Delhi District Court
State vs Emmanuel @ Emeka on 8 August, 2025
DLSH010068362019 Page 1 of 60 SC 499/2019 STATE Vs. EMMANUEL @ EMEKA FIR No. 38/2019 (A.V.R.S.) U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No. 499/2019 STATE Vs. EMMANUEL @ EMEKA FIR No. 38/2019 (A.V.R.S.) U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act In the matter of :- State ...(through Ld. Addl. PP) Vs. Emmanuel @ Emeka S/o Sh. Oluchukwu (@ Mike (S/o Sh. Obinjekwe) @ Obileku Chukwuebuka) R/o H.No. 8 Lagos, Akionode Street, Nigeria. ....accused (Sh. Mohsin Khan, Advocate for accused) Date of institution : 15.10.2019 Date when Judgment reserved : 31.07.2025 Date of Judgment : 08.08.2025 JUDGMENT
CASE OF THE PROSECUTION
1. Brief facts of the present case are that on 21.08.2019 HC Lalit
Kumar posted at P.S. Anand Vihar Railway Station (A.V.R.S.) was on
patrolling duty. At around 8:00 am when he was near reservation hall a taxi
driver shouted for him and thereafter came near to him and apprised him that
DLSH010068362019 Page 2 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
there is a foreigner in his taxi, seating on the back seat of the taxi, who has two
briefcases (i.e. one blue colour and one purple colour) and there might be some
dubious substance (sandigdh samaan) in those briefcases. Thereafter, HC Lalit
Kumar called Ct. Hargyan who was on duty at X-Ray machine. Thereafter, they
reached near taxi bearing no. DL-1RT-6776 who was standing near the coolie
road in front of reservation hall, wherein a 35 years old Foreign National (i.e.
accused) was sitting on the back seat with two briefcases. He was asked to
alight the taxi. Thereafter, the Foreign National alongwith briefcases was made
to alight the taxi with the help of Ct. Hargyan and taxi driver namely Sh.
Harender Pratap. He (Foreign National) was asked about the briefcases in
English, but he did not reply. He was asked to hand over keys of those
briefcases, but he did not provide the same, on that the chains of the briefcases
were opened by HC Lalit Kumar with the help of a pen and their contents were
checked. Both those briefcases were containing phool pattidaar and tanayukt
padarth in light green colour polythene. On checking, the said substance
appeared to be ganja.
Information qua same was given by HC Lalit Kumar to Duty
Officer with a request to send some official at the spot. On receiving the
information, ASI Vinod Kumar alongwith Ct. Narender reached the spot.
Thereafter, the said articles recovered from Foreign National were seized.
Accused was asked his name. He apprised his name as Emmanuel @ Emeka,
S/o Sh. Oluchukwu, R/o H.No. 8, Lagos Akionode Street, Nigeria. He had also
shown a valid passport and valid VISA. His personal search was conducted, as
per rules. On weighing the polythene recovered from blue colour briefcase on
which Arstocrate was written, the same was found containing 9.00 kgs ganja
DLSH010068362019 Page 3 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
and on weighing the polythene recovered from purple colour briefcase on which
Safari was written, the same was found containing 5.00 kgs ganja. Samples of
1/2-1/2 kg ganja were taken from both the polythenes. The samples as well as
case properties were seized with the seal of ‘V.K’. ASI had also made a site
plan of the spot in question at the instance of HC Lalit Kumar. As per FSL
report, it appears that the articles recovered from accused in both the polythenes
were found to be ‘Ganja’ (Cannabis). On these facts, FIR No. 38/2019 was
lodged at P.S. A.V.R.S. on 21.08.2019. Thereafter, accused was arrested.
Information qua arrest of accused was given to Nigeria Embassy through letter.
On verification from Ministry of External Affairs (MOEA), Govt. of India, it
came to light that passport of accused had expired on the date of offence in
question i.e. 21.08.2019 as it was valid till 27.01.2019 and VISA No.
VJ5874548 had also expired on 15.01.2015 on which accused came to India on
28.01.2014. Further, there was no record of his return and VISA No. VK950039
provided by accused was not issued to any person. The original passport of
accused was seized with the seal of ‘V.K’.
INVESTIGATION & OTHER PROCEEDINGS
2. Upon completion of investigation, on 15.10.2019 charge-sheet was
filed against accused U/s 20 NDPS Act. Thereafter, supplementary charge-sheet
with FSL result filed in the Court on 09.12.2019. Thereafter, on 17.02.2020 one
more supplementary charge-sheet was filed against accused U/s 20 NDPS Act
and 14 Foreigners Act.
CHARGE
DLSH010068362019 Page 4 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
3. Vide order dated 07.03.2020, charges U/s 20(b)(ii)(B)/61/85 NDPS
Act and 14 Foreigners Act, were framed against accused.
PROSECUTION EVIDENCE
4. In order to prove the aforesaid charges, the prosecution has
examined 14 witnesses.
5. PW-2 Sh. Harender Pratap Singh deposed that in the year 2019 he
was working as taxi driver at Anand Vihar Railway Station. On 21.08.2019 at
about 8:00 am he alongwith his taxi no. DL-1RT-6776 was present in the
parking of Anand Vihar Railway Station. At that time one foreigner having long
height and black colour came to him and hired his taxi to drop him (foreigner)
at Mehrauli. The said foreigner was having two briefcases out of which one
briefcase was of blue colour and the other was of purple ( jamuni) colour and he
was also having a black colour pittu bag. The said foreigner sat at the rear seat
of taxi with his (foreigner’s) above-said articles. This witness had suspicion on
seeing the said briefcases of the said passenger that the same may be containing
some wrong thing. On that, this witness called HC Lalit Kumar who was on
duty there and went near to HC Lalit Kumar and informed him regarding his
suspicion qua said foreigner. Thereafter, HC Lalit Kumar alongwith one another
police official got the said foreigner alighted from the taxi alongwith his
luggage and made inquiries from him in English language. HC Lalit Kumar
demanded keys of the briefcases from accused (witness has correctly identified
accused Emmanuel @ Emeka in the Court as the person who was passenger/
foreigner in his taxi), but he did not give the keys of the briefcases and
DLSH010068362019 Page 5 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
thereafter HC Lalit Kumar with the help of a pen, got opened the chain of the
briefcases. On opening both the briefcases, some light green colour phoolpatti
type substance was found. HC Lalit Kumar checked and declared the said
substance to be ganja. Thereafter, accused alongwith both the briefcases and
pittu bag was taken to Police Station Anand Vihar Railway Station by HC Lalit
Kumar and other police officials. This witness was also called at the Police
Station where one Constable weighed the ganja (i.e. substance which was
recovered from briefcase). On weighing the ganja, total ganja was found to be
14.00 kgs. 9.00 kgs ganja was recovered from the blue colour briefcase and 5.00
kgs ganja was recovered from second briefcase of Jamuni (purple) colour.
Name and address of this witness was noted by the police official and thereafter
he was relieved. No other proceedings was conducted by the police in presence
of this witness, however the police officials got his signatures on some papers
which were prepared during the proceedings. Accused was also asked to put his
signatures on the papers, but he refused to sign. This witness identified his
signature at Point-B on the seizure memo of ganja which is Ex. PW-3/A.
During his cross-examination on behalf of State, it is denied by him
that he has stated to the police that HC Lalit Kumar made call at the Police
Station through mobile phone and after sometime ASI Vinod Kumar alongwith
Ct. Narender came at the spot or that one notice was given to accused at the
spot. It is further denied by him that he has stated to the police that in his
presence two samples each of 500 gms were drawn from the recovered ganja.
He was confronted with statement Ex. PW-2/A where it is so recorded. It is
admitted by him that seizure memo Ex. PW-3/A (inadvertently mentioned as
Ex. PW-13/A) bears his signature at Point-B.
DLSH010068362019 Page 6 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
6. PW-1 HC Lalit Kumar deposed that in the intervening night of 20-
21.08.2019, he was posted as HC at P.S. Anand Vihar Railway Station. On that
day, he was on patrolling duty from 9:00 pm to 9:00 am in Beat No. 8 i.e.
parking area of Anand Vihar Railway Station. At about 8:00 am i.e. on
21.08.2019 when he reached in front of reservation hall of Anand Vihar
Railway Station, he saw that one taxi was parked there. The driver of the said
taxi came to him and told him that one foreigner was sitting in his car who has
booked his car for Mehrauli, New Delhi. The taxi driver also apprised this
witness that the said person (foreigner) was having two trolley bags and there
might be some illegal articles/ things (samaan) in the same. On that this witness
called Ct. Hargyan who was doing his duty on the X-Ray Machine which was
situated there. Both of them alongwith the driver of the said car reached near the
taxi. The name of the driver of the said car is Harender Pratap Singh and the
number of the said vehicle was DL-1RT-6776 make Eeco. Accused was sitting
on the back seat of the said car and was having two trolley bags. He was asked
to get down from the said car and this witness asked him about the said trolley
bags in English language, but he (accused) could not give any satisfactory
answer. This witness asked accused to provide the keys of the said trolley bags
as the bags were found locked. Both the trolley bags were taken out from the
said car. On the blue colour bag ‘Aristocrat’ was written and on the purple
(jamuni) bag ‘Safari’ was written. This witness first, opened the blue colour bag
with the help of a pen, which was found containing light green colour
polythene. The said polythene was opened wherein contraband ( phool pattidar
tana yukat padarth) was found. This witness smelled the same and it was found
DLSH010068362019 Page 7 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
to be ganja. Thereafter, this witness opened the second bag of purple colour
with the help of pen which was also found containing light green colour
polythene. The said polythene was opened wherein contraband ( phool pattidar
tana yukat padarth) was found. This witness smelled the same and it was also
found to be ganja. Thereafter, this witness gave information regarding the
above-mentioned facts to the Duty Officer and asked him to send some police
officers to the spot. After sometime ASI Vinod and Ct. Narender reached there.
This witness handed over both the trolley bags and accused to ASI Vinod. ASI
Vinod again checked both the trolley bags. Thereafter, ASI Vinod sent Ct.
Narender to Police Station to inform the SHO. Ct. Narender went to P.S.
A.V.R.S. (Anand Vihar Railway Station) and after sometime he came back at
the spot and informed to ASI Vinod Kumar that SHO A.V.R.S. was busy in his
govt. duty so he cannot come to the spot and Ct. Narender also informed that
SHO A.V.R.S. has given instruction for ASI Vinod Kumar to conduct legal
proceedings in the case as per law. Thereafter, ASI Vinod Kumar asked 8-9
passengers who were present there to join the proceedings after briefing them
about this case but none agreed to join the investigation and left from there
without disclosing their names and addresses and also by giving reasonable
excuses. No notice could be served upon them by ASI Vinod Kumar due to
paucity of time. ASI Vinod Kumar sent Ct. Narender to the maalkhana of P.S.
A.V.R.S. to bring cloth, weighing machine and weights. The above-said
foreigner disclosed his name as Emmanuel, S/o Sh. Oluchukwu resident of
H.No. 8, Lagos, Akionode Street Nigeria, aged 35 years.
It is stated that ASI Vinod Kumar recorded statement of this
witness which is Ex. PW-1/A. In the meantime, ASI Chandran (who was
DLSH010068362019 Page 8 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
Reader to SHO) came at the spot. ASI Vinod Kumar with the help of ASI
Chandran served original notice U/s 50 of the NDPS Act upon accused (witness
has correctly identified accused), but he refused to sign on the copy of the
notice U/s 50 of the NDPS Act. Copy of the said notice is Ex. PW-1/B. ASI
Vinod Kumar took out the entire contraband from both the trolley bags and
weighed the same on weighing machine separately. The contraband in trolley
bag of blue colour upon which Aristocrat was written in English was found
containing 9.00 kgs on weighing and the contraband in another trolley bag of
purple colour upon which Safari was written in English was found containing
5.00 kgs on weighing. ASI Vinod Kumar took out two samples of 500-500
grams each from the recovered contraband. Both the samples were kept in a
white transparent polythene and wrapped with white cloth and converted into
pullanda by affixing seal of VK by giving Mark-S1 and Mark-S2. The
remaining contraband were kept in the same light green polythenes which were
kept in the respective trolley bags and wrapped with white cloth and converted
into pullandas by affixing seal of VK by giving Mark-A1 and Mark-A2. All the
pullands were seized by the IO vide seizure memo Ex. PW-3/A. Seal after use
was handed over to this witness. ASI Vinod Kumar also filled FSL form at the
spot. ASI Vinod Kumar prepared the rukka on statement of this witness and
handed over the same to Ct. Narender alongwith seized case property i.e four
pullandas, FSL Form, copy of seizure memo and directed him to hand over the
rukka to the DO and the remaining things to SHO concerned. ASI Vinod Kumar
asked 8-9 public persons to join the investigation but none agreed to join the
investigation and left the spot without disclosing their names and addresses. No
notice was served upon them due to paucity of time. Ct. Narender came back at
DLSH010068362019 Page 9 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
the spot with copy of FIR and original rukka and handed over the same to the
IO/ ASI Vinod Kumar. ASI Vinod Kumar prepared the site plan at the instance
of this witness which is Ex. PW-3/B. IO ASI Vinod Kumar arrested accused
vide arrest memo Ex. PW-3/C. Notice U/s 52 of the NDPS Act for his arrest
was also served upon accused in duplicate. Accused has refused to sign the
same also. Carbon copy of notice U/s 52 of the NDPS Act is Ex. PW-1/C.
It is stated that personal search of accused was also conducted by
IO ASI Vinod Kumar vide personal search memo Ex. PW-3/D. During personal
search of accused one Samsung mobile phone of blue colour, one leather purse
of black colour containing Rs. 170/-, some visiting cards, one metro card and
one wrist watch of G-Shock make of black colour, one valid passport, one white
metal chain, original notice U/s 50 and notice U/s 52 of the NDPS Act, were
recovered. Thereafter, disclosure statement of accused was got recorded by ASI
Jaya Chandran in English which is Ex. PW-2/A. ASI Vinod Kumar asked Ct.
Amit to come at the spot. Thereafter, Ct. Amit came in govt. gypsy. This
witness alongwith Ct. Amit and accused went to dossier cell for conducting
dossier of accused. ASI Vinod Kumar relieved this witness from the spot and
directed this witness to take the accused for dossier.
At this stage, MHC(M) has produced original notices U/s 50 and
52 of the NDPS Act. Same were taken on record.
The original notice U/s 50 of the NDPS Act is Ex. PW-1/D and the
original notice U/s 52 of the NDPS Act is Ex. PW-1/E which were given to
accused and recovered during his personal search.
During his cross-examination on behalf of accused, it is stated by
him that no CCTV camera was installed at the spot. It is admitted by him that
DLSH010068362019 Page 10 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
neither the ACP, nor SHO came at the spot. It is denied by him that he has not
joined the investigation. It is denied by him that no public person was joined
into the investigation deliberately to falsely implicate the accused. It is denied
by him that nothing has been recovered from the accused. It is denied by him
that all the paper work was done while sitting in the Police Station.
7. PW-3 HC Hargyan deposed that in the intervening night of 20-
21.08.2019, he was posted as Constable at P.S. Anand Vihar Railway Station.
On that day, he was on duty from 9:00 pm to 9:00 am on the entry gate Anand
Vihar Railway Station on the DFMD machine (X-Ray machine).
On all other aspects he deposed on the same lines as deposed by
PW-1 ASI Lalit Kumar.
During recording of his testimony, MHC(M) has produced one
white envelope having the details of the present case written by ASI Vinod
alongwith serial no. 551/20. On opening the said envelope, the same was found
containing the personal search articles i.e. one Samsung mobile phone of blue
colour, one leather purse of black colour containing Rs. 170/- in denomination
of Rs. 100/-, Rs. 50/- of new currency note, Rs. 20/- old currency note, three
visiting cards of ‘Registration & Visa Extension Consultant’, one blue colour
metro card, one wrist watch of G-Shock make of black colour, one white metal
chain, one headphone lid and original notice U/s 50 & original notice U/s 52 of
the NDPS Act. On seeing the said articles, this witness has stated that these
articles were recovered from personal search of accused. All the articles with
envelope are Ex. P-1.
MHC(M) has also produced one another white envelope having the
DLSH010068362019 Page 11 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
details of the present case and serial no. 568/20 mentioned on the same. On
opening the said envelope, the same was found containing one white cloth
pullanda having seal of VK. Pullanda was opened which was found containing
green colour passport of Federal Republic of Nigeria bearing no. A05358481 in
the name of accused. On seeing the same, this witness submitted that the said
passport was recovered from personal search of accused. Passport with
envelope are Ex. P-2.
MHC(M) has also produced one black colour pittu bag upon which
TGC was written in red colour and animation & multimedia www.tgcindia.com
was written in white colour. The said bag was opened the same was found
containing two white polythene bags, one containing green colour T-shirt, one
mortein mosquito machine with empty filler. Another polythene was containing
blue colour relaxo sleeper. On seeing the same, this witness submitted that these
articles were recovered from the accused. All the articles with bag are Ex. P-3.
MHC(M) has also produced one white colour cloth pullanda having
Mark-A1 with case particulars duly sealed with the seals of VK and JDM. The
seals were broken and it was found containing one trolly bag of blue colour
make Aristocrat. A light grey polythene was taken out from the said trolly bag
and on opening the said polythene dried leaves were found and on seeing the
same, this witness stated that these were the same which were recovered from
the possession of accused. The trolly bag with contraband is Ex. P-4.
MHC(M) has also produced another white colour cloth pullanda
having Mark-A2 with case particulars duly sealed with the seals of VK and
JDM. The seals were broken and it was found containing one trolly bag of
purple colour make Safari. A light grey polythene was taken out from the said
DLSH010068362019 Page 12 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
trolly bag and on opening the said polythene dried leaves were found. On seeing
the same, this witness stated that these were the same which were recovered
from the possession of accused. The trolly bag with contraband is Ex. P-5.
During his cross-examination on behalf of accused, it is stated by
him that no CCTV footage was checked by him at or near the spot. It is stated
by him that CCTV footage was also not checked by the IO in his presence. It is
stated by him that the IO informed the SHO about the recovery, but not to any
First-Class Magistrate. It is stated by him that Ct. Narender was sent to inform
the SHO about the recovery. It is denied by him that accused has been falsely
implicated and that is why no CCTV footage has been placed on record. It is
stated by him that the notice U/s 50 of the NDPS Act was served by the IO in
his presence to accused. It is denied by him that the seizure memo was not
prepared at the spot. It is denied by him that he has not joined the investigation.
It is denied by him that no public person was joined into the investigation
deliberately to falsely implicate accused. It is denied by him that all the paper
work was done while sitting in the Police Station.
8. PW-4 SI Jaya Chandran deposed that on 21.08.2019 he was posted
in P.S. Anand Vihar as ASI and he was working as Reader to the SHO, P.S.
Anand Vihar. On that day, at about 9:00 am as per the directions of the SHO he
reached at opposite reservation hall near Coolie shade, where IO ASI Vinod
Kumar, HC Lalit alongwith other police staff had apprehended a Foreign
National alongwith two briefcases containing ganja. This witness correctly
identified accused Emmanuel @ Emeka. IO directed this witness to talk to
accused in English and this witness made inquiries from accused in English
DLSH010068362019 Page 13 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
language and he (accused) told his name as Emmanuel @ Emeka and his
whereabouts. Accused also apprised this witness that he was pursuing B.Com in
Nigeria. As per the direction of the IO, this witness had apprised accused that he
is having legal right to be searched in the presence of Gazetted Officer or
Magistrate and if he require then the G.O. or Magistrate may be called there.
Accused was also informed that he can take search of the police officials before
giving his search. This witness had also apprised accused that if accused
requires any legal help, same can be provided to him. Accused however refused
for the same by saying that he has faith in police. This witness had also inquired
accused about the substance i.e. ganja recovered from his briefcases and
accused told that in his briefcase he was carrying leafy vegetables. Accused also
failed to give any satisfactory reply about the journey ticket and apprised that he
had purchased journey ticket from some unknown person, but the journey ticket
was lost. Accused did not tell anything else. The IO prepared notice U/s 50 of
the NDPS Act and this witness had narrated the substance of the notice to
accused and thereafter reply of accused was written by this witness as per
narration of accused. Accused however did not sign on copy of the notice U/s
50 of the NDPS Act and notice U/s 52 NDPS Act, as he refused to sign. IO
recorded statement of this witness. After arrest of accused, this witness
interrogated him in English and wrote his disclosure statement which is Ex.
PW-4/A bearing signature of this witness at Point-A. Accused refused to sign
on the disclosure statement.
During his cross-examination on behalf of accused, it is stated by
him that he does not remember if any CCTV camera was installed near the
place of arrest of accused. It is denied by him that he has not joined the
DLSH010068362019 Page 14 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
investigation. It is denied by him that no public person was joined into the
investigation deliberately to falsely implicate accused. It is denied by him that
nothing was recovered from accused. It is denied by him that all the paper work
was done while sitting in the Police Station.
9. PW-5 ASI Bhupender deposed that on 20.08.2019 he was posted at
P.S. Anand Vihar Railway Station as HC. He was working as Duty Officer and
his duty hours were from 9:00 pm of 20.08.2019 till 9:00 am of 21.08.2019. At
about 8:43 am a telephonic information was received from HC Lalit Kumar
regarding apprehension of one person with ganja near reservation hall. This
witness registered the information vide DD No. 2A, copy of which is Ex. PW-
5/A (OSR) bearing signature of this witness at Point-A. The DD was marked to
ASI Vinod Kumar.
During his cross-examination on behalf of accused, it is denied by
him that the DD is ante-dated and ante-time.
10. PW-6 HC Anil deposed that on 28.08.2019 he was posted at P.S.
Anand Vihar Railway Station. On that day on the direction of SHO, he obtained
two sealed cloth pullandas from MHC(M) vide RC No. 36/21/19 and deposited
the same at FSL Rohini. After depositing it, he came back to the Police Station
and deposited the acknowledgment of FSL with MHC(M). Till the time the case
property was in possession of this witness, it has not been tampered with. Copy
of RC No. 36/21/19 is Mark-6A bearing his signature at Point-A. The copy of
acknowledgment of FSL is Mark-6B bearing his signature at Point-A.
During his cross-examination on behalf of accused, it is denied by
DLSH010068362019 Page 15 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
him that the parcels were not intact while the same were in his possession.
11. PW-7 HC Narender deposed that on 21.08.2019, he was posted at
P.S. Anand Vihar Railway Station as Constable. On that day, on receiving DD
No. 2A, he alongwith ASI Vinod reached near Coolie shed in front of
reservation hall, Anand Vihar Railway Station where HC Lalit and Ct. Hargyan
met them alongwith accused (witness has correctly identified the accused).
It is also stated by this witness that on instructions of ASI Vinod,
he went to P.S. Anand Vihar Railway Station (AVRS) where he came to know
that SHO was busy in his govt. duty so he cannot come to the spot. SHO, Anand
Vihar Railway Station has instructed this witness to tell ASI Vinod Kumar to
conduct legal proceedings in the case as per law. This witness came back to the
spot again and informed ASI Vinod Kumar.
On all other aspects he deposed on the same lines as deposed by
PW-1 ASI Lalit Kumar.
During his cross-examination on behalf of accused, it is stated by
him that no CCTV camera was installed at the spot. IO asked few passengers of
railway to join the investigation, but none agreed. It is admitted by him that no
written notice was given to them. It is admitted by him that neither the ACP, nor
SHO came at the spot. It is denied by him that no public person was joined into
the investigation deliberately to falsely implicate the accused. It is denied by
him that nothing has been recovered from the accused. It is denied by him that
all the paper work was done while sitting in the Police Station.
12. PW-8 ASI Sreejith deposed that he has been working as Reader to
DLSH010068362019 Page 16 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
ACP Sub Division Railway New Delhi since 2016. He has brought original
report U/s 57 NDPS Act regarding intimation received in their office vide diary
no. 1580 dated 22.08.2019. He has also brought the diary register for the year
2019 which shows the entry no. 1580 dated 22.08.2019. Report was seen and
signed by the then ACP Ms. Meera Sharma which bears her signature at Point-
A. Intimation report U/s 57 NDPS Act is Ex. PW-8/1 (Colly, original taken on
record alongwith copy of entry no. 1580).
During his cross-examination on behalf of accused, it is denied by
him that the entry is ante-dated and ante-timed.
13. PW-9 ASI Dinesh Kumar deposed that on 21.08.2019, he was
working as MHC(M) at P.S. Anand Vihar Railway Station. On that day at about
12:30 pm, Inspector Jaldhari Meena called this witness in his office and handed
over to this witness two sealed trolly bags Mark-A and Mark-B and carbon copy
of seizure memo on which the SHO has already put the FIR Number and his
signatures. The pullandas were already sealed with the seal of VK and JDM.
This witness made entry in register no. 19 at serial no. 576. Same is Ex. PW-
9/A (OSR). Inspector Jaldhari Meena also countersigned the entry in register
no. 19. On 21.08.2019, ASI Vinod deposited personal search articles of the
accused in the maalkhana alongwith one Passport alongwith copy of seizure
memo. This witness made entry vide serial no. 576 in this regard in register no.
19. Same is Ex. PW-9/A (OSR). On 28.08.2019 on the directions of SHO, this
witness handed over two sealed parcels sealed with the seal of VK and JDM to
Ct. Anil to be deposited at FSL vide RC No. 36/21/19. After depositing the
same, Ct. Anil came back and handed over acknowledgment of FSL to this
DLSH010068362019 Page 17 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
witness. The copy of RC No. 36/21/19 is Ex. PW-9/C bearing signatures of this
witness at Point-A and acknowledgment of FSL is Ex. PW-9/D. Till the time
the case property was in possession of this witness, it has not been tampered
with.
During his cross-examination on behalf of accused, it is denied by
him that the parcels were not intact when the same were in his custody or that
the parcels were tampered with. It is denied by him that the entries in register
no. 19 are ante-dated.
14. PW-10 ACP Jaldhari Meena deposed that on 21.08.2019, he was
posted at P.S. Anand Vihar Railway Station as SHO. At about 9:30 am, Ct.
Narender came to office of this witness and informed him about a Nigerian
National who was having ganja. He immediately informed ACP and discussed
the matter. He instructed ASI Vinod Kumar through Ct. Narender to complete
the proceedings as per law. At about 12:00 noon, Ct. Narender came to office of
this witness and handed over to him four sealed pullandas including two
pullanda of sample sealed with the seal of ‘VK’ and alongwith FSL Form with
the seal of VK and carbon copy of seizure memo. This witness affixed his seal
on the said four pullandas with his seal of JDM and affixed his sample seal
JDM on FSL Form. After confirming the FIR Number from the Duty Officer,
he wrote the same on all the pullandas, FSL Form and copy of seizure memo.
This witness also signed all the pullandas, FSL Form and copy of seizure
memo. He then called the MHC(M) CP alongwith register no. 19 in his office
and MHC(M) has made entry of all the details in the register no. 19 and this
witness handed over case property and all documents to MHC(M) CP. This
DLSH010068362019 Page 18 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
witness also signed at Point-A against the relevant entry in register no. 19
already Ex. PW-9/A (OSR). In this regard, this witness lodged a GD vide no.
9B at about 12:50 pm dated 21.08.2019 and same is Ex. PW-10/A which bears
his signatures at Point-A. His statement was recorded by the IO.
During his cross-examination on behalf of accused, it is denied by
him that he has not made proper entries as stated by him.
15. PW-11 retired SI Vinod Kumar deposed that in the intervening
night of 20-21.08.2019, he was posted as ASI at P.S. Anand Vihar Railway
Station. On that day on receiving DD No. 2A, he alongwith Ct. Narender
reached at the spot i.e. in front of reservation hall, near coolie shed, AVRS
Delhi.
On all other aspects he deposed on the same lines as deposed by
PW-1 ASI Lalit Kumar and PW-3 HC Hargyan.
It is further stated by him that he prepared the rukka on the
statement of HC Lalit which is Ex. PW-11/A and handed over the same to Ct.
Narender alongwith seized case property i.e four pullandas, FSL Form, copy of
seizure memo and directed him to hand over the rukka to the DO and the
remaining things to SHO concerned. This witness asked 8-9 public persons to
join the investigation but none agreed to join the investigation and left the spot
without disclosing their names and addresses. No notice was served upon them
due to paucity of time. It is stated by him that accused was produced before the
Court and was sent to J/C. This witness lodged DD No. 11A in this regard
which is Ex. PW-11/B which bears his signature at Point-A. It is stated by him
that information regarding arrest of accused was given to Nigerian Embassy.
DLSH010068362019 Page 19 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
During investigation, this witness sent the sealed parcels of samples to FSL for
analysis. After completion of investigation, he submitted the charge-sheet for
trial. After receiving the FSL result the same was also filed through
supplementary charge-sheet. During further investigation, this witness obtained
the passport which was recovered from the personal search of accused from the
MHC(M), prepared a parcel of the same which were sealed with the seal of VK.
It was sent to Ministry of External Affairs for verification of the passport. The
report regarding the passport was received and it was reported by Intelligence
Bureau that the passport belongs to the accused and its date of expiry was
27.01.2019, but the VISA No. VK9950039 affixed on the passport was not
issued to any person and rather accused arrived in India on VISA No.
VJ5874548 which has already expired. It was also reported by Nigerian High
Commission that the Passport No. A-05358481 belonging to accused has been
tampered with and is already a cancelled passport. After receipt of reports and
passport, this witness kept the same in a parcel which was sealed with the seal
of VK and he prepared seizure memo Ex. PW-11/C. He prepared supplementary
charge-sheet against accused U/s 14 Foreigners Act also and submitted the same
before the Court. The original notices U/s 50 and U/s 52 of the NDPS Act are
Ex. PW-1/D and Ex. PW-1/E.
MHC(M) produced one sealed parcel sealed with the seal of Court.
On opening the same, it is found containing one passport of Federal Republic of
Nigeria bearing no. A05358481 in the name of Emmanuel Oluchukwu. The
passport is already Ex. P-2. One Visa of India bearing no. VK9950039 issuing
date 20.05.2019 and date of its expiry 19.05.2020 were affixed. Another Visa of
India bearing no. VJ5874548 issuing date 16.12.2014 and date of expiry
DLSH010068362019 Page 20 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
15.01.2015 were affixed. This witness identifies the passport as recovered from
the personal search of accused and sent to Ministry of External Affairs for
verification.
At this stage, it was observed that the remaining case properties
have already been exhibited during the testimony of earlier witnesses. Hence,
the production of the case property was dispensed with.
During his cross-examination on behalf of accused, it is stated by
him that no CCTV camera was installed at the spot. It is stated by him that he
asked few passengers of railway to join the investigation but none agreed. It is
admitted by him that no written notice was given to them. It is admitted by him
that neither the ACP nor SHO came at the spot. It is denied by him that he has
not conducted fair investigation. It is denied by him that no public person was
joined into the investigation deliberately to falsely implicate the accused. It is
denied by him that nothing has been recovered from the accused. It is denied by
him that all the paper work was done while sitting in the Police Station.
16. PW-12 HC Ashok Kumar deposed that on 21.08.2019, he was
posted at P.S. AVRS as HC and was working as Duty Officer from 8:00 am to
4:00 pm. At about 12:14 pm Ct. Narender brought the rukka sent by ASI Vinod
Kumar, contents of which were dictated by this witness to the computer
operator and the FIR was registered vide FIR No. 38/2019 and computerized
copy of FIR was obtained. This witness handed over the copy of FIR and the
original rukka to Ct. Narender to hand over the same to ASI Vinod. The copy of
FIR is Ex. PW-12/A. This witness had made endorsement on the rukka and the
same is Ex. PW-12/B.
DLSH010068362019 Page 21 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
During his cross-examination on behalf of accused, it is denied by
him that the FIR is ante-dated and ante-timed.
17. PW-13 Sh. Rohit Kasana, Assistant Section Officer, PV-II Section,
CPV Division, Ministry of External Affairs, Govt. of India deposed that he has
been deputed by Sh. Bhopal Dutt, Senior Superintendent PV-II Section. He has
worked with Sh. Bhopal Dutt, Senior Superintendent PV-II Section and has
seen Sh. Bhopal Dutt, Senior Superintendent PV-II Section writing and signing
during the ordinary course of his (this witness) duty.
He has brought the original record pertaining to letter no.
VII/407/6/03. As per the record on 24.12.2019 Sh. Bhopal Dutt, Senior
Superintendent PV-II Section has made a request to High Commission of
Federal Republic of Nigeria for verification of passport no. A05358481 vide
letter no. VII/407/6/03 dated 24.12.2019, copy of which is Ex. PW-13/A (OSR)
bearing signatures of Sh. Bhopal Dutt, Senior Superintendent at Point-A. The
verification report of High Commission of Federal Republic of Nigeria
regarding the said passport dated 03.01.2020 was received, copy of which is Ex.
PW-13/B (OSR). Sh. Bhopal Dutt has sent the verification report of the
aforementioned passport alongwith copy of report of High Commission of
Federal Republic of Nigeria to ACP/ CNT, for DCP Headquarters Delhi vide
letter dated 09.01.2020 which is Ex. PW-13/C bearing signatures of Sh. Bhopal
Dutt at Point-A.
During his cross-examination on behalf of accused, it is stated by
him that he has no personal knowledge about the case. It is stated by him that he
has only brought the record as available in the office. He could not admit or
DLSH010068362019 Page 22 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
deny the suggestion that the passport with respect to which the enquiry was
made is with respect to the present accused or not.
18. PW-14 Sh. Rajesh Kumar, Assistant Central Intelligence Officer-I,
office at CFB, Intelligence Bureau, Ministry of Home Affairs, Govt. of India
deposed that he has been deputed by Sh. M.C. Roy, Addl. Deputy Director to
produce the office record regarding letter no. 4/CFB/2019(1)-VI-7735 vide
authorization letter Ex. PW-14/A bearing signatures of Sh. M.C. Roy at Point-
A. Sh. M.C. Roy has taken the print out of travel details of Emeka Emmanuel
Oluchukwu from the system and the same are Ex. PW-14/B and Ex. PW-14/C
bearing signatures of Sh. M.C. Roy at Point-A, respectively (printouts of the
same are also on judicial record). He (Sh. M.C. Roy) also issued certificate U/s
65-B of IEA qua the aforementioned printouts which is Ex. PW-14/D bearing
signatures of Sh. M.C. Roy at Point-A. As per their record Sh. S.K. Gupta, the
then Assistant Director has sent the verification report of passport no.
A05358481 and Indian VISA No. VK9950039 to Sh. Harender Kumar Singh,
Deputy Commissioner of Police/ Railways, New Delhi Railway Station, Ajmeri
Gate side, New Delhi vide letter no. 4/CFB/2019(1)-VI-7735 dated 02.01.2020
which is Ex. PW-14/E.
During his cross-examination on behalf of accused, it is stated by
him that he has no personal knowledge about the case. It is stated by him that he
has only brought the record as available in the office. He could not admit or
deny the suggestion that the passport/ VISA/ travel record with respect to which
the inquiry was made is with respect to the present accused or not.
DLSH010068362019 Page 23 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
19. During trial accused admitted FSL report dated 28.11.2019
prepared by Ms. Kavita Goyal, Assistant Director (Chemistry), FSL Rohini,
Delhi, U/s 330 BNSS. The FSL report is Ex. PX.
20. No other witness was examined by the prosecution. Thereafter,
P.E. was closed vide order dated 10.01.2025.
STATEMENT OF ACCUSED
21. Statement of accused was recorded under Section 313 Cr.P.C.
wherein he pleaded his innocence and denied entire prosecution’s case. It is
stated by him that the passport bearing no. A05358481 does not belong to him.
His original passport was seized in a matter pending at Tis Hazari Courts. It is
stated by him that it is a false case. It is stated by him that he has been falsely
implicated in the present case. He was coming from somewhere and had
reached Anand Vihar Railway Station only with his shoulder bag. He was not
carrying any trolly bag and the police officials at Anand Vihar Railway Station
falsely implicated him in the present case.
Accused chose to lead defence evidence.
DEFENSE EVIDENCE
22. In order to substantiate his defense, accused has examined 02
witnesses.
23. DW-1 Sh. Harsh Kumar, Ahlmad in the Court of Ms. Ekta Gauba
Mann, Ld. Special Judge, NDPS-01, Central District, Tis Hazari Courts, Delhi
DLSH010068362019 Page 24 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
deposed that he has been summoned alongwith record of FIR No. 31/2015, P.S.
Crime Branch. He has brought the judicial file of the aforesaid FIR in which
there is one original Passport bearing no. A03822853 issued on 28.01.2016 and
having expiry date 27.01.2021. Copies of the cover, first two pages and the last
page of the passport are Ex. DW-1/A (04 pages, OSR). The copy of charge
framed in the said case is Ex. DW-1/B and communication with FRRO is Ex.
DW-1/C regarding arrival and departure of the accused.
(Upon inquiry from the counsel to the effect that the passport Ex.
DW-1/A is of Obileku Chukwuebuka, whereas the name of accused in the FIR
No. 31/2015 is Mike and that of the present accused is Emmanuel @ Emeka,
Ld. Counsel submitted that the same is due to the fact that the police mentioned
the name of accused as Mike in the said case and Emmanuel @ Emeka in this
case. Upon further inquiry regarding whether any other document particularly
the VISA of the accused has also to be exhibited from the file produced by the
Ahlmad, Ld. Counsel submitted that the VISA of the accused is in the earlier
passport which finds mention on page 3 of passport exhibited today. On page 3
the previous travelled passport number is mentioned as A00484926).
24. DW-2 ASI Padma Kumar, No. 2644/D Legal Cell, FRRO, New
Delhi has brought the report of Assistant Foreigners Regional Registration
Officer, Headquarter, Delhi regarding passport nos. A00484926 and
A03822853. Same is Ex. DW-2/A bearing signatures of Assistant Foreigners
Regional Registration Officer at Point-A.
25. No other witness was examined by accused in his defense.
DLSH010068362019 Page 25 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
Thereafter, D.E. was closed vide order dated 21.04.2025.
FINAL ARGUMENTS
26. This Court has heard the Ld. Additional Public Prosecutor Sh.
Jitendra Sharma and the Ld. Counsel Sh. Mohsin Khan for the accused and
perused the record carefully.
27. It is contended on behalf of State that 14 kgs ganja was recovered
from the accused. It is contended that there is a public witness as well qua
recovery of ganja from the accused. It is contended that all the procedural
requirements under NDPS Act have been complied with in the present case.
Furthermore, accused was a Foreign National roaming around in India after
expiry of his passport and VISA, thus he is also liable to be convicted for
commission of offence U/s 14 of the Foreigners Act.
28. Per contra, it is contended on behalf of accused that there is no
CCTV footage of the alleged recovery filed on record, despite the fact that
recovery has been affected from Anand Vihar Railway Station where adequate
number of CCTV cameras have been installed. It is contended qua overstay in
India after expiry of passport, that a case U/s 14 of the Foreigners Act is already
pending against the accused at Tis Hazari Courts, hence he cannot be tried again
for the same offence as that would amount to double jeopardy. It is pointed out
that there are serious contradictions in the testimony of police witness’s vis-a-
vis testimony of public witness qua recovery procedure. Thus, the recovery
proceedings have been vitiated and cannot be relied upon.
DLSH010068362019 Page 26 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
Legal Requirement to prove the Charges :-
29. Section 20 NDPS Act reads as under :-
“20. Punishment for contravention in relation to cannabis plant and
cannabis.
Whoever, in contravention of any provision of this Act or any rule or
order made or condition of licence granted thereunder,–
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis,
shall be punishable,–
(i) where such contravention relates to clause (a) with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to
fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),–
(A) and involves small quantity, with rigorous imprisonment for a term
which may extend to one year, or with fine which may extend to ten thousand
rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater
than small quantity, with rigorous imprisonment for a term which may extend to
ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for
a term which shall not be less than ten years but which may extend to twenty
years and shall also be liable to fine which shall not be less than one lakh rupees
but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.”
(emphasis supplied)
30. As far as contravention of the provision is concerned, Section 8 of
NDPS Act completely prohibits the provision 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,
DLSH010068362019 Page 27 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Actuse, consume, import inter-State, export inter-State, import into India, export from
India or tranship any narcotic drug or psychotropic substance, except for medical
or scientific purposes and in the manner and to the extent provided by the
provisions of this Act or the rules or orders made thereunder and in a case where
any such provision, imposes any requirement by way of licence, permit or
authorisation also in accordance with the terms and conditions of such license,
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)
31. As per the Section, possession of all narcotic drugs is prohibited by
Section 8.
32. The term “narcotic drugs” is defined in Section 2(xiv) as under :
(xiv) “narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw
and includes all manufactured drugs;
33. As per the definition, ‘narcotic drug’ includes cannabis (hemp).
Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of
NDPS Act.
34. The term “cannabis (hemp)” is defined in Section 2(iii) of NDPS
Act, as under :
“(iii) “cannabis (hemp)” means–
(a) charas, that is, the separated resin, in whatever form, whether crude
or purified, obtained from the cannabis plant and also includes concentrated
DLSH010068362019 Page 28 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Actpreparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant
(excluding the seeds and leaves when not accompanied by the tops), by whatever
name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the
above forms of cannabis or any rink prepared therefrom”
(emphasis supplied)
35. “Cannabis (hemp)” besides other things also means Ganja i.e. the
flowering and fruiting tops of cannabis plant. In the present case, the
prosecution would be required to prove that the recovered substance was Ganja.
36. The prosecution would also be required to prove that the quantity
of the contraband recovered was of small, intermediate or commercial quantity.
The terms “small quantity” and “commercial quantity” are defined in Section
2(xxiiia) & 2 (viia), as under :
“(xxiiia) “small quantity”, in relation to narcotic drugs and
psychotropic substances, means any quantity lesser than the quantity specified by
the Central Government by notification in the Official Gazette;”
(viia) “commercial quantity”, in relation to narcotic drugs and
psychotropic substances, means any quantity greater than the quantity specified
by the Central Government by notification in the Official Gazette.”
37. The notification specifying small quantity & commercial quantity
vide SO1055(E) dated 19.10.2001 mentions the small quantity and commercial
quantity for various Narcotic Drugs & Psychotropic Substances, including
‘Ganja’. As per entry at serial no.55 in the said notification, the small quantity
for Ganja is 1000 gms and commercial quantity is 20 Kgs.
38. In order to prove the charges u/s.20(b)(ii)(C) NDPS Act, the
DLSH010068362019 Page 29 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
prosecution is required to prove the following facts :-
(1) That the accused were in possession of contraband.
(2) That the possession was in contravention of the provision of the
Act or any rule or order made or condition of license granted thereunder.
(3) That the contraband was Ganja.
(4) That the quantity of the contraband was intermediate (for
Section 20(b)(ii)(B) i.e. more than 1000gms and less than 20 Kgs).
(5) Further, in the present case, charges for commission of offence
punishable U/s 14 of Foreigners Act have also been framed, thus the
prosecution is also required to prove whether accused being a Foreign National
was overstaying in India after expiry of his passport and VISA, thus liable to be
convicted U/s 14 of the Foreigners Act.
39. Besides proving the aforesaid facts, the prosecution is also required
to prove that the investigating agency carried out the investigation in
compliance with the provisions of NDPS Act. The investigating agency must
adhere strictly to the legal procedure established during the search, ensuring
transparency and fairness in the investigation. By adhering to this procedure, the
agency demonstrates its commitment to protecting personal liberty, a
fundamental right of citizens. This ensures that the search was conducted in a
manner that upholds the principles of the judicial system. The credibility of the
evidence presented by the prosecution is enhanced when the investigating
agency follows the statute scrupulously.1 The failure to adhere to the procedure
raises a doubt in the mind of the court regarding the manner in which the
investigation is carried out, which obviously favors the accused.
DLSH010068362019 Page 30 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
40. In State of Punjab Vs. Balbir Singh 1994 INSC 96 , Hon’ble Apex
Court considered the scheme of the Act as under:
“4. The NDPS Act was enacted in the year 1985 with a view to
consolidate and amend the law relating to narcotic drugs, to make stringent
provisions for the control and regulation of operations relating to narcotic drugs
and psychotropic substances, to provide for the forfeiture of property derived
from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to
implement the provisions of the International Conventions on Narcotic Drugs and
Psychotropic Substances and for matters connected therewith. Sections 1 to 3 in
Chapter I deal with definitions and connected matters. The provisions in Chapter
II deal with the powers of the Central Government to take measures for
preventing and combating abuse of and illicit traffic in narcotic drugs and to
appoint authorities and officers to exercise the powers under the Act. The
provisions in Chapter III deal with prohibition, control and regulation of
cultivation of coca plant, opium poppy etc. and to regulate the possession,
transport, purchase and consumption of poppy straw etc. Chapter IV deals with
various offences and penalties for contravention in relation to opium poppy, coca
plant, narcotic drugs and psychotropic substances and prescribes deterrent
sentences. The provisions of Chapter V deals with the procedure regarding the
entry, arrest, search and seizure. Chapter VA deals with forfeiture of property
derived from or used in illicit traffic of such drugs and substances. The provisions
of Chapter VI deals with miscellaneous matters. We are mainly concerned with
Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57. Under Section 41 certain classes of
magistrates are competent to issue warrants for the arrest of any person whom
they have reason to believe to have committed any offence punishable under
Chapter IV or for search of any building, conveyance or place in which they have
reason to believe that any narcotic drug or psychotropic substance in respect of
which an offence punishable under Chapter IV has been committed, is kept or
concealed. Section 42 empowers certain officers to enter, search, seize and arrest
without warrant or authorisation. Such officer should be superior in rank to a
peon, sepoy or constable of the departments of central excise, narcotics, customs,
revenue, intelligence or any other department of the Central Government or an
officer of similar superior rank of the revenue, drugs control, excise, police or any
other department of a State Government as is empowered in this behalf by general
or special order of the State Government. Such officer, if he has reason to believe
from personal knowledge or information taken down in writing, that any offence
punishable under Chapter IV has been committed, he may enter into and search in
the manner prescribed thereunder between sunrise and sunset. He can detain and
search any person if he thinks proper and if he has reason to believe such person
to have committed an offence punishable under Chapter IV. Under the proviso,
DLSH010068362019 Page 31 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Actsuch officer may also enter and search a building or conveyance at any time
between sunset and sunrise also provided he has reason to believe that search
warrant or authorisation cannot be obtained without affording opportunity for
concealment of the evidence or facility for the escape of an offender. But before
doing so, he must record the grounds of his belief and send the same to his
immediate official superior.
Section 43 empowers such officer as mentioned in Section 42 to seize
in any public place or in transit, any narcotic drug or psychotropic substance in
respect of which he has reason to believe that an offence punishable under
Chapter IV has been committed and shall also confiscate any animal or
conveyance alongwith such substance. Such officer can also detain and search any
person whom he has reason to believe to have committed such offence and can
arrest him and any other person in his company. Section 44 merely lays down that
provisions of Sections 41 to 43 shall also apply in relation to offences regarding
coca plant, opium poppy or cannabis plant. Under Section 49, any such officer
authorised under Section 42, if he has reason to suspect that any animal or
conveyance is, or is about to be, used for the transport of any narcotic drug or
psychotropic substance, can rummage and search the conveyance or part thereof,
examine and search any goods in the conveyance or on the animal and he can stop
the animal or conveyance by using all lawful means and where such means fail,
the animal or the conveyance may be fired upon. Then comes Section 50. ……
This provision obviously is introduced to avoid any harm to the innocent persons
and to avoid raising of allegation of planting or fabrication by the prosecuting
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.P.C.” 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
DLSH010068362019 Page 32 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Actcheck any belated fabrication of evidence after arrest or seizure.”
41. It is settled legal proposition that the procedure provided under
Chapter V of the NDPS Act has to be scrupulously followed for the Court to
raise such presumption. For raising the presumption u/s 54 of the Act it must be
first established that recovery was made from the accused and the procedure
provided under the NDPS Act followed thoroughly without fail. It is further
settled law that for attracting the provision of Section 54 of NDPS Act, it is
essential for the prosecution to establish the element of possession of
contraband by the accused beyond reasonable doubt for the burden to shift to
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.
42. In the present case, while PW-1 HC Lalit Kumar was on patrolling
duty, PW-2 Sh. Harender Pratap Singh (i.e. taxi driver) apprised PW-1 HC Lalit
Kumar that a foreigner sitting in his taxi might be having contraband with him.
PW-1 HC Lalit Kumar immediately called PW-3 HC Hargyan who was on duty
at entry gate of Anand Vihar Railway Station on X-Ray machine and conducted
the search for contraband. It is a fact that the information received by HC Lalit
Kumar was not taking down in writing by him prior to initiating the search and
seizure procedure as per Section 42 of the NDPS Act.
43. It is contended by Ld. Addl. PP for the State that since the place of
DLSH010068362019 Page 33 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
recovery was a public place, hence Section 43 of the NDPS Act would apply to
the present matter and not Section 42 of the NDPS Act.
44. Section 43 of the NDPS Act applies when search and arrest are
conducted in a public place, which includes any public conveyance, hotel, shop,
or other place intended for use by, or accessible to, the public.
45. In the present matter, contraband was recovered from a taxi, now a
question arises whether a taxi at a public place would be considered a public
conveyance or not?
46. In the case titled as Directorate of Revenue Vs. Mohammed Nisar
Holia, decided on 05.12.2007, it was held by Hon’ble Supreme Court of India
that though a hotel is a public place, but a hotel room occupied by the accused
as a guest in the hotel is not a public place. As such, non-compliance of Section
42 of the NDPS Act would be detrimental to the case of prosecution.
47. In the case titled as Boota Singh Vs. State of Haryana, decided on
16.04.2021, it was held by Hon’ble Supreme Court of India that a private
vehicle would not come within the expression ‘public place’ as explained in
Section 43 of the NDPS Act, though, found standing at a public place.
48. In the case titled as Abdul Rashid Ibrahim Mansuri Vs. State of
Gujarat, decided on 01.02.2000, it was held by Hon’ble Supreme Court of India
that though the contraband were recovered from a three-wheeler, however non-
DLSH010068362019 Page 34 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
compliance of Section 42 of the NDPS Act would be detrimental to the case of
the prosecution.
49. On the basis of above-stated judgments, it can be safely held that a
taxi once exclusively hired by a passenger would not be considered as a public
conveyance. In the present matter, accused has hired the entire taxi from Anand
Vihar Railway Station to Mehrauli, that is it was not hired on shared basis. In
such circumstances, the taxi cannot be considered to be a public conveyance. As
such compliance of Section 42 of the NDPS Act was essential in the present
matter.
50. As per settled provision of Section 42 of the NDPS Act, the
concerned police officer, to whom the secret information was received, is
required to inform his immediate senior officer immediately about the secret
information and send the information so reduced into writing within 72 hours of
its receipt to superior officer.
51. Now, question which arises here is whether failure to take down the
information in writing and non-sending the report to the empowered officer of a
gazetted rank would amount to violation of Section 42 of the NDPS Act ?
52. The Hon’ble Supreme Court in Karnail Singh Vs. State of
Haryana, (2009) 8 SCC 539 has dealt with this issue and observed as under: –
(a) The officer on receiving the information [of the nature referred to in sub-
section (1) of Section 42] from any person had to record it in writing in
DLSH010068362019 Page 35 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
the register concerned and forthwith send a copy to his immediate
official superior, before proceeding to take action in terms of clauses (a)
to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police
station, but while he was on the move either on patrol duty or otherwise,
either by mobile phone, or other means, and the information calls for
immediate action and any delay would have resulted in the goods or
evidence being removed or destroyed, it would not be feasible or
practical to take down in writing the information given to him, in such a
situation, he could take action as per clauses (a) to (d) of Section 42(1)
and thereafter, as soon as it is practical, record the information in writing
and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1)
and 42(2) in regard to writing down the information received and
sending a copy thereof to the superior officer, should normally precede
the entry, search and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the information in
writing and sending a copy thereof to the official superior may get
postponed by a reasonable period, that is, after the search, entry and
seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of sub-sections (1) and (2)
of Section 42 is impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable compliance with Section
42. To illustrate, if any delay may result in the accused escaping or the
goods or evidence being destroyed or removed, not recording in writing
the information received, before initiating action, or non- sending of a
copy of such information to the official superior forthwith, may not be
treated as violation of Section 42. But if the information was received
when the police officer was in the police station with sufficient time to
take action, and if the police officer fails to record in writing the
information received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a clear violation
of Section 42 of the Act. Similarly, where the police officer does not
record the information at all, and does not inform the official superior at
all, then also it will be a clear violation of Section 42 of the Act.
Whether there is adequate or substantial compliance with Section 42 or
not is a question of fact to be decided in each case.”
53. From the above-stated case, it is apparent that in the present matter,
it was not required to first take down the information in writing as information
was received by HC Lalit Kumar, while he was on patrolling duty and any delay
DLSH010068362019 Page 36 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
on his part would have resulted in the accused escaping or the goods or
evidence being destroyed or removed. However, after seizure of the contraband
and apprehension of the accused HC Lalit Kumar was required to take down the
information in writing and forthwith conveyed the same to officials superior to
him, which has not been done by HC Lalit Kumar in the present matter as after
seizure of the contraband and apprehension of the accused, he only made a
telephonic call to the Duty Officer qua recovery of the contraband from the
possession of accused and apprehension of accused. This information was
recorded vide GD No. 002A by the Duty Officer and ASI Vinod Kumar and Ct.
Narender were sent to carry out the further proceedings. SHO was also
informed qua said recovery. However, it is a fact that no written information
was sent by HC Lalit Kumar qua recovery of contraband and apprehension of
the accused. He had only sent the information for appointment of an IO to carry
out the further investigation.
Thus, in the present case, requirement of Section 42 of the NDPS
Act have not been duly complied with.
Discussion on the point of compliance of Section 50 of NDPS Act
54. Section 50 NDPS Act is as under :-
“Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any
person under the provisions of section 41, section 42 or section 43, he shall, if
such person so requires, take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in section 42 or to the
nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring
him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
DLSH010068362019 Page 37 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
(3) The Gazetted Officer or the Magistrate before whom any such person is
brought shall, if he sees no reasonable ground for search, forthwith discharge the
person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it
is not possible to take the person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or controlled
substance or article or document, he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate, proceed to search the person as provided
under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the
reasons for such belief which necessitated such search and within seventy-two
hours send a copy thereof to his immediate official superior.”
(emphasis supplied)
55. Notice U/s 50 of the NDPS Act was given to the accused in English
in the present case. The notice was read over and explained to him in English by
the police officials. He was apprised that if he wants it is possible to conduct his
personal search in the presence of Gazetted Officer or Magistrate as he would
prefer. However, accused refused for the same and also refused to sign the notice
and only after his refusal to avail his legal rights, his search was carried out.
Copy of the said notice is Ex. PW-1/B. However, nothing was recovered in the
personal search of accused, thus notice U/s 50 of the NDPS Act was not required
to be served in the present matter.
56. In view of the submission of Ld. Addl PP another question that
came up for consideration of the Court is: Whether compliance of Section 50
NDPS Act was required in the present case as the recovery was effected from
the trolly bags/ briefcases being carried by the accused and not from the person
of the accused?
DLSH010068362019 Page 38 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
57. It may be noted that from the bodily search of the accused, no
contraband was recovered. The contraband (ganja) was found in the two trolly
bags/ briefcases which the accused was carrying at the time of his apprehension.
As regards recovery made from katta, briefcase or vehicle of the suspect is
concerned, it has been observed by the Hon’ble Apex Court that the provisions
of section 50 NDPS Act do not apply to recoveries other than those made from
the person of the accused.
58. In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat 2000 Cr.L.J
1384 four gunny bags were found in an auto rickshaw which the suspect was
driving and there was no other person present. The argument based on non-
compliance of Section 50, as explained in the case of State of Punjab Vs. Baldev
Singh and Ors., MANU/SC/0981/1999, was rejected on the ground that the
gunny bags were not inextricably connected with the person of the accused.
59. In Madan Lal Vs. State of H.P. MANU/SC/0599/2003 it was held
that Section 50 would apply in the case of search of a person as contrasted to
search of vehicles, premises or articles.
60. In Sarjudas Vs. State of Gujarat, 2000 Cr.L.J 509 suspect were
riding a scooter on which a bag was hanging in which charas was found. Section
DLSH010068362019 Page 39 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
50 was held not applicable as it was not a case where the person of the accused
was searched.
61. In Saikou Jabbi v. State of Maharashtra MANU/SC/0991/2003,
Heroine was found in a bag being carried by suspect. It was held that Section 50
was not applicable as it applies to search of a person.
62. Hon’ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019
INSC 1145 made following observations in this regard :-
“16. As regards applicability of the requirements Under Section 50 of the Act are
concerned, it is well settled that the mandate of Section 50 of the Act is confined
to “personal search” and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its
judgment in Baldev Singh clearly states that the conviction may not be based
“only” on the basis of possession of an illicit Article recovered from personal
search in violation of the requirements Under Section 50 of the Act but if there be
other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of
any contraband. Even if there was any such recovery, the same could not be relied
upon for want of compliance of the requirements of Section 50 of the Act. But the
search of the vehicle and recovery of contraband pursuant thereto having stood
proved, merely because there was non-compliance of Section 50 of the Act as far
as “personal search” was concerned, no benefit can be extended so as to invalidate
the effect of recovery from the search of the vehicle. Any such idea would be
directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip’s case, however, has not adverted to the
distinction as discussed hereinabove and proceeded to confer advantage upon the
Accused even in respect of recovery from the vehicle, on the ground that the
DLSH010068362019 Page 40 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Actrequirements of Section 50 relating to personal search were not complied with . In
our view, the decision of this Court in said judgment in Dilip’s case is not correct
and is opposed to the law laid down by this Court in Baldev Singh and other
judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs.
were found from the vehicle which was being driven by Accused-Baljinder Singh
with the other Accused accompanying him, their presence and possession of the
contraband material stood completely established.”
63. In view of the law laid down in State of Punjab Vs. Baldev Singh,
(1999) 6 SCC 172 and State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 as
well as other judgments cited above, it is held that the compliance of Section 50
NDPS Act is not mandatory in the present case, as the recovery was effected
from the trolly bags/ briefcases being carried by the accused and not from the
person of the accused.
64. Section 55 of the NDPS Act was duly complied with in the present
matter as SHO has also put his seal on the samples and contraband recovered.
Compliance of Section 57 of the NDPS Act
65. Section 57 of NDPS Act is reproduced as under:
“57. Report of arrest and seizure.–
Whenever any person makes any arrest or seizure, under this Act, he shall,
within forty-eight hours next after such arrest or seizure, make a full report of all the
particulars of such arrest or seizure to his immediate official superior.”
66. In the present matter, there is single report U/s 57 of the NDPS Act
which is on record which was prepared by SHO, P.S. Anand Vihar Railway
DLSH010068362019 Page 41 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
Station, however no such report was prepared either in writing or oral or
electronically, either by HC Lalit Kumar (PW-1) who had recovered the
contraband or by ASI Vinod Kumar (PW-11) who had arrested the accused and
seized & sealed the contraband.
67. At this juncture the Court would like to refer to two decisions of
Hon’ble Apex Court in this aspect. In Sajan Abraham Vs. State of Kerala
MANU/SC/0424/2001 Hon’ble Apex Court held as under:
12. The last submission for the appellant is, there is non-compliance of Section 57
of the Act. He submits under it, an obligation is cast on the prosecution while
making an arrest or seizure, the officer should make full report of all particulars of
such arrest or seizure and send it to his immediate superior officer within 48 hours
of such arrest of seizure. The submission is, that has not been done. Hence the
entire case vitiates. It is true that the communication to the immediate superior has
not been made in the form of a report, but we find, which is also recorded by the
High Court that PW 5 has sent copies of FIR and other documents to his superior
officer which is not in dispute. Ex. P9 shows that the copies of the FIR along with
other records regarding the arrest of appellant and seizure of the contraband
articles were sent by PW 5 to his superior officer immediately after registering the
said case. So, all the necessary information to be submitted in a report was sent.
This constitutes substantial compliance and mere absence of any such report
cannot be said it has prejudiced the accused. This section is not mandatory in
nature. When substantial compliance has been made, as in the present case it
would not vitiate the prosecution case. In the present case, we find PW 5 has sent
all the relevant material to his superior officer immediately. Thus we do not find
any violation of section 57 of the Act.
68. In State of Punjab Vs. Balbir Singh, 1994(1) RCR Criminal 737,
Hon’ble Apex Cour held:
The provisions of Sections 52 and 57 which deal with the steps to be taken by the
officers after making arrest of seizure under Section 41 to 44 are by themselves
not mandatory.
DLSH010068362019 Page 42 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
69. Accordingly, in the opinion of the Court the provisions of Section
57 of the NDPS Act were duly complied with by the Investigating Agency in
the facts of the present case. However, compliance of Section 57 of the NDPS
Act is not a mandatory provision.
Compliance of Section 52 of the NDPS Act
70. In the present matter, at the time of arrest ASI Vinod Kumar had
given a notice to accused, apprised him grounds of his arrest, however accused
refused to sign the notice (carbon copy of the notice U/s 52 of the NDPS Act is
Ex. PW-1/C). It is to be noted that this provision is only directory in nature i.e.
obligation is not necessary to the validity of the proceeding to which it relates.
However, in the present matter, provisions of Section 52 of the NDPS Act were
substantially complied with as notice was given in English, apprised to the
accused in English, however he refused to sign the same.
Compliance of Section 52A of the NDPS Act
71. As a matter of fact, in the present case the sampling proceedings
were conducted, but not before the Ld. Magistrate U/s 52A of the NDPS Act,
rather by IO ASI Vinod Kumar.
72. At this point relevant judgment to be relied upon delivered in the
case titled as Bharat Aambale Vs. State of Chhattisgarh, 2025 INSC 78 wherein
Hon’ble Apex Court answered the question whether non-compliance of Section
52A NDPS Act leads to automatic acquittal. This was the only ground on which
DLSH010068362019 Page 43 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
the conviction upheld by Hon’ble High Court was under challenged before the
Hon’ble Apex Court. Relevant paras indicating the issue directly before the
Hon’ble Court are as under :-
“…..32. Thus, the prosecution sans the compliance of the procedure under Section
52A of the NDPS Act will not render itself helpless but can still prove the seizure
or recovery of contraband by leading cogent evidence in this regard such as by
examining the seizing officer, producing independent witnesses to the recovery,
or presenting the original quantity of seized substances before the court. The
evidentiary value of these materials is ultimately to be assessed and looked into
by the court. The court should consider whether the evidence inspires confidence.
The court should look into the totality of circumstances and the credibility of the
witnesses, being mindful to be more cautious in their scrutiny where such
procedure has been flouted. The cumulative effect of all evidence must be
considered to determine whether theprosecution has successfully established the
case beyond reasonable doubt as held in Noor Aga Vs. State of Punjab and Anr.,
(2008) 16 SCC 417.
33. Even in cases where there is non-compliance with the procedural requirements
of Section 52A, it does not necessarily vitiate the trial or warrant an automatic
acquittal. Courts have consistently held that procedural lapses must be viewed in
the context of the overall evidence. If the prosecution can otherwise establish the
chain of custody, corroborate the seizure with credible testimony, and prove its
case beyond reasonable doubt, the mere non-compliance with Section 52A may
not be fatal. The emphasis must be on substantive justice rather than procedural
technicalities, and keeping in mind that the salutary objective of the NDPS Act is
to curb the menace of drug trafficking.”
73. The Hon’ble Court finally summarized the law on the subject in
para 50 as under :
“50. We summarize our final conclusion as under: –
(I) Although Section 52A is primarily for the disposal and destruction
of seized contraband in a safe manner yet it extends beyond the immediate
context of drug disposal, as it serves a broader purpose of also introducing
procedural safeguards in the treatment of narcotics substance after seizure
inasmuch as it provides for the preparation of inventories, taking of photographs
of the seized substances and drawing samples therefrom in the presence and with
the certification of a magistrate. Mere drawing of samples in presence of a
DLSH010068362019 Page 44 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Actgazetted officer would not constitute sufficient compliance of the mandate under
Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the
seized substance must take place at the time of seizure as held in Mohanlal
(supra), yet we are of the opinion that the process of inventorying, photographing
and drawing samples of the seized substance shall as far as possible, take place in
the presence of the accused, though the same may not be done at the very spot of
seizure.
(III) Any inventory, photographs or samples of seized substance
prepared in substantial compliance of the procedure prescribed under Section 52A
of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be
mandatorily treated as primary evidence as per Section 52A sub-section (4) of the
NDPS Act, irrespective of whether the substance in original is actually
produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in
terms of Section 52A of the NDPS Act is only intended to guide the officers and
to see that a fair procedure is adopted by the officer in-charge of the investigation,
and as such what is required is substantial compliance of the procedure laid
therein.
(V) Mere non-compliance of the procedure under Section 52A or the
Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the prosecution’s case doubtful,
which may not have been there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies that may exist in the
evidence adduced by the prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or
documentary inspires confidence and satisfies the court as regards the recovery
as-well as conscious possession of the contraband from the accused persons, then
even in such cases, the courts can without hesitation proceed to hold the accused
guilty notwithstanding any procedural defect in terms of Section 52A of the
NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or
rules thereunder may lead the court to drawing an adverse inference against the
prosecution, however no hard and fast rule can be laid down as to when such
inference may be drawn, and it would all depend on the peculiar facts and
circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either
following the procedure laid down in Section 52A of the NDPS Act or the
prosecution in proving the same, it will not be appropriate for the court to resort to
the statutory presumption of commission of an offence from the possession of
illicit material under Section 54 of the NDPS Act, unless the court is otherwise
satisfied as regards the seizure or recovery of such material from the accused
persons from the other material on record.
DLSH010068362019 Page 45 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
(IX) The initial burden will lie on the accused to first lay the
foundational facts to show that there was non-compliance of Section 52A, either
by leading evidence of its own or by relying upon the evidence of the prosecution,
and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of
Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to
prove by cogent evidence that either (i) there was substantial compliance with
the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such
non-compliance does not affect its case against the accused, and the standard of
proof required would be beyond a reasonable doubt.”
(emphasis supplied)
74. Though, in the present case there is no compliance of section 52A
NDPS Act, as the sampling proceedings were done by the IO, however, in view
of the judgment in Narcotics Control Bureau Vs. Kashif, 2024 INSC 1045,
decided on 20.12.2024 and Bharat Aambale (supra), the said fact by itself does
not vitiate the trial. As held by the Hon’ble Court in absence of compliance U/s
52A NDPS Act the onus is upon the prosecution to prove by cogent evidence
that such non-compliance does not affect its case against the accused, and the
standard of proof required would be beyond a reasonable doubt.
75. In the present case, ASI Vinod Kumar took out two samples of
500-500 grams each from the recovered contraband (phool pattidar tana yukat
padarth and on smelling the same by HC Lalit Kumar, it was found ganja). Both
the samples were kept in a white transparent polythene and wrapped with white
cloth and converted into pullanda by affixing seal of VK by giving Mark-S1 and
Mark-S2. The remaining contraband were kept in the same light green
polythenes which were kept in the respective trolley bags and wrapped with
white cloth and converted into pullandas by affixing seal of VK by giving
DLSH010068362019 Page 46 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
Mark-A1 and Mark-A2. All the pullands were seized by the IO ASI Vinod
Kumar vide seizure memo Ex. PW-3/A which bears signature of ASI Vinod
Kumar at Point-C. ASI Vinod Kumar also filled FSL form at the spot. ASI
Vinod Kumar prepared the rukka on statement of HC Lalit Kumar and handed
over the same to Ct. Narender alongwith seized case property i.e four pullandas,
FSL Form, copy of seizure memo and directed him to hand over the rukka to the
Duty Officer and the remaining things to SHO concerned. SHO concerned also
put his seal ‘JDM’ on the said pullandas.
76. As per FSL report Ex. PX the sample sealed parcels (i.e. Mark-S1
and Mark S-2 duly sealed with the seal of VK and JDM) containing dried
greenish brown coloured flowering & fruiting vegetative material, weight
approx. 490.2 gm with polythene were received in the FSL and after
examination by FSL, the said samples (Ex. S-1 and S-2) were found to be
‘Ganja’ (Cannabis).
77. It is to be noted that the case property was produced in the Court by
MHC(M) in duly sealed condition. During testimony of PW-3 HC Hargyan
MHC(M) has produced one white colour cloth pullanda having Mark-A1 with
case particulars duly sealed with the seals of VK and JDM. The seals were
broken and it was found containing one trolly bag of blue colour make
Aristocrat. A light grey polythene was taken out from the said trolly bag and on
opening the said polythene dried leaves were found and on seeing the same,
PW-3 stated that it were the same which were recovered from the possession of
accused. The trolly bag with contraband is Ex. P-4.
DLSH010068362019 Page 47 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
MHC(M) has also produced another white colour cloth pullanda
having Mark-A2 with case particulars duly sealed with the seals of VK and
JDM. The seals were broken and it was found containing one trolly bag of
purple colour make Safari. A light grey polythene was taken out from the said
trolly bag and on opening the said polythene dried leaves were found. On seeing
the same, this witness stated that they were the same which were recovered
from the possession of accused. The trolly bag with contraband is Ex. P-5.
As such, it can be held that the case property which is primary
evidence in the present matter, has been duly proved on record.
Discrepancies in the testimonies of the police witnesses and public
witness qua recovery proceedings
78. In the present matter taxi driver Sh. Harender Pratap Singh (PW-2)
was the first one who had suspicion on accused. He had informed HC Lalit
Kumar who was on patrolling duty nearby and thereafter, seizure and
apprehension proceedings had taken place.
79. As per police officials PW-1 HC Lalit Kumar, PW-3 HC Hargyan,
PW-4 SI Jaya Chandran, PW-7 HC Narender and PW-11 ASI Vinod Kumar,
after sending intimation to the Police Station, ASI Vinod Kumar and Ct.
Narender had reached the spot. ASI Vinod Kumar weighed the contraband,
draw the samples and sealed the samples & contraband at the spot.
However, taxi driver Sh. Harender Pratap Singh (PW-2), who is the
sole public witness in the present case, had stated that after recovery of
contraband by HC Lalit Kumar, accused alongwith both the briefcases and pittu
DLSH010068362019 Page 48 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
bag of the accused was taken to P.S. Anand Vihar Railway Station. He (PW-2)
was also called at the Police Station and it is only in the Police Station the
contraband was weighed and seized. He admitted his signature at Point-B on the
seizure memo of ganja which is already Ex. PW-3/A. Even in his cross-
examination on behalf of State, PW-2 had denied if HC Lalit Kumar (PW-1)
made call at the Police Station through mobile phone and after sometime ASI
Vinod Kumar alongwith Ct. Narender came at the spot. It is also denied by PW-
2 that the contraband was weighed and samples were drawn from the recovered
ganja in his presence.
This is a material contradiction in the case of the prosecution which
goes to the root of the matter as a reasonable doubt has arisen qua the recovery
proceedings in the present matter which is the base of the present case.
Furthermore, there are certain other unanswered questions in the present case
which are as follows :-
(a) There is no explanation in entire testimony as to how taxi driver
Sh. Harender Pratap Singh (PW-2) got suspicious about availability of
contraband in the briefcases of the accused.
(b) No journey ticket of the accused could be recovered by the police
officials as the accused apprised them that he had purchased journey ticket from
some unknown person, but the journey ticket was lost. There is no investigation
on the fact that from where the accused had come to Anand Vihar Railway
Station. Accused did not tell this to the police officials. Police officials also
could not investigate about the same.
DLSH010068362019 Page 49 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
(c) Further, despite the fact that the place of recovery was Railway
Station and in the year 2019 when the offence in question was committed,
CCTV cameras were generally installed in the Railway Stations, still no CCTV
footage has been collected by the police officials to show from which train
accused had de-boarded or his movement from train to the taxi or qua recovery
of contraband from briefcases/ trolly bags of the accused.
80. The above-mentioned discrepancies make the prosecution story of
recovery of contraband from the accused, doubtful. It is a settled proposition of
criminal law that prosecution is supposed to prove its case on judicial file
beyond reasonable doubt by leading reliable, cogent and convincing evidence.
In order to prove its case on judicial file, prosecution is supposed to stand on its
own legs and it cannot derive any benefit whatsoever from the weaknesses, if
any, of the defence of the accused.
81. Since, recovery of contraband from the possession of the accused
has not been proved beyond reasonable doubt in the present case, thus the
prosecution has failed to prove the foundational facts against the accused
beyond reasonable doubt. The presumption under sections 35 and 54 of the
NDPS Act cannot be raised in this case against the accused.
Offence U/s 14 of the Foreigners Act
82. In the present matter, accused who is a Foreign National being
citizen of Nigeria has also been charged for commission of offence punishable
DLSH010068362019 Page 50 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
U/s 14 of the Foreigners Act, as on inquiry from concerned departments and
Embassy it was found that the passport and VISA shown by him to the police at
the time of his apprehension were not proper. The passport shown by him was
showing validity from 28.01.2014 till 27.01.2024 and VISA bearing no.
VK9950039 was showing validity from 20.05.2019 till 19.05.2020. Further,
during investigation, fingerprints of the accused were taken, on that it came to
light that the fingerprints were earlier received in FIR No. 31 dated 12.03.2015,
P.S. Crime Branch of NDPS Act wherein name of the accused as was given as
Mike, S/o Obinjekwe (document of Fingerprint Bureau, Delhi Police, is on
record), this is how his previous case was came to light and also the fact that he
has given different names in different cases.
Per contra, it is contended on behalf of accused that the said
passport and VISA were planted on him by the police officials. It is also
mentioned by him that his original passport is available in the file of a case
pending against him in Tis Hazari Courts, i.e. FIR No. 31/15, P.S. Crime
Branch. Similarly stated by the accused in his statement U/s 313 Cr.P.C., thus it
is claimed by him that he is a Foreign National i.e. a Nigerian. It is also
contended that name of the accused is not Emmanuel @ Emeka. The police
officials have wrongly noted his name.
83. Section 14 of the Foreigners Act, 1946, reproduce as under :-
“14. Penalty for contravention of provisions of the Act, etc. —
Whoever. —
(a) remains in any area in India for a period exceeding the period for
which the visa was issued to him;
(b) does any act in violation of the conditions of the valid visa issued to
DLSH010068362019 Page 51 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Acthim for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made
thereunder or any direction given in pursuance of this Act or such order for which
no specific punishment is provided under this Act, shall be punished with
imprisonment for a term which may extend to five years and shall also be liable to
fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2)
of section 3, his bond shall be forfeited, and any person bound thereby shall pay
the penalty thereof or show cause to the satisfaction of the convicting Court why
such penalty should not be paid by him.
Explanation. — For the purposes of this section, the expression “visa”
shall have the same meaning as assigned to it under the Passport (Entry into India)
Rules, 1950 made under the Passport (entry into India) Act, 1920 (34 of 1920).”
84. In the present case, at the time of his arrest on 21.08.2019 accused
apprised his name to the official as Emmanuel @ Emeka, S/o Sh. Oluchukwu.
He had also provided a passport bearing no. A05358481, valid upto 27.01.2024
and VISAs bearing no. VJ5874548 and VK9950039, valid upto 19.05.2020 in
that name i.e. Emmanuel @ Emeka, S/o Sh. Oluchukwu. The contention of Ld.
Defence Counsel that this passport and VISAs were planted on accused by the
police officials, is not tenable as in his statement U/s 313 Cr.P.C. accused has
himself stated that he was coming from somewhere and reached Anand Vihar
Railway Station where he was falsely implicated by the police officials. Thus,
even as per his own version, accused reached the spot by chance. He was not
brought to that place by the police officials. Thus, police officials had no
opportunity or time to arrange forged passport and VISAs for planting the same
on the accused. Thus, it is clear that it was accused only who was carrying that
passport bearing no. A05358481 and VISAs bearing no. VJ5874548 and
VK9950039.
85. As per the report of Intelligence Bureau Ex. PW-14/E, the passport
DLSH010068362019 Page 52 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
bearing no. A05358481 was issued in the name of one Emmanuel @ Emeka
having validity from 28.01.2014 till 27.01.2019. In Ex. PW-13/B which is a
report from the High Commission of Federal Republic of Nigeria addressed to
Ministry of External Affairs, it is apprised that passport no. A05358481 has
been tampered with and is already a cancelled passport.
As per the report of Intelligence Bureau Ex. PW-14/E, VISA No.
VJ5874548 was issued on 16.12.2014 in the name of that person who had come
to India on 28.12.2014, having expiry date 15.01.2015, however, there is no
departure entry of that person available with Intelligence Bureau. It is further
reported that VISA No. VK9950039 was not issued to any person.
86. Passport of Emmanuel @ Emeka as handed over to police officials
of P.S. Anand Vihar Railway Station is not claimed by the accused to be his
own, rather it is contended that the same has been planted on him by the police
officials of P.S. Anand Vihar Railway Station. It is stated by accused in his
statement U/s 313 Cr.P.C. that in the previous case at Tis Hazari Courts his
original passport is deposited, on that defence witnesses were called from
concerned Tis Hazari Courts as well as from FRRO. From the documents
available in Tis Hazari Courts exhibited in his Court as Ex. DW-1/A (copy of
passport bearing no. A03822853), Ex. DW-1/B is the copy of charge framed in
that case, Ex. DW-1/C is the reply of office of FRRO filed in that Court, it
appears that the passport which accused claims to be his own is bearing no.
A03822853 which is in the name of Obileku Chukwuebuka. However, name of
the accused in that case is Mike, S/o Sh. Obinjekwe.
DLSH010068362019 Page 53 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
87. It is stated by Ld. Counsel for accused that officials of both the
Police Stations got name of the accused incorrect, though his correct name is
Obileku Chukwuebuka. In the passport bearing no. A03822853 on page no. 03
there is a stamp with previous travelled passport number which is provided as
A00484926. As per report (Ex. DW-2/A) brought by official from FRRO
examined as DW-2, details qua passport no. A03822853 are not available with
their office which means no VISA was never issued to holder of that passport.
Further, in the report Ex. DW-2/A it is mentioned that passport no. A00484926
was in the name of Obileku Chukwuebuka who had arrived in India on
04.07.2012 and departed from India on 25.07.2012 and thereafter never applied
for any VISA service.
88. Thus, following facts have been established on record :-
(i) Since FRRO has no details available qua passport no. A03822853,
it can be safely held that no VISA was issued to passport no. A03822853 which
is claimed by the accused to be his original passport (the report is Ex. DW-2/A).
(ii) As per FRRO, passport no. A00484926 (which is the old number of
passport bearing no. A03822853) was issued in the name of Obileku
Chukwuebuka who had arrived in India on 04.07.2012 and departed from India
on 25.07.2012 and thereafter never applied for any VISA service. Thus, if real
name of the accused is Obileku Chukwuebuka, then he had left India on
25.07.2012 and never returned (the report is Ex. DW-2/A).
(iii) The passport (bearing no. A05358481) which was recovered from
the accused by the police officials of P.S. Anand Vihar Railway Station, has not
even claimed by accused to be his own. As per report of Intelligence Bureau Ex.
DLSH010068362019 Page 54 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
PW-14/E and report of High Commission of Federal Republic of Nigeria, it has
been established that passport bearing no. A05358481 has been tampered with
and is already a cancelled passport. Further, VISA No. VJ5874548 is not
showing any departure entry and was expired on 15.01.2015. Further, VISA No.
VK9950039 was not issued to any person.
89. Thus, it has been established on record that at the time of his
apprehension, accused had provided forged passport and VISAs to the police.
Thus, he is liable to be punished for commission of offences of forgery and
using forged documents. However, accused has not been charged with any such
offence. Hence, he cannot be convicted at this stage for the said offences.
Similarly, accused was not simply overstaying in India, rather he
was using forged passport and VISAs to roam around in India, while being on
bail in another case under NDPS Act and Section 14 of the Foreigners Act, thus
he is liable to be punished for commission of offence U/s 14A of the Foreigners
Act. However, accused has not been charged with that offence either. The said
offence is graver to the offence punishable U/s 14 of the Foreigners Act, hence
at this stage he cannot be convicted for that offence either. However, there is
ample evidence on record to punish the accused for the offence punishable U/s
14 of the Foreigners Act qua which charge has been framed against him.
90. It is contended on behalf of the accused that accused cannot be
convicted for commission of offence punishable U/s 14 of the Foreigners Act,
as he has already facing trial in FIR No. 31/15, P.S. Crime Branch, for
commission of offence U/s 14 of the Foreigners Act committed on 12.03.2015
DLSH010068362019 Page 55 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
qua which charge was framed on 04.08.2015, while the said case was pending
trial, accused was granted bail. Thereafter, on 21.08.2019, he was implicated in
the present case wherein he is again charged for commission of punishable U/s
Section 14 of the Foreigners Act. It is contended that if accused is convicted for
the offence punishable U/s 14 of the Foreigners Act in the present case, that
would amount to double jeopardy.
91. The law regarding double jeopardy as applicable in India in
contained in Article 20(2) of the Indian Constitution as well as Section 300
Cr.P.C. The relevant provisions are reproduced hereinafter :-
Article 20(2) of the Indian Constitution
20(2). No person shall be prosecuted and punished for the same offence more
than once.
Section 300 Cr.P.C.
300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again for the same offence, nor
on the same facts for any other offence for which a different charge from the one
made against him might have been made under sub-section (1) of Section 221, or
for which he might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with
the consent of the State Government, for any distinct offence for which a separate
charge might have been made against him at the former trial under sub-section (1)
of section 220.
(3) A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence from
that of which he was convicted, may be afterwards tried for such last-mentioned
offence, if the consequences had not happened or were not known to the Court to
DLSH010068362019 Page 56 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Acthave happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and
tried for, any other offence constituted by the same acts which he may have
committed if the Court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same
offence except with the consent of the court by which he was discharged or of any
other court to which the first-mentioned court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General
Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation : The dismissal of a complaint, or the discharge of the accused, is not
an acquittal for the purpose of this section.
92. From perusal of Section 300 Cr.P.C., it is apparent that the same
applies only when the other trial has been concluded either in acquittal or
conviction or discharge U/s 258 Cr.P.C. Section 300 Cr.P.C. has no application
when the other (previous trial) is still pending. Similarly, Article 20(2) of the
Constituion of India also provides protection when the person has been
punished in the previous/ other trial for the same offence, reliance in this regard
is placed on the case titled as S.A.Venkataraman Vs. The Union of India &
Anr., 1954 AIR 375 wherein Hon’ble Supreme Court of India held that in order
to invoke the protection of clause (2) of Article 20 of the Constitution, there
must have been both prosecution and punishment in respect of the same
offence. The words “prosecuted and punished” are to be taken not distributively
so as to mean prosecuted or punished. Both the factors must coexist in order
DLSH010068362019 Page 57 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
that the operation of the clause may be attracted.
93. Since the trial in previous FIR No. 31/2015, P.S. Crime Branch,
U/s 21 NDPS Act & 14 Foreigners Act against the accused is still pending.
Hence, Section 300 Cr.P.C. or Article 20(2) of the Constitution of India cannot
be invoked in the present matter.
94. The contention of Ld. Defence Counsel that accused can remain in
India during pendency of the previous case as he is on bail in that case, is also
not tenable. The following are the relevant judgments on this aspect: –
(i) Hon’ble Karnataka High Court in Christian Chidieere Chukwu Vs.
The State of Karnataka by K.R. Puram Police Station, Bangalore and Anr.,
(2016) SCC OnLine Kar 439 dated 18th February, 2016, in a petition for bail of
a foreign national who had overstayed and had been accused of a crime under
Sections 376/506 IPC and in addition for overstay in India, Section 14 of the
Foreigners Act had been invoked. The Court noted that in these situations, if
bail is granted to persons who have violated the provisions of the Foreigners
Act, such persons cannot stay in India even for a day without valid passport and
visa, therefore, and an undertrial has to await the result of the trial in respect of
the case registered against him and after the conclusion of the criminal case,
steps have to be taken to deport such foreign national for staying beyond the
expiry of the visa. If there is a delay in conducting the trial, it would be as good
as allowing such foreign national to be in India even after the expiry of the visa
period.
DLSH010068362019 Page 58 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
(ii) In Rajesh Datta @ Raj Vs. The State & Anr., W.P.(C) 1565/2023
order dated 07th February, 2023, Hon’ble High Court in dealing with a petition
for issue of directions to the FRRO to grant an extension of stay visa till
pendency of the trial, directed that the petitioner would continue to apply to the
FRRO for an extension of the visa on a periodic basis, and such extension
applications after being duly verified shall be granted till the final adjudication
of the case. In this case, the order noted that the visa had already been extended,
but the Court gave the above directions for subsequent possibilities for
extension.
(iii) In James Pascal Vs. Narcotic Control Bureau, CRL.A. 548/2020
order dated 21st September, 2022, Hon’ble High Court of Delhi for suspension
of sentence of a foreign national in an NDPS case had directed as part of the
condition that the petitioner could apply for visa within a week from the date of
his release and his application would be considered in accordance with law and
relevant procedure.
(iv) In Michal Benson Nwaogu @ Chuna Benson Vs. State, Crl.A.
1063/2016, decided on 31.01.2024, Hon’ble High Court of Delhi in para no. 10
held that “in the instant case, the passport of the appellant has already been
renewed and stands deposited. Sentence of the appellant has been suspended
and orders for release on bail during pendency of appeal were passed on
07.02.2017. The appellant is constrained to stay back in India on account of
pending appellate proceedings. Considering the facts and circumstances of the
DLSH010068362019 Page 59 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
case, I am of the view that appellant should not be deprived of his liberty and
kept in Detention Centre despite suspension of sentence and grant of bail by this
Court, for want of extension of Visa of appropriate category. Accordingly, the
appellant shall file an appropriate application for consideration of the concerned
authorities for grant of extension of Visa during pendency of appeal, which
shall be disposed of in a time bound manner.”
95. During arguments, the undersigned has asked the accused, if after
bail in case FIR No. 31/2015, P.S. Crime Branch, he had applied for renewal of
VISA or any stay permit, the accused replied in negative. As per the reports of
FRRO, no VISA; extension of VISA or any other kind of stay order has been
granted to the holder of passport no. AO3822853 or passport no. A00484926 or
passport no. A05358481. Even the accused has not claimed either in his
statement U/s 313 Cr.P.C. or in cross-examination of the prosecution witnesses
that he has applied for any VISA or extension of VISA, after getting bail in FIR
No. 31/2015, P.S. Crime Branch.
Without applying for any such VISA or extension of VISA or stay
order, accused cannot remain in India even if granted bail in the earlier case as
grant of bail in the earlier case would not tantamount to renewal of VISA in the
light of the law laid down by above-stated judgments. Thus, it can be safely
held that on 21.08.2019 accused who is not a citizen of India was present at
Anand Vihar Railway Station (A.V.R.S.) without any valid passport or VISA.
Thus, he is hereby convicted for commission of offence punishable under
Section 14 Foreigners Act.
DLSH010068362019 Page 60 of 60
SC 499/2019
STATE Vs. EMMANUEL @ EMEKA
FIR No. 38/2019
(A.V.R.S.)
U/s 20(b)(ii)(B)/61/85 NDPS Act & 14 Foreigners Act
Conclusion
96. The prosecution failed to prove beyond reasonable doubt that due
proceedings were conducted at the time of recovery of contraband from
possession of accused. As the procedure adopted at the time of recovery
proceedings is doubtful, hence, the presumption under section 35 and 54 NDPS
Act, cannot be raised against the accused to the effect that he had the requisite
mental state (mens rea) to commit the offence of being in possession of narcotic
drug/ ganja without any authority or license to be in possession of the same.
Accordingly, accused Emmanuel @ Emeka (S/o Sh. Oluchukwu) @ Mike (S/o
Sh. Obinjekwe) @ Obileku Chukwuebuka, is acquitted for the offences
punishable under Section 20(b)(ii)(B)/61/85 of the NDPS Act.
Since offence U/s 14 of the Foreigners Act is duly proved against
accused, hence accused Emmanuel @ Emeka (S/o Sh. Oluchukwu) @ Mike
(S/o Sh. Obinjekwe) @ Obileku Chukwuebuka, is convicted for the offence
punishable under Section 14 of the Foreigners Act.
97. Copy of the judgment be supplied to accused free of cost. File be
consigned to Record Room.
Digitally
Announced in the open Court GAJENDER signed by
SINGH GAJENDER
on 08th August, 2025 NAGAR SINGH
NAGAR
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi