Delhi District Court
State vs Rohit on 19 April, 2025
DLSH010006842015 Page 1 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC No.155/16
State Vs. Rohit
FIR No.175/13
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
In the matter of :-
State
(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Rohit
S/o. Sh. Mahander
R/o. 28/44A, Kasturba Nagar,
Delhi
....accused
(Sh. Mukesh Kumar, Advocate)
Date of institution : 06.06.2015
Date when judgment reserved : 19.4.2025
Date of Judgment : 19.4.2025
Final decision : Accused acquitted.
::JUDGMENT::
1. Accused Rohit is before the Court facing charge under Sections 482 IPC and 8(c)/20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that 1.226 Kg Charas / Hashish (in a dark gray backpack / Pitthu bag having 'Sports Antler' badge over it) was recovered from the possession of CCL 'S @ S' (complete name withheld) on 28.04.2013 at about 06.10 a.m., at Karkari Road, 60 Feet Road, in front of HDFC Bank, Vishwas Nagar, Shahdara, Delhi, while accused Rohit was pillion rider on motorcycle, bearing fake number plate of DL3S-BC-9690, being driven by the DLSH010006842015 Page 2 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act aforesaid CCL. However, accused Rohit fled away from the spot and was apprehended later on.
2. In view of alleged recovery of 1.226 Kg Charas / Hashish from the possession of CCL and accused Rohit, FIR No.175/13 was lodged at PS Farsh Bazaar on 28.04.2013. During the course of investigation, accused Rohit was arrested on 29.05.2013. After completion of investigation, charge-sheet was filed more than two years later on 06.06.2015. Charge was framed on 27.04.2016 for offence u/s.482 IPC and u/s 8(c)/20/29 NDPS Act, which reads as under :
"That on 28.04.2013 at about 06.10 a.m., at Karkari Road, 60 Feet Road, in front of HDFC Bank, Vishwas Nagar Shahdara, Delhi, within the jurisdiction of PS Farsh Bazar, Delhi, you alongwith your co-accused Sajan @ Sunny (JCL) in furtherance of your criminal conspiracy, were going on a motorcycle by displaying the number plate of fake number DL3SBC 9690 while its actual registration no. was DL3SBC 9756, carrying contraband substance i.e. Hashish, weighing 1.226 kgs without any permit or license and thereby you committed offences punishable u/s 482 IPC and 8(c)/20/29 NDPS Act and within my cognizance."
3. To prove the aforesaid charge, the prosecution examined 12 witnesses.
The details of the said witnesses along with the documents that they exhibited during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description
exhibited
PW1 WSI Veera Sharma Ex. PW1/A Copy of FIR
(Duty Officer)
Ex. PW1/B Endorsement on rukka
PW2 WHC Anita (Police Ex. PW2/A PCR Form
Control Room)
PW3 HC Tejpal Ex. PW3/A Arrest Memo
(apprehended CCL at
Ex. PW3/B Personal search memo
the spot) (prime
witness)
PW4 SI Jaibir Singh
(IO filed charge-sheet)
PW5 Manmohan Ex. PW5/A Copy of Form - 20
(Record Keeper, RTO
Ex. PW5/B Copy of RC
Sheikh Sarai)
DLSH010006842015 Page 3 of 57
SC No.155/16
State Vs. Rohit
FIR No.175/13, PS Farsh Bazaar
U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
PW6 SI Vipin Kumar Ex. PW6/A Copy of notice u/s.50 NDPS Act
(First IO)
Ex. PW6/B Seizure memo of case property
Ex. PW6/C Seizure memo of fake number plate and
motorcycle make Apache
Ex. PW6/D Tehrir
Ex. PW6/E Original notice u/s.50 NDPS Act
Ex.PW6/Article-1 Sample of contraband
Ex.PW6/Article-2 Sample of contraband
Ex.PW6/Article-3 Contraband / case property
PW7 HC Irfan
(accompanied 1st IO SI
Vipin Kumar)
PW8 SI Uttam Chand Ex. PW8/A Copy of RC No.42/21/13
(witness of depositing
Ex. PW8/B Acknowledgment of FSL
case property at FSL)
PW9 SI Arvind (2nd IO) Ex. PW9/A Site plan
Ex. PW9/B Arrest memo
Ex. PW9/C Personal search memo
Ex. PW9/D Disclosure statement of accused
Mark 9A Copy of report u/s.57 NDPS Act
PW10 Insp.Prabhu Dayal
(SHO PS Farsh
Bazaar)
PW11 ASI Suneet Kumar Ex. PW11/A Notice u/s.57 NDPS Act
(Reader to ACP Vivek
Ex. PW11/1 DD entry regarding destruction of Diary
Vihar)
Register
PW12 ASI Sunil Dutt Ex. PW12/A Entry No.1159 in register no.19
(MHCM)
PW13 Amit Sharma (ACP)
Documents admitted on Ex. A1 FSL result dated 16.07.2013 prepared by Dr.
06.10.2017 Kanak Lata Verma
4. After examining the testimony of the witnesses mentioned in the table above, it is found that they gave evidence about the following facts for the prosecution: -
4.1. On 28.04.2013, PW3 HC Tejpal was on duty at Anti Snatching Picket on DLSH010006842015 Page 4 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 60 foota Bank, near HDFC Bank, Vishwas Nagar, Delhi, and at about 6.15 p.m., he saw accused Rohit coming on a motorcycle alongwith one another person, who was driving the motorcycle bearing no. DL3S-BC-9693. When he signalled them to stop by waiving his hand, the motorcycle was stopped, but accused Rohit managed to escape from the spot, whereas CCL (S @ S) (complete name withheld) was apprehended by PW3. In the meantime PW7 HC Irfan alongwith PW6 SI Vipin came at the spot and interrogated the CCL, who disclosed his name as S @ S. 4.2. The CCL was carrying a bag of dark gray colour on his shoulder, having a batch of 'Sports Antler'. The bag was opened by PW6 and from inside it, one black polythene was recovered containing two packets wrapped with tape and upon opening the said polythene, solid substance was found therein, which upon smelling seemed to be Charas. PW6 sent PW7 to PS to bring field testing kit and electronic weighing machine.
4.3. In the meanwhile, PW6 prepared notice u/s.50 NDPS Act alongwith carbon copy of the same and the CCL was explained about his right to be searched by gazetted officer or magistrate or to be taken to a gazetted officer or a magistrate for his search or to conduct the search of the members of the police party before his search is conducted. However, the CCL refused to avail his legal rights. The original notice u/s.50 NDPS Act is Ex. PW6/E and the carbon copy containing the refusal of CCL is Ex. PW6/A. 4.4. Thereafter, personal search of the CCL was conducted and no further contraband was recovered from his personal search. The contraband recovered from the bag carried by the CCL was tested with field testing kit and was found to be positive for Hashish.
4.5. The contraband was weighed and found to be 1.226 Kg, out of which two samples of 25 gms each were drawn and kept in two separate polythenes, DLSH010006842015 Page 5 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act marked as Mark A1 and A2. The remaining contraband / Hashish was kept back in the same polythene and kept in the Pitthu and converted into pulanda Mark A. The samples Mark A1 and A2 and remaining contraband in pulanda Mark A were sealed with the seal of VKY by PW6 SI Vipin Kumar. Seal thereafter was handed over to PW3 Ct. Tejpal. Seizure memo Ex. PW6/B in this regard was prepared. The aforesaid motorcycle was also seized vide memo Ex. PW6/C. 4.6. PW6 prepared Tehrir Ex. PW6/D and handed over the same to PW7 for the registration of FIR. PW6 also handed over to PW7 the three pullandas Mark A, A1 and A2 as well as FSL Form and copy of seizure memo to be handed over to SHO.
4.7. PW7 alongwith the aforesaid articles went to PS Farsh Bazaar, where he handed over the rukka to Duty Officer PW1 WSI Veera Sharma, who recorded FIR Ex. PW1/A and made endorsement on the rukka Ex. PW1/B regarding registration of FIR.
4.8. PW7 handed over the case property, copy of seizure memo and FSL Form to PW10 Insp. Prabhu Dayal SHO PS Farsh Bazaar, who found the three parcels sealed with the seal of VKY and he placed his seal of PDS on each of the parcels. He also mentioned the FIR number on the parcels as well as FSL Form and copy of seizure memo and handed over the case property to PW12 ASI Sunil Dutt (MHCM) for depositing the same in the Malkhana. 4.9. PW12 ASI Sunil Dutt MHCM upon receiving the case property and seizure memo, deposited the pullandas in the Malkhana vide entry in Register No.19 at sl. no.1159 Ex. PW12/A. 4.10. After registration of FIR, the investigation was marked to PW9 SI Arvind, who reached at the spot. PW7 also reached at the spot alongwith copy of FIR and original rukka which he handed over to PW9. At the spot, PW6 handed DLSH010006842015 Page 6 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act over the documents prepared by him as well as the seized motorcycle and the CCL to PW9, who prepared site plan Ex. PW9/A and apprehended the CCL vide memo Ex. PW3/A and conducted his personal search Ex. PW3/B, in which the original notice u/s.50 NDPS Act Ex. PW6/E was recovered. 4.11. On the basis of secret information, PW9 alongwith PW7 went to the house of accused Rohit at H.No.28/44A, Kasturba Nagar, Shahdara, Delhi, where he was apprehended from outside of his house and was arrested vide arrest memo Ex.PW9/B and his personal search memo was prepared vide memo Ex. PW9/C. His disclosure statement was also recorded vide memo Ex. PW9/D. 4.12. PW9 prepared report u/s.57 NDPS Act regarding arrest of accused Rohit, which was forwarded to ACP Vivek Vihar. The said report also bears the signatures of PW10 Insp. Prabhu Dayal, SHO Farsh Bazaar at point Y. The said report was received in office of ACP Vivek Vihar on 21.05.2013 and entered in diary register vide Diary No.2498. The original report is Ex.
PW11/A, however, the diary register was destroyed by the time, the same was summoned and order of destruction is Mark PW11/1, which was produced by PW11 ASI Sunit Kumar.
4.13. On 23.05.2013, on the directions of the SHO, PW12 ASI Sunil Dutt had handed over the sealed parcels to PW8 Ct. Uttam Chand vide RC No.42/21/13 Ex. PW8/A, who carried the same and deposited it with FSL vide acknowledgment Ex. PW8/B. 4.14. The said case property deposited with the FSL was analysed by Dr. Kanak Lata Verma from 05.06.2013 to 16.07.2013. As per the FSL Report Ex. A-1 (admitted on 06.10.2017), the three parcels Mark A, A1 and A2 were found sealed with the seal of VKY and PDS and the contents thereof upon physical, microscopic and chemical examination was found to be Charas / DLSH010006842015 Page 7 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act Hashish. As per the report, after the examination, the case property was sealed with the seal of KLV FSL DELHI.
4.15. The case property was produced during the deposition of PW6 and the three pullandas Mark A, A1 and A2 were found bearing the seal of YS and on the pullandas Mark A1 and A2, FSL number 2013/C-4254 was also mentioned with red ink. The parcels were opened and the case property Mark A2, A1 and A was identified by PW6 and exhibited as Exs. PW6/Article-1, PW6/Article-2 and PW6/Article-3 respectively.
4.16. PW5 Manmohan, Record Keeper, RTO, Sheikh Sarai Authority, produced the record of the seized motorcycle, as per which, the actual number of the motorcycle was DL3S-BC-9756 and the registered owner was Aarti r/o. 28/5, Vishwas Nagar, Kasturba Nagar, Delhi. He produced the copy of Form- 20, which is Ex. PW5/A and copy of RC which is Ex. PW5/B. 4.17. On 01.05.2015, the investigation of the case was marked to PW4 SI Jaibir Singh, who prepared the charge-sheet and filed it in the Court. 4.18. On 28.04.2013, at 6.14 a.m., a call was received in CPCR by PW2 WHC Anita that one snatcher had been apprehended at Karkari Road, 60 foota Road, Farsh Bazaar, Delhi, and PCR form in this regard is Ex. PW2/A.
5. After closing of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded, wherein he pleaded innocence and claimed that he has been falsely implicated in the present case due to his previous involvement and some enmity with the family members of CCL. His signatures were obtained on blank papers which were later on converted into various memos. He further stated that he was forcibly lifted from his house.
6. Accused opted not to lead evidence in defence and accordingly, DE was closed.
DLSH010006842015 Page 8 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act Arguments
7. I have heard the Ld. Additional Public Prosecutor Sh. Jitendra Sharma and the Ld. Counsel Sh. Mukesh Kumar for the accused and perused the record.
8. Arguments were heard on 19.04.2025 and were also recorded in the order-sheet of the even date.
9. During course of the arguments, Ld. Counsel for the accused has submitted as under :
9.1. That there is no compliance of Section 42 NDPS Act in the present case and that no authorisation was taken from the ACP before apprehending the CCL at the spot and further before the arrest of the present accused. 9.2. That the provisions of Section 50 NDPS Act have not been complied with as before the personal search of accused, no notice u/s.50 NDPS Act was given to the accused and his legal rights were never conveyed to him. 9.3. That notice u/s.50 NDPS Act given to the CCL has not been proved by the prosecution. That even otherwise, in the said notice, the word 'nearest' is not mentioned and as such there is failure to comply with notice u/s.50 NDPS Act.
9.4. That compliance of Section 50 NDPS Act was required in the facts of the present case, despite the fact that the contraband was recovered from the bag being carried by the CCL, in view of the judgment titled State of Rajasthan Vs Parmanand & Anr, (2014) 2 RCR (Criminal) 40, but the said compliance has not been done.
9.5. That the prosecution failed to prove the recovery from the CCL and further failed to establish that the present accused was accompanying the CCL, as alleged in the charge-sheet.
9.6. That further in view of Mohan Lal Vs. State of Rajasthan Crl. (2015) 6 SCC 222 and Yusuf @ Asif, 2023 INSC 912, as the recovered contraband DLSH010006842015 Page 9 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act was not subjected to proceedings u/s.52A NDPS Act, hence, the recovery do not stand proved beyond doubt and the accused is entitled to be acquitted. 9.7. That no videography of photography was conducted at the time of seizure of contraband from the CCL, nor any CCTV footage was recovered, which raises as regards the recovery made from the accused. 9.8. That no effort was made by the investigating agency to join any public witness, despite the availability of bank, commercial and residential area near the spot.
10. Per contra, Ld. Addl. Public Prosecutor submitted as under :
10.1. As this is a case of chance recovery, hence, compliance of section 42 NDPS Act is not required in the present case.
10.2. In the present case, the recovery was made from CCL, to whom the notice under section 50 NDPS Act was duly served. The present accused escaped from the spot, hence no notice u/s.50 NDPS Act could be served upon the present accused.
10.3. As far as the absence of the word 'nearest' in the notice u/s.50 is concerned, Hon'ble Apex Court in State of NCT of Delhi Vs. Mohd. Jabir, Crl. Appeal No.4921/2024 dated 02.12.2024 has categorically observed that the use of expression 'nearest' refers to the convenience and, therefore, the absence of the said word cannot be a ground for grant of bail.
10.4. That the compliance of Section 50 NDPS Act is not required, in cases where the recoveries made not from the person of suspect, but from the vehicle of the suspect or the bag he is carrying.
10.5. As far as compliance u/s 52A NDPS Act is concerned, the non- compliance thereof does not vitiate the trial in view of the judgment titled Bharat Ambale Vs. The State of Chhattisgarh, 2025 INSC 78.
DLSH010006842015 Page 10 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 10.6. The police officials made sufficient efforts to join public witness, however, despite their efforts, none of the public persons joined investigation. Hence, non-availability of the public persons do not vitiate the trial.
Legal Requirement to prove the Charges
11. Section 20 NDPS Act reads as under :
"20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,--
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),-- (A) and 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) and 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) and 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)
12. As far as contravention of the provision is concerned, Section 8 of NDPS Act completely prohibits the provision 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 DLSH010006842015 Page 11 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
(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."
(emphasis supplied)
13. As per the Section, possession of all narcotic drugs is prohibited by Section 8.
14. 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;
15. As per the definition, 'narcotic drug' includes cannabis (hemp).
Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
16. The term "cannabis (hemp)" is defined in Section 2(iii) of NDPS Act, as under :
"(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and DLSH010006842015 Page 12 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom"
(emphasis supplied)
17. "Cannabis (hemp)" besides other things also means Charas / Hashish i.e. , the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin. In the present case, the prosecution would be required to prove that the recovered substance was charas/hashish.
18. 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."
19. 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 'Charas / Hashish'. As per entry at serial no.23 in the said notification, the small quantity for Charas / Hashish is 100 gms and commercial quantity is 1 Kg.
20. In order to prove the charges u/s.20(b)(ii)(B) NDPS Act, the prosecution is required to prove the following facts :
(1) That the accused along with co accused CCL was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule or order made or condition of license granted thereunder.
(3) That the contraband was Charas/Hashish. DLSH010006842015 Page 13 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act (4) That the quantity of the contraband was intermediate (for Section 20(b)(ii)(B) i.e. more than 1000 gms).
21. 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.1 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.
22. State of Punjab vs. Balbir Singh 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions 1 In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002:
2. "In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."DLSH010006842015 Page 14 of 57 SC No.155/16
State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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 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 DLSH010006842015 Page 15 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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."
23. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure DLSH010006842015 Page 16 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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
24. 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
25. 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 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 DLSH010006842015 Page 17 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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)
26. 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.
27. The present case is a case of chance recovery, as no secret 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
28. 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 DLSH010006842015 Page 18 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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)
29. The legal position in respect to Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in case titled as State vs Baldev Singh 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 a 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)
30. In the case titled as State of Punjab vs. Balbir Singh (1994) 3 SCC 299, Hon'ble Apex Court had observed as under:-
DLSH010006842015 Page 19 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act "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)
31. 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 DLSH010006842015 Page 20 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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" 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 DLSH010006842015 Page 21 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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 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."
32. 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.
33. However, it is noted that as soon as the police official (PW3) came to know that the CCL was carrying Charas, upon checking the pitthu bag containing black and brown coloured solid substance, the further proceedings were conducted as per the provisions of NDPS Act, as IO PW6 SI Vipin Kumar DLSH010006842015 Page 22 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act upon reaching the spot gave notice u/s.50 NDPS Act to the CCL before his bodily search was conducted. Thus, after the apprehension of the CCL and chance recovery of contraband / Charas by PW3 and before bodily search of CCL was conducted by IO/PW6, mandatory notice u/s.50 NDPS Act was served upon CCL and only after his refusal to avail his legal rights, his bodily search was carried out. Though, the CCL is not before the Court, however, as the recovery made from the CCL forms the basis of the case against the present accused, hence, it needs to be determined by the Court whether the recovery made from the CCL was made legally as per the provisions of NDPS Act.
34. PW6 in his deposition categorically stated that he prepared notice u/s.50 NDPS Act and handed over the same to the CCL. He also testified that he apprised the CCL regarding his legal rights, as mentioned in the notice u/s.50 NDPS Act. Testimony of this witness on this aspect is as under:
"I prepared notice U/S 50 NDPS Act,vide carbon process. Contents of the notice Under 50 NDPS Act were read over and explained to the accused. Accused was also briefed regarding his legal rights to get his search in the presence of Gazetted Officer or Magistrate or they may be called at the spot for the said purpose. The meaning of Gazetted Officer and Magistrate was explained to him. The accused was also apprised that prior to his search, he can take the search of police party. The original notice was served upon the accused. The accused refused for his search in presence of GO or Magistrate. The refusal was written on the carbon copy of notice in his hand writing. At this stage, the carbon copy is placed on the file is shown to the witness and the witness states that the notice was prepared by him and the original was served upon the accused. The witness further states that the refusal was written by the accused in his hand writing from point A to A in the notice. Witness has also identified his signatures at point B. The notice is now Ex PW6/A. After that the accused was search and no other contraband was recovered."
35. It may be noted that there is no cross-examination of this witness as regards the notice given by him to the CCL and as regards the response of the CCL to the notice, which was recorded on the copy of the notice. The witness DLSH010006842015 Page 23 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act was not given any suggestion in his cross-examination to assail the notice u/s.50 NDPS Act.
