Delhi District Court
Narcotics Control Bureau vs Abdul Hamid Turkman on 22 September, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No. 85/2020
CNR No. DLND010020832020
U/S 21(b) & 23(b) NDPS Act
NCB Vs. ABDUL HAMID TURKMAN
Date of Institution : 03.03.2020
Date of Arguments : 06.09.2025
Date of Judgment : 22.09.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 8
4. Plea of the Accused 17
5. Submissions made on behalf of the NCB 18
6. Submissions made on behalf of the Accused 20
7. Relevant Law & the Case Laws 24
8. Appreciation of Evidence 32
9. Conclusion & Findings 50
Digitally signed by
ATUL ATUL AHLAWAT
AHLAWAT Date: 2025.09.22
16:04:08 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/22.09.2025
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 1 of 57
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No. 85/2020
CNR No. DLND010020832020
NCB Vs. ABDUL HAMID TURKMAN
U/S 21(b) & 23(b) NDPS Act
Brief Details of the Case & Memo of Parties
NCB VERSUS ABDUL HAMID TURKMAN
Date of Institution : 03.03.2020
Date of Arguments : 06.09.2025
Date of Judgment : 22.09.2025
A) Session Case No. : 85/2020
B) Charges framed under section : 8 r/w 21(b) & 23 (b)
of NDPS Act, 1985.
C) Name of the complainant : IO Deepak Atri
D) Name of the accused : Abdul Hamid
Turkman
S/o Sh. Shait Murad
R/o Vill-Khanbad,
Aakcha, Mazar
Sharif, Afghanistan
E) Plea of the accused : Not guilty
F) Final Order : Acquitted
Digitally
signed by
ATUL
ATUL AHLAWAT
G) Date of Order : 22.09.2025 AHLAWAT Date:
2025.09.22
16:04:21
+0530
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 2 of 57
JUDGMENT
(Pronounced on the 22nd day of September, 2025) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 28.12.2019, when a secret information was received by Intelligence officer Sh. Chetan Sharma at about 10:45 am. As per the information, one Afghanistan based drug trafficker was sending the contraband through accused Abdul Hamid Turkman, who was also an Afghan national. As per the information, the contraband was swallowed by the accused and he would be arriving at Terminal-3 of IGI Airport on 28.12.2019, while traveling on Afghanistani passport bearing no. P02356063. The accused was supposed to travel to India by Ariana Airline Flight No. FG 313.
2. Intelligence Officer Sh. Chetan Sharma, immediately informed the Superintendent, NCB Sh. Amit Kumar Tiwari. The said information was then assigned to IO Rajeev Sehrawat, who was directed to constitute a team and to take further action as per the law.
3. IO Rajeev Sehrawat alongwith JIO Jameel Saifi, Sepoy Yogesh Kumar Sharma and Driver Babu Lal reached IGI Airport Terminal No. 3 in a government vehicle at about 01.00 pm on 28.12.2019 and made enquiries about the flight no. FG 313. It was found out that the flight was delayed for about 2 hours and it Digitally was scheduled to land at around 06:15 pm. Thereafter, around signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2025.09.22 16:04:29 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 3 of 57 +0530 07.00 pm, the accused person was identified, while he was coming out from the terminal building. IO Rajeev Sehrawat introduced himself and his other team members to the accused and thereafter they checked the passport and other traveling documents of the accused. The accused was informed about the secret information received and that the accused was suspected to be carrying the drugs after swallowing the contraband in the form of capsules. As per the IO, the accused admitted that he had swallowed the capsules containing heroin. The IO immediately informed the Superintendent, NCB DZU telephonically and thereafter, the accused was taken to Safdarjung Hospital OPD.
4. At Safdarjung hospital, after the X-ray was conducted, the accused was admitted for further procedure and report to the said effect was prepared by the IO and was duly submitted before the Superintendent, NCB DZU. The MLC of the accused was prepared on 28.12.2019 and same was duly filed alongwith the complaint.
5. The accused remained admitted in Safdarjung Hospital from 28.12.2019 to 03.01.2020 and in the hospital, the capsules which were swallowed by him were duly expelled from his body.
The concerned duty doctor informed the IO that all the capsules which were present inside the body of the accused were expelled and no more capsules were left inside his stomach. The IO prepared the report to the said effect and he informed the Superintendent, NCB DZU. Thereafter, the Superintendent directed IO Sh. Thakur Singh to constitute a team and to take further action as per the law. The second IO Sh. Thakur Singh Digitally signed by ATUL AHLAWAT ATUL Date:
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 4 of 57 AHLAWAT 2025.09.22 16:04:37 +0530 then constituted a team consisting of himself, JIO Jameel Saifi, Sepoy Yogesh Kumar Sharma and Driver Babu Lal. The report to the said effect was also prepared and filed before the superior officers.
6. On 03.01.2020, IO Thakur Singh collected the seal of NCB DZU - 4 from the Superintendent and after making relevant entry in the seal movement register, the IO collected the DD Kit, weighing machine etc. and one official language translator was arranged and the team left the NCB office at about 11.30 am and reached Safdarjung Hospital. The concerned doctor told the IO that the accused was going to be discharged from the hospital and the IO requested Dr. Hemraj and other doctors present there to become independent witnesses for the search proceedings.
Thereafter, on the request of IO, Dr. Hemraj and Dr. Renu agreed to become independent witnesses for search and seizure proceedings. In the presence of the accused, the official translator and independent witnesses, the expelled capsules, which were 18 in number were cut opened one by one and they were all found containing "off-white powdery substance". The small amount from each capsule was taken out and tested one by one with the help of the testing kit and all the said substances tested positive for heroin. The capsules were kept in transparent polythene and weighed. The total weight of the powder from all 18 capsules came out to be 142 grams. The IO then prepared two representative samples of 5 gram each and they were kept in two transparent ziplock pouches and marked as Mark A1 and A2, respectively. The remaining substances were kept in a transparent polythene, which was tied with a plastic thread (sutli). The Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 5 of 57 2025.09.22 16:04:45 +0530 packing material was also kept in separate polythene bag and both the remaining substances and packing material were given Mark A and Mark B, respectively. The luggage trolley bag of the accused was searched, however no suspected items was found in it and it was also put in a plastic gunny bag and converted into a pullanda. The IO affixed seal of 'NARCOTICS CONTROL BUREAU DZU-4' on all the parcels and the panchnama proceedings were prepared at the spot and the specimen seal was affixed thereon as well. The panchnama was read over to the accused and it was then translated to the accused in the vernacular by the translator Ms. Puspa Kumari. It was also signed by the independent witnesses.
7. On 03.01.2020, IO Thakur Singh gave notice u/s 67 to the accused and he was directed to come to NCB office for giving his statement and for examination. The contents of the notice were duly read over and briefed to the accused through the translator.
Since, the accused informed the IO that he was not aware of the whereabouts of the NCB office, he accompanied the NCB officials to their office in R. K. Puram.
8. On 03.01.2020, IO Thakur Singh also gave notices u/s 67 of the Act to both the independent witnesses, for recording their statements on 17.01.2020. Similar notice was also given to the translator Ms. Puspa Kumari u/s 67 of the Act.
9. After the voluntary statement of the accused was recorded on 03.01.2020 u/s 67 of the Act, the IO placed him under arrest for commission of the offences punishable u/s 8 r/w 21 and 23 of Digitally signed by ATUL ATUL AHLAWAT CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 6 of 57 AHLAWAT Date:
2025.09.22 16:04:55 +0530 NDPS Act at 06.40 pm. Thereafter, the grounds were explained to him and his jamatalashi was conducted and the information regarding his arrest was given to the person he had desired. The seizure report u/s 57 was prepared on 04.01.2020 by IO Thakur Singh and same was given to Superintendent, NCB DZU. Similar report u/s 57 of the act qua the arrest of the accused was prepared and forwarded. The IO also informed about the arrest in prosecution of the accused to MEA and FRRO.
10. On 06.01.2020, the Superintendent Amit Kumar Tiwari prepared the test memo form and the sample Mark A1 alongwith duplicate test memo form and the forwarding letter were sent to chemical examiner, CRCL
11. On 06.02.2020, the FSL report from CRCL New Delhi was received, which had given the positive result of the sample matching for heroin. The IO completed the investigation and the complaint was filed before this Court by IO/complainant Deepak Attari on 02.03.2020, as an authorized officer, to file the complaint before this court vide notifications SO 763, (E) dated 27.09.1989 and SO 585, (E) dated 25.02.2016.
12. After compliance of section 207/208 Cr.P.C, 1973, the charges were framed by my Ld. Predecessor on 07.01.2021 u/s 8 r/w Section 21 (b) and 23 (b) of the NDPS Act, 1985 against the accused Abdul Hamid Turkman. The accused pleaded not guilty and he had claimed trial.
Digitally signed by ATULAHLAWAT ATUL AHLAWAT Date:
2025.09.22 16:05:04 +0530 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 7 of 57 Prosecution Evidence:
13. To prove its case, the prosecution has examined 10 (ten) witnesses, out of which there is 1 Expert/FSL Witness; two independent public witnesses; complainant; two IOs; and one search and seizure witness and remaining are formal witnesses from NCB.
14. Expert witness:
(14.1.1) PW-1 is Sh. Ajay Karar and he is the CRCL Expert. He had prepared the CRCL Report dated 06.02.2020, Ex. PW-1/2, after he had examined the parcel marked as Mark A- 1, under the supervision of Dr. Purnima Mishra, CE. After the examination/analysis of the sample, it was found positive for heroin. He identified his own signatures and also the signatures of Dr. Purnima Mishra, CE on the report.
(14.1.2) PW-1 Sh. Ajay Karar had also deposed that he had issued the receipt of receiving the sample and diary number of the same was made as CLD-1478(N), Ex.PW1/1. He also identified the remnant samples, which were produced by the Sepoy from NCB on the date of his examination in chief. He had identified the sealed envelope with the seal of CRCL (Central Revenues Control Laboratory Govt of India - 2), Ex.P-1 and the sample which was in the form of "off-white powder and lumps", which was examined by him under the control and supervision of Dr. Purnima Mishra. The said remnant sample alongwith the ziplock pouch was exhibited as Ex.P-2 (colly). Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:05:14 +0530 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 8 of 57
15. Independent public witnesses:
(15.1.1) PW-7 is Dr. Renu Kumawat and she is the then PG Resident (Medicine), working at Ward no. 16, Safdarjung Hospital, New Delhi. She had deposed that on 03.01.2020, few unknown persons approached her and introduced themselves as NCB officials. She was requested to become independent witness for search and seizure proceedings qua the seizure of contraband ingested by patient namely Abdul Hamid Turkman, who was already admitted in the said hospital through the NCB officials. She agreed to become the independent witness.
(15.1.2) PW-7 Dr. Renu Kumawat further deposed that in presence of accused, Dr. Hemraj Meena and herself, the NCB officials brought 18 capsules, however, she did not know from where the said capsules were brought by the NCB officials, since she was not on duty when the said contraband was allegedly expelled by the accused and she was only informed about it by the NCB officials.
(15.1.3) PW-7 Dr. Renu Kumawat further deposed that all the capsules were cut opened by the NCB officials and after they were weighed, the total weight came out to be 142 grams. Two samples of 05 grams each were drawn and thereafter the personal belongings of the accused were checked, however nothing incriminating was recovered from him. She identified her signature on seizure memo Ex.PW3/3 and also the signatures of Dr. Hemraj Meena. She also deposed that she had received the Digitally signed by ATUL ATUL AHLAWAT CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 9 of 57 AHLAWAT Date:
2025.09.22 16:05:23 +0530 copy of notice u/s 67 of the act, Ex.PW3/8 and also admitted her signatures on the statement u/s 67 of the Act, Ex.PW7/A. (15.1.4) PW-7 Dr. Renu Kumawat was declared hostile by the NCB and she was subjected to cross examination. The Ld. SPP for NCB conducted the cross examination of PW7 and in the said cross examination she had deposed that it was correct that after being asked to become the independent witness, the NCB officers, in presence of the accused and in her presence and presence of other independent witness took out the capsules from the sealed locker and the said facts were duly stated by her in her statement Ex.PW7/A. She also admitted that on opening the said locker, the NCB officials took out the polythene, which contained the said 18 capsules, which were expelled by the accused and they were counted by the officials in her presence. She also categorically admitted that the said capsules were cylindrical in shape and while cutting them open, they were found containing off-white powdery substance and upon testing the small quantity of substance from each capsule, the NCB official found that it tested positive for heroin. Furthermore, the total weight of the substances were found to be 142 grams and that after taking two samples of 5 grams each, two separate transparent ziplock pouches and the remnant polythene were all sealed by the NCB officials in her presence. The NCB official also sealed the trolley bag of the accused in a plastic bag and the notice u/s 67 of the act was issued to her on the same day. She also categorically deposed that due to lapse of time, she was not able to depose complete facts at the time of her examination in chief conducted on 28.08.2023. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:05:30 +0530 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 10 of 57 (15.2.1) PW-9 is Dr. Hemraj Meena and he is the then Senior Resident, working at Ward no. 16, Safdarjung Hospital, New Delhi. He had deposed that accused Abdul Hamid Turkman was admitted in their hospital on 03.01.2020 and few officials of NCB approached him and Dr. Renu Kumawat and requested them to become independent witnesses to the proceedings. He and Dr. Renu Kumawat accepted the said request and the NCB team was accompanied by one translator namely Ms. Puspa Kumar as well. Thereafter, the seizure proceedings were initiated in their presence and the presence of accused and translator Puspa Kumari.
(15.2.2) PW-9 is Dr. Hemraj Meena further deposed that NCB officials in their presence took out the capsules from the sealed locker and on opening the said locker, the NCB officials took out the polythene, which contained the said 18 capsules, which were expelled by the accused and they were counted by the officials in his presence. He also categorically deposed that the said capsules were cylindrical in shape and while cutting them open, they were found containing "off-white powdery substance" and upon testing the small quantity of substance from each capsule, the NCB official found that it tested positive for heroin. Furthermore, the total weight of the substances were found to be 142 grams and that after taking two samples of 5 grams each, two separate transparent ziplock pouches and the remnant polythene were all sealed by the NCB officials in his presence. The NCB official also sealed the trolley bag of the accused in a plastic bag and the notice u/s 67 of the act was Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:05:48 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 11 of 57 +0530 issued to him on the same day. He also categorically deposed that NCB officials took their dated signature on a paper slip and they were pasted on all the pullandas marked Mark A1, A2, A&B and thereafter they were sealed with the seal of NCB DZU 4. The panchnama was prepared and he appended his signatures on the same. He duly identified his signatures and the signatures of Dr. Renu Kumawat. He also deposed that he voluntarily gave his statement u/s 67 of the act, Ex.PW9/A.
16. NCB Officials:
(16.1.1) PW-2 is Ct. Atul Kumar Shahi and through his testimony, the NCB has sought to prove that the samples were sent to CRCL on 06.01.2020 through him by Sh. Amit Kumar Twari, Superintendent. He had deposed that after he was called to the chamber of the Superintendent, he was handed over one sample Mark A1 and the office copy of the forwarding letter, Ex.PW2/1 was given and he went to CRCL New Delhi alongwith the said sample, forwarding letter and test memo form. He received the receipt Ex.PW1/1 and handed over the same to the Superintendent, after duly submitting the samples before CRCL. Till the time, the samples remained in his custody, no one had tampered with them.
(16.2.1) PW-5 is IO Chetan Sharma and he had deposed that on 28.12.2019, while he was posted at NCB DZU, he received the secret information about the accused Abdul Hamid Turkman having passport no. P02356063, had swallowed the drug filled capsules and he was to arrive at IGI Airport Terminal
- 3 on 28.12.2019 by Ariana Airline Flight No. FG-313. He Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 12 of 57 2025.09.22 16:05:54 +0530 reduced the said information into writing, vide Ex.PW5/A and had put it before the Superintendent Sh. Amit Kumar Tiwari.
(16.3.1) PW6 is Ex.IO Rajeev Sehrawat and he had deposed that on 28.12.2019, while he was working as Intelligence Officer at NCB DZU, Superintendent Amit Kumar Tiwari called him in his office and marked the secret information, Ex.PW5/A to him for taking appropriate action as per the law. Thereafter he constituted a team comprising of himself, PW4 JIO Jameel Saifi, Yogesh Kumar Sepoy and Babu Lal Driver. They reached IGI Airport Terminal-3 by official government vehicle bearing registration no. DL12C 5578 at about 01.00 pm. After reaching the airport, they were informed that the flight FG 313 was running late behind its schedule and the said flight reached Delhi at about 06.15 pm and at about 07.00 pm, the accused who was matching the description was identified, while he was coming out of the Terminal Building. He stopped the accused and introduced himself and his other team members. He checked the passport and other traveling documents pertaining to the accused. He shared the information received from the secret informer with the accused and inquired about the drugs that the accused was carrying. On enquiry, accused admitted that he had swallowed the capsules containing heroin.
Thereafter, he informed the Superintendent about the said fact and took the accused to Emergency at Safdarjung Hospital.
(16.3.2) PW6 Ex.IO Rajeev Sehrawat further deposed that the doctors at Safdarjung Hospital upon medical examination of the accused found foreign bodies in the stomach of the accused Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 13 of 57 16:06:10 +0530 and the accused was admitted for further treatment and expulsion of the said foreign bodies. He prepared the report Ex.PW5/A and submitted the same before the Superintendent. Thereafter on 03.01.2020, he received the information from the hospital that the accused had expelled all the capsules and they were none left in the stomach and he would be discharged from the hospital on the same day. He recorded the said information in writing vide Ex.PW3/1 and produced the same before the Superintendent concerned. He correctly identified the accused before the Court.
(16.4.1) Through the testimonies of PW3 Second IO Thakur Singh and PW4 JIO Jameel Saifi, the NCB has sought to bring on record that on 28.12.2019, PW4 JIO Jameel Saifi had joined the team which apprehended the accused from IGI Airport. Thereafter, PW4 JIO Jameel Saifi was also the member of the team led by PW3 Thakur Singh on 03.01.2020. They both deposed that on 03.01.2020, after first IO PW6 Rajeev Sehrawat informed the Superintendent that the accused had expelled all the capsules and he would be discharged from the hospital, upon the directions of the Superintendent, PW3 constituted a team consisting of himself, PW4, Sepoy Yogesh Kumar Sharma and driver Babu Lal. The IO PW3 Thakur Singh recorded the information, Ex.PW3/1, which contained the signatures of PW6 Rajeev Sehrawat and PW10 Anil Kumar Tiwari. He also identified his signatures on seal register, Ex.PW3/2.
(16.4.2) PW3 Second IO Thakur Singh and PW4 JIO Jameel Saifi had further deposed that after PW3 collected the DD Kit, IO Kit, weighing machine and other article, they left the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 14 of 57 16:06:55 +0530 NCB office at about 11:30 am on 03.01.2020 alongwith the translator namely Puspa Kumari and reached ward no. 16, H Block, Safdarjung Hospital and met Dr. Hemraj. Upon the request of PW3, PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena agreed to become independent witnesses. Both PW3 and PW4 fully corroborated each other and the testimonies of PW7 and PW9 regarding the search and seizure proceedings. PW3 prepared the seizure memo Ex.PW3/3 containing the documents and discharge summary. Through the testimony of PW3, the documents, photocopy of passport, discharge slip of the accused, notice u/s 67 of the Act addressed to the accused and notices issued to Dr. Hemraj Meena, Dr. Renu Kumar and Translator Puspa Kumari were brought on record as Ex.PW3/4 to PW3/9, respectively.
(16.4.3) PW3 Second IO Thakur Singh and PW4 JIO Jameel Saifi had further deposed that accused voluntarily accompanied them to the NCB office and they brought the seized material and the samples back to the NCB office. The official seal was returned to the Superintendent and he identified the signatures on the relevant entries made in the malkhana register, Ex.PW3/10. PW3 recorded the voluntarily statement of the accused u/s 67, Ex.PW3/11 and prepared his arrest memo-cum- jamatalashi, Ex.PW3/12. PW3 also identified the MLC, Ex.PW3/13 and the seizure report u/s 57, Ex.PW3/14 and arrest report u/s 57, Ex.PW3/15, PW3 also prepared intimation of arrest/prosecution of foreigner to MEA, with copy to MHA and FRRO vide letter Ex.PW3/16. They correctly identified the case properties produced before the Court. Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22
16:07:03
+0530
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 15 of 57
(16.5.1) PW10 is Sh. Amit Kumar Tiwari and he is the then
Superintendent, NCB DZU. He had deposed that on 28.12.2019, at about 10:45am, IO Chetan Sharma placed the information Ex.PW5/A before him and he had marked the same to IO Rajeev Sehrawat and directed him to constitute a team to take action as per law. On the same day, IO Rajeev Sehrawat submitted his report before him. Thereafter on 03.01.2020, IO Rajeev Sehrawat placed the information regarding accused expelling all the capsules from inside his stomach and the said information, Ex.PW3/1 was placed before him and he marked the same to IO Thakur Singh alongwith a direction to constitute a team and take further action as per the law. He also issued the seal of NCB DZU 4 to the IO Thakur Singh. On the same day, the case properties were deposited in the malkhana alongwith the test memo in triplicate. On 04.01.2020, IO Thakur Singh submitted the seizure and arrest reports u/s 57 of the Act, before him and on 06.01.2020 he sent the samples to CRCL through Sepoy Atul Kumar Shahi. The CRCL Report was received on 21.02.2020 and he deposited the remnant samples in the malkhana.
(16.6.1) PW8 is complainant/Ex-IO Deepak Atri and he had deposed that during the relevant period i.e. between 28.12.2019 to 02.03.2020, he was working as an IO in NCB DZU and in the discharge of his official duties, he had filed the prosecution complaint, Ex.PW8/A containing 100 pages. He categorically deposed that during the course of investigation, he found material incriminating evidences against the accused, Digitally signed by ATUL AHLAWAT ATUL Date:
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 16 of 57 AHLAWAT 2025.09.22 16:07:10 +0530 clearly showing his involvement in the present crime. During the investigation on 14.01.2020, he wrote a letter to Station Manager, Ariana Afghan Airlines for providing the certified copy of the manifesto and booking of ticket of flight no. FG 313 dated 28.12.2019. He also wrote letter to Asst. Director CCTNS-1 for obtaining the previous involvement report of the accused. He also sent a letter alongwith the mobile phone Samsung Galaxy J3 DUOS with one SIM which was recovered in the jamatalashi of the accused to Director SIFS for creating the clone imagine of the said phone. He also got the visa and passport of the accused verified from Foreigners Division, MHA. He also recorded the statement of translator Ms. Puspa Kumari u/s 67 of NDPS Act.
After receiving the reply from CCTNS, MHA, Ariana Afghan airlines and SHO PS Safdarjung Enclave verifying the antecedents of the accused, he filed the present complaint.
Plea of the Accused:
17. After completion of the prosecution evidence, Prosecution Evidence was closed. The statement of the accused was recorded under Section 313 Cr.P.C., 1973 in which he had pleaded his innocence. He had simpliciter denied all the incriminating evidence that came up in the testimonies of the prosecution witnesses. He had specifically stated that no recovery was effected from him and he has been falsely implicated at the instance of the IO and the contraband was planted upon him after it was recovered from another Afghan National who was arrested with him. He was unlawfully arrested at T-3 IGI Airport and kept at Safdarjung hospital for no valid reason and he was made to Digitally signed by ATUL AHLAWAT ATUL Date: CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 17 of 57 AHLAWAT 2025.09.22 16:07:17 +0530 sign certain documents, which were already prepared, prior to taking the signatures and he was falsely implicated in the present case and all the witnesses deposed falsely at the instance of the IO.
18. The accused chose not to lead any Defense Evidence and same was closed accordingly.
19. I have heard the arguments advanced by Sh. Arun Khatri, Ld. SPP for NCB and Sh. Sidharth Srivasatava, Ld. Counsel for the accused. I have also minutely gone through the evidence brought on record and the other material aspects of the case.
Submissions made on behalf of the NCB:
20. It has been argued by the Ld. SPP for NCB that through the clinching and unimpeachable testimony of the prosecution witnesses, the NCB has been able to discharge its burden beyond reasonable doubt that a secret information was received by PW5 IO Chetan Sharma on 28.12.2019, Ex.PW5/A regarding accused Abdul Hamid Turkman swallowing the contraband in form of capsules and he was arriving at Terminal - 3, IGI Airport on 28.12.2019 itself, in Ariana Airline Flight No. FG 313.
21. It has been further argued by the Ld. SPP for NCB that after informing the Superintendent, PW10 Amit Kumar Tiwari about the secret information, the said Superintendent had directed PW6 Rajeev Sehrawat to constitute a team to take further necessary action as per law. It had come in the testimony of PW6 IO Rajeev Sehrawat and PW4 JIO Jameel Saifi that they had reached IGI Digitally signed by ATUL ATUL AHLAWAT CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 18 of 57 AHLAWAT Date:
2025.09.22 16:07:26 +0530 Airport in the official vehicle and got to know that the flight was running late and it reached Delhi at about 06:15 pm. Accused Abdul Hamid Turkman was apprehended at about 07:00 pm, while he was coming out of the terminal building. Upon enquiry, Accused Abdul Hamid Turkman admitted that he had swallowed the capsules containing heroin and thereafter PW6 IO Rajeev Sehrawat informed the Superintendent PW10 Amit Kumar Tiwari and the accused was taken to Safdarjung Hospital.
22. It has been further argued by the Ld. SPP for NCB that through the categorical testimony of PW6 IO Rajeev Sehrawat, PW4 JIO Jameel Saifi and PW3 Second IO Thakur Singh, the NCB had duly proved beyond reasonable doubt that the accused had expelled 18 capsules containing the contraband, while he was admitting in the hospital. The IO requested independent witnesses PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena and the seizure proceedings were carried out in the presence of the said independent witnesses, the accused and the translator Ms. Puspa Kumari. The panchnama Ex.PW3/3 was duly proved to the testimonies of said witnesses.
23. It has been further argued by the Ld. SPP for NCB that the sample from the recovered 18 capsules were sent to the CRCL by orders of PW10 Superintendent Amit Kumar Tiwari, through PW2 Sepoy Atul Kumar Sahi and vide report Ex.PW1/2, which was brought on record during the testimony of PW1 Sh. Ajay Karar, the prosecution has duly proved that the sample contained 52.7 percentage of diacetylmorphine (heroin). Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:07:33 +0530 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 19 of 57
24. It has been further argued by the Ld. SPP for NCB that through the unimpeachable testimonies of PW5 IO Chetan Sharma, PW6 IO Rajeev Sehrawat, PW3 IO Thakur Singh and PW10 Superintendent Amit Kumar Tiwari, the prosecution has duly proved that all the mandatory statutory compliances under the NDPS Act, 1985 were duly adhered to.
25. It has been further argued by the Ld. SPP for NCB that since there was recovery of total 142 grams of heroin from the 18 capsules which were swallowed by the accused Abdul Hamid Turkman and he had illegally brought the said contraband without any authorization and licence into India, therefore, he had contravened the provisions of Section 8 of the Act and has committed the offences punishable u/s 21 (b) and 23 (b) of the NDPS Act.
Submissions made on behalf of the Accused:
26. It is submitted by the Ld. Counsel for the accused that the accused has been falsely implicated in the present case and no recovery was effected from his possession. The entire story as put forth before this Court has been concocted by the IO and all the prosecutions formal witnesses have deposed falsely at the behest of the IO. The contraband was illegally planted upon the accused and he had not swallowed any capsules containing the contraband and no such capsules were expelled by him, while he was illegally detained at the Safdarjung Hospital.
27. It is further submitted by the Ld. Counsel for the accused that Digitally signed by ATUL AHLAWAT ATUL Date: CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 20 of 57 AHLAWAT 2025.09.22 16:07:51 +0530 it had duly come in the testimony of PW6 IO Rajeev Sehrawat that more than one Afghan national were apprehended at Terminal-3 arrival area on 28.12.2019 and he had admitted during his cross examination that he was not accompanied by any interpretor/translator at that time and also that the accused was not well conversant with Hindi language.
28. It is further submitted by the Ld. Counsel for the accused that there has been unexplained delay of over 5 days in preparation of the seizure memo Ex.PW5/E, after the alleged recovery took place earlier, as allegedly recorded in the panchnama Ex.PW3/3.
The prosecution has not proved any record to show the chain of custody of the alleged contraband during the interim period, as to where the substance was kept or as to whether any safeguards were taken to prevent the tampering. No witness from Safdarjung Hospital deposed regarding the recovered capsules being kept in the locker or that the same was sealed by the NCB officials in their presence and it was taken out in the presence of independent witnesses on 03.01.2020.
29. It is further submitted by the Ld. Counsel for the accused that as per the case of NCB, the 18 capsules were allegedly expelled by the accused on 28.12.2019, 29.12.2019 and lastly on 30.12.2019 and yet no member of the hospital staff was assigned the responsibility of ensuring the integrity and security of the said contraband during the period leading upto the panchnama being prepared on 03.01.2020.
30. It is further submitted by the Ld. Counsel for the accused that Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 21 of 57 16:07:59 +0530 it had categorically come in the cross examination of IO PW6 Rajeev Sehrawat that although he had prepared the report Ex.PW5/A, in which the doctor concerned had not mentioned as to the presence of any foreign bodies in the body of the accused. He had merely voluntarily deposed that the concerned doctor had informed him orally. No such doctor was made a prosecution witness in the present case. PW6 had further categorically admitted in his cross examination that he had not joined the investigation on 28.12.2019 and he had received the said information from the hospital on 03.01.2020 itself, thereby rendering his entire testimony highly unbelievable.
31. It is further submitted by the Ld. Counsel for the accused that as far as the chain of custody of the allegedly expelled capsules, it had categorically come in the cross examination of PW10 Superintendent Amit Kumar Tiwari that he did not remember, if any surveillance team was deployed at the hospital between 28.12.2019 to 03.01.2020. He also did not remember, whether he had deputed any team/officer to seize the drugs, which were allegedly expelled by the accused between 28.12.2019 to 03.01.2020. He had also admitted that he did not issue any seal to any officer prior to 03.01.2020, in the present case. Therefore, the NCB has miserably failed to establish the chain of custody of the contraband and the benefit of the same must go to the accused.
32. It is further submitted by the Ld. Counsel for the accused that as per the case of NCB, the accused was admitted in Safdarjung Hospital on 28.12.2019, yet the said MLC although filed Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:08:07 +0530 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 22 of 57 alongwith the complaint was never brought on record through the testimony of any prosecution witness. The concerned doctor who prepared the said MLC and the concerned official, whose name is recorded in the said document as the person who took the accused to the accused was also not examined before this Court.
33. It is further submitted by the Ld. Counsel for the accused that as per the discharge summary, which was merely brought on record through the testimony of the IO, the said document was prepared by PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena, yet the said document was never put to the said witnesses and in their entire testimonies, they did not depose about anything which took place between 28.12.2019 to 03.01.2020. Therefore, serious doubts are created upon the entire case of the prosecution.
34. It is further submitted by the Ld. Counsel for the accused that there has been complete non compliance of Section 50 of the act. Before searching the accused or taking him to the hospital for X- ray or any subsequent medical procedure, no notice u/s 50 was given to the accused. The personal search memo does not reflect any such notice. Therefore, serious doubts upon the credibility of the prosecution's case have been created, since the abdominal search in the form of X-ray falls under the definition of 'search of person', as per the law laid down by the Hon'ble Supreme Court of India in "State of Himachal Pradesh Vs. Pawan Kumar" AIR 2005 SC 2265.
35. It is further submitted by the Ld. Counsel for the accused that Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 23 of 57 16:08:15 +0530 there has been complete non compliance of Section 52A of the NDPS Act. The IO prepared the specimen samples on the spot i.e. the hospital itself and the application u/s 52A was made after a gap of over 5 years. The proceedings were marked to Ld. JMFC, NI Act (Digital Court-01) and same were disposed off, for non prosecution. Therefore, there has been complete non compliance of the ratio of the decision of the Hon'ble Supreme Court of India in "Union of India Vs. Mohan Lal" (2016) 3 SCC 379 and "Yusuf @ Asif Vs. State", 2023 SCC OnLine SC 1328.
36. It is further submitted by the Ld. Counsel for the accused that there has been complete non compliance of the mandate of standing orders 1/88 and 1/89 in the present case. Therefore, adverse inference must be drawn against the evidence produced by the prosecution in the present case. The Ld. Counsel has placed reliance on the decision of Hon'ble Supreme Court of India in "Noor Agha Vs. State of Punjab" (2008) 16 SCC 417 and the decision of Hon'ble High Court of Delhi in "Kashif Vs. NCB" 2023 SCC OnLine Del 2881. Therefore the benefit of the doubts created upon the prosecution's evidence must go to the accused and he deserves to be acquitted in the present case.
Relevant Law and Case Laws:
37. In the background of the above, before discussing the evidence brought on record in the present case, it is pertinent to point out that the accused person can be convicted on the basis of credible evidence brought on record and the appreciation of the Digitally signed by ATUL ATUL AHLAWAT CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 24 of 57 AHLAWAT Date:
2025.09.22 16:08:24 +0530 said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr", Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
38. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary.
"Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Rajesh Yadav & Anr. Vs. State of U.P", Criminal Appeal No. 339-340 of 2014, date of decision 04.02.2022.
39. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 25 of 57 16:08:38 +0530 a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
40. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
41. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
42. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 26 of 57 16:08:45 +0530 exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
43. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
44. The word "Prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 27 of 57 16:08:53 +0530 matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
45. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domaine.
46. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras" , 1957 SCR 981 wherein it is held as under:
Digitally signed by ATUL ATUL AHLAWAT
AHLAWAT Date:
2025.09.22
16:09:02 +0530
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 28 of 57
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 29 of 57 16:09:09 +0530 unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 30 of 57 16:09:18 +0530 cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."Digitally signed by ATUL AHLAWAT
ATUL Appreciation of Evidence:
Date:
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47. Section 8 of NDPS Act,1985 completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under:
"No person shall
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-
State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of Ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of Ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative Digitally signed purposes." (emphasis supplied is mine). ATUL by ATUL AHLAWAT AHLAWAT Date:
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48. As per the aforementioned Section 8, possession of all narcotic drugs is prohibited. The term "narcotic drugs" is defined in Section 2(xiv) of the Act as under:
"(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;"
49. As per the definition, 'narcotic drugs' includes manufactured drugs. Therefore, drug containing diacetylmorphine, commonly known as heroin is included in the said definition and the possession of the same is prohibited by Section 8 of NDPS Act,1985.
50. 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:
"Section 2 (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;"
Section 2 (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."
51. The notification specifying small quantity & commercial quantity vide SO 1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per the said Digitally signed by ATUL AHLAWAT CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 33 of 57 ATUL Date:
AHLAWAT 2025.09.22 16:09:46 +0530 notification, the small quantity for heroin is "5 grams" and commercial quantity is "250 grams".
52. In order to prove the charges u/s. 21(b) of the NDPS Act, 1985, the prosecution is required to prove the following facts:
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was a "preparation" as defined u/s 2 (xx) of the Act. The said preparation contained diacetylmorphine/heroin, 6-
monoacetylmorphine, phenobarbital, alprazolam, acetaminophen and certain other substances.
(4) That the quantity of the contraband was more than the small quantity, however, less than the commercial quantity, for it to fall under Section 21(b) of the Act.
53. So as to bring home the charges u/s 23 (b) of the NDPS Act, the prosecution had to prove that the accused had imported into India any narcotic drug or psychotropic substance, in contravention of any provision of this act, without there being any licence, permit, certificate, authorization. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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54. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act,1985. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously. The failure to adhere to the procedure raises a doubt in the mind of the Court regarding the manner in which the investigation is carried out, which obviously favors the accused.
55. In "State of Punjab vs. Balbir Singh", (1994) 3 SCC 299, the Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 35 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:10:06 +0530 cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 36 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:10:16 +0530 place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance along with such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 37 of 57 by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:10:29 +0530 make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
56. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act, 1985 has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act, it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
57. It was held by the Hon'ble Apex Court in "Gaunter Edwin Kircher Vs The State of Goa" (1993) 3 SCC 145 that the provisions of the NDPS Act, 1985 are very stringent, hence, the extent of burden of proof that the prosecution has to meet is that it has to prove the foundational facts beyond reasonable doubt and the said burden is very onerous. More serious the offence, stricter the degree of proof.
Receipt of Secret Information and arrival of accused in India on 28.12.2019: Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:10:35 +0530 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 38 of 57
58. It has come in the testimony of PW-5 Intelligence Officer Chetan Sharma that he had received the secret information that Accused Abdul Hamid Turkman would be arriving in India on Ariana Airline Flight No. FG 313 on 28.12.2019 itself. As per the testimony of PW10 Amit Kumar Tiwari and the testimonies of PW6 IO Rajeev Sehrawat and PW4 JIO Jameel Saifi, the accused was apprehended from the arrival area of T-3 IGI international airport at about 07:00 pm. However, no independent witness was made to join the proceedings by the IO at the time of apprehension/detention of the accused. It had also categorically come in the cross examination of PW6 IO Rajiv Sehrawat that he was not accompanied by any translator at that time. It was also deposed by PW6 that the accused was well conversant with Hindi Language and he was able to understand Hindi.
59. The prosecution has sought to prove the arrival manifest of the flight FG-313 dated 28.12.2019 through a document, Ex.PW8/J, which was addressed to the complainant PW8 Deepak Attri by one Gulam Farooq Tarakhil, the Manager of Ariana Afghan Airlines Com. Ltd. The said document alongwith the passenger list was not accompanied by any certificate u/s 65B of the Indian Evidence Act. However, since the document was admitted vide the statement of the accused u/s 294 CrPC recorded on 03.12.2024, the prosecution therefore, established that the accused was on the said flight which entered India on 28.12.2019. However, merely by establishing that accused entered into India, does not establish that he was carrying the contraband, after swallowing the capsules containing the said contraband.
60. The case of the NCB is that the accused was taken from Digitally signed by ATUL ATUL AHLAWAT CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 39 of 57 AHLAWAT Date:
2025.09.22 16:10:42 +0530 the airport to the Safdarjung Hospital, after PW6 Rajeev Sehrawat informed the Superintendent PW10 Amit Kumar Tiwari that the accused had admitted that he had swallowed the contraband containing heroin, in the form of the capsules. The said statement of the accused was not recorded by the IO and no notice was given by him u/s 50 of the Act, prior to getting the X- ray of his abdomen done.
Admission of the accused at Safdarjung Hospital:
61. As per the case of NCB, Accused Abdul Hamid Turkman was admitted at Safdarjung Hospital on 28.12.2019 and he remained in the said hospital till he was discharged on 03.01.2020.
62. The NCB has filed the copy of MLC No. 1054972 allegedly prepared on 28.12.2019 at 01:32am. The said MLC was prepared by Dr. Lalit Jangir, JR, Department of Casulty, Safdarjung Hospital. The said document was never brought on record through the testimony of any prosecution witness. The IO had not recorded the statement of the said doctor and his name was not mentioned in the list of prosecution witnesses.
63. Careful perusal of the aforementioned MLC, clearly reflects that the accused was brought in the Safdarjung Hospital Casualty on 28.12.2019 at 01.32 am i.e. even prior to his arrival in India on 28.12.2019, since as per the NCB, the flight of the accused landed in India at about 06.35 pm on the said date. Furthermore, the secret information, Ex.PW5/A was recorded at 10.45 am on 28.12.2019. Therefore, the MLC in which accused Digitally signed by ATUL AHLAWAT ATUL Date:
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 40 of 57 AHLAWAT 2025.09.22 16:10:53 +0530 is shown to have been examined in the said hospital on 28.12.2019 at 01.32 am becomes highly suspicious. Furthermore, as per the said MLC, accused was admitted in the hospital by SI S. K. Panday. No such NCB official was authorized by the concerned Superintendent and as per the complaint no official by the said name had joined the proceedings/investigation of the present case at any point of time. Thereby, the said document being filed alongwith the complaint and yet the same not being brought on record, especially when the document has such details, which are not supporting the case of the NCB, has raised an inference that the said document was not brought on record, since it would not have supported the case of prosecution. The said circumstances have created reasonable doubts upon the veracity of the entire prosecution's case.
64. The prosecution has heavily relied upon the discharge summary, Ex.PW3/5. The said discharge summary was brought on record through the testimony of formal witness i.e. IO PW3 Thakur Singh. The perusal of the document reflects that it pertains the signatures of Dr. Renu Kumawat and Dr. Hemraj Meena, as the makers of the said document, however, the said discharge summary was never put to the said witnesses, who were examined before this Court as PW7 and PW9 respectively.
65. The suspicion around the case of the prosecution was further confounded by the testimonies of PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena, since both the said witnesses did not depose about any fact regarding the admission and the procedure conducted between 29.12.2019 to 03.01.2020.
Both the said witnesses had merely depose that they were Digitally signed by ATUL CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 41 of 57 AHLAWAT ATUL AHLAWAT Date:
2025.09.22 16:11:05 +0530 approached by the officials of NCB on 03.01.2020 and they were requested to become the independent witnesses of search and seizure qua the seizure of contraband ingested by the accused, who was already admitted in the hospital. Initially PW7 had not supported the case of the prosecution and she was declared hostile. During her cross examination, she had admitted the suggestions being put to her regarding the search and seizure proceedings, however, she never deposed about preparing the discharge summary, Ex.PW3/5.
66. Similarly, when PW9 Dr. Hemraj Meena stepped into the witness box, he had also not deposed anything which transpired prior to 03.01.2020. He also did not depose that the discharge summary was made under his supervision. Furthermore, he made no mention of the details of the accused expelling the capsules at different points of time on different dates through stool, as mentioned in the said document Ex.PW3/5. Therefore, the prosecution has miserably failed to prove the said discharge summary Ex.PW3/5. Furthermore, except for the said document, there is no other document brought on record alongwith the complaint, which shows that the accused had ingested any foreign body or that he had passed the stool containing the said foreign bodies.
67. The case of the prosecution was also relying upon one initial X-ray showing the foreign body in the abdomen of the accused. However, no such X-ray report or the X-ray film were filed before this Court. No such person from the radiology department was made a prosecution witness. Therefore, further Digitally signed by doubts upon the case of the prosecution are created.
ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:11:11 CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 42 of 57 +0530 Chain of custody and proceedings u/s 52A
68. As per the case of prosecution, after the accused was admitted at Safdarjung Hospital on 28.12.2019, he had expelled the contraband which were contained in the form of capsules, through stool on different dates. The said contraband was seized and recovered vide panchnama dated 03.01.2020, Ex.PW3/3. As per the discharge summary, Ex.PW3/5, the said capsules were expelled on 29.12.2019 and 30.12.2019 at different times. As per the testimony of IO PW3 Thakur Singh, he received the information from previous IO PW6 Rajeev Sehrawat that Accused Abdul Hamid Turkman had expelled all the capsules from his stomach and he would be discharged from the hospital on 03.01.2020 itself.
69. As per the testimony of PW3, IO Thakur Singh, he was directed by previous IO PW6 Rajeev Sehrawat to constitute a team and to take further necessary action as per the law.
However, when PW6 Rajeev Sehrawat entered into the witness box, he had deposed that on 03.01.2020, he got the information from Safdarjung Hospital that accused had expelled all the capsules and there were no more capsules left in the stomach and he would be discharged from the hospital on the same day, he produced the said information in writing before the PW10 Amit Kumar Tiwari vide Ex.PW3/1. Therefore, PW6 never deposed that he had directed PW3 to constitute any team and to take further necessary action as per law. Similarly, PW10 Amit Kumar Tiwari had deposed that upon the information Ex.PW3/1 being produced before him by PW6 Rajeev Sehrawat, he had marked the same to PW3 Thakur Singh. Therefore, the PW3 is Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 43 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:11:18 +0530 contradicting what PW6 and PW10 deposed before this Court, regarding the authorization for carrying the search and seizure proceedings.
70. PW3 IO Thakur Singh, PW6 IO Rajeev Sehrawat and PW10 Superintendent Amit Kumar Tiwari are all completely silent in their testimonies, as to what happened with the capsules which were allegedly expelled with the stool by the accused on 29.12.2019 and 30.12.2019. The said witnesses did not depose a single thing about any authorization of taking the said capsules in custody of NCB. There is no deposition to the effect that the said capsules were being put inside a locker by any official or as to who had affixed the paper seal outside the locker. The matter gets further suspicious, when PW10 Superintendent Amit Kumar Tiwari categorically deposes during cross examination that he had not issued any seal in respect of the present case before 03.01.2020. He had not issued any authorization regarding the custody of the expelled capsules and they being put in a locker and seal being affixed outside the locker.
71. The prosecution has examined only two doctors from Safdarjung Hospital namely PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena and both the said doctors did not depose that the expelled capsules were taken in custody by them or by any other hospital staff. They had also not deposed whether the NCB officials had taken the custody of the capsules, as and when they were expelled by the accused. They also did not depose as to how the samples reached the locker and who had put the paper seal outside the lock placed on the locker. They did not depose about who was carrying the key to the said locker, prior to the NCB Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 44 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:11:24 +0530 officials taking out the alleged capsules from the said locker.
72. Both PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena had deposed that on 03.01.2020, while they were present in ward no. 16 of the hospital, few persons approached them and identified themselves as NCB officials. The said officials requested PW7 and PW9 to become the independent witnesses to the proceedings qua the seizure of the contraband. Therefore, both PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena deposed about what transpired on 03.01.2020 and did not depose about anything prior to 03.01.2020. They both deposed that NCB team opened the locker which was duly sealed with a paper seal, after opening the same, they took out a polythene containing the capsules eased out by the accused during his stay/treatment at the hospital. However, they did not depose whether the said capsules were eased out by the accused in their presence and how did said capsules reach inside the locker. Therefore, the crucial link in the custody of the capsules containing the contraband has been gone missing. The benefit of the same must go to the accused.
73. As per the panchnama, Ex.PW3/3, the IO allegedly open the said 18 capsules after cutting them one by one. The said capsules were found containing 142 grams of "white powdery substance." The IO had prepared two samples of 5 grams each and had put them in two transparent ziplock pouches and given them mark A1 and A2. The remaining substance was kept in transparent polythene and was separately converted into a cloth pullanda given Mark A.
74. The panchnama Ex.PW3/3 does not mention whether the Digitally signed by CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 45 of 57 ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:11:32 +0530 IO took out the portion of the powdery substance from all of the 18 capsules one by one and thereafter prepared two samples of 5 grams each. It is not deposed by the IO PW3 Thakur Singh as to whether he had taken the powdery substance from each capsule or not. Similarly, the independent witnesses PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena also did not depose in the said regard.
75. Furthermore, the translator namely Ms. Puspa Kumari had given an undertaking on the panchnama Ex.PW3/3 that "Panchnama was read out to Abdul Hamid Turkman by me by translating it in Hindi". This Court can not wrap its head around the fact that why would an official translator/interpretor of Hindi/English to Pashto Language would translate the document prepared by the IO in English Language to the accused in Hindi language, when she ought to have explained the contents of the said documents in the vernacular which the accused understood and was most comfortable with, i.e. his mother tongue Pashto.
76. After the alleged seizure was made by the IO on 03.01.2020 and after the panchnama proceedings were completed about 02.00 pm on the said date, the IO had produced the samples before the Superintendent Amit Kumar Tiwari and they were deposited with the department malkhana at 02.50 hours on 03.01.2020, as mentioned in the register entry, Ex.PW3/10. As per the testimony of the Superintendent PW10 Amit Kumar Tiwari, on 04.01.2020 IO PW3 Thakur Singh had prepared the report regarding seizure, Ex.PW3/14 and the same was submitted before him. Thereafter on 06.01.2020, he had sent the samples Mark A1 to CRCL through PW2 Sepoy Atul Kumar Shahi. Prior Digitally signed by CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 46 of 57 ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:11:42 +0530 to sending the samples, no effort was made by the NCB officials to get the sampling process conducted before the Ld. MM u/s 52 A of NDPS Act. No application regarding certification of correctness of inventory and the sampling of the seized narcotic drugs was made.
77. What baffles to the mind of this Court is that the IO moved an application u/s 52A (2) of the NDPS Act 1982 for certification of correctness of inventory, photographs and samples of seized narcotic drugs on 07.01.2025, i.e. more than 5 years after the alleged seizure and recovery (emphasis supplied).
The said application was put up before Ld. CJM and same was marked to Ld. JMFC, NI Act Digital Court-01, PHC by the Ld. CJM for 08.01.2025. Thereafter the application was taken up by the Ld. JMFC on 08.01.2025, 10.01.2025, 16.01.2025, 31.01.2025 & lastly on 07.02.2025, wherein the application was dismissed for non prosecution, since for five dates neither the IO nor the Ld. SPP for NCB appeared before the Ld. JMFC. No samples were produced before the Ld. JMFC. Therefore, the mandate of Section 52 A and the relevant rules were given a complete go-by by the NCB. The serious questions have been raised against the seizure and recovery proceedings and the NCB has miserably failed to link the recovered contraband with the accused person. Therefore, the benefit of the said doubt must go to the accused.
Lapses in investigation:
78. The IO PW6 Rajeev Sehrawat did not make any independent witness to join the proceedings at the arrival hall of Digitally signed by ATUL CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 47 of 57 ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:12:18 +0530 the IGI Airport Terminal No. 3. The IO was not knowing as to whether the accused was comfortable or understood Hindi/English prior to reaching the airport. No efforts were made to take the official interpretor/translator alongwith him.
79. The accused was taken directly to the hospital from IGI Airport, upon the verbal statement of the accused admitting that he had swallowed the capsules containing heroin. The said statement of the accused was not recorded in writing, in the presence of any witness. The IO did not record his subjective satisfaction that the accused was having foreign bodies inside his stomach. No X-ray of the accused was got conducted at the airport. The accused was taken to the Safdarjung Hospital by one NCB official, namely SI S. K. Pandey, however, they said official was not named in the raiding party and no witness deposed before this Court that the accused was taken to Safdarjung hospital by the said official.
80. The MLC of the accused dated 28.12.2019 was prepared by one Dr. Lalit Jangir and yet the IO made no efforts to record the statement of the said doctor. The name of the said doctor was conspicuously missing from the list of prosecution witnesses.
The said MLC was never brought on record through the testimony of any prosecution witness, thereby raising a strong inference against the said document being contrary to the case of the prosecution.
81. The IO did not record any authorization or other order, whereby he was authorized by the superior officers to take charge of the capsules relieved by the accused, while the accused was Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 48 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:12:24 +0530 admitted at Safdarjung Hospital. There is no document to the effect that the relieved capsules were taken in custody by the IO or the hospital staff and how did they reach the locker. Furthermore, since no seal was issued till 03.01.2020, then how come there was the seal placed outside the locker. The said discrepancy is not explained by the IO or the complainant.
82. The accused was detained at the IGI airport on 28.12.2019 and he was not produced before this Court till 04.01.2020, rendering his detention, arrest and further custody illegal. The reliance is placed on the deicsion of Hon'ble High Court of Delhi in "Habiob Bedru Omer Vs. Customs", Neutral Citation:2025:DHC:4870 and decision of the Hon'ble Supreme Court of India in "ED Vs. Subhash Sharma" Neutral Citation:2025:INSC:141.
83. The IO moved an application u/s 52 A of the Act after unexplained delay of over 5 years and the said application was dismissed by the Ld. JMFC on 07.02.2025, for non prosecution. The non compliance of Section 52A has exposed the entire proceedings to be rendered highly suspicious, since the standing orders dated 1/88 & 1/89 were not followed. Reliance is placed on the decision of Hon'ble Supreme Court of India in Noor Agha (Supra), Yusuf @ Asif (Supra) and "Simranjit Singh Vs. State of Punjab", 2023 SCC OnLine 906.
84. The IO did not make any efforts to get the photography and the videography of the seizure proceedings, therefore, serious doubts are created on the entire seizure proceedings. Reliance is placed on the decision of the Hon'ble Supreme Court Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 49 of 57 by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:12:32 +0530 of India in "Shafhi Mohammad Vs. State of Himachal Pradesh" 2018 (1) SC Cr. R. 473.
85. The mandatory notice u/s 50 of the Act was never given, prior to the accused was about to be searched, since the search of a person includes the search of the human body. Reliance is placed on the decision of the Hon'ble Supreme Court of India in Pawan Kumar (Supra) and the decision of the Hon'ble High Court of Bombay in "Ahmad Adenwala Kola Vs. V. M. Dosi, Intelligence Officer and Anr," 2001 (2) MHLJ 515.
Conclusion and Findings:
86. There are material contradictions in the inter-se testimonies of PW3 IO Thakur Singh, PW6 IO Rajeev Sehrawat and PW10 Superintendent Amit Kumar Tiwari with respect to authorization given for conducting the search and seizure proceedings on 03.01.2020. The mandatory compliance of Section 42 of the act, is rendered suspicious. As per the information, Ex.PW3/1, PW6 IO Rajeev Sehrawat had recorded that the duty doctor in ward no. 16, H Block, Safdarjung Hospital had informed him that the accused had expelled all the capsules and there were no more capsules left in his stomach. The information does not mention the name of the concerned doctor who gave the said information. The NCB had not recorded the statement of the said doctor, under whose supervision the accused was admitted in the hospital and who gave the said information to PW6.
87. In the present case, there has been complete non Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 50 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:12:39 +0530 compliance of the mandatory Section 50 of the Act, since the IO never gave any notice under the said Section, prior to conducting the search and getting the X-ray of the accused conducted.
88. The IO had not joined any independent witness, at the time of conducting the proceedings at the arrival hall of T-3, IGI Airport, where the accused was first allegedly identified and detained. As per the testimony of IO PW6 Rajeev Sehrawat, prior to leaving the NCB office on the basis of secret information, he was not aware whether the accused was conversant with English or Hindi and he had not taken any translator for Pashto language, inspite of being fully aware that the accused was an Afghan national.
89. The accused was allegedly taken directly to Safdarjung Hospital, from the IGI Airport on 28.12.2019, on the basis of his alleged confession that he had swallowed the capsules containing heroin. The said statement was not recorded in writing. There was no interpretor from English to Pashto, so as to verify that the accused had heard and understood the queries being put to him. The accused was taken directly to Safdarjung Hospital, where he allegedly remained admitted till 03.01.2020. He was not produced after he was detained at the airport, within 24 hours before this Court or before the Ld. Duty MM, therefore, there has been non compliance of article 22 (2) of the Constitution of India and Section 52 (2) of NDPS Act. His detention and consequent arrest and remand were all illegal.
90. The MLC of the accused dated 28.12.2019 was not brought on record, inspite of the same being filed alongwith the Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 51 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:12:48 +0530 complaint. The concerned doctor who had prepared the said MLC was not made a prosecution witness. Therefore, the prosecution could not establish the most essential link of its case that the accused was brought to Safdarjung Hospital with alleged history of "ingestion of drugs". The prosecution could not establish that the accused was kept in the hospital, after he was referred to ward situated at 6th floor, as mentioned in the said MLC.
91. The MLC dated 28.12.2019, was prepared at 01:32 am, i.e. even prior to the accused entering India by flight no. FG 313, which landed on 28.12.2019 at 06:15 pm, as per the case of NCB.
92. The discharge summary, Ex.PW3/5 was merely brought on record through the testimony of the formal witness, i.e. PW3 IO Thakur Singh. The said document was not proved in accordance with the law, since the maker of the said document namely Dr. Renu Kumawat and Dr. Hemraj Meena, were examined as PW7 and PW9, respectively and yet the said discharge summary was not put to the said witnesses. Furthermore, both PW7 and PW9 did not identify their signatures on the said documents.
93. The contraband contained in the capsules were allegedly expelled through stool on 29.12.2019 and 30.12.2019 at different times, however, the prosecution could not offer any explanation as to in whose custody and control were the said capsules between 29.12.2019 to 03.01.2020. There is no document to show that the custody of the capsules were taken by any doctor Digitally signed by ATUL CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 52 of 57 AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:12:55 +0530 or official from the hospital, as and when allegedly expelled from the body of the accused. Furthermore, there is no document or testimony of any NCB official examined before this Court, regarding the custody of the capsules in the said period. Therefore, the chain of the custody of the contraband is broken.
94. The IO PW3 Thakur Singh and himself mixed the contents of the 18 capsules after transferring the same in the transparent polythene, prior to the same being weighed. The IO then prepared two samples of 5 grams each and prepared the remnant pullanda with the contents of the capsules. The IO had not got conducted the said proceedings before the Ld. MM u/s 52A of the Act.
95. As per the panchnama, the translator Ms. Puspa Kumari had mentioned that the panchnama was read out to the accused by her in Hindi. However, the seizing IO PW3 Thakur Singh had recorded in the same panchnama that the translator had read over the panchnama to the accused in his language. Ms. Puspa Kumari was an official translator of Pashto language i.e. the mother tongue of the accused and yet she chose to read over the panchnama to the accused in Hindi, has further raised strong suspicion regarding the veracity of the entire seizure proceedings.
96. The prosecution has not placed on record any X-ray showing the presence of foreign bodies in the stomach of the accused, which was the genesis of their entire case. There is no X-ray report or film, filed alongwith the complaint. No witness from the radiology department of Safdarjung Hospital was examined by the NCB. Therefore, yet another crucial link of their Digitally signed CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 53 of 57 by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.09.22 16:13:05 +0530 case has gone missing.
97. The NCB was relying on the testimony of two independent witnesses of seizure, namely PW7 Dr. Renu Kumawat and PW9 Dr. Hemraj Meena. In addition to the discharge summary, Ex.PW3/5 being not shown and put to the said witnesses at the time of recording of the testimonies, both the said witnesses did not depose any thing about what transpired at Safdarjung Hospital between 28.12.2019 and 03.01.2020 i.e. date of panchnama proceedings. They had not deposed anything about the X-ray being conducted or any procedure, while the accused was admitted in their hospital or when did the alleged capsules were expelled by the accused out of his stool.
98. The Superintendent PW10 Amit Kumar Tiwari had categorically deposed that he had not issued the NCB seal to any officer with respect to the present case, prior to 03.01.2020. Therefore, how come the locker in which the capsules were allegedly kept in Safdarjung Hospital came to be sealed with a paper seal, is not explained by the prosecution.
99. There has been complete non compliance of Section 52A of the Act. The alleged seizure took place on 03.01.2020, vide the panchnama Ex.PW3/3, yet for reasons best known to NCB, they waited for over 5 years, before filing an application u/s 52A (2) of the NDPS Act before this Court on 07.01.2025. The said application was moved for certification of correctness of inventory, photographs and for sampling of the seized narcotic drugs. There is no inventory of the seized narcotic drugs filed alongwith the complaint. There are no photographs of the seized Digitally signed by ATUL CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 54 of 57 ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:13:10 +0530 contraband. The samples prepared by the IO were already sent to CRCL for forensic examination on 06.01.2020 and the report was prepared and received by the Superintendent on 21.02.2020 itself. Therefore, what was the purpose of moving the said application after a delay of 5 years is not explained. Furthermore, the IO and the Ld. SPP for NCB never appeared before the Ld. JMFC for 5 dates, which led to its dismissal for non prosecution on 07.02.2025.
100. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra"
AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P." (1996) 10 SCC 193.
101. The statutory presumption as enshrined u/s 35 and 54 of the Act required the prosecution to prove the foundational facts of conscious possession, prior to the presumption being kicked in, which the prosecution has miserably failed to do so in the present case.
102. Suspicion, however, strong can never take place of proof.
Digitally signed by ATUL CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 55 of 57 AHLAWAT ATUL Date: AHLAWAT 2025.09.22 16:13:17 +0530
There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam"
(2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
103. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favorable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in "Kali Ram Vs. State of Himanchal Pradesh" AIR 1973 SC 2773.
104. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, this Court is of the view that the evidence brought on record is not worthy of acceptance and there is a shadow of doubt cast upon it. The testimonies of the prosecution witnesses are not of sterling character and the lapses on part of the IO in conducting faulty investigation and non compliance of Section 50, 52A of the Act and the lapses on the part of the prosecution in not proving the necessary links of their case, has led to only one irresistible conclusion that the prosecution story is not worthy of inspiring any confidence. Hence, it strikes at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, Digitally signed by CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 56 of 57 ATUL ATUL AHLAWAT AHLAWAT Date:
2025.09.22 16:13:24 +0530 there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Abdul Hamid Turkman S/o Sh. Shait Murad is acquitted of the charges for committing the offences punishable u/s 21 (b) & 23 (b) of NDPS Act, 1985. Hence, he shall be set at liberty.
105. The case property be disposed off in accordance with the law and the rules prescribed.
106. The accused Abdul Hamid Turkman is directed to furnish his bail bonds u/s 437-A Cr.P.C, 1973 within one week from today. All the previous bail bonds/surety bonds except for bail bonds u/s 437-A Cr.P.C 1973. are hereby canceled and the surety(s) stands discharged. The documents furnished by the surety(s) shall be released to them as per rules. The bail bonds u/s 437-A Cr.P.C, 1973 shall remain in force for a period of six months from today.
107. File be consigned to the record room, after due compliance.
Announced in the open court on 22.09.2025. This judgment consists of 58 pages and all of them have been digitally signed by me.
Digitally signed by ATUL ATUL AHLAWAT
AHLAWAT Date: 2025.09.22
16:13:33 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/22.09.2025
CNR No DLND010020832020 NCB Vs. Abdul Hamid Turkman SC No. 85/2020 page no. 57 of 57