Delhi District Court
State vs Ashish And Anr on 28 January, 2025
CNR No.DLSH010066242022 Page 1 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA, KARKARDOOMA COURTS, DELHI SC No.389/22 State Vs. Ashish & Anr. FIR No.532/22 PS : Seema Puri U/s.20(b)(ii)(C) NDPS Act In the matter of :- State (through Sh. Jitendra Sharma, Addl. PP) Vs. 1. Ashish S/o. Sh. Narender Kumar R/o. Village Birul, Distt. Fatehpur, Kotwali Fatehpur, UP 2. Mukesh Mishra S/o. Sh. Lakshman Swaroop R/o. Village Bandi, Distt. Fatehpur, Kotwali Fatehpur, UP ....accused persons (Sh. Karan Verma, Advocate for both accused) Date of institution : 07.10.2022 Date when Judgment reserved : 10.01.2025 Date of Judgment : 27.01.2025 JUDGMENT:
–
1. Accused Ashish and Mukesh Mishra are before the Court facing charge under
Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act,
CNR No.DLSH010066242022 Page 2 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
1985 (in short “the NDPS Act“) as it is alleged that total 45.674 Kg Ganja
(commercial quantity) in three pitthu bags (i.e. 25.086 Kg in two pitthu bags
from accused Ashish and 20.588 Kg in one pitthu bag from accused Mukesh
Mishra), was recovered from their possession on 22.06.2022 at about 2.50 a.m.
2. In view of alleged recovery of 45.674 Kg Ganja from both the accused, FIR
No.532/22 was lodged at PS Seema Puri on 22.06.2022. After completion of
investigation, charge-sheet was filed on 07.10.2022. Charge was framed
against the accused persons on 11.07.2023 for offence u/s.20(b)(ii)(C) NDPS
Act, which reads as under :
“That on 22.06.2022 at about 2.50 AM at in front of Kalyan Hospital, Old Seemapuri
Roundabout, Delhi within the jurisdiction of PS.Seemapuri, you both were apprehended
by the police officials of P.S.Seemapuri during patrolling, when you both were standing
in front of Kalyan Hospital with three bags; you accused Ashish was found carrying
two pithu bag of green color and black color and on checking, it was found containing
total 25.086 Kilograms of Ganja while you accused Mukesh Mishra was found carrying
one green color bag and on checking, it was found in possession of 20.588 Kilograms
of Ganja, which is in contravention of provisions of NDPS Act and, thereby you
committed an offence punishable under Section 20 (b) (ii) (C) of NDPS Act, 1985 and
within the cognizance of this court.”
3. To substantiate the aforementioned charge, the prosecution presented 15
witnesses. The details of these witnesses, along with the documents they
presented during their testimony, are listed below in tabular form:
PW No. Name of witness Documents Description exhibited PW1 HC Mukesh Ex. PW1/A DD No.90A (Duty Officer) PW2 SI Okesh Kumar Ex. PW2/A Copy of FIR (Duty Officer) Ex. PW2/B Endorsement on rukka vide DD No.24A PW3 Ct. Robin Kumar Ex. PW3/A Seizure memos of case property (Recovery witness) Exs.PW3/B & Arrest memos of both the accused PW3/C Exs.PW3/D & Personal search memos of both the accused CNR No.DLSH010066242022 Page 3 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act PW3/E Ex. PW3/F Statement of witness Ex. PW3/G Original notice u/s.50 NDPS Act of accused Ashish Ex. PW3/H Original notice u/s.50 NDPS Act of accused Mukesh Mishra Exs. P1 to P5 Ganja recovered from accused Ashish Exs. P6 to P9 Ganja recovered from accused Mukesh Mishra Ex. P10 Personal search articles of both accused (collectively) PW4 HC Rahul Kumar Ex. PW4/A Copy of RC No.205/21/22 (Took exhibits to Mark X Acknowledgment of FSL FSL) PW5 Ct. Pradeep Yadav Ex.PW5/DX1 Statement of witness u/s.161 Cr.P.C (Recovery witness) PW6 HC Sachin (Recovery witness) PW7 HC Devendra Ex. PW7/A Original report u/s.57A NDPS Act (Reader to ACP) PW7/B Copy of entry No.5128 in diary register PW8 HC Raj Kumar Ex. PW8/A Copy of entry no.1953/4972 in register no.19 (MHCM) Ex. PW8/B Copy of RC No.205/21/22 Ex. PW8/C Copy of acknowledgment of FSL PW9 Babloo Exs. PW9/P-1 to Photographs of proceedings drawing samples (Photographer) PW9/P-29 Ex.PW9/P-30 Certificate u/s.65B of Indian Evidence Act PW10 Surender Kumar Ex. PW10/A Certified copy of CAF alongwith copy of (Nodal Officer) Aadhaar Card of mobile no.xxxxx19093 Ex. PW10/B Attested copy of CDR Ex. PW10/C Certified copy of CAF and e-KYC of mobile no.xxxxx79023 Ex. PW10/D Attested copy of CDR Ex. PW10/E Location chart of both the aforesaid mobile numbers Ex. PW10/F Certificate u/s.65B of Indian Evidence Act Ex. PW10/G Covering letter of the aforesaid information forwarded to the IO PW11 Dr. Kavita Goyal, Ex. PW11/A Report of FSL Ex. PW11/A Assistant Director - Chemistry, FSL CNR No.DLSH010066242022 Page 4 of 53 SC No.389/22 State Vs. Ashish & Mukesh Mishra FIR No.532/22 PS: Seema Puri U/s.20(b)(ii)(C) NDPS Act PW12 Insp. Vinay Yadav Ex. PW12/A DD No.29A dated 22.06.2022 (SHO PS Seema Puri) PW13 ACP Akshay Kumar PW14 SI Sachin (IO, supplementary charge-sheet only) PW15 SI Vineet (IO) Ex. PW15/A Rukka Admitted documents Ex. AD1 Proceedings u/s.52A NDPS Act conducted by (Admitted on 02.12.2024) Ld. MM on 07.08.2021
4. After examining the testimony of the witnesses mentioned in the table above,
it is found that they gave evidence about the following facts for the
prosecution:-
4.1. On the intervening night of 21-22.06.2022, at about 2.50 a.m. (on
22.06.2022), PW3 Ct. Robin Kumar alongwith PW5 Ct. Pradeep and Ct.
Satyanarayan were on patrolling duty on a govt motorcycle. At about 3.00
a.m., they reached near Seemapuri Golchakkar, in front of Kalyan
Hospital, where both the accused were found standing.
4.2. PW3 Ct. Robin Kumar and Ct. Satyanarayan stopped near both the
accused and enquired from them about their names and addresses, upon
which they disclosed their names and addresses as Ashish s/o Narender
Kumar r/o. Village Birui, Distt Fatehpuri, UP, aged 22 years and Mukesh
Mishra s/o Laxman Swaroop Mishra r/o village Bandi Distt Fatehpuri UP
aged 23 years.
4.3. The aforementioned three police officials also enquired from
accused Ashish as to what he was carrying in his two pitthu bags of black
colour and the other bag that he was carrying in his right hand. They also
enquired from accused Mukesh Mishra, as to what he was carrying in the
green colour bag in his right hand. Upon which, both the accused replied
that they were carrying personal articles / belongings.
CNR No.DLSH010066242022 Page 5 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
4.4. The aforementioned police officials, on suspicion checked all the
three bags and in the black colour pitthu bag carried by accused Ashish,
they found two brown colour packets, which were found to contain
pattinuma beej with leaves, having the qualities of Ganja and in the green
colour bag also carried by accused Ashish in his right hand, they found
three packets with brownish colour tape and upon checking the same, each
of the packets were found containing pattinuma beej with leaves, having
the qualities of Ganja. On checking the green colour bag carried by
accused Mukesh, they found four packets with brownish colour tape and
each of the packets were found containing pattinuma beej with leaves,
having the qualities of Ganja.
4.5. PW3 Ct. Robin Kumar called the Duty Officer and gave him
information about the aforementioned facts, which was recorded by Duty
Officer / PW2 SI Okesh Pal vide DD No.19A Ex.PW2/D.
4.6. The said DD entry No.19A Ex. PW2/D was marked to PW15 SI
Vinit, who upon receiving the same, alongwith PW6 HC Sachin went to
the spot alongwith IO kit, weighing machine, laptop, printer and other
material.
4.7. PW15 SI Vineet and PW6 HC Sachin, upon arrival at the spot, met
PW3 Ct. Robin, PW5 Ct. Pardeep and Ct. Satyanarayan and they produced
the three bags, one of black colour and two of green colour, containing
Ganja like material, to PW15 SI Vineet. They also disclosed all the facts
to PW15 SI Vineet, upon which SI Vineet shared the information with the
concerned SHO PW12 Inspector Vinay Yadav and also with PW13 ACP
Akshay Kumar.
4.8. PW15 SI Vineet asked 3-4 public persons to join the investigation in
the presence of both the accused at the spot, but the public persons refused
CNR No.DLSH010066242022 Page 6 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
and went away without disclosing their names and other details.
4.9. PW15 SI Vineet checked the bags and found that in the green colour
bag, there were three polythene bags containing Ganja and in the black
colour bag, there were two polythene bags containing Ganja. In the green
colour bag recovered from accused Mukesh Mishra, there were four
polythene bags containing Ganja. Thus, in total, from both the accused, 9
polythene bags containing Ganja were recovered.
4.10. PW15 SI Vineet prepared notices under section 50 of the NDPS Act
and handed over the original notices to both the accused and apprised them
about their legal rights that before conducting their personal search, they
can conduct the search of police team and they can also get themselves
searched in the presence of a gazetted officer or a magistrate or they can
be produced before a gazetted officer or magistrate for the said purpose.
However, both the accused refused to get themselves searched before a
gazetted officer or a magistrate and also refused to take the search of
members of police team.
4.11. Since accused Ashish was not literate enough, hence, PW15 SI
Vineet recorded his refusal on the copy of notice under section 50 of the
NDPS Act Ex.PW3/2, which bears his signatures at point Z and his refusal
from point Y to Y1. Similarly, accused Mukesh Mishra also refused and
his refusal was also recorded on the copy of notice under section 50 of the
NDPS Act Ex.PW3/1, bearing his signature at point D and his refusal from
point X to X1.
4.12. PW13 ACP Akshay Kumar, upon receiving the information from
PW15 about the recovered contraband, reached the spot at about 5.00 a.m.,
where PW15 produced both the accused and he introduced himself to
them, apprised them about their legal rights and informed them that he is
CNR No.DLSH010066242022 Page 7 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
a gazetted officer.
4.13. The nine bags, marked as S1 to S9 by PW15 SI Vineet, were
separately weighed on the weighing machine.
4.14. PW15 weighed the polythenes separately on electronic weighing
machine. The weight of the five polythene bags containing Ganja
recovered from accused Ashish : Weight of S1 was found to be 4.952 Kgs,
Weight of S2 was found to be 5.080 Kgs. Weight of S3 was found to be
5.090 Kgs, weight of S4 was found to be 5.084 Kgs and weight of S5 was
found to be 4.880 Kgs.
4.15. The weight of four polythene bags recovered from accused Mukesh:
Weight of S6 was found to be 5.080 Kgs, weight of S7 was found to be
5.114 Kgs, weight of S8 was found to be 5.092 Kgs and weight of S9 was
found to be 5.298 Kgs.
4.16. After the polythene bags were weighed, the parcels S1 and S2 were
kept in the same black colour bag, its cloth pullanda was prepared, parcels
/ packets S3, S4 and S5 were kept in the same green colour bag recovered
from accused Ashish, cloth pullanda was prepared and parcels S6, S7, S8
and S9 were kept in the same green colour bag recovered from accused
Mukesh, cloth pullanda was prepared and the three cloth pullandas were
marked as A1, A2 and A3, which were sealed with the seal of VP by PW15
SI Vinit. The seal was thereafter handed over to PW5 Ct. Pradeep vide seal
handing over memo Ex.PW3/3.
4.17. The aforementioned bags were seized vide seizure-memo
Ex.PW3/A, which also bears signature of both the accused.
4.18. Rukka was prepared by PW15 Ex.PW15/A and the same was handed
over to PW3 Ct. Robin Kumar and PW5 Ct. Pradeep. The carbon copy of
seizure-memo and the sealed parcels A1 to A3 were also handed over to
CNR No.DLSH010066242022 Page 8 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
PW3 Ct. Robin Kumar and PW5 Ct. Pradeep with direction to hand over
rukka to Duty Officer PW2 SI Okesh Pal and parcels to the SHO.
4.19. PW3 Ct. Robin Kumar and PW5 Ct. Pradeep alongwith the parcels,
rukka, copy of seizure-memo went to PS, where rukka was handed over to
the Duty Officer and the copy of seizure-memo along with sealed parcels
were produced before PW12 / SHO Inspector Vinay Yadav, at about 7.00
a.m.
4.20. PW2 SI Okesh Pal recorded FIR Ex.PW2/A on the basis of rukka
and made endorsement Ex.PW2/B on the rukka vide DD No.24A.
4.21. PW12 Inspector Vinay Yadav upon receiving the copy of seizure-
memo and three parcels, affixed his seal of VY on the said three pullandas
Mark A1 to A3 and after confirming the FIR number from the Duty
Officer, PW2 SI Okesh Pal, mentioned the same on the parcels and
seizure-memo. He also affixed his signatures on three parcels as well as
copy of seizure-memo.
4.22. PW12 Inspector Vinay Yadav, thereafter handed over the sealed
parcels and copy of seizure-memo to MHCM HC Raj Kumar (PW8) at
about 8.30 a.m., who deposited the said parcel in Malkhana and made
entry in this regard at serial no.1953/4972 in register no.19 Ex.PW8/A,
which was also countersigned by the SHO.
4.23. After registration of FIR and handing over the parcels to PW12
SHO, PW3 and PW5 returned back to the spot with copy of FIR and
original rukka and handed over the same to PW15. Thereafter, PW15
mentioned the FIR number on documents prepared by him and also
prepared the site plan Ex.PW6/1.
4.24. Both accused Ashish and Mukesh Mishra were arrested vide arrest
memos Ex.PW3/C and Ex.PW3/B respectively in the presence of PW3
CNR No.DLSH010066242022 Page 9 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
and PW5. Their personal search was also conducted vide memos
Ex.PW3/D and Ex.PW3/E, on which, besides other things, original notices
under section 50 of the NDPS Act were also found in their respective
possession.
4.25. The said personal search articles were deposited in the Malkhana
and received by PW8 HC Raj Kumar (MHCM), who deposited the same
and made entry in this regard in register no.19 Ex.PW8/A.
4.26. That on 22.06.2022, PW12 Inspector Vinay Yadav forwarded report
Ex.PW7/A under section 57 of the NDPS Act, prepared by PW15 SI
Vineet and the said report was received by PW13 ACP Akshay Kumar,
who signed the said report Ex.PW7/A and retained it in his record, which
was produced by PW7. Entry no.5128 in diary register as regard the said
report is Ex.PW7/B.
4.27. On 01.07.2022, PW3, PW5 and IO/PW15 SI Vinit alongwith PW9 /
Photographer Babloo, after taking the case property from the MHCM,
came to Court of Sh. Ajeet Narayan, Ld. MM, Karkardooma Courts, where
proceeding u/s. 52A NDPS Act were conducted, which are Ex.AD-1
(admitted by both the accused on 02.12.2024). The photographs taken
during the said proceedings were proved by PW9 as Ex.PW9/P-1 to
Ex.PW9/P-29 and certificate thereto u/s 65B Indian Evidence Act as
Ex.PW9/P-30.
4.28. On 08.07.2022, the sealed parcels were taken out on the direction of
PW15 and PW8 handed over the said parcels to PW4 HC Rahul to be
deposited at FSL vide RC No. 205/21/22 Ex.PW4/1 and Ex.PW8/B.
4.29. PW4 HC Rahul Kumar after obtaining the sealed pullandas, FSL
Form, copy of seizure-memo and sample seal, went to FSL Rohini and
deposited the same vide receipt / acknowledgment Ex.PW8/C, which was
CNR No.DLSH010066242022 Page 10 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
handed over by him to MHCM.
4.30. That PW11 Dr. Kavita Goyal (FSL Expert) examined the parcels
deposited with FSL on 08.07.2022 and found that the said parcels
containing dried greenish brown colour flowering and fruiting vegetative
material, which upon physical microscopic chemical and TLC
examination was found to be Ganja. The detailed report dated 06.02.2023
in this regard is Ex.PW11/A.
4.31. That PW14 SI Sachin obtained the FSL result in July 2023, prepared
supplementary charge-sheet and filed the same in the Court.
4.32. That PW10 Surender Kumar, Nodal Officer, Bharti Airtel Ltd.,
produced CAF of mobile numbers xxxxx19093 and xxxxx79023 from
01.07.2021 to 22.06.2022. As per said record, mobile number 7398219093
has been issued in the name of Mayank Mishra. The certified copy of CAF
alongwith Aadhar card is Ex.PW10/A. The attested copy of CDR is
Ex.PW10/B (colly.). Further, as per record, the mobile number
xxxxx79023 has been issued in the name of Mukesh. The certified copy
of CAF along with e-KYC is Ex.PW10/C. The attested copy of CDR is
Ex.PW10/D. The location chart of both the aforesaid mobile numbers is
Ex.PW10/E. The witness also issued a certificate under section 65B of the
Indian Evidence Act Ex. PW10/F of both the aforesaid mobile numbers.
The abovesaid details were forwarded to the IO vide covering letter
Ex.PW10/G.
5. After closing of the prosecution evidence, statements of the accused persons
under Section 313 Cr.P.C. were recorded, wherein they pleaded innocence and
claimed that they have been falsely implicated in the present case.
6. In defence, accused Ashish stated that on the intervening night of 21 –
CNR No.DLSH010066242022 Page 11 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
22.06.2022, at about 11.00 – 12.00 midnight, he and his friend Mukesh Mishra
(co-accused) came from Kanpur to Anand Vihar Bus Stand in a bus and after
they alighted from the bus, they were apprehended by the police.
Accused Mukesh Mishra in his defence stated that he has been falsely
implicated in the present case. He along with his friend Ashish were coming in
bus from Kanpur, as they had to go to NOIDA (Uttar Pradesh). They alighted
from the bus at Anand Vihar Bus Stand and when they were searching for an
auto, police officials came there and apprehended them and thereafter took
them to Seema Puri Gol Chakkar. There, one – two other persons were already
present. The police officials were conducting their search and the articles
recovered from those persons were planted on them. The police officials
permitted those persons to go away and arrested them. At that time, the police
officials stated them that they would release them in the morning. They also
obtained their signatures on blank papers.
7. Both the accused opted not to lead evidence in their defence.
Arguments advanced
8. I have heard the Sh. Jitender Sharma, Ld. Additional Public Prosecutor and Sh.
Karan Verma, Ld. Counsel for accused persons and perused the record.
9. During course of the arguments, Ld. Addl. Public Prosecutor submitted that
there has been recovery of commercial quantity of contraband from both the
accused persons, which has been proved beyond reasonable doubt by the
prosecution and, therefore, the accused persons are liable to be convicted for
offence u/s.20 NDPS Act.
10. Written arguments were also filed by learned counsel for accused persons. Ld.
Counsel for the accused, in oral arguments as well as written submissions,
submitted that this is a case of chance recovery, but the officials who are
CNR No.DLSH010066242022 Page 12 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
involved in the chance recovery were allocated different locations for
patrolling, as per GD No.4A, thus, there is a mismatch as far as the place of
recovery and the location of the recovery witnesses, as per the GD No.4A is
concerned. He submitted that Ct. Robin was deputed at DTC Depot and Ct.
Satyanarayan at Pummy Sweets as per the GD No. 0004A. However, the said
Constables made alleged recovery from Old Seemapuri Golchakkar in front of
Kalyan Hospital, where the said officers were never deputed. Her further
submitted that DD 19A was prepared on the telephonic message given by
Constable Robin, as per his statement u/s.161 Cr.P.C. and as per statement
u/s.161 Cr.P.C. of Ct. Pradeep. However, both the said witnesses deposed
otherwise before the Court, as Ct. Robin stated that it was Ct. Pradeep, who
telephonically informed the PS, whereas Ct. Pradeep stated that he had given
the information to Duty Officer telephonically. Therefore, both the witnesses
have deposed differently from what is mentioned in GD No.19A as well as in
the rukka. Ld. Counsel strongly argued that this contradiction goes to the root
of the case and creates serious doubt regarding the alleged chance recovery
made from the accused persons. Ld. Counsel also submitted that as per record,
the alleged recovered substance is beejnuma, dandinuma, ghaas jaisa
badbudaar padarth, which is not Ganja as per law. He also submitted that PW5
Ct. Pradeep during his deposition stated that field testing kit was used to check
the contraband, whereas it is a matter of fact that the field test kit is never used
to test Ganja. It was further submitted by the Ld. Counsel that the prosecution
has failed to produce the best possible evidence, which could have been
procured at the time of alleged recovery by either making photography or
videography at the time of making alleged recovery, or by collecting CCTV
footage of the spot of recovery of places nearby. He also submitted that the
prosecution has not examined even a single independent witness and, therefore,
CNR No.DLSH010066242022 Page 13 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
there is a presumption against the prosecution and in favour of the accused
u/s.114(g) Indian Evidence Act. Lastly, he submitted that the application for
sampling u/s.52A NDPS Act was moved after a delay of six days and the
samples were also sent to FSL after delay of eight days, which also creates
doubt regarding the tampering of the case property.
Legal Requirement to prove the Charges
11. Accused persons have been charged for offences u/s.20(b)(ii)(C) of NDPS Act.
Section 20 NDPS Act reads as under :
“20. Punishment for contravention in relation to cannabis plant and cannabis.
Whoever, in contravention of any provision of this Act or any rule or order made or
condition of licence granted thereunder,–
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State,
exports inter-State or uses cannabis,
shall be punishable,–
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine which may extend to one
lakh rupees; and
(ii) where such contravention relates to sub-clause (b),–
(A) and involves small quantity, with rigorous imprisonment for a term which may
extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term which may extend to ten years, and
with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to twenty years and shall also
be liable to fine which shall not be less than one lakh rupees but which may extend
to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.” (emphasis supplied)
12. As far as contravention of the provision is concerned, Section 8 of NDPS Act
completely prohibits the possession of narcotic drug or psychotropic
substances, except for medical or scientific purposes, that too in the manner
as prescribed by the Act. This section reads as under :
“No person shall–
(a) cultivate any coca plant or gather any portion of coca plant; or
CNR No.DLSH010066242022 Page 14 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-State, import into India, export from
India or tranship any narcotic drug or psychotropic substance, except for
medical or scientific purposes and in the manner and to the extent provided
by the provisions of this Act or the rules or orders made thereunder and in a
case where any such provision, imposes any requirement by way of licence,
permit or authorisation also in accordance with the terms and conditions of
such licence, permit or authorisation:
Provided that, and subject to the other provisions of this Act and the rules
made thereunder, the prohibition against the cultivation of the cannabis plant
for the production of Ganja or the production, possession, use, consumption,
purchase, sale, transport, warehousing, import inter-State and export inter-
State of Ganja for any purpose other than medical and scientific purpose shall
take effect only from the date which the Central Government may, by
notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy
straw for decorative purposes.” `(emphasis supplied)
13. As per the Section, possession of all narcotic drugs is prohibited by Section 8.
14. The term “narcotic drugs” is defined in Section 2(xiv) as under:-
(xiv) “narcotic drug” means coca leaf, cannabis (hemp), opium, poppy
straw and includes all manufactured drugs;
15. As per the definition, ‘narcotic drug’ includes cannabis (hemp). Therefore, the
possession of cannabis (hemp) is prohibited by Section 8 of NDPS Act.
16. The term “cannabis (hemp)” is defined in Section 2(iii) of NDPS Act, as
under :
“(iii) “cannabis (hemp)” means–
(a) charas, that is, the separated resin, in whatever form, whether crude or purified,
obtained from the cannabis plant and also includes concentrated preparation and resin
known as hashish oil or liquid hashish;
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops), by whatever name they
may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of
cannabis or any rink prepared therefrom” (emphasis supplied)
CNR No.DLSH010066242022 Page 15 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
17. “Cannabis (hemp)” besides other things also means Ganja i.e. the flowering
and fruiting tops of cannabis plant. In the present case, the prosecution would
be required to prove that the recovered substance was Ganja.
18. The prosecution would also be required to prove that the quantity of the
contraband recovered was of small, intermediate or commercial quantity. The
terms “small quantity” and “commercial quantity” are defined in Section
2(xxiiia) & 2 (viia), as under :
“(xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic substances,
means any quantity lesser than the quantity specified by the Central Government by
notification in the Official Gazette;”
(viia) “commercial quantity”, in relation to narcotic drugs and psychotropic
substances, means any quantity greater than the quantity specified by the Central
Government by notification in the Official Gazette.”
19. The notification specifying small quantity & commercial quantity vide
SO1055(E) dated 19.10.2001 mentions the small quantity and commercial
quantity for various Narcotic Drugs & Psychotropic Substances, including
‘Ganja’. As per entry at serial no.55 in the said notification, the small quantity
for Ganja is 1000 gms and commercial quantity is 20 Kgs.
20. In order to prove the charges u/s.20(b)(ii)(C) NDPS Act, the prosecution is
required to prove the following facts :
(1) That the accused were in possession of contraband.
(2) That the possession was in contravention of the provision of the Act or any
rule on order made or condition of license granted thereunder.
(3) That the contraband was Ganja.
(4) That the quantity of the contraband was commercial (above 20 Kgs), for
Section 20(b)(ii)(C).
21. Besides proving the aforesaid facts, the prosecution is also required to prove
that the investigating agency carried out the investigation in compliance with
CNR No.DLSH010066242022 Page 16 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
the provisions of NDPS Act. The investigating agency must adhere strictly to
the legal procedure established during the search, ensuring transparency and
fairness in the investigation. By adhering to this procedure, the agency
demonstrates its commitment to protecting personal liberty, a fundamental
right of citizens. This ensures that the search was conducted in a manner that
upholds the principles of the judicial system. The credibility of the evidence
presented by the prosecution is enhanced when the investigating agency
follows the statute scrupulously.1 The failure to adhere to the procedure raises
a doubt in the mind of the court regarding the manner in which the
investigation is carried out, which obviously favors the accused.
22. In Raj Kumar Karwal and Ors. vs. Union of India (UOI) and Ors. :
MANU/SC/0014/1991, Hon’ble Apex Court considered the scheme of the Act
as under:
“8. The Act is divided into VI Chapters accommodating 83 Sections. Chapter I contains
the short title of the Act, definitions of various terms and expressions used therein and
provisions enabling addition to and omission from the list of psychotropic substances.
Chapter II entitled ‘authorities & officers’ empowers the Central as well as the State
Government to make appointments of certain officers, etc. for the purposes of the Act.
The newly added Chapter IIA provides for the Constitution of a national fund for control
of drug abuse. Provision for the prohibition, control and regulation on cultivation,
production, manufacture, etc., of any narcotic drug or psychotropic substance is to be
found in Chapter III. Chapter IV defines the offences punishable under the Act and
prescribes the penalties therefor. Needless to say that the punishments prescribed are
very severe. In some cases the minimum punishment is 10 years with fine extending to1
1. In Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors. (03.07.2002 –
BOMHC) : MANU/MH/1838/2002:
2. “In view of the principle that Ceaser’s wife must be above-board, the
investigating agency has to be consistent with the procedure laid down by law while
conducting the search and it has to be above-board in following the procedure by
investigating into the crime and if that is done it would assure the judicial mind that by
giving importance to the personal liberty a fundamental right of (he citizen, the search
was conducted. If that is done, then there would be creditworthiness to such evidence
which has been adduced by the prosecution. The investigating agency must follow the
procedure as envisaged by the statute scrupulously and failure to do so must be viewed
by the higher authorities seriously inviting action against the concerned official so that
laxity on the part of the investigating authority is curbed.”
CNR No.DLSH010066242022 Page 17 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
Rs. 2 lacs and above. By a recent amendment death penalty is prescribed for certain
offences committed by persons after a previous conviction. Provision for rebuttable
presumption of mens-rea culpable mental state-is also made under Section 35 and
Special Courts are envisaged by Sections 36 and 36A for the trial of offences punishable
under the Act. Every offence punishable under the Act is made cognizable by virtue of
Section 37., notwithstanding the provisions of the Code. Then comes Chapter V which
outlines the procedure to be followed by the officers appointed for the implementation
of the various provisions of the Act. Sub-section (1) of Section 41 empowers a
Metropolitan Magistrate or a Magistrate of the First Class or a Magistrate of the
Second Class, specially empowered, to issue a warrant for the arrest of any person
suspected of having committed any offence punishable under the provisions of Chapter
IV of the Act and for the search of any premises, conveyance or place in which such
person is suspected of having kept or concealed any narcotic drug or psychotropic
substance. Sections 41(2), 42, 43, and 44 confer on officers named under Act the powers
of arrest, search and seizure without any order or warrant from the concerned
Magistrate. We will refer to these provisions in some detail when we discuss the impact
thereof hereafter.
9. Power to stop, rummage and search any conveyance or goods carried in any
conveyance or on any animal is conferred by Section 49. Section 51 provides that all
warrants issued and arrests, searches and seizures made shall be governed by the
provisions of the Code unless such provisions are not consistent with the provisions of
the Act.
10. …… Section 53A, inserted by Act 2 of 1989, makes a statement made and signed by
a person before any officer empowered under Section 53 for investigation of offences,
during the course of such investigation, relevant in certain circumstances e.g., when
the maker of the statement is dead or cannot be traced or is incapable of giving evidence
or is kept away by the opposite party or whose presence cannot be secured without
delay or when he is examined as a witness in the case. Section 54 permits raising of a
rebuttable presumption against an accused in a trial for any offence under the Act to
the extent permitted by Clauses (a) to (d) thereof. Section 55 enjoins upon an officer-
in-charge of a police station to take charge of and keep in safe custody any article seized
under the Act and made over to him. Section 57 enjoins upon the officer making an
arrest or effecting seizure under the Act to make a full report thereof to his immediate
superior within 48 hours. Section 58 provides the punishment for vexatious entry,
search, seizure or arrest. Section 67 empowers an authorised officer to call for
information or require any person to produce or deliver any document or thing useful
or relevant to the enquiry or examine any person acquainted with the facts and
circumstances of the case. The newly added Chapter VA deals with forfeiture of property
derived from and used in illicit traffic of drugs, etc. The last Chapter VI contains
CNR No.DLSH010066242022 Page 18 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
miscellaneous provisions.”
23. It is settled legal proposition that the procedure provided under Chapter V of
the NDPS Act has to be scrupulously followed for the Court to raise such
presumption. It is further settled law that for attracting the provision of Section
35 and 54 of NDPS Act, it is essential for the prosecution to establish the
element of possession of contraband by the accused beyond reasonable doubt
for the burden to shift to the accused to prove his innocence. This burden on
the prosecution is a heavy burden. To decide whether the burden has been
discharged or not by the prosecution, it is relevant to peruse the record and
evidence and consider the submissions made by the parties.
24. The court will now proceed to examine and discuss the various aspects of the
case and the relevant pieces of evidence under distinct headings as follows:
Discussion on the point of compliance of Section 42 of NDPS Act
25. Section 42 NDPS Act is as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.– (l)
Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the
departments of central excise, narcotics, customs, revenue intelligence or any other depart-
ment of the Central Government including para-military forces or armed forces as is em-
powered in this behalf by general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue,
drugs control, excise, police or any other department of a State Government as is empow-
ered in this behalf by general or special order of the State Government, if he has reason to
believe from personal knowledge or information given by any person and taken down in
writing that any narcotic drug, or psychotropic substance, or controlled substance in respect
of which an offence punishable under this Act has been committed or any document or
other article which may furnish evidence of the commission of such offence or any illegally
acquired property or any document or other article which may furnish evidence of holding
any illegally acquired property which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place,
may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and
any other article and any animal or conveyance which he has reason to believe to be
CNR No.DLSH010066242022 Page 19 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
liable to confiscation under this Act and any document or other article which he has
reason to believe may furnish evidence of the commission of any offence punishable
under this Act or furnish evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to
believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or
psychotropic substances or controlled substances granted under this Act or any rule or order
made thereunder, such power shall be exercised by an officer not below the rank of sub-
inspector:
Provided further that if such officer has reason to believe that a search warrant or authori-
sation cannot be obtained without affording opportunity for the concealment of evidence
or facility for the escape of an offender, he may enter and search such building, conveyance
or enclosed place at any time between sunset and sunrise after recording the grounds of his
belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records
grounds for his belief under the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.” (emphasis supplied)
26. Section 42 of the NDPS Act provides that the concerned police officer, who
received the secret information is required to reduce it into writing and
send the information so recorded within 72 hours of its receipt to his
immediate officer superior.
27. The present case is a case of chance recovery as no secret information was
received before the apprehension of the accused persons. Accordingly, the
recording of secret information in terms of Section 42(1) NDPS Act and
forwarding the same to immediate official superior within 72 hours was
not required in the present case. Thus, the question of compliance of
Section 42 NDPS Act does not arise in the facts of this case.
Discussion on the point of compliance of Section 50 of NDPS Act
28. Section 50 NDPS Act is as under :
“Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person
under the provisions of section 41, section 42 or section 43, he shall, if such person so
requires, take such person without unnecessary delay to nearest Gazetted Officer of any
of the departments mentioned in section 42 or to the nearest Magistrate.
CNR No.DLSH010066242022 Page 20 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
(2) If such requisition is made, the officer may detain the person until he can bring him
before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought
shall, if he sees no reasonable ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not
possible to take the person to be searched to the nearest Gazetted Officer or Magistrate
without the possibility of the person to be searched parting with possession of any
narcotic drug or psychotropic substance, or controlled substance or article or
document, he may, instead of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under section100 of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the
reasons for such belief which necessitated such search and within seventy-two hours
send a copy thereof to his immediate official superior.” (emphasis supplied)
29. The legal position in respect to Section 50 NDPS Act has been laid down by
Hon’ble Supreme Court in case titled as State vs Baldev Singh reported as
1999 AIR (SC) 2378 that the compliance of the provisions of section 50 NDPS
Act is mandatory. It is also held in this case that the compliance of this
provision is not necessary where recovery was effected without prior
information and where it was the case of a chance recovery. The relevant para
of this judgment reads as under:-
“11. On its plain reading, Section 50 would come into play only in the case of a search
of a person as distinguished from search of any premises etc. However, if the empowered
officer, without any prior information as contemplated by Section 42 of the Act makes
a search or causes arrest of person during the normal course of investigation into an
offence or suspected offence and on completion of that search, a contraband under the
Narcotic Drugs And Psychotropic Substances Act is also recovered, the requirements of
Section 50 of the Act are not attracted.”
30. In the case titled as State of Punjab vs. Balbir Singh reported as 1994(3)
SCC 299, same view has been taken by Hon’ble Supreme Court. The relevant
para reads as under:-
“25. The questions considered above arise frequently before the trial courts. Therefore,
we find it necessary to set out our conclusions which are as follows :
1) If a police officer without any prior information as contemplated under the
CNR No.DLSH010066242022 Page 21 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actprovisions of the Narcotic Drugs And Psychotropic Substances Act makes a
search or arrests a person in the normal course of investigation into an offence
or suspected offence as provided under the provisions of Cr P.C. and when such
search is completed at that stage Section 50 of the Narcotic Drugs and
Psychotropic Substances Act would not be attracted and the question of
complying with the requirements thereunder would not arise. If during such
search or arrest there is a chance recovery of any narcotic drug or Psychotropic
substance then the police officer, who is not empowered, should inform the
empowered officer who should thereafter proceed in accordance with the
provisions of the Narcotic Drugs And Psychotropic Substances Act. If he
happens to be an empowered officer also, then from that stage onwards. he
should carry out the investigation in accordance with the other provisions of the
Narcotic Drugs And Psychotropic Substances Act.”
31. In State of H.P. vs. Sunil Kumar (05.03.2014 – SC) : MANU/SC/0193/2014,
a case of chance recovery, Hon’ble Apex Court considered the question
regarding application of Section 50 NDPS Act. Relevant para of the said
judgment dealing with chance recovery and notice u/s.50 NDPS Act are
reproduced as under:
“Chance recovery:
11. The State is in appeal against the acquittal of Sunil Kumar and the broad submission
is that the recovery of charas from him was a chance recovery. Under these
circumstances, in view of the Constitution Bench decision in Baldev Singh which
endorsed the view taken in State of Punjab v. Balbir Singh (1994) 3 SCC 299 the
personal search of Sunil Kumar resulting in the recovery of contraband did not violate
Section 50 of the Act. Reliance was placed by learned Counsel on paragraph 25 in
Balbir Singh which was also endorsed by the Constitution Bench. It was submitted that
it is only after a chance or accidental recovery of any narcotic drug or psychotropic
substance by any police officer that the provisions of the Act would come into play. It
is then that the empowered officer should be informed and that empowered officer
should thereafter proceed to investigate the matter in accordance with the provisions of
the Act.
12. The relevant extract of paragraph 25 of Balbir Singh reads as follows:
(1) If a police officer without any prior information as contemplated under the
provisions of the NDPS Act makes a search or arrests a person in the normal
course of investigation into an offence or suspected offences as provided under
the provisions of Code of Criminal Procedure and when such search is
completed at that stage Section 50 of the NDPS Act would not be attracted and
the question of complying with the requirements thereunder would not arise. If
during such search or arrest there is a chance recovery of any narcotic drug or
psychotropic substance then the police officer, who is not empowered, should
inform the empowered officer who should thereafter proceed in accordance with
the provisions of the NDPS Act. If he happens to be an empowered officer also,
CNR No.DLSH010066242022 Page 22 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actthen from that stage onwards, he should carry out the investigation in
accordance with the other provisions of the NDPS Act.
13. In view of the opinion expressed by the Trial Court and the High Court, we need to
firstly understand what a ‘chance recovery’ is. The next question would be whether the
provisions of Section 50 of the Act would apply when there is a chance recovery.
14. The expression ‘chance recovery’ has not been defined anywhere and its plain and
simple meaning seems to be a recovery made by chance or by accident or unexpectedly.
In Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC 655 this Court considered a
chance recovery as one when a police officer “stumbles on” narcotic drugs when he
makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004) 13 SCC
608 the police officer, while searching for illicit liquor, accidentally found some charas.
This was treated as a ‘chance recovery’.
15. Applying this to the facts of the present appeal, it is clear that the police officers
were looking for passengers who were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried by a passenger. This can only
be described as a recovery by chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.
16. It is not possible to accept the view of the High Court that since the police officers
conducted a random search and had a “positive suspicion” that Sunil Kumar was
carrying contraband, the recovery of charas from his person was not a chance recovery.
The recovery of contraband may not have been unexpected, but the recovery of charas
certainly was unexpected notwithstanding the submission that drugs are easily available
in the Chamba area. The police officers had no reason to believe that Sunil Kumar was
carrying any drugs and indeed that is also not the case set up in this appeal. It was
plainly a chance or accidental or unexpected recovery of charas-Sunil Kumar could
well have been carrying any other contraband such as, smuggled gold, stolen property
or an illegal firearm or even some other drug.
17. We are not going into the issue whether the personal or body search of Sunil Kumar
(without a warrant) was at all permitted by law under these circumstances. That was
not an issue raised or canvassed before the Trial Court or the High Court or even before
us, although it has been adverted to in the written submissions by Learned Counsel
assisting us on behalf of Sunil Kumar.
Applicability of Section 50 of the Act:
18. As far as the applicability of Section 50 of the Act in a chance recovery is concerned,
the issue is no longer res integra in view of the decision of the Constitution Bench in
Baldev Singh.
19. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his
personal search being conducted after he disembarked from the bus. However, there is
no evidence to suggest that before he was asked to alight from the bus, the police
officers were aware that he was carrying a narcotic drug, even though the Chamba area
may be one where such drugs are easily available. At best, it could be said the police
officers suspected Sunil Kumar of carrying drugs and nothing more. Mere suspicion,
even if it is ‘positive suspicion’ or grave suspicion cannot be equated with ‘reason to
believe’. Joti Parshad v. State of Haryana 1993 Supp (2) SCC 497 and Sheo Nath Singh
v. Appellate Assistant CIT (1972) 3 SCC 234. These are two completely different
CNR No.DLSH010066242022 Page 23 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
concepts. It is this positive suspicion, and not any reason to believe, that led to the
chance recovery of charas from the person of Sunil Kumar.
20. Similarly, the positive suspicion entertained by the police officers cannot be equated
with prior information. Bharatbhai Bhagwanjibhai v. State of Gujarat (2002) 8 SCC 327
The procedure to be followed when there is prior information of the carrying of
contraband drugs is laid down in the Act and it is nobody’s case that that procedure was
followed, let alone contemplated.
21. We are not in agreement with the view of the High Court that since the police
officers had a positive suspicion that Sunil Kumar was carrying some contraband,
therefore, it could be said or assumed that they had reason to believe or prior
information that he was carrying charas or some other narcotic substance and so, before
his personal or body search was conducted, the provisions of Section 50 of the Act
ought to have been complied with. The recovery of charas on the body or personal
search of Sunil Kumar was clearly a chance recovery and, in view of Baldev Singh, it
was not necessary for the police officers to comply with the provisions of Section 50 of
the Act.”
32. In view of the aforesaid judgment, it is clear that in a case of chance recovery,
like the present one, notice u/s.50 NDPS Act is not required to be given before
the search of the accused persons is conducted.
33. However, it is noted that as soon as the police officials came to know that the
accused were carrying Ganja, upon checking the bags that they were carrying,
the further proceedings were conducted as per the provisions of NDPS Act and
the IO PW15 upon reaching the spot gave notice u/s.50 NDPS Act to both the
accused persons. Thus, after the apprehension of accused persons and before
their bodily search was conducted, mandatory notice u/s.50 NDPS Act was
served upon them and only after their refusal to avail their legal rights, their
bodily search was carried out. However, in their statement recorded under
Section 313 Cr.P.C., they denied to have been served with any such notice and
claimed that at the time of their arrest, their signatures were taken by the police
on some blank papers.
34. In view of the said claim of the accused persons, it is to be seen whether or
not, notice u/s.50 of the NDPS Act was served upon them before their bodily
search was conducted. PW15 in his deposition categorically stated that he
prepared notice u/s.50 NDPS Act and handed over the same to the accused
CNR No.DLSH010066242022 Page 24 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
persons. He also testified that he apprised the accused persons regarding their
legal rights, as mentioned in the notice u/s.50 NDPS Act. Testimony of this
witness on this aspect is as under:
“Thereafter, I prepared two separate notices u/s.50 of the NDPS Act in duplicate and
one copy each were served upon the respective accused persons. Thereafter I apprised
both the accused persons about their legal right by saying that they can get themselves
searched as well as they can search the police team in the presence of any Gazetted
officer or the Magistrate and if they want they can be produced before the gazetted
officer or magistrate for the said purpose. However they refused to get themselves
searched in the presence of any Gazetted officer or the Magistrate as well as to search
the police team in the presence of any Gazetted officer or the Magistrate.
Both the accused persons told me that they are less literate and can only sign. I wrote
down the refusal of accused Mukesh on the notice u/s 50 NDPS Act. The said notice is
already Ex.PW3/1 bearing signature of accused Mukesh Mishra at point D as a receipt
of original notice. My signature is at point E, refusal of accused Mukesh Mishra from
X to X1, signatures of accused Mukesh Mishra below the refusal at point Y and my
signatures below the refusal at point E1.
I wrote down the refusal of accused Ashish on the notice u/s 50 NDPS Act. The said
notice is already Ex.PW3/2 bearing signature of accused Ashish at point Z as a receipt
of original notice. My signature is at point E, refusal of accused Ashish from Y to Y1,
and my signatures below the refusal at point E1.”
35. It may be noted that there is no cross-examination of this witness as regards
the notice given by him to the accused persons and as regards the response of
the accused persons to the notice, which was recorded on the copy of the
notice. The only question put to him was that he had checked the contents of
the bags before notice u/s.50 NDPS Act was served upon the accused persons
and that he did not mention the word ‘nearest’ in notices u/s.50 NDPS Act.
36. As stated earlier, it is the case of the prosecution that the recovery was a chance
recovery, wherein upon checking the bags carried by the accused persons, it
was found that they were carrying several packets containing Ganja like
substance and only thereafter, information was given at the PS to depute an IO
CNR No.DLSH010066242022 Page 25 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
to conduct further proceedings under NDPS Act. Therefore, as per the
prosecution case, the contents of the bags were checked before the IO was
deputed to conduct the investigation in the present case and as such, it was not
possible to give notice u/s.50 NDPS Act, before the contents of the bags were
checked by the police officials. It is precisely for this reason, as pointed out
by the Hon’ble Apex Court in the aforesaid judgments, that the requirement
of Section 50 of NDPS Act is dispensed with in cases of chance recovery.
However, after the chance recovery, the bodily search of the accused persons
was duly carried out after giving them notice u/s.50 NDPS Act. Thus, as far
as the bodily search of the accused persons is concerned, the investigating
agency duly complied with Section 50 NDPS Act.
37. It was one of the arguments of the Ld. Defence Counsel that in the notice under
section 50 NDPS Act, the word “nearest” is not mentioned and as such there
is failure to comply with section 50 NDPS Act. In this regard Ld. Clounsel
relied upon judgment titled Bantu Vs State Govt of NCT of Delhi
2024:DHC:5006 and Mohd. Jabir Vs State (NCT of Delhi) 2023 SCC
Online Del 1827. In judgment of Bantu (supra), the Hon’ble High Court
relied upon Mohd. Jabir (supra). However, the Mohd Jabir (supra) was
challenged in appeal before the Hon’ble Apex Court in case titled as State of
NCT of Delhi Vs. Mohd. Jabir Crl. Appeal No.4921/2024 dated
02.12.2024. In the said judgment Hon’ble Apex Court observed as under:
It is obvious that the intent behind the provision is to ensure that the person about to be
searched is made aware of the option to be taken before a third person other than the
one who is conducting the search. Use of the expression “nearest” refers to the
convenience as the suspect is to be searched. Delay should be avoided, as is reflected
from the use of the word “unnecessary delay” and the exception carved in sub-section
(5) to Section 50 of the NDPS Act. Nothing more is articulated and meant by the words
used, or the intent behind the provision.
Having said so, we are unable to appreciate the reasoning given by the High
Court in the impugned judgment, which states that use of the word ‘any’ does not
satisfy the mandate of the ‘nearest’ Gazetted Officer and, hence, the respondent,
CNR No.DLSH010066242022 Page 26 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
Mohd. Jabir, is entitled to bail. The option given to the respondent, Mohd. Jabir, about
to be searched, with reference to a Gazetted Officer or a Magistrate, does not refer to
the authorized person in the raiding.” (emphasis supplied)
Therefore, the absence of the word ‘nearest’ in the notice under section 50
NDPS Act does not adversely affect the case of the prosecution.
38. The aforesaid deposition of PW15 is further supported by PW3, PW5 and
PW6, as all of them testified that the bodily search of the accused persons was
conducted only after notice u/s.50 NDPS Act was served upon the accused
persons. It may further be noted that despite the refusal of the accused persons
to get their bodily search conducted before a Gazetted Officer or a Magistrate,
PW13 ACP Akashay Kumar, a gazetted officer of Delhi Police reached the
spot and after introducing himself and apprising the accused persons of their
legal rights, directed PW15 to conduct bodily search of the accused persons,
which was conducted in his presence and no contraband was recovered from
the bodily search of any of the two accused persons.
39. In view of the testimonies of above witnesses, namely, PW-3 Robin Kumar,
PW5 Ct. Pradeep Yadav, PW6 HC Sachin, PW13 ACP Akashay Kumar and
PW15 SI Vineet, the prosecution has successfully proved on record that the
accused were properly served with the notice under Section 50 of the NDPS
Act before their bodily search and there was no violation of the said mandatory
provision.
40. It may further be pointed out here that as far as recovery of contraband from
the bag carried out by the accused persons is concerned, the rigors of Section
50 NDPS Act do not apply to the bags being carried by the accused person. In
this regard, the Court relies upon judgment titled State of Haryana Vs.
Suresh, AIR 2007 SC 2254, wherein Hon’ble Apex Court held as under :
“14. A bag, briefcase or any such article or container, etc. can, under no
circumstances, be treated as body of a human being. They are given a separate
name and are identifiable as such. They cannot even remotely be treated to be
CNR No.DLSH010066242022 Page 27 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actpart of the body of a human being. Depending upon the physical capacity of a
person, he may carry any number of items like a bag, a briefcase, a suitcase, a
tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size,
dimension or weight. However, while carrying or moving along with them, some
extra effort or energy would be required. They would have to be carried either
by the hand or hung on the shoulder or back or placed on the head. In common
parlance it would be said that a person is carrying a particular article,
specifying the manner in which it was carried like hand, shoulder, back or head,
etc. Therefore, it is not possible to include these articles within the ambit of the
word “person” occurring in Section 50 of the Act.”
Discussion on the point of recovery of contraband
41. As per prosecution case, on the intervening night of 21-22.06.2022, at about
2.50 a.m. (on 22.06.2022), PW3 Ct. Robin Kumar alongwith PW5 Ct. Pradeep
and Ct. Satyanarayan were on patrolling duty on a govt motorcycle. At about
3.00 a.m., they reached near Seemapuri Golchakkar, in front of Kalyan
Hospital, where both the accused were found standing. PW3 Ct. Robin Kumar
and Ct. Satyanarayan stopped near both the accused and enquired from them
about their names and addresses, upon which they disclosed their names and
addresses as Ashish s/o Narender Kumar r/o. Village Birui, Distt Fatehpuri,
UP, aged 22 years and Mukesh Mishra s/o Laxman Swaroop Mishra r/o village
Bandi, Distt Fatehpuri UP aged 23 years. The aforementioned three police
officials also enquired from accused Ashish as to what he was carrying in his
two pitthu bags of black colour and the other bag that he was carrying in his
right hand. They also enquired from accused Mukesh Mishra, as to what he
was carrying in the green colour bag in his right hand. Upon which, both the
accused replied that they were carrying personal articles / belongings.
42. The aforementioned police officials, on suspicion checked all the three bags
and in the black colour pitthu bag carried by accused Ashish, they found two
brown colour packets, which were found to contain pattinuma beej with
leaves, having the qualities of Ganja and in the green colour bag also carried
CNR No.DLSH010066242022 Page 28 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
by him (accused Ashish) in his right hand and they found three packets with
brownish colour tape and upon checking the same, each of the packets were
found containing pattinuma beej with leaves, having the qualities of Ganja.
On checking the green colour bag carried by accused Mukesh, they found four
packets with brownish colour tape and each of the packets were found
containing pattinuma beej with leaves, having the qualities of Ganja. PW3 Ct.
Robin Kumar called the Duty Officer and gave him information about the
aforementioned facts, which was recorded by Duty Officer / PW2 SI Okesh
Pal vide DD No.19A Ex.PW2/D. The said DD entry No.19A Ex. PW2/D was
marked to PW15 SI Vinit, who upon receiving the same, alongwith PW6 HC
Sachin went to the spot alongwith IO kit, weighing machine, laptop, printer
and other material and after completing necessary formalities, he checked the
bags and numbered the packets as S1, S2, S3, S4, S5, S6, S7, S8 & S9. He
weighed the recovered substance on the weighing scale and found the weight
of the five polythene bags containing Ganja recovered from accused Ashish:
Weight of S1 was found to be 4.952 Kgs, Weight of S2 was found to be 5.080
Kgs. Weight of S3 was found to be 5.090 Kgs, weight of S4 was found to be
5.084 Kgs and weight of S5 was found to be 4.880 Kgs. Similarly, the weight
of four polythene bags recovered from accused Mukesh: Weight of S6 was
found to be 5.080 Kgs, weight of S7 was found to be 5.114 Kgs, weight of S8
was found to be 5.092 Kgs and weight of S9 was found to be 5.298 Kgs.
43. In order to prove the recovery, the first witness examined by the prosecution
is PW3 Ct. Robin Kumar. The said witness in his examination-in-chief as
regards the recovery, testified as under :
“In the intervening night of 22-23.06.2022, I was posted as Ct at PS Seemapuri. On
that day I along with Ct. Satya Narayan and Ct. Pradeep were on patrolling duty
on govt motorcycle. At about 3.00 am when we reached at Seemapuri Gol Chakar
in front of Kalyan Hospital. We saw that two persons were standing there.
CNR No.DLSH010066242022 Page 29 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS ActThereafter I along with above mentioned police officers asked them why are they
standing there but they did not give answer. We again asked them and after some
time they disclosed their names. Their name revealed as Ashish s/o Narender Kumar
and Mukesh Mishra s/o Laxman Swaroop Mishra. Ashish was carrying one pittu
bag of black colour and he was also carrying one bag in his right hand. Accused
Mukesh was also carrying one green colour bag on his right hand. We asked them
about the above mentioned bag. Upon this they told us that they were carrying their
personal articles/belongings. On suspicion, we checked all the three bags. We
opened one small bag black colour containing two brownish colour (matiala
colour) packets. One of the brownish colour (matiala colour) bag was cut / torn and
checked and found “pattinuma beej with leaves”. The different kind of smell was
coming from the said bags. We felt that the said article i.e. pattinuma beej with
leaves seems to be ganja. Thereafter I made a call to the duty officer and gave the
information regarding the above mentioned facts. I requested him to send IO to the
above mentioned spot. SI Vinit Punia along with HC Sachin reached at the above
mentioned spot. They were also carrying IO kit with them i.e. laptop, printer,
electronic weighing machine along with some material articles. I narrated all the
above mentioned facts to the IO. IO SI Vinit Punia checked the above mentioned
bags. After seeing the said bags, SI Vinit gave the information to the SHO through
telephonically.
Thereafter IO SI Vinit apprised them for their legal right by saying that they can
get themselves searched as well as search the raiding team in the presence of any
Gazetted officer or the Magistrate however accused persons refused to get
themselves searched in the presence of any Gazetted officer or the Magistrate as
well as to search the raiding team in the presence of any Gazetted officer or the
Magistrate. SI Vinit gave the said information telephonically to ACP Akshay Kumar.
Thereafter said ACP reached at the spot and he again apprised the accused persons
for conducting their personal search. Their personal search was conducted by us in
presence of ACP. From the personal search of accused Ashish, 1250/-rupees, one
mobile phone of MI company of silver colour and its half of the screen was broken
and one bus ticket dated 21.06.2022 from Kanpur to Delhi, were recovered from his
possession. Notice under section 50 of the NDPS Act was also recovered from his
possession. From the personal search of accused Mukesh Mishra, one mobile phone
of I tell of blue colour and notice under section 50 of the NDPS Act were also
recovered from his possession.
ACP weighed the said three bags with the help of electronic weighing machine.
The weight of the pittu bag containing two packets which was recovered from the
possession of accused Ashish were found to be 5 kilograms of ganja in each of the
packets. The said packets were marked with S1 and S2 by IO SI Vinit.
CNR No.DLSH010066242022 Page 30 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS ActWe weighed one bag which was recovered from the accused Ashish in the
presence of ACP. The said bag containing three packets which was recovered from
the possession of accused Ashish were found to be approximately 5 kilograms of
ganja in each of the packets. The said packets were marked with S3 to S5 by IO SI
Vinit. The total weight of the said contraband which was recovered from accused
Ashish was found to be approximately 25 Kilograms and some grams.
The bag which was recovered from the accused Mukesh in the presence of ACP
was checked and the said bag containing four packets were found in that bag. The
said packets on weight were found to contain approximately 5 kilograms of ganja
in each of the packets. The said packets were marked with S6 to S9 by IO SI Vinit.
The total weight of the said contraband which was recovered from accused Mukesh
was found to be approximately 20 Kilo 500 grams. Thereafter ACP had instructed
the 10 to do legal action / formalities as per law. Thereafter ACP left the spot. The
above mentioned packets which were recovered from the respective bags were kept
again in the said bags and thereafter the said bags were put in the white cloth
pullanda. Three pullandas were prepared and they were sealed with the seal of VP.
The seizure memos were prepared and taken into possession vide seizure memo
Ex.PW3/A which bears my signature at point A.”
44. On this aspect, he was cross-examined by Ld. Defence Counsel. Relevant
portion of his cross-examination is also reproduced as under :
“I was alone on my bike while on patrolling duty in beat no.4 in Seemapuri on the
date of offence. I do not remember what clothes were being worn by the accused
persons. We had opened the bag recovered from the accused Ashish first of all. Ct.
Pradeep had opened the said bag first. The recovered substance from the accused
persons seemed like ganja but I could not say with certainity that it was ganja. I
had informed the duty officer in police station about recovery of contraband. IO
had recorded my statement u/s 161 CrPC. I had told to the IO that I had given the
information in the police station.
At this stage the Id. Defence counsel has confronted the witness with his
statement u/s 161 CrPC dt. 22.06.2022 in which it is mentioned that his associate
Ct. Pradeep had informed the duty officer telephonically from point A to A. The
statement is Ex.PW3/DX1.
I had not taken the photographs of the contraband from my mobile phone. SI
Vinit and HC Sachin came on the spot at about 3.30 am. No authorization letter was
shown by them for conducting search and seizure.”
45. Ct. Pradeep also deposed on the same lines in his examination-in-chief and
corroborated the testimony of PW3 Ct. Robin. Ha also testified that after the
accused were apprehended, Ct. Robin made call to Duty Officer and gave
CNR No.DLSH010066242022 Page 31 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
information regarding the recovery of Ganja. This witness was also cross-
examined by Ld. Counsel for accused persons. His cross-examination is as
under :
“I was on patrolling duty in beat no. 5 & 6 on 22.06.2022. Home
guard Rajender was with me. I do not remember which clothes were being worn by
the accused persons. I did not ask from the accused persons why they were standing
there and Ct. Robin had made the enquiries. Accused Ashish was having two bags
i.e. one pittoo bag of black colour and one carry bag of green colour. Accused
Mukesh was carrying one carry bag. It is wrong to suggest that accused persons
were not present at the spot as stated by me in chief examination. It is wrong to
suggest that the accused persons were not carrying any bags.
Ct. Robin had checked their bags. I did not check their bags.
The bags contained dandinumma ghassnuma substance which seemed like ganja.
Ct. Robin had told me that it was like ganja and I had not seen ganja prior thereto.
Ct. Robin had given the information in the police station. IO had recorded my
statement. I had not told to the IO that I had given the information in the police
station.
At this stage the Id. Defence counsel has confronted the witness with his
statement u/s 161 CrPC dt. 22.06.2022 in which it is mentioned that I had given the
information to the duty officer PS Seemapuri telephonically from point A to A. The
statement is Ex.PW5/Dx1.”
46. The testimony of the aforesaid two witnesses is further supported by the
deposition of PW15 SI Vinit, who upon receipt of GD No.19A had reached
the spot alongwith PW6 HC Sachin and had found both the accused persons
as well as PW3 and PW5 present there.
47. Both PW3 and PW5 have corroborated each other in all material particulars
and even in their cross-examination, nothing is found to doubt their deposition.
48. One particular contradiction was pointed out by Ld. Counsel for the accused
persons in the cross-examination of both these witnesses. He pointed out that
while the witnesses stated that upon finding that the accused persons were
carrying Ganja, it was Ct. Robin who had informed the PS, in statement
u/s.161 Cr.P.C. of both the witnesses, it is stated that it was Ct. Pradeep, who
gave the information regarding recovery of Ganja to the Duty officer at PS
CNR No.DLSH010066242022 Page 32 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
Seema Puri, telephonically. Thus, it is found that both PW3 and PW5 deposed
in their examination-in-chief as well as in their cross-examination that it was
PW3 Ct. Robin, who informed the PS about the alleged recovery of Ganja and
both of them in their cross-examination admitted that their statement u/s.161
Cr.P.C. to the effect that the call was made by PW5 Ct. Pradeep was not correct
and they were confronted with the said portion of the statement.
49. The said discrepancy in the statement of the two witnesses, however, do not
demolish the case of the prosecution as it is found that the testimony of both
the witnesses is corroborated by DD No.19A Ex. PW2/D, as per which, the
call was made to the PS by Ct. Robin Kumar to inform about the recovery of
Ganja like substance from the accused persons. The said fact is also recorded
in the statement of Ct. Robin Kumar Ex. PW3/F, recorded by PW15 upon
reaching the spot and this fact is also mentioned in the FIR lodged on
22.06.2022 Ex. PW2/A. Thus, it is found that deposition of both the witnesses
is in line with the record, which was prepared contemporaneously and only
because this portion was incorrectly recorded in their statements u/s.161
Cr.P.C., it cannot be said that the entire testimony of these witnesses is
unreliable or untrustworthy. Moreover, no question was put to these witnesses
or to the IO, during their cross-examination, to the effect that these two
witnesses had read their statements u/s.161 Cr.P.C recorded by PW15/IO and
found the same to be as per their statement given to the IO. In these
circumstances, the said discrepancy pointed out by Ld. Counsel for accused
persons cannot be said to be a material contradiction that goes to the root of
the case.
50. Further, after the recovery was made by PW3 and PW5 the subsequent
proceedings regarding weighing and seizing the contraband was carried out
CNR No.DLSH010066242022 Page 33 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
by PW15 in the presence of these witnesses and PW6. His deposition in this
regard is reproduced as under : –
“Thereafter I marked the two polythene bags containing ganja recovered from the
black colour bag stated to be recovered from accused Ashish as S1 and S2. I
weighed the polythenes separately on electronic weighing machine. Weight of S1
was found to be 4.952 kgs, Weight of S2 was found to be 5.080 kgs. I marked the
three polythene bags containing ganja which were kept in green colour bag stated
to be recovered from accused Ashish as S3, S4 and S5. I weighed the polythene
bags separately. Weight of S3 was found to be 5.090 kgs, weight of S4 was found
to be 5.084 kgs and weight of S5 was found to be 4.880 kgs. I kept the polythene
bags Mark S1 and S2 in the same black colour bag, prepared a cloth pullanda and
gave it mark A1. I kept the polythene bags mark S3, S4 and S5 in the same green
colour bag, prepared a cloth pullanda and gave it mark A2. Thereafter I marked
the four polythene bags which were kept in green colour bag stated to be
recovered from accused Mukesh Mishra as S6, S7, S8 and S9.I weighed the
polythene bags separately. Weight of S6 was found to be 5.080 kgs, weight of S7
was found to be 5.114 kgs, weight of S8 was found to be 5.092 kgs and weight of
S9 was found to be 5.298 kgs. I kept the polythene bags Mark S6 to S9 in the
same green colour bag, prepared a cloth pullanda and gave it mark A3. I sealed
all the parcels with the seal of VP. I handed over the seal to Ct. Pradeep after use.
I prepared seizure-memo already Ex.PW3/A which bears my signature at point C.
I also prepared seal handing over memo already ExPW3/3 which bears my
signature at point B.”
51. The aforesaid deposition of PW15 is corroborated by the seizure-memo
Ex.PW3/A as well as the tehrir Ex.PW2/5 and contents of FIR Ex.PW2/A and
also by the testimonies of witnesses to the recovery namely PW3 and PW5. It
may be noted that the aforesaid seized contraband was produced before Ld.
Magistrate during proceedings under section 52A NDPS Act on 01.07.2022
Ex. AD-1. Even as per the said proceedings from the bags recovered from
accused Ashish Mark A1 and A2, 10.020 kgs and 15.040 kgs ganja was found
to be recovered i.e. in total 25.060 kgs. Further from the pullanda mark A2
recovered from accused Mukesh Mishra, 20.560 kgs of ganja was recovered.
52. From the testimony of the aforesaid witnesses, it stands proved that on
22.06.2022 at 2.50 am, Ganja like material was found in the bags being carried
CNR No.DLSH010066242022 Page 34 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
by the accused persons. Accused Ashish was found to be carrying in total
25.086 kgs ganja like substance and accused Mukesh Mishra was found
carrying in total 20.588 kgs ganja like substance.
53. The accused persons in their statement recorded under Section 313 Cr.P.C.
claimed to be innocent and alleged that they were falsely implicated, however,
they did not mention any reason whatsoever for their false implication. No
suggestion in this regard was given to any of the witnesses during their cross-
examination. The accused neither in their statement u/s.313 Cr.P.C. nor in any
of the suggestions given to the prosecution witnesses, claimed animosity or
acquaintance with the police officials, hence there was no ground or reason
for the police to falsely implicate them in the present case. Furthermore, till
date the accused persons have not raised any protest against their alleged false
implication which shows that they have taken this plea for the sake of plea and
there is no substance in it. It may be noted that both the accused persons
claimed that they were apprehended by the police officials when they had
come from Kanpur to Delhi and had alighted from the bus at Anand Vihar Bus
Stand. Accused Mukesh Mishra in his statement u/s 313 CrPC categorically
stated that accused persons were taken to Seemapuri Golchakar where police
officials were conducting search of one or two other persons and the articles
recovered from those one or two other people was planted on the accused
persons. Thus, as per the said defence taken by accused Mukesh Mishra, the
seizure of the alleged contraband at the spot by the police officials is not
disputed, what is disputed is from whom the recovery of the alleged
contraband was made. In view of the testimony of PW2, PW3, PW5, PW13
and PW15, it stands proved beyond reasonable doubt that the recovery was
effected from the two accused persons and not from any one or two other
persons as alleged by accused Mukesh Mishra.
CNR No.DLSH010066242022 Page 35 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
54. In view of aforementioned discussions, it is held that prosecution has
successfully proved that the accused were apprehended by PW2 and PW3
along with 25.086 and 20.588 Kgs of Ganja like substance, on 22.06.2022 at
2.50 a.m.
Discussion on proceedings u/s. 55 and 52A of NDPS Act
55. As per the prosecution case, PW-15 SI Vineet, the IO of the case after the
recovery was effected from the possession of the accused, seized the same
vide seizure memo Ex. PW3/A. In total nine packets of ganja was recovered
from both the accused persons which were marked as S1 to S9 by PW15 SI
Vineet. Packets S1 to S5 were recovered from the possession of accused
Ashish and packets S6 to S9 were recovered from the possession of accused
Mukesh Mishra. The said nine packets were separately weighed on the
weighing machine. The weight of the five polythene bags containing Ganja
recovered from accused Ashish : Weight of S1 was found to be 4.952 Kgs,
Weight of S2 was found to be 5.080 Kgs. Weight of S3 was found to be 5.090
Kgs, weight of S4 was found to be 5.084 Kgs and weight of S5 was found to
be 4.880 Kgs. The weight of four polythene bags recovered from accused
Mukesh: Weight of S6 was found to be 5.080 Kgs, weight of S7 was found to
be 5.114 Kgs, weight of S8 was found to be 5.092 Kgs and weight of S9 was
found to be 5.298 Kgs.
56. After the polythene bags were weighed,
-the parcels S1 and S2 were kept in the same black colour bag, its cloth
pullanda was prepared Mark A1,
-parcels / packets S3, S4 and S5 were kept in the same green colour bag
recovered from accused Ashish, cloth pullanda was prepared Mark A2. —
CNR No.DLSH010066242022 Page 36 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
-parcels S6, S7, S8 and S9 were kept in the same green colour bag
recovered from accused Mukesh, cloth pullanda was prepared Mark A3.
57. All the three cloth pullandas marked as A1, A2 and A3, were sealed with the
seal of VP by PW15 SI Vinit. The seal was thereafter handed over to PW5 Ct.
Pradeep vide seal handing over memo Ex.PW3/3. The aforementioned bags
were seized vide seizure-memo Ex.PW3/A, which also bears signature of both
the accused. Rukka was prepared by PW15 Ex.PW15/A and the same was
handed over to PW3 Ct. Robin Kumar and PW5 Ct. Pradeep. The carbon copy
of seizure-memo and the sealed parcels A1 to A3 were also handed over to
PW3 Ct. Robin Kumar and PW5 Ct. Pradeep with direction to hand over rukka
to Duty Officer PW2 SI Okesh Pal and parcels to the SHO. PW3 Ct. Robin
Kumar and PW5 Ct. Pradeep alongwith the parcels, rukka, copy of seizure-
memo went to PS, where rukka was handed over to the Duty Officer and the
copy of seizure-memo along with sealed parcels were produced before PW12
/ SHO Inspector Vinay Yadav, at about 7.00 a.m.
58. PW12 Inspector Vinay Yadav upon receiving the copy of seizure-memo and
three parcels, affixed his seal of VY on the said three pullandas Mark A1 to
A3 and after confirming the FIR number from the Duty Officer, PW2 SI Okesh
Pal, mentioned the same on the parcels and seizure-memo. He also affixed his
signatures on three parcels as well as copy of seizure-memo.
59. PW12 Inspector Vinay Yadav, thereafter handed over the sealed parcels and
copy of seizure-memo to MHCM HC Raj Kumar (PW8) at about 8.30 a.m.,
who deposited the said parcel in Malkhana and made entry in this regard at
serial no.1953/4972 in register no.19 Ex.PW8/A, which was also
countersigned by the SHO.
CNR No.DLSH010066242022 Page 37 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
60. Thus, PW12 upon receiving the three parcels Mark A1, A2 and A3 duly
affixed his countersealed on the said pullandas bearing the seal of VY. The
deposition of PW12 in this regard is as under : –
At about 7.00 am, Ct. Robin and Ct. Pradeep came to my office and handed over
to me three sealed parcels sealed with the seal of ‘VP’ and having mark A1, A2 and
A3 and carbon copy of seizure memo. I affixed my seal on the said three pullandas
with my seal of VY. After confirming the FIR Number from the duty officer, I
wrote the same on all the parcels and copy of seizure memo. I also signed all the
three parcels and copy of seizure memo.
I then called the MHCM CP along with register no.19 in my office and MHCM
has made entry of all the details in the register no.19 and I handed over case
property and copy of seizure-memo to MHCM CP. I also signed at point A against
the relevant entry in register no.19 which is already Ex.PW8/A. In this regard, I
lodged DD entry vide no. 29A at about 8.31 am dated 22.06.2022 and same is Ex.
PW12/A which bears my signatures at point A.
61. The cross examination of this witness is limited to following questions :-
It is wrong to suggest that Ct. Robin and Ct. Pradeep did not come to my office. It
is wrong to suggest that no parcels were produced by them before me. It is wrong
to suggest that the seals on the parcels were not intact. It is wrong to suggest that
the GD entry is ante-dated and ante-timed. It is wrong to suggest that I am deposing
falsely.
62. From the examination in chief and cross-examination of this witness it is seen
that this witness duly complied with the provisions of section 55 NDPS Act
by placing his countersealed on three pullandas Mark A1, A2 and A3 and
thereafter depositing the same with MHCM PW8 HC Raj Kumar. The
testimony of this witness is further corroborated by DD No.29A Ex.PW12/A
wherein the fact regarding placing of counterseal of VY is duly recorded.
Further in the entry made by PW8 in register no. 19 Ex.PW8/A it is
categorically mentioned by this witness that he had placed counterseal of VY
on the pullandas, the said entry bears his noting and signatures in this regard.
63. Further when the case property was produced before Ld. MM on 01.07.2022
during proceedings u/s 52A NDPS Act, the Ld. Magistrate also found all the
three pullandas Mark A1, A2 and A3 sealed with the seal of VP and VY. The
CNR No.DLSH010066242022 Page 38 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
relevant portion of the proceedings u/s 52A Ex.AD-1 in this regard is as
under :-
At this stage, IO is directed to produce the case property. IO has produced three
cloth pullada of white colour which is Mark-A1, A2 and A3 and sealed with the seal
of VP and VY. Photograph of pullanda Mark-A1, A2 and A3 with seal intact is
taken.
64. Therefore, in the opinion of the Court, the case property, which was sealed at
the spot with the seal of VP by PW15 SI Vineet and was further sealed at the
PS by SHO PW 12 Inspector Vinay Yadav with the seal of VY was found intact
by the Ld. Magistrate, when the proceedings u/s.52A were conducted on
01.07.2022. Further the Ld. Magistrate vide proceedings Ex. AD-1 took out
100 grams sample each from all the nine bags and marked them as S1, S2, X1,
X2, X3, Y1, Y2, Y3 and Y4. After taking out the said samples the remaining
contraband was sealed in the same pullandas mark A1, A2 and A3 and the said
three pullandas and nine samples were sealed with the seal of court i.e. AN.
These proceedings Ex.AD-1 were admitted by accused persons on
02.12.2024.
65. Accordingly, in the opinion of the court the provisions of section 55 and 52A
were duly complied with in the present case.
Discussions on non-joining of the public witnesses
66. During course of arguments, Ld. Defence Counsel submitted that the
prosecution case is highly doubtful as no public witness has been joined during
the entire investigation and the prosecution case solely rests on the testimonies
of police witnesses who are not reliable and creditworthy being interested
police witnesses.
67. Admittedly, in the present case no public or independent witness has been
joined during course of the investigation, however it is clear from the
CNR No.DLSH010066242022 Page 39 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
testimonies of the prosecution witnesses that PW15 SI Vineet, IO that he made
sincere efforts to join public witnesses, but none agreed.
68. In this regard, PW15 deposed that he approached passerbys at Mrignaini Red
light, at the spot and also at the gate of old Seemapuri, to join the investigation,
but none agreed and went stating their engagements.
69. The witness was cross-examined on this aspect and he stated:-
“I reached at the spot at about 3.30 a.m. I asked few passerbys at Mrignaini red light, at
the spot and also at the gate of old Seemapuri to join the investigation. I did not go to
Kalyan hospital to ask any of the staff to join the investigation. I do not remember
exactly whether there was any outlet namely 24×7 near the spot. … I left the spot at
about 9.00-9.30 am. I felt no need to join the independent witness in the investigation
in the morning as the rukka l already been sent. ….. It is wrong to suggest that I have
not conducted fair investigation. It is wrong to suggest that no public person was joined
into the investigation deliberately to falsely implicate the accused persons.”
70. Thus, once it has come on record that public witness could not be joined
despite efforts having been made, then non joining of independent witness is
not fatal to the prosecution case. In this regard, this court is supported by the
case law i.e. Ajmer Singh vs. State of Haryana reported as 2010 (2) SCR
785. The relevant para reads as under:-
“It is true that a charge under the Act is serious and carries onerous consequences. The
minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In
this situation, it is normally expected that there should be independent evidence to
support the case of the prosecution. However, it is not an inviolable rule. Therefore, in
the peculiar circumstances of this case, we are satisfied that it would be travesty of
justice, if the appellant is acquitted merely because no independent witness has been
produced. We cannot forget that it may not be possible to find independent witness at
all places, at all times. The obligation to take public witnesses is not absolute. If after
making efforts which the court considered in the circumstances of the case reasonable,
the police officer is not able to get public witnesses to associate with the raid or arrest
of the culprit, the arrest and the recovery made would not be necessarily vitiated. The
court will have to appreciate the relevant evidence and will have to determine whether
CNR No.DLSH010066242022 Page 40 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actthe evidence of the police officer was believable after taking due care and caution in
evaluating their evidence.”
71. It is well settled law that the evidence of police official cannot be doubted
unless previous enmity between the accused and the police officials is shown.
In Sunil Tomar vs. State of Punjab, Criminal Appeal no. 1690-1691 of
2012 decided on 19.10.12, it was held :-
“In a case of this nature, it is better if prosecution examines at least one independent
witness to corroborate its case. However, in the absence of any animosity between the
accused and official witnesses, there is nothing wrong in relying upon their testimonies
and accepting the documents placed for basing conviction. After taking into account
the entire material relied upon by the prosecution, there is no animosity established on
the part of the official witnesses by the accused in defence and we also did not find any
infirmity in the prosecution case.”
72.Furthermore, the police officials are considered to be equally competent and
reliable witnesses and their testimony can be relied upon even without
corroboration by an independent witness if same is cogent and reliable. In
Rohtas vs. State of Haryana, JT 2013(8) SC 181, Hon’ble Supreme
Court held that :-
‘Where all the witnesses are from police department, their depositions must be subject
to strict scrutiny. However, the evidence of police officials cannot be discarded merely
on the ground that they belong to the police force and either interested in investigating
or the prosecuting agency’.
73. Further, it is also not uncommon that these days people are generally reluctant
to become part of investigation. In this regard, the Hon’ble High Court in the
case of Bheru Lal vs, State while observing that recovery cannot be doubted
for the reason of non joining of public witness held as under:-
“19. Dealing with a similar contention in ‘Ram Swaroop v. State (Govt. NCT) of Delhi‘,
2013(7) SCALE 407, where the alleged seizure took place at a crowded place yet no
independent witness could be associated with the seizure, the Apex Court inter alia
observed as under:
“7. ….We may note here with profit there is no absolute rule that police officers
cannot be cited as witnesses and their depositions should be treated with
CNR No.DLSH010066242022 Page 41 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actsuspect. In this context we may refer with profit to the dictum in State of U.P. v.
Anil Singh, 1988 Supp SCC 686, wherein this Court took note of the fact that
generally the public at large are reluctant to come forward to depose before the
court and, therefore, the prosecution case cannot be doubted for non-examining
the independent witnesses.”
74. Thus, in view of the settled legal position, the testimony of the police officials
examined in the instant case cannot be seen with suspicion merely for the
reason of non joining of independent witness as it is clear that sufficient efforts
were made by the PW-15 SI Vineet to join investigation. Furthermore, the
testimonies of the police officials do not suffer from any material contradiction
to doubt their version. Moreover, no animosity between the accused and the
police officials has been pointed out. Therefore, even otherwise there is no
reason to disbelieve the testimonies of police officials regarding non joining
of public witnesses.
Whether recovered substance is Ganja?
75. The case of the prosecution is that the substance, which was recovered from
the possessions of the accused persons is Ganja.
76. In order to prove this fact, the prosecution examined PW11 Dr. Kavita Goyal,
Assistant Director (FSL), Rohini, who testified as under :
” I am working at ISL. since 1999. On 08.07.2022 nine sealed parcels marked as
S1, S2, X1, X2, X3, Y1, Y2, Y3 and Y4 in FIR No.532/2022 dt 22.06.2022 u/s 20 NDPS
Act PS Seemapuri along with specimen seal, forwarding letter, copy of FIR, copy of
seizure memo etc were received in our office from SHO PS Seemapuri. Same were
marked to me for chemical examination. The parcels were duly sealed with two seals of
AN respectively. The seals were intact and were tallying with specimen seals.
On opening the parcels, the same were found containing dried greenish brown
colored flowering and fruiting vegetative material, stated to be ganja, weighing 100.5
gms, 107.1 gms, 101.1 gms, 94.1 gms, 104.5 gms, 95.6 gms, 94.3 gms, 96 gms and 94.8
gms respectively.
After physical, microscopic chemical and TLC examination, Exhibit-1 was
found to be ganja. After the examination, the remnants of the exhibit were kept in nine
separate parcels which were sealed with the seal of K.G. FSL DELHI.
CNR No.DLSH010066242022 Page 42 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS ActI prepared the detailed report dated 06.02.2023 which is Ex.PW11/A”
77. The witness was cross-examined, in which only one suggestion was given to
the witness, which she denied as under :
“It is wrong to suggest that I had not properly analyzed the exhibits or that I have
prepared a false report at the instance of police.”
78. The deposition of this witness has remained unchallenged, hence, from the
deposition of this witness, it stands proved that the nine sealed parcels received
at FSL on 08.07.2022 bearing the seals of AN, were found containing dried
greenish brown coloured flowering and fruiting vegetative material, which
upon physical, microscopic, chemical and TLC examination, was found to be
Ganja.
79. Ld. counsel for accused in the written submissions did not challenge the FSL
result Ex. PW11/A. He has challenged the prosecution case on this aspect on
following three grounds (as mentioned in written arguments):
“Firstly, as per record The allegedly recovered substance is stated to be beejnuma,
dandinuma, ghaas jaisa dikhne wala badbadane wala badbudaar padarth and same is
certainly not Ganja as per law.
Secondly, the recovering officers are themselves not aware of the substance that they
recovered. PW-3 Ct. Robin says ‘The recovered substance from the accused persons
seemed like ganja but I could not say with certainity that it was ganja”, while PW-5 Ct.
Pradeep says ‘I did not check their bags. The bags contained dandinuma ghassnuma
substance which seemed like ganja. Ct, Robin had told me that it was like ganja and I
had not seen ganja prior thereto’.
Thirdly, the recovery officer himself does not know what procedure was adopted to see
if it was ganja or nor. PW-5 Ct. Pradeep says ‘The field testing kit was deposited with
MHCM after testing the contraband. I do not remember who had checked the
contraband on the field testing kit. Pertinently, a field testing kit is never used for
contraband such as Ganja.”
80. PW3 Ct. Robin in his examination-in-chief regarding the recovered substance
deposed as under:
“One of the brownish colour (matiyala colour) bag was cut / torn and checked and
found “pattinuma beej with leaves”. The different kind of smell was coming from the
said bag. We felt that the said article i.e. pattinuma beej with leaves seems to be Ganja”.
81. PW5 Ct. Pradeep Yadav in his examination did not state that the substance
CNR No.DLSH010066242022 Page 43 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
recovered in his personal opinion Ganja. He stated that the recovered substance
was revealed to be Ganja. In his cross-examination, he testified as under :
“Ct. Robin had checked their bags. I did not check their bags. The bags contained
dandinumma ghassnuma substance which seemed like ganja. Ct. Robin had told me
that it was like ganja and I had not seen ganja prior thereto. Ct. Robin had given the
information in the police station. IO had recorded my statement. I had not told to the
IO that I had given the information in the police station.”
82. In the opinion of the Court, Ct. Pradeep very honestly in his cross-examination
admitted that he had never seen Ganja before the date of recovery. He stated
that Ct. Robin told him that the substance recovered was Ganja like substance.
It was argued that the said witness stated that the substance was tested with the
field testing kit, which is nit done in case of Ganja. However, it is found that
he was reexamined in this regard by the Ld. Addl PP in which he clarified that
he was unable to comprehend what was meant by the field testing kit. The said
minor contradiction does not adversely affect the recovery or the fact that the
recovered substance was Ganja.
83. Ct. Robin testified that the substance was “pattinuma beej with leaves”,
whereas Ct. Pradeep stated that the substance was “dandinuma ghaasnuma
substance.”
84. It is argued by Ld. Counsel that “pattinuma beej with leave” or “dandinuma
ghaasnuma substance” is not Ganja as per law.
85. To appreciate the said argument, it would be appropriate to reproduce the
definition of cannabis (hemp) is contained in Section 2(iii) of NDPS Act, as
under :
“(iii) “cannabis (hemp)” means–
(a) charas, that is, the separated resin, in whatever form, whether crude or purified,
obtained from the cannabis plant and also includes concentrated preparation and resin
known as hashish oil or liquid hashish;
CNR No.DLSH010066242022 Page 44 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops), by whatever name they
may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of
cannabis or any rink prepared therefrom”
(emphasis supplied)
86. As per definition, ‘Ganja’ is flowering and fruiting tops of cannabis plant. The
definition clarifies that the seeds and leaves of cannabis plant are not Ganja,
only when they are not accompanied by the tops, meaning thereby, that if the
seeds and stems are accompanied with flowering and fruiting tops, then the
entire substance is “Ganja”.
87. In support of the argument that that “pattinuma beej with leave” or “dandinuma
ghaasnuma substance” is not Ganja as per law, Ld. Counsel for the accused
relied upon judgment titled Sanjeev Kumar Vs State 2024 DHC 8163. Paras
26 to 31 of the judgment discuss whether the recovered substance in that case
was Ganja. The said paras are reproduced as under:
“26. What has been focused on is the nature of substance recovered and seized. As
regards 5.09 kg seizure from the bag, it is stated that it was “badbudar seelandar patti
aur ghasnuma beej yukt saman” which was found on smelling, as ganja. As regards
seizure from home of the applicant, the description given of 8 bags seized is of
“seelandar badbudar beej yukt wa pattidar ghasnuma saman” which was also found on
smelling, as ganja.
27. Counsel for applicant claims that this was obviously a heterogenous material which
contained leaves and seeds, material seized cannot be counted as ‘ganja’ in its entirety
for the purpose of determining quantity seized. For this, reference was made to the
definition of ganja under Section 2(iii)(b), NDPS Act which reads as under:
“(iii) “cannabis (hemp)” means–
…
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops), by whatever name
they may be known or designated;” (emphasis added)
28. It is, therefore, claimed that material can be considered ganja if it is accompanied
with flowering or fruiting tops; if not accompanied with flowering or fruiting tops, then
seeds and leaves have to be excluded. Ex facie, as per the chargesheet, applicant claims
CNR No.DLSH010066242022 Page 45 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actthat material seized was described as seedy and leafy substance and, therefore, the
material seized in its entirety would not constitute as ganja for the purpose of
determining the quantity of contraband seized, and benefit of bail ought to be given to
the applicant.
29. The FSL report dated 14th January 2021 describes exhibits/ parcels received as
containing “dried greenish brown fruiting and flowering vegetative material” which
were found to be “ganja”. Reliance of applicant’s counsel on decision of Bombay High
Court in Kunal Dattu Kadu (supra) may not come to his rescue since it is stated in said
decision that in para 17 that whether substance is ganja would have to be determined
on the facts of the case. That case involved anticipatory bail and the issue on which the
opinion of Court went in favour of accused was discrepancy in what was seized and
what was analysed.
30. Though the decision in Kunal Dattu Kadu (supra) is restricted to its own facts,
reference may be made to another recent decision by the Nagpur Bench of Bombay
High Court in Mohammad Jakir Nawab Ali v. The State of Maharashtra thr. P.S.O., P.S.
Sonala, Dist. Buldhana decision dated 20th September 2024 in Criminal Application
(BA) No.602/2024. It was noted, in a seizure of 50 kgs of ganja, that there was nothing
on record to show that before taking weight of material the IO had segregated the seeds
or other parts of the plant in order to ascertain the exact quantity of the contraband –
ganja. The contraband seized was not mentioned as including flowering or fruiting tops
of cannabis plant; since the material seized was leaves, seeds, stems, and stalks and
separation had not been carried out, the Court noted that it was difficult to ascertain
whether the quantity could be commercial. Court, therefore, granted bail to the
applicant in that case. Relevant portions of the decision read as follows:
“5. There is no dispute that commercial quantity in relation to NDPS Act for
‘ganja’ means any quantity greater than 20 kg. The Section 2(iii) (b) and (c)
defines ‘Ganja’ as the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops), by whatever, name
they may be known or designated, and any mixture, with or without any neutral
material, of any of the above forms of cannabis or any drink prepared therefrom.
6. Thus the definition of term ‘ganja’ defines and clarifies that ‘ganja’ is the
flowering or fruiting tops of the cannabis plant excluding the seeds and leaves
when not accompanied by the tops. In the case in hand, as seen from the FIR
and the investigation papers, the quantity of 50 kg. of ganja was seized from the
vehicle. However, the inventory certificate as well as the recitals of the FIR, the
panchnama shows that the seized articles were leaves, seeds, stems and stalks.
It appears that when the gunny bag was measured with the help of weighing
machine produced by the Measurer, the contraband articles containing leaves,
seeds, stems and stalks. Admittedly, none of the investigating papers shows that
either these materials were segregated and thereafter weighed
CNR No.DLSH010066242022 Page 46 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
7. The above state of affairs would make it clear that there is nothing on record
to prima facie show that before carrying weight of the seized plant of ganja, the
investigating officer had segregated the seeds or the other parts of the plant in
order to ascertain the exact quantity of ganja. In fact, none of the paper mentions
that the said contraband articles which were seized includes the flowering or
fruiting tops of cannabis plant. This fact becomes further clear from the
panchanama also. The seizure panchanama also nowhere shows that the
flowering or fruiting tops of cannabis plant were, in any other manner, were
along with the contraband articles seized from the possession of the present
applicant. Thus, on perusal of the material on record shows that what was seized
was plant i.e. leaves, seeds, stems and stalks and without separating the same,
the ganja was weighed. As the seized material was not weighed and after
separating the leaves and the other parts and moreover it is not along with the
flowering or fruiting tops. Therefore, it is difficult to ascertain whether quantity
can be said to be commercial.
8. In view of Section 37 of the NDPS Act, the power to release an accused on
bail subject to the limitation contained in Section 439 of the Cr.P.C. coupled
with the limitation contemplated in view of Section 37 itself, mainly (1) there
are reasonable ground for releasing that accused is not guilty of such offence,
(2) that he is not likely to commit such offence while on bail. The expression
reasonable ground means something more than prima facie ground it
contemplates substantial probable cause for believing that the accused is not
guilty of the offence.
9. It is significant to note that the definition of ‘ganja’ under NDPS Act takes
in its ambit only the flowering or fruiting tops of cannabis plant and excludes
the seeds and leaves when not accompanied by the tops. Thus, the definition of
‘ganja’ is restricted and it does not include the seeds and leaves of ganja plant.
The panchanama and seizure do not reflect presence of flowering or fruiting
tops on the plant. Another aspects of the matter is whether applicants could be
said to have been charged for dealing in commercial quantity of the contraband
articles. The inventory certificate mentions of the plant of ganja, which is of
greenish colour and it nowhere shows that it includes the flowering or fruiting
tops. If at all the seeds and other parts were to be counted as fruiting part, it
ought to have been excluded and weighed separately to measure the quantity of
ganja.” (emphasis added)
31. There is no clarity in the seizure memo as to whether the seized heterogenous
material contained flowering or fruiting tops; the only reference to something of that
nature comes on record from the FSL Report which mentions “dried greenish brown
fruiting & flowering vegetative material”. Even though the FSL report mentions it as
ganja, the accused would obviously have an opportunity to argue this aspect at the stage
CNR No.DLSH010066242022 Page 47 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
of trial depending on the evidence that is led.”
88. The aforesaid judgment is a judgment passed on bail application of an accused
under section 439 Cr.P.C. The Hon’ble Court relied upon two judgments of
Bombay High Court to come to the conclusion that it was a fit case for grant
of bail.
89. A similar question came up for consideration before Hon’ble Apex Court in
Shiv Kumar Mishra vs. State of Goa through Home Secretary
MANU/SC/0262/2009. Hon’ble Apex Court observed as under :
7. Learned Counsel for the appellant submitted that having regard to the definition
of “Ganja” in Section 2(iii)(b) of the NDPS Act, the seeds and leaves ought not to
have been included while weighing the seized contraband since the same was not
accompanied by tops. It was urged that excluding the seeds and leaves the actual
weight of the seized Ganja would be below 1 Kg. which would attract a much lesser
punishment of imprisonment for a term which could extend to six months or with
fine, which could extend to Rs. 10,000/-, or with both.
8. Learned Counsel for the appellant submitted that the order of the High Court
reducing the period of sentence to one year was erroneous since the seized Ganja
would be less than 1 Kg. and could not, therefore, be taken to comprise commercial
quantity.
9. Despite several opportunities, the State did not appear to contest the matter and
the same was taken up for final disposal in the absence of the State.
10. Section 2(iii)(b) of the NDPS Act defines “Ganja” as follows:
‘ganja’, that is, the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops), by whatever name they
may be known or designated;
An attempt has been made on behalf of the appellant to convince us that the seized
Ganja was not accompanied by flowering or fruiting tops and hence the weight
of the seeds and the leaves would have to be excluded on account of the said
definition, which would reduce the weight of the seized Ganja considerably so as
to exclude it from the definition of commercial quantity and attract a much lesser
sentence than when the seized commodity was treated to be of commercial
quantity.
11. The submissions made by learned Counsel for the appellant are not
convincing since from the evidence on record it has been established that the
seized Ganja consisted of a greenish brown colour leafy and flowery parts of the
plant (in moist condition) which, in terms of the definition of the expression
“Ganja”, would include the seeds and leaves of the cannabis plant since the
CNR No.DLSH010066242022 Page 48 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Actseized Ganja was accompanied by the flowery parts of the plant. As far as
exclusion of the moisture content of the seized Ganja is concerned, there is
nothing in the NDPS Act to suggest that when the weight of a quantity of Ganja
is to be ascertained, the moisture content has to be separately ascertained and
excluded. On the other hand, we are of the view that the weight of the contraband
would be the weight taken at the time of seizure.”
90. In the aforesaid judgment, Hon’ble Apex Court, was dealing with an appeal in
which the accused was convicted for being in possession of Ganja. The court
categorically observed that the definition of the expression “Ganja”, would
include the seeds and leaves of the cannabis plant where the seized Ganja was
accompanied by the flowery parts of the plant.
91. To better understand as to why the recovery witnesses stated that the recovered
substance was “pattinuma beej with leave” or “dandinuma ghaasnuma
substance”, it is necessary to understand what kind of flowers do a cannabis
plant bear i.e. whether the flowers are like that of rose, marigold etc or of some
other type. The court during its research on the topic found some images of the
cannabis flower and fruiting material on Wiki, which are reproduced as under
to better understand the morphology of cannabis plant.
92. Upon seeing the kind of flower that cannabis plant produces, one can better
understand as to why the police officials mentioned it as “pattinuma beej with
leave” or “dandinuma ghaasnuma substance”. A cannabis flower features
CNR No.DLSH010066242022 Page 49 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
dense clusters of buds surrounded by sticky, cannabinoid- and terpene-laden
trichome glands and pistils. Pistils are the cannabis’ plants reproductive organ
and its purpose is to receive pollen and produce seeds. Pistils serve as an
indicator of the plant’s maturity as they change colors over the plant’s flower
cycle from white to yellow, orange or red at full maturity.
93. Upon understanding the morphology of the cannabis plant, one can decipher,
as to why the police officials say that the it is “pattinuma beej with leave” or
“dandinuma ghaasnuma substance”.
94. Moreover, the words it “pattinuma”, “dandinuma” and “ghaasnuma”, do not
mean leaves, stems and grass, what it means is that the substance in its
physical form is having physical properties like that of leaves, stems and grass.
95. Thus, the court finds no substance in the argument of the Ld. Defence Counsel
that the recovered substance was not Ganja, or that the weight of the seeds and
leaves is to be excluded from that of the flowering and fruiting material. As
pointed out by the Hon’ble Apex Court in the aforesaid judgment, as per the
definition of “Ganja” in section 2 (iii)(b), the expression “Ganja” would
include seeds and leaves of the cannabis plant since the seized Ganja was
accompanied by the flowery parts of the plant.
Duty Location Mismatch
96. One of the arguments of the Ld. Defence counsel is that the Ct. Robin was
deputed for patrolling at DTC Depot and Ct. Satyanarayan at Pummy Sweets
as per GD No. 4A, hence, how come they were present together at Old
Seemapuri Golchakkar in front of Kalyan Hospital, where the said officials
were never deputed for patrolling.
97. To better understand the said argument, DD 4A is reproduced as under:
CNR No.DLSH010066242022 Page 50 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
98. As per the aforesaid GD, Ct. Robin was deputed for patrolling in Beat No. 4
DTC Depot and Ct. Satyanarayan in Beat No. 3 Pummy Sweets and Ct
Pradeep in in Beat No. 6 Old Seempari Gol Chakkar. They were deputed for
patrolling in beat No. 4, 3 and 6 respectively and not specifically at DTC
Depot, Pummy Sweets or Old Seepauri Gol Chakkar. They were patrolling in
different areas within the jurisdiction of the same police station and there is
nothing to show that beat No. 3, 4 and 6 were far away from each other or they
did not coincide, hence they could not have met together or whether there was
any bar/restriction that they could not patrol the area covered by those beats
together. Moreover, one of the recovery witnesses namely Ct Pradeep was
specifically assigned the duty to patrol in beat No.6 Old Seempuri Gol
Chakkar.
99. Further, no question, regarding where Ct Robin conducted patrolling and how
he reached the Seemapuri Gol Chakkar, was put to PW3 Ct Robin.
100. In the opinion of the court, the said argument of the Ld. Counsel is devoid of
merits.
CNR No.DLSH010066242022 Page 51 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
Videography and Photography not done during the proceedings
101. It was also submitted that the proceedings were not videographed or
photographed, which raises a doubt as to whether the proceedings took place
or not in the manner as pointed out by the prosecution.
102. It is true that there is no videography or photography of the recovery
proceedings which were conducted in 2022.
103. The question before the court is whether the deposition of recovery witnesses,
who have corroborated each other in material particulars, can be overlooked
or disbelieved, merely because they did not take photographs or video at the
time of serch and seizure?
104. Ld. Counsel as regards absence of videography and photography during the
proceedings relied upon judgment titled Shafhi Mohd Vs State of Himachal
Pradesh SLP Criminal 2302/2017 dt 31.01.2018; Bantu (supra) and Akhil
Ahmad Vs State of NCT of Delhi, Bail Application 2525/2024 dated
30.08.2024.
105. As per the aforementioned judgments, though it is preferable that videography
or photography be conducted during the course of investigation, however, it is
not a sine qua non in a case of recocery of contraband under the NDPS Act.
106. Perusal of judgment titled Bantu (supra) and Akhil Ahmad (supra) reveal
that the said judgments were passed in bail applications, where the accused
persons were arrested in NDPS case. Thus, the Hon’ble court at that stage
considered the importance of videography and photography of the search and
seizure proceedings, as the availability of the same at that stage of
proceedings, would have fortified the case of the prosecution and may have
raised the rigours under section 37 NDPS Act to a higher pedestal. The said
judgments were not in cases where the recovery witnesses had been examined
and the recovery was duly proved by them through deposition before the court.
CNR No.DLSH010066242022 Page 52 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
107. Though the videography and photography of the search and seizure
proceedings is no doubt desirable, but its absence cannot be a ground to
disbelieve the deposition of the recovery witnesses.
108. Further, it may be noted that as per the defence taken by accused Mukesh
Mishra, both the accused persons were taken from Anand Vihar Bus Stand to
the spot, where some articles recovered from one-two other individuals was
planted upon them. Thus, videography or photography at the spot would not
have made much difference, as it is admitted that the recovered articles and
the accused were present at the spot from where the recovery is shown to have
been effected. The defence is that the recovered articles were actually
recovered from someone else.
109. Accordingly, the absence of videography and photography at the spot during
recovery proceedings does not make much difference in the facts of the present
case.
Presumption
110. Presumption under section 35 and 54 of NDPS Act is raised in the present case
against the accused persons as the recovery of contraband has been proved
against them beyond reasonable doubt. The accused persons had failed to
rebutt the said presumption and consequently it can be held that the accused
persons were knowingly and deliberately in possession of commercial
quantity of ganja. In view of the presumption under section 54 NDPS Act, as
the accused persons were in possession of commercial quantity of ganja, hence
they committed an offence punishable under section 20(b)(ii)(C) of NDPS
Act.
It may be noted that though the charge sheet was filed under section 20 and
29 of NDPS Act, however, the accused persons were not charged for the
offence under section 29 NDPS Act vide order dated 11.07.2023. The said
CNR No.DLSH010066242022 Page 53 of 53
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Act
order was not challenged and attained finality. However, as even individually
both the accused persons were found in possession of more than 20 Kgs of
Ganja each i.e. 25.086 kgs of Ganja from accused Ashish and 20.588 kgs of
Ganja from accused Mukesh Mishra, hence, even in absence of section 29
NDPS Act, they are individually liable to be convicted for offence under
Section 20(b)(ii)(C) of the NDPS Act.
Conclusion
111. The prosecution proved beyond reasonable doubt that the accused persons
were in possession of commercial quantity of Ganja (i.e. more than 20 kgs),
as 25.086 kgs of Ganja was recovered from the possession of accused Ashish
and 20.588 kgs of Ganja was recovered from the possession of accused
Mukesh Mishra. In view of the presumption under section 35 and 54 NDPS
Act, it is presumed that the accused persons had the requisite mental state
(mens rea) to commit the offence of being in possession of narcotic drug /
ganja without any authority or licence to be in possession of the same.
112. Accordingly, accused Ashish and Mukesh Mishra are convicted of the
offence punishable under Section 20(b)(ii)(C) of the NDPS Act.
113. Both the convicts are taken into custody.
114. Convicts to be heard on sentence on 28.1.2025 at 2:00 p.m. Digitally signed
SAURABH by SAURABH
PARTAP
PARTAP SINGH LALER
Announced in the open Court SINGH Date:
2025.01.27
LALER
on 27.01.2025 16:08:54
+0530(S.P.S. Laler)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi
CNR No.DLSH010066242022 Page 1 of 4
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS ActIN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHISC No.389/22
State Vs. Ashish & Anr.
FIR No.532/22
PS : Seema Puri
U/s.20(b)(ii)(C) NDPS ActIn the matter of :-
State
(through Sh. Jitendra Sharma, Addl. PP)Vs.
1. Ashish
S/o. Sh. Narender Kumar
R/o. Village Birul, Distt. Fatehpur,
Kotwali Fatehpur, UP
2. Mukesh Mishra
S/o. Sh. Lakshman Swaroop
R/o. Village Bandi, Distt. Fatehpur,
Kotwali Fatehpur, UP
….convict persons
(Sh. Karan Verma, Advocate
for both convicts)Date of institution : 07.10.2022
Date when Judgment/conviction : 27.01.2025
Date of Sentence : 28.01.2025ORDER ON SENTENCE
1. Convict Ashish and Mukesh Mishra were convicted on 27.1.2025 for offence
under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
CNR No.DLSH010066242022 Page 2 of 4
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS ActSubstances Act, 1985 (in short “the NDPS Act“) as they were found to be in
illegal possession of total 45.674 Kg Ganja (commercial quantity) in three
pitthu bags (i.e. 25.086 Kg in two pitthu bags from convict Ashish and 20.588
Kg in one pitthu bag from convict Mukesh Mishra) on 22.06.2022 at about
2.50 a.m
2. Arguments on sentencing heard.
Punishment prescribed by law:
3. Section 20 NDPS Act reads as under :
“20. Punishment for contravention in relation to cannabis plant and cannabis.
Whoever, in contravention of any provision of this Act or any rule or order made or
condition of licence granted thereunder,–
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-
State, exports inter-State or uses cannabis,
shall be punishable,–
(i) where such contravention relates to clause (a) with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine which may extend
to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),–
(A) and involves small quantity, with rigorous imprisonment for a term which may
extend to one year, or with fine which may extend to ten thousand rupees, or with
both;
(B) and involves quantity lesser than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term which may extend to ten years, and
with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to twenty years and shall also
be liable to fine which shall not be less than one lakh rupees but which may extend
to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.” (emphasis supplied)
4. The punishment prescribed for offence under section 20(b)(ii)(C) NDPS Act
is:-
1. rigorous imprisonment for a term which
a. shall not be less than ten years
b. BUT which may extend to twenty years AND
2. fine which
CNR No.DLSH010066242022 Page 3 of 4
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Acta. shall not be less than one lakh rupees
b. BUT may extend to two lakh rupees:
Arguments:
5. The learned counsel Sh. Karan Verma for the convicts, submitted that this is
the first offence by the convicts. He further stated that convict Ashish had
undergone custody for about two years and five months and convict Mukesh
Mishra had undergone custody for about two years and two months and
requested that lenient view may be taken. Convicts belong to labour class and
poor families. Convict Mukesh is patient of leprosy and has responsibility of
his wife and two minor children as well as old age parents. Convict Ashish is
the sole bread earner supporting his old age mother who is a road side flower
vendor.
6. Ld. Addl PP on the point of sentence submitted that the convicts were in
conscious possession of commercial quantity of ganja, which shows that they
are part of syndicate dealing in drug trafficking which is adversely affecting
the youth of the country. He further submitted that such kind of activities are
a threat to the future of the nation.
Considerations:
7. At this stage of sentencing, the court acknowledges that protecting society
and preventing criminal behavior should be the objective of the law, achieved
by imposing an appropriate sentence. It is the duty of the court to award a
proper sentence considering the nature of the offence and how it was
committed. Criminal law generally adheres to the principle of proportionality,
prescribing liability according to the culpability of each type of criminal
conduct. A balance between crime and punishment is respected in principle.
8. Thus, the court must consider the facts and circumstances of this case to
determine a just and appropriate sentence for the offences under 20(b)(ii)(C)
NDPS Act, taking into account the aggravating and mitigating factors.
9. Aggravating circumstances:
a. None.
10. Mitigating circumstances:
a. The convicts have remained in custody for over two years.
b. The convicts belongs to a poor family.
c. Convict Mukesh is patient of leprosy and has responsibility of
CNR No.DLSH010066242022 Page 4 of 4
SC No.389/22
State Vs. Ashish & Mukesh Mishra
FIR No.532/22
PS: Seema Puri
U/s.20(b)(ii)(C) NDPS Acthis wife and two minor children as well as old age parents.
Convict Ashish is the sole bread earner supporting his old age
mother who is a road side flower vendor.
d. No other convictions have been reported against the convict.
Order on Sentence:
As the convicts have been convicted for offences under 20(b)(ii)(C) NDPS
Act on 27.01.2024, in view of the mitigating circumstances and no previous
involvement of the convicts, they are sentenced as follows:
1. Convict Ashish is sentenced to:
a. rigorous imprisonment for a term of ten years
b. pay fine of one lakh rupees
c. in default of payment of fine rigorous imprisonment for
six months.
2. Convict Mukesh Mishra is sentenced to:
a. rigorous imprisonment for a term of ten years
b. pay fine of one lakh rupees
c. in default of payment of fine rigorous imprisonment for
six months.
11. The convicts are given the benefit under Section 428 Cr. P.C.
12. Fine not paid.
The file be consigned to the Record Room. Digitally signed
SAURABH by SAURABH
PARTAP SINGH
PARTAP LALER
Announced in the open Court SINGH Date:
on 28.01.2025 LALER 2025.01.28
14:36:13 +0530
(S.P.S. Laler)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi
[ad_1]
Source link