36. As stated earlier, it is the case of the prosecution that the recovery was a chance recovery, wherein in the Pitthu bag being carried by the CCL, Charas like substance was found and only thereafter, information was given at the PS to depute an IO to conduct further proceedings under NDPS Act. Therefore, as per the prosecution case, the contents of the Pitthu bag were checked by PW3 before the IO/PW6 was deputed 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 Pitthu bag was checked by PW3. 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.
37. However, after the chance recovery, the bodily search of the CCL was duly carried out after giving him notice u/s.50 NDPS Act. Thus, as far as the bodily search of the CCL is concerned, the investigating agency duly complied with Section 50 NDPS Act.
38. It was one of the arguments of the Ld. Defence Counsel that in the notice under section 50 NDPS Act, the word "nearest" is not mentioned and as such there is failure to comply with section 50 NDPS Act.
39. Hon'ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd.
Jabir {Crl. Appeal No.4921/2024 dated 02.12.2024} in this regard observed as under:
"It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word "unnecessary DLSH010006842015 Page 24 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act delay" and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word 'any' does not satisfy the mandate of the 'nearest' Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding."
(emphasis supplied)
40. Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
41. The aforesaid deposition of PW6 is further supported by PW3 and PW7, as they testified that the bodily search of the CCL was conducted only after notice u/s.50 NDPS Act was served upon the CCL.
42. In view of the testimonies of above witnesses, namely, PW-3, PW6 and PW7, the prosecution has successfully proved on record that the CCL was properly served with the notice under Section 50 of the NDPS Act before his bodily search and there was no violation of the said mandatory provision.
43. It may be noted that from the bodily search of the CCL, no contraband was recovered. The contraband (Charas) was found in the Pitthu bag being carried by the CCL, while he was driving the motorcycle and the present accused was allegedly sitting as pillion rider. As regards recovery from bags, briefcase etc being carried by a suspect, 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.
DLSH010006842015 Page 25 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
44. In this regard, Hon'ble Apex Court in case titled as State of Himachal Pradesh and Ors. vs. Pawan Kumar and Ors. 2005 INSC 193 2, has observed as under:
"8. The dictionary meaning of the word "person" is as under :
Chambers's45. An individual; a living soul; a human Dictionary 46.
: being;
47. 48. b: the outward appearance, & c : bodily form; a
distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of.
Webster's 49. International Dictionary An individual human Third New: being; a human body as distinguished from an animal or thing; an individual having a specified kind of bodily appearance: the body of a human being as presented to public view normally with its appropriate coverings and clothings: a living individual unit a being possessing or forming the subject of personality.
Black's Law50. In general usage, a human being (i.e. natural Dictionary: person), though by statute term may include labour organizations, partnerships, associations, corporation. Law Lexicon
51. The expression 'person' is a noun according to : by P. grammar and it means a character represented as on the Ramanatha stage, a human being; a self-conscious personality."
Aiyar
9. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra 2 Three Judges Bench DLSH010006842015 Page 26 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."
(emphasis supplied)
52. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr.L.J 1384 four gunny bags were found in an auto rickshaw which the suspect was driving DLSH010006842015 Page 27 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act and there was no other person present. The argument based on non-compliance of Section 50, as explained in the case of Baldev Singh 3, was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused.
53. In Madan Lal v. State of H.P. MANU/SC/0599/2003 it was held that Section 50 would apply in the case of search of a person as contrasted to search of vehicles, premises or articles.
54. In Gurbax Singh v. State of Haryana 2001 Cr.L.J 1166, suspect got down from a train carrying a Katta (gunny bag) on his shoulder. It was held that Section 50 was not applicable.
55. In State of Punjab v. Makhan Singh MANU/SC/0181/2004, the suspect was apprehended while alighting from a bus with a tin box in his hand in which contraband was found. The High Court acquitted the accused on account of non- compliance of Section 50. Hon'ble Apex Court while holding that Section 50 will not apply, reversed the judgment of the High Court and the accused was convicted.
56. In V. Kanhaiya Lal v. State of M.P. (2000)10 SCC 380, one kg. of opium was found in a bag which was being carried by the suspect. Argument seeking acquittal on the ground of noncompliance of section 50 NDPS Act was rejected on the ground that it was not a case of search of the person of the accused.
57. In Birakishore Kar v. State of Orissa AIR 2000 SC 3626, suspect was found lying on a plastic bag in a train compartment. Argument that compliance of section 50 was mandatory was rejected on the ground that the accused was sitting on the plastic bag and it was not a case of the search of the person of the accused.
3 State of Punjab vs. Baldev Singh and Ors. (21.07.1999 - Constitution Bench) : MANU/SC/0981/1999 :
1999 INSC 282.DLSH010006842015 Page 28 of 57 SC No.155/16
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58. In Krishna Kanwar v. State of Rajasthan 2004:INSC:61 it was held that Section 50 applies where search has to be in relation to a person as contrasted to search of premises, vehicles, articles or bag.
59. In Sarjudas v. State of Gujarat 2000 Cr.L.J 509 suspect were riding a scooter on which a bag was hanging in which charas was found. Section 50 was held not applicable as it was not a case where the person of the accused was searched.
60. In Saikou Jabbi v. 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.
61. Ld. Counsel for the accused while submitting that in a case where the accused as well as the bag is searched, compliance of Section 50 is essential, relied upon judgment of the Hon'ble Apex Court in Parmanand (supra) and further relied upon two judgments referred to in the said judgment i.e. Dilip & Anr. Vs. State of MP, AIR 2007 SC 369 and Union of India Vs. Shah Alam, AIR 2010 SC 1785. The relevant paras i.e paras no.9 to 12 of the judgment in Parmanand (supra) are reproduced as under :
"9. In this case, the conviction is solely based on recovery of opium from the bag of Respondent No. 1-Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra MANU/SC/0662/1999 : (1999) 8 SCC 257, this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar MANU/SC/0272/2005 : (2005) 4 SCC 350, three-Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person"
occurring in Section 50 of the NDPS Act. The question is, therefore, whether DLSH010006842015 Page 29 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act Section 50 would be applicable to this case because opium was recovered only from the bag carried by Respondent No. 1-Parmanand.
10. In Dilip and Anr. v. State of Madhya Pradesh MANU/SC/8711/2006 :
(2007) 1 SCC 450, on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.
11. In Union of India v. Shah Alam MANU/SC/1065/2009 : (2009) 16 SCC 644, heroin was first recovered from the bags carried by the Respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the Respondents on that ground.
12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent No. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
(emphasis supplied)
62. However, in this regard, the Court would like to refer to a Full Bench decision of the Hon'ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019 INSC 1145. In the said case, the recovery was made from Qualis car 4, in which the accused persons were travelling and the question regarding the applicability of Section 50 NDPS Act, in case of such recovery came up for 4 Just like the recovery has been made from swift car in the present case.
DLSH010006842015 Page 30 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act consideration before the Hon'ble Apex Court. Hon'ble Apex Court while referring to the Constitution Bench Decision in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and while noting the decision in Dilip (supra) categorically overruled the law laid down in Dilip (supra), while holding that the law laid down in the said case is opposed to the law laid down by the Constitution Bench in Baldev (supra). Paras 16 to 19 of the judgment are reproduced as under :
"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."DLSH010006842015 Page 31 of 57 SC No.155/16
State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
63. In view of the law laid down in Baldev (supra) and Baljinder (supra) 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 the bag being carried by the accused and not from the person of the accused.
64. Based on the testimonies of witnesses PW3, PW6, and PW7, it has been established that the CCL was duly served with notice under Section 50 of the NDPS Act before his bodily search was conducted (during which no contraband was found), and there was no violation of this mandatory provision. Additionally, according to the observations in the referenced judgments, compliance with Section 50 is not required for recovery from the Pitthu bag carried by the CCL.
Discussion on the point of recovery of contraband
65. In the present case, the contraband was recovered from CCL and the allegations are that the accused was also sitting as pillion rider on the motorcycle with the CCL, but managed to escape when PW3 stopped the motorcycle and apprehended the CCL. Therefore, in order to prove the possession of the narcotic substance / Charas / Hashish from the accused, the prosecution is required to prove two facts : -
1. That Charas / Hashish was recovered from CCL and
2. That the present accused was accompanying the CCL as a pillion rider on the motorcycle, when the police stopped the motorcycle and apprehended the CCL.
66. Both these requirements are discussed herein, as under :
Recovery from the CCL
67. As per prosecution case, PW3 was on duty at Anti Snatching Picket at 60 Foota Road, near HDFC Bank, Vishwas Nagar, on 28.04.2013, when at around DLSH010006842015 Page 32 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 6.15 a.m., he saw two persons coming on a motorcycle from the side of Karkardooma Courts. When he signalled them to stop, the motorcycle was stopped but the pillion rider fled from the spot. The driver of the motorcycle was apprehended and found to be CCL, whereas the pillion rider, i.e. the present accused namely Rohit, was arrested subsequently on 19.05.2013. The CCL who was apprehended at the spot was found carrying a Pitthu bag and when PW3 checked the contents of the bag, he found that it contained Charas like substance, hence, he sent the information to the PS, which was recorded vide DD No.8A. PW6, to whom DD No.8A was marked alongwith PW7 Ct. Irfan reached at the spot, where PW3 was found present alongwith the CCL and motorcycle bearing no. DL3S-BC-9693. As stated earlier, PW6 gave notice u/s.50 NDPS Act to the CCL, but as the CCL declined to avail his legal right, hence his bodily search was conducted, in which no further contraband was recovered. The Charas like substance found in the Pitthu bag being carried by the CCL was weighed and found to 1.226 Kg from which two samples of 25 gms were drawn and marked as Mark A1 and A2. The remaining contraband alongwith Pitthu bag was converted into a pullanda Mark A and all the three pullandas were sealed by PW6 with the seal of VKY. Thereafter, the pullandas were seized vide seizure memo Ex. PW6/B and the motorcycle was seized vide memo Ex. PW6/C.
68. To prove the aforesaid recovery, the prosecution examined HC Tejpal as PW3, SI Vipin Kumar as PW6 and Ct. Irfan as PW7. PW3 in his examination- in-chief as regards the chance recovery made from the CCL, deposed as under :
"On 28.04.2013 | was posted at PS-Farsh Bazar as Ct. On that day, I was on duty in the morning at anti snatching picket duty at 60 foota road near HDFC Bank, Vishwas Nagar. At about 6.15 am two persons were coming on motorcycle from the side of Karkardooma Court. I signaled them to stop by waiving my hands. The motorcycle was stopped but the pillion rider fled from the spot. The driver of the motorcycle was apprehended by me. In the meantime, Ct. Irfan along with SI Vipin kumar reached there. I handed over the apprehended person to Sl Vipin Kumar. ..... The number of DLSH010006842015 Page 33 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act the motorcycle was DL-3SBC-9693. SI Vipin Kumar verified the engine number and chasis number of the motorcycle from auto match and found that the number of the motorcycle was fake and original number was DL-3SBC-9756. The person was also carrying a bag on his shoulder (pithu bag). The bag was of dark gray colour, Sports Ankler batch was affixed. SI Vipin opened the bag and checked the same. From inside the bag, one black polythene was recovered. The polythene was checked and it was found containing two packets wrapped by tape. Both packets were opened after cutting the tape. One of the packet was having transparent polythene inside it and other was having solid shape substance. On smelling the same, it appear as 'charas'."
69. The said witness was not cross-examined as regards the chance recovery of the contraband or of the motorcycle with fake number plate.
70. The testimony of this witness is supported by PW7 Ct. Irfan, who provided similar statement. This witness was also not cross-examined.
71. Additionally, PW6 SI Vipin Kumar gave a consistent statement, especially concerning the alleged recovery from the CCL. This witness was also not cross-examined. Further, PW5 proved that the actual registration number of the recovered motorcycle was DL3S-BC-9756 and it was registered in the name of Aarti. Copy of RC of the motorcycle is Ex. PW5/B and copy of Form XX is Ex. PW5/A.
72. From the deposition of PW3, PW5, PW6 and PW7, which have remained completely unchallenged, it stands proved beyond reasonable doubt that 1.226 Kg of Hashish was recovered from the possession of the CCL on 28.04.2013 at about 6.10 a.m., when he was apprehended by PW3 in front of HDFC Bank, Karkari Road, 60 Feet Road, Vishwas Nagar, Shahdara, Delhi, on a motorcycle bearing fake number plate of DL3S-BC-9690, having actual registration no. DL3S-BC-9756.
Whether the accused was accompanying the CCL?
73. As per the prosecution case, only one witness i.e. PW3 HC Tejpal had seen the accused along with the CCL coming on the motorcycle and when he got the motorcycle stopped by waiving his hand, the accused, who was DLSH010006842015 Page 34 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act allegedly sitting as a pillion rider, fled from the spot. PW3 HC Tejpal is, therefore, star witness of the prosecution to prove that it was the accused and no one else, who was accompanying the CCL on 28.04.2013, when they were stopped by PW3 HC Tejpal near HDFC Bank, Vishwas Nagar, at 6.15 a.m. The relevant portion of the testimony of this witness as regards the apprehension of the CCL and escape of the accomplice being relevant is reproduced as under :
On 28.04.2013 | was posted at PS-Farsh Bazar as Ct. On that day, I was on duty in the morning at anti snatching picket duty at 60 foota road near HDFC Bank, Vishwas Nagar. At about 6.15 am two persons were coming on motorcycle from the side of Karkardooma Court. I signaled them to stop by waiving my hands. The motorcycle was stopped but the pillion rider fled from the spot. The driver of the motorcycle was apprehended by me. In the meantime, Ct. Irfan along with SI Vipin kumar reached there. I handed over the apprehended person to Sl Vipin Kumar."
74. As stated earlier, as per the aforesaid deposition, it is clear that the accomplice who was accompanying the CCL fled from the spot before the arrival of PW7 Ct. Irfan and PW6 SI Vipin Kumar. The aforesaid deposition is further supported by the contents of the rukka Ex. PW6/D and the contents of FIR Ex. PW1/A, in which it is stated that when PW6 SI Vipin Kumar reached at the spot, by that time, the accomplice of the CCL had already fled from the spot. PW65 and PW76 also categorically deposed on the same lines.
75. Therefore, the only witness, who could have identified the present accused as the same accomplice of the CCL, who had managed to flee from the spot on 28.04.2013, is PW3 HC Tejpal. However, PW3 in his entire deposition 5 "On 28.04.2013, I was posted at PS Farsh Bazar as SI. On that day, I was on emergency duty and my duty hours were between 8.00 PM to 8.00 AM. On receiving DD No.8A. I alongwith Ct Irfan reached at the spot that is Karkari Road, Opposite HDFC Bank, Vishwas Nagar, Shahdara where I met with Ct Tej Pal. He apprised me regarding facts of the happening. He stated to me that he was on anti snatching picket checking. He further stated that the accused was stopped at the picket on suspicion. He was on Appache motor cycle and his pillion rider fled away from the spot. He handed over the accused to me" 6 "In the intervening night of 27/28.04.13 l was posted at PS-Farsh Bazar as Ct. On that day I was on emergency duty and my duty hours were from 8.00 pm to 8.00 am. At about 6.30 am on 28.04.2013 on receiving DD no.8A | alongwith SI Vipin Kumar reached at the spot i.e. karkari road opposite HDFC Bank, 60 foota road, Vishwas Nagar, Shahdara where we met with Ct. Tejpal who produced the accused present in the court today alongwith one Apache motorcycle bearing no. DL3SB-C-9693. Ct. Tejpal apprised us regarding the facts of the happening. He stated to us that he was on anti-snatching picket checking and the accused was stopped at the picket. On suspicion he further stated that accused was on Apache motorcycle and his pillion rider fled away from the spot."
DLSH010006842015 Page 35 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act before the Court did not identify the accused as the same accomplice, who had managed to flee and probably it is for this reason that Ld. Counsel for the accused did not cross-examine this witness. Thus, the prosecution failed to get the accused identified as the same accomplice, who had fled from the spot through the oral testimony of PW3 HC Tejpal recorded on 03.05.2018 and 01.11.2023.
76. Further, it is noted that though, disclosure statement of the CCL was recorded on 28.04.2013 by PW9 SI Arvind in the presence of PW3, in which he disclosed the name of the accomplice as Rohit, but the said disclosure statement was neither relied upon by PW3, nor exhibited by PW9 during their examination-in-chief. It is probably for this reason that PW9 was not cross- examined.
77. Further, PW9 in his examination-in-chief did not state that the name of the present accused was disclosed by CCL. Rather, he stated that on 19.05.2013, on the basis of secret information, the present accused was arrested. Therefore, even from the examination-in-chief of PW9 SI Arvind, it is not clear as to how he came to know that it was Rohit i.e. present accused , who was accompanying the CCL on the day when CCL was apprehended by PW3. The secret information so received on 19.05.2013 was also not recorded in any DD entry and as such, there is nothing to show that the secret information was to the effect that accused Rohit was the same person who had accompanied the CCL on 28.04.2013 and had managed to flee when the CCL was apprehended
78. Further, even after the arrest of accused Rohit on 19.02013, his Test Identification Parade in view of Section 9 of Indian Evidence Act was not conducted by the IO / PW9. The Court is unable to understand as to how PW9 concluded that it was accused Rohit and no one else, who was accompanying the CCL, when the CCL was apprehended.
DLSH010006842015 Page 36 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
79. Therefore, even though the prosecution proved the recovery of the contraband from the possession of the CCL, but it miserably failed to prove that the present accused namely Rohit is the same person, who was accompanying the CCL on 28.04.2013, when the CCL was apprehended and that it was the present accused, who on that day managed to escape. Discussion on proceedings u/s. 55 of NDPS Act
80. As per the prosecution case, PW6 SI Vipin, the first IO of the case, after the recovery was effected from the possession of the CCL, seized the same vide seizure memo Ex. PW6/B. Perusal of the seizure memo reveals that after the recovery of the contraband was made from the CCL, the same was weighed and it was found to be 1.226 Kg of Hashish. Two samples of 25 gms each were drawn from the same and kept in two separate pullandas marked as Mark A1 and A2. The remaining contraband was kept in the remaining pulanda Mark A. All the three pullandas were sealed with the seal of VKY by PW6 SI Vipin and seal was handed over to PW3 Ct. Tejpal. The same were handed over to PW7 Ct. Irfan alongwith copy of seizure memo to be taken to the PS for compliance u/s.55 NDPS Act. As per the deposition of PW7, he took the aforesaid three pulandas, copy of seizure memo to PS Farsh Bazaar. As per deposition of PW10 Insp. Prabhu Dayal, who was posted as SHO PS Farsh Bazaar on 28.04.2013, PW7 came to his office at around 10.30 p.m. and handed over to him three pulandas Mark A, A1 and A2 bearing the seal of VKY. He in compliance of Section 55 NDPS Act affixed his counter seal upon the same i.e. seal of PDS and after confirming the FIR number from Duty Officer, he also mentioned the FIR number on the parcels and seizure memo and also signed the sealed parcel and copy of seizure memo. He further stated that he handed over the case property to PW12 ASI Sunil Dutt, MHCM and also signed the entry made in register no.19 by MHCM, Ex. PW12/A. DLSH010006842015 Page 37 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
81. Therefore, it is held that the provision of Section 55 NDPS Act were duly complied with by PW10 by placing counter-seal of PDS on the three pullandas Mark A, A1 and A2.
Compliance under section 52A NDPS Act
82. 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?
83. 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 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 DLSH010006842015 Page 38 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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."
84. 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 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 DLSH010006842015 Page 39 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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."
85. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif 2024 INSC 10457, 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 7 Judgment dated 20 December 2024.
DLSH010006842015 Page 40 of 57 SC No.155/16State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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."
86. In a very recent judgment of Bharat Aambale (supra), 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 High Court was under challenged before the Apex court. Relevant paras indicating the issue directly before the Hon'ble Court are as under:
87. "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.
88. 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."
89. 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 DLSH010006842015 Page 41 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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 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-DLSH010006842015 Page 42 of 57 SC No.155/16
State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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 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 DLSH010006842015 Page 43 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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 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 DLSH010006842015 Page 44 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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.
90.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 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 DLSH010006842015 Page 45 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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)
91. 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), 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 DLSH010006842015 Page 46 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act of proof required would be beyond a reasonable doubt.
92. Moreover, as per FSL report Ex. A1 (admitted by accused on 06.10.2017), three parcels Mark A, A1 and A2 were received at FSL and were examined by Dr. Kanak Lata Verma, Senior Scientific Officer (Chemistry) FSL Rohini. Parcel Mark A was found bearing five seals of VKY and three seals of PDS. Parcel Mark A1 was found bearing four seals of VKY and two seals of PDS and Parcel Mark A2 was found bearing four seals of VKY and two seals of PDS. Thus, as per the FSL result Ex. A1, the samples of the case property (two pullandas), as well as case property, which were sealed at the spot with the seal of VKY and were counter sealed by SHO Insp. Prabhu Dayal (PW10) with his seal of PDS, were received in the same condition with all the seals intact in the FSL on 23.05.2013.
93. It may be noted that the case property in original as primary evidence was produced during the testimony of PW6 and opened in the Court. The pullandas Mark A, A1 and A2, were found to be bearing the seal of YS. The said portion of the testimony is reproduced as under:
"At this stage MHC(M) produces one sealed envelope sealed with the seal of YS,FSL No.2013/C-4254 A-2 Ex P-3 is also written with red pen. The details of the case is also written. The seal is broken and from inside the envelope one Khaki envelope is taken out. The particulars of the present case is written on the envelope. Seal impression of VKY and PDS is also seen affixed on the sides of the paper slip, pasted on the envelope. A-2 is also marked on the envleope. The witness identified his signatures at point A on the pasted paper. The envelope is opened and from inside the envelope one transparent containing some blackish and brownish material is taken out. A-2 is also written on the transparent polythene. The same is shown to the witness and the witness identified the same which was taken as sample from the recovered contraband. The sample alongwith polythene is Ex PW6/Article-1.
At this stage MHC(M) produces one another sealed envelope sealed with the seal of YS,FSL No.2013/C-4254 A-1 Ex P-2 is also written with red pen. The details of the case is also written. The seal is broken and from inside the DLSH010006842015 Page 47 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act envelope one Khaki envelope is taken out. The particulars of the present case is written on the envelope. Seal impression of VKY and PDS is also seen affixed on the sides of the paper slip, pasted on the envelope. A-lis also marked on the envelope. The witness identified his signatures at point A on the pasted paper. The envelope is opened and from inside the envelope one transparent containing some blackish and brownish material is taken out. A-1 is also written on the transparent polythene. The same is shown to the witness and the witness identified the same which was taken as sample from the recovered contraband. The sample alongwith polythene is Ex PW6/Article-2.
At this stage MHC(M) produces one big envelope sealed with the seal VS. Sealed is broken. Envelope is opened and one dark grey colour, Pithu bag is taken sports Ankler batch is affixed on the bag. The zip of the bag is opened and one black colour polythene (Wazani) is taken out. The black colour polythene is opened and from inside the same broken rectangle slabs of black and brown colour alongwith transparent polythene and pieces of brown tape is taken out. The envelope also contains one torn cloth pulanda having a paper slip attached with the same, having sealed impression of VKY and PDS. The particular of present case is also written on the paper slip and A is also written on the paper slip. The particular of present case is also written on the torn cloth. The witness identified his signatures on the paper slip at point A. The case property is shown to the witness and the witness identified the same which was recovered from accused Sajan. The rectangular broken slabs alongwith 50 transparent polythene Zipper) and pieces of brown tape is collectively is Ex PW6/Article-3.
94. The case property was sealed by the FSL expert after examination with the seal of KLV FSL DELHI, however, when the case property was produced before the Court, it was found to be bearing the seal of YS and no clarification came forth either in the testimony of PW6 or in the deposition of PW12 ASI Sunil Dutt, MHCM, to explain as to why the case property produced before the Court did not bear the seal of KLV FSL DELHI and why the seal of YS was found affixed on all the pullandas.
95. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of VKY by PW6 SI Vipin and was further sealed at the PS by SHO Insp. Prabhu Dayal with the seal of PDS was DLSH010006842015 Page 48 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act found intact by Ms. Kanak Lata Verma, Senior Scientific Officer (Chemistry) FSL on the three pullandas Mark A, A1 and A2, which she analysed in terms of report Ex. A1 and the remaining pulanda / Parcel was not found intact bearing the seal of KLV FSL DELHI, when the same was produced before the Court and exhibited as Ex. PW6/Article-1, Article-2 & Article-3 on 02.03.2019.
96. Accordingly, the prosecution failed to prove that non-compliance of section 52A NDPS Act does not affect its case against the accused, as the case property seized at the spot could not be produced as primary evidence before the Court with the seals intact in terms of the FSL result Ex. A1.
Whether recovered substance is Hashish?
97. The case of the prosecution is that the substance, which was recovered from the possessions of the accused persons is Hashish.
98. In order to prove this fact, the prosecution relied upon FSL result dated 16.07.2013 prepared by Dr. Kanak Lata Verma, Senior Scientific Officer (Chemistry), FSL, Rohini. The said report was admitted by the accused u/s.294 Cr.P.C. 06.10.2017 as Ex. A1.
99. As per the said report dated 16.07.2013, three sealed pullandas were received in the FSL on 23.05.2013, which were examined by Dr. Kanak Lata Verma from 05.06.2013 to 16.07.2013. During examination, it was found that the three pullandas were bearing Marks A, A1 and A2, which is in line with the marks given by the IO at the spot. The said three parcels were found to be bearing the seal of VKY and PDS and were found containing "damp greenish brown semi-solid resinous material", weighing 1145, 27 and 26.43 gms respectively. On physical, microscopic, chemical and TLC examination, Ex. '1' DLSH010006842015 Page 49 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act was found to contain Charas (cannabis). The result of the examination is reproduced as undere :
"On Physical, Microscopic, Chemical & TLC examination, Exhibits '1' was found to be Charas (Cannabis)."
100. It may be noted that as per the FSL report, there is no Ex. '1', as the said number was not given to any of the three pullandas received in the FSL. The three exhibits which were given by the examiner are Exs. A, A1 and A2. There is no Ex. '1'. Therefore, as per FSL result dated 16.07.2017, which was admitted by the accused, it is not clear as to whether Exs. A, A1 and A2 corresponding to Pullanda A, A1 and A2 respectively contained substance, which on physical, microscopic, chemical and TLC examination was found to be Charas. Thus, in the opinion of the Court, the prosecution failed to prove that the substance recovered from the CCL was Charas.
Videography and Photography not done during the proceedings and CCTV footage not produced
101. It was submitted that, though, the spot, where the CCL was apprehended is in front of a bank, located in commercial as well as residential area of Vishawas Nagar, Shahdara, neither CCTV footage of the spot was collected, nor videography or photography of the proceedings was conducted by the investigating agency.
102. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2013.
103. 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?
104. Though the videography and photography of the search and seizure DLSH010006842015 Page 50 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
105. Further, it may be noted that as per the defence taken by the accused in statement u/s.313 Cr.P.C., he stated that he has been falsely implicated in the present case because of enmity of the family members of the CCL.
106. That as per the prosecution case, the present accused, who was sitting as a pillion rider on a motorcycle bearing no. DL3SB-C-9693, being driven by the CCL, managed to escape from the spot, when PW3 HC Tejpal signalled to stop the said motorcycle. Thus, as per the prosecution case, before the recovery and seizure of contraband from CCL, the present accused had already fled the spot, therefore, videography or photography of the search and seizure proceedings would as such have not shown the presence of the accused at the spot.
107. Accordingly, the absence of videography and photography at the spot during recovery proceedings, does not make much difference in the facts of the present case. However, as far as the CCTV footage is concerned, it may be noted that the failure of the investigating agency to produce the CCTV footage has gone in favour of the present accused as in absence of CCTV footage and further in absence of any evidence to establish the identity of the present accused as the same person who had fled from the spot on 28.04.2013, when the CCL was apprehended and the recovery of the contraband was made, the prosecution failed to establish the involvement of the present accused in the alleged offences punishable u/s.482 IPC and Section 8(c)/20/29 NDPS Act.
Discussions on non-joining of the public witnesses
108. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined DLSH010006842015 Page 51 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested police witnesses.
109. 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 that PW6 SI Vipin Kumar, IO that he made sincere efforts to join public witnesses, but none agreed.
110. In this regard, PW6 deposed that he approached passerby at the spot to join the investigation, but none agreed to join investigation.
111. The witness on this aspect deposed as under :-
"On 28.04.2013, I was posted at PS Farsh Bazar as SI. On that day, I was on emergency duty and my duty hours were between 8.00 PM to 8.00 AM. On receiving DD No.8A. I alongwith Ct Irfan reached at the spot that is Karkari Road, Opposite HDFC Bank, Vishwas Nagar, Shahdara where I met with Ct Tej Pal. He apprised me regarding facts of the happening. He stated to me that he was on anti snatching picket checking. He further stated that the accused was stopped at the picket on suspicion. He was on Appache motor cycle and his pillion rider fled away from the spot. He handed over the accused to me who disclosed his name as Sajan alongwith one Apache Motor cycle bearing No. DL 3SB C-9693. I verified the engine number and chasis Number of the motor cycle from Auto match and found that the number of the motor cycle was fake. And the original No. was DL 3SB C-9756. The person was carrying a bag ( Pithu bag) on his shoulder. The bag was of dark grey colour, sports Ankler batch was affixed on the bag. I opened the bag, after opening the zip and checked the same and it was found containing one black polythene having something in it. The black polythene was also checked by me and after opening it and it was found containing two packets wrapped by tape, one was small an other was big. Both the packets were opened one by one, after cutting the tape. And, it was containing black and brown colour solid substance. The black colour polythene was also containing some transparent polythene ( zipper). I counted the the transparent polythene and it was 50 in number. On physical appearance and smelling the brown and black colour substance appeared to be Charas. I directed Ct Irfan to procured the narcotics field detection kit and digital weighing machine from the P.S. Ct Irfan left the spot for the P.S. In the meantime I requested 4-5 passerby to join the investigation after disclosing the facts to them but none agreed and went away without DLSH010006842015 Page 52 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act disclosing their names and addresses, showing their genuine concerns. Due paucity of time no notice was served to the passer by who did not join the investigation."
112. Thus, once it has come on record that public witness could not be joined despite efforts having been made, then non joining of independent witness 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."
113. 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, Criminal Appeal no. 1690-1691 of 2012 decided on 19.10.12, 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."DLSH010006842015 Page 53 of 57 SC No.155/16
State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act
114. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
115. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop v. 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, the 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."
116. 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 it is clear that sufficient efforts were made by the PW-6 SI Vipin Kumar to join investigation. 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. Therefore, even DLSH010006842015 Page 54 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
117. Therefore, the non-joining of public witnesses despite sufficient efforts having been made by the investigating agency cannot be said to be fatal to the prosecution case.
Presumption
118. Established jurisprudence dictates that, only once possession is demonstrated beyond reasonable doubt, 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.
119. 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 DLSH010006842015 Page 55 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
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16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that 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 DLSH010006842015 Page 56 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act 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."
120. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417, Hon'ble Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
121. Upon reviewing the evidence, particularly the failure of the prosecution to establish that accused Rohit was the same person who had fled from the spot when the CCL was apprehended with charas/hashish, the prosecution has failed to prove the foundational facts against the accused beyond reasonable doubt. Further, the prosecution failed to prove that the primary evidence i.e. recovered contraband was produced before the Court with the seals intact as discussed above. The prosecution also failed to prove that the recovered substance was Charas / Hashish and, therefore, a 'narcotic drug' as defined in Section 2 (xiv). The presumption under sections 35 and 54 of the NDPS Act cannot be raised in this case against the accused persons, as the recovery of contraband could not be established beyond reasonable doubt. Conclusion
122. The prosecution failed to prove beyond reasonable doubt accused Rohit was the same person who had fled from the spot when the CCL was apprehended with charas/hashish and as a consequence thereof the recovery of the contraband could not be established from the possession of the present accused. Further, the prosecution failed to prove that the primary evidence i.e. recovered contraband was produced before the Court with the seals intact DLSH010006842015 Page 57 of 57 SC No.155/16 State Vs. Rohit FIR No.175/13, PS Farsh Bazaar U/s.482 IPC, U/s.8(c)/20/29 NDPS Act i.e. the seal of FSL, as discussed above. The prosecution also failed to prove that the recovered substance was Charas / Hashish and, therefore, a 'narcotic drug' as defined in Section 2 (xiv). Hence, the presumption under section 35 and 54 NDPS Act, cannot be raised against the accused to the effect that he had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug / charas-hashish without any authority or license to be in possession of the same.
Order
123. Accordingly, accused Rohit is acquitted of the offences punishable under section 482 IPC and U/s. 8(c)/20/29 NDPS Act
124. Accused is directed to furnish personal bond under section 437A Cr.P.C. in sum of Rs.10,000/- today and furnish one surety of equal amount within one week from today.
125. File be consigned to record room after due compliance. Announced in the open Court On 19th day of April 2025.
(S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi Digitally signed SAURABH by SAURABH PARTAP SINGH PARTAP LALER SINGH Date:
LALER 2025.04.19 16:49:00 +0530 SAURABH PARTAP SINGH LALER Digitally signed by SAURABH PARTAP SINGH LALER Date: 2025.04.19 16:45:48 +0530