Delhi District Court
State vs Nahid Khan on 16 May, 2025
IN THE COURT OF ALOK SHUKLA, ADDITIONAL SESSION
JUDGE-02, SPECIAL JUDGE (NDPS), EAST DISTRICT,
KARKARDOOMA COURT, DELHI
CNR no. DLET01-014656-2016
Session Case No.2383/2016
State versus Nahid Khan
First Information Report No. 174/2016
Police Station Crime Branch East, Delhi
Under Section 21(b) NDPS Act
In the matter of: -
STATE
Versus
Nahid Khan
Son of Mr. Vahid Khan,
Resident of H. No. 284, Shivpuri, PS Sirauli,
Tehsil Aonla, District Bareilly, UP
Date of Institution : 15.12.2016
Date of reserve for judgment : 05.05.2025
Date of decision : 16.05.2025
JUDGMENT
1. Accused has been charged for the offences under Section 21(b) NDPS Act.
2. Brief facts of the case are that on 17.10.2016, secret information was received that one Nahid Khan S/o Wahid Khan, R/o H. No. 284, Shivpuri, PS Sirauli, Tehsil Aonla, Distt. Bareilly, Aged 25 Years, engaged in the supply of Heroin in Delhi would come to Geeta colony Pusta, Road leading towards Shastri Park at a distance of about 200 meter from bus stand Shamshan Ghat/Pusta, Delhi between 5 pm to 6 pm to supply Heroin to someone. After satisfaction, information was conveyed to senior officers and reduced into writing vide DD No. 16 dated 17.10.2016, Narcotics Cell, Crime Branch, Delhi and copy of the same was produced before Inspector Jai Bhagwan of Narcotics Cell, Crime Branch in compliance of Page no. 1 Section 42 NDPS Act. A raiding team led by IO, consisting of Ct Samrat Singh and HC Md. Ismail was constituted. Thereafter, the raiding party alongwith informer proceeded in Private vehicle Blue Maruti Wagon-R No DL-8-CP-3419 which was driven by IO. A trap was laid at Geeta colony Pusta, Road leading towards Shastri Park at a distance of about 200 meter from bus stand Shamshan Ghat/Pusta, Delhi and one person namely Nahid Khan was apprehended at about 05:30 PM. After following the procedure u/s 50 NDPS Act, cursory search of Nahid Khan was conducted. During search of Nahid Khan, a transparent polythene was recovered from the left side pocket of his jeans, which he was wearing at that time. The transparent polythene was containing muddy colour substance in it. The muddy colour substance, on checking with the help of field testing kit was found to be Heroin. The same was weighed on electronic weighing machine and weight of same was found to be 200 grams. Out of the recovered Heroin, two sample of 5 grams each were drawn and parcels were prepared which were marked as "A" & "B" respectively. Another cloth parcel was prepared of the remaining 190 gm Heroin and marked as "C". The pulandas were sealed with the seal of 5A PS NB DELHL FSL form in this regard was filled up and the impression of the seal was put on the FSL form also. Seal was handed over to Ct. Samrat. All the three cloth parcels and FSL form were taken into possession through seizure memo. Rukka was prepared. Rukka and all three cloth parcels, one FSL Form and carbon copy of the seizure memo were sent through HC Ismail for registration of the case and to handover the case property to SHO/PS Crime Branch for compliance of Section 55 NDPS Act. The case vide FIR No. 174/16, U/s 21 NDPS Act dated 17.10.2016 PS Crime Branch was registered. Further, investigation of the case was marked to SI Omvir Dabas, who Page no. 2 came at the spot and got briefed by the 1 st IO. SI Omvir Dabas prepared site plan at the spot and arrested the accused. SI Omvir Dabas also took personal search of accused. Statements of witnesses were recorded under Section 161 Cr.P.C. After completion of investigation, challan under Section 21 NDPS Act was prepared against accused and filed before the Court.
CHARGES AGAINST THE ACCUSED
3. Charge for the offence under Section 21(b) NDPS Act was framed against accused vide order dated 21.01.2017 to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
4. Twelve prosecution witnesses were examined during the course of trial.
5. PW1 Head Constable Raj Kumar, No.465 Crime, PS Crime Branch, Delhi deposed that on 17.10.2016, he was working as Duty Officer in PS Crime Branch from 8:00 pm to 8:00 am and at about 9:45 pm, HC Ismail brought a rukka send by Sl Rajnikant, contents of which were dictated by him to the computer operator and FIR Ex.PW1/A was registered under Section 21 of NDPS Act. He made endorsement on the rukka Ex.PW1/B and also issued certificate under Section 65B of the Indian Evidence Act Ex.PW1/C and after registration of the case, he handed over computerized copy of FIR along with original Tehrir to HC Ismail to be handed over to SI Omvir Dabas to whom further investigation was marked. He also lodged DD No.20 Quyami for registration of FIR Ex.PW1/D and DD No.22 Ex.PW1/E.
6. PW2 Inspector Jai Bhagwan, No.D1/1035, SHO PS Jyoti Nagar, Delhi deposed that on 17.10.2016, he was posted at Narcotic Cell Crime Branch, Kotwali, Delhi as Inspector and was present in his office at about 3:45 pm. He further deposed that SI Rajnikant along with secret informer came to his office Page no. 3 and told him that secret information had been received that Nahid Khan resident of Bareilly, who was indulged in procuring heroin from Bareilly and used to supply the same in Delhi would come on that day between 5 to 6 pm along with huge consignment of heroin at Pusta Road, Geeta Colony about 200 meters ahead of Samshan Ghaat Pusta and if raid was conducted, he could be apprehended. He also interrogated the secret informer and got himself satisfied from the information and thereafter, he went to the office of Sh. SK Tyagi, ACP Narcotic Cell and informed him about the said information, who directed him to conduct raid immediately and thereafter, SI Rajnikant lodged DD no.16 Ex.PW2/A with regard to receiving of secret information and the same was produced before him, which was forwarded to the ACP concerned. He further deposed that on his direction, SI Rajnikant prepared a raiding party comprising HC Ismail and Ct. Samrat and left the office along with secret informer in private car for the spot. He further deposed that SI Omvir Dabas was entrusted further investigation after registration of the case and he proceeded for the spot. He further deposed that on 18.10.2016, SI Omvir Dabas produced accused Nahid Khan in his office at about 6 am and he interrogated the accused and got himself satisfied from arrest of Nahid Khan and seizure of contraband. He identified accused in the court. He further deposed that on 18.10.2016, SI Rajnikant prepared a report under Section 57 NDPS Act Ex.PW2/B regarding seizure of 200 grams Heroin and it was produced before him and forwarded to ACP concerned. He further deposed that on the same day report u/s 57 NDPS Act Ex.PW2/C regarding arrest of accused Nahid Khan was produced before him by Sl Omvir Dabas and the same was also forwarded to ACP concerned. His statement was recorded by the IO in his office from 6:30 am to 7 am.
Page no. 4
7. PW3 Assistant Commissioner of Police Sh. Virender Singh, DI/231 Economic Offence Wing, Mandir Marg, New Delhi deposed that on 17.10.2016, he was posted as SHO PS Crime Branch, Malviya Nagar and on that day at about 9:30 pm, HC Ismail came to his room and he presented three sealed pullandas sealed with the seal of '5APS NB DELHI' marked A, B and C alongwith FSL form affixed with the same seal and carbon copy of seizure memo. He checked all the parcels and documents and affixed his seal of VSS on the said parcels and FSL form in compliance with under Section 55 NDPS Act. He further deposed that FIR number was known through duty officer as 174/16, which was also mentioned on the parcels and documents by him. He had also made his initials on the parcels and documents and thereafter, called HC Jagnarain (MHCM), who came to his office alongwith register no.19. He handed over all the parcels alongwith FSL form and carbon copy of seizure memo, who made entry in register no.19. He lodged DD no.21 at about 10:30 pm Ex.PW3/A (OSR). His statement was recorded by the IO in his office between 4:30 am to 4:45 am on 18.10.2016.
8. PW4 Constable Samrat, No.808/Crime, Narcotics Cell, Crime Branch, Daryaganj, Delhi deposed that on 17.10.2016, he was present in Narcotics Cell Crime Branch office Daryganj and at about 4:05 pm, SI Rajnikant called him and HC Ismail in his office and they reached there and found that one secret informer was present, who informed them that he had received a secret information that one person Nahid Khan r/o Bareilly, UP, who deals in supplying heroin in Delhi after procuring the same from Bareilly, UP and on that day also, he would come between 5-6 pm about 200 meters ahead of bus stand Shamshan Ghaat Pusta, Geeta Colony, Delhi to supply heroin to someone and if raided, he could be caught. He further Page no. 5 deposed that thereafter, a raiding party was prepared by SI Rajnikant including himself, HC Ismail and secret informer and IO took IO kit, field testing kit and electronic weighing machine and at about 4:20 pm, DD No.17 was lodged regarding departure and they all in car no. DL8CP 3419 WagonR, a private car started from office being driven by SI Rajnikant. They reached Shanti Van red light and from there straight and after crossing Yamuna Bridge they took a left turn and crossed Shamshan Ghaat and reached about 200 meters ahead of bus stand Shamshan Ghaat Pusta at about 4:50 pm and about 150 meters ahead of the said bus stand after parking the car by the side of road. He further deposed that SI Rajnikant briefed them there and thereafter, they reached the spot i.e. about 200 meters ahead of the said bus stand at about 5 pm and took their position there. He further deposed that on the way ahead of Shanti Van red light, 5 public persons were requested to join the raiding team after briefing them about the information and near Shamshant Ghaat, 4 public persons were again requested to join the raiding team after briefing them about the information. He further deposed that at about 5:20 pm, one person was seen coming from the side of Shamshan Ghaat and the secret informer from a distance of about 30 meters pointed towards the said person and told the IO that he is Nahid about whom information was given and thereafter, secret informer left the spot on foot. He further deposed that the said person stood near a street light there and kept on waiting for about 10 minutes and thereafter, started going towards Shamshan Ghaat and then the said person was overpowered by all of them at about 5:30 pm and interrogated by the IO, whose name was known as Nahid Khan s/o Wahid Khan r/o 284 Shivpuri, PS Siroli, Tehsil Amla, Dist. Bareilly, UP. He further deposed that SI Rajnikant introduced himself and the raiding team members to Page no. 6 the said person and also requested 4-5 public persons to join the investigation but none agreed and left the spot without giving their names and addresses. He was directed to bring the car at the spot and he brought the same there. He further deposed that SI Rajnikant told the accused that he had received information against him that he might be in possession of heroin procured from Bareilly and his search was to be taken and it was his legal right that he could be searched in the presence of Gazetted Officer or Magistrate or he could take search of any of the raiding team members and of the private car prior to his search, if he was so desired but he refused for the same and thereafter, SI Rajnikant prepared notice u/s 50 NDPS Act and original notice was given to the accused. He further deposed that on the carbon copy of the notice Ex.PW4/A, reply of accused was written by SI Rajnikant on the dictation of the accused as he had requested to write down his reply being illiterate. The accused put his LTI on the carbon copy of notice and reply to the said notice is Ex.PW4/A1 bearing his signature at point A and LTI of accused at point B1. He further deposed that thereafter, accused was personally searched by SI Rajnikant and from the left side pocket of his jeans, one transparent polythene, tied with rubber band, was recovered containing matiala colour powder and IO removed the rubber band and took some powder from the said transparent polythene, which was tested on field testing kit and was found to be heroin. He further deposed that the said transparent polythene containing the heroin was weighed on the electronic weighing machine and found to be 200 grams. He further deposed that two samples of 5 grams each were drawn from the recovered heroin and were kept in two separate transparent polythenes after tying with rubber bands and parcels were prepared with the help of cloths, marked as A and Page no. 7 B and remaining 190 grams Heroin were kept in the same transparent polythene and converted into cloth parcel and given Mark C. He further deposed that all the parcels were sealed with the seal of 5A PS NB DELHI and FSL form was also prepared by the IO and affixed with same seal. He further deposed that seal after use was handed over to him and thereafter, all the parcels and FSL form were taken into possession vide seizure memo Ex.PW4/C. He further deposed that thereafter, IO prepared a tehrir and handed over to HC Ismail along with all the sealed parcels, copy of seizure memo and FSL form, who was directed to hand over the rukka to DO and parcels and documents to the SHO for necessary action. He further deposed that HC Ismail left the spot at about 8:45 pm for registration of the case in the said private car and he drove the said car to the PS Crime Branch. He further deposed that at about 12:30 am (18.10.2016), SI Ombir Dabas came at the spot in the said private car and he was briefed by SI Rajnikant, who handed over all the documents prepared to SI Ombir Dabas along with the accused. He further deposed that SI Ombir Dabas prepared site plan at the instance of SI Rajnikant. His statement was recorded by the IO at the spot between 1 am to 2:30 am. He further deposed that accused was interrogated by 2nd IO and arrested at about 2:45 am vide his arrest memo Ex.PW4/D and his personal search was also conducted, in which notice u/s 50 NDPS Act along with voter I- card and cash of Rs. 950/- was also recovered, which were seized vide seizure memo Ex.PW4/D1. He further deposed that disclosure statement of accused was also recorded Ex.PW4/D2. He further deposed that after completion of proceedings at the spot, they along with accused left the spot at about 3:15 am and reached PS Crime Branch, Malviya Nagar, New Delhi at about 4:15 am and IO deposited the jamatalashi Page no. 8 articles in the malkhana through MHCM HC Jagnarain. He further deposed that statements of SHO and HC Jagnarain were recorded. They left PS Crime Branch at about 5 am along with accused in the said private car and reached office at Daryaganj at about 6 am and accused was produced by the IO before inspector Jai Bhagwan, whose statement was also recorded by the IO in his office. He further deposed that statement of SI Rajnikant was also recorded in the office. His supplementary statement was also recorded between 7:15 am to 8 am in office. He identified the case property i.e. one khaki colour envelope parcel Mark A sealed with the seal of MLM FSL DELHI and on opening on which, one unsealed cloth parcel having seals of 5A PS NB DLEHI & VSS containing one transparent polythene, which further contains sample as drawn from the recovered heroin Ex.P1 colly, one cloth parcel Mark B sealed with the seal of 5A PS NB DLEHI & VSS containing sample as drawn from the recovered heroin Ex.P2 colly, one cloth parcel Mark C sealed with the seal of 5A PS NB DLEHI & VSS, on opening the same, one transparent polythene containing smack as recovered from the possession of the accused Ex.P3 colly and original notice u/s 50 NDPS Act, recovered from the personal search of accused Ex.P4.
9. PW5 Assistant Sub Inspector Mohammad Ismail, No. 248/Crime, Narcotics Cell, Crime Branch, Daryaganj, Delhi deposed that on 17.10.2016, he was posted as HC in the Narcotics Cell Crime Branch office Daryganj and was present in the office. He further deposed that at about 4:15 pm, SI Rajnikant called him and Ct. Samrat in his office and informed that a secret information had been received about one person Nahid Khan r/o Bareilly, UP, who deals in supplying heroin in Delhi after procuring the same from Bareilly, UP and on that day also, he would come between 5-6 pm about 200 meters ahead Page no. 9 of bus stand Shamshan Ghaat Pusta, Geeta Colony, Delhi to supply heroin to someone and if raided, he could be caught. He further deposed that secret informer was also present in the office and thereafter, SI Rajnikant constituted a raiding party including himself, Ct. Samrat and took IO kit, field testing kit and electronic weighing machine and at about 4:20 pm, DD No.17 was lodged with regard to their departure. They all left in car no. DL8CP 3419 WagonR, a private car from office, drove by SI Rajnikant. They all three police officials along with secret informer left office for conducting the raid and on the way at Shanti Van red light and after crossing Yamuna Bridge near Shamshan Ghaat, SI Rajnikant informed 4-5 passerby about the secret information and requested them to join the investigation but they left the spot citing their personal reasons and thereafter, they reached near the spot and SI Rajnikant parked his vehicle at a 50 meter distance from the spot and SI Rajnikant briefed them and then they all took their positions at around 5:00 pm. He further deposed that at about 05:20 pm, one person was seen coming on foot from the side of Shamshan Ghat, who was identified by the secret informer from a distance of 30 meter as Nahid Khan and thereafter, secret informer left from there. He identified the accused before the Court. He further deposed that accused Nahid Khan stopped about 200 meters ahead of Shamshan Ghat Bus Stand near Street lamp and started waiting for someone and after waiting for about 10 minutes, accused started going towards Shamshan Ghat and then SI Rajnikant with the help of raiding team apprehended him. IO interrogated accused and his name was revealed as Nahid Khan s/o Wahid Khan r/o 284 Shivpuri, PS Siroli, Tehsil Amla, Dist. Bareilly, UP. He further deposed that SI Rajnikant introduced himself and raiding team members to the said person and also requested 4-5 public persons to join the Page no. 10 investigation but none agreed and left the spot without giving their names and addresses. He further deposed that SI Rajnikant asked Ct. Samrat to bring the car at the spot, who brought the same there. He further deposed that Sl Rajnikant told the accused that he had received information against him that he might be in possession of heroin procured from Bareilly and his search was to be taken in this regard and it was his legal right that he could be searched in the presence of Gazetted Officer or Magistrate or he could take search of any of the raiding team members and of the private car prior to his search, if he was so desired but he refused for the same. He further deposed that thereafter, SI Rajnikant prepared notice u/s 50 NDSP Act and original notice was given to the accused and on the carbon copy of the notice Ex.PW4/A, his reply was written by SI Rajnikant on the dictation of the accused as he had requested to write down his reply being illiterate. He further deposed that accused put his LTI on the carbon copy of notice and his reply to the said notice is Ex.PW4/A1 having LTI of accused. He further deposed that after that, accused was personally searched by Sl Rajnikant and from the left side pocket of his jeans, one transparent polythene, tied with rubber band, was recovered containing matiala colour powder. He further deposed that IO removed the rubber band and took some powder from the said transparent polythene, which was tested on field testing kit and found to be heroin. He further deposed that the said transparent polythene containing the heroin was weighed on the electronic weighing machine and found to be 200 grams Heroin. He further deposed that two samples of 5 grams each were drawn from the recovered heroin, which were kept in two separate transparent polythenes after tying with rubber bands and parcels were prepared with the help of cloths and the sample parcels were marked as A Page no. 11 and B and remaining 190 grams Heroin was kept in the same transparent polythene, which was converted into cloth parcel and given Mark C. He further deposed that all the parcels were sealed with the seal of 5A PS NB DELHI and FSL form was also prepared by the IO after affixing same seal and seal after use was handed over to him. He further deposed that all the parcels and FSL form were taken into possession vide seizure memo Ex.PW4/C and thereafter, IO prepared a tehrir and handed over to him along with all the sealed parcels, copy of seizure memo and FSL form with directions to hand over the rukka to DO and parcels and documents to the SHO for necessary action and he left the spot at about 8:45 pm for registration of the case in the said private car. He drove the said car to the PS Crime Branch and at about 09:45 pm reached at PS Crime Branch Malviya Nagar and handed over the tehrir to Ct. Rajkumar for registration of FIR. He also handed over all the pullandas, seizure memo and FSL to SHO and after registration of FIR no. 174/2016, its number was mentioned on seizure memos and SHO also put his signatures on them. He further deposed that SHO called HC Jagnarayan, MHC (M) along with the register no. 19 and handed over all the pullandas, FSL forms and carbon copy of the seizure memos. MHC(M) made entry in his register no. 19 in the presence of the SHO, who put his signatures on it. He further deposed that SHO also made entry vide DD No. 21 u/s 55 NDPS Act at about 10:30 pm in roznamcha register. He further deposed that after registration of FIR, DO handed over copy of FIR and original rukka to him at about 11:00 pm and thereafter at about 12:00 am, he reached at office of Narcotics Cell, Kotwali as per the directions of Senior Officials and he handed over original tehrir and copy of FIR to SI Ombir Dabas. He further deposed that thereafter, IO left for the spot leaving behind him in the office in private vehicle Page no. 12 bearing no. DL8CP3419. IO recorded him statement. He identified the case property i.e. one khaki colour envelope parcel Mark A sealed with the seal of MLM FSL DELHI and on opening on which, one unsealed cloth parcel having seals of 5A PS NB DLEHI & VSS containing one transparent polythene, which further contains sample as drawn from the recovered heroin Ex.P1 colly, one cloth parcel Mark B sealed with the seal of 5A PS NB DLEHI & VSS containing sample as drawn from the recovered heroin Ex.P2 colly, one cloth parcel Mark C sealed with the seal of 5A PS NB DLEHI & VSS, on opening the same, one transparent polythene containing smack as recovered from the possession of the accused Ex.P3 colly and original notice u/s 50 NDPS Act, recovered from the personal search of accused Ex.P4.
10. PW6 Assistant Sub Inspector Mahesh Chand, No.122 Crime, MHCM Narcotic Cell, Kotwali Daryaganj, Delhi deposed that on 20.06.2013, he issued three seals having impression '5A PS/NB DELHI', '05B PS/NB DLEHI' and '5C PS/NB DELHI' to SI Rajini Kant, who returned the said seals to him on 29.12.2016 and he made entry in seal issuance register at serial No.19 in this regard Ex.PW6/A (OSR). He further deposed that on 17.10.2016, he issued electric weighing machine to SI Rajni Kant at 4:10 pm, who returned the said machine to him on 18.10.2016 at 8 am and he made entry in electric weighing issuance register at serial No.62 in this regard Ex.PW6/B (OSR).
11. PW7 Assistant Sub Inspector Jagnarayan, No. 2528, Security PS Crime Branch, Pushp Vihar, New Delhi deposed that in the year 2016, he was working as MHC(M) PS Crime Branch, New Delhi and on 17.10.2016, Inspector Virender Singh, SHO PS Crime Branch, Malviya Nagar handed over him three parcels marked A,B,C and Form FSL having seal Page no. 13 impression of '5APSNBDELHI' and 'VSS' along with copy of seizure memo pertaining to this case for depositing in malkhana. He made entry in this regard in register no.19 at serial no. 2647 Ex. PW7/A. He further deposed that on 18.10.2016, SI Ombir deposited personal search items of accused Nahid Khan including original notice of section 50 NDPS Act and he made entry at serial no. 2648 in this regard Ex. PW7/B. He further deposed that on 21.10.2016 on the instruction of SHO PS Crime Branch, he got deposited sample parcels, FSL form and copy of seizure memo in FSL Rohini through Ct. Pankaj vide RC no. 374/2021 in proper sealed condition and Ct. Pankaj handed over him copy of RC and original acknowledgment after depositing the aforementioned items in FSL. He further deposed that during custody of the above exhibits, it were intact and were not tampered with. His statement was recorded by the IO. He made entry regarding deposit of sample and Form FSL in FSL Rohini at point A in register no. 19. He further deposed that on 08.12.2016, he received FSL result and one parcel having seal of FSL Rohini through HC Satish Kumar. He deposited the parcel in malkhana and handed over the result to IO and made entry in register no.19 in this regard (original register no.19 seen and returned). Copy of RC is Ex. PW7/C and copy of acknowledgment is Ex. PW7/B (OSR).
12. PW8 Head Constable Sanwar, No.1433 Crime, posted at PS Crime Branch, Delhi deposed that he brought original diary register pertaining to the record of 2016 and report under section 57 NDPS Act pertaining to this case. He further deposed that as per record, report under section 57 NDPS Act of FIR No.174/2016 PS Crime Branch prepared by IO /SI Rajnikant Sharma dated 18.10.2016 was received in their office vide diary no.2566 on 18.10.2016 and the report was seen and Page no. 14 signed by the then ACP Sh. Sanjeev Kumar Tyagi Ex. PW8/A and copy of relevant entry of diary register is Ex. PW8/B (OSR). He also brought original diary register pertaining to the record of 2016 and report under section 57 NDPS Act pertaining to this case. He further deposed that as per record, report under section 57 NDPS Act of FIR No.174/2016 PS Crime Branch prepared by IO /SI Omvir Dabas dated 18.10.2016 was received in their office vide diary no.2567 on 18.10.2016 and the report was seen and signed by the then ACP Sh. Sanjeev Kumar Tyagi Ex. PW8/C and copy of relevant entry of diary register is Ex. PW8/D (OSR). He also brought original diary register pertaining to receipt of DD No.16 dated 17.10.2016 regarding information recorded under section 42 of the NDPS Act of SI Rajnikant Sharma along with the original DD No.16 dated 17.10.2016. DD No.16 dated 17.10.2016 Ex. PW2/A (OSR). He produced original copy of DD No.16 dated 17.10.2016 Ex. PW8/E. He further deposed that as per original diary register DD No.16 dated 17.10.2016, information was received in ACP Office on 17.10.2016 vide diary no. 2563 and the copy of relevant entry of diary register is Ex. PW8/F (OSR).
13. PW9 Sh. Sanjeev Kumar Tyagi, retired ACP, r/o 295, SD Block Pitampura, New Delhi deposed that on 17.10.2016, he was posted as ACP-N & CP in Crime Branch, Delhi and on the same day, Inspector Jai Bhagwan at about 3:50 pm informed him regarding secret information that one Nahid Khan resident of Bareilly was bringing Heroin at Geeta Colony Pusta near Shamshanghat Bus Stand between 5 to 6 pm to deliver the same to some person. He directed Inspector to conduct raid. He further deposed that on the same day, his Reader put up DD No.16 dated 17.10.2016 Ex.PW8/E, duly forwarded by Inspector Jai Bhagwan, which was seen and signed by him. He further deposed that on next day, his Reader put up before him Page no. 15 report under section 57 NDPS Act of SI Rajnikant Sharma Ex.PW8/A regarding recovery of contraband and arrest report under section 57 NDPS Act of SI Omvir Dabas regarding arrest of accused Nahid Khan Ex.PW8/C, which were seen by him and signed.
14. PW10 Constable Pankaj Kumar, No.10013/DAP, 2 nd Battalion, Kingsway Camp, Delhi deposed that on 21.10.2016, he was posted as a constable in PS Crime Branch and on that day on the direction of IO SI Omvir Dabas, he went to Malkhana Crime Branch after recording departure entry vide DD no.5 at 7.30 am and MHCM HC Jagnarayan handed over him one sealed pullanda Mark 'A', one FSL Form with seal of '5A PS NB DELHI' and 'VSS' vide RC No.374/21 dated 21.10.2016. He deposited the same in FSL Rohini on 21.10.2016 vide receipt FSL -2016/CHE-8025 dated 21.10.2016 and thereafter, came back to malkhana PS Crime Branch and handed over copy of the RC and acknowledgment to MHCM HC Jagnarayan. He deposed that the exhibits were remain intact during his possession and were not tampered with. His statement was recorded by the IO.
15. PW11 Inspector Rajni Kant, No. D-3954, TI Punjabi Bagh, Delhi deposed that on 17.10.2016, he was working as Sub Inspector in Narcotics Cell Crime Branch office Daryaganj and at about 3.30 pm while he was present in his office, an informer came to him and informed that one Nahid Khan r/o Bareilly, UP, who deals in supplying heroin in Delhi after procuring the same from Bareilly, UP and on that day also, he would come between 5-6 pm about 200 meters ahead of bus stand Shamshan Ghaat Pusta, Geeta Colony, Delhi to supply heroin to someone and if raided, he could be caught. He further deposed that at about 3.45 pm, he produced the informer to Inspector Jai Bhagwan in his office and told him about the information, who also enquired Page no. 16 from the secret informer and after satisfying with the information informed the same to ACP Narcotics Sh. Sanjeev Tyagi in his office, who directed him to take action accordingly. He lodged the information vide DD no.16 under section 42 of the NDPS Act Ex. PW8/E and produced before Inspector Jai Bhagwan, who forwarded the same to ACP Office. He further deposed that under the direction of Inspector Jai Bhagwan, he constituted a raiding party comprising himself, HC Ismail and Ct. Samrat. He collected IO kit, field testing kit and electronic weighing machine and at about 4.20 pm, vide DD No.17 Ex.PW11/A which was in his handwriting, they departed for the raid in a private WagonR car no. DL8CP 3419 from office drove by him. They reached Shanti Van red light and from there straight and after crossing Yamuna Bridge took a left turn and crossed Shamshan Ghaat and reached about 200 meters ahead of bus stand Shamshan Ghaat Pusta at about 4.50 pm and car was parked by the site of the road about a distance of 150 meters. He briefed the staff and took position near the spot at around 5.00 pm and at about 5.20 pm, one person came from Shamshan Ghat side on foot and stopped near a street lamp 20 meters ahead from Shamshan Ghat Pusta Bus Stand. He further deposed that after about ten minutes, the said person turned and started to go back, who was identified by the secret informer as Nahid Khan and after his identification, the informer left the spot. He along with staff apprehended the Nahid Khan and introduced himself and raiding team member to him. He called for his private vehicle parked about 50 meters from the place of his apprehension through Ct. Samrat. He further deposed that some passerby gathered there after seeing raid. He requested 4-5 public persons to join the investigation but none agreed and left the spot without giving their names and addresses and thereafter, he told Nahid Khan about the information that he Page no. 17 was having information that accused Nahid Khan might be in possession of heroin procured from Bareilly and his search was to be taken in this regard and it was his legal right that he could be searched in the presence of Gazetted Officer or Magistrate or he could take search of any of the raiding team members and of the private car prior to his search, if he was so desired but accused refused for the same. He prepared notice u/s 50 NDPS Act and original notice was given to the accused Nahid Khan Ex.PW4/A and signed by him. He further deposed that accused Nahid refused to be searched in the presence of a gazetted officer or a Magistrate and also stated that he did not want to personally searched the police team or the vehicle and he stated that he was willing for his personal search. He further deposed that since accused was illiterate, he was requested to write down his request and the same was recorded by him on the carbon copy of notice Ex. PW4/A and the refusal of the accused was recorded on notice Ex. PW4/B by him and the same was read over to accused Nahid Khan which was acknowledged by him and his acknowledged was taken i.e. his thumb impression. He conducted casual search of the accused Nahid Khan and found a transparent polythene tied with rubber band, was recovered containing muddi colour powder. He removed the rubber band and test a small part of powder from the recovered polythene on field testing kit and found to be heroin. He further deposed that said transparent polythene containing heroin was weighed on the electronic weighing machine and the weight was found to be 200 grams, out of which two samples of 5 grams each were drawn and were kept in two separate transparent polythenes after tying with rubber bands and parcels were prepared with the help of clothes and were marked as A and B. He further deposed that remaining 190 grams heroin was kept in the same transparent polythene Page no. 18 after converting into cloth parcel and was given Mark C. He further deposed that all the parcels were sealed with the seal of 5A PS NB DELHI and thereafter, he filled the FSL form and put the seal 5A PS NB DELHI on FSL Form. He further deposed that seal after use was handed over to Ct. Samrat and thereafter, all parcels and FSL form were taken into possession vide seizure memo Ex.PW4/C. He prepared rukka Ex. PW11/B and handed over to HC Ismail along with all sealed parcels, copy of seizure memo and FSL form with directions to hand over the rukka to the duty officer and parcels and documents to the SHO for necessary action. He further deposed that HC Ismail left the spot at about 8.45 pm for registration of the case in the private car no. DL 8CP 3419. He remained along with accused and Ct. Samrat on the spot and at about 12:00 midnight on the intervening night of 17-18.10.2016, SI Ombir Dabas came at the spot in the above said vehicle driven by him. He briefed SI Ombir Dabas regarding the recovery of the contraband and handed over all the relevant documents to him. He handed over the custody of the accused Nahid Khan to SI Ombir Dabas and SI Ombir prepared site plan Ex.PW11/C at his instance at about 12:30 am to 01:00 am. He further deposed that thereafter, IO SI Ombir recorded statement of Ct. Samrat at the spot from 1 am to 2:30 am. He further deposed that IO SI Ombir interrogated the accused and arrested accused at about 2:45 am vide arrest memo Ex.PW4/D and personal search of accused was conducted vide memo Ex. PW4/D. He further deposed that thereafter, accused Nahid Khan was interrogated and his disclosure statement Ex.PW4/D2 was recorded. He further deposed that at about 3.15 am, IO SI Ombir Dabas and other police comprising himself and Ct. Samrat along with accused left the spot for the office of PS Crime Branch, Malviya Nagar, New Delhi and reached there at about 4:15 am and IO Page no. 19 deposited the jamatalashi articles in the malkhana through MHCM HC Jagnarain. He further deposed that statements of SHO and HC Jagnarain were recorded. They left PS Crime Branch at about 5 am along with accused Nahid Khan in the said private car and reached the office of Narcotics Cell Crime Branch, Daryaganj and at about 6 am accused Nahid Khan was produced by the IO before inspector Jai Bhagwan, who also made enquiries from the accused and found the recovery, which had been effected from the accused as genuine and his arrest was also found to be justified. He further deposed that IO recorded his statement and that of Inspector in the office. He prepared a report under section 57 NDPS Act regarding seizure of 200 grams of heroin and gave to Inspector Jai Bhagwan Ex.PW8/A. He identified the accused before the Court. He identified the case property i.e. one khaki colour envelope parcel Mark A sealed with the seal of MLM FSL DELHI and on opening on which, one unsealed cloth parcel having seals of 5A PS NB DLEHI & VSS containing one transparent polythene, which further contains sample as drawn from the recovered heroin Ex.P1 colly, one cloth parcel Mark B sealed with the seal of 5A PS NB DLEHI & VSS containing sample as drawn from the recovered heroin Ex.P2 colly, one cloth parcel Mark C sealed with the seal of 5A PS NB DLEHI & VSS, on opening the same, one transparent polythene containing smack as recovered from the possession of the accused Ex.P3 colly, original notice u/s 50 NDPS Act, recovered from the personal search of accused Ex.P4 and one voter ID card, Rs.500/- and four currency notes of 100 each, 5 currency notes of 10 each recovered during personal search of accused Ex.P5 (colly.).
16. PW12 Inspector Omvir Dabas No. D-4504, PS Hauz Qazi, Central District, Delhi deposed that on 18.10.2016, he was posted at Narcotics Cell, Crime Branch as Sub Inspector Page no. 20 and at about 12 midnight, HC Mohd. Ismail handed over him Rukka and copy of FIR for further course of action at Dariya Ganj, Narcotics Office. He further deposed that at about 12:15 pm, he left for the spot where he met SI Rajni Kant and other police staff alongwith accused Nahid Khan. He further deposed that SI Rajni Kant informed him all the facts of case and handed over all relevant documents and thereafter, he prepared site plan at the instance of SI Rajni Kant Ex. PW11/C and recorded the statement of Ct. Samrat. He further deposed that after interrogation of accused, he arrested him vide Arrest Memo Ex. PW4/D. He conducted personal search of accused vide memo Ex. PW4/D1 in which one original notice u/s 50 NDPS Act, Voter I-card, Rs. 950/- were found. He recorded disclosure statement of accused vide memo Ex. PW4/D2 and after conducting all the proceedings at the spot, he alongwith staff and accused reached at PS Crime Branch Malviya Nagar and personal search articles were handed over to MHC(M) HC Jag Narayan. He further deposed that thereafter, SHO Crime Branch Virender Singh was present there and his statement and statement of HC Jag Narayan were recorded. He further deposed that after conducting all the enquiry at the police station, he returned back alongwith staff and accused to the office of Crime Branch, Dariya Ganja and accused was produced before Inspector Jai Bhagwan, who interrogated the accused and after interrogation, Inspector was satisfied with the arrest and recovery from the accused. He registered arrival entry at office vide DD no. 6 Ex. PW12/1. He recorded statement of witnesses and prepared report u/s 57 NDPS Act Ex. PW2/C. He further deposed that subsequently, the samples were sent to FSL through Ct. Pankaj. He collected FSL report Ex. PW12/2 and prepared the chargesheet in the present matter and filed before the court Ex. PW12/3. He identified the Page no. 21 accused before the Court. The production of personal search articles of accused has been dispensed with as same has already been shown during recording of testimony of PW11.
STATEMENT OF ACCUSED under section 313 Cr.P.C.
17. After completion of prosecution witnesses, statement of accused under Section 313 Code of Criminal Procedure was recorded on 16.04.2025. Accused submitted that he was innocent and had been falsely implicated in the present case by planting illegal contraband upon him by the police. Nothing contraband has been recovered from him. He is an illiterate person and having two small children. He is a law abiding citizen and doing private job honestly in order to fulfill the needs of his family. Accused did not prefer to lead defence evidence.
18. Ld. APP has argued that the prosecution witnesses have proved beyond reasonable doubt that the accused Nahid Khan was apprehended with 200 grams of heroin on 17.10.2016. It has been argued that the testimonies of the prosecution witnesses have remained unrebutted and uncontroverted. It is further submitted that testimonies of prosecution witnesses have proved beyond reasonable doubt that on 17.10.2016, accused Nahid Khan was apprehended at about 5:20 pm near Geeta colony Pusta, Road leading towards Shastri Park at a distance of about 200 meter from bus stand Shamshan Ghat/Pusta, Delhi and 200 grams heroin was recovered from transparent polythene recovered from the left side pocket of his jeans. It is argued that all the mandatory provisions of the NDPS Act were duly complied with by the IO and mere non- drawing of sample before the Magistrate cannot be taken as a sole circumstance to warrant an inference against the recovery of contraband from the accused.
19. Ld. counsel for the accused submitted that the accused has been falsely implicated in the present case. He submits that Page no. 22 there are serious infirmities in the case of the prosecution. It is submitted that even though the purported recovery happened in a public place, there are no independent witnesses. It is further submitted that in the present case, upon seizure, the compliance of Section 52A of the NDPS Act was not made and the sampling procedure was not carried out before the Judicial Magistrate, which shows that accused is innocent and the entire proceedings were conducted at the police station by the investigating officers. It is argued that the accused has been falsely implicated as he did not accede to the illegal demand made by the police officials.
20. Arguments have been argued. Record perused.
21. In the present case, prosecution witnesses PW4, PW5 and PW11 have deposed that after a secret information was received by PW11 on 17.10.2016, a raiding team comprising of PW4, PW5 and PW11 were constituted. The accused was apprehended near Geeta colony Pusta, Road leading towards Shastri Park at a distance of about 200 meter from bus stand Shamshan Ghat/Pusta, Delhi. Accused disclosed his name as Nahid Khan. PW11 served the notice under Section 50 NDPS Act on the accused. However, the accused stated that he does not want to get his searched conducted before the gazetted officer or the magistrate and also do not want to take the search of raiding team. These witnesses have also deposed that IO made efforts to join public persons, however, none agreed. PW11 conducted search of accused and 200 grams heroin was recovered from transparent polythene recovered from the left side pocket of his jeans. PW11 took a small quantity of the recovered substance and tested the same on field testing kit and substance was found to be heroin. They further deposed that said transparent polythene containing heroin was weighed on the electronic weighing machine and the weight was found Page no. 23 to be 200 grams, out of which two samples of 5 grams each were drawn and were kept in two separate transparent polythenes by PW11 after tying with rubber bands and parcels were prepared with the help of clothes and were marked as A and B. They have further deposed that remaining 190 grams heroin was kept in the same transparent polythene after converting into cloth parcel and was given Mark C. These witnesses have further deposed that all the parcels were sealed with the seal of 5A PS NB DELHI and thereafter, PW11 filled the FSL form and put the seal 5A PS NB DELHI on FSL Form. They have further deposed that seal after use was handed over by PW11 to Ct. Samrat and thereafter, all parcels and FSL form were taken into possession vide seizure memo Ex.PW4/C. PW11 prepared rukka Ex. PW11/B and handed over to HC Ismail along with all sealed parcels, copy of seizure memo and FSL form with directions to hand over the rukka to the duty officer and parcels and documents to the SHO for necessary action. PW4, PW5 and PW11 have further deposed that further investigation in the present case was marked to PW12, who reached the spot. PW12 interrogated the accused, prepared the site plan and formally arrested the accused.
22. The evidence led by the prosecution shows that there are no public witnesses. It is established proposition of law vide catena of judgments viz. Dharampal Singhv. State of Punjab, (2010) 9 SCC 608; Raveen Kumar v. State of Himachal Pradesh, 2020 SCC, Jarnail Singh v. State of Punjab, (2011) 3 SCC 521; Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 and Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120 OnLine SC 869 that the case of the prosecution cannot be rejected merely on account of the case being tethered on the testimonies of official witnesses and non-examination of independent witnesses would thus not be Page no. 24 fatal to the prosecution's case. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials or due to absence of corroboration from independent witnesses and the prosecution may furnish an explanation to justify the non-joinder of public witnesses during the course of the trial.
23. The Hon'ble Apex Court In the case of Raveen Kumar v. State of Himachal Pradesh (supra), while dealing with the question of whether absence of independent witnesses is fatal to the prosecution's case observed that while reliable testimonies of police officials can form the basis of conviction, lack of corroboration from independent witnesses casts an additional duty on the Court to exercise a higher degree of caution while scrutinizing the testimonies of the official witnesses. Thus, the Court has to see whether the evidence of prosecution witnesses has furnished an explanation to justify the non-joinder of public witnesses. Further the testimonies of the prosecution witnesses have to be scrutinized by exercising higher degree of caution.
24. In the present case, the testimony of PW11, who conducted the investigation is completely silent with regard to any efforts being made by him to join public witnesses in the search and seizure proceedings. However, PW4 and PW5 in their testimonies have deposed that PW11 asked 4-5 persons to join the investigation near Shantivan Red light as well as near the spot from where the accused was arrested but none agreed. However, their testimonies are completely silent whether the IO gave any notice to such public persons or recorded their names and addresses. The testimonies of PW4, PW5 and PW11 raise doubts as to any effort being made by the IO to join public witnesses during search and seizure proceedings.
Page no. 25
25. The presumption of innocence until proven guilty is the cardinal principle of the criminal justice system. However, considering the adverse effect of offences under the NDPS Act on the security of the individual, society, economy and country, which not only endanger the society at present, but hollows out generations, legislature has provided in the form of Section 54 of the Act for a reversal burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. Section 35 of the Act provides for presumption of culpable state of mind. The presumptions under Section 35 and Section 54 of the Act, however, does not dispense with the requirement of the prosecution to establish a prima facie case in the backdrop of sufficient, cogent and clear evidence with observance of mandatory provisions under sections 42, 50, 52 and 57 of the Act, where after the accused has to be called to account for his possession. The Hon'ble Supreme Court in Naresh Kumar Vs. State of Himachal Pradesh, MANU/SC/0908/2017 observed as under:
9. The presumption against the Accused of culpability Under Section 35, and Under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the Accused to a fair trial could not be whittled down under the Act was considered in Noor Aga v. State of Punjab MANU/SC/2913/2008 : (2008) 16 SCC 417, observing:
58 ...An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the Accused to prove his innocence is not as high as that of Page no. 26 the prosecution. Whereas the standard of proof required to prove the guilt of the Accused on the prosecution is "beyond all reasonable doubt"
but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the Accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused.
The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.
26. There is no documentary evidence on record to show that the proceedings under section 52 A NDPS, Act were undertaken. Prosecution witnesses are completely silent in this regard. Section 52 A of NDPS Act provides as under:
Section 52A of the NDPS Act "52A. Disposal of seized narcotic drugs and psychotropic substances.-- (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic Page no. 27 substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any
27. A bare reading of section 52A NDPS, Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. The testimony of prosecution witnesses shows that neither any inventory of contraband recovered from the accused persons were drawn nor the same was forwarded to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true. Further the samples sent to the FSL were also not drawn in the presence of magistrate. The Hon'ble Supreme Court in Mangilal v. State of M.P., 2023 SCC OnLine SC 862 has observed as under:
6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an Page no. 28 inventory or for a photograph taken apart from list of samples drawn...
28. The Hon'ble Apex Court recently in Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393 observed as under:
26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.
29. In the present case, PW11 has deposed that he drew two sample of 5 grams each from the contraband. The samples drawn from the contraband were converted into cloth pullindas marked as Mark A and Mark B sealed with the seal of 5A PS NB DELHI and the remaining contraband was also converted into a separate pullanda marked as Mark C and sealed with the seal of 5A PS NB DELHI. FSL Report Ex.PW12/2 dated 10.11.2016 shows that Parcel A sealed with one seal of 5A PS NB DELHI and one seal of VSS. PW3, SHO has deposed that seal of VSS was affixed on the parcels by him after the same were handed over alongwith the FSL Form and copy of seizure memo. No seal of magistrate is found affixed on the pullandas sent to FSL. Further, the testimonies of the prosecution witness shows that no sample was drawn in the presence of magistrate nor any inventory was prepared by the SHO. No seal handing over memo has been produced on record. The fact that the samples of the seized contraband were not drawn in the presence of the Magistrate and the inventory of the seized contraband was also not certified by the Magistrate has further shrouded the testimony of prosecution witnesses under doubt. The Hon'ble Apex Court in Yusuf v. State, 2023 SCC OnLine SC 1328, while discussing the mandatory nature of Section 52A of the NDPS Act observed as under:
Page no. 29
15. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-
charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stand vitiated.
30. In the present case, the samples drawn by PW11 on the spot at time of recovery, were sent to FSL and no samples were drawn before the Ld. Magistrate therefore in the absence of sample drawn before Ld. Magistrate and absence of Inventory of seized contraband duly certified by Ld. Magistrate as per Section 52A NDPS Act, it is apparent that the seized contraband and the sample drawn are not a primary evidence in trial, accordingly, in the absence of primary evidence with regard to samples, the whole trial stands vitiated in view of settled legal proposition as discussed by the Hon'ble Apex Court in Yusuf Vs. State, Supra.
31. Further, in the present case, contraband was seized on 17.10.2016 and the samples have been sent to FSL on 21.10.2016 and thus, there is a delay of four days in sending the samples to FSL. The FSL report shows that reference number dated 20.10.2016, however, road certificate and the Page no. 30 acknowledgement from FSL shows that pullanda was received in FSL on 21.10.2016. A specific query was made by the Court from PW7 after Ld. Defence Counsel confronted the witness with entry no. 2648 in register no. 19, which shows that case property was sent to FSL vide road certificate bearing no. 372/21 dated 20.10.2016 but the same could not be deposited at FSL as to why the case property could not be deposited on 20.10.2016. PW7 replied that he is not aware of the reason and admitted that reason for not depositing the case property in FSL on 20.10.2016 is not mentioned in the register and Constable Pankaj, who had taken the case property has also not signed register no. 19 against the entry no. 2648/2016. Ex.PW7/C dated 21.10.2016, which is the road certificate is completely silent with regard to the previous occasion on which the case property was sent to FSL. It is not clear from the testimonies of prosecution witnesses as to for how much time, case property remained in the custody of Constable Pankaj. This fact coupled with the absence of any seal handing over memo raises serious doubts as to the chain of custody of the case property, sent to FSL. The testimonies of prosecution witnesses with regard to arrival of second IO at the spot is also contradictory in so far as PW4 has deposed that 2nd IO SI Omvir Dabas arrived at the spot alongwith HC Ismail, whereas, HC Ismail, who deposed as PW5 testified that 2nd IO left him at the police station and proceeded to the spot.
32. The foundational facts for proving the offence under Section 21(b) of the NDPS Act by the prosecution stems from the recovery of contraband in the present case. However, keeping in view, the failure of the prosecution to explain the reasons for not sending the samples to FSL on 20.10.2016 coupled with the fact that there is no seal handing over memo, the chain of custody of contraband is doubtful. Further, no Page no. 31 samples have been drawn in the presence of Magistrate and the samples drawn by the IO on the spot have been sent to the FSL. Accordingly, the prosecution has failed to prove the charge under section 21(b) NDPS Act against the accused Nahid Khan beyond reasonable doubt.
33. In view of the abovesaid discussion, accused Nahid Khan is acquitted of the offence under Section 21(b) NDPS Act.
34. Bail bond of the accused except bail bond filed under section 437A CrPC stand cancelled and surety stand discharged.
35. File be consigned to record room after due compliance. Announced in the open court on this 16th Day of May, 2025.
Digitally signed byALOK ALOK SHUKLA (Alok Shukla) SHUKLA 17:32:58 +0530 Date: 2025.05.16 Additional Session Judge-2/ Special Judge (Narcotic Drugs and Psychotropic Substances) East/Karkardooma/Delhi.
Page no. 32