Delhi District Court
State vs Palwinder Singh Ors on 27 November, 2025
IN THE COURT OF ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No. 9147/2016
FIR No. 50/2015
PS SPECIAL CELL
CNR No. DLND010009182016
U/S 18(b) NDPS Act
STATE Vs. PALWINDER SINGH
Date of Institution : 22.02.2016
Date of Arguments : 23.09.2025,
30.10.2025 &
13.11.2025
Date of Judgment : 27.11.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 5
4. Plea of the Accused 18
5. Submissions made on behalf of the State 20
6. Submissions made on behalf of the Accused 22
7. Relevant Law & the Case Laws 26
8. Appreciation of Evidence 33
9. Conclusion & Findings 53
Digitally signed by
ATUL ATUL AHLAWAT
AHLAWAT Date: 2025.11.27
14:07:52 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/27.11.2025
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016
page no. 1 of 56
IN THE COURT OF ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No. 9147/2016
CNR No. DLND010009182016
STATE Vs. PALWINDER SINGH
FIR No. 50/2015
PS SPECIAL CELL
U/S 18(b) NDPS Act
Brief Details of the Case & Memo of Parties
STATE VS. PALWINDER SINGH
Date of Institution : 22.02.2016
Date of Arguments : 23.09.2025,
30.10.2025 &
13.11.2025
Date of Judgment : 27.11.2025
A) Session Case No. : 9147/2016
B) Charges framed under section : 18 (b) of NDPS Act,
1985.
C) Name of the complainant : IO SI Surender
Singh
D) Name of the accused : 1) Palwinder Singh
S/o Sh. Sukhdev
Singh
R/o Vill-Dashmesh
Nagar, PS, Jandiala,
Distt. Amritsar,
Punjab.
2) Jagbir Singh @
Jagga (Since
declared as
Proclaimed Person)
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016
page no. 2 of 56
Digitally signed
by ATUL
AHLAWAT
ATUL Date:
AHLAWAT 2025.11.27
14:08:09
+0530
S/o Sh. Bakhtawar
Singh
R/o Vill-Raipur
Kalan
PS, Jandiala,
Distt. Amritsar,
Punjab.
E) Plea of the accused : Not guilty
F) Final Order : Acquitted
G) Date of Order : 27.11.2025
JUDGMENT
(Pronounced on the 27th day of November, 2025) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 28.08.2015, when HC Harichand received a secret information regarding the trafficking of afeem/opium from Delhi to Punjab.
As per the secret information, accused Palwinder Singh r/o Amritsar, Punjab would be traveling to Punjab from GT Karnal Road bypass at about 09.00 pm on 28.05.2025 itself and if raid is conducted, heavy recovery of the contraband could be affected.
2. The secret information was recorded in writing by HC Harichand and same was produced before the superior officers and the requisite authorization to constitute the raiding team was granted by ACP Special Cell. The raiding team reached G. T. Karnal Road bypass and the IO SI Kuldeep Bhoria had asked 3-4 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:08:23 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 3 of 56 public persons to join the raiding team, however, none of them agreed to join the raiding team and left by citing their genuine difficulties.
3. The raiding team took their respective positions near the GT Karnal bypass and at about 08.40 PM, at the instance of the secret informer, accused Palwinder Singh was apprehended and the accused was informed about the secret information received by the office of Special Cell and he was informed that he was suspected to be carrying opium. The accused was given the offer to be searched before the Gazetted Officer or Magistrate, and he was also offered to take search of the police officials and their vehicle, to which he politely refused. Thereafter, notice u/s 50 of NDPS Act was served upon the accused Palwinder Singh and nothing incriminating was found from his personal search and upon checking his grey colored bag, one steel water bottle, few items of clothing, one small handbag in which daily use articles were found. There were one pair of bathroom slippers and when the contents of the bag were removed and at the bottom, one thaili which was wrapped in newspaper was found. Upon opening the same black colored soft substance was recovered and when the same were cut opened with the help of a cutter, the small portion was checked with the testing kit and it was found to be afeem/opium. The total weight of the recovered contraband was found to be 7.560 kg (alongwith the weight of the polythene and the newspaper) and the net weight of opium was found to be 7.460 kg. The IO then prepared two representative samples of 50 grams each and they were kept in two transparent ziplock pouches and marked as Mark S-1 and S-2, respectively. The Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.27 14:08:44 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 +0530 page no. 4 of 56 remaining substances were kept in a transparent polythene and was given Mark A. Both the sample packets and pullanda were sealed with the seal of 'KB'.
4. The sample containing the contraband was sent to FSL Rohini and on 11.12.2015, the FSL report from FSL, Rohini received, which had given the positive result of the sample marked 'S1' to be containing opium alkaloids i.e. morphine, codeine, narcotine, papaverine and thebaine. The exhibit was found containing 2.274 % morphine.
5. After completing the investigation, the IO filed the charge-
sheet before this Court on 20.02.2016. After compliance of section 207/208 Cr.P.C, 1973, the charges were framed by my Ld. Predecessor on 23.032016 u/s 18 (b) of the NDPS Act, 1985 against the accused Palwinder Singh. The accused pleaded not guilty and he had claimed trial.
Prosecution Evidence:
6. To prove its case, the prosecution has examined 23 (twenty three) witnesses.
7. Expert Witness:
(7.1.1) PW-10 is Dr. Adesh Kumar and is the Senior Scientific Officer (Chemistry), FSL, Rohini. He had prepared the FSL Report dated 11.12.2015, Ex. PW-10/A, after he had examined the parcel marked as Mark S-1. After the CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 5 of 56 Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.27 14:08:52 +0530 examination/analysis of the sample, it was found positive for opium alkaloids i.e. morphine, codeine, narcotine, papaverine and thebaine. The exhibit S1 was found containing 2.274 % morphine. He identified his own signatures and the report and on the envelope. The remnant sample was also correctly identified by him as Ex.PF.
8. Formal Witnesses:
(8.1.1) PW 13 is Pawan Singh and he is the Nodal Officer of Idea Limited. During his testimony, the prosecution has sought to bring on record the CAF and CDR of mobile no. 9780160800 for the period between 01.06.2015 to 31.08.2015, which was exhibited as Ex.PW13/A and Ex.PW13/B, respectively. The certificate u/s 65-B of the Indian Evidence Act was brought on record as Ex.PW13/C. As per the records, the said number was alloted to one Ms. Simarjeet Kaur.
(8.1.2) PW 13 Pawan Singh had further brought on record the CAF and CDR of mobile no. 7084693914 for the period between 01.06.2015 to 28.08.2015, which was exhibited as Ex.PW13/D and Ex.PW13/E, respectively. The certificate u/s 65-B of the Indian Evidence Act was brought on record as Ex.PW13/F. As per the records, the said number was alloted to one Mr. Roop Ram.
(8.2.1) PW 14 is Saurabh Aggarwal and he is the Nodal Officer of Vodafone Mobile Services Limited. During his testimony, the prosecution has sought to bring on record the CAF CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 6 of 56 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:09:00 +0530 and CDR of mobile no. 9780074188 for the period between 01.06.2015 to 01.09.2015, which was exhibited as Ex.PW14/A and Ex.PW14/B, respectively. The certificate u/s 65-B of the Indian Evidence Act was brought on record as Ex.PW14/C. As per the records, the said number was alloted to one Mr. Jagbir Singh.
