Delhi District Court
State vs Ibadul @ Shera on 23 December, 2025
DLSH010077852021 Page 1 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Ibadul @ Shera, S/o Sh. Anver, R/o D-1/795, Bhalswal, J.J. Colony, Tedi Dolatpur, Bhalswa Dairy, Outer North, Delhi. New Address :- E-47/39, Seemapuri, Delhi. ....accused (Sh. Muneesh Kumar Shukla, Advocate for accused) DLSH010077852021 Page 2 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Date of institution : 22.09.2021 Date when Judgment reserved : 15.12.2025 Date of Judgment : 23.12.2025 Final Decision : Convicted JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case as per charge-sheet are that on 27.07.2021 at 8:45 pm at Crematorium Old Seemapuri, near Sunlight Colony, main road, Delhi, accused Ibadul @ Shera was apprehended at the instance of secret informer (who came with ASI Sukhbir) by SI Yogesh Kumar, ASI Lokender, ASI Sukhbir and Ct. Devender upon secret information and found in possession of a polythene kept in the right pocket of lower ( payjama), containing 30 gms red colour powder (smack). On the basis of which, the present FIR was registered U/s 21 NDPS Act. The contraband was seized and accused was arrested. The sampling of the contraband U/s 52A NDPS Act was done and sent to FSL. FSL report dated 25.08.2022 has been received wherein it is mentioned that the samples are containing Diacetylmorphine, 6- Monoacetylmorphine, Acetylcodeine, Morphine, Codeine, Papaverine & Trimethoprim.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 22.09.2021 charge-sheet was filed against accused Ibadul @ Shera U/s 21 NDPS Act.
DLSH010077852021 Page 3 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act CHARGE
3. Vide order on charge dated 09.10.2021, charge U/s 21(b) NDPS Act was framed against accused Ibadul @ Shera.
PROSECUTION EVIDENCE
4. In order to prove the aforesaid charge, the prosecution has examined 16 witnesses.
5. PW-1 Inspector Yogesh Kumar deposed that on 27.07.2021, he was posted as SI in Narcotic Cell, Shahdara. On that day, at around 4:15 pm, ASI Sukhbir telephonically informed this witness that he has received a secret information that one person namely Ibadul @ Shera would go to Anand Vihar via Seemapuri with contraband to supply the same, if raid is conducted he would be apprehended with contraband. After that this witness conveyed the information to Inspector Rakesh Rawat and ACP Sushil Kumar. ACP directed this witness to initiate the proceedings further. This witness made DD No. 5 in this regard which is Ex. PW-1/1 and sent a copy thereof in compliance of Section 42 to ACP through proper channel. This witness took IO kit, weighing machine and fill (field) testing kit and left for Seemapuri Gol Chakkar on his private vehicle and simultaneously, this witness directed ASI Lokender and Ct. Devender to reach there. ASI Lokender, Ct. Devender and ASI Sukhbir with secret informer met this witness at Seemapuri Gol Chakkar. There this witness DLSH010077852021 Page 4 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act verified the information from the secret informer and briefed the staff. Thereafter, this witness constituted a raiding team comprising of ASI Sukhbir, Ct. Devender and ASI Lokender.
It is stated by him that he requested passersby to join the investigation after disclosing them the secret information, but they left citing their reasonable excuses. No notice was served on them due to paucity of time. Thereafter, they laid the trap in front of Shamshan Ghat near Seemapuri Gol Chakkar. At about 8:45 pm, secret informer pointed towards a person who was coming from Seemapuri Gol Chakkar and left the spot. This witness apprehended the said person with the help of raiding team. He made inquiry regarding the secret information from the said person. The said person disclosed his name as Ibadul @ Shera and resident of Bhalswa Dairy, J.J. Colony, Delhi. This witness correctly identified accused in the Court.
It is stated by him that he prepared a notice U/s 50 NDPS Act and served the original notice upon accused and told him about his legal rights before searching by saying that he can get himself searched as well as search the raiding team in the presence of any Gazetted Officer or the Magistrate. This witness explained the same in simple language. Accused stated that he did not want to be searched in presence of any Gazetted Officer or Magistrate and he further stated that he was having smack in his right pocket of wearing lower. The said reply of accused was noted down by ASI Lokender on dictation of this witness at Points X to X1 on the carbon copy of the notice U/s 50 NDPS Act upon accused. The carbon copy of notice U/s 50 NDPS Act is Mark-A. Thereafter, this witness called the ACP on the spot before making search of DLSH010077852021 Page 5 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act accused. ACP came on the spot. He also talked with accused and thereafter in the presence of ACP, this witness carried out the search of accused. This witness found in the right pocket of lower of accused some brown powder in a polythene. The said brown powder was checked in fill testing kit and it resulted as smack. The same was weighed on the weighing machine and it weighed 30 gms. Thereafter, the same was kept in the same polythene and a pullanda was prepared of the white cloth. Thereafter, this witness sealed the said pullanda with his seal of 'YK' and took into possession vide seizure memo which is Ex. PW-1/2. Thereafter, ACP left from the spot. This witness handed over the seal to ASI Lokender vide handing over memo of seal Ex. PW-1/3. Thereafter, this witness prepared rukka and handed over it to Ct. Devender alongwith a direction to hand over rukka to DO for registration of FIR and case property with copy of seizure memo to SHO Seemapuri for compliance of Section 55 NDPS Act. The rukka is Ex. PW-1/4.
It is stated by him that after 1:00-1:15 hours, SI Pankaj Tomar alongwith Ct. Devender came on the spot. SI Pankaj Tomar was assigned further investigation of the case. This witness handed over documents to SI Pankaj Tomar and apprised him the facts of the case. This witness also handed over accused to SI Pankaj Tomar. SI Pankaj Tomar also made inquiry from accused. SI Pankaj Tomar prepared site plan at instance of this witness. SI Pankaj Tomar inserted the FIR number and other details on the documents which this witness had handed over to him. Thereafter, SI Pankaj Tomar arrested accused and prepared arrest memo which is Ex. PW-1/5. SI Pankaj Tomar conducted personal search of accused and recovered original notice U/s DLSH010077852021 Page 6 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act 50, one purse containing some currency and one mobile phone. Personal search memo is Ex. PW-1/6. SI Pankaj Tomar also recorded disclosure statement of accused in presence of this witness which is Ex. PW-1/7. Thereafter, they all came to P.S. Seemapuri. This witness took back his seal from ASI Lokender. IO recorded statement of this witness and other raiding team members at Police Station.
It is stated by him that on 28.07.2021, he prepared a report U/s 57 NDPS Act regarding seizure and recovery of contraband and sent it to Sr. Officers through proper channel. The report U/s 57 is Ex. PW-1/8.
MHC(M) has produced one yellow envelope having Mark A1 and the envelope was having the details of the present case and the seal of FSL AY DELHI. On the top of the envelope SFSL DLH/8291/CHEM/2757/21 was written from black marker. 3557/21 was also written from green marker. The seal was duly intact. Envelope was opened with the permission of the Court and found containing one plastic jar which was wrapped with doctor tape and having the stamp of Ld. MM with details of present case as the sampling has been done before the Magistrate. The seal was duly intact. The said jar was opened and found containing mehroon colour powder substance. On seeing the same, this witness has correctly identified the same and submitted that the said powder was recovered from the possession of accused. The powder with jar is Ex. P-1 (Colly).
MHC(M) has produced another plastic transparent jar having Mark A2. The plastic jar was wrapped with doctor tape and having the stamp of Ld. MM with details of present case as the sampling has been done before the DLSH010077852021 Page 7 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Magistrate. The seal was duly intact. The said jar was opened and found containing mehroon colour powder substance. On seeing the same, this witness has correctly identified the same and submitted that the said powder was recovered from the possession of accused. The powder with jar is Ex. P-2 (Colly).
MHC(M) has produced another plastic transparent jar having Mark A. The plastic jar was wrapped with doctor tape and having the stamp of Ld. MM with details of present case as the sampling has been done before the Magistrate. The seal was duly intact. The said jar was opened and found containing one piece of cloth upon which details of present case dated 27.07.2021 and DD No. 5 written by SI Yogesh. Jar also contains one tied transparent polythene which contains some mehroon colour solid substance. On seeing the same, this witness has correctly identified the same and submitted that the said powder was recovered from the possession of accused. The powder with jar, polythene and piece of cloth are Ex. P-3 (Colly).
MHC(M) has produced one white polythene without any seal and details of the present case. It is submitted by the MHC(M) that the same has been used by him for the safety of the case property. The said polythene contain the personal search articles i.e. golden colour Samsung Duos, one black colour purse containing Rs. 1,010/- (new currency) and some piece of papers, original notice U/s 50 NDPS Act and one mehroon and cream colour handbag upon which Rattan Lal Diamond Jewellers Pvt. Ltd., Kingsway Camp, Delhi, was written, were recovered from the personal search of accused. On seeing the same, this witness submitted that these articles were recovered from the DLSH010077852021 Page 8 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act personal search of accused. All the personal search articles are Ex. P-4 (Colly) and original notice U/s 50 NDPS Act is Ex. PW-1/9 bearing the signature of this witness at Point-A. During his cross-examination on behalf of accused, it is denied by him that accused has been falsely implicated due to his quarrel with neighbour in the locality. It is stated by him that ACP has not given direction in writing to him to conduct the raid. It is stated by him that he made DD No. 5 at around 4:35 pm. It is admitted by him that public persons were passing through the road where aforementioned officials met him. It is stated by him that he reached the spot at around 5:30 pm. It is stated by him that the secret informer pointed out towards accused from a distance of about 40-50 meters. It is stated by him that all of them apprehended accused together who was coming alone. It is stated by him that ACP came at the spot at around 9:15-9:30 pm in a government vehicle and accompanied by his driver and operator. It is stated by him that he has not noticed any CCTV camera at the spot. It is admitted by him that seizure proceedings were neither photographed, nor videographed. It is stated by him that he prepared rukka at around 12:00 in the midnight and he finally left the spot at around 4:00-5:00 am.
6. PW-2 ASI Lokender deposed that on 27.07.2021, he was posted as ASI in Narcotic Cell, Shahdara. On that day at around 11:00 am, he alongwith Ct. Devender left for patrolling in the area of District Shahdara. During patrolling, this witness received a telephonic call from SI Yogesh and he informed this witness that SI Sukbir has received a secret information that one DLSH010077852021 Page 9 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act person will sell smack and at around 8:30 pm, he will be coming from the side of Seemapuri and will go towards Anand Vihar and if raided, he can be apprehended. SI Yogesh instructed this witness and Ct. Devender to reach Seemapuri. When they reached Seemapuri, SI Sukhbir alongwith one secret informer met them at Seemapuri Gol Chakkar. After some time, SI Yogesh also came there and he verified the information from the secret informer and briefed them.
After service of notice U/s 50 NDPS Act on accused, SI Yogesh called the ACP on the spot before making search of accused. ACP Sushil Kumar came at the spot. He also talked with accused and thereafter in the presence of ACP, SI Yogesh carried out the search of accused and he found in the right pocket of lower of accused some brown powder in a polythene. The said brown powder was checked in field testing kit and it resulted as smack. The same was weighed on the weighing machine after putting the same on paper and it weighed 30 gms. Thereafter, SI Yogesh kept the same in a polythene and a pullanda was prepared of the white cloth. Thereafter, SI Yogesh sealed the said pullanda with his seal of YK and took into possession vide seizure memo which is already Ex. PW-1/2. Thereafter, ACP left from the spot. Seal was handed over to this witness after use and the seal handing over memo was prepared by SI Yogesh and the same is already Ex. PW-1/3.
It is further stated by him that Ct. Devender was instructed by SI Yogesh to hand over the pullanda and copy of seizure memo to SHO concerned and the rukka to the Duty Officer.
It is further stated by him that at about 1:15 am, SI Pankaj Tomar DLSH010077852021 Page 10 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act alongwith Ct. Devender and one other Constable whose name he does not remember now came on the spot. SI Pankaj Tomar was assigned further investigation of the case. SI Yogesh handed over documents to SI Pankaj Tomar and apprised him the facts of the case. SI Yogesh also handed over accused to SI Pankaj Tomar from him. SI Pankaj Tomar also made inquiry from the accused and put the FIR numbers on the documents which were prepared by SI Yogesh. SI Pankaj Tomar prepared site plan at the instance of SI Yogesh. Thereafter, SI Pankaj Tomar arrested accused and prepared arrest memo. Same is already Ex. PW-1/5. SI Pankaj Tomar conducted personal search of accused and the personal search memo was prepared, same is already Ex. PW-1/6. In the personal search of accused, one original notice U/s 50, Rs.1010/-, one purse and one mobile phone were recovered. Thereafter, they all came to the P.S. Seemapuri where statements were recorded by SI Pankaj Tomar.
It is further stated by him that the case property already Ex. P-1 (Colly), Ex. P-2 (Colly), Ex. P-3 (Colly) and Ex. P-4 (Colly) have already been opened and exhibited in the testimony of PW-1 Inspector Yogesh. The Ld. Defence Counsel does not dispute the identity of the case property. Hence, the production of case property was dispensed with.
On all other aspects, he deposed on the same lines as deposed by PW-1 Inspector Yogesh Kumar.
During his cross-examination on behalf of accused, it is denied by him that no notice U/s 50 NDPS Act was served upon accused and he has been falsely implicated.
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7. PW-3 SI Sukhbir deposed that on 27.07.2021, he was posted as ASI in Narcotic Cell, Shahdara. On that day at around 4:00 pm, he was present at Seemapuri Gol Chakkar and at that time he made a call to SI Yogesh regarding one secret information stating that one person will sell smack and at around 8:30 pm, he will be coming from the side of Seemapuri and will go towards Anand Vihar and if raided, he can be apprehended and the secret informer is with him. After some time ASI Lokender and Ct. Devender also came there. Thereafter SI Yogesh also came there alongwith IO kit and weighing machine. After that this witness briefed SI Yogesh about the secret information and secret informer also met him. After some time, SI Yogesh also verified the above-said information from the secret informer and briefed them.
On all other aspects, he deposed on the same lines as deposed by PW-1 Inspector Yogesh Kumar and PW-2 ASI Lokender.
This witness thoroughly cross-examined on behalf of accused.
8. PW-4 ASI Vishesh Pal deposed that on 27.07.2021 he was working as Duty Officer in Narcotic Cell, Shahdara. He has brought original DD register. He made DD No.4 regarding departure of ASI Sukhbir, ASI Lokender and Ct. Devender which is in his (this witness's) handwriting. Copy of DD No.4 dated 27.07.2021 is Ex. PW-4/A (OSR). Copy of DD No.5 dated 27.07.2021 is already Ex. PW-1/1 (OSR).
During his cross-examination on behalf of accused, it is denied by him that the DD entries are ante-dated and ante-timed.
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9. PW-5 HC Raj Kumar deposed that on 28.07.2021, he was working as MHC(M) at P.S. Seemapuri. On that day at about 2:30 am SHO/ Inspector Padam Singh Rana called this witness in his office and handed over to this witness one sealed parcel and carbon copy of seizure memo on which the SHO has already put the FIR Number and his signatures. The pullandas were already sealed with the seals of YK and RK. This witness made entry in register no.19 at serial no. 952/3557 which is Ex. PW-5/A (OSR). Inspector Padam Singh Rana also countersigned the entry in register no.19. On the same day, SI Pankaj Tomar deposited personal search articles of the accused in the maalkhana. This witness made entry vide the same serial number in this regard in register no.19.
It is stated by him that on 23.08.2021, he got issued weighing machine and sealing material from HAG Branch. He took out the sealed parcels of the present case. He accompanied SI Pankaj Tomar, photographer Babloo to Karkardooma Courts where Ld. MM conducted the sampling proceedings. Accused was produced through Webex. On the direction of Ld. MM two samples were taken out from the parcel containing contraband which were marked as A1 and A2 and the parcel containing remaining contraband was marked as A. The parcels were sealed with the seal of MM. The proceedings were photographed by Babloo. SI Pankaj Tomar obtained the copy of order of Ld. MM regarding proceedings U/s 52A NDPS Act. Thereafter, they came back to the Police Station and this witness deposited the sealed parcels at the maalkhana.
It is stated by him that on 25.08.2021 on the directions of SHO, this witness handed over one sealed parcel sealed with the seal of MM and sample DLSH010077852021 Page 13 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act seal of MM to Ct. Jitender to be deposited at FSL vide RC No. 190/21/21. After depositing the same, Ct. Jitender came back and handed over acknowledgment of FSL to this witness. The copy of RC No. 190/21/21 is Ex. PW-5/B and acknowledgment of FSL is Ex. PW-5/C. It is stated by him that till the time the case property was in his possession, it has not been tampered with.
10. PW-6 HC Devender deposed that on 27.07.2021, he was posted as Constable in Narcotic Cell, Shahdara. On that day ASI Lokender received a telephonic call from SI Yogesh and he informed ASI Lokender that ASI Sukhbir has received a secret information that one person who is carrying smack will pass through Seemapuri roundabout and go towards Anand Vihar at around 8:30 pm. He can be apprehended. SI Yogesh instructed ASI Lokender and this witness to reach Seemapuri Gol Chakkar. They reached at Seemapuri Gol Chakkar at about 5:15 pm where ASI Sukhbir alongwith one secret informer met them. After some time, SI Yogesh also came there and he verified the information from the secret informer and briefed them.
It is stated by him that SI Yogesh requested 4-5 passersby to join the investigation after disclosing them the secret information, but they left citing their reasonable excuses. No notice was served on them due to paucity of time. Thereafter, they laid the trap in front of Shamshan Ghat, Sunlight Colony, Seemapuri.
It is stated by him that at about 8:45 pm, one person who was carrying red colour bag in his hand was seen coming from the side of old DLSH010077852021 Page 14 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Seemapuri Gol Chakkar and secret informer gave the signal that the said person is the same who is carrying the smack. Thereafter, secret informer left the spot. Thereafter, the above-said person was apprehended with the help of raiding team members. SI Yogesh made inquiry regarding the secret information from the said person. He disclosed his name as Ibadul @ Shera. This witness correctly identified accused in the Court.
It is stated by him that SI Yogesh prepared a notice U/s 50 NDPS Act and served the original notice upon accused and told him about his legal rights before searching by saying that he can get himself searched after taking search of the raiding team. He was also apprised that if he wishes, he can be searched in the presence of any Gazetted Officer or the Magistrate or that he can be taken to nearest Gazetted Officer or Magistrate for the purpose of his search. SI Yogesh explained the meaning of Gazetted Officer and Magistrate to accused in simple language. Accused stated that he did not want to be searched in presence of any Gazetted Officer or Magistrate and he further stated that he was having smack in his right pocket of wearing lower. The said reply of the accused was noted down on the dictation of accused at Points X to X1 on the carbon copy of the notice U/s 50 NDPS Act upon accused. The carbon copy of notice U/s 50 NDPS Act is Ex. PW-6/A which bears signature of this witness at Point-C and at Point-D below the written refusal of accused and bears the signature of accused at Points Y and Z. It is stated by him that SI Yogesh prepared rukka and handed over it to this witness alongwith sealed parcel and copy of seizure memo with directions to hand over rukka to DO for registration of FIR and case property DLSH010077852021 Page 15 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act with copy of seizure memo to SHO Seemapuri for compliance of Section 55 NDPS Act. This witness went to P.S. Seemapuri and handed over the rukka to the Duty Officer and sealed parcel & the copy of seizure memo to SHO concerned. SHO, P.S. Seemapuri put the FIR number on copy of seizure memo and sealed parcel and also signed on the same. He put his counter-seal of RK on the parcel and deposited the case property with MHC(M). Thereafter, this witness obtained copy of FIR and original rukka from the Duty Officer and handed over the same to SI Pankaj Tomar. Thereafter, this witness alongwith SI Pankaj Tomar and Ct. Gundeep came back at the spot. SI Pankaj Tomar was assigned further investigation of the case.
The case property already Ex. P-1 (Colly), Ex. P-2 (Colly), Ex. P-3 (Colly) and Ex. P-4 (Colly) has already been opened and exhibited in the testimony of PW-1 Inspector Yogesh. The Ld. Defence Counsel does not dispute the identity of the case property. Hence, the production of case property is dispensed with.
On all other aspects, he deposed almost on the similar lines as deposed by PW-1 Inspector Yogesh Kumar, PW-2 ASI Lokender and PW-3 SI Sukhbir.
This witness thoroughly cross-examined on behalf of accused.
11. PW-7 Ct. (now HC) Jitender deposed that on 25.08.2021 he was posted at P.S. Seemapuri as Constable. On that day on the directions of SI Pankaj Tomar, this witness obtained one sealed parcel Mark-A1 from MHC(M) alongwith sample seal vide RC No. 190/21/21 and deposited the same at FSL DLSH010077852021 Page 16 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act for analysis. Thereafter, this witness came back to the Police Station and handed over the acknowledgment of FSL to MHC(M). Copy of RC No.190/21/21 is already Ex. PW-5/B. Copy of acknowledgment of FSL is already Ex. PW-5/C. It is stated by him that till the time the case property was in his possession, it has not been tampered with.
12. PW-8 Ct. (now HC) Gundeep Kumar deposed that on 28.07.2021, he was posted at P.S. Seemapuri as Constable and was on emergency duty. At about 1:40 am, SI Pankaj Tomar called this witness and this witness alongwith SI Pankaj Tomar and Ct. Devender reached Shamshan Ghat, Sunlight Colony where SI Yogesh, ASI Lokender, ASI Sukhbir and accused were found present. SI Yogesh handed over accused to SI Pankaj Tomar. SI Pankaj Tomar prepared site plan at the instance of SI Yogesh. SI Pankaj Tomar arrested the accused vide arrest memo already Ex. PW-1/5 and personally searched him vide personal search memo already Ex. PW-1/6. From the personal search of accused, one original notice U/s 50 NDPS Act, one hand bag containing mobile phone and purse containing Rs. 1,010/- were recovered. SI Pankaj Tomar recorded the disclosure statement of accused already Ex. PW-1/7. After medical examination of the accused, accused was lodged in the lock-up of Police Station. This witness correctly identified accused in the Court.
During his cross-examination on behalf of accused, it is denied by him that the signatures of accused were obtained on blank paper which was later on converted into his false and fabricated disclosure statement.
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13. PW-9 retired SI Narender Singh deposed that on 28.07.2021 he was posted as Reader to ACP, Sub-Division Seemapuri Sh. Mukesh Tyagi. This witness has brought original diary register of the year 2021 of ACP Office, Seemapuri, Delhi alongwith report U/s 57 NDPS Act prepared by SI Pankaj Tomar of FIR No. 358/2021, P.S. Seemapuri. As per record, the report U/s 57 NDPS Act prepared by SI Pankaj Tomar dated 28.07.2021 was received in their office vide diary no.3158 on 28.07.2021. Report was seen and signed by the then ACP Sh. Mukesh Tyagi. Original report U/s 57 NDPS Act was taken on record and the same is Ex. PW-9/A bearing signatures of ACP Sh. Mukesh Tyagi at Point-A. Photocopy of relevant entry no. 3158 of diary register is Ex. PW-9/B (OSR).
During his cross-examination on behalf of accused, it is denied by him that the entry in the register is ante-dated. It is denied by him that no report U/s 57 NDPS Act was received in the ACP Office.
14. PW-10 Sh. Babloo deposed that on 23.08.2021, he was working as a photographer at the photo studio situated at C-439, Old Seemapuri, Delhi. On that day, he accompanied the police to Karkardooma Court where the sampling proceedings were conducted by Ld. MM. This witness took 24 photographs of the proceedings stepwise. After taking print out of the photographs, he submitted two sets of the photographs and one DVD containing the photographs to SI Pankaj Tomar. The photographs are Ex. PW-10/1 to Ex. PW-10/24. The DVD containing the said photographs is Ex. PW-10/A. DLSH010077852021 Page 18 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act
15. PW-11 Inspector (now ACP) Padam Singh Rana deposed that on 28.07.2021, he was posted at P.S. Seemapuri as SHO. At about 1:30 am, Ct. Devender came to his office and handed over to him one sealed parcel sealed with the seal of 'YK' alongwith carbon copy of seizure memo. This witness affixed his counter-seal of 'RK' on the said parcel. After confirming the FIR Number from the Duty Officer, he wrote the same on parcel and copy of seizure memo. He also signed the parcel and copy of seizure memo. He then called the MHC(M) CP alongwith register no.19 in his office and MHC(M) has made entry of all the details in the register no.19 and this witness handed over case property and all documents to MHC(M) CP. This witness also signed at Point-A against the relevant entry in register no.19 which is already Ex. PW-5/A. In this regard, this witness lodged a GD vide no. 11A at about 2:01 am dated 28.07.2021 and same is Ex. PW-11/A. On 28.07.2021, he had also forwarded one report U/s 57 NDPS Act prepared by SI Pankaj Tomar regarding arrest of accused. The said report is already Ex. PW-9/A on the judicial record. Statement of this witness was recorded by the IO.
During his cross-examination on behalf of accused, it is denied by him that no parcel was produced before him by Ct. Devender.
16. PW-12 ASI Rajeev Saxena deposed that on 28.07.2021, he was posted as Reader to ACP office, Operation Cell, Shahdara District, Delhi. He has brought the original diary register of the month of July 2021 of ACP Officer alongwith DD No. 5 as well as original report U/s 57 NDPS Act prepared by SI Yogesh Kumar in the present case, received in their office. DD No. 5 and DLSH010077852021 Page 19 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act original report U/s 57 NDPS Act were taken on record. On 28.07.2021, DD No. 5 dated 27.07.2021 was received in their office vide diary no. 091 and this witness placed the same before ACP Operation Cell Sh. Sushil Tyagi. The said DD is Ex. PW-12/A, bearing signature of ACP at Point-A. On the same day, original report U/s 57 NDPS Act prepared by SI Yogesh Kumar was also received in their office vide diary no. 90 and this witness placed the same before the ACP. The said report is Ex. PW-12/B, bearing signature of ACP at Point-A. He has also brought the original diary register. Copy of entries no. 90 and 91 are Ex. PW-12/C (OSR).
17. PW-13 Retd. ACP Sushil Tyagi deposed that on 27.07.2021, he was posted as ACP, DIU, Shahdara District and was also looking after the work of ACP Operation Cell, Shahdara. On that day, at about 4:15 pm, SI Yogesh telephonically informed this witness about one secret information that one person will come towards Anand Vihar from Seemapuri round-about alongwith smack at about 8:30 pm and can be apprehended, if raided. This witness directed SI Yogesh to appropriate immediate legal action. At about 8:45pm, SI Yogesh informed this witness about the apprehension of one Ibadul @ Shera as per secret information and thereafter, this witness reached the spot i.e. Shamshan Ghat, near Seemapuri round-about, where SI Yogesh and other police staff alongwith accused (this witness correctly identified accused in the Court).
It is stated by him that he introduced himself to accused. He apprised accused about his legal rights that he can take search of police team DLSH010077852021 Page 20 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act prior to his search, but he refused. On directions of this witness, SI Yogesh took search of accused and one polythene bag was recovered from right pocket of his wearing lower which was found containing red color powder. SI Yogesh checked some portion of the powder on field testing kit which gave positive result for heroine. SI Yogesh took out the contraband on a white paper and weighed the same on electronic weighing machine which was found 30 grams. He again put the contraband into the same recovered polythene bag, prepared cloth pullanda and sealed the same with the seal of 'YK'. Seal was handed over to ASI Lokender after using the same. SI Yogesh prepared seizure memo. Thereafter, this witness left the spot after giving necessary directions to SI Yogesh.
It is stated by him that on 28.07.2021, his Reader placed before him DD No. 5 regarding secret information already Ex. PW-12/A which was seen by him and he signed at Point-A. On the same day, his Reader placed before him report U/s 57 NDPS Act prepared by SI Yogesh regarding seizure of contraband already Ex. PW-12/B which was seen by this witness and he signed at Point-A. During his cross-examination on behalf of accused, it is stated by him that SI Yogesh informed him about secret information at about 4:00-4:15 pm telephonically. It is admitted by him that he has not given any written directions to SI Yogesh to conduct raid. It is stated by him that SI Yogesh informed him about 8:00 pm regarding apprehension of accused and he (this witness) reached the spot at about 8:45 pm. It is stated by him that when he reached the spot, SI Yogesh was holding the hand of accused. It is admitted by DLSH010077852021 Page 21 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act him that seizure memo of the contraband does not bear his signature. It is stated by him that he finally left the spot at about 9:30 pm.
18. PW-14 Dr. Adesh Kumar, Senior Scientific Officer, Chemistry, FSL, Rohini, Delhi deposed that he is working at FSL, Rohini since 1999. On 25.08.2021, he was posted as Sr. Scientific Officer (Chemistry) at FSL, Rohini. On that day, one sealed parcel Mark A1 sealed with two seals of M.M in FIR No. 358/21 dated 28.07.2021, U/s 21 NDPS Act, P.S. Seemapuri alongwith specimen seal, forwarding letter, copy of FIR, copy of seizure memo etc. were received in their office from SHO, P.S. Seemapuri vide letter reference no. 2159/SHO/Seemapuri dated 25.08.2021. Same was marked to this witness for chemical examination. The seals were intact and were tallying with specimen seal.
It is stated by him that on opening the parcel Mark A1, it was found containing redish colour powder with granules, weight approx. 19.7 gms with plastic container, seal wax, paper tape and cellotape and it was mark as Ex. A1.
It is stated by him that he analyzed the exhibit between 07.07.2022 to 25.08.2022. On chemical, TLC & GC-MS examination, Ex. A1 was found to contain diacetylmorphine, 6 monoacetylmorphine, Acetylcodeine, morphine, codeine, papaverine and trimethoprim. After the examination the remnants of the exhibit was kept in separate parcel which was sealed with the seal of AY FSL DELHI. He prepared the detailed report bearing no. SFSL DLH/8291/CHEM/2757/21 dated 25.08.2022 which is Ex. PW-14/A (running into two pages) bearing his signature at Points A and B. He submitted his report DLSH010077852021 Page 22 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act in a sealed envelope alongwith the sealed parcels for onward transmission to the forwarding agency.
19. PW-15 SI (now Inspector) Pankaj Tomar deposed that in the intervening night of 27/28.07.2021, he was posted at P.S. Seemapuri, as SI. On that day, he was on night emergency duty. On that day, Ct. Devender of Narcotic Cell, Shahdara District, handed over copy of FIR and original rukka to this witness and thereafter, he alongwith Ct. Devender and Ct. Gundeep of P.S. Seemapuri reached the spot i.e. main road Shamshan Ghat, Sunlight Colony, Old Seemapuri, Delhi where SI Yogesh, ASI Lokender and ASI Sukhbir met this witness alongwith accused Ibadul @ Shera (this witness correctly identified accused in the Court).
It is stated by him that SI Yogesh handed over accused alongwith the documents prepared by him to this witness. This witness mentioned the FIR number on the seizure memo. He prepared site plan at the instance of SI Yogesh which is Ex. PW-15/A. He arrested accused vide arrest memo already Ex. PW- 1/5 and personally searched him vide personal search memo already Ex. PW- 1/6. From the personal search of accused apart from notice U/s 50 NDPS Act, one hand bag, containing one mobile phone (make Samsung) and purse containing Rs. 1,010/- was also recovered. This witness recorded disclosure statement of accused already Ex. PW-1/7. Thereafter, accused was brought back to P.S. Seemapuri and this witness deposited personal search articles with MHC(M). In the afternoon hours, accused was taken to the area of Bhalaswas Dairy for search of source of the contraband at his instance, but no source was DLSH010077852021 Page 23 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act traced. This witness produced accused before the Court and accused was sent to J/C. It is stated by him that he also prepared his report U/s 57 NDPS Act regarding arrest of accused and submitted the same for onward transmission to the ACP, Sub-Division Seemapuri which is already Ex. PW-9/A. It is stated by him that he moved an application to sampling of contraband U/s 52A NDPS Act and the same was conducted on 23.08.2021 by Sh. Mayank Mittal, Ld. MM. Accused was produced before the Court on call of this witness. Photographer Babloo was also present and HC Raj Kumar has brought the case property. On the directions of Ld. MM, the sampling proceedings were conducted and two samples of 05 grams each were drawn from the contraband contained in cloth parcel Mark-A and were kept in two separate plastic boxes. Both the plastic boxes containing the sample and the pullanda containing remaining contraband were sealed with the seal of Court i.e. M.M. Ld. MM also provided his sample seal of MM. The entire proceedings were photographed by photographer Babloo. This witness obtained copy of proceedings U/s 52A NDPS Act. Thereafter, all the three sealed parcels were deposited at the maalkhana. During investigation, this witness sent the sealed parcel containing the sample to FSL for analysis.
It is stated by him that after completion of investigation, he submitted the charge-sheet for trial. After the FSL result was received, he submitted the same before the Court through supplementary charge-sheet.
During his cross-examination on behalf of accused, it is stated by him that Ct. Devender handed over copy of FIR and original rukka to him at DLSH010077852021 Page 24 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act about 2:00 am. It is stated by him that no CCTV camera was found installed near the spot. It is stated by him that he remained present at the spot for about one hour.
20. PW-16 retired SI Somvir Singh deposed that on 28.07.2021, he was posted at P.S. Seemapuri as ASI and was working as Duty Officer from 12:00 midnight to 8:00 am. At about 12:53 am Ct. Devender brought the rukka sent by SI Yogesh Kumar, contents of which were dictated by this witness to the Computer Operator and the FIR was registered bearing FIR No. 358/2021 and computerized copy of FIR was obtained. This witness had handed over copy of FIR and original rukka to Ct. Devender to be handed over the same to SI Pankaj Tomar as investigation was marked to him after making endorsement of this witness on the rukka. The copy of FIR is Ex. PW-16/A (OSR). This witness had made endorsement on the rukka and the same is Ex. PW-16/B. In this regard, certificate U/s 65B Evidence Act is Ex. PW-16/C.
21. During trial, accused admitted the sampling proceedings Ex. AD1 (03 pages/ 03 sheets) conducted by Ld. MM Sh. Mayank Mittal on 23.08.2021 and 24 photographs of sampling already Ex. PW-10/1 to Ex. PW-10/24 (Colly- on 09 sheets) U/s 294 Cr.P.C.
22. No other witness was examined by the prosecution. Thereafter, P.E. was closed vide order dated 18.09.2025.
DLSH010077852021 Page 25 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act STATEMENT OF ACCUSED
23. Statement of accused was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and denied entire prosecution's case. It is stated by him that he was falsely arrested. It is stated by him that the reports are manipulated. It is stated by him that nothing was recovered from him. It is stated by him that he was falsely implicated in the present case at the instance of his erstwhile neighbours who were indulged in business of contraband. Since he had a quarrel with them, they got him falsely implicated in the present case in connivance with police.
He chose not to lead any defense evidence.
FINAL ARGUMENTS
24. This Court has heard the Ld. Additional Public Prosecutor and the Ld. Counsel for the accused and perused the record carefully.
25. It is contended by Ld. Addl. PP for the State that all the procedures as per NDPS Act have been complied with in the present matter at the time of recovery and thereafter. It is contended that 30 gms heroin/ smack from accused was recovered. There is nothing on record to suggest that police officials had any enmity with the accused. Thus, the offence U/s 21(b) NDPS Act is proved beyond reasonable doubt against the accused.
26. Per contra, it is contended on behalf of the accused that accused has been falsely implicated in the present case. It is contended that there is no DLSH010077852021 Page 26 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act videography or photography of the recovery proceedings. No public person joined in the investigation as no recovery was effected from the alleged place and time. It is contended that PW-13 retd. ACP Sushil Tyagi stated in his examination-in-chief that he received phone call from SI Yogesh at 8:45 pm, but in his cross-examination, he stated that he received the call at 8:00 pm and reached the spot at 8:45 pm, while as per PW-1 SI Yogesh Kumar ACP reached the spot at around 9:15-9:30 pm. Thus, story of the police is concocted one.
Legal Requirement to prove the Charges :-
27. Section 21 NDPS Act reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations.
Whoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
(emphasis supplied)
28. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic DLSH010077852021 Page 27 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under :
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
(emphasis supplied)
29. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
30. The term "narcotic drugs" is defined in Section 2(xiv) as under :-
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs;
31. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of DLSH010077852021 Page 28 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act NDPS Act.
32. The term "manufactured drug" is defined in Section 2(ix) of NDPS Act, as under :-
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
(emphasis supplied)
33. "Opium Derivatives" besides other things also means heroin. It is defined in Section 2(xvi) of NDPS Act as under:
(xvi) "opium derivative" means--
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent. of morphine or containing any diacetylmorphine"
(emphasis supplied) DLSH010077852021 Page 29 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act
34. The prosecution would also be required to prove that the quantity of the contraband recovered was of small, intermediate or commercial quantity. The terms "small quantity" and "commercial quantity" are defined in Section 2(xxiiia) & 2 (viia), as under :
"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;
(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette."
35. The notification specifying small quantity & commercial quantity vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial quantity for various Narcotic Drugs & Psychotropic Substances, including 'heroin'. As per entry at serial no.56 in the said notification, the small quantity for Heroin is 5 gms and commercial quantity is 250 gms.
36. In order to prove the charge U/s 21(b) NDPS Act, the prosecution is required to prove the following facts:
(1) That accused was in possession of contraband.
(2) That the possession was in contravention of the provision of
the Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was opium derivative/ heroin. (4) That the quantity of the contraband was intermediate for Section 21(b) NDPS Act.
37. Besides proving the aforesaid facts, the prosecution is also required DLSH010077852021 Page 30 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously. The failure to adhere to the procedure raises a doubt in the mind of the court regarding the manner in which the investigation is carried out, which obviously favors the accused.
38. In State of Punjab Vs. Balbir Singh, 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under :-
"4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such DLSH010077852021 Page 31 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and
57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or an officer of similar superior rank of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government. Such officer, if he has reason to believe from personal knowledge or information taken down in writing, that any offence punishable under Chapter IV has been committed, he may enter into and search in the manner prescribed thereunder between sunrise and sunset. He can detain and search any person if he thinks proper and if he has reason to believe such person to have committed an offence punishable under Chapter IV. Under the proviso, such officer may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting DLSH010077852021 Page 32 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act 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."
39. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the DLSH010077852021 Page 33 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act submissions made by the parties.
40. Besides proving the aforesaid facts, the prosecution is also required to prove that the investigating agency carried out the investigation in compliance with the provisions of NDPS Act. The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation. By adhering to this procedure, the agency demonstrates its commitment to protecting personal liberty, a fundamental right of citizens. This ensures that the search was conducted in a manner that upholds the principles of the judicial system. The credibility of the evidence presented by the prosecution is enhanced when the investigating agency follows the statute scrupulously as held by Hon'ble Bombay High Court in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) : MANU/MH/1838/2002 :-
"In view of the principle that Ceaser's wife must be above-board, the investigating agency has to be consistent with the procedure laid down by law while conducting the search and it has to be above-board in following the procedure by investigating into the crime and if that is done it would assure the judicial mind that by giving importance to the personal liberty a fundamental right of (he citizen, the search was conducted. If that is done, then there would be creditworthiness to such evidence which has been adduced by the prosecution. The investigating agency must follow the procedure as envisaged by the statute scrupulously and failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that laxity on the part of the investigating authority is curbed."
Thus, the failure to adhere to the procedure raises a doubt in the mind of the Court regarding the manner in which the investigation is carried out, which obviously favors the accused.
DLSH010077852021 Page 34 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act
41. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption U/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
42. The Court will now proceed to examine and discuss the various aspects of the case and the relevant pieces of evidence under distinct headings as follows:-
Discussion on the point of compliance of Section 42 or Section 43 of NDPS Act
43. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to record the secret information in writing and send the information so reduced into writing within DLSH010077852021 Page 35 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act 72 hours of its receipt to immediate official superior. However, in the present case, the secret information was received by ASI Sukhbir who was an empowered officer being above the rank of Constable. However, the secret information was not recorded by him in writing, rather he communicated the secret information on phone to PW-1 SI Yogesh Kumar who noted down the same. Thus, requirement of Section 42 NDPS Act qua recording of secret information was not complied with in the present matter, however the same would not vitiate the trial as in the present case contraband was recovered from public place. Since the present case is a case of recovery from public place, hence, the question of compliance of Section 42 NDPS Act does not arise in the facts of this case, rather Section 43 NDPS Act would come into play.
44. Section 43 NDPS Act reads as follows :-
43. Power of seizure and arrest in public place.- Any officer of any of the depart-
ments mentioned in section 42 may -
(a) seize in any public place or in transit, any narcotic drug or psychotropic sub- stance or controlled substance in respect of which he has reason to believe an of- fence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish ev- idence of the commission of an offence punishable under this Act or any docu- ment or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have commit- ted an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such pos- session appears to him to be unlawful, arrest him and any other person in his com- pany.
DLSH010077852021 Page 36 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Explanation. - For the purposes of this section, the expression "public place" in- cludes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
45. PW-3 ASI Sukhbir left the office for the purpose of gathering information qua supply of contraband in District Shahdara vide DD No. 4 dated 27.07.2021 recorded at 11:00 am, this DD has been duly proved on record as Ex. PW-4/A (OSR). Thereafter, at about 4:25 pm he telephonically informed PW-1 SI Yogesh Kumar qua secret information received by him in respect of supply of contraband at around 8:30 pm. PW-1 SI Yogesh Kumar made DD No. 5 dated 27.07.2021 at 4:25 pm in this respect, he also informed PW-2 ASI Lokender and PW-6 Ct. Devender who were also available in the area to reach the spot. He recorded all these facts in DD No. 5 alongwith his departure from the office for the spot. The DD No. 5 has been duly proved on record as PW-1/1 (OSR).
It is deposed by all the members of raiding team that they took position at the place of supply of contraband as per secret information i.e. near Shamshan Ghat, Sunlight Colony i.e. a public road and at around 8:45 pm accused came on spot on foot, on being pointed out by secret informer, he was apprehended and from right pocket of his wearing lower contraband was recovered.
46. In view of the above-stated circumstances, it can be held that provisions of Section 43 NDPS Act have been duly complied with in the present case, as per record.
DLSH010077852021 Page 37 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Discussion on the point of compliance of Section 50 of NDPS Act
47. Section 50 NDPS Act is as under :-
"Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
(emphasis supplied)
48. As per prosecution case, after apprehension of the accused, he was served with mandatory notice under Section 50 of the NDPS Act (carbon copy of the notice is Ex. PW-6/A (also Mark-A), the version of the accused is at Points X to X1 on Ex. PW-6/A and original notice recovered in the personal search of the accused is Ex. PW-1/9). Notice was read over and explained in simple language to accused who stated that he has understood his legal rights, also apprised that he was having smack in his right pocket of wearing lower. It is also stated by him that he does not want to be searched in presence of Gazetted Officer or DLSH010077852021 Page 38 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Magistrate and does not want to take search of the police party. The said reply of accused was noted down by ASI Lokender on dictation of PW-1 SI Yogesh Kumar. Despite refusal of accused to be searched in presence of Gazetted Officer or Magistrate, as abundant caution, PW-13 ACP Sushil Tyagi was called at the spot. On reaching the spot PW-13 ACP Sushil Tyagi, who is a Gazetted Officer, gave his introduction to the accused and also offered search of the police team, but accused refused to take the same. Thereafter, on the instructions of PW-13 ACP Sushil Tyagi, the search of accused was carried out by SI Yogesh Kumar.
Similarly, deposed by PW-1 SI Yogesh Kumar and other members of the raiding party. However, there is a slight contradiction in the testimony of PW-13 ACP Sushil Tyagi as in his examination-in-chief it is stated by him that he received information qua apprehension of accused from PW-1 SI Yogesh Kumar at 8:45 pm, but in his cross-examination he stated that he received the said information at about 8:00 pm. As per PW-1 SI Yogesh Kumar he apprehended the accused at about 8:45 pm and thereafter made phone call to the ACP, similarly deposed by other members of the raiding party, similarly written in the rukka and statements U/s 161 Cr.P.C. of the witnesses. Apparently, this is a minor contradiction in the testimony of the PW-13 ACP Sushil Tyagi. He might have got confused and stated the time of receiving information to be 8:00 pm instead of 8:45 pm in his cross-examination, while in his examination-in- chief he has correctly stated the time of receiving information as 8:45 pm. This minor contradiction does not go to the roots of the case.
DLSH010077852021 Page 39 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act In the bodily search of accused by SI Yogesh Kumar on the instructions of ACP Sushil Tyagi, a polythene was recovered from the right pocket of wearing lower of accused which was found containing 30 gms of heroin.
These facts are corroborated by the testimony of PW-13 ACP Sushil Tyagi who stated that on his instructions SI Yogesh Kumar took the bodily search of accused wherein a polythene was recovered from the right side pocket of wearing lower of accused which was found containing brown colour powder, on testing with field testing kit it was positive for heroin and on weighing it was found to be 30 gms.
It is to be noted that in the present case, personal search of the accused was conducted only as per the instructions and in presence of PW-13 ACP Sushil Tyagi. Thus, in the present case, the personal search of the accused was conducted in presence of Gazetted Officer i.e. PW-13 ACP Sushil Tyagi wherein contraband was allegedly recovered from him.
The testimonies of PW-1 and PW-13 on this aspect are corroborated by PW-2, PW-3 and PW-6 who were also members of the raiding party.
It may be noted that there are no cross-examination of these witnesses as regards the notice under Section 50 NDPS Act given by PW-1 SI Yogesh Kumar to accused Ibadul @ Shera and as regards the response of the accused to the notice, which was recorded on the copy of the notice. The DLSH010077852021 Page 40 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act witnesses were only given some suggestions in their cross-examination which they denied.
49. Based on the testimonies of recovery witnesses, it has been established that accused was duly served with notice U/s 50 NDPS Act before his bodily search was conducted and there was no violation of this mandatory provision.
50. Section 55 NDPS Act has been duly complied with in the present matter as it is stated by PW-6 Ct. (now HC) Devender that after seizure of the contraband SI Yogesh Kumar handed over rukka alongwith sealed parcels and copy of seizure memo to him with instructions to hand over the rukka to Duty Officer and sealed case property/ parcel alongwith copy of seizure memo to SHO, P.S. Seemapuri. On that he went to P.S. Seemapuri where he handed over rukka to Duty Officer and sealed parcel alongwith copy of seizure memo to SHO concerned.
This fact is corroborated by PW-11 Inspector (now ACP) Padam Singh Rana, the then SHO, P.S. Seemapuri who stated that at about 1:30 am Ct. Devender came to his office and handed over to him one sealed parcel sealed with the seal of 'YK' alongwith carbon copy of seizure memo. On that he also affixed his counter-seal of 'RK' on the said parcel. After confirming the FIR Number from the Duty Officer, he wrote the same on parcel and copy of seizure memo. He also signed the parcel and copy of seizure memo. Thereafter, he DLSH010077852021 Page 41 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act handed over the case property and all documents to MHC(M) CP qua which entry was recorded in Register No. 19 bearing his signature at Point-A. The entry is Ex. PW-5/A. He also lodged a GD vide no. 11A at 2:01 am dated 28.07.2021 regarding the said proceedings which is Ex. PW-11/A.
51. Section 57 of the NDPS Act which requires that :-
"Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
52. In the present matter, alleged recovery of contraband was effectuated by PW-1 SI Yogesh Kumar and after recovery of the case property investigation of the present case was marked to PW-13 SI (now Inspector) Pankaj Tomar who arrested the accused. Both these police officials had sent reports U/s 57 NDPS Act to their respective ACPs.
The report by PW-1 SI Yogesh Kumar was sent on 28.07.2021 signed by Inspector Narcotics Cell/ Shahdara on 28.07.2021 received in the office of ACP, Operation, Shahdara vide diary no. 90 dated 28.07.2021 (Ex. PW-12/C). The same is bearing signature of Inspector Narcotic Cell/ Shahdara as well as signature of ACP, Operation, Shahdara dated 28.07.2021 itself. The original report is on record as Ex. PW-12/B. This fact has been corroborated with the testimony of PW-13 ACP Sushil Tyagi who was looking after the work of ACP, Operation Cell, Shahdara at the relevant time period.
The report prepared by PW-15 SI Pankaj Tomar on 28.07.2021. It DLSH010077852021 Page 42 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act was dispatched vide no. 1876 dated 28.07.2021 from P.S. Seemapuri and received in the office of ACP vide diary no. 3158 dated 28.07.2021, the original report is on record as Ex. PW-9/A. The same is bearing signature of SHO, P.S. Seemapuri as well as signature of ACP, P.S. Seemapuri dated 28.07.2021 itself. The diary of correspondence having entry no. 3158 prepared at office of ACP is Ex. PW-9/B. PW-11 Inspector Padam Singh Rana (SHO, P.S. Seemapuri) has also deposed about forwarding of this report.
Thus, the said reports have been duly proved on record. The reports were submitted to ACP concerned within 48 hours of recovery. Accordingly, in the opinion of the Court the provisions of Section 57 of the NDPS Act were duly complied with by the Investigating Agency in the facts of the present case.
Discussion on the point of recovery of contraband
53. As per prosecution case, on 27.07.2021 on the basis of secret information, a raiding party was constituted which laid trap in front of Shamshan Ghat near Seemapuri Gol Chakkar. At about 8:45 pm accused came from the side of Seemapuri Gol Chakkar. On pointing out of secret informer, he was apprehended. On his personal search by SI Yogesh Kumar on the instructions and in presence of PW-13 ACP Sushil Tyagi, a polythene was recovered from the right side pocket of wearing lower of accused which was found containing 30 gms of brown colour powder, on testing by field testing kit the same found to be heroin.
54. The recovered contraband was seized in a pullanda and the same DLSH010077852021 Page 43 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act was sealed with the seal 'YK' belonging to PW-1 SI Yogesh Kumar. The same was seized vide seizure memo Ex. PW-1/2, bearing signatures of accused Ibadul @ Shera. The seal was handed over after use by PW-1 SI Yogesh Kumar to PW-2 ASI Lokender. PW-1 also prepared rukka and handed over the same alongwith the sealed parcel and copy of seizure memo to PW-6 Ct. Devender with directions to hand over the rukka to the Duty Officer and the remaining things to the SHO.
55. PW-1, PW-2, PW-3 and PW-6 are the star witnesses of the prosecution as they had apprehended accused Ibadul @ Shera and had found contraband in his possession. PW-13 ACP Sushil Tyagi is also a material witness on whose instructions and in whose presence contraband was recovered in the personal search of accused.
Perusal of cross-examinations of these witnesses reveals that nothing material has come in the same so as to doubt their deposition as regards the alleged recovery. The witnesses withstood the rigors of cross-examination and corroborated material particulars regarding the recovery of contraband from the accused.
56. The testimonies of PW-1, PW-2, PW-3 and PW-6 are corroborated by testimony of PW-15, as the said witness reached the spot upon receiving the FIR, where he found accused Ibadul @ Shera and PW-1, PW-2 & PW-3 present.
PW-15 was also cross-examined, but there is nothing in his cross-
DLSH010077852021 Page 44 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act examination, which may create a doubt as regards the recovery alleged to have been made from accused Ibadul @ Shera.
57. From the testimony of the aforesaid witnesses, it stands proved that on 27.07.2021, a polythene containing 30 gms brown colour powder was recovered from the right side pocket of wearing lower of accused, which upon testing at the spot with the field testing kit was positive for heroin, weighing in total 30 gms.
58. The accused neither in his statement U/s 313 Cr.P.C. nor in any of the suggestions given to the prosecution witnesses, claimed animosity or acquaintance with the police officials, hence there was no ground or reason for the police to falsely implicate him in the present case. Furthermore, till date the accused has not raised any protest against his alleged false implication which shows that he has taken this plea for the sake of plea and there is no substance in it.
59. In view of the aforesaid discussions, it is held that prosecution has successfully proved that accused was apprehended by PW-1, PW-2, PW-3 and PW-6 with the contraband as alleged.
Discussion on non-joining of the public witnesses
60. During course of arguments, Ld. Defense Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined DLSH010077852021 Page 45 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and credit worthy being interested witnesses.
61. Admittedly, in the present case no public or independent witness has been joined during course of the investigation, however it is clear from the testimonies of the prosecution witnesses especially PW-1 that he made sincere efforts to join public witnesses, but none agreed.
62. In this regard, PW-1 deposed that on reaching the spot he requested passerby to join the investigation, but non agreed and left citing their reasonable excuses without disclosing their names and addresses and no notice could be served on them.
63. From the aforesaid deposition of the witness, it is clear that he made efforts, to join public witnesses, but none agreed. The deposition of this witness as regards repeated efforts made by him to join the public witnesses is corroborated by PW-2, PW-3 and PW-6.
64. Thus, the non-joining of independent witnesses despite efforts having been made in this regard, is not fatal to the prosecution case. In this regard, this Court is supported by the case law i.e. Ajmer Singh Vs. State of Haryana reported as 2010 (2) SCR 785. The relevant para reads as under:-
"It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and DLSH010077852021 Page 46 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
65. Further, it is well settled law that the evidence of police official cannot be doubted unless previous enmity between the accused and the police officials is shown. In Sunil Tomar vs. State of Punjab, AIRONLINE 2012 SC 728 decided on 19.10.2012, it was held :-
"In a case of this nature, it is better if prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and official witnesses, there is nothing wrong in relying upon their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
66. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimonies can be relied upon even without corroboration by an independent witness if same is cogent and reliable. In Rohtas Vs. State of Haryana, JT 2013(8) SC 181, Hon'ble Supreme Court held that :-
'Where all the witnesses are from police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be DLSH010077852021 Page 47 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
67. It is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, in Ram Swaroop Vs. State (Govt. NCT) of Delhi', 2013(7) SCALE 407 , where the alleged seizure took place at a crowded place yet no independent witness could be associated with the seizure, Hon'ble Apex Court inter alia observed as under :-
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses."
68. Thus, in view of the settled legal position, the testimony of the police officials examined in the instant case cannot be seen with suspicion merely for the reason of non-joining of independent witness as firstly it is clear that sufficient efforts were made by PW-1. Furthermore, the testimonies of the police officials do not suffer from any material contradiction to doubt their version. Moreover, no animosity between accused and the police officials has been pointed out. Therefore, even otherwise there is no reason to disbelieve the testimonies of police officials regarding non-joining of public witnesses.
Whether recovered substance is heroin?
69. As stated earlier, 30 gms brown colour powder was recovered from the right side pocket of wearing lower of accused Ibadul @ Shera, which was DLSH010077852021 Page 48 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act seized and was subjected to proceedings U/s 52A NDPS Act (proceedings U/s 52A NDPS Act are admitted U/s 330 BNSS/ 294 Cr.P.C. and the same are Ex. AD-1). During proceedings U/s 52A NDPS Act two samples of 05 gms each were taken from pullanda, they were marked as A-1 and A-2 and remaining substance was kept in a separate pullanda marked as A. The samples and pullanda were sealed with the seal 'MM' of Ld. MM Sh. Mayank Mittal who conducted proceedings U/s 52A NDPS Act.
Sample pullanda Mark-A1 was received in the FSL with the seal of 'MM', the seal was found intact. The expert analysis on the samples was carried out at FSL by Dr. Adesh Kumar, Senior Scientific Officer (Chemistry), FSL, Rohini, Delhi examined as PW-14. As per the FSL result Ex. PW-14/A, on examination of Ex. A1 (taken out from pullanda Mark-A1) it was found to contain Diacetylmorphine, 6-Monoacetylmorphine, Acetylcodeine, Morphine, Codeine, Papaverine & Trimethoprim.
70. There is nothing to doubt the FSL Result Ex. PW-14/A, which was prepared by Senior Scientific Officer (Chemistry) FSL, who is a Senior Officer at FSL, Rohini and has no reason or motive to give a false or manipulated report.
71. In view of the same, it is held that the accused Ibadul @ Shera was found in possession of intermediate quantity of heroin i.e. 30 gms.
Compliance under section 52A NDPS Act DLSH010077852021 Page 49 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act
72. As a matter of fact, in the present case the sampling proceedings were conducted before the Ld. Magistrate U/s 52A of the NDPS Act. The said proceedings were admitted during trial by accused which is on record as Ex. AD-1. One of the sample taken during proceedings U/s 52A of the NDPS Act had duly reached FSL with the seal of 'MM' of Ld. MM Sh. Mayank Mittal and the FSL report has been duly proved on record as Ex. PW-14/A. The two pullandas containing second sample and remaining contraband were duly proved in the Court with the seal of 'MM' of Ld. MM Sh. Mayank Mittal and are exhibited as Ex. P-2 and Ex. P-3. The remnants from the FSL were proved on record as Ex. P-1 bearing due seal of 'FSL AY DELHI'.
73. Thus, in the present case there is due compliance of Section 52A NDPS Act, as the sampling proceedings were done by Ld. MM.
Videography and Photography not done during the proceedings and CCTV footage not produced
74. It was submitted on behalf of accused that, though, the spot, where the accused was allegedly apprehended was a public road where several public witnesses were available, but neither videography nor photography of the proceedings was conducted by the investigating agency.
75. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2021.
DLSH010077852021 Page 50 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act
76. The question before the Court is whether the deposition of recovery witnesses, who have corroborated each other in material particulars, can be overlooked or disbelieved, merely because they did not take photographs or video at the time of search and seizure?
77. Though the videography and photography of the search and seizure proceedings is no doubt desirable, but its absence cannot be a ground to disbelieve the deposition of the recovery witnesses.
78. This is neither any legal provision that makes it mandatory in each case that the recovery proceedings be videographed or photographed, nor there is any law of evidence, that in absence of videography/ photography, the evidence of the prosecution witnesses cannot be relied upon. Accordingly, absence of videography/ photography of recovery proceedings by itself does not render the case of prosecution doubtful.
Presumption
79. 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 DLSH010077852021 Page 51 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act Lal Vs. State of Rajasthan, Crl. (2015) 6 SCC 222 dealt with this aspect in detail and held as under :-
12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:
35. Presumption of culpable mental state.-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35 of the NDPS Act.
XXXXX
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 DLSH010077852021 Page 52 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused-Appellant cannot take the plea that he had committed an offence Under Section 9 of the Opium Act and not Under Section 18 of the NDPS Act."
80. In Noor Aga Vs. State of Punjab and Anr., (2008) 16 SCC 417, Hon'ble Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily.
81. Additionally, Hon'ble Supreme Court, in Sardul Singh Vs. State of Haryana, (2002) 8 SCC 372, discussed the approach the Court should take when analyzing the evidence, as under :-
DLSH010077852021 Page 53 of 54 SC No. 247/2021STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act "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."
82. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused Ibadul @ Shera beyond reasonable doubt. The presumption under Sections 35 and 54 of the NDPS Act is applicable in this case against the accused, as the recovery of contraband has been established beyond reasonable doubt. The accused failed to rebut this presumption, leading to the conclusion that he was knowingly and deliberately in possession of intermediate quantity of heroin. According to the presumption under Section 54 of the NDPS Act, since the accused was found in possession of intermediate quantity of heroin, he has committed an offence punishable under Section 21(b) of the NDPS Act.
Conclusion DLSH010077852021 Page 54 of 54 SC No. 247/2021 STATE Vs. IBADUL @ SHERA FIR No. 358/2021 (Seemapuri) U/s 21(b) NDPS Act
83. The prosecution proved beyond reasonable doubt that accused Ibadul @ Shera was in possession of intermediate quantity of heroin as 30 gms of heroin was recovered from his possession. In view of the presumption under Sections 35 and 54 NDPS Act, it is presumed that accused Ibadul @ Shera had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug/ heroin without any authority or license to be in possession of the same.
Order
84. Accordingly, accused Ibadul @ Shera is convicted for the offence punishable under Section 21(b) of the NDPS Act qua possession of 30 gms of heroin. Copy of the judgment be supplied to accused free of cost.
Digitally
Announced in the open Court GAJENDER signed by
SINGH GAJENDER
on 23rd December, 2025 NAGAR SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi