Delhi District Court
State vs Sonu on 27 February, 2025
State Vs Sonu SC no. 59/2023
IN THE COURT OF Ms. MANU GOEL KHARB
SPECIAL JUDGE (NDPS)-02: DWARKA COURTS
NEW DELHI
SC No. 59/2023
FIR No. 905/2020
U/s. 20 (b) (ii) (B) NDPS Act
PS: Baba Haridas Nagar
State vs. Sonu
Date of Institution of case :- 27.01.2023
Date of arguments :- 24.02.2025
Date on which Judgment pronounced :- 27.02.2025
JUDGMENT
CNR No. DLSW01-000918-2023
Date of commission of the 27.10.2020
offence
Name of the complainant SI Rakesh Kumar
Name and address of accused Sonu S/o Sh. Dharamveer R/o
Village Khanda Khedi, Thana
Narnond, District Hissar,
Haryana
Offence complained of 20 (b) (ii) (B) NDPS Act
Plea of accused Pleaded not guilty
Date of order 27.02.2025
Final order Acquitted
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 27.10.2020, SI Ramesh Kumar alongwith Ct. Mukesh and Ct. Jaswant were on patrolling duty in the area and when they reached Page 1 of 28 State Vs Sonu SC no. 59/2023 in front of parking at New Anaj Mandi, Nazafgarh, then they saw the accused Sonu with a plastic katta in his hand and after seeing the police party, he started moving back with fast steps. On directions of SI Ramesh Kumar, Ct. Jaswant stopped that person. Thereafter, SI Ramesh Kumar checked the plastic katta and same was found having grassy, leafy, seedy, vegetative substance which prima facie appears to be Ganja. SI Ramesh Kumar shared the information with the SHO and asked him to send some Gazetted Officer to the spot. At about 10:45 PM, SI Ramesh Kumar sent Ct. Mukesh to bring IO bag and Electronic Weighing Machine from Police Station. SI Ramesh Kumar prepared notice under section 50 NDPS Act in duplicate and served the notice to accused and informed the accused about his legal rights. In the meantime, some public persons gathered at the spot and SI Ramesh Kumar tried to join those persons as a witness but all refused to join without disclosing their names and addresses. In the meantime, at about 11:10 PM, ACP Joginder Joon ACP/Nazafgarh reached the spot and he introduced himself to accused and informed the accused about his legal right that his personal search can be conducted by a Gazetted Officer or Magistrate. In the meantime, at about 11:20 PM, Ct. Mukesh reached the spot along with IO kit and Electronic Weighing Machine. In the presence of ACP, SI Ramesh Kumar weighed the recovered Ganja with the help of Electronic Weighing Page 2 of 28 State Vs Sonu SC no. 59/2023 Machine and its weight was found to be 2 KG and thereafter, the recovered ganja was kept in the same white colour plastic katta and sealed with the seal of 'RK' and pullanda was given Mark 'A' and taken into possession vide seizure memo and the same was also signed by ACP. Seal after use was handed over to Ct. Jaswant. Thereafter, SI Ramesh Kumar prepared tehrir under Section 20 NDPS Act and handed over the same to Ct. Mukesh along with sealed case property and carbon copy of seizure memo of case property for registration of FIR and proceedings under Section 55 NDPS Act. Ct. Mukesh went to police station and handed over the tehrir to Duty Officer for registration of FIR and further investigation of the case was marked to ASI Rakesh Kumar. Thereafter, ASI Rakesh Kumar reached at the spot and SI Ramesh Kumar handed over accused, seizure memo of ganja and carbon copy of notice under section 50 NDPS Act to ASI Rakesh Kumar. Thereafter, ASI Rakesh Kumar prepared site plan at the instance of SI Ramesh Kumar. At about 5:30 PM, accused Sonu was arrested and from his personal search carbon copy of notice under section 50 NDPS Act was recovered. ASI Rakesh Kumar recorded disclosure statement of the accused and sent the report under section 57 NDPS Act to ACP. On 28.10.2020, he got conducted the sampling proceedings before the Ld. Magistrate under section 52A of NDPS Act. During course of investigation, PC remand of the accused was taken and after PC, accused Page 3 of 28 State Vs Sonu SC no. 59/2023 was remanded to JC. During investigation, samples were sent to FSL and after obtaining the result, charge-sheet was filed before the court.
2. Vide order dated 03.02.2023, charge for the offences punishable under Section 20 (b) (ii) (B) NDPS Act was framed against the accused Sonu to which he pleaded not guilty and claimed trial.
3. The prosecution examined 09 witnesses in support of its case.
4. PW-1 SI Jai Bhagwan is the Duty Officer. He deposed that on 28.10.2020, at about 1:57 AM, he recorded present FIR Ex. PW1/A on the basis of rukka Ex. PW1/B sent by SI Ramesh through Ct. Mukesh and issued certificate under section 65B of Indian Evidence Act Ex. PW1/C regarding the computerized copy of FIR.
5. PW2 is ASI Satya Pal. PW2 proved intimation under section 57 NDPS Act Ex. PW2/A entered in diary register vide sl. no. 7470.
6. PW3 is SI Ramesh Kumar first Investigating Officer of the present case. PW3 deposed that on 27.10.2020, PW3 along with PW6/HC Mukesh and PW8/HC Jaswant were on on patrolling duty and at about 10:15 PM, when Page 4 of 28 State Vs Sonu SC no. 59/2023 they reached opposite to parking Anaz Mandi, Najafgarh, Delhi, they saw that one person coming from the side of Najafgarh and crossing the gate of the Anaz Mandi. On seeing them, he turned back and started moving with fast steps and he was apprehended. He was carrying one plastic katta on his hand, and he could not give any satisfactory answer. PW3 opened the katta and on opening the katta, leafy, greenish substance was found and the same appers to be Ganja. PW3 made call to SHO and SHO BHD Nagar informed ACP. Thereafter, PW3 sent PW6/Ct. Mukesh to Police Station to bring IO bag and Electronic Weighing Machine. PW3 tried to join the passerby to join the proceedings but none agreed. PW3 served a notice under section 50 NDPS Act Ex. PW3/A after informing him about his legal rights that he can be searched by a Gazetted officer, if he wishes so and he can also take the search of the member of the raiding team. In reply on the notice, accused told PW3 that he want to be searched by a Gazetted officer but he did not want to search member of the raiding team. In the meantime, PW4/ACP Joginder Singh Joon, reached at the spot and he also informed accused about his legal rights. After sometime, PW6/Ct. Mukesh reached the spot along with IO bag and Electronic Weighing Machine and with help of Electronic Weighing Machine, the weight of the same came out to be 2Kg. Seizure memo of the Ganja was prepared vide Ex. PW3/B after sealing with the seal of RK.
Page 5 of 28 State Vs Sonu SC no. 59/2023PW3 prepared a tehrir Ex. PW3/C, handed over the same to PW6/Ct. Mukesh for registration of the FIR along with carbon copy of the seizure memo and case property with the instructions that the case property be handed over to SHO and tehrir to the Duty Officer for registration of the FIR. After sometime, PW6/Ct. Mukesh came alongwith second IO PW7/ASI Rakesh, after registration of the FIR. PW7/ASI Rakesh prepared site plan at the instance of PW3. PW3 identified the case property and the accused.
7. PW4 is Retired ACP Joginder Joon. He deposed that on 27.10.2020, he was posted as ACP at Najafgarh Sub Division. On that day, at about 10:50 PM, SHO P.S. BHD Nagar informed him that PW3/SI Ramesh Kumar along with his team has apprehended one person along with Ganja in front of parking gate New Anaj Mandi, Najafgarh. At about 11:10 PM, he reached at the spot, where he met PW3/SI Ramesh, PW8/HC Jaswant and PW6/Ct. Mukesh along with one person Sonu. PW4 introduced himself to Sonu and also informed his legal rights and in the meantime PW6/Ct. Mukesh reached along with Electronic Weighing Machine and IO Kit. With the help of Weighing Machine, plastic katta along with Ganja was weighed and it was found to be 2 Kgs. Katta containing Ganja was sealed after converting the same into pullanda and same was sealed with the seal of 'RK' and was seized vide seizure memo Ex. PW3BA. Seizure memo Page 6 of 28 State Vs Sonu SC no. 59/2023 was signed by PW4. Seal after use was handed over to PW8/Ct. Jaswant. PW4 identified the case property and accused.
8. PW5 Inspector Raman Pratap was looking after the work of SHO of PS BHD Nagar at the time of present FIR. He deposed that on 27/28.10.2020, he was looking after the work of SHO and PW3/SI Ramesh Kumar informed him that he had apprehended one person near Anaj Mandi alongwith narcotic drugs and requested him to send Gazetted Officer. PW5 made call to PW4 ACP Joginder Joon and requested him to reach at the spot and he made relevant entry vide DD no. 126A. He further deposed that PW6/Ct. Mukesh came to the Police Station with a pullanda duly sealed with the seal of 'RK' and copy of seizure memo. PW5 counter sealed the pullanda with the seal of 'SSS' and deposited the case property in malkhana and also mentioned the FIR number on the seizure memo and pullanda. At about 3:38 AM, PW5 lodged DD no. 9A regarding deposition of case property in the malkhana. PW5 also prepared inventory Ex.PW5/A and Ex. PW5/A1. He also forwarded the intimation under section 57 NDPS Act Ex. PW5/C.
9. PW-6 HC Mukesh deposed the same facts as was deposed by PW3/SI Ramesh Kumar. PW6 further deposed that IO/ASI Rakesh Kumar prepared site plan Ex. PW6/A, Page 7 of 28 State Vs Sonu SC no. 59/2023 arrested the accused vide memo Ex. PW6/B and his personal search was conducted vide memo Ex. PW6/C. PW6 further deposed that on 02.11.2020, he deposited the samples to FSL. PW6 identified the case property and accused.
10. PW7 ASI Rakesh Kumar is the 2 nd Investigating Officer of the case. He deposed that on 28.10.2020, Duty Officer handed over to him the original tehrir and copy of FIR as investigation of the present case was marked to him. PW7 along with PW6/Ct. Mukesh went to the spot in front of New Anaj Mandi, near parking, where PW3/SI Ramesh Kumar and PW8/Ct. Jaswant met him and handed over the accused Sonu. He prepared the site plan Ex.PW6/A at the instance of first IO, interrogated the accused and recorded his disclosure statement as Ex.PW7/A. He arrested the accused and conducted his personal search vide memos vide Ex.PW6/B and Ex.PW6/C. In personal search of accused, one notice under section 50 NDPS Act was recovered. Information regarding the arrest was given to mother of accused.
On 28.10.2020, PW7 got the sampling done before the Ld. MM under section 52A NDPS and the photographs of the same were also obtained. PW7 obtained one day PC remand and he along with PW6/ Ct. Mukesh went in the search of co-accused at Subhash Nagar but no one was found. After PC, accused was sent to JC.
Page 8 of 28 State Vs Sonu SC no. 59/2023During the course of investigation, PW7 sent samples to FSL Rohini through Ct. Mukesh and after obtaining the result prepared the chargesheet and filed the same before the court. PW7 identified the accused and case property.
11. PW8 is HC Jaswant. He deposed the same facts as was deposed by PW3/SI Ramesh Kumar and PW6/Ct. Mukesh.
12. PW9 ASI Hari Parkash is the then MHC(M) in the present case. He deposed that on 28.10.2020, PW5/ Inspector Raman Pratap handed over to him one sealed plastic katta sealed with seal of 'RK' and 'SSS' and he deposited the same in malkhana and made entry at sr. no. 2228 in register no. 19 as Ex. PW9/A. On 28.10.2020, plastic katta was sent to Court for sampling vide RC no. 275/21/20 Ex. PW9/B. On 02.11.2020, on directions of PW7/ASI Rakesh Kumar, PW9 gave two sealed exhibits sealed with seal of 'DV' along with FSL form to Ct. Mukesh vide RC no. 280/21/20 Ex. PW9/C, for depositing the same to FSL. After depositing the case property, Ct. Mukesh handed over to him the acknowledgment Ex. PW9/D.
13. During the trial, admission/denial of accused under Section 294 Cr.P.C. was recorded on 01.05.2024, wherein Page 9 of 28 State Vs Sonu SC no. 59/2023 accused admitted the genuineness of certain documents i.e Proceedings under section 52A conducted by the Ld. Metropolitan Magistrate Ex. A-1, and photographs taken at the time of sampling Ex. A-2, FSL report dated 27.01.2021 Ex.A-3. Thereafter, prosecution evidence was closed vide order dated 30.01.2025.
14. Statement of accused under Section 313 Cr.P.C. has been recorded wherein all the incriminating evidence was put to him to which he stated that he is innocent and has been falsely implicated in the present case. During the recording of the statement, accused stated that he did not wish to lead defence evidence and final arguments were heard.
15. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
16. Accused Sonu stands charged for the possession of an intermediate quantity of contraband i.e 2 Kgs of Ganja.
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 Page 10 of 28 State Vs Sonu SC no. 59/2023 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 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 and foremost ground taken by Ld. Counsel for the accused is that the accused was apprehended near Page 11 of 28 State Vs Sonu SC no. 59/2023 New Anaj Mandi, Parking Gate, Najafgarh but no independent public person was joined in the proceedings.
In the present case, the accused was apprehended near the Parking Gate of New Anaj Mandi, Najafgarh and recovery of Ganja in intermediate quantity was affected from him. 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 afford a ground for acquittal, if the case of the prosecution is otherwise reliable.
20. 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, Page 12 of 28 State Vs Sonu SC no. 59/2023 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.
21. In the present case, as per the story of the prosecution, on 27.10.2020, PW3 SI Ramesh, PW6 Ct. Mukesh and PW8 Ct. Jaswant were on patrolling duty in the area and they apprehended the accused with illegal contraband. The testimonies of the recovery witnesses 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, PW-3 SI Ramesh has deposed that he requested few passersby to join the investigation but all refused and left the spot without disclosing their names. PW-3 SI Ramesh deposed in his cross-examination that the place where he received information is surrounded by grain market and many shops. He also deposed that he was the division officer of the area since 7-8 months and many respectable persons like pardhan of RWA of the place of incident were familiar to him but despite that he did not request any independent public person to join the proceedings, Same has also come in the deposition of PW-6 and PW-8 that the that IO did not request any public person to join the investigation. Hence, from the examination of the above witnesses, it is Page 13 of 28 State Vs Sonu SC no. 59/2023 evident that no sincere efforts were made by the IO to join any public person in the investigation despite the fact that PW3/ SI Ramesh was the Division Officer of that area.
22. 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 quite a 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 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.
23. The present case revolves around the alleged recovery of Ganja in intermediate quantity from the possession of the accused Sonu by PW3, PW6 and PW8 who were on patrolling duty.
24. 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 Page 14 of 28 State Vs Sonu SC no. 59/2023 maintained in the Police Station for this purpose. PW3 deposed in his cross-examination that as per duty roster, he was on patrolling duty and the departure entry was made at 09:44 pm and admitted that the DD and time of departure entry was not mentioned in the rukka. Similarly, PW6 Ct. Mukesh deposed that he had made departure entry alongwith the entry of vehicle used for patrolling but he did not remember the departure entry or the DD writer. DD no. 115 A dated 27.10.2020 has been filed on record but same has not been proved by the prosecution by calling the concerned DD writer as a prosecution witness. But if the said DD entry is relied upon, the said entry nowhere records the departure of vehicle used for patrolling as deposed by PW6. Hence, prosecution has failed to prove the DD entry vide which the recovery witnesses PW3, PW6 and PW8 had left the police station for performing their respective duties on the relevant day.
25. Assuming that the departure entries have been duly proved by the prosecution, the presence of the PW3, PW6 and PW8 at the spot of recovery still remains doubtful due to the contradictions that have come in the testimony of these witnesses.
PW3 and PW8 deposed in their cross-examination that PW3 went for patrolling on his own bike and PW6/HC Mukesh and PW-8/HC Jaswant were on Govt. motorcycle whereas PW6 deposed that he and SI Ramesh were on one motorcycle and Ct. Jaswant was on another motorcycle Page 15 of 28 State Vs Sonu SC no. 59/2023 and that both the motorcycles were government motorcycles. It is also surprising that when PW3 was asked about the registration number and model of the bike on which he was patrolling, he was unable to tell the details of his own bike. It is not believable that a person, and that too, a police officer does not remember the registration number and model of his own bike. Furthermore, PW3 deposed that they patrolled on Jharoda Road before they reached at the spot whereas PW6 deposed that they patrolled Kali Piyao Mahesh Garden and then reached Anaz Mandi and PW8 deposed that they patrolled the Sainik Enclave and Kali Piyao Area before reaching at the spot. As such, all the witnesses can be seen making contradictory statements.
26. 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, 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 recovered witnesses have not been duly proved by the prosecution.
27. 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 Page 16 of 28 State Vs Sonu SC no. 59/2023 police officials and has failed to prove the compliance of Section 57 of NDPS Act.
It can be seen from the record that prosecution examined PW-2 ASI Satya Pal who brought the correspondence register from the office of ACP wherein the intimation u/s 57 NDPS Act was recorded in the diary of correspondence register at sr. no. 7470 as Ex. PW2/A. But PW-2 deposed in his cross-examination that he was not posted at the ACP office when the report was received and admitted that the register entry does not bear the signatures of ACP. Prosecution should have examined the concerned ACP to whom the arrest report and seizure report was sent 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 that there was a proper compliance of Section under Section 57 of NDPS Act.
28. 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 Page 17 of 28 State Vs Sonu SC no. 59/2023 prosecution story doubtful and have adversely impacted the fate of present case.
29. In the present case, prosecution has also failed to produce cogent evidence to rule out the possibility of tampering of the case property. As per the police report, after use, the seal of 'RK' was handed over to Ct. Jaswant but no handing over memo in respect of the seal has been filed, let alone proved. In fact, PW3 and PW6 both stated in their cross-examination that no handing over memo in respect of the seal in question was prepared. Thus, the fact of handing over of the seal of 'RK' to Constable Jaswant as stated in the police report has not been proved by the prosecution.
30. 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. Jaswant who is also posted in the same Police Station. 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 preparing the 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 till the production of case property in the court which is not done in the present Page 18 of 28 State Vs Sonu SC no. 59/2023 case. Accordingly, the possibility that the case property may have been tampered with cannot be ruled out.
31. Apart from this, the presence of ACP on the spot is also not free from doubt. In the present case, notice was given to the accused Sonu informing him about his legal right to be searched before a magistrate or a gazette officer and in response to the said notice, the accused gave his consent in his own handwriting that he wants his search to be conducted before a Gazetted Officer. But if we see the testimony of PW4/ACP Joginder Singh he deposed in his cross-examination that the accused refused to be searched before any Gazetted Officer and he had already given his refusal before PW4 reached at the spot. It is a matter of record that PW3 SI Ramesh Kumar prepared notice under section 50 NDPS Act Ex. PW3/A and served the notice to accused and informed the accused about his legal rights and accused desired to be searched before a Gazetted Officer. This shows that ACP Joginder never joined the proceedings at the spot and personal search of the accused was not conducted in the presence of any Gazetted Officer. Although the recovery had already been effected from the katta carried by the accused but different versions of the recovery witnesses regarding recording of the consent of the accused on the notice, has rather raised doubts whether the notice was even served on the accused or not.
Page 19 of 28 State Vs Sonu SC no. 59/202332. Another glaring violation in the present case is that IO has not mentioned the weight of the seized ganja in the seizure memo. Chapter II of The Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2002 deals with the Seizure and storage of Seized Material and Rule 3 of the said rules talk about the Classification of Seized material and reads as:-
" (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately.............
(5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama.
33. Further, Rule 5 of The NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 deals with the deposit of seized material in godowns which reads as :-
(1) All seized materials referred to in sub-rule (1) of rule 3, after seizure under the Act shall be deposited by the seizing officer in the nearest godown designated under rule 4 within forty-eight hours from the time of seizure alongwith a forwarding memorandum in Form-1:
Provided that ..................................
(2) The officer in-charge of a godown, before giving an acknowledgment of receipt in Form-2, shall satisfy himself that the seized materials are properly packed, sealed and in conformity with the details mentioned in Form-1.
(3)The officer, who had seized the material, shall hand over the acknowledgment of receipt of seized material in Form-2, alongwith all other documents relating to the seizure, to the Investigating Officer for further proceedings.Page 20 of 28 State Vs Sonu SC no. 59/2023
34. So, as per rule 5, the seizing IO has to deposit all the seized contraband in the godown and prepare the Memo as per Form-1 appended with the rules which contains all the details of the case, accused and the quantity etc. of seized goods. Form-1 is reproduced here for ready reference:-
FORM-1 [See rule 5(1)] [To be prepared in duplicate] Forwarding Memorandum to Godown by the Seizing Officer
1. NDPS Crime No. [as per crime and prosecution register under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)]
2. Name and address of the accused
3. Place, Date and Time of Seizure
4. Description (physical properties) of items in each sealed package / container
5. Results of test done, if any, by drug detection kit
6. Quantity in each sealed package / container
7. No. of packages / containers, material wise, containing similar material
8. Total Number of Packages / Containers
9. Total Number of Conveyances
10. Description of each conveyance, such as type, make, manufacturer name, colour, etc., alongwith identification number associated with each conveyance, such as registration number, engine number, chasis number, etc.
11. Description of animal used as conveyance
35. Now, if we see the seizure memo Ex. PW-3/B prepared by PW3, it is evident that the seizure memo does not mention the weight of the contraband seized in the present case. It is a settled law that seizure should be weighed on the spot and the memorandum should contain both gross weight and net weight of the contraband apart from the particulars of the drug and date of seizure. In the present Page 21 of 28 State Vs Sonu SC no. 59/2023 case, the absence of weight in the seizure memo gives rise to the only inference that the case property was deposited in the malkhana without taking its weight.
36. The NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 are formulated with a view to ensure seizure, storage, sampling and disposal of the psychotropic substances are done in a proper manner keeping in view the nature of the goods involved. As a matter of practice, the malkhana incharge of the police station, at the time of deposit of case property in the malkhana, enters the details in the register no. 19 and 21 on the basis of seizure memo prepared by the First IO. This means that if the seizure memo is silent regarding the weight of the contraband, then the weight of contraband deposited in the malkhana will also not be recorded in case property register, which is clearly in violation of the rules of 2022.
37. Further, SHO draws the inventory of the seized goods on the basis of seizure memo, which is then produced before the Ld. Magistrate at the time of proceedings under Section 52-A NDPS Act for the purpose of certification. In the present case, inventory Ex. PW5/A and Ex. P5/A1 was prepared by PW5/SHO Inspector Raman Pratap but there is no explanation on record as to how PW5 prepared the inventory when there was no weight mentioned in the seizure memo.
Page 22 of 28 State Vs Sonu SC no. 59/202338. Apart from the violation as mentioned above, there are also contradictions in the statements of witnesses regarding the fact of mentioning of weight in the seizure memo which not only creates more doubt on the prosecution story but also raises suspicion regarding the recovery of the alleged contraband from the accused in the given manner.
39. As per the prosecution story, PW3 SI Ramesh seized the ganja from the accused and it is a matter of record that the weight of contraband is not recorded in the seizure memo. The case property was seized by PW3 SI Ramesh in the presence of PW4/ACP Joginder Singh, PW-6 Ct. Mukesh and PW-8/Ct. Jaswant but if we see their testimonies, both PW4 and PW-6 deposed that the weight of ganja was mentioned in the seizure memo when they appended their signatures to it (which is not so in the present case) and PW8 deposed that he does not remember whether the weight was mentioned or not. After the seizure proceedings, the sealed case property and the seizure memo was produced by PW-6 Ct. Mukesh before PW-5/SHO Inspector Raman Pratap for the proceedings of Section 55 NDPS Act and PW-5 also deposed that the weight of ganja was mentioned in the seizure memo. All the three prosecution witnesses PW4, PW-5 and PW-6 deposed that weight was mentioned in the seizure memo whereas, the weight of the contraband, in fact, was not mentioned in the seizure memo. This shows that either the seizure memo has been changed by the IO or that the Page 23 of 28 State Vs Sonu SC no. 59/2023 above-mentioned witnesses never joined any proceedings and they merely signed the documents at the behest of IO. In view of the contradictions in the statements of witnesses, there is every possibility that the said witnesses never joined the proceedings of the present case and case property is planted on the accused.
40. It is also argued by Ld. Counsel for the accused that prosecution has also failed to produce the case property registers no. 19 and 21 which goes to prove that no such case property was ever deposited in the malkhana of the police station.
41. 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 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.
42. 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 Page 24 of 28 State Vs Sonu SC no. 59/2023 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 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.
43. 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 Page 25 of 28 State Vs Sonu SC no. 59/2023 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, prosecution has failed to prove that the chain of custody of the seized contraband was properly maintained or that the case property remained untampered throughout the investigation and trial.
44. Other than this, it is also observed that PW3 deposed that he prepared FSL form at the spot but no such form is exhibited during evidence. Even PW9/ASI Hari Parkash (the then MHC(M)) deposed that he gave two sealed exhibits sealed with seal of 'DV' along with FSL Form to Ct. Mukesh vide RC no. 280/21/20 Ex. PW9/C, for depositing the same to FSL but perusal of RC no. 280/21/20 Ex. PW9/C shows that there is no mention of FSL form in the said road certificate and even the FSL report Ex. A-1 only mentions that two sealed parcels were received at FSL but it does not talk about receipt of FSL form. This shows that the witnesses are making false stories with respect to FSL form.
Page 26 of 28 State Vs Sonu SC no. 59/202345. Hon'ble Supreme Court in the case of Bharat Aambale Vs. The State of Chharrisgarh 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 process rights of accused individuals, ensuring that genuine procedural lapses that truly prejudice the defence can, and must be recognized and addressed.
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 Page 27 of 28 State Vs Sonu SC no. 59/2023 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 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 Sonu S/o Sh. Dharamveeris acquitted from the charges framed against him.
MANU Digitally by MANU signed GOEL KHARB GOEL Date:
KHARB 2025.02.27 17:48:08 +0530 Announced in the open court today (Manu Goel Kharb) i.e. 27.02.2025 Special Judge(NDPS)-02 South-West District Dwarka Courts: Delhi Page 28 of 28