Delhi District Court
State vs Emmanuel Onyejegbu on 25 July, 2025
SC no. 1088/2018 State Vs Emmanuel Onyejegbu
IN THE COURT OF Ms. MANU GOEL KHARB
SPECIAL JUDGE (NDPS)-02: DWARKA COURTS
NEW DELHI
SC No. 1088/2018
State Vs Emmanuel Onyejegbu & Others
FIR No. 300/2018
U/s. 21(b)/29 NDPS Act & 14 Foreigner Act
U/s 174A IPC
PS: Najafgarh
Date of Institution of case :-13.12.2018
Date of arguments :- 25.07.2025
Date on which Judgment pronounced :- 25.07.2025
JUDGMENT
CNR No. DLSW01-026398-2018
Date of commission of the 14.10.2018
offence
Name of the complainant ASI Rambir
Name and address of accused (1) Emmanuel Onyejegbu
S/o Mr. Onyejegbu
R/o WZ-13, Om Vihar, Phase-
IV, Nawada, Uttam Nagar,
New Delhi
(2) Vivek Bagdi @ Sagar
S/o Sh. Naresh
R/o Village Bhambhawa,
District Jhajjar, Haryan
(3) Mohit Kumar
S/o Sh. Dharmendra
R/o House no. 99, Sector-56,
Chandigarh
Offence complained of Under section 21(b)/29 NDPS
Act & 14 Foreigner Act
U/s 174A IPC
Plea of accused Accused pleaded not guilty
Date of order 25.07.2025
Final order Accused Emmanuel
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SC no. 1088/2018 State Vs Emmanuel Onyejegbu
Onyejegbu,Vivek Bagdi and
Mohit acquitted under section
21 (b) r/w 29 NDPS Act
Accused Emmanuel convicted
under section 14 Foreigner Act
and under section 174A IPC
BRIEF REASONS FOR DECISION:
1. The case of prosecution is that on 14.10.2018, ASI
Rambir Singh was on duty and a secret informer came in
the Police Station and informed that one Nigerian will
come at Kuda Ghar, near Health Centre, Najafgarh to
supply Smack/Heroin to two boys, if raided, they can be
apprehended and Heroin can be recovered. Thereafter,
ASI Rambir Singh produced the secret informer before the
SHO and informed about the secret information. SHO
shared the information to the Senior Officer and directed to
proceed as per law. Thereafter ASI Rambir Singh lodged
DD no. 40B at 8:30 PM and prepared raiding party
consisting of himself, secret informer, HC Surender, Ct.
Surender, Ct. Ashok and Ct. Shakti and left the Police
Station vide DD no. 41B at about 8:40 PM along with IO
bag, Drug Testing Kit and reached at the spot at about 9:20
PM. IO/ASI Rambir Singh asked 4/5 persons to join the
raiding party but all refused to join. At about 10:00 PM,
one Nigerian came at Health Centre, Bus Stand and in the
meantime two boys came on Bike bearing no. HR 10M
6148 Hero Honda and they exchanged something and on
the pointing out of secret informer, members of raiding
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team apprehended all of them. On inquiry, name of two
boys was revealed as Vivek Bagri @ Sagar and Mohit
Kumar S/o Sh. Dharmender and Nigerian disclosed his
name as Emmanuel Onyejegbou. IO/ASI Rambir
introduced the raiding party to them and apprised them
regarding their legal rights that their personal search can be
conducted before any Gazetted Officer or Magistrate and if
they wish they can take search of the raiding party to
which all three accused persons replied that they did not
want to be searched before any Gazetted Officer or
Magistrate. Thereafter IO served notice under section 50
NDPS Act to all the accused persons. Thereafter, search
of accused Vivek Bagdi and Mohit Kumar was done.
From search of the accused Vivek Bagdi, one white colour
pudia wrapped in plastic tape was recovered from his right
hand and on checking the same with the help of Field-
testing Kit the substance tested positive for Heroin and on
weighing, the same was found to be 22 grams. From
search of the accused Mohit Kumar, one white colour
pudia wrapped in plastic tape was recovered from his right
hand and on checking the same with the help of Field
Testing Kit, the same tested positive for Heroin and on
weighing, the same was found to be 28 grams. Thereafter
ASI Rambir took samples of 2-2 grams each and samples
were given Mark S1 to S4. Thereafter all the recovered
substance along with samples were converted into
pullanda, kept in a transparent box and sealed with the seal
of ‘RS’. FSL form was filled at the spot. Thereafter, IO
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conducted search of the accused Emmanuel Onyejegbou
and from his right hand, one plastic panni was recovered
which was found having currency notes in the
denomination of 500 x 90 = Rs.45,000/- and he disclosed
that the amount was given to him by accused Vivek and
Mohit in exchange for Heroin. The recovered amount was
kept in white cloth and converted into pullanda and Mark
S7 was given to the said pullanda and pullanda was sealed
with the seal of ‘RS’. Seal after use was handed over to
Ct. Shakti. In the meantime, ACP, Najafgarh Sh. S P
Tyagi reached at the spot and made inquiries from all three
accused persons. IO seized case property, prepared tehrir
and handed over the tehrir to Ct. Shakti for registration of
the FIR along with copy of seizure memo of case property
and sealed case property for proceedings under section 55
NDPS Act.
2. On the basis of aforesaid facts and recovery, FIR
was registered against the accused for the offences under
Section 21/61/85 NDPS Act.
3. After registration of FIR, further investigation of the
case was marked to SI Naveen. Thereafter, SI Naveen
reached at the spot along with Ct. Shakti where, ASI
Rambir along with other police officials and three accused
met him. SI Naveen interrogated all the accused persons
and thereafter, arrested all accused persons, conducted
their personal search, seized splendor bike bearing no. HR
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10M 6148 which was recovered from the possession of
accused Vivek Bagadi and Mohit. SI Naveen also seized
transparent damaged tape, seized original notices under
section 50 NDPS Act, recorded disclosure statement of
accused persons, prepared site plan at the instance of ASI
Rambir. SI Naveen sent the report under section 57 NDPS
Act to ACP and accused was sent to JC. On 03.12.2018,
the exhibits were sent to FSL. SI Naveen made inquiries
regarding passport and visa of Emmanuel Onyejegbu but
he did not produce his passport and his visa. Thereafter
SHO P.S. Najafgarh sent a letter to Nigerian Embassy
wherein intimation regarding arrest of accused and staying
illegally in India was given and thereafter, samples were
sent to FSL. After obtaining the result, charge-sheet was
filed before the court.
4. Upon filing of chargesheet, cognizance was taken
and the accused Emmanuel Onyejegbu, Vivek Bagdi and
Mohit Kumar were summoned. Thereafter, vide order
dated 13.12.2019, charge for the offences punishable under
Section 21(b) read with section 29 NDPS Act was framed
against all accused persons and charge for the offence
punishable under section 14 of Foreigner Act was framed
against the accused Emmanuel Onyejegbu, to which all the
accused persons pleaded not guilty and claimed trial.
5. The prosecution examined 10 witnesses in support
of its case.
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6. PW1 HC Dharambir is the Duty Officer. PW1
proved FIR Ex. PW1/A, endorsement on rukka Ex. PW1/B
and certificate under section 65 B Indian Evidence Act Ex.
PW1/C.
7. PW2 HC Sudhir took the four sealed exhibits to FSL
on 29.03.2023 vide RC no.255/21/18 Ex.PW2/A and after
depositing the same, PW8 obtained acknowledgment Mark
X.
8. PW3 is HC Umesh Kumar. He deposed that on
16.10.2018, he received two reports under section 57
NDPS Act, one sent by ASI Rambir and another by SI
Naveen duly forwarded by the SHO Najafgarh to the office
of ACP. PW2 put up said reports before ACP Sh. S P
Tyagi, who made endorsement on both the reports and he
made entry in diary register vide sl. no. 3885 and 3886
vide Ex. PW3/A.
9. PW4 is Inspector Sunil Kumar SHO P.S. Najafgarh.
On 14.10.2018, at about 8:30 PM, PW7/ASI Rambir
produced secret informer before him and after satisfaction
of secret information, PW4 ordered for raid.
On 15.10.2018, at about 1:10 AM, PW9/Ct. Shakti
Singh produced 07 pullandas Marked S1 to S7 duly sealed
with the seal of ‘RS’ and copy of seizure memo. PW4
counter sealed all the pullandas with seal of ‘SKR’, called
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the MHC(M) with register no. 19 and handed over the case
property and seizure memo to him and made the relevant
entry at sl. no. 3888 Ex. PW4/A. PW4 got lodged
information into daily diary vide DD no. 4A dated
15.10.2018 vide Ex. PW4/B.
10. PW5 SI Naveen Kumar is 2nd Investigating Officer.
PW5 deposed that on 15.10.2018, investigation of the
present case was handed over to him as per the directions
of the SHO. On that day, PW9/Ct. Shakti Singh had come
to Police Station for registration of the FIR and PW1
handed over copy of FIR and original tehrir to PW5.
Thereafter, PW5 along with PW9 HC Shakti Singh
reached at the spot i.e. Near Health Centre, Najafgarh and
met PW7/ASI Rambir along with other staff, PW5
produced all the three accused persons namely Vivek
Bagadi @ Sagar, Mohit and Emmanuel Onyejegbu. PW5
interrogated all three accused persons and arrested accused
Vivek Bagadi vide Ex. PW5/A, accused Mohit vide
Ex.PW5/B, accused Emmanuel Onyejegbu vide
Ex.PW5/C. Personal search of accused Vivek Bagadi was
conducted vide Ex. PW5/A1, of accused Mohit vide
Ex.PW5/B1, of accused Emmanuel Onyejegbu vide
Ex.PW5/C1. PW5 seized bike bearing no. HR 10M 6148
recovered from possession of accused Vivek Bagdi and
Mohit vide seizure memo Ex. PW5/D, seized transparent
damaged tape vide Ex. PW5/E, seized notice recovered
from accused Mohit, Vivek Bagadi and Emmanuel
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Onyejegbu vide Ex. PW5/F1, Ex. PW5/F2 and Ex.
PW5/F3 respectively. He recorded disclosure statement of
accused Mohit, Vivek Bagadi and Emmanuel Onyejegbu
vide Ex. PW5/G1, Ex. PW5/G2 and Ex. PW5/G3
respectively, prepared site plan Ex. PW5/H, sent report
under section 57 NDPS Act regarding arrest of all accused
persons to ACP vide Mark X. PW5 took one day PC
remand of accused Emmanuel Onyejegbu and carried out
detailed investigation.
PW5 prepared age memo of accused Vivek vide
Ex.PW5/I. PW5 made inquiries from accused Emmanuel
Onyejegbu regarding passport and visa but he did not
produce any documents regarding passport and visa, which
shows that accused stayed in India without any valid
documents. PW5 duly identified the accused and the case
property.
11. PW6 is ACP S P Tyagi. He deposed that on
14.10.2018, he was posted as ACP at Najafgarh Sub
Division. On that day, when he was patrolling in the area
and when PW6 reached at bus stand, Health Centre,
Najafgarh, he found PW7/ASI Rambir Singh along with
other police officer and three persons Emmanuel, Vivek
Bagri and Mohit Kumar. He deposed that ASI Rambir
informed him regarding the seizure of 22 grams and 28
grams Heroin recovered from accused Vivek Bagri and
Mohit Kumar and Rs.45,000/- recovered from accused
Emmanuel. Thereafter, PW6 left the spot.
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On 16.10.2018, intimation under section 57 NDPS
Act regarding recovery of 50 grams Heroin (22+28 grams)
sent by PW7 ASI Rambir and arrest intimation of all
accused persons sent by PW5/SI Naveen Kumar was
received in his office and he had seen the intimations and
entries were made in the daily register as Ex.PW3/A.
12. PW7 ASI Rambir is the 1st IO in this case. He
deposed that on 14.10.2018 he was present in the Police
Station, one secret informer came to the P.S. and informed
him that one Nigerian will come to Kuda Ghar, Near
Health Centre, Najafgarh to supply of smack/Heroin and if
raided he can be apprehended. PW7 shared the information
and produced the secret informer before SHO/PW4
Inspector Sunil Kumar and after satisfaction of secret
information, PW4 ordered for further proceedings. The
secret information was reduced into writing vide DD no.
40B. Thereafter, PW7 prepared raiding party, consisting
of himself, PW8/HC Surender, Ct. Ashok, Ct. Surender
and PW9/HC Shakti and left the P.S. vide DD no. 41B
along with IO bag, Drug Testing Kit and reached at the
spot at about 9:20 PM where IO requested 4/5 persons to
join the investigation but all refused to join.
At about 10:00 PM, we noticed one Nigerian
National standing at bus stand of Health Centre and in the
meantime two boys came on Hero Honda Motorcycle
searched before any Gazetted Officer or Magistrate. PW7
prepared notice under section 50 NDPS Act, notice of
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accused Emmanuel is Ex. PW7/A, notice of accused Vivek
Bagri is Ex.PW7/B and notice of accused Mohit Kumar is
Ex. PW7/C.
PW7 took search of accused Vivek Bagri and Mohit
Kumar and from their personal search, one white colour
pudia wrapped in a plastic tape was recovered from their
right hand and on checking, the same was found having
white colour powdery substance which tested positive for
Heroin. The substance was weighed with the help of
Electronic Weighing Machine and the weight of the
substance recovered from accused Vivek Bagri came out
to be 22 grams and substance recovered from accused
Mohit Kumar came out to be 28 grams. PW7 took 2-2
grams samples from both pudia and kept them in
transparent box and Mark S1 to S4 was given and the
remaining substance was kept in transparent box and Mark
S5 and S6 was given. All the transparent boxes were
converted into pullanda and sealed with the seal of ‘RS’.
PW7 filled FSL form at the spot. Thereafter, PW7 took
the search of Emmanuel and during his search Rs.45,000/-
(500×90) were recovered from his right hand which were
given by accused Vivek and Mohit for purchase of Heroin
drugs, the same was kept in white cloth, converted into
pullanda and sealed with the seal of ‘RS’. Seal after use
was given to PW9/HC Shakti. In the meantime, ACP
Najafgarh Sh. S P Tyagi reached the spot and inquired
from accused persons and thereafter ACP left the spot.
PW7 seized the case property i.e. pullanda S1 to S6 vide
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seizure memo Ex. PW7/D and Rs. 45,000/- (pullanda Mark
S7) vide seizure memo Ex. PW7/E. PW7 prepared tehrir
under section 21 NDPS Act Ex. PW7/F and handed over
the same to PW9/Ct. Shakti for registration of FIR along
with copy of seizure memo and sealed case property for
registration of FIR and for proceedings under section 55
NDPS Act. After registration of the FIR, further
investigation was marked to PW5/SI Naveen. His
remaining testimony is on similar lines as that of PW5/SI
Naveen. PW7 identified the accused persons and case
properties Ex. P1 to Ex. P9.
13. PW8 HC Surender Singh and PW9 HC Shakti Singh
are members of the raiding team. Their testimony is on
similar lines as that of PW7/ASI Rambir and PW5/SI
Naveen.
14. PW10 Sh. Yogesh Chandra Pandey, Senior
Scientific Officer, FSL Rohini, Delhi is the expert witness.
PW10 deposed that on 03.12.2018, four sealed parcels
duly sealed with the seal of ‘SKR’ and ‘RS’ were received
in the office of FSL and the same was marked to him for
examination. After examining them by using chemical
TLC, GC and GCMS technique, sample S1 was found
containing Diacetylmorphine’, ‘6-Monoacetylmorphine,
‘Dextromethorphan’ and Acetaminophen. Sample S2, S3
and S4 were found to contain ‘Diacetylmorphine, 6-
Monoacetylmorphine,’Dextromethorphan’, Acetaminophen
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and Acetylcodeine. Samples S1, S2, S3 and S4 were found
to contain ‘Diacetylmorphine 8.76%, 11.93%, 14.10% and
12.56% respectively. After examination, the remnants of
the exhibits have been sealed with the seal of “YCP FSL
DELHI”. PW10 prepared detailed report Ex. PW10/A.
15. On 16.05.2024, Ld. Addl. P.P. for the State dropped
PW Ct. Ashok and Ct. Surender on the ground that they
were the members of the raiding team and other members
of the raiding team with similar role had already been
examined.
16. Thereafter, prosecution evidence was closed vide
order dated 06.08.2024 and statements of all accused
persons under Section 313 Cr.P.C have been recorded
whereby all the incriminating evidence was put to them to
which they stated that they were innocent and had been
falsely implicated in the present case. During the recording
of the statement, all accused persons stated that they did
not wish to lead defence evidence and final arguments
were heard.
17. In the meantime, accused Emmanuel Onyejegbu did
not appear before the court on multiple dates and thereafter
process under section 84 BNSS (under section 82 Cr.P.C.)
was issued against him and finally, he was declared
Proclaimed person vide order dated 10.03.2025. On
19.04.2025, after few days, accused Emmanuel Onyejegbu
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was arrested by the police on 19.04.2025 and produced
before the court.
18. Additional charge for the offence u/section 174A
IPC was framed against the accused Emmanuel on
03.06.2025 to which he pleaded guilty. He also voluntarily
pleaded guilty for the offence u/section 14 Foreigner’s Act.
19. Since, the matter was already at the stage of final
arguments, so arguments were heard regarding the
remaining charges for which all the three accused persons
were facing trial i.e. Section 21(b) read with section 29
NDPS Act.
20. I have considered the rival submissions and gone
through the voluminous documents and evidence available
on record.
21. All accused namely Emmanuel Onyejegbu, Vivek
Bagdi @ Sagar and Mohit Kumar stood charged under
section 21(b) read with section 29 NDPS Act. Accused
Emmanuel Onyejegbu was also facing trial for the offence
under section 14 Foreigner Act, 1946 and 174A IPC (now
209 BNS).
22. Since the accused Emmanuel Onyejegbu had already
pleaded guilty for the offences under section 14 Foreigner
Act, 1946 and 174A IPC, the same will not be dealt with in
the discussion to follow and the court will only appreciate
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evidence to see whether prosecution has been able to prove
the offence under section 21(b) read with section 29 NDPS
Act against the three accused persons.
23. 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.
24. 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
contraband truly was recovered from the accused and was
indeed illicit. Only if procedural defects jeopardize or
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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.
25. It is settled proposition of law that the provisions of
Code of Criminal Procedure, 1973 relating to searches and
seizure shall apply, so far as may be, to searches and
seizure under NDPS Act also. Search and seizure are
essential steps in the armory of an investigator in the
investigation of a criminal case. The Cr.P.C. itself
recognizes the necessity and usefulness of search and
seizure during the investigation as is evident from the
provisions of Sections 96 to 103 and Section 165 of the
Criminal Procedure Code. The provisions of Section 100
and 165 Cr.P.C. are not inconsistent with the provisions of
the NDPS Act and are applicable for affecting search,
seizure or arrest under the NDPS Act also. However, when
an empowered officer carrying on the investigation
including search, seizure or arrest under the provisions of
the Cr.P.C. comes across a person being in possession of
the narcotic drugs or the psychotropic substance, then he
must follow from that stage onwards the provisions of
the NDPS Act and continue the investigation as provided
thereunder. If the investigating officer is not an
empowered officer then it is expected of him that he must
inform the empowered officer under the NDPS Act, who
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should thereafter proceed from that stage in accordance
with the provisions of the NDPS Act.
Discussion on Section 42 NDPS Act
26. The first argument raised by the Ld. Defence
counsel is that there is non-compliance of Section 42 of
NDPS Act because ASI Rambir had received the secret
information in the present case but he did not reduce into
writing, the entire content of secret information.
27. NDPS Act requires that any information received by
the empowered officer about narcotic drugs or
psychotropic substance or involvement of a person in
NDPS offence must be taken down in writing and a copy
must be sent to immediate superior officer. The proper
maintenance of the record regarding the secret information
is not a mere formality but is a safeguard to prevent misuse
and to ensure legal fairness. If the officer who has
received the secret information, fails to properly record the
same or if the information recorded is incomplete, the
same can be a reason for drawing adverse inference against
the prosecution and also creates a doubt regarding the
credibility of the investigation and evidence collected.
28. In the case of DRI Vs. Mohd. Nisar Holia, Hon’ble
Supreme Court of India, had discussed the nuances of
Section 42 of NDPS Act and the effect of non-compliance
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of Section 42. The purpose of maintaining public records
is to prevent arbitrary or malicious action by an
enforcement officer. Maintaining proper records also
creates a verifiable chain of investigation and action which
can later withstand judicial scrutiny. If the police or
investigating agency fails to properly record the secret
information as per legal requirements it can lead the
accused to take the benefit of doubt. If the apprehension
and specific search/seizure are made on the basis of prior
secret information, then it is mandatory for the empowered
officer to take this into writing and forward the copy to his
immediate superior without delay, preferably within 72
hours. The recorded information must include all material
details and it is a procedural safeguard and as such the
compliance of this provision is statutory and non-
negotiable for the investigation/admissibility of evidence
and seeks fairness of investigation. On the contrary, in the
cases of chance recovery, these requirements do not apply.
Instead the officer has to make a report of arrest/seizure to
his superior within 48 hours under Section 57 of the Act.
29. Adverting to the facts of the present case, as per the
prosecution story, the secret informer shared the
information with ASI Rambir and the information was
recorded under DD no. 40B Ex. PW-7/D which reads as
follows :-
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” समय 8/30 बजे रात दर्ज है इस वक्त मुखबर खास में हाजिर थाना
आकर मन ASI को मुखबिर Information वान्ट हेरोइन दी जिसको मन
ASI ने जनाब SHO साहब को पेश किया जनाब SHO ने हालात
मुखबरी सुनेने के बाद सिनियर अफदेश से यंदा करने के बाद भन ASL
तुरंत छापा डालने का आदेश फरमाया बकलम ASI खुद
30. Prosecution examined ASI Rambir as PW-7 who
deposed in his examination-in-chief that “one secret
informer came to PS and informed him that one Nigerian
national would come at Kuda Ghar, Health Centre,
Najafgarh for supplying of Smack/Heroin and he can be
apprehended, if raid is conducted.” The testimony of ASI
Rambir shows that the entire secret information received
by him on 14.10.2018 was not recorded by him while
writing DD no. 40B. He neither mentioned about any
Nigerian national nor mentioned the location in the secret
information Ex. PW7/D-1. It is only mentioned in the said
DD entry that the informer gave him secret information
regarding Heroin but it is evident that same is an
incomplete information.
31. Similarly, if we see the testimony of PW-8 HC
Surender, he deposed that ASI Rambir received secret
information regarding buying and selling of drugs but he
did not depose anything regarding the place where the said
dealing of drugs would be done whereas PW-9 HC Shakti,
who was also the part of raiding team, deposed that ASI
Rambir informed him that raid is to be conducted
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regarding the recovery of narcotic drug from Kuda Ghar,
Health Centre, Najafgarh.
32. It is clear from the testimony of ASI Rambir and the
testimony of other members of raiding team that ASI
Rambir had complete knowledge about the place where
raid was to be conducted i.e. Kuda Ghar, Health Centre,
Najafgarh but he did not record the said information while
writing DD no. 40B. The non-recording of information by
PW7 ASI Rambir has in fact deprived the accused as well
as the Court of the material to ascertain what was the
precise information which PW7 got before proceeding for
the raid. An information which is the earliest in point of
time has a great value for ascertaining the extent of the
involvement of the accused in the offence and the non-
recording of this vital information collected by the police
at the first instance can be counted as a circumstance in
favour of the accused. It was mandatory for ASI Rambir to
record the complete information, whereas he did not do so
which is a clear non-compliance of Section 42 of NDPS
Act apart from the violation of Punjab Police
Rules and the accused deserves to be given the benefit for
the same.
Discussion on Section 50 NDPS Act
33. As per the prosecution story, after all the three
accused persons were apprehended, PW-7 gave notice
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under Section 50 NDPS Act to the accused persons and
informed them of their legal rights to be searched by a
nearest Gazetted officer or Magistrate.
34. The first and foremost arguments raised by Ld.
defence counsel is that the accused were required to be
searched before magistrate or gazetted officer, however,
the notice under Section 50 NDPS Act was not served to
any of the three accused persons and only their signatures
were obtained on the notice and the accused were not
informed about their statutory right under Section 50
NDPS Act. (Reliance placed upon Sumit Rai @ Subodh
Rai Vs. State CRL.A. 578/2017 dated 29.07.2019, Arif
Khan Vs. State of Uttarakhand AIR 2018 SC 2123, Dilip
Vs. State of MP (2007) 1 SCC 450, State of Rajasthan vs
Parmanand (2014) 5 SCC 345 and State Vs Vicky
CRL.L.P. 143/2017 dated 13.09.2019).
35. Section 50 of the NDPS Act reads as follows:
“50. Conditions under which search of persons shall be
conducted.–(1) When any officer duly authorized 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) ………..”
36. To be searched before a Gazetted Officer or a
Magistrate, if the suspect so requires, is an extremely
valuable right which the legislature has given to the
concerned person having regard to the grave consequences
Page 20 of 42
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that may entail the possession of illicit articles under
the NDPS Act. It appears to have been incorporated in the
Act keeping in view the severity of the punishment. The
rationale behind the provision is even otherwise manifest.
The search before a Gazetted Officer or a Magistrate
would impart much more authenticity and creditworthiness
to the search and seizure proceeding. It would also verily
strengthen the prosecution case.
37. In the landmark judgment of State of Punjab vs
Balbir Singh, 1994 AIR 1872, while dealing with Section
50, it was held by the Division Bench of Hon’ble Apex
Court that in the context in which the right had been
conferred, it must naturally be presumed that it is
imperative on the part of the officer to inform the person to
be searched of his right that, if he so requires, he shall be
searched before a Gazetted Officer or Magistrate and on
such request being made by him, to be taken before the
Gazetted Officer or Magistrate for further proceedings. It
was further held in this case that the accused must be made
aware of that right by the empowered officer by informing
him of the existence of that right and the Court went on to
hold that failure to inform the person to be searched of that
right and if he so requires, failure to take him to the
Gazetted Officer or the Magistrate, would mean non-
compliance with the provisions of Section 50 which in turn
would affect the prosecution case and vitiate the Trial. It
was held in Balbir Singh (supra ) as:
Page 21 of 42
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“18……….. In the context in which this right has been
conferred, it must naturally be presumed that it is
imperative on the part of the officer to inform the
person to be searched of his right that if he so requires
to be searched before a gazetted officer or a magistrate.
To us, it appears that this is a valuable right given to the
person to be searched in the presence of a gazetted
officer or a magistrate if he so requires, since such a
search would impart much more authenticity and
creditworthiness to the proceedings while equally
providing an important safeguard to the accused. To
afford such an opportunity to the person to be searched,
he must be aware of his right and that can be done only
by the authorized officer informing him. The language
is clear and the provision implicitly makes it obligatory
on the authorized officer to inform the person to be
searched of his right………..
19. Wide powers are conferred on the officers and
deterrent sentences are also provided for the offences
under the Act. It is obvious that the legislature while
keeping in view the menace of illicit drug trafficking
deemed it fit to provide for corresponding safeguards to
check the misuse of power thus conferred so that any
harm to the innocent persons is avoided and to minimise
the allegations of planting or fabricating by the
prosecution, Section 50 is enacted.
38. Therefore, it is to be taken as an imperative requirement
on the part of the officer intending to search to inform the
person to be searched of his right that if he so chooses, he will
be searched in the presence of a gazzetted officer or a
magistrate. Thus, the provisions of Section 50 are mandatory.
39. The view taken in the case of Balbir Singh(supra)
came up for consideration before the Constitution Bench
of Apex Court in the landmark judgment of State of
Punjab vs Baldev Singh, wherein after due deliberation, it
was held as :-
“……………Courts have to be satisfied at the trial of the
case about due compliance with the requirements providedPage 22 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbuin Section 50. No presumption under Section 54 of the Act
can be raised against an accused, unless the prosecution
establishes it to the satisfaction of the court, that the
requirements of Section 50 were duly complied with. The
safeguard or protection to be searched in presence of a
Gazetted Officer or a Magistrate has been incorporated in
Section 50 to ensure that persons are only searched with a
good cause and also with a view to maintain veracity of
evidence derived from such search. We have already
noticed that severe punishments have been provided under
the Act for mere possession of Illicit Drugs and Narcotic
Substances. Personal search, more particularly for
offences under the NDPS Act, are critical means of
obtaining evidence of possession and it is, therefore,
necessary that the safeguards provided in Section 50 of the
Act are observed scrupulously. The duty to inform the
suspect of his right to be searched in presence of a
Gazetted Officer or a Magistrate is a necessary sequence
for enabling the concerned person to exercise that right
under Section 50 because after Maneka Gandhi V. Union
of India, (1978) 1 SCC 248, it is no longer permissible to
contend that the right to personal liberty can be curtailed
even temporarily, by a procedure which is not reasonable,
fair and just and when a statute itself provides for a just
procedure, it must be honoured. Conducting a search
under Section 50, without intimating to the suspect that he
has a right to be searched before a Gazetted Officer or a
Magistrate, would be violative of the reasonable, fair and
just procedure and the safeguard contained in Section
50 would be rendered illusory, otiose and meaningless.
………………This Court cannot over-look the context in
which the NDPS Act operates and particularly the factor
of widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in mind
that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a statute are
scrupulously followed. We are not able to find any reason
as to why the empowered officer should shirk from
affording a real opportunity to the suspect, by intimating
to him that he has a right “that if he requires” to be
searched in the presence of a Gazetted Officer or a
Magistrate, he shall be searched only in that manner. As
already observed the compliance with the procedural
safeguards contained in Section 50 are intended to serve
dual purpose to protect a person against false accusation
and frivolous charges as also to lend credibility to the
search and seizure conducted by the empowered
officer…………..”
Page 23 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbu
“,…………….(4) That there is indeed need to protect
society from criminals. The societal intent in safety will
suffer if persons who commit crimes are let off because
the evidence against them is to be treated as if it does not
exist. The answer, therefore, is that the investigating
agency must follow the procedure as envisaged by the
statute scrupulously and the failure to do so must be
viewed by the higher authorities seriously inviting action
against the concerned official so that the laxity on the part
of the investigating authority is curbed. In every case the
end result is important but the means to achieve it must
remain above board. The remedy cannot be worse than the
disease itself. The legitimacy of judicial process may
come under cloud if the court is seen to condone acts of
lawlessness conducted by the investigating agency during
search operations and may also undermine respect for law
and may have the effect of unconscionably compromising
the administration of justice. That cannot be permitted. An
accused is entitled to a fair trial. A conviction resulting
from an unfair trial is contrary to our concept of justice.
The use of evidence collected in breach of the safeguards
given by Section 50 at the trial, would render the trial
unfair.
(5) That whether or not the safeguards provided in Section
50 have been duly observed would have to be determined
by the Court on the basis of evidence led at the trial.
Finding on that issue, one way or the other, would be
relevant for recording an order of conviction or acquittal.
Without giving an opportunity to the prosecution to
establish, at the trial, that the provisions of Section 50, and
particularly the safeguards provided therein were duly
complied with, it would not be permissible to cut- short a
criminal trial;
(6) That in the context in which the protection has been
incorporated in Section 50 for the benefit of the person
intended to be searched, we do not express any opinion
whether the provisions of Section 50 are mandatory or
directory, but, hold that failure to inform the concerned
person of his right as emanating from Sub-section (1) of
Section 50, may render the recovery of the contraband
suspect and the conviction and sentence of an accused bad
and unsustainable in law;
(7) That an illicit article seized from the person of an
accused during search conducted in violation of the
safeguards provided in Section 50 of the Act cannot be
used as evidence of proof of unlawful possession of the
contraband on the accused though any other material
Page 24 of 42
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recovered during that search may be relied upon by the
prosecution, in other proceedings, against an accused,
notwithstanding the recovery of that material during an
illegal search;
(8) A presumption under Section 54 of the Act can only be
raised after the prosecution has established that the
accused was found to be in possession of the contraband
in a search conducted in accordance with the mandate
of Section 50. An illegal search cannot entitle the
prosecution to raise a presumption under Section 54 of
the Act.”
40. It is thus no longer res integra that it is the duty of
the empowered officer to inform the suspect about his right
to be searched before a Magistrate or a Gazetted Officer.
41. Adverting to the present case, PW7/ IO ASI Rambir
deposed that he introduced himself to the accused persons
and thereafter apprised the accused persons that their
personal search can be conducted before any gazetted
officer or Magistrate, on which all the accused persons
replied that they did not want to be searched before any
gazetted officer or Magistrate. Thereafter, he prepared
notices under Section 50 NDPS Act and served to the
accused persons.
42. At this stage, it is relevant to reproduce the content
of notices under Section 50 NDPS Act which are Ex.
PW7/A, Ex. PW7/B and Ex. PW7/C respectively. The
relevant portion of the aforesaid notices is reproduced as
under :-
Page 25 of 42
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“……jisne sunkar samjhkar apne signature/
hastakshar kiye va kaha ki aap meri talashi le sakte
hain”
43. A reading of the testimony of PW7 shows that he
categorically deposed that all the accused persons replied
that they did not want to be searched before any gazetted
officer or Magistrate whereas the notices Ex. PW7/A to
Ex. PW7/C would reveal that the accused persons did not
say that they do not want to be searched by a Magistrate or
Gazetted officer. It is only mentioned that they said that
the police can take their personal search. There is a clear
difference between the consent as recorded in the notices
and deposition of IO with respect to the consent given by
the accused persons in response to the notice under Section
50 NDPS Act. When a person denies that he does not want
to be searched by a magistrate and Gazetted officer, this
implies that he consciously made the said choice after
understanding the repercussions and pros and cons of
making that choice but simply saying that police can take
my search clearly shows that the the accused was not
explained his legal right properly. Moreover, if a person is
told that if he desires, he can be searched before a
Magistrate or Gazetted Officer, he will, at most, simply
deny that he does not want to avail the said option and he
wouldn’t say that police may take his search. This clearly
shows that the accused persons were not explained about
their legal right of search under Section 50 NDPS Act.
Page 26 of 42
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44. Hon’ble Supreme Court, in the case of Saiyad Mohd
Saiyad Umar Saiyed & Ors Vs The State of Gujarat 1995
SCC (3) 610, upheld the view taken in the case of Balbir
Singh regarding the duty of the empowered officer to
inform the suspect about his right to be searched before a
Magistrate or a Gazetted Officer and it was held as:-
“8. It is to be noted that under the NDPS
Act punishment for contravention of its provisions
can extend to rigorous imprisonment for a term
which shall not be less than IO years but which May
extend to 20 years and also to fine which shall not be
less than Rupees one lakh but which may extend to
Rupees two lakhs, and the court is empowered to
impose a fine exceeding Rupees two lakhs for
reasons to be recorded in its judgment. Section 54 of
the NDPS Act shifts the onus of proving his
innocence upon the accused; it states that in trials
under the NDPS Act it may be presumed, unless and
until the contrary is Proved, that an accused has
committed an offence under it in respect of the
articles covered by it “for the possession of which he
fails to account satisfactorily”. Having regard to the
grave consequences that may entail the possession of
illicit articles under the NDPS Act, namely, the
shifting of the onus to the accused and the severe
punishment to which he becomes liable, the
legislature has enacted the safeguard contained
in Section 50. To obviate any doubt as to the
possession by the accused of illicit articles under
the NDPS Act, the accused is authorised to require
the search for such possession to be conducted in the
presence of a Gazetted Officer or a Magistrate. We
endorse the finding in Balbir Singh‘s case that the
provisions in this behalf are mandatory and the
language thereof obliges the officer concerned to
inform the person to be searched of his right to
demand that the search be conducted in the presence
of a Gazetted Officer or a Magistrate.
9. Having regard to the object for which the
provisions of Section 50 have been introduced into
the NDPS Act and when the language thereofPage 27 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbuobliges the officer concerned to inform the person to
be searched of his right to be searched in the
presence of a Gazetted Officer or a Magistrate, there
is no room for drawing a presumption under Section
114, illustration (e) of the Indian Evidence Act,1872.
By reason of Section 114 a court “may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course of
natural events, human conduct and public and
private business, in their relation to facts of the
particular case.” It may presume ” (e) that judicial
and official acts have been regularly performed.”
There is no room for such presumption because the
possession of illicit articles under the NDPS Act has
to be satisfactorily established before the court. The
fact of seizure thereof after a search has to be
proved. When evidence of the search is given all that
transpired in its connection must be stated. Very
relevant in this behalf is the testimony of the officer
conducting the search that he had informed the
person to be searched that he was entitled to demand
that the search be carried out in the presence of a
Gazetted Officer or a Magistrate and that the person
had not chosen to so demand. If no evidence to this
effect is given the court must assume that the person
to be searched was not informed of the protection the
law gave him and must find that the possession of
illicit articles under the NDPS Act was not
established.
10. We are unable to share the High Court’s view
that in cases under the NDPS Act it is the duty of the
court to raise a presumption, when the officer
concerned has not deposed that he had followed the
procedure mandated by Section 50, that he had in
fact done so. When the officer concerned has not
deposed that he had followed the procedure
mandated by Section 50, the court is duty bound to
conclude that the accused had not had the benefit of
the protection that Section 50 affords; that, therefore,
his possession of articles which are illicit under
the NDPS Act is not established; that the pre-
condition for his having to satisfactorily accounted
for such possession has not been met; and to acquit
the accused.
12. Finding a person to be in possession of articles
which are illicit under the provisions of NDPS
Act has, as we have said, the consequence of
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requiring him to prove that he was not in
contravention of its provisions and it renders him
liable to punishment which can extend to 20 years
rigorous imprisonment and a fine of Rupees two
lakhs or more. It is necessary, therefore, that courts
dealing with offences under then NDPS Act should
be very careful to see that it is established to their
satisfaction that the accused has been informed by
the concerned officer that he had a right to choose to
be searched before a Gazetted Officer or a
Magistrate. It need hardly be emphasised that the
accused must be made aware of this right or
protection granted by the statute and unless cogent
evidence is produced to show that he was made
aware of such right or protection, there would be no
question of presuming that the requirements
of Section 50 were complied with. Instructions in
this behalf need to be issued so that investigation
officers take care to comply with the statutory
requirement and drug peddlers do not go scot free
due to non-compliance thereof Such instructions
would be of great value in the effort to curb drug
trafficking. At the same time, those accused of
possessing drugs should, however heinous their
offence may appear to be, have the safeguard that the
law prescribes.”
45. It is clear from the judgment of Saiyad Mohd.
Saiyad Umar Saiyed (supra) that in the event of failure of
Investigation/empowered officer (PW7 herein) to
specifically depose that the accused persons had agreed for
their search by the police party, the court cannot raise the
presumption that the accused had given such consent.
46. Hence, in the present case, it is evident that the
accused persons were not properly informed of the
protection given to them by the law and hence, solely on
this ground also, the possession of illicit articles under the
NDPS Act is not established on record.
Page 29 of 42
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Effect of mentioning of FIR number on the Seizure memo
of Heroine and Concealing material
47. The next argument of ld. Counsel is that as per the
prosecution story, Heroin was seized from the possession
of accused persons prior to registration of FIR but perusal
of seizure memos Ex. PW7/D and Ex. PW5/E would
reveal that FIR number is mentioned on the top of both the
seizure memos which means that the document is
manipulated by the police.
48. It is claimed by the prosecution that a raid was
conducted and Heroin which was recovered from the
possession of accused persons was seized vide seizure
memo Ex. PW7/D and the concealing material was seized
vide memo Ex. PW5/E and the said Heroin was recovered
before the registration of FIR whereas both the seizure
memos already contain the FIR number on the top. It
remained explained as to how the FIR number is
mentioned on the seizure memos when the FIR has already
been registered at the time of alleged seizure.
49. Admittedly, the recovery was effected from the
accused persons pursuant to raid and the seizing IO/ASI
Rambir prepared a rukka which became the basis of
registration of FIR. Generally, after an FIR is lodged on
the basis of rukka, then only the FIR number is endorsed
on the documents which are prepared subsequent to the
Page 30 of 42
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registration of the FIR. Normally, there can be only two
possibilities- one, that the FIR number was later on added
in the recovery memos after the registration of FIR or the
recovery had taken place after the registration of FIR but
the facts of present case are covered under the first
situation. If the seizure memo was modified lateron by
putting the FIR number, same leads to manipulation of the
documents. Moreover, none of the prosecution witness
examined by the prosecution i.e. the first IO/ASI Rambir,
or 2nd IO SI Naveen or any other official of the raiding
party namely HC Surender and HC Shakti have deposed
anything in this regard.
50. In a case titled Pawan Kumar Vs. Delhi
Administration, delivered by Hon’ble High Court of Delhi,
1989 CRI LJ 127, it is observed in para 5 as under :
“Furthermore, in the recovery memo, the description of
the knife is shown on the blade as “B. M. Rampur,
U.P.”. Same words were repeated in the ruqa, which was
sent to the Police Station for registration of the case and
naturally the same wording was incorporated in the First
Information Report Ex.PW11/G. Unfortunately, these
words do not find mention in the sketch plan of Knife.
On the blade, only “Rampur” is written whereas the
words “B.M.” and “U.P.” are missing. These two
discrepancies go to show that the knife shown to have
been recovered from the accused at the time of his arrest
is not the same which was deposited in the Malkhana as
the case property. This aspect can also be looked into
from another angle. Learned counsel for the state
concedes that immediately after the arrest of the
accused, his personal search was effected and the memo
Ex.PW11/D was prepared. Thereafter, the sketch plan of
the knife was prepared in the presence of the witnesses.
After that, the ruqa Ex.PW11/F was sent to the Police
Station for the registration of the case on the basis of
which the FIR, PW 11/G was recorded. The F.I.R. isPage 31 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbunumbered as 36, a copy of which was sent to the I.O.
after its registration. It comes to that the number of
F.I.R. 36 came to the knowledge of the I.O. after a copy
of it was delivered to him at the spot by a constable. In
the normal circumstances, the F.I.R. No. should not find
mention in the recovery memo or the sketch plan which
had come into existence before the registration of the
case. However, from the perusal of the recovery memo, I
find that the FIR is mentioned whereas the sketch plan
does not show the number of the FIR. It is not explained
as to how and under what circumstances the recovery
memo came to bear the F.I.R. No. which had already
come into existence before the registration of the case.
These are few of the circumstances which create a
doubt, in my mind, about the genuineness of the weapon
of offence alleged to have been recovered from the
accused.”
51. In the instant case, no explanation has been
furnished as to how FIR number and other details have
appeared in the seizure memo Ex. PW7/D and Ex. PW5/E
and the same leads to only one inference that the said
documents were prepared lateron or that the FIR had been
registered earlier at that point of time. Accordingly, a dent
is created and unexplained holes are left in the prosecution
story, the benefit of which must accrue to the accused.
Non-compliance of Section 55 NDPS Act
52. Section 55 NDPS Act which provides further
safeguard requiring it mandatory for police officer to affix
his seal after the property has been received. Section 55
clearly goes to show that all samples taken from the seized
material under this Act have necessarily to be sealed with
the seal of an officer-in-charge of the police station. This is
the mandate of law which the words used are “shall”
leaving no discretion in the hands of the concerned.
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53. It is the case of the prosecution that after seizure,
the case property was sealed by the IOASI Rambir with
seal of RS and thereafter PW9/Ct. Shakti Singh produced
the sealed case property bearing the seal of ‘RS’ before
PW4/ SHO Inspector Sunil Kumar and PW4 counter
sealed all the pullandas with seal of ‘SKR’ and MHC(M)
the relevant entry at sl. no. 3888 in register no. 19 as Ex.
PW4/A.
54. In the case in hand, the case property register
Ex.PW4/A shows that the name of depositor of the case
property is recorded as ASI Rambir and neither the name
nor the signatures of SHO P.S. Chhawla are present in the
case property register. Even, the column of description of
the property deposited in the malkhana with respect to
Ganja nowhere records that the case property was bearing
the seal of the SHO concerned. The description of
property with respect to the seized heroine and its samples
shows that it only had the seal of ‘RS’ i.e. seal of ASI
Rambir. The malkhana register nowhere records whether
the pullandas containing ganja and its samples were
counter sealed by the SHO with his seal. Admittedly, the
case property was handed over to PW4 by PW9 Ct. Shakti
and after countersealing PW4 handed over the case
property to the then MHC(M) Ct. Som Dutt for depositing
in Malkhana but interestingly, PW9 did not depose
anything regarding countersealing by SHO and th other
witness i.e. HC Som Dutt has not been examined by the
Page 33 of 42
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prosecution in this regard. It goes without saying that the
non-compliance of mandatory provisions of Section 55
NDPS Act casts serious doubt about the prosecution case.
Non-compliance of Section 52-A NDPS Act
55. Apart from the above discrepancies and loopholes,
there is also a zero compliance of the provisions of Section
52A of NDPS Act and the said provision is reproduced
here under:
52A. Disposal of seized narcotic drugs and
psychotropic substances.–
(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class
of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of by
such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic
substances, controlled substances or conveyances has
been seized and forwarded to the officer-in-charge of
the nearest police station or to the officer empowered
under section 53, the officer referred to in sub-section
(1) shall prepare an inventory of such narcotic drugs,
psychotropic substances, controlled substances or
conveyances] containing such details relating to their
description, quality, quantity, mode of packing, marks,
numbers or such other identifying particulars of the
narcotic drugs, psychotropic substances, controlled
substances or conveyances or the packing in which
they are packed, country of origin and other particularsPage 34 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbuas the officer referred to in sub-section (1) may
consider relevant to the identity of the narcotic drugs,
psychotropic substances, controlled substances or
conveyances in any proceedings under this Act and
make an application, to any Magistrate for the purpose
of–
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such magistrate,
photographs of such drugs, substances or
conveyances] and certifying such photographs as true;
or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such magistrate
and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub-section
(2), the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the
inventory, the photographs of narcotic drugs,
psychotropic substances, controlled substances or
conveyances and any list of samples drawn under sub-
section (2) and certified by the Magistrate, as primary
evidence in respect of such offence.
56. In the case of Mangi Lal Vs State of Madhya
Pradesh, it was observed by the Hon’ble Supreme Court
as:-
“4. Sub-Section (1) of Section 52A of NDPS Act
facilitates the government to prescribe a mode for the
disposal of seized narcotic substance with the idea to
create a proper mechanism to safeguard the contraband
from being used for any illegal purpose thereafter.
5. Sub-Section (2) of Section 52 A of NDPS Act
mandates the competent officer to prepare an inventory
of such narcotic drugs with adequate particulars. This has
to be followed through an appropriate application to the
Magistrate concerned for the purpose of certifying the
correctness of inventory, taking relevant photographs inPage 35 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbuhis presence and certifying them as true or drawing the
samples in his presence with due certification. The object
behind this provision is to have an element of supervision
by the Magistrate over the disposal of seized contraband.
Such inventories, photographs and list of samples drawn
with certification by the Magistrate will constitute as a
primary evidence.
6. The obvious reason behind this provision is to inject
fair play in the process of investigation. Section 52A of
the NDPS Act is a mandatory rule of evidence which
requires the physical presence of a Magistrate followed
by an order facilitating his approval either for certifying
an inventory or for a photograph taken apart from list of
samples drawn. In due compliance of Section 52A(1) of
the NDPS Act the Ministry of Finance (Department of
Revenue) issued a Notification No. G.S.R. 339(E) dated
10.05.2007 which furnishes an exhaustive manner and
mode of disposal of drugs ending with a certificate of
destruction:”
57. Therefore, when there is a non-compliance of
Section 52 A of NDPS Act i.e. wherever a certification of
a Magistrate is lacking, any inventory, photograph or list
of samples would not constitute primary evidence. Section
52 A of NDPS Act is mandatory rule of evidence which
requires the mandatory certification by the Magistrate. The
non-production of primary evidence would lead to a
negative inference within the meaning of Section 114 (g)
of Indian Evidence Act, 1872 (now section 111 BSA).
58. In the case of Union of India Vs. Mohan Lal, 2016
(3) SCC 379, the issue of seizure and sampling in the
presence of Magistrate was discussed and it was held that :
“17. The question of drawing of samples at the time of
seizure which, more often than not, takes place in the
absence of the Magistrate does not in the above schemePage 36 of 42
SC no. 1088/2018 State Vs Emmanuel Onyejegbuof things arise. This is so especially when according
to Section 52 A (4) of the Act, samples drawn and
certified by the Magistrate in compliance with Sub-
section (2) and (3) of Section 52 A above constitute
primary evidence for the purpose of the trial. Suffice it
to say that there is no provision in the Act that
mandates taking of samples at the time of seizure. That
is perhaps why none of the States claim to be taking
samples at the time of seizure.
……………………..
19. … There is in our opinion no manner of doubt that
the seizure of the contraband must be followed by an
application for drawing of samples and certification as
contemplated under the Act. There is equally no doubt
that the process of making any such application and
resultant sampling and certification cannot be left to the
whims of the officers concerned. The scheme of the Act
in general and Section 52 A in particular, does not
brook any delay in the matter of making of an
application or the drawing of samples and certification.
While we see no room for prescribing or reading a time
frame into the provision, we are of the view that an
application for sampling and certification ought to be
made without undue delay and the Magistrate on
receipt of any such application will be expected to
attend to the application and do the needful, within a
reasonable period and without any undue delay or
procrastination as is mandated by Sub-section (3)
of Section 52 A … …………………
31. To sum up we direct as under :
No sooner the seizure of any Narcotic Drugs and
Psychotropic and controlled Substances and
Conveyances is effected, the same shall be forwarded
to the officer in-charge of the nearest police station or
to the officer empowered under Section 53 of the Act.
The officer concerned shall then approach the
Magistrate with an application under Section 52 A(ii)of
the Act, which shall be allowed by the Magistrate as
soon as may be required under Sub-Section 3 of
Section 52 A, as discussed by us in the body of this
judgment under the heading ‘seizure and sampling’.
The sampling shall be done under the supervision of the
magistrate as discussed in paras 13 and 14 of this order
…………..”
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59. Coming to the facts of the case, it is a matter of
record that recovered heroin was seized by PW-7 and he
himself had taken out 4 samples out of the recovered
heroin. As already discussed above, the recovered heroin
was not produced before the Magistrate. No photography
of the sampling proceedings are on record. No FSL form
or inventory is proved on record. There is no certification
of seized items or of the inventory which implies that there
is no primary evidence in this case and as such the FSL
report Ex. PW10/A is just a piece of paper and cannot be
relied upon to base the conviction of the accused persons.
In the opinion of this court, the procedure adopted by the
IO in the present case for drawing samples neither
conforms to the procedure prescribed under Section 52A
of NDPS Act nor under the Standing Orders and the
accused is certainly entitled to take benefit for the same.
Chain of custody not proved
60. 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
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.
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SC no. 1088/2018 State Vs Emmanuel Onyejegbu
61. 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
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.
62. 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
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SC no. 1088/2018 State Vs Emmanuel Onyejegbu
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/heroin 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 examining the concerned MHC(M) who had
deposited the case property in the malkhana and non-
production of register no. 19 and 21, prosecution has failed
to prove that the chain of custody of the seized contraband
was properly maintained or that the case property
remained untampered throughout the investigation and
trial.
63. Another interesting fact to be noted in the present
case is that the prosecution claims and to have seized a
sum of Rs. 45,000/- from the possession of the accused
persons which was allegedly given by the accused Mohit
Kumar and Vivek Bagdi to the accused Emmanuel for
purchasing Heroin but a perusal of the site plan Ex.
PW5/H would reveal that the amount is mentioned as Rs.
90,000/-. Site plan was prepared by SI Naveen at the
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SC no. 1088/2018 State Vs Emmanuel Onyejegbu
instance of ASI Rambir but there is no explanation as to
what was the actual amount seized by ASI Rambir,
whether it was Rs. 45,000/- and no explanation has come
in evidence of SI Naveen or ASI Rambir as to whether the
amount which is mentioned in the site plan is the correct
amount or same is a typographical error.
64. 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
in case, there is any doubt, then benefit of doubt should be
given to the accused.
65. 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 persons beyond reasonable doubt, hence, the
accused persons namely Emmanuel Onyejegbu, Vivek
Bagdi and Mohit Kumar are hereby acquitted from the
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SC no. 1088/2018 State Vs Emmanuel Onyejegbu
charges under Section 21 (b) r/w Section 29 NDPS Act
framed against them.
66. Accused Emmanuel Onyejegbu had pleaded guilty
for the offences under section 14 Foreigner Act, 1946 and
174A IPC. This court is satisfied that the plea of guilt of
the accused is voluntary and made without and force or
coercion. Accordingly, in view of the plea of guilt of
accused Emmanuel, he is convicted for the offence
punishable under section 14 Foreigner Act and Section
174A IPC.
67. Copy of this judgment be given to accused
personsfree of cost.
68. Case property is confiscated to State and be disposed
of as per rules.
69. List now for arguments on the point of sentence qua
accused Emmanuel Onyejegbu. Digitally signed
MANU by MANU
GOEL KHARB
GOEL Date:
2025.07.25
KHARB 18:01:20
+0530Announced in the open court today (Manu Goel Kharb)
i.e. 25.07.2025 Special Judge (NDPS)-02
South West District
Dwarka Courts: Delhi.
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