Delhi District Court
State vs Hemraj @ Shera on 23 August, 2025
1
IN THE COURT OF SHRI PUNEET PAHWA
SPECIAL JUDGE (NDPS)/NORTH EAST DISTRICT
KARKARDOOMA COURTS DELHI
SESSIONS CASE NO. 339/2017
CNR No. DLNE01-009979-2016
STATE Versus Hemraj @ Shera
S/o Late Sh. Niranjan Singh
R/o H. No. W-45 A/55,
P-1 Block, Sultanpuri, Delhi
FIR No. : 78/2017
PS. : Crime Branch
U/s. : 21/29 NDPS Act
Chargesheet Filed On : 18.11.2017
Judgment Reserved On : 04.08.2025
Judgment Announced On: 23.08.2025
Decision : Acquittal
JUDGMENT:
1. Case of the prosecution is that on 25.05.2017, at
about 4:00 PM, one secret informer came to the office of
Narcotic Cell and informed ASI Omvir Dabas that one person
namely Hemraj @ Shera, who is resident of Sultanpuri alongwith
his associate namely Neetu @ Nika, who is resident of
somewhere in Peeragadi Camp, supply heroin in Delhi, after
bringing the same from Bareilly, U.P. He also informed that the
both the said persons would come on that day in between 5:30
PM to 6:00 PM near Bus Stand Guru Dwara Nanaksar for
supplying the huge quantity of heroin to someone and if raid is
conducted on time, they can be apprehended alongwith the illegal
heroin. Thereafter, ASI Omvir Dabas, after satisfying himself
with the said secret information, produced the said secret
SC No. 339/2017 State Vs. Hemraj @ Shera
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PUNEET PAHWA
PAHWA Date:
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2informer before Insp. Brij Pal Singh, who after satisfying
himself, conveyed the said secret information to Sh. Sanjeev
Kumar Tyagi, ACP/N&CP at his office, who directed for
conducting the raid as per law.
2. ASI Omvir Dabas reduced the said information into
writing, vide DD No. 20 and produced the same before Insp. Brij
Pal Singh for the purpose of compliance of notice u/s. 42 of
NDPS Act. Thereafter, HC Ramesh and Ct. Pankaj were called in
the office of Narcotics and both were apprised about the secret
information and a raiding team was prepared.
3. At 4:30 PM, after lodging DD No. 21, ASI Omvir
Dabas alongwith the raiding team, secret informer, IO bag, field
testing kit and the electronic weighing machine left for the spot
in a Govt. Gypsy. On the way, ASI Omvir Dabas asked 4-5
public persons to join the proceedings, regarding the secret
information, but, none agreed and left the spot without disclosing
their names and addresses. At about 5:25 PM, raiding team
reached near the spot and they took their positions within the
perimeter of 30 meter in between Bus Stand Guru Dwara
Nanaksar and Ashram. At about 5:50 PM, two persons were seen
coming on foot from Khajuri side, who were identified by the
secret informer as Hemraj @ Shera and Neetu @ Nika.
Thereafter, the secret informer left from the spot.
4. Both the said persons stopped near Bus Stand Guru
Dwara Nanaksar and started waiting for someone. After about 5
minutes, when both the said persons started going towards
Khajuri side, they were apprehended by ASI Omvir Dabas with
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3the help of HC Ramesh and Ct. Pankaj at 5:55 PM and their
names were revealed as Hemraj @ Shera S/o Late Sh. Niranjan
Singh and Neetu @ Nika S/o Sh. Jeet Masih. ASI Omvir Dabas
introduced himself and other team members before the said
person. ASI Omvir Dabas also asked 5-6 public persons, who
were already gathered there, to join the proceedings, but, none
agreed and left the spot without disclosing their names and
addresses.
5. ASI Omvir Dabas told both the said persons about
the secret information. They were also told about their legal
rights regarding the search proceedings and informed that their
search was to be conducted in the presence of any Magistrate or
Gazetted Officer, but, both of them had refused to be searched in
presence of Magistrate or Gazetted Officer. Thereafter, ASI
Omvir Dabas gave notice u/s 50 of Narcotics Drugs and
Psychotropic Substances Act, 1985 (“NDPS Act“) to accused
Hemraj @ Shera and took his search.
6. During the search of accused Hemraj @ Shera, one
black colour polythene, containing another transparent polythene
tied with rubber band, which was containing brown
(MUTMAILA) colour substance, was found and on checking the
said brown colour powder with the field testing kit by ASI Omvir
Dabas, it was confirmed as Heroin. The total weight of the
recovered smack (heroin) was found to be 250 grams. Two
samples of 5-5 grams each were taken out of the material.
Pullandas were prepared and given Mark A-1, A-2 & A.
Pullandas were sealed and taken into possession.
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7. Thereafter, ASI Omvir Dabas gave notice u/s 50 of
Narcotics Drugs and Psychotropic Substances Act, 1985 (“NDPS
Act“) to accused Neetu @ Nika and took his search. During the
search of accused Neetu @ Nika, one black colour polythene,
containing another transparent polythene tied with rubber band,
which was containing brown (MUTMAILA) colour substance,
was found and on checking the said brown colour powder with
the field testing kit by ASI Omvir Dabas, it was confirmed as
Heroin. The total weight of the recovered smack (heroin) was
found to be 450 grams. Two samples of 5-5 grams each were
taken out of the material. Pullandas were prepared and given
Mark B-1, B-2 & B. Pullandas were sealed and taken into
possession. Samples were sent to the FSL. Thereafter, ASI Omvir
Dabas prepared rukka and got the FIR registered u/s. 21/29 of
NDPS Act. Thereafter, investigation of the present case was
carried out by SI Omvir Dabas.
8. SI Omvir Dabas prepared site plan at the instance of
ASI Pawan Kumar. After interrogation, accused Hemraj @ Shera
and Neetu @ Nika were arrested and personally searched by SI
Omvir Dabas. Disclosure statements of both the accused were
also recorded and case property was deposited in malkhana.
Special reports u/s. 57 NDPS Act regarding arrest of both the
accused persons and recovery of the Heroin were prepared.
9. During investigation, FSL result was received and
after completing the investigation, chargesheet was filed against
both the accused persons namely Hemraj @ Shera and Neetu @
Nika u/s 21/29 of NDPS Act alongwith the FSL result.
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10. Cognizance of the offences u/s. 21(c)/29 of NDPS
Act was taken. Vide order dated 13.12.2017, charges u/s 29 r/w.
Sec. 21(c) & Sec. 21(c) of NDPS Act were framed against both
the accused persons to which, they pleaded not guilty and
claimed trial.
11. During trial, case against accused Neetu @ Nika
stood abated on 05.04.2023, as he had expired on 09.06.2022.
12. Prosecution examined as many as 13 witnesses to
prove the charges against both the accused persons.
13. HC Amarjit Singh has been examined as PW-1. He
has deposed that in the intervening night of 25/26.05.2017 at
about 11:45 pm, on receipt of rukka from Ct. Pankaj, he got
registered FIR No. 78/17 u/s 21/29 NDPS Act on computer
through computer operator. He proved the copy of FIR as
Ex.PW1/A and kayami DD No. 20 and endorsement regarding
same made by him on the rukka as Ex.PW1/B. He had also issued
certificate u/s. 65-B Indian Evidence Act regarding the aforesaid
FIR as Ex.PW1/C and proved copies of DD No. 20 dt.
25.05.2017 and DD No. 2 dated 26.05.2017 as Ex.PW1/D and
Ex.PW1/E.
14. HC Ramesh has been examined as PW-2. He has
deposed that on 25.05.2017 at about 4:25 pm, he had joined
investigation of the present case with ASI Pawan Kumar and
being part of the raiding party, they alongwith the secret informer
left their office and reached near Bus Stand, Guru Dwara
Nanaksar. At about 5:25 pm, ASI Pawan Kumar briefed them and
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PAHWA Date:
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6they took their respective positions as per directions of ASI
Pawan Kumar. Thereafter, at about 5:50 pm, two persons were
seen coming on foot from the side of Khajuri and on seeing them,
secret informer had pointed out towards them as accused Hemraj
@ Shera and co-accused Neetu @ Nika (proceedings already
abated). Accused Hemraj @ Shera was apprised about the secret
information as well as the legal rights of the accused regarding
the search proceedings by ASI Pawan Kumar. He also deposed
that thereafter, ASI Pawan Kumar had prepared notice u/s. 50
NDPS Act in Hindi and served the original copy upon accused
Hemraj @ Shera. ASI Pawan Kumar had recorded refusal of the
accused Hemraj @ Shera on the carbon copy of the notice and
after that ASI Pawan Kumar conducted search of accused Hemraj
@ Shera.
15. He further deposed that during search, one black
colour polythene containing some weight was recovered from the
right side pocket of accused Hemraj @ Shera and on checking,
one transparent polythene tied with rubber band was found. The
said polythene was containing some muddy colour powder like
material. On checking with the help of field testing kit by ASI
Pawan Kumar, it was found to be Heroin. The said polythene
containing heroin was weighed with electronic weighing machine
which was found to be 250 grams. Out of the said 250 grams
heroin, two samples of 5 grams heroin were taken out and
thereafter, their separate pullandas were prepared and same were
given Mark A1 and Mark A2. The remaining heroin was given
Mark A. Thereafter, all the pullandas were taken into possession
by ASI Pawan Kumar vide seizure memo Ex.PW2/A. Thereafter,
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7all the pullandas were taken into possession by ASI Pawan
Kumar vide seizure memo Ex.PW2/B. After that ASI Pawan had
made rukka and gave the said rukka, all the aforesaid six sealed
pullandas, two FSL forms and two carbon copies of seizure
memos to Ct. Pankaj.
16. He further deposed that at about 3:00 pm, SI Omvir
Dabas had come at the spot and ASI Pawan had handed over the
custody of accused Hemraj @ Shera alongwith carbon copies of
notice u/s. 50 NDPS Act. After interrogation, accused Hemraj @
Shera was arrested in the present case, vide arrest memo
Ex.PW2/C and his disclosure statement was recorded, vide
Ex.PW2/D. His personal search was also conducted, vide
personal search memo Ex.PW2/G.
17. PW-2 also proved the site plan, vide Ex.PW2/M and
identified his signature thereon at point A. He also correctly
identified accused Hemraj @ Shera in the court as well as the
case property i.e. light brown colour/muddy colour sample
material recovered from the possession of accused Hemraj @
Shera (Mark A-1), as Ex. P-1, light brown colour/muddy colour
sample material recovered from the possession of accused
Hemraj @ Shera (Mark A-2), as Ex. P-2, light brown
colour/muddy colour another sample material recovered from the
possession of accused Hemraj @ Shera (Mark A-1), as Ex. P-3.
He also proved the notice served upon accused Hemraj @ Shera,
vide Ex. PW2/N-1.
18. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he denied the
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8suggestion that ASI Pawan Kumar did not receive any secret
information, nor he called him and briefed him about the same.
He also denied the suggestion that no notice u/s. 50 NDPS Act
was served upon accused Hemraj by ASI Pawan or for this
reason, the holes on pages of notice and other documents of
chargesheet is at the same place, or that no recovery of
contraband was effected in his presence or for this reason, he
could not tell the exact colour of the material. He also denied the
suggestion that the samples of 5 gram material of light brown
colour never reached FSL, or that accused was not explained
about his legal rights, or that he was not asked as to whether he
wanted his search to be conducted in the presence of any
Gazetted Officer or Magistrate. He also denied the suggestion
that right thumb impressions of accused Hemraj was obtained on
blank papers which were later on fabricated to be notice u/s. 50
NDPS Act, or that no notice u/s. 50 NDPS Act was served upon
accused Hemraj in the manner as deposed by him, or that the
same was later on shown to be recovered from him, or that
nothing was recovered from accused Hemraj as deposed by him.
19. Sh. Jitendra Kumar, Sr. Officer (Chemistry), FSL,
Rohini has been examined as PW-3. He has deposed that on
29.05.2017, he chemically examined two sealed parcels in
connection with the present case. Parcel No. A-1 was found
containing Ex. A-1 i.e. pink colour powder material in a
polythene pouch weighing 6.04 grams with polythene and rubber
band. Parcel No. B-1 was found containing Ex. B-1 i.e. grey
colour powder material in a polythene pouch weighing 6.16
grams with polythene and rubber band. He also deposed that on
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9chemical, TLC, GC & GC-MS examination, Ex. A-1 was found
to contain Diacetylmorphine, 6-Monoacetylmorphine,
Acetaminophne & Acetylcodeine. Ex. A-1 was found to contain
Diacetylmorphine 14% and Ex. B-1 was found to contain
Diacetylmorphine, 6-Monoacetylmorphine, Acetaminophne,
Phenobarbital, Alprazolam & Trimethoprim. Ex. B-1 was found
to contain Diacetylmorphine, Phenobarbital & Alprazolam, 5.3%,
0.3% and 2.7 % respectively. He proved his detailed report, vide
Ex.PW3/A and identified his signature thereon at point A. He
also identified the material examined by him as Ex. P-3 & Ex.
P-6 in the court and also identified his signatures on the
polythene at point X. He was cross-examined by Ld. Counsel for
the accused Hemraj @ Shera. In his cross-examination, he
admitted that he had not received any parcel weighing 5 gram of
light colour material in this case and that the muddy colour and
pink colour are different colours.
20. Ct. Pankaj has been examined as PW-4. He has
deposed that on 25.05.2017, he had joined investigation with ASI
Pawan Kumar, who had organized a raiding party and after
taking IO bag, field testing kit and electronic weighing machine,
they alongwith the secret informer had left their office and
reached at the spot, where accused Hemraj @ Shera was
apprehended and notice u/s. 50 of NDPS Act was served upon
him. He proved the carbon copy of the notice u/s. 50 of NDPS
Act as Ex.PW2/K and identified his signature thereon at point C
and at point D on the refusal of the accused. He also proved the
original notice u/s. 50 of NDPS Act served upon the accused
Hemraj, vide Ex.PW2/N-1 and identified his signature at point B.SC No. 339/2017 State Vs. Hemraj @ Shera
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10
21. He further deposed that 250 grams heroin was
recovered from the possession of the accused and after sampling,
same was taken into possession, vide seizure memo Ex.PW2/A.
He correctly identified accused Hemraj @ Shera in the court as
well as the case property i.e. muddy colour (pink coloured)
material which was recovered from accused Hemraj @ Shera as
Ex. P-1 alongwith the samples heroin as Ex. P-2 & Ex. P-3.
22. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he had not
made any separate departure entry before leaving from his office
for raid and deposed that except for the passersby, Auto drivers
and bus drivers were not asked to join the raiding team by ASI
Pawan in his presence and despite request, the passersby who
were asked to join the raiding team, did not divulge their names
and addresses and also deposed that they parked their vehicle
near Guru Dwara Nanaksar Ashram and the distance between the
place of parking of vehicle and said Guru Dwara was about 30-40
meters. He also deposed that the distance between the place from
where accused Hemraj @ Shera was apprehended and Guru
Dwara Nanaksar Ashram was about 10-20 meters or so. They had
reached at the place of apprehension of accused at 5:15 pm and
he had finally left the spot at about 10:30 pm.
23. He further deposed that the place wherefrom
accused was arrested, was connecting road to Wazirabad and it
usually remains busy and heavy vehicles pass on the said road,
but, none of the drivers of the vehicles passing on the said road,
was requested by ASI Pawan to join the proceedings in his
presence and none from inside Guru Dwara Nanaksar AshramSC No. 339/2017 State Vs. Hemraj @ Shera
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11was called to join the proceedings even after apprehension of the
accused and also deposed that he was not having any list of
Gazetted Officers and Magistrates of the area with him. He
denied the suggestion that no notice u/s. 50 NDPS Act was
served upon accused Hemraj @ Shera by ASI Pawan or for this
reason, the holes on pages of notice and other documents of
chargesheet is at the same place, or that accused was not
explained about his legal rights, or that he was not asked as to
whether he wanted his search to be conducted in the presence of
any Gazetted Officer or Magistrate, or that nothing was recovered
from accused Hemraj @ Shera as deposed by him, or that thumb
impressions of accused Hemraj were obtained on some blank
papers and those papers were fabricated later on against him, or
that he never joined investigation of this case at any point of
time, or that accused Hemraj @ Shera has been falsely implicated
in the present case.
24. ASI Yasin Khan has been examined as PW-5. He
has deposed that on 29.05.17, as per instructions of IO/SI Ombir
Dabas, he had collected two sealed pullandas (Mark A1 and B1),
two FSL forms, copy of FIR and seizure memos from the
MHC(M) ASI Jag Narain, vide RC No. 152/21 for depositing the
same at FSL Rohini and after depositing the case property at
FSL, he brought back received copy of RC and acknowledgement
receipt and handed over the same to MHC(M).
25. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he had
collected the pullandas from MHC(M) at PS Crime Branch at
about 8:15 am and the exhibits were deposited by him at FSL,SC No. 339/2017 State Vs. Hemraj @ Shera
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12Rohini at about 10:30 am. He denied the suggestion that he had
not collected the aforesaid pullandas from MHC(M) either on
29.05.2017 or on any other day, or that he never deposited the
same at FSL, Rohini.
26. Sh. Sanjeev Tyagi, ACP (HQ) has been examined as
PW-6. He has deposed that on 25.05.2017 at about 4:14 PM,
Insp. Brijpal Singh had informed him regarding the secret
information and thereafter, he directed Insp. Brijpal Singh to
conduct a raid. His Reader produced a report u/s. 42 NDPS Act
which was forwarded by Insp. Brijpal Singh, he perused the said
report and made his endorsement thereon. He identified his initial
at point A on the report Ex.PW6/A. He also deposed that on the
next day i.e. 26.05.2017, his Reader produced a report u/s. 57
NDPS Act duly forwarded by Insp. Brijpal Singh regarding
seizure of the contraband item i.e. Heroin. He perused the said
report and made his endorsement thereon. He also identified his
initial at point A on the report Ex.PW6/B. He also deposed that
on the same day i.e. 26.05.2017, his Reader also produced
another report u/s. 57 NDPS Act duly forwarded by Insp. Brijpal
Singh regarding arrest of both the accused persons. He perused
the said report and made his endorsement thereon. He also
identified his initial at point A on the report Ex.PW6/C.
27. ASI Dinesh Kumar has been examined as PW-7. He
has deposed that on 25.05.17, DD No. 20 dt. 25.05.17 consisting
report u/s 42 NDPS Act sent by ASI Pawan Kumar and
forwarded by Insp. Brijpal, was received by him. He made
necessary entry with regard to said report in Diary Register at srl.
no. 1126 and deposed that on the next day i.e. 26.05.17, he had
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13received report u/s 57 NDPS Act sent by ASI Pawan, duly
forwarded by Insp. Brijpal regarding seizure of contraband item
i.e. Heroin and another report u/s 57 NDPS Act sent by SI Ombir
Dabas, duly forwarded by Insp. Brijpal regarding arrest of the
accused Hemraj @ Shera in this case. He had made necessary
entry with regard to both the said reports in Diary Register at srl.
no. 1144 and 1145. He also proved relevant pages containing
aforesaid entries of diary register as Ex.PW7/A (colly.).
28. Insp. Brijpal Singh has been examined as PW-8. He
has deposed that on 25.05.17 at about 4:10 pm, ASI Pawan
Kumar had produced one informer before him stating that he had
received a secret information and after verifying the secret
information, he conveyed the same to ACP, Narcotics Sh.
Sanjeev Tyagi, who had ordered to conduct a raid as per law and
also deposed that the secret information was reduced into writing
by ASI Pawan Kumar, vide DD No. 20 as Ex.PW6/A. He also
further deposed that on 26.05.17, SI Ombir Dabas had produced
accused Hem Raj @ Shera before him and he had verified the
facts from the accused and found his arrest justified. He proved
the special report prepared by ASI Pawan Kumar u/s 57 NDPS
Act as Ex.PW6/B regarding seizure of contraband and special
report prepared by SI Ombir Dabas u/s 57 NDPS Act as
Ex.PW6/C regarding arrest of the accused.
29. ASI Mahesh Chand has been examined as PW-9. He
has deposed that on 25.01.17, he had issued seal of “5A P.S/NB
Delhi” to ASI Pawan Kumar, vide entry at Srl. No. 10 in the
relevant register maintained in that regard and proved the
photocopy thereof as Ex.PW9/A and deposed that on 06.01.17,
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14he had issued field testing kit to ASI Pawan Kumar, vide entry at
Srl. No. 11 in the relevant register maintained in that regard and
proved the photocopy thereof as Ex.PW9/B. He also deposed that
on 25.05.17, he had issued electronic weighing machine to ASI
Pawan Kumar, vide entry at Srl. No. 19 in the relevant register
maintained in that regard and the said weighing machine was
returned back to him on 26.05.2017. He proved the photocopy
thereof as Ex.PW9/C.
30. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he deposed
that as per record, the field testing kit issued to ASI Pawan
Kumar, was not returned back in the malkhana on the aforesaid
date and the same was received in the malkhana from Narcotic
Control Bureau on 02.01.2017. He also deposed that he had not
mentioned the time at which the field testing kit or seal were
issued in entries Ex.PW9/A and Ex.PW9/B. He denied the
suggestion that the entries Ex.PW9/A to Ex.PW9/C are fabricated
or ante dated at the instance of IO or senior police officers of
Crime Branch.
31. Insp. Subhash Malik has been examined as PW-10.
He has deposed that on 25.05.2017 at about 11:45 pm, Ct. Pankaj
had produced six sealed pullandas (Mark A, A-1, A-2, B, B-1 and
B-2), FSL forms and copies of seizure memos. He had inspected
the said pullandas and affixed his seal of “SM” on all the said six
sealed pullandas as also on the FSL forms. Thereafter, he
mentioned the FIR No. 78/17 as told to him by the Duty Officer,
on all the said pullandas, both the FSL forms and on copies of
both the seizure memos. He had also put his signatures on all the
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15said six pullandas. He also deposed that he had handed over all
the aforesaid six sealed pullandas, both the FSL forms and copies
of both the seizure memos to the concerned MHC(M), who made
relevant entry in register no. 19 in that regard and he had put his
signature in the said entry. He proved the photocopy of register
no. 19 containing relevant entry as Ex.PW10/A. He also made
DD No. 21 dt. 25.05.17 with regard to the aforesaid proceedings
u/s 55 NDPS Act carried out by him and proved the said DD
entry as Ex.PW10/B. He also correctly identified the case
properties in the court.
32. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he deposed
that after affixing his seal on the aforesaid pullandas and FSL
forms, he had handed over his seal to some police official and he
was having only one seal of specimen ‘SM’. He denied the
suggestion that no such pullandas or documents were produced
before him by Ct. Pankaj, or that he had not affixed his seal or
signature on any such pullanda, or that he had not deposited the
aforesaid exhibits in the malkhana, or that the relevant entry at Sl.
No. 2575 in register no. 19 was made subsequently at his instance
by making it ante-dated. He also denied the suggestion that DD
entry no. 21 was also made subsequently by making it ante-dated
or ante-timed, or that nothing was recovered from the accused or
at his instance, or that the recovery of contraband item was
falsely planted upon the accused.
33. ASI Jag Narain has been examined as PW-11. He
has deposed that on 25.05.17, Insp. Subhash Malik, the then SHO
PS Crime Branch had handed over to him six sealed pullandas,
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16which were duly sealed with the seal of “5A PS NB DELHI” and
“SM” alongwith two FSL forms and two carbon copies of seizure
memos. He had deposited the said sealed parcels alongwith
documents in the malkhana, vide entry at Sl. No. 2575/17 in
register no. 19. He also deposed that on 26.05.17, SI Ombir
Dabas had deposited personal search articles recovered during
personal search of accused Hemraj @ Shera, original notice u/s
50 NDPS Act and copies of personal search memos in the
malkhana, vide entry at Sl. No. 2576/17 in register no. 19.
34. PW-11 further deposed that on 29.05.17, he had
handed over two sealed cloth parcels (Mark A-1 and B-1)
alongwith two FSL forms and relevant documents to ASI Yasin
Khan, vide RC No. 152/21/17 for being deposited in office of
FSL Rohini. He had made relevant endorsement in this regard
against entry at Sl. No. 2575/17 in register no. 19. After
depositing the same, ASI Yasin Khan had handed over
acknowledgment receipt of FSL and copy of aforesaid road
certificate to him. He proved the photocopy of entry at Sl. No.
2575/17 as Ex.PW10/A and that of at Sl. No. 2576/17 as
Ex.PW11/A. He also proved the copy of RC No. 152/21/17 as
Ex.PW11/B and copy of acknowledgment receipt of FSL Rohini
as Ex.PW11/C.
35. He further deposed that on 24.10.17, HC Ramesh
Chand had deposited two pullandas sealed with the seal of “FSL
DELHI” alongwith one sealed envelope containing FSL result.
He deposited both the said pullandas in the malkhana and made
relevant endorsement in this regard against entry at Sl. No.
2575/17 in register no. 19.
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36. ASI Pawan Kumar has been examined as PW-12.
He has deposed that on 25.05.2017 at about 4:00 pm, one secret
informer came to his office and informed about the secret
information and after satisfying himself, he had produced the
secret informer before Insp. Brijpal and after satisfying himself,
Insp. Brijpal informed about the secret information to Sh.
Sanjeev Kumar Tyagi, ACP, who had directed Insp. Brijpal to
take immediate action as per law and to conduct the raid and also
deposed that at about 4:20 PM, he had lodged DD No. 20 in daily
dairy register regarding the secret information for compliance of
Sec. 42 of NDPS Act. He proved the said DD No. 20, vide
Ex.PW6/A and identified his signature at point B. He also
deposed that on the direction of Insp. Brijpal, he had constituted a
raiding party consisting himself, HC Ramesh, Ct. Pankaj and
after lodging DD No. 21, they left their office alongwith the
secret informer. He proved the copy of DD No. 21, as
Ex.PW12/A1.
37. PW-12 further deposed that on the identification of
the secret informer, accused Hemraj @ Shera was apprehended
and thereafter, he had prepared notice u/s. 50 of NDPS Act and
served upon accused Hemraj @ Shera. Accused Hemraj @ Shera
refused to exercise his right for his formal search. He proved the
carbon copy of notice u/s. 50 NDPS Act served upon accused
Hemraj @ Shera, as Ex.PW2/K and his refusal, as Ex.PW12/A.
During formal search of accused Hemraj @ Shera, 250 grams of
heroin was recovered and after sampling, the recovered heroin
was taken into possession, vide seizure memo Ex.PW2/A.
38. PW-12 further deposed that thereafter, he had
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18prepared rukka u/s. 21/29 NDPS Act and got the FIR registered
through Ct. Pankaj. He proved the rukka, as Ex.PW12/C and
deposed that he had proved the site plan, prepared by SI Omvir
Dabas at his instance, vide Ex.PW2/M and deposed that accused
Hemraj @ Shera was arrested in the present case, vide arrest
memo Ex.PW2/C and personally searched, vide memo
Ex.PW2/G. His disclosure statement was also recorded, vide
Ex.PW2/D. He also deposed that thereafter, he had prepared
report u/s. 57 of NDPS Act regarding recovery of heroin from the
accused Hemraj @ Shera, vide Ex.PW6/B. He also correctly
identified accused Hemraj @ Shera as well as the case properties
in the court.
39. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he deposed
that no one was present alongwith him, except the secret informer
when he had informed about the secret information given to Insp.
Brij Pal. The electronic weighing machine belongs to the
Department and same was with MHC(M). He had got issued the
electronic weighing machine from the malkhana. He had not
checked any calibration certificate of said electronic weighing
machine. He denied the suggestion that the electronic weighing
machine issued to him was defective one, or that the accused was
not apprehended from the said spot, or that accused was lifted
from his house and later on, falsely implicated in the present
case, or that no notice u/s 50 NDPS Act was served upon the
accused, or that no contraband was recovered from the possession
of the accused.
40. He further deposed that seal after use was handed
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19over to HC Ramesh. HC Ramesh had returned the said seal to
him after one week and during the said duration, it remained with
the possession of HC Ramesh. He also denied the suggestion that
he had not used the said seal during the course of investigation,
or that the seal upon the parcels were manipulated later on, or
that the contraband was planted upon the accused, or that the
documents in this regard were false and fabricated.
41. He also deposed that SI Omveer Dabas had not
produced the accused before SHO or Inspector in his presence
and SI Omveer Dabas had not deposited the personal search
belongings of the accused in the malkhana in his presence. He
also denied the suggestion that he had not prepared a Report u/s
57 NDPS Act, or that no secret information was received to him
from the secret informer, or that the secret informer was not
produced before Insp. Brij Pal, or that all the documents and
proceedings were conducted by him while sitting in the office.
42. Insp. Omvir Dabas has been examined as PW-13.
He has deposed that on 26.05.2017, Ct. Pankaj had come to his
office and handed over the original rukka, copy of FIR and
certificate u/s. 65-B Indian Evidence Act. Thereafter, he lodged
DD No. 2, vide Ex.PW13/A and deposed that at about 3:00 AM,
he had left his office for the spot, where, ASI Pawan Kumar had
handed over the carbon copy of notice u/s. 50 of NDPS Act,
original seizure memos and custody of the accused Hemraj @
Shera. Thereafter, he had prepared site plan at the instance of ASI
Pawan Kumar, vide Ex.PW2/M. He also deposed that he had
interrogated accused Hemraj @ Shera and arrested him, vide
arrest memo Ex.PW2/C and conducted his personal search, vide
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20personal search memo Ex.PW2/G. He also recorded his
disclosure statement, vide Ex.PW2/D.
43. PW-13 further deposed that at about 10:45 AM, he
had lodged DD No. 7, vide Ex.PW13/B and prepared special
report u/s. 57 NDPS Act regarding arrest of accused Hemraj @
Shera, vide Ex.PW6/C and deposed that on 28.05.2017, accused
Hemraj @ Shera had fled away from the police custody and an
FIR No. 80/17 u/s. 224 IPC at PS Crime Branch was lodged and
thereafter, accused Hemraj @ Shera was apprehended again. He
also correctly identified accused Hemraj @ Shera as well as the
case properties in the court.
44. He was cross-examined by Ld. Counsel for the
accused Hemraj @ Shera. In his cross-examination, he deposed
that he reached at the spot at around 3 AM and the information of
arrest of accused Hemraj @ Shera was given to his family
members. He had asked public persons to join at the time of
preparation of arrest memo and personal search memo of accused
Hemraj @ Shera. He denied the suggestion that he had not visited
at the spot at any point of time, or that he had not prepared the
arrest memo and personal search of accused at the spot, or that all
the documents were prepared while sitting in the office. He also
denied the suggestion that accused Hemraj @ Shera had not
made any disclosure statement, or that he had obtained his
signatures on some blank papers and later on, converted into the
false and fabricated documents, or that he had not prepared any
report u/s 57 NDPS Act in the present case during the course of
investigation, or that he had not conducted the investigation in
fair manner, or that all the documents prepared while sitting in
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21their office, or that no contraband was recovered from the
accused in the present case, or that during the course of
investigation, the source of contraband could not be ascertained
as the story in this regard was concocted by them and the accused
was falsely implicated in the present case.
45. Statement of accused Hemraj @ Shera u/s 313 CrPC
was recorded. He denied all the incriminating circumstances. He
stated that nothing was recovered from his possession and the
alleged recovery was planted upon him by the police, as, before
registration of the present case, some scuffle had taken place
between him and local police officials. Thereafter, he was falsely
implicated in the present case by the police officials. Accused did
not wish to lead evidence in his defence.
46. I have heard Sh. F. M. Ansari, learned Addl. PP for
the State and Sh. Parveen, learned Legal Aid Counsel for the
accused.
47. Sh. F. M. Ansari, Ld. Additional PP for the State
submitted that prosecution has proved the recovery of contraband
from the accused. He submitted that all the provisions of NDPS
Act including Sec. 50 were duly complied with. He contended
that since the charge has been proved beyond reasonable doubt,
therefore, accused Hemraj @ Shera is liable to be convicted in
the present case.
48. Ld. Legal Aid Counsel for accused submitted to the
contrary. He submitted that in the present case, as per the
chargesheet, the total weight of the heroin with polythene
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22recovered from the accused is 250 grams, which falls under the
commercial quantity, however, the total weight of the heroin
allegedly recovered from the accused without polythene may
differ and it may fall under the intermediate quantity. He has also
submitted that the samples of the recovered Heroin were drawn in
the absence of any Gazetted Officer or Magistrate, which may
create doubt in the story of prosecution.
49. He has further submitted that as per the chargesheet,
the weight of the samples drawn at the spot was 5 gram each,
however, as per the FSL report, the weight of the samples were
found 6 gram each and also submitted that there is no certificate
of correctness of the electronic weight machine on record. He has
also submitted that in the present case, the investigating agency
failed to find out the source of the recovered contraband
(Heroin), from whom the present accused procured the heroin
allegedly recovered in the present case.
50. It is further argued that in the present case, the
samples of the contraband were sent to FSL on the 4 th day from
its’ seizure. Hence, there is delay in sending the samples to the
FSL and also submitted that in the present case, there is non-
compliance of Sec. 50 as well as 42 of NDPS Act. Moreover, no
public witness was joined during the entire proceedings, nor it
was photographed or videographed.
51. I have considered the rival submissions, put forth by
both the sides.
52. From the submissions of the learned Counsel, the
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23following point for determination arise in the present case:
Whether the accused was found in possession of
250 gms. of Heroin as alleged?
53. Before a person can be held liable for commission of
any offence, the prosecution has to establish his guilt beyond
reasonable doubt.
54. I shall now delve into the appraisal of material
available on record.
55. The accused has been alleged to have been found in
possession of 250 grams Heroin. Admittedly, neither any public
person was joined during recovery proceedings, nor any public
person/independent witness has been examined during trial. All
the witnesses examined by the prosecution, are either police
officials or formal witnesses.
56. It is not in doubt that while the testimony of the
police witnesses in absence of independent witnesses may be
sufficient to secure conviction, if the same inspires confidence
during the trial, however, lack of independent witness in certain
cases can cast a doubt as to the credibility of the prosecution’s
case. It is not disputed that the investigating agency had sufficient
time to prepare before the raid was conducted.
57. As per the version of PWs, the public persons were
asked to join the investigation, but, none of them agreed and went
away without disclosing their names and addresses. Further, the
IO has not produced any notice u/s. 160 of the CrPC which ought
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24to have been served upon those available independent witnesses
who allegedly refused to join the investigation. The failure on the
part of the police personnel could only suggest that they were not
interested in joining the public persons in the police proceedings.
Failure on the part of the police officials to make sincere effort to
join public witnesses for the proceedings when they may be
available created reasonable doubt in the prosecution story.
Reference can be taken from the decision of Anoop Joshi Vs.
State 1992 (2) C.C. Cases 314 (HC), Hon’ble High Court of
Delhi has observed as under:
“It is repeatedly laid down by the Court that in such
cases it should be shown by the police that sincere
efforts have been made to join independent
witnesses. In the present case, it is evident that no
such sincere efforts have been made, particularly
when we find that shops were open and one or two
shop keepers could have been persuaded to join the
raiding party to witness the recovery being made
from the appellant. In case any of the shopkeepers
had declined to join the raiding party, the police
could have later on taken legal action against such
shopkeepers because they could not have escaped the
rigours of law while declining to perform their legal
duty to assist the police in investigation as a citizen,
which is an offence under the IPC.”
58. While the testimony of the police officials cannot be
discarded away merely because of the fact that no public
witnesses were examined, however, their testimonies have to be
scrutinized in more detail. If it is found that the police officials
during the course of investigation did not even make endeavor to
ask the public witnesses to join the investigation, did not even
ask their names and details, etc. then it would cast a very serious
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25doubt on the testimonies of the police officials. At this stage,
reference can be taken from the decision of the Hon’ble Supreme
Court in the case of Tahir Vs. State (Delhi) [(1996) 3 SCC 338],
dealing with a similar question, the Hon’ble Apex Court held
interalia the following:
“In our opinion no infirmity attaches to the testimony
of the police officials, merely because they belong to
the police force and there is no rule of law or
evidence which lays down that conviction cannot be
recorded on the evidence of the police officials, if
found reliable, unless corroborated by some
independent evidence. The Rule of Prudence,
however, only requires a more careful scrutiny of
their evidence, since they can be said to be interested
in the result of the case projected by them. Where the
evidence of the police officials, after careful scrutiny,
inspires confidence and is found to be trustworthy
and reliable, it can form basis of conviction and the
absence of some independent witness of the locality
to lend corroboration to their evidence, does not in
any way affect the creditworthiness of the
prosecution case. The obvious result of the above
discussion is that the statement of a police officer can
be relied upon and even form the basis of conviction
when it is reliable, trustworthy and preferably
corroborated by other evidence on record.”
59. The requirement of the police officials to make
endeavour to ask the public witnesses to join the proceedings was
discussed by the Hon’ble Supreme Court of India in the case of
Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it
interalia held the following:
“In a given case it may so happen that no such person
is available or, even if available, is not willing to be a
party to such search. It may also be that afterSC No. 339/2017 State Vs. Hemraj @ Shera
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26joining the search, such persons later on turn hostile.
In any of these eventualities the evidence of the
police officers who conducted the search cannot be
disbelieved solely on the ground that no independent
and respectable witness was examined to prove the
search but if it is found as in the present case that no
attempt was even made by the concerned police
officer to join with him some persons of the locality
who were admittedly available to witness the
recovery, it would affect the weight of evidence of
the Police Officer, though not its admissibility.”
60. Therefore, in view of the above mentioned law, it
becomes clear that while the testimony of the police officials
cannot be discarded away altogether in the absence of any public
witnesses, however, it would be prudent to examine or scrutinize
their testimonies more closely and should preferably be
corroborated.
61. Non-compliance of Sec. 52-A of NDPS Act. To add
to it, it is worth-noticing that even after seizure of the recovered
contrabands, no steps u/s. 52-A of NDPS Act were taken by the
IO. The IO failed to comply with the provisions of Sec. 52-A of
NDPS Act altogether. Although, merely non-compliance of Sec.
52-A of NDPS Act in itself does result into acquittal of the
accused, yet there are other factors also, which further weakens
the case of the prosecution.
62. The notice u/s. 50 of NDPS Act served upon the
accused before making his search is also not in full compliance of
the requirement laid down in Sec. 50 of the NDPS Act. Sec. 50
of the NDPS Act provides that it is the duty of the member of the
raiding team to inform the accused about his legal right that if he
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27desires, he can be taken to a nearest Magistrate or Gazetted
Officer. The relevant portion of the notice u/s. 50 of NDPS Act
(Ex.PW4/Article-1) is reproduced herein below:-
“YE AAPKA KANOONI ADHIKAR HAI KI
YADI AAP CHAHE TO AAPKI TALASHI KISI
RAJPATRIT ADHIKARI YA MAGISTRATE
SAHAB KE SAAMNE LI JA SAKTI HAI, JISKE
LIYE AAPKO KISI NAZDIKI RAJPATRIT
ADHIKARI YA MAGISTRATE SAHAB KE
SAMNE PESH KIYA JA SAKTA HAI”
(emphasis supplied)
63. The above quoted portion of the notice u/s. 50 of
NDPS Act (Ex.PW2/K) clearly shows that the word “nearest” is
missing before the word “magistrate’, when the accused was
asked that he could be taken to a magistrate. So, what it implies is
that if accused desires to be taken to the magistrate, it could be
‘any magistrate’ and not necessarily the ‘nearest magistrate’,
which shows that Sec. 50 of the NDPS Act has not been duly
complied with in it’s true letter & spirit.
64. It is well settled that section 50 of NDPS Act is
mandatory and it has to be complied with strictly. In State of
Punjab v. Baldev Singh, 1999 Drug Cases (Narcotics) 150
[(1999) 3 SCC 977], it was held by the Hon’ble Supreme Court,
as under:-
“28. This Court cannot overlook 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
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28taken 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.
The argument that keeping in view the growing drug
menace, an insistence on compliance with all the
safeguards contained in Section 50 may result in more
acquittals does not appeal to us. If the empowered
officer fails to comply with the requirements of Section
50 and an order or acquittal is recorded on that ground,
the prosecution must think itself for its lapses. Indeed 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.”
65. Relying upon the judgment, Baldev Singh‘s case,
the Hon’ble Supreme Court, in Noor Aga vs. State of Punjab &
Anr., 2008 Drug Cases (Narcotic) 352 [2008 (9) SCALE 681]
further held in Para 77 & 78, as under:-
“77. It is also necessary to bear in mind that superficially
a case may have an ugly look and thereby, prima facie,
shaking the conscience of any court but it is well settled
that suspicion, however high may be, can under no
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29evidence.
78. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place burden of proof in
this behalf on the accused; but a bare perusal the said
provision would clearly show that presumption would
operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when
it stands satisfied, the legal burden would shift. Even
then, the standard of proof required for the accused to
prove his innocence-is-not-as high as that of the
prosecution. Whereas the standard of proof required to
prove the guilt of accused on the prosecution is “beyond
all reasonable doubt” but it is preponderance of
probability’ on the accused. If the prosecution fails to
prove the foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is possession
of contraband by the accused cannot be said to have
been established.”
66. Therefore, it is no more res integra that provision of
Sec. 50 of NDPS Act has to be followed in letter & spirit and in
the considered opinion of this court, IO failed to strictly comply
with the same in the present case. To add to it, there is total non-
compliance of Sec. 52A of NDPS Act, as the sampling was done
at the spot itself and neither any inventory was made, nor any
application for sampling of the recovered contraband was moved
before the concerned Court for compliance of Sec. 52A of NDPS
Act.
67. Further, as per the record, the alleged contraband
was recovered on 25.05.2017, whereas, as per the testimony of
PW-5 ASI Yasin Khan, the samples were deposited in the FSL
on 29.05.2017 i.e. after 4 days and beyond the prescribed period
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30of 72 hours, which is in violation of the Standing Instructions,
which were issued by the NCB, vide Standing Instruction No.
1/88 and Standing Order No. 2/88. It appears that search and
seizure proceedings and subsequently sending of samples to the
FSL were also not done in compliance of the Standing Instruction
No. 1/89 issued by the Central Government in exercise of the
power conferred under 52A(1) of NDPS Act. Thus, it is not only
the case of total non-compliance of Sec. 52A of NDPS Act, but
also improper compliance of the Standing Instructions issued
vide Standing Orders No. 1/88, 2/88 & 1/89.
68. Keeping this in mind, the fact that no photography
or videography of the alleged recovery was done by the IO and
despite having ample time, no public person was joined during
search proceedings further weakens the case of the prosecution.
Although, all the witnesses, who were part of the raiding team,
have deposed that 5-6 passersby were asked to join the
proceedings, yet in the considered opinion of this court, the
efforts of the IO do not appear to be genuine and satisfactory. It
appears that the passersbys were asked only for the sake of
asking and the real intention to join them, was lacking on the part
of the IO.
69. Admittedly, there was a Gurudwara nearby and it
was a public place with a lot of movements of general public
despite that not a single person was joined in the proceedings
caused serious doubt upon the entire proceedings. In fact, in their
cross-examination, it was admitted by the witnesses that there
were shops nearby, but no shopkeeper was requested to join the
raiding team by ASI Pawan and no effort was made by ASI
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31Pawan to join any public person or Sewadar, who might be
present inside the Gurudwara Nanaksar, Ashram.
70. Also, the testimony of all the prosecution witnesses
is completely silent upon the aspect of the videography
/photography of the search proceedings. Admittedly, no
photographs of the search proceedings were taken at the time of
recovery. Thus, not finding any public witness and lack of
photography and videography of the alleged recovery in today’s
time and age casts a doubt on the credibility of the evidence. It is
not the case of the prosecution that any notice was served under
Section 100(8) of the CrPC on the person who refused to join the
raiding party in the process of seizure. It is also relevant to note
that the procedure prescribed in the NCB Handbook, which has
been adopted by the Delhi Police, though may not be binding,
however, prescribes photography and videography as a crucial
practice for obtaining evidence in order to avoid allegation in
regard to the foul play.
71. Lastly, it is further worth noticing that as per the
prosecution story, the weight of the contraband recovered was
250 grams, which is exactly at the threshold of the quantity
between intermediate and commercial, as prescribed under the
Act and as admitted by all the witnesses, the contraband was
weighed alongwith the polythene, in which it was found. Thus,
even 1 gram less of the contraband would have taken it out from
the category of commercial quantity and would have made it fall
under the category of intermediate quantity. In case, where, even
1 gram less of the contraband would have considerably changed
the guilt of the accused, IO should have been more careful in
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32weighing the alleged contraband. It has been held by the Hon’ble
Supreme Court of India, in number of cases that more serious the
offence, the stricter is the degree of proof. 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.
72. In view of the above discussion and various
contradictions and discrepancies noticed above, this court has no
hesitation in holding that in the present case, it is not safe to rely
solely on the uncorroborated testimonies of the police officials,
who were all part of the same raiding team. Non-joining of any
independent witness and non-compliance of Sec. 50 & 52-A of
NDPS Act is fatal to the prosecution case. It can be said that the
prosecution has failed to prove it’s case, beyond all reasonable
doubts that accused Hemraj @ Shera was found in possession of
alleged 250 grams of Heroin and the accused is entitled for
benefit of doubt and thus, accused Hemraj @ Shera stands
acquitted in the present case. Accused is required to furnish bail
bonds as per Sec. 437-A CrPC.
73. Case properties are confiscated and be destroyed as
per rules.
74. File be consigned to Record Room.
Announced in the open court
on 23rd day of August 2025
(PUNEET PAHWA)
Special Judge (NDPS)/Addl. Sessions Judge/
North East District/Karkardooma Courts/Delhi
SC No. 339/2017 State Vs. Hemraj @ Shera
Digitally signed
by PUNEET
PUNEET PAHWA
PAHWA Date:
2025.08.23
15:39:26 +0530