Delhi District Court
State vs Salman @ Mustafa on 28 October, 2025
DLSH010037942018 Page 1 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Salman @ Mustafa S/o Mohd. Atik, R/o E-44A-74, Nai Seemapuri, Delhi. ...accused (Sh. Rajiv Pratap Singh, Legal Aid Counsel for accused) Date of institution : 31.05.2018 Date when Judgment reserved : 27.09.2025 Date of Judgment : 28.10.2025 Final Decision : Acquitted JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 04.04.2018 at about 12:15 am at 70 Foota Road, near Police Booth, New Seemapuri, Delhi, accused was apprehended by SI Somvir Singh, Ct. Prince and Ct. Mohit who were on patrolling duty on the said day, when he was trying to DLSH010037942018 Page 2 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act flee away on seeing them. Upon search, accused was found in possession of ganja weighing about 7.70 Kgs in a thaila. Thereafter, a notice U/s 50 NDPS Act was served upon the accused and he refused to get himself searched in the presence of a Gazetted Officer or Magistrate and also refused to take search of the police party before his search. The sampling of the contraband was done by SI Somvir Singh at the spot. The contraband i.e. ganja was seized, sealed and pullandas were made, accordingly by him. After filling the FSL form, the case property was deposited in the maalkhana. The present FIR was got registered U/s 20/61/85 NDPS Act and exhibits were sent to the FSL, Rohini. The FSL report dated 25.06.2018 confirmed the presence of ganja in the exhibits of this case sent by the IO.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, charge-sheet was filed against accused Salman @ Mustafa U/s 20/61/85 NDPS Act.
CHARGE
3. Vide order on charge dated 11.12.2023, charge U/s 20(b)(ii)(B) NDPS Act was framed against accused.
PROSECUTION EVIDENCE
4. In order to prove the aforesaid charge, the prosecution has examined 11 witnesses.
5. PW-1 SI Mohd. Hanif deposed that on 05.04.2018, he was posted DLSH010037942018 Page 3 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act at P.S. Seemapuri as ASI and was working as Duty Officer from 12:00 midnight to 8:00 am. At about 2:40 am Ct. Mohit brought the rukka sent by SI Somvir Singh, contents of which were dictated by this witness to the Computer Operator and the FIR was registered vide FIR No. 212/2018 and computerized copy of FIR was obtained. This witness had handed over the copy of FIR and the original rukka to Ct. Mohit to hand over the same to SI Monu Chauhan as investigation was marked to him. The copy of FIR is Ex. PW-1/1 (OSR). This witness had made endorsement on the rukka and the same is Ex. PW-1/2. In this regard, the certificate U/s 65B of the Evidence Act is Ex. PW-1/3. Copy of GD entry no.4A regarding registration of FIR is Ex. PW-1/4.
During his cross-examination on behalf of accused, it is denied by him that the FIR is ante-dated and ante-timed.
6. PW-2 ASI Daya Ram has brought original report U/s 57 NDPS Act prepared by SI Monu Chauhan of FIR No. 212/2018, P.S. Seemapuri.
It is stated by him that on 06.04.2018 he was posted as Reader to ACP, Seemapuri. As per record, the report was received in their office and he made entry in diary vide diary no.149 and placed the same before ACP, Seemapuri which was seen by him. Original report U/s 57 NDPS Act is taken on record and the same is Ex. PW-2/A bearing signatures of ACP Ram Singh at Point-A. Vide order dated 07.02.2022 on behalf of DCP, Shahdara District, the old records for the period from 01.01.2018 to 31.12.2018 were destroyed and therefore the original Dak Diary pertaining to the present case had also been destroyed. The copy of entry in the diary already on record is Mark-2A.
During his cross-examination on behalf of accused, it is denied by DLSH010037942018 Page 4 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act him that no report U/s 57 NDPS Act was received in the office of ACP, Seemapuri.
7. PW-3 ACP Sanjeev Kumar deposed that on 05.04.2018, he was posted at P.S. Seemapuri as SHO. At about 2:45 am, Ct. Mohit came to office of this witness and handed over to him three sealed parcels sealed with the seal of 'SK' and having Marks A, A1 and A2 alongwith FSL Form having seal of 'SK' and carbon copy of seizure memo. This witness affixed his seal of 'SK' on the said three sealed parcels and affixed his sample seal 'SK' on FSL Form. After confirming the FIR Number from the Duty Officer, this witness wrote the same on all the parcels, FSL Form and copy of seizure memo. He also signed all the three parcels, FSL Form and copy of seizure memo. He then called the MHC(M) CP alongwith register no.19 in his office and MHC(M) has made entry of all the details in the register no.19 and this witness handed over case property and all documents to MHC(M) CP. This witness also signed at Point-A against the relevant entry no.215/1940 in register no.19 which is Ex. PW-3/A (OSR). In this regard, he lodged a GD vide no.5A at about 2:55 am dated 05.04.2018 and copy of the same is Ex. PW-3/B. He had also forwarded one report dated 06.04.2018 U/s 57 NDPS Act prepared by SI Monu Chauhan regarding recovery of contraband and arrest of accused to ACP, Seemapuri. The said report is already Ex. PW-2/A on the judicial record bearing his signature at Point-B. During his cross-examination on behalf of accused, it is denied by him that no parcels were placed before him by Ct. Mohit. It is denied by him that the DD entry and entry in register no.19 are ante-dated and ante-timed.
DLSH010037942018 Page 5 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act
8. PW-4 HC Gaurav deposed that on 27.04.2018, he was posted at P.S. Seemapuri as Constable. On that day, on the directions of SI Monu Chauhan, this witness obtained one sealed parcel and FSL form from MHC(M) vide RC No.57/21/18. This witness deposited the parcel at FSL, Rohini, Delhi; came back to Police Station and deposited the receipt of FSL with MHC(M). The copy of RC is Ex. PW-4/A (OSR). Receipt of FSL is Ex. PW-4/B (OSR).
Till the time the case property was in possession of this witness, it has not been tampered with.
9. PW-5 Ct. (now HC) Prince deposed that on 04.04.2018 he was posted at P.S. Seemapuri as Constable. On that day, he alongwith Ct. Mohit and SI Sombir left the Police Station at about 11:00 pm for patrolling for prevention of crime in the area. At about 11:45 pm they reached at Police Booth, 70 Foota Road, New Seemapuri. At about 12:15 am, they saw one person coming from the side of DLF mor who was carrying blue colour bag in his right hand. On seeing them, he (that person) is started moving back with fast paces. SI Sombir called him to stop, but he accelerated his speed. On the directions of SI Sombir, this witness alongwith Ct. Mohit chased that person and apprehended him. That person disclosed his name as Salman @ Mustafa (witness has correctly identified the accused in the Court). On the bag carried by accused Rajshree Pan Masala was found written in Hindi and English. Upon opening the bag, it was found containing pattidar, badbudar, seelanyukat, hara ghassnuma padarth which appeared to be ganja from its physical appearance and smell. On the directions of SI Sombir, this witness brought electronic weighing machine from DLSH010037942018 Page 6 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act Police Station. SI Sombir 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.
It is stated by him that SI Sombir apprised the accused about his legal rights by saying that he can get himself searched as well as take search of the police officials in the presence of any Gazetted Officer or the Magistrate or that he can be taken to a Gazetted Officer or Magistrate for this purpose 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. IO prepared notice U/s 50 of the NDPS Act in duplicate and handed over the original notice to accused. The accused told that he is illiterate and can only sign. Thereafter, the said denial of accused was noted down by IO SI Sombir in his handwriting on the carbon copy of notice U/s 50 NDPS Act on which accused has signed. The carbon copy of notice U/s 50 NDPS Act is Ex. PW-5/A bearing signature of accused as receipt of original notice at Point-A, carbon impression of signature of this witness at Point-B, refusal of accused from Points X to X1, signature of accused below refusal at Point-A1, signature of this witness below the refusal at Point-B1.
It is stated by him that SI Sombir weighed the bag containing ganja which was found to be 7.70 Kgs and marked the bag as A. SI Sombir took out two samples of 250 grams each from the bag and kept the same in two transparent plastic boxes, which were marked as Marks A1 and A2. The bag containing remaining ganja was kept in a white cloth parcel which was sealed with the seal of 'SK'. The transparent boxes containing the samples were also DLSH010037942018 Page 7 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act sealed with the seal of 'SK' by SI Sombir. SI Sombir filled the FSL form.
It is stated by him that SI Sombir prepared seizure memo which is Ex. PW-5/B. Seal was handed over to this witness after use. Thereafter, SI Sombir prepared the rukka and handed over the original rukka to Ct. Mohit. SI Sombir also handed over the carbon copy of seizure memo, FSL form and the case property to Ct. Mohit with the direction to hand over the rukka to the DO and the remaining things to SHO for proceedings U/s 55 NDPS Act. Thereafter, Ct. Mohit left the spot.
It is stated by him that after some time SI Monu Chauhan alongwith Ct. Mohit came back at the spot where SI Sombir handed over the documents prepared by him to SI Monu Chauhan. SI Monu Chauhan wrote the FIR number on the documents. He prepared site plan at the instance of SI Sombir.
It is stated by him that accused was arrested vide arrest memo which is Ex. PW-5/C and personally searched vide personal search memo which is Ex. PW-5/D. In the personal search of accused original notice U/s 50 NDPS Act and one mobile phone were recovered. SI Monu Chauhan recorded the disclosure statement of accused which is Ex. PW-5/E. After the medical examination of accused he was brought back to the Police Station.
MHC(M) has produced one original notice U/s 50 NDPS Act in the name of Salman @ Mustafa. Same was taken on record. The original notice U/s 50 NDPS Act is Ex. PW-5/F. MHC(M) has produced one white cloth pullanda having Mark-A on which U/s 20/61/65 NDPS Act PS Seemapuri was written. There were signatures of SI Sombir Singh with date 05.04.2018 on the parcel. On the other DLSH010037942018 Page 8 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act side of parcel FIR No.212/18, signatures below which SHO/ S Puri was written. The parcel was sealed with different seals of 'SK'. The seals were intact. The said pullanda was stitched with the white thread. On opening the same with the permission of the Court, it was found containing one blue colour bag on which rajshree pan masala was written in Hindi and English. The bag was having red colour chain and on opening the same, it was found containing two polythene bags which contains the recovered contraband in the form of leaves and branches i.e. ganja. The same was shown to the witness. Witness correctly identified the same and stated that it was the same contraband which was recovered from the possession of accused and was sealed in a pullanda after drawing samples from it. The case property i.e. ganja alongwith bag is Ex. P-1.
MHC(M) has produced one big yellow envelope having Mark-A1 and details of the present case having the seal of SC FSL DELHI and FSL no.2018/C-3703 were written. The seal was duly intact. Mark-A1 parcel was opened and one transparent jar having yellow colour lid with Mark-A1 and same was tied with the doctor tape and details of the present case. The jar was already opened as the same has been sent to FSL. The jar was found containing greenish leaf and branches substance like ganja, the same was shown to the witness who correctly identified the same and stated that the jar contained the sample drawn by SI Sombir from the contraband recovered from accused. The sample is Ex. P-2.
MHC(M) has also produced one sealed transparent box having Mark-A2 and details of the present case with signatures of SHO, Seemapuri and signatures of SI Sombir were written on the transparent doctor's tape. The plastic box was sealed with two different seals of 'SK'. The seals are duly DLSH010037942018 Page 9 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act intact. Mark-A2 parcel was opened and was found containing greenish leaf and branches substance like ganja. On seeing the same, witness correctly identified the same and stated that the jar contained the sample drawn by SI Sombir from the contraband recovered from accused. The sample is Ex. P-3.
During his cross-examination on behalf of accused, it is admitted by him that the seizure proceedings were neither photographed, nor videographed. He denied the suggestion that accused was lifted from his house and was falsely implicated in the present case. It is denied by him that signatures of accused were taken on blank papers and blank typed papers which were later on converted into false and fabricated disclosure statement and other document.
10. PW-6 ASI Rajender deposed that on 05.04.2018, he was working as MHC(M) at P.S. Seemapuri. On that day at about 3:00 am, SHO/ Inspector Sanjeev 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 which the SHO has already put the FIR Number and his signatures. The pullandas were already sealed with the seal of 'SK' and 'SK'. This witness made entry in register no.19 at serial no.1940. Inspector Sanjeev Kumar also countersigned the entry in register no.19.
On the same day, SI Monu Chauhan deposited personal search articles of the accused in the maalkhana. This witness made entry vide serial no.1940 in this regard in register no.19. The copy of entry no.1940 is already Ex. PW-3/A. On 27.04.2018, on the directions of SHO, this witness handed over DLSH010037942018 Page 10 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act one sealed parcel Mark-A1 to Ct. Gaurav to be deposited at FSL vide RC no.57/21/18. After depositing the same, Ct. Gaurav came back and handed over acknowledgment of FSL to this witness. Copy of RC no.57/21/18 is already Ex. PW-4/A and copy of acknowledgment of FSL is already Ex. PW-4/B. Till the time the case property was in possession of this witness, it has not been tampered with.
During his cross-examination on behalf of accused, it is stated by him that the key of maalkhana used to remain in his possession. It is stated by him that he never hands over the same to anybody. It is stated by him that no permission is required by SHO or ACP to visit the maalkhana.
11. PW-7 HC Mohit Kumar deposed that on 04.04.2018, he was posted at P.S. Seemapuri as Constable. This witness deposed on the same lines as PW- 5 Ct. (now HC) Prince.
It is further stated by him that SI Sombir asked 4-5 public persons to join the investigation, but none agreed to join the investigation and left without disclosing their personal excuses and without disclosing their names and addresses. No notice could be served upon them due to paucity of time.
It is further stated by him that SI Sombir prepared the rukka and handed over the original rukka to this witness. SI Sombir also handed over the carbon copy of seizure memo, FSL form and the case property to this witness with the direction to hand over the rukka to the DO and the remaining things to SHO for proceedings U/s 55 NDPS Act. Thereafter, this witness left the spot.
Thereafter, he went to P.S. Seemapuri and handed over the rukka to the Duty Officer and remaining things to the SHO. After registration of FIR, DLSH010037942018 Page 11 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act DO handed over to this witness the copy of FIR and original rukka. Further investigation was marked to SI Monu Chauhan. This witness handed over the copy of FIR and original rukka to SI Monu Chauhan.
It is stated by him that after some time this witness alongwith SI Monu Chauhan came back at the spot where SI Sombir handed over the documents prepared by him to SI Monu Chauhan. SI Monu Chauhan wrote the FIR number on the documents. SI Monu Chauhan prepared site plan at the instance of SI Sombir.
At the spot, the accused was arrested vide arrest memo which is already Ex. PW-5/C and personally searched vide personal search memo which is already Ex. PW-5/D. It is stated by him that from the personal search of accused, one original notice U/s 50 NDPS Act and one mobile phone were recovered. SI Monu Chauhan recorded the disclosure statement of accused which is already Ex. PW-5/E. Accused was taken for medical examination and was thereafter brought to the Police Station. The original notice U/s 50 NDPS Act is already Ex. PW-5/F. It was observed that the case properties have already been exhibited during the testimony of earlier witnesses. The Ld. Defense Counsel did not oppose the same. Hence, the production of the case property was dispensed with.
This witness was duly cross-examined on behalf of accused.
12. PW-8 ASI Rohit Kumar deposed that on 04.04.2018 he was posted at P.S. Seemapuri as HC and working as DD writer from 4:00 pm to 12:00 DLSH010037942018 Page 12 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act midnight. On that day at about 9:00 pm, a DD entry no.95B was recorded regarding patrolling duty in the area by SI Sombir, Ct. Prince and Ct. Mohit. DD No.95B is Ex. PW-8/A (OSR).
During his cross-examination on behalf of accused, it is denied by him that DD No. 95B is ante-dated and ante-timed.
13. PW-9 SI Sombir deposed that on 04.04.2018 he was posted at P.S. Seemapuri as SI. This witness deposed on the same lines as PW-5 Ct. (now HC) Prince and PW-7 HC Mohit Kumar.
It is further stated by him that on opening the bag carried by accused, it was found containing vegetative material which appeared to be ganja from its physical appearance and smell. It is stated by him that the contents of the notice U/s 50 NDPS Act were read over to the accused.
It is further stated by him that he prepared the rukka Ex. PW-8/A and handed over the original rukka to Ct. Mohit. He also handed over the carbon copy of seizure memo, FSL form and the seal parcels to Ct. Mohit with the direction to hand over the rukka to the DO and the remaining things to SHO for proceedings U/s 55 NDPS Act. Thereafter Ct. Mohit left the spot.
It is stated by him that after some time SI Monu Chauhan alongwith Ct. Mohit came back at the spot where he handed over the documents prepared by him to SI Monu Chauhan. SI Monu Chauhan wrote the FIR number on all the documents. He prepared site plan at the instance of this witness. This witness was discharged by SI Monu Chauhan and thereafter this witness left the spot.
Original notice U/s 50 NDPS Act in the name of Salman @ DLSH010037942018 Page 13 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act Mustafa is already Ex. PW-5/F. During his cross-examination on behalf of accused, it is admitted by him that the seizure proceedings were neither photographed, nor videographed. It is denied by him that nothing was recovered from the possession of accused or that the contraband was planted upon him. It is denied by him that accused was lifted from his house and was falsely implicated in the present case. It is denied by him that signatures of accused were taken on black papers and blank typed papers which were later on converted into false and fabricated disclosure statement and other document.
14. PW-10 SI Monu Chauhan deposed that on 05.04.2018, he was posted at P.S. Seemapuri as SI. On that day after registration of FIR, the investigation of the case was marked to him. Ct. Mohit handed over copy of FIR and original rukka to this witness at the Police Station. Thereafter, this witness alongwith Ct. Mohit reached the spot i.e. 70 Foota Road, New Seemapuri, Road heading from DLF Mor towards Nisaria Masjid, near Dost Police Booth, where SI Sombir and Ct. Prince met this witness alongwith accused Salman @ Mustafa. This witness correctly identified accused Salman @ Mustafa in the Court through VC.
It is stated by him that SI Sombir handed over the accused alongwith the documents pertaining to this case prepared by him to this witness. This witness mentioned FIR number on the documents. He interrogated the accused. He prepared the site plan at the instance of SI Sombir which is Ex. PW-10/A. He arrested the accused vide arrest memo which is already Ex. PW- 5/C. He also conducted personal search of the accused vide personal search DLSH010037942018 Page 14 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act memo already Ex. PW-5/D. Apart from one mobile phone, one original notice U/s 50 NDPS Act was recovered from personal search of accused. This witness recorded disclosure statement of accused which is already Ex. PW-5/E. Accused was brought back to the Police Station after his medical examination and this witness deposited personal search articles of the accused with MHC(M).
On the same day, this witness prepared report U/s 57 NDPS Act and submitted the same for onward transmission to the senior officers. The report is already Ex. PW-2/A. On the same day, accused was produced in the Court and this witness obtained one day PC remand of accused. During PC remand of accused, this witness tried to search for the source namely Yamin of contraband, but in vain.
During investigation, this witness sent the exhibits to FSL. After completion of investigation, this witness submitted the charge-sheet for trial. After obtaining the FSL report, he had filed supplementary charge-sheet.
During his cross-examination on behalf of accused, it is stated by him that he alongwith Ct. Mohit left the Police Station at about 3:15 am and reached the spot in his car.
15. PW-11 Dr. Subhash Chandra, Senior Scientific Officer, Chemistry, FSL, Rohini, Delhi deposed that he is working at FSL, Rohini since 2016. On 27.04.2018, he was posted as Senior Scientific Officer (Chemistry) at FSL, Rohini. On that day, one sealed parcel Mark-A1 sealed with one seal of S.K and one seal of S.K in FIR No.212/18 dated 05.04.2018 U/s 20 NDPS Act, P.S. Seemapuri alongwith specimen seals, forwarding letter, copy of FIR, copy of DLSH010037942018 Page 15 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act seizure memo etc. were received in their office from SHO, P.S. Seemapuri vide letter reference no.796/SHO/Seemapuri, Delhi dated 27.04.2018. Same was marked to this witness for chemical examination. The seals were intact and were tallying with specimen seals.
On opening the parcel Mark-A1, it was found containing dried greenish brown coloured fruiting and flowering vegetative material, weight approx 385.00 gms with plastic container and it was mark as Ex. A1.
This witness analyzed the exhibits between 18.06.2018 to 25.06.2018. On physical microscopic, chemical and TLC examination, Ex. A1 was found to be ganja (cannabis). After the examination the remnants of the exhibit was kept in separate parcel which was sealed with the seal of S.C. F.S.L. DELHI. He prepared the detailed report bearing no. FSL.2018/C-3703 dated 25.06.2018 which is Ex. PW-11/A (running into two pages) bearing his signature at Points A and B. He submitted his report in a sealed envelope alongwith the sealed parcels for onward transmissions to the forwarding agency.
16. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 19.07.2025.
STATEMENT OF ACCUSED
17. 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 being the police officials witnesses 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 was not apprehended as claimed by the DLSH010037942018 Page 16 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act police, rather he was lifted from his house on 04.04.2018 and falsely implicated in the present case due to previous enmity with police officials of P.S. Seemapuri who had earlier also implicated him in false case. It is stated by him that he was made to sign on certain blank papers by the police officials.
Accused chose not to lead any defense evidence.
FINAL ARGUMENTS
18. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record carefully.
19. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act has been complied with in the present matter at the time of recovery and thereafter. It is contended that 7.70 Kgs ganja was recovered from the accused. There is nothing on record to suggest that police officials had any enmity with the accused. Thus, the offence U/s 20(b)(ii)(B) of the NDPS Act is proved beyond reasonable doubt against the accused.
20. Per contra, it is contended on behalf of the accused that accused was lifted from his house on 04.04.2018 and falsely implicated in the present case due to previous enmity with police officials of P.S. Seemapuri who had earlier also implicated him in false case. It is contended that the contraband was planted on the accused that is why no public person was joined in the investigation. Even the reply on the notice U/s 50 NDPS Act was in the writing of IO and signature of accused was added later on. It is contended that there is no CCTV camera installed nearby the place of apprehension of accused to show DLSH010037942018 Page 17 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act that the proceedings conducted by the police are genuine. It is contended that there is no photography or videography of the seizure proceedings on the spot which raised doubt qua alleged story of prosecution. It is contended that police should have taken the accused to a Gazetted Officer or Magistrate even after his refusal which has not been done by the police in the present case. It is contended that proceedings U/s 52A NDPS Act were not conducted before Ld. Judicial Magistrate.
Legal Requirement to prove the Charges :-
21. Accused has been charged for offence U/s 20(b)(ii)(B) of NDPS Act as 7.70 Kgs ganja was recovered from his possession. 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 license 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;
(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:
DLSH010037942018 Page 18 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
22. 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)
23. As per the Section, possession of all narcotic drugs is prohibited by Section 8.
DLSH010037942018 Page 19 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act
24. 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;
25. As per the definition, 'narcotic drug' includes cannabis (hemp). Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
26. 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)
27. "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.
28. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity.
DLSH010037942018 Page 20 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act 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."
29. 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.
30. In order to prove the charge U/s 20 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 intermediary (i.e. more than 1000 gms and less than 20 Kgs), for Section 20(b)(ii)(B).
31. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in DLSH010037942018 Page 21 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act 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.
32. 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 DLSH010037942018 Page 22 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act
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 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 DLSH010037942018 Page 23 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act 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."
33. 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.
DLSH010037942018 Page 24 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act ANALYSIS OF EVIDENCE
34. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows :-
Discussion on the point of compliance of Section 42 NDPS Act
35. Section 42 NDPS Act is as under :-
42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para- military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
DLSH010037942018 Page 25 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS 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 concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
36. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to record the secret information in writing and send the information so reduced into writing within 72 hours of its receipt to immediate official superior.
37. The present case is a case of chance recovery as no secret information was received before the apprehension of the accused. Accordingly, the recording of secret information in terms of Section 42(1) NDPS Act and forwarding the same to immediate official superior within 72 hours was not required in the present case. Thus, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case.
38.(a) Being a case of chance recovery, the most important document in the present case was the DD entry whereby the police party consisting of PW-5, PW-7 and PW-9 were on patrolling. As per testimonies of PW-5, PW-7 and PW-9 they had left the Police Station for patrolling in the area for prevention of DLSH010037942018 Page 26 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act crime at about 11:00 pm. Similarly, mentioned in the rukka Ex. PW-9/A that "jurm ke roktham ke liye samay 11:00 pm par rawana illaka gast ka huya tha ". Similarly mentioned in statements U/s 161 Cr.P.C. of that witnesses.
(b) However, the DD entry proved on record to show that PW-5, PW-7 and PW-9 were on patrolling is DD No. 95B dated 04.04.2018 which is exhibited on record as PW-8/A. As per this DD entry the police party consisting PW-5, PW-7 and PW-9 left the Police Station at 9:00 pm i.e. almost two hours prior to the time claimed by them of leaving the Police Station. This discrepancy could not be explained in the testimony of any witness. This discrepancy goes to the root of the matter as presence of the raiding party at the spot at the time of chance recovery has become doubtful.
(c) The doubt on the story of the prosecution also arises from the fact that the rukka which was the first document whereby the information of the offence was given, is not containing the DD entry number whereby the police party had left the Police Station. Further, whitener/ correction fluid has been put and date has been changed in the first line of the rukka itself.
(d) The doubt in the story of the prosecution also arises from the fact that a document Ex. PW-1/4 having title 'Police Station General Diary' has been exhibited on record which is a computer generated report of 'Police Station General Diary' from CCTNS. The same is starting from 00:01 midnight of 05.04.2018. This computer generated page is having DD Nos. 001 to 007 of 05.04.2018 wherein DD No.004 is qua receipt of rukka of the present matter at DLSH010037942018 Page 27 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act 2:40 am. The existence of this exhibit shows that on the relevant day P.S. Shahdara was using CCTNS to register their General Diary Entries that is why entries no. 004, 005 and 006 relevant for the present case, were recorded in the computer and uploaded on the server of CCTNS.
However, the foundational DD of the present case i.e. DD No. 95B dated 04.04.2018 is handwritten and its CCTNS generated copy confirming time of recording of the same, has not been filed before the Court.
(e) Thus, it can be safely concluded that the very foundation of the present case that the raiding party was present at the spot at the time of alleged recovery is doubtful.
Discussion on the point of compliance of Section 50 of NDPS Act
39. 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 DLSH010037942018 Page 28 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act 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)
40. The legal position in respect to Section 50 NDPS Act has been laid down by Hon'ble Supreme Court in the case titled as State Vs. Baldev Singh, AIR 1999 SC 2378 that the compliance of the provisions of Section 50 NDPS Act is mandatory. It is also held in this case that the compliance of this provision is not necessary where recovery was effected without prior information and where it was the case of chance recovery. The relevant para of this judgment reads as under:-
"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of Section 50 of the Act are not attracted."
(emphasis supplied)
41. In the case titled as State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299, Hon'ble Apex Court had observed as under:-
"25. The questions considered above arise frequently before the trial courts. Therefore, we find it necessary to set out our conclusions which are as follows:-
1) If a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs And Psychotropic Substances Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr P.C. and when such search is completed at that stage Section 50 of the Narcotic Drugs and Psychotropic Substances Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or Psychotropic DLSH010037942018 Page 29 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs And Psychotropic Substances Act. If he happens to be an empowered officer also, then from that stage onwards. he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs And Psychotropic Substances Act."
(emphasis supplied)
42. In State of H.P. Vs. Sunil Kumar (05.03.2014 - SC) : MANU/ SC/0193/2014, a case of chance recovery, Hon'ble Apex Court considered the question regarding application of Section 50 NDPS Act. Relevant para of the said judgment dealing with chance recovery and notice U/s 50 NDPS Act are reproduced as under :-
"Chance recovery :-
11. The State is in appeal against the acquittal of Sunil Kumar and the broad submission is that the recovery of charas from him was a chance recovery. Under these circumstances, in view of the Constitution Bench decision in Baldev Singh which endorsed the view taken in State of Punjab v. Balbir Singh (1994) 3 SCC 299 the personal search of Sunil Kumar resulting in the recovery of contraband did not violate Section 50 of the Act. Reliance was placed by learned Counsel on paragraph 25 in Balbir Singh which was also endorsed by the Constitution Bench.
It was submitted that it is only after a chance or accidental recovery of any narcotic drug or psychotropic substance by any police officer that the provisions of the Act would come into play. It is then that the empowered officer should be informed and that empowered officer should thereafter proceed to investigate the matter in accordance with the provisions of the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, DLSH010037942018 Page 30 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we need to firstly understand what a 'chance recovery' is. The next question would be whether the provisions of Section 50 of the Act would apply when there is a chance recovery.
14. The expression 'chance recovery' has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 this Court considered a chance recovery as one when a police officer "stumbles on"
narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC 608 the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a 'chance recovery'.
15. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a "positive suspicion" that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected notwithstanding the submission that drugs are easily available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs and indeed that is also not the case set up in this appeal. It was plainly a chance or accidental or unexpected recovery of charas-Sunil Kumar could well have been carrying any other contraband such as, smuggled gold, stolen property or an illegal firearm or even some other drug.
17. We are not going into the issue whether the personal or body search of Sunil Kumar (without a warrant) was at all permitted by law under these circumstances. That was not an issue raised or canvassed before the Trial Court or the High Court or even before us, although it has been adverted to in the written submissions by Learned Counsel assisting us on behalf of Sunil Kumar. Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is concerned, the issue is no longer res integra in view of the decision of the Constitution Bench in Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though the Chamba area may be one where such drugs are easily available. At best, it could DLSH010037942018 Page 31 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act be said the police officers suspected Sunil Kumar of carrying drugs and nothing more. Mere suspicion, even if it is 'positive suspicion' or grave suspicion cannot be equated with 'reason to believe'. Joti Parshad v. State of Haryana 1993 Supp (2) SCC 497 and Sheo Nath Singh v. Appellate Assistant CIT (1972) 3 SCC 234. These are two completely different concepts. It is this positive suspicion, and not any reason to believe, that led to the chance recovery of charas from the person of Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot be equated with prior information. Bharatbhai Bhagwanjibhai v. State of Gujarat (2002) 8 SCC 327 The procedure to be followed when there is prior information of the carrying of contraband drugs is laid down in the Act and it is nobody's case that that procedure was followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that Sunil Kumar was carrying some contraband, therefore, it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of Section 50 of the Act ought to have been complied with. The recovery of charas on the body or personal search of Sunil Kumar was clearly a chance recovery and, in view of Baldev Singh, it was not necessary for the police officers to comply with the provisions of Section 50 of the Act."
43. In view of the aforesaid judgment, in a case of chance recovery, like the present one, notice U/s 50 NDPS Act is not required to be given before the search of the accused is conducted.
44. As stated earlier, it is the case of the prosecution that the recovery was a chance recovery, wherein from the bag ( thaila) in the right hand of accused, pattidar, badbudar, seelanyukat, hara ghassnuma padarth (vegetative material) which appeared to be ganja from its physical appearance and smell was found and only thereafter, information was given at the Police Station. Therefore, as per the prosecution case, the contents of the bag ( thaila) were checked to conduct the investigation in the present case and as such, it was not possible to give notice U/s 50 NDPS Act, before the contents of the bag ( thaila) DLSH010037942018 Page 32 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act were checked by the police official. It is precisely for this reason, as pointed out by the Hon'ble Apex Court in the aforesaid judgments, that the requirement of Section 50 of NDPS Act is dispensed with in cases of chance recovery.
45. It may be noted that from the bodily search of the accused, no contraband was recovered. The contraband (ganja) was found in a bag (thaila) in the right hand of the accused. As regards recovery made from bag carried by 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.
46. In Saikou Jabbi Vs. 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.
47. Hon'ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 made following observations in this regard :-
"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 DLSH010037942018 Page 33 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act 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."
48. In view of the law laid down in State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 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 a polythene carried by the accused in his hand and not from the person of the accused.
49. Section 55 of the NDPS Act was duly complied with in the present matter as SHO, P.S. Seemapuri (PW-3) has also put his seal on three sealed parcels and also affixed his sample seal 'SK' on FSL Form, before depositing the same in the maalkhana.
50. Section 57 of the NDPS Act which requires that :-
"Whenever any person makes any arrest or seizure, under this Act, DLSH010037942018 Page 34 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS 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."
51. In the present matter, alleged recovery of contraband was effectuated by PW-9 SI Sombir and after recovery of the case property investigation of the present case was marked to PW-10 SI Monu Chauhan who arrested the accused. SI Monu Chauhan prepared and submitted the report U/s 57 NDPS Act for onward transmission to the senior officers. SHO, P.S. Seemapuri (PW-3) had deposed that he had also forwarded one report dated 06.04.2018 U/s 57 NDPS Act prepared by SI Monu Chauhan regarding recovery of contraband and arrest of accused to ACP, Seemapuri. The report by SI Monu Chauhan was sent vide diary no.625 dated 06.04.2017. Though there is one irregularity in this intimation as date in the diary no. 625 has written as 06.04.2017 in the copy of information filed with the charge-sheet, however, in the original information received during trial from ACP Office, the date is changed to 06.04.2018, which suggests that the date was changed by overwriting after filing of the charge-sheet.
However, the information U/s 57 NDPS Act is bearing signature of SI Monu Chauhan with the date 05.04.2018 as well as signatures of SHO with the date 06.04.2018 who had forwarded the same to ACP and signature of ACP, Seemapuri with the date 06.04.2018 as well as diary no. 1149 dated 06.04.2018. The original report is on record as Ex. PW-2/A. Be that as it may, the said report has been 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 DLSH010037942018 Page 35 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act NDPS Act were complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of compliance of Section 52A NDPS Act
52. 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 PW-9 SI Sombir at the spot.
53. 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 DLSH010037942018 Page 36 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said 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."DLSH010037942018 Page 37 of 41 SC No. 280/2018
STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act (emphasis supplied)
54. 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 that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
55. Moreover, as per FSL report Ex. PW-11/A, one parcel Exhibit-A-1 was received at FSL and was examined by Dr. Subhash Chandra, Senior Scientific Officer (Chemistry), FSL, Rohini. Parcel-A-1 was found bearing one seal of 'S.K' and one seal of 'S.K'. Thus, as per the FSL result Ex. PW-11/A, one sample of the case property (one pullanda) which was sealed at the spot with the seal of 'S.K' and was counter sealed by PW-3 SHO Sanjeev Kumar (now ACP) with his seal of 'S.K', was received in the same condition with all the seals intact in the FSL on 27.04.2018.
56. It may be noted that the case property in original as primary evidence was produced during the testimony of PW-5 and opened in the Court. The sample Mark-A1, was found to be bearing the seal of SC FSL DELHI and FSL No. 2018/C-3703, whereas Parcels Mark-A and Mark-A2 were found bearing the seals of 'S.K' and 'S.K'. The observation of the Court at the time of DLSH010037942018 Page 38 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act opening the case property during the testimony of PW-5 is relevant to establish that the seals of 'S.K' and 'S.K' remained intact throughout the proceedings till the time the sample was analyzed by the FSL and the remaining contraband in pullanda/ Parcel-A and pullanda/ Parcel-A2 were opened in the Court.
57. Therefore, in the opinion of the Court, the case property, which was sealed at the spot with the seal of 'S.K' by PW-9 SI Sombir and was further sealed at the Police Station by PW-3 SHO Sanjeev Kumar (now ACP) with the seal of 'S.K' was found intact by Dr. Subhash Chandra, Senior Scientific Officer (Chemistry), FSL, Rohini, Delhi on the one sample Mark-A-1, which he analyzed in terms of report Ex. PW-11/A and the remaining pullandas/ parcels were found intact bearing the seals of 'S.K' and 'S.K', when the same were produced before the Court and exhibited as Ex. P-1 & Ex. P-3 on 19.12.2024.
58. Accordingly, the prosecution proved beyond reasonable doubt that non-compliance of section 52A NDPS Act does not affect its case against the accused, as the case property seized at the spot was produced as primary evidence before the Court with the seals intact and while the said case property remained in police custody, it was not tampered with.
59. Accordingly, it is held that the integrity of the case property was maintained from the time the case property was seized at the spot till the time the sample was analyzed at FSL and the pullandas Mark-A and Mark-A2 were produced before the Court.
DLSH010037942018 Page 39 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act Discussion on the point of recovery of contraband
60. In the present matter, all the police officials of raiding party have stated that while they were on patrolling on seeing them, accused started moving back with fast paces and when SI Sombir called him to stop, but he accelerated his speed, on that they apprehended accused and recovered contraband from the bag (thaila) carried by him.
61. However, the recovery of the contraband as stated above is shrouded with doubts due to following reasons :-
(a) It has already been held that there is doubt qua time when police party left the Police Station for the purpose of patrolling, as discussed above in para no.38.
(b) There is no videography or photography of the search, arrest or recovery proceedings was clicked/ made. No CCTV footage qua presence of the accused at the time and place of arrest or his movement towards the spot of arrest has been filed on record.
(c) The place of recovery i.e. DLF mor, 70 Foota Road, New Seemapuri, Delhi was a public road. Admittedly, a number of public persons were present there at that time. Despite that police did not join and did not even sincerely try to join any public witness. Though, it is a fact that generally public persons do not became part of police proceedings or investigation, more so in a DLSH010037942018 Page 40 of 41 SC No. 280/2018 STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act case of Narcotic Drugs. 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 as well as the time when they left the Police Station.
Conclusion
62. In the present matter, the prosecution has failed to prove beyond reasonable doubt the time when police party left the Police Station for the purpose of patrolling, the DD entry whereby they left for patrolling and recovery of contraband from the bag ( thaila) in possession of accused as discussed above, which raise a doubt in the mind of the Court as regards the story of the prosecution. In the opinion of the Court, it cannot be said beyond doubt that there is no material contradiction in the story of the prosecution. Therefore, in the opinion of the Court, the benefit of doubt would go in favour of the accused.
DLSH010037942018 Page 41 of 41 SC No. 280/2018STATE Vs. SALMAN @ MUSTAFA FIR No. 212/2018 (Seemapuri) U/s 20(b)(ii)(B) NDPS Act
63. Accordingly, accused Salman @ Mustafa is acquitted of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. Accused is directed to comply Section 481 BNSS (earlier Section 437-A Cr.P.C.), as per rules.
64. File be consigned to Record Room after due compliance.
Digitally
GAJENDER signed by
Announced in the open Court SINGH GAJENDER
NAGAR SINGH
on 28th October, 2025 NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi