Delhi District Court
State vs Deepak Wadhawan on 31 January, 2026
IN THE COURT OF SH. HARVINDER SINGH JOHAL
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 59289/2016)
CNR No. DLNT01-011179-2016
FIR No. 137/2016
Police Station Crime Branch North Delhi
Charge sheet filed 20/61/85 NDPS Act
Under Section
Charge framed Under 20 NDPS Act
Section
Deepak Wadhawan s/o Sh. Vimal
State Vs. Wadhawan r/o H. No. T-254, Prem
Nagar, Uttam Nagar, Delhi.
Date of institution 01.10.2016
Arguments concluded on 27.01.2026
Judgment Pronounced on 31.01.2026
Decision Convicted
JUDGMENT
BRIEF FACTS 1.1 The accused Deepak Wadhawan has been sent to face trial for committing an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
1.2. The facts of the case in brief as per the charge sheet filed by the prosecution are that the FIR in question was registered on 04.08.2016. The secret information was received on 04.08.2016 at about 05:15 AM by SI SC No. 59289/2016 FIR No. 137/2016 Page No. 1 of 38 PS Crime Branch State Vs. Deepak Wadhawan Dinesh Kumar through secret informer and it was concerning one person by the name of Deepak Wadhawan r/o Uttam Nagar, who used to supply charas in Delhi after being procured from Manali, Himachal Pradesh. As per information, the accused would come between 07:00 AM to 07:30 AM at bus stand, Flyover Mukarba Chowk, Road going towards Kashmere Gate to supply charas to one person and if raided, he could be apprehended. SI Dinesh Kumar verified the said information and shared the information with Inspector Vijender Singh by producing the informer before him. Thereafter, SHO satisfied himself after verifying the secret information and shared the information with ACP and as per instructions, SI Dinesh Kumar was directed to prepared a raiding party. Accordingly, SI Dinesh Kumar recorded the said information vide DD no. 3 at about 05:45 AM in this regard. On the directions of the SHO, one raiding party comprising of SI Dinesh Kumar, HC Abdul Hakim and HC Rajender was constituted. They left the police office alongwith the secret informer in a private vehicle i.e., Wagon R car bearing No. DL-8CD-9059 alongwith IO bag, field testing kit and electronic weighing machine vide DD No. 4.
1.3 They reached at Bus Stand, Mukarba Chowk routed through Shantivan Red Light, ISBT Kashmere Gate and Majnu ka Tila and at about 07:00 AM, one person, who was wearing black T-shirt, blue lower and slippers, carrying a backpack bag was seen coming from ISBT Kashmere Gate Road towards Mukarba Chowk Flyover. Secret informer identified the person as accused Deepak and thereafter, he left from spot. Accused waited at SC No. 59289/2016 FIR No. 137/2016 Page No. 2 of 38 PS Crime Branch State Vs. Deepak Wadhawan the spot for ten minutes and when he tried to go back, he was overpowered with the help of raiding team. Upon inquiry, apprehended person disclosed his name as Deepak Wadhawan S/o Vimal Wadhawan R/o H. No. T-254, Prem Nagar, Uttam Nagar, Delhi.
1.4 Accused was informed about his legal rights and notice under section 50 NDPS Act was served upon the accused. Accused refused to avail his legal right. Thereafter, bag carried by accused was searched by SI Dinesh and Charas was recovered. It was weighed and found to be 570 grams. The rukka was prepared and FIR was registered through HC Abdul Hakim. Thereafter, further investigation was marked to SI Vinod Kumar. IO prepared the site plan at the instance of SI Dinesh, arrested the accused, recorded his disclosure statement and seized notice under section 50 NDPS Act, two booking receipts of Swagtum Tour Travels of Kullu and one pizza booking receipts recovered during personal search of accused. IO SI Dinesh deposited the case property by producing it before SHO/Crime Branch. Compliance u/s 57 of NDPS Act was done. The samples were sent to FSL and the result was obtained. The result came out to be positive that recovered contraband was charas (cannabis). After completion of investigation, charge sheet was filed.
CHARGE
2. On the basis of material available on record, vide order dated 27.10.2016 charge u/s 20 NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.
SC No. 59289/2016 FIR No. 137/2016 Page No. 3 of 38 PS Crime Branch State Vs. Deepak Wadhawan PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 12 witnesses in all.
4. PW1 ASI Yasin Khan deposed that on 05.08.2016, on the directions of SI Vinod, he had gone to PS Crime Branch, Malviya Nagar and took two pullandas duly sealed with the seal of 3NPSBDELHI and SK from MHC(M) vide RC No. 300/21 and deposited the same in FSL Rohini. He further deposed that after depositing the pullandas in FSL, he handed over the acknowledgment receipt to MHC(M). During cross examination done on behalf of State, he admitted that he took only one sealed pullanda to FSL.
5. PW2 HC Raj Kumar, being duty officer, exhibited FIR as Ex. PW2/1, endorsement on rukka as Ex.PW2/2, certificate under section 65-B of Indian Evidence Act as Ex. PW2/3, DD No. 7 dated 04.08.2016 as Ex. PW2/4 and DD No. 9 dated 04.08.2016 as Ex. PW2/5.
6. PW3 HC Rajender, being the member of raiding team, deposed that on 04.08.2016 at about 05:40 AM SI Dinesh called him and HC Abdul Hakim in his office and informed them about the secret information. He further deposed that SI Dinesh told them about one Deepak, who used to bring Charas from Manali (H. P.) for supplying in Delhi would be coming between 07:00-07:30 AM at Mukarba Chowk, Delhi at bus stop on road going SC No. 59289/2016 FIR No. 137/2016 Page No. 4 of 38 PS Crime Branch State Vs. Deepak Wadhawan towards ISBT for supplying Charas.
6.1 He further deposed that SI Dinesh constituted a raiding party consisting of himself, HC Abdul and HC Rajender (PW3). He further deposed that SI Dinesh took his IO bag, electronic weighing machine, field testing kit and then left the office in a private car bearing No. DL-8CD-9059 alongwith secret informer at about 06:00 AM. He further deposed that after leaving office, they took a left turn from Shantiwan red light and via ISBT Kashmere Gate, Majnu ka Tila, Red Light Gopalpur and reached Mukarba Chowk from where they took a U turn from the loop under the flyover and came on the road going towards ISBT. He further deposed that the car was parked at a distance of 15 meters before the bus stop. He further deposed that near Shantiwan Red Light, under Footover bridge ISBT Kashmere Gate and after reaching the spot, 4-5 passersby had been requested to join the proceedings but none agreed. Thereafter, raiding team i.e., SI Dinesh alongwith secret informer took their position at the bus stop and he and HC Abdul took their positions within radius of five meters.
6.2 He further deposed that at about 07:00 AM, a person, who was carrying a pithu bag on his back, was seen coming on foot from side of ISBT. He further deposed that the persons stood near the bus stop and looked around for some time and started moving back after about ten minutes. He further deposed that as soon as he was about to move back, he was apprehended by the raiding team. Out of curiosity, 5-6 public persons gathered at the spot and SC No. 59289/2016 FIR No. 137/2016 Page No. 5 of 38 PS Crime Branch State Vs. Deepak Wadhawan they were requested to join the proceedings but none agreed and they all went away. He further deposed that on inquiry, accused Deepak disclosed his name and particulars. Thereafter, SI Dinesh sent HC Abdul for bringing the car to the spot.
6.3 He further deposed that thereafter, SI Dinesh introduced himself and raiding team to the accused and also informed about the secret information and that he had to be searched. He further deposed that accused was also informed that he could avail his right to be produced before the nearest Gazetted officer or Magistrate for his search. He was also informed about his legal right to search the police party and police vehicle before his search. He further deposed that notice under section 50 NDPS Act was served upon accused in this regard, copy of notice under section 50 NDPS Act is Ex. PW3/1. He further deposed that accused refused the offer made and gave his refusal which is Ex. PW3/2.
6.4 He further deposed that thereafter, SI Dinesh took casual search of accused and also took off his pithu bag and checked the same. Upon opening zip of the bag, it was found containing a transparent polythene. Polythene was taken out which was tied with a rubber band. On opening the polythene, it was found containing a black round shape substance and upon testing the same with the help of field testing kit it was found to be charas. He further deposed that SI Dinesh weighed the charas and found to be 570 grams in weight. He further deposed that two samples of 10 gram each were taken SC No. 59289/2016 FIR No. 137/2016 Page No. 6 of 38 PS Crime Branch State Vs. Deepak Wadhawan out and put in two separate plastic pouches and converted the same into pullandas and Mark A and B were given. Remaining contraband alongwith polythene was converted into another pullanad and Mark C was given. He further deposed that the bag which contained some clothes was separately converted into pullanda and Mark D was given. All the pullandas were sealed with the seal of 3APSNBDELHI and seized vide seizure memo which is Ex. PW3/3. FSL form was also filled at the spot and affixed the seal on the same.
6.5 He further deposed that thereafter, SI Dinesh prepared rukka and handed over the same alongwith all four pullandas, FSL form and photocopy of seizure memo to PW HC Abdul. Thereafter, HC Abdul left the spot in Wagon R for the police station for registration of FIR.
6.6 He further deposed that at about 03:15 PM, SI Vinod came at the spot and SI Dinesh informed him about the facts of the case. SI Vinod prepared site plan at the instance of SI Dinesh, formally arrested the accused vide arrest memo which is Ex. PW3/4, conducted his personal search vide personal search memo which is Ex. PW3/5 and recorded his disclosure statement which is Ex. PW3/6. He further deposed that thereafter, they all left the spot at about 06:00 PM and returned to office in Kotwali and IO produced accused before Inspector Vijender.
6.7 During cross examination done on behalf of State, he admitted that informer pointed out towards the accused while he was at a distance of SC No. 59289/2016 FIR No. 137/2016 Page No. 7 of 38 PS Crime Branch State Vs. Deepak Wadhawan about 25 meters from them and thereafter, informer left the spot. He admitted that accused was explained about ' Rajpatrit Adhikari' and Magistrate when notice was served upon him. He admitted that seal after use was handed over to him and carbon copy of the seizure memo was handed over to HC Abdul. He further admitted that HC Abdul was directed to hand over the rukka to duty officer and produce other articles before SHO in police station. He further admitted that when IO came to the spot, SI Dinesh handed over custody of accused and documents prepared to IO. He exhibited contraband as Ex. P1, Bag with clothes as Ex. P2 and original notice under section 50 NDPS Act as Ex. PW3/1A.
6.8 During cross examination done on behalf of accused, he stated that they had stopped the car at two places after leaving the office and before reaching the bus stop. He stated that they had stopped for about two minutes on each occasion and public persons had been requested within that span of two minutes on both the occasions. He stated that they had stopped the car towards side of the bus stop but a little before it. He stated that accused stood just near the bus stop and he did not call up anyone while he remained at the spot. He stated that he did not see any mobile phone with accused at that time, however, during personal search of accused, a mobile phone was recovered from his possession.
6.9 He stated that accused was informed that a Rajpatrit Adhikari was a person whose name was published in Gazette of Government of India SC No. 59289/2016 FIR No. 137/2016 Page No. 8 of 38 PS Crime Branch State Vs. Deepak Wadhawan and Magistrate implies as Nayikadhikari. He stated that notice under section 50 NDPS act was written on bonnet of the car. He further stated that contraband was recovered from the center pocket with the big chain and only one pants and one shirt were recovered in the bag. He denied all the suggestions put forth on behalf of accused.