(8.3.1) PW 15 is Chander Shekhar and he is the Nodal Officer of Bharti Airtel Limited. During his testimony, the prosecution has sought to bring on record the CAF and CDR of mobile no. 9793831900 for the period between 01.06.2015 to 31.08.2015, which was exhibited as Ex.PW15/A and Ex.PW15/B, respectively. The certificate u/s 65-B of the Indian Evidence Act was brought on record as Ex.PW15/C. As per the records, the said number was alloted to one Mr. Pawan.
(8.4.1) PW 17 is HC Rajeev Godara and he has deposed that in the year 2014 he was posted at special Cell NR as computer Incharge and he provided the mobile number wwhich was intercepted to SI Surender. The photocopies of the record were brought on record as PW17/A and Ex.PW17/B, respectively which were issued by the then DCP Special Cell Sh. Rajiv Ranjan.
(8.5.1) PW 19 is ASI Anil Singh and he has deposed that on 12.02.2016 at the instructions of the IO, he went for the verification of mobile numbers 9793831900 and 7084693914 Village Jalalpur and Village Behta Muradpur, District Shahjahanpur, UP and despite his detailed search, no clue Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.27 14:09:08 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 7 of 56 regarding the users of the said mobile phones could be found.
(8.6.1) PW 21 is ASI Chandrashekhar and he had brought original records pertaining to letters dated 01.05.2015 and 19.08.2015 written by the then ACP Sh. Rajiv Ranjan to Nodal officer Airtel and Idea, for providing interception facility as per Section 5 (2) of Indian Telegraph Act with respect to the mobile numbers to be kept under interception. The said letters were brought on record Ex.PW21/A and Ex.PW21/B, respectively.
(8.7.1) PW 11 is ASI Kamal Singh and he has deposed that on 01.05.2015, he was instructed to hear the conversations of two mobile phones bearing numbers 9780160800 and 9793831900, which were kept under legal interception. He further deposed that he heard the conversations and reduced the transcripts into writing and same were brought on record as Ex.PW11/A. He handed over the CD wherein the conversations were saved and the transcripts to the IO vide seizure memo Ex.PW11/C and Ex.PW11/B, respectively. He also issued the certificate u/s 65 B of Indian Evidence Act, 1872, Ex.PW11/D. (8.8.1) PW 3 is HC Preet Pal Singh and he is the then Duty Officer. He has deposed that on 28.08.2015, while he was posted as Duty Officer at PS Special Cell from 04.00 pm to 12 midnight and constable Devender produced the Rukka, Ex.PW2/A and on the basis of the same, he recorded the FIR Ex.PW3/A and made the endorsement on the rukka at point B on Ex.PW2/A after registration of the FIR.
(8.9.1) PW 9 is ASI Jasbir Singh and he is the then Duty Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 2025.11.27
page no. 8 of 56 14:09:15
+0530
Officer. He has deposed that on 28.08.2015, while he was posted as Duty Officer at PS Special Cell from 09.00 pm to 09.00 am and he had recorded DD Number 30 to 41 pertaining to the relevant entries in the present case and same were Ex.PW9/A (colly).
(8.10.1) PW 6 is Ct. Anil Kumar and he had deposed that on 02.09.2015 at the instruction of SI Kuldeep, he reached the office of PS Special Cell, Lodhi Colony and met with MHCM Sanjeev and obtained the pullanda with the seal of 'KB' and 'SHO Special Cell-I', which was marked as S1 and other documents vide RC No. 97/21/15. He got the same attested to ACP concerned and after getting the diary dispatch number he deposited the same with FSL Rohini. The FSL receipt bearing no. FSL 2015/CHE-5860 dated 02.09.2015 was issued by FSL and returned back to PS Special Cell, Lodhi Colony and handed over the carbon copy of the RC and photocopy of the FSL receipt to MHCM Sanjeev. He handed over the original FSL receipt and photocopy of the RC to IO SI Kuldeep.
(8.11.1) PW 7 is ASI Ved Prakash and he had deposed that on 31.12.2015, IO SI Surender handed over one authority letter issued by ACP for receiving the FSL result from FSL Rohini. He then collected the pullanda and one envelope in sealed condition and handed over the same to MHCM Sanjeev Kumar, after returning to PS Special Cell, Lodhi Colony. He then returned one envelope and covering letter to IO SI Surender.
(8.12.1) PW 12 is ASI Sanjeev and he is the then MHC(M). He had deposed that on 28.07.2015, he was called by Digitally signed by ATUL CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 ATUL AHLAWAT AHLAWAT Date:
page no. 9 of 56 2025.11.27
14:09:23
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Insp. Hriday Bhushan, who was working as SHO PS Special Cell to his office and he was handed over three parcels, FSL form and carbon copy of seizure memo for depositing the same with malkhana. He deposited the same and made the entry in register no. 19 vide serial no. 2626, which was exhibited as Ex.PW4/A. He further deposed that on the same day, IO SI Surender Singh handed over sealed parcel with seal of 'KB' and he deposited the same in the malkhana and made the entry in register no. 19 vide serial no. 2627, which was exhibited as Ex.PW4/B, pertaining to the mobile phone on personal search articles. He further deposed that on 11.10.2015, IO SI Surender Singh handed over sealed parcel with seal of 'SS' and he deposited the same in the malkhana and made the entry in register no. 19 vide serial no. 2651. He also deposed that on 05.09.2015 IO SI Surender Singh handed over the mobile phone which he had retained.
(8.12.2) PW 12 ASI Sanjeev had further deposed that on 02.09.2015, he handed over one sealed pullanda with 'KB' and 'SHO Special Cell-I', FSL Mark S1 and form FSL to Ct. Anil for depositing it with FSL Rohini vide RC No. 97/21/15, Ex.PW4/B and after the deposit, Ct. Anil handed over the acknowledgement of case acceptance, Ex.PW4/C. He also identified the signature and handwriting of the then MHC(M) SI M Baxela, who made the relevant entry in the register no. 21 regarding pullanda which was received by HC Hari Singh from FSL Rohini.
(8.13.1) PW 18 is Sunil Kumar, Dealing Cleark, MHA, Govt. of India. He brought on record the photocopy of the interception order no. 15/14/3/97-T dated 29.04.2015 and order Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:09:31 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 10 of 56 no. 15/14/3/97-T dated 17.06.2015, passed by Sh. L. C. Goyal the then Secretary, MHA. The said orders were marked as Mark A1 and A2, since the original orders would destroy by the order passed by Deputy Secretary (CIS), MHA and the said destruction order was exhibited as Ex.PW18/A. He had identified the signatures of Sh. Shailender Vikram Singh and the legal interception orders were also exhibited as Ex.PW18/B and Ex.PW18/C, respectively.
(8.14.1) PW 5 is ASI Satender Kumar and he is the then SO to ACP. He had further deposed that in his testimony, the prosecution had sought to bring on record the ittala (information), Ex.PW5/A was brought by HC Hari Chand, which was forwarded by Insp. Sanjay Nagpal and was marked to ACP Special Cell on 28.08.2015. He deposed that the said information was put up before the concerned ACP by him. He further deposed that on the same day, HC Hari Chand again came to him and handed over the excerpts of DD No. 30, Ex.PW5/B, which was also forwarded by Insp. Sanjay Nagpal and was marked to ACP concerned. He also brought on record two reports u/s 57 of the Act dated 29.08.2015 produced before him by IO SI Surender regarding apprehension of accused Palwinder Singh and seizure of 7.560 KG of opium, Ex.PW5/C and Ex.PW5/D, respectively. He also received photocopy of the disclosure statement of accused, Ex.PW5/E, which was bearing the signatures of Insp. Sanjay Nagpal and same was also marked to ACP Special Cell.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.11.27
14:09:42
+0530
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016
page no. 11 of 56
9. Material Witnesses
(9.1.1) PW 1 is HC Harichand and he had deposed that on
28.07.2015, while he was posted as HC as Special Cell at about 06.30 PM, secret informer met him at his office and gave the information qua accused Palwinder Singh, who would be catching a bus at GT Karnal Bypass at about 09.00 PM and if raid is conducted, big consignment of opium could be caught. He reduced the secret information into writing and handed over the information to Insp. Sanjay Nagpal, who in turn discussed the information with ACP concerned. Thereafter, he was called by SI Kuldeep Bhoria and was asked to join the raiding team.
(9.2.1) PW 2 SI Kuldeep Bhoria and he is the first Investigating Officer of the present case and he had deposed that on 28.08.2015, while he was posted at Special Cell, NR, Rohini, at about 07.00 PM he was called by Insp. Sanjay Nagpal to his office and he was informed about the secret information received by HC Hari Chand. The said information was reduced into DD No. 30 and he was instructed by Insp. Sanjay Nagpal to constitute a raiding party for taking necessary action in this regard. Thereafter, he constituted a team consisting of himself, HC Mandeep Singh, HC Hari Chand, HC Pawan Kumar, HC Ajay Kumar, Ct. Kuldeep, Ct. Devender and Ct. Nirmaljeet. He carried the arms and ammunition, the testing kit, weighing scale and IO kit alongwith him and the team left the PS after making the departure entry vide DD no. 31.
(9.3.1) It has come in the testimony of PW1 HC Hari
Digitally
signed by
ATUL
ATUL AHLAWAT
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 AHLAWAT Date:
2025.11.27
page no. 12 of 56 14:09:51
+0530
Chand, PW2 IO SI Kuldeep Bhoria, PW 4 HC Mandeep and PW8 HC Devender, who were all the members of the raiding team and they have proposed that after leaving the office of PS Special Cell, they reached the spot in two government official vehicles and PW2 IO SI Kuldeep Bhoria had stopped the vehicle near Badli Bus Stand and requested 3-4 passersby to join the raiding team, however, none of them agreed and left after expressing their genuine difficulties. Thereafter, they reached the flyover while coming from Peeragarhi side and at the end of the flyover took the loop towards Azadpur and after reaching GTK Bus Depot, they had taken U-turn towards the side of the road which was going towards Karnal and they crossed the flyover from underneath and stopped about 50 meters ahead of the flyover.
(9.3.2) It has further come in the testimony of PW1 HC Hari Chand, PW2 IO SI Kuldeep Bhoria, PW 4 HC Mandeep and PW8 HC Devender, that after taking the position the members of the raiding team and the secret informer waited for the suspect to arrive. At about 08.40 PM, the secret informer pointed towards the accused, who was getting down from the stairs and going towards the road which was leading towards bus stand for going to Karnal side. The accused was wearing a white colour Kurta Payjama and after pointing out, the secret informer left from there and the accused was intercepted and he was informed about the identities of the team members of the secret information. He was duly informed of his legal right to search the police party and their vehicle and also to be searched in the presence of Gazetted Officer/Magistrate, after explaining him the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 14:10:00 +0530 page no. 13 of 56 meaning of the said terms. The notice u/s 50 of the Act was prepared in duplicate and same was served upon the accused. Thereafter, the bag which the accused was carrying was searched. upon checking his grey colored bag, one steel water bottle, few items of clothing, one small handbag in which daily use articles were found. There were one pair of bathroom slippers and when the contents of the bag were removed and at the bottom, one thaili which was wrapped in newspaper was found. Upon opening the same black colored soft substance was recovered and when the same were cut opened with the help of a cutter, the small portion was checked with the testing kit and it was found to be afeem/opium. The total weight of the recovered contraband was found to be 7.560 kg (along-with the weight of the polythene and the newspaper) and the net weight of opium was found to be 7.460 kg. IO PW2 prepared two samples of 50 grams each and they were put in transparent dibbi and were wrapped back with the help of doctor tape and they were sealed with the seal of 'KB'. The remnant recovered contraband was placed in a plastic jar along-with the newspaper in which it was found wrapped and same was also sealed. All of them correctly identified the case property at the time of their examination in chief.
(9.4.1) PW 20 is ACP Hridya Bhushan who is the then SHO PS Special Cell and he has deposed that on 28.08.2015 while he was working as SHO PS Special Cell, Lodhi Colony, Ct. Devender Kumar came to his office and handed over three sealed parcels, which were all sealed with seal of 'KB' and handed over the duly filled FSL form also containing the said Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:10:10 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 14 of 56 seal of 'KB' with the carbon copy of the seizure memo of the contraband. He inspected the sealed parcels and the documents and also received the rukka which was sent by IO SI Kuldeep Bhoria for registration of the case. Thereafter, he affixed his seal of 'SHO, SPL CELL 1' on all the three parcels and the FSL form. After getting the FIR registered to the duty officer, he placed the FIR Number and other details on the parcels and other documents. Thereafter, he handed over the same to MHCM Sanjeev for depositing them in the malkhana and on his directions the relevant entry was made in register no. 19.
(9.5.1) PW 22 is Addl. DCP Sandeep Bayala (the then ACP Special Cell) who has deposed that on 28.07.2015, while he was working as ACP Special Cell, at about 06.45 PM, HC Hari Chand came to his office and informed him about the secret information and the name of the opium smuggler i.e. Palwinder Singh. The said information was showed to him after being reduced in writing and he had seen the same at 06.45 pm. Thereafter, on the same day at 06.45 pm, Insp. Sanjay Nagpal also telephonically informed him about the said secret information and he immediately directed him to conduct the raid and take appropriate legal action. Thereafter, DD No. 30 was registered by HC Hari Chand and at about 07.30 pm, same was shown to him.
(9.5.2) PW 22 Addl. DCP Sandeep Bayala further deposed that on 29.08.2025, SI Kuldeep Bhoria produced the report u/s 57 of the Act regarding seizure of 7.560 kg of opium from the possession of accused Palwinder Singh, at about 10.45 am and on Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:10:18 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 15 of 56 the same day at about 10.55 am, IO SI Surender produced the report u/s 57 of the Act regarding the arrest of accused Palwinder Singh. Thereafter, accused was produced before him and he interrogated the accused and satisfied himself about the investigation of the case. On the same day at about 11.10 am, the photocopy of the disclosure statement of the accused was produced before him.
(9.6.1) PW 23 is IO SI Surender Singh and he is the second Investigating Officer of the present case. He has deposed that on 28.08.2018, he was working as SI Special Cell, NR and about 10.30 PM, he was assigned the further investigation of the present case. He left his office vide DD No. 35, Ex.PW23/A and reached the spot i.e. 50 meters ahead towards Karnal Bypass Road, Mukarba Chowk, New Delhi and met SI Kuldeep Bhoria and other staff. The accused was produced before him and the sealed case property and other documents were also produced before him. Thereafter, he prepared the site plan Ex.PW2/B at the instance of SI Kuldeep Bhoria and interrogated the accused. Thereafter, he arrested the accused and prepared his arrest memo and personal search memo and recorded his disclosure statement. He prepared the report u/s 57 of the Act qua the arrest of accused Palwinder and produced the same before ACP concerned.
(9.6.2) PW 23 IO SI Surender Singh has further deposed that while the accused was taken on police remand, all possible efforts were made to trace out the co-accused Jagbir @ Jagga and Kyoom, however, they could not be traced. Thereafter, he got the proceedings u/s 52 A of the NDPS Act conducted. He took the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:10:25 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 16 of 56 CDs containing the voice calls conversations/recordings of accused Palwinder and his associates and same were seized by him along-with the transcript. After obtaining the CDR and CAF of the mobile phone involved, he completed the investigation and filed the charge-sheet before this Court.
(9.7.1) PW-16 is Sh. Satvir Singh Lamba and he is the then Ld. MM, who had conducted the proceedings U/s 52 A of NDPS Act. He had deposed that on 01.10.2015, while he was posted as Ld. MM-01, PHC, the application, Ex.PW-16/A was marked to him by Ld. CMM and vide his order of same day, Ex.PW-16/B, the date for the proceedings was fixed for 06.10.2015 and on 06.10.2015, in the presence of the Ld. APP for the State and the accused and his Counsel, he had conducted the proceedings, Ex.PW-16/C after IO/SI Surender Singh has produced the case file and MHC(M) Head Constable Sanjeev Kumar has brought the case property before the Court. The proceedings were captured in photographs by photographer Sh.
Santosh Kumar. He had further deposed that the pullanda Mark A was found weighing 8.1075 Kg and IO took two samples weighing 50 grams each and place them in two small plastic containers and marked them as S-1 and S-2. The remaining case property was sealed in a separate pullanda with his seal of 'SSL'. He had also furnished his certificate U/s 52 A (3) of the Act, Ex.PW-16/D and on his instructions, two sets of photographs were prepared and IO was directed to produce the photograph and CD before him on 09.10.2015. On 09.10.2015, the IO produced the 16 photograph and one CD. The same were put in sealed cover vide order dated 09.10.2015, Ex.PW-16/E. The Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:10:33 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 17 of 56 photographs were exhibited as Ex.PW-16/F-1 to PW-16/F-16 and CD as Ex.PW-16/G. He also deposed that there was typographical error in his report Ex.PW-16/C, wherein the weight was mentioned as 8107.5 Kg, instead of 8.1075 Kg as reflected in the photographs.
Plea of the Accused:
10. After completion of the prosecution evidence, Prosecution Evidence was closed. The statement of the accused was recorded under Section 313 Cr.P.C., 1973 in which he had pleaded his innocence. He had simpliciter denied all the incriminating evidence that came up in the testimonies of the prosecution witnesses. He had specifically stated that no recovery was effected from him and he has been falsely implicated at the instance of the IO and the contraband was planted upon him, after he was picked up by some persons in plain cloths at Roorkie and later on he got to know that the said persons were police officials of PS Special Cell. He was brought back to Delhi and was made to sign certain blank papers, semi-written and written papers without explaining the contents of the documents, since he was not conversant with either English or Hindi.
11. The accused chose to lead Defense Evidence and in support of his defense, he had produced four (04) witnesses:
(11.1.1) DW-1 is Ajit Singh and he is the alternate Nodal Officer of Vodafone Idea Limited. During his testimony, CDR of mobile no. 9888166759 belonging to Smt. Simarjeet, W/o Digitally signed by ATUL ATUL AHLAWAT CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 AHLAWAT Date:
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accused Palwinder Singh, for the period between 27.08.2015 to 29.08.2015, which was exhibited as Ex.DW-1/A and certificate u/s 65-B of the Indian Evidence Act was brought on record as Ex.DW-1/B. (11.2.1) DW-2 is Head Constable Raj Kumar and he had produced the original logbook of vehicle bearing registration no.
DL1CM0297 and the entries in the logbook qua the said vehicle were exhibited as Ex.DW-2/A and DW-2/B. (11.3.1) DW-3 is Sub-Inspector Mahesh and he had produced the original logbook of vehicle bearing registration no. DL1CJ7367 and the entry in the logbook qua the said vehicle were exhibited as Ex.DW-3/A. He further deposed that on 28.08.2015, Head Constable Anil had filled the said entry and as per the record, the vehicle in question ran from Special Cell to OPL and then returned back from OPL to Rohini. On the same day, Sub-Inspector Kuldeep also made the entry qua the vehicle run from Special Cell, NR to Karnal Bypass and than to PS Special Cell. From PS Special Cell to office of Special Cell, NR. The vehicle ran for about 62 Km as per the entry made by Sub- Inspector Kuldeep, Ex.DW-3/A. (11.4.1) DW-4 is Surender Kumar and he is the Nodal Officer of Bharti Airtel Limited. He had deposed that no record pertaining to CDR of mobile number 9818281842 dated 28.08.2015 was preserved as the order dated 17.08.2016 was served upon their company.
Digitally
12. I have heard the arguments advanced by Sh. Syed Ubaid ATUL signed by ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:11:10 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 +0530 page no. 19 of 56 Mansoor, Ld. Addl. PP for the State and Sh. Y.K. Saxena, Ld. Counsel for the accused. I have also minutely gone through the evidence brought on record and the other material aspects of the case.
Submissions made on behalf of the State:
13. It has been argued by the Ld. Addl. PP for the State that through the clinching and unimpeachable testimony of the prosecution witnesses, the State has been able to discharge its burden beyond reasonable doubt that a secret information was received by PW-1 Head Constable Hari Chand on 28.08.2015, Ex.PW-1/A regarding accused Palwinder Singh would be traveling to Amritsar, Punjab from G.T Karnal Road Bypass and if the raid is conducted on the same day at about 09:00 PM, he could be apprehended with large quantity of opium.
14. It has been further argued by the Ld. Addl. PP for the State that after informing the then ACP, PW-22 Addl. DCP Sandeep Bayala about the secret information, the said ACP had directed Inspector Sanjay Nagpal to constitute a team and to take further necessary action as per law. The raiding team was constituted and it has come through the testimonies of PW1 HC Hari Chand, PW2 IO SI Kuldeep Bhoria, PW 4 HC Mandeep and PW8 HC Devender that commercial quantity of opium was recovered from the bag which was being carried by the accused Palwinder Singh. Therefore, the prosecution has proved beyond reasonable doubt that on 28.08.2015 at about 08:40 PM, upon receiving of the secret information and upon pointing out of the secret Digitally signed by ATUL CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 ATUL AHLAWAT AHLAWAT Date:
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informer, accused Palwinder Singh was apprehended and from his grey colored bag 7.560 Kg of dark brown blackish substance (gross quantity including the weight of the polythene and newspaper) was recovered. Upon checking with the field testing kit, it came out to be positive for opium.
15. It has been argued by the Ld. Addl. PP for the State that the IO PW-2 SI Kuldeep Bhoria prepared two samples of 50 gm each from the recovered contraband and the sample marked as Mark "S-1" was sent to FSL Rohini for chemical analysis and vide the FSL report 11.12.2015, Ex. PW-10/A, it was found positive for "opium alkaloids i.e. morphine, codeine, narcotine, papaverine and thebaine". The exhibit S1 was found containing 2.274 % morphine. The said report in question was duly proved by PW-10 Dr. Adesh Kumar.
16. It has been argued by the Ld. Addl. PP for the State that conscious possession of the contraband was duly established by the prosecution beyond reasonable doubt through the testimonies of PW1 HC Hari Chand, PW2 IO SI Kuldeep Bhoria, PW 4 HC Mandeep and PW8 HC Devender. The rebuttable presumption of fact as enshrined under section 54 read with section 35 were attracted in the present case and the same could not be rebutted by the accused throughout the trial.
17. Through the testimony of the prosecution witnesses examined in the present case, the prosecution has been able to discharge its burden that all the required compliances, including the compliance of section 42, 50, 55 and 57 of the Act was Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.27 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 14:11:23 +0530 page no. 21 of 56 carried out in the present case. There is sufficient material to establish the search and seizure of the contraband in due compliance of the mandatory provisions of the Act. Therefore, from the totality of the facts and circumstances of the present case, the prosecution has proved beyond reasonable doubt that the accused Palwinder Singh had committed the offence punishable under section 18 (b) of the NDPS Act,1985.
Submissions made on behalf of the Accused:
18. It is submitted by the Ld. Counsel for the accused that the accused has been falsely implicated in the present case and no recovery was effected from his possession. The entire story as put forth before this Court has been concocted by the IO and all the prosecutions formal witnesses have deposed falsely at the behest of the IO. The contraband was illegally planted upon the accused and the independent witnesses were not made to join the investigation. The IO did not get the photography or the videography of the seizure proceedings conducted.
19. It is further submitted by the Ld. Counsel for the accused that the case of the prosecution of suffering from the fundamental flaw which is going to the root of the matter, since the samples which were drawn before the Ld. MM, U/s 52 A of the Act, were not sent to FSL for forensic examination and instead the samples which were drawn on the spot by the IO were sent. The non- compliance of Section 52 A of the Act has created a shadow of doubt on the case of the prosecution and the accused cannot be convicted, since the prosecution could not prove beyond Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 14:11:38 +0530 page no. 22 of 56 reasonable doubt that the case property which was produced before the Ld. MM was the same property which was examined by the FSL Expert.
20. It is further submitted by the Ld. Counsel for the accused that the search and seizure was conducted by the officer i.e. PW- 2 Sub-Inspector Kuldeep Bhoria, in spite of the fact that he was not authorized by the ACP PW-22 Sh. Sandeep Bayala and the necessary authorization was instead given to Inspector Sanjay Nagpal, however the said officer did not conduct the search and seizure and he was not even cited as a prosecution witness. Therefore, the mandatory compliance of Section 41 (2) of the NDPS Act was not done. The entire search and seizure is therefore invalid and the accused cannot be convicted on the basis of the said proceedings, which stood vitiated.
21. It is further submitted by the Ld. Counsel for the accused that the doubt has been created on the entire case of the prosecution, since the mandatory compliance U/s 41(2) and Section 42 of the Act has been rendered doubtful. It has been deposed by PW-1 Head Constable Hari Chand that he handed over the secret information Ex.PW-1/A directly to Inspector Sanjay Nagpal, however, PW-22 Addl. DCP Sh. Sandeep Bayala had deposed that PW-1 Head Constable Hari Chand came directly to his office along-with the said information.
22. It is further submitted by the Ld. Counsel for the accused that the site plan, Ex.PW-2/B is also doubtful since no cut is shown in the said site plan to reflect the road which goes towards Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:11:46 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 23 of 56 G.T. Karnal Road from Rohini side and the leaf/cut was not shown. Furthermore, the exact place from where the accused was allegedly apprehended was also not shown. Furthermore, the rukka prepared by PW-2 Sub-Inspector Kuldeep Bhoria is also not matching the contents of the site plan.
23. It is further submitted by the Ld. Counsel for the accused that two official vehicles were allegedly used by the members of the raiding party to reach the spot and yet their logbook were not filed along-with the charge-sheet. Later during the testimony of DW-2 Head Constable Raj Kumar and DW-3 Sub-Inspector Mahesh that one of the cars had ran 42 Kms on that day while the other car ran 62 Kms, while the starting point and the end point of the journeys of the said cars was same.
24. It is further submitted by the Ld. Counsel for the accused that there has been non-compliance of Section 55 of the Act, since it had come in the testimony of the then SHO, PW-20 ACP Hridya Bhushan that he had put his seal of 'SHO SPL CELL 1' on the pullandas and had also affixed his signatures, however the case property which was produced before this Court during the testimony of PW-1 Head Constable Hari Chand only mentions the seals of the IO and the SHO and the name and signature of the PW-20 was not put to the said witness and instead PW-1 had identified the signature of the SHO, without there being any name of PW-20 ACP Hridya Bhushan.
25. It is further submitted by the Ld. Counsel for the accused that there is no entry in the malkhana register Ex.PW-4/A Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:11:57 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 24 of 56 regarding the withdrawal and re-deposit of the case property on 06.10.2015, i.e. when the proceedings U/s 52 A was conducted before the Ld. MM. Furthermore, in the testimony of second IO PW-23 Sub-Inspector Surender Singh, who allegedly got the proceedings conducted U/s 52 A of the Act and in the testimony of MHC(M) PW-12 ASI Sanjeev, there is no mention of any entry in the Register No. 19 on 06.10.2015. Therefore, serious doubts regarding the chain of custody has been raised and the essential link evidence to rule out tampering has gone missing.
26. It is further submitted by the Ld. Counsel for the accused that the seal movement register was not proved qua the seal of SHO Special Cell on the relevant date. Similarly, the prosecution did not prove the seal movement register about the issuance of the seal of IO PW-2 Sub-Inspector Kuldeep Bhoria.
27. It is further submitted by the Ld. Counsel for the accused that in the road certificate, Ex.PW-2/B and acknowledgment of case acceptance, Ex.PW-4/C, there is no mention about the seal being intact on sample S-1 and the FSL Form. The malkhana register Ex.PW-4/A has no mention of the FSL Form being deposited in the malkhana. Hence the FSL form is not proved in accordance with law. Furthermore, there is no mention of the receipt of FSL Form with sample S-1 or that the seals were intact and tallied with the FSL Form by the concerned FSL Expert, PW- 10 Dr. Adesh Kumar, who had conducted the forensic analysis. Therefore, safe custody of the sample and possibility of tampering being ruled out could not be established by the Digitally signed prosecution. ATUL by ATUL AHLAWAT Date:
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28. It is further submitted by the Ld. Counsel for the accused that the prosecution could not explain the discrepancy in the weight of the contraband as reflected in the panchnama and the subsequent proceedings U/s 52 A of the Act. As per the panchnama, the gross weight of the seized contraband along-with the polythene and the newspaper, it was wrapped in was 7.560 Kg of opium, however it has categorically come in the testimony of Ld. MM PW-16 Sh. Satvir Singh Lamba that the weight of the contraband was 8107.5 grams. Furthermore, as per the case of the prosecution, the sample S-1 which was sent for forensic examination, was of 50 grams, however in the FSL report Ex.PW-10/A the weight of the Ex.S-1 has been mentioned as 66.8322 grams (approximately). Therefore the benefit of the doubts created upon the prosecution's evidence must go to the accused and he deserves to be acquitted in the present case.
Relevant Law and Case Laws:
29. In the background of the above, before discussing the evidence brought on record in the present case, it is pertinent to point out that the accused person can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:12:14 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 26 of 56 is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr", Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
30. Section 3 of the Indian Evidence Act defines "evidence".
The evidence can be broadly divided into oral and documentary.
"Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Rajesh Yadav & Anr. Vs. State of U.P", Criminal Appeal No. 339-340 of 2014, date of decision 04.02.2022.
31. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference. ATUL Digitally signed by ATUL AHLAWAT AHLAWAT Date:
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32. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence".
However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
33. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
34. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:12:29 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 28 of 56 Section 3, in the absence of any express bar.
35. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
36. The word "Prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
37. The aforesaid provision also indicates that the court is Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:12:37 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 29 of 56 concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domaine.
38. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras" , 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.27 14:12:46 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 +0530 page no. 30 of 56 categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted".
Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:12:55 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 31 of 56 the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:13:02 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 32 of 56 courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
Appreciation of Evidence:
39. Section 8 of NDPS Act,1985 completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that stoo in the manner as prescribed by the Act. This section reads as under:
"No person shall ATUL Digitally signed by ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:13:10 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 33 of 56
(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 is mine).
40. As per the aforementioned Section 8, possession of all narcotic drugs is prohibited. The term "narcotic drugs" is defined in Section 2(xiv) of the Act as under:
Digitally signed by ATUL ATUL AHLAWAT
AHLAWAT Date:
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"(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;"
41. As per the definition, 'narcotic drugs' includes manufactured drugs. Therefore, drug containing diacetylmorphine, commonly known as heroin is included in the said definition and the possession of the same is prohibited by Section 8 of NDPS Act,1985.
42. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2 (xxiiia) & 2 (viia), as under:
"Section 2 (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;"
Section 2 (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."
43. The notification specifying small quantity & commercial quantity vide SO 1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'opium'. As per the said notification, the small quantity for opium is "25 grams" and commercial quantity is "2.5 Kg".
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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44. In order to prove the charges u/s. 18 (b) of the NDPS Act, 1985, 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 a "opium" as defined u/s 2 (xv) of the Act.
(4) That the quantity of the contraband was more than the commercial quantity, for it to fall under Section 18 (b) of the Act.
45. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act,1985. 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. ATUL Digitally signed by ATUL AHLAWAT Date: AHLAWAT 2025.11.27 14:13:30 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 36 of 56
46. In "State of Punjab vs. Balbir Singh", (1994) 3 SCC 299, the Hon'ble Apex Court considered the scheme of the Act as under:
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a Digitally signed by ATUL CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 ATUL AHLAWAT AHLAWAT Date:
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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 along with 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 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 14:13:49 +0530 page no. 38 of 56 prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate........ Section 51 is also important for our purpose. ....... This is a general provision under which the provisions of Code of Criminal Procedure, ("Cr. PC" for short) are made applicable to warrants, searches, arrests and seizures under the Act. Section 52 lays down that any officer arresting a person under Sections 41 to 44 shall inform the arrested person all the grounds for such arrest and the person arrested and the articles seized should be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer-in-charge of the nearest police station, as the case may be and such Magistrate or the officer to whom the articles seized or the person arrested are forwarded may take such measures necessary for disposal of the person and the articles. This Section thus provides some of the safeguards within the parameters of Article 22(1) of the Constitution of India. In addition to this, Section 57 further requires that whenever any person makes arrest or seizure under the Act, he shall within forty-eight hours after such arrest or seizure make a report of the particulars of arrest or seizure to his immediate official superior. This Section provides for one of the valuable safeguards and tries to check any belated fabrication of evidence after arrest or seizure."
47. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act, 1985 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 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:13:57 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 39 of 56 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.
48. It was held by the Hon'ble Apex Court in "Gaunter Edwin Kircher Vs The State of Goa" (1993) 3 SCC 145 that the provisions of the NDPS Act, 1985 are very stringent, hence, the extent of burden of proof that the prosecution has to meet is that it has to prove the foundational facts beyond reasonable doubt and the said burden is very onerous. More serious the offence, stricter the degree of proof.
Receipt of Secret Information and constitution of the raiding team :
49. It has come in the testimony of PW-1 Head Constable Hira Chand that the secret information was received by him on 28.08.2015 and same was reduced by him into writing. Thereafter, he handed over the information to Inspector Sanjay Nagpal, who than discussed the information with the concerned ACP, Special Cell, Northern Range. He did not depose that he had directly went to the office of ACP concerned and handed over the information to the said officer.
50. However, when the concerned ACP stepped into the witness box as PW-22, he had contradicted the PW-1, wherein he had deposed that on 28.08.2015 that PW-1 Head Constable Hari Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2025.11.27 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 14:14:05 +0530 page no. 40 of 56 Chand came to his office and informed him about the secret information and the said information was showed to him by PW- 1, after it was reduced in writing. The PW-22 had specifially deposed that he had seen the information Ex.PW-5/A at 06:45 PM. He further deposed that at 06:45 PM itself, he received a telephonic call from Inspector Sanjay Nagpal, about the said secret information.
51. As per the testimony of PW-22 Addl. DCP Sh. Sandeep Bayala, he had given the authorization to conduct the raid and take appropriate action to Inspector Sanjay Nagpal, wherein he had deposed that 'On the same day at about 6.45pm, Insp Sanjay Nagpal telephonically informed about the afore-said secret information. I immediately directed him to conduct the raid and take appropriate legal action'. He further identified his own signature and the signatures of PW-1 Head Constable Hari Chand and Inspector Sanjay Nagpal on both the secret information Ex.PW-5/A and the DD No. 30, Ex.PW-5/B. Therefore, as per his categorical testimony, he had authorized Inspector Sanjay Nagpal to conduct the search and seizure proceedings and it was Inspector Sanjay Nagpal himself, who was authorized U/s 41 (2) of the Act and on the basis of said authorization, he would had all the powers U/s 42 of the Act in view of the mandate U/s 41(3) of the Act.
52. Although, in the present case, the search and seizure proceedings were not conducted by Inspector Sanjay Nagpal and same were conducted by PW-2 Sub-Inspector Kuldeep Bhoria. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:14:14 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 41 of 56 The said officer was never authorized by the concerned ACP, PW-22. There is no document on record to show that he was authorized U/s 41 (2) of the Act. He had himself deposed at the time of his examination-in-chief that 'Insp. Sanjay Nagpal instructed me to constitute a raiding party for taking up necessary legal action in this regard'. For reasons best known to the prosecution, the official who was authorized to conduct the raid and to take appropriate legal action was never made a prosecution witness. Therefore, the most essential link of the entire case of the prosecution has vanished. The mandatory compliance of Section 41 and 42 of the Act has gone missing, since the investigating officer PW-2 Sub-Inspector Kuldeep Bhoria did not possess the valid authorization to effect the seizure. The authorization was instead given to some other officer, while the seizure was effected by PW-2. Therefore, the mandatory requirement of Section 41 and 42 are not met, since it was not a case of chance recovery and the interception took place upon receipt of the secret information and assembly of the raiding team. Therefore, the entire seizure has stood vitiated. Reliance is placed on the decision of the Hon'ble High Court of Delhi in 'DRI v. Manjinder Singh', Criminal L.P. 310/2013, date of decision 23.01.2014 and the law laid down by the Hon'ble Supreme Court of India in 'State of Punjab v. Balbir Singh' AIR 1994 SC 1872.
53. The documents relied upon by the prosecution are also full of doubts, since it was deposed by the ACP concerned, PW- 22 Addl. DCP Sh. Sandeep Bayala that he had seen the ittala, Ex.PW-5/A and the DD No. 30, Ex.PW-5/B on 28.08.2015 at ATUL Digitally signed by ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:14:21 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 +0530 page no. 42 of 56 06:45 PM and 07:30 PM, respectively. When PW-22 entered into the witness box, he had deposed that at 06:45 PM, Head Constable Hari Chand himself came to his office and submitted the ittala, however, Inspector Sanjay Nagpal had telephonically called him at the very same time and informed about the same information. However, It came in the testimony of PW-5 ASI Satender Kumar that while he was working as SO to ACP, Head Constable Hari Chand submitted the ittala, forwarded by Inspector Sanjay Nagpal. On the same day, Head Constable Hari Chand again went to the office of ACP, Special Cell and produced the DD No. 30, which was shown to him at 07:30 PM.
54. The raiding team constituted, comprised only of the members who were officers of Delhi Police and posted at PS Special Cell. No independent witness had joined the investigation. The IO did not make any efforts to get the photography and the videography of the seizure proceedings, therefore, serious doubts are created on the entire seizure proceedings. Reliance is placed on the decision of the Hon'ble Supreme Court of India in "Shafhi Mohammad Vs. State of Himachal Pradesh" 2018 (1) SC Cr. R. 473.
Recovery of the contraband, chain of custody and proceedings u/s 52A
55. As per the case of prosecution, the contraband in question i.e. 7.560 Kg of opium was recovered from the bag which was carried by accused Palwinder Singh. The IO PW-2 Sub-Inspector Kuldeep Bhoria had conducted the seizure proceedings, Ex.PN- ATUL Digitally signed by ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:14:29 +0530CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 43 of 56 1/8B, the IO took out two samples of 50 gram each and they were converted into two pullandas, after keeping them in see through plastic dibbis and were sealed with the doctor tape. They were marked as Mark S-1 and S-2. The remaining opium weighing 7.460 Kg was kept in another plastic see through jar and after converting it into a pullanda, it was marked as Mark A. The samples were sealed with the seal of the IO i.e. 'KB' and the FSL form was filled up and seal of the IO affixed thereon as well. The compliance U/s 55 of the Act was then done and the then SHO PW-20 ACP Hridya Bhushan had affixed his seal of 'SHO SPL CELL 1' on the said sealed parcels and on the FSL form. Thereafter, the details of the case were filled after the FIR was registered and he handed over the parcels, FSL form, seizure memo carbon copy to the MHC(M) PW-12 ASI Sanjeev. Thereafter, ASI Sanjeev deposited the same in the malkhana and made the entry in register no. 19 at serial no. 2626.
56. As per the FSL report, Ex.PW-10/A and the RC and the FSL acceptance form, the case property was received at FSL, Rohini along-with the memo no. 3648/ACP/Special Cell/Northern Range on 02.09.2015. The said fact is duly mentioned in the FSL report Ex.PW-10/A and in the details of the parcels and exhibit, it was duly mentioned that the said parcel contained the seal of 'KB' and seal of 'SHO SPL CELL 1'. However, the weight of the sample S-1 has now increased from 50 grams to 66.8322 grams and no explanation has come from the prosecution regarding the said discrepancy.
57. As per the case of the prosecution, the proceedings U/s 52 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:14:38 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 44 of 56 A before the Ld. MM, PW-16 Sh. Satvir Singh Lamba were duly conducted on 06.10.2015, in the presence of IO PW-23 Sub- Inspector Surender Singh, PW-12 MHC(M) Sub-Inspector Sanjeev Kumar, the accused and his counsel. Therefore, prior to conducting the proceedings before the Ld. MM U/s 52 A of the Act, the samples collected on the spot by the IO were already sent to FSL for forensic examination. Therefore, the entire proceedings before the Ld. MM were merely an eyewash. No explanation has been offered by the prosecution regarding the said blunder committed by the investigating agency.
58. Section 52-A of the Act was inserted vide an amendment on 29.05.1989 with the intention of laying a procedure for effective management of the seized contraband substances. In this endeavor, S.O. no. 1 of 88 dated 15.03.1988; S.O. no.2 of 88 dated 11.04.1988; S.O. no. 1 of 89 dated 13.06.1989 and the notifications dated 10.05.2007 and 16.10.2015, were issued. These standing orders were later repealed after the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022 came into force. The said 2002 rules have now consolidated the entire framework and procedure to be followed.
59. The scope of Section 52-A of the Act was extended to serve the broader purpose of strengthening the evidentiary framework under the Act and to enhance the credibility and reliability of evidence presented during trial. However, the breach or deviation in the procedure does not render the process carried out to be illegal and it is to be treated as mere irregularity.
The non compliance of Section 52-A cannot be the ground to Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:14:46 +0530
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 45 of 56 acquit the accused, if there is sufficient material to establish the search and seizure of the contraband. Reliance is placed upon the decision of the Hon'ble Apex Court in "NCB Vs Kashif",2024 SCC OnLine SC 3848.
60. In "Khet Singh Vs UOI" (2002) 4 SCC 380, the Hon'ble Supreme Court had held that in certain circumstances, the investigating agency may not be able to follow the guidelines to the letter, and due to such procedural irregularity, the other evidence collected will not become inadmissible and the Trial Court has to consider all the circumstances and find out whether any serious prejudice is caused to the accused or not. Reliance is also place upon "State of Punjab Vs Makhan Chand", (2004) 3 SCC 453.
61. The non compliance of section 52-A may be fatal to the case of the prosecution, only if it goes to the root of the matter. Section 52-A is only a procedural provision and does not lay down the evidentiary rules for proving seizure or recovery, nor does it dictate in the manner in which the evidence is to be led during the trial. It is the general rules of evidence, as enshrined in the Indian Evidence Act, 1872 that governs how the seizure and recovery may be proved.
62. Section 52-A (4) created a deeming fiction wherein it creates a new form of primary evidence. However, it does not imply that the other evidence is original is excluded as primary evidence. In absence of compliance of the section 52-A of the Act, the Court cannot simply overlook other cogent evidence in Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:14:53 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 46 of 56 the form of seized substance itself and the testimonies of the witnesses examined. Reliance is placed upon the decision of Hon'ble Apex Court in "Bharat Aambale Vs. The State of Chhattisgarh", Criminal Appeal No. 250/2025 dated 06.01.2025, Neutral Citation, 2025 INSC 78.
63. As far as the burden of proof of non-compliance of the said provision, mere assertion of the accused that there has been non- compliance is not sufficient. The initial burden will always be on the accused to show the non-compliance and only when he is able to discharge it by proving it on preponderance of probabilities, then only the onus shall shift to the prosecution to prove beyond reasonable doubt through cogent evidence that such non-compliance did not affect the case of the accused persons and they cannot be acquitted only on the said ground of Section 52 A proceedings not being conducted before the concerned Court of Ld. Magistrate. However, in the present case, the samples which were drawn by the IO on the spot were sent to FSL and the samples drawn before the Ld. MM were never sent for forensic examination. Therefore, in the considered opinion of this Court, the samples sent to FSL were not the representative samples, since the sanctity of the case property was completely lost and the entire trial against the accused has vitiated.
64. Furthermore, the malkhana register entries, Ex.PW-4/A and the testimony of the MHC(M) PW-12 ASI Sanjeev Kumar is completely silent on any entry in the malkhana register regarding the case property being taken out from the malkhana on 06.10.2015 or that the samples which were drawn before the Ld. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:15:03 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 47 of 56 MM were ever deposited back in the malkhana. The further discrepancy in the weight of the pullanda Mark A, between the seizure memo and the proceedings U/s 52 A, wherein the substance was found to be 8.1075 Kg, instead of 7.560 Kg and the discrepancy between the weight of the sample Ex.S-1, reflected in the seizure memo as 50 grams and reflected in the FSL report Ex.PW-10/A as 66.8322 grams has raised serious doubts upon the integrity of the entire process and doubt has been created. The entire material placed on record as adduced by the prosecution, both oral and documentary does not inspire any confidence with regard to recovery, as well as conscious possession of the contraband. Therefore, no resort to the statutory presumption U/s 54 of the Act could be drawn in the present case.
Presumption u/s 54 and 35 of the Act:
65. Established jurisprudence dictates that, once possession is demonstrated, the burden of proof shifts to the individual asserting a lack of conscious possession or awareness of concealment. Section 35 of the Act codifies this principle through a statutory presumption in law. Similarly, Section 54 permits a presumption arising from the possession of illicit items. It is incumbent upon the accused to substantiate his claim of either unawareness or absence of conscious possession of contraband.
Hon'ble Apex Court in "Mohan Lal Vs. State of Rajasthan"
(2015) 6 SCC 222 dealt with this aspect in detail and held as under: Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:15:12 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 48 of 56 "12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
XXXXX Digitally signed
by ATUL
AHLAWAT
ATUL
AHLAWAT Date:
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16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:15:27 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 50 of 56 out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused- Appellant cannot take the plea that he had committed an offence Under Section 9 of the Opium Act and not Under Section 18 of the NDPS Act."
66. In "Noor Aga v. State of Punjab and Anr." (2008) 16 SCC 417, the Hon'ble Supreme Court noted Section 35 of the NDPS Act,1985 which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act,1985 which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
67. Furthermore, the Hon'ble Supreme Court, in "Sardul Singh Vs. State of Haryana" (2002) 8 SCC 372, discussed the approach the court should take when analyzing the evidence, as Digitally under:
signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:15:34 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 51 of 56 "There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seem to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
68. The entire investigation starting from the authorization being defective and the search and seizure conducted by the officer, who was not authorized to carry out the said search and seizure, in spite of the recovery in the present case being based on secret information received in advance and not being the chance recovery. The samples which were drawn before the Ld. MM U/s 52 A of the Act were never sent to FSL for forensic examination and the samples allegedly drawn by the IO on the spot were sent to FSL, even prior to the proceedings being Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:15:41 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 52 of 56 conducted U/s 52 A of the Act. The FSL report having serious discrepancy with respect to the weight of the parcel sent for examination made the matters even worse. The said report, prepared on the analysis of the samples not drawn following the mandatory procedure U/s 52 A of the Act is a waste paper and cannot be read in evidence. Reliance is placed on the decision of Hon'ble Supreme Court of India in 'Mohammed Khalid & Anr. v. The State of Telengana', Criminal Appeal No. 1610/2023, date of decision 01.03.2024, Neutral Citation: 2024: INSC:
158.
Conclusion and Findings:
69. There has been complete non-compliance of Section 41 (2) and Section 42 of the NDPS Act, 1985 in the present case. The search and seizure was conducted by the officer, who was not authorized to conduct the same. The officer who was authorized, was never examined as a prosecution witness.
70. The material discrepancy in the weight of the contra- band, as reflected in the seizure memo and the proceedings conducted before the Ld. MM U/s 52 A of the Act. Furthermore, the material discrepancy in the weight between the sample drawn and the exhibit received at the FSL.
71. There being no entry in the malkhana register qua the case property being taken out on 06.10.2015 i.e. the date of the proceedings conducted before the Ld. MM U/s 52 A of the Act or any entry regarding the case property being deposited back.
Digitally signed by ATUL ATUL AHLAWAT
AHLAWAT Date:
2025.11.27
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CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 53 of 56 Therefore, raising a doubt as to whether the same case property, allegedly recovered from the accused was produced before the Ld. MM or not.
72. The investigating agency sending the sample drawn on the spot by the IO to FSL on 02.09.2015, even prior to the proceedings U/s 52 A being conducted and no explanation offered by the prosecution as to why the samples drawn before the Ld. MM were not sent for examination and why the alleged samples drawn by the IO on the spot were sent instead.
73. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra"
AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P." (1996) 10 SCC 193.
74. The statutory presumption as enshrined u/s 35 and 54 of the Act required the prosecution to prove the foundational facts of conscious possession, prior to the presumption being kicked in, which the prosecution has miserably failed to do so in the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.11.27 14:15:59 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 54 of 56 present case.
75. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam"
(2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
76. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favorable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in "Kali Ram Vs. State of Himanchal Pradesh" AIR 1973 SC 2773.
77. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, this Court is of the view that the evidence brought on record is not worthy of acceptance and there is a shadow of doubt cast upon it. The testimonies of the prosecution witnesses are not of sterling character and the lapses on part of the IO in conducting faulty investigation and non compliance of Section 41(2), 42 and 52A of the Act and the lapses on the part of the prosecution in not proving the necessary links of their case, Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date: 2025.11.27 14:16:05 +0530 CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 55 of 56 has led to only one irresistible conclusion that the prosecution story is not worthy of inspiring any confidence. Hence, it strikes at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Palwinder Singh S/o Sh. Sukhdev Singh is acquitted of the charges for committing the offence punishable u/s 18
(b) of NDPS Act, 1985. Hence, he shall be set at liberty.
78. The case property be disposed of in accordance with the law and the rules prescribed.
79. The accused Palwinder Singh is directed to furnish his bail bonds u/s 437-A Cr.P.C, 1973 within one week from today. All the previous bail bonds/surety bonds except for bail bonds u/s 437-A Cr.P.C 1973. are hereby canceled and the surety(s) stands discharged. The documents furnished by the surety(s) shall be released to them as per rules. The bail bonds u/s 437-A Cr.P.C, 1973 shall remain in force for a period of six months from today.
80. File be consigned to the record room, after due compliance.
Announced in the open court on 27.11.2025 This judgment consists of 56 pages and all of them have been digitally signed by me.
Digitally signed by ATUL ATUL AHLAWAT
AHLAWAT Date: 2025.11.27
14:16:14 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/27.11.2025
CNR No DLND010009182016 FIR No. 50/2015 State Vs. Palwinder Singh PS Special Cell SC No.9147/2016 page no. 56 of 56