Delhi District Court
State vs Rahul on 9 March, 2026
DLSH010012732022 Page 1 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Rahul, S/o Sh. Satish Kumar, R/o B-69, Gali No.5, East Nathu Colony, Mansarovar Park, Shahdara, Delhi. ....accused (represented by Sh. Amit Kuumar, Advocate) Date of institution : 24.02.2022 Date when Judgment reserved : 13.02.2026 Date of Judgment : 09.03.2026 Final Decision : Acquitted DLSH010012732022 Page 2 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 17.08.2021 at Gali No.5, East Nathu Colony, near Railway Line, Delhi, accused was apprehended on the basis of a secret information received at about 12:30 pm that he was selling illegal smack and upon cursory search after serving notice U/s 50 NDPS Act, six small paper pudiyas and one polythene were recovered from right side pocket of wearing half pant ( nikkar) of accused. Upon checking the said six pudiyas were found containing 01 gram of smack (heroin)/ brown colour powder and the said polythene was found containing 21 grams of smack (heroin)/ dark brown colour wet powder. On the basis of which, the present FIR was registered U/s 21 NDPS Act. The contraband was seized accused was arrested. The sampling of the contraband U/s 52A NDPS Act was done and sent to FSL. FSL report dated 24.02.2022 has been received wherein it is mentioned that the samples are containing Diacetylmorphine, Codeine, Morphine, Acetylcodeine, Monoacetylmorphine, Trimethoprim & Papaverine.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 24.02.2022 charge-sheet was filed against accused Rahul U/s 21 NDPS Act.
CHARGE
3. On 14.07.2023, charge U/s 21(b) NDPS Act was framed against DLSH010012732022 Page 3 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act accused Rahul. It is to be noted that inadvertently in the order on charge dated 14.07.2023 it is mentioned that prima facie charge U/s 20(b) NDPS Act is made out against accused Rahul.
PROSECUTION EVIDENCE
4. To substantiate the aforementioned charges, the prosecution presented 13 witnesses. The details of these witnesses, alongwith the documents they presented during their testimonies, are listed below in tabular form:
PW number Brief role of Documents Description
and name of witness exhibited
witness
PW-1 ACP Secret informer Ex. PW-1/A DD No. 4 regarding secret information and
Rakesh produced before in compliance of Section 42 NDPS Act,
Rawat (the him in his office which was forwarded by him.
then by ASI Ex. PW-1/B DD No. 5A vide which ASI Lokender had
Inspector Lokender. He constituted a raiding party and left the
posted as also verified the office of Narcotic Cell.
Incharge of secret
AATS and information Ex. PW-1/C DD No. 6A vide which second IO was
Narcotics, from secret deputed for further investigation.
District informer. Ex. PW-1/D Information given by ASI Lokender qua
Shahdara) recovery of illegal heroin in compliance of
Section 57 NDPS Act and he forwarded the
same to ACP.
Ex. PW-1/E Information given by ASI Vishesh Pal qua
arrest and personal search of accused in
compliance of Section 57 NDPS Act and he
forwarded the same to ACP.
PW-2 IO who
Inspector prepared charge-
Yogesh sheet and filed
Kumar in the Court. He
DLSH010012732022 Page 4 of 58
SC No. 48/2022
STATE Vs. RAHUL
FIR No. 275/2021
(Mansarovar Park)
U/s 21(b) NDPS Act
had also filed
supplementary
charge-sheet
after obtaining
the report from
FSL.
PW-3 HC Duty Officer Ex. PW-3/1 Copy of FIR.
Dinesh Rana Ex. PW-3/2 Endorsement on the rukka.
Ex. PW-3/3 Certificate U/s 65-B of Indian Evidence
Act.
Ex. PW-3/4 GD No. 107A regarding registration of FIR.
PW-4 HC Member of Ex. PW-4/1 Carbon copy of notice U/s 50 NDPS Act.
Lalit raiding party Ex. PW-4/2 Rukka.
and one of the
recovery Ex. PW-4/3 Arrest memo of accused.
witness. Ex. PW-4/4 Seizure memo of case property.
Ex. PW-4/5 Seal handing over memo vide which seal
after use was handed over to Ct. Devender.
Ex. PW-4/6 Personal search memo of accused.
Ex. P-1 & Ex. Remnants of contraband received back from P-2 FSL.
Ex. P-3 Contraband recovered from the accused.
Ex. P-4 Original notice U/s 50 NDPS Act addressed to accused.
Ex. P-5 Rs. 430/- recovered from personal search of accused.
PW-5 ASI He received Ex. PW-5/1 Site plan prepared at his instance.
Lokender secret
information,
constituted
raiding party
including
himself as per
directions. He
apprehended the
accused, served
DLSH010012732022 Page 5 of 58
SC No. 48/2022
STATE Vs. RAHUL
FIR No. 275/2021
(Mansarovar Park)
U/s 21(b) NDPS Act
notice U/s 50
NDPS Act on
the accused,
informed the
ACP, recovered
contraband,
drawn sample,
sealed and
seized the case
property,
prepared rukka.
He also
prepared report
U/s 57 NDPS
Act qua
recovery of
contraband.
PW-6 SHO, P.S. Ex. PW-6/A Entry by MHC(M) qua case property and
Inspector Mansarovar documents in register no. 19
Prashant Park who Ex. PW-6/B GD No. 121A regarding information about
Yadav conducted deposition of case property, samples and
proceedings U/s documents in this case U/s 55 NDPS Act
55 NDPS Act.
PW-7 ASI Reader to ACP, Ex. PW-7/A & Reports U/s 57 NDPS Act and Rajeev Operation Cell, Ex. PW-7/B corresponding entries regarding the same in Saxena Shahdara Diary Register at serial nos. 94 & 95, District. respectively.
Ex. PW-7/C Copy of diary register containing entries in his writing at serial nos. 94 & 95.
Mark X1 Entry at serial no. 93 in Ex. PW-7/C with
respect to information U/s 42 NDPS Act by
ASI Lokender.
PW-8 ASI MHC(M) Ex. PW-8/A Entry no. 1865 in register no.19 regarding
Sanjay (OSR) deposit of personal search articles of
Kumar accused
Ex. PW-8/B Copy of RC No. 67/21/21 qua handing over (OSR) of one sealed parcel to ASI Vishesh Pal for sampling U/s 52A NDPS Act.
DLSH010012732022 Page 6 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Ex. PW-8/C Copy of RC No. 73/21/21 qua handing over (OSR) of one sealed parcel with the seal of 'DR' alongwith sample seal of 'DR' to ASI Vishesh Pal for depositing the same in FSL.
Ex. PW-8/D Acknowledgment of FSL (OSR) PW-9 ASI IO who arrested Ex. PW-9/A Disclosure statement of accused.
Vishesh Pal accused,
Singh recovered
original notice
U/s 50 NDPS
Act in personal
search of
accused,
recorded his
disclosure
statement,
prepared site
plan, prepared
report U/s 57
NDPS Act and
moved
application for
conducting
proceedings U/s
52A NDPS.
PW-10 Ct. Member of Ex. PW-10/A Print out of 18 photographs of the sampling
(now HC) raiding party (Colly) proceedings taken during proceedings U/s
Devender and one of the (marked as A- 52A NDPS Act.
recovery 1 to A-18)
witness. Ex. PW-10/B Certificate U/s 65-B of Indian Evidence
Act.
PW-11 SI On request of
(now SHO Inspector
Inspector) Prashant Yadav,
Nitu Kumar P.S. Mansarovar
Park, he handed
over his seal
'NK' on
DLSH010012732022 Page 7 of 58
SC No. 48/2022
STATE Vs. RAHUL
FIR No. 275/2021
(Mansarovar Park)
U/s 21(b) NDPS Act
17.08.2021 at
about 8:30 pm
to Inspector
Prashant Yadav
to counter-seal
the parcel
pertaining to the
present case in
compliance of
Section 55
NDPS Act.
PW-12 Deposed qua Mark-X1 Copy of DD No.4 pertaining to the secret
retired ACP receipt of DD information.
Sushil Tyagi No. 4 as well as
receipt of two
special reports
U/s 57 NDPS
Act. He also
reached the spot
on 17.08.2021
after
apprehension of
accused.
PW-13 Dr. Expert witness Ex. PW-13/A His detailed report dated 24.02.2022.
Kavita from FSL
Goyal,
Assistant
Director
(Chemistry)
Admitted documents Ex. AD-1 Proceedings U/s 52A NDPS Act conducted
(Admitted on 04.06.2025 by Ld. MM on 25.08.2021.
U/s 330 BNSS/ 294
Cr.P.C.)
After examining the depositions of the witnesses mentioned in the table above, it is found that they gave evidence about the undermentioned facts for the prosecution:-
DLSH010012732022 Page 8 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act
5. PW-1 ACP Rakesh Rawat deposed that on 17.08.2021 he was posted as Inspector AATS and Narcotics, District Shahdara. On that day, ASI Lokender had produced one secret informer in above-mentioned office of this witness and ASI Lokender told him that the said secret informer had some information regarding the selling of drugs at East Nathu Colony, near Railway Line, M.S. Park by one person namely Rahul and he was having contraband. He can be apprehended, if raided. This witness got verified the said fact of the secret information from the said informer. This witness gave the said information to ACP Operation, Shahdara and he directed this witness to take action, as per law. Thereafter, this witness instructed ASI Lokender to take the action, as per law. ASI Lokender lodged DD No. 4 regarding the said information and in compliance of Section 42 NDPS Act. Thereafter, this witness forwarded the said DD Entry which is Ex. PW-1/A bearing his signature at Point-A. ASI Lokender had constituted a raiding party and left the office of Narcotics Cell, Shahdara vide DD No. 5A which is Ex. PW-1/B bearing signature of this witness at Point-A. On the same day in evening, this witness received a telephonically message from ASI Lokender and he informed this witness that he had apprehended the accused with contraband and the FIR has been registered at P.S. M.S. Park. The second IO was deputed for further investigation of the case vide DD No. 6A which is Ex. PW-1/C bearing signature of this witness at Point-A. It is stated by him that on the next day i.e. 18.08.2021 ASI Lokender gave information to this witness regarding the recovery of illegal DLSH010012732022 Page 9 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act heroin in compliance of Section 57 NDPS Act and this witness forwarded the same to ACP which is Ex. PW-1/D bearing his signature at Point-A. It is stated by him that ASI Vishesh Pal gave information to this witness regarding the arrest and personal search of accused Rahul in compliance of Section 57 NDPS Act and this witness forwarded the same to ACP which is Ex. PW-1/E bearing his signature at Point-A.
6. PW-2 Inspector Yogesh Kumar deposed that on 10.09.2021 he was posted as Sub-Inspector at Narcotics Cell, District Shahdara. On that day, the present case was handed over to him for further investigation. After going through the file, he prepared the charge-sheet and filed in the Court. He had also filed supplementary charge-sheet after obtaining the report from FSL.
7. PW-3 HC Dinesh Rana deposed that on 17.08.2021, he was posted at P.S. M.S. Park as HC and was working as Duty Officer from 4:00 pm to 12:00 midnight. At about 8:05 pm Ct. Lalit brought the rukka sent by ASI Lokender, contents of which were dictated by this witness to the Computer Operator and the FIR was registered bearing FIR No. 275/2021 and computerized copy of FIR was obtained. At around 8:28 pm this witness had handed over the copy of FIR and the original rukka to Ct. Lalit to hand over the same to the IO ASI Vishesh Pal as investigation was marked to him. The copy of FIR is Ex. PW-3/1 bearing signature of this witness at Point-A (OSR). This witness had made endorsement on the rukka and the same is Ex. PW-3/2 bearing his signature at Point-A. In this regard, the certificate U/s 65-B of the DLSH010012732022 Page 10 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Evidence Act is Ex. PW-3/3 bearing signature of this witness at Point-A. Copy of GD No. 107A regarding registration of FIR is Ex. PW-3/4.
8. PW-4 HC Lalit deposed that on 17.08.2021 he was posted as Constable at Narcotics Cell, Shahdara District. On that day, he was present in Narcotics Cell of Shahdara District, at around 12:30 pm, ASI Lokender told to this witness, ASI Sukhbir, Ct. Devender that he has received an information from the secret informer that one boy would meet in Gali No. 5, East Nathu Colony, where he would be selling smack and directed them to be ready to conduct the raid as he (ASI Lokender) further told that he is going to inform the senior officer and for taking the approval for the same.
It is stated by him that after five minutes, raiding team was constituted by ASI Lokender consisting of this witness, ASI Sukhbir, Ct. Devender and the secret informer. This witness alongwith raiding team reached East Nathu Colony, Gali No. 5 by private vehicle Swift Dzire belonging to ASI Lokender. When they reached East Nathu Colony, Gali No. 5 secret informer further told to move ahead a little bit towards Railway Line where the said boy could be found. ASI Lokender asked 3-4 public persons to join the investigation, but none agreed to join the investigation by stating that they do not have time to be involved in the police matters.
It is stated by him that secret informer pointed out towards a boy who was coming from the side of Railway Line towards Gali No.5 that he was the boy who is indulged in selling the smack. Thereafter, the secret informer left the spot. They surrounded the said boy who told his name as Rahul and ASI DLSH010012732022 Page 11 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Lokender told him that he was selling illegal smack. ASI Lokender introduced himself and the raiding team and told to accused that he was carrying and selling smack and that it was his legal right to get himself searched in the presence of any Gazetted Officer or the Magistrate. However, accused refused to get searched in the presence of any Gazetted Officer or the Magistrate. In the meantime, ASI Lokender telephonically informed the ACP. After half an hour of the call, ACP also reached the spot. ASI Lokender again apprised the accused if he wants to get searched in the presence of any Gazetted Officer it can be done as their ACP is also available at the spot. The accused refused/ denied to get conduct his search or the search of raiding team offered to him for search by admitting that he is having smack and he does not want either to search the raiding team or to get himself searched before the ACP. Notice U/s 50 NDPS Act was also served to the accused by ASI Lokender. The carbon copy of the notice is Ex. PW-4/1 which bears signature of this witness at Point-A. The denial of the accused is marked 'X to X1' which is in the handwriting of ASI Lokender and bears signature of this witness at Point-A1. The said denial was written by ASI Lokender as the accused stated that he was less educated and did not know how to write. Accused also put his signatures at Point S and S1, respectively on the said notice.
Thereafter, accused was searched by ASI Lokender and six paper pouches and one plastic pouch containing some wet substance were found from the right side of his half pant wearing. Thereafter, ASI Lokender directed Ct. Devender to bring the IO kit as well as sample kit from his car. ASI Lokender poured and mixed all the six pouches on one polythene and he took out two DLSH010012732022 Page 12 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act samples of few quantity from the mixer in the polythene. ASI Lokender checked both the samples on the sample kit and found the same to be smack. ASI Lokender weighed the wet substance as well as the mixture on the weighing machine and found wet substance to be 21 grams with polythene and mixture found to be 01 gram. Both the polythenes containing wet substance and the mixture were kept in one plastic transparent jar wrapped with the help of doctor tape and converted into pullanda and was sealed with the seal of LS.
Thereafter, IO prepared the rukka which is Ex. PW-4/2. At around 7:15 pm, IO handed over the original rukka to this witness. IO also handed over the carbon copy of notice U/s 50 NDPS Act and the case property to this wintess with the direction to hand over the rukka to the DO and the remaining things to SHO.
This witness handed over the original rukka to the DO of P.S. M.S. Park for registration of FIR and asked him to wait for some time. DO took this witness to the SHO room. This witness handed over carbon copy of notice U/s 50 NDPS Act and the case property to SHO and informed him that the same has been sent by ASI Lokender.
It is stated by him that DO handed over to him the original rukka and copy of FIR and asked him to hand over the same to the IO at the spot. This witness again reached the spot and handed over the copy of FIR and original rukka to the second IO ASI Vishesh Pal as he was already been called by the first IO.
It is stated by him that second IO ASI Vishesh arrested the accused vide arrest memo Ex. PW-4/3. IO seized the case property vide seizure memo DLSH010012732022 Page 13 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Ex. PW-4/4 which bears signature of this witness at Point-A. Seal after use was handed over to Ct. Devender vide seal handing memo Ex. PW-4/5 which bears signature of this witness at Point-A. The personal search of the accused was also conducted by ASI Lokender and one original notice U/s 50 NDPS Act and Rs. 430/- were found in his personal search. The personal search memo of the accused is Ex. PW-4/6. Thereafter, all the raiding team with accused returned back to P.S. M.S. Park.
It is stated by him that his statement was recorded by the IO on the next day at Narcotics Cell after producing the accused before the Court concerned.
The identity of the accused is not disputed by Ld. Defence Counsel. MHC(M) produced two yellow envelopes having Mark A and B and details of the present case having the seal of FSL KG DELHI. The seals are duly intact. Mark-A was opened with the permission of the Court and found containing one plastic jar which was wrapped with doctor tape, but the seal was broken. One plastic polythene was taken out on which FSL/DLH/ 8572/C/2852/21(A) was written by blue colour ink. The said polythene contained brown colour powder substance and same was shown to the witness. The witness has correctly identified the same as the remaining contraband. The same is Ex. P-1.
Mark-B was opened with the permission of the Court and found containing one plastic jar which was wrapped with doctor tape, but the seal was broken. One plastic polythene was taken out on which FSL/DLH/ 8572/C/2852/21(B) was written by blue colour ink. The said polythene DLSH010012732022 Page 14 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act contained brown colour powder substance and same was shown to the witness. The witness has correctly identified the same as the remaining contraband. The same is Ex. P-2.
MHC(M) produced one transparent plastic jar having Mark-C and details of the present case having the seal of DR.
On Court inquiry, it is stated by this witness that the said sample jar contained the seal of DR as when he produced the case property before the SHO concerned, the SHO was not having his own seal and he got affixed the seal of some other Sub-Inspector posted in the Police Station. The seal was duly intact. Seal was opened with the permission of the Court. It contains two polythene pouches out of which one pouch contains brown hard substance and other one contains brown colour solid form substance and same was shown to the witness. The witness has correctly identified the same which were recovered from accused. The same is Ex. P-3.
MHC(M) produced one original notice U/s 50 NDPS Act recovered from the personal search of the accused, which is Ex. P-4 bearing signature of this witness at Point-A. Same was taken on record.
MHC(M) has also produced Rs. 430/- in the denomination of Rs. 100 X 4 (two notes of Rs. 100/- are new currency notes and two notes of Rs. 100/- are of old currency notes) and Rs. 10 X 3 (new printed currency notes). The same are Ex. P-5.
During his cross-examination on behalf of accused, he could not tell the exact number of Swift Dzire vehicle. It is stated by him that the vehicle was parked at Gali No. 5 and from there they went on foot to the spot.
DLSH010012732022 Page 15 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act A specific question was put to him that there is a wall between Gali No. 5 and the place of alleged recovery, thus no one can go from Gali No. 5 to the place of recovery without jumping the wall. In reply, the witness stated that there was a hole/ opening in the wall from which they went to the spot. It is specifically denied by this witness that there was no such hole or opening in the wall.
It is denied by him that Gali No. 5 is not wide enough to park the car. It is stated by him that accused has apprised his address which was nearby Gali No. 5. This witness could not tell if the house of accused was just 3-4 meters away from the spot of his arrest. It is admitted by him that the area around the spot was residential. He could not tell whether any CCTV camera was installed nearby the spot.
9. PW-5 ASI Lokender deposed that on 17.08.2021, he was posted as ASI at ANTF Shahdara (earlier Narcotics Cell, Shahdara District). On that day, he was present in his office and at around 12:30 pm, a secret informer came to him and told him that one boy namely Rahul would meet in Gali No. 5, East Nathu Colony, where he would be selling smack. Thereafter, this witness produced the secret informer before the IC, ANTF Inspector Rakesh Rawat who also conducted the inquiry from the secret informer. Inspector Rawat conveyed the said information to ACP and after that IC, ANTF directed this witness to take necessary action. In this regard, this witness made DD Entry No. 4 which is already Ex. PW-1/A. He forwarded the copy of the said entry to the ACP, OPS after forwarding the said entry by IC, ANTF Inspector Rakesh Rawat for DLSH010012732022 Page 16 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act compliance U/s 42 NDPS Act. On the directions of IC, ANTF Inspector Rakesh Rawat, a raiding team was constituted by this witness consisting of himself, Ct. Lalit, SI Sukhbir, Ct. Devender and the secret informer. Thereafter, this witness alongwith raiding team departure from the ANTF Office for the spot (vide DD Entry No. 5 which is already Ex. PW-1/B) and reached East Nathu Colony, Gali No. 5 by his private vehicle Swift Dzire. He also collected the electronic weighing machine, IO kit, field testing kit vide the same DD Entry.
It is stated by him that when they reached at East Nathu Colony, Gali No. 5, secret informer further told to move ahead a little bit towards Railway Line where the said boy could be found. This witness asked 2-4 public persons to join the investigation, but none agreed to join the investigation on listening about smack. They also stated that they does not have time to be involved in the police matters. No notice could be served upon them due to paucity of time.
It is stated by him that after reaching the spot, the secret informer pointed out towards a boy who was coming from the side of Railway Line towards Gali No. 5 and stated that he was the boy who is indulged in selling the smack. Thereafter, the secret informer left the spot. They surrounded the said boy who told his name as Rahul. (This witness correctly identified accused in the Court). This witness also told accused that they are having information about him that he was selling illegal smack.
It is stated by him that he introduced himself and the raiding team and told accused that he was carrying and selling smack. This witness told accused that it was his legal right to get himself searched in the presence of any DLSH010012732022 Page 17 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Gazetted Officer or the Magistrate. This witness also told to accused everything relating to his right in simple language. This witness also offered his search as well as search of raiding team with their vehicle. However, accused refused to exercise his right. This witness prepared the notice U/s 50 NDPS Act. He gave the original notice U/s 50 NDPS Act which is already Ex. P-4 to the accused bearing signature of this witness at Point-B. Accused was served with the carbon copy of the same already Ex. PW-4/A bearing signature of this witness at Point-B. Accused also refused to get himself searched in the presence of any Gazetted Officer or the Magistrate as well as to take the search of raiding team and their vehicles. The denial of the accused was recorded by this witness in his handwriting as the accused stated that he was less educated and did not know how to write, but he only can put his signature in Hindi and can also read Hindi. Accused refused/ denied to get conduct his search or the search of raiding team offered to him for search by admitting that he is having smack. His refusal is at Point X to X1. Signatures of the accused is at Point S and S1. His signature on the refusal is at Point B1.
In the meantime, this witness telephonically informed the ACP. After half an hour of the call, ACP also reached the spot. This witness produced the accused before the ACP who also inquired from him and also apprised him if he wants to get searched in the presence of any Gazetted Officer it can be done as their ACP is also available at the spot who is also Gazetted Officer. Accused refused the same by stating that he does not want either to search the raiding team or to get himself searched before the ACP. After giving the directions to proceed further, ACP left the spot.
DLSH010012732022 Page 18 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Thereafter, accused was searched by this witness and six paper pouches and one plastic pouch containing some wet substance were found from the right side of his half pant wearing.
Thereafter, this witness directed Ct. Devender to bring the IO kit as well as sample kit from his car. This witness poured and mixed all the six pouches on one polythene and took out one sample of few quantity from the mixer in the polythene and he took one another sample from the wet substance. He checked both the samples on the sample kit and found the same to be smack. He weighed the wet substance as well as the mixture on the weighing machine and found wet substance to be 21 grams with polythene and mixture found to be 01 gram.
Both the polythenes containing wet substance and the mixture were kept in one plastic transparent jar wrapped with the help of doctor tape and converted into pullanda and was sealed with the seal of LS. He gave Mark-A to the sealed pullanda. He seized the pullanda vide seizure memo already Ex. PW- 4/4 bearing his signature at Point-B. He also obtained signature of the accused at Point-C. Seal after use was handed over to Ct. Devender vide seal handing over memo already Ex. PW-4/5 bearing signature of this witness at Point-B. Thereafter, this witness prepared rukka which is already Ex. PW- 4/2 bearing his signature at Point-B. At around 7:15 pm, he handed over the original rukka to Ct. Lalit. He also handed over the carbon copy of seizure memo of the case property, pullandas with the direction to hand over the rukka to the DO and the remaining things to SHO, P.S. M.S. Park.
Thereafter, Ct. Lalit alongwith ASI Vishesh Pal came at the spot DLSH010012732022 Page 19 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act with copy of FIR and original tehrir. This witness handed over the documents prepared by him and apprehended accused to second IO. Second IO prepared site plan at instance of this witness which is Ex. PW-5/1.
After interrogation, Second IO ASI Vishesh arrested the accused in presence of this witness vide arrest memo already Ex. PW-4/3 bearing signature of this witness at Point-A. The personal search of the accused was also conducted by second IO in presence of this witness vide personal search memo already Ex. PW-4/6 bearing signature of this witness at Point-A. In the personal search, one original notice U/s 50 NDPS Act and Rs. 430/- were found.
Thereafter, all the raiding team with accused returned back to P.S. M.S. Park. Case property was deposited by the second IO in the maalkhana. Accused was lodged behind the lock-up after medical examination.
Statement of this witness was recorded by the second IO at ANTF Office on the next day.
The case property i.e. contraband and personal search articles of the accused recovered during his personal search have already been opened and exhibited in the testimony of PW-4. The Counsel does not dispute the identity of the case property as well as personal search articles. Hence, the case property and personal search articles were not shown to the witness and the same were dispensed with.
During his cross-examination on behalf of accused, it is stated by him that the vehicle was parked outside Gali No. 5 on Mandoli road and from there they went on foot to the spot. It is stated by him that secret informer pointed out the accused from a distance of about 15-20 meters. It is stated by DLSH010012732022 Page 20 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act him that the secret informer left the spot from the corner of Gali No. 5.
A specific question was put to him that there is a wall between Gali No. 5 and the place of alleged recovery, thus no one can go from Gali No. 5 to the place of recovery without jumping the wall. In reply, the witness stated that there was a hole/ opening in the wall from which they went to the spot. It is specifically denied by this witness that there was no such hole or opening in the wall.
It is stated by him that the distance between the spot and the house of accused was about 40-50 steps. It is stated by him that public persons left the spot without apprising their names and addresses by saying that they do not wish to get involved in police matters.
10. PW-6 Inspector Prashant Yadav deposed that on 17.08.2021, he was posted at P.S. M.S. Park as SHO. At about 8:30 pm, Ct. Lalit, Narcotics Cell, Shahdara District came to office of this witness and handed over to this witness one sealed pullanda sealed with the seal of 'LS' and carbon copy of seizure memo. This witness affixed his seal on the said pullanda with seal of NK which was borrowed by him from SI Neetu Kumar, as his seal was not available with him at that time. After confirming the FIR Number from the Duty Officer, this witness wrote the same on the parcel and copy of seizure memo. He also signed the parcel and copy of seizure memo.
He then called the MHC(M) CP alongwith register no.19 in his office and MHC(M) has made entry of all the details in the register no.19 and he handed over case property and all documents to MHC(M) CP. He also signed at DLSH010012732022 Page 21 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Points A and B against the relevant entry in register no.19 which is Ex. PW-6/A (original produced by MHC(M), seen and returned). In this regard, he lodged a GD Entry, but he does not remember its number at this stage. On seeing, GD No. 121A dated 17.08.2021 he stated that the said GD Entry was got lodged by him and bears his signatures at Point-A, the same is Ex. PW-6/B. His statement was recorded by the IO.
During his cross-examination on behalf of accused, it is stated by him that SI Nitu Kumar did not participate in the investigation of the present case. It is voluntarily stated that he had borrowed the seal from him (SI Nitu Kumar), hence his statement was also recorded by the IO. It is stated by him that no handing over memo was prepared either when the seal was taken from SI Nitu Kumar or when it was returned to him.
11. PW-7 ASI Rajeev Saxena deposed that he is posted as Reader to ACP, Operation Cell, Shahdara District. He has brought original diary register of the year 2021 of ACP, Operation Cell, Shahdara District alongwith two original reports U/s 57 NDPS Act with respect to recovery of illegal heroin and arrest of accused Rahul prepared by ASI Lokender and ASI Vishesh Pal, respectively in FIR No. 275/2021, P.S. M.S. Park.
It is stated by him that on 18.08.2021 he was posted as Reader to ACP, Operation Cell, Shahdara. The aforementioned reports were seen and signed by the then ACP Sh. Sushil Kumar Tyagi. Original reports U/s 57 NDPS Act are taken on record and the same are Ex. PW-7/A and Ex. PW-7/B, both bearing signatures of ACP Sh. Sushil Kumar Tyagi at Point-A. Entry with DLSH010012732022 Page 22 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act respect to receiving the said reports were made in diary register at serial nos. 94 and 95, respectively. Copy of the diary register containing the said entries in writing of this witness at serial nos. 94 and 95 are Ex. PW-7/C (two pages).
It is stated by him that on 17.08.2021, information U/s 42 NDPS Act by ASI Lokender was also received through AATS Shahdara, Narcotics Cell, entry with respect to which is made at serial no. 93 in Ex. PW-7/C by this witness in his own handwriting. Copy of the said information is Mark-X1 bearing the diary no. 93 dated 17.08.2021 in his handwriting at Point-A.
12. PW-8 ASI Sanjay Kumar deposed that on 17.08.2021, he was posted at P.S. M.S. Park as HC and was working as MHC(M). On that day at about 8:30 pm, SHO Inspector Prashant Yadav called this witness in his office and handed over to this witness one sealed parcel and carbon copy of seizure memo on which the SHO has already put the FIR Number and his signatures. The pullandas were already sealed with the seals of LS and NK. This witness made entry in register no. 19 at serial no. 1864. Same is already Ex. PW-6/A (OSR). Inspector Prashant Yadav also countersigned the entry in register no. 19 at Point-A. It is stated by him that on the same day SI Vishesh Pal deposited personal search articles of the accused in the maalkhana. This witness made entry vide serial no. 1865 in this regard in register no. 19. Copy of entry vide serial no. 1865 is Ex. PW-8/A (OSR).
It is stated by him that on 25.08.2021, he handed over one sealed parcel sealed with the seals of LS and NK to ASI Vishesh Pal for sampling U/s DLSH010012732022 Page 23 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act 52A NDPS Act vide RC No. 67/21/21. Copy of RC No. 67/21/21 is Ex. PW-8/B (OSR) bearing signature of this witness at Point-A. This witness made entry in this regard in register no. 19 at serial no. 1864 at Point-X. After the sampling of case property ASI Vishesh Pal came back to the maalkhana and deposited three sealed parcels alongwith sample seal.
It is stated by him that on 02.09.2021, he handed over one sealed parcel sealed with the seal of DR alongwith sample seal of DR to ASI Vishesh Pal to be deposited at FSL vide RC No. 73/21/21. This witness made entry in this regard in register no. 19 at serial no. 1864 at Point-Y. After depositing the same, ASI Vishesh Pal came back and handed over acknowledgment of FSL to this witness. The copy of RC No. 73/21/21 is Ex. PW-8/C (OSR) which bears signature of this witness at Point-A and acknowledgment of FSL is Ex. PW-8/D (OSR).
It is stated by him that till the time the case property was in his possession, it has not been tampered with.
13. PW-9 ASI Vishesh Pal Singh deposed that on 17.08.2021, he was posted at Narcotics Cell, Shahdara. On that day, on receiving information from Duty Officer as well as ASI Lokender, this witness reached the spot i.e. Gali No. 5, East Nathu Colony, near Railway Line, Delhi where ASI Lokender Singh, ASI Sukhbir and Ct. Devender met him alongwith accused Rahul (correctly identified by this witness in the Court). ASI Lokender handed over the custody of the accused to this witness and also handed over the documents prepared by him to this witness. In the meanwhile, Ct. Lalit came at the spot and DLSH010012732022 Page 24 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act handed over copy of FIR and original rukka to this witness. This witness entered the FIR Number on the seizure memo prepared by ASI Lokender.
It is stated by him that he prepared the site plan which is already Ex. PW-5/1 at the instance of ASI Lokender which bears signature of this witness at Point-A. He arrested the accused vide arrest memo which is already Ex. PW-4/3 bearing his signature at Point-B. He also conducted personal search of the accused vide personal search memo already Ex. PW-4/6 which bears his signature at Point-B. Original notice U/s 50 NDPS Act, Rs. 430/- were recovered from personal search of accused. This witness recorded disclosure statement of accused which is Ex. PW-9/A bearing his signature at Point-A. It is stated by him that accused was brought back to their office. As per disclosure of accused they tried to search for the source of contraband namely Sahil, near Tikona Park, but in vain. Thereafter, the accused was produced before the Court and was sent to J/C. It is stated by him that on 18.08.2021, he prepared his report U/s 57 NDPS Act regarding arrest of accused and submitted the same for onward transmission to the senior officer. The report is already Ex. PW-7/B which bears his signature at Point-B. It is stated by him that he moved an application before the Court for sampling of recovered contraband U/s 52A NDPS Act which was fixed for 25.08.2021. He obtained sealed parcels from MHC(M) on 25.08.2021 vide RC No. 67/21/21, copy of which is already Ex. PW-8/B bearing his signature at Point-B. He went to the Court of Ms. Deepakshi Rana, Ld. MM, KKD Courts alongwith Ct. Devender where Ld. MM conducted the sampling proceedings DLSH010012732022 Page 25 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act U/s 52A NDPS Act. Ct. Devender took the photographs of sampling proceedings. Two samples were drawn from the recovered contraband and kept in two separate containers which were marked as Mark A and B and container containing remaining contraband was given Mark-C. All the parcels were sealed with the seal of DR. Ld. MM also affixed a sample seal. This witness obtained copy of the order. He filled the FSL Form. He came back to the Police Station and deposited the sealed parcels alongwith FSL Form with MHC(M).
It is stated by him that during the course of investigation, he obtained the photographs of sampling proceedings. He also sent the exhibits to FSL Rohini.
It is stated by him that he recorded the statement of the witnesses and prepared the challan and filed before the Court.
During his cross-examination on behalf of accused, it is stated by him that he had not asked any public person to join the investigation. He failed to admit or deny if CCTV cameras were installed at the spot. It is stated by him that there was one Railway Line near the spot. It is denied by him that he did not prepare the site plan at the instance of ASI Lokender.
14. PW-10 Ct. (now HC) Devender deposed that on 17.08.2021 he was posted as Constable at Narcotics Cell, Shahdara District. On that day, he was present in Narcotics Cell of Shahdara District, at around 12:30 pm, ASI Lokender told to this witness, ASI Sukhbir, Ct. Lalit that he has received an information from the secret informer that one boy would meet in Gali No. 5, East Nathu Colony, where he would be selling smack and directed them to be DLSH010012732022 Page 26 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act ready to conduct the raid.
It is stated by him that after some time, raiding team was constituted by ASI Lokender consisting of this witness, ASI Sukhbir, Ct. Lalit and the secret informer. This witness alongwith raiding team reached East Nathu Colony, Gali No. 5 by private vehicle Swift Dzire. Number of which he do not remember, but it was belonging to ASI Lokender. ASI Lokender carried IO kit, electronic weighing machine, testing kit etc in the car. When they reached East Nathu Colony, Gali No. 5 secret informer further told to move ahead a little bit towards railway line where the said boy could be found. ASI Lokender asked 3-4 public persons to join the investigation, but none agreed to join the investigation by stating that they do not have time to be involved in the police matters. No notice could be served upon them. At about 1:30-2:00 pm secret informer pointed out towards a boy who was coming from the side of Railway Line towards Gali No. 5.
This witness deposed on the same lines as deposed by PW-4 HC Lalit on other aspects.
It is further stated by him that ACP Sushil Tyagi also reached the spot.
It is further stated by him that the carbon copy of the notice is already Ex. PW-4/1 which bears carbon impressions of his signature at Point-C, signature of accused at Point-X as receipt of original notice, denial of the accused is marked 'X to X1' which is in the handwriting of ASI Lokender which bears signature of this witness at Point-C1. The said denial was written by ASI Lokender as the accused stated that he was less educated and did not DLSH010012732022 Page 27 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act know how to write. Accused also put his signature at Point-S1 below his denial.
It is stated by him that accused was searched by ASI Lokender and six paper pouches and one plastic pouch containing some wet substance were found from the right side of his half pant wearing. Thereafter, ASI Lokender directed Ct. Lalit to bring the IO kit as well as sample kit from his car. ASI Lokender tested the brown colour powder found in six paper pouches and the wet powder found in polythene on the testing and it was found to be smack (heroin). They also weighed contents of six paper pouches by emptying the same in a polythene pouch which was found to be 01 gram and weight of the wet powder found in the polythene bag was found to be 21 grams. He kept both the polythene pouches in a plastic box after tying the same. The plastic container was sealed with the seal of LS. The seal was handed over to this witness after use. ASI Lokender prepared seizure memo already Ex. PW-4/4 which bears signature of this witness at Point-D. This witness also prepared seal handing over memo already Ex. PW-4/5 which bears his signature at Point-C. Thereafter ASI Lokender prepared the rukka and handed over the carbon copy of seizure memo and the sealed parcels to Ct. Lalit with the direction to hand over the rukka to the Duty Officer and the remaining things to SHO.
It is stated by him that after some time, ASI Vishesh came at the spot and ASI Lokender handed over custody of accused and documents prepared by him to ASI Vishesh. ASI Vishesh arrested the accused vide arresting documents already Ex. PW-4/3 and Ex. PW-4/6 and recorded disclosure statement of the accused. The original notice U/s 50 NDPS Act DLSH010012732022 Page 28 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act recovered from the personal search of accused already Ex. P-4 bears signature of this witness at Point-C. It is stated by him that on 25.08.2021 he alongwith ASI Vishesh Pal appeared before the Court of Ms. Deepakshi Rana, Ld. MM, KKD Courts, where ASI Vishesh Pal produced the sealed parcel of the recovered contraband before Ld. MM. Ld. MM conducted the sampling proceedings and two samples were drawn from the parcel of recovered contraband. After drawing the same, all the three parcels were sealed with the seal of Ld. MM i.e. DR. On the instructions of Ld. MM, this witness took 18 photographs of the sampling proceedings through official digital camera. Thereafter, they came back. After taking the print out of two sets of photographs, this witness handed over the same to ASI Vishesh Pal. This witness also issued certificate U/s 65-B of IEA. The print out of 18 photographs annexed with the file are Ex. PW-10/A (Colly) (marked as A1 to A-18). The certificate U/s 65-B of IEA is Ex. PW-10/B which bears signature of this witness at Point-A. This witness correctly identified accused in the Court. It is stated by him that the sampling proceedings U/s 52A NDPS Act has already been conducted before Ld. MM. Production of case properties is therefore dispensed with.
During his cross-examination on behalf of accused, it is stated by him that secret informer pointed out towards accused from a distance of 50-60 meters, while he (accused) was present near the Railway Line. It is denied by him that accused is not visible from Gali No. 5 as there was a wall. However, it is admitted by him that they (police team) have to climb the wall for going DLSH010012732022 Page 29 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act towards Railway Line. It is admitted by him that there were grocery shops in Gali No. 5. He failed to admit or deny if any CCTV cameras were installed near the spot.
15. PW-11 SI (now Inspector) Nitu Kumar deposed that on 17.08.2021, he was posted at P.S. M.S. Park as SI. On that day at about 8:30 pm, Inspector Prashant Yadav, SHO P.S. M.S. Park told this witness that he has to counter- seal the parcel pertaining to the present case in compliance with Section 55 NDPS Act, but his seal is not available with him. On request, this witness handed over his seal of NK to Inspector Prashant Yadav. Inspector Prashant Yadav returned back the seal to this witness after use.
16. PW-12 retired ACP Sushil Tyagi deposed that on 17.08.2021, he was posted as ACP, DIU Shahdara District and was also looking after the work of ACP, Operation Cell, Shahdara. On that day at about 12:45 pm Inspector Rakesh Rawat telephonically informed this witness about the secret information that one person namely Rahul, used to sell heroin near Railway Line, East Nathu Colony, Gali No. 5 and can be apprehended, if raided.
It is stated by him that he directed to constitute the raiding team and take appropriate legal action. At around 3:30 pm, ASI Lokender informed this witness about the apprehension of accused Rahul and requested this witness to come to the spot. This witness reached at Gali No. 5, East Nathu Colony, near Railway Line where ASI Lokender alongwith other staff met him and accused Rahul (this witness correctly identified the accused in the Court) also DLSH010012732022 Page 30 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act met him there. This witness introduced himself to the accused and apprised him about his legal rights that his search can be taken in presence of this witness since he is a Gazetted Officer. Accused refused to get himself searched in presence of Gazetted Officer or Magistrate. Thereafter giving necessary instructions to ASI Lokender, this witness left the spot.
It is stated by him that on 17.08.2021, DD No. 4 pertaining to the secret information was placed before him by his Reader which was seen and signed by him. The copy of DD No. 4 is Mark-X1 which bears his signature at Point-B. It is stated by him that on 18.08.2021 his Reader placed before him report U/s 57 NDPS Act regarding seizure of contraband already Ex. PW-1/D which was seen and signed by him at Point-B. On the same day his Reader also placed before him one report U/s 57 NDPS Act prepared by ASI Vishesh Pal regarding arrest of accused already Ex. PW-1/E which was seen and signed by him at Point-B. During his cross-examination on behalf of accused, it is stated by him that he reached the spot in his Government vehicle. It is stated by him that he has not made any departure entry in his office. It is stated by him that his vehicle was parked near the houses situated beside Railway Line.
A specific question was put to him that there was no place to park vehicle between Railway Line and the houses as there was a 08 feet wall near the Railway Line and houses started from that wall. In reply, initially this witness stated that there was space between houses and again in the same breathe he stated that he does not remember exactly where the vehicle was DLSH010012732022 Page 31 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act parked. He failed to remember the distance between the place where his vehicle was parked and where the accused was standing.
17. PW-13 Dr. Kavita Goyal, Assistant Director, Chemistry, FSL, Rohini, Delhi deposed that she is working at FSL, Rohini since 1999. On 02.09.2021, she was posted as Assistant Director (Chemistry) at FSL Rohini. On that day two sealed parcels Mark A and B sealed with the seal of DR in FIR No. 275/2021 dated 17.08.2021, U/s 21 NDPS Act, P.S. M.S. Park alongwith specimen seal, forwarding letter, copy of FIR, copy of seizure memo etc. were received in their office from SHO, P.S. M.S. Park vide letter reference no. 1857/SHO/ M.S. Park dated 02.09.2021. Same were marked to her for chemical examination. The seals were intact and were tallying with specimen seal.
On opening the parcel Mark-A, it was found containing brownish red coloured hard material kept in a polythene pouch. The material was taken out and it was weight approx. 2.5 gms, and it was mark as Ex. A. On opening the parcel Mark-B, it was found containing brownish red coloured hard material kept in a polythene pouch. The material was taken out and it was weight approx. 0.4 gms, and it was mark as Ex. B. She analyzed the exhibits between 06.01.2022 to 24.02.2022. After chemical, TLC and GC-MS examination of Ex. A and Ex. B, the same were found to contain diacetylmorphine, codeine, morphine, acetylcodeine, monoacetylmorphine, trimethoprim and papaverine.
After the examination the remnants of the exhibits were kept in separate parcels which were sealed with the seal of K.G. FSL DELHI.
DLSH010012732022 Page 32 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act She prepared the detailed report bearing no. SFSL DLH/8572/CHEM/2852/20 dated 24.02.2022 which is Ex. PW-13/A (running into two pages) bearing her signatures at Points A and B. She submitted her report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
18. During trial, accused admitted the proceedings U/s 52A NDPS Act conducted by Ms. Deepakshi Rana, Ld. MM on 25.08.2021 in the present case (Ex. AD-1) U/s 330 BNSS/ 294 Cr.P.C.
19. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 08.10.2025.
STATEMENT OF ACCUSED
20. Statement of accused was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that his signatures were obtained forcibly on blank papers. It is stated by him that he was falsely arrested. It is stated by him that the reports are ante-dated. It is stated by him that no contraband was recovered from his possession. It is stated by him that being the police officials witnesses have deposed against him in order to prove their false case. It is stated by him that he was lifted from his house and was falsely implicated in the present case.
He chose to lead defence evidence.
DLSH010012732022 Page 33 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act DEFENCE EVIDENCE
21. In order to substantiate his defence, accused has examined Sh. Pankaj who is his neighbour as defence witness.
22. DW-1 Sh. Pankaj Verma deposed that he was the neighbour of the accused. On 17.08.2021, he was present in his house i.e. B-67, Gali No. 5, East Nathu Colony, Shahdara, Delhi-110093. At around 12:30 pm, he saw that some police officials were taking out accused Rahul from his house. This witness came out after hearing the commotion. The police officials were in plain clothes.
During his cross-examination by Ld. Addl. PP for the State, it is stated by him that he knew accused Rahul since childhood. He has cordial relations with the family of accused. It is stated by him that he has seen the accused in the custody of police officials outside his house near the gate and near the wall beside the Railway Line.
23. No other witness was examined by accused in his defence. Thereafter, D.E. was closed vide order dated 21.11.2025.
FINAL ARGUMENTS
24. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record carefully.
25. It is contended by Ld. Addl. PP for the State that all the procedures DLSH010012732022 Page 34 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act as per NDPS Act have been complied with in the present matter at the time of recovery and thereafter. It is contended that total 22 gms heroin/ smack from accused was recovered. There is nothing on record to suggest that police officials had any enmity with the accused. Thus, the offence U/s 21(b) NDPS Act is proved beyond reasonable doubt against the accused.
26. Per contra, it is contended on behalf of the accused that accused has been falsely implicated in the present case. It is contended that no contraband was recovered from possession of accused and he was lifted from his house. It is pointed out that no CCTV footage qua arrest of accused or his movement towards the spot of his arrest has been filed on record. It is contended that there is no videography or photography of the recovery proceedings. No public person joined in the investigation as no recovery was effected from the alleged place and time. Thus, story of the police is concocted one.
Legal Requirement to prove the Charges :-
27. Section 21 NDPS Act reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may DLSH010012732022 Page 35 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
28. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
29. As per the Section, possession of all narcotic drugs is prohibited by DLSH010012732022 Page 36 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Section 8 of NDPS Act.
30. 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;
31. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
32. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :-
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
33. "Opium Derivatives" besides other things also means heroin. It is defined in Section 2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with DLSH010012732022 Page 37 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
34. 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."
35. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
36. In order to prove the charge U/s 21(b) NDPS Act, the prosecution is required to prove the following facts:
(1) That accused was in possession of contraband.DLSH010012732022 Page 38 of 58 SC No. 48/2022
STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act (2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative/ heroin. (4) That the quantity of the contraband was intermediate for Section 21(b) NDPS Act.
37. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously. The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
38. 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 DLSH010012732022 Page 39 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and
57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in 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 DLSH010012732022 Page 40 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
39. 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 DLSH010012732022 Page 41 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
40. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously as held by Hon'ble Bombay High Court in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002 :-
"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 DLSH010012732022 Page 42 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act 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."
Thus, 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.
41. 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 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.
DLSH010012732022 Page 43 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act ANALYSIS OF EVIDENCE
42. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:-
Discussion on the point of compliance of Section 42 of NDPS Act
43. 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 consta- ble) 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 per- sonal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in re- spect 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 con- cealed 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 en- try;
(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 be- lieve 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 of- fence punishable under this Act or furnish evidence of holding any illegally ac- quired 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 rea- son to believe to have committed any offence punishable under this Act:
DLSH010012732022 Page 44 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS 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 conceal- ment 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 sun- rise 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 sev-
enty-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
44. With respect to the compliance of Section 42 NDPS Act, PW-5 ASI Lokender has stated that on 17.08.2021 at around 12:30 pm a secret informer came to him in his office and told him that one boy Rahul would meet in Gali No. 5, East Nathu Colony, where he would be selling smack. PW-5 ASI Lokender produced the secret informer before I/C AATS Inspector Rakesh Rawat (PW-1) who also conducted the inquiry from the secret informer. PW-1 (now ACP) Inspector Rakesh Rawat conveyed the said information to ACP and after that PW-1 Inspector Rakesh Rawat directed ASI Lokender to take necessary action. Thereafter, DD No. 4 was lodged regarding the secret information in compliance of provisions of Section 42 NDPS Act. Copy of DD was forwarded to the ACP OPS after forwarding the said DD by Inspector Rakesh Rawat (PW-1). DD No. 4 is Ex. PW-1/A. A raiding team was also constituted by ASI Lokender including Ct. Lalit, SI Sukhbir and Ct. Devender.
PW-1 Inspector Rakesh Rawat also deposed on the same lines that ASI Lokender told him about the secret information in his office, he also verified DLSH010012732022 Page 45 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act the said fact from the secret informer and gave the said information to ACP Operation, Shahdara who directed him to take action as per law. Thereafter, Inspector Rakesh Rawat instructed ASI Lokender to take action as per law.
PW-12 ACP Sushil Tyagi deposed on the same lines. He stated that at about 12:45 pm PW-1 Inspector Rakesh Rawat telephonically informed qua secret information. It is also stated by him that he directed Inspector Rakesh Rawat to take immediate action.
45. DD No. 4 (Ex. PW-1/A) dated 17.08.2021 corroborates the testimony of PW-1 as in the said DD Entry it is categorically mentioned that a secret informer arrived in their office at 12:30 pm and conveyed to ASI Lokender a secret information as stated above.
It is also deposed by PW-7 ASI Rajeev Saxena who is posted as Reader to ACP that on 17.08.2021, information U/s 42 NDPS Act by ASI Lokender was also received through AATS, Shahdara, Narcotics Cell, entry with respect to which is made at serial no.93 in Ex. PW-7/C by him in his handwriting. This fact has also been confirmed by PW-12 ACP Sushil Tyagi that on 17.08.2021, DD No.4 pertaining to the secret information was placed before him by his Reader which was seen and signed by him. The copy of DD No.4 is Mark X1.
46. As per Section 42 of the NDPS Act, the Central Government and State Government may empower any officer, superior in rank to a Peon, Sepoy or Constable to take action U/s 42 i.e. conduct search, seizure and arrest as per DLSH010012732022 Page 46 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act the said section without warrant or authorisation. Further, in a notification dated 14.11.1985 which is reproduced here under officials of Delhi Police superior in rank to a Constable were conferred power to take action U/s 42 of the 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 8th 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 DLSH010012732022 Page 47 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
47. As per the aforesaid 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, PW-5 ASI Lokender was empowered to act U/s 42 of the NDPS Act.
48. In view of the above-stated circumstances, it can be held that provisions of Section 42 of NDPS Act qua recording of secret information and conducting search by empowered officer have been duly complied with in the present case, as per record.
49. Since the present case is a case of recovery from public place, hence, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case, rather Section 43 NDPS Act would come into play. Still due compliance of Section 42 NDPS Act duly proves how the police reached the spot where accused was arrested.
50. It is deposed by all the members of raiding team that they apprehended the accused from Gali No. 5, near Railway Line, East Nathu DLSH010012732022 Page 48 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act Colony, Delhi i.e. a public road and from right side pocket of his wearing half pant contraband was recovered.
51. In view of the above-stated circumstances, it can be held that provisions of Section 43 NDPS Act have been duly complied with in the present case, as per record.
Discussion on the point of compliance of Section 50 of NDPS Act
52. 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) DLSH010012732022 Page 49 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act
53. As per prosecution case, after apprehension of the accused, he was served with mandatory notice under Section 50 of the NDPS Act (carbon copy of the notice is Ex. PW-4/1, the version of the accused is at Points X to X1 on Ex. PW-4/1 and original notice recovered in the personal search of the accused is Ex. P-4). It is deposed by PW-5 ASI Lokender that notice was read over and explained in simple language to accused and he was also offered search of raiding team with their vehicle, but accused stated that he understands his legal rights and also apprised that he was having smack in his possession. It is also stated by him that he does not want to be searched in presence of Gazetted Officer or Magistrate and does not want to take search of the police party. The said reply of accused was noted down by ASI Lokender as accused stated that he was less educated and did not know how to write, but he can only put his signature in Hindi and can only read Hindi. Interestingly, signatures of the accused on this notice are in English. Despite refusal of accused to be searched in presence of Gazetted Officer or Magistrate, as an abundant caution, PW-12 ACP Sushil Tyagi was called at the spot. On reaching the spot PW-12 ACP Sushil Tyagi, who is a Gazetted Officer, gave his introduction to the accused and apprised accused about his legal rights that his search can be taken in his (ACP's) presence, but accused refused for the same. Thereafter, giving necessary instructions to ASI Lokender, ACP Sushil Tyagi left the spot.
54. The search of accused was carried out by PW-5 ASI Lokender, wherein six paper pouches containing total 01 gram heroin and one plastic pouch containing 21 grams of heroin.
DLSH010012732022 Page 50 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act
55. It is to be noted that signatures of accused on notice U/s 50 NDPS Act are in English. Infact, his signatures on all the documents are in English. Thus, the story of PW-5 that accused stated that he can only read Hindi and put signature in Hindi only became doubtful. In such circumstances, there appears some doubt qua due service of notice U/s 50 NDPS Act on the accused before his bodily search.
56. Section 55 of the NDPS Act was duly complied with in the present matter as SHO, P.S. Mansarovar Park examined as PW-6 had also put seal of NK (which was borrowed by him from SI Neetu Kumar as his seal was not available with him at that time) on the sealed pullanda and carbon copy of seizure memo, before depositing the same in the maalkhana. An entry qua same was also made in register no.19 which is exhibited on record as Ex. PW-6/A (original produced by MHC(M), seen and returned). SHO Inspector Prashant Yadav also got lodged GD No. 121A dated 17.08.2021 which is Ex. PW-6/B.
57. Section 57 of the NDPS Act which requires that :-
"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."
58. In the present matter, alleged recovery of contraband was DLSH010012732022 Page 51 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act effectuated by PW-5 ASI Lokender and after recovery of the case property investigation of the present case was marked to PW-9 ASI Vishesh Pal Singh who arrested the accused. As per record, both these police officials had sent reports U/s 57 NDPS Act to the ACP (though it was not stated by PW-5 ASI Lokender in his testimony that he had sent any such report).
59. The report regarding recovery of illegal heroin by PW-5 ASI Lokender was sent on 18.08.2021 signed by Inspector Narcotics Cell on 18.08.2021 received in the office of ACP, Operation Cell, Shahdara vide diary no. 94 dated 18.08.2021 (Ex. PW-1/D). The same is bearing signature of Inspector Narcotic Cell/ Shahdara as well as signature of ACP, Operation, Shahdara dated 18.08.2021 itself. The original report is on record as Ex. PW- 7/A. This fact has been corroborated with the testimony of PW-12 ACP Sushil Tyagi who was ACP, Operation Cell, Shahdara at the relevant time period.
60. The report regarding arrest of accused by PW-9 ASI Vishesh Pal Singh was sent on 18.08.2021 signed by Inspector Narcotics Cell on 18.08.2021 received in the office of ACP, Operation Cell, Shahdara vide diary no. 95 dated 18.08.2021 (Ex. PW-1/E). The same is bearing signature of Inspector Narcotic Cell/ Shahdara as well as signature of ACP, Operation, Shahdara dated 18.08.2021 itself. The original report is on record as Ex. PW-7/B. This fact has been corroborated with the testimony of PW-12 ACP Sushil Tyagi who was ACP, Operation Cell, Shahdara at the relevant time period.
DLSH010012732022 Page 52 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act
61. Thus, the said reports have been duly proved on record. The reports were submitted to ACP concerned within 48 hours of recovery. Accordingly, in the opinion of the Court the provisions of Section 57 of the NDPS Act were duly complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of compliance of Section 52A of NDPS Act
62. As a matter of fact, in the present case the sampling proceedings were conducted before the Ld. Magistrate U/s 52A of the NDPS Act. The said proceedings were admitted during trial by the accused which is on record as Ex. AD-1. Two of the samples taken during proceedings U/s 52A of the NDPS Act had duly reached FSL with the seal of 'DR' of Ld. MM and the FSL report has been duly proved on record as Ex. PW-13/A. The said two parcels were proved on record as Ex. P-1 and Ex. P-2 bearing due seal of 'FSL KG DELHI'. One transparent jar having Mark-C during proceedings U/s 52A of the NDPS Act containing remaining contraband was duly proved in the Court having due seal of 'DR' of Ld. MM and is exhibited as Ex. P-3.
63. Thus, in the present case there is due compliance of Section 52A NDPS Act, as the sampling proceedings were done by Ld. MM.
64. During trial, PW-13 Dr. Kavita Goyal, Assistant Director (Chemistry) at FSL, Rohini exhibited on record FSL report dated 24.02.2022 as Ex. PW-13/A wherein it was held that Ex. A and Ex. B i.e. samples of the DLSH010012732022 Page 53 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act present case were found to contain Diacetylmorphine, Codeine, Morphine, Acetylcodeine, Monoacetylmorphine, Trimethoprim and Papaverine.
Discussion on the place of recovery
65. There is serious doubt in the present matter qua place of recovery from where accused was apprehended and contraband was recovered from him due to following reasons :-
(a)(i) As per rukka, the place of apprehension of accused was Gali No. 5, East Nathu Colony, near Railway Line, Delhi. Similarly is shown in the site plan. Thus, as per the case of prosecution accused was arrested in Gali No. 5.
However, in his cross-examination, it is stated by PW-4 (now HC) Ct. Lalit (a member of the raiding party) that there was a hole/ opening in the wall between Gali No. 5 and the place of alleged recovery, from which they went to the spot. Similarly stated by PW-5 ASI Lokender (head of the raiding party).
Thus, from their testimonies it can be held that there was a wall at the end of the Gali No. 5 and there was some hole/ opening in that wall from which the raiding party went to the Railway Line where they arrested the accused. PW-4 and PW-5 were members of the same raiding party. Their testimonies qua place of recovery are not consistent with the case of prosecution. Thus, a serious doubt arises qua place of recovery.
DLSH010012732022 Page 54 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act
(ii) While, it is stated by PW-4 Ct. Lalit and PW-5 ASI Lokender that they crossed the wall from hole/ opening in the wall, per contra it is deposed by PW-10 Ct. (now HC) Devender (another member of the raiding party) that they have to climb the wall for going towards Railway Line. Thus, there is contradiction on this point as well amongst members of raiding party i.e. whether they had crossed the wall by jumping the same or by entering through a hole/ opening in the wall for reaching the Railway Line.
(iii) In the site plan there is no mention of any such wall. It has not been shown if accused was present behind any such wall. No wall or any opening/ hole in the wall whatsoever has been shown in the site plan.
(iv) It is stated by PW-5 ASI Lokender that secret informer pointed out towards accused from a distance of about 15-20 meters and secret informer left the spot from the corner of Gali No. 5, while it is stated by PW-10 Ct. Devender that secret informer pointed out towards accused from a distance of 50-60 meters, while he was present near the Railway Line.
As per all the members of the raiding party i.e. PW-4 Ct. Lalit, PW-5 ASI Lokender and PW-10 Ct. Devender there was a wall between Gali No. 5 and Railway Line which they crossed through a hole/ opening in the wall or by climbing the wall. If there was such a wall between Gali No. 5 and Railway Line, then there was no chance to see the accused from corner of Gali No. 5 from the distance of about 15-20 meters as per PW-5 ASI Lokender or from the distance of about 50-60 meters as per PW-10 Ct. Devender.
DLSH010012732022 Page 55 of 58 SC No. 48/2022STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act The inconsistency in the version of raiding team members qua the place from where secret informer pointed out towards the accused also shows that police officials are not consistent qua place of apprehension of accused.
(v) PW-4 Ct. Lalit has stated that the vehicle whereby they reached the spot was parked at Gali No. 5 from there they went on foot to the spot. He denied the suggestion that Gali No. 5 is not wide enough to park the car.
This statement of PW-4 is inconsistent to testimony of PW-5 ASI Lokender who has stated that the vehicle was parked outside Gali No. 5 on Mandoli Road and from there they went on foot to the spot.
These discrepancies in the version of the police officials who were members of same raiding party shows that the case of prosecution is doubtful.
(b) Furthermore, the claim of the police party that ACP Sushil Tyagi had reached the spot, is also doubtful due to following reasons :-
(i) ACP Sushil Tyagi has not made any departure entry in his office for going to the spot. No documentary evidence (e.g. log book) has been filed on record to show that he in his government vehicle has reached the spot. It is stated by this witness that the vehicle whereby he reached the spot was parked near the houses situated beside Railway Line. However, on a specific question put to him that there was no place to park the vehicle between Railway Line and the houses as there was a 08 feet wall near the Railway Line and houses starting DLSH010012732022 Page 56 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act from that wall, this witness got confused and stated that he does not remember where the vehicle was parked.
This fact again raised doubt qua spot of apprehension as well as qua the claim that ACP Sushil Tyagi has reached the spot.
(c) There is no videography or photography of the search, arrest or recovery proceedings was clicked/ made.
(d) No CCTV footage qua presence of the accused at the time and place of arrest or his movement towards the spot of arrest has been filed on record.
The police officials could not specifically tell if there were any CCTV camera in Gali No. 5 or not. They gave evasive answers on this aspect as they failed to admit or deny if CCTV cameras were installed at the spot. This evasiveness on the part of police officials probablise the contention of the accused that there were CCTV cameras installed in that gali, but the police officials did collect the CCTV footage which would have been the best evidence qua recovery of contraband from the accused at the time and place alleged by the prosecution.
(e) The place of recovery i.e. East Nathu Colony, Delhi was a residential area/ public place. Admittedly, a number of public persons were present there at that time. Despite that police did not join and did not even sincerely try to join any public person or local resident. Though, it is a fact that DLSH010012732022 Page 57 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act generally public persons do not became part of police proceedings or investigation, more so in a case of Narcotic Drugs. This inaction on the part of the police raises doubt qua time and place of recovery as stated by the police.
Non-joining of public witness during the proceedings, raises serious doubt as regards the recovery made from the accused. In this regard, reliance can be placed upon judgment titled as Bantu Vs. State Govt. of NCT of Delhi (Bail Appl. No.2287/22 dtd.08.07.2024 of Hon'ble Delhi High Court).
Thus, in the present matter, it can be safely held that sincere and sufficient efforts were not made by the police party to join the independent witness in the investigation.
66. In view of the above-stated circumstances, it can be squarely held that there are inconsistencies in the version of prosecution witnesses qua place of apprehension of accused. The above-stated discrepancies makes the entire case of prosecution doubtful and makes the defence of accused probable that he was picked from his house which was situated in Gali No. 5 and falsely implicated in the present case.
Conclusion
67. In the present matter, the prosecution has failed to prove beyond reasonable doubt the place of apprehension of accused and place of recovery as discussed above, which raise a doubt in the mind of the Court as regards the story of the prosecution. In the opinion of the Court, it cannot be said beyond DLSH010012732022 Page 58 of 58 SC No. 48/2022 STATE Vs. RAHUL FIR No. 275/2021 (Mansarovar Park) U/s 21(b) NDPS Act doubt that there is no material contradiction in the story of the prosecution. Therefore, in the opinion of the Court, the benefit of doubt would go in favour of the accused.
68. Accordingly, accused Rahul is acquitted of the offence punishable under Section 21(b) of the NDPS Act. Accused is directed to comply Section 481 BNSS (earlier Section 437-A Cr.P.C.), as per rules.
69. File be consigned to Record Room after due compliance.
Announced in the open Court on 09th March, 2026 (Gajender Singh Nagar) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi