Delhi District Court
State vs Mukesh @ Mungari on 9 February, 2026
DLSH010009662020 Page 1 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Mukesh @ Mungari, S/o Late Sh. Harnaam, R/o H.No. 28/129, Kasturba Nagar, Shahdara, Delhi-110032. ....accused (Sh. Uday Vir Singh, Legal Aid Counsel) Date of institution : 30.01.2020 Date when Judgment reserved : 20.01.2026 Date of Judgment : 09.02.2026 Final Decision : Acquitted DLSH010009662020 Page 2 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per prosecution are that on 05.04.2018 on receipt of secret information that accused Mukesh @ Mungari is selling heroin/ smack in Kasturba Nagar outside H.No. 28/129 and if raid would be conducted, he can be apprehended, information was given to SHO and raiding party was constituted. At the spot, on the pointing out of secret informer, accused was apprehended at about 10:10 pm from outside of his house bearing no. 28/129, Kasturba Nagar, Delhi. He was informed about his rights regarding his search in the presence of Gazetted Officer or Magistrate and notice U/s 50 NDPS Act was given to which he refused. In the meantime, SHO reached the spot. On conducting search of accused, one transparent polythene containing four currency notes of Rs. 100/-; two currency notes of Rs. 50/- i.e. total Rs. 500/- and 116 paper pudiya containing brown colour (katthai ) powder were recovered from right side pocket of his wearing capri. On weighing and checking the 116 paper puriya, the same were found to contain total 14.210 gms heroin (diacetylmorphine). On the basis of which, the present FIR was registered U/s 21/61/85 NDPS Act. The contraband was seized and accused was arrested. The sampling of the contraband was done, IO filled the FSL form. FSL report dated 14.06.2018 has been received wherein it is mentioned that the samples were containing Diacetylmorphine, 6-monoacetylmorphine and acetylcodeine.
DLSH010009662020 Page 3 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 30.01.2020 charge-sheet was filed against accused Mukesh @ Mungari U/s 21/61/85 NDPS Act.
CHARGE
3. Vide order on charge dated 10.11.2021, charge U/s 21(b) NDPS Act was framed against accused Mukesh @ Mungari.
PROSECUTION EVIDENCE
4. To substantiate the aforementioned charge, the prosecution presented 14 witnesses. The details of these witnesses, alongwith the documents they presented during their testimonies, are listed below in tabular form:
PW number Brief role of Documents Description
and name of witness exhibited
witness
PW-1 ASI 1st IO, received Ex. PW-1/A DD No. 35A regarding secret information
Kadeer secret in compliance of provisions U/s 42 NDPS
Ahmad information, Act.
produced secret Ex. PW-1/B Seizure memo qua pullandas.
informer before
SHO, lodged Ex. PW-1/C Rukka.
DD No. 35A, Ex. PW-1/D Site plan.
member of
raiding party Ex. P-1 & Ex. Samples taken out from the recovered
who P-2 smack/ heroin/ contraband and sent to FSL.
apprehended the Ex. P-3 Contraband and pudiya recovered from the
accused, served (Colly.) possession of accused.
notice U/s 50
NDPS Act on Ex. PW-1/E Original notice U/s 50 NDPS Act addressed
the accused in to accused.
presence of
DLSH010009662020 Page 4 of 52
SC No. 30/2020
STATE Vs. MUKESH @ MUNGARI
FIR No. 166/2018
(Vivek Vihar)
U/s 21(b) NDPS Act
SHO Inspector
Mukesh Kumar,
recovered
contraband,
drawn samples,
sealed and
seized the case
property, SHO
also seized case
property,
handed over
seized
pullandas, FSL
form, carbon
copy and
original copy of
seizure memo to
SHO, prepared
rukka etc.
PW-2 HC Member of Ex. PW-2/1 Arrest memo of accused.
Yogesh raiding party Ex. PW-2/2 Personal search of accused.
Bhati and one of the
recovery Ex. PW-2/3 Disclosure statement of accused.
witness who got Ex. PW-2/D1 DD Entry No. 37A whereby raiding team
the FIR left from Police Station.
registered after
receiving rukka
from IO.
PW-3 HC MHC(M) Ex. PW-3/1 Entry No. 266 dated 05.04.2018 in register
Surender Pal no.19 regarding deposition of exhibits and
articles i.e. currency recovered from the
possession of accused during his search.
PW-4 Duty Officer Ex. PW-4/A Print out of copy of FIR.
Retired SI (OSR)
Ram Singh Ex. PW-4/B Endorsement on the rukka.
Ex. PW-4/C Certificate U/s 65-B of Indian Evidence
Act.
Ex. PW-4/D Copy of DD No. 5A regarding arrival of
Inspector Mukesh Kumar.
DLSH010009662020 Page 5 of 52
SC No. 30/2020
STATE Vs. MUKESH @ MUNGARI
FIR No. 166/2018
(Vivek Vihar)
U/s 21(b) NDPS Act
Ex. PW-4/E Copy of GD No. 8A regarding arrival of
Inspector Mukesh Kumar.
PW-5 HC Member of Ex. PW-5/A Carbon copy of notice U/s 50 NDPS Act.
Aas Mohd. raiding party
and one of the
recovery
witness.
PW-6 Sh. Expert witness Ex. PW-6/A His detailed report bearing no. FSL.2018/
Subhash from FSL (running into C-3297dated 14.06.2018.
Chandra, two pages)
Senior
Scientific
Officer,
Chemistry,
FSL,
Rohini,
Delhi
PW-7 HC Reader to ACP Ex. PW-7/A & Original report U/s 57 NDPS Act regarding
Swayam Ex. PW-7/B seizure of smack/ heroin sent by SI Arvind
Prakash (OSR) Kumar and corresponding entry no. 1418
Singh regarding the same in dak register on
06.04.2018.
PW-8 SI 3rd IO who
Arjun Singh prepared
charge-sheet
and submitted
the same for
trial.
PW-9 SHO, P.S.
Inspector Vivek Vihar
Mukesh who conducted
Kumar proceedings U/s
55 NDPS Act.
He forwarded a
report U/s 57
NDPS Act to
ACP.
PW-10 ASI Member of
Kuldeep raiding party
DLSH010009662020 Page 6 of 52
SC No. 30/2020
STATE Vs. MUKESH @ MUNGARI
FIR No. 166/2018
(Vivek Vihar)
U/s 21(b) NDPS Act
Singh and one of the
recovery
witness. Seal
was handed over
to him after use
by ASI Kadeer
Ahmad.
PW-11 ACP, Vivek
retired ACP Vihar Sub-
Mohd. Iqbal Division to
whom secret
information and
report U/s 57
NDPS Act
forwarded.
PW-12 HC He obtained two Ex. PW-12/A Copy of RC No. 102/21/18 and
Shishpal sealed parcels (OSR) and Ex. acknowledgment of FSL.
alongwith PW-12/B
forwarding (OSR).
letter from
MHC(M) and
deposited the
parcels at FSL.
PW-13 ASI MHC(M) Ex. PW-13/A Entry vide serial no. 267 in register no.19
Ratan Lal (OSR) regarding depositing of personal search
articles of accused in the maalkhana.
PW-14 SI 2nd IO who
Arvind prepared site
plan, arrested
accused,
conducted his
personal search,
recorded his
disclosure
statement and
deposited
personal search
articles of
accused with
DLSH010009662020 Page 7 of 52
SC No. 30/2020
STATE Vs. MUKESH @ MUNGARI
FIR No. 166/2018
(Vivek Vihar)
U/s 21(b) NDPS Act
MHC(M),
prepared report
U/s 57 NDPS
Act, sent
exhibits to FSL
and obtained
FSL result etc.
After examining the depositions of the witnesses mentioned in the table above, it is found that they gave evidence about the undermentioned facts for the prosecution:-
5. PW-1 ASI Kadeer Ahmad deposed that on 05.04.2018, he was posted at P.S. Vivek Vihar as ASI. On that day at about 8:40 pm, one secret informer came to office of this witness and he gave information to this witness that one person in the name of Mukesh @ Mungari was selling illegal contraband i.e. smack in small packet near his residence situated at 28/129, Kasturba Nagar, Delhi. This witness produced the secret informer before Inspector Mukesh Kumar and shared the said information with him. Inspector Mukesh verified the same and instructed this witness to do as per law. Thereafter, this witness lodged a DD No. 35A regarding the information in compliance of the provision U/s 42 NDPS Act. The same is Ex. PW-1/A. It is stated by him that upon this a raiding party was constituted consisting of HC Kuldeep, Ct. Aas Mohd, Ct. Yogesh Bhati and this witness. This witness briefed them and shared the said information. At about 9:35 pm, this witness alongwith above mentioned police officials with secret informer left the Police Station on two private motorcycles. This witness alongwith Ct.
DLSH010009662020 Page 8 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act Kuldeep were on motorcycle which was driven by Ct. Kuldeep. The secret informer, Ct. Aas Mohd and Ct. Yogesh Bhati were on the other motorcycle. This witness was having IO kit and electric weighing machine with him. At about 10:10 pm, they reached at the corner of the house of accused at 28/129, Kasturba Nagar, Delhi. Accused was standing at the outside of the corner of the above-mentioned house. This witness asked 4-5 public persons to join the investigation, but none agreed to join the investigation. He briefed the team.
It is stated by him that the secret informer pointed towards the accused and thereafter he left the spot. On the pointing out of the secret informer, HC Kuldeep got stopped him. This witness introduced himself and the members of raiding team to accused and told him that they have information that the accused was having illegal contraband i.e. smack in his possession. His search was necessary and if he wishes, then he can take search of this witness and other police staff. In the meanwhile, SHO Inspector Mukesh Kumar also reached there.
Thereafter, this witness apprised accused Mukesh @ Mungari for his legal rights by saying that he can get search this witness as well as search of the raiding team in the presence of any Gazetted Officer or the Magistrate, however accused refused to get search of the raiding team including this witness in the presence of any Gazetted Officer or the Magistrate. This witness prepared notice U/s 50 NDPS Act by putting a carbon copy. The original notice U/s 50 NDPS Act was served upon the accused. Accused told that he was illiterate and he can only sign the same and he further disclosed that he can understand Hindi. On which, he refused to take the search of the police party and also denied to DLSH010009662020 Page 9 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act call any Gazetted Officer or Magistrate at the spot at the time of his search. Thereafter, the said denial of accused was noted down by this witness in his handwriting on the carbon copy of notice U/s 50 NDPS Act and the said carbon copy is Mark 'X' which bears signature of this witness at Point-A. The denial of the accused is encircled at Point-Y. Accused put his signature at Point-B on the said notice.
It is stated by him that he conducted the personal search of the accused and from his right pocket one small pouch of polythene was recovered. This witness opened the said polythene pouch and found containing 116 pudiya of contraband i.e. smack. Rs. 500/- was also recovered from personal search of accused. This witness mixed 116 pudiya of smack by putting it on the other polythene pouch.
It is stated by him that he weighing the said smack/ heroin with the help of electronic weighing machine and it was found 14.210 grams. He took two samples of 2-2 grams from the polythene which was recovered from the accused. This witness kept the said samples in two small polythene pouches and converted into pullanda and remaining heroin/ smack was kept in the same polythene pouch and prepared the pullanda. Both the samples were marked as 1 and 2 and the pullanda was marked as Mark-A. The above-mentioned pullandas were sealed with seal of KA. Thereafter, SHO also seized the said pullandas and put his counter seal MK. Thereafter, he left the spot. This witness handed over the seized pullandas and FSL form, carbon copy of seizure memo and original copy of seizure memo to SHO.
It is stated by him that the said pullandas were taken into police DLSH010009662020 Page 10 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act possession vide seizure memo which is Ex. PW-1/B. The seizure memo was also signed by the accused. The FSL forms were filled at the spot and seal after use was handed over to HC Kuldeep.
Thereafter, this witness prepared the rukka which is Ex. PW-1/C. He handed over the same to Ct. Yogesh Bhati for registration of the case. Ct. Yogesh Bhati went to the Police Station.
It is stated by him that after registration of FIR, Ct. Yogesh Bhati alongwith SI Arvind Kumar came at the spot and this witness handed over the accused to him. SI Arvind Kumar prepared site plan at instance of this witness which is Ex. PW-1/D. He recorded statement of this witness. Thereafter, this witness left the spot.
This witness correctly identified the accused in the Court. MHC(M) has produced one white colour envelope Mark S1 bearing the seal with the seal of FSL SC DELHI with case particulars. Seals were broken and the envelope was opened and found containing one small plastic pouch containing reddish powder. On seeing the same, it is stated by this witness that it was the sample which was taken from the smack/ heroin which was recovered from the possession of accused. The same is Ex. P-1.
MHC(M) has produced one white colour envelope Mark S2 bearing the seal with the seal of FSL SC DELHI with case particulars. Seals were broken and the envelope was opened and found containing one small plastic pouch containing reddish powder. On seeing the same, it is stated by this witness that it was the sample which was taken from the smack/ heroin which was recovered from the possession of accused. The same is Ex. P-2.
DLSH010009662020 Page 11 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act MHC(M) has produced one white colour cloth pullanda bearing the the seal with the seal of MK with case particulars. Seals were broken and found containing one transparent polythene bag which was opened and containing one pouch of reddish colour powder. Pudiyas of papers were also found in the said plastic polythene and it was counted and found 116. On seeing the same, it is stated by this witness that the above-mentioned contraband and pudiya was recovered from the possession of accused. The same is Ex. P-3 (Colly).
MHC(M) has produced one notice U/s 50 NDPS Act of the accused Mukesh. The same is Ex. PW-1/E which bears signature of this witness at Point-A. During his cross-examination on behalf of accused, it is stated by him that the secret information was not written on plain paper and it was directly recorded in roznamcha. It is admitted by him that he has not mentioned the registration number of the motorcycle in the charge-sheet (on which they reached the spot). It is admitted by him that other houses are situated nearby the House No. 28/129, Kasturba Nagar. It is admitted by him that the people are residing in nearby houses. It is admitted by him that he had not contacted any resident before conducting the raid.
6. PW-2 HC Yogesh Bhati deposed that on 05.04.2018, he was posted as Constable at P.S. Vivek Vihar. On that day, he was having duty in the area. In the evening hour, he was in the Police Station and at around 9:30 pm, DO informed him that a raiding team has been constituted by ASI Kadeer Ahmad on the directions of the SHO concerned. Thereafter, this witness alongwith Ct.
DLSH010009662020 Page 12 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act Aas Mohd., HC Kuldeep Singh and IO ASI Kadeer Ahmad reached at Kasturba Nagar. This witness was on motorcycle with Aas Mohd. which was driven by him (Aas Mohd.) and on the other motorcycle IO was with HC Kuldeep and the said motorcycle was driven by him. At around 10:05 pm, when they reached at the spot, IO asked 4-5 persons to join the investigation, but none had agreed to join the investigation and left the spot without disclosing their names and addresses.
Thereafter, raiding team alongwith secret informer reached near House No. 28/129, Kasturba Nagar, Delhi. Accused Mukesh @ Mungari (correctly identified by this witness in the Court) was standing near the above- said house and on seeing the police persons, he tried to flee away from there, but he was overpowered and apprehended by them.
It is stated by him that IO conducted the personal search of the accused and found one pudiya/ pouch of transparent polythene which contained brown colour substance i.e. smack from the right pocket of his capri. Rs. 500/- (in the denomination of 4 X 100 and 2 X 50) was also found from the said pocket. IO seized the same by converting into pullanda vide seizure memo already Ex. PW-1/B and sealed with the seal of 'KA'.
It is stated by him that accused was served with notice U/s 50 NDPS Act by the IO. The notice is already Mark-X. Thereafter, IO asked the accused whether he wanted to get his search before the Gazetted Officer or Magistrate, but the accused had refused for the same. The SHO also came at the spot at the request of the IO and thereafter, he also put his seal 'MK' on the pullandas. SHO left the spot and DLSH010009662020 Page 13 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act took with himself the pullandas and the seizure memo.
It is stated by him that IO prepared the rukka which is already Ex. PW-1/C and handed over the same to this witness for registration of FIR. This witness reached the Police Station and got registered the FIR and thereafter, this witness alongwith 2nd IO SI Arvind Kumar came at the spot. The 2 nd IO prepared all the documents i.e. arrest memo Ex. PW-2/1, personal search memo Ex. PW-2/2 and disclosure statement Ex. PW-2/3 in presence of this witness, all bearing signatures of this witness at Point-A. Thereafter, medical examination of the accused was got conducted by this witness at Hedgewar Hospital and after that the accused was taken to the Police Station and lodged in the lock-up.
During leading questions put to him by Ld. Addl. PP for the State, it is admitted by him that IO had recorded his statement U/s 161 Cr.P.C. It is admitted by him that he had told to the 2 nd IO that the 1st IO introduced himself and the raiding team members to the accused and apprised him of his legal rights that he can search the IO and the raiding team prior to his own search and he was also told the meaning of Gazetted Office and Magistrate. It is admitted by him that the notice U/s 50 NDPS Act was served on the accused before his search. It is admitted by him that the accused had refused to get himself searched in the presence of Gazetted Officer or Magistrate and his refusal was written by 1st IO as the accused was semi-literate and he only knew to put his signature in Hindi. It is admitted by him that after serving the notice U/s 50 NDPS Act and refusal of the accused, 1 st IO again asked 4-5 family members of the accused to join the investigation, but none agreed to join the investigation. It DLSH010009662020 Page 14 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act is admitted by him that the transparent polythene which was recovered in the search of the accused contained 116 pudiya of dark brown colour substance i.e. smack. It is admitted by him that 1 st IO poured and mixed all the 116 pudiya on a white paper and weighed the same on the weighing machine and found to be 14.210 grams. It is admitted by him that the IO took two samples of 2 grams each from the polythene. It is admitted by him that IO kept the said samples into two small polythene pouches and converted into pullandas and remaining heroin/ smack was kept in the same polythene pouch and converted into pullanda. It is admitted by him that both the sample pullandas were marked as 1 & 2 and the pullanda of remaining contraband was marked as Mark-A by 1 st IO. It is admitted by him that the 1 st IO filled the FSL form at the spot. It is admitted by him that 2nd IO prepared the site plan already Ex. PW-1/D at the instance of the 1st IO.
MHC(M) produced one white cloth pullanda having the Court seal as the case property had already been opened in the testimony of PW-1 on 25.10.2023 already Ex. P-3 (Colly). The pullanda is also having the details of the present case. Seal is duly intact. The pullanda is opened in the Court and found containing one transparent polythene bag which was opened and containing one pouch of reddish colour powder. Pudiyas of papers were also found in the said plastic polythene and it was counted and found 117. On seeing the same, it is stated by this witness that the above-mentioned contraband and pudiyas were recovered from the possession of the accused.
Ex. PW-1/E, Ex. P-1 and Ex. P-2 also produced by MHC(M) during testimony of this witness and on seeing the same, he deposed on the DLSH010009662020 Page 15 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act same lines as deposed by PW-1 ASI Kadeer Ahmad.
MHC(M) has also produced register no. 19 wherein entry no. 266 regarding deposition of the exhibits and the articles i.e. currency recovered from the possession of accused during his search and currency notes of Rs. 500/- in the denomination of Rs. 100 X 4 and Rs. 50 X 2 in a white colour envelope. The envelope was without seal. However, the details of the present case is written on the envelope. The currency notes were shown to the witness and he submits that the said currency notes were recovered from the possession of the accused.
During his cross-examination on behalf of accused, it is stated by him that the raiding team left from Police Station vide DD entry no. 37A Ex. PW-2/D1. It is stated by him that the notice U/s 50 NDPS Act was given to accused 2-3 minutes after the alleged recovery from him. On a Court questing being put to him, he changed his version and stated that he got confused because of time gap and stated that the notice U/s 50 NDPS Act was given to the accused after alleged recovery from him.
7. PW-3 HC Surender Pal deposed that he is posted as MHC(M) in the P.S. Vivek Vihar since January 2023. He has brought the register no.19 from the maalkhana wherein entry no. 266 dated 05.04.2018 regarding deposition of the exhibits and the articles i.e. currency recovered from the possession of accused during his search. Copy of the entry no. 266 is taken on record and same is Ex. PW-3/1. He does not have the personal knowledge about the case or the articles and exhibits deposited in the maalkhana.
