Delhi District Court
Ncb vs Rafik And Ors on 24 November, 2025
IN THE COURT OF ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No.107-2018
CNR No. DLND010038122018
U/S 20 (b)(ii)(C) and 29 of NDPS Act
NCB Vs. RAFIK & ORS
Date of Institution : 01.05.2018
Date of Arguments : 27.10.2025,
28.10.2025,
01.11.2025 &
15.11.2025
Date of Judgment : 24.11.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 4
3. Prosecution Evidence 10
4. Plea of the Accused 21
5. Defence Evidence 22
6. Submissions made on behalf of the NCB 23
7. Submissions made on behalf of the Accused 25
8. Relevant Law & the Case Laws 37
9. Appreciation of Evidence 44
10. Conclusion & Findings 67
Digitally signed by
ATUL ATUL AHLAWAT
AHLAWAT Date: 2025.11.24
11:35:18 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/24.11.2025
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 1 of 72
IN THE COURT OF ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No.107-2018
CNR No. DLND010038122018
U/S 20 (b)(ii)(C) and 29 of NDPS Act
Brief Details of the Case & Memo of Parties
NCB Vs. RAFIK & ORS
Date of Institution : 01.05.2018
Date of Arguments : 27.10.2025,
28.10.2025,
01.11.2025 &
15.11.2025
Date of Judgment : 24.11.2025
A) Session Case No. : 107/2018
B) Charges framed under section : 20 (b)(ii)(C) and 29
of NDPS Act, 1985.
C) Name of the complainant : IO Anand Kumar
D) Name of the accused : 1. Rafik
S/o Sh. Hasan Deen
R/o Vill-Hurla, PO
Hurla, Tehsil
Bhunter, District
Kullu, Himachal
Pradesh.
2. Jay Haresh
Somaiya, S/o Sh.
Haresh Somaiya, R/o
Karan Apartment, C-
Wing, Flat No. 106,
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.11.24
11:35:26 +0530
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 2 of 72
Yari Road, Varsova,
Andheri West,
Mumbai.
3. Ramesh Kumar,
S/o Sh. Neel Chand,
Vill-Chojh, PO
Manikaran, Kullu,
Himachal Pradesh.
4. Guljar,
S/o Mohammad
Nawab, R/o, PO Jia,
Kashawari, Bhunter,
Distt Kullu,
Himachal Pradesh.
5. Ramdev
(discharged vide
order dated
17.01.2020),
S/o Sh. Ram
Manohar, R/o A-10,
Nagali Rajapur, Near
Sarai Kale Khan,
New Delhi
6. Gaurav Kumar,
(discharged vide
order dated
17.01.2020),
S/o Sh. Sanjay Raj,
R/o J-3/87, Street
No. 4, Laxmi Nagar,
Delhi-110092
7. Neel Chand
(Proclaimed
person),
S/o Sobhe Ram, R/o
Vill-Chojh, PO
Manikaran, District
Kullu, Himachal
Pradesh
E) Plea of the accused persons : Not guilty
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.11.24
11:35:34 +0530
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 3 of 72
F) Final Order : Acquitted
G) Date of Order : 24.11.2025
JUDGMENT
(Pronounced on the 24th day of November, 2025) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 05.11.2017, when a secret information was received by Intelligence officer Sh. Rajeev Sahrawat. As per the said information, two persons namely Rafik, S/o Sh. Hasan Deen and Guljar, S/o Sh. Mohammad Nawab, both residents of Himachal Pradesh would be arriving at Hazarat Nizamuddin Railway Station, New Delhi on 05.11.2017 itself during the evening hours for boarding a train to Mumbai. The said persons would be carrying charas with them in bags and if their bags were checked, huge quantity of the contraband could be recovered.
The said information was passed on telephonically by the Intelligence Officer to Ms. Tulika Morang, Superintendent, NCB DZU at about 09:00 Hours and same was reduced into writing at about 10:30 hours, after the intelligence officer reached the DZU Office. The concerned Superintendent then directed Sh. Anand Kumar, IO to constitute a team and take action as per law.
2. Intelligence Officer Sh. Anand Kumar, then constituted a team led by him and consisting of Sh. Banke Ram, IO; Sh. Rajeev Sehrawat, IO; Sh. Vikas Yadav, IO; Sh. Rajender Kumar Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:35:44 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 4 of 72 +0530 Verma, IO; Sh. Manmohan Jakhmola, IO; Sh. Virender Kumar, IO; Sh. Sanjeev Kumar, Sepoy; Sh. Atul Shahi, Driver; Sh. R.S Yadav, Driver and Sh. Babu Lal, Driver. The IO Sh. Anand Kumar also collected the seal of 'NARCOTICS CONTROL BUREAU, DZU-3' from the Superintendent alongwith the field testing kit, electronic weighing machine, IO kit and all the accessories required for search and seizure proceedings. The team went in two government vehicles and reached Hazarat Nizammdin Railway Station at about 12:20 hours.
3. At the Railway Station, the NCB team checked the platforms and nearby area. At about 15:30 hours, further secret information was received and it was brought to the knowledge of the NCB Officials that suspects Rafik and Guljar would be boarding train no. 12954 to Mumbai and thereafter, the team reached platform no. 3 at about 15:45 hours and kept the surrounding area on surveillance. The IO Sh. Anand Kumar requested 2-3 persons working there to join the NCB team as independent witnesses and on his request, Sub-Inspector Sandeep Kumar and Sepoy Prem Narayan of Railway Protection Force agreed to voluntarily join the team as independent witnesses.
4. At about 16:35 hours, accused Rafik and Guljar came downstairs to the platform and there was another person accompanying them, carrying the trolley bag in his hand. The NCB team intercepted the accused persons and the third person, who was carrying the trolley bag had disclosed and he disclosed his name as Ram Dev. Accused persons were informed about the secret information and upon asking about their identity cards and Digitally signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.11.24 11:35:51 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 5 of 72 +0530 tickets, accused Rafik showed one e-ticket having PNR No. 2500721416 of train no. 12954 from Hazarat Nizamuddin to Mumbai Central, issued in the name of the accused Rafik and Guljar. The third person namely Ram Dev informed the NCB team that he was the travel agent and the bag he was carrying belonged to accused Rafik and he had come to the station to show the train to the accused persons.
5. IO Anand Kumar, offered the accused persons his own personal search and the personal search of the NCB team and the independent witnesses, before conducting the search and seizure proceedings, however, the same was denied by them. Thereafter, the NCB officials served separate notices U/s 50 of the Act to accused Rafik, Guljar and Ram Dev. However, nothing incriminating was found in the personal search. Thereafter, the IO Anand Kumar, asked accused Rafik to open the dark green color trolley bag and the said bag was opened by the accused and it was found containing some clothes, blanket etc and after removing the same it was found that the bottom of the bag was covered with a cardboard and after removing the same, brown color packets were found. On counting, total 27 packets were recovered and they were all packaged in the same manner. The packets were all cut open separately and were found to contain 'Dark Brown Color Substance' in semi solid form. The small quantity of the substance were taken from each packet and were tested separately with the help of field testing kit and they all gave positive result for charas. The total weight of the substances recovered from the 27 packets came out to be 6.200 Kg. The dark brown color substance was mixed homogeneously and two Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:36:03 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 6 of 72 samples of 25 grams each were drawn and after converting the same into pullandas, they were marked as Mark A-1 and Mark A-
2. The remnant substances was converted into a pullanda and marked as Mark A. The trolley bag alongwith the clothes were converted into a pullanda and marked as Mark D. The bag pack of red and grey color, carried by accused Guljar was not found containing any contraband and the same was also converted into a pullanda and marked as Mark C.
6. On 05.11.2017, IO Anand Kumar gave notice u/s 67 to the accused Rafik, Guljar and Ram Dev and they were directed to come to NCB office for giving their statements and for examination. The accused persons appeared before the NCB Office on 05.11.2017 and gave their voluntary statements. The IO also recorded the statements of the independent witnesses U/s 67 of the Act.
7. During the preliminary inquiry conducted from accused Rafik, it was disclosed by him that the charas in question was handed over to him by one Jay, who was the permanent resident of Mumbai and was currently staying at the house of one Beboram at village Choj, Manikaran, PS Kullu, Himachal Pradesh and by one Neel Chand @ Nillu Bhai, who also gave some quantity of charas to him. Accused Rafik also disclosed the mobile numbers of the said suppliers.
8. The IO then forwarded a letter alongwith the disclosure letter to Zonal Director, NCB, Chandigarh Zonal Unit on 05.11.2017 for taking necessary follow-up action to intercept Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.24 11:36:12 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 7 of 72 accused Jay and to record the statement of the said person and if required to arrest him. Thereafter, the Zonal Director, NCB, CZU directed Superintendent Kuldeep Sharma to take appropriate action as per law.
9. The raiding team of NCB, CZU led by Kuldeep Sharma, Superintendent reached Manikaran, District Kullu, Himachal Pradesh on 05.11.2017 at about 24:00 hours and on 06.11.2017 at about 05:45 hours, the team reached the residence of Beboram at Village Choj. The accused Jay Haresh Somaiya was apprehended and notice U/s 67 of the Act was served upon him and he was directed to appear before the IO at Hotel Royal Palace, Choj at 07:15 hours. He duly appeared and statement was recorded in his own handwriting and it was allegedly disclosed by him that he had purchased 01 Kg of charas from Neel Chand and one Purshotam @ Kaku Bhai of Malana and he had used accused Rafik and Guljar as his courier. He also allegedly disclosed that he had deposited the money for the contraband in the bank accounts of accused Neel Chand and his son accused Ramesh Kumar and their other family members.
10. On the basis of the statement of accused Jay Haresh Somaiya, the NCB Officials reached the house of accused Neel Chand, however, he was not found present there and the notice U/s 67 of the Act was served to accused Ramesh Kumar, for appearing before the IO at Hotel Royal Palace, Choj on 06.11.2017 itself.
11. On 07.12.2017, the FSL report from CRCL New Delhi was Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:36:21 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 8 of 72 +0530 received, which had given the positive result of the sample matching for 'charas'.
12. Since, accused Neel Chand was not appearing before the NCB Officials and was not apprehended, the complaint was filed with request for issuance of NBWs against him. Since, it was disclosed by accused Rafik that he had supplied the charas to one Gaurav, who had already been arrested in another case registered by NCB, the said person was interrogated in jail and was arrested in the present case. Although, accused Gaurav had disclosed that he had taken three packets of charas from accused Rafik on 05.11.2017, however since no evidence qua his involvement in the conspiracy of transport/possession of 6.200 Kg of charas recovered from the co-accused persons, he was later discharged in the present case.
13. The IO completed the investigation and the complaint was filed before this Court by IO/complainant Anand Kumar on 01.05.2015, as an authorized officer, to file the complaint before this court vide notifications SO 763, (E) dated 27.09.1989 and SO 585, (E) dated 25.02.2016.
14. After compliance of section 207/208 Cr.P.C, 1973, the charges were framed by my Ld. Predecessor on 20.01.2020, U/s 20 (b)(ii)(C) of the NDPS Act, 1985 against the accused Rafik and Guljar and U/s 29 r/w Section 20 (b)(ii)(C) of NDPS Act, 1985 against accused Rafik, Jay Haresh Somaiya, Ramesh Kumar and Guljar. Accused Gaurav and Ram Dev were discharged vide detailed order dated 17.01.2020 and accused Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:36:29 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 9 of 72 +0530 Neel Chand was later declared as a Proclaimed Person. The accused persons pleaded not guilty and they had claimed trial.
Prosecution Evidence:
15. To prove its case, the prosecution has examined 14 (fourteen) witnesses, out of which there are 2 Expert/FSL Witness; two independent witnesses; complainant; two IOs; and other material search and seizure witness.
16. Expert Witnesses:
(16.1.1) PW-1 is Dr. T.C Tanwar and he is the CRCL Expert. Under his supervision, PW-13, Sh. Anil N. Mahindrakar had prepared the CRCL Report dated 07.12.2017, Ex. PW-1/B. After the examination/analysis of the sample, it was found positive for charas. He identified his own signatures and also the signatures of Sh. Anil N. Mahindrakar, on the report.
(16.1.2) PW-1 Dr. T.C Tanwar had also deposed that he had issued the receipt of receiving the sample and diary number of the same was made as CLD-277(N) dated 06.11.2017, Ex.PW1/A and the said samples were kept in the Strong Room and receipt was issued to Mr. Atul Kumar Shahi. He also identified the remnant samples, which were produced by the Sepoy from NCB on the date of his examination in chief and same were exhibited as Ex.P-1 (colly).
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.11.24
11:36:40
+0530
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 10 of 72 (16.2.1) PW-13 is Sh. Anil N. Mahindrakar and he is the CRCL Expert and he had also deposed that under the supervision of PW-1 Dr. T.C. Tanwar, he had received the sample on 06.11.2017 and issued the receipt Ex.PW-1/A, at the directions of PW-1. On 20.11.2017, he had taken out the sample from the Strong Room and started the examination under the supervision of PW-1. He prepared the detailed report, Ex.PW-1/D and had filled Section II of the Test Memo, Ex.PW-1/C and after the completion of the analysis test, he had sealed the remnant sample with the seal of 'CRCL'. The remnant sample was identified by him during his examination-in-chief.
17. Independent Public Witnesses:
(17.1.1) PW-8 is Inspector Sandeep Kumar and he had deposed that on 05.11.2017, while he was posted at Hazarat Nizamuddin Railway Station as Sub-Inspector, Railway Police and was on Platform No. 3 for routine checking, three NCB Officials approached him and they requested him to join the investigation as a witness/team member, to which he accepted. The NCB officials disclosed about the secret information to him and three persons, who were coming down the stairs at Platform No. 3 were identified by the NCB Officers as the suspects. He further deposed that notices U/s 50 of the Act were served upon accused Rafik, Guljar and Ram Dev, bearing his signatures as a witness. He further deposed that during the personal search of the accused persons, nothing incriminating was recovered, however from the trolley bag which was in the possession of accused Rafik, the same was found containing clothes, blankets etc. and Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:36:47 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 11 of 72 from the bottom of the said bag, 27 packets containing charas were recovered.
(17.1.2) PW-8 Inspector Sandeep Kumar further deposed that the weight of the recovered substances from all the 27 packets, came out to be 6.200 Kg. After mixing the entire substance, two samples Mark A-1 and A-2 of 25 grams each were drawn from the recovered substances and the remnant substances was given Mark A. He also deposed that the sample substance was first kept in a plastic pouch and then kept in a paper envelop separately. Thereafter, paper slips were prepared and were signed by him and by the accused persons and the NCB Officials. Thereafter, the said paper slip was affixed on the seized articles.
(17.1.3) PW-8 Inspector Sandeep Kumar had correctly identified the accused persons and identified his signatures on the panchnama, Ex.PW-3/B and notice received by him U/s 67 of the Act and his statement, Ex.PW-3/S23. He also identified the contraband which was produced by the MHC(M), NCB, sealed in cloth pullanda Mark A, Ex.P-2 (colly) as the same dark brown color substance, i.e. charas recovered in his presence. He also identified the other case properties including the trolley bag and pitthu bag, recovered during the seizure proceedings.
(17.2.1) PW-11 is Head Constable Ram Narayan deposed that on 05.11.2017, while he was posted at Hazarat Nizamuddin Railway Station as Head Constable, Railway Police and was on Platform No. 3 for routine checking and at around 04:00 PM, some NCB Officials approached him and they requested him to Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:36:55 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 12 of 72 join the investigation as a witness/team member, to which he accepted. PW-8 Sub-Inspector Sandeep Kumar also reached there. The NCB officials disclosed about the secret information to him and at about 04:30 PM, three persons, who were coming down the stairs at Platform No. 3 were notices and they were stopped by the NCB Officials. He further deposed that notices U/s 50 of the Act were served upon accused Rafik, Guljar and Ram Dev, bearing his signatures as a witness. Accused Ram Dev was carrying the e-ticket of accused Rafik and Guljar for train no. 12954, August Kranti Express from Nizamuddin to Mumbai and the said ticket was a waiting ticket and the same was taken in possession by the NCB Officers vide seizure memo Ex.PW-3/C, bearing his signature.
(17.2.2) PW-11 Head Constable Ram Narayan has further deposed that during the personal search of the accused persons, nothing incriminating was recovered, however from the trolley bag, which was being carried by accused Ram Dev, the same was found containing clothes, blankets etc. and from the bottom of the said bag, 27 packets containing charas were recovered. Accused Ram Dev had informed the NCB Officials that he was merely the travel agent and the said green color trolley bag belonged to accused Rafik. He was informed by accused Rafik that the recovered charas was to be delivered at Mumbai and same was being carried by him and accused Guljar to Mumbai.
(17.2.3) PW-11 Head Constable Ram Narayan further deposed that the weight of the recovered substances from all the 27 packets, came out to be 6.200 Kg. Upon testing by the test kit, Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.24 11:37:03 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 13 of 72 the sample were found to be positive for charas.
(17.2.4) PW-11 Head Constable Ram Narayan had correctly identified the accused persons and identified his signatures on the panchnama, Ex.PW-3/B and notice received by him U/s 67 of the Act and his statement, Ex.PW-3/S24. He also identified the contraband which was produced by the MHC(M), NCB, sealed in cloth pullanda Mark A, Ex.P-2 (colly) as the same dark brown color substance, i.e. charas recovered in his presence. He also identified the other case properties including the trolley bag and pitthu bag, recovered during the seizure proceedings and the sample envelop alongwith the substances, Ex.P-1 (colly).
18. Formal Witnesses:
(18.1.1) PW4 is Sanjay Singh and he is the Nodal Officer of Bharti Airtel Ltd. During his testimony, the prosecution has sought to bring on record the CAF/CDR of mobile no. 9857171756, which was exhibited as Ex.PW-3/S21. The said witness had deposed on behalf of the then Nodal Officer Sh. Shishir Malhotra.
(18.2.1) PW 7 is Pawan Singh and he is the Nodal Officer of Vodafone Ltd. During his testimony, the prosecution has sought to bring on record the CAF/CDR of mobile no. 9811572489, which was exhibited as Ex.PW-7/A and the CAF/CDR of mobile no. 9736541856, which was exhibited as Ex.PW-7/B. (18.3.1) PW2 is Ajay Kumar and he is the Nodal Officer of Digitally signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.11.24 11:37:12 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 14 of 72 Bharti Airtel Ltd. During his testimony, the prosecution has sought to bring on record the CAF/CDR of mobile no. 9816171284, which was exhibited as Ex.PW-2/A; the CAF/CDR of mobile no. 8800462198 and 8800960769, which were exhibited as Ex.PW-2/B (colly); the CAF/CDR of mobile no. 9805148587, which was exhibited as Ex.PW-2//C; the CAF/CDR of mobile no. 8894353050 and 7807570577, which were exhibited as Ex.PW-2/D (colly); the CAF/CDR of mobile no. 8433574919, which was exhibited as Ex.PW-2/E (colly) and the CAF/CDR of mobile no. 8527729534 and 9818277386, which were exhibited as Ex.PW-2/F (colly).
Material Witnesses:
19. NCB Officials:
(19.1.1) PW-12 is IO/Inspector Rajeev Sehrawat and he had deposed that on 05.11.2017, while he was posted as the Intelligence Officer at NCB DZU, he received the secret information from reliable sources that two persons namely Rafik and Guljar, who were residents of Himachal Pradesh would be traveling to Mumbai alongwith charas by a train on 05.11.2017 from Nizamuddin Railway Station. He recorded the said information, Ex.PW-3/A and same was produced before the Superintendent Ms. Tulika Morang (PW-14) and the Superintendent had marked the said information to IO Sh. Anand Kumar (PW-3) to constitute a team and take action as per law.
(19.1.2) PW-12 IO/Inspector Rajeev Sehrawat further Digitally signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.11.24 11:37:20 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 15 of 72 +0530 deposed that thereafter he had joined the raiding team headed by PW-3 IO Anand Kumar and the said team consisted of him, the in-charge PW-3, PW-10 Vikas Yadav, PW-6 Atul Shahi, Sanjeev Kumar, R.S. Yadav, Babu Lal, R.K. Verma, M.M Jhakmola and Virender Kumar.
(19.2.1) It had come in the testimony of PW-3 IO Anand Kumar, PW-12 Inspector Rajeev Sehrawat, PW-6 Atul Shahi and PW-10 Vikas Yadav that they left the NCB Office at about 11:30 AM for Hazarat Nizamuddin Railway Station and reached there at about 12:20 AM by using two government vehicles. Thereafter, they checked all the platforms and surrounding area. It was categorically deposed by PW-3 IO Anand Kumar that they made surveillance and discrete inquiries about the suspects and came to know at about 03:30 PM that the suspects Rafik and Guljar would be boarding the train to Mumbai bearing no. 12954, August Kranti Rajdhani from the Platform No. 3. The surveillance was mounted near the stairs and Platform No. 3. The IO PW-3 requested two independent persons i.e. PW-8 Inspector Sanjeev Kumar and PW-11 Head Constable Ram Narayan, who agreed to join the raiding team. The public witnesses were informed about the secret information.
(19.2.2) It had further come in the testimony of PW-3 IO Anand Kumar, PW-12 Inspector Rajeev Sehrawat, PW-6 Atul Shahi and PW-10 Vikas Yadav that at about 04:35 PM, two persons whose appearance was matching with the description of the suspects were notices, while they were coming down from the stairs. It was also noticed that one other person Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:44:29 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 16 of 72 was coming with them, who was carrying the trolley bag. The said persons were stopped and during their preliminary inquiries, they disclosed their names and were apprised about the information and purpose of visit. They were asked to produce the travel tickets and identity related documents, to which accused Rafik had shown the e-ticket for traveling to Mumbai in the name of himself and co-accused Guljar. Accused Ram Dev disclosed that he was working as the traveling agent and the trolley bag which he was carrying belonged to accused Rafik and he had come to the station to help the other accused persons to board the train.
(19.2.3) It had further come in the testimony of PW-3 IO Anand Kumar, PW-12 Inspector Rajeev Sehrawat, PW-6 Atul Shahi and PW-10 Vikas Yadav that PW-3 IO Anand Kumar, offered the accused persons his own personal search and the personal search of the NCB team and the independent witnesses, before conducting the search and seizure proceedings, however the same was denied by them. Thereafter, the NCB officials served separate notices U/s 50 of the Act to accused Rafik, Guljar and Ram Dev. However, nothing incriminating was found in the personal search. Thereafter, the IO Anand Kumar, asked accused Rafik to open the dark green color trolley bag and the said bag was opened by the accused and it was found containing some clothes, blanket etc and after removing the same it was found that the bottom of the bag was covered with a cardboard and after removing the same, brown color packets were found. On counting, total 27 packets were recovered and they were all packaged in the same manner. The packets were all Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:44:37 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 17 of 72 cut open separately and were found to contain 'Dark Brown Color Substance' in semi solid form. The small quantity of the substance were taken from each packet and were tested separately with the help of field testing kit and they all gave positive result for charas. The total weight of the substances recovered from the 27 packets came out to be 6.200 Kg. The dark brown color substance was mixed homogeneously and two samples of 25 grams each were drawn and after converting the same into pullandas, they were marked as Mark A-1 and Mark A-
2. The remnant substances was converted into a pullanda and marked as Mark A. The trolley bag alongwith the clothes were converted into a pullanda and marked as Mark D. The bag pack of red and grey color, carried by accused Guljar was not found containing any contraband and the same was also converted into a pullanda and marked as Mark C. The seal of 'NARCOTICS CONTROL BUREAU DZU -3' was affixed on all the pullandas.
Thereafter, upon completion of the recovery, the panchnama, Ex.PW-3/D which was simultaneously prepared was signed by the accused persons and the witnesses. Thereafter, PW-3 issued notices U/s 67 of the Act to accused Rafik, Guljar and Ram Dev. Notices U/s 67 of the Act were also issued to the independent witnesses PW-8 Inspector Sandeep Kumar and PW-11 Head Constable Ram Narayan.
(19.3.1) It had come in the testimony of PW-3 IO Anand Kumar and PW-14 Superintendent Ms. Tulika Morang (the serial no. of the witness is changed from PW-13 to PW-14, since the witness Anil N. Mahindrakar was already examined as PW- 13 on 18.04.2023 and in the testimony of PW Ms. Tulika Morang Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:44:45 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 18 of 72 was inadvertently also recorded as PW-13 by the Ld. Predecessor of this Court on 15.05.2023) (emphasis supplied) that on 05.11.2017, the secret information recorded by PW-12 Inspector Rajeev Sehrawat was put up before PW-14 and the same was marked by her to PW-3 alongwith a direction to constitute a team and for taking action as per law. PW-3 then took the seal from her and she made the relevant entry in the seal movement register and the seal was deposited back by PW-3 on the same day. The case property was also deposited by PW-3 with her, since she was also the Godown In-charge and she made the entry in the Godown Register, Ex.PW-13/B. (19.4.1) It had come in the testimony of PW-14 Superintendent Ms. Tulika Morang, PW-6 Sepoy Atul Kumar Shahi that on 06.11.2017, PW-14 has authorized PW-6 to deposit sample Mark A-1 with CRCL alongwith test memo (in duplicate), Ex.PW-1/C alongwith the forwarding letter Ex.PW- 1/D. The samples were deposited by PW-6 and the receipt obtained from CRCL, Ex.PW-1/A was handed over to PW-14 by PW-6.
(19.5.1) It had come in the testimony of PW-14 Superintendent Ms. Tulika Morang, PW-3 IO Anand Kumar, PW-12 Inspector Rajeev Sehrawat, PW-5 IO Banke Ram and PW-10 IO Vikas Yadav that on 06.11.217, after the preparation of the seizure report, Ex.PW-3/L under Section 57 of the Act, PW-3 had put up the said report before PW-14. On 07.11.2017, PW-12 submitted the arrest report of accused Rafik, Ex.PW- 12/D. On the same day, PW-5 submitted the arrest report of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.24 11:44:54 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 19 of 72 accused Guljar, Ex.PW-5/E and PW-10 submitted the arrest report of accused Ram Dev, Ex.PW-10/D, before PW-14.
(19.6.1) It had come in the testimony of PW-14 Superintendent Ms. Tulika Morang that on 05.11.2017 itself, Zonal Director, NCB, DZU had written a letter to Zonal Director, NCB, Chandigarh for follow-up in the present case and same was shown to her by PW-3, before sending the same.
(19.7.1) PW-9 is IO Shailender Prasad and he had deposed that on 05.11.2017, he was posted at NCB, Chandigarh and the request letter dated 05.11.2017, Ex.PW-3/K was received from NCB, DZU. Thereafter, he constituted a team consisting of himself, Superintendent Sh. Kuldeep Sharma, Superintendent Ashish Ojha, Kulwinder Kumar, Maheshwar Barwal and Surjeet Singh for carrying raid at Village Choj, Manikaran, Himachal Pradesh.
(19.7.2) PW-9 IO Shailender Prasad had further deposed that the raiding team of NCB, CZU led by Superintendent Kuldeep Sharma reached Manikaran, District Kullu, Himachal Pradesh on 05.11.2017 at about 24:00 hours and on 06.11.2017 at about 05:45 hours, the team reached the residence of Beboram at Village Choj. The accused Jay Haresh Somaiya was apprehended and notice U/s 67 of the Act was served upon him and he was directed to appear before the IO at Hotel Royal Palace, Choj at 07:15 hours. He duly appeared and statement was recorded in his own handwriting and it was allegedly disclosed by him that he had purchased 01 Kg of charas from Neel Chand and one Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:45:52 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 20 of 72 Purshotam @ Kaku Bhai of Malana and he had used accused Rafik and Guljar as his courier. He also allegedly disclosed that he had deposited the money for the contraband in the bank accounts of accused Neel Chand and his son accused Ramesh Kumar and there other family members.
(19.7.3) PW-9 IO Shailender Prasad had further deposed that on the basis of the statement of accused Jay Haresh Somaiya, the NCB Officials reached the house of accused Neel Chand, however he was not found present there and the notice U/s 67 of the Act was served to accused Ramesh Kumar, for appearing before the IO at Hotel Royal Palace, Choj on 06.11.2017 itself.
(19.7.4) PW-9 IO Shailender Prasad had further deposed that the voluntary statement of accused Jay Haresh Somaiya, Ex.PW-9/C and of accused Ramesh Kumar, Ex.PW-9/H were recorded U/s 67 of the Act. They were both arrested and after their medical examinations were got conducted at Civil Hospital, Kullu, they were produced before the Ilaka Magistrate, Kullu and their transit remand was taken for their production at Delhi. On 07.11.2017, he prepared the arrest report, Ex.PW-9/D and produced the same before Superintendent Sh. Kuldeep Sharma.
Plea of the Accused:
20. After completion of the prosecution evidence, Prosecution Evidence was closed. The statement of the accused persons were recorded under Section 313 Cr.P.C., 1973 in which they had pleaded their innocence. They had simpliciter denied all the Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:46:02 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 21 of 72 incriminating evidence that came up in the testimonies of the prosecution witnesses and they had specifically stated that no recovery was effected in the present case and they have been falsely implicated at the instance of the IO and the contraband was planted. They were illegally abducted by the NCB Officials.
21. The accused persons namely Rafik, Guljar and Jay Haresh Somaiya chose not to lead any Defense Evidence and the same was closed qua them accordingly. Accused Ramesh Kumar chose to lead Defense Evidence.
22. Defense Evidence:
(22.1.1) DW-1 is Constable Chetan Rana and he has deposed that he had brought the rojnamcha register for the period between 24.10.2017 to 16.11.2017 maintained at Police Post, Manikaran, H.P. In the year 2017, he was posted at the said Police Post as MC(Munshi Constable) and on 06.11.2017, he made entry no. 8, Ex.DW-1/A, regarding the arrival of NCB Superintendent Sh. Kuldeep Sharma, Inspector Shailender Prasad and Ramesh Kumar (accused). He also recorded entry no. 9, Ex.DW-1/B. Thereafter, he also recorded entry at no. 15 of the register, Ex.DW-1/C regarding the complaint filed by one Sita Devi, who is the mother of accused Ramesh Kumar.
23. I have heard the arguments advanced by Sh. P.C Aggarwal, Ld. SPP for NCB; Sh. Sumit Sharma, Ld. Counsel for accused Rafik, Guljar and Jay Haresh Somaiya and Sh. Abhir Dutt, Ld. Counsel for the accused Ramesh Kumar. I have also Digitally signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.11.24 11:46:10 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 22 of 72 minutely gone through the evidence brought on record and the other material aspects of the case.
Submissions made on behalf of the NCB:
24. It has been argued by the Ld. SPP for NCB that through the clinching and unimpeachable testimony of the prosecution witnesses, the NCB has been able to discharge its burden beyond reasonable doubt that a secret information, Ex.PW-3/A was received by PW-12 IO/Inspector Rajeev Sehrawat on 05.11.2017 regarding accused Rafik and Guljar, who were residents of Himachal Pradesh would be traveling to Mumbai from Hazarat Nizamuddin Railway Station in the evening of 05.11.2017 itself.
25. It has been further argued by the Ld. SPP for NCB that after informing the Superintendent, PW14 Ms. Tulika Morang about the secret information, the said Superintendent had directed PW- 3 IO Anand Kumar to constitute a team to take further necessary action as per law. It had come in the testimony of the members of the raiding team, namely PW-3 IO Anand Kumar, PW-12 IO/Inspector Rajeev Sehrawat, PW-5 Banke Ram, PW-6 Atul Kumar Shahi and PW-10 Vikas Yadav that the NCB Team reached Hazarat Nizamuddin Railway Station at about 12:20 pm. After making discrete inquiries, it was brought to the notice of the IO PW-3 Anand Kumar that accused Rafik and Guljar would be traveling to Mumbai by Train No. 12954, August Kranti Rajdhani, which was supposed to depart from Platform No. 3.
The IO had requested the independent witnesses to join the investigation and at his request, PW-8 Sh. Sandeep Kumar and Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:46:33 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 23 of 72 PW-11 Sh. Ram Narayan, who were both working with Railway Protection Force, agreed to become the independent witnesses.
26. It has been further argued by the Ld. SPP for NCB that through the categorical testimony of the raiding team witnesses that from the green color trolley bag belonging to the accused Rafik total 27 packets were recovered and they were all packaged in the same manner. The packets were all cut open separately and were found to contain 'Dark Brown Color Substance' in semi solid form. The small quantity of the substance were taken from each packet and were tested separately with the help of field testing kit and they all gave positive result for charas. The total weight of the substances recovered from the 27 packets came out to be 6.200 Kg. The dark brown color substance was mixed homogeneously and two samples of 25 grams each were drawn and after converting the same into pullandas, they were marked as Mark A-1 and Mark A-2. The remnant substances was converted into a pullanda and marked as Mark A.
27. It has been further argued by the Ld. SPP for NCB that the sample Mark A-1 was sent to the CRCL by orders of PW-14 Superintendent Ms. Tulika Morang, through PW-6 Sepoy Atul Kumar Shahi and vide report Ex.PW1/B, which was brought on record during the testimony of PW-1 Dr. T.C. Tanwar and PW-13 Sh. Anil N. Mahindrakar, the prosecution has duly proved that the sample was found containing charas.
28. It has been further argued by the Ld. SPP for NCB that through the unimpeachable testimonies of PW-3 IO Anand Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:46:41 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 24 of 72 Kumar, PW-12 IO/Inspector Rajeev Sehrawat, PW-5 Banke Ram, PW-6 Atul Kumar Shahi and PW-10 Vikas Yadav, PW-9 Sh. Shailander Prasad and PW-14 Superintendent Ms. Tulika Morang, the prosecution has duly proved that all the mandatory statutory compliances under the NDPS Act, 1985 were duly adhered to.
29. It has been further argued by the Ld. SPP for NCB that since the search, seizure and arrest were effected from a public place, the requirements U/s 41 (2) and Section 42 of the Act, since the present case is covered under the provisions of the Section 43 of the Act.
30. It has been further argued by the Ld. SPP for NCB that since there was recovery of total 6.200 Kg of charas from the bag of accused Rafik and he alongwith accused Guljar were trying to supply the same to Mumbai, after sourcing the said contraband from accused Jay Haresh Somaiya and accused Neel Chand (PO). The payments qua the said contraband were made by accused Jay Haresh Somaiya to the accounts of accused Neel Chand and his other family members including accused Ramesh Kumar. Accused Jay Haresh Somaiya had contracted the services of accused Rafik and Guljar to supply the said contraband to Mumbai and therefore, they had contravened the provisions of Section 20(b)(ii)(C) r/w Section 29 of the NDPS Act, 1985.
Submissions made on behalf of the Accused Persons:
31. It is submitted by the Ld. Counsel for the accused Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 25 of 72 11:46:49 +0530 Rafik, Guljar and Jay Haresh Somaiya that the accused persons have been falsely implicated in the present case and no recovery was effected from the possession of any of the said accused persons. As per the case of NCB, the bag in question from which alleged recoveries were made was not in the conscious possession of either accused Rafik or accused Guljar. The said bag was being carried by the third person namely accused Ram Dev, however the said person was discharged by the Ld. Predecessor of this Court vide order dated 17.01.2020. In addition to accused Ram Dev, the Ld. Predecessor of this Court discharged accused Gaurav Kumar, who was arrested on 12.04.2019 i.e. after about five months from the alleged recovery made on 05.01.2017. The said accused person was implicated in the alleged disclosure statement of accused Rafik and he was formally arrested, after he was already in JC in some other case pending before this Court.
32. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the alleged recovery is not in consonance with the mandatory requirements of Section 41 of the Act. Once it was brought to the notice of PW-14 Ms. Tulika Morang, who was the Superintendent, NCB, DZU that the suspects would be traveling to Mumbai from Hazarat Nizamuddin Railway Station, then she ought to have given the search authorization qua their alleged names or qua the train number or the place from where they would be traveling.
Therefore, the said secret information Ex.PW-3/A is nothing but an eye-wash. Since, there was no clear search authorization, as duly reflected in the cross-examination of PW-3 IO Anand Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:46:57 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 26 of 72 +0530 Kumar and PW-14 Superintendent Ms. Tulika Morang, the subsequent search and seizure has no value in the eyes of law. The Ld. Counsel has placed reliance on the decisions of the Hon'ble Supreme Court of India in 'State of Punjab v. Balbir Singh' AIR 1994 SC 1872 and 'Smt. Najmunisha & Anr. v. State of Gujarat & Anr', 2024 SCC OnLine SC 520 and the decision of Hon'ble High Court of Delhi in 'DRI v. Manjinder Singh' 2014 SCC OnLine Del 319.
33. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the prosecution has failed to prove that the mandatory compliance of Section 42 of the Act was made out in the present case. The genesis of the prosecution's case began with the information, Ex.PW-3/A, received by PW-12 Inspector Rajeev Sahrawat, which was produced by him before PW-14 Superintendent Ms. Tulika Morang, who further authorized PW-3 IO Anand Kumar to take appropriate action on the said secret information. The secret information contained the namers of the two suspects, their domicile, the intended destination, however it missed out certain relevant information such as the timing of their arrival at the train station and the details of the train and platform number etc. It was not explained by the prosecution as to how the PW-3 IO Anand Kumar got the secret information regarding the train number etc. at 03:30 PM, since the said information was never reduced into writing by him.
34. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that there has been non-Digitally signed by ATUL AHLAWAT
ATUL Date:
AHLAWAT 2025.11.24
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compliance of mandatory Section 50 of NDPS Act. The bare perusal of the notices issued to accused Rafik, Guljar and Ram Dev reflects that the word 'nearest' is not mentioned before the Magistrate/Gazetted Officer and instead 'Kissi' has been mentioned. The said omission has struck a fatal blow on the entire seizure proceedings, since the law laid down by the Hon'ble Supreme Court of India in 'Arif Khan @ Aga Khan v.
State of Uttarakhand', Criminal Appeal No. 273/2007 date of decision 27.04.2018, (2018) 18 SCC 380 was not complied with.
35. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the material prosecution witnesses who had issued the notices to the accused persons U/s 50 of the Act were themselves were not aware of the details of the nearest Gazetted Officer posted at or around Hazarat Nizamuddin Railway Station and how could they have informed about the same to the accused persons has remained a mystery. The said fact was duly brought forth in the cross- examination of PW-5 Banke Ram, who had categorically deposed that he was not aware as to whether any Gazetted Officer was posted at Hazarat Nizamuddin Railway Station or who was the nearest Magistrate.
36. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that there are major contradictions in the case of the prosecution regarding the recording of statements of accused persons U/s 67 of the Act. As per the panchnama, Ex.PW-3/B the seizure proceedings continued from 16:40 hours to 18:15 hours on 06.11.2017 and Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 28 of 72 11:47:10 +0530 accused Rafik was subsequently arrested at 17:00 hours, however accused Guljar was arrested at 16:00 hours and accused Ram Dev was allegedly arrested at 15:30 hours. There is no independent corroboration of the alleged statements, since the NCB Officer namely Sh. Vishwender Singh, who had allegedly witnessed the recording of the said statements was not made a prosecution witness by the NCB and the statements in themselves have no evidentiary value. The Ld. Counsel placed reliance on the decision of the Hon'ble Supreme Court of India in 'Tofan Singh v. State of Tamil Nadu', (2021) 4 SCC 1.
37. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that as per the panchnama, Ex.PW-3/B, the NCB officials had seized the train ticket, Ex.PW-3/C during the seizure proceedings itself. The said proceedings culminated on 06.11.2017 at 06:15 PM, however the bare perusal of the document reflects that the printout of the same was taken out at 05:45 PM, i.e. after the seizure proceedings had already stated at 04:40 PM, therefore the testimony of the prosecution witnesses that after the accused persons were initially intercepted, during the preliminary inquiry accused Rafik had shown the ticket to PW-3 IO Anand Kumar, is rendered suspicious and the entire proceedings conducted by the NCB was merely an eye-wash and the recovered contraband was planted upon the accused persons.
38. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the NCB has sought to bring on record the CAF and CDR details of the mobile Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 29 of 72 2025.11.24 11:47:21 +0530 numbers allegedly used by the accused persons, however PW-2 Ajay Kumar, PW-4 Sanjay Singh and PW-7 Pawan Singh had all deposed on behalf of some other Nodal Officer and they were not the same officers who had issued the documents which were sought to be brought on record.
39. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that there has been non- compliance of mandatory Section 52 A of the Act and the NCB has not filed the application moved under Section 52 A of the Act and the same goes to the root of the matter. Furthermore, there has been non-compliance of the mandatory Standing Orders No. 1/88 and No. 1/89 and the NCB Officer's Hand-book, since the alleged recovery was made from 27 packets and instead of testing the contents of each packet separately, the contents were mixed homogeneously by the IO and the alleged samples were taken out from the mixture, therefore the NCB has miserably failed to prove the weight of the contraband and whether any offence for commercial quantity has been made out or not. The benefit of the same must go to the accused persons.
40. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that no recovery was made from the physical possession of the accused persons. The bag from which the alleged recoveries are shown from, also was not in the conscious possession of the accused persons. The concerned person, who was carrying the bag has already been discharged by this Court. There is nothing except for the statements U/s 67 of the Act, to pin the recovery on accused Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 30 of 72 2025.11.24 11:47:31 +0530 Rafik, however the said statements have no evidentiary value.
41. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the entire prosecution story is rendered doubtful, since the arrest memo of accused Jay Haresh Somaiya reflects that he was arrested on 06.11.2017 at 09:50 hours, therefore his arrest was effected even prior to the alleged arrest of accused Rafik and Guljar, in spite of the fact that the role of accused Jay Haresh Somaiya came in their respective statements U/s 67 of the Act, which were allegedly recorded after their arrests. As per the complaint, accused Jay Haresh Somaiya was brought to Delhi on 08.11.2017, however PW-3 IO Anand Kumar had deposed during his cross-examination that he saw accused Jay Haresh Somaiya for the first time on 06.11.2017 or 07.11.2017, i.e. even prior to him being brought to Delhi and it is not the case of the prosecution that PW-3 IO Anand Kumar had joined the raiding team of NCB, CZU, which effected the arrest of accused Jay Haresh Somaiya.
42. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the NCB Officals had recorded two separate statements of accused Jay Haresh Somaiya U/s U/s 67 of the Act and there are material contradictions in the said statements with respect to the quantity of contraband, since in his statement dated 05.11.2017, Ex.PW-9/A the quantity is mentioned as 1 Kg and in statement dated 08.11.2017, Ex.PW- 3/S5 the same was increased to 6.2 Kg. The case of accused Jay Haresh Somaiya is on better footing than the case of co-accused Gaurav Kumar, who was discharged by the Ld. Predecessor of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:47:39 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 31 of 72 this Court vide detailed order dated 17.01.2020. The said co- accused was given the clean chit by NCB itself.
43. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that there are material contradictions in the inter-se testimonies of the prosecution witnesses. PW-6 Sepoy Atul Kumar Shahi did not depose about the subsequent secret information received by PW-3 IO Anand Kumar or regarding any document being prepared at the spot. He also failed to mention about the independent witnesses joining the team and he could not identify accused Rafik and also failed to tell the name of accused Guljar, at the time of his examination before this Court.
44. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that PW-5 Sh. Banke Ram also did not mention about the subsequent secret information received by PW-3 IO Anand Kumar he also omitted the recovery of the ticket being seized by the NCB Officials or the train name or number. He had categorically deposed in his cross- examination that he was instructed by PW-14 Superintendent Ms. Tulika Morang to join the raiding team, however, when PW-14 Superintendent Ms. Tulika Morang was cross-examined she had categorically deposed that she had instructed PW-3 IO Anand Kumar to constitute a team and she did not remember as to who were the members of the raiding team.
45. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that there are serious Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:47:46 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 32 of 72 material contradictions in the testimonies of the two independent witnesses. PW-8 Sh. Sandeep Kumar had deposed that the trolley bag, from which the alleged recoveries were made, was recovered from accused Rafik. The said testimony is running counter to the entire case of the NCB, since the bag was shown to be carried by accused Ram Dev and not Rafik. The manner in which he could not depose anything during the pre-lunch session on 02.03.2023 and he narrating the entire case of the prosecution in the post lunch session has raised serious doubts about his credibility as a witness.
46. It is further submitted by the Ld. Counsel for the accused Rafik, Guljar and Jay Haresh Somaiya that the second independent witness PW-11 Sh. Prem Narayan had deposed that the ticket in question, Ex.PW-3/C was being carried by accused Ram Dev and the same was a waiting ticket, however as per the panchnama, the ticket was handed over by accused Rafik. Therefore, his testimony has created further dents on the case of the prosecution.
47. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that the entire case of the prosecution is highly unbelievable owing to the material discrepancies in the timeline of the documents relied upon by the NCB itself. As per the complaint, on 06.11.2017 at about 05:45 hours, the NCB team allegedly reached the residence of Bebo Ram at Village Choj, Manikaran, HP and found accused Jay Haresh Somaiya there. The said accused was allegedly examined at 07:15 AM on the same day and he had allegedly revealed that he had used accused Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 33 of 72 2025.11.24 11:47:52 +0530 Guljar and Rafik as the carriers and he had purchased 01 Kg of charas from accused Neel Chand and one Purshotam @ Kaku Bhai of Malana. He had alleged that he had deposited the money the illicit charas in the bank accounts of accused Neel Chand and his family members including accused Ramesh Kumar. In pursuance of his disclosure statement, the NCB Officials reached the house of accused Ramesh Kumar, however no recovery of any contraband was made from him. Except for the statements U/s 67 of the Act, there is no incriminating material against accused Ramesh Kumar and the said statements are devoid of any evidentiary value.
48. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that even if the contents of accused Ramesh Kumar's statement U/s 67 of the Act are accepted as gospel of truth, the same is also not incriminating in nature, since he had merely revealed that his father accused Neel Chand was involved in the illicit business of charas and nowhere did he disclosed his own complicity. The said statement is completely exculpatory in nature. There is no link established between him and the recovered contraband.
49. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that the bank account's statement of the bank account of accused, Ex.PW-3/S12(colly) is inadmissible in evidence, since it is merely a certified copy of the records and it was not accompanied by the mandatory certificate U/s 2 A of the Banker's Book of Evidence Act, 1891 or/and Section 65-B of Indian Evidence Act, 1872. The Ld. Counsel has placed relieance Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 34 of 72 2025.11.24 11:47:59 +0530 on the decision of Hon'ble High Court of Delhi in 'Om Prakash v. CBI' 2017 SCC OnLine Del 10249.
50. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that the entire case of prosecution against accused Ramesh Kumar was hinging around the bank statement, however no bank official from the concerned bank was examined by the prosecution. The said bank statement Ex.PW-3/S12 (colly) was merely brought on record through the formal witness i.e. PW-3 IO Anand Kumar. The mere fact of exhibiting the said document does not prove it in accordance with the law. The Ld. Counsel has placed the reliance on the decision of the Hon'ble Supreme Court of India in 'Malay Kumar Ganguly v. Dr. Sukumar Mukherjee', (2009) 9 SCC 221.
51. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that even if the said bank statements were proved in accordance with law, the same still cannot be used to prove the complicity of accused Ramesh Kumar in the alleged offence, since Section 34 of Indian Evidence Act is categorical in nature and even if the said Books of Accounts/bank account stgatement be proved, there is still requirement of other evidence to prove an allegation with respect to the contents of the said statements. Merely because the bank statement reflected cash deposits, does not ipso facto translate that the transactions were related to the offence in question. The Ld. Counsel placed reliance on the decision of Hon'ble Supreme Court of India in 'CBI v. V.C Shukla & Ors.', (1998) 3 SCC 410.
Digitally signed by ATUL AHLAWAT ATUL Date:
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SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 35 of 72
52. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that the circumstance surrounding the arrests of accused Ramesh Kumar are highly doubtful and he was illegally arrested by the NCB Officials. As per his arrest memo, Ex.PW- 9/H, he was arrested on 06.11.2017 at 01:45 PM, however the same is contradicted by the entries made in rojnamcha register of Police Post, Manikaran, Ex.DW-1/A and Ex.DW-1/B, which clearly reflects that the accused was brought to the Police Chowki in custody at 06:00 AM and was taken from the Chowki at 06:10 AM on 06.11.2017. The Defense had also brought on record, the entry Ex.DW-1/C regarding the complaint filed by the mother of accused Ramesh Kumar regarding her son being illegally picked up from their residence at around 05:00 AM. The said entries run counter to the testimony of the Arresting Officer PW-9 Shailender Kumar, who had deposed in his cross- examination that the NCB team reached the house of accused Ramesh Kumar at around 10:30-11:00 AM on 06.11.2017 and notice was served U/s 67 of the Act to him at about 11:00-11:30 AM.
53. It is further submitted by the Ld. Counsel for the accused Ramesh Kumar that the call details records of the mobile phone of the accused Ramesh Kumar bearing no. 8894353050 clearly reflects that there are no calls exchanged between him and other accused persons. Furthermore, there are no chats or messages between him and other accused persons. Therefore, the entire case of him being part of the criminal conspiracy could not be proved by the prosecution.
Digitally signed by ATUL AHLAWATATUL AHLAWAT Date:
2025.11.24 11:48:13 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 36 of 72 Relevant Law and Case Laws:
54. In the background of the above, before discussing the evidence brought on record in the present case, it is pertinent to point out that the accused person can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr", Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
55. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary.
"Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Rajesh Yadav & Anr. Vs. State of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 37 of 72 2025.11.24 11:48:19 +0530 U.P", Criminal Appeal No. 339-340 of 2014, date of decision 04.02.2022.
56. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
57. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
58. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:48:26 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 38 of 72 evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
59. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
60. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
61. The word "Prudent" has not been defined under the Act.
Digitally
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ATUL AHLAWAT
AHLAWAT Date:
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When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
62. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domaine.
63. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 40 of 72 AHLAWAT Date:
2025.11.24 11:49:12 +0530 wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras" , 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted".
Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 41 of 72 AHLAWAT Date:
2025.11.24 11:49:30 +0530 presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 42 of 72 AHLAWAT Date:
2025.11.24 11:49:53 +0530 difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 43 of 72 AHLAWAT Date:
2025.11.24 11:50:01 +0530 reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
Appreciation of Evidence:
64. Section 8 of NDPS Act,1985 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 Digitally signed by ATUL AHLAWAT ATUL Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 44 of 72 AHLAWAT 2025.11.24 11:50:08 +0530 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 is mine).
65. As per the aforementioned Section 8, possession of all narcotic drugs is prohibited. The term "narcotic drugs" is defined in Section 2(xiv) of the Act as under:
"(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;"
66. As per the definition, 'narcotic drugs' includes cannabis (hemp). Therefore, drug containing charas and having THC i.e. Tetrahydrocannabinol is included in the said definition and the possession of the same is prohibited by Section 8 of NDPS Act,1985.
67. 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:
"Section 2 (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;"Digitally signed by ATUL AHLAWAT
ATUL AHLAWAT Date:
2025.11.24 11:50:16 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 45 of 72 Section 2 (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."
68. The notification specifying small quantity & commercial quantity vide SO 1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'charas'. As per the said notification, the small quantity for charas is "100 grams" and commercial quantity is "01 Kg".
69. In order to prove the charges u/s. 20(b)(ii)(C) of the NDPS Act, 1985, the prosecution is required to prove the following facts:
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was containing
charas/hashish.
(4) That the quantity of the contraband was more
than the commercial quantity.
70. 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,1985. The investigating agency must adhere strictly to the Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 46 of 72 AHLAWAT Date:
2025.11.24 11:50:23 +0530 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.
71. In "State of Punjab vs. Balbir Singh", (1994) 3 SCC 299, the Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 47 of 72 2025.11.24 11:50:30 +0530 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 along Digitally signed by ATUL SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 48 of 72 ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:50:36 +0530 with such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the 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 Digitally signed by ATUL SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 49 of 72 AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:50:42 +0530 fabrication of evidence after arrest or seizure."
72. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act, 1985 has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act, it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden.
To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
73. It was held by the Hon'ble Apex Court in "Gaunter Edwin Kircher Vs The State of Goa" (1993) 3 SCC 145 that the provisions of the NDPS Act, 1985 are very stringent, hence, the extent of burden of proof that the prosecution has to meet is that it has to prove the foundational facts beyond reasonable doubt and the said burden is very onerous. More serious the offence, stricter the degree of proof.
Receipt of Secret Information and constitution of the raiding team :
74. It has come in the testimony of PW-12 Inspector Rajeev Sahrawat, PW-3 IO Anand Kumar and PW-14 Superintendent Digitally signed by ATUL SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 50 of 72 AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:50:49 +0530 Ms. Tulika Morang that the secret information, Ex.PW-3/A was recorded on 05.11.2017, however the time of the secret informer giving the said information to PW-12 Inspector Rajeev Sahrawat is not mentioned in the information, Ex.PW-3/A. The said information was passed on telephonically to PW-14 Superintendent Ms. Tulika Morang, even prior to the same being reduced into writing by PW-12 Inspector Rajeev Sahrawat. As per the testimony of PW-3 IO Anand Kumar, he had categorically deposed during his cross-examination that after he had shared the secret information with his superior, PW-14 Superintendent Ms. Tulika Morang, the authorization was given to PW-3 IO Anand Kumar to constitute the team, however no authorization to arrest and search was given by the concerned Superintendent, NCB. There is no authorization given qua the search of the alleged suspects, who were specifically named and the authorization did not mention the place of the intended search. The said authorization given by PW-14 Superintendent Ms. Tulika Morang is not following the mandate of Section 41(2) of the Act, since she had categorically deposed at the time of her cross- examination that "During the conversation between Anand Kumar and me, neither I gave any search authorization to IO Anand Kumar nor IO Anand Kumar asked for the same". However, in the facts of the present case, since the search, seizure and arrest was conducted in a public place i.e. the Railway Station, which was accessible to the members of public and therefore, it fell within the ambit of the phrase "public place", as defined in the explanation appended to Section 43 of the Act. Therefore, Section 41 (2) and Section 42 of the Act has not application to the facts of the present case. Reliance is placed Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 51 of 72 AHLAWAT Date:
2025.11.24 11:50:55 +0530 on the decision of Hon'ble Supreme Court of India in 'S.K. Raju @ Abdul Haque @ Jagga v. The State of West Bengal', (2018) 9 SCC 708.
75. Although, the notices issued to accused Rafik, Guljar and Ram Dev, they were not in accordance with the mandate of Section 50 of the Act, since the essential word 'nearest' was not mentioned before Magistrate/Gazetted Officer, however since the present case does not pertain to any recovery effected from the personal search of the accused persons and the same is qua the recovery effected from the bag, therefore, the mere fact that there was non-compliance of Section 50 of the Act as far as 'personal search' was concerned, no benefit can be extended so as to invalidate the effect of recovery from the bag. Reliance is placed on the decision of the Hon'ble Supreme Court of India in 'State of Punjab v. Baljinder Singh & Anr.', Criminal Appeal No. 1565-66 of 2019 date of decision 15.10.2019 (3 Judge Bench) and 'Ranjan Kumar Chadha v. State of Himachal Pradesh', 2023 SCC OnLine SC 1262.
76. The panchnama proceedings, Ex.PW-3/B clearly reflects that after accused Rafik, Guljar and Ram Dev were initially intercepted, the NCB Officials introduced themselves and informed the accused persons about the secret information. PW-3 IO Anand Kumar asked the accused persons about their tickets and identity related documents. As per the panchnama, accused Rafik informed about the e-ticket bearing PNR No. 2500721416 for train no. 12954, from Hazarat Nizamuddin to Mumbai Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 52 of 72 AHLAWAT Date:
2025.11.24 11:51:11 +0530 Central, which was issued in the name of Rafik and Guljar. The said train ticket, Ex.PW-3/C was allegedly seized by the IO on 05.11.2017 itself and same bears the signatures of accused Rafik, Guljar and Ram Dev, alongwith the signatures of the independent witnesses, PW-8 Sh. Sandeep Kumar and PW-11 Sh. Ram Narayan. All the said persons had duly mentioned the date under their signatures as '05.11.2017'. However, careful perusal of the document, Ex.PW-3/C reflects that on the said document, the ticket printing time is mentioned as '06-Nov-2017 15:45:00 HRS' (emphasis supplied is mine). Therefore, the document which was printed on 06.11.2017 could not have been seized by the IO on 05.11.2017 itself, therefore the same has created doubts of suspicion on the entire panchnama proceedings and a severe dent is created on the prosecution story. Therefore, the benefit of the same must go to the accused persons.
Recovery of the contraband, chain of custody and proceedings u/s 52A of the Act.
77. As per the case of prosecution, the contraband in question i.e. 6.200 Kg of charas was recovered from the bag which was carried by accused Ram Dev. The said accused was discharged by the Ld. Predecessor of this Court vide order dated 17.01.2020. It was his statement recorded in the panchnama that the bag in question belonged to accused Rafik, that the alleged recoveries were pinned to accused Rafik and Guljar. The testimony of the independent witness PW-8 Sh. Sandeep Kumar, wherein he had specifically deposed during his examination-in- chief that 'The traully bag which was the possession of Rafik was Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 53 of 72 AHLAWAT Date:
2025.11.24 11:51:19 +0530 examined, same was found containing cloths, blankets, etc. beside that packets were also recovered from the bottom of the bag alongwith card board after the card board was separated'. The said testimony of the independent witness of recovery and seizure has further dented the case of the prosecution, regarding the possession of the bag in question, from which the contraband was recovered.
78. It has categorically come in the testimony of all the prosecution witnesses that there was recovery of 27 packets containing charas. The total weight of the recovered substances from all 27 packets came out to be 6.200 Kg and the contents of the entire substance from the said 27 packets were homogeneously mixed with each other, after the small quantity from each packet was tested one by one and they had all come out positive for charas in the field testing kit. The NCB ought to have adopted the procedure outlined in para no. 2.4 of the Standing Order 1/89 and para 1.7 (a) of Standing Order 1/88 by drawing sample in duplicate from each of the 27 packets separately and then sending the samples for testing. The contents of all the 27 packets ought not to have been mixed with each other and the representative packets from each individual ought to have been taken. Once the representative samples were drawn from each individual packet, then such representative packets were to be mixed together to make a composite whole, out of which a further sample was to be drawn as a representative sample of this 'lot of 27 packets'. The Standing Order nowhere provides that the contents of all the packages were to be mixed, which has been done in the present case. Reliance is placed on Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 54 of 72 AHLAWAT Date:
2025.11.24 11:51:27 +0530 the decision of the Hon'ble High Court of Delhi in 'Amani Fidel Chris v. NCB', Criminal Appeal No. 1027/2015, date of decision 13.03.2020, wherein the decisions of the Hon'ble Supreme Court of India in 'Noor Agha v. State of Punjab', (2008) 16 SCC 417; 'Union of India & Ors. v. Bal Mukund & Ors', (2009) 12 SCC 161; Gaunter Edwin Kircher (Supra) and decision of Hon'ble High Court of Delhi in 'Edward Khimani Kamau v. NCB', 2015 SCC OnLine Del 9860.
79. The prosecution has been completely silent as to why no application was made before the Court for conducting the proceedings U/s 52 A of the Act. It is not disputed that IO never made any efforts to move an application before the Ld. Magistrate u/s 52-A of the Act. The case property was not produced before the Ld. Magistrate and the sampling process was neither carried out there, nor the sampling done earlier was certified by the Ld. Magistrate.
80. Section 52-A of the Act was inserted vide an amendment on 29.05.1989 with the intention of laying a procedure for effective management of the seized contraband substances. In this endeavor, S.O. no. 1 of 88 dated 15.03.1988; S.O. no.2 of 88 dated 11.04.1988; S.O. no. 1 of 89 dated 13.06.1989 and the notifications dated 10.05.2007 and 16.10.2015, were issued. These standing orders were later repealed after the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 came into force. The said 2002 rules have now consolidated the entire framework and procedure to be followed. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:51:35 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 55 of 72
81. The scope of Section 52-A of the Act was extended to serve the broader purpose of strengthening the evidentiary framework under the Act and to enhance the credibility and reliability of evidence presented during trial. However, the breach or deviation in the procedure does not render the process carried out to be illegal and it is to be treated as mere irregularity. The non compliance of Section 52-A cannot be the ground to acquit the accused, if there is sufficient material to establish the search and seizure of the contraband. Reliance is placed upon the decision of the Hon'ble Apex Court in "NCB Vs Kashif",2024 SCC OnLine SC 3848.
82. In "Khet Singh Vs UOI" (2002) 4 SCC 380, the Hon'ble Supreme Court had held that in certain circumstances, the investigating agency may not be able to follow the guidelines to the letter, and due to such procedural irregularity, the other evidence collected will not become inadmissible and the Trial Court has to consider all the circumstances and find out whether any serious prejudice is caused to the accused or not. Reliance is also place upon "State of Punjab Vs Makhan Chand", (2004) 3 SCC 453.
83. The non compliance of section 52-A may be fatal to the case of the prosecution, only if it goes to the root of the matter. Section 52-A is only a procedural provision and does not lay down the evidentiary rules for proving seizure or recovery, nor does it dictate in the manner in which the evidence is to be led during the trial. It is the general rules of evidence, as enshrined in Digitally signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.11.24 11:51:53 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 56 of 72 the Indian Evidence Act, 1872 that governs how the seizure and recovery may be proved.
84. Section 52-A (4) created a deeming fiction wherein it creates a new form of primary evidence. However, it does not imply that the other evidence is original is excluded as primary evidence. In absence of compliance of the section 52-A of the Act, the Court cannot simply overlook other cogent evidence in the form of seized substance itself and the testimonies of the witnesses examined. Reliance is placed upon the decision of Hon'ble Apex Court in "Bharat Aambale Vs. The State of Chhattisgarh", Criminal Appeal No. 250/2025 dated 06.01.2025, Neutral Citation, 2025 INSC 78.
85. As far as the burden of proof of non-compliance of the said provision, mere assertion of the accused that there has been non- compliance is not sufficient. The initial burden will always be on the accused to show the non-compliance and only when he is able to discharge it by proving it on preponderance of probabilities, then only the onus shall shift to the prosecution to prove beyond reasonable doubt through cogent evidence that such non-compliance did not affect the case of the accused persons and they cannot be acquitted only on the said ground of Section 52 A proceedings not being conducted before the concerned Court of Ld. Magistrate. However, in the present case, the drawing of samples neither conforms to the procedure prescribed U/s 52 A of NDPS Act, nor under the Standing Orders. Therefore, in the considered opinion of this Court, the samples sent to CRCL were not the representative samples, since the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 57 of 72 2025.11.24 11:52:00 +0530 sanctity of the case property was completely lost and the entire trial against the accused persons has vitiated.
86. Through the testimony of PW-6 Sepoy Atul Kumar Shahi, PW-14 Superintendent Ms. Tulika Morang, the prosecution has substantially proved the chain of custody of the samples in question. The FSL report, Ex.PW-1/B, which was brought on record from the testimony of PW-1 Dr. T.C Tanwar and PW-13 Sh. Anil N. Mahindrakar, the prosecution has also proved that the recovered substance was charas. However, merely because the FSL result has come out positive, does not in itself translate that the contraband in question was recovered from the possession of the accused Rafik.
87. The entire case of the prosecution is centered around the fact that accused Rafik and Guljar were traveling to Mumbai on 05.11.2017. As per the PW-3 IO Anand Kumar and other members of the raiding team, when the accused persons alongwith the third accused namely Ram Dev were intercepted at Platform No. 3, while they were coming down the stairs, they were asked to produce the travel ticket and identity documents. To the said requisition made by PW-3 IO Anand Kumar, accused Rafik showed an e-ticket which was issued for Train No. 12954 from Hazarat Nizamuddin to Mumbai Central and the ticket was having the name of Rafik and Guljar. The said ticket was seized by the IO and it was exhibited as Ex.PW-3/C. The mention of the said ticket is also there in the panchnama, Ex.PW-3/B. The seizure of the ticket was also deposed by the independent witness PW-11 Head Constable Prem Narayan, wherein he had Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 58 of 72 AHLAWAT Date:
2025.11.24 11:52:07 +0530 categorically mentioned that the e-ticket of accused Rafik and Guljar was waiting ticket and same was taken in possession by the NCB Officials, prior to opening and examining the green color trolley bag. The said ticket in question was seized on 05.11.2017 and it bears the signatures of the accused persons and the independent witnesses and they had all mentioned the date of appending the signatures as 05.11.2017. However, the said ticket was printed on 06.11.2017 and it has cast shadow of doubts on the entire prosecution case.
88. The IO did not make any efforts to get the photography and the videography of the seizure proceedings, therefore, serious doubts are created on the entire seizure proceedings.
Reliance is placed on the decision of the Hon'ble Supreme Court of India in "Shafhi Mohammad Vs. State of Himachal Pradesh" 2018 (1) SC Cr. R. 473.
Presumption U/s 54 and Section 35 of the Act:
89. 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"
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:52:14 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 59 of 72 (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:
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. Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:52:22 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 60 of 72 XXXXX
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 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:52:31 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 61 of 72 prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery 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."
90. In "Noor Aga v. State of Punjab and Anr." (2008) 16 SCC 417, the Hon'ble Supreme Court noted Section 35 of the NDPS Act,1985 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,1985 which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
91. Furthermore, the 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 Digitally signed by ATUL ATUL AHLAWAT SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 62 of 72 AHLAWAT Date:
2025.11.24 11:52:38 +0530 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 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."
92. It is not the case of the prosecution that the bag in question from which the alleged recoveries were effected from was in the conscious possession of accused Rafik or Guljar. The said bag was purportedly being carried by the third person namely Ram Dev, who was apparently the travel agent who had come to drop the accused persons to the station. The said person was discharged by the Ld. Predecessor of this Court vide order dated Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:52:46 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 63 of 72 +0530 17.01.2020. The testimony of the independent search and seizure witness namely PW-8 Inspector Sandeep Kumar, wherein he had categorically deposed that the trolley bag was in possession of accused Rafik had further created suspicion on the prosecution's case and the benefit of the same must go to the accused persons.
It was the bounden duty of the prosecution to establish the foundational facts with respect to the conscious possession of the bag in question, which it had failed to do so. The issue of the ticket and in whose possession was the said bag, could not be proved beyond reasonable doubt by the prosecution.
93. As far as accused Jay Haresh Somaiya is concerned, the involvement of the said accused came in the disclosure statements of co-accused Rafik and Guljar. The said secret information was forwarded to the Zonal Director, NCB, Chandigarh Zonal Unit and the PW-3 IO Anand Kumar had issued a request letter to carry a follow-up action and to intercept accused Jay Haresh Somaiya, however no explanation is offered by the NCB, as to what investigation was done regarding the alleged recipient of the recovered contraband namely Abbas Hussain. The letter issued by the Zonal Director of NCB, DZU was also not proved in accordance with law, since the signatures of the concerned person who had authorized Superintendent Sh. Kuldeep Sharma was not proved, as PW-3 IO Anand Kumar could not remember the name of the said signatory. The author of the said document was not examined by the NCB.
94. Accused Jay Haresh Somaiya was arrested on 06.11.2017 at 09:45 AM, as per the arrest memo Ex.PW-9/D. There is no Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.24 11:52:54 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 64 of 72 recovery of any contraband effected from his possession or at his instance. The NCB had recorded two separate statements of his U/s 67 of the Act, in which there are material contradictions with respect to the quantity of contraband in the first statement, Ex.PW-9/C the accused had allegedly stated before the IO that he used accused Rafik and Guljar as carriers for illicit trafficking of 01 Kg of charas, which he had procured from Neel Chand and Purshotam @ Kalu. However, in his second statement U/s 67 of the Act, he had allegedly stated that this time charas was collected from Neel Chand and Kalu Ram, wherein 3.200 Kg was sourced from Kalu Ram and remaining 03 Kg was sourced from Neel Chand. The first statement was recorded by his Arresting Officer PW-9 Sh. Shailender Prasad and same was not aligning with the case of the NCB, DZU and the second statement was recorded on 08.11.2017 by PW-3 IO Anand Kumar, so as to cover up the lapse in the first statement to suit the case of the prosecution. There are no call records, intercepted calls or messages exchanged between accused Jay Haresh Somaiya and accused Rafik or Guljar. Except for the disclosure statements of the co-accused persons, there is no incriminating material brought on record qua accused Jay Haresh Somaiya.
95. As far as, accused Ramesh Kumar is concerned, there is no incriminating material brought on record against him, except for the alleged disclosure statement of co-accused Jay Haresh Somaiya, which in itself has no evidentiary value. The CDRs of his mobile number 8894353050 does not show any link with any of the co-accused persons. The NCB was relying upon one entry of cash deposit made on 10.10.2017 for Rs.30,000/- by one Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 65 of 72 11:53:09 +0530 Mohammad Nasim. It is the case of NCB that the said money was deposited in the bank account at the behest of the accused Jay Haresh Somaiya, however there was no evidence to substantiate the said claims. The person who deposited the money was not examined and he was not made a witness. The bank account's statements were brought on record through the testimony of the formal witness i.e. the IO. It was not accompanied by any mandatory certificate U/s 2 A of the Banker's Book of Evidence Act, 1891 or/and Section 65-B of Indian Evidence Act, 1872. NCB did not examine the concerned official from the bank and the said bank account statement was not proved in accordance with the law. Furthermore, it had categorically come in the cross-examination of PW-3 IO Anand Kumar that 'since bank officers of the bank account of Ramesh Kumar had provided statement of account of accused Ramesh Kumar, therefore, I did not feel the need to examine bank officers in regard to cash deposit in the said account as the said investigation was based on documents. I did not call any further documents including cash deposit slips in regard to the bank account of accused Ramesh Kumar because some of cash deposits were made through online mechanical system. I did not investigate any independent witness regarding cash deposits in bank account of Ramesh Kumar'.
96. The circumstances following the arrest of accused Ramesh Kumar are also nothing short of extraordinary. As per his arrest memo, he was apparently arrested on 06.11.2017 at 01:45 PM, after the NCB Official had issued the notice U/s 67 of the Act and that he had voluntarily appeared before the NCB Officials in Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 66 of 72 2025.11.24 11:53:19 +0530 pursuance of the said notice at the local hotel, where the NCB, CZU Team was camping. There is no mention of any time of reporting in the said notice. However, as per the rojnamcha entries made in the register of Police Post, Manikaran, Ex.DW- 1/A, when the NCB Team reached the Police Post at 06:00 AM, the accused Ramesh was already with them and he left with the NCB Officials at 06:10 AM on the same day i.e. 06.11.2017. Therefore, serious doubts are created as to the veracity of the documents prepared by the NCB and the possibility of the same being ante time and ante dated, cannot be ruled out.
Conclusion and Findings:
97. The mystery surrounding the seizure of the train ticket and the date mentioned on the said ticket qua its print out has struck a fatal blow on the case of the prosecution. The case of the NCB was that the secret information was received regarding two suspects, who were named specifically would be traveling from Hazarat Nizamuddin Railway Station to Mumbai. The said ticket although being printed on 06.11.2017 at 03:45 pm, was seized by the NCB Officials on 05.11.2017 itself. The said discrepancy has gone to the root of the matter, since the presence of the accused Rafik and Guljar at the said Railway Station on 05.11.2017 is shrouded under suspicion.
98. There are material contradictions in the testimony of independent public witness i.e. PW-8 Inspector Sandeep Kumar and the other members of the raiding team, including the second independent public witness namely PW-11 Head Constable Ram Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:53:25 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 67 of 72 Narayan. While, all the other witnesses deposed that the bag in question was in the possession of co-accused Ram Dev, however, PW-8 had deposed otherwise and stated that the bag which was in the possession of accused Rafik was examined and it was found containing the contraband in question.
99. There has been complete non-compliance of the guidelines contained in Standing Orders 1/88 and 1/89. Furthermore, no proceedings U/s 52 A of the Act, were conducted before the Ld. MM and no explanation to the said effect was offered by the prosecution. The IO had homogeneously mixed the contents of all the 27 packets and representative samples were not drawn from each individual packet. The entire sampling process was done in flagrant disregard of Para No. 2.4 of SO No. 1/89 and Para No. 1.7 (a) of SO No. 1/88. Since, the samples which were sent to the CRCL were not the representative samples of the contents of all the packets recovered in the present case, the sanctity of the case property was completely lost and the FSL report was reduced to a mere piece of paper.
100. There was no independent corroborative material to incriminate accused Jay Haresh Somaiya and Ramesh Kumar, since no recovery was effected from their possession or at their instance. The two separate statements of accused Jay Haresh Somaiya U/s 67 of the Act had material contradictions. There was no independent link evidence brought on record to prove the role of accused Jay Haresh Somaiya and accused Ramesh Kumar.
101. The bank account statements of accused Ramesh Kumar Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.24 11:53:32 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 68 of 72 was not proved in accordance with law. It was not accompanied with the mandatory certificate U/s 2 A of the Banker's Book Evidence Act,1891 or Section 65-B of Indian Evidence Act, 1872. It was merely brought on record through the testimony of the formal witness i.e. the IO and the concerned bank official was never examined before this Court. Even if, the said statement was proved in accordance with law, same would not have been incriminating, since there is no testimony to the effect that the third person who had deposited some amount of cash in the account of accused Ramesh Kumar had deposited the said amount at the behest of accused Jay Haresh Somaiya. The said accused persons cannot be convicted only on the basis of their disclosure statements and the statements of the co-accused persons.
102. The circumstances surrounding the timeline of the arrest of accused Ramesh Kumar and Jay Haresh Somaiya has made the matter worse for the prosecuting agency, since the documents which were brought on record had created suspicion that they could be ante time and ante dated, therefore the entire case of NCB was shrouded under deep suspicion.
103. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.24 11:53:39 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 69 of 72 with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra"
AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P." (1996) 10 SCC 193.
104. The statutory presumption as enshrined u/s 35 and 54 of the Act required the prosecution to prove the foundational facts of conscious possession, prior to the presumption being kicked in, which the prosecution has miserably failed to do so in the present case.
105. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam"
(2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
106. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favorable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in "Kali Ram Vs. State of Himanchal Pradesh" AIR 1973 SC 2773. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:53:46 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 70 of 72
107. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, this Court is of the view that the evidence brought on record is not worthy of acceptance and there is a shadow of doubt cast upon it. The testimonies of the prosecution witnesses are not of sterling character and the lapses on part of the IO in conducting faulty investigation and non compliance of Section 52 A of the Act and the lapses on the part of the prosecution in not proving the necessary links of their case, has led to only one irresistible conclusion that the prosecution story is not worthy of inspiring any confidence. Hence, it strikes at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused persons namely Rafik, S/o Sh. Hasan Deen; accused Guljar, S/o Sh. Mohammad Nawab; accused Jay Haresh Somaiya, S/o Sh. Haresh Somaiya and accused Ramesh Kumar, S/o Sh. Neel Chand are hereby acquitted of the charges for committing the offences punishable u/s 20(b)(ii)(C) of NDPS Act, 1985. Hence, they shall be set at liberty.
108. The case property be disposed off in accordance with the law and the rules prescribed.
109. The accused persons are directed to furnish their bail bonds u/s 437-A Cr.P.C, 1973, if not already done. All the previous bail bonds/surety bonds except for bail bonds u/s 437-A Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.24 11:53:54 +0530 SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 71 of 72 Cr.P.C 1973 are hereby canceled and the surety(s) stands discharged. The documents furnished by the surety(s) shall be released to them as per rules. The bail bonds u/s 437-A Cr.P.C, 1973 shall remain in force for a period of six months from today.
110. The present judgment is pronounced only qua accused Rafik, S/o Sh. Hasan Deen; accused Guljar, S/o Sh. Mohammad Nawab; accused Jay Haresh Somaiya, S/o Sh. Haresh Somaiya and accused Ramesh Kumar, S/o Sh. Neel Chand and since, accused Neel Chand @ Nillu was declared as a Proclaimed Person, the proceedings qua him shall start from the stage he was declared as a Proclaimed Person, after he is arrested and produced before this Court.
111. File be consigned to the record room, after due compliance.
Announced in the open court on 24.11.2025. This judgment consists of 72 pages and all of them have been digitally signed by me.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.11.24
11:54:00 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/24.11.2025
SC No.107-2018 NCB v. RAFIK & ORS CNR No. DLND010038122018 page no. 72 of 72