7. PW4 ASI Abdul Hakim, being member of raiding team deposed on the lines of PW3 HC Rajender. In addition, he deposed that SI Dinesh Kumar prepared tehrir and handed over to him alongwith all sealed pullandas, FSL Form and carbon copy of seizure memo. He further deposed that he was directed to hand over tehrir to duty officer for registration of FIR and other articles/documents to SHO PS Crime Branch and accordingly, he went to police station in private Wagon R car bearing No. DL-8CD-9059. He further deposed that at police station he handed over tehrir to duty officer and all seized pullanda alongwith FSL form and carbon copy of seizure memo to SHO.
7.1 He further deposed that SHO put his seal impression of SK on all the pullanda and FSL Form. He further deposed that SHO called MHC(M) HC Jag Naryan in his office alongwith register No. 19 and handed over case property, FSL form and carbon copy of seizure memo after mentioning FIR number on the same and entry in register No. 19 was made.
7.2 He further deposed that thereafter, he collected copy of FIR and SC No. 59289/2016 FIR No. 137/2016 Page No. 9 of 38 PS Crime Branch State Vs. Deepak Wadhawan
original rukka from duty officer and reached office of Narcotics Cell where he met SI Vinod and handed over copy of FIR and original rukka to him as further investigation was marked to him. He further deposed that thereafter, IO left the office for spot at around 02:00 PM and returned back at about 07:00 PM with accused Deepak Wadhawan. He further deposed that accused was produced before Inspector Vijender Singh. He correctly identified the case property and accused during his deposition.
7.3 During cross examination done on behalf of accused, he admitted that crowd was passing through the spot and only 1-2 persons were present at the bus stop at that time. He denied that accused was not apprehended from Mukarba Chowk whereas he was taken down from the moving bus at Majnu ka Tila and apprehended in presence of bus passengers. He denied that notice as well as refusal was prepared in the office. He stated that bag was searched by SI Dinesh in his presence and there was also two small pockets in the bag except the main portion. He denied all the suggestions put forth on behalf of accused.
8. PW5 ASI Jag Narain, being MHC(M), exhibited entry No. 2540 in malkhana register as Ex. PW5/1 vide which on 04.08.2016, Inspector Sunil Kumar deposited four sealed pullandas alongwith carbon copy of seizure memo of 570 gram charas and one FSL form in malkhana.
8.1 He also exhibited entry no. 2541 in malkhana register as Ex.
SC No. 59289/2016 FIR No. 137/2016 Page No. 10 of 38 PS Crime Branch State Vs. Deepak Wadhawan
PW5/2 vide which personal search articles of accused including an original notice under section 50 NDPS Act were deposited in malkhana.
8.2 He also exhibited RC No. 300/21 which is Ex. PW5/3 vide which one sealed pullanda Mark A was sent to FSL through HC Yashin Khan, who handed over the acknowledgment receipt which is Ex. PW5/4 received from FSL.
9. PW6 SI Dinesh Kumar, being Ist IO deposed about the investigation carried out by him and on the lines of PW3 HC Rajender, PW4 ASI Abdul Hakim during his examination in chief. He exhibited DD No. 3 and DD No. 4 as Ex. PW6/1 and Ex. PW6/2, rukka as Ex. PW6/3, site plan as Ex. PW6/4 and report under section 57 NDPS Act as Ex. PW6/5. During cross examination done on behalf of accused, he stated that he did not convey the information regarding apprehension of accused from the spot. He stated that he conveyed information regarding apprehension of accused to his senior officers when he came back at Narcotics Office. He stated that he wrote notice under section 50 NDPS Act at the bonnet of Wagon R car and accused also wrote his reply at the bonnet itself. He admitted that the place of apprehension of accused was crowded place. He stated that he did not inform the local police about his presence. He stated that he did not call any photographer at the spot for photography and videography of the recovery proceedings. He denied all the suggestions put forth on behalf of accused.
SC No. 59289/2016 FIR No. 137/2016 Page No. 11 of 38 PS Crime Branch State Vs. Deepak Wadhawan
10. PW7 Inspector Sunil Kumar deposed that on 08.02.2016, HC Abdul Hakim came to him and produced the sealed case property consisting of four parcels with the seal of '3A PS NB DELHI' including samples and they were marked as mark A, B, C and D. He further deposed that he affixed his seal on all the parcels and FSL form and after obtaining FIR number from the duty officer, he mentioned the same on the relevant documents and all the four parcels. He further deposed that he also signed all the parcels and deposited the parcels in malkhana and lodged DD No. 8 in this regard.
11. PW8 M. L. Meena, Senior Scientific Officer (Chemistry), FSL deposed that on 05.08.2016, he received exhibits duly sealed with the seal of 3A PS/MB DELHI AND SK for examination. He examined the exhibited and found contents of exhibits containing Charas (cannabis) and prepared his report No. FSL 2016/C-6037 which is Ex. PW8/A.
12. PW9 HC Bhim Singh proved intimations received in ACP office i.e., under section 42 NDPS Act as Ex. PW9/A, under section 57 NDPS Act regarding seizure of case property as Ex. PW9/B and under section 57 NDPS Act regarding arrest of accused as Ex. PW9/C. He also proved entry regarding receipt of information under section 42 NDPS Act at serial No. 1916 as Ex. PW9/D, entry in regard to report under section 57 NDPS act regarding seizure of contraband at No. 1925 as Ex. PW9/E and entry with regard to report under section 57 NDPS Act regarding arrest of accused at serial No. 1926 as Ex.
PW9/F. SC No. 59289/2016 FIR No. 137/2016 Page No. 12 of 38 PS Crime Branch State Vs. Deepak Wadhawan
13. PW10 Retd. ACP Ranbir Singh Dahiya, deposed that on 04.08.2016, Inspector Vijender Singh informed him that IO SI Dinesh Kumar had conveyed him an information that one person namely Deepak Kumar R/o Uttam Nagar would be bringing contraband from Himachal Pradesh and would be supplying the same in Delhi and on that day, he would be coming to Mukarba Chowk between 07:00-07:30 AM on the road going towards ISBT for the purpose of supplying contraband charas. He further deposed that he instructed Inspector Vijender Singh to conduct raid as per law. He further deposed that at around 11:00 AM, he received DD No. 3 in compliance of section 42 NDPS Act.
13.1 He further deposed that on 05.08.2016, report under section 57 NDPS Act regarding seizure of contraband i.e., 570 gram of charas and report under section 57 NDPS Act regarding arrest of accused were also produced before him. Cross examination of the said witness was done on behalf of the accused but nothing substantive came out from the same.
14. PW11 SI Vinod Kumar, being second IO, deposed that on 04.08.2016 further investigation was marked to him and at about 02:30 PM, HC Abdul Hakim came and handed over copy of FIR, original rukka and certificate under section 65-B of Indian Evidence Act to him. He further deposed that he instructed HC Abdul Hakim to remain in office and he reached at the spot in the same vehicle i.e., Wagon R bearing NO.
SC No. 59289/2016 FIR No. 137/2016 Page No. 13 of 38 PS Crime Branch State Vs. Deepak Wadhawan
DL-8CD-9059. He further deposed that at the spot he met SI Dinesh, HC Rajender and accused. He further deposed that he prepared site plan at the instance of SI Dinesh. Thereafter, he arrested accused, conducted his personal search and recorded his disclosure statement. He further deposed that during personal search of accused original notice under section 50 NDPS Act, one black colour leather purse containing some articles, one mobile phone and two bus booking receipt of Swagat Tour and Travels and one invoice of Pizza Delivery.
14.1 He further deposed that he left the spot around 06:00 PM and came back at the office of Narcotics Branch where he produced accused before Inspector Vijender Singh and got registered DD No. 22 in this regard.
14.2 He further deposed that on next date he visited malkhana of PS Crime Branch and deposited personal search of accused. He further deposed that he sent under section 57 NDPS Act to ACP office.
14.3 During cross examination done on behalf of accused, he further stated that SI Dinesh did not tell him that accused is involved in trafficking of contraband and accused brought contraband from Himachal Pradesh and supplied the same in Delhi. He neither admit or deny whether he had conveyed the information regarding arrest of accused to his cousin Mukul at about 05:00 PM from the office of Crime Branch. He stated that accused could not disclose about the source of contraband. He stated that he did not SC No. 59289/2016 FIR No. 137/2016 Page No. 14 of 38 PS Crime Branch State Vs. Deepak Wadhawan investigate about the source from where contraband was procured by accused and to whom it was to be supplied in Delhi by him. He stated that he did not investigate as to in whose name the two credit cards which were recovered from the personal search of accused. He stated that when he reached at the spot, SI Dinesh, HC Rajender and accused were sitting on the bus stand. He stated that only lift was installed at the bus stand. He stated that no CCTV camera was found installed near the place of apprehension. He denied that he deliberately did not collect the CCTV footage and there were CCTV cameras installed near the place of apprehension. He denied all the suggestions put forth on behalf of accused.
15. PW12 Inspector Vijender Singh deposed that on 04.08.2016 at around 05:30 AM when he was present at his office, SI Dinesh Kumar came and informed that one person namely Deepak r/o Uttam Nagar, Delhi used to bring charas from Manali, Himachal Pradesh and thereafter, he used to sell the same in Delhi. He further deposed that SI Dinesh also told him that accused would come to Delhi between 07:00 am to 07:30 AM with huge quantity of charas and he would supply the same to one person, who would meet him on the road towards the bus stand ISBT Kashmere Gate, Mukarba Chowk Flyover, Delhi. He further deposed that SI Dinesh also produced secret informer and he made inquiries from him. He further deposed that after being satisfied about the information, he telephonically conveyed the said information to ACP Narcotics Sh. Ranvir Singh Dahiya, who directed to take legal action as per law. He further deposed that thereafter, SI Dinesh Kumar SC No. 59289/2016 FIR No. 137/2016 Page No. 15 of 38 PS Crime Branch State Vs. Deepak Wadhawan recorded secret information vide DD No. 3 in compliance of section 42 NDPS Act. He further deposed that on his directions, SI Dinesh Kumar constituted a raiding team comprising of himself, HC Rajender, HC Abdul Hakim and secret informer and left the office.
15.1 He further deposed that on the same day at around 07:00 PM, SI Vinod produced accused before him and briefed him about the facts that accused was found in possession of 570 grams of charas. He further deposed that he made enquiries from accused and recovery of charas and arrest of accused were found to be genuine.
15.2 He further deposed that on 05.08.2016, SI Dinesh produced report under section 57 NDPS Act regarding seizure of 570 grams charas from accused Deepak. He further deposed that on the same day, SI Vinod also produced report under section 57 NDPS Act regarding arrest of accused and he forwarded the said reports to ACP Ranvir Singh Dahiya.
15.3 During cross examination done on behalf of accused, he stated that he admitted that mobile number by which he conveyed the information to ACP is not mentioned in DD entry No. 3. He denied all the suggestions put forth on behalf of accused.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
16. After closure of PE, statements of accused was recorded u/s 313 SC No. 59289/2016 FIR No. 137/2016 Page No. 16 of 38 PS Crime Branch State Vs. Deepak Wadhawan Cr.P.C. on 29.07.2025, wherein he denied all the incriminating evidences put to him. He stated that he has been falsely implicated in this case and nothing incriminating substance was recovered from his possession and case property was falsely planted upon him.
16.1. He opted to lead defence evidence.
DEFENCE EVIDENCE.
17. In order to establish his defence, the accused Deepak Wadhawan has stepped into the witness box as DW-1. DW-1 is accused Deepak Wadhawan, who stated that he is innocent and he was arrested from the bus by two persons who enquired about one Vinay & subsequently, arrest and false documents were prepared and he was forced to sign blank papers. However, while in the cross examination, no specific reason or motive was mentioned for false implication.
17.1 Sh. Mukul Kapoor, has also stepped into the witness box as DW-2, who met with accused at Crime Branch, Daryaganj, where, he was informed that his cousin was apprehended with the contraband. During his cross examination, he has admitted that he was not present with the accused at the time of the apprehension of the accused with the contraband.
17.2 Accused Deepak Wadhawan has also examined one Arun Kumar as DW-3, who deposed that on 05.08.2016 at about 09:00 AM, he along with SC No. 59289/2016 FIR No. 137/2016 Page No. 17 of 38 PS Crime Branch State Vs. Deepak Wadhawan father of the accused met with accused at Crime Branch, Daryaganj, where, he was informed that accused was apprehended with the contraband. He also deposed that an application regarding false implication of accused was also filed in the Crime Branch Office, Darya Ganj Delhi. During his cross examination, he failed to furnish any document qua filing of the said application.
18. Thereafter, defence evidence was closed on the statement of the accused and matter was fixed for final arguments.
19. I have heard Sh. Gurdault Singh Sidhu, Ld. Addl. PP for State and Ms. Rajni Saini, Ld. counsel for accused.
ARGUMENTS ON BEHALF OF STATE
20. The Ld. Addl PP for the State argued that accused was found in possession of 570 grams charas and he was apprehended by PW3 HC Rajender, PW4 ASI Abdul Hakim and PW6 SI Dinesh Kumar. All these witnesses have deposed without any confusion about the manner in which recovery was affected from the accused and proceedings were carried out by PW6 SI Dinesh Kumar. Prosecution has proved the fact that all the necessary compliance have been done by PW6 SI Dinesh Kumar. IO sent the information to the SHO by sending the case property alongwith FSL form through HC Abdul Hakim. SHO affixed his seal and signature on the samples in compliance of section 55 NDPS Act. After arrest of accused, IO also sent SC No. 59289/2016 FIR No. 137/2016 Page No. 18 of 38 PS Crime Branch State Vs. Deepak Wadhawan an information as per section 57 NDPS Act. Prosecution has proved all these documents during trial. Moreover, accused has failed to rebut the presumption against him enshrined under section 35 NDPS Act.
ARGUMENTS ON BEHALF OF ACCUSED
21. On the other hand, Ld. Counsel for accused has forcefully argued that accused deserves to be acquitted in the instant matter. It is argued that not only the notice under Section 50 of the NDPS Act is required to be served upon the accused before making his search but it is also obligatory on the part of the IO to inform the accused of his rights under Section 50 of the NDPS Act. It is admitted by the IO that accused was not able to read Hindi and moreover, notice was served upon the accused after alleged recovery of contraband. It is submitted that although the prosecution witnesses have claimed that the accused was intimated of his rights but oral intimation is not sufficient compliance of Section 50 of NDPS Act. It is further submitted that IO has also not made any prior preparation to ensure the presence of any Gazetted officer or Magistrate at the spot before conducting the search of the accused.
21.1 It is further submitted that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is submitted that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52 A, in the presence of Magistrate only, whereas admittedly the samples were drawn at the spot itself and not in the presence of any SC No. 59289/2016 FIR No. 137/2016 Page No. 19 of 38 PS Crime Branch State Vs. Deepak Wadhawan Magistrate. It was also argued that no public witness was joined by the IO despite their availability. The testimonies of the police official are suffering from various contradictions which are sufficient enough to dismantle the case of the prosecution. Hence, it is prayed that accused may be acquitted by giving benefit of doubt of the case.
21.2 Ld. Counsel for the accused has vehemently argued that during the entire investigation, Police failed to establish the motive in the said crime and since, no motive was established, therefore, accused deserves to be acquitted in the present case.
REASONS FOR THE DECISION
22. Section 20 of NDPS Act is reproduced below for ready reference:-
"20. Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provisions 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;
(ii)where such contravention relates to sub-clause (b),
--
(A) and involves small quantity, with rigorous
SC No. 59289/2016 FIR No. 137/2016 Page No. 20 of 38
PS Crime Branch State Vs. Deepak Wadhawan
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."
23. Perusal of Section 20 (B) of NDPS Act would reveal that 'possession' of intermediate quantity of charas is punishable under Section 20(B) of said Act.
APPRECIATION OF EVIDENCE:
24. Hon'ble Apex Court has time and again reaffirmed as to how courts need to appreciate the evidence adduced by the parties. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21', the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and reject the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897' , wherein the Apex SC No. 59289/2016 FIR No. 137/2016 Page No. 21 of 38 PS Crime Branch State Vs. Deepak Wadhawan court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth.
24.1 In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", it was held that no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole, appears to have ring of truth or not. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief.
24.2 The Hon'ble Apex court reiterated the manner of appreciation of SC No. 59289/2016 FIR No. 137/2016 Page No. 22 of 38 PS Crime Branch State Vs. Deepak Wadhawan
evidence in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, the conviction can be maintained. It is the duty of the court to separate the grain from chaff. Hon'ble Apex Court in State of UP Vs. M.K. Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Further, Hon'ble Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks SC No. 59289/2016 FIR No. 137/2016 Page No. 23 of 38 PS Crime Branch State Vs. Deepak Wadhawan and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
24.3 As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious ( Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit SC No. 59289/2016 FIR No. 137/2016 Page No. 24 of 38 PS Crime Branch State Vs. Deepak Wadhawan Singh Vs. State of Punjab AIR 2008 SC 441 ). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
24.4 Evidently, the binding judicial pronouncements casts a duty upon the Trial Court to cull out the nuggets of truth from the evidence available on record. To sum up, while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence. 22.6 Having noted the general principles of appreciation of evidence, let us now examine the material available on record to seek an answer to determine the issue of guilt of accused.
COMPLIANCE OF SECTION 50 NDPS ACT
25. Ld. Defence Counsel has forcefully argued that the notice was served upon the accused after the allegedly recovery of contraband whereas it ought to have been served prior to the recovery. While serving the notice after recovery of contraband, IO had committed a serious error and it is under suspicion whether notice was duly served upon the accused or not. Compliance of section 50 NDPS Act is mandatory in nature and in case IO fails to comply the same, benefit of the same must go to the accused.
SC No. 59289/2016 FIR No. 137/2016 Page No. 25 of 38 PS Crime Branch State Vs. Deepak Wadhawan 25.1 In my considered opinion, the law merely requires the accused
to be informed of his right under Section 50 NDPS Act but the information may not be necessarily in writing. I am fortified in my opinion by the observations of the Hon'ble Apex Court in the matter of Vijaysinh Chanduba Jadeja Vs State of Gujarat: Crl Appeal No. 943 of 2005 with Crl Appeal No. 974 of 2003 and Crl Appeal No.1809 of 2009 date of judgment 29.10.2010 wherein it has been observed herein as under:-
"17. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh's Case(Supra). We are concerned with the following conclusions: "57.
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-Section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing." (Emphasis supplied).
25.2 Subsequently, IO PW6 SI Dinesh Kumar informed the accused about his legal rights that his further search was to be conducted and prior to that search, he had the option to get himself searched in presence of Gazetted officer or a Magistrate. Notice under section 50 was prepared and was duly served upon the accused which is Ex. PW3/1A. Accused opted not to get himself searched before a Gazetted Officer and gave his refusal on the notice itself. Thereafter, personal search of the accused was conducted by the IO but no further contraband was recovered. Therefore, in the present case SC No. 59289/2016 FIR No. 137/2016 Page No. 26 of 38 PS Crime Branch State Vs. Deepak Wadhawan significant compliance has been done by the IO by serving notice under section 50 NDPS Act that too in writing. Moreover, notice was served upon the accused in the presence of HC Abdule Hakim and HC Rajender and his personal search was also conducted in their presence. The carbon copy of the notice which is Ex. PW3/1 on which accused had received the notice is duly signed by SI Dinesh Kumar. I do not find any merit in the argument of Ld. Counsel that any illegality was committed by PW3 HC Rajender, PW4 HC Abdul Hakim and PW6 SI Dinesh Kumar by not serving the notice under section 50 NDPS Act upon the accused prior to the recovery.
NON-COMPLIANCE OF SECTION 52A OF NDPS ACT:-
26. It is submitted by Ld. Defence Counsel that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is contended that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52A, in the presence of Magistrate, whereas admittedly the samples were drawn at the spot itself and not in the presence of any Magistrate. It is submitted that samples in fact were drawn in stark violation of standing order no.1/89 dated 13.06.1989, issued under Section 52A of the NDPS Act by Department of Revenue.
26.1 The issue raised qua non compliance of section 52A by the IO, has been discussed time and again by Hon'ble Supreme Court in case titled as Simranjeet Singh v. State of Punjab, Criminal appeal No. 1443 of 2023,decided on 09.05.2023. In this case, samples were drawn by the IO at SC No. 59289/2016 FIR No. 137/2016 Page No. 27 of 38 PS Crime Branch State Vs. Deepak Wadhawan the spot and not before the magistrate and benefit of the same was given to the accused but there is a development in this regard. While hearing an appeal titled as Narcotics Control Bureau Vs. Kashif, Criminal Appeal No. 544 of 2024 decided on 20.12.2024, Hon'ble Apex Court held as under:
24. Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, however delayed compliance or non-compliance of the said provision by the concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act.
xxxxx
31. From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the scientific evidence of F.S.L. reports etc. Even otherwise, in view of the law laid down by the Constitution Benches in case of Pooran Mal and in case of Baldev Singh, any procedural illegality in SC No. 59289/2016 FIR No. 137/2016 Page No. 28 of 38 PS Crime Branch State Vs. Deepak Wadhawan conducting the search and seizure by itself, would not make the entire evidence collected thereby inadmissible. The Court would have to decide the admissibility of evidence in the context and the manner in which the evidence was collected and was sought to be used during the course of trial. The evidence collected during the course of investigation in legal and proper manner and sought to be used in the course of trial with regard to the seized contraband substance could not be simply brushed aside, on the ground of procedural irregularity if any, committed by the concerned officer authorised in making application to the Magistrate as contemplated under Section 52A of the Act.
32. Significantly, the Authorised Officer can make the application under sub- section (2) of Section 52A for three purposes - (a) for certifying the correctness of the inventory prepared by him; or (b) taking in presence of such magistrate, photographs of the seized drugs, substances and conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate, and certifying the correctness of any list of samples so drawn. The use of the conjunction "OR" made in between the three purposes mentioned therein, itself makes it explicitly clear that the purposes for which the application could be made under sub-section (2) are alternative and not cumulative in nature. Such provision specifying multiple alternative purposes could not be construed as a mandatory provision muchless its non- compliance fatal to the case of prosecution.
xxxxx
35. None of the provisions in the Act prohibits sample to be taken on the spot at the time of seizure, much less Section 52A of the said Act. On the contrary, as per the procedure laid down in the Standing Orders and Notifications issued by the SC No. 59289/2016 FIR No. 137/2016 Page No. 29 of 38 PS Crime Branch State Vs. Deepak Wadhawan NCB and the Central Government before and after the insertion of Section 52A till the Rules of 2022 were framed, the concerned officer was required to take samples of the seized contraband substances on the spot of recovery in duplicate in presence of the Panch witnesses and the person in whose possession the drug or substance recovered, by drawing a Panchnama. It was only with regard to the remnant substance, the procedure for disposal of the said substance was required to be followed as prescribed in Section 52A."
26.2 Therefore, it has been categorically held by Hon'ble Supreme Court that drawing of samples by the IO at the spot may be an irregularity and not an illegality. The accused cannot be given benefit merely on the fact that samples were drawn by the IO at the spot. The court has to see the other circumstances as well. While deliberating over section 52A Hon'ble Apex court also dealt with its earlier judgments. The court further held as under:
36. At this stage, we must deal with the recent judgments in case of Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in case of Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and in case of Mohammed Khalid and Another vs. State of Telangana ((2024) 5 SCC 393) in which the convictions have been set aside by this Court on finding non-compliance of Section 52A and relying upon the observations made in case of Mohanlal. Apart from the fact that the said cases have been decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act. Therefore, we have considered the legislative history of Section 52A and other Statutory Standing Orders as also the judicial pronouncements, which clearly lead to an inevitable conclusion that delayed SC No. 59289/2016 FIR No. 137/2016 Page No. 30 of 38 PS Crime Branch State Vs. Deepak Wadhawan compliance or non- compliance of Section 52A neither vitiates the trial affecting conviction nor can be a sole ground to seek bail. In our opinion, the decisions of Constitution Benches in case of Pooran Mal and Baldev Singh must take precedence over any observations made in the judgments made by the benches of lesser strength, which are made without considering the scheme, purport and object of the Act and also without considering the binding precedents.
xxxxx
39. The upshot of the above discussion may be summarized as under:
(i) ....
(ii) .....
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself SC No. 59289/2016 FIR No. 137/2016 Page No. 31 of 38 PS Crime Branch State Vs. Deepak Wadhawan 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."
26.3 It is not the mandate of law that the samples can only be drawn in the presence of a Magistrate and not otherwise. Further, in the case at hand, I am of the considered opinion that once the prosecution has conclusively established that the processual sanctity of seizing the contraband and its safe transit to the FSL has not been compromised then under such circumstances peripheral issues viz keeping the samples in small plastic boxes would not go to the root of the matter and the contention is found to be meritless. Thus, I cannot but disagree with the Ld. Counsel for the accused that the recovery in the instant matter has been effected in violation of Section 52A of NDPS Act or standing order no.1/89.
26.4 Since, in Kashif's case (discussed supra), Hon'ble Apex Court has dealt with Simarjeet's case (discussed supra) and thereafter, held that drawing of samples at the spot by the IO is not itself an illegality. The court has to see the other evidence as well. Delayed or non compliance of section 52A NDPS Act cannot be treated as fatal to the case of the prosecution. Therefore, in view of recent view of Hon'ble Supreme Court in Kashif's case (discussed supra), the arguments of Ld. Defence counsel qua non compliance of section 52 A NDPS Act holds no water and accordingly stands rejected.
SC No. 59289/2016 FIR No. 137/2016 Page No. 32 of 38 PS Crime Branch State Vs. Deepak Wadhawan NATURE OF RECOVERED SUBSTANCE:-
27. It is argued on behalf of accused that how SI Dinesh came to know that alleged substance recovered from the possession of accused was charas (cannabis) as he never tested the same in the field testing kit. By raising this issue, Ld. Counsel is pointing towards scope of tampering and manipulation with case property.
27.1 It is further argued that PW1 ASI Yasin Khan has testified that on 05.08.2016, he had gone to PS Crime Branch, Malviya Nagar, took pullanda duly sealed with the seal of 3NPSBDELHI and SK from MHC(M) vide RC No. 300/21 and deposited the same in FSL Rohini and after depositing the pullandas in FSL, he handed over the acknowledgment receipt to MHC(M) Ex.PW5/4. However, during his cross examination, he admitted that he took only one sealed pullanda to FSL Ex. PW3/3. PW5 ASI Jag Narain, being MHC(M), exhibited entry No. 2540 in malkhana register as Ex. PW5/1 vide which on 04.08.2016, Inspector Sunil Kumar deposited four sealed pullandas alongwith carbon copy of seizure memo of 570 gram charas and one FSL form in malkhana. It is further argued that he also exhibited entry no. 2541 in malkhana register as Ex. PW5/2 vide which personal search articles of accused including an original notice under section 50 NDPS Act were deposited in malkhana.
27.2 The report of PW8 M. L. Meena, Senior Scientific Officer (Chemistry), FSL Rohini dated 31.08.2016 clinches the issue. It is SC No. 59289/2016 FIR No. 137/2016 Page No. 33 of 38 PS Crime Branch State Vs. Deepak Wadhawan categorically mentioned in the report that on 05.08.2016, he received exhibits duly sealed with the seal of 3A PS/NB DELHI AND SK for examination. It is further mentioned in the report that upon the examination of sample, it was found to be containing Charas (cannabis) and prepared his report No. FSL 2016/C-6037 which is Ex. PW8/A. He sent back the same to the police station. Mark C was produced before the court in sealed condition during the testimony of PW-3. Therefore, right from the seizure and till the case property was produced before the court, all seals used by the police official and FSL expert were found to be intact. Mark C has been exhibited as Ex.P-1 and Mark D has been exhibited as Ex.P-2.
27.3 The argument qua non use of field testing kit could have been relevant, if there was any chance of tampering with the case property or seal. The fact of the matter is whether substance recovered from the possession of accused was contraband or not, stands proved by the report of FSL expert. Moreover, this is not a defence of the accused that report of M. L. Meena, Senior Scientific Officer (Chemistry), FSL is false and fabricated. Even, the said witness was cross examined but nothing substantive came out of it.
27.4 Ld. Defence Counsel has failed to point out any material inconsistency in the testimony of prosecution witnesses or any procedural infirmity in the process of sealing, seizure or deposit of the contraband in the FSL laboratory. Therefore, non use of field testing kit at the spot is not more than an irregularity which does not go to the roots of the case.
SC No. 59289/2016 FIR No. 137/2016 Page No. 34 of 38 PS Crime Branch State Vs. Deepak Wadhawan RECOVERY OF CONTRABAND ARTICLE:-
28. The case of the prosecution hangs upon the testimony of star witnesses PW3 HC Rajender, PW4 HC Abdul Hakim and PW6 SI Dinesh Kumar. PW3 HC Rajender has fully supported the case of the prosecution to prove the fact that accused Deepak Wadhawan was found in possession of charas which was weighed and found to be 570 grams. The testimony of PW3 HC Rajender Kumar is further corroborated by the testimony of PW4 HC Abdul Hakim and PW6 SI Dinesh Kumar and they have categorically testified that on the fateful day, accused was apprehended with a backpack bag containing charas. Star witnesses of the prosecution are cogent, consistent and credit worthy. The defence has failed to shake the credibility of the star witnesses despite a grueling cross examination of the witnesses.
28.1 The defence has also failed to point out any infirmity or any major inconsistency in the version of the prosecution witnesses so as to cast any reasonable shadow of doubt upon the prosecution version.
28.2 Ld. Counsel for the accused has vehemently argued that since, the Police has failed to establish the motive of the crime, therefore, accused deserves to be acquitted. However, Ld. Counsel for the accused has failed to appreciate that there is presumption against accused on the law as provided under Section 35 of NDPS Act, whereby, there is a presumption against the accused qua the motive, therefore, same is not required to be established. The SC No. 59289/2016 FIR No. 137/2016 Page No. 35 of 38 PS Crime Branch State Vs. Deepak Wadhawan said presumption falls within the meaning of "Shall presume" under Section 4 of the Indian Evidence Act read with Section 35 NDPS Act, whereby, it is the rebuttal presumption of law against the accused and burden to dispel that presumption was on accused. However, accused has led no evidence to counter the said presumption in his favour, therefore, arguments raised by the Ld. Counsel for the accused have no legs to stand upon. The relevant sections are hereby reproduced i.e. Section 35 of the NDPS Act as well as Section 4 of the Indian Evidence Act 1872 of the :-
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.
(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.
Section 4 of Indian Evidence Act.
4. "May presume".--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
SC No. 59289/2016 FIR No. 137/2016 Page No. 36 of 38 PS Crime Branch State Vs. Deepak Wadhawan
"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof".--When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
MINOR INCONSISTENCIES, INFIRMITIES, DISCREPANCIES IN THE PROSECUTION CASE:-
29. It is further pointed out that there is no seal handing over/ taking over memo proved on record.
29.1 Admittedly, it was desirable for the prosecution to prove on record the seal handing over/taking over memo. However, once it is established on record that the purity of the process has not been compromised then the defence cannot claim to have earn some brownie points on account of the lapses of the investigating officer. Reliance is placed upon C. Muniappan & Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567 and Sardul Singh Vs. State of Haryana in (2002) 8 SCC 372.
CONCLUSION
30. The testimony of PW3 HC Rajender, PW4 HC Abdul Hakim and PW6 SI Dinesh coupled with the unimpeached FSL Result conclusively establishes on record that on 04.08.2016, accused was found in possession of SC No. 59289/2016 FIR No. 137/2016 Page No. 37 of 38 PS Crime Branch State Vs. Deepak Wadhawan intermediate quantity of smack. Necessary compliance under section 50 NDPS Act was done by PW6 SI Dinesh Kumar by serving a notice upon the accused. After seizure of case property, samples were extracted at the spot and were sent to PW7 Inspector Sunil Kumar. PW7 Inspector Sunil Kumar sealed four pullandas of the case property in compliance of section 55 NDPS Act.
After registration of FIR, accused was arrested and PW11 SI Vinod Kumar sent a report to the SHO in compliance of section 57 NDPS Act. The samples as well as the remaining case property have been duly proved during the trial. The chain of sequence of events is complete and there is no visible defect in the investigation pointed out by the defence. Needless to say, presumption under section 35 NDPS Act is in force against the accused and it was his duty to rebut the same but he has failed to do so.
30.1 Reliance is placed upon the judgment of Hon'ble Delhi High Court in the matter of Kanwar Pal @ Mama Vs State: 2017 CrLJ 2124(Del).
30.2 In the given facts and circumstances and considering the evidence, accused Deepak Wadhawan is held guilty and is convicted for the offence punishable under section 20 of the NDPS Act. Ordered accordingly. Convict be heard for quantum of sentence on 02.02.2026 at 02:00 PM.
Digitally signed HARVINDER by HARVINDER SINGH SINGH JOHAL JOHAL Date: 2026.02.02 13:12:51 +0530 Announced in the open court (Harvinder Singh Johal) on 31.01.2026 ASJ / Special Judge (NDPS) (running in 38 pages) North:Rohini:Delhijai SC No. 59289/2016 FIR No. 137/2016 Page No. 38 of 38 PS Crime Branch State Vs. Deepak Wadhawan