DLSH010009662020 Page 16 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act
8. PW-4 Retired SI Ram Singh deposed that on 06.04.2018, he was posted at P.S. Vivek Vihar as ASI and was working as Duty Officer from 12:00 midnight to 8:00 am. At about 12:45 am, Ct. Yogesh brought the rukka sent by ASI Kadir Ahmad, contents of which were dictated by this witness to the Computer Operator and the FIR was registered vide FIR No. 166/2018 and computerized copy of FIR was obtained. This witness had handed over the copy of FIR and the original rukka to Ct. Yogesh to hand over the same to SI Arvind as investigation was marked to him. The copy of FIR is Ex. PW-4/A (OSR). This witness had made endorsement on the rukka and the same is Ex. PW-4/B. In this regard, the certificate U/s 65-B of the Evidence Act is Ex. PW-4/C. He has also brought the original DD register. Copy of DD No. 5A regarding arrival of Inspector Mukesh Kumar is Ex. PW-4/D. Copy of GD No. 8A regarding arrival of Inspector Mukesh Kumar is Ex. PW-4/E.
9. PW-5 HC Aas Mohd. deposed that on 05.04.2018, he was posted as Constable at P.S. Vivek Vihar.
He deposed on the same lines as deposed by PW-2 HC Yogesh Bhati.
It is further stated by him that ASI Kadir Ahmad was carrying IO kit, field testing kit and electronic weighing machine.
It is stated by him that secret informer also accompanied them to the spot in his own vehicle.
It is stated by him that ASI Kadir Ahmad introduced the police DLSH010009662020 Page 17 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act party to accused and informed him that they have secret information that he is carrying smack and he further apprised the accused about his legal rights 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 and also explained meaning of Gazetted Officer and Magistrate in vernacular to the accused, however accused refused to get himself searched in the presence of any Gazetted Officer or the Magistrate as well as to take search of the raiding team members. ASI Kadir Ahmad prepared notice U/s 50 NDPS Act and handed over the same to accused. In the meanwhile, SHO of the Police Station Inspector Mukesh Kumar also arrived at the spot. The accused told that he is illiterate and can only sign. Thereafter the said denial of accused was noted down by ASI Kadir Ahmad in his own handwriting on the carbon copy of notice U/s 50 NDPS Act which is Ex. PW-5/A. Refusal of the accused is at Point-Y and his signatures at Point- B. It is stated by him that ASI Kadir Ahmad conducted the search of the accused and one pudiya/ pouch of transparent polythene was recovered from the right pocket of his half capri. Upon checking the polythene pouch it was found containing 04 currency notes of Rs. 100/-, 02 currency notes of Rs. 50/- and 116 paper pouches/ pudiya. Upon checking the paper pouches, all were found containing brown colour powder which was checked through field testing kit. Result for heroin was found positive. The contents of all the paper pouches were emptied in a polythene pouch which was weighed on electronic weighing machine and total weight was found to be 14.210 grams. ASI Kadir Ahmad took out two samples from the recovered contraband, kept the same into separate plastic pouches and two separate cloth parcels of the same were made DLSH010009662020 Page 18 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act which were sealed with the seal of KA and was marked as S1 and S2. ASI Kadir Ahmad kept the plastic pouch containing remaining contraband, 116 paper pouches and recovered currency notes in the same polythene recovered from the pocket of capri of accused, prepared cloth pullanda of the same which was sealed with the seal of KA and marked as A. ASI Kadir Ahmad filled the FSL form. Seal was handed over to HC Kuldeep after use. ASI Kadir Ahmad prepared seizure memo already Ex. PW-1/B. He handed over the three sealed parcels, FSL form and copy of seizure memo to Inspector Mukesh Kumar who put his counter-seal on all the three sealed parcels and FSL form with his seal of MK. Thereafter, SHO left the spot.
It is stated by him that ASI Kadir Ahmad prepared the rukka and handed over the same to Ct. Yogesh Bhati for registration of FIR. After some time Ct. Yogesh Bhati alongwith second IO SI Arvind Kumar came at the spot. ASI Kadir Ahmad handed over the custody of the accused and documents prepared by him to SI Arvind Kumar. SI Arvind Kumar prepared site plan at the instance of ASI Kadir Ahmad. SI Arvind Kumar arrested the accused vide arrest memo already Ex. PW-2/1 and personally searched him vide personal search memo already Ex. PW-2/2. One notice U/s 50 NDPS Act was recovered from personal search of accused. SI Arvind Kumar recorded disclosure statement of the accused already Ex. PW-2/3.
It is stated by him that after medical examination of the accused, he was brought back to the Police Station. The original notice U/s 50 NDPS Act recovered from the personal search of the accused already Ex. PW-1/E bearing signature of this witness at Point-B. DLSH010009662020 Page 19 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act It has been observed that the case properties have already been exhibited during the testimony of earlier witnesses. The Ld. Defence Counsel do not oppose the same. Hence, the production of the case property is dispensed with.
This witness was thoroughly cross-examined on behalf of accused.
10. PW-6 Dr. Subhash Chandra, Senior Scientific Officer, Chemistry, FSL, Rohini, Delhi deposed that he is working as Senior Scientific Officer since 2016 and working in FSL, Rohini since 2000. On 18.04.2018 two sealed cloth parcels Mark S1 and S2 each sealed with the seals of KA and M.K. in FIR No. 166/2018 dated 06.04.2018, U/s 21 NDPS Act, P.S. Vivek Vihar alongwith specimen seals, FSL form (forwarding letter), copy of FIR, copy of seizure etc. were received in their office from SHO P.S. Vivek Vihar vide letter reference no. 1370/R/SHO/Vivek Vihar dated 18.04.2018. Same was marked to this witness for chemical examination. The seals were duly intact and on tallying with specimen seals they were found similar.
On opening parcel S1, it was found containing Ex. S1 i.e. reddish brown colour powdery material stated to be smack weighing approximately 02 grams with self adhesive polythene.
On opening parcel S2, it was found containing Ex. S2 i.e. reddish brown colour powdery material stated to be smack weighing approximately 2.1 grams with self adhesive polythene.
This witness examined the exhibits from 20.04.2018 to 14.06.2018. On chemical, TLC, GC and GC-MS examination, Ex. S1 and Ex.
DLSH010009662020 Page 20 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act S2 were found to contain diacetylmorphine, 6-monoacetylmorphine and acetylcodeine. Ex. S1 and Ex. S2 were found to contain diacetylmorphine 8.3% and 7.2%, respectively.
After the examination, the remnants of the exhibits were kept in two separate parcels and sealed with the seal of SC FSL DELHI.
This witness prepared the detailed report bearing no. FSL.2018/C- 3297 dated 14.06.2018 is Ex. PW-6/A (running into two pages) bearing his signature at Points A and A1. After preparation of report, same was kept in a sealed envelope. He submitted his report and parcels for onward transmission to the forwarding agency.
11. PW-7 HC Swayam Prakash Singh deposed that he is working in the Office of Reader to ACP Vivek Vihar Sub-division. He has brought the original report U/s 57 NDPS Act dated 06.04.2018 prepared by SI Arvind Kumar received in their office vide entry no. 1418 in the Dak Register on 06.04.2018.
Original report U/s 57 NDPS Act is taken on record. Same is Ex. PW-7/A. He has brought the original Dak Register pertaining to year 2018. Copy of entry no. 1418 is Ex. PW-7/B (OSR).
12. PW-8 SI Arjun Singh deposed that on 20.05.2019 he was posted at P.S. Vivek Vihar as SI. On that day further investigation of the case was marked to him. After going through the file, he found that the investigation has already been completed. He prepared the charge-sheet and submitted the same for trial.
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13. PW-9 Inspector Mukesh Kumar deposed that on 05.04.2018, he was posted at P.S. Vivek Vihar as SHO. On that day ASI Kadeer Ahmad produced one secret informer in office of this witness at about 8:50 pm and briefed him about secret information. This witness made enquiries from secret informer, who told that one person namely Mukesh @ Mungari is selling smack outside H.No. 28/129, Kasturba Nagar, Delhi and can be apprehended, if raided. After satisfying himself from the secret information, this witness went to ACP Office and told him about the information, who directed to constitute a raiding team under the leadership of ASI Kadeer Ahmad and take immediate legal action. ASI Kadeer Ahmad lodged DD No. 35A regarding secret information and placed the copy of the same before this witness which is already Ex. PW- 1/A which bears his signature at Point-A. Thereafter, ASI Kadeer Ahmad left the Police Station alongwith HC Kuldeep, Ct. Aas Mohd and Ct. Yogesh Bhati for the purpose of raid vide DD No. 37A already Ex. PW-2/D1 which was later on attested by this witness at Point-A. It is stated by him that he left the Police Station for area patrolling and at about 10:50 pm when he reached outside H.No. 28/129, Kasturba Nagar, in Govt. vehicle being driven by govt. driver, ASI Kadeer Ahmad alongwith other staff met this witness. Accused Mukesh @ Mungari (correctly identified by this witness in the Court) was also found present in their custody. ASI Kadeer Ahmad told that he has already given notice U/s 50 NDPS Act to the accused. Accused told that he is illiterate and can only sign. ASI Kadeer Ahmad recorded refusal of accused on the copy of notice U/s 50 NDPS Act on which DLSH010009662020 Page 22 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act the accused has signed. ASI Kadeer Ahmad requested 4-5 public persons to join the investigation, but none agreed to join the investigation and left without disclosing their names and addresses while seeking their personal excuses. No notice could be served upon them due to paucity of time.
Thereafter, ASI Kadeer Ahmad took search of the accused. One polythene pouch was recovered from the right pocket of his wearing half capri. The polythene pouch was containing cash of Rs. 500/- and some paper pouches which were found to be 116. Same were checked after opening and each were found containing brown colour powder. ASI Kadeer Ahmad tested some portion of powder on field testing kit, which gave positive result for heroin. ASI Kadeer Ahmad emptied the contents of all the paper packets into a plastic pouch and weighed the same on electronic weighing machine which was found to be 14.210 grams. ASI Kadeer Ahmad drawn two samples of 2-2 grams each in two separate polythene pouches, prepared cloth pullandas of the same which were sealed with the seal of KA and marked as S1 and S2. The polythene pouch containing remaining contraband and the empty 116 paper pouches into the same recovered transparent polythene by ASI Kadeer Ahmad, who prepared cloth pullanda of the same and sealed it with the seal KA and marked the pullanda as A. He filled the FSL form. Seal was handed over to HC Kuldeep after use.
It is stated by him that ASI Kadeer Ahmad handed over all the three sealed parcels, FSL form and copy of seizure memo to this witness. This witness put his counter seal on all the three sealed parcels and FSL form with his seal of MK. Thereafter, he came back to Police Station. After confirming the DLSH010009662020 Page 23 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act FIR Number from Duty Officer, this witness mentioned the same on all the three parcels and the pullandas. Thereafter, this witness called MHC(M) to his office at about 12:45 am alongwith register no.19 and handed over case property and all documents to MHC(M) CP. MHC(M) has made entry of all the details in the register no.19 which is already Ex. PW-3/1 and this witness also signed the same at Point-A. In this regard, this witness also got lodge a GD vide no. 5A at about 12:55 am dated 06.04.2018 and same is already Ex. PW-4/D which bears his signatures at Point-B. It is stated by him that on 06.04.2018, he had also forwarded to ACP Sub-Division, Vivek Vihar, one report dated 06.04.2018 U/s 57 NDPS Act prepared by SI Arvind Kumar regarding recovery of contraband and arrest of accused. The said report is already Ex. PW-7/A on the judicial record bearing his signature at Point-A. It has been observed that the case properties have already been exhibited during the testimony of earlier witnesses. The Ld. LAC does not oppose the same. Hence, the production of the case property is dispensed with.
14. PW-10 ASI Kuldeep Singh deposed that on 05.04.2018, he was posted as HC at P.S. Vivek Vihar.
This witness deposed on the same lines as deposed by PW-5 HC Aas Mohd.
15. PW-11 Retired ACP Mohd. Iqbal deposed that on 05.04.2018 he was posted as ACP, Vivek Vihar Sub-division. On that day, at about 9:00 pm, DLSH010009662020 Page 24 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act SHO Inspector Mukesh Kumar informed this witness about the secret information regarding smack to be recovered from accused Mukesh Kumar. This witness directed him to take immediate action.
It is stated by him that on 06.04.2018, his Reader placed before him one report U/s 57 NDPS Act regarding seizure of contraband and arrest of accused prepared by SI Arvind Kumar already Ex. PW-7/A and this witness has seen and signed the same at Point-B.
16. PW-12 HC Shishpal deposed that on 18.04.2018, he was posted at P.S. Vivek Vihar as Constable. On the directions of SHO of Police Station, this witness obtained two sealed parcels alongwith forwarding letter from MHC(M) vide RC No. 102/21/18. This witness deposited the parcels at FSL, Rohini, Delhi, came back to Police Station and deposited the acknowledgment of FSL with MHC(M).
It is stated by him that till the time the case property was in his possession, it has not been tampered with.
The copy of RC No. 102/21/18 is Ex. PW-12/A (OSR) which bears his signature at Point-A. Acknowledgment of FSL is Ex. PW-12/B (OSR) which bears his signature at Point-A.
17. PW-13 ASI Ratan Lal deposed that on 06.04.2018, he was working as MHC(M) at P.S. Vivek Vihar. On that day, at about 12:45 am, SHO/ Inspector Mukesh Kumar called this witness in his office and handed over to this witness three sealed parcels, FSL form and carbon copy of seizure memo on DLSH010009662020 Page 25 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act which the SHO has already put the FIR Number and his signatures. The pullandas and FSL form were already sealed with the seals of KA and MK. This witness made entry in register no.19 which is already Ex. PW-3/1. Inspector Mukesh Kumar also countersigned the entry in register no.19.
It is stated by him that on the same day SI Arvind Kumar deposited personal search articles of the accused in the maalkhana. This witness made entry vide serial no. 267 in this regard in register no.19. Copy of entry vide serial no. 267 is Ex. PW-13/A (OSR).
It is stated by him that on 18.04.2018, on the directions of IO, this witness handed over two sealed parcels to Ct. Shishpal to be deposited at FSL vide RC No. 102/21/18. After depositing the same, Ct. Shishpal came back and handed over acknowledgment of FSL to this witness. The copy of RC No. 102/21/18 is already Ex. PW-12/A which bears signature of this witness at Point-B and acknowledgment of FSL is already Ex. PW-12/B. It is stated by him that till the time the case property was in his possession, it has not been tampered with.
18. PW-14 SI Arvind deposed that on 06.04.2018, he was posted at P.S. Vivek Vihar as SI. On that day after registration of FIR, the investigation of the case was marked to this witness. Ct. Yogesh Bhati handed over copy of FIR and original rukka to this witness. This witness met SHO of the Police Station and obtained original seizure memo from him (SHO) as it was handed over to him by ASI Kadir Ahmad at the spot. Thereafter, this witness alongwith Ct. Yogesh Bhati reached the spot i.e. outside H.No. 28/129, Kasturba Nagar, Delhi DLSH010009662020 Page 26 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act where ASI Kabir Ahmad, HC Kuldeep and Ct. Aas Mohd met this witness alongwith accused Mukesh @ Mungari (correctly identified by this witness in the Court). ASI Kadir Ahmad handed over the accused alongwith the documents pertaining to this case prepared by him to this witness. This witness interrogated the accused. He prepared the site plan at the instance of ASI Kadir Ahmad which is already Ex. PW-1/D which bears signature of this witness at Point-X. It is stated by him that he arrested the accused vide arrest memo which is already Ex. PW-2/1 bearing his signature at Point-X. He also conducted personal search of the accused vide personal search memo already Ex. PW-2/2 bearing his signature at Point-X. One original notice U/s 50 NDPS Act was recovered from personal search of accused. This witness recorded disclosure statement of accused already Ex. PW-2/3 bearing his signature at Point-X. Accused was brought back to the Police Station and this witness deposited the personal search articles of the accused with MHC(M).
It is stated by him that on the same day, he prepared report U/s 57 NDPS Act and submitted the same for onward transmission to the senior officers. The original report is already Ex. PW-7/A bearing his signature at Point-C. On the same day accused was produced in the Court and was sent to J/C. It is stated by him that during investigation, he sent the exhibits to FSL and obtained the result of the same.
It is stated by him that he recorded statements of witnesses. In the month of February, 2019 he was transferred from Police Station and he DLSH010009662020 Page 27 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act submitted the case file with MHC(R).
19. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 27.10.2025.
STATEMENT OF ACCUSED
20. Statement of accused was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that the contraband was planted upon him. It is stated by him that the documents are manipulated and false. It is stated by him that he was falsely arrested and no notice U/s 50 NDPS Act was recovered from his possession. It is stated by him that the reports are false and are prepared at a later stage in order to fill up the lacunae. It is stated by him that the FSL report is false as no contraband was recovered from him. It is stated by him that being the police officials, they have deposed against him in order to prove their false case. It is stated by him that he was falsely implicated in the present case.
He chose not to lead any defence evidence.
FINAL ARGUMENTS
21. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record carefully.
22. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act have been complied with in the present matter at the time of DLSH010009662020 Page 28 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act recovery and thereafter. It is contended that 14.210 gms heroin from accused was recovered. There is nothing on record to suggest that police officials had any enmity with the accused. Thus, the offence U/s 21(b) NDPS Act is proved beyond reasonable doubt against the accused.
23. Per contra, it is contended on behalf of the accused that accused has been falsely implicated in the present case. It is pointed out that no CCTV footage qua arrest of accused or his movement towards the spot of his arrest has been filed on record. It is contended that there is no videography or photography of the recovery proceedings. No public person joined in the investigation as no recovery was effected from the alleged place and time. Section 52A NDPS Act has not been complied with in the present matter. Thus, story of the police is concocted one.
Legal Requirement to prove the Charges :-
24. Section 21 NDPS Act reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous DLSH010009662020 Page 29 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act 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)
25. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
26. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
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27. 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;
28. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
29. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :-
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
30. "Opium Derivatives" besides other things also means heroin. It is defined in Section 2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of DLSH010009662020 Page 31 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied)
31. 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."
32. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
33. In order to prove the charge U/s 21 NDPS Act, the prosecution is required to prove the following facts:
(1) That accused was in possession of contraband.
(2) That the possession was in contravention of the provision of DLSH010009662020 Page 32 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative/ heroin. (4) That the quantity of the contraband was intermediate for Section 21 NDPS Act.
34. 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. 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.
35. 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 DLSH010009662020 Page 33 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act 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 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 DLSH010009662020 Page 34 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act 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 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."
36. 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 DLSH010009662020 Page 35 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act 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.
37. 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 as held by Hon'ble Bombay High Court in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002 :-
"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.DLSH010009662020 Page 36 of 52 SC No. 30/2020
STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act 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."
Thus, 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.
38. 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 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
39. 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:-
DLSH010009662020 Page 37 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act Discussion on the point of compliance of Section 42 of NDPS Act
40. 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 consta- ble) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from per- sonal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in re- spect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or 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 en- try;
(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 be- lieve 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 of- fence punishable under this Act or furnish evidence of holding any illegally ac- quired 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 rea- son 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 authorisation cannot be obtained without affording opportunity for the conceal-DLSH010009662020 Page 38 of 52 SC No. 30/2020
STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act ment 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 sun- rise 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 sev-
enty-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
41. With respect to the compliance of Section 42 NDPS Act, PW-1 ASI Kadeer Ahmad has stated that on 05.04.2018 at about 8:40 pm a secret informer came to their office and informed that accused Mukesh @ Mungari is selling smack near his residence situated at 28/129, Kasturba Nagar, Delhi. PW- 1 shared the information with PW-9 Inspector Mukesh Kumar, who verified the same and further apprised the said information to PW-11 ACP Mohd. Iqbal. ACP directed Inspector Mukesh Kumar who further directed IO ASI Kadeer Ahmad to take action as per law. Thereafter, DD No.35A was lodged regarding the secret information in compliance of provisions of Section 42 NDPS Act. DD was placed before Inspector Mukesh Kumar. DD No. 35A is Ex. PW-1/A. A raiding team was also constituted by ASI Kadeer Ahmad including HC Kuldeep, Ct. Aas Mohd. And Ct. Yogesh Bhati.
PW-11 ACP Mohd. Iqbal deposed on the same lines. He stated that at about 9:00 pm he received verbal information from Inspector Mukesh Kumar qua secret information being received by PW-1 ASI Kadeer Ahmad. It is also stated by him that he directed Inspector Mukesh Kumar to take immediate action.
42. DD No. 35A (Ex. PW-1/A) dated 05.04.2018 corroborates the DLSH010009662020 Page 39 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act testimony of PW-1 as in the said DD Entry it is categorically mentioned that a secret informer arrived in their office at 20:40 hours (8:40 pm) and conveyed to ASI Kadeer Ahmad a secret information as stated above.
43. As per Section 42 of the NDPS Act, the Central Government and State Government may empower any officer, superior in rank to a Peon, Sepoy or Constable to take action U/s 42 i.e. conduct search, seizure and arrest as per the said section without warrant or authorisation. Further, in a notification dated 14.11.1985 which is reproduced here under officials of Delhi Police superior in rank to a Constable were conferred power to take action U/s 42 of the NDPS Act:-
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 DLSH010009662020 Page 40 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act evidence 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.
44. 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, PW-1 ASI Kadeer Ahmad was empowered to act U/s 42 of the NDPS Act.
45. In view of the above-stated circumstances, it can be held that provisions of Section 42 of NDPS Act qua recording of secret information and conducting search by empowered officer have been duly complied with in the present case, as per record.
46. Since the present case is a case of recovery from public place, hence, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case, rather Section 43 NDPS Act would come into play. Still due DLSH010009662020 Page 41 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act compliance of Section 42 NDPS Act duly proves how the police reached the spot where accused was arrested.
47. It is deposed by all the members of raiding team that they apprehended the accused from outside H.No. 28/129, Kasturba Nagar, Delhi i.e. a public road at around 22:10 hours and from right pocket of his wearing half capri contraband was recovered.
48. In view of the above-stated circumstances, it can be held that provisions of Section 43 NDPS Act have also been duly complied with in the present case, as per record.
Discussion on the point of compliance of Section 50 of NDPS Act
49. 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 DLSH010009662020 Page 42 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act 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)
50. As per prosecution case, after apprehension of the accused, he was served with mandatory notice under Section 50 of the NDPS Act and on his refusal to avail his legal rights, his search was carried out by PW-1 ASI Kadeer Ahmad, wherein from right side pocket of the half capri worn by him a transparent polythene containing 116 pudiyas containing contraband was recovered.
51. PW-1 in his deposition stated that he prepared notice U/s 50 NDPS Act and handed over the same to the accused. He also testified that he apprised accused regarding his legal rights, as mentioned in the notice U/s 50 NDPS Act. Similarly, deposed by other members of the police party. Their testimonies also found support from the testimony of PW-14 SI Arvind (second IO) who has stated that in the personal search of accused he found the original notice U/s 50 NDPS Act (carbon copy of the said notice is also on record exhibited as Ex. PW- 5/A bearing refusal of accused at Point-Y and his signature at Point-B). Original notice U/s 50 NDPS Act is on record and exhibited as Ex. PW-1/E.
52. Based on the testimonies of recovery witnesses, it appears that accused was served with notice U/s 50 NDPS Act before his bodily search was DLSH010009662020 Page 43 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act conducted and there was no violation of this mandatory provision as it is only on his refusal, his personal search was conducted by PW-1 ASI Kadeer Ahmad. However, following facts suggest that there is confusion amongst police officials qua service of notice U/s 50 NDPS Act to the accused :-
(a) In his cross-examination, it is stated by PW-2 HC Yogesh Bhati that notice U/s 50 NDPS Act was given to the accused 2-3 minutes after the alleged recovery. However, on Court question being asked, he corrected his statement.
(b) It is stated by PW-1 ASI Kadeer Ahmad that he served notice U/s 50 NDPS Act to the accused only when PW-9 SHO/ Inspector Mukesh Kumar had reached the spot, per contra it is stated by PW-9 SHO/ Inspector Mukesh Kumar that before his arrival at the spot ASI Kadeer Ahmad had given notice U/s 50 NDPS Act to the accused.
Thus, a slight doubt arises qua due service of notice U/s 50 NDPS Act on the accused in the present matter.
53. Section 55 of the NDPS Act was duly complied with in the present matter as SHO, P.S. Vivek Vihar PW-9 has also put his seal on the samples and contraband recovered, before depositing the same in the maalkhana. A entry qua same was also made in register no.19 which is exhibited on record as Ex. PW- 3/1.
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54. Section 57 of the NDPS Act which requires that :-
"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."
55. In the present matter, after arrest of the accused and recovery of contraband investigation of the case was marked to PW-14 SI Arvind, who had sent a special report U/s 57 NDPS Act on 06.04.2018 which is Ex. PW-7/A. The said report was also forwarded by SHO, P.S. Vivek Vihar. The said report was received vide diary no. 1418 dated 06.04.2018 in the office of ACP concerned. The said report has been duly proved on record. The report was submitted to ACP concerned within 48 hours of recovery. Accordingly, in the opinion of the Court the provisions of Section 57 of the NDPS Act were duly complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of compliance of Section 52A of NDPS Act.
56. As a matter of fact, in the present case the sampling proceedings were conducted, but not before the Ld. Magistrate U/s 52A of the NDPS Act, rather by IO ASI Kadeer Ahmad at the spot.
DLSH010009662020 Page 45 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act
57. It is contended by Ld. Defense Counsel that the entire recovery proceedings are vitiated due to non-compliance of Section 52A of the NDPS Act. However, Hon'ble Apex Court in a recent judgment titled as Bharat Amble Vs. State, Crl. Appeal No.250/25 of Hon'ble Apex Court has summarized the law on compliance of Section 52A NDPS Act as under :-
"50. We summarize our final conclusion as under: -
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the DLSH010009662020 Page 46 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt."
(emphasis supplied)
58. Though, in the present case there is no compliance of Section 52A NDPS Act, as the sampling proceedings were done by the IO, however, in view of the judgment in Narcotics Control Bureau Vs. Kashif, 2024 INSC 1045, decided on 20.12.2024 and Bharat Aambale (supra), the said fact by itself does not vitiate the trial. As held by the Hon'ble Court in absence of compliance U/s 52A NDPS Act the onus is upon the prosecution to prove by cogent evidence DLSH010009662020 Page 47 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
59. In the present case, ASI Kadeer Ahmad took out two samples of 2- 2 grams each from the recovered contraband. The samples were converted into pullandas by putting them in small polythene pouches. The samples were marked as 1 & 2 and sealed with the seal of KA. The remaining contraband was kept in the same polythene pouch in which it was recovered, the same was marked as Mark-A and sealed with the seal of KA. All the said pullandas were also sealed by the SHO with the seal of MK at the spot. Two sample pullandas were sent to FSL.
As per FSL report Ex. PW-6/A the sample sealed parcels (i.e. S1 and S2 duly sealed with the seals of 'KA' and 'MK') containing reddish brown coloured powdery material, weight approx. 2 gms & 2.1 gms, respectively were received in the FSL and after examination in the FSL, the said samples were found to contain diacetylmorphine. After examination, the remnants of the exhibits were sealed with the seal of S.C. F.S.L. DELHI. These remnants were produced in the Court in the testimony of PW-1 having the seal of FSL SC DELHI. Thus, the said samples were duly proved on record and exhibited as Ex. P-1 and Ex. P-2.
60. However, the remaining contraband seized at the spot and kept in pullanda Mark-A was not duly proved on record due to following reasons :-
DLSH010009662020 Page 48 of 52 SC No. 30/2020STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act
(a) As per seizure memo Ex. PW-1/B, after drawing samples S1 and S2, remaining contraband alongwith empty pudiyas as well as Rs. 500/-
recovered from the accused, were kept in the same polythene from which they were recovered and turned into pullanda of white cloth and marked as Mark-A. Thus, the pullanda Mark-A was containing remaining contraband, 116 empty paper pudiyas and Rs. 500/-. In the register no.19 which is on record, all the contents of Mark-A have been duly mentioned.
It is also deposed by PW-5 HC Aas Mohd. and PW-10 ASI Kuldeep Singh who were members of the raiding party that ASI Kadir Ahmad kept the plastic pouch containing remaining contraband, 116 paper pouches and recovered currency notes in the same polythene recovered from the pocket of capri of accused, and prepared cloth pullanda of the same which was sealed with the seal of KA and marked as A. However, when pullanda Mark-A was produced in the Court, the same was having only the remaining contraband and 116 paper pudiyas (pouches), but the same was not having currency notes which were also kept and sealed in pullanda Mark-A. Thus, all the articles kept in pullanda Mark-A were not found in the same condition as they were sealed. This fact shows that the pullanda containing contraband was tempered with.
(b) As per prosecution case, pullanda Mark-A was sealed by PW-1 ASI Kadeer Ahmad with the seal of KA and counter-sealed by PW-9 Inspector Mukesh Kumar (SHO) with the seal of MK. However, when this pullanda was produced in the Court, it was having only a single seal i.e. MK. Thus, the case DLSH010009662020 Page 49 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act property was not kept intact during investigation prior to its production before the Court.
Thus, the prosecution failed to produce the recovered substance in its intact form as it was recovered and sealed at the spot, hence, the prosecution has failed to prove the foundational facts against the accused beyond reasonable doubt.
Discussion on the point of recovery of contraband
61. In the present matter, all the police officials of raiding party have stated that as per secret information they reached outside H.No. 28/129, Kasturba Nagar, Delhi where they found accused was standing. After apprehension of accused, contraband was recovered from him in his personal search. However, the recovery of the contraband from the accused is shrouded with doubts due to following reasons :-
(a) Accused was apprehended at around 10:00 pm from outside of H.No. 28/129, Kasturba Nagar, Delhi which was a residential area. However, police did not join and did not even sincerely try to join any resident of the locality. It is specifically stated by PW-1 ASI Kadeer Ahmad that he had only asked 4-5 passerby to became witness, however it is admitted by him that he has not contacted any resident to become witness of the police proceedings.
Though, it is a fact that generally public persons do not became part of police proceedings or investigation, more so in a case of Narcotic Drugs. Further, the DLSH010009662020 Page 50 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act neighbours of the accused would have obviously refused to become a witness in the recovery fearing the enmity or backlash from the accused. However, police officials did not even requested any neighbour to join investigation or bother to record their refusal qua same. This inaction on the part of the police raises doubt qua time and place of recovery as stated by the police.
Non-joining of public witness during the proceedings, raises serious doubt as regards the recovery made from the accused. In this regard, reliance can be placed upon judgment titled as Bantu Vs. State Govt. of NCT of Delhi (Bail Appl. No.2287/22 dtd.08.07.2024 of Hon'ble Delhi High Court).
Thus, in the present matter, it can be safely held that sincere and sufficient efforts were not made by the police party to join the independent witness in the investigation. Further, the testimonies of the police officials suffer from material contradiction as stated above, which raises serious doubt qua their version of recovery.
(b) No photography or videography of the search, arrest or recovery proceedings was made, despite the fact that in the year 2020 almost all the persons were having mobile phones having cameras with them.
62. Upon reviewing the evidence, particularly the failure of the Investigating Agency of subjecting the recovered contraband (smack/ heroin) to sampling proceedings under section 52A NDPS Act and failure of prosecution to produce the recovered substance in its intact form as it was recovered and sealed at the spot, the prosecution has failed to prove the foundational facts DLSH010009662020 Page 51 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act against the accused beyond reasonable doubt. The presumption under sections 35 and 54 of the NDPS Act cannot be raised in this case against the accused, as the recovery of contraband could not be established beyond reasonable doubt, as MHC(M) has produced the case property bearing seal of SHO only who conducted proceedings U/s 55 NDPS Act, however the seal of 1st IO ASI Kadeer Ahmad who had seized the case property was not there on the case property when it was produced before the Court.
Conclusion
63. In the present matter, the prosecution has failed to prove beyond reasonable doubt the factum of recovery from possession of accused as discussed above. Further, compliance of Section 50 NDPS Act is doubtful, there is non-compliance of Section 52A NDPS Act coupled with the fact that recovered contraband was produced in the court without seal of 1 st IO. These facts raise a doubt in the mind of the Court as regards the recovery made from the possession of accused. In the opinion of the Court, it cannot be said beyond doubt that there is no material contradiction in the story of the prosecution and it also cannot be said beyond reasonable doubt that the case property after seizure was duly sealed and preserved till the time it was produced before in the Court. Therefore, in the opinion of the Court, the benefit of doubt would go in favour of the accused.
64. Accordingly, accused Mukesh @ Mungari is acquitted of the offence punishable under Section 21(b) of the NDPS Act. Accused is directed to DLSH010009662020 Page 52 of 52 SC No. 30/2020 STATE Vs. MUKESH @ MUNGARI FIR No. 166/2018 (Vivek Vihar) U/s 21(b) NDPS Act comply with Section 481 BNSS (earlier Section 437-A Cr.P.C.), as per rules.
65. File be consigned to Record Room after due compliance.
Digitally
Announced in the open Court GAJENDER signed by
on 09th February, 2026 SINGH
NAGAR
GAJENDER
SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi