Delhi District Court
State vs Rohit on 5 May, 2025
DLSH010043382021 Page 1 of 92
SC 199/2021
STATE Vs. ROHIT & ANR.
FIR No.72/2021
PS : Vivek Vihar
U/s.21(b) NDPS Act
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC 199/2021
STATE Vs. ROHIT & ANR.
FIR No.72/2021
PS : Vivek Vihar
U/s.21(b) NDPS Act
In the matter of :-
State
...(through Sh. Jitendra Sharma, Addl. PP)
Vs.
1. Rohit
S/o. Late Sh. Mahender
R/o. H.No.28/44A, Kasturba Nagar,
Vivek Vihar, Shahdara,
Delhi ....accused no.1
2.Rajni
W/o. Late Sh. Mahender
R/o. H.No.28/44A, Kasturba Nagar,
Vivek Vihar, Shahdara,
Delhi ....accused no.2
(Sh. Mukesh Kumar, Advocate
for both accused)
Date of institution : 04.06.2021
Date when Judgment reserved : 02.04.2025
Date of Judgment : 05.05.2025
Final decision : Convicted
DLSH010043382021 Page 2 of 92
SC 199/2021
STATE Vs. ROHIT & ANR.
FIR No.72/2021
PS : Vivek Vihar
U/s.21(b) NDPS Act
JUDGMENT:-
1. Accused Rohit and Rajni are before the Court facing charge under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the NDPS Act") as it is alleged that total 35 gms of smack / opium derivative (20 gms from accused Rohit and 15 gms from accused Rajni) was recovered from their possession on 24.03.2021, at about 2.35 p.m., in front of H.No.28/44A, in street near wall of Tikona Park, Kasturba Nagar, Shahdara, Delhi.
2. In view of alleged recovery of 35 gms of smack from both the accused, FIR No.72/21 was lodged at PS Vivek Vihar on 24.03.2021. After completion of investigation, charge-sheet was filed on 19.05.2021. Charge was framed on 27.04.2021 as under :
"
CHARGE That on 24.03.2021 at 2.35 PM at in front of H.No. 28/44-A, in the Gali near Wall of the Tikona Park, Kasturba Nagar, Shahdara, Delhi, you accused Rohit were found carrying one transparent polythene in your hands while you accused Rajni were carrying one small cloth bag of white and violate color in your Right hand, and on checking the said transparent polythene it was found containing 20 grams of Smack (Heroin) and from small cloth bag, it was found containing transparent polythene having 15 grams of Smack (Heroin) respectively, in contravention of provisions of NDPS Act and thereby you both committed an offence punishable under Section under Section 21(b) NDPS Act, 1985 and within the cognizance of this court."
3. Altered charge was also framed on 25.01.2025 for offence u/s.21(b) NDPS Act, to clarify that smack is not limited to 'heroin' but any 'opium derivative' in view of the FSL result, which reads as under :
DLSH010043382021 Page 3 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act "
ALTERED CHARGE That on 24.03.2021 at 2.35 PM at in front of H.No. 28/44-A, in the Gali near Wall of the Tikona Park, Kasturba Nagar, Shahdara, Delhi, you accused Rohit were found carrying one transparent polythene in the pocket of your jeans pant while you accused Rajni were carrying one small cloth bag of white and violate color in your Right hand, and on checking the said transparent polythene recovered from the pocket of jeans pant of you accused Rohit, it was found containing 20 grams of Smack/ other Opium derivatives and from small cloth bag, it was found containing transparent polythene having 15 grams of Smack/ other Opium derivatives respectively, in contravention of provisions of NDPS Act and thereby you both committed an offence punishable under Section under Section 21(b) NDPS Act, 1985 and within the cognizance of this court."
4. In order to prove the aforesaid charge, the prosecution examined 15 witnesses. The details of the said witnesses alongwith the documents that they exhibited during their deposition is mentioned hereinbelow in tabular form:-
Sl. No. Name of witness Documents Description
exhibited
PW1 HC Prince Ex. PW1/A Seizure memo of case property
(recovery witness) Ex. PW1/B Disclosure statement of accused Rohit
Ex. PW1/C Arrest memo of accused Rohit
Ex. PW1/D Personal search memo of accused Rohit
Ex. PW1/E Seizure memo of contraband recovered from
accused Rohit
Ex. PW1/F Seal handing over memo
Ex.PW1/P1 30 photographs taken during sampling
(colly) proceedings
Ex. P-1 Original notice u/s.50 NDPS Act of accused
Rohit
Ex. P-2 Original notice u/s.50 NDPS Act of accused
Rajni
DLSH010043382021 Page 4 of 92
SC 199/2021
STATE Vs. ROHIT & ANR.
FIR No.72/2021
PS : Vivek Vihar
U/s.21(b) NDPS Act
Ex. P-2 Sample of contraband recovered from the
possession of accused Rajni examined at FSL
Ex. P-3 Sample of contraband recovered from the
possession of accused Rohit examined at
FSL
Ex. P-4 Contraband recovered from accused Rajni
Ex. P-5 Contraband recovered from accused Rohit
Ex. P-6 & Samples of contraband recovered from both P-7 accused and taken out before the Ld. MM Ex. P-8 Jeans of accused Rohit sealed with seal of RK Ex. P-9 Currency notes recovered from personal search of accused Rohit PW2 HC Mohit (recovery witness) PW3 WHC Deepshikha (took search of accused Rajni and recovery witness) PW4 SI Monu Chauhan Ex. PW4/A Rukka (Investigating Ex. PW4/B Notice u/s.50 NDPS Act qua accused Rajni Officer) PW5 ASI Rajiv Saxena Ex. PW5/A Copy of diary register of ACP Office (Reader to ACP) Ex. PW5/B Copy of special report sent by SI Monu Chauhan Ex. PW5/C Copy of special report sent by ASI Narender Singh PW6 W/Ct. Monika Ex. PW6/1 Arrest memo of accused Rajni (witness of arrest Ex. PW6/2 Personal search memo of accused Rajni of accused Rajni) Ex. PW6/3 Disclosure statement of accused Rajni PW7 ACP Hira Lal (In-
charge Narcotic
Cell) (witness
w.r.t. compliance
SAURABH Digitally
by SAURABH
signed
PARTAP PARTAP SINGH
LALER
SINGH Date: 2025.05.05
LALER 16:17:19 +0530
DLSH010043382021 Page 5 of 92
SC 199/2021
STATE Vs. ROHIT & ANR.
FIR No.72/2021
PS : Vivek Vihar
U/s.21(b) NDPS Act
of Sections 42 and
57 NDPS Act)
PW8 ACP Sanjeev
Kumar
(ACP Operation)
(witness to
recovery)
PW9 Insp. Vijay Kumar Ex. PW9/A Entry in register no.19
(SHO PS Vivek Ex. PW9/B GD No.103A dated 24.03.2021
Vihar) (witness to
compliance u/s.55
NDPS Act)
PW10 ASI Kailash Ex.PW10/A Copy of FIR
(Duty Officer) Ex. PW10/B Endorsement on rukka
PW11 HC Rajeev
(witness deposited
case property at
FSL)
PW12 SI Mamta (witness
of arrest and
personal search)
PW13 SI Narender Ex. PW13/A Site plan
(2nd IO)
PW14 Dr. Kavita Goyal Ex. PW14/A FSL report dated 22.08.2022 (FSL Expert) PW15 ASI Dinesh Ex. PW15/A Entry at sl. Nos.143 & 144 in register no.19 (MHCM) Ex. PW15/B Entry at sl. No.145 in register no.19 Ex. PW15/C Copy of RC No.226/21/21 Ex. PW15/D Copy of acknowledgment of FSL Admitted documents Ex. AD1 Proceedings conducted and certificate issued u/s.52A NDPS Act by Ld. MM on 30.03.2021 Ld. Defence counsel did not dispute the photographs of the sampling and the certificate u/s 65B of IEA.
DLSH010043382021 Page 6 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
5. Upon examining the testimony of the aforesaid witnesses, it is found that:-
5.1. On 24.03.2021, a secret informer came in the office of ANTF and met PW2 Ct. Mohit and informed him that accused Rohit and Rajni, residents of Kasturba Nagar, who sell smack, would be coming near Tikona Park on that day at around 2.00 - 2.30 p.m. 5.2. PW2 produced the secret informer before PW4 SI Monu Chauhan, who conveyed the said secret information to Insp. Narcotic Cell PW7 Heera Lal and was directed by PW7 to conduct further proceedings. 5.3. PW4 SI Monu Chauhan got recorded the secret information vide DD No.6 (Mark-T) and placed the copy of the same before Insp.
Narcotic Cell PW7 Heera Lal. Thereafter, raiding team was constituted by PW4 SI Monu Chauhan including PW2 Ct. Mohit, PW3 W/Ct. Deepshikha, PW1 Ct. Prince and they alongwith secret informer left the PS in Swift Dzire car bearing no. DL5CJ4486 alongwith IO kit, field testing kit, electronic weighing machine, vide Departure Entry No.7 (Mark-R).
5.4. PW1, PW2, PW3 & PW4 alongwith the secret informer reached the spot i.e. Kasturba Nagar Shamshan Ghat, MCD Park, via Ginger Hotel at about 2.10 p.m., where PW1 parked the aforesaid car. PW4 informed PW8 Sanjeev Kumar, ACP Operation Cell, about the secret information and he was directed by PW8 to conduct raid.
5.5. PW4 thereafter asked 4-5 public persons to join investigation, but none agreed to join the same. PW1 & PW2 went towards MCD Tikona Park, Kasturba Nagar and PW3, PW4 alongwith secret informer went DLSH010043382021 Page 7 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act towards other side of the park.
5.6. At about 2.35 p.m., they saw accused Rohit and Rajni coming from the house in front of the gate of the park and saw that accused Rajni was carrying one small bag of white and purple colour in her hand. The secret information gave signal regarding identification of the accused and left the spot.
5.7. Members of the raiding team apprehended both the accused persons, who disclosed their names as Rohit and Rajni. 5.8. PW4 introduced himself and the members of the raiding team to the accused persons and apprised them about the secret information and also about their legal rights, that they can take search of the members of the raiding team before their search is conducted and that they can get themselves searched in the presence of any gazetted officer or a magistrate, or gazetted officer or magistrate can be called at the spot for their search.
5.9. A written notice in this regard u/s.50 NDPS Act was also given to both the accused persons namely Rohit and Rajni, the carbon copy of which are Mark X and X1 respectively.
5.10. Refusal of accused Rohit to avail his legal rights was recorded on the carbon copy at point Y and that of accused Rajni was recorded on the carbon copy at point Y1. The carbon copy Mark X bears signatures of accused Rohit at points C and C1 and the carbon copy Mark X1 bears the signatures of accused Rajni at points A and A1.
5.11. PW4 called ACP/PW8 and intimated him about apprehension of DLSH010043382021 Page 8 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act the accused persons at 2.55 p.m., PW8 came at the spot at 3.10 p.m. and saw both the accused persons alongwith the raiding party. In his presence, search of accused Rohit was conducted and from the pocket of his jeans which he was wearing, one polythene containing pink coloured powder was recovered and from the bag carried by accused Rajni, another polythene containing pink colour powder was found. The said powder was checked on field testing kit and was found positive for heroin / smack.
5.12. PW4 weighed the pink coloured substance recovered from accused Rajni, which was found to weigh 15 gms and he also weighed the substance recovered from accused Rohit, which was found to be 20 gms in weight. Separate pulandas were prepared and were marked as Mark A and Mark B respectively and were sealed by PW4 with the seal of MC. PW4 also filled up FSL form and prepared the seizure memo Ex. PW1/A, which also bears signatures of the accused persons and that of ACP / PW8 and members of raiding team.
5.13. Thereafter, PW8 left the spot and PW4 handed over the seal of MC to PW2 Ct. Mohit vide seal handing over memo Ex. PW1/F. After that, both the accused persons were brought by the raiding team to ANTF office, where rukka Ex. PW4/A was prepared by PW4 and the same alongwith two sealed parcels, carbon copy of seizure memo was handed over to PW1 to be taken to PS Vivek Vihar for registration of FIR and for handing over the case property to SHO.
5.14. PW1 alongwith the aforesaid articles went to PS Vivek Vihar, DLSH010043382021 Page 9 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act where he handed over the original rukka Ex. PW4/A to Duty Officer, PW10 ASI Kailash, who recorded the present FIR Ex. PW10/A and made endorsement on the rukka Ex. PW10/B. 5.15. PW1 gave the copy of seizure memo and the sealed parcels to PW9 Insp. Vijay Kumar, SHO PS Vivek Vihar, who checked the parcels and found them to be sealed with the seal of MC and after reading the seizure memo, he affixed his counter seal of VK on both the parcels and also mentioned the FIR numbers on them, after confirming it from Duty Officer / PW10.
5.16. PW9 called PW15 ASI Dinesh MHCM in his office and handed over to him two sealed parcels bearing the seals of MC and VK and he deposited the said parcels in the Malkhana vide entry no.141 Ex. PW9/A, which was also countersigned by PW9. PW9 also got GD No.103A Ex. PW9/B dated 24.03.2021 recorded in this regard. 5.17. After the registration of FIR and handing over the case property to PW9, PW1 alongwith the copy of FIR and original rukka came back to ANTF office, where he handed over the same to PW13 SI Narender, as the investigation was marked to him. PW13 alongwith PW4 again went to the spot, where PW13 prepared site plan at the instance of PW4, which is Ex. PW13/A. 5.18. PW13 thereafter came back to ANTF office, where he arrested accused Rohit vide arrest memo Ex. PW1/C and conducted his personal search vide memo Ex. PW1/D, in which original notice u/s.50 NDPS Act Ex.P1 was recovered. He also seized the pant that accused Rohit was DLSH010043382021 Page 10 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act wearing at the time of apprehension, from the pocket of which, the alleged contraband was recovered vide memo Ex.PW1/E in pullanda sealed with the seal of RK.
5.19. PW13 on the directions of senior officers took permission from Ld. Duty Magistrate to arrest co-accused Rajni at night and PW12 W/SI Mamta was called for the said purpose, who in presence of PW6 W/Ct. Monika arrested accused Rajni vide arrest memo Ex. PW6/1 and conducted her personal search vide memo Ex. PW6/2, during which original notice u/s.50 NDPS Act Ex. PW4/B was recovered. 5.20. Thereafter, disclosure statement of accused Rohit was recorded, which is Ex. PW1/D and disclosure statement of accused Rajni was also recorded, which is Ex. PW1/E and bears the signatures of PW6 W/Ct. Monika.
5.21. Report u/s.57 NDPS Act Ex. PW5/B regarding recovery of contraband from accused Rohit and Rajni was prepared by PW4 and report u/s.57 NDPS Act Ex. PW5/C regarding arrest of the accused was prepared by PW13 SI Narender. The said report was placed before PW7 In-charge Narcotic Cell, who signed the same and forwarded them to ACP Operation Cell.
5.22. The aforesaid reports were received in the ACP office vide entry nos.23 & 24 in diary register Ex. PW5/A, made by PW5 ASI Rajiv Saxena (Reader to ACP). The said reports were also seen by PW8 ACP Sanjeev Kumar, who also affixed his signatures upon them. 5.23. Personal search articles recovered upon personal search of accused DLSH010043382021 Page 11 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act persons were deposited in Malkhana by PW13 SI Narender vide Entry Nos.143 & 144 in register no.19, Ex. PW15/A. 5.24. On 25.03.2021, PW13 deposited one sealed parcel with the seal of RK in malkhana vide entry no. 145 in register no. 19 Ex.PW15/B. 5.25. PW13 SI Narender moved an application u/s.52A NDPS Act for drawing of samples on 26.03.2021, which was fixed by Ld. MM-02 for 27.03.2021 and as on that day, the accused could not be produced hence, the same was fixed for 30.03.2021 and on 30.03.2021, PW11 HC Rajiv on the directions of PW13 obtained two sealed parcels Mark A and Mark B vide RC No.224/21/21 from PW15 and brought those samples to KKD Courts in the Court of Ld. MM. The presence of accused persons and photographer PW1 Ct. Prince, two sealed pulandas Mark A and B were produced by PW11 and the same were found bearing the seals of MC and VK. Pulanda Mark A was opened after breaking the seals and was found containing brick red colour powder in a Potli, which upon weighing was found to be 15.4 gms. Two samples of around 5 gms each were drawn from pulanda Mark A exactly weighing 5.01 gms and 5 gms and were given Mark A1 and A2. Pulanda Mark B was opened after breaking the seals and was found containing brick red colour powder in a Potli, which upon weighing was found to be 20.48 gms. Two samples of around 5 gms each were drawn from pulanda Mark A exactly weighing 5.01 gms each and were given Mark B1 and B2. All the pullandas mark A, A1, A2 and B, B1 and B2 were sealed with the seal of Ld. Magistrate i.e. AN. Memorandum of proceedings was prepared which is Ex.AD-1 DLSH010043382021 Page 12 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act (admitted by accused persons on 03.12.2024) and it was accompanied with certificate of correctness issued by Ld. MM Ex.AD-2 (admitted by accused persons on 03.12.2024). 30 Photographs of the proceedings u/s.52A NDPS Act were Ex.P1 (colly.) (as the photographs and sampling proceedings were not disputed by the ld. Defence counsel, hence certificate u/s 65B IEA was dispensed with during the deposition of PW1 dated 07.02.2024). PW11 carried all the five pullandas from the court of Ld. MM and deposited it with MHCM / PW15 who deposited the same in the malkhana.
5.26. On 01.04.2021, PW2 Ct. Mohit on the directions of PW13 took two sealed parcel Mark A1 and B1 from MHCM / PW15 vide RC No.226/21/21 Ex.PW15/C which he took to FSL and deposited the same with FSL vide acknowledgment Ex.PW15/D. 5.27. The samples Mark A1 and B1 sealed with the seal of AN were examined by PW14 Dr. Kavita Goel, Assistant Director Chemistry FSL Rohini from 03.12.2021 to 22.08.2022 and as per report Ex.PW14/A dated 22.08.2022, the samples were found to contain acetaminophen, caffeine, morphine, codeine, acetylcoediene, monoacetylmorphine and trimethoprim. The remants of the exhibits were sealed in the same pullandas with the seal of KG FSL DELHI.
5.28. Case property was produced in the Court by MHCM and pullanda A1 bearing seal of KG FSL DELHI is Ex.P-2, pullanda B1, bearing seal of KG FSL DELHI is Ex.P-3, pullanda A bearing seal of AN is Ex.P-4, pullanda B bearing seal of AN is Ex.P-5, pullanda A2 bearing seal of AN DLSH010043382021 Page 13 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act is Ex.P-6 and pullanda B2 bearing seal of AN is Ex.P-7, jeans which accused Rohit was wearing at the time of apprehension, was produced in the pullanda with the seal of RK and the same is Ex.P-8.
6. After closing of the prosecution evidence, statements of both the accused under Section 313 Cr.P.C. were recorded wherein they pleaded their innocence and claimed that they have been falsely implicated in the present case due to previous involvement in some excise cases. Both the accused opted not to lead evidence in their defence.
7. I have heard the Ld. Additional Public Prosecutor and the Ld. Counsel Sh.
Mukesh Kumar for both the accused and perused the record. Arguments
8. During course of the arguments, Ld. Counsel for the accused has made following submissions:
8.1. As per the charge-sheet, smack was allegedly recovered from the accused persons, however, as per the FSL result, other substances were also found in the recovered substance, as a result of which, the charge was also altered on 25.01.2025. This shows that the recovered substances, which was recovered from the accused persons was not smack, as alleged in the charge-sheet.
8.2. Despite the recovery having been made from a public place surrounded by residential and commercial area, not even one public person was joined during the course of investigation. No notice was served to the public persons, who as per the prosecution witnesses, refused to join the investigation.DLSH010043382021 Page 14 of 92 SC 199/2021 FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act 8.3. The prosecution witnesses also failed to tell the make, brand and dimension of the weighing machine, which was allegedly used for weighing the contraband at the spot.
8.4. PW1 and PW2 HC Mohit failed to tell even the colour of house of the accused persons, in front of which the recovery was allegedly made. 8.5. Though, the rukka was sent to PS Vivek Vihar, but no police official from PS Vivek Vihar was joined in the investigation. 8.6. Neither any videography or photography of the search and seizure proceedings was conducted, nor any CCTV footage was collected in this regard.
8.7. As per the charge-sheet, the raiding staff members kept their mobile phones in the office before leaving for the spot, but PW4 and PW8 testified that PW4 called PW8 (ACP) telephonically at 2.55 p.m. to inform about the apprehension of the accused persons and to come at the spot for compliance of Section 50 NDPS Act.
8.8. Neither the secret informer was produced before PW8 (ACP) nor any efforts were made to join the public persons to join the proceedings in his presence.
8.9. None of the recovery witnesses stated as to besides the contraband, what else was recovered from the possession of the accused persons during their bodily search.
8.10. PW8, despite being senior police official, could not tell as to how many police officials in raiding team were in police uniform and how many were in plain clothes.
DLSH010043382021 Page 15 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act 8.11. Despite the alleged recovery having been made at around 2.30 p.m. and despite the lodging of the FIR at 2.35 p.m., arrest of accused Rajni was shown to have been done at 12.30 a.m. on the intervening night of 24-25.03.2021.
8.12. PW4 SI Monu Chauhan stated that PW1 Ct. Prince left for the PS at about 6.15 p.m., whereas as per PW10 ASI Kailiash, Duty Officer, PW1 Ct. Prince came to him at around 7.12 p.m., despite the fact that the spot from where the recovery was made, is hardly at a 10 minutes distance from the PS. 8.13. Accused have been falsely implicated in the present case as they have previous involvement in the cases under Delhi Excise Act. The accused were lifted from the house and the entire proceedings were conducted at the PS, where their signatures were obtained on blank papers.
8.14. The secret information in the present case was received by PW2 Ct. Mohit, however, as per the requirement of Section 42 NDPS Act, PW2 Ct. Mohit did not record the said information in writing. Hence, there is violation of Section 42 NDPS Act.
8.15. The secret informer was produced before PW4 SI Monu Chauhan, but even PW4 SI Monu Chauhan did not record the said secret information on CCTNS, rather, he got the information recorded in a handwritten Rojnamcha (DD No.6 Mark T), which can be easily manipulated, ante- dated and ante-timed.
8.16. The DD No.6 w.r.t. recording of the secret information in terms of DLSH010043382021 Page 16 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act Section 42 NDPS Act, was never produced by PW4 SI Monu Chauhan either before PW7 Insp. Heera Lal or before PW8 ACP Sanjeev Kumar, hence, PW7 ACP Hira Lal never stated that he signed DD No.6, Narcotic Cell, Shahdara.
8.17. PW4 SI Monu Chauhan deposed that he was authorised to conduct raid by PW7 Insp. Heera Lal, which is not permissible u/s.41 r/w. Section 42 NDPS Act as Insp. Heera Lal is not a gazetted officer and, therefore, not empowered u/s.41(2) of NDPS Act, so as to authorise any of his subordinate to conduct proceedings u/s.42 NDPS Act. Therefore, the entire proceedings conducted by PW4 i.e. by first IO are without authorisation and cannot be relied upon against the accused. Ld. Counsel also referred to the contents of DD No.6, wherein he pointed out that the authorisation was given by PW7 Insp. Heeral Lal and not by an officer, empowered u/s.41(2) of NDPS Act.
8.18. Despite the fact that as per prosecution, the accused refused to get himself searched before gazetted officer or Magistrate, still, PW8 ACP Sanjeev Kumar was telephonically informed by PW4, who arrived at the spot and without informing the accused of their right u/s.50 NDPS Act, got his bodily search conducted. Ld. Counsel pointed out that ACP Sanjeev Kumar is not an independent witness as PW7 Insp. Heera Lal and PW8 ACP Sanjeev Kumar had categorically deposed that the secret information was shared by PW7 with PW8.
8.19. No record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW4. It DLSH010043382021 Page 17 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act could not be proved by the prosecution that the weighing machine, used to weigh the contraband at the spot, was on that day handed over to PW4 for the purpose of investigation.
8.20. Seal in the present case after use was handed over by PW4 to PW2 HC Mohit and not to any public person despite the fact that the place of recovery is a busy place. Tampering of the case property by the police officials of the raiding team after the seizure cannot be ruled out, as the seal remained in the possession of the members of raiding team after the alleged seizure of the contraband.
8.21. PW8 ACP Sanjeev Kumar also failed to establish his presence at the spot as no departure or arrival entry could be produced by him to show that he had left the office to arrive at the spot. He also could not produce the log book of the government vehicle, in which he came to the spot to substantiate the fact that he actually travelled in the said vehicle to the spot on that day. Further, the investigating agency also did not make the driver of the ACP, a witness in the case, in order to prove the fact that the ACP actually came at the spot.
8.22. PW8 MHCM in his deposition stated that the case property was deposited on 23.03.2021 by PW9 Insp. Vijay Kumar, but in register no.19 Ex. PW9/A, the name of the depositor is mentioned as SI Monu Chauhan, who as per the prosecution case was present at the spot at that time.
9. Per-contra, Ld. Addl. PP for the State in rebuttal submitted as under :
DLSH010043382021 Page 18 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act 9.1. The substance recovered from the accused persons is an opium derivative and as per the FSL result, it contains besides other things, codeine, morphine as well as monoacetylmorphine. 9.2. That public persons even if approached to join investigation, refused to join upon coming to know that the matter relates to drugs. Hence, non-joining of public witnesses despite effort having been made to do so, does not adversely affect the prosecution case. 9.3. The first IO / PW4 SI Monu Chauhan categorically mentioned the make and colour of the weighing machine, which was used by him for weighing the contraband at the spot. The machine was primarily handled by the IO / PW4 SI Monu Chauhan, hence, he was able to recall the make and colour of the weighing machine, whereas other two witnesses after the lapse of such long time, failed to recall the same.
9.4. Though, PW1 and PW2 could not tell the colour of the house of the accused, but PW4 categorically mentioned that the house was of green colour. The witnesses stated that the house was a two storey house, which corroborates their depositions.
9.5. That after the registration of the FIR at PS Vivek Vihar, PW6 W/Ct.
Monika from PS Vivek Vihar had joined the investigation and she is witness to the arrest memo Exs. PW6/1 and PW6/2, hence, the witness from the PS were duly joined in the investigation. 9.6. As regards leaving the mobile phone at the office, PW4 had directed other members of the raiding team to leave their mobile DLSH010043382021 Page 19 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act phones at the office, primarily to prevent the escape of secret information. However, PW4 himself did not leave his mobile phone at the office as per charge-sheet.
9.7. Secret informer could not have been produced before PW8 (ACP) as secret informer had already left after pointing at the accused persons before arrival of PW8.
9.8. That the bodily search of the accused persons after serving notice u/s.50 NDPS Act was primarily for the search of the contraband and not for the other articles, for which personal search is conducted subsequently in case need arises to arrest the accused persons.
9.9. PW8 was examined in the year 2024 whereas the incident pertains to year 2021, hence, it was due to lapse of time that he was unable to recall as to how many police officials in raiding team were in police uniform and how many were in plain clothes. 9.10. The FIR in the present case was lodged at 7.12 p.m. and the rukka was received at 6.55 p.m., hence, it is incorrect to say that the FIR was lodged at 2.35 p.m. 9.11. That the rukka was prepared at the office of Narcotic Cell, CBD Ground Shahdara and dispatched at 6.25 p.m., which reached the PS at around 6.55 p.m. Therefore, as it was after sunset, hence, necessary compliances were to be made before the arrest of a female i.e. accused Rajni, which were made by PW4 SI Monu Chauhan and PW12 SI Mamta, as both of them went to the DLSH010043382021 Page 20 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act residence of Ld. MM and obtained permission to arrest Rajni, after which she was arrested vide arrest memo Ex. PW6/1, at about 12.30 a.m. on the intervening night of 24-25.03.2021. 9.12. The secret information in the present case was rightly recorded by PW4 SI Monu Chauhan and not by Ct. Mohit, as Ct. Mohit is not empowered officer under section 42 NDPS Act and the first empowered officer who received the secret information was SI Monu Chauhan.
9.13. The secret information was not recorded on CCTNS as CCTNS was not available at that time in Special Cell where the DD register was maintained.
9.14. DD No.6 regarding recording of the secret information was duly produced by PW4 SI Monu Chauhan before PW7 Inspector Heera Lal as deposed by both these witnesses.
9.15. When PW8 ACP Sanjeev Kumar reached at the spot, PW4 had already informed the accused about his legal right and as such there was no requirement for PW8 to again inform the accused of his legal rights as per section 50 NDPS Act. PW8 ACP Sanjeev Kumar being himself an empowered officer u/s 41(2) NDPS Act and being gazetted officer was competent to search the accused. 9.16. Proof regarding issuing of weighing machine or regarding the logbook of PW8 Sanjeev Kumar, etc have not been produced as these documents are not material in order to prove the charges against the accused. The case property recovered and weighed at DLSH010043382021 Page 21 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act the spot was subjected to proceedings u/s 52A NDPS Act wherein the weight and the description of the seized pullanda corresponds to the weight and description mentioned in the seizure memo. 9.17. That presence of PW8 ACP Sanjeev Kumar at the spot stands established by the fact that he is signatory to the seizure memo prepared at the spot.
9.18. That PW4 SI Monu Chauhan after departure from the office but before the apprehension of accused, had duly communicated PW8 ACP Sanjeev Kumar about the secret information, who had directed him to conduct further proceedings, which fact has also been testified by PW8 ACP Sanjeev Kumar.
9.19. That though the name of SI Monu Chauhan is mentioned in the column relating to the depositor in register no.19 Ex. PW9/A, however, in the same column, PW9 Insp. Vijay Kumar had also affixed his signatures as a depositor, as he deposited the case property after putting the counter seal upon the same, as per his deposition, w.r.t. which he also lodged DD No.103A Ex. PW9/B. Legal Requirement to prove the Charges
10. 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 licence 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,--DLSH010043382021 Page 22 of 92 SC 199/2021
STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act
(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)
11. As far as contravention of the provisions is concerned, Section 8 of NDPS Act completely prohibits the possession of narcotic drug or psychotropic substances, except for medical or scientific purposes, that too in the manner as prescribed by the Act. This section reads as under:
"No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:DLSH010043382021 Page 23 of 92 SC 199/2021
STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes." (emphasis supplied)
12. As per the Section, possession of all narcotic drugs is prohibited by Section 8 of NDPS Act.
13. 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;
14. As per the definition, 'narcotic drug' includes 'manufactured drug', therefore, the possession of 'manufactured drug' is prohibited by Section 8 of NDPS Act.
15. 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)
16. "Opium Derivatives" besides other things also means heroin. It is defined in s.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;DLSH010043382021 Page 24 of 92 SC 199/2021 FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act
(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)
17. 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."
18. 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', 'morphine' and 'codeine'.
19. In order to prove the charges u/s.21(b)NDPS Act, the prosecution is required to prove the following facts:
(1) That the accused were in joint 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.DLSH010043382021 Page 25 of 92 SC 199/2021 FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act (3) That the contraband was opium derivative (i.e. heroin, morphine, codeine etc.) (4) That the quantity of the contraband was intermediate (i.e. more than small quantity mentioned in SO1055(E) dated 19.10.2001).
20. 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.1 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.
21. In State of Punjab vs. Balbir Singh 1994 INSC 96, Hon'ble Apex Court considered the scheme of the Act as under:
1In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 - BOMHC) :
MANU/MH/1838/2002:
2. "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."DLSH010043382021 Page 26 of 92 SC 199/2021 FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act "4. The NDPS Act was enacted in the year 1985 with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in Chapter I deal with definitions and connected matters. The provisions in Chapter II deal with the powers of the Central Government to take measures for preventing and combating abuse of and illicit traffic in narcotic drugs and to appoint authorities and officers to exercise the powers under the Act. The provisions in Chapter III deal with prohibition, control and regulation of cultivation of coca plant, opium poppy etc. and to regulate the possession, transport, purchase and consumption of poppy straw etc. Chapter IV deals with various offences and penalties for contravention in relation to opium poppy, coca plant, narcotic drugs and psychotropic substances and prescribes deterrent sentences. The provisions of Chapter V deals with the procedure regarding the entry, arrest, search and seizure. Chapter VA deals with forfeiture of property derived from or used in illicit traffic of such drugs and substances. The provisions of Chapter VI deals with miscellaneous matters. We are mainly concerned with Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section 41 certain classes of magistrates are competent to issue warrants for the arrest of any person whom they have reason to believe to have committed any offence punishable under Chapter IV or for search of any building, conveyance or place in which they have reason to believe that any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed, is kept or concealed. Section 42 empowers certain officers to enter, search, seize and arrest without warrant or authorisation. Such officer should be superior in rank to a 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 DLSH010043382021 Page 27 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act may also enter and search a building or conveyance at any time between sunset and sunrise also provided he has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for concealment of the evidence or facility for the escape of an offender. But before doing so, he must record the grounds of his belief and send the same to his immediate official superior. Section 43 empowers such officer as mentioned in Section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed and shall also confiscate any animal or conveyance alongwith such substance. Such officer can also detain and search any person whom he has reason to believe to have committed such offence and can arrest him and any other person in his company. Section 44 merely lays down that provisions of Sections 41 to 43 shall also apply in relation to offences regarding coca plant, opium poppy or cannabis plant. Under Section 49, any such officer authorised under Section 42, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, can rummage and search the conveyance or part thereof, examine and search any goods in the conveyance or on the animal and he can stop the animal or conveyance by using all lawful means and where such means fail, the animal or the conveyance may be fired upon. Then comes Section 50. ...... This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any 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 DLSH010043382021 Page 28 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act 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."
22. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
ANALYSIS OF EVIDENCE
23. 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:
Compliance of Section 42 NDPS Act
24. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or DLSH010043382021 Page 29 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within DLSH010043382021 Page 30 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act seventy-two hours send a copy thereof to his immediate official superior." (emphasis supplied)
25. Section 42 of the NDPS Act provides that the concerned police officer, who received the secret information is required to take down the said information in writing and urgently inform his immediate official superior about the secret information and send the information so reduced into writing within 72 hours of its receipt.
26. With respect to the compliance of Section 42 NDPS Act, PW4 SI Monu Chauhan categorically testified that on 24.03.2021, while he was present at ANTF Office, Shahdara, one secret informer came and shared secret information with PW2 Ct. Mohit to the effect that two persons namely Rohit and Rajni, residents of Kasturba Nagar, involved in the work of selling smack / heroin may be apprehended near Tikona Park. The aforesaid information was shared by PW3 with PW4 at around 1.10 p.m. and PW4 also made enquiries from the secret informer. PW4 thereafter produced the secret informer before PW7 Insp. Heera Lal, who instructed PW4 to record the secret information. PW4 in compliance of provisions of Section 42 NDPS Act recorded the secret information vide DD No.6 (Mark-T). PW7 Insp. Heera Lal constituted raiding team including PW4 SI Monu Chauhan, PW1 HC Prince, PW2 Ct. Mohit and PW3 W/HC Deepshikha. The members of the raiding team alongwith the secret informer left the PS in a private vehicle vide Departure Entry / DD No.7 and reached Kasturba Nagar Shamshan Ghat, MCD Park, via Ginger Hotel at about 2.10 p.m.
27. The testimony of PW4 is corroborated by the deposition of PW2 Ct. Mohit DLSH010043382021 Page 31 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act and PW7 Insp. Heera Lal, In-charge Inspector, Narcotic Cell, Shahdara. PW7 categorically testified that PW4 had produced secret informer before him and after satisfying himself, he directed PW4 to get the information recorded and thereafter, constituted the raiding team.
28. It may be noted that PW7 did not testify to the effect that DD No.6, which was lodged w.r.t. the secret information by PW4 SI Monu Chauhan, was produced before him within 72 hours, as per the mandate of Section 42(2) of NDPS Act. He also did not testify to the effect that he had forwarded the said DD No.6 to the concerned ACP / PW8.
29. Even PW8 Sanjeev Kumar, ACP Operation Cell, did not testify that the secret information so recorded vide DD No.6, was received by him on 24.03.2021 or thereafter and that he had seen and signed the same. Therefore, from the deposition of PW4, PW7 and PW8, it is clear that the secret information so recorded by PW8 vide DD No.6 was not placed before PW7 / Inspector and the same was also not forwarded or placed before PW8 / ACP.
30. Further, it may be noted that PW4 testified that after he had left the office alongwith the other members of the raiding team, he informed ACP Sanjeev Kumar regarding the secret information. PW8 ACP Sanjeev Kumar also testified that PW4 SI Monu Chauhan had called him at 2.00 p.m. and informed him about the secret information and that he had directed PW4 to proceed immediately with the raiding team.
31. Considering the aforementioned deposition there are some questions that have arisen before the Court, which are as under :-
DLSH010043382021 Page 32 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act 31.1. Whether the secret information is to be recorded by the first person in the office, who receives the information OR it is to be recorded by the official empowered or competent to take action u/s.42(1) NDPS Act?
a. In the present case, as per the deposition of PW2 and PW4, the secret informer met PW2 at Narcotic Cell office at 1.00 p.m. and gave him the secret information. He took the secret informer to PW4 SI Monu Chauhan to whom secret informer disclosed the secret information and it is PW4 SI Monu Chauhan, who got recorded DD No.6 Mark-T, as regards the secret information.
b. It was argued by Ld. Counsel for the accused that as PW2 had received the secret information, hence, as per the mandate of Section 42, he must have recorded the secret information and that recording of secret information by PW4 SI Monu Chauhan amounts to violation of the provisions of Section 42(1) of NDPS Act.
c. In this regard, reference may be made to bail order in Gulab Rai @ Chetan (supra) passed by the Hon'ble Delhi High Court. Paras 6 to 8 of the said order are reproduced as under :
"6. The undisputed facts are that while the first information was received by HC Amit but it was only Insp. Rakesh Duhan who had reduced the information into writing, which is contrary to the provisions of Section 42 of NDPS Act and the binding dictum of the Supreme Court in Mohammed Nisar Holia (supra). It has been held in the said case by the Supreme Cour that an officer who first receives information is bound to reduce the same in writing and not the person who hears about it. Relevant observations of the Supreme Court are as follows:-
"19. In the instant case, the statutory requirements had not been complied with as the person who had received the first information did DLSH010043382021 Page 33 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act not reduce the same in writing. An officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout. ........."
7. In Sarija Banu and Another v. State through inspector of police, 2004 SCC OnLine SC 264, the Supreme Court observed that compliance with Section 42 of NDPS Act is mandatory and this is a relevant fact which should have engaged the attention of the Court below while considering the bail application. Following the said judgment, the Bombay High Court in Rajaram Kadu (supra), observed as under:-
"9. I have perused the FIR and other documents which form part of the charge sheet and which have been annexed with the application. As far as submission with regard to the discrepancy in the C.A.Report and de-sealing of the articles is concerned, I am of the opinion that the said issue will be the matter of evidence and can be raised during the course of trial. As far as non compliance with Section 42 of the Act is concerned, it can be seen that the information was received by Police Naik Bhagwat Saudane. The FIR does not indicate that he had reduced the information into writing or provided any copy of the information to his superior officer. The statement of API Divekar also does not indicate that he had reduced the information into writing or forwarded the same to his superior officer. However, the prosecution is relying upon the entries made by Senior P.I.Sable of Ulhasnagar in the station diary to show the compliance of Section 42. That cannot be considered to be the compliance of Section 42 of NDPS Act. The point which is canvassed by learned counsel for Applicant is that the person who had received the information had not forwarded it to the superior officer and there is nothing on record to indicate that any such information was forwarded in writing. It is, therefore, rightly contended that there is non compliance of Section 42(2) of NDPS Act. As observed by the Apex Court in the case of Sarija Banu (supra), the issue with regard to non compliance of Section 42 of NDPS Act can be considered at the stage of bail. I have also perused the decisions of this Court relied upon. The Order is downloaded from the DHC Server on 25/01/2024 at 01:22:00 by learned advocate for Applicant wherein this Court had granted bail for non compliance of Section 42 of NDPS Act."
8. In view of the aforementioned judgments, this Court agrees with the counsel DLSH010043382021 Page 34 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act for the Petitioner that provisions of Section 42 of NDPS Act have been followed more in violation than in compliance. Admittedly HC Amit, was the recipient of first information but the secret information was reduced in writing by Insp. Rakesh on a mere hearsay. While the prosecution tends to rely on the entry lodged in CCTNS by Insp. Rakesh, to show compliance of Section 42 of NDPS Act, in my view, this cannot be considered as an action compliant with the mandate of the said provision inasmuch as this does not controvert the contention of the Petitioner that the first recipient of the information reduced the same in writing."
(emphasis supplied) d. It may be seen that in the aforesaid case, the secret information was received by HC Amit, who being an officer superior in rank to Constable was empowered u/s.42(1) of NDPS Act vide notification dated 14.11.1985, as reproduced above. However, in the present case, the information was received by Ct. Mohit (PW2) who is neither empowered by the aforesaid notification, nor can be authorised by an officer empowered u/s.41(2) to take action on the secret information, being a constable. Moreover, in that case the information was recorded by Inspector Rakesh on a mere hearsay, whereas in this case PW4 SI Monu Chauhan had himself talked to the secret informer in person. e. Therefore, the ratio laid down in the aforesaid case cannot apply to the facts of the present case, as in the present case, the first official empowered u/s.42 NDPS Act, who received the secret information is PW4 SI Monu Chauhan, who is the same person, who got DD No.6 Mark-T, lodged as regards the secret information. 31.2. Whether the secret information so received was required to be taken down in writing by PW4 in his own handwriting?
DLSH010043382021 Page 35 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act a. It was one of the arguments of the Ld. Counsel for the accused that PW4 SI Monu Chauhan, who received the secret information from secret informer did not record or take down the said secret information in writing in his own handwriting, as per the requirement of Sections 41 as well as 42 of the NDPS Act.
b. It is found that Section 41(2) of NDPS Act uses the words "information given by any person and taken in writing" and Section 42 also uses similar phrase i.e. " information given by any person and taken down in writing".
c. In view of the said phrase used in the two sections, the legal issue that has been raised before the Court is: Whether the information is to be taken down in writing by the concerned official in his own handwriting?
From the bare perusal of the sections and the aforesaid phrases, it is clear that it is not mentioned either in Section 41 or in Section 42 of NDPS Act that the information so received by the empowered official is to be recorded by the empowered official in his own handwriting. If the intention of the legislature was that the receiver of the information should take down the information in his own handwriting then it could have very well stated so, while framing the provisions of NDPS Act. However, from the reading of the sections, it seems that the intention of the legislature was to ensure that any action u/s.41(2) or u/s.42(1) of the NDPS Act is taken by the empowered officer, only after the information, so received, is recorded on the paper. What the DLSH010043382021 Page 36 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act legislature intends is that the powers under the said sub-section should not be used merely on the basis of oral statements. If the intention of the legislature had been that the said information should be recorded by the empowered/authorised officer in his own handwriting, then the aforesaid phrases could have been easily worded as "information given by any person and taken in writing by such officer" and Section 42 also uses similar phrase i.e. "information given by any person and taken down in writing by such officer". However, if the legislature has not used the said phrase and has not specifically stated that it is such officer himself, who should take down the information in his own handwriting, then it would not be appropriate for this Court to read the said sections in such manner. 31.3. Whether the secret information taken down in writing vide DD No.6 Mark T was produced before immediate official superior by PW4 within 72 hours as per mandate of section 42(2) of NDPS Act? a. As per record, DD No.6 Mark T only bears the signature of PW7, that too, on the attestation. The said document does not bear the signatures of PW4 SI Monu Chauhan i.e. the First IO, who got the said DD entry lodged. There is no such document on record, which shows that the copy of the said DD entry was placed before the SHO/Inspector and was signed by him within 72 hours. b. As stated earlier, PW7 Insp. Heera Lal in his evidence never deposed that copy of DD No.6 was produced before him by PW4 and that he forwarded the same to the Office of ACP.
DLSH010043382021 Page 37 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act c. Accordingly, the prosecution has failed to prove that the DD entry No.6 Mark T, which was recorded as regards the secret information was ever produced by PW4 before Inspector / PW7 or was sent to the office of and seen by the ACP Operation Cell/PW8. 31.4. Whether the directions given by PW8 to PW4 SI Monu Chauhan to proceed with the raiding team, amounts to authorization to PW4 to conduct raid under section 41(2) of NDPS Act?
a. It may be noted that PW8 Sanjeev Kumar, ACP Operation Cell, being ACP is a gazetted officer in Delhi Police. As per Section 41(2) NDPS Act r/w. Notification dated 14.11.1985, the said officer is empowered u/s.41(2) of NDPS Act to authorise any officer subordinate to him, but superior in rank to Peon, Sepoy or a Constable to take action u/s.42 NDPS Act. The said notification is reproduced as under :
FINANCE (GENERAL) DEPARTMENT NOTIFICATIONS Delhi, the 14th November, 1985 No. F.10(76)/85-Fin. (G)i In exercise of the powers conferred by sub-section (2) of section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) read with the Government of India, Ministry of Home Affairs, New Delhi Notification No. S.O. 818(E) dated 8-11-1985 the Administrator of the Union Territory of Delhi is pleased to empower all Gazetted Officers of the following Departments of Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable, under Chapter IV of the said Act or that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place within the Metropolitan Area of Delhi, to authorise any officer subordinate to him but superior in rank to a Peon, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building DLSH010043382021 Page 38 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act conveyance or places :
1. Revenue Department.
2. Drugs Control Department
3. Excise Department, and
4. Police Department.
b. From the testimony of PW4, as well as the testimony of PW8 as mentioned above, it is clear that both the said witnesses talked to each other over telephone after the raiding team was constituted by PW7 / Insp. Heera Lal. PW4 did not mention in his examination-in- chief that he had informed PW8 that the secret information has been recorded vide DD No.6 and PW8 also did not depose w.r.t. the fact that he was informed by PW4 that the secret information was recorded vide DD No.6. In absence of any information to PW8 ACP to the effect that the secret information has been taken down in writing, any authorisation u/s.41(2) of the NDPS Act is beyond the provisions of the said section. Section 41(2) of the NDPS Act categorically provides that the empowered Gazetted Officer may authorise his subordinate only if "he has reasons to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act". The authorisation under the said section is permissible only after the secret information so received is "taken in writing". c. From the deposition of PW4 and PW8, it is clear that PW8 was not aware at the time of giving the authorisation u/s.41(2) of NDPS Act that the secret information so received by PW4 had already been taken down in writing or not. Accordingly, the 'reason DLSH010043382021 Page 39 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act to believe' as required u/s.41(2), on the basis of a secret information taken in writing, cannot be said to have been duly formed in the present case in absence of the knowledge of PW8 that the secret information had been taken down in writing vide DD No.6. It may further be noted that DD No.6 was marked as Mark T during the testimony of PW4 and the original DD entry was never produced before the Court during the prosecution evidence. DD No.6 Mark T is the true handwritten copy of the said DD entry, which is neither signed or proved by the person, who had actually written DD No.6, nor by PW4 SI Monu Chauhan.
d. Thus, there is substance in the argument of Ld. Counsel for accused, that PW8 Sanjeev Kumar, ACP Operation Cell had not duly authorised PW4 SI Monu Chauhan u/s.41(2) NDPS Act to conduct proceedings i.e. search, seizure and arrest u/s.42(1) NDPS Act. e. In light of the aforesaid discussion, the Court comes to the conclusion that PW8 ACP Sanjeev Kumar (gazetted officer) did not form his reason to believe, on the basis of a secret information that had been taken in writing, before authorising PW4 SI Monu Chauhan u/s.41(2) NDPS Act and the power to authorise has, therefore, not been exercised as per the provisions of Section 41 (2) of NDPS Act to take action on the secret information u/s.42(1) of NDPS Act. 31.5. Whether in absence of due authorization by ACP, the raid conducted by PW4 would stand vitiated or whether he was otherwise authorized to conduct raid even in absence of such authorization?
DLSH010043382021 Page 40 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act a. The answer to that question would have been simple in absence of another notification dated 14.11.1985, which is reproduced as under :
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of 1985) read with the Government of India, Ministry of Home Affairs Notification No.S.O. 818(E) dated the 8th November, 1985 the Administrator of the Union territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi, between sunrise and sunset, to :
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance; and
(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act relating to such drug or substance;
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
DLSH010043382021 Page 41 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act b. As per the aforesaid notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW7 SI Yogesh Kumar, being Sub-Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act.
c. As per the aforesaid notification and bare reading of Section 42(1), it is clear that PW4 SI Monu Chauhan, being Sub-Inspector in Delhi Police was not required to obtain any authorisation from PW8 ACP Sanjeev Kumar before proceeding to take action u/s.42(1) of NDPS Act on the secret information. Therefore, the argument that PW4 SI Monu Chauhan was not competent to conduct search, seizure and arrest as PW8 ACP Sanjeev Kumar had not specifically authorised PW4 SI Monu Chauhan to conduct search, seizure and arrest is found to be devoid of merits.
Whether Section 43 NDPS Act applicable?
32. It may however be noted that the recovery in the present case was made from the accused while they were present on a public road near Tikona Park, in front of H.No.28/44A, Kasturba Nagar, Delhi. For a recovery made from a suspect in a public road (gali/alley), instead of section 42, section 43 comes into play, which is reproduced as under:
DLSH010043382021 Page 42 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act
43. Power of seizure and arrest in public place.--
Any officer of any of the departments mentioned in section 42 may --
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence 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 evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed 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 possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation:-- For the purposes of this section, the expression "public place"
includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
33. In State of Punjab Vs Baldev Singh AIR 1999 SC 2378, Hon'ble Constitution Bench of the Apex Court observed as under:
"The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful."
(emphasis supplied)
34. In Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence (2002) 8 SCC 7 Full Bench of Hon'ble Apex Court DLSH010043382021 Page 43 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the Appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:
"In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non- compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant."
35. In Krishna Kanwar (Smt.) Alias Thakuraeen v. State of Rajastha (2004) 2 SCC 6081 a Division Bench of Hon'ble Apex Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the Appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:
"Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Section 42 deal with "building, conveyance or enclosed place"
whereas Section 43 deals with power of seizure and arrest in public place. Under sub- section (1) of Section 42 the method to be adopted and the procedure to be followed have been laid down. If the concerned officer has reason to believe from personal knowledge, or information given by any person and has taken down in writing, that any narcotic drugs or substance in respect of which an offence punishable under Chapter IV of the Act has been committed or any other articles which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset, do the acts enumerated in clauses (a), (b), (c) and (d) of sub-section (1).The proviso came into DLSH010043382021 Page 44 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act operation if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escaped offender, he may enter and search such building, conveyance or enclosed place any time between sunrise and sunset after recording grounds of his belief. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place."
(emphasis supplied)
36. In Directorate of Revenue and Ors. vs. Mohammed Nisar Holia 2007 INSC 1226 Hon'ble Apex Court observed:
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under Sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need DLSH010043382021 Page 45 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not places."
(emphasis supplied)
37. In S K. Raju vs. State of West Bengal 2018 INSC 780, Full Bench of Hon'ble Apex Court categorically observed that Section 43 is attracted in cases where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. Paras-7 and 8 of the said judgment are reproduced as under :
DLSH010043382021 Page 46 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act "7. An empowered officer Under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an Article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
8. The Appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application."
(emphasis supplied)
38. As per the aforesaid judgments, in case of detention and search of any suspect in any public place, section 42 does not apply, rather section 43 is applicable and as such, there is no requirement to take down in writing the secret information as per section 42(1) and sending the same to the immediate official superior within 72 hours, as per the mandate of section 42(2) of NDPS Act.
39. In the present case, the secret information was received at 1.00 p.m., based on which PW7 Insp. Heera Lal constituted raiding team and PW4 alongwith raiding team left the Police Station at about 2.00 p.m. The officials reached the spot i.e. Kasturba Nagar Shamshan Ghat, MCD Park, at about 2.10 p.m. There they took position and at about 2.35 p.m., both the accused were seen coming from the house in front of the gate of the park and they were pointed out by the secret informer, upon which they were apprehended on a public road, adjacent to the MCD Park / Tikona Park. The members of the raiding team apprehended both the accused persons in the gali / public road itself DLSH010043382021 Page 47 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act and as such the recovery was effected from accused Rajni in the gali / public road and not from any building, conveyance or concealed place. The Gali, being a public road/alley, the recovery in the present case was affected at a public place, allegedly from the possession of the accused persons.
40. As per section 43 of NDPS Act, any officer empowered u/s.42 may detain and search any suspect, whom he has reasons to believe to have committed offence under NDPS Act and also seize any narcotic drug or psychotropic substance, if so found in such public place. In this case, it was PW4 SI Monu Chauhan, who received the secret information. As stated earlier, PW4 SI Monu Chauhan, being a Sub-Inspector in Delhi Police, is empowered u/s.42 NDPS Act vide notification dated 14.11.1985. As per the said notification published in Delhi Gazette on 14.11.1985, all the police officials of Delhi Police superior in rank to a Constable have been empowered by the Administrator to exercise powers u/s.42(1) NDPS Act. According to the said notification r/w. Section 42(1) NDPS Act, PW4 SI Monu Chauhan, being a Sub-Inspector in Delhi Police was empowered to conduct entry, search, seizure and arrest without any warrant or authorisation from a Magistrate / Officer competent to issue warrant and authorisation u/s.41 NDPS Act. As per section 43, in view of the aforesaid notification, PW4 SI Monu Chauhan was also empowered to detain and search any suspect found in any public place, whom he had reason to believe to have committed an offence punishable under NDPS Act. Therefore, as per Section 43 of the NDPS Act, PW4 was competent to take action on the secret information so received at 1.00 p.m., without even recording the secret information in writing (Mark T) DLSH010043382021 Page 48 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act and without forwarding the same to the immediate official superior i.e. to PW7 Insp. Heera Lal and PW8 ACP Sanjeev Kumar.
41. In view of the aforesaid observations, the argument of the Ld. Counsel that the secret information was not recorded on CCTNS does not assume significance.
42. In the opinion of the Court, Section 43 NDPS Act is applicable in the present case, as the recovery was made in a public place (gali/alley), and its provisions were duly complied with in the facts of the present case. Discussion on the point of compliance of Section 50 of NDPS Act
43. 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) DLSH010043382021 Page 49 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act
44. As per prosecution case, after apprehension of the accused persons, they were served with the mandatory notice under Section 50 of the NDPS Act and only after their refusal to avail their legal rights, their search was carried out. However, in their statements recorded under Section 313 Cr.P.C., in answer to question no. 6, the accused persons denied that they were given notice u/s.50 NDPS Act and that their refusal was recorded on the same.
45. In view of the said claim of the accused, it is to be seen whether or not compliance of Section 50 of the NDPS Act was properly made before search of the accused?
46. PW4 SI Monu Chauhan in his deposition categorically stated that after the accused persons were apprehended, they were informed about their legal rights that they can get themselves searched in the presence of any Gazetted Officer and Magistrate or that they can be taken to Gazetted Officer and Magistrate for their search and before their search is conducted, they can search the members of the raiding team. PW4 prepared notice u/s.50 of NDPS Act in his handwriting and handed over the same to the accused persons, who refused to avail their legal rights and recorded their refusal on the carbon copies Mark X and Mark X1. Testimony of PW4 on this aspect is as under:
"At about 2.35 pm we saw that one lady along with one boy were coming from the house of front gate of the said park. he said lady was carrying one small pouch of white and purple colour in her hand. The secret informer gave a signal to me regarding the said lady and said boy and left the spot. Upon this signal I along with W/Ct. Deepshika went towards the said lady from one side and Ct Prince and Ct. Mohit went towards the said boy from other side. W/Ct. Deepshika apprehend the DLSH010043382021 Page 50 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act said lady and Ct. Mohit and Ct. Prince apprehended the said boy. I asked the name of the both the said persons and their name revealed as Rohit and Rajni.
We gave our introduction by saying that we are police officials and told about the secret information that we have received. I was carrying field test kit, weighing machine and IO kit with him.
Thereafter I apprised them for their legal right by saying that they can get themselves searched as well as search the Saiding team in the presence of any Gazetted officer or the Magistrate however accused persons refused to get themselves searched in the presence of any Gazetted officer or the Magistrate as well as to search the raiding team in the presence of any Gazetted officer or the Magistrate. I gave the notice under section 50 NDPS Act to the accused Rohit and the carbon copy of the same is already mark 'X'. The denial of the accused Rohit is recorded by the accused himself which is already encircled at 'Y'. I also put my signature at point E and E1. Accused Rohit put his signature at point C and C1 on the said notice.
I gave the notice under section 50 NDPS Act to the accused Rajni and the carbon copy of the same is already mark 'X1'. The denial of the accused Rajni is recorded by me which is already encircled at 'Y1'. Accused put her signature at point A and Al on the said notice. I also signed the said notice and it bears my signatures at point C and C1."
47. The witness was cross-examined as regards notice u/s.50 NDPS Act, however, in the cross-examination, the witness categorically denied the suggestions that signature of the accused persons were taken on blank papers and that they were subsequently converted into arrest memo, personal search memo. He also stated in the cross-examination that DD No.6 or DD No.7 was mentioned by him on the notice u/s.50 NDPS Act given to both the accused persons. The said portion of his cross-examination is found to be factually correct as it is noted that at the top of the notice u/s.50 NDPS Act Exs. P1 and P2, DD No.7 dated 24.03.2021 is mentioned. Nothing is found in his cross-examination to doubt the fact that the notices u/s.50 NDPS Act were not served upon the accused persons.
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48. The deposition of PW4 as regards compliance of Section 50 NDPS Act is further supported by deposition of PWs 1,2 & 3.
49. It is noted that all the four witnesses in their examination-in-chief categorically stated that the notices were served upon both the accused persons and that the reply to the notice was written by accused Rohit on the carbon copy in his own handwriting, whereas the denial of accused Rajni was recorded by PW4 SI Monu Chauhan and was signed by the said accused. The Court has gone through the cross-examination of these witnesses, but no material contradictions are found therein.
50. PW2 in his cross-examination stated that the FIR number was not mentioned on the notice u/s.50 NDPS Act, which is factually correct. PW2 and PW3 were unable to recall whether DD number was mentioned on the notice or not. However, there are no contradictions in the depositions of these four witnesses, which may create a doubt regarding the service of notice u/s.50 NDPS Act.
51. Further, as the accused persons have not categorically denied their signatures on the carbon copy of the notice Mark X and Mark X1 and merely stated that their signatures were obtained on blank papers, therefore, in absence of any kind of evidence to show that the signatures were actually obtained on blank papers, the presence of signatures of the accused on the carbon copy of the notice is further evidence of the fact that the notices were duly served upon the accused persons.
DLSH010043382021 Page 52 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act Issue as regards absence of word 'nearest' in the notice :
52. The notices u/s 50 NDPS Act have also been challenged by the Ld. counsel for the accused on the ground that the said notices Exs. P1 and P2 do not mention that the accused persons were informed that it is their right to be taken to 'nearest' Magistrate or Gazetted Officer for their search, if so required by them. Therefore, the notices are defective.
53. In this regard Ld. Counsel relied upon judgment titled Mohd. Jabir Vs. State (NCT of Delhi)2 2023 SCC Online Del 1827. However, the judgment in Mohd Jabir (supra) was challenged in appeal before the Hon'ble Apex Court in case titled as State of NCT of Delhi Vs. Mohd. Jabir {Crl. Appeal No.4921/2024 dated 02.12.2024}. In the said judgment Hon'ble Apex Court, observed as under:
"It is obvious that the intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Use of the expression "nearest" refers to the convenience as the suspect is to be searched. Delay should be avoided, as is reflected from the use of the word "unnecessary delay" and the exception carved in sub-section (5) to Section 50 of the NDPS 2 Relevant pars of the judgment:
"42. In the present case, section 50 notice which was served upon the applicant reads as under: "You have the legal right to get yourself searched in the presence of any Gazetted Officer or Magistrate."
43. In my opinion, there is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate
44. However, the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This, in my opinion is where the violation of section 50 lies.
45. It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50. .........
47. As is clear from the above, the emphasis on the word "nearest" is important since it ensures independence. In deviating from the provisions as laid down in section 50, the IO practiced a third option of having the search conducted by someone who was part of the operation of this particular alleged drug seizure. The IO practiced a third option which is unknown to law."
DLSH010043382021 Page 53 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act Act. Nothing more is articulated and meant by the words used, or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning given by the High Court in the impugned judgment, which states that use of the word 'any' does not satisfy the mandate of the 'nearest' Gazetted Officer and, hence, the respondent, Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to the authorized person in the raiding."
(emphasis supplied)
54. Therefore, the absence of the word 'nearest' in the notice under section 50 NDPS Act does not adversely affect the case of the prosecution.
55. In view of the testimonies of above witnesses, namely, PW1, PW2, PW3 and PW4, the prosecution proved that the accused were duly served with the notice under Section 50 of the NDPS Act before their bodily search and that the provisions of Section 50 NDPS Act were duly complied with. Issue as regards applicability of Section 50 NDPS Act to accused Rajni
56. It may be noted that, though the prosecution proved beyond reasonable doubt that the notice u/s.50 NDPS Act was duly served upon accused Rajni, however, no contraband was recovered from her bodily search, rather, the contraband was found to be in a purple-white colour cloth bag, which accused Rajni was carrying. Therefore, another question that arises before the court is: Whether compliance of Section 50 NDPS Act was required in the present case qua accused Rajni as the recovery was effected from the purple-white colour cloth bag, being carried by accused Rajni and not from the person of accused Rajni?
57. It may be noted that from the bodily search of the accused Rajni, no contraband was recovered. The contraband was found in the purple-white DLSH010043382021 Page 54 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act colour cloth bag, being carried by the accused Rajni. As regards recovery made from bag, briefcase or vehicle of the suspect is concerned, it has been observed by the Hon'ble Apex Court that the provisions of section 50 NDPS Act do not apply to recoveries other than those made from the person of the accused.
58. In this regard, Hon'ble Apex Court in case titled as State of Himachal Pradesh and Ors. vs. Pawan Kumar and Ors. 2005 INSC 193 3, has observed as under:
"8. The dictionary meaning of the word "person" is as under :
Chambers's An individual; a living soul; a human Dictionary : being;
b: the outward appearance, & c : bodily form; a distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of.
Webster's International Dictionary An individual human being; a human Third New: body as distinguished from an animal or thing; an individual having a specified kind of bodily appearance: the body of a human being as presented to public view normally with its appropriate coverings and clothings: a living individual unit a being possessing or forming the subject of personality. Black's Law In general usage, a human being (i.e. natural person), though Dictionary: by statute term may include labour organizations, partnerships, associations, corporation.
Law The expression 'person' is a noun according to grammar and it Lexicon: means a character represented as on the stage, a human being;
by P. a self-conscious personality."
Ramanatha
Aiyar
3
Three Judges Bench
DLSH010043382021 Page 55 of 92
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U/s.21(b) NDPS Act
9. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person.
Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.
10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type DLSH010043382021 Page 56 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."
(emphasis supplied)
59. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 Cr.L.J 1384, four gunny bags were found in an auto rickshaw which the suspect was driving and there was no other person present. The argument based on non- compliance of Section 50, as explained in the case of Baldev Singh 4, was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused.
60. In Madan Lal v. State of H.P. MANU/SC/0599/2003 it was held that Section 50 would apply in the case of search of a person as contrasted to search of vehicles, premises or articles.
4State of Punjab vs. Baldev Singh and Ors. (21.07.1999 - Constitution Bench) : MANU/SC/0981/1999 :
1999 INSC 282.DLSH010043382021 Page 57 of 92 SC 199/2021
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61. In Gurbax Singh v. State of Haryana 2001 Cr.L.J 1166, suspect got down from a train carrying a Katta (gunny bag) on his shoulder. It was held that Section 50 was not applicable.
62. In State of Punjab v. Makhan Singh MANU/SC/0181/2004, the suspect was apprehended while alighting from a bus with a tin box in his hand in which contraband was found. The High Court acquitted the accused on account of non-compliance of Section 50. Hon'ble Apex Court while holding that Section 50 will not apply, reversed the judgment of the High Court and the accused was convicted.
63. In V. Kanhaiya Lal v. State of M.P. (2000)10 SCC 380, one kg. of opium was found in a bag which was being carried by the suspect. Argument seeking acquittal on the ground of noncompliance of section 50 NDPS Act was rejected on the ground that it was not a case of search of the person of the accused.
64. In Birakishore Kar v. State of Orissa AIR 2000 SC 3626, suspect was found lying on a plastic bag in a train compartment. Argument that compliance of section 50 was mandatory was rejected on the ground that the accused was sitting on the plastic bag and it was not a case of the search of the person of the accused.
65. In Krishna Kanwar v. State of Rajasthan 2004:INSC:61 it was held that Section 50 applies where search has to be in relation to a person as contrasted to search of premises, vehicles, articles or bag.
66. In Sarjudas v. State of Gujarat 2000 Cr.L.J 509 suspect were riding a scooter on which a bag was hanging in which charas was found. Section 50 DLSH010043382021 Page 58 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act was held not applicable as it was not a case where the person of the accused was searched.
67. In Saikou Jabbi v. State of Maharashtra MANU/SC/0991/2003, heroin was found in a bag being carried by suspect. It was held that Section 50 was not applicable as it applies to search of a person.
68. It may be argued that in a case where the accused as well as the bag she is carrying, is searched, compliance of Section 50 is essential in view of judgment of the Hon'ble Apex Court in State of Rajasthan Vs Parmanand & Anr, (2014) 2 RCR (Criminal) 40 ; Dilip & Anr. Vs. State of MP, AIR 2007 SC 369 and Union of India Vs. Shah Alam, AIR 2010 SC 1785. The relevant paras i.e paras no.9 to 12 of the judgment in Parmanand (supra) are reproduced as under :
"9. In this case, the conviction is solely based on recovery of opium from the bag of Respondent No. 1-Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra MANU/SC/0662/1999 : (1999) 8 SCC 257, this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar MANU/SC/0272/2005 : (2005) 4 SCC 350, three-Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person"
occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by Respondent No. 1-Parmanand.
DLSH010043382021 Page 59 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
10. In Dilip and Anr. v. State of Madhya Pradesh MANU/SC/8711/2006 :
(2007) 1 SCC 450, on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.
11. In Union of India v. Shah Alam MANU/SC/1065/2009 : (2009) 16 SCC 644, heroin was first recovered from the bags carried by the Respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the Respondents on that ground.
12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent No. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
(emphasis supplied)
69. However, in this regard, the Court would like to refer to a Full Bench decision of the Hon'ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019 INSC 1145. In the said case, the recovery was made from Qualis car 5, in which the accused persons were travelling and the question regarding the 5 Like the recovery has been made from the bag being carried by accused Rajni in the present case.
DLSH010043382021 Page 60 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act applicability of Section 50 NDPS Act, in case of such recovery came up for consideration before the Hon'ble Apex Court. Hon'ble Apex Court while referring to the Constitution Bench Decision in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and while noting the decision in Dilip (supra) categorically overruled the law laid down in Dilip (supra), while holding that the law laid down in the said case is opposed to the law laid down by the Constitution Bench in Baldev (supra). Paras 16 to 19 of the judgment are reproduced as under :
"16. As regards applicability of the requirements Under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based "only" on the basis of possession of an illicit Article recovered from personal search in violation of the requirements Under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the Accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with . In our view, the decision of this Court in said judgment in Dilip's case is not correct DLSH010043382021 Page 61 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act and is opposed to the law laid down by this Court in Baldev Singh and other judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by Accused-Baljinder Singh with the other Accused accompanying him, their presence and possession of the contraband material stood completely established."
70. In view of the law laid down in Baldev (supra) and Baljinder (supra) as well as other judgments cited above, it is held that the compliance of Section 50 NDPS Act is not mandatory in the present case w.r.t. accused Rajni, as the recovery was effected from the purple-white colour cloth bag, being carried by accused Rajni and not from her bodily search.
71. Based on the testimonies of witnesses PW1, PW2, PW3 & PW4, it has been established that the accused persons were duly served with notice under Section 50 of the NDPS Act before their bodily search was conducted and there was no violation of this mandatory provision. Additionally, according to the observations in the referenced judgments, compliance with Section 50 is not required for recovery from the purple-white colour cloth bag, being carried by accused Rajni.
Discussions on non-joining of the public witnesses
72. During course of arguments, Ld. Defence Counsel submitted that the prosecution case is highly doubtful as no public witness has been joined during the entire investigation and the prosecution case solely rests on the testimonies of police witnesses who are not reliable and creditworthy being interested witnesses. Ld. Counsel submitted that the recovery has been effected from a public place surrounded by residential and commercial area, DLSH010043382021 Page 62 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act but despite that, not even one public witness was joined during the course of investigation and no notice was served to public persons, who refused to join investigation.
73. 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 that PW4 SI Monu Chauhan, IO made sincere efforts to join public witnesses, but none agreed.
74. In this regard, PW4 deposed that he made efforts to join 4-5 public persons after he alongwith raiding team reached the spot i.e. near Kasturba Nagar Shamshan Ghat, MCD Park, but none agreed. Even the other members of the raiding team i.e. PW1, PW2 and PW3 stated that efforts were made by the IO to join 4-5 public persons, but none agreed to join the investigation. In the cross-examination, the witnesses also admitted the fact that no notice was served upon the public persons, who had so refused to join the investigation.
75. The Court while considering as to why the public persons refuse to join recovery proceedings, needs to consider the perspective of an ordinary individual who may not be familiar with legal procedures, may fear retaliation from drug traffickers in cases where they serve as a witness, and may face significant inconvenience without any personal gain, instead possibly losing time, money, and peace of mind. Due to these challenges, it is uncommon for people to volunteer as witnesses, especially in cases involving drugs, trafficking, and smuggling, which often involve organized criminal groups/cartels.
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76. Therefore, if efforts to include a public witness have been documented but were unsuccessful, the absence of an independent witness does not undermine the prosecution's case. In this regard, this court is supported by the case law i.e. Ajmer Singh vs. State of Haryana 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 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."
77. 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, Criminal AIRONLINE 2012 SC 728, 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 DLSH010043382021 Page 64 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act witnesses by the accused in defence and we also did not find any infirmity in the prosecution case."
78. Furthermore, the police officials are considered to be equally competent and reliable witnesses and their testimony 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 discarded merely on the ground that they belong to the police force and either interested in investigating or the prosecuting agency'.
79. Further, it is also not uncommon that these days people are generally reluctant to become part of investigation. In this regard, the Hon'ble High Court in the case of Bheru Lal and Ors. vs. State MANU/DE/3428/2016 :
2016:DHC:8131 while observing that recovery cannot be doubted for the reason of non-joining of public witness held as under:-
"19. Dealing with a similar contention 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, the 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 MANU/SC/0503/1988 : 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."
20. In 'Ramjee Rai and others v. State of Bihar', (2006) 13 SCC 229, it has been opined as follows:
DLSH010043382021 Page 65 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act "26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."
21. Resultantly, no adverse inference can be drawn against the prosecution on account of the inability of the raiding party to join public witnesses. It is not as if no effort was made by them in this regard. They did make efforts at several places but no member of the public agreed to be associated for various reasons.."
80. 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 it is clear that sufficient efforts were made by PW4 SI Monu Chauhan to join public witnesses in investigation. Moreover, no animosity between the accused persons 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.
Discussion on the point of recovery of contraband
81. As per prosecution case, on 24.03.2021, PW2 Ct. Mohit received secret information at ANTF Office at about 1.00 p.m. He produced secret informer before PW4 / IO, who produced him before PW7/Insp. Heera Lal. Insp. Heera Lal constituted raiding team, including PW1 Ct. Prince, PW2, PW3 W/Ct. Deepshikha and PW4. They reached the spot at about 2.10 p.m., where both the accused persons were pointed out by the secret informer and the accused persons were apprehended by the raiding team. Thereafter, notice u/s.50 NDPS Act was given to both the accused persons, but both the accused persons declined to exercise their legal rights. By that time, PW8 DLSH010043382021 Page 66 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act ACP Sanjeev Kumar also arrived at the spot. The cloth pouch being carried by accused Rajni was found containing one polythene bag, which was found containing brown coloured powder. The said substance was tested with field testing kit and found positive for smack. The substance was weighed on weighing machine and found to be 15 gms. From bodily search of the accused Rajni, nothing was recovered. However, from bodily search of accused Rohit, one small polythene pouch was recovered from the back pocket of his jeans, which too was found containing 20 gms of substance, that was positive for heroin on the field testing kit. Both the said recovered substances were converted into two different pullandas Mark A and Mark B respectively and sealed with the seal of MC by PW4 SI Monu Chauhan. Thereafter, the said two pullandas were seized vide seizure memo Ex. PW1/A, which bears the signatures of PW8 / ACP, PW2 Ct. Mohit, PW1 Ct. Prince and PW3 W/Ct. Deepshikha. The seal after use was handed over to PW2 and seal handing over memo Ex. PW1/F was prepared.
82. In order to prove the aforesaid recovery, the prosecution has examined SI Monu Chauhan as PW4.
83. PW4 SI Monu Chauhan, as regards recovery, testified as under on 30.04.2024 :
"On 24.03.2021, I was posted as SI at ANTF Shahdra. On that day at about 1.00 pm I was present at the office of ANTF Shahdara wherein one secret informer came and shared one secret information to Ct. Mohit who was already present in the office. The secret informer stated that there are two persons namely Rohit and Rajni who are residing in Kasturba Nagar and do the work of selling smack / heroin near Tikona park. The above said information was shared to me by Ct. Mohit at around 1.10 pm. I also met the informer and enquired him about the secret information.DLSH010043382021 Page 67 of 92 SC 199/2021
STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act .....
We reached the spot i.e. Kasturba Nagar Shamshan Ghat, MCD Park via Ginger Hotel at about 2.10 pm. Ct. Prince parked the above mentioned vehicle on the side of the road.
I gave the information to ACP Sh. Sanjeev Kumar Sahai and asked 4-5 public persons to join the investigation but none agreed to join the investigation. Ct. Prince along with Ct. Mohit went towards MCD Tikona park, Kasturba Nagar and I along with W/Ct Dipshika and informer went towards the other side of the park. At about 2.35 pm we saw that one lady along with one boy were coming from the house of front gate of the said park. The said lady was carrying one small pouch of white and purple colour in her hand. The secret informer gave a signal to me regarding the said lady and said boy and left the spot. Upon this signal I along with W/Ct. Deepshika went towards the said lady from one side and Ct Prince and Ct. Mohit went towards the said boy from other side. W/Ct. Deepshika apprehend the said lady and Ct. Mohit and Ct. Prince apprehended the said boy. I asked the name of the both the said persons and their name revealed as Rohit and Rajni.
We gave our introduction by saying that we are police officials and told about the secret information that we have received. I was carrying field test kit, weighing machine and IO kit with him.
Thereafter I apprised them for their legal right ..... I gave the notice under section 50 NDPS Act to the accused Rajni and the carbon copy of the same is already mark 'X1'. The denial of the accused Rajni is recorded by me which is already encircled at 'Y1' . Accused put her signature at point A and Al on the said notice. I also signed the said notice and it bears my signatures at point C and C1.
At about 2.55 pm, I gave the information to ACP Sh. Sanjeev Kumar and he reached at the spot at about 3.10 pm. Both the accused persons were produced before the ACP.
On the instruction of ACP, I checked the said cloth pouch by opening the same it was found containing one polythene bag. The said polythene bag was opened and it was containing brown colour powder. I checked the said powder with the help of field test kit and it was found to be smack. I weighed the said contraband i.e. smack with the help of weighing machine and it was found 15 grams of smack recovered from the accused W/Ct. Deepshika conducted the personal search of accuse Rajni but nothing was recovered from her possession. I also conducted the personal search of accused Rohit and found one small polythene pouch from his back side pocket of his wearing DLSH010043382021 Page 68 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act jeans. I opened the said polythene and it was checked with the help of field testing kit and found as smack. I weighed the said contraband i.e. smack with the help of weighing machine and it was found 20 grams of smack. Both the above mentioned recovered contraband were sealed and converted into two different pullandas and sealed the pullanda with the seal of MC by me. The same was marked as A and B. The seizure memo of the pullandas is already Ex.PW1/A which bears my signature at point D. The seizure memo also bears the signature of ACP, Ct. Mohit, Ct. Prince and W/Ct. Deepshika. The seal after use was handed over to Ct. Mohit. The seal handing over memo is already Ex.PW1/F which bears my signature at point D."
84. The witness was cross-examined on 16.07.2024. However, nothing material came forth in his cross-examination, so as to doubt his deposition as regards the aforesaid recovery. The witness in his cross-examination categorically denied the suggestion that the case property was tampered with, or that the signatures of the accused were taken on blank papers, which were subsequently filled and converted into arrest memos and personal search memos. He further denied the suggestion that all the writing work was done at the PS and that the accused persons were falsely implicated in this case in view of their previous criminal involvements.
85. It is found that PW4 in his cross-examination reiterated the same timeline of events, as mentioned in his examination-in-chief and no contradiction in this regard was found in the cross-examination. Rather, the witness supported his examination-in-chief, in the cross-examination.
86. Ld. Counsel for the accused pointed out that the said witness stated that the house of accused persons was of green colour and was a two storeyed house. He stated that besides the said witness, no other witness could specify the colour of the house of the accused persons. However, that by itself does not mean that this witness deposed falsely regarding the colour of the house. It DLSH010043382021 Page 69 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act may be noted that while PW2 could not recall the colour of the house, he specifically mentioned that "the house was on ground floor and first floor" , which is in line with the deposition of this witness as he too stated that the said house was a two storeyed house.
Therefore, no material contradiction was found in the cross- examination of this witness (PW4).
87. The testimony of this witness is further corroborated by the depositions of PW1 Ct. Prince, PW2 Ct. Mohit, PW3 W/Ct. Deepshikha as well as PW8 ACP Sanjeev Kumar.
88. In his arguments, the Ld. Counsel submitted that the prosecution witnesses failed to tell the make, brand and dimension of the weighing machine, which was used to weigh the contraband at the spot. However, the said argument is found to be contrary to record as PW4 SI Monu Chauhan in his cross- examination categorically mentioned that the weighing machine was of make 'Dr. Trust' and was of black colour. Therefore, the make and colour of the machine was disclosed by the IO / PW4 in his cross-examination. It may be noted that the weighing machine was carried by the IO and for that reason, he could recall its make and colour. As far as the other witnesses are concerned, as they were only witness to the proceedings, therefore, they may not have consciously noted the colour, make and weighing capacity of the machine, because of which they were unable to recall the same, when question in this regard was put to them during their cross-examination.
89. Ld. Counsel for the accused submitted that as per the charge-sheet, the raiding staff members kept their mobile phones in the office before leaving DLSH010043382021 Page 70 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act for the spot, but PW4 and PW8 testified that PW4 called PW8 (ACP) telephonically at 2.55 p.m. to inform about the apprehension of the accused persons and to come at the spot for compliance of Section 50 NDPS Act.
The said submission of the Ld. Counsel is found correct on the extent that in the charge-sheet, it is mentioned that PW4 SI Monu Chauhan had directed the other members of the raiding team to keep their mobile phones in the office. However, it is nowhere mentioned in the charge-sheet that PW4 SI Monu Chauhan had also kept his mobile phone at the office before departing for the spot. Accordingly, the deposition of PW4 that he called PW8 / ACP after leaving the PS is not contrary to the contents of the charge-sheet.
90. Ld. Counsel for the accused submitted that none of the recovery witnesses stated as to besides the contraband, what else was recovered from the possession of the accused persons during their bodily search.
It may be noted that the recovery witnesses were witness to bodily search of the accused persons, as the bodily search is carried out only for the purpose of the recovery of the contraband. The personal search of the accused persons after their arrest was conducted vide memo Ex. PW1/B and Ex. PW6/2, wherein it is mentioned that from the possession of accused Rohit, besides original notice u/s.50 NDPS Act, Rs.900/- were also found. Thus, the aforesaid argument of the Ld. Counsel is found to be devoid of merits.
DLSH010043382021 Page 71 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
91. Ld. Counsel for the accused submitted that PW8, despite being senior police official, could not tell as to how many police officials in raiding team were in police uniform and how many were in plain clothes.
The said submission is found to be correct, as PW8 in his cross- examination stated that he could not recall as to how many police official were in civil dress or in uniform. However, it may be noted that the recovery was effected in the year 2021, whereas the said witness was examined more than three years later in November 2024, hence, minor details like whether the witnesses were in uniform or civil dress, which is generally not so consciously noted, may have escaped the memory of PW8 and such, he failed to remember these facts when he deposed in November 2024 in the Court.
92. Ld. Counsel for the accused submitted that despite the alleged recovery having been made at around 2.30 p.m. and despite the lodging of the FIR at 2.35 p.m., arrest of accused Rajni was shown to have been done at 12.30 a.m. on the intervening night of 24-25.03.2021.
As far as the said argument is concerned, it may be noted that both PW12 SI Mamta and PW13 SI Narender stated in their examination-in-chief that accused Rajni was arrested in the night for the reason that PW12 alongwith PW4 went to the residence of Ld. MM Sh. Mayank Mittal for obtaining permission to arrest accused Rajni and after the said permission was granted by the Ld. MM, they again came in the office, where the accused was arrested vide memo Ex. PW6/1 at 12.30 a.m. (midnight) of 25.03.2021. It may be noted that accused Rohit was arrested at 11.15 p.m. DLSH010043382021 Page 72 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act after the registration of FIR which was done at 7.12 p.m. (and not at 2.35 p.m.).
93. Ld. Counsel for the accused submitted that PW4 SI Monu Chauhan stated that PW1 Ct. Prince left for the PS at about 6.15 p.m., whereas as per PW10 ASI Kailash, Duty Officer, PW1 Ct. Prince came to him at around 7.12 p.m., despite the fact that the spot from where the recovery was made, is hardly at a 10 minutes distance from the PS. The said argument is found to be devoid of merits as it is noted that in the rukka Ex. PW4/A, the time of departure is mentioned as 6.25 p.m. and in the FIR, the time of arrival is mentioned as 6.55 p.m. Thus, as per the said document, PW1 took 30 minutes in reaching the PS during evening time, which is rush hours / office hours and as such, the said time taken by PW1 in reaching the PS cannot be said to be excessive.
94. The accused in their statements recorded under Section 313 Cr.P.C. claimed to be innocent and alleged that they were falsely implicated, however, they did not mention any reason whatsoever for their false implication. No suggestion in this regard was given to any of the witnesses during their cross-examination. The accused neither in their statements 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 them in the present case. Furthermore, till date the accused have not raised any protest against their alleged false implication which shows that they have taken this plea for the sake of plea and there is no substance in it.
DLSH010043382021 Page 73 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
95. It was one of the arguments of the Ld. Counsel for accused that PW8 ACP Sanjeev Kumar is not an independent witness as PW4 SI Monu Chauhan and PW8 Sanjeev Kumar have categorically deposed that the secret information was shared by PW4 with PW8. However, the said argument is devoid of merits for the reason that Section 41(2) NDPS Act categorically states that an officer empowered u/s.41(2) NDPS Act, "may authorise any officer subordinate to him", which means that the empowered officer of a particular department can only authorise an officer of that department, who is subordinate to him, but is superior in rank to a peon, sepoy or constable. Therefore, the said argument does not hold water.
96. Ld. Counsel argued that no record could be produced by the investigating agency regarding issuing of a weighing machine, which is government property, to PW4. It could not be proved by the prosecution that the weighing machine used to weigh the contraband at the spot was on that day handed over to PW4 for the purpose of investigation.
On this aspect it may be pointed out that the limited purpose of a weighing machine is to weigh the contraband. It is different from a testing kit, which has chemicals to test the contraband. If the IO weighs the contraband on a weighing scale owned by him or arranged by him from any shop keeper, it does not make much difference, as the limited purpose of a weighing machine is to ascertain the weight of the contraband recovered at the spot. It may be argued that the weighing machine needs to be calibrated and therefore should be arranged from the office only, but, in the facts of the present case, where the weight of the contraband is in KGs and not grams, DLSH010043382021 Page 74 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act even that does not make much difference. On 24.03.2021 the weight of the contraband at the spot was found to be 15 gms (w.r.t. accused Rajni) and 20 gms (w.r.t. accused Rohit) and when it was produced for sampling proceedings before the Ld. Magistrate on 30.03.2021, its weight was found to be 15.40 gms and 20.48 gms. Thus, there is no major difference in the weight of the contraband found at the spot and as weighed at the time of sampling proceedings.
In this respect, the Court would like to refer to judgment titled as Bharat Amble Vs. The State of Chhattisgarh, Crl. Appeal No.250/25 of Hon'ble Apex Court, wherein it was observed by the Hon'ble Apex Court that hyper-technical view should not be taken by the Court while looking into discrepancies like slight difference in weight of the contraband as more often than not an officer in a public place would not be carrying a good scale with him. The relevant portion of judgment is reproduced as under :
"It is for the Courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and evidence adduced. At the same time, we may caution the Courts, not to be hyper- technical whilst looking into the discrepancies that may exist, like slight difference in weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt of false impression of illegal possession or recovery, or to overstate of inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seizure, the quality of evidence on record etc."DLSH010043382021 Page 75 of 92 SC 199/2021 FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act (emphasis supplied)
97. It was further submitted by Ld. Counsel for the accused that seal in the present case after use was handed over by PW4 to PW2 Ct. Mohit and not to any public person despite the fact that the place of recovery is located in residential and commercial areas. He submitted that tampering of the case property by the police officials of the raiding team after the seizure cannot be ruled out, as the seal remained in the possession of the members of raiding team after the alleged seizure of the contraband.
As far as the said argument is concerned, the issue as regards the joining of public witness has been separately discussed and it has been held while discussing the said issue that despite efforts having been made by PW4 SI Monu Chauhan to join public witness, no public witness joined the proceedings. It may be noted that as per the evidence of PW1, PW2, PW3 and PW4, the seal after use was handed over by PW4 to PW2 and the case property was handed over to PW1, who immediately left for the PS alongwith the case property and the rukka. Thus, the case property which was sealed at the spot with the seal of MC by PW4, was taken away from the spot by PW1, whereas the seal remained at the spot in the hands of PW2. Hence, in the opinion of the Court, the handing over of the seal after use by PW4 to PW2, does not create any doubt as regards tampering of the case property by PW1 or by any other member of the raiding team. Further, it may be mentioned that the issue regarding non-joining of public witnesses, has been dealt with separately in this judgment.
DLSH010043382021 Page 76 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
98. It was further submitted by Ld. Counsel for the accused that PW8 ACP Sanjeev Kumar also failed to establish his presence at the spot as no departure or arrival entry could be produced by him to show that he had left the office to arrive at the spot. He also could not produce the log book of the government vehicle, in which he came to the spot to substantiate the fact that he actually travelled in the said vehicle to the spot on that day. Further, the investigating agency also did not make the driver of the ACP witness, in order to prove the fact that the ACP actually came at the spot.
It may be noted that PW8 Sh. Sanjeev Kumar is Assistant Commissioner of Police, which is a gazetted post and a responsible position in Delhi Police. He being a gazetted officer in Delhi Police is also empowered by the notification of 14.11.1985 u/s.41(2) of NDPS Act. The said witness categorically deposed that he reached the spot upon receiving information from PW4 and his presence at the spot is also proved by the fact that he signed the seizure memo Ex. PW1/A. Further, three other witnesses i.e. PW1, PW2 & PW3 deposed as regards the fact that this witness came at the spot and that the search and seizure proceedings were conducted in his presence. In these circumstances, it would not be proper to not to believe this witness i.e. PW8 / ACP and even other four witnesses i.e. PW1, PW2, PW3 & PW4, but seek the deposition of the driver of PW-8 to establish the presence of a gazetted officer at the spot. It would be awkward to believe a driver regarding the presence of the ACP, but not to believe the ACP, whose deposition is corroborated by PW1, PW2, PW3 and PW4.
DLSH010043382021 Page 77 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
99. It was further submitted by the Ld. Counsel that PW15 MHCM in his deposition stated that the case property was deposited on 24.03.2021 by PW9 Insp. Vijay Kumar / SHO, but in register no.19 Ex. PW9/A, the name of the depositor is mentioned as SI Monu Chauhan, who as per the prosecution case was present at the spot at that time.
The said argument is found to be devoid of merits as in the present case, in register no.19, the details of the case property have been duly mentioned in the relevant columns (as the details of the seizure memo have been reproduced therein) and in the name of depositor, besides the name of SI Monu Chauhan, there is signatures of PW9 / SHO himself, to the effect that the case property was handed over by him to the MHCM. The signatures of this witness along with his designation and date is duly mentioned by this witness in his own handwriting in the column relating to name of depositor.
100. In view of these discussions, it is held that prosecution has successfully proved that the accused were apprehended by PW1, PW2, PW3 and PW4 on 24.03.2021 at 2.35 p.m., and in presence of PW8/ACP, 15 gms of contraband was recovered from accused Rajni and 20 gms of contraband was recovered from accused Rohit.
Discussion on proceedings u/s. 52A of NDPS Act
101. In the present case, proceedings u/s.52A NDPS Act were conducted as the sampling proceedings took place before the Ld. Magistrate Sh. Ajeet Narayan on 30.03.2021. The proceedings were conducted in the presence of both the accused persons and are reproduced as under :
DLSH010043382021 Page 78 of 92 SC 199/2021STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act "1. At this stage, IO is directed to produce the case property. IO has produced two white colour cloth pullanda carrying the seized contraband. The both pullandas are marked as Mark-A & Mark-B and sealed with the seal of MC & VK. The weighing machine is set at zero and photographed.
2. At my direction the seal of white pullanda, Mark-A is broken and a purple colour cotton cloth pouch (potli) is inside the pullanda, Mark-A. Inside the purple colour cotton pouch (potli), there is a white transparent plastic bag present. A brick-red colour powder (contraband) can be observed, inside the transparent plastic bag. The same is photographed. The photograph of the transparent plastic bag containing the contraband, had been taken which is 15.40gm.
......
5. IO ASI Narender Singh is directed to write the particulars of the case on the sample pullandas containing samples of 5.01gms and 5.00gms respectively which are in form of A1 & A2. Same is so done by the IO ASI Narender Singh. The pullanda containing remaining contraband is Mark-A and the particulars are also mentioned.
6. Again, at my direction the seal of white pullanda, Mark-B is broken and a transparent plastic bag is inside pullanda Mark-B. A brick red colour powder (contraband) can be observed, inside the transparent plastic bag. The same is photographed. The photograph of the transparent plastic containing the contraband, had been taken which is 20.48gm.
....
9. IO ASI Narender Singh is directed to write the particulars of the case on the sample pullandas containing samples of 5.01gms, each which are in form of B1 & B2. Same is so done by the IO ASI Narender Singh. The pullanda containing remaining contraband is Mark-B and the particulars are also mentioned.
10. All the pullandas i.e. A, Al and A2; B, B1 and B2 are sealed with the court seal of 'AN'. The same is again photographed.
11. The sample seal of the undersigned is also handed over to the IO ASI Narender Singh.
12. All the above pullanda altogether are again photographed.
13. The aforesaid case property as well as the sample drawn today are handed over to IO ASI Narender Singh and let separate statement of IO ASI Narender Singh be recorded to this effect.
14. Total 30 photographs drawing the sample proceedings are taken."
DLSH010043382021 Page 79 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act
102. The proceedings were also photographed by PW1 Ct. Prince, which are Ex.
PW1/P1 (colly - 30 photographs).
103. The aforesaid proceedings were admitted by the accused u/s.294 Cr.P.C.
alongwith a certificate annexed thereto on 03.12.2024. The report is Ex. AD- 1 and the certificate is Ex. AD-2.
104. In view of Section 52A(4) of NDPS Act, the aforesaid proceedings Ex. AD-1 and the photographs Ex. PW1/P1 of the recovered contraband, is the primary evidence w.r.t. the said articles in the present case.
105. However, it is noted that though, the physical case property was not required to be produced in view of the proceedings u/s.52A of NDPS Act as primary evidence, but even the same has been produced during the deposition of PW1 on 07.02.2024. The observations during deposition of PW1 in the Court in this regard is as under :
"At this stage, MHC(M) has produced one yellow envelope having A1 and case particulars of the present case sealed with the seal of FSL KG DELHI. Seals are duly intact. The seals are broken and the envelope is opened and found containing one small plastic transparent jar. The jar is having the stamp of Ld MM and on the cap of the jar mark A1 and the details of the present case is written. The jar is wrapped and packed with transparent cell tape. The jar is opened containing reddish colour powder and same is shown to the witness. After seeing the same, the witness states that it was the samples which was taken out in the presence of Ld. MM from the contraband which was recovered from the possession of the accused Rajni and same is now Ex.P-
2. At this stage, MHC(M) has produced one yellow envelope having mark B1 and case particulars of the present case sealed with the seal of FSL KG DELHI. Seals are duly intact. The seals are broken and the envelope is opened and found containing one small plastic transparent jar. The jar is having the stamp of Ld MM and on the cap of the jar mark B1 and the details of the present case is written. The jar is wrapped and packed with transparent cell tape. The jar is opened and found containing reddish DLSH010043382021 Page 80 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act colour powder and same is shown to the witness. After seeing the same, the witness states that it was the samples which was taken out in the presence of Ld. MM from the contraband which was recovered from the possession of the accused Rohit and same is now Ex.P-3.
At this stage, MHC(M) produced one white cloth pullanda having the seal of court AN. The pullanda is also having mark A and the details of the present case. The pullanda is also having the signature of the Ld. MM below the detail of the case. Seal is duly intact. The pullanda is opened in the Court and found containing one purple and white colour cloth bag /small bag containing one transparent polythene bag which is opened and found containing some reddish colour powder. The same is shown to the witness. After seeing the same, the witness states that it the contraband from which the samples Al and A2 were taken out in the presence of Ld. MM and the same which was recovered from the possession of the accused Rajni and same is now Ex.P-
4. At this stage, MHC(M) produced one white cloth pullanda having the seal of court AN. The pullanda is also having mark B and the details of the present case. The pullanda is also having the signature of the Ld. MM below the detail of the case. Seal is duly intact. The pullanda is opened in the Court and found containing one transparent polythene bag which is opened and found containing some reddish colour powder. The same is shown to the witness. After seeing the same, the witness states that it was the contraband from which the samples B1 and B2 were taken out in the presence of Ld. MM and the same which was recovered from the possession of the accused Rajni and same is now Ex.P-5.
At this stage, MHC(M) produced two transparent jars having the seal and stamp of Ld MM and on the cap of the jar mark A2 and B2 and the details of the present case is written. Both the jar also having the signature of the Ld. MM below the detail of the case. Both the jars are wrapped and packed with transparent cell tape doctor tape. The jars are opened and found containing reddish colour powder and same is shown to the witness.
After seeing the same, the witness states that it was the samples which were was taken out in the presence of Ld. MM from the contraband. Jar mark A2 was recovered from the possession of the accused Rajni and Jar mark B2 was recovered from the possession of the accused Rohit and same are now Ex.P-6 and Ex.P-7.
At this stage, MHC(M) produced one white cloth pullanda having the seal of RK and the details of the present case by ASI Narender Singh on 25.03.2021. Seals are duly intact. The pullanda is opened in the Court and for containing one denim blue DLSH010043382021 Page 81 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act colour cargo jeans. On the rear right pocket of the jeans white logo is affixed upon which 883 POLICE is written. The jeans has elastic waist band and also having elastic ankle band. The same is shown to the witness. After seeing the same, the witness states that it was the jeans which was worn by the accused Rohit on the day of incident and from which the contraband was recovered and same is now Ex.P-8.
At this stage, MHC(M) produced brown envelope having details of the case. Envelope is already opened and do not have any seal. One Rs.500 of new currency note, two notes of Rs.100 of old currency and two notes of Rs.100 of new currency is taken out from the said envelope and is shown to the witness. After seeing the same, the witness states that these currency were recovered from the jean of accused Rohit and same is now Ex.P-9."
106. In the opinion of the Court, the case property was duly subjected to proceedings u/s.52A NDPS Act, which in itself is a primary evidence, in view of Section 52A(4) of NDPS Act. However, the case property even otherwise was produced before the Court as primary evidence on 07.02.2024. Further, the samples were duly drawn by the Ld. Magistrate on 30.03.2021 and the samples sent to FSL were found bearing the seal of the Ld. MM i.e. 'AN', when the samples were examined by PW14 Dr. Kavita Goyal.
Discussion on proceedings u/s. 55 of NDPS Act
107. As per the prosecution case, PW4 SI Monu Chauhan, IO of the case, after the recovery of the contraband from the accused persons prepared two pulandas Mark A and Mark B and sealed them with the seal of MC, which he seized vide seizure memo Ex. PW1/A. PW4 categorically testified that the seal was handed over to PW2 Ct. Mohit vide seal handing over memo Ex. PW1/F. The said case property alongwith rukka was handed over to PW1 Ct.
DLSH010043382021 Page 82 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act Prince, who took it to the PS Vivek Vihar, where he handed over the the two sealed pulandas and copy of seizure memo to PW9 Insp. Vijay Kumar.
108. PW9 has also testified that on 24.03.2021, he was posted as SHO PS Vivek Vihar and on that day, PW1 Ct. Prince from Narcotic Cell came to his office and handed over to him two pullandas, sealed with the seal of MC alongwith copy of the seizure memo. He affixed his counter-seal of VK on aforesaid two parcels and after confirming the FIR number from Duty Officer, mentioned the same on the two parcels and copy of seizure memos. He also signed the said parcels and thereafter called PW15 ASI Dinesh, MHCM and handed over the said two pullandas sealed with the seal of MC and counter seal of VK to him. He also lodged a GD entry no.103A Ex. PW9/B in this regard. He further signed in register no.19 against entry at sl. no.121 vide which PW15 had deposited the case property in the Malkhana. PW15 had also deposed on the same lines. It is found that it is specifically mentioned in GD No.103A Ex. PW9/E that the case property (two pullandas) sealed with the seal of MC were counter-sealed with the seal of VK.
109. Further, as per entry in register no.19 Ex. PW9/A, the same is duly signed by PW9 on the first page where the entry starts as well as on the second page, where the entry ends, which further corroborates the testimony of PW9 to the effect that the case property was received by PW9 from PW1 and was duly counter-sealed by PW9 with his counter-seal of VK.
110. In opinion of the Court, section 55 NDPS Act was duly complied with in the facts of the present case.
DLSH010043382021 Page 83 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act Whether recovered substance is opium derivative?
111. As per the initial charge, which was framed against the accused persons on 27.04.2023, the accused persons were charged for being in possession of smack (heroin), however, the charge was altered on 25.01.2025 in view of the fact that as per the FSL result. The word 'heroin' written in brackets in front of the word 'smack' limited the charge to one particular opium derivative i.e. heroin. In view of the FSL result, it was found that the substance recovered from the accused persons upon chemical, TLC and GC- MS examination was found to contain acetaminophen, caffeine, morphine, codeine, acetylcodeine, monoacetylmorphine and trimethoprim.
112. The presence of morphine, codeine and monoacetylmorphine in the substance recovered from the possession of the accused persons indicate that the recovered substance was an 'opium derivative' as defined in Section 2(xvi) of NDPS Act. 'Morphine' and 'codeine' have been mentioned as opium derivative in Section 2(xvi)(c), however, 'monoacetylmorphine' is not mentioned in the said definition.
113. The term heroin is used for the chemical name diacetylmorphine, which was not found present in the substance recovered from the accused, as per the FSL Result Ex. PW14/A. It is for this reason that the charge was altered to clarify that the word 'smack' is not limited to the compound 'heroin', but it extends to any opium derivative.
114. The altered charge was read over and explained to the accused persons in the presence of their counsel and after consulting their counsel, the accused persons stated that they do not want to recall any PW for cross-examination DLSH010043382021 Page 84 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act due to the alteration in charge. The same may be for the reason that the defence of the accused persons is to the effect that they have been falsely implicated in the present case because of their previous involvements in cases under the Excise Act and that no recovery was affected from them.
115. Be as it may, the question that arises before the Court is : whether the substance recovered from the accused persons is a narcotic drug or not? Perusal of Section 2(xvi) of NDPS Act clarifies that both 'codeine' and 'morphine' are 'opium derivatives' and both the substances also find mentioned in SO1055(E) dated 19.10.2001. In the said SO, the 'codeine' is at entry no.28, for which small quantity is 10 gms and commercial quantity is 1 Kg, whereas 'morphine' is at entry no.77, for which small quantity is 5 gms and commercial quantity is 250 gms.
116. In order to prove that the recovered substance was 'opium derivative' and therefore, a 'narcotic drug', the prosecution relied upon FSL result Ex. PW14/A, which has been duly proved by PW14 Dr. Kavita Goyal, Sr. Scientific Officer (Chemistry), FSL, Rohini, as per which, both the samples Mark A1 and B1 were found to contain both 'codeine' and 'morphine'.
117. It is further noted that the weight of the samples A1 and B1 drawn before the Ld. Magistrate (5.1 gms each) on 30.03.2021 during proceedings u/s.52A NDPS Act Ex. AD-1, is in line with the weight of the samples, as found by the expert examiner during the analysis of the sample on 03.12.2021, as the weight of the samples were found to be 4.9 gms each. The minute difference in weight may be due to use of different weighing scales.
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118. As per Section 2 (xvi) of NDPS Act, 'morphine' and 'codeine' are opium derivatives, which fall within the definition of manufactured drug u/s.2 (xi)
(a) of NDPS Act and consequently within the definition of narcotic drug u/s.2 (xi)(b) of NDPS Act and possession of the same is restricted by Section 8 (c) of the NDPS Act.
119. However, it may be noted here that the percentage purity of 'morphine' is not stated in FSL result Ex. PW14/A. As per Section 2(xvi)(c) of NDPS Act, only those preparations that contain more than 0.2 percent of 'morphine' fall within the amit of the definition of 'opium derivative'. In these circumstances, the only compound which can be said to fall within the definition of 'opium derivative' and which was found present in the recovered substance is 'codeine'. For 'codeine', as per entry 28 in SO1055(E) dated 19.10.2001, small quantity is 10 gms and commmerial quantity is 1 Kg. Therefore, the recoveries in the present case are 20 gms of 'codeine' from accused Rohit and 15 gms of 'codeine' from accused Rajni.
120. Accordingly, the court has no hesitation in holding that the substance recovered from the accused persons was narcotic drug i.e. codeine, as defined under section 2(xvi) of NDPS Act and the recovered quantity from each accused is intermediate quantity.
Discussion on compliance u/s. 57 of NDPS Act
121. Section 57 of NDPS Act is reproduced as under:
"57. Report of arrest and seizure.--
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."DLSH010043382021 Page 86 of 92 SC 199/2021 FIR No.72/2021
PS : Vivek Vihar U/s.21(b) NDPS Act
122. As per the evidence of PW4 SI Monu Chauhan and PW13 ASI Narender, both of them prepared separate reports under section 57 NDPS Act w.r.t. seizure of contraband and arrest of the accused, which are Exs. PW5/B and PW5/C respectively.
123. As per the deposition of PW5 ASI Rajiv Saxena, he was working in the office of ACP Operation Cell, the said two reports Exs. PW5/B and PW5/C were received in the office of ACP on 25.03.2021 and were entered in diary register vide entry nos.23 & 24 respectively, which is Ex. PW5/A. Both the said reports, as per the deposition of PW7 Insp. Hira Lal, were forwarded by him under his signatures.
124. Further, PW8 ACP Sanjeev Kumar also categorically stated that he had seen the said reports Exs. PW5/B and PW5/C and both of them bear the signatures of the said witness.
125. Therefore, in the opinion of the Court, the provisions of Section 57 NDPS Act were duly complied with in the facts of the present case. Videography and Photography not done during the proceedings and CCTV footage not produced
126. It was submitted that, though, the spot, where the accused was allegedly apprehended in a thickly populated residential and commercial area near DDA Park, but neither CCTV footage of the spot was collected, nor videography or photography of the proceedings was conducted by the investigating agency.
127. It is true that there is no videography or photography of the recovery proceedings which were conducted in 2021.
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128. The question before the Court is whether the absence of photography or videography or the availability of CCTV footage in proceedings done about ten years ago in 2021 is fatal to the prosecution case.
129. 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.
130. It may be noted that the police officials are generally hesitant to take photographs and videos using their personal mobile phone, as they fear that their personal phones may not be seized as primary evidence in the case. Recently, Hon'ble Punjab and Haryana High Court in Ashok Kumar Vs. State of Haryana, CRM (M) No.14560/2025 order dated 21.03.2025 reprimanded the police officials for not seizing the mobile phones in which recordings were made. Said order is reproduced as under:
"Learned counsel for the petitioner contends that in the present case, the alleged recording was made in the mobile phone, owned by Ajay Kumar, however, the police has neither taken the said mobile phone in possession nor has been sent to the FSL.
Learned State counsel submits that the statement made by learned counsel for the petitioner is correct and the mobile phone has not been taken into possession by the police.
It is shocking to know that the primary evidence in the present case has not been taken into possession by the police, till date, whereas, the FIR in the present case was registered on 31.12.2024. It also shows that the investigation in the present case is being conducted by the police in a very casual manner and without following the procedure established by the law. It appears that there was no monitoring of investigation by Senior Police Officers."
131. The police officials are thus hesitant even today to take photographs and videos on personal mobile phones, though, the said situation has been to some extent rectified by the introduction of e-sakshya recently.
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132. Accordingly, the absence of videography and photography at the spot during recovery proceedings conducted in 2021, or absence of the CCTV footage, is not by itself fatal to the prosecution case.
Presumption
133. 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 their claim of either unawareness or absence of conscious possession of contraband.
134. Hon'ble Apex Court in Mohan 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.
DLSH010043382021 Page 89 of 92 SC 199/2021 FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act 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.
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16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the Appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused-Appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence Under Section 18 of the NDPS Act is made 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 DLSH010043382021 Page 90 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act 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."
135. In Noor Aga v. 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.
136. 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:
"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"
137. Upon reviewing the evidence, despite some lapses, gaps, and discrepancies, the prosecution has proven the foundational facts against the accused persons DLSH010043382021 Page 91 of 92 SC 199/2021 STATE Vs. ROHIT & ANR.
FIR No.72/2021PS : Vivek Vihar U/s.21(b) NDPS Act beyond reasonable doubt. The presumption under sections 35 and 54 of the NDPS Act is applicable in this case against the accused persons, as the recovery of contraband has been established beyond reasonable doubt. The accused persons failed to rebut this presumption, leading to the conclusion that they were knowingly and deliberately in possession of an intermediate quantity of 'codeine'. According to the presumption under section 54 of the NDPS Act, since the accused persons were found in possession of an intermediate quantity of 'codeine', they have committed an offense punishable under section 21(b) of the NDPS Act.
Conclusion
138. The prosecution proved beyond reasonable doubt that accused Rohit was in possession of intermediate quantity of 'codeine' (i.e. more than 10 gms), as 20 gms of 'codeine' was recovered from the possession of accused Rohit. The prosecution further proved beyond reasonable doubt that accused Rajni was in possession of intermediate quantity of 'codeine' (i.e. more than 10 gms), as 15 gms of 'codeine' was recovered from the possession of accused Rajni. In view of the presumption under section 35 and 54 NDPS Act, it is presumed that the accused persons had the requisite mental state (mens rea) to commit the offence of being in possession of narcotic drug / ganja without any authority or licence to be in possession of the same.
139. Accordingly, accused Rohit s/o. Late Mahender and Rajni w/o. Late Mahender are convicted of the offence punishable under Section 21(b) of the NDPS Act.
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140. Convicts to be heard on sentence on 06.05.2025 at 2:00 p.m. Announced in the open Court on 05th day of May 2025 (S.P.S. Laler) Special Judge (NDPS Act) District Shahdara Karkardooma Courts, Delhi SAURABH PARTAP SINGH LALER Digitally signed by SAURABH PARTAP SINGH LALER Date:
2025.05.05 16:19:26 +0530