10 A.M, based on which PW7 SI Yogesh Kumar constituted raid and left the Police Station at about 10:40 a.m. The official reached near H.No. 44/213, Masjid Vali Gali, Mukesh Nagar and the secret informer pointed towards the accused. When the police team started moving towards the accused, the accused started going towards her house, then she was stopped in the gali itself with the help of PW11/WCt. Jyoti and as such the recovery was effected from her in the gali and not after she had entered in the house.
DLSH010011882018 Page 27 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act The Gali, being a public road/alley, the recovery in the present case was affected at a public place, allegedly from the possession of the accused.
40. As per section 43 of NDPS Act, any officer empowered u/s.42 may detain and search any suspect, whom he has reasons to believe to have committed offence under NDPS Act and also seize any narcotic drug or psychotropic substance, if so found in such public place. In this case, it was PW7 SI Yogesh Kumar, who received the secret information. As stated earlier, PW7 SI Yogesh Kumar being a Sub-Inspector in Delhi Police, is empowered u/s.42 NDPS Act vide notification dated 14.11.1985. As per the said notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW7 SI Yogesh Kumar, being a Sub- Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act. As per section 43, in view of the aforesaid notification, PW7 SI Yogesh Kumar was also empowered to detain and search any suspect found in any public place, whom he had reason to believe to have committed an offence punishable under NDPS Act. Therefore, as per Section 43 of the NDPS Act, PW7 was competent to take action on the secret information so received at 10.10 A.M., without even recording the secret information in writing (as Ex. PW7/A) and without forwarding the same to the immediate official superior i.e. to PW9 Insp. Vijay Kumar, Acting SHO PS Vivek Vihar.
41. Therefore, in the opinion of the Court, the provisions of Sections 43 NDPS Act, which are applicable in the present case, as the recovery was made in a public place (gali/alley), were duly complied with in the facts of the present case.
42. However, the fact that PW7 and PW9 categorically deposed that the secret information recorded vide DD NO. 10A Ex. PW7/A was placed by PW7 before PW9 DLSH010011882018 Page 28 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act and was forwarded by PW9 to the office of ACP/PW12; the failure of the investigating agency to produce the said document; the absence of the entry with respect to the said DD No. 10A in the diary register (Ex. PW6/C) maintained in the office of ACP/PW12, together with the absence of any deposition of PW12 regarding have ever seen DD No. 10A with respect to the secret information, is indicative of the fact that the deposition of PW7 and PW9 with respect to the forwarding of DD No.10A Ex. PW7/A is subsequent improvement in the deposition before the Court and to some extent therefore tarnishes the credibility of these two witnesses. Discussion on the point of compliance of Section 50 of NDPS Act
43. Section 50 NDPS Act is as under :
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." (emphasis supplied)
44. As per prosecution case, after apprehension of the accused, she was served with the mandatory notice under Section 50 of the NDPS Act and only after her refusal to avail her legal rights, her search was carried out. However, in her statement recorded DLSH010011882018 Page 29 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act under Section 313 Cr.P.C., in answer to question no. 6, the accused denied that she was given notice u/s.50 NDPS Act and that her refusal was recorded on the same.
45. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused?
46. PW7 SI Yogesh Kumar in his deposition categorically stated that after the accused was apprehended, she was informed about her legal rights that she can get herself searched in the presence of any Gazetted Officer and Magistrate or that she can be taken to Gazetted Officer and Magistrate for her search and before her search is conducted she can search the members of the raiding team. PW7 prepared notice u/s.50 of NDPS Act in his handwriting and handed over the same to the accused, who refused to avail her legal rights and recorded her refusal on the carbon copy Ex. PW1/A in her own handwriting. Testimony of this witness on this aspect is as under:
"Thereafter I apprised her for her legal right by saying that she can get herself searched as well as search the raiding team in the presence of any Gazetted officer or the Magistrate or that she can be taken to a gazetted officer or magistrate for this purpose, however accused refused to get herself searched in the presence of any Gazetted officer or the Magistrate as well as to search the raiding team in the presence of any Gazetted officer or the Magistrate. I prepared a notice under section 50 of the NDPS Act in duplicate by putting carbon paper between two white papers. I handed over original notice under section 50 of the NDPS Act to the accused. Thereafter the accused wrote her refusal on the carbon copy of notice in her own handwriting and signed the same. The said denial of reply is encircled on carbon copy at point A. The said notice is already Ex.PW1/A which bears signature of accused at point X and carbon impression of my signatures at point C and my signatures at point D below the denial of accused."
47. The witness was cross-examined as regards notice u/s.50 NDPS Act, however, in the cross-examination, the witness categorically denied the suggestions that signature of the accused were taken on blank papers and that they were subsequently converted into false and fabricated disclosure statement and other documents. He also denied the suggestions that documents were prepared by him while sitting in the PS and the signatures of the witnesses were obtained later on. The deposition of PW7 as regards DLSH010011882018 Page 30 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act the service of notice u/s 50 NDPS Act on the accused is further supported by deposition of PWs 1,3,4,8 and 11.
48. It may be noted that while PW3, PW7, PW8 and PW11 stated that the refusal on the carbon copy of notice u/s 50 NDPS Act Ex. PW1/A was written by the accused in her own handwriting, witnesses PW1 and PW4 stated that the said refusal was written by PW7/SI Yogesh in his hand writing. Thus, there is material contradiction as regards who has recorded the refusal of the accused on the carbon copy of notice u/s 50 NDPS Act Ex. PW1/A.
49. It is further noted that the notice u/s 50 NDPS is signed by only two persons as witness i.e. PW1 HC Sujeet and PW11 W/Ct. Jyoti. They both are also signatory, as witnesses, to the refusal of the accused recorded at point A on the notice u/s 50 NDPS Act and both of them deposed contrary to each other regarding the fact as to who had written the refusal on the carbon copy Ex. PW1/A. It may be repeated here that PW1 in his examination-in-chief stated that the refusal was recorded by SI Yogesh in his own handwriting, whereas PW11 in her examination-in-chief stated that the same was written by the accused in her own handwriting. The contradiction is material in nature and do raise serious doubt regarding compliance of Section 50 NDPS Act, which assumes significance in the present case as the recovery was made upon bodily search of accused.
50. The notice u/s 50 NDPS Act has also been challenged by the Ld. counsel for the accused on the ground that the said notice Ex. PW1/A does not mention that the accused was informed that it is her right to be taken to 'nearest' Magistrate or Gazetted Officer for her search, if so required by her. Therefore, the notice is defective.
51. In this regard Ld. Counsel relied upon judgment titled Mohd. Jabir Vs. State (NCT of Delhi)2 2023 SCC Online Del 1827. However, the judgment in Mohd Jabir 2 Relevant pars of the judgment:
DLSH010011882018 Page 31 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act (supra) was challenged in appeal before the Hon'ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd. Jabir {Crl. Appeal No.4921/2024 dated 02.12.2024}. In the said judgment Hon'ble Apex Court, observed as under:
"It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word "unnecessary delay" and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word 'any' does not satisfy the mandate of the 'nearest' Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding." (emphasis supplied) Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
52. In view of the testimonies of above witnesses, namely, PW1, PW3, PW4, PW7 and PW11, the prosecution proved that the accused was served with the notice under Section 50 of the NDPS Act before her bodily search, however, the prosecution failed to prove beyond doubt as to whether the refusal recorded on the carbon copy of notice Ex. PW1/A, was duly recorded as per the response of the accused to the notice, as "42. In the present case, section 50 notice which was served upon the applicant reads as under: "You have the legal right to get yourself searched in the presence of any Gazetted Officer or Magistrate."
43. In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate
44. However, the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.
45. It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50. .........
47. As is clear from the above, the emphasis on the word "nearest" is important since it ensures independence. In deviating from the provisions as laid down in section 50, the IO practiced a third option of having the search conducted by someone who was part of the operation of this particular alleged drug seizure. The IO practiced a third option which is unknown to law."
DLSH010011882018 Page 32 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act two witnesses i.e. PW1 and PW4 stated that the response to the notice was written by IO/PW7 whereas PW3, PW7, PW8 and PW11 stated that the response was written by accused herself in her own handwriting. Therefore, though the service of the notice has been duly proved, but whether the reply to the same was duly recorded could not be proved by the prosecution beyond reasonable doubt. Discussions on non-joining of the public witnesses
53. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses.
54. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW7 SI Yogesh Kumar, IO that he made sincere efforts to join public witnesses, but none agreed.
55. In this regard, PW7 deposed that after reaching at Rikshaw Garage, Jwala Nagar, he had asked 4-5 public persons to join the investigation, but none agreed and they left without disclosing their name and addresses. He further stated that no written notice was served on the public persons due to paucity of time. This witness further testified that even after the notice u/s.50 NDPS Act was served on the accused, he again asked 4-5 public persons to join the investigation, but none agreed to join the same. Nothing is found from the cross-examination of the witness to doubt the aforesaid deposition. In his cross-examination, he categorically denied the suggestions that there are no public witnesses in this case, as the accused was not arrest at the place and time as mentioned in the chargesheet.
56.The deposition of PW7 in this regard is supported by the testimony of PW1/HC Sujit, PW3/Ct. Puneet, PW4 Ct. Ravi, PW8 Ct. Sugam Singh Meena as well as by PW11/W.Ct. Jyoti. All the said witnesses stated that the IO/PW7 made efforts twice DLSH010011882018 Page 33 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act to join public persons in the investigation, but despite his efforts none of the public witnesses joined the investigation and left the spot without disclosing their name and addresses.
57. Therefore, if efforts to include a public witness have been documented but were unsuccessful, the absence of an independent witness does not undermine the prosecution's case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana 2010 (2) SCR 785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
58. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal AIRONLINE 2012 SC 728, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
59. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an DLSH010011882018 Page 34 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
60. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal and Ors. vs. State MANU/DE/3428/2016 : 2016:DHC:8131 while observing that recovery cannot be doubted for the reason of non-joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop Vs. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh MANU/SC/0503/1988 : 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
20. In 'Ramjee Rai and others v. State of Bihar', (2006) 13 SCC 229, it has been opined as follows:
"26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."
21. Resultantly, no adverse inference can be drawn against the prosecution on account of the inability of the raiding party to join public witnesses. It is not as if no effort was made by them in this regard. They did make efforts at several places but no member of the public agreed to be associated for various reasons.."
61. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as it is clear that sufficient efforts were made by DLSH010011882018 Page 35 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act PW-7 SI Yogesh Kumar to join public witnesses in investigation. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
Discussion on the point of recovery of contraband
62. As per prosecution case, on 06.01.2018 one secret informer came to PS Vivek Vihar and met PW7 SI Yogesh Kumar and informed him that accused Reena, resident of H.No.44/213, Masjid Wali Gali, Mukesh Nagar, Shahdara used to sell smack outside of her house and if raid is conducted, she can be apprehended. PW7 produced the secret informer before PW9 Inspector Vijay Kumar, who informed about the secret information to ACP Vivek Vihar. ACP Vivek Vihar directed an immediate raid, which directions were passed on by PW9 Inspector Vijay Kumar to PW7. PW7 constituted the raiding team including PW1 HC Sujit, PW4 Ct. Ravi, PW8 Sugan Singh Meena, PW3 Ct. Punit and W/Ct Jyoti PW11. PW7 along with other members of raiding team left PS in govt gypsy along with field testing kit, IO kit and electronic weighing machine vide DD no.11A Ex.PW3/1. The raiding team along with secret informer reached rickshaw garage Jwala Nagar where the govt gypsy was parked and 4-5 public persons were asked to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses. PW7 along with police officials and secret informer reached at 44/213, Masjid wali gali Mukesh Nagar on foot where the secret informer pointed towards the accused and upon seeing the police officials the accused attempted to enter into her house, however she was stopped by PW11 and upon enquiry she disclosed her name Reena w/o Subhash @ Nandu. PW7 informed accused about her legal rights and gave notice under section 50 of the NDPS Act Ex.PW1/C to the accused, but she refused to avail her legal rights. After recording refusal of accused, the IO again ask 4-5 public persons to join the investigation but none agreed to join the investigation and left without disclosing DLSH010011882018 Page 36 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act their names and addresses. In the meanwhile PW9 Inspector Vijay Kumar (acting SHO) also reached the spot and accused was searched by PW11 behind the door of the house and one pink colour polythene containing 130 small pudias were recovered from her possession. The puddias were found containing brown colour powder which upon being tested with field testing kit was found to be positive for heroin. The contents of 130 pudias were placed in a transparent polythene pouch and it was weighed and found to be 13.580 grams. Out of the said polythene pouch two samples of 2 grams each were taken into different plastic polythene and they were marked as S1 and S2. The two polythenes containing samples were thereafter kept in separate white pullandas and sealed with the seal of YK. The remaining contraband along with 130 empty pouches was kept in another cloth parcel and sealed with the seal of YK and marked as Mark A. All the three pullandas were thereafter seized vide seizure-memo Ex.PW1/B which bears signature of accused as well as signatures of PW1, PW3 and PW11. PW7 filled the FSL form and handed over the same to to PW8. PW9 (acting SHO) also counter-sealed the three pullandas with the counter seal of VK and also placed his seal on FSL form. PW7 handed over the carbon copy of seizure-memo, FSL form and three sealed pullandas to PW9, who took them to PS and deposited it with PW5 ASI Ratan Lal (MHCM). PW5 deposited the said parcels in the malkhana vide entry no.14 in register no.19 ExPW5/A.
63. To prove the aforesaid recovery, the prosecution examined PW1 HC Sujeet, PW3 Ct.
Puneet, PW4 Ct. Ravi, PW7 SI Yogesh, PW8 Ct. Sudan Singh Meena and PW11 W/Ct. Jyoti.
64. PW7 in his examination-in-chief as regards the secret information and consequently the recovery made from the accused, deposed as under:
"On 06.01.2018, I was posted at PS Vivek Vihar as SI. On that day I was present in the PS and at about 10.10 am, one secret informer came to PS and met me and told that one lady namely Reena resident of H.No.44/213, Masjid Wali Gali, Mukesh Nagar Shahdara, used to sell smack outside her house and can be apprehended if raided. After satisfying myself with the information, I produced the secret informer before Inspector Vijay Kumar SHO PS Vivek Vihar DLSH010011882018 Page 37 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act at about 10.20 am. Inspector Vijay Kumar made enquiries from the secret informer and after satisfying himself, he informed ACP Vivek Vihar in his office about the secret information, who directed to conduct immediate raid. I lodged DD No.10A regarding the secret information which is Ex.PW7/A which bears my signature at point A and produced the copy of DD before SHO, on the directions of SHO, I constituted a raiding party consisting myself, HC Sujeet, Ct. Ravi, Ct. Shagun, Ct. Punit and W/Ct. Jyoti. I shared the secret information with the raiding team members and briefed them. Thereafter I along with all the above mentioned police officials left the PS in Govt Gypsy along with field testing kit, I0 kit and electronic weighing machine at about 10.50 am vide DD No.11A, copy of which is already Ex.PW3/1 which bears my signature at point A. Ct. Ravi was driving the said Gypsy. The secret informer was also with us. We were going towards the above mentioned spot via railway line, Jwala Nagar. Within 15 minutes we reached at Rickshaw garage jwala nagar and parked the above mentioned Gypsy there. I had asked 4-5 public persons to join the investigation but none agreed to join the investigation. They did not disclose their names and addresses. No written notice was served by me due to paucity of time. Thereafter I along with above mentioned police officials and secret informer reached at 44/213, Masjid wali gali, Mukesh Nagar on foot. The secret informer pointed towards one lady who was standing outside of house no. 44/213, Masjid wali gali, Mukesh Nagar by saying that she is the lady who was having smack. After pointing towards the accused, secret informer left the spot. When we were going towards the said lady, on seeing us, she started going towards her house. The above mentioned house belongs to her. 1 stopped the said lady with the help of W/Ct. Jyoti. I enquired from her and her name revealed as Reena W/o Subhash @ Nandu.
................I handed over original notice under section 50 of the NDPS Act to the accused. Thereafter the accused wrote her refusal on the carbon copy of notice in her own handwriting and signed the same................
Thereafter I again asked 4-5 public persons to join the investigation but none agreed to join the investigation. No notice was served to those persons. In the meanwhile Inspector/SHO Vijay Kumar reached at the spot. W/Cr. yoti had conducted the personal search of the accused Jyoti behind the door of the house of the accused. One pink colour polythene was recovered from her possession. The same was tied. I opened the said polythene containing 130 small pudia (packets). All the said 130 small pudia were opened and found containing brown colour powder. I had checked the said brown colour powder and it was found heroin. Contents of all the 130 small pudia were put into one transparent polythene. I tested the contents of the pudias in field testing kit which gave positive result for heroin. I emptied the contents of all 130 pudia in a transparent polythene pouch. The same was weighed with the help of electronic weighing machine. The weight of the same including plastic polythene was 13.580 grams.
I took out two samples of 2-2 grams each and same was put into the two different plastic polythene. I kept the samples in two separate white cloth pullands which were sealed with the seal of YK and gave it mark S1 and S2. The remaining heroin in the transparent plastic pouch was kept in the same pink colour polythene bag along with 130 empty pouches, which was kept in a cloth parcel which was sealed with the seal of YK and the parcel was marked as mark A. I DLSH010011882018 Page 38 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act prepared seizure memo of the pullandas which is already Ex.PW1/B which bears my signature at point C. I filled up the FSL form. The seal was handed over to Ct. Shugan after use by me. SHO inspector Vijay Kumar also sealed three said pullandas with his seal i.e. VK. Inspector Vijay Kumar also sealed the FSL form. I handed over carbon copy of seizure memo, FSL form all the three sealed pullanda to SHO Inspector Vijay Kumar. "
65. The deposition of this witness is corroborated by PW1 HC Sujeet, PW3 Ct. Puneet, PW4 Ct. Ravi, PW8 Ct. Sudan Singh Meena and PW11 W/Ct. Jyoti.
66. The deposition of the aforesaid witnesses has been challenged by the Ld. Counsel for the accused on the ground that when the case property was produced before the Court and exhibited as Exs. P1, P3 and P4, the Court did not find any seal of YK on the case property or on the two samples, as deposed by the aforesaid witnesses. He further stated that the prime witness i.e. PW11 W/Ct. Jyoti, who had carried out the bodily search of the accused and had allegedly recovered the contraband from the person of the accused stated that she did not know as to whether the IO was carrying the field testing kit or not, that no money or jewellery articles were recovered from the personal search of the accused and most importantly, that the seal on the case property was not placed by PW7 / IO in her presence as she had gone to hospital with the accused.
67. The aforesaid contradictions in the deposition of PW11 W/Ct. Jyoti are found to be material in nature, particularly for the reason that she stated that the case property was not sealed in her presence by PW7 / IO, whereas, the seizure memo Ex. PW1/B bears the signatures of PW11 as a witness. The witness not only stated3 that the seal on the case property was not placed in her presence by PW7 / IO, but she also explained the reason for the same by stating that at that time, she had gone to the hospital with the accused. If it is so, then either the signatures of PW11 on the seizure memo Ex. PW1/B were obtained in blank, before she left for the hospital, or were obtained at the PS, when she came back from the hospital. In both the cases, the 3 "Seal was not placed on the case property by the IO in my presence as I had gone to the hospital with the accused"
DLSH010011882018 Page 39 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act recovery becomes doubtful and the benefit thereof would obviously go to the accused.
68. It may be noted here that the said contradiction in the deposition of PW11 gets further aggravated by the fact that when the case property was for the first time produced before the Court on 25.09.2023 during the deposition of PW1, neither the pullanda Mark A, nor the two samples Mark S-1 and S-2 were found having the seal of YK i.e. the seal of PW7 / IO, which as per the seizure memo was placed upon the case property and the samples at the spot itself.
69. Ld. Addl. PP submitted that may be on 25.09.2023, when the case property was produced, the seals of VK and YK, being similar to each other, could not be distinguished and as such it was mentioned that the case property and the samples were having the seal of VK.
The said argument is found to be devoid of merits for two reasons, firstly, because the seal of YK, as per the deposition dated 25.09.2023, is missing not only on the case property (pullanda A), but also on the samples (Pullanda S1 and S2) received from FSL. It is difficult to believe that neither the Court, nor the Prosecutor or witness, present on that day, were able to distinguish between the seals of VK and YK on the case property i.e. pullanda Mark A as well as on two samples (Mark S1 and S2).
Secondly, the same case property was produced and again reopened during the deposition of PW3 Ct. Puneet on 23.02.2024 and even at that time, the case property and the samples were found bearing the seal of VK only. It is difficult to believe that even on that day, neither the witness (PW3), nor the Prosecutor, or the Court were able to distinguish the seal of VK from YK and, therefore, failed to mention about the seal of YK on the case property and the samples.
70. Thus, it is not once, but twice that the case property was produced before the Court on 25.09.2023 during the deposition of PW1 and on 23.02.2024 during the deposition DLSH010011882018 Page 40 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act of PW3, but on both the dates, the only seal which was found on the case property or on the samples so received from FSL was that of VK and not of YK.
71. Moreover, PW11 stated in cross-examination that she did not know whether the IO was carrying the testing kit or not. This is contrary to her examination-in-chief where she stated that the recovered substance was tested on field testing kit and found positive for heroine.
72. Accordingly, in the opinion of the Court and in view of the material contradictions found in the deposition of prime witness PW11 W/Ct. Jyoti and further in view of the discrepancy of the seals on the case property when the same was produced before the Court, it cannot be said that the recovery from the accused has been proved beyond reasonable doubt.
Discussion on proceedings u/s. 52A of NDPS Act
73. Ld. Counsel for accused had submitted that as the sampling proceedings in the present case were not conducted by the Magistrate u/s 52A NDPS Act, hence as per judgment of Union of India Vs. Mohan Lal (2016 (3) SCC 379) and Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328), the trial stands vitiated, and the accused is entitled to acquittal.
74. Admittedly, sampling in the present case was done at the spot and not before the Magistrate as per section 52A NDPS Act. The question before the court is whether the entire trial stand vitiated in view of the said non-compliance?
75. In Mohan Lal (supra), Hon'ble Apex Court while discussing the ambit and purport of section 52 A NDPS Act, observed as under:-
"16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate DLSH010011882018 Page 41 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
........
19. [...] There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."
76. In Yusuf @ Asif (supra), Hon'ble Apex Court while setting aside the conviction of appellants therein, relied upon Mohan Lal (supra) and observed as under
"10. [...] it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act. xxx xxx xxx
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer DLSH010011882018 Page 42 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub- section (2) of Section 52A of the NDPS Act.
xxx xxx xxx
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
77. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif 2024 INSC 10454, discussed the effect of non-compliance of section 52A NDPS Act on the outcome of trial and summarized the observations in para 39 as under:
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.4
Judgment dated 20 December 2024.
DLSH010011882018 Page 43 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub- section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."
78. In a very recent judgment of Bharat Ambale Vs. The State of Chhattisgarh, 2025 INSC 78, Hon'ble Apex Court answered the question whether non-compliance of section 52A NDPS Act leads to automatic acquittal. This was the only ground on which the conviction upheld by Hon'ble High Court was under challenged before the Apex court. Relevant paras indicating the issue directly before the Hon'ble Court are as under:
"3. The only contention raised before us by the learned counsel appearing for the appellant herein is that the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS Act.
4. The learned counsel appearing for the appellant placed strong reliance on the decision of this Court rendered in the case of Union of India v. Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good his submission that non- compliance of Section 52A of the NDPS Act along with the relevant rules, would vitiate the entire trial and the conviction."
79. Hon'ble Apex Court discussed at length Mohan Lal (supra), Yusuf @ Asif (supra) DLSH010011882018 Page 44 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act and several other judgments and discussed the outcome thereof in the following paras:
"24.What is discernible from the various decisions referred to by us, is that mere non- compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not by itself render the trial vitiated or into an automatic acquittal. In all instances where this Court set-aside the order of conviction, it did so not solely for the reason that there was a violation of Section 52A but because of and on the strength of the other discrepancies or shortcomings in the prosecution's case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place.
27.In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.DLSH010011882018 Page 45 of 57 SC No.81/2018
State Vs. Reena FIR No.5/18 U/s.21 NDPS Act
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight DLSH010011882018 Page 46 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc.
31.At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved.
32.Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra).
33.Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking.
80. The Hon'ble Court finally summarized the law on the subject in para 50 as under:
DLSH010011882018 Page 47 of 57 SC No.81/2018State Vs. Reena FIR No.5/18 U/s.21 NDPS Act "50.We summarize our final conclusion as under: -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act. (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the DLSH010011882018 Page 48 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt." (emphasis supplied)
81. Though, in the present case there is no compliance of section 52A NDPS Act, as the sampling proceedings were done by the IO at the spot, however, in view of the judgment in Kashif (supra) and Bharat Ambale (supra), the said fact by itself does not vitiate the trial. As held by the Hon'ble Court in absence of compliance u/s 52A NDPS Act the onus is upon the prosecution to prove by cogent evidence that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
82. As per FSL report Ex. AD-1 (admitted by accused under section 294 Cr.P.C), parcel Mark S1 was found bearing one seal of YK and one seal of VK and parcel Mark S2 was also found bearing one seal of YK and one seal of VK. Thus, as per the FSL result Ex. AD-1, the two samples drawn at the spot and sealed with the seal of YK by PW-7 and with the counter seal of VK by PW-9 at the spot, were received in the same condition with all the seals intact in the FSL on 25.11.2014.
83. It may be noted that the case property in original as primary evidence was produced during the testimony of PW1 and opened in the Court. The observation of the Court at the time of opening the case property during the testimony of PW2 is relevant to DLSH010011882018 Page 49 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act find out whether the case property sealed at the spot with the seal of YK and VK and Marked as pullanda A was produced as primary evidence before the court with the said seals on the pullanda intact. The said portion of the testimony is reproduced as under:
"At this stage, MHCM has produced one white colour pullanda Mark A sealed with two seals of VK. The seal is opened and it is found containing one pink colour polythene containing one small pudia (pouch) which was tied with the help of rubber and small empty transparent pouches of 130 were also found in that pink colour polythene and the same shown to the witness. After seeing the same the witness states that the said heroin was recorded from the possession of the accused Reena. The said polythene bag along with heroin is Ex.P-1. The said empty small pudia i.e. 130 are Ex.P-2 (colly.).
At this stage original notice under Section 50 of the NDPS Act in unsealed condition. The said notice is Ex. PW1/C which bears my signature at point A. At this stage MCM has produced one yellow colour envelope Mark S1 bearing case particulars duly sealed with the seal of SC FSL DELHI. The seal is broken and same is opened and found one small polythene pouch containing heroin and one cloth pullanda bearing seal with the of VK. The said cloth pullanda was opened from one side. The case particular is also written on the said cloth pullanda. The same is shown to the witness. After seeing the same, the witness states that it is the sample which was lifted from the heroin which was recovered from the possession, of accused. The same is Ex.P-3.
At this stage MCM has produced one yellow colour envelope Mark S2 bearing case particulars duly sealed with the seal of SC FSL DELHI. The seal is broken and same is opened and found one small polythene pouch containing heroin and one cloth pullanda bearing seal with the seal of VK. The said cloth pullanda was opened from one side. The case particular is also written on the said cloth pullanda. The same is shown to the witness. After seeing the same, the witness states that it is the sample which was lifted from the heroin which was recovered from the possession of accused. The same is Ex.P-4."
84. According to the court's observation, when the case property was first physically presented during PW 1's deposition, it is noted that none of the packages had the seal of YK. The seal of YK was found missing on pullanda Mark A, which after the seizure, was for the first time produced before the court on 25.9.23 during the deposition of PW-1.
85. Detailed discussion on this aspect has been done while discussing the recovery in paras 68 to 70 of this judgment, hence the same is not being repeated here.
86. The failure to get the sampling proceedings conducted and subsequent failure to keep DLSH010011882018 Page 50 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act the property in safe custody and produce the same in the same form and with same seals with which it was seized at the spot, has gone to the root of the case and has ultimately resulted in the failure of the production of the recovered case property as primary evidence to prove the recovery.
87. At this stage the court would like to refer to judgment of Mohanlal (supra) wherein the Hon'ble Apex court took up the issue of safe keeping of the recovered contrabands. The relevant paras of the said judgment are already reproduced above. After reading of the said judgment, it can be said that the present case is a classic textbook example of the situation that the Hon'ble Apex Court was referring to and rectify in the said case.
88. Accordingly, the prosecution failed to prove that non-compliance of section 52A NDPS Act does not affect its case against the accused, as the case property seized at the spot could not be produced as primary evidence before the Court, with both the seals intact.
Discussion on proceedings u/s. 55 of NDPS Act
89. As per the prosecution case, PW-7 SI Yogesh, IO of the case, after the recovery of the contraband from the accused in 130 small pudias, placed the content of the said pudias in one transparent polythene and tested the substance with field testing kit which was found positive of Heroine. The said transparent polythene was weighed and was found to be 13.580 gms. Two samples of two grams each were drawn from the said plastic polythene and placed into two different plastic polythene and two pullandas of the said samples maked S1 and S2 were prepared, which were sealed with the seal of YK by PW7/SI Yogesh Kumar. The remaining Heroine, alongwith 130 empty pouches, was placed in cloth pullanda and was given mark A. It was also sealed with the seal of YK. The said three pullandas were thereafter seized vide seizure memo Ex. PW1/B. The seal was handed over to PW8 Ct. Sugandh Singh DLSH010011882018 Page 51 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act Meena. As by the time of recovery, PW9 Insp. Vijay Kumar had also reached at the spot hence he also placed his counter seal of VK on the aforesaid three pullandas.
90. As per the deposition of PW9 Insp. Vijay Kumar, who had also reached the spot, PW7/SI Yogesh Kumar prepared the three pullandas and sealed them with the seal of YK after which the same were handed over to this witness and he too sealed the said pullandas with the counter seal of VK.
91. This fact was duly recorded in the rukka Ex. PW7/B and consequently also finds mention in the FIR recorded on 06.01.2018 at 03:00PM which is Ex. PW2/A. The court has gone through cross-examination of PW7 and PW9, however, there is nothing in the cross-examination to doubt the fact that the case property and the samples, in total three pullandas bearing mark A, S1 and S2 were counter sealed by PW9/SHO with the seal of VK.
92. The FSL result Ex. AD1, which was admitted u/s 294 Cr.P.C on 29.10.2024, the two samples which were received at the FSL bearing Mark S1 and S2 were both sealed with one seal of VK and one seal of YK each, which corroborates the deposition of PW7 and PW9.
93. In opinion of the Court, section 55 NDPS Act was duly complied with in the facts of the present case.
Whether recovered substance is Heroin?
94. The case of the prosecution is that the substance, which was recovered from the possessions of the accused persons is Heroin.
95. In order to prove this fact, the prosecution relied upon FSL result dated 29.05.2018 prepared by Dr. Subhash Chandra, Sr. Scientific Officer (Chemistry), FSL, Rohini. The said FSL report was admitted by the accused on 29.10.2024 and exhibited as Ex. AD-1.
96. As per the said report dated 29.05.2018, two sealed cloth parcels bearing one seal of YK and one seal of VK each, were received in the FSL on 10.01.2018. The said DLSH010011882018 Page 52 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act parcels were examined by Dr. Subhash Chandra from 16.05.2018 to 29.05.2018. During examination, it was found that the sealed cloth parcels contained redish brown coloured powdery material weighing 2 gms each. On physical, microscopic, chemical, TLC, GC and GC-MS examination, the exhibits were found to contain diacetylmorphine, 6 - monoacetylemorphine and acetylecodeine. Sample S-1 was found to contain 20.9% diacetylmorphine and sample S-2 was found to contain 21.9% diacetylmorphine.
97. Thus, the weight of the sample as drawn at the spot, is in line with the weight of the samples, as found by the expert examiner during the analysis of the sample. As per Section 2 (xvi)(d) of NDPS Act, diacetylmorphine i.e. heroin is an opium derivative, which falls within the definition of manufactured drug u/s.2 (xi)(a) of NDPS Act and consequently within the definition of narcotic drug u/s.2 (xi)(b) of NDPS Act and possession of the same is restricted by Section 8 (c) of the NDPS Act.
98. Moreover, as submitted by Ld Addl PP, out of 13.580 grams of contraband recovered, almost 1/3rd i.e. 4 grams (two samples of 2g each) pf the substance was sent to FSL, thus there was no scope of mixing etc, particularly when the substance was taken out of 130 pudias.
99. Thus, the court has no hesitation in holding that the substance recovered from the accused persons was heroin, as defined under section 2(xvi)(d) of NDPS Act. Discussion on compliance u/s. 57 of NDPS Act
100. Section 57 of NDPS Act is reproduced as under:
"57. Report of arrest and seizure.--
Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
101. As per the evidence of PW7 SI Yogesh Kumar and PW10 SI Pooja, both of them prepared separate reports under section 57 NDPS Act w.r.t. seizure of contraband and arrest of the accused, which are Ex. PW6/A and Ex. PW6/B respectively.
102. As per the deposition of PW6 HC Swayam Prakash, he was working in the office of DLSH010011882018 Page 53 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act ACP Vivek Vihar, the said two reports Exs. PW6/A and PW6/B were received in the office of ACP on 06.01.2018 and were entered in diary register vide entry nos.91 & 92 respectively, which is Ex. PW6/C. Both the said reports, as per the deposition of PW9 Insp. Vijay Kumar, were forwarded by him under his signatures.
103. Further, PW12 ACP Mohd. Iqbal also categorically stated that he had seen the said reports Exs. PW6/A and PW6/B on 06.01.2018 and both of them bear the signatures of the said witness.
104. Therefore, in the opinion of the Court, the provisions of Section 57 NDPS Act were duly complied with in the facts of the present case.
Videography and Photography not done during the proceedings and CCTV footage not produced
105. It was submitted that, though, the spot, where the accused was allegedly apprehended in a thickly populated residential area near railway line and rickshaw garage, but neither CCTV footage of the spot was collected, nor videography or photography of the proceedings was conducted by the investigating agency.
106. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2018.
107. The question before the Court is whether the absence of photography or videography or the availability of CCTV footage in proceedings done about ten years ago in 2018 is fatal to the prosecution case.
108. Though, the videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
109. It may be noted that the police officials are generally hesitant to take photographs and videos using their personal mobile phone, and more so seven years ago in 2018, as they fear that their personal phones may not have to be seized as primary evidence in that case. Recently, Hon'ble Punjab and Haryana High Court in Ashok Kumar DLSH010011882018 Page 54 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act Vs. State of Haryana, CRM (M) No.14560/2025 order dated 21.03.2025 reprimanded the police officials for not seizing the mobile phones in which recordings were made. Said order is reproduced as under:
"Learned counsel for the petitioner contends that in the present case, the alleged recording was made in the mobile phone, owned by Ajay Kumar, however, the police has neither taken the said mobile phone in possession nor has been sent to the FSL.
Learned State counsel submits that the statement made by learned counsel for the petitioner is correct and the mobile phone has not been taken into possession by the police.
It is shocking to know that the primary evidence in the present case has not been taken into possession by the police, till date, whereas, the FIR in the present case was registered on 31.12.2024. It also shows that the investigation in the present case is being conducted by the police in a very casual manner and without following the procedure established by the law. It appears that there was no monitoring of investigation by Senior Police Officers."
110. The police officials are thus hesitant even today to take photographs and videos on personal mobile phones, though, the said situation has been to some extent rectified by the introduction of e-sakshya recently.
111. Accordingly, the absence of videography and photography at the spot during recovery proceedings conducted in 2018, or absence of the CCTV footage, is not by itself fatal to the prosecution case.
Presumption
112. Established jurisprudence dictates that, once possession is demonstrated, the burden of proof shifts to the individual asserting a lack of conscious possession or awareness of concealment. Section 35 of the Act codifies this principle through a statutory presumption in law. Similarly, Section 54 permits a presumption arising from the possession of illicit items. It is incumbent upon the accused to substantiate their claim of either unawareness or absence of conscious possession of contraband.
113. Hon'ble Apex Court in Mohan Lal Vs. State of Rajasthan Crl. (2015) 6 SCC 222 dealt with this aspect in detail and held as under:
"12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision DLSH010011882018 Page 55 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
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16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery DLSH010011882018 Page 56 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused- Appellant cannot take the plea that he had committed an offence Under Section 9 of the Opium Act and not Under Section 18 of the NDPS Act."
114. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417, Hon'ble Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
115. Upon reviewing the evidence, the Court is of the opinion that the prosecution has failed to prove the foundational facts against the accused beyond reasonable doubt, as there is no compliance of Section 52A NDPS Act; the case property in original could not be produced before the Court with the seals intact; the seal of YK was not found on the case property, or on the samples, when it was produced before the Court on 25.09.2023 and 23.02.2024; the prime witness and signatory to the seizure memo i.e. PW11, W/Ct. Jyoti, stated that the seal on the case property was not placed by PW7 / IO in her presence; there is no mention of the seal of VK having been placed on the case property in register no.19 Ex. PW5/A, despite the fact that as per the deposition of all the recovery witnesses including PW7 / IO and PW9 / SHO, the SHO was very much present at the spot and had placed his counter seal of VK on the case property.
The presumption under sections 35 and 54 of the NDPS Act is not applicable in this case against the accused, as the recovery of contraband has not been established beyond reasonable doubt.
Conclusion
116. The prosecution failed to prove beyond reasonable doubt that the accused was found in possession of 13.5 gms of heroin (intermediate quantity) on 06.01.2018, as there DLSH010011882018 Page 57 of 57 SC No.81/2018 State Vs. Reena FIR No.5/18 U/s.21 NDPS Act is no compliance of Section 52A NDPS Act; the case property in original could not be produced before the Court with the seals intact, the seal of YK was not found on the case property, or on the samples, when it was produced before the Court on 25.09.2023 and 23.02.2024; the prime witness and signatory to the seizure memo i.e. PW11 W/Ct. Jyoti, stated that the seal on the case property was not placed by PW7 / IO in her presence; the two witnesses to the notice under section 50 NDPS Act deposed contrary to each other as regards who recorded the reply of the accused upon the same; there is no mention of the seal of VK having been placed on the case property in register no.19 Ex. PW5/A, despite the fact that as per the deposition of all the recovery witnesses including PW7 / IO and PW9 / SHO, the SHO was very much present at the spot and had placed his counter seal of VK on the case property and further in view evidence as discussed in earlier part of the judgment. Accordingly, no presumption can be raised under section 35 and 54 NDPS Act to the effect that the accused had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug / heroin without any authority or licence to be in possession of the same.
Order
117. Accordingly, accused Reena is acquitted of the offence punishable under Section 21(b) of the NDPS Act for being in possession of an intermediate quantity of heroin.
118. Accused is directed to furnish personal bond u/s.437A Cr.P.C. in the sum of Rs.20,000/- today and surety in the same amount within one week.
119. File be consigned to Record Room.
Announced in the open Court
On 25th day of April 2025 SAURABH
PARTAP
SINGH
LALER
(S.P.S. Laler)
Special Judge (NDPS Act)
Digitally signed
by SAURABH
PARTAP SINGH
LALER
District Shahdara
Date: 2025.04.25
16:51:04 +0530
Karkardooma Courts, Delhi