Delhi District Court
State vs Caroline Phocum on 16 July, 2025
IN THE COURT OF MS. BHAVNA KALIA:
SPL. JUDGE (NDPS)-01: DWARKA COURTS: NEW DELHI
SC No. 55/2022
FIR No. 143/2021
U/s. 21(C) & 29 NDPS Act
PS: Crime Branch
STATE VS. CAROLINE PHOCUM AND ANR.
Date of Institution of case:-22.01.2022
Date of arguments:- 03.07.2025
Date on which Judgment pronounced:-16.07.2025
JUDGMENT
CNR No. : DLSW01-000497-2022
Date of commission of the offence : 28.07.2021
Name of the complainant : SI Anupama Rathi
Name and address of accused : 1. Caroline Phocum
D/o late Sh. JI Stockman
Present/Permanent Address :
L-49, Rama Park, Mohan
Garden, Uttam Nagar, Delhi
2. Madhu
W/o Sh. Manjeet
Present/Permanent Address :
L-49, Rama Park, Mohan
Garden, Uttam Nagar, Delhi
Offence complained of : 21(c) & 29 NDPS Act
Plea of accused persons : Pleaded not guilty
Date of order : 16.07.2025
Final order : Acquittal for the offence
punishable u/s 21(c) & 29 of
NDPS Act, 1985
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FIR No.143/2021 Page 1 of 26
THE CASE OF THE PROSECUTION:
1. It is the case of the prosecution that on 28.07.2021, SI
Anupama Rathi was posted in PS Crime Branch, Pushp Vihar and on
that day at about 04.00 am when SI Anupama Rathi was present in her
office room, then the secret informer came and informed her regarding
a lady namely Madhu residing at Mohan Garden, Uttam Nagar who
used to indulge in huge supply of heroin drugs with her female
associate in connivance with one Anthony who was a Nigerian drugs
smuggler in the area of Delhi, Punjab and Haryana and SI Anupama
Rathi was further informed by informer that the said lady, at about
05.45 am to 06.15 am, would go Bhatinda, Punjab by a taxi vehicle
with consignment of Heroin drugs for supply of the same to her party
via Dwarka Mor and if raid would be conducted, then the said lady
Madhu could be apprehended with the huge quantity of drugs. On the
receipt of said information, at about 04.15 am, SI Anupama Rathi had
telephonically informed in this regard to ACP IGIS Sh. Girish
Kaushik, who instructed SI Anupama Rathi to constitute a raiding
party to proceed further. Thereupon, the said information was got
recorded in DD register vide DD No. 2 at around 04.30 am u/s 42
NDPS Act. Thereafter, SI Anupama Rathi had constituted a raiding
party consisting of HC Rajiv Sehrawat, Ct. Om Prakash, Ct. Manjeet,
Ct. Kuldeep, Ct. Mahesh, Ct. Gajanand, Ct. Deepak, W/Ct. Mamta,
W/Ct. Ruby and secret informer and they all were briefed about facts
of secret information. Thereafter, raiding party had collected IO Bag,
UPS printer cum Photocopies, Complete Set of wiring, Car phone
charger, electronic weighing machine and one field testing kit of
Narcotic substance and left their office vide departure entry DD No. 3
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FIR No.143/2021 Page 2 of 26
at around 04.45 am by two private vehicles i.e. one Mahindra TUV
bearing no. DL10CL6270 and other one I10 bearing no. HR31F7273.
SI Anupama Rathi along with HC Rajiv Sehrawat, Ct. Om Prakash,
Ct. Manjeet, W/Ct. Ruby and secret informer were in that Mahindra
TUV driven by Ct. Om Prakash and other team members were in that
i10 car driven by Ct. Gajananad. Thereafter, raiding party reached at
Dwarka Mor at around 05.00 am via Sector-16A, Dwarka main metro
station, where SI Anupama Rathi came out from that car and requested
4-5 passersby to become independent witnesses of proceedings but
none of them agreed and they all went away without disclosing their
whereabouts, so that no notice could be served upon them. Thereafter,
on the road leading towards Najafgarh from Dwarka Mor, SI Anupama
Rathi got deployed her all team members, who all had taken their
position by hiding themselves and SI Anupama Rathi got parked the
said vehicles at some distance from there. SI Anupama Rathi, Ct.
Kuldeep and secret informer had taken their position near Dwarka
Mor and started keeping surveillance of the taxi vehicles coming from
Uttam Nagar side and during the same, they noticed that at about
06.25 AM, one taxi i.e. Swift Dezire No. DL1CZ9076 car of white
colour came/stopped at red light signal and in that vehicle total
passengers were three in number (including driver) and two ladies
One lady was seated on its front left seat and her associate lady was on
its rear seat. The informer pointed out towards the lady, who was on
its rear seat saying that it was Madhu. Thereupon, SI Anupama Rathi
immediately relieved the secret informer from there and given signal
to her team members and on being green light signal when the said
taxi moved towards Najafgarh, the said taxi was intercepted by Ct.
Om Prakash and Ct. Kuldeep by blocking the road by TUV vehicle at
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FIR No.143/2021 Page 3 of 26
Metro Pillar No. 792. Thereafter, SI Anupama Rathi had given her
introduction to the driver of said taxi as well as both the ladies sitting
in the taxi. The lady who was found sitting on its rear seat was
identified as Madhu and while SI Anupama Rathi was giving them her
introduction, accused Madhu had inserted a plastic theli (from a bag
being carried by her) under the driving seat and the other lady, who
was sitting on its front left seat identified as accused Caroline Phocum
had inserted a plastic bag under her seat. Thereupon, SI Anupama
Rathi asked the driver of the taxi to park it on the road side and SI
Anupama Rathi along with W/Ct. Mamta and W/Ct. Ruby had
apprehended both the said ladies. The driver, namely, Narender was
apprehended by Ct. Kuldeep. During search of the said taxi/vehicle
one red colour bag was recovered from under its driving seat and one
plastic bag was also recovered from under front left seat of said
vehicle. Thereafter, in the meanwhile, some public persons had
gathered there and out of them SI Anupama Rathi requested 5-7
passersby to become independent witnesses of proceedings but none
of them agreed and they all went away without disclosing their
whereabouts, so that no notice could be served upon them.
Thereafter, the yellow colour plastic bag, which was hid-
den by accused lady Caroline Phocum was opened and checked and it
was found containing one transparent plastic polythene, tied with red
colour rubber band, which was found further containing some brown
colour powdery substance, which was found to be heroin drugs when
it was checked by field testing kit and its total weight was found to be
01 kg on electronic weighing machine and it was marked as Mark-A.
Thereafter, the recovered plastic theli, hidden by accused Madhu un-
der the driving seat, was opened and checked and it was found con-
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FIR No.143/2021 Page 4 of 26
taining 01 transparent polythene, tied with red colour rubber band and
it was found further containing some brown colour powdery sub-
stance, which was found to be heroin drugs when it was checked by
field testing kit and its total weight was found to be 01 kg when it was
weighed on electronic weighing machine and it was also marked as
Mark-B. Thereafter, the said two ploythenes/thelis were separately
kept into white cloth pieces and parcels were prepared and same were
marked as Mark-A and Mark-B. The red colour bag from which ac-
cused Madhu had taken out a plastic theli, which was inserted under
the driving seat of said vehicle, was also kept into a separate cloth
piece, its parcel was made and it was marked as Mark-C. The above
three parcels were separately sealed with the seal of MSG and signa-
ture of accused ladies were obtained on their respective parcels
marked as Mark-A, Mark-B and Mark-C. On being asked the taxi
driver Narender told IO that his taxi was booked by accused Madhu
through an Ola Cab one week prior and his mobile number was taken
by the acused Madhu and he was told by her that whenever she would
need his taxi, then she would call him directly telephonically, for
which he agreed and it was further disclosed by Narender Singh that
on that day he was called by Madhu telephonically for going to
Bhatinda and also coming back to Delhi from there. Thereafter, the
said parcel exhibit A sealed with the seal of MSG pertaining to the ac-
cused Caroline Phocum was taken into police possession by SI Anu-
pama Rathi. Thereafter, the said sealed parcel exhibit B sealed with
the same seal pertaining to accused Madhu was also taken into police
possession and the said sealed exhibit C pertaining to accused Madhu
was also taken into police possession. The seal after use was handed
over to Ct. Kuldeep and a seal handing over memo was prepared at the
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FIR No.143/2021 Page 5 of 26
spot. Thereafter, both accused ladies were told about said secret infor-
mation by stating to them ” humare pass suchna hai k aap dono heroin
supply ka kaam karte ho, va aaj is vakt bhi heroin supply karne k liye
Delhi se Bhatinda, Punjab ja rhi ho va aap k pass se Heroin baramad
hone ki purn sambhavna hai va aap k pehne hue kapdo se bhi Heroin
va anye pratibandhit madak padharth baramad hone ki prabal samb-
havna hai, isliye mahila police k dwara aap k sharir va pehne hue
kapdo ki talashi amal mein layi jaani hai”. While stating so, both of
them were apprised about their legal rights and both of them were of-
fered to get their search conducted in the presence of any nearby
Gazetted Officer or Magistrate and they were also told that for that
purpose both of them could be produced before such authorities or
such authorities could be called at the spot. Both of them, were also
offered for the search of police officers as well as search of their vehi-
cles before getting their search conducting for which both of them had
refused. Thereupon, both of them were served upon the notices u/s 50
NDPS Act, which were explained to both the accused persons. The re-
ply was written by SI Anupama Rathi as per narration of the accused
as accused Caroline Phocum was illiterate and her thumb impression
was taken on its reply. Thereafter, due to traffic congestion, for further
proceedings both accused ladies with driver, taxi and seized case prop-
erties were brought to the office of IGIS Crime Branch at about 08.15
AM, where both the accused ladies were produced before ACP Girish
Kaushik and he was briefed about the above facts and circumstances.
Thereafter, the superficial search of both the accused persons was con-
ducted by SI Anupama Rathi but no incriminating substance was re-
covered during their body search. Thereafter, on the basis of said facts
and circumstances SI Anupama Rathi prepared her detailed tehrir and
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it was handed over to Ct. Manjeet with the said copies of seizure
memos and sealed parcels with the direction that the tehrir would be
produced before Duty Officer of PS Crime Branch for registration of
this case and sealed case properties with copies of its seizure memos
would be produced before SHO, PS Crime Branch for the proceedings
u/s 55 NDPS Act. After reaching the PS, Ct. Manjeet handed over
tehrir to Duty Officer and pullandas Mark A and B and copy of seizure
memo to SHO, Inspector Govind Chauhan. SHO had confirmed the
FIR number from the DO and put the same on the pullanda and copy
of seizure memo. SHO had also sealed the pullandas with the seal of
GC. SHO also called the concerned MHC (M) ASI Jag Narain along
with register no.19 and got deposited the pullandas and also signed the
relevant entry and made DD entry vide DD No.52A. Ct. Manjeet had
also handed over the pullanda Mark C. Later on Ct. Manjeet had col-
lected the copy of FIR and original tehrir and returned back. Duty Of-
ficer had directed IO to hand over the above documents to ASI Ram
Lal to whom Ct. Manjeet had handed over after reaching back at the
office. Thereupon, the investigation of this case was entrusted to ASI
Ram Lal. At about 4.30 pm while ASI Ram Lal was present in the of-
fice both the accused persons were produced before him. At about
9.30 pm Ct. Manjeet had brought the rukka after registration of FIR
along with DDs i.e. 49A, 52A and 57A. Since both the accused were
ladies therefore ASI Ram Lal had left his office and reached at the res-
idence of Duty MM, Sh. Rahul Jain, then Ld. MM to seek the permis-
sion to arrest both the accused persons. Later on ASI Ram Lal re-
turned back to his office and after making interrogation from the ac-
cused persons they were arrested. Their personal search was con-
ducted by Lady Ct. Ruby and Lady Ct. Mamta. Their disclosure state-
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FIR No.143/2021 Page 7 of 26
ments were recorded. On 29.07.2021 Accused Madhu was produced
before court and her PC remand was obtained and during her PC re-
mand her supplementary statement was recorded. Before proceeding
for the house of the accused persons, permission from ACP was ob-
tained. Later, house search of the premises L49A, Ram Park, Mohan
Garden, Uttam Nagar was conducted. However during search nothing
incriminating was recovered. During investigation of the present case,
ASI Ram Lal had also moved an application under Section 52A for
drawing the sample. On 29.07.2021, ASI Ram Lal had prepared site
plan in the present case at the instance of SI Anupama Rathi. On
30.07.2021 the sampling proceedings of the present case were con-
ducted by Ms. Alka Singh, the then Ld. MM. The inventory was pre-
pared by ASI Ram Lal. Later ASI Ram Lal had submitted the photo-
graphs and CD along with certificate under Section 65B of Indian Evi-
dence Act. During investigation on 04.08.2021 Ct. Shashi Kapoor
was sent along with samples for FSL examination in the present case.
Later on the FSL result in the present case was collected and filed be-
fore the court. ASI Ram Lal had recorded the statements of witnesses
in the present case and after completion of investigation, filed the
charge sheet before the court.
COGNIZANCE AND CHARGE
2. Cognizance of the offence was taken and documents were
supplied to the accused persons. After hearing arguments on charge,
charge was directed to be framed against both the accused persons for
offence u/s 21(c) and 29 of NDPS Act, 1985. Both accused pleaded
not guilty and claimed trial.
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PROSECUTION EVIDENCE:
3. In order to prove its case, prosecution examined 15 witnesses.
4. PW-14/complainant SI Anupama Rathi, HC Rajiv Sehrawat, Ct.
Om Prakash, PW-1 HC Kuldeep, Ct. Mahesh, Ct. Gajanand, Ct.
Deepak, PW-2 W/Ct. Ruby, PW-3 W/Ct. Mamta and PW-4 Ct.
Manjeet were the members of the raiding team. PW-1, PW-2, PW-3
PW-4 and PW-14 all deposed on similar lines as the case of the
prosecution. They all had correctly identified the accused before the
Court and they were cross examined at length by the Ld. Defence
Counsel.
5. PW-5 Sh. Narender S/o Sh. Sohan Singh was the driver of the
Swift taxi car bearing no. DL1ZC 9076. He had deposed that on
27.07.2021, at about 06.00 am, accused Madhu alongwith one another
lady had boarded his taxi and when they reached at the main road,
Dwarka, two vehicles came and some police officers came out from
those cars and stopped their taxi. He had further deposed that both the
accused persons had put their bags under their seats. The polythenes
were checked by the police officers which were found containing
powdery material and police officials, after checking the same
revealed the powdery material to be heroin. The case property
(powdery material) was seized vide seizure memo Ex.PW1/A and
Ex.PW1/B and the bag was seized vide memo Ex.PW1/C. On
questioning, the accused persons had revealed that they are the
supplier of the same. As it was raining therefore the accused persons
were taken to Sector 17,PS. He was cross examined by Ld. Defence
Counsel.
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FIR No.143/2021 Page 9 of 26
6. PW-6 SI Ramlal Sharma stated that after registration of the FIR,
the investigation of the present case was marked to him. He has also
deposed on the similar lines as the case of the prosecution. He was
cross examined by Ld. Defence Counsel.
7. PW-7 Insp. Govind Chauhan stated that on 28.07.2021, he was
posted as SHO at PS Crime Branch, Sector 17, Dwarka and at about
6.55 pm, Ct. Manjeet had come to him along with two pullandas mark
A and B with the seal of MSG sent by Ms. Anupama Rathi along with
copy of seizure memo. He further stated that he counter sealed the
pullandas with the seal of GC and also confirmed the FIR number
from the Duty Officer and mentioned the FIR number on the pullandas
and seizure memos and had also signed the same. MHC (M) ASI Jag
Narain was called along with register no.19 to whom the pullandas
were handed over to be deposited in the malkhana vide register no. 19.
He further stated that he had also signed the relevant entry of register
no.19. After conducting the above proceedings under Section 55
NDPS Act he made DD no.52A in this regard which is Ex.PW7/A.
8. PW-8 ASI Sanjay Kumar stated that on 30.07.2021, he was
posted as photographer in photo section, Crime Branch, Delhi. In the
present case, during the proceedings of section 52-A NDPS Act, he
had taken the photographs. He had further stated that after conducting
the proceedings u/s 52-A NDPS Act, Ld. MM Ms. Alka Singh had
sealed the case property and sample with the seal of AS. The
photographs are Ex. PW8/A1 to A7(colly). He further stated that he
had also given the certificate u/s 65-B of Indian Evidence Act
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FIR No.143/2021 Page 10 of 26
pertaining to the above photographs taken by him through digital
camera.
9. PW-9 HC Shashi Kapoor stated that on 04.08.2021, he was
posted as Constable in the office of IGIS Crime Branch, Delhi,
Dwarka Sector-17 and on that day, he had received forwarding letter,
copy of FIR, seizure memo and other documents from IO of this case
and on his instruction he went to the office of MHC(M) CP Crime
branch, Nehru Place where he met ASI Jagnarain, MHC(M) CP, who
gave him two sealed exhibits sealed with the seal of AS along with
one sample seal having same impression and also bearing name of Ms.
Alka Singh, Ld. MM Dwarka Courts and same was deposited in FSL
Rohini for examination vide RC No. 325/21 and he received the copy
of acknowledgment of case property acceptance from FSL official and
till the possession of said sealed exhibits, same were not tampered
with from its any corner. Thereafter, he had given the said
acknowledgment to the IO along with copy of RC. The copy of RC
was Mark A bearing his signature at point A and copy of
acknowledgment was Mark B bearing his signature at point A.
10. PW-10 ASI Jag Narain was the MHC(M) CP at PS Crime
Branch on 28.07.2021. He stated that on that day, he was called by
concerned SHO in his office with register No. 19. ASI Jag Narain had
proved documents Ex.PW-10/A (OSR), Ex.PW-10/B (OSR), and
Ex.PW-1/C (OSR). He was cross examined by Ld. Defence Counsel
but there is nothing to suggest that he did not support the case of the
prosecution.
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11. PW-11 SI Bijender Rana stated that on 28.07.2021, he was
posted as Duty Officer at PS Crime Branch, Pushp Vihar, Delhi and on
28.07.2021, his duty hours were from 8 AM to 8 PM. He further
deposed that on that day, he recorded FIR of this case bearing FIR No.
143/2021 at about 06.45 PM on the basis of the rukka sent by W/SI
Anupama Rathi through Ct. Manjeet Singh. The computer generated
copy of the FIR is Ex.PW-11/A which bears his signature at point A.
After recording the FIR, he made his endorsement on the rukka, same
is Ex.PW-11/B bearing his signature at point A and handed over the
copy of FIR and rukka to Ct. Manjeet for further handing over to ASI
Ram Lal. He had brought the computer generated GD No. 0057A
recorded by him which is Ex.PW11/C bearing his signature at Point A.
The copy of GD No.00 49A dt. 28.07.2021 vide which he received
the rukka from Ct. Manjeet is Ex.PW11/D is bearing his signature at
Point A. He issued a certificate U/Sec. 65 B of Indian Evidence Act
regarding the computerized copy of FIR Ex.PW-11/E bearing his
signature at point A. He was cross examined by Ld. Defence Counsel.
12. PW-12 ACP Girish Kaushik stated that on 28.07.2021, he had
directed W/SI Anupama Rathi to conduct the raid and to lodge
necessary DD entry. He has proved documents Ex.PW-12/A, Mark A,
Mark B and Mark C. He was cross examined by Ld. Defence
Counsel.
13. PW-13 Dr. Kavita Goyal, Assistant Director (Chemistry), FSL
Rohini stated that on 04.08.2021, two sealed parcels sealed with the
seal of AS were received in her office pertaining to this case from ACP
Crime Branch, Sector 17 Dwarka, Delhi and the same were entrusted
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to her for examination and on being received the said parcels were
found intact and tallied as per forwarded specimen seal. She has
further deposed that during examination of said sealed
parcels/exhibits, it was observed that it contained two parcels, Parcel
A1 was containing exhibit A1 i.e. dark brown coloured coarse
powdery material weight approx. 21.4 grams and Parcel B1 was found
containing exhibit B1 i.e. dark brown coloured coarse powdery
material weight approx. 20.4 grams. The examination was conducted
from 11.11.2021 to 10.12.2021. She further deposed that on
Chemical, TLC & GC-MS examination: exhibit A1 was found to
contain Diacetylmorphine (6.5%), Acetaminophen, Acetylcodeine &
6-Monoacetylmorphine and exhibit B1 was found to contain
Diacetylmorphine (7.5%), Acetaminophen, Dextromethorphan,
Acetylcodeine & 6-Monoacetylmorphine. After examination, the
remnants were resealed with the seal of ‘K.G.FSL Delhi’. The
detailed report in this regard is Ex.PW-13/A which bears her signature
at point A on both the pages with her official rubber stamp. She
further deposed that thereafter, remnants of the exhibits in sealed
condition were sent to the forwarding authority. She was cross
examined by Ld. Defence Counsel.
14. PW-15 ASI Pawan Kumar stated that on 29.07.2021, he was
posted at PS Crime Branch and was discharging his official duties as
assistant of MHC(M) and on that day, on the instruction of IO of this
case, he collected two sealed parcels, both sealed with the seal of
MSG and GC and same were brought in the court of Ms. Alka Singh,
Ld. Duty MM, Dwarka, Court No. 309, where sampling proceedings
were got conducted by IO/ASI Ram Lal of this case in the presence of
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both accused persons, namely, Caroline Phocum and Madhu in this
case u/s 52A NDPS Act and during the same, two samples of 26 gram
each were drawn from parcel Mark-A and Mark-B. The samples
drawn from parcel No. A were marked as A-1 and A-2 and parcels
drawn from parcel no. B, were marked as B-1 and B-2. They all were
sealed with the seal of AS. Thereafter, the above sealed parcels were
collected from the court and were again deposited in the malkhana of
PS Crime Branch. The above sealed samples were not tampered while
under his possession. The photographs were also clicked by concerned
photographer during said proceedings. He was cross examined by Ld.
Defence Counsel.
STATEMENT OF ACCUSED RECORDED U/S 294 CR.P.C.:
15. On 07.05.2025, both accused persons had not denied the
genuineness of proceedings conducted u/s 52 NDPS Act which is
Ex.P1.
STATEMENT OF ACCUSED RECORDED U/S 313 CR.P.C.:
16. On 05.06.2025, all the incriminating evidence was put to the
accused persons for the purpose of recording their statements u/s 313
Cr.P.C.
17. Accused Madhu replied that she was falsely implicated in the
present case and that she was apprehended by the police from her
house. She stated that one day, when she was sleeping, the police
came with Caroline Phocum and asked Madhu about her background
and when they came to know that she was facing the trial in a case u/s
420 IPC, they falsely implicated her in the present case. Thereafter, the
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case property was planted upon her. She said that nothing was
recovered from her possession or at her instance. She said that she
was taken to police station/crime branch office where she was kept
illegally and she was forced to sign some blank/semi written papers
and she was also asked to write under dictation and subsequently those
documents were manipulated and prepared in order to falsely
implicate her in the present case. She said that no notice u/s 50 NDPS
Act was ever given to her. She said that Police implicated her at the
instance of their senior officers and that she was innocent.
18. Accused Caroline Phocum replied that she was falsely
implicated in the present case. She was apprehended by the police
when she was going to walk in the morning as she had sleeping
problem without any intoxication. She said that she used to take some
small quantity of drugs and for that reason she had sleeping problem.
She said that on the said day she was walking on the road and police
official inquired from her about her residence and when she objected
she was taken to the police station and thereafter her residence where
her room mate was residing with her. She said that thereafter, the case
property was planted upon her. She said that nothing was recovered
from her possession or at her instance. She was taken to police
station/crime branch office where she was kept illegally and she was
forced to sign some blank/semi written papers and she was also asked
to write under dictation and subsequently those documents were
manipulated and prepared in order to falsely implicate her in the
present case. No notice u/s 50 NDPS Act was ever given to her. She
said that Police implicated her at the instance of their senior officers.
She was innocent. The accused persons had not opted to lead any
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evidence in their defence.
FINAL ARGUMENTS:
19. Final arguments in the matter were heard on 03.07.2025.
Ld. Counsel for the accused had stated that accused should be
acquitted in the matter as there were contradictions in the statements
of prosecution witnesses and that despite availability of independent
witnesses, no public witness was included in the list of witnesses. The
main thrust of argument taken by the Ld. Defence Counsel was that
there was contradiction in the statement of the witnesses with regard
to the packet from which the contraband was recovered. It was further
submitted that this contradiction went to the root of the matter as the
same was pertaining to recovery of contraband and the benefit of
contradiction in the statement of witnesses pertaining to the same must
be given to the accused persons.
20. Ld. APP had argued that evidence of prosecution
witnesses was consistent and recovery of commercial quantity of 1 Kg
of Heroin each made from both the accused persons was as per
procedure. It was submitted that no defence had come forward from
the accused persons to discharge the reverse burden of proof placed
upon them.
REASONS FOR DECISION AND DECISION:
21. I have considered the rival submissions and gone through the
documents and evidence available on record.
22. Before proceeding to discuss the merits of the case, it is
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important to mention the legal provisions applicable. Section 35 of
NDPS Act presumes culpable mental state of the accused i.e. there is
reverse burden of proof upon accused. It provides that the Court shall
presume the culpable mental state of the accused 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. Further, Section 54 of the NDPS
Act provides that the Court shall presume unless the contrary is
proved, that the accused has committed an offence under the Act for
which he has been charged in case he is found in possession of the
substance as mentioned in the Section for which he has no satisfactory
explanation1. 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. The procedure
provides that when the Officer u/s 41 NDPS Act receives secret
information, he has to inform the same to his superior Officer within
72 hours. In case, any arrest or seizure is done, the Officer mentioned
u/s 42 NDPS Act has to forward the same to the IO without
unnecessary delay. The Officer mentioned u/s 42 NDPS Act is the
complainant who apprehends the accused and does recoveries himself
or through the raiding party. The complainant is the witness who
claims recovery of prohibited substances from the possession of the
accused and these claims are verified and substantiated by the IO
during investigation. It is further mandatory that the IO has to take
measures for disposal of the alleged substances as per Section 52(4) of
the Act. Further, the person arrested has to be produced before the
Magistrate and the contraband seized is required to be dealt with by
the Officer u/s 53 NDPS Act or the SHO in accordance with Section
52A of NDPS Act. For raising the presumption u/s 54 of the Act it
1 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684
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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
innocence2. 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.
23. The record of the present case reveals that both accused persons
stand charged for criminal conspiracy to deal in/possess narcotic drugs
and further for the possession of 1 Kg of Heroin (chemical name
Diacetylmorphine) each, concealed in the car in which they were
travelling specifically taxi Swift Dzire white colour bearing no.
DL1ZC 9076, in contravention of the provisions of NDPS Act. Both
accused were apprehended on the basis of secret information which
was received by PW-14 SI Anupama Rathi on 28.07.2021 at about
04.00 am when she was present in her office room. She was informed
by the secret informer that one lady namely Madhu residing at Mohan
Garden, Uttam Nagar who used to indulge in supply of heroin drugs
with her female associate in connivance with one Nigerian person,
namely Anthony, who smuggled in the area of Delhi Punjab and
Haryana, would, at about 05.45 am-06.15 am, go to Bhatinda, Punjab
by taxi with consignment of heroin durgs for supply of the same to her
party. She said that she was informed that the accused would go via
2 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684; Noor Aga Vs. State of Punjab, (2008)
16 SCC 417
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FIR No.143/2021 Page 18 of 26
Dwarka Mor and she could be apprehended, if raid is conducted. This
information was shared by PW-14 with PW-12 ACP IGIS Sh. Girish
Kaushik at about 04.15 am, who directed PW-14 to conduct the raid
and in this regard DD No. 2 was made in DD register at around 04.30
am in compliance of Section 42 NDPS Act which is Ex.PW-12/A.
PW-12 has confirmed the same showing sufficient compliance of
Section 42 NDPS Act, within time.
24. After compliance of Section 42 NDPS Act comes the part
of seizure and arrest in public place u/s 43 NDPS Act. This Section
gives power of seizure and arrest to Officer u/s 42 NDPS Act, if such
Officer has reason to believe that an offence punishable under this Act
has been committed. Officer u/s 42 NDPS Act may detain such
person and conduct his search and may also arrest him and any other
person in his company.3 In the present case, PW-14 on receiving
secret information, had reasons to believe that accused was
committing an offence punishable under this Act and thus proceeded
to apprehend her and search her.
25. After informing PW-12 and getting permission for
conducting raid, PW-14 organized a raiding party consisting of
herself, HC Rajiv Sehrawat, Ct. Om Prakash, PW-1 Ct. Kuldeep,
PW-2 W/HC Ruby, PW-3 W/Ct. Mamta, PW-4 Ct. Manjeet, Ct.
Mahesh, Ct. Gajanand, Ct. Deepak and secret informer. She took the
IO bag, UPS printer cum photocopier, complete set of wiring, car
phone charger, electronic weighing machine and one field testing kit
with her and all the members of the raiding party alongwith the secret
3 Beckodan Abdul Rahiman Vs. State of Kerala, AIR 2002 Supreme Court 1810 & Binod
Ram Krishna Yadav Vs. Union of India, AIROnline 2024 Gau 356 (Gauhati High Court)
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FIR No.143/2021 Page 19 of 26
informer started from the office in two private vehicles at about 04.45
am. PW-14 stated that she made departure entry vide DD No.3
Ex.PW-14/A. PW-14 has further stated that when they reached at the
spot, public persons were requested to join investigation but none
joined. She deployed all her team members at the spot to take their
positions and keep surveillance of taxis coming from the side of Uttam
Nagar. She stated that at about 06.25 am, the said Swift Dzire taxi
was apprehended with passengers sitting in it, one being the driver and
other two being the accused persons. Thereafter, the proceedings as
mentioned in the case of the prosecution, took place and the both the
accused persons were arrested.
26. Ld. Defence Counsel has argued that no public
person/independent witness was made to join the search and seizure
proceedings and this made the case of the prosecution weak and
doubtful. In view of the arguments, the evidence of members of
raiding team has been perused. PW-14 stated that she made efforts to
join public persons in the raiding team but none of them joined and no
notice was also given to them. The Hon’ble Supreme Court of India
in Tahir Vs. State, (1996) 3 SCC 338 has observed that conviction can
be recorded on sole testimony of police witnesses without
corroboration from a public witness, if it inspires confidence. Thus,
non-joining of independent witnesses is not fatal to the case of the
prosecution, if statement of police witnesses is reliable and
trustworthy.4 The same has to be seen on the basis of appreciation of
evidences.
4 Raveen Kumar Vs. State of Himachal Pradesh, 2020 SCC Online SC 869 & Chidi Berr
Nwayoga @ James Vs. State, Crl. Appeal No. 1087/2017 decided by Hon’ble High Court of
Delhi on 24.08.2022.
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27. In view of the above discussion, this Court now needs to
go through the actual search and seizure proceedings done at the spot
by PW-14 alongwith the raiding team. Section 50 of NDPS Act
provides the conditions under which the search of persons shall be
conducted and the same is mandatory in law. It provides that when
officer authorized u/s 42 NDPS Act is about to search any person
under Sections 41/42/43 NDPS Act, he shall, if the person so requires,
take such person without unnecessary delay to the nearest Gazetted
Officer or the nearest Magistrate. PW-14 stated that at about 06.25
am, when the Swift Dzire taxi was apprehended and the secret
informer had identified accused Madhu, she had given her
introduction to the driver as well as both the accused persons sitting in
the car. The driver was instructed to park the taxi on the road side and
thereafter, the search of the taxi was undertaken upon which the
contraband namely, 1 Kg of heroin each was recovered from the bags
hidden by the accused persons as stated above. Thereafter, notice was
given to the accused persons u/s 50 NDPS Act and they gave their
replies that they did not wish to be searched by any officer or
Magistrate. Once accused has been given notice u/s 50 NDPS Act, his
search has to be conducted. In the present case, after giving of notice
u/s 50 NDPS Act, PW-14 took the search of both accused persons but
did not recover any other incriminating substance. Thereafter, as
stated by PW-14, the tehrir Ex.PW-14/B which was prepared by her
and three pulandas Mark A, Mark B and Mark C which were sealed
with the seal of MSG were sent to PS Crime Branch through PW-4 Ct.
Manjeet for proceedings u/s 55 NDPS Act. PW-4 has stated that he
had handed the tehrir to Duty officer PW-11 and pulandas Mark A,
Mark B and copy of seizure memo to PW-7 Insp. Govind Chauhan.
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He further stated that SHO sealed the pulandas with the seal of GC
and also called concerned MHC(M) PW-10 ASI Jag Narain to his
office alongwith register no. 19 and got the pulandas deposited with
him vide DD No. 52A. He thereafter said that he also handed over
pulanda Mark C. Thereafter, as stated by the witness, further
investigation of the case was marked to PW-6 SI Ramlal who
conducted the further proceedings and ensured further compliance of
the provisions of the NDPS Act.
28. The Ld. Defence Counsel has argued that the recovery in
the present case is doubtful which is evident from the statements of
witnesses. To appreciate the argument of the Counsel, the evidence of
PW-4, PW-7 and PW-10 is relevant. As per PW-4, accused Caroline,
on seeing the raiding party had taken out one panni from a bag and
had put the same under the driver seat. From this bag, 1 kg heroin was
recovered and the same was marked as Mark A. The polythene
recovered from the possession of accused Madhu was also found
containing 1 kg heroin and the same was marked as Mark B. The bag
was marked as Mark C. This case property was sealed with the seal of
MSG which all was handed over to PW-4 at about 04.30 pm to be
given to the SHO concerned. The SHO concerned is PW-7 who stated
that at about 06.55 pm, PW-4 had come to him alongwith two
pulandas Mark A and Mark B sealed with the seal of MSG sent by
PW-14 alongwith copy of seizure memo. He said that he counter-
sealed the pulandas with the seal of GC and mentioned the FIR
Number on the pulandas and seizure memos and also signed the same.
He further stated that PW-10 ASI Jagnarain was called with register
no. 19 to whom the pulandas were handed over to be deposited in the
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malkhana vide register no. 19. PW-10 had also submitted that PW-7
had given him two sealed parcels Mark A and Mark B, one sealed with
the seal of MSG and GS and other sealed with the seal of ASG and
GC which he deposited in the malkhana, making relevant entry in
register no. 19. He said that he also made relevant entries in register
no. 19 regarding receipt of personal search memos of the accused
persons. On perusal of register no. 19, it is seen that seizure memo of
heroin Ex.A bearing Mark A and seizure memo of heroin Ex.B bearing
Mark B was deposited in the malkhana vide relevant entry
Ex.PW-10/A and personal search articles were deposited in the
malkhana vide Ex.PW-10/B. There is a small entry stating seizure
memo Ex.C made after the entries of personal search memos and it is
seen that seizure memo Ex.C is with regard to the red colour bag
which was recovered from accused Madhu. It is here that the case of
the prosecution falls apart. From the evidence of PW-4, it is evident
that he had taken three pulandas Mark A, Mark B and Mark C to the
PS Crime Branch but PW-7 has deposed only with regard to receipt of
two pulandas Mark A and Mark B which were deposited in the
malkhana by PW-10. There is no mention of pulanda Mark C and it is
suspicious as to how its entry was made after the entry regarding the
personal search memos in register no. 19. Further, from the evidence
of PW-1, it is seen that the case property was produced before the
Court in the following manner:
a) one white cloth pulanda sealed with the seal of AS marked as A
having particulars of the case was opened and case property consisting
of one yellow colour polythene (loose) further containing one
transparent polythene tied with the help of red rubber band which
further contained transparent polythene tied with the help of redSC No.55/2022
FIR No.143/2021 Page 23 of 26
rubber band containing heroin was exhibited as Ex.P1.
b) one white cloth pulanda sealed with the seal of AS marked as B
having particulars of the case was opened and case property consisting
of one white colour polythene (loose) further containing one
transparent polythene tied with the help of red rubber band which
further contained transparent polythene tied with the help of red
rubber band containing heroin was exhibited as Ex.P2.
c) one white colour pulanda having particulars of the present case
marked as Mark C sealed with the seal of MSG and GC containing
one red colour bag was exhibited as Ex.P3.
29. It is evident that the case property produced before the
Court was not the same as was allegedly recovered. There is full
suspicion regarding the recovery and seizure made in the present case
for the following reasons:
a) during sampling proceedings u/s 52A NDPS Act, after the samples
were taken, the concerned MM has observed that the remaining
narcotic substances were again put back in the same polythene bags as
above mentioned and are wrapped in the same white cloth and
pulandas already marked as A and B. In pulanda A produced before
the concerned MM, there was one transparent polythene bag inside
one yellow colour polythene bag. In pulanda B produced before the
concerned MM, there was one transparent polythene bag inside one
white colour polythene bag. Going back to the evidence of PW-4, it is
seen that from accused Caroline, one polythene containing heroin was
recovered and from accused Madhu, again one polythene containing
heroin was recovered. As per PW-14, from accused Caroline, one
yellow colour plastic bag was recovered which contained oneSC No.55/2022
FIR No.143/2021 Page 24 of 26
transparent plastic polythene tied with red colour rubber band from
which heroin was recovered. As per PW-14, from accused Madhu,
one plastic thaili was recovered which contained one transparent
polythene tied with red colour rubber band from which heroin was
recovered. According to PW-14 both the said polythenes were
separately kept in white cloth piece and parcels were prepared and
same were marked as Mark A and Mark B and for the red colour bag
another parcel was prepared which was marked as Mark C. The
evidence of PW-4 and PW-14 is inconsistent on the point of the
pulandas prepared. Further, the pulandas prepared during proceedings
conducted u/s 52A NDPS Act do not match with the pulandas
produced in the Court. Even the proceedings conducted u/s 52A
NDPS Act do not mention any white cloth piece as stated in the
evidence of PW-14. There are major inconsistencies in the recovery
and seizure proceedings which is evident from the statement of
witnesses.
b) Further, PW-1 had stated that Ex.P3 was sealed with the seal of GC
while Ex.P3 was never produced before PW-7. There is no
explanation as to how the Ex.P3 was bearing the seal of PW-7.
30. Accused persons namely, Caroline Phocum and Madhu have
been charged for offence u/s 21(c) & 29 of NDPS Act. Section 21(c)
NDPS Act provides punishment for possession of any commercial
quantity of psychotropic substance which in the present case is
Heroin. However, considering the overall facts and circumstances of
the present and given the above observations, both accused persons
namely Caroline Phocum and Madhu are acquitted of the offences
punishable under Section 21(c) & 29 of NDPS Act as recovery of any
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narcotic substance from them has not been proved by the Prosecution.
CONCLUSION:
31. Thus, the accused persons namely, Caroline Phocum and Madhu
are Acquitted for the offence punishable u/s 21(c) & 29 of NDPS Act,
1985, for which they have been charged.
32. Bail bonds accepted in terms of Section 437A Cr.P.C and
shall remain in force for six months from today, in case no appeal is
filed.
33. Case property is confiscated to the State and in case no
appeal is filed within the prescribed time, the same may be disposed
of, as per rules. File be consigned to Record Room, after due
compliance.
Announced in the open court
today i.e 16th July, 2025
(BHAVNA KALIA)
Special Judge (NDPS)-01: SW District
Dwarka Courts: New Delhi
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