Delhi District Court
State vs Arvind Yadav on 14 February, 2025
IN THE COURT OF ALOK SHUKLA, ADDITIONAL SESSION
JUDGE-02, SPECIAL JUDGE (NDPS), EAST DISTRICT,
KARKARDOOMA COURT, DELHI
CNR no. DLET01-008062-2019
Session Case No. 3360/2019
State versus Arvind Yadav & Anr.
First Information Report No. 61/2019
Police Station Crime Branch, East Delhi
Under Section 21/25/29 Narcotic Drugs and Psychotropic
Substances Act
In the matter of: -
STATE
Versus
(1) Mohan Rai Arora @ Monu
Son of Late Rajender Arora,
Resident of A-74, Malviya Nagar,
South Delhi, Delhi.
(2) Arvind Yadav
Son of Sh. A.A. Yadav,
Resident of C-A4-C, DDA Flat, Munirka Village,
Vasant Vihar, South West, Delhi.
Date of Institution : 07.09.2019
Date of reserve for judgment : 21.01.2025
Date of decision : 14.02.2025
JUDGMENT
1. Accused persons namely Arvind Yadav and Mohan Rai
Arora were charged with the offence under Section 21(C)/25/29
of the Narcotic Drugs and Psychotropic Substances Act.
2. Brief Facts of the case as per prosecution are that on
14.03.2019 at about 9:45 PM, a secret information was
received by ASI Ashok Kumar at the Office of Narcotics Cell,
Crime Branch, Old Kotwali Daryaganj, Delhi that two persons
namely Arvind and Monu, who were residing in Munirka along
Page no. 1
with their associate Srikant, indulged in supply of Cocaine in
wholesale and retail in Delhi, would come to supply Cocaine to
someone between 11:00 PM to 12:00 mid-night near the office
of SDM, Geeta Colony Delhi and if raid is conducted in time,
they may be caught along with Cocaine. Thereafter, ASI Ashok
Kumar produced the informer before Inspector Brij Pal Singh in
his office at about 10:00 PM, who made enquiries from the
informer and after satisfaction, the information was passed on
to Shri R.K. Ojha, ACP/Narcotics telephonically, who directed
him to take immediate appropriate legal action. The secret
information was reduced into writing vide DD No. 26 at 10:20
PM and produced before Insp. Brij Pal Singh in compliance of
Section 42 NDPS Act and as per the direction of senior officers,
a raiding team comprising Ct. Rajesh No. 1375/Crime, Ct. Sunil
No. 1479/Crime and Ct. Pankaj, 925/Crime was constituted by
ASI Ashok Kumar and team members were briefed by him. The
raiding party departed for the spot vide DD No. 27 at 10:35 PM
after taking IO bag, field testing Kit, electronic weighing scale in
a private Vehicle driven by Ct. Pankaj along with the informer.
At 11:00 PM, raiding party reached the spot i.e. near office of
SDM, Geeta Colony Delhi and took position and at about 11:30
PM, one silver colour Scorpio Vehicle No DL-8C-AQ-0099 was
seen coming from Pusta road side towards SDM Office, Geeta
Colony in which two persons were sitting. The Secret informer
identified the person sitting on driver seat as Monu and the
person sitting next to him as Arvind. At the instance of informer,
the said vehicle was intercepted and both the persons sitting in
the car were overpowered. The name and addresses of the
apprehended persons were revealed as the Mohan Rai Arora
@ Monu s/o Lt. Rajender Arora r/o A-74, Malviya Nagar, Delhi
Age 30yrs and Arvind Yadav s/o A. Alexender Yadav r/o CA4C,
Page no. 2
DDA Flat, Munirka Delhi Aged 43yrs. The search of vehicle No.
DL-8C-AQ-9099 was carried out and a black color polythene
packet was recovered from the dash board of the car and from
the black color polythene packet, two transparent polythene
packets containing white color powdery substance were
recovered. The substance recovered from both the transparent
polythene packets was tested on testing kit and found to be
Cocaine. The transparent polythene packets weighing 200
grams each were given Mark-A and Mark-B. The recovered
Cocaine was seized after drawing samples from it. It was
explained to the apprehended persons that the police team was
having secret information that they (apprehended persons)
were indulged in supply of Cocaine and there was possibility of
further recovery of cocaine from their possession/personal
search. Accused persons were also informed about their legal
right to be searched in the presence of a Gazetted Officer or
Magistrate and that they could also conduct search of members
of police party & police vehicle, prior to their search, but both of
them declined to avail their rights and refused to take search of
the police party and police vehicle. Thereafter, written notices
under Section 50 NDPS Act were served upon the accused
persons and they wrote their reply on the carbon copy of notice
u/s 50 NDPS Act in their own handwriting and signed the same.
Thereafter, both apprehended persons were brought to the
office of Narcotics Cell at Darya Ganj and produced before Sh
R.K. Ojha, ACP Narcotics Cell, where their personal search was
carried out before ACP/Narcotics Cell. During personal search
of accused Arvind and accused Mohan Rai @ Monu, nothing
incriminating could be recovered. The Vehicle Scorpio bearing
No. DL-8C-AQ-9099 used for the transportation of recovered
cocaine was also taken in police possession vide a separate
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seizure memo. Thereafter, the present case FIR No. 61/19
dated 15.03.19 u/s 21/25/29 NDPS Act was registered at PS
Crime Branch and further investigation was entrusted to SI
Arvind Kumar. During investigation, accused Arvind and Monu
were arrested by SI Arvind Kumar. FSL result was obtained with
opinion that “On Chemical, TLC & GC-MS examination, exhibit
‘A-1’ & ‘B-1’ were found to contain 29.9% & 59.4% Cocaine
respectively”. After completion of investigation, chargesheet
was filed before the Court. During investigation, third accused
person namely Srikant Ranganathan was also arrested and the
supplementary charge sheet was filed before the Court on
07.01.2020.
CHARGES AGAINST THE ACCUSED
3. By order dated 18.02.2022, charge for the offences under
Sections 21(c)/25/29 of NDPS Act was framed against accused
Arvind Yadav and Mohan Rai Arora to which they pleaded not
guilty and claimed trial. Co-Accused Srikant Ranganathan was
discharged vide the same order.
PROSECUTION WITNESSES
4. Sixteen prosecution witnesses were examined during the
course of trial.
5. PW1 Sh. Surender Kumar, Nodal officer, Bharti Airtel
produced CAF of mobile number 9999901818 and 8860127771
and CDR of both numbers from 01.01.2019 to 14.03.2019. The
certified copy of CAF alongwith with Voter ID is Ex.PW1/A, CDR
is Ex.PW1/B and location chart is Ex.PW1/C and certificate
under Section 65B Indian Evidence Act is Ex.PW1/D. He
deposed that mobile number 9999901818 was issued in the
name of Arvind Yadav and mobile number 8860127771 in the
name of Mohan Rai Arora. He produced certified copy of CAF
alongwith aadhar card Ex.PW1/E, certified copy of CDR
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Ex.PW1/F, location Chart Ex.PW1/G and certificate under
Section 65B Indian Evidence Act Ex.PW1/H.
6. PW-2 SI Ashok Kumar deposed that on 14.03.2019 he
was posted as ASI with Narcotic Cell Crime Branch Delhi and
on that day at about 9:45 pm, secret informer came to his office
and informed that Monu, Arvind and Srikant resident of Munirka
used to deal in cocaine in wholesale and retail and on that day
accused Monu and Arvind would come in Scorpio car bearing
no. DL 8CAQ 9099 silver colour at Geeta Colony, near SDM
office between 11:00 pm to 12:00 night and if nakabandi is
done, they could be apprehended and cocaine would be
recovered from their car. He further deposed that after being
satisfied with the secret information, he produced the secret
informer before Inspector Brijpal in his office and also
communicated the secret information to him. He further
deposed that Inspector Brijpal after being satisfied informed
ACP Sh. R.K. Ojha regarding the secret information, who
directed to take action immediately and the information was
entered in roznamcha vide DD No.26 at 10:20 pm and copy
thereof was produced before Inspector Brijpal in compliance of
section 42 of the NDPS Act Ex.PW2/A. He further deposed that
on the instructions of Inspector Brijpal, a raiding party was
prepared including him, Constable Sunil, Constable Rajesh and
Constable Pankaj and he took IO bag, field testing kit and
electronic weighing scale and made departure entry in
roznamcha vide DD No.27 at 10:35 pm Ex. PW2/B. He further
deposed that they left their office along with secret informer in
Swift Dzire car driven by Constable Pankaj and in the way they
stopped the vehicle at red light signal Shantivan, where he
asked four public persons to join the raiding party after telling
them about the secret information but none of them agreed to
Page no. 5
join the raiding party and left after telling their genuine
difficulties and due to paucity of time notice could not be served
upon them. He further deposed that due to lack of time search
warrant for the search of vehicle of the accused persons was
not obtained and thereafter, they reached near SDM office,
Geeta Colony at about 11:00 pm and parked the car at the road
side towards Geeta Colony and started waiting for the accused
persons in their car and at about 11:30 pm, Scorpio car bearing
no. DL 8CAQ 9099 was seen coming from Pusta Road on slow
speed and secret informer identified the driver as Monu and the
person sitting on the seat adjacent to driver as Arvind. He
further deposed that thereafter secret informer left from there
and when the Scorpio car crossed their car then they took their
car in front of the Scorpio car and stopped the Scorpio car. He
further deposed that they apprehended both accused persons
namely Mohan Rai Arora and Arvind Yadav and took the search
of the Scorpio car bearing no. DL 8CAQ 9099, wherein one
heavy black polythene was found in the dashboard of the
Scorpio car. He further deposed that on being checked said
polythene, two transparent polyethene containing white powder
was found and the substance / white powder of the transparent
polyethene were tested through field testing kit, which was
found to be cocaine and on being weighed, 200 grams of
cocaine was found in each polythene mark A and mark B. He
further deposed that he took two samples of 5-gram heroin from
polythene mark A in small polyethene which were tied with
rubber band and converted into cloth pullandas which were
mark A1 and A2 and 190 grams cocaine was left in the
transparent polythene mark A. He further deposed that he took
two samples of 5 gram heroin from polythene mark B in small
polythenes, which were tied with rubber band and converted
Page no. 6
into cloth pullandas which were mark B1 and B2 and 190 grams
cocaine was left in the transparent polythene mark B. He further
deposed that he sealed all the pullandas with the seal of 6CPS/
NB DELHI and filled Form FSL and sealed it with the same
seal. He further deposed that all the sealed pullandas and Form
FSL were taken into police possession vide seizure memo Ex.
PW2/C and he handed over the seal to Constable Rajesh and
Scorpio car bearing no. DL 8CAQ 9099 was seized vide seizure
memo Ex. PW2/D. He further deposed that he apprised
accused persons about the secret information and told them
that there are chances of more recovery of contraband from
them, hence, their search would be taken and it was their legal
right to give their search in presence of Gazetted officer or
Magistrate and they can also take search of the police officers
and he served notice under section 50 of the NDPS Act to
accused persons Arvind Yadav and Mohan Rai Arora @ Monu
and carbon copy of the notices are Ex. PW2/E and Ex. PW2/F
and receiving of the accused persons were taken on the carbon
copy of the notices. He further deposed that both accused
persons refused to avail their legal right and replies of the
accused persons were recorded on the back of the carbon copy
of the notices Ex.PW2/G and Ex. PW2/H and thereafter, they
took accused persons to their office at Kotwali and produced
them before ACP Sh. R.K. Ojha in his office, where their
personal search was carried out, however no contraband was
recovered. He further deposed that thereafter, he prepared
rukka Ex.PW2/K and handed over rukka, sealed parcels of case
property, FSL Form and photocopy of seizure memo to Ct. Sunil
and sent him to PS Crime Branch at 4.30 am with the directions
to hand over the rukka to duty officer and remaining
articles/documents to SHO PS Crime Branch. He further
Page no. 7
deposed that after registration of FIR, investigation was
assigned to SI Arvind Kumar and he handed over the
documents prepared by him and custody of the accused
persons to SI Arvind Kumar and also handed over keys of the
Scorpio car to him. He along with SI Arvind Kumar went to the
spot and SI Arvind Kumar inspected the spot at his instance
and prepared site plan Ex. PW2/L and thereafter they returned
to office of Narcotic Cell. He further deposed that SI Arvind
interrogated accused Arvind Yadav and arrested him at about
10 am on 15.03.2019 vide arrest memo Ex.PW2/M, his
personal search was effected vide memo Ex.PW2/M1 and
disclosure statement was recorded vide memo Ex.PW2/N. He
further deposed that thereafter, SI Arvind interrogated accused
Mohan Rai Arora @ Monu and arrested him at about 11am on
15.03.2019 vide arrest memo Ex.PW2/O, his personal search
was effected vide memo Ex.PW2/P and disclosure statement
was recorded vide memo Ex.PW2/P1. He further deposed that
that both accused persons Arvind Yadav and Mohan Rai Arora
were produced before Inspector Brijpal. He submitted report
under section 57 NDPS Act to senior officers which is
Ex.PW2/Q. He identified both accused persons Mohan Rai
Arora @ Monu and Arvind Yadav before the Court. He further
identified the two transparent polythene containing cocaine
Mark A and B tied with rubber band kept in a black polythene as
recovered from the dashboard of the Scorpio car of the accused
persons. He identified the polythene of cocaine mark A Ex. P-1
and polythene containing cocaine mark B Ex. P-2 and Black
polythene Ex. P-3.
7. PW 3 Rahul, Nodal Officer, Vodaphone Idea Ltd.
produced original CAF of mobile number 9999259480 issued in
the name of Srikant Ranganathan alongwith it’s CDR from
Page no. 8
01.01.2019 to 13.03.2019. Certified copy of CAF along with
Aadhar card is Ex.PW3/A and certified copy of CDR is
Ex.PW3/B and the location chart is Ex.PW3/C. He also issued
certificates under section 65B of the Indian Evidence Act Ex.
PW3/D (colly.).
8. PW4 ASI Satender deposed that on 15.03.2019, he was
posted at PS Crime Branch as ASI and was working as duty
officer from 8 pm to 8 am. He further deposed that on that day
at about 5:23 am, Ct Sunil brought rukka sent by ASI Ashok
Kumar and the contents of rukka were dictated by him to the
computer operator and FIR was registered vide FIR No.
61/2019 and computerized copy of FIR was obtained. He
further deposed that further investigation was assigned to SI
Arvind Kumar and he handed over the copy of FIR Ex. PW4/A
and original rukka to Constable Sunil to be handed over to the
IO. He made endorsement on the rukka Ex. PW 4/B.
9. PW5 Ct. Amit Kumar produced original diary register
pertaining to the record of 2019, two reports under section 57
NDPS Act and one report under section 42 NDPS Act pertaining
to the case. He deposed that as per record report under section
42 NDPS Act of FIR no. 61/2019 PS Crime was received on
15.03.2019 vide diary no.589 dated 15.03.2019 and report was
put up before the then ACP, who had seen and signed the same
Ex. PW5/A. The copy of relevant entry of diary register was
exhibited as Ex. PW5/B. He further deposed that as per record,
report under section 57 NDPS Act of FIR No.61/2019 PS Crime
Branch prepared by ASI Ashok Kumar dated 15.03.2019 was
received in his office vide diary no.590 on 15.03.2019 and
report was seen and signed by the then ACP and the report is
Ex. PW5/C and photocopy of relevant entry in diary register is
Ex. PW5/A. He further deposed that as per record, report under
Page no. 9
section 57 NDPS Act of FIR No.61/2019 PS Crime Branch
prepared by SI Arvind Kumar dated 15.03.2019 was received in
his office vide diary no.591 on 15.03.2019 and report was seen
and signed by the then ACP Ex. PW5/D and photocopy of
relevant entry in diary register is Ex. PW5/A. He further
deposed that that as per record report, under section 57 NDPS
Act of FIR No.61/2019 PS Crime Branch prepared by SI Arvind
Kumar dated 16.09.2019 was received in his office vide diary
no.1932 on 16.09.2019 and report was seen and signed by the
then ACP Ex. PW5/E and photocopy of relevant entry in diary
register is Ex. PW5/F.
10. PW6 Retired ACP Sh. R.K. Ojha deposed that on
14.03.2019, he was posted as ACP- N & CP in Crime Branch,
Delhi and on that day, Inspector Brijpal at about 10.10 pm
informed him telephonically regarding secret information that
two persons namely Monu and Arvind would come to supply
cocaine near Geeta Colony, SDM Office in Scorpio Car bearing
no. DL 8C AQ 9099 between 11.00 to 12.00 midnight and he
directed Inspector Brijpal to proceed immediately and he also
proceeded to his office. He further deposed that at about 2.30
am on 15.03.2019, accused persons Monu @ Mohan Rai and
Arvind Yadav were produced before him by ASI Ashok Kumar
and their search was conducted in his presence vide personal
memo Ex. PW2/I and Ex. PW2/J and he also produced report
under section 42 NDPS Act Ex. PW2/A. He further deposed that
on the same day, his Reader put up two reports under section
57 NDPS Act, both dated 15.03.2019, one prepared by ASI
Ashok Kumar Ex. PW2/Q and the second prepared by SI Arvind
Kumar Ex. PW6/A and he saw both the reports and signed
them.
11. PW7 Sanjay Kanhaiya, Senior Assistant, Transport Office
Page no. 10
Mall Road, Delhi brought the record of Mahindra Scorpio
vehicle bearing registration no. DL 8C AQ 9099 and as per
record the vehicle was owned by accused Arvind Yadav s/o Sh.
A.A. Yadav, R/o. CA-4C, Block A, Munirka, DDA Flats, Delhi.
The record/ particulars of the said vehicle brought by PW7 is
Ex. PW7/A.
12. PW8 Ct. Sunil Kumar deposed that he was posted as
Constable on 14.03.2019 with Narcotic Cell Crime Branch Delhi
and at about 10.30 pm, ASI Ashok Kumar called him to his
office along with Ct. Pankaj and Ct. Rajesh and told them that
secret information had been received that accused Arvind
Yadav and one Monu were involved in large scale trade and
retail sale of cocaine with their associate Srikant in Delhi. He
further deposed that ASI Ashok Kumar told them that as per
information accused Arvind Yadav and Monu would come to
supply cocaine to some person between 11.00 pm to 12.00
midnight near SDM office, Geeta Colony in a Scorpio vehicle
Silver color bearing no. DL 8CAQ 9099 and the secret informer
was also present and thereafter, raiding team was prepared by
ASI Ashok Kumar and ASI Ashok Kumar had taken IO bag, field
testing kit and electronic weighing machine with him. He further
deposed that departure was recorded vide DD No.27 at 10.35
pm from the office of Narcotic Cell for the spot and on the way
at Shantivan traffic signal ASI Ashok Kumar asked 4-5 members
of the public to join the investigation but all refused citing their
reasons and at about 11.00 pm, they reached near the spot and
parked the vehicle on the road going towards SDM office Geeta
Colony and started waiting for the Scorpio vehicle as per
information. He further deposed that at about 11.30 pm, secret
informer pointed towards a Scorpio vehicle bearing no. DL 8
CAQ 9099 coming from the side of Pusta Road going towards
Page no. 11
SDM office and the secret informer disclosed that the person
sitting on the driver seat was Monu and person sitting on front
passenger seat was accused Arvind Yadav and thereafter,
secret informer got down from their vehicle and went towards
Pusta Road and just when the Scorpio vehicle passed them,
they chased the said vehicle with their vehicle for about 50
meters and stopped the Scorpio vehicle after over taking it in
front of SDM office and at about 11.35 pm, they had
apprehended both the persons. He further deposed that ASI
Ashok Kumar ascertained their names and addresses and the
person sitting on the driver seat told his name as accused
Mohan Rai Arora @ Monu and person sitting adjacent to the
driver seat revealed his name as accused Arvind Yadav. He
further deposed that ASI Ashok Kumar took search of the
Scorpio car and a heavy black polythene was found from the
dashboard of the said car, on being checked, two transparent
polythenes containing white powder were found in the black
polythene. He further deposed that opening of transparent
polythene were closed with interlock zip and ASI Ashok Kumar
checked the powder of both the polythenes through field testing
kit and it was found to be cocaine and Mark A and B were given
to the transparent polythene containing cocaine and on being
weighed, each polythenes containing cocaine 200-200 grams
each. He further deposed that ASI Ashok Kumar had drawn two
samples of cocaine from polythene Mark A of 5-5 grams each
and gave mark A1 and A2 to the samples drawn from polythene
mark A and the remaining 190 grams cocaine which was kept in
polythene mark A was tied with rubber band. He further
deposed that ASI Ashok Kumar had drawn two samples of
cocaine from polythene Mark B of 5-5 grams each and gave
mark B1 and B2 to the samples drawn from polythene mark B
Page no. 12
and the remaining 190 grams cocaine which was kept in
polythene mark B was tied with rubber band and polythenes
containing cocaine mark A and B were kept in the same black
polythene and converted into cloth parcel and giving mark C.
He further deposed that Form FSL was filled and ASI Ashok
Kumar sealed all the parcels Mark A1, A2, B1, B2 and C and
Form FSL with the seal of GCPS /NB DELHI and handed over
the seal to Constable Rajesh and seized them vide seizure
memo Ex. PW2/C and Scorpio car of the accused persons were
also taken into police possession through seizure memo Ex.
PW2/D. He further deposed that ASI Ashok Kumar apprised the
accused persons Mohan Rai Arora and Arvind Yadav about the
secret information and told them that there are chances of more
recovery of contraband from them, therefore, their search would
be taken and it is their legal right to give their search in
presence of Gazetted Officer or Magistrate and they can also
take search of the police officers and thereafter, ASI Ashok
Kumar served notice under section 50 of the NDPS Act to both
the accused persons Arvind Yadav and Mohan Rai Arora
@Monu, carbon copy of which are lready Ex. PW2/E and Ex.
PW2/F respectively. He further deposed that both accused
persons refused to avail their legal right and their replies were
recorded on the back of the carbon copy of notice Ex.PW2/G
and Ex. PW2/H respectively. He further deposed that they had
taken the accused persons to their office at Kotwali and he had
driven the Scorpio car of the accused persons and Ct. Pankaj
had driven the white Swift Dzire car in which raiding team came
to the spot. He further deposed that they reached their office at
about 2.30 am on 15.03.2019 and both the accused persons
were produced before ACP Sh. R.K. Ojha in his office and their
search was effected but no other contraband was found from
Page no. 13
them and ASI Ashok Kumar prepared memos of non recovery
Ex. PW2/1 and Ex. PW2/J respectively. He further deposed that
ASI Ashok Kumar prepared rukka and handed over to him
alongwith all the sealed parcels of case property, FSL Form and
photocopy of seizure memo and sent him to PS Crime Branch
at 4.30 am with the directions to hand over the rukka to duty
officer and case property to SHO PS Crime Branch. He went to
PS Crime Branch in white Swift Dzire car driven by Ct. Pankaj
and reached there at about 5.15 am and handed over rukka to
the duty officer and case property, Form FSL and copy of
seizure memo to SHO PS Crime Branch. He further deposed
that at about 7.00 am duty officer handed over tehrir and copy
of FIR to him alongwith some copies of relevant DD entry. He
reached his office at about 7.45 am and handed over the said
documents to SI Arvind Kumar, who recorded his statement
from 9.00 am to 9.45 am. He identified accused Mohan Rai
Arora in the Court and accused Arvind Yadav, who was on
interim bail and appeared through video conferencing in the
Court. He also identified the polythene of cocaine mark-A Ex.
P-1, polythene containing cocaine mark-B Ex. P-2 and Black
polythene Ex. P-3. He further identified sample parcel mark A2
Ex. P-4 and Sample parcel mark B2 Ex. P-5 as well as sample
parcel mark A1 Ex. P-6 and Sample parcel mark B1 Ex. P-7. He
identified original notices under section 50 of the NDPS Act
Ex.P-8 and Ex.P-9, Scorpio car bearing No. DL 8CAQ 9099
Ex.P-10 and its four photographs on the judicial file Ex. P-11
(colly.).
13. PW9 HC Rajesh deposed that on 14.03.2019, he was
posted with Narcotic Cell, Crime Branch, Daryaganj Delhi as
Constable and on that day at about 10.20 pm, ASI Ashok
Kumar called him and Ct. Pankaj and Ct. Sunil Kumar in his
Page no. 14
office and informed that he had received a secret information
that two persons namely Arvind Yadav and Monu, who resided
in Munirka and involved in trade of cocaine with their one more
associate Shrikant in Delhi. He further deposed that ASI Ashok
Kumar further told them that as per secret information accused
Arvind Yadav and Monu would come to supply Cocaine
between 11.00 pm to midnight to someone near SDM office
Geeta Colony in a Scorpio Car bearing no. DL 8CAQ 9099 and
at the said time the secret informer was also present there and
ASI Ashok Kumar prepared raiding party including him, Ct.
Sunil and Ct. Pankaj and ASI Ashok Kumar took IO bag, field
testing kit and electronic weighing machine and departed from
office vide DD No.27 at about 10.35 pm for the spot in a private
car. He further deposed that ASI Ashok Kumar had requested 4-
5 public persons to join the raiding party after telling them about
the secret information at Shantivan Red light Signal but no one
had agreed and left after telling about their genuine difficulties
and they reached at the spot near SDM Office Geeta Colony at
about 11.00 pm and stopped their vehicle at a side on the road
near SDM office Geeta Colony and started waiting the accused
persons / Scorpio Car as per secret information. He further
deposed that at about 11.30 pm, Scorpio car bearing no. DL
8CAQ 9099 was seen coming from the side of Pusta Road and
on seeing the said car, secret informer pointed out it as the
same in which accused Arvind and Monu were coming and
secret informer disclosed that the person sitting on the driver
seat was Monu and the person sitting on the front passenger
seat was accused Arvind Yadav and thereafter, secret informer
left their car and went towards Pusta Road. He further deposed
that when Scorpio passed their vehicle, they chased it and
stopped at a distance of 40-50 meters after putting their vehicle
Page no. 15
in front of Scorpio car and they apprehended ou accused Arvind
Yadav and Monu from said Scorpio car at about 11.35 pm. He
further deposed that ASI Ashok Kumar confirmed names and
addresses of accused persons and the person sitting on the
driver seat disclosed his name as Mohan Rai and the person
sitting near him disclosed his name as Arvind Yadav and
thereafter, ASI Ashok Kumar took search of the Scorpio car and
a black heavy polythene was found from the dashboard of the
Scorpio car containing two transparent polythenes having white
powder. He further deposed that ASI Ashok Kumar opened the
transparent polythenes and checked the powder through field
testing kit and same was found to be cocaine and the
transparent polythenes containing cocaine were given mark A
and B and on being weighed the cocaine in the transparent
polythenes were found 200-200 grams of each polythenes. He
further deposed that ASI Ashok Kumar had drawn two samples
of cocaine from polythene mark A of 5-5 grams each and gave
mark A1 and A2 to the samples and the remaining 190 grams
cocaine kept in transparent polythenes mark A was tied with
rubber band. He further deposed that ASI Ashok Kumar
converted mark A1, A2 in pullandas. He further deposed that
ASI Ashok Kumar drawn two samples of cocaine from
polythene mark B of 5-5 grams each and gave mark B1 and B2
to the samples and the remaining 190 grams cocaine kept in
transparent polythenes mark B was tied with rubber band and
ASI Ashok Kumar converted mark B1 and B2 in pullandas. He
further deposed that ASI Ashok Kumar kept polythenes
containing cocaine mark A and B in black polythene and
converted into cloth parcel and it was given mark C and he filled
form FSL and sealed all the parcels and FSL Form with his seal
6CPS/NB/DELHI and seized vide seizure memo already
Page no. 16
Ex.PW2/C and seal after use was handed over to him by ASI
Ashok Kumar and the Scorpio car bearing no. DL 8CAQ 9099
was also seized through seizure memo Ex.PW2/D. He further
deposed that ASI Ashok Kumar apprised accused persons
Mohan Rai Arora and Arvind Yadav about the secret information
and told them that there are chances of more recovery of
contraband from them and therefore, their search would be
taken and it is their legal right to give their search in presence of
Gazetted Officer or Magistrate and they could also take search
of the police officers. He further deposed that ASI Ashok Kumar
served notices under section 50 of the NDPS Act to both
accused persons Arvind Yadav and Mohan Rai Arora @ Monu
and carbon copy of the notices Ex. PW2/E and Ex. PW2/F
respectively and both the accused persons refused to avail their
legal right and their replies were recorded on the back of the
carbon copy Ex.PW2/G and Ex. PW2/H respectively. He further
deposed that they took accused persons to their office at
Kotwali and Ct. Sunil was driving Scorpio car of accused
persons and Ct. Pankaj was driving white Swift Dzire car in
which raiding team came to the spot and they reached their
office at about 2.30 am on 15.03.2019. He further deposed that
both the accused persons were produced before ACP Sh. R.K.
Ojha in his office and their search was effected but no other
contraband was found from them and ASI Ashok Kumar
prepared memos of non-recovery Ex. PW2/I and Ex. PW2/J. He
further deposed that ASI Ashok Kumar prepared rukka and
handed over to Ct. Sunil along with all the sealed parcels of
case property, FSL Form and photocopy of seizure memo and
sent him to PS Crime Branch at 4.30 am with the directions to
hand over the rukka to duty officer and case property to SHO
PS Crime Branch. He further deposed that Ct. Sunil returned to
Page no. 17
the office at about 7.45 am and handed over tehrir and copy of
FIR to SI Arvind Kumar as investigation was assigned to him.
He further deposed that SI Arvind Kumar arrested accused
Arvind Yadav at about 10.00 am and conducted his personal
search and accused Mohan Rai Arora was also arrested at
about 11.00 am and his personal search was also conducted
and he signed on the said documents and during personal
search of accused persons, original notice under Section 50 of
the NDPS Act were recovered and thereafter, accused persons
were produced before Inspector Brijpal at about 12.00 noon.
His statement was recorded by the IO from 12:30 pm to 1:00
pm. He identified accused Mohan Rai Arora in the Court and
identity of accused Arvind Yadav was not disputed as he was
interim bail and was hospitalized. Witness also submits that he
can identify the case property but the production of case
property was dispensed with as same has already been
produced before the court and identified by the other witnesses
and ld. counsel for accused persons also not insisted to
produce the same.
14. PW10 ASI Mahesh Chand brought official seal issuance
register for the year 2019 and as per record official seal 6C
P.S./NB/DELHI was issued to ASI Ashok Kumar on 21.02.2019
and ASI Ashok Kumar returned the seal on 12.12.2019 and
copy of the register having the relevant entry is Ex.PW10/A. He
also brought register regarding issuance of electronic weighing
machine for year 2019 and as per report on 14.03.2019 at
10.25 pm, electronic weighing machine was issued to ASI
Ashok Kumar and copy of the register having the relevant entry
at serial no.18 is Ex.PW10/B and ASI Ashok Kumar returned /
deposited the electronic weighing machine in Malkhana on
15.03.2019 at 9.00 pm.
Page no. 18
15. PW11 HC Pankaj deposed that on 18.03.2019, he was
posted with Narcotics Cell Crime Branch, Kotwali, Delhi and on
that day on the instructions of IO, he had taken sample parcels
mark A1 and B1 and Form FSL duly sealed with the seals of 6C
PS NB DELHI and SS pertaining to this case from MHCM PS
Crime Branch Pushp Vihar, New Delhi vide RC No.194/21 and
deposited the same at FSL Rohini against proper receipt and he
handed over the receipt to MHC(M) ASI Jagnarayan after
returning from FSL Rohini and stated that during custody of the
above exhibits, they were not tampered with and they remained
intact.
16. PW12 ACP Satender Sangwan deposed that on
15.03.2019, he was posted as SHO PS Crime Branch, Delhi
and on that day at around 5:30 am, Constable Sunil of Narcotic
Cell came to his office and produced five sealed parcels
pertaining to this case to him along with Form FSL and copy of
seizure memo and the parcels having marked A1, A2 and B1,
B2 and C and the parcels and form FSL were sealed with the
seal impression of 6CPS/NB, Delhi. He further deposed that he
affixed his seal of SS on all the parcels and FSL form and
mentioned FIR Number on the parcels, FSL form and carbon
copy of the seizure memo after ascertaining from duty officer
and also put his signatures on parcels and endorsed copy of
seizure memo and thereafter, he called MHC(M) ASI
Jagnarayan along with register no. 19 and handed over the
parcels, FSL form with copy of seizure memo to him to deposit
in the malkhana and made entry in register no. 19 and signed
on the same. He further deposed that after this, he made GD
No. 3A in Rojnamcha in this regard Ex.PW12/A. Copy of
relevant entry in register no. 19 is Ex.PW13/A. He further
deposed that Constable Sunil was relieved by him and on the
Page no. 19
same day, in the evening IO recorded his statement in his
office.
17. PW13 Retired ASI Jagnarayan deposed that on
15.03.2019, he was posted and working as MHC(M) at PS
Crime Branch New Delhi and on that day Inspector Satender
Sangwan, SHO PS Crime Branch called him in his office along
with register no.19 at about 5.30 am and handed over 5 sealed
pullandas having seals of 6CPS/NB/DELHI and SS having mark
A1, A2, B1, B2 and C along with form FSL having the same seal
initials and copy of seizure memo of this case to him. He
deposited the said articles in Malkhana after making entry in
register no.19 at serial no.3209, which was signed by Inspector
Satender Sangwan Ex.PW13/A (OSR). He further deposed that
on the same day, SI Arvind Kumar deposited one Scorpio Car
and personal search articles of the accused persons in the
malkhana by handing over the same to him and he made entry
in register no. 19 in this regard at serial no.3210 Ex.PW13/B
(OSR). He further deposed that on 18.03.2019, he sent the
pullandas mark A1, B1 sealed with the seal of 6CPS/NB/DELHI
and SS to FSL Rohini vide RC no.194/21/19 through Ct. Pankaj
and he made entry in register no.19 Ex. PW13/C. He further
deposed that Ct. Pankaj produced copy of receipt and
acknowledgment Ex.PW13/D after depositing the said exhibits
in the FSL. He further deposed that on 03.12.2019, he received
FSL result along with two parcels sealed with the seal of FSL
Rohini and handed over the result to the IO and deposited the
parcels in malkhana and he made entry in register no.19 in this
regard. He further deposed that during custody of the above
exhibits, they were not tampered with and remained intact.
18. PW14 ACP Brijpal, Operation Cell Outer North District
deposed that on 14.03.2019, he was posted as Inspector
Page no. 20
Narcotics Cell, Kotwali Daryaganj Delhi and on that day at
about 10.00 pm, he was present in his office and ASI Ashok
Kumar produced an informer before him stating that he had
received a secret information that accused Arvind and Monu
resident of Munirka were indulging in the sale and supply of
cocaine in Delhi and both of them would come near SDM Office
Geeta Colony in between 11.00 pm to 12.00 night and on that
day in their Scorpio car no. DL 8C AQ 9099 to deliver a
consignment of cocaine to some of their customers. He further
deposed that after verifying the facts and contents of the
information from the secret informer, he conveyed the same to
ACP Narcotics Cell Sh. R.K. Ojha through telephone at about
10.10 pm and ACP ordered for conducting raid and taking legal
action and accordingly, he told ASI Ashok Kumar to conduct
raid. He further deposed that ASI Ashok Kumar reduced the
secret information in writing vide DD No.26 at about 10.20 pm
and presented the same before him, which were seen and
signed by him and forwarded by him to ACP Ex. PW2/A. He
further deposed that ASI Ashok Kumar constituted a raiding
party comprising of him, Ct. Sunil and Ct. Rajesh and briefed
them about the secret information and thereafter, raiding party
left the office at about 10.35 pm by a private car bearing no. DL
3CCB 2362 driven by Ct. Pankaj vide DD No.27 along with field
testing kit, IO kit and electronic weighing machine. He further
deposed that on 15.03.2019 at about 12.00 pm, SI Arvind
Kumar produced accused Arvind Yadav and Mohan Rai Arora
before him and narrated the facts about the case and he made
enquiry from accused persons and satisfied himself about the
recovery of 400 grams cocaine from their car. He further
deposed that ASI Ashok Kumar produced special report under
section 57 NDPS Act regarding recovery and seizure of cocaine
Page no. 21
prepared by ASI Ashok Kumar and he perused the report
Ex.PW2/Q and signed on the same and forwarded it to the ACP.
He further deposed that SI Arvind Kumar produced special
report under section 57 NDPS Act regarding arrest of both the
accused persons prepared by SI Arvind Kumar and he perused
the report Ex.PW6/A and signed on the same and forwarded it
to the ACP.
19. PW15 SI Arvind Kumar deposed that on 15.03.2019, he
was posted with Narcotics Cell, Darya Ganj, Delhi and on that
day at about 7.45 am, Ct. Sunil came to him and produced
original rukka and copy of FIR alongwith copies of three DD
entries bearing no. 2, 3, 4 dated 15.03.2019 as investigation of
the present case was marked to him. He further deposed that
he perused the rukka and copy of FIR and ASI Ashok, who
gave the rukka was also present in the office, produced
accused Arvind Yadav and Mohan Rai Arora @ Monu before
him and also produced original seizure memos, carbon copies
of notices under section 50 NDPS Act, two memos regarding
non-recovery and Scorpio car seized by him. He further
deposed that he left both the accused persons in the office in
the custody of staff and reached the spot alongwith ASI Ashok
Kumar and Ct. Pankaj and they reached the spot at about 8.15
am. He prepared site plan at the instance of ASI Ashok Kumar
Ex. PW2/L and thereafter, they came to their office at about
8.45 am and he recorded statement of Ct. Sunil. He further
deposed that he arrested accused Arvind Yadav and Mohan Rai
Arora vide arrest memo Ex. PW2/M & Ex. PW2/O and their
personal search were conducted vide memos Ex. PW2/M1 and
Ex. PW2/P. He recorded disclosure statements of accused
persons Ex. PW2/N and Ex. PW2/P-1. He prepared report
under Section 57 NDPS Act Ex. PW6/A and sent to senior
Page no. 22
officers and both the accused persons were produced before
Inspector Brij Pal, who made enquiry from them. He recorded
the statement of Inspector Brij Pal and witnesses including Ct.
Rajesh, ASI Ashok Kumar and ACP R.K. Ojha and thereafter,
both the accused persons were produced before the court and
their police custody remand for two days was obtained. He
further deposed that both accused persons were brought to
their office and after leaving them, he went to PS Crime Branch,
Pushap Vihar and deposited the personal search articles and
Scorpio car alongwith copy of seizure memo of Scorpio car in
malkhana. He further deposed that on 15.03.2019, he obtained
two days PC of accused accused Arvind Yadav and Mohan Rai
Arora@ Monu and on 16.03.2019, he searched co-accused
person Shrikant Rangnathan and prepared pointing out memo
at the instance of both accused persons Arvind Yadav and
Mohan Rai Arora Ex. PW15/1. He further deposed that on
verification Ex.PW7/A, it revealed that vehicle bearing no. DL
8C AQ 9099 belonged to accused Arvind Yadav and Mohan Rai
Arora. He obtained NBW of co-accused Shrikant Rangnathan
and also got conducted proceedings under Section 82 Cr.PC
against accused Shrikant Rangnathan. He also obtained
certified copy of CDR of mobile number 9999901818 of
accused Arvind Yadav and mobile number 8860127771 of
accused Mohan Rai Arora and mobile number 9999259480 of
accused Shrikant Rangnathan. He further deposed that on
analysis of CDR, it was revealed that accused persons Arvind
Yadav and Mohan Rai Arora were in contact with each other at
relevant time and as per location chart, it was further revealed
that accused Rangnathan was in contact with accused Arvind
and Mohan Rai Arora. He prepared chargesheet in the present
matter and filed before the court. He further deposed that on
Page no. 23
15.09.2019, accused Shrikant Rangnathan was detained at IGI
Airport and arrested in this case on 15.09.2019 at 12.05 pm
(afternoon) vide arrest memo Ex. PW15/4 and his personal
search was conducted vide memo Ex. PW15/5. He further
deposed that accused Shrikan Rangnathan was produced
before Inspector Brijpal Singh in the office Narcotics Cell, Crime
branch and accused was sent to JC for one day. He further
deposed that on 16.09.2019, two days PC remand of accused
Rangnathan was taken and report under section 57 NDPS Act
Ex. PW6/B is prepared. He further deposed that nothing
incriminating was recovered from the search of house of
accused Shrikant Rangnathan on 17.09.2019 and non-recovery
memo of accused Rangnathan Ex. PW15/6 was prepared. He
further deposed that supplementary disclosure statement of
accused Shrikant Rangnathan Ex.PW15/7 was recorded and he
obtained account statements of accused persons namely Arvind
Yadav and Shrikant Rangnathan from their respective banks
Ex. PW15/8 (colly). Ld. Defence Counsel objected to regarding
the admissibility of evidence and mode of proof. He further
deposed that as per the account statement, there was monetary
transaction between them. He obtained FSL result Ex. PW15/9.
Ld. Defence counsel objected to regarding the admissibility of
evidence and mode of proof. He further deposed that on
15.09.2019, he seized original passport of accused Shrikant
Rangnathan vide seizure memo Ex. PW15/10 and recorded
statement of witnesses. He also filed supplementary
chargesheet qua co-accused Ranganathan. He identified
accused persons namely Arvind Yadav and Mohan Rai Arora in
the Court.
20. PW16 Dr. Kavita Goyal, Assistant Director (Chemistry),
FSL, Rohini, Delhi deposed that on 18.03.2019, two sealed
Page no. 24
cloth parcels in connection with the present matter were
received in her office, which were assigned to her for
examination. She further deposed that the seals were found
intact as tallied with the forwarded authority specimen seal. She
further deposed that parcel A-1 contained Ex. A-1 i.e. white
colour powdery material with lumps and parcel B-1 contained
Ex.B-1 i.e. white colour powdery material with lumps. She
further deposed that on Chemcial, TLC & GC-MS examination,
exhibits A-1 & B-1 found containing ‘Cocaine 29.9% & 59.4%
respectively. After the examination, the remnants of the exhibits
have been sealed with the seal of “K.G. FSL Delhi”. She
prepared detailed report in this regard Ex. PW15/9.
21. On 14.02.2024, Ld. counsels for accused persons
admitted documents i.e. (i) copy of account opening form of
account no. 05881530004712 Ex.A1, (ii) certified copy of
account details from 01.12.2018 to 14.03.2019 Ex.A2, (iii)
certificate under Section 65B Indian Evidence Act Ex.A3, (iv)
Copy of account opening form of account no.
163710100021444 Ex.A4, (v) certified copy of account details
from 01.12.2018 to 14.03.2019 Ex.A5, (vi) certificate under
Section 65B Indian Evidence Act Ex.A6, (vii) certified copy of
account opening from of account no. 510101000601526 Ex.A7,
(viii) PAN card details of account no. 510101000601526 Ex.A8,
(ix) certified copy of account transaction details from
01.12.2018 to 14.03.2019 Ex.A9, (x) certificate under Section
65B Indian Evidence Act Ex.A10 and (xi) reply given by HDFC
Bank with certified copy of cheque no. 344857 Ex.A11.
STATEMENT OF ACCUSED PERSONS U/S 313
Cr.P.C.
22. After completion of prosecution evidence, statement of
accused persons under Section 313 Code of Criminal
Page no. 25
Procedure were recorded. Accused persons submitted that they
are innocent and have not committed any offence and also
have been falsely implicated in this case by the police
concerned. Accused Arvind Yadav submitted that on
14.03.2019, somewhere around 6 pm, Mohan Rai Arora called
him outside his society Munirka, DDA Flats. His car headlight
had broken and Mohan Rai Arora deals in car spare parts, that
is why he asked him to bring the same. He had brought the
brochure for the car headlights. He deals and trade in garments
and also an election campaigner of BJP. As he came outside his
house, he saw Mohan standing outside. As he got out of his car,
5-6 policemen, who were in civil dress apprehended/ caught
both of them and they made them to sit in his own car on the
rear seat. He further submitted that 3-4 policemen also sat with
them in the same car and the others followed them in a white
Santro Car. He further submitted that the police official who sat
with them in the car took their phones and put them on flight
mode. Then, they took them to Darya Ganj Police Station,
where they were questioned as to how do he know Srikant
Rangnathan, who used to reside in the same society, where he
resided. They asked him as to why he had given him a cheque
of Rs. 8 Lacs. Arvind Yadav and Srikant Rangnathan had good
friendly relations as they used to reside in the same society.
Generally, Srikant Rangnathan used to ask him for financial
help for his business, having good relations with him, he used
to give him friendly loan and further the above-said cheque
amounting Rs. 8 Lacs was also given for the same purpose.
Then, the police asked him whether he was also involved in any
drugs supply, he replied that he had never held any cigarette in
his hand. Further, they questioned him about his family
members and he replied to the same that his wife is
Page no. 26
homemaker and his son used to study in DPS School, R.K.
Puram. Then, the aforesaid officials asked him to pay hefty
amount as bribe for letting him go. They also asked him to pay
lesser amount for implicating him in an offence related to
intermediate quantity and at around 11.30 pm, they were taken
in white Santro to the India Gate area followed by his car driven
by one of the police personnel because he had told them that
there is GPS installed in his car. Then, they switched on their
phone and started receiving every call, however, they were not
replying to the callers. Thereafter, they made calls from his
phone to Mohan’s phone and vice versa in order to create
evidence. Then, they drove them to the area of Geeta Colony
and parked the car in a secluded place and made them to sit in
the car for sometime. There also they kept on receiving the calls
on his phone. Then, they took them to PS Darya Ganj. His car
was left parked at Geeta Colony area with two constables. In
the meantime, his family members, who were looking for him
reached Geeta Colony alongwith some police personnel and
opened the gate of car. When the police personnel
accompanying his family members disclosed their identity to the
constables sitting in the car. The constables immediately
informed the police personnel at Darya Ganj Police
Station/Crime Branch office, the police officials at Darya Ganj
immediately lodged the FIR showing the alleged recovery of
contraband from him. The said contraband was also not shown
to him. They were made to sign on many blank papers. ACP
Ojha was not present at any point of time during the entire
process. They were produced before the ACP in the next
morning. Next afternoon, Inspector Brijpal made them to write
and sign on a paper that he does not want himself to be
searched before a Gazetted Officer or any Magistrate.
Page no. 27
Thereafter, Inspector Brijpal took them to the house of Srikant
Rangnathan, where he called him up and was informed that he
is out of India. He has been falsely implicated by Inspector
Brijpal (promoted to ACP thereafter) as he refused to pay bribe
to the police officials for letting him off. ACP Brijpal has also
been arrested in some other case by CBI in an extortion case.
Accused persons stated that being interested police witnesses,
they have deposed falsely against them. Accused persons did
not prefer to lead defence evidence.
23. Ld. APP has argued that the prosecution witnesses have
proved beyond reasonable doubt that the accused persons
namely Arvind Yadav and Mohan Rai Arora were apprehended
with 400 grams of Cocaine, which comes under commercial
quantity. It has been argued that the testimonies of the
prosecution witnesses have remained unrebutted and
uncontroverted. It is further submitted that testimonies of
prosecution witnesses have proved beyond reasonable doubt
that on receipt of a secret information, 400 gram of cocaine was
recovered on 14.03.2019 from the car of accused Arvind Yadav
driven by accused Mohan Rai Arora near SDM office, Geeta
Colony, Delhi and both the accused were apprehended
alongwith the car by the raiding team. It is argued that all the
mandatory provisions of the NDPS Act were duly complied with
by the raiding party.
24. On the other hand, learned counsels for the accused
submitted that the applicant has been falsely implicated in the
present case. He submits that there are serious infirmities in the
case of the prosecution. They submit that even though the
purported recovery happened in a public place, there are no
independent witnesses. It is further submitted that in the
present case, upon seizure, the compliance of Section 52A of
Page no. 28
the NDPS Act was not made and the sampling procedure was
not carried out before the learned Magistrate, which shows that
accused is innocent and the entire proceedings were conducted
at the police station by the investigating officers. It is argued
that the accused persons have been falsely implicated as they
did not accede to the illegal demand made by the police
officials.
25. Arguments have been argued. Record perused.
26. In the present case, the prosecution witnesses PW2,
PW8 & PW9 have deposed that on 14.03.2019 at about 9:45
pm, secret informer came to the office of PW2 and informed
that Monu, Arvind and Srikant resident of Munirka used to deal
in cocaine in wholesale and purchoon and on that day, they
would come in Scorpio car bearing no. DL 8CAQ 9099 silver
colour at Geeta Colony, near SDM office between 11:00 pm to
12:00 night and if nakabandi is done, they could be
apprehended and cocaine would be recovered from their car.
PW2 further deposed that after being satisfied with the secret
information, he produced the secret informer before Inspector
Brijpal in his office and also communicated the secret
information to him. PW2 further deposed that Inspector Brijpal
after being satisfied informed ACP Sh. R.K. Ojha regarding the
secret information, who directed to take action immediately and
the information was entered in roznamcha vide DD No.26 at
10:20 pm and copy thereof was produced before Inspector
Brijpal in compliance of section 42 of the NDPS Act Ex.PW2/A.
PW2 further deposed that on the instructions of Inspector
Brijpal, a raiding party was prepared including him, PW8
Constable Sunil, PW9 Constable Rajesh and PW11 Constable
Pankaj and he took IO bag, field testing kit and electronic
weighing scale and made departure entry in roznamcha vide
Page no. 29
DD No.27 at 10:35 pm Ex. PW2/B. PW2, PW8 & PW9 have
further deposed that they left their office along with secret
informer in Swift Dzire car driven by PW-11, Constable Pankaj
and in the way they stopped the vehicle at Shantivan red light,
where PW2 asked four public persons to join the raiding party
after telling them about the secret information but none of them
agreed to join the raiding party and left after telling their genuine
difficulties and due to paucity of time notice could not be served
upon them. These witnesses have further deposed that due to
lack of time search warrant for the search of vehicle of the
accused persons could not be obtained and thereafter, they
reached near SDM office, Geeta Colony at about 11:00 pm and
parked their car on the road side towards Geeta Colony and
started waiting for the accused persons in their car. PW2, PW8
and PW9 further deposed that at about 11:30 pm, Scorpio car
bearing no. DL 8CAQ 9099 was seen coming from Pusta Road
at a slow speed and secret informer identified the driver as
Monu @ Mohan Rai Arora and the person sitting on the seat
adjacent to driver as Arvind Yadav. They further deposed that
thereafter secret informer left from there and when the Scorpio
car crossed the police vehicle, raiding team intercepted the
Scorpio car with their car and apprehended both the accused
persons namely Mohan Rai Arora and Arvind Yadav. PW2 took
the search of the Scorpio car bearing no. DL 8CAQ 9099 and
found one heavy black polythene in the dashboard of the
Scorpio car. They further deposed that on being checked said
polythene, two transparent polyethene containing white powder
was found and the substance / white powder of the transparent
polyethene were tested through field testing kit, which was
found to be cocaine and on being weighed, 200 grams of
cocaine was found in each polythene marked as mark A and
Page no. 30
mark B. They further deposed that PW2 took two samples of 5-
gram each from polythene mark A in small polyethene which
were tied with rubber band and converted into cloth pullandas
which were marked as Mark A1 and A2 and 190 grams cocaine
was left in the transparent polythene mark A. They further
deposed that PW2 took two samples of 5 gram each from
polythene mark B in small polythenes which were tied with
rubber band and converted into cloth pullandas which were
marked as mark B1 and B2 and 190 grams cocaine was left in
the transparent polythene mark B. PW2 further deposed that he
sealed all the pullandas with the seal of 6CPS/ NB DELHI and
filled Form FSL and sealed it with the same seal. PW2 has
deposed that all the sealed pullandas and Form FSL were taken
into police possession vide seizure memo Ex. PW2/C and PW2
handed over the seal to Constable Rajesh and Scorpio car
bearing no. DL 8CAQ 9099 was seized vide seizure memo Ex.
PW2/D. PW2, PW8 & PW9 have further deposed that PW2
apprised accused persons about the secret information and told
them that there are chances of more recovery of contraband
from them, hence, their search would be taken and it was their
legal right to give their search in presence of gazetted officer or
Magistrate and they can also take search of the police officers
and PW2 served notice under section 50 of the NDPS Act to
accused persons Arvind Yadav and Mohan Rai Arora @ Monu
and receiving of the accused persons were taken on the carbon
copy of the notices, which are Ex. PW2/E and Ex. PW2/F. PW2,
PW8 & PW9 have further deposed that both accused persons
refused to avail their legal right and recorded their replies in
their own handwritings on the back of the carbon copy of the
notices Ex.PW2/G and Ex. PW2/H. These witnesses have
further deposed that they took accused persons to their office at
Page no. 31
Kotwali and produced them before ACP Sh. R.K. Ojha in his
office, where their personal search was carried out, however no
contraband was recovered from them. They further deposed
that thereafter, PW2 prepared rukka Ex.PW2/K and handed
over rukka, sealed parcels of case property, FSL Form and
photocopy of seizure memo to Ct. Sunil and sent him to PS
Crime Branch at 4.30 am with the directions to hand over the
rukka to duty officer and remaining articles/documents to SHO
PS Crime Branch. They have further deposed that after
registration of FIR, investigation was assigned to SI Arvind
Kumar, who carried out further investigation.
27. PW2 has deposed that he handed over the documents
prepared by him and custody of the accused persons to SI
Arvind Kumar and also handed over keys of the Scorpio car to
him. He further deposed that he along with SI Arvind Kumar
went to the spot and SI Arvind Kumar inspected the spot at his
instance and prepared site plan Ex. PW2/L and thereafter they
returned to office of Narcotic Cell. PW2 further deposed that SI
Arvind interrogated accused Arvind Yadav and arrested him at
about 10 am on 15.03.2019 vide arrest memo Ex.PW2/M, his
personal search was effected vide memo Ex.PW2/M1 and
disclosure statement was recorded vide memo Ex.PW2/N. PW2
has further deposed that thereafter, SI Arvind interrogated
accused Mohan Rai Arora @ Monu and arrested him at about
11am on 15.03.2019 vide arrest memo Ex.PW2/O, his personal
search was effected vide memo Ex.PW2/P and disclosure
statement was recorded vide memo Ex.PW2/P1. PW2 has
further deposed that that both accused persons Arvind Yadav
and Mohan Rai Arora were produced before Inspector Brijpal.
PW2 submitted report under section 57 NDPS Act to senior
officers which is Ex.PW2/Q. Witnesses PW2, PW8 & PW9
Page no. 32
identified both accused persons Mohan Rai Arora @ Monu and
Arvind Yadav before the Court.
28. The evidence led by the prosecution shows that there is
no public witness. It is established proposition of law vide
catena of judgments viz. Dharampal Singhv. State of
Punjab, (2010) 9 SCC 608; Raveen Kumar v. State of
Himachal Pradesh, 2020 SCC, Jarnail Singh v. State of
Punjab, (2011) 3 SCC 521; Sumit Tomar v. State of
Punjab, (2013) 1 SCC 395 and Mukesh Singh v. State (NCT
of Delhi), (2020) 10 SCC 120 OnLine SC 869 that the case of
the prosecution cannot be rejected merely on account of the
case being tethered on the testimonies of official witnesses and
non-examination of independent witnesses would thus not be
fatal to the prosecution’s case. The testimonies of the official
witnesses cannot be disregarded merely on account of them
being police officials or due to absence of corroboration from
independent witnesses and the prosecution may furnish an
explanation to justify the non-joinder of public witnesses during
the course of the trial.
29. The Hon’ble Apex Court In the case of Raveen
Kumar v. State of Himachal Pradesh(supra), while dealing
with the question of whether absence of independent witnesses
is fatal to the prosecution’s case observed that while reliable
testimonies of police officials can form the basis of conviction,
lack of corroboration from independent witnesses casts an
additional duty on the Court to exercise a higher degree of
caution while scrutinizing the testimonies of the official
witnesses. Thus, the Court has to see whether the evidence of
prosecution witnesses has furnished an explanation to justify
the non-joinder of public witnesses. Further the testimonies of
the prosecution witnesses have to be scrutinized by exercising
Page no. 33
higher degree of caution.
30. In the present case, the timeline as established by the
testimonies of the prosecution witnesses shows that at about
9:45 PM a secret information was received by PW2, who
thereafter produced the secret informer before Inspector Brijpal
in his office and shared the secret information with him.
Inspector Brijpal after being satisfied informed ACP Sh. R.K.
Ojha regarding the secret information, who directed to take the
action immediately. PW2 entered the secret information in the
roznamcha vide DD No. 26 at 10:20 PM. Raiding team left for
the spot at 10:35 PM as per DD No. 27. PW2, PW8 & PW9
have deposed in their testimonies that raiding team stopped at
Shantivan Red light and PW2, ASI Ashok Kumar asked four
public persons to join the raiding party after telling them about
the secret information, but none of them agreed to join the
raiding team. During his cross-examination, PW2 stated that
notices are kept in the car/vehicle in which police party go for
raid, to be served upon the public witnesses, who do not accept
to join the investigation and on the date of incident, the notices
were also kept in the Swift Dzire Car, but he did not serve the
notices on the public witnessed, who refused to join the
investigation. All the witnesses have admitted that though
efforts were made by the IO to join the publice witnesses at
Shantivan redlight, however no public witnesses could be
joined. Thus, the court is required to exercise higher degree of
caution, while scrutinizing the testimonies of the prosecution
witness.
31. The presumption of innocence until proven guilty is the
cardinal principle of the criminal justice system. However,
considering the adverse effect of offences under the NDPS Act
on the security of the individual, society, economy and country,
Page no. 34
which not only endanger the society at present, but hollows out
generations, legislature has provided in the form of Section 54
of the Act for a reversal burden of proof upon accused, contrary
to normal rule of criminal jurisprudence for presumption of
innocence unless proved guilty. Section 35 of the Act provides
for presumption of culpable state of mind. The presumptions
under Section 35 and Section 54 of the Act, however, does not
dispense with the requirement of the prosecution to establish a
prima facie case in the backdrop of sufficient, cogent and clear
evidence with observance of mandatory provisions under
sections 42, 50, 52 and 57 of the Act, where after the accused
has to be called to account for his possession. The Hon’ble
Supreme Court in Naresh Kumar Vs. State of Himachal Pradesh,
MANU/SC/0908/2017 observed as under:
9. The presumption against the Accused of culpability
Under Section 35, and Under Section 54 of the Act to
explain possession satisfactorily, are rebuttable. It does
not dispense with the obligation of the prosecution to
prove the charge beyond all reasonable doubt. The
presumptive provision with reverse burden of proof, does
not sanction conviction on basis of preponderance of
probability. Section 35 (2) provides that a fact can be
said to have been proved if it is established
beyond reasonable doubt and not on preponderance of
probability. That the right of the Accused to a fair trial
could not be whittled down under the Act was considered
in Noor Aga v. State of Punjab MANU/SC/2913/2008 :
(2008) 16 SCC 417, observing:
58 …An initial burden exists upon the prosecution and
only when it stands satisfied, would the legal burden
shift. Even then, the standard of proof required for the
Accused to prove his innocence is not as high as that of
the prosecution. Whereas the standard of proof required
to prove the guilt of the Accused on the prosecution is
“beyond all reasonable doubt” but it is “preponderance of
probability” on the accused. If the prosecution fails to
prove the foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is possession
of contraband by the Accused cannot be said to have
been established.
Page no. 35
59. With a view to bring within its purview the
requirements of Section 54 of the Act, element of
possession of the contraband was essential so as to shift
the burden on the accused. The provisions being
exceptions to the general rule, the generality thereof
would continue to be operative, namely, the element of
possession will have to be proved beyond reasonable
doubt.
32. During his examination in chief, PW2 deposed that
secret information was received that Monu, Arvind and
Srikant resident of Munrika, who used to deal in cocaine
would come in Silver Colour scorpio on 14.03.2019 near
SDM office, Geeta Colony between 11:00 PM to 12:00 PM,
which is contrary to the record as DD entry no. 26 dated
14.03.2019, Ex. PW2/A shows that secret information was
received that accused Arvind Yadav and Mohan Rai Arora
would come to deliver cocaine on the said date, time and
place. PW8 & PW9 in their examination in chief have
deposed that IO called them and constable Pankaj to his
office and shared the secret information, while constable
Pankaj, who has deposed as PW11 stated in his examination
in chief dated 19.07.2022 that IO did not tell him about the
secret information. PW11 has deposed that he was only told
by the IO that he had to drive the vehicle.
33. Both the accused persons Arvind Yadav and Mohan
Rai Arora in their statements recorded under section 313
Cr.P.C. have levelled allegations against the police officials.
Accused Arvind Yadav stated that on 14.03.2019, accused
Mohan Rai Arora called him outside around 6 PM. Infact
there are two calls from accused Mohan Rai Arora on the
mobile of accused Arvind Yadav between 6:31 to 6:37 PM
and location of both the mobile phones of both these accused
Page no. 36
persons have been shown at Munrika village at the same
time as per Ex.PW1/B and Ex.PW1/C. Accused Arvind Yadav
further stated in his statement that his car’s headlight was
broken and thereafter he had asked accused Mohan Rai
Arora to bring the same as he deals in the car spare parts.
He further stated that when he got out of his car, 5-6
policemen, who were in civil dress apprehended/caught both
of them and made them to sit in his own car on the rear seat
and the others followed them in white santro car. He further
stated that the police official who sat with them in the car took
their phones and put them on flight mode. Then, they took
them to Darya Ganj Police Station, where they were questioned
as to how does he know Srikant Rangnathan, who used to
reside in the same society, where he resided. They asked him
as to why he had given him a cheque of Rs. 8 Lacs. Arvind
Yadav stated that he and Srikant Rangnathan had good friendly
relations as they used to reside in the same society and Srikant
Rangnathan used to ask him for financial help for his business,
having good relations with him, he used to give him friendly
loan and further the above-said cheque amounting Rs. 8 Lacs
was also given for the same purpose. He further stated that the
police asked him whether he was also involved in any drugs
supply, he replied that he had never held any cigarette in his
hand. He further stated that police officials questioned him
about his family members and he replied to the same that his
wife is homemaker and his son used to study in DPS School,
R.K. Puram. He has alleged that police officials asked him to
pay hefty amount as bribe for letting him go. He further stated
that police officials also asked him to pay lesser amount for
implicating him in an offence related to intermediate quantity
Page no. 37
and at around 11.30 pm, they were taken in white Santro to the
India Gate area followed by his car driven by one of the police
personnel because he had told them that there is GPS installed
in his car. He further stated that police officials switched on their
phone and started receiving every call, however, they were not
replying to the callers. Thereafter, they made calls from his
phone to Mohan’s phone and vice versa in order to create
evidence. He further stated that the police officials then drove
them to the area of Geeta Colony and parked the car in a
secluded place and made them to sit in the car for sometime.
He further stated that there also they kept on receiving the calls
on his phone. Thereafter police officials took them to PS Darya
Ganj and His car was left parked at Geeta Colony area with two
constables. In the meantime, his family members, who were
looking for him reached Geeta Colony alongwith some police
personnel and opened the gate of car. When the police
personnel accompanying his family members disclosed their
identity to the constables sitting in the car. The constables
immediately informed the police personnel at Darya Ganj Police
Station/Crime Branch office, the police officials at Darya Ganj
immediately lodged the FIR showing the alleged recovery of
contraband from him. He has alleged that said contraband was
also not shown to him. He stated that they were made to sign
on many blank papers. He further stated that ACP Ojha was
not present at any point of time during the entire process and
they were produced before the ACP in the next morning. He
further stated that next afternoon, Inspector Brijpal made them
to write and sign on a paper that he does not want himself to be
searched before a Gazetted Officer or any Magistrate. He
further stated that thereafter, Inspector Brijpal took them to the
house of Srikant Rangnathan, where he called him up and was
Page no. 38
informed that he is out of India. Accused stated that he has
been falsely implicated by Inspector Brijpal (promoted to ACP
thereafter) as he refused to pay bribe to the police officials for
letting him off. He alleged that ACP Brijpal has also been
arrested in some other case by CBI in an extortion case.
Accused Mohan Rai Arora has also given similar version of the
events in his statement under section 313 Cr.P.C.
34. CDR of the accused persons, which has been relied upon
by the prosecution shows that as per Ex.PW1/B, there are as
many as 17 calls between the accused Arvind Yadav and
Mohan Rai Arora between 18:37:00 to 22:59:28, however,
interestingly during this period, the locations of both the
accused persons have been identical. Even at 22:59:28, the
location of both the accused persons are shown to be identical.
At 23:00:36, another call is shown between the accused
persons and there locations though near are not identical.
However again at 23:02:09, there location is shown to be same.
It seems illogical that two individuals will make 17 calls to each
other, while being at the same locations, however this cannot
be the sole basis for disbelieving the case of the prosecution. In
this regard, it is further pertinent to refer to the personal search
memo Ex.PW2/P and Ex.PW2/M1. These seizure memos
shows that mobile phones of accused Mohan Rai Arora and
accused Arvind Yadav were seized by second IO, SI Arvind on
15.03.2019 after their formal arrest at 11AM and 10 AM
respectively. There is a note in both the search memos, which
states that both the mobile phones have been kept switched on,
for investigation and shall be deposited later. In his examination
in chief, IO, SI Arvind, who deposed as PW15 has stated that
he prepared the arrest memos and personal search memos of
the accused persons. PW9, who was part of the raiding team
Page no. 39
during his cross-examination stated that several phone calls
were coming on the phone of the accused persons after their
apprehension and IO, ASI Ashok Kumar seized the same from
them. IO, ASI Ashok Kumar, who deposed as PW2 in his cross-
examination, firstly stated that mobile phones of the accused
persons were seized by IO, SI Arvind Kumar and then he again
said that mobile phones were seized by him and after switching
off the same, same were handed over to IO, SI Arvind Kumar. In
view of the testimonies of PW2 & PW9, there appears stark
contradictions with regard to the seizure of mobile phones of
the accused persons and the same, when seen together with
the identical locations of the accused persons, when calls are
shown to have been exchanged between them have created a
dent in the case of the prosecution.
35. It is also pertinent to observe that PW11, during his cross-
examination stated that accused persons were made to sit in
the vehicle driven by him at about 12:30 am on 15.03.2019 and
ASI Ashok Kumar also sat in the vehicle. He further stated that
IO, ASI Ashok Kumar got out of the vehicle in between. He
further deposed that he does not remember, whether accused
persons also got down in between or not. The testimonies of
PW2, PW8 & PW9 are completely silent in this regard. There is
no mention in the entire chargesheet that after the
apprehension of the accused persons at the spot, IO left the
police vehicle at any point of time before reaching the Narcotics
Cell, Kotwali. At this stage, it is also relevant to observe that no
seal handing over memo prepared by ASI Ashok Kumar has
been produced on record. The recovery of contraband from an
accused forms the substratum of presumption under the NDPS
Act that the accused is guilty of an offence under the Act. Once
recovery of contraband from the accused has been shown,
Page no. 40
presumptions under section 35 and 54 of the Act put a reverse
burden of proof on the accused. It is unclear from the testimony
of the PW11, whether IO left the case property in the car or
carried the same with him, while getting out of the vehicle,
however in both the scenarios, the prosecution, which is
required to prove the factum of recovery of contraband from the
accused persons, before the presumptions under the Act comes
into operation, is found to be lacking in meeting the standard of
‘beyond reasonable doubt’, especially in a case, when there is
clear violation of section 52A of the NDPS Act.
36. It is also pertinent to observe that as per case of the
prosecution, notices under section 50 NDPS Act were served
upon both the accused persons, which are Ex.PW2/F and
Ex.PW2/E at the spot by PW2, ASI Ashok Kumar. However,
Ex.PW2/I and Ex.PW2/J, which are the non-recovery memos
state that in presence of the following witnesses personal
search of the accused persons Arvind Yadav and Mohan Rai
Arora was carried out, after serving upon them the notice under
section 50 NDPS Act, but no contraband was recovered. ACP
R.K. Ojha has also signed Ex.PW2/I & Ex.PW2/J as a witness.
ACP Ojha as per the prosecution story never visited the spot
and his signature on Ex.PW2/I & Ex.PW2/J witnessing the fact
that personal search of the accused persons was carried out in
his presence after serving notice under section 50 NDPS Act
makes it doubtful as to when and where, the notices under
section 50 NDPS Act were served upon the accused persons.
37. There is no DD entry produced on record, which shows
arrival of the raiding team with the accused persons at Narcotic
Cell, Crime branch Delhi. Further photocopy of the MHCM
register, Ex.PW10/B shows only issuance of electronic weighing
machine to ASI Ashok Kumar and does not show issuance of
Page no. 41
field-testing kit to him on 14.03.2019. The testimony of PW11 is
very relevant in this regard. PW11 was part of the raiding team.
In his testimony, he has deposed that he did not notice IO kit.
He also deposed that he could not see whether any articles
were recovered from the car of accused persons. As per
testimony of PW2, PW8, PW9 & PW11, they reached the spot
at about 11PM and remained there for about 3 hours and during
the period, ASI Ashok Kumar conducted search of the vehicle,
tested the contraband in field testing kit, drew samples, filled
FSL form, served notices under section 50 NDPS Act upon the
accused persons. ASI Ashok Kumar PW1 stated during his
cross-examination that he enquired from the accused persons
while coming back to the police station to whom they were
going to deliver the contraband. As per case of prosecution,
accused persons and PW1 arrived in the vehicle driven by
PW11. It raised serious doubt as to the case of prosecution that
PW11, who had remained at the spot for almost 3 hours, neither
witnessed the service of notice u/section 50 NDPS Act upon the
accused persons nor he saw any articles being recovered from
the car of accused Arvind Yadav or the sampling procedure
done by ASI Ashok Kumar at the spot. PW11 though stated that
he could see ASI Ashok Kumar making inquiries from the
accused persons. The glaring inconsistencies in the case of
prosecution have remained unexplained and raises reasonable
doubt as to the version of the prosecution.
38. There is no documentary evidence on record to show that
the proceedings under section 52 A NDPS, Act were
undertaken. Testimony of PW10 is silent in this regard. Section
52 A of NDPS Act provides as under:
Section 52A of the NDPS Act
“52A. Disposal of seized narcotic drugs and
Page no. 42
psychotropic substances.– (1) The Central
Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class
of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of
by such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances,
controlled substances or conveyances has been seized
and forwarded to the officer-in-charge of the nearest
police station or to the officer empowered under
Section 53, the officer referred to in sub-section (1)
shall prepare an inventory of such narcotic drugs,
psychotropic substances, controlled substances or
conveyances containing such details relating to their
description, quality, quantity, mode of packing, marks,
numbers or such other identifying particulars of the
narcotic drugs, psychotropic substances, controlled
substances or conveyances or the packing in which
they are packed, country of origin and other particulars
as the officer referred to in sub-section (1) may
consider relevant to the identity of the narcotic drugs,
psychotropic substances, controlled substances or
conveyances in any proceedings under this Act and
make an application, to any
39. A bare reading of section 52A NDPS, Act reveals that
when any contraband/narcotic substance is seized and
forwarded to the police or to the officer so mentioned under
Section 53, the officer so referred to in sub-section (1) shall
prepare its inventory with details and the description of the
seized substance like quality, quantity, mode of packing,
numbering and identifying marks and then make an application
to any Magistrate for the purposes of certifying its correctness
and for allowing to draw representative samples of such
substances in the presence of the Magistrate and to certify the
Page no. 43
correctness of the list of samples so drawn. The testimony of
prosecution witnesses shows that neither any inventory of
contraband recovered from the accused persons were drawn
nor the same was forwarded to the Magistrate concerned for
the purpose of certifying the correctness of inventory, taking
relevant photographs in his presence and certifying them as
true. Further the samples sent to the FSL were also not drawn
in the presence of magistrate. The Hon’ble Supreme Court in
Mangilal v. State of M.P., 2023 SCC OnLine SC 862 has
observed as under:
6. The obvious reason behind this provision is to inject
fair play in the process of investigation. Section 52A of
the NDPS Act is a mandatory rule of evidence which
requires the physical presence of a Magistrate followed
by an order facilitating his approval either for certifying
an inventory or for a photograph taken apart from list of
samples drawn…
40. The Hon’ble Apex Court recently in Mohd. Khalid v.
State of Telangana, (2024) 5 SCC 393 observed as under:
26. Admittedly, no proceedings under Section 52-A of
the NDPS Act were undertaken by the investigating
officer PW 5 for preparing an inventory and obtaining
samples in the presence of the jurisdictional Magistrate.
In this view of the matter, the FSL report (Ext. P-11) is
nothing but a waste paper and cannot be read in
evidence. The accused A-3 and A-4 were not arrested
at the spot.
41. In the present case, PW2 has deposed that he drew two
samples of 5 gram each from both the packets. The samples
drawn from the first packet were converted into cloth pullindas
marked as Mark A1 and Mark A2 and the remaining contraband
was also sealed in a cloth parcel after taking the same into
white cloth and was marked as Mark A. Similarly the samples
drawn from the second packet were converted into cloth
pullindas marked as Mark B1 and Mark B2 and the remaining
Page no. 44
contraband was also sealed in a cloth parcel after taking the
same into white cloth and was marked as Mark B and all the
parcels were sealed with the seal of 6CPS/NB DELHI. FSL
Report Ex.PW15/9 show Parcel A-1 and B-1 sealed with one
seal of 6CPS/NB DELHI and one seals of SS. PW12, SHO has
deposed that seal of SS was affixed on the parcels by him after
the same were handed over alongwith the FSL Form and copy
of seizure memo by Ct. Sunil. The testimonies of the
prosecution witness shows that no sample was drawn in the
presence of magistrate nor any inventory was prepared by the
SHO. The fact that the samples of the seized contraband were
not drawn in the presence of the Magistrate and the inventory of
the seized contraband was also not certified by the Magistrate
has further shrouded the testimony of prosecution witnesses
under doubt. The Hon’ble Apex Court in Yusuf v. State, 2023
SCC OnLine SC 1328, while discussing the mandatory nature
of Section 52A of the NDPS Act observed as under:
15. In Mohanlal’s case, the apex court while dealing
with Section 52A of the NDPS Act clearly laid down that
it is manifest from the said provision that upon seizure
of the contraband, it has to be forwarded either to the
officer-in-charge of the nearest police station or to the
officer empowered under Section 53 who is obliged to
prepare an inventory of the seized contraband and then
to make an application to the Magistrate for the
purposes of getting its correctness certified. It has been
further laid down that the samples drawn in the
presence of the Magistrate and the list thereof on being
certified alone would constitute primary evidence for the
purposes of the trial.
16. In the absence of any material on record to
establish that the samples of the seized contraband
were drawn in the presence of the Magistrate and that
the inventory of the seized contraband was duly
certified by the Magistrate, it is apparent that the said
seized contraband and the samples drawn therefrom
would not be a valid piece of primary evidence in the
trial. Once there is no primary evidence available, the
Page no. 45
trial as a whole stand vitiated.
42. In the present case, the samples drawn by PW2 on the
spot at time of recovery, were sent to FSL and no samples
were drawn before the Ld. Magistrate therefore in the absence
of sample drawn before Ld. Magistrate and absence of
Inventory of seized contraband duly certified by Ld.
Magistrate as per Section 52A NDPS Act, it is apparent that
the seized contraband and the sample drawn are not a
primary evidence in trial, accordingly, in the absence of
primary evidence with regard to samples, the whole trial stands
vitiated in view of settled legal proposition as discussed by the
Hon’ble Apex Court in Yusuf Vs. State, Supra. Further the
case prosecution is full of inconsistencies as already discussed
and fall short to meet the standard of ‘beyond reasonable
doubt’. Accordingly, the prosecution has failed to prove the
charge under section 21C, 25 & 29 of the NDPS Act against
accused Accused persons namely Arvind Yadav and Mohan Rai
Arora beyond reasonable doubt.
43. In view of the abovesaid discussion, prosecution has
failed to prove its case and accused Arvind Yadav and Mohan
Rai Arora are acquitted of the offences under Section 21C, 25 &
29 of the NDPS Act.
44. File be consigned to Record Room after due compliance.
Announced in the open court
on this 14th Day of February, 2025.
(Alok Shukla)
Additional Session Judge-2/
Special Judge (Narcotic Drugs And Psychotropic
Substances) Digitally
East/Karkardooma/Delhi/14.02.2025 signed by
ALOK SHUKLA
ALOK Date:
Page no. 46 SHUKLA 2025.02.14
17:42:36
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