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Delhi District Court
State vs Azmi on 31 July, 2025
DLSH010045362019 Page 1 of 37
SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
IN THE COURT OF SPECIAL JUDGE (NDPS), SHAHDARA,
KARKARDOOMA COURTS, DELHI
SC No. 269/2019
State Vs. Azmi
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) NDPS Act
In the matter of :-
State
...(through Sh. Jitendra Sharma, Addl. PP)
Vs.
Azmi,
S/o Late Sh. Azam,
R/o House No. 377, Block-I, Intezar Ka Makaan,
Sunder Nagri, Delhi
....accused
(through Ld. LAC Sh. Rajiv Pratap Singh, Advocate)
Date of institution : 17.07.2019
Date when Judgment reserved : 29.07.2025
Date of Judgment : 31.07.2025
Final decision : Acquitted
JUDGMENT:
–
1. This is a case in which accused Azmi has faced trial for
commission of offence punishable under Section 20 of the Narcotic Drugs
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SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
and Psychotropic Substances Act, 1985 (in short “the NDPS Act“) on the
allegation that he was found in possession of contraband i.e. ‘ganja’ (6.250 kg
was recovered from accused Azmi) without any permit or licence/authority in
contravention of provisions of the NDPS Act.
2. The case of the prosecution as borne out from the charge-sheet is as
under : –
2.1 Brief facts of the case are that on 16.05.2019 at about 3.30 pm a
secret informer arrived in PS Nand Nagri and met HC Deepak and conveyed
him a secret information that a drug peddler namely Azmi has been bringing
contraband ganja from Noida, UP. He sells the same to number of persons in
Nand Nagri and Mandoli area. As per secret informer Azmi would be coming
on a black colour Honda Scooty with ganja at around 5.00 pm to 6.00 pm on
16.05.2019 at the isolated place i.e. service road, under Mandoli Flyover, Near
Railway Line, Nand Nagri and will deliver the ganja with his associates, if
raided Azmi can be caught with ganja.
2.2 HC Deepak produced the secret informer to SI Subhash Kumar.
After satisfaction, SI Subhash conveyed the information to SHO. SHO also
examined secret informer and verified the credentials of information and he
directed SI Subhash Kumar to take a legal action.
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SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
2.3 Accordingly a raiding party was constituted by SI Subhash Kumar.
At about 5.30 pm one black scooty came under Mandoli Flyover and on
identification from secret informer, the raiding party surrounded the scooty and
apprehended the accused who disclosed his identity as Azmi s/o Azam. On
search of his scooty bearing no. DL 6CA 2764 one plastic polythene bag of
green and golden colour having a mark of Accha Basmati Rice was found on
the foot side of the scooty. The said bag containing one white colour polythene.
Polythene was containing ganja and on weighing the same it was found to be
6.250 grams. Accordingly case U/s 20(b)(ii)B/25 of NDPS Act is made out
against the accused.
3. After compliance of section 207 Cr.P.C., as per order on charge,
charge under Section 20(b)(ii)(B) of the NDPS Act (though Section 21(B)(ii)
NDPS Act was inadvertently mentioned in the charge, however it has been
correctly mentioned in the order on charge that charge U/s 20(b)(ii)(B) NDPS
was made out against the accused) was framed against accused on 30.11.2021 to
which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined nine
witnesses. Brief outline of the testimonies of the prosecution witnesses is
discussed as under:-
5. PW-1 SI Subhash is the first IO. He deposed that on 16.05.2019,
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SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
he was posted as SI at PS Nand Nagari. On that day HC Deepak came to him
along with secret informer at PS Nand Nagri. The said secret informer apprised
that one person in the name of Azmi who was involved in the cases of supplies
of illegal contraband would come under Mandoli Flyover Main Wazirabad
Road, Near Railway Line, Nand Nagri on a scooty, who can be apprehended if
raided. This witness shared the said information with SHO Inspector Avtar
Singh. SHO instructed him to do as per law upon which he prepared a raiding
party constituted ASI Pawan and HC Deepak. He lodged DD entry 39B
regarding the above mentioned facts and compliance of provision of section 42
of NDPS Act. The said DD entry is Ex.PW1/A. Thereafter he along with
above mentioned police officials and secret informer left from the police station
at about 3.45 pm on ERV and reached within ten minutes at the spot i.e.
Mandoli Flyover Main Wazirabad Road, Near Railway Line, Nand Nagri. He
asked 4-5 public persons to join the investigation but none agreed to join the
investigation. He briefed the team. Between 5.15-5.30 pm they saw that one
person was coming from the side of Shamshan Ghat and going towards Nand
Nagri on Honda black colour scooty. On the pointing out of secret informer they
stopped him. This witness apprised the said information which he had received
and asked his name, who revealed his name as Azmi.
6. Thereafter he apprised him of his legal right by saying that he can
get himself searched as well as search the raiding team in the presence of any
Gazetted officer or the Magistrate however accused refused to get himself
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
searched in the presence of any Gazetted officer or the Magistrate. He also
refused to search the raiding party. This witness noted down the denial of
accused on the notice under section 50 NDPS Act. Photocopy of the same is
marked as Mark ‘X’. The denial of the accused is mark ‘Y’ and also accused put
his signature on the said notice. The said notice was also signed by ASI Pawan
and HC Deepak. It is further stated that the reply of the said notice was read
over to the accused before obtaining his signature. It is further stated that he
thereafter searched the scooty DL 6SAZ 7654 and one katta was lying on the
front foot rest on the said katta following words were mentioned “Achha
Basmati Rice”. The said katta was tied with the help of rope. This witness
opened the said katta and found one white colour polythene containing
contraband ganja (dry green leaves) was found in it and he smelled the same
and found the said contraband was ganja. He was carrying IO kit including
electric weighing machine. He weighed the said contraband and it was found
6.250 kilograms of ganja.
7. It is further stated that he took two samples of 50-50 grams each
from the said katta and prepared two pullanda as sample by putting it into white
cloth and sealed the same with the seal of SK and same were marked as 1A and
1B. Remaining contraband was also sealed with the seal of SK. The seizure
memo of all the three pullandas i.e. two samples pullanda and remaining
contraband is Ex.PW1/B. He also seized the scooty which is Ex.PW1/C. He
prepared the rukka which is Ex.PW1/D. It is further stated that he prepared the
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
report under section 57 NDPS Act which is Ex.PW1/D1. He handed over the
seal to HC Deepak after use. He also handed over the original rukka and the
recovered case property in sealed condition and seizure memo of the case
property to HC Deepak with the instructions to hand over the case property to
SHO PS Nand Nagri. After registration of the case HC Deepak came back to the
spot along with SI Amrender. HC Deepak handed over me the original rukka
and copy of FIR to him.
8. This witness narrated the facts of the case to SI Amrender. He also
handed over the accused to SI Amrender. SI Amrender prepared the site plan at
his instance which is Ex.PW1/E. SI Amrender interrogated the accused. After
interrogation he arrested the accused vide arrest memo which is Ex.PW1/F. He
had also conducted the personal search of accused vide memo which is
Ex.PW1/G. It is further stated that during the personal search of accused
original notice under section 50 of the NDPS Act and one mobile phone Vivo
were recovered from the accused. Disclosure statement of accused was recorded
by SI Amrender which is Ex. PW1/H. He correctly identified the accused
present in the court. The case property was produced by MHCM, samples were
bearing seal of FSL KG DELHI and remaining case property was bearing seal
of ASR only. Same were opened and duly identified by this witness. He
exhibited the samples as Ex.P-1, Ex.P-2 and remaining contraband as Ex.P-3.
He also exhibited the original report under section 57 of the NDPS Act which is
Ex.PW8/A. Identification of scooty was not disputed during trial. It came in his
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
evidence that original notice under section 50 of the NDPS Act is not traceable.
9. In his cross-examination, it is admitted that seizure proceedings
were neither photographed nor videographed. No CCTV camera was found
installed near the place of recovery. It is denied by him that no notice under
section 50 of the NDPS Act was given to the accused or due to that reason no
such notice was placed before the court. It is further denied by him that nothing
was recovered from the possession of accused or that the contraband was
planted upon the accused. It is further denied by him that accused has been
falsely implicated in the present case after being taken from his house.
10. PW-2 SI Narender Singh is the duty officer who deposed that on
16.05.2019 at about 10.50 pm HC Deepak brought the rukka sent by SI
Subhash. On his dictation FIR was registered by computer, the FIR is Ex.
Ex.PW2/A. He had also made endorsement on the rukka which is Ex.PW2/B.
He has also produced the certificate under section 65B of the Evidence Act is
Ex. PW2/C.
11. PW-3 Avtar Singh has deposed that on 16.05.2019 he was posted
as SHO at PS Nand Nagri and at about 03.00 pm, SI Subhash along with secret
informer came in his room. Secret information was shared with him. On being
satisfied of the credentials of the secret informer as well as secret information,
he instructed SI Subhash to constitute a raiding party and to take appropriate
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SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
action in this regard. At about 11.00-11.30 pm HC Deepak arrived in the PS
after registration of FIR and handed over to him the case property, FSL form,
two copies of seizure memos of ganja and three pullandas which were duly
sealed with the seal of SK. The seal samples were marked as 1A and 1B and the
plastic katta bears the mark as serial no.1. The seal of SK was intact. He put his
seal of ASR on the three pullandas as well as one on the FSL form. Thereafter
he asked FIR number from the duty officer and wrote the same on all the three
pullandas, FSL form and seizure memos. Thereafter he handed over the case
property, seizure memo and FSL form to the MHCM with instructions to make
entry in the register no.19. He then lodged GD No.5A dated 17.05.2019 for the
respective procedure conducted by him.
12. It is further stated that on 17.05.2019 accused Azmi (correctly
identified by the witness) was produced before him by SI Amrender. It is also
stated by him that he has identified the case property. Register no. 19 was
produced before him. He pointed out that entry qua the present case is at sl no.
3978 dt. 16.05.2019. Copy of entry is exhibited as Ex.PW3/1 (OSR). The
computerized copy of GD no.5A dt. 17.05.2019 is Ex.PW3/2.
13. In his cross-examination, it is stated by him that he had conveyed
the secret information to ACP but did not make any entry regarding the same.
14. PW-4 ASI Pawan Kumar has deposed on the same line as
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
testimony of PW1 Subhash Kumar. He also identified the case properties. This
witness was also cross examined by ld. LAC for accused.
15. PW-5 Smt. Kavita Goyal, the Assistant Director (Chemistry) who
was posted at Forensic Science Laboratory (FSL), Rohini. She deposed that on
15.10.2019 two sealed parcels were marked to her for chemical analysis. She
chemically examined the exhibits and prepared her detailed report which is
Ex.PW5/A, whereby she opined the exhibit ‘Ex.1A and Ex.1B’ to be ganja
(cannabis).
16. PW-6 HC Deepak has deposed that on 16.05.2019, he was posted
as HC at PS Nand Nagari. On that day SI Subash told him about the information
received from one secret informer that one person in the name of Azmi who is
involved in the cases of supplies of illegal contraband would come under
Mandoli Flyover Main Wazirabad Road, Near Railway Line, Nand Nagri on a
scooty and he can be apprehended if raided. It is further stated that SI Subash
shared the said information with SHO Inspector Avtar Singh and on
instructions of SHO, SI Subhash prepared a raiding party and also lodged DD
entry in the police station in compliance of provision of section 42 of NDPS
Act. On all other aspects, he deposed on same lines as SI Subhash Kumar. It is
further stated by him that he took the rukka prepared by SI Subhash to police
station along with case property. Case property was handed over by him to SHO
and he also got the FIR registered on the basis of rukka. After registration of
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
FIR, he returned back to the spot along with rukka and copy of FIR and handed
over the same to SI Amrender. On all other aspects he deposed on the same
lines as deposed by SI Subhash Kumar.
17. PW-7 SI Amrender is the second IO. He deposed that on
16.05.2019, he was posted at PS Nand Nagri and on that day, Duty Officer
handed over copy of FIR and original rukka to him. It is further stated that he
alongwith HC Deepak reached at the spot where SI Subhash, ASI Pawan and
the accused met him. He correctly identified the accused. It is further stated that
SI Subhash handed over the custody of the accused and the documents to him.
This witness entered FIR Number and other particulars on the documents
prepared by SI Subhash. He prepared site plan at the instance of SI Subhash
which is Ex. PW 1/E. It is further stated that he arrested the accused vide arrest
memo, which is Ex. PW 1/F and he personally searched the accused vide
personal search memo which is Ex. PW 1/G. It is further stated that one mobile
phone make Vivo V15 and original notice u/s 50 NDPS Act were recovered
from the personal search of accused. He recorded disclosure statement of the
accused which is Ex. PW 1/H. It is further stated that the accused alongwith
scooty was brought back to the PS. He prepared report u/s 57 NDPS Act
regarding arrest of the accused and submitted the same for onward transmission
to the ACP concerned, which is exhibited as Ex. PW 7/A. He produced the
accused before the court and obtained one day PC remand of accused for search
of source of contraband but in vain. He sent the exhibits to FSL for analysis.
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
After completion of investigation, charge-sheet was filed by him for trial.
18. In his cross-examination, it is admitted by him that he has not made
any public person as a witness to the documents prepared by him. It is further
denied by him that no notice under section 50 of the NDPS Act was recovered
from the personal search of accused. It is further denied by him that the accused
was not arrested at the place and the time as narrated by him. It is further denied
by him that accused has been falsely implicated in the present case after being
taken from his house. It is further denied by him that signatures of accused were
taken on blank papers and blank typed papers which were later on converted
into false and fabricated disclosure statement and other document.
19. PW-8 Sh. Anand Kumar Mishra, Addl. DCP has deposed that on
16.05.2019 he was posted as ACP, Sub Division Nand Nagri. It is further stated
that Inspector Avtar Singh SHO PS Nand Nagri telephonically informed him
about the secret information received by SI Subhash Kumar regarding
contraband and thereafter he directed the SHO to take appropriate legal action.
It is further stated that DD No.39B dt. 16.05.2019 regarding secret information
was placed before him by his Reader and he has seen the same. It is further
stated that on 17.05.2019, his Reader has placed the reports under section 57 of
the NDPS Act prepared by SI Subhash Kumar regarding seizure of contraband
and one report under section 57 of the NDPS Act regarding arrest of the accused
prepared by SI Amrender before him and he has seen and signed the same. The
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STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
report under section 57 of the NDPS Act prepared by SI Subhash Kumar
regarding seizure of contraband is Ex.PW8/A. The report under section 57 of
the NDPS Act regarding arrest of the accused prepared by SI Amrender is
Ex.PW8/B. Copy of DD No.39B is Ex.PW8/C. Copy of dispatch no.1500 and
1507 regarding receipt of reports under section 57 of the NDPS Act is
Ex.PW8/D (OSR).
20. In his cross-examination, It is denied by him that entries in register
are ante-dated. It is admitted by him that DD No.39B Ex. PW8/C does not bear
his signature.
21. PW-9 HC Arvind Kumar has deposed that on 19.07.2019, he got
deposited two sealed parcels bearing seals of ‘SK’ and ‘ASR’ mark 1A and 1B,
sample seals, along with FSL forms and other documents at FSL, Rohini vide
RC Nos. 74/21/19 after collecting the same from the malkhana. After depositing
the pullandas at FSL, Rohini, he handed over the receipt of acknowledgment
issued by FSL, Rohini to MHCM. He also deposited that so long as the exhibits
were in his possession, the same were intact and not tampered with. The copy of
RC is Ex.PW6/B and receipt of FSL is Ex.PW6/C. This witness was cross
examined by Ld. LAC for accused.
22. After closing of the prosecution evidence, statement of accused
Azmi under Section 313 Cr.P.C. was recorded wherein he pleaded his
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FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
innocence and claimed that he has been falsely implicated in the present case.
The accused opted not to lead evidence in his defence.
23. I have heard the Ld. Additional Public Prosecutor as well as Ld.
LAC for the accused and perused the record carefully.
24. It is contended by Ld. Addl. PP for the State that all the procedures
as per NDPS Act has been complied with in the present matter at the time of
recovery and thereafter. It is contended that 6.250 kgs ganja was recovered from
the accused. There is nothing on record to suggest that police officials had any
enmity with the accused. Thus, the offence U/s 20(b)(ii)(B) of NDPS Act is
proved beyond reasonable doubt against the accused.
25. Per contra, it is contended on behalf of the accused that accused has
been falsely implicated in the present case. He was picked from his house and
falsely implicated that is why original notice U/s 50 of the NDPS Act could not
be produced in the present matter during trial. It is further contended that place
of occurrence was a thickly populated place, but no public witness has been
joined in the investigation. It is also contended that samples were drawn by the
IO at the spot. Thus, Section 52A of the NDPS Act has not been duly complied
with in the present matter. It is further contended that there is no video
recording or the photography of the search and seizure procedures.
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FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
Legal Requirement to prove the Charges :-
26. Accused has been charged for offence U/s 20(b)(ii)(B) 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)
27. 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 :
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985“No person shall–
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-State, import into India, export 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)
28. As per the Section, possession of all narcotic drugs is prohibited by
Section 8.
29. 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;
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
30. As per the definition, ‘narcotic drug’ includes cannabis (hemp).
Therefore, the possession of cannabis (hemp) is prohibited by Section 8 of
NDPS Act.
31. 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)
32. “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.
33. 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 :-
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985“(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.”
34. 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.
35. In order to prove the charges u/s.20(b)(ii)(B) NDPS Act, the
prosecution is required to prove the following facts :
(1) That the accused was in possession of contraband.
(2) That the possession was in contravention of the provision of the
Act or any rule on order made or condition of license granted thereunder.
(3) That the contraband was Ganja.
(4) That the quantity of the contraband was intermediate (i.e. less
than 20 Kgs and more than 1 Kg), for Section 20(b)(ii)(B).
36. Besides proving the aforesaid facts, the prosecution is also required
to prove that the investigating agency carried out the investigation in
compliance with the provisions of NDPS Act. The investigating agency must
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
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 as held by Hon’ble Bombay High Court
in the case titled as Koyappakalathil Ahamed Koya vs. A.S. Menon and Ors.
(03.07.2002 – BOMHC) : MANU/MH/1838/2002 :-
“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.”
Thus, 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.
37. It is settled legal proposition that the procedure provided under
Chapter V of the NDPS Act has to be scrupulously followed for the Court to
raise such presumption. For raising the presumption U/s 54 of the Act it must be
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
first established that recovery was made from the accused and the procedure
provided under the NDPS Act followed thoroughly without fail. It is further
settled law that for attracting the provision of Section 54 of NDPS Act, it is
essential for the prosecution to establish the element of possession of
contraband by the accused beyond reasonable doubt for the burden to shift to
the accused to prove his innocence. This burden on the prosecution is a heavy
burden. To decide whether the burden has been discharged or not by the
prosecution, it is relevant to peruse the record and evidence and consider the
submissions made by the parties.
ANALYSIS OF EVIDENCE
38. 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
39. 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 consta-
ble) of the departments of central excise, narcotics, customs, revenue intelligence
or any other department of the Central Government including para-military forces
or armed forces as is empowered 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 empowered in this behalf by general
or special order of the State Government, if he has reason to believe from per-
sonal knowledge or information given by any person and taken down in writing
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
that any narcotic drug, or psychotropic substance, or controlled substance in re-
spect 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 con-
cealed 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 en-
try;
(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 be-
lieve to be 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 of-
fence punishable under this Act or furnish evidence of holding any illegally ac-
quired 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 rea-
son 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
authorisation cannot be obtained without affording opportunity for the conceal-
ment 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 sun-
rise 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 sev-
enty-two hours send a copy thereof to his immediate official superior.”
(emphasis supplied)
40. With respect to the compliance of Section 42 NDPS Act, PW-1 SI
Subhash testified that HC Deepak came to him alongwith a secret informer who
had already conveyed the secret information to HC Deepak, the said secret
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
informer informed that accused Azmi would come under Mandoli Flyover,
Wazirabad road, on a scooty with contraband and can be apprehended if raid is
conducted. On that, SI Subhash took the secret informer to SHO Inspector Avtar
Singh who verified the information and thereafter instructed SI Subhash to take
action as per law. On that he prepared a raiding party and also lodged DD Entry
No. 39B in the Police Station in compliance of Section 42 of NDPS Act. The
said DD Entry is on record as PW-1/A. PW-3 ACP Avtar Singh (the then SHO)
deposed on the same lines, he stated that after being satisfied with the credentials
and the secret information, he instructed SI Subhash to constitute a raiding party.
41. DD No. 39B (Ex. PW-1/A) corroborates the testimony of PW-1 as
in the said DD Entry it is categorically mentioned that a secret informer arrived
in P.S. Nand Nagri and met HC Deepak and conveyed him a secret information
that a drug peddler namely Azmi would be coming on black Honda scooty with
ganja at around 4:30 pm on 16.05.2019 under Mandoli Flyover.
42. However, testimony of PW-6 HC Deepak is in contravention of the
testimony of PW-1 SI Subhash, PW-3 Sh. Avtar Singh (the then SHO) and DD
Entry No. 39B. As it is stated by HC Deepak that on 16.05.2019 SI Subhash told
him about the information received from one secret informer qua accused Azmi,
that he would come with contraband under Mandoli Flyover.
43. Thus, the story of prosecution that the secret information was
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
received by HC Deepak has been belied by testimony of HC Deepak (PW-6),
thus the very basis of initiation of raid has been shaken.
44. In the present matter, as per DD Entry No. 39B whereby police
proceedings were started, it is apparent that the secret information was received
by HC Deepak (an empowered officer), but was reduced into writing not by him,
but by SI Subhash, which is contrary to the express mandate of law as per
Section 42 of the NDPS Act.
45. In Directorate of Revenue and Another Vs. Mohammed Nisar
Holia, (2008) 2 SCC 370, Hon’ble Supreme Court categorically held that the
officer who first receives the information is mandatorily required to reduce it
into writing, and this duty cannot be delegated. The Court deemed non-
compliance with this statutory mandate as fatal to the prosecution case.
Furthermore, in Sarija Banu and Another Vs. State through Inspector of Police,
2004 SCC OnLine SC 264, the Supreme Court reiterated that strict compliance
with Section 42 is mandatory and must be examined carefully while considering
bail applications.
46. In Gulab Rai @ Chetan Vs. State (NCT of Delhi), Bail Appln.
3840/2023, decided on 19.01.2024 Hon’ble High Court of Delhi has held that
compliance with the mandate of Section 42 of the NDPS Act is compulsory and
cannot be bypassed. It was emphasized that the officer who first receives the
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
secret information must himself reduce it into writing. Any deviation from this
statutory requirement undermines the procedural safeguards and renders the
action non-compliant.
47. As per Section 42 of the NDPS Act, the Central Government and
State Government may empower any officer, superior in rank to a Peon, Sepoy
or Constable to take action U/s 42 i.e. conduct search, seizure and arrest as per
the said section without warrant or authorisation. Further, in a notification dated
14.11.1985 which is reproduced here under officials of Delhi Police superior in
rank to a Constable were conferred power to take action U/s 42 of the NDPS
Act:-
No. F.10(76)/85-Fin.(G):-In exercise of the powers conferred by sub-section (I) of
section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (6l of
1985) read with the Government of India, Ministry of Home Affairs Notification
No.S.O. 818(E) dated the 8th November, 1985 the Administrator of the Union
territory of Delhi is pleased to empower all officers (being officers superior in
rank to a peon or constable) of the following Departments of the Delhi
Administration, Delhi, if they have reason to believe from personal knowledge or
information given by any person and taken down in writing, that any narcotic
drug, psychotropic substance in respect of which an offence punishable under
Chapter IV of the said Act has been committed or any document or other article
which may furnish evidence of the commission of such offence is kept or
concealed in any building, conveyance or enclosed place within the Metropolitan
Area of Delhi, between sunrise and sunset, to :
(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 material used in the manufacture
thereof and any other article and any animal or conveyance which he has
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985reason to believe to be liable to confiscation under the said Act and any
document or other article which he has reason to believe may furnish
evidence of the commission of any offence punishable under Chapter IV of
the said Act, relating to such drug or substance; 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
Chapter IV of the said Act relating to such drug or substance;
Provided that if such officer has reason to believe that a search warrant or
authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for 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
1. Revenue Department;
2. Drugs control Department;
3. Excise Department; and
4. Police Department.
48. As per the aforesaid notification published in Delhi Gazette on
14.11.1985, all the police officials of Delhi Police superior in rank to a
Constable have been empowered by the Administrator to exercise powers U/s
42(1) NDPS Act. According to the said notification r/w Section 42(1) NDPS
Act, PW-6 HC Deepak, being a Head Constable in Delhi Police was empowered
to act U/s 42 of the NDPS Act. Thus, the secret information should have been
reduced into writing by HC Deepak only, which has not been done in the
present matter. Thus, it can be safely held that mandate of Section 42 of the
NDPS Act, has not been duly complied with. Such deviation contravenes the
settled legal position laid down in the cases titled as Directorate of Revenue and
Another Vs. Mohammed Nisar Holia, (2008) 2 SCC 370 and Gulab Rai @
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
Chetan Vs. State (NCT of Delhi), Bail Appln., 3840/2023 decided on
19.01.2024.
49. The truthfulness of recording of DD Entry No. 39B (Ex. PW-1/A)
is also doubtful due to following reasons :-
(i) In the present matter, two DD entries have been proved on record,
one is GD No. 005A dated 17.05.2019 qua submission of seized case property
to SHO and another DD entry is DD Entry No. 39B dated 16.05.2019. The GD
No. 005A is properly uploaded on CCTNS. The copy of the same produced
before the Court is computer generated copy taken out from the system of
CCTNS. However, DD Entry No. 39B does not appears to be registered on
CCTNS. The copy of the same produced before the Court is simply a typed
copy prepared by SI Subhash Kumar. It is not the computer generated copy of
the DD entry recorded on CCTNS, neither any DD Register has been brought
before the Court, to show if the DD Entry No. 39B was by-hand recorded in the
DD Register.
(ii) DD Entry No. 39B is bearing an empty stamp, wherein space is
provided for writing dispatch number and date, but no dispatch number or date
has been mentioned on this DD entry, though it is claimed by PW-8 Sh. Anand
Kumar Mishra, the then ACP that DD Entry No. 39B was placed before him by
his Reader. However, PW-1 SI Subhash Kumar and PW-3 Sh. Avtar Singh (the
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985then SHO) have nowhere stated that they had sent this DD to ACP. No entry in
the Dispatch Register of ACP has been shown qua receipt of DD Entry No.
39B.
50. Per contra, two reports U/s 57 of the NDPS Act, one prepared by SI
Subhash Kumar (Ex. PW-8/A) and another prepared by SI Amrendra (Ex. PW-
8/B) were also forwarded to ACP concerned. The same are bearing due stamp
qua their dispatch from Police Station vide no. 1500 and 1505, both dated
17.05.2019. The same are also bearing stamp qua receiving at the office of ACP
vide diary no.1 & 2, dated 17.05.2019. Even Dispatch Register kept at the office
of ACP has been exhibited as Ex. PW-8/D, which is having entries qua receipt
of both the reports U/s 57 of the NDPS Act. However, no such dispatch number,
receipt number or entry in Dispatch Register are proved on record qua DD
Entry No. 39B.
51. In view of the above-stated circumstances, the defense taken by the
accused that he has been falsely implicated cannot be ruled out as the very first
DD entry from which prosecution has started appears to be doubtful and ante-
timed.
52. According, to the aforesaid notification dated 14.11.1985 and bare
reading of Section 42(1), it is clear that PW-1 SI Subhash, being a Sub-
Inspector in Delhi Police was not required to obtain any authorisation from PW-
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
8 the then ACP before proceeding to take action U/s 42(1) of NDPS Act on the
secret information. Therefore, PW-1 SI Subhash was competent to conduct
search, seizure and arrest in the present matter as the proceedings were
conducted before sunset i.e. at 5:30 pm.
Discussion on the point of compliance of Section 50 of NDPS Act
53. Section 50 NDPS Act is as under :-
“Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any
person under the provisions of section 41, section 42 or section 43, he shall, if
such person so requires, take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in section 42 or to the
nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring
him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(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)
54. As per prosecution case, after apprehension of the accused, he was
served with the mandatory notice under Section 50 of the NDPS Act, and only
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
after his refusal to avail his legal rights, his search was carried out. However, in
his statement recorded under Section 313 Cr.P.C., in answer to question no. 04,
the accused denied that he was given notice U/s 50 NDPS Act and that his
refusal was recorded on the same. An interesting thing in the present case is that
the original notice U/s 50 NDPS Act which has been shown to be recovered in
the personal search of the accused, has never been produced in the Court. It was
observed in the testimony of PW-1 that as per report received from ACP, Sub-
Division, Nand Nagri, despite the best efforts the said notice is not traceable.
Thus, the original notice U/s 50 NDPS Act could not be proved on record, which
raises doubt qua serving of that notice on the accused.
55. In view of the submission of Ld. Addl PP another question that
came up for consideration of the Court is: Whether compliance of Section 50
NDPS Act was required in the present case as the recovery was effected from
the vehicle being driven by the accused and not from the person of the accused?
56. It may be noted that from the bodily search of the accused, no
contraband was recovered. The contraband (ganja) was found in a katta lying on
the front foot rest of the scooty which the accused was riding at the time of his
apprehension. As regards recovery made from katta, briefcase or vehicle of the
suspect is concerned, it has been observed by the Hon’ble Apex Court that the
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
provisions of section 50 NDPS Act do not apply to recoveries other than those
made from the person of the accused.
57. In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat 2000 Cr.L.J
1384 four gunny bags were found in an auto rickshaw which the suspect was
driving and there was no other person present. The argument based on non-
compliance of Section 50, as explained in the case of State of Punjab Vs. Baldev
Singh and Ors., MANU/SC/0981/1999, was rejected on the ground that the
gunny bags were not inextricably connected with the person of the accused.
58. In Madan Lal Vs. State of H.P. MANU/SC/0599/2003 it was held
that Section 50 would apply in the case of search of a person as contrasted to
search of vehicles, premises or articles.
59. In Sarjudas Vs. State of Gujarat, 2000 Cr.L.J 509 suspect were
riding a scooter on which a bag was hanging in which charas was found. Section
50 was held not applicable as it was not a case where the person of the accused
was searched.
60. Hon’ble Apex Court in State of Punjab Vs. Baljinder Singh, 2019
INSC 1145 made following observations in this regard :-
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985“16. As regards applicability of the requirements Under Section 50 of the Act are
concerned, it is well settled that the mandate of Section 50 of the Act is confined
to “personal search” and not to search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its
judgment in Baldev Singh clearly states that the conviction may not be based
“only” on the basis of possession of an illicit Article recovered from personal
search in violation of the requirements Under Section 50 of the Act but if there be
other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the Accused did not result in recovery of
any contraband. Even if there was any such recovery, the same could not be relied
upon for want of compliance of the requirements of Section 50 of the Act. But the
search of the vehicle and recovery of contraband pursuant thereto having stood
proved, merely because there was non-compliance of Section 50 of the Act as far
as “personal search” was concerned, no benefit can be extended so as to invalidate
the effect of recovery from the search of the vehicle. Any such idea would be
directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip’s case, however, has not adverted to the
distinction as discussed hereinabove and proceeded to confer advantage upon the
Accused even in respect of recovery from the vehicle, on the ground that the
requirements of Section 50 relating to personal search were not complied with . In
our view, the decision of this Court in said judgment in Dilip’s case is not correct
and is opposed to the law laid down by this Court in Baldev Singh and other
judgments.
19. Since in the present matter, seven bags of poppy husk each weighing 34 kgs.
were found from the vehicle which was being driven by Accused-Baljinder Singh
with the other Accused accompanying him, their presence and possession of the
contraband material stood completely established.”
61. In view of the law laid down in State of Punjab Vs. Baldev Singh,
(1999) 6 SCC 172 and State of Punjab Vs. Baljinder Singh, 2019 INSC 1145 as
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
well as other judgments cited above, it is held that the compliance of Section 50
NDPS Act is not mandatory in the present case, as the recovery was effected
from the vehicle being driven by the accused and not from the person of the
accused. Nonetheless from non-production of original notice U/s 50 NDPS Act,
it can be held that the police officials were not diligent in executing their duties
and in preserving the records.
62. Section 55 of the NDPS Act was duly complied with in the present
matter as SHO has also put his seal on the samples and contraband recovered,
before depositing the same in the maalkhana.
63. Section 57 of the NDPS Act which requires that :-
“Whenever any person makes any arrest or seizure, under this Act, he shall,
within forty-eight hours next after such arrest or seizure, make a full report of all the
particulars of such arrest or seizure to his immediate official superior.”
64. In the present matter, there are two reports U/s 57 NDPS Act one is
Ex. PW-1/D1 which was prepared by SI Subhash Kumar and another one is Ex.
PW-7/A which was prepared by SI Amrendra, both have been duly proved on
record. Both have been submitted to ACP concerned within 48 hours of
recovery. Accordingly, in the opinion of the Court the provisions of Section 57
of the NDPS Act were duly complied with by the Investigating Agency in the
facts of the present case.
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985
Discussion on the point of recovery of contraband
65. In the present matter, all the police officials have stated that as per
secret information, between 5:15-5:30 pm they saw the accused coming from
the side of Samshan Ghat and going towards Nand Nagri on Honda black colour
scooty. After being apprehended search was made of his scooty bearing no.
DL6S AZ 7654 on which one katta was lying on the front foot rest. On checking
the same, it was found to be containing ganja (dry green leaves). On weighing
the same it was found to be 6.250 Kgs. Two samples of 50 gms each were
drawn at the spot, thereafter the sample pullandas and remaining contraband
were seized and sealed by seal of SK. After this recovery the samples and the
remaining contraband were sent to the Police Station where SHO (PW-3) also
put his seal on the same and recorded a DD Entry bearing GD No. 5A dated
17.05.2019 made at 00:38:50. Thereafter, the case property was deposited in the
maalkhana. However, in the present case, the sampling proceedings were
conducted at the spot and not before the Ld. Magistrate U/s 52A of the NDPS
Act.
66. It is contended by Ld. Defense Counsel that the entire recovery
proceedings are vitiated due to non-compliance of Section 52A of the NDPS
Act. However, Hon’ble Apex Court in a recent judgment titled as Bharat Amble
Vs. State, Crl. Appeal No.250/25 of Hon’ble Apex Court has summarized the
law on compliance of Section 52A NDPS Act as under :-
“50. We summarize our final conclusion as under: –
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985(I) Although Section 52A is primarily for the disposal and destruction
of seized contraband in a safe manner yet it extends beyond the immediate
context of drug disposal, as it serves a broader purpose of also introducing
procedural safeguards in the treatment of narcotics substance after seizure
inasmuch as it provides for the preparation of inventories, taking of photographs
of the seized substances and drawing samples therefrom in the presence and with
the certification of a magistrate. Mere drawing of samples in presence of a
gazetted officer would not constitute sufficient compliance of the mandate under
Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the
seized substance must take place at the time of seizure as held in Mohanlal
(supra), yet we are of the opinion that the process of inventorying, photographing
and drawing samples of the seized substance shall as far as possible, take place in
the presence of the accused, though the same may not be done at the very spot of
seizure.
(III) Any inventory, photographs or samples of seized substance
prepared in substantial compliance of the procedure prescribed under Section 52A
of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be
mandatorily treated as primary evidence as per Section 52A sub-section (4) of the
NDPS Act, irrespective of whether the substance in original is actually
produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s) / Rules in
terms of Section 52A of the NDPS Act is only intended to guide the officers and
to see that a fair procedure is adopted by the officer in-charge of the investigation,
and as such what is required is substantial compliance of the procedure laid
therein.
(V) Mere non-compliance of the procedure under Section 52A or the
Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the prosecution’s case doubtful,
which may not have been there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies that may exist in the
evidence adduced by the prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or
documentary inspires confidence and satisfies the court as regards the recovery
as-well as conscious possession of the contraband from the accused persons, then
even in such cases, the courts can without hesitation proceed to hold the accused
guilty notwithstanding any procedural defect in terms of Section 52A of the
NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or
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U/s. 20(b)(ii)(B) of the NDPS Act, 1985rules thereunder may lead the court to drawing an adverse inference against the
prosecution, however no hard and fast rule can be laid down as to when such
inference may be drawn, and it would all depend on the peculiar facts and
circumstances of each case.
(VIII) Where there has been lapse on the part of the police in either
following the procedure laid down in Section 52A of the NDPS Act or the
prosecution in proving the same, it will not be appropriate for the court to resort to
the statutory presumption of commission of an offence from the possession of
illicit material under Section 54 of the NDPS Act, unless the court is otherwise
satisfied as regards the seizure or recovery of such material from the accused
persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the
foundational facts to show that there was non-compliance of Section 52A, either
by leading evidence of its own or by relying upon the evidence of the prosecution,
and the standard required would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of
Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to
prove by cogent evidence that either (i) there was substantial compliance with
the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such
non-compliance does not affect its case against the accused, and the standard of
proof required would be beyond a reasonable doubt.”
(emphasis supplied)
67. Though, in the present case there is no compliance of Section 52A
NDPS Act, as the sampling proceedings were done by the IO, however, in view
of the judgment in Narcotics Control Bureau Vs. Kashif, 2024 INSC 1045,
decided on 20.12.2024 and Bharat Aambale (supra), the said fact by itself does
not vitiate the trial. As held by the Hon’ble Court in absence of compliance U/s
52A NDPS Act the onus is upon the prosecution to prove by cogent evidence
that such non-compliance does not affect its case against the accused, and the
standard of proof required would be beyond a reasonable doubt.
DLSH010045362019 Page 35 of 37
SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
68. In the present case, SI Subhash took out two samples of 50-50
grams each from the recovered contraband and on smelling the same it was
found ganja. Both the samples were converted into pullanda by putting it into
white cloth and sealed with the seal of SK by giving Mark-1A and Mark-1B.
The remaining contraband was also sealed with the seal of SK. All these three
pullandas were also sealed by the SHO with the seal ASR. The two sample
pullandas were sent to FSL.
As per FSL report Ex. PW-5/A the sample sealed parcels (i.e.
Mark-1A and Mark-1B were duly sealed with the seals of ‘SK’ and ‘ASR’)
containing dried greenish brown coloured flowering & fruiting vegetative
material, weight approx. 55.1 gm (Mark-1A) and 53.4 gm (Mark-1B) with
polythene were received in the FSL and after examination in the FSL, the said
samples were found to be ‘Ganja’ (Cannabis). After examination, the remnants
of the exhibits were sealed with the seal of K.G. FSL DELHI. It is to be noted
that when both these samples were produced in the Court, they were found duly
sealed with the seal of ‘K.G. FSL DELHI’.
However, remaining contraband which was also sealed with the
seals of ‘SK’ and ‘ASR’ when produced before the Court was bearing only the
seal of ‘ASR’ and not the seal of ‘SK’ as there is nothing on record to suggest
that seal of ‘SK’ was there on the pullanda of the remaining contraband, as it is
simply written in the testimony of PW-1 that pullanda found sealed with the
seal of ‘ASR’, when produced in the Court.
DLSH010045362019 Page 36 of 37
SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
69. Upon reviewing the evidence, particularly the failure of the
Investigating Agency of subjecting the recovered contraband (ganja) to
sampling proceedings under section 52A NDPS Act and failure of prosecution
to produce the recovered substance in its intact form as it was recovered and
sealed at the spot, the prosecution has failed to prove the foundational facts
against the accused beyond reasonable doubt. The presumption under sections
35 and 54 of the NDPS Act cannot be raised in this case against the accused, as
the recovery of contraband could not be established beyond reasonable doubt, as
the seal of ‘SK’ which was put on the katta having contraband was not on it,
when it was produced in the Court.
Conclusion
70. Though, the prosecution proved several facts in order to prove the
charge against the accused, however, in view of the fact that compliance of
provisions of Section 42 NDPS Act have not been duly made in the present
matter; the loss of original notice U/s 50 NDPS Act raises doubts qua
conducting of proper proceedings and preservation of proper record in the
present case and non-compliance of Section 52A NDPS Act coupled with the
fact that recovered contraband was produced in the Court only with the seal of
SHO and not with the seal of IO, a doubt has arisen in the mind of the Court as
regards the recovery made from the accused. In the opinion of the Court, it
cannot be said beyond doubt that there is no material contradiction in the story
of the prosecution as regards compliance of provisions of Section 42 NDPS Act
DLSH010045362019 Page 37 of 37
SC 321/2019
STATE Vs. AZMI
FIR No. 269/2019
PS : Nand Nagri
U/s. 20(b)(ii)(B) of the NDPS Act, 1985
and it also cannot be said beyond reasonable doubt that the case property after
seizure was duly sealed and preserved till the time it was produced before in the
Court. Therefore, in the opinion of the Court, the benefit of doubt would go in
favour of the accused.
71. Accordingly, accused Azmi is acquitted of the offence punishable
under Section 20(b)(ii)(B) of the NDPS Act. Accused is directed to furnish bail
bond U/s 437-A Cr.P.C. in the sum of Rs. 20,000/-.
72. File be consigned to Record Room after due compliance.
Digitally
GAJENDER signed by
Announced in the open Court SINGH
NAGAR
GAJENDER
SINGH
NAGAR
on 31st July, 2025
(Gajender Singh Nagar)
Special Judge (NDPS Act)
District Shahdara
Karkardooma Courts, Delhi
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