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Delhi District Court
State vs Mohd. Dhobir on 19 July, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No. 9661/2016
CNR No. DLND01-016542-2016
FIR No. 182/2016
PS CRIME BRANCH, NEW DELHI
U/s 21 NDPS ACT,1985
STATE VERSUS MOHD. DHOBIR
Date of Institution : 21.12.2016
Date of Arguments : 04.07.2025
Date of Judgment : 19.07.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 7
4. Plea of the Accused 29
5. Submissions made on behalf of the State 29
6. Submissions made on behalf of the Accused 31
7. Relevant Law & the Case Laws 34
8. Appreciation of Evidence 41
9. Conclusion & Findings 71
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.07.19
11:52:30 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/19.07.2025
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 1 of 72
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE / SPECIAL JUDGE, NDPS:
NEW DELHI DISTRICT: PATIALA HOUSE COURTS:
NEW DELHI
IN RE:
SC No. 9661/2016
CNR No. DLND01-016542-2016
FIR No. 182/2016
PS CRIME BRANCH, NEW DELHI
U/s 21 NDPS ACT,1985
Brief Details of the Case & Memo of Parties
STATE VERSUS MOHD. DHOBIR
Date of Institution : 21.12.2016
Date of Arguments : 04.07.2025
Date of Judgment : 19.07.2025
A) Case FIR No. : 182/2016
B) Charges framed under section : 21(b) of NDPS
Act,1985.
C) Name of the complainant : SI Jai Prakash
D) Name of the accused : Mohd. Dhobir
S/o Sh. Mohd. Dulal,
R/o 5/132, Nejam
Nagar, Hazrat
Nizamuddin, New
Delhi.
E) Plea of the accused : Not guilty
F) Final Order : Convicted
Digitally
signed by
ATUL
ATUL AHLAWAT
G) Date of Order : 19.07.2025 AHLAWAT Date:
2025.07.19
11:52:38
+0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 2 of 72
JUDGMENT
(Pronounced on the 19th day of July, 2025)
Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on
26.10.2016, when a secret information was received by SI Jai
Prakash, who was working with the Narcotics Cell Office, PS
Crime Branch and the secret informer appeared before him at
05:30 PM and informed that the accused Mohd. Dhobir was a
supplier/dealer of Heroin and on that day between 07:30-08:PM,
the accused would be supplying a consignment of Heroin to a
prospective buyer on the Bhairon Marg, before the Railway Over
Bridge on the said road towards the Bhairon Mandir, while
coming from the Ring Road. Furthemore, he was also informed
that if the trap is laid in time, then the accused and the
prospective buyer could be caught red handed.
2. After satisfying himself regarding the secret information,
SI Jai Prakash produced the secret informer before Inspector
Vijender Singh and briefed him about the information so
received. Thereafter, the secret information was duly forwarded
to ACP/Narcotics Cell, Crime Branch Sanjeev Kumar Tyagi over
a telephonic call. The concerned ACP then gave the orders to
constitute a raiding team and to take appropriate action as per the
law.
3. The IO SI Jai Prakash then recorded the information
received from the secret informer in the roznamcha register vide
Digitally
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 3 of 72 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:52:45
+0530
DD No. 24, Ex. PW-6/A at 06:20 PM and constituted a raiding
team consisting of himself, HC Om Prakash, HC Ravinder
Kumar and the secret informer. The raiding team along with the
secret informer left the PS in an official vehicle after recording
the departure entry @ 6:40 PM vide DD No. 25, Ex. PW-7/A.
4. On the way towards the spot, the IO requested the passerby
at Shanti Van Red Light, at Rajghat and lastly at IP Estate Bus
Stop, however, none of them agreed to join the investigation,
citing their genuine difficulties and left without disclosing their
names and other details. Thereafter, the raiding party reached the
spot at around 07:20 PM and the IO briefed the members of the
team and they took their positions near the railway over bridge
on the Bhairon Marg.
5. At about 07:40 PM, the accused Mohd. Dhobir came there
on foot while wearing a maroon-colored round collared half
sleeve T-Shirt and blue jeans. While the accused was about 20
meters away, the secret informer identified and pointed towards
him and the secret informer proceeded ahead towards the
Bhairon Mandir. At that time, the accused stopped at a distance
of about 20 meters from the Railway Bridge and it looked like he
was waiting for someone. After staying at the spot for about 10
minutes, while no one came to meet the accused, he started
walking back towards the Ring Road and he was overpowered by
the members of the raiding party at about 07:50 PM.
6. The IO signaled towards the driver of the official vehicle,
Ct. Rohit and the gypsy was brought next to where the accused
person was being detained. The IO then informed the accused of
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 4 of 72
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:52:52
+0530
the secret information and his right to be searched in the presence
of a Gazetted Officer or a Magistrate. The accused informed the
IO that he is an illiterate and only knows how to sign in English.
The IO then informed him of his rights and furnished the notice
u/s 50 of the Act, Ex. P-1. The accused declined to be searched in
the presence of a Gazetted Officer or a Magistrate; and also
declined the offer to search the members of the raiding team and
the official vehicle. The accused then acknowledged the receipt
and his dis-inclination vide Ex. PW-2/B on the carbon copy of
the notice u/s 50 of the Act, Ex. PW-2/A.
7. Upon the personal search of the accused, from the right
dab of his wearing blue jeans pocket, one see-through plastic
packet/ thaili with its mouth being fastened with a rubber band
was recovered. The said plastic packet/ thaili was found
containing an earthy soil colored powder substance and upon
checking the same with the field-testing kit, it was found positive
for Heroin. The seized contraband was weighed with the
electronic weighing machine and its gross weight with the plastic
packet/ thaili was found to be 170 grams (more than small
quantity of 5 grams ; less than the commercial quantity of 250
grams).
8. The IO then prepared two separate parcels of 5 grams each
from the seized contraband, in see-through plastic packet/ thaili
with their mouth being fastened with a rubber band. They were
converted into a pullanda by putting them in a white cotton cloth
and they were marked as parcels “A” and “B”, respectively. The
residue contraband was kept in the original see-through plastic
ATUL
AHLAWAT
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 5 of 72 Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:52:59 +0530
packet/ thaili with its mouth being fastened with a rubber band
and it was also converted into a pullanda by putting it in a white
cotton cloth and it was marked as parcel “C”. The IO then affixed
the seal of “8C PS NB NEW DELHI” on all the sealed pullandas
and handed the seal over to HC Ravinder Kumar. The IO then
filled the FSL form and affixed his official sample seal on the
FSL form as well.The IO then seized the the sealed pullandas and
the FSL Form vide Seizure Memo, Ex. PW-2/C. Thereafter, the
IO sent the tehrir along with the sealed pullandas and the FSL
Form to the PS, through HC Om Prakash, for getting the case
FIR registered.
9. HC Omprakash then produced the sealed pullandas, the
FSL Form and the Seizure Memo before SHO, PS Crime Branch
for getting the proceedings u/s 55 of the Act to be carried out.
After getting the present case FIR, Ex. PW-1/A registered
through the Duty Officer, the details of the case were mentioned
on the sealed pullandas, the FSL Form and the seizure memo.
Thereafter, the they were signed by the SHO Inspector Virender
Kumar and he affixed his seal “VSS” on the same.
10. SHO Inspector Virender Kumar prepared the report u/s 55
of the Act and the same was entered vide DD No. 03 on
27.10.2016. The investigation was marked to SI Sanjay Neolia
and the original tehrir and computerized print-out were handed
over to him by HC Om Prakash. After completion of the
investigation, the chargesheet was filed before this Court on
21.12.2016. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:53:06
+0530CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 6 of 72
11. After compliance of section 207 Cr.P.C, 1973, the charges
were framed by my Ld. Predecessor on 20.01.2017 u/s 21(b) of
the NDPS Act, 1985 against the accused Mohd. Dhobir. The
accused pleaded not guilty and he had claimed trial.
Prosecution Evidence:
12. To prove its case, the prosecution has examined 12 (Nine)
witnesses, out of which is 1 Expert/FSL Witness; and remaining
11 are police witnesses, including the 2 Investigating Officers
and recovery/seizure witnesses.
13. Expert witness:
(13.1.1) PW-5 is Sh. M.L. Meena and he is the FSL
Expert. He had prepared the FSL Report, Ex. PW-5/A, after he
had examined the parcel marked as Ex. “A”, weighing 6.23
grams (approx.) and upon chemical examination, it was found
containing “Diacetylmorphine(heroine)”, “6-
Monoacetylmorphine”, “Phenobarbital”, “Trimethoprim”,
“Caffeine”, “Alprazolam” and “Acetaminophen”.
(13.1.2) PW-5 Sh. M.L. Meena had further deposed that
upon chemical examination the Ex. “A” was found containing
4.9% of “Diacetylmorphine(heroine)” and 5.9% of
“Phenobarbital.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:53:12
+0530CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 7 of 72
14. Police witnesses:
(14.1.1) PW-1 is HC Sudhir and he is the Duty Officer.
Through his testimony, the prosecution has sought to bring on
record the FIR, Ex. PW-1/A; the endorsement on the rukka, Ex.
PW-1/B; The entries vide DD No. 2 (kayami entry) ,3 and 4, Ex.
PW-1/C to Ex. PW-1/E, respectively.
(14.1.2) PW-1 HC Sudhir during his cross examination
conducted by Ld. Defense Counsel was put the entries, DD No.
14,15,16 and 17, dated 26.10.2016 and the same were exhibited
as Ex. PW-1/DA(Colly.) and DD No. 5,6,7,8 and 9 dated
26.10.2016 and the same were exhibited as Ex. PW-1/DB(Colly).
He categorically denied the kayami DD No. 2 was ante-time and
ante-dated at the behest of his superior officers and that is why it
didn’t contain the gist of the present case FIR.
(14.2.1) PW-3 is ASI Jagnarain and he is the then
MHC(M). Through his testimony, the prosecution has sought to
bring on record the relevant entry at serial no. 2665 in the
Register No. 19, Ex. PW-3/A qua the deposit of three sealed
pullandas and the FSL form. He also sought to prove the relevant
entry at serial no. 2666 in the Register No. 19, Ex. PW-3/B qua
the deposit of the personal search articles of the accused.
(14.2.2) PW-3 ASI Jagnarain had further deposed that on
28.10.2016, he handed over one sealed pullanda along with the
RC Form No. 380/21/16, Ex. PW-3/C (Since entry at serial no.
2666 in the Register No. 19, qua the deposit of the personal
ATUL
AHLAWAT
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 8 of 72 Digitally signed
by ATUL
AHLAWAT
Date: 2025.07.19
11:53:19 +0530
search articles of the accused was already exhibited as Ex. PW-
3/B, therefore, so as to avoid any confusion, the RC Form shall
now be read as Ex. PW-3/C.) (emphasis supplied) to Ct. Pawan
for submitting/depositing the same with FSL, Rohini.
Furthermore, the acknowledgement of the receipt was brought on
record as Ex. PW-3/D.
(14.3.1) PW-8 is Ct. Pawan Kumar and he had deposited
the sealed pullanda marked Ex. “A”, along with the FSL Form
vide RC No. 380/21/28.10.2016 to FSL , Rohini, after collecting
the same from the MHC(M) HC Jagnarain. He deposited the
Receipt No. FSlL-2016/CHE-8231 dated 28.10.2016 to the
MHC(M). Till the time the case property remained in his
possession, the same was not tampered with.
(14.4.1) PW-7 is SI Jai Prakash and he is the 1st
Investigation Officer/Enquiry Officer. He had deposed that on
26.10.2016, while he was present at his office situated at old PS
Kotwali, Daryaganj, at about 05:30 PM, a secret informer came
to his office and informed him that one person namely Dhobir
was a supplier of Heroin and on that day between 07:30-08:00
PM, he would be supplying huge quantity of the said contraband
to some person on the Bahairon Marg, while coming from the
side of the Ring Road and if the raid is conducted, the said
person could be apprehended.
(14.4.2) PW-7 SI Jai Prakash further deposed that at about
05:45 PM, he informed his superior, Inspector Vijender, after
satisfying himself with regard to the secret information. He also
Digitally
signed by
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 9 of 72 ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:53:25
+0530
produced the secret informer before Inspector Vijender and the
latter also interrogated him and satisfied himself. Inspector
Vijender then informed ACP Sanjeev Kumar Tyagi telephonically
and the latter directed to conduct the raid immediately. He
recorded the DD No. Ex.PW-6/A in roznamcha at 06:20 PM and
copy of the same was given to Inspector Vijender for proceeding
u/s 42 of the NDPS Act,1985.
(14.4.3) PW-7 SI Jai Prakash further deposed that upon the
directions of Inspector Vijender, he called HC Om Prakash and
HC Ravinder in his office and briefed them about the secret
information and later prepared the raiding party consisting of
himself, HC Om Prakash and HC Ravinder. Thereafter, they
along with the secret informer left for the spot in the official
police gypsy bearing registration no. DL-1CM-1344, being
driven by Ct. Rohit with the IO Bag, field testing kit and the
electronic weighing machine, after recording the departure entry
vide DD No. 25, Ex. PW-7/A.(14.4.4) PW-7 SI Jai Prakash further deposed that they
went to Bhairon Marg via Raj Ghat, ITO Flyover and Ring Road.
They parked their vehicle prior to the Railway Bridge at Bhairon
Marg at about 07:15 PM. On their way, he had requested 6
passersby at Shantivan Red Light; 6 passersby in front of Raj
Ghat; and 5 passengers at IP Estate Bus Stop to join the
investigation after briefing them about the secret information,
however, they all left without disclosing their names and other
particulars.
Digitally signed
by ATUL
AHLAWAT
ATUL Date:
AHLAWAT 2025.07.19
11:53:32
+0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 10 of 72
(14.4.5) PW-7 SI Jai Prakash further deposed that he
instructed the driver Ct. Rohit to remain inside the vehicle and
thereafter, he briefed the members of the raiding team and took
their positions and waited for the accused. At about 07:40 PM,
accused Mohd. Dhobir came from the T-Point of the Ring Road
and he was going towards Bhairon Mandir. At that time, the
accused was wearing blue colored jeans and maroon colored T-
Shirt. While being at a distance of 20 meters, the secret informer
pointed towards the accused as the supplier of heroin. After
identification, the secret informer left towards Bhairon Mandir.
(14.4.6) PW-7 SI Jai Prakash further deposed that they
stayed at their respective positions, while the accused started
waiting for someone. After about 10 minutes, the accused started
going towards the Ring Road and with the help of the members
of the raiding party, he apprehended the accused at about 07:50
PM. Upon interrogation, the accused disclosed his name. He
introduced himself and other members of the raiding party to the
accused and also requested 5-6 passerby to join the investigation,
however, they all left the spot without disclosing their names and
addresses while citing their genuine difficulties. He then
informed the accused of the possibility of recovery of contraband
from his possession and for that reason the personal search of the
accused was required to be conducted.
(14.4.7) PW-7 SI Jai Prakash further deposed that he
informed the accused of his legal rights and that he could be
searched in the presence of a Gazetted Officer or a Magistrate,
after explaining him the meaning and purport of the said officers.
Digitally
signed by
ATUL
ATUL AHLAWAT
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 11 of 72 AHLAWAT Date:
2025.07.19
11:53:38
+0530
He also informed him that the said officers could be called on the
spot, if the accused so desired. He also offered the accused to
take the personal search of the police party or the official vehicle.
He was informed by the accused that the accused was an
illiterate, however, he knew how to sign in English language. He
thereafter, prepared the notice u/s 50 of the NDPS Act, Ex. P-1
and the carbon copy of the same, Ex. PW-2/A was served upon
the accused. The accused declined the option to be searched in
the presence of the Gazetted Officer or a Magistrate and also
refused to take search of the police officals and the official
vehicle. The refusal was recorded on the carbon copy, Ex. PW-
2/A from point “X” to “X” and was exhibited as Ex. PW-2/B. He
categorically deposed that whatever was stated by the accused,
was recorded by him, as the accused was an illiterate and later it
was signed by the accused at point “B”.
(14.4.8) PW-7 SI Jai Prakash further deposed that he took
the search of the accused and one transparent polythene was
recovered from the front pocket of his wearing blue jeans. The
mouth of the said polythene was tied with a rubber band and
upon opening it was found containing matiyala colored powder.
The said powder was checked on the field-testing kit and it gave
a positive result for heroin. The polythene bag along with the
substance was measured on the weighing machine and it was
found to be 170 grams. Thereafter, 02 samples of 05 grams each
were drawn for sample purpose and same were kept in two
different small transparent pouches and their mouths were tied
with rubber bands. They were converted to cloth pullandas and
marked as Mark “A” and “B”, respectively. The remaining
Digitally
signed by
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 12 of 72 ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:53:46
+0530
heroin was kept in the same polythene in which it was recovered
and its mouth was also tied with a rubber band. It was converted
into a cloth pullanda and was marked as Mark “C” (emphasis
supplied is mine).
(14.4.9) PW-7 SI Jai Prakash further deposed that he filled
the FSL Form and all the three pullandas were sealed with the
seal of “8 CPS NB DELHI” and the same seal was also put on
the FSL form. Thereafter, he took them in his possession vide
seizure memo, Ex. PW-2/C. He prepared the rukka, Ex. PW-7/A-
1 (Since the departure entry vide DD No. 25 was already
exhibited as Ex. PW-7/A on 13.09.2019, therefore, so as to avoid
any confusion, the seizure memo is re-exhibited and shall now be
read as Ex. PW-7/A-1.) (emphasis supplied). He then handed
over the rukka, the sealed pullandas, the FSL form and carbon
copy of the seizure memo to HC Om Prakash, for handing over
the same to the SHO concerned, for carrying out the proceedings
u/s 55 of the NDPS Act, 1985.
(14.4.10) PW-7 SI Jai Prakash further deposed that at about
03:40 AM, IO SI Sanjay Neolia reached the spot and he handed
over the custody of the accused and the documents prepared by
him. Thereafter, IO SI Sanjay Neolia prepared the site plan, Ex.
PW-2/DA at his instance from 03:50- 04:00 AM and recorded the
statement of HC Ravinder. IO SI Sanjay Neolia made
interrogations from the accused and the accused was arrested
vide memo, Ex. PW-2/D. From the personal search of the
accused conducted vide memo, Ex. PW-2/E, the original notice
u/s 50 of the NDPS Act,1985; Rs. 1,220/- in cash and one
Digitally
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 13 of 72 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:53:53
+0530
Driving License were recovered. The 2nd IO SI Sanjay Neolia
then recorded the disclosure statement of accused, Ex. PW-2/F.
Therafter, they came back to the PS and the IO SI Sanjay Neolia
recorded the statement of the witnesses and the case property was
deposited in the malkhana.
(14.4.11) PW-7 SI Jai Prakash further deposed that on
27.10.2016, he prepared the report u/s 57 of the NDPS Act, 1985,
Ex. PW-7/B and the same was put up before Inspector Vijender
Singh, for forwarding it to the ACP concerned.
(14.4.12) PW-7 SI Jai Prakash correctly identified the case
properties i.e., polythene containing contraband Mark “A”, Ex.
P-4; polythene containing contraband Mark “C”, Ex. P-2;
polythene containing contraband Mark “B”, Ex. P-3; and the
original notice u/s 50 of the NDPS Act, 1985, Ex. P-1.He also
correctly identified the accused person.
(14.4.13) PW-7 SI Jai Prakash during his cross examination
conducted by the Ld. Defense Counsel had deposed that when
the secret informer came to his office, he was present alone in his
chamber and that he had not informed the members of the raiding
party immediately about the said information. His superior in-
charge Inspector Vijender was present in the office only. He did
not know about the whereabouts of ACP concerned at that time
and also did not know whether Inspector Vijender had called the
ACP or not. He also deposed that he was informed by Inspector
Vijender about the instructions received from ACP, regarding the
legal proceedings to be conducted. Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.07.19
11:53:59 +0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 14 of 72
(14.4.14) PW-7 SI Jai Prakash during his cross examination
conducted by the Ld. Defense Counsel had deposed that the
name of the person to whom the accused was supposed to deliver
the heroin was not informed by the secret informer. He also
categorically deposed that no notice was given/served by him to
the public persons who had refused to join the investigation. He
also specifically deposed that besides the present case, one other
case was also being investigated, for the offence which took
place at the same place. He also deposed that there were jhuggies
situated near the spot and there were certain small shops there as
well. He had requested the persons residing in the said jhuggies
to join the investigation; however, no one came forward.
Although the gate no. 1 of Pragati Maidan was nearby, however,
no one was present there.
(14.4.15) PW-7 SI Jai Prakash during his cross examination
conducted by the Ld. Defense Counsel had deposed that the spot
was in the territorial jurisdiction of PS Tilak Marg and they were
present there in civil clothes. He deposed that the departure entry
qua the official vehicle was made by him, however, he changed
his stance to the same being entered by SI Sanjal Neolia instead.
He further deposed that the members of raiding team were
deputed to stand on strategic point by him and the secret informer
pointed out towards the accused from a distance of about 20
meters.
(14.4.16) PW-7 SI Jai Prakash during his cross examination
conducted by the Ld. Defense Counsel had deposed that the
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 15 of 72 AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:54:05 +0530
accused came from the side of Ring Road on the Bhairon Marg
and he did not remember whether the accused was talking over a
phone, prior to his apprehension, however, no mobile phone was
recovered from the accused. He also deposed that he had not
informed the names of the Gazetted Officer or the Magistrate to
the accused, who were available near the spot. He also
categorically deposed that he could not inform about the size of
the polythene from which the contraband was recovered from.
He also deposed that he had not prepared the handing over memo
of the seal or when it was taken back later by him.
(14.5.1) PW-2 is ASI Ravinder Kumar and he is the
member of the raiding team/party and is a recovery witness.
He had deposed that on 26.10.2016, SI Jai Prakash had called
him and HC Om Prakash to his chamber at about 06:30 PM and
informed them about the secret information received by him.
Thereafter, IO formed the raiding party consisting of him, HC
Om Prakash, IO SI Jai Prakash himself and Ct. Rohit (driver) and
the IO also arranged for the official vehicle. The secret informer
also accompanied them and prior to departure, the entry vide DD
No. 25 was made by the IO. He also deposed about the IO asking
the passerby at Shanti Van Red Light, Raj Ghat Red Light and IP
Estate Bus Stand, however, none agreed to join and he did not
know what explanation was given by them to the IO for their
inability to join the investigation.
(14.5.2) PW-2 ASI Ravinder Kumar further deposed that
the IO directed the driver, Ct. Rohit to take the official vehicle
ahead near the Railway Bridge and they took positions near the
Digitally
signed by
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 16 of 72 ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:54:11
+0530
under bridge and at about 07:40 PM, accused Mohd. Dhobir
came from the Ring Road side and he was identified by the secret
informer from a distance of about 20 meters. The secret informer
then left and the accused stood there for 10 minutes, while
waiting for someone. Thereafter, the accused started going
towards the Ring Road and on the signal from the IO, the
accused was apprehended. The IO informed the accused about
the secret information and his legal rights of being searched in
presence of a Gazetted Officer or a Magistrate; and also, that he
could take the personal search of the officials and the vehicle,
prior to his search. However, the accused refused and the IO
served upon the accused the notice u/s 50 of the Act, Ex. P-1. The
accused informed the IO, that he was an illiterate and that the IO
can record his reply on the notice, on his behalf. The reply, Ex.
PW-2/B was noted down by the IO on the carbon copy of the
notice, Ex. PW-2/A. The said noting between points “X” to “X”
were explained to the accused and thereafter, he had put his
signature on the same.
(14.5.3) PW-2 ASI Ravinder Kumar further deposed that
the IO conducted the personal search of the accused and one
heavy transparent polythene was recovered from the front right-
side pocket of his wearing blue jeans. The mouth of the said
polythene was tied with a rubber band and upon opening it was
found containing matiyala colored powder. The said powder was
checked by the IO on the field-testing kit and it gave a positive
result for heroin. The polythene bag along with the substance
was measured on the weighing machine and it was found to be
170 grams. Thereafter, 02 samples of 05 grams each were drawnCNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 17 of 72
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:54:18
+0530
for sample purpose and same were kept in two different small
transparent pouches and their mouths were tied with rubber
bands. They were converted to cloth pullandas and marked as
Mark “A” and “B”, respectively. The remaining heroin was kept
in the same polythene in which it was recovered and its mouth
was also tied with a rubber band. It was converted into a cloth
pullanda and was marked as Mark “C”. All the three pullandas
were then sealed by the IO with the seal of “8C PS NB DELHI”.
The IO also filled up the FSL form and the 3 sealed pullandas
and the FSL form were seized by the IO vide Ex. PW-2/C
(emphasis supplied is mine).
(14.5.4) PW-2 ASI Ravinder Kumar further deposed that
the IO then prepared the rukka and handed over the same of HC
Om Prakash, along with the sealed pullandas, FSL Form and the
carbon copy of the seizure memo; to be taken to the PS for
handing over the tehrir to the DO for the registration of the
present case FIR and remaining things to the SHO, PS Crime
Branch. He also deposed about the main IO SI Sanjal Neolia
coming to the spot at about 03:40 AM on 27.10.2016 and SI Jai
Prakash handing over the custody of the accused and the
documents to the main IO. He also deposed regarding the arrest
memo, personal search memo and the disclosure statement of the
accused being prepared by IO SI Sanjay Neolia. He further
deposed about them leaving the spot at about 06:30 AM and
reaching the PS Crime Branch at about 07:10 AM. At about
08:05 AM, the IO produced the accused before Inspector
Vijender at Narcotics Cell, Crime Branch Kotwali.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.07.19
11:54:25 +0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 18 of 72
(14.5.5) PW-2 ASI Ravinder Kumar correctly identified the
case properties i.e., polythene containing contraband Mark “A”,
Ex. P-4; polythene containing contraband Mark “C”, Ex. P-2;
polythene containing contraband Mark “B”, Ex. P-3; and the
original notice u/s 50 of the NDPS Act, 1985, Ex. P-1. He also
correctly identified the accused person.
(14.5.6) PW-2 ASI Ravinder Kumar during his cross
examination conducted by the Ld. Defense Counsel had deposed
that he did not have any conversation with the secret informer on
that day, prior to leaving their office to the spot. He categorically
deposed that the IO had informed him about the source of the
contraband, from where the accused got it, after the accused was
apprehended, however, he had not stated so at the time of
recording of his statement u/s 161 Cr.P.C.,1973. He also
specifically deposed that name of the person to whom the
accused was supposed to deliver the said heroin was one Shamim
and the IO had informed him about the same, however, he had
not stated so at the time of recording of his statement u/s 161
Cr.P.C.,1973.
(14.5.6) PW-2 ASI Ravinder Kumar during his cross
examination conducted by the Ld. Defense Counsel had deposed
that it was wrong to suggest that there were jhuggies situated
near the place where the gypsy was parked. He also deposed that
he did not know as to whether there was any nursery or PWD
office situated nearby the spot or whether the IO called anyone
from the said nursery or PWD office, to join the investigation. He
although admitted that there was traffic police booth at the trafficDigitally
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 19 of 72 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:54:33
+0530
signal and the spot was around 100-150 meters from the said
signal. He did not pay any attention as to whether the traffic
police personnel were present on the said booth or not and also
whether the IO called the said personnel to join the investigation
or not.
(14.5.7) PW-2 ASI Ravinder Kumar during his cross
examination conducted by the Ld. Defense Counsel had deposed
that he did not know the size of the polythene bag, which the
accused was carrying. He also did not remember the size of the
polythene/thaili which was recovered from the accused, however,
he categorically denied the suggestion that a polythene
containing 170 grams of heroin cannot be put inside the pocket
of a jeans pant.
(14.6.1) PW-4 is ASI Om Prakash and he is the other
member of the raiding team/party and is also the recovery
witness. He had deposed that on 26.10.2016, SI Jai Prakash had
called him and HC Ravinder to his chamber at about 06:30 PM
and informed them about the secret information received by him.
Thereafter, IO formed the raiding party consisting of him, HC
Ravinder, IO SI Jai Prakash himself and Ct. Rohit (driver) and
the IO also arranged for the official vehicle. The secret informer
also accompanied. He also deposed about the IO asking the
passerby at Shanti Van Red Light, Raj Ghat Red Light and IP
Estate Bus Stand, however, none agreed to join and he did not
know what explanation was given by them to the IO for their
inability to join the investigation. Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:54:42 +0530CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 20 of 72
(14.6.2) PW-4 ASI Om Prakash further deposed that the IO
directed the driver Ct. Rohit to take the official vehicle ahead
near the Railway Bridge and they took positions near the under
bridge. At about 07:40 PM, accused Mohd. Dhobir came from
the Ring Road side and he was identified by the secret informer
from a distance of about 20 meters. The secret informer then left
and the accused stood there for 10 minutes, while waiting for
someone. Thereafter, the accused started going towards the Ring
Road and on receiving the signal from the IO, the accused was
apprehended. The IO informed the accused about the secret
information and his legal rights of being searched in presence of
a Gazetted Officer or a Magistrate; and also, that he could take
the personal search of the officials and the vehicle, prior to his
search. However, the accused refused and the IO served upon the
accused the notice u/s 50 of the Act, Ex. P-1. The accused
informed the IO, that he was an illiterate and that the IO can
record his reply on the notice, on his behalf. The reply, Ex. PW-
2/B was noted down by the IO on the carbon copy of the notice,
Ex. PW-2/A. The said noting between points “X” to “X” were
explained to the accused and thereafter, he had put his signature
on the same.
(14.6.3) PW-4 ASI Om Prakash further deposed that the IO
conducted the personal search of the accused and one heavy
transparent polythene was recovered from the front right-side
pocket of his wearing blue jeans. The mouth of the said
polythene was tied with a rubber band and upon opening it was
found containing matiyala (light brown) colored powder. The
said powder was checked by the IO on the field-testing kit and it
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 21 of 72 11:54:50
+0530
gave a positive result for heroin. The polythene bag along with
the substance was measured on the weighing machine and it was
found to be 170 grams. Thereafter, 02 samples of 05 grams each
were drawn for sample purpose and same were kept in two
different small transparent pouches and their mouths were tied
with rubber bands. They were converted to cloth pullandas and
marked as Mark “A” and “B”, respectively. The remaining
heroin was kept in the same polythene in which it was recovered
and its mouth was also tied with a rubber band. It was converted
into a cloth pullanda and was marked as Mark “C”. All the three
pullandas were then sealed by the IO with the seal of “8C PS NB
DELHI”. The IO also filled up the FSL form and the 3 sealed
pullandas and the FSL form were seized by the IO vide Ex. PW-
2/C (emphasis supplied is mine).
(14.6.4) PW-4 ASI Om Prakash further deposed that the IO
then prepared the rukka and handed over the same to him, along
with the sealed pullandas, FSL Form and the carbon copy of the
seizure memo; to be taken to the PS for handing over the tehrir to
the DO for the registration of the present case FIR and remaining
things to the SHO, PS Crime Branch. Thereafter, SHO called the
MHC(M) and had put his seal on the pullandas and the FSL
form, in his presence. Thereafter, the MHC(M) made the relevant
entries in the Register No. 19 and made the releavant DD Entry
in the compliance of Section 55 of the Act. Thereafter, the details
of the case were entered on the case properties, seizure memo
and FSL Form an, after making the inquiries from the DO. The
DO then handed over the original rukka and the copy of FIR to
him, for being handed over to IO SI Sanjay Neolia, to whom the
Digitally
signed by
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 22 of 72 ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:54:57
+0530
further investigation was being marked. He then proceeded to
Narcotice cell along with Ct. Rohit and handed over the same to
the IO,(14.6.5) PW-4 ASI Om Prakash correctly identified the
case properties i.e., polythene containing contraband Mark “A”,
Ex. P-4; polythene containing contraband Mark “C”, Ex. P-2;
polythene containing contraband Mark “B”, Ex. P-3; and the
original notice u/s 50 of the NDPS Act, 1985, Ex. P-1. He also
correctly identified the accused person.
(14.6.6) PW4 ASI Om Prakash during his cross
examination conducted by the Ld. Defense Counsel had deposed
that only SI Jai Prakash had spoken to the public persons, and no
one else from the raiding party including him spoke directly to
the public persons, requesting them to join the investigation. He
categorically deposed that there were no jhuggies near the spot
and there was no traffic police booth nearby. They were all in
civil clothes and the spot was within the jurisdiction of New
Delhi District. There was no Gazetted Officer available near the
spot. He did not remember the exact distance between the
members of the raiding party. He did not notice the accused
talking to anyone else on the phone prior to his apprehension.
After the notice u/s 50 of the Act was prepared and served by the
IO, the IO did not inform the accused about the availability of
nearest Gazetted Officer/Magistrate and that he had informed the
accused by the same. He could also not tell the size of the
polythene im which the accused was carrying the contraband.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 23 of 72 11:55:04
+0530
(14.7.1) PW-6 is ASI Dinesh Kumar and he had merely
produced the summoned record i.e., DD No. 24 dated
26.10.2016, Ex. PW-6/A; Report u/s 57 of the Act regarding the
seizure of 170 grams of heroin, Ex. PW-6/B, prepared by SI Jai
Prakash; Report u/s 57 of the Act regarding the arrest of the
accused Mohd. Dobhir, Ex. PW-6/C, prepared by SI Sanjay
Neolia; and the original diary containing the entry at serial no.
2642, 2652 and 2653, all dated 27.101.2016, Ex. PW-6/D (Colly.)
(14.8.1) PW-9 is ACP Virender Singh and he is the then
SHO, PS Crime Branch. He had deposed that during the
intervening night of 26.10.2016/27.10.2016, at about 12:25 AM,
HC Om Prakash came to his office and handed over the three
sealed pullandas with Mark “A”, “B” and “C”, respectively,
which were sealed with the seal of “8C PS NB DELHI”; one FSL
form containing the specimen seal; and carbon copy of the
seizure memo. He took the details from the DO and out the same
on the carbon copy of the seizure memo, all the three pullandas
and the FSL Form. He affixed his seal “VSS” on the sealed
pullandas and the FSL form and signed all of them.
(14.8.2) PW-9 ACP Virender Singh further deposed that he
then called the MHC(M) HC jag Narain to his office along with
the register no. 19. The said sealed pullandas and the FSL form
were deposited in the malkhan, after the MHC(M) made the
entries in the rgister no. 19 and he signed next to the said entry.
He made DD No. 3, Ex. PW-1/D in the roznamcha register at
01:30 AM. He also made entry Ex. PW-3/A and thereafter, his
statement was recorded by the IO.
ATUL
AHLAWAT
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 24 of 72 Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:55:12 +0530
(14.9.1) PW-10 is Retd. ACP Sanjeev Tyagi and he is the
then ACP, Narcotic Cell, Crime Branch. He deposed that on
16.10.2016, at about 06:00 PM, he received a phone call from
Inspector Vijender Singh, wherein he was informed that one-
person namely Mohd. Dhobir who was a resident of Nizamuddin,
Delhi was indulged in supplying of heroin and the said person
would be coming from the Ring Road side to Bhairon Marg to
supply the heroin to his contact between 07:30-08:00 PM.
Furthermore, they could be apprehended him the raid was
conducted. On receiving the said information, he immediately
directed Inspector Vijender Singh to conduct the raid
immediately and to take appropriate legal action.
(14.9.2) PW-10 is Retd. ACP Sanjeev Tyagi had further
deposed that on 27.10.2016, DD No. 24, Ex. PW-6/A made by SI
Jai Prakash and duly forwarded by Inspector Vijender was put up
before him and after perusing the same, he directed his SO to
keep it on the record. On the same day a Report u/s 57 of the Act
regarding the seizure of 170 grams of heroin, Ex. PW-6/B,
prepared by SI Jai Prakash was also put before him and after
perusing the same, he directed his SO to keep it on the record and
one Report u/s 57 of the Act regarding the arrest of the accused
Mohd. Dobhir, Ex. PW-6/C, prepared by SI Sanjay Neolia
Prakash was also put before him and after perusing the same, he
directed his SO to keep it on the record.
(14.10.1) PW-10 is Inspector Vijender and he is the then
Inspector, Narcotic Cell, Crime Branch. He had deposed that on
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 25 of 72 Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:55:19
+0530
26.10.2016, at about 05:45 PM, SI Jai Prakash informed him
about the secret information that one person namely Md. Dhobir
r/o Nizamuddin, Delhi was a supplier of Heroin and on that day
between 07:30-08:00 PM, he would be supplying huge quantity
of the said contraband to some person on the Bhairon Marg prior
to the Railway Bridge, while coming from the side of the Ring
Road and if the raid is conducted, the said persons could be
apprehended. SI Jai Prakash also produced the secret informer
before him and he interrogated him and satisfied himself. He then
informed ACP Sanjeev Kumar Tyagi telephonically and the latter
directed him to conduct the raid immediately and to take legal
action.
(14.10.2) PW-10 Inspector Vijender further deposed that on
26.10.2016, SI Jai Prakash produced before him the DD No. 24,
Ex.PW-6/A and he forwarded the same to the ACP concerned. He
instructed SI Jai Prakash to form a raiding party and to conduct
the said immediately, as per the instructions of the ACP
concerned. SI Jai Prakash left the PS along with other members
of the raiding team, after making the departure entry, DD No. 25,
Ex. PW-7/A. On 27.10.2016, accused Mohd. Dhobir was
produced before him and he interrogated the accused and
satisfied himself regarding the arrest and seizure of heroin. On
the same day a Report u/s 57 of the Act regarding the seizure of
170 grams of heroin, Ex. PW-6/B, prepared by SI Jai Prakash
was also put before him and after perusing the same, he
forwarded the same to ACP concerned. One Report u/s 57 of the
Act regarding the arrest of the accused Mohd. Dobhir, Ex. PW-
6/C, prepared by SI Sanjay Neolia Prakash was also put before
Digitally
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 26 of 72 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:55:26
+0530
him on that day and after perusing the same, he forwarded the
same to the ACP concerned.
(14.11.1) PW-12 is Inspector Sanjay Neolia and he is the 2nd
Investigating Officer of the present case. He had deposed that
during the intervening night of 26/27.10.2016, he was posted as
SI at Narcotic Cell, PS Crime Branch and as per the directions of
the senior officers, the investigation of the present case was
marked to him for further investigation. He left his office at
03:20 AM on 27.10.2016, after recording the departure entry DD
No. 3, Ex. PW-12/A in an official vehicle being driven by Ct.
Rohit and reached the spot i.e Bhairon Marg and on reaching
there, he met SI Jai Prakash and HC Ravinder. Accused was in
the custody of SI Jai Prakash and his custody was handed over to
him and the original seizure memo of the contraband along with
the carbon copy of notice u/s 50 of the Act was also handed over
to him. He then prepared the site plan, Ex. PW-12/D at the
instance of Si Jai Prakash.
(14.11.2) PW-12 Inspector Sanjay Neolia further deposed
that he made interrogation from the accused and arrested him
vide memo, Ex. PW-2/D and conducted his personal search vide
memo, Ex. PW-2/E. He also recorded the disclosure statement of
the accused, Ex. PW-2/F. He completed the investigation and left
the spot at around 06:30 Am and reached PS Crime Branch at
about 07:10 AM, where he recorded the statement of Inspector
Vijender Singh, SHO PS Crime Branch from 07:15-07:30 AM.
He then handed over the personal search articles of the accused
to the MHC(M) and recorded his statement. He left the PS for
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 27 of 72 AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:55:32 +0530
their office at about 08:05 AM and reached there at about 08:55
AM and produced the accused before Inspector Vijender, In-
charge Narcotics Cell, who also interrogated the accused and
satisfied himself regarding the arrest and recovery proceedings.
He had made the arrival entry at their office, Ex. PW-12/C. He
produced the accused before this Court and his one day PC
remand was taken. All best efforts for ascertaining the source of
the contraband was made, however the concerned person could
not be traced. He prepared his report u/s 57 of the Act on
27.10.2016 vide Ex. PW-12/D and same was put up before
Inspector Vijender, for forwarding the same to the ACP
concerned.
(14.11.3) PW-12 Inspector Sanjay Neolia further deposed
that on 28.10.2016, on his instructions the exhibit case property
was sent to FSL Rohini through Ct. Pawan vide RC No 380/21.
After depositing the same, the copy of the RC and the
acknowledgment receipt was handed over to him by Ct. Pawan.
On 04.12.2016, he obtained the FSL Result and same was
attached with the file. After completing the chargesheet, he filed
the same before this Court.
(14.11.4) PW-12 Inspector Sanjay Neolia correctly identified
the personal search articles of the accused, i.e., cash of Rs.
1,220/-, Ex. PW-12/1 and his DL, Ex. PW-12/2 and original
notice u/s 50 of the Act, Ex. P-1. He also correctly identified the
accused.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.07.19
11:55:39 +0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 28 of 72
Plea of the Accused:
15. After completion of the prosecution evidence, Prosecution
Evidence was closed. The statement of the accused was recorded
under Section 313 Cr.P.C., 1973 in which he had pleaded his
innocence. He had simpliciter denied all the incriminating
evidence that came up in the testimonies of the prosecution
witnesses. He had specifically denied the receipt of notice u/s 50
of the NDPS Act, 1985 and had also denied the recovery and
sampling proceedings being carried out in front of him. He also
stated that the Reports u/s 57 of the Act were manipulated and
fabricated later on, to falsely implicate him. He also denied the
contents of the FSL report calling it a mechanically created false
report, which was created at the behest of the police officials.
16. The accused chose not to lead any Defense Evidence and
same was closed accordingly.
17. I have heard the arguments advanced by Sh. K.D. Pachauri,
Ld. Additional PP for the State and Sh. S.A. Khan, Ld. Counsel
for the accused. I have also minutely gone through the evidence
brought on record and the other material aspects of the case.
Submissions made on behalf of the State:
18. It has been argued by the Ld. Addl. PP for the State that
through the clinching and unimpeachable testimony of the 1st IO
PW-7 SI Jai Prakash, who is also the complainant of the present
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 29 of 72 AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:55:46 +0530
case, the recovery and seizure proceedings were brought on
record and through the corroborating testimonies of the other
members of the raiding team consisting of PW-2 ASI Ravinder
Kumar and PW-4 ASI Om Prakash, the prosecution has proved
beyond reasonable doubt that on 26.10.2016 at about 7:50 PM,
upon receiving of the secret information and upon pointing out of
the secret informer, accused Mohd. Dhobir was apprehended and
from his right-side front packet of blue wearing jeans, 170 grams
of a matiyala colored powder substance was recovered from a
see-through transparent polythene/thaili. Upon checking with the
field testing kit, it came out to be positive for heroin.
19. It has been argued by the Ld. Addl. PP for the State that the
IO PW-7 SI Jai Prakash prepared two samples of 5 gm each
from the recovered contraband and the sample marked as Mark
“A” was sent to FSL Rohini for chemical analysis and vide the
FSL report, Ex. PW-5/A it was categorically proved by the
prosecution beyond reasonable doubt that the said sample
contained “Diacetylmorphine(heroine)”, “6-
Monoacetylmorphine”, “Phenobarbital”, “Trimethoprim”,
“Caffeine”, “Alprazolam” and “Acetaminophen”. The said seized
contraband was found to be a mixture of different narcotic drugs
and constituted a preparation, as defined u/s 2(xx) of the Act.
20. It has been argued by the Ld. Addl. PP for the State that
conscious possession of the contraband was duly established by
the prosecution beyond reasonable doubt through the testimonies
of PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-4
ASI Om Prakash. The rebuttable presumption of fact as
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 30 of 72 ATUL
AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:55:52 +0530
enshrined under section 54 read with section 35 were attracted in
the present case and the same could not be rebutted by the
accused throughout the trial.
21. Through the testimony of the prosecution witnesses
examined in the present case, the prosecution has been able to
discharge its burden that all the required compliances, including
the compliance of section 42, 50, 55 and 57 of the Act was
carried out in the present case. There was no objection taken by
the accused regarding the non-compliance of Section 52-A of the
Act, which itself is not a mandatory provision. It did not vitiate
the trial and since the recovery and sampling were duly proved
beyond reasonable doubt and it was merely an irregularity and
not an illegality, which would have nullified or vitiated the entire
case of the prosecution. There is sufficient material to establish
the search and seizure of the contraband in due compliance of the
mandatory provisions of the Act. The said non-compliance of
directory provision of Section 52-A qua the sampling being not
done before the Magistrate or certified by the magistrate, does
not go to the heart of the matter. Therefore, from the totality of
the facts and circumstances of the present case, the prosecution
has proved beyond reasonable doubt that the accused Mohd.
Dhobir had committed the offence punishable under section
21(b) of the NDPS Act,1985.
Submissions made on behalf of the Accused:
22. It is submitted by the Ld. Counsel for the accused that the
accused has been falsely implicated in the present case and no
Digitally signed
by ATUL
AHLAWAT
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 31 of 72 Date:
AHLAWAT 2025.07.19
11:56:02
+0530
recovery was effected from his possession. The entire story as put
forth before this Court has been concocted by the IO and all the
prosecution formal witnesses have deposed falsely at the behest
of the IO. The contraband was illegally planted upon the accused.
23. It is submitted by the Ld. Counsel for the accused that in the
present case there has been a material lapse on the part of the
prosecution and the falsity of the entire case is evidenced from
the fact that the alleged samples which were drawn at the spot
and allegedly sealed by the IO PW7 SI Jai Prakash and later on
allegedly sealed by the concerned SHO PW9 ACP Virender
Singh bears both the seals of the IO and the SHO PS Crime
Branch, however, the case properties which were produced
before this Court only had the seal of the IO and the seal of the
SHO i.e. ‘VSS’ was conspicuously absent. Therefore, raising
serious doubts as to whether it were the same samples/sealed
pullandas, which were allegedly sealed by the IO and the SHO,
or not.
24. It is submitted by the Ld. Counsel for the accused that the
three sealed pullandas were first produced during the
examination in chief PW2 ASI Ravinder Kumar conducted on
07.04.2018. When the MHCM had produced the case properties,
i.e. the pullanda having mark C, mark B and mark A respectively.
All the said cloth pullandas were only having the seal of ‘8C PS
NB DELHI’. The said parcels/pullandas were exhibited as Ex P2,
Ex P3 and Ex P4, respectively. The said case properties were also
shown to the other witnesses namely PW4 SI Om Prakash and
PW7 IO SI Jai Prakash and nowhere in their testimonies it had
Digitally
signed by
ATUL
ATUL AHLAWAT
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come that the said pullandas were bearing the seal of SHO, since
the description of the seal of SHO was not mentioned at the time
of the MHCM producing the said case properties. Therefore,
serious doubt has been created, as to whether the case properties
which was allegedly recovered from the possession of accused
were sent to the FSL and whether the same case properties were
produced before this Court or not. Therefore, the benefit of said
doubt must go to the accused.
25. It is submitted by Ld counsel for accused that as per the case
of prosecution, there were four members of the raiding party
namely PW7 SI Jai Prakash, PW2 ASI Ravinder Kumar, PW4
ASI Om Prakash and the driver of the police gypsy i.e. Ct Rohit.
It has come in the testimony of all the prosecution witnesses
especially other members of the raiding party that Ct Rohit had
accompanied them during the raid conducted by the police team,
however, the said police personnel was not made a prosecution
witness. The IO chose not to record his statement u/s 161 CrPC,
1973 and the necessary corroboration in the case of prosecution
could not be brought on record. The said lapse on the part of the
IO and the prosecution has also raised doubts upon the entire raid
being conducted in the present case and the benefit of the same
must go to the accused.
26. It is submitted by Ld counsel for accused that no independent
public witnesses were joined during the raid, search and seizure
proceedings and the same has casted a shadow of doubt upon the
veracity of the said proceedings. There are material
contradictions in the testimonies of the witnesses, with respect to
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the jhuggis being situated near the place from where the accused
was apprehended from. It has come in the cross examination of
the first IO PW7 SI Jai Prakash that there were jhuggis situated
near the spot and he had requested to the residents of said jhuggis
to join the investigation, however, none came forward. On the
other hand, when PW2 ASI Ravinder Kumar was cross
examined, he had categorically denied the suggestion that there
were jhuggis situated near the place where the accused was
apprehended from and the police gypsy driven by Ct Rohit was
parked. Therefore, yet another doubt upon the arrest and recovery
of the contra-band is created and the benefit of the same must
also go to the accused.
Relevant Law and Case Laws:
27. In the background of the above, before discussing the
evidence brought on record in the present case, it is pertinent to
point out that the accused person can be convicted on the basis of
credible evidence brought on record and the appreciation of the
said evidence must be done in correct and true perspective
manner and in the natural course of events, what would have
been occurred. Appreciation of evidence beyond reasonable
doubt does not mean that it should be assessed beyond any iota
of doubt. Beyond Reasonable Doubt means that the prosecution
is required to place evidence at a higher degree of preponderance
of probabilities compared to what is degree of preponderance of
probability in civil cases. The theory of Beyond Reasonable
Doubt means expecting higher degree of preponderance of
probabilities and the natural conduct of human beings, as held by
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the Hon’ble High Court of Karnataka in “State of Karnataka Vs
Venkatesh @ Venkappa & Anr“, Criminal Appeal No. 100492 of
2021, decided on 18.12.2023.
28. Section 3 of the Indian Evidence Act defines “evidence”.
The evidence can be broadly divided into oral and documentary.
“Evidence” under the Act can be said to include the means, factor
or material, lending a degree of probability through a logical
inference to the existence of a fact. It is an adjective law
highlighting and aiding the substantive law. Thus, it is neither
wholly procedural nor substantive, though trappings of both
could be felt. Reliance is placed upon the decision of the Hon’ble
Supreme Court of India in “Rajesh Yadav & Anr. Vs. State of
U.P”, Criminal Appeal No. 339-340 of 2014, date of decision
04.02.2022.
29. The definition of the word “proved” though gives an
impression of a mere interpretation, in effect, is the heart and
soul of the entire Act. This clause, consciously speaks of proving
a fact by considering the “matters before it”. The importance is
attached to the degree of probability in proving a fact through the
consideration of the matters before the court. What is required for
a court to decipher is the existence of a fact and its proof by a
degree of probability, through a logical inference.
30. Matters are necessary, concomitant material factors to prove
a fact. All “evidence” would be “matters” but not vice versa. In
other words, matters could be termed as a genus of which
evidence would be a species. Matters also adds strength to the
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evidence giving adequate ammunition in the Court’s sojourn in
deciphering the truth. Thus, the definition of “matters” is
exhaustive, and therefore, much wider than that of “evidence”.
However, there is a caveat, as the court is not supposed to
consider a matter which acquires the form of an evidence when it
is barred in law. Matters are required for a court to believe in the
existence of a fact.
31. Matters, do give more discretion and flexibility to the court
in deciding the existence of a fact. They also include all the
classification of evidence such as circumstantial evidence,
corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence, primary
evidence, real evidence, secondary evidence, substantive
evidence, testimonial evidence, etc.
32. In addition, they supplement the evidence in proving the
existence of a fact by enhancing the degree of probability. As an
exhaustive interpretation has to be given to the word “matter”,
and for that purpose, the definition of the expression of the words
“means and includes”, meant to be applied for evidence, has to
be imported to that of a “matter” as well. Thus, a matter might
include such of those which do not fall within the definition of
Section 3, in the absence of any express bar.
33. What is important for the court is the conclusion on the basis
of existence of a fact by analyzing the matters before it on the
degree of probability. The entire enactment is meant to facilitate
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the court to come to an appropriate conclusion in proving a fact.
There are two methods by which the court is expected to come to
such a decision. The court can come to a conclusion on the
existence of a fact by merely considering the matters before it, in
forming an opinion that it does exist. This belief of the court is
based upon the assessment of the matters before it. Alternatively,
the court can consider the said existence as probable from the
perspective of a prudent man who might act on the supposition
that it exists. The question as to the choice of the options is best
left to the court to decide. The said decision might impinge upon
the quality of the matters before it.
34. The word “Prudent” has not been defined under the Act.
When the court wants to consider the second part of the
definition clause instead of believing the existence of a fact by
itself, it is expected to take the role of a prudent man. Such a
prudent man has to be understood from the point of view of a
common man. Therefore, a judge has to transform into a prudent
man and assess the existence of a fact after considering the
matters through that lens instead of a judge. It is only after
undertaking the said exercise can he resume his role as a judge to
proceed further in the case.
35. The aforesaid provision also indicates that the court is
concerned with the existence of a fact both in issue and relevant,
as against a whole testimony. Thus, the concentration is on the
proof of a fact for which a witness is required. Therefore, a court
can appreciate and accept the testimony of a witness on a
particular issue while rejecting it on others since it focuses on an
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issue of fact to be proved. However, the evidence of a witness as
whole is a matter for the court to decide on the probability of
proving a fact which is inclusive of the credibility of the witness.
Whether an issue is concluded or not is also a court’s domaine.
36. While appreciating the evidence as aforesaid along with the
matters attached to it, evidence can be divided into three
categories broadly namely, (i) wholly reliable, (ii) wholly
unreliable and (iii) neither wholly reliable nor wholly unreliable.
If evidence, along with matters surrounding it, makes the court
believe it is wholly reliable qua an issue, it can decide its
existence on a degree of probability. Similar is the case where
evidence is not believable. When evidence produced is neither
wholly reliable nor wholly unreliable, it might require
corroboration, and in such a case, court can also take note of the
contradictions available in other matters. The aforesaid principle
of law has been enunciated in the authority of Hon’ble Supreme
Court of India in “Vadivelu Thevar v. State of Madras” , 1957
SCR 981 wherein it is held as under:
“In view of these considerations, we have no hesitation in
holding that the contention that in a murder case, the court
should insist upon plurality of witnesses, is much too
broadly stated. Section 134 of the Indian Evidence Act has
categorically laid it down that “no particular number of
witnesses shall in any case, be required for the proof of any
fact”. The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons,
that it shall not be necessary for proof or disproof of a fact
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to call any particular number of witnesses. In England, both
before and after the passing of the Indian Evidence Act,
1872, there have been a number of statutes as set out in
Sarkar’s Law of Evidence — 9th Edn., at pp. 1100 and 1101,
forbidding convictions on the testimony of a single witness.
The Indian Legislature has not insisted on laying down any
such exceptions to the general rule recognized in s.134
quoted above. The section enshrines the well-recognized
maxim that “Evidence has to be weighed and not counted”.
Our Legislature has given statutory recognition to the fact
that administration of justice may be hampered if a
particular number of witnesses were to be insisted upon. It
is not seldom that a crime has been committed in the
presence of only one witness, leaving aside those cases
which are not of uncommon occurrence, where
determination of guilt depends entirely on circumstantial
evidence. If the Legislature were to insist upon plurality of
witnesses, cases where the testimony of a single witness
only could be available in proof of the crime, would go
unpunished. It is here that the discretion of the presiding
judge comes into play. The matter thus must depend upon
the circumstances of each case and the quality of the
evidence of the single witness whose testimony has to be
either accepted or rejected. If such a testimony is found by
the court to be entirely reliable, there is no legal
impediment to the conviction of the accused person on such
proof. Even as the guilt of an accused person may be proved
by the testimony of a single witness, the innocence of an
accused person may be established on the testimony of a
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single witness, even though a considerable number of
witnesses may be forthcoming to testify to the truth of the
case for the prosecution. Hence, in our opinion, it is a
sound and well-established rule of law that the court is
concerned with the quality and not with the quantity of the
evidence necessary for proving or disproving a fact.
Generally speaking, oral testimony in this context may be
classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no
difficulty in coming to its conclusion either way — it may
convict or may acquit on the testimony of a single witness,
if it is found to be above reproach or suspicion of
interestedness, incompetence or subornation. In the
second category, the court, equally has no difficulty in
coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look
for corroboration in material particulars by reliable
testimony, direct or circumstantial. There is another
danger in insisting on plurality of witnesses. Irrespective
of the quality of the oral evidence of a single witness, if
courts were to insist on plurality of witnesses in proof of
any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where only
a single person is available to give evidence in support of
a disputed fact. The court naturally has to weigh carefully
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such a testimony and if it is satisfied that the evidence is
reliable and free from all taints which tend to render oral
testimony open to suspicion, it becomes its duty to act
upon such testimony. The law reports contain many
precedents where the court had to depend and act upon
the testimony of a single witness in support of the
prosecution. There are exceptions to this rule, for example,
in cases of sexual offences or of the testimony of an
approver; both these are cases in which the oral testimony
is, by its very nature, suspect, being that of a participator
in crime. But, where there are no such exceptional reasons
operating, it becomes the duty of the court to convict, if it
is satisfied that the testimony of a single witness is entirely
reliable. We have, therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only
reliable evidence in support of the prosecution.”
Appreciation of Evidence:
37. Section 8 of NDPS Act,1985 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
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from India or tranship any narcotic drug or
psychotropic substance, except for medical or
scientific purposes and in the manner and to the
extent provided by the provisions of this Act or the
rules or orders made thereunder and in a case
where any such provision, imposes any
requirement by way of licence, permit or
authorisation also in accordance with the terms
and conditions of such licence, permit or
authorisation:
Provided that, and subject to the other provisions
of this Act and the rules made thereunder, the
prohibition against the cultivation of the cannabis
plant for the production of Ganja or the
production, possession, use, consumption,
purchase, sale, transport, warehousing, import
inter-State and export inter-State of Ganja for any
purpose other than medical and scientific purpose
shall take effect only from the date which the
Central Government may, by notification in the
Official Gazette, specify in this behalf:
Provided further that nothing in this section shall
apply to the export of poppy straw for decorative
purposes.” (emphasis supplied is mine).
38. As per the aforementioned Section 8, possession of all
narcotic drugs is prohibited. The term “narcotic drugs” is defined
in Section 2(xiv) of the Act as under:
“(xiv) “narcotic drug” means coca leaf, cannabis
(hemp), opium, poppy straw and includes all
manufactured drugs;”
39. As per the definition, ‘narcotic drugs’ includes
manufactured drugs. Therefore, drug containing
diacetylmorphine, commonly known as heroin is included in the
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said definition and the possession of the same is prohibited by
Section 8 of NDPS Act,1985.
40. The prosecution would also be required to prove that the
quantity of the contraband recovered was of small, intermediate
or commercial quantity. The terms “small quantity” and
“commercial quantity” are defined in Section 2 (xxiiia) & 2
(viia), as under:
“Section 2 (xxiiia) “small quantity”, in relation to
narcotic drugs and psychotropic substances, means any
quantity lesser than the quantity specified by the Central
Government by notification in the Official Gazette;”
Section 2 (viia) “commercial quantity”, in relation to
narcotic drugs and psychotropic substances, means any
quantity greater than the quantity specified by the Central
Government by notification in the Official Gazette.”
41. The notification specifying small quantity & commercial
quantity vide SO 1055(E) dated 19.10.2001 mentions the small
quantity and commercial quantity for various Narcotic Drugs &
Psychotropic Substances, including ‘heroin’. As per the said
notification, the small quantity for heroin is “5 grams” and
commercial quantity is “250 grams”.
42. In order to prove the charges u/s. 21(b) of the NDPS Act,
1985, the prosecution is required to prove the following facts:
(1) That the accused was in possession of
contraband.
(2) That the possession was in contravention of
the provision of the Act or any rule on order
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made or condition of license granted
thereunder.
(3) That the contraband was a "preparation" as
defined u/s 2 (xx) of the Act. The said
preparation contained
diacetylmorphine/heroin, 6-
monoacetylmorphine, phenobarbital,
alprazolam, acetaminophen and certain other
substances.
(4) That the quantity of the contraband was more
than the small quantity, however, less than the
commercial quantity, for it to fall under
Section 21(b) of the Act.
43. Besides proving the aforesaid facts, the prosecution is also
required to prove that the investigating agency carried out the
investigation in compliance with the provisions of NDPS
Act,1985. The investigating agency must adhere strictly to the
legal procedure established during the search, ensuring
transparency and fairness in the investigation. By adhering to this
procedure, the agency demonstrates its commitment to protecting
personal liberty, a fundamental right of citizens. This ensures that
the search was conducted in a manner that upholds the principles
of the judicial system. The credibility of the evidence presented
by the prosecution is enhanced when the investigating agency
follows the statute scrupulously. The failure to adhere to the
procedure raises a doubt in the mind of the Court regarding the
manner in which the investigation is carried out, which obviously
favors the accused. Digitally
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44. In “State of Punjab vs. Balbir Singh“, (1994) 3 SCC 299,
the Hon’ble Apex Court considered the scheme of the Act as
under:
“4. The NDPS Act was enacted in the year 1985 with a view
to consolidate and amend the law relating to narcotic
drugs, to make stringent provisions for the control and
regulation of operations relating to narcotic drugs and
psychotropic substances, to provide for the forfeiture of
property derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement the
provisions of the International Conventions on Narcotic
Drugs and Psychotropic Substances and for matters
connected therewith. Sections 1 to 3 in Chapter I deal with
definitions and connected matters. The provisions in Chapter
II deal with the powers of the Central Government to take
measures for preventing and combating abuse of and illicit
traffic in narcotic drugs and to appoint authorities and
officers to exercise the powers under the Act. The provisions
in Chapter III deal with prohibition, control and regulation
of cultivation of coca plant, opium poppy etc. and to regulate
the possession, transport, purchase and consumption of
poppy straw etc. Chapter IV deals with various offences and
penalties for contravention in relation to opium poppy, coca
plant, narcotic drugs and psychotropic substances and
prescribes deterrent sentences. The provisions of Chapter V
deals with the procedure regarding the entry, arrest, search
and seizure. Chapter VA deals with forfeiture of property
derived from or used in illicit traffic of such drugs and
substances. The provisions of Chapter VI deals with
miscellaneous matters. We are mainly concerned with
Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section
41 certain classes of magistrates are competent to issue
warrants for the arrest of any person whom they have
reason to believe to have committed any offence punishable
under Chapter IV or for search of any building,
conveyance or place in which they have reason to believe
that any narcotic drug or psychotropic substance in respect
of which an offence punishable under Chapter IV has been
committed, is kept or concealed. Section 42 empowers
certain officers to enter, search, seize and arrest without
warrant or authorisation. Such officer should be superior
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in rank to a peon, sepoy or constable of the departments of
central excise, narcotics, customs, revenue, intelligence or
any other department of the Central Government or an
officer of similar superior rank of the revenue, drugs
control, excise, police or any other department of a State
Government as is empowered in this behalf by general or
special order of the State Government. Such officer, if he
has reason to believe from personal knowledge or
information taken down in writing, that any offence
punishable under Chapter IV has been committed, he may
enter into and search in the manner prescribed thereunder
between sunrise and sunset. He can detain and search any
person if he thinks proper and if he has reason to believe
such person to have committed an offence punishable
under Chapter IV. Under the proviso, such officer may also
enter and search a building or conveyance at any time
between sunset and sunrise also provided he has reason to
believe that search warrant or authorisation cannot be
obtained without affording opportunity for concealment of
the evidence or facility for the escape of an offender. But
before doing so, he must record the grounds of his belief
and send the same to his immediate official superior.
Section 43 empowers such officer as mentioned in Section
42 to seize in any public place or in transit, any narcotic
drug or psychotropic substance in respect of which he has
reason to believe that an offence punishable under Chapter
IV has been committed and shall also confiscate any
animal or conveyance along with such substance. Such
officer can also detain and search any person whom he has
reason to believe to have committed such offence and can
arrest him and any other person in his company. Section 44
merely lays down that provisions of Sections 41 to 43 shall
also apply in relation to offences regarding coca plant,
opium poppy or cannabis plant. Under Section 49, any
such officer authorised under Section 42, if he has reason
to suspect that any animal or conveyance is, or is about to
be, used for the transport of any narcotic drug or
psychotropic substance, can rummage and search the
conveyance or part thereof, examine and search any goods
in the conveyance or on the animal and he can stop the
animal or conveyance by using all lawful means and where
such means fail, the animal or the conveyance may be fired
upon. Then comes Section 50. …… This provision
obviously is introduced to avoid any harm to the innocent
persons and to avoid raising of allegation of planting or
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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 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.”
45. It is settled legal proposition that the procedure provided
under Chapter V of the NDPS Act, 1985 has to be scrupulously
followed for the Court to raise such presumption. For raising the
presumption u/s 54 of the Act, it must be first established that
recovery was made from the accused and the procedure provided
under the NDPS Act followed thoroughly without fail. It is
further settled law that for attracting the provision of Section 54
of NDPS Act, it is essential for the prosecution to establish the
element of possession of contraband by the accused beyond
Digitally
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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.
46. It was held by the Hon’ble Apex Court in “Gaunter
Edwin Kircher Vs The State of Goa” (1993) 3 SCC 145 that the
provisions of the NDPS Act, 1985 are very stringent, hence, the
extent of burden of proof that the prosecution has to meet is that
it has to prove the foundational facts beyond reasonable doubt
and the said burden is very onerous. More serious the offence,
stricter the degree of proof.
Receipt of Secret Information and proceedings u/s 42 of the
Act:
47. It has come in the testimony of PW-7 SI Jai Prakash that
on 26.10.2016, while he was present at his office situated at old
PS Kotwali, Daryaganj, at about 05:30 PM, a secret informer
came to his office and informed him that one person namely
Dhobir was a supplier of Heroin and on that day between 07:30-
08:00 PM, he would be supplying huge quantity of the said
contraband to some person on the Bahairon Marg, while coming
from the side of the Ring Road and if the raid is conducted, the
said person could be apprehended. At about 05:45 PM, he
informed his superior, PW-11 Inspector Vijender, after satisfying
himself with regard to the secret information. He also produced
the secret informer before PW-11 Inspector Vijender and the
latter also interrogated him and satisfied himself. PW-11
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Inspector Vijender then informed PW-10 ACP Sanjeev Kumar
Tyagi telephonically and the latter directed to conduct the raid
immediately. PW-7 SI Jai Prakash then recorded the DD No.24,
Ex.PW-6/A in roznamcha at 06:20 PM and copy of the same was
given to PW-11 Inspector Vijender for carrying out the
proceedings u/s 42 of the NDPS Act,1985.
48. It has come in the testimony of PW-11 Inspector Vijender
that PW-7 SI Jai Prakash produced before him the DD No. 24,
Ex.PW-6/A and he forwarded the same to the ACP concerned
PW-10 Retd. ACP Sanjeev Tyagi. He instructed PW-7 SI Jai
Prakash to form a raiding party and to conduct the raid
immediately, as per the instructions of the ACP concerned. PW-7
SI Jai Prakash left the PS along with other members of the
raiding team, after making the departure entry, DD No. 25, Ex.
PW-7/A.
49. The testimony of PW-7 SI Jai Prakash and PW-11
Inspector Vijender qua the receipt of the secret information and
the constitution of the raiding team was dully corroborated
through the testimonies of the other members of the raiding team,
i.e., PW-2 ASI Ravinder Kumar and PW-4 ASI Om Prakash.
50. The said fact regarding the receipt of the secret
information and the authorization given for carrying appropriate
legal action by immediately constituting the raiding team was
also fully corroborated from the testimony of PW-10 Retd. ACP
Sanjeev Tyagi.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:57:59 +0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 49 of 72
51. The secret information was recorded by the officer, i.e PW-
7 SI Jai Prakash, to whom the secret informer had given the said
information at the first place. The DD entry No. 24, Ex. PW-6/A
was recorded in the compliance of Section 42 of the Act.
Furthermore, PW-10 Retd. ACP Sanjeev Tyagi was the concerned
ACP of the Narcotic Cell of Crime Branch and he was the
Gazetted Officer in Delhi Police. PW-10 was authorized by the
notification dated 14.11.1985, to authorize any officer
subordinate to him, but superior in rank to a Peon, Sepoy or a
Constable to take action u/s 42 of the Act. The said notification is
reproduced below:
“FINANCE (GENERAL) DEPARTMENT
NOTIFICATIONS
Delhi, the 14th November, 1985No. 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 conveyance or places :
1. Revenue Department.
2. Drugs Control Department
3. Excise Department, and
4. Police Department.”
52. It has duly come in the testimony of PW-7 SI Jai Prakash,
PW-11 Inspector Vijender and PW-10 Retd. ACP Sanjeev Tyagi
regarding the authorization to conduct the raid immediately after
constituting the raiding team. The DD No. 25 dated 26.10.2016
was recorded at 06:40 PM by PW-7 SI Jai Prakash, wherein it
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Date: 2025.07.19
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was recorded that upon the directions of PW-11 Insepctor
Vijender, PW-7 SI Jai Prakash had called PW-2 ASI Ravinder
Kumar and PW-4 ASI Om Prakash to his chamber and briefed
them about the secret information and the constitution of the
raiding party. The raiding team along with the secret informer
and the driver Ct. Rohit left their office in the official police
vehicle. Therefore, there has been substantial compliance of
section 42 of the Act in the present case.
Possession and Recovery of Contraband:
53. Through the testimony of the In-Charge of the Raiding
Party, 1st IO PW-7 SI Jai Prakash, the prosecution has duly
brought on record that they went to Bhairon Marg via Raj Ghat,
ITO Flyover and Ring Road. They parked their vehicle prior to
the Railway Bridge at Bhairon Marg at about 07:15 PM. On their
way, he had requested 6 passersby at Shantivan Red Light; 6
passersby in front of Raj Ghat; and 5 passengers at IP Estate Bus
Stop to join the investigation, after briefing them about the secret
information, however, they all left without disclosing their names
and other particulars. The said fact was duly corroborated from
the testimonies of PW-2 ASI Ravinder Kumar and PW-4 ASI Om
Prakash.
54. PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-
4 ASI Om Prakash had categorically deposed that PW-7 SI Jai
Prakash instructed the driver Ct. Rohit to remain inside the
vehicle and thereafter, he briefed the members of the raiding
team and took their positions and waited for the accused. At
about 07:40 PM, accused Mohd. Dhobir came from the T-Point
Digitally
signed by
ATUL
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AHLAWAT Date:
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of the Ring Road and he was going towards Bhairon Mandir. At
that time, the accused was wearing blue colored jeans and
maroon colored T-Shirt. While being at a distance of 20 meters,
the secret informer pointed towards the accused as the supplier of
heroin. After identification, the secret informer left towards
Bhairon Mandir.
55. PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-
4 ASI Om Prakash further deposed that they stayed at their
respective positions, while the accused started waiting for
someone. After about 10 minutes, the accused started going
towards the Ring Road and with the help of the members of the
raiding party, they apprehended the accused at about 07:50 PM.
Upon interrogation, the accused disclosed his name as Mohd.
Dhobir. PW-7 SI Jai Prakash introduced himself and other
members of the raiding party to the accused and also requested 5-
6 passerby to join the investigation, however, they all left the spot
without disclosing their names and addresses while citing their
genuine difficulties. PW-7 SI Jai Prakash then informed the
accused of the possibility of recovery of contraband from his
possession and for that reason the personal search of the accused
was required to be conducted. PW-7 SI Jai Prakash duly
informed the accused of his legal rights and that he could be
searched in the presence of a Gazetted Officer or a Magistrate,
after explaining him the meaning and purport of the said officers.
PW-7 SI Jai Prakash also informed him that the said officers
could be called on the spot, if the accused so desired. PW-7 SI Jai
Prakash also offered the accused to take the personal search of
the police party or the official vehicle.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 52 of 72 2025.07.19
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56. PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-
4 ASI Om Prakash had specifically deposed that PW-7 SI Jai
Prakash was told by the accused that the accused was an
illiterate, however, he knew how to sign in English language.
PW-7 SI Jai Prakash thereafter, prepared the notice u/s 50 of the
NDPS Act, Ex. P-1 and the carbon copy of the same, Ex. PW-2/A
was served upon the accused. As per the clinching testimonies of
PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-4 ASI
Om Prakash, the accused declined the option to be searched in
the presence of the Gazetted Officer or a Magistrate and also
refused to take search of the police officals and the official
vehicle. The refusal was recorded on the carbon copy, Ex. PW-
2/A from point “X” to “X” and was exhibited as Ex. PW-2/B
PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-4 ASI
Om Prakash categorically deposed that whatever was stated by
the accused, was recorded by PW-7 SI Jai Prakash as the accused
was an illiterate and later it was signed by the accused at point
“B”. They had all categorically deposed that prior to taking the
signature of the accused, the contents of the reply were duly read
over and explained to the accused by PW-7 SI Jai Prakash.
Therefore, the prosecution has been able to discharge its burden
qua the sufficient compliance of section 50 of the Act.
57. PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-
4 ASI Om Prakash had categorically deposed PW-7 SI Jai
Prakash took the search of the accused and one transparent
polythene was recovered from the right-side front pocket of his
wearing blue jeans. The mouth of the said polythene was tied
with a rubber band and upon opening it was found containing
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 53 of 72 AHLAWAT
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AHLAWAT
Date: 2025.07.19
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matiyala colored powder. The said powder was checked on the
field-testing kit and it gave a positive result for heroin. The
polythene bag along with the substance was measured on the
weighing machine and it was found to be 170 grams. Thereafter,
02 samples of 05 grams each were drawn for sample purpose and
same were kept in two different small transparent pouches and
their mouths were tied with rubber bands. They were converted
to cloth pullandas and marked as Mark “A” and “B”,
respectively. The remaining heroin was kept in the same
polythene in which it was recovered and its mouth was also tied
with a rubber band. It was converted into a cloth pullanda and
was marked as Mark “C”. (emphasis supplied is mine).
58. PW-7 SI Jai Prakash, PW-2 ASI Ravinder Kumar and PW-
4 ASI Om Prakash had categorically deposed PW-7 SI Jai
Prakash filled the FSL Form and all the three pullandas were
sealed with the seal of “8 CPS NB DELHI” and the same seal
was also put on the FSL form. Thereafter, he took them in his
possession vide seizure memo, Ex. PW-2/C. They also
categorically deposed regarding PW-7 SI Jai Praksh sending the
sealed pullandas with the FSL form and the carbon copy of the
seizure memo to the PS with PW-4 SI Om Prakash along with the
rukka, for registration of the FIR and for carrying out the
proceedings u/s 55 of the Act.
59. It was specifically brought from the testimonies of PW-9
ACP Virender Singh, PW-4 ASI Om Prakash and PW-3 ASI
Jagnarain that during the intervening night of
26.10.2016/27.10.2016, at about 12:25 AM, PW-1 ASI Om
ATUL
AHLAWAT
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Digitally signed by
ATUL AHLAWAT
Date: 2025.07.19
11:58:33 +0530
Prakash came to the office of PW-9 ACP Virender Singh and
handed over the three sealed pullandas with Mark “A”, “B” and
“C”, respectively, which were sealed with the seal of “8C PS NB
DELHI”; one FSL form containing the specimen seal; and carbon
copy of the seizure memo. PW-9 ACP Virender Singh took the
details from the DO/PW-1 HC Sudhir and filled out the same on
the carbon copy of the seizure memo, all the three pullandas and
the FSL Form. He affixed his seal “VSS” on the sealed pullandas
and the FSL form and signed all of them. Thereafter, PW-9 ACP
Virender Singh called the MHC(M) PW-3 ASI Jag Narain to his
office along with the register no. 19. The said sealed pullandas
and the FSL form were deposited in the malkhana, after the
MHC(M) made the entries in the register no. 19 and he signed
next to the said entry. PW-9 ACP Virender Singh made DD No.
3, Ex. PW-1/D in the roznamcha register at 01:30 AM on
27.10.2016. Therefore, the prosecution has been able to discharge
its burden qua the sufficient compliance of section 55 of the Act.
60. The Statutory Notices u/s 57 of the Act, i.e Ex. PW-6/B
and Ex. PW-6/C, qua the recovery of the contraband and the
arrest of accused Mohd. Dhobir has been duly proved by the
prosecution through the testimonies of PW-7 SI Jai Prakash, PW-
12 Inspector Sanjay Neolia, PW-11 Inspector Vijender, PW-6 ASI
Dinesh Kumar and PW-10 Retd. ACP Sanjeev Tyagi.
Non Joining of Public Witnesses:
61. As per the arguments advanced by Ld. defence counsel,
the non joining of public witnesses during the arrest and recovery
proceedings had vitiated the entire process and no reliance must
Digitally
signed by
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 55 of 72 ATUL AHLAWAT
AHLAWAT Date:
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be placed upon the said recovery, which is allegedly witnessed by
only the members of police party. Since the possibility of false
implication and padding up of evidence cannot be ruled out. In
the said circumstances, the benefit of doubt must go to the
accused and he may not be convicted for the offence under which
he has been charged with.
62. It has categorically come in the testimony of the incharge
of the raiding party, PW7 SI Jai Prakash that after constitution of
the raiding party, upon the directions received from his superior
officers, he along with PW2 and PW4 left their office for the
spot. On their way, they stopped at Shantivan red light, Rajghat
and proceeded to Bhairon marg via ITO flyover and the ring
road. He had specifically requested 06 passersby at Shantivan red
light, then 06 other passersby in front of Rajghat and finally 05
passengers waiting at the IP Estate bus stop to join the
investigation, after he had briefed him about the facts of secret
information received by him, however, none of the said public
persons agreed to join the investigation and left without
disclosing their names and addresses.
63. During his cross examination, PW7 SI Jai Prakash had
further deposed that although he had requested the persons
residing in the jhuggis, to join the investigation, however, even
the residents of said jhuggis did not come forward. Although he
had taken all the steps to ensure the joining of independent
witnesses, however, he had not served any notice to the said
persons.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:58:46 +0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 56 of 72
64. The testimony of incharge of PW7 SI Jai Prakash was
corroborated in all material particulars by the testimony of PW2
ASI Ravinder Kumar and PW4 ASI Om Prakash, since, they had
both categorically deposed that the IO PW4 SI Jai Prakash had
requested the independent persons to join the investigation at
different places such as Shantivan red light, Rajghat red light and
IP Estate bus stop.
65. There is no material contradiction between the inter-se
testimonies of PW7 and PW2 with respect to the existence of
jhuggis near the place of arrest, since the suggestion being asked
to PW2 was whether there were jhuggis situated near the place
where the police gypsy was parked. The mere suggestion and its
negation by the witness does not establish any contradiction from
the testimony of other witnesses.
66. Once it has come on record that public witness could not
be joined despite efforts having been made, then non joining of
independent witness is not fatal to the prosecution case. In this
regard, this Court finds the support of the decision of the Hon’ble
Apex Court in “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 isCNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 57 of 72
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signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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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.”
67. 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 Appeal no. 1690-1691 of 2012 decided on
19.10.12, it was held by the Hon’ble Apex Court that:-
“In a case of this nature, it is better if prosecution
examines at least one independent witness to
corroborate its case. However, in the absence of any
animosity between the accused and official
witnesses, there is nothing wrong in relying upon
their testimonies and accepting the documents
placed for basing conviction. After taking into
account the entire material relied upon by the
prosecution, there is no animosity established on the
part of the official witnesses by the accused in
defence and we also did not find any infirmity in the
prosecution case.”
68. Furthermore, the police officials are considered to be
equally competent and reliable witnesses and their testimony can
ATUL
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Digitally signed by
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Date: 2025.07.19
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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”.
69. Further, it is also not uncommon that these days people are
generally reluctant to become part of investigation. In this regard,
the Hon’ble Delhi High Court in the case of “Bheru Lal vs
State”, Cr. Appeal No. 572/2014 date of decision 21.12.2016
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 v. 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, 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.”
ATUL
AHLAWAT
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Videography and Photography not done during the
proceedings:
70. It was also submitted that the proceedings were not video-
graphed or photographed, which raises a doubt as to whether the
proceedings took place or not in the manner as pointed out by the
prosecution.
71. It is true that there is no videography or photography of the
recovery proceedings, which were conducted in the year 2016.
72. The question before the court is whether the deposition of
recovery witnesses, who have corroborated each other in material
particulars, can be overlooked or disbelieved, merely because
they did not take photographs or video at the time of search and
seizure. It was held by the Hon’ble Delhi High Court in “Rohan
Malik Vs State NCT of Delhi”, Bail App. No.4303/2024
dtd.13.1.2025 and “Seema Vs State NCT of Delhi” Bail App
No. 3391/2024 dtd 17.1.2025, that although it is preferable that
videography or photography be conducted during the course of
investigation, however, it is not a sine qua non in a case of
recovery of contraband under the NDPS Act. The said judgments
were passed in bail applications, where the accused persons were
arrested in NDPS case. Thus, the Hon’ble court at that stage
considered the importance of videography and photography of
the search and seizure proceedings, as the availability of the same
at that stage of proceedings, would have fortified the case of the
prosecution and may have raised the rigors under section 37
NDPS Act to a higher pedestal. The said judgments were not in
cases where the recovery witnesses had been examined and the
Digitally
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 60 of 72 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
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recovery was duly proved by them through deposition before the
court.
73. 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.
Non Complaince of Section 52-A of the Act:
74. It is not disputed that IO never made any efforts to move
an application before the Ld. Magistrate u/s 52-A of the Act. The
case property was not produced before the Ld. Magistrate and the
sampling process was neither carried out there, nor the sampling
done earlier was certified by the Ld. Magistrate.
75. Section 52-A of the Act was inserted vide an amendment
on 29.05.1989 with the intention of laying a procedure for
effective management of the seized contraband substances. In
this endeavor, S.O. no. 1 of 88 dated 15.03.1988; S.O. no.2 of 88
dated 11.04.1988; S.O. no. 1 of 89 dated 13.06.1989 and the
notifications dated 10.05.2007 and 16.10.2015, were issued.
These standing orders were later repealed after the NDPS
(Seizure, Storage, Sampling and Disposal) Rules, 2022 came into
force. The said 2002 rules have now consolidated the entire
framework and procedure to be followed.
76. The scope of Section 52-A of the Act was extended to
serve the broader purpose of strengthening the evidentiary
framework under the Act and to enhance the credibility and
reliability of evidence presented during trial. However, the
Digitally
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breach or deviation in the procedure does not render the process
carried out to be illegal and it is to be treated as mere irregularity.
The non compliance of Section 52-A cannot be the ground to
acquit the accused, if there is sufficient material to establish the
search and seizure of the contraband. Reliance is placed upon the
decision of the Hon’ble Apex Court in “NCB Vs Kashif”,2024
SCC OnLine SC 3848.
77. In “Khet Singh Vs UOI” (2002) 4 SCC 380, the Hon’ble
Supreme Court had held that in certain circumstances, the
investigating agency may not be able to follow the guidelines to
the letter, and due to such procedural irregularity, the other
evidence collected will not become inadmissible and the Trial
Court has to consider all the circumstances and find out whether
any serious prejudice is caused to the accused or not. Reliance is
also place upon “State of Punjab Vs Makhan Chand“, (2004) 3
SCC 453.
78. The non compliance of section 52-A may be fatal to the
case of the prosecution, only if it goes to the root of the matter.
Section 52-A is only a procedural provision and does not lay
down the evidentiary rules for proving seizure or recovery, nor
does it dictate in the manner in which the evidence is to be led
during the trial. It is the general rules of evidence, as enshrined in
the Indian Evidence Act, 1872 that governs how the seizure and
recovery may be proved.
79. Section 52-A (4) created a deeming fiction wherein it
creates a new form of primary evidence. However, it does not
imply that the other evidence is original is excluded as primary
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evidence. In absence of compliance of the section 52-A of the
Act, the Court cannot simply overlook other cogent evidence in
the form of seized substance itself and the testimonies of the
witnesses examined. Reliance is placed upon the decision of
Hon’ble Apex Court in “Bharat Aambale Vs. The State of
Chhattisgarh”, Criminal Appeal No. 250/2025 dated
06.01.2025, Neutral Citation, 2025 INSC 78.
80. As far as the burden of proof of non-compliance of the said
provision, mere assertion of the accused that there has been non-
compliance is not sufficient. The initial burden will always be on
the accused to show the non-compliance and only when he is
able to discharge it by proving it on preponderance of
probabilities, then only the onus shall shift to the prosecution to
prove beyond reasonable doubt through cogent evidence that
such non-compliance did not affect the case of the accused.
81. As far as the grounds taken by the Ld. defence counsel at
the time of addressing final arguments regarding identity of the
case property is concerned, it is important to reproduced the
relevant portion of the examination in chief of the incharge of the
raiding party and the first IO/PW7 Retd SI Jai Prakash.
“Case Property i.e. polythene containing
contraband mark C, polythene containing
contraband mark B, polythene containing
contraband mark A are already ExP2, P3 and P4
respectively. The original notice u/s 50 NDPS Act is
already Ex P1 in the testimony of PW4″.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.19
11:59:41 +0530
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 63 of 72
Ld. defence counsel has no objection in
exhibition of the case property."
Since the Ld. defence counsel had not
objected to the exhibition of the case properties at the time
of the testimony of the witness, who had recovered the
contraband, after the same was seized from the possession
of accused and there being no suggestion given to the said
witness or to any other witness who had taken part in the
search, recovery and seizure proceedings, that the said case
property was not the one, which was seized during the
investigation raises doubts upon the veracity of the defence
taken by the accused person at the time of addressing final
arguments.
82. From the relevant entries made in register no. 19 and 21,
Ex PW3/A and ExPW3/C, it clearly reflects that the cloth parcels
containing heroin marked as mark A was sealed with the seal of
“8C PS NB DELHI” and “VSS”. The presence of the said seals
on the exhibits is also clearly mentioned in the FSL report Ex
PW5/K. The said fact was also duly deposed by the Sr. Scientific
officer (Chemistry), FSL, Rohini namely Sh M L Meena, who
has examined before this Court as PW5. After the examination,
the exhibit was sealed with seal of ‘MLM FSL DELHI’. It was
the said sealed pullanda bearing the seal of the FSL, which was
first produced before this Court during the testimony of PW2 ASI
Ravinder Kumar and the said pullanda marked as mark A was
opened before the Ld. Predecessor of this Court and it was found
containing one cut cloth pullanda having the particulars of the
case and also the mark A. The said cut cloth pullanda was having
Digitally
signed by
ATUL
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the name and signature of the members of raiding party namely
PW2, PW4 and PW7 in addition to the name and signature of the
accused. The said sample which was contained in the pullanda
mark A was examined by the FSL and its result came out to be
positive for manufactured drugs defined under the NDPS Act and
the said pullanda and its contents were exhibited as Ex P4. The
source pullanda Ex. P2 and second sample Ex. P3 were also
produced before the Ld. Predecessor of this Court and at the time
of cross examination of PW2, no objection regarding the identity
of the said pullandas and its contents were raised by the accused,
therefore, in the considered opinion of this Court, the defence
taken by accused is nothing but an after thought and same does
not stand established.
The driver of the police gypsy not being made a prosecution
witness:
83. As per the arguments advanced by the Ld. defence
counsel, the prosecution could not bring sufficient corroboration
to the process of search, seizure and recovery of the contra-band
from the possession of accused, since, one of the members of
raiding party namely Ct Rohit, who was the driver of the police
gypsy was not examined as a prosecution witness. Therefore, as
per the accused, the prosecution story and its veracity had taken a
hit.
84. When the incharge of the raiding party, first IO PW7 SI Jai
Prakash entered into the witness box, he had categorically
deposed that on the directions of Inspector Vijender, he had
called HC Om Prakash and HC Ravinder to his office and briefed
Digitally
signed by
ATUL
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them about the secret information received by him. Thereafter, he
prepared the raiding party consisting of himself, HC Om Prakash
and HC Ravinder. He further categorically deposed that after the
raiding team was constituted, they along with the secret
information left the office in govt vehicle i.e. a gypsy bearing
registration no. DL-1CM-1344, which was being driven by Ct
Rohit. The said fact was also recorded in the departure entry DD
no. 25, PW7/A. Therefore, the raiding team was taken to the spot
by the driver of the official vehicle and as per the version of the
first IO, the said driver namely Ct Rohit was not himself a
member of the raiding team and he was never briefed about the
secret information and about the impending raid to be conducted.
Therefore, the question of the said driver becoming the part of
raiding team does not arise.
85. Merely because it has come in the testimony of PW2 ASI
Ravinder Kumar that the raiding party constituted by IO SI Jai
Prakash consisted of four persons including the driver Ct Rohit is
not a material contradiction. PW4 ASI Om Prakash had merely
deposed that on receiving the secret information, SI Jai Prakash
took them i.e. himself, HC Ravinder and Ct Rohit in a govt
vehicle being driven by Ct Rohit and they proceeded towards the
place of secret information, does not make Ct Rohit a member of
raiding party. It was not required for the prosecution to
corroborate the events which took place during the raid
conducted in the present case through the statement and
testimony of each and every person who could have been made a
witness, since through the testimony of PW7 and the
corroborating testimonies of PW2 and PW4, the burden cast
Digitally
signed by
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 66 of 72 ATUL
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upon the prosecution was duly discharged beyond reasonable
doubt.
86. Established jurisprudence dictates that, once possession is
demonstrated, the burden of proof shifts to the individual
asserting a lack of conscious possession or awareness of
concealment. Section 35 of the Act codifies this principle through
a statutory presumption in law. Similarly, Section 54 permits a
presumption arising from the possession of illicit items. It is
incumbent upon the accused to substantiate his claim of either
unawareness or absence of conscious possession of contraband.
Hon’ble Apex Court in “Mohan Lal Vs. State of Rajasthan“
(2015) 6 SCC 222 dealt with this aspect in detail and held as
under:
“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.
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 67 of 72 ATUL
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by ATUL
AHLAWAT
Date: 2025.07.19
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(2) For the purpose of this section, a fact is
said to be proved only when the Court
believes it to exist beyond a reasonable doubt
and not merely when its existence is
established by a preponderance of probability.
On a perusal of the aforesaid provision, it is
plain as day that it includes knowledge of a
fact. That apart, Section 35 raises a
presumption as to knowledge and culpable
mental state from the possession of illicit
articles. The expression “possess or
possessed” is often used in connection with
statutory offences of being in possession of
prohibited drugs and contraband substances.
Conscious or mental state of possession is
necessary and that is the reason for enacting
Section 35 of the NDPS Act.
XXXXX
16. From the aforesaid exposition of law it is
quite vivid that the term “possession” for the
purpose of Section 18 of the NDPS Act could
mean physical possession with animus,
custody or dominion over the prohibited
substance with animus or even exercise of
dominion and control as a result of
concealment. The animus and the mental
intent which is the primary and significant
element to show and establish possession.
Further, personal knowledge as to the
existence of the “chattel” i.e. the illegal
substance at a particular location or site, at a
relevant time and the intention based upon the
knowledge, would constitute the unique
relationship and manifest possession. In such
a situation, presence and existence of
possession could be justified, for the intention
is to exercise right over the substance or the
chattel and to act as the owner to the
exclusion of others. In the case at hand, the
Appellant, we hold, had the requisite degree of
control when, even if the said narcotic
Digitally
signed by
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 68 of 72 ATUL
ATUL AHLAWAT
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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 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.”
87. In “Noor Aga v. State of Punjab and Anr.” (2008) 16 SCC
417, the Hon’ble Supreme Court noted Section 35 of the NDPS
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 69 of 72 AHLAWAT
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AHLAWAT
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Act,1985 which provides for presumption of culpable mental
state and further noted that it also provides that the accused may
prove that he had no such mental state with respect to the act
charged as an offence under the prosecution. The Court also
referred to Section 54 of the NDPS Act,1985 which places the
burden to prove on the accused as regards possession of the
contraband articles on account of the same satisfactorily.
88. Furthermore, the Hon’ble Supreme Court, in “Sardul
Singh Vs. State of Haryana” (2002) 8 SCC 372, discussed the
approach the court should take when analyzing the evidence, as
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
Digitally
signed by
ATUL
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reasonable probabilities of the case also in
their attempt to find out proof beyond
reasonable doubt.”
89. Upon careful review of the evidence brought on record by
the prosecution, despite some lapses, gaps, and discrepancies, the
prosecution has proven the foundational facts against the accused
beyond reasonable doubt. The presumption under sections 35 and
54 of the NDPS Act is applicable in this case against the accused,
as the recovery of contraband has been established beyond
reasonable doubt. The accused failed to rebut this presumption,
leading to the conclusion that he was knowingly and deliberately
in possession of an intermediate quantity of heroin. According to
the presumption under section 54 of the NDPS Act, since the
accused was found in possession of an intermediate quantity of
heroin, he has committed an offense punishable under section
21(b) of the NDPS Act, 1985.
Conclusion and Findings:
90. When the entire evidence of the present case is cumulatively
read and appreciated in the background of the settled principles
of the law and in the light of the evidence adduced by the
prosecution, this Court is of the view that in the facts of the
present case, the prosecution was able to prove all the material
links of the chain of circumstantial evidence and the said chain
pointed towards the guilt of accused Mohd. Dhobir and no other
hypothesis inconsistent with his guilt could be brought on record
and the defense taken by the accused person that he was not party
to the offence in question is not believable in the light of the
ATUL
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 71 of 72 AHLAWAT
Digitally signed
by ATUL
AHLAWAT
Date: 2025.07.19
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testimony of the prosecution witnesses examined before this
Court. The statutory presumptions raised u/s 35 and 54 of the Act
stood unrebutted in the present case.
91. In view of the aforesaid, the accused Mohd. Dhobir S/o
Mohd. Dulal is hereby held guilty and convicted for
committing the offence punishable under section 21(b) of the
NDPS Act, 1985.
92. The case properties be disposed off/destroyed as per the
law and rules applicable.
93. To be now heard on the point of sentence.
Announced in the open court on 19.07.2025.
This judgment consists of 72 pages and all
of them have been digitally signed by me.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date: 2025.07.19
12:00:47 +0530
(ATUL AHLAWAT)
ASJ/SPECIAL JUDGE (NDPS)/
PHC/NEW DELHI/19.07.2025
CNR No DLND01-016542-2016 State Vs Mohd. Dhobir FIR No. 182/2016 page no. 72 of 72
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