Delhi District Court
State vs Mohd Shahnawaz on 20 May, 2025
DLSH010041112019 Page 1 of 72
SC 283/2019
STATE Vs. MOHD SHAHNAWAZ
FIR No.201/2019
(Jafrabad)
U/s.20 (b)(ii)(B) NDPS ACT
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC 283/2019
STATE Vs. MOHD SHAHNAWAZ
FIR No.201/2019
(Jafrabad)
U/s.20 (b)(ii)(B) NDPS ACT
In the matter of :-
State
...(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Mohd. Shahnawaz
S/o. Mohd. Aslam
R/o. Abdul Salim ka Makaan,
Gali No.17, Mustafabad, Delhi
....accused
(Sh. Saleem Khan, Advocate)
Date of institution : 17.06.2019
Date when Judgment reserved : 09.05.2025
Date of Judgment : 20.05.2025
Final decision : Acquitted
JUDGMENT:-
1. Accused Mohd. Shahnawaz is before the Court facing charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that 1.965 Kg Ganja (intermediate quantity) was recovered from his possession on 18.04.2019.
2. In view of alleged recovery of 1.965 Kg Ganja from accused Mohd.
Shahnawaz, FIR No. 201/19 was lodged at PS Jafrabad on 19.04.2019. After completion of investigation, charge-sheet was filed on 17.06.2019. Charge DLSH010041112019 Page 2 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT was framed on 28.10.2022 for offence u/s.20 NDPS Act, which reads as under :
"
CHARGE That on 18.04.2019 at about 9.30 PM at Road No. 66, Noor Tantwala, School, Jafrabad, Delhi, you were apprehended by the police party while you were going towards Maujpur site and you were found in possession of a plastic katta containing 1,965 gm Ganja, which you had kept in your plastic katta in contravention of provisions of NDPS Act and thereby you committed an offence punishable under Section u/s. 20 NDPS Act, 1985 and within the cognizance of this court."
3. In order to prove the aforesaid charge, the prosecution examined 11 witnesses.
The details of the said witnesses alongwith the documents that they exhibited during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description
exhibited
PW1 HC Nawab (Duty Ex. PW1/1 Copy of FIR
Officer) Ex. PW1/2 Endorsement on rukka
Ex. PW1/3 Certificate u/s.65B of Indian Evidence Act
PW2 ASI Rakesh Kumar Ex. PW2/1 Statement of PW2
(recovery witness, Ex. PW2/2 Carbon copy of notice u/s.50 NDPS Act
who initially
apprehended the Ex. PW2/3 Seizure memo of contraband
accused) Ex. PW2/4 Site plan
Ex. PW2/5 Body search memo of accused
Ex. PW2/6 Disclosure statement of accused
Ex. PW2/7 Arrest memo of accused
Ex. PW2/8 Personal search memo of accused
Ex. PW2/9 Original notice u/s.50 NDPS Act
Ex. P1 Rs.250/- recovered from accused at the time
of bodily search
Ex. P2 Plastic katta in which contraband was
recovered from accused
Ex. P3 Contraband recovered from accused
DLSH010041112019 Page 3 of 72
SC 283/2019
STATE Vs. MOHD SHAHNAWAZ
FIR No.201/2019
(Jafrabad)
U/s.20 (b)(ii)(B) NDPS ACT
Ex. P4 Sample of contraband
Ex. P5 Sample of contraband
PW3 HC Lokesh Ex. PW3/1 Supplementary disclosure statement of
(recovery witness accused
accompanying
PW2, who initially
apprehended the
accused)
PW4 ACP Vivek Tyagi Ex. PW4/A Entry No.2174 dated 19.04.2019
(SHO - witness of
compliance of
Section 55 NDPS
Act)
PW5 ASI Satish Kumar Ex. PW5/A Copy of RC No.67/21/19
(MHCM) Ex. PW5/B Copy of acknowledgment of FSL
PW6 HC Satya Prakash
(witness deposited
sealed parcel Mark
S1 at FSL)
PW7 HC Chaman
(recovery witness,
who had
accompanied PW9
SI Devender
Singh / IO)
PW8 PW8 ASI Manoj Ex. PW8/A Entry vide Diary No.1806 dated 19.04.2019
Kumar (Reader to Ex. PW8/B Original report u/s.57 NDPS Act ACP) PW9 ASI Devender Singh (Investigating Officer) PW10 Retired ACP Dinesh Kumar Sharma (witness of bodily search of accused after case property was seized) PW11 ASI Satish Kumar Ex. PW11/A Entry at sl. no.2174/19 in register no.19 (MHCM) Ex. PW11/B Copy of RC No.67/21/19 DLSH010041112019 Page 4 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT [inadvertently PW5 Ex. PW11/C Acknowledgment of FSL was examined again as PW11] Admitted documents Ex. AD-1 FSL result dated 29.05.2019 (admitted by accused under section 294 Cr P C / 330 BNSS on 29.10.2024)
4. Upon examining the testimony of the aforesaid witnesses, it is found that:-
4.1. On 18.04.2019, PW2 HC Rakesh Kumar and PW3 Ct. Lokesh were on patrolling duty in the area of PS Jafrabad and at about 9.30 pm, when they reached at Tentwala school, they saw accused standing at Metro pillar no.191, while carrying one white colour plastic katta in his hand and as his conduct was found suspicious, they apprehended him and when they asked him about the contents of plastic katta, accused did not give satisfactory answer.
4.2. Thereafter, PW2 HC Rakesh Kumar and PW3 Ct. Lokesh opened the katta and it was found containing one transparent polythene having greenish material, which appeared to be Ganja from its smell and physical appearance and thereafter PW2 HC Rakesh Kumar telephonically informed Duty Officer and after some time, PW9 SI Devender alongwith PW7 Ct. Chaman came at the spot and took over custody of accused and recorded statement of PW2 HC Rakesh Kumar Ex.PW2/1.
4.3. PW9 SI Devender apprised accused about his legal right, that if he wants, he can take search of the police team before his search and he can be searched in presence of gazetted officer or magistrate, but accused refused for the same and thereafter SI Devender served original notice under section 50 of the NDPS Act Ex.PW2/9 and PW9 SI Devender recorded the refusal of accused on the carbon copy of notice Ex.PW2/2 DLSH010041112019 Page 5 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT as accused stated that he was uneducated and could only sign. 4.4. PW9 SI Devender telephonically informed PW10 ACP Dinesh Kumar Sharma about his apprehension and thereafter, PW9 SI Devender weighed the polythene containing Ganja, which was found to be 1965 grams, out of which he took out two samples of 50 grams each and marked the pullandas as Marks S1 and S2. The polythene containing Ganja was marked as Mark A and the pullanda of katta was marked as Mark B. He sealed all the parcels with the seal of DS, filled the FSL form, handed over the seal to PW3 Ct. Lokesh after use and prepared seizure-memo Ex.PW2/3.
4.5. In the meantime, PW10 ACP Dinesh Kumar Sharma arrived at the spot and apprised accused about his legal rights and on his directions PW9 took bodily search of accused, but no further contraband was recovered and he prepared the body search memo Ex.PW2/5, in this regard.
4.6. PW9 SI Devender prepared the rukka and handed over the same to PW7 Ct. Chaman alongwith FSL Form, copy of seizure-memo and sealed parcels with directions to hand over the rukka to the Duty Officer and remaining articles to the SHO.
4.7. PW7 Ct. Chaman went to PS Jafrabad and handed over the rukka to PW1 HC Nawab, who registered FIR Ex.PW1/1, made endorsement on the rukka Ex.PW1/2 and issued certificate u/s 65B of IEA qua the printout of FIR Ex.PW1/3.
4.8. PW7 Ct. Chaman produced the sealed parcels and other documents to PW4 Vivek Tyagi, the then SHO, who counter-sealed the parcels and FSL form with the seal of SHO VIVEK TYAGI, mentioned FIR number and other details on all the parcels and documents and also signed the DLSH010041112019 Page 6 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT same and thereafter, he called PW5 / PW11 ASI Satish, MHCM to his office and handed over all the four sealed parcels, FSL form and copy of seizure-memo to him, who made entry in register no.19 in this regard Ex.PW11/A (PW4/A) 4.9. PW7 Ct. Chaman obtained the copy of FIR and original rukka from PW1 HC Nawab, came back at the spot and handed over the same to PW9 SI Devender, who prepared site plan Ex.PW2/4.
4.10. PW9 SI Devender recorded disclosure statement of accused vide Ex.PW2/6 and thereafter arrested him vide arresting documents Ex.PW2/7 and Ex.PW2/8 and from his personal search, Rs.250 and original notice under section 50 of the NDPS Act were recovered. 4.11. Thereafter, PW9 prepared report under section 57 of the NDPS Act Ex.PW8/B, regarding seizure of contraband and arrest of accused, which was forwarded to the office of ACP, Sub-Division, Bhajanpura, where it was received by PW8 ASI Manoj, who made entry in Dak register Ex.PW8/A and placed the same before PW10 ACP Dinesh Kumar Sharma who has seen and signed the same.
4.12. PW5/ PW11 ASI Satish Kumar handed over one sealed parcel to PW6 Ct. Satya Prakash vide RC No.67/21/19 Ex.PW11/B (Ex.PW5/A), who deposited the same at FSL and received acknowledgment of FSL Ex.PW11/C (Ex.PW5/B), which was deposited by him at the malkhana. 4.13. Ms. Kavita Goyal, Assistant Director (Chemistry) analyzed sample Mark S1 at FSL and contents of the same was found to be Ganja and thereafter she prepared her report Ex.AD-1 (admitted by accused u/s 330 BNSS/294 Cr.P.C.).
5. After closing of the prosecution evidence, statement as well as additional statement of the accused under Section 313 Cr.P.C. were recorded wherein he DLSH010041112019 Page 7 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT pleaded his innocence and claimed that he was lifted from Brahmpuri Road, Gali No.9 and not from Jafrabad Road and falsely implicated in the present case. Accused opted not to lead evidence in his defence and accordingly, DE was closed.
6. I have heard the Ld. Additional Public Prosecutor and the Ld. LAC for the accused and perused the record.
Arguments advanced
7. I have heard Sh. Jitender Sharma, Ld. Additional Public Prosecutor and Sh.
Saleem Khan, Ld. Counsel for accused and perused the record.
8. Ld. Counsel for the accused addressed final arguments on 09.05.2025, which were duly recorded in the order-sheet of even date. The submissions made by the Ld. Counsel are as under :
8.1. The investigation has been carried out by PW9 SI Devender Singh, who is neither an empowered officer, nor authorised by empowered Gazetted Officer to conduct search and seizure under the NDPS Act. 8.2. That the alleged recovery was made from the accused, but notice u/s.50 NDPS Act was not served upon him, hence, there is non-compliance of Section 50 NDPS Act.
8.3. That notice u/s.50 NDPS Act fails to mention that the accused was informed that he has a right to be taken to 'nearest' Magistrate or Gazetted Officer for his search, which is essential in view of judgment titled Mohd. Javed Vs. State, 2023 SCC Online DEL 1827. 8.4. Despite the fact that public persons were present at the spot at the time of alleged apprehension of accused, however, no public person has been cited as witness in the present case.
8.5. There was DTC Bus Stand, two schools and shops near the spot, however, no efforts were made by the investigating agency to join any official / DLSH010041112019 Page 8 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT employee from the said places, during the recovery proceedings. 8.6. Ld. Counsel for the accused brought to the attention of the Court the deposition of PW2 ASI Rakesh Kumar and pointed out that as per the details of the case property produced given in his deposition, there is no mention of the fact that the signatures of the accused were obtained on the plastic katta, in which the case property was sealed. Moreover, the case property so produced was not bearing the seal of VIVEK TYAGI STATION HOUSE OFFICER.
8.7. Ld. Counsel argued that no record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW9 SI Devender Singh.
8.8. Ld. Counsel for the accused also submitted that PW9 testified that he prepared the seizure memo and notice u/s.50 NDPS Act before the registration of FIR, but upon perusal of contents of seizure memo Ex.
PW2/3 and carbon copy of the notice Ex. PW2/2, it is found that the FIR number is found mentioned on the said documents, which shows that they were prepared after the registration of FIR. In this regard, Ld. Counsel relied upon judgments titled as Prithvi Pal Singh Munna Vs State, 2000 (1) JCC (Delhi) 274 and Giri Raj Vs State, 2000 (83) DLT 201. 8.9. It was further submitted by Ld. Counsel for the accused that seal in the present case after use was handed over by PW9 to PW3 HC Lokesh and not to any public person, despite the fact that the place of recovery is a busy road and there was DTC Bus Depot and school nearby. Tampering of the case property by the police officials after the seizure cannot be ruled out, as the seal remained in the possession of the members of police team after the alleged seizure of the contraband.
8.10. Ld. Counsel for accused vehemently argued that as the sampling DLSH010041112019 Page 9 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT proceedings in the present case were not conducted by the Magistrate u/s 52A NDPS Act, hence as per judgment of Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No.1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC 379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, 2024 DHC 5099, the trial stand vitiated, and the accused is entitled to acquittal.
8.11. There is no videography or photography of the recovery proceedings and no CCTV footage has been produced of the spot or nearby areas, to establish the presence of the accused at the spot.
8.12. That DD No.38B regarding departure was neither produced nor proved by the investigating agency.
8.13. PW2 stated that when he checked the contents of the white katta being carried by the accused, he smelled it and found it to be Ganja, but no evidence was produced to show that the said police witness had undergone training w.r.t. the identification of different kinds of contraband. 8.14. PW1 / DO HC Nawab stated that he received intimation regarding apprehension of accused at 9.00 p.m., whereas, as per PW2 ASI Rakesh Kumar and PW3 HC Lokesh stated that they apprehended the accused at 9.30 p.m. 8.15. PW9 SI Devender Singh (IO) in his cross-examination stated that he received DD No.41B at 9.55 p.m. and after 10-15 minutes, he left the police station, but as per departure entry no.43, he left PS at 10.02 p.m. 8.16. PW9 SI Devender Singh in his cross-examination stated that when he left the PS, he was already having a weighing machine in his possession, which he had not got issued from the Malkhana on that day. Thus, there is no proof of the fact that the weighing machine used to weigh the DLSH010041112019 Page 10 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT contraband was provided to him by government.
8.17. PW2 ASI Rakesh Kumar stated that the place of apprehension of accused was just 5 minutes by foot from PS, whereas PW3 HC Lokesh stated that PS was at distance of 20 minutes by foot.
8.18. PW9 SI Devender Singh (IO) admitted in his cross-examination that there was a middle school as well as Senior Secondary school at some distance from the spot, however, in the site plan Ex. PW2/4, the middle school has not been depicted / shown by PW9.
8.19. The recovery has been planted upon the accused and the accused has nothing to do with the present case.
9. On the same day, Ld. Addl. Public Prosecutor made the following submissions:
9.1. Recovery from the accused has been duly proved by way of evidence of the prosecution witnesses and the same could not be shaken during their cross-examination.
9.2. That as far as the word 'nearest' magistrate or gazetted officer in notice under section 50 of the NDPS Act is concerned, merely because of the same the notice cannot be said to be defective in view of the judgment of Hon'ble Apex Court in case titled State of NCT of Delhi Vs Mohd. Zabir, [Crl. Appeal No.4921/2024 dated 02.12.2024].
9.3. That investigating agency made sufficient efforts to join the public witness and it is because of the reluctance of the public witnesses to join the proceedings that no public witness could be joined in investigation. 9.4. That non-compliance of Section 52A NDPS Act does not lead to automatic acquittal in view of judgment titled Bharat Ambale Vs. The State of Chhattisgarh, 2025 INSC 78.DLSH010041112019 Page 11 of 72 SC 283/2019
STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 9.5. That PW9 SI Devender Singh is an empowered officer u/s.42 NDPS Act and, therefore, competent to take action u/s.43 NDPS Act. 9.6. That the notice u/s.50 NDPS Act was duly served upon the accused and the original notice was also recovered from his possession during his personal search after his arrest.
9.7. That there is no requirement under the law that the pullandas prepared upon seizure of the case property also require to be signed by the accused.
9.8. That the weighing machine was used by PW9 merely for the purpose of weighing the contraband and as such, the source from which it was obtained, does not assume significance.
9.9. That no question was put to PW9 regarding how the FIR number found mentioned on the seizure memo and carbon copy of the notice, if they were prepared before registration of FIR, hence, no explanation in this regard came forward.
9.10. That the seal after sealing of the case property was duly handed over by PW9 to PW3 and the case property was handed over to PW7, who took the same to PS, hence, there was no possibility of tampering of the case property.
9.11. That it is not essential to show all the nearby places in the unscaled hand made site plan, prepared by IO. The purpose of the site plan is to indicate the place of recovery w.r.t. a nearby landmark and not to show each and every building nearby.
9.12. That other discrepancies pointed out by the Ld. Counsel for accused are minor in nature and are bound to occur as witnesses were examined more than three years after the incident.
DLSH010041112019 Page 12 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 9.13. That the prosecution has duly proved all the relevant facts to establish that the contraband was recovered from the possession of the accused and, therefore, accused is liable to be convicted. Legal Requirement to prove the Charges
10. Accused has been charged for offences u/s.20(b)(ii)(B) of NDPS Act. 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)
11. As far as contravention of the provision is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export DLSH010041112019 Page 13 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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)
12. As per the Section, possession of all narcotic drugs is prohibited by Section 8 NDPS Act.
13. 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;
14. As per the definition, 'narcotic drug' includes cannabis (hemp). Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
15. 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
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom" (emphasis supplied)
16. "Cannabis (hemp)" besides other things also means Ganja i.e. the flowering and fruiting tops of cannabis plant. In the present case, the prosecution would be required to prove that the recovered substance was Ganja.
DLSH010041112019 Page 14 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT
17. 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."
18. 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 'Ganja'. As per entry at serial no.55 in the said notification, the small quantity for Ganja is 1000 gms and commercial quantity is 20 Kgs.
19. In order to prove the charges u/s.20(b)(ii)(C) NDPS Act, the prosecution is required to prove the following facts :
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder. (3) That the contraband was Ganja.
(4) That the quantity of the contraband was intermediate (i.e more than 1 Kg), for Section 20(b)(ii)(B) NDPS Act.
20. 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 DLSH010041112019 Page 15 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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.
21. In State of Punjab vs. Balbir Singh 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57.1
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."DLSH010041112019 Page 16 of 72 SC 283/2019
STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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 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 DLSH010041112019 Page 17 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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."
22. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
23. 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:
DLSH010041112019 Page 18 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT Discussion on the point of compliance of Section 42 of NDPS Act
24. 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 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)
25. Section 42 of the NDPS Act provides that the concerned police officer, who DLSH010041112019 Page 19 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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.
26. 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.
Whether Section 43 NDPS Act applicable?
27. It may however be noted that the recovery in the present case was made from the accused while he was present on Road No.66, Noor Tent Wala School, Jafrabad, Delhi. For a recovery made from a suspect on a public road, instead of section 42, section 43 comes into play, which is reproduced as under:
43. Power of seizure and arrest in public place.--
Any officer of any of the departments mentioned in section 42 may --
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation:-- For the purposes of this section, the expression "public place"
includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.DLSH010041112019 Page 20 of 72 SC 283/2019
STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT
28. In State of Punjab Vs Baldev Singh AIR 1999 SC 2378, Hon'ble Constitution Bench of the Apex Court observed as under:
"The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful."
(emphasis supplied)
29. In Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence (2002) 8 SCC 7 Full Bench of Hon'ble Apex Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the Appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:
"In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non- compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant."
30. In Krishna Kanwar (Smt.) Alias Thakuraeen v. State of Rajastha (2004) 2 SCC 6081 a Division Bench of Hon'ble Apex Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the Appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:
"Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, DLSH010041112019 Page 21 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deal with "building, conveyance or enclosed place"
whereas Section 43 deals with power of seizure and arrest in public place. Under sub- section (1) of Section 42 the method to be adopted and the procedure to be followed have been laid down. If the concerned officer has reason to believe from personal knowledge, or information given by any person and has taken down in writing, that any narcotic drugs or substance in respect of which an offence punishable under Chapter IV of the Act has been committed or any other articles which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset, do the acts enumerated in clauses (a), (b), (c) and (d) of sub-section (1).The proviso came into operation if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escaped offender, he may enter and search such building, conveyance or enclosed place any time between sunrise and sunset after recording grounds of his belief. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) that 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 forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place."
(emphasis supplied)
31. In Directorate of Revenue and Ors. vs. Mohammed Nisar Holia 2007 INSC 1226 Hon'ble Apex Court observed:
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under Sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection DLSH010041112019 Page 22 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not places."
(emphasis supplied)
32. In S K. Raju vs. State of West Bengal 2018 INSC 780, Full Bench of Hon'ble Apex Court categorically observed that Section 43 is attracted in cases where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. Paras-7 and 8 of the said judgment are DLSH010041112019 Page 23 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT reproduced as under :
"7. An empowered officer Under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an Article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
8. The Appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application."
(emphasis supplied)
33. As per the aforesaid judgments, in case of detention and search of any suspect in any public place, section 42 does not apply, rather section 43 is applicable.
34. In this case, the police apprehended the accused on a public road, and the recovery was made there, not from any building, vehicle, or hidden place. Thus, the recovery took place in a public area, allegedly from the possession of the accused.
35. As per section 43 of NDPS Act, any officer empowered u/s.42 may detain and search any suspect, whom he has reasons to believe to have committed offence under NDPS Act and also seize any narcotic drug or psychotropic substance, if so found in such public place. In this case, it was PW2 ASI Rakesh Kumar and PW3 HC Lokesh, who apprehended the accused with the contraband and informed the PS, from where PW9 SI Devender Singh, reached the spot and conducted search and seizure proceedings. PW9 SI Devender Singh, being a Sub-Inspector in Delhi Police, is empowered u/s.42 NDPS Act vide notification dated 14.11.1985 reproduced as under :
DLSH010041112019 Page 24 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of 1985) read with the Government of India, Ministry of Home Affairs Notification No.S.O. 818(E) dated the 8 th November, 1985 the Administrator of the Union territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi, between sunrise and sunset, to :
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; and
(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act relating to such drug or substance;
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
36. As per the said notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW9 SI Devender Singh, being a Sub-Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act. As per section 43, in view of the aforesaid notification, PW9 SI Devender Singh was also empowered to detain and search any suspect found in any public place, whom he had reason to believe to have committed an offence punishable under NDPS Act. Therefore, as per Section 43 of the NDPS Act, PW9 was competent to take further action upon apprehension of accused with Ganja i.e. to proceed with search and seizure.
37. In the opinion of the Court, Section 43 NDPS Act is applicable in the present DLSH010041112019 Page 25 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT case, as the recovery was made in a public place (road), and its provisions were duly complied with in the facts of the present case. Moreover, PW9/IO was competent to conduct search and seizure u/s.43 NDPS Act. Discussion on the point of compliance of Section 50 of NDPS Act
38. Section 50 NDPS Act is as under :
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
39. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his bodily search was carried out. However, in his statement recorded under Section 313 Cr.P.C., in answer to question no.32, the accused denied that he was given notice u/s.50 NDPS Act and that his refusal was recorded on the same. In his defence, in answer to question no.173, the accused stated that he lifted from Gali No.9, Brahm Puri Road and not from Jafrabad and falsely implicated in the present case.
2Dated 26.04.2025 3 Dated 26.04.2025 DLSH010041112019 Page 26 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT
40. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused?
41. PW9 SI Devender Singh in his deposition categorically stated that he had only informed the accused that as Ganja was recovered from the plastic katta being carried by the accused, hence, he may also be carrying Ganja. He further informed the accused that he has a legal right to search the members of raiding team. He also stated that search of accused can be conducted in the presence of a Gazetted Officer or a Magistrate. PW9 prepared notice u/s.50 of NDPS Act in his handwriting and handed over the same to the accused, who refused to avail his legal rights. As the accused stated that he was illiterate, hence his refusal was recorded by PW9 on carbon copy Ex. PW2/2, upon which signatures of accused was obtained. Testimony of this witness on this aspect is as under :
"....... Thereafter I introduced myself and apprised the accused that he is carrying ganja and also apprised him about his legal right by saying that he can get himself searched as well as he can take search the police team in the presence of any Gazetted officer or the Magistrate or that he can be taken to a gazetted officer or magistrate for the said purpose, however accused refused to get himself searched in the presence of any Gazetted officer or the Magistrate as well as to search the police team in the presence of any Gazetted officer or the Magistrate.........."
42. The deposition of PW9 as regards compliance of Section 50 NDPS Act is further supported by deposition of PWs 2, 3 & 7.
43. It is noted that all the three witnesses in their examination-in-chief categorically stated that the notice was duly served upon the accused and that the reply to the notice was written by IO / PW9 on the carbon copy in his own handwriting and signatures of the accused was obtained thereon. The Court has gone through the cross-examination of these witnesses, but no material contradictions are found therein.
DLSH010041112019 Page 27 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT
44. There are no material contradictions in the depositions of these four witnesses, which may create a doubt regarding the service of notice u/s.50 NDPS Act.
45. Further, as the accused has not categorically denied his signatures at point Z on the carbon copy of the notice Ex. PW2/2, the presence of signatures of the accused on the carbon copy of the notice is further evidence of the fact that the notice was duly served upon the accused. Moreover, the original notice was also recovered from accused, when his personal search was carried out upon his arrest by PW9 vide memo Ex. PW2/8.
Issue as regards absence of word 'nearest' in the notice :
46. The notices u/s 50 NDPS Act have also been challenged by the Ld. Counsel for the accused on the ground that the said notice Ex. PW2/2 does not mention that the accused was informed that it is his right to be taken to 'nearest' Magistrate or Gazetted Officer for his search, if so, required by him. Therefore, the notice is defective.
47. In this regard Ld. Counsel relied upon judgment titled Mohd. Jabir Vs. State (NCT of Delhi)4 2023 SCC Online Del 1827. However, the judgment in Mohd Jabir (supra) was challenged in appeal before the Hon'ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd. Jabir {Crl. Appeal 4 Relevant pars of the judgment:
"42. In the present case, section 50 notice which was served upon the applicant reads as under: "You have the legal right to get yourself searched in the presence of any Gazetted Officer or Magistrate."
43. In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate
44. However, the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.
45. It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50. .........
47. As is clear from the above, the emphasis on the word "nearest" is important since it ensures independence. In deviating from the provisions as laid down in section 50, the IO practiced a third option of having the search conducted by someone who was part of the operation of this particular alleged drug seizure. The IO practiced a third option which is unknown to law."
DLSH010041112019 Page 28 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT No.4921/2024 dated 02.12.2024}. In the said judgment Hon'ble Apex Court, 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 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)
48. Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
49. In view of the testimonies of above witnesses, namely, PW2, PW3, PW7 and PW9, the prosecution proved that the accused was duly served with the notice under Section 50 of the NDPS Act before his bodily search and that the provisions of Section 50 NDPS Act were duly complied with.
50. It may further be noted that despite the refusal of the accused, the search of the accused was conducted in the presence of PW10 ACP Dinesh Kumar Sharma, who is a gazetted officer of Delhi Police and an empowered officer u/s.42 of the NDPS Act. However, no contraband was recovered during his bodily search.
Whether compliance of Section 50 NDPS was required in facts of this case?
51. It may be noted that, though the prosecution proved beyond reasonable doubt that the notice u/s.50 NDPS Act was duly served upon accused, however, no contraband was recovered from his bodily search, rather, the contraband was found to be in plastic katta, which the accused was carrying. Therefore, DLSH010041112019 Page 29 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT another question that arises before the court is: Whether compliance of Section 50 NDPS Act was required in the present case as the recovery was effected from the plastic katta, being carried by accused and not from the person of accused?
52. It may be noted that from the bodily search of the accused, no contraband was recovered. The contraband was found in the plastic katta, being carried by the accused. As regards recovery made from bag, briefcase or vehicle of the suspect is concerned, it has been observed by the Hon'ble Apex Court that the provisions of section 50 NDPS Act do not apply to recoveries other than those made from the person of the accused.
53. In this regard, Hon'ble Apex Court in case titled as State of Himachal Pradesh and Ors. vs. Pawan Kumar and Ors. 2005 INSC 1935, has observed as under:
"8. The dictionary meaning of the word "person" is as under :
Chambers's An individual; a living soul; a human
Dictionary : being;
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 Third International Dictionary An individual human being; a New: 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 Law In general usage, a human being (i.e. natural person), Dictionary: though by statute term may include labour organizations, partnerships, associations, corporation.
Law Lexicon: The expression 'person' is a noun according to grammar by P. Ramanatha and it means a character represented as on the stage, a Aiyar human being; a self-conscious personality."5
Three Judges Bench DLSH010041112019 Page 30 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT
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 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 DLSH010041112019 Page 31 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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)
54. 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 and there was no other person present. The argument based on non- compliance of Section 50, as explained in the case of Baldev Singh 6, was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused.
55. 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.
56. 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.
57. 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 6 State of Punjab vs. Baldev Singh and Ors. (21.07.1999 - Constitution Bench) : MANU/SC/0981/1999 :
1999 INSC 282.DLSH010041112019 Page 32 of 72 SC 283/2019
STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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.
58. 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.
59. 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.
60. 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.
61. 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.
62. In Saikou Jabbi v. State of Maharashtra MANU/SC/0991/2003, heroin 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.
63. It may be argued that in a case where the suspect as well as the bag he is carrying, is searched, compliance of Section 50 is essential in view of judgment of the Hon'ble Apex Court in State of Rajasthan Vs Parmanand & Anr, (2014) 2 RCR (Criminal) 40 ; Dilip & Anr. Vs. State of MP, AIR 2007 DLSH010041112019 Page 33 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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 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 DLSH010041112019 Page 34 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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)
64. 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 7, 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 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 7 Like the recovery has been made from the plastic katta being carried by accused in the present case.
DLSH010041112019 Page 35 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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."
65. 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 plastic katta, being carried by accused and not from his bodily search.
66. Based on the testimonies of witnesses PW2, PW3, PW7 & PW9, it has been established that the accused was duly served with notice under Section 50 of the NDPS Act before his bodily search was conducted and there was no violation of this mandatory provision. Further, despite the refusal of accused to get himself searched before a Gazetted Officer, his search was carried out in the presence of an empowered Gazetted Officer i.e. PW10 ACP Dinesh Kumar Sharma. Additionally, according to the observations in the referenced judgments, compliance with Section 50 is not required for recovery from the plastic katta, being carried by accused.
Discussions on non-joining of the public witnesses
67. During course of arguments, Ld. Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police DLSH010041112019 Page 36 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT witnesses who are not reliable and creditworthy being interested witnesses. Ld. Counsel submitted that the recovery has been effected from a public place surrounded by residential and commercial area besides two schools, DTC Bus Stand & metro station, but despite that, not even one public witness was joined during the course of investigation and no notice was served to public persons, who refused to join investigation.
68. 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 PW9 SI Devender Singh (IO) made sincere efforts to join public witnesses, but none agreed.
69. In this regard, PW9 deposed that he made efforts to join 4-5 public persons after the accused was apprehended, but none of them agreed to join investigation and left without disclosing their names and addresses. Even the other members of the raiding team i.e. PW2 & PW3 stated that efforts were made by the IO to join 4-5 public persons, but none agreed to join the investigation.
70. In the cross-examination, PW2 admitted that there was a school and DTC bus stand near the spot, but no public persons could be joined in the investigation. Even PW3 admitted the same facts and PW9 also stated that besides two schools, there were residential area and shops at a distance of 15-20 meters from the spot. However, he did not ask either the officials of the school, or the residents and shopkeepers of the nearby residential and commercial area to join investigation.
71. The Court while considering as to why the public persons refuse to join recovery proceedings, needs to consider the perspective of an ordinary individual who being not familiar with legal procedures, may fear retaliation from drug traffickers in cases where they serve as a witness, and may face DLSH010041112019 Page 37 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT significant inconvenience without any personal gain, instead possibly losing time, money, and peace of mind. Due to these challenges, it is uncommon for people to volunteer as witnesses, especially in cases involving drugs, trafficking, and smuggling, which often involve organized criminal groups/cartels.
72. Therefore, if efforts to include a public witness have been documented but were unsuccessful, the absence of an independent witness does not undermine the prosecution's case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana 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."
73. 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 AIRONLINE 2012 SC 728, it was held :-
74. "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 DLSH010041112019 Page 38 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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."
75. 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'.
76. 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 and Ors. vs. State MANU/DE/3428/2016 : 2016:DHC:8131 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 Vs. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, 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 MANU/SC/0503/1988 : 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."
20. In 'Ramjee Rai and others v. State of Bihar', (2006) 13 SCC 229, it has been opined as follows:
"26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court DLSH010041112019 Page 39 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."
21. Resultantly, no adverse inference can be drawn against the prosecution on account of the inability of the raiding party to join public witnesses. It is not as if no effort was made by them in this regard. They did make efforts at several places but no member of the public agreed to be associated for various reasons.."
77. 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 PW9 SI Devender Singh to join public witnesses in investigation. Moreover, no animosity between the accused persons and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
Discussion on the point of recovery of contraband
78. As per prosecution case, on 18.04.2019, PW2 HC Rakesh Kumar and PW3 Ct. Lokesh were on patrolling duty in the area of PS Jafrabad and at about 9.30 pm, when they reached at Tentwala school, they saw accused standing at Metro pillar no.191, while carrying one white colour plastic katta in his hand and as he was found suspicious, they apprehended him and when they asked him about the contents of plastic katta, accused did not give satisfactory answer. Thereafter, PW2 HC Rakesh Kumar and PW3 Ct. Lokesh opened the katta and it was found containing one transparent polythene having greenish material, which appeared to be Ganja from its smell and physical appearance and thereafter PW2 HC Rakesh Kumar telephonically informed Duty Officer and after some time, PW9 SI Devender alongwith PW7 Ct. Chaman came at the spot and took over custody of accused and recorded statement of PW2 HC Rakesh Kumar Ex.PW2/1. PW9 SI Devender apprised accused about his legal DLSH010041112019 Page 40 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT right and served upon him original notice under section 50 of the NDPS Act Ex.PW2/9. PW9 SI Devender recorded the refusal of accused on the carbon copy of notice Ex.PW2/2. PW9 SI Devender telephonically informed PW10 ACP Dinesh Kumar Sharma about his apprehension and thereafter, PW9 SI Devender weighed the polythene containing Ganja, which was found to be 1965 grams, out of which he took out two samples of 50 grams each and marked the pullandas as Marks S1 and S2, the polythene containing Ganja as Mark A and the pullanda of katta as Mark B and sealed all the parcels with the seal of DS, filled the FSL form, handed over the seal to PW3 Ct. Lokesh after use and prepared seizure-memo Ex.PW2/3. In the meantime, PW10 ACP Dinesh Kumar Sharma arrived at the spot and apprised accused about his legal rights and on his directions PW9 took bodily search of accused, but no further contraband was recovered and he prepared the body search memo Ex.PW2/5. PW9 SI Devender prepared the rukka and handed over the same to PW7 Ct. Chaman alongwith FSL Form, copy of seizure-memo and sealed parcels with directions to hand over the rukka to the Duty Officer and remaining articles to the SHO.
79. In order to prove the recovery, ASI Rakesh Kumar was examined by the prosecution as PW2. The said witness in his examination-in-chief as regards the recovery, testified as under :
"On 18.04.2019 I was posted as HC at PS Jafrabad. On that day at around 7.00 pm, I was on patrolling duty in the area along with Ct. Lokesh. During patrolling at around 9.30 pm, we reached at Tentwala School where we saw one person was standing near the metro pillar no. 191 who was having one white colour plastic katta in his hand. We found him suspicious and we went towards him and he was apprehended by us. We asked him about the material in the said white plastic katta but he did not give any satisfactory reply. We asked his name and he disclosed his name as Shahnawaz., Resident of Mustafabad, the accused is present in the court today (witness has correctly identified the accused).DLSH010041112019 Page 41 of 72 SC 283/2019
STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT Thereafter the said white katta was opened and checked and it was found containing one transparent polythene having green material and while smelling it, it was smelling like ganja and on physical appearance, the same was like ganja. Thereafter I made a call to the duty officer regarding the above mentioned fact and requested the duty officer to send the investigating officer for the present case.
Thereafter on the basis of call ASI Devender along with Ct. Chaman came at the spot and we handed over them the custody of the Shahnawaz as well as white plastic katta containing ganja. SI Devender recorded my statement and the same is Ex.PW2/1 which bears my signature at point A. .....
ACP Bhajanpura was telephonically informed about the apprehension of accused and recovery of contraband by Sl Devender. SI Devender asked some public persons to join the investigation but none agreed to join the investigation without disclosing their names and addresses and also by giving reasonable excuses. No notice could be served upon them due to paucity of time and on seeing the severity of the situation.
Thereafter SI Devender put the katta containing ganja on the electronic weighing machine and the same was measured and it was found to be 1965 grams. In the meantime ACP concerned also came at the spot. Accused was produced with contraband to the ACP. ACP also informed the accused Shahnawaz about his legal right.
SI Devender took out two samples of 50 grams each from the recovered ganja. The same katta was wrapped in the white cloth converted into pullanda and was sealed with the seal of DS by giving mark B. The recovered ganja was kept in a white colour pullanda and sealed with the seal of DS and was given mark A. The aforementioned samples were also converted into pullanda with white cloth and sealed with the seal of DS and were given mark serial number S1 and S2.
Thereafter IO also filled the FSL form at the spot with regard to the above mentioned four pullandas and put the same seal impression. The seal was handed over to Ct. Lokesh after use. Thereafter IO SI Devender seized the aforesaid case property vide seizure memo which is now Ex.PW2/3 which bears my signature at point A. Thereafter IO/ SI Devender prepared the rukka and handed over the original rukka to Ct. Chaman. I0 also handed over the carbon copy of seizure memo, FSL form and the case property to Ct. Chaman with the direction to hand over the rukka to the DO and the remaining things to SHO."
80. PW3 HC Lokesh and PW9 SI Devender Singh also deposed on the same lines in their examination-in-chief and corroborated the testimony of PW2 ASI Rakesh. Thus, three prosecution witnesses i.e. PW2, PW3 & PW9, who are also witnesses to the seizure memo Ex. PW2/3 deposed on the same lines DLSH010041112019 Page 42 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT regarding the recovery of 1.965 Kg of Ganja from the plastic katta being carried by the accused, besides PW7 HC Chaman.
81. The depositions of the aforesaid witnesses regarding the recovery made from the accused, has been challenged by the Ld. Counsel for the accused during the course of arguments. The arguments raised by Ld. Counsel for the accused are discussed herein below.
82. As regards the production of case property and proving that the contraband seized was produced before the Court, Ld. Counsel brought to the attention of the Court the deposition of PW2, specifically, the portion when the case property was produced, to show that as per the details of the case property produced given in his deposition, there is no mention of the fact that the signatures of the accused were obtained on the plastic katta, in which the case property was sealed. He submitted that the signatures of the accused are taken on the seizure memo as well as other documents, but in order to connect the physical case property produced before the Court to the accused, it is essential that the said case property should also bear the signatures of the accused.
It may be pointed out that the case property upon being seized vide seizure memo Ex. PW2/3 was taken to the PS and produced before PW4 Insp. Vivek Tyagi, SHO PS Jafrabad, who checked the four parcels Mark A,B,S1 and S2 and found them to be bearing the seals of DS. He not only affixed his counter seal of STATION HOUSE OFFICER VIVEK TYAGI on the four parcels but also mentioned the FIR number upon all of them and also signed the four parcels. As per the FSL result Ex. AD-1, the parcel Mark S1 was found to be bearing one seal of DS and one seal of STATION HOUSE OFFICER VIVEK TYAGI. Further, when the remaining three parcels were produced before the Court during the deposition of PW2 on 21.05.2024, it DLSH010041112019 Page 43 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT was found that all three parcels Marks A, B and S2 were sealed with the seal of DS and that the particulars of the case were duly mentioned on the said pullandas. Even in the pulanda which was sealed with the seal of FSL (FSL KG DELHI), the polythene was found bearing the case particulars. Therefore, it can be seen that the case property and samples could be duly identified from the particulars mentioned on the katta and the samples, in which they were seized at the spot. There is no requirement to take the signatures of the accused also on the seized contraband. The requirement of law is that the case property should be duly sealed at the spot and additional counter seal need to be placed by SHO when the case property is produced before him, which was done in the present case.
83. Ld. Counsel argued that no record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW9. It could not be proved by the prosecution that the weighing machine used to weigh the contraband at the spot was on that day handed over to PW9 for the purpose of investigation.
On this aspect it may be pointed out that the limited purpose of a weighing machine is to weigh the contraband. It is different from a testing kit, which has chemicals to test the contraband. Even if the IO weighs the contraband on a weighing scale owned by him or arranged by him from any shop, it does not make much difference, as the limited purpose of a weighing machine is to ascertain the weight of the contraband recovered at the spot. It may be argued that the weighing machine needs to be calibrated and therefore should be arranged from the office only, but, in the facts of the present case, where the weight of the contraband is in KGs and not grams, even that does not make much difference. On 18.04.2019, the weight of the contraband at the spot was found to be 1.965 kgs, from which two samples of 50 gms each DLSH010041112019 Page 44 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT were drawn (Mark S1 and S2). The sample Mark S1 was sent to FSL for analysis and as per the report Ex. AD-1, the said sample was found to weigh 50.8 gms with polythene. Thus, there is no difference in the weight of the sample of contraband taken at the spot and as weighed at the time of analysis of the sample at FSL.
In this respect, the Court would like to refer to judgment titled as Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No.250/25 of Hon'ble Apex Court, wherein it was observed by the Hon'ble Apex Court that hyper- technical view should not be taken by the Court while looking into discrepancies like slight difference in weight of the contraband as more often than not an officer in a public place would not be carrying a good scale with him. The relevant portion of judgment is reproduced as under:
"It is for the Courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and 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 difference in 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 of false impression of illegal possession or recovery, or to overstate of 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 seizure, the quality of evidence on record etc."
(emphasis supplied)
84. Ld. Counsel for the accused also submitted that PW9 testified that he prepared the seizure memo before the registration of FIR, but upon perusal of contents of seizure memo Ex. PW2/3, it is found that the FIR number is found mentioned at the top of the seizure memo, which shows that the said seizure memo was prepared after the registration of FIR. Ld. Counsel DLSH010041112019 Page 45 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT submitted that not only in the seizure memo, but also in the notice u/s.50 NDPS Act Ex. PW2/2, there is mention of the FIR number, which fact remains unexplained.
Perusal of the record reveals that the FIR number is mentioned on the seizure memo Ex. PW2/3, which as per the prosecution was prepared before the registration of the FIR. Perusal of the seizure memo would itself show that the said FIR number is mentioned at the top of the seizure memo, but under the DD number (DD No.41B dated 18.04.2019 PS Jafrabad, Delhi). Further, in the carbon copy of the notice (Ex. PW2/2), the FIR number is written with pen and is not a carbon imprint.
It may be noted that the original notice u/s.50 NDPS Act Ex. PW2/9 only bears the DD number and not the FIR number. The FIR number is mentioned on the carbon copy of the notice u/s.50 NDPS Act Ex. PW2/2 and it can be seen that the same is mentioned in blue ink and is not a carbon impression of the original notice, which indicates that the said FIR number was mentioned subsequently as the notice pertains to the case under the said FIR number. However, it is true that the seizure memo Ex. PW2/3 bears both DD number and FIR number at the top, which is indicative of the fact that the FIR number was mentioned on the seizure memo. The question arises that at what stage the FIR number was mentioned or inserted in the seizure memo and this question could have only been answered by PW9 SI Devender Singh. However, neither the said witness mentioned anything about the same in his examination-in-chief, nor he was questioned in this regard in his cross- examination. Resultantly, neither any explanation came forth from IO / PW9, as to how the FIR number finds mentioned on the seizure memo Ex. PW2/3, in the examination-in-chief or in the cross-examination.
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85. In support of the aforesaid argument, Ld. Counsel for the accused relied upon two judgments of Hon'ble Delhi High Court in Prithvi Pal Singh Munna Vs State, 2000 (1) JCC (Delhi) 274 and Giri Raj Vs State, 2000 (83) DLT 201. In both the said cases, it was categorically observed that " the prosecution has not offered any explanation"8, regarding the mentioning of the FIR at the top of the documents which were prepared before the registration of the FIR. In the present case too, PW9 has not clarified either in his examination-in-chief or in his cross-examination that as to how the FIR number finds mentioned on the seizure memo Ex. PW2/3, which as per his deposition as well as the deposition of PW2 & PW3 was prepared before the registration of the FIR. Thus, for the reasons mentioned above, the aforesaid argument of Ld. Counsel is found to have merits.
86. It was further submitted by Ld. Counsel for the accused that seal in the present case after use was handed over by PW9 to PW3 Ct. Lokesh and not to any public person, despite the fact that the place of recovery is a busy road and there are two schools, metro station and DTC bus stop nearby. Tampering of the case property by the police officials after the seizure, cannot be ruled out, as the seal remained in the possession of the members of police team after the alleged seizure of the contraband.
As far as the said argument is concerned, the issue as regards the joining of public witness has been separately discussed and it has been held while discussing the said issue that despite efforts having been made by PW9 SI Devender Singh to join public witness, no public witness joined the proceedings. It may be noted that as per the evidence of PW2, PW3, PW7 and PW9, the seal after use was handed over by PW9 to PW3 and the case property was handed over to PW7 HC Chaman, who immediately left for the 8 Para 10 of Prithvi Pal Singh Munna and Para 5 of Giriraj DLSH010041112019 Page 47 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT PS along with the case property and the rukka. Thus, the case property which was sealed at the spot with the seal of DS by PW9, was taken away from the spot by PW7, whereas the seal remained at the spot in the hands of PW3. As per the rukka Ex. PW2/1, PW7 left the spot along with the rukka at about 12.55 a.m. dated 19.04.2019 and as per the FIR Ex. PW1/1, PW7 brought the rukka to the PS at 1.05 a.m., thereby making it clear that there was not sufficient time or opportunity, besides the motive, with PW7 to tamper with the case property. The seal at that time was left at the spot with PW3 and by the time, this official went back, an additional seal on the case property was placed by PW4 / SHO, which is the seal of STATION HOUSE OFFICER VIVEK TYAGI. Hence, in the opinion of the Court, the handing over of the seal after use by PW9 to PW3, does not create any doubt as regards tampering of the case property by PW7 or by any other member of the police team. Further, as stated earlier, the issue regarding non-joining of public witnesses, has been dealt with separately in this judgment.
87. Ld. Counsel for the accused submitted that PW2 stated that when he checked the contents of the white katta being carried by the accused, he smelled it and found it to be Ganja, but no evidence was produced to show that the said police witness had undergone training w.r.t. the identification of different kinds of contraband.
PW2, being ASI in Delhi Police is an officer of Delhi Police, who must have carried out several investigations himself and before that must have been part of several investigations. Thus, it cannot be said that PW2 was incompetent to tell that the substance found in the katta was Ganja, as there is every possibility that he may have seen and smelled Ganja in a case of NDPS Act, which may have investigated by him or in which he joined the investigation. If the accused wanted to know his training or experience in this DLSH010041112019 Page 48 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT case, then a question to that effect could have been put to that witness during his cross-examination. However, perusal of the cross-examination reveals that no question was put to the witness to ascertain whether the witness had ever been a part of investigation in a matter under NDPS Act prior to this case. The witness was asked as to whether he had undergone special training imparted to smell Ganja, to which the witness said that he had no such training. However, that by itself does not mean that the witness out of experience could not tell from the smell that the recovered substance was Ganja.
88. Ld. Counsel for the accused submitted that PW1 / DO HC Nawab stated that he received intimation regarding apprehension of accused at 9.00 p.m., whereas, as PW2 ASI Rakesh Kumar and PW3 HC Lokesh stated that they apprehended the accused at 9.30 p.m. The said submission of Ld. Counsel is found to be correct. However, it may be noted that the incident pertains to 2019, whereas both the aforesaid witnesses were examined in 2024 and despite that, there is a minor difference of half an hour in the time line described by both the witnesses.
89. Ld. Counsel for the accused submitted that PW9 SI Devender Singh (IO) in his cross-examination stated that he received DD No.41B at 9.55 p.m. and after 10-15 minutes, he left the police station, but as per departure entry no.43, he left PS at 10.02 p.m. The said submission is noted to be rejected for the reason that minor difference of 5-7 minutes in describing the time line during the course of cross-examination does not in any manner adversely affect the case of the prosecution.
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90. Ld. Counsel for the accused submitted that PW2 ASI Rakesh Kumar stated that the place of apprehension of accused was just 5 minutes by foot, whereas PW3 HC Lokesh stated that PS was at distance of 20 minutes by foot. The said submission is found to be factually correct, and together with other infirmities in the evidence of PW2 and PW3, the said contradiction could have created a doubt regarding deposition of witnesses. However, the said contradiction by itself is not sufficient to doubt the veracity of the witnesses, as both the witnesses in their examination-in-chief categorically described the spot, from where the accused was apprehended. Therefore, the aforesaid contradiction regarding the time taken while walking from the spot to the PS, is found to be minor in nature and may be a result of subjective perception of the speed at which, one may walk and the route that one may take.
91. Ld. Counsel for the accused submitted that PW9 SI Devender Singh (IO) admitted in his cross-examination that there was a middle school as well as Senior Secondary school at some distance from the spot, however, in the site plan Ex. PW2/4, the middle school has not been depicted / shown by PW9. It is true that the PW9 admitted in their cross-examination that there were two schools i.e. middle school and senior secondary shool at some distance from the spot, however, merely because one of the schools is not shown in the site plan, does not render the site plan Ex. PW2/4 unreliable. It may be pointed out here that the said site plan has not been prepared in detail by PW9, as a result of which, only two buildings i.e. metro station and Tent Wala School have been shown in the site plan. Though, it is admitted that there were shops and residential area nearby besides a DTC Bus Stop, but the same have not been depicted in the site plan as the same has been cursorily drawn by the IO. A detail site plan is desirable, however, at the same time, merely DLSH010041112019 Page 50 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT because the site plan has not been prepared in detail, does not render the site plan or the corroborative depositions of the recovery witnesses unreliable.
92. Accordingly, in the opinion of the Court, in view of the deposition of PW2, PW3, PW7 & PW9 and in view of the other circumstantial evidence regarding affixing of the counter seal by PW4, deposit of the case property with PW11, registration of FIR by PW1, the prosecution has duly proved the recovery of the contraband from the possession of the accused. The arguments addressed by Ld. Counsel challenging the recovery have been discussed and found to be devoid of merits. Though, the prosecution witnesses were not able to explain that how come the FIR number finds mention on the seizure memo, though, it was prepared before the registration of FIR, but that by itself cannot be a ground to disbelieve the prosecution witnesses. It may be noted at this stage that the prosecution though, required to prove the case against the accused beyond reasonable doubt, is not required to prove the case beyond any fathomable, unrealistic iota of doubt. In the opinion of the Court, there is no reasonable doubt to disbelieve the fact that the recovery of the contraband was made from the accused. Compliance under section 52A NDPS Act
93. Ld. Counsel for accused vehemently argued that as the sampling proceedings in the present case were not conducted by the Magistrate u/s 52A NDPS Act, hence as per judgment of Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No.1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC 379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, 2024 DHC 5099, the trial stand vitiated, and the accused is entitled to acquittal.
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94. 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?
95. 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 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 DLSH010041112019 Page 52 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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."
96. 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 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 DLSH010041112019 Page 53 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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."
97. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif, 2024 INSC 10459, discussed the effect of non-compliance of section 52A NDPS Act on the outcome of trial and summarized the observations in para 39 as under:
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-
section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate 9 Judgment dated 20 December 2024.
DLSH010041112019 Page 54 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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."
98. In a very recent judgment of Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No.250/25, Hon'ble Apex Court answered the question whether non-compliance of section 52A NDPS Act leads to automatic acquittal. This was the only ground on which the conviction upheld by Hon'ble High Court was under challenged before the Apex court. Relevant paras indicating the issue directly before the Hon'ble Court are as under:
"3. The only contention raised before us by the learned counsel appearing for the appellant herein is that the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS Act.
4. The learned counsel appearing for the appellant placed strong reliance on the decision of this Court rendered in the case of Union of India v. Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good his submission that non- compliance of Section 52A of the NDPS Act along with the relevant rules, would vitiate the entire trial and the conviction."
99. Hon'ble Apex Court discussed at length Mohan Lal (supra), Yusuf @ Asif (supra) and several other judgments and discussed the outcome thereof in the following paras:
"24.What is discernible from the various decisions referred to by us, is that mere non- compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not by itself render the trial vitiated or into an automatic acquittal. In all instances where this Court set-aside the order of conviction, it did so not solely for the reason that there was a violation of Section 52A but because of and on the strength of the other discrepancies or shortcomings in the prosecution's case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done.DLSH010041112019 Page 55 of 72 SC 283/2019
STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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- 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 DLSH010041112019 Page 56 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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 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 DLSH010041112019 Page 57 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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 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.
100. 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.
DLSH010041112019 Page 58 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT (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 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 DLSH010041112019 Page 59 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt." (emphasis supplied)
101. 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 of proof required would be beyond a reasonable doubt.
102. As per FSL report Ex. AD-1 (admitted by the accused on 29.10.2024), parcel Mark S1 was found bearing one seal of DS, one seal of VIVEK TYAGI STATION HOUSE OFFICER. Thus, as per the FSL result Ex. AD-1, the sample of the case property (one pulanda) which was sealed at the spot with the seal of DS and was counter sealed by SHO / PW4 Insp. Vivek Tyagi with his seal of VIVEK TYAGI STATION HOUSE OFFICER, was received in the same condition with all the seals intact in the FSL on 27.07.2017.
103. It may be noted that the case property in original as primary evidence was produced during the testimony of PW2 and opened in the Court. The sample Mark S1 was found to be bearing the seal of FSL KG DELHI, whereas Parcels Marks A,B and S2 were found bearing the seals of DS. The observation of the Court at the time of opening the case property during the testimony of PW2 is relevant to ascertain as to whether the case property was produced before the Court duly sealed with the seal of DS and STATION HOUSE OFFICER VIVEK TYAGI, so that inference may be drawn that the case property remained intact throughout the proceedings till the time the sample was analysed by the FSL and the remaining sample and contraband in DLSH010041112019 Page 60 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT pulanda / Parcels Mark A, B and S2 were opened in the Court. The said portion of the testimony is reproduced as under:
"At this stage, MHCM has produced one white cloth pullanda having mark B bearing the particulars of the case and duly sealed with the seal of DS. Seal is intact. Seal is broken in the court today with the permission of the court and the pullanda is opened and it is found containing one plastic katta and the same is shown to the witness. Witness correctly identified the same and stated it is the same plastic katta in which the contraband i.e. ganja was found and was recovered from the possession of accused. The same is Ex. P-2.
At this stage, MCM has produced one white cloth pullanda having mark S2 bearing the particulars of the case and duly sealed with the seal of DS. Seal is intact. Seal is broken in the court today with the permission of the court and the pullanda is opened and it is found containing one transparent white polythene and in the said white polythene, the green dried material along with stems, leaves, seeds are found and the same is shown to the witness. Witness correctly identified the same and stated it is the same contraband i.e. ganja which was recovered from the possession of accused. The same is Ex. P-3.
At this stage, MHCM has produced one white cloth pullanda having mark A bearing the particulars of the case and duly sealed with the seal of DS. Seal is intact. Seal is broken in the court today with the permission of the court and the pullanda is opened and it is found containing one transparent white polythene and in the said white polythene, the green dried material along with stems, leaves, seeds are found and the same is shown to the witness. Witness correctly identified the same and stated it is the same contraband i.e. ganja which was recovered from the possession of accused. The same is Ex. P-4.
At this stage, MHCM has produced the case property i.e. one yellow envelope bearing the details of the present case parcel S1 duly sealed with the seal of FSL KG DELHI. The seals are duly intact. Envelope is opened by breaking the seals with the permission of the court and it is found containing one white colour pullanda duly sealed with the seal of DS having mark S1 with details of present case and after opening the same one transparent white polythene and in the said white polythene, the green dried material along with stems, leaves, seeds are found and the same is shown to the witness. Witness correctly identified the same and stated it is the same contraband i.e. ganja which was recovered from the possession of accused. The same is Ex.P-5." (emphasis supplied)
104. The question before the Court is whether the production of the four parcels sealed with the seal of DS only during the deposition of PW2 on 21.05.2024 is valid production of the case property as primary evidence?
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105. The answer to the said question is clearly in the negative. The prosecution miserably failed to prove the recovery of the contraband in four pulandas from the accused by producing the recovered substance/contraband as primary evidence for the following reasons:
i) As the recovered contraband was produced for the first time before the court on 21.05.2024 during the deposition of PW2 and all the four parcels were found to be bearing only the seal of DS (it may be noted that parcel Ex.
P5 was sealed with the seal of FSL KG DELHI, however, the pullanda inside was found bearing seal of DS only). Thus, the case property produced before the court was not in the same condition in which it was seized at the spot. No photographs or video of the recovered contraband were taken at the spot and as such there is nothing to establish that the case property which was seized at the spot was in the condition and of the quantity as mentioned in the seizure memo. The contents of the seizure memo though corroborated by the testimonies of prosecution witnesses, could not be corroborated and thereby proved by producing the primary evidence i.e. by producing the recovered substance itself in the same form in which it was seized at the spot.
ii) That in register no.19 Ex. PW11/A, the case property was deposited by PW4 / SHO, but in the description of the property, there is no mention of the seal of STATION HOUSE OFFICER VIVEK TYAGI. It may be for the reason that in the description of the property, the MHCM reproduced the contents of seizure memo, but it assumes significance in the fact of the present case, because when the case property was produced before the Court on 21.05.2024 during the deposition of PW2, none of the parcels were found bearing the seal of STATION HOUSE OFFICER VIVEK TYAGI.
106. Thus, having failed to produce the case property in the same state in which it was seized at the spot, the prosecution also failed to explain as to why the DLSH010041112019 Page 62 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT case property was not subjected to proceedings under section 52A NDPS Act when the same was seized on 18.04.2019.
107. The failure to get the sampling proceedings conducted and subsequent failure to keep the property in safe custody and produce the same in the same form & shape in which it was seized at the spot, has gone to the root of the case and has ultimately resulted in the failure of the production of the recovered case property as primary evidence to prove the recovery.
108. At this stage the court would like to refer to judgment of Mohanlal (supra) wherein the Hon'ble Apex Court took up the issue of safe keeping of the recovered contraband. The relevant paras of the said judgment are already reproduced above. After reading of the said judgment, it can be said that the present case is a classic textbook example of the situation that the Hon'ble Apex Court was referring to and rectify in the said case.
109. 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.
Compliance u/s.55 of NDPS Act
110. As per the prosecution case, PW9 SI Devender Singh, the IO of the case after the recovery was affected from the possession of the accused, seized the same vide seizure memo Ex.PW2/3. In total one packet/katta of ganja was recovered from the accused weighing 1.965 kg. Two samples of 50 gms each were taken out and put in two separate polythenes and were sealed. The samples were given Mark S1 and A2 and polythene was given Mark A and plastic katta was seized in Pulanda Mark B. All the four pulandas were sealed with the seal of DS and seized vide seizure memo Ex. PW2/3. The rukka as well as the case property and copy of seizure memo was handed over to PW7 DLSH010041112019 Page 63 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT Ct. Chaman, who took the same to the police station and handed over the three pullandas to the SHO / PW4 Insp. Vivek Tyagi.
111. PW4 Inspector Vivek Tyagi, SHO, upon receiving the copy of seizure-memo and four parcels, checked the parcels and found them to be sealed with the seal of DS and placed his counter seal of STATION HOUSE OFFICER VIVEK TYAGI on all the pullandas and FSL Form. After confirming the FIR number from the Duty Officer, PW1 HC Nawab, he mentioned the same on the pullandas/parcels, FSL Form and copy of seizure-memo.
112. PW4 Inspector Vivek Tyagi thereafter, handed over the sealed parcel and copy of seizure-memo to MHCM ASI Satish Kumar (PW11), who deposited the said parcels in Malkhana and made entry in this regard at serial no.2174/19 in register no.19 Ex.PW11/A, which was also countersigned by the SHO/PW4.
113. Thus, PW4 upon receiving the sealed parcel duly affixed his counter-seal of STATION HOUSE OFFICER VIVEK TYAGI on the said pullandas already bearing the seal of DS. The deposition of PW4 in this regard is as under : -
"On 18.04.2019/19.04.2019, I was posted as SHO Jafrabad and was on duty. On that day, the present case was registered in the PS and the rukka was sent for this purpose by the IO/SI Devender. In the meantime, Constable Chaman appeared before me alongwith four sealed pulandas duly sealed with the seal of DS, carbon copy of seizure memo and FSL Form for compliance under Section 55 of the NDPS Act. I checked all the pulandas, carbon copy of seizure memo and FSL Form containing sample seal of DS and tallied the details and thereafter the same were counter-sealed with my seal i.e. Station House Officer Vivek Tyagi. I put the FIR no. and other details on all of the same and the same were counter-signed by me. After that I called the MHCM in my office alongwith register no. 19 and with regard to the abovesaid proceedings the necessary entry was made in the register no. 19 and the same was counter-signed by me after the entry was made by the MHCM."
114. Except suggestions, which the witness denied, nothing material is found in the cross-examination of this witness to doubt the aforesaid deposition regarding compliance of Section 55 NDPS Act.
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115. From the examination in chief and cross-examination of this witness it is seen that this witness duly complied with the provisions of section 55 NDPS Act by placing his counter-seal on the case property and thereafter depositing the same with MHCM PW11 ASI Satish. The testimony of this witness is further corroborated by entry made by him in Register No.19 Ex.11/A, which is signed by this witness.
116. Further, sample S1 was deposited with FSL on 26.04.2019 and was examined by Ms. Kavita Goyal, Assistant Director (Chemistry) FSL Rohini from 22.05.2019 to 29.05.2019. As per the FSL result dated 29.05.2019 Ex. AD-1, the parcel Mark S1 was found bearing one seal of DS and one seal of STATION HOUSE OFFICER VIVEK TYAGI, which tallied with the sample seals. Upon opening the parcels, it was found containing dried greenish brown coloured flowering and fruiting vegetative material, kept in a polythene, weighing 50.8 gms with polythene. Thus, the seals of DS placed on the sample Mark S1 by PW9 and the counter-seal of STATION HOUSE OFFICER VIVEK TYAGI placed by PW4 were found intact, when the sample was examined at FSL.
117. However, when the case property was produced before the Court during the deposition of PW2 ASI Rakesh Kumar, the parcel Mark A, B and sample Mark S2 were found bearing the seals of DS only. The seal of STATION HOUSE OFFICER VIVEK TYAGI was found missing not only on the said three pullandas, but also on the torn pullanda which was found in the parcel received from FSL bearing the seal of FSL KG DELHI.
118. Accordingly, in the opinion of the court the provisions of section 55 NDPS Act have not been duly complied with in the present case, but the case property was not safely kept thereafter, as a result of which, the seal of SHO got damaged by the time the case property was produced in Court in 2024.
DLSH010041112019 Page 65 of 72 SC 283/2019STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT Discussion on compliance u/s. 57 of NDPS Act
119. Section 57 of NDPS Act is reproduced as under:
"57. Report of arrest and seizure.--
Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
120. As per the charge sheet, report regarding recovery of the contraband and arrest of accused under section 57 NDPS Act was prepared by PW9 SI Devender Singh. PW9 submitted the said report Ex. PW8/B to PW4 Insp. Vivek Tyagi, who forwarded it to PW10 / ACP Dinesh Kumar, Sub-Division, Bhajanpura. The report purportedly bears the signatures of PW4, PW9 and PW10.
121. PW8, Reader to ACP, Bhajanpura Sub-Division, also testified that on 29.10.2024, report u/s.57 prepared by PW9 SI Devender was received in the office of ACP Office, Bhajanpura, vide Diary No.1806 dated 19.04.2019 and the same was seen and signed by the ACP.
122. Thus, w.r.t. the recovery made on 18.04.2019 and arrest made on 19.04.2019, report u/s.57 NDPS Act was prepared by PW9, who duly placed it before immediate official superior i.e. SHO, PS Jafrabad on 19.04.2019 and even higher gazetted official i.e. ACP / PW10 on 19.04.2019. Perusal of report indicates that the name, parentage and address of the accused, place, time and quantity of recovery etc. were duly communicated to senior police officials upto the rank of ACP within a period of 48 hours of the recovery, as per the requirement of Section 57 NDPS Act.
123. Though, it is true that PW4 / SHO Insp. Vivek Tyagi did not mention in his deposition that the said report was forwarded by him. However, the said report Ex. PW8/B was duly received at the office of ACP and also bears the signatures of ACP / PW10.
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124. In the opinion of the court, even in absence of PW4 regarding having forwarded the report u/s.57 NDPS Act Ex. PW8/A, the fact that the said report was prepared by PW-9 SI Devender Singh, as regards recovery and arrest, mentioning all necessary particulars and forwarded to PW4 (SHO) and to PW10 (ACP), who signed the said report on 19.04.2019 at point A, amounts to sufficient compliance of section 57 NDPS Act.
125. At this juncture the court would like to refer to two decisions of Hon'ble Apex Court in this aspect. In Sajan Abraham vs. State of Kerala10 MANU/SC/0424/2001 Hon'ble Apex Court held as under:
12. The last submission for the appellant is, there is non-compliance of Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, that has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that PW 5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ex.
P9 shows that the copies of the FIR along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by PW 5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW 5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of section 57 of the Act.
(emphasis supplied)
126. In State of Punjab vs. Balbir Singh , 1994(1) RCR Criminal 737 , Hon'ble Apex Court held:
"The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest of seizure under Section 41 to 44 are by themselves not mandatory."10
Three Judges Bench of Hon'ble Apex Court.
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127. Accordingly in the opinion of the court the provisions of section 57 were substantially complied with by the investigating agency in the facts of the present case.
Whether recovered substance is Ganja?
128. The case of the prosecution is that the substance, which was recovered from the possessions of the accused is Ganja.
129. In order to prove this fact, the prosecution relied upon FSL result dated 29.05.2019 Ex. AD-1. The said report has been admitted by the accused and from the report, it is clear that the sample Mark S1 was found containing dried greenish brown coloured flowering and fruiting vegetative material, weighing about 50.8 gms and upon physical, microscopic, chemical and TLC Examination, the same was found to be cannabis by expert examiner Ms. Kavita Goyal, Asstt. Director (Chemistry).
130. Thus, in view of the aforesaid unchallenged FSL result Ex. AD-1, it stands proved that the sample Mark S1, which was sent to FSL upon examination was found to contain Ganja.
Videography and Photography not done during the proceedings
131. It was also submitted that the proceedings were not videographed or photographed, which raises a doubt as to whether the proceedings took place or not in the manner as pointed out by the prosecution.
132. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2019.
133. 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?
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134. As per the aforementioned judgments, though it is preferable that videography or photography be conducted during the course of investigation, however, it is not a sine qua non in a case of recovery of contraband under the NDPS Act.
135. The videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
136. It may be noted that the police officials are generally hesitant to take photographs and videos using their personal mobile phone, as they fear that their personal phones may not be seized as primary evidence in the case. Recently, Hon'ble Punjab and Haryana High Court in Ashok Kumar Vs. State of Haryana, CRM (M) No.14560/202511 order dated 21.03.2025 reprimanded the police officials for not seizing the mobile phones in which recordings were made. Said order is reproduced as under:
"Learned counsel for the petitioner contends that in the present case, the alleged recording was made in the mobile phone, owned by Ajay Kumar, however, the police has neither taken the said mobile phone in possession nor has been sent to the FSL.
Learned State counsel submits that the statement made by learned counsel for the petitioner is correct and the mobile phone has not been taken into possession by the police.
It is shocking to know that the primary evidence in the present case has not been taken into possession by the police, till date, whereas, the FIR in the present case was registered on 31.12.2024. It also shows that the investigation in the present case is being conducted by the police in a very casual manner and without following the procedure established by the law. It appears that there was no monitoring of investigation by Senior Police Officers."
137. The police officials are thus hesitant even today to take photographs and videos on personal mobile phones, though, the said situation has been to some extent rectified by the introduction of e-sakshya recently.
11Also reported on several news portals: https://www.tribuneindia.com/news/chandigarh/high-court-pulls-up- senior-cops-for-acting-like-court-of-law/ DLSH010041112019 Page 69 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT
138. Accordingly, the absence of videography and photography at the spot during recovery proceedings conducted in 2019, or absence of the CCTV footage, is not by itself fatal to the prosecution case.
Presumption
139. Established jurisprudence dictates that, once possession is demonstrated, the burden of proof shifts to the individual asserting a lack of conscious possession or awareness of concealment. Section 35 of the Act codifies this principle through a statutory presumption in law. Similarly, Section 54 permits a presumption arising from the possession of illicit items. It is incumbent upon the accused to substantiate his claim of either unawareness or absence of conscious possession of contraband. Hon'ble Apex Court in Mohan Lal Vs. State of Rajasthan Crl. (2015) 6 SCC 222 dealt with this aspect in detail and held as under:
12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession DLSH010041112019 Page 70 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT 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 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."
140. 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 DLSH010041112019 Page 71 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
141. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Haryana (2002) 8 SCC 372, discussed the approach the court should take when analyzing the evidence, as under:
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt"
142. Upon reviewing the evidence, particularly the failure of the Investigating Agency of subjecting the recovered contraband (ganja) to sampling proceedings under section 52A NDPS Act and failure of prosecution to produce the recovered substance in its intact form as it was recovered and sealed at the spot and counter sealed by SHO, the prosecution has failed to prove the foundational facts against the accused beyond reasonable doubt. The presumption under sections 35 and 54 of the NDPS Act cannot be raised in this case against the accused, as the recovery of contraband could not be established beyond reasonable doubt.
Conclusion
143. The prosecution failed to prove beyond reasonable doubt that the accused was found in possession of 1.965 kg of contraband, i.e. intermediate quantity of DLSH010041112019 Page 72 of 72 SC 283/2019 STATE Vs. MOHD SHAHNAWAZ FIR No.201/2019 (Jafrabad) U/s.20 (b)(ii)(B) NDPS ACT Ganja (being more than 1 kg). This is due to the fact that the recovered substance seized at the spot could not be presented/produced in an intact form before the Court as primary evidence. Additionally, the seized contraband/ganja was not subjected to proceedings under section 52A of the NDPS Act. As the recovery of the contraband could not be established beyond reasonable doubt, 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 / ganja without any authority or license to be in possession of the same.
Order
144. Accordingly, accused Mohd. Shahnawaz is acquitted of the offences punishable under Section 20(B)(ii)(b) of the NDPS Act.
145. Accused is directed to furnish personal bond under section 437A Cr.P.C. in sum of Rs.20,000/- and furnish one surety of equal amount each within one week from today.
146. File be consigned to record room after due compliance.
Announced in the open Court on 20th day of May 2025 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi SAURABH Digitally SAURABH signed by PARTAP SAURABH SINGH PARTAP LALER SINGH LALER Digitally signed PARTAP by SAURABH SINGH PARTAP SINGH LALER LALER