Delhi District Court
State vs Shakil on 24 December, 2024
DLSH010059752017 Page 1 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr. FIR No.334/17 PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No.304/17 State Vs. Mohd. Shakil & Anr. FIR No.334/17 PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act In the matter of :- State ...(through Sh. Jitendra Sharma, Addl. PP) Vs. 1. Mohd. Shakil S/o. Malik Hussain R/o. Village Maliktulasuri, PS Vayisi, District Purniya, Bihar ....accused (Sh. Rajiv Pratap Singh, Advocate) 2. Mohd. Gulambar S/o. Mohd. Suban R/o. Village Bankepur, Bairampur, District Katiyar, Bihar ....accused (Sh. Rajiv Pratap Singh, Advocate) Date of institution : 14.09.2017 Date when judgment reserved : 18.12.2024 Date of Judgment : 24.12.2024 DLSH010059752017 Page 2 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr. FIR No.334/17 PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act JUDGMENT:
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1. Accused Mohd. Shakil and Mohd. Gulambar are before the Court facing charge under Sections 20(b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that total 4 Kg Ganja (2 Kg from each of accused) (intermediate quantity) was recovered from their possession on 25.07.2017.
2. In view of recovery of 4 Kg Ganja from both the accused, FIR No.334/17 was lodged at PS Welcome on 25.07.2017. After completion of investigation, charge-sheet was filed on 14.09.2017. Charges were framed on 27.03.2018 for offence u/s.20(b)(ii)(B) & 29 NDPS Act, which reads as under :
"That on 25.07.2017, at about 06.45 pm, at in front of Tentwala School, Gande Nale Ki Pulia, Welcome, Delhi, within the jurisdiction of PS Welcome, you were found in possession of 2 kg ganja each (cannabis), in contravention of provisions of NDPS Act and thereby you committed an offence punishable under Section 20
(b)(ii)(B)1 NDPS Act, 1985 and within the cognizance of Court of Sessions.
Secondly, prior to and till the aforesaid date and time, both of you were part of a criminal conspiracy to possess and sell 4 kg of contraband (ganja), in contravention of provisions of NDPS Act and thereby you both committed an offence punishable under Section 29 NDPS Act, 1985 and within the cognizance of Court of Sessions."
3. In order to prove the aforesaid charges, the prosecution examined 9 witnesses. The details of the said witnesses alongwith the documents that they exhibited during their 1 Inadvertently mentioned as 20(B) in the charge, though, there is no sub-section 20(B), rather the sub-section is 20(b)(ii)(B) in NDPS Act DLSH010059752017 Page 3 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act deposition is mentioned hereinbelow in tabular form :
Sl. No. Name of witness Documents Description exhibited PW1 Ct. Arun Kumar Dropped on 18.12.2024 in view of testimony of PW7 PW2 ASI Kartar Singh Ex. PW2/A DD Nos.18A & 19A and (recovery witness / Notice u/s.50 NDPS Act of First IO) accused Mohd. Shakil Ex. PW2/B Notice u/s.50 NDPS Act of accused Mohd. Gulambar Ex. PW2/C Seizure memo of Ganja Ex. PW2/D Tehrir Ex.PW2/ Ganja recovered from Article 1 accused Mohd. Gulambar Ex.PW2/ Ganja recovered from Article 2 accused Shakil Ex. PW2/ Pithu bag containing Ganja Article 3 carried by accused Mohd.
Shakil
Ex. PW2/ Pithu bag containing Ganja
Article 4 carried by accused Mohd.
Gulambar
Ex. PW2/ Sample of Ganja recovered
Article 5 from accused Mohd.
Gulambar
Ex. PW2/ Sample of Ganja recovered
Article 6 from accused Mohd.
Gulambar
Ex. PW2/E Original notice u/s.50 NDPS
Act of accused Mohd. Shakil
Ex. PW2/F Original notice u/s.50 NDPS
Act of accused Mohd.
Gulambar
PW3 HC Praveen Kumar Ex. PW3/A RC No.101/21/17
(witness of Ex. PW3/B Acknowledgment of FSL
depositing sealed
pullandas at FSL)
DLSH010059752017 Page 4 of 47
SC No.304/17
State Vs. Mohd. Shakil & Anr.
FIR No.334/17
PS : Welcome
U/s.20(b)(ii)(B) / 29 NDPS Act
PW4 Ct. Parmender
(recovery witness)
PW5 Ct. Deepak Malik Ex. PW5/A Arrest memo of accused
(recovery witness) Mohd. Gulambar
Ex. PW5/B Personal search memo of
accused Mohd. Gulambar
Ex. PW5/C Arrest memo of accused
Mohd. Shakil
Ex. PW5/D Personal search memo of
accused Mohd. Shakil
Ex. PW5/E Disclosure statement of
accused Mohd. Gulambar
Ex. PW5/F Disclosure statement of
accused Mohd. Shakil
PW6 SI Om Prakash Ex. PW6/1 Site plan
(2nd IO)
PW7 ASI Surender Kumar Ex. PW7/A Report u/s.57A NDPS Act
(Reader to ACP) Ex. PW7/B Copy of Entry No.3380
PW8 Insp.Prashant Kumar
(SHO PS Welcome)
PW9 ASI Jamshed Ali Ex. PW9/A Entry No.2554 in register
(MHCM) no.19
Admitted on 20.11.2024 Ex. AD-1 FSL report dated 22.09.2017
4. Upon examining the testimony of the aforesaid witnesses, it is found that :
1. On 25.07.2017 a secret informer came to PS Welcome and met PW2 ASI Kartar Singh and informed him that two persons having Ganja in their possession are tying to sell it and roaming in front of Tentwala School, New Jafrabad, Gandanala Pulia, Welcome, Delhi and that if raid is conducted, they can be apprehended.DLSH010059752017 Page 5 of 47 SC No.304/17 FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
2. PW2 ASI Kartar Singh, after being satisfied of the information, produced the secret informer before PW8 Inspector Prashant Kumar, to whom the secret informer gave the same information.
3. PW8 Inspector Prashant Kumar communicated the said information telephonically to ACP Seelampur and he directed PW2 ASI Kartar Singh to constitute a raiding team and take immediate action. PW2 ASI Kartar Singh recorded DD No.18A with respect to the said information at 6.15 pm on 25.07.2017 Ex.PW2/A and produced copy of the same before SHO for proceedings u/s 42 NDPS Act. The said copy was forwarded to ACP office by PW8 SHO Inspector Prashant Kumar.
4. PW2 ASI Kartar Singh constituted a raiding team, comprising of PW4 Ct. Parmender and PW5 Ct. Deepak Malik. PW2 alongwith IO Kit electronic weighing machine left the PS along with raiding party vide DD No. 19A Ex.PW2/B and reached the spot i.e. under construction site at Jafrabad Metro Station, 66 foota road at about 6.30 p.m., where he asked 4-5 public persons to join the investigation, but none agreed.
5. That without wasting time, PW2 alongwith secret informer, PW4 and PW5 reached the place in front of Tentwala School, New Jafrabad, where the secret informer pointed out towards both the accused namely Mohd. Shakil and Mohd. Gulambar and told that the said accused persons were trying to sell DLSH010059752017 Page 6 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Ganja and thereafter, the secret informer left the spot. The members of raiding team on pointing of the secret informer apprehended both the accused and PW2 ASI Kartar Singh introduced himself to them. PW2 asked 4-5 public persons to join the investigation, but none agreed. Hence, he interrogated both the accused and they revealed their names as Mohd. Shakeel s/o Malik Hussain and Mohd. Gulambar s/o Subhan.
6. Accused Mohd. Shakil was carrying a pitthu bag of black and green colour, whereas accused Mohd. Gulambar was carrying a pitthu bag on his back. PW2 ASI Kartar Singh conveyed the secret information to both the accused and informed them of their legal rights that they can search the members of raiding team before their search is conducted and that they can also get their search conducted in the presence of gazetted officer or magistrate and the meaning of gazetted officer or magistrate was also explained to them. However, both the accused refused to either search the members of raiding team or get themselves searched before the gazetted officer or magistrate. In this regard IO / PW2 also gave them notice under section 50 of the NDPS Act Ex.PW2/E (of accused Mohd. Shakil) and Ex.PW2/F (of accused Mohd Gulambar). As accused Mohd. Shakil stated that he was illiterate, hence, on the carbon copy of the notice under section 50 of the NDPS Act Ex.PW2/A, his refusal was recorded which bears DLSH010059752017 Page 7 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act his signatures and similarly, the refusal of accused Gulambar was recorded on carbon copy of notice Ex.PW2/B which also bears his signatures.
7. After refusal of accused, as recorded on the carbon copy of notice under section 50 of the NDPS Act, the pitthu bag carried by accused Mohd. Shakil was checked by PW5 Ct. Deepak Malik and it was found containing vegetative material, appearing to be Ganja, which was weighed on the weighing machine and found to be 2000 grams. Two samples of 250 grams each were drawn from the recovered Ganja and kept in separate polythene bags marked as Mark S1 and S2. Both the samples as well as remaining Ganja were separately sealed by PW2 ASI Kartar Singh with his seal of KS and the pullanda carrying the remaining Ganja was marked as mark S3.
8. Thereafter, in view of the refusal given by accused Mohd. Gulambar as recorded on carbon copy of notice under section 50 of the NDPS Act, he was searched by PW4, his pitthu bag was searched by PW4 Ct. Parmender and it was found containing vegetative material appearing to be Ganja. It was weighed on the weighing machine and found to be 2000 grams. Two samples of 250 grams each were drawn from the recovered Ganja and kept in separate polythene bags marked as Mark S4 and S5. Both the samples as well as remaining Ganja were separately sealed by PW2 ASI Kartar Singh with DLSH010059752017 Page 8 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act his seal of KS and the pullanda carrying the remaining Ganja was marked as mark S6. He also handed over his seal of KS to PW4 Ct. Parmender.
9. PW2 ASI Kartar Singh seized the aforementioned six pullandas Mark S1 to S6 vide seizure-memo Ex.PW2/C bearing signatures of both the accused on the second page, as well as signatures of PW4 and PW5.
10. PW2 ASI Kartar Singh prepared rukka Ex.PW2/D and handed over the same to PW5 Ct. Deepak along with case property, FSL form and carbon copy of seizure-memo.
11. PW5 Ct. Deepak took the rukka to PS and handed over the same to the Duty Officer, who recorded FIR Ex.AD-2 (admitted by accused u/s.294 Cr.P.C. on 20.11.2024) and made endorsement on the rukka Ex.PW2/D.
12. PW5 Ct. Deepak Malik took the pullandas, FSL form and carbon copy of seizure-memo to the PS, where he handed over the same to PW8 Inspector Prashant Kumar, SHO, PS Welcome, who checked the seal on six parcels as well as the FSL form and found the seal of KS affixed on them, after which he affixed his own seal of PK on the six parcels as well as FSL form after confirming the FIR number from Duty Officer, he also mentioned the FIR number on the parcels, FSL form and copy of seizure-memo and signed the parcels as well as said documents.
13. PW8 Inspector Prashant Kumar, SHO PS Welcome after DLSH010059752017 Page 9 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act having affixed his seal on the pullandas etc, called MHCM PW9 ASI Jamshed Ali and handed over the six parcels, FSL form and copy of seizure-memo to him, which were deposited in Malkhana vide entry no.2554 in register no.19 Ex.PW9/A.
14. Thereafter, on the instructions of PW8 Inspector Prashant Kumar, SHO PS Welcome, Duty Officer marked the investigation to PW6 SI Om Prakash and PW5 Ct. Deepak handed over to him the original rukka and copy of FIR. PW6 SI Om Prakash alongwith PW5 Ct. Deepak went to the spot where both the accused and PW2 ASI Kartar Singh as well as PW4 Ct. Parmender were found present. At the spot PW6 SI Om Prakash prepared site plan Ex.PW6/1 at the instance of PW2 ASI Kartar Singh.
15. PW6 SI Om Prakash prepared report under section 57 of the NDPS Act Ex.PW7/A regarding arrest and seizure, which was forwarded by PW8 Inspector Prashant Kumar to the ACP under his signature and was received in the office of ACP Shashank Jaiswal on 25.07.2017 vide diary no.3380 Ex.PW7/B, which was seen and signed by ACP Shashank Jaiswal at point A.
16. Both the accused were interrogated by PW6 SI Om Prakash and thereafter they were arrested vide arrest memos Ex.PW5/C and Ex.PW5/A respectively and their personal search was conducted vide personal search memos DLSH010059752017 Page 10 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Ex.PW5/D and Ex.PW5/B respectively, wherein besides other things original notices under section 50 of the NDPS Act was found with respect to both the accused, which are Ex.PW2/E and ExPW2/F.
17. After that, disclosure statements of both the accused were recorded vide ExPW5/E and Ex.PW5/F.
18. The original notice under section 50 of the NDPS Act as well as other articles recovered during personal search of both the accused, were deposited by PW6 SI Om Prakash with PW9 MHCM ASI Jamshed Ali.
19. PW9 ASI Jamshed Ali on 04.08.2016 on the directions of PW6 SI Om Praksh handed over two sealed parcels to PW3 HC Praveen vide RC no.101/21/17 Ex.PW3/A. PW3 deposited the same with FSL Rohini vide acknowledgment of FSL Ex.PW3/B. FSL report with respect to the said two samples dated 22.09.2017 is Ex. Ad-1 (admitted by accused persons on 20.11.2024), as per which the said two samples contained vegetative material which on physical microscopic, chemical and TLC examination was found to be Ganja (cannabis).
20. Two samples marked as Mark S1 and S4 of case property, from the time it was sealed by PW2 ASI Kartar Singh till the time it was examined in FSL, was not tampered with. The said case property was produced before the court during the testimony of PW2 and exhibited as Ex.PW2/Article1 and DLSH010059752017 Page 11 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Ex.PW2/Article2.
21. The remaining four pullandas S2, S3, S5 and S6 were also not tampered with from the time, they were seized by ASI Kartar Singh and sealed with the seal of KS, till the time they were produced before the court during the testimony of PW2 and exhibited as Ex.PW2/Article6, Ex.PW2/Article3 Ex. PW2/Article5 and Ex.PW2/Article4 respectively.
5. After closing of the prosecution evidence, statement of the accused persons under Section 313 Cr.P.C. was recorded on 18.12.2024, wherein accused persons pleaded innocence and claimed that they have been falsely implicated in the present case. They stated that they were lifted from their factory, where they used to work and were falsely implicated in this case. They further stated that their signatures were obtained by the police officials on blank papers. The accused opted not to lead evidence in his defence.
Arguments
6. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record.
7. Ld. Counsel for the accused persons submitted that as per record, the alleged recovery was made on 25.07.2017 at 6.45 p.m. from in front of Tentwala School, Gande Nale Ki Pulia, Welcome, Delhi. He submitted that the prosecution witnesses have admitted that the place of incident is a public place, where number of people keep on coming and going, but despite that, no DLSH010059752017 Page 12 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act public person could be joined by the investigating agency to the search and seizure of the alleged contraband. He further stated that there are CCTVs installed in and near the said school, but the said footage was also not produced by the investigating agency to substantiate its case. He also submitted that even after the contraband was recovered, the sampling proceedings were not got conducted as per Section 52(A) of NDPS Act before the Ld. Magistrate, rather the sampling proceedings were carried out at the spot itself, in clear violation of the provisions of Section 52 of NDPS Act. He further submitted that accused persons were arrested from the factory where they used to work and were thereafter, falsely implicated in the present case. As regards the signatures of the accused persons on the documents like seizure memo, notice u/s.50 NDPS Act etc., he submitted that the police had obtained the signatures of the accused persons on blank papers and thereafter filled them, so as to implicate them in the present case. He lastly submitted that there is no CDR record etc. to show that the accused persons were present at the spot, from where the alleged recovery was made.
8. Per contra, Ld. Addl. PP for the State submitted that the recovery witnesses have corroborated the testimony of each other in order to prove the recovery of contraband from the accused persons. He submitted that absence of public witnesses, despite having made efforts to join them as a witness, does not weaken the case of the prosecution. He also submitted that the arguments of the DLSH010059752017 Page 13 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Ld. Counsel for accused that accused was made to sign blank papers is without merits as is clear from the perusal of the documents. He also stated that if the CCTV footage had been available, the investigating agency would have surely produced the same before the Court. He lastly stated that as the recovery has been made from both the accused persons, therefore, there is no requirement to show that the accused persons were in contact with each other from CDR, or to prove their location through the CDR at the spot.
Legal requirement to prove the charges
9. Section 20 NDPS Act reads as under :
"20. Punishment for contravention in relation to cannabis plant and cannabis.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,--
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall DLSH010059752017 Page 14 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
10. As far as contravention of the provision is concerned, Section 8 of NDPS Act completely prohibits the provision of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
11. As per the Section, possession of all narcotic drugs is prohibited by Section 8.
DLSH010059752017 Page 15 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
12. The term "narcotic drugs" is defined in Section 2(xiv) as under :
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
13. As per the definition, 'narcotic drug' includes cannabis (hemp). Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
14. The term "cannabis (hemp)" is defined in Section 2(iii) of NDPS Act, as under :
"(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom"
(emphasis supplied)
15. "Cannabis (hemp)" besides other things also means Ganja i.e. the flowering and fruiting tops of cannabis plant. In the present case, the prosecution would be required to prove that the recovered substance was Ganja.
16. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity DLSH010059752017 Page 16 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act specified by the Central Government by notification in the Official Gazette;"
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
17. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.55 in the said notification, the small quantity for Ganja is 1000 gms and commercial quantity is 20 Kgs.
18. In order to prove the charges u/s.20(b)(ii)(B) NDPS Act, the prosecution is required to prove the following facts :
(1) That the accused were in possession of contraband. (2) That the possession was in contravention of the provision of the Act or any rule on order mode or condition of license granted thereunder.
(3) That the contraband was Ganja.
(4) That the quantity of the contraband was intermediate [for Section 20(b)(ii)(B)].
19. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, DLSH010059752017 Page 17 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act 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.2 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.
20. In Raj Kumar Karwal and Ors. vs. Union of India (UOI) and Ors. (21.03.1990 - SC) : MANU/SC/0014/1991, Hon'ble Apex Court considered the scheme of the Act as under:
"8. The Act is divided into VI Chapters accommodating 83 Sections. Chapter I contains the short title of the Act. definitions of various terms and expressions used therein and provisions enabling addition to and omission from the list of psychotropic substances. Chapter II entitled 'authorities & officers' empowers the Central as well as the State Government to make appointments of certain officers, etc. for the purposes of the Act. The newly added Chapter IIA provides for the Constitution of a national fund for control of 2 In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002
- BOMHC) : MANU/MH/1838/2002:
2. "In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution.
The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."
DLSH010059752017 Page 18 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act drug abuse. Provision for the prohibition, control and regulation on cultivation, production, manufacture, etc., of any narcotic drug or psychotropic substance is to be found in Chapter III. Chapter IV defines the offences punishable under the Act and prescribes the penalties therefor. Needless to say that the punishments prescribed are very severe. In some cases the minimum punishment is 10 years with fine extending to Rs. 2 lacs and above. By a recent amendment death penalty is prescribed for certain offences committed by persons after a previous conviction. Provision for rebuttable presumption of mens-rea culpable mental state-is also made under Section 35 and Special Courts are envisaged by Sections 36 and 36A for the trial of offences punishable under the Act. Every offence punishable under the Act is made cognizable by virtue of Section
37., notwithstanding the provisions of the Code. Then comes Chapter V which outlines the procedure to be followed by the officers appointed for the implementation of the various provisions of the Act. Sub-section (1) of Section 51 empowers a Metropolitan Magistrate or a Magistrate of the First Class or a Magistrate of the Second Class, specially empowered, to issue a warrant for the arrest of any person suspected of having committed any offence punishable under the provisions of Chapter IV of the Act and for the search of any premises, conveyance or place in which such person is suspected of having kept or concealed any narcotic drug or psychotropic substance. Sections 41(2), 42, 43, and 44 confer on officers named under Act the powers of arrest, search and seizure without any order or warrant from the concerned Magistrate. We will refer to these provisions in some detail when we discuss the impact thereof hereafter.
9. Power to stop, rummage and search any conveyance or goods carried in any conveyance or on any animal is conferred by Section
49. Section 51 provides that all warrants issued and arrests, searches and seizures made shall be governed by the provisions of the Code unless such provisions are not consistent with the provisions of the Act.
10. ...... Section 53A, inserted by Act 2 of 1989, makes a statement made and signed by a person before any officer empowered under Section 53 for investigation of offences, during the course of such investigation, relevant in certain circumstances e.g., when the maker DLSH010059752017 Page 19 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act of the statement is dead or cannot be traced or is incapable of giving evidence or is kept away by the opposite party or whose presence cannot be secured without delay or when he is examined as a witness in the case. Section 54 permits raising of a rebuttable presumption against an accused in a trial for any offence under the Act to the extent permitted by Clauses (a) to (d) thereof. Section 55 enjoins upon an officer-in-charge of a police station to take charge of and keep in safe custody any article seized under the Act and made over to him. Section 57 enjoins upon the officer making an arrest or effecting seizure under the Act to make a full report thereof to his immediate superior within 48 hours. Section 58 provides the punishment for vexatious entry, search, seizure or arrest. Section 67 empowers an authorised officer to call for information or require any person to produce or deliver any document or thing useful or relevant to the enquiry or examine any person acquainted with the facts and circumstances of the case. The newly added Chapter VA deals with forfeiture of property derived from and used in illicit traffic of drugs, etc. The last Chapter VI contains miscellaneous provisions."
21. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise presumption against the accused. The procedure provides that when the Officer u/s 41 NDPS Act receives secret information, he has to inform the same to his superior Officer within 72 hours. In case, any arrest or seizure is done, the Officer mentioned u/s 42 NDPS Act has to forward the same to the IO without unnecessary delay. The Officer mentioned u/s 42 NDPS Act is the complainant who arrests the accused and does recoveries himself or through the raiding party. The complainant is the witness who claims recovery of prohibited substances from the possession of the accused and these claims are verified and substantiated by the IO during DLSH010059752017 Page 20 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act investigation. It is further mandatory that the IO has to take measures for disposal of the alleged substances as per Section 52(4) of the Act. Further, the person arrested has to be produced before the Magistrate and the contraband seized is required to be dealt with by the Officer u/s 53 NDPS Act or the SHO in accordance with Section 52A of NDPS Act. 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. The Court, therefore, proceeds to discuss various stages of investigation, under different headings, as under :
Compliance of Section 42 NDPS Act
22. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to urgently inform his immediate official superior about the secret information and send the information so reduced into writing within 72 hours of its receipt.
DLSH010059752017 Page 21 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
23. With respect to the compliance of Section 42 NDPS Act, PW-2 ASI Kartar Singh categorically testified that he received the secret information on 25.07.2017 at about 6.00 p.m. and he produced the secret informer before the SHO and the secret information was telephonically passed onto ACP Seelam Pur by the SHO. His deposition in this regard is reproduced as under :
"On 25.07.2017, I was posted at PS-Welcome. On that day I was on duty and at about 6.00 pm one secret informer met me at the PS and gave me the information that two persons are having ganja in their possession and they are trying to sell ganja and are roaming infront of tent wala school, New Jafrabad, ganda nala puliya, Welcome, Delhi and if raided, they can be apprehended. I satisfied myself regarding the information and I produced the secret informer before the SHO. The secret information was passed on to SHO. He also satisfied himself regarding the secret information after making the inquiries from the secret informer. The information was passed to ACP, Seelampur by the SHO telephonically and a direction was received from ACP to conduct the raid regarding the secret information. SHO directed me to conduct the raid and I reduced the said information in the daily dairy register DD no.18A time 6.15 pm dated 25.07.2017. I produced the copy of DD no.18 before SHO for the proceedings u/s. 42 NDPS Act. Copy of DD no.18A is Ex. PW-
2/A." (emphasis supplied)
24. The witness was cross-examined in this regard as under :
"I do not remember what other investigation I had done on 25.07.2017 apart from this case. I had not taken the search of secret informer. DD entry regarding information given to ACP by the SHO was not done. The DD entry regarding proceedings u/s. 42 NDPS Act was done in presence of secret informer. The members of raiding party were present at the PS."
25. DD No.18A Ex. PW2/A corroborates the testimony of PW2 as in the said DD entry, it is categorically mentioned that the secret informer was produced before the SHO and the information was DLSH010059752017 Page 22 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act telephonically given to ACP Seelam Pur, after which, PW2 was directed to conduct a raid. The copy of the DD entry was also given to the SHO.
26. SHO PS Welcome was also examined as PW7 (i.e. Insp. Prashant Kumar). He also testified that the secret informer was produced before him by PW2 ASI Kartar Singh and after satisfying himself, he passed on the secret information to ACP Seelam Pur telephonically. He also stated that these facts were recorded in DD No.18A Ex. PW2/A, which also bears his signatures at point A. The relevant portion of his deposition is as under :
"On 25.07.2017, I was posted at PS Welcome as SHO. On that day in the evening hours, ASI Kartar Singh produced one secret informer in my office. I made enquiries from him. He told that two persons are roaming around alongwith ganja for selling the same in front of tentwala school Jafrabad, on the pulia of new Jafrabad drain, welcome Delhi and can be apprehended if raided. After satisfying myself from the information, I passed on the information through telephone to ACP Seelampur. Thereafter I directed to ASI Kartar Singh to constitute a raiding team and take immediate action. ASI Kartar Singh after recording the DD regarding the secret information, placed the copy of DD no.18A before me and I have seen the same. DD no.18A already Ex.PW2/A which bears my signature at point A. The copy of DD was then forwarded to ACP office."
27. This witness was cross-examined, in which he denied the suggestion that no secret information was received by him, or that the DD No.18A was ante-dated and ante-timed.
DLSH010059752017 Page 23 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
28. The depositions of PW2 as well as PW8 and the DD Entry No.18A Ex. PW2/A corroborate each other and established that the secret information so received by PW2 was communicated to PW8 and the said secret information was recorded in DD No.18A and also sent to ACP Seelam Pur.
29. From the testimonies of aforesaid witnesses, it is established on record that a secret information about the movement of accused persons was received by PW-2 ASI Kartar Singh at about 6.00 pm at PS Welcome. He immediately conveyed the secret information to his immediate senior officer PW7 Insp. Prashant Kumar, SHO PS Welcome, who was also present there, who conveyed the information to his immediate suuperior officer i.e. ACP Seelam Pur. The said secret information was reduced in writing vide Ex. PW2/A (DD No.18A) and was sent to the ACP Seelam Pur in compliance of Section 42 (2) of the NDPS Act. It is, thus, held that compliance of Section 42 NDPS Act has been properly made in the present case.
Discussion on the point of recovery of contraband
30. As per prosecution case, on 25.07.2017, on receiving secret information and after making necessary compliances, PW2 ASI Kartar Singh constituted a raiding team, comprising of PW4 Ct. Parmender and PW5 Ct. Deepak Malik. PW2 alongwith IO Kit electronic weighing machine left the PS along with raiding party vide DD No. 19A Ex.PW2/B and reached the spot i.e. under DLSH010059752017 Page 24 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act construction site at Jafrabad Metro Station, 66 foota road at about 6.30 p.m., where he asked 4-5 public persons to join the investigation, but none agreed. That without wasting time, PW2 alongwith secret informer, PW4 and PW5 reached the place in front of Tentwala School, New Jafrabad, where the secret informer pointed out towards both the accused namely Mohd. Shakil and Mohd. Gulambar and told that the said accused persons were trying to sell Ganja and thereafter, the secret informer left the spot. The members of raiding team on pointing of the secret informer apprehended both the accused and PW2 ASI Kartar Singh introduced himself to them. PW2 asked 4-5 public persons to join the investigation, but none agreed. Hence, he interrogated both the accused and they revealed their names as Mohd. Shakeel s/o Malik Hussain and Mohd. Gulambar s/o Subhan. Accused Mohd. Shakil was carrying a pitthu bag of black and green colour, whereas accused Mohd. Gulambar was carrying a pitthu bag on his back. After giving notice u/s.50 NDPS Act, the pitthu bag carried by accused Mohd. Shakil was checked by PW5 Ct. Deepak Malik and it was found containing vegetative material, appearing to be Ganja, which was weighed on the weighing machine and found to be 2000 grams. Two samples of 250 grams each were drawn from the recovered Ganja and kept in separate polythene bags marked as Mark S1 and S2. Both the samples as well as remaining Ganja were separately sealed by PW2 ASI Kartar Singh with his seal of KS DLSH010059752017 Page 25 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act and the pullanda carrying the remaining Ganja was marked as mark S3. Thereafter, pitthu bag of accused Mohd. Gulambar was searched by PW4 Ct. Parmender and it was found containing vegetative material appearing to be Ganja. It was weighed on the weighing machine and found to be 2000 grams. Two samples of 250 grams each were drawn from the recovered Ganja and kept in separate polythene bags marked as Mark S4 and S5. Both the samples as well as remaining Ganja were separately sealed by PW2 ASI Kartar Singh with his seal of KS and the pullanda carrying the remaining Ganja was marked as mark S6.
31. In order to prove the aforesaid recovery, the prosecution has examined PW2 ASI Kartar Singh, PW4 Ct. Parmender and PW5 Ct. Deepak Malik.
32. PW-2 ASI Kartar Singh, as regards the recovery, testified as under on 02.04.2024 :
"After that, I directed Ct. Deepak to check the pithu bag, which Mohd. Shakeel was having. On opening the same, it was found containing fruity and leafy material and smell of ganja was evident. On physical appearance it appear ganja. Accused Mohd. Shakeel stated that the material in the bag is ganja. I took out the recovered ganja from the pithu bag in a polythene bag and weighed the same on the weighing machine, it was 2000 gm. I took out two samples of 250 gms each from the recovered ganja and the same was put in two transparent polythene bags. The mouth of the two transparent polythene bags were tied with the help of rubber band. Both the samples were wrapped in white cloth and two separate pullandas were prepared and were marked as S1 and S2. Both the pullandas were sealed with the seal of KS. Remaining recovered ganja was kept in same pithu bag and the pithu bag along with ganja were wrapped in white cloth and pullanda was prepared and was sealed with the seal of KS. The pullanda was marked as S3. I directed Ct.DLSH010059752017 Page 26 of 47 SC No.304/17
State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Parmender to take the search of the pithu bag of accused Mohd. Gulambhar. The pithu bag opened and it was found containing fruity and leafy material and smell of ganja was evident. On physical appearance it appear ganja.
Accused Mohd. Gulambhar stated that the material in the bag is ganja. I took out the recovered ganja from the pithu bag in a polythene bag and weighed the same on the weighing machine, it was 2000 gm. I took out two samples of 250 gms each from the recovered ganja and the same was put in two transparent polythene bags. The mouth of the two transparent polythene bags were tied with the help of rubber band. Both the samples were wrapped in white cloth and two separate pullandas were prepared and were marked as S4 and S5. Both the pullandas were sealed with the seal of KS. Remaining recovered ganja was kept in same pithu bag and the pithu bag along with ganja were wrapped in white cloth and pullanda was prepared and was sealed with the seal of KS. The pullanda was marked as S6. I filled FSL form at the spot and put the seal impression of KS on the FSL form. The entire case property along with FSL form was seized vide seizure memo Ex. PW-2/C bears my signature at point-A."
33. The witness was cross-examined on 27.08.2019. However, nothing came forth in his cross-examination so as to doubt his deposition as regards the aforesaid recovery. The witness in his cross-examination categorically denied the suggestion that nothing was recovered from the possession of the accused and that he had given a false evidence during his examination-in- chief. His cross-examination in this aspect is as under :
" I am not aware whether members of raiding party were having mobile phone or not. We went to spot on foot. Passersby were there when the proceedings were going on. Raiding party took position at the spot with the secret informer. I do not remember the colour of the shirt pant, which the accused was wearing. I had not given the intimation to the PS regarding the recovery and apprehension of the accused persons. Gazetted officer or Magistrate was not called at the spot. Vol. The accused persons had refused to call. I was in uniform.DLSH010059752017 Page 27 of 47 SC No.304/17
State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Today I do not remember whether I had taken thumb impression or sign of the accused person on the documents. Ct. Deepak had apprehended Shakeel and Gulamber was apprehended by Ct. Praminder. I remained at the spot for 3-4 hours. I had not prepared seal handing over memo, however, it was mentioned in tehrir. 2nd IO came on foot. I left the spot at about 12 midnight. The proceedings were done while sitting on stone (pathar).
It is incorrect to suggest that no secret information was received or that no information was passed on to SHO and ACP or that no raiding party was constituted or that no proceedings u/s. 42 NDPS Act was done or that accused was no pointed out by secret informer at the pulliya, ganda nala, New Jafrabad or that accused persons were not apprehended by the members of raiding party or that nothing was recovered from the possession of accused persons or that all the proceedings were done at PS or that accused persons were lifted from the factory of Shakeel or that ganja was planted upon the accused persons or that I am deposing falsely."
34. The testimony of PW2 is further corroborated by PW-4 Ct. Parmender, who had accompanied the IO as well as PW5 Ct. Deepak Malik and secret informer to the spot where the accused were apprehended and recovery was made. The examination-in- chief of PW4 is on the same lines, as that of PW2. He categorically testified that the recovery was made in his presence and he had himself checked the pithu bag of accused Mohd. Gulambar, from which 2000 gms. of Ganja like substance was recovered.
35. This witness was also cross-examined by the Ld. Counsel for accused, but no discrepancy could be found in his deposition, which may adversely affect the credibility of this witness. This witness too categorically denied the suggestion that nothing was recovered from the possession of accused and that he had given DLSH010059752017 Page 28 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act a false testimony in his examination-in-chief. The relevant portion of the cross-examination is reproduced as under :
"It is wrong to suggest that no secret information was received or that accused persons were not pointed out by secret informer. It is wrong to suggest that I have not joined the investigation. It is wrong to suggest that no public person was joined into the investigation deliberately to falsely implicate the accused. It is wrong to suggest that nothing has been recovered from the accused. It is wrong to suggest that all the paper work was done while sitting in the police station. It is wrong to suggest that I am deposing falsely".
36. The testimony of the aforesaid two witnesses is further corroborated by the deposition of PW5 Ct. Deepak Malik, who in his examination-in-chief deposed on the same lines regarding the recovery made from the accused persons. He too was cross- examined by the Ld. counsel for the accused, however, no contradiction was found in the deposition of this witness and the deposition given by PW2 and PW4. In his cross-examination, he denied the suggestions given to him, particularly, that no recovery was made from the accused persons.
37. Therefore, the testimony of PW2 is corroborated by testimonies of PW4 and PW5, as far as the recovery of the alleged Ganja like substance from the accused persons is concerned. In the cross- examination of the witnesses, nothing has come forth to doubt the manner, in which the recovery was made from the accused persons.
DLSH010059752017 Page 29 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
38. From the testimony of the aforesaid witnesses, it stands proved that on 25.07.2017, Ganja like material was found in the bags, which the accused persons were carrying.
39. The accused in their statements recorded under Section 313 Cr.P.C. claimed to be innocent and alleged that they have been falsely implicated, however, they did not mention any reason whatsoever for their false implication. No suggestion in this regard was given to any of the witnesses during their cross- examination. The accused neither in their statements u/s.313 Cr.P.C. nor in any of the suggestions given to the prosecution witnesses, claimed animosity or acquaintance with the police officials, hence there was no ground or reason for the police to falsely implicate them in the present case. Furthermore, till date the accused have not raised any protest against their alleged false implication, which shows that they have taken this plea for the sake of plea and there is no substance in it.
40. The accused persons had taken a defence that they were lifted from the factory and falsely implicated in the case, but this defence seems to be an afterthought, as no suggestion in this regard was given to the first IO PW2 ASI Kartar Singh during his cross-examination in 2019 or even to PW4 and PW5, who were cross-examined in November 2024. It seems that the said defence of having been lifted from their factory was taken for the first time only during their statements u/s.313 Cr.P.C.
DLSH010059752017 Page 30 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
41. In view of the testimony of aforesaid three witnesses, it is held that prosecution has successfully proved that the accused persons were apprehended by PW2 ASI Kartar Singh, PW4 Cr. Parmender and PW4 Ct. Deepak Malik, alongwith 2 Kg Ganja like substance each (i.e. 4 Kg Ganja like substance in total), on 25.07.2017 at about 6.45 p.m. Compliance of Section 50 of NDPS Act
42. As per prosecution case, after apprehension of the accused persons, they were served with the mandatory notice under Section 50 of the NDPS Act and only after their refusal to avail their legal rights, their search was carried out. However, in their statement recorded under Section 313 Cr.P.C., the accused persons have denied to have been served with any such notice and claimed that at the time of their arrest, their signatures were taken by the police on some blank papers.
43. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused persons was conducted.
44. PW2 in his deposition categorically stated that he prepared notice u/s.50 of NDPS Act alongwith the carbon copy of the same and handed over the original to the accused. He also stated that he apprised the accused regarding their legal rights, as mentioned in the notice u/s.50 NDPS Act. Testimony of this witness on this aspect is as under :
"I prepared two notices u/s. 50 NDPS Act regarding both accused with the help of carbon paper and the contents of both notices were DLSH010059752017 Page 31 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act also read over to accused persons. The original notices were served on both accused persons. Accused persons stated that they are illiterate and refused for their search before any G.O. or Magistrate. Accused persons also refused to take search of raiding party. The refusal of accused persons were written by IO as per their dictation on the carbon copy of notice u/s. 50 NDPS Act since the accused persons stated that they are illiterate, the reply was written by me was read over to accused persons and after that accused persons put their signature on the reply. Both the accused persons were cursory search but no contraband was recovered.
At this stage, two carbon copies of notice u/s. 50 NDPS Act placed on the file is shown to witness and witness states that these are the carbon copy of notices, the original of which was served on the accused persons. The carbon copy of notice us. 50 NDPS of accused Mohd. Shakeel is Ex. PW-2IA and bears my signature at point-A. The carbon copy of notice us. 50 NDPS of accused Mohd. Gulambhar is Ex. PW-2/B and bears my signature at point-A. "
45. It may be noted that there is no cross-examination of this witness as regards the notice given by him to the accused persons and as regards the response of the accused persons to the notice, which was recorded on the carbon copy of the notice.
46. The aforesaid deposition is further corroborated by the testimony of PW4 Ct. Parmender and PW5 Cr. Deepak Malik, who deposed on the same lines in their examination-in-chief. Even these witnesses were not cross-examined on the aspect of notice u/s.50 of NDPS Act. Therefore, the testimony of aforesaid two witnesses remained unchallenged and uncontroverted. Rather, the two witnesses corroborated each other, both with respect to the serving of notice u/s.50 of NDPS Act and as regards informing the accused persons about their legal rights, as mentioned therein.
DLSH010059752017 Page 32 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
47. Further, the 2nd IO PW6 SI Om Prakash in his examination-in- chief categorically stated that upon arrest of the accused persons, their personal search was conducted vide memos Exs. PW5/B and PW5/D and during their personal search, original original notices u/s.50 NDPS Act were recovered, as under :
" Thereafter I prepared the site plan at the instance of ASI Kartar Singh and the same is Ex.PW6/1 which bears my signature at point A. After interrogating both the accused persons, Both the accused persons were arrested vide memos already Ex.PWS/C and Ex.PW5/A both bear my signature at point C. I also conducted personal search of both the accused persons vide personal search memos already Ex.PW5/D and Ex.PW5/B both bear my signature at point C. During the personal search of accused Shakil, one Original notice under section 50 of the NDPS Act, Rs.100/- and one mobile phone make samsung were recovered. During the personal search of accused Mohd. Gulambar, one Original notice under section 50 of the NDPS Act and Rs.70/-were recovered. I recorded the disclosure statements of both the accused persons and same are already Ex.PW5/F and Ex.PW5/E bear my signature at point C. We left the spot at around 11.30 pm along with both the accused persons along with Ct. Parminder to reach at PS Welcome."
48. The said witness was cross-examined by Ld. counsel for accused, however, no question or suggestion was put to the witness regarding the recovery of the original notices u/s.50 NDPS Act during the personal search of the accused persons.
49. In view of the testimonies of above witnesses, namely, PW-2 ASI Kartar Singh, PW4 Ct. Parmender, PW5 Ct. Deepak Malik and PW6 SI Om Prakash, the prosecution has successfully proved on record that the accused were properly served with the notices under Section 50 of the NDPS Act before their search DLSH010059752017 Page 33 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act was conducted and there was no violation of the said mandatory provision.
50. Further, it may be noted that during the personal search of the accused persons, no contraband was recovered from their personal search, rather the same was recovered from the bags that the two accused persons were carrying with them. It may be pointed out here that as far as the search of the bags is concerned, the requirement of notice u/s.50 NDPS Act, as such does not apply.
51. On this aspect, in judgment titled as Jarnail Singh vs. State of Punjab (11.02.2011-SC) : MANU/SC/ 0480/2011, it was observed as under :
"13. This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the Appellant. In such circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This Court in the case of Kalema Tumba v. State of Maharastra MANU/SC/0662/1999 : (1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows;
...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.DLSH010059752017 Page 34 of 47 SC No.304/17
State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Similarly, in the case of Megh Singh v. State of Punjab MANU/SC/0708/2003 : (2003) 8 SCC 666, this Court observed that;
A bare reading of Section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises.
The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh v. Pawan Kumar MANU/SC/0272/2005 : (2005) 4 SCC 350. In paragraphs 10 and 11, this Court observed as follows:
10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society.
Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of DLSH010059752017 Page 35 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, athaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article,specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
It has come in evidence that although the body search of the Appellant was conducted but no recovery of any narcotic was made. The body search only led to the recovery of Rs. 25/- from his pocket."
52. Therefore, the Court finds no reason to doubt the prosecution story as far as the compliance of section 50 of NDPS Act is concerned.
Compliance of Sections 55 and 57 of NDPS Act
53. As per section 55 of NDPS Act, an Officer In-charge of PS shall take charge of and keep in safe custody all articles seized under DLSH010059752017 Page 36 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act the Act within the local area of that PS, which may be delivered to him and affix his seal to such articles.
54. As per the prosecution case, on 25.07.2017, after making necessary compliances, the pitthu bag carried by accused Mohd. Shakil was checked by PW5 Ct. Deepak Malik and it was found containing vegetative material, appearing to be Ganja, which was weighed on the weighing machine and found to be 2000 grams. Two samples of 250 grams each were drawn from the recovered Ganja and kept in separate polythene bags marked as Mark S1 and S2. Both the samples as well as remaining Ganja were separately sealed by PW2 ASI Kartar Singh with his seal of KS and the pullanda carrying the remaining Ganja was marked as mark S3. Thereafter, pitthu bag of accused Mohd. Gulambar was searched by PW4 Ct. Parmender and it was found containing vegetative material appearing to be Ganja. It was weighed on the weighing machine and found to be 2000 grams. Two samples of 250 grams each were drawn from the recovered Ganja and kept in separate polythene bags marked as Mark S4 and S5. Both the samples as well as remaining Ganja were separately sealed by PW2 ASI Kartar Singh with his seal of KS and the pullanda carrying the remaining Ganja was marked as mark S6.
55. The sealed pullandas alongwith FSL form, carbon copy of seizure memo were carried by PW5 Ct. Deepak Malik from the spot to the PS, where he produced the said articles before PW8 DLSH010059752017 Page 37 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act Insp. Prashant Kumar, SHO PS Welcome, who affixed his seal on the said six pullandas and handed over the same to MHCM PW9 ASI Jamshed Ali.
56. PW5 Ct. Deepak Malik has categorically testified in his examination-in-chief that he had carried the six pullandas to the PS, where he handed over them to SHO PS Welcome as under :
"Seal after use was handed over to Ct. Parminder. After that IO prepared tehrir and handed over the same to me along with all the case property, FSL form and carbon copy of seizure memo with the direction to hand over the tehrir to DO PS-Welcome for registration of the case and handed over the sealed case property along with FSL form and carbon copy of seizure memo to SHO PS-Welcome."
57. No cross-examination was done of this witness on this aspect.
58. PW8 Insp. Prashant Kumar also testified that on 25.07.2017, at about 9.10 p.m., PW5 Ct. Deepak Malik came to his office and handed over the six sealed parcels to him, bearing the seal of KS, upon which he affixed his seal of PK. His deposition in this regard is as under :
"At about 9.10 pm, Ct. Deepak came to my office and handed over to me six sealed parcels sealed with the seal of 'KS' and having mark S1 to S6 along with FSL Form having seal of KS and carbon copy of seizure memo. I affixed my seal on the said parcels with my seal of PK and affixed my sample seal PK on FSL Form. After confirming the FIR Number from the duty officer, I wrote the same on all the parcels, FSL Form and copy of seizure memo. I also signed all the parcels, FSL Form and copy of seizure memo.
I then called the MHCM CP along with register no.19 in my office and MHCM has made entry of all the details in the register no.19 and I handed over case property and all documents to MHCM CP."DLSH010059752017 Page 38 of 47 SC No.304/17 FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
59. In this regard, the witness was given a suggestion that no parcels were produced by Ct. Deepak before him, which he denied. Thus, there is nothing in the cross-examination of this witness to doubt that he duly complied with the provisions of Section 55 NDPS Act by placing the seal of PK on all the pullandas which were received by him from Ct. Deepak.
60. His testimony is further corroborated by the deposition of PW9 ASI Jamshed Ali, who was working as MHCM at PS Welcome on 25.07.2017. The said witness testified as under :
"On 25.07.2017 I was posted at PS Welcome and was working as MHCM. On that day SHO Inspector Prashant Kumar called me in his office at about 9.20 pm. He handed over six sealed parcel, FSL form and copy of seizure-memo to me. I made entry in register no.19 at serial no.2554. Same is Ex.PW9/A (OSR)."
61. In his cross-examination, he denied the suggestion that the entries in register no.19 are ante-dated and that the parcels were not intact or tampered with, when the same were in his custody.
62. From the depositions of PW5, PW8 and PW9, it is clear that the case property (i.e. Ganja like substance in six pullandas), which was seized by PW2 ASI Kartar Singh, was taken to the PS by PW5 Ct. Deepak, where PW8 Insp. Prashant Kumar affixed his seal of PK on all the pullandas and handed them over to MHCM PW9 ASI Jamshed Ali for keeping them in safe custody. Therefore, the requirements of Section 55 were duly complied with in view of the aforesaid discussion.
63. Section 57 of NDPS Act provides that whenever any persons makes any arrest or seizure under the Act, he shall within 48 DLSH010059752017 Page 39 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act hours make a full report of all the particulars of such arrest of seizure to his immediate official.
64. The purpose of the Section is to provide a check on the person making arrest or seizure and to ensure fair investigation. The compliance of the Section ensures that the facts regarding arrest and the seizure comes to the knowledge of superior officers at the earliest and the chances of any subsequently improvement in the prosecution case are curtailed.
65. PW6 SI Om Prakash has categorically stated in his deposition that after the arrest of the accused persons, on 25.07.2017 itself, he had prepared a special report u/s.57 of NDPS Act Ex. PW7/A, which was placed before PW8 Insp. Prashant Kumar, SHO PS Welcome on the same day. PW8 also testified that he had gone through the report and forwarded it under his signatures to ACP Seelam Pur.
66. PW7 ASI Surender Kundu, Reader to ACP Seelam Pur produced the diary register, in which as per entry no.3380 dated 25.07.2017, Ex. PW7/B, report u/s.57 NDPS Act prepared by PW6 SI Om Prakash was received in the office of ACP Seelam Pur and the same was also seen by ACP Shashank Jaiswal, who placed his signatures on the same (Ex. PW7/A).
67. All the aforesaid three witnesses were cross-examined by the Ld. Counsel for accused persons, but nothing material has come in their cross-examination, except certain suggestions that the entries are ante-dated. Therefore, as per the testimony of PW6, DLSH010059752017 Page 40 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act PW8 and PW9, the provisions of Section 57 were duly complied with by the Investigating Officer PW6 SI Om Prakash. Discussions on non-joining of the public witnesses
68. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses.
69. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW2 ASI Kartar Singh, first IO that he made sincere efforts to join public witnesses, but none agreed.
70. In this regard, PW2 deposed that after reaching at the spot, he had requested 4-5 passersby to join the investigation, but none agreed and went away stating their genuine reasons and without disclosing their names and addresses.
71. The witness was cross-examined on this aspect, in which he stated that "passersby were there when proceedings were going on". No further question was put to the witness regarding public witnesses.
72. Thus, once it has come on record that public witness could not be joined despite efforts were made then non joining of independent witness is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh DLSH010059752017 Page 41 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
73. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690-1691 of 2012 decided on 19.10.12, it was held :-
"In a case of this nature, it is better if prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."DLSH010059752017 Page 42 of 47 SC No.304/17 FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
74. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
"Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency".
75. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
76. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with DLSH010059752017 Page 43 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act suspicion merely for the reason of non joining of independent witness as sufficient efforts were made by the PW-2 ASI Kartar Singh to join investigation. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses. Sampling u/s.52A NDPS Act
77. The Ld. Defence Counsel has vehemently assailed the sampling done at the spot by the 1st IO PW-2 ASI Kartar Singh during course of the arguments. He contended that sampling was done in violation of Section 52 A (2) of the NDPS Act and the 1 st IO should have drawn the samples before the Magistrate and for non compliance of the said mandatory provision, the entire prosecution case against the accused persons stands vitiated and on this count only, the accused persons are liable to be acquitted.
78. It is a matter of record that samples of the contraband recovered from the possession of the accused persons were drawn by PW2 ASI Kartar Singh, the 1st IO at the spot. Now, it has to be seen as to whether the act of drawing samples by the 1 st IO without taking recourse to the provisions of sub-section 2 of Section 52A of the NDPS Act has rendered the entire prosecution against the accused vitiated as argued by the Ld. Defence Counsel.
DLSH010059752017 Page 44 of 47 SC No.304/17 FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act
79. In Simaranjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023 decided on 09.05.2023, similar issue was raised by the Ld. Counsel for the appellant that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act.
80. The Hon'ble Apex Court while referring to paragraphs 15 to 17 of its decision in Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379 observed as under: -
"9. Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband".
81. With these observations, the Hon'ble Apex Court held that the the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt; accordingly set aside the impugned judgments and quashed the conviction and sentence of the appellant in that case.
82. In Yusuf @ Asif vs. State, Criminal Appeal No. 3191 of 2023 decided on 13.10.2023, a case was registered in the year 2000 on the basis of information received by the Intelligence Officer of Narcotics Control Bureau. As per the information, a vehicle was intercepted on 28.03.2000 and four persons present in the vehicle were found in possession of commercial quantity i.e. 20 kilogram of heroin. After trial, all the said four persons were held guilty under the provisions of NDPS Act and they were DLSH010059752017 Page 45 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh each, in default to undergo further imprisonment of one year. The said conviction was confirmed by the Hon'ble High Court by dismissing the appeal preferred by all the four convicts holding that there was no error in the findings of the Trial Court. Aggrieved by his conviction and sentence, one of the convicts preferred an appeal before the Hon'ble Apex Court.
83. The Hon'ble Supreme Court taking note of provisions of Section 52A(2), (3) and (4) of the NDPS Act, held as under: -
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the DLSH010059752017 Page 46 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.FIR No.334/17
PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
84. In view of proposition of law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that if samples of the seized contraband are not drawn in the presence of the Magistrate and the inventory of the seized contraband is not duly certified by the Magistrate as required under Section 52A (2) of the NDPS Act, the whole trial against the accused stands vitiated.
85. In the instant case, it has come on record from the testimonies of recovery witnesses that PW-2 ASI Kartar Singh, the 1 st IO after seizure of contraband, drew samples on the spot. He after seizure of the contraband did not send it to the officer as required under Section 53 of the Act nor inventory of the seized contraband was prepared by the Officer as mentioned in sub DLSH010059752017 Page 47 of 47 SC No.304/17 State Vs. Mohd. Shakil & Anr.
FIR No.334/17PS : Welcome U/s.20(b)(ii)(B) / 29 NDPS Act section (1) of Section 52A nor the samples were drawn in the presence of the Magistrate nor the samples so drawn at the spot have been certified by the Magistrate to be correct. It is, thus, evident that the IO did not follow the procedure as laid down under Section 52A(2) of the NDPS Act while drawing the samples and there is violation of said mandatory provision.
86. Hence, the accused persons are liable to be acquitted on this ground alone as has been done by the Hon'ble Apex Court in the judgments cited above.
Conclusion
87. In view of the aforesaid discussion and in light of judgment titled Yusuf @ Asif (supra), both the accused, namely, Mohd. Shakil and Mohd. Gulambar are given benefit of doubt and they are acquitted of the offence punishable under Section 20(b)(ii)(B) & 29 of the NDPS Act.
88. Accused are directed to furnish bail bonds u/s.437A Cr.P.C in the sum of Rs.20,000/- each with surety each in like amount.
89. File be consigned to Record Room after necessary compliance.
Announced in the open Court Digitally signed SAURABH by SAURABH PARTAP PARTAP SINGH LALER on 24th December 2024 SINGH Date:
2024.12.24 LALER 15:34:50 +0530 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi