Delhi District Court
State vs Manish Verma on 17 February, 2025
DLSH010038712020 Page 1 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act In the matter of :- State ...(through Sh. Jitendra Sharma, Addl. PP) Vs. Manish S/o. Sh. Satish Verma R/o. H.No. 7, Gali No.8, Subhash Nagar, Ghaziabad, UP. ....accused (Sh. Aditya Tyagi, Advocate) Date of institution : 10.08.2020 Date when Judgment reserved : 21.01.2025 Date of Judgment : 17.02.2025 Final decision : Convicted ::JUDGMENT:
:
1. Accused Manish is before the Court facing charge under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that a white colour transparent polythene containing smack/heroin weighing 38 grams was recovered from his possession on 12.06.2020.
2. In view of alleged recovery of 38 gms smack from accused Manish, FIR DLSH010038712020 Page 2 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act No.293/2020 was lodged at PS Seemapuri on 12.06.2020. After completion of investigation, charge-sheet was filed on 10.08.2020. Charge was framed on 03.10.2023 for offence u/s.21(b) NDPS Act, which reads as under:-
"That on 12.06.2020, at about 6.00 pm, near A Block Park Gate, New Seema Puri, Delhi within the jurisdiction of PS Seema Puri, you were found standing in suspicious condition and apprehended by the police official, namely, Constable Prince while you were trying to flee away on seeing the said police official; and upon search you were found in possession of a white colour polythene in left pocket of your wearing shorts; and on opening the same, it was found containing another transparent polythene containing brown colour powdery substance i.e. 'smack' weighing about 38 grams, in contravention of provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act"); and thus thereby you committed an offence punishable under Section 21 (b) of the NDPS Act and within my cognizance."
3. To prove the aforesaid charge, the prosecution examined 08 witnesses. The details of the said witnesses along with the documents that they exhibited during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description
exhibited
PW1 SI Okesh Pal, Ex. PW1/A Copy of FIR
(Duty Officer) Ex. PW1/B Endorsement on rukka
Ex. PW1/C Certificate u/s.65B IEA
Ex. PW1/D Copy of DD No.0075A
PW2 HC Amar Pal Ex.PW2/A Relevant entry at sl no.804/3429
(MHCM, Ex.PW2/B Copy of acknowledgment
deposited case
property in Ex.PW2/C FSL result entry at point C
malkhana)
PW3 HC Prince Ex. PW3/A Seizure memo
(recovery witness Ex. PW3/B Statement of this witness who made chance recovery) Ex. PW3/C Disclosure statement Ex. PW3/D Arrest memo Ex. PW3/E Personal search DLSH010038712020 Page 3 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act Sl. No. Name of witness Documents Description exhibited Ex. PW3/F Original notice under section 50 of the NDPS Act Ex.P-1 Personal articles Ex. P-2 Sample of case property Ex. P-3 Sample of case property Ex. P-4 White colour polythene containing one small polythene pouch containing brown colour powder PW4 HC Kuldeep Ex.PW3/A Seizure memo (accompanied IO Ex.PW3/B Rukka to the spot) Ex.PW4/1 Site plan Ex. PW3/D Arrest memo Ex. PW3/E Personal search memo Ex. PW3/F Original notice under section 50 of the NDPS Act PW5 HC Sandeep Ex.PW5/1 Copy of RC (took samples to FSL) PW6 HC Devendra Ex. PW6/1 Original report u/s.57 prepared by SI (Produced report Vineet Prata Singh u/s.57 NDPS Act) PW7 Retired ACP Ex.PW6/1 Original report u/s.57 prepared by SI Mukesh Tyagi Vineet Prata Singh (ACP PS Seemapuri) PW8 SI Vinit Pratap Ex.PW8/A Carbon copy of notice under section 50 of Singh the NDPS Act (IO, who reached Ex.PW8/B Rukka the spot after PW-
3 made a chance Ex.PW3/C Disclosure statement
recovery) Ex.PW8/D Arrest memo
Ex.PW8/C DD No.6A
Admitted Documents Ex. PX FSL Report dated 26.02.2021
(Admitted on 13.09.2024)
DLSH010038712020 Page 4 of 72
SC No.133/2020
State Vs. Manish
FIR No.293/2020
PS : Seemapuri
U/s.21(b) NDPS Act
4. After examining the testimony of the witnesses mentioned in the table above, it is found that they gave evidence about the following facts for the prosecution: -
4.1. On 12.06.2020, while PW3 HC Prince was on patrolling duty in the area of PS Seema Puri on his bike, at about 6.05 p.m., he reached 70 Foota Road, A Block, New Seema Puri Park, where one person met him and told him that a boy is standing at the gate of park of A Block in suspicious condition.
4.2. PW3 went to gate of park of A Block and saw accused standing there and when he signaled accused to come, the accused instead of coming to him, tried to escape, upon which he chased the accused and apprehended him. There accused was found in possession of one white colour polythene bag. 4.3. When PW3 asked accused as to why he tried to escape by running away from the spot and what he was carrying in the white colour polythene bag, accused failed to give satisfactory answer, upon which PW3 opened the white colour polythene bag, in which he found powder of brownish colour.
He smelled the same and found the same to be like that of smack. Thereafter, he called Duty Officer and informed him about apprehension of the accused and the recovered smack like substance from him, w.r.t. which DD No.75A Ex. PW1/D was recorded by PW1 SI Okesh Pal, Duty Officer. The said DD was marked to PW8 SI Vinit Pratap Singh. 4.4. Upon receiving the said DD, PW8 SI Vinit Pratap Singh, who was on patrolling duty along with PW4 HC Kuldeep, reached at the spot along with IO kit, weighing machine and field testing kit, where they found the accused and Ct. Prince present. PW3 Ct. Prince handed over the custody DLSH010038712020 Page 5 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act of accused to PW8 and also handed over him the white colour polythene bag containing the smack like substance.
4.5. Accused disclosed his name as Manish to PW8 and he recorded statement of PW3 Ex. PW3/B and requested 4-5 public persons to join investigation, but none agreed and left without disclosing their names and addresses citing their personal excuses, however, no notice could be served upon them due to paucity of time. Upon interrogation from accused, he disclosed that the said recovered substance was smack and when it was tested on field testing kit, it came positive for smack. The substance was weighed on the weighing machine and was found to be 38 gms. 4.6. PW8 thereafter conveyed the information to SHO and ACP. SHO instructed him to take legal action. PW8 apprised the accused about his legal rights that before his search is conducted, he can take search of members of raiding team and that his search can be conducted in the presence of Gazetted Officer or Magistrate or he can be taken before them for his search. In the meanwhile, PW7 ACP Mukesh Tyagi also reached at the spot and in his presence, accused was again apprised about his legal rights and notice u/s.50 NDPS Act (Ex. PW3/F) was served upon him and its receipt was obtained on the carbon copy Ex. PW3/A of the same. As accused denied getting his search conducted before a Gazetted Officer or Magistrate and also denied to search the raiding party, therefore, his refusal was recorded on carbon copy Ex. PW8/A, which bears his signatures at point C as well as signatures of PW3 and PW4. Thereafter, search of accused was conducted, but no further contraband was recovered from his possession.
DLSH010038712020 Page 6 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act 4.7. The recovered contraband in white polythene bag was weighed on the weighing scale and found to be 38 gms., out of which two samples of 5 gms each were taken out in transparent polythene bags and the same were marked as A1 and A2 and the remaining contraband was kept in a cloth pulanda and marked as A and all the three pulandas were sealed with the seal of SK and seized vide seizure memo Ex. PW3/A, bearing signatures of accused as well as signatures of PW3 & PW4. Seal after use was handed over by PW8 to PW4 and PW8 also filled the FSL Form. PW8 on the statement of PW3 (Ex. PW3/B), prepared rukka Ex. PW8/B and handed over the same along with three sealed parcels, carbon copy of seizure memo and the FSL Form to PW4 Ct. Kuldeep and instructed him to hand over the case property to SHO PS Seema Puri and the rukka to the Duty Officer.
4.8. PW4 Ct. Kuldeep along with the articles and documents reached PS Seema Puri at about 10.00 p.m., where he handed over rukka to PW1 SI Okesh Pal, Duty Officer, who recorded FIR Ex. PW1/A and also made endorsement on the rukka Ex. PW1/B. He also gave certificate U/s.65B of Indian Evidence Act (IEA) Ex. PW1/C w.r.t. the computerized copy of FIR. PW1 handed over the original rukka and copy of FIR to PW4 to be handed over to PW8 / IO SI Vinit Pratap Singh.
4.9. PW4 Ct. Kuldeep handed over three sealed pulandas sealed with the seal of SK to the SHO Insp. Harish Kumar (expired, hence dropped from the list of witnesses on 05.04.2024), who further sealed the three sealed pulandas with the seal of HK and handed over the same to PW2 HC Amarpal, MHCM, who deposited the same in Malkhana vide entry at sl. no.804/3429 in register no.19 Ex. PW2/A. After the registration of the DLSH010038712020 Page 7 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act FIR, PW4 Ct. Kuldeep along with copy of FIR and original rukka, went back to the spot, where he handed over the same to PW8, who thereafter prepared site plan Ex. PW4/1 at the instance of PW3. 4.10. PW8 interrogated the accused and recorded his disclosure statement Ex.
PW3/C, bearing his signatures and signatures of PW3 & PW4. Accused was arrested thereafter vide arrest memo Ex. PW3/D, bearing his signatures and signatures of PW3 & PW4 and intimation as regards his arrest was given to his mother on mobile no.xxxxx34576. Thereafter, personal search of accused was conducted vide memo Ex. PW3/E, bearing his signatures and signatures of PW3 & PW4, wherein besides a Samsung mobile (Ex. P1) and Rs.30/-, original notice u/s.50 NDPS Act (Ex. PW3/F) was recovered. Thereafter, accused was brought back to the PS, where DD No.6A Ex. PW8/C was recorded w.r.t. recovery and arrest. PW8 prepared report u/s.57 NDPS Act (Ex. PW6/1) regarding recovery of 38 gms of smack like substance and regarding arrest of accused, which was sent to SHO, who forwarded it at point B to ACP and was received in the office of ACP on 13.06.2020 vide Diary No.2284 (Ex. PW6/1) by PW6 HC Devender and the said report was signed by PW7 at point A. On 12.06.2020, at about 11.30 p.m., SI Vinit Pratap Singh deposited the personal search articles in the Malkhana w.r.t. which entry was made vide Ex. PW2/A. 4.11. On 08.07.2020, PW5 HC Sandeep on the directions of MHCM handed over two sealed pulandas Mark A1 and A2, one FSL Form with seal of SK to deposit the same in FSL Rohini, vide RC No.82/21/2020 dated 08.07.2020 Ex. PW5/1 (also Ex. PW2/A). After depositing the said two DLSH010038712020 Page 8 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act pulandas in FSL, acknowledgment Ex. PW2/B was received, which was deposited with PW2 / MHCM.
4.12. On 01.04.2021, result from FSL was received along with parcel through Ct. Deepak, w.r.t. which entry was made in register no. 19 Ex. PW2/C. The case property was not tampered with after it was seized by any of the prosecution witnesses and the same remained intact till the time it was deposited with the FSL.
4.13. The said samples Mark A1 to A2 were analysed from 20.08.2020 to 26.02.2021 at FSL by Ms. Kavita Goyal, Asstt. Director (Chemistry), who prepared report in this regard, dated 26.02.2021 Ex. PX (admitted by accused on 13.09.2024), as per which the material contained in the said samples was found containing Acetaminophen, Caffeine, Phenobarbital, Dextromethorphan, Morphine, Acetylcodeine, 6-Monoacetylmorphine and Trimethoprim.
4.14. The case property was produced in Court and identified by PW-3 as Ex.P-
1 to Ex.P-4.
5. After closing of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded his innocence and claimed that he has been falsely implicated in the present case. In his defence he said1: "It is a false case. I am innocent. I have been falsely implicated in the present case. On 12.06.2020, I was going from the house of my Bua at Shahdara towards my house at Gandhi Nagar, Ghaziabad and when I reached Bhopora Chowk, at about 2.30 - 3.00 p.m., my auto was got stopped by police officials. Two police officials sat in the said auto with me and asked the auto driver to take the auto to PS Seema Puri. Thereafter, I 1 In answer to question No.18 in statement under section 313 Cr.P.C recorded on 10.1.2025.
DLSH010038712020 Page 9 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act was falsely implicated in this case. My signatures were obtained on certain blank papers. My family members were also not informed that I was taken in custody."
6. Accused opted not to lead evidence in defence. Accordingly, defence evidence was closed.
Arguments
7. On 21.1.2025 final arguments were addressed by Sh. Jitendra Sharma, Ld. Additional Public Prosecutor and Sh. Aditya Tyagi, Ld. Counsel for the accused and same were recorded in the order sheet of even date.
8. Sh. Aditya Tyagi, Ld. Counsel for accused Manish made the following submissions:-
8.1. That in statement u/s.161 Cr.P.C. of PW2, there is no mention of entry at sl. no.804/3429 in register no.19, vide which the case property was deposited in Malkhana on 12.06.2020, which fact was stated by PW2 in his examination-in-chief.
8.2. That the case property was deposited in Malkhana on 12.06.2020, but after a delay of about a month, the case property was sent to FSL on 08.07.2020, which is a clear contravention of standing order no. 1/88 dated 15.03.1988, as per which, the sample has to be dispatched to the FSL within 72 hours. 8.3. PW3 in his examination-in-chief stated that when the accused was apprehended, he was carrying one white colour polythene bag, which was found containing a brownish colour powder, which is contrary to the statement u/s.161 Cr.P.C. of the said witness. The witness was also confronted with the said statement during his cross-examination. 8.4. PW3 in his cross-examination disclosed about landmark near the spot i.e. 70 Foota Road, Police booth, New Seema Puri, Delhi, however, the said DLSH010038712020 Page 10 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act booth is not shown in the site plan Ex. PW4/1 and a question in this regard was also put to the witness.
8.5. That there is cutting in arrest memo and conviction slip with respect to the date of arrest, which is mentioned as '13' after the cutting. 8.6. That in the rukka, which was recorded by PW8, at the bottom of his signatures on the last page of the rukka, the PS is mentioned as 'Anand Vihar' and thereafter corrected and mentioned as 'Seema Puri', which fact is in line with the statement u/s.313 Cr.P.C. of the accused, as per which the accused was stopped by the police officials at Bhopra Chowk and thereafter, taken to PS Seema Puri.
8.7. Further, the notice u/s.50 NDPS Act Ex. PW8/A is not in line with Section 50 NDPS Act, as in the notice, the word 'nearest' is not mentioned. In this regard, Ld. Counsel relied upon judgments titled as Arisa Begum Vs. State (Crl. Appeal No.3/2001 dtd.12.01.2009 of Hon'ble Delhi High Court), Union of India Vs. Shah Alam (Crl. NO.1158/2004 of the Hon'ble Apex Court) and Ashok Kumar Sharma Vs. State of Rajasthan 2013(2) SCC 67.
8.8. It is also pointed out that no public witness has been joined during the proceedings, which raises serious doubt as regards the recovery made from the accused. In this regards, Ld. Counsel relied upon judgment titled as Bantu Vs. State Govt. of NCT of Delhi (Bail Appl. No.2287/22 dtd.08.07.2024 of Hon'ble Delhi High Court).
8.9. PW4 HC Kuldeep in his examination-in-chief dated 29.01.2024 mentioned that the IO before reaching the spot, asked 4-5 public persons to join investigation, which shows that recovery is planted, otherwise, there was no reason to join 4-5 public persons before reaching the spot.
DLSH010038712020 Page 11 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act 8.10. PW4 further stated that the site plan Ex. PW4/1 was prepared at the instance of PW3 Ct. Prince in his presence, however the site plan does not bear the signatures of PW4.
8.11. During the proceedings of recovery, seizure or arrest, neither videography, nor photography was conducted by the recovery witnesses or by the IO. 8.12. The samples were drawn by PW8 at the spot itself, as mentioned in his statement as well as rukka, which is in contravention of the provisions of Section 52A NDPS Act. In this regard, Ld. Counsel relied upon judgments titled Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No.1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC
379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, 2024 DHC 5099.
9. Per contra, Ld. Addl. PP submitted that the non-mentioning of entry at Sl.
No.804/3429 in statement u/s.161 Cr.P.C., does not adversely affect the deposition of PW2. As regards delay in sending the samples to FSL, he submitted that mere delay in dispatching the samples to FSL does not mean that the samples were tampered with. He further submitted that PW3 in his cross-examination clarified that the accused was carrying white colour polythene bag in his half pant and that is why, he mentioned in the Court that accused was carrying white colour polythene. As regards the cutting and re-writing on the arrest memo, conviction slip and rukka, the Ld. Addl. PP submitted that the cutting by itself does not render the prosecution story doubtful. As regards non-mentioning of the word 'nearest' in notice u/s.50 NDPS Act, Ld. Addl. PP has relied upon the judgment titled State of NCT of Delhi Vs. Mohd. Jabir in Crl. Appeal No.4931/2024 dated 02.12.2024 DLSH010038712020 Page 12 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act of the Hon'ble Apex Court. Ld. Addl. PP further submitted that as far as the photography and videography at the spot and joining of public persons is concerned, the same by itself does not absolve the accused of the charges levelled against him. As regards deposition of PW4 HC Kuldeep that PW8 asked 4-5 public persons to join the investigation before reaching the spot, Ld. Addl. PP submitted that PW8 asked 4-5 public to join investigation, as he was aware of the recovery, as the recovery was a chance recovery. Lastly, w.r.t. contravention of Section 52A NDPS Act, Ld. Addl. PP has relied upon the judgment titled as Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No.250/25 of Hon'ble Apex Court and prayed that the accused is liable to be convicted u/s.21(b) NDPS Act. Legal Requirement to prove the Charges
10. Section 21 NDPS Act reads as under:
"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 licence 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;
(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." (emphasis supplied) DLSH010038712020 Page 13 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
11. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter- State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes." (emphasis supplied)
12. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
13. The term "narcotic drugs" is defined in Section 2(xiv) as under :
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
14. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
15. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :
DLSH010038712020 Page 14 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
16. "Opium Derivatives" besides other things also means heroin. It is defined in s.2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
17. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;"DLSH010038712020 Page 15 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act (viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
18. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
19. In order to prove the charges u/s.21(b)NDPS Act, the prosecution is required to prove the following facts:
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any rule on order made or condition of license granted thereunder. (3) That the contraband was opium derivative /heroin. (4) That the quantity of the contraband was intermediate for Section 21(b).
20. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced DLSH010038712020 Page 16 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act 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.
21. In State of Punjab vs. Balbir Singh 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under 2
1. In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 -
BOMHC) : MANU/MH/1838/2002:
2. "In view of the principle that Ceaser's wife must be above-board, the investi-
gating agency has to be consistent with the procedure laid down by law while conduct- ing 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 im- portance to the personal liberty a fundamental right of (he citizen, the search was con- ducted. 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 proce- dure 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."
DLSH010038712020 Page 17 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision DLSH010038712020 Page 18 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
22. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by DLSH010038712020 Page 19 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
23. The court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:
Discussion on the point of compliance of Section 42 NDPS Act
24. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule DLSH010038712020 Page 20 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." (emphasis supplied)
25. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to record the secret information in writing and send the information so reduced into writing within 72 hours of its receipt to immediate official superior.
26. The present case is a case of chance recovery as no secret information was received before the apprehension of the accused. Accordingly, the recording of secret information in terms of Section 42(1) NDPS Act and forwarding the same to immediate official superior within 72 hours was not required in the present case. Thus, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case. Discussion on the point of compliance of Section 50 of NDPS Act
27. Section 50 NDPS Act is as under :
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub- section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.DLSH010038712020 Page 21 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
28. The legal position in respect to Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in case titled as State vs Baldev Singh AIR 1999 SC 2378 that the compliance of the provisions of section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of chance recovery. The relevant para of this judgment reads as under:-
"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted." (emphasis supplied)
29. In the case titled as State of Punjab vs. Balbir Singh (1994) 3 SCC 299, Hon'ble Apex Court had observed as under:-
"25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows:
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that DLSH010038712020 Page 22 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act." (emphasis supplied)
30. In State of H.P. vs. Sunil Kumar (05.03.2014 - SC) : MANU/ SC/0193/2014, a case of chance recovery, Hon'ble Apex Court considered the question regarding application of Section 50 NDPS Act. Relevant para of the said judgment dealing with chance recovery and notice u/s.50 NDPS Act are reproduced as under:
"Chance recovery:
11. The State is in appeal against the acquittal of Sunil Kumar and the broad submission is that the recovery of charas from him was a chance recovery.
Under these circumstances, in view of the Constitution Bench decision in Baldev Singh which endorsed the view taken in State of Punjab v. Balbir Singh (1994) 3 SCC 299 the personal search of Sunil Kumar resulting in the recovery of contraband did not violate Section 50 of the Act. Reliance was placed by learned Counsel on paragraph 25 in Balbir Singh which was also endorsed by the Constitution Bench. It was submitted that it is only after a chance or accidental recovery of any narcotic drug or psychotropic substance by any police officer that the provisions of the Act would come into play. It is then that the empowered officer should be informed and that empowered officer should thereafter proceed to investigate the matter in accordance with the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered DLSH010038712020 Page 23 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we need to firstly understand what a 'chance recovery' is. The next question would be whether the provisions of Section 50 of the Act would apply when there is a chance recovery.
14. The expression 'chance recovery' has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 this Court considered a chance recovery as one when a police officer "stumbles on" narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC 608 the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a 'chance recovery'.
15. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a "positive suspicion" that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected notwithstanding the submission that drugs are easily available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs and indeed that is also not the case set up in this appeal. It was plainly a chance or accidental or unexpected recovery of charas-Sunil Kumar could well have been carrying any other contraband such as, smuggled gold, stolen property or an illegal firearm or even some other drug.
17. We are not going into the issue whether the personal or body search of Sunil Kumar (without a warrant) was at all permitted by law under these circumstances. That was not an issue raised or canvassed before the Trial Court or the High Court or even before us, although it has been adverted to in the written submissions by Learned Counsel assisting us on behalf of Sunil Kumar. Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is concerned, the issue is no longer res integra in view of the decision of the Constitution Bench in Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though the Chamba area may be one where such drugs are easily available. At best, it could be said the police officers suspected Sunil Kumar of carrying DLSH010038712020 Page 24 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act drugs and nothing more. Mere suspicion, even if it is 'positive suspicion' or grave suspicion cannot be equated with 'reason to believe'. Joti Parshad v. State of Haryana 1993 Supp (2) SCC 497 and Sheo Nath Singh v. Appellate Assistant CIT (1972) 3 SCC 234. These are two completely different concepts. It is this positive suspicion, and not any reason to believe, that led to the chance recovery of charas from the person of Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. Bharatbhai Bhagwanjibhai v. State of Gujarat (2002) 8 SCC 327 The procedure to be followed when there is prior information of the carrying of contraband drugs is laid down in the Act and it is nobody's case that that procedure was followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that Sunil Kumar was carrying some contraband, therefore, it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of Section 50 of the Act ought to have been complied with. The recovery of charas on the body or personal search of Sunil Kumar was clearly a chance recovery and, in view of Baldev Singh, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act."
31. In view of the aforesaid judgment, in a case of chance recovery, like the present one, notice u/s.50 NDPS Act is not required to be given before the search of the accused persons is conducted.
32. However, it is noted that as soon as the police official (PW3) came to know that the accused was carrying heroin/smack, upon checking the polythene bag containing brown coloured powder, the further proceedings were conducted as per the provisions of NDPS Act, as IO PW8 SI Vinit Pratap Singh upon reaching the spot gave notice u/s.50 NDPS Act to the accused before his complete bodily search was conducted. Thus, after the apprehension of accused and chance recovery of contraband by PW3 and before his bodily search was conducted by IO/PW8, mandatory notice u/s.50 NDPS Act was served upon him and only after his refusal to avail his legal rights, his bodily search was carried out. However, in his statement recorded under Section 313 Cr.P.C., the accused has denied having been DLSH010038712020 Page 25 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act served with any such notice and claimed that at the time of his arrest, his signatures were taken by the police on some blank papers.
33. Given the accused's claim, it is necessary to determine whether a notice under Section 50 of the NDPS Act was served upon him prior to conducting his bodily search.
34. PW8 in his deposition categorically stated that he prepared notice u/s.50 NDPS Act and handed over the same to the accused. He also testified that he apprised the accused regarding his legal rights, as mentioned in the notice u/s.50 NDPS Act. Testimony of this witness on this aspect is as under:
"Thereafter I apprised the accused about his legal right by saying that he can get himself searched as well as search of other police officers in the presence of any Gazetted officer or the Magistrate or that he can be taken to a gazetted officer or magistrate for this purpose. However accused refused to get himself searched in the presence of any Gazetted officer or the Magistrate as well as to search the other police officers in the presence of any Gazetted officer or the Magistrate. In the meanwhile, ACP also reached at the spot. I prepared notice u/s.50 NDPS Act in duplicate by putting carbon between two plain papers and handed over original notice to the accused. Accused wrote his denial on the carbon copy of the notice. The carbon copy of notice is Ex. PW8/A. The same bears signatures of accused as receipt of original notice at point C, carbon impression of my signatures at point X, denial of the accused encircled as Y, signatures of accused below the denial at point C1, my signatures below the denial at point X1. I took cursory search of the accused, but no further contraband was recovered. "
35. It may be noted that there is no cross-examination of this witness as regards the notice given by him to the accused and as regards the response of the accused to the notice, which was recorded on the copy of the notice. The witness was only given some suggestions in his cross-examination which he denied.
36. As stated earlier, it is the case of the prosecution that the recovery was a chance recovery, wherein from the half pant of accused, a white colour DLSH010038712020 Page 26 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act polythene pouch containing smack/heroin was found and only thereafter, information was given at the PS to depute an IO to conduct further proceedings under NDPS Act. Therefore, as per the prosecution case, the contents of the white coloured polythene pouch were checked by PW3, before the IO/PW8 was deputed to conduct the investigation in the present case and as such, it was not possible to give notice u/s.50 NDPS Act, before the contents of the white coloured polythene pouch was checked by the police official. It is precisely for this reason, as pointed out by the Hon'ble Apex Court in the aforesaid judgments, that the requirement of Section 50 of NDPS Act is dispensed with in cases of chance recovery.
37. However, after the chance recovery, the bodily search of the accused was duly carried out upon giving him notice u/s.50 NDPS Act. Thus, as far as the bodily search of the accused is concerned, the investigating agency duly complied with Section 50 NDPS Act.
38. It was one of the arguments of the Ld. Defence Counsel that in the notice under section 50 NDPS Act, the word "nearest" is not mentioned and as such there is failure to comply with section 50 NDPS Act. In this regard Ld. Counsel relied upon judgment titled as Arisa Begum Vs. State (Crl. Appeal No.3/2001 dtd.12.01.2009 of Hon'ble Delhi High Court), Union of India Vs. Shah Alam (Crl. NO.1158/2004 of the Hon'ble Apex Court) and Ashok Kumar Sharma Vs. State of Rajasthan 2013(2) SCC 67 and Bantu Vs State Govt of NCT of Delhi 2024:DHC:5006.
39. In the judgments titled Arisa Begum Vs. State (Crl. Appeal No.3/2001 dtd.12.01.2009 of Hon'ble Delhi High Court), Union of India Vs. Shah Alam (Crl. NO.1158/2004 of the Hon'ble Apex Court) and Ashok Kumar Sharma Vs. State of Rajasthan 2013(2) SCC 67, the court did DLSH010038712020 Page 27 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act not find any specific discussion regarding the legal consequences of the absence of the word 'nearest' in notice under section 50 of the NDPS Act.
40. In judgment of Bantu (supra), there is discussion on this aspect and the Hon'ble High Court relied upon another judgment of Delhi High Court titled as Mohd. Jabir Vs. State (NCT of Delhi)3 2023 SCC Online Del 1827. However, the judgment in Mohd Jabir (supra) was challenged in appeal before the Hon'ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd. Jabir {Crl. Appeal No.4921/2024 dated 02.12.2024}. In the said judgment Hon'ble Apex Court, observed as under:
"It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word "unnecessary delay"
and the exception carved in sub-section (5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word 'any' does not satisfy the mandate of the 'nearest' Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding."
(emphasis supplied) 3 Relevant pars of the judgment:
"42. In the present case, section 50 notice which was served upon the applicant reads as under: "You have the legal right to get yourself searched in the presence of any Gazetted Officer or Magistrate."
43. In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate
44. However, the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.
45. It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50. .........
47. As is clear from the above, the emphasis on the word "nearest" is important since it ensures independence. In deviating from the provisions as laid down in section 50, the IO practiced a third option of having the search conducted by someone who was part of the operation of this particular alleged drug seizure. The IO practiced a third option which is unknown to law."
DLSH010038712020 Page 28 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
41. The aforesaid deposition of PW8 is further supported by PW3 and PW4, as they testified that the bodily search of the accused was conducted only after notice u/s.50 NDPS Act was served upon the accused. It may further be noted that despite the refusal of the accused to get his bodily search conducted before a Gazetted Officer or a Magistrate, PW7 ACP Mukesh Tyagi, a gazetted officer of Delhi Police reached the spot and after introducing himself and apprising the accused of his legal rights, directed PW8 to conduct bodily search of the accused, which was conducted in his presence and no further contraband was recovered from the bodily search of the accused.
42. In view of the testimonies of above witnesses, namely, PW-3, PW4, PW7 and PW8, the prosecution has successfully proved on record that the accused was properly served with the notice under Section 50 of the NDPS Act before his bodily search and there was no violation of the said mandatory provision.
Discussion on the point of recovery of contraband
43. As per prosecution case, on 12.06.2020, while PW3 HC Prince was on patrolling duty in the area of PS Seema Puri on his bike, at about 6.05 p.m., he reached 70 Foota Road, A Block, New Seema Puri Park, where one person met him and told him that a boy is standing at the gate of park of A Block in suspicious condition. PW3 went to gate of park of A Block and saw the accused standing there and when he signalled the accused to come, the accused instead of coming to him, tried to escape, upon which he chased the accused and apprehended him. The accused was found in possession of one white colour polythene bag. When PW3 asked the accused as to why DLSH010038712020 Page 29 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act he tried to escape by running away from the spot and what he was carrying in the white colour polythene bag, the accused failed to give satisfactory answer, upon which PW3 opened the white colour polythene bag, in which he found powder of brownish colour. He smelled the same and found the same to be like that of smack. Thereafter, he called Duty Officer and informed him about apprehension of accused and recovery of smack like substance, w.r.t. which DD No.75A Ex. PW1/D was recorded by PW1 SI Okesh Pal, Duty Officer. The said DD was marked to PW8 SI Vinit Pratap Singh. Upon receiving the said DD, PW8 SI Vinit Pratap Singh, who was on patrolling duty along with PW4 HC Kuldeep, reached at the spot along with IO kit, weighing machine and field testing kit, where they found accused and Ct. Prince present. PW3 Ct. Prince handed the accused over to PW8 and also handed over to him the white colour polythene bag containing the smack like substance. The accused disclosed his name as Manish to PW8 and PW8 recorded statement of PW3, which is Ex. PW3/B and also requested 4-5 public persons to join investigation, but none agreed to join investigation and left without disclosing their names and addresses citing their personal excuses and no notice could be served upon them due to paucity of time. Upon the interrogation of accused, he disclosed that the said recovered substance was smack and when it was tested on field testing kit, it came positive for smack/ heroin. The substance was weighed on the weighing machine and was found to be 38 gms. PW8 thereafter conveyed the information to SHO and ACP. SHO instructed him to take legal action. PW8 apprised the accused about his legal rights and served upon him notice under section 50 of the NDPS Act. In the meanwhile, PW7 ACP Mukesh Tyagi also reached at the spot and in his presence, accused was again DLSH010038712020 Page 30 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act apprised about his legal rights and his bodily search was conducted, but no further contraband was recovered from his possession.
44. The recovered contraband in white polythene bag was weighed on the weighing scale and found to be 38 gms., out of which two samples of 5 gms each were taken out in transparent polythene bags and the same were marked as A1 and A2 and the remaining contraband was kept in a cloth pulanda and marked as A and all the three pulandas were sealed with the seal SK and seized vide seizure memo Ex. PW3/A, bearing signatures of accused, PW3 & PW4. The seal was handed over after used by PW8 to PW4 and PW8 also filled the FSL Form. PW8 on the statement of PW3 Ex. PW3/B prepared rukka Ex. PW8/B and handed over the same along with the three sealed parcels, carbon copy of seizure memo and the FSL Form to PW4 Ct. Kuldeep and instructed him to hand over the case property to SHO PS Seema Puri and the rukka to the Duty Officer.
45. PW3 Ct. Prince is the star witness of the prosecution as it is he who had apprehended the accused and had found in his possession a white colour polythene bag containing 38 grams of smack / heroin. The deposition of this witness as regard the chance recovery is as under :
"On 12.06.2020, I was posted as Ct. at PS Seemapuri. On that day I was on patrolling duty in the area of PS Seemapuri on bike. During patrolling at about 6.05 pm when I reached at 70 foota road A Block, New Seemapuri Park where one person met me and he told that one boy was standing on the gate of park of A Block in suspicion condition. I asked the said boy to come with me but he refused to accompany with me and left from there. I reached near the gate of park of A Block and I saw that one boy was standing there and I gave a signal and asked him to come but on seeing me, he tried to escape from there. I apprehended him after chasing and he was carrying one white colour polythene bag. I asked from him that why he was running away and what he was carrying but he did not give any satisfactory answer. I opened the said polythene bag and powder of brownish colour (matiala colour) was found in the said polythene bag. I smelled the same and the smell of said contraband was found to be like smack. Thereafter I called the duty officer and gave the said information to him."DLSH010038712020 Page 31 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
46. The witness was cross-examined on 29.01.2024 on this aspect, as under :
"On the day of incident, my duty hours were started from 08:00 AM, however, there was no ending time of the duty. I left for patrolling vide DD no. 25A dt. 12.06.2020. I was alone on patrolling duty. There was normal running traffic near the gate of park of A-block. I had not conveyed the secret information to any senior official at that time. It is wrong to suggest that I had not conveyed the secret information to any senior official at that time as no such incident took place.
It is correct that I had not made any public witness.
Q. Can you explain that what was the 'suspicion condition' of the accused? Ans. When I reached near accused, he got perplexed and tried to leave the said place.
I parked my bike at a distance of 20-25 meters away from the spot of apprehension of accused. The bike was government vehicle bearing registration no. DL-1SAF-2785 make Apache of color yellow. I have remained associated in investigation of 40-50 NDPS cases. The distance between the place of incident and PS Seemapuri is about 2.5-3 km. I had informed the DO on the landline number. I do not remember the said landline number. It is wrong to suggest that I can not tell the said landline number as no such incident took place.
......
There is a landmark near the spot i.e. 70 foota road, Police booth New Seemapuri.
Q. Can you tell by seeing the site plan now Ex.PW-3/DX where that landmark has been mentioned in the same?
Ans. On seeing the site plan witness submits that there is no mention of landmark i.e. 70 foota road, Police booth New Seemapuri.
I remained present at the spot for about 7 hours with the IO. I do not remember who had called the ACP at the spot, even I do not remember the name of ACP who came at the spot. It is wrong to suggest that I do not remember who called ACP at the spot and even the name of ACP who came at the spot as no such incident took place.
.......
I do not remember if I had told the IO in my statement Ex.PW-3/B that I apprehended the accused after chasing and he was carrying one white color polythene bag.
Confronted with the statement Ex.PW-3/B where it is written that on cursory search of accused, one white color polythene was recovered from left side pocket of his half pant. Vol. The polythene was recovered from the half pant of the accused and that is why I mentioned in my statement in the Court that he was carrying white color polythene."DLSH010038712020 Page 32 of 72 SC No.133/2020
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47. Two specific contradictions were pointed out by the ld counsel for accused in the deposition of PW3. Firstly, that PW3 in his examination-in-chief stated that when the accused was apprehended, he was carrying one white colour polythene bag, which was found containing a brownish colour powder, which is contrary to the statement u/s.161 Cr.P.C. of the said witness. The witness was also confronted with the said statement during his cross-examination. Secondly, that PW3 in his cross-examination disclosed about landmark near the spot i.e. 70 Foota Road, Police booth, New Seema Puri, Delhi, however, the said booth is not shown in the site plan Ex. PW4/1.
48. As regards the first contradiction it is noted that in the rukka Ex.PW3/B it is mentioned that after the accused was apprehended and his cursory search was conducted, from the left pocket of his nickar a white colour polythene tied with rubber band was found and upon opening the same it was found containing brownish colour (matiyala colour ) powder which smelled like smack. Thus, as per the rukka Ex.PW3/B the white polythene bag was recovered from the left pocket nicker, that the accused was wearing. However, PW3 in his examination in chief stated that "I apprehended him after chasing and he was carrying one white colour polythene bag". From the said deposition, it is not clear whether the accused was carrying the white colour polythene bag in his hand or whether he was carrying it in the pocket of his clothes.
49. However, during cross-examination, when the witness was confronted with statement Ex.PW3/B (rukka), he clarified by voluntarily deposing that the polythene was recovered from the half pant of the accused and that is why he mentioned before the court that the accused was carrying white colour polythene. Therefore, the deposition made by the witness in his DLSH010038712020 Page 33 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act examination in chief cannot be said to be contrary to the contents of rukka Ex.PW3/B which was recorded by PW8 on his statement, though, it may be said that the examination in chief did not spell out in detail as to in what manner the accused was carrying the white colour polythene. A simple question regarding the manner in which the accused was carrying the white polythene in examination in chief could have clarified the situation in examination-in-chief, which was finally clarified, when this issue was taken up with the witness during his cross-examination. It may be noted that the witness at that stage categorically clarified that "The polythene was recovered from the half pant of the accused and that is why I mentioned in my statement in the court that he was carrying white colour polythene".
50. Coming to the second leg of the argument raised by the ld. Defence counsel, it is found that PW3 in his cross-examination stated that there is landmark near the spot where the recovery took place i.e. 70 foota road and police booth, New Seemapuri. The witness upon seeing the site plan Ex.PW3/DX (also Ex.PW4/1) stated that the said landmark i.e. police booth on 70 foota road was not shown in the site plan. It may be noted that in the site plan three roads have been shown of which one is mentioned as 70 foota road and another one as 64 foota road. The site plan corroborates the deposition of PW3 as it shows 70 foota road adjacent to the park and the spot where the accused was apprehended. It is true that the police booth New Seemapuri is not shown in site plan, but that by itself does not mean that the site plan is incorrect. It may be noted that there may be several important landmarks near the spot but it is not the requirement of law that all those landmarks need to be shown or represented in the site plan. In the opinion of the court, the site plan duly represents the spot where the accused was DLSH010038712020 Page 34 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act apprehended, and the recovery was made. For reference the said site plan is reproduced as under : -
51. Perusal of cross-examination of PW3 reveals that nothing material has come in the same so as to doubt the deposition of PW3 as regards the alleged recovery. The witness withstood the rigors of lengthy cross-examination and corroborated material particulars regarding the recovery of contraband from the accused.
52. The deposition of PW3 is corroborated by the contents of DD No.75A Ex.PW1/D wherein it is mentioned that during patrolling he apprehended the accused near the gate of A Block and accused was found to be in possession of smack like powder. The time on this DD entry is 06:06:17 pm which is in line with deposition of PW3 who stated that he reached at the spot at about 6.05 pm. The testimony of PW3 is further corroborated by PW4 and PW8 in their depositions, as the said witnesses reached the spot DLSH010038712020 Page 35 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act upon receiving DD No.75A Ex.PW1/D, where they found the accused and PW1 present.
53. The said two witnesses were also cross-examined, but there is nothing in their cross-examination, which may create a doubt as regards the recovery alleged to have been made from the accused.
54. It may be pointed out that a suggestion was given to PW8 that the accused was lifted from his house, which he denied as "It is wrong to suggest that the accused has been lifted from his house and was falsely implicated in the present case". The said defence taken during the cross-examination of PW8 on 11.12.2024 is contrary to the defence taken by the accused in answer to questions no.18 in statement u/s.313 Cr.P.C4. as the accused stated that "It is a false case. I am innocent. I have been falsely implicated in the present case. On 12.06.2020, I was going from the house of my Bua at Shahdara towards my house at Gandhi Nagar, Ghaziabad and when I reached Bhopora Chowk, at about 2.30 - 3.00 p.m., my auto was got stopped by police officials. Two police officials sat in the said auto with me and asked the auto driver to take the auto to PS Seema Puri. Thereafter, I was falsely implicated in this case. My signatures were obtained on certain blank papers. My family members were also not informed that I was taken in custody." It shows that the accused took contradictory defence at different stages of trial only to save himself from conviction. However, none of the said defences could be established by the accused either through the cross- examination of prosecution witnesses, or through the testimony of defence witnesses.
4Recorded on 10.1.2025.
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55. The testimonies of PW3, PW4 and PW8 is further corroborated by the testimony of PW7 ACP Mukesh Tyagi, who categorically deposed that after receiving information from PW8, he reached at gate of A-Block Park, New Seemapuri, where accused was present and his bodily search was conducted in presence of this witness. Therefore, the defence of the accused that he was lifted from his house or was falsely implicated in this case after being stopped at Bhopara Chowk and taken in auto to PS Seemapuri, is found to be devoid of merits and seems to be concocted by the accused only to save himself from the present case.
56. From the testimony of the aforesaid witnesses, it stands proved that on 12.06.2020, a white polythene pouch containing brownish colour powder, which upon testing at the spot with the field testing kit was positive for heroin, was recovered from accused, weighing in total 38 gms.
57. The accused in his statement recorded under Section 313 Cr.P.C. claimed to be innocent and alleged that he was falsely implicated, however, he did not mention any reason whatsoever for his false implication. No suggestion in this regard was given to any of the witnesses during their cross- examination. The accused neither in his statement u/s.313 Cr.P.C. nor in any of the suggestions given to the prosecution witnesses, claimed animosity or acquaintance with the police officials, hence there was no ground or reason for the police to falsely implicate him in the present case. Furthermore, till date the accused has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
58. In view of the aforesaid discussions, it is held that prosecution has successfully proved that the accused was apprehended by PW2, PW3 and DLSH010038712020 Page 37 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act PW6 alongwith white colour polythene pouch in pocket of his half pant/nicker containing total 38 gms of heroin on 12.06.2020 at 6.00 p.m. Discussion on non-joining of the public witnesses
59. 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.
60. 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 especially PW8 Vinay Pratap Singh, IO that he made sincere efforts to join public witnesses, but none agreed.
61. In this regard, PW8 deposed that after reaching the spot along with PW4, where accused and PW3 HC Prince were already present, he asked 4-5 passersby to join the investigation, as under :
"On 12.06.2020, I was posted as SI at PS Seemapuri. On that day on receiving DD No.75A, I along with Ct. Kuldeep reached at the spot i.e. A Block Park Gate, New Seemapuri Delhi along with IO kit including weighing machine, field testing kit. The name of the said who was apprehended by Ct. Prince revealed as Manish. Ct. Prince handed over the accused and the recovered case property i.e. polythene bag to me. I recorded statement of Ct. Prince. I requested 4-5 public persons to join the investigation but none agreed to join the investigation and left without disclosing their names and addresses while seeking their personal excuses.
No notice could be served upon them due to paucity of time. I interrogated the said accused and he confessed his crime by saying that the said contraband is smack. I checked the said contraband with the help of field testing kit and it was found as smack. I weighed the said contraband along with polythene with the help of weighing machine and it was found 38 grams."DLSH010038712020 Page 38 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
62. The witness was cross-examined on this aspect and he stated that : "It is wrong to suggest that nothing was recovered from the possession of accused and for the said reason, no public person was joined as a witness."
63. From the aforesaid examination and cross-examination of the witness, it is clear that PW8 made efforts, upon reaching at the spot, to join public witnesses, but none agreed. The deposition of this witness as regards repeated efforts made by him to join the public witnesses is corroborated by PW35 and PW4, who also categorically testified in their testimonies that PW8 had made efforts to join public witnesses.
64. PW4 in his testimony stated that PW8 asked 4-5 public persons to join investigation before reaching at the spot, which is contrary to the contents of Tehrir Ex. PW8/B and deposition of PW3 and PW8. This contradiction was pointed out by Ld. Counsel for accused during final arguments. The relevant portion of deposition of PW4 is as under :
"There Ct. Prince met us with the apprehended accused Manish S/o Subhash (accused is exempted for today only and his identity is not disputed by his Counsel) who was having a white polythene bag. On interrogation by IO Vineet Pratap, accused Manish informed to him that the said polythene contained Smack.
Before reaching at the spot, IO had asked 4-5 public persons to join the investigation but none has agreed and left away by giving there excuses without disclosing their names and addresses."
65. From the above deposition of PW4, it seems that after deposing that he reached the spot with PW8 and there PW3 produced the accused, PW4 deposed that before reaching the spot, PW8 / IO made efforts to join public witnesses. The said contradiction may be due to the reason that this witness was examined more than three years after the incident on 29.01.2024.
5In cross-examination : "When SI Vineet came at the spot, 4-5 public persons were available there. SI Vineet asked orally those 4-5 public persons to join the investigation but none had agreed. IO conducted the proceedings at the spot by sitting for some time and by standing for some time."
DLSH010038712020 Page 39 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act However, despite the contradiction, one thing is clear that the IO made efforts to join public witnesses, as stated by PW3, PW4 and PW8.
66. Thus, the non-joining of independent witnesses despite efforts having been made in this regard, is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
67. Further, 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, AIRONLINE 2012 SC 728 decided on 19.10.12, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."DLSH010038712020 Page 40 of 72 SC No.133/2020
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68. 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'.
69. It is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, 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, Hon'ble 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."
70. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non joining of independent witness as firstly it is clear that sufficient efforts were made by the PW-8 SI Vinay Pratap 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.
DLSH010038712020 Page 41 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses. Discussion on the point of compliance of Section 55 of NDPS Act
71. Section 55 NDPS Act reads as under:
55. Police to take charge of articles seized and delivered.--
An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
72. As per the prosecution case, after the recovery of 38 gms heroin was effected from the accused, two samples of 5 gm each were drawn from the same, which were marked as A1 and A2 and the remaining contraband was kept in another cloth pulanda marked as Mark A and all the three pulandas were sealed with the seal of SK. Seizure memo Ex. PW3/A was prepared. The seal was handed over to PW4 HC Kuldeep on 01.03.2020 and the case property alongwith the original seizure memo and the FSL Form was also handed over to him and he took the same to the PS and produced it before Insp. Harish Kumar SHO PS Seemapuri. Insp. Harish Kumar could not be examined because of his demise and was dropped from the list of witnesses on 05.04.2024. PW4 categorically deposed in his examination-in-chief that the three sealed pulandas Mark A, A1 and A2 were taken by him to the PS and handed over to Insp. Harish Kumar, SHO PS Seemapuri. PW2 HC Amarpal, MHCM also deposed that on 12.06.2020, at 10.15 p.m., SHO Insp. Harish Kumar called him in his office and handed over to him 3 sealed pulandas Mark A, A1 & A2, bearing the seals of HK and SK and he deposited the same in the Malkhana vide entry at sl. no.804/3429 in register no.19 Ex. PW2/A. DLSH010038712020 Page 42 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
73. It may be noted that the case property was also produced during the testimony of PW3 and opened in the Court and parcel Mark A was found bearing the seal of SK and HK. The observation of the Court at the time of opening the case property during the testimony of PW3 is relevant to establish that parcel Mark A was also sealed with the seal of SK and HK which remained intact throughout the proceedings till the time the Parcel A was opened in the Court. The said portion of the deposition of PW3 containing Court observation as regards parcel Mark A is reproduced as under :
"At this stage MHCM has produced one white colour cloth pullanda bearing the the seal with the seal of HK and SK with case particulars. Seals are broken and one white colour polythene was found in the said cloth pullanda. The said white colour polythene was opened and containing one transparent small polythene bag (pouch) containing brownish colour powder. The same is shown to the witness. After seeing the same, the witness states that the above mentioned contraband i.e. smack was recovered from the possession of accused. The same is Ex.P-4 (colly.)."
74. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of SK by PW8 SI Vinay Pratap Singh was further sealed at the PS by SHO Insp. Harish Kumar with the seal of HK and both seals were found intact by Ms. Kavita Goel, Asstt. Director (Chemistry) FSL on the two samples Mark A1 and A2, which she analysed in terms of report Ex. PX and the remaining parcel Mark A was found intact bearing the seal of SK and HK, when the same was produced before the Court and exhibited as Ex. P4 on 31.10.2023.
Whether recovered substance is heroin?
75. As stated earlier, 38 gms of brown colour substance was recovered from the accused, out of which two samples of 5 gms each were drawn at the spot itself and sent to FSL with the seal of SK and counter seal of HK. The said DLSH010038712020 Page 43 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act substance was also tested at the spot and found to be positive for heroin, as deposed by PW86. However, expert analysis on the samples was carried out at FSL by Ms. Kavita Goel, Asstt. Director (Chemistry) FSL Rohini. As per the FSL result Ex. PX7, two sealed parcels Mark A1 and A2 bearing the seal of SK and HK were analysed and were found containing brown colour coarse powdery material, which upon examination, were found to contain 'Acetaminophen', 'Caffeine'. 'Phenobarbital', 'Dextromethorphan', 'Morphine', 'Acetylcodeine '6-Monoacetylmorphine' & 'Trimethoprim'.
76. The result of the examination report Ex. PX is reproduced as under :
"On Chemical, TLC & GC-MS examination, exhibits 'Al' & 'A2' were found to contain Acetaminophen', 'Caffeine'. 'Phenobarbital', 'Dextromethorphan', 'Morphine', 'Acetylcodeine" '6-Monoacetylmorphine' & 'Trimethoprim'."
77. There is nothing to doubt the FSL Result Ex. PX, which was prepared by Assistant Director (Chemistry) FSL, who is a Senior Officer at FSL Rohini and has no reason or motive to give a false or manipulated report.
78. However, as per the FSL result, 'diacetylmorphine' was not detected in the recovered substance. The expert at FSL detected 'Acetaminophen', 'Caffeine'. 'Phenobarbital', 'Dextromethorphan', 'Morphine', 'Acetylcodeine '6-Monoacetylmorphine' & 'Trimethoprim' in the samples analysed, but could not detect 'diacetylmorphine'. As per notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 the chemical name of 'heroin' is 'diacetylmorphine'. However, the said chemical could not be detected by the expert at FSL during analysis of the samples of the recovered substance.
6In examination-in-chief : "I checked the said contraband with the help of field testing kit and it was found as smack. I weighed the said contraband along with polythene with the help of weighing machine and it was found 38 grams."
7Admitted by accused.
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79. Though, this argument was not made, however, in view of the FSL result it could be one of the arguments of the defence that sample sent to the FSL was not found positive for Diacetylmorphine (Heroin) and that 6- Monoacetylemorphine is neither a Narcotics Drug nor a Psychotropic Substance under the NDPS Act, 1985.
80. A similar argument came up for consideration before Hon'ble Delhi High Court in Sheikh Anwar vs. State 2022 DHC 3071, wherein the counsel for the convict submitted before the court as under:
"8. During the course of the submissions made on 08.08.2022 during the hearing of the appeal, the learned counsel for the appellant however submitted that apart from the contention that the appellant as per the FSL report was not found to be in possession of the 1.5 Kgs of Diacetyle Morphine (Heroin) in view of the FSL report dated 28.12.2011 which as per the chemical analysis, TLC, GC, GC-MS & HPTLC examination had opined that Exhibit A, the cloth parcel sealed with seals of "CRM" and "DST" sent by the SHO Crime Branch vide letter No. 873/SHO/Crime Branch dated 29.08.2011 in relation to FIR No. 217/2011 dated 19.08.2011 which contained a brown colored powder with granules kept inside a polythene weighed approximately 5.48 Gms. which polythene was found to contain paracetamol, caffeine and Monoacetyle Morphine, and it was thus submitted on behalf of the appellant that the prosecution version that the appellant was in possession of 1.5 Kgs. of heroin i.e., Diacetyle Morphine was not established, and that thus, the appellant be released on the period of detention already undergone by him, in as much as, he cannot be held to have been rightly convicted for possession of a commercial quantity of heroin. In view of this submission made on behalf of the appellant, it is only this contention raised on behalf of the appellant that is being taken up for consideration."
81. The Hon'ble Court while upholding the conviction dealt with the said argument as under:
"18. As already observed hereinabove the factum that over a period of time Diacetyle Morphine converts into Monoacetyle Morphine and Monoacetyle Morphine converts into Morphine, and that, depending on the environmental conditions like moisture in the environment and in the sample, the Diacetyle Morphine can convert into Monoacetyle Morphine and Morphine by the process of hydrolysis and that Diacetyle Morphine and Monoacetyle Morphine are DLSH010038712020 Page 45 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act synthesized products of Morphine, which Morphine is also listed at Serial No. 77 of the table to Section 2 of the NDPS Act, 1985 in which the commercial quantity is stipulated as being 250 Gms., coupled with the factum that even qua heroin with its chemical name of Diacetyle Morphine, the quantity amounting to 250 Gms. is a commercial quantity with there being chemical changes which take place in the Diacetyle Morphine or conversion thereof into Monoacetyle Morphine and vice versa, coupled with the factum that the prosecution version is categorical as per the Special Report under Section 57 of the NDPS Act, 1985 dated 20.08.2011 that on checking of the transparent polythene tied with rubber band and containing Matiyala coloured powder in it which had been recovered from the appellant, it was found on checking with the field testing kit to be heroin (i.e. Diacetyle Morphine), with the aspect of challenge to recovery of the date of the offence from the appellant not sought to be urged during the course of the arguments in the instant appeal, the conviction of the appellant for possession of 1.5 Kgs. of heroin, a commercial quantity, to which the provisions of Section 21(c) of the NDPS Act, 1985 apply,- has to be sustained and is sustained, even though vide the impugned order on sentence dated 15.09.2016, there appears to be a typographical error sentencing the convict under Section 20(c) of the said enactment which provision relates to possession of cannabis and not a manufactured drug and its preparations."
82. As observed in the aforesaid judgment over a period of time Diacetyle Morphine converts into Monoacetylemorphine and Monoacetylemorphine converts into Morphine, and that, depending on the environmental conditions like moisture in the environment and in the sample, the Diacetyle Morphine can convert into Monoacetylemorphine and Morphine by the process of hydrolysis. Diacetylmorphine and Monoacetylmorphine are synthesized products of Morphine, which Morphine is also listed at Serial No. 77 of the table to Section 2 of the NDPS Act, 1985 in which the small quantity is stipulated as 5 gms. Even qua heroin (with its chemical name of Diacetyle Morphine), the quantity amounting to 5 gms. is small quantity. These facts coupled with the fact that on checking of the transparent polythene tied with rubber band and containing matiyala/brown coloured powder in it which had been recovered from the appellant, it was found on DLSH010038712020 Page 46 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act checking with the field testing kit to be heroin (i.e. Diacetylmorphine), it stands proved that the accused was found in possession of intermediate quantity of manufactured drug as defined in Section 2 (xi) of NDPS Act.
83. In support of the aforesaid observation, the Court further relies upon the following excerpt from the 26th Edition of Medical Jurisprudence and Toxicology by Modi8:
"Methods of preparation of Heroin.-Morphine isolated from the opium is refluxed with either acetic anhydride or acetyl chloride. Reaction proceeds with the formation of 3-monoacetylmorphine and subsequently 3, 6- diacetylmorphine (heroin). Moist or contaminated samples of heroin may also contain 6-monoacetylmorphine and morphine.
Traces of chloroheroin can be formed during the reaction of morphine with acetyl chloride. Possibility of preparation of crude heroin by reacting dried opium with acetic anhydride cannot be ruled out in clandestine laboratories. The purpose is to convert the morphine to diacetylmorphine. The morphine isolated from the opium or opium containing morphine forms the starting material. Traffickers manipulate with this heroin to enhance its bulk with an intention to earn more money."
84. In UNDOC publication on "Profiling of Heroin and Cocaine" in Chapter 3 "Methods for Impurity Profiling"9, discusses 'Hydrolysis of Heroin' in para 3.2.1 as follows:
"3.2.1. Hydrolysis of heroin Post-processing hydrolysis can occur readily for those samples containing non- bound water or excess acid. In those cases where both the alkaloidal content and the extent of hydrolysis are significant, the sample may become dark brown (almost black) and will finally become tar-like. In less severe cases, hydrolysis may not be obvious until the impurity profile data have been examined. An 06- monoacetylmorphine (06MAM) content greater than 10% relative to the heroin is an indication that post-processing hydrolysis may have occurred in the sample.8
Section 2: TOXICOLOGY Page 218. (Publisher: LexisNexis) 9 UNITED NATIONS OFFICE ON DRUGS AND CRIME: "Recommended Methods for the PROFILING OF HEROIN AND COCAINE (Revised and updated)" MANUAL FOR USE BY NATIONAL DRUG ANALYSIS LABORATORIE.DLSH010038712020 Page 47 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act Other indicators are very low levels of 03-monoacelylmorphine (03MAM) and relatively high morphine content (1 % relative to the heroin). In some cases both the morphine and the 06MAM can be present at a higher level than the heroin and, infrequently, even a significant amount of codeine. However, the analyst should be careful when making this assessment as a dark brown (black) tar sample containing high 06MAM can arise from causes other than post-processing hydrolysis. For instance, if a dark brown, tar-like sample contains high levels of 06MAM along with significant quantities of 03MAM and little or no codeine, then the sample could well have originated from a 'homebake' process. Also the tar- like dark brown heroin samples that originate in Mexico typically have a processing-related 06MAM content higher than 6%, with 12% or greater (relative to heroin) not being at all uncommon.
It is thus not always a simple matter to distinguish between heroin samples that have undergone significant post-processing hydrolysis and those samples where there was significant hydrolysis during processing. Not surprisingly, the task of comparing two samples where one has undergone significant post-process hydrolysis versus one that has not undergone any significant hydrolysis, although not impossible, is very much more difficult....
Over time a property prepared and stored heroin hydrochloride (or for that matter cocaine hydrochloride) will not degrade in any significant manner. In this context 'properly prepared and stored' means fully hydrated 99.5% pure hydrochloride salt containing no unbound water or acid and stored in the dark at ambient temperature in a tightly sealed container. Obviously there are few properly prepared and stored drug samples in the illicit marketplace. As a result, some degradation over time is common for illicitly produced heroin, in particular when it is the free base, as the base is less stable than the hydrochloride salt. However, for high-purity illicit heroin samples the rate of degradation (hydrolysis) is so slow that it can be difficult to measure year-to-year.
The analyst does need to exercise care in order to avoid hydrolysis of the heroin when performing impurity profiling analysis. For instance, the hydrolysis rate for heroin is markedly increased at extremes of pH (e.g. pH (3 and 10) and as a result such routine tasks as liquid-liquid extractions need to be performed carefully. Gas chromatography (GC) is an analytical tool frequently used in impurity profiling and it can also result in hydrolysis of heroin and/or the transesterification of co- injection compounds. These problems are not limited to heroin, since most esters are more or less subject to these reactions, as is evidenced by the well known formation of 06MAM when morphine and aspirin are dissolved in methanol and co-injected into a gas chromatograph. It is for these reasons that GC methods DLSH010038712020 Page 48 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act utilizing direct dissolution into an injection solvent may not provide as rigorous a result as do impurity profiling techniques that incorporate a derivatization. The previous two paragraphs apply equally to illicit cocaine.
GC analysis of heroin without the use of a derivatization step will result in the formation of three injection port artefacts. One of these compounds has not been identified (MW = 381) while the Ors. are 15, 16-didehydroheroin (34) and 06 monoacetylmorphine. An injection of a heroin sample, in the absence of a derivatization step, will nearly always result in the production of some quantity of 06-monoacetylmorphine in the injection port, where the amount so produced is a function of injection port temperature and the quantity of activation sites within the injection port. The unknown compound and 15, 16-didehydroheroin are usually observed at trace levels ( 0.2% relative to heroin) and chromatograph immediately after heroin on a 100% methylsilicone column. The presence of either of these two compounds at a level greater than 0.2% relative to heroin may suggest the need for injection port maintenance."
In view of the aforesaid judgment and literature available on the subject, it is held that the accused was found in possession of intermediate quantity of manufactured drug as defined in Section 2 (xi) of NDPS Act. Compliance under section 52A NDPS Act
85. Ld. Counsel for accused had submitted that as the sampling proceedings in the present case were not conducted by the Magistrate u/s 52A NDPS Act, hence as per judgment of Mina Vs. State of UP (SLP Crl. 3166/2023 of Hon'ble Apex Court), Mangi Lal Vs. State of MP (Crl. Appeal No.1651/2023 of Hon'ble Apex Court), Union of India Vs. Mohan Lal (2016 (3) SCC 379), Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) and Sobraj Vs. State, 2024 DHC 5099, the trial stand vitiated, and the accused is entitled to acquittal.
86. Admittedly, sampling in the present case was done at the spot and not before the Magistrate as per section 52A NDPS Act. The question before the court is whether the entire trial stand vitiated in view of the said non-compliance?
DLSH010038712020 Page 49 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
87. In Mohan Lal (supra), Hon'ble Apex Court while discussing the ambit and purport of section 52 A NDPS Act, observed as under:-
"16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. ........
19. [...] There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and DLSH010038712020 Page 50 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."
88. In Yusuf @ Asif (supra), Hon'ble Apex Court while setting aside the conviction of appellants therein, relied upon Mohan Lal (supra) and observed as under
"10. [...] it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act. xxx xxx xxx
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
xxx xxx xxx
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest 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 DLSH010038712020 Page 51 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act 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."
89. In a recent judgment titled as Narcotics Control Bureau Vs. Kashif 2024 INSC 104510, discussed the effect of non-compliance of section 52A NDPS Act on the outcome of trial and summarized the observations in para 39 as under:
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the 10 Judgment dated 20 December 2024.
DLSH010038712020 Page 52 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act 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."
90. In a very recent judgment of Bharat Aambale (supra), Hon'ble Apex Court answered the question whether non-compliance of section 52A NDPS Act leads to automatic acquittal. This was the only ground on which the conviction upheld by Hon'ble High Court was under challenged before the Apex court. Relevant paras indicating the issue directly before the Hon'ble Court are as under:
"3. The only contention raised before us by the learned counsel appearing for the appellant herein is that the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS Act.
4. The learned counsel appearing for the appellant placed strong reliance on the decision of this Court rendered in the case of Union of India v. Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good his submission that non- compliance of Section 52A of the NDPS Act along with the relevant rules, would vitiate the entire trial and the conviction."
91. Hon'ble Apex Court discussed at length Mohan Lal (supra), Yusuf @ Asif (supra) and several other judgments and discussed the outcome thereof in the following paras:
"24.What is discernible from the various decisions referred to by us, is that mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not by itself render the trial vitiated or into an automatic acquittal. In all instances where this Court set-aside the order of conviction, it did so not solely for the reason that there was a violation of Section 52A but because of and on the strength of the other discrepancies or shortcomings in the prosecution's case that rendered it doubtful.
26.Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, DLSH010038712020 Page 53 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place.
27.In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
30.Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its DLSH010038712020 Page 54 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of bringing clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or DLSH010038712020 Page 55 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc.
31.At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved.
32.Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra).
33.Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking.
92. The Hon'ble Court finally summarized the law on the subject in para 50 as under:
DLSH010038712020 Page 56 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act "50.We summarize our final conclusion as under: -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done.
Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said DLSH010038712020 Page 57 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt." (emphasis supplied)
93. Though, in the present case there is no compliance of section 52A NDPS Act, as the sampling proceedings were done by the IO at the spot, however, in view of the judgment in Kashif (supra) and Bhart Ambale (supra), the said fact by itself does not vitiate the trial. As held by the Hon'ble Court in absence of compliance u/s 52A NDPS Act the onus is upon the prosecution to prove by cogent evidence that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
94. Moreover, as per FSL report Ex. PX (admitted by accused on 13.09.2024), two parcels Mark A1 and A2 were received at FSL and were examined by Ms. Kavita Goel, Asstt. Dirctor (Chemistry) FSL Rohini. Parcel Mark A1 DLSH010038712020 Page 58 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act was found bearing five seals of SK and two seals of HK. Parcel Mark A2 was also found bearing five seals of SK and two seals of HK Thus, as per the FSL result Ex. PX, the samples of the case property (two pulandas) which were sealed at the spot with the seal of SK and were counter sealed by SHO Insp. Harish Kumar SHO with his seal of HK, were received in the same condition with all the seals intact in the FSL on 08.07.2020.
95. It may be noted that the case property in original as primary evidence was produced during the testimony of PW3 and opened in the Court. The samples Mark A1 and A2, were found to be bearing the seal of FSL KG DELHI, whereas Parcel Mark A was found bearing the seals of SK and HK. The observation of the Court at the time of opening the case property during the testimony of PW3 is relevant to establish that the seal of SK and HK remained intact throughout the proceedings till the time the samples were analysed by the FSL and the remaining contraband in pulanda / Parcel A was opened in the Court. The said portion of the testimony is reproduced as under:
"One yellow colour envelope which is marked as A-1 bearing case particular is in sealed condition bearing the seal of FSL KG DELHI with case particulars. Seals are broken and the said envelope is opened and found containing one white cloth pullanda and partially it was torn and opened containing one small polythene containing brownish powd found. The same is shown to the witness. After seeing the same, the witness states that it was the samples which was taken from the smack which was recovered from the possession of accused. The same is Ex.P-2.
One yellow colour envelope which is marked as A-2 bearing case particular is in sealed condition bearing the seal of FSL KG DELHI with case particulars. Seals are broken and the said envelope is opened and found containing one white cloth pullanda and partially it was torn and opened containing one small polythene containing brownish powder is found. The same is shown to the witness. After seeing the same, the DLSH010038712020 Page 59 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act witness states that it was the samples which was taken from the smack which was recovered from the possession of accused. The same is Ex.P-3.
At this stage MHCM has produced one white colour cloth pullanda bearing the the seal with the seal of HK and SK with case particulars. Seals are broken and one white colour polythene was found in the said cloth pullanda. The said white colour polythene was opened and containing one transparent small polythene bag (pouch) containing brownish colour powder. The same is shown to the witness. After seeing the same, the witness states that the above mentioned contraband i.e. smack was recovered from the possession of accused. The same is Ex.P- 4 (colly.)."
96. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of SK by PW8 SI Vinay Pratap Singh and was further sealed at the PS by SHO Insp. Harish Kumar with the seal of HK was found intact by Ms. Kavita Goel, Asstt. Director (Chemistry) FSL on the two samples Mark A1 and A2, which she analysed in terms of report Ex. PX and the remaining pulanda / Parcel was found intact bearing the seal of SK and HK, when the same was produced before the Court and exhibited as Ex. P4 on 31.10.2023.
97. Accordingly, the prosecution proved beyond reasonable doubt that non-
compliance of section 52A NDPS Act does not affect its case against the accused, as the case property seized at the spot was produced as primary evidence before the court with the seals intact and while the said case property remained in police custody, it was not tampered with. Seal and case property handed over to the same official
98. Though, no submission was made during the final arguments on the point that the IO in the present case had handed over the seal and the case property to the same police official, after seizing the case property, to be taken to the DLSH010038712020 Page 60 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act PS, however, the same needs to be discussed, so as to see whether the integrity of the case property was maintained from the time of its seizure till the time the samples were examined by FSL and till the time the case property was produced before the Court.
99. As per the rukka, contents of FIR and even the depositions of the witnesses, the case property containing three pulandas i.e. Mark A and samples Mark A1 and A2, were sealed with the seal of SK by Investigating Officer (PW8 SI Vineet Pratap Singh) and the seal after use was handed over to PW4 HC Kuldeep. The three sealed pullanadas were also handed over to PW4 to be taken to the police station. Deposition of PW8 SI Vineet Pratap Singh in this regard is as under:
" I took two samples of 5-5 grams each from the said polythene bag and put the same in two transparent polythene and converted into cloth pullandas. I sealed the pullanda with the seal of SK. The same were marked as A1 and A2. The remaining contraband in the polythene bag was kept in a cloth pullanda, which was sealed with the seal of SK and the same was marked as A. The seizure memo of all the three pullandas is already Ex.PW3/A which bears my signature at point C. The seal was handed over to Ct. Kuldeep after use. I filled the FSL form.
I prepared the rukka Ex. PW8/B, bearing my signatures at point X. I handed over the original rukka and three sealed parcels, carbon copy of seizure memo of the case property and FSL form to Ct. Kuldeep. I instructed him to hand over the case property to SHO PS Seemapuri and the original rukka to the duty officer. Ct. Kuldeep left the spot."
100. Therefore, the seal of SK, after use by PW8, was handed over to PW4 HC Kuldeep and the sealed pullandas containing the recovered substance were also handed over to HC Kuldeep. The seal of SK as well as the sealed pullandas remained in possession of one police official i.e. HC Kuldeep, from the time he left the spot till the time he reached the police station and handed over the seal and pullanda to SHO Insp. Harish Kumar.
101. The very purpose of handing over the seal after the seizure of the case property to some other person, generally an independent witness, was DLSH010038712020 Page 61 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act defeated by this action of the Investigating Officer of handing over seal and case property to the same person.
102. The purpose to place a seal on the case property, when it is seized, is to ensure that what was seized at the spot was produced as it is, without any tampering, before the court. In the cases under NDPS Act, as the punishments prescribed are severe, therefore in section 55 there is an additional provision of placing of another seal by the SHO, on the case property. The object is to ensure that no doubt is left in the mind of the court that the case property, was or could have been, tampered with since the time it was seized and sealed at the spot. The placing of the seal as well as the case property in the hands of the same police official HC Kuldeep, who then took them all alone to the police station, has prima facie defeated the very purpose of sealing the case property at the spot.
103. It may be noted that when the case property was sealed and seized by PW8 SI Vineet Pratap Singh, one more police official was present at the spot i.e. PW3 HC Prince.
104. The question before the Court is whether this action of the Investigating Officer is by itself sufficient to doubt the integrity of the case property produced before the Court?
105. In the opinion of the Court, it is necessary to see that despite having the case property and the seal in his possession, whether PW4 had time to tamper with the case property while taking it from the spot to the PS. It is noted that as per the rukka Ex. PW1/B, the Tehrir was dispatched from the spot through PW4 at 9.15 p.m. to be taken to the PS and as per the contents of the FIR Ex. PW2/A, at 9.35 p.m., the Tehrir reached the PS. Therefore, the DLSH010038712020 Page 62 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act case property and the seal remained with PW4 for about 20 minutes when he took the case property from the spot to the Police Station.
106. It is noted that as per the FSL result Ex. PX, samples Mark A1 and A2 were each found bearing five seals of SK, which means that in total ten seals of SK were placed on the samples Mark A1 and A2, besides the seals placed on the remaining case property i.e. Mark A.
107. In view of the number of seals on the pullandas Mark A, A1 and A2, it is difficult for anyone to tamper with the case property, remove the seals, change the material contained in the pullanda and re-seal the pullandas with so many seals in a short span of 20 minutes, during which one is also required to travel from the spot to the PS which is around 2.5 - 3 kms from the Police Station11.
108. Therefore, despite the fact that the IO committed an error by placing the seal as well as the case property in the hands of the same police official (PW4) to be taken to the PS, still in view of the limited time available with the said police official (PW4) to tamper with the case property, it cannot be held that the case property could have been tampered with by the said police official in such short span of time. Accordingly, it is held that the integrity of the case property was maintained from the time the case property was seized at the spot till the time the samples were analysed at FSL and the pullanda Mark A was produced before the Court.
109. Full Bench of Hon'ble Apex Court in judgment Hema vs. State Through Inspector of Police, Madras (2013) 10 SCC 192, while discussing the effect of faulty investigation, observed as under:-
"18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, 11 As stated by PW3 in his cross-examination dated 29.01.2024 (first page).DLSH010038712020 Page 63 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
110. Similarly, in V.K. Mishra and another vs. State of Uttarakhand and another, (2015) 9 SCC 588, Hon'ble Apex Court observed as under:-
"34. Refuting the contention of the appellants on the lapses in the investigation and contending that any lapse in the investigation does not affect the core of the prosecution case, the respondents have placed reliance upon the judgment of this Court in State of Karnataka vs. K. Yarappa Reddy, (1999) 8 SCC 715, wherein this Court held as under: (SCC p. 720, para 19) "19......It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case...."
111. Therefore, the lapse on the part of IO of handing over the case property and the seal to the same police official by itself does not effect the core of the prosecution case, as the prosecution through the testimony of PW3, PW4, PW7 and PW8 have establsihed recovery made from the accused.
Videography and Photography not done during the proceedings and CCTV footage not produced
112. It was submitted that, though, the spot, where the accused persons were allegedly apprehended is a park where several public witnesses were DLSH010038712020 Page 64 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act available, but neither videography nor photography of the proceedings was conducted by the investigating agency.
113. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2020.
114. The question before the court is whether the deposition of recovery witnesses, who have corroborated each other in material particulars, can be overlooked or disbelieved, merely because they did not take photographs or video at the time of search and seizure?
115. Though the videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
116. This is neither any legal provision that makes it mandatory in each case that the recovery proceedings be videographed or photographed, nor there is any law of evidence, that in absence of videography / photography, the evidence of the prosecution witnesses cannot be relied upon. Accordingly, absence of videogrphy / photography of recovery proceedings by itself does not render the case of prosecution doubtful.
Discussion regarding other arguments / discrepancies :
117. One of the arguments of Ld. Counsel for the accused was that in statement u/s.161 Cr.P.C. of PW2, there is no mention of entry at sl. no.804/3429 in register no.19, vide which the case property was deposited in Malkhana on 12.06.2020, which fact was stated by PW2 for the first time in his examination-in-chief.
As far as this argument is concerned, it is noted that the copy of relevant page of register no.19 containing the entry at sl. no.804/3429 was filed alongwith the charge-sheet and merely because the number of the DLSH010038712020 Page 65 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act entry is not mentioned in the statement u/s.161 Cr.P.C. does not adversely effect the deposition of this witness. In the statement of this witness u/s.161 Cr.P.C., it is categorically mentioned that he had received the case property and deposited the same in the Malkhana w.r.t. which he made entry in register no.19. Thus, the deposition of PW2 is in line with the statement u/s.161 Cr.P.C. and it also cannot be said to be an improvement made subsequently.
118. Another argument raised by the Ld. Counsel is that the case property was deposited in Malkhana on 12.06.2020, but after a delay of about a month, the case property was sent to FSL on 08.07.2020, which is a clear contravention of standing order no. 1/88 dated 15.03.1988, as per which, the sample has to be dispatched to the FSL within 72 hours.
The delay pointed out by the Ld. Counsel is correct as per record, however it may be noted that the case property was seized on 12.06.2020 i.e. during the Covid-19 pandemic. It may be noted that a nationwide lockdown imposed on 24.03.2020, was partially lifted w.e.f. from 01.06.2020 and during Unlock 1.1 from 01.06.2020 to 30.06.2020, night curfew was still continuing and there were several restrictions still in place. The Unlock continued in steps from the month of June to November 2020. Keeping in mind these facts, the delay in sending the samples to the FSL stands explained in view of the unprecedented event of Covid pandemic.
119. It was also argued by the Ld. Counsel for accused that there is cutting in arrest memo and conviction slip with respect to the date of arrest, which is mentioned as '13' after the cutting. He also submitted that in the rukka, which was recorded by PW8, at the bottom of his signatures on the last page of the rukka, the PS is mentioned as 'Anand Vihar' and thereafter corrected DLSH010038712020 Page 66 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act and mentioned as 'Seema Puri', which fact is in line with the statement u/s.313 Cr.P.C. of the accused, as per which the accused was stopped by the police officials at Bhopra Chowk and thereafter, taken to PS Seema Puri.
It is correct that there is cutting / overwriting in the arrest memo and conviction slip and it seems that the date mentioned at 12.06.2020 is modified to 13.06.2020 by making correction from '12' to '13', but it may be due to the fact that the arrest was made at 12.30 a.m. of the intervening night of 12.06.2020 and 13.06.2020. It may be noted that on the arrest memo, under the signatures of IO, the date is correctly mentioned as 13.06.2020. Further, in the personal search memo also, the date is correctly mentioned as 13.06.2020. Further, it may be noted that though, in the rukka, SI Vineet Pratap Singh under his signatures had made cutting by striking 'Anand Vihar' and writing 'Seema Puri', however, that too is not of significance for the reason that PS Seema Puri is mentioned repeatedly in the rukka Ex. PW3/B and Tehrir Ex. PW1/B. These minor corrections do not in any way adversely affect the depositions of the witnesses or their veracity.
120. Lastly, it was submitted by Ld. Counsel for accused that PW4 in his deposition stated that the site plan Ex. PW4/1 was prepared at the instance of PW3 Ct. Prince, however the site plan does not bear the signatures of PW4.
As regards this argument, it is found that PW3 & PW8 in their examination-in-chief categorically stated that the site plan was prepared at the instance of PW3 and as a matter of record, the site plan Ex. PW4/1 (also Ex. PW3/DX), do not bear the signatures of PW3. In this regard, it may be pointed out that a site plan prepared by the IO at the instance of a witness DLSH010038712020 Page 67 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act is in the form of a statement u/s.161 Cr.P.C. and is, therefore, not required to be signed by the witness, categorically in view of Section 162 Cr.P.C.
In case titled as Tori Singh vs. The State of Uttar Pradesh (12.09.1961 - SC) : MANU/SC/0137/1961 - 1961 INSC 261, Full Bench of the Hon'ble Apex Court while dealing with the admissibility of a site plan prepared by Investigating Officer made the following observations in para-7:
"7. We are of opinion that neither of these arguments has any force. Let us first take the contention that it was most unlikely that deceased would be hit on that part of the body where the injury was actually received by him, if he was at the spot marked in Ex. Ka-9. The validity of this argument depends mainly on the spot which has been marked on the sketch-map Ex. Ka-9 as the place where the deceased received his injuries. In the first place, the map itself is not to scale but is merely a rough sketch and therefore one cannot postulate that the spot marked on the map is in exact relation to the platform. In the second place, the mark on the sketch-map was put by the Sub-Inspector who was obviously not an eye-witness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub- Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub- Inspector would be inadmissible in view of the clear provisions of section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.
We may in this connection refer to Bhagirathi Chowdhury v. King Emperor A. I. R. 1926 Cal. 550, where it was observed that placing of maps before the jury containing statements of witnesses or of information received by the investigation officer preparing the map from other persons was improper, and that the investigating officer who made a map in a criminal case ought not to put anything more than what he had seen himself. The same view was expressed by the Calcutta High Court again in Ibra Akanda v. Emperor AIR1944Cal339 , DLSH010038712020 Page 68 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act where it was held that any information derived from witnesses during police investigation, and recorded in the index to a map must be proved by the witnesses concerned and not by the investigation officer, and that if such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against section 162 of the Code of Criminal Procedure."
121. In another judgment Jagdish Narain vs. State of U.P. 1996 (8) SCC 199, Hon'ble Supreme Court held as under:-
"9. In responding to the next criticism of the trial Court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not detract from the truthfulness of the eye witnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion neither the criticism of the trial Court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872, the former's evidence would be admissible to corroborate the latter in accordance with Section 157 Cr.P.C (sic Evidence Act). However such a statement made to a Police Officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) Cr PC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eye witnesses it could not have been admitted in evidence being hit by Section 162 Cr.P.C. The law on this subject has been succinctly laid down by a three Judge Bench of this Court in Tori Singh vs. State of U.P., AIR 1962 SC
399..................."DLSH010038712020 Page 69 of 72 SC No.133/2020
State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act
122. In view of the aforesaid judgments, it is clear that the site plan Ex. PW4/1 prepared by PW8 at the instance of PW3 is nothing more than the statement of PW8 that PW3 had informed him that the recovery from the accused was made from the spot at point A in the site plan. Therefore, the said site plan is not required to be signed by PW3, in view of the specific bar contained in Section 162 Cr.P.C., and argument of the Ld. Counsel in this regard is found to be devoid of merits.
Presumption
123. Established jurisprudence dictates that, once possession is demonstrated, the burden of proof shifts to the individual asserting a lack of conscious possession or awareness of concealment. Section 35 of the Act codifies this principle through a statutory presumption in law. Similarly, Section 54 per- mits a presumption arising from the possession of illicit items. It is incum- bent upon the accused to substantiate his claim of either unawareness or absence of conscious possession of contraband. Hon'ble Apex Court in Mo- han Lal Vs. State of Rajasthan Crl. (2015) 6 SCC 222 dealt with this aspect in detail and held as under:
12. Coming to the context of Section 18 of the NDPS Act, it would have a ref-
erence to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "pos- session" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the exist-
ence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact.
DLSH010038712020 Page 70 of 72 SC No.133/2020State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
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16. From the aforesaid exposition of law it is quite vivid that the term "posses- sion" for the purpose of Section 18 of the NDPS Act could mean physical pos- session with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a rele- vant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person be- cause of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in pos- session because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to dis- covery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the DLSH010038712020 Page 71 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act contraband article and possession itself is an offence. In such a situation, the accused-Appellant cannot take the plea that he had committed an offence Under Section 9 of the Opium Act and not Under Section 18 of the NDPS Act."
124. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417, Hon'ble Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the ac- cused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Sec- tion 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same sat- isfactorily.
125. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Har-
yana (2002) 8 SCC 372, discussed the approach the court should take when analyzing the evidence, as under:
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a pro- cess of dispassionate judicial scrutiny adopting an objective and reasonable ap- preciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt"
126. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused beyond reasonable doubt. The presumption under sections 35 and 54 of the NDPS Act is applicable in this case against the accused, as the recovery of DLSH010038712020 Page 72 of 72 SC No.133/2020 State Vs. Manish FIR No.293/2020 PS : Seemapuri U/s.21(b) NDPS Act contraband has been established beyond reasonable doubt. The accused failed to rebut this presumption, leading to the conclusion that he was knowingly and deliberately in possession of an intermediate quantity of heroin. According to the presumption under section 54 of the NDPS Act, since the accused was found in possession of an intermediate quantity of heroin, he has committed an offense punishable under section 21(b) of the NDPS Act.
Conclusion
127. The prosecution proved beyond reasonable doubt that the accused was in possession of intermediate quantity of heroin / smack, as 38 gms of heroin was recovered from the possession of accused Manish. In view of the presumption under section 35 and 54 NDPS Act, it is presumed that the accused had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug / heroin without any authority or licence to be in possession of the same.
Order:
128. Accordingly, accused Manish is convicted for the offence punishable under Section 21(b) of the NDPS Act.
129. Convict is taken into custody.
130. Let previous involvement / conviction report of the convict be called for the next date.
131. Convict to be heard on sentence on 18.2.2025 at 2:00 p.m. Digitally signed Announced in the open Court SAURABH by SAURABH PARTAP PARTAP SINGH LALER SINGH on 17.02.2025 Date:
LALER 2025.02.17 14:59:32 +0530 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi