Delhi District Court
State vs Geoffrey Boateng on 11 September, 2025
IN THE COURT OF SH. SATVIR SINGH LAMBA,
ASJ/SPECIAL JUDGE (NDPS), WEST DISTRICT,
TIS HAZARI COURTS, DELHI
IN THE MATTER OF:-
SC 593/2019
STATE Vs. GEOFFREY BOATENG
FIR no. 135/2019
PS Khyala
U/S 21/25 NDPS Act,
Section 14 Foreigners Act &
468/471 IPC
Date of institution of case : 15.10.2019
Date on which case reserved for
judgment : 11.09.2025
Date of judgment : 11.09.2025
JUDGMENT :
a) Date of offence : 21.04.2019 b) Offence complained of : 21/25 of NDPS Act & Section 14 Foreigners Act c) Name of complainant : ASI Charan Singh d) Name of accused, his parentage, : Geoffrey Boateng S/o Machu Boateng R/o Accra Ghana e) Plea of accused : Pleaded not guilty f) Final order : - Acquittal for the SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 1 of 26 offence u/s 21(c) NDPS Act & u/s 468/471 IPC. - Conviction for the offence u/s 14 of Foreigners Act. BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case are that on 21.04.2019 at about 08:35 AM at T-point, Keshopur Mandi road leading towards Khyala, near Ring Road, Delhi within the jurisdiction of PS Khyala, Delhi, accused Geoffrey was found in illegal and unlawful possession of 320 grams of Heroine. Further allegations against the accused is that at time of his arrest, he was found living in India without valid documents of stay and hence, he also contravened the provisions of section 14 of Foreigners Act, 1946 (in short Foreigners Act). It is also alleged that accused fraudulently and dishonestly forged a voter ID, driving licence and National ID and used the same dishonestly as genuine despite having knowledge that the same were forged.
2. The present FIR was lodged against the accused, whereupon SHO, PS Khyala/Investigation Officer (I.O.) conducted the investigation & after the completion of the investigative process, final charge sheet was filed against the accused before the court regarding the alleged commission of the SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 2 of 26 offence U/s 21/25 of NDPS Act, 14 of Foreigners Act and section 468/471 of IPC.
3. Thereafter, the cognizance of the offences was taken against the accused, whereupon the provisions of Section 207 Cr. P.C. were also complied.
4. After hearing the prosecution as well as the defence, charge U/s 21 (c) of NDPS Act, u/s 14 Foreigners Act and 468/471 IPC was framed against the accused on 31.03.2022, to which the accused pleaded "Not Guilty" and thus claimed trial.
5. During the course of the trial, the prosecution examined 13 witnesses. SI Charan Singh is the star witness of the prosecution for the alleged recovery and the complainant in the present case.
6. SI Charan Singh is examined as PW12 and has deposed that on 21.04.2019 he was posted at Narcotics Squad, District West as ASI. PW12 further deposed that on that day, at about 07:00 AM, one secret informer came in their office and informed him that one African fellow namely Geoffrey, who used to supply Heroin would come on the Khyala road between 08:00-09:00 AM on a scooty no. DL-9SBJ-4469 to supply Heroin to someone. PW12 further deposed that thereafter, at about 07:20 AM, he produced SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 3 of 26 the secret informer before Inspector Sudesh Ranga, who after inquiry, telephonically informed ACP Sandeep Gupta, about the same & obtained directions for raid and further necessary action. PW12 further deposed that Inspector Sudesh Ranga accordingly directed him to take further necessary action. PW12 further deposed that at about 07:35 AM, he made an entry vide DD No.2 in compliance of Section 42 NDPS Act and produced a copy of same before Inspector Sudesh Ranga. PW12 further deposed that thereafter, he constituted a raiding party consisting of HC Sanjay, Ct. Abhay, Ct. Suresh & the secret informer and collected IO kit, field testing kit, electronic weighing machine etc. from the office. Thereafter, he made departure entry vide DD No. 3 and they left the office at about 07:50 AM in a private vehicle no. HR-15D-1485 which belongs to and was being driven by HC. PW12 further deposed that they reached at Keshavpur Mandi, T- point, Khyala at about 08:10 AM through Najafgarh road, Tilak Nagar, Ganesh Das Khatri Marg and Outer Ring road. PW12 further deposed that the abovesaid vehicle was parked at some distance from there and he again briefed the member of the raiding party. PW12 further deposed that he had also requested 5- 7 public persons to join the raiding party by telling them the facts of the secret information but none came forward. PW12 further deposed that then he deployed HC Sanjay and Ct. Abhay towards SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 4 of 26 Keshavpur Depot. PW12 alongwith Ct. Suresh and secret informer had taken their position on the other side of the road towards Keshavpur Mandi, by hiding themselves behind the vehicles and started waiting for the accused to come. PW12 further deposed that at about 08:25 AM, one African came on a scooty no. DL-9SBJ-4469 from Janakpuri side, stopped his scooty on the turning leading towards Khyala road and started waiting for someone. PW12 further deposed that the secret informer after seeing that person stated that he was the same African fellow and thereafter left from the spot. PW12 further deposed that after 5-7 minutes that African fellow started moving from there and they gave pre-determined signal to the members of the raiding party. PW12 further deposed that they cardoned the said person and on interrogation his name revealed as Geoffrey Boateng S/o Macho Boateng R/o Ghana. PW12 further deposed that he introduced himself and other members of the raiding party to the accused and informed him that he is having an information that he had come there to supply Heroin to someone and for that purpose his search is required to be taken. PW12 further deposed that he had informed accused that his personal search can be conducted in the presence of Gazetted officer or the Magistrate and also explained him the meaning of Gazetted officer or Magistrate. PW12 also informed him all his rights SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 5 of 26 including his right to conduct the personal search of the police party and vehicle prior to his personal search. PW12 explained all these things to accused in English language and accused stated that he required some Gazetted Officer at the spot. PW12 further deposed that thereafter, he prepared notice u/s 50 of NDPS Act and the original of the same was given to the accused, the carbon copy of the same is Ex.PW11/DX1 bearing his signature at point X. PW12 further deposed that thereafter he made a call to ACP Sandeep Gupta and requested him to reach at the spot. PW12 further deposed that at about 09:25 AM, he came at the spot and in the meantime, some public persons also gathered at the spot. PW12 further deposed that they were again requested to join the proceedings but none came forward. PW12 further deposed that ACP introduced himself before the accused and directed him to conduct the search of the accused. PW12 further deposed that he conducted the search of accused and from his right pocket of the lower, one polythene was recovered and same was found containing some substance. PW12 further deposed that he checked that substance on field testing kit and it came to be Heroin. PW12 further deposed that he weighed that substance and it came to be 320 gm of Heroin. Thereafter, PW12 had drawn two samples of 5 gm each and kept the same in small polythene. Thereafter, PW12 kept the small polythene in a cloth SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 6 of 26 parcel and gave marking as Mark A and B. PW12 further deposed that the remaining Heroin was kept in the same polythene and was kept in a separate cloth parcel and was given Mark C. PW12 further deposed that he affixed his seal of CS on all the three pullandas and prepared FSL form at the spot and prepared the seizure memo of the case property as Ex.PW11/A. PW12 further deposed that he also inquired the accused about his passport and other documents, but accused had not given any satisfactory reply. PW12 further deposed that his ACP left the spot by giving necessary instruction to him. PW12 further deposed that he handed over the seal to Ct. Suresh, prepared Tehrir as Ex.PW12/A and handed over the same to Ct. Abhay with the direction to hand over the same to the DO for registration of the FIR. PW12 further deposed that he also gave three sealed parcels, carbon copy of seizure memo and FSL form to Ct. Abhay with the direction to hand over the same to the SHO. PW12 further deposed that later on ASI Suresh Pal/IO came at the spot and he produced the accused & the documents before the him. PW12 further deposed that he also produced the aforesaid scooty before IO/ASI Suresh, who also prepared site plan at his instance as Ex.PW12/B. PW12 further deposed that IO also prepared seizure memo of the scooty as Ex.PW12/C and thereafter, he left from the spot. PW12 further deposed that on SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 7 of 26 21.04.2019, he prepared report u/s 57 NDPS Act as Ex.PW4/P2. The DD No. 2 and 3 as Ex.PW4/P1 and Ex.PW12/D respectively. PW12 has correctly identified the accused during his testimony in the court.
7. Duty Officer ASI Mukesh is examined as PW1 and has deposed that on 21.04.2019 at about 12:30 PM, Ct.Abhay handed over him rukka and case property sent by ASI Charan Singh. PW1 further deposed that accordingly, he registered the present FIR as Ex.P1/PW1. His endorsement on rukka is Ex. P2/PW1 and certificate u/s 65 of Indian Evidence Act is Ex. P3/PW1. PW1 further deposed that the case property was produced before the SHO by Ct. Abhay in his presence and IO made inquiry.
8. Mr. Eric Amoako Missah. Consular & Welfare Officer, High Commission of Ghana is examined as PW2 and deposed that he is working as a Consular and Welfare officer at High Commission of Ghana since 2019. PW2 has deposed on behalf of High Commission as Mr. Aaron Nuamah Sintim had returned back to Accra, Ghana. PW2 further deposed that he had worked with Mr. Aaron Nuamah Sintim and seen him writing & signing the documents. PW2 has deposed that the letter dt. 04.06.2019 Ex. PW2/P1 was written by Mr. Aaron Nuamah Sintim in response to letter of Narcotic Squad, Delhi Police. PW2 further deposed that they verified their record and could not trace the SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 8 of 26 details of the passport and Visa of Geoffrey Boateng and unable to identify the identity of accused. PW2 further deposed that they requested further information from Delhi Police like other IDs for verification. PW2 further deposed that at the High Commission a letter is received from Narcotic Squad, Delhi Police i.e. Ex.PW2/P2 alongwith a copy of one National ID card i.e. Ex. PW2/P3, copy of Driving License i.e. Ex. PW2/P4 and Voter Card i.e. Ex. PW2/P5. PW2 further deposed that these documents were verified from their record and were found fake as they were not issued by the Ghana Government. PW2 further deposed that the accused was not a citizen of Ghana. PW2 had proved the reply prepared by MR. Aaron Nuamah Sintim as Ex. PW2/P6.
9. Inspector Hemant Kumar is examined as PW3 and has deposed that on 21.04. 2019, he was posted as SHO PS Khyala, Delhi and on that day, at about 12.30 pm, Ct. Abhay came to his office and produced three sealed pullandas marked as A, B and C sealed with the seal of CS alongwith one FSL forms and carbon copy of one seizure memo. PW3 further deposed that he asked Duty Officer to register an FIR and put the endorsement on the seizure memo, FIR, on FSL forms and pulandas. PW3 further deposed that he also put his seal of HK on all the pullandas and FSL form. PW3 further deposed that thereafter, he called MHC(M) HC Randheer alongwith Register no. 19 in his office SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 9 of 26 and handed over all the pullandas, FSL form and seizure memo to deposit the same in the Mallkhana. PW3 further deposed that he made entry in this regard in Register no. 19 and signed the same. PW3 further deposed that he also made DD No. 28-A as Ex.PW3/P1. PW3 further deposed that he made entry in DD register of police station, but due to technical reason the entry was made in the name of DO ASI Mukesh Kumar, so he made correction vide DD No. 40 A as Ex.PW3/P2. PW3 further deposed that his statement was recorded by the IO ASI Suresh on 22.04.2019. PW3 further submitted that the pullandas mark A & B each were containing 5 grams of heroine and pulanda C was containing 310 grams of heroine. PW3 has also proved the entry at S. No. 2055 in Register no. 19 as Ex. PW3/P3.
10. ACP Sudesh Ranga is examined as PW4 and has deposed that on 21.04.2015, he was posted as Inspector at Narcotics Squad West District. PW4 further deposed that on that date at about 07:30 secret informer informed him that one person namely Geoffrey, who used to supply Heroin, would come between 08:00 AM to 09:00 AM near Keshavpur, Sabji Mandi, T- point on a soooty bearing no DC-95BG-4469 make Honda and would supply the Heroine to someone & can be caught, if raid is conducted. PW4 further deposed that at about 07.30 am, he telephonically informed to the ACP Sandeep Gupta about the said information on his official mobile no. 8750871193 from his SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 10 of 26 mobile phone 9999663307. PW4 further deposed that ACP Sandeep Gupta instructed him to take appropriate action as per law. PW4 further deposed that at 07.35 AM ASI Charan Singh recorded DD No. 2 as Ex. PW4/P1 in this regard and handed over the copy of the same to him in compliance of 42 of NDPS Act and he forwarded the same to ACP. PW4 further deposed that thereafter, ASI Charan Singh constituted a raiding team and they departed from the office in civil dress at about 07.50 am along with IO bag, field testing kit, Electronic weighing machine in Maruti Swift Car bearing No. HR-15D-1485 belonged to HC Sanjay vide DD No. 3. PW4 further deposed that after registration of the present case the investigation of the present case was marked to ASI Suresh Pal, who produced the accused Geoffrey Boateng before him in his office after arrest. PW4 further deposed that ASI Charan Singh informed him about the recovery of 320 gm of Heroin recovered from accused Geoffrey Boateng in writing u/s 57 of NDPS Act as Ex. PW4/P2 and he forwarded the said written information to ACP Operation Cell, West District. PW4 further deposed that ASI Suresh Pal also informed about the arrest of the accused Geoffrey Boateng in writing u/s 57 of NDPS Act as Ex.PW4/P3.
11. HC Yudhvir Singh is examined as PW5 and deposed that on 21.04.20219 he received intimation u/s 57 of NDPS Act regrading arrest of accused and seizure of case property, which SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 11 of 26 was duly signed by ASI Suresh Pal & ASI Charan Singh and duly forwarded by ACP vide entry 592 as Ex. PW5/A and 591 as Ex. PW5/B, both dated 21.04.2019.
12. SI Vijender Singh is examined as PW6 and has deposed that he had been authorised by Addl. Dy Director, IB (MHA), Government of India, New Delhi to testify the letter no. 4/CFB/2019 (6) 3555 dated 19.06.2019 vide authorisation Ex.PW6/A. PW6 further deposed that as per the contents of the abovesaid letter, the arrival of the accused from Ghana has been traced on Passport no. G1695316. However, no departure was traced in the said passport. PW6 has proved the details of arrival & VISA particulars and also proved the abovesaid letter as Ex. PW6/B and certificate as Ex. PW6/C. PW6 has also proved a letter dated 27.03.2024 signed by Addl. Dy. Director, IB having reference no. 4/CFB/2024 (14-66)-2477 dated 27.03.2024 as Ex. PW6/D.
13. Sh. Raj Kumar, Record Keeper, Zonal Office Transport Department, Dwarka, is examined as PW7 and has proved the original file of Scooty no. DL-9SBJ-4469 registered in the name of Maujij Hussain S/o Nazimullah Khan R/o F-28, Raghubir Nagar, New Delhi as Ex. PW7/A (OSR).
14. Dr. Kavita Goyal, Assistant Director (Chemistry), FSL SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 12 of 26 Rohini is examined as PW8 and has deposed that on 22.04.2019, one sealed cloth parcel in connection with the present case was received in their office and marked to her for examination. PW8 further deposed that she examined the same and after the examination, she gave her detailed report as Ex. PW8/A.
15. Ajit Singh, Alternate Nodal Officer, Vodaphone Idea Ltd., is examined as PW9 and has deposed that he provided the information to the IO in reply to the notice u/s 91 Cr. P.C. Ex. PW9/A. PW9 has proved the CAF of the phone no. 8929940681 in the name of Suraj as Ex. PW9/B, Certificate u/s 65 B of the Indian Evidence Act of the same as Ex. PW9/C, CDR of the said number dated 21.04.2019 as Ex. PW9/D, Certificate u/s 65 B of the Indian Evidence Act of the same as Ex. PW9/X and the Cell ID Chart of the said mobile as Ex. PW9/E.
16. Suraj Kumar S/o Rakesh Kumar is examined as PW10 and has deposed that he is residing at the house of his aunt at Building no. 52, Near Munirka, Bersaray, Delhi. PW10 further deposed that on 12.06.2019, IO inquired from him about mobile no. 8929940681, however he informed the IO that he do not know who got issued the said sim card of the said mobile number in his name.
17. Retired ACP Sandeep Gupta is examined as PW11 and has SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 13 of 26 deposed that on 21.04.2019, at about 07:30 AM, he received a call from Inspector Sudesh Ranga, who informed him about the secret information that one African Fellow would come near Keshopur Mandi T point Road, leading towards Khyala on Scooty no. DL-9S BJ 4469 to supply Heroin to someone at about 08:00 to 09:00 AM and he can be arrested, if raid is conducted. PW11 further deposed that he directed Inspector Sudesh Ranga to constitute a raiding party and to take further necessary action. PW11 further deposed that on 21.04.2019, he received DD no. 2 duly forwarded by Inspector Narcotics. PW11 further deposed that on the same day at about 09:35 AM he reached at the spot, where ASI Charan Singh and other staff met him. PW11 further deposed that accused was also in their custody and thereafter ASI Charan Singh apprised him about a notice u/s 50 of NDPS Act given to the accused and search of the accused was conducted in his presence. PW11 further deposed that from the right side pocket of the tracksuit pant of the accused, one white colour polythene containing light brown substance was recovered. PW11 further deposed that the said substance was checked on the field testing kit & it came to be Heroin and ASI Charan Singh weighed the Heroin and it came to be 320 grams. PW11 further deposed that thereafter, IO had drawn two samples of 5 gm each, kept the same in two separate polythene and thereafter kept in two separate cloth parcel and were given Mark A and B. PW11 further deposed that the remaining Heroin was kept in the same SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 14 of 26 polythene and then it was kept in a separate cloth parcel and was given Mark C. PW11 further deposed that IO affixed his seal of CS on all the three parcels, prepared FSL form and seized the case property vide memo Ex.PW11/A. PW11 further deposed that thereafter, he left from the spot. PW11 had identified his signatures on DD no. 2 Ex. PW4/P1 and two reports u/s 57 of NDPS Act as Ex. PW4/P2 & Ex. PW4/P3.
18. 2nd IO ASI Suresh Pal is examined as PW13 and has deposed on the lines of PW12. In addition, PW13 deposed that he seized the mobile phone and IDS of the accused i.e. National ID, DL and Voter Card through separate memo Ex. PW13/A and Ex. PW13/B. PW13 further deposed that he arrested the accused vide memo Ex. PW13/C, taken personal search of the accused vide memo Ex. PW13/D and recorded his disclosure statement as Ex. PW13/E. PW13 further deposed that he searched for the co- accused, but in vain. PW13 further deposed that he prepared report u/s 57 of NDPS Act as Ex. PW4/P3, got deposited the case property in FSL through Ct. Harish & gave information about the arrest of the accused at Ghana Embassy and also sent the ID of the accused to Ghana Embassy. PW13 further deposed that Ghana Embassy communicating in writing that the ID of the accused was fake.
19. It is pertinent to mention here that during the pendency of SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 15 of 26 the present case, accused had admitted the genuineness of statement of HC Sanjay, Ct. Abhay, Ct. Suresh and Ct. Harish u/s 161 Cr. P.C. Accordingly, abovesaid PWs were dropped.
20. After conclusion of prosecution evidence (PE), statements of accused u/s 313 Cr.P.C., was recorded on 08.01.2025, in which he denied the allegations against him as false and incorrect. Accused explained that he was at home at the time of his arrest and later on he was falsely implicated in the present case. Accused further explained that nothing incriminating was recovered from his possession.
21. Final arguments have been heard from both sides.
22. The main submissions of Ld. Chief PP for State were to the effect that on the basis of entire material on record, recovery of contraband i.e., Cocaine and accused also not bring on record any valid visa to stay in India, therefore, accused may be convicted u/s 14 Foreigners Act as well as under section 21 (c) of NDPS Act and 468/471 IPC.
23. Ld. counsel for accused argued that prosecution has miserably failed to prove its case. It is further argued that samples were not drawn in the presence of Ld. Magistrate nor SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 16 of 26 correctness of contraband seized was certified by the Ld. Magistrate u/s 52 A NDPS Act and samples drawn by IO were sent to FSL, which are not primary evidence.
24. In Mangilal v. The State of Madhya Pradesh, 2023 INSC 634, decided by Hon'ble Supreme Court of India on 12.07.2023, it has been held as under:-
" 5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non- compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.
25. In Union Of India vs Mohanlal & Anr on 28 January, 2016, Hon'ble Supreme Court of India while emphasis upon section 52A of NDPS Act held as under:
"20. To sum up we direct as under:
No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 17 of 26 Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading 'seizure and sampling'. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order."
26. In Bothilal v. The Intelligence Officer Narcotics Control Bureau, Criminal Appeal no.451 of 2011, decided by Hon'ble Supreme Court of India on 26.04.2023, it has been observed/held as under:-
"15. Admittedly, PW-2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution's case as this action by the PW-2, was contrary to Section 52-A of NDPS Act.
16. In paragraphs 15 to 17 of the Mohanlal's case, it was held thus:
"15. It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory,
(b) certifying photographs of such drugs or substances SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 18 of 26 taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in- charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not,takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
(emphasis added) Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that the substance recovered was contraband."
27. In Simranjeet Singh v. State of Punjab, Criminal appeal No. 1443 of 2023,decided on 09.05.2023 Hon'ble Supreme Court SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 19 of 26 has taken the similar view in respect of non-compliance of Section 52A of NDPS Act on 09.05.2023 and it is held as under
in para no. 7, 9 and 10:-
7.We have perused the evidence of PW-7 Hardeep Singh in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8........
9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence."
28. In "Yusuf @ Asif v. State" 2023 SCC Online SC 1328 dated 13.10.2023 Hon'ble Supreme Court, while acquitting the accused has held as under:
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 subsection (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 SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 20 of 26 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 subsections (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.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
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.
SC 593/2019STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 21 of 26
29. Therefore, in view of the abovesaid law laid down by Hon'ble Apex Court, the samples have to be drawn in presence of Ld Magistrate, the inventory of the seized contraband has to be duly certified by Magistrate, but in the present matter the IO has drawn the samples of the alleged contraband at the spot itself and same is in violation of dictum of above said judgments, the State has failed to lead the primary evidence w.r.t. the samples, it is violation of section 52A NDPS Act and on this ground only the accused is entitled to acquittal but it is pertinent to discuss other aspect of the arguments addressed by the parties.
30. Therefore, it has been held by Hon'ble Delhi High Court as well as by Hon'ble Apex Court that taking of representative samples without following the due process is not permissible and the admitted procedure adopted by the IO in the present for drawing the representative sampling is not in terms of the abovesaid dictums of law.
31. In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, it has been observed herein as under:-
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 22 of 26 convicted."
32. In ordinary circumstances, the above said anomalies when viewed in isolation, would appear to be inconsequential or insignificant. However, when viewed as a whole, it raises a question upon the credibility of the prosecution witnesses. The doubt becomes even more graver when considered in light of the fact that despite availability, no public witness has been joined in the case at hand and if, any independent witness would have joined, the same would have corroborated the story of the prosecution that accused was apprehended as alleged in the present case and was found in possession of contraband at the date, time and place as claimed by investigating raiding police party. The deposition of abovesaid PWs is suffering from major contradictions qua the relevant aspects of investigation and proceedings took place at the spot. It is a settled proposition of law that a case resting solely and exclusively upon testimony of police witnesses needs a strict judicial scrutiny. Further, harsher the punishment stricter should be judicial scrutiny. Reliance is placed upon the judgment of the Hon'ble Apex Court in the matter of Krishan Chand Vs State of HP: (2018) 1 SCC 222.
33. In my considered opinion, the lacuna occurred in drawing of samples in violation of section 52(A) NDPS Act, a reasonable shadow of doubt is cast upon the prosecution version. Hence, SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 23 of 26 accused is acquitted for the offences punishable under section 21
(c) of NDPS Act.
Section 466/468/471 IPC as well as Section 14 Foreigners Act
34. Another allegation against the accused are that he was found in possession of forged voter ID, Driving Licence and National ID and got his voter ID, Driving Licence and National ID forged with intention to cheat the Government of India and fraudulently and dishonestly used the same as genuine, which he knew or has reason to believe that same is forged. Ld. Counsel contends that there is nothing on record, which provides as to what content of the abovesaid was found forged by the accused and the abovesaid documents of the accused were never sent to forensic lab at any point of time. Ld. Counsel further contends that the accused arrived in India on the basis of visa and arrival details in terms of the documents i.e. Ex. PW6/B and Ex. PW6/C and same are found genuine and duly proved in the testimony of PW6 namely SI Bijender Singh.
35. In order to constitute offence of forgery, the first essential is that accused should have made a false document with dishonest and fraudulent intention to commit fraud. However, during the investigation as well as during the trial, no evidence has been brought on record that the accused himself has forged SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 24 of 26 the abovesaid documents or has used the alleged forged document as genuine at any point of time in any manner. Hence, in the present case, the prosecution failed to establish on record that the documents in question are forged by the accused or are used by the accused as genuine with dishonest and fraudulent intention.
36. Another allegations against the accused is that he being a foreign national was not having a valid visa for staying in India on the date of his apprehension. As far as the aspect of accused being foreign national, there is no dispute on the same. Moreso, there is no dispute on his arrival in India on valid documents i.e. Ex. PW6/A, Ex. PW6/B and Ex. PW6/C duly proved by PW6 SI Narender Singh, which proves his identity on the said document.
37. Meaning thereby, the abovesaid documents are in the name of the accused and no forgery is proved by the prosecution in the making of the abovesaid document. It is not disputed that the accused arrived in India on valid documents. The accused Geoffrey Boateng is not a citizen of India and once it is proved and admitted by accused that he is Foreign National and came to India in 2018, then the burden shifts upon accused as per Section 106 Indian Evidence Act to place on record the document which authorizes him to remain in India validly.
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38. It is not the case of the defence that accused got the visa after his arrival in India for any further duration at any point of time. The accused was arrested in present case on 21.04.2019. Meaning thereby, he came to India at any point of time and same is within his knowledge. So, the onus was upon the accused to prove the fact of coming to India on valid documents and of his continuity of remaining in India with valid documents. However, the accused has failed to discharge the burden of onus as per Section 106 Indian Evidence Act. Hence, the accused was staying in India without any valid document/visa in the year 2018. He remained silent in this regard.
39. In light of the abovesaid findings, observations and reasoning, I am of the considered opinion that the prosecution has been able to prove its case beyond reasonable doubt against the accused for the offence u/s 14 of Foreigner Act. The accused is convicted for the offence under section 14 of Foreigners Act. However, accused is acquitted for the offences punishable under section 21(c) of NDPS Act and sections 468/471 of IPC.
Announced in the Open Court today i.e. 11.09.2025 (SATVIR SINGH LAMBA) ASJ/ SPECIAL JUDGE (NDPS), WEST DISTRICT, DELHI SC 593/2019 STATE Vs. GEOFFREY BOATENG FIR no. 135/2019 PS Khyala Page 26 of 26