Delhi District Court
State vs Ashish And Anr on 28 January, 2025
CNR No.DLSH010066242022 Page 1 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No.389/22 State Vs. Ashish & Anr. FIR No.532/22 PS : Seema Puri U/s.20(b)(ii)(C) NDPS Act In the matter of :- State (through Sh. Jitendra Sharma, Addl. PP) Vs. 1. Ashish S/o. Sh. Narender Kumar R/o. Village Birul, Distt. Fatehpur, Kotwali Fatehpur, UP 2. Mukesh Mishra S/o. Sh. Lakshman Swaroop R/o. Village Bandi, Distt. Fatehpur, Kotwali Fatehpur, UP ....accused persons (Sh. Karan Verma, Advocate for both accused) Date of institution : 07.10.2022 Date when Judgment reserved : 10.01.2025 Date of Judgment : 27.01.2025 JUDGMENT:
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1. Accused Ashish and Mukesh Mishra are before the Court facing charge under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, CNR No.DLSH010066242022 Page 2 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act 1985 (in short "the NDPS Act") as it is alleged that total 45.674 Kg Ganja (commercial quantity) in three pitthu bags (i.e. 25.086 Kg in two pitthu bags from accused Ashish and 20.588 Kg in one pitthu bag from accused Mukesh Mishra), was recovered from their possession on 22.06.2022 at about 2.50 a.m.
2. In view of alleged recovery of 45.674 Kg Ganja from both the accused, FIR No.532/22 was lodged at PS Seema Puri on 22.06.2022. After completion of investigation, charge-sheet was filed on 07.10.2022. Charge was framed against the accused persons on 11.07.2023 for offence u/s.20(b)(ii)(C) NDPS Act, which reads as under :
"That on 22.06.2022 at about 2.50 AM at in front of Kalyan Hospital, Old Seemapuri Roundabout, Delhi within the jurisdiction of PS.Seemapuri, you both were apprehended by the police officials of P.S.Seemapuri during patrolling, when you both were standing in front of Kalyan Hospital with three bags; you accused Ashish was found carrying two pithu bag of green color and black color and on checking, it was found containing total 25.086 Kilograms of Ganja while you accused Mukesh Mishra was found carrying one green color bag and on checking, it was found in possession of 20.588 Kilograms of Ganja, which is in contravention of provisions of NDPS Act and, thereby you committed an offence punishable under Section 20 (b) (ii) (C) of NDPS Act, 1985 and within the cognizance of this court."
3. To substantiate the aforementioned charge, the prosecution presented 15 witnesses. The details of these witnesses, along with the documents they presented during their testimony, are listed below in tabular form:
PW No. Name of witness Documents Description exhibited PW1 HC Mukesh Ex. PW1/A DD No.90A (Duty Officer) PW2 SI Okesh Kumar Ex. PW2/A Copy of FIR (Duty Officer) Ex. PW2/B Endorsement on rukka vide DD No.24A PW3 Ct. Robin Kumar Ex. PW3/A Seizure memos of case property (Recovery witness) Exs.PW3/B & Arrest memos of both the accused PW3/C Exs.PW3/D & Personal search memos of both the accused CNR No.DLSH010066242022 Page 3 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act PW3/E Ex. PW3/F Statement of witness Ex. PW3/G Original notice u/s.50 NDPS Act of accused Ashish Ex. PW3/H Original notice u/s.50 NDPS Act of accused Mukesh Mishra Exs. P1 to P5 Ganja recovered from accused Ashish Exs. P6 to P9 Ganja recovered from accused Mukesh Mishra Ex. P10 Personal search articles of both accused (collectively) PW4 HC Rahul Kumar Ex. PW4/A Copy of RC No.205/21/22 (Took exhibits to Mark X Acknowledgment of FSL FSL) PW5 Ct. Pradeep Yadav Ex.PW5/DX1 Statement of witness u/s.161 Cr.P.C (Recovery witness) PW6 HC Sachin (Recovery witness) PW7 HC Devendra Ex. PW7/A Original report u/s.57A NDPS Act (Reader to ACP) PW7/B Copy of entry No.5128 in diary register PW8 HC Raj Kumar Ex. PW8/A Copy of entry no.1953/4972 in register no.19 (MHCM) Ex. PW8/B Copy of RC No.205/21/22 Ex. PW8/C Copy of acknowledgment of FSL PW9 Babloo Exs. PW9/P-1 to Photographs of proceedings drawing samples (Photographer) PW9/P-29 Ex.PW9/P-30 Certificate u/s.65B of Indian Evidence Act PW10 Surender Kumar Ex. PW10/A Certified copy of CAF alongwith copy of (Nodal Officer) Aadhaar Card of mobile no.xxxxx19093 Ex. PW10/B Attested copy of CDR Ex. PW10/C Certified copy of CAF and e-KYC of mobile no.xxxxx79023 Ex. PW10/D Attested copy of CDR Ex. PW10/E Location chart of both the aforesaid mobile numbers Ex. PW10/F Certificate u/s.65B of Indian Evidence Act Ex. PW10/G Covering letter of the aforesaid information forwarded to the IO PW11 Dr. Kavita Goyal, Ex. PW11/A Report of FSL Ex. PW11/A Assistant Director - Chemistry, FSL CNR No.DLSH010066242022 Page 4 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act PW12 Insp. Vinay Yadav Ex. PW12/A DD No.29A dated 22.06.2022 (SHO PS Seema Puri) PW13 ACP Akshay Kumar PW14 SI Sachin (IO, supplementary charge-sheet only) PW15 SI Vineet (IO) Ex. PW15/A Rukka Admitted documents Ex. AD1 Proceedings u/s.52A NDPS Act conducted by (Admitted on 02.12.2024) Ld. MM on 07.08.2021
4. After examining the testimony of the witnesses mentioned in the table above, it is found that they gave evidence about the following facts for the prosecution:-
4.1. On the intervening night of 21-22.06.2022, at about 2.50 a.m. (on 22.06.2022), PW3 Ct. Robin Kumar alongwith PW5 Ct. Pradeep and Ct.
Satyanarayan were on patrolling duty on a govt motorcycle. At about 3.00 a.m., they reached near Seemapuri Golchakkar, in front of Kalyan Hospital, where both the accused were found standing. 4.2. PW3 Ct. Robin Kumar and Ct. Satyanarayan stopped near both the accused and enquired from them about their names and addresses, upon which they disclosed their names and addresses as Ashish s/o Narender Kumar r/o. Village Birui, Distt Fatehpuri, UP, aged 22 years and Mukesh Mishra s/o Laxman Swaroop Mishra r/o village Bandi Distt Fatehpuri UP aged 23 years.
4.3. The aforementioned three police officials also enquired from accused Ashish as to what he was carrying in his two pitthu bags of black colour and the other bag that he was carrying in his right hand. They also enquired from accused Mukesh Mishra, as to what he was carrying in the green colour bag in his right hand. Upon which, both the accused replied that they were carrying personal articles / belongings.
CNR No.DLSH010066242022 Page 5 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act 4.4. The aforementioned police officials, on suspicion checked all the three bags and in the black colour pitthu bag carried by accused Ashish, they found two brown colour packets, which were found to contain pattinuma beej with leaves, having the qualities of Ganja and in the green colour bag also carried by accused Ashish in his right hand, they found three packets with brownish colour tape and upon checking the same, each of the packets were found containing pattinuma beej with leaves, having the qualities of Ganja. On checking the green colour bag carried by accused Mukesh, they found four packets with brownish colour tape and each of the packets were found containing pattinuma beej with leaves, having the qualities of Ganja.
4.5. PW3 Ct. Robin Kumar called the Duty Officer and gave him information about the aforementioned facts, which was recorded by Duty Officer / PW2 SI Okesh Pal vide DD No.19A Ex.PW2/D. 4.6. The said DD entry No.19A Ex. PW2/D was marked to PW15 SI Vinit, who upon receiving the same, alongwith PW6 HC Sachin went to the spot alongwith IO kit, weighing machine, laptop, printer and other material.
4.7. PW15 SI Vineet and PW6 HC Sachin, upon arrival at the spot, met PW3 Ct. Robin, PW5 Ct. Pardeep and Ct. Satyanarayan and they produced the three bags, one of black colour and two of green colour, containing Ganja like material, to PW15 SI Vineet. They also disclosed all the facts to PW15 SI Vineet, upon which SI Vineet shared the information with the concerned SHO PW12 Inspector Vinay Yadav and also with PW13 ACP Akshay Kumar.
4.8. PW15 SI Vineet asked 3-4 public persons to join the investigation in the presence of both the accused at the spot, but the public persons refused CNR No.DLSH010066242022 Page 6 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act and went away without disclosing their names and other details. 4.9. PW15 SI Vineet checked the bags and found that in the green colour bag, there were three polythene bags containing Ganja and in the black colour bag, there were two polythene bags containing Ganja. In the green colour bag recovered from accused Mukesh Mishra, there were four polythene bags containing Ganja. Thus, in total, from both the accused, 9 polythene bags containing Ganja were recovered.
4.10. PW15 SI Vineet prepared notices under section 50 of the NDPS Act and handed over the original notices to both the accused and apprised them about their legal rights that before conducting their personal search, they can conduct the search of police team and they can also get themselves searched in the presence of a gazetted officer or a magistrate or they can be produced before a gazetted officer or magistrate for the said purpose. However, both the accused refused to get themselves searched before a gazetted officer or a magistrate and also refused to take the search of members of police team.
4.11. Since accused Ashish was not literate enough, hence, PW15 SI Vineet recorded his refusal on the copy of notice under section 50 of the NDPS Act Ex.PW3/2, which bears his signatures at point Z and his refusal from point Y to Y1. Similarly, accused Mukesh Mishra also refused and his refusal was also recorded on the copy of notice under section 50 of the NDPS Act Ex.PW3/1, bearing his signature at point D and his refusal from point X to X1.
4.12. PW13 ACP Akshay Kumar, upon receiving the information from PW15 about the recovered contraband, reached the spot at about 5.00 a.m., where PW15 produced both the accused and he introduced himself to them, apprised them about their legal rights and informed them that he is CNR No.DLSH010066242022 Page 7 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act a gazetted officer.
4.13. The nine bags, marked as S1 to S9 by PW15 SI Vineet, were separately weighed on the weighing machine.
4.14. PW15 weighed the polythenes separately on electronic weighing machine. The weight of the five polythene bags containing Ganja recovered from accused Ashish : Weight of S1 was found to be 4.952 Kgs, Weight of S2 was found to be 5.080 Kgs. Weight of S3 was found to be 5.090 Kgs, weight of S4 was found to be 5.084 Kgs and weight of S5 was found to be 4.880 Kgs.
4.15. The weight of four polythene bags recovered from accused Mukesh:
Weight of S6 was found to be 5.080 Kgs, weight of S7 was found to be
5.114 Kgs, weight of S8 was found to be 5.092 Kgs and weight of S9 was found to be 5.298 Kgs.
4.16. After the polythene bags were weighed, the parcels S1 and S2 were kept in the same black colour bag, its cloth pullanda was prepared, parcels / packets S3, S4 and S5 were kept in the same green colour bag recovered from accused Ashish, cloth pullanda was prepared and parcels S6, S7, S8 and S9 were kept in the same green colour bag recovered from accused Mukesh, cloth pullanda was prepared and the three cloth pullandas were marked as A1, A2 and A3, which were sealed with the seal of VP by PW15 SI Vinit. The seal was thereafter handed over to PW5 Ct. Pradeep vide seal handing over memo Ex.PW3/3.
4.17. The aforementioned bags were seized vide seizure-memo Ex.PW3/A, which also bears signature of both the accused. 4.18. Rukka was prepared by PW15 Ex.PW15/A and the same was handed over to PW3 Ct. Robin Kumar and PW5 Ct. Pradeep. The carbon copy of seizure-memo and the sealed parcels A1 to A3 were also handed over to CNR No.DLSH010066242022 Page 8 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act PW3 Ct. Robin Kumar and PW5 Ct. Pradeep with direction to hand over rukka to Duty Officer PW2 SI Okesh Pal and parcels to the SHO. 4.19. PW3 Ct. Robin Kumar and PW5 Ct. Pradeep alongwith the parcels, rukka, copy of seizure-memo went to PS, where rukka was handed over to the Duty Officer and the copy of seizure-memo along with sealed parcels were produced before PW12 / SHO Inspector Vinay Yadav, at about 7.00 a.m. 4.20. PW2 SI Okesh Pal recorded FIR Ex.PW2/A on the basis of rukka and made endorsement Ex.PW2/B on the rukka vide DD No.24A. 4.21. PW12 Inspector Vinay Yadav upon receiving the copy of seizure- memo and three parcels, affixed his seal of VY on the said three pullandas Mark A1 to A3 and after confirming the FIR number from the Duty Officer, PW2 SI Okesh Pal, mentioned the same on the parcels and seizure-memo. He also affixed his signatures on three parcels as well as copy of seizure-memo.
4.22. PW12 Inspector Vinay Yadav, thereafter handed over the sealed parcels and copy of seizure-memo to MHCM HC Raj Kumar (PW8) at about 8.30 a.m., who deposited the said parcel in Malkhana and made entry in this regard at serial no.1953/4972 in register no.19 Ex.PW8/A, which was also countersigned by the SHO.
4.23. After registration of FIR and handing over the parcels to PW12 SHO, PW3 and PW5 returned back to the spot with copy of FIR and original rukka and handed over the same to PW15. Thereafter, PW15 mentioned the FIR number on documents prepared by him and also prepared the site plan Ex.PW6/1.
4.24. Both accused Ashish and Mukesh Mishra were arrested vide arrest memos Ex.PW3/C and Ex.PW3/B respectively in the presence of PW3 CNR No.DLSH010066242022 Page 9 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act and PW5. Their personal search was also conducted vide memos Ex.PW3/D and Ex.PW3/E, on which, besides other things, original notices under section 50 of the NDPS Act were also found in their respective possession.
4.25. The said personal search articles were deposited in the Malkhana and received by PW8 HC Raj Kumar (MHCM), who deposited the same and made entry in this regard in register no.19 Ex.PW8/A. 4.26. That on 22.06.2022, PW12 Inspector Vinay Yadav forwarded report Ex.PW7/A under section 57 of the NDPS Act, prepared by PW15 SI Vineet and the said report was received by PW13 ACP Akshay Kumar, who signed the said report Ex.PW7/A and retained it in his record, which was produced by PW7. Entry no.5128 in diary register as regard the said report is Ex.PW7/B. 4.27. On 01.07.2022, PW3, PW5 and IO/PW15 SI Vinit alongwith PW9 / Photographer Babloo, after taking the case property from the MHCM, came to Court of Sh. Ajeet Narayan, Ld. MM, Karkardooma Courts, where proceeding u/s. 52A NDPS Act were conducted, which are Ex.AD-1 (admitted by both the accused on 02.12.2024). The photographs taken during the said proceedings were proved by PW9 as Ex.PW9/P-1 to Ex.PW9/P-29 and certificate thereto u/s 65B Indian Evidence Act as Ex.PW9/P-30.
4.28. On 08.07.2022, the sealed parcels were taken out on the direction of PW15 and PW8 handed over the said parcels to PW4 HC Rahul to be deposited at FSL vide RC No. 205/21/22 Ex.PW4/1 and Ex.PW8/B. 4.29. PW4 HC Rahul Kumar after obtaining the sealed pullandas, FSL Form, copy of seizure-memo and sample seal, went to FSL Rohini and deposited the same vide receipt / acknowledgment Ex.PW8/C, which was CNR No.DLSH010066242022 Page 10 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act handed over by him to MHCM.
4.30. That PW11 Dr. Kavita Goyal (FSL Expert) examined the parcels deposited with FSL on 08.07.2022 and found that the said parcels containing dried greenish brown colour flowering and fruiting vegetative material, which upon physical microscopic chemical and TLC examination was found to be Ganja. The detailed report dated 06.02.2023 in this regard is Ex.PW11/A. 4.31. That PW14 SI Sachin obtained the FSL result in July 2023, prepared supplementary charge-sheet and filed the same in the Court. 4.32. That PW10 Surender Kumar, Nodal Officer, Bharti Airtel Ltd., produced CAF of mobile numbers xxxxx19093 and xxxxx79023 from 01.07.2021 to 22.06.2022. As per said record, mobile number 7398219093 has been issued in the name of Mayank Mishra. The certified copy of CAF alongwith Aadhar card is Ex.PW10/A. The attested copy of CDR is Ex.PW10/B (colly.). Further, as per record, the mobile number xxxxx79023 has been issued in the name of Mukesh. The certified copy of CAF along with e-KYC is Ex.PW10/C. The attested copy of CDR is Ex.PW10/D. The location chart of both the aforesaid mobile numbers is Ex.PW10/E. The witness also issued a certificate under section 65B of the Indian Evidence Act Ex. PW10/F of both the aforesaid mobile numbers. The abovesaid details were forwarded to the IO vide covering letter Ex.PW10/G.
5. After closing of the prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded, wherein they pleaded innocence and claimed that they have been falsely implicated in the present case.
6. In defence, accused Ashish stated that on the intervening night of 21 -
CNR No.DLSH010066242022 Page 11 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act 22.06.2022, at about 11.00 - 12.00 midnight, he and his friend Mukesh Mishra (co-accused) came from Kanpur to Anand Vihar Bus Stand in a bus and after they alighted from the bus, they were apprehended by the police. Accused Mukesh Mishra in his defence stated that he has been falsely implicated in the present case. He along with his friend Ashish were coming in bus from Kanpur, as they had to go to NOIDA (Uttar Pradesh). They alighted from the bus at Anand Vihar Bus Stand and when they were searching for an auto, police officials came there and apprehended them and thereafter took them to Seema Puri Gol Chakkar. There, one - two other persons were already present. The police officials were conducting their search and the articles recovered from those persons were planted on them. The police officials permitted those persons to go away and arrested them. At that time, the police officials stated them that they would release them in the morning. They also obtained their signatures on blank papers.
7. Both the accused opted not to lead evidence in their defence. Arguments advanced
8. I have heard the Sh. Jitender Sharma, Ld. Additional Public Prosecutor and Sh. Karan Verma, Ld. Counsel for accused persons and perused the record.
9. During course of the arguments, Ld. Addl. Public Prosecutor submitted that there has been recovery of commercial quantity of contraband from both the accused persons, which has been proved beyond reasonable doubt by the prosecution and, therefore, the accused persons are liable to be convicted for offence u/s.20 NDPS Act.
10. Written arguments were also filed by learned counsel for accused persons. Ld. Counsel for the accused, in oral arguments as well as written submissions, submitted that this is a case of chance recovery, but the officials who are CNR No.DLSH010066242022 Page 12 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act involved in the chance recovery were allocated different locations for patrolling, as per GD No.4A, thus, there is a mismatch as far as the place of recovery and the location of the recovery witnesses, as per the GD No.4A is concerned. He submitted that Ct. Robin was deputed at DTC Depot and Ct. Satyanarayan at Pummy Sweets as per the GD No. 0004A. However, the said Constables made alleged recovery from Old Seemapuri Golchakkar in front of Kalyan Hospital, where the said officers were never deputed. Her further submitted that DD 19A was prepared on the telephonic message given by Constable Robin, as per his statement u/s.161 Cr.P.C. and as per statement u/s.161 Cr.P.C. of Ct. Pradeep. However, both the said witnesses deposed otherwise before the Court, as Ct. Robin stated that it was Ct. Pradeep, who telephonically informed the PS, whereas Ct. Pradeep stated that he had given the information to Duty Officer telephonically. Therefore, both the witnesses have deposed differently from what is mentioned in GD No.19A as well as in the rukka. Ld. Counsel strongly argued that this contradiction goes to the root of the case and creates serious doubt regarding the alleged chance recovery made from the accused persons. Ld. Counsel also submitted that as per record, the alleged recovered substance is beejnuma, dandinuma, ghaas jaisa badbudaar padarth, which is not Ganja as per law. He also submitted that PW5 Ct. Pradeep during his deposition stated that field testing kit was used to check the contraband, whereas it is a matter of fact that the field test kit is never used to test Ganja. It was further submitted by the Ld. Counsel that the prosecution has failed to produce the best possible evidence, which could have been procured at the time of alleged recovery by either making photography or videography at the time of making alleged recovery, or by collecting CCTV footage of the spot of recovery of places nearby. He also submitted that the prosecution has not examined even a single independent witness and, therefore, CNR No.DLSH010066242022 Page 13 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act there is a presumption against the prosecution and in favour of the accused u/s.114(g) Indian Evidence Act. Lastly, he submitted that the application for sampling u/s.52A NDPS Act was moved after a delay of six days and the samples were also sent to FSL after delay of eight days, which also creates doubt regarding the tampering of the case property. Legal Requirement to prove the Charges
11. Accused persons have been charged for offences u/s.20(b)(ii)(C) 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)
12. As far as contravention of the provision is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or CNR No.DLSH010066242022 Page 14 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of Ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter- State of Ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes." `(emphasis supplied)
13. As per the Section, possession of all narcotic drugs is prohibited by Section 8.
14. The term "narcotic drugs" is defined in Section 2(xiv) as under:-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
15. As per the definition, 'narcotic drug' includes cannabis (hemp). Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
16. The term "cannabis (hemp)" is defined in Section 2(iii) of NDPS Act, as under :
"(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom" (emphasis supplied) CNR No.DLSH010066242022 Page 15 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
17. "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.
18. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;"
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
19. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including '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.
20. 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 were 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 (above 20 Kgs), for Section 20(b)(ii)(C).
21. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with CNR No.DLSH010066242022 Page 16 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously.1 The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
22. In Raj Kumar Karwal and Ors. vs. Union of India (UOI) and Ors. :
MANU/SC/0014/1991, Hon'ble Apex Court considered the scheme of the Act as under:
"8. The Act is divided into VI Chapters accommodating 83 Sections. Chapter I contains the short title of the Act, definitions of various terms and expressions used therein and provisions enabling addition to and omission from the list of psychotropic substances. Chapter II entitled 'authorities & officers' empowers the Central as well as the State Government to make appointments of certain officers, etc. for the purposes of the Act. The newly added Chapter IIA provides for the Constitution of a national fund for control of drug abuse. Provision for the prohibition, control and regulation on cultivation, production, manufacture, etc., of any narcotic drug or psychotropic substance is to be found in Chapter III. Chapter IV defines the offences punishable under the Act and prescribes the penalties therefor. Needless to say that the punishments prescribed are very severe. In some cases the minimum punishment is 10 years with fine extending to 1
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."CNR No.DLSH010066242022 Page 17 of 53 SC No.389/22
State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act Rs. 2 lacs and above. By a recent amendment death penalty is prescribed for certain offences committed by persons after a previous conviction. Provision for rebuttable presumption of mens-rea culpable mental state-is also made under Section 35 and Special Courts are envisaged by Sections 36 and 36A for the trial of offences punishable under the Act. Every offence punishable under the Act is made cognizable by virtue of Section 37., notwithstanding the provisions of the Code. Then comes Chapter V which outlines the procedure to be followed by the officers appointed for the implementation of the various provisions of the Act. Sub-section (1) of Section 41 empowers a Metropolitan Magistrate or a Magistrate of the First Class or a Magistrate of the Second Class, specially empowered, to issue a warrant for the arrest of any person suspected of having committed any offence punishable under the provisions of Chapter IV of the Act and for the search of any premises, conveyance or place in which such person is suspected of having kept or concealed any narcotic drug or psychotropic substance. Sections 41(2), 42, 43, and 44 confer on officers named under Act the powers of arrest, search and seizure without any order or warrant from the concerned Magistrate. We will refer to these provisions in some detail when we discuss the impact thereof hereafter.
9. Power to stop, rummage and search any conveyance or goods carried in any conveyance or on any animal is conferred by Section 49. Section 51 provides that all warrants issued and arrests, searches and seizures made shall be governed by the provisions of the Code unless such provisions are not consistent with the provisions of the Act.
10. ...... Section 53A, inserted by Act 2 of 1989, makes a statement made and signed by a person before any officer empowered under Section 53 for investigation of offences, during the course of such investigation, relevant in certain circumstances e.g., when the maker of the statement is dead or cannot be traced or is incapable of giving evidence or is kept away by the opposite party or whose presence cannot be secured without delay or when he is examined as a witness in the case. Section 54 permits raising of a rebuttable presumption against an accused in a trial for any offence under the Act to the extent permitted by Clauses (a) to (d) thereof. Section 55 enjoins upon an officer- in-charge of a police station to take charge of and keep in safe custody any article seized under the Act and made over to him. Section 57 enjoins upon the officer making an arrest or effecting seizure under the Act to make a full report thereof to his immediate superior within 48 hours. Section 58 provides the punishment for vexatious entry, search, seizure or arrest. Section 67 empowers an authorised officer to call for information or require any person to produce or deliver any document or thing useful or relevant to the enquiry or examine any person acquainted with the facts and circumstances of the case. The newly added Chapter VA deals with forfeiture of property derived from and used in illicit traffic of drugs, etc. The last Chapter VI contains CNR No.DLSH010066242022 Page 18 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act miscellaneous provisions."
23. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. It is further settled law that for attracting the provision of Section 35 and 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.
24. The court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:
Discussion on the point of compliance of Section 42 of NDPS Act
25. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other depart-
ment of the Central Government including para-military forces or armed forces as is em- powered 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 empow- ered 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 CNR No.DLSH010066242022 Page 19 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act 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 authori- sation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." (emphasis supplied)
26. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to reduce it into writing and send the information so recorded within 72 hours of its receipt to his immediate officer superior.
27. The present case is a case of chance recovery as no secret information was received before the apprehension of the accused persons. Accordingly, the recording of secret information in terms of Section 42(1) NDPS Act and forwarding the same to immediate official superior within 72 hours was not required in the present case. Thus, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case.
Discussion on the point of compliance of Section 50 of NDPS Act
28. Section 50 NDPS Act is as under :
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.CNR No.DLSH010066242022 Page 20 of 53 SC No.389/22
State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act (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)
29. The legal position in respect to Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in case titled as State vs Baldev Singh reported as 1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of a chance recovery. The relevant para of this judgment reads as under:-
"11. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted."
30. In the case titled as State of Punjab vs. Balbir Singh reported as 1994(3) SCC 299, same view has been taken by Hon'ble Supreme Court. The relevant para reads as under:-
"25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the CNR No.DLSH010066242022 Page 21 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act."
31. In State of H.P. vs. Sunil Kumar (05.03.2014 - SC) : MANU/SC/0193/2014, a case of chance recovery, Hon'ble Apex Court considered the question regarding application of Section 50 NDPS Act. Relevant para of the said judgment dealing with chance recovery and notice u/s.50 NDPS Act are reproduced as under:
"Chance recovery:
11. The State is in appeal against the acquittal of Sunil Kumar and the broad submission is that the recovery of charas from him was a chance recovery. Under these circumstances, in view of the Constitution Bench decision in Baldev Singh which endorsed the view taken in State of Punjab v. Balbir Singh (1994) 3 SCC 299 the personal search of Sunil Kumar resulting in the recovery of contraband did not violate Section 50 of the Act. Reliance was placed by learned Counsel on paragraph 25 in Balbir Singh which was also endorsed by the Constitution Bench. It was submitted that it is only after a chance or accidental recovery of any narcotic drug or psychotropic substance by any police officer that the provisions of the Act would come into play. It is then that the empowered officer should be informed and that empowered officer should thereafter proceed to investigate the matter in accordance with the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, CNR No.DLSH010066242022 Page 22 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we need to firstly understand what a 'chance recovery' is. The next question would be whether the provisions of Section 50 of the Act would apply when there is a chance recovery.
14. The expression 'chance recovery' has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 this Court considered a chance recovery as one when a police officer "stumbles on" narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC 608 the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a 'chance recovery'.
15. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a "positive suspicion" that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected notwithstanding the submission that drugs are easily available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs and indeed that is also not the case set up in this appeal. It was plainly a chance or accidental or unexpected recovery of charas-Sunil Kumar could well have been carrying any other contraband such as, smuggled gold, stolen property or an illegal firearm or even some other drug.
17. We are not going into the issue whether the personal or body search of Sunil Kumar (without a warrant) was at all permitted by law under these circumstances. That was not an issue raised or canvassed before the Trial Court or the High Court or even before us, although it has been adverted to in the written submissions by Learned Counsel assisting us on behalf of Sunil Kumar.
Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is concerned, the issue is no longer res integra in view of the decision of the Constitution Bench in Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though the Chamba area may be one where such drugs are easily available. At best, it could be said the police officers suspected Sunil Kumar of carrying drugs and nothing more. Mere suspicion, even if it is 'positive suspicion' or grave suspicion cannot be equated with 'reason to believe'. Joti Parshad v. State of Haryana 1993 Supp (2) SCC 497 and Sheo Nath Singh v. Appellate Assistant CIT (1972) 3 SCC 234. These are two completely different CNR No.DLSH010066242022 Page 23 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act concepts. It is this positive suspicion, and not any reason to believe, that led to the chance recovery of charas from the person of Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. Bharatbhai Bhagwanjibhai v. State of Gujarat (2002) 8 SCC 327 The procedure to be followed when there is prior information of the carrying of contraband drugs is laid down in the Act and it is nobody's case that that procedure was followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that Sunil Kumar was carrying some contraband, therefore, it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of Section 50 of the Act ought to have been complied with. The recovery of charas on the body or personal search of Sunil Kumar was clearly a chance recovery and, in view of Baldev Singh, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act."
32. In view of the aforesaid judgment, it is clear that in a case of chance recovery, like the present one, notice u/s.50 NDPS Act is not required to be given before the search of the accused persons is conducted.
33. However, it is noted that as soon as the police officials came to know that the accused were carrying Ganja, upon checking the bags that they were carrying, the further proceedings were conducted as per the provisions of NDPS Act and the IO PW15 upon reaching the spot gave notice u/s.50 NDPS Act to both the accused persons. Thus, after the apprehension of accused persons and before their bodily search was conducted, mandatory notice u/s.50 NDPS Act was served upon them and only after their refusal to avail their legal rights, their bodily search was carried out. However, in their statement recorded under Section 313 Cr.P.C., they denied to have been served with any such notice and claimed that at the time of their arrest, their signatures were taken by the police on some blank papers.
34. In view of the said claim of the accused persons, it is to be seen whether or not, notice u/s.50 of the NDPS Act was served upon them before their bodily search was conducted. PW15 in his deposition categorically stated that he prepared notice u/s.50 NDPS Act and handed over the same to the accused CNR No.DLSH010066242022 Page 24 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act persons. He also testified that he apprised the accused persons regarding their legal rights, as mentioned in the notice u/s.50 NDPS Act. Testimony of this witness on this aspect is as under:
"Thereafter, I prepared two separate notices u/s.50 of the NDPS Act in duplicate and one copy each were served upon the respective accused persons. Thereafter I apprised both the accused persons about their legal right by saying that they can get themselves searched as well as they can search the police team in the presence of any Gazetted officer or the Magistrate and if they want they can be produced before the gazetted officer or magistrate for the said purpose. However they refused to get themselves 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.
Both the accused persons told me that they are less literate and can only sign. I wrote down the refusal of accused Mukesh on the notice u/s 50 NDPS Act. The said notice is already Ex.PW3/1 bearing signature of accused Mukesh Mishra at point D as a receipt of original notice. My signature is at point E, refusal of accused Mukesh Mishra from X to X1, signatures of accused Mukesh Mishra below the refusal at point Y and my signatures below the refusal at point E1.
I wrote down the refusal of accused Ashish on the notice u/s 50 NDPS Act. The said notice is already Ex.PW3/2 bearing signature of accused Ashish at point Z as a receipt of original notice. My signature is at point E, refusal of accused Ashish from Y to Y1, and my signatures below the refusal at point E1."
35. It may be noted that there is no cross-examination of this witness as regards the notice given by him to the accused persons and as regards the response of the accused persons to the notice, which was recorded on the copy of the notice. The only question put to him was that he had checked the contents of the bags before notice u/s.50 NDPS Act was served upon the accused persons and that he did not mention the word 'nearest' in notices u/s.50 NDPS Act.
36. As stated earlier, it is the case of the prosecution that the recovery was a chance recovery, wherein upon checking the bags carried by the accused persons, it was found that they were carrying several packets containing Ganja like substance and only thereafter, information was given at the PS to depute an IO CNR No.DLSH010066242022 Page 25 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act to conduct further proceedings under NDPS Act. Therefore, as per the prosecution case, the contents of the bags were checked before the IO was deputed to conduct the investigation in the present case and as such, it was not possible to give notice u/s.50 NDPS Act, before the contents of the bags were checked by the police officials. It is precisely for this reason, as pointed out by the Hon'ble Apex Court in the aforesaid judgments, that the requirement of Section 50 of NDPS Act is dispensed with in cases of chance recovery. However, after the chance recovery, the bodily search of the accused persons was duly carried out after giving them notice u/s.50 NDPS Act. Thus, as far as the bodily search of the accused persons is concerned, the investigating agency duly complied with Section 50 NDPS Act.
37. It was one of the arguments of the Ld. Defence Counsel that in the notice under section 50 NDPS Act, the word "nearest" is not mentioned and as such there is failure to comply with section 50 NDPS Act. In this regard Ld. Clounsel relied upon judgment titled Bantu Vs State Govt of NCT of Delhi 2024:DHC:5006 and Mohd. Jabir Vs State (NCT of Delhi) 2023 SCC Online Del 1827. In judgment of Bantu (supra), the Hon'ble High Court relied upon Mohd. Jabir (supra). However, the 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, CNR No.DLSH010066242022 Page 26 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act 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) Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
38. The aforesaid deposition of PW15 is further supported by PW3, PW5 and PW6, as all of them testified that the bodily search of the accused persons was conducted only after notice u/s.50 NDPS Act was served upon the accused persons. It may further be noted that despite the refusal of the accused persons to get their bodily search conducted before a Gazetted Officer or a Magistrate, PW13 ACP Akashay Kumar, a gazetted officer of Delhi Police reached the spot and after introducing himself and apprising the accused persons of their legal rights, directed PW15 to conduct bodily search of the accused persons, which was conducted in his presence and no contraband was recovered from the bodily search of any of the two accused persons.
39. In view of the testimonies of above witnesses, namely, PW-3 Robin Kumar, PW5 Ct. Pradeep Yadav, PW6 HC Sachin, PW13 ACP Akashay Kumar and PW15 SI Vineet, the prosecution has successfully proved on record that the accused were properly served with the notice under Section 50 of the NDPS Act before their bodily search and there was no violation of the said mandatory provision.
40. It may further be pointed out here that as far as recovery of contraband from the bag carried out by the accused persons is concerned, the rigors of Section 50 NDPS Act do not apply to the bags being carried by the accused person. In this regard, the Court relies upon judgment titled State of Haryana Vs. Suresh, AIR 2007 SC 2254, wherein Hon'ble Apex Court held as under :
"14. 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 CNR No.DLSH010066242022 Page 27 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act 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."
Discussion on the point of recovery of contraband
41. As per prosecution case, on the intervening night of 21-22.06.2022, at about 2.50 a.m. (on 22.06.2022), PW3 Ct. Robin Kumar alongwith PW5 Ct. Pradeep and Ct. Satyanarayan were on patrolling duty on a govt motorcycle. At about 3.00 a.m., they reached near Seemapuri Golchakkar, in front of Kalyan Hospital, where both the accused were found standing. PW3 Ct. Robin Kumar and Ct. Satyanarayan stopped near both the accused and enquired from them about their names and addresses, upon which they disclosed their names and addresses as Ashish s/o Narender Kumar r/o. Village Birui, Distt Fatehpuri, UP, aged 22 years and Mukesh Mishra s/o Laxman Swaroop Mishra r/o village Bandi, Distt Fatehpuri UP aged 23 years. The aforementioned three police officials also enquired from accused Ashish as to what he was carrying in his two pitthu bags of black colour and the other bag that he was carrying in his right hand. They also enquired from accused Mukesh Mishra, as to what he was carrying in the green colour bag in his right hand. Upon which, both the accused replied that they were carrying personal articles / belongings.
42. The aforementioned police officials, on suspicion checked all the three bags and in the black colour pitthu bag carried by accused Ashish, they found two brown colour packets, which were found to contain pattinuma beej with leaves, having the qualities of Ganja and in the green colour bag also carried CNR No.DLSH010066242022 Page 28 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act by him (accused Ashish) in his right hand and they found three packets with brownish colour tape and upon checking the same, each of the packets were found containing pattinuma beej with leaves, having the qualities of Ganja. On checking the green colour bag carried by accused Mukesh, they found four packets with brownish colour tape and each of the packets were found containing pattinuma beej with leaves, having the qualities of Ganja. PW3 Ct. Robin Kumar called the Duty Officer and gave him information about the aforementioned facts, which was recorded by Duty Officer / PW2 SI Okesh Pal vide DD No.19A Ex.PW2/D. The said DD entry No.19A Ex. PW2/D was marked to PW15 SI Vinit, who upon receiving the same, alongwith PW6 HC Sachin went to the spot alongwith IO kit, weighing machine, laptop, printer and other material and after completing necessary formalities, he checked the bags and numbered the packets as S1, S2, S3, S4, S5, S6, S7, S8 & S9. He weighed the recovered substance on the weighing scale and found the weight of the five polythene bags containing Ganja recovered from accused Ashish:
Weight of S1 was found to be 4.952 Kgs, Weight of S2 was found to be 5.080 Kgs. Weight of S3 was found to be 5.090 Kgs, weight of S4 was found to be 5.084 Kgs and weight of S5 was found to be 4.880 Kgs. Similarly, the weight of four polythene bags recovered from accused Mukesh: Weight of S6 was found to be 5.080 Kgs, weight of S7 was found to be 5.114 Kgs, weight of S8 was found to be 5.092 Kgs and weight of S9 was found to be 5.298 Kgs.
43. In order to prove the recovery, the first witness examined by the prosecution is PW3 Ct. Robin Kumar. The said witness in his examination-in-chief as regards the recovery, testified as under :
"In the intervening night of 22-23.06.2022, I was posted as Ct at PS Seemapuri. On that day I along with Ct. Satya Narayan and Ct. Pradeep were on patrolling duty on govt motorcycle. At about 3.00 am when we reached at Seemapuri Gol Chakar in front of Kalyan Hospital. We saw that two persons were standing there.CNR No.DLSH010066242022 Page 29 of 53 SC No.389/22
State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act Thereafter I along with above mentioned police officers asked them why are they standing there but they did not give answer. We again asked them and after some time they disclosed their names. Their name revealed as Ashish s/o Narender Kumar and Mukesh Mishra s/o Laxman Swaroop Mishra. Ashish was carrying one pittu bag of black colour and he was also carrying one bag in his right hand. Accused Mukesh was also carrying one green colour bag on his right hand. We asked them about the above mentioned bag. Upon this they told us that they were carrying their personal articles/belongings. On suspicion, we checked all the three bags. We opened one small bag black colour containing two brownish colour (matiala colour) packets. One of the brownish colour (matiala colour) bag was cut / torn and checked and found "pattinuma beej with leaves". The different kind of smell was coming from the said bags. We felt that the said article i.e. pattinuma beej with leaves seems to be ganja. Thereafter I made a call to the duty officer and gave the information regarding the above mentioned facts. I requested him to send IO to the above mentioned spot. SI Vinit Punia along with HC Sachin reached at the above mentioned spot. They were also carrying IO kit with them i.e. laptop, printer, electronic weighing machine along with some material articles. I narrated all the above mentioned facts to the IO. IO SI Vinit Punia checked the above mentioned bags. After seeing the said bags, SI Vinit gave the information to the SHO through telephonically.
Thereafter IO SI Vinit apprised them for their legal right by saying that they can get themselves searched as well as search the raiding team in the presence of any Gazetted officer or the Magistrate however accused persons refused to get themselves searched in the presence of any Gazetted officer or the Magistrate as well as to search the raiding team in the presence of any Gazetted officer or the Magistrate. SI Vinit gave the said information telephonically to ACP Akshay Kumar. Thereafter said ACP reached at the spot and he again apprised the accused persons for conducting their personal search. Their personal search was conducted by us in presence of ACP. From the personal search of accused Ashish, 1250/-rupees, one mobile phone of MI company of silver colour and its half of the screen was broken and one bus ticket dated 21.06.2022 from Kanpur to Delhi, were recovered from his possession. Notice under section 50 of the NDPS Act was also recovered from his possession. From the personal search of accused Mukesh Mishra, one mobile phone of I tell of blue colour and notice under section 50 of the NDPS Act were also recovered from his possession.
ACP weighed the said three bags with the help of electronic weighing machine. The weight of the pittu bag containing two packets which was recovered from the possession of accused Ashish were found to be 5 kilograms of ganja in each of the packets. The said packets were marked with S1 and S2 by IO SI Vinit.CNR No.DLSH010066242022 Page 30 of 53 SC No.389/22
State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act We weighed one bag which was recovered from the accused Ashish in the presence of ACP. The said bag containing three packets which was recovered from the possession of accused Ashish were found to be approximately 5 kilograms of ganja in each of the packets. The said packets were marked with S3 to S5 by IO SI Vinit. The total weight of the said contraband which was recovered from accused Ashish was found to be approximately 25 Kilograms and some grams. The bag which was recovered from the accused Mukesh in the presence of ACP was checked and the said bag containing four packets were found in that bag. The said packets on weight were found to contain approximately 5 kilograms of ganja in each of the packets. The said packets were marked with S6 to S9 by IO SI Vinit. The total weight of the said contraband which was recovered from accused Mukesh was found to be approximately 20 Kilo 500 grams. Thereafter ACP had instructed the 10 to do legal action / formalities as per law. Thereafter ACP left the spot. The above mentioned packets which were recovered from the respective bags were kept again in the said bags and thereafter the said bags were put in the white cloth pullanda. Three pullandas were prepared and they were sealed with the seal of VP. The seizure memos were prepared and taken into possession vide seizure memo Ex.PW3/A which bears my signature at point A."
44. On this aspect, he was cross-examined by Ld. Defence Counsel. Relevant portion of his cross-examination is also reproduced as under :
"I was alone on my bike while on patrolling duty in beat no.4 in Seemapuri on the date of offence. I do not remember what clothes were being worn by the accused persons. We had opened the bag recovered from the accused Ashish first of all. Ct. Pradeep had opened the said bag first. The recovered substance from the accused persons seemed like ganja but I could not say with certainity that it was ganja. I had informed the duty officer in police station about recovery of contraband. IO had recorded my statement u/s 161 CrPC. I had told to the IO that I had given the information in the police station.
At this stage the Id. Defence counsel has confronted the witness with his statement u/s 161 CrPC dt. 22.06.2022 in which it is mentioned that his associate Ct. Pradeep had informed the duty officer telephonically from point A to A. The statement is Ex.PW3/DX1.
I had not taken the photographs of the contraband from my mobile phone. SI Vinit and HC Sachin came on the spot at about 3.30 am. No authorization letter was shown by them for conducting search and seizure."
45. Ct. Pradeep also deposed on the same lines in his examination-in-chief and corroborated the testimony of PW3 Ct. Robin. Ha also testified that after the accused were apprehended, Ct. Robin made call to Duty Officer and gave CNR No.DLSH010066242022 Page 31 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act information regarding the recovery of Ganja. This witness was also cross- examined by Ld. Counsel for accused persons. His cross-examination is as under :
"I was on patrolling duty in beat no. 5 & 6 on 22.06.2022. Home guard Rajender was with me. I do not remember which clothes were being worn by the accused persons. I did not ask from the accused persons why they were standing there and Ct. Robin had made the enquiries. Accused Ashish was having two bags i.e. one pittoo bag of black colour and one carry bag of green colour. Accused Mukesh was carrying one carry bag. It is wrong to suggest that accused persons were not present at the spot as stated by me in chief examination. It is wrong to suggest that the accused persons were not carrying any bags.
Ct. Robin had checked their bags. I did not check their bags. The bags contained dandinumma ghassnuma substance which seemed like ganja. Ct. Robin had told me that it was like ganja and I had not seen ganja prior thereto. Ct. Robin had given the information in the police station. IO had recorded my statement. I had not told to the IO that I had given the information in the police station.
At this stage the Id. Defence counsel has confronted the witness with his statement u/s 161 CrPC dt. 22.06.2022 in which it is mentioned that I had given the information to the duty officer PS Seemapuri telephonically from point A to A. The statement is Ex.PW5/Dx1."
46. The testimony of the aforesaid two witnesses is further supported by the deposition of PW15 SI Vinit, who upon receipt of GD No.19A had reached the spot alongwith PW6 HC Sachin and had found both the accused persons as well as PW3 and PW5 present there.
47. Both PW3 and PW5 have corroborated each other in all material particulars and even in their cross-examination, nothing is found to doubt their deposition.
48. One particular contradiction was pointed out by Ld. Counsel for the accused persons in the cross-examination of both these witnesses. He pointed out that while the witnesses stated that upon finding that the accused persons were carrying Ganja, it was Ct. Robin who had informed the PS, in statement u/s.161 Cr.P.C. of both the witnesses, it is stated that it was Ct. Pradeep, who gave the information regarding recovery of Ganja to the Duty officer at PS CNR No.DLSH010066242022 Page 32 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act Seema Puri, telephonically. Thus, it is found that both PW3 and PW5 deposed in their examination-in-chief as well as in their cross-examination that it was PW3 Ct. Robin, who informed the PS about the alleged recovery of Ganja and both of them in their cross-examination admitted that their statement u/s.161 Cr.P.C. to the effect that the call was made by PW5 Ct. Pradeep was not correct and they were confronted with the said portion of the statement.
49. The said discrepancy in the statement of the two witnesses, however, do not demolish the case of the prosecution as it is found that the testimony of both the witnesses is corroborated by DD No.19A Ex. PW2/D, as per which, the call was made to the PS by Ct. Robin Kumar to inform about the recovery of Ganja like substance from the accused persons. The said fact is also recorded in the statement of Ct. Robin Kumar Ex. PW3/F, recorded by PW15 upon reaching the spot and this fact is also mentioned in the FIR lodged on 22.06.2022 Ex. PW2/A. Thus, it is found that deposition of both the witnesses is in line with the record, which was prepared contemporaneously and only because this portion was incorrectly recorded in their statements u/s.161 Cr.P.C., it cannot be said that the entire testimony of these witnesses is unreliable or untrustworthy. Moreover, no question was put to these witnesses or to the IO, during their cross-examination, to the effect that these two witnesses had read their statements u/s.161 Cr.P.C recorded by PW15/IO and found the same to be as per their statement given to the IO. In these circumstances, the said discrepancy pointed out by Ld. Counsel for accused persons cannot be said to be a material contradiction that goes to the root of the case.
50. Further, after the recovery was made by PW3 and PW5 the subsequent proceedings regarding weighing and seizing the contraband was carried out CNR No.DLSH010066242022 Page 33 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act by PW15 in the presence of these witnesses and PW6. His deposition in this regard is reproduced as under : -
"Thereafter I marked the two polythene bags containing ganja recovered from the black colour bag stated to be recovered from accused Ashish as S1 and S2. I weighed the polythenes separately on electronic weighing machine. Weight of S1 was found to be 4.952 kgs, Weight of S2 was found to be 5.080 kgs. I marked the three polythene bags containing ganja which were kept in green colour bag stated to be recovered from accused Ashish as S3, S4 and S5. I weighed the polythene bags separately. Weight of S3 was found to be 5.090 kgs, weight of S4 was found to be 5.084 kgs and weight of S5 was found to be 4.880 kgs. I kept the polythene bags Mark S1 and S2 in the same black colour bag, prepared a cloth pullanda and gave it mark A1. I kept the polythene bags mark S3, S4 and S5 in the same green colour bag, prepared a cloth pullanda and gave it mark A2. Thereafter I marked the four polythene bags which were kept in green colour bag stated to be recovered from accused Mukesh Mishra as S6, S7, S8 and S9.I weighed the polythene bags separately. Weight of S6 was found to be 5.080 kgs, weight of S7 was found to be 5.114 kgs, weight of S8 was found to be 5.092 kgs and weight of S9 was found to be 5.298 kgs. I kept the polythene bags Mark S6 to S9 in the same green colour bag, prepared a cloth pullanda and gave it mark A3. I sealed all the parcels with the seal of VP. I handed over the seal to Ct. Pradeep after use. I prepared seizure-memo already Ex.PW3/A which bears my signature at point C. I also prepared seal handing over memo already ExPW3/3 which bears my signature at point B."
51. The aforesaid deposition of PW15 is corroborated by the seizure-memo Ex.PW3/A as well as the tehrir Ex.PW2/5 and contents of FIR Ex.PW2/A and also by the testimonies of witnesses to the recovery namely PW3 and PW5. It may be noted that the aforesaid seized contraband was produced before Ld. Magistrate during proceedings under section 52A NDPS Act on 01.07.2022 Ex. AD-1. Even as per the said proceedings from the bags recovered from accused Ashish Mark A1 and A2, 10.020 kgs and 15.040 kgs ganja was found to be recovered i.e. in total 25.060 kgs. Further from the pullanda mark A2 recovered from accused Mukesh Mishra, 20.560 kgs of ganja was recovered.
52. From the testimony of the aforesaid witnesses, it stands proved that on 22.06.2022 at 2.50 am, Ganja like material was found in the bags being carried CNR No.DLSH010066242022 Page 34 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act by the accused persons. Accused Ashish was found to be carrying in total 25.086 kgs ganja like substance and accused Mukesh Mishra was found carrying in total 20.588 kgs ganja like substance.
53. The accused persons in their statement recorded under Section 313 Cr.P.C. claimed to be innocent and alleged that they were falsely implicated, however, they did not mention any reason whatsoever for their false implication. No suggestion in this regard was given to any of the witnesses during their cross- examination. The accused neither in their statement u/s.313 Cr.P.C. nor in any of the suggestions given to the prosecution witnesses, claimed animosity or acquaintance with the police officials, hence there was no ground or reason for the police to falsely implicate them in the present case. Furthermore, till date the accused persons have not raised any protest against their alleged false implication which shows that they have taken this plea for the sake of plea and there is no substance in it. It may be noted that both the accused persons claimed that they were apprehended by the police officials when they had come from Kanpur to Delhi and had alighted from the bus at Anand Vihar Bus Stand. Accused Mukesh Mishra in his statement u/s 313 CrPC categorically stated that accused persons were taken to Seemapuri Golchakar where police officials were conducting search of one or two other persons and the articles recovered from those one or two other people was planted on the accused persons. Thus, as per the said defence taken by accused Mukesh Mishra, the seizure of the alleged contraband at the spot by the police officials is not disputed, what is disputed is from whom the recovery of the alleged contraband was made. In view of the testimony of PW2, PW3, PW5, PW13 and PW15, it stands proved beyond reasonable doubt that the recovery was effected from the two accused persons and not from any one or two other persons as alleged by accused Mukesh Mishra.
CNR No.DLSH010066242022 Page 35 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
54. In view of aforementioned discussions, it is held that prosecution has successfully proved that the accused were apprehended by PW2 and PW3 along with 25.086 and 20.588 Kgs of Ganja like substance, on 22.06.2022 at 2.50 a.m. Discussion on proceedings u/s. 55 and 52A of NDPS Act
55. As per the prosecution case, PW-15 SI Vineet, the IO of the case after the recovery was effected from the possession of the accused, seized the same vide seizure memo Ex. PW3/A. In total nine packets of ganja was recovered from both the accused persons which were marked as S1 to S9 by PW15 SI Vineet. Packets S1 to S5 were recovered from the possession of accused Ashish and packets S6 to S9 were recovered from the possession of accused Mukesh Mishra. The said nine packets were separately weighed on the weighing machine. The weight of the five polythene bags containing Ganja recovered from accused Ashish : Weight of S1 was found to be 4.952 Kgs, Weight of S2 was found to be 5.080 Kgs. Weight of S3 was found to be 5.090 Kgs, weight of S4 was found to be 5.084 Kgs and weight of S5 was found to be 4.880 Kgs. The weight of four polythene bags recovered from accused Mukesh: Weight of S6 was found to be 5.080 Kgs, weight of S7 was found to be 5.114 Kgs, weight of S8 was found to be 5.092 Kgs and weight of S9 was found to be 5.298 Kgs.
56. After the polythene bags were weighed,
-the parcels S1 and S2 were kept in the same black colour bag, its cloth pullanda was prepared Mark A1,
-parcels / packets S3, S4 and S5 were kept in the same green colour bag recovered from accused Ashish, cloth pullanda was prepared Mark A2. --
CNR No.DLSH010066242022 Page 36 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
-parcels S6, S7, S8 and S9 were kept in the same green colour bag recovered from accused Mukesh, cloth pullanda was prepared Mark A3.
57. All the three cloth pullandas marked as A1, A2 and A3, were sealed with the seal of VP by PW15 SI Vinit. The seal was thereafter handed over to PW5 Ct. Pradeep vide seal handing over memo Ex.PW3/3. The aforementioned bags were seized vide seizure-memo Ex.PW3/A, which also bears signature of both the accused. Rukka was prepared by PW15 Ex.PW15/A and the same was handed over to PW3 Ct. Robin Kumar and PW5 Ct. Pradeep. The carbon copy of seizure-memo and the sealed parcels A1 to A3 were also handed over to PW3 Ct. Robin Kumar and PW5 Ct. Pradeep with direction to hand over rukka to Duty Officer PW2 SI Okesh Pal and parcels to the SHO. PW3 Ct. Robin Kumar and PW5 Ct. Pradeep alongwith the parcels, rukka, copy of seizure- memo went to PS, where rukka was handed over to the Duty Officer and the copy of seizure-memo along with sealed parcels were produced before PW12 / SHO Inspector Vinay Yadav, at about 7.00 a.m.
58. PW12 Inspector Vinay Yadav upon receiving the copy of seizure-memo and three parcels, affixed his seal of VY on the said three pullandas Mark A1 to A3 and after confirming the FIR number from the Duty Officer, PW2 SI Okesh Pal, mentioned the same on the parcels and seizure-memo. He also affixed his signatures on three parcels as well as copy of seizure-memo.
59. PW12 Inspector Vinay Yadav, thereafter handed over the sealed parcels and copy of seizure-memo to MHCM HC Raj Kumar (PW8) at about 8.30 a.m., who deposited the said parcel in Malkhana and made entry in this regard at serial no.1953/4972 in register no.19 Ex.PW8/A, which was also countersigned by the SHO.
CNR No.DLSH010066242022 Page 37 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
60. Thus, PW12 upon receiving the three parcels Mark A1, A2 and A3 duly affixed his countersealed on the said pullandas bearing the seal of VY. The deposition of PW12 in this regard is as under : -
At about 7.00 am, Ct. Robin and Ct. Pradeep came to my office and handed over to me three sealed parcels sealed with the seal of 'VP' and having mark A1, A2 and A3 and carbon copy of seizure memo. I affixed my seal on the said three pullandas with my seal of VY. After confirming the FIR Number from the duty officer, I wrote the same on all the parcels and copy of seizure memo. I also signed all the three parcels and copy of seizure memo.
I then called the MHCM 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 copy of seizure-memo to MHCM CP. I also signed at point A against the relevant entry in register no.19 which is already Ex.PW8/A. In this regard, I lodged DD entry vide no. 29A at about 8.31 am dated 22.06.2022 and same is Ex. PW12/A which bears my signatures at point A.
61. The cross examination of this witness is limited to following questions :-
It is wrong to suggest that Ct. Robin and Ct. Pradeep did not come to my office. It is wrong to suggest that no parcels were produced by them before me. It is wrong to suggest that the seals on the parcels were not intact. It is wrong to suggest that the GD entry is ante-dated and ante-timed. It is wrong to suggest that I am deposing falsely.
62. 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 countersealed on three pullandas Mark A1, A2 and A3 and thereafter depositing the same with MHCM PW8 HC Raj Kumar. The testimony of this witness is further corroborated by DD No.29A Ex.PW12/A wherein the fact regarding placing of counterseal of VY is duly recorded. Further in the entry made by PW8 in register no. 19 Ex.PW8/A it is categorically mentioned by this witness that he had placed counterseal of VY on the pullandas, the said entry bears his noting and signatures in this regard.
63. Further when the case property was produced before Ld. MM on 01.07.2022 during proceedings u/s 52A NDPS Act, the Ld. Magistrate also found all the three pullandas Mark A1, A2 and A3 sealed with the seal of VP and VY. The CNR No.DLSH010066242022 Page 38 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act relevant portion of the proceedings u/s 52A Ex.AD-1 in this regard is as under :-
At this stage, IO is directed to produce the case property. IO has produced three cloth pullada of white colour which is Mark-A1, A2 and A3 and sealed with the seal of VP and VY. Photograph of pullanda Mark-A1, A2 and A3 with seal intact is taken.
64. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of VP by PW15 SI Vineet and was further sealed at the PS by SHO PW 12 Inspector Vinay Yadav with the seal of VY was found intact by the Ld. Magistrate, when the proceedings u/s.52A were conducted on 01.07.2022. Further the Ld. Magistrate vide proceedings Ex. AD-1 took out 100 grams sample each from all the nine bags and marked them as S1, S2, X1, X2, X3, Y1, Y2, Y3 and Y4. After taking out the said samples the remaining contraband was sealed in the same pullandas mark A1, A2 and A3 and the said three pullandas and nine samples were sealed with the seal of court i.e. AN. These proceedings Ex.AD-1 were admitted by accused persons on 02.12.2024.
65. Accordingly, in the opinion of the court the provisions of section 55 and 52A were duly complied with in the present case.
Discussions on non-joining of the public witnesses
66. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested police witnesses.
67. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the CNR No.DLSH010066242022 Page 39 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act testimonies of the prosecution witnesses that PW15 SI Vineet, IO that he made sincere efforts to join public witnesses, but none agreed.
68. In this regard, PW15 deposed that he approached passerbys at Mrignaini Red light, at the spot and also at the gate of old Seemapuri, to join the investigation, but none agreed and went stating their engagements.
69. The witness was cross-examined on this aspect and he stated:-
"I reached at the spot at about 3.30 a.m. I asked few passerbys at Mrignaini red light, at the spot and also at the gate of old Seemapuri to join the investigation. I did not go to Kalyan hospital to ask any of the staff to join the investigation. I do not remember exactly whether there was any outlet namely 24x7 near the spot. ... I left the spot at about 9.00-9.30 am. I felt no need to join the independent witness in the investigation in the morning as the rukka l already been sent. ..... It is wrong to suggest that I have not conducted fair investigation. It is wrong to suggest that no public person was joined into the investigation deliberately to falsely implicate the accused persons."
70. Thus, once it has come on record that public witness could not be joined despite efforts having been made, then non joining of independent witness is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR
785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether CNR No.DLSH010066242022 Page 40 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
71. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690-1691 of 2012 decided on 19.10.12, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
72.Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
73. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with CNR No.DLSH010066242022 Page 41 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
74. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as it is clear that sufficient efforts were made by the PW-15 SI Vineet to join investigation. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
Whether recovered substance is Ganja?
75. The case of the prosecution is that the substance, which was recovered from the possessions of the accused persons is Ganja.
76. In order to prove this fact, the prosecution examined PW11 Dr. Kavita Goyal, Assistant Director (FSL), Rohini, who testified as under :
" I am working at ISL. since 1999. On 08.07.2022 nine sealed parcels marked as S1, S2, X1, X2, X3, Y1, Y2, Y3 and Y4 in FIR No.532/2022 dt 22.06.2022 u/s 20 NDPS Act PS Seemapuri along with specimen seal, forwarding letter, copy of FIR, copy of seizure memo etc were received in our office from SHO PS Seemapuri. Same were marked to me for chemical examination. The parcels were duly sealed with two seals of AN respectively. The seals were intact and were tallying with specimen seals.
On opening the parcels, the same were found containing dried greenish brown colored flowering and fruiting vegetative material, stated to be ganja, weighing 100.5 gms, 107.1 gms, 101.1 gms, 94.1 gms, 104.5 gms, 95.6 gms, 94.3 gms, 96 gms and 94.8 gms respectively.
After physical, microscopic chemical and TLC examination, Exhibit-1 was found to be ganja. After the examination, the remnants of the exhibit were kept in nine separate parcels which were sealed with the seal of K.G. FSL DELHI.CNR No.DLSH010066242022 Page 42 of 53 SC No.389/22
State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act I prepared the detailed report dated 06.02.2023 which is Ex.PW11/A"
77. The witness was cross-examined, in which only one suggestion was given to the witness, which she denied as under :
"It is wrong to suggest that I had not properly analyzed the exhibits or that I have prepared a false report at the instance of police."
78. The deposition of this witness has remained unchallenged, hence, from the deposition of this witness, it stands proved that the nine sealed parcels received at FSL on 08.07.2022 bearing the seals of AN, were found containing dried greenish brown coloured flowering and fruiting vegetative material, which upon physical, microscopic, chemical and TLC examination, was found to be Ganja.
79. Ld. counsel for accused in the written submissions did not challenge the FSL result Ex. PW11/A. He has challenged the prosecution case on this aspect on following three grounds (as mentioned in written arguments):
"Firstly, as per record The allegedly recovered substance is stated to be beejnuma, dandinuma, ghaas jaisa dikhne wala badbadane wala badbudaar padarth and same is certainly not Ganja as per law.
Secondly, the recovering officers are themselves not aware of the substance that they recovered. PW-3 Ct. Robin says 'The recovered substance from the accused persons seemed like ganja but I could not say with certainity that it was ganja", while PW-5 Ct. Pradeep says 'I did not check their bags. The bags contained dandinuma ghassnuma substance which seemed like ganja. Ct, Robin had told me that it was like ganja and I had not seen ganja prior thereto'.
Thirdly, the recovery officer himself does not know what procedure was adopted to see if it was ganja or nor. PW-5 Ct. Pradeep says 'The field testing kit was deposited with MHCM after testing the contraband. I do not remember who had checked the contraband on the field testing kit. Pertinently, a field testing kit is never used for contraband such as Ganja."
80. PW3 Ct. Robin in his examination-in-chief regarding the recovered substance deposed as under:
"One of the brownish colour (matiyala colour) bag was cut / torn and checked and found "pattinuma beej with leaves". The different kind of smell was coming from the said bag. We felt that the said article i.e. pattinuma beej with leaves seems to be Ganja".
81. PW5 Ct. Pradeep Yadav in his examination did not state that the substance CNR No.DLSH010066242022 Page 43 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act recovered in his personal opinion Ganja. He stated that the recovered substance was revealed to be Ganja. In his cross-examination, he testified as under :
"Ct. Robin had checked their bags. I did not check their bags. The bags contained dandinumma ghassnuma substance which seemed like ganja. Ct. Robin had told me that it was like ganja and I had not seen ganja prior thereto. Ct. Robin had given the information in the police station. IO had recorded my statement. I had not told to the IO that I had given the information in the police station."
82. In the opinion of the Court, Ct. Pradeep very honestly in his cross-examination admitted that he had never seen Ganja before the date of recovery. He stated that Ct. Robin told him that the substance recovered was Ganja like substance. It was argued that the said witness stated that the substance was tested with the field testing kit, which is nit done in case of Ganja. However, it is found that he was reexamined in this regard by the Ld. Addl PP in which he clarified that he was unable to comprehend what was meant by the field testing kit. The said minor contradiction does not adversely affect the recovery or the fact that the recovered substance was Ganja.
83. Ct. Robin testified that the substance was "pattinuma beej with leaves", whereas Ct. Pradeep stated that the substance was "dandinuma ghaasnuma substance."
84. It is argued by Ld. Counsel that "pattinuma beej with leave" or "dandinuma ghaasnuma substance" is not Ganja as per law.
85. To appreciate the said argument, it would be appropriate to reproduce the definition of cannabis (hemp) is contained 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;CNR No.DLSH010066242022 Page 44 of 53 SC No.389/22
State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
(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)
86. As per definition, 'Ganja' is flowering and fruiting tops of cannabis plant. The definition clarifies that the seeds and leaves of cannabis plant are not Ganja, only when they are not accompanied by the tops, meaning thereby, that if the seeds and stems are accompanied with flowering and fruiting tops, then the entire substance is "Ganja".
87. In support of the argument that that "pattinuma beej with leave" or "dandinuma ghaasnuma substance" is not Ganja as per law, Ld. Counsel for the accused relied upon judgment titled Sanjeev Kumar Vs State 2024 DHC 8163. Paras 26 to 31 of the judgment discuss whether the recovered substance in that case was Ganja. The said paras are reproduced as under:
"26. What has been focused on is the nature of substance recovered and seized. As regards 5.09 kg seizure from the bag, it is stated that it was "badbudar seelandar patti aur ghasnuma beej yukt saman" which was found on smelling, as ganja. As regards seizure from home of the applicant, the description given of 8 bags seized is of "seelandar badbudar beej yukt wa pattidar ghasnuma saman" which was also found on smelling, as ganja.
27. Counsel for applicant claims that this was obviously a heterogenous material which contained leaves and seeds, material seized cannot be counted as 'ganja' in its entirety for the purpose of determining quantity seized. For this, reference was made to the definition of ganja under Section 2(iii)(b), NDPS Act which reads as under:
"(iii) "cannabis (hemp)" means--
...
(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;" (emphasis added)
28. It is, therefore, claimed that material can be considered ganja if it is accompanied with flowering or fruiting tops; if not accompanied with flowering or fruiting tops, then seeds and leaves have to be excluded. Ex facie, as per the chargesheet, applicant claims CNR No.DLSH010066242022 Page 45 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act that material seized was described as seedy and leafy substance and, therefore, the material seized in its entirety would not constitute as ganja for the purpose of determining the quantity of contraband seized, and benefit of bail ought to be given to the applicant.
29. The FSL report dated 14th January 2021 describes exhibits/ parcels received as containing "dried greenish brown fruiting and flowering vegetative material" which were found to be "ganja". Reliance of applicant's counsel on decision of Bombay High Court in Kunal Dattu Kadu (supra) may not come to his rescue since it is stated in said decision that in para 17 that whether substance is ganja would have to be determined on the facts of the case. That case involved anticipatory bail and the issue on which the opinion of Court went in favour of accused was discrepancy in what was seized and what was analysed.
30. Though the decision in Kunal Dattu Kadu (supra) is restricted to its own facts, reference may be made to another recent decision by the Nagpur Bench of Bombay High Court in Mohammad Jakir Nawab Ali v. The State of Maharashtra thr. P.S.O., P.S. Sonala, Dist. Buldhana decision dated 20th September 2024 in Criminal Application (BA) No.602/2024. It was noted, in a seizure of 50 kgs of ganja, that there was nothing on record to show that before taking weight of material the IO had segregated the seeds or other parts of the plant in order to ascertain the exact quantity of the contraband -
ganja. The contraband seized was not mentioned as including flowering or fruiting tops of cannabis plant; since the material seized was leaves, seeds, stems, and stalks and separation had not been carried out, the Court noted that it was difficult to ascertain whether the quantity could be commercial. Court, therefore, granted bail to the applicant in that case. Relevant portions of the decision read as follows:
"5. There is no dispute that commercial quantity in relation to NDPS Act for 'ganja' means any quantity greater than 20 kg. The Section 2(iii) (b) and (c) defines 'Ganja' as 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 any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.
6. Thus the definition of term 'ganja' defines and clarifies that 'ganja' is the flowering or fruiting tops of the cannabis plant excluding the seeds and leaves when not accompanied by the tops. In the case in hand, as seen from the FIR and the investigation papers, the quantity of 50 kg. of ganja was seized from the vehicle. However, the inventory certificate as well as the recitals of the FIR, the panchnama shows that the seized articles were leaves, seeds, stems and stalks. It appears that when the gunny bag was measured with the help of weighing machine produced by the Measurer, the contraband articles containing leaves, seeds, stems and stalks. Admittedly, none of the investigating papers shows that either these materials were segregated and thereafter weighed CNR No.DLSH010066242022 Page 46 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
7. The above state of affairs would make it clear that there is nothing on record to prima facie show that before carrying weight of the seized plant of ganja, the investigating officer had segregated the seeds or the other parts of the plant in order to ascertain the exact quantity of ganja. In fact, none of the paper mentions that the said contraband articles which were seized includes the flowering or fruiting tops of cannabis plant. This fact becomes further clear from the panchanama also. The seizure panchanama also nowhere shows that the flowering or fruiting tops of cannabis plant were, in any other manner, were along with the contraband articles seized from the possession of the present applicant. Thus, on perusal of the material on record shows that what was seized was plant i.e. leaves, seeds, stems and stalks and without separating the same, the ganja was weighed. As the seized material was not weighed and after separating the leaves and the other parts and moreover it is not along with the flowering or fruiting tops. Therefore, it is difficult to ascertain whether quantity can be said to be commercial.
8. In view of Section 37 of the NDPS Act, the power to release an accused on bail subject to the limitation contained in Section 439 of the Cr.P.C. coupled with the limitation contemplated in view of Section 37 itself, mainly (1) there are reasonable ground for releasing that accused is not guilty of such offence, (2) that he is not likely to commit such offence while on bail. The expression reasonable ground means something more than prima facie ground it contemplates substantial probable cause for believing that the accused is not guilty of the offence.
9. It is significant to note that the definition of 'ganja' under NDPS Act takes in its ambit only the flowering or fruiting tops of cannabis plant and excludes the seeds and leaves when not accompanied by the tops. Thus, the definition of 'ganja' is restricted and it does not include the seeds and leaves of ganja plant.
The panchanama and seizure do not reflect presence of flowering or fruiting tops on the plant. Another aspects of the matter is whether applicants could be said to have been charged for dealing in commercial quantity of the contraband articles. The inventory certificate mentions of the plant of ganja, which is of greenish colour and it nowhere shows that it includes the flowering or fruiting tops. If at all the seeds and other parts were to be counted as fruiting part, it ought to have been excluded and weighed separately to measure the quantity of ganja." (emphasis added)
31. There is no clarity in the seizure memo as to whether the seized heterogenous material contained flowering or fruiting tops; the only reference to something of that nature comes on record from the FSL Report which mentions "dried greenish brown fruiting & flowering vegetative material". Even though the FSL report mentions it as ganja, the accused would obviously have an opportunity to argue this aspect at the stage CNR No.DLSH010066242022 Page 47 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act of trial depending on the evidence that is led."
88. The aforesaid judgment is a judgment passed on bail application of an accused under section 439 Cr.P.C. The Hon'ble Court relied upon two judgments of Bombay High Court to come to the conclusion that it was a fit case for grant of bail.
89. A similar question came up for consideration before Hon'ble Apex Court in Shiv Kumar Mishra vs. State of Goa through Home Secretary MANU/SC/0262/2009. Hon'ble Apex Court observed as under :
7. Learned Counsel for the appellant submitted that having regard to the definition of "Ganja" in Section 2(iii)(b) of the NDPS Act, the seeds and leaves ought not to have been included while weighing the seized contraband since the same was not accompanied by tops. It was urged that excluding the seeds and leaves the actual weight of the seized Ganja would be below 1 Kg. which would attract a much lesser punishment of imprisonment for a term which could extend to six months or with fine, which could extend to Rs. 10,000/-, or with both.
8. Learned Counsel for the appellant submitted that the order of the High Court reducing the period of sentence to one year was erroneous since the seized Ganja would be less than 1 Kg. and could not, therefore, be taken to comprise commercial quantity.
9. Despite several opportunities, the State did not appear to contest the matter and the same was taken up for final disposal in the absence of the State.
10. Section 2(iii)(b) of the NDPS Act defines "Ganja" as follows:
'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;
An attempt has been made on behalf of the appellant to convince us that the seized Ganja was not accompanied by flowering or fruiting tops and hence the weight of the seeds and the leaves would have to be excluded on account of the said definition, which would reduce the weight of the seized Ganja considerably so as to exclude it from the definition of commercial quantity and attract a much lesser sentence than when the seized commodity was treated to be of commercial quantity.
11. The submissions made by learned Counsel for the appellant are not convincing since from the evidence on record it has been established that the seized Ganja consisted of a greenish brown colour leafy and flowery parts of the plant (in moist condition) which, in terms of the definition of the expression "Ganja", would include the seeds and leaves of the cannabis plant since the CNR No.DLSH010066242022 Page 48 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act seized Ganja was accompanied by the flowery parts of the plant. As far as exclusion of the moisture content of the seized Ganja is concerned, there is nothing in the NDPS Act to suggest that when the weight of a quantity of Ganja is to be ascertained, the moisture content has to be separately ascertained and excluded. On the other hand, we are of the view that the weight of the contraband would be the weight taken at the time of seizure."
90. In the aforesaid judgment, Hon'ble Apex Court, was dealing with an appeal in which the accused was convicted for being in possession of Ganja. The court categorically observed that the definition of the expression "Ganja", would include the seeds and leaves of the cannabis plant where the seized Ganja was accompanied by the flowery parts of the plant.
91. To better understand as to why the recovery witnesses stated that the recovered substance was "pattinuma beej with leave" or "dandinuma ghaasnuma substance", it is necessary to understand what kind of flowers do a cannabis plant bear i.e. whether the flowers are like that of rose, marigold etc or of some other type. The court during its research on the topic found some images of the cannabis flower and fruiting material on Wiki, which are reproduced as under
to better understand the morphology of cannabis plant.
92. Upon seeing the kind of flower that cannabis plant produces, one can better understand as to why the police officials mentioned it as "pattinuma beej with leave" or "dandinuma ghaasnuma substance". A cannabis flower features CNR No.DLSH010066242022 Page 49 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act dense clusters of buds surrounded by sticky, cannabinoid- and terpene-laden trichome glands and pistils. Pistils are the cannabis' plants reproductive organ and its purpose is to receive pollen and produce seeds. Pistils serve as an indicator of the plant's maturity as they change colors over the plant's flower cycle from white to yellow, orange or red at full maturity.
93. Upon understanding the morphology of the cannabis plant, one can decipher, as to why the police officials say that the it is "pattinuma beej with leave" or "dandinuma ghaasnuma substance".
94. Moreover, the words it "pattinuma", "dandinuma" and "ghaasnuma", do not mean leaves, stems and grass, what it means is that the substance in its physical form is having physical properties like that of leaves, stems and grass.
95. Thus, the court finds no substance in the argument of the Ld. Defence Counsel that the recovered substance was not Ganja, or that the weight of the seeds and leaves is to be excluded from that of the flowering and fruiting material. As pointed out by the Hon'ble Apex Court in the aforesaid judgment, as per the definition of "Ganja" in section 2 (iii)(b), the expression "Ganja" would include seeds and leaves of the cannabis plant since the seized Ganja was accompanied by the flowery parts of the plant.
Duty Location Mismatch
96. One of the arguments of the Ld. Defence counsel is that the Ct. Robin was deputed for patrolling at DTC Depot and Ct. Satyanarayan at Pummy Sweets as per GD No. 4A, hence, how come they were present together at Old Seemapuri Golchakkar in front of Kalyan Hospital, where the said officials were never deputed for patrolling.
97. To better understand the said argument, DD 4A is reproduced as under:
CNR No.DLSH010066242022 Page 50 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
98. As per the aforesaid GD, Ct. Robin was deputed for patrolling in Beat No. 4 DTC Depot and Ct. Satyanarayan in Beat No. 3 Pummy Sweets and Ct Pradeep in in Beat No. 6 Old Seempari Gol Chakkar. They were deputed for patrolling in beat No. 4, 3 and 6 respectively and not specifically at DTC Depot, Pummy Sweets or Old Seepauri Gol Chakkar. They were patrolling in different areas within the jurisdiction of the same police station and there is nothing to show that beat No. 3, 4 and 6 were far away from each other or they did not coincide, hence they could not have met together or whether there was any bar/restriction that they could not patrol the area covered by those beats together. Moreover, one of the recovery witnesses namely Ct Pradeep was specifically assigned the duty to patrol in beat No.6 Old Seempuri Gol Chakkar.
99. Further, no question, regarding where Ct Robin conducted patrolling and how he reached the Seemapuri Gol Chakkar, was put to PW3 Ct Robin.
100. In the opinion of the court, the said argument of the Ld. Counsel is devoid of merits.
CNR No.DLSH010066242022 Page 51 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act Videography and Photography not done during the proceedings
101. 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.
102. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2022.
103. The question before the court is whether the deposition of recovery witnesses, who have corroborated each other in material particulars, can be overlooked or disbelieved, merely because they did not take photographs or video at the time of serch and seizure?
104. Ld. Counsel as regards absence of videography and photography during the proceedings relied upon judgment titled Shafhi Mohd Vs State of Himachal Pradesh SLP Criminal 2302/2017 dt 31.01.2018; Bantu (supra) and Akhil Ahmad Vs State of NCT of Delhi, Bail Application 2525/2024 dated 30.08.2024.
105. 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 recocery of contraband under the NDPS Act.
106. Perusal of judgment titled Bantu (supra) and Akhil Ahmad (supra) reveal that the said judgments were passed in bail applications, where the accused persons were arrested in NDPS case. Thus, the Hon'ble court at that stage considered the importance of videography and photography of the search and seizure proceedings, as the availability of the same at that stage of proceedings, would have fortified the case of the prosecution and may have raised the rigours under section 37 NDPS Act to a higher pedestal. The said judgments were not in cases where the recovery witnesses had been examined and the recovery was duly proved by them through deposition before the court.
CNR No.DLSH010066242022 Page 52 of 53 SC No.389/22State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act
107. Though 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.
108. Further, it may be noted that as per the defence taken by accused Mukesh Mishra, both the accused persons were taken from Anand Vihar Bus Stand to the spot, where some articles recovered from one-two other individuals was planted upon them. Thus, videography or photography at the spot would not have made much difference, as it is admitted that the recovered articles and the accused were present at the spot from where the recovery is shown to have been effected. The defence is that the recovered articles were actually recovered from someone else.
109. Accordingly, the absence of videography and photography at the spot during recovery proceedings does not make much difference in the facts of the present case.
Presumption
110. Presumption under section 35 and 54 of NDPS Act is raised in the present case against the accused persons as the recovery of contraband has been proved against them beyond reasonable doubt. The accused persons had failed to rebutt the said presumption and consequently it can be held that the accused persons were knowingly and deliberately in possession of commercial quantity of ganja. In view of the presumption under section 54 NDPS Act, as the accused persons were in possession of commercial quantity of ganja, hence they committed an offence punishable under section 20(b)(ii)(C) of NDPS Act.
It may be noted that though the charge sheet was filed under section 20 and 29 of NDPS Act, however, the accused persons were not charged for the offence under section 29 NDPS Act vide order dated 11.07.2023. The said CNR No.DLSH010066242022 Page 53 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act order was not challenged and attained finality. However, as even individually both the accused persons were found in possession of more than 20 Kgs of Ganja each i.e. 25.086 kgs of Ganja from accused Ashish and 20.588 kgs of Ganja from accused Mukesh Mishra, hence, even in absence of section 29 NDPS Act, they are individually liable to be convicted for offence under Section 20(b)(ii)(C) of the NDPS Act.
Conclusion
111. The prosecution proved beyond reasonable doubt that the accused persons were in possession of commercial quantity of Ganja (i.e. more than 20 kgs), as 25.086 kgs of Ganja was recovered from the possession of accused Ashish and 20.588 kgs of Ganja was recovered from the possession of accused Mukesh Mishra. In view of the presumption under section 35 and 54 NDPS Act, it is presumed that the accused persons had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug / ganja without any authority or licence to be in possession of the same.
112. Accordingly, accused Ashish and Mukesh Mishra are convicted of the offence punishable under Section 20(b)(ii)(C) of the NDPS Act.
113. Both the convicts are taken into custody.
114. Convicts to be heard on sentence on 28.1.2025 at 2:00 p.m. Digitally signed SAURABH by SAURABH PARTAP PARTAP SINGH LALER Announced in the open Court SINGH Date:
2025.01.27 LALER on 27.01.2025 16:08:54 +0530 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi CNR No.DLSH010066242022 Page 1 of 4 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No.389/22 State Vs. Ashish & Anr.FIR No.532/22
PS : Seema Puri U/s.20(b)(ii)(C) NDPS Act In the matter of :-
State (through Sh. Jitendra Sharma, Addl. PP) Vs.
1. Ashish S/o. Sh. Narender Kumar R/o. Village Birul, Distt. Fatehpur, Kotwali Fatehpur, UP
2. Mukesh Mishra S/o. Sh. Lakshman Swaroop R/o. Village Bandi, Distt. Fatehpur, Kotwali Fatehpur, UP ....convict persons (Sh. Karan Verma, Advocate for both convicts) Date of institution : 07.10.2022 Date when Judgment/conviction : 27.01.2025 Date of Sentence : 28.01.2025 ORDER ON SENTENCE
1. Convict Ashish and Mukesh Mishra were convicted on 27.1.2025 for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic CNR No.DLSH010066242022 Page 2 of 4 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act Substances Act, 1985 (in short "the NDPS Act") as they were found to be in illegal possession of total 45.674 Kg Ganja (commercial quantity) in three pitthu bags (i.e. 25.086 Kg in two pitthu bags from convict Ashish and 20.588 Kg in one pitthu bag from convict Mukesh Mishra) on 22.06.2022 at about 2.50 a.m
2. Arguments on sentencing heard.
Punishment prescribed by law:
3. 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)
4. The punishment prescribed for offence under section 20(b)(ii)(C) NDPS Act is:-
1. rigorous imprisonment for a term which a. shall not be less than ten years b. BUT which may extend to twenty years AND
2. fine which CNR No.DLSH010066242022 Page 3 of 4 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act a. shall not be less than one lakh rupees b. BUT may extend to two lakh rupees:
Arguments:
5. The learned counsel Sh. Karan Verma for the convicts, submitted that this is the first offence by the convicts. He further stated that convict Ashish had undergone custody for about two years and five months and convict Mukesh Mishra had undergone custody for about two years and two months and requested that lenient view may be taken. Convicts belong to labour class and poor families. Convict Mukesh is patient of leprosy and has responsibility of his wife and two minor children as well as old age parents. Convict Ashish is the sole bread earner supporting his old age mother who is a road side flower vendor.
6. Ld. Addl PP on the point of sentence submitted that the convicts were in conscious possession of commercial quantity of ganja, which shows that they are part of syndicate dealing in drug trafficking which is adversely affecting the youth of the country. He further submitted that such kind of activities are a threat to the future of the nation.
Considerations:
7. At this stage of sentencing, the court acknowledges that protecting society and preventing criminal behavior should be the objective of the law, achieved by imposing an appropriate sentence. It is the duty of the court to award a proper sentence considering the nature of the offence and how it was committed. Criminal law generally adheres to the principle of proportionality, prescribing liability according to the culpability of each type of criminal conduct. A balance between crime and punishment is respected in principle.
8. Thus, the court must consider the facts and circumstances of this case to determine a just and appropriate sentence for the offences under 20(b)(ii)(C) NDPS Act, taking into account the aggravating and mitigating factors.
9. Aggravating circumstances:
a. None.
10. Mitigating circumstances:
a. The convicts have remained in custody for over two years. b. The convicts belongs to a poor family.
c. Convict Mukesh is patient of leprosy and has responsibility of CNR No.DLSH010066242022 Page 4 of 4 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act his wife and two minor children as well as old age parents. Convict Ashish is the sole bread earner supporting his old age mother who is a road side flower vendor.
d. No other convictions have been reported against the convict.
Order on Sentence:
As the convicts have been convicted for offences under 20(b)(ii)(C) NDPS Act on 27.01.2024, in view of the mitigating circumstances and no previous involvement of the convicts, they are sentenced as follows:
1. Convict Ashish is sentenced to:
a. rigorous imprisonment for a term of ten years b. pay fine of one lakh rupees c. in default of payment of fine rigorous imprisonment for six months.
2. Convict Mukesh Mishra is sentenced to:
a. rigorous imprisonment for a term of ten years b. pay fine of one lakh rupees c. in default of payment of fine rigorous imprisonment for six months.
11. The convicts are given the benefit under Section 428 Cr. P.C.
12. Fine not paid.
The file be consigned to the Record Room. Digitally signed SAURABH by SAURABH PARTAP SINGH PARTAP LALER Announced in the open Court SINGH Date:
on 28.01.2025 LALER 2025.01.28
14:36:13 +0530
(S.P.S. Laler)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi