Delhi District Court
Customs vs Ms Daniella Mukiibi on 18 March, 2026
SC no. 476-2022
Customs Vs Daniella Mukiibi
IN THE COURT OF MANU GOEL KHARB:
SPECIAL JUDGE (NDPS)-02 SOUTH-WEST DISTRICT
DWARKA COURTS:NEW DELHI
SC no. 476-2022
CNR No. DLSW01-006269-2022
File no. VIII(AP) (10) P&I/3297-A/Arrival/2021
Customs Vs Daniella Mukiibi
Through Dineshs Prasad D/o Mukiibi Moseso
Air Customs Officer, R/o Kiseni, Uganda,
IGI Airport, New Delhi Holder of Ugandan Passport
No. A00417632 issued on
22.05.2021
Digitally
Date of Commission of : 21.12.2021
signed by
MANU MANU
KHARB
GOEL
GOEL Date:
KHARB 18:02:41
2026.03.18
+0530
offence
Offence complained of : 21(c)/23(c)/8 NDPS Act
Plea of accused : Pleaded not guilty and claimed
trial
Date of Institution : 01.07.2022
Date when final arguments : 06.03.2026
heard
Date of Judgment : 18.03.2026
Final order : Acquittal
Argued by: Sh. Puneett Singhal, Ld. SPP for Customs
along with Ms. Geeta Rawat Advocate.
Ms. Tanya Khushwaha, Ld. Counsel for
accused.
Page no. 1 of 43
SC no. 476-2022
Customs Vs Daniella Mukiibi
JUDGMENT
INDEX S. No. PARTICULARS PAGE NO.
1. Introduction 2-4
2. Facts 4-9
3. Documents Exhibited 9-11
4. Prosecution Evidence 11-15 5. Admission/Denial of documents 15 6. Statement of accused persons under 16 section 313 of the Cr.P.C.
7. Arguments of prosecution 16-17
8. Arguments of defence 17-18 Digitally MANU GOEL signed by MANU GOEL KHARB 9. General Principle of Law 18 Date:
KHARB 2026.03.18 18:02:26 +0530 10. Presumption of culpable mental state 18-20 under section 35 NDPS Act
11. Compliance of Section 50 NDPS Act 21-30
12. Probative Value of Statement under section 31-34 67 NDPS Act
13. Absence of Independent Witness 34-37
14. Absence of Videography and Photography 37-40 of the proceedings
15. Other loopholes and gaps 40-42
16. Final Order Acquitted Introduction
1. The Central Board of Indirect Taxes is a statutory body under the department of Revenue, Ministry of Finance which oversees the administration of indirect taxes, Page no. 2 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi including Customs Duties, GST and Excise duties.
Currently, the Customs Department comes under the Department of Revenue. Apart from the collection of Customs Duty on International Airports, Sea ports, International Air Cargo Stations and International ICD's (Inlet Container Depots), the functions of customs also extend to prevention of smuggling on international airports, enforcing prohibition on contraband and regulating the import and export of goods.
2. With a focus on preventing smuggling and enforcing strict regulations regarding the importation of Digitally drugs, narcotics and psychotropic substances at signed by MANU MANU GOEL GOEL KHARB Date: international airports, the Air Intelligence Unit frequently KHARB 2026.03.18 18:02:27 +0530 intercepts contraband which is often concealed in luggage or swallowed as capsules and the individuals caught for smuggling are arrested under the NDPS Act 1985.
3. The complainant/customs acting under the provisions of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) recorded a complaint bearing File no. VIII(AP) (10) P&I/3297-A/Arrival/2021 under sections 8/21/23/29 NDPS Act and initiated an investigation in the matter which revealed that the accused Daniella Mukiibi imported Diacetylmorphine (Heroin) inside India in black colour checked in trolley bag kept in a yellow coloured paper bag Page no. 3 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi containing off white colour powdery/granules brought by accused.
4. Facts of the case:
4.1 The case of the Customs, in brief, is that on 21.12.2021, accused came to India by Flight no. FZ-620 from Uganda to Dubai carrying one black colour checked in trolley bag having tag no. FZ 729149. She was diverted for checking at X-ray machine kept at International Arrival Hall in routine manner and during scanning, some suspicious images were observed by the customs officials.
Two panch witnesses were called as Independent witnesses.
Digitally Officers on duty asked the accused, whether she was signed by MANU MANU GOEL GOEL KHARB Date: carrying any dutiable or contraband or prohibited goods, to KHARB 2026.03.18 18:02:43 +0530 which she replied in negative.
4.2 Accused along with her bag, was taken to the Customs Preventive Room for her personal search and examination of her baggage and the panch witnesses Ravi Kumar and Mukesh Kumar were called to the Custom Preventive Room to witness the search proceeding of the accused.
4.3 Thereafter, Notice under Section 102 of the Customs Act, 1962 and notice under Section 50 of the NDPS Act, 1985 were served upon accused by the Customs Officer, wherein she was informed that her personal search and search of her baggage could be conducted in the presence Page no. 4 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi of a Magistrate or a Gazetted Officer of Customs and the accused gave her consent on both the Notices itself that her personal and baggage search could be conducted by any Customs Officer.
4.4 Thereafter, ACO Geetika Chib made preliminary inquiries from the accused and her identity was established from her travel documents and passport. During personal search of accused, nothing objectionable was found, but while searching the black colour Trolley bag having FZ 729149, it was found that the said bag was abnormally heavy even after removing all her personal belongings and Digitally on checking the bag, off white colour powder/granules was signed by MANU MANU GOEL GOEL KHARB Date: found concealed in the side cavities of the said checked in KHARB 2026.03.18 18:02:29 +0530 bag.
4.5 The white powdery substance was tested with the help of FieldTesting Kit and the same tested positive for Heroin weighing 2080 grams (including weight of packing material, adhesive tapes and transparent plastic container) suspected to be narcotics substance. The net weight of the substance was found to be 2020 grams. The recovered substance was kept in a yellow colour paper bag and further kept in a transparent box and seized vide Detention Receipt no. 51536 dated 21.12.2021. The yellow paper bag weighed 20 grams (approx.) and transparent plastic container weighed 339 grams. The concealing material i.e. the black colour trolley bag was kept inside a brown colour carton Page no. 5 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi box which was then duly sealed and same was seized vide DR no. 51537 dated 21.12.2021.
4.6 Besides above, during personal and baggage search of accused, boarding pass of Dubai Airways Flight no. FZ620 dated 20.12.2021 from Uganda to Dubai and FZ 451 dated 21.12.2021 from Dubai to Delhi, one black colour used Samsung Note 8 Mobile ( in locked condition) having mobile no. +256-751060737, Uganda Passport no. A00417632 issued on 22.05.2021 having date of expiry 21.05.2031; Currency USD 100/-; one brown and white colour hand bag containing used personal effects.
Digitally signed by 4.7 Brass seal was got issued and after sealing the case MANU MANU KHARB GOEL GOEL Date:
KHARB 18:02:39 2026.03.18 property, seal was deposited back. Thereafter, all the +0530 pullandas were sealed with Customs Brass Seal bearing 'IGI Air Customs New Delhi T-2, Open A' and paper slip was affixed bearing dated signatures of the panchas, accused and seizing officer. The recovered contraband and concealing material were seized under section 43(a) of NDPS Act.
4.8 Panchanama dated 21.12.2021 was prepared by the Customs Officer, duly signed by panch witnesses, accused and seizing IO and the proceedings were explained in vernacular to panchas and accused.
4.9 Thereafter, statement of the accused was recorded under section 67 of the NDPS, Act, 1985 and the accused Page no. 6 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi was put under arrest after informing her grounds of her arrest. Intimation of her arrest was communicated to her family through phone and also to Ministry of External Affairs, New Delhi and also to High Commission of Uganda vide separate letters dated 21.12.2021. Seizure and arrest report under section 57 NDPS Act was prepared and put up before immediate superior officer. The accused was medically examined and produced before the court on
22.12.2021 from where she was remanded to J.C and case property was deposited in Non-valuable Godown.
4.10 Thereafter, the application under section 52-A of the NDPS Act 1985 was moved on 14.02.2022 and Digitally MANU signed by MANU GOEL KHARB proceedings in terms of section 52-A of N.D.P.S Act were GOEL Date:
KHARB 2026.03.18 18:02:35 +0530 conducted on 24.02.2022 and two representative samples SO1 and SD1 of 5 gms each were drawn. The samples and remnant case property were sealed with the seal of the court i.e. 'DA' and signed by the court and stepwise photographs of the proceedings were taken which were then attested on 03.03.2022. On conclusion of proceedings, the samples, envelopes and remaining sealed property was handed over to the Incharge Godown.
4.11 Sample Mark SO1 was sent to CRCL and as per report of Chemical examiner, the samples under reference answered positive for Diacetylmorphine (Heroin), along with 6-Monoacetylmorphine, Morphine, Codeine and Caffeine.
Page no. 7 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi 4.12 After completion of investigation, complaint/ charge sheet was filed against the accused under Sections 8/21/23/29 NDPS Act.
5. Cognizance was thereafter taken upon the complaint filed by Customs. Copy of complaint/ charge-sheet and annexed documents were supplied to accused in compliance of Section 207 CrPC. On 15.09.2022, charge for the offence punishable under Sections 21(c) and 23(c) read with section 8 NDPS Act was framed against the accused to which she pleaded not guilty and had claimed trial.
Digitally signed by 6. In the course of trial, customs examined 10 MANU MANU KHARB GOEL GOEL Date:
KHARB 18:02:37 2026.03.18 witnesses. Inadvertently, no witness was examined as PW6 +0530 and PW9 and the witnesses have been numbered wrongly. The witness numbers are not corrected as it will have a cascading effect on the exhibit numbers of the documents which have been exhibited by the respective prosecution witnesses in their testimony. The following witnesses were examined by Customs :-
PW1 Sh. Dinesh Prasad ACO PW2 Sh. Deepak Inspector PW3 Sh. Manoj Kumar Ram, Superintendent PW4 Ms. Geetika Chib, ACO PW5 Sh. Mukesh Kumar, Panch Witness PW7 Sh. Sandeep Monga, Assistant Chemical Examiner PW8 Sh. Basudeo Banerjee, Assistant Commissioner.
Page no. 8 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi PW10 Sh. T.R. Suresh Chemical Examiner (Grade-I), PW11 Sh. Sanjeev Kumar Chaddha, Godown Incharge PW12 Sh. Rakesh Kumar Yadav, Godown Incharge
7. Before proceeding to discuss the testimonies of complainant witnesses, it is relevant to note the exhibited documents and witnesses who exhibited the same which are given below :-
Witness Identification Description Exhibiting PW1 Dinesh Ex.PW1/A Summons under section 67 NDPS Prasad ACO Act issued to panch witness Ravi Kumar Ex.PW1/B Statement dated 09.06.2022 of Digitally signed by panch witness Ravi Kumar MANU MANU GOEL KHARB GOEL KHARB Date:
2026.03.18 Ex.PW1/C Summons under section 67 NDPS Act issued to panch witness Mukesh 18:02:39 +0530 Kumar Ex.PW1/D Statement dated 09.06.2022 of panch witness Mukesh Kumar Ex.PW1/E DR no. 63682 dated 09.06.2022 Ex.PW1/F DR no. 63683 dated 09.06.2022 Ex.PW1/G Original complaint PW2 Sh. Deepak Ex.PW2/A Letter dated 24.02.2022 for submission of representative samples Ex.PW2/B Receipt of deposit of sample PW3 Sh. Manoj Ex.PW3/A Summons under section 67 NDPS Kumar Ram ACO Act to the accused Ex.PW3/B Statement of accused under section 67 NDPS Act Ex.PW3/C Medical Examination of accused from RML Hospital PW4 Ms. Geetika Ex.PW4/A Letter to panch witness Mukesh Page no. 9 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi Chib ACO Kumar Ex. PW4/B Letter to panch witness Ravi Kumar Ex.PW4/C Notice under section 102 Customs Act to accused Ex.PW4/D Notice under section 50 NDPS Act Ex.PW4/E Personal search and baggage search of accused Ex.PW4/F DR no. 51536 Ex.PW4/G DR no. 51537 dated 21.12.2021 Ex.PW4/H Seal Impression sheet Ex.PW4/I Seizure memo dated 21.12.2021 under section 43(a) NDPS Act Ex.PW4/J Form 1 dated 21.12.2021 Ex.PW4/K Panchnama dated 21.12.2021 Digitally Ex.PW4/L Arrest Memo signed by MANU MANU GOEL KHARB GOEL Date: Ex.PW4/M Telephonic receipt KHARB 18:02:28 2026.03.18 +0530 Ex.PW4/N Jamatalashi of accused Ex.PW4/O Intimation regarding seizure of Assistant Commissioner Ex.PW4/P Arrest report written to Assistant Commissioner Ex.PW4/Q Application under section 52-A NDPS Act Ex.PW4/R Sampling proceedings Ex.PW4/S Test Memo in triplicate Ex.PW4/T Order of producing sampling proceedings Ex.PW4/U Photographs (colly) Ex.PW4/V DR Card no. 51537 Ex.PW4/W DR Card no. 69506 PW5 Sh. Mukesh Ex.PW5/A DR Receipt no. 51530 Kumar Panch witness Page no. 10 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi PW7 Sh. Sandeep Ex.PW7/A CRCL report dated 17.05.2022 Monga, Assistant Ex.PW7/B DR Card Chemical Examiner, CRCL PW8 Sh. Basudeo Ex.PW8/A Intimation of arrest to Director Banerjee, CPV Division, MEA, Delhi Assistant Ex.PW8/B Intimation of arrest to High Chemical Commissioner of Uganda Examiner, CRCL PW11 Sh. Sanjeev Ex.PW11/A Concealing material deposited vide Kumar Chaddha, Entry no. 17/2022 the then Godown Ex.PW11/B Jamatalasi of accused vide Entry Incharge no. 18/2021 Ex.PW11/C Deposition of case property after sampling PW12 Sh. Rakesh Ex.PW12/A Plastic box containing narcotic Kumar Yadav, the substance vide entry no. 179 then Godown Digitally signed by MANU MANU GOEL Incharge KHARB GOEL Date:
KHARB 18:02:36 2026.03.18 +0530
8. PROSECUTION EVIDENCE 8.1 PW1 ACO Dinesh Prasad issued summon Ex.PW1/A to panch witness Ravi Kumar and recorded his statement Ex. PW1/B. PW1 issued summons Ex.PW1/C to panch witness Mukesh Kumar and recorded his statement Ex.PW1/D. PW1 deposited jamatalshi articles of accused vide DR no. 63684 dated 09.06.2022 vide Ex.PW1/E. He also deposited samples received from CRCL in the Customs Godown vide DR no. 63683 Ex.PW1/F. PW1 also filed complaint Ex. PW1/G along with list of witnesses and documents.
Page no. 11 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi 8.2 PW2 ACO Deepak deposited samples at CRCL vide letter Ex. PW2/A and after depositing sample obtained receipt Ex.PW2/B. 8.3 PW3 is Assistant Customs Superintendent Manoj Kumar. He deposed that on 21.12.2021, ACO Geetika Chib apprehended one female passenger. Thereafter, notices under section 50 NDPS Act and 102 Customs Act were served upon accused and her personal and baggage search were conducted by ACO Geetika Chib and NDPS substance weighing 2020 grams was recovered from cavity of the baggage of accused. Accused was arrested and she was Digitally served notice under section 67 NDPS Act vide Ex. PW3/A signed by MANU MANU GOEL GOEL KHARB Date: and she tendered her voluntarily statement Ex.PW3/B. KHARB 2026.03.18 18:02:30 +0530 Accused was medically examined vide ME Ex. PW3/C. 8.4. PW4 ACO Geetika Chib is the Investigating Officer. She deposed about the interception of accused, the recovery and seizure proceedings, arrest of the accused and the entire investigation done by her in the present case which shall be discussed in detail in the discussion to follow. She also proved the documents prepared by her during investigation.
8.5 PW5 Mukesh Kumar is panch witness. He deposed that he was called by ACO Geetika Chib to join the investigation vide letter Ex.PW4/A. Some suspicious Page no. 12 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi images were seen during X-ray scanning of the black colour trolley bag and the accused was taken to Custom Preventive Room along with other panch witness. Notice under section 102 Customs Act Ex. PW4/C was issued and during baggage search of accused, off white colour powdery substance concealed inside the baggage was recovered which tested positive for Heroin. The substance was kept inside an envelope, wrapped with white cloth and sealed. Black colour trolley bag was also packed in brown colour corrugated box and sealed with custom plier seal and deposited in Custom Non Valuable Godown. He identified his signatures on panchnama Ex.PW4/A, DR receipts Digitally Ex.PW4/F & Ex.PW4/G, and DR receipt no. 51530 Ex.
signed by
MANU MANU GOEL
GOEL
KHARB
Date: PW5/A.
KHARB 2026.03.18
18:02:40
+0530
Ld. SPP for the customs put leading questions to witness after seeking permission of the court but the witness refused that notice under Section 50 NDPS Act was given to accused in his presence. The witness was cross-examined by Ld. SPP as he was not disclosing complete facts but he again state that he does not remember that notice of Section 50 NDPS Act was given to accused or not. Witness was duly cross-examined by Ld. SPP and then by the defence counsel.
8.6 PW7 Sandeep Monga and PW10 Sh. T R Suresh are the Chemical Examiners who examined the samples drawn in the present case. They deposed that on 28.02.2022, Inspector Deepak deposited samples mark SO1 at CRCL in Page no. 13 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi sealed intact condition duly sealed with the seal of 'DA'. PW7 received samples vide diary no. CLD 2579(N)/ 28.02.2022 Ex. PW2/B and samples were deposited in the Strong Room of CRCL. Thereafter, samples were taken out on 02.05.2022 from strong room for chemical analysis and on the basis of chemical, Chromatographic and Spectroscopic examination, the sample was found positive for Diacetylmorphine (Heroin) along with 6 Monoacetylmorphine, Morphine, Codeine and Caffeine. The test report is Ex. PW7/A. After analysis the remnant sample was sent to issuing authority in duly sealed condition. PW7 identified the remnant sample and proved Digitally it as Ex. PW7/B. signed by MANU MANU GOEL KHARB GOEL Date:
KHARB 2026.03.18 18:02:30 +0530 8.7 PW8 is Assistant Commissioner, Basudeo Banerjee.
He deposed that on 21.12.2021, upon request of ACO Geetika Chib, he issued custom brass seal and made entry Mark P4/A in the register. On the same day he received seizure report Ex.PW4/O and arrest report Ex.PW4/P. PW8 deposed that he sent intimation regarding arrest of accused to Director CPV Division, MEA, Delhi and High Commissioner of Uganda vide letters Ex.PW8/A and Ex. PW8/B. Copy of dispatch register vide entry at sl. no. 19480 and 19481 dated 22.12.2021 is Mark P8/A. On 24.02.2022, PW8 authorized ACO Deepak vide letter Ex. PW2/A to deposit the samples alongwith test memo with CRCL Pusa, Delhi.
Page no. 14 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi 8.8 PW11 Sajeev Kumar Chaddha is the then Godown Incharge (Non Valuable) on 11.02.2022. He deposed that on 11.02.2022, he received one brown colour box duly sealed with the seal of PAIGI and he deposited the same vide entry no. 17/2022 Ex.PW11/A. On the same day, he also received jamatalashi articles duly sealed with the seal of PA IGI vide entry no. 18/2022 Ex. PW11/B. On 24.02.2022, PW11 produced the case property for sampling and after sampling he was handed over the 02 samples mark SO1 and SD1 alongwith remaining case property duly sealed with the seal of 'DA' and same was handed over by Digitally him to Godown Incharge PW-12 ACS Rakesh Kumar Yadav signed by MANU MANU GOEL GOEL KHARB Date: and PW-12 deposited the same vide entry no. 22/2022 KHARB 2026.03.18 18:02:31 +0530 Ex.PW11/C. 8.9 PW12 Rakesh Kumar Yadav was the Godown Incharge on 21.12.2021. He deposed that on 21.12.2021, he received one plastic box containing 2020 grams Heroine in sealed condition wrapped with white cloth and he deposited the same vide entry no. 179 Ex. PW12/A. On 24.02.20222, he received two white colour envelopes containing samples mark SO1 and SD1 duly sealed with seal of 'DA' and deposited the same in godown vide entry no. 33/2022.
Admission and Denial of Documents U/Section 294 CrPC Page no. 15 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
9. Accused Daniella Mukiibi made statement under section 294 Cr.P.C. whereby she admitted documents i.e. proceedings under section 52A NDPS Act as Ex. A1. and photographs of proceedings under section 52A NDPS Act as Ex. A2 and ME of accused dated 22.12.2021 of RML Hospital as Ex. A3.
10. After examination of all the prosecution witnesses, prosecution evidence was closed vide order dated 08.08.2025.
Statement of Accused persons u/s 313 CrPC
11. Upon closure of evidence by the customs, the Digitally MANU signed by MANU GOEL KHARB statement of accused was recorded under Section 313 GOEL Date:
KHARB 2026.03.18 18:02:34 +0530 CrPC wherein she denied all the incriminating evidence put to her and denied all the proceedings of recovery and seizure. She stated that no notice was served upon her and her signatures were taken on pre-typed papers. She stated that grounds of arrest were not informed to her. She also stated that the prosecution witnesses are the stock witnesses of customs and deposed against her at the advice of Customs. She stated that the case is false and frivolous and that she has been falsely implicated in the present case and that recovery was planted on her. Accused further stated that she does not want to lead defence evidence and thereafter final arguments were heard.
ARGUMENTS OF PROSECUTION:
Page no. 16 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
12. Sh. Puneett Singhal, Ld. Special Public Prosecutor for Customs submitted on the lines of case filed by the department as well as on the lines of the deposition of the aforesaid witnesses. Ld. SPP for the Customs stated that accused was carrying trolley bag from which Heroin in commercial quantity and the said contraband was imported by her into India illegally and thus the accused is liable to be punished for the offences committed by her. Ld. SPP for customs submits that Customs has been able to prove through its witnesses that the accused was in conscious possession of the drugs recovered from her trolley bag which also finds corroboration from her statement under Digitally Section 67 of NDPS Act and it is prayed that the accused be signed by MANU MANU GOEL GOEL KHARB Date: punished for the offence under Section 20 read with Section KHARB 2026.03.18 18:02:32 +0530 23 of NDPS Act.
ARGUMENTS OF DEFENCE:
13. On the other hand, Sh. J.S. Khushwaha and Ms. Tanya Khushwaha, Ld. Counsels for the accused Daniella Mukiibi submitted that accused has been falsely implicated in the present case and she has no concern with the alleged recovery of Heroin. Ld. Defence Counsel argued that the recovery was in contravention of Section 50 NDPS Act as signatures of accused were taken on blank papers. It was urged that the panch witnesses were not independent witnesses but they were the stock witnesses of customs.
There was failure of customs to prove safe chain of custody Page no. 17 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi and customs has failed to prove its case on account of so many loopholes. They further argued that there was a total non-compliance of provisions of NDPS Act as the net weight of the substance in each pouch was never taken and even the sampling was done in violation of S.O. 1/88 and 1/89.
14. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
GENERAL PRINCIPLE OF LAW
15. An accused is presumed to be innocent and it is the Digitally signed by burden of the prosecution to prove any wrongdoing beyond MANU MANU KHARB GOEL GOEL Date:
KHARB 18:02:26 2026.03.18 any reasonable doubt. The burden is heavy and entails that +0530 after all the prosecution evidence has been appreciated, the only conclusion which the court can draw is the guilt of the accused and no other conclusion can be drawn.
Presumption of Culpable Mental state under section 35 NDPS Act
16. Section 35 of the NDPS Act, deals with presumption of culpable mental state of an accused requiring the Court to presume the existence of such mental state for a prosecution under the Act. Furthermore, an explanation is provided in the provision which states- "In this section "culpable mental state" includes intention motive, Page no. 18 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi knowledge of a fact and belief in, or reason to believe, a fact."
17. The rule of conscious possession provides a balance between strict enforcement of law on one hand and protecting the rights of the accused on the other and 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.
18. Stringent provisions are provided under law qua Digitally signed by MANU GOEL MANU GOEL KHARB Date:
punishment in cases under the NDPS Act. The scheme of KHARB 2026.03.18 18:02:28 +0530 the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance with various safeguards ensured under the Act. The NDPS Act prescribes stringent punishment and therefore, a balance must be struck between the need for the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
19. The NDPS Act is divided into VI Chapters accommodating 83 Sections out of which Chapter V Page no. 19 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi outlines the procedure to be followed by the officers appointed for the implementation of the various provisions of the Act. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned officials so that laxity on the part of the investigating authority is curbed.
20. Section 54 of NDPS Act places burden of proof on the accused as regards the possession of the contraband to account for the same satisfactorily but the statutory Digitally presumptions under Section 54 of the NDPS Act must not signed by MANU MANU GOEL GOEL KHARB Date: be mechanically invoked. Courts must scrutinize the KHARB 2026.03.18 18:02:29 +0530 totality of evidence-- testimonies of official witnesses, presence of independent witnesses, chain of custody, forensic results, and the presence or absence of contradictory evidence. Thus, a "cumulative view"
decides whether the contraband truly was recovered from the accused and was indeed illicit. Only if procedural defects jeopardize or cast a serious doubt on the authenticity of the contraband or the fairness of the investigation, does the likelihood of an acquittal arise and conviction can stand only if, despite procedural lapses, the overall evidence remains credible.
Page no. 20 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
21. Now it is to be seen whether customs has been able to prove that the drugs recovered in this case were recovered from the conscious possession of accused and that she was illegally importing the same into India by concealing the same in her baggage.
Compliance of Section 50 NDPS Act
22. It is settled proposition of law that the provisions of the Code of Criminal Procedure, 1973 relating to searches and seizure shall apply, so far as may be, to searches and seizure under NDPS Act also. Search and seizure are essential steps in the armory of an investigator in the investigation of a criminal case. The Cr.P.C. itself Digitally signed by MANU MANU KHARB GOEL GOEL Date:
KHARB 18:02:43 recognizes the necessity and usefulness of search and 2026.03.18 +0530 seizure during the investigation as is evident from the provisions of Sections 96 to 103 and Section 165 of the Criminal Procedure Code. The provisions of Section 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Cr.P.C. comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then Page no. 21 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act.
23. Section 50 of the NDPS Act reads as follows:
" 50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) ..........."
24. To be searched before a Gazetted Officer or a Digitally signed by MANU MANU KHARB GOEL Magistrate, if the suspect so requires, is an extremely GOEL Date:
KHARB 18:02:45 2026.03.18 +0530 valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case.
25. In the landmark judgment of State of Punjab vs Balbir Singh, 1994 AIR 1872, while dealing with Section 50 NDPS Act, it was held by the Division Bench of Hon'ble Page no. 22 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi Apex Court that in the context in which the right had been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that, if he so requires, he shall be searched before a Gazetted Officer or Magistrate and on such request being made by him, to be taken before the Gazetted Officer or Magistrate for further proceedings. It was further held in this case that the accused must be made aware of that right by the empowered officer by informing him of the existence of that right and the Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take him to the Gazetted Officer or the Digitally Magistrate, would mean non-compliance with the signed by MANU MANU GOEL GOEL KHARB Date: provisions of Section 50 which in turn would affect the KHARB 2026.03.18 18:02:35 prosecution case and vitiate the Trial. It was held in Balbir +0530 Singh (supra ) as:
"18........... In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorized officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorized officer to inform the person to be searched of his right...........
19. Wide powers are conferred on the officers and deterrent sentences arc also provided for the offences under the Act. It is obvious that the legislature while keeping in view the Page no. 23 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted.
26. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search, to inform the person to be searched of his right, that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate. Thus, the provisions of Section 50 are mandatory.
27. The view taken in the case of Balbir Singh (supra) came up for consideration before the Constitution Bench of Digitally signed by MANU MANU GOEL Apex Court in the landmark judgment of State of Punjab vs KHARB GOEL Date:
KHARB 18:02:27 2026.03.18 +0530 Baldev Singh, wherein after due deliberation, it was held as :-
"...............Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. The safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search.
We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right Page no. 24 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi under Section 50 because after Maneka Gandhi V. Union of India, (1978) 1 SCC 248, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not reasonable, fair and just and when a statute itself provides for a just procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the reasonable, fair and just procedure and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. ..................This Court cannot over-look the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched Digitally signed by in the presence of a Gazetted Officer or a Magistrate, he MANU MANU KHARB GOEL Date:
GOEL shall be searched only in that manner. As already KHARB 18:02:41 2026.03.18 observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual +0530 purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer.............."
(4).................. That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist.
The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law Page no. 25 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Digitally signed by MANU MANU GOEL Section 50, may render the recovery of the contraband KHARB GOEL Date:
KHARB 18:02:39 2026.03.18 +0530 suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section
50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act."
28. It is thus no longer res integra that it is the duty of the empowered officer to inform the suspect about his right Page no. 26 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi to be searched before a Magistrate or a Gazetted Officer. Adverting to the facts of the case, it is nowhere deposed by the Investigating Officer/PW4 that she informed the accused about her legal right under Section 50 NDPS Act. She simply deposed that notice under Section 50 NDPS Act was given to the accused but she had to testify before the court in clear and unequivocal words that she informed the accused about her legal right that if he wants her search can be conducted in the presence of an independent third person to lend more authenticity and credibility to the search and seizure proceedings. PW4 was duly cross-examined by the defence counsel w.r.t Section 50 NDPS Act and her Digitally testimony on this point is reproduced as under :-
signed by MANU " Notice under Section 50 NDPS Act was given to the MANU GOEL KHARB GOEL Date:
KHARB 2026.03.18 18:02:25 +0530 accused in Customs Preventive Room. I do not remember the contents of notice under Section 50 NDPS Act and under Section 102 Customs Act. I do not remember the word 'nearest' was mentioned in the notice under Section 50 NDPS Act. The said notices were not prepared by me and we have draft notices in Customs Office and I simply filled in the details of the accused. Preventive Room......I do not remember whether the consent of the accused was typed by me or written by the accused herself...... ................the content of notice was explained to the accused by saying that she has the right to be searched before a Magistrate or any lady Custom Officer."
29. From the aforesaid testimony, it is clear that the seizing IO had no idea at all about the notice of Section 50 NDPS Act or the implications of not adhering with the statutory compliances while serving the notice under Page no. 27 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi Section 50 NDPS Act upon the accused. The IO simply made certain changes in the standard form notices available in the Customs Office and gave the said document to the accused without actually informing her about the legal rights and protection provided to her by law. There is clearly a non-compliance of Section 50 NDPS Act in the case and the search has been carried on in total disregard of mandatory provisions of law.
30. Hon'ble Supreme Court, in the case of Saiyad Mohd Saiyad Umar Saiyed & Ors Vs The State of Gujarat 1995 SCC (3) 610, upheld the view taken in the case of Balbir Digitally Singh regarding the duty of the empowered officer to signed by MANU MANU GOEL GOEL KHARB Date: inform the suspect about his right to be searched before a KHARB 2026.03.18 18:02:42 +0530 Magistrate or a Gazetted Officer and it was held as:-
"8. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily" Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused Page no. 28 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate.
9. Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, illustration (e) of the Indian Evidence Act,1872. By reason of Section 114, a court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and Digitally signed by MANU MANU GOEL private business, in their relation to facts of the KHARB GOEL Date:
KHARB 18:02:36 2026.03.18 particular case." It may presume " (e) that judicial and +0530 official acts have been regularly performed." There is no room for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the court. The fact of seizure thereof after a search, has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established.
10. We are unable to share the High Court's view that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in fact done so. When the officer concerned has not deposed Page no. 29 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the pre-condition for his having to satisfactorily account for such possession has not been met; and to acquit the accused.
12. Finding a person to be in possession of articles which are illicit under the provisions of NDPS Act has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years rigorous imprisonment and a fine of Rupees two lakhs or more. It is necessary, therefore, that courts dealing with offences under then NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Digitally signed by MANU MANU GOEL Gazetted Officer or a Magistrate. It need hardly be KHARB GOEL Date:
KHARB 18:02:38 2026.03.18 emphasised that the accused must be made aware of +0530 this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug peddlers do not go scot free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes."
31. It is clear from the judgment of Saiyad Mohd. Saiyad Umar Saiyed (supra) that in the event of failure of Investigation/empowered officer PW-4 ACO Geetika Chib, to specifically depose that she had informed the accused about her legal right to be searched before a Magistrate or Page no. 30 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi gazetted Officer, the court cannot raise the presumption that the accused would have been made aware of such right. In the present case also, it is evident that the accused was not informed of the protection given to her by the law and hence, solely on this ground also, the possession of illicit articles under the NDPS Act is not established on record.
Probative value of statement under Section 67 NDPS Act
32. It is argued by learned counsel for the accused that before recording the statement of accused under Section 67 NDPS Act, the accused was not explained that he had the right to remain silent and that the said Digitally statement could be used against him by the investigating the signed by MANU MANU GOEL GOEL KHARB Date: agency and for this reason, the statement cannot be held KHARB 2026.03.18 18:02:33 +0530 against the accused.
33. Section 67 NDPS Act reads as :-
" 67. Power to call for information, etc.--Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,--
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case."
Page no. 31 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
34. Statements made under Section 67 of the NDPS Act are inadmissible if obtained during an investigation because they violate the fundamental protection against self-incrimination under Article 20(3) of the Constitution. The NDPS Act does not supersede the procedural safeguards of the Evidence Act. The protection under Section 25 ensures that confessions made to officers are inadmissible in court.
35. The statements recorded under section 67 NDPS Act are inadmissible being hit by section 25 IEA and the only way to make such statements admissible is by Digitally way of section 27 IEA which creates an exception and signed by MANU MANU GOEL GOEL KHARB Date: allows such part of a confessional statement, being KHARB 2026.03.18 18:02:30 +0530 information leading to discovery of some fact not in the knowledge of the Police to be proved. Section 27 of the IEA reads as under:
"Section 27. How much of information received from accused, may be proved -
Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
36. In the present facts and circumstances, Section 27 IEA will not be applicable qua the accused as in the present case, there is no discovery of "fact" based on the section 67 statement of the accused.
Page no. 32 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
37. Moreover, in the case of Customs Vs Jaurah, it was observed by the Delhi High Court as under "-
" 26...................It is a settled law that while weighing the evidentiary value of a statement under Section 67 of the NDPS Act, the Court should not lose sight of the ground realities and should take into consideration whether the confession was made under duress or was voluntary in nature. The alleged recovery from the Respondents was made from 02.04.2010 to 09.04.2010 and the purported confession was made by the respondents on 09.04.2010 after the recovery of the substance in custody. PW1 in his cross-examination admitted that he had interrogated the Respondents through the interpreter PW20 and the answers given by them were recorded in the form of their statements under Section 67 of the NDPS Act. PW1 Sh. Prashant Prakhar also admitted that he had told the respondents that they were required to tender their statements under Section 67 of the NDPS Act and did not inform them about their right to remain silent which again is a violation of the law. The Hon'ble Supreme Court in D.K. Basu v. State of West Bengal 1997 (1) SCC 416 laid down the law Digitally signed by that if a person in custody is subjected to interrogation, he MANU MANU KHARB GOEL Date:
GOEL must be informed in clear and unequivocal terms as to his right KHARB 18:02:35 2026.03.18 to silence. This judgment has been followed by the Hon'ble Supreme Court in various cases. In U.O.I vs Bal Mukund & +0530 Ors. JT 2009 (5) SC 45 while relying upon D.K. Basu case, the Hon'ble Supreme Court stressed that conviction should not be based merely on the basis of statement under Section 67 of the NDPS Act, without independent corroboration. In Bal Mukund‟s case (supra), the Apex Court observed that if the maker of such a statement was interrogated while in the custody, it cannot be said that the statement was voluntary. It was further stressed that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. It was also held that a conviction should not be based merely on the basis of a statement under Section 67 of the NDPS Act without any independent corroboration. In the case on hand, the respondents were apprehended on 01.04.2010 and their alleged statements under Section 67 of the NDPS Act were recorded on 09.04.2010 while they were in custody of the Customs officers. In his cross-examination PW1 Sh. Prashant Prakhar admitted that he had interrogated the respondents through the interpreter and the answers given by them were recorded in the form of their statements under Section 67 of the NDPS Act. PW1 Sh. Prashant Prakhar also admitted that he had told the respondents that they were required to tender Page no. 33 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi their statements under Section 67 of the NDPS Act and did not inform them about their right to remain silent. Considering the same, the statements of the respondents under Section 67 of the NDPS Act cannot be said to be voluntary in view of the law laid down in D.K. Basu's case (supra) and Bal Mukund's case (supra) and thus no reliance can be placed on the same."
38. Coming to the case in hand, PW3 issued Summons under Section 67 to the accused Ex. PW3/A and then recorded the statement of accused under section 67 NDPS Act Ex. PW3/B. It is mandatory under section 67 NDPS act that before recording the statement of 67 NDPS Act, the accused needs to be apprised that the accused had the right to remain silent and anything which he says could be used Digitally against him. A perusal of summons Ex. PW3/A makes it signed by MANU MANU GOEL GOEL KHARB Date: abundantly clear that PW3 did not explain to the accused KHARB 2026.03.18 18:02:37 +0530 about her right to remain silent and was, thus, misled by customs to make the statement. As such, the statement of the accused cannot be said to be voluntary and lacks probative value.
Absence of independent witnesses
39. Ld. counsel for accused vehemently argued that PW5 Mukesh Kumar has been joined as witness in 2-3 other matters by the Customs department which itself suggests that he is a stock witness and not independent witnesses. is not an independent witness. Ld. Counsel submits that PW5 was not even called to join the seizure proceedings and later, Page no. 34 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi his signatures were taken on the documents prepared by Customs.
40. As per Section 118 of Indian Evidence Act, a competent witness is one who has the capacity and ability to understand the questions put to him by the court. If he has the ability to understand the questions and the ability to give rational answers, then he is a competent witness. A witness may be classified into different categories like interested witness, chance witness, stock witness, Eyewitness, official witness or related witness.
Digitally
41. A stock witness is a person who is at the beck and signed by MANU MANU GOEL GOEL KHARB Date: call of the police and he obliges the investigation agency KHARB 2026.03.18 18:02:31 +0530 with his tailored testimony and is widely used by police in raids. The police are sometimes accused of having some people with them ready to be used as witnesses when necessary. That is why such people are known as stock witnesses. They are also called pocket witnesses and theses witnesses often feature in multiple cases. The police trains stock witness to give appropriate evidence. They are trained to utter nothing other than that which the police want them to say. Stock witnesses lie on oath and give fake testimony as they are taught to say that which they have not seen.
Page no. 35 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
42. As per the case of Customs, PW5 is an independent witness in the present case and he works in the housekeeping department at IGI Airport. It has also come in the testimony of PW5 that he was earlier also a witness in 2-3 other cases filed by Customs and hence, it is relevant to scrutinize his testimony with great caution.
43. The credibility and veracity of a witness can be tested by way of his cross examination. If we carefully go through the testimony of PW5, it would show that he is unable to remember whether the notice under Section 50 NDPS Act was given to the accused in his presence or not.
Digitally He also stated that no notice in writing was given to him by signed by MANU MANU GOEL GOEL KHARB Date: ACO Geetika Chib to join the proceedings as a witness KHARB 2026.03.18 18:02:45 +0530 whereas the case of customs is that after the interception of accused, Panch witness Mukesh Kumar was called vide letter Ex. PW4/A to join the proceedings. Furthermore, PW5 deposed that the statement of accused under Section 67 was recorded by ACO Geetika Chib whereas the same was recorded by PW3 Manoj Kumar Ram. PW5 stated that the weight of drugs recovered from accused was 220 grams whereas it was actually 2020 grams. He also deposed that the notice under Section 102 was typed by Geetika Chib whereas PW4 Geetika Chib deposed that she did not prepare any notice but used the draft notices available in the office and filled in the details of the accused.
Page no. 36 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
44. The testimony of PW5 is of no assistance to prove the case of prosecution rather it has further weakened the already weak case of customs. It was the testimony of recovery witnesses only which could have lent support to the case of Customs to sustain the conviction of the accused but in the present case, the testimony of PW5 has rather exonerated the accused from all the allegations levelled against her in the present case.
45. Evidently, a lot of inconsistencies can be seen in the deposition of PW5 concerning material particulars of the case. Moreover, as has already been deposed by the witness Digitally himself that he was a witness in 2-3 other cases of Customs.
signed by
MANU MANU GOEL
GOEL
KHARB
Date: The deposition of PW5 clearly shows that he is available at
KHARB 2026.03.18
18:02:42
+0530
the back foot of Customs and is conveniently joined by Customs in every other case. It is also not out of place to mention here that IGI Airport is one of the busiest airports all over the World. So, a lot of passengers would be available at the airport who could have been asked to join the recovery proceedings, but rather than bringing any independent witness, the investigation agency joined a person who is ready to oblige the department on its call and has already obliged them in other cases. Hence, this court has no hesitation in giving the finding that PW5 is a stock witnesses of Customs. In light thereof, the testimony of PW5 is bereft of any credibility and discarded outrightly.
Absence of Videography and Photography of the proceedings Page no. 37 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
46. Ld. Defence counsel also argued that the recovery and seizure proceedings were neither videographed nor photographed, which raises a doubt as to whether the proceedings took place or not in the manner as pointed out by the prosecution.
47. It is a matter of record that the accused was apprehended at the airport, however, the custom officials made no endeavour to arrange for videography of the recovery and seizure of the contraband.
48. The Hon'ble Apex Court in the case of Shafhi Mohd.
v. State of H.P. : (2018) 5 SCC 311 has expressed the need Digitally MANU signed by MANU GOEL KHARB for videography and photography during the investigation.
GOEL Date:
KHARB 2026.03.18
18:02:34
+0530 Relevant para from the said judgment is extracted below:
"10. Thus, we are of the considered view that notwithstanding the fact that as of now investigating agencies in India are not fully equipped and prepared for the use of videography, the time is ripe that steps are taken to introduce videography in investigation, particularly for crime scene as desirable and acceptable best practice as suggested by the Committee of the MHA to strengthen the Rule of Law. We approve the Centrally Driven Plan of Action prepared by the Committee and the timeline as mentioned above. Let the consequential steps for implementation thereof be taken at the earliest."
49. In the case of Ram Prakash v. State, 2014 SCC OnLine Del 6936, the court acquitted the accused person on the ground of lack of videography and observed that the case of the prosecution is not proved beyond reasonable Page no. 38 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi doubt and granted benefit of doubt to the accused. Relevant para is extracted below:-
"22. .......... The Court can only observe that with so many technological advances where satellite imagery to the smallest degree of precision of any location in the world is available, the Delhi police can no longer be excused for not improving its methods of gathering and presenting evidence. Considering that the raid was going to take place in a busy place like the Old Delhi Railway Station parking lot, and in broad daylight, it should have been possible for the police to arrange for a videograph of the place or perhaps of the raid itself, if not photographs.
23. Also clearly there are CCTV cameras all over the place outside the Old Delhi Railway Station including its parking lot. There was no effort made to collect the CCTV footage of the relevant time. Not only would it have showed how the Appellant reached the spot with the three bags but also it could have been placed on Digitally signed by record to show the raid placed on record to shown the MANU MANU KHARB GOEL Date:
GOEL raid as it took place."
KHARB 18:02:40 2026.03.18 +0530
50. It is further held by the Hon'ble Delhi High Court in the case Bantu Vs State of NCT of Delhi that although there is no mandatory requirement to conduct videography or photography of the recovery proceedings which were conducted in 2016, the question before the court is whether the deposition of recovery witnesses, who have corroborated each other in material particulars, can be overlooked or disbelieved, merely because they did not take photographs or video at the time of search and seizure. It was observed by the Hon'ble High Court as under :-
" 72. Almost all individuals carry a mobile phone compatible for videography these days. From the above cases, it is clear that it is open for the prosecution to furnish reasons to explain and justify the absence of videography and photography in a case. Mere absence Page no. 39 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi of videography and photography of the recovery does not nullify the case of the prosecution, however, the same can in some circumstances be sufficient to create a doubt as to the veracity of the prosecution's case.
73. The Hon'ble Apex Court, in a catena of judgments has held that the more severe the punishment, greater has to be the care taken to ensure that all the safeguards provided in the statute are scrupulously followed.
74. While a little play in the joint has to be afforded to investigating agencies to enable them to discharge their duties, the authorities also have to be held accountable to prevent abuse of law. In cases where the factum of recovery of the contraband is supported only by official witnesses, lack of videography and photography, especially in the absence of independent witnesses, casts a doubt on the recovery of the contraband, unless the same is justified by cogent reasons.
75. As already noted above, in the case of absence of independent witnesses, it is to be seen whether any Digitally signed by MANU MANU GOEL prejudice is caused to the accused person and KHARB GOEL Date:
KHARB 18:02:43 2026.03.18 testimonies of the police officials can be believed even +0530 without corroboration if the same is found to be credible.
This Court is of the opinion that the same rationale would extend to cases where there is no photography and videography as well, specially when the same has been deliberated and commented upon by Courts on numerous occasions."
51. In NDPS cases, the recovery of the contraband is the fulcrum of the matter. The said recovery becomes a crucial piece of evidence, as it directly links the accused with the crime. Further, the quantity of the contraband is another crucial factor as it plays a significant role in determining the severity of the sentence as the legislation provides specific punishments based on the quantity of the contraband. Therefore, the procedure as prescribed under the NDPS Act must be adhered to when such recovery of the Page no. 40 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi contraband is made. Though lack of photography and videography by itself does not vitiate the trial but the same along with the absence of independent witnesses and other statutory non-compliances casts a shadow of doubt on the prosecution case unless the same is proved by cogent material.
Other loopholes and gaps
52. Another thing which has grabbed the attention of this court is that no evidence has come on record to connect the trolley bag Ex. PW4/G from which the drugs were allegedly recovered belonged to the accused. Even the baggage tag has not been exhibited in the present case. Digitally signed by MANU GOEL MANU GOEL KHARB Date:
Neither the IO nor the panch witness deposed anything in KHARB 2026.03.18 18:02:38 +0530 order to prove that the trolley bag from which the drugs were allegedly recovered belonged to the accused.
53. Furthermore, drugs weighing 2020 grams were allegedly concealed in the false cavities inside the black color trolley bag. It is not possible that powdery substance was concealed inside the false cavities as it is without any packing/ pouch otherwise the substance would have been wasted thereby decreasing the quantity of the substance i.e. heroine in this case, which has a high commercial value. It seems that the IO has conveniently and deliberately omitted to mention the intricate details about the recovery of contraband and has simply stated that powdery substance Page no. 41 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi was found concealed inside the false cavity of the trolley bag, the benefit of which necessarily goes to the accused.
54. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject, of course to some statutory exceptions. Prosecution should be able to prove the complete chain of events which led to the commission of the offence and prosecution case should stand on its own legs. Further, it is the cardinal Digitally principle of criminal jurisprudence that culpability of signed by MANU MANU GOEL GOEL KHARB Date: accused has to be proved beyond doubt and in case, there is KHARB 2026.03.18 18:02:44 +0530 any doubt, then benefit of doubt should be given to the accused.
55. In the light of the above said discussion and appreciation of evidence, court is of the opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubts, hence, the accused Daniella Mukibi is hereby acquitted from the charges framed against her.
56. Case property is confiscated to the State and be disposed of as per rules.
Page no. 42 of 43 SC no. 476-2022 Customs Vs Daniella Mukiibi
57. Copy of this judgment be given to accused free of cost.
Announced in the open Court today i.e. 18.03.2026 (Manu Goel Kharb) Special Judge (NDPS)-02 Dwarka Courts, New Delhi.
Digitally signed by MANU MANU KHARB GOEL GOEL Date:
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