Delhi District Court
State vs Ankit on 29 August, 2025
DLSH010052542020 Page 1 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Ankit S/o Sh. Rajender Kumar, R/o E-59/399, Kalander Colony, Dilshad Garden, Delhi. ....accused (Sh. Manish Kumar, Advocate for accused) Date of institution : 18.09.2020 Date when Judgment reserved : 08.08.2025 Date of Judgment : 29.08.2025 Final Decision : Convicted JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 09.02.2019 at about 10:00 pm at Mohalla Clinic, near Red Cross Hospital, Dilshad Garden, Delhi, accused was found standing in suspicious condition and apprehended by ASI Om Prakash, HC Rohtash and Ct. Jitender who were on DLSH010052542020 Page 2 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act patrolling duty on the said day, accused after seeing them tried to run away. Upon search accused was found in possession of a white colour polythene bag in his hands and on opening the same, it was found containing a white colour plastic box (dibbi) which was further found containing a transparent polythene containing brown colour powdery substance i.e. heroin/ smack weighing about 21 grams. On the basis of which, the present FIR was registered U/s 21 NDPS Act. The sampling of the contraband was done by the police official. The contraband i.e. heroin was seized and pullandas were made, accordingly by the police official. After filling the FSL form, the case property was deposited in the maalkhana. Accused was arrested.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, charge-sheet was filed against accused Ankit U/s 21 NDPS Act.
CHARGE
3. Vide order on charge dated 13.10.2023, charge U/s 21(b) NDPS Act was framed against accused.
PROSECUTION EVIDENCE
4. In order to prove the aforesaid charge, the prosecution has examined 12 witnesses.
5. PW-1 ASI Om Prakash deposed that on 09.02.2019 he was posted as ASI at P.S. Seemapuri. On that day, he alongwith HC Rohtash and Ct.
DLSH010052542020 Page 3 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act Jitender were on patrolling duty in the area vide DD No. 43 Ex. PW-1/A. During patrolling at around 10:00 pm at Mohalla Clinic, Red Cross Hospital, Dilshad Garden, Delhi, they saw that one person was already present there. He was having a white colour polythene bag in his hand and on seeing the police officials, he started moving. On suspicion, this witness chased that person for some steps and apprehended him with the help of staff. This witness checked the said polythene bag and found one plastic box ( dibbi). He opened that plastic box and found one white colour polythene which was filled with brown matmela colour powder which was smelling like smack. He asked the said person about his name and that person disclosed his name as Ankit, S/o Sh. Rajender, age 19 years. This witness correctly identified the accused in the Court. The accused also disclosed that the recovered material was smack. This witness informed the Duty officer and SHO Inspector Abhijeet regarding the said recovery. SHO directed this witness to take action as per law. This witness directed Ct. Jitender to bring the weighing machine and field testing kit at the spot. This witness checked the recovered contraband on field testing kit and after checking it was found to be smack/ heroin.
This witness requested 3-4 public persons to join the investigation but none agreed to join the investigation and left without disclosing their names and addresses while seeking their personal excuses. No notice could be served upon them due to paucity of time.
This witness introduced himself and other police officials and apprised the accused that he is carrying smack and also apprised him about his legal rights by saying that he can get himself searched as well as he can search the police team in the presence of any Gazetted Officer or the Magistrate, DLSH010052542020 Page 4 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act however accused refused to get himself searched in the presence of any Gazetted Officer or the Magistrate as well as to search the police team in the presence of any Gazetted Officer or the Magistrate. The accused was served with the notice U/s 50 of the NDPS Act, but accused refused to exercise the said right by saying that he was uneducated and his refusal was scribed by this witness in his own handwriting. The carbon copy of the notice U/s 50 NDPS Act is Ex. PW-1/B which bears signatures of this witness at Points B and B1. The denial of the accused is marked X to X1. Accused put his signatures at Points A and A1 on the said notice.
The recovered contraband was weighed on the field testing kit and it was found to be 21 grams.
This witness took out two samples of 5-5 grams each from the recovered contraband and the same was kept in a transparent polythene and it was wrapped in white cloth pullanda and converted it into pullanda and sealed the same with the seal of OP by giving Marks A1 and A2. The remaining contraband i.e. 11 grams was kept in the same polythene and wrapped in a white cloth converted into pullanda and was sealed with the seal of OP by giving Mark-A. Thereafter, this witness filled the FSL form at the spot and put the same seal impression. The seal was handed over to HC Rohtash after use. This witness also prepared seal handing over memo which is Ex. PW-1/C. Thereafter, he seized the aforesaid case property vide seizure memo Ex. PW- 1/D. Thereafter, he prepared the rukka which is Ex. PW-1/E. He handed over the original rukka to Ct. Jitender. This witness also handed over the carbon copy of seizure memo, FSL form and the case properties to Ct. Jitender with the direction to hand over the rukka to the DO and the remaining things to SHO.
DLSH010052542020 Page 5 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act After registration of FIR, Ct. Jitender alongwith SI Shashikant came at the spot with copy of FIR and original tehrir.
Accused was produced by this witness to the second IO SI Shashikant. Second IO prepared the site plan at the instance of this witness which is Ex. PW-1/F. This witness handed over the plastic box (empty dibbi) alongwith polythene and second IO SI Shashikant prepared the pullanda and seized the same vide seizure memo Ex. PW-1/G. This witness also prepared the report U/s 57 of the NDPS Act regarding seizure of contraband and same is Ex. PW-1/H. Statement of this witness was recorded by the second IO.
MHC(M) has produced one sealed cloth parcel sealed with the seal of OP and AS having Mark-A, details of the present case and signatures of ASI Om Prakash and also of the SHO. The seals were duly intact. The said pullanda is stitched with the white thread. On opening the same, it was found containing one plastic pouch tied with a rubber band which is containing brown colour powder. On seeing the same, this witness correctly identified the same and stated that it was the same contraband which was recovered from the possession of accused. The case property i.e. polythene pouch alongwith powder is Ex. P-1 (Colly).
MHC(M) has also produced another sealed cloth parcel duly sealed with the seal of SK and bearing case particulars and also signatures of SI Shashikant. On opening the same, it was found containing one plastic box containing one white colour polythene. On seeing the same, this witness correctly identified the plastic box as recovered from the possession of accused at the time of his apprehension which was kept in the aforesaid white colour polythene. The case property i.e. plastic box and white colour polythene is Ex.
DLSH010052542020 Page 6 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act P-2 (Colly).
MHC(M) also produced one big yellow envelope having Mark-A1 and details of the present case having the seal of FSL KG DELHI. The seal was duly intact. Mark-A1 parcel was opened and found containing one cloth parcel which was cut from one end bearing Mark-A1, particulars of the case, signatures of ASI Om Prakash and SHO and seal impressions of OP and AS. It was found containing one polythene pouch which containing brown colour powder. On seeing the same, this witness correctly identified the same and stated that cloth parcel containing polythene pouch containing brown colour powder as the sample drawn by him from the contraband recovered from accused Ankit. The sample is Ex. P-3.
MHC(M) also produced one big yellow envelope having Mark-A2 and details of the present case having the seal of FSL KG DELHI. The seal was duly intact. Mark-A2 parcel was opened and found containing one cloth parcel which was cut from one end bearing Mark-A2, particulars of the case, signatures of ASI Om Prakash and SHO and seal impression of OP and AS. It was found containing one polythene pouch which containing brown colour powder. On seeing the same, this witness correctly identified the same and stated that cloth parcel containing polythene pouch containing brown colour powder as the sample drawn by him from the contraband recovered from accused Ankit. The sample is Ex. P-4.
MHC(M) also produced personal search articles of the accused which was containing original notice U/s 50 of the NDPS Act issued to accused Ankit. Same was taken on record. Original notice U/s 50 of the NDPS Act is Ex. PW-1/I. DLSH010052542020 Page 7 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act During his cross-examination on behalf of accused, it is stated by him that they were patrolling on foot and were in uniform. It is admitted by him that accused was apprehended from a public place. It is stated by him that there was no CCTV camera installed near the place of apprehension of accused. It is admitted by him that no written notice was given by him to public persons to join the investigation. It is admitted by him that seizure proceedings were not photographed or videographed. It is stated by him that Ct. Jitender left the spot alongwith case property at about 1:00 am. It is stated by him that Ct. Jitender and SI Shashikant came back at the spot at about 1:40-1:45 pm (it is to be noted that 'pm' was wrongly mentioned as it was 'am'). It is stated by him that he finally left the spot at about 2:30 am.
During his cross-examination U/s 311 Cr.P.C. on behalf of accused, it is stated by him that he asked the public persons after recovery of contraband to join the investigation. It is stated by him that there is one Mohalla Clinic near the spot and Red Cross Hospital was situated at a distance of about 20-30 steps from the spot. It is stated by him that nobody was found present at Mohalla Clinic. It is stated by him that he did not enter the hospital to ask from any person to join the investigation. It is denied by him that the accused was constructing his house and one Constable of P.S. Seemapuri was demanding illegal gratification from the accused in lieu of construction of the house and when the accused refused, he was falsely implicated in the present case.
6. PW-2 Ct. (now HC) Jitender deposed on the same lines as deposed by PW-1 ASI Om Prakash qua apprehension of accused, recovery of contraband, sampling of contraband and its seizure as well as filling of FSL DLSH010052542020 Page 8 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act form.
It is further stated by him that he went to the Police Station where he handed over the rukka to the DO and carbon copy of seizure memo, FSL form and the case properties to SHO. After registration of FIR, this witness handed over copy of FIR and original rukka to SI Shashikant. Thereafter, this witness alongwith SI Shashikant came back at the spot where ASI Om Prakash handed over the plastic dibbi and the polythene bag recovered from the accused and documents prepared by him to SI Shashikant. SI Shashikant prepared the site plan at the instance of ASI Om Prakash. SI Shashikant prepared the pullanda of the plastic dibbi and polythene bag which was sealed with the seal of SK and prepared seizure memo already Ex. PW-1/G. SI Shashikant arrested the accused vide arrest memo Ex. PW-2/A and personally searched him vide personal search memo Ex. PW-2/B. Original notice U/s 50 of the NDPS Act was recovered from the personal search of the accused. The same is already Ex. PW-1/I. SI Shashikant recorded the disclosure statement of accused Ex. PW- 2/C. Accused was brought back to the Police Station after his medical examination.
At this stage, it was observed by the Court that the case properties have already been exhibited during the testimony of PW-1 ASI Om Prakash. The Ld. Defense Counsel does not oppose the same. Hence, the production of the case property was dispensed with.
This witness was also cross-examined on behalf of accused on the same lines of PW-1 and he also answered on the same lines.
7. PW-3 HC Bhagat Singh deposed that on 01.03.2019, he was posted DLSH010052542020 Page 9 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act at P.S. Seemapuri as Constable. On the directions of SHO of P.S. Seemapuri, he obtained two sealed parcels and FSL form from MHC(M) vide RC No. 49/21/19. He deposited the parcels at FSL, Rohini, Delhi; came back to Police Station and deposited the receipt of FSL with MHC(M). Till the time the case property was in his possession, it has not been tampered with. The copy of RC is Ex. PW-3/A. Receipt/ acknowledgment of FSL is Ex. PW-3/B. During his cross-examination on behalf of accused, it is denied by him that the parcels were not intact, while the same were in his possession.
8. PW-4 HC Rohtash deposed almost on the same lines as deposed by PW-1 ASI Om Prakash and PW-2 Ct. (now HC) Jitender.
It is further stated by him that upon searching the accused one white polybag, a small plastic box was found therein. The said box was opened by ASI Om Prakash and it was found containing a whitish yellow substance. ASI Om Prakash sniffed the said substance and found that it may be smack or heroin.
It is further stated by him that Ct. Jitender came back at the spot alongwith weighing machine and testing kit. The said whitish yellow powder like substance was weighed on the weighing scale and found to be 21 grams in weight. Upon testing the said substance using the testing kit it was found that the substance was positive for heroin.
It is further stated by him that during personal search of accused two notes of Rs. 100/- were also recovered.
9. PW-5 retired SI Narendra Singh has brought original Diary register DLSH010052542020 Page 10 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act of the year 2019 of office of ACP, Seemapuri Sub Division, Delhi alongwith reports U/s 57 of the NDPS Act prepared by ASI Om Prakash and SI Shashikant in FIR No. 92/2019, P.S. Seemapuri. On 10.02.2019, this witness was posted as Reader to ACP, Seemapuri Sub Division. As per record, the report U/s 57 NDPS Act prepared by ASI Om Prakash was received in their office vide diary no. 416 dated 10.02.2019 which was seen by ACP. Original report U/s 57 NDPS Act is taken on record and the same is Ex. PW-5/A bearing signature of ACP Ram Singh at Point-A. The report U/s 57 NDPS Act prepared by SI Shashikant was received in their office vide diary no. 417 dated 10.02.2019 which was seen by ACP. Original report U/s 57 NDPS Act is taken on record and the same is Ex. PW-5/B bearing signature of ACP Ram Singh at Point-A. Photocopy of relevant entries number 416 and 417 of Diary register is Ex. PW- 5/C (OSR).
During his cross-examination on behalf of accused, it is denied by him that the entries in the register are ante-dated.
10. PW-6 Ct. (now HC) Hansbeer deposed that on 09.02.2019, he was posted at P.S. Seemapuri and was working as DD writer and his duty hours were from 4:00 pm to 12:00 midnight. He has brought the original DD register pertaining to the month of February 2019. At about 9:00 pm DD No.43B was recorded by him, copy of which is already Ex. PW-1/A. At about 10:25 pm, he registered DD No. 50B, copy of which is Ex. PW-6/A (OSR). At 10:30 pm, he registered DD No. 51B, copy of which is Ex. PW-6/B (OSR).
During his cross-examination on behalf of accused, it is denied by him that the entries in DD register are ante-dated and ante-timed.
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11. PW-7 retired SI Sohan Pal deposed that on 10.02.2019, he was posted at P.S. Seemapuri and was working as Duty Officer from 12:00 midnight to 8:00 am. At about 1:12 am, Ct. Jitender brought one rukka sent by ASI Om Prakash, on the basis of which, this witness got registered the FIR on CCTNS, through Computer Operator. Copy of FIR is Ex. PW-7/A. After registration of FIR, this witness handed over copy of FIR and original rukka to Ct. Jitender to be handed over to SI Shashikant after making his (this witness's) endorsement Ex. PW-7/B on the rukka.
During his cross-examination on behalf of accused, it is denied by him that FIR is ante-timed and ante-dated.
12. PW-8 Inspector Abhijeet Kumar deposed that on 10.02.2019, he was posted at P.S. Seemapuri and was looking after the work of SHO. At about 1:10 am, Ct. Jitender came to his office and handed over to him three sealed parcels sealed with the seal of 'OP' and having Marks A, A1 and A2 alongwith FSL Form having seal of OP and carbon copy of seizure memo. This witness affixed his seal on the said three parcels with his seal of AS and affixed his sample seal AS on FSL Form. After confirming the FIR Number from the Duty Officer, this witness wrote the same on all the parcels, FSL Form and copy of seizure memo. This witness also signed all the three parcels, FSL Form and copy of seizure memo. He then called the MHC(M) CP alongwith register no. 19 in his office and MHC(M) has made entry of all the details in the register no. 19 and this witness handed over case property and all documents to MHC(M) CP. This witness also signed at Point-A against the relevant entry in register no.
DLSH010052542020 Page 12 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 19 which is Ex. PW-8/A (OSR). In this regard, he lodged a GD No. 5A at about 1:34 am dated 10.02.2019 and same is Ex. PW-8/B. He had also forwarded one report dated 10.02.2019 U/s 57 of the NDPS Act prepared by ASI Om Prakash regarding recovery of contraband. The said report is already Ex. PW-5/A on the judicial record. On that day, this witness also forwarded report U/s 57 of the NDPS Act regarding arrest of accused prepared by SI Shashikant which is already Ex. PW-5/B on the judicial record. Statement of this witness was recorded by the IO.
During his cross-examination on behalf of accused, it is denied by him that Ct. Jitender never came to his office, or that the documents were prepared later on.
13. PW-9 HC Rakesh, No. 2440/SHD, posted at P.S. Seemapuri, Delhi deposed that at present he is posted as MHC(M), P.S. Seemapuri. He has brought the original registers no. 19 and 21 of maalkhana. Copy of entry no. 68/2123 in register no. 19 is already Ex. PW-8/A. Copy of entry no. 72/2127 in register no. 19 is Ex. PW-9/A (OSR). Copy of RC No. 49/21/19 and acknowledgment of FSL are already Ex. PW-3/A and Ex. PW-3/B.
14. PW-10 Dr. Kavita Goyal deposed that she is working at FSL Rohini since 1999. On 01.03.2019, she was posted as Assistant Director (Chemistry) at FSL Rohini. On that day two sealed parcels Mark A1 and A2 sealed with the seal of OP and AS in FIR No. 92/2019 dated 10.02.2019 U/s 21 NDPS Act, P.S. Seemapuri alongwith specimen seals, forwarding letter, copy of FIR, copy of seizure memo etc. were received in their office from SHO, P.S. DLSH010052542020 Page 13 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act Seempuri vide letter reference no. 622-R/SHO/Seemapuri dated 01.03.2019. Same were marked to her division for chemical examination. The seals were intact and were tallying with specimen seals. On opening the parcel Mark-A1, it was found containing light brown coloured powdery material, weight approx. 5.50 gms with polythene and it was mark as Ex. A1. On opening the parcel Mark-A2, it was found containing light brown coloured powdery material, weight approx. 5.50 gms with polythene and it was mark as Ex. A2.
On chemical, TLC & GC-MS examination of the substance i.e. Ex. A1 and Ex. A2, the same were found to contain diacetylmorphine, acetaminophene, monoacetylmorphine and trimethoprim. After the examination the remnants of the exhibits were sealed with the seal of K.G. FSL DELHI.
She prepared the detailed report bearing no. SFSL DLH/2100/CHEM/654/19 dated 29.05.2019 which is Ex. PW-10/A (running into two pages) bearing her signature at Points-A and B. She submitted her report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
During her cross-examination on behalf of accused, it is denied by her that she prepared a false report at the instance of police persons.
15. PW-11 SI (now Inspector) Shashikant deposed that on 10.02.2019, he was posted at P.S. Seemapuri as SI. On that day Ct. Jitender handed over copy of FIR and original rukka to this witness in the room of Duty Officer. Thereafter, this witness alongwith Ct. Jitender reached at the spot i.e. Mohalla Clinic, near Red Cross Hospital, Dilshad Garden, Delhi, where ASI Om Prakash and HC Rohtash met this witness alongwith accused (correctly identified by this DLSH010052542020 Page 14 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act witness in the Court). ASI Om Prakash handed over the documents prepared by him to this witness. This witness entered the FIR number on the documents prepared by ASI Om Prakash. ASI Om Prakash also handed over white colour polythene and one empty plastic box to this witness from which the polybag containing heroin was recovered. This witness kept the empty plastic box in the same polythene, prepared cloth pullanda and sealed the same with the seal of SK and prepared seizure memo already Ex. PW-1/G. This witness handed over the seal to HC Rohtash after use and he (this witness) also prepared seal handing over memo Ex. PW-11/A. This witness prepared site plan at the instance of ASI Om Prakash already Ex. PW-1/F. This witness recorded the statement of ASI Om Prakash. This witness arrested the accused vide arrest memo already Ex. PW-2/A and personally searched him vide personal search memo already Ex. PW-2/B. From the personal search of accused, one original notice U/s 50 of the NDPS Act and two currency notes of Rs. 100/- were recovered. Mother of the accused also arrived at the spot. This witness verified the age of accused from her and gave her information of arrest of accused. This witness prepared age memo of the accused as the mother of accused handed over copy of the certificate of school of accused to this witness. He recorded the disclosure statement of accused already Ex. PW-2/C. After medical examination of the accused, he was brought back to the Police Station where this witness lodged DD No. 9A which is Ex. PW-11/B and he deposited the sealed parcels with MHC(M). Accused was produced before the Court and this witness obtained one day PC remand of accused for search of source of contraband but in vain. This witness also prepared report U/s 57 of the NDPS Act regarding arrest of accused already Ex. PW-5/B. During investigation, this witness sent DLSH010052542020 Page 15 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act the exhibits to FSL for analysis and obtained the report of FSL. After completion of investigation, this witness submitted the charge-sheet for trial.
During his cross-examination on behalf of accused, it is stated by him that he reached the spot at about 1:40 am. It is admitted by him that the original notice U/s 50 of the NDPS Act recovered from the personal search of the accused does not bear the FIR number of the present case. It is stated by him that he had not mentioned the FIR number on the original notice U/s 50 of the NDPS Act Ex. PW-1/I as the same was subsequently recovered during personal search of accused conducted after the arrest of accused. It is stated by him that nobody was present in the nearby Mohalla Clinic and at the gate of Red Cross Hospital as it was late in night. It is stated by him that he did not enter inside the hospital. It is stated by him that no guard met him at the gate of Red Cross Hospital when he went there. It is stated by him that he had never seen the contraband recovered from the accused.
16. PW-12 retired ACP Ram Singh deposed that on 10.02.2019 he was posted as ACP, Seemapuri Sub-Division. On that day, his Reader placed before him two reports U/s 57 of the NDPS Act in the present case prepared by ASI Om Prakash dated 10.02.2019 regarding seizure of contraband and prepared by SI Shashikant dated 10.02.2019 regarding arrest of the accused. This witness has seen both the reports and signed the same. The reports are already Ex. PW- 5/A and Ex. PW-5/B which bear his signatures at Point-A, respectively.
During his cross-examination on behalf of accused, it is denied by him that no report U/s 57 of the NDPS Act was seen by him on 10.02.2019 or that the same was prepared later on.
DLSH010052542020 Page 16 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
17. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 08.05.2025.
STATEMENT OF ACCUSED
18. 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 his signatures were obtained by police officials on 10-12 blank papers. It is stated by him that he has been falsely implicated in the present case by the police officials, hence, they identified him. It is stated by him that being the police officials they have deposed against him in order to prove their false case. It is stated by him that he has been falsely implicated in the present case. It is stated by him that on 09.02.2019, he was at his house, where construction work was going on and in between 11:00 am-12:00 noon, some police officials in civil clothes came to his house and asked him as to whether he has the requisite permission to carry out the construction. When he told them that he does not have the permission, they took him to a Police Post Seemapuri where he was locked up. He saw his wife, his brother-in-law and sister-in-law come to the said Police Chowki. As the marriage between him and his wife was a love marriage, therefore, his in-laws in connivance with the police officials implicated him in the present case. It is stated by him that his brother-in-law is involved in activities relating to drugs, but he has no concern in this regard. It is stated by him that the police officials had also asked him at the Police Post to give divorce to his wife, but when he refused, they planted the contraband on him and falsely implicated him in the present case. It is stated by DLSH010052542020 Page 17 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act him that he was also tortured in the Chowki by police officials namely Monu Chauhan, Mohit and one Prince. ASI Om Prakash, who is involved in the present case was involved initially. It is stated by him that when he was taken by the police officials from his house, three labourers who were working in the construction work at the house, also saw that. It is stated by him that their names are Rashid, Tulsi and Nanua. It is stated by him that after he was granted bail in this case, his brother-in-law also carried out acid attack on him and his wife, in which his wife suffered serious acid burn injuries. In this regard, FIR No. 385/2021, P.S. Seemapuri, was also lodged against his brother-in-law namely Tej Singh @ Rahul.
Accused chose to lead defence evidence.
DEFENSE EVIDENCE
19. In order to substantiate his defense, accused has examined 01 witness.
20. DW-1 Sh. Tulsiram deposed that on 09.02.2019 some construction work was going on in the house of accused Ankit (present in the Court). Rashid was the mason and this witness alongwith one Nanwa were labourer. At about 2:00-2:30 pm, this witness went down stairs to bring the construction material when 3-4 persons in civil dress came there and asked him to call the owner of the house. They took accused Ankit alongwith them to police post. This witness does not know as to what happened later on.
During his cross-examination by Ld. Addl. PP for the State, it is stated by him that accused Ankit is resident of his locality. It is stated by him DLSH010052542020 Page 18 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act that he knew accused Ankit since his childhood. It is admitted by him that his family and family of accused have cordial relations with each other and they used to help each other in case of need. It is admitted by him that he came to know about the arrest of accused. It is stated by him that till date he has not made any complaint before any higher police authority or before the Court that accused has been falsely implicated in the present case. It is stated by him that he is stating these facts for the first time in his evidence. It is denied by him that he is intentionally concocting a false story at the instance of accused in order to save him from conviction in the present case.
21. No other witness was examined by accused in his defense. Thereafter, D.E. was closed vide order dated 21.07.2025.
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 has been complied with in the present matter at the time of recovery and thereafter. It is contended that 21 grams heroin was recovered from the accused. There is nothing on record to suggest that police officials had any enmity with the accused. Thus, the offence U/s 21(b) of the NDPS Act is proved beyond reasonable doubt against the accused.
24. Per contra, it is contended on behalf of the accused that accused has DLSH010052542020 Page 19 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act been falsely implicated in the present case as he was constructing his house and officials from P.S. Seemapuri contacting him for illegal gratification and on his refusal he was falsely implicated in the present case, qua which a witness has already been examined in defense evidence. It is contended that the contraband was planted on the accused that is why no public person was joined in the investigation. Even the reply on the notice U/s 50 NDPS Act was in the writing of IO and signature of accused was added later on. It is contended that there is no CCTV camera installed nearby the place of apprehension of accused to show that the proceedings conducted by the police are genuine. It is contended that there is no photography or videography of the seizure proceedings on the spot which raised doubt qua alleged story of prosecution. It is contended that police should have taken the accused to a Gazetted Officer or Magistrate even after his refusal which has not been done by the police in the present case. It is contended that though the alleged contraband was recovered from the accused on 09.02.2019, however articles were sent to FSL on 01.03.2019, thus there is considerable delay in sending the articles to FSL. It is contended that proceedings U/s 52A NDPS Act were not conducted before Ld. Judicial Magistrate.
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 DLSH010052542020 Page 20 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 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
(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."DLSH010052542020 Page 21 of 63 SC 166/2020
STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act (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--
(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--DLSH010052542020 Page 22 of 63 SC 166/2020
STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
(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 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 charges U/s 21(b) NDPS Act, the prosecution DLSH010052542020 Page 23 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act is required to prove the following facts:
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative /heroin.
(4) That the quantity of the contraband was intermediate for Section 21(b) 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 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 DLSH010052542020 Page 24 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 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. 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 DLSH010052542020 Page 25 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 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 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 DLSH010052542020 Page 26 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
38. 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 NDPS Act
39. Section 42 NDPS Act is as under :-
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para- military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been DLSH010052542020 Page 27 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
40. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to record the secret information in writing and send the information so reduced into writing within 72 hours of its receipt to immediate official superior.
41. The present case is a case of chance recovery as no secret DLSH010052542020 Page 28 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act information was received before the apprehension of the accused. Accordingly, the recording of secret information in terms of Section 42(1) NDPS Act and forwarding the same to immediate official superior within 72 hours was not required in the present case. Thus, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case.
Discussion on the point of compliance of Section 50 of NDPS Act
42. Section 50 NDPS Act is as under :-
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
43. The legal position in respect to Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State Vs. Baldev Singh, DLSH010052542020 Page 29 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act AIR 1999 SC 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of chance recovery. The relevant para of this judgment reads as under:-
"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted."
(emphasis supplied)
44. In the case titled as State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299, Hon'ble Apex Court had observed as under:-
"25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows:-
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act."
(emphasis supplied) DLSH010052542020 Page 30 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
45. In State of H.P. Vs. Sunil Kumar (05.03.2014 - SC) : MANU/ SC/0193/2014, a case of chance recovery, Hon'ble Apex Court considered the question regarding application of Section 50 NDPS Act. Relevant para of the said judgment dealing with chance recovery and notice U/s 50 NDPS Act are reproduced as under :-
"Chance recovery :-
11. The State is in appeal against the acquittal of Sunil Kumar and the broad submission is that the recovery of charas from him was a chance recovery. Under these circumstances, in view of the Constitution Bench decision in Baldev Singh which endorsed the view taken in State of Punjab v. Balbir Singh (1994) 3 SCC 299 the personal search of Sunil Kumar resulting in the recovery of contraband did not violate Section 50 of the Act. Reliance was placed by learned Counsel on paragraph 25 in Balbir Singh which was also endorsed by the Constitution Bench.
It was submitted that it is only after a chance or accidental recovery of any narcotic drug or psychotropic substance by any police officer that the provisions of the Act would come into play. It is then that the empowered officer should be informed and that empowered officer should thereafter proceed to investigate the matter in accordance with the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we need to firstly understand what a 'chance recovery' is. The next question would be whether the provisions of Section 50 of the Act would apply when there is a chance recovery.
14. The expression 'chance recovery' has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 this Court considered a chance recovery as one when a police officer "stumbles on"
DLSH010052542020 Page 31 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC 608 the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a 'chance recovery'.
15. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a "positive suspicion" that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected notwithstanding the submission that drugs are easily available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs and indeed that is also not the case set up in this appeal. It was plainly a chance or accidental or unexpected recovery of charas-Sunil Kumar could well have been carrying any other contraband such as, smuggled gold, stolen property or an illegal firearm or even some other drug.
17. We are not going into the issue whether the personal or body search of Sunil Kumar (without a warrant) was at all permitted by law under these circumstances. That was not an issue raised or canvassed before the Trial Court or the High Court or even before us, although it has been adverted to in the written submissions by Learned Counsel assisting us on behalf of Sunil Kumar. Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is concerned, the issue is no longer res integra in view of the decision of the Constitution Bench in Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though the Chamba area may be one where such drugs are easily available. At best, it could be said the police officers suspected Sunil Kumar of carrying drugs and nothing more. Mere suspicion, even if it is 'positive suspicion' or grave suspicion cannot be equated with 'reason to believe'. Joti Parshad v. State of Haryana 1993 Supp (2) SCC 497 and Sheo Nath Singh v. Appellate Assistant CIT (1972) 3 SCC 234. These are two completely different concepts. It is this positive suspicion, and not any reason to believe, that led to the chance recovery of charas from the person of Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. Bharatbhai Bhagwanjibhai v. State of Gujarat (2002) 8 SCC 327 The procedure to be followed when there is prior information DLSH010052542020 Page 32 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act of the carrying of contraband drugs is laid down in the Act and it is nobody's case that that procedure was followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that Sunil Kumar was carrying some contraband, therefore, it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of Section 50 of the Act ought to have been complied with. The recovery of charas on the body or personal search of Sunil Kumar was clearly a chance recovery and, in view of Baldev Singh, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act."
46. In view of the aforesaid judgment, in a case of chance recovery, like the present one, notice U/s 50 NDPS Act is not required to be given before the search of the accused is conducted.
However, it is noted that as soon as the police official PW-1 ASI Om Prakash came to know that the accused was carrying heroin/ smack, upon checking the polythene bag containing a plastic box ( dibbi) containing brown matmela colour powder in a white colour polythene which was smelling like smack/ heroin, the further proceedings were conducted as per the provisions of NDPS Act, as thereafter, PW-1 ASI Om Prakash gave notice U/s 50 NDPS Act to the accused before his complete bodily search was conducted. Thus, after the apprehension of accused and chance recovery of contraband by PW-1 and before his bodily search was conducted, mandatory notice U/s 50 NDPS Act was served upon him and only after his refusal to avail his legal rights, his bodily search was carried out.
However, in his statement recorded under Section 313 Cr.P.C., the accused has denied having been served with any such notice and claimed that at the time of his arrest, his signatures were taken by the police on some blank DLSH010052542020 Page 33 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act papers.
47. Given the accused's claim, it is necessary to determine whether a notice under Section 50 of the NDPS Act was served upon him prior to conducting his bodily search.
48. PW-1 in his deposition categorically stated that he prepared notice U/s 50 NDPS Act and handed over the same to the accused. He also testified that he apprised the accused regarding his legal rights, as mentioned in the notice U/s 50 NDPS Act. Similarly, deposed by other members of the police party i.e. PW-2 Ct. Jitender and PW-4 HC Rohtash. Their contention also found support from the testimony of PW-11 IO SI Shashikant who had stated that in the personal search of accused he found the original notice U/s 50 NDPS Act (carbon copy of the said notice is also on record exhibited as Ex. PW-1/B bearing signatures of accused at Point-A and Point-A1). Original notice U/s 50 NDPS Act is on record and exhibited as Ex. PW-1/I. It may be noted that there is no cross-examination of this witness as regards the notice given by him to the accused and as regards the response of the accused to the notice, which was recorded on the copy of the notice. The witness was only given some suggestions in his cross-examination which he denied.
49. As stated earlier, it is the case of the prosecution that the recovery was a chance recovery, wherein from the polythene kept in the hand of accused, a plastic box (dibbi) containing brown matmela colour powder in a white colour DLSH010052542020 Page 34 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act polythene, was found which was smelling like smack/ heroin and only thereafter, information was given at the Police Station. Therefore, as per the prosecution case, the contents of the white coloured polythene were checked to conduct the investigation in the present case and as such, it was not possible to give notice U/s 50 NDPS Act, before the contents of the white coloured polythene was checked by the police official. It is precisely for this reason, as pointed out by the Hon'ble Apex Court in the aforesaid judgments, that the requirement of Section 50 of NDPS Act is dispensed with in cases of chance recovery.
However, after the chance recovery, the bodily search of the accused was duly carried out upon giving him notice U/s 50 NDPS Act. Thus, as far as the bodily search of the accused is concerned, the investigating agency duly complied with Section 50 NDPS Act.
50. In view of the testimonies of the prosecution witnesses, the prosecution has successfully proved on record that the accused was properly served with the notice U/s 50 of the NDPS Act before his bodily search and there was no violation of the said mandatory provision.
51. It may be noted that from the bodily search of the accused, no contraband was recovered. The contraband (heroin) was found in a polythene in the hand of the accused. As regards recovery made from bag or polythene carried by suspect is concerned, it has been observed by the Hon'ble Apex Court that the provisions of section 50 NDPS Act do not apply to recoveries other than those made from the person of the accused.
DLSH010052542020 Page 35 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
52. In Saikou Jabbi Vs. State of Maharashtra, MANU/SC/0991/2003 , heroine was found in a bag being carried by suspect. It was held that Section 50 was not applicable as it applies to search of a person.
53. Hon'ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 made following observations in this regard :-
"16. As regards applicability of the requirements Under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based "only" on the basis of possession of an illicit Article recovered from personal search in violation of the requirements Under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the Accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with . In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by Accused-Baljinder Singh with the other Accused accompanying him, their presence and possession of the contraband material stood completely established."DLSH010052542020 Page 36 of 63 SC 166/2020
STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
54. In view of the law laid down in State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 as well as other judgments cited above, it is held that the compliance of Section 50 NDPS Act is not mandatory in the present case, as the recovery was effected from a polythene carried by the accused in his hand and not from the person of the accused.
Discussion on the point of recovery of contraband
55. As per prosecution case, on 09.02.2019, while PW-1 ASI Om Prakash alongwith HC Rohtash and Ct. Jitender were on patrolling duty in the area of P.S. Seemapuri on foot, at about 10:00 pm, they reached Mohalla Clinic, Red Cross Hospital, Dilshad Garden, Delhi, where a person was present having a white colour polythene in his hand, he started moving on seeing the police officials. On suspicion, he was chased and apprehended. The accused was found in possession of one white colour polythene. On checking the same, it was found containing a plastic box (dibbi) containing brown matmela colour powder in a white colour polythene, which was smelling like smack/ heroin. Thereafter, ASI Om Prakash called Duty Officer and informed him about apprehension of accused and recovery of smack like substance with respect to which DD No. 50B Ex. PW-6/A was recorded by PW-6 Ct. Hansbeer, Duty Officer. In the said DD itself PW-1 ASI Om Prakash was directed to take action as per law. Thereafter, PW-1 ASI Om Prakash sent PW-2 Ct. Jitender to the Police Station who vide DD No. 51B recorded at 10:30 pm on 09.02.2019 brought electronic weighing machine and field testing kit at the spot. With the help of which DLSH010052542020 Page 37 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act contraband was tested on field testing kit, it came positive for smack/ heroin, 3- 4 public persons were asked to join investigation, but none agreed to join investigation and left without disclosing their names and addresses citing their personal excuses and no notice could be served upon them due to paucity of time. The recovered substance was weighed on the weighing machine and was found to be 21 gms. PW-1 ASI Om Prakash apprised the accused about his legal rights and served upon him notice under section 50 of the NDPS Act and bodily search of accused was conducted, but no further contraband was recovered from his possession.
56. Out of the recovered contraband, two samples of 5 gms each were taken out in transparent polythene, thereafter wrapped in white cloth and converted into pullandas and sealed with the seal of OP by giving Mark-A1 and Mark-A2 and the remaining contraband was kept in the same polythene and wrapped in white cloth and converted into pullanda and sealed with the seal of OP by giving Mark-A. The aforesaid articles were seized vide seizure memo Ex. PW-1/D, bearing signatures of the accused. The seal was handed over after used by PW-1 ASI Om Prakash to PW-4 HC Rohtash and PW-1 also filled the FSL Form. PW-1 ASI Om Prakash prepared rukka and handed over the same alongwith the three sealed parcels, carbon copy of seizure memo, the FSL Form and case properties to PW-2 Ct. Jitender with the directions to hand over the rukka to the DO and the remaining things to the SHO.
57. PW-1, PW-2 and PW-4 are the star witnesses of the prosecution as they had apprehended the accused and had found in his possession a white DLSH010052542020 Page 38 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act colour polythene bag containing 21 grams of smack/ heroin.
Perusal of cross-examinations of these witnesses reveals that nothing material has come in the same so as to doubt their deposition as regards the alleged recovery. The witness withstood the rigors of cross-examination and corroborated material particulars regarding the recovery of contraband from the accused.
58. The deposition of PW-1, PW-2 and PW-4 is corroborated by the contents of DD No.50B Ex. PW-6/A wherein it is mentioned that during patrolling they apprehended the accused near Mohalla Clinic, Red Cross Hospital, Dilshad Garden and accused was found to be in possession of smack like powder. The time on this DD entry is 10:25 pm which is in line with depositions of PW-1, PW-2 and PW-4 who stated that they reached at the spot at about 10:00 pm. The testimonies of PW-1, PW-2 and PW-4 is further corroborated by testimony of PW-11, as the said witnesses reached the spot upon receiving the FIR, where he found the accused and PW-1, PW-2 and PW- 4 present.
PW-11 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 the accused.
It may be pointed out that a suggestion was given to PW-1 that accused was lifted from his house as he was constructing his house and refused the demand of illegal gratification raised by a Constable of P.S. Seemapuri, which he denied. The said defence taken during the cross-examination of PW-1 and other prosecution witnesses and also tried to be proved by leading defense DLSH010052542020 Page 39 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act evidence is contrary to the defense taken by the accused in answer to question no. 15 in statement U/s 313 Cr.P.C. as the accused stated that :-
'On 09.02.2019, he was at his house, where construction work was going on and in between 11:00 am-12:00 noon, some police officials in civil clothes came to his house and asked him as to whether he has the requisite permission to carry out the construction. When he told them that he does not have the permission, they took him to a Police Post Seemapuri where he was locked up. He saw his wife, his brother-in-law and sister-in-law come to the said Police Chowki. As the marriage between him and his wife was a love marriage, therefore, his in-laws in connivance with the police officials implicated him in the present case. His brother-in-law is involved in activities relating to drugs, but he has no concern in this regard. It is stated by him that the police officials had also asked him at the Police Post to give divorce to his wife, but when he refused, they planted the contraband on him and falsely implicated him in the present case. It is stated by him that he was also tortured in the Chowki by police officials namely Monu Chauhan, Mohit and one Prince. ASI Om Prakash, who is involved in the present case was involved initially. It is stated by him that when he was taken by the police officials from his house, three labourers who were working in the construction work at the house, also saw that. It is stated by him that their names are Rashid, Tulsi and Nanua. It is stated by him that after he was granted bail in this case, his brother- in-law also carried out acid attack on him and his wife, in which his wife suffered serious acid burn injuries. In this regard, FIR No. 385/2021, P.S. Seemapuri, was also lodged against his brother-in-law namely Tej Singh @ Rahul.' DLSH010052542020 Page 40 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
59. This story of being falsely implicated by the police officials at the instance of his in-laws was not put to any of the police witness during their cross-examination. Apparently, the accused is taking various defenses at different stages of the trial only to save himself from conviction. However, none of the said defenses could be established by the accused either through the cross-examination of prosecution witnesses, or through the testimony of defense witness.
60. From the testimony of the aforesaid witnesses, it stands proved that on 09.02.2019, a white polythene containing brownish colour powder, which upon testing at the spot with the field testing kit was positive for heroin, was recovered from accused, weighing in total 21 gms.
61. 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 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.
62. In view of the aforesaid discussions, it is held that prosecution has successfully proved that the accused was apprehended by PW-1, PW-2 and PW- 4 with the contraband as alleged.DLSH010052542020 Page 41 of 63 SC 166/2020
STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act Discussion on non-joining of the public witnesses
63. 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.
64. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses especially PW-1 that he made sincere efforts to join public witnesses, but none agreed.
65. In this regard, PW-1 deposed that it was a chance recovery wherein accused was apprehended and smack was recovered from him at the spot. Thereafter, he asked 3-4 public persons to join the investigation, but none agreed and left without disclosing their names and addresses and no notice could be served on them.
66. 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-2 and PW-4.
67. Thus, the non-joining of independent witnesses despite efforts DLSH010052542020 Page 42 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 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."
68. Further, it is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, AIRONLINE 2012 SC 728 decided on 19.10.2012, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
69. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even DLSH010052542020 Page 43 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 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'.
70. 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."
71. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by PW-1. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between the accused and the police officials has been pointed out. There is no documentary proof that house of the accused was under construction or that DW-1 was labourer in the same. There is no DLSH010052542020 Page 44 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act documentary proof on record regarding dispute between accused and his in- laws. There is nothing on record to suggest as to why police has favoured the brother-in-law/ in-laws of accused. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
72. In the present case, chance recovery was made by PW-1 ASI Om Prakash who after chance recovery informed the Duty Officer and as per instructions of SHO, he himself seized the case property i.e. acted as first IO of the case. Though, no contention has been raised on behalf of accused that complainant cannot be the IO.
Furthermore, in the case titled as Mukesh Singh Vs. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700, decided on 31.08.2020 by bench of five Ld. Justices, Hon'ble Apex Court in para no. 102 has held that :-
"I. That the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan, (1976) 1 SCC 15; Megha Singh v. State of Haryana,(1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam, (2010) 15 SCC 369 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal;
II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of DLSH010052542020 Page 45 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act Punjab, (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."
Thus, in view of the above-mentioned judgment, in the case under NDPS Act the complainant can be the IO of the case.
Discussion on the point of compliance of Section 55 of NDPS Act
73. Section 55 NDPS Act reads as under :-
55. Police to take charge of articles seized and delivered.--
An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
74. Section 55 of the NDPS Act was duly complied with in the present matter as SHO PW-8 Inspector Abhijeet Kumar has also put his seal 'AS' on the samples, contraband recovered and FSL form.
75. It may be noted that the case properties were also produced during the testimony of PW-1 ASI Om Prakash and opened in the Court and parcel Mark-A was found bearing the seals of OP and AS. The observation of the Court at the time of opening the case property during the testimony of PW-1 is relevant to establish that parcel Mark-A was also sealed with the seals of OP and AS which remained intact throughout the proceedings till the time the Parcel A was opened in the Court.
DLSH010052542020 Page 46 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
76. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of OP by PW-1 ASI Om Prakash was further sealed at the Police Station by PW-8 SHO Inspector Abhijeet Kumar with the seal of AS and both seals were found intact by Ms. Kavita Goel, Asstt. Director (Chemistry) FSL on the two samples Mark-A1 and Mark-A2, which she analysed in terms of report Ex. PW-10/A and the remaining parcel Mark-A was found intact bearing the seal of OP and AS, when the same was produced before the Court and exhibited as Ex. P-1 on 22.10.2024.
Whether recovered substance is heroin?
77. As stated earlier, 21 gms of brown matmela colour substance was recovered from the accused, out of which two samples of 5 gms each were drawn at the spot itself and sent to FSL with the seal of OP and counter seal of AS. The said substance was also tested at the spot and found to be positive for heroin, as deposed by PW-1. The expert analysis on the samples was carried out at FSL by Ms. Kavita Goel, Asstt. Director (Chemistry) FSL Rohini. As per the FSL result Ex. PW-10/A, two sealed parcels Mark-A1 and Mark-A2 bearing the seal of OP and AS were analyzed and were found containing light brown colour powdery material, which upon examination, were found to contain 'Diacetylmorphine' 'Acetaminophen', '6-Monoacetylmorphine' & 'Trimethoprim'.
78. There is nothing to doubt the FSL Result Ex. PW-10/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.
DLSH010052542020 Page 47 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
79. In view of the same, it is held that the accused was found in possession of intermediate quantity of heroin/ smack.
Compliance under section 52A NDPS Act
80. Ld. Counsel for accused had submitted that as the sampling proceedings in the present case were not conducted by the Magistrate U/s 52A NDPS Act, hence as per judgment of Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No. 1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC 379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, 2024 DHC 5099, the trial stand vitiated, and the accused is entitled to acquittal.
81. Admittedly, sampling in the present case was done at the spot and not before the Magistrate as per section 52A NDPS Act. The question before the Court is whether the entire trial stand vitiated in view of the said non- compliance?
82. In Mohan Lal (supra), Hon'ble Apex Court while discussing the ambit and purport of section 52 A NDPS Act, observed as under:-
"16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted DLSH010052542020 Page 48 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub- sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
........
19. [...] There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub- section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."
83. In Yusuf @ Asif (supra), Hon'ble Apex Court while setting aside the conviction of appellants therein, relied upon Mohan Lal (supra) and observed as under :-
"10. [...] it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is DLSH010052542020 Page 49 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.
xxx xxx xxx
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub- section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
xxx xxx xxx
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
84. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif DLSH010052542020 Page 50 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 2024 INSC 1045, discussed the effect of non-compliance of section 52A NDPS Act on the outcome of trial and summarized the observations in para 39 as under :-
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."
85. In a very recent judgment of Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No. 250/25, Hon'ble Apex Court answered the question whether non-compliance of section 52A NDPS Act leads to automatic acquittal. This was the only ground on which the conviction upheld by Hon'ble DLSH010052542020 Page 51 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act High Court was under challenged before the Apex court. Relevant paras indicating the issue directly before the Hon'ble Court are as under :-
"3. The only contention raised before us by the learned counsel appearing for the appellant herein is that the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS Act.
4. The learned counsel appearing for the appellant placed strong reliance on the decision of this Court rendered in the case of Union of India v. Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good his submission that non- compliance of Section 52A of the NDPS Act along with the relevant rules, would vitiate the entire trial and the conviction."
86. Hon'ble Apex Court discussed at length Mohan Lal (supra), Yusuf @ Asif (supra) and several other judgments and discussed the outcome thereof in the following paras :-
"24.What is discernible from the various decisions referred to by us, is that mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not by itself render the trial vitiated or into an automatic acquittal. In all instances where this Court set-aside the order of conviction, it did so not solely for the reason that there was a violation of Section 52A but because of and on the strength of the other discrepancies or shortcomings in the prosecution's case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra- careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of DLSH010052542020 Page 52 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act the aspects of possession, seizure or recovery of such material in the first place.
27.In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in- charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait- jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was DLSH010052542020 Page 53 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc.
31.At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved.
32.Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such DLSH010052542020 Page 54 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra).
33.Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking.
The Hon'ble Court finally summarized the law on the subject in para 50 as under :-
"50.We summarize our final conclusion as under: -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing DLSH010052542020 Page 55 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-
well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt."
(emphasis supplied)
87. Though, in the present case there is no compliance of section 52A NDPS Act, as the sampling proceedings were done by the IO at the spot, however, in view of the judgment in Kashif (supra) and Bhart Ambale (supra), DLSH010052542020 Page 56 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act the said fact by itself does not vitiate the trial. As held by the Hon'ble Court in absence of compliance u/s 52A NDPS Act the onus is upon the prosecution to prove by cogent evidence that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
88. Moreover, as per FSL report Ex. PW-10/A, two parcels Mark-A1 and Mark-A2 were received at FSL and were examined by Ms. Kavita Goel, Asstt. Dirctor (Chemistry) FSL Rohini. Parcel Mark-A1 was found bearing three seals of OP and two seals of AS. Parcel Mark-A2 was also found bearing three seals of OP and two seals of AS. Thus, as per the FSL result Ex. PW-10/A, the samples of the case property (two pullandas) which were sealed at the spot with the seal of OP and were counter sealed by SHO Inspector Abhijeet Kumar with his seal of AS, were received in the same condition with all the seals intact in the FSL on 01.03.2019.
89. It may be noted that the case property in original as primary evidence was produced during the testimony of PW-1 and opened in the Court. The samples Mark-A1 and Mark-A2, were found to be bearing the seal of FSL KG DELHI, whereas Parcel Mark-A was found bearing the seals of OP and AS. The observation of the Court at the time of opening the case property during the testimony of PW-1 is relevant to establish that the seal of OP and AS remained intact throughout the proceedings till the time the samples were analyzed by the FSL and the remaining contraband in pullanda/ Parcel-A was opened in the Court.
DLSH010052542020 Page 57 of 63 SC 166/2020STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act
90. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of OP by PW-1 ASI Om Prakash and was further sealed at the Police Station by PW-8 SHO Inspector Abhijeet Kumar with the seal of AS was found intact by Ms. Kavita Goel, Asstt. Director (Chemistry) FSL on the two samples Mark-A1 and Mark-A2, which she analyzed in terms of report Ex. PW-10/A and the remaining pullanda/ parcel was found intact bearing the seals of OP and AS, when the same was produced before the Court and exhibited as Ex. P-1 on 22.10.2024.
91. Accordingly, the prosecution proved beyond reasonable doubt that non-compliance of section 52A NDPS Act does not affect its case against the accused, as the case property seized at the spot was produced as primary evidence before the Court with the seals intact and while the said case property remained in police custody, it was not tampered with.
92. Accordingly, it is held that the integrity of the case property was maintained from the time the case property was seized at the spot till the time the samples were analyzed at FSL and the pullanda Mark-A was produced before the Court.
Videography and Photography not done during the proceedings and CCTV footage not produced
93. It was submitted that, though, the spot, where the accused was allegedly apprehended was a public road where several public witnesses were DLSH010052542020 Page 58 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act available, but neither videography nor photography of the proceedings was conducted by the investigating agency.
94. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2019.
95. 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?
96. Though the videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
97. 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.
Delay in sending case property to FSL
98. The contention raised by Ld. Defense Counsel is that the case property was deposited in maalkhana on 10.02.2019, but after delay of about 21 DLSH010052542020 Page 59 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act days, the case property was sent to FSL on 01.03.2019, which is a clear contravention of standing order no. 1/88 dated 15.03.1988, as per which, the sample has to be dispatched to the FSL within 72 hours.
99. None of the witness examined has stated that seals were tampered while the exhibits were in his custody. At this stage, a case decided by Hon'ble Supreme Court of India titled as Hardip Singh Vs. State of Punjab, (2008) 8 SCC 557 is of relevance wherein it was observed that :-
"While dealing with the question of delay in sending the samples of opium to the FSL, it was opined by Hon'ble Supreme Court that it was of no consequence, for the fact of the recovery of the said sample from the possession of the appellant had been proven and established by cogent and reliable evidence and that apart, it had also come in evidence that till the date of parcels of samples were received by the Chemical Examiner, the seal put on that parcel was intact. Under these circumstances, the Court ruled that the said facts clearly proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant. The plea that there was 40 days delay was immaterial and would not dent the prosecution case."
100. In view of the aforesaid judgment, it has been established on record that there was no tampering with the aforesaid seals in the samples at any stage and the samples received by the analyst for chemical examination contained the same heroin/ smack which was recovered from the possession of the accused. The plea that there was delay in sending the samples to FSL was immaterial and would not dent the prosecution case.
Presumption
101. Established jurisprudence dictates that, once possession is DLSH010052542020 Page 60 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act 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 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.
XXXXX
16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The DLSH010052542020 Page 61 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery 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."
102. 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 DLSH010052542020 Page 62 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act possession of the contraband articles on account of the same satisfactorily.
103. 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 probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
104. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused 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 an intermediate quantity of heroin. According to the presumption under Section 54 of the NDPS Act, since the accused was found in possession of an intermediate quantity of heroin, he has committed an DLSH010052542020 Page 63 of 63 SC 166/2020 STATE Vs. ANKIT FIR No. 92/2019 (Seemapuri) U/s 21(b) NDPS Act offense punishable under Section 21(b) of the NDPS Act.
Conclusion
105. The prosecution proved beyond reasonable doubt that the accused was in possession of intermediate quantity of heroin/ smack, as 21 gms of heroin was recovered from the possession of accused Ankit. In view of the presumption under Section 35 and 54 NDPS Act, it is presumed that the accused had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug/ heroin without any authority or license to be in possession of the same.
Order
106. Accordingly, accused Ankit is convicted for the offence punishable under Section 21(b) of the NDPS Act.
107. Copy of the judgment be supplied to accused free of cost.
Digitally
Announced in the open Court GAJENDER signed by
on 29th August, 2025 SINGH
NAGAR
GAJENDER
SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi