Delhi District Court
State vs Rahis on 14 May, 2025
DLSH010059892017 Page 1 of 68
SC 303/2017
STATE Vs. RAHIS
FIR No.455/2017
PS : SEEMA PURI
U/s.20 (b)(ii)(B) NDPS ACT
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC 303/2017
STATE Vs. RAHIS
FIR No.455/2017
PS : SEEMA PURI
U/s.20 (b)(ii)(B) NDPS ACT
In the matter of :-
State
...(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Rahis
S/o. Sh. Bhure
R/o. 420, Vikram Enclave,
Pappu Colony, Ghaziabad, UP
....accused
(Sh. Udaiveer Singh, LAC)
Date of institution : 14.09.2017
Date when Judgment reserved : 19.04.2025
Date of Judgment : 14.05.2025
Final decision : Convicted u/s.20(b)(ii)(B)
NDPS Act
JUDGMENT:-
1. Accused Rahis is before the Court facing charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that 6.30 Kg Ganja (intermediate quantity) was recovered from his possession on 16.07.2017.
2. In view of alleged recovery of 6.30 Kg Ganja from accused Rahis, FIR No. 455/2017 was lodged at PS Seema Puri on 16.07.2017. After completion of DLSH010059892017 Page 2 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT investigation, charge-sheet was filed on 14.09.2017. Charge was framed on 18.12.2018 for offence u/s.20 NDPS Act, which reads as under :
"That on 16.07.2017 at about 1.30 pm, at Haddi Wala Park, 70 Foota Road, New Seemapuri, Delhi, within the jurisdiction of PS Seemapuri, you were found in possession of 6.30 kg ganja, in contravention of provisions of NDPS Act and thereby you committed an offence punishable under Section 20 NDPS Act, 1985 and within the cognizance of Court of Sessions."
3. In order to prove the aforesaid charge, the prosecution examined 11 witnesses.
The details of the said witnesses along with the documents that they exhibited during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description exhibited PW1 ASI Chap Singh Ex. PW1/A Copy of FIR (Duty Officer) Ex. PW1/B Endorsement on rukka Ex. PW1/C DD No.15A Ex. PW1/D Certificate u/s.65B of IEA PW2 HC Rohtas Ex. PW2/A Entry No.490/2411 in register no.19 from (MHCM) point X to X Ex. PW2/B Entry No.490/2411 in register no.19 from point Y to Y Ex. PW2/C RC No.166/21/17 Ex. PW2/D Receipt from FSL Ex. PW2/E Entry in register no.19 from point Z to Z1 Ex. PW2/F Entry in register no.19 from point Z2 to Z3 PW3 Ct. Kalu Ram (Witness of depositing the case property at FSL) PW4 ASI Anil Kumar Ex. PW4/A Report u/s.57 NDPS Act regarding arrest of (Reader to ACP) accused PW5 HC Sumit Kumar Ex. PW5/1 DD No.25B dtd. 16.07.2017 (witness of Ex. PW5/2 Copy of notice u/s.50 NDPS Act recovery) Ex. PW5/3 Seizure memo of case property Ex. PW5/4 Arrest memo DLSH010059892017 Page 3 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Ex. PW5/5 Personal search memo Ex. PW5/6 Disclosure statement Ex. PW5/7 Original notice u/s.50 NDPS Act Ex. P1 Currency notes recovered from possession of accused Ex. P2 Sample of contraband recovered from accused Ex. P3 Contraband recovered from accused Ex. P3 Samples of contraband recovered from accused PW6 ACP Sanjeev Ex. PW6/A GD No.16A dtd. 16.07.2017 Kumar (SHO -compliance of Sec.55 NDPS Act) PW7 Insp. Gaurav Ex. PW7/A Rukka Chaudhary (IO and recovery witness) PW8 Shailendra Yadav, Ex. PW8/A FSL report dated 31.10.2017 Sr. Scientific Officer (Chemistry), FSL PW9 HC Rahul (recovery witness) PW10 Insp. Vishvendra Ex.PW10/A Site plan (2nd IO) Ex. PW10/B DD No.24A PW11 DCP Hareshwar V. Swami (ACP - regarding compliance u/s.57 NDPS Act)
4. Upon examining the testimony of the aforesaid witnesses, it is found that:-
4.1. On 16.07.2017 PW7 SI Gaurav Chaudhary along with PW5 HC Sumit Kumar and PW9 Ct. Rahul were on patrolling duty vide DD No.25B Ex.PW5/1 and at about 01.15 pm they reached Haddi wala park, 70 foota road, Seemapuri Delhi where they saw the accused coming from the side of DLF mor, having one plastic katta on his back and on seeing the police officials, he DLSH010059892017 Page 4 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT started moving fast towards DLF Mor.
4.2. Finding activity of the accused to be suspicious, the said three police officials apprehended him, who disclosed his name as Rahis to them. PW7 checked the katta that the accused was carrying and it was found containing Ganja like substance. When they enquired from accused that what was in the katta, even accused stated that it was Ganja.
4.3. Thereafter, PW7 asked 4-5 public persons to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses. No notice could be served upon them due to paucity of time. 4.4. PW7 directed PW9 to bring electronic weighing machine from the police station, which he brought. After that PW1 introduced himself and other police officials to accused and apprised him that he was carrying ganja and that his search needs to be conducted and if he wants, before his search is conducted, he can search the members of raiding team and he can be searched in the presence of gazetted officer or magistrate or he can also be taken to them for search. Accused was served with original notice under section 50 of the NDPS Act Ex.PW5/7 and his refusal was recorded on Ex.PW5/2, upon which his thumb impression was taken.
4.5. After his refusal, the plastic katta recovered from him was weighed on weighing machine and it was found to be 6.30 kgs. Two samples of 250 grams each were taken out from it and placed in two separate plastic transparent boxes, which were marked as Marks A1 and A2. The plastic katta was marked as Mark A and all the three parcels were sealed by PW7 with the seal of GC. 4.6. FSL Form was also filled by PW7 and the seal was handed over to PW5.
The pullandas were seized vide seizure-memo Ex.PW5/3 bearing thumb impression of accused and signatures of PW5 and PW9. 4.7. PW7 prepared rukka Ex.PW7/A and handed over the same to PW9 along with carbon copy of seizure-memo, FSL Form and sealed parcels, which PW9 took to the PS. At PS, PW9 handed over the original rukka to the duty officer PW1 ASI Chap Singh, who registered the present FIR Ex.PW1/A and DLSH010059892017 Page 5 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT made endorsement on rukka Ex.PW1/B. 4.8. Further investigation of the case was marked to PW10 SI Vishwender and DD No.15A Ex.PW15/C was lodged with respect to the registration of FIR. PW1 also issued certificate u/s 65B with respect to the computerized FIR which is Ex.PW1/D. 4.9. PW9 handed over the copy of seizure-memo and three parcels to PW6 ACP Sanjeev Kumar, who was SHO PS Seemapuri at that time. PW6 found the three pullandas sealed with the seal of GC and he also affixed his counter- seal of SK on all the three sealed pullandas as well as on the FSL form. He also mentioned the FIR number on the parcels.
4.10. PW6 called PW2 HC Rohtash MHCM in his office and handed over to him copy of seizure-memo as well as three sealed pullandas, which were deposited in malkhana by PW2 vide entry no. 490/2411 in register no. 19 Ex.PW2/A. PW6 also lodged DD No. 16A in this regard which is Ex.PW6/A. 4.11. After registration of FIR, PW10 SI Vishwender along with PW9 reached at the spot, where accused was found present with PW5 and PW7 and there PW7 handed over the original documents prepared by him to PW10, who mentioned the FIR numbers on the said documents.
4.12. PW10 prepared site plan Ex.PW10/A at the instance of PW7 and he thereafter arrested accused vide arrest memo Ex.PW5/4 bearing thumb impression of accused and conducted his personal search vide memo Ex.PW5/5 also bearing his thumb impression, in which besides currency notes of Rs.350/-, original notice under section 50 of the NDPS Act Ex.PW5/7 was recovered.
4.13. Thereafter, disclosure statement of accused was recorded which is Ex.PW5/6 and bears his thumb impression.
4.14. Accused was got medically examined and brought to PS, where DD No.24A Ex.PW10/B was lodged.
4.15. Report under section 57 of the NDPS Act was prepared by PW10 regarding the recovery and arrest of accused, which is Ex.PW4/A and the DLSH010059892017 Page 6 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT same was seen by PW6, who forwarded it to ACP office, where PW4, being Reader in the ACP office, received the same vide diary no. 1646 dtd. 18.07.2017 Ex.PW4/A. The said report was seen and signed by PW11/ACP 4.16. Personal search articles of accused were deposited by PW10 with MHCM on 16.07.2017 vide entry no. 490/2411 Ex.PW2/B. 4.17. On 27.07.2017, on the directions of PW10, sealed container Mark A1 bearing the seal of GC and SK along with FSL form was handed over to PW3 Ct. Kaluram for depositing the same at FSL vide RC No.166/21/17 Ex.PW2/C, which was deposited by PW3 vide acknowledgment Ex.PW2/D and entry in this regard was made in register no. 19 Ex.PW2/E. 4.18. As per the FSL result dtd. 31.10.17 Ex.PW8/A, PW8 Sh. Shailendra Yadav, Senior Scientific Officer, Chemistry, FSL Rohini examined parcel Exhibit A1, which was found to be bearing seals of SK and GC. Upon analysis, the same was found to be 277.77 grams with plastic container and contained Ganja like substance, which was examined by PW8 from 23.10.2017 to 31.10.2017 and upon physical microscopic, TLC examination the contents of Ex.A1, the same was found to be Ganja / Cannabis. The remnants of the substance were placed back in the same plastic box and resealed with the seal of SY FSL DELHI.
4.19. On 14.11.2017, Ct Krishan brought the FSL result from Rohini with respect to which, entry was made in register no. 19 Ex.PW2/F.
5. After closing of the prosecution evidence, statement as well as additional statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed that the person from whose possession the contraband was recovered, was also named as Rahis, but he fled away from the spot and the said contraband was planted upon him. He stated that he was going for buying medicines from medical store, when he was lifted by the police. The accused opted not to lead evidence in his defence.
DLSH010059892017 Page 7 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
6. I have heard the Ld. Additional Public Prosecutor and the Ld. LAC for the accused and perused the record.
Arguments advanced
7. I have heard Sh. Jitender Sharma, Ld. Additional Public Prosecutor and Sh.
Udaiveer Singh, Ld. LAC for accused and perused the record.
8. Ld. Counsel for the accused addressed final arguments on 19.04.2025. The submissions made by the Ld. LAC are as under :
8.1. The investigation has been carried out by PW7 SI Gaurav Chaudhary, who is neither an empowered officer, nor authorised by empowered Gazetted Officer to conduct search and seizure under the NDPS Act. 8.2. That the alleged recovery was made from the accused, but notice u/s.50 NDPS Act was not served upon him, hence, there is non-compliance of Section 50 NDPS Act.
8.3. That notice u/s.50 NDPS Act fails to mention that the accused was informed that he has a right to be taken to'nearest' Magistrate or Gazetted Officer for his search, which is essential in view of judgment titled Mohd. Javed Vs. State, 2023 SCC Online DEL 1827.
8.4. Despite the fact that public persons were present at the spot at the time of alleged apprehension of accused, however, no public person has been cited as witness in the present case.
8.5. There was a CNG pump near the spot, however, no efforts were made by the investigating agency to join any official / employee of CNG pump, during the recovery proceedings.
8.6. Ld. Counsel for the accused brought to the attention of the Court the deposition of PW5 and pointed out that as per the details of the case property produced given in his deposition, there is no mention of the fact that the signatures of the accused were obtained on the plastic katta, in DLSH010059892017 Page 8 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT which the case property was sealed.
8.7. Ld. Counsel argued that no record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW9, who was sent by PW7 for fetching the electronic weighing machine from PS. 8.8. Ld. Counsel for the accused also submitted that PW7 testified that he prepared the seizure memo and notice u/s.50 NDPS Act before the registration of FIR, but upon perusal of contents of seizure memo Ex.
PW5/3 and carbon copy of the notice Ex. PW5/2, it is found that the FIR number is found mentioned on the said documents, which shows that they were prepared after the registration of FIR. In this regard, Ld. Counsel relied upon judgments titled as Prithvi Pal Singh Munna Vs State, 2000 (1) JCC (Delhi) 274 and Giri Raj Vs State, 2000 (83) DLT 201. 8.9. It was further submitted by Ld. Counsel for the accused that seal in the present case after use was handed over by PW7 to PW5 Ct. Sumit and not to any public person, despite the fact that the place of recovery is a busy road and there is a CNG pump nearby. Tampering of the case property by the police officials after the seizure cannot be ruled out, as the seal remained in the possession of the members of police team after the alleged seizure of the contraband.
8.10. It was further submitted by the Ld. Counsel that PW2 MHCM in his deposition stated that the case property was deposited on 16.07.2017 by PW6 / SHO Insp. Sanjeev Kumar, but in register no.19 Ex. PW2/A, the name of the depositor is mentioned as SI Gaurav Chaudhary, who as per the prosecution case was present at the spot at that time. 8.11. Ld. Counsel for accused vehemently argued that as the sampling proceedings in the present case were not conducted by the Magistrate u/s DLSH010059892017 Page 9 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT 52A NDPS Act, hence as per judgment of Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No.1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC 379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, 2024 DHC 5099, the trial stand vitiated, and the accused is entitled to acquittal.
8.12. That there is no compliance of Section 57 NDPS Act as the 1 st IO / PW7 SI Gaurav Chaudhary did not prepare any report w.r.t. the seized contraband as per the mandate of Section 57 NDPS Act. 8.13. The recovery has been planted upon the accused and the accused has nothing to do with the present case.
9. On the same day, Ld. Addl. Public Prosecutor made the following submissions:
9.1. Recovery from the accused has been duly proved by way of evidence of the prosecution witnesses and the same could not be shaken during their cross-examination.
9.2. That as far as the word 'nearest' magistrate or gazetted officer in notice under section 50 of the NDPS Act is concerned, merely because of the same the notice cannot be said to be defective in view of the judgment of Hon'ble Apex Court in case titled State Vs Mohd. Zabir, 2023 SCC Online Delhi 1827.
9.3. That investigating agency made sufficient efforts to join the public witness and it is because of the reluctance of the public witnesses to join the proceedings that no public witness could be joined in investigation.DLSH010059892017 Page 10 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT 9.4. That non-compliance of Section 52A NDPS Act does not lead to automatic acquittal in view of judgment titled Bharat Ambale Vs. The State of Chhattisgarh, 2025 INSC 78.
9.5. That PW7 SI Gaurav Chaudhary is an empowered officer u/s.42 NDPS Act and, therefore, competent to take action u/s.43 NDPS Act.
9.6. That the notice u/s.50 NDPS Act was duly served upon the accused and the original notice was also recovered from his possession during his personal search after his arrest.
9.7. That there is no requirement under the law that the pullandas prepared upon seizure of the case property also require to be signed by the accused.
9.8. That the weighing machine was used by PW7 merely for the purpose of weighing the contraband and as such, the source from which it was obtained, does not assume significance. 9.9. That PW10 had categorically stated in his deposition that the FIR number on the seizure memo and carbon copy of the notice was mentioned by him.
9.10. That the seal after sealing of the case property was duly handed over by PW7 to PW5 and the case property was handed over to PW9, who took the same to PS, hence, there was no possibility of tampering of the case property.
9.11. That in register no.19, in the column relating to the name of depositor, the name of PW7 SI Gaurav Chaudhary as well as that of PW6 Insp. Sanjeev Kumar is mentioned, as PW7 had seized the case property and PW6 had counter-sealed the same and deposited it with MHCM / PW2.
DLSH010059892017 Page 11 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT 9.12. That though, no report u/s.57 NDPS Act was prepared by PW7, but a report mentioning all the relevant details both w.r.t. seizure and arrest was prepared by PW10, which was forwarded by PW6 to the office of PW11 and seen and signed by PW11/ ACP.
9.13. That the prosecution has duly proved all the relevant facts to establish that the contraband was recovered from the possession of the accused and, therefore, accused is liable to be convicted. Legal Requirement to prove the Charges
10. Accused has been charged for offences u/s.20(b)(ii)(B) of NDPS Act. Section 20 NDPS Act reads as under :
"20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-
State, exports inter-State or uses cannabis, shall be punishable,--
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." (emphasis supplied)
11. As far as contravention of the provision is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :DLSH010059892017 Page 12 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT "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)
12. As per the Section, possession of all narcotic drugs is prohibited by Section 8 NDPS Act.
13. The term "narcotic drugs" is defined in Section 2(xiv) as under:-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
14. As per the definition, 'narcotic drug' includes cannabis (hemp). Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
15. The term "cannabis (hemp)" is defined in Section 2(iii) of NDPS Act, as under :
"(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom" (emphasis supplied) DLSH010059892017 Page 13 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
16. "Cannabis (hemp)" besides other things also means Ganja i.e. the flowering and fruiting tops of cannabis plant. In the present case, the prosecution would be required to prove that the recovered substance was Ganja.
17. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;"
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
18. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'Ganja'. As per entry at serial no.55 in the said notification, the small quantity for Ganja is 1000 gms and commercial quantity is 20 Kgs.
19. In order to prove the charges u/s.20(b)(ii)(C) NDPS Act, the prosecution is required to prove the following facts :
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder. (3) That the contraband was Ganja.
(4) That the quantity of the contraband was commercial (i.e more than 1 Kg), for Section 20(b)(ii)(B) NDPS Act.
20. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to DLSH010059892017 Page 14 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously.1 The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
21. In State of Punjab vs. Balbir Singh 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure.1
In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) :
MANU/MH/1838/2002:
2. "In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."DLSH010059892017 Page 15 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT 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 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 DLSH010059892017 Page 16 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT 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."
22. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
23. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:
DLSH010059892017 Page 17 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Discussion on the point of compliance of Section 42 of NDPS ActDPS Act
24. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied) DLSH010059892017 Page 18 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
25. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to record the secret information in writing and send the information so reduced into writing within 72 hours of its receipt to immediate official superior.
26. The present case is a case of chance recovery as no secret information was received before the apprehension of the accused. Accordingly, the recording of secret information in terms of Section 42(1) NDPS Act and forwarding the same to immediate official superior within 72 hours was not required in the present case. Thus, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case.
Whether Section 43 NDPS Act applicable?
27. It may however be noted that the recovery in the present case was made from the accused while he was present on 70 Foota Road, Haddi Wala Park, New Usman Pur, Delhi. For a recovery made from a suspect on a public road, instead of section 42, section 43 comes into play, which is reproduced as under:
43. Power of seizure and arrest in public place.--
Any officer of any of the departments mentioned in section 42 may --
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation:-- For the purposes of this section, the expression "public place"
DLSH010059892017 Page 19 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
28. In State of Punjab Vs Baldev Singh AIR 1999 SC 2378, Hon'ble Constitution Bench of the Apex Court observed as under:
"The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful."
(emphasis supplied)
29. In Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence (2002) 8 SCC 7 Full Bench of Hon'ble Apex Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the Appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:
"In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non- compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant."
30. In Krishna Kanwar (Smt.) Alias Thakuraeen v. State of Rajastha (2004) 2 SCC 6081 a Division Bench of Hon'ble Apex Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the Appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:
"Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, DLSH010059892017 Page 20 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deal with "building, conveyance or enclosed place"
whereas Section 43 deals with power of seizure and arrest in public place. Under sub- section (1) of Section 42 the method to be adopted and the procedure to be followed have been laid down. If the concerned officer has reason to believe from personal knowledge, or information given by any person and has taken down in writing, that any narcotic drugs or substance in respect of which an offence punishable under Chapter IV of the Act has been committed or any other articles which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset, do the acts enumerated in clauses (a), (b), (c) and (d) of sub-section (1).The proviso came into operation if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escaped offender, he may enter and search such building, conveyance or enclosed place any time between sunrise and sunset after recording grounds of his belief. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place."
(emphasis supplied)
31. In Directorate of Revenue and Ors. vs. Mohammed Nisar Holia 2007 INSC 1226 Hon'ble Apex Court observed:
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under Sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code DLSH010059892017 Page 21 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not places."
(emphasis supplied)
32. In S K. Raju vs. State of West Bengal 2018 INSC 780, Full Bench of Hon'ble Apex Court categorically observed that Section 43 is attracted in cases where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. Paras-7 and 8 of the said judgment are reproduced as under :
"7. An empowered officer Under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been DLSH010059892017 Page 22 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT committed in any building, conveyance or an enclosed place, or when a document or an Article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
8. The Appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application."
(emphasis supplied)
33. As per the aforesaid judgments, in case of detention and search of any suspect in any public place, section 42 does not apply, rather section 43 is applicable.
34. In this case, the police apprehended the accused on a public road, and the recovery was made there, not from any building, vehicle, or hidden place. Thus, the recovery took place in a public area, allegedly from the possession of the accused.
35. As per section 43 of NDPS Act, any officer empowered u/s.42 may detain and search any suspect, whom he has reasons to believe to have committed offence under NDPS Act and also seize any narcotic drug or psychotropic substance, if so found in such public place. In this case, it was PW7 SI Gaurav Chaudhary, who apprehended the accused with the contraband. PW7 SI Gaurav Chaudhary, being a Sub-Inspector in Delhi Police, is empowered u/s.42 NDPS Act vide notification dated 14.11.1985 reproduced as under :
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of 1985) read with the Government of India, Ministry of Home Affairs Notification No.S.O. 818(E) dated the 8 th November, 1985 the Administrator of the Union territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi, between sunrise and sunset, to :
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;DLSH010059892017 Page 23 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
(c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; and
(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
36. As per the said notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW7 SI Gaurav Chaudhary, being a Sub-Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act. As per section 43, in view of the aforesaid notification, PW7 SI Gaurav Chaudhary was also empowered to detain and search any suspect found in any public place, whom he had reason to believe to have committed an offence punishable under NDPS Act. Therefore, as per Section 43 of the NDPS Act, PW7 was competent to take further action upon apprehension of accused with Ganja i.e. to proceed with search and seizure.
37. In the opinion of the Court, Section 43 NDPS Act is applicable in the present case, as the recovery was made in a public place (road), and its provisions were duly complied with in the facts of the present case. Moreover, PW7/IO was competent to conduct search and seizure u/s.43 NDPS Act. Discussion on the point of compliance of Section 50 of NDPS Act
38. Section 50 NDPS Act is as under :
"Conditions under which search of persons shall be conducted.DLSH010059892017 Page 24 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
39. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his bodily search was carried out. However, in his statement recorded under Section 313 Cr.P.C., in answer to question no.42, the accused denied that he was given notice u/s.50 NDPS Act and that his refusal was recorded on the same. In his defence, in answer to question no.213, the witness stated that the accused was going to buy medicines from medical store and that the police lifted him and planted upon him the contraband, which was actually recovered from another person, whose name was also Rahis and who had fled away from the spot.
40. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused?
2Dated 04.02.2025 3 Dated 04.02.2025 DLSH010059892017 Page 25 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
41. PW7 SI Gaurav Chaudhary in his deposition categorically stated that after the accused was apprehended, he was informed about the identities of the members of raiding team and he further informed accused that as per secret information, he may be carrying Ganja. He further informed the accused that he has a legal right to search the members of raiding team. He also stated that his search can be conducted in the presence of a Gazetted Officer or a Magistrate, or that he can also be taken to the nearest Gazetted Officer or a Magistrate. PW7 prepared notice u/s.50 of NDPS Act in his handwriting and handed over the same to the accused, who refused to avail his legal rights. As the accused stated that he was illiterate, hence his refusal was recorded by PW7, upon which thumb impression of accused was obtained. Testimony of this witness on this aspect is as under :
"....... I introduced myself and other police officials and apprised the accused that he is carrying ganja and also apprised him about his legal right by sayhig that he can get himself searched as well as he can take search the police team in the presence of any Gazetted officer or the Magistrate or that he can be taken to the gazetted officer or the magistrate for this purpose. However accused refused to get himself searched in the presence of any Gazetted officer or the Magistrate as well as to search the police team in the presence of any Gazetted officer or the Magistrate. The accused was served with the notice under section 50 of the NDPS Act. Accused told that he is illiterate and he refused to exercise the said right and his refusal was written by me on the carbon copy of the notice. The carbon copy of the notice under section 50 NDPS Act already Ex.PW5/2 bears my signature at point C and C1. The denial of the accused is marked 'X to X1. Accused put his left thumb impression at point A on the said notice. ........."
42. The deposition of PW7 as regards compliance of Section 50 NDPS Act is further supported by deposition of PWs 5 & 9.
43. It is noted that all the three witnesses in their examination-in-chief categorically stated that the notice was duly served upon the accused and that DLSH010059892017 Page 26 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT the reply to the notice was written by IO / PW7 on the carbon copy in his own handwriting and thumb impression of the accused was obtained thereon. The Court has gone through the cross-examination of these witnesses, but no material contradictions are found therein.
44. PW5 in his cross-examination reiterated that the legal right of the accused was informed to him.
45. There are no material contradictions in the depositions of these three witnesses, which may create a doubt regarding the service of notice u/s.50 NDPS Act.
46. Further, as the accused has not categorically denied his thumb impression at point A on the carbon copy of the notice Ex. PW5/2, the presence of thumb impression of the accused on the carbon copy of the notice is further evidence of the fact that the notice was duly served upon the accused. Moreover, the original notice was also recovered from accused, when his personal search was carried out upon his arrest by PW10 vide memo Ex. PW5/5. Issue as regards absence of word 'nearest' in the notice :
47. The notices u/s 50 NDPS Act have also been challenged by the Ld. Counsel for the accused on the ground that the said notice Ex. PW5/7 does not mention that the accused was informed that it is his right to be taken to 'nearest' Magistrate or Gazetted Officer for his search, if so, required by him. Therefore, the notice is defective.
48. In this regard Ld. Counsel relied upon judgment titled Mohd. Jabir Vs. State (NCT of Delhi)4 2023 SCC Online Del 1827. However, the judgment in 4 Relevant pars of the judgment:
"42. In the present case, section 50 notice which was served upon the applicant reads as under: "You have the legal right to get yourself searched in the presence of any Gazetted Officer or Magistrate."
43. In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate
44. However, the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.
45. It is correct that both the accused persons were informed that of their rights regarding personal search DLSH010059892017 Page 27 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Mohd Jabir (supra) was challenged in appeal before the Hon'ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd. Jabir {Crl. Appeal No.4921/2024 dated 02.12.2024}. In the said judgment Hon'ble Apex Court, observed as under:
"It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word "unnecessary delay" and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word 'any' does not satisfy the mandate of the 'nearest' Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding."
(emphasis supplied)
49. Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
50. In view of the testimonies of above witnesses, namely, PW5, PW7 and PW9, the prosecution proved that the accused was duly served with the notice under Section 50 of the NDPS Act before his bodily search and that the provisions of Section 50 NDPS Act were duly complied with.
Whether compliance of Section 50 NDPS was required in facts of this case?
51. It may be noted that, though the prosecution proved beyond reasonable doubt that the notice u/s.50 NDPS Act was duly served upon accused, however, no contraband was recovered from his bodily search, rather, the contraband was found to be in plastic katta, which the accused was carrying. Therefore, but the same was not informed as per the strict provisions of section 50. .........
47. As is clear from the above, the emphasis on the word "nearest" is important since it ensures independence. In deviating from the provisions as laid down in section 50, the IO practiced a third option of having the search conducted by someone who was part of the operation of this particular alleged drug seizure. The IO practiced a third option which is unknown to law."
DLSH010059892017 Page 28 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT another question that arises before the court is: Whether compliance of Section 50 NDPS Act was required in the present case as the recovery was effected from the plastic katta, being carried by accused and not from the person of accused?
52. It may be noted that from the bodily search of the accused, no contraband was recovered. The contraband was found in the plastic katta, being carried by the accused. As regards recovery made from bag, briefcase or vehicle of the suspect is concerned, it has been observed by the Hon'ble Apex Court that the provisions of section 50 NDPS Act do not apply to recoveries other than those made from the person of the accused.
53. In this regard, Hon'ble Apex Court in case titled as State of Himachal Pradesh and Ors. vs. Pawan Kumar and Ors. 2005 INSC 1935, has observed as under:
"8. The dictionary meaning of the word "person" is as under :
Chambers's An individual; a living soul; a human
Dictionary : being;
b: the outward appearance, & c : bodily form; a
distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of.
Webster's Third International Dictionary An individual human being; a New: human body as distinguished from an animal or thing; an individual having a specified kind of bodily appearance:
the body of a human being as presented to public view normally with its appropriate coverings and clothings: a living individual unit a being possessing or forming the subject of personality.
Black's Law In general usage, a human being (i.e. natural person), Dictionary: though by statute term may include labour organizations, partnerships, associations, corporation.
Law Lexicon: The expression 'person' is a noun according to grammar by P. Ramanatha and it means a character represented as on the stage, a Aiyar human being; a self-conscious personality."5
Three Judges Bench DLSH010059892017 Page 29 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
9. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no DLSH010059892017 Page 30 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."
(emphasis supplied)
54. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr.L.J 1384, four gunny bags were found in an auto rickshaw which the suspect was driving and there was no other person present. The argument based on non- compliance of Section 50, as explained in the case of Baldev Singh 6, was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused.
55. In Madan Lal v. State of H.P. MANU/SC/0599/2003 it was held that Section 50 would apply in the case of search of a person as contrasted to search of vehicles, premises or articles.
56. In Gurbax Singh v. State of Haryana 2001 Cr.L.J 1166, suspect got down from a train carrying a Katta (gunny bag) on his shoulder. It was held that Section 50 was not applicable.
57. In State of Punjab v. Makhan Singh MANU/SC/0181/2004, the suspect was apprehended while alighting from a bus with a tin box in his hand in which contraband was found. The High Court acquitted the accused on account of non-compliance of Section 50. Hon'ble Apex Court while holding that 6 State of Punjab vs. Baldev Singh and Ors. (21.07.1999 - Constitution Bench) : MANU/SC/0981/1999 :
1999 INSC 282.DLSH010059892017 Page 31 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Section 50 will not apply, reversed the judgment of the High Court and the accused was convicted.
58. In V. Kanhaiya Lal v. State of M.P. (2000)10 SCC 380, one kg. of opium was found in a bag which was being carried by the suspect. Argument seeking acquittal on the ground of noncompliance of section 50 NDPS Act was rejected on the ground that it was not a case of search of the person of the accused.
59. In Birakishore Kar v. State of Orissa AIR 2000 SC 3626, suspect was found lying on a plastic bag in a train compartment. Argument that compliance of section 50 was mandatory was rejected on the ground that the accused was sitting on the plastic bag and it was not a case of the search of the person of the accused.
60. In Krishna Kanwar v. State of Rajasthan 2004:INSC:61 it was held that Section 50 applies where search has to be in relation to a person as contrasted to search of premises, vehicles, articles or bag.
61. In Sarjudas v. State of Gujarat 2000 Cr.L.J 509 suspect were riding a scooter on which a bag was hanging in which charas was found. Section 50 was held not applicable as it was not a case where the person of the accused was searched.
62. In Saikou Jabbi v. State of Maharashtra MANU/SC/0991/2003, heroin was found in a bag being carried by suspect. It was held that Section 50 was not applicable as it applies to search of a person.
63. It may be argued that in a case where the suspect as well as the bag he is carrying, is searched, compliance of Section 50 is essential in view of judgment of the Hon'ble Apex Court in State of Rajasthan Vs Parmanand & Anr, (2014) 2 RCR (Criminal) 40 ; Dilip & Anr. Vs. State of MP, AIR 2007 SC 369 and Union of India Vs. Shah Alam, AIR 2010 SC 1785. The relevant DLSH010059892017 Page 32 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT paras i.e paras no.9 to 12 of the judgment in Parmanand (supra) are reproduced as under :
"9. In this case, the conviction is solely based on recovery of opium from the bag of Respondent No. 1-Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra MANU/SC/0662/1999 : (1999) 8 SCC 257, this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar MANU/SC/0272/2005 : (2005) 4 SCC 350, three-Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by Respondent No. 1-Parmanand.
10. In Dilip and Anr. v. State of Madhya Pradesh MANU/SC/8711/2006 : (2007) 1 SCC 450, on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.
11. In Union of India v. Shah Alam MANU/SC/1065/2009 : (2009) 16 SCC 644, heroin was first recovered from the bags carried by the Respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the Respondents on that ground.
12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent No. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No. 2 Surajmal was also conducted. Therefore, in DLSH010059892017 Page 33 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
(emphasis supplied)
64. However, in this regard, the Court would like to refer to a Full Bench decision of the Hon'ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019 INSC 1145. In the said case, the recovery was made from Qualis car 7, in which the accused persons were travelling and the question regarding the applicability of Section 50 NDPS Act, in case of such recovery came up for consideration before the Hon'ble Apex Court. Hon'ble Apex Court while referring to the Constitution Bench Decision in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and while noting the decision in Dilip (supra) categorically overruled the law laid down in Dilip (supra), while holding that the law laid down in the said case is opposed to the law laid down by the Constitution Bench in Baldev (supra). Paras 16 to 19 of the judgment are reproduced as under :
"16. As regards applicability of the requirements Under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based "only"
on the basis of possession of an illicit Article recovered from personal search in violation of the requirements Under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.
7Like the recovery has been made from the plastic katta being carried by accused in the present case.
DLSH010059892017 Page 34 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the Accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with . In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by Accused-Baljinder Singh with the other Accused accompanying him, their presence and possession of the contraband material stood completely established."
65. In view of the law laid down in Baldev (supra) and Baljinder (supra) as well as other judgments cited above, it is held that the compliance of Section 50 NDPS Act is not mandatory in the present case, as the recovery was effected from the plastic katta, being carried by accused and not from his bodily search.
66. Based on the testimonies of witnesses PW5, PW7 & PW9, it has been established that the accused was duly served with notice under Section 50 of the NDPS Act before his bodily search was conducted and there was no violation of this mandatory provision. Additionally, according to the observations in the referenced judgments, compliance with Section 50 is not required for recovery from the plastic katta, being carried by accused. Discussions on non-joining of the public witnesses
67. During course of arguments, Ld. LAC submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses. Ld. Counsel submitted that the recovery has been effected from a public place surrounded by residential and commercial area near a CNG Pump and Haddi Wala Park, but despite that, not even one public witness was joined during the course of investigation and no notice was served to public persons, who refused to join investigation.
DLSH010059892017 Page 35 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
68. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW7 SI Gaurav Chaudhary (1 st IO) made sincere efforts to join public witnesses, but none agreed.
69. In this regard, PW7 deposed that he made efforts to join 4-5 public persons after the accused was apprehended, but none of them agreed to join investigation and left without disclosing their names and addresses. Even the other members of the raiding team i.e. PW5 & PW9 stated that efforts were made by the IO to join 4-5 public persons, but none agreed to join the investigation.
70. In the cross-examination, PW5 admitted that Haddi Wala Park was at a distance of 50-60 meters and that there was also a CNG Pump near the said park, which was under construction, but no public persons could be joined in the investigation. He stated that the laborers working at the CNG Pump were not asked by the IO to join investigation. Similarly, PW7 also admitted the aforesaid facts in his cross-examination.
71. The Court while considering as to why the public persons refuse to join recovery proceedings, needs to consider the perspective of an ordinary individual who being not familiar with legal procedures, may fear retaliation from drug traffickers in cases where they serve as a witness, and may face significant inconvenience without any personal gain, instead possibly losing time, money, and peace of mind. Due to these challenges, it is uncommon for people to volunteer as witnesses, especially in cases involving drugs, trafficking, and smuggling, which often involve organized criminal groups/cartels.
72. Therefore, if efforts to include a public witness have been documented but were unsuccessful, the absence of an independent witness does not undermine the prosecution's case. In this regard, this court is supported by the case law DLSH010059892017 Page 36 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT i.e. Ajmer Singh vs. State of Haryana 2010 (2) SCR 785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
73. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal AIRONLINE 2012 SC 728, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
74. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either DLSH010059892017 Page 37 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT interested in investigating or the prosecuting agency'.
75. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal and Ors. vs. State MANU/DE/3428/2016 : 2016:DHC:8131 while observing that recovery cannot be doubted for the reason of non-joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop Vs. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh MANU/SC/0503/1988 : 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
20. In 'Ramjee Rai and others v. State of Bihar', (2006) 13 SCC 229, it has been opined as follows:
"26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."
21. Resultantly, no adverse inference can be drawn against the prosecution on account of the inability of the raiding party to join public witnesses. It is not as if no effort was made by them in this regard. They did make efforts at several places but no member of the public agreed to be associated for various reasons.."
76. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non-joining of independent witness as it is clear that sufficient efforts were made by PW7 SI Gaurav Chaudhary to join public witnesses in DLSH010059892017 Page 38 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT investigation. Moreover, no animosity between the accused persons and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
Discussion on the point of recovery of contraband
77. On 16.07.2017, PW7 SI Gaurav Chaudhary along with PW5 HC Sumit Kumar and PW9 Ct. Rahul were on patrolling duty vide DD No.25B Ex.PW5/1 and at about 01.15 pm they reached Haddi wala park, 70 foota road, Seemapuri Delhi where they saw the accused coming from the side of DLF mor, having one plastic katta on his back. On seeing the police officials, the accused started moving fast towards DLF Mor. Finding activity of the accused to be suspicious, the said three police officials apprehended the accused, who disclosed his name as Rahis to them. PW7 checked the katta that the accused was carrying and it was found containing Ganja like substance. When they enquired from accused that what was in the katta, even accused stated that it was Ganja. Thereafter, PW7 asked 4-5 public persons to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses. No notice could be served upon them due to paucity of time. PW7 directed PW9 to bring electronic weighing machine from the police station, which he brought. After that PW1 introduced himself and other police officials to accused and apprised him that he was carrying ganja and that his search needs to be conducted and if he wants, before his search is conducted, he can search the members of raiding team and he can be searched in the presence of gazetted officer or magistrate or he can also be taken to them for search. Accused was served with original notice under section 50 of the NDPS Act Ex.PW5/7 and his refusal was recorded on Ex.PW5/2, upon which his thumb impression was taken. After his refusal the plastic katta recovered from him was weighed on weighing machine and it DLSH010059892017 Page 39 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT was found to be 6.30 kgs. Two samples of 250 grams each were taken out from it and placed in two separate plastic transparent boxes, which were marked as Marks A1 and A2. The plastic katta was marked as Mark A and all the three parcels were sealed by PW7 with the seal of GC. FSL Form was also filled by PW7 and the seal was handed over to PW5. The pullandas were seized vide seizure-memo Ex.PW5/3 bearing thumb impression of accused and signatures of PW5 and PW9. PW7 prepared rukka Ex.PW7/A and handed over the same to PW9 along with carbon copy of seizure-memo, FSL Form and sealed parcels, which PW9 took to the PS. At police station PW9 handed over the original rukka to the duty officer PW1 ASI Chap Singh, who registered the present FIR Ex.PW1/A and made endorsement on rukka ExPW1/B.
78. In order to prove the recovery, the first IO was examined by the prosecution as PW7 (SI Gaurav Chaudhary). The said witness in his examination-in-chief as regards the recovery, testified as under :
"On 16.07.2017, I was posted as SI at PS Seemapuri. On that day I was on patrolling duty in the area along with Ct. Sumit and Ct. Rahul vide DD No.25B Ex.PW5/1. During patrolling at around 1.15 pm, we reached at Haddi Wala Park, 70 foota Road, Seemapuri, Delhi and there we saw that one person was coming from the side of DLF Mor and is hiding towards under construction CNG pump and he is having one plastic katta on his back on the right side. On seeing us, he started moving in fast manner towards DLF mor. We found his activity suspicious and on the basis of suspicion the said person was apprehended by us and on being asked the said person revealed his name as Rahis, the accused is present in the court today (witness has correctly identified the accused). Thereafter I checked the katta which he was carrying and the katta was tied with the white cloth and during checking it was smelling like ganja. After that accused was asked about the material and he also stated that it is ganja. I asked 4-5 public persons to join the investigation but none agreed to join the investigation and left without disclosing their names and addresses and also by giving reasonable excuses. No notice could be served upon them due to paucity of time.
I instructed Ct. Rahul to bring the electronic weighing machine from PS. Ct. Rahul went to PS and brought electronic weighing machine and handed over the same to me.
.....DLSH010059892017 Page 40 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT The above mentioned plastic katta which was recovered from accused Rahis was measured on the electronic weighing machine and it was found to be 6.30 kg. Thereafter two samples measuring 250 grams each were taken and put into two separate plastic transparent box and the same were affixed with the doctor tape. The pullandas were given mark A1 and A2 and the plastic katta was given mark A. The two transparent boxes containing the sample were also sealed with the seal of GC and the plastic katta was also sealed with the seal of GC. FSL form was filled up by me. Seal after use was handed over to Ct. Sumit. Thereafter I seized the aforesaid case property vide seizure memo already Ex.PW5/3 bearing my signatures at point B."
79. PW5 Ct. Sumit and PW9 Ct. Rahul also deposed on the same lines in their examination-in-chief and corroborated the testimony of PW7 SI Gaurav Chaudhary. Thus, three prosecution witnesses i.e. PW5, PW7 & PW9, who are also witnesses to the seizure memo Ex. PW5/3 deposed on the same lines regarding the recovery of 6.3 Kg of Ganja from the plastic katta being carried by the accused.
80. The depositions of the aforesaid witnesses regarding the recovery made from the accused, has been challenged by the Ld. Counsel for the accused during the course of arguments. The arguments raised by Ld. Counsel for the accused are discussed herein below.
81. As regards the production of case property and proving that the contraband seized was produced before the Court, Ld. Counsel brought to the attention of the Court the deposition of PW5, specifically, the portion when the case property was produced, to show that as per the details of the case property produced given in his deposition, there is no mention of the fact that the signatures of the accused were obtained on the plastic katta, in which the case property was sealed. He submitted that the signatures of the accused are taken on the seizure memo as well as other documents, but in order to connect the physical case property produced before the Court to the accused, it is essential that the said case property should also bear the signatures of the accused.
DLSH010059892017 Page 41 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT It may be pointed out that the case property upon being seized vide seizure memo Ex. PW5/3 was taken to the PS and produced before PW6 Insp. Sanjeev Kumar, SHO PS Seema Puri, who checked the three parcels Mark A, A1 and A2 and found them to be bearing the seals of GC. He not only affixed his counter seal of SK on the three parcels but also mentioned the FIR number upon all of them and also signed the three parcels. As per the FSL result Ex. PW8/A, the parcel Mark A1 was found to be bearing two seals of SK and two seals of GC. Further, when the remaining two parcels were produced before the Court during the deposition of PW5 on 08.05.2024, it was found that on both the parcels Mark A and A2, besides the FIR number and DD number, there were signatures of PW7 Gaurav Chaudhary as well as the SHO / PW6. Even in the pulanda which was sealed with the seal of FSL (FSL SY DELHI), the container was found bearing the FIR number, DD number, besides the signature of PW7 SI Gaurav Chaudhary and counter signatures of SHO / PW6.
Therefore, it can be seen that the case property and samples could be duly identified from the particulars mentioned on the katta and the samples, in which they were seized at the spot. There is no requirement to take the signatures of the accused also on the seized contraband. The requirement of law is that the case property should be duly sealed at the spot and additional counter seal need to be placed by SHO when the case property is produced before him, which was done in the present case.
82. Ld. Counsel argued that no record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW9, who was sent by PW7 for fetching the electronic weighing machine from PS. It could not be proved by the prosecution that the weighing machine used to weigh the contraband at the spot was on that day handed over to PW9 for the purpose of investigation.
DLSH010059892017 Page 42 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT On this aspect it may be pointed out that the limited purpose of a weighing machine is to weigh the contraband. It is different from a testing kit, which has chemicals to test the contraband. Even if the IO weighs the contraband on a weighing scale owned by him or arranged by him from any shop, it does not make much difference, as the limited purpose of a weighing machine is to ascertain the weight of the contraband recovered at the spot. It may be argued that the weighing machine needs to be calibrated and therefore should be arranged from the office only, but, in the facts of the present case, where the weight of the contraband is in KGs and not grams, even that does not make much difference. On 16.07.2017, the weight of the contraband at the spot was found to be 6.3 kgs, from which two samples of 250 gms each were drawn (Mark A1 and A2). The sample Mark A1 was sent to FSL for analysis and as per the report Ex. PW8/A, the said sample along with the plastic container was found to weigh 277.77 gms. Thus, there is no major difference in the weight of the sample of contraband taken at the spot and as weighed at the time of analysis of the sample at FSL. In this respect, the Court would like to refer to judgment titled as Bharat Amble Vs. State Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No.250/25 of Hon'ble Apex Court, wherein it was observed by the Hon'ble Apex Court that hyper-technical view should not be taken by the Court while looking into discrepancies like slight difference in weight of the contraband as more often than not an officer in a public place would not be carrying a good scale with him. The relevant portion of judgment is reproduced as under:
"It is for the Courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and evidence adduced. At the same time, we may caution the Courts, not to be hyper- technical whilst looking into the discrepancies that may exist, like slight difference in weight, colour or numbering of the sample etc. The Court may DLSH010059892017 Page 43 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt of false impression of illegal possession or recovery, or to overstate of inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seizure, the quality of evidence on record etc."
(emphasis supplied)
83. Ld. Counsel for the accused also submitted that PW7 testified that he prepared the seizure memo before the registration of FIR, but upon perusal of contents of seizure memo Ex. PW5/3, it is found that the FIR number is found mentioned at the top of the seizure memo, which shows that the said seizure memo was prepared after the registration of FIR. Ld. Counsel submitted that not only in the seizure memo, but also in the notice u/s.50 NDPS Act, there is mention of the FIR number, which fact remains unexplained.
Perusal of the record reveals that the FIR number is mentioned on the seizure memo Ex. PW5/3, which as per the prosecution was prepared before the registration of the FIR. Perusal of the seizure memo would itself show that the said FIR number is mentioned at the top of the seizure memo, but under the DD number (DD No.25B dated 16.07.2017 PS Seema Puri Delhi). Further, in the carbon copy of the notice (Ex. PW5/2), the FIR number is written with pen and is not a carbon imprint.
It may be noted that PW10 (2nd IO) in his examination-in-chief categorically stated that when he reached the spot, PW7 SI Gaurav Chaudhary handed over the documents prepared by him to PW10 and that PW10 mentioned the FIR number on the said documents. Thus, PW10 clarified in his examination-in-chief itself as to how and by whom, the FIR DLSH010059892017 Page 44 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT number was mentioned on the two documents prepared before registration of the FIR i.e. seizure memo Ex. PW5/3 and carbon copy of notice u/s.50 NDPS Act Ex. PW5/2. For reference, the relevant portion of his deposition is reproduced as under :
"On 16.07.2017 I was posted at PS Seemapuri as SI. On that day after registration of the case, the original rukka and copy of FIR was handed over to me by Ct. Rahul. I along with Ct. Rahul reached at the spot i.e. Haddiwala park, 70 foota road, New Seemapuri, Delhi where SI Gaurav Chaudahry and Ct. Sumit met me along with accused. SI Gaurav Chaudhary handed over the documents prepared by him to me. I put the FIR number on the documents."
(emphasis supplied) In support of the aforesaid argument, Ld. Counsel for the accused relied upon two judgments of Hon'ble Delhi High Court in Prithvi Pal Singh Munna Vs State, 2000 (1) JCC (Delhi) 274 and Giri Raj Vs State, 2000 (83) DLT 201. In both the said cases, it was categorically observed that " the prosecution has not offered any explanation"8, regarding the mentioning of the FIR at the top of the documents which were prepared before the registration of the FIR. However, in the present case, PW10 has categorically stated in his deposition, as stated above that he had mentioned the FIR number on the documents prepared by PW7. Thus, for the reasons mentioned above, the aforesaid argument of Ld. Counsel is found to be devoid of merits.
84. It was further submitted by Ld. Counsel for the accused that seal in the present case after use was handed over by PW7 to PW5 Ct. Sumit and not to any public person, despite the fact that the place of recovery is a busy road and there is a CNG pump nearby. Tampering of the case property by the police officials after the seizure cannot be ruled out, as the seal remained in the possession of the members of police team after the alleged seizure of the contraband.
8Para 10 of Prithvi Pal Singh Munna and Para 5 of Giriraj DLSH010059892017 Page 45 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT As far as the said argument is concerned, the issue as regards the joining of public witness has been separately discussed and it has been held while discussing the said issue that despite efforts having been made by PW7 SI Gaurav Chaudhary to join public witness, no public witness joined the proceedings. It may be noted that as per the evidence of PW5, PW7 and PW9, the seal after use was handed over by PW7 to PW5 and the case property was handed over to PW9, who immediately left for the PS along with the case property and the rukka. Thus, the case property which was sealed at the spot with the seal of GC by PW7, was taken away from the spot by PW9, whereas the seal remained at the spot in the hands of PW5. As per the rukka Ex. PW7/A, PW9 left the spot along with the rukka at about 4.15 p.m. and as per the deposition of PW1 / Duty Officer, PW9 came to him in DO Room and handed over the rukka to him for registration of FIR at 4.35 p.m. Therefore, the arrival of PW9 at the PS is confirmed by the entry in FIR No.455/3027 Ex. PW1/A, to the effect that the rukka reached the Duty Officer at 4.35 p.m., thereby making it clear that there was not sufficient time or opportunity, besides the motive, with PW9 to tamper with the case property. The seal at that time was left at the spot with PW5 and by the time, this official went back, an additional seal on the case property was placed by PW6 / SHO, which is the seal of SK. Hence, in the opinion of the Court, the handing over of the seal after use by PW7 to PW5, does not create any doubt as regards tampering of the case property by PW9 or by any other member of the police team. Further, as stated earlier, the issue regarding non-joining of public witnesses, has been dealt with separately in this judgment.
85. It was further submitted by the Ld. Counsel that PW2 MHCM in his deposition stated that the case property was deposited on 16.07.2017 by PW6 / SHO Insp. Sanjeev Kumar, but in register no.19 Ex. PW2/A, the name DLSH010059892017 Page 46 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT of the depositor is mentioned as SI Gaurav Chaudhary, who as per the prosecution case was present at the spot at that time. The said argument is found to be devoid of merits as in the present case, in register no.19, the details of the case property have been duly mentioned in the relevant columns (as the details of the seizure memo have been reproduced therein) and in the name of depositor, besides the name of SI Gaurav Chaudhary, there is an entry made by PW6 himself, to the effect that he was the depositor of the case property. The signatures of PW6 / SHO along with his designation and date is duly mentioned by him in his own handwriting in the column relating to name of depositor.
86. Accordingly, in the opinion of the Court, in view of the deposition of PW5, PW7 & PW9 and in view of the other circumstantial evidence regarding affixing of the counter seal by PW6, deposit of the case property with PW2, registration of FIR by PW1, the prosecution has duly proved the recovery of the contraband from the possession of the accused. The arguments addressed by Ld. Counsel challenging the recovery have been discussed and found to be devoid of merits. It may be noted at this stage that the prosecution though, required to prove the case against the accused beyond reasonable doubt, is not required to prove the case beyond any fathomable, unrealistic iota of doubt. In the opinion of the Court, there is no reasonable doubt to disbelieve the fact that the recovery of the contraband was made from the accused. Compliance under section 52A NDPS Act
87. Ld. Counsel for accused vehemently argued that as the sampling proceedings in the present case were not conducted by the Magistrate u/s 52A NDPS Act, hence as per judgment of Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No.1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC 379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, DLSH010059892017 Page 47 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT 2024 DHC 5099, the trial stand vitiated, and the accused is entitled to acquittal.
88. Admittedly, sampling in the present case was done at the spot and not before the Magistrate as per section 52A NDPS Act. The question before the court is whether the entire trial stand vitiated in view of the said non-compliance?
89. In Mohan Lal (supra), Hon'ble Apex Court while discussing the ambit and purport of section 52 A NDPS Act, observed as under:-
"16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
........
19. [...] There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the DLSH010059892017 Page 48 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."
90. In Yusuf @ Asif (supra), Hon'ble Apex Court while setting aside the conviction of appellants therein, relied upon Mohan Lal (supra) and observed as under :
"10. [...] it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act. xxx xxx xxx
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. xxx xxx xxx
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest DLSH010059892017 Page 49 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
91. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif, 2024 INSC 10459, discussed the effect of non-compliance of section 52A NDPS Act on the outcome of trial and summarized the observations in para 39 as under:
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-
section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
9Judgment dated 20 December 2024.
DLSH010059892017 Page 50 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."
92. In a very recent judgment of Bharat Aambale (supra), Hon'ble Apex Court answered the question whether non-compliance of section 52A NDPS Act leads to automatic acquittal. This was the only ground on which the conviction upheld by Hon'ble High Court was under challenged before the Apex court. Relevant paras indicating the issue directly before the Hon'ble Court are as under:
"3. The only contention raised before us by the learned counsel appearing for the appellant herein is that the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS Act.
4. The learned counsel appearing for the appellant placed strong reliance on the decision of this Court rendered in the case of Union of India v. Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good his submission that non- compliance of Section 52A of the NDPS Act along with the relevant rules, would vitiate the entire trial and the conviction."
93. Hon'ble Apex Court discussed at length Mohan Lal (supra), Yusuf @ Asif (supra) and several other judgments and discussed the outcome thereof in the following paras:
"24.What is discernible from the various decisions referred to by us, is that mere non- compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not by itself render the trial vitiated or into an automatic acquittal. In all instances where this Court set-aside the order of conviction, it did so not solely for the reason that there was a violation of Section 52A but because of and on the strength of the other discrepancies or shortcomings in the prosecution's case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done.DLSH010059892017 Page 51 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place.
27.In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice- verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS DLSH010059892017 Page 52 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc.
31.At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the DLSH010059892017 Page 53 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Evidence Act that governs how seizure or recovery may be proved.
32.Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra).
33.Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking.
94. The Hon'ble Court finally summarized the law on the subject in para 50 as under:
"50.We summarize our final conclusion as under: -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate.
Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. (III) Any inventory, photographs or samples of seized substance prepared in DLSH010059892017 Page 54 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be DLSH010059892017 Page 55 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT beyond a reasonable doubt." (emphasis supplied)
95. Though, in the present case there is no compliance of section 52A NDPS Act, as the sampling proceedings were done by the IO at the spot, however, in view of the judgment in Kashif (supra) and Bhart Ambale (supra), the said fact by itself does not vitiate the trial. As held by the Hon'ble Court in absence of compliance u/s 52A NDPS Act the onus is upon the prosecution to prove by cogent evidence that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
96. As per FSL report Ex. PW8/A, proved by PW8 Shailendra Yadav, Senior Scientific Officer, (Chemistry) FSL Rohini, parcel Mark A1 was found bearing two seals of SK and two seals of GC. Thus, as per the FSL result Ex. PW8/A, the sample of the case property (one pulanda) which was sealed at the spot with the seal of GC and was counter sealed by SHO Insp. Sanjeev Kumar with his seal of SK, was received in the same condition with all the seals intact in the FSL on 27.07.2017.
97. It may be noted that the case property in original as primary evidence was produced during the testimony of PW5 and opened in the Court. The sample Mark A1 was found to be bearing the seal of FSL SY DELHI, whereas Parcels Marks A and A2 were found bearing the seals of SK and GC. The observation of the Court at the time of opening the case property during the testimony of PW5 is relevant to establish that the seal of SK and GC remained intact throughout the proceedings till the time the sample was analysed by the FSL and the remaining sample and contraband in pulanda / Parcels Mark A and A2 were opened in the Court. The said portion of the testimony is reproduced as under:
"At this stage, MHCM has produced one stapled white colour envelope bearing the details of the present case i.e. FIR NO.455/17, dt. 16.07.2017 us 20 NDPS Act and with the permission of the court the same is opened and it was found to be containing DLSH010059892017 Page 56 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT Rs. 360/- (three notes of Rs.100/-, one note of Rs.50/-and one note of Rs.10/-) and one original notice under section 50 of the NDPS Act. The original notice under section 50 of the NDPS Act is taken on record and the same is Ex.PW5/7 which bears my name at point A. The currency notes are shown to the witness and witness correctly identified them as the same which were recovered from the possession of accused during his personal search. The same are Ex. P-1 (colly.).
At this stage, MHCM has produced one plastic container covered with doctor tape and on the doctor tape the details of the present case are mentioned i.e. FIR NO.455/17, dt. 16.07.2017 PS Seemapuri, u/s 20 NDPS Act and DD No.25B dt. 16.07.2017 PS Seemapuri and signature of SI Gaurav Chaudhary along with his name and the same is countersigned by the SHO concerned. The above mentioned containers bears three seals of GC and three seals of SK and having mark A2. All seals are intact and visible. With the permission of the court, the seals are broken in the court today and the container is opened and it was found to be containing some dried material (powder like though not exactly powder) of light brown colour along with some stems. The same is shown to the witness. Witness correctly identified the same. The transparent box containing the contraband is now Ex. P-2.
At this stage, MHCM produced one white cloth pullanda and details of the present case i.e. FIR NO.455/17, dt.16.07.2017 PS Seemapuri, u/s 20 NDPS Act and DD No.25B dt.16.07.2017 PS Seemapuri and signature of SI Gaurav Chaudhary along with his name and the same is countersigned by the SHO concerned. The pullanda bears the seals SK as well as GC. The seal are duly intact and visible. The said pullanda is stitched with the white thread. The Same is opened with the permission of the court and it was found to be containing one plastic katta and in the plastic katta recovered contraband in the form of leaves and branches i.e. ganja. The same is shown to the witness. Witness correctly identified the same and stated it was the same contraband which was recovered from the possession of accused. The case property i.e. ganja along with katta is Ex.P-3.
At this stage, MCM has produced the case property i.e. one yellow envelope bearing the details of the present case parcel Al duly sealed with the seal of FSL SY DELHI . The seals are duly intact and the plastic container covered with doctor tape and on the doctor tape the details of the present case are mentioned i.e. FIR NO.455/17, dt. 16.07.2017 PS Seemapuri, u/s.20 NDPS Act and DD No.25B dt. 16.07.2017 PS Seemapuri and signature of SI Gaurav Chaudhary along with his name and the same is countersigned by the SHO concerned. The above mentioned containers bears three seals of GC and three seals of SK and having mark A1. With the permission of the court, the seals are broken in the court today and the container is opened and it was found to be containing some dried material of light brown colour along with some stems. The same is shown to the weighing witness. Witness correctly identified the same. The transparent box containing the contraband is now Ex. P-3."DLSH010059892017 Page 57 of 68 SC 303/2017
STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT (emphasis supplied)
98. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of GC by PW7 SI Gaurav Chaudhary and was further sealed at the PS by SHO Insp. Sanjeev Kumar with the seal of SK was found intact by Sh. Shailendra Yadav, Senior Scientific Officer (Chemistry) FSL on the sample Mark A1, which he analyzed in terms of report Ex. PW8/A and the remaining pulandas / Parcels Mark A and A2 were found intact bearing the seal of SK and GC, when the same were produced before the Court and exhibited as Exs. P2 and P3 on 08.05.2024.
99. Accordingly, the prosecution proved beyond reasonable doubt that non-
compliance of section 52A NDPS Act does not affect its case against the accused, as the case property seized at the spot was produced as primary evidence before the court with the seals intact and while the said case property remained in police custody, it was not tampered with. Compliance u/s.55 of NDPS Act
100. As per the prosecution case, PW7 SI Gaurav Chaudhary, the first IO of the case after the recovery was affected from the possession of the accused, seized the same vide seizure memo Ex.PW5/3. In total one packet/katta of ganja was recovered from the accused weighing 6.30 kg. Two samples of 250 gms each were taken out and put in two separate plastic transparent box and were sealed with the doctor's tape. The samples were given Mark A1 and A2 and plastice katta was given Mark A. All the three pulandas were sealed with the seal of GC and seized vide seizure memo Ex. PW5/3. The rukka as well as the case property and copy of seizure memo was handed over to PW9 Ct. Rahul, who took the same to the police station and handed over the three pullandas to the SHO / PW6 Insp. Sanjeev Kumar.
101. PW6 Inspector Sanjeev Kumar, SHO, upon receiving the copy of seizure-
memo and three parcels, checked the parcels and found them to be sealed DLSH010059892017 Page 58 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT with the seal of GC and placed his counter seal of SK on all the pullandas and FSL Form. After confirming the FIR number from the Duty Officer, PW1 ASI Chap Singh, he mentioned the same on the pullandas/parcels, FSL Form and copy of seizure-memo.
102. PW6 Inspector Sanjeev Kumar thereafter, handed over the sealed parcel and copy of seizure-memo to MHCM HC Rohtash (PW2), who deposited the said parcels in Malkhana and made entry in this regard at serial no.490/2411 in register no.19 Ex.PW2/A, which was also countersigned by the SHO/PW6. In this regard, PW6 also got recorded GD No.16A dated 16.07.2017 Ex. PW6/A.
103. Thus, PW6 upon receiving the sealed parcel duly affixed his counter-seal of SK on the said pullandas already bearing the seal of GC. The deposition of PW6 in this regard is as under : -
"On 16.07.2017, I was posted at PS Seemapuri as SHO. At about 4.45 pm, Ct. Rahul Tyagi came to my office and handed over to me three sealed parcels sealed with the seal of 'GC' and having mark A, A1 and A2 along with FSL Form having seal of GC and carbon copy of seizure memo. I affixed my seal on the said three plastic boxes with my seal of SK and affixed my sample seal SK on FSL Form. After confirming the FIR Number from the duty officer, I wrote the same on all the parcels, FSL Form and copy of seizure memo. I also signed all the three parcels, FSL Form and copy of seizure memo. I then called the MCM CP along with register no.19 in my office and MHCM has made entry of all the details in the register no.19 and I handed over case property and all documents to MHCM CP. I also signed at point A against the relevant entry in register no.19 which is already Ex. PW2/A (OSR) which bears my signature at point A. In this regard, I lodged a GD vide no. 16A dated 16.07.2017 and same is Ex. PW6/A which bears my signatures at point A."
104. Except suggestions, which the witness denied, nothing material is found in the cross-examination of this witness to doubt the aforesaid deposition regarding compliance of Section 55 NDPS Act.
105. From the examination in chief and cross-examination of this witness it is seen that this witness duly complied with the provisions of section 55 NDPS Act by placing his counter-seal on the case property and thereafter depositing the same with MHCM PW2 HC Rohtas. The testimony of this witness is further DLSH010059892017 Page 59 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT corroborated by entry made by him in Register No.19 Ex.PW2/A, which is signed by this witness.
106. Further, sample A1 was deposited with FSL on 27.07.2017 and was examined by PW8 Shailendra Yadav, Senior Scientific Officer (Chemistry) FSL Rohini from 23.10.2017 to 31.10.2017. As per the FSL result dated 31.10.2017 Ex. PW8/A, read with testimony of PW8, the parcel Mark A1 was found bearing two seals of SK and two seals of GC, which tallied with the samples seals. Upon opening the parcels, it was found containing dried greenish brown coloured fruiting and flowering vegetative material, kept in a plastic container, weighing 277.77 gms with the plastic container. Thus, the seals of GC placed on the sample Mark A1 by PW7 and the counter-seal of SK placed by PW6 were found intact, when the sample was examined by PW8 at FSL.
107. Further, when the case property was produced before the Court during the deposition of PW5 HC Sumit Kumar, the parcel Mark A and sample Mark A2 were both found bearing the seals of SK and GC, which is in line with the deposition of PW6 and PW7.
108. Accordingly, in the opinion of the court the provisions of section 55 NDPS Act were duly complied with in the present case.
Discussion on compliance u/s. 57 of NDPS Act
109. Section 57 of NDPS Act is reproduced as under:
"57. Report of arrest and seizure.--
Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
110. As per the charge sheet, report regarding recovery of the contraband and arrest of accused under section 57 NDPS Act was prepared by PW10 SI Vishwendra. PW10 submitted the said report Ex. PW4/A to PW6 Insp. Sanjeev Kumar, who forwarded it to PW11 Hareshwar V. Swami, ACP Seema Puri. The report bears the signatures of PW6, PW10 and PW11.
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111. PW4, Reader to ACP, Seema Puri, also testified that on 18.07.2017, report u/s.57 prepared by PW10 SI Vishwendra was received in the office of ACP, Seema Puri, vide Diary No.1646 dated 18.07.2017 and the same was seen and signed by the ACP.
112. Ld. Counsel for the accused challenged compliance of section 57 NDPS Act on the ground that PW7 during his deposition never stated that he had prepared report u/s.57 of NDPS Act and no such report is part of the charge- sheet. He submitted that in the absence of report prepared by PW7 SI Gaurav Chaudhary, regarding the recovery from the accused, Section 57 NDPS Act do not stand complied with.
113. On the other hand, Ld. Addl PP while admitting that PW7 did not prepare report under section 57 of the NDPS Act, submitted that the report prepared by PW10 and sent to PW6 Insp. Sanjeev Kumar, who forwarded it to PW11 / ACP, was both regarding recovery and arrest, therefore, the provisions of section 57 NDPS Act were duly complied with.
114. As per record and the deposition of the witnesses, the recovery was effected from the accused on 16.07.2017 at about 1.30 p.m. and as per the mandate of Section 57 of NDPS Act, a report regarding the seizure of the contraband and the arrest of the accused is to be sent to immediate superior official within 48 hours.
115. In the present case, no report u/s.57 NDPS Act was prepared by PW7 SI Gaurav Chaudhary, who had made the chance recovery of 6.30 Kg of Ganja from the possession of the accused. However, report regarding recovery, as well as arrest of the accused, was prepared by IO / SI Vishwendra (PW10) on 17.07.2017, which was placed before SHO / PW6 on 17.07.2017 and before the ACP/PW11 on 18.07.2017. The contents of the said report are reproduced as under :
DLSH010059892017 Page 61 of 68 SC 303/2017STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT "It is submitted that on 16 07.17 SI Gaurav along with staff was in area patrolling. At about 1:30 PM he apprehended one person namely Rahish s/o Bhure r/o H.No. 420, Vikram Enclave, Pappu Colony, GZB, U.P on suspicion from Haddi wala park, 70 Futa road, New Seemapuri and 6.30 Kg Ganja was recovered from his possession. Accordingly the above mentioned case was registered and investigation was marked to undersigned. During course of investigation the above named accused was arrested on the same day.
This is for your kind information."
116. The said report was prepared on 17.07.2017 and placed by PW10 before immediate superior official i.e. PW6 on 17.07.2017, who further forwarded it to the next immediate official superior i.e. PW11, who had seen and signed the report on 18.07.2017. Thus, w.r.t. the recovery and arrest made on 16.07.2017, report u/s.57 NDPS Act was prepared by PW10, who duly placed it before immediate official superior i.e. SHO / PW6 on 17.07.2017 and even higher gazetted official i.e. ACP / PW11 on 18.07.2017. Perusal of report indicates that the name, parentage and address of the accused, place, time and quantity of recovery were duly communicated to senior police officials upto the rank of ACP within a period of 48 hours of the recovery, as per the requirement of Section 57 NDPS Act.
117. Though, it is true that separate reports u/s.57 NDPS Act w.r.t. seizure by PW7 SI Gaurav Chaudhary and w.r.t. arrest by PW10 SI Vishwendra are desirable in ideal situation, however, in the present case, PW7 failed to prepare that report, but that by itself does not mean a complete non-compliance of Section 57 of NDPS Act, as the details regarding the place, time, quantity, contraband and further the details of the accused were duly mentioned in the report u/s.57 NDPS Act prepared by PW10, which is Ex. PW4/A.
118. In the opinion of the court, even in absence of a report prepared by PW-7 SI Gaurav Chaudhary, as regards recovery, the report prepared by PW10 SI Vishwendra, both regarding seizure and arrest Ex. PW4/A, mentioning all DLSH010059892017 Page 62 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT necessary particulars and forwarded to PW6 (SHO) and to PW11 (ACP), amounts to sufficient compliance of section 57 NDPS Act.
119. At this juncture the court would like to refer to two decisions of Hon'ble Apex Court in this aspect. In Sajan Abraham vs. State of Kerala10 MANU/SC/0424/2001 Hon'ble Apex Court held as under:
12. The last submission for the appellant is, there is non-compliance of Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, that has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that PW 5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ex.
P9 shows that the copies of the FIR along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by PW 5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW 5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of section 57 of the Act.
(emphasis supplied)
120. In State of Punjab vs. Balbir Singh , 1994(1) RCR Criminal 737 , Hon'ble Apex Court held:
"The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest of seizure under Section 41 to 44 are by themselves not mandatory."
121. Accordingly in the opinion of the court the provisions of section 57 were substantially complied with by the investigating agency in the facts of the present case.
Whether recovered substance is Ganja?
122. The case of the prosecution is that the substance, which was recovered from the possessions of the accused persons is Ganja.
10Three Judges Bench of Hon'ble Apex Court.
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123. In order to prove this fact, the prosecution examined PW8 Shailendra Yadav, Senior Scientific Officer (Chemistry), FSL Rohini, who testified as under :
"On 27.07.2017, I was posted as above said. On that day, one sealed parcel mark A1 sealed with the seal of SK and GC was received in our office in case FIR No. 455/2017 PS Seemapuri for examination and same were marked to me for examination. I found seals were intact and tallied with the sample seals. Upon opening the parcel it was found containing dried greenish brown coloured fruiting and flowering vegetative material, kept in a plastic container, stated to be ganja weighing 277.77 grams along with plastic container which was marked by me as Exhibit A-1.
I examined the contents of the said parcel and after physical, microscopic, chemical and TLC examination, the contents of the above parcel i.e. Ex.A-1 was found to be ganja (cannabis). I prepared my detailed examination report no. FSL.2017 /C-5601 dated 31.10.2017 and the same is Ex.PW-8/A bearing my signatures at point A & B."
124. The testimony of this witness has remained unchallenged as he denied the suggestion that he prepared a false report at the instance of police.
125. Thus, in view of the aforesaid unchallenged testimony of PW8, it stands proved that the sample Mark A, which was sent to FSL upon examination was found to contain Ganja, meaning thereby that the recovered 6.30 Kg of contraband from the accused was Ganja.
Videography and Photography not done during the proceedings
126. It was also submitted that the proceedings were not videographed or photographed, which raises a doubt as to whether the proceedings took place or not in the manner as pointed out by the prosecution.
127. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2017.
128. The question before the court is whether the deposition of recovery witnesses, who have corroborated each other in material particulars, can be overlooked or disbelieved, merely because they did not take photographs or video at the time of search and seizure?
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129. As per the aforementioned judgments, though it is preferable that videography or photography be conducted during the course of investigation, however, it is not a sine qua non in a case of recovery of contraband under the NDPS Act.
130. The videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
131. It may be noted that the police officials are generally hesitant to take photographs and videos using their personal mobile phone, as they fear that their personal phones may not be seized as primary evidence in the case. Recently, Hon'ble Punjab and Haryana High Court in Ashok Kumar Vs. State of Haryana, CRM (M) No.14560/202511 order dated 21.03.2025 reprimanded the police officials for not seizing the mobile phones in which recordings were made. Said order is reproduced as under:
"Learned counsel for the petitioner contends that in the present case, the alleged recording was made in the mobile phone, owned by Ajay Kumar, however, the police has neither taken the said mobile phone in possession nor has been sent to the FSL.
Learned State counsel submits that the statement made by learned counsel for the petitioner is correct and the mobile phone has not been taken into possession by the police.
It is shocking to know that the primary evidence in the present case has not been taken into possession by the police, till date, whereas, the FIR in the present case was registered on 31.12.2024. It also shows that the investigation in the present case is being conducted by the police in a very casual manner and without following the procedure established by the law. It appears that there was no monitoring of investigation by Senior Police Officers."
132. The police officials are thus hesitant even today to take photographs and videos on personal mobile phones, though, the said situation has been to some extent rectified by the introduction of e-sakshya recently.
133. Accordingly, the absence of videography and photography at the spot during 11 Also reported on several news portals: https://www.tribuneindia.com/news/chandigarh/high-court-pulls-up- senior-cops-for-acting-like-court-of-law/ DLSH010059892017 Page 65 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT recovery proceedings conducted in 2017, or absence of the CCTV footage, is not by itself fatal to the prosecution case.
Presumption
134. Established jurisprudence dictates that, once possession is demonstrated, the burden of proof shifts to the individual asserting a lack of conscious possession or awareness of concealment. Section 35 of the Act codifies this principle through a statutory presumption in law. Similarly, Section 54 permits a presumption arising from the possession of illicit items. It is incumbent upon the accused to substantiate his claim of either unawareness or absence of conscious possession of contraband. Hon'ble Apex Court in Mohan Lal Vs. State of Rajasthan Crl. (2015) 6 SCC 222 dealt with this aspect in detail and held as under:
12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
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16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused-Appellant cannot take the plea that he had committed an offence Under Section 9 of the Opium Act and not Under Section 18 of the NDPS Act."
135. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417, Hon'ble Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
136. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Haryana (2002) 8 SCC 372, discussed the approach the court should take when DLSH010059892017 Page 67 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT analyzing the evidence, as under:
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt"
137. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused beyond reasonable doubt. The presumption under sections 35 and 54 of the NDPS Act is applicable in this case against the accused, as the recovery of contraband has been established beyond reasonable doubt. The accused failed to rebut this presumption, leading to the conclusion that he was knowingly and deliberately in possession of an intermediate quantity of heroin. According to the presumption under section 54 of the NDPS Act, since the accused was found in possession of an intermediate quantity of heroin, he has committed an offense punishable under section 20(b)(ii)(B) of the NDPS Act. Conclusion
138. The prosecution proved beyond reasonable doubt that accused Rahis was found in possession of intermediate quantity of Ganja (i.e. more than 1 kg), as 6.30 kgs of Ganja was recovered from the possession of accused. In view of the presumption under section 35 and 54 NDPS Act, it is presumed that the accused had the requisite mental state ( mens rea) to commit the offence of DLSH010059892017 Page 68 of 68 SC 303/2017 STATE Vs. RAHIS FIR No.455/2017 PS : SEEMA PURI U/s.20 (b)(ii)(B) NDPS ACT being in possession of narcotic drug / ganja without any authority or licence to be in possession of the same.
139. Accordingly, accused Rahis is convicted of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act.
140. Convict to be heard on sentence on 15.05.2025 at 2:00 p.m. Announced in the open Court on 14th day of May 2025 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi SAURABH Digitally PARTAP signed by SAURABH SINGH PARTAP LALER SINGH LALER