Delhi District Court
State vs Idrish on 4 December, 2025
DLSH010006302022 Page 1 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Idrish S/o Sh. Bawla Yunus, R/o Mohalla Miradgan, P.S. & Teh. Uparcoat, P.O. Ansari Road, District Bulandsehar, U.P. ....accused (Sh. Nadeem Khan, Advocate for accused) Date of institution : 28.01.2022 Date when Judgment reserved : 03.12.2025 Date of Judgment : 04.12.2025 Final Decision : Convicted JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 02.08.2021, a secret information was received by SI Vishan Kumar that one person namely Idrish would be coming for supplying heroin to some unknown person near Seemapuri towards Dilshad Garden, Delhi. The said information was conveyed to senior officers and got reduced in daily diary vide DD No. DLSH010006302022 Page 2 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act 50A dated 02.08.2021 and was forwarded for perusal of senior officers for compliance of Section 42 NDPS Act. Thereafter, a raiding team was constituted which was led by SI Vishan Kumar and trap was laid. At about 3:50 pm near Seemapuri Roundabout, Opposite Public Toilet, towards Dilshad Garden side, Delhi, accused was apprehended by the police. He was found in possession of white colour polythene in his right hand. Notice U/s 50 NDPS Act was served upon him. He was apprised about his legal right to be searched before a Gazetted Office or Magistrate, but he refused to conduct the search of police party and their vehicle, but opted to get searched before Gazetted Officer or Magistrate. Thereafter, Sh. Mayank Bansal, ACP Narcotics Cell was informed about the apprehension of accused and for compliance of Section 50 NDPS Act. ACP Mayank Bansal reached the spot. SI Vishan Kumar conducted the search of accused in the presence of Sh. Mayank Bansal, ACP Narcotics Cell. During search 300 grams heroin was recovered from one white colour polythene carried by accused in his right hand and 200 grams heroin was recovered from the right side pocket of accused. On the basis of which, the present FIR was registered U/s 21 NDPS Act. The contraband was seized and accused was arrested. The sampling of the contraband U/s 52A NDPS Act was done and sent to FSL.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 28.01.2022 charge-sheet was filed against accused U/s 21 NDPS Act.
Later on, supplementary charge-sheet was filed qua Afzal Khan who was arrested on the basis of disclosure statement of accused Idrish wherein he has stated that he had purchased heroin from Afzal Khan. Accused Idrish has DLSH010006302022 Page 3 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act also stated that he used to talk to Afzal Khan on his mobile number 8439685112 from his own mobile number 7417528173.
CHARGE
3. Vide order on charge dated 01.12.2023, charge U/s 21(c) NDPS Act was framed against accused Idrish. Afzal Khan was discharged.
PROSECUTION EVIDENCE
4. In order to prove the aforesaid charge, the prosecution has examined 14 witnesses.
5. PW-1 HC Sunil Chaudhary deposed that on 02.08.2021, he was posted at P.S. Crime Branch as HC and was working as Duty Officer from 8:00 pm to 8:00 am. At about 11:08 pm Ct. Ravi brought the rukka sent by SI Vishan, contents of which were dictated by this witness to the Computer Operator and the FIR was registered vide FIR No. 150/2021 and computerized copy of FIR was obtained. This witness had handed over the copy of FIR and original rukka to Ct. Ravi to hand over to the IO SI Lekhraj. The copy of FIR is Ex. PW-1/A (OSR). This witness had made endorsement on the rukka and the same is Ex. PW-1/B. In this regard certificate U/s 65B of the Evidence Act is Ex. PW-1/C. Copy of GD No. 82A regarding registration of FIR is Ex. PW-1/D.
6. PW-2 HC Sunny deposed that on 09.08.2021, he was posted as Constable at Narcotics Cell. On that day, he was present in the Narcotics Cell. He left the Narcotics Cell for P.S. Crime Branch, Pushp Vihar vide DD No. 2.
DLSH010006302022 Page 4 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act At P.S. Crime Branch, he met ASI Jag Narain and collected two pullandas i.e. A1 & B1 sealed with the seal of 'F' from him. This witness went to FSL, Rohini for depositing the exhibits/ pullandas vide RC No. 335/21 which is Mark-Z. After depositing the pullandas at FSL, Rohini, this witness received acknowledgment of the case property no. SFSL/DLH/7724/CHEM/2564/21 in this regard. Acknowledgment is Ex. PW-2/1. Thereafter, he returned to Narcotics Cell, handed over the acknowledgment and copy of RC to IO SI Lekh Raj. This witness also handed over copy of acknowledgment and copy of RC to ASI Jag Narain at P.S. Crime Branch, Pushp Vihar. It is stated by him that seals were duly intact and no tampering was done with the pullandas during his possession. IO SI Lekh Raj recorded statement of this witness in the office of Narcotics Cell on the same day in the evening hours.
7. PW-3 SI Vishan Kumar deposed that on 02.08.2021 he was posted as SI at Narcotic Cell, Kotwali, Crime Branch, Delhi. On that day, he was present in the office. At about 2:00 pm, a secret informer came to him and informed that one person namely Idrish indulged in the supply of heroin. On that day he would come from on road near Public Toilet, Seemapuri Golchakkar and going towards Dilshad Garden with the consignment of heroin to deliver someone between 3:30 pm to 4:30 pm and they can be apprehended with the contraband, if raided. This witness informed Inspector Rakesh Duhan regarding the secret information in his office alongwith the secret informer at 2:20 pm. Inspector Rakesh Duhan also inquired about the secret information from the secret informer. After getting satisfied with the information, Inspector Rakesh Duhan informed ACP Sh. Mayank Bansal regarding the secret information DLSH010006302022 Page 5 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act telephonically who directed him to take legal action as per law. Inspector Rakesh Duhan directed this witness to take legal action. Thereafter, at about 2:45 pm this witness made a DD Entry No. 50A Ex. PW-3/A with regard to the secret information. He also produced the copy of the DD Entry No. 50A to Inspector Rakesh Duhan. On the direction of Inspector Rakesh, this witness prepared the raiding team consisting himself, Ct. Ravi, Ct. Sonu Tomar. This witness took the IO kit, electronic weighing machine, field testing kit from the cell/ office. At about 3:01 pm he left with the raiding team alongwith secret informer in the private vehicle of white colour Maruti Baleno car vide DD No. 54A which is Ex. PW-3/B. This witness took the route of Shantivan traffic signal, Geeta Colony Yamuna Bridge, Karkardooma Court, Dilshad Garden and took U-turn from Seemapuri Golchakkar and finally reached the spot i.e near Public Toilet (Seemapuri Golchakkar to Dilshad Garden road) at about 3:25 pm. While they were on the way, he asked 4-5 public persons at Shantivan Red light, 4-5 public persons at Karkardooma Court and 4-5 public persons at Seemapuri Golchakkar to join the raiding team, but none agreed to join the raiding team and left without disclosing their names and addresses and also by giving reasonable excuses due to spread of Covid-19 pandemic.
It is stated by him that he briefed the raiding team and parked the private vehicle just 20 meters away from the Public Toilet of Seemapuri Golchakkar. They took the position with the raiding team at around 3:30 pm after briefing the raiding party. At about 3:40 pm, one person was seen coming from the side of Seemapuri Golchakkar, he came near the Public Toilet and he was carrying one weighty white colour polythene in his right hand and he cross the road and started waiting someone there, who was identified by the secret DLSH010006302022 Page 6 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act informer as Idrish. Accused Idrish was wearing white colour half sleeves baniyan and brown colour pant. Accused was also wearing chappal in his feet. This witness correctly identified the accused in the Court. Secret informer identified the said person from the distance of 25-30 meters and pointed out towards him by saying that he was the person about whom he (secret informer) has given the information and left the spot. At about 3:50 pm, this witness alongwith the help of raiding team apprehended the accused Idrish.
It is stated by him that he gave the introduction of the police team to the accused in Hindi language and he also told accused regarding the secret information. Original notice U/s 50 NDPS Act was served upon the accused in Hindi and this witness obtained signatures of accused on the carbon copy of the notice U/s 50. The carbon copy of the notice U/s 50 (NDPS Act) on which accused gave his receiving is Ex. PW-3/C. Accused was also apprised of his legal rights in Hindi. Accused was made aware that he can be searched in the presence of a nearest Gazetted Officer or Magistrate. Accused told this witness that he is illiterate and cannot read and write, but told that he can sign only in Hindi. Thereafter, this witness read over the notice U/s 50 NDPS Act to the accused. Accused told this witness that he is willing to be searched in the presence of any Gazetted Officer or the Magistrate. This witness recorded version of the accused on the aforesaid carbon copy of notice U/s 50. The version of the accused is Ex. PW-3/D. It is stated by him that at about 4:15 pm, he telephonically called ACP Sh. Mayank Bansal and informed him regarding the facts of the case and requested him to come at the spot. At about 4:55 pm, ACP reached the spot. This witness produced accused in front of ACP. ACP Sh. Mayank Bansal gave DLSH010006302022 Page 7 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act his introduction to the accused and also offered his own search as well as search of govt. vehicle to the accused, but accused refused to take the same. On the instruction of ACP Sh. Mayank Bansal, this witness collected weighty white colour polythene from his (accused) hand and thereafter this witness found one transparent polythene which was tied with red colour rubber band, he opened the same and found light red colour powder. The same was tested on field testing kit and it gave the result of heroin. The said substance was weighed and found to be 300 grams. It was kept in a white cloth pullanda and was sealed with the seal of V.K. belonging to this witness. It was marked as Mark-A. Thereafter, this witness made search of body of the accused and a transparent polythene from the right side pocket of the trouser of the accused was collected and same was tied with rubber band. This witness opened the same and it was containing light pink colour powder. The same was tested on field testing kit and it gave the result of heroin. The said substance was weighed and found to be 200 grams. It was kept in a white cloth pullanda and was sealed with the seal of V.K. belonging to this witness. It was marked as Mark-B. This witness had prepared the seizure memo which is Ex. PW3/E. Thereafter, he handed over the seal to Ct. Sonu Tomar. At about 6:00 pm ACP left the spot. They also left at about 6:30 pm because the weather was bad as it was about to rain and getting dark and reached the office at about 7:30 pm. Thereafter, this witness prepared rukka/ tehrir which is Ex. PW-3/F and handed over the same to Ct. Ravi alongwith all the case property and carbon copy of seizure memo with the direction to hand over the tehrir to DO for registration of the case and to hand over the sealed case property and carbon copy of seizure memo to SHO P.S. Crime Branch.
DLSH010006302022 Page 8 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act It is stated by him that at about 1:20 am, Ct. Ravi came at the office alongwith tehrir and copy of FIR. Further investigation of this case was assigned to SI Lekhraj who came to this witness in the office after Ct. Ravi. Ct. Ravi handed over copy of FIR and original tehrir, copy of DD entries to SI Lekhraj. This witness handed over carbon copy of notice U/s 50 NDPS Act and original seizure memo alongwith accused to SI Lekhraj.
It is stated by him that at about 6:00 am on 03.08.2021, he took SI Lekhraj to the spot where at his instance SI Lekhraj prepared the site plan. The site plan is Ex. PW-3/G. Thereafter, they came back to the office.
It is stated by him that at about 5:00 pm on 03.08.2021, he prepared report U/s 57 NDPS Act and handed over the same to Inspector Rakesh Duhan. The report U/s 57 is Ex. PW-3/H. MHC(M) has produced one white colour cloth pullanda Mark A duly sealed with the Court seal of 'F' and case particulars of the present case. The seal was broken in the Court and pullanda Mark A was open and it was found containing one white colour polythene and in the said polythene one transparent polythene in which light red colour powder substance was found. The same was shown to this witness. After seeing the same, this witness stated that it was the case property which was recovered from the possession of the accused from his right hand. The same is Ex. P-1.
MHC(M) has produced one white colour cloth pullanda Mark B duly sealed with the Court seal of 'F' and case particulars of the present case. The seal was broken in the Court and pullanda Mark B was opened and it was found containing one transparent polythene in which light pink colour powder substance was found. The same was shown to this witness. After seeing the DLSH010006302022 Page 9 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act same, this witness stated that it was the case property which was recovered from the possession of the accused from his pocket. The same is Ex. P-2.
MHC(M) has produced one original notice U/s 50 NDPS Act which is Ex. PW3/I. During his cross-examination on behalf of accused, it is stated by him that the distance between Seemapuri Golchakkar and the spot is about 100 meters. He could not remember if he had mentioned the fact that the accused would come near Public Toilet Seemapuri Golchakkar in GD No. 50A Ex. PW- 3/A. It is stated by him that the secret information was not written separately on any paper except the GD No. 50A. It is stated by him that he had entered GD No. 50A in CCTNS. It is stated by him that the entry was made at 2:45 pm and it had taken about 5-10 minutes. It is stated by him that the IO bag, field testing (kit) were not got issued from the maalkhana. It is stated by him that the weighing machine was not got procured from the maalkhana as the same was already procured. He could not tell when the field testing kit got issued. However, it is stated that it remained valid for six months after issuance. It is stated by him that the weighing capacity of the weighing machine was upto 10 Kgs. He could not tell the brand of the weighing machine. It is admitted by him that there is DC office near Gagan Cinema. He could not tell the distance between spot and Mandoli Jail. It is stated by him that he had not made any request at DC office and Mandoli Jail to any government employee to join the investigation. It is stated by him that he had called the ACP at the spot as the accused had stated that he wanted to be searched in the presence of a Gazetted Officer. It is stated by him that besides ACP he had not called any other Gazetted Officer. It is stated by him that he had called ACP Mayank Bansal to DLSH010006302022 Page 10 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act come at the spot through his mobile phone at 4:15 pm. It is stated by him that ACP Mayank Bansal came at the spot at about 4:55 pm and left the spot at about 6:00 pm. It is stated by him that the proceedings of the field testing kit were noted only in the seizure memo and no rough notes were prepared. It is admitted by him that in the site plan Ex. PW-3/G Public Toilet is not shown. It is admitted by him that position of Ct. Ravi Kumar and Ct. Sonu Tomar is not shown in the site plan Ex. PW-3/G (it is voluntarily stated that they were in moving direction). It is admitted by him that they maintained roznamcha.
8. PW-4 retired SI Jag Narain deposed that on 02.08.2021, he was working as MHC(M) at P.S. Crime Branch. On that day at about 11:30 pm SHO/ Inspector Govind Chauhan called this witness in his office alongwith maalkhana register and handed over to this witness two sealed pullandas Marks A and B having the seals of VK and GC in connection with the present case FIR. He also gave this witness copy of seizure memo of the recovered contraband on which the SHO has already put the FIR Number and his signatures. This witness made entry in Register No.19 at Serial No. 4048.
It is stated by him that on 03.08.2021, SI Lekhraj came at the maalkhana and deposited personal search articles of the accused Idrish in the maalkhana. This witness made entry vide Serial No. 4049 in this regard in Register No. 19.
It is stated by him that on 06.08.2021, as per directions of SHO, he had produced the sealed case property i.e. pullandas Marks A and B before the Court of Ld. MM concerned and as per the directions of Ld. MM, the seals of the pullandas were opened and samples of the contraband were taken out, which DLSH010006302022 Page 11 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act were given Marks A1, A2 and B1, B2. The pullandas were sealed with the seal of Court and this witness received sample seal, FSL Form and the above-said articles were deposited in the maalkhana intact condition.
It is stated by him that on 09.08.2021, two sealed parcels sealed with the seal of Court i.e. pullandas Marks A1 and B1 alongwith sample seal and FSL Form were sent to FSL, Rohini through forwarding documents and RC No. 335/21/21 through Ct. Sunny Sangwan, No. 1349 crime. After depositing the exhibits in FSL, Ct. Sunny Sangwan came back and handed over acknowledgment to this witness.
It is stated by him that till the time the case property was in his possession, it has not been tampered with.
He has brought original Registers No. 19 and 21. The copy of the entry in Register No. 19 vide Serial No. 4048 is Ex. PW-4/A (OSR). The copy of the entry in Register No. 19 vide Serial No. 4049 is Ex. PW-4/B (OSR). Copy of RC No. 335/21/21 is Ex. PW-4/C (OSR). Acknowledgment of FSL is already Ex. PW-2/1 (OSR).
During his cross-examination on behalf of accused, it is admitted by him that the signatures of the person who took the exhibits for the purpose of sampling and for depositing the same in the maalkhana are not there in Register No. 19.
9. PW-5 HC Arjun deposed that on 15.11.2021, he was posted as Constable at Narcotic Cell, Crime Branch, Delhi. IO SI Lekhraj directed this witness to collect information about Afzal from Village Kesarpur, Bareilly, U.P. As directed by the IO, this witness went to the above-said village and DLSH010006302022 Page 12 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act made inquiries about Afzal. This witness came to know that Afzal was not residing there and he had gone to Gujarat with his wife, where he used to live with his in-laws and Afzal is working in some business. The mobile number of Afzal was provided, but dialing the said number it did not connect. This witness recorded statement of the Chacha of Afzal and obtained copy of his Aadhaar card. Thereafter, this witness returned back, handed over the statement and copy of Aadhaar Card of Chacha of Afzal to the IO. This witness came to know that the mobile number used by Afzal was issued in the name of one Rajeev. This witness tried to search for the said Rajeev at the given address, but in vain.
10. PW-6 retired SI Ishwar Prakash deposed that he was posted as ASI at Photo Section, Crime Branch, Kamla Market, Delhi and working as photographer. On 06.08.2021 on request of the IO, this witness went to the Court of Sh. Fahad Uddin, Ld. MM, Karkardooma Court for taking the photographs. As per the direction of the IO, this witness took 28 photographs from different angles of the proceedings of drawing samples. This witness handed over the said photographs to the IO after developing the same and same is Ex. PW-6/P-1 to P-28 (Colly).
He has brought his certificate U/s 65B of Indian Evidence Act issued qua the print out of photographs taken by him of the sampling proceedings before Ld. MM. His certificate U/s 65B of Indian Evidence Act is Ex. PW-6/A.
11. PW-7 Ct. Ravi deposed on the same lines as deposed by PW-3 SI Vishan Kumar.
DLSH010006302022 Page 13 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act It is further deposed by him that SI Vishan prepared rukka/ tehrir and handed over the same to him alongwith sealed parcels and carbon copy of seizure memo with the direction to hand over the tehrir to DO for registration of the case and to hand over the sealed case property and carbon copy of seizure memo to SHO P.S. Crime Branch.
He went to P.S. Crime Branch where he handed over the original rukka to the Duty Officer and sealed parcels to the SHO. After registration of FIR, this witness obtained original rukka and copy of FIR from the Duty Officer and came back to their office and handed over the same to SI Lekhraj to whom the investigation was marked.
SI Lekhraj arrested accused vide arrest memo Ex. PW-7/A and personally searched him vide personal search memo Ex. PW-7/B. From the personal search of accused, one original notice U/s 50 NDPS Act, cash of Rs. 500/- and mobile phone make Lava was recovered. SI Lekhraj recorded the disclosure statement of accused Ex. PW-7/C. On 04.08.2021 this witness alongwith SI Lekhraj and other staff and accused Idrish went to village Kesharpur, P.S. Sirolli, Distt. Bareilly, U.P. for search of Afzal i.e. source of heroin, but Afzal was not found present at his house.
He identified his signatures on original notice U/s 50 NDPS Act already Ex. PW-3/I. During his cross-examination on behalf of accused, it is stated by him that there was traffic on the road heading from Seemapuri roundabout to Dilshad Garden. It is stated by him that the IO did not record statement of any public person.
DLSH010006302022 Page 14 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act
12. PW-8 Inspector Govind Chauhan deposed that on 02.08.2021, he was posted at P.S. Crime Branch as SHO. At about 11:15 pm, Ct. Ravi came to office of this witness and handed over to this witness two sealed parcels sealed with the seal of 'VK' and having Marks A and B alongwith carbon copy of seizure memo. This witness affixed his seal of GC on both the parcels. After confirming the FIR Number from the Duty Officer, this witness wrote the same on both the parcels and copy of seizure memo. This witness also signed both the parcels and copy of seizure memo. This witness then called the MHC(M) CP alongwith Register No.19 in his office and MHC(M) had made entry of all the details in the Register No.19 and this witness handed over both the sealed parcels and copy of seizure memo to MHC(M) CP. This witness also signed at Point-A against the relevant entry in Register No. 19 which is Ex. PW-8/A (OSR). In this regard, this witness lodged a GD vide no. 83A at about 11:52 pm dated 02.08.2021 and same is Ex. PW-8/B.
13. PW-9 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. deposed that he is working as Nodal Officer with Bharti Airtel Ltd. since 03.08.2015. He has been provided by the company specific password to access the system and he is authorized by the company to take the printouts from the system.
He has brought printouts of CAFs and ID proofs of mobile numbers 7417528173, 8439685112 and 8126776398 retrieved from the system alongwith his certificate U/s 65B of IEA qua the printouts.
It is stated by him that the mobile number 7417528173 was allotted DLSH010006302022 Page 15 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act to one Shahnawaz, S/o Farman, resident of 20 Kasswan, Bulandshehr, Distt. Hathras, U.P. The printout of CAF alongwith ID proof is Ex. PW-9/A (Colly).
It is stated by him that the mobile number 8439685112 was allotted to one Rajeev, S/o Mithu Lal, resident of Nathu Lal, Janseva ke Piche, Vakshariya, Faridpur, Bareilly, U.P. The printout of CAF alongwith ID proof is Ex. PW-9/B (Colly).
It is stated by him that his certificate U/s 65B of IEA qua the printouts of the CAFs of the aforementioned numbers is Ex. PW-9/C which bears his signature at Point-A. It is stated by him that the mobile number 8126776398 was allotted to one Aslam Khan, S/o Shakoor Khan, resident of Kesarpur, Nawabganj, Bareilly, U.P. The printout of CAF is Ex. PW-9/D. His certificate U/s 65B of IEA qua the printout of the CAF of the aforementioned number is Ex. PW-9/E which bears his signature at Point-A. He has also brought printouts of CDRs of mobile numbers 7417528173 and 8439685112 retrieved from the system for the period from 01.07.2021 to 02.08.2021 alongwith his certificate U/s 65B of IEA. The CDRs of mobile number 7417528173 running into 31 pages are Ex. PW-9/F (Colly). The CDRs of mobile number 8439685112 running into 32 pages are Ex. PW- 9/G (Colly). His certificate U/s 65B of IEA qua the printouts of the CDRs of the aforementioned numbers is Ex. PW-9/H which bears his signature at Point-A. He has also brought the printouts of Cell ID chart running into three pages which is Ex. PW-9/I.
14. PW-10 Inspector Rakesh Duhan deposed that on 02.08.2021 he DLSH010006302022 Page 16 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act was posted as Inspector Narcotic Cell, Daryaganj, Delhi. On that day at about 2:20 pm SI Vishan came to this witness in his office alongwith secret informer and SI Vishan informed this witness that the secret informer has given information that a person namely Idrish, resident of Seemapuri who indulges in supply of heroin in bulk and retail would be coming between 3:30 and 4:30 pm from Seemapuri Golchakkar towards Dilshad Garden road with a consignment of heroin to be delivered to some one and that if raid is conducted, he and the receiver can be apprehended with the contraband. This witness also talked to the secret informer in this regard. After satisfying himself about the secret information, at about 2:25 pm, he informed ACP Mayank Bansal, ACP Narcotic Cell, telephonically about the secret information and he directed this witness to take legal action as per law. Thereafter, this witness informed SI Vishan, who was present in his office, about the directions received from ACP Mayank Bansal and directed SI Vishan to take appropriate legal action after constituting a team.
It is stated by him that SI Vishan thereafter got DD Entry No. 50A (already Ex. PW-3/A) lodged as regards the secret information and produced the copy of said DD Entry No. 50A before this witness which bears his signature at Point-B and it was forwarded by this witness to the ACP in his handwriting at Point-C. The said noting also bears signature of this witness at the bottom at Point-D which were put by him when the said DD Entry was received back from the ACP office.
Thereafter, SI Vishan after taking the electronic weighing machine and field testing kit from this witness, alongwith raiding team left the office vide GD No.54A already Ex. PW-3/B, verified by this witness at Point-B. DLSH010006302022 Page 17 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act It is stated by him that after registration of the FIR, the investigation was handed over to SI Lekhraj. SI Lekhraj after arresting accused Idrish, produced him before this witness at about 2:30 am on 03.08.2021 in his office. This witness also made inquiries from the accused and found the arrest to be justified in view of the recovery made. Statement of this witness was recorded by the IO SI Lekhraj in this regard U/s 161 Cr.P.C. This witness correctly identified the accused in the Court.
It is stated by him that report U/s 57 NDPS Act prepared regarding recovery by SI Vishan Kumar, already Ex. PW-3/H was placed before him and was forwarded by him to the ACP vide noting his signature at Point-B. The said report also bears his signatures at Point-C at the bottom of the page after it was received from the ACP office.
It is stated by him that another report U/s 57 NDPS Act prepared regarding arrest of accused by SI Lekhraj, which is Ex. PW-10/A was placed before him and was forwarded by him to the ACP vide noting his signature at Point-A. The said report also bears his signatures at Point-C at the bottom of the page after it was received from the ACP office.
It is stated by him that he had also prepared an application U/s 52A NDPS Act for sampling on 03.08.2021. The photocopy of which is marked as Mark 10B. Original proceedings U/s 52A NDPS Act have been traced and placed on record. The same are already Ex. AD-1.
It is stated by him that on 20.08.2022 after the arrest of accused Afzal (since discharged), one report U/s 57 NDPS Act prepared by SI Satwant was placed before and he forwarded the same to ACP.
During his cross-examination on behalf of accused, it is stated by DLSH010006302022 Page 18 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act him that the field testing kit handed over to SI Vishan was issued to him earlier. It is stated by him that he had not taken any receiving of the said kit from SI Vishan.
15. PW-11 Sh. Mayank Bansal, Addl. DCP, posted at South West District, Delhi Police, Delhi deposed that on 02.08.2021 he was posted as ACP, Narcotic Cell, Crime Branch, Delhi. On that day, Inspector Rakesh Duhan telephonically informed this witness at about 2:25 pm about one secret information that one person namely Idrish, resident of Seemapuri who used to supply heroin in the area will go from Seemapuri Golchakkar towards Dilshad Garden between 3:30 pm to 4:30 pm to supply heroin to somebody. This witness directed Inspector Rakesh Duhan to constitute a raiding team under supervision of SI Vishan and take immediate legal action. At about 4:15 pm, SI Vishan telephonically informed this witness about apprehension of accused Idrish and apprised that in reply to the notice U/s 50 NDPS Act, accused Idrish wanted himself to be searched in the presence of a Gazetted Officer or Magistrate and SI Vishan requested this witness to come to the spot i.e. road heading from Seemapuri roundabout to Dilshad Garden. This witness reached the spot at about 4:55 pm in his official vehicle where SI Vishan produced Idrish before this witness. Other police staff members were also present there.
This witness introduced himself to accused Idrish and apprised him about his legal right that he can take search of the members of police team as well as this witness and also can take search their vehicles prior to his (accused's) search, but accused refused to do so. On directions of this witness, SI Vishan checked the white colour polythene bag carried by accused Idrish in DLSH010006302022 Page 19 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act his hand, which was found containing one polythene pouch, mouth of which was tied with a red colour rubber band. After opening the polythene pouch, it was found containing red colour powder. SI Vishan checked the contents of powder on the field testing kit which was found positive for heroin. SI Vishan tied the rubber band on polythene pouch containing the contraband and weighed it on the electronic weighing machine which was found to be 300 grams.
It is stated by him that SI Vishan kept the polythene pouch in the same recovered white colour polythene bag, kept it in a white cloth parcel, which was sealed with the seal of VK and the parcel was given Mark A. Further on directions of this witness, SI Vishan took the search of the wearing clothes of accused Idrish. One transparent polythene pouch was recovered from the right pocket of his wearing pant, mouth of which was tied with red colour rubber band. On opening the polythene pouch, it was found containing light pink colour powder, contents of which were checked by SI Vishan on field testing kit and it was found positive for heroin. SI Vishan tied the polythene pouch with the same rubber band and weighed the same on electronic weighing machine which was found to be 200 grams. SI Vishan kept the polythene pouch in a cloth parcel which was sealed with the seal of VK and it was given Mark B. Seal was handed over to Ct. Sonu after use. SI Vishan prepared seizure memo already Ex. PW-3/E which bears signature of this witness at Point-D. This witness also signed on both the parcels and accused Idrish also signed the seizure memo and both the parcels. Thereafter, this witness left the spot after giving necessary instructions to SI Vishan at about 6:00 pm. It is stated by him that on the same day, his Reader placed before him copy of GD No. 50A regarding secret information which was seen and DLSH010006302022 Page 20 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act signed by him. DD No. 50A already Ex. PW-3/A which bears his signature at Point-E. It is stated by him that on the next day, his Reader placed before him report U/s 57 NDPS Act prepared by SI Vishan which was seen and signed by him. The report U/s 57 NDPS Act is already Ex. PW-3/H which bears his signature at Point-D. On the same day, his Reader placed before him report U/s 57 NDPS Act prepared by SI Lekhraj which was seen and signed by him. The report U/s 57 NDPS Act is already Ex. PW-10/A which bears his signature at Point-D. This witness correctly identified accused in the Court. It is stated by him that the sampling proceedings U/s 52A NDPS Act has already been conducted before Ld. MM. Production of case properties is therefore dispensed with.
During his cross-examination on behalf of accused, it is stated by him that it took him about 40 minutes in reaching the spot after receiving phone call. It is stated by him that apart from SI Vishan and accused, Ct. Sonu and Ct. Ravi were present at the spot when he reached there.
16. PW-12 Dr. Kavita Goyal, Asstt. Director, Chemistry, FSL, Rohini, Delhi deposed that she is working at FSL, Rohini since 1999. On 09.08.2021, she was posted as Assistant Director (Chemistry) at FSL, Rohini. On that day two sealed parcels Marks A1 and B1 sealed with one seal of F in FIR No. 150/2021 dated 02.08.2021 U/s 21 NDPS Act, P.S. Crime Branch alongwith specimen seals, forwarding letter, copy of FIR, copy of seizure memo etc. were received in their office from SHO, P.S. Crime Branch vide letter reference no.
DLSH010006302022 Page 21 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act 744/SHO/Crime Branch dated 09.08.2021. Same were marked to this witness for chemical examination. The seals were intact and were tallying with specimen seal.
On opening the parcel Mark A1, it was found containing pinkish coloured coarse powdery material, weight approx. 5.4 gms and it was marked as Ex. A1.
On opening the parcel Mark B1, it was found containing pinkish coloured coarse powdery material, weight approx. 4.6 gms and it was marked as Ex. B1.
It is stated by her that she analyzed the exhibits between 06.01.2022 to 09.03.2022. After chemical, TLC and GC-MS examination of Ex. A1, the same was found to contain Diacetylmorphine, Acetaminophen, Caffeine, Dextromethorphan, Morphine, Acetylcodeine, Monoacetylmorphine and Trimethoprim.
Ex. B1 was found to contain Acetaminophen, Caffeine, Alprazolam, Acetylcodeine and Monoacetylmorphine.
It is stated by her that after the examination the remnants of the exhibits were kept in one two different parcels which was sealed with the seal of K.G. FSL DELHI. She prepared the detailed report bearing no. SFSL DLH/7724/CHEM/2564/21 dated 09.03.2022 which is Ex. PW-12/A (running into two pages) bearing her signatures at Points A and B. She submitted her report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
17. PW-13 SI Lekhraj deposed that on 03.08.2021, he was posted at DLSH010006302022 Page 22 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Narcotic Cell, Crime Branch, Kotwali, Daryaganj, Delhi. On that day at around 1:20 am, Ct. Ravi handed over copy of FIR and original rukka to this witness alongwith copies of relevant DD entries. SI Vishan produced accused Idrish before this witness and handed over the documents pertaining to this case prepared by him to this witness. After interrogating the accused, this witness arrested accused vide arrest memo already Ex. PW-7/A and personally searched him vide personal search memo already Ex. PW-7/B. Apart from one mobile phone and other articles, original notice U/s 50 NDPS Act was recovered from personal search of accused. This witness recorded disclosure statement of accused already Ex. PW-7/C. This witness also lodged GD No. 32A regarding arrest of accused which is Ex. PW-13/A. This witness produced accused before Inspector Rakesh Duhan who found his arrest justified. This witness correctly identified accused in the Court.
Thereafter, this witness alongwith SI Vishan left their office for the spot where he prepared site plan at the instance of SI Rakesh Duhan which is already Ex. PW-3/G. This witness obtained two days PC remand of accused. He also moved an application for conducting the proceedings of 52A NDPS Act. During PC remand, this witness tried to search for the source of contraband i.e. Afzal in the area of Bareilly, but he was not found present there. This witness prepared pointing out memo of the house of accused Afzal at the instance of accused Idrish.
During investigation, this witness analyzed the CDRs of the mobile number of accused Idrish and Afzal and this witness obtained the certified copies of CDRs and CAFs.
It is stated by him that on 06.08.2021, he appeared in the Court of DLSH010006302022 Page 23 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Sh. Fahad Uddin, Ld. MM, Karkardooma Courts where photographer ASI Ishwar Prakash was also present and MHC(M) Pawan Kumar brought the sealed parcel before Ld. MM. On the direction of Ld. MM the sampling proceedings were conducted after de-sealing the two parcels Mark A and Mark B and two samples each from the contents of both the parcels were drawn and kept in separate containers which were marked as Mark A1 and A2, B1 and B2. All the parcels were sealed with the seal of 'F'. Ld. MM also affixed a sample seal. The sampling proceedings U/s 52A NDPS Act were photographed stepwise. This witness obtained copy of order of Ld. MM alongwith all the six sealed parcels and sample seal from Ld. MM and handed over the same to ASI Pawan Kumar for depositing at maalkhana. During investigation, this witness sent the exhibits to FSL. After completion of investigation, he submitted the charge-sheet for trial. The sampling proceedings U/s 52A NDPS Act has already been conducted before Ld. MM. Production of case properties is therefore dispensed with.
18. PW-14 Ct. (now HC) Sonu Tomar deposed on the same lines as PW-3 SI Vishan Kumar and PW-7 Ct. Ravi.
It is stated by him that SI Vishan had handed over the seal to him after use. He also identified his signature on notice U/s 50 NDPS Act already Ex. PW-3/I. This witness was also duly cross-examined on behalf of accused.
19. During trial, accused admitted the proceedings U/s 52A NDPS Act conducted by Sh. Fahad Uddin, Ld. MM dated 06.08.2021 (Ex. AD-1) U/s 330 DLSH010006302022 Page 24 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act BNSS/ 294 Cr.P.C.
20. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 23.09.2025.
STATEMENT OF ACCUSED
21. Statement of accused was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that a false DD was registered regarding secret information. It is stated by him that the FIR is ante-timed and ante-dated. It is stated by him that the documents are manipulated. It is stated by him that he was falsely arrested. It is stated by him that the contraband was not recovered from him. It is stated by him that he was falsely implicated in the present case. He was apprehended by the police from Seemapuri Golchakkar. Police officials told him that he is in possession of heroin. He denied the same and asked them to get his search done by a Magistrate or Gazetted Officer, but they did not do so, rather took him in a car to Police Station and framed him in the present case. It is stated by him that police officials asked him to inform about some moti party on that they would let off him. Since he could not do as they directed, hence this case was registered. Police officials told him that since he is having previous cases, hence its easy to frame him in the case. It is stated by him that police took him to various places and told him that whosoever may be arrested from those places, he has to identify them as his supplier. However, no such person could be apprehended by the police despite visiting three different places.
He chose not to lead any defense evidence.
DLSH010006302022 Page 25 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act FINAL ARGUMENTS
22. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record carefully.
23. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act have been complied with in the present matter at the time of recovery and thereafter. It is contended that total 500 gms heroin was recovered from accused. There is nothing on record to suggest that police officials had any enmity with the accused. Thus, the offence U/s 21(c) of NDPS Act is proved beyond reasonable doubt against the accused.
24. Per contra, it is contended on behalf of accused that accused has been falsely implicated in the present case due to acquittal in two previous cases. It is contended that neither supplier nor the prospective buyer could be arrested or investigated in the present matter. It is contended that there is no videography or photography of the recovery proceedings. No public person joined in the investigation as no recovery was effected from the alleged place and time. Thus, story of the police is concocted one.
Ld. Counsel for accused relied on the judgments/ orders delivered by Hon'ble High Court of Delhi in the cases titled as Ms. Betty Rame Vs. Narcotics Control Bureau, Crl.M.(Bail) 1324/2022 in Crl.A.338/2021 decided on 30.05.2023; Tobias Christian Vs. Narcotic Control Bureau, Bail Appln. 1301/2022 decided on 03.04.2024; Deepak Pandey Vs. State, Bail Appln. 903/2019, decided on 01.11.2019; Laxman Thakur Vs. State (Govt. of NCT of DLSH010006302022 Page 26 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Delhi), Bail Appln. 3233/2022, decided on 14.12.2022 and Shyam Gupta & Ors. Vs. State, Crl.Rev.P. 421/2019 decided on 13.03.2023, to contend that police has not followed the due procedure during investigation.
Legal Requirement to prove the Charges :-
25. Section 21 NDPS Act reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
26. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or DLSH010006302022 Page 27 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
27. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
28. The term "narcotic drugs" is defined in Section 2(xiv) as under :-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
29. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
30. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :-
(xi) "manufactured drug" means--DLSH010006302022 Page 28 of 56 SC 30/2022
STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
31. "Opium Derivatives" besides other things also means heroin. It is defined in Section 2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
32. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central DLSH010006302022 Page 29 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Government by notification in the Official Gazette;
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
33. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
34. In order to prove the charge U/s 21(c) NDPS Act, the prosecution is required to prove the following facts:
(1) That 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 opium derivative/ heroin. (4) That the quantity of the contraband was commercial for Section 21(c) of NDPS Act.
35. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a DLSH010006302022 Page 30 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act 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.
36. In State of Punjab Vs. Balbir Singh, 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under :-
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and
57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation.DLSH010006302022 Page 31 of 56 SC 30/2022
STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the 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 DLSH010006302022 Page 32 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
37. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
38. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring DLSH010006302022 Page 33 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act 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 as held by Hon'ble Bombay High Court in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002 :-
"In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."
Thus, 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.
39. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further DLSH010006302022 Page 34 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
40. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:-
Discussion on the point of compliance of Section 42 of NDPS Act
41. Section 42 NDPS Act is as under :-
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) Any such officer (being an officer superior in rank to a peon, sepoy or consta- ble) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from per- sonal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in re- spect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or con-
DLSH010006302022 Page 35 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act cealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such en- try;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to be- lieve to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any of- fence punishable under this Act or furnish evidence of holding any illegally ac- quired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has rea- son to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the conceal- ment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sun- rise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within sev-
enty-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
42. With respect to the compliance of Section 42 NDPS Act, PW-3 SI Vishan Kumar has stated that the secret informer came to their office at 2:00 pm on 02.08.2021 and informed that one Idrish, resident of Seemapuri dealing in heroin supply in bulk and small quantities would come around 3:30-4:30 pm with bulk quantity of heroin at the road from Seemapuri Golchakkar to Dilshad Garden. PW-3 SI Vishan Kumar shared the information with PW-10 Inspector Rakesh Duhan, who further apprised the said information to PW-11 ACP Sh. Mayank Bansal. ACP directed Inspector Rakesh Duhan to take appropriate DLSH010006302022 Page 36 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act action as per law. Thereafter, Inspector Rakesh Duhan directed SI Vishan Kumar to proceed as per law. On that, GD No. 50A was lodged for doing proceedings under NDPS Act. GD was placed before Inspector Rakesh Duhan. GD No. 50A is Ex. PW-3/A. A raiding team was also constituted by SI Vishan Kumar himself, Ct. Ravi and Ct. Sonu Tomar. The raiding team departed from the Crime Branch office vide GD No. 54A recorded at 3:01 pm. PW-10 Inspector Rakesh Duhan deposed on the same lines and stated that at about 2:20 pm SI Vishan Kumar produced secret informer to him, on being satisfied with the information at about 2:25 pm he informed PW-11 ACP Mayank Bansal telephonically who directed him to take legal action as per law. Thereafter, he conveyed the directions of ACP to SI Vishan Kumar to take appropriate legal action after constituting a team.
PW-11 ACP Mayank Bansal deposed on the same lines. He stated that at about 2:25 am he received telephonic call from PW-10 Inspector Rakesh Duhan qua one secret information about accused Idrish. It is stated by him that he directed Inspector Rakesh Duhan to constitute a raiding team under supervision of SI Vishan Kumar and to take immediate legal action. It is further stated by him that on the same day his Reader placed before him copy of GD No. 50A regarding secret information which was seen and signed by him. The same is Ex. PW-3/A.
43. GD No. 50A (Ex. PW-3/A) dated 02.08.2021 corroborates the testimony of PW-3 as in the said GD Entry it is categorically mentioned that a secret informer arrived in their office at 2:00 pm and conveyed to SI Vishan Kumar a secret information as stated above.
DLSH010006302022 Page 37 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act
44. As per Section 42 of the NDPS Act, the Central Government and State Government may empower any officer, superior in rank to a Peon, Sepoy or Constable to take action U/s 42 i.e. conduct search, seizure and arrest as per the said section without warrant or authorization. Further, in a notification dated 14.11.1985 which is reproduced here under officials of Delhi Police superior in rank to a Constable were conferred power to take action U/s 42 of the NDPS Act:-
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of 1985) read with the Government of India, Ministry of Home Affairs Notification No.S.O. 818(E) dated the 8th November, 1985 the Administrator of the Union territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi, between sunrise and sunset, to :
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; and
(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act relating to such drug or substance;DLSH010006302022 Page 38 of 56 SC 30/2022
STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
45. As per the aforesaid notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers U/s 42(1) NDPS Act. According to the said notification r/w Section 42(1) NDPS Act, PW-3 SI Vishan Kumar was empowered to act U/s 42 of the NDPS Act.
46. In view of the above-stated circumstances, it can be held that provisions of Section 42 of NDPS Act qua recording of secret information and conducting search by empowered officer have been duly complied with in the present case, as per record.
Discussion on the point of compliance of Section 50 of NDPS Act
47. Section 50 NDPS Act is as under :-
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.DLSH010006302022 Page 39 of 56 SC 30/2022
STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
48. As per prosecution case, after apprehension of the accused, he was served with mandatory notice under Section 50 of the NDPS Act (carbon copy of the notice is Ex. PW-3/C, the version of the accused on the same is Ex. PW-3/D and original notice recovered in the personal search of the accused is Ex. PW-3/I). Since accused was illiterate, hence the notice was read over to him, on that accused apprised that he is willing to be searched in the presence of any Gazetted Officer or the Magistrate, though he refused to take search of the police party or their vehicle. As per willingness of the accused, PW-11 ACP Mayank Bansal was called at the spot. On reaching the spot PW-11 ACP Mayank Bansal, who is a Gazetted Officer, gave his introduction to the accused and also offered his own search as well as search of government vehicle, but accused refused to take the same. Thereafter, on the instructions of ACP Mayank Bansal, the search of accused was carried out by SI Vishan Kumar.
DLSH010006302022 Page 40 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act It has been deposed by PW-3 SI Vishan Kumar that at about 4:15 pm he called ACP Mayank Bansal telephonically and requested him to come to the spot, who came at the spot at 4:55 pm. ACP Mayank Bansal gave his introduction to the accused and also offered his own search as well as search of government vehicle, but accused refused to take the same. Thereafter, on the instructions of ACP Mayank Bansal, the search of accused was carried out by SI Vishan Kumar, wherein one white colour polythene was recovered from the hand of the accused which was found containing 300 gms of heroin and a transparent polythene was recovered from the right side pocket of the wearing trouser of accused which was found containing 200 gms of heroin.
These facts are corroborated by the testimony of PW-11 ACP Mayank Bansal who stated that at 4:15 pm he received phone call from SI Vishan Kumar, on that at around 4:55 pm he reached the spot. He introduced himself to the accused and apprised him about his legal rights and on his directions, SI Vishan Kumar took the body search of the accused wherein one white colour polythene was recovered from the hand of the accused which was found containing 300 gms of heroin and a transparent polythene was recovered from the right side pocket of the wearing trouser of accused which was found containing 200 gms of heroin.
It is to be noted that in the present case, personal search of the accused was conducted only as per instructions and in presence of PW-11 ACP Mayank Bansal. Thus, in the present case, the personal search of the accused was conducted in presence of Gazetted Officer i.e. PW-11 ACP Mayank Bansal wherein contraband was allegedly recovered from him.
DLSH010006302022 Page 41 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act The testimonies of PW-3 and PW-11 on this aspect are corroborated by PW-7 Ct. Ravi and PW-14 Ct. Sonu Tomar.
It may be noted that there are no cross-examination of these witnesses as regards the notice under Section 50 NDPS Act given by PW-3 SI Vishan Kumar to the accused Idrish and as regards the response of the accused to the notice, which was recorded on the copy of the notice. The witnesses were only given some suggestions in their cross-examination which they denied.
49. Based on the testimonies of recovery witnesses, it has been established that accused was duly served with notice U/s 50 NDPS Act before his bodily search was conducted and there was no violation of this mandatory provision.
50. Section 55 of the NDPS Act was duly complied with in the present matter as it is stated by PW-7 Ct. Ravi that after seizure of the contraband SI Vishan Kumar handed over rukka/ tehrir alongwith sealed parcels and carbon copy of seizure memo to him with instructions to hand over the tehrir to Duty Officer and sealed case property alongwith carbon copy of seizure memo to SHO, P.S. Crime Branch. On that he went to P.S. Crime Branch where he handed over rukka to Duty Officer and sealed parcels to SHO.
This fact is corroborated by PW-8 Inspector Govind Chauhan, the then SHO, P.S. Crime Branch who stated that at about 11:15 pm Ct. Ravi came to his office and handed over to him two sealed parcels sealed with the seal of DLSH010006302022 Page 42 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act 'V.K.' and having Marks A & B alongwith carbon copy of seizure memo. On that he also put his seal 'G.C.' on both the parcels. After confirming the FIR Number from the Duty Officer he wrote the same on both the parcels and copy of seizure memo. He also signed both the parcels and copy of seizure memo. Thereafter, he handed over the said articles to MHC(M) qua which entry was recorded in Register No. 19 bearing his signature at Point-A. The entry is Ex. PW-8/A. He also lodged a GD vide no. 83A regarding the said proceedings which is Ex. PW-8/B.
51. Section 57 of the NDPS Act which requires that :-
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
52. In the present matter, alleged recovery of contraband was effectuated by PW-3 SI Vishan Kumar and after recovery of the case property investigation of the present case was marked to PW-13 SI Lekhraj who arrested the accused. Both these police officials had sent reports U/s 57 NDPS Act to the ACP concerned.
The report by SI Vishan Kumar was sent on 03.08.2021 forwarded by the SHO on 03.08.2021 received in the office of ACP concerned vide diary no. 1369 dated 03.08.2021. The same is bearing signature of Inspector Rakesh Duhan as well as signature of ACP Mayank Bansal dated 03.08.2021 itself. The original report is on record as Ex. PW-3/H. The report by SI Lekhraj was sent on 03.08.2021 forwarded by the DLSH010006302022 Page 43 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act SHO on 03.08.2021 received in the office of ACP concerned vide diary no. 1370 dated 03.08.2021. The same is bearing signature of Inspector Rakesh Duhan as well as signature of ACP Mayank Bansal dated 03.08.2021 itself. The original report is on record as Ex. PW-10/A. In his testimony before the Court PW-11 ACP Mayank Bansal has stated that on the next day of recovery, he received both the reports i.e. Ex. PW- 3/H and Ex. PW-10/A and both the reports were signed by him when presented to him.
Thus, the said reports have been duly proved on record. The reports were submitted to ACP concerned within 48 hours of recovery. Accordingly, in the opinion of the Court the provisions of Section 57 of the NDPS Act were duly complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of recovery of contraband
53. As per prosecution case, on 02.08.2021 on the basis of secret information, a raiding party was constituted which parked its vehicle 20 meters away from Public Toilet of Seemapuri Golchakkar and a trap was laid. At about 3:40 pm accused came from the side of Seemapuri Golchakkar and came near the Public Toilet, he was carrying one weighty white colour polythene in his right hand, after crossing the road he started waiting for someone. On being identified by secret informer, accused was apprehended at about 3:50 pm. On his personal search by SI Vishan Kumar on the instructions and in presence of PW-11 ACP Mayank Bansal, one white colour polythene was recovered from the hand of the accused which was found containing 300 gms of red colour powder, on testing by field testing kit the same found to be heroin. Further, a DLSH010006302022 Page 44 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act transparent polythene was recovered from the right side pocket of the wearing trouser of accused which was found containing 200 gms of light pink colour powder, on testing by field testing kit the same found to be heroin.
54. The recovered contraband were seized separately in two white cloth pullandas marked as Marks A and B. Both pullandas were sealed with the seal 'V.K.' belonging to PW-3 SI Vishan Kumar. The same were seized vide seizure memo Ex. PW-3/E, bearing signatures of the accused Idrish. The seal was handed over after use by PW-3 SI Vishan Kumar to PW-7 Ct. Sonu Tomar. PW-3 also prepared rukka and handed over the same alongwith the two sealed parcels and seizure memo to PW-7 Ct. Ravi with the directions to hand over the rukka/ tehrir to the Duty Officer and the remaining things to the SHO.
55. PW-3, PW-7 and PW-14 are the star witnesses of the prosecution as they had apprehended the accused Idrish and had found contraband in his possession. PW-11 ACP Mayank Bansal is also a material witness on whose instructions and in whose presence contraband was recovered in the personal search of the accused.
Perusal of cross-examinations of these witnesses reveals that nothing material has come in the same so as to doubt their deposition as regards the alleged recovery. The witnesses withstood the rigors of cross-examination and corroborated material particulars regarding the recovery of contraband from the accused.
56. The testimonies of PW-3, PW-7, PW-11 and PW-14 are DLSH010006302022 Page 45 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act corroborated by testimony of PW-13, as the said witness reached the spot upon receiving the FIR, where he found the accused Idrish and PW-3 & PW-14 present.
PW-13 was also cross-examined, but there is nothing in his cross- examination, which may create a doubt as regards the recovery alleged to have been made from accused Idrish.
It may be noted that accused has stated in his statement U/s 313 Cr.P.C. that he was apprehended by the police from Seemapuri Golchakkar. He was also apprised by the police that he was in possession of heroin which he denied and asked them to get him searched by a Magistrate or Gazetted Officer. However, police officials did not do so, rather took him to the Police Station and framed him in the present case. Thus, even the accused is not disputing his apprehension by the police and the fact that he was apprised of apprehension of heroin in his possession.
57. From the testimony of the aforesaid witnesses, it stands proved that on 02.08.2021, one white colour polythene containing 300 gms red colour powder was recovered from the hand of the accused and a transparent polythene containing 200 gms light pink colour powder was recovered from the right side pocket of the wearing trouser of accused, which upon testing at the spot with the field testing kit were positive for heroin, weighing in total 500 gms.
58. The accused neither in his statement U/s 313 Cr.P.C. nor in any of the suggestions given to the prosecution witnesses, claimed animosity or acquaintance with the police officials, hence there was no ground or reason for DLSH010006302022 Page 46 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act the police to falsely implicate him in the present case. Furthermore, till date the accused has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
59. In view of the aforesaid discussions, it is held that prosecution has successfully proved that accused was apprehended by PW-3, PW-7 and PW-14 with the contraband as alleged.
Discussion on non-joining of the public witnesses
60. During course of arguments, Ld. Defense Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and credit worthy being interested witnesses.
61. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses especially PW-3 that he made sincere efforts to join public witnesses, but none agreed.
62. In this regard, PW-3 deposed that while they were on the way he asked 4-5 public persons at Shantivan Red Light, 4-5 public persons at Karkardooma Courts and 4-5 public persons at Seemapuri Golchakkar to join the raiding team, but none agreed and left without disclosing their names and DLSH010006302022 Page 47 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act addresses and no notice could be served on them.
63. From the aforesaid deposition of the witness, it is clear that he made efforts, to join public witnesses, but none agreed. The deposition of this witness as regards repeated efforts made by him to join the public witnesses is corroborated by PW-7 and PW-14.
64. Thus, the non-joining of independent witnesses despite efforts having been made in this regard, is not fatal to the prosecution case. In this regard, this Court is supported by the case law i.e. Ajmer Singh Vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
65. Further, it is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, AIRONLINE 2012 SC 728 decided on 19.10.2012, it was held :-
DLSH010006302022 Page 48 of 56 SC 30/2022STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act "In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
66. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimonies can be relied upon even without corroboration by an independent witness if same is cogent and reliable.
In Rohtas Vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
67. It is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, in Ram Swaroop Vs. State (Govt. NCT) of Delhi', 2013(7) SCALE 407 , where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, Hon'ble Apex Court inter alia observed as under :-
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
68. Thus, in view of the settled legal position, the testimony of the DLSH010006302022 Page 49 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act police officials examined in the instant case cannot be seen with suspicion merely for the reason of non-joining of independent witness as firstly it is clear that sufficient efforts were made by PW-3. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non-joining of public witnesses.
Whether recovered substance is heroin?
69. As stated earlier, 300 gms of red colour powder was recovered from the hand of the accused and 200 gms light pink colour powder was recovered from the right side pocket of the wearing trouser of accused Idrish, which were seized and were subjected to proceedings U/s 52A NDPS Act (proceedings U/s 52A NDPS Act are admitted U/s 330 BNSS/ 294 Cr.P.C. and the same are Ex. AD-1). During proceedings U/s 52A NDPS Act two samples were taken from pullanda Mark-A, they were marked as A1 and A2 and two samples were taken from pullanda Mark-B, they were marked as B1 and B2 and sent to FSL with the seal of 'F' (seal of the then Ld. MM-04 Sh. Fahad Uddin who conducted proceedings U/s 52A NDPS Act).
Sample pullandas Mark-A1 and B1 were received in the FSL with the seal of 'F', the seal was found intact. The expert analysis on the samples was carried out at FSL by Dr. Kavita Goyal, Asstt. Director (Chemistry), FSL Rohini, Delhi examined as PW-12. As per the FSL result Ex. PW-12/A, on examination of Ex. A1 (taken out from pullanda Mark-A1) it was found to contain Diacetylmorphine, Acetaminophen, Caffeine, Dextromethorphan, DLSH010006302022 Page 50 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act Morphine, Acetylcodeine, Monoacetylmorphine and Trimethoprim.
Ex. B1 (taken out from pullanda Mark-B1) was found to contain Acetaminophen, Caffeine, Alprazolam, Acetylcodeine and Monoacetylmorphine.
70. There is nothing to doubt the FSL Result Ex. PW-12/A, which was prepared by Assistant Director (Chemistry) FSL, who is a Senior Officer at FSL, Rohini and has no reason or motive to give a false or manipulated report.
71. In view of the same, it is held that the accused Idrish was found in possession of commercial quantity of heroin i.e. 300 gms in pullanda Mark-A recovered from his hand.
Further, he was also having possession of commercial quantity i.e. 200 gms of Psychotropic Substance i.e. Alprazolam.
As per notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'Alprazolam'. As per entry at serial no.178 in the said notification, the small quantity for Alprazolam is 5 gms and commercial quantity is 100 gms.
Compliance under section 52A NDPS Act
72. As a matter of fact, in the present case the sampling proceedings were conducted before the Ld. Magistrate U/s 52A of the NDPS Act. The said proceedings were admitted during trial by accused which is on record as Ex. AD-1. Two of the samples taken during proceedings U/s 52A of the NDPS Act DLSH010006302022 Page 51 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act were duly reached FSL with the seal of 'F' of Ld. MM and the FSL report has been duly proved on record as Ex. PW-12/A. The two pullandas Mark-A and Mark-B containing remaining contraband were duly proved in the Court with the seal of Ld. MM and are exhibited as Ex. P-1 and Ex. P-2.
73. Thus, in the present case there is due compliance of Section 52A NDPS Act, as the sampling proceedings were done by Ld. MM.
Videography and Photography not done during the proceedings and CCTV footage not produced
74. It was submitted on behalf of accused that, though, the spot, where the accused was allegedly apprehended was a public road where several public witnesses were available, but neither videography nor photography of the proceedings was conducted by the investigating agency.
75. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2021.
76. 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?
77. Though the videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to DLSH010006302022 Page 52 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act disbelieve the deposition of the recovery witnesses.
78. This is neither any legal provision that makes it mandatory in each case that the recovery proceedings be videographed or photographed, nor there is any law of evidence, that in absence of videography/ photography, the evidence of the prosecution witnesses cannot be relied upon. Accordingly, absence of videography/ photography of recovery proceedings by itself does not render the case of prosecution doubtful.
Presumption
79. Established jurisprudence dictates that, once possession is demonstrated, the burden of proof shifts to the individual asserting a lack of conscious possession or awareness of concealment. Section 35 of the Act codifies this principle through a statutory presumption in law. Similarly, Section 54 permits a presumption arising from the possession of illicit items. It is incumbent upon the accused to substantiate his claim of either unawareness or absence of conscious possession of contraband. Hon'ble Apex Court in Mohan Lal Vs. State of Rajasthan, Crl. (2015) 6 SCC 222 dealt with this aspect in detail and held as under :-
12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
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 DLSH010006302022 Page 53 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
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16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that DLSH010006302022 Page 54 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act 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."
80. In Noor Aga Vs. State of Punjab and Anr., (2008) 16 SCC 417, Hon'ble Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
81. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Haryana, (2002) 8 SCC 372, discussed the approach the Court should take when analyzing the evidence, as under :-
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions 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 DLSH010006302022 Page 55 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
82. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused Idrish beyond reasonable doubt. The presumption under Sections 35 and 54 of the NDPS Act is applicable in this case against the accused, as the recovery of contraband has been established beyond reasonable doubt. The accused failed to rebut this presumption, leading to the conclusion that he was knowingly and deliberately in possession of commercial quantity of heroin and Alprazolam. According to the presumption under Section 54 of the NDPS Act, since the accused was found in possession of commercial quantity of heroin, he has committed an offense punishable under Section 21(c) of the NDPS Act.
Further, according to the presumption under Section 54 of the NDPS Act, since the accused was found in possession of commercial quantity of Alprazolam, he has committed an offense punishable under Section 22(c) of the NDPS Act.
It is to be noted that in the present case charge U/s 22 (c) of the NDPS Act has not been framed, however no prejudice has been caused to the accused as FSL report was duly exhibited on record as Ex. PW-12/A. Accused had due opportunity to cross-examine the witness on that aspect. Further, there is no failure of justice due to non-framing of that charge and accused had adequate notice and opportunity to defend himself. Furthermore, offences U/s 21(c) NDPS Act and 22(c) NDPS Act are cognate offences. It is also to be noted that apart from Alprazolam, Monoacetylmorphine was also recovered in the sample taken DLSH010006302022 Page 56 of 56 SC 30/2022 STATE Vs. IDRISH FIR No. 150/2021 (Crime Branch) U/s 21(c) NDPS Act from the second pullanda (Mark B1). As per law of chemistry, Diacetylmorphine readily degrade to 6-Monoacetylmorphine and then to Morphine through a process called hydrolysis which is a natural process.
Conclusion
83. The prosecution proved beyond reasonable doubt that accused Idrish was in possession of commercial quantity of heroin as well as Alprazolam, as 300 gms of heroin and 200 gms of Alprazolam were recovered from the possession of accused Idrish. In view of the presumption under Sections 35 and 54 NDPS Act, it is presumed that accused Idrish had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug/ heroin and Psychotropic Substance/ Alprazolam without any authority or license to be in possession of the same.
Order
84. Accordingly, accused Idrish is convicted for the offence punishable under Section 21(c) of the NDPS Act qua possession of 300 gms of heroin. He is also convicted for the offence punishable under Section 22(c) of the NDPS Act qua possession of 200 gms of Alprazolam. Copy of the judgment be Digitally supplied to accused free of cost. GAJENDER signed by SINGH GAJENDER NAGAR SINGH Announced in the open Court NAGAR on 04th December, 2025 (Gajender Singh Nagar) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi