Delhi District Court
State vs Kamlesh@Raju on 18 January, 2025
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 374/2019)
CNR No. DLNT01-005601-2019
FIR No. 215/2019
Police Station Narela Industrial Area
Charge sheet filed 21/61/85 NDPS Act
Under Section
Charge framed Under 21 NDPS Act
Section
Kamlesh @ Raju @ Babu s/o Sh.
State Vs. Ravinder Prashad r/o H. No. F-220, JJ
Colony, Bawana, New Delhi
Date of institution 17.06.2019
Arguments concluded on 20.12.2024
Judgment Pronounced on 18.01.2025
Decision Convicted
JUDGMENT
BRIEF FACTS 1.1 The accused Kamlesh @ Raju has been sent to face trial for committing an offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
1.2. The facts of the case in brief as per the charge sheet filed by the prosecution are that the FIR in question was registered on 21.04.2019. Ct. Vinod and Ct. Vinaypal were on patrolling duty. When they reached near A-
Digitally signed SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 1 of 22 by DHIRENDRA DHIRENDRA RANA PS Narela Industrial Area RANA Date: 2025.01.18 16:59:38 +0530
Block Bus stand JJ colony, they noticed one person was coming from graveyard side. On seeing the police official that person all of a sudden started going back with brisk pace and on suspicion Ct. Vinaypal overpowered him. He revealed his name as Kamlesh @ Raju @ Baba. His cursory search was done and a polythene bag was recovered from right side pocket of his pants which was found containing substance looking like smack. Information about apprehension of accused and recovery of contraband was sent to SHO through duty officer. On receipt of DD No. 41A, IO ASI Ompal alongwith Ct. Vishudev reached at the spot i.e., A Block, JJ Colony Bus Stand where they met Ct. Vinod and Ct. Vinaypal and produced accused Kamlesh @ Raju @ Baba and contraband i.e., smack recovered from the possession of accused. IO recorded the statement of Ct. Vinod.
1.3 IO also informed ACP Girish Kaushik, who reached at the spot. In presence of ACP, IO explained the accused about his legal rights and served notice under section 50 NDPS Act upon him. IO checked the contraband and it was found smack of about 18.91 grams in weight. IO seized the contraband and separated two samples of 5 grams each and place them in two separate plastic boxes and given mark as S1 and S2 to the sample. The remaining contraband alongwith polythene was kept in another plastic box and given mark A1. All the boxes were sealed with the seal of OP. IO also filled FSL form and affixed his seal on the same. The case property was seized and seal after use was handed over Ct. Vinod Kumar. The rukka was prepared and it was handed over to Ct. Vishwadev for registration of FIR. He also took the case property and FSL form alongwith copy of seizure memo and handed it over to SHO Inspector Arvind. Duty Officer ASI Surya Pratap Singh registered the FIR. Inspector Arvind affixed his seal and signature on all three parcels and SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 2 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 16:59:47 +0530 mentioned the FIR number on the same. He deposited the case properties in the malkhana by making relevant entries in register No. 19. After registration of FIR, Ct. Vishwadev came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO. IO prepared the site plan at the instance of Ct. Vinod. He conducted personal search of the accused after arresting him and recovered Rs. 500/-, one mobile phone make Samsung Duos Black and notice under section 50 NDPS Act. He also recorded disclosure statement of the accused and forwarded a report under section 57 NDPS Act to the SHO. The samples were sent to FSL through Ct. Sanjay. As per FSL report, Exhibit S1 was found containing 'Codeine, 'Acetylcodeine', '6-Monoacetylmorphine' & 'Trimethoprim'. After completion of investigation, charge sheet was filed.
CHARGE
2. On the basis of material available on record, vide order dated 03.10.2019 charge u/s 21(b) NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 8 witnesses in all.
4. PW1 HC Jaswant being the MHC(M) exhibited entry at serial No. 287/19 in register No. 19 as Ex. PW1/A vide which three sealed parcels were deposited in malkhana by ASI Ompal on 21.04.2019. He also exhibited RC No. 138/21/19 as Ex. PW1/B vide which one sealed parcel marked as S1 alongwith relevant documents was sent to FSL through Ct. Sanjay and acknowledgment received from FSL as Ex. PW1/C. SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 3 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 16:59:54 +0530 5.1 PW2 HC Vinod Kumar deposed on the lines of his complaint and case of the prosecution. He exhibited notice as Ex. PW2/A, seizure memo as Ex. PW2/B, arrest memo as Ex. PW2/C, personal search memo as Ex. PW2/D, disclosure statement as Ex. PW2/E was recorded and case property Mark A1 as Ex. P1, sample S2 as Ex. P2, sample S3 as Ex. P3 and notice under section 50 NDPS Act as Ex. PW2/F. 5.2 During cross examination done on behalf of accused, he stated that Delhi Mother Dairy Booth was at a distance of around 100 meter from the spot. He stated that there were no residential houses near the place of incident, however, the same was at distance of around 200-300 meter from the spot. He stated that he handed over the recovered contraband to the IO ASI Ompal Singh. He stated that notice under section 50 NDPS Act was served upon the accused after arrival of ACP. He denied that signatures of accused were obtained on blank papers and later on same were converted into incriminating documents.
6.1 PW3 HC Vishadev deposed that he reached at the spot alongwith IO ASI Ompal and deposed about his role during proceedings which has already been noted above and not repeated herein for the sake of brevity. 6.2 During cross examination done on behalf of accused, he stated that Mother Dairy Booth is located at A-Block Bus Stand, JJ Colony, Bawana. He stated that there was only one shop of tobacco and cigarette near A Block Bus Stand JJ Colony, Bawana. He admitted that IO did not obtain his signature on any of the seizure memo or any notice under section 50 NDPS act. He denied all the suggestions put on behalf of accused.
7. PW4 ASI Surya Pratap Singh, being the duty officer, he exhibited SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 4 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date:
2025.01.18 16:59:59 +0530 FIR as Ex. PW4/A, endorsement on rukka as Ex. PW4/B and certificate under section 65-B of Indian Evidence Act as Ex. PW4/C.
8. PW5 HC Wazir, being the DD writer, exhibited DD No. 23B in respect of evening patrolling duty of police officials posted at Beat No. 8, Beat No. 2, Beat No. 3, 4 and 5, Beat No. 6, Beat No. 7 as Ex. PW5/A. 9.1 PW6 ASI Ompal, being the Ist IO, deposed about the investigation being carried out by him and on the lines of PW2 HC Vinod and PW3 HC Vishwadev and fully supported the case of the prosecution. 9.2 He exhibited statement of Ct. Vinod as Ex. PW6/B, site plan as Ex.PW6/C, copy of report under section 57 NDPS Act regarding recovery of contraband and arrest of accused to SHO as Ex. PW6/D and personal search articles of accused i.e., one keypad black colour Samsung Duos mobile and cash of Rs. 500/- as Ex. P4 (colly).
9.3 During cross examination done on behalf of accused, he admitted that accused was not able to read notice under section 50 NDPS Act. He denied that there was a mother dairy near the place of incident. He stated that there was a kiosk but same was closed on that day. He denied all the suggestions put on behalf of accused.
10.1 PW7 Inspector Arvind Kumar deposed that on 21.04.2019, he received an information about the apprehension of accused with contraband and a request to send IO. He further deposed that he conveyed to duty officer to send ASI Ompal for investigation and the information was recorded vide DD No.41A which is Ex. PW7/A. 10.2 He further deposed that at around 03:00 AM, Ct. Vishwadev SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 5 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 17:00:06 +0530 produced three sealed parcels with seal of 'OP' before him alongwith carbon copy of seizure memo and FSL form. He affixed his signature and seal on all the three parcels and also mentioned the FIR after enquiring the same from the duty officer. He further deposed that compliance under section 55 NDPS Act was recorded vide DD No. 11A dated 22.04.2019 which is Ex. PW7/B. He further deposed that MHC(M) (CP) was called by him in his office and deposited all the parcels and counter signed register No. 19. 10.3 He further deposed that on 22.04.2019, he forwarded report under section 57 NDPS Act regarding apprehension of accused and recovery of contraband to concerned ACP.
11. PW8 Ct. Sanjay, deposited sealed parcel in FSL vide RC No. 135/21/19 and handed over the receipt of the same to MHC(M).
12. No witness has been examined by the State with regard to exhibition of FSL result, however, FSL result is admissible under section 293 CrPC and no application has been moved on behalf of accused to call this witness for the purpose of cross examination.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
13. After closure of PE, statements of accused was recorded u/s 313 Cr.P.C. on 22.10.2024, wherein he denied all the incriminating evidences put to him. He stated that he has been falsely implicated in this case and nothing incriminating substance was recovered from his possession and case property was falsely planted upon him.
He opted not to lead defence evidence.
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 6 of 22
PS Narela Industrial Area
Digitally signed
by DHIRENDRA
DHIRENDRA RANA
RANA Date:
2025.01.18
17:00:11 +0530
14. Thereafter, matter was fixed for final arguments.
15. I have heard Dr. Raj Rani, Ld. Addl. PP for State and Sh. S. P. Sharma, Ld. counsel for accused.
ARGUMENTS ON BEHALF OF STATE
16. The Ld. Addl PP for the State argued that accused was found in possession of 18.91 grams smack and he was apprehended by PW2 HC Vinod alongwith Ct. Vinaypal. All these witnesses have deposed without any confusion about the manner in which recovery was affected from the accused and proceedings were carried out by PW6 ASI Ompal. Prosecution has proved the fact that all the necessary compliance have been done by PW6 ASI Ompal. IO sent the information to the SHO by sending the case property alongwith FSL form through Ct. Vishwadev. SHO affixed his seal and signature on the samples in compliance of section 55 NDPS Act. After arrest of accused, IO also sent an information as per section 57 NDPS Act. Prosecution has proved all these documents during trial. Moreover, accused has failed to rebut the presumption against him enshrined under section 35 NDPS Act.
ARGUMENTS ON BEHALF OF ACCUSED 17.1 On the other hand, Ld. Counsel for accused has forcefully argued that accused deserves to be acquitted in the instant matter. It is argued that not only the notice under Section 50 of the NDPS Act is required to be served upon the accused before making his search but it is also obligatory on the part of the IO to inform the accused of his rights under Section 50 of the NDPS Act. It is admitted by the IO that accused was not able to read Hindi and moreover, notice was served upon the accused after alleged recovery of SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 7 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 17:00:19 +0530 contraband. It is submitted that although the prosecution witnesses have claimed that the accused was intimated of his rights but oral intimation is not sufficient compliance of Section 50 of NDPS Act. It is further submitted that IO has also not made any prior preparation to ensure the presence of any Gazetted officer or Magistrate at the spot before conducting the search of the accused.
17.2 It is further submitted that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is submitted that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52 A, in the presence of Magistrate only, whereas admittedly the samples were drawn at the spot itself and not in the presence of any Magistrate. It was also argued that no public witness was joined by the IO despite their availability. Last but not the least argument put forth is that the alleged recovered substance was not tested in any field testing kit then how come Ct. Vinod and Ct. Vinaypal came to the conclusion that it was smack. The testimonies of the police official are suffering from various contradictions which are sufficient enough to dismantle the case of the prosecution. Hence, it is prayed that accused may be acquitted by giving benefit of doubt of the case.
REASONS FOR THE DECISION
18. Section 21 of NDPS Act is reproduced below for ready reference:-
"21. Punishment for contravention in relation to manufactured drugs and preparations-Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both;
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 8 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 17:00:25 +0530
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c)where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
Perusal of Section 21 (b) of NDPS Act would reveal that 'possession' of intermediate quantity of smack ('Codeine, 'Acetylcodeine', '6- Monoacetylmorphine' & 'Trimethoprim') is punishable under Section 21(b) of said Act.
APPRECIATION OF EVIDENCE:
19.1 Hon'ble Apex Court has time and again reaffirmed as to how courts need to appreciate the evidence adduced by the parties. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21' , the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and reject the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897' , wherein the Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 9 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 17:00:30 +0530 is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth.
19.2 In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", it was held that no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole, appears to have ring of truth or not. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief. 19.3 The Hon'ble Apex court reiterated the manner of appreciation of evidence in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, the conviction can be maintained. It is the duty of the court to separate the grain from chaff. Hon'ble Apex Court in State of UP Vs. M.K. Anthony 1985 (1) SCC 505 held that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 10 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 17:00:35 +0530 particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Further, Hon'ble Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
19.4 As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 11 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 17:00:40 +0530 descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious ( Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial ( Paramjit Singh Vs. State of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
19.5 Evidently, the binding judicial pronouncements casts a duty upon the Trial Court to cull out the nuggets of truth from the evidence available on record. To sum up, while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
19.6 Having noted the general principles of appreciation of evidence, let us now examine the material available on record to seek an answer to determine the issue of guilt of accused.
COMPLIANCE OF SECTION 50 NDPS ACT 20.1 Ld. Defence Counsel has forcefully argued that the notice was served upon the accused after the allegedly recovery of contraband whereas it ought to have been served prior to the recovery. While serving the notice after SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 12 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 17:00:45 +0530 recovery of contraband, IO had committed a serious error and it is under suspicion whether notice was duly served upon the accused or not. Compliance of section 50 NDPS Act is mandatory in nature and in case IO fails to comply the same, benefit of the same must go to the accused. 20.2 In my considered opinion, the law merely requires the accused to be informed of his right under Section 50 NDPS Act but the information may not be necessarily in writing. I am fortified in my opinion by the observations of the Hon'ble Apex Court in the matter of Vijaysinh Chanduba Jadeja Vs State of Gujarat: Crl Appeal No. 943 of 2005 with Crl Appeal No. 974 of 2003 and Crl Appeal No.1809 of 2009 date of judgment 29.10.2010 wherein it has been observed herein as under:-
"17. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh's Case(Supra). We are concerned with the following conclusions: "57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-Section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing." (Emphasis supplied).
20.3 In the present case, accused was apprehended by PW2 HC Vinod Kumar and Ct. Vinaypal on the basis of suspicion when these police officials were on duty. There was no secret information with these officials that accused is involved in transportation of contraband. Due to his suspicious conduct, accused was arrested and recovery was effected from his possession. Therefore, it is a case of chance recovery and prior to recovery of contraband, police officials had no knowledge that accused was carrying any contraband and hence, section 50 was not in contemplation by that time. 20.4 Subsequently, IO PW6 ASI Ompal informed the accused about his SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 13 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 17:00:50 +0530 legal rights that his further search was to be conducted and prior to that search, he had the option to get himself searched in presence of Gazetted officer or a Magistrate. Notice under section 50 was prepared and was duly served upon the accused which is Ex. PW2/F. Accused opted not to get himself searched before a Gazetted Officer and gave his refusal on the notice itself. Thereafter, personal search of the accused was conducted by the IO but no further contraband was recovered. Therefore, in the present case significant compliance has been done by the IO by serving notice under section 50 NDPS Act that too in writing. Moreover, notice was served upon the accused in the presence of ACP Girish Kaushik and his personal search was also conducted in his presence. The carbon copy of the notice which is Ex. PW2/A on which accused had received the notice is duly signed by ACP Girish Kaushik. I do not find any merit I the argument of Ld. Counsel that any illegality was committed by PW2 HC Vinod Kumar and Ct. Vinaypal by not serving the notice under section 50 NDPS Act upon the accused prior to the recovery.
NON-COMPLIANCE OF SECTION 52A OF NDPS ACT:-
21.1 It is submitted by Ld. Defence Counsel that accused deserves to be acquitted for non-compliance of Section 52A of the NDPS Act. It is contended that it was mandatory for the investigating officer to have drawn samples, in accordance with Section 52A, in the presence of Magistrate, whereas admittedly the samples were drawn at the spot itself and not in the presence of any Magistrate. It is submitted that samples in fact were drawn in stark violation of standing order no.1/89 dated 13.06.1989, issued under Section 52A of the NDPS Act by Department of Revenue.
21.2 The issue raised qua non compliance of section 52A by the IO, has been discussed time and again by Hon'ble Supreme Court in case titled as SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 14 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 17:01:00 +0530 Simranjeet Singh v. State of Punjab, Criminal appeal No. 1443 of 2023,decided on 09.05.2023. In this case, samples were drawn by the IO at the spot and not before the magistrate and benefit of the same was given to the accused but there is a development in this regard. While hearing an appeal titled as Narcotics Control Bureau Vs. Kashif, Criminal Appeal No. 544 of 2024 decided on 20.12.2024, Hon'ble Apex Court held as under:
24. Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, however delayed compliance or non-
compliance of the said provision by the concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act.
xxxxx
31. From the above decisions, the position that emerges is that this Court in catena of decisions, has approved the procedure of spot searches and seizures in compliance with the Standing Orders and the Notifications issued by the NCB and the Central Government, and upheld the convictions on being satisfied about the search and seizure made by the officers as per the provisions of the Act and being satisfied about the scientific evidence of F.S.L. reports etc. Even otherwise, in view of the law laid down by the Constitution Benches in case of Pooran Mal and in case of Baldev Singh, any procedural illegality in conducting the search and seizure by itself, would not make the entire evidence collected thereby inadmissible. The Court would have to decide the admissibility of evidence in the context and the manner in which the evidence was collected and was sought to be used during the course of trial. The evidence collected during the course of investigation in legal and proper manner and sought to be used in the course of trial with regard to the seized contraband substance could not be simply brushed aside, on the ground of procedural irregularity if any, committed by the concerned officer authorised in making application to the Magistrate as contemplated under Section 52A of the Act.
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 15 of 22
PS Narela Industrial Area
Digitally signed
DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.01.18
17:01:08 +0530
32. Significantly, the Authorised Officer can make the application under sub- section (2) of Section 52A for three purposes - (a) for certifying the correctness of the inventory prepared by him; or (b) taking in presence of such magistrate, photographs of the seized drugs, substances and conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate, and certifying the correctness of any list of samples so drawn. The use of the conjunction "OR" made in between the three purposes mentioned therein, itself makes it explicitly clear that the purposes for which the application could be made under sub-section (2) are alternative and not cumulative in nature. Such provision specifying multiple alternative purposes could not be construed as a mandatory provision muchless its non-compliance fatal to the case of prosecution.
xxxxx
35. None of the provisions in the Act prohibits sample to be taken on the spot at the time of seizure, much less Section 52A of the said Act. On the contrary, as per the procedure laid down in the Standing Orders and Notifications issued by the NCB and the Central Government before and after the insertion of Section 52A till the Rules of 2022 were framed, the concerned officer was required to take samples of the seized contraband substances on the spot of recovery in duplicate in presence of the Panch witnesses and the person in whose possession the drug or substance recovered, by drawing a Panchnama. It was only with regard to the remnant substance, the procedure for disposal of the said substance was required to be followed as prescribed in Section 52A."
21.3 Therefore, it has been categorically held by Hon'ble Supreme Court that drawing of samples by the IO at the spot may be an irregularity and not an illegality. The accused cannot be given benefit merely on the fact that samples were drawn by the IO at the spot. The court has to see the other circumstances as well. While deliberating over section 52A Hon'ble Apex court also dealt with its earlier judgments. The court further held as under:
36. At this stage, we must deal with the recent judgments in case of Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in case of Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and in case of Mohammed Khalid and Another vs. State of Telangana ((2024) 5 SCC
393) in which the convictions have been set aside by this Court on finding non-compliance of Section 52A and relying upon the observations made in case of Mohanlal. Apart from the fact that the said cases have been SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 16 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date:
2025.01.18 17:01:13 +0530 decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act. Therefore, we have considered the legislative history of Section 52A and other Statutory Standing Orders as also the judicial pronouncements, which clearly lead to an inevitable conclusion that delayed compliance or non- compliance of Section 52A neither vitiates the trial affecting conviction nor can be a sole ground to seek bail. In our opinion, the decisions of Constitution Benches in case of Pooran Mal and Baldev Singh must take precedence over any observations made in the judgments made by the benches of lesser strength, which are made without considering the scheme, purport and object of the Act and also without considering the binding precedents.
xxxxx
39. The upshot of the above discussion may be summarized as under:
(i) ....
(ii) .....
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail.
The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."
21.4 It is not the mandate of law that the samples can only be drawn in the presence of a Magistrate and not otherwise. Further, in the case at hand, I am of the considered opinion that once the prosecution has conclusively SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 17 of 22 PS Narela Industrial Area Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date:
2025.01.18 17:01:19 +0530 established that the processual sanctity of seizing the contraband and its safe transit to the FSL has not been compromised then under such circumstances peripheral issues viz keeping the samples in small plastic boxes would not go to the root of the matter and the contention is found to be meritless. Thus, I cannot but disagree with the Ld. Counsel for the accused that the recovery in the instant matter has been effected in violation of Section 52A of NDPS Act or standing order no.1/89.
21.5 Since, in Kashif's case (discussed supra), Hon'ble Apex Court has dealt with Simarjeet's case (discussed supra) and thereafter, held that drawing of samples at the spot by the IO is not itself an illegality. The court has to see the other evidence as well. Delayed or non compliance of section 52A NDPS Act cannot be treated as fatal to the case of the prosecution. Therefore, in view of recent view of Hon'ble Supreme Court in Kashif's case (discussed supra), the arguments of Ld. Defence counsel qua non compliance of section 52 A NDPS Act holds no water and accordingly stands rejected.
NATURE OF RECOVERED SUBSTANCE:-
22.1 It is argued on behalf of accused that how come PW2 HC Vinod Kumar and Ct. Vinaypal came to know that alleged substance recovered from the possession of accused was smack as they never tested the same in the field testing kit. By raising this issue, Ld. Counsel is pointing towards scope of tampering and manipulation with case property.
22.2 PW1 HC Jaswant has testified that on 21.04.2019, three sealed parcels with the seal of 'OP' were deposited in malkhana byPW6 ASI Ompal and entry at serial No. 287 in register No. 19 was made. On 17.05.2019, he had handed over sealed parcel marked as Mark S1 along with relevant documents to PW8 Ct. Sanjay for depositing the same with FSL Rohini. PW8 Ct. Sanjay SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 18 of 22 PS Narela Industrial Area Digitally signed DHIRENDRA by DHIRENDRA RANA RANA Date: 2025.01.18 17:01:24 +0530 has testified that he deposited the same in FSL, Rohini vide RC No. 135/21/19 which is Ex. PW1/B and he also handed over the copy of acknowledgment to the MHC(M) which is Ex. PW1/C. PW8 Ct. Sanjay categorically testified that the case property remained in his possession while the seals were intact and the same were not tempered with.
22.3 The report of Dr. Kavita Goel, Assistant Director (Chemistry) FSL Rohini dated 23.08.2019 clinches the issue. It is categorically mentioned in the report that on 17.05.2019, Dr. Kavita Goel received parcel S1 sealed with the seal of 'OP' and 'AK'. It is further mentioned in the report that upon the examination of sample, it was found to be containing 'Codeine, 'Acetylcodeine', '6-Monoacetylmorphine' & 'Trimethoprim'. She sealed the remnant with her seal of KGFSL DELHI and sent back the same to the police station. Mark S1 (sample examined by the expert) was produced before the court in sealed condition during the testimony of PW2. Therefore, right from the seizure and till the case property was produced before the court, all seals used by the police official and FSL expert were found to be intact. Mark A1 has been exhibited as Ex. P1, Mark S2 has been exhibited as Ex. P2 and Mark S1 has been exhibited as Ex. P3.
22.4 The argument qua non use of field testing kit could have been relevant, if there was any chance of tampering with the case property or seal. The fact of the matter is whether substance recovered from the possession of accused was contraband or not, stands proved by the report of FSL expert. Although, report has not been proved by the prosecution by examining the chemical expert but this report is admissible in evidence by virtue of section 293 CrPC. Moreover, this is not a defence of the accused that report of Dr. Kavita Goel is false and fabricated and no application is moved to call the witness for the purpose of cross examination.
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 19 of 22
PS Narela Industrial Area
Digitally signed
DHIRENDRA by DHIRENDRA
RANA
RANA Date: 2025.01.18
17:01:29 +0530
22.5 Ld. Defence Counsel has failed to point out any material
inconsistency in the testimony of prosecution witnesses or any processual infirmity in the process of sealing, seizure or deposit of the contraband in the FSL laboratory. Therefore, non use of field testing kit at the spot is not more than an irregularity which does not go to the roots of the case.
RECOVERY OF CONTRABAND ARTICLE:-
23.1 The case of the prosecution hangs upon the testimony of star witnesses PW2 HC Vinod Kumar, PW3 Ct. Vishwadev and PW6 ASI Ompal.
PW2 HC Vinod Kumar was accompanied by Ct. Vinaypal but he has been dropped by the prosecution as his testimony was repetitive in nature. PW2 HC Vinod Kumar has fully supported the case of the prosecution to prove the fact that accused Kamlesh was found in possession of smack which was weighed and found to be 18.91 grams. The testimony of PW2 HC Vinod Kumar is further corroborated by the testimony of PW3 Ct. Vishwadev and PW6 ASI Ompal and they have categorically testified that on the fateful day, accused was apprehended with a polythene containing smack. Star witnesses of the prosecution are cogent, consistent and credit worthy. The defence has failed to shake the credibility of the star witnesses despite a grueling cross examination of the witnesses.
23.2 The defence has also failed to point out any infirmity or any major inconsistency in the version of the prosecution witnesses so as to cast any reasonable shadow of doubt upon the prosecution version.
MINOR INCONSISTENCIES, INFIRMITIES, DISCREPANCIES IN THE PROSECUTION CASE:-
24.1 It is further pointed out that there is no seal handing over/ taking
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 20 of 22
PS Narela Industrial Area
Digitally signed
by DHIRENDRA
DHIRENDRA RANA
RANA Date: 2025.01.18
17:01:34 +0530
over memo proved on record.
24.2 Admittedly, it was desirable for the prosecution to prove on record
the seal handing over/taking over memo. However, once it is established on record that the purity of the process has not been compromised then the defence cannot claim to have earn some brownie points on account of the lapses of the investigating officer. Reliance is placed upon C. Muniappan & Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567 and Sardul Singh Vs. State of Haryana in (2002) 8 SCC 372.
CONCLUSION 25.1 The testimony of PW2 HC Vinod, PW3 Ct. Vishwadev and PW6 ASI Ompal coupled with the unimpeached FSL Result conclusively establishes on record that on 21.04.2019, accused was found in possession of intermediate quantity of smack. Necessary compliance under section 50 NDPS Act was done by PW6 ASI Ompal by serving a notice upon the accused. After seizure of case property, samples were extracted at the spot and were sent to PW7 Inspector Arvind Kumar. PW7 Inspector Arvind Kumar sealed the three pullandas of the case property in compliance of section 55 NDPS Act. After registration of FIR, accused was arrested and PW6 ASI Ompal sent a report to the SHO in compliance of section 57 NDPS Act. The samples as well as the remaining case property have been duly proved during the trial. The chain of sequence of events is complete and there is no visible defect in the investigation pointed out by the defence. Needless to say, presumption under section 35 NDPS Act is in force against the accused and it was his duty to rebut the same but he has failed to do so.
25.2 Reliance is placed upon the judgment of Hon'ble Delhi High Court in the matter of Kanwar Pal @ Mama Vs State: 2017 CrLJ 2124(Del).
SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 21 of 22
PS Narela Industrial Area
Digitally signed
by DHIRENDRA
DHIRENDRA RANA
RANA Date:
2025.01.18
17:01:38 +0530
25.3 In the given facts and circumstances and considering the evidence,
accused Kamlesh @ Raju is held guilty and is convicted for the offence punishable under section 21(b) of the NDPS Act. Ordered accordingly.
Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2025.01.18 17:01:43 +0530 Announced in the open court (Dhirendra Rana) on 18.01.2025 ASJ / Special Judge (NDPS) (running in 22 pages) North:Rohini:Delhi SC No. 374/2019 FIR No. 215/2019 State Vs. Kamlesh @ Raju Page No. 22 of 22 PS Narela Industrial Area