Delhi District Court
State vs Farukh @ Chapta on 27 March, 2025
DLSH010057882021 Page 1 of 102
SC/216/2021
State Vs.Farukh @ Chapta
FIR No.46/21
PS: Shahdara
U/s.20(b)(ii)(C) NDPS Act
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC/216/2021
State Vs.Farukh @ Chapta
FIR No.46/21
PS: Shahdara
U/s.20(b)(ii)(C) NDPS Act
In the matter of :-
State
(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Farukh @ Chapta
S/o. Siraj
R/o. E-127/2, Vikram Enclave,
Shalimar Garden,
Ghaziabad, UP
.....accused
(Sh. U.A. Khan, Advocate
for accused)
Date of institution : 24.07.2021
Date when Judgment reserved : 10.03.2025
Date of Judgment : 27.03.2025
Final Order : Accused convicted of
offence u/s20(b)(ii)(C)
of NDPS Act.
JUDGMENT:-
1. Accused Farukh @ Chapta is before the Court facing charge under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that 23.500 Kg Ganja (commercial DLSH010057882021 Page 2 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act quantity), which he kept in a plastic katta on the back seat of Swift car bearing no. DL4C-AS-8966, was recovered from his possession on 08.02.2021 at 10.50 p.m.
2. In view of alleged recovery of 23.500 Kg Ganja from accused, FIR No.46/21 was lodged at PS Shahdara on 09.02.2021. After completion of investigation, charge-sheet was filed on 24.07.2021. Charge was framed against the accused on 09.12.2021 for offence u/s.20(b)(ii)(C) NDPS Act, which reads as under :
"That on 08.09.2021 at 10.50 PM at Flyover going towards Shahdara from Seelampur, in front of Shyam Lal College, Shahdara, Delhi, you were apprehended on a secret information by a raiding party while you were coming in a Swift Car bearing no. DL4CAS-8966 and got recovered one plastic katta which you kept on the back seat of the aforesaid car which was found containing 23.500 Kilograms of Ganja in contravention of provisions of NDPS Act and thereby you committed an offence punishable under Section u/s. 20(b) (ii) (C) of NDPS Act, 1985 and within the cognizance of this court."
3. To substantiate the aforementioned charge, the prosecution presented 15 witnesses. The details of these witnesses, along with the documents they presented during their testimony, are listed below in tabular form:
PW Name of witness Documents Description
No. exhibited
PW1 ASI Narender Ex. PW1/A DD No.8
Singh (I.O.) Ex. PW1/B DD No.9
Ex. PW1/C Carbon Copy of notice u/s.50 NDPS Act
Ex. PW1/D Seal handing over memo
Ex. PW1/E Seizure memo of Ganja (contraband)
Ex. PW1/F Tehrir
Ex. PW1/G Site plan
Ex. P1 Case property
PW2 Insp. Shiv Raj Ex. PW2/A DD No.10A
Singh (SHO PS Ex. PW2/DX1 Entry No.2539 at Register no.19 Shahdara) DLSH010057882021 Page 3 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act PW3 HC Mohit Kumar Ex. PW3/A Seizure memo of car (Recovery Exs.PW3/B & Arrest memo and personal search memo of witness) PW3/C accused Exs.PW3/D & Disclosure statements E Ex. PW3/F Original Notice under section 50 NDPS Act Exs. P2 to P4 Mobile phone, Rs.80/- and DL of accused recovered from his personal search PW4 ASI Ajnesh Ex. PW4/1 Copy of FIR (Duty Officer) Ex. PW4/2 Endorsement on rukka Ex. PW4/3 Certificate u/s.65B of IEA PW5 ASI Rajiv Saxena Ex.PW5/A Entries at sl. Nos.0013 & 0014 in diary (Reader to ACP) register Ex. PW5/B Copy of special report sent by ASI Narender u/s.57 NDPS Act Ex. PW5/C Copy of special report sent by SI Harvir u/s.57 NDPS Act PW6 ACP Sanjeev Kumar (ACP Operation Cell) PW7 HC Rajiv Kumar Ex. PW7/A Handing over memo of sealed parcels, (Recovery handed over by SI Harvir to MHCM witness) PW8 SI Praveen Kumar Ex. PW8/A Copy of entry no.2539 in register no.19 (MHCM) Ex. PW8/B Copy of entry no.2540 in register no.19 Ex. PW8/C Copy of entry no.2541 in register no.19 Ex. PW8/D Copy of RC No.55/21/21 PW9 Pawan Singh Ex. PW9/A CAF in respect of Mobile Number (Nodal Officer, xxxxx80462 Vodafone) PW9/B Certificate u/s.65B of Indian Evidence Act PW10 Ajay Kumar Ex. PW10/A Certified copy of CAF of mobile (Nodal Officer, no.xxxxx31342 Bharti Airtel) Ex. PW10/B Certified copy of CAF of mobile no.xxxxx86973 Ex. PW10/C Certificate u/s.65B of Indian Evidence Act Ex. PW10/D Attested copy of CDR mobile no.xxxxx86973 DLSH010057882021 Page 4 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act PW11 Pankaj Sharma Ex. PW11/A CAF in respect of mobile number (Nodal Officer, xxxxx84470 Reliance JIO) Ex. PW11/B CDR w.r.t. to aforesaid mobile number from 01.09.2020 to 09.02.2021 PW12 Prince Tomar Ex. PW12/A Copy of RC No.55/21/21 (Witness of Ex. PW12/B Acknowledgment of FSL depositing case property at FSL) PW13 ACP Hira Lal (then In-charge Inspector Narcotic Cell) PW14 Dr. Adesh Kumar Ex. PW14/A Report of FSL (SSO, FSL, Rohini) PW15 Retired SI Harvir Ex. PW15/A Rukka Singh (I.O.) Admitted documents Ex. AD-1 Proceedings u/s.52A NDPS Act conducted (Admitted on 29.11.2024) by Ld. MM on 17.02.2021 Ex. AD-2 15 photographs of the proceedings u/s.52A Ex. AD-3 Vehicle particulars of vehicle no. DL4C-
AS-8966 Statement u/s.294 Cr.P.C. dated Regarding not-disputing the identity of 09.12.2024 vehicle no. DL4C-AS-8966
4. After examining the depositions 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 08.02.2021, at about 9.10 p.m., one secret informer came in the office of Narcotic Cell, Shahdara and met PW3 Ct. Mohit Kumar and gave him information that accused would come from Seelam Pur and go towards Seema Puri, via Shahdara flyover, between 10.30 - 11.00 p.m. in white colour Swift car, bearing no. DL4C-AS-8966 and if raid is conducted, he can be apprehended alongwith Ganja.
4.2. PW3 Ct. Mohit Kumar produced the secret informer before PW1 ASI Narender at 9.20 p.m. and the same information was given by the DLSH010057882021 Page 5 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act secret informer to PW1, who further shared the said information with Insp.
Heera Lal PW13 on telephone. The secret informer also talked to Insp. Heera Lal over telephone.
4.3. PW13 Insp. Heera Lal conveyed the information to PW6 ACP Sanjeev Kumar, who directed Insp. Heera Lal to take further steps immediately. Thereafter, PW13 Insp. Heera Lal directed PW1 ASI Narender to constitute a raiding party and proceed further. 4.4. Upon receiving the aforesaid direction, PW1 ASI Narender Singh lodged DD No.8 Ex. PW1/A w.r.t. the secret information and constituted a raiding party, including himself, PW3 Ct. Mohit and PW7 HC Rajiv. He thereafter shared the secret information with HC Rajiv. 4.5. At about 9.55 p.m., PW1, PW3 and PW7 along with secret informer left the Narcotic Cell vide Departure Entry No.9 Ex. PW1/B and PW1 carried with him IO kit and electronic weighing machine in car make Verna bearing no. UP14-CQ-6551, being driven by PW3. 4.6. Due to late hours, PW1 was not able to obtain any search warrants and the raiding team along with the secret informer reached at Shahdara Flyover at 10.10 a.m., via Karkari Road, 60 Foota Road, Krishna Nagar, Shyam Lal College Gol Chakkar and after taking a U-Turn from Metro Station Welcome.
4.7. After reaching at the flyover, PW1 directed PW3 to park the aforesaid Verna car at the end of Shahdara Flyover and the members of the raiding team thereafter took position at Shahdara Flyover. 4.8. PW1 stopped 4-5 vehicle riders and asked them to join the raiding party, but none of them agreed and left without disclosing their names and addresses. Thereafter, the raiding party placed the barricades lying nearby on the road and PW1 along with the secret informer took position about DLSH010057882021 Page 6 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 25-30 steps before the barricades.
4.9. At about 10.50 p.m., while checking the vehicles, one white colour Swift car bearing registration no. DL4C-AS-8966 was seen coming from the side of Seelam Pur and going towards Shahdara, which was pointed out by the secret informer, upon which, PW1 directed the raiding team to place barricades on road and the Swift car was stopped, which was being driven by accused and as soon as the car was stopped, he tried to flee away and also tried to cause injuries to himself by rubbing his neck on the boundary wall, but PW3 and PW7 controlled the accused and upon enquiry, accused disclosed his name as Farukh @ Chapta s/o. Siraj r/o. Vikram Enclave, Shalimar Garden, Ghaziabad, UP. 4.10. PW1 introduced himself and other members of the team to accused and informed him about the secret information and apprised him about his legal rights that he can get himself searched in the presence of Gazetted Officer or Magistrate by calling them at the spot or by producing him before them. Accused was also apprised that he can also take search of members of raiding team, before his search is conducted. 4.11. Notice u/s.50 NDPS Act Ex. PW3/F, which was prepared by PW1 and signed by PW3 & PW7, was served upon the accused and he was apprised about the contents of the same. Signatures of accused regarding receipt of the notice were taken on the carbon copy Ex. PW1/C and his refusal to get himself searched before a Gazetted Officer or a Magistrate or to take search of members of raiding party was recorded on the carbon copy Ex. PW1/C, bearing his signatures as well as signatures of PW1, PW3 and PW7.
4.12. At about 11.00 p.m., PW1 telephonically called PW6 ACP Sanjeev Kumar and informed him that accused has been apprehended at the spot, DLSH010057882021 Page 7 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act upon which PW6 came at the spot at about 11.30 p.m. 4.13. On the directions of PW6, accused opened the rear gate of aforesaid car and from the right rear side of the car, he took out one white plastic Katta and opened the same, which was found to contain Ganja. 4.14. On the directions of PW6, PW1 also conducted personal search of accused, but nothing was found therein.
4.15. The said plastic katta produced by the accused from the rear right side of the car, was weighed on electronic weighing machine and found to contain 23.5 Kg of Ganja-like substance.
4.16. PW1 tied the said katta and sealed it with the seal of MC and gave it Mark A, after which he handed over the seal to PW7 HC Rajiv vide handing over memo Ex. PW1/D. 4.17. The aforesaid katta sealed with the seal of MC was seized vide seizure memo Ex. PW1/E, bearing the signatures of PW1, PW3, PW6 and PW7 as well as signatures of accused.
4.18. Thereafter, PW6 left the spot and PW1 prepared tehrir Ex. PW1/F, which he handed over to PW3 for registration of FIR. PW1 also handed over carbon copy of the notice u/s.50 NDPS Act and copy of seizure memo of case property as well as the sealed pullanda to PW3 for being produced before PW2 Insp. Shivraj Singh Bisht, SHO PS Shahdara. 4.19. PW3 along with the aforesaid articles reached the PS, where he handed over the original tehrir to PW4 ASI Ajnesh, who was working as Duty Officer. He dictated the FIR on computer to the computer operator and registered FIR No.46/21 Ex. PW4/1 and made endorsement in this regard on the rukka, which is Ex. PW4/2. He also issued certificate u/s.65B w.r.t. the computerized copy of FIR Ex. PW4/3 and also got lodged DD Entry No.9A Ex. PW1/B regarding the registration of FIR.
DLSH010057882021 Page 8 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 4.20. PW3 produced the seizure memo, carbon copy of notice u/s.50 NDPS Act and the sealed pullanda before PW2 Insp. Shivraj Singh Bisht, who noticed that the pullanda was sealed with the seal of MC and he placed his seal of SSB on the said pullanda, got DD entry no. 10A Ex. PW2/A lodged in this regard and thereafter called MHCM PW8 SI Praveen Kumar to his office and handed over the sealed pullanda, sealed with the seal of MC and SSB to PW8 and also handed over to him copy of seizure memo after mentioning on it the FIR number. 4.21. PW8 upon receiving the sealed pullanda sealed with the seal of MC and SSB deposited the same in Malkhana vide entry at sl. no.2539 in register no.19 Ex. PW8/A, which entry was also countersigned by PW2. 4.22. PW4 after registration of FIR, handed over the copy of FIR to PW3 Ct. Mohit and PW3 called the 2nd IO PW15 SI Harvir Singh and both of them reached the spot.
4.23. At the spot, PW1 handed over the documents prepared by him to PW15 and PW3 handed over to him the original rukka and copy of FIR, upon which, PW15 mentioned the FIR number on the documents prepared by PW1 and thereafter, prepared site plan Ex. PW1/G at the instance of PW1.
4.24. PW15 seized vehicle no. DL4C-AS-8966 vide seizure memo Ex. PW3/A bearing signatures of accused as well as signatures of PW3 & PW7. (On 09.12.2024, accused had stated that he does not dispute the identity of vehicle no. DL4C-AS-8966 and did not seek its physical production in the Court for the purpose of evidence. On 29.11.2024, accused also admitted the computerized vehicle particulars of the aforesaid vehicle as Ex. AD3).
4.25. PW15 thereafter arrested accused vide arrest memo Ex. PW3/C DLSH010057882021 Page 9 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act bearing signatures of accused as well as signatures of PW3 and PW7 and intimation as regards arrest of accused was given to the wife of accused. 4.26. Personal search of accused was conducted vide memo Ex. PW3/B bearing his signatures as well as signatures of PW3 and PW7, in which besides other articles, original notice u/s.50 NDPS Act Ex. PW3/F was recovered.
4.27. Disclosure statement of accused was recorded on 09.02.2021 at Narcotics Cell office, which is Ex. PW3/D, bearing his signatures as well as signatures of PW3 and PW7.
4.28. Disclosure statement of accused was also recorded on 10.02.2021 at Narcotics Cell office, which is Ex. PW3/E, bearing his signatures as well as signatures of PW3 and PW7.
4.29. Report u/s.57 NDPS Act Ex. PW5/B w.r.t. recovery of Ganja was prepared by PW1, which was sent to senior officer i.e. Inspector Narcotic Cell PW13, who signed the same and forwarded it to PW6, ACP Operation Cell, Shahdara.
4.30. The said report Ex. PW5/B was received in the office of ACP Operation Cell on 09.02.2021 and entry in the diary register Ex. PW5/A in this regard was made at sl. no.13 by PW5 ASI Rajiv Saxena, Reader to ACP. ACP Sanjeev Kumar PW6 also signed the said report. 4.31. The report u/s.57 NDPS Act Ex. PW5/C w.r.t. arrest of accused was prepared by PW15, which was sent to senior officer i.e. Inspector Narcotic Cell PW13, who signed the same and forwarded it to PW6, ACP Operation Cell, Shahdara.
4.32. The said report Ex. PW5/C was received in the office of ACP Operation Cell on 09.02.2021 and entry in the diary register Ex. PW5/A in this regard was made at sl. no.14 by PW5 ASI Rajiv Saxena, Reader to DLSH010057882021 Page 10 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act ACP. ACP Sanjeev Kumar PW6 also signed the said report. 4.33. The said vehicle seized vide seizure memo Ex. PW3/A was deposited by PW15 with MHCM PW8 on 09.02.2021, w.r.t. which PW8 made entry at sl. no.2540 in register no.19 Ex. PW8/B. 4.34. PW15 SI Harvir Singh also deposited the personal search articles in the Malkhana with PW8, who made entry in this regard at sl. no.2541 in register no.19 Ex. PW8/C. 4.35. For proceedings u/s.52A NDPS Act, on 17.02.2021, on the directions of PW15, PW8 took the sealed pullanda Mark A sealed with the seal of MC and SSB to the Court of Sh. Ajeet Narain, Ld. MM where PW15 and PW7 were present.
4.36. Proceedings u/s.52A NDPS Act were conducted by Sh. Ajeet Narain, Ld. MM on 17.02.2021 in the presence of PW15, PW5 and PW8 as well as in the presence of accused. The seals of MC and SSB were found intact on the pullanda Mark A. The pullanda was opened and was found containing 23.172 Kg of Ganja, from which two samples of 250 Gms were taken out and marked as Mark A1 and A2, after which the pullanda was weighed and found to be 22.662 Kg. All the three pullandas were sealed with the seal of Court of Ld. MM i.e. 'AN' and 15 photographs were taken. Sh. Ajeet Narain, Ld. MM prepared record of proceedings, which was admitted by the accused on 29.11.2024 and is Ex. AD1. The 15 photographs taken during the sampling proceedings were also admitted by the accused on 29.11.2024 and are Ex. AD2. After the proceedings, the case property was handed over to PW8 MHCM vide case property and sample handing over memo Ex. PW7/A. 4.37. On 19.02.2021, PW12 HC Prince Tomar on the directions of PW15, obtained sealed parcel Mark A1, sealed with the seal of 'AN' along with DLSH010057882021 Page 11 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act FSL Form and sample seal from PW8 MHCM vide RC No.55/21/21 Ex. PW8/D (also Ex. PW12/A) and deposited the same with FSL Rohini vide acknowledgment Ex. PW12/B. 4.38. The said sample Mark A1 was examined by PW14 Dr. Adesh Kumar, Sr. Scientific Officer (Chemistry) FSL Rohini from 08.03.2021 to 17.03.2021, during which he found the parcel Mark A1 to be sealed with the seal of AN and upon opening it, it was found containing damp greenish brown fruiting and flowering vegetative material weighing 250.7 gms and upon physical, microscopic, chemical and TLC examination, the same was found containing Ganja.
4.39. PW10 Ajay Kumar, Nodal Officer, Bharti Airtel produced the CAF of mobile number 7428786973 Ex. PW10/B, as per which the said number is registered in the name of accused i.e. Farrukh s/o. Siraj Kaji at address 127, E Block, new Seema Puri, Shahdara, Delhi, and call records of the same are Ex. PW10/D. The certificates u/s.65B of IEA in this regard are Exs. PW10/C and PW10/E. 4.40. After closing of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded, wherein he pleaded innocence and claimed that he was falsely implicated in the present case by the concerned police officials in order to teach him a lesson, as he was also falsely implicated in case FIR No.135/2016 PS Nand Nagri u/s 20 NDPS Act. In the said case, he was not only acquitted by Ld. Special Judge, NDPS, Shahdara Distt KKD Court vide judgment dated 29.08.2016, but the Court also directed the DCP concerned to take action against the erring police officials who falsely implicate the accused in the said case. He claimed that he was not arrested in the manner as deposed by the prosecution witnesses, rather, he was lifted from near garbage house Jafrabad, Delhi and later on false recovery was planted DLSH010057882021 Page 12 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act upon him and for the said reason despite availability, neither any public person was joined nor any videography was conducted during the alleged search and seizure at the spot. No proceedings were conducted at the spot, neither legal rights were explained to accused by the IO, nor any notice under section 50 of the NDPS Act was served upon him. All the paper work was done at the PS by the concerned police official. Accused claimed that his refusal on the notice under section 50 of the NDPS Act was also written by the IO as per his own convenience, though he was quite competent to read and write in Hindi language.
5. Accused opted to lead evidence in defence. In his defence, accused examined two defence witnesses.
5.1. DW1 Sachin Kumar Nader, JJA produced the judicial file of FIR No.135/16 PS Nand Nagari and proved the judgment passed by the Court in the said case as Ex. DW1/B and also a document i.e. letter written by accused to the Jail Superintendent as Ex. DW1/A. 5.2. Accused also examined Manoj Kumar, Dy. Jail Superintendent, Central Jail Tihar to prove the said document Ex. DW1/A, to establish that he could write in Hindi language.
Arguments advanced
6. I have heard Sh. Jitender Sharma, Ld. Additional Public Prosecutor and Sh. U.A. Khan, Ld. Counsel for accused and perused the record.
7. Ld. Counsel for the accused addressed final arguments on 27.02.2025, 03.03.2025 and 05.03.2025, which were duly recorded in the order-sheet of even date. The submissions made by the Ld. Counsel are as under :
7.1. The secret information in the present case was received by Ct. Mohit, however, as per the requirement of Section 42 NDPS Act, Ct. Mohit did not DLSH010057882021 Page 13 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act record the said information in writing. Hence, there is violation of Section 42 NDPS Act.
7.2. The secret informer was produced before PW1 ASI Narender Singh, but even ASI Narender did not record the said secret information on CCTNS, rather, he got the information recorded in a handwritten Rojnamcha (DD No.8 Ex. PW1/A), which can be easily manipulated, ante-dated and ante-timed. 7.3. The DD No.8 w.r.t. recording of the secret information in terms of Section 42 NDPS Act, was never produced by PW1 ASI Narender Singh either before PW13 Insp. Heera Lal or before PW6 ACP Sanjeev Kumar.
7.4. Despite the fact that the car number from which the recovery was made, was mentioned in DD No.8 Ex. PW1/A, neither search warrant to conduct search of the said car was obtained by PW1 from Magistrate, nor any authorisation was taken in this regard from empowered officer u/s.41 (2) NDPS Act.
Further, even in terms of the proviso to Section 42 (1) NDPS Act, the grounds of belief were also not stated by PW1 for searching the vehicle without obtaining search warrants or authorisation. Hence, there is clear violation of Section 42(1) NDPS Act r/w. Proviso thereto.
7.5. PW1 ASI Narender Singh deposed that he was authorised to conduct raid by PW13 Insp. Heera Lal, which is not permissible u/s.41 r/w. Section 42 NDPS Act as Insp. Heera Lal is not a gazetted officer and, therefore, not empowered u/s.41(2) of NDPS Act, so as to authorise any of his subordinate to conduct proceedings u/s.42 NDPS Act. Therefore, the entire proceedings conducted by PW1 i.e. by first IO are without authorisation and cannot be relied upon against the accused. Ld. Counsel also referred to the contents of DD No.8 Ex. PW1/A, wherein he pointed out that the authorisation was given by PW13 Insp. Heeral Lal and not by an officer, empowered u/s.41(2) of NDPS Act. 7.6. Despite the fact that as per prosecution, the accused refused to get himself searched before gazetted officer or Magistrate, still, PW6 ACP Sanjeev DLSH010057882021 Page 14 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Kumar was telephonically informed by PW1, who arrived at the spot and without informing the accused of his right u/s.50 NDPS Act, got his bodily search conducted and also got the car searched. Ld. Counsel pointed out that ACP Sanjeev Kumar is not an independent witness as PW13 Insp. Heera Lal and PW6 ACP Sanjeev Kumar had categorically deposed that the secret information was shared by PW13 with PW6.
7.7. PW1 as well as other witnesses have mentioned the recovered substance as leaves, seeds and moisture grass, meaning thereby that there were no flowers or fruits of the cannabis plant in the recovered substance. In this regard, Ld. Counsel pointed to page three of cross-examination of PW1 dated 23.03.2024, wherein PW1 admitted the suggestion that no flower or fruits were found in the recovered substance. Thus, he submitted that the recovered substance do not fall within the definition of Ganja, as contained in NDPS Act. 7.8. As per the prosecution case, seal of MC was used by PW1 ASI Narender, but it has not been clarified as to why ASI Narender did not use his seal and instead use the seal of MC to seal the case property. The witness to whom the seal belongs, has not been examined by the prosecution. 7.9. Secret informer, as per the prosecution, gave detailed information regarding where and when and in which car the accused would be coming, but he failed to give any information regarding the source or the receiver of the contraband. Further, even after the arrest of the accused, the investigating agency could not connect the accused to either a source or a receiver of the allegedly recovered contraband.
7.10. PW1, PW3 and PW7 stated that PW1 had made telephonic call to PW6 (ACP) at 11.10 p.m. and he reached at the spot at 11.30 p.m., whereas PW6 stated that he received the telephonic call from PW1 at about 10.30 - 10.45 p.m. and reached at the spot around 11.00 - 11.15 p.m. DLSH010057882021 Page 15 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 7.11. As regards the production of case property and proving that the contraband seized was produced before the Court, Ld. Counsel brought to the attention of the Court the deposition of PW1 and PW3, specifically, the portion when the case property was produced, to show that as per the details of the case property produced given in both the depositions, there is no mention of the fact that the signatures of the accused were obtained on the plastic katta, in which the case property was sealed. He submitted that the signatures of the accused are taken on the seizure memo as well as other documents, but in order to connect the physical case property produced before the Court to the accused, it is essential that the said case property should also bear the signatures of the accused.
7.12. Another contradiction is w.r.t. the vehicle in which PW6 (ACP) arrived at the spot. While PW3 and PW7 stated that PW6 arrived at the spot in Maruti Suzuki Dzire, PW6 himself stated that he arrived at the spot in Maruti Ertiga.
7.13. As regards non-joining of public persons during the course of investigation, Ld. Counsel pointed out that PW6 and PW15 admittedly did not make any effort to join any public person in investigation when they arrived at the spot. Further, even PW1, PW3 and PW7 did not make sufficient efforts to join public persons, as despite the fact that the spot is near a fire brigade office, PS Shahdara, as shown in site plan Ex. PW1/G and also near a CNG Pump, as admitted by the witnesses, no effort was made to join any public witness from the said offices or CNG Pump. In this regard, Ld. Counsel specifically relied upon deposition of PW7 dated 09.12.2024 (page 3), wherein this witness admitted that none of the members of raiding team had called any person or employee from Shyam Lal College, Fire Brigade office, CNG Pump or PS Shahdara for joining DLSH010057882021 Page 16 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act investigation at the spot.
7.14. No record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW1. It could not be proved by the prosecution that the weighing machine, used to weigh the contraband at the spot, was on that day handed over to PW1 for the purpose of investigation.
7.15. PW1, PW3 and PW6 deposed that the accused was illiterate and, therefore, did not record his refusal in his own handwriting on notice u/s.50 NDPS Act, which fact is incorrect as is proved through the testimony of DW1 and DW2 during defence evidence.
7.16. PW1 during his cross-examination stated that the 2nd IO (PW15) upon arrival at the spot did not add or delete any word in the documents already prepared by PW1. However, it is found that on the seizure memos, the FIR Number of the case is mentioned, which shows that the said documents were prepared after the registration of FIR. Ld. Counsel submitted that it is not that in all the documents prepared by PW1, the FIR number is mentioned, like in the notice u/s.50 NDPS Act, there is no mention of the FIR number, but in other documents, particularly the seizure memos, which too were prepared before registration of FIR, the FIR number has been mentioned, which fact remains unexplained.
7.17. PW1 during his deposition never stated that he had prepared report u/s.57 of NDPS Act, though, the said report was subsequently exhibited during the deposition of PW6 as Ex. PW5/B. In absence of any deposition of the author of the document, namely PW1 ASI Narender Singh, regarding having prepared report u/s.57 NDPS Act, the exhibition of the same by PW6 during his deposition does not prove the document as per Evidence Act. In absence of such proof, Section 57 NDPS Act do not stand complied DLSH010057882021 Page 17 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act with.
7.18. Seal in the present case after use was handed over by PW1 to PW7 HC Rajeev and not to any public person despite the fact that the place of recovery is a busy road and there is a petrol pump and college nearby. Tampering of the case property by the police officials of the raiding team after the seizure cannot be ruled out, as the seal remained in the possession of the members of raiding team after the alleged seizure of the contraband. 7.19. As pointed out earlier, neither ASI Narender testified regarding the preparation of report u/s.57 NDPS Act, nor the Reader to ACP / PW5 ASI Rajiv Saxena stated, as to who brought the report u/s.57 NDPS Act purportedly prepared by ASI Narender.
7.20. PW6 ACP Sanjeev Kumar also failed to establish his presence at the spot as no departure or arrival entry could be produced by him to show that he had left the office to arrive at the spot. He also could not produce the log book of the government vehicle, in which he came to the spot to substantiate the fact that he actually travelled in the said vehicle to the spot on that day. Further, the investigating agency also did not make the driver of the ACP, a witness in the case, in order to prove the fact that the ACP actually came at the spot.
7.21. As pointed out earlier, PW6, in his examination-in-chief stated that he received secret information from PW13 Insp. Heera Lal, though, he admitted in his cross-examination that in the statement u/s.161 Cr.P.C., it is not mentioned that any such information was received by him from Insp. Heera Lal. Ld. Counsel pointed out that even PW13 Insp. Heera Lal never stated in his statement u/s.161 Cr.P.C. that he had telephonically intimated PW6 regarding the secret information. Thus, both these witnesses testified regarding giving of secret information by PW13 to PW6 only to fill the DLSH010057882021 Page 18 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act lacuna in the prosecution case, as it is nowhere mentioned in the charge- sheet or even in the statements u/s.161 Cr.P.C. that the secret information so received by PW1 and intimated to PW13 was transferred to PW6 and that PW6 had directed to take further action on the said information. 7.22. PW8 MHCM in his deposition stated that the case property was deposited on 09.02.2021 by PW2 Insp. Shivraj Singh, but in register no.19 Ex. PW8/A, the name of the depositor is mentioned as ASI Narender Singh, who as per the prosecution case was present at the spot at that time. This witness stated that the case property was taken by him on the directions of PW15 SI Harvir Singh for proceedings u/s.52A NDPS Act on 17.02.2021 and thereafter, on 19.02.2021, handed over the case property to PW12 Ct. Prince for taking the case property to FSL. However, there is no entry in this regard in register no.19 and, therefore, prosecution has failed to prove that the case property produced before the Magistrate on 17.02.2021 was the same case property which was seized.
7.23. PW15 in his deposition neither stated that he had directed PW8 to bring the case property to the Court of Magistrate on 17.02.2021, nor he had stated that he had asked PW12 Ct. Prince to take the case property from MHCM for depositing the same in FSL. Further, as per register no.19, there is neither any signatures of PW12 nor mention of the movement of the case property, as stated by PW8.
7.24. PW14 Dr. Adesh Kumar, Sr. Scientific Officer (FSL) admitted in his cross-
examination that he had weighed the exhibits without segregating the fruits and flowers from the vegetative material and the fruits and flowers were not weighed separately, therefore, he could not tell the quantity of fruits and flowers in the exhibits received at FSL. Ld. Counsel pointed out that all the recovery witnesses were questioned regarding segregation of fruits DLSH010057882021 Page 19 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act and flowers from the seeds and leaves, but none of the said witnesses stated that he segregated the fruits and flowers from the other material before weighing the substance. He submitted that leaves and seeds of cannabis plant are not Ganja and, therefore, without segregation of the same, the entire recovered substance cannot be said to be Ganja.
8. On 10.03.2025, Ld. Addl. Public Prosecutor made the following submissions:
8.1. The secret information in the present case was rightly recorded by PW ASI Narender Singh and not by Ct. Mohit, as Ct. Mohit is not empowered officer under section 42 NDPS Act and the first empowered officer who received the secret information was ASI Narender Singh. 8.2. The secret information was not recorded on CCTNS as CCTNS was not available at that time in Special Cell where the DD register was maintained. 8.3. DD No.8 regarding recording of the secret information was duly produced by PW1 ASI Narender Singh before PW13 Inspector Heera Lal as deposed by both these witnesses.
8.4. The proviso to section 42(1) NDPS Act was not violated as PW1 ASI Narender Singh in the rukka duly mentioned that there was not sufficent time for obtaining the search warrant or authorization as per proviso.
Hence, the grounds of his belief regarding there being not sufficient time to obtain search warrant / authorization was mentioned in the rukka itself. 8.5. When PW6 ACP Sanjeev Kumar reached at the spot, PW1 had already informed the accused about his legal right and as such there was no requirement for PW6 to again inform the accused of his legal rights as per section 50 NDPS Act. PW6 ACP Sanjeev Kumar being himself an empowered officer u/s 41(2) NDPS Act and being gazetted officer was competent to search the accused. That even otherwise as no recovery was DLSH010057882021 Page 20 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act made from the bodily search of accused, therefore the compliance of section 50 NDPS Act does not assume significance. 8.6. As far as the recovered substance is concerned, the same was analyzed by PW14 and was specifically stated to be 'ganja', therefore the layman description of the substance given by police officials cannot be the only basis of determining as to what was the recovered substance. 8.7. The secret informer is not required and in most cases is not able to gather information regarding source and receiver of contraband and therefore merely because the secret informer did not mention the source or receiver of the contraband, it does not mean that the contraband was planted upon the accused.
8.8. Though the signatures of the accused were not obtained on the pullandas seized in the presence of accused, however case number and other details were mentioned in it so as to indicate that the recovery was made with respect to the present case and none other.
8.9. Proof regarding issuing of weighing machine or regarding the logbook of PW6 Sanjeev Kumar, etc have not been produced as these documents are not material in order to prove the charges against the accused. The case property recovered and weighed at the spot was subjected to proceedings u/s 52A NDPS Act wherein the weight and the description of the seized pullanda corresponds to the weight and description mentioned in the seizure memo.
8.10. Though PW1 did not testify regarding report under section 57 of the NDPS Act, however, PW13 ACP Heera Lal and PW6 ACP Sanjeev Kumar as well as PW5 (Reader to ACP) testified regarding the report u/s 57 NDPS Act, therefore the provisions of section 57 NDPS Act were duly complied with.
DLSH010057882021 Page 21 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 8.11. That presence of PW6 ACP Sanjeev Kumar at the spot stands established by the fact that he is signatory to the seizure memo prepared at the spot. 8.12. That though PW13 and PW6 in their statement u/s 161 CrPC did not mention about the communication of secret information by PW13 to PW6, but both of them deposed in this regard in their deposition, thereby proving that the secret information was duly communicated by PW13 to PW6. 8.13. That the use of seal of MC by PW ASI Narender Singh, by itself does not create any doubt regarding the recovery, as the witness mentioned orally as well as in the document as to which seal he used and there is no rule or provision which prohibits the use of other seal by the IO, if so required. 8.14. That as far as the defence regarding the accused being literate is concerned, the accused upon being acquitted in FIR No. 135/2016, PS Nand Nagri became wiser and took the same defence in the present case with the hope that the accused would again get benefit in the facts of the present case. However, for the police officials, who were the part of raiding team, it was impossible to know at the time of giving notice under section 50 of the NDPS Act as to whether the accused is actually literate or illiterate and they had no other option but to believe what the accused said to them at that stage.
8.15. As regards other arguments and contradictions, the Ld. Addl PP submitted that they do not go to the root of the case and are minor in nature.
9. In response, Ld Counsel for accused submitted that the recording of grounds of belief in rukka is of no use as the reasons are to be recorded before search and not after search and seizure is complete. As regards notification of Delhi Administration dated 14.11.1985, Ld. Counsel submitted that despite the said notification, PW1/ASI was required to obtain authorization from officer empowered u/s 41(2) NDPS Act for proceeding to search after sunset and DLSH010057882021 Page 22 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act before sunrise. In this regard he strongly relied upon judgment titled State of Punjab Vs Balbir Singh 1994(1) RCR Criminal 737. Ld Counsel for accused further reiterated the arguments made on 27.02.2025 and 03.03.2025 and 05.03.2025 and prayed that the accused be acquitted in the facts of the present case. In support of his arguments, he relied upon following eleven judgments/orders of Hon'ble Delhi High Court and Hon'ble Supreme Court:-
a. State of Punjab Vs Balbir Singh, (supra) b. Gurjant Singh Janta Vs State of Punjab, (2013) 4 RCR(Criminal) 874 c. State of Rajasthan Vs Parmanand & Anr, (2014) 2 RCR (Criminal) 40 d. Boota Singh & Ors. Vs State of Haryana, 2021 (2) RCR Criminal 892 e. Asif Ali Vs State NCT of Delhi, 2023 DHC 768 f. Masoom & Ors. Vs State NCT of Delhi, (2015) 5 RCR (Criminal) 85 g. Rohan Malik Vs State NCT of Delhi, Bail App. No.4303/2024 dtd.13.1.2025 h. Seema Vs State NCT of Delhi Bail App No. 3391/2024 dtd 17.1.2025. i. Prithvi Pal Singh Munna Vs State, 2000 (1) JCC (Delhi) 274 j. Giri Raj Vs State, 2000 (83) DLT 201 k. Gulab Rai Chetan Vs State, B.A.No.3840/23 dtd 19.1.2024 Legal Requirement to prove the Charges
10. Accused has been charged for offences u/s.20(b)(ii)(C) of NDPS Act. Section 20 NDPS Act reads as under :
"20. Punishment for contravention in relation to cannabis plant and cannabis. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,--
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;DLSH010057882021 Page 23 of 102
SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall 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)
11. As far as contravention of the provision 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.
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;DLSH010057882021 Page 24 of 102
SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act
14. As per the definition, 'narcotic drug' includes cannabis (hemp). Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
15. The term "cannabis (hemp)" is defined in Section 2(iii) of NDPS Act, as under :
"(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom" (emphasis supplied)
16. "Cannabis (hemp)" besides other things also means Ganja i.e. the flowering and fruiting tops of cannabis plant. In the present case, the prosecution would be required to prove that the recovered substance was Ganja.
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;"
(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 'Ganja'. As per entry at serial no.55 in the said notification, the small quantity for Ganja is 1000 gms and commercial quantity is 20 Kgs.
DLSH010057882021 Page 25 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act
19. In order to prove the charges u/s.20(b)(ii)(C) 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 Ganja.
(4) That the quantity of the contraband was commercial (above 20 Kgs), for Section 20(b)(ii)(C).
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 when the investigating agency follows the statute scrupulously.1 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.
11. In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 -
BOMHC) : MANU/MH/1838/2002:
2. "In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."
DLSH010057882021 Page 26 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act
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 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 DLSH010057882021 Page 27 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 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 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 DLSH010057882021 Page 28 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 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 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 of 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 Govern- ment as is empowered in this behalf by general or special order of the State Govern- ment, 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 DLSH010057882021 Page 29 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 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 com- mission 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 con- cealed 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 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 au- thorisation 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." (em-
phasis supplied)
25. With respect to the compliance of Section 42 NDPS Act, PW3 Ct. Mohit deposed that on 08.02.2021, a secret informer came to the office and informed him that the accused would come in Swift car bearing no. DL4C-AS-8966 from Seelam Pur side towards Seema Puri via Shahdara Flyover between 10.30 - 11.00 p.m. and if raid is conducted, he can be apprehended. He took the secret informer to PW1 ASI Narender Singh. PW1 ASI Narender Singh also testified that the secret informer was produced by PW3 and the aforesaid secret information was given by secret informer to PW1. He thereafter conveyed the said secret information to PW13 Insp. Heera Lal at about 9.30 p.m., who directed him to take appropriate action. Thereafter, he got lodged DLSH010057882021 Page 30 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act DD No.8 Ex. PW1/A regarding the secret information and constituted raiding party including PW3 and PW7 HC Rajeev. The deposition of PW1 in this regard is reproduced as under :
"On 08.02.2021, I was posted as ASI in Narcotics Cell, Shahdara District. On that day at about 9:10 PM, Ct. Mohit received a secret information regarding the supply of ganja by one Farukh Chapta in a Swift car bearing No.DLACAS8966 would come from Seelampur and going towards Seemapuri via Shahdara Flyover. If raid be conducted, he can be apprehended and then Ct. Mohit alongwith secret informer came at my office Narcotics Cell, Shahdara and Ct. Mohit also produced said secret informer before me. I verified the said information of secret informer and then informed to Inspector Hira Lal and said secret informer also spoken about the said information to Inspector Hira Lal. I had given the said information to Inspector Mira Lal at about 9:30 PM. Thereafter, Inspector Hira Lal directed me to take appropriate action about the said information and conducted the raid as per said information. Thereafter, I immediately lodged the said information on DI No. 8 which is lix. PW1/A bearing my signature at point A. Thereafter, at the instruction of Inspector Hira Lal, I constituted a raiding party consisting with HC Rajeev, Ct. Mohit and myself and then I share the above said secret information with them, Thereafter, I alongwith abovesaid raiding team left for Narcotic Cell at about 9:55 PM."
26. The aforesaid deposition of PW1 is further corroborated by PW13 Insp. Heera Lal, who also testified that on 08.02.2021, at about 9.30 p.m., he received a telephonic call from PW1, who conveyed to him the secret information and that he also talked to the secret informer over telephone. He further stated that he conveyed the said information to ACP Operation Cell Sanjeev Kumar (PW6), who directed PW13 to ask PW1 to constitute a raiding party and proceed to take action on the secret information. PW13 conveyed the said directions of PW6 to PW1.
27. Even PW6 ACP Sanjeev Kumar stated in his examination-in-chief that on 08.02.2021, PW13 personally informed him about the secret information and that he directed PW13 to proceed accordingly. Relevant portion of the deposition of this witness is also reproduced as under :
"On 08.02.2021, I was posted as ACP Operation Shahdra Distt Delhi. On the same DLSH010057882021 Page 31 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act day Inspector Hira Lal at about 9.45 pm to 10.00 pm, informed me personally regarding a secret information that a person with ganja could be apprehended near Shyam Lal College. I directed Inspector Hira Lal to proceed immediately."
28. The Court has reproduced the aforesaid portion of testimonies of PW1 and PW6, for a reason and the reason is that it was argued by the Ld. Counsel for the accused that neither PW1 stated that he was authorised by PW6 to conduct investigation, nor PW6 (ACP) deposed that he had specifically directed PW13 to direct PW1 to conduct further proceedings on the secret information. Ld. Counsel submitted that as per Section 41(2) of the NDPS Act, the authorisation to proceed further on the secret information had to be given specifically to an official not below the rank of Peon, Sepoy or Constable by the gazetted officer i.e. ACP, which has not been done in the present case as the ACP (PW6) never authorised PW1 specifically to proceed further on the secret information in terms of Section 41(2) of NDPS Act.
29. In light of the aforesaid argument and the deposition of PW1, PW6 & PW13, the question before the Court is whether PW1 ASI Narender Singh was authorised to take action u/s.42(1) on the secret information?
30. It may be noted that PW6 is ACP Sanjeev Kumar (ACP Operation Cell), being ACP is a gazetted officer in Delhi Police. As per Section 41(2) NDPS Act r/w. Notification dated 14.11.1985, the said officer is empowered u/s.41(2) of NDPS Act to authorise any officer subordinate to him, but superior in rank to Peon, Sepoy or a Constable to take action u/s.42 NDPS Act. The said notification is reproduced as under :
FINANCE (GENERAL) DEPARTMENT NOTIFICATIONS Delhi, the 14th November, 1985 No. F.10(76)/85-Fin. (G)i In exercise of the powers conferred by sub-section (2) of section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) read with the Government of India, Ministry of Home Affairs, New Delhi Notification No. S.O. 818(E) dated 8-11-1985 the Administrator of the Union Territory of Delhi is pleased to empower all Gazetted Officers of the following Departments of Delhi DLSH010057882021 Page 32 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable, under Chapter IV of the said Act or that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place within the Metropolitan Area of Delhi, to authorise any officer subordinate to him but superior in rank to a Peon, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building conveyance or places :
1. Revenue Department.
2. Drugs Control Department
3. Excise Department, and
4. Police Department.
31. From the testimony of PW1, as well as the testimony of PW6 as reproduced above, it is clear that both the said witnesses did not talk to each other before the raiding team was constituted. PW1 did not mention in his examination-in- chief that PW13 had informed him that PW6 has directed PW13 to communicate to him that he has been so authorised to conduct proceedings u/s.42(1) NDPS Act by PW6 u/s.41(2) NDPS Act. In his cross-examination, PW1 categorically admitted that he constituted a raiding team on the direction of PW13 Insp. Heera Lal2. Further, even PW6 in his deposition did not say that he had specifically directed PW13 to communicate to PW1 that PW1 has been authorised by PW6 to conduct further proceedings u/s.42(1) of NDPS Act on the secret information. It may also be noted here that in the statement u/s.161 Cr.P.C. of PW6, it is not mentioned that he had even directed PW13 to conduct further proceedings. Even in the statement u/s.161 Cr.P.C. Mark PW13/1 of PW13, it is not mentioned that he had conveyed the secret information to PW6 and that PW6 had directed him to direct PW1 to conduct 2 Page 5 of deposition dated 19.12.2023 : "I constituted the raiding team on the direction of Insp. Heera Lal".
DLSH010057882021 Page 33 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act further proceedings on the secret information. Both PW63 and PW134 were questioned in this regard during their cross-examination and from their cross- examination it is clear, that the fact that PW13 had conveyed the secret information to PW6 and that PW6 had authorised PW1 to conduct further proceedings u/s.42(1) NDPS Act is missing in their statements u/s.161 Cr.P.C. Thus, there is substance in the argument of Ld. Counsel for accused that PW6 ACP Sanjeev Kumar had not duly authorised PW1 ASI Narender u/s.41(2) NDPS Act to conduct proceedings i.e. search, seizure and arrest u/s.42(1) NDPS Act. In this regard, the Court would like to refer to para-26 of judgment titled Darshan Singh Vs. State of Punjab, 2024 INSC 19. In the said case, the Hon'ble Full Bench of the Apex Court observed that prosecution cannot seek to prove a fact during trial through a witness, which such witness had not stated to police during investigation. Para 26 of the said judgment is reproduced as under :
"If the PWs had failed to mention in their statements u/s 161 CrPC about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon.3
Page 2 of deposition dated 06.08.2024 : "I have read over and gone through my statement u/s 161 CrPC recorded by the 10. It is correct that I had not stated in my statement u/s 161 CIPC given to the IO that on 08.02.2021 Inspector Hira Lal had given the information to me personally at about 9.40 to 10.00 pm that a person could be apprehended near Shyam Lal College. It is correct that I had not stated in my statement u/s 161 CrPC given to the IO that I had directed Inspector Hira Lal to take immediate action. It is wrong to suggest that ASI Narender had not conveyed any information with regard to any secret information either personally or telephonically and for the said reason I had not stated the same in my statement us 161 CPC. It is wrong to suggest that I had not directed or authorised ASI Narender to proceed further for the purpose of further investigation in compliance of 42 NDPS Act. It is wrong to suggest that I am the improving my statement with regard to the compliance of section 42 NDPS Act in order to cover up the lacunae and lapses in the investigation and which has already come on record during the deposition of the members of raiding team."4
Page 3 of deposition dated 13.11.2024 : "I do not remember whether I asked ASI Narender or secret informer in regard to the source of contraband nor I asked about the fact that to whom the accused is going to supply the abovesaid contraband. I have gone through my statement u/s 161 CrPC when it was recorded. I had stated to the IO in my statement u/s 161 CrPC that after receiving the secret information from ASI Narender telephonically I immediately gave this information to ACP / Operation cell Sanjeev Kumar who directed me to direct ASI Narender to form the raiding team and to proceed legally. (Witness is shown his statement u/s 161 CrPC). Confronted with statement u/s 161 CrPC dt 09.02.2021 mark PW13/1 wherein it is not so recorded. It is wrong to suggest that I am improving my statement to fill in the lacunae in the prosecution case. I do not remember whether I had specifically stated about DD no.8 & 9 in my statement to the IO. It is correct that raiding team was constituted on my direction."
DLSH010057882021 Page 34 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance. [See : (i) Rohtash Vs. State of Haryana, (2012) 6 SCC 589 (ii) Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra, 2011 (72) ACC 699 (SC). (iii) Rudrappa Ramappa Jainpur Vs. State of Karnataka, (2004) 7 SCC 422 (iv) Vimal Suresh Kamble Vs. Chaluverapinake, (2003) 3 SCC 175]"
32. In light of the aforesaid discussion, the Court comes to the conclusion that PW6 ACP Sanjeev Kumar (gazetted officer) did not duly authorise PW1 ASI Narender Singh u/s.41(2) NDPS Act, to take action on the secret information u/s.42(1) of NDPS Act.
33. However, does that mean, that PW1 ASI Narender Singh was not competent to take action u/s.42(1) of NDPS Act on the secret information received from the informer?
34. The answer to that question would have been simple in absence of another notification dated 14.11.1985, which is reproduced as under :
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub- section (I) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of 1985) read with the Government of India, Ministry of Home Affairs Notification No.S.O. 818(E) dated the 8th November, 1985 the Administrator of the Union territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi, between sunrise and sunset, to :
(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 material 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 the said Act and any document or other article which he has reason to believe may furnish evidence DLSH010057882021 Page 35 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; 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 Chapter IV of the said Act relating to such drug or substance;
Provided 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 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
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
35. As per the aforesaid notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW1 ASI Narender Singh, being an Assistant Sub-Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act.
36. According, to the aforesaid notification and bare reading of Section 42(1), it is clear that PW1 ASI Narender Singh, being an Assistant Sub-Inspector in Delhi Police was not required to obtain any authorisation from PW3 ACP Sanjeev Kumar before proceeding to take action u/s.42(1) of NDPS Act on the secret information. Therefore, the argument that PW1 ASI Narender Singh was not competent to conduct search, seizure and arrest as PW6 ACP Sanjeev Kumar had not specifically authorised PW1 ASI Narender Singh to conduct search, seizure and arrest is found to be devoid of merits.
37. Ld. Counsel for the accused on 10.03.2025 while addressing final DLSH010057882021 Page 36 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act arguments submitted that despite the aforesaid notification, the ASI was required to obtain authorisation from officer empowered u/s.41(2) NDPS Act for proceeding to search after sunset and before sunrise. In this regard, he relied upon judgment of the Hon'ble Apex Court in Balbir Singh (supra). In para-26 of the said judgment, the Hon'ble Court has summarized the conclusions drawn in the said judgment, therefore, the said para is reproduced as under :
"26. 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 NDPS 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. PC 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 officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the precisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal.
(2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
(2C) Under Section 42(1) the empowered officer if has a prior information given DLSH010057882021 Page 37 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. PC fails to strictly comply with the provisions of Sections 100 and 165 Cr. PC including the requirement to record-reasons, such failure would only amount to an irregularity.
(4B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. PC namely Sections 100 and 165 Cr. PC and if there is no strict compliance with the provisions of Cr. PC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information, the empowered officer or authorised of officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made an such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.
After being so informed whether such person opted for such a course or not would be a question of fact.
DLSH010057882021 Page 38 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory.
If there in non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."
(emphasis supplied)
38. In the aforesaid judgment, the Hon'ble Apex Court has mentioned that an officer empowered u/s.42(1) of the NDPS Act, may without a warrant, arrest or carry out search between sunrise and sunset, but if such officer has to carry out search between sunset and sunrise, he must record the ground of his belief. The judgment never says that if an officer empowered u/s.42(1) of the NDPS Act cannot proceed to the spot to take required action even after sunset without authorisation. In the present case, PW1 ASI Narender Singh, being officer empowered u/s.42(1) of NDPS Act, as per the aforesaid notification, rightly proceeded to take action on the secret information even after the sunset and rightly called PW6 ACP Sanjeev Kumar to the spot before carrying out the search, seizure and arrest of the accused.
39. Whether the secret information is to be recorded by the first person in the office, who receives the information OR it is to be recorded by the official empowered or competent to take action u/s.42(1) NDPS Act?
40. In the present case, as per the deposition of PW1 and PW3, the secret informer met PW3 at Narcotic Cell office at 9.10 p.m. and gave him the secret information. He took the secret informer to PW1 ASI Narender Singh to whom secret informer disclosed the secret information and it is ASI Narender Singh, who got recorded DD No.8 Ex. PW1/A as regards the secret information.
41. It was argued by Ld. Counsel for the accused that as PW3 had received the DLSH010057882021 Page 39 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act secret information, hence, as per the mandate of Section 42, he must have recorded the secret information and that recording of secret information by PW1 ASI Narender Singh amounts to violation of the provisions of Section 42(1) of NDPS Act.
42. In this regard, Ld. Counsel for the accused relied upon bail order in Gulab Rai @ Chetan (supra) passed by the Hon'ble Delhi High Court. Paras 6 to 8 of the said order are reproduced as under :
"6. The undisputed facts are that while the first information was received by HC Amit but it was only Insp. Rakesh Duhan who had reduced the information into writing, which is contrary to the provisions of Section 42 of NDPS Act and the binding dictum of the Supreme Court in Mohammed Nisar Holia (supra). It has been held in the said case by the Supreme Cour that an officer who first receives information is bound to reduce the same in writing and not the person who hears about it. Relevant observations of the Supreme Court are as follows:-
"19. In the instant case, the statutory requirements had not been complied with as the person who had received the first information did not reduce the same in writing. An officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout. ........."
7. In Sarija Banu and Another v. State through inspector of police, 2004 SCC OnLine SC 264, the Supreme Court observed that compliance with Section 42 of NDPS Act is mandatory and this is a relevant fact which should have engaged the attention of the Court below while considering the bail application. Following the said judgment, the Bombay High Court in Rajaram Kadu (supra), observed as under:-
"9. I have perused the FIR and other documents which form part of the charge sheet and which have been annexed with the application. As far as submission with regard to the discrepancy in the C.A.Report and de- sealing of the articles is concerned, I am of the opinion that the said issue will be the matter of evidence and can be raised during the course of trial. As far as non compliance with Section 42 of the Act is concerned, it can be seen that the information was received by Police Naik Bhagwat Saudane. The FIR does not indicate that he had reduced the information into writing or provided any copy of the information to his superior officer. The statement of API Divekar also does not indicate that he had reduced the information into writing or forwarded the same to his DLSH010057882021 Page 40 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act superior officer. However, the prosecution is relying upon the entries made by Senior P.I.Sable of Ulhasnagar in the station diary to show the compliance of Section 42. That cannot be considered to be the compliance of Section 42 of NDPS Act. The point which is canvassed by learned counsel for Applicant is that the person who had received the information had not forwarded it to the superior officer and there is nothing on record to indicate that any such information was forwarded in writing. It is, therefore, rightly contended that there is non compliance of Section 42(2) of NDPS Act. As observed by the Apex Court in the case of Sarija Banu (supra), the issue with regard to non compliance of Section 42 of NDPS Act can be considered at the stage of bail. I have also perused the decisions of this Court relied upon. The Order is downloaded from the DHC Server on 25/01/2024 at 01:22:00 by learned advocate for Applicant wherein this Court had granted bail for non compliance of Section 42 of NDPS Act."
8. In view of the aforementioned judgments, this Court agrees with the counsel for the Petitioner that provisions of Section 42 of NDPS Act have been followed more in violation than in compliance. Admittedly HC Amit, was the recipient of first information but the secret information was reduced in writing by Insp. Rakesh on a mere hearsay. While the prosecution tends to rely on the entry lodged in CCTNS by Insp. Rakesh, to show compliance of Section 42 of NDPS Act, in my view, this cannot be considered as an action compliant with the mandate of the said provision inasmuch as this does not controvert the contention of the Petitioner that the first recipient of the information reduced the same in writing."
(emphasis supplied)
43. It may be seen that in the aforesaid case, the secret information was received by HC Amit, who being an officer superior in rank to Constable was empowered u/s.42(1) of NDPS Act vide notification dated 14.11.1985, as reproduced above. However, in the present case, the information was received by Ct. Mohit (PW3) who is neither empowered by the aforesaid notification, nor can be authorised by an officer empowered u/s.41(2) to take action on the secret information, being a constable. Moreover, in that case the information was recorded by Inspector Rakesh on a mere hearsay, whereas in this case PW-1 ASI Narender Singh had himself talked to the secret informer in person.
DLSH010057882021 Page 41 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act
44. Therefore, the ratio laid down in the aforesaid case cannot apply to the facts of the present case, as in the present case, the first official empowered u/s.42 NDPS Act, who received the secret information is ASI Narender Singh, who is the same person, who got DD No.8 Ex. PW1/A lodged as regards the secret information.
45. Whether the information so received u/s.41 or 42 of NDPS Act is required to be taken down in writing by the concerned official in his own handwriting?
46. It was also one of the arguments of the Ld. Counsel for the accused that PW3 Ct. Mohit, who received the secret information from secret informer did not record or take down the said secret information in writing in his own handwriting, as per the requirement of Sections 41 as well as 42 of the NDPS Act.
47. It is found that Section 41(2) of NDPS Act uses the words "information given by any person and taken in writing" and Section 42 also uses similar phrase i.e. "information given by any person and taken down in writing".
48. In view of the said phrase used in the two sections, the legal issue that has been raised before the Court is : Whether the information is to be taken down in writing by the concerned official in his own handwriting?
49. From the bare perusal of the sections and the aforesaid phrases, it is clear that it is not mentioned either in Section 41 or in Section 42 of NDPS Act that the information so received by the empowered official is to be recorded by the empowered official in his own handwriting. If the intention of the legislature was that the receiver of the information should take down the information in his own handwriting then it could have very well stated so, while framing the provisions of NDPS Act. However, from the reading of the sections, it seems that the intention of the legislature was to ensure that DLSH010057882021 Page 42 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act any action u/s.41(2) or u/s.42(1) of the NDPS Act is taken by the empowered officer, only after the information so received is recorded on the paper. What the legislature intends is that the powers under the said sub-section should not be used merely on the basis of oral statements. If the intention of the legislature had been that the said information should be recorded by the empowered/authorised officer in his own handwriting, then the aforesaid phrases could have been easily worded as "information given by any person and taken in writing by such officer" and Section 42 also uses similar phrase i.e. "information given by any person and taken down in writing by such officer". However, if the legislature has not used the said phrase and has not specifically stated that it is such officer himself, who should take down the information in his own handwriting, then it would not be appropriate for this Court to read the said sections in such manner.
50. In the present case, the secret information so received by PW3 Ct. Mohit was further communicated to PW1 ASI Narender Singh as the secret informer was produced before him and PW1 ASI Narender Singh, being competent to take action u/s.42(1) of NDPS Act in view of the aforesaid notification dated 14.11.1985, recorded the said secret information in DD No.8 Ex. PW1/A, which he directly received from the secret informer.
51. Whether the recovery from the vehicle / conveyance used by the accused is illegal due to non-compliance of the proviso to Section 42(1) NDPS Act for want of warrant / authorisation u/s.41 NDPS Act as the recovery was made after sunset and before sunrise?
52. The aforesaid question has arisen in the present case as the recovery of contraband (Ganja) was not made upon bodily search of the accused, rather, it was made from the vehicle, which the accused was driving i.e. Swift car bearing no. DL4C-AS-8966. The said vehicle was stopped and DLSH010057882021 Page 43 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act searched at around 10.50 p.m. on 08.02.2021. Therefore, unambiguously the search of the vehicle / conveyance of the accused was conducted by the raiding party after sunset and before sunrise. Ld. Counsel in order to emphasise the point that the recovery from a private vehicle even in a public place requires compliance of Section 42 NDPS Act and would not fall u/s.43 of the NDPS Act, relied upon judgment of Boota Singh (supra) of the Hon'ble Apex Court. Admittedly, in the present case the vehicle from which the recovery was made is not a public transport vehicle, hence, as per the said judgment, compliance of Section 42 and not Section 43 would be required. Thus, the discussion hereinafter is w.r.t. the fact whether the provisions of Section 42 were complied with or not in the present case qua the search made from the vehicle of the accused.
53. Grounds of belief : The said recovery has been challenged by the Ld. Counsel for the accused by arguing that the alleged recovery was made after sunset from a vehicle / conveyance, therefore, the 2nd proviso5 to Section 42(1) applies to the facts of the present case, meaning thereby that the officer conducting the search without warrant or authorisation, needs to record the grounds of his belief before conducting the search of the conveyance, which has not been done in this case by PW1 ASI Narender Singh.
54. On the other hand, Ld. Addl. PP submitted that the proviso to Section 42(1) NDPS Act was not violated as PW1 ASI Narender Singh duly mentioned in the rukka that there was not sufficient time for obtaining the search warrant or authorisation as per proviso. He submitted that the grounds of 5 "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."
DLSH010057882021 Page 44 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act his belief regarding there being not sufficient time to obtain search warrant or authorisation was mentioned by PW1 in the rukka itself.
55. At this juncture, the Court would like to reproduce the 2nd proviso to Section 42(1) NDPS Act :
"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."
56. As per the aforesaid proviso, the search of a vehicle / conveyance between sunset and sunrise is to be conducted AFTER recording the grounds of belief. The mentioning of the reasons in rukka, after the search is conducted, either in the seizure memo, or in the rukka, does not amount to compliance of the proviso to Section 42(1) NDPS Act. Accordingly, the arguments of the Ld. Addl. PP that PW1 ASI Narender Singh had duly mentioned the grounds of his belief in the rukka and, therefore, duly complied with the proviso to Section 42(1) NDPS Act before the search of the conveyance / vehicle, being driven by the accused is found to be devoid of merits.
Authorisation by ACP Sanjeev Kumar :
57. Another interesting argument was raised by the Ld. Addl. PP as he submitted that in the present case, ACP Sanjeev Kumar had initially authorised the police officials to proceed as per law in terms of the secret information, when the secret information was shared with him, which authorisation is u/s.41(2) of NDPS Act and extends to search of a conveyance whether by day or by night. He further submitted that in the facts of the present case, by the time the stage to search the vehicle was reached, ACP Sanjeev Kumar had himself arrived at the spot and upon his directions, the search of the conveyance was conducted, therefore, there DLSH010057882021 Page 45 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act was due authorisation as required by the second proviso to Section 42(1) of NDPS Act.
58. Firstly, the Court shall discuss the argument of Ld. Addl. PP that PW6 ACP Sanjeev Kumar had initially authorised the police officials to proceed as per law in terms of the secret information, when the secret information was shared with him, which authorisation is u/s.41(2) of NDPS Act and extends to search of a conveyance whether by day or by night.
59. As stated earlier, PW6 ACP Sanjeev Kumar had not specifically authorised any official u/s.41(2) of NDPS Act to take further steps on the secret information u/s.42 r/w. 41(3) of NDPS Act. As observed earlier, there was no authorisation by PW6 ACP Sanjeev Kumar to ASI Narender Singh u/s.41(2) NDPS Act and the same was also not required as PW1 ASI Narender Singh was empowered by notification dated 14.11.1985 (as reproduced earlier), to take action on a secret information. In absence of authorisation by PW6 ACP Sanjeev Kumar, to ASI Narender Singh u/s.41(2) NDPS Act, ASI Narender Singh was not authorised u/s.41(2) r/w. Section 42(1) of NDPS Act to conduct the search of the Swift car of the accused being driven by the accused by day or by night, as argued by the Ld. Addl. PP.
60. Thus, the argument of Ld. Addl. PP that PW1 ASI Narender Singh was authorised u/s.41(2) of NDPS Act and was, therefore, competent and authorised to search the vehicle of the accused persons, whether by day or by night, is found to be devoid of merits.
61. However, in light of the second leg of the argument, another question that needs to be answered by the Court in this regard is, whether the search of the vehicle of accused by PW1 in presence of an officer empowered u/s.41(2) NDPS Act i.e. ACP Sanjeev Kumar (PW6), amounts to implied, DLSH010057882021 Page 46 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act if not express, authorisation by such officer to conduct the search of the vehicle / conveyance after sunset and before sunrise?
62. As per Section 41(2) of NDPS Act r/w. Notification dated 14.11.1985, PW6 ACP Sanjeev Kumar, being an ACP and a gazetted officer in Delhi Police was empowered to authorise any police official subordinate to him and superior in rank to a Peon, Sepoy or a Constable to search a building or conveyance. As per the said section, PW6 ACP Sanjeev Kumar could have authorised PW1 ASI Narender Singh to conduct the search of the conveyance of the accused and there is nothing in the section to show that such authorisation has to be in writing and the same cannot be by way of an oral direction.
63. In the present case, as per the deposition of PW6, he reached at the spot at about 11.00 - 11.15 p.m., where he found PW1 ASI Narender Singh and other members of the raiding team present along with the accused and Swift car. The testimony of this witness being relevant on this aspect, is reproduced as under :
"At about 10.30- 10.45 pm I received a telephonic call from ASI Narender that he had apprehended one person in a Maruti Swift car at Shyam Lal college flyover. ASI Narender asked me to reach the spot for search of the accused. I immediately reached there and I came to know that one accused Farukh @ Chapta had been apprehended by ASI Narender with the help of HC Rajiv and Ct. Mohit. After stepping out from the car, accused Farukh @ Chapta brought out one plastic katta from back side of the car. After opening the plastic katta, we found ganja. I asked ASI Narender to take the search of the car if there was any other material in the same but nothing more was recovered. After measuring we found that there was 23.500 kgs ganja. Case property was sealed with the seal of MC and it was seized by ASI Narender vide seizure memo already Ex.PW1/E which bears my signature at point C. I directed ASI Narender to complete the work and therefore I left for my office."
64. In the aforesaid deposition, the witness categorically stated that ASI Narender Kumar telephonically contacted him and requested him to come to the spot for the personal search of the accused and also for the search of DLSH010057882021 Page 47 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act his vehicle. PW1 waited for this witness at the spot and it is only after this witness reached at the spot, that in his presence, personal search of the accused persons was conducted and thereafter, PW1 searched the Swift car, wherein one katta was found in the rear seat of the car. Though, PW6 has not categorically stated that he authorised PW1 ASI Narender Kumar to conduct the search of the vehicle of accused, however, from the deposition of this witness as well as members of the raiding team, it is clear that after the accused was apprehended, the raiding party waited for arrival of this witness and only after he reached at the spot that the raiding party proceeded further to conduct the bodily search of the accused as well as the search of the vehicle, in which he was apprehended. From the deposition of this witness, it is clear that he impliedly, if not expressly, authorised PW1 ASI Narender Kumar to conduct the search of the vehicle by reaching at the spot upon being called by PW1 ASI Narender Kumar and by being a witness to the search of the vehicle. The testimony of this witness is further corroborated by the fact that the seizure memo of the contraband Ex. PW1/E regarding seizure of the contraband from Swift car no. DL4C-AS-8966, bears the signatures of this witness at point C.
65. It may be noted that as per section 41 (2) NDPS Act, an officer empowered under the said section, "may authorise any officer subordinate to him, but superior in rank to a peon, sepoy or constable to arrest such a person or search a building, conveyance or place, whether by day or by night". Meaning thereby that in case, PW1 ASI Narender Singh wanted to obtain authorisation before hand to search the vehicle of the accused, then being subordinate to ACP Sanjeev Kumar (PW6), he would have to seek authorisation to search the vehicle from PW6 ACP Sanjeev Kumar. However, rather than seeking an authorisation before hand, PW1 after DLSH010057882021 Page 48 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act stopping the accused, informed ACP Sanjeev Kumar about the apprehension of the accused and called him at the spot. PW1 waited for the arrival of ACP Sanjeev Kumar before conducting the search of the vehicle of the accused. It was only after ACP Sanjeev Kumar arrived at the spot and only on his directions, the vehicle of the accused was searched. Thus, the authorisation required from a superior empowered officer was impliedly taken by PW1 ASI Narender by calling ACP Sanjeev Kumar at the spot before conducting the search on his directions and in his presence. Therefore, in opinion of this Court, the arrival of ACP Sanjeev Kumar at the spot and the search of the vehicle upon his directions amount to authorisation by a superior empowered officer u/s.41(2) of NDPS Act to a junior officer i.e. ASI Narender, who is superior in rank to a peon, sepoy or a constable, to search a conveyance whether by day or by night.
66. As it has been held that there was implied, if not express, authorisation by ACP Sanjeev Kumar who arrived at the spot for the search of the vehicle of the accused, hence, the reliance of Ld. Counsel on para-11 of the bail order in Asif Ali (supra) of Hon'ble Delhi High Court is found to be misplaced.
Whether ACP Sanjeev Kumar, not an independent witness?
67. It was one of the arguments of the Ld. Counsel for accused that PW6 ACP Sanjeev Kumar is not an independent witness as PW13 Insp. Heera Lal and PW6 Sanjeev Kumar have categorically deposed that the secret information was shared by PW13 with PW6. However, the said argument is devoid of merits for the reason that Section 41(2) NDPS Act categorically states that an officer empowered u/s.41(2) NDPS Act, "may authorise any officer subordinate to him", which means that the empowered officer of a particular department can only authorise an officer DLSH010057882021 Page 49 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act of that department, who is subordinate to him, but is superior in rank to a peon, sepoy or constable. Therefore, the said argument does not hold water.
68. Whether presence of PW6 ACP Sanjeev Kumar during search of the vehicle, makes him Investigating Officer, thereby liable to comply with Section 57 NDPS Act?
69. An argument was raised that the presence of PW6 at the spot makes him a member of the raiding team and being the senior most member of the raiding team, as the recovery was allegedly made from the vehicle in his presence, he was obliged to comply with Section 57 of NDPS Act and send a report of the seizure to his immediate superior officer within 48 hours, which he did not do.
70. As far as the said argument is concerned, the same is found to devoid of merits as merely the presence of a gazetted officer empowered u/s.41(2) NDPS Act at the time of the bodily search of the suspect or the search of the suspected conveyance or vehicle, does not make the said official a member of the raiding team or In-charge of the investigation. It may be noted that the investigation in the present case was carried out by PW1 ASI Narender Singh as he is competent to take action on secret information as per Section 42(1) of NDPS Act r/w. Notification dated 14.11.1985. It may be noted that Section 41(2) also provides that an empowered gazetted officer "may authorise any officer subordinate to him", which indicates that an officer of gazetted rank empowered u/s.41(2) NDPS Act can authorise an officer of his own department, who is subordinate to him u/s.41(2) NDPS Act. In the present case, PW6 being ACP in Operation Cell, Delhi Police, being empowered u/s.41(2) of NDPS Act could authorise any officer subordinate to him, but superior in rank to a Peon, Sepoy or a Constable, to search a conveyance, whether by day or by night.
DLSH010057882021 Page 50 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act PW6 being so empowered was called at the spot and he by his presence at the spot, impliedly as well as expressly authorised PW1 to conduct the search of the vehicle of the accused. Therefore, merely because PW6 was called at the spot does not make him the Investigating Officer of the case.
71. Going by the said argument, if a Magistrate is called to the spot for the search of a suspect, then such magistrate would become Investigating Officer or Incharge of investigation, which cannot be the case.
72. Hence, the aforesaid argument that it was the duty of PW6 ACP Sanjeev Kumar to prepare a report u/s.57 NDPS Act and send it to his immediate official superior within 48 hours is found to be devoid of merits.
73. Whether recording of secret information by PW1 ASI Narender Singh in handwritten Roznamcha (DD No.8 Ex.PW1/A) and not on CCTNS adversely affects the prosecution case?
74. It was argued by Ld. Counsel for the accused that the secret informer was produced before PW1 ASI Narender Singh, but even ASI Narender did not record the said secret information on CCTNS, rather, he got the information recorded in a handwritten Rojnamcha (DD No.8 Ex.PW1/A), which can be easily manipulated, ante-dated and ante-timed.
75. Ld. Addl. PP for State on the other hand submitted that secret information could not be recorded at CCTNS as CCTNS was not available at that time at special cell where the secret information was recorded vide DD No.8.
76. Perusal of record reveals that question in this regard were put to the witnesses in their cross-examination and two witnesses i.e. PW7 HC Rajeev Kumar and PW13 ACP Heera Lal specifically stated that CCTNS was not operational in their unit at the time when DD No.8 and 9 were lodged. It may be noted that DD No.8 Ex.PW1/A and DD No.9 Ex.PW1/B were lodged at Narcotices Cell, Shahdara whereas the other DDs i.e. 10A, DLSH010057882021 Page 51 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 13A and 30A were lodged at PS Shahdara, where CCTNS being available, the said entries were made on CCTNS. Therefore, the argument of Ld. Counsel that DD No.8 with respect to the secret information and DD No.9 with respect to departure of the raiding party, were deliberately not lodged on CCTNS is found to be devoid of merits.
77. Whether DD No.8 Ex.PW1/A with respect to recording of secret information was produced by ASI Narender Singh before his immediate official superior in compliance of Sec. 42(2) of NDPS Act?
78. It was argued by Ld. Counsel for the accused that DD No.8 was neither produced before PW13 Insp. Heera Lal nor before PW6 ACP Sanjeev Kumar. Ld.Addl. PP for State on the other hand submitted that the said DD entry produced by PW1 before PW13 as deposed by both these witnesses.
79. Perusal of the record reveals that DD No.8 Ex.PW1/A bears the signatures of PW1 at point A and that of PW13 at point B. PW13 in his examination in chief categorically stated that in compliance of Sec.42(2) of NDPS, DD No.8 was recorded and the same bears his signatures at point B. The witness was cross-examined at length but nothing came in his cross- examination to doubt the fact that the said DD entry Ex.PW1/A does not bear his signatures.
80. In the cross-examination, PW13 stated that when he received the secret information telephonically from ASI Narender, he was not at his office and was on duty elsewhere. He also stated that he did not remember the secret information was put before him in written. Based on the said cross- examination, the compliance of Sec.42(2) of NDPS Act was challenged by the accused. However, it may be noted that sec. 42(2) of NDPS Act the secret information so recorded u/s 42(2) NDPS Act is to be sent to immediate official superior within 72 hours. Therefore, merely because DLSH010057882021 Page 52 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act PW3 was not present in the office and was present elsewhere, does not mean that DD No.8 was not placed before or not sent to him within the time limit of 72 hours as mentioned in Sec.42(2) of NDPS Act. The said arguments of Ld. Defence counsel is found to be devoid on merits.
81. Accordingly, it is held that the provisions of section 42 were duly complied with in the facts of the present case.
Discussion on the point of compliance of Section 50 of NDPS Act
82. 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. (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)
83. As per prosecution case, after apprehension of the accused, he was served with the mandatory notice under Section 50 of the NDPS Act and only after his refusal to avail his legal rights, his search was carried out. However, in his statement recorded under Section 313 Cr.P.C., in answer to question no.11, the accused denied that he was given notice u/s.50 NDPS Act and that his refusal was recorded on the same. In his defence, in answer to question no.42, the witness stated that the paperwork was done by the police officials at Police DLSH010057882021 Page 53 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Station and that his refusal on the notice u/s.50 NDPS Act was written by the IO as per his own convenience, though, he was competent to read and write in Hindi language.
84. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused?
85. PW1 ASI Narender Singh in his deposition categorically stated that after the accused was apprehended, he was informed about the identities of the members of raiding team and he further informed accused that as per secret information, he may be carrying Ganja and his search is required to be conducted, besides the search of his vehicle. He further informed the accused that he has a legal right to search the members of raiding team. He also stated that his search as well as search of his vehicle can be conducted in the presence of a Gazetted Officer or a Magistrate, or that he can also be taken to the nearest Gazetted Officer or a Magistrate. PW1 prepared notice u/s.50 of NDPS Act in his handwriting and handed over the same to the accused, who refused to avail his legal rights. As the accused stated that he was not well literate, hence his refusal was recorded by PW1, upon which his signatures were obtained. Testimony of this witness on this aspect is as under :
"I introduced myself and my team to the accused. I also informed him about the information of carrying illegal contraband in his person or in the said car by him and the accused has been searched by me.
Thereafter I apprised him for his legal right by saying that he can get himself searched as well as search the raiding team in the presence of any Gazetted officer or the Magistrate by calling them at the spot or by producing him before them. I also apprised him that who is the gazetted officer or Magistrate in simple language. I prepared notice under section 50 of the NDPS Act one in original and one carbon copy. I also apprised him about the notice under section 50 of the NDPS Act and handed over the original copy to the accused and took his signature on the carbon copy (which is in hindi). However accused refused to get himself searched in the presence of any Gazetted DLSH010057882021 Page 54 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act officer or the Magistrate as well as to search the raiding team in the presence of any Gazetted officer or the Magistrate. Thereafter the said denial of accused was noted down by me in my handwriting on the notice under section 50 NDPS Act as the accused told me that he is not so much literate and he can only put his signature. The carbon copy of the notice under section 50 of the NDPS Act is Ex. PW1/C which bears my signature at point A. The denial of the accused noted by me in my handwriting is marked 'X'. Accused put his signature at point B and B1 on the said notice."
86. The witness was cross-examined as regards notice u/s.50 NDPS Act and he deposed as under :
"It is correct that word 'najdik' is not mentioned in the notice already Ex.PW1/C under section 50 of the NDPS Act to the accused. It is correct that I did not mention in notice Ex.PW1/C that from where the accused received the contraband and where he has about to deliver. It is correct that the reply to the notice by the accused with regard to his refusal is in my handwriting. It is correct that accused revealed to me that he is an illiterate person and this fact is also written in reply to notice under section 50 of the NDPS Act. It is wrong to suggest that accused was not an illiterate person or that he had studied upto 10th class. It is wrong to suggest that the signatures of the accused were taken on blank papers which were later on converted into incriminating evidence against the accused. It is wrong to suggest that accused did not found in possession of any contraband or that the same was planted upon him in order to falsely implicate in the present case. It is wrong to suggest that accused never refused to be searched in presence of Magistrate or any Gazetted officer or that the refusal was written by me as per my convenience which suits of the case of the prosecution or in order to falsely implicate the accused in the present case.
It is correct that before serving notice under section 50 of the NDPS Act to the accused, I did not call any senior police officers such as ACP and Inspector at the spot."
87. The compliance of Section 50 NDPS Act was challenged by Ld. Counsel for the accused on the following grounds :
87.1. Ld. Counsel submitted that despite the fact that as per prosecution, the accused refused to get himself searched before gazetted officer or Magistrate, still, PW6 ACP Sanjeev Kumar was telephonically informed by PW1, who arrived at the spot and without informing the accused of his right u/s.50 NDPS Act, got his bodily search conducted and also got the car searched.DLSH010057882021 Page 55 of 102
SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act In support of the aforesaid argument, Ld. Counsel for the accused relied upon judgment titled State of Rajasthan Vs. Parmanand, AIR 2014 SC 1384. Para-15 of the said judgment being relevant to the arguments addressed by Ld. Counsel, is reproduced as under :
"15. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed."
A perusal of the aforesaid paragraph would reveal that in the said case, the accused was informed that he could be searched before the nearest Magistrate or before nearest Gazetted Officer or before J.S. Negi, the Superintendent, who was part of the raiding team. Thus, the Hon'ble Apex Court observed that the third alternative, which was given to the accused, that he could be searched before Superintendent J.S. Negi, amounted to violation of the provisions of Section 50(1) of NDPS Act, as no such third option could be given to the accused therein.
DLSH010057882021 Page 56 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act The facts of the present case are on a different footing as in the present case, no such third option was given to accused Farrukh @ Chapta, to the effect that he could be searched by ACP Sanjeev Kumar. Therefore, the ratio of the aforesaid case do not apply to the facts of the present case.
87.2. Ld. counsel submitted that PW1, PW3 and PW6 deposed that the accused was illiterate and, therefore, did not record his refusal in his own handwriting on notice u/s.50 NDPS Act, which fact is incorrect as is proved through the testimony of DW1 and DW2 during defence evidence.
On the other hand, Ld. Addl. PP for State submitted that the accused upon being acquitted in FIR No.135/2016, PS Nand Nagri became wiser and took the same defence in the present case with the hope that the accused would again get benefit in the facts of the present case. He submitted that it was impossible for the members of raiding team to know at the time of giving notice u/s 50 of NDPS Act as to whether the accused was actually literate or illiterate and they had no other option but to believe what the accused said to them at that stage.
As per record, the refusal of the accused to get himself searched before a gazetted officer or a magistrate or to search the members of raiding team before his search was conducted was recorded on the carbon copy of the notice u/s 50 NDPS Act Ex.PW1/C by ASI Narender Singh and same was signed by the present accused. The accused has not denied his signatures on the said document Ex.PW1/C, rather his defence is that despite the fact that he is literate and can read and write in Hindi language, the refusal of the witness was recorded as per their own convenience by the members of the raiding team and only his signatures were obtained on the same.
DLSH010057882021 Page 57 of 102SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act In order to prove that the accused was literate and able to write in Hindi language, the accused led defence evidence in which DW1 produced the case record of FIR No.135/2016 PS Nand Nagri, wherein a document Ex.DW1/A was present, which as per DW2 Manoj Kumar Dy. Superintendent, Jail No. 8 & 9, Central Jail, Tihar was written by the present accused in his presence. The said document Ex.DW1/A is in form of an application seeking exemption from appearing in last term exam due to illness. Based on deposition of DW-2 and document Ex.DW1/A and perusal of the document, the Court is satisfied that the accused is able to write in Hindi language. However, the question before the court is whether the members of raiding team deliberately wrote the refusal of the accused as per their convenience and thereafter, obtained his signatures on the same.
In this regard, it is found that all the three witnesses i.e. PW1, PW3 & PW7 categorically stated that when the accused was served notice u/s 50 NDPS Act, he stated that he was not much literate and that he can only put his signatures. It is for this reason that the refusal of accused was recorded by PW1 ASI Narender Singh, in his own handwriting and signatures on the same were put by the accused in Hindi. It may be noted that nothing has come in the cross-examination of witnesses to show that they were previously aware of the fact that the accused was literate enough to write and read in Hindi language. In absence of such previous knowledge, in the opinion of the Court there was no other method or source for the members of the raiding team to confirm as to whether the accused was actually illiterate as claimed by him or he was deliberately pretending to be illiterate so as to avoid writing the refusal in his own handwriting. The Court in view of the evidence produced by the defence witnesses, does not deny the fact DLSH010057882021 Page 58 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act that the accused is literate enough to understand and write in Hindi language, but at the same time, whether this fact was disclosed by the accused to the members of the raiding team is question of fact and as per the deposition of PW1, PW3 and PW7, the accused did not inform them that he was literate enough to read and write in Hindi language. The aforesaid argument of Ld. Counsel for accused is therefore found to be devoid of merits.
87.3. Search of accused in presence of PW-6 (ACP Sanjeev Kumar) was also challenged on the ground that prosecution failed to establish that PW- 6 was a gazetted officer.
In this regard, Ld. Counsel during the course of arguments referred to judgment of Hon'ble Apex Court in Gurjant Singh @ Janta (supra), wherein the suspect "expressed his consent that the search may be conducted in the presence of some Gazetted officer or a Magistrate".6 In the said case, as the suspect exercised his right to be searched before a Gazetted officer, therefore, his search was conducted in the presence of DSP and a question came up regarding whether the said DSP was holding the office of DSP in substantive capacity or not as it was alleged in that case that he was drawing the pay of Inspector and was merely holding the post of DSP.
In the present case, PW6 ACP Sanjeev Kumar categorically stated in his deposition dated 06.08.2024 that he was posted as ACP Operation, Shahdara District, Delhi on 08.02.2021. This deposition of PW6 remained unchallenged as no question was put to this witness as to whether he was holding the said post in a substantive capacity or merely on a temporary 6 Para-4 of the judgment DLSH010057882021 Page 59 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act basis. In the opinion of the Court, in absence of any cross-examination of this witness and also in absence of any contradictory document to establish that PW6 was not holding the post of ACP in substantive capacity, his unrebutted and uncontroverted deposition : "On 08.02.2021, I was posted as ACP Operator, Shahdara District, Delhi" cannot be overlooked or disbelieved. Therefore, the said judgment do not come to the rescue of the accused, as argued by the Ld. Counsel.
88. In view of the submission of Ld. Addl PP another question that came up for consideration of the court is: Whether compliance of Section 50 NDPS Act was required in the present case as the recovery was effected from the vehicle being driven by the accused and not from the person of the accused?
89. It may be noted that from the bodily search of the accused, no contraband was recovered. The contraband (ganja) was found in the bag / katta in the car, in which the accused was apprehended. As regards recovery made from bag, briefcase or vehicle of the suspect is concerned, it has been observed by the Hon'ble Apex Court that the provisions of section 50 NDPS Act do not apply to recoveries other than those made from the person of the accused.
90. In this regard, Hon'ble Apex Court in case titled as State of Himachal Pradesh and Ors. vs. Pawan Kumar and Ors. 2005 INSC 1937, has observed as under:
"8. The dictionary meaning of the word "person" is as under :
Chambers's An individual; a living soul; a human Dictionary : being;
b: the outward appearance, & c : bodily form; a distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of.
Webster's International Dictionary An individual human being; a human 7 Three Judges Bench DLSH010057882021 Page 60 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Third New: body as distinguished from an animal or thing; an individual having a specified kind of bodily appearance: the body of a human being as presented to public view normally with its appropriate coverings and clothings: a living individual unit a being possessing or forming the subject of personality. Black's Law In general usage, a human being (i.e. natural person), though by Dictionary: statute term may include labour organizations, partnerships, associations, corporation.
Law The expression 'person' is a noun according to grammar and it Lexicon: means a character represented as on the stage, a human being; a by P. self-conscious personality." Ramanatha Aiyar
9. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person.
Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in DLSH010057882021 Page 61 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."
(emphasis supplied)
91. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr.L.J 1384 four gunny bags were found in an auto rickshaw which the suspect was driving and there was no other person present. The argument based on non-compliance of Section 50, as explained in the case of Baldev Singh8, was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused.
92. In Madan Lal v. State of H.P. MANU/SC/0599/2003 it was held that Section 50 would apply in the case of search of a person as contrasted to search of vehicles, premises or articles.
8State of Punjab vs. Baldev Singh and Ors. (21.07.1999 - Constitution Bench) : MANU/SC/0981/1999 :
1999 INSC 282.DLSH010057882021 Page 62 of 102
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93. In Gurbax Singh v. State of Haryana 2001 Cr.L.J 1166, suspect got down from a train carrying a Katta (gunny bag) on his shoulder. It was held that Section 50 was not applicable.
94. In State of Punjab v. Makhan Singh MANU/SC/0181/2004, the suspect was apprehended while alighting from a bus with a tin box in his hand in which contraband was found. The High Court acquitted the accused on account of non-compliance of Section 50. Hon'ble Apex Court while holding that Section 50 will not apply, reversed the judgment of the High Court and the accused was convicted.
95. In V. Kanhaiya Lal v. State of M.P. (2000)10 SCC 380, one kg. of opium was found in a bag which was being carried by the suspect. Argument seeking acquittal on the ground of noncompliance of section 50 NDPS Act was rejected on the ground that it was not a case of search of the person of the accused.
96. In Birakishore Kar v. State of Orissa AIR 2000 SC 3626, suspect was found lying on a plastic bag in a train compartment. Argument that compliance of section 50 was mandatory was rejected on the ground that the accused was sitting on the plastic bag and it was not a case of the search of the person of the accused.
97. In Krishna Kanwar v. State of Rajasthan 2004:INSC:61 it was held that Section 50 applies where search has to be in relation to a person as contrasted to search of premises, vehicles, articles or bag.
98. In Sarjudas v. State of Gujarat 2000 Cr.L.J 509 suspect were riding a scooter on which a bag was hanging in which charas was found. Section 50 was held not applicable as it was not a case where the person of the accused was searched.DLSH010057882021 Page 63 of 102
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99. In Saikou Jabbi v. State of Maharashtra MANU/SC/0991/2003, Heroine was found in a bag being carried by suspect. It was held that Section 50 was not applicable as it applies to search of a person.
100. Ld. Counsel for the accused while submitting that in a case where the accused as well as the vehicle is searched, compliance of Section 50 is essential, relied upon judgment of the Hon'ble Apex Court in Parmanand (supra) and further relied upon two judgments referred to in the said judgment i.e. Dilip & Anr. Vs. State of MP, AIR 2007 SC 369 and Union of India Vs. Shah Alam, AIR 2010 SC 1785. The relevant paras i.e paras no.9 to 12 of the judgment in Parmanand (supra) are reproduced as under :
"9. In this case, the conviction is solely based on recovery of opium from the bag of Respondent No. 1-Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra MANU/SC/0662/1999 : (1999) 8 SCC 257, this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar MANU/SC/0272/2005 : (2005) 4 SCC 350, three-Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person"
occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by Respondent No. 1-Parmanand.
10. In Dilip and Anr. v. State of Madhya Pradesh MANU/SC/8711/2006 : (2007) 1 SCC 450, on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.
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11. In Union of India v. Shah Alam MANU/SC/1065/2009 : (2009) 16 SCC 644, heroin was first recovered from the bags carried by the Respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the Respondents on that ground.
12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent No. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
(emphasis supplied)
101. However, in this regard, the Court would like to refer to a Full Bench decision of the Hon'ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019 INSC 1145. In the said case, the recovery was made from Qualis car9, in which the accused persons were travelling and the question regarding the applicability of Section 50 NDPS Act, in case of such recovery came up for consideration before the Hon'ble Apex Court. Hon'ble Apex Court while referring to the Constitution Bench Decision in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and while noting the decision in Dilip (supra) categorically overruled the law laid down in Dilip (supra), while holding that the law laid down in the said case is opposed to the law laid down by the Constitution Bench in Baldev (supra). Paras 16 to 19 of the judgment are reproduced as under :
9Just like the recovery has been made from swift car in the present case.DLSH010057882021 Page 65 of 102
SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act "16. As regards applicability of the requirements Under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based "only"
on the basis of possession of an illicit Article recovered from personal search in violation of the requirements Under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the Accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by Accused-Baljinder Singh with the other Accused accompanying him, their presence and possession of the contraband material stood completely established."
102. In view of the law laid down in Baldev (supra) and Baljinder (supra) as well as other judgments cited above, it is held that the compliance of Section 50 NDPS Act is not mandatory in the present case, as the recovery was effected from the vehicle being driven by the accused and not from the person of the accused.
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103. Based on the testimonies of witnesses PW1, PW3, and PW7, it has been established that the accused was duly served with notice under Section 50 of the NDPS Act before his bodily search was conducted (during which no contraband was found), and there was no violation of this mandatory provision. Additionally, according to the observations in the referenced judgments, compliance with Section 50 is not required for recovery from the vehicle being driven by the accused.
Discussion on the point of recovery of contraband
104. As per prosecution case, on 08.02.2021, at about 9.10 p.m., one secret informer came in the office of Narcotic Cell, Shahdara and met PW3 Ct. Mohit Kumar and gave him information that accused would come from Seelam Pur and go towards Seema Puri, via Shahdara flyover, between 10.30 - 11.00 p.m. in white colour Swift car, bearing no. DL4C-AS-8966 and if raid is conducted, he can be apprehended alongwith Ganja. PW3 Ct. Mohit Kumar produced the secret informer before PW1 ASI Narender at 9.20 p.m. and the same information was given by the secret informer to PW1, who further shared the said information with Insp. Heera Lal PW13 on telephone. The secret informer also talked to Insp. Heera Lal over telephone. PW13 Insp. Heera Lal conveyed the said information to PW6 ACP Sanjeev Kumar, who directed PW13 Insp. Heera Lal to take further steps immediately. Thereafter, PW13 Insp. Heera Lal directed PW1 ASI Narender to constitute a raiding party and proceed further. Upon receiving the aforesaid direction, PW1 ASI Narender Singh lodged DD No.8 Ex. PW1/A w.r.t. the secret information and constituted a raiding party, including himself, PW3 Ct. Mohit and PW7 HC Rajiv. He thereafter shared the secret information with HC Rajiv. At about 9.55 p.m., PW1, PW3 and PW7 alongwith secret informer left the Narcotic Cell vide Departure Entry No.9 Ex. PW1/B and PW1 carried with him IO kit and electronic weighing machine in DLSH010057882021 Page 67 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act car make Verna bearing no. UP14-CQ-6551, being driven by PW3. Due to late hours, PW1 was not able to obtain any search warrants and the raiding team alongwith the secret informer reached at Shahdara Flyover at 10.10 a.m., via Karkari Road, 60 Foota Road, Krishna Nagar, Shyam Lal College Gol Chakkar and after taking a U-Turn from Metro Station Welcome. After reaching at the flyover, PW1 directed PW3 to park the aforesaid Verna car at the end of Shahdara Flyover and the members of the raiding team thereafter took position at Shahdara Flyover. PW1 stopped 4-5 vehicle riders and asked them to join the raiding party, but none of them agreed and left without disclosing their names and addresses. Thereafter, the raiding party placed the barricades lying nearby on the road and PW1 alongwith the secret informer took position about 25-30 steps before the barricades. At about 10.50 p.m., while checking the vehicles, one white colour Swift car bearing registration no. DL4C-AS-8966 was seen coming from the side of Seelam Pur and going towards Shahdara, which was pointed out by the secret informer, upon which, PW1 directed the raiding team to place barricades on road and the Swift car was stopped, which was being driven by accused and as soon as the car was stopped, he tried to flee away and also tried to cause injuries to himself by rubbing his neck on the boundary wall, but PW3 and PW7 controlled the accused and upon enquiry, accused disclosed his name as Farukh @ Chapta s/o. Siraj r/o. Vikram Enclave, Shalimar Garden, Ghaziabad, UP. PW1 introduced himself and other members of the team to accused and also informed him about the secret information and apprised him about his legal rights that he can get himself searched in the presence of Gazetted Officer or Magistrate by calling them at the spot or by producing him before them. Accused was also apprised that he can also take search of members of raiding team, before his search is conducted. Notice u/s.50 NDPS Act Ex. PW3/F, DLSH010057882021 Page 68 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act which was prepared by PW1 and signed by PW3 & PW7, was served upon the accused and he was apprised about the contents of the same. Signatures of accused regarding receipt of the notice were taken on the carbon copy Ex. PW1/C and his refusal to get himself searched before a Gazetted Officer or a Magistrate or to take search of members of raiding party was recorded on the carbon copy Ex. PW1/C, bearing his signatures as well as signatures of PW1, PW3 and PW7. At about 11.00 p.m., PW1 telephonically called PW6 ACP Sanjeev Kumar and informed him that accused has been apprehended at the spot, upon which PW6 came at the spot at about 11.30 p.m. On the directions of PW6, accused opened the rear gate of aforesaid car and from the right rear side of the car, he took out one white plastic Katta and opened the same, which was found to contain Ganja. On the directions of PW6, PW1 also conducted personal search of accused, but nothing was found therein. The said plastic katta produced by the accused from the rear right side of the car, was weighed on electronic weighing machine and found to contain 23.5 Kg of Ganja like substance. PW1 tied the said katta and sealed it with the seal of MC and gave it Mark A, after which he handed over the seal to PW7 HC Rajiv vide handing over memo Ex. PW1/D. The aforesaid katta sealed with the seal of MC was seized vide seizure memo Ex. PW1/E, bearing the signatures of PW1, PW3, PW6 and PW7 as well as signatures of accused.
105. In order to prove the recovery, the first witness examined by the prosecution is PW1 ASI Narender Kumar. The said witness in his examination-in-chief as regards the recovery, testified as under :
" We took position at the mid point of the fly over which goes down towards Shahdara. We all were in civil uniform. I directed Ct. Mohit to park the vehicle at the ending point of the flyover towards Shahdara. I stopped 4-5 vehicles and asked them to join the investigation by telling them about the received information but none agreed to join the investigation. There were already police barricading on the flyover. I was standing along with secret informer before 25-30 steps from the spot DLSH010057882021 Page 69 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act and directed the other raiding team to take the position near police barricading and also directed the raiding team to check the vehicles coming from the Seelampur towards Shahdara. At around 10.50 pm, while checking the vehicles, white colour swift car bearing DL -4CAS- 8966 was coming from the side of Seelampur and going towards Shahdara. Secret informer pointed out towards the said car and informed that this is the same car for which he had given the information. I asked the raiding team to put barricade and stop the car by waving my both hands. Secret informer left from there. Raiding team stopped the said swift car and I also reached near the car. HC Rajeev and Ct. Mohit took out the driver of the car and controlled him. The driver of the car tried to fled away by escaping himself and he also tried to cause injuries himself by rubbing his neck on the boundary wall of the flyover. I, Ct. Mohit and HC Rajeev controlled him by using some force. After enquiry, the apprehended person / accused disclosed his name as Farukh @ Chapta s/o Siraj, aged about 32, r/o E-127/2, Vikram Enclave Shalimar Garden, Ghaziabad, UP. I introduced myself and my team to the accused. I also informed him about the information of carrying illegal contraband in his person or in the said car by him and the accused has been searched by me. Thereafter I apprised him for his legal right by saying that he can get himself searched as well as search the raiding team in the presence of any Gazetted officer or the Magistrate by calling them at the spot or by producing him before them. I also apprised him that who is the gazetted officer or Magistrate in simple language. I prepared notice under section 50 of the NDPS Act one in original and one carbon copy. I also apprised him about the notice under section 50 of the NDPS Act and handed over the original copy to the accused and took his signature on the carbon copy (which is in hindi). However accused refused to get himself searched in the presence of any Gazetted officer or the Magistrate as well as to search the raiding team in the presence of any Gazetted officer or the Magistrate. Thereafter the said denial of accused was noted down by me in my handwriting on the notice under section 50 NDPS Act as the accused told me that he is not so much literate and he can only put his signature. The carbon copy of the notice under section 50 of the NDPS Act is Ex. PW1/C which bears my signature at point A. The denial of the accused noted by me in my handwriting is marked 'X'. Accused put his signature at point B and B1 on the said notice.
At about 11.10 pm, I telephonically informed ACP Sanjeev Kumar for compliance of notice under section 50 of the NDPS Act. ACP Sanjeev Kumar came at the spot at around 11.30 pm. I produced the accused Farukh @ Chapta to ACP Sanjeev Kumar and apprised him. On the direction of the ACP Sanjeev Kumar, the accused opened the rear gate of the car from the right side. On the rear seat of the car one white plastic katta was found. Accused took out the said katta from the car on the direction of the ACP Sanjeev Kumar. Before opening the said katta the accused informed the ACP Sanjeev Kumar that it contained ganja. On the direction DLSH010057882021 Page 70 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act of the ACP I personally searched the said car but nothing was found there in. I opened the said katta on the direction of the ACP which was tied with white colour cloth. On checking I found some leaves, seeds moisture grass etc which was seems like ganja on physical appearance. I weighed the said contraband on electric weighing machine and found 23 kilo 500 grams of ganja. I tied the said katta by the same cloth duly sealed with the seal of MC and gave mark A on it. Seal after use handed over to HC Rajeev. I prepared seal handing over memo which is now Ex.PW1/D which bears my signature at point A. I seized the said katta containing contraband vide seizure memo Ex.PW1/E which bears my signature at point A. ACP left the spot after giving directions for further investigation. Accused Farukh has committed the offence u/s 20 NDPS Act by keeping contraband with himself."
106. PW3 Ct. Mohit also deposed on the same lines in his examination-in-chief and corroborated the testimony of PW1 ASI Narender Singh. The deposition given by these witnesses is further corroborated by the depositions of PW6 and PW7. Thus, four prosecution witnesses i.e. PW1, PW3, PW6 & PW7, who are also witnesses to the seizure memo Ex. PW1/E deposed on the same lines regarding the recovery of 23.5 Kg of Ganja from the vehicle, being driven by the accused.
107. The depositions of the aforesaid witnesses regarding the recovery made from the accused, has been challenged by the Ld. Counsel for the accused during the course of arguments. The arguments raised by Ld. Counsel for the accused are discussed herein below.
108. Ld. Counsel for accused submitted that as per the prosecution case, seal of MC was used by PW1 ASI Narender, but it has not been clarified as to why ASI Narender did not use his seal and instead use the seal of MC to seal the case property. The witness to whom the seal belongs, has not been examined by the prosecution.
Though, it is correct that PW1 ASI Narender used the seal of MC to seal the case property, whereas the initials of his name are NS and not MC, however, merely because the seal of MC was used by ASI Narender does not mean that the case property was not seized as deposed by PW1, PW3, PW6 & PW7. No DLSH010057882021 Page 71 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act question was put to the witness in this regard in his cross examination and as such the witness never got the opportunity to explain why he was using the seal of MC. It may be noted that it is the case of the accused that the case property was planted upon him, however, if that had been the case, then PW1 ASI Narender Singh would not have mentioned the seal of MC in the seizure memo, seal handing over memo and the rukka. The very fact that ASI Narender duly mentioned the seal that he used to seal the case property in all the documents indicate that the seizure memo was duly prepared while seizing the case property / contraband. Had a question in this regard be put to PW-1, he would have explained the reason for using the said seal.
109. Ld. counsel also emphasized on two contradictions i.e. firstly, PW1, PW3 and PW7 stated that PW1 had made telephonic call to PW6 (ACP) at 11.10 p.m. and he reached at the spot at 11.30 p.m., whereas PW6 stated that he received the telephonic call from PW1 at about 10.30 - 10.45 p.m. and reached at the spot around 11.00 - 11.15 p.m., secondly, another contradiction is w.r.t. the vehicle in which PW6 (ACP) arrived at the spot. While PW3 and PW7 stated that PW6 arrived at the spot in Maruti Suzuki Dzire, PW6 himself stated that he arrived at the spot in Maruti Ertiga.
The said contradictions are found in the depositions of the witnesses, however, they are not material in nature and it may be noted that though, the recovery was made in 2021, the witnesses testified before the Court in 2023 and 2024. Thus, due to lapse of time, some minor contradictions in the depositions of the witnesses regarding the time and regarding the exact model of the vehicle, may occur and cannot be said to be so vital as to doubt the recovery from the accused.
110. As regards the production of case property and proving that the contraband seized was produced before the Court, Ld. Counsel brought to the attention of the Court the deposition of PW1 and PW3, specifically, the portion when the DLSH010057882021 Page 72 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act case property was produced, to show that as per the details of the case property produced given in both the depositions, there is no mention of the fact that the signatures of the accused were obtained on the plastic katta, in which the case property was sealed. He submitted that the signatures of the accused are taken on the seizure memo as well as other documents, but in order to connect the physical case property produced before the Court to the accused, it is essential that the said case property should also bear the signatures of the accused. It may be pointed out that the case property upon being seized vide seizure memo Ex. PW1/E was subjected to proceedings u/s.52A NDPS Act, during which the photographs of the case property was taken, which shows that the details of the FIR Number, DD Number and the signatures of PW1 were there on the katta in which the case property was seized. The said photograph is reproduced as under :
From the aforesaid photograph, it can be seen that the case property could be duly identified from the particulars mentioned on the katta in which it was seized at the spot. There is no requirement to take the signatures of the accused also on the seized contraband. The requirement of law is that the case property DLSH010057882021 Page 73 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act should be duly sealed at the spot and additional counter seal need to be placed by SHO when the case property is produced before him, which was done in the present case.
111. Ld. Counsel argued that no record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW1. It could not be proved by the prosecution that the weighing machine used to weigh the contraband at the spot was on that day handed over to PW1 for the purpose of investigation.
On this aspect it may be pointed out that the limited purpose of a weighing machine is to weigh the contraband. It is different from a testing kit, which has chemicals to test the contraband. If the IO weighs the contraband on a weighing scale owned by him or arranged by him from any shop keeper, it does not make much difference, as the limited purpose of a weighing machine is to ascertain the weight of the contraband recovered at the spot. It may be argued that the weighing machine needs to be calibrated and therefore should be arranged from the office only, but, in the facts of the present case, where the weight of the contraband is in KGs and not grams, even that does not make much difference. On 8.2.2021 the weight of the contraband at the spot was found to be 23.5 kgs and when it was produced for sampling proceedings before the Ld. Magistrate on 17.2.2021, its weight was found to be 23.172 Kgs. Thus, there is no major difference in the weight of the contraband found at the spot and as weighed at the time of sampling proceedings. In this respect, the Court would like to refer to judgment titled as Bharat Amble Vs. State Bharat Aambale Vs. The State of Chhattisgarh, Crl. Appeal No.250/25 of Hon'ble Apex Court, wherein it was observed by the Hon'ble Apex Court that hyper-technical view should not be taken by the Court while looking into discrepancies like slight difference in weight of the DLSH010057882021 Page 74 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act contraband as more often than not an officer in a public place would not be carrying a good scale with him. The relevant portion of judgment is reproduced as under :
"It is for the Courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and 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 difference in 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 of false impression of illegal possession or recovery, or to overstate of 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 seizure, the quality of evidence on record etc."
(emphasis supplied)
112. Ld. Counsel for the accused also submitted that PW1 during his cross- examination stated that the 2nd IO (PW15) upon arrival at the spot did not add or delete any word in the documents already prepared by PW1. However, it is found that on the seizure memos, the FIR Number of the case is mentioned, which shows that the said documents were prepared after the registration of FIR. Ld. Counsel submitted that it is not that in all the documents prepared by PW1, the FIR number is mentioned, like in the notice u/s.50 NDPS Act, there is no mention of the FIR number, but in other documents, particularly the seizure memos, which too were prepared before registration of FIR, the FIR number has been mentioned, which fact remains unexplained. Perusal of the record reveals that the FIR number is mentioned on the seizure memo Ex. PW1/E, which as per the prosecution was prepared before the registration of the FIR. Perusal of the seizure memo would itself show that the said FIR number is mentioned at the top of the seizure memo with blue DLSH010057882021 Page 75 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act ink, which is darker in shade, as compared to the rest of the contents of the seizure memo. It may be noted that PW15 SI Harvir Singh in his deposition categorically stated that after he reached at the spot, he was handed over the copy of the FIR and original rukka by PW3 Ct. Mohit and he mentioned the FIR number on the documents prepared by ASI Narender. Therefore, the deposition10 of this witness explains as to why the FIR number is mentioned on the seizure memo and it also explains as to why the shade of the ink, in which the FIR number is mentioned, is darker as compared to the shade of ink used in the writing the rest of the document.
In this regard, Ld. Counsel for the accused relied upon two judgments of Hon'ble Delhi High Court in Prithvi Pal Singh Munna (supra) and Giriraj (supra). In both the said cases, it was categorically observed that "the prosecution has not offered any explanation"11, regarding the mentioning of the FIR at the top of the documents which were prepared before the registration of the FIR. However, in the present case, PW15 has categorically stated in his deposition, as stated above that he had mentioned the FIR number on the documents prepared by ASI Narender Singh. The deposition in his cross that he had not made any change or addition in the seizure memo, relates to the contents of the document. Thus, for the reasons mentioned above, the aforesaid argument of Ld. Counsel is found to be devoid of merits.
113. It was further submitted by Ld. Counsel for the accused that seal in the present case after use was handed over by PW1 to PW7 HC Rajeev and not to any public person despite the fact that the place of recovery is a busy road and there is a petrol pump and college nearby. Tampering of the case property by the police officials of the raiding team after the seizure cannot be ruled out, as 10 "I had mentioned the FIR number on the documents prepared by ASI Narender"
11Para 10 of Prithvi Pal Singh Munna and Para 5 of Giriraj DLSH010057882021 Page 76 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act the seal remained in the possession of the members of raiding team after the alleged seizure of the contraband.
As far as the said argument is concerned, the issue as regards the joining of public witness has been separately discussed and it has been held while discussing the said issue that despite efforts having been made by PW1 ASI Narender Singh to join public witness, no public witness joined the proceedings. It may be noted that as per the evidence of PW1, PW3 and PW7, the seal after use was handed over by PW1 to PW7 and the case property was handed over to PW3, who immediately left for the PS alongwith the case property and the rukka. Thus, the case property which was sealed at the spot with the seal of MC by PW1, was taken away from the spot by PW3, whereas the seal remained at the spot in the hands of PW7. As per the rukka Ex. PW1/F, PW3 left the spot alongwith the rukka at about 2.30 a.m. and as per the deposition of PW3, he went for the PS at 2.30 a.m. and returned back from there at about 4.20-4.25 a.m. As per PW2, PW3 produced the case property before him at around 4.00 a.m., which is after the registration of FIR, which was done on CCTNS at 2.59 a.m. Therefore, the arrival of PW3 at the PS is confirmed by the entry in FIR No.46/21 Ex. PW4/A to the effect that the rukka reached the Duty Officer before 2.59 a.m., thereby making it clear that there was not sufficient time or opportunity, besides the motive, with PW3 to tamper with the case property. The seal at that time was left at the spot with PW7 and by that time, this official went back, an additional seal on the case property was placed by PW2, which is the seal of SSB. Hence, in the opinion of the Court, the handing over of the seal after use by PW1 to PW7, does not create any doubt as regards tampering of the case property by PW3 or by any other member of the raiding team. Further, as stated earlier, the issue regarding non- joining of public witnesses, has been dealt with separately in this judgment.DLSH010057882021 Page 77 of 102
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114. It was further submitted by Ld. Counsel for the accused that PW6 ACP Sanjeev Kumar also failed to establish his presence at the spot as no departure or arrival entry could be produced by him to show that he had left the office to arrive at the spot. He also could not produce the log book of the government vehicle, in which he came to the spot to substantiate the fact that he actually travelled in the said vehicle to the spot on that day. Further, the investigating agency also did not make the driver of the ACP witness, in order to prove the fact that the ACP actually came at the spot.
It may be noted that PW6 Sh. Sanjeev Kumar is Assistant Commissioner of Police, which is a gazetted post and a responsible position in Delhi Police. He being a gazetted officer in Delhi Police is also empowered by the notification of 14.11.1985 u/s.41(2) of NDPS Act. The said witness categorically deposed that he reached the spot upon receiving information from PW1 and his presence at the spot is also proved by the fact that he signed the seizure memo Ex. PW1/E. Further, three other witnesses i.e. PW1, PW3 & PW7 deposed as regards the fact that this witness came at the spot and that the search and seizure proceedings were conducted in his presence. In these circumstances, it would not be proper to not to believe this witness i.e. PW6 i.e. ACP and even other three witnesses i.e. PW1, PW3 & PW7, but seek the deposition of the driver of PW-6 to establish the presence of a gazetted officer at the spot. It would be awkward to believe a driver regarding the presence of the ACP, but not to believe the ACP, whose deposition is corroborated by ASI (PW1), a Head Constable (PW7) and a Constable (PW3).
115. It was further submitted by the Ld. Counsel that PW8 MHCM in his deposition stated that the case property was deposited on 09.02.2021 by PW2 Insp. Shivraj Singh, but in register no.19 Ex. PW8/A, the name of the depositor is mentioned as ASI Narender Singh, who as per the prosecution case was DLSH010057882021 Page 78 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act present at the spot at that time. This witness stated that the case property was taken by him on the directions of PW15 SI Harvir Singh for proceedings u/s.52A NDPS Act on 17.02.2021 and thereafter, on 19.02.2021, he handed over the case property to PW12 Ct. Prince for taking the case property to FSL. However, there is no entry in this regard in register no.19 and, therefore, prosecution has failed to prove that the case property produced before the Magistrate on 17.02.2021 was the same case property which was seized. He further submitted that PW15 in his deposition neither stated that he had directed PW8 to bring the case property to the Court of Magistrate on 17.02.2021, nor he had stated that he had asked PW12 Ct. Prince to take the case property from MHCM for depositing the same in FSL. Further, as per register no.19, there is neither any signatures of PW12 nor mention of the movement of the case property, as stated by PW8.
The said argument is found to be devoid of merits as in the present case, in register no.19, the details of the case property have been duly mentioned in the relevant columns (as the details of the seizure memo have been reproduced therein) and in the name of depositor, besides the name of ASI Narender, there is detailed entry made by PW2 himself, to the effect that the case property was sealed by him and was handed over to the MHCM. The signatures of this witness along with his designation and date is duly mentioned by this witness in his own handwriting in the column relating to name of depositor. Further, as pointed out by the Ld. Addl. PP, there is no specific column in register no.19 to track the movement of the case property as for the said purpose, a different register i.e. register no.21 is maintained and Road Certificate is issued accordingly. The entry in the said register no.21 was duly exhibited during the deposition of PW12 HC Prince, who took the samples from MHCM on 19.02.2021 and deposited the same at FSL. The said document Ex. PW12/A DLSH010057882021 Page 79 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act bears the signatures of this witness and proves that the movement of the case property from the MHCM to the FSL was duly documented. It was argued by the Ld. Counsel that in many other cases, in register no.19, entries are made regarding the movement of the property. The mentioning of the movement of the case property in register no.19 may be a good practice, but upon perusal of the columns mentioned in register no.19, it is found that there is no specific column to note down the movement of the case property, though, there is a column regarding the disposal of the same. Therefore, the aforesaid argument is found to be devoid of merits, particularly when the movement of the case property is duly recorded in register No.21.
116. Accordingly, in the opinion of the Court, in view of the deposition of PW1, PW3 & PW7, which is further corroborated by a gazetted officer PW6 ACP Sanjeev Kumar, who is also empowered u/s.41 NDPS Act and in view of the other circumstantial evidence regarding affixing of the counter seal by PW2, deposit of the case property with PW8, registration of FIR by PW4, the prosecution has duly proved the recovery of the contraband from the possession of the accused. The arguments addressed by Ld. Counsel challenging the recovery have been discussed and found to be devoid of merits. It may be noted at this stage that the prosecution though, required to prove the case against the accused beyond reasonable doubt, is not required to prove the case beyond any fathomable, unrealistic iota of doubt. In the opinion of the Court, there is no reasonable doubt to disbelieve the fact that the recovery of the contraband was made from the accused. Discussion on proceedings u/s. 55 and 52A of NDPS Act
117. As per the prosecution case, PW-1 ASI Narender Singh, the first IO of the case after the recovery was effected from the possession of the accused, seized the same vide seizure memo Ex.PW1/E. In total one packet/katta of ganja was DLSH010057882021 Page 80 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act recovered from the accused weighing 23.5 kg which was sealed, as it is, at the spot with the seal of MC and seal after use was handed over to PW7 HC Rajeev Kumar. The aforementioned recovered ganja was seized vide seizure-memo Ex.PW1/E, which also bears signature of the accused. Rukka was prepared by PW1 i.e. Ex.PW1/F and the same was handed over to PW3 Ct. Mohit for registration of FIR. The carbon copy of seizure-memo, carbon copy of notice u/s 50 NDPS Act, along with the case property sealed with the seal of MC was also handed over to PW3 Ct. Mohit with direction to produce the same before the SHO. PW3 Ct. Mohit along with the parcel, rukka, copy of seizure-memo went to PS, where rukka was handed over to the Duty Officer and the copy of seizure-memo along with sealed parcel was handed over to PW2 Inspector Shivraj Singh.
118. PW2 Inspector Shivraj Singh upon receiving the copy of seizure-memo and one parcel, affixed his seal of SSB on the said pullanda and after confirming the FIR number from the Duty Officer, PW2 SI Okesh Pal, mentioned the same on the pullanda/parcel and seizure-memo.
119. PW2 Inspector Shivraj Singh, thereafter handed over the sealed parcel and copy of seizure-memo to MHCM SI Praveen Kumar (PW8) at about 4:30 a.m., who deposited the said parcel in Malkhana and made entry in this regard at serial no.2539 in register no.19 Ex.PW8/A, which was also countersigned by the SHO.
120. Thus, PW2 upon receiving the sealed parcel duly affixed his counter-sealed on the said pullanda bearing the seal of SSB. The deposition of PW2 in this regard is as under : -
"In the intervening night of 08/09-02-2021 I was posted as SHO at PS Shahdara. On 09.02.2021 at early morning Ct. Mohit met me at the police station and he handed over a pullanda mark A and carbon copy of seizure memo of case property containing ganja. The pullanda was sealed with the seal of MC which was tied with white cloth. Thereafter I made DD entry 10A which is now DLSH010057882021 Page 81 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Ex.PW2/A which bears my signature at point A at PS Shahdara at about 4.30 am and I also affixed my seal SSB on the above said pullanda. Thereafter MHCM was called at my office and he had made entry of the seizure memo in my presence and I handed over him the above sealed pullanda in duly intact condition. I mentioned the FIR Number on the seizure memo and pullanda Mark A. IO SI Harvir recorded my Statement u/s 161 CrPC on 09.02.2021."
121. In the cross-examination of this witness, the witness while admitting that in Register No.19, the name of depositor is mentioned as Narender Singh, stated that he made entry in his own handwriting in Register No.19 against entry no.2539 which is Ex.PW2/DX. Perusal of the entry reveals that in the noting made by this witness, he mentioned that he also affixed seal of SSB on the pullanda and the same along with the copy of seizure memo was produced before him by Ct. Mohit of Narcotics Cell. He categorically mentioned that the MHCM received the case property along with the copy of seizure memo. His signatures are also found beneath the said entry, in the column with respect to date of deposit and name of depositor.
122. From the examination in chief and cross-examination of this witness it is seen that this witness duly complied with the provisions of section 55 NDPS Act by placing his countersealed on the case property and thereafter depositing the same with MHCM PW8 SI Praveen Kumar. The testimony of this witness is further corroborated by entry made by him in Register No.19 Ex.PW2/DX wherein the fact regarding placing of counterseal of SSB is duly recorded.
123. Further, when the case property was produced before Ld. MM on 17.02.2021 during proceedings u/s 52A NDPS Act, the Ld. Magistrate also found the pullanda sealed with the seal of MC and SSB. The relevant portion of the proceedings u/s 52A Ex.AD-1 in this regard is as under :-
"At this stage, IO is directed to produce the case property. IO has produced one white colour plastic pullanda carrying the seized contraband, The pullanda is marked as Mark-A and sealed with the seal of MC & SSB. The weighing machine is set at zero and photographed. The photograph of the white coloured plastic bag pullanda before the seal was broken, had been taken which is 23.172kg. At my DLSH010057882021 Page 82 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act direction the seal is broken and a green coloured substance (contraband) can be observed, in the bag. The same is photographed."
124. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of 'MC' by PW1 ASI Narender Singh and was further sealed at the PS by SHO PW 2 Inspector Shiv Raj Singh Bisht with the seal of 'SSB' was found intact by the Ld. Magistrate, when the proceedings u/s.52A were conducted on 17.02.2021. Further the Ld. Magistrate vide proceedings Ex. AD-1 took out two samples of 250 grams each from the pullanda. After taking out the said samples the remaining contraband was sealed in the same pullanda mark A and the said two samples were marked as Mark A1 and A2. All three pullandas were sealed with the seal of court i.e. 'AN'. These proceedings Ex.AD-1 were admitted by accused persons on 29.11.2024.
125. Accordingly, in the opinion of the court the provisions of section 55 and 52A were duly complied with in the present case.
Discussion on compliance u/s. 57 of NDPS Act
126. Section 57 of NDPS Act is reproduced as under:
"57. Report of arrest and seizure.--
Whenever any person makes any arrest or seizure, under this Act, he shall, within forty- eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
127. As per the charge sheet, report regarding recovery of the contraband under section 57 NDPS Act was prepared by PW-1 ASI Narender Singh and the same was sent to PW13, who forwarded it to PW6. The report bears the signatures of PW-13 as well as PW-6. Report regarding arrest of the accused under section 57 NDPS Act was prepared by PW-15 SI Harvir Singh and the same was sent to PW13, who forwarded it to PW6. This report also bears the signatures of PW-13 as well as PW-6.
128. Ld. Counsel for the accused challenged compliance of section 57 NDPS Act on the ground that PW1 during his deposition never stated that he had prepared DLSH010057882021 Page 83 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act report u/s.57 of NDPS Act, though, the said report was subsequently exhibited during the deposition of PW5 as Ex. PW5/B. He submitted that in the absence of deposition of the author of the document, namely PW1 ASI Narender Singh, regarding having prepared report u/s.57 NDPS Act, the exhibiting of the same by PW5 during his deposition does not prove the document as per Indian Evidence Act. He claimed that in absence of such proof, Section 57 NDPS Act do not stand complied with.
129. On the other hand, Ld. Addl PP while admitting that PW1 ASI Narender Singh did not testify regarding report under section 57 of the NDPS Act, submitted that PW13 ACP Heera Lal and PW6 ACP Sanjeev Kumar as well as PW5 (Reader to ACP) duly testified regarding the report u/s 57 NDPS Act, therefore the provisions of section 57 NDPS Act were duly complied with.
130. Testimony of PW1 reveals that he did not testify about the report under section 57 NDPS Act, either in his examination in chief or in his cross examination. PW1 who was the author of the report under s.57 NDPS Act Ex.PW-5/B, failed to testify that he had authored the said document. However, the said document was exhibited during the deposition of PW5 ASI Rajiv Saxena, Reader to ACP, as Ex.PW-5/B and was original seen and returned. The said witness also identified the signatures of ACP Sanjeev Kumar on the said report at point A.
131. It may be noted that when the original report under section 57 NDPS Act was produced by PW-5 and was exhibited as Ex.PW-5/B(OSR), no objection as regards the mode of proof was raised by the Ld. Counsel for the accused. In R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Ors MANU/SC/0798/2003, Hon'ble Apex Court held that the objection as regards the mode of proof of a document needs to be taken at the DLSH010057882021 Page 84 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act time when the document is tendered/exhibited/marked in evidence. The relevant portion of the judgment is as under:
"Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
(emphasis supplied)
132. The objection as regards mode of proof was not raised by the Ld. Counsel for the accused at the time when the original report under section 57 NDPS Act was produced by PW-5 and exhibited as Ex.PW-5/B. Had he raised the said objection at that stage, the prosecution may have taken steps to cure the defect in proving the document. As no objection was raised at that stage, hence, failure to raise a prompt and timely objection amounts to waiver of the DLSH010057882021 Page 85 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act necessity for insisting on formal proof of report under section 57 NDPS Act Ex.PW-5/B.
133. Even otherwise, even in absence of the deposition of the author of the document, one thing is clear from the deposition of PW-13 and PW-6 that both of them received a report under section 57 NDPS Act, purportedly prepared by ASI Narender Singh. The said report Ex. PW-5/B was forwarded by PW- 13 to office of PW-6, was received in the office of PW-6 and entered in Diary (Ex.PW-5/A) by PW-5 and was seen and signed by PW-6 (ACP). The information as regards recovery of the contraband, duly mentioning the name of the accused, the quantity of the contraband and the seal used to seal/seize the contraband etc, was received by PW-13 on 9.2.2021 who is immediate official superior of PW-1 ASI Narender Singh. PW-13 Inspector Hira Lal forwarded the said information to his immediate official superior i.e. ACP Sanjeev Kumar (PW-6), who also perused the report on 9.2.2021 and signed the same at point A.
134. It may be noted that as per section 57 NDPS Act the officer who seizes the contraband shall, within forty-eight hours next after such seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. The purpose is that the details of the seizure reach the superior officials in time so that the same may not be tampered with, exaggerated or modified by the junior officials, who conducted the seizure. The said purpose has been met with in the present case as the report regarding seizure reached PW-13 as well as PW6 (ACP) on 9.2.2021.
135. In the opinion of the court, even in absence of the of the deposition of PW-1 as regards the fact that he had sent the report Ex.PW-5/B to PW-13, it stands proved that a report regarding seizure of contraband, mentioning all necessary particulars, purportedly prepared by PW-1 was received by PW-13 which he DLSH010057882021 Page 86 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act forwarded to PW6 (ACP) and which was received and entered in register Ex.PW-5/A by PW-5 and placed before PW-6, who had seen it and signed it at point A on 9.2.2021. The same amounts to compliance of section 57 NDPS Act.
136. At this juncture the court would like to refer to two decisions of Hon'ble Apex Court in this aspect. In Sajan Abraham vs. State of Kerala12 MANU/SC/0424/2001 Hon'ble Apex Court held as under:
12. The last submission for the appellant is, there is non-compliance of Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, that has not been done. Hence the entire case vitiates. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that PW 5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ex. P9 shows that the copies of the FIR along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by PW 5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This section is not mandatory in nature.
When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW 5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of section 57 of the Act.
(emphasis supplied)
137. In State of Punjab vs. Balbir Singh (supra)13 , Hon'ble Apex Court held:
The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest of seizure under Section 41 to 44 are by themselves not mandatory.12
Three Judges Bench of Hon'ble Apex Court.13
Also relied upon by Ld. Counsel for the accused.DLSH010057882021 Page 87 of 102
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138. Accordingly in the opinion of the court the provisions of section 57 were duly complied with by the investigating agency in the facts of the present case. Discussions on non-joining of the public witnesses
139. 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 police witnesses.
140. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses that PW1 ASI Narender Singh, IO made sincere efforts to join public witnesses, but none agreed.
141. In this regard, PW1 deposed that he approached passersby/vehicle riders at the spot, to join the investigation, but none agreed to join investigation.
142. The witness was cross-examined on this aspect and he stated:-
"We reached at the spot at about 10.10 pm. I do not know the names and addresses of the passersby to whom I requested to join the proceedings. No written notice was given to those passersby. I did not take any legal action u/s 187 IPC for not joining the proceedings. It is wrong to suggest that no passersby was requested to join the proceedings or that I did not make any sincere effort to join any public persons as accused was not apprehended at the time place and manner as deposed by me in my examination in chief. The accused came in a Swift car at about 10.50 pm and within 2-3 minutes we apprehended him. I stayed at the spot till 4.25 am - 4.30 am..
It is wrong to suggest that since we apprehended the accused till taking the search of the accused, I did not make any request to the public persons to join the proceedings. It is wrong to suggest that no public persons were requested to join the proceedings during this period or that I did not make any sincere effort to join public person because accused was not apprehended at the spot or that all the documents were prepared while sitting in the office of Narcotic Cell."
143. Similar is the deposition of PW-3 and PW-7 in their examination in chief as well as cross examination.
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144. During arguments Ld. Counsel for accused pointed out that PW6 and PW15 admittedly did not make any effort to join any public person in investigation when they arrived at the spot. Further, even PW1, PW3 and PW7 did not make sufficient efforts to join public persons, as despite the fact that the spot is near a fire brigade office, PS Shahdara, as shown in site plan Ex. PW1/G and also near a CNG Pump, as admitted by the witnesses, no effort was made to join any public witness from the said offices or CNG Pump. In this regard, Ld. Counsel specifically relied upon admission of PW7 in deposition dated 09.12.2024 (page 3), that none of the members of raiding team had called any person or employee from Shyam Lal College, Fire Brigade office, CNG Pump or PS Shahdara for joining investigation at the spot.
145. The deposition of PW-7, which ld Counsel for the accused referred to in his argument is as under:
"ASI Narender had asked 4-5 public persons to join investigation even after the apprehension of the accused. Their names and addresses were not recorded by ASI Narender. Neither any notice was given to the said public persons, nor any action taken against them u/s. 187 IPC by ASI Narender. It is wrong to suggest that accused was not apprehended in the manner as deposed by me and for the said reason, no public person was joined at the spot. It is correct that I myself had not asked any public person to join the investigation conducted at the spot.
It is correct that Shyam Lal College is located near the spot on the left side of the road, when coming from ISBT and going to Apsara Border. It is correct that adjacent to Shyam Lal College, there is a Fire Brigade office and in between the two, there is a government school. Adjacent to Fire Brigade office, there is PS Shahdara. On the right side of the road, there is a CNG pump at the starting point of the flyover. It is correct that the road from ISBT to Apsara Border is a busy road throughout the day and night. It is correct that ASI Narender or any other member of raiding team, had not called any person or employee from Shyam Lal College, Fire Brigade office, CNG Pump or PS Shahdara for joining investigation at the spot. It is correct that no DTC bus was DLSH010057882021 Page 89 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act stopped at the spot or the driver, conductor or passengers therein asked to join investigation."
146. It may be noted that as per the secret information which was received at about 9:10 PM, it was mentioned that the accused could be apprehended between 10:30 and 11:00 PM, if the raid was conducted. As per departure entry No.9 the raiding party departed at 9:55 PM. PW-1, 3 and 7 stated that they reached the spot at about 10:10 PM, which means that they had a short window of just few minutes to ask public person to join investigation. Thus, PW- 1 stopped 4-5 persons who were going from there on their vehicles and asked them to join investigation. However, those public persons refused to join investigation, which is not unlikely, as a person travelling for work or going home at around 10:00 o'clock at night, if stopped by police and asked to join investigation in a case related to drugs, is not likely to join investigation. The court needs to consider the perspective of an ordinary individual who may not be familiar with legal procedures, may fear retaliation from drug traffickers in cases where they serve as a witness, and may face significant inconvenience without any personal gain, instead possibly losing time, money, and peace of mind. Due to these challenges, it is uncommon for people to volunteer as witnesses, especially in cases involving drugs, trafficking, and smuggling, which often involve organized criminal groups/cartels.
147. PW-7 acknowledged that none of the members of the raiding team had called any person or employee from Shyam Lal College, the Fire Brigade office, the CNG Pump, or PS Shahdara to join the investigation at the scene. However, if the members of the raiding team or the first IO (PW-1) had gone here and there in search of a public witness after 10:10 PM, when they arrived at the location, they might have missed apprehending the accused. The secret information indicated that the accused would arrive around 10:30 - 11:00 PM, and the police team reached the spot at 10:10 PM. Expecting the raiding team DLSH010057882021 Page 90 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act to not only make efforts to involve a public witness at the scene, but to also go to nearby offices or the CNG Pump to enlist public witnesses within such a brief timeframe would be an unrealistic expectation, considering the time constraints faced by the police team.
148. In the opinion of the court, PW-1 made sufficient efforts with the limited time he had, to join public persons, but as none agreed hence the investigating agency could not join a public witness to the search and seizure proceedings.
149. Thus, once it has come on record that public witness could not be joined despite efforts having been made, then non joining of independent witness is not fatal to the prosecution case. In this regard, this court is supported by the case law i.e. Ajmer Singh 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."
150. It is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690-1691 of 2012 decided on 19.10.12, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the DLSH010057882021 Page 91 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act 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."
151. 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'.
152. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal vs, State while observing that recovery cannot be doubted for the reason of non joining of public witness held as under:-
"19. Dealing with a similar contention in 'Ram Swaroop v. State (Govt. NCT) of Delhi', 2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
153. 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 it is clear that sufficient DLSH010057882021 Page 92 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act efforts were made by the PW-1 ASI Narender Singh to join investigation. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between the accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non joining of public witnesses.
154. Ld. Counsel relied upon Judgment of the Hon'ble High Court in Masoom (supra) to impress upon his argument regarding non-joining of public witnesses, however, in the said case, the secret information was received at 9.30 a.m. regarding the arrival of consignment of drug at IGI Airport through Airplane at 1.00 p.m., while in the present case, the secret information was received at 9.10 p.m. and the suspect as per the secret information was to arrive about an hour later at about 10.30 p.m. Hence, the facts of the said case cannot be equated with the facts of the present case, more so for the reasons, as stated earlier in this part of the order.
155. Ld. Counsel in this regard also relied upon judgment titled Prithvi Pal Singh Munna (supra), in which case, the recovery was made at about 7.00 p.m. on 15.07.1993 from near Imperial Cinema. In the present case, the recovery was made at around 10.50 p.m. on 08.02.2021 i.e. in the winter months and as stated earlier, in the limited time available with the investigating agency, they did make the necessary efforts to join public witnesses, but failed in their endeavor in this regard.
156. Therefore, the non-joining of public witnesses despite sufficient efforts having been made by the investigating agency cannot be said to be fatal to the prosecution case.
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157. Whether recovered substance is Ganja?
158. The case of the prosecution is that the substance, which was recovered from the possessions of the accused persons is Ganja.
159. In order to prove this fact, the prosecution examined PW14 Dr. Adesh, Senior Scientific Officer (Chemistry), FSL Rohini, who testified as under :
" I am a summoned witness. I am working at FSL Rohini since 1999. On 19.02.2021, I was posted as senior scientific officer (chemistry ) at FSL Rohini. On that day one sealed parcel Mark A1 sealed with the seal of AN in FIR No.46/2021 dt 09.02.2021 u/s 20 NDPS Act PS Shahdara along with specimen seal, forwarding letter, copy of FIR, copy of seizure memo etc were received in our office from SHO PS Shahdara vide letter reference no.188/SHO/ Shahdara dated 19.02.2021. Same was marked to me for chemical examination. The seal was intact and was tallying with specimen seal. On opening the parcel Mark A1, it was found containing damp greenish brown fruiting and flowering vegetative material, weight approx 250.7 gms and it was mark as Ex.A1. After chemical examination of the substance Ex. A1, the same was found to be ganja (cannabis). After the examination the remnants of the exhibits were kept in a parcel which was sealed with the seal of AY FSL DELHI.
I prepared the detailed report bearing no. SFSL DLH /1765/CHEM/651/21 dated 17.03.2021 which is Ex.PW14/A (running into two pages) bearing my signature at point A and B. I submitted my report in a sealed envelope along with the sealed parcel for onward transmissions to the forwarding agency."
160. The witness was cross-examined at length. Relevant portion of the same is as under :
"I measured the weight of the exhibit. I have not segregated the fruits and flowers from the vegetative material and have not weighed the same separately. I cannot tell the total quantity of the fruits and flowers of the vegetative material since I have not counted the same.
Q. whether any chemical was used in the examining whether the substance was ganja and whether there was any change in colour upon using such chemical? Ans. I have conducted contraband with the chemical Fast-Blue B Test which gives scarlet colour of different cannabinoides. Scarlet colour is the combination of different colour viz. Red, violet and orange.
Q. Can you explain scarlet colour?DLSH010057882021 Page 94 of 102
SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act Question disallowed the same has already been explained and the colour can obviously not shown by the witness here in the court at this stage. It is the cannabinoides which give colour upon testing and as there are N number of cannabinoides in ganja, therefore upon testing each cannabinoides gave different colour ranging from purple to red. However if Duquenois - Levine Test is done then the test result comes out to be purple. We used to prepare notes regarding the tests conducted by our unit. It is correct that I have not annexed the said notes along with my report. It is wrong to suggest that I have not conducted any examination of the exhibit and for the said reason the notes prepared by us were not annexed with my report."
161. In light of the aforesaid deposition of PW14, it was argued by the Ld. Counsel for the accused that the fruits and flowers of the vegetative material were never segregated by either the members of the raiding team or by the FSL expert (PW14). Hence, the entire vegetative material allegedly recovered from the accused cannot be said to be Ganja.
162. It was also submitted by the Ld. Counsel that the witnesses of the raiding team described the recovered substance as Hara Ghaasnuma beejyukta badbudaar substance, which shows that neither the fruits, nor flowers of the cannabis plant were present in the recovered vegetative material, meaning thereby that the vegetative material was not Ganja.
163. PW1 SI Narender Singh in his examination-in-chief mentioned the recovered substance as "Some leaves, seeds moisture grass etc. which was seems like Ganja on physical appearance". PW3 Ct. Mohit and PW7 HC Rajiv Kumar mentioned the recovered substance as "Hara ghaasnuma beejyukta badbudar substance" and both of them stated that the same looked like Ganja as per its physical appearance.
164. In the opinion of the Court, to appreciate the aforesaid arguments, it would be appropriate to reproduce the definition of cannabis (hemp) is contained in Section 2(iii) of NDPS Act, as under :
"(iii) "cannabis (hemp)" means--DLSH010057882021 Page 95 of 102
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(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any rink prepared therefrom"
(emphasis supplied)
165. As per definition, 'Ganja' is flowering and fruiting tops of cannabis plant. The definition clarifies that the seeds and leaves of cannabis plant are not Ganja, only when they are not accompanied by the tops, meaning thereby, that if the seeds and stems are accompanied with flowering and fruiting tops, then the entire substance is "Ganja".
166. A similar question came up for consideration before Hon'ble Apex Court in Shiv Kumar Mishra vs. State of Goa through Home Secretary MANU/SC/0262/2009. Hon'ble Apex Court observed as under :
7. Learned Counsel for the appellant submitted that having regard to the definition of "Ganja" in Section 2(iii)(b) of the NDPS Act, the seeds and leaves ought not to have been included while weighing the seized contraband since the same was not accompanied by tops. It was urged that excluding the seeds and leaves the actual weight of the seized Ganja would be below 1 Kg. which would attract a much lesser punishment of imprisonment for a term which could extend to six months or with fine, which could extend to Rs. 10,000/-, or with both.
8. Learned Counsel for the appellant submitted that the order of the High Court reducing the period of sentence to one year was erroneous since the seized Ganja would be less than 1 Kg. and could not, therefore, be taken to comprise commercial quantity.
9. Despite several opportunities, the State did not appear to contest the matter and the same was taken up for final disposal in the absence of the State.
10. Section 2(iii)(b) of the NDPS Act defines "Ganja" as follows:
'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;
An attempt has been made on behalf of the appellant to convince us that the seized Ganja was not accompanied by flowering or fruiting tops and hence the weight of the seeds and the leaves would have to be excluded on account of the said definition, which would reduce the weight of the seized Ganja considerably so as to exclude it DLSH010057882021 Page 96 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act from the definition of commercial quantity and attract a much lesser sentence than when the seized commodity was treated to be of commercial quantity.
11. The submissions made by learned Counsel for the appellant are not convincing since from the evidence on record it has been established that the seized Ganja consisted of a greenish brown colour leafy and flowery parts of the plant (in moist condition) which, in terms of the definition of the expression "Ganja", would include the seeds and leaves of the cannabis plant since the seized Ganja was accompanied by the flowery parts of the plant. As far as exclusion of the moisture content of the seized Ganja is concerned, there is nothing in the NDPS Act to suggest that when the weight of a quantity of Ganja is to be ascertained, the moisture content has to be separately ascertained and excluded. On the other hand, we are of the view that the weight of the contraband would be the weight taken at the time of seizure."
167. In the aforesaid judgment, Hon'ble Apex Court, was dealing with an appeal in which the accused was convicted for being in possession of Ganja. The court categorically observed that the definition of the expression "Ganja", would include the seeds and leaves of the cannabis plant where the seized Ganja was accompanied by the flowery parts of the plant.
168. To better understand as to why the recovery witnesses stated that the recovered substance was "Hara ghasnuma beejyukta badbudaar substance", it is necessary to understand what kind of flowers a cannabis plant bear do i.e. whether the flowers are like that of rose, marigold etc or of some other type. The court during its research on the topic found some images of the cannabis flower and fruiting material on Wiki, which are reproduced as under to better understand the morphology of cannabis plant.
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169. Upon seeing the kind of flower that cannabis plant produces, one can better understand as to why the police officials mentioned it as "Hara ghasnuma beejyukta badbudaar substance". A cannabis flower features dense clusters of buds surrounded by sticky, cannabinoid- and terpene-laden trichome glands and pistils. Pistils are the cannabis' plants reproductive organ and its purpose is to receive pollen and produce seeds. Pistils serve as an indicator of the plant's maturity as they change colors over the plant's flower cycle from white to yellow, orange or red at full maturity.
170. Upon understanding the morphology of the cannabis plant, one can decipher, as to why the police officials say that it is "Hara ghasnuma beejyukta badbudaar substance".
171. Moreover, the words "beejyukta" and "ghaasnuma", do not mean seeds and grass, what it means is that the substance in its physical form is having physical appearence like that of seeds and grass.
172. Thus, the court finds no substance in the argument of the Ld. Defence Counsel that the recovered substance was not Ganja, or that the weight of the seeds and leaves is to be excluded from that of the flowering and fruiting material. As pointed out by the Hon'ble Apex Court in the aforesaid judgment, as per the definition of "Ganja" in section 2 (iii)(b), the expression "Ganja" would include seeds and leaves of the cannabis plant since the seized Ganja was accompanied by the flowery parts of the plant as stated by PW-14. Videography and Photography not done during the proceedings
173. It was also submitted that the proceedings were not videographed or photographed, which raises a doubt as to whether the proceedings took place or not in the manner as pointed out by the prosecution.
174. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2021.
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175. 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?
176. Ld. Counsel as regards absence of videography and photography during the proceedings relied upon bail orders in Rohan Malik (supra) and Seema (supra) passed by the Hon'ble Delhi High Court.
177. As per the aforementioned orders, though it is preferable that videography or photography be conducted during the course of investigation, however, it is not a sine qua non in a case of recovery of contraband under the NDPS Act.
178. Perusal of judgment titled Rohan Malik (supra) and Seema (supra) reveal that the said judgments were passed in bail applications, where the accused persons were arrested in NDPS case. Thus, the Hon'ble court at that stage considered the importance of videography and photography of the search and seizure proceedings, as the availability of the same at that stage of proceedings, would have fortified the case of the prosecution and may have raised the rigours under section 37 NDPS Act to a higher pedestal. The said judgments were not in cases where the recovery witnesses had been examined and the recovery was duly proved by them through deposition before the court.
179. 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. Presumption
180. 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 permits DLSH010057882021 Page 99 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act a presumption arising from the possession of illicit items. It is incumbent upon the accused to substantiate his claim of either unawareness or absence of conscious possession of contraband. Hon'ble Apex Court in Mohan 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 reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" 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 existence 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. (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 "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession 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 DLSH010057882021 Page 100 of 102 SC/216/2021 State Vs.Farukh @ Chapta FIR No.46/21 PS: Shahdara U/s.20(b)(ii)(C) NDPS Act of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant 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 because 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 possession 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 discovery 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 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."
181. 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 accused 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 Section 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 satisfactorily.
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182. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Haryana (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 process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation 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"
183. 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 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 20(b)(ii)(C) of the NDPS Act.
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184. The prosecution proved beyond reasonable doubt that the accused Farukh @ Chapta was in possession of commercial quantity of Ganja (i.e. more than 20 kgs), as 23.5 kgs of Ganja was recovered from the possession of accused. 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 / ganja without any authority or licence to be in possession of the same.
185. Accordingly, accused Farukh @ Chapta is convicted of the offence punishable under Section 20(b)(ii)(C) of the NDPS Act.
186. Copy of the judgment be also mailed to DLSA, Shahdara District.
187. Convict to be heard on sentence on 28.3.2025 at 2:00 p.m. SAURABH Digitally signed Announced in the open Court PARTAP by SAURABH PARTAP SINGH LALER SINGH on 27.03.2025 LALER Date: 2025.03.27 16:23:49 +0530 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi