Delhi District Court
State vs Bhagat Singh on 28 February, 2025
State Vs Bhagat Singh & Anr.
IN THE COURT OF Ms. MANU GOEL KHARB
SPECIAL JUDGE (NDPS)-02: DWARKA COURTS
NEW DELHI
SC No. 05/2023
FIR No.803/2020
U/s. 20 (b) (ii) (B)/25/29 NDPS Act
PS: Chhawla
State vs. Bhagat Singh & Anr.
Date of Institution of case :-04.01.2023
Date of arguments :- 28.02.2025
Date on which Judgment pronounced :- 28.02.2025
JUDGMENT
CNR No. DLSW01-000037-2023 Date of commission of the 07.09.2020 offence Name of the complainant HC Ombir
Name and address of accused 1. Bhagat Singh S/o Sh.
Balwant Singh R/o House no. 40A, Roshan Vihar, Najafgarh, Delhi.
2.Amarjeet @ Kale S/o Sh.
Chand R/o House no. 55, Village New Roshanpura, Najafgarh, New Delhi.
Offence complained of U/s 20 (b) (ii) (B) read with Section 25 NDPS Act and 29 NDPS Act Plea of accused Pleaded not guilty and claimed trial Date of order 28.02.2025 Final order Acquitted SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 1 of 26 State Vs Bhagat Singh & Anr.
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 07.09.2020, on receipt of DD no. 110A, SI Subham Singh reached at main Paprawat Road near Suri Farm and found HC Ombir and Ct. Rakesh who had apprehended two persons along with a Scooty bearing no. DL9SAP 9188 and two polythenes (white and black colour) suspected to contain Ganja. SI Subham recorded the statement of HC Ombir and on the basis of his statement, FIR was registered against Bhagat Singh and Amarjeet @ Kale (hereinafter called the accused persons).
2. HC Ombir gave statement that on 07.09.2020, he along with Ct. Rakesh was on patrolling duty at beat no. 6.
At about 7:00 PM. while they were checking the vehicles, one secret informer met HC Ombir and informed that two boys who used to sell Ganja will come on grey colour Scooty along with Ganja from Jhatikara village and go to Najafgarh via main Paprawat Road and if raid is conducted, they can be apprehended along with ganja. HC Ombir asked 4-5 passerbys to join the proceedings but all refused to join. After sometime, two persons on one Scooty of grey colour came and on pointing out by secret informer, they were stopped. On inquiry, pillion rider disclosed his name as Bhagat Singh and the person who was driving the Scooty disclosed his name as Amarjeet @ Kale. The pillion rider was having one polythene which, SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 2 of 26 State Vs Bhagat Singh & Anr.
on checking, prima facie appeared to be Ganja. The person who was driving the Scooty tried to throw the polythene which he was hiding inside his shirt, but he was overpowered and the polythene was found to contain Ganja. Thereafter, at about 8:25 PM, SI Subham sent Ct. Rakesh to bring Drug checking kit, IO Kit and weighing machine. SI Subham asked 4-5 persons to join the proceeding but none agreed and left the place without disclosing their names and addresses. SI Subham introduced himself to accused persons and informed them about their legal right that their personal search can be conducted by a Gazetted Officer or Magistrate. Thereafter, notice under section 50 NDPS Act was served upon the accused persons but they refused to exercise their rights. Thereafter, SI Subham informed SHO/ACP regarding the recovery of Ganja. Thereafter, personal search of the accused persons was conducted by HC Ombir but nothing objectionable was found. In the meantime, at about 9:20 PM, Ct. Rakesh came to the spot along with Drug Testing Kit and Weighing Machine and on weighing, the weight of ganja found in the polythene recovered from accused Bhagat Singh was 01 Kg Ganja and from accused Amarjeet @ Kale 500 grams Ganja was recovered. Thereafter, both the polythenes were kept in separate plastic containers and sealed with the seal of 'SS'. Seal after use was handed over to Ct. Rakesh. In the meantime, SHO P.S. Chhawla reached the spot and SI Subham handed over copy of seizure memo and case property to SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 3 of 26 State Vs Bhagat Singh & Anr.
the SHO for compliance under section 55 NDPS Act. SHO counter sealed the case property with the seal of 'GR'. Thereafter, SI Subham prepared tehrir and handed over the same to Ct. Rakesh for registration of FIR.
3. After registration of FIR, IO/ SI Subham prepared site plan, recorded disclosure statement of the accused persons, arrested them and took their personal search. During investigation, sampling proceedings before the Ld. Magistrate under section 52A of NDPS Act were got done on 14.09.2020 and thereafter, samples were sent to FSL. After obtaining the result, charge-sheet was filed before the court.
4. Vide order dated 04.01.2023, court took cognizance of the offences u/s 20(b)(ii)(B)/25 and 29 NDPS Act and summoned both the accused persons. Thereafter, vide order dated 13.09.2023, charge for the offences punishable under Section 20(b)(ii)(B) NDPS Act read with section 25 NDPS Act and Section 29 of NDPS Act was framed against the accused persons Bhagat Singh and Amarjeet @ Kale to which both of them pleaded not guilty and claimed trial.
5. Prosecution examined 09 witnesses in support of its case.
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 4 of 266. PW1 SI Amit Punia is the last Investigating Officer to whom investigation of the present case was handed over. He prepared charge-sheet and filed the same in the court. PW7 SI Dhananjay Kumar and PW8 SI Rajesh remained the IO's prior to PW1 but no investigation was done by them in the present case.
7. PW2 is HC Rakesh Kumar. He deposed that on 07.09.2020, he along with PW3/HC Ombir were on patrolling duty and they were checking the vehicles at Paprawat Jhatikara Mor. At about 7:00 PM, one secret informer came and informed PW3/HC Ombir that two persons involved in selling Ganja will come on grey colour Scooty from the side of Jhatikara Mor and will go to Najafgarh through Paprawat Road. After few minutes, two persons came on a Scooty and at the instance of informer, both were apprehended. The person who was sitting as a pillion rider was having one white colour polythene and the person who was driving the Scooty tried to throw the polythene and on checking the same, the substance prima facie appeared to be Ganja. PW3/HC Ombir informed Duty Officer and thereafter SI Shubham reached at the spot and they handed over both the accused along with recovered polythene containing material like Ganja. PW6/SI Shubham requested some passer-by but all refused to join. PW6 sent PW2 to Narcotic Squad, Dwarka to bring kit and weighing machine etc. At around 9:20 PM, he returned to the spot along with drug testing kit and SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 5 of 26 State Vs Bhagat Singh & Anr.
weighing machine. Thereafter, PW6/SI Shubham checked both the polythenes and the same was found to be Ganja. The weight of the polythene recovered from pillion rider was found to be 1Kg and the weight of the polythene recovered from driver was found to be 500 grams. Thereafter, both the polythenes were kept in a container and sealed with the seal of 'SS'. PW6/SI Shubham informed the SHO, who came at the spot. Case property was seized vide seizure memos Ex.PW2/A1 and Ex.PW2/A2 and SHO put his seal of 'GR' on the case property. The seal after use was handed over to PW2. PW6/SI Shubham recorded statement of PW3/HC Ombir, prepared tehrir and handed over the same to PW2 for registration of case. PW6/SI Subham arrested the accused vide memos Ex.PW2/B1 and Ex.PW2/B2 and their personal search was conducted vide memos Ex.PW2/C1 and Ex.PW2/C2. PW6/SI Shubham recorded disclosure statement of accused Ex.PW2/D1 and Ex.PW2/D2, seized Scooty vide memo Ex.PW2/E, prepared site plan Ex.PW2/F. PW2 identified the case property i.e ganja as Ex.P-1 and Ex.P-2 and identified the Scooty through photographs Ex. P-3.
8. PW3 HC Ombir deposed the same facts as deposed by PW2 HC Rakesh Kumar.
9. PW4 Dr. Adesh Kumar is Senior Scientific Officer (Chemistry), FSL Rohini, Delhi. PW4 deposed that on SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 6 of 26 State Vs Bhagat Singh & Anr.
28.09.2020, two sealed plastic containers alongwith forwarding letter were received in FSL and seals were intact. He examined the contraband and prepared detailed report Ex.PW4/A and remnant samples were sealed with the seal of 'AY FSL DELHI'. In his cross-examination, he deposed that the parcels received at FSL contained flowering and fruiting tops of ganja.
10. PW5 is HC Pardeep, who on 28.09.2020 deposited the duly sealed plastic containers containing the samples to FSL Rohini vide RC no. 207/21/20 Ex.PW5/A and handed over the receipt/acknowledgment Ex. PW5/B to MHC(M).
11. PW6 SI Shubham is the Investigating Officer in this case. PW6 deposed that on 07.09.2020, on receipt of DD no. 110A, he reached Paprawat Road, near Suri Farm where he met PW3 HC Ombir and PW2 HC Rakesh along with two persons and they handed over both accused, recovered polythene containing Ganja. He requested some passerby to join raiding party but none agreed. He sent PW2 HC Rakesh at about 8:25 PM to Narcotic Squad Dwarka to bring testing kit and weiging machine etc. and at about 9:20 PM, he came to spot along with testing kit and weighing machine etc. He gave notice under section 50 NDPS Act Ex.PW6/A1 and Ex. PW6/A2 to both the accused persons and informed them about their legal right, if they wish their search can be conducted by a nearest Gazetted Officer/Magistrate but both accused refused to SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 7 of 26 State Vs Bhagat Singh & Anr.
exercise their rights. Thereafter, PW6 took body search of the accused but nothing objectionable was found. PW6 checked the material of polythene with the help of testing kit and same was found to be ganja. From accused Amarjeet 500 grams of Ganja was recovered and from accused Bhagat Sigh 01 KG Ganja was recovered. Ganja was taken into possession vide seizure memo Ex.PW2/A1 and Ex.PW2/A2. SHO also put his seal on case property. Seal after use was handed over to Ct. Rakesh. Thereafter, PW6 recorded statement Ex.PW3/A of PW3/HC Ombir, made endorsement and prepared rukka Ex.PW6/C and handed over the same to PW2/HC Rakesh for registration of the FIR. PW2 went to P.S. and got the FIR registered and came along with copy of FIR and original tehrir. PW6 arrested accused vide arrest memo Ex.PW2/B1 and Ex.PW2/B2 and conducted their personal search vide memo Ex.PW2/C1 and Ex.PW2/C2. From personal search of accused Bhagat Singh Rs.580/- along with notice under section 50 NDPS Act was recovered and from personal search of the accused Amarjeet Rs.70/- and notice under section 50 NDPS Act was recovered. PW6 recorded disclosure statement of both the accused persons vide memo Ex.PW2/D1 and Ex.PW2/D2, seized Scooty vide memo Ex.PW2/E, prepared site plan vide memo Ex.PW2/F. Thereafter, PW6 prepared report Ex.PW6/D under section 57 NDPS Act. PW6 moved an application under section 52A NDPS Act for drawl of sample and got the sampling proceedings conducted and filed the SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 8 of 26 State Vs Bhagat Singh & Anr.
photographs of the sampling proceeding. PW6 identified the case property Ex. P1 and Ex. P2.
12. PW9 Inspector Gyanender is the then SHO. He deposed that on 07.09.2020, he was on patrolling duty and during patrolling IO/SI Shubham and Duty Offier informed him that two persons on Scooty has been apprehended with Ganja. PW9 reached the spot where SI Shubham and Ct. Rakesh and HC Ombir were present along with two accused and Scooty bearing no. DL 9S AP 9188. IO produced two pullanda sealed with the seal of 'SS' along with carbon copy of seizure memo. PW9 put his counter seal of 'GR' on the pullandas and left the spot along with case property and deposited the same in the malkhana. Thereafter, as per his directions, DD entry was registered by the Duty Officer in compliance of Section 55 NDPS Act.
13. During the trial, statement of accused persons regarding admission/denial of documents under Section 294 Cr.P.C. was recorded on 22.01.2024 and accused persons admitted the genuineness of certain documents i.e FIR Ex. A-1; Certificate under section 65 B Indian Evidence Act Ex. A-2; DD no. 132 dated 07.09.2020 Ex. A-3; DD no. 110 dated 07.09.2020 Ex. A-4; proceedings under section 52A conducted by the Ld. Metropolitan Magistrate dated 14.09.2020 of accused Amarjeet @ Kale Ex.A-5; proceedings under section 52A conducted by the SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 9 of 26 State Vs Bhagat Singh & Anr.
Ld. Metropolitan Magistrate dated 14.09.2020 Ex.A-6; photographs of proceedings conducted of accused Bhagat Singh Ex.A-7; photographs of proceedings conducted of accused Amarjeet 2 Kale Ex.A-8. Thereafter, prosecution evidence was closed vide order dated 05.10.2024 and 16.01.2025. Statement of accused Bhagat Singh and Amarjeet @ Kale under Section 313 Cr.P.C. (now 351 BNSS) has been recorded whereby all the incriminating evidence was put to them to which they stated that they are innocent and has been falsely implicated in the present case. During the recording of the statement, accused did not wish to lead defence evidence and matter was fixed for final arguments.
14. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
15. Both accused persons were charged for the offence punishable under section 29 NDPS Act and under section 20 (b) (ii) (B) read with Section 25 NDPS Act.
16. Section 20(b)(i) of the NDPS Act provides that whosoever, in contravention of any provision of this Act or any rule or order made, or condition of licence granted thereunder produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter- State or uses cannabis, shall be punished, when the SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 10 of 26 State Vs Bhagat Singh & Anr.
contravention relates to ganja or cultivation of cannabis plant with RI for a term which may extend to five years. Section 20 (b) (ii) provides that such contravention, when it relates to cannabis other than ganja with RI for a term which shall not be less than 10 years.
17. Stringent provisions are provided under law qua punishment in cases under the NDPS Act. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance with various safeguards ensured under the Act. The NDPS Act prescribes stringent punishment and therefore, a balance must be struck between the need for the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband.
18. Section 54 of NDPS Act places burden of proof on the accused as regards the possession of the contraband to account for the same satisfactorily but the statutory presumptions under Section 54 of the NDPS Act must not be mechanically invoked. Courts must scrutinize the totality of evidence--officers' testimonies, presence of independent witnesses, chain of custody, forensic results, and the presence or absence of contradictory evidence. Thus, a "cumulative view" decides whether the SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 11 of 26 State Vs Bhagat Singh & Anr.
contraband truly was recovered from the accused and was indeed illicit. Only if procedural defects jeopardize or cast a serious doubt on the authenticity of the contraband or the fairness of the investigation does the likelihood of an acquittal arise and conviction can stand only if, despite procedural lapses, the overall evidence remains credible.
19. The first argument raised by Ld. Counsel for the accused is that PW-6 IO/SI Subham who had seized the recovered substance has deposed in his cross-examination that the physical appearance of alleged ganja was in the form of dry leaves and as per Section 2 (iii) (b) of the NDPS Act, it is not covered under the definition of ganja as ganja includes only the flowering and fruiting tops excluding the seeds and leaves. Learned counsel has argued that substance recovered in the present case does not fall under the category of Ganja as defined under NDPS Act.
20. As per tehrir Ex. PW/C, both the polythenes which were recovered from the accused persons was found containing 'Ganje jaisa padarth'. Similarly, in both the seizure memos Ex.PW2/A1 and Ex. PW2/A2 it is mentioned that the polythenes contained 'Ganje jaisa padarth.' Nowhere in the tehrir or seizure memo, the physical appearance of the substance recovered from the accused has been given. After the samples were drawn, the SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 12 of 26 State Vs Bhagat Singh & Anr.
samples were sent to FSL for Chemical examination and as per the chemical examiner report, the description of the alleged contraband on the basis of physical appearance has been shown to be "dried greenish brown flowering and fruiting vegetative material" and on examination, the exhibits were found to be ganja. The physical characteristics of the recovered substance are neither mentioned in the tehrir nor the seizure memos and for the first time, it has come only in the evidence of PW-6/IO SI Subham that the recovered substance was in the form of dry leaves.
21. Cannabis is defined in Section 2 (iii) of the NDPS Act, which reads as under: -
"(iii) cannabis (hemp) means-
(a) charas, that is, separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant, (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom."
22. A perusal of the above definition of "Cannabis (hemp) would reveal that cannabis (hemp) means charas, ganja or any mixture of charas and ganja. So far as ganja is concerned, it is the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves when not SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 13 of 26 State Vs Bhagat Singh & Anr.
accompanied by the tops, by whatever name they may be known or designated. What is relevant to note is that the Legislature has consciously excluded the seeds and leaves of cannabis plant when not accompanied by the tops.
23. The 'Cannabis plant' is defined under Section 2
(iv) of the NDPS Act, which means any plant of genus cannabis. It is also relevant to mention here that Bhang (cannabis) plants are of two kinds known as male and female. A female cannabis plant is called Pistillate plants whereas male plants are identified by short Axillary Dropping Panicles. Female flowering tops coated with resin are Ganja whereas fruiting leaves are called Bhang.
24. According to Modi's Medical Jurisprudence and Toxicology 21st Edition, 1988, Section II toxicology Chapter XXXIV page 248, 'Bhang', 'Siddhi' 'Patti' are cannabis Sativa consists of dried leaves and fruiting shoots whereas Ganja has rusty green colour and a characteristic colour and consists of flowering or fruiting tops of the female plant quoted with resin. According to Modi's toxicology, Charas is concentrated resin excluding from the leaves and stems of the plant.
25. Undoubtedly, cultivation of 'Bhang' is punishable under the NDPS Act but it is not included within the definition of cannabis (hemp), however, the personal use and sale of Bhang is not an offence. Reliance placed on SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 14 of 26 State Vs Bhagat Singh & Anr.
Jangir Singh Vs. State of Punjab, CRM-M No.266 of 2018 decided on 13.07.2018.
26. In the present case, as per the testimony of the seizing IO/ PW-6, it is not deposed that the leaves which were seized by the police from the accused were accompanied by the tops. The question for consideration by this Court is as to whether the leaves of cannabis plant fall within the definition of cannabis (hemp). If the leaves of cannabis plant do not fall within the definition of cannabis (hemp), then the possession thereof and sale are not regulated by the NDPS Act and it cannot be said that the accused is involved in commission of offence under NDPS Act. So, the recovery effected from the accused persons does not attract provisions of NDPS Act.
27. Not only the recovery effected from the accused persons does not attract the provisions of NDPS Act rather it has also remained unexplained as to how the dry leaves recovered from the accused persons transformed themselves into fruiting flowering material when it travelled from the hands of IO to its destination at FSL.
28. Section 55 of the NDPS Act provides that all articles seized under NDPS shall be under the safe custody of the officer-in-charge of a police station in duly sealed condition till orders of the Magistrate are obtained. If any samples are taken, the same shall also be sealed. Further, section 57 prescribes mandatory intimation to SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 15 of 26 State Vs Bhagat Singh & Anr.
departmental superiors within 48 hours of the seizure. Thus, in cases under NDPS Act, the chain of custody is vital for the admissibility of evidence.
29. In the present case, prosecution has neither examined the Malkhana Incharge of the police station nor produced the case property registers no. 19 and 21 which shows that any case property was ever deposited in the malkhana of the police station and that the chain of custody was unbroken.
30. Case property registers document the collection, storage, movement, and disposition of evidence and include details as to who handled the evidence at different stages of the case and why, which helps prevent tampering, loss, or contamination. Maintenance of the chain of custody in criminal proceedings is required to establish that the physical evidence being produced before the Court is the same as the one that was taken possession of by the investigating officers during investigation. Properly maintained case property registers are important because they ensure that evidence is handled properly and can be used in court. If the chain of custody appears to be broken or any evidence appears to be tampered, then the outcome of the trial is vitiated. Apart from bolstering the prosecution's case, maintenance of the chain of custody also plays a pivotal role in protecting the rights of the accused. The criminal justice system, which presumes the accused to be innocent till proven guilty, is designed to SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 16 of 26 State Vs Bhagat Singh & Anr.
ensure a fair and impartial trial, and a transparent chain of custody contributes to this objective. Accurate documentation and handling of evidence prevents the possibility of planting, tampering or contamination of the evidence.
31. Adverting to the facts of the case, prosecution has failed to produce, let alone prove on record, the case property register in the present case. The case property register is necessary to be produced during the trial so that the prosecution could establish that during the entire period of transit from the point of seizure to the production before the court, duly identified and authorised persons only had custody of the seized object and all steps of transfer of evidence from one person to another were for taken for justified purposes. The production of the case property register would have shown the continuity of possession of the drugs/ganja seized during investigation including its movement from the point of recovery to its transport to the forensic science laboratory (F.S.L.) for examination and eventual production in the court for admission and evaluation as evidence.
In the present case, by not producing register no. 19 and 21 and by not examining the MHC(M) who had deposited the case property in the godown at the relevant time, prosecution has failed to prove that the chain of custody of the seized contraband was properly maintained SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 17 of 26 State Vs Bhagat Singh & Anr.
or that the case property remained untampered throughout the investigation and trial.
32. Ld. Counsel for the accused further argued that there was delay in drawing samples of the case property and even after the drawal of samples, the case property was not sent immediately to FSL rather after a delay of one and a half month.
33. Hon'ble Supreme Court in the case of Bharat Aambale Vs. The State of Chhatisgarh clarified that while the NDPS Act's procedural safeguards are crucial, especially Section 52A advocating Magistrate supervision and safe disposal of seized narcotic, an accused does not secure an automatic acquittal solely on showing a technical or delayed compliance with these requirements. The pivotal question is whether the contraband was indeed seized from the accused and whether the chain of custody truly stands. If the prosecution otherwise demonstrates beyond a reasonable doubt that the accused was found in possession of a prohibited substance, minor lapses in procedure or timing on the part of the investigators (in sending, testing, or disposing of seized items) will not, by themselves, defeat the prosecution. Conversely, where grave procedural infractions compromise authenticity, the courts must draw adverse inferences. Ultimately, the Court's stance preserves both the legislative objective of curbing the menace of narcotics trafficking and the due SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 18 of 26 State Vs Bhagat Singh & Anr.
process rights of accused individuals, ensuring that genuine procedural lapses that truly prejudice the defence can, and must be recognized and addressed.
34. In the case in hand, the alleged ganja was seized on 07.09.2020 and IO moved the application for sampling before Ld. MM on 08.09.2020. Thereafter, proceedings under Section 52-A NDPS Act was conducted on 14.09.2020 and the samples were drawn but the samples were deposited at FSL on 28.09.2020. As already discussed above, prosecution has failed to examine the MHC(M) and produce the relevant register to show that the chain of custody was maintained properly and the hence, accused persons have been able to show that they have been prejudiced due to the unexplained delayed compliance of Section 52-A NDPS Act.
35. Ld. Counsel for the accused also argued that the accused persons were apprehended at main Paprawat road but no independent public person was joined in the proceedings.
In the present case, both the accused persons were apprehended near Suri Farm at main Paprawat Road, and recovery of Ganja in intermediate quantity was affected from them. The record reveals that no independent public person was joined in the proceedings. It is to be kept in mind that the non-joining of public witnesses itself cannot SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 19 of 26 State Vs Bhagat Singh & Anr.
afford a ground for acquittal, if the case of the prosecution is otherwise reliable.
36. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable to non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. The proposition is not disputed but the balance has to be maintained if some doubt is created regarding the involvement of the accused. Each case has its own facts and circumstances. Accordingly, it is trite that mere failure to associate public witnesses in search and seizure proceedings is not fatal to the case of the prosecution. However, in such a case, the burden lies heavily on the prosecution to prove two things - Firstly, that a genuine and sincere effort was made by the investigating officer to join independent persons in the proceedings and secondly, that the evidence of the official witnesses does not suffer from any infirmity.
37. In the present case, as per the story of the prosecution, on 07.09.2020, PW2/HC Rakesh and PW-3/HC Ombir were on patrolling duty in the area and they apprehended the accused with illegal contraband. The SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 20 of 26 State Vs Bhagat Singh & Anr.
testimonies of the members of the raiding team suffer from contradictions and it is evident therefrom that the witnesses have remained evasive on material aspects. As far as the testimonies of witnesses about the joining of independent witnesses are concerned, PW2/HC Rakesh deposed in his cross-examination that the spot of apprehension is not a residential area but farm houses are there and he also deposed that HC Ombir requested few passersby to join the raiding party. Same has also come in the deposition of PW-3/HC Ombir that he requested few passersby to join the investigation but he admitted in his cross-examination that he did not give any notice to the persons who refused to join the investigation. Hence, from the examination of the above witnesses, it is evident that no sincere efforts were made by the police to join any public person in the investigation.
38. Admittedly, the police officials remained on the spot for a considerable time and the IO had ample time to join independent persons in the proceedings but public persons were not at all requested to join the proceedings. It is a quite surprising fact that despite the availability of public witnesses, the investigating agency could not associate even a single public witness at any stage of the investigation. This leads to the inevitable inference that the investigating agency was not interested to make any public witness a part of the raiding team and thus there has been a deliberate disregard of the statutory safeguards relating to SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 21 of 26 State Vs Bhagat Singh & Anr.
search and seizure on the part of IO which renders the recovery proceedings unworthy of credence. Hence, all these facts raise some doubt on the truthfulness of the story of the prosecution.
39. The present case revolves around the alleged recovery of Ganja in intermediate quantity from the possession of the accused persons Bhagat Singh and Amarjeet @ Kale by PW2 and PW3 who were on patrolling duty.
40. As per Chapter 22 Rule 49 of Punjab Police Rules 1934, the police officials are under statutory duty to mark their arrival and departure entries in the register maintained in the Police Station for this purpose. PW2 and PW3 both deposed that as per duty roster, they were on patrolling duty and PW-2 deposed in his cross-examination that he does not remember the DD number vide which they left the police station on that day. Similarly, the arrival entry of PW 6/ IOSI Shubham at the spot has also not been filed on record by the prosecution. Hence, prosecution has failed to prove the DD entry vide which the recovery witnesses PW2, PW3 and PW6 had left the police station for performing their respective duties on the relevant day.
41. In cases where public persons could not be joined in the investigation, the departure entries of the concerned police officials become vital pieces of evidence. However, SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 22 of 26 State Vs Bhagat Singh & Anr.
no such daily diary entry has been proved on record. Proof of the said entry/entries is indispensable as the present case rests solely on the alleged recovery made by police officials but evidently, the arrival and departure entries of the recovery witnesses have not been duly proved by the prosecution.
42. It is also argued by the ld. Counsel for the accused that the prosecution has not been able to prove that the information of arrest and seizure was given to the senior police officials and prosecution has failed to prove the compliance of Section 57 of NDPS Act.
It can be seen from the record that PW-/IO SI Shubham deposed that he prepared the report of arrest Ex. PW/D under Section 57 NDPS Act and sent to superior officers. A bare perusal of arrest report u/s 57 NDPS Act shows that it is neither addressed to any officer nor bears the endorsement of having been received by any superior officer. There is no dispatch number or diary number mentioned on the report Ex. PW6/D which implies that the intimation of arrest was never given to any superior officer. Assuming that the arrest and seizure report was duly sent to the superior officer, the prosecution should have examined the concerned superior officer as only he could have deposed whether any report was received and also the date and time when the said intimation/report was received by him. Hence, prosecution has failed to prove SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 23 of 26 State Vs Bhagat Singh & Anr.
that there was a proper compliance of Section under Section 57 of NDPS Act.
43. It is settled law that provision of Section 57 NDPS act is directory in nature and a violation of section 57 of NDPS Act will not vitiate the trial, if there is otherwise sufficient material on record to convict the accused but in the present case, the absence of independent witnesses, contradictory statements of recovery witnesses regarding each and every material aspect related to the recovery of the contraband coupled with the non-compliance of statutory provisions of NDPS Act have certainly made the prosecution story doubtful and have adversely impacted the fate of present case.
44. Prosecution has also failed to prove that there was no possibility of tampering of the case property. As per the police report, after use, the seal of 'SS' was handed over to Ct. Rakesh (now HC) but no handing over memo in respect of the seal has been filed on record. Thus, the fact of handing over of the seal of 'SS' to Ct. Rakesh (now HC) in the police report has not been proved by the prosecution.
45. Further, admittedly, the seal in the present case was not handed over to any independent witness nor was it was deposited in the malkhana to assail the possibility of its misuse. The seal after use was handed over to Ct. Rakesh SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 24 of 26 State Vs Bhagat Singh & Anr.
who is also posted in the same Police Station and the justification given is that the recovery was effected in the night, so the seal could not have been handed over to anyone else except the Police Officials present in the Police Station but it is relevant to mention that in such a situation it was necessary to prepare a Seal Handing Over Memo to show that the seal was not retained by the IO himself. The sole purpose of handing over the seal and seal handing over memo is to rule out any chance of tampering of the case property by the IO by again unsealing the case property and hence the seal has to be handed over to another person, which is not done in the present case. Accordingly, the possibility that the case property may have been tampered with cannot be ruled out.
46. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject, of course to some statutory exceptions. Prosecution should be able to prove the complete chain of events which led to the commission of the offence and prosecution case should stand on its own legs. Further, it is the cardinal principle of criminal jurisprudence that culpability of accused has to be proved beyond doubt and SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 25 of 26 State Vs Bhagat Singh & Anr.
in case, there is any doubt, then benefit of doubt should be given to the accused.
47. In the light of the above said discussion and appreciation of evidence, court is of the opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubts, hence, the accused Bhagat Singh S/o Sh. Balwant Singh and Amarjeet @ Kale S/o Sh. Shrichand are acquitted from the charges framed against them.
48. File be consigned to record room after due compliance. Digitally signed MANU by MANU GOEL KHARB GOEL Date:
2025.02.28 KHARB 18:23:29 +0530 Announced in the open court today (Manu Goel Kharb) today i.e. 28.02.2025 Special Judge (NDPS)-02 South West District Dwarka Courts: Delhi SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 26 of 26