Delhi District Court
State vs Anil on 15 July, 2025
1
IN THE COURT OF PUNEET PAHWA
SPECIAL JUDGE (NDPS)/NORTH EAST DISTRICT
KARKARDOOMA COURTS DELHI
SESSIONS CASE NO. 212/2019
CNR No. DLNE01-002813-2019
STATE Versus ANIL
S/o Sh. Chhatar Singh
R/o H. No. B-155,
Raghubir Nagar, Delhi
FIR No. : 132/2019
PS. : Crime Branch
U/s. : 21 NDPS Act
Chargesheet Filed On : 19.07.2019
Judgment Reserved On : 27.05.2025
Judgment Announced On : 15.07.2025
Decision : Conviction
(U/s. 21(b) NDPS Act)
JUDGMENT:
1. In brief, case of the prosecution is that on
20.05.2019, one secret information was received at about 9:00
PM that two persons namely Anil and Pankaj, who used to bring
heroin from Bareilly, U.P. and used to supply in whole sale and
retail in Delhi would come at Khajuri Chowk in their Honda
WRV car No. DL-10CK-8881 to supply the heroin to someone
and if raid is conducted, they can be apprehended and heroin can
be recovered from them. The said information was reduced into
writing for the purpose of compliance of notice u/s. 42 of NDPS
Act. A raiding team was constituted consisting of SI Abdul
Barkat, Ct. Sunny Rathi, Ct. Sonu Tomar and HC Vivek Tomar.
2. At 1:55 AM, one Honda WRV car No.
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2DL-10CK-8881 was seen coming from the side of Shastri Park.
At about 2:00 AM, accused Anil S/o Chattar Singh was
apprehended at the pointing out of the secret informer. One black
colour polythene having some weight was found beneath the mat
of the driver seat of the said car. It was checked and found
containing a transparent polythene, which was found containing
matiyala colour powder. The substance i.e. matiyala colour
powder was checked by the field testing kit and it was found
positive for heroin. The transparent polythene containing heroin
was weighed on electronic weighing scale and total weight was
found to be 200 grams. Out of which, two samples of 5 grams
each were taken out. Same were converted into cloth parcels.
Form FSL was filled at the spot. The sealed parcels and form
FSL were taken into possession alongwith the car bearing no.
DL-10CK-8881. Notice u/s. 50 of NDPS Act was prepared and
same was given to the accused. Accused had written his refusal
on the carbon copy of the notice in his handwriting.
3. Accused Anil was brought to the office of Narcotic
Cell, where he was arrested and personally searched. His
disclosure statement was also recorded. Case property was
deposited in malkhana. Sample of the recovered contraband was
sent to FSL. Thereafter, on 23.05.2019, co-accused Zeeshan, who
was the source of the recovered contraband, was also arrested in
the present case.
4. After completion of the investigation, chargesheet
was filed against both the accused persons namely Anil and
Zeeshan u/s 21/29 of NDPS Act. Later on FSL result was also
placed on record.
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5. Vide detailed order dated 02.08.2019, accused
Zeeshan was discharged in the present case and charge u/s 21(b)
of NDPS Act was framed against accused Anil. Accused Anil
pleaded not guilty and claimed trial.
6. Prosecution examined as many as 13 witnesses to
prove the charge.
7. Statement of accused u/s 313 CrPC was recorded.
He denied all the incriminating circumstances put to him. He
stated that he was lifted from his house alongwith his son Pankaj
and the police officials had planted the contraband upon him and
forcibly obtained his signatures on various blank, semi written
and written documents on the condition for not making any
complaint. Nothing was recovered from his possession. Accused
also examined his son Pankaj as witness in his defence.
8. Insp. Brijpal Singh has been examined as PW-1. He
has deposed that on 20.05.2019 at about 9:30 pm, ASI Abdul
Barkat had produced secret informer before him at his office and
informed him about the secret information. After satisfying
himself with the contents of said secret information, he conveyed
the contents of aforesaid secret information to Sh. R. K. Ojha
ACP of Narcotic Cell, who had issued direction for conducting
the raid and to carry out the relevant proceedings and also
deposed that after perusing the compliance of Sec. 42 of NDPS
Act, he had forwarded the same to concerned ACP. Thereafter, as
per directions, ASI Abdul Barkat, after obtaining search warrant
from the concerned ACP, organized a raiding party consisting of
himself, HC Vivek Tomar, Ct. Sonu Tomar and Ct. Shani Rathi.
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9. He further deposed that on 21.05.2019 at about
11:35 am, ASI Sudhir Kumar had produced accused Anil Kumar
before him. He made necessary enquiry from the accused and
found his arrest to be justified and also found the recovery of
contraband item i.e. 200 gram heroin from the car of the accused
to be justified. On the same day, he had forwarded the report u/s
57 NDPS regarding seizure of aforesaid contraband item by ASI
Abdul Barkat and report u/s 57 NDPS Act regarding arrest of
aforesaid accused by IO/ASI Sudhir Kumar to the concerned
ACP and directed both the said reports to be sent to the office of
concerned ACP on the same day. He proved both the aforesaid
reports, as Ex.PW1/A & Ex.PW1/B respectively. He also proved
report u/s 42 of NDPS Act as Ex.PW1/C.
10. In his cross-examination by Ld. Counsel for the
accused, he deposed that ASI Abdul Barkat had not given him
the secret information on a separate piece of paper and admitted
that the report u/s 57 of NDPS Act and the information recorded
u/s 42 of NDPS Act are the official correspondences. He also
deposed that in the present case, his statement was recorded twice
by the IO. However, he did not remember about the fact that the
ASI Abdul Barkat had obtained the search authorization from the
then ACP. He also deposed that the search authorization letters
issued by the ACP, does not bear any serial numbers. As per his
knowledge, ACP office does not keep the copy of the search
authorization issued to the concerned investigation officer.
11. He admitted that DD No. 23 does not speak about
the search authorization obtained by ASI Abdul Barkat before
making the said DD entry and admitted that he was not the
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5member of raiding team and the enquiries made by him from sub-
ordinates, secret informer and the accused persons, were not
documented on any piece of paper by him. He also admitted that
there is no document made by him for his satisfaction as he was
satisfied from the oral enquiry done by him. He denied the
suggestion that nothing had happened in the manner as he had
deposed in his examination in chief, or that he was deposing
falsely at the behest of the Department and to cover up the legal
mandatory formalities of the NDPS Act, or that he had put his
signatures on various documents in a mechanical manner without
verifying the correctness of those documents.
12. (Retd. ASI) Jag Narayan has been examined as
PW-2. He has deposed that on 21.05.2019, Inspector Satender
Sangwan called him in his office alongwith register no. 19 and
handed over him three sealed cloth pullandas alongwith form
FSL and carbon copy of seizure memo. He made entry at serial
number 3367 in register no. 19 and proved the said entry, vide
Ex.PW2/A. He also deposed that on the same day, ASI Sudhir
Kumar deposited Honda WRY Car No. DL 10CK 8881
alongwith personal search articles of accused Anil. He made
entry at serial number 3368 in register no. 19 and proved the said
entry, vide Ex.PW2/B.
13. He further deposed that on 22.05.19, he handed over
one sealed cloth pullanda Mark A alongwith Form FSL to HC
Nityanand, vide RC No.366/21 for depositing the same at FSL
Rohini and after depositing the case property in the FSL, Rohini,
HC Nityanand brought back received copy of RC and
acknowledgment receipt and handed over the same to him. He
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6proved the copy of register no. 21 containing RC No. 366/21 and
acknowledgment receipt, vide Ex.PW2/C and Ex.PW2/D.
14. In his cross-examination by Ld. Counsel for the
accused, he deposed that the FSL form received on 21.05.2019
was not in the sealed condition in any separate envelope. He had
admitted that the entry no. 3368 in register no. 19 qua deposit of
vehicle, was not signed by the concerned official, who had
deposited the same and that the forwarding letter and the form
FSL are two different documents. He also admitted that
Ex.PW2/D does not mention about the FSL form received by
them. Even no marking or seals upon the pulanda was mentioned
in the said acknowledgment. He denied the suggestion that
nothing had happened in the manner as he had deposed in his
examination-in-chief, or that the entries made in register no. 19
and 21 are fabricated and manipulated to fortify the prosecution
case.
15. Smt. Kavita Goyal, Assistant Director (Chemistry),
FSL, has been examined as PW-3. She deposed that on
22.05.2019, one sealed cloth parcel was marked to her for
examination. On opening the said parcel, it was found containing
Ex. A i.e. brown coloured powdery material weight approx. 6.0
gram with polythene. She examined the sample and gave her
detailed report on 19.09.2019 and proved the same, vide
Ex.PW3/A.
16. ASI Satender has been examined as PW-4. He
deposed that on 21.05.2019 at about 06:48:00 hours, Ct. Sonu
Tomar had produced a rukka before him for registration of FIR
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7and on the basis of which, he had lodged KAIMY GD No. 002A
and proved the same as Ex.PW4/A. He also deposed that on the
basis of rukka, he had lodged FIR No. 132/2019 u/s 21/25 NDPS
Act through CCTNS Operator and proved the computerized copy
of the abovesaid FIR, as Ex.PW4/B. He made endorsement on
the rukka, vide Ex.PW4/C. He also proved the certificate U/s.
65B of Indian Evidence Act, as Ex.PW4/D and Bandagi DD No.
004A as Ex.PW4/E.
17. In his cross-examination by Ld. Counsel for the
accused, he admitted that the Ex.PW4/D did not bear the
signature, name and designation of the person, who had operated
the computer and deposed that he had never met the IO in respect
of the present case.
18. HC Vivek Tomar has been examined as PW-5. He
deposed that on 20.05.2019 at about 10:30 PM, ASI Abdul
Barkat had called him, Ct. Shani Rathi and Ct. Sonu Tomar in his
office and told about the secret information and deposed that ASI
Abdul Barkat had constituted a raiding party, consisting of
himself, Ct. Shani Rathi, Ct. Sonu. He was deputed as a driver of
a private car bearing No. DL2CAW7181 (i20). He also deposed
that after lodging the DD No. 2, he alongwith the secret informer
and other members of the raiding team left his office and reached
on the road going from Shastri Park towards Khajuri Chowk.
19. He further deposed that at about 1:55 AM, one grey
colour Honda Car bearing No. DL10CK8881 was found coming
from the side of Shastri Park. The secret informer identified the
person, who was on the driving seat as Anil. The abovesaid car
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8was stopped and the person who was found sitting on the driving
seat, on enquiry, revealed his name as Anil S/o Chhatar Singh
and thereafter, ASI Abdul Barkat had shown the search
authorization to Anil and the car was searched, on which, one
black colour polythene was found lying beneath the black colour
mat of the driving seat. The black colour polythene was opened,
which was found containing transparent polythene, which
contains muddy (matmaila) colour powder in it. The said powder
was checked on field testing kit, on which, it was found to be
heroin.
20. He further deposed that the transparent polythene
containing the heroin was weighed on the electronic weighing
scale and it was found to be 200 grams. Out of which, two
samples of 5 grams each were taken, which were given Mark A
and Mark B. The remaining 190 gram heroin was left in the same
transparent polythene which was given Mark C. Thereafter, Form
FSL was prepared. The sealed pulandas and Form FSL were
taken into possession. The Car No. DL10CK8881 alongwith it’s
key were also taken into possession. He deposed that thereafter,
ASI Abdul Barkat told the accused about his legal rights as well
as the meaning of ‘Magistrate or Gazetted Officer’, but, the
accused had refused to exercise his right for his search before the
Magistrate or Gazetted Officer. Thereafter, ASI Abdul Barkat
had served a notice u/s 50 NDPS Act upon the accused. The
accused had written his refusal on the carbon copy of the notice
and also signed upon it. Thereafter, ASI Abdul Barkat had
prepared rukka and handed over the same to Ct. Sonu Tomar
alongwith case property, form FSL, copy of seizure memo for
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9registration of FIR. He had correctly identified the accused Anil
in the court.
21. In his cross-examination by Ld. Counsel for the
accused, he deposed that ASI Abdul Barkat had not received the
secret information in his presence and the private car used in the
present case, bearing No. DL2CAW7181 belongs to him, but the
same was not registered in his name and the same is registered in
the name of his brother-in-law. He also deposed that at the
relevant date in the Narcotics Cell Crime Branch was having 2-4
teams headed by the different Inspectors and the drug testing kits
are available with all the teams individually. However, he denied
whether the Narcotics Cell Crime Branch was keeping any record
in respect of the drug testing kits and whether the drug testing
kits also have the expiry dates and whether the Narcotics Control
Bureau (NCB) is the Nodal Agency who provide the drug testing
kits to the Narcotics Cells in Delhi.
22. He further deposed that on 21.05.2019, he was
driving the private vehicle and ASI Abdul Barkat was sitting
beside him and rest of the three persons on the back seat. He
admitted that at around 2-3 AM, there were very few vehicles
moving on the road and that the roadways’ staff are available in
the premises of ISBT and deposed that ASI Abdul Barkat had not
made any attempt to call the roadways staff which were available
round the clock in the ISBT to become the witness to the
proceedings to be conducted by them and it took hardly 5
minutes after pointing out by the secret informer about the car in
question and the identification of driver to intercept the car. He
also deposed that the vehicle of the accused was identified within
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1020-25 minutes after their reaching at the spot. ASI Abdul Barkat
had not called anyone from the nearby residential colony to
become the witness of the proceedings to be initiated by them
and deposed that he had not observed how many copies of search
authorization were carried by ASI Abdul Barkat.
23. He did not remember if ASI Abdul Barkat had
obtained the signatures of accused Anil Kumar on the search
authorization and before the conduct of search of the car and
deposed that he had seen the secret informer prior to 20.05.2019
in his office. ASI Abdul Barkat had not prepared any document
in respect of the test for the contraband conducted through field
testing kit. He also deposed that they remained at the spot for
about 1 and ½ hours after apprehending the accused and he was
just standing outside the car till 1 and ½ hour and had not helped
in any manner in the proceedings conducted at the spot by ASI
Abdul Barkat and the documents were prepared in his presence,
but ASI Abdul Barkat had neither obtained his signatures on any
of the documents prepared at the spot nor at their office. He did
not remember how many copies of FSL Form were prepared by
ASI Abdul Barkat.
24. He further deposed that when the accused was
produced before the then ACP Sh. R.K. Ojha, all the team
members were present. ACP Sh. R.K. Ojha had not prepared any
document in respect of enquiry conducted by him with the
accused. The case property was also produced before the ACP,
but he had not put any endorsement on the same. He also deposed
that he had not put signatures on any documents which is on
record which would confirm that he was the member of the
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11raiding team or that all the proceedings related to the
apprehending, search and seizure were conducted in his presence.
25. ACP Satinder Sangwan has been examined as PW-6.
He deposed that on 21.05.2019 at about 6:50 AM, Ct. Sonu
Tomar of Narcotics Cell, Crime Branch, Old Kotwali, Daryaganj,
Delhi came in his office and produced three sealed pulandas
marked A, B and C, Form FSL and copy of seizure memo. Form
FSL was having the seal of ‘6BPS/NB DELHI’. He had
mentioned the details of FIR number on all the pulandas, copy of
seizure memo and Form FSL and also put his seal of ‘SS’ on all
the pulandas and Form FSL. He also deposed that he called ASI
Jagnarayan MHC(M) Crime Branch in his office alongwith
Register No. 19, to whom he had handed over the abovesaid
sealed pulandas, Form FSL and copy of seizure memo. He
proved the true computerized generated copy of GD No. 003A
made by him regarding the proceedings at about 7:30 AM, vide
Ex.PW6/A. He also proved the copy of entry made by ASI
Jagnarayan MHC(M) in Register No. 19, vide Ex.PW6/B. He
also identified his signature at point A on the cloth parcel A, B &
C whereon, he had mentioned the particulars of the present FIR.
26. In his cross-examination by Ld. Counsel for the
accused, he deposed that he had not prepared any inventory for
the seizure in compliance of Sec. 52A NDPS Act and Ct. Sonu
Tomar remained with him in his office for about 30-35 minutes
and deposed that the seal of ‘SS’ used in the present case was not
sent to the higher authorities for the official records. He admitted
that the seal of ‘SS’ was got prepared from the open market by
him. However, there was no official direction in this regard. He
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12denied the suggestion that nothing had happened in the manner as
he had deposed in his examination-in-chief, or that the entry,
endorsement and lodging of FIR are ante time, fabricated and
manipulated to show the necessary compliance under the law and
to fortify the prosecution’s story.
27. Sh. R. K. Ojha (retired ACP) has been examined as
PW-7. He has deposed that on 20.05.2019 at about 9:45 PM,
Insp. Brij Pal Singh had informed about a secret information that
Anil and Pankaj resident of Raghuveer Nagar would come to
deliver heroin after procuring it from Bareily U.P. to deliver the
same to someone at Pusta road between Shastri Park to Khajuri
near Power House between 2 AM to 3 AM in a car bearing No.
DL10CK8881 and he had directed Insp. Brij Pal Singh to get the
raid conducted. He also deposed that on the request of ASI Abdul
Barkat, he had issued an authorization to search the above-
mentioned car, vide Ex.PW7/A.
28. He further deposed that on 21.05.2019 at about 4
AM, ASI Abdul Barkat produced accused Anil Kumar before
him and thereafter, his personal search was conducted, but no
contraband was recovered from his possession. He proved the
non-recovery memo, vide Ex.PW7/B. He also deposed that on
21.05.2019, his Reader produced before him DD No. 23, dated
20.05.2019 duly prepared by ASI Abdul Barkat and forwarded by
Insp. Brij Pal Singh. He had gone through the same and he
proved his endorsement made on it as ‘Seen’, vide Ex.PW1/C.
29. He further deposed that on the same day, his Reader
had also produced special report u/s 57 NDPS Act prepared by
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13ASI Abdul Barkat regarding recovery of 200 gram heroin from
accused Anil Kumar duly forwarded by Insp. Brij Pal Singh. He
had gone through the same and proved his endorsement made as
‘Seen’, vide Ex.PW1/A. He also deposed that on the same day,
his Reader had also produced another special report u/s 57 NDPS
Act prepared by ASI Sudheer Kumar regarding arrest of accused
Anil and duly forwarded by Insp. Brij Pal Singh. He had gone
through the same and proved his endorsement made as ‘Seen’
vide Ex.PW1/B. He also correctly identified the accused Anil in
the court.
30. In his cross-examination by Ld. Counsel for the
accused, he admitted that ASI Abdul Barkat had not handed over
any secret information written on a separate paper to him and that
on the relevant date and time, a Govt. vehicle was issued to him
and for that, driver of the same vehicle maintained a log book for
the use of the said Govt. vehicle. He deposed that register is
maintained in the office of ACP as per the directions of the
Department for receiving or dispatching of the official
correspondences and that the information u/s 42 of NDPS Act
and the reports u/s 57 NDPS Act are the official correspondences.
He also admitted that the documents Ex.PW1/A, Ex.PW1/B,
Ex.PW1/C and Ex.PW1/D are not having any diary number
issued by the concerned officials for dispatching/forwarding to
the Reader to the ACP or directly to the ACP.
31. He also deposed that they were not having a booklet
of search authorization documents from which search
authorizations were to be issued. On 20.05.2019, he had only
received an oral secret information from Insp. Brij Pal. He
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14admitted that Ex.PW7/A had not mentioned about DD No. 23
and deposed that ASI Abdul Barkat had not made any request to
him to accompany them at the time of issuance of search
authorization. The word ‘Seen’ upon documents Ex.PW1/A,
Ex.PW1/B, Ex.PW1/C and Ex.PW1/D are written by him on the
said documents. He denied the suggestion that he had put his
signatures on the documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C
and Ex.PW1/D in the mechanical manner and without seeing the
contents of the documents.
32. He further deposed that as per the document
Ex.PW1/A, the recovery of the alleged contraband was not
effected from the personal possession of the accused Anil Kumar,
though the same was recorded that the said recovery was effected
from beneath the foot-mat of the driving seat of the car, which he
was driving and admitted that the alleged secret information was
in respect of two persons namely Anil Kumar and Pankaj Kumar,
but at the time of alleged recovery in the car only Anil Kumar
was present. He deposed that he had given the oral directions in
respect of other person. However, he admitted that his statement
Ex.PW7/DA is silent regarding the oral direction given qua the
other person.
33. He was specifically asked as to whether he had
issued any written authorization to constitute the raiding team
and conduct the raid or not at any point of time during
investigation or pre-investigation to which, he replied that the
said oral direction was reduced into writing vide DD No. 23. He
also deposed that no separate document was made at his end with
respect to the receiving of secret information, constituting of
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15raiding team, conducting of the raid, search and seizure and
admitted that the document Ex.PW7/B was prepared by ASI
Abdul Barkat. He denied the suggestion that he was deposing
falsely to fill the legal requirements and fortify the prosecution’s
concocted story, or that nothing had happened in the manner, as
he had deposed in his examination in chief, or that the accused
was falsely implicated in the present case and no recovery was
effected from his possession. He also admitted that the recovery
was not effected in his presence.
34. HC Shani Rathi has been examined as PW-8. He has
deposed on the similar lines, as deposed by HC Vivek Tomar
(PW-5). Apart from it, he proved the seizure memo of the sealed
pullandas and Form FSL, as Ex.PW8/A, seizure memo of car
bearing No. DL-10CK 8881, as Ex.PW8/B, carbon copy of notice
u/s. 50 NDPS Act, as Ex.PW8/C and refusal of the accused on
the carbon copy of the notice, as Ex.PW8/D. He also deposed that
during investigation, ASI Sudhir Kumar had arrested the accused
Anil. He proved the arrest memo of accused Anil, as Ex.PW8/E,
personal search memo, as Ex.PW8/F and the disclosure statement
of accused Anil, as Ex.PW8/G. He also correctly identified the
accused Anil as well as the case properties in the court.
35. He was cross-examined by Ld. Counsel for the
accused at length. In his cross-examination, he deposed that on
20.05.2019, ASI Abdul Barkat had not shown the said secret
information separately recorded on a piece of paper in the office,
however, he had shown them the secret informer. He had not
seen the secret informer prior to 20.05.2019 in his office. ASI
Abdul Barkat had not shown any document pertaining to the
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16authenticity, if any, of the secret information received by him or
he had conducted any recce for the confirmation/verification
upon the information received. In the office of Narcotics Cell,
record was maintained for the electronic weighing scale only,
not for the drug testing kit or the official seal.
36. He admitted that the road going towards Shastri Park
on Khajuri Road was having the traffic in the day, however, in
the night, only normal traffic was there and that there are
residential houses as well as commercial establishments on the
opposite side of the spot. He also deposed that the search
authorization was a single paper and ASI Abdul Barkat had not
obtained the signature of accused Anil on it. He had not put his
signature on search authorization as a witness. He had remained
at the spot for about 2 hours and during that period, ASI Abdul
Barkat had prepared the seizure memo of the contraband, seizure
memo of the vehicle, notice u/s 50 of the NDPS Act.
37. He further deposed that Ct. Sonu Tomar and HC Vivek
Tomar had caught hold of the accused during the proceedings
conducted at the spot. He admitted that the secret information was
pertaining to two persons and only accused Anil was apprehended
in the car and to locate the second person, they went to Bareilly.
The alleged recovered contraband was tested in his presence
through drug testing kit and during the process, purple colour came
out of the contraband which was tested and no separate document
was prepared by ASI Abdul Barkat in respect of testing of the
contraband.
38. He further deposed that ASI Abdul Barkat had told the
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17meaning of Magistrate or Gazetted Officer as ‘hamare ACP, SDM
sahab, Judge sahab, and jo bharat sarkar ke Gazette me jinko
Rajpatrit adhikari ka darja prapt hai’ and the said fact was not
reduced into writing on any piece of paper. The disclosure
statement of accused was written by IO and obtained the signature
of the accused on the same. He had signed on the seizure memos
and notice u/s 50 of the NDPS Act at the spot where it was
prepared. Other documents were prepared in the office and he had
signed upon it. He denied the suggestion that nothing had happened
in the manner as he had deposed in his examination in chief, or that
he put his signatures on the documents as a witness at the directions
of the IO and had not gone through the contents of those
documents, or that the contraband was planted upon the accused.
39. HC Sonu Tomar has been examined as PW-9. He
has deposed on the similar lines, as deposed by HC Vivek Tomar
(PW-5) and HC Shani Rathi (PW-7). He correctly identified the
accused Anil as well as the case properties in the court.
40. He was cross-examined by Ld. Counsel for the
accused at length. In his cross-examination, he deposed that the
secret information was not revealed by the informer to ASI Abdul
Barkat in his presence. ASI Abdul Barkat had not shown the
secret information in writing on a piece of paper during the
briefing about the secret information received by him to them. It
took about 10-15 minutes in the briefing narrated by ASI Abdul
Barkat. They left their office at around 1:00 AM on 21.05.2019
for the raid. He had not seen the secret informer in their office
prior to 20.05.2019. He admitted that near the spot, residential
houses were situated at the distance of around 100-125 meters.
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ASI Abdul Barkat had not made any effort to call the residents of
those houses to become the witness of the proceedings to be
initiated.
41. He further deposed that on the search authorization,
he had not put his signature as a witness to it and no other raiding
team member also put the signature on the same. He alongwith
ASI Abdul Barkat were present and search authorization was
shown by ASI Abdul Barkat to Anil, while he was sitting on the
driver seat of the said car and thereafter, ASI Abdul Barkat called
him out of the car. He remained at the spot for about two hours,
during that period, he had only put his signature as a witness on
three documents i.e. notice u/s. 50 NDPS Act, seizure memo of
heroin and seizure memo of the car. ASI Abdul Barkat had filled
the form FSL, when he had conducted the test of the contraband
from the drug testing kit. ASI Abdul Barkat had not prepared
any document in respect of the test conducted by him through
drug testing kit.
42. He further deposed that the FSL form which was
filled in his presence was a single page having back to back
printing. ASI Abdul Barkat had informed the accused about his
right as to whether he wanted to be searched in the presence of
the nearest Magistrate or Gazetted Officer and that fact was also
mentioned in the notice u/s. 50 of NDPS Act. He had gone
through the contents of the notice u/s. 50 NDPS Act before
putting his signature as a witness to it. After going through the
notice Ex.PW8/C, he confirmed that the word ‘nearest’ is not
mentioned before Magistrate or Gazetted Officer. He denied the
suggestion that the case properties were kept at PP Nehru Place,
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19not at PS Crime Branch, Pushp Vihar. He remained present in the
office of SHO Crime Branch during the period, when the entry in
register no. 19 were made by the MHC(M) and the SHO had
signed against the said entry in register no. 19.
43. He admitted that the secret information was for two
persons, but, no attempts were made in Delhi to trace the other
person during the period and denied the suggestion that nothing
had happened in the manner as he had deposed in his
examination-in-chief, or that nothing incriminating was
recovered from the possession of the accused and the present
alleged recovery was planted upon him, or that signatures of the
accused were obtained on various blank, semi written and written
documents forcibly without disclosing their contents and
consequences.
44. SI Sudhir Kumar has been examined as PW-10. He
deposed that on 21.05.2019, after registration of the case, further
investigation was assigned to him. Thereafter, he made enquiry
from ASI Abdul Barkat about the facts of the case and ASI
Abdul Barkat had handed over the custody of accused Anil and
documents prepared to him. He also deposed that he had
interrogated the accused Anil and arrested him, vide arrest memo
Ex.PW8/E. He proved the personal search memo of the accused,
as Ex.PW8/F and after interrogation, he had recorded the
disclosure statement of accused, vide Ex.PW8/G.
45. He further deposed that he had prepared the report
under Section 57 of NDPS Act, vide Ex.PW1/B in respect of
accused Anil in the present case and same was forwarded by the
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20Inspector to the ACP concerned. Thereafter, he alongwith ASI
Abdul Barkat reached at the spot, where he had prepared the site
plan at the instance of Insp. Brij Pal Singh, vide Ex.PW10/A.
Thereafter, the personal search belongings of the accused and the
car were deposited in the Malkhana of PS Crime Branch. He also
deposed that on 22.05.2019, the samples of the present case were
got deposited at FSL, Rohini. He also correctly identified the
accused Anil as well as the case properties in the court.
46. He was cross-examined by Ld. Counsel for the
accused at length. In his cross-examination, he admitted that he
had recorded the disclosure statement of accused Anil and
obtained his signature thereon. He denied the suggestion that no
disclosure statement was made by the accused Anil and that in
the office of Narcotics Cell, they were maintaining a dak register
for dispatching and receiving of the official correspondence. He
also admitted that the report u/s 57 NDPS Act was an official
intimation. He had not made the entry in the dak register while
sending the report u/s 57 NDPS Act to the senior officials. He
denied the suggestion that the report u/s 57 NDPS Act is a false,
fabricated and manipulated document to fulfill the legal lacuna or
that that they had taken the signatures of the accused on various
blank, semi-written and written documents without disclosing its
contents and consequences, forcibly.
47. ASI Nityanand has been examined as PW-11. He
deposed that on 22.05.2019, ASI Sudhir Kumar had directed him
to collect the sample of the present case alongwith documents
from the MHC(M) of PS Crime Branch, Pushp Vihar, New
Delhi. Vide DD No. 4, he had left his office for PS Crime
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21Branch, Pushp Vihar, New Delhi, where, ASI Jag Narayan,
MHC(M) had handed over to him one sealed parcel Mark A,
form FSL, copy of seizure memo, copy of FIR to be deposited at
FSL, Rohini, Delhi, vide RC No. 366/21 dated 22.05.2019.
Thereafter, he had left the malkhana and reached at FSL, Rohini,
where he got deposited the abovesaid sealed parcels and the
documents to the concerned official and thereafter, he returned to
PS Crime Branch, Pushp Vihar, New Delhi and handed over the
copy of RC and acknowledgment of FSL to ASI Jag Narayan.
48. He further deposed that on 24.05.2019, at about 7:30
AM, he had handed over the photocopy of RC and
acknowledgment to ASI Sudhir Kumar. He proved the copy of
RC No. 366/21, as Ex.PW11/A and copy of acknowledgment of
FSL as Ex.PW11/B.
49. He was cross-examined by Ld. Counsel for the
accused. In his cross-examination, he deposed that the SHO
Crime Branch had not given any written or oral direction for
collecting the sample parcel from the malkhana of PS Crime
Branch. ASI Sudhir had orally directed to him, but, no direction
in writing was given by him for collecting the sample parcel from
the malkhana of PS Crime Branch. He had not put his signature
in register no. 19 in token of receiving the sample. He admitted
that Ex.PW11/B does not speak about the marking upon the cloth
parcel (sample), or the seal impressions upon it and that the
document Ex.PW11/B does not speak about the document
received by the FSL. He denied the suggestion that nothing had
happened in the manner as he had deposed in his examination-
in-chief, or that the document mentioned in his examination-in-
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chief is ante dated and ante timed, false, fabricated and
manipulated to fortify the concocted story of the prosecution.
50. SI Abdul Barkat has been examined as PW-12. He
deposed that on 20.05.2019, when he was present at his office of
Narcotics Cell, Crime Branch, Old Kotwali, Daryaganj, Delhi, at
about 9:00 PM, one secret informer came at his office and
informed him about the secret information and after satisfying
himself, at about 9:30 PM, he had produced the secret informer
before Insp. Brij Pal Singh in his office. Insp. Brij Pal Singh had
verified about the secret information from the secret informer and
after satisfying himself, he informed about the said secret
information to Sh. R. K. Ojha, ACP Narcotics in his office. ACP
had directed to Insp. Brij Pal Singh for taking necessary action as
per law.
51. He further deposed that on the directions of Insp.
Brij Pal Singh, he had lodged DD No. 23 regarding the secret
information for compliance of Sec. 42 of NDPS Act. He had put
up the copy of DD No. 23 before Insp. Brij Pal Singh. He proved
the copy of DD No. 23 as Ex.PW1/C. He also proved the search
authorization obtained from Sh. R. K. Ojha, ACP Narcotics for
searching the vehicles in the night hours, vide Ex.PW7/A.
Thereafter, as per direction of Insp. Brij Pal Singh, he had
constituted a raiding party consisting of himself, Ct. Sunny Rathi,
Ct. Sonu Tomar and HC Vivek Tomar and after lodging DD No.
2, regarding their departure from their office for the spot, they
alongwith the secret informer had left their office in a private car.
He proved the copy of DD No.2 as Ex.PW12/A.
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23
52. He further deposed that after reaching at the spot, at
about 1:55 AM, on the pointing out of the secret informer, one
grey colour Honda car bearing No. DL-10CK-8881 was stopped
and the person, who was sitting at driver seat was identified as
Anil, thereafter, the said person was apprehended and on enquiry,
accused revealed his name as Anil S/o Chattar Singh. Thereafter,
he had shown the search authorization to Anil. He proved the
search authorization as Ex.PW7/A. Thereafter, the said car was
checked, on which, one black colour polythene having weight
was found beneath the mat of the driver seat of the said car. The
black colour polythene was opened and it was checked, which
was found containing a transparent polythene, it was also found
containing matiyala colour powder. The matiyala colour powder
was checked by the field testing kit and it was found positive for
heroin. Samples were taken out and same were converted into
cloth parcels and given Mark A and Mark B. The remaining
heroin about 190 grams was also converted into cloth parcel and
it was given Mark C.
53. He further deposed that form FSL was also filled at
the spot. He proved the seizure memo of the sealed parcels and
form FSL as Ex.PW8/A and seizure memo of the car bearing no.
DL-10CK-8881 as Ex.PW8/B. Thereafter, he had prepared notice
u/s. 50 of NDPS Act and the original notice u/s. 50 NDPS Act
was given to the accused. The accused had refused to exercise his
legal right as above and written his refusal on the carbon copy of
the notice. He proved the carbon copy of notice u/s. 50 NDPS
Act as Ex.PW8/C and the refusal of the accused on the carbon
copy of the notice as Ex.PW8/D. Thereafter, at about 4:00 AM,
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24after reaching at their office, he had produced accused Anil
Kumar before Sh. R. K. Ojha, ACP Narcotics Cell in his office.
As per the direction of the ACP, accused was formally searched,
but, nothing incriminating was recovered from his formal search.
He proved the non-recovery memo as Ex.PW7/B. He also proved
his endorsement on the back side of the search authorization, as
Ex.PW12/B.
54. He further deposed that thereafter, he had prepared the
rukka, vide Ex.PW12/C and handed over the same alongwith the
abovesaid sealed parcels Mark A, B, C, FSL Form and carbon copy
of seizure memo to Ct. Sonu Tomar and directed him to produce
the case property and the documents before the SHO of PS Crime
Branch for the compliance of Sec. 55 NDPS Act and to hand over
the rukka to Duty Officer for registration of FIR. He also proved
the arrest memo Ex.PW8/E, personal search memo Ex.PW8/F,
disclosure statement Ex.PW8/G of the accused. Thereafter, he
alongwith ASI Sudhir Kumar reached at the spot, where ASI
Sudhir Kumar had prepared site plan of the spot at his instance. He
proved the site plan as Ex.PW10/A. Thereafter, they returned to
their office. He had also proved special report u/s 57 of NDPS Act
regarding the seizure of 200 grams heroin from the car of accused
Anil, vide Ex.PW1/A. He corrected identified the accused as well
as the case properties in the court.
55. He was cross-examined by Ld. Counsel for the
accused. In his cross-examination, he deposed that the secret
informer of the present case came to him for the first time with a
secret information. He admitted that he had not prepared any
document in respect of the enquiry made by him from the secret
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25informer regarding the secret information and he had not reduced
into writing the secret information received by him on a separate
piece of paper from the informer. However, he had made DD No.
23 (Ex.PW1/C) in respect of secret information. He also deposed
that the Dak register is maintained in the office of ACP regarding
the receiving and dispatching the official correspondence
/documents including the report u/s 57 NDPS Act. He had
obtained the search authorization from the ACP concerned
personally. He admitted that no document or entry was made in
any register, wherein the issuance of the search authorization was
mentioned or for the records.
56. He further deposed that the seal used in the present
case having initials 6B PS/NB DELHI was issued to him
officially and deposed that as far as to his knowledge, no separate
record are maintained for the uses of the official seals issued to
the respective IOs in their cases. He had not made any attempt to
call the government officials of respective roadways staff to join
the raiding team for the raid to be conducted, nor he had made
any request to the ACP during 9 PM to 1 AM during the
intervening night of 20.05.2019/21.05.2019 to join the
proceedings to be initiated at the spot. He admitted that in the
notice u/s 50 of the NDPS Act, he had not mentioned that the
accused was having the legal right to be searched in the presence
of nearest Magistrate or Gazetted Officer and that the residential
houses are situated near the spot are at a distance of 200-300
metres and he had not made any request or attempt to call the
persons from those houses before the recovery or after the
recovery to join the proceedings as a witness to it.
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57. He further deposed that he had gone through the
standing order 1/88 and 1/89 laid down by the Govt. of India and in
the present case, he had substantially complied with the same. He
had not sealed the FSL form in any separate envelope as prescribed
under Standing Order 1/88. He admitted that in the present case, he
had conducted the test of the substance, but he had not prepared
any separate document with respect to it or preserved the residue
which was used for testing during the test. He answered to the
question that as the accused refused to be searched in the presence
of Magistrate or Gazetted Officer, that is why, they took the
accused to their office and accused was produced before the then
ACP for his formal search and his formal search was conducted.
For that reason, he had not sent the rukka from the spot. He
admitted that when the accused was formally searched before the
then ACP, there was no recovery of any incriminating article from
the possession of accused. He denied the suggestion that Pankaj son
of Anil and accused Anil were lifted from their house and roped in
the present false, fabricated and manipulated case, or that the
alleged contraband of the present case was planted upon the
accused, or that they had obtained the signatures of the accused
forcibly on various blank/semi-written and written documents,
without disclosing their contents and consequences, or that nothing
had happened in the manner, as he had deposed in his examination
in chief, or that the present case is false, fabricated and manipulated
on the concocted story to implicate the present accused with the
ulterior motives.
58. SI Mahesh Chand has been examined as PW-13. He
deposed that on 20.01.2017, he had issued a seal of 6B PS/NB
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27DELHI to ASI Abdul Barkat and in this respect, he had made entry
in the register of OFFICIAL SEAL ISSUING REG. N&CP 2017 at
serial no. 6 in this regard. He proved the copy of register having the
said entry as Ex.PW13/A. He also deposed that on 01.01.2020, he
had made endorsement in the register of OFFICIAL SEAL
ISSUING REG. N&CP 2017 against serial no. 6 regarding
returning of the seal to him by ASI Abdul Barkat and he had
deposited the same in Malkhana. He proved the copy of register
having the said entry as Ex.PW13/A.
59. He further deposed that on 21.05.2019, he had issued
electronic weighing machine to ASI Abdul Barkat and in this
respect, he had made entry in the register of NARCOTICS CELL,
CRIME BRANCH, ELECTRONIC WEIGHING MACHINE
ISSUING REGISTER FOR 2019 at serial no. 32. He proved the
copy of register having the said entry as Ex.PW13/B. He also
made endorsement in the register of NARCOTICS CELL, CRIME
BRANCH, ELCTRONIC WEIGHING MACHINE ISSUING
REGISTER FOR 2019 against serial no. 32 regarding returning of
the electronic weighing machine to him by ASI Abdul Barkat. He
proved the copy of register having entry as Ex.PW13/A.
60. He further deposed that on 05.12.2018, he had issued
three field testing kit to Insp. Brij Pal Singh and in this respect, he
had made entry in the register of FIELD TESTING KIT
REGISTER 2018 N&CP at serial no. 1. He proved the copy of
register having the said entry as Ex.PW13/C.
61. He was cross-examined by Ld. Counsel for the
accused. In his cross-examination, he deposed that during his
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28tenure as MHC(M) at Narcotics Cell, Crime Branch, Old Kotwali,
Daryaganj, Delhi, he had not seen any circular/order from the
office of Commissioner of Police or from the office of DCP Crime
Branch or from the office of DCP concerned District in respect of
maintaining registers i.e. OFFICIAL SEAL ISSUING REG. N&CP
2017, NARCOTICS CELL, CRIME BRANCH, ELECTRINIC
WEIGHING MACHINE ISSUING REGISTER FOR 2019 and
FIELD TESTING KIT REGISTER 2018 N&CP. He also deposed
that the procedure of maintaining the register in respect of
maintaining the record of official seals, was till 2020. Thereafter,
the IOs started using their own seals. He admitted that he had not
maintained any separate record pertaining to official seals
impressions and that he had not maintained any record pertaining to
description of electronic weighing machine and that he had not
maintained any record pertaining to the working condition or repair
or regular maintenance of the electronic weighing machine.
62. He further deposed that he had not got any certificate
of working condition from the concerned agency in respect of
electronic weighing machines during his tenure of 13 years as
MHC(M). He denied the suggestion that the electronic weighing
machines were not properly working that is why, the same were not
got certified from the concerned weighing and measurement
department, or that for the same reason in the entries made in the
concerned registers does not have any column mentioning for
proper working conditions of the electronic weighing machines. He
admitted that NCB is the Nodal Agency, who provides the field
drug testing kits to their office on their requisitions and that he had
not maintained any separate record in respect of the Batch number,
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29manufacturing date and the expiry date of the field drug testing kit
received in their office from the NCB.
63. He further deposed that the abovementioned registers
were never checked by the then ACPs and counter signed and seen
by them. He admitted that when the field drug testing kits are
received in the office of Narcotics Cell, Crime Branch, Old
Kotwali, Daryaganj, Delhi from NCB, that contains a letter
/document from the NCB office. He had not maintained any
separate record on behalf of Narcotics Cell, Crime Branch, Old
Kotwali, Daryaganj, Delhi as MHC(M) for the requisitions sent to
NCB for providing field drug testing kits or the documents sent by
NCB alongwith field drug testing kits to the Narcotics Cell, Crime
Branch, Old Kotwali, Daryaganj, Delhi. He also deposed that the
FIELD TESTING KIT REGISTER 2018 N&CP are maintained on
the yearly basis. During the tenure of 2018, Insp. Brij Pal Singh
received the field drug testing kit firstly on 13.03.2018, thereafter
on 05.12.2018. He denied the suggestion that the registers, which
he had produced in the court, are fabricated, manipulated as per the
convenience of the department or that, the same were prepared to
eye wash the procedure. After that prosecution evidence was
closed.
64. All the incriminating circumstances appearing in
evidence against accused Anil were put to him as required u/s
313 CrPC. Accused stated that on 21.05.2019, in the evening, he
alongwith his son Pankaj were lifted from their residence on the
pretext of some enquiries to be made. Later on, police officials
planted the contraband of the present case upon the accused and
left his son on the condition that he would put his signatures on
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30their documents and would not make any complaint to it. The
documents produced in the present case are false, fabricated and
manipulated, prepared by the police officials in their office itself
to fortify their present false, fabricated and manipulated case. He
had nothing to do with the alleged offence and no recovery was
effected from his possession or at his instance. The police
officials forcibly/under threat obtained his signatures on various
blank, semi written and written documents without disclosing
their contents and consequences. The police officials also
manipulated the police records and concealed the material which
helps the accused to prove his innocence. It is a false and
fabricated case that is why, the police officials did not make any
efforts to join a public person to be independent witness to prove
the anomalies done by the police officials. He is innocent.
65. Accused had examined Sh. Pankaj in his defence.
Sh. Pankaj has been examined as DW-1. He is son of accused
Anil. He proved the copy of his Aadhar Card as Ex.DW1/A and
deposed that on 20.05.2019 at around 5:30 – 6:00 PM, he
alongwith his family members were sitting in the house, some
police officials in civil clothes came there and told to accompany
them for certain enquiries and he alongwith his father (accused
Anil) were taken to Daryagang office and they were made to sit
separately. He also deposed that police official beat him and got
his signatures on some blank paper and he was left at around 1:30
at night with instructions not to disclose the same to anyone or
made any complaint against them. They also told him that they
would release his father too in the morning. Later on, he came to
know that his father was implicated in the present case. He also
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31deposed that no recovery was effected from him or his father and
his father has been falsely implicated in the present case.
66. He was cross-examined by Ld. Addl. PP for the
State, wherein, he deposed that he was asked by his father to
depose in the court. He did not remember the name of those
police officials who had come at his house in civil clothes and he
had not given any complaint against the said police officials. He
denied the suggestion that on 20.05.2019 at around 5:30/6:00
PM, no police officials in civil clothes came at their residence, or
that on 21.05.2019 at about 2 AM at Pusta Road near Power
House on road from Shastri Park to Khajuri Khas, accused Anil
was apprehended and 200 grams of Heroin was recovered from
his possession, or that he has appeared as a defence witness, as he
is son of accused Anil and is an interested witness to save his
father.
67. I have heard Sh. F. M. Ansari, learned Addl. PP for
the State and Sh. Kamal J. S. Mann, learned Counsel for the
accused.
68. Sh. F. M. Ansari, Ld. Additional PP for the State
submitted that prosecution has proved the recovery of contraband
from the accused. He submitted that all the compliances under
the NDPS Act were done in the present case as the search
authorization was obtained as per law and senior officials were
duly informed and notified regarding the secret information and
recovery of contrabands and submitted that in the present case,
there is enough evidence on record and the charge has been duly
proved beyond reasonable doubt, therefore, accused Anil is liableSC No. 212/2019 State Vs. Anil
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32to be convicted in the present case. Ld. Addl. PP for the State has
relied upon the two judgments of Hon’ble Supreme Court of
India, Bharat Aambale v. The State of Chhattisgarh, Criminal
Appeal No. 250 of 2025 and Rakesh Kumar Raghuvanshi v. The
State of Madhya Pradesh, Criminal Appeal No. 1953 of 2014.
69. Ld. Addl. PP for the State further submitted that all
the compliances were duly proved by examining all the witnesses
and it has already been proved that the accused was found in
possession of 200 grams Heroin. He is liable to be convicted as
his guilt has been proved beyond reasonable doubts.
70. Ld. Counsel for accused submitted to the contrary.
He submitted that in the present case, provision of Sec. 42(2)
NDPS Act has not been complied with and no efforts were made
to join any independent public person as witness in the present
case and submitted that there is no record of obtaining search
authorization and the search authorization is manipulated and
also submitted that the ACP, who had issued the search
authorization, did not know, who had taken the print out of the
search authorization. He has also submitted that accused was
apprehended at 3:00 AM, but he was arrested in the present case
at 11:00 AM and there is no explanation regarding the
proceedings conducted during the said period and submitted that
the log book of the vehicle of the ACP was not properly
maintained.
71. It is pertinent to mention here that an application u/s.
94 of BNSS was moved on behalf of the accused for summoning
of log book of the vehicle used by Sh. R. K. Ojha, the then ACP
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33Narcotics Cell for the period of 19.05.2019 to 22.05.2019. The
said application was allowed on 25.03.2025. In compliance
thereof, the said record was furnished by the concerned official,
photocopy of which was taken on judicial file. Relying upon the
said record, it has been argued by Ld. Counsel for the accused
that the said record shows that the then ACP was not even
present in the office on the intervening night of 20.05.2019 &
21.05.2019, therefore, the issuance of the search authorization by
the then ACP and all other proceedings conducted in his presence
becomes doubtful.
72. Ld. Counsel for the accused further submitted that
the vehicle in question was not registered in the name of the
accused. Even, there is no evidence on record with regard to the
ownership of the car in question and submitted that the owner of
the said car was to be made a witness or an accused in the present
case and also submitted that there is no evidence on record which
shows that whether the accused was driving the said car in
question on the alleged date and time and submitted that there is
non-compliance of provision of Sec. 52A NDPS Act.
73. Ld. Counsel for the accused argued that accused has
been falsely implicated in the present case, as nothing was
recovered from him. It has been argued that IO failed to comply
with the necessary compliances under the NDPS Act and he also
failed to comply with the guidelines as envisaged under Standing
Instruction 1/88. It has been argued that when the secret
information was received, instead of reducing into writing, the
secret informer was produced before Inspector/ ACP concerned
and thereafter, DD No. 23 was registered, which does not amountSC No. 212/2019 State Vs. Anil
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34to necessary compliance of Sec. 42 of NDPS Act. On this aspect,
he has relied upon the judgment of ‘Peeraswami v. State, 2007
(2) JCC (Narcotics) 80’.
74. Ld. Counsel for the accused further argued that as
per the procedure laid down in Standing Instruction 1/88, test
memos are to be prepared, which is to be put into an envelope
and should be sealed. The FSL form was also required to be
sealed, whereas, IO had failed to comply with the same. It has
further been argued that Sec. 52-A NDPS has not been complied
with, as the alleged recovered contraband was never produced
before the Magistrate and no inventory was prepared by the
Inspector before whom, the accused as well as the contraband
was produced. It has further been argued that IO also failed to
comply with Sec. 50 NDPS Act, as notice which was served upon
the accused was defective, as no option was given to him that his
search could be done before the nearest Gazetted
Officer/Magistrate. It has further been argued that IO has also
failed to comply with Sec. 57 NDPS Act. As per record, time of
apprehension and time of arrest of the accused are different and
before his arrest, the accused was detained in the office of
Narcotic Cell for about 9 hours, which has not been explained by
the IO. Moreover, the communication u/s. 42 & 57 NDPS Act are
official communication and no Dak Register/Log Book has been
produced to show that the compliance was actually done.
75. Ld. Counsel for the accused further submitted that as
per PW-10 ASI Sudhir Kumar, after filing of the chargesheet in
the present case, an application u/s. 52A NDPS Act was moved,
however, no such application is on record and submitted that in
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35the FSL acknowledgment, there is no mentioning about the seal
on the pullandas, which were sent to the FSL and about the
documents sent alongwith the acknowledgment.
76. Lastly, it has been argued that neither any public
person or Govt. official was joined as witness during the
proceedings, nor any videography or photography was done, nor
it was investigated by the IO, as to who was actually the owner of
the said car, which was allegedly being driven by the accused.
77. Ld. Counsel for the accused has relied upon the
following case laws:-
a). Union of India v. Mohanlal & Ors., Criminal
Appeal No.652 of 2012
b). NCB v. Kashif, Crl. Appeal No.5544 of 2024 @
SLP (Crl.) No. 12120 of 2024
c). Bharat Aambale v. State of Chhattisgarh, SLP
(Crl.) No.14420 of 2024
d). Standing instructions 1/88 issued by NCB
e). UOI v. Bal Mukund, 2009 Crl. L. J. (SC)2407
f). Noor Aga v. State of Punjab, (2008) 16 SCC 417
g). Karnail Singh v. State of Haryana, Criminal
Appeal No.63 of 2003 decided on 29.07.2009.
h). Peeraswami v. State, 2007 (2) JCC (Narcotics)
80
i). Vijaysinh Chandubha Jadeja v. State of Gujarat,
2010(4) JCC Page 236
j). Mohd. Jabir v. State, Bail Application No.
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361725/2022, decided on 28.03.2023
k). Dharambir v. State, Crl. Appeal No. 658 of 2017
dated 13.11.2018
l). Sehdev v. State, 2009(3) JCC (Narcotics)
Hon’ble High Court of Delhi
m). Sanjeev Puri v. State, 1996(1) C. C. Cases 223
(HC)
n). Eze val okeke @ Val Eze v. NCB, 2005 (1) CC
Cases (HC) 72.
o). Dudh Nath Pandey v. State of U.P., AIR 1981 SC
911
p). Jayabalan v. UT of Pondicherry, (2010) 1 SCC
199
q). Valsala v. State of Kerala, 1993(1) CC Cases 178
(SC)
r). Mousam Singha Roy & Ors. v. State of West
Bengal, 2003(12) SCC 377
78. I have considered the rival submissions, put forth by
both the sides.
79. From the submissions of the learned Counsel, the
following point for determination arise in the present case:
Whether the accused was found in possession of
200 grams of Heroin as alleged?
80. Before a person can be held liable for commission of
any offence, the prosecution has to establish his guilt beyond
reasonable doubt.
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81. I shall now delve into the appraisal of material
available on record.
82. As per the case of the prosecution, on 20.05.2019,
one secret information was received at about 9:00 PM that two
persons namely Anil and Pankaj would come at Khajuri chowk at
around 2:00-3:00 AM to supply Heroin to someone and if raid is
conducted, they can be apprehended and Heroin can be recovered
from them. It has been submitted by Ld. Addl. PP for the State
that after complying with Sec. 42 NDPS Act and after obtaining
the search authorization from the ACP concerned, a raiding team
consisting of SI Abdul Barkat, Ct. Shani Rathi, Ct. Sonu Tomar
and HC Vivek Tomar reached at the spot and at about 2:00 AM,
accused Anil was apprehended after pointing out by the secret
informer, when accused Anil was coming in his car bearing
registration No. DL-10CK-8881. When the car of the accused
was checked, one transparent polythene containing Heroin was
found, which when weighed found to be 200 grams and after
drawing two samples of 5 grams each, the samples as well as
remaining Heroin was converted into the cloth parcels. Notice
u/s. 50 of NDPS Act was prepared and served upon the accused
Anil. Accused had given his refusal in writing on the carbon copy
of the notice u/s. 50 of NDPS Act. Even though, he had refused
to avail his right to be searched before the Gazetted
Officer/Magistrate, despite that the accused was taken to the
office of Narcotic Cell, Crime Branch, where, Sh. R. K. Ojha,
ACP was present and the accused was personally searched in the
presence of Sh. R. K. Ojha, ACP, however, nothing was
recovered from his personal search.
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83. On the very next day, samples which were drawn at
the spot, were sent to the FSL. As per the FSL result, on
Chemical, TLC & GC-MS examination, Exhibit ‘A’ was found to
contain ‘Diacetylmorphine (10.5%), ‘Acetaminophen’,
Acetylcodeine’ & ‘6-Monoacetylmorphine’, which confirms the
presence of Heroin.
84. So far as the present case is concerned, in the
present case, the prosecution has been able to prove that when the
secret information was received at 9:00 AM in the office of
Narcotic Cell, the secret informer was produced before the Insp.
Brij Pal Singh, who after satisfying himself about the contents of
the secret information, conveyed the same to Sh. R. K. Ojha,
ACP, Narcotic Cell, who had issued direction for conducting the
raid and to carry out the relevant proceedings. Thereafter, the said
secret information was reduced into writing, vide DD No. 23,
which is Ex.PW1/C.
85. In the considered opinion of this court, the said
recording of the secret information in the form of DD No. 23
amounts to due compliance of Sec. 42 NDPS Act and merely
because, before recording the same in the form of DD entry, the
information was conveyed to Insp. Brij Pal Singh and ACP Sh.
R. K. Ojha will not vitiate the same and will not amount to non-
compliance of 42 NDPS Act. The secret information was
received at 9:00 PM and DD entry was recorded at 10:00 PM and
the IO/Insp. Brij Pal Singh as well as ACP Sh. R. K. Ojha duly
deposed that they had satisfied themselves about the said secret
information and thereafter, the necessary instructions were
issued. This court does not find force in the submission of the Ld.
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39Counsel for the accused that recording of the secret information
in the form of DD entry will not amount to compliance of Sec. 42
NDPS Act. Otherwise also, no prejudice has been caused to the
accused merely because the secret information has been recorded
in the form of DD entry. After recording of DD No. 23, same was
produced before the ACP Sh. R. K. Ojha, who thereafter had
issued the search authorization, which is Ex.PW7/A and the same
has been duly proved by Sh. R. K. Ojha, the then ACP.
86. Ld. Counsel for the accused has argued that said
authorization is not valid and it was prepared subsequently just to
fill the lacuna in the present case. He has also argued that Sh. R.
K. Ojha, ACP was not present in the office at that time and
record was manipulated just to show his presence in his office. It
is worth mentioning here that an application u/s. 94 BNSS was
moved on behalf of the accused for summoning of the record
regarding official car used by Sh. R. K. Ojha, ACP at that time to
prove that he was not present in his office. In compliance of the
notice, relevant record regarding official vehicle was produced,
however, in the considered opinion of this court, from the record,
it cannot be said that Sh. R. K. Ojha, ACP was not present in the
office at that time. The accused has failed to bring anything on
record which could show that the authorization issued by ACP R.
K. Ojha, which is Ex.PW7/A was invalid and was not in
compliance of Sec. 41 of the NDPS Act.
87. No doubt, as prior information was available,
provisions of Sec. 42 of NDPS Act needed to be complied with
fully. It has been held in Karnail Singh Vs. State of Haryana
(2009) 8 SCC 539 that total non-compliance with the provisions
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40of Sec. 42 is impermissible. However, present case is not that of
total non-compliance. Infact, this court is satisfied that provisions
of Sec. 41 & 42 of NDPS Act were duly complied with.
88. In case Smt. Krishna Kanwar @ Thakuraeen v. State
of Rajasthan, AIR 2004 SC 2735, it was held that merely because
particulars of dispatch number were not stated, it would not
corrode credibility of the witnesses examined to establish that the
information was conveyed to the higher authorities.
89. In the present case also IO as well as Insp. Brij Pal
Singh and ACP Sh. R. K. Ojha have duly proved the necessary
compliances u/s. 41 & 42 of NDPS Act as well as u/s. 57 NDPS
Act and merely because the dispatch register was not produced in
the court, it will not corrode their credibility regarding
communication of the necessary intimation.
90. So far as the arguments of the Ld. Counsel for the
accused that Sec. 52A NDPS Act has not been complied with is
also of no relevance in the present case, as now, the Hon’ble
Supreme Court of India has clarified in case Bharat Aambale v.
The State of Chhattisgarh that Sec. 52A NDPS Act is for the
disposal and inspection of the seized contraband in a safe manner
and 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. Non-compliance or delayed compliance of the
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41said provision or rules thereunder may lead the court to draw 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.
91. It is settled position that Sec. 52-A of NDPS Act
deals with disposal of seized contraband articles. Any violation of
the said provisions will not vitiate the recovery of the contraband.
92. Thus, in the present case, mere non-compliance of
Sec. 52-A NDPS Act will not make the entire recovery to be
doubtful and will not amount to any adverse inference against the
prosecution. Moreover, it is worth noticing that said alleged
recovery was done on 21.05.2019 and the samples which were
drawn from the said recovered contraband was sent to FSL on the
very next day on 22.05.2019 and there was not much time gap
between the alleged recovery and sending of the samples to the
FSL, therefore, possibility of tempering with the samples is also
ruled out. This fact of depositing the samples at FSL has been
duly proved by ASI Jag Narayan (PW-2) and ASI Nityanand
(PW-11).
93. Ld. Counsel for the accused has also argued that
FSL form and test memos were not sealed and thus, violates the
guidelines as provided under Standing Instruction 1/88. This
argument is also not tenable, firstly on the ground that merely
because the FSL form was not sealed will not mean that the
samples were tampered with as the samples were duly sealed and
secondly on the ground that depositing of the samples in FSL on
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4222.05.2019 has been duly proved not only by PW-2 ASI Jag
Narayan (PW-2) and ASI Nityanand (PW-11), but also PW-3
Smt. Kavita Goyal, Assistant Director (Chemistry). She has also
duly proved the FSL report thereby confirm the presence of
Heroin in the samples of the recovered contraband. The detailed
report is Ex.PW3/A.
94. Ld. Counsel for the accused has also raised
argument of non-compliance of Sec. 50 NDPS Act, however, in
the present case, non-compliance of Sec. 50 NDPS Act does not
affect the case of the prosecution, as recovery of the contraband
was done from the car of the accused and not from his personal
search. Otherwise also, even though, the accused refused to be
searched before the Gazetted Officer, despite that he was taken to
the office of the Narcotic Cell, where, he was personally searched
in the presence of Sh. R. K. Ojha, ACP, who was himself a
Gazetted Officer. Therefore, Sec. 50 NDPS Act has also been
duly complied with in the present case.
95. It is now well settled that compliance of Sec. 50 of
NDPS Act is required only when the person of the accused is to
be searched. If accused is carrying any article like bag, briefcase,
container etc. then there is no need to comply with Sec. 50 of the
said Act. Reference may be made to Ajmer Singh vs. State of
Haryana, (2010) 3 SCC 746.
96. Lastly, it has been argued by Ld. Counsel for the
accused that no public witness or Govt. official was joined during
the proceedings, nor any videography/photography was done,
which raises serious doubts upon the entire recovery proceedings.
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This court does not find any force in the said submissions also as
the alleged recovery was done at 2:00 AM in night and at that
time, the roads mostly remain secluded and public is not
available at such wee hours and all the witnesses who were part
of the raiding team categorically mentioned that they asked 4-5
public persons to join the raiding team, but they refused to do so.
97. Failure to join public witnesses cannot be considered
fatal to the prosecution case. Reference may be made to Ajmer
Singh vs. State of Haryana, (2010) 3 SCC 746. It was held in this
case that if police failed to associate public witnesses after
making reasonable efforts, then recovery cannot be doubted. In
the present case also, reasonable efforts were made to join public
persons but none agreed.
98. The fact that it was late at night and at that time,
people on the roads are in hurry to reach their destinations and
non-joining of any public person in the proceedings, would not
mean that IO did not make any effort for the same. Admittedly, in
such late night hours, the IO cannot be expected to knock the
doors of the residential colonies so as to ask the residents thereof
to join the proceedings of the present case. Therefore, non-
joining of any independent witness in the present case will not
adversely affect the case of the prosecution and otherwise also
this court does not find any contradiction in the depositions of
any prosecution witness. The arguments that IO failed to enquire
about the ownership of the vehicle No. DL-10CK-8881 is also of
not much consequence and if the accused was so sure that it
could have benefited his case, then he could have himself found
out the owner of the said vehicle and examined him in his
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44defence.
99. In the considered opinion of this court, the
testimonies of all the prosecution witnesses are consistent enough
and no material contradiction came out from cross-examination
of the prosecution witnesses. It is well settled that once the
recovery of the alleged contraband from the possession of the
accused is proved, presumption u/s. 35 NDPS Act and Sec. 54
NDPS Act come into play. Sec. 35 of NDPS Act talks about
culpable mental state and Sec. 54 of the Act raises presumption
that the court may presume that the accused has committed the
offence under this Act in respect to any Narcotic drug or
Psychotropic substance or controlled substance for the possession
of which, he fails to account satisfactorily and once these
presumption are raised, onus shifts upon the accused to prove
non-existence of such mental state as envisaged u/s. 35 of NDPS
Act and also to satisfactorily explain the possession of the alleged
contraband, as envisaged u/s. 34 of NDPS Act.
100. In the considered opinion of this court, accused has
failed to rebut both the presumptions. Although he has examined
one witness as DW-1 yet in the considered opinion of this court,
he being an interested witness cannot be solely relied upon to
rebut the presumption against the accused especially in view of
the fact that all the prosecution witnesses have proved the guilt of
the accused beyond reasonable doubt.
101. I have gone through all the judgments relied upon by
the Ld. Counsel for the accused, however, in the considered
opinion of this court, none of the said judgments help the case of
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45the accused. The facts of those judgments are quite
distinguishable. In Union of India v. Mohanlal & Ors. case, the
judgment was referring to the non-compliance of Sec. 52A NDPS
Act, however, subsequently in Bharat Aambale v. State of
Chhattisgarh case, the Hon’ble Supreme Court of India has
clarified that mere non-compliance of Sec. 52-A NDPS Act will
not amount to acquittal of the accused. The judgment NCB v.
Kashif was basically on bail, where the accused was released on
bail for non-compliance of Sec. 52-A NDPS Act. In UOI v. Bal
Mukund case, conviction was basically based upon the
confession of the accused, which was set aside by the Hon’ble
Supreme Court of India. In Noor Aga v. State of Punjab case, the
Hon’ble Supreme Court of India found many contradictions in
the statements of official witnesses, benefit of which was given to
the accused. In Karnail Singh v. State of Haryana case, there was
non-compliance of Sec. 52-A NDPS Act, in addition to other
contradictions.
102. In Peeraswami v. State, although the secret
information was recorded in the form of DD entry yet there were
various discrepancies in the testimonies of the prosecution
witnesses, which was noticed by the Hon’ble High Court of Delhi
and due to cumulative affect of all the discrepancies, the accused
was ultimately acquitted. In Vijaysinh Chandubha Jadeja v. State
of Gujarat, Mohd. Jabir v. State, Dharambir v. State, there was
non-compliance of Sec. 50 NDPS Act. In Sehdev v. State, the
Hon’ble Court found whole prosecution story to be doubtful and
benefit of which was given to the accused.
103. In view of the above discussion, this court has no
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46hesitation in holding that the prosecution has been able to prove
the guilt of the accused beyond all reasonable doubts.
104. Accordingly, accused Anil is hereby convicted for
the charged offence punishable u/s. 21(b) of NDPS Act.
105. Let convict Anil be heard on sentence.
Announced in the open court
on 15th day of July, 2025
(PUNEET PAHWA)
Special Judge (NDPS)/Addl. Sessions Judge/
North East District/Karkardooma Courts/Delhi
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