Delhi District Court
State vs Babu @ Rahul on 9 January, 2026
IN THE COURT OF SHRI PUNEET PAHWA
SPECIAL JUDGE (NDPS)/NORTH EAST DISTRICT
KARKARDOOMA COURTS DELHI
SESSIONS CASE NO. 299/2019
CNR No. DLNE01-003259-2019
STATE Versus BABU @ RAHUL
S/o Sh. Vijay Nandan
R/o Alvi Nagar,
Loni, Ghaziabad, U.P.
FIR No. : 244/2019
PS. : Dayal Pur
U/s. : 20/61/85 NDPS Act
Chargesheet Filed On : 17.08.2019
Judgment Reserved On : 18.12.2025
Judgment Announced On : 09.01.2026
Decision : Acquittal
JUDGMENT:
1. Case of the prosecution is that on 29.06.2019, when ASI Vijyant Kumar was on patrolling duty in the area of PS Dayal Pur alongwith Ct. Vinit, at about 8:00 pm, he had received a secret information and after discussing the same with senior officers, on the direction of the SHO, he had constituted a raiding team. ASI Vijyant Kumar with the help of Ct. Vinit, at the instance of secret informer apprehended one person namely Babu @ Rahul. At that time, he was carrying one bag (thaila) in his right hand. ASI Vijyant Kumar told about the secret information to the said person and gave notice u/s. 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") to him, which was read over to him. He was informed about his legal rights, if he wanted his search could be conducted in the presence of any Magistrate or Gazetted Officer. On his request, Sh. Anand Kumar Mishra, the then ACP was called at the spot and in his SC No. 299/2019 State Vs. Babu @ Rahul Page 1 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:22
+0530
presence, search of the bag carried by the said person was got conducted. On checking the said bag, it was found containing Ganja like substance. The total weight of the recovered Ganja was found to be 1 kg 840 grams. Two samples of 50 grams each were taken out of the material. Pullandas were prepared. Samples were sent to the FSL. Thereafter, ASI Vijyant Kumar prepared rukka and got the FIR registered u/s. 20/61/85 NDPS Act. Thereafter, investigation of the present case was carried out by ASI Ravinder Kumar.
2. ASI Ravinder Kumar prepared site plan at the instance of ASI Vijyant Kumar. After interrogation, accused Babu @ Rahul was arrested and personally searched by ASI Ravinder Kumar. Disclosure statement of the accused Babu @ Rahul was also recorded and case property was deposited in malkhana. Notice u/s. 52 NDPS Act was also served upon accused Babu @ Rahul. After completing the investigation, chargesheet was filed against accused Babu @ Rahul u/s 20/61/85 NDPS Act. Later on, FSL result was received and same was filed on record.
CHARGE
3. On dated 10.10.2019, charge u/s 20(b)(B) of NDPS Act was framed against accused Babu @ Rahul to which, he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution examined as many as 10 witnesses to prove the charge against the accused Babu @ Rahul.
Srl. Name of the Crux of deposition No. witness SC No. 299/2019 State Vs. Babu @ Rahul Page 2 of 22 Digitally signed by PUNEET PAHWA PUNEET Date: PAHWA 2026.01.09 17:04:24 +0530 PW-1 ASI Vijyant He was the first IO of the present Kumar case and deposed about the
investigation carried out by him. He, at the instance of secret informer, apprehended the accused alongwith the Ganja. He served notice u/s. 50 NDPS Act upon the accused and proved the copy of notice u/s. 50 of NDPS Act, as Ex.PW1/A. The weight of the recovered ganja was found to be 1 kg and 840 grams with thaila and polythene. After sampling and markings, the pullandas were taken into possession, vide seizure memo Ex.PW1/B. He prepared rukka Ex.PW1/C and got the present FIR registered. He also correctly identified the accused in the court alongwith the case properties.
PW-2 Ct. Vineet Kumar On 29.06.2019, he joined investigation of the present case with ASI Vijyant Kumar and proved notice u/s. 52 NDPS Act, vide Ex.PW2/A. He also proved the arrest memo of accused, vide Ex.PW2/B;
his personal search memo, vide Ex.PW2/C and disclosure statement of accused, vide Ex.PW2/D. He also correctly identified the accused in the court alongwith the case SC No. 299/2019 State Vs. Babu @ Rahul Page 3 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:16
+0530
properties.
PW-3 Insp. Tarkeshwar He deposed that on 29.06.2019 at
Singh about 8:15 PM, ASI Vijyant Kumar
had informed him about the secret
information regarding Ganja. At
about 8:30 PM, he again received a
telephonic call from ASI Vijyant
regarding apprehending of accused Babu @ Rahul with Ganja. At about 8:45 PM, he reached at the said place, where, he called ACP Sh.
Anand Mishra. ASI Vijyant prepared notice u/s. 50 of NDPS Act and served the same upon the accused in the presence of ACP Anand Mishra.
He further deposed that at about 11:00 PM, when he was present at PS Dayal Pur, Ct. Vinit produced cloth pullandas, form FSL alongwith the documents before him. He put his signatures on the cloth pullandas and sealed them with his seal 'TS' and got deposited the same in the Malkhana. He also correctly identified his signatures on the sealed pullandas in the court.
PW-4 ASI Yashpal He deposed that on 29.06.2019 at
Singh about 10:55 PM, after receiving
rukka from Ct. Vineet, he recorded
Kayami DD No. 76A and informed
SC No. 299/2019 State Vs. Babu @ Rahul Page 4 of 22
Digitally signed
by PUNEET
PAHWA
PUNEET Date:
PAHWA 2026.01.09
17:04:21
+0530
the SHO about the said rukka and
after receiving directions from the SHO, he got the present FIR registered through Computer Operator.
He made endorsement Ex.PW4/A on the rukka and proved the copy of FIR, vide Ex.PW4/B. He also issued certificate u/s. 65-B Indian Evidence Act regarding print out of the present FIR and proved the same, vide Ex.PW4/C. PW-5 HC Rambir He deposed that on 08.07.2019, he took one sealed pullanda and one forwarding letter to FSL, Rohini, Delhi, vide RC No. 36/21/19 and proved the said RC, vide Ex.PW5/A. He deposited the abovesaid articles in the FSL, vide acknowledgment receipt Ex.PW5/B. PW-6 HC Brijesh He deposed that on 01.07.2019, after Kumar receiving an information u/s. 57 of NDPS Act in his office, he made entry in diary register, vide entry No. 1555 and thereafter, he produced the said information before Sh. Anuj Kumar, ACP Sub Division Gokapuri. He identified the signatures of ACP Anuj Kumar and proved the said information, vide SC No. 299/2019 State Vs. Babu @ Rahul Page 5 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:19
+0530
Ex.PW6/A and copy of entry No.
1555 in diary register, vide
Ex.PW6/B.
PW-7 Dr. Kavita Goyal She was posted as Assistant Director
(Chemistry) at FSL, Rohini. She
deposed that on 08.07.2019, she had examined Ex. A-1, which was found to be Ganja (Cannabis) and proved her detailed report, vide Ex.PW7/A. PW-8 Sh. Anand Kumar He was posted as the ACP Sub Mishra Division Nand Nagari. He deposed that on 29.06.2019, he was also looking after the charge of ACP of Sub Division Gokul Puri, when at about 9:00 PM, he received information regarding apprehending of accused Babu @ Rahul with Ganja near Brij Puri Pulliya.
Thereafter, he reached at the said place at around 9:10 PM, where ASI Vijyant Kumar weighed the Ganja recovered from the accused alongwith the polythene in his presence and it was found to be 1 kg 840 grams.
He also made endorsement at point X on the carbon copy of the notice u/s. 50 of NDPS Act (Ex.PW1/A) and identified his signature thereon at point B. He also correctly SC No. 299/2019 State Vs. Babu @ Rahul Page 6 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:18
+0530
identified the accused in the court.
PW-9 SI Ravinder He deposed that in the intervening Malik night of 29/30.06.2019, further investigation of the present case was assigned to him thereafter, he alongwith Ct. Vineet reached at the spot, where, they met with ASI Vijyant, who handed over some documents and custody of the accused Babu @ Rahul to him.
Thereafter, he prepared site plan Ex.PW9/A at the instance of ASI Vijyant Kumar.
He served notice u/s. 52 of NDPS Act (Ex.PW2/A) upon the accused and identified his signature thereon at point A. He interrogated the accused and arrested him, vide arrest memo Ex.PW2/B and personally searched him, vide personal search memo Ex.PW2/C. He also recorded disclosure statement Ex.PW2/D of the accused Babu @ Rahul.
He further deposed that on 30.06.2019, he had prepared an information u/s. 57 of NDPS Act duly forwarded by SHO to ACP concerned and proved the same, vide Ex.PW6/A. He also proved the original notice u/s. 50 of NDPS Act, SC No. 299/2019 State Vs. Babu @ Rahul Page 7 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:17
+0530
vide Ex.PW9/B and correctly
identified the accused Babu @
Rahul in the court alongwith the
case properties.
PW-10 ASI Pankaj He deposed that on 29.06.2019, he had deposited three sealed parcels duly sealed with the seal of VK in the malkhana and made entry at serial no. 134 in register no. 19. On the same day, he also deposited the original notice u/s. 50 of NDPS Act recovered in the personal search of the accused and made entry in register no. 19 against serial no. 134.
He proved the copy of said entry, vide Ex.PW10/A. He further deposed that on 08.07.2019, he had handed over one sealed parcel containing Ganja duly sealed with the seal of VK & TS alongwith form FSL to Ct. Rambir for depositing the same at FSL, vide RC No. 36/21/19 and made endorsement at point X in register no. 19 against serial no. 134 and proved the same.
He further deposed that on 13.09.2019, Ct. Rambir had handed over FSL result alongwith sample parcel. He had deposited the sample SC No. 299/2019 State Vs. Babu @ Rahul Page 8 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09 17:04:20 +0530 parcel in malkhana and handed over the FSL result to the IO. He had made endorsement at point Y in register no. 19 against serial no. 134 and proved the same. He also proved the copy of RC, vide Ex.PW10/B as well as copy of acknowledgment, vide Ex.PW10/C. STATEMENT OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C.
5. After concluding the prosecution evidence, statement of accused u/s 313 CrPC was recorded. He denied all the incriminating circumstances. He stated that he was innocent. He was falsely implicated by the police official. He was illiterate and he did not know about the implication of law. Accused did not wish to lead any evidence in his defence.
FINAL ARGUMENTS
6. I have heard Sh. F. M. Ansari, learned Addl. PP for the State and learned Counsel for the accused.
7. Sh. F. M. Ansari, Ld. Additional PP for the State submitted that prosecution has proved the recovery of contraband from the accused. He submitted that all the provisions under the NDPS Act were duly complied with in the present case and also submitted that in the present case, the charge has been proved beyond reasonable doubt, therefore, accused Babu @ Rahul is liable to be convicted in the present case.
8. Ld. Counsel for accused submitted to the contrary.
SC No. 299/2019 State Vs. Babu @ Rahul Page 9 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:25
+0530
He submitted that in the present case, accused has been falsely implicated in the present case as no contraband was recovered from the accused and the alleged contraband has been planted upon the accused. It has been argued that there are material contradictions in the testimonies of the prosecution witnesses and also submitted that neither any public witness was joined during the recovery proceedings, nor those proceedings were videographed/photographed, which raises doubts in the entire recovery proceedings.
9. I have considered the rival submissions, put forth by both the sides.
10. From the submissions of the learned Counsel, the following point for determination arise in the present case:
Whether the accused was found in possession of 1kg 840 grams of Ganja as alleged?
11. Before a person can be held liable for commission of any offence, the prosecution has to establish his guilt beyond reasonable doubt.
12. I shall now delve into the appraisal of material available on record.
13. The accused has been alleged to have been found in possession of 1 kg 840 grams Ganja. Admittedly, neither any public person was joined during recovery proceedings, nor any public person/independent witness has been examined during trial. All the witnesses examined by the prosecution, are either police officials or formal witnesses.
14. As per the case of the prosecution, PW-1 ASI Vijyant Kumar and PW-2 Ct. Vineet Kumar were on patrolling SC No. 299/2019 State Vs. Babu @ Rahul Page 10 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:22
+0530
duty, when they had received a secret information that one boy would come from the side of Wazirabad Road alongwith the contraband i.e. Ganja. At around 8:30 PM, one person was seen coming from the side of Waziarabad Road. The secret informer pointed out towards the said boy and left from the spot. The said boy was apprehended, who disclosed his name as Babu @ Rahul i.e. the accused. Accused was carrying one bag in his right hand and he was told that they were having secret information that he was carrying Ganja. When he was informed about his rights u/s. 50 of NDPS Act, he had told that he wanted to get himself searched before the Gazetted Officer. Accordingly, ASI Vijyant Kumar telelphonically informed the SHO about the same. After sometime, SHO Insp. Tarkeshwar Singh and ACP Anand Kumar Mishra, who was the ACP, Sub Division Nand Nagari, Delhi and was also supervising the work of Sub Division Gokulpuri on that day, came to the spot. However, in the examination-in-chief of both these witnesses i.e. PW-1 and PW-2, name of the ACP has been wrongly mentioned as ACP Anuj Kumar. The fact that both these witnesses stated in their examination in chief about arrival of Sh. Anuj Kumar, ACP on the spot cannot be said to be a mere co-incidence. It is worth-noticing that PW-1 was examined in chief on 18.02.2020 i.e. just 7 months after the alleged recovery, despite that he failed to correctly recall the name of the ACP, who had actually came at the spot, does raise some doubts.
15. There are other discrepancies also which came out during cross-examination of the PW-1 and PW-2, which raises serious doubt in the entire case of the prosecution. PW-1 had stated that Ct. Vineet Kumar had left the spot on his motorcycle, whereas, PW-2 Ct. Vineet Kumar had stated that he had left the spot by an Auto. Further, PW-1 had stated that accused did not SC No. 299/2019 State Vs. Babu @ Rahul Page 11 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:19
+0530
try to flee away, whereas, PW-2 had stated that at the time of apprehension, accused tried to run away. PW-2 further stated that ASI Vijyant Kumar telephonically informed the SHO and ACP about the desire of the accused of being searched before the Gazetted Officer, whereas, ASI Vijyant Kumar had stated that he had informed the SHO. Meaning thereby, he did not inform the ACP. Further PW-2 had very categorically stated that the SHO and ACP had left the spot together, whereas, PW-3 Insp. Tarkeshwar Singh had stated in his cross-examination that ACP Anand Kumar Mishra had left the spot before he had left the spot. These discripancies, in isolation may, on the face of it, appear to be minor and inconsequential, but when seen cumulatively alongwith other contradictions, discussed herein below, they do raise enough doubts as to the chain of events alleged by the prosecution.
16. It is not in doubt that while the testimony of the police witnesses in absence of independent witnesses may be sufficient to secure conviction, if the same inspires confidence during the trial, however, lack of independent witness in certain cases can cast a doubt as to the credibility of the prosecution's case. It is not disputed or rather admitted by the witnesses, who were part of the investigating team, that at the time of alleged recovery and also when the accused was being searched and interrogated, several public persons gathered there, as it was a public place, despite that not a single public person was joined during the entire proceedings. Moreover, the proceedings were not even photographed/videographed, for the reasons best known to the IO.
17. As per the version of PWs, the public persons were asked to join the investigation, but, none of them agreed and went SC No. 299/2019 State Vs. Babu @ Rahul Page 12 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:24
+0530
away without disclosing their names and addresses. Further, the IO has not produced any notice u/s. 160 of the CrPC which ought to have been served upon those available independent witnesses who allegedly refused to join the investigation. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere efforts to join public witnesses for the proceedings when they may be available created reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by the Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
18. Although, this court is not oblivious of the fact that the testimonies of the police officials cannot be discarded away merely because of the fact that no public witnesses were examined, however, their testimonies have to be scrutinized in more detail. If it is found that the police officials during the course of investigation did not even make endeavor to ask the public witnesses to join the investigation, did not even ask their SC No. 299/2019 State Vs. Babu @ Rahul Page 13 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:22
+0530
names and details, etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir Vs. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
19. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court of India in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it was held:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be SC No. 299/2019 State Vs. Babu @ Rahul Page 14 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:20
+0530
disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
20. Therefore, in view of the above mentioned law, it becomes clear that while the testimony of the police officials cannot be discarded away altogether in the absence of any public witnesses, however, it would be prudent to examine and scrutinize their testimonies more closely and should preferably be corroborated.
21. Admittedly, at the time of alleged recovery, no photography of case property and videography of the recovery proceedings were carried out by the investigating agency, as, the testimonies of all the prosecution witnesses are completely silent upon the aspect of the photography of the case property and videography of the recovery proceedings. Thus, not finding any public witness and lack of photography and videography of the alleged recovery in today's time and age casts a doubt on the credibility of the evidence. It is not the case of the prosecution that any notice was served under Section 100(8) of the CrPC on the person who refused to join the raiding party in the process of seizure. It is also relevant to note that the procedure prescribed in the NCB Handbook, which has been adopted by the Delhi Police, though may not be binding, however, prescribes photography and videography as a crucial practice for obtaining evidence in order to avoid allegation in regard to the foul play. When the public persons refused to join the recovery proceedings, the least the police officials could have done is to photograph/videograph the SC No. 299/2019 State Vs. Babu @ Rahul Page 15 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:23
+0530
recovery proceedings, in the absence whereof, serious doubts have definitely been raised in the entire proceedings conducted by the raiding team. Even the auto driver in whose auto PW-2 had gone to the PS was not asked to join the proceedings, nor was made a witness in the present case.
22. Non-compliance of Sec. 52-A of NDPS Act. To add to it, it is worth-noticing that even after seizure of the recovered contrabands, no steps u/s. 52-A of NDPS Act were taken by the IO. The IO failed to comply with the provisions of Sec. 52-A of NDPS Act altogether. Although, merely non-compliance of Sec. 52-A of NDPS Act in itself does result into acquittal of the accused, yet there are other factors also, which further weakens the case of the prosecution. Moreover, it is worth-noticing that although the alleged contraband was recovered on 29.06.2019, but it was sent to FSL on 08.07.2019 i.e. after 10 days and no explanation has come on record regarding the said delay in sending the alleged contrabands to the FSL. Although no time limit has been prescribed under the NDPS Act for sending the samples to FSL, but in the absence of proceedings u/s. 52-A of the NDPS Act, it does raise serious concerns about tempering.
23. Apart from the above discrepancies, there are certain other aspects also, which raises serious doubts in the case of the prosecution so far as the alleged recovery is concerned. In the considered opinion of this court, notice u/s. 50 of NDPS Act was not duly given to the accused, as per the Section 50 of the NDPS Act. The notice given to the accused is reproduced herein below:-
"यदि आप चाहें तो इलाका मजिस्ट्रेट या किसी राजपत्रित अधिकारी को बुलवाकर उनके सामने आप अपनी तलाशी करा सकते हैं। और आप SC No. 299/2019 State Vs. Babu @ Rahul Page 16 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:18
+0530
अपनी तलाशी करवाने से पहले हमारी तलाशी भी ले सकते है। यह आपका कानूनी अधिकार है। "
24. Perusal of the above shows that while giving notice u/s. 50 of NDPS Act, the only option given to the accused was that if he wanted he could get himself searched by calling the Ilaka Magistrate or any Gazetted Officer to the spot and get himself searched in his presence, whereas, no option to the effect that if he wanted, he could be taken to the nearest Magistrate or nearest Gazetted Officer was given, which, in the considered opinion of this court cannot be stated to be proper compliance of Sec. 50 of NDPS Act. Sec. 50 of NDPS Act very specifically provides that if such person so requires, the officer shall take such person without unnecessary delay to the nearest Gazetted Officer or to the nearest Magistrate. But, no such option was given to the accused.
25. As per the case of the prosecution itself, the accused had desired to be searched before the Gazetted Officer. Even though the alleged contraband was recovered from the bag being carried by the accused and not from his personal search, yet once he had shown his desire to be searched before the Gazetted Officer, it was incumbent upon the concerned police official to comply with Sec. 50 of NDPS Act in letter & spirit. In Dilip v. State of M.P., (2007) 1 SCC 450, the Hon'ble Supreme Court has observed as under:-
"In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellant's was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done."
26. Similarly, in State of Rajasthan v. Parmanand, AIR SC No. 299/2019 State Vs. Babu @ Rahul Page 17 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:21
+0530
2014 SC 1304, the Hon'ble Supreme Court has observed as under:-
"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 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."
27. Thus, it is clear that once the accused wishes to be searched before the Gazetted Officer and if ultimately he has been personally searched, even though, the recovery was not from his personal search, Sec. 50 of NDPS Act is to be mandatorily complied with, in it's letter & spirit, which in the considered opinion of this court, has not been done in the present case.
28. In a recent judgment, Mohd. Jabir v. State of NCT of Delhi, 2023 SCC OnLine Del 1827, decided on dated 28.03.2023, the Hon'ble High Court of Delhi had very categorically stated as under:
"Crux of the safeguard enshrined in Section 50 of the NDPS Act is that an accused should be made aware of his right to be brought before a Magistrate or a Gazetted Officer prior to a personal search. Such offer may be oral or in writing but the terms of the offer must be clear, unequivocal and not create confusion in the mind of an accused with regard to the lawful requirements prior to the search in any manner whatsoever.
As is clear from the above, the emphasis on the word SC No. 299/2019 State Vs. Babu @ Rahul Page 18 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:25
+0530
"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.
The ACP was the part of the raiding team and it was on his direction the entire investigation was initiated, could not be called an independent officer. He was after all the Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance and hence cannot be said to be an independent person before whom the law contemplates a search under NDPS. In my opinion the use of the word "nearest" by the legislature is intentional and has been used to ensure neutrality and independence at the time of search."
29. In State of Punjab v. Baldev Singh, (1999) 3 SCC 977, the Hon'ble Supreme Court has observed as under:-
"This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires"
to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As Page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as, also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If SC No. 299/2019 State Vs. Babu @ Rahul Page 19 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:23
+0530
the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted."
30. This court has no hesitation in holding that in the present case, Sec. 50 of NDPS Act has not been duly complied with even though the accused did wish to be searched before the Gazetted Officer, as the option of taking him to the nearest Magistrate or Gazetted Officer was not even given to him.
31. In Noor Aga v. State of Punjab & Anr., (2008) Drug Cases (Narcotic) 352, the Hon'ble Supreme Court has observed as under:-
"It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be a substitute for legal evidence.
Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of SC No. 299/2019 State Vs. Babu @ Rahul Page 20 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:19
+0530
proof required for the accused to prove his innocence-is-not-as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt."
32. In view of the above discussion and various contradictions and discrepancies noticed in the testimonies of prosecution witnesses especially PW-1 and PW-2, this court is of the view that in the present case, it is not safe to rely solely on the uncorroborated testimonies police officials, who were all part of the same team. So far as the present case is concerned, non- joining of any independent witness, no photography and videography of the recovery proceedings and non-compliance of Sec. 50 & Sec. 52-A of NDPS Act, and delay in sending the sample to the FSL are fatal to the prosecution case. It can be said that the prosecution has failed to prove it's case, beyond all reasonable doubts that accused Babu @ Rahul was found in possession of alleged 1.840 kgs of Ganja, therefore, accused is entitled for benefit of doubt and thus, accused Babu @ Rahul stands acquitted in the present case.
33. Accused is required to furnish bail bonds as per Sec.
SC No. 299/2019 State Vs. Babu @ Rahul Page 21 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:17
+0530
437-A CrPC.
34. Case property, if any be confiscated and same be destroyed as per rules.
35. File be consigned to Record Room, after due compliance.
Announced in the open court on 9th day of January, 2026 (PUNEET PAHWA) Special Judge (NDPS)/North East District /Karkardooma Courts/Delhi SC No. 299/2019 State Vs. Babu @ Rahul Page 22 of 22 Digitally signed by PUNEET PAHWA PUNEET Date:
PAHWA 2026.01.09
17:04:25
+0530