Delhi District Court
State vs Salim on 25 October, 2025
DLSH010047242016 Page 1 of 71 SC 957/2016 STATE Vs. SALIM & ORS. FIR No. 71/2016 (Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 957/2016 STATE Vs. SALIM & ORS. FIR No. 71/2016 (Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. (1) Salim, S/o Sh. Islam Navi, C/o Guljar, R/o Village Nakatia, Ujala Enclave, P.S. Cantt., Bareilly, U.P. Permanent address:- Village Singtara, Post Devrania, Tehsil Bahedi, Bareilly, U.P. (2) Mohd. Islam @ Munna, S/o Sh. Mubarik Hussain, R/o Village Nakatia, Umaria Wali Road, near Noori Masjid, P.S. Cantt., Bareilly, U.P. (3) Mohd. Abdur Rahim Sheikh, S/o Sh. Abdul Jabbar, R/o Mandal Mominpada, Majumpur, Kailachak, Malda, West Bengal. ....accused persons DLSH010047242016 Page 2 of 71 SC 957/2016 STATE Vs. SALIM & ORS. FIR No. 71/2016 (Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act (Sh. Yogesh Saxena, Advocate for accused Salim) (Sh. Ankit Gupta, Advocate for accused Mohd. Abdur Rahim Sheikh) (Sh. Akshay Tomar, Advocate for accused Mohd. Islam @ Munna) Date of institution : 12.07.2016 Date when Judgment reserved : 13.10.2025 Date of Judgment : 25.10.2025 JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 13.05.2016 at about 4:00 pm towards entry gate of Anand Vihar, ISBT, accused persons namely Salim and Mohd. Islam @ Munna were apprehended by the police on the basis of secret information. Accused Salim was found in possession of 200 gms of heroin in a transparent plastic polythene ( momi thaili) which was in a black colour heavy polythene (vajni thaili) which he was carrying in right pocket of his wearing pants. Nothing was recovered from accused Mohd. Islam @ Munna. During interrogation, accused persons namely Salim and Mohd. Islam @ Munna disclosed that source of heroin was one Mohd. Abdur Rahim Sheikh, R/o Malda, West Bengal. The above-mentioned DLSH010047242016 Page 3 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 200 gms heroin was also handed over to accused Salim by accused Mohd. Abdur Rahim Sheikh and it was to be supplied to one Qamil near Anand Vihar in Delhi. Their separate disclosure statements were recorded. Thereafter, at their instance, during PC of accused Salim, accused Mohd. Abdur Rahim Sheikh was arrested from Rajkamal Hotel, Bareilly Railway Station. On the basis of which, the present FIR was registered U/s 21/29 NDPS Act. The contraband was seized. The samples were drawn and sent to FSL. FSL report dated 12.07.2016 has been received wherein it is mentioned that the samples are containing diacetylmorphine (36.9%) and 6-monoacetylmorphine.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 12.07.2016 charge-sheet U/s 21/29 NDPS Act was filed against accused persons namely Salim and Mohd. Islam @ Munna and charge-sheet U/s 29 NDPS Act was filed against accused Mohd. Abdur Rahim Sheikh.
CHARGE
3. In terms of orders on charge dated 04.08.2017 and 19.01.2018, on 25.01.2024 charge U/s 21(b) NDPS Act was framed against accused Salim and charge U/s 29 r/w Section 21(b) NDPS Act was framed against all the accused persons.
PROSECUTION EVIDENCE
4. In order to prove the aforesaid charges, the prosecution has examined 13 witnesses.
DLSH010047242016 Page 4 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
5. PW-1 Inspector Rajni Kant deposed that on 13.05.2016 he was posted as SI at Narcotic Cell Kotwali, Crime Branch, Delhi. On that day, he was present in the office. At about 2:00 pm, a secret informer came to him and informed that Salim and Islam both residents of Bareilly are indulged in the supply of heroin. On that day they would come at the exit gate of ISBT, Anand Vihar with the consignment of heroin to deliver to someone between 3:45 pm to 4:15 pm and they can be apprehended with the contraband if raided.
This witness informed Inspector Akash Rawat regarding the secret information in his office alongwith the secret informer at 2:15 pm. Inspector Akash Rawat also inquired about the secret information from the secret informer. After getting satisfied with the information, Inspector Akash Rawat informed ACP PW-9 Sh. Ranbir Singh regarding the secret information in his office who directed him to take legal action as per law.
At about 2:30 pm this witness made a DD entry no.16 Ex. PW-1/A with regard to the secret information. He also produced the copy of the DD entry no.16 to Inspector Akash Rawat. On the direction of Inspector Akash Rawat, this witness prepared the raiding team consisting himself, HC Ismail, Ct. Shani and secret informer. This witness took the IO kit, electronic weighing machine, field testing kit from the cell. At about 2:45 pm this witness left with the raiding team alongwith secret informer in the private vehicle (blue colour Wagon R car) bearing registration no. DL 8CP 3419 vide DD No.17 Ex. PW- 1/B. This witness took the route of Shantivan traffic signal, Geeta Colony, Yamuna Bridge, Naala Road, in front of DC Office, Shakarpur, Karkarimor Red DLSH010047242016 Page 5 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Light and took right turn from there upto Telco T-Point and took left turn from there and reached exit gate of ISBT, Anand Vihar at about 3:30 pm. While they were on the way, this witness asked 4-5 public persons at Shantivan Red Light and 5-6 public persons at entry gate of ISBT, Anand Vihar to join the raiding team but none agreed to join the investigation and left without disclosing their names and addresses and also by giving reasonable excuses. This witness briefed the raiding team and parked the private vehicle just before 50 meters away from the exit gate ISBT, Anand Vihar. They took the position with the raiding team at around 3:40 pm after briefing the raiding party.
At about 3:50 pm, two persons were seen coming from the side of entry gate ISBT, Anand Vihar towards exit gate who were identified by the secret informer as Salim and Islam. This witness correctly identified both the accused persons in the Court. Secret informer identified the said persons from the distance of 25 meters and pointed out towards them by saying that they are the persons about whom he has given the information and left the spot.
Both the accused persons namely Islam and Salim waited for someone near the exit gate of ISBT, Anand Vihar, after waiting approximately for ten minutes, both of them started going back towards entry gate of ISBT, Anand Vihar. This witness alongwith staff apprehended both the accused persons at about 4:00 pm. Both of them were explained regarding the raiding team and the information. This witness asked 5-6 public persons to join the investigation but none agreed to join the investigation and left the spot without disclosing their names and addresses and also by giving reasonable excuses. No DLSH010047242016 Page 6 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act notice could be served upon them due to paucity of time. This witness called the parked private vehicle through Ct. Shani at the spot.
Thereafter, this witness served the original notice U/s 50 NDPS Act to both the accused persons namely Salim and Islam. The carbon copy of notices U/s 50 of NDPS Act are Ex. PW-1/C and Ex. PW-1/D. This witness also apprised the accused persons of their legal rights by saying that they can get themselves searched as well as search the raiding team and vehicle in the presence of any Gazetted Officer or the Magistrate. However, accused Salim refused to get himself 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. Accused Salim has denied to exercise his right and wrote his refusal on the carbon copy in his own handwriting. The refusal of accused Salim is Ex. PW-1/E. Accused also signed on the said reply at point B. However, accused Islam also refused to get himself 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. Accused Islam has denied to exercise his right. Since the accused Islam was illiterate and cannot write on the said notice, but he can sign only. The refusal of accused Islam was written by this witness as per his (accused Islam's) version, the same was read over to him. The refusal of accused Islam is Ex. PW-1/F. Accused also signed on the said reply at Point-B. Thereafter, cursory search of accused Salim was conducted and a black colour polythene containing a transparent polythene containing some mud colour substance was recovered from the right-side pocket of his pant which he DLSH010047242016 Page 7 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act was wearing at that time. The polythene was tied with the rubber band. The substance was checked with the help of field-testing kit and found to be heroin. The substance alongwith transparent polythene weighed on electronic weighing machine and found to be 200 grams.
This witness took out two samples of 05 grams each in two separate transparent polythene and converted into cloth pullanda and gave Mark-A and Mark-B. The remaining substance 190 grams was kept in the recovered same transparent polythene and kept the same in the recovered same black colour polythene and converted into cloth pullanda and gave Mark-C. All the three pullands were sealed with the seal of 5APS NB DELHI. Accused persons also signed on the cloth pullands. This witness also filled the FSL form and he also put the seal 5APS NB DELHI on the FSL Form.
This witness seized all three pullandas vide seizure memo Ex. PW- 1/G. The seal was handed over to HC Ismail after use.
Thereafter, cursory search of accused Islam was also conducted but no contraband was recovered from his possession, hence nil recovery memo in this regard was prepared, which is Ex. PW-1/H. Thereafter, this witness prepared the rukka which is Ex. PW-1/I and handed over the original rukka to Ct. Shani with the direction to hand over the same to DO for registration of FIR. This witness also handed over the pullandas of the case property in sealed condition and seizure memo of the case property and FSL form to Ct. Shani with the direction to hand over the same to the SHO for compliance U/s 55 NDPS Act. Thereafter, at about 8:00 pm, Ct. Shani went to P.S. Malviya Nagar (Crime Branch) by the private car used DLSH010047242016 Page 8 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act during the raid.
At about 11:50 pm, second IO SI Sanjay Neolia came to the spot alongwith copy of FIR and original rukka in the same private car. Thereafter, this witness handed over all the relevant documents prepared by him to SI Sanjay Neolia. This witness also gave the custody of both the accused persons to the second IO SI Sanjay Neolia.
From 12:00 to 12:10 am i.e. 14.05.2016 second IO prepared the site plan at the instance of this witness which is Ex. PW-1/J. Second IO recorded the statement of HC Ismail.
SI Sanjay Neolia interrogated the accused persons namely Salim and Islam. After interrogation, second IO arrested both the accused persons in presence of this witness vide arrest memo Ex. PW-1/K and Ex. PW-1/L. The personal search of both the accused persons were also conducted by second IO in presence of this witness vide personal search memo Ex. PW-1/M and Ex. PW-1/N. It is stated by him that from the personal search of accused Salim, one original notice U/s 50 NDPS Act, one black colour wallet containing Rs. 500/-, Aadhaar Card and Voter ID Card were recovered. From the personal search of accused Islam, one original notice U/s 50 NDPS Act, one black colour wallet containing Rs. 650/-, PAN card were recovered.
It is stated by him that the second IO also recorded the disclosure statement of both the accused persons in presence of this witness vide memos Ex. PW-1/O and Ex. PW-1/P. At about 2:30 am, second IO alongwith the raiding team and DLSH010047242016 Page 9 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act accused persons left the spot for the office of Narcotic Cell, Kotwali, Delhi. The said vehicle was being driven by this witness. They reached at the office of Narcotic Cell at about 3:00 am. Both the accused persons were produced before Inspector Aakash Rawat.
This witness also prepared report U/s 57 NDPS Act regarding recovery of the contraband from the accused persons and produced before Inspector Aakash Rawat, same is Ex. PW-1/Q. It is stated by him that on 14.05.2016 he again joined the investigation alongwith IO SI Sanjay Neolia and other team members. A raid was conducted at room no. 206, Raj Kamal Hotel, Civil Line Railway Station Road, Bareilly from where accused Mohd. Abdul Rahim Sheikh was served one original notice U/s 50 NDPS Act by the second IO. From the cursory search of accused, no contraband was recovered. Accused was arrested on 15.05.2016. Statement of Sh. Pradeep, Manager of Raj Kamal Hotel was also recorded by the second IO. Thereafter, they came back to Delhi. The arrest memo of accused Mohd. Abdul Rahim Sheikh is Ex. PW-1/R. The personal search of accused was also got conducted by the IO in presence of this witness vide memo Ex. PW-1/S. Disclosure statement of accused Mohd. Abdul Rahim Sheikh was also recorded by the IO in presence of this witness vide memo Ex. PW-1/T. This witness correctly identified all the three accused persons in the Court. In his testimony MHC(M) has produced three original notices U/s 50 NDPS Act issued in the names of all the three accused persons, he correctly identified the same recovered from the personal search of the accused persons and same were exhibited as Ex.PW1/P-1 to Ex.PW1/P-3.
DLSH010047242016 Page 10 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act MHCM further produced one original notice under section 50 of the NDPS Act, one black colour wallet containing Rs.500/-, Aadhar card and Voter ID Card which were recovered from personal search of accused Salim. Same was shown to the witness. Witness correctly identifies the same being recovered from the personal search of the accused and same are Ex. PW-1/P-4 (Colly).
MHCM further produced one original notice under section 50 of the NDPS Act, one black colour wallet containing Rs.650/-, PAN card which were recovered from personal search of accused Islam. Same was shown to the witness. Witness correctly identifies the same being recovered from the personal search of the accused and same are Ex. PW-1/P-5 (Colly).
MHCM further produced one original notice under section 50 of the NDPS Act, one black colour wallet containing Rs.400/-, Voter ID Card which were recovered from personal search of accused Mohd. Abdul Rahim Sheikh. Same was shown to the witness. Witness correctly identifies the same being recovered from the personal search of the accused and same are Ex. PW- 1/P-6 (Colly).
MHC(M) further produced one white colour pullanda having mark A and case particulars of the present case sealed with the seal of FSL. Seals were duly intact. The seals were broken and the pullanda was opened and found containing the contraband i.e. heroin. Same was shown to the witness. After seeing the same, the witness states that it was the sample which was sent to FSL. Sample is Ex. PW-1/P-7.
MHC(M) further produced one white colour pullanda having mark DLSH010047242016 Page 11 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act B and case particulars of the present case sealed with the seal of 5APS NB DELHI and RSS. Seals were duly intact. The seals were broken and the pullanda was opened and found containing the contraband i.e. heroin. Same was shown to the witness. After seeing the same, the witness states that it was the sample no.2. Sample is Ex. PW-1/P-8.
MHC(M) produced another white colour pullanda having Mark-C and case particulars of the present case sealed with the seal of 5 APS NB DELHI and RSS. Seals were duly intact. The seals were broken and the pullanda was opened and found containing the contraband i.e. heroin. Same was shown to the witness. After seeing the same, the witness states that it was the same contraband which was recovered from the possession of accused persons. The contraband is Ex. PW-1/P-9.
During his cross-examination on behalf of accused persons, it is admitted by him that he had not given any written notice to the public persons and had not noted down their names and addresses. It is denied by him that he had taken refusal of the accused persons on the copy of the notice U/s 50 NDPS Act forcibly. It is stated by him that no bus ticket was recovered from the personal search of accused persons namely Salim and Mohd. Islam. It is denied by him that he has falsely implicated the accused persons.
6. PW-2 ASI Rajender deposed that on 13.05.2016, he was posted at P.S. Crime Branch as HC and was working as Duty Officer from 4:00 pm to 12:00 midnight. At about 9:00 pm Ct. Sunny brought the rukka sent by SI Rajni Kant, contents of which were dictated by this witness to the Computer Operator DLSH010047242016 Page 12 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act and the FIR was registered vide FIR No. 71/2016 and computerized copy of FIR was obtained. This witness had handed over the copy of FIR and the original rukka to Ct. Sunny to hand over to the IO SI Sanjay Neolia as per the direction of senior officer. The copy of FIR is Ex. PW-2/A (OSR). This witness had made endorsement on the rukka and the same is Ex. PW-2/B. In this regard, the certificate U/s 65B of the Evidence Act is Ex. PW-2/C. Copy of GD No. 13 regarding registration of FIR is Ex. PW-2/D. Copy of GD No. 15 regarding departure of Ct. Sunny is Ex. PW-2/E.
7. PW-3 HC Shani deposed on the same lines as PW-1. It is further stated by him that SI Rajni Kant prepared the rukka which is already Ex. PW1/I and handed over the original rukka, three pulandas, carbon copy of seizure memo to this witness with the direction to hand over the rukka to DO for registration of FIR and case property, carbon copy of seizure memo and FSL form to the SHO for compliance U/s 55 NDPS Act.
Thereafter, at about 8:00 pm, he went to PS crime branch, Malviya Nagar by the car which was used during the raid. At about 9:00 pm, he reached at PS Crime Branch Malviya Nagar. The tehrir was handed to the duty officer and the case property along with carbon copy of seizure memo and FSL form to the SHO/ Inspector R. Shriniwasan. SHO/ Inspector R. Shriniwasan checked the pullandas, carbon copy of seizure memo and FSL form and put his counterseal of RSS on all of them.
Thereafter, SHO/ Inspector R. Shrinivwasan called the MHC(M) HC Jag Narayan along with register no.19 in his room and handed over the DLSH010047242016 Page 13 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act sealed pullandas, carbon copy of seizure memo and FSL form to him. The entry was made in the register no.19 and the same was signed by the SHO/ Inspector R. Shriniwasan. Thereafter at about 9:30 pm DD no.14 was lodged in the roznamcha by the SHO / Inspector R. Shriniwasan for compliance U/s 55 NDPS Act. At around 10:20 pm the duty officer handed over to him the copy of present FIR and original tehrir. After that he left the PS Crime Branch, Malviya Nagar for narcotic cell and reached there at about 11:05 pm. The copy of FIR and original tehrir was handed over to SI Sanjay Neolia. He was instructed to remain in the office by SI Sanjay Neolia and at about 11:15 pm SI Sanjay Neolia went to the spot in the same car.
Thereafter at around 3:00 am SI Sanjay Neolia along with HC Ismail and SI Rajni Kant along with the accused persons came in the office and both the accused persons were produced before Inspector Akash Rawat. Thereafter SI Sanjay Neolia left for the PS Crime Branch Malviya Nagar and returned back in the office at around 6:00 am and statement of this witness was recorded by him between 8:00 am - 9:30 am in the narcotic cell.
At this stage the original notices U/s 50 NDPS Act pertaining to accused Salim and Mohd Islam which were attached in the judicial file were shown to the witness. After seeing them he correctly identified them as the same which were served upon the accused persons.
This witness was also duly cross-examined on behalf of accused persons.
8. PW-4 Inspector R. Srinivasan deposed that on 13.05.2016 he was posted as SHO P.S. Crime Branch, Malviya Nagar and was present in the office.
DLSH010047242016 Page 14 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act On that day, at around 9:05 pm Ct. Shani from Narcotic Cell Crime Branch came in his office alongwith three sealed pullanda parcels Marks A, B, C; FSL Form and carbon copy of the seizure memo. He handed over to this witness the said three pullandas, FSL Form sealed with the seal of '5A PS NB DELHI' and the carbon copy of the seizure memo. This witness put down the FIR number on the said three pullandas, FSL Form and carbon copy of the seizure memo after obtaining the same from the Duty Officer and this witness also put his initials/ signatures on them and they were counter sealed with the seal of RSS. Thereafter, this witness called the MHC(M) HC Jag Narayan in his office alongwith register no. 19 and handed over to him (MHC(M)) the above- mentioned three pullandas, FSL Form and carbon copy of the seizure memo. Regarding this entry was made in the register no. 19 by MHC(M) and this witness also put his signatures/ initials on the entry. After that at about 9:30 pm, this witness made DD Entry No. 14 for compliance U/s 55 NDPS Act and Ct. Shani was freed. After that between 5:00-5:15 am, IO SI Sanjay Neolia came in office of this witness and recorded his statement on 14.05.2016.
This witness has produced the original DD Register of P.S. Crime Branch of the year 2016. Copy of DD No. 14 is Ex. PW-4/A (OSR).
9. PW-5 retired SI Jag Narain deposed that on 13.05.2016, he was working as MHC(M) at P.S. Crime Branch. On that day, at about 9:20 pm SHO/ Inspector R. Srinivasan called this witness in his office and handed over to this witness three sealed parcels Marked A, B and C; FSL Form and carbon copy of seizure memo on which the SHO has already put the FIR Number and his signatures. The pullandas were already sealed with the seal of RSS and 5A PS DLSH010047242016 Page 15 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act NB DELHI. This witness made entry in Register No.19 at serial no. 2370. Same is Ex. PW-5/A (OSR). Inspector R. Srinivasan also countersigned the entry in Register No. 19. Inspector R. Srinivasan also made DD No. 14 regarding depositing of case property.
It is stated by him that on the next day morning SI Sanjay Neolia deposited personal search articles of the accused persons namely Salim and Mohd. Islam @ Munna in the maalkhana. This witness made entry vide serial no. 2371 in this regard in Register No. 19 and the copy of the same is Ex. PW- 5/B (OSR).
It is stated by him that on 16.05.2016, SI Sanjay Neolia deposited one black colour pitthu bag alongwith copy of seizure memo and personal search articles of accused Mohd. Abdur Rahim Sheikh at the maalkhana. This witness made entry vide serial no. 2375 in this regard in Register No.19 and the copy of the same is Ex. PW-5/C (OSR). On 16.05.2016 on the directions of Inspector R. Srinivasan, SHO P.S. Crime Branch, this witness handed over one sealed parcel Mark-A alongwith FSL Form to Ct. Nityanand to be deposited at FSL vide RC No. 177/21/16. After depositing the same, Ct. Nityanand came back and handed over acknowledgment of FSL to this witness. The copy of RC No. 177/21/16 is Ex. PW-5/D and acknowledgment of FSL is Ex. PW-5/E. It is stated by him that till the time the case property was in his possession, it was not been tampered with.
10. PW-6 SI Mohd. Ismail deposed on the same lines as PW-1 and PW-3. He also exhibited carbon copy of notice U/s 50 NDPS Act as Ex. PW-
DLSH010047242016 Page 16 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 6/A. It is stated by him one black colour pitthu bag was recovered from the possession of accused Mohd. Abdur Rahim Sheikh which was seized vide seizure memo Ex. PW-6/B. It is further stated by him that Pradeep Goswami handed over the copy of hotel register regarding stay of accused and copy of ID proof of the accused, were taken into possession by SI Sanjay Neolia vide Ex. PW-6/C. He correctly identified the accused Mohd. Abdur Rahim Sheikh in the court.
This witness was also duly cross-examined on behalf of accused persons. During his cross-examination on behalf of accused persons, it is stated by him that he has no knowledge if CCTV cameras were installed outside the exit gate of ISBT, Anand Vihar.
11. PW-7 Sh. Pradeep Goswami deposed that in the year 2016 he was working as Manager at Raj Kamal Hotel, Civil Lines, Bareilly, U.P. On 15.05.2016, Delhi Police Team alongwith accused Salim came to their hotel and told that supplier of heroin Rahim is staying in their hotel in room no. 206 for the last 3-4 days. This witness checked the register and vide entry no. 876 dated 10.05.2016 entry of stay of Rahim in room no. 206 was found. With help of this witness Police Team opened room no. 206 where the customer Mohd. Abdur Rahim Sheikh was found present. Police handed over one notice to him for the purpose of his search which was read over to him. Accused Mohd. Abdur Rahim Sheikh refused to get himself searched in the presence of any Gazetted Officer or Magistrate. Police wrote his refusal on the carbon copy of notice which was signed by this witness. The carbon copy of notice is already Ex. PW-
DLSH010047242016 Page 17 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 6/A bearing carbon impression of signature of this witness at Point-C and his signature below the refusal at Point-C1. Search of accused and search of his room was taken but no contraband was found. Memo in this regard is Ex. PW- 7/A. However, one black colour pitthu bag was recovered containing some articles which were taken into possession by the police vide memo already Ex. PW-6/B. Accused was arrested vide arrest memo already Ex. PW-1/R and was personally searched vide personal search memo already Ex. PW-1/S. His disclosure statement is already Ex. PW-1/T. The original notice U/s 50 of the NDPS Act recovered from search of accused is already Ex. PW-1/P3.
This witness handed over copy of relevant entry of Hotel Register to the police regarding stay of accused and copy of his ID proof. The copy of entry of register is Ex. PW-7/B (OSR) and copy of his ID proof is Ex. PW-7/C and the same were taken into possession vide seizure memo already Ex. PW- 6/C. This witness was also duly cross-examined on behalf of accused persons.
12. PW-8 Ct. Amit deposed that he is posted as Assistant to Reader to ACP, ANTF Crime Branch earlier known as ACP/ N&CP since 2021. He has brought original diary register of the year 2016 of ACP office N&CP Delhi alongwith copy of DD No.16 dated 13.05.2016, original report U/s 57 of the NDPS Act dated 14.05.2016 prepared by SI Rajni Kant Sharma regarding seizure of heroin from accused persons namely Salim and Mohd. Islam @ DLSH010047242016 Page 18 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Munna, report U/s 57 of the NDPS Act dated 14.05.2016 prepared by SI Sanjay Neolia regarding arrest of accused persons namely Salim & Mohd. Islam @ Munna and report U/s 57 of the NDPS Act dated 16.05.2016 prepared by SI Sanjay Neolia regarding arrest of accused Mohd. Abdur Rahim Sheikh. The original reports U/s 57 of the NDPS Act and copy of DD No.16 were taken on record.
On 13.05.2016, copy of DD No.16 dated 13.05.2016 was received in the office of ACP N&CP vide diary no. 1125 and the DD is Ex. PW-8/A. Original report U/s 57 of the NDPS Act dated 14.05.2016 prepared by SI Rajni Kant Sharma regarding seizure of heroin from accused Salim and Mohd. Islam @ Munna was received in the office of ACP N&CP vide diary no. 1141 and same is Ex. PW-8/B. Original report U/s 57 of the NDPS Act dated 14.05.2016 prepared by SI Sanjay Neolia regarding arrest of accused Salim and Mohd. Islam @ Munna was received in the office of ACP N&CP vide diary no. 1142 and same is Ex. PW-8/C. Original report U/s 57 of the NDPS Act dated 16.05.2016 prepared by SI Sanjay Neolia regarding arrest of accused Mohd. Abdur Rahim Sheikh was received in the office of ACP N&CP vide diary no. 1143 and same is Ex. PW-8/D. Photocopy of relevant entry no. 1125 of diary register is Ex. PW- 8/E (OSR). Photocopies of relevant entries no. 1141, 1142 and 1143 of diary register are Ex. PW-8/F (Colly) (OSR).
During his cross-examination on behalf of accused persons, it is DLSH010047242016 Page 19 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act admitted by him that in the entry in the diary of correspondence, time of receipt of reports are not mentioned.
13. PW-9 retired ACP Ranbir Singh deposed that on 13.05.2016 he was posted as ACP, N&CP. On that day, Inspector Akash Rawat informed this witness regarding secret information received by SI Rajni Kant. This witness directed to conduct immediate raid as per law.
On the same day, copy of DD No.16 regarding secret information was received in the office of this witness and the same was placed before him by his Reader and it was seen by him. The copy of DD No.16 is already Ex. PW-8/A. On 14.05.2016 report U/s 57 of the NDPS Act prepared by SI Rajni Kant Sharma regarding seizure of heroin from accused persons namely Salim and Mohd. Islam @ Munna was received in his office and the same was placed before him by his Reader and it was seen by him. The report U/s 57 of the NDPS Act is already Ex. PW-8/B. On 14.05.2016 report U/s 57 of the NDPS Act prepared by SI Sanjay Neolia regarding arrest of accused Salim and Mohd. Islam @ Munna was received in the office of this witness and the same was placed before him by his Reader and it was seen by him. The report U/s 57 of the NDPS Act is already Ex. PW-8/C. On 16.05.2016 report U/s 57 of the NDPS Act prepared by SI Sanjay Neolia regarding arrest of accused Mohd. Abdur Rahim Sheikh was received in the office of this witness and the same was placed before him by his Reader and it was seen by him. The report U/s 57 of the NDPS Act is already DLSH010047242016 Page 20 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Ex. PW-8/D. This witness was also duly cross-examined on behalf of accused persons.
14. PW-10 ASI Nityanand deposed that on 16.05.2016, he was posted at P.S. Crime Branch as Constable. On that day, on the directions of IO, this witness obtained one sealed parcel Mark-A alongwith FSL Form and sample seals from MHC(M) vide RC No.177/21/16. This witness deposited the parcel at FSL Rohini Delhi, came back to Police Station and deposited the receipt of FSL with MHC(M). Till the time the case property was in possession of this witness, it has not been tampered with. The copy of RC is already Ex. PW-5/D. Receipt of FSL is already Ex. PW-5/E. This witness was also duly cross-examined on behalf of accused persons.
15. PW-11 Sh. Santosh Tripathy, Assistant Director Chemistry, FSL Rohini, Delhi deposed that he is working at FSL Rohini since 2010. On 16.05.2016, he was posted as Senior Scientific Officer (Chemistry) at FSL Rohini. On that day one sealed parcel Mark-A sealed with the seal of P.S/N.B 5A DELHI and seal of RSS in FIR No. 71/2016 dated 13.05.2016, U/s 21/29 NDPS Act, P.S. Crime Branch alongwith specimen seals; forwarding letter; FSL Form; copy of FIR; copy of seizure memo etc. were received in their office from SHO, P.S. Crime Branch, vide letter reference no.530/SHO/Crime Branch dated 16.05.2016. Same were marked to division of this witness for chemical DLSH010047242016 Page 21 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act examination. The seals were intact and were tallying with specimen seals.
On opening the parcel Mark-A, it was found containing brownish coloured powdery material, weighing approx. 5.41 gms with polythene and it was mark as Ex. A. The samples were analysed from 20.06.2016 to 12.07.2016. After on chemical, TLC & GC-MS examination of the substance i.e. Ex. A, the same were found to contain 36.9% diacetylmorphine and 6- monoacetylemorphine.
After analysis, the remnants of the exhibit were sealed in a parcel with the seal of STY FSL DELHI and specimen seal was affixed on the report.
This witness prepared the detailed report bearing no. FSL 2016/C- 3661 dated 12.07.2016 which is Ex. PW-11/A (running into two pages) bearing his signature at Points A and B. Due to typographical error instead of brown coloured powdery material, white colour powdery material was printed against Ex. A in his report Ex. PW-11/A. He submitted his report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
This witness was also duly cross-examined on behalf of accused persons.
16. PW-12 Inspector (now ACP) Akash Rawat deposed that on 13.05.2016, he was posted as Inspector Narcotic Cell, Narcotic Office, Kotwali Daryaganj, Delhi. At about 2:15 pm, SI Rajni Kant produced one secret informer before this witness in his office. This witness made enquiries from secret informer. Secret informer informed that two persons namely Salim and DLSH010047242016 Page 22 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Mohd. Islam @ Munna who are residents of Bareilly, U.P. and who used to supply heroin in Delhi after bringing the same from Bareilly, will come at exit gate, ISBT Anand Vihar, Delhi between 3:45 pm to 4:15 pm alongwith huge quantity of heroin to supply somebody. After satisfying himself with the information, this witness telephonically informed Sh. Ranbir Singh Dahiya, ACP/N&CP about the secret information who directed this witness to conduct immediate raid and take legal action. SI Rajni Kant lodged DD No.16 regarding the secret information at about 2:30 pm and placed the copy of the same before this witness in his office. This witness forwarded the same to ACP/N&CP. Thereafter, on directions of this witness SI Rajni Kant constituted a raiding team comprising of himself, HC Mohd. Ismail and Ct. Shani and left their office in a private car no. DL 8 CP 3419 which was blue colour Wagon R vide DD No.17 at about 2:45 pm alongwith secret informer.
On 14.05.2016, at about 3:00 am, SI Sanjay Neolia produced accused persons namely Salim and Mohd. Islam @ Munna in the office of this witness and apprised him about the facts. This witness was satisfied of the grounds of their arrest.
Copy of DD No.16 is already Ex. PW-8/A. On 14.05.2016 SI Rajni Kant placed before this witness report U/s 57 of the NDPS Act regarding seizure of heroin from accused persons namely Salim and Mohd. Islam @ Munna and this witness forwarded the same to the ACP/N&CP which is already Ex. PW-8/B. On 14.05.2016 SI Sanjay Neolia placed before this witness report U/s 57 of the NDPS Act regarding arrest of accused persons namely Salim and DLSH010047242016 Page 23 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Mohd. Islam @ Munna and this witness forwarded the same to the ACP/N&CP which is already Ex. PW-8/C. On 16.05.2016 SI Sanjay Neolia produced accused Mohd. Abdur Rahim Sheikh before this witness in his office and apprised him regarding the facts. He was satisfied with the grounds of his arrest. On the same day, SI Sanjay Neolia placed before this witness report U/s 57 of the NDPS Act regarding arrest of accused Mohd. Abdur Rahim Sheikh and this witness forwarded the same to the ACP/N&CP which is already Ex. PW-8/D. This witness correctly identified all the three accused persons in the Court.
This witness was also duly cross-examined on behalf of accused persons.
17. PW-13 SI (now Inspector) Sanjay Neolia deposed that on 13.05.2016, he was posted at Narcotic Cell Crime Branch, Kotwali Delhi. At around 11:00 pm, Ct. Shani came to him and handed over copy of FIR and original rukka to him. After leaving Ct. Shani at the office, he left vide DD No.29 Ex. PW-13/A and reached at the spot i.e right side exit gate of Anand Vihar ISBT Delhi in a private car at about 11.50 pm where SI Rajni Kant and HC Ismail met him along with accused Salim and Mohd. Islam. SI Rajni Kant handed over the custody of accused persons to him along with the documents prepared by him. He mentioned FIR number on the documents. Thereafter he prepared site plan already Ex.PW1/J. He recorded statement of HC Mohd. Ismail.
DLSH010047242016 Page 24 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act He arrested accused Salim and Mohd. Islam vide arrest memos already Ex. PW-1/K and Ex. PW-1/L and personally searched them vide personal search memos already Ex. PW-1/M and Ex. PW-1/N. Apart from other articles one original notice U/s 50 NDPS Act each was recovered from the respective personal search of accused persons. He recorded their disclosure statements Ex. PW-1/O and Ex. PW-1/P. He brought both the accused persons to office of Narcotic Cell and produced them before Inspector Aakash Rawat who made enquiries from the accused persons and found their arrest justified.
Thereafter he left office of Narcotic Cell after leaving both the accused persons at the office, reached at PS Crime Branch where he deposited personal search articles of accused persons with MHC(M) and recorded statements of SHO and MHC(M), obtained copy of DD No.14 regarding proceedings U/s 55 NDPS Act. Thereafter he came back to his office. He prepared report U/s 57 NDPS Act regarding arrest of accused Salim and Mohd Islam and submitted the same for onward transmission to the senior officers. The report U/s 57 NDPS Act is Ex. PW-8/C. He produced accused Salim and Mohd. Islam before the court and obtained three days PC remand of accused Salim and accused Mohd. Islam was sent to J/C. During PC Remand he again interrogated accused Salim who disclosed that one Rahim has supplied the heroin to him and Mohd. Islam at Bareilly Railway Station and that the said Rahim was staying at Raj Kamal Hotel, Station Road Bareilly. He recorded supplementary disclosure statement of accused Salim which is Ex. PW-13/B. DLSH010047242016 Page 25 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act After informing Inspector Aakash Rawat, he along with SI Rajni Kant, HC Mohd. Ismail, HC Ravinder, HC Dharmender, Ct. Shani and accused Salim left for Bareilly in a private car hired vide DD No.19 Ex. PW-13/C. After reaching Bareilly, the went to Hotel Raj Kamal where manager of the hotel Pradeep Goswami met them. He introduced himself to him. As per information given by Salim, he told the manager that one person namely Rahim staying in Room no. 206 of the hotel for last 3-4 days and that Salim and Mohd. Islam were accompanying him when he first came to the hotel. Manager identified accused Salim as one of the said person who accompanied Rahim. He checked the register of the Hotel, as per which there was an entry of 10.05.2016 regarding stay of Rahim in room no.206.
Thereafter they all went to room no.206 and door of the same was got open. Accused Abdur Rahim Sheikh was found present in the room. He introduced himself to the accused and told him that they have the information that he used to supply heroin after bringing the same from West Bengal and that they have apprehension that he may be in possession of more contraband and for this purpose, they have to take his search. He apprised him about his legal rights by saying that if he wants, he can be searched in the presence of a Gazetted officer or the Magistrate or he can be taken to a gazetted officer or the magistrate and also explained meaning of gazetted officer and magistrate in vernacular to the accused and that if he wants, he can take their search prior to his search. However accused refused to get himself searched in the presence of any Gazetted officer or the Magistrate as well as to take search of the raiding team members. He prepared notice under section 50 of the NDPS Act in DLSH010047242016 Page 26 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act duplicate by putting carbon between two white paper and handed over the original notice U/s 50 NDPS Act to the accused. The accused told that he does not want to get himself searched in presence of a gazetted officer or a magistrate and he also does not want to take search of the police team. He wrote his refusal on the carbon copy of notice U/s 50 NDPS Act and signed the same. The carbon copy of notice U/s 50 NDPS Act already Ex. PW-6/A, refusal of accused from point X to X1. Thereafter he took search of accused but no contraband was found from his possession. He also took search of room of the accused but no contraband was recovered and only one bag containing clothes of accused was recovered. He prepared nil recovery memo Ex. PW-7/A. He also took into possession the bag of accused vide seizure-memo already Ex. PW-6/B. He obtained the copy of guest register of the hotel regarding stay of accused Ex. PW-7/B and copy of ID proof of the accused Ex. PW-7/C and took into possession the same vide seizure-memo already Ex. PW-6/C. He arrested the accused Abdur Rahim Shaikh vide arrest memo already Ex. PW-1/R and personally searched him vide personal search memo already Ex. PW-1/S. He recorded disclosure statement already Ex. PW-1/T. Thereafter they brought back accused Abdur Rahim Shaikh and Salim to their office at Delhi where he made DD No.22 Ex. PW-13/D. He produced the accused Abdur Rahim Shaikh before Inspector Aakash Rawat. He prepared report U/s 57 NDPS Act regarding arrest of accused Abdur Rahim Shaikh Ex. PW-8/D and submitted the same for onward transmission to senior officers. During investigation he sent the exhibits to FSL for analysis. After completion of investigation, he submitted the charge-sheet for trial. He correctly DLSH010047242016 Page 27 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act identified accused Salim in the Court.
During his cross-examination on behalf of accused persons, it is stated by him that he left his office on 13.05.2016 at around 11:15 pm. It is stated by him that he left the office alone in a private car bearing no. DL8 CP 5419 which is used by SI Rajni Kant. It is stated by him that he had not noticed any CCTV camera installed on the gate of ISBT, Anand Vihar. It is stated by him that bus ticket was not recovered from the personal search of accused persons namely Salim and Mohd. Islam.
18. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 08.05.2025.
STATEMENTS OF ACCUSED PERSONS
19. Statement of accused Salim was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that he was picked from Ghaziabad where he used to work as a labour.
He chose to lead defense evidence.
20. Statement of accused Mohd. Islam @ Munna was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that he was picked by the police from his residence at District Bareilly, U.P. It is again stated that he was picked from his house and falsely implicated in the present case. He was compelled to put DLSH010047242016 Page 28 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act signatures on various documents without knowing their nature. It is stated by him that he does the work of embroidery in Bareilly. He has some dispute with a few persons who might have falsely implicated him to take revenge.
He chose not to lead any defense evidence.
21. Statement of accused Mohd. Abdur Rahim Sheikh was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that he was picked from his house and falsely implicated in the present case. It is stated by him that he had no connection with other two accused persons.
He chose not to lead any defense evidence.
DEFENSE EVIDENCE
22. In order to substantiate his defense, accused Salim has examined himself, Sh. Akbar and Sh. Kamal Chauhan as defence witness.
23. DW-1 Salim (i.e. accused himself) deposed that on 12.05.2016 he alongwith one Akbar left his village in the night and reached at Kaushambi Bus Stand at about 7:00-7:30 am. Thereafter, they took a TSR and went to Loni, Ghaziabad where he used to work as a labour. At about 2:30-2:45 pm 4-5 police officials came and took him alongwith them on the pretext of some inquiry. He was carrying his Nokia mobile phone at that time bearing no. 9639494146. It is stated that he was kept in P.S. Daryaganj for whole night and was produced before the Court on 13.05.2016.
During his cross-examination by Ld. Addl. PP for the State, he DLSH010047242016 Page 29 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act could not tell as to where he was working as labour in Loni, Ghaziabad. It is stated by him that he went there for the first time after coming from his village. It is stated by him that he went to Loni as there were some known to contractor. It is stated by him that police officials met him for the first time and were not known prior to date of his apprehension. It is stated by him that he has no enmity with the said police officials. He could not tell how the police officials located him at Loni, Ghaziabad.
24. DW-2 Sh. Akbar deposed that on 12.05.2016 he alongwith accused Salim came to Kaushambi, Ghaziabad at about 2:00-2:30 am from Bareilly. Thereafter, they went to Loni, Ghaziabad at about 2:00-2:30 pm, 4-5 police officials came there and apprehended accused Salim.
During his cross-examination by Ld. Addl. PP for the State, it is stated by him that he became acquainted with accused Salim when he was working as a labour in Bareilly. He could not tell the place where he alongwith accused Salim went for doing labour work at Loni, Ghaziabad as that was their first day. It is stated by him that he did not inform family members of accused Salim after he was apprehended.
25. DW-3 Sh. Kamal Chauhan, Junior Engineer in DTIDC, posted at ISBT, Kashmiri Gate, Delhi brought location chart of CCTV cameras installed at ISBT, Anand Vihar. In the chart, fixed cameras are shown in the green colour and PTZ cameras were shown in red colour. It is stated that the cameras were installed in the year 2007 and control of the same was handed over to Delhi DLSH010047242016 Page 30 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Police. He exhibited copy of location chart as Ex. DW-3/A and copy of his ID Card as Ex. DW-3/B.
26. No other witness was examined by accused Salim in his defense. Thereafter, D.E. was closed vide order dated 18.08.2025.
FINAL ARGUMENTS
27. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsels for the accused persons and perused the record carefully.
28. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act have been complied with in the present matter at the time of recovery and thereafter. It is contended that accused Salim was found in possession of 200 gms of heroin. During interrogation, accused persons namely Salim and Mohd. Islam @ Munna had disclosed that source of heroin was accused Mohd. Abdur Rahim Sheikh, R/o Malda, West Bengal. The above- mentioned 200 gms heroin was also handed over to accused Salim by accused Mohd. Abdur Rahim Sheikh and it was to be supplied to one Qamil near Anand Vihar in Delhi. There is nothing on record to suggest that police officials had any enmity with the accused persons. Thus, the offence U/s 21(b) NDPS Act against accused Salim and the offence U/s 29 read with Section 21(b) NDPS Act against all the accused persons are proved beyond reasonable doubt.
29. Per contra, it is contended on behalf of the accused persons that accused persons have been falsely implicated in the present case. It is contended DLSH010047242016 Page 31 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act that there is no evidence, except disclosure statement against accused Mohd. Abdur Rahim Sheikh. It is further contended that no contraband was recovered from accused Mohd. Islam @ Munna and there is nothing on record to suggest that he had any knowledge qua alleged contraband recovered from accused Salim. It is argued on behalf of accused Salim that he has been falsely implicated in the present case, that is why no public witness was joined in the investigation, no CCTV footage of the place of incident has been procured. It is further contended that police did not find any traveling ticket from possession of accused Salim to establish his journey to the alleged spot of recovery. It is contended that there is no videography or photography of the recovery proceedings. It is contended that requirements of Section 52A NDPS Act are not complied with.
Legal Requirement to prove the Charges :-
30. 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 license 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:DLSH010047242016 Page 32 of 71 SC 957/2016
STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
31. 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 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)
32. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
33. The term "narcotic drugs" is defined in Section 2(xiv) as under :-
DLSH010047242016 Page 33 of 71 SC 957/2016STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
34. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
35. 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)
36. "Opium Derivatives" besides other things also means heroin. It is defined in Section 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;
(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 DLSH010047242016 Page 34 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
37. 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."
38. 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 05 grams and commercial quantity is 250 gms.
39. 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 Salim alongwith accused Mohd. Islam @ Munna were in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.DLSH010047242016 Page 35 of 71 SC 957/2016 FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act (3) That the contraband was opium derivative /heroin. (4) That the quantity of the contraband was intermediate for Section 21(b) of NDPS Act.
(5) That accused Mohd. Abdur Rahim Sheikh had supplied the contraband to accused persons namely Salim and Mohd. Islam @ Munna.
40. 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. 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.
41. 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 DLSH010047242016 Page 36 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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 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 DLSH010047242016 Page 37 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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 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."
42. 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 DLSH010047242016 Page 38 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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
43. 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 :-
Discussion on the point of compliance of Section 42 of NDPS Act
44. 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 consta- ble) 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 per- sonal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in re- spect 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 con-
DLSH010047242016 Page 39 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act cealed 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 en- try;
(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 be- lieve 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 of- fence punishable under this Act or furnish evidence of holding any illegally ac- quired 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 rea- son 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 conceal- ment 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 sun- rise 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 sev-
enty-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
45. With respect to the compliance of Section 42 NDPS Act, PW-1 Inspector Rajni Kant (then SI) has stated that the secret informer came to their office at 2:00 pm on 13.05.2016 and informed that two persons namely Salim and Islam would come at the exit gate of ISBT, Anand Vihar to deliver heroin between 3:45-4:15 pm. PW-1 Inspector Rajni Kant shared the information with PW-12 Inspector Akash Rawat, who further apprised the said information to PW-9 ACP Ranbir Singh, who directed PW-12 Inspector Akash Rawat to take appropriate action as per law. Thereafter, DD No.16 was lodged qua said secret DLSH010047242016 Page 40 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act information for doing proceedings under NDPS Act. The said DD was placed before Inspector Akash Rawat and also forwarded to PW-9 ACP Ranbir Singh. Carbon copy of the same is Ex. PW-1/A. Original of the same received in the office of ACP is Ex. PW-8/A bearing stamp having diary no. 1125 dated 13.05.2016. Copy of correspondence register having the said entry is also exhibited on record as Ex. PW-8/E. A raiding team was also constituted by PW-1 Inspector Rajni Kant (then SI) including himself, HC Islam, Ct. Shani Kumar and they left the office vide DD No. 17 dated 13.05.2016.
PW-12 Inspector Akash Rawat deposed on the same lines as PW-1 qua receipt of secret information, production of secret informer before him as well as the fact that he informed ACP qua same who directed him to conduct the immediate raid. PW-9 ACP Ranbir Singh also stated that on 13.05.2016 he received information from PW-12 Inspector Akash Rawat qua secret information being received by PW-1 Inspector Rajni Kant (then SI). It is also stated by him that he directed PW-12 Inspector Akash Rawat to conduct immediate raid. It is further stated by him that a copy of DD No. 16 regarding secret information was received in his office and was placed before him.
46. DD No. 16 (Ex. PW-1/A) dated 13.05.2016 corroborates the testimony of PW-1 as in the said DD Entry it is categorically mentioned that a secret informer arrived in their office at about 2:00 pm and conveyed to PW-1 Inspector Rajni Kant (then SI) the secret information as stated above.
47. As per Section 42 of the NDPS Act, the Central Government and DLSH010047242016 Page 41 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act State Government may empower any officer, superior in rank to a Peon, Sepoy or Constable to take action U/s 42 i.e. conduct search, seizure and arrest as per the said section without warrant or authorisation. Further, in a notification dated 14.11.1985 which is reproduced here under officials of Delhi Police superior in rank to a Constable were conferred power to take action U/s 42 of the NDPS Act:-
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 8th 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 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 DLSH010047242016 Page 42 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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.
48. 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, PW-1 Inspector Rajni Kant (then SI) was empowered to act U/s 42 of the NDPS Act.
49. In view of the above-stated circumstances, it can be held that provisions of Section 42 of NDPS Act qua recording of secret information and conducting search by empowered officer have been duly complied with in the present case, as per record.
Discussion on the point of compliance of Section 50 of NDPS Act
50. 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).DLSH010047242016 Page 43 of 71 SC 957/2016 FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act (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)
51. As per prosecution case, after apprehension of the accused persons namely Salim and Mohd. Islam @ Munna, they were served with mandatory notices under Section 50 of the NDPS Act and on their refusal to avail their legal rights, their search was carried out by PW-1 Inspector Rajni Kant (then SI), wherein from right side pocket of the pant worn by accused Salim a black colour polythene containing transparent polythene containing some mud colour substance was recovered.
In his statement recorded U/s 313 Cr.P.C., accused Salim has denied having been served with any such notice and claimed that he was lifted from Loni, Ghaziabad and falsely implicated in the present case.
52. Given the accused Salim's claim, it is necessary to determine whether a notice under Section 50 of the NDPS Act was served upon him prior to conducting his bodily search.
DLSH010047242016 Page 44 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
53. PW-1 in his deposition categorically stated that he prepared notice U/s 50 NDPS Act and handed over the same to the accused Salim. He also testified that he apprised accused Salim regarding his legal rights, as mentioned in the notice U/s 50 NDPS Act. Similarly, deposed by other members of the police party i.e. PW-3 HC Shani and PW-6 Mohd. Ismail. Their testimonies also found support from the testimony of PW-13 SI Sanjay Neolia (second IO) who has stated that in the personal search of accused Salim he found the original notice U/s 50 NDPS Act (carbon copy of the said notice is also on record exhibited as Ex. PW-1/C bearing signatures of accused at Point-X and Point-B). Original notice U/s 50 NDPS Act is on record and exhibited as Ex. PW-1/P-1.
It may be noted that there is no cross-examination of this witness as regards the notice given by him to the accused Salim and as regards the response of the accused Salim to the notice, which was recorded on the copy of the notice. The witness was only given some suggestions in his cross- examination which he denied. Furthermore, even in such suggestions, it is admitted by the accused Salim that signatures on the notice were his own, though taken forcibly.
54. Based on the testimonies of recovery witnesses, it has been established that the accused persons were duly served with notices U/s 50 of the NDPS Act before their bodily search was conducted and there was no violation of this mandatory provision as it is only on their refusal, their personal search was conducted by PW-1 Inspector Rajni Kant (then SI).
DLSH010047242016 Page 45 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
55. However, it is to be noted that though accused Mohd. Islam @ Munna was also present with accused Salim at the time of recovery of contraband, however no contraband was recovered from him. It is to be noted that the recovery of the contraband from the possession of separate accused persons should be considered separately as observed by Hon'ble High Court of Bombay in the case titled as Smt. Rashida Iqbal Khan Vs. State of Maharashtra, Criminal Application No.2177 of 2006. Apart from the fact that both the accused persons namely Salim and Mohd. Islam @ Munna were apprehended together, there is nothing on record to suggest that accused Mohd. Islam @ Munna was aware that accused Salim was carrying contraband. In such circumstances, there is nothing to establish the claim that accused Mohd. Islam @ Munna was in joint possession of the contraband recovered from accused Salim, further there is nothing to establish any criminal conspiracy between the two.
56. Section 55 of the NDPS Act was duly complied with in the present matter as the then SHO, P.S. Crime Branch, PW-4 Inspector R. Srinivasan has also put his seal 'RSS' on the FSL Form, samples and contraband allegedly recovered, before depositing the same in the maalkhana. He also made a DD entry qua same bearing no. 14 which is Ex. PW-4/A.
57. Section 57 of the NDPS Act which requires that :-
"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."DLSH010047242016 Page 46 of 71 SC 957/2016 FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
58. In the present matter, alleged recovery of contraband was effectuated by PW-1 Inspector Rajni Kant (then SI) and after recovery of the case property investigation of the present case was marked to PW-13 SI Sanjay Neolia (now Inspector) who arrested the accused persons. Both these police officials had sent reports U/s 57 NDPS Act to the ACP concerned. The report by SI Rajni Kant was sent vide diary no. 1141 dated 14.05.2016. The same is bearing signatures of Inspector Akash Rawat as well as signatures of ACP Ranbir Singh dated 14.05.2016. The original report is on record as Ex. PW-8/B. The relevant diary of correspondence is also on record showing entry of this document.
The reports by SI Sanjay Neolia were sent vide diary no. 1142 dated 14.05.2016 and diary no. 1143 dated 16.05.2016 (qua accused Mohd. Abdur Rahim Sheikh). The same are bearing signatures of Inspector Akash Rawat as well as signatures of ACP Ranbir Singh dated 14.05.2016 & 16.05.2016, respectively. Both the original reports are on record as Ex. PW-8/C and Ex. PW-8/D. The relevant diary of correspondence is also on record showing entry of this document as Ex. PW-8/F. Thus, the said reports have been duly proved on record. The reports were submitted to ACP concerned within 48 hours of recovery. Accordingly, in the opinion of the Court the provisions of Section 57 of the NDPS Act were duly complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of recovery of contraband
59. As per prosecution case, on 13.05.2016 on the basis of secret DLSH010047242016 Page 47 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act information, a raiding party was constituted and a trap was laid at the exit gate of ISBT, Anand Vihar where at about 3:50 pm, accused persons namely Salim and Mohd. Islam @ Munna were apprehended. On personal search of accused Salim a black colour polythene containing transparent polythene containing some mud colour substance was recovered from right side pocket of his pant. On checking with field testing kit, it was found to be heroin and the same was weighing 200 gms. It is also stated that public persons were asked to join investigation, but none agreed to join investigation and left without disclosing their names and addresses citing their personal excuses and no notice could be served upon them due to paucity of time.
60. Out of the recovered contraband, two samples of 05 grams each were taken out in transparent polythene and converted into cloth pullanda and sealed with the seal of '5A PS NB DELHI' by giving Mark-A and Mark-B and the remaining contraband was kept in the transparent plastic polythene and wrapped in the black plastic polythene and converted into pullanda with the help of white cloth and sealed with the seal of '5A PS NB DELHI' by giving Mark-C. The aforesaid articles were seized vide seizure memo Ex. PW-1/G, bearing signatures of the accused Salim. The seal was handed over after used by PW-1 Inspector Rajni Kant (then SI) to PW-6 HC Ismail and PW-1 also filled the FSL Form. PW-1 also prepared rukka and handed over the same alongwith the three sealed parcels, seizure memo and the FSL Form to PW-3 Ct. Shani with the directions to hand over the rukka to the DO and the remaining things to the SHO.
DLSH010047242016 Page 48 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
61. PW-1, PW-3 and PW-6 are the star witnesses of the prosecution as they had apprehended the accused persons namely Salim and Mohd. Islam @ Munna and had found contraband in possession of accused Salim.
Perusal of cross-examinations of these witnesses reveals that nothing material has come in the same so as to doubt their deposition as regards the alleged recovery. The witness withstood the rigors of cross-examination and corroborated material particulars regarding the recovery of contraband from the accused.
62. The testimonies of PW-1, PW-3 and PW-6 are corroborated by testimony of PW-13, as the said witnesses reached the spot upon receiving the FIR, where he found the accused persons namely Salim and Mohd. Islam @ Munna and PW-1, & PW-6 present.
PW-13 was also cross-examined, but there is nothing in his cross- examination, which may create a doubt as regards the recovery alleged to have been made from accused Salim.
It may be pointed out that a suggestion was given to PW-1 that accused Salim was lifted from Loni, Ghaziabad where he was working as a labour, which he denied. The said defence though taken during the cross- examination of PW-1 and other prosecution witnesses and also tried to be proved by leading defense evidence, remained 'not proved' as the accused Salim who examined himself as DW-1 did not tell the exact address where he was working in Loni, Ghaziabad. He did not even tell the name of owner of that DLSH010047242016 Page 49 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act property or the contractor.
63. From the testimony of the aforesaid witnesses, it stands proved that on 13.05.2016, a black colour polythene containing transparent polythene containing some mud colour substance was recovered from right side pocket of accused Salim's pant, which upon testing at the spot with the field-testing kit was positive for heroin, weighing in total 200 gms.
64. The accused persons neither in their statements U/s 313 Cr.P.C. nor in any of the suggestions given to the prosecution witnesses, claimed animosity or acquaintance with the police officials, hence there was no ground or reason for the police to falsely implicate them in the present case. Furthermore, till date the accused persons have not raised any protest against their alleged false implication which shows that they have taken this plea for the sake of plea and there is no substance in it. The truthfulness of the case of the prosecution is also established from the fact that no recovery is shown to be effectuated from accused Mohd. Islam, whose name was also reveled in the secret information. Had motive of the police party to falsely Implicate the accused persons they should have shown some recovery from accused Mohd. Islam as well.
65. In view of the aforesaid discussions, it is held that prosecution has successfully proved that the accused persons were apprehended by PW-1, PW-3 and PW-6 with the contraband as alleged.
DLSH010047242016 Page 50 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act Discussion on non-joining of the public witnesses
66. During course of arguments, Ld. Defense 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 credit worthy being interested witnesses.
67. 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 especially PW-1 that he made sincere efforts to join public witnesses, but none agreed.
68. In this regard, PW-1 deposed that while they were on the way he asked 4-5 public persons at Shantivan Red Light and 5-6 public persons at Entry Gate of ISBT, Anand Vihar to join the raiding team, but none agreed and left without disclosing their names and addresses and no notice could be served on them. Similarly, even after apprehension of the accused persons he asked 5-6 public persons to join investigation, but none agreed.
69. From the aforesaid deposition of the witness, it is clear that he made efforts, to join public witnesses, but none agreed. The deposition of this witness as regards repeated efforts made by him to join the public witnesses is corroborated by PW-3 and PW-6.
DLSH010047242016 Page 51 of 71 SC 957/2016 FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
70. Thus, the non-joining of independent witnesses despite efforts having been made in this regard, is not fatal to the prosecution case. In this regard, this Court is supported by the case law i.e. Ajmer Singh Vs. State of Haryana reported as 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."
71. Further, 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, AIRONLINE 2012 SC 728 decided on 19.10.2012, 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."
72. Furthermore, the police officials are considered to be equally DLSH010047242016 Page 52 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act competent and reliable witnesses and their testimony can be relied upon even without corroboration by an 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'.
73. It is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, 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, Hon'ble 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, 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."
74. 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 firstly it is clear that sufficient efforts were made by PW-1. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between the accused persons and the police officials has been pointed out. Therefore, even otherwise there is no reason to DLSH010047242016 Page 53 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act disbelieve the testimonies of police officials regarding non joining of public witnesses.
Whether recovered substance is heroin?
75. As stated earlier, 200 gms of mud colour substance was recovered from the accused Salim, out of which two samples of 05 grams each were drawn at the spot itself and sent to FSL with the seal of '5A PS NB DELHI' and counter seal of 'RSS'. The said substance was also tested at the spot and found to be positive for heroin, as deposed by PW-1. The expert analysis on the samples was carried out at FSL by Sh. Santosh Tripathy, Asstt. Director (Chemistry) FSL Rohini, Delhi examined as PW-11. As per the FSL result Ex. PW-11/A, one sealed parcel Mark-A bearing the seal of 'P.S./NB 5A DELHI' & 'RSS' was analyzed and was found containing brownish coloured powdery material, which upon examination, were found to contain 36.9% Diacetylmorphine and 6-Monoacetylmorphine.
76. There is nothing to doubt the FSL Result Ex. PW-11/A, which was prepared by Assistant Director (Chemistry) FSL, who is a Senior Officer at FSL, Rohini and has no reason or motive to give a false or manipulated report.
77. In view of the same, it is held that the accused Salim was found in possession of intermediate quantity of heroin/ smack.
Compliance under section 52A NDPS Act
78. Ld. Counsels for accused persons had submitted that as the DLSH010047242016 Page 54 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act sampling proceedings in the present case were not conducted by the Magistrate U/s 52A NDPS Act, hence the trial stands vitiated, and the accused persons are entitled to acquittal.
79. 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?
80. In Union of India Vs. Mohan Lal (2016 (3) SCC 379), 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 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 DLSH010047242016 Page 55 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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."
81. In Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) , 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 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 DLSH010047242016 Page 56 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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."
82. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif 2024 INSC 1045, 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.
(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 DLSH010047242016 Page 57 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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."
83. In a very recent judgment of Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No. 250/25, 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."
84. Hon'ble Apex Court discussed at length Mohan Lal (supra), Yusuf DLSH010047242016 Page 58 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act @ Asif (supra) 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.
30.Thus, from above it is clear that the procedure prescribed by the Standing DLSH010047242016 Page 59 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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 differences in the weight, colour or DLSH010047242016 Page 60 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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.
The Hon'ble Court finally summarized the law on the subject in DLSH010047242016 Page 61 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act para 50 as under :-
"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 DLSH010047242016 Page 62 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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 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)
85. 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 Bhart 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.
86. Moreover, as per FSL report Ex. PW-11/A, one parcel Mark-A was received at FSL and was examined by Sh. Santosh Tripathy, Asstt. Dirctor (Chemistry) FSL Rohini. Parcel Mark-A was found bearing two seals i.e. DLSH010047242016 Page 63 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 'P.S./NB 5A DELHI' and 'RSS'. Thus, as per the FSL result Ex. PW-11/A, the sample of the case property which was sealed at the spot with the seal of '5A PS NB DELHI' and was counter sealed by SHO Inspector R. Srinivasan with his seal of 'RSS', was received in the same condition with all the seals intact in the FSL on 16.05.2016 i.e. just 3 days after recovery.
87. It may be noted that the case property in original as primary evidence was produced during the testimony of PW-1 and opened in the Court. The sample Mark-A was found to be bearing the seal of FSL and sample Mark- B and the remaining contraband Mark-C were found bearing the seals of '5APS NB DELHI' and 'RSS'. The observation of the Court at the time of opening the case property during the testimony of PW-1 is relevant to establish that the seal of '5APS NB DELHI' and 'RSS' remained intact throughout the proceedings till the time the samples were analyzed by the FSL and the remaining contraband were opened in the Court.
88. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of '5APS NB DELHI' by PW-1 Inspector Rajni Kant (then SI) and was further sealed at the Police Station by PW-4 Inspector R. Srinivasan with the seal of 'RSS' was found intact by Sh. Santosh Tripathy, Asstt. Director (Chemistry) FSL on one sample Mark-A, which he analyzed in terms of report Ex. PW-11/A and the remaining pullandas/ parcels were found intact bearing the seals of '5APS NB DELHI' and 'RSS', when the same were produced before the Court and exhibited as Ex. PW-1/P-8 and Ex. PW-1/P-9 on DLSH010047242016 Page 64 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 25.04.2024.
89. Accordingly, the prosecution proved beyond reasonable doubt that non-compliance of Section 52A NDPS Act does not affect its case against the accused persons, as the case property seized at the spot was produced as primary evidence before the Court with the seals intact and while the said case property remained in police custody, it was not tampered with.
90. Accordingly, it is held that the integrity of the case property was maintained from the time the case property was seized at the spot till the time the sample was analyzed at FSL and the pullanda Mark-A was produced before the Court.
Videography and Photography not done during the proceedings and CCTV footage not produced
91. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2016.
92. The question before the Court is whether the deposition of recovery witnesses, who have corroborated each other in material particulars, can be overlooked or disbelieved, merely because they did not take photographs or video at the time of search and seizure?
93. Though the videography and photography of the search and seizure DLSH010047242016 Page 65 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
94. This is neither any legal provision that makes it mandatory in each case that the recovery proceedings be videographed or photographed, nor there is any law of evidence, that in absence of videography / photography, the evidence of the prosecution witnesses cannot be relied upon. Accordingly, absence of videography / photography of recovery proceedings by itself does not render the case of prosecution doubtful.
95. In the present matter, by leading defense evidence, accused persons established that there were CCTV cameras installed at ISBT, Anand Vihar as DW-3 Sh. Kamal Chauhan, Junior Engineer in DTIDC, posted at ISBT, Kashmiri Gate, Delhi brought location chart of CCTV cameras installed at ISBT, Anand Vihar. In the chart, fixed cameras are shown in the green colour and PTZ cameras were shown in red colour. It is stated that the cameras were installed in the year 2007 and control of the same was handed over to Delhi Police. He exhibited copy of location chart as Ex. DW-3/A and copy of his ID Card as Ex. DW-3/B.
96. On analyses of the site plan of the present case, vis a vis location chart brought by DW-3 it came to light that accused persons were apprehended and recovery proceedings were held on service road in between entry and exit gate of ISBT, Anand Vihar. From analyses of location chart of CCTV cameras, apparently there was no CCTV camera installed at the service road in between DLSH010047242016 Page 66 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act entry and exit gates, rather the cameras were installed inside i.e. when one enters the entry gate or exit gate, walks the over bridge on the naala only after that CCTV cameras were installed, thus the place of recovery was not covered by the said CCTV cameras.
97. Though no journey ticket was recovered from accused persons namely Salim and Mohd. Islam @ Munna and no CCTV footage has been shown to establish their movement for approaching the place of their apprehension, however these lacunae in police investigation by itself would not vitiate the entire proceedings.
Presumption
98. 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 his claim of either unawareness or absence of conscious possession of contraband. 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 reads as follows:DLSH010047242016 Page 67 of 71 SC 957/2016
STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act
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 DLSH010047242016 Page 68 of 71 SC 957/2016 STATE Vs. SALIM & ORS.
FIR No. 71/2016(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act 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 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."
99. In Noor Aga Vs. 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.
100. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Haryana, (2002) 8 SCC 372, discussed the approach the Court should take when analyzing the evidence, as under :-
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions DLSH010047242016 Page 69 of 71 SC 957/2016 STATE Vs. SALIM & ORS.FIR No. 71/2016
(Crime Branch) U/s 21(b) & 29 r/w Section 21(b) NDPS Act and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
101. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused Salim beyond reasonable doubt. The presumption under Sections 35 and 54 of the NDPS Act is applicable in this case against the accused Salim, as the recovery of contraband has been established beyond reasonable doubt. The accused Salim failed to rebut this presumption, leading to the conclusion that he was knowingly and deliberately in possession of an intermediate quantity of heroin. According to the presumption under Section 54 of the NDPS Act, since the accused Salim was found in possession of an intermediate quantity of heroin, he has committed an offense punishable under Section 21(b) of the NDPS Act.
102. Apart from the fact that both the accused persons namely Salim and Mohd. Islam @ Munna were apprehended together, there is nothing on record to suggest that accused Mohd. Islam @ Munna was aware that accused Salim was carrying contraband. In such circumstances, there is nothing to establish the claim that accused Mohd. Islam @ Munna was in joint possession of the contraband recovered from accused Salim, further there is nothing to establish any criminal conspiracy between the two.
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103. There is no evidence on record against accused Mohd. Abdur Rahim Sheikh, apart from the disclosure statement of co-accused and his own disclosure statement as nothing was recovered from accused Mohd. Abdur Rahim Sheikh. There is no voice recording showing connivance between him and the other accused persons.
Conclusion
104. The prosecution proved beyond reasonable doubt that accused Salim was in possession of intermediate quantity of heroin/ smack, as 200 gms of heroin was recovered from the possession of accused Salim. In view of the presumption under Section 35 and 54 NDPS Act, it is presumed that accused Salim had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug/ heroin without any authority or license to be in possession of the same.
However, there is no admissible evidence on record against accused Mohd. Islam @ Munna and Mohd. Abdur Rahim Sheikh.
Order
105. Accordingly, accused Salim is convicted for the offence punishable under Section 21(b) of the NDPS Act.
Accused persons namely Mohd. Islam @ Munna and Mohd. Abdur Rahim Sheikh are acquitted for the offence punishable under Section 29 r/w Section 21(b) of the NDPS Act. Both of them are directed to furnish bail bonds U/s 481 BNSS (earlier Section 437-A Cr.P.C.), as per rules.
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106. Copy of the judgment be supplied to accused Salim free of cost.
Announced in the open Court Digitally
GAJENDER signed by
on 25th October, 2025 SINGH GAJENDER
NAGAR SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi