Delhi District Court
State vs Bhagat Singh on 28 February, 2025
State Vs Bhagat Singh & Anr.
IN THE COURT OF Ms. MANU GOEL KHARB
SPECIAL JUDGE (NDPS)-02: DWARKA COURTS
NEW DELHI
SC No. 05/2023
FIR No.803/2020
U/s. 20 (b) (ii) (B)/25/29 NDPS Act
PS: Chhawla
State vs. Bhagat Singh & Anr.
Date of Institution of case :-04.01.2023
Date of arguments :- 28.02.2025
Date on which Judgment pronounced :- 28.02.2025
JUDGMENT
CNR No. DLSW01-000037-2023 Date of commission of the 07.09.2020 offence Name of the complainant HC Ombir
Name and address of accused 1. Bhagat Singh S/o Sh.
Balwant Singh
R/o House no. 40A, Roshan
Vihar, Najafgarh, Delhi.
2.Amarjeet @ Kale S/o Sh.
Chand
R/o House no. 55, Village New
Roshanpura, Najafgarh, New
Delhi.
Offence complained of U/s 20 (b) (ii) (B) read with
Section 25 NDPS Act and 29
NDPS Act
Plea of accused Pleaded not guilty and claimed
trial
Date of order 28.02.2025
Final order Acquitted
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State Vs Bhagat Singh & Anr.
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 07.09.2020, on
receipt of DD no. 110A, SI Subham Singh reached at main
Paprawat Road near Suri Farm and found HC Ombir and
Ct. Rakesh who had apprehended two persons along with a
Scooty bearing no. DL9SAP 9188 and two polythenes
(white and black colour) suspected to contain Ganja. SI
Subham recorded the statement of HC Ombir and on the
basis of his statement, FIR was registered against Bhagat
Singh and Amarjeet @ Kale (hereinafter called the accused
persons).
2. HC Ombir gave statement that on 07.09.2020, he
along with Ct. Rakesh was on patrolling duty at beat no. 6.
At about 7:00 PM. while they were checking the vehicles,
one secret informer met HC Ombir and informed that two
boys who used to sell Ganja will come on grey colour
Scooty along with Ganja from Jhatikara village and go to
Najafgarh via main Paprawat Road and if raid is
conducted, they can be apprehended along with ganja. HC
Ombir asked 4-5 passerbys to join the proceedings but all
refused to join. After sometime, two persons on one
Scooty of grey colour came and on pointing out by secret
informer, they were stopped. On inquiry, pillion rider
disclosed his name as Bhagat Singh and the person who
was driving the Scooty disclosed his name as Amarjeet @
Kale. The pillion rider was having one polythene which,
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State Vs Bhagat Singh & Anr.
on checking, prima facie appeared to be Ganja. The
person who was driving the Scooty tried to throw the
polythene which he was hiding inside his shirt, but he was
overpowered and the polythene was found to contain
Ganja. Thereafter, at about 8:25 PM, SI Subham sent Ct.
Rakesh to bring Drug checking kit, IO Kit and weighing
machine. SI Subham asked 4-5 persons to join the
proceeding but none agreed and left the place without
disclosing their names and addresses. SI Subham
introduced himself to accused persons and informed them
about their legal right that their personal search can be
conducted by a Gazetted Officer or Magistrate.
Thereafter, notice under section 50 NDPS Act was served
upon the accused persons but they refused to exercise their
rights. Thereafter, SI Subham informed SHO/ACP
regarding the recovery of Ganja. Thereafter, personal
search of the accused persons was conducted by HC Ombir
but nothing objectionable was found. In the meantime, at
about 9:20 PM, Ct. Rakesh came to the spot along with
Drug Testing Kit and Weighing Machine and on weighing,
the weight of ganja found in the polythene recovered from
accused Bhagat Singh was 01 Kg Ganja and from accused
Amarjeet @ Kale 500 grams Ganja was recovered.
Thereafter, both the polythenes were kept in separate
plastic containers and sealed with the seal of ‘SS’. Seal
after use was handed over to Ct. Rakesh. In the meantime,
SHO P.S. Chhawla reached the spot and SI Subham
handed over copy of seizure memo and case property to
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State Vs Bhagat Singh & Anr.
the SHO for compliance under section 55 NDPS Act.
SHO counter sealed the case property with the seal of
‘GR’. Thereafter, SI Subham prepared tehrir and handed
over the same to Ct. Rakesh for registration of FIR.
3. After registration of FIR, IO/ SI Subham prepared
site plan, recorded disclosure statement of the accused
persons, arrested them and took their personal search.
During investigation, sampling proceedings before the Ld.
Magistrate under section 52A of NDPS Act were got done
on 14.09.2020 and thereafter, samples were sent to FSL.
After obtaining the result, charge-sheet was filed before
the court.
4. Vide order dated 04.01.2023, court took cognizance
of the offences u/s 20(b)(ii)(B)/25 and 29 NDPS Act and
summoned both the accused persons. Thereafter, vide
order dated 13.09.2023, charge for the offences punishable
under Section 20(b)(ii)(B) NDPS Act read with section 25
NDPS Act and Section 29 of NDPS Act was framed
against the accused persons Bhagat Singh and Amarjeet @
Kale to which both of them pleaded not guilty and claimed
trial.
5. Prosecution examined 09 witnesses in support of its
case.
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6. PW1 SI Amit Punia is the last Investigating Officer
to whom investigation of the present case was handed
over. He prepared charge-sheet and filed the same in the
court. PW7 SI Dhananjay Kumar and PW8 SI Rajesh
remained the IO’s prior to PW1 but no investigation was
done by them in the present case.
7. PW2 is HC Rakesh Kumar. He deposed that on
07.09.2020, he along with PW3/HC Ombir were on
patrolling duty and they were checking the vehicles at
Paprawat Jhatikara Mor. At about 7:00 PM, one secret
informer came and informed PW3/HC Ombir that two
persons involved in selling Ganja will come on grey colour
Scooty from the side of Jhatikara Mor and will go to
Najafgarh through Paprawat Road. After few minutes, two
persons came on a Scooty and at the instance of informer,
both were apprehended. The person who was sitting as a
pillion rider was having one white colour polythene and
the person who was driving the Scooty tried to throw the
polythene and on checking the same, the substance prima
facie appeared to be Ganja. PW3/HC Ombir informed
Duty Officer and thereafter SI Shubham reached at the
spot and they handed over both the accused along with
recovered polythene containing material like Ganja.
PW6/SI Shubham requested some passer-by but all refused
to join. PW6 sent PW2 to Narcotic Squad, Dwarka to
bring kit and weighing machine etc. At around 9:20 PM,
he returned to the spot along with drug testing kit and
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State Vs Bhagat Singh & Anr.
weighing machine. Thereafter, PW6/SI Shubham checked
both the polythenes and the same was found to be Ganja.
The weight of the polythene recovered from pillion rider
was found to be 1Kg and the weight of the polythene
recovered from driver was found to be 500 grams.
Thereafter, both the polythenes were kept in a container
and sealed with the seal of ‘SS’. PW6/SI Shubham
informed the SHO, who came at the spot. Case property
was seized vide seizure memos Ex.PW2/A1 and
Ex.PW2/A2 and SHO put his seal of ‘GR’ on the case
property. The seal after use was handed over to PW2.
PW6/SI Shubham recorded statement of PW3/HC Ombir,
prepared tehrir and handed over the same to PW2 for
registration of case. PW6/SI Subham arrested the accused
vide memos Ex.PW2/B1 and Ex.PW2/B2 and their
personal search was conducted vide memos Ex.PW2/C1
and Ex.PW2/C2. PW6/SI Shubham recorded disclosure
statement of accused Ex.PW2/D1 and Ex.PW2/D2, seized
Scooty vide memo Ex.PW2/E, prepared site plan
Ex.PW2/F. PW2 identified the case property i.e ganja as
Ex.P-1 and Ex.P-2 and identified the Scooty through
photographs Ex. P-3.
8. PW3 HC Ombir deposed the same facts as deposed
by PW2 HC Rakesh Kumar.
9. PW4 Dr. Adesh Kumar is Senior Scientific Officer
(Chemistry), FSL Rohini, Delhi. PW4 deposed that on
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State Vs Bhagat Singh & Anr.
28.09.2020, two sealed plastic containers alongwith
forwarding letter were received in FSL and seals were
intact. He examined the contraband and prepared detailed
report Ex.PW4/A and remnant samples were sealed with
the seal of ‘AY FSL DELHI’. In his cross-examination, he
deposed that the parcels received at FSL contained
flowering and fruiting tops of ganja.
10. PW5 is HC Pardeep, who on 28.09.2020 deposited
the duly sealed plastic containers containing the samples to
FSL Rohini vide RC no. 207/21/20 Ex.PW5/A and handed
over the receipt/acknowledgment Ex. PW5/B to MHC(M).
11. PW6 SI Shubham is the Investigating Officer in this
case. PW6 deposed that on 07.09.2020, on receipt of DD
no. 110A, he reached Paprawat Road, near Suri Farm
where he met PW3 HC Ombir and PW2 HC Rakesh along
with two persons and they handed over both accused,
recovered polythene containing Ganja. He requested some
passerby to join raiding party but none agreed. He sent
PW2 HC Rakesh at about 8:25 PM to Narcotic Squad
Dwarka to bring testing kit and weiging machine etc. and
at about 9:20 PM, he came to spot along with testing kit
and weighing machine etc. He gave notice under section
50 NDPS Act Ex.PW6/A1 and Ex. PW6/A2 to both the
accused persons and informed them about their legal right,
if they wish their search can be conducted by a nearest
Gazetted Officer/Magistrate but both accused refused to
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State Vs Bhagat Singh & Anr.
exercise their rights. Thereafter, PW6 took body search of
the accused but nothing objectionable was found. PW6
checked the material of polythene with the help of testing
kit and same was found to be ganja. From accused
Amarjeet 500 grams of Ganja was recovered and from
accused Bhagat Sigh 01 KG Ganja was recovered. Ganja
was taken into possession vide seizure memo Ex.PW2/A1
and Ex.PW2/A2. SHO also put his seal on case property.
Seal after use was handed over to Ct. Rakesh. Thereafter,
PW6 recorded statement Ex.PW3/A of PW3/HC Ombir,
made endorsement and prepared rukka Ex.PW6/C and
handed over the same to PW2/HC Rakesh for registration
of the FIR. PW2 went to P.S. and got the FIR registered
and came along with copy of FIR and original tehrir. PW6
arrested accused vide arrest memo Ex.PW2/B1 and
Ex.PW2/B2 and conducted their personal search vide
memo Ex.PW2/C1 and Ex.PW2/C2. From personal search
of accused Bhagat Singh Rs.580/- along with notice under
section 50 NDPS Act was recovered and from personal
search of the accused Amarjeet Rs.70/- and notice under
section 50 NDPS Act was recovered. PW6 recorded
disclosure statement of both the accused persons vide
memo Ex.PW2/D1 and Ex.PW2/D2, seized Scooty vide
memo Ex.PW2/E, prepared site plan vide memo
Ex.PW2/F. Thereafter, PW6 prepared report Ex.PW6/D
under section 57 NDPS Act. PW6 moved an application
under section 52A NDPS Act for drawl of sample and got
the sampling proceedings conducted and filed the
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State Vs Bhagat Singh & Anr.
photographs of the sampling proceeding. PW6 identified
the case property Ex. P1 and Ex. P2.
12. PW9 Inspector Gyanender is the then SHO. He
deposed that on 07.09.2020, he was on patrolling duty and
during patrolling IO/SI Shubham and Duty Offier
informed him that two persons on Scooty has been
apprehended with Ganja. PW9 reached the spot where SI
Shubham and Ct. Rakesh and HC Ombir were present
along with two accused and Scooty bearing no. DL 9S AP
9188. IO produced two pullanda sealed with the seal of
‘SS’ along with carbon copy of seizure memo. PW9 put
his counter seal of ‘GR’ on the pullandas and left the spot
along with case property and deposited the same in the
malkhana. Thereafter, as per his directions, DD entry was
registered by the Duty Officer in compliance of Section 55
NDPS Act.
13. During the trial, statement of accused persons
regarding admission/denial of documents under Section
294 Cr.P.C. was recorded on 22.01.2024 and accused
persons admitted the genuineness of certain documents i.e
FIR Ex. A-1; Certificate under section 65 B Indian
Evidence Act Ex. A-2; DD no. 132 dated 07.09.2020 Ex.
A-3; DD no. 110 dated 07.09.2020 Ex. A-4; proceedings
under section 52A conducted by the Ld. Metropolitan
Magistrate dated 14.09.2020 of accused Amarjeet @ Kale
Ex.A-5; proceedings under section 52A conducted by the
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State Vs Bhagat Singh & Anr.
Ld. Metropolitan Magistrate dated 14.09.2020 Ex.A-6;
photographs of proceedings conducted of accused Bhagat
Singh Ex.A-7; photographs of proceedings conducted of
accused Amarjeet 2 Kale Ex.A-8. Thereafter, prosecution
evidence was closed vide order dated 05.10.2024 and
16.01.2025. Statement of accused Bhagat Singh and
Amarjeet @ Kale under Section 313 Cr.P.C. (now 351
BNSS) has been recorded whereby all the incriminating
evidence was put to them to which they stated that they are
innocent and has been falsely implicated in the present
case. During the recording of the statement, accused did
not wish to lead defence evidence and matter was fixed for
final arguments.
14. I have considered the rival submissions and gone
through the voluminous documents and evidence available
on record.
15. Both accused persons were charged for the offence
punishable under section 29 NDPS Act and under section
20 (b) (ii) (B) read with Section 25 NDPS Act.
16. Section 20(b)(i) of the NDPS Act provides that
whosoever, in contravention of any provision of this Act or
any rule or order made, or condition of licence granted
thereunder produces, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports inter-
State or uses cannabis, shall be punished, when the
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 10 of 26
State Vs Bhagat Singh & Anr.
contravention relates to ganja or cultivation of cannabis
plant with RI for a term which may extend to five years.
Section 20 (b) (ii) provides that such contravention, when
it relates to cannabis other than ganja with RI for a term
which shall not be less than 10 years.
17. Stringent provisions are provided under law qua
punishment in cases under the NDPS Act. The scheme of
the NDPS Act and its objects and reasons mandate that the
prosecution must prove compliance with various
safeguards ensured under the Act. The NDPS Act
prescribes stringent punishment and therefore, a balance
must be struck between the need for the law and the
enforcement of such law on one hand and the protection of
the citizen from oppression and injustice on the other. The
provisions are intended for providing certain checks on the
exercise of power by the authority concerned to rule out
any possibility of false implication or tampering with the
record or the contraband.
18. Section 54 of NDPS Act places burden of proof on
the accused as regards the possession of the contraband
to account for the same satisfactorily but the statutory
presumptions under Section 54 of the NDPS Act must
not be mechanically invoked. Courts must scrutinize the
totality of evidence–officers’ testimonies, presence of
independent witnesses, chain of custody, forensic results,
and the presence or absence of contradictory evidence.
Thus, a “cumulative view” decides whether the
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State Vs Bhagat Singh & Anr.
contraband truly was recovered from the accused and was
indeed illicit. Only if procedural defects jeopardize or
cast a serious doubt on the authenticity of the contraband
or the fairness of the investigation does the likelihood of
an acquittal arise and conviction can stand only if,
despite procedural lapses, the overall evidence remains
credible.
19. The first argument raised by Ld. Counsel for the
accused is that PW-6 IO/SI Subham who had seized the
recovered substance has deposed in his cross-examination
that the physical appearance of alleged ganja was in the
form of dry leaves and as per Section 2 (iii) (b) of the
NDPS Act, it is not covered under the definition of ganja
as ganja includes only the flowering and fruiting tops
excluding the seeds and leaves. Learned counsel has
argued that substance recovered in the present case does
not fall under the category of Ganja as defined under
NDPS Act.
20. As per tehrir Ex. PW/C, both the polythenes which
were recovered from the accused persons was found
containing ‘Ganje jaisa padarth’. Similarly, in both the
seizure memos Ex.PW2/A1 and Ex. PW2/A2 it is
mentioned that the polythenes contained ‘Ganje jaisa
padarth.’ Nowhere in the tehrir or seizure memo, the
physical appearance of the substance recovered from the
accused has been given. After the samples were drawn, the
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State Vs Bhagat Singh & Anr.
samples were sent to FSL for Chemical examination and as
per the chemical examiner report, the description of the
alleged contraband on the basis of physical appearance has
been shown to be “dried greenish brown flowering and
fruiting vegetative material” and on examination, the
exhibits were found to be ganja. The physical
characteristics of the recovered substance are neither
mentioned in the tehrir nor the seizure memos and for the
first time, it has come only in the evidence of PW-6/IO SI
Subham that the recovered substance was in the form of
dry leaves.
21. Cannabis is defined in Section 2 (iii) of the NDPS
Act, which reads as under: –
“(iii) cannabis (hemp) means-
(a) charas, that is, 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 natural material, of any of the
above forms of cannabis or any drink prepared therefrom.”
22. A perusal of the above definition of “Cannabis
(hemp) would reveal that cannabis (hemp) means charas,
ganja or any mixture of charas and ganja. So far as ganja is
concerned, it is the flowering or fruiting tops of the
cannabis plant, excluding the seeds and leaves when not
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State Vs Bhagat Singh & Anr.
accompanied by the tops, by whatever name they may be
known or designated. What is relevant to note is that the
Legislature has consciously excluded the seeds and leaves
of cannabis plant when not accompanied by the tops.
23. The ‘Cannabis plant’ is defined under Section 2
(iv) of the NDPS Act, which means any plant of genus
cannabis. It is also relevant to mention here that Bhang
(cannabis) plants are of two kinds known as male and
female. A female cannabis plant is called Pistillate plants
whereas male plants are identified by short Axillary
Dropping Panicles. Female flowering tops coated with
resin are Ganja whereas fruiting leaves are called Bhang.
24. According to Modi’s Medical Jurisprudence and
Toxicology 21st Edition, 1988, Section II toxicology
Chapter XXXIV page 248, ‘Bhang’, ‘Siddhi’ ‘Patti’ are
cannabis Sativa consists of dried leaves and fruiting shoots
whereas Ganja has rusty green colour and a characteristic
colour and consists of flowering or fruiting tops of the
female plant quoted with resin. According to Modi’s
toxicology, Charas is concentrated resin excluding from
the leaves and stems of the plant.
25. Undoubtedly, cultivation of ‘Bhang’ is punishable
under the NDPS Act but it is not included within the
definition of cannabis (hemp), however, the personal use
and sale of Bhang is not an offence. Reliance placed on
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State Vs Bhagat Singh & Anr.
Jangir Singh Vs. State of Punjab, CRM-M No.266 of 2018
decided on 13.07.2018.
26. In the present case, as per the testimony of the
seizing IO/ PW-6, it is not deposed that the leaves which
were seized by the police from the accused were
accompanied by the tops. The question for consideration
by this Court is as to whether the leaves of cannabis plant
fall within the definition of cannabis (hemp). If the leaves
of cannabis plant do not fall within the definition of
cannabis (hemp), then the possession thereof and sale are
not regulated by the NDPS Act and it cannot be said that
the accused is involved in commission of offence
under NDPS Act. So, the recovery effected from the
accused persons does not attract provisions of NDPS Act.
27. Not only the recovery effected from the accused
persons does not attract the provisions of NDPS Act rather
it has also remained unexplained as to how the dry leaves
recovered from the accused persons transformed
themselves into fruiting flowering material when it
travelled from the hands of IO to its destination at FSL.
28. Section 55 of the NDPS Act provides that all articles
seized under NDPS shall be under the safe custody of the
officer-in-charge of a police station in duly sealed
condition till orders of the Magistrate are obtained. If any
samples are taken, the same shall also be sealed. Further,
section 57 prescribes mandatory intimation to
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State Vs Bhagat Singh & Anr.
departmental superiors within 48 hours of the seizure.
Thus, in cases under NDPS Act, the chain of custody is
vital for the admissibility of evidence.
29. In the present case, prosecution has neither
examined the Malkhana Incharge of the police station nor
produced the case property registers no. 19 and 21 which
shows that any case property was ever deposited in the
malkhana of the police station and that the chain of
custody was unbroken.
30. Case property registers document the collection,
storage, movement, and disposition of evidence and
include details as to who handled the evidence at different
stages of the case and why, which helps prevent tampering,
loss, or contamination. Maintenance of the chain of
custody in criminal proceedings is required to establish
that the physical evidence being produced before the Court
is the same as the one that was taken possession of by the
investigating officers during investigation. Properly
maintained case property registers are important
because they ensure that evidence is handled properly and
can be used in court. If the chain of custody appears to be
broken or any evidence appears to be tampered, then the
outcome of the trial is vitiated. Apart from bolstering the
prosecution’s case, maintenance of the chain of custody
also plays a pivotal role in protecting the rights of the
accused. The criminal justice system, which presumes the
accused to be innocent till proven guilty, is designed to
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State Vs Bhagat Singh & Anr.
ensure a fair and impartial trial, and a transparent chain of
custody contributes to this objective. Accurate
documentation and handling of evidence prevents the
possibility of planting, tampering or contamination of the
evidence.
31. Adverting to the facts of the case, prosecution has
failed to produce, let alone prove on record, the case
property register in the present case. The case property
register is necessary to be produced during the trial so that
the prosecution could establish that during the entire
period of transit from the point of seizure to the production
before the court, duly identified and authorised persons
only had custody of the seized object and all steps of
transfer of evidence from one person to another were for
taken for justified purposes. The production of the case
property register would have shown the continuity of
possession of the drugs/ganja seized during investigation
including its movement from the point of recovery to its
transport to the forensic science laboratory (F.S.L.) for
examination and eventual production in the court for
admission and evaluation as evidence.
In the present case, by not producing register no. 19
and 21 and by not examining the MHC(M) who had
deposited the case property in the godown at the relevant
time, prosecution has failed to prove that the chain of
custody of the seized contraband was properly maintained
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State Vs Bhagat Singh & Anr.
or that the case property remained untampered throughout
the investigation and trial.
32. Ld. Counsel for the accused further argued that there
was delay in drawing samples of the case property and
even after the drawal of samples, the case property was not
sent immediately to FSL rather after a delay of one and a
half month.
33. Hon’ble Supreme Court in the case of Bharat
Aambale Vs. The State of Chhatisgarh clarified that while
the NDPS Act‘s procedural safeguards are crucial,
especially Section 52A advocating Magistrate supervision
and safe disposal of seized narcotic, an accused does not
secure an automatic acquittal solely on showing a technical
or delayed compliance with these requirements. The
pivotal question is whether the contraband was indeed
seized from the accused and whether the chain of custody
truly stands. If the prosecution otherwise demonstrates
beyond a reasonable doubt that the accused was found in
possession of a prohibited substance, minor lapses in
procedure or timing on the part of the investigators (in
sending, testing, or disposing of seized items) will not, by
themselves, defeat the prosecution. Conversely, where
grave procedural infractions compromise authenticity, the
courts must draw adverse inferences. Ultimately, the
Court’s stance preserves both the legislative objective of
curbing the menace of narcotics trafficking and the due
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State Vs Bhagat Singh & Anr.
process rights of accused individuals, ensuring that
genuine procedural lapses that truly prejudice the defence
can, and must be recognized and addressed.
34. In the case in hand, the alleged ganja was seized on
07.09.2020 and IO moved the application for sampling
before Ld. MM on 08.09.2020. Thereafter, proceedings
under Section 52-A NDPS Act was conducted on
14.09.2020 and the samples were drawn but the samples
were deposited at FSL on 28.09.2020. As already
discussed above, prosecution has failed to examine the
MHC(M) and produce the relevant register to show that
the chain of custody was maintained properly and the
hence, accused persons have been able to show that they
have been prejudiced due to the unexplained delayed
compliance of Section 52-A NDPS Act.
35. Ld. Counsel for the accused also argued that the
accused persons were apprehended at main Paprawat road
but no independent public person was joined in the
proceedings.
In the present case, both the accused persons were
apprehended near Suri Farm at main Paprawat Road, and
recovery of Ganja in intermediate quantity was affected
from them. The record reveals that no independent public
person was joined in the proceedings. It is to be kept in
mind that the non-joining of public witnesses itself cannot
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State Vs Bhagat Singh & Anr.
afford a ground for acquittal, if the case of the prosecution
is otherwise reliable.
36. In State of Haryana Vs. Mai Ram, (2008) 8 SCC
292, it was observed that the ultimate question to be asked
is whether the evidence of the official witnesses suffers
from any infirmity. The case of the prosecution cannot be
held to be vulnerable to non-examination of persons who
were not official witnesses. In such cases, if the statements
of official witnesses corroborate the proceedings
conducted, the case of the prosecution cannot be
disbelieved. The proposition is not disputed but the
balance has to be maintained if some doubt is created
regarding the involvement of the accused. Each case has
its own facts and circumstances. Accordingly, it is trite that
mere failure to associate public witnesses in search and
seizure proceedings is not fatal to the case of the
prosecution. However, in such a case, the burden lies
heavily on the prosecution to prove two things – Firstly,
that a genuine and sincere effort was made by the
investigating officer to join independent persons in the
proceedings and secondly, that the evidence of the official
witnesses does not suffer from any infirmity.
37. In the present case, as per the story of the
prosecution, on 07.09.2020, PW2/HC Rakesh and
PW-3/HC Ombir were on patrolling duty in the area and
they apprehended the accused with illegal contraband. The
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 20 of 26
State Vs Bhagat Singh & Anr.
testimonies of the members of the raiding team suffer from
contradictions and it is evident therefrom that the
witnesses have remained evasive on material aspects. As
far as the testimonies of witnesses about the joining of
independent witnesses are concerned, PW2/HC Rakesh
deposed in his cross-examination that the spot of
apprehension is not a residential area but farm houses are
there and he also deposed that HC Ombir requested few
passersby to join the raiding party. Same has also come in
the deposition of PW-3/HC Ombir that he requested few
passersby to join the investigation but he admitted in his
cross-examination that he did not give any notice to the
persons who refused to join the investigation. Hence, from
the examination of the above witnesses, it is evident that
no sincere efforts were made by the police to join any
public person in the investigation.
38. Admittedly, the police officials remained on the spot
for a considerable time and the IO had ample time to join
independent persons in the proceedings but public persons
were not at all requested to join the proceedings. It is a
quite surprising fact that despite the availability of public
witnesses, the investigating agency could not associate
even a single public witness at any stage of the
investigation. This leads to the inevitable inference that the
investigating agency was not interested to make any public
witness a part of the raiding team and thus there has been a
deliberate disregard of the statutory safeguards relating to
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 21 of 26
State Vs Bhagat Singh & Anr.
search and seizure on the part of IO which renders the
recovery proceedings unworthy of credence. Hence, all
these facts raise some doubt on the truthfulness of the story
of the prosecution.
39. The present case revolves around the alleged
recovery of Ganja in intermediate quantity from the
possession of the accused persons Bhagat Singh and
Amarjeet @ Kale by PW2 and PW3 who were on
patrolling duty.
40. As per Chapter 22 Rule 49 of Punjab Police Rules
1934, the police officials are under statutory duty to mark
their arrival and departure entries in the register
maintained in the Police Station for this purpose. PW2 and
PW3 both deposed that as per duty roster, they were on
patrolling duty and PW-2 deposed in his cross-examination
that he does not remember the DD number vide which they
left the police station on that day. Similarly, the arrival
entry of PW 6/ IOSI Shubham at the spot has also not been
filed on record by the prosecution. Hence, prosecution has
failed to prove the DD entry vide which the recovery
witnesses PW2, PW3 and PW6 had left the police station
for performing their respective duties on the relevant day.
41. In cases where public persons could not be joined in
the investigation, the departure entries of the concerned
police officials become vital pieces of evidence. However,
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 22 of 26
State Vs Bhagat Singh & Anr.
no such daily diary entry has been proved on record. Proof
of the said entry/entries is indispensable as the present case
rests solely on the alleged recovery made by police
officials but evidently, the arrival and departure entries of
the recovery witnesses have not been duly proved by the
prosecution.
42. It is also argued by the ld. Counsel for the accused
that the prosecution has not been able to prove that the
information of arrest and seizure was given to the senior
police officials and prosecution has failed to prove the
compliance of Section 57 of NDPS Act.
It can be seen from the record that PW-/IO SI
Shubham deposed that he prepared the report of arrest Ex.
PW/D under Section 57 NDPS Act and sent to superior
officers. A bare perusal of arrest report u/s 57 NDPS Act
shows that it is neither addressed to any officer nor bears
the endorsement of having been received by any superior
officer. There is no dispatch number or diary number
mentioned on the report Ex. PW6/D which implies that the
intimation of arrest was never given to any superior
officer. Assuming that the arrest and seizure report was
duly sent to the superior officer, the prosecution should
have examined the concerned superior officer as only he
could have deposed whether any report was received and
also the date and time when the said intimation/report was
received by him. Hence, prosecution has failed to prove
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 23 of 26
State Vs Bhagat Singh & Anr.
that there was a proper compliance of Section under
Section 57 of NDPS Act.
43. It is settled law that provision of Section 57 NDPS
act is directory in nature and a violation of section 57 of
NDPS Act will not vitiate the trial, if there is otherwise
sufficient material on record to convict the accused but in
the present case, the absence of independent witnesses,
contradictory statements of recovery witnesses regarding
each and every material aspect related to the recovery of
the contraband coupled with the non-compliance of
statutory provisions of NDPS Act have certainly made the
prosecution story doubtful and have adversely impacted
the fate of present case.
44. Prosecution has also failed to prove that there was
no possibility of tampering of the case property. As per
the police report, after use, the seal of ‘SS’ was handed
over to Ct. Rakesh (now HC) but no handing over memo
in respect of the seal has been filed on record. Thus, the
fact of handing over of the seal of ‘SS’ to Ct. Rakesh (now
HC) in the police report has not been proved by the
prosecution.
45. Further, admittedly, the seal in the present case was
not handed over to any independent witness nor was it was
deposited in the malkhana to assail the possibility of its
misuse. The seal after use was handed over to Ct. Rakesh
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 24 of 26
State Vs Bhagat Singh & Anr.
who is also posted in the same Police Station and the
justification given is that the recovery was effected in the
night, so the seal could not have been handed over to
anyone else except the Police Officials present in the
Police Station but it is relevant to mention that in such a
situation it was necessary to prepare a Seal Handing Over
Memo to show that the seal was not retained by the IO
himself. The sole purpose of handing over the seal and
seal handing over memo is to rule out any chance of
tampering of the case property by the IO by again
unsealing the case property and hence the seal has to be
handed over to another person, which is not done in the
present case. Accordingly, the possibility that the case
property may have been tampered with cannot be ruled
out.
46. In a criminal trial, the burden of proving everything
essential to the establishment of the charge against an
accused always rests on the prosecution and there is a
presumption of innocence in favour of the accused until
the contrary is proved. Criminality is not to be presumed,
subject, of course to some statutory exceptions.
Prosecution should be able to prove the complete chain of
events which led to the commission of the offence and
prosecution case should stand on its own legs. Further, it is
the cardinal principle of criminal jurisprudence that
culpability of accused has to be proved beyond doubt and
SC No. 05/2023 CNR no. DLSW01-000037-2023 Page 25 of 26
State Vs Bhagat Singh & Anr.
in case, there is any doubt, then benefit of doubt should be
given to the accused.
47. In the light of the above said discussion and
appreciation of evidence, court is of the opinion that
prosecution has miserably failed to prove its case against
the accused beyond reasonable doubts, hence, the accused
Bhagat Singh S/o Sh. Balwant Singh and Amarjeet @ Kale
S/o Sh. Shrichand are acquitted from the charges framed
against them.
48. File be consigned to record room after due
compliance. Digitally signed
MANU by MANU
GOEL KHARB
GOEL Date:
2025.02.28
KHARB 18:23:29
+0530Announced in the open court today (Manu Goel Kharb)
today i.e. 28.02.2025 Special Judge (NDPS)-02
South West District
Dwarka Courts: DelhiSC No. 05/2023 CNR no. DLSW01-000037-2023 Page 26 of 